Front Page Titles (by Subject) CHAPTER VII: Alterations in the State of the ordinary Courts of Justice. - An Historical View of the English Government
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER VII: Alterations in the State of the ordinary Courts of Justice. - John Millar, An Historical View of the English Government 
An Historical View of the English Government, From the Settlement of the Saxons in Britain to the Revolution in 1688, in four volumes, edited by Mark Salber Philips and Dale R. Smith, introduction by Mark Salber Philips (Indianapolis: Liberty Fund, 2006).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Alterations in the State of the ordinary Courts of Justice.
The reign of Edward the first is no less distinguished by institutions of great importance relating to the distribution of justice, than by those which have been mentioned with regard to the legislative authority; and in both these particulars we may trace back to this period, the introduction of that regular system which we at present enjoy. The chief of those institutions respecting the exercise of the judicial power, and some of the most remarkable consequences with which they were attended, we shall proceed to examine.
Establishment of the Courts of Common Law, at Westminster.
The aula regis, which, after the Norman conquest, had risen by degrees out of the high<265> court of parliament, was productive of great advantages, by facilitating the distribution of justice. A full meeting of parliament could not be obtained, unless upon singular occasions; but this tribunal, consisting of a small number of judges, and these commonly attending the king’s person, could easily be held upon any emergency, and was ready to take cognizance of every complaint.
Although the institution of the aula regis, however, was, at the time of its introduction, accommodated to the infant state of improvements in the country, yet, in a subsequent period, when those improvements were advanced to greater maturity, and when the authority of government was better established, its interpositions became not only defective, but liable to many inconveniencies. For some time after the Norman conquest, the investigation of law-suits, although requiring a degree of attention unknown to the preceding ages, was not so tedious as to prevent their being commonly decided in the neighbourhood of the place in which they had been commenced. But when the advancement of law and government had farther multiplied the legal dis-<266>putes among the members of society, as well as the forms of judicial procedure, such a quick dispatch of the business was no longer practicable; and, as the court had no fixed residence, but followed the king, wherever the political state of the kingdom required his presence, it was frequently necessary that causes should be decided in a part of the country very remote from that in which they had arisen. The circumstances of this ambulatory court became thus inconsistent with the leisure and deliberation requisite for judges in forming their decisions; and still more incompatible with the interest of parties, who, in many cases, were obliged to attend the court from place to place, and sometimes, before they could obtain a final sentence, to travel over a great part of the kingdom. This attendance was rendered more expensive and burdensome, from the gradual advancement of law, as a science; which tended to promote the employment of lawyers, as well as other retainers of judicial controversy; and which, by contributing to encourage the fullest and most ample discussion of every plea, laid parties frequently under the<267> necessity of calling a number of witnesses in support of their several averments.
It was to be expected, therefore, that, according to the general improvements of the country, the attention of government would be directed to the removal of these inconveniencies; by rendering the aula regis a stationary court, or at least by appointing, that it should hold regular meetings at particular places.
While the natural progress of improvement in the kingdom appeared to require this alteration in the state of the principal tribunal, the increase of judicial business had likewise a tendency to distinguish different branches of jurisdiction, and to place them in the hands of different judges. The prosecutions carried on against atrocious offenders, to satisfy public justice, and to prevent the future commission of crimes, came to be viewed in a different light from private controversies concerning property, and the various rights and obligations which occur among individuals. Law-suits of the former sort, or criminal actions, are usually much less numerous than those of the latter, which have received the appellation of civil<268> actions. The trial of a crime is apt to be terminated in a more expeditious manner, than a civil process. Those heinous offences, which are supposed to require a prosecution at the instance of the public, excite, for the most part, a general indignation in the minds of men, who are therefore disposed to call for a speedy vengeance upon the criminal. In many of those offences, besides, it is necessary, that, before a prosecution is commenced, the person suspected of the crime should be arrested and imprisoned, in order that, if guilty, he may be prevented from escaping a trial; and the hardships to which he is thus unavoidably subjected, together with the difficulty of securing his person, afford additional reasons, from expediency, as well as from justice, for bringing the action against him to a speedy conclusion. To all these peculiar circumstances, we may add, that the laws of a country, respecting the punishment of crimes, are usually plain and simple; so that, in prosecutions of this nature, the judge can seldom have any farther difficulty, than what arises from the investigation of the fact.<269>
Law-suits about private property are in a different situation. A cool spectator feels himself but little interested in such disputes; and it seems reasonable that the parties should be left, in a great measure, to their own discretion, in bringing the business to an issue. As in such differences there is no reason to suspect that either party will endeavour to escape from justice, no imprisonment of either is necessary. The laws, too, relating to the civil rights of mankind, are apt to become so numerous and intricate, as may occasion great hesitation and embarrassment in applying them to particular cases. These peculiarities, by multiplying the pleadings of parties, as well as the delays of court, and by introducing peculiar forms of procedure, have contributed to distinguish a civil from a criminal action.
To these two species of law-suits may be subjoined a third, arising from disputes between the king and the people, in matters of revenue. Such law-suits are calculated to interest the public, at least the crown, like a criminal trial; at the same time that they are strictly of a mere pecuniary nature. Though<270> the public revenue of a state is really the property of the community, yet, in a monarchical government, the sovereign, who has the immediate disposal of that revenue, and who reaps more benefit from it than any other individual, is likely to consider it as his own patrimony, and to become particularly attentive to the support and encouragement of those judges by whom it is made effectual.
Thus, in every kingdom which is advancing in improvement, the same division of labour which takes place in the arts becomes also convenient in the conduct of law-suits; and, upon the same principle which gives rise to separate trades and professions, the province of distributing justice will be divided, and appropriated to a number of distinct judicatories.
These two objects, the fixing the residence of the aula regis to a particular place, and the division of the powers with which it was invested, had not been entirely overlooked by the English, before the time of Edward the first. From what has been already observed, it is evident, that an ambulatory court is less qualified for discussing a civil than a criminal<271> action. From the multitude of civil, in comparison of criminal causes, such an unsettled tribunal is attended with more inconvenience to the judge; from the greater length of time required in their discussion, it is more burdensome to the parties.
We accordingly find, that, by a clause in the great charter of king John, an improvement was made with respect to the exercise of civil jurisdiction; a court of common pleas was detached from the ancient aula regis, and was appointed, for the future, to have a permanent residence.* The making this an article in that great transaction between the king and his nobles, is a proof that a regulation of this nature was thought of the utmost importance; and that the want of it, in former times, had been a ground of general complaint. The new court of common pleas, which was thus erected, and held by separate judges, appears to have been deemed inferior in rank to the criminal court, held by the grand justiciary, and in which the king continued sometimes to sit in person.<272> For this reason, the latter court was permitted, in certain cases, to review the decisions of the former.†
Even at an earlier period, the aula regis, when acting as a court of revenue, had been so far distinguished as to have a separate president; that officer who had the charge of the public treasury.†
At last, in the reign of Edward the first, these changes were completed: the court of the grand justiciary was entirely abolished; and three permanent courts were established at Westminster;1 a court of king’s bench, to have the cognizance of crimes; a court of common pleas, to determine civil causes; and a court of exchequer, to decide in matters of revenue. As the jurisdiction committed to these three tribunals was totally different, they had, each of them, a separate place of meeting, a different president, and were composed of different judges.
There is ground to suppose, that the jealousy entertained by the king, of that great officer<273> who presided in the aula regis, co-operated with the natural course of things in abolishing this court, and in producing the institutions which came in its place. The office of the grand justiciary was originally an appendage of that of the lord high steward; who, in all the feudal kingdoms, was the chief officer of the king’s household, and the person next in power and dignity to the sovereign. As an employment of such high importance was naturally claimed by one of the greatest of the nobility, so his remaining in the possession of it could not fail to augment his opulence and authority. It was the same officer in France, who, at an early period, found himself in a condition to dethrone the Merovingian race of kings,2 and to establish the crown in his own family. We need not wonder, therefore, that Edward, a prince of equal policy and activity, and who had been successful in extending the regal authority, should be desirous, at the same time that he improved the judicial establishments, of putting an end to the existence of a minister, of whose designs he might be apprehensive, and whom he found it difficult to retain in subjection. The chief justice, who<274> presided in the new criminal court, was considered merely in the light of a judge, without any share of public administration.
In this, as well as in other branches of government, the history of modern Europe exhibits a remarkable uniformity; accompanied, however, with certain varieties, the effect of accidental circumstances. The cour de roy in France, which, like the English aula regis, had grown out of the national council, and which was likewise an ambulatory court, was at length productive of similar inconveniencies to those felt in England; and it was thought proper to remove them by giving a permanent residence to this tribunal. By an ordinance, in the reign of Philip the Fair, a branch of the cour de roy was fixed at Paris, and another at Thoulouse;* to both of which the name of parliaments was given. Other courts of the same nature were afterwards added in different districts, or had arisen in provinces which came to be reduced under the French monarchy; so that the whole kingdom, instead of being placed, like England, under one set of great tribunals, re-<275>maining in the capital, was divided into a number of separate territories, in each of which there was a particular court, invested with a supreme and independent jurisdiction. The multiplication of law-suits in any of those courts occasioned a subdivision of its members into different chambers, among which the different sorts of judicial business were distributed.
The aulic council in Germany, as I formerly observed, was, in like manner, an ambulatory court, which had arisen from the diet of the empire; but, from the slower improvements of that country, or perhaps from the decline of the imperial dignity, the attempts of the German legislators, to correct this inconvenient mode of distributing justice, occurred at a much later period. In the year 1495, and the reign of the emperor Maximilian,3 was formed the imperial chamber, a new and stationary court, with similar powers to those of the aulic council. But, as this latter tribunal was not abolished, the German empire has come to be provided with two distinct judicatures, the one ambulatory, the other with a<276> fixed residence, which have, in the greater part of causes, a concurrent jurisdiction.
In Scotland, the aula regis, both in its original constitution, and in its powers, was perfectly similar to the court of the same name in England; and, from similar motives of conveniency, it was afterwards broken into the different courts, of the session, the exchequer, and the justiciary; corresponding to the distinction of civil, fiscal, and criminal causes; and these tribunals came, at length, to have a regular establishment in the capital.
In considering the policy of the judicial institutions, in modern Europe, those of England and France, the two most powerful nations, appear to merit particular notice.
In France, the establishment of a number of parliaments, or supreme tribunals, in different districts throughout the kingdom, has the manifest advantage of diminishing the expence of litigation, by bringing the distribution of justice near the residence of the different inhabitants: an advantage which is farther improved, by the appointment of subordinate courts, held by the lieutenant civil and criminel, within the district of every superior judicatory.<277>
The independence of these great tribunals has, on the other hand, a tendency to produce inconsistent and jarring decisions. The districts belonging to the different parliaments may, so far as the interpretation of law, and the opinion of the judges, are concerned, be considered as in the state of separate kingdoms; having, in the ordinary operation of government, no means for securing uniformity of conduct. This, no doubt, is one great cause of the diversity of laws and customs, which, notwithstanding the general influence of civilized manners, is to be found at present in different parts of the French monarchy.
To remove this inconvenience, an extraordinary measure is, in some cases, adopted. The king, who is the fountain of justice, nominates, at pleasure, any number of persons, to receive an appeal from the decision of any particular parliament: and in this way, the members of one parliament are sometimes appointed to review the sentence of another. But this is a partial remedy, which cannot be effectual to prevent all discordance in the judgment of those different courts. In a few instances of gross absurdity, or flagrant in-<278>justice, the interposition of the sovereign may be procured; but it is impossible that he should give attention to the ordinary course of decisions, through the whole extent of his dominions, and restrain the numberless varieties and inconsistencies which are introduced into the common law of the country.
The judicial establishments of England are totally free from this inconveniency. As the principal courts have a jurisdiction over the whole kingdom, the principles of law, in every department, being determined by the same set of judges, are reduced to an uniform standard. As these courts have, besides, a fixed residence in the neighbourhood of each other, it was easy for them to communicate their opinions; and hence, in order to secure the propriety of their decisions, it became customary, in matters of great difficulty, depending before any one court, to refer the decision to a meeting composed of the judges of all the three courts. With the same view, it was provided by a statute in the reign of Edward the third, that the decisions of the court of exchequer may be reviewed by a court consisting of the judges of the king’s bench<279> and common pleas, with the assistance of certain officers of the crown; and by another statute, in the reign of Elizabeth,4 that certain proceedings of the king’s bench may be reviewed in a joint meeting of the justices of the common pleas and the barons of the exchequer.
The system of English jurisprudence has become what might be expected from this general plan of the English tribunals. There seems to be no country in the world where the lawyers and judges are so strongly impressed with a notion of the advantages derived from uniformity and stability in the rules of law. That a certain rule should be established, and invariably maintained, is justly esteemed of more consequence, than that the rule itself should be the most perfect imaginable. Almost any regulation whatever is preferable to fluctuation and uncertainty. To such an extreme, it should seem, has this principle been carried in England, as to have produced a maxim, that when any point has once been decided in a judicial controversy, or has even been settled by the opinion of any lawyer of good authority, it shall be regarded as not<280> liable, on any future occasion, to be altered or disputed.
But the English tribunals, according to the plan above mentioned, were calculated to render litigation expensive and troublesome, by giving to the capital a monopoly in the distribution of justice. The inferior judicatories, those of the baron in his own demesne, and of the sheriff in each county, had, upon the advancement of the aula regis, been so far reduced as to retain only the cognizance of petty crimes, and the determination of civil actions below the value of forty shillings. These, therefore, could be of little service in settling disputes, and restraining injustice, throughout the kingdom; and, as no intermediate courts were provided, the most part of law-suits, both in civil and criminal matters, and whether of small or of great importance, could only be decided by the courts of Westminster-hall. In a country so extensive as England, a great proportion of the inhabitants were thus removed to a great distance from the seat of justice, and laid under many disadvantages in making their rights effectual.<281>
To supply this deficiency in the ordinary establishment, the king appointed certain extraordinary judges, as auxiliaries to those of the capital, for the purpose of circulating the administration of justice through every corner of the kingdom.
Although the distant residence of individuals from the seat of justice is, in all cases, inconvenient, it is more so in criminal than in civil actions. It seldom happens that a crime can be proved in any other manner than by parole evidence; for a criminal does not usually act with so little caution as to afford a written document of his guilt; neither is it competent to demand his oath concerning the truth of the facts with which he is charged. But of all the methods of proof, that which requires the attendance of witnesses, more especially when they must be conveyed from distant parts of a country, is necessarily the most expensive and burdensome. In the view of public utility, it is likewise expedient, that every criminal trial should be conducted, and that the punishment of the offender should be inflicted, as much as possible, in the neighbourhood of the place where the crime has<282> been committed. The chief object in the punishment of crimes is to preserve the peace and good order of society, by deterring others from following the example of the criminal; and this is most effectually obtained, when the same persons who have beheld the violation of the law, are also spectators of the terror, mortification, and misery, with which that violation is attended.
From these considerations, when the king’s bench came to have its usual residence at Westminster, the sovereign was induced to grant special commissions, for trying particular crimes, in such parts of the country as were found most convenient; and this practice was gradually modelled into a regular appointment of certain commissioners, empowered, at stated seasons, to perform circuits over the kingdom, and to hold courts in particular towns, for the trial of all sorts of crimes. These judges of the circuit, however, never obtained an ordinary jurisdiction; but continued, on every occasion, to derive their authority from two special commissions; that of oyer and terminer,5 by which they were appointed to hear and determine all treasons, felonies, and misdemea-<283>nors, within certain districts; and that of gaol delivery, by which they were directed to try every prisoner confined in the gaols of the several towns falling under their inspection. Thus, by the addition of an ambulatory court, in supplement of another which has a fixed residence, precautions are taken to prevent the various and opposite inconveniencies incident to the distribution of criminal justice; and, as far as human institutions are capable of attaining perfection, the most complete establishment seems to be made for the trial and punishment of crimes.
The appointment of the circuit judges, in order to facilitate criminal trials, naturally suggested the idea, that the same commissioners might assist the courts at Westminster in another department, and be made subservient to the more expeditious decision of civil causes. With this view the commission of assise, and that of nisi prius6 was granted to these judges. By the former they were impowered to take the verdict of a jury in the trial of landed disputes. The latter was intended to shorten the procedure in ordinary civil actions, by directing the judges in the circuits to investigate<284> all such matters of fact, as were then under dispute before any court of Westminster-hall.*
What is commonly an article of the greatest magnitude, even in a civil process, the proof of the different averments made by the parties, came thus to be discussed within the county, and frequently in the very neighbourhood of the place where the dispute had arisen; while the mere matter of law was left to the consideration of the great court at a distance; a court, from its permanent situation, as well as from its authority and dignity, the best qualified for deciding points of such difficulty and importance.
To these regulations, of such manifest utility, there was added a further provision, for maintaining the general tranquillity. When quarrels arose among individuals, when outrage and violence were committed, and these were likely to be followed by riots and insurrections, it was in vain to expect, that, by application to the ordinary courts of justice, a timely interposition could be procured for sup-<285>pressing such disorders. It was expedient, therefore, that men of rank and character, living in the different parts of the country, and who might, of consequence, be at hand upon any emergency, should be invested with sufficient authority to seize disorderly persons, to put them under confinement, and, in general, to prevent violations of the public peace.
We find accordingly, that, by the ancient law of England, conservators of the peace, with powers of that nature, were, in the different counties, elected by the freeholders; and the same powers were also annexed to many of the higher offices of government. It appears that those magistrates had originally no cognizance of crimes, but merely an authority to secure offenders, in order to their trial before the ordinary tribunals. We may easily conceive, however, that such an employment would lead to a species of jurisdiction. When a person has been guilty of a breach of the peace, his conduct, although deserving animadversion, may often be unworthy of the trouble and expence which would attend a trial before the ordinary courts; and if, in such a case, the<286> magistrate, who has taken the offender into custody, and who must, in some measure, have already examined the case, should proceed of himself to inflict a moderate punishment, the expediency of such a measure would afford its justification, or at least would induce the public to connive at so small an extension of authority.
In the reign of Edward the third, the appointment of those magistrates, as might be expected from the rising state of the prerogative, was transferred to the crown; at the same time that they were invested with a power of trying all offences excepting those which inferred a capital punishment.* From this period they acquired the appellation of justices of the peace. By subsequent regulations they came to be entrusted with various branches of civil jurisdiction; by which they were enabled, in many questions of importance, to supersede the interposition of the superior tribunals.
Although, in Scotland, the principal courts of law were established in the capital, upon<287> the same plan as in England, the inhabitants were not subjected to the same inconvenience by their distance from the place where justice was administered. To say nothing of the narrowness of the country, compared with England, the Scottish nobles maintained their authority much longer than the English; and the courts of the baron, and of the sheriff, were therefore enabled to preserve a great part of their original jurisdiction. As these tribunals had the power of determining both civil and criminal actions, in their several districts, there was no necessity for bringing such matters, in the first instance, before the superior courts in the capital; and upon this account, although the judges of the court of justiciary were empowered to make circuits over the country, as in England, there was no occasion for bestowing upon them any civil jurisdiction, corresponding to what arises from the English commission of nisi prius.
The appointment of justices of the peace, to supply what is defective in the jurisdiction of the ordinary courts for suppressing riot and disorder, was introduced into Scotland at a later period, but in a similar manner, and upon the same footing, as in England.<288>
Of the Petty Jury—and the Grand Jury.
From the progressive alterations, which have been mentioned, in the English courts of justice, it is natural to conclude, that the judges were continually advancing in experience and knowledge, and that the forms of judicial procedure were daily attaining higher degrees of perfection. Of all the institutions relative to the management of judicial business, which may be considered as the effect of that improvement, those of the petty jury, and the grand jury, are most deservedly the boast of English jurisprudence; and as, in the period which we are now examining, both of them appear to have arrived at their complete establishment, a review of the circumstances from which they proceeded, and of the steps by which they were introduced, may not be improper.
1. I had formerly occasion to observe, that, under the government of the Anglo-Saxon princes, the chief magistrates of the several<289> counties and hundreds, found it unnecessary, in the determination of law-suits, to call a full meeting of the courts over which they presided; and, for the greater dispatch of the business, as well as for the ease and convenience of the people, were accustomed to select a certain number of the freemen, or allodial proprietors, in each particular cause, to assist in giving a decision. Hence the first idea of the petty jury was probably suggested.
In a subsequent period, a similar practice was adopted in the courts of a barony. When the vassals of a superior had acquired hereditary fiefs, they were no longer under the necessity of submitting to his arbitrary will; and in regulating their conduct, as well as in distributing justice among them, he found it expedient to act with their advice and concurrence. To have assembled the whole of his vassals, for the determination of every law-suit, would have been too great a hardship upon them; but a moderate number were convened, in order to satisfy the parties, and to give weight and authority to the sentence.
The calling, occasionally, a number of the vassals, in each case, to assist the superior, was<290> a more natural expedient, than the appointment of certain permanent assessors. It was attended with no trouble or expence; for every vassal was bound not only to fight for the superior, but also to perform such other services as might be requisite, in order to support his authority and dignity. According to the simple notions of that age, these persons were sufficiently qualified to determine the points referred to their decision; more especially as they might receive advice and direction from the magistrate. In some respects they were held even preferable to every other sort of judges; being men of the same rank and condition with the parties; and, from their situation, having frequently access to know the state of the controversy, as well as the circumstances of the facts in question.
The introduction of juries in the courts of a barony, arose from the establishment of hereditary fiefs; for, so long as vassals held their land precariously, or even were not secure of transmitting it to their posterity, they had too much dependence upon their superior, to dispute his authority, either in settling their differences or punishing their offences. We may<291> easily suppose, therefore, that, under the Anglo-Saxon government, this mode of procedure was not very common; because the custom of securing landed estates to the heirs of a vassal was then far from being general. It is from the reign of William the Conqueror, that we may date the remarkable extension of jury-trials; proceeding partly from the imitation of Norman or French customs; but still more from the completion of the feudal system, and the consequent multiplication of hereditary fiefs.
It merits attention, that this institution had been hitherto limited to the hundred and county courts, and to those of a feudal barony, but never had taken place in the judiciary proceedings of the national council. The causes which came under the cognizance of the Wittenagemote were not so numerous, as to create much trouble to its members, or to suggest the measure of devolving that branch of business upon any sort of committee, or partial meeting, in place of the full assembly.
Upon the establishment of the Anglo-Norman parliament, its ordinary judicial business<292> was, in a short time, committed to the aula regis; a court which at first consisted of several members, but was afterwards held by a single magistrate, the deputy judge of the sovereign. This tribunal was properly the ordinary baron-court of the king; and, being in the same circumstances with the baron-courts of the nobility, it was under the same necessity of trying causes by the intervention of a jury. As the vassals of the crown were usually more independent of the king, than the rear-vassals were of their immediate superior; it is not likely, that, while justice was administered by the pares curiae to the latter, the former would submit to the decisions of a single magistrate, named at pleasure by the sovereign. We find, accordingly, that, by a general law in the reign of Henry the second, either party in a law-suit was allowed to decline the customary mode of trial by single combat, and to demand that his cause should be determined by an assize or jury of twelve persons. From this time forward, there can be no doubt that jury-trials were admitted in all the courts of ordinary jurisdiction. They are expressly re-<293>cognised and established by the great charters of king John, and of Henry the third.*
When the office of the grand justiciary was abolished, in the reign of Edward the first, and when the powers of the aula regis were distributed to the king’s bench, the common pleas, and the exchequer, it was natural for these courts to follow the same forms of procedure which had been observed by that high tribunal to which they were substituted. The former practice of determining law-suits by a jury, was doubtless viewed, at the same time, in the light of a privilege, which the nation would not have been willing to resign. The number of judges, in each of the courts of Westminster-hall, was much inferior to that of the ordinary assize; and, as they were not men of the same rank with the parties, it was not likely that the same degree of confidence would be reposed in them. To have transferred the powers of an institution so popular as that of juries, to a set of courts constituted in this manner, would, notwithstanding the late advances of prerogative, have been a<294> dangerous measure. What is called the petty jury was therefore introduced into these tribunals, as well as into their auxiliary courts employed to distribute justice in the circuits; and was thus rendered essentially necessary in determining causes of every sort, whether civil, criminal, or fiscal.
In the high court of parliament, however, this method of trial was never admitted: being neither found requisite for the convenience of the members, nor conducive to the interest of parties. It was not requisite for the convenience of the members; because the trials which came before parliament were few, and speedily brought to an issue. It was not conducive to the interest of parties; because they were better secured from partiality and oppression, by a judgment of the whole house, consisting of all the crown vassals, than they could expect to be from a decision given by a limited number of those vassals, arbitrarily appointed by the president.
It has been questioned, whether an institution, similar to that of the petty jury in England, had place in any of the nations of antiquity. Among the Greeks and Romans, as<295> far back as we can trace the history of their judicial establishments, it does not appear that the inhabitants of certain districts were ever invested with jurisdiction, or that a part of their number were in each trial selected by the ordinary magistrate to assist him in giving a decision. The ordinary courts of Greece and Rome were composed of a chief magistrate, and of certain assessors; but these last were permanent officers, appointed, as it should seem, from year to year, or for the same period with the magistrate himself.
The Roman judex pedaneŭs,7 indeed, was nominated for each trial; but he was originally no more than a commissioner for taking a proof of the facts in question; and, although he was afterwards empowered, in many cases, to determine the law, as well as the fact, the intention of his appointment was not to give weight and authority to the decision, but merely to relieve the magistrate and his assessors from a part of their labour.
Among the Gothic nations of modern Europe, the custom of deciding law-suits by a jury seems to have prevailed universally; first in the allodial courts of the county, or of the<296> hundred, and afterwards in the baron-courts of every feudal superior. The same custom, however, does not appear, in any European kingdom except England, to have been extended to those great courts, which, upon the advancement of civilized manners, arose out of the national council, and were invested with the principal branches of ordinary jurisdiction.
The cour de roy, in France, was not, like the court of the grand justiciary in England, reduced under the direction of a single magistrate; but consisted of an indefinite number of the same persons who sat in the national assembly. The parliament of Paris, formed out of the cour de roy, was likewise composed of as many of the nobles as chose to attend; with the addition of a body of lawyers, who, it was understood, were to direct the forms of procedure, and to take upon them the drudgery of the business.* The parliament<297> of Toulouse, which was authorised at the same time, and the other parliaments which were afterwards formed in particular districts, conducted themselves upon the same principles with the parliament of Paris; and, as all of them were composed of a numerous council of judges, the intervention of a jury, to prevent erroneous judgments, or even to secure the parties from oppression, was the less necessary.
This observation is applicable to the principal courts of the German empire. The aulic council was composed of an indefinite number of the same persons who had a right to sit in the diet. The imperial chamber was a numerous council of judges. In both of these tribunals, therefore, the assistance of a jury was probably thought unnecessary.
In Scotland, the court of the grand justiciary came to be established upon the same plan as in England; and admitted, in like manner, the form of jury-trials. But upon the division of the powers of that court into different branches, the civil tribunal, then introduced, was a committee of parliament; that is, a committee of those crown-vassals of<298> whom juries had been composed. By one or two variations of that model, was formed the present court of session, which was made to consist of fifteen ordinary judges, the usual number of jurymen in Scotland; with a view, it should seem, to supersede the use of jury-trials: and as this mode of judicial procedure was laid aside in the principal civil tribunal, the example appears to have been quickly followed in the inferior civil courts of the kingdom. In the court of justiciary, however, which consisted of a smaller number of judges, and consequently in the inferior criminal courts, the ancient practice of jury-trials was continued.
Beside the circumstance now mentioned, relating to the constitution of the principal courts of justice in several European kingdoms, the influence of the ancient Roman law, as delivered in the compilations of the emperor Justinian, was another more general cause, which contributed to the disuse of juries through the greater part of Europe. Upon the revival of letters in Europe, that improved system of jurisprudence was recommended and propagated by the clergy; was taught,<299> under their direction, in almost all the universities; and its decisions and forms of procedure were considered by the civil magistrate as models for imitation. The Gothic institution of juries, which had been unknown to the Romans, was therefore brought more and more into discredit; and, that the whole cognizance of a law-suit should be committed to judges, who, by being set apart for that purpose, and by devoting themselves to this employment, might become peculiarly qualified for the exercise of it, was regarded as an improvement in the state of judicial policy.
In England, where, from circumstances that will be mentioned hereafter, the Roman system was less incorporated with the common law than in other countries, the custom of jury-trials has, accordingly, been most religiously maintained. But even in England, this custom has been totally excluded from ecclesiastical tribunals, from those of the two universities, and from all other courts in which, from particular causes, the maxims and principles of the civil law have been adopted.
Scotland was, in some degree, under the influence of opposite systems; and seems, upon<300> that account, to have held a middle course. Like the nations upon the continent, she was led into a close imitation of the Roman decisions and forms of procedure; while, by her vicinity to England, she was induced to borrow many regulations and customs from that more cultivated and powerful country. Thus the Scottish tribunals imitated the English, by retaining a jury-trial in criminal prosecutions; but followed the practice of the Romans, by neglecting that institution in the greater part of civil actions. In the former, it was natural to entertain a greater suspicion of the court than in the latter; because in a criminal trial, the king, who nominates the judges, and to whom they must look for preferment, is always a party; whereas in a civil action, or controversy between private individuals, the crown has no interest; and there is commonly no circumstance to influence the magistrate upon either side, or lay him under a temptation to gross partiality.
It is not likely that the institution of juries would, in any country, be very acceptable to the sovereign; since it limited the power of those judges whom he appointed, and of whom<301> he had, in some measure, the direction. We may easily imagine, therefore, that, according as, among any people, the prerogative was exalted or depressed, its influence would be exerted, more or less effectually, in discouraging this mode of trial; and hence we may discover an additional reason for the continuance of juries in England. As the English were successful in reducing the power of the monarch within moderate bounds, and acquired proportionably higher notions of liberty; they became, of course, the more attached to that method of distributing justice, by which the disposal of their lives and fortunes was committed to their fellow citizens, rather than to officers in the nomination of the crown. They became not only the more passionately fond of this privilege, which had been handed down to them from their ancestors, but at the same time the more capable of maintaining it. There is no reason, indeed, to believe that this circumstance alone would have been sufficient to retain, in England, the practice of jury-trials; for other European states have had also the good fortune to restrain the prerogative, and to establish a popular government.<302> But this circumstance undoubtedly co-operated, with the other causes formerly mentioned, in rendering the people of England more tenacious of that ancient appendage of the feudal policy, and more jealous of every attempt, from whatever pretences, either to limit the power of juries, or to exclude them from the decision of particular causes.
2. In order to secure the regular distribution of justice, it is not enough that courts are properly constituted, and that judges are attentive to the determination of law-suits. The magistrate must also be informed of those cases which require his interposition; and measures must be taken for bringing them under his examination. A distinction, however, in this respect, may be observed between that branch of judicial business which relates to civil, and that which relates to criminal causes. In a controversy between private individuals, each party is likely to prove sufficiently attentive to his own interest; and may therefore be left to vindicate his own rights as he shall think fit. But when a crime is committed, which requires a punishment for the sake of a public example, there is danger that<303> the interest of the community will be neglected; that no information of the fact will be given to the judge; and that no person will take upon him the trouble, the odium, and the expence, of bringing an accusation. It is here that some regulation is necessary, to prevent the disorders that might be apprehended, from permitting criminals to pass with impunity.
Among the Romans, not only the person injured, but any one of the people, was allowed to prosecute a public offence. As the crime was understood to affect the whole community, any one of its members, being in some degree a sufferer, was entitled, upon that account, to come forward and claim redress.
It requires but little sagacity to discover, that this mode of prosecution was liable to great abuses. It was likely, on the one hand, to produce negligence in prosecuting crimes; and, on the other, to encourage unjust and groundless prosecutions. Few people were found so public-spirited, as to undertake the disagreeable task of convicting criminals, from the view of promoting the interest of society, while many were tempted to become public accusers, from secret motives of resentment<304> or malice, or even for the purpose of obtaining a pecuniary composition from the person whom they had found an opportunity to prosecute. To prevent this latter enormity, severe penalties were inflicted upon such as brought an unjust accusation of a public offence. In particular, it was enacted, that he who failed in proving his accusation, should suffer the same punishment to which, if he had been successful, the defendant would have been subjected: a regulation which, if strictly enforced, must have put an end to every capital prosecution: for who is there that will hazard his own life, upon the uncertainty of prevailing in any criminal trial?
In the modern feudal nations, the judge himself was originally the public prosecutor. Every feudal lord, whether a sovereign prince or a subject, was excited to punish offences within his demesne; not only from the desire of repressing disorders, but also from that of procuring fines and amerciaments. As representing the community, of which he was the leader and executive officer, he first brought an accusation against those whom he suspected of crimes: as the chief magistrate, he after-<305>wards examined the proof, and gave judgment in the cause.
The mischief attending this practice must have soon become notorious. It can hardly be supposed that the same person would acquit himself with propriety in the twofold character of an accuser and a judge. Even in the course of a speculative debate, men usually acquire a prejudice in favour of those tenets which they are endeavouring to support; and find it extremely difficult to preserve a degree of candour in judging of such as are advanced upon the opposite side. What shall we say then of a person who is engaged in preparing a public accusation; who sets out with a strong suspicion, that the defendant is guilty; who converses with informers, likely to employ every artifice to strengthen that opinion; and who, to pass over his pecuniary interest, involved in the issue of the cause, has exerted himself in collecting and arranging all the facts and arguments in confirmation of his hypothesis? How is it possible to avoid that blind zeal and prepossession, that eagerness to convict the defendant, acquired in the capacity of a prosecutor; and to behave with that impartiality, coolness, and<306> moderation, which are essentially requisite in the distribution of justice?
To prevent this dreadful enormity, and at the same time to secure a proper attention to the public interest, the prosecution of crimes was, in all the feudal countries, reduced into a separate employment by the appointment of a procurator or factor to act in the name of the sovereign. Hence the attorney-general in England, and the king’s advocate in Scotland, were appointed to manage the judicial business of the crown, before the principal tribunals; and a similar institution, from the same views of expediency, was even extended to inferior courts.
But, previous to the prosecution of offences, there must be information of their existence; and frequently, too, the immediate interposition of the magistrate is necessary, to apprehend and imprison the offender. In a rude nation, however, especially if it is of considerable extent, many crimes are likely to be hid from the public eye, and to escape the examination of any court. It appears, accordingly, that, in modern Europe, this branch of police had early become an object of general attention.<307> To make inquiry concerning the commission of public offences, and to transmit an account of them to the criminal court, was one great purpose of the appointment of coroners;8 a set of officers who had place not only in England and Scotland, but in the greater part, if not in all, of the feudal kingdoms upon the continent.
The office of the coroners, in England, is of so great antiquity, that the commencement of it is entirely lost in obscurity. It seems to have been an immemorial custom of the Anglo-Saxons, that several persons of distinction should be named by the freeholders in each county, with power to secure and imprison criminals of all sorts, to the end that they might be brought to a trial. From this employment, these officers, as in after times the justices of the peace, found the means of assuming a criminal jurisdiction, which, from small beginnings, became gradually more and more extensive. Another branch of business, devolved upon the coroner, and which may be regarded as an appendage or consequence of the former, was that of ascertaining and determining the value of the fines, amerciaments,<308> and forfeitures, or of any other emoluments, which accrued to the sovereign, either from the condemnation of public offenders, or from the right of the crown to all the goods, of which no other proprietor could be found.
When the coroner had occasion to inquire into the truth of any fact, either with a view to determine those matters which fell under his own jurisdiction, or in order to transmit an account of it to some other criminal court, he proceeded, in the same manner that was customary in the courts of the hundred, and of the county, by the assistance of an inquest or jury; and the number of jurymen, who, in those cases, were called from the neighbouring townships, was not less than was employed in other judicial investigations.
After the Norman conquest, when the aula regis drew to itself the cognizance of the greater part of crimes, it became the duty of the coroner to certify to that court his inquisition concerning those offences which fell under its jurisdiction; and upon this information, the most authentic that could well be procured, a trial before the grand justiciary was commenced.<309> Upon the establishment of the king’s bench, and of the commissions of oyer and terminer and gaol delivery, the like certification, and for the same purpose, was made by the coroner to those tribunals.
But in proportion to the advancement of the prerogative, the authority of the coroner, an officer elected by the county, was diminished; his jurisdiction was daily subjected to greater limitations; and his reports became gradually more narrow and defective: whether it be that, by having a fellow-feeling with the inhabitants, he endeavoured to screen them from justice, or that, from the rust and relaxation to which every old institution is liable, his operations became tardy and inaccurate; certain it is, that he came to overlook the greater part of the offences which require the interposition of the magistrate, and his inquisition was at length confined to a few of those enormous crimes, which excite universal indignation and resentment.
To supply the deficiency of the coroner’s inquest, the sheriff, who had come, in a great measure, under the appointment of the crown, was directed, upon the meeting of judges in<310> the circuits, or of the other criminal courts, to call a jury, in order to procure information concerning the crimes committed in particular districts. Hence the origin of what is called the grand jury, by whose inquisition the judges were authorised to proceed in the trial of public offenders.
It is probable, that when the grand jury were first called, they made an inquiry at large concerning every fact which ought to become the subject of a criminal trial, and of their own proper motion delated the persons whom they found to deserve an accusation; but, by degrees, when the agent for the crown had been led to suspect any particular person, he was accustomed to lay before them the immediate question, how far that suspicion was well founded? Hence the two methods of finding the fact; by presentment, and by indictment.9
It seems evident, from what has been observed, that the original purpose of the inquisition by the coroner, and of a presentment by the grand jury, was to prevent offenders from being overlooked, and from escaping a trial. When the custom of preferring indictments to the grand jury was introduced, the intention<311> of that measure was, probably, to avoid the trouble and expence of a fruitless prosecution. But whatever was originally intended by this practice, the necessity of procuring the previous approbation of a jury, by one or other of the forms above mentioned, was productive of the highest advantage to the people, that of securing them from groundless or frivolous accusations. If a person is known to have committed a crime, or lies under a strong suspicion of guilt, the voice of the whole neighbourhood will probably call aloud for justice, and demand an immediate trial of the offender. But if, on the contrary, an innocent man is attacked, if he is threatened with a prosecution, from apparently malicious motives, or for the purpose of serving a political job, it is most likely that his fellow citizens will view this proceeding with indignation; that they will consider his misfortune as, in some measure, their own; and that, from a principle of humanity and justice, as well as from a regard to their own interest, they will be excited to stand forth as the protectors of innocence.
This is a new instance, perhaps more conspicuous than any that we have had occasion<312> to observe in the history of the English government, of a regulation whose consequences were not foreseen at the time when it was introduced. The great benefit arising to society from the interposition of the grand jury is not only totally different, but even diametrically opposite to that which was originally intended by it. The original purpose of that institution was to assist the crown in the discovery of crimes, and by that means to encrease the number of prosecutions. But when an accurate police had been established in the country, there was little danger that any crime of importance would be concealed from the public; and it became the chief end of the grand jury to guard against the abuses of the discretionary power with which the officers of the crown are invested, that of prosecuting public offences.
The employment of the coroner in Scotland was the same as in England; and he appears to have used the same forms in the exercise of his jurisdiction. With the assistance of a jury, he inquired into the commission of crimes, and either punished them by his own authority, or transmitted information concerning them<313> to the competent court. The negligence of this officer seems, in that country, to have likewise produced the interposition of the sheriff, or chief magistrate of particular districts, by calling a jury for the same purpose. By a statute in the reign of Alexander the second,10 it is enacted, that no prosecution, at the instance of the crown, shall proceed against any person, unless by an accusation, upon the inquisition of a jury, consisting of the chief magistrate of the place, and three respectable persons in the neighbourhood. This rule continued till near the end of the sixteenth century; when, in consequence of the establishment of the court of session, and from other causes, the investigation of judicial matters, by a jury, came to be much more limited than it had formerly been. By an act of the Scottish parliament, in 1587, certain commissioners, instead of the inquest formerly called, were appointed in the several counties, for inquiring into public offences; and indictments, framed upon the report of these commissioners, were put into a list, which got the name of the porteous roll.* <314>
The same statute empowered the king’s advocate to prosecute crimes of his own proper motion;† and, as he was the person employed to raise indictments, upon the information transmitted by the commissioners, he naturally assumed the privilege of determining whether the facts laid before him ought to be the ground of a prosecution or not. Thus in Scotland the ancient grand jury was abolished; and criminal actions, at the instance of the public, came, in all cases, to be directed at the discretion of a crown officer.
The attorney-general, in England, and the master of the crown-office, have acquired, in like manner, a power of prosecuting by information, without any previous authority of a grand jury; but this mode of prosecution is confined to misdemeanours tending to disturb the government, or the peace and good order of society, and is never extended to crimes of a capital nature.
How far the nations upon the continent were possessed of a similar provision, to secure the people from unjust and groundless prosecutions, it is not easy to determine. That in<315> the greater part of them the coroner’s inquest was employed for bringing to light those disorders which required the interposition of a criminal court, there is no room to doubt. But when, from the circumstances which have already been pointed out, the method of trial by the petty jury had fallen into disuse, it is not likely that a previous inquest would still be employed to judge of the necessity or expediency of commencing a criminal accusation. From the rapid advancement of the prerogative in these nations, the sovereign was freed from any restraint in this branch of administration, and an unbounded liberty of trying public offences was committed to the officers of the crown. To whatever causes it may be ascribed, the English grand jury is now the only institution of the kind that remains in Europe; and perhaps, as it is modelled at present, there cannot be found, in the annals of the world, a regulation so well calculated for preventing abuses in that part of the executive power which relates to the prosecution of crimes.<316>
Circumstances which prevented the Civil Law from being so much incorporated in the System of English Jurisprudence, as in that of other European Countries.
To those who survey the common law of England, in its progress towards maturity, there is one peculiarity which must appear extremely remarkable; the little assistance it has borrowed from the ancient Roman jurisprudence; that system of equity, which has been so highly esteemed, and which, in the other countries of Europe, has excited such universal imitation. Why the English have deviated, in this particular, from the practice of all the neighbouring nations, and have disdained to draw supplies from those plentiful sources of legal knowledge, by which many systems of modern law have been so amply enriched, it seems a matter of curiosity to inquire: at the same time that, by examining the causes of a proceeding so singular, and apparently so unreasonable, we shall, perhaps, be enabled to<317> discover the advantages or disadvantages which have resulted from it; and likewise to form an opinion, how far expediency may, in the present state of things, recommend the same, or a different line of conduct.
The Gothic nations who subdued the provinces of the Roman empire, and settled in the countries which they had over-run, were by degrees incorporated with the ancient inhabitants; and from the communication and mixture of these two races of men, there was formed a composition of laws, manners, and customs, as well as of language; in which, upon different occasions, and from a variety of circumstances, the proportions contributed by the one people, or by the other, were accidentally more prevalent. Although the ancient inhabitants were, every where, the vanquished party, they possessed that superiority which knowledge and civilization have usually bestowed over ignorance and barbarism; and hence we find a multitude of Roman institutions inserted in the codes of law, which, at an early period, were published by many kings or leaders of those barbarous nations.
Soon after the settlement of those barbarians,<318> or rather before it was completed, they embraced Christianity, and fell under the direction of the Christian clergy; who, having been firmly established in the Roman empire, were enabled to preserve their footing in those new states that were formed. These ecclesiastics were attached to the Roman law, in opposition to the barbarous customs of the new settlers; both as it was the system with which they were acquainted, and as it was calculated to maintain that peace and tranquillity, which their profession and manner of life disposed them to promote.
The doctrines of Christianity, unlike the fables which constituted the mythology of the Greeks and Romans, contained philosophical truths, which the teachers of that religion were under the necessity of knowing, and by the knowledge and propagation of which they supported their credit among the people. Those teachers, therefore, became conversant in several branches of literature; and, as their theological system afforded them great scope for speculation and reasoning, and consequently for difference of opinion, they soon arranged themselves in different sects; disputed eagerly<319> with one another; and, in proportion to their zeal in making proselytes, acquired a degree of acuteness and skill in defending their several tenets.
The learning and abilities which came, in this manner, to be possessed by the clergy, together with the general ignorance and superstition of the people, bestowed upon the former an influence and authority over the latter, and produced, as I formerly took notice, an extensive jurisdiction both in ecclesiastical and secular matters. It is sufficient here to observe, that in the exercise of this jurisdiction, ecclesiastical judges were guided, as far as the difference of circumstances would permit, by the rules and principles of the Roman jurisprudence; which had been transmitted from the ancient inhabitants of the provinces, and were delivered in the collections made by different Roman emperors, by Theodosius the younger,11 by Justinian, and by many of his successors. The Roman system became, in a great measure, the law of the church; and was therefore propagated by her, with the same zeal, and from the same views and motives, by which she was actuated in supporting and extending her influence and authority. The disorders which, for some cen-<320>turies, were continued, by the successive invasions of new barbarous tribes, retarded, no doubt, the progress of every regular establishment. But when Europe began to recover from these convulsions, and when the restoration of public tranquillity was followed, as there was reason to expect, by the revival of letters, the efforts of the clergy, to extend the credit and authority of the Roman law, became highly conspicuous and successful. Innumerable schools were founded in cathedrals and monasteries, many of which, under the patronage of the church, obtaining large endowments, and being invested with jurisdiction and various privileges, became what are now called universities. Both the canon law, which was the rule of decision in ecclesiastical courts, and the civil law, properly so called, the original fund from which a great part of the former had been gathered, were taught in these different seminaries, and thus rendered familiar, not only to those who had views of entering into holy orders, but to all who received the benefit of a liberal education.
About the end of the eleventh century, Ivo de Chartres12 published a collection of canon-<321>law, much more complete than any that had been formerly made; though it was much inferior to the subsequent compilation of Gratian, a Benedictine monk, known by the title of the Decretum.
In the year 1137, the Pisans, at the taking of the town of Amalphi, found a copy of Justinian’s Pandects; and to this accident, the rapid cultivation of the civil law, from that period, has been commonly ascribed. But we may be allowed to entertain some doubt, whether an event of that magnitude could have proceeded from a circumstance apparently so frivolous.
There is no reason to believe that this book had been entirely lost in the western part of Europe, although, for a long time, it had been less in request than other compilations upon the same subject. Ivo de Chartres, in the preceding century, quotes the laws of the Pandects; and Irnerius,13 professor of law at Bologna, as early as the year 1128, prelected upon some part at least of Justinian’s compositions.
Even supposing the Pandects to have been lost, there were many other writings upon the Roman law still remaining, from which the<322> knowledge of it might, in some degree, have been preserved; the Institutes, the Codex; and the Novellae of Justinian; the Theodosian Code; and the compilations, published after the time of Justinian, by different emperors of Constantinople.
Neither is it likely that, if men had possessed no previous disposition to that study, it would have been inspired by finding an old book upon the subject. Few people will be at the pains to peruse a long book, upon any abstract science, unless they already feel a strong inclination to acquire the knowledge contained in it. But, in the twelfth century, when, from different circumstances, a spirit of improvement began to diffuse itself in Italy and France, it is probable that men of learning were excited to the discovery of ancient books upon every subject; and, as the civil law became then a principal object of attention, the Pandects, containing the fullest collection of legal opinions and decisions, was considered as the most instructive work of the kind, and copies of it were greedily sought for. As Amalphi was, at this time, the chief trading state of Italy, an Amalphitan merchant, ob-<323>serving the demand for books of that nature, is said to have brought from Constantinople this copy of the Pandects, which was found by the Pisans. Some authors mention another copy of the same book, that had been discovered in the year 1128, at Ravenna.*
However this be, the Roman law was, upon the revival of letters in Europe, universally held up and admired as the great system, from an imitation of which the laws of each particular country might receive the highest improvement. This the modern lawyers were, by their education, accustomed to consider as the standard of reason and equity; and, wherever their own municipal customs were defective, they had recourse to it, in order to supply what was wanting, or to correct what was amiss. Even such of the modern writers as endeavoured to delineate the principles of natural justice,14 independent of all positive institutions, made use of the Roman system, almost exclusively of every other, in order to illustrate their doctrines.
Although the Roman law was, in this man-<324>ner, generally incorporated in that of the modern European nations, it acquired more authority in some of these nations than in others. The German emperors appear to have considered themselves as the successors to the Roman empire in the west, and their dominions as therefore subject to that system of law, by which the Romans were governed. Hence, in Germany, properly so called, in the Southern part of France, or what are called the Pays de droit ecrit, and in several parts of Italy, which, at the time when the German emperors enjoyed the highest prosperity, were included under their dominion, the Roman law is understood to be the common law of the country, to which the inhabitants, upon the failure of their own municipal customs and regulations, are bound to submit. In other European countries it is viewed in the light of a foreign system; which, however, from its intrinsic merit, is entitled to great attention and regard; and of which many particulars have been, in a manner, naturalized by long usage, or adopted by the positive will of the legislature. This is the case in Spain, in Portugal, in the northern parts, or what are called the<325> Pays de coutumes, in France, in Sweden, in Denmark, and in Scotland.*
Upon the revival of letters, the same regard to the Roman law was discovered in England as in the other countries of Europe. It was propagated with equal zeal by the clergy, and, in the twelfth century, became the subject of public lectures in both the universities. The decisions and principles delivered in the writings of Justinian, were borrowed, and even the expression was frequently copied, by Bracton, by the author of Fleta, and by other English lawyers of that period.15 The work attributed to Glanville, the grand justiciary of Henry the second, and a Scotch law book, known by the name of Regiam Magistatem,16 both set out with a passage which is almost literally the same; whence, as well as for other reasons, it is concluded, that the latter of these productions has been copied from the former. Upon examination, however, the passage in question is<326> found in the preface to the Institutes of Justinian.
Thesettlement of the chief courts of common law in the neighbourhood of the capital, which was begun in consequence of the great charter of king John, and completed in the reign of Edward the first, made it necessary that the lawyers, and other practitioners in those courts, should reside there also. Hence arose the inns of court, and of chancery,17 which were lodging-places in the neighbourhood of London, intended for the accommodation of the retainers about the courts of Westminster. Seminaries of common law were soon formed in those places of resort; and lectures upon that subject were given to the elder students, in the inns of court, and to the younger students, in the inns of chancery. The king gave encouragement to these institutions, by forming the members of each lodging-place into a sort of corporation, and by establishing a set of rules for their conduct. We find that Henry the third bestowed upon them an exclusive privilege, by prohibiting any other school for teaching law within the city of London.<327>
The universities of Oxford and of Cambridge were the only other institutions in the kingdom, in which law was taught with public encouragement. But in those learned societies, the only systems which had reputation, and which were thought worthy of public lectures, were those of the civil and the canon law. The municipal law, from its tendency, in many particulars, to encourage violence and disorder, from the barbarous jargon in which it was involved, and from the want of literature among its practitioners, was treated with contempt. These practitioners, we may easily imagine, were disposed to retaliate those unfavourable sentiments. Upon this account, and from the distance between the seats of instruction, in civil and municipal law, the former contributed no assistance to the latter. Those two branches of education were carried on apart, and became entirely distinct, and separate. The teachers of each, instead of co-operating in order to form a complete lawyer, were actuated by mutual jealousy and opposition; and the one science being treated as despicable in the universities, the other was probably represented as useless by the practitioners of the common law.<328>
For some time the civil law, under the patronage of the clergy, and of the universities, was in the highest esteem throughout the nation; and the study of the municipal law was confined to mere lawyers by profession; but at length, from the natural course of things, the comparative value of those two branches of science was of necessity altered. The latter, being that system by which the property and the conduct of individuals were chiefly regulated, could not fail to rise in consideration and importance; at the same time that, by the progress of judges in experience and refinement, its defects were gradually supplied; while the laws of Rome, which were unconnected with the ordinary courts of justice, and therefore of no practical utility, became an object of little attention.
We accordingly find, that, in the reign of Edward the fourth, and even before that time, the inns of court and chancery had become the fashionable places of education for men of rank and fortune, and were frequented by a great multitude of students. There were four inns of court, and no less than ten of chancery: in each of the former, the number of students<329> amounted to about two hundred, in each of the latter, to about an hundred. Neither was the system of education, in this great seminary, confined entirely to law: it comprehended all exercises, and every sort of accomplishment becoming a gentleman of the king’s court; such as dancing and music. Sir John Fortescue18 informs us, that it was likewise customary to study divinity on festival days; I suppose, by way of relaxation.*
Justice Shallow is introduced by Shakespear,19 boasting, that he had been a student of Clement’s Inn, and that he had often heard the chimes at midnight; as a proof that he was a young man of fashion and spirit.—In the same manner as he boasted of his acquaintance with John of Gaunt.
When those teachers of the common law had begun to feel their own consequence, they assumed the privilege of bestowing rank upon their students of a certain standing; and conferred the degrees of serjeant, and apprentice, corresponding to those of doctor and bachelour in the universities.<330>
As the separation of the civil and the municipal law produced an aversion to the former in the inns of court and chancery, we may easily conceive, that the same prejudice would be communicated to their numerous pupils, and thus become prevalent among the nobility and gentry of the kingdom. Hence the jealousy discovered, on several occasions, by the English parliament, lest, by the influence of the clergy, the laws of ancient Rome should be introduced into England; of which a remarkable instance is mentioned in the reign of Richard the second; when the nobility, in parliament, declare, “that the realm of England hath never been unto this hour, neither by the consent of our lord the king, and the lords of parliament, shall it ever be ruled or governed by the civil law.”† As the laws of ancient Rome had not been incorporated in the municipal system, they seem to have been viewed, by the partizans of the latter, in the same light with the doctrines of a rival sect, which has with difficulty been prevented from acquiring the superiority in the national establishment.<331>
It has been alleged by authors of note, that the opposition of the English nobility to the civil law, arose from its being the law of a despotic government, and therefore inconsistent with their notions of English liberty. But whoever has examined the compilations of Justinian with any attention, must be sensible that there is no foundation for this remark. Those collections relate almost entirely to the private, and touch very slightly upon the public law of the empire. But with respect to property, and the rights of private persons, the opinions and decisions of the Roman lawyers do not seem to have been at all perverted by the nature of their government. Perhaps it will be difficult to point out any modern system of law, in which the rules of justice among individuals appear to be so little warped by the interest of the crown, and in which the natural rights of mankind are investigated and enforced with greater impartiality. In one or two cases, you meet with an observation, “that the prince is above the laws.” These, however, are detached, and, as it were, insulated expressions, delivered in general terms, and without any visible effect upon the body<332> of the work; which relates, not to disputes between the emperor and his subjects, but to such as may arise among the people.
After the free government of Rome was overturned, the emperors found it expedient for a long time to conceal the extent of their usurpation, and to leave the ordinary judges, in a great measure, undisturbed in the exercise of that jurisdiction which had been founded in the more fortunate times of the republic. Augustus first set the example of this prudent dissimulation, which was copied by a great number of his successors. Beside the apprehension that the old republican spirit was not entirely extinguished, and the circumstance that the throne continued elective, the emperors were kept in awe by those powerful armies, under particular officers of distinction, which were maintained in the provinces. These were much superior to that praetorian guard, which, for the immediate support of the imperial dignity, was established in the neighbourhood of Rome. In this manner a sort of balance, however precarious, was for some time held, by the military forces dispersed over the empire, and by the jealousy between the emperor and the<333> leader of each considerable army; in consequence of which, the former was deterred from invading and destroying the internal structure of the constitution.
Some of the first emperors, indeed, were guilty of enormous crimes and disorders; but the effect of these appears to have been limited, in a great measure, to persons high in office, or in such rank or station as to be involved in the intrigues of the court. In the succeeding period the Romans were more fortunate, and the throne was filled by a series of princes who are an honour to human nature; Nerva, Trajan, Adrian, Antoninus Pius, and Marcus Aurelius.20 Under these emperors no interference of the crown prevented the equal distribution of justice; the experience of an empire, which included the whole civilized world, was accumulated in one mass; and the system of private law was thus brought to much greater perfection than it had attained in the preceding ages.
In the reign of Adrian was composed the perpetual edict,21 the first great compilation of the rules of decision; and this became the ground-work of most of the writings published<334> by succeeding lawyers. It was about this time that the law began to be regularly cultivated as a science; that it became the object of a lucrative profession; and that it was taught at Rome with public encouragement.*
Severus new modelled the praetorian guard, by appointing that it should consist of above fifty thousand men; about four times the ancient number; and that it should be recruited, not, as formerly, from the effeminate inhabitants of Italy, but from the hardy and well-disciplined legions upon the frontiers. With the command of this army the emperor possessed a force which nothing in the whole empire was able to oppose; and the government of course degenerated into an absolute military despotism. From this time, therefore, the law could not fail to decline. From the influence of long usage, however, it appears to have declined very slowly; and, notwithstanding the<335> ignorance and barbarism in which the people were sunk, together with the heavy yoke of tyranny to which they were subjected, the ancient system was treated with respect.
It merits attention, that the opinions and decisions contained in the Pandects of Justinian, were delivered by authors, who either lived entirely, or at least received their education, before this great revolution was introduced; and probably a considerable time before its effects, in subverting the private law of the country, had been very sensibly felt. Modestinus, the latest of those authors, wrote in the reign, I think, of the younger Gordian, and only about thirty years below that of Severus.22
The Institutes, an elementary book upon the science of law, intended as an introduction to the perusal of the Pandects, was likewise composed, with a very few additions of Justinian, by an old lawyer, who lived within the period above mentioned.
As the proscription of civil law from the courts of Westminster-hall proceeded entirely from the animosity and opposition between the universities and the inns of court and chancery; it may be supposed that this would con-<336>tinue no longer than while the latter preserved their consideration and popularity. For a long time, however, these institutions have not only ceased to be the great seminaries for educating the nobility and gentry; but have become of little use for conveying instruction to practical lawyers. No lectures are now given in the inns of court or chancery; no exercises are performed; no measures are taken for directing the application of those who, of their own accord, may be disposed to study. The whole care of education seems to be devolved upon the cook; and the only remaining part of the ancient regulations is, that the student shall eat his commons for a certain number of terms.
The causes of this alteration it is not difficult to discover. Beside the luxury of a great metropolis, which is calculated to produce idleness and dissipation both in teachers and scholars, the profits arising from the practice of the law, together with the prospect of preferment in the state, have allured men of spirit and abilities to desert the more speculative and less distinguished employment of communicating the principles of the science to a set of pupils.<337> To counteract this natural tendency, and to maintain the vigour of teaching law, notwithstanding the superior advantages derived from the practical profession of a lawyer, public encouragement, as well as the strictest regulation, would have been requisite; but this object appears to have been overlooked by government; and, upon the advancement of national wealth and prosperity, the old institutions were left to their natural course.
But the decay of the inns of court and chancery did not immediately change the ideas which, in their more flourishing condition, they had impressed upon the nation. The movement continued, and its direction was little varied, for a long time after the hand that gave it was withdrawn. It is but of late years that the prejudices, which had so long prevailed, have begun to disappear, and that the same liberal spirit with which the nation is animated in the prosecution of other sciences, has been extended to the interpretation of the rules of justice. In ecclesiastical courts, indeed, and in those of the universities, the civil law has been long followed; but this proceeded in some measure from prepossession;<338> as the rejection of that system, in the courts of Westminster-hall, was the effect of prejudice. Upon the rise of the court of chancery, its decisions were commonly directed by a clergyman; who naturally possessed an attachment to that system of equity, the propagation of which was the great aim of the whole ecclesiastical order. In the court of the admiral, which acquired a jurisdiction in maritime causes, the principles adopted were such as had been suggested, not by the peculiar customs of England, but by the common intercourse of commercial nations, and in which a great proportion of the civil law was introduced. A similar system was embraced in the courts of the constable and marshal; who, from having the command of armies, more especially when engaged in foreign expeditions, were permitted to assume a military jurisdiction. These officers, as might be expected, were led to imitate the general practice of Europe, or what may be called the law of nations.
It was reserved for the enlightened judges of the present age to estimate the system of Roman jurisprudence, according to its intrinsic merit; and without being influenced by ad-<339>ventitious circumstances, to derive from it, in the courts of common law, such assistance as it was capable of bestowing. Of all the sciences, law seems to be that which depends the most upon experience, and in which mere speculative reasoning is of the least consequence. As the Roman system contains the accumulated experience and observation of ages, and of the most extensive empire that ever existed in a civilized form; the advantages resulting from it, as an example to the lawyers and judges of any modern country, must be proportionably great. It presents the largest collection of equitable decisions, and rules, that is any where to be found. These are calculated to enlarge the compass of legal knowledge, without having the influence to mislead; they have all the benefit of precedents, without any authority to impose; and, therefore, may render the system of English law more full and comprehensive, without any danger of corrupting it.<340>
The Rise of the Court of Chancery.
In attempting a general outline of the principal English courts, the judicial authority of the chancellor now remains to be considered. The jurisdiction of this officer was plainly derived from the nature of his employment in the king’s household, and from the ministerial powers over the kingdom, with which he thence came to be invested. By being the king’s secretary and chaplain, he enjoyed the peculiar confidence of his master; and had the sole charge of writing his letters; and afterwards of issuing writs in the name of the crown. As it became customary that every vassal should hold his fief by a charter from the superior, the power of granting those deeds, throughout the royal demesne, became the source of great influence, and, after the Norman conquest, when the nobility were all reduced into the state of crown-vassals, raised the chancellor to be a principal officer of state.<341>
When the deeds issuing from the crown became numerous, the care of expediting many of them was devolved upon inferior persons; and, to ascertain their authenticity, the subscription of the chancellor, and afterwards a public seal, of which he obtained the custody, was adhibited.*
At what time signatures became customary, in England, to deeds proceeding from the crown, appears uncertain. It is probable that they were known to the Anglo-Saxons; but that they did not become frequent until the settlement of the Norman princes. From this period the chancellor was considered as having a title to the keeping of the great seal; but as, from the caprice of the monarch, there occurred some instances in which it was en-<342>trusted to a different person, a statute was made in the reign of Henry the third, requiring that the employments of lord-keeper and chancellor should always be conjoined; a regulation which, having sometimes been overlooked, was afterwards renewed in the reign of Elizabeth.*
In this manner all important writings, issued by the king, either came through the medium of the chancellor, or were subjected to his inspection. Before he affixed the great seal to any deed, he was bound to examine its nature, and, if it proceeded upon a false representation, or contained any thing erroneous or illegal, to repeal and cancel it. So early were laid the foundations of a maxim, which in after days has been gradually extended; that the servants of the crown are justly responsible for measures which cannot be executed without their concurrence. As the exercise of these powers required a previous examination and cognizance, it gave rise to an ordinary jurisdiction, which, although of great importance, has occasioned no controversy, and appears to have excited little attention.<343>
The extraordinary jurisdiction of the chancellor arose more indirectly, from his character and situation. The origin of his interposition, to correct the decisions of the ordinary tribunals, was formerly suggested. When the king’s baron-court, confining itself within the rules of common law, had been laid under the necessity of giving a decision, which, in its application to particular cases, was found hard and oppressive, the party aggrieved was accustomed to petition the king for relief. Applications of this nature were brought before the privy-council; and the consideration of them was naturally referred to the chancellor; who, as the secretary of the king, being employed to register the decrees, and to keep the records of his baron-court, was rendered peculiarly conversant and intelligent in all judicial discussions.
A jurisdiction of this nature appears to have been acquired by the same officer, in several, if not in the greater part, of the kingdoms of Europe. Such, in particular, was that of the chancellor in France; who, under the kings of the first and second race,23 had the custody<344> of their seal, and was distinguished by the appellation of the grand referendaire.†
In England, it should seem that, before the end of the Saxon government, the chancellor was employed in giving redress against the hard sentences pronounced by the judges of the king’s demesne. As those judges, however, had then a very limited authority, his interpositions were proportionably of little importance. But, after the accession of William the Conqueror, when the aula regis became the king’s ordinary baron-court, and drew to itself almost the whole judicial business of the nation, the exercise of such extraordinary jurisdiction began to appear in a more conspicuous light. From this period, the multiplication of law-suits before the grand justiciary, produced more various instances of imperfection in the rules of common law; and, from greater experience and refinement, the necessity of relaxing in the observance of these rules, by the admission of numerous exceptions, was more sensibly felt.<345>
As applications for this purpose became frequent, provision was made in order to facilitate their progress; and the tribunal to which they were directed grew up into a regular form. A committee of the privy council had, in each case, been originally appointed along with the chancellor to determine the points in question. But, as these counsellors paid little or no attention to business of this nature; of which they had seldom any knowledge; their number, which had been arbitrary, was therefore gradually diminished; and at last their appointment having come to be regarded as a mere ceremony, was entirely discontinued. Subordinate officers were, on the other hand, found requisite in various departments, to assist the chancellor in preparing his decisions, and in discharging the other branches of his duty.
The authority, however, which was thus exercised by this great magistrate, in order to correct and to supply the most remarkable errors and defects in the ancient rules of law, appears to have still proceeded upon references from the king or from the privy council. His interpositions depended upon the decisions given by other courts, and were of too singu-<346>lar a nature to be easily reduced into a system, or to be viewed in the light of a common remedy. It was at a later period, that the chancery became an original court,24 for determining causes beyond the reach of the ordinary tribunals. This institution, arising from circumstances more accidental than those which produced the jurisdiction above-mentioned, does not seem to have pervaded the other European countries, but is in a great measure peculiar to England.
According to the feudal policy in the western part of Europe, all jurisdiction was inseparably connected with landed property; and actions of every sort proceeded upon a mandate, or commission, from that particular superior within whose territory the cause was to be tried. If an action was intended before a court deriving its jurisdiction from the king, the plaintiff made application to the crown, stating the injustice of which he complained; in answer to which, the sovereign ordered the adverse party to appear before a particular court, in order that the cause might be heard and determined. The writ or brief, issued for this purpose by the king, served not only to<347> summon the defendant into court, but also, in that particular question, to authorize the investigation of the magistrate. The different barons, in their respective demesnes, issued briefs in like manner, for bringing any law-suit under the cognizance of their several courts.
In England this mode of litigation was uniformly observed, in proceedings before the aula regis; and was afterwards adopted in the three courts of common law, among which the powers of the grand justiciary were divided.
The primitive writs, upon which any action was commenced, being accommodated to the few simple claims that were anciently enforced in a court of justice, were probably conceived in such terms as might occur without much reflection. But complaints upon the same principle of law being frequently repeated, the same terms naturally continued; so that, by long usage, a particular form of writ was rendered invariable and permanent in every species of action. This preservation of uniformity, although perhaps the effect of that propensity, so observable in all mankind, to be governed<348> on every occasion by analogy, proved, at the same time, of great advantage, by ascertaining and limiting the authority of the judge. From the advancement of property, however, and from the multiplied connections of society, there arose new claims, which had never been the subject of discussion. These required a new form of writ; the invention of which, in consistency with the established rules of law, and so calculated as to maintain good order and regularity in the system of judicial procedure, became daily a matter of greater nicety and importance.
Application, in such cases, was made to the chancellor; who, from a scrupulous regard to precedents, was frequently unwilling to interpose, but referred the parties to the next meeting of parliament. These references, however, as might be expected, soon became burdensome to that assembly; and, by a statute in the reign of Edward the first, it was provided, that, “When-soever, from thenceforth, it shall fortune in chancery that, in one case a writ is found, and in like case, falling under like law, and requiring like remedy, is found none, the clerks in chancery shall<349> agree in making the writ, or shall adjourn the plaintiffs to the next parliament, where a writ shall be framed, by consent of the learned in the law; lest it might happen for the future, that the court of our lord the king should long fail in doing justice to the suitors.”*
The new writs, devised in consequence of this law, were, for some time, directed to such of the ordinary courts as, from the nature of the case, appeared to have the most proper jurisdiction. At length, however, there occurred certain claims, in which, though seeming to require the interposition of a judge, it was thought the courts of common law would not interfere. In these, the chancellor, willing to grant a remedy, and, perhaps, not averse to the extension of his own authority, adventured to call the parties before himself, and to determine their difference.† This innovation is said to have been introduced about the time of Richard the second, and for the purpose of supporting a contrivance to elude the statute<350> of mortmain,25 by the appointment of trustees to hold a landed estate, for the benefit of those religious corporations to which it could not be directly bequeathed. The courts of common law could give no countenance to a stratagem so palpably intended to disappoint the will of the legislature. But the chancellor, as a clergyman, was led, by a fellow-feeling with his own order, to support this evasion; and, pretending to consider it as a matter of conscience, that the trustees should be bound to a faithful discharge of their trust, took upon him to enforce the will of a testator, in opposition to the law of the land.
Having successfully assumed the cognizance of one case, in which he was particularly interested, the chancellor found little difficulty in extending his jurisdiction to others. In these, he appears to have acted more from a general regard to justice; and, in consequence of the limited views entertained by the ordinary courts, his interposition seemed immediately necessary. His authority thus grew up imperceptibly: what was begun in usurpation, by acquiring the sanction of long usage, became a legal establishment; and, when it afterwards<351> excited the jealousy of the courts of common law, its abolition was regarded as impolitic and dangerous. After the direction of chancery had long been possessed by clergymen, who, from their situation, were intent upon the increase of its jurisdiction, it was, upon some occasions, committed to lawyers by profession; by whom its procedure was more digested into a regular system.
From what has been observed, concerning the extraordinary jurisdiction of the court of chancery, there can be no doubt that it was originally distinguished from that of the other courts of Westminster-hall, by the same limits which mark the distinction between common, or strict law, and equity.26 Its primitive interpositions were intended to decide according to conscience, upon those occasions when the decisions of other courts, from an adherence to ancient rules, were found hard and oppressive. It was afterwards led to interpose in original actions, in order to make effectual those new claims which the ordinary courts accounted beyond the limits of their jurisdiction. The first branch of this authority in the court of chancery was therefore designed to correct the<352> injustice, the other to supply the defects, of the other tribunals.
This accordingly seems to have been the universally received idea of that court; which is called a court of equity, by every author who has occasion to mention it. In this view it is considered by Lord Bacon,27 who himself held the office of chancellor, and who, among all his cotemporaries, appears to have been the best qualified to understand its nature. The same opinion of this court was entertained by the learned Selden. “Equity,” says that author, “is a roguish thing; for law we have a measure; know what to trust to. Equity is according to the conscience of him that is chancellor; and, as that is larger or narrower, so is equity. It is all one as if they should make the standard for measure a chancellor’s foot. What an uncertain measure would this be! One chancellor has a long foot; another a short foot; a third, an indifferent foot. ’Tis the same thing in the chancellor’s conscience.”*
The ingenious and acute author of “The Principles of Equity”28 has adopted this no-<353>tion concerning the nature of the court of chancery; and disputes with Lord Bacon, whether it is more expedient, that the equitable jurisdiction, and the jurisdiction according to strict law, should be united in the same court, as in ancient Rome; or divided between different courts, as in England?
In opposition to these authorities, Justice Blackstone,29 a writer whom, in a practical point of this nature, we can hardly suppose to be mistaken, affirms† that there is no such distinction between the chancery and the other courts of Westminster; and maintains that the latter are possessed of an equitable jurisdiction; while the former, to which, however, like other writers, he gives the appellation of a court of equity, is accustomed to decide according to the rules of strict law.
To reconcile these different opinions, it seems necessary to suppose that they refer to different periods; and that both the chancery, and the other courts in question, have, since their first establishment, been subjected to great alterations. This is what, from the nature of things, might reasonably be expected. Lord Bacon<354> and Mr. Selden speak of the court of chancery as it stood in a remote period: and, in a matter relating to the history, or even the philosophy of law, Justice Blackstone might easily be deceived.
The distinction between strict law and equity is never, in any country, a permanent distinction. It varies according to the state of property, the improvement of arts, the experience of judges, the refinement of a people.
In a rude age the observation of mankind is directed to particular objects; and seldom leads to the formation of general conclusions. The first decisions of judges, agreeable to the state of their knowledge, were such as arose, in each case, from immediate feelings; that is, from considerations of equity. These judges, however, in the course of their employment, had afterwards occasion to meet with many similar cases; upon which, from the same impressions of justice, as well as in order to avoid the appearance of partiality, they were led to pronounce a similar decision. A number of precedents were thus introduced, and, from the force of custom, acquired respect and authority. Different cases were decided, from the view of<355> certain great and leading circumstances in which they resembled each other; and the various decisions, pronounced by the courts of law, were gradually reduced into order, and distributed into certain classes, according to the several grounds and principles upon which they proceeded. The utility of establishing general rules for the determination of every law became also an object of attention. By limiting and circumscribing the power of a judge, they contributed to prevent his partiality in particular situations; and by marking out the precise line of conduct required from every individual, they bestowed upon the people at large, the security and satisfaction arising from the knowledge of their several duties and rights.
But although the simplification of decisions, by reducing them to general principles, was attended with manifest advantage, it was, in some cases, productive of inconvenience and hardship. It is difficult, upon any subject, to establish a rule which is not liable to exceptions. But the primitive rules of law, introduced by unexperienced and ignorant judges, were even far from attaining that perfection<356> which was practicable. They were frequently too narrow; and frequently too broad. They gave rise to decisions, which, in many instances fell extremely short of the mark; and which, in many others, went far beyond it. In cases of this nature, it became a question; whether it was more expedient, by a scrupulous observance of rules, to avoid the possibility of arbitrary practice, or by a particular deviation from them, to prevent an unjust determination? In order to prevent gross injustice under the sanction of legal authority; an evil of the most alarming nature; it was thought adviseable, upon extraordinary occasions, to depart from established maxims, and, from a complex view of every circumstance, to decide according to the feelings of justice. The distinction between strict law and equity was thus introduced; the former comprehending the established rules; the latter, the exceptions made to those rules in particular cases.
But when questions of equity became numerous, they too, were often found to resemble one another; and, requiring a similar decision, were by degrees arranged and classed according to their principles. After a contract, for ex-<357>ample, had been enforced by a general rule, it might happen, on different occasions, that an individual had given a promise, from the undue influence of threats and violence, from his being cheated by the other party, or from advantage being taken of his ignorance and incapacity. On every occasion of this nature an equitable decision was given; and, by an exception to the common rule of law, the promiser was relieved from performance. But, the remedy given in such cases being reduced into a regular system, could no longer be viewed in the light of a singular interposition; and, by the ordinary operation of law, every contract extorted by force, elicited by fraud, or procured in consequence of error and incapacity, was rendered ineffectual. Every primitive rule of justice was productive of numerous exceptions; and each of these was afterwards reduced under general principles; to which, in a subsequent period, new exceptions became necessary: as from the trunk of a spreading tree there issue large branches; each of which gives rise to others, that are lost in various divisions.<358>
Law and equity are thus in continual progression; and the former is constantly gaining ground upon the latter. Every new and extraordinary interposition is, by length of time, converted into an old rule. A great part of what is now strict law was formerly considered as equity; and the equitable decisions of this age will unavoidably be ranked under the strict law of the next.
Although the chancellor, therefore, was originally entrusted with the mere province of equity, the revolutions of time have unavoidably changed the nature of his jurisdiction. He continues to exert an authority in all such claims as were anciently taken under his protection; but his interpositions concerning them are now directed by general principles, to which various exceptions, according to equity, have since been introduced. He continues, likewise, those modes of procedure which were suitable to his primitive situation, and adapted to such investigations as the purpose of his establishment required.
The ordinary courts of Westminster-hall have, on the other hand, extended their jurisdiction beyond its ancient limits. Though<359> they originally did not venture to deviate from the rules of strict law, the improvements of a later age have inspired them with a more liberal spirit; and have rendered their decisions more agreeable to the natural dictates of justice.
Thus the court of chancery has been gradually divesting itself of its original character, and assuming that of the courts of common law; while those matters have been, in the same proportion, enlarging their powers, and advancing within the precincts of equity.
According to Justice Blackstone, the essential difference at present, between the chancery and the courts of common law, consists in the modes of administering justice peculiar to each. It may deserve to be remarked, that these differences are such as would naturally arise between courts originally distinguished, by having the separate departments of strict law and equity.30
1. From the mode of proof adopted by chancery, all questions which require a reference to the oath of a party are appropriated to that court. This peculiarity arose from an opinion, entertained by early judges, that it was a hard-<360>ship to compel any person to furnish evidence against himself. But the view suggested by equity was more liberal and refined. It appeared unjust that a defendant should refuse to satisfy a claim which he knew to be well founded; and, unless he was conscious of having fraudulently withheld performance, he could suffer no damage by his judicial declaration.
2. The chancery alone is competent for taking proofs by commission, when witnesses are abroad, or shortly to leave the kingdom, or hindered by age or infirmity from attending. In the courts of common law, the method of trial by a jury was universally established; and as this form required that the witnesses should be examined in court, the interposition of equity was indispensable, to authorize their examination in absence.
3. Instead of awarding damages for neglecting to fulfil a contract, the court of chancery has power to order specific performance. From the narrow principles embraced, in early times, by the courts of strict law, no complaint was regarded unless the plaintiff had suffered in his pecuniary interest; and, consequently,<361> upon the breach of contract, nothing farther could be claimed than reparation of the damage incurred. In a more equitable view, it appeared that every innocent and reasonable purpose of the contractors ought to be enforced; although, perhaps, the loss arising from the failure of performance could not be estimated in money. A court of equity, therefore, was accustomed to enjoin, that a contract should be expressly fulfilled.
4. Two other branches of power are mentioned as peculiar to the court of chancery: the one to interpret securities for money lent. This arose from the prohibition, introduced by the canon law, of taking interest for the loan of money; which occasioned an evasion, by means of what is called a double bond. The true construction of this deed, according to the intention of the parties, and in opposition to the words, was beyond the jurisdiction of the ordinary courts. The other branch of power alluded to was that of enforcing a trust. This, as I formerly observed, was intended to evade the statute of mortmain; and afforded the chancellor the first ground for assuming his extraordinary authority in original actions.<362>
Considering the origin of the court of chancery, there was no reason to expect that its jurisdiction would be separated from that of the ordinary courts by any scientific mode of arrangement. It was the offspring of accidental emergency; being merely a temporary expedient for granting an immediate relief to those who had suffered from legal injustice. Supposing that, after it became a permanent and regular tribunal, it had remained upon its original footing, the advantages likely to have resulted from it may reasonably be called in question. That one court should have a jurisdiction according to strict law, and another according to equity; that the former should be obliged, with eyes open, to pronounce an unjust sentence, in conformity to an old rule, leaving parties to procure relief by application to the latter; that, in a word, the common-law tribunal should be empowered to view the law-suit only upon one side, and the court of equity upon a different one; such a regulation appears in itself no less absurd and ridiculous, than its consequences would be hurtful, by producing a waste of time, and an accumulation of expences: not to mention the<363> uncertainty and fluctuation of conduct arising from the inaccurate and variable boundaries by which equity and strict law must ever be distinguished. Even according to the later form which the chancery has assumed, and by which it has appropriated causes of a very peculiar description, or such as require a singular mode of procedure, its line of partition from the ordinary civil courts may be thought rather arbitrary and whimsical. But, however the present distribution of the judicial powers may be deficient in speculative propriety, it seems in practice to be attended with no inconvenience. The province belonging to each of the courts of Westminster-hall appears now to be settled with an exactness which prevents all interference or embarrassment; and there is, perhaps, no country in the world where equity and strict law are more properly tempered with each other, or where the administration of justice, both in civil and criminal matters, has a freer and more uniform course.<364>
[* ]“Communia placita non sequantur curiam regis, sed teneantur in aliquo loco certo.” [[“Common pleas shall not follow [the king’s] court, but shall be held in some fixed place.” J. C. Holt, Magna Carta, 2nd ed. (Cambridge: Cambridge University Press, 1992), 454.]]
[† ]See Blackstone’s Commentaries, Book III. [[For Blackstone on the criminal court being permitted to review decisions of the common pleas court, see Commentaries on the Laws of England (London, 1765–69), vol. 3, bk. 3, 39–40, 43, 60.]]
[† ]Baron Gilbert’s History of the High Court of Chancery. Dialogus de Schaccario.
[1. ]Westminster Hall, the new home of the Court of King’s Bench, Common Pleas, and Exchequer. Originally built by William Rufus by 1099.
[2. ]See p. 66, note 12.
[* ]In the year 1302.
[3. ]Maximilian I, Holy Roman Emperor (r. 1493–1519).
[4. ]Elizabeth I (r. 1558–1603).
[5. ]Oyer and terminer: A commission formerly directed to the king’s judges, serjeants, and other persons of note, empowering them to hear and determine indictments on specified offenses, such as treasons and felonies; special commissions being granted on occasions of extraordinary disturbance such as insurrections.
[6. ]In late medieval England, royal commissioners were appointed to travel the countryside and mete out justice, empowered by temporary commissions to hear certain types of cases in a particular area (usually a county) at a particular time. Commissions of assize empowered the commissioners to hold their sessions. The Statute of Nisi Prius (literally, “unless before”), passed in 1285, held that justices of assize or circuit justices were to try the issues in ordinary actions and return the verdict to the court at Westminster.
[* ]See Blackstone’s Commentaries. Hawkins’s Pleas of the Crown.
[* ]By 18 and by 34 Edward III. the justices of peace are empowered to determine felonies and trespasses; but in practice their jurisdiction is restricted to such felonies as are within the benefit of the clergy. See Hawkins.
[* ]Magna Charta reg. Johan. c. 21. M. C. reg. Hen. III. c. 32.
[7. ]A lesser judge appointed by a magistrate to decide a legal case.
[* ]Soon after the establishment of the parliament of Paris, the king dispensed with the attendance of the dignified clergy. The ordinary lay barons afterwards absented themselves, without any express dispensation; and there remained only the princes of the blood, and peers, who retained the privilege of attending that court on solemn occasions.
[8. ]Officers of a county, district, or municipality (formerly also of the royal household), originally charged with maintaining the rights of the private property of the crown.
[9. ]A presentment is a report or return made by a jury, after holding an inquisition, or from some other knowledge. An indictment is a written accusation against a person, charging him with serious crime triable by jury.
[10. ]Alexander II, the Peaceful, king of Scotland (r. 1214–49).
[* ]See act of Parliament, 1587. ch. 82.
[† ]Ch. 77.
[11. ]Theodosius II, Eastern Roman emperor (r. 408–50), issued the Theodosian Code in 438 as an effort to systematize the complex mass of laws that had been issued since the reign of Constantine. See p. 58, note 6.
[12. ]St. Ivo de Chartres (ca. 1040–ca. 1116): French churchman and bishop of Chartres known for his collections of canon law. Gratian was a twelfth-century Italian jurist and monk who compiled the Decretum Gratiani (1139–50), the basic text for all later studies of canon law.
[13. ]Irnerius (d. before 1140), Italian jurist, scholar, and teacher of law at Bologna.
[* ]Giannone, History of Naples.
[14. ]Millar here refers to the Natural Law theorists, most prominently Hugo Grotius (1583–1645), Dutch jurist and humanist, and Samuel Pufendorf (1632–94), German jurist and historian. See p. 794, note 7.
[* ]Duck de Auctoritate Jur. Civil.—It should seem, that, since the time when this author wrote, the ideas of the inhabitants, in some of those countries, have undergone a considerable change upon that subject.
[15. ]Henry de Bracton (d. 1268?), English writer on law and until recently considered the author of De Legibus et Consuetudinibus Angliae, written before 1259 and one of the most important early English legal texts; Fleta, a treatise of unknown authorship on the English common law, was written in the late thirteenth century.
[16. ]Ranulf de Glanvill (d. 1190), English jurist; the Regiam Majestatem (1609), covering “the auld lavves and constitutions of Scotland” of 1004–1400, was compiled and translated by Sir John Skene (d. 1617), lord clerk register to James VI and lord of session.
[17. ]The Inns of Court is the collective name of the four legal societies in London that have the exclusive right of admission to the bar (Lincoln’s Inn, Gray’s Inn, the Inner Temple, and the Middle Temple). These societies date from before the fourteenth century and take their name from the buildings where the original law schools were established. The Inns of Chancery were lesser societies that depended on the former: their importance waned in the eighteenth century, and they disappeared entirely in the nineteenth century.
[18. ]Sir John Fortescue (ca. 1385–1476): English jurist, chief justice of the Court of King’s Bench, and author of De Laudibus Legum Angliae (ca. 1470), an important work on the history of English law.
[* ]Fortescue de laudibus Leg. Ang.—Also the discourses on this subject preserved in Hearne’s collection of antiquities.
[19. ]“Justice Shallow” appears in Shakespeare’s Henry IV, Part II.
[† ]Blackstone’s Commentaries. [[Millar quotes Blackstone’s Commentaries on the Laws of England, 4 vols. (London, 1765–69), vol. 1, sec. 1 (“On the Study of the Law”), 19–20. Blackstone, in turn, cites Selden.]]
[20. ]Roman emperors Nerva (r. 96–98), Trajan (r. 98–117), Hadrian (r. 117–38), Antoninus Pius (r. 138–61), and Marcus Aurelius (r. 161–80).
[21. ]The perpetual edict was commissioned by Hadrian ca. 130 and was a substantial revision of earlier edicts.
[* ]The practice of lawyers taking an honorarium [[fee, had been introduced before the end of the commonwealth, but was prohibited by statute. Complaints of the violation of this law were made in the reign of Claudius; when it was enacted, that no lawyer should receive, in one cause, more than 100 aurei gold coins, or about 80l. sterling.]]
[22. ]Herennius Modestinus, a Roman jurist of the third century whose work is represented in Justinian’s Corpus Juris Civilis; Roman emperors Gordian II (r. 238); Gordian III (r. 238–44); and Lucius Septimus Severus (r. 193–211).
[* ]The subscription of the referendarius [[referendary, who was probably the chancellor, occurs as far back, in the Anglo-Saxon period, as the reign of Ethelbert, the first Christian king. In the reign of Edward the Confessor we meet with a charter subscribed by the chancellor, under that express appellation: “Ego Rembaldus cancellarius subscripsi.” Selden on the office of lord chancellor in England. “I, Rembald the chancellor, have subscribed my name.” John Selden, A Brief Discourse Touching the Office of Lord Chancellor of England (London, 1672), 2.
[* ]Selden on the office of chancellor, 5 Eliz. c. 18.
[23. ]The Merovingian and Carolingian dynasties, respectively. See p. 66, note 12.
[† ]See Pasquier’s Recherches de la France, and the authorities to which he refers.
[24. ]A court of first instance, as against a court of appeal.
[* ]Statutes at Large, 13 Edward I. c. 24.
[† ]This was done by the writ of subpoena.
[25. ]Mortmain denoted the condition of lands held inalienably by an ecclesiastical order or other corporation.
[26. ]Strict law denotes the rigid adherence to the literal requirements of law as distinct from more liberal compliance with the substance. Equity denotes what seems naturally just and right in given circumstances.
[27. ]Francis Bacon (1561–1626): English philosopher, statesman, and, after 1618, lord chancellor. A prolific author and polymath, he wrote several legal texts, including Maxims of the Law (1630), Reading on the Stature of Uses (1642), and Elements of the Common Laws of England (1630).
[* ]Selden’s Table-talk. [[ John Selden (1584–1654): English antiquary, jurist, and politician. His historical texts include Jani Anglorum, a treatise on the ancient constitution, Titles of Honour (1614), and The History of Tithes (1618). The quotation from Selden is a paraphrase: see Table Talk of John Selden, ed. Sir Frederick Pollock (London: Quaritch, 1927), under the alphabetical heading “Equity.”]]
[28. ]Principles of Equity (1760), by the Scottish jurist and philosopher Henry Home, Lord Kames (1696–1782). In his introduction, Kames disagrees with Bacon that common law and equity should have separate courts: “may it not be argued, that dividing among different courts things intimately connected, bears hard upon every man who has a claim to prosecute? ... Weighing these different arguments with some attention, the preponderancy seems to be on the side of an united jurisdiction.” 2nd ed. (Edinburgh, 1767), 49–50.
[29. ]Sir William Blackstone (1723–80): English judge and jurist, the first professor of English law at Oxford. Blackstone is most widely known as the author of Commentaries on the Laws of England, 4 vols. (London, 1765–69; facsimile repr., 4 vols., Chicago: University of Chicago Press, 1979), a highly influential work on the English constitution.
[† ]See his Commentaries, Book III. chap. 4 and 7.
[30. ]Blackstone notes that “the extraordinary court, or court of equity, is now become the court of the greatest judicial consequence. This distinction between law and equity, as administered in different courts, is not at present known, nor seems to have ever been known, in any other country at any time.” See Commentaries, 3:49–50.