Commentaries on the Laws of England (1765-1769)
Sir William Blackstone
Of the Public Courts of Common Law And Equity
WE are next to consider the several species and distinctions of courts of justice, which are acknowledged and used in this kingdom. And these are either such as are of public and general jurisdiction throughout the whole realm; or such as are only of a private and special jurisdiction in some particular parts of it. Of the former there are four sorts; the universally established courts of common law and equity; the ecclesiastical courts; the courts military; and courts maritime. And first of such public courts as are courts of common law of equity.
THE policy of our ancient constitution, as regulated and established by the great Alfred, was to bring justice home to every man’s door, by constituting as many courts of judicature as there are manors and townships in the kingdom; wherein injuries were redressed in an easy and expeditious manner, by the suffrage of neighbors and friends. These little courts however communicated with others of a larger jurisdiction, and those with others of a still greater power; ascending gradually from the lowest to the supreme courts, which were respectively constituted to correct the errors of the inferior ones, and to determine such causes as by reason of their weight and difficulty demanded a more solemn discussion. The course of justice flowing in large streams from the king, as the fountain, to his superior courts of record; and being then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed. An institution that seems highly agreeable to the dictates of natural reason, as well as of more enlightened policy; being equally similar to that which prevailed in Mexico and Peru before they were discovered by the Spaniards; and that which was established in the Jewish republic by Moses. In Mexico each town and province had its proper judges, who heard and decided causes, except when the point in litigation was too intricate for their determination; and then it was remitted to the supreme court of the empire, established in the capital, and consisting of twelve judges.1 Peru, according to Garcilasso de Vega (an historian descended from the ancient Incas of that country) was divided into small districts containing ten families each, all registered, and under one magistrate; who had authority to decide little differences and punish petty crimes. Five of these composed a higher class or fifty families; and two of these last composed another called a hundred. Ten hundreds constituted the largest division, consisting of a thousand families, and each division had its separate judge or magistrate, with a proper degree of subordination.2 In like manner we read of Moses; that, finding the sole administration of justice too heavy for him, he “chose able men out of all Israel, such as feared God, men of truth, hating covetousness; and made them heads over the people rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens: and they judged the people at all seasons; the hard causes they brought unto Moses, but every small matter they judged themselves.”3 These inferior courts, at least the name and form of them, still continue in our legal constitution: but as the superior courts of record have in practice obtained a concurrent original jurisdiction with these; and as there is besides a power of removing plaints or actions thither from all the inferior jurisdictions; upon these accounts (among others) it has happened that these petty tribunals have fallen into decay, and almost into oblivion: whether for the better or the worse, may be matter of some speculation; when we consider on the one hand the increase of expense and delay, and on the other the more upright and impartial decision, that follow from this change of jurisdiction.
THE order I shall observe in discoursing on these several courts, constituted for the redress of civil injuries, (for with those of a jurisdiction merely criminal I shall not at present concern myself) will be by beginning with the lowest, and those whose jurisdiction, though public and generally dispersed throughout the kingdom, is yet, (with regard to each particular court) confined to very narrow limits; and so ascending gradually to those of the most extensive and transcendent power.
I. THE lowest, and at the same time the most expeditious, court of justice known to the law of England is the court of piepoudre, curia pedis pulverzati [dusty-foot court]: so called from the dusty feet of the suitors; or according to Sir Edward Coke,4 because justice is there done as speedily as dust can fall from the foot. Upon the same principle that justice among the Jews was administered in the gate of the city,5 that the proceedings might be the more speedy, as well as public. But the etymology given us by a learned modern writer6 is much more ingenious and satisfactory; it being derived, according to him, from pied puldreaux a pedlar, in old french, and therefore signifying the court of such petty chapmen as resort to fairs or markets. It is a court of record, incident to every fair and market, of which the steward of him, who owns or has the toll of the market, is the judge. It was instituted to administer justice for all injuries done in that very fair or market, and not in any preceding one. So that the injury must be done complained of, heard, and determined, within the compass of one and the same day. The court has cognizance of all matters that can possibly arise within the precinct of that fair or market; and the plaintiff must make oath that the cause of an action arose there.7 From this court a writ of error lies, in the nature of an appeal, to the courts at Westminster.8 The reason of its institution seems to have been, to do justice expeditiously among the variety of persons, that resort from distant places to a fair or market: since it is probable that no other inferior court might be able to serve its process, or execute its judgements, on both or perhaps either of the parties; and therefore, unless this court had been erected, the complaint must necessarily have resorted even in the first instance to some superior judicature.
II. THE court-baron is a court incident to every manor in the kingdom, and was held by the steward within the said manor. This court-baron is of two natures:9 the one is customary court, of which we formerly spoke,10 appertaining entirely to the copyholders, in which their estates are transferred by surrender and admittance, and other matters transacted relative to their tenures only The other, of which we now speak, is a court of common law, and it is the court of the barons, by which name the freeholders were sometimes anciently called; for that it is held before the freeholders who owe suit and service to the manor, the steward being rather the registrar than the judge. These courts, though in their nature distinct, are frequently confounded together. The court we are now considering, viz. the freeholders’ court, was composed of the lords tenants, who were the pares of each other, and were bond by their feudal tenure to assist their lord in the dispensation of domestic justice. This was formerly held every three weeks; and its most important business is to determine, by writ of right, all controversies relating to the right of lands within the manor. It may also hold plea of any personal actions, of debt, trespass on the case, or the like, where the debt or damages do not amount to forty shillings.11 Which is the same sum, or three marks, that bounded the jurisdiction of the ancient Gothic courts in their lowest instance, or fierding-courts, so called because four were instituted within every superior district or hundred.12 But the proceedings on a writ of right may be removed into the county court by a precept from the sheriff called a tolt,13 “quia tollit atque eximit causam e curia baronum [because it removes the cause from the court baron].14 And the proceedings in all other actions may be removed into the superior courts by the king’s writs of pone,15 or accedas ad curiam [come to the court], according to the nature of the suit.16 After judgment given, a writ also of false judgment17 lies to the courts at Westminster to rehear and review the cause, and not a writ of error; for this is not a court of record: and therefore in all these writs of removal, the first direction given is to cause the plaint to be recorded, recordari facias loquelam [cause the plaint to be recorded].
III. A HUNDRED court is only a larger court-baron, being held for all the inhabitants of a particular hundred instead of a manor. The free suitors are here also the judges and the steward the registrar, as in the case of a court baron, It is likewise no court of record; resembling the former in all points, except that in point of territory it is of a greater jurisdiction.18 This is said by Sir Edward Coke to have been derived out of the county court for the case of the people, that they might have justice done to them at their own doors, without any charge or loss of time:19 but its institution was probably coeval with that of hundreds themselves, which were formerly observed20 to have been introduced though not invented by Alfred, being derived from the polity of the ancient Germans. The centeni, we may remember were the principal inhabitants of district composed of different villages, originally in number an hundred, but afterwards only called by that name;21 and who probably gave the same denomination to the district out of which they were chosen. Caesar speaks positively of the judicial power exercised in their hundred-courts and courts-baron. “Principes regionum, atque pagorum,” (which we may fairly construe, the lords of hundred and manors) inter suos jus dicunt, controversiasque minuunt” [“declare the law among dependents, and abate controversies”].22 And Tacitus, who had examined their constitution 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 themselves a share in the determination. “Eliguntur in conciliis et principes, qui jura per pagos vicosque reddunt: centeni singulis, ex plebe comites, consilium simul et auctoritas, adsunt.”23 [“Lords are chosen in their councils who administer justice through towns and districts. The jury for each hundred are from the people, having both council and authority.”] This hundred-court was denominated haereda in the Gothic constitution.24 But this court, as causes are equally liable to removal from hence, as from the common court-baron, and by the same writs, and may also be reviewed by writ of false judgment, is therefore fallen into equal disuse with regard to the trial of actions.
IV. THE county court is a court incident to the jurisdiction of the sheriff. It is not a court of record, but may hold pleas of debt or damages under the value of forty shillings.25 Over some of which causes these inferior courts have, by the express words of the statute of Gloucester,26 a jurisdiction totally exclusive of the king’s superior courts. For in order to be entitled to sue an action of trespass for goods before the king’s justiciars, the plaintiff is directed to make affidavit that the cause of action does really and bona fide amount to 40 s: which affidavit is now unaccountably disued,27 except in the court of exchequer. The statute also 43 Eliz. c. 6. which giver the judges in all personal actions, where the jury assess less damages than 40 s, a power to certify the same and abridge the plaintiff of his full costs, was also meant to prevent vexation by litigious plaintiffs; who, for purposes of mere oppression, might be inclinable to institute suits in the superior courts for injuries of a trifling value. The county court may also hold plea of many real actions, and of all personal actions to any amount, by virtue of a special writ called a justicies; which is a writ empowering the sheriff for the sake of dispatch to do the same justice in his county court, as might otherwise be had at Westminster.28 The freeholders of the county are the real judges in this court, and the sheriff is the ministerial officer. The great conflux of freeholders, which are supposed always to attend at the county court, (which Spelman calls forum plebeiae justitiae et theatrum comitivae potestatis [justice court for the people and theater of the county’s power]29) is the reason why all acts of parliament at the end of every session were wont to be there published by the sheriff; why all outlawries of absconding offenders are there proclaimed; and why all popular elections which the freeholders are to make, as formerly of sheriffs and conservators of the peace, and still of coroners, verderors, and knights of the shire, must ever be made in pleno comitatu, or, in full county court. By the statute 2 Edw. VI. c. 25. no county court shall be adjourned longer than for one month, consisting of twenty-eight days. And this was also the ancient usage, as appears from the laws of king Edward the elder:30 “praepositus” (that is, the sheriff) “ad quartam circiter septimanam frequentem populi concionem celebrato: cuique jus dicito; litesque singulas dirimito.” [“Let the sheriff hold a full assembly of the people about once a month: declare the law to every one; and severally determine suits.”] In those times the county court was a court of great dignity and splendor, the bishop and the ealdorman (or earl) with the principal men of the shire sitting therein to administer justice both in lay and ecclesiastical causes.31 But its dignity was much impaired, when the bishop was prohibited and the earl neglected to attend it. And, in modern times, as proceedings are removable from hence into the king’s, as proceedings are removable from hence into the king’s superior courts, by writ of pone or recordare,32 in the same manner as from hundred-courts, and courts-baron; and as the same writ of false judgment may be had, in nature of a writ of error; this has occasioned the same disuse of bringing actions therein.
THESE are the several species of common law courts, which though dispersed universally throughout the realm are nevertheless of a partial jurisdiction and confined to particular districts: yet communicating with, and as it were members of, the superior courts of a more extended and general nature; which are calculated for the administration of redress not in any one lordship, hundred, or county only, but throughout the whole kingdom at large. Of which sort is
V. The court of common pleas, or, as it is frequently termed in law, the court of common bench.
BY the ancient Saxon constitution there was only one superior court of justice in the kingdom: and that had cognizance both of civil and spiritual causes; viz. the wittena-gemote, or general council, which assembled annually or oftener, wherever the king kept his Easter, Christmas, or Whitsontide, as well to do private justice as to consult upon public business. At the conquest the ecclesiastical jurisdiction was diverted into another channel; and the conqueror, fearing danger from these annual parliaments, contrived also to separate their ministerial power, as judges, from their deliberative, as counselors to the crown. He therefore established a constant court in his own shall, thence called by Bracton33 and other ancient authors aula regia or aula regis [king’s bench]. This court was composed of the king’s great officers of the state resident in his palace, and usually attendant on his person: such as the lord high constable and lord mareschal [marshal], who chiefly presided in matters of honor and of arms; determining according to the law military and the law of nations. Besides these there were the lord high steward, and lord great chamberlain; the steward of the household; the lord chancellor, whose peculiar business it was to keep the king’s seal and examine all such writs, grants, and letters, as were to pass under that authority; and the lord high treasurer, who was the principal adviser in all matters relating to the revenue. These high officers were assisted by certain persons learned in the laws, who were called the king’s justiciars or justices; and by the greater barons of parliament, all of whom had a seat in the aula regia, and formed a kind of court of appeal, or rather of advice, in matters of great moment and difficulty. All these in their several departments transacted all secular business both criminal and civil, and likewise the matters of the revenue: and over all presided one special magistrate, called the chief justiciar or capitalis justiciarius totius Angliae [chief justice of all England]; who was also the principal minister of state, the second man in the kingdom, and by virtue of his office guardian of the realm in the king’s absence. And this officer it was who principally determined all the vast variety of causes that arose in this extensive jurisdiction; and from the plenitude of his power grew at length both obnoxious to the people and dangerous to the government which employed him.34
THIS great universal court being bound to follow the king’s household in all his progresses and expeditions, the trial of common causes therein was found very burdensome to the subject. Wherefore king John, who dreaded also the power of the justiciar, very readily consented to that article which now forms the eleventh chapter of Magna Carta, and enacts “that communia placita non sequantur curiam regis, sed teneantur in aliquo loco certo.” [“Let not the common pleas follow the king’s court, but be held in some fixed place.”] This certain place was established in Westminster-hall, the place where the aula regis originally sat when the king resided in that city; and there it has ever since continued. And the court being thus rendered fixed and stationary, the judges became so too, and a chief with other justices of the common pleas was thereupon appointed; with jurisdiction to hear and determine all pleas of land, and injuries merely civil between subject and subject. Which critical establishment of this principal court of common law, at that particular juncture and that particular place, gave rise to the inns of court in its neighborhood; and thereby collecting together the whole body of the common lawyers, enabled the law itself to withstand the attacks of the canonists and civilians, who labored to extirpate and destroy it.35 This precedent was soon after copied by king Philip the fair in France, who about the year 1302 fixed the parliament of Paris to abide constantly in that metropolis; which before used to follow the person of the king, wherever he went, and in which he himself used frequently to decide the causes that were there depending: but all were then referred to the sole cognizance of the parliament and its learned judges.36 And thus also in 1495 the emperor Maximilian I fixed the imperial chamber (which before always traveled with the court and household) to be constantly held at Worms, from whence it was afterwards translated to Spire.37
THE aula regia being thus stripped of so considerable a branch of its jurisdiction, and the power of the chief justiciar being also considerably curbed by many articles in the great charter, the authority of both began to decline apace under the long and troublesome reign of king Henry III. And, in farther pursuance of this example, the other several office of the chief justiciar were under Edward the first (who new-modeled the whole frame of our judicial polity) subdivided and broken into distinct courts of judicature. A court of chivalry was erected, over which the constable and mareschal presided; as did the steward of the household over another, constituted to regulate the king’s domestic servants. The high steward, with the barons of parliament, formed an august tribunal for the trail of delinquent peers; and the barons reserved to themselves in parliament the right of reviewing the sentences of other courts in the last resort. The distribution of common justice between man and man was thrown into so provident an order, that the great judicial officers were made to form a check upon each other: the court of chancery issuing all original writs under the great seal to the other courts; the common pleas being allowed to determine all causes between private subjects; the exchequer managing the king’s revenue; and the court of king’s bench retaining all the jurisdiction which was not cantoned out to other courts, and particularly the superintendence of all the rest by way of appeal; and the sole cognizance of pleas of the crown or criminal causes. For pleas of suits are regularly divided into two sorts; pleas of the crown, which comprehend all crimes and misdemeanors, wherein the king (on behalf of the public) is the plaintiff; and common pleas, which include all civil actions depending between subject and subject. The former of these were the proper object of the jurisdiction of the court of king’s bench; the latter of the court of common pleas. Which is a court of record, and is styled by Sir Edward Coke38 the lock and key of the common law; for herein only can real actions, that is, actions which concern the right of freehold or the realty, be originally brought: and all other, or personal, pleas between man and man are likewise here determined; though in some of them the king’s bench has also a concurrent authority.
THE judges of this court are at present39 four in number, one chief and three puisnè [younger] justices, created by the king’s letters patent, who sit every day in the four terms to hear and determine all matters of law arising in civil causes, whether real, personal or mixed and compounded of both. These it takes cognizance of, as well originally, as upon removal from the inferior courts before-mentioned. But a writ of error, in the nature of an appeal, lies from this court into the court of king’s bench.
VI. THE court of king’s bench (so called because the king used formerly to sit there in person,40 the style of the court still being coram ipso rege [before the king himself]) is the supreme court of common law in the kingdom, consisting of a chief justice and three puisnè justices, who are by their office the sovereign conservators of the peace and supreme coroners of the land. Yet, though the king himself used to sit in this court, and still is supposed so to do; he did not, neither by law is he empowered41 to, determine any cause or motion, but by the mouth of his judges, to whom he has committed his whole judicial authority.42
THIS court (which as we have said) is the remnant of the aula regia, is not, nor can be, from the very nature and constitution of it, fixed to any certain place, but may follow the king’s court wherever it goes; for which reason all process issuing out of this court in the king’s name is returnable “ubicunque fuerimus in Anglia” [“wherever we are in England”]. It has indeed, for some centuries past, usually sat at Westminster, being an ancient palace of the crown; but might remove with the king to York or Exeter, if he thought proper to command it. And we find that, after Edward I had conquered Scotland, it actually sat at Roxburgh.43 And this moveable quality, as well as its dignity and power, are fully expressed by Bracton, when he says that the justices of this court are “capitales, generales, perpetui, et majores; a latere regis residentes; qui omnium aliorum corrigere tenentur injurias et errores.”44 [“Chief, general, perpetual, and elder; accompanying the king, who are appointed to redress the injuries and correct the errors of all others.”] And it is moreover especially provided in the articuli super cartas [articles upon the charters]45 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 jurisdiction of this court is very high and transcendent. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined here, or prohibit their progress below. It superintends all civil corporations in the kingdom. It commands magistrates and others to do what their duty requires, in every case where there is no other specific remedy. It protects the liberty of the subject, by speedy and summary interposition. It takes cognizance both of criminal and civil causes; the former in what is called the crown-side or crown-office; the latter in the plea-side of the court. The jurisdiction of the crown-side it is not our present business to consider: that will be more properly discussed in the ensuing volume. But on the plea-side, or civil branch, it has an original jurisdiction and cognizance of all trespasses, and other injuries, alleged to be committed vi et armis [by force and arms]: which, being a breach of the peace, favor of a criminal nature although the action is brought for a civil remedy; and for which the defendant ought in strictness to pay a fine to the king, as well as damages to the injured party.46 This court might likewise, upon the division of the aula regia, have originally held plea of any other civil action whatsoever, (excepting actions real, which are new very seldom in use) provided the defendant was an officer of the court; or in the custody of the marshal, or prison-keeper, of this court, for a breach of the peace or any other offense.47 In process of time, by a fiction, this court began to hold plea of all personal actions whatsoever, and has continued to do so for ages:48 it being surmised that the defendant is arrested for a supposed trespass, which he never has in reality committed; and being thus in the custody of the marshal of this court, the plaintiff is at liberty to proceed against him for any other personal injury: which surmise, of being in the marshal’s custody, the defendant is not at liberty to dispute.49 And these fictions of law, though at first they may startle the student, he will find upon farther consideration to be highly beneficial and useful: especially as this maxim is ever invariably observed, that no fiction shall extend to work an injury; its proper operation being to prevent a mischief, or remedy an inconvenience, that might result from the general rule of law.50 So true is it, that in fictione juris semper subsistit aequitas [all legal fictions are founded in equity].51 In the present case, it gives the suitor his choice of more than one tribunal, before which he may institute his action; and prevents the circuity and delay of justice, by allowing that suit to be originally, and in the first instance, commenced in this court, which after a determination in another, might ultimately be brought before it on a writ of error.
FOR this court is likewise a court of appeal, into which may be removed by writ of error all determinations of the court of common pleas, and of all inferior courts of record in England: and to which a writ of error lies also from the court of king’s bench in Ireland. Yet even this so high and honorable court is not the dernier resort [last resort] of the subject; for if he be not satisfied with any determination here, he may remove it by writ of error into the house of lords, or the court of exchequer chamber, as the case may happen, according to the nature of the suit, and the manner in which it has been prosecuted.
VII. THE court of exchequer is inferior in rank not only to the court of king’s bench, but to the common pleas also: but I have chosen to consider it in this order, on account of its double capacity, as a court of law and a court of equity also. It is a very ancient court of record, set up by William the conqueror,52 as a part of the aula regia,53 though regulated and reduced to its present order by king Edward I;54 and intended principally to order the revenues of the crown, and to recover the king’s debts and duties.55 It is called the exchequer, scaccharium, from the checked cloth, resembling a chess-board, which covers the table there; and on which, when certain of the king’s accounts are made up, the sums are marked and scored with counters. It consists of two divisions: the receipt of the exchequer, which manages the royal revenue, and with which these commentaries have no concern; and the court or judicial part of it, which is again subdivided into a court of equity, and a court of common law.
THE court of equity is held in the exchequer chamber before the lord treasurer, the chancellor of the exchequer, the chief baron, and three puisnè ones. These Mr. Selden conjectures56to have anciently been made out of such as were barons of the kingdom, or parliamentary barons; and thence to have derived their name: which conjecture receives great strength from Bracton’s explanation of magna charta, c. 14. which directs that the earls and barons be amerced by their peers; that is, says he, by the barons of the exchequer.57 The primary and original business of this court is to call the king’s debtors to account by bill filed by the attorney general; and to recover any lands, tenements, or hereditaments, any goods, chattels, or other profits or benefits, belonging to the crown. So that by their original constitution the jurisdiction of the courts of common pleas, king’s bench, and exchequer, was entirely separate and distinct; the common pleas being intended to decide all controversies between subject and subject; the king’s bench to correct all crimes and misdemeanors that amount to a breach of the peace, the king being then plaintiff, as such offenses are in open derogation of the jura regalia [royal rights] of his crown; and the exchequer to adjust and recover his revenue, wherein the king also is plaintiff, as the withholding and non-payment thereof is an injury to his jura fiscalia [royal revenue]. But, as by fiction almost all sorts of civil actions are now allowed to be brought in the king’s bench, in like manner by another fiction all kinds of personal suits may be prosecuted in the court of exchequer. For as all the officers and ministers of this court have, like those of other superior courts, the privilege of suing and being sued only in their own court; so also the king’s debtors, and farmers, and all accountants of the exchequer, are privileged to sue and implead all manner of persons in the same court of equity, that they themselves are called into. They have likewise privilege to sue and implead one another, or any stranger, in the same kind of common law actions (where the personalty only is concerned) as are prosecuted in the court of common pleas.
THIS gives original to the common law part of their jurisdiction, which was established merely for the benefit of the king’s accountants, and is exercised by the barons only the exchequer, and not the treasurer or chancellor. The writ upon which all proceedings here are grounded is called a quo minus: in which the plaintiff suggests that he is the king’s farmer or debtor, and that the defendant has done him the injury or damage complained of; quo minus sufficiens existit, by which he is the less able, to pay the king his debt or rent. And these suits are expressly directed, by what is called the statute of Rutland,58 to be confined to such matters only as specially concern the king or his ministers of the exchequer. And by the articuli super cartas59 it is enacted, that no common pleas be thenceforth held in the exchequer, contrary to the form of the great charter. But now by the suggestion of privilege, any person may be admitted to sue in the exchequer as well as the king’s accountant. The surmise, of being debtor to the king, is therefore become matter of form and mere words of course, and the court is open to all the nation equally. The same holds with regard to the equity side of the court: for there any person may file a bill against another upon a bare suggestion that he is the kings accountant; but whether he is so, or not, is never controverted. In this court, on the equity side, the clergy have long used to exhibit their bills for the non-payment of tithes; in-which case the surmise of being the king’s debtor is no fiction, they being bound to pay him their first fruits, and annual tenths. But the chancery has of late years obtained a large share in this business.
AN appeal from the equity side of this court lies immediately to the house of peers; but from the common law side, in pursuance of the statute 31 Edw. III. c. 12. a writ of error must be first brought into the court of exchequer chamber. And from their determination there lies, in the dernier resort, a writ of error to the house of lords.
VIII. THE high court of chancery is the only remaining, and in matters of civil property by much the most important of any, of the king’s superior and original courts of justice. It has its name of chancery, cancellaria, from the judge who presides here, the lord chancellor or cancellarius; who, Sir Edward Coke tells us, is so termed a cancellando, from cancelling the king’s letters patents when granted contrary to law, which is the highest point of his jurisdiction.60 But the office and name of chancellor (however derived) was certainly known to the courts of the Roman emperors; where originally it seems to have signified a chief scribe or secretary, who was afterwards invested with several judicial powers, and a general superintendency over the rest of the officers of the prince. From the Roman empire it passed to the Roman church, ever emulous of imperial state; and hence every bishop has to this day his chancellor, the principal judge of his consistory. And when the modern kingdoms of Europe were established upon the ruins of the empire, almost every state preserved its chancellor, with different jurisdictions and dignities, according to their different constitutions. But in all of them he seems to have had the supervision of all charter, letters, and such other public instruments of the crown, as were authenticated in the most solemn manner; and therefore, when seals came in use, he had always the custody of the king’s great seal. So that the office of chancellor, or lord keeper, (whose authority by statute 5 Eliz. c. 18. is declared to be exactly the same) is with us at this day created by the mere delivery of the king’s great seal into his custody:61 whereby he becomes, without writ or patent, an officer of the greatest weight and power of any now subsisting in the kingdom; and superior in point of precedency to every temporal lord.62 He is privy counselor by his office, and, according to lord chancellor Ellensmere,63 prolocutor of the house of lords by prescription. To him belongs the appointment of all justices of the peace throughout the kingdom. Being formerly usually an ecclesiastic, (for none else were them capable of an office so conversant in writings) and presiding over the royal chapel,64 he became keeper of the king’s conscience; visitor, in right of the king, of all hospitals and colleges of the king’s foundation; and patron of all the king’s livings under the value of 20£ per annum in the king’s books. He is the general guardian of all infants, idiots, and lunatics; and has the general superintendence of all charitable uses in the kingdom. And all this, over and above the vast and extensive jurisdiction which he exercises in his judicial capacity in the court of chancery: wherein, as in the exchequer, there are two distinct tribunals; the one ordinary, being a court of common law; the other extraordinary, being a court of equity.
THE ordinary legal court is much more ancient than the court of equity. Its jurisdiction is to hold plea upon a scire facias [show cause] to repeal and cancel the king’s letters patent, when made against law, or upon untrue suggestions; and to hold plea of petitions, monstrans de droit [showing of right], traverses of offices, and the like; when the king has been advised to do any act, or is put in possession of any lands or goods, in prejudice of a subject’s right.65 On proof of which, as the king can never be supposed intentionally to do any wrong, the law questions not but he will immediately redress the injury; and refers that conscientious task to the chancellor, the keeper of his conscience. It also appertains to this court to hold plea of all personal actions, where any officer or minister of the court is a party.66 It might likewise hold plea (by scire facias) of partitions of lands in coparcenary,67 and of dower,68 where any ward of the crown was concerned in interest, so long as the military tenures subsisted: as it now may also do of the tithes of forest land, where granted by the king and claimed by a stranger against the grantee of the crown;69 and of executions on statutes, or recognizances in nature thereof by the statute 23 Hen. VIII. c. 6.70But if any cause comes to issue in this court, that is, if any fact be disputed between the parties, the chancellor cannot try it, having no power to summon a jury; but must deliver the record propria manu [by his own hand] into the court of king’s bench, where it shall be tired by the country, and judgment shall be there given thereon.71 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:72 though so little is usually done on the common law side of the court, that I have met with no traces of any writ of error73being actually brought, since the fourteenth year of queen Elizabeth, A. B. 1572.
IN this ordinary, or legal, court is also kept the officina justitiae [storehouse of justice]: out of which all original writs that pass under the great seal, all commissions of charitable uses, sewers, bankruptcy, idiocy, lunacy, and the like, do issue; and for which it is always open to the subject, who may there at any time demand and have, ex debito justitiae [as due to justice], any writ that his occasions may call for. These writs (relating to the business of the subject) and the returns to them were, according to the simplicity of ancient times, originally kept in a hamper, in hanaperio; and the other (relating to such matters wherein the crown is immediately or mediately concerned) were preserved in a little sack or bag, in parva baga; and thence has arisen the distinction of the hanaper office, and petty bag office, which both belong to the common law court in chancery.
BUT the extraordinary court, or court of equity, is now become the court of the greatest judicial consequence. This distinction between law and equity, as administered in different courts, is not a present known, nor seems to have ever been known, in any other country at any time:74 and yet the difference of one from the other, when administered by the same tribunal, was perfectly familiar to the Romans;75 the jus praetorium, or discretion of the praetor, being distinct from the leges or standing laws:76 but the power of both centered in one and the same magistrate, who was equally entrusted to pronounce the rule of law, and to apply it to particular cases by the principles of equity. With us too, the aula regia, which was the supreme court of judicature, undoubtedly administered equal justice according to the rules of both or either, as the case might chance to require: and, when that was broken to pieces, the idea of a court of equity, as distinguished from a court of law, did not subsist in the original plan of partition. For though equity is mentioned by Bracton77as a thing contrasted to strict law, yet neither in that writer, nor in Glanvil or Fleta, nor yet in Britton (composed under the auspices and in the name of Edward I, and treating particularly of courts and their several jurisdictions) is there a syllable to be found relating to the equitable jurisdiction of the court of chancery. It seems therefore probable, that when the courts of law, proceeding merely upon the ground of the king’s original writs and confining themselves strictly to that bottom, gave a harsh or imperfect judgment, the application for redress used to be to the king in person assisted by his privy council, (from whence also arose the jurisdiction of the court of requests,78 which was virtually abolished by the statute 16 Car. I. c. 10.) and they were wont to refer the matter either to the chancellor and a select committee, or by degrees to the chancellor only, who mitigated the severity or supplied the defects of the judgments pronounced in the courts of law, upon weighing the circumstances of the case. This was the custom not only among our Saxon ancestors, before the institution of the aula regia,79 but also after its dissolution, in the reign of king Edward I,80 if not that of Henry II.81
IN these early times the chief juridical employment of the chancellor must have been in devising new writs, directed to the courts of common law, to give remedy in cases where none was before administered. And to quicken the diligence of the clerks in the chancery, who were too much attached to ancient precedents, it is provided by statute Westm. 2. 13. Edw. I. c. 24. that “whensoever from thenceforth in one case a writ shall be found in the chancery, and in a like case falling under the same right and ‘requiring like remedy no precedent of a writ can be produced, the clerks in chancery shall agree in forming a new one: and, if they cannot agree, it shall be adjourned to the next parliament, where a writ shall be framed by consent of the learned in the law82lest it happen for the future that the court of our lord the king be deficient in doing justice to the suitors.” And this accounts for the very great variety of writs of trespass on the case, to be met with in the register, whereby the suitor had ready relief according to the exigency of his business, and adapted to the specialty, reason, and equity of his very case.83 Which provision (with a little accuracy in the clerks of the chancery, and a little liberality in the judges, by extending rather than narrowing the remedial effects of the writ) might have effectually answered all the purposes of a court of equity;84 except that of obtaining a discovery by the oath of the defendant.
BUT when, about the end of the reign of king Edward III, uses of land were introduced,85 and, though totally discountenanced by the courts of common law, were considered as fiduciary deposits and binding in conscience by the clergy, the separate jurisdiction of the chancery as a court of equity began to be established;86 and John Waltham, who was bishop of Salisbury and chancellor to king Richard II, by a strained interpretation of the above-mentioned statute of Westm. 2. devised the writ of subpoena, returnable in the court of chancery only, to make the feoffee to uses accountable to his cestuy que use: which process was afterwards extended to other matters wholly determinable at the common law, upon false and fictitious suggestions; for which therefore the chancellor himself is by statute 17 Ric. II. c. 6. directed to give damages to the parties unjustly aggrieved. But as the clergy, so early as the reign of king Stephen, had attempted to turn their ecclesiastical courts into courts of equity, by entertaining suits pro laesione fidei [for breach of faith], as a spiritual offense against conscience, in case of nonpayment of debts or any breach of civil contracts;87 till checked by the constitutions of Clarendon,88 which declared that “placita de debitis, quae fide interposita debentur, vel absque interpositione fidei, sint in justicia regis” [“let those pleas of debts, which are due with or without the interposition of a trust, be in the king’s jurisdiction”]: therefore probably the ecclesiastical chancellors, who then held the seal, were remiss in abridging their own new-acquired jurisdiction; especially as the spiritual courts continued to grasp at the same authority as before, in suits pro laesione fidei, so late as the fifteenth century,89 till finally prohibited by the unanimous concurrence of all the judges. However, it appears from the parliament rolls,90 that in the reigns of Henry IV and V the commons were repeatedly urgent to have the writ of subpoena entirely suppressed, as being a novelty devised by the subtlety of chancellor Waltham, against the form of the common law; whereby no plea could be determined, unless by examination and oath of the parties, according to the form of the law civil, and the law of holy church, in subversion of the common law. But though Henry IV, being then hardly warm in his throne, gave a palliating answer to their petitions, and actually passed the statute 4 Hen. IV. c. 23. whereby judgments at law are declared irrevocable unless by attaint or writ of error, yet his son put a negative at once upon their whole application: and in Edward IV’ time, the process by bill and subpoena was become the daily practice of the court.91
BUT this did not extend very far: for in the ancient treatise, entitled diversite des courtes,92 supposed to be written very early in the sixteenth century, we have a catalogue of the matters of conscience then cognizable by subpoena in chancery, which fall within a very narrow compass. No regular judicial system at that time prevailed in the court; but the suitor, when he thought himself aggrieved, found a desultory and uncertain remedy, according to the private opinion of the chancellor, who was generally an ecclesiastic, or sometimes (though rarely) a statesman: no lawyer having sat in the court of chancery from the times of the chief justices Thorpe and Knyvet, successively chancellors to king Edward III in 1372 and 1373,93 to the promotion of Sir Thomas More by king Henry III in 1530. After which the great seal was indiscriminately committed to the custody of lawyers, or courtiers,94 or churchmen,95 according as the convenience of the times and the disposition of the prince required, til sergeant Puckering was made lord keeper in 1592: from which time to the present the court of chancery has always been filled by a lawyer, excepting the interval from 1621 to 1625, when the seal was entrusted to Dr Williams, then dean of Westminster, but afterwards bishop of Lincoln; who had been chaplain to lord Ellesmere, when chancellor.96
IN the time of lord Ellesmere (A. D. 1616.) arose that notable dispute between the courts of law and equity, set on foot by Sir Edward Coke, then chief justice of the court of king’s bench; whether a court of equity could give relief after or against a judgment at the common law. This contest was so warmly carried on, that indictments were preferred against the suitors, the solicitors, the counsel, and even a master in chancery, for having incurred a praemunire [forewarning], by questioning in a court of equity a judgment in the court of king’s bench, obtained by gross fraud and imposition.97 This matter, being brought before the king, was by him referred to his learned counsel for their advice and opinion; who reported so strongly in favor of the courts of equity,98 that his majesty gave judgment on their behalf: but, not contented with the irrefragable reasons and precedents produced by his counsel, (for the chief justice was clearly in the wrong) he chose rather to decide the question by referring it to the plenitude of his royal prerogative.99 Sir Edward Coke submitted to the decision,100 and thereby made atonement for his error: but this struggle, together with the business of commendams (in which he acted a very noble part101) and his controlling the commissioners of sewers,102 were the open and avowed causes,103 first of his suspension, and soon after of his removal, from his office.
LORD Bacon, who succeeded lord Ellesmere, reduced the practice of the court into a more regular system; but dit not sit long enough to effect any considerable revolution in the science itself: and few of his decrees which have reached us are of any great consequence to posterity. His successors, in the reign of Charles I, little to improve upon his plan: and even after the restoratin the seal was committed to the earl of Clarendon, who had withdrawn from practice as a lawyer near twenty years and afterwards to the earl of Shafsbury, who had never practiced at all. Sir Heneage Finch, who succeeded in 1673 and became afterwards earl of Nottingham, was a person of the greatest abilities and most uncorrupted integrity; a thorough master and zealous defender of the laws and constitution of his country; and endued with a pervading genius, that enabled him to discover and to pursue the true spirit of justice, notwithstanding the embarafsments raised by the narrow and technical notions which then prevalied in the courts of law, and the imperfect ideas of redress which had possessed the courts of equity. The reason and necessities of mankind, arising from the great change in property by the extension of trade and the abolition of military tenures, cooperated in establishing his plan, and enabled him in the course of nine years to build a system of jurisprudence and jurisdiction upon wide and rational foundtions; which have also been extended and improved by many great men, who have since presided in chancery. And from that time to this, the power and business of the court have increased to an amazing degree.
FROM this court of equity in chancery, as from the other superior courts, an appeal lies to the house of peers. But there are these differences between appeals from a court of equity, and writs of error from a court of law: 1. That the former may be brought upon any interlocutory matter, the latter upon noting but only a definitive judgment. 2. That on writs of error the house of lords pronounces the judgment, on appeals it gives direction to the curt below to rectify its own decree.
IX. THE next court that I shall mention is one that has no original jurisdiction, but is only a court of appeal, to correct the errors of other jurisdictions. This is the court of exchequer chamber; which was first erected by statute 31 Edw. III. c. 12. to determine causes upon writs of error from the common law side of the court of exchequer. And to that end it consists of the lord treasurer, the lord chancellor, and the justices of the king’s bench and common pleas. In imitation of which, a second court of exchequer chamber was erected by statute 27 Eliz. c. 8. consisting of the justices of the common pleas, and the barons of the exchequer; before whom writs of error may be brought to reverse judgments in certain suits originally begum in the court of king’s bench. Into the court also of exchequer chamber, (which then consists of all the judges of the three superior courts and now and then the lord chancellor also) are sometimes adjourned from the other courts such causes as the judges upon argument find to be of great weight and difficulty, before any judgment is given upon them in the court below.104
FROM all the branches of this court of exchequer chamber, a writ of error lies to
X. THE house of peers, which is the supreme court of judicature in the kingdom, having at present no original jurisdiction over causes, but only upon appeals and writs of error; to rectify any injustice or mistake of the law, committed by the courts below. To this authority they 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 that noble assembly, from which every other great court was derived. They are therefore in all causes the last resort, from whose judgment no farther appeal is permitted; but every subordinate tribunal must conform to their determinations. The law reposing an entire confidence in the honor and conscience of the noble persons who compose this important assembly, that they will make themselves masters of those questions upon which they undertake to decide; 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 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 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 the intermission or recess of parliament; for the statute farther 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 [unless before].
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 only London and Middlesex, where courts of nisi prius are held in and after every term, before the chief or other judge of the several superior courts) 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 ancient justices in eyre [circuit judge], justitiarii in itinere [itinerant judges]; who were appointed by the great council of the realm, A. D. 1176, 22 Hen. II,105 with a delegated power from the king’s great court or aula regia, being looked upon as members thereof: and they made their circuit round the kingdom once in seven years for the purpose of trying causes.106 They were afterwards directed by Magna Carta, c. 12. to be sent into every county once a year to take or try certain actions then called recognition or assizes; the most difficult of which they are directed to adjourn into the court of common pleas to be there determined. The present justices of assize and nisi prius are derived from the statute Westm. 2. 13. Edw. I. c. 30. explained by several other acts, particularly the statute 14 Edw. III. c. 16. and must be two of the king’s justices of the one bench or the other, or the chief baron of the exchequer, or the king’s sergeants sworn. 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 consent107 of the bishops at the king’s request, as expressed in statute Westm. 1. 3. Edw. I. c. 51. And it was also usual, during the times of popery, for the prelates to grant annual licenses to the justices of assize to administer oaths in holy times: for oaths being of a sacred nature, the logic of those deluded ages concluded that they must be of ecclesiastical cognizance.108 The prudent jealousy of our ancestors ordained109 that no man of law should be judge of assize in his own country: and a similar prohibition is found in the civil law;110 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 connection.111
THE judges upon their circuits sit by virtue of five several authorities. 1. The commission of the peace. 2. A commission of oyer and terminer [hear and determine]. 3. A commission of general jail-delivery. The consideration of all which belongs properly to the subsequent book of these commentaries. But the fourth commission is,
4. A commission of assize, directed to the judges and clerk of assize, to take assizes; 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 as a consequence of the commission of assize,112 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 at Westminster, that are then ripe for trial by jury. The original of the name is this: all causes commenced in the courts of Westminster-hall are by the course of the courts appointed to be there tried, on a day fixed 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 justitiarii ad assisas capiendas venerint; 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 terms, and there dispose of the cause; which saves much expense and trouble, both to the parties, the jury, and the witnesses.
THESE are the several courts of common law and equity, which are of public and general jurisdiction throughout the kingdom. And, upon the whole, we cannot but admire the wise economy and admirable provision of our ancestors, in settling the distribution of justice in a method so well calculated for cheapness, expedition, and ease. By the constitution which they established, all trivial debts, and injuries of small consequence, were to be recovered or redressed in every 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 misdemeanors were to be examined in a court by themselves; and matters of the revenue in another distinct jurisdiction. Now indeed, for the ease of the subject and greater dispatch 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 neighbors; 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 rigor 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 both of law and equity; and which will therefore take care to preserve an uniformity and equilibrium among all the inferior jurisdictions: a court composed of prelates selected for their piety, and of nobles advanced to that honor for their personal merit, or deriving both honor and merit from an illustrious train of ancestors; who are formed by their education, interested by their property, and bound upon their conscience and honor, to be skilled in the laws of their country. This is a faithful sketch of the English juridical constitution, as designed by the masterly hands 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 vigor: 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 ancient 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.
1. Mod. Un. Hist. xxxviii. 469.
2. Ibid. xxxix. 14.
3. Exod. c. 18.
4. 4 Inst. 272.
5. Ruth. c. 4.
6. Barrington’s observat. on the stat. 337.
7. Stat. 17 Edw. IV. c. 2.
8. Cro. Eliz. 773.
9. Co. Litt. 58.
10. Book II. ch. 6. and ch. 22.
11. Finch. 248.
12. Stiernhook de jure Goth. l. 1. c. 2.
13. F. N. B. 3. 4. See append. No. § 2.
14. 3 Rep. Pref.
15. See append. No. I. § 3.
16. F. N. B. 4. 70. Finch. L. 444. 445.
17. F. N. B. 18.
18. Finch. l. 248. 4. Inst. 267.
19. 2 Inst. 71.
20. Vol. I. introd. § 4.
21. Centeni ex singulis pagis sunt, idque ipsum inter sous vocantur; et, quod primo numerus suit, jam nomen et honor est. [Each village is divided into hundreds, and are so called by their inhabitants; and that which first was a mere number has now become both a name and an honor.] Tac. de mor. Germ. c. 6.
22. de bell. Gall. l. 6. c. 22.
23. de morib. German. c. 13.
24. Stiernhook, l. 1. c. 2.
25. 4 Inst. 266.
26. 6 Edw. I.c. 8.
27. 2 Inst. 391.
28. Finch. 318. F. N. B. 152.
29. Gloss. v. cemitatas.
30. c. 11.
31. LL. Eadgari. c. 5.
32. F. N. B. 70. Finch. 445.
33. L. 3. tr. I. c.
34. Spelm. Gl. 331, 2, 3. Gilb. Hist. C. P. introd. 17.
35. See vol. I. introd. § I.
36. Mod. Un. Hist. xxiii. 396.
37. Ibid. xxix. 467.
38. 4 Inst. 99.
39. King James I, during part of his reign, appointed five judges in every court, for the benefit of a casting voice in case of a difference in opinion, and that the circuits might at all times be fully supplied with judge of the superior courts. And, in subsequent reigns, upon the permanent indisposition of a judge, a fifth has been sometimes appointed. Raym. 475.
40. 4 Inst. 73.
41. See book I. ch. 7. The king used to decide causes in person in the aula regia. “In curia domini regis ipse in propria persona jura decernit.” [“The king in person judges in his own court.”] (Dial. de Sead b. l. I. § 4.) After its dissolution, king Edward I frequently sat in the court of king’s bench. (See the records cited 4 Burr. 851.) And, later times, James I is said to have sat there in person, but was informed by his judges that he could not deliver an opinion.
42. 4 Inst. 71.
43. M. 20, 21 Edw. I. Hale Hist. C. L. 200.
44. l. 3. c. 10.
45. 28 Edw. I. c. 5.
46. Finch. L. 198.
47. 4 Inst. 71.
48. Ibid. 72.
49. Thus too in the civil law: contra fictionem non admittitur probatio: quid enim efficeret probatio veritatis, ubi fictio adversus veritatem fingit? Nam fictio nihil aliud est, quam legis adversus veritatem in re possibili ex justa causa dispositio. [Proof is not admitted to contradict a fiction: for what would the proof of truth avail, where fiction counterfeits truth? For fiction is simply a supposition by the law, for a just cause, of something possible which is contrary to the truth.] (Gothfred. in Ff. l. 22. t. 3.)
50. 3 Rep. 30. 2 Roll. Rep. 502.
51. 11 Rep. 61. Co. Litt. 150.
52. Lamb. Archeiox. 24.
53. Madox. Hist. Exch. 109.
54. Spelm. Guil. I. in cod. leg. qut. vet apud Wilkins.
55. 4 Inst. 103-116.
56. Tit. hon. 2. 5. 16.
57. l. 3. tr. 2. c. 1. § 3.
58. 10 Edw. I. c. 11.
59. 28 Edw. I. c. 4.
60. 4 Inst. 88.
61. Lamb. Archeion. 65. 1 Roll. Abr. 385.
62. Stat. 31. Hen. VIII. c. 10.
63. of the office of lord chancellor. edit. 1651.
64. Madox. Mist. of exch 43.
65. 4 Rep. 64.
66. 4 Inst. 80.
67. Co. Litt. 171. F. N. B. 62.
68. Bro. Abr. tit. dower. 66. Moor. 565.
69. Bro. Abr. t. dismes. 10.
70. 2 Roll. Abr. 469.
71. Cro. Jac. 12.
72. Ycarbook, 18 Edw. III. 25. 17 Aff. 24. 29 Aff. 47. Dyer. 315. 1 Roll. Rep. 287. 4 Inst. 80.
73. The opinion of lord keeper North in 1682 (1 Vern. 131. 1 Equ. Cas. abr. 129.) that no such writ of error lay, and that an injunction might be issued against. it, seems not to have been well considered.
74. The council of conscience, instituted by John III, king of Portugal, to review the sentences of all inferior courts, and moderate them by equity (Mod. Un. Hist. xxii. 237.) seems rather to have been a court of appeal.
75. Thus too the parliament of Paris, the court of session in Scotland, and every other jurisdiction in Europe of which we have any tolerable account, found all their decisions as well upon principles of equity as those of positive law (Lord Kayms. h flor. lawtracts, I. 325. 330. princ of equity 44.)
76. Thus Cicero; “jam illis promisses non esse standum, quis non videt, quae coactus quis metu et deceptus aolo premiserit? quae quidem plerumque jure praetorio liberantur, nonnulla legibus.” [“To whom is it not evident that promises made through fear or fraud are of no validity? some of which are dissolved at the discretion of the judge, and some by the laws.”] Office. l. 1.
77. l. 2. c. 7. fol. 23.
78. The matters cognizable in this court, immediately before its dissolution, were “almost all suits, that by color of equity, or supplication made to the prince, might be brought before him: but originally and properly all poor men’s suits, which were made to his majesty by supplication; and upon which they were entitled to have right without payment of any money for the same.” (Smith’s commonwealth. b. 3. c. 7.)
79. Nemo ad regem appllet pro aliqua lite, nisi jus domi consequi non possit. Si jus nimis severeum fit, alleviatio deinde quaeratur apud regem. [No one may appeal to the king in any suit, unless he cannot obtain justice at home. If the decision be too severe, then a mitigation of it may be prayed from the king.] LL. Edg. c. 2.
80. Lambard. Archeion. 59.
81. Joannes Sarisburiensis (who died A. D. 1182, 26 Hen. II.) speaking of the chancellor’s office in the verses prefixed to his polycraticon, has these lines; Hic est, qui leges regni cancellat iniquas, Et mandata pii principis aequa facit. [It is he who cancels the unequitable laws of the kingdom, and executes the just mandates of a righteous prince] 82. A great variety of new precedents of writs, in cases before unprovided for, are given by this very statute of Westm. 2.
83. Lamb. Archeion. 61.
84. This was the opinion of Fairfax, a very learned judge in the time of Edward the fourth. “Le subpoena (says he) ne serroit my cy soventement use come il est ore, si nous attendomus tiels actions sur les cases, et mainteinomus le jurisdiction de ceo court, et d’auter courts.” [“The subpoena would not be so often used here as it now is, if we were to pay attention to actions on the case, and maintain the jurisdiction of this and other courts.”] (Yearb. 21. Edw. IV. 23.)
85. See book II. ch. 20.
86. Spelm Gloss. 106. 1. Lev. 242.
87. Lord Lyttelt. Hen. II. b. 3. p. 361. not.
88. 10 Hen. II. c. 15.
89. Yearb. 2 Hec. IV. 10. 38. Hen. VI. 29.
90. Rot. Parl. 4 Hen. IV, No. 78. & 110. 3 Hen. V. No. 46. cited in Prynne’s abr. of Cotton’s records. 410. 422. 424. 548. 4 Inst. 83. 1 Roll. Abr. 370, 371, 372.
91. Rot. parl. 14 Edw. IV. No. 33. (not 14 Edw. III. as cited 1 Roll. Abr. 370, etc.)
92. tit. chancery. fol. 296. Raftell’s edit. A. D. 1534.
93. Spelm. Gloss. III. Dugd. chron Ser. 50.
94. Wriothesly, St John, and Hatton.
95. Goodrick, Gardiner, and Heath.
96. Biogr. Brit. 4278.
97. Bacon’s works. IV. 611, 612. 632.
98. Whitelocke of parl. ii. 390. 1. Chan. Rep. append. 11.
99. “For that it appertains to our princely office only to judge over all judges, and to discern and determine such differences, as at any time may and shall arise between our several courts touching their jurisdictions, and the same to settle and determine, as we in our princely wisdom shall find to stand most with our honor, etc.” (1 Chan. Rep. append. 26.)
100. See the entry in the council book, 26 July, 1616. (biogr. Brit. 1390.)
101. In a cause of the bishop of Winchester, touching a commendam, king James, conceiving that the matter affected his prerogative, sent letters to the judges not to proceed in it, till himself had been first consulted. The twelve judges joined in a memorial to his majesty, declaring that their compliance would be contrary to their oaths and the law: but upon being brought before the king in council, they all retracted and promised obedience in every such case for the future, except Sir Edward Coke, who said, “that when the case happened, he would do his duty.” (Biogr. Brit. 1388.)
102. See that article in chap. 6.
103. See lord Ellesmere’s speech to Sir Henry Montague, the new chief justice, 15 Nov. 1616. (Moor’s reports. 828.) Though Sir Edward might probably have retained his seat, if during his suspension he would have complimented lord Villiers (the new favorite) with the disposal of the most lucrative office in his court. (biogr. Brit. 1391.)
104. 4 Inst. 119. 4 Bulstr. 146.
105. Seld. Tan. l. 2. §. 5. Spelm. Cod. 329.
106. Co. Litt. 293.
107. It would have been strange to have denied this consent, if, as Whitelocke imagines (on parl. ii. 260.) the hint of our justices of assize was taken from Samuel’s going an annual circuit to judge Israel. 2 Sam vii. 16.
108. Instances hereof may be met with in the appendix to Spelman’s original of the terms, and in Parker’s ecclesiastical hist. 209.
109. Stat. 4. Edw. III. c. 2. 8 Ric. II. c. 2. 33 Hen. VIII. c. 24.
110. Ff. 1. 22. 3.
111. c. 9. 29. 4.
112. Salk. 454.