mitted by the courts Lelow 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." 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 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. [*57 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 *inconveniences 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. .24 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 ;" 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, A.D. 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.(0) 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 *they had sometimes a more general commission to determine [*58 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, (*) Seld. Jan. 1. 2, 5. Spelm. Cod. 399. (•) Co. Litt. 293.-Anno 1261, justiciarii itinerantes venerunt apud Wigorniam in octavis S. Johannes Baptista;-et totus comitatus eos admittere recusavit, quod septem anni nondum erant elapsi, postquam justiciarii ibidem ultimo sederunt. Annal. Eccl. Wigorn. in Whart. Angl. Sacr. i. 495. (P) Bract. l. 3, tr. 1, c. 11. 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 24 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. 25 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, o that one of such justices be a judge of the king's bench or common pleas, or the king's serjeant sworn.2 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 cog nizance.(g) The prudent jealousy of our ancestors ordained(r) that no ma of law should be judge of assize in his own county, wherein he was born or doth inhabit; 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 *59] properly 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." These, by the course of the courts, (w) are usually appointed to he 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 (9) Instances hereof may be met with in the appendix to Spelman's original of the terms, and in Mr. Parker's Antiquities, 209. () Stat. 4 Edw. III. c. 2. 8 Ric. II. c. 2. 33 Hen. VIII. c. 24. (*) Ff. 1, 22, 3. Salk. 454. 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. 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. 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. 1 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. [*60 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, al trivial debts and injuries of small consequence were to be recovered or redi essed in every man'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 jurisdic tion Now indeed, for the ease of the subject and greater despaten 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. OF COURTS ECCLESIASTICAL, MILITARY, AND MARITIME. BESIDES the several courts which were treated of in the preceding chapter, and in which all injuries are redressed that fall under the cognizance of the common law of England, or that spirit of equity which ought to be its constant attendant, there still remain some other courts of a jurisdiction equally public and general, which take cognizance of other species of injuries of an ecclesiastical, military, and maritime nature; and therefore are properly distinguished by the title of ecclesiastical courts, courts military, and maritime. 1. Before I descend to consider particular ecclesiastical courts, I must first of all in general premise that in the time of our Saxon ancestors there was no sort of distinction between the lay and the ecclesiastical jurisdiction: the county. court was as much a spiritual as a tempors.. tribunal: the rights of the church were ascertained and asserted at the same time, and by the same judges, as the rights of the laity. For this purpose the bishop of the diocese, and the alderman, or in his absence the sheriff of the county, used to sit together in the county-court, and had there the cognizance of all causes, as well ecclesiastical as civil a superior deference being paid to the bishop's opinion in spiritual matters, and to that of the lay judges in temporal.(a) This union of power was *62] very advantageous to them both; the presence of the *bishop added weight and reverence to the sheriff's proceedings; and the authority of the sheriff was equally useful to the bishop, by enforcing obedience to his decrees in such refractory offenders as would otherwise have despised the thunder of mere ecclesiastical censures. But so moderate and rational a plan was wholly inconsistent with those views of ambition that were then forming by the court of Rome. It soon became an established maxim in the papal system of policy, that all ecclesiastical persons and all ecclesiastical causes should be solely and entirely subject to ecclesiastical jurisdiction only; which jurisdiction was supposed to be lodged in the first place and immediately in the pope, by divine indefeasible right and investiture from Christ himself, and derived from the pope to all inferior tribunals. Hence the canon law lays it down as a rule, that "sacerdotes a regibus honorandi sunt, non judicandi ;"(b) and places an emphatic reliance on a fabulous tale which it tells of the emperor Constantine, that when some petitions were brought to him, imploring the aid of his authority against certain of his bishops accused of oppression and injustice, he caused (says the holy canon) the petitions to be burnt in their presence, dismissing them with this valediction, "ite et inter vos causas vestras discutite, quia dignum non est ut nos judicemus Deos." (c) It was not, however, till after the Norman conquest that this doctrine was received in England; when William I. (whose title was warmly espoused by the monasteries, which he liberally endowed, and by the foreign clergy, whom he brought over in shoals from France and Italy and planted in the best preferments of the English church) was at length prevailed upon to establish this fatal encroachment, and separate the ecclesiastical court from the civil: whether actuated by principles of bigotry, or by those of a more refined policy, in order to discountenance the laws of king Edward, abounding with the spirit of Saxon liberty, is not altogether *certain. But the latter, if not the *63] cause, was undoubtedly the consequence, of this separation; for the Saxon laws were soon overborne by the Norman justiciaries, when the countycourt fell into disregard by the bishop's withdrawing his presence, in obedience to the charter of the Conqueror; (d) which prohibited any spiritual cause from being tried in the secular courts, and commanded the suitors to appear before the bishop only, whose decisions were directed to conform to the canon law. (e) King Henry the First, at his accession, among other restorations of the laws of king Edward the Confessor, revived this of the union of the civil and eccle siastical courts.(f) Which was, according to Sir Edward Coke,(g) after the great heat of the conquest was past, only a restitution of the antient law of England. This, however, was ill relished by the popish clergy, who, under the guidance of that arrogant prelate, archbishop Anselm, very early disapproved of a measure that put them on a level with the profane laity, and subjected spiritual men and causes to the inspection of the secular magistrates: and therefore in their synod at Westminster, 3 Hen. I., they ordained that no bishop (*) Celeberrimo huic conventui episcopus et aldermannus inter sunto; quorum alter jura divina, alter humana populum edoceto. LL. Eadgar. c. 5. () Decret. part. 2, caus. 11, qu. 1, c. 41. Ibid. Hale, Hist. C. L. 102. Selden, in Eadm. p. 6, l. 24. 4 Inst. 259. Wilk. LL. Angl. Sax. 292. () Nullus episcopus vel archidiaconus de legibus episcoDalibus amplius in hundret placita teneant, nec causam, que ad regimen animarum pertinet ad judicium secularium hominum adducant: sed quicunque secundum episcopales seges, de quacunque causa vel culpa interpellatus fuerit, ad locum, quem ad hoc episcopus elegerit et nominaverit, veniat; boque de causa sua respondeat; et non secundum hundret, sed secundum canones et episcopales leges, rectum Deo es episcopo suo faciat. () Volo et præcipio, ut omnes de comitatu eant ad comitatus et hundreda, sicut fecerint tempore regis Edwardi. Cart. Hen. I. in Spelm. Cod. vet. legum, 305. And what is here obscurely hinted at is fully explained by his code of laws extant in the red book of the exchequer, though in general but of doubtful authority. Cap. 8. Generalia comitatuum placita certis locis et vicibus teneantur. Intersint autem epis copi, comites, dc.; et agantur primo debita veræ christiani tatis jura, secunda regis placita, prostremo causæ sigulorum dignis satisfactionibus expleantur (@) 2 Inst. 70 |