Front Page Titles (by Subject) CHAPTER IV.: OF THE PUBLIC COURTS OF COMMON LAW AND FQUITY. - Commentaries on the Laws of England in Four Books, vol. 2
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CHAPTER IV.: OF THE PUBLIC COURTS OF COMMON LAW AND FQUITY. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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OF THE PUBLIC COURTS OF COMMON LAW AND FQUITY.
We are next to consider the several species and distinctions of courts of justice which are acknowledged and used in this kingdom. And these are, either such as are of public and general jurisdiction throughout the whole realm, or such as are only of a private and special jurisdiction in some particular parts of it. Of the former there are four sorts: the universally established courts of common law and equity; the ecclesiastical courts; the courts military; and courts maritime. And, first, of such public courts as are courts of common law and equity.
The policy of our antient constitution, as regulated and established by the great Alfred, was to bring justice home to every man’s door, by constituting as many courts of judicature as there are manors and townships in the kingdom, wherein injuries were redressed in an easy and expeditious manner by the suffrage of neighbours and friends. These little courts, however, communicated with others of a larger jurisdiction, and those with others of a still greater power; ascending gradually from the lowest to the supreme courts, which were respectively constituted to correct the errors of the inferior ones, and to determine such causes as by reason of their weight and difficulty demanded a more solemn discussion. *[*31The course of justice flowing in large streams from the king, as the fountain, to his superior courts of record; and being then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed. An institution that seems highly agreeable to the dictates of natural reason, as well as of more enlightened policy; being equally similar to that which prevailed in Mexico and Peru before they were discovered by the Spaniards, and to that which was established in the Jewish republic by Moses. In Mexico each town and province had its proper judges, who heard and decided causes, except when the point in litigation was too intricate for their determination; and then it was remitted to the supreme court of the empire, established in the capital, and consisting of twelve judges.(a) Peru, according to Garcilasso de Vega, (an historian descended from the antient Incas of that country,) was divided into small districts containing ten families each, all registered and under one magistrate, who had authority to decide little differences and punish petty crimes. Five of these composed a higher class, of fifty families; and two of these last composed another, called a hundred. Ten hundreds constituted the largest division, consisting of a thousand families; and each division had its separate judge or magistrate, with a proper degree of subordination.(b) In like manner, we read of Moses, that, finding the sole administration of justice too heavy for him, he “chose able men out of all Israel, such as feared God, men of truth, hating covetousness: and made them heads over the people, rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens; and they judged the people at all seasons: the hard causes they brought unto Moses; but every small matter they judged themselves.”(c) These inferior courts, at least the name and form of them, still continue in our legal constitution; but as the superior courts of record have in practice obtained a concurrent original jurisdiction with these; and as there is, besides, a power of removing plaints or actions thither from all the inferior jurisdictions; upon these accounts (amongst others) it has happened that **32]these petty tribunals have fallen into decay, and almost into oblivion; whether for the better or the worse, may be matter of some speculation, when we consider on the one hand the increase of expense and delay, and on the other the more able and impartial decision, that follow from this change of jurisdiction.
The order I shall observe in discoursing on these several courts, constituted for the redress of civil injuries, (for with those of a jurisdiction merely crimina. I shall not at present concern myself,) will be by beginning with the lowest, and those whose jurisdiction, though public and generally dispersed throughout the kingdom, is yet (with regard to each particular court) confined to very narrow limits; and so ascending gradually to those of the most extensive and transcendent power.
1. The lowest, and at the same time the most expeditious, court of justice known to the law of England, is the court of piepoudre, curia pedis pulverizati; so called from the dusty feet of the suitors; or, according to Sir Edward Coke,(d) because justice is there done as speedily as dust can fall from the foot; upon the same principle that justice among the Jews was administered in the gate of the city,(e) that the proceedings might be the more speedy as well as public. But the etymology given us by a learned modern writer(f) is much more ingenious and satisfactory; it being derived, according to him, from pied puldreaux, (a pedler, in old French,) and therefore signifying the court of such petty chapmen as resort to fairs or markets. It is a court of record, incident to every fair and market, of which the steward of him who owns or has the toll of the market is the judge; and its jurisdiction extends to administer justice for all commercial injuries done in that very fair or market, and not in any preceding one. So that the injury must be done, complained of, heard, and determined within the compass of one and the same day, unless the fair continues longer. The court hath cognizance of **33]all matters of contract that can possibly arise within the precinct of that fair or market; and the plaintiff must make oath that the cause of action arose there.(g) From this court a writ of error lies, in the nature of an appeal, to the courts at Westminster;(h) which are now also bound by the statute 19 Geo. III. c. 70 to issue writs of execution, in aid of its process after judgment, where the person or effects of the defendant are not within the limits of this inferior jurisdiction; which may possibly occasion the revival of the practice and proceedings in these courts, which are now in a manner forgotten. The reason of their original institution seems to have been to do justice expeditiously among the variety of persons that resort from distant places to a fair or market; since it is probable that no other inferior court might be able to serve its process, or execute its judgments, on both, or perhaps either, of the parties; and therefore, unless this court had been erected, the complainant must necessarily have resorted, even in the first instance, to some superior judicature.
II. The court-baron is a court incident to every manor in the kingdom, to be holden by the steward within the said manor. This court-baron is of two natures:(i) the one is a customary court, of which we formerly spoke,(k) appertaining entirely to the copyholders, in which their estates are transferred by surrender and admittance, and other matters transacted relative to their tenures only. The other, of which we now speak, is a court of common law, and it is the court of the barons, by which name the freeholders were sometimes antiently called:1 for that it is held before the freeholders who owe suit and service to the manor, the steward being rather the registrar than the judge. These courts, though in their nature distinct, are frequently confounded together. The court we are now considering, viz., the freeholders’ court, was composed of the lord’s tenants, who were the pares of each other, and were bound by their feodal tenure to assist their lord in the dispensation of domestic justice. This was formerly held every three weeks; and its most important business is to determine, by writ of right, all controversies relating to the right of lands within the manor.2 It may also hold plea of any personal actions of debt, trespass on the case, or the like, where the debt or damages do not *[*34amount to forty shillings;(l) which is the same sum, or three marks, that bounded the jurisdiction of the antient Gothic courts in their lowest instance, or fierding-courts, so called because four were instituted within every superior district or hundred.(m) But the proceedings on a writ of right may be removed into the county-court by a precept from the sheriff called a tolt,(n) “quia tollit atque eximit causam e curia baronum.”(o) And the proceedings in all other actions may be removed into the superior courts by the king’s writs of pone,(p) or accedas ad curiam, according to the nature of the suit.(q) After judgment given, a writ also of false judgment(r) lies to the courts at Westminster to rehear and review the cause, and not a writ of error; for this is not a court of record: and therefore, in some of these writs of removal, the first direction given is to cause the plaint to be recorded, recordari facias loquelam.
III. A hundred-court is only a larger court-baron, being held for all the inhabitants of a particular hundred instead of a manor. The free suitors are here also the judges, and the steward the registrar, as in the case of a court-baron. It is likewise no court of record; resembling the former in all points, except that in point of territory it is of greater jurisdiction.(s) This is said by Sir Edward Coke to have been derived out of the county-court for the ease of the people, that they might have justice done to them at their own doors, without any charge or loss of time;(t) but its institution was probably coeval with that of hundreds themselves, which were formerly observed(u) to have been introduced, though not invented, by Alfred, being derived from the polity of the antient Germans. The centeni, we may remember, were the principal inhabitants of a district composed of different villages, originally in number a hundred, but afterwards only **35]called by that name;(v) and who probably gave the same denomination to the district out of which they were chosen. Cæsar speaks positively of the judicial power exercised in their hundred-courts and courts-baron. “Principes regionum atque pagorum” (which we may fairly construe, the lords of hundreds and manors) “inter suos jus dicunt, controversiasque minuunt.”(w) And Tacitus, who had examined their constitution still more attentively, informs us not only of the authority of the lords, but that of the centeni, the hundredors, or jury; who were taken out of the common freeholders, and had themselves a share in the determination. “Eliguntur in conciliis et principes, qui jura per pagos vicosque reddunt: centeni singulis, ex plebe comites, consilium simul et auctoritas, absunt.”(x) This hundred court was denominated hæreda in the Gothic constitution.(y) But this court, as causes are equally liable to removal from hence, as from the common court-baron, and by the same writs, and may also be reviewed by writ of false judgment, is therefore fallen into equal disuse with regard to the trial of actions.3
IV. The county-court4 is a court incident to the jurisdiction of the sheriff. It is not a court of record, but may hold pleas of debt or damages under the value of forty shillings.(z) Over some of which causes these inferior courts have, by the express words of the statute of Gloucester,(a) a jurisdiction totally exclusive of the king’s superior courts. For in order to be entitled to sue an action of trespass for goods before the king’s justiciars, the plaintiff is directed to make affidavit that the cause of action does really and bonâ fide amount to 40s.; which affidavit is now unaccountably disused,(b) except in the court of exchequer.5 The statute also 43 Eliz. c. 6, which gives the judges in many personal actions, where the jury assess less damages than 40s., a power to certify the same and *[*36abridge the plaintiff of his full costs, was also meant to prevent vexation by litigious plaintiffs; who for purposes of mere oppression might be inclinable to institute suits in the superior courts for injuries of a trifling value. The county-court may also hold plea of many real actions, and of all personal actions to any amount, by virtue of a special writ called a justicies; which is a writ empowering the sheriff for the sake of despatch to do the same justice in his county-court, as might otherwise be had at Westminster.(c) The freeholders of the county are the real judges in this court, and the sheriff is the ministerial officer. The great conflux of freeholders which are supposed always to attend at the county-court (which Spelman calls forum plebeiæ justiciæ et theatrum comitivæ potestatis)(d) is the reason why all acts of parliament at the end of every session were wont to be there published by the sheriff; why all outlawries of absconding offenders are there proclaimed; and why all popular elections which the freeholders are to make, as formerly of sheriffs and conservators of the peace, and still of coroners, verderors, and knights of the shire, must ever be made in pleno comitatu, or in full county-court. By the statute 2 Edw. VI. c. 25, no county-court shall be adjourned longer than for one month, consisting of twenty-eight days. And this was also the antient usage, as appears from the laws of king Edward the elder;(e) “præpositus (that is, the sheriff) ad quartam circiter septimanam frequentem populi concionem celebrato: cuique jus dicito; litesque singulas dirimito.” In those times the county-court was a court of great dignity and splendour, the bishop and the ealdorman, (or earl,) with the principal men of the shire, sitting therein to administer justice both in lay and ecclesiastical causes.(f) But its dignity was much impaired when the bishop was prohibited and the earl neglected to attend it. And, in modern times, as proceedings are removable from hence into the king’s superior courts, by writ of pone or recordari,(g) in the same manner as from *[*37hundred-courts and courts-baron; and as the same writ of false judgment may be had, in nature of a writ of error; this has occasioned the same disuse of bringing actions therein.6
These are the several species of common-law courts, which, though dispersed universally throughout the realm, are nevertheless of a partial jurisdiction, and confined to particular districts, yet communicating with, and, as it were, members of, the superior courts of a more extended and general nature; which are calculated for the administration of redress, not in any one lordship, hundred, or county only, but throughout the whole kingdom at large. Of which sort is,
V. The court of common pleas, or, as it is frequently termed in law, the court of common bench.
By the antient Saxon constitution, there was only one superior court of justice in the kingdom; and that court had cognizance both of civil and spiritual causes: viz., the wittena-gemote, or general council, which assembled annually or oftener, wherever the king kept his Christmas, Easter, or Whitsuntide, as well to do private justice as to consult upon public business. At the conquest the ecclesiastical jurisdiction was diverted into another channel; and the Conqueror, fearing danger from these annual parliaments, contrived also to separate their ministerial power, as judges, from their deliberative, as counsellors to the crown. He therefore established a constant court in his own hall, thence called by Bracton,(h) and other antient authors, aula regia, or aula regis. This court was composed of the king’s great officers of state resident in his palace, and usually attendant on his person; such as the lord high constable and lord mareschal, who chiefly presided in matters of honour and of arms; determining according to the law military and the law of nations. Besides these, there were the lord high steward, and lord great chamberlain; the steward of the household; the lord chancellor, whose peculiar **38]business it was to keep the king’s seal, and examine all such writs, grants, and letters as were to pass under that authority; and the lord high treasurer, who was the principal adviser in all matters relating to the revenue. These high officers were assisted by certain persons learned in the laws, who were called the king’s justiciars or justices, and by the greater barons of parliament, all of whom had a seat in the aula regia, and formed a kind of court of appeal, or rather of advice, in matters of great moment and difficulty. All these in their several departments transacted all secular business both criminal and civil, and likewise the matters of the revenue: and over all presided one special magistrate, called the chief justiciar, or capitalis justiciarius totius Angliæ; who was also the principal minister of state, the second man in the kingdom, and by virtue of his office guardian of the realm in the king’s absence. And this officer it was who principally determined all the vast variety of causes that arose in this extensive jurisdiction, and from the plenitude of his power grew at length both obnoxious to the people, and dangerous to the government which employed him.(i)
This great universal court being bound to follow the king’s household in all his progresses and expeditions, the trial of common causes therein was found very burdensome to the subject. Wherefore king John, who dreaded also the power of the justiciar, very readily consented to that article which now forms the eleventh chapter of magna carta, and enacts, “that communia placita nonsequantur curiam regis, sed teneantur in aliquo loco cerio.” This certain place was established in Westminster hall, the place where the aula regis originally sat, when the king resided in that city; and there it hath ever since continued. And the court being thus rendered fixed and stationary, the judges became so too, and a chief with other justices of the common pleas was thereupon appointed; with jurisdiction to hear and determine all pleas of land, and injuries merely civil, between subject and subject. Which critical establishment of this principal court of *[*39common law, at that particular juncture and that particular place, gave rise to the inns of court in its neighbourhood; and, thereby collecting together the whole body of the common lawyers, enabled the law itself to withstand the attacks of the canonists and civilians, who laboured to extirpate and destroy it.(j) This precedent was soon after copied by king Philip the Fair in France, who about the year 1302 fixed the parliament at Paris to abide constantly in that metropolis; which before used to follow the person of the king wherever he went, and in which he himself used frequently to decide the causes that were there depending; but all were then referred to the sole cognizance of the parliament and its learned judges.(k) And thus also in 1495 the emperor Maximilian I. fixed the imperial chamber (which before always travelled with the court and household) to be constantly held at Worms, from whence it was afterwards translated to Spires.(l)
The aula regia being thus stripped of so considerable a branch of its jurisdiction, and the power of the chief justiciar being also considerably curbed by many articles in the great charter, the authority of both began to decline apace under the long and troublesome reign of king Henry III. And, in further pursuance of this example, the other several officers of the chief justiciar were, under Edward the First, (who new-modelled the whole frame of our judicial polity,) subdivided and broken into distinct courts of judicature. A court of chivalry was erected, over which the constable and mareschal presided; as did the steward of the household over another, constituted to regulate the king’s domestic servants. The high steward, with the barons of parliament, formed an august tribunal for the trial of delinquent peers; and the barons reserved to themselves in parliament the right of reviewing the sentences of other courts in the last resort. The distribution of common justice between man and man was thrown into so provident an order, that the great judicial officers were *[*40made to form a check upon each other: the court of chancery issuing all original writs under the great seal to the other courts; the common pleas being allowed to determine all causes between private subjects; the exchequer managing the king’s revenue; and the court of king’s bench retaining all the jurisdiction which was not cantoned out to other courts, and particularly the superintendence of all the rest by way of appeal; and the sole cognizance of pleas of the crown or criminal causes. For pleas or suits are regularly divided into two sorts: pleas of the crown, which comprehend all crimes and misdemeanours, wherein the king (on behalf of the public) is the plaintiff; and common pleas, which include all civil actions depending between subject and subject. The former of these were the proper object of the jurisdiction of the court of king’s bench; the latter of the court of common pleas, which is a court of record, and is styled by Sir Edward Coke(m) the lock and key of the common law; for herein only can real actions, that is, actions which concern the right of freehold or the realty, be originally brought: and all other, or personal, pleas between man and man, are likewise here determined; though in most of them the king’s bench has also a concurrent authority.7
The judges of this court are at present(n) four in number, one chief and three puisnè justices, created by the king’s letters-patent, who sit every day in the four terms to hear and determine all matters of law arising in civil causes, whether real, personal, or mixed and compounded of both. These it takes cognizance of, as well originally as upon removal from the inferior courts before mentioned. But a writ of error, in the nature of an appeal, lies from this court into the court of king’s bench.8
**41]VI. The court of king’s bench (so called because the king used formerly to sit there in person,(o) the style of the court still being coram ipso rege)9 is the supreme court of common law in the kingdom; consisting of a chief justice and three puisnè justices, who are by their office the sovereign conservators of the peace and supreme coroners of the land. Yet, though the king himself used to sit in this court, and still is supposed so to do, he did not, neither by law is he empowered(p) to, determine any cause or motion, but by the mouth of his judges, to whom he hath committed his whole judicial authority.(q)10
This court, which (as we have said) is the remnant of the aula regia, is not, nor can be, from the very nature and constitution of it, fixed to any certain place, but may follow the king’s person wherever he goes: for which reason all process issuing out of this court in the king’s name is returnable “ubicunque fuerimus in Anglia.” It hath indeed, for some centuries past, usually sat at Westminster, being an antient palace of the crown; but might remove with the king to York or Exeter, if he thought proper to command it. And we find that, after Edward I. had conquered Scotland, it actually sat at Roxburgh.(r) And this movable quality, as well as its dignity and power, are fully expressed by Bracton when he says that the justices of this court are “capitales, generales, perpetui, et majores; a latere regis residentes, qui omnium aliorum corrigere tenentur injurias et errores.”(s) And it is moreover especially provided in the articuli super cartas,(t) that the king’s chancellor, and the justices of his bench, shall follow him, so that he may have at all times near unto him some that be learned in the laws.
*[*42The jurisdiction of this court is very high and transcendent. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined here, or prohibit their progress below. It superintends all civil corporations in the kingdom. It commands magistrates and others to do what their duty requires, in every case where there is no other specific remedy. It protects the liberty of the subject, by speedy and summary interposition. It takes cognizance both of criminal and civil causes: the former in what is called the crown side, or crown office; the latter in the plea side of the court. The jurisdiction of the crown side is not our present business to consider: that will be more properly discussed in the ensuing book. But on the plea side, or civil branch, it hath an original jurisdiction and cognizance of all actions of trespass or other injury alleged to be committed vi et armis; of actions for forgery of deeds; maintenance, conspiracy, deceit, and actions on the case which allege any falsity or fraud; all of which savour of a criminal nature, although the action is brought for a civil remedy; and make the defendant liable in strictness to pay a fine to the king, as well as damages to the injured party.(u) The same doctrine is also now extended to all actions on the case whatsoever:(w) but no action of debt or detinue, or other mere civil action, can by the common law be prosecuted by any subject in this court by original writ out of chancery;(x)11 though an action of debt given by statute may be brought in the king’s bench as well as in the common pleas.(y) And yet this court might always have held plea of any civil action, (other than actions real,) provided the defendant was an officer of the court; or in the custody of the marshal, or prison-keeper, of this court, for a breach of the peace or any other offence.(z) And, in process of time, it began by a fiction to hold plea of all personal actions whatsoever, and has continued to do so for ages:(a) it being surmised that the defendant is arrested for *[*43a supposed trespass, which he never has in reality committed; and, being thus in the custody of the marshal of the court, the plaintiff is at liberty to proceed against him for any other personal injury: which surmise, of being in the marshal’s custody, the defendant is not at liberty to dispute.(b) And these fictions of law, though at first they may startle the student, he will find upon further consideration to be highly beneficial and useful; especially as this maxim is ever invariably observed, that no fiction shall extend to work an injury; its proper operation being to prevent a mischief, or remedy an inconvenience, that might result from the general rule of law.(c) So true it is, that in fictione juris semper subsistit æquitas.(d) In the present case, it gives the suitor his choice of more than one tribunal before which he may institute his action; and prevents the circuity and delay of justice, by allowing that suit to be originally, and in the first instance, commenced in this court, which, after a determination in another, might ultimately be brought before it on a writ of error.12
For this court is likewise a court of appeal, into which may be removed by writ of error all determinations of the court of common pleas, and of all inferior courts of record in England; and to which a writ of error lies also from the court of king’s bench in Ireland. Yet even this so high and honourable court is not the dernier resort of the subject; for, if he be not satisfied with any determination here, he may remove it by writ of error into the house of lords. or the court of exchequer chamber, as the case may happen, according to the nature of the suit and the manner in which it has been prosecuted.13
VII. The court of exchequer is inferior in rank not only to the court of king’s bench, but to the common pleas also: but I have chosen to consider it in this order on account of its double capacity as a court of law and a court of equity **44]also. It is a very antient court of record, set up by William the Conquerer,(e) as a part of the aula regia,(f) though regulated and reduced to its present order by king Edward I.,(g) and intended principally to order the revenues of the crown, and to recover the king’s debts and duties.(h) It is called the exchequer, scaccharium, from the checked cloth, resembling a chessboard, which covers the table there, and on which, when certain of the king’s accounts are made up, the sums are marked and scored with counters. It consists of two divisions: the receipt of the exchequer, which manages the royal revenue, and with which these commentaries have no concern; and the court or judicial part of it, which is again subdivided into a court of equity and a court of common law.14
The court of equity is held in the exchequer chamber before the lord treasurer, the chancellor of the exchequer, the chief baron, and three puisnè ones. These Mr. Selden conjectures(i) to have been antiently made out of such as were barons of the kingdom, or parliamentary barons; and thence to have derived their name; which conjecture receives great strength from Bracton’s explanation of magna carta, c. 14, which directs that the earls and barons be amerced by their peers; that is, says he, by the barons of the exchequer.(k) The primary and original business of this court is to call the king’s debtors to account, by bill filed by the attorney-general; and to recover any lands, tenements, or hereditaments, any goods, chattels, or other profits or benefits, belonging to the crown. So that by their original constitution the jurisdiction of the court of common pleas, king’s bench, and exchequer was entirely separate and distinct: the common pleas being intended to decide all controversies between subject and subject; the king’s bench to correct all crimes and misdemeanours that amount to a breach of the peace, the king being then plaintiff, as such offences are in open derogation of the jura regalia of his crown; and the exchequer to adjust **45]and recover his revenue, wherein the king also is plaintiff, as the withholding and non-payment thereof is an injury to his jura fiscalia. But, as by a fiction almost all sorts of civil actions are now allowed to be brought in the king’s bench, in like manner by another fiction all kinds of personal suits may be prosecuted in the court of exchequer. For as all the officers and ministers of this court have, like those of other superior courts, the privilege of suing and being sued only in their own court; so also the king’s debtors and farmers, and all accomptants of the exchequer, are privileged to sue and implead all manner of persons in the same court of equity that they themselves are called into. They have likewise privilege to sue and implead one another, or any stranger, in the same kind of common-law actions (where the personalty only is concerned) as are prosecuted in the court of common pleas.
This gives original to the common-law part of their jurisdiction, which was established merely for the benefit of the king’s accomptants, and is exercised by the barons only of the exchequer, and not the treasurer or chancellor. The writ upon which all proceedings here are grounded is called a quo minus: in which the plaintiff suggests that he is the king’s farmer or debtor, and that the defendant hath done him the injury or damage complained of; quo minus sufficiens existit, by which he is less able to pay the king his debt or rent. And these suits are expressly directed, by what is called the statute of Rutland,(l) to be confined to such matters only as specially concern the king or his ministers of the exchequer. And by the articuli super cartas,(m) it is enacted, that no common pleas be thenceforth holden in the exchequer contrary to the form of the great charter. But now, by the suggestion of privilege, any person may be admitted to sue in the exchequer as well as the king’s accomptant. The surmise, of being debtor to the king, is therefore become matter of form and mere words of course, and the court is open to all the nation equally.15 The same holds with regard to the equity side of the court: for there any person may file *[*46a bill against another upon a bare suggestion that he is the king’s accomptant; but whether he is so, or not, is never controverted. In this court on the equity side, the clergy have long used to exhibit their bills for the non-payment of tithes; in which case the surmise of being the king’s debtor is no fiction, they being bound to pay him their first-fruits and annual tenths. But the chancery has of late years obtained a large share in this business.
An appeal from the equity side of this court lies immediately to the house of peers; but from the common-law side, in pursuance of the statute 31 Edw. III c. 12, a writ of error must be first brought into the court of exchequer chamber. And from the determination there had, there lies, in the dernier resort, a writ of error to the house of lords.16
VIII. The high court of chancery is the only remaining, and in matters of civil property by much the most important of any, of the king’s superior and original courts of justice. It has its name of chancery, cancellaria, from the judge who presides here, the lord chancellor, or cancellarius; who, Sir Edward Coke tells us, is so termed a cancellando, from cancelling the king’s letters patent when granted contrary to law, which is the highest point of his jurisdiction.(n)17 But the office and name of chancellor (however derived) was certainly known to the courts of the Roman emperors: where it originally seems to have signified a chief scribe or secretary, who was afterwards invested with several judicial powers, and a general superintendency over the rest of the officers of the prince. From the Roman empire it passed to the Roman church, ever emulous of imperial state; and hence every bishop has to this day his chancellor, the principal judge of his consistory. And when the modern kingdoms of Europe were established upon the ruins of the empire, almost every state preserved its chancellor, with different jurisdictions and dignities, according to their different constitutions. But in all of them he seems to have had the supervision of all charters, letters, and such other public instruments of the crown as were authenticated in the most solemn manner: and therefore **47]when seals came in use, he had always the custody of the king’s great seal. So that the office of chancellor, or lord keeper,18 (whose authority by statute 5 Eliz. c. 18, is declared to be exactly the same,) is with us at this day created by the mere delivery of the king’s great seal into his custody:(o) whereby he becomes, without writ or patent, an officer of the greatest weight and power of any now subsisting in the kingdom, and superior in point of precedency to every temporal lord.(p) He is a privy counsellor by his office,(q) and, according to lord chancellor Ellesmere,(r) prolocutor of the house of lords by prescription. To him belongs the appointment of all justices of the peace throughout the kingdom. Being formerly usually an ecclesiastic, (for none elso were then capable of an office so conversant in writings,) and presiding over the royal chapel,(s) he became keeper of the king’s conscience; visitor in right of the king, of all hospitals and colleges of the king’s foundation; and patron of all the king’s livings under the value of twenty marks(t)per annum in the king’s books.19 He is the general guardian of all infants, idiots, and lunatics; and has the general superintendence of all charitable uses in the kingdom. And all this over and above the vast and extensive jurisdiction which he exercises in his judicial capacity in the court of chancery; wherein, as in the exchequer, there are two distinct tribunals: the one ordinary, being a court of common law; the other extraordinary, being a court of equity.
The ordinary legal court is much more antient than the court of equity. Its jurisdiction is to hold plea upon a scire facias to repeal and cancel the king’s letters-patent, when made against law or upon untrue suggestions; and to hold plea of petitions, monstrans de droit, traverses of offices, and the like; when the king hath been advised to do any act, or is put in possession of any lands or goods, in prejudice of a subject’s right.(u) On proof of which, as the king can never **48]be supposed intentionally to do any wrong, the law questions not but he will immediately redress the injury, and refers that conscientious task to the chancellor, the keeper of his conscience. It also appertains to this court to hold plea of all personal actions, where any officer or minister of the court is a party.(v) It might likewise hold plea (by scire facias) of partitions of land in coparcenery,(w) and of dower,(x) where any ward of the crown was concerned in interest, so long as the military tenures subsisted: as it now may also do of the tithes of forest land, where granted by the king, and claimed by a stranger against the grantee of the crown;(y) and of executions on statutes, or recognizances in nature thereof, by the statute 23 Henry VIII. c. 6.(z) But if any cause comes to issue in this court, that is, if any fact be disputed between the parties, the chancellor cannot try it, having no power to summon a jury; but must deliver the record propria manu into the court of king’s bench, where it shall be tried by the country, and judgment shall be there given thereon.(a)20 And when judgment is given in chancery upon demurrer or the like, a writ of error in nature of an appeal lies out of this ordinary court into the court of king’s bench:(b) though so little is usually done on the common-law side of the court, that I have met with no traces of any writ of error(c) being actually brought, since the fourteenth year of queen Elizabeth, ad 1572.
In this ordinary or legal court is also kept the officina justitiæ: out of which all original writs that pass under the great seal, all commissions of charitable uses, sewers, bankruptcy, idiotcy, lunacy, and the like, do issue; and for which it is always open to the subject, who may there at any time demand and have, ex debito justitiæ, any writ that his occasions **49]may call for. These writs (relating to the business of the subject) and the returns to them were, according to the simplicity of antient times, originally kept in a hamper, in hanaperio; and the others (relating to such matters wherein the crown is immediately or mediately concerned) were preserved in a little sack or bag, in parva oaga: and thence hath arisen the distinction of the hanaper office and petty bag office, which both belong to the common-law court in chancery.
But 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:(d) and yet the difference of one from the other, when administered by the same tribunal, was perfectly familiar to the Romans;(e) the jus prætorium, or discretion of the prætor, being distinct from the leges, or standing laws,(f) but the power of both centred in one and the same magistrate, who was equally intrusted to pronounce the rule of law, and to apply it to particular cases by the principles of equity. With us, too, the aula regia, which was the supreme court of judicature, undoubtedly administered equal justice according to the rules of both or either, as the case might chance to require: and, when that was broken to pieces, the idea of a court of equity, as distinguished from a court of law, did not subsist in the original plan of partition. For though equity is mentioned by Bracton(g) as a thing contrasted to strict law, yet neither in that writer, nor in Glanvil or Fleta, nor yet in Britton, (composed under the auspices and in the name of Edward I., and *[*50treating particularly of courts and their several jurisdictions,) is there a syllable to be found relating to the equitable jurisdiction of the court of chancery. It seems therefore probable, that when the courts of law, proceeding merely upon the ground of the king’s original writs, and confining themselves strictly to that bottom, gave a harsh or imperfect judgment, the application for redress used to be to the king in person assisted by his privy-council, (from whence also arose the jurisdiction of the court of requests,(h) which was virtually abolished by the statute 16 Car. I. c. 10;) and they were wont to refer the matter either to the chancellor and a select committee, or by degrees to the chancellor only, who mitigated the severity or supplied the defects of the judgments pronounced in the courts of law, upon weighing the circumstances of the case. This was the custom not only among our Saxon ancestors, before the institution of the aula regia,(i) but also after its dissolution, in the reign of king Edward I.;(k) and perhaps, during its continuance, in that of Henry II.(l)
In these early times the chief judicial employment of the chancellor must have been in devising new writs, directed to the courts of common law, to give remedy in cases where none was before administered. And to quicken the diligence of the clerks in the chancery, who were too much attached to antient precedents, it is provided by statute Westm. 2, 13 Edw. I. c. 24, that “whensoever from thenceforth in one case a writ shall be found in the chancery, and in a like case falling under the same right and requiring like remedy *[*51no precedent of a writ can be produced, the clerks in chancery shall agree in forming a new one; and, if they cannot agree, it shall be adjourned to the next parliament, where a writ shall be framed by consent of the learned in the law,(m) lest it happen for the future that the court of our lord the king be deficient in doing justice to the suitors.” And this accounts for the very great variety of writs of trespass on the case to be met with in the register; whereby the suitor had ready relief, according to the exigency of his business, and adapted to the specialty, reason, and equity of his very case.(n) Which provision (with a little accuracy in the clerks of the chancery, and a little liberality in the judges, by extending rather than narrowing the remedial effects of the writ) might have effectually answered all the purposes of a court of equity;(o) except that of obtaining a discovery by the oath of the defendant.
But when, about the end of the reign of king Edward III., uses of land were introduced,(p) and, though totally discountenanced by the courts of common law, were considered as fiduciary deposits and binding in conscience by the clergy, the separate jurisdiction of the chancery as a court of equity began to be established;(q) and John Waltham, who was bishop of Salisbury and chancellor to king Richard II., by a strained interpretation of the above-mentioned statute of Westm. 2, devised the writ of subpœna, returnable in the court of chancery only, to make the feoffee to uses accountable to his cestuy que use: which process was afterwards extended to other matters wholly determinable at the common law, upon false and fictitious suggestions; for which therefore the chancellor himself is, by statute 17 Ric. II. c. 6, directed to give damages to the party unjustly aggrieved. But as the **52]clergy, so early as the reign of king Stephen, had attempted to turn their ecclesiastical courts into courts of equity, by entertaining suits pro lœsione fidei, as a spiritual offence against conscience, in case of non-payment of debts or any breach of civil contracts;(r) till checked by the constitutions of Clarendon,(s) which declared that “placita de debitis, quœ fide interposita debentur, vel absque interpositione fidei, sint in justitia regis:” therefore probably the ecclesiastical chancellors, who then held the seal, were remiss in abridging their own new-acquired jurisdiction; especially as the spiritual courts continued(t) to grasp at the same authority as before in suits pro lœsione fidei so late as the fifteenth century,(u) till finally prohibited by the unanimous concurrence of all the judges. However, it appears from the parliament rolls,(w) that in the reigns of Henry IV. and V. the commons were repeatedly urgent to have the writ of subpœna entirely suppressed, as being a novelty devised by the subtlety of chancellor Waltham against the form of the common law; whereby no plea could be determined unless by examination on oath of the parties, according to the form of the law civil, and the law of holy church, in subversion of the common law. But though Henry IV., being then hardly warm in his throne, gave a palliating answer to their petitions, and actually passed the statute 4 Hen. IV. c. 23, whereby judgments at law are declared irrevocable unless by attaint or writ of error, yet his son put a negative at once upon their whole application: and in Edward IV.’s time the process by bill and subpœna, was become the daily practice of the court.(x)
**53]But this did not extend very far: for in the antient treatise entitled diversité des courtes,(y) supposed to be written very early in the sixteenth century, we have a catalogue of the matters of conscience then cognizable by subpœna in chancery, which fall within a very narrow compass. No regular judicial system at that time prevailed in the court; but the suitor, when he thought himself aggrieved, found a desultory and uncertain remedy, according to the private opinion of the chancellor, who was generally an ecclesiastic, or sometimes (though rarely) a statesman: no lawyer having sat in the court of chancery from the times of the chief justices Thorp and Knyvet, successively chancellors to king Edward III. in 1372 and 1373,(z) to the promotion of Sir Thomas More by king Henry VIII. in 1530. After which the great seal was indiscriminately committed to the custody of lawyers, or courtiers,(a) or churchmen,(b) according as the convenience of the times and the disposition of the prince required, till serjeant Puckering was made lord keeper in 1592; from which time to the present the court of chancery has always been filled by a lawyer, excepting the interval from 1621 to 1625, when the seal was intrusted to Dr. Williams, then dean of Westminster, but afterwards bishop of Lincoln, who had been chaplain to lord Ellesmere when chancellor.(c)
In the time of lord Ellesmere (ad 1616) arose that notable dispute between the courts of law and equity, set on foot by Sir Edward Coke, then chief justico of the court of king’s bench; whether a court of equity could give relief after or against a judgment at the common law? This contest was so warmly carried on, that indictments were preferred against the suitors, solicitors, the counsel, and even a master in chancery, for having incurred a prœmunire by questioning in a court of equity a judgment in the court of king’s bench obtained by gross fraud and imposition.(d) This matter, being brought before the king, was by him referred *[*54to his learned counsel for their advice and opinion; who reported so strongly in favour of the courts of equity,(e) that his majesty gave judgment in their behalf; but, not contented with the irrefragable reasons and precedents produced by his counsel, (for the chief justice was clearly in the wrong,) he chose rather to decide the question by referring it to the plenitude of his royal prerogative.(f) Sir Edward Coke submitted to the decision,(g) and thereby made atonement for his error: but this struggle, together with the business of commendams, (in which he acted a very noble part,)(h) and his controlling the commissioners of sewers,(i) were the open and avowed causes,(k) first of his suspension, and soon after of his removal, from his office.
Lord Bacon, who succeeded lord Ellesmere, reduced the practice of the court into a more regular system; but did not sit long enough to effect any considerable revolution in the science itself: and few of his decrees which have reached us are of any great consequence to posterity. His successors, in the reign of Charles I., did little to improve upon his plan: and even after the restoration the seal was committed to the earl of Clarendon, who had withdrawn from practice, as a lawyer, near twenty years; and afterwards to the earl of Shaftesbury, who (though a lawyer by education) had never practised at all. Sir Heneage Finch, who succeeded in 1673, *[*55and became afterwards earl of Nottingham, was a person of the greatest abilities and most uncorrupted integrity; a thorough master and zealous defender of the laws and constitution of his country; and endued with a pervading genius that enabled him to discover and to pursue the true spirit of justice, notwithstanding the embarrassments raised by the narrow and technical notions which then prevailed in the courts of law, and the imperfect ideas of redress which had possessed the courts of equity. The reason and necessities of mankind, arising from the great change in property by the extension of trade and the abolition of military tenures, co-operated in establishing his plan, and enabled him, in the course of nine years, to build a system of jurisprudence and jurisdiction upon wide and rational foundations; which have also been extended and improved by many great men who have since presided in chancery. And from that time to this the power and business of the court have increased to an amazing degree.21
From this court of equity in chancery, as from the other superior courts, an appeal lies to the house of peers. But there are these differences between appeals from a court of equity, and writs of error from a court of law: 1. That the former may be brought upon any interlocutory matter; the latter upon nothing but only a definitive judgment. 2. That on writs of error the house of lords pronounces the judgment; on appeals it gives direction to the court below to rectify its own decree.
IX. The next court that I shall mention is one that hath no original jurisdiction, but is only a court of appeal, to correct the errors of other jurisdictions. This is the court of exchequer chamber; which was first erected by statute 31 Edw. III. c. 12 to determine causes by writs of error from the common-law side of the court of exchequer. And to that end it consists of the lord chancellor and lord treasurer, taking unto them the justices of the king’s bench and common pleas. In imitation of which, a second court of exchequer chamber was erected by statute 27 Eliz. c. 8, consisting of the justices of the common pleas, and the barons of the exchequer, before whom writs of error may be brought to reverse judgments *[*56in certain suits(l) originally begun in the court of king’s bench.22 Into the court also of exchequer chamber (which then consists of all the judges of the three superior courts, and now and then the lord chancellor also) are sometimes adjourned from the other courts such causes as the judges upon argument find to be of great weight and difficulty, before any judgment is given upon them in the court below.(m)
From all the branches of this court of exchequer chamber a writ of error lies to.
X. The house of peers, which is the supreme court of judicature in the kingdom, having at present no original jurisdiction over causes, but only upon appeals and writs of error, to rectify any injustice or mistake of the law committed by the courts below. To this authority this august tribunal succeeded of course upon the dissolution of the aula regia. For, as the barons of parliament were constituent members of that court; and the rest of its jurisdiction was dealt out to other tribunals, over which the great officers who accompanied those barons were respectively delegated to preside; it followed, that the right of receiving appeals, and superintending all other jurisdictions, still remained in the residue of that noble assembly, from which every other great court was derived. They are therefore in all causes the last resort, from whose judgment no further appeal is permitted; but every subordinate tribunal must conform to their determinations; the law reposing an entire confidence in the honour and conscience of the noble persons who compose this important assembly, that (if possible) they will make themselves masters of those questions which they undertake to decide, and in all dubious cases refer themselves to the opinions of the judges who are summoned by writ to advise them; since upon their decision all property must finally depend.23
Hitherto may also be referred the tribunal established by statute 14 Edw. III. c. 5, consisting (though now out of use) of one prelate, two earls, and two barons, who are to be chosen at every new parliament, to hear complaints of grievances and delays of justice in the king’s courts, and (with the advice of the chancellor, treasurer, and justices of both benches) to give directions for remedying these *[*57inconveniences in the courts below. This committee seems to have been established lest there should be a defect of justice for want of a supreme court of appeal during any long intermission or recess of parliament; for the statute further directs, that if the difficulty be so great that it may not well be determined without assent of parliament, it shall be brought by the said prelate, earls, and barons, unto the next parliament, who shall finally determine the same.
XI. Before I conclude this chapter, I must also mention an eleventh species of courts of general jurisdiction and use, which are derived out of, and act as collateral auxiliaries to, the foregoing. I mean the courts of assize and nisi prius.
These are composed of two or more commissioners, who are twice in every year sent by the king’s special commission all round the kingdom, (except London and Middlesex, where courts of nisi prius are holden in and after every term, before the chief or other judge of the several superior courts;24 and except the four northern counties, where the assizes are holden only once a year,) to try by a jury of the respective counties the truth of such matters of fact as are then under dispute in the courts of Westminster hall. These judges of assize came into use in the room of the antient justices in eyre, justiciarii in itinere, who were regularly established, if not first appointed, by the parliament of Northampton, ad 1176, 22 Hen. II.,(n) with a delegated power from the king’s great court, or aula regia, being looked upon as members thereof; and they afterwards made their circuit round the kingdom once in seven years for the purpose of trying causes.(o) They were afterwards directed, by magna carta, c. 12, to be sent into every county once a year to take (or receive the verdict of the jurors or recognitors in certain actions, then called) recognitions or assizes; the most difficult of which they are directed to adjourn into the court of common pleas to be there determined. The itinerant justices were sometimes mere justices of assize, or of dower, or of gaol-delivery, and the like; and *[*58they had sometimes a more general commission to determine all manner of causes, being constituted justiciarii ad omnia placita:(p) but the present justices of assize and nisi prius are more immediately derived from the statute Westm. 2, 13 Edw. I. c. 30, which directs them to be assigned out of the king’s sworn justices, associating to themselves one or two discreet knights of each county. By statute 27 Edw. I. c. 4, (explained by 12 Edw. II. c. 3,) assizes and inquests were allowed to be taken before any one justice of the court in which the plea was brought, associating to him one knight or other approved man of the county. And lastly, by statute 14 Edw. III. c. 16, inquests of nisi prius may be taken before any justice of either bench, (though the plea be not depending in his own court,) or before the chief baron of the exchequer, if he be a man of the law; or otherwise before the justices of assize, so that one of such justices be a judge of the king’s bench or common pleas, or the king’s serjeant sworn.25 They usually make their circuits in the respective vacations after Hilary and Trinity terms; assizes being allowed to be taken in the holy time of lent by consent of the bishops at the king’s request, as expressed in statute Westm. 1, 3 Edw. I. c. 51. And it was also usual, during the times of popery, for the prelates to grant annual licenses to the justices of assize to administer oaths in holy times; for, oaths being of a sacred nature, the logic of those deluded ages concluded that they must be of ecclesiastical cognizance.(q) The prudent jealousy of our ancestors ordained(r) that no man of law should be judge of assize in his own county, wherein he was born or doth inhabit;26 and a similar prohibition is found in the civil law,(s) which has carried this principle so far that it is equivalent to the crime of sacrilege for a man to be governor of the province in which he was born or has any civil connexion.(t)
The judges upon their circuits now sit by virtue of five several authorities. 1. The commission of the peace. 2. A commission of oyer and terminer. 3. A commission of general gaol-delivery. The consideration of all which belongs properly **59]to the subsequent book of these commentaries. But the fourth commission is, 4. A commission of assize, directed to the justices and serjeants therein named, to take (together with their associates) assizes in the several counties,—that is, to take the verdict of a peculiar species of jury, called an assize, and summoned for the trial of landed disputes, of which hereafter. The other authority is, 5. That of nisi prius, which is a consequence of the commission of assize,(u) being annexed to the office of those justices by the statute of Westm. 2, 13 Edw. I. c. 30, and it empowers them to try all questions of fact issuing out of the courts of Westminster that are then ripe for trial by jury.27 These, by the course of the courts,(w) are usually appointed to be tried at Westminster in some Easter or Michaelmas Term, by a jury returned from the county wherein the cause of action arises; but with this proviso, nisi prius, unless before the day prefixed the judges of assize come into the county in question. This they are sure to do in the vacations preceding each Easter and Michaelmas Term, which saves much expense and trouble. These commissions are constantly accompanied by writs of association, in pursuance of the statutes of Edward I. and II. before mentioned; whereby certain persons (usually the clerk of assize and his subordinate officers) are directed to associate themselves with the justices and serjeants, and they are required to admit the said persons into their society, in order to take the assizes, &c., that a sufficient supply of commissioners may never be wanting. But, to prevent the delay of justice by the absence of any of them, there is also issued of course a writ of si non omnes, directing that if all cannot be present, any two of them (a justice or a serjeant being one) may proceed to execute the commission.
These are the several courts of common law and equity which are of public and general jurisdiction throughout the kingdom. And, upon the whole, we cannot but admire the wise economy and admirable provision of our ancestors in settling the distribution of justice in a method so well calculated for cheapness, expedition, and ease. By the constitution which they established, all trivial debts and injuries of small consequence were to be recovered or redressed in every *[*60man’s own county, hundred, or perhaps parish. Pleas of freehold, and more important disputes of property, were adjourned to the king’s court of common pleas, which was fixed in one place for the benefit of the whole kingdom. Crimes and misdemeanours were to be examined in a court by themselves, and matters of the revenue in another distinct jurisdiction. Now indeed, for the ease of the subject and greater despatch of causes, methods have been found to open all the three superior courts for the redress of private wrongs; which have remedied many inconveniences, and yet preserved the forms and boundaries handed down to us from high antiquity. If facts are disputed, they are sent down to be tried in the country by the neighbours; but the law arising upon those facts is determined by the judges above: and, if they are mistaken in point of law, there remain in both cases two successive courts of appeal to rectify such their mistakes. If the rigour of general rules does in any case bear hard upon individuals, courts of equity are open to supply the defects, but not sap the fundamentals, of the law. Lastly, there presides over all one great court of appeal, which is the last resort in matters of both law and equity, and which will therefore take care to preserve a uniformity and equilibrium among all the inferior jurisdictions: a court composed of prelates selected for their piety, and of nobles advanced to that honour for their personal merit, or deriving both honour and merit from an illustrious train of ancestors; who are formed by their education, interested by their property, and bound upon their conscience and honour, to be skilled in the laws of their country. This is a faithful sketch of the English juridical constitution, as designed by the masterly hand of our forefathers, of which the great original lines are still strong and visible; and if any of its minuter strokes are by the length of time at all obscured or decayed, they may still be with ease restored to their pristine vigour; and that not so much by fanciful alterations and wild experiments (so frequent in this fertile age) as by closely adhering to the wisdom of the antient plan, concerted by Alfred and perfected by Edward I., and by attending to the spirit, without neglecting the forms, of their excellent and venerable institutions.
[(a) ] Mod. Un. Hist. xxxviii. 469.
[(b) ] Ibid. xxxix. 14.
[(c) ] Exod. xviii.
[(d) ] 4 Inst. 272.
[(e) ] Ruth iv.
[(f) ] Barrington’s Observat. on the stat. 337.
[(g) ] Stat. 17 Edw. IV. c. 2.
[(h) ] Cro. Eliz. 773.
[(i) ] Co. Litt. 58.
[(k) ] Book ii. ch. 4, 6, and 22.
[1 ] All the freeholders of the king were called barons; but the editor is not aware that it appears from any authority that this word was ever applied to those who held freeholds of a subject. See an account of the ancient barons, ante, 1 book, 399, n. 5. It seems to be the more obvious explanation of the court-baron that it was the court of the baron or lord of the manor, to which his freeholders owed suit and service. In like manner, we say the king’s court and the sheriff’s court.—Christian.
[2 ] The writ of right having been abolished, (3 & 4 W. IV. c. 27, s. 36,) this branch of its jurisdiction no longer exists.—Kerr.
[(l) ] Finch, 248.
[(m) ] Stiernhook de jure Goth. l. 1, c. 2.
[(n) ] F. N. B. 3, 4. See Append No. I. 2.
[(o) ] 3 Rep. pref.
[(p) ] See Append. No. I. 3.
[(q) ] F. N. B. 4, 70. Finch, L. 444, 445.
[(r) ] F. N. B. 18.
[(s) ] Finch, L. 243. 4 Inst. 267.
[(t) ] 2 Inst. 71.
[(u) ] Book i. p. 116.
[(v) ]Centeni ex singulis pagis sunt, idque ipsum inter suos vocantur, et, quod primo numeris fuit, jam nomen et honor ist. Tac. de Mor. Germ. c. 6.
[(w) ]De Bell. Gall. l. 6, c. 22.
[(x) ]De Morib. Germ. c. 13.
[(y) ] Stiernhook, l. 1, c. 2.
[3 ] The courts-baron and hundred-courts have long been entirely obsolete as courts of civil jurisdiction; and the statute 9 & 10 Vict. c. 95 has accordingly empowered the lords of any hundred, or of any honour, manor, or liberty having any court in right thereof in which debts or demands may be recovered, to surrender the right of holding such courts to the crown, after which surrender the right of holding such courts is to cease and determine.—Kerr.
[4 ] As to the county-court in general, see Com. Dig. County-Courts, B. 3. Bac. Abr. Court, County-Court. Vin. Abr. Court, County, 7 vol. 5. 4 Inst. 266. No action can be brought in the county-court, unless the cause of action arose, and the defendant reside, within the county; and if that be not the case, the action may be brought in the superior court, although for a sum less than 40s.; for if no action can be brought in the inferior jurisdiction for so small a debt, the plaintiff is not therefore to lose it. Per Lord Kenyon, 6 T. R. 175. 8 T. R. 235. 1 Bos. & P. 75. 1 Dowl. & R. 359. So if the contract be made on the high seas, as for wages, it cannot be recovered in the county-court. 1 B. & A. 223. But the non-residence of the plaintiff within the jurisdiction constitutes no objection at common law to his proceeding in the county-court, (1 East, 352;) though in some local courts of request, constituted by particular statutes, both plaintiff and defendant must reside within the jurisdiction. 8 T. R. 236. This court has no jurisdiction over trespasses laid to have been committed vi et armis, (per Lord Kenyon, 3 T. R. 38;) because the county-court, not being a court of record, cannot fine the defendant. Com. Dig. County C. 8. But it is said to be otherwise when the proceedings are by justicies. Com. Dig. County C. 5. The writ of justicies does not, however, except in this instance and as respects the amount of the debt, enlarge the sheriff’s jurisdiction. 1 Lev. 253. Vin. Abr. Court, County, D., a. 2, pl. 6. An entire debt exceeding 40s. cannot be split, so as to be sued for in this court; nor can the creditor falsely acknowledge satisfaction of a part so as to proceed for the rest. 2 Inst. 312. Palm. 564. Com. Dig. County C. 8. 2 Roll. a. 317, pl. 1. But where the debt has really been reduced by payments under 40s., it may be recovered in this court. Com. Dig. County C. 8. See 1 B. & P. 223, 224. No capias against the person can issue out of this court, (Com. Dig. County C. 9;) and therefore if the defendant has no goods the plaintiff is without remedy there; but an action may at common law be brought in the superior courts on a judgment obtained in the county-court, and thus, ultimately, execution against the person may be obtained. Greenwood on Courts, 22. Finch, 318. F. N. B. 152.—Chitty.
[(z) ] 4 Inst. 266.
[(a) ] 6 Edw. I. c. 8.
[(b) ] 2 Inst. 391. 3 T. R. 363. Bac. Abr. Court of King’s Bench, A. 2.
[5 ] And in any of the superior courts, when the debt sued for appears on the face of the declaration, (3 Burr. 1592,) or is admitted by the plaintiff or his attorney, (2 Bla. Rep. 754,) or proved by an affidavit of the defendant, (4 T. R. 495. 5 id. 64. Tidd. Prac. 8 ed. 565,) to be under 40s., and the plaintiff may recover it in an inferior jurisdiction, they will stay the proceedings, it being below their dignity to proceed in such action. But the plaintiff may by affidavit show that the debt exceeds 40s., or that the defendant resided out of the jurisdiction, which will retain the cause in the superior court. 6 T. R. 175. 8 T. R. 235. 1 B. & P. 75. 1 Dowl. & R. 359.—Chitty.
[(c) ] Finch, 318. F. N. B. 152.
[(d) ]Gloss v. comitatus.
[(e) ] C. 11.
[(f) ]LL. Eadgari, c. 5.
[(g) ] F. N. B. 70. Finch, 445.
[6 ] The new county-courts, so called in contradistinction to the county-courts before mentioned, were established by the statute 9 & 10 Vict. c. 95. They at first possessed jurisdiction only for the recovery of debts, damages, and demands, legacies and balances of partnership accounts, where the sum sued for did not exceed 20l. They were also charged with the power of giving a landlord possession of premises where the tenant’s term had determined or he had received proper notice to quit, in cases in which the rent did not exceed 50l. annually and no fine had to be paid. By the statute 13 & 14 Vict. c. 61, their jurisdiction was extended to actions where the amount sued for did not exceed 50l., and, if the litigants consented in writing, to actions for any amount whatever. By this statute an appeal was also given against the decision of the judge on matter of law, but only in actions for sums above 20l. No appeal lies from his decision in matters of fact. The other statutes relating to this branch of the jurisdiction of these courts are the 12 & 13 Vict. c. 101, and 15 & 16 Vict. c. 54. They have no jurisdiction, it may be observed, unless the parties expressly consent in writing to that effect, in actions in which the title to corporeal or incorporeal hereditaments, or to any toll or franchise, or in which the validity of any devise or bequest under a will or settlement, may come in question. Actions brought for a malicious prosecution, for libel or slander, criminal conversation, or seduction, or breach of promise of marriage, are expressly excluded.
The judges must be barristers of seven years’ standing. The judge decides all questions as well of fact as of law, unless one or other of the parties to the action has demanded a jury for the trial of matters of fact,—which in actions for sums above 5l. may be obtained as of right, and consists of five jurors summoned from the district where the court is holden.
The court is a court of record. It is held once a month. And, to encourage parties to resort to this tribunal, the plaintiff in the superior courts (in suits in which they have concurrent jurisdiction) does not recover his costs in actions of contract where he recovers no more than 20l., and in actions of tort where he recovers no more than 5l., unless the judge of the superior court who tries the cause certifies for costs, or it appears to the court that there was sufficient reason for bringing the action in the superior court.—Stewart.
[(h) ]L. 3, tr. 1, c. 7.
[(i) ] Spelm. Gloss. 331, 332, 333. Gilb. Hist. C. P. introd. 17.
[(j) ] See book i. introd. 1.
[(k) ] Mod. Un. Hist. xxiii. 396.
[(l) ] Ibid. xxix. 46.
[(m) ] 4 Inst. 99.
[7 ] The jurisdiction of each court is so well established that at this day the court of King’s Bench cannot be authorized to determine a mere real action, so neither can the court of Common Pleas to inquire of felony or treason. Hawk. b. 2, ch. 1, s. 4. Bac. Abr. Courts, A. The King’s Bench however, tries titles to land by the action of ejectment.—Chitty.
[(n) ] King James I. during the greater part of his reign appointed five judges in the courts of King’s Bench and Common Pleas, for the benefit of a casting voice in case of a difference in opinion, and that the circuits might at all times be fully supplied with judges of the superior courts. And in subsequent reigns, upon the permanent indisposition of a judge, a fifth hath been sometimes appointed. Sir T. Raym. 475.
[8 ] The court now consists of five judges, one chief and four puisnè justices. Until the statute 11 Geo. IV. and 1 W. IV. c. 70, an appeal lay from the judgment of this court to the court of King’s Bench; but now the appeal for error in law is to the justices of the court of Queen’s Bench and barons of the exchequer, in the exchequer-chamber, from whose judgment an appeal lies only to the house of lords.—Stewart.
[(o) ] 4 Inst. 73.
[9 ] This court is called the Queen’s Bench in the reign of a queen; and during the protectorate of Cromwell it was styled the upper bench.—Christian.
[(p) ] See book i. ch. 7. The king used to decide causes in person in the aula regia. “In curia domini regis ipse in propria persona jura decernit.” Dial. de Scacch. l. 1, 4. After its dissolution king Edward I. frequently sat in the court of King’s Bench, (see the records cited in 2 Burr. 851;) and in later times James I. is said to have sat there in person, but was informed by his judges that he could not deliver an opinion.
[(q) ] 4 Inst. 71.
[10 ] Lord Mansfield, in 2 Burr. 851, does not mean to say, nor do the records there cited warrant the conclusion, that Edward I. actually sat in the King’s Bench. Dr. Henry, in his very accurate History of Great Britain, informs us that he has found no instance of any of our kings sitting in the court of justice before Edward IV. “And Edward IV.,” he says, “in the second year of his reign, sat three days together during Michaelmas Term in the court of King’s Bench; but it is not said that he interfered in the business of the court; and, as he was then a very young man, it is probable that it was his intention to learn in what manner justice was administered, rather than to act the part of a judge.” 5 vol. 282, 4to edit. Lord Coke says that the words in magna carta, (c. 29,) nec super eum ibimus nec super eum mittemus nisi, &c., signify that we shall not sit in judgment ourselves, nor send our commissioners or judges to try him. 2 Inst. 46. But that this is an erroneous construction of these words appears from a charter granted by king John in the sixteenth year of his reign, which is thus expressed:—Nec super eos per vim vel per arma ibimus nisi per legem regni nostri vel per judicium parium suorum. See Introd. to Bl. Mag. Ch. p. 13. Statutes and charters in pari materiâ must be construed by a reference to each other; and in the more ancient charter the meaning is clear that the king will not proceed with violence against his subjects unless justified by the law of his kingdom or by a judgment of their peers.—Christian.
[(r) ] M. 20. 21 Edw. I. Hale, Hist. C. L. 200.
[(s) ]L. 3, c. 10.
[(t) ] 28 Edw. I. c. 5.
[(u) ] Finch, L. 198. 2 Inst. 23. Dyversité de courtes c. bank le roy.
[(w) ] F. N. B. 86, 92. 1 Lilly, Pract. Reg. 503.
[(x) ] 4 Inst. 76. Trye’s Jus Filizar. 101.
[11 ] This is not the present practice. R. T. Hardw. 317. Tidd’s Prac. 8 ed. 97.—Chitty.
[(y) ] Carth. 234.
[(z) ] 4 Inst. 71.
[(a) ] Ibid. 72.
[(b) ] Thus too in the civil law; contra fictionem non admittitur probatio: quid enim efficeret probatio veritatis, ubi fictio adversus veritatem fingit. Nam fictio nihil aliud est, quam legis adversus veritatem in re possibili ex justa causa dispositio. Gothofred. in Ff. l. 22, t. 3.
[(c) ] 3 Rep. 30. 2 Roll. Rep. 502.
[(d) ] 11 Rep. 51. Co. Litt. 150.
[12 ] But, as there is no reason for doing that indirectly which may be done directly, it was considered expedient to abolish this among other legal fictions, (2 W. IV. c. 39,) and the mode of commencing an action has for some time been and is now, uniform in all the superior courts.—Stewart.
[13 ] The appeal from the King’s or Queen’s Bench is now in all cases to the justices of the Common Pleas and barons of the exchequer, in the exchequer-chamber, from whose judgment an appeal lies to the house of lords.—Stewart.
[(e) ] Lamb. Archeion. 24.
[(f) ] Madox Hist. Exch. 109.
[(g) ] Spelm. Guil I. in cod. leg. vet. apud Wilkins.
[(h) ] 4 Inst. 103-116.
[14 ] Though this court is inferior in rank as well to the court of Common Pleas as the King’s Bench, and though, in general, a subject has a right to resort to either of the superior courts for the redress of a civil injury, yet this court, having an original, and in many cases an exclusive, jurisdiction in fiscal matters, will not permit questions, in the decision of which the king’s revenue or his officers are interested, to be discussed before any other tribunal; and therefore, if an action of trespass against a revenue-officer for his conduct in the execution of his office be brought in the court of Common Pleas or King’s Bench, it may be removed into the office of pleas of this court of exchequer. 1 Anstr. 205. Hardr. 176. Parker, 143. 1 Price, 206. 8 Price, 584. Manning’s Exchequer Prac. 161, 164, n. On such occasions the court interposes on motion, by ordering the proceeding to be removed into the office of pleas, which order operates by way of injunction. The usual order in cases of this nature is that the action be removed out of the King’s Bench or Common Pleas, or other court in which it is depending, into the office of pleas, and that it shall be there in the same forwardness as in the court out of which the action is removed. This order, however, does not operate as a certiorari to remove the proceedings, but as a personal order on the party to stay them there, and, of course, calls on the defendant in the action to appear, accept a declaration, and put the plaintiff in the same state of forwardness in the office of pleas as he was in the other court. Per Eyre, Ch. B. 1 Anstr. 205, in notes.—Chitty.
[(i) ] Tit. Hon. 2, 5, 16.
[(k) ]L. 3, tr. 2, c. 1, 3.
[(l) ] 10 Edw. I. c. 11.
[(m) ] 28 Edw. I. c. 4.
[15 ] This fiction has been for some time abolished. 2 W. IV. c. 39.—Stewart.
[16 ] By the 31 Edward III. c. 12, this court of appeal is to consist of the chancellor and treasurer, and such justices and sage persons as they shall think fit. It is altered by 31 Eliz. c. 1, 16 Car. II. c. 2, 20 Car. II. c. 4, from which it appears that the court may consist of both the chief justices, or one of them, or of the chancellor, provided the chancellor is present when the judgment is given. See the proceedings in the case of Johnstone vs. Sutton in this court. 1 T. R. 493.—Chitty.
But by statute 5 Vict. c. 5 its jurisdiction as a court of equity was transferred to the court of chancery; and it is now only a court of law and revenue, with five judges,—a chief and four puisnè barons,—like the courts of Queen’s Bench and Common Pleas. From the judgment of this court an appeal lies to the justices of the Queen’s Bench and Common Pleas, sitting as the court of exchequer chamber; and from that court an appeal lies to the house of lords.—Kerr.
[(n) ] 4 Inst. 88.
[17 ] According to the opinion of several learned authors, (as Mr. Cambden, in his Britannia, and Dr. Cowell, in his Interpreter, have observed,) the chancery had its name originally from certain bars laid one over another crosswise, like a lattice, wherewith it was environed to keep off the press of the people, and not to hinder the view of those officers who sat therein,—such gates or crossbars being by the Latins called cancells. Vid. Dugd. 32. Cambden, Cowell, Cassiod. ep. 6, lib. 11. Pet. Pythæus, lib. 2, advers. c. 12. 1 Harr. Ch. 1. Dr. Johnson seems also inclined to this definition; and it indeed appears the most reasonable, for we have also the word “chancel,” which signifies that part of the church formerly barred off from the body of it.—Chitty.
[18 ] King Henry V. had two great seals, one of gold, which he delivered to the bishop of Durham and made him lord chancellor, another of silver, which he delivered to the bishop of London to keep; and historians often confound chancellors and keepers, (1 Harr. Ch. 68, note. 4 Inst. 88;) but at this day, there being but one great seal, there cannot be both a chancellor and a lord keeper of the great seal at one time, because both are but one office, as is declared by the stat. 5 Eliz. 4 Inst. 88, and the taking away the seal determines the office. 1 Sid. 338. It seems that it is not inconsistent for the lord chancellor also to hold the office of chief justice of the King’s Bench. Lord Hardwicke held both offices from 20th February till 7th June. 1 Sid. 338. Com. Dig. tit. Chancery, (B. 1.)—Chitty.
[(o) ] Lamb. Archeion. 65. 1 Roll. Abr. 385.
[(p) ] Stat. 31 Hen. VIII. c. 10.
[(q) ] Selden, Office of Lord Chanc. 3.
[(r) ] Of the office of lord chancellor, edit. 1651.
[(s) ] Madox, Hist. of Exch. 42.
[(t) ] 38 Edw. III. 3 F. N. B. 35, though Hobart (214) extends this value to twenty pounds.
[19 ] With regard to the chancellor’s patronage there seems to be some inaccuracy in the learned judge’s text and references. I humbly conceive that a truer statement is this,—viz., that it appears from the rolls of parliament in the time of Edward III. that it had been the usage before that time for the chancellors to give all the king’s livings taxed (by the subsidy assessments) at twenty marks or under, to the clerks, who were then actually cleri or clergymen, who had long laboured in the court of chancery; but that the bishop of Lincoln, when he was chancellor, had given such livings to his own and other clerks, contrary to the pleasure of the king and the ancient usage; and therefore it is recommended to the king by the council to command the chancellor to give such livings only to the clerks of chancery, the exchequer, and the other two benches or courts of Westminster hall. 4 Edw. III. n. 51. But since the new valuation of benefices, or the king’s books, in the time of Henry the Eighth, and the clerks ceased to be in orders, the chancellor has had the absolute disposal of all the king’s livings, even where the presentation devolves to the crown by lapse, of the value of twenty pounds a year or under in the king’s books. It does not appear how this enlarged patronage has been obtained by the chancellor; but it is probably by a private grant of the crown, from a consideration that the twenty marks in the time of Edward III. were equivalent to twenty pounds in the time of Henry VIII. Gibs. 764. 1 Burn, Ec. Law, 129.
So far this was the note in my first edition; but a reverend gentleman has been so obliging as to suggest to me that, having once had occasion to examine the subject, he was inclined to think that the chancellor’s patronage was confined to benefices under 20l. a year, and that livings exactly of that value belonged to the king, to be presented to by himself or his minister. Having, in consequence, looked more attentively into the subject, I am still of opinion that the authorities support what is advanced in the preceding part of the note. It cannot be doubted that since the new valor beneficiorum, pounds were intended to be substituted for marks, and this is expressly stated by bishop Gibson, p. 764. In the 4 Edw. III., cited above, the chancellor’s patronage is stated to be of all livings of 20 marks and under, del tax de vint marces et dedeyns. In the 1 Hen. VI. note 25, Rolls of Parliament, there is a record appointing the duke of Bedford protector, and the duke of Gloucestor protector in his absence; and amongst other privileges it grants the protector, for the time-being, the patronage of all the livings belonging to the crown, ultra taxam viginti marcarum usque ad taxam triginta marcarum inclusivè, and reserves the rest of the royal patronage to the king, except the benefices belonging to the chancellor, virtute officii sui. The word inclusivè can only apply to the words usque ad triginta; it cannot be reconciled with ultra, which was intended to leave the chancellor 20 or under. This is also clearly expressed in the Registrum Brevium 307, where there is an ancient writ called de primo beneficio ecclesiastico habendo. Volumus quod idem A. ad primum beneficium ecclesiasticum (taxationem viginti marcarum excedens) vacaturum, quod ad præsentionem nostram pertinuerit, &c.
In the year-book, 38 Edw. III. 3, it is laid down as law that the king shall present to toutz esglises que passent l’extent de 20 marcs; and in the next line it is said that the chancellor shall present to all not taxed at 20 marks, and having understood that the living in question was taxed at 40s. he had presented to it, but as, in fact, it was taxed at 40l., the king claimed it. The words in French state the general law; the rest only apply to the particular case. Yet Watson is so careless as to state the chancellor’s patronage to be under 20 marks and under 20l., and refers to this authority, ch. 9. But it is correctly cited by Comyns to support the position that the chancellor has the patronage of 20 marks or 20l. Dig. tit. Esgl. H. 5. In Fitz. N. B. 35 it is stated to be under 20 marks, without taking any notice of 20 exactly. And in a case in Hob. 214 the word is under. In that case the chancellor had presented to a living lapsed to the crown above 20l. a year, and it was held that the king could have no remedy, because the presentation had passed the great seal, and therefore apparently made by the king himself; but if the presentation had stated that the benefice was under the value of 20l., then it would have been void, because the chancellor must have been deceived. In this case there was no occasion to state the instance of a living of the exact value of 20l. This was a benefice which had devolved to the crown by lapse; but no objection is made on that ground, and there seems to be no reason for any distinction, whether the benefice devolves to the king by lapse or by promotion of the incumbent, or it is part of his original patronage. I have stated the authorities which expressly give the chancellor the patronage of the value of 20 marks, or now 20l., and I have referred to those which state it to be under; and, I cannot but observe, so far they are all consistent, as I find no authority in opposition to those above, declaring that livings of the value of 20l. belong to the king and not to the chancellor.
The gentleman who wished me to examine the authorities upon this subject was so obliging as to inform me that the crown has the patronage of five livings of the exact value of 20l. in the king’s books, but that several others of that value occasionally devolve to the crown by lapse and promotion: that he has examined the church-book in the secretary of state’s office, and that he finds within the last century many instances of presentations to those livings by the crown; but he admits in some modern instances where the right to the presentation has been claimed both by the chancellor and the minister, that the latter has yielded to the former. From the whole, one is led to conclude that these presentations made by the crown were owing either to the inattention or the accommodation of the chancellor.—Christian.
[(u) ] 4 Rep. 54.
[(v) ] 4 Inst. 90.
[(w) ] Co. Litt. 171. F. N. B. 62.
[(x) ] Bro. Abr. tit. Dower, 66. Moor. 565.
[(y) ] Bro. Abr. tit. Dismes, 10.
[(z) ] 2 Roll. Abr. 469.
[(a) ] Cro. Jac. 12. Latch. 112.
[20 ] But on the equity side of the court questions of fact may be decided without an issue; but this jurisdiction ought to be exercised very tenderly and sparingly. 9 Vesey, 168. On the trial of an issue directed out of chancery, if either party be desirous of having a special jury, it is said to be proper to move the court of chancery for that purpose. See Prec. Ch. 264. 2 P. Wms. 68. 4 M. & S. 195, 196.—Chitty.
It is important to confine this observation (which is not always done) to the common-law side of the court of chancery. Sitting as a judge at common law and trying causes according to the rules of the common law, the lord chancellor cannot decide by himself a disputed fact, and has no power of issuing process to the sheriff or other officer for summoning a jury. But on the equity side of the court, where the jurisdiction of the lord chancellor is placed entirely on other grounds than those of the common law, he is equally competent to decide on disputed facts as on disputed law; and it is matter of discretion only when he either orders or permits the parties to submit the trial of such fact to the cognizance of a jury. For the manner in which this is done, see post, 452. According to the later precedents, when a record comes into the King’s Bench from chancery, the chancellor does not deliver it propria manu, but sends it by the clerk of the petty bag. 1 Eq. Ca. Abr. 128.—Coleridge.
And now, by 12 & 13 Vict. c. 109, any issue, either of fact or law, must be sent to one of the three superior courts of law, there to be determined according to the ordinary course of proceeding in those courts.—Stewart.
[(b) ] Year-book, 18 Edw. III 25. 17 Ass. 24. 29 Ass. 47. Dyer, 315. 1 Roll. Rep. 287. 4 Inst. 80.
[(c) ] The opinion of lord-keeper North, in 1682, (1 Vern. 131. 1 Eq. Ca. Abr. 129,) that no such writ of error lay, and that an injunction might be issued against it, seems not to have been well considered.
[(d) ] The Council of Conscience, instituted by John III. king of Portugal, to review the sentence of all inferior courts and moderate them by equity, (Mod. Un. Hist. xxii. 237,) seems rather to have been a court of appeal.
[(e) ] Thus too the parliament of Paris, the court of session in Scotland, and every other jurisdiction in Europe of which we have any tolerable account, found all their decisions as well upon principles of equity as those of positive law. Lord kaimes’s Histor. Law Tracts, i. 325, 330; Princ. of Equity, 44.
[(f) ] Thus Cicero: “jam illis promissis, non esse standum, quis non videt, quæ coactus quis metu et deceptus dolo promiserit? quæ quidem plerumque jure prætorio liberantur, nonnulla legibus.” Offic. l. i.
[(g) ]L. 2, c. 7, fol. 23.
[(h) ] The matters cognizable in this court, immediately before its dissolution, were “almost all suits that, by colour of equity, or supplication made to the prince, might be brought before him; but originally and properly all poor men’s suits, which were made to his majesty by supplication, and upon which they were entitled to have right, without payment of any money for the same.” Smith’s Commonwealth, b. 3, c. 7.
[(i) ]Nemo ad regem appellet pro [Editor: illegible word] [Editor: illegible word] nisi jus domi consequi non possit. Si jus nimis severum sit, alleviatio deinde quæratur apud regem. LL. Edg. c. 2.
[(k) ] Lambard. Archeion. 59.
[(l) ] Joannes Sarisburiensis, (who died ad 1182, 26 Hen. II.,) speaking of the chancellor’s office in the verses prefixed to his polycraticon, has these lines:—
[(m) ] A great variety of new precedents of writs, in cases before unprovided for, are given by this very statute of Westm. 2.
[(n) ] Lamb. Archeion. 61.
[(o) ] This was the opinion of Fairfax, a very learned judge in the time of Edward the Fourth. “Le subpœna (says he) ne serroit my cy soventement use come il est ore, si nous attendomus tiels actions sur les cases, et mainteinomus le jurisdiction de ceo court, et d’auter courts.” Year-book, 21 Edw. IV 23.
[(p) ] See book ii. ch 20.
[(q) ] Spelm. Gloss. 106. 1 Lev. 242.
[(r) ] Lord Lyttelt. Hen. II. b. iii. p. 361, note.
[(s) ] 10 Hen. II. c. 15. Speed. 458.
[(t) ] In 4 Hen. III., suits in court Christian pro læsione fidei upon temporal contracts were adjudged to be contrary to law. Fitz. Abr. tit. Prohibition. 15. But in the statute or writ of circumspecte agatis, supposed by some to have issued 13 Edw. I., but more probably (3 Pryn. Rec. 336) 9 Edw. II., suits pro lœsiene fidei were allowed to the ecclesiastical courts; according to some ancient copies, (Berthelet stat antiq Lond. 1531, 90, b. 3 Pryn. Rec. 336,) and the common English translation of that statute; though in Lyndewode’s copy (Prov. l. 2, t. 2) and in the Cotton MS. (Claud. D. 2) that clause is omitted.
[(u) ] Year-book. 2 Hen. IV. 10. 11 Hen. IV. 88. 38 Hen. VI. 29. 20 Edw. IV. 10.
[(w) ]Rot. Parl. 4 Hen. IV. No 78 and 110. 3 Hen. V. No 46, cited in Prynne’s Abr. of Cotton’s Records, 410, 422, 424, 548. 4 Inst. 83. 1 Roll Abr. 370, 371, 372.
[(x) ]Rot. Parl. 14 Edw. IV. No 33, (not 14 Edw. III.) as cited 1 Roll. Abr. 370, &c.
[(y) ] Tit. Chancery, fol. 296. Rastell’s edit. ad 1534.
[(z) ] Spelm. Gloss. 111. Dugd. Chron. Ser. 50.
[(a) ] W[Editor: illegible character]othesly, St. John, and Hatton.
[(b) ] Goodrick, Gardiner, and Heath.
[(c) ] Biog. Brit. 4278.
[(d) ] Bacon’s Works, iv. 611, 612, 682.
[(e) ] Whitelocke of Parl. ii. 390. 1 Chanc. Rep. Append. 11.
[(f) ] “For that it appertaineth to our princely office only to judge over all judges, and to discern and determine such differences as at any time may and shall arise between our several courts touching their jurisdiction, and the same to settle and determine as we in our princely wisdom shall find to stand most with our honour,” &c. 1 Chanc. Rep. Append. 26.
[(g) ] See the entry in the council-book, 26 July, 1616. Biog. Brit. 1390.
[(h) ] In a cause of the bishop of Winchester, touching a commendam, king James, conceiving that the matter affected his prerogative, sent letters to the judges not to proceed in it till himself had been first consulted. The twelve judges joined in a memorial to his majesty, declaring that their compliance would be contrary to their oaths and the law; but, upon being brought before the king and council, they all retracted and promised obedience in every such case for the future, except Sir Edward Coke, who said “that, when the case happened, he would do his duty.” Biog. Brit. 1388.
[(i) ] See that article in ch. 6.
[(k) ] See lord Ellesmere’s speech to Sir Henry Montague, the new chief justice, 15 Nov. 1616, Moor’s Reports, 828. Though Sir Edward might probably have retained his seat. if, during his suspension, he would have complimented lord Villiers (the new favourite) with the disposal of the most lucrative office in his court. Biog. Brit. 1391.
[21 ] Besides the chancellor, the master of the rolls has jurisdiction of judging causes on the extraordinary side of the court of chancery. Cardinal Wolsey was, it is said, the first who introduced this power, though then much objected to; yet now it seems he is authorized by special commission under the great seal. Wyatt, Prac. Reg. 278. Com. Dig. Chancery, B. 4. The time and place of his sitting are usually at six o’clock in the evening at his own court in the rolls yard. All decrees made by him must be signed by the lord chancellor before they are enrolled. 3 Geo. II. c. 30, s. 1. By statute 23 Geo. II. c. 25, s. 6, a yearly sum of 1200l. was granted to him; and by the late act 6 Geo. IV. c. 84 his salary is raised to 7000l. He holds his office by patent for life, and takes the oath prescribed by 18 Edw. III. in open court. Wyatt, Prac. Reg. 277. He takes precedence next after the chancellor, before all other of the judges.
Owing to the great increase of business, and which is still increasing, it was provided, by the 53 Geo. III. c. 24, that his majesty might appoint an additional judge-assistant, called the vice-chancellor, to assist the chancellor, who must be a barrister of fifteen years’ standing, to hold his office during good behaviour, subject to removal upon the address of both houses. By sect. 2, he shall hear such cases as the chancellor shall direct. His decrees shall be subject to reversal by the chancellor, and must be signed by the latter before they are enrolled. By sect. 3, he cannot alter or vary a decree of chancellor or master of rolls. Sect. 4 directs in what court he shall sit; and he is to rank next after the master of rolls. Sect. 5 appoints his officers. Sect. 6, how he is to be removed. Sect. 7, oath of office. Sect. 8, his salary, (5000l., increased by 6 Geo. IV. c. 84 to 6000l.) Sect. 12, that he and his officers shall receive no fees for business done. Query, Whether the vice-chancellor has power to hear, by consent, a motion to discharge or alter an order made by the lord chancellor? See 1 J. & W. 429. If he is authorized to discharge it, he is not to alter it. Id. ib. When sitting for the lord chancellor, he has no jurisdiction to alter or discharge orders made by the chancellor. Id. 431.
Besides the master of the rolls, (the chief,) there are eleven other masters in chancery. Com. Dig. Chancery, B. 5. All answers and affidavits are sworn before one of them and signed; all matters of account, exceptions to answers, &c., irregularities, contempts, and such like, are referred to them. 13 Car. II. st. 6. 12 Geo. I. c. 32. 5 Geo. III. c. 28. 32 Geo. III. c. 42. 9 Geo. III. c. 19. 46 Geo. III. c. 128. Besides these, there are masters extraordinary, appointed in the country to take affidavits, &c. Next in precedence are the six clerks, each of whom has ten sworn clerks under him. The six clerks are principally concerned in matters in equity, and it is their business to transact and file all proceedings by bill and answer, and also to issue certain patents which pass the great seal, as pardons of men for chance medley, patents for ambassadors, sheriff’s patents, and some others. All these matters are transacted by their under-clerks. 1 Harr. Ch. P. 75. Though formerly otherwise, clients are now at liberty to choose their own clerks. Ord. Ch. 107. They claim, besides fees of six clerks’ offices, others as comptrollers of the hanaper, and for enrolling warrants, for patents, grants, and other matters passing under the great seal and returned into hanaper office. Six clerks and three clerks of petty bag are by letters-patent (16 Eliz.) incorporated and styled clerks of the enrolment of the high court of chancery, and have two deputies. See 14 & 15 Hen. VIII. c. 8.
The office of registrar of this court is of great importance. Com. Dig. Chancery, B. 6. The registrar has four deputies, two of whom always sit in court and take notes of orders and decrees, &c.; and before the same are entered he signs them. 45 Geo. III. c. 75. Besides these, there are the master of the subpœna office, registrar of affidavits, examiners, ushers, accountant-general, (12 Geo. l. c. 32. 12 Geo. II. c. 24. 9 Geo. III. c. 19. 32 Geo. III. c. 42. 46 Geo. III. c. 129. 54 Geo. III. c. 14,) cursitors, clerks of the petty-bag office, serjeant-at-arms, warden of the fleet, clerk of the chapel of the rolls, &c.—Chitty.
The master of the rolls has long administered justice according to the rules of equity, in a separate court. He is appointed by letters-patent, and was formerly the chief merely of the masters in chancery, who carried out the decrees and performed the ministerial functions of the courts of equity. A recent statute (15 & 16 Vict. c. 80) has provided, however, for the gradual abolition of the masters in chancery and the transference of their functions, under an amended procedure, to the judges and their chief clerks. The jurisdiction of the master of the rolls is regulated by the statute 3 Geo. II. c. 30, by which all decrees and orders made by him, except in matters of bankruptcy and lunacy, which when this statute was passed were appropriated exclusively to the lord chancellor, are to be valid, subject, however, to their being discharged or altered on appeal to the lord chancellor. His jurisdiction is extended by the 3 & 4 W. IV. c. 94; and an appeal now lies from his judgment to the lord chancellor, or to the court of appeal in chancery. The master of the rolls is, by 1 & 2 Vict. c. 94, the custodier of the public records.
In 1813, an additional judge in chancery, or vice-chancellor, was created, with power to hear and determine all matters depending in the court of chancery, according to the direction of the lord chancellor. This additional assistance was soon found insufficient to keep under the business which flowed into this court; and in 1832 it was relieved from the jurisdiction in bankruptcy, which it had previously exercised, and which was then transferred to the courts of bankruptcy, an appeal, however, being still open to one of the vice-chancellors appointed to sit in bankruptcy. But this appeal must now be made to the court of appeal in chancery. It was still, however, generally admitted that the court of chancery was inadequate to relieve the crowd of suitors who awaited its judgments, and an increase of judges was loudly called for. Accordingly, when the equity jurisdiction of the court of exchequer was transferred to the court of chancery in 1841, two additional vice-chancellors were appointed, (5 Vict. c. 5;) and a third vice-chancellor’s court has since been created. 14 & 15 Vict. c. 4. 15 & 16 Vict. c. 80. These judges are to hear and determine all matters depending in the court of chancery,—either as a court of law or equity,—or which have been or shall be submitted to the jurisdiction of the said court or of the lord chancellor by the special authority of any act of parliament.
There is an appeal from the judgment of any of the vice-chancellors. either to the lord chancellor or to the court of appeal in chancery.
The court of appeal in chancery was created by the stat. 14 & 15 Vict. c. 83. It consists of two lords-justices, appointed by letters-patent, with whom the lord chancellor sometimes sits to form a full court, but who, with or without the lord chancellor, exercise all the jurisdiction in equity possessed by him, without prejudice to his sitting alone and exercising such jurisdiction alone as formerly. This court may consist of the lord chancellor and the two lords-justices, or of the chancellor and one of such judges, or of the two lords-justices sitting together. The appeal in bankruptcy, formerly to one of the vice-chancellors, is now to the two lords-justices, who, together and exclusive of the lord chancellor, constitute the court of appeal in bankruptcy, whose judgment in such cases is final. An appeal from any judgment or order of the master of the rolls or any of the vice-chancellors lies to this court or to the lord chancellor.
From these courts of equity in chancery, as from the other superior courts, an appeal lies to the house of peers.—Stewart.
[(l) ] See ch. xxv. p. 411.
[22 ] By the stat. 11 Geo. IV. and 1 W. IV. c. 70, these courts have been abolished, and the court of exchequer chamber, as it now exists, constituted in their place. Error brought upon (that is to say, an appeal presented against) any judgment given by the courts of Queen’s Bench, Common Pleas, or Exchequer is to be heard and determined only by the judges—or judges and barons, as the case may be—of the other two courts in the exchequer chamber, from the judgment of which court no error lies except to the house of lords.—Stewart.
[(m) ] 4 Inst. 119. 2 Bulst. 146.
[23 ] It is to be observed that it is not now the practice of the whole body of the house of peers to attend to its judicial business. This is usually transacted entirely by the lord chancellor, or other peers who have filled judicial stations. Deputy speakers of the legal profession not members of the body have been appointed at various times to preside in the absence of the lord chancellor. The attendance of three other lay peers during these sessions of the house is a matter of form settled by rotation: but the lay peers, although thus present, properly abstain from voting on judicial matters,—the arguments on which it would be unreasonable to suppose that they can perfectly understand, and to which they have not always entirely attended. The propriety of their so abstaining has been recently recognised in a case of great importance,—O’Connell vs. The Queen, 11 C. & F. 421. The appellate jurisdiction of the house of lords must, however, be admitted to be in an unsettled and unsatisfactory state. 1 Stewart’s Blackst. 9.
“There can be no doubt,” says Mr. Lewis, “that, both recently and of old, well-founded complaints have been heard of defects in the constitution of the upper house as the final court of appeal and error. The paucity of its legal members, the absence of any constitutional obligation upon their legal members (excepting the chancellor) to attend the transaction of the judicial business, the irregularity of attendance which the engrossing avocations of those who hold judicial office elsewhere renders in their case unavoidable, the advanced years to which most have in general attained who by success in forensic life reach the peerage,—these various circumstances have led to a want of confidence in the constitution of this high court, and a feeling of uncertainty in its administration of justice, which has occasionally been justified by the spectacle of one peer sitting in error from the judgment of a court composed of a plurality of judges; or, again, the decision of judges specially versed and accomplished, it may be, in the branch of jurisprudence involved, reviewed by a peer or peers having no such experience and endowed with no such special knowledge; or, again, two peers only attending and differing,—the one agreeing in and the other dissenting from the decision under review, and thus in effect nullifying the suitor’s right to a decision by leaving the case precisely where it was; or, lastly, (and which is perhaps more to be regretted than all,) a single legal peer sitting alone in one character to adjudicate upon a complaint against the decision already pronounced by him in another.” Papers of Juridical Society, vol. i. p. 142. With the view of strengthening the judicial staff in the house of peers, baron Parke was recently made a peer for life only, with the title of lord Wensleydale, the object being that hereafter eminent lawyers may be introduced into the highest court without involving any permanent addition to the hereditary peerage or to the aristocratic section of the legislature, and without entailing the burden of a hereditary title when there may not be adequate means of supporting it. Great dissatisfaction having been expressed at this movement, as tending to subject the house of peers to the influence and power of the crown and to injuriously affect the balance of the constitution, a patent has been since issued to lord Wensleydale in the usual form.
In New York and New Jersey, and some other States, the plan of investing the Senate or the more permanent branch of the legislature with the functions of a high court of errors and appeals has been fairly tried, and, after an experience of many years in the two States named, has been abandoned. To subject the decisions of lawyers to be reversed in the highest courts by the votes of laymen was found to be productive of confusion and uncertainty, and consequent insecurity to titles and property,—than which a greater evil cannot afflict any community.—Sharswood.
[24 ] The courts of Nisi Prius in London and Middlesex are called sittings. Those for Middlesex were established by the legislature in the reign of queen Elizabeth. In ancient times all issues in actions brought in that county were tried at Westminster in the terms, at the bar of the court in which the action was instituted; but when the business of the courts increased these trials were found so great an inconvenience that it was enacted, by the 18 Eliz. c. 12, that the chief-justice of the King’s Bench should be empowered to try within the term, or within four days after the end of the term, all the issues joined in the court of chancery and King’s Bench; and that the chief-justice of the Common Pleas and the chief-baron should try in like manner the issues joined in their respective courts. In the absence of any one of the chiefs, the same authority was given to two of the judges or barons of his court. The statute 12 Geo. I. c. 31 extended the time to eight days after term, and empowered one judge or baron to sit in the absence of the chief. The 21 Geo. II. c. 18 has extended the time after term still further to fourteen days.—Christian.
And the time was afterwards, and still continues, unlimited during the vacation next after the term, by the 1 Geo. IV. c. 55. Before the passing of the 1 Geo. IV. c. 21, the nisi prius sittings in Middlesex were confined to Westminster hall; but by that act they may be held at any other fit place within the city of Westminster.—Chitty.
[(n) ] Seld. Jan. l. 2, 5. Spelm. Cod. 399.
[(o) ] Co. Litt. 293.—Anno 1261, justiciarii itinerantes venerunt apud Wigorniam in octavis S. Johannes Baptistæ;—et totus comitatus eos admittere recusavit, quod septem anni nondum erant elapsi, postquam justiciarii ilndem ultimosederunt. Annal. Eccl. Wigorn, in Whart. Angl. Sacr. i. 495.
[(p) ] Bract. l. 3, tr. 1, c. 11.
[25 ] And now, by 1 Geo. IV. c. 55, s. 5, any judge or baron may, on his circuit, amend a record and make any order in any cause, although it was not in a suit depending in his own court.—Chitty.
[(q) ] Instances hereof may be met with in the appendix to Spelman’s original of the terms, and in Mr. Parker’s Antiquities, 209.
[(r) ] Stat. 4 Edw. III. c. 2. 8 Ric. II. c. 2. 33 Hen. VIII. c. 24.
[26 ] This restriction was construed to extend to every commission of the judges; but, it being found very inconvenient, the 12 Geo. II. c. 27 was enacted for the express purpose of authorizing the commissioners of oyer and terminer and of gaol-delivery to execute their commissions in the criminal courts within the counties in which they were born or in which they reside. See 4 book, 271. This restriction as to commissioners of assize and nisi prius was taken off by the 49 Geo. III. c. 91.—Chitty.
[(s) ]Ff. 1, 22, 3.
[(t) ] C. 9, 29, 4.
[(u) ] Salk. 454.
[27 ] An important act, the 3 Geo. IV. c. 10, was lately passed to remedy the defect of the commission not being opened on the day appointed; by which it is enacted that the commission may be opened on the succeeding day to the one appointed; and if such succeeding day be a Sunday, or any other day of public rest, then on the next following day, provided the opening the commission on the appointed day was prevented by the pressure of business elsewhere, or by some unforeseen cause or accident.—Chitty.
[(w) ] See ch. xxii. p. 353.