perpetui, et majores; a latere regis residentes, qui omnium aliorum corrigere tenentur injurias et errores" (e). And it is moreover especially provided in the articuli super cartas (f), that the king's chancellor, and the justices of his bench shall follow him, so that he may have at all times near unto him some that be learned in the laws.

The court of queen's bench takes cognisance both of criminal and civil causes; the former in what is called the * crown side or crown office; [*118] the latter in the plea side of the court. The jurisdiction of the crown side it is not our present business to consider; that will be more properly discussed in the ensuing Volume. On the plea side, or civil branch, this court had originally jurisdiction and cognisance of all actions of trespass or other injury alleged to be committed vi et armis; of actions for forgery of deeds, maintenance, conspiracy, deceit, and actions on the case which alleged falsity or fraud, all of which were deemed to savour of a criminal nature, and made the defendant liable in strictness to pay a fine to the crown, as well as damages to the injured party (g). The origin of the action on the case has been already stated (h), and of this form of action the court claimed cognisance, on the ground that it was for a trespass; and thus assumed jurisdiction over a large class of cases, comprising injuries consequential upon but not directly caused by tort. And gradually it still further extended its jurisdiction to actions of debt, covenant (i), and so forth, by allowing a plaintiff, in the first instance, to complain of a trespass against the defendant; and afterwards, when he had thus brought him into court, permitting the plaintiff to waive his charge of trespass, and to declare against the defendant, for some matter purely civil in its nature (k).

*The actual jurisdiction of the court of queen's bench is very high [* 119] and transcendent. It has cognisance of all personal actions and actions of ejectment, with the various proceedings collateral and ancillary thereto. It is the principal criminal court in the realm. It keeps all inferior criminal jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined there, or prohibit their progress below. It superintends all civil corporations in the kingdom. It commands magistrates and others to do what their duty requires, in every case where there is no specific remedy. It protects the liberty of the subject, by speedy and summary interposition. It is also a court of error (1) from the palatinate courts, and of appeal from those courts for the purposes of the undermentioned statutes (m).

(e) L. 8, c. 10.

(f) 28 Edw. I. c. 5.

ever, and has continued to do so for ages: it having been surmised that the defendant was

(g) Finch, L. 198; 2 Inst. 23; Dyversité arrested for a supposed trespass, which he de Courtes, c. Bank le Roy.

never had in reality committed; and being thus in the custody of the marshal of the court, the plaintiff was held at liberty to proceed against him for any other personal injury; this surmise, of being in the marshal's custody, the defendant was not at liberty to dispute. This fiction was abolished by the stat. 3 Will. 4, c. 39.

(7) 4 Inst. 214, 218, 223; 15 & 16 Vict. c. 76, s. 233.

(m) 17 & 18 Vict. c. 125, s. 102; 23 & 24 Vict. c. 126, s. 42.

Courts of Assize

The courts of assize and nisi prius, which I shall next notice, are derived out of, and act as collateral auxiliaries to, the foregoing. They are composed of two or more commissioners, who are twice at least, in every year, and Nisi Prius. sent by the special commissioner of the crown, all round the kingdom (except London and Middlesex), to try by a jury, matters of fact which are in dispute. These judges of assize came into use in the room of the ancient 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 (o). They were directed by Magna Carta, *c. 12, to be sent into every county [120] once a year, to take or receive the verdict of the jurors or recognitors in certain actions, now abolished, but which were then called recognitions or assizes; the most difficult of which they were 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 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. 1, 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. 1, c. 4 (explained by 12 Edw. 2, 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. 3, c. 16, inquests of nisi prius might be taken before any justice of either bench (though the plea were not depending in his own court), or before the chief baron of the exchequer, if he were a man of the law: or otherwise before the justices of assize, so that one of such justices were a judge of the king's bench or common pleas, or the king's serjeant. The judges usually make their circuits in the respective vacations after Hilary and Trinity terms, and sit by virtue of four several commissions, issued to the clerks of assize, viz., of oyer and terminer, gaol-delivery, assize, and association (q), in order that a sufficient supply of commissioners may never be wanting.

*Such being a brief résumé of the jurisdiction of our superior [* 121 ] courts of law, three points connected with it are especially to be noticed:

1. It is incumbent on each court to entertain and adjudicate upon any suit or matter regularly in contention before it; provided such suit or matter be not

(n) Seld. Jan. 1. 2, s. 5; Spelman, Cod. 329. (0) Co. Litt. 293.-Anno 1261 justiciarii itinerantes venerunt apud Wigorniam in octavis S. Johnnis 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. 1. 3, tr. 1, c. 11.

(q) By 3 Geo. 4, c. 10, it is enacted, that the commission may be opened on the succeeding day to that appointed; and if such Bucceeding day be a Sunday, or any other

day of public rest, then on the next following day, provided the opening of the commission on the appointed day was prevented by the pressure of business elsewhere, or by some unforeseen cause or accident. Upon each record brought from the court of exchequer before the judges of assize, a separate commission was formerly issued by that court; but by stat. 2 & 3 Vict. c. 22, they are authorised on their circuits, without any commission to try causes and take inquisitions of pleas pending in the exchequer.

so frivolous as to involve a mere waste of time in its investigation; nor of such a nature, as to lead to enquiries inconsistent with public decency, or with the dignity of justice: for the rule stated by our ancient writers is non recedant qaærentes à curiâ regis sine remedio (r). (479)

2. Each of our superior courts is bound to keep within the limits of its jurisdiction. The consent of parties would not suffice to make operative a judgment of the court of common pleas on a crown case, or of the court of queen's bench in a real action; because the particular tribunal specified would have no power to entertain the case before it: the whole proceeding would be illusory, and lead to no result in legal contemplation (s). (480)

3. It is not competent to parties, by any stipulation between themselves, to oust the jurisdiction of the courts. The precise meaning, however, of this expression "ousting the jurisdiction of the courts," deserves attention. means, that when a cause of action has accrued, parties cannot by contract say that there shall not be jurisdiction to enforce damages in respect thereof. Parties cannot enter into a contract which gives rise to a right of action for the breach of it, and then withdraw such a case from the jurisdiction of the ordinary tribunals. Parties may, however, enter into a contract, such that no breach of it shall occur until after a reference has been made to arbitration (t). (481)

(r) 2 Inst. 405.

(8) See Lawrence v. Wilcock, 11 Ad. & E. 941. (t) The distinction, supra, may be thus illustrated. If I covenant with A. to do particular acts, and make default, and afterwards it is covenanted between us that any question arising as to breach of covenants shall be referred to arbitration, that latter covenant does not prevent the covenantee from bringing an action. A right of action having accrued, it would be against the policy of the law to give effect to an agreement that such a right should not be enforced through the

medium of the ordinary tribunals. But if I covenant with A., that if I do, or omit to do a certain act, I will pay to him such a sum as T. S. shall award as the amount of damage sustained by him, then until T. S. has made his award, and I have omitted to pay the sum awarded, my covenant has not been broken, and no right of action has arisen against me. Nor does the policy of the law prevent parties from so contracting. Judg ment of Lord Cranworth, C., Scott v. Avery, 5 H. L. Ca. 811; Lowndes v. Earl of Stamford, 18 Q. B. 425.

(479) Courts will not enforce fraudulent and immoral agreements. In such cases, they are bound, in the interest of public justice and from a sense of self-respect, to withhold their sanction and dismiss the parties. Denton v. Irwin, 6 La. Ann. 317. So courts will not lend their aid to foster idle, circuitous, and wasteful litigation. Hyde v. New Orleans, 11 id. 191. But where the court has jurisdiction of the subject-matter and of the parties to the suit, it will render its judgment without waiting to inquire whether either party has sufficient property in the jurisdiction to respond to such judgment. The question as to how this judgment shall be satisfied when he gets it, is for the party who obtains it, and not for the court. March v. Eastern R. R. Co., 40 N. H. 548.

(480) The rule that consent of parties cannot confer jurisdiction in a matter which is excluded by law, is well settled by American authorities. See Andrews v. Wheaton, 23 Conn. 112; Bents v. Graves, 3 McCord (S. C.), 280; Wells v. Reynolds, 1 Treadw. (S. C.) 478; Ormsby v. Lynch, 6 Litt. (Ky.) 303; Randolph County v. Rolls, 18 Ill. 29; McHenry v. Wallen, 2 Yerg. (Tenn.) 441; Cleveland v. Welsh, 4 Mass. 593; Walker v. Rogan, 1 Wis. 597; Bureau County v. Thompson, 39 Ill. 566; Damp v. Dane, 29 Wis. 419; State v. Tappan, id. 664. And the proceedings of any tribunal, not having jurisdiction of the subject-matter which it professes to decide, are void. Collamer v. Page, 35 Vt. 387; Wickes v. Cault, 5 Har. & J. (Md.) 42; Griffith v. Frazier, 8 Cranch, 9; State v. Richmond, 26 N. H. 232. Objection to the jurisdiction of the person may, however, be waived by the act of the party. Ib.; State v. Tappan, 29 Wis. 664; Damp v. Dane, id. 419.

(481) The rule that an agreement to arbitrate is not sufficient to oust a court of law or equity of jurisdiction, is said to be a departure from the general principle that effect should

[*122]

* With regard to the three rules stated as applicable to our superior courts of original or primary jurisdiction, we observe, that they rest on grounds of manifest policy and expediency. Our courts cannot refuse to listen and do justice to a suitor - who in a respectful and becoming manner, and with due regard to the recognised method of procedure, brings before them his complaint. Our courts cannot assume and exercise jurisdiction, even by consent of parties, beyond those limits within which alone they have been authorised and commissioned to do justice. Lastly, it is not compatible with the dignity of our superior courts, that their jurisdiction should be set aside.

The briefest allusion will here suffice to our appellate courts, one principal use of which is to prevent the law from being changed. Were there no such superior tribunals, it would be easy for judges, by construction Appellate courts. and interpretation, to change even a written law; and yet more easy would it be for them to change our customary unwritten law, which depends upon usage solely (u).

The court of exchequer chamber derives its origin from the stats. 31 Edw. 3, st. 1, c. 12 (x), and 27 Eliz. c. 8, and was first established to hear and determine causes brought before it by writ of error, [123 ] from the common law side of the exchequer. The

Exchequer chamber.

*

jurisdiction and constitution of this court were, however, materially altered by the stat. 11 Geo. 4 & 1 Will. 4, c. 70, s. 8, which enacted, that writs of error upon any judgment given by the court of king's bench, common pleas, or exchequer, should thereafter be made returnable only before the judges, or judges and barons, as the case might be, of the other two courts in the exchequer chamber.

Some additional duties have been imposed on this court, by the Common Law Procedure Act, 1854 (y).

Judicial committee of privy council.

Side by side with the court of exchequer chamber may be placed, a court quite differently constituted, the jurisdiction of which is also different, viz., the judicial committee of the privy council. This court, so far as its common law jurisdiction is concerned, besides some peculiar duties in respect of patents and copyright, entertains appeals from our colonies and dependencies; and when it has come to a decision upon any case submitted to it, reports its opinion to the sovereign for approval and confirmation (z).

From the court of exchequer chamber, a writ of of error lies to the house of peers, which is the supreme court of judicature in the kingdom, having at present no original jurisdiction over causes, but jurisdiction only House of Peers. upon appeals and writs of error, to rectify any injustice or mistake

(u) Barnardiston v. Soame, 6 St. Tr. 1094. 1095.

(x) By which enactment it was originally erected, as above stated, to hear causes brought from the court of exchequer.

(y) Sect. 36.

(z) The statutes relating to the constitution of the judicial committee of the privy counsel, and its jurisdiction, are collected in M'Pherson's P. C. Prac. App.

be given to contracts when lawful in themselves, according to their terms and the intent of the parties, and that it will not be extended or applied to new cases not coming within the letter and spirit of the decisions already made. President, etc., of Delaware, etc., Canal Co. v. Penn. Coal Co., 50 N. Y. (5 Sick.) 250; see Hurst v. Litchfield, 39 N. Y. (12 Tiff.) 377; Herrick v. Belknap, 27 Vt. 673.

VOL. II.-14

of the law, committed by the court below. To such 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 [*124] other jurisdictions, still remained in the residue of that noble assembly, from which every other great court was derived (a). The house of lords is therefore, in all home causes, the last resort, from whose judgment no further appeal is permitted. Those members of the house, who alone take part in the hearing of appeals, are, conformably to the established practice, peers who have previously discharged important judicial functions, and bring therefore, to the consideration of questions submitted to them, the very highest attainable amount of legal knowledge, experience, and wisdom. Moreover, in difficult cases, they refer themselves to, but are in no degree bound by, the opinions of the judges, who are summoned by writ to advise them. (482)

The house of lords recognizes and conforms to its own prior decisions, which can only be affected by act of parliament (b). If, indeed, a precedent found amongst the decisions of this tribunal were deemed objectionable, such judgment would probably be treated as a binding authority, in no case, and under no circumstances, differing or distinguishable from those to which it had been applied: so that, practically, its operation would be restricted within very rigid limits.

JURISDICTION OF THE SUPERIOR COURTS OF LAW. WRONGS AFFECTING THE PERSON-REPUTATION-LIBERTY AND RELATIVE RIGHTS.

THE jurisdiction exercised by our superior courts of common law will in this and some ensuing chapters be considered; and in treating of it I shall at first confine myself to such wrongs and breaches of contract as may be committed in the mutual intercourse between subject and subject: which the sovereign, as the fountain of justice, is officially bound to redress in the ordinary forms of law: reserving such injuries or encroachments as may occur between the crown and the subject, to be considered hereafter, since the

(a) As to the appellate jurisdiction of the house of lords, see also stats. 14 Edw. 3, c. 5; 17 & 18 Vict. c. 125, s. 36.

(b) Tommey v. White, 3 H. L. Ca. 49; Wilson v. Wilson, 5 ld. 40, 63; Att.-Gen. v. Dean, &c. of Windsor, 8 Id. 369.

(482) The law governing appellate proceedings in the United States, though founded upon the common law, has, both in the courts of the several States and those of the United States, been to a greater or less extent modified by statutes or reformed codes of procedure. The plan of investing the more permanent branch of the State legislature with high appellate power was tested in the States of New York and New Jersey, but, after an experience of some years, has been abandoned as unsatisfactory.