PRIVATE WRONGS.
BOOK III.

CHAPTER THE FOURTH.
OF THE PUBLIC COURTS OF COMMON
LAW AND EQUITY.

WE are next to confider the feveral fpecies and diftinctions of courts of juftice, which are acknowleged and ufed in this kingdom. And thefe are either fuch as are of public and general jurifdiction throughout the whole realm; or fuch as are only of a private and fpecial jurifdiction in fome particular parts of it. Of the former there are four forts; the univerfally eftablifhed courts of common law and equity; the ecclefiaftical courts; the courts military; and courts maritime. And firft of fuch public courts as are courts of common law of equity.

THE policy of our antient conftitution, as regulated and eftablifhed by the great Alfred, was to bring juftice home to every men's door, by conftituting as many courts of judicature as there are manors and townfhips in the kingdom; wherein injuries were redreffed in an eafy and expeditious manner, by the fuffrage of neighbours and friends. Thefe little courts however communicated with others of a larger jurifdiction, and thofe with others of a ftill greater power; afcending gradually from the loweft to the fupreme courts, which were refpectively conftituted to correct the errors of the inferior ones, and to determine fuch caufes as by reafon of their weight and difficulty demanded a more folemn difcuffion. The courfe of juftice flowing in large ftreams

.{FS}
from
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from the king, as the fountain, to his fuperior courts of record; and being then fubdivided into fmaller channels, till the whole and every part of the kingdom were plentifully watered and refrefhed. An inftitution that feems highly agreeable to the dictates of natural reafon, as well as of more enlightened policy; being equally fimilar to that which prevailed in Mexico and Peru before they were difcovered by the Spaniards; and that which was eftablifhed in the Jewifh republic by Mofes. In Mexico each town and province had it's proper judges, who heard and decided caufes, except when the point in litigation was too intricate for their determination; and then it was remitted to the fupreme court of the empire, eftablifhed in the capital, and confifting of twelve judges^a . Peru, according to Garcilaffo de Vega (an hiftorian defcended from the antient Incas of that country) was divided into fmall diftricts containing ten families each, all regiftred, and under one magiftrate; who had authority to decide little differences and punifh petty crimes. Five of thefe compofed a higher clafs or fifty families; and two of thefe laft compofed another called a hundred. Ten hundreds conftituted the largeft divifion, confifting of a thoufand families, and each divifion had it's feparate judge or magiftrate, with a proper degree of fubordination^b . In like manner we read of Mofes; that, finding the fole adminiftration of juftice too heavy for him, he “chofe able “men out of all Ifrael, fuch as feared God, men of truth, hating “covetoufnefs; and made them heads over the people rulers “of thoufands, rulers of hundreds, rulers of fifties, and rulers of “tens: and they judged the people at all feafons; the hard caufes “they brought unto Mofes, but every fmall matter they judged “themfelves^c”. Thefe inferior courts, at leaft the name and form of them, ftill continue in our legal conftitution: but as the fuperior courts of record have in practice obtained a concurrent original jurifdiction with thefe; and as there is befides a power of removing plaints or actions thither from all the inferior jurifdictions; upon thefe accounts (among others) it has happened

.{FS}
^a Mod. Un. Hift. xxxviii. 469.
^b Ibid. xxxix. 14.
^c Exod. c. 18.
.{FE}
that
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that thefe petty tribunals have fallen into decay, and almoft into oblivion: whether for the better or the worfe, may be matter of fome fpeculation; when we confider on the one hand the encreafe of expenfe and delay, and on the other the more upright and impartial decifion, that follow from this change of jurifdiction.

THE order I fhall obferve in difcourfing on thefe feveral courts, conftituted for the redrefs of civil injuries, (for with thofe of a jurifdiction merely criminal I fhall not at prefent concern myfelf) will be by beginning with the loweft, and thofe whofe jurifdiction, though public and generally difperfed throughout the kingdom, is yet, (with regard to each particular court) confined to very narrow limits; and fo afcending gradually to thofe of the moft extenfive and tranfcendent power.

I. THE loweft, and at the fame time the moft expeditious, court of juftice known to the law of England is the court of piepoudre, curia pedis pulverzati: fo called from the dufty feet of the fuitors; or according to fir Edward Coke^d , becaufe juftice is there done as fpeedily as duft can fall from the foot. Upon the fame principle that juftice among the Jews was adminiftred in the gate of the city^c, that the proceedings might be the more fpeedy, as well as public. But the etymology given us by a learned modern writer^f is much more ingenious and fatisfactory; it being derived, according to him, from pied puldreaux a pedlar, in old french, and therefore fignifying the court of fuch petty chapmen as refort to fairs or markets. It is a court of record, incident to every fair and market, of which the fteward of him, who owns or has the toll of the market, is the judge. It was inftituted to adminifter juftice for all injuries done in that very fair or market, and not in any preceding one. So that the injury muft be done complained of, heard, and determined, within the compafs of one and the fame day. The court hath

.{FS}
^d 4 Inft. 272.
^e Ruth. c. 4.
^f Barrington's obfervat. on the ftat. 337.
.{FE}
cognizance
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cognizance of all matters that can poffibly arife within the precinct of that fair or market; and the plaintiff muft make oath that the caufe of an action arofe there^g . From this court a writ of error lies, in the nature of an appeal, to the courts at Weftminfter^h . The reafon of it's inftitution feems to have been, to do juftice expeditioufly among the variety of perfons, that refort from diftant places to a fair or market: fince it is probable that no other inferior court might be able to ferve it's procefs, or execute it's judgements, on both or perhaps either of the parties; and therefore, unlefs this court had been erected, the complaint muft neceffarily have reforted even in the firft inftance to fome fuperior judicature.

II. THE court-baron is a court incident to every manor in the kingdom, and was holden by the fteward within the faid manor. This court-baron is of two natures^l : the one is cuftomary court, of which we formerly fpoke^k , appertaining entirely to the copyholders, in which their eftates are transferred by furrrender and admittance, and other matters tranfacted relative to their tenures only The other, of which we now fpeak, is a court of common law, and it is the court of the barons, by which name the freeholders were fometimes antiently called; for that it is held before the freeholders who owe fuit and fervice to the manor, the fteward being rather the regiftrar than the judge. Thefe courts, though in their nature diftinct, are frequently confounded together. The court we are now confidering, viz. the freeholders' court, was compofed of the lords tenants, who were the pares of each other, and were bond by their feodal tenure to affift their lord in the difpenfation of domeftic juftice. This was formerly held every three weeks; and it's moft important bufinefs is to determine, by writ of right, all controverfies relating to the right of lands within the manor. It may alfo hold plea of any perfonal actions, of debt, trefpafs on the cafe, or the like, where the debt or damages do not amount to forty fhil-

.{FS}
^g Stat. 17 Edw. IV. c. 2.
^h Cro. Eliz. 773.
ⁱ Co. Litt. 58.
^k Book II. ch. 6. and ch. 22.
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E

lingsl.

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lings^l . Which is the fame fum, or three marks, that bounded the jurifdiction of the antient Gothic courts in their loweft inftance, or fierding-courts, fo called becaufe four were inftituted within every fuperior diftrict or hundred^m . “quia tollit atque eximit caufam e curia baronum^o . And the proceedings in all other actions may be removed into the fuperior courts by the king's writs of pone^p , or accedas ad curiam, according to the nature of the fuit^q . After judgment given, a writ alfo of falfe judgment^r lies to the courts at Weftminfter to rehear and review the caufe, and not a writ of error; for this is not a court of record: and therefore in all thefe writs of removal, the firft direction given is to caufe 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 inftead of a manor. The free fuitors are here alfo the judges and the fteward the regiftrar, as in the cafe of a court baron, It is likewife no court of record; refembling the former in all points, except that in point of territory it is of a greater jurifdiction^s . This is faid by fir Edward Coke to have been derived out of the county court for the cafe of the people, that they might have juftice done to them at their own doors, without any charge or lofs of time^t: but it's inftitution was probably co-eval with that of hundreds themfelves, which were formerly obferved^v 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 diftrict compofed of different villags, originally in number an hundred, but afterwards only

.{FS}

l Finch. 248.

q F. N. B. 4. 70. Finch. L. 444. 445.

^m Stiernhook de jure Goth. l. 1. c. 2.        ^r F. N. B. 18.
ⁿ F. N. B. 3. 4. See append. N^o. §. 2.        ^s Finch. l. 248. 4. Inft. 267.

o 3 Rep. Pref.
p See append. No . I. §. 3.		t 2 Inft. 71.
					y Vol. I. introd. §. 4.

called
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called by that name^u; and who probably gave the fame denomination to the diftrict out of which they were chofen. Caefar fpeaks pofitively of the judicial power exercifed in their hundred-courts and courts-baron. “Principes regionum, atque pagorum,” (which we may fairly confture, the lords of hundred and manors) “inter fuos jus dicunt, controverfiafque minuunt^w. And Tacitus, who had examined their conftitution till more attentively, informs us not only of the authority of the lords, but of that of the centeni, the hundredors, or jury; who were taken out of the common freeholders, and had themfelves a fhare in the determination. “Eliguntur in conciliis et principes, qui jura per pagos “vicofque reddunt: centeni fingulis, ex plebe comites, confifium fimul et auctoritas, adfunt^x. This hundred-court was denominated haereda in the Gothic conftitution^y . But this court, as caufes are equally liable to removal from hence, as from the common court-baron, and by the fame writs, and may alfo be reviewed by writ of falfe judgment, is therefore fallen into equal difufe with regard to the trial of actions.

IV. THE county court is a court incident to the jurifdiction of the theriff. It is not a court of record, but may hold pleas of debt or damages under the value of forty fhillings^z . Over fome of which caufes thefe inferior courts have, by the exprefs words of the ftatute of Gloucefter^a , a jurifdiction totally exclufive of the king's fuperior courts. For in order to be entitled to fue an action of trefpafs for goods before the king's jufticiars, the plaintiff is directed to make affidavit that the caufe of action does really and bona fide amount to 40 s : which affidavit is now unaccountably difued^b , except in the court of exchequer. The ftatute alfo 43 Eliz. c. 6. which giver the judges in all perfonal actions, where the jury affefs lefs damages than 40 s, a power

.{FS}
^u Centri ex fingulis pagis funt, idque ipfum inter fous vocantur; et, quod primo numerus fuit, jam nomen et honor eft. Tac. de mor. Germ. c. 6.
^w de bell. Gall. l. 6. c. 22.
^x de morib. German. c. 13.
^y Stiernhook, l. 1. c. 2.
^z 4 Inft. 266.
^a 6 Edw. I . c. 8.
^b 2 Inft. 391.
.{FE}

E 2

to

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to certify the fame and abridge the plaintiff of his full cofts, was alfo meant to prevent vexation by litigious plaintiffs; who, for purpofes of mere oppreffion, might be inclinable to inftitute fuits in the fuperior courts for injuries of a triffing value. The county court may alfo hold plea of many real actions, and of all perfonal actions to any amount, by virtue of a fpecial writ called a jufticies; which is a writ empowering the fheriff for the fake of difpatch to do the fame juftice in his county court, as might otherwife be had at Weftminfter^c . The freeholders of the county are the real judges in this court, and the fheriff is the minifterial officer. The great conflux of freeholders, which are fuppofed always to attend at the county court, (which Spelman callsj forum plebeiae juftitiae et theatrum comitivae poteftatis^d ) is the reafon why all acts of parliament at the end of every feffion were wont to be there publifhed by the fheriff; why all outlawries of abfconding offenders are there proclaimed; and why all popular elections which the freeholders are to make, as formerly of fheriffs and confervators of the peace, and ftill of coroners, verderors, and knights of the fhire, muft ever be made in pleno comtatu, or, in full county court. By the ftatute 2 Edw. VI. c. 25. no county court fhall be adjourned longer than for one month, confifting of twenty eight days. And this was alfo the antient ufage, as appears from the laws of king Edward the elder^e : “praepofitus “(that is, the fheriff) ad quartam circiter feptimanam frequentem “populi concionem celebrato: cuique jus dicito; litefque fingulas dirimito.” In thofe times the county court was a court of great dignity and fplendor, the bifhop and the ealdorman (or earl) with the principal men of the fhire fitting therein to adminifter juftice both in lay and ecclefiaftical cuafes^f . But it's dignity was much impaired, when the bifhop was prohibited and the earl neglected to attend it. And, in modern times, as proceedings are removeable from hence into the king's, as proceedings are removeable from hence into the king's fuperior courts, by writ of pone or recordare^g , in the fame manner as from hundred-

.{FS}
^c Finch. 318. F. N. B. 152.
^d Gloff. v. cemitatas.
^e c. 11.
^f LL. Eadgari. c. 5.
^g F. N. B. 70. Finch. 445.
.{FE}

courts

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courts, and courts-baron; and as the fame writ of falfe judgment may be had, in nature of a writ of error; this has occafioned the fame difufe of bringing actoins therein.

THESE are the feveral fpecies of common law courts, which though difperfed univerfally throughout the realm are neverthelefs of a partial jurifdiction and confined to particular diftricts: yet communicating with, and as it were members of, the fuperior courts of a more extended and general nature; which are calculated for the adminiftration of redrefs not in any one lordfhip, hundred, or county only, but throughout the whole kingdom at large. Of which fort is

V. The court of common pleas, or, as it is frequently termed in law, the court of common bench.

BY the antient Saxon conftitution there was only one fuperior court of juftice in the kingdom: and that had congnizance both of civil and fpiritual caufes; viz. the wittena-gemote, or general council, which affembled annually or oftener, wherever the king kept his Eafter, Chriftmas, or Whitfontide, as well to do private juftice as to confult uppon public bufnefs. At the conqueft the ecclefiaftical juriftiction was diverted into another channel; and the conqueror, fearing danger from thefe annual parliaments, contrived alfo to feparate their minifterial power, as judges, from their deliberative, as counfellors to the crown. He therefore eftablifhed a conftant court in his own fhall, thence called by Bracton^h and other antient authors aula regia or aula regis. This court was conpofed of the king's great officers of the ftate refident in his palace, and ufually attendant on his perfon: fuch as the lord high conftable and lord marefchal, who chiefly prefided in matters of honour and of arms; determining according to the law military and the law of nations. Befides thefe there were the lord high fteward, and lord great chmberlain; the fteward of the houfhold; the lord chancellor, whofe peculiar bufinefs it was

.{FS}
^h L. 3. tr. I. c.
.{FE}

to

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to keep the king's feal and examine all fuch writs, grants, and letters, as were to pafs under that authority; and the lord high treafurer, who was the principal advifer in all matters relating to the revenue. Thefe high officers were affifted by certain perfons learned in the laws, who were called the king's jufticiars or juftices; and by the greater barons of parliament, all of whom had a feat in the aula regia, and formed a kind of court of appeal, or rether of advice, in matters of great moment and difficulty. All thefe in their feveral departments tranfacted all fecular bufinefs both criminal and civil, and likewife the matters of the revenue: and over all prefided one fpecial magiftrate, called the chief jufticiar of capitalis jufticiarius totius Angliae; who was alfo the principal minifter of ftate, the fecond man in the kingdom, and by virtue of his office guardian of the realm in the king's abfence. And this officer it was who principally determined all the vaft variety of caufes that arofe in this extenfive jurifdiction; and from the plenitude of his power grew at length both obnoxious to the people and dangerous to the government which employed him^j .

THIS great univerfal court being bound to follow the king's houfehold in all his progreffes and expeditions, the trial of common caufes therein was found very burthenfome to the fubject. Wherefore king John, who dreaded alfo the power of the jufticiar, very readily confented to that article which now forms the eleventh chapter of magna carta, and enacts “that communia placita non fequantur curiam regis, fed teneantur in aliquo loco certo.” This certain place was eftablifhed in Wefminfter-hall, the place where the aula regis originally fate when the king refided in t that city; and there it hath ever fince continued. And the court being thus rendered fixed and ftationary, the judges became fo too, and a chief with other juftices of the common pleas was thereupon appointed; with jurifdiction to hear and determine all pleas of land, and injuries merely civil between fubject and fubject. Which critical eftablifhment of this principal court of

.{FS}
Spelm. Gl. 331, 2, 3. Gilb. Hift. C. P. introd. 17.
.{FE}

common

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common law, at that particular juncture and that particular place, gave rife to the inns of court in it's neighbourhood; and thereby collecting together the whole body of the common lawyers, enabled the law itfelf to withftand the attacks of the canonifts and civilians, who laboured to extirpate and deftroy itⁱ . This precendent was foon after copied by king Philip the fair in France, who about the year 1302 fixed the parliament of Paris to abide conftantly in that metropolis; which before ufed to follow the perfon of the king, wherever he went, and in which he himfelf ufed frequently to decide the caufes that were there depending: but all were then referred to the fole connizance of the parliament and it's learned judges^k . And thus alfo in 1495 the emperor Maximilian I. fixed the imperial chamber (which before always travelled with the court and houfhold) to be conftantly held at Worms, from whence it was afterwards tanflated to Spire^l .

THE aula regia being thus ftripped of fo confiderable a branch of it's jurifdiction, and the power of the chief jufticiar being alfo confiderably curbed by many articles in the great charter, the authority of both began to decline apace under the long and troublefome reign of king Henry III. And, in farther purfuance of this example, the other feveral office of the chief jufticiar were under Edward the firft (who new-modelled the whole frame of our judicial polity) fubdivided and broken into diftinct courts of judicature. A court of chivalry was erected, over which the conftable and marefchal prefided; as did the fteward of the houhold over another, conftituted to regulate the king's domeftic fervants. The high fteward, with the barons of parliament, formed an auguft tribunal for the trail of delinquent peers; and the barons referved to themfelves in parliament the right of reviewing the fentences of other courts in the laft refort. The diftribution of common juftice between man and man was thrown into fo provident an order, that the great judicial officers were

.{FS}
ⁱ See vol. I. introd. §. I.
^k Mod. Un. Hift. xxiii. 396.
^l Ibid. xxix. 467.
.{FE}

made

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made to form a checque upon each other: the court of chancery iffuing all original writs under the great feal to the other courts; the common pleas being allowed to determine all caufes between private fubjects; the exchequer managing the king's revenue; and the court of king's bench retaining all the jurifdiction which was not cantoned out to other courts, and particularly the fuperintendence of all the reft by way of appeal; and the fole cognizance of pleas of the crown or criminal caufes. For pleas of fuits are regularly divided into two forts; pleas of the crown, which comprehend all crimes and mifdemefnors, wherein the king (on behalf of the public) is the plaintiff; and common pleas, which include all civil actions depending between fubject and fubject. The former of thefe were the proper object of the jurifdiction of the court of king's bench; the latter of the court of common pleas. Which is a court of record, and is ftiled by fir 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 perfonal, pleas between amn and man are likewife here determined; though in fome of them the king's bench has alfo a concurrent authority.

THE judges of this court are at prefentⁿ four in number, one chief and three puifne juftices, created by the king's letters patent, who fit every day in the four terms to hear and determine all matters of law arifing in civil caufes, whether real, perfonal or mixed and compounded of both. Thefe it takes cognizance of, as well originally, as upon removal from the inferior courts before-mentioned. But a writ of error, int he nature of an appeal, lies from this court into the court of king's bench.

.{FS}
^m 4 Inft. 99.
ⁿ King James I, during part of his reign, appointed five judges in every court, for the benefit of a cafting voice in cafe of a difference in opinion, and that the circuits might at all times be fully fupplied with judge of the fuperior courts. And, in fubfequent reigns, upon the permanent indifpofition of a judge, a fifth hath been fometimes appointed. Raym. 475.
.{FE}

VI. THE

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VI. THE court of king's bench (fo called becaufe the king ufed formerly to fit there in perfon^o, the ftitle of the court ftill being coram ipfo rege) is the fupreme court of common law in the kingdom, confifting of a chief juftice and three puifne juftices, who are by their office the fovereign confervators of the peace and fupreme coroners of the land. Yet, though the king himfelf ufed to fit in this court, and ftill is fuppofed fo to do; he did not, neither by law is the empowered^p to, determine any caufe or motion, but by the mouth of his judges, to whom he hath committed his whole judicial authority^q .

THIS court (which as we have faid) is the remnant of the aula regia, is not, nor can be, from the very nature and conftitution of it, fixed to any certain place, but may follow the king's court wherver it goes; for which reafon all procefs iffuing out of this court in the king's name is returnable “ubicunque fuerimus in Anglia.” It hath indeed, for fome centuries paft, ufually fate at Weftminfter, 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 fate att Roxburgh^r . And this moveable quality, as well as ti's dignity and power, are fully expreffed by Bracton, when he fays that the juftices of this court are “capitales, generales, perpetui, et majores; a latere regis reftdentes; qui omnium aliorum corrigere tenentur injurias et errores^s .” And it is moreover efpecially provided in the articuli fuper cartas^t that the king's chancellor, and the juftifces of his bench fhall

.{FS}
^o 4 Inft. 73.
^p See book I. ch. 7. The king ufed to decide caufes in perfon in the aula regina. “In curia domini regis ipfe in prepria perfona jura “decernit.” (Dial. de Sead b. l. I. §. 4.) After it's diffolution, king Edward I frequently fate in the court of king's bench. (See the records cited 4 Burr. 851.) And, later times, James I is faid to have fate there in perfon, but was informed by his judges that he could not deliver an opinion.
^q 4 Inft. 71.
^r M. 20, 21 Edw. I. Hale Hift. C. L. 200.
^s l. 3. c. 10.
^t 28 Edw. I. c. 5.
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F

follow

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follow him, fo that he may have at all times near unto him fome that be learned in the laws.

THE jurifdiction of this court is very high and tranfcendent. It keeps all inferior jurifdictions within the bounds of their authority, and may either remove their proceedings to be determined here, or prohibit their progrefs below. It fuperintends all civil corporations in the kingdom. It commands magiftrates and others to do what their duty requires, in every cafe where there is no other fpecific remedy. It protects the liberty of the fubject, by fpeedy and fummary interpofition. It takes cognizance both of criminal and civil caufes; the former in what is called the crown-fide or crown-office; the latter in the plea-fide of the court. The jurifdiction of the crown-fide it is not our prefent bufinefs to confider: that will be more properly difcuffed in the enfuing volume. But on the plea-fide, or civil branch, it hath an original jurifdiction and cognizance of all trefpaffes, and other injuries, alleged to be committed vi et armis: which, being a breach of the peace, favour of a criminal natuer although the action is brought for a civil remedy; and for which the defendant ougtht in ftrictnefs to pay a fine to the king, as well as damages to the injured party^u . This court might likewife, upon the divifion of the aula regia, have originally held plea of any other civil action whatfoever, (excepting actions real, which are new very feldom in ufe) profided the defendant was an officer of the court; or in the cuftody of the marfhall, or prifon-keeper, of this court, for a breach of the peace or any other offence^w . In procefs of time, by a fiction, this court began to hold plea of all perfonal actions whatfoever, and as continued to do fo for ages^x : it being furmifed that the defendant is arrefted for a fuppofed trefpafs, which he never has in reality committed; and being thus in the cuftody of the marfhall of this court, the plaintiff is at liberty to proceed againft him for any other perfonal injury: which furmife, of being in the marfhall's cuftody.

.{FS}
^u Finch. L. 198.
^w 4 Inft. 71.
^x Ibid. 72.
.{FE}

the

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the defendant is not at liberty to difpute^y. And thefe fictions of law, though at firft they may ftartle the ftudent, he will find upon farther confideration to be highly beneficial and ufeful: efpecially as this maxim is ever invariably obferved, that no fiction fhall extend to work an injury; it's proper operation being to prevent a mifchief, or remedy an inconvenience, that might refult from the general rule of law ^z. So true is it, that in fictione juris femper fubfiftit aequitas^a . In the prefent cafe, it gives the fuitor his choice of more than one tribunal, before which he may inftitute his action; and prevents the circuity and delay of juftice, by allowing that fuit to be originally, and in the firft inftance, commenced in this court, which after a determination in another, might ultimately be brought before it on a writ of error.

FOR this court is likewife 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 alfo from the court of king's bench in Ireland. Yet even this fo high and honourable court is not the derneir refort of the fubject; for if he be not fatisfied with any determination here, he may remove it by writ of error into the houfe of lords, or the court of exchequer chamber, as the cafe may happen, according to the nature of the fuit, and the manner in which it has been profecuted.

VII. THE court of exchequer is inferior in rank not only to the court of king's bench, but to the common pleas alfo: but I have chofen to confider it in this order, on account of it's double capacity, as a court of law and a court of equity alfo. It is a very antient ocurt of record, fet up by William the conqueror^b,

.{FS}
^y Thus too in the civil law: contra fictionem non admittitur probatio: quid enim efficeret probatio veritatis, ubi fictio adverfus veritatem fingit? Nam fictio nibil aliud eft, quam legis adverfus veritatem in re poffibilis ex jufta canfa difpofitio, (Gothfred. in Ff. l. 22. t. 3.)
^z 3 Rep. 30. 2 Roll. Rep. 502.
^a 11 Rep. 61. Co. Litt. 150.
^b Lamb. Archeiox. 24.
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F 2

as

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as a part of the aula regia^c , though regulated and reduced to it's prefent order by king Edward I^d ; and intended principally to order the revenues of the crown, and to recover the king's debts and duties^e . It is called the exchequer, fcaccharium, from the checqued cloth, refembling a chefs-board, which covers the table there; and on which, when certain of the king's accounts are made up, the fums are marked and fcored with counters. It confifts of two divifions: the receipt of the exchequer, which manges the royal renvenue, and with which thefe commentaries have no concern; and the court or judicial partt of it, which is again fubdivided into a court of equity, and a court of common law.

THE court of equity is held in the exchequer chamber before the lord treafurer, the chancellor of the exchequer, the chief baron, and three puifne ones. Thefe Mr Selden conjectures^f to have antiently been made out of fuch as were barons of the kingdom, or parliamentary barons; and thence to have derived their name: which conjecture receives great ftrength from Braction's explanation of magna charta, c. 14. which directs that the earls and barons be amerced by thier peers; that is, fays he, by the barons of the exchequer^g . The primary and original bufinefs 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 conftitution the jurifdiction of the courts of common pleas, king's bench, and exchequer, was entirely feparate and diftinct; the common pleas being intended to decide all controvefies between fubject and fubject; the king's bench to correct all crimes and mifdemefnors that amount to a breach of the peace, the king being then plainftiff, as fuch offences are in open derogation of the jura regalia of his crown; and the exchequer to adjuft and recover his revenue, wherein the king alfo is plaintiff, as the withholding and non-

.{FS}
^e Madox. Hift. Exch. 109.
^d Spelm. Guil. I. in cod. leg. qut. vet apud Wilkins.
^e 4 Inft. 103-116.
^f Tit. hon. 2. 5. 16.
^g l. 3. tr. 2. c. 1. §. 3.
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payment

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payment thereof is an injury to his jura fifcalia. But, as by fiction almoft all forts of civil actions are now allowed to be brought in the king's bench, in like manner by another fiction all kinds of perfonal fuits may be profecuted in the court of exchequer. For as all the officers and minifters of this court have, like thofe of other fuperior courts, the privilege of fuing and being fued only in their own court; fo alfo the king's debtors, and farmers, and all accomptants of the exchequer, are privileged to fue and implead all manner of perfons in the fame court of equity, that they themfelves are called into. They have likewife privilege to fue and implead one another, or any ftranger, in the fame kind of common law actions (where the perfonalty only is concerned) as are profecuted in the court of common pleas.

THIS gives original to the common law part of their jurifdiction, which was eftablifhed merely for the benefit of the king's accomptants, and is exercifed by the barons only the exchequer, and not the treafurer or chancellor. The wirt upon which all proceedings here are gounded is called a quo minus: in which the plaintiff fuggefts that he is the king's farmer or debtor, and that the defendant hath done him the injury or damage complained of; quo minus fufficiens exiftit, by which he is the lefs abie, to pay the king his debt or rent. And thefe fuits are expreffly directed, by what is called the ftatute of Rutland^h , to be confined to fuch matters only as fpecially concern the king or his minifters of the exchequer. And by the articuli fuper cartasⁱ 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 fuggeftion of privilege, any perfon may be admitted to fue oin the exchequer as well as the king's accomptant. The furmife, of being debtor to the king, is thererfore become matter of form and mere words of courfe, and the court is open to all the nation equally. The fame holds with regard to the equity fide of the court: for there any perfon may file a bill againft

.{FS}
^h 10 Edw. I. c. 11.
^f 28 Edw. I. c. 4.
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another upon a bare fuggeftion that he is the kings accomptant; but wherther he is fo, or not, is never controverted. In this court, on the equity fide, the clergy have long ufed to exhibit their bills for the non-payment of tithes; in-which cafe the furmife of being the king's debtor is no fiction, they being bound to pay him their firft fruits, and annual tenths. But the chancery has of late years obtained a large fhare in this bufinefs.

AN appeal from the equity fide of this court lies immedaitely to the houfe of peers; but from the common law fide, in purfuance of the ftatute 31 Edw. III. c. 12. a.writ of error muft be firft brought into the court of exchequer chamber. And from their determination there lies, in the dernier refort, a writ of error to the houfe of lords.

VIII. THE high court of chancery is the only remaining, and in matters of civil property by much the moft important of any, of the king's fuperior and original courts of juftice. It has it's name of chancery, cancellaria, from the judge who prefides here, the lord chancellor or cancellarius; who, fir Edward Coke tells us, is fo termed a cancellando, from cancelling the king's letters patents when granted contrary to law, which is the higheft point of his jurifdiction^k. But the office and name of chancellor (however derived) was certainly known to the courts of the Roman emperors; where originally it feems to have fignified a chief fcribe or fecretary, who was afterwards invefted with feveral judicial powers, and a general fuperintendency over the reft of the officers of the prince. From the Roman empire it paffed to the Roman church, ever emulous of imperial ftate; and hence every hifhop has to this day his chancellor, the principal judge of his confiftory. And when the modern kingdoms of Europe were eftablifhed upon the ruins of the empire, almoft every ftate preferved it's chancellor, with different jurifdictions and dignities, according to their different conftitutions. But in all of them he feems to have had the fupervifion of all charter, letters, and

.{FS}
^k 4 Inft. 88.
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fuch

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fuch other public inftruments of the crown, as were authenticated in the moft folemn manner; and therefore, when feals came in ufe, he had always the cuftody of the king's great feal. So that the office of chancellor, or lord keeper, (whofe authority by ftatute 5 Eliz. c. 18. is declared to be exactly the fame) is with us at this day created by the mere delivery of the king's great feal into his cuftody^l : whereby he becomes, without writ or patent, an officer of the greateft weight and power of any now fubfifting in the kingdom; and fuperior in point of precedency to every temporal lord^m. He is privy councellor by his office, and, according to lord chancellor Ellenfmereⁿ, prolocutor of the houfe of lords by prefcription. To him belongs the appointment of all juftices of the peace throughout the kingdom. Being formerly ufually an ecclefiaftic, (for none elfe were them capable of an office fo converfant in writings) and prefiding over the royal chapel^o , he became keeper of the king's confecience; vifitor, in right of the king, of all hofpitals and colleges of the king's foundation; and patron of all the king's livings under the value of 20 l. per annum in the king's books. He is the general guardian of all infants, idiots, and lunatics; and has the general fuperintendence of all charitable ufes in the kingdom. And all this, over and abvoe the vaft and extenfive jurifdiction which he exercifes in his judicial capacity in the court of chancery: wherein, as in the exchequer, there are two diftinct 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. It's jurifdiction is to hold plean upon a fcire facias to repeal and cancel the king's letters patent, when made againft law, or upon untrue fuggeftions; and to hold plea of petitions, monftrans de droit, traverfes of offices, and the like; when the king hath been advifed to do any act, or is put in poffeffion of

.{FS}
^l Lamb. Archeion. 65. 1 Roll. Abr. 385.
^m Stat. 31. Hen. VIII. c. 10.
ⁿ of the office of lord chancellor. edit. 1651.
^o Madox. Mift. of exch 43.
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any

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any lands or goods, in prejudice of a fubject's right^p. On proof of which, as the king can never be fuppofed intentionally to do any wrong, the law queftions not but he will immediately redrefs the injury; and refers that confcientious tafk to the chancellor, the keeper of his confcience. It alfo appertains to this court to hold plea of all perfonal actions, where any officer or minifter of the court is a party^q . It might likewife hold plea (by fcire facias) of partitions of lands in coparcenary^r , and of dower^s , where any ward of the crown was concerned in intereft, fo long as the military tenures fubfifted: as it now may alfo do of the tithes of foreft land, where granted by the king and claimed by a ftranger againft the grantee of the crown^t ; and of executions on ftatutes, or recognizances in nature thereof by the ftatute 23 Hen. VIII. c. 6.^u But if any caufe comes to iffue in this court, that is, if any fact be difputed between the parties, the chancellor cannot try it, having no power to fummon a jury; but muft deliver the record propria manu into the court of king's bench, where it fhall be tired by the country, and judgment fhall be there given thereon^w . 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^x : though fo little is ufually done on the common law fide of the court, that I have met with no traces of any writ of error^y being actually brought, fince the fourteenth year of queen Elizabeth, A. B. 1572.

IN this ordinary, or legal, court is alfo kept the officina juftitiae: out of which all original writs that pafs under the great feal, all commiffions of charitable ufes, fewers, bankruptcy,

.{FS}
^p 4 Rep. 64.
^q 4 Inft. 80.
^r Co. Litt. 171. F. N. B. 62.
^s Bro. Abr. tit. dower. 66. Moor. 565.
^t Bro. Abr. t. difmes. 10.
^w 2 Roll. Abr. 469.
^w Cro. Jac. 12.
^x Ycarbook, 18 Edw. III. 25. 17 Aff. 24. 29 Aff. 47. Dyer. 315. 1 Roll. Rep. 287. 4 Inft. 80.
^y The opinion of lord keeper North in 1682 (1 Vern. 131. 1 Equ. Caf. abr. 129.) that no fuch writ of error lay, and that an injunction might be iffued againft. it, feems not to have been well confidered.
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idiocy,

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idiocy, lunacy, and the like, do iffue; and for which it is always open to the fubject, who may there at any time demand and have, cx debito juftitiae, any writ that his occafions may call for. Thefe writs (relating to the bufinefs of the fubject) and the returns to them were, according to the fimplicity of antient times, originally kept in a hamper, in hanaperio; and the other (relating to fuch matters wherein the crown is immediately or mediately concerned) were preferved in a little fack or bag, in parva baga; and thence hath arifen the diftinction 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 euqity, is now become the court of the greateft judicial confequence. This diftinction between law and equity, as adminiftred in different courts, is not a prefent known, nor feems to have ever been known, in any other country at any time^z : and yet the differnce of one from the other, when adminiftred by the fame tribunal, was perfectly familiar to the Romans^a ; the jus praetorium, or diferetion of the praetor, being diftinct from the leges or ftanding laws^b : but the power of both centered in one and the fame magiftrate, who was equally intrufted to pronounce the rule of law, and to apply it to particular cafes by the principles of equity. With us too, the aula regia, which was the fupreme court of judicature, undoubtedly adminiftered equal juftice according to the rules of both or either, as the cafe might chance to require: and, when that was broken to pieces, the idea of a court of equity, as diftinguifhed from a court of law, did not fubfift in

.{FS}
^z The council of confcience, inftituted by John III, king of Portugal, to review the fentences of all inferior courts, and moderate them by equity. (Mod. Un. Hift. xxii. 237.) feems rather to have been a court of appeal.
^a Thus too the parliament of Paris, the court of feffion in Scotland, and every other jurifdiction in Europe of which we have any tolerable account, found all their decifions as well upon principles of equity as thofe of pofitive law (Lord Kayms. h flor. lawtracts, I. 325. 330. princ of equity 44.)
^b Thus Cicero; “jam illis promiffas non “effe ftandum, quis non videt, quae coectus “quis metu et deceptus aolo premijerit? quat “quidem plerumque jure praetorto liberantur, “monnulla legibus” Office. l. 1.
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VOL. III.

G

the

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the original plan of partition. For though equity is mentioned by Bracton^c as a thing contrafted to ftrict law, yet neither in that writer, nor in Glanvil or Fleta, nor yet in Britton (compofed under the aufpices and in the name of Edward I, and treating particularly of courts and their reveral jurifdictions) is there a fyllabel to be found relating to the equitable jurifdiction of the court of chancery. It feems therefore probable, that when the courts of law, proceeding merely upon the ground of the king's original writs and confining themfelves ftrictly to that bottom, gave a harfh or imperfect judgment, the application for redrefs ufed to be to the king in perfon affiffted by his privy council, (from whence alfo arofe the jurifdiction of the court of requefts^d, which was virtually abolifhed by the ftatute 16 Car. I. c. 10.) and they were wont to refer the matter either to the chancellor and a felect committee, or by degrees to the chancellor only, who mitigated the feverity or fupplied the defects of the judgments pronounced in the courts of law, upon weighing the circumftances of the cafe. This was the cuftom not only among our Saxon anceftors, before the inftitution of the aula regia^e , but alfo after it's diffolution, in the reign of king Edward I^f , if not that of Henry II^g.

IN thefe early times the chief juridical employment of the chancellor muft have been in devifing new writs, directed to the courts of common law, to give remedy in cafes where none was before adminiftered. And to quicken the diligence of the clerks in the

.{FS}
^c l. 2. c. 7. fol. 23.
^d The matters cognizable in this ocurt, immediately before it's diffolution, were “almoft all fuits, that by colour of equity, “or fupplication made to the prince, might “be brought before him: but originally “and properly all poor men's fuits, which “were made to his majeftly by fupplication; 'and upon which they were intitled to have “right without payment of any money for “the fame.” (Smith's commonwealth. b. 3. c. 7.)
^e Nemo ad regem appllet pro aliqua lite, nift jus domi confequi non poffit. Si jus nimis fevereum fit, alleviatio deinde quaeratur apud regem. LL. Edg. c. 2.
^f Lambard. Archeion. 59.
^g Joannes Sarifburienfis (who died A. D. 1182, 26 Hen. II.) fpeaking of the chancellor's office in the verfes prefixed to his polycraticon, has thefe lines; Hie eft, qui leges regni cancellat iniquas, Et mandata pii principis atqua facit.
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chancery

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chancery, who were too much attached to antient precedents, it is provided by ftatute Weftm. 2. 13. Edw. I. c. 24. that “whenfoever from thenceforth in one cafe a writ fhall be found in the “chancery, and in a like cafe falling under the fame right and 'requiring like remedy no precedent of a writ can be produced, “the clerks in chancery fhall agree in forming a new one: and, “if they cannot agree, it fhall be adjourned to the next parliament, where a writ fhall be framed by confent of the learned “in the law^{h ,} left it happen for the future that the court of our “lord the king be deficient in doing juftice to the fuitors.” And this accounts for the very great variety of writs of trefpafs on the cafe, to be met with in the regifter, whereby the fuitor had ready relifef according to the exigency of his bufinefs, and adapted to the fpecialty, reafon,a nd equity of his very cafeⁱ. Which provifion (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 wirt) might have effectually anfwered all the pupofes of a court of equity^k ; except that of obtaining a difcovery by the oath of the defendant.

BUT when, about the end of the reign of king Edward III, ufes of land were introduced^l, and, though totally difcountenanced by the courts of common law, were confidered as fiduciary depofits and binding in confcience by the clergy, the feparate jurifdiction of the chancery as a court of equity began to be eftablifhed^m ; and John Waltham, who was bifhop of Salifbury and chancellor to king Richard II, by a ftrained interpretation of the above-mentioned ftatute of Weftm. 2. devifed the writ of fubpoena, returnable in the court of chancery only, to make the feoffe to ufes accountable to his ceftury que ufe: which procefs was afterwards

.{FS}
^h A great variety of new precedents of writs, in cafes before uprovided for, are given by this very ftatute of Weftm. 2.
ⁱ Lamb. Archeion. 61.
^k This was the opinion of Fairfax, a very learned judge in the time of Edward the fourth “Le fubpoena (fays he) ne ferrcit my “ty foventement ufe come if eft ore fi nous attendomus tiels actions fur les cafes, et main “teinomus le jurifdiction de ceo court, et d'axter courts.” (Yearb. 21. Edw. IV. 23.)
^l See book II. ch. 20.
^m Spelm Gloff. 106. 1. Lev. 242.
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extended

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extended to other matters wholly determinable at the common law, upon falfe and fictitious fuggeftions; for which therefore the chancellor himfelf is by ftatute 17 Ric. II. c. 6. directed to give damages to the parties unjuftly aggrieved. But as the clergy, fo early as the reign of king Stephen, had attempted to turn their ecclefiaftical courts into courts of equity, by entertaining fuits pro laefione fidei, as a fpiritual offence againft confcience, in cafe of nonpayment of debts or any breach of civil contractsⁿ ; till checked by the conftitutions of Clarendon^o , which declared that “placita de debitis, quae fide interpofita debentur, vel abfque interpofitione fidei, fint in jufticia regis:” therefore probably the ecclefiaftical chancellors, who then held the feal, were remifs in abridging their own new-acquired jurifdiction; efpecially as the fpiritual courts continued to graft at the fame authority as before, in fuits pro laefione fidei, fo late as the fifteenth century^p , till finally prohibited by the unanimous concurrence of all the judges. However, it appears from the parliament rolls^q , that in the reigns of Henry IV and V the commons were repeatedly urgent to have the writ of fubpoena intirely fuppreffed, as being a novelty devifed by the fubtilty of chancellor Waltham, againft the form of the common law; whereby no plea could be determined, unlefs by examination and oath of the parties, according to the form of the law civil, and the law of holy church, in fubverfion of the common law. But though Henry IV, being then hardly warm in his throne, gave a palliating anfwer to their petitions, and actually paffed the ftatute 4 Hen. IV. c. 23. whereby judgments at law are declared irrevocable unlefs by attaint or writ of error, yet his fon put a negative at once upon their whole application: and in Edward IV' time, the procefs by bill and fubpoena was become the daily practice of the court^r.

.{FS}
ⁿ Lord Lyttelt. Hen. II. b. 3. p. 361. not.
^o 10 Hen. II. c. 15.
^p Yearb. 2 Hec. IV. 10. 38. Hen. VI. 29.
^q Rot. Parl. 4 Hen. IV, n^o . 78. & 110. 3 Hen. V. n^o . 46. cited in Prynne's abr. of Cotton's records. 410. 422. 424. 548. 4 Inft. 83. 1 Roll. Abr. 370, 371, 372.
^r Rot. parl. 14 Edw. IV. n^{o . 33.} (not 14 Edw. III. as cited 1 Roll. Abr. 370, & c.)
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BUT

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BUT this did not extend very far: for in the antient treatife, intitled diverfite des courtes^s, fuppofed to be written very early in the fixteenth century, we have a catalogue of the matters of confcience then cognizable by fubpoena in chancery, which fall within a very narrow compafs. No regular judicial fyftem at that time prevailed in the court; but the fuitor, when he thought himfelf aggrived, found a defultory and uncertain remedy, according to the private opinion of the chancellor, who was generally an ecclefiaftic, or fometimes (though rerely) a ftatefman: no lawyer having fate in the court of chancery from the times of the chief juftices Thorpe and Knyvet, fucceffively chancellors to king Edward III in 1372 and 1373^t , to the promotion of fir Thomas More by king Henry III in 1530. After which the great feal was indifcriminately committed to the duftody of lawyers, or courtiers^v , or churchmen^u, according as the convenience of the times and the difpofition of the prince required, til ferjeant Puckering was made lord keeper in 1592: from which time to the prefent the court of chancery has always been filled by a lawyer, exceping the interval from 1621 to 1625, when the feal was intrufted to Dr Williams, then dean of Weftminfer, but afterwards bifhop of Lincoln; who had been chaplain to lord Ellefmere, when chancellor^w.

IN the time of lord Elelfmere (A. D. 1616.) arofe that notable difpute between the courts of law and equity, fet on foot by fir Edward Coke, then chief juftice of the court of king's bench; whether a court of equity could give relief after or againft a judgment at the common law. This conteft was fo warmly carried on, that indictments were preferred againft the fuitors, the folicitors, the counfel, and even a mafter in chancery, for having incurred a praemunire, by queftioning in a court of equity a judgment in the court of king's bench, obtained by

.{FS}
^s tit. chancery. fol. 296. Raftell's edit. A. D. 1534.
^t Spelm. Gloff. III. Dugd. chron Ser. 50.
^v Wriothefly, St John, and Hatton.
^u Goodrick, Gardiner, and Heath.
^w Biogr. Brit. 4278.
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grofs fraud and impofition^x . This matter, being brought before the king, was by him referred to his learned counfel for their advice and opinion; who reported fo ftrongly in favour of the courts of equity^y, that his mefefty??? gave judgment on their behalf: but, not contented with the irrefragable reafons and precedents produced by his counfel, (for the chief juftice was clearly in the wrong) he chofe rather to decide the queftion by referring it to the plenitude of his royal prerogative^z . Sir Edward Coke fubmitted to the decifion^a , and thereby made atonement for his error. but this ftruggle, together with the bufinefs of commnedams (in which he acted a very noble part^b ) and his controlling the commiffioners of fewers^c, were the open and avowed caufes^d , firft of his fufpenfion, and foon after of his removal, from his office.

LORD Bacon, who fucceeded lord Ellefmere, reduced the practice of the court into a more regular fyftem; but dit not fit long enough to effect any confiderable revolution in the fcience itfelf: and few of his decrees which have reached us are of any grat confequence to pofterity. His fucceffors, in the reign of

.{FS}
^x Bacon's works. IV. 611, 612. 632.
^y Whitelocke of parl. ii. 390. 1. Chan. Rep. append. 11.
^z “For that it appertaineth to our princely office only to judge over all judges, and “to difcern and determine fuch differences, “as atany time may and fhal arife between “our feveral courts touching their jurifdictions, and the fame to fettle and determine, as we in our princely wifdom fhall “find to ftand moft with our honour, & c.” (1 Chan. Rep. append. 26.)
^a See the entry in the council book, 26 July, 1616. (biogr. Brit. 1390.)
^b In a caufe of he bifhop of Winchefter, touching a commendam, king James, conceiving that the matter affected his prerogative, fent letters to the jueges not to proceed in ti, till himfelf had been firft confulted. The twelve judges joined in a memorial to his majefty, declaring that their compliance would be contrary to their oaths and the law: but upon being brought before the king in council, they all retracted and promifed obedience in every fuch cafe for the future, except fir Edward Coke, who faid, “that when the cafe happende, he “would do his duty.” (Biogr. Brit. 1388.)
^c See that article in chap. 6.
^d See lord Ellefmere's fpeech to fir Henry Montague, the new chief juftice, 15 Nov. 1616. (Moor's reports. 828.) Though fir Edward might probably have retained his feat, if during his fufpenfion he would have complimented lord Villiers (the new favorite) with the difpofal of the moft lucrative office in his court. (biogr. Brit. 1391.)
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Charles I,

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Charles I, little to improve upon his plan: and even after the reftoratin the feal was committed to the earl of Clarendon, who had withdrawn from practice as a lawyer near twenty yeras s and afterwards to the earl of Shaftefbury, who had never practifed at all. Sir Heneage Finch, who fucceeded in 1673 and became afterwards earl of Nottingham, was a perfon of the greateft abilities and moft uncorrupted integrity; a thorough mafter and zealous defender of the laws and conftitution of his country; and endued with a pervading genius, that enabled him to difcover and to purfue the true fpirit of juftice, notwithftanding the embaraffments raifed by the narrow and technical notions which then prevalied in the courts of law, and the imperfect ideas of redrefs which had poffeffed the courts of equity. The reafon and neceffities of mankind, arifing from the great change in property by the extenfion of trade and the abolition of military tenures, co-operated in eftablifhing his plan, and enabled him in the courfe of nine years to build a fyftem of jurifprudence and jurifdiction upon wide and rational foundtions; which have alfo been extended and improved by many great men, who have fince prefided in chancery. And from that time to this, the power and bufinefs of the court have increafed to an amazing degree.

FROM this court of equity in chancery, as from the other fuperior courts, an appeal lies to the houfe of peers. But there are thefe 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 noting but only a definitive judgment. 2. That on writs of error the houfe of lords pronounces the judgment, on appeals it gives direction to the curt below to rectify it's own decree.

IX. THE next court that I fhall mention is one that hath no original jurifdiction, but is only a court of appeal, to correct the errors of other jurifdictions. This is the court of exchequer chamber; which was firft erected by ftatute 31 Edw. III. c. 12.

to

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to determine caufes upon writs of error from the common law fide of the court of exchequer. And to that end it confifts of the lord treafurer, the lord chancellor, and the juftices of the king's bench and common pleas. In imitation of which , a fecond court of exchequer chamber was erected by ftatute 27 Eliz. c. 8. confifting of the juftices of the common pleas, and the barons of the echequer; before whom writs of error may be brought to reverfe judgments in certain fuits originally begum in the court of king's bench. Into the court alfo of exchequer chamber, (which then confifts of all the judges of the three fuperior courts and now and then the lord chancellor alfo) are fometimes adjourned from the other courts fuch caufes as the judges upon argument find to be of great weight and difficulty, before any judgment is given opon them in the court below^e .

FROM all the branches of this court of exhequer chamber, a writ of error lies to

X. THE houfe of peers, which is the fupreme court of judicature in the kingdom, having at prefent no original jurifdiction over caufes, but only upon appeals and writs of error; to rectify any injuftice or miftake of the law, committed by the courts below. To this authority they fucceeded of courfe, upon the diffolution of the aula regia. For, as the barons of parliament were conftituent members of that court, and the reft of it's jurifdiction was dealt out to other tribunals, over which the great officers who accompanied thofe barons were refpectively delegated to prefide; it followed, that the right of receiving appeals, and fuperintending all other jurifdictions, ftill remained in that noble affembly, from which every other grat court was derived. They are therefore in all caufes the laft refor, from whofe judgment no farther appeal is permitted; but every fubordinate tribunal muft conform to their determinations. The law repofing an entire confidence in the honour and confcience of the noble perfons who compofe this important affembly, that they

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^e 4 Inft. 119. 4 Bulftr. 146.
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will make themfelves mafters of thofe queftions upon which they undertake to decide; fince upon their decifion all property muft finally depend.

HITHERTO may alfo be referred the tribunal eftablifhed by ftatute 14 Edw. III. c. 5. confifting (though now out of ufe) of one prelate, two earls, and two barons, who are to be chofen at every new parliament, to hear complaints of grievances and delays of jufticve in the king's courts, and to give directions for remedying thefe inconveniences in the courts below. This committee feems to have been eftablifhed, left there fould be a defect of juftice for want of a fupreme court of appeal, during the intermiffion or recefs of parliament; for the ftatute farther directs, that if the difficulty be fo great, that it may not well be determined without affent of parliament, it fhall be brought by the faid prelate, earls, and barons unto the next parliament, who fahll finally determine the fame.

XI. BEFORE I conclude this chapter, I muft alfo mention an eleventh fpecies of courts, of general jurifdiction and ufe, which are derived out of, and act as collateral auxiliaries to, the foregoing; I mean the courts of affife and nifi prius.

THESE are compofed of two or more commiffioners, who are twice in every yerar fent by the king's fpecial commiffion all round the kingdom, (except only London and Middlefex, where courts of nifi prius are holden in and after every term, before the chief or other judge of the feveral fuperior courts) to try by a jury of the refpective counties the truth of fuch matters of fact as are then under difpute in the courts of Weftminfter-hall. Thefe judges of affife came into ufe in the room of the antient juftices in eyre, juftitiarii in itinere; who were appointed by the great council of the relm, A. D. 1176, 22 Hen. II^f , with a delegated power from the king's great court or aula regia, being looked upon as members thereof: and they made their circuit

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^f Seld. Tan. l. 2. § . 5. Spelm. Cod. 329.
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round the kingdom once in feven years for the purpofe of trying caufes ^g. They were afterwards directed by magna carta, c. 12. to be fent into every county once a year to take or try certain actions then called recognition or affifes; the moft difficult of which they are directed to adjourn into the court of common leas to be there determined. The prefent juftices of affife and nifi prius are derived from the ftatute Weftm. 2. 13. Edw. I. c. 30. explained by feveral other acts, particularly the ftatute 14 Edw. III. c. 16. and muft be two of the king's juftices of the one bench or the other, or the chief baron of the exchequer, or the king's ferjeants fworn. They ufually make their circuits in the refpective vacations after Hilary and Trinity terms; affifes being allowed to be taken in the holy time of lent by confent ^h of the bifhops at the king's requeft, as expreffed in ftatute Weftm. 1. 3. Edw. I. c. 51. And it was alfo ufual, during the times of popery, for the prelates to grant annual licences to the juftices of affife to adminifter oaths in holy times: for oaths being of a facred nature, the logic of thofe deluded ages concluded that they muft be of ecclefiaftical cognizance ⁱ. The prudent jealoufy of our anceftors ordained ^k that no man of law fhould be judge of affife in his own country: and a fimilar prohibition is found in the civil law ^l; which has carried this principle fo far, that it is equivalent to the crime of facrilege for a man to be governor of the province in which he was born, or has any civil connexion ^m.

THE judges upon their circuits fit by virtue of five feveral authorities. 1. The commiffion of the peace. 2. A commiffion of oyer and terminer. 3. A commiffion of general goal-delivery. The confideration of all which belongs properly to the fubfequent book of thefe commentaries. But the fourth commiffion is,

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^g Co. Litt. 293.
^h It would have been ftrange to have denied this confent, if, as Whitelocke imagines (on parl. ii. 260.) the hint of our juftices of affife was taken from Samuel's going an annual circuit to judge Ifrael. 2 Sam vii. 16.
^I Inftances hereof may be met with in the appendix to Spelman's original of the terms, and in Parker's ecclefiaftical hift. 209.
^k Stat. 4. Edw. III. c. 2. 8 Ric. II. c. 2. 33 Hen. VIII. c. 24.
^l Ff. 1. 22. 3.
^m c. 9. 29. 4.
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4. A commiffion of affife, directed to the judges and clerk of affife, to take affifes; that is, to take the verdict of a peculiar fpecies of jury called an affife and fummoned for the trial of landed difputes, of which hereafter. The other authority is, 5. That of nifi prius, which as a confequence of the commiffion of affife ⁿ, being annexed to the office of thofe juftices by the ftatute of Weftm. 2. 13 Edw. I. c. 30. And it empowers them to try all queftions of fact iffuing out of the courts at Weftminfter, that are then ripe for trial by jury. The original of the name is this: all caufes commenced in the courts of Weftminfter-hall are by the courfe of the courts appointed to be there tried, on a day fixed in fome Eafter or Michaelmas term, by a jury returned from the county, wherein the caufe of action arifes; but with this provifo, nifi prius juftitiarii ad affifas capiendas venerint; unlefs before the day prefixed the judges of affife come into the county in queftion. This they are fure to do in the vacations preceding each Eafter and Michaelmas terms, and there difpofe of the caufe; which faves much expence and trouble, both to the parties, the jury, and the witneffes.

THESE are the feveral courts of common law and equity, which are of public and general jurifdiction throughout the kingdom. And, upon the whole, we cannot but admire the wife oeconomy and admirable provifion of our anceftors, in fettling the diftribution of juftice in a method fo well calculated for cheapnefs, expedition, and eafe. By the conftitution which they eftablifhed, all trivial debts, and injuries of fmall confequence, were to be recovered or redreffed in every man's own county, hundred, or perhaps parifh. Pleas of freehold, and more important difputes 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 mifdemefnors were to be examined in a court by themfelves; and matters of the revenue in another diftinct jurifdiction. Now indeed, for the eafe of the fubject and greater difpatch of caufes, methods have been found to open all

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^c Salk. 454.
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the three fuperior courts for the redrefs of private wrongs; which have remedied many inconveniences, and yet preferved the forms and boundaries handed down to us from high antiquity. If facts are difputed, they are fent down to be tried in the country by the neighbours; but the law, arifing upon thofe facts, is determined by the judges above: and, if they are miftaken in point of law, there remain in both cafes two fucceffive courts of appeal, to rectify fuch their miftakes. If the rigour of general rules does in any cafe bear hard upon individuals, courts of equity are open to fupply the defects, but not fap the fundamentals, of the law. Laftly, there prefides over al one great court of appeal, which is the laft refort in matters both of law and equity; and which will therefore take care to preferve an uniformity and equilibrium among all the inferior jurifdictions: a court compofed of prelates felected for their piety, and of nobles advanced to that honour for their perfonal merit, or deriving both honour and merit from an illuftrious train fo anceftors; who are formed by their education, interefted by their property, and bound upon their confcience and honour, to be fkilled in the laws of their country. This is a faithful fketch of the Englifh juridical conftitution, as defigned by the mafterly hands of our forefathers. Of which the great original lines are ftill ftrong and vifible; and, if any of it's minuter ftrokes are by the length of time at all obfcured or decayed, they may ftill be with eafe reftored to their priftine vigour: and that not fo much by fanciful alterations and wild experiments (fo frequent in this fertile age) as by clofely adhering to the wifdom of the antient plan, concerted by Alfred and perfected by Edward I; and by attending to the fpirit, without neglecting the forms, of their excellent and venerable inftitutions.
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