Blackstone’s Commentaries with Notes of Reference (1803)

St. George Tucker

Of Proceedings, in the Nature of Appeals

PROCEEDINGS, in the nature of appeals from the proceedings of the king’s courts of law, are of various kinds; according to the subject matter in which they are concerned. They are principally three.

I. A WRIT of attaint: which lies to inquire whether a jury of twelve men gave a false verdict;1 that so the judgment following thereupon may be reversed: and this must be brought in the lifetime of him for whom the verdict was given, and of two at least of the jurors who gave it. This lay, at the common law, only upon verdicts in actions for such personal injuries as did not amount to trespass. For in real wrongs the party injured had redress by writ of right; but, after verdict against him in personal suits, he had no other remedy: and it did not lie in actions of trespass, for a very extraordinary reason; because, if the verdict was set aside, the king would lose his fine.2 But by statute Westm. 1. 3 Edw. I. c. 38. it was given in all pleas of land, franchise, or freehold: and, by several subsequent statutes, in the reigns of Edward III3 and his grandson,4 it was allowed in almost every action, except in a writ of right; for there no attaint lay, either by common law or statute, because it was determined by the grand assize, consisting of sixteen jurors.5

THE jury who are to try this false verdict must be twenty four, and are called the grand jury; for the law wills not that the oath of one jury of twelve men should be attainted or set aside by an equal number, nor by less indeed than double the former. And he that brings the attaint can give no other evidence to the grand jury, than what was originally given to the petit. For as their verdict is now trying, and the question is whether or no they did right upon the evidence that appeared to them, the law judged it the highest absurdity to produce any subsequent proof upon such trial, and to condemn the prior jurisdiction for not believing evidence which they never knew. But those against whom it is brought are allowed, in affirmance of the first verdict, to produce new matter:6 because the petit jury may have formed their verdict upon evidence of their own knowledge, which never appeared in court; and because very terrible was the judgment which the common law inflicted upon them, if the grand jury found their verdict a false one. The judgment was, 1. That they should lose their liberam legem, and become forever infamous. 2. That they should forfeit all their goods and chattels. 3. That their lands and tenements should be seized into the king’s hands. 4. That their wives and children should be thrown out of doors. 5. Hat their houses should be razed and thrown down. 6. That their trees should be rooted up. 7. That their meadows should be plowed. 8. That their bodies should be cast into jail. 9. That the party should be restored to all that he lost by reason of the unjust verdict. But as the severity of this punishment had its usual effect, in preventing the law from being executed, therefore by the statute 11 Hen. VII. c. 24. revived by 23 Hen. VIII. c. 3. a more moderate punishment was inflicted upon attainted jurors; viz. perpetual infamy, and, if the cause of action were above 40£ value, a forfeiture of 20£ apiece by the jurors; or, if under 40£ then 5£ apiece; to be divided between the king and the party injured. So that a man may now bring an attaint either upon the statute or at common law, at his election;7 and
in both of them may reverse the former judgment. But the practice of setting aside verdicts upon motion, and granting new trials, has so superseded the use of both sorts of attaints, that I have not observed any instance of an attaint in our books, later than the sixteenth century.8 By the old Gothic constitution indeed no certificate of a judge was allowed, in matters of evidence, to countervail the oath of the jury: but their verdict, however erroneous, was absolutely final and conclusive. “Testes sunt de judice et de actis ejus; judex vero de ipsis vicissim testari non potest, vere an falso jurent: qualicunque enim eorum assertioni standum est et judicandum.” Yet they had a proceeding from whence our attaint may be derived. If, upon a lawful trial before a superior tribunal, they were found to have given a false verdict, they were fined, and rendered infamous for the future. “Si tamen evidenti argumento falsum jurasse convincantur (id quod superius judicium cognoscere debet) mulctantur in bonis, de caetero perjuri et intestabiles.”9

II. AN audita querela is where a defendant, against whom judgment is recovered, and who is therefore in danger of execution, or perhaps actually in execution, may be relieved upon good matter of discharge, which has happened since the judgment: as if the plaintiff has given him a general release; or if the defendant has paid the debt to the plaintiff, without entering satisfaction on the record. In these and the like cases, wherein the defendant has good matter to plead, but has had no opportunity of pleading it, (either at the beginning of the suit, or puis darrein continuance, which, as was shown in a former chapter,10 must always be before judgment) an audita querela lies, in the nature of a bill in equity, to be relieved against the oppression of the plaintiff. It is a writ directed to the court, stating that the complaint of the defendant has been heard, audita querela defendentis, and then setting out the matter of the complaint, it at length enjoins the court to call the parties before them, and having heard their allegations and proofs, to cause justice to be done between them.11 It also lies for bail, when judgment is obtained against them by scire facias to answer the debt of their principal, and it happens afterwards that the original judgment against their principal is reversed: for here the bail, after judgment had against them, have no opportunity to plead this special matter, and therefore they shall have redress by audita querela;12 which is a writ of a most remedial nature, and seems to have been invented, lest in any case there should be an oppressive defect of justice, where a party has a good defense, but by the ordinary forms of law had no opportunity to make it. but the indulgence now shown by the courts in granting a summary relief upon motion, in cases of such evident oppression,13 and driven it quite out of practice.

III. BUT, thirdly, the principal method of redress for erroneous judgments in the king’s courts of record, is by writ of error to some superior court, of appeal.

A WRIT of error14 lies for some supposed mistake in the proceedings of a court of record; for, to amend errors in a base court, not of record, a writ of false judgment lies.15 The writ of error only lies upon matter of law arising upon the face of the proceedings; for that no evidence is required to substantiate or support it: and there is no method of reversing an error in the determination of facts, but by an attaint, or a new trial, to correct the mistakes of the former verdict.

FORMERLY the suitors were much perplexed by writs of error brought upon very slight and trivial grounds, as misspellings and other mistakes of the clerks, all which might be amended at the common law, while all the proceedings were in paper;16 for they were then considered as only in fieri, and therefore subject to the control of the courts. But, when once the record was made up, it was formerly held, that by the common law no amendment could be permitted, unless within the very term in which the judicial act so recorded was done: for during the term the record is in the breast of the court; but afterwards it admitted of no alteration.17 But now the courts are become more liberal; and, where justice requires it, will allow of amendments at any time while the suit is depending, notwithstanding the record be made up, and the term be part. For they at present consider the proceedings as in fieri, till judgment is given; and therefore that, till then, they have power to permit amendments by the common law. Mistakes are also effectually helped by the statutes of amendment and jeofails: so called, because when a pleader perceives any slip in the form of his proceedings, and acknowledges such error (jeo faile) he is at liberty by those statutes to amend it; which amendment is seldom actually made, but the benefit of the acts is attained by the court’s overlooking the exception.18 These statutes are many in number, and the provisions in them too minute and particular to be here taken notice of, otherwise than by referring to the statutes themselves;19 by which all trifling exceptions are so thoroughly guarded against, that writs of error cannot now be maintained, but for some material mistake assigned.

THIS is at present the general doctrine of amendments; and its rise and history are somewhat curious. In the early ages of our jurisprudence, when all pleadings were ore tenus, if a slip was perceived and objected to by the opposite party or the court, the pleader instantly acknowledged his error and rectified his plea; which gave occasion to that length of dialogue reported in the ancient year-books. So liberal were then the sentiments of the crown as well as the judges, that in the statute of Wales, made at Rothelan, 12 Edw. I. the pleadings are directed to be carried on in that principality, sine calumpnia verborum, non observata illa dura consuetudine, qui cadit a syllaba cadit a tota causa.” The judgments were entered up immediately by the clerks and officers of the court; and if any mis-entry was made, it was rectified by the minutes or the remembrance of the court itself.

WHEN the treatise by Britton was published, in the name and by authority of the king, (probably about the 13 Edw. I. because the last statutes therein referred to are those of Winchester and Westminster the second) a check seems intended to be given to the unwarrantable practices of some judges, who had made false entries on the rolls to cover their own misbehavior, and had taken upon them by amendments and erasures to falsify their own records. The king therefore declares20 that “although we have granted to our justices to make record of pleas pleaded before them, yet we will not that their own record shall be a warranty for their own wrong, nor that they may erase their rolls, nor amend them, nor record them, contrary to their original enrollment.” The whole of which, taken together, amounts to this, that a record surreptitiously or erroneously made up, to stifle or pervert the truth, should not be a sanction for error; and that a record, originally made up according to the truth of the case, should not afterwards by any private erasure or amendment be altered to any sinister purpose.

BUT when afterwards king Edward, on his return from his French dominions is the seventeenth year of his reign, after upwards of three years absence, found it necessary (or convenient) to prosecute his judges for their corruption and other malpractices, the perversion of judgments21 by erasing and altering records was one of the causes assigned for the heavy punishments inflicted upon almost all the king’s justices, even the most able and upright.22 The severity of which proceedings seems so to have alarmed the succeeding judges, that, through a fear of being said to do wrong, they hesitated at doing that which was right. As it was so hazardous to alter a record, even from compassionate motives, (as happened in Hengham’s case, which in strictness was certainly indefensible) they resolved not to touch a record any more; but held that even palpable errors, when enrolled and the term at an end, were too sacred to be rectified or called in question: and, because Britton had forbidden all criminal and clandestine alterations, to make a record speak a falsity, they conceived that they might not judicially and publicly amend it, to make it agreeable to truth. In Edward the third’s time indeed, they once ventured (upon the certificate of the justice in eyre) to estreat a larger fine than had been recorded by the clerk of the court below;23 but, instead of amending the clerk’s erroneous record, they made a second enrollment of what the justice had declared ore tenus; and left it to be settled by posterity in which of the two rolls that absolute verity resides, which every record is said to import in itself.24 And, in the reign of Richard the second, there are instances25 of their refusing to amend the most palpable errors and mis-entries, unless by the authority of parliament.

TO this real sullenness, but affected timidity, of the judges such a narrowness of thinking was added, that every slip (even of a syllable or a letter26) was now held to be fatal to the pleader, and overturned his client’s cause.27 If they durst not, or would not, set right mere formal mistakes at any time upon equitable terms and conditions, they at least should have held, that trifling objections were at all times inadmissible; and that more solid exceptions in point of form came too late when the merits had been tried. They might, through a decent degree of tenderness, have excused themselves from amending in criminal, and especially in capital, cases. They needed not have granted an amendment, where it would work in injustice to either party; or where he could not be put in as good a condition, as if his adversary had made no mistake. And, if it was feared that an amendment after trial might subject the jury to an attaint, how easy was it to make waiving the attaint the condition of allowing the amendment! And yet these were among the absurd reasons alleged for never suffering amendments at all!28

THE precedents then set were afterwards most scrupulously followed,29 to the great obstruction of justice, and ruin of the suitors; who have formerly suffered as much by these obstinate scruples and literal strictness of the courts, as they could have done even by their iniquity. After verdicts and judgments upon the merits, they were frequently reversed for slips of the pen or misspellings: and justice was perpetually entangled in a net of mere technical jargon. The legislature has therefore been forced to interpose, by no less than twelve statutes, to remedy these opprobrious niceties: and its endeavors have been of late so well seconded by judges of a more liberal cast, that this unseemly degree of strictness is almost entirely eradicated; and will probably in a few years be no more remembered, that the learning of essoins and defaults, or the counterpleas of voucher, are at present. But, to return to our writs of error.

IF a writ of error be brought after verdict, he that brings the writ, or that is plaintiff in error, must in most cases find substantial pledges of prosecution, or bail:30 to prevent delays by frivolous pretenses to appeal; and for securing payment of costs and damages, which are now payable by the vanquished party in all, except a few particular, instances, by virtue of the several statutes, recited in the margin.31

A WRIT of error lies from the inferior courts of record in England into the king’s bench,32 and not into the common pleas.33 Also from the king’s bench in Ireland to the king’s bench in England. It likewise may be brought from the common pleas at Westminster to the king’s bench; and then from the king’s bench the cause is removable to the house of lords. From proceedings on the law side of the exchequer a writ of error lies into the court of exchequer chamber before the lords. From proceedings on the law side of the exchequer a writ of error lies into the court of exchequer chamber before the lord chancellor, lord treasurer, and the judges of the court of king’s bench and common pleas: and from thence it lies to the house of peers. From proceedings in the king’s bench, in debt, detinue, covenant, account, case, ejectment, or trespass, originally begun therein (except where the king is party) it lies to the exchequer chamber, before the justices of the common pleas, and barons of the exchequer; and from thence also to the house of lords:34 but where the proceedings in the king’s bench are commenced by original writ, sued out of chancery, (which must be for some forcible injury, in which the king is supposed to be a party, in order to punish the trespass committed in a criminal manner) this takes the case out of the general rule laid down by the statute; so that the writ of error then lies, without any intermediate stage of appeal, directly to the house of lords, the dernier resort for the ultimate decision of every civil action. Each court of appeal, in their respective stages, may upon hearing the matter of law in which the error is assigned, reverse or affirm the judgment of the inferior courts; but none of them are final, save only the house of peers, to whose judicial decisions all other tribunals must therefore submit and conform their own. And thus much for reversal or affirmance of judgments by writs in the nature of appeals.

Blackstone’s Footnotes (Tucker’s notes not yet added)

     1.    Finch. L. 484.
     2.    Bro. Abr. t. atteint. 42.
     3.    Stat 1 Edw. c. 6, 5 Edw. III. c. 7, 28 Edw. III. c. 8, 34 Edw. III. c. 7.
     4.    Stat. 9 Ric. II. c. 3.
     5.    Bro. Abr. t. atteint. 42.
     6.    Finch. L. 486.
     7.    3 Inst. 164.
     8.    1593. M. 35 & 36 Eliz. Cro Eliz. 309.
     9.    Stiernhook de jure Goth. l. 1. c. 4.
   10.    See pag. 317.
   11.    Finch. L. 488. F. N. B. 102.
   12.    1 Roll. Abr. 308.
   13.    Lord Raym. 439.
   14.    Append. No. III. § 6.
   15.    Finch. L. 484.
   16.    4 Bur. 1099.
   17.    Co. Litt. 260.
   18.    Stra,. 1011.
   19.    Stat. 14 Edw. III. c. 6. 9 Hen. V. c. 4. 4 Hen. VI. c. 3. 8 Hen. VI. c. 12 & 15. 32 Hen. VIII. c. 30. 18 Eliz. c. 14. 21 Jac. I. c. 13. 16 & 16 Car. II. c. 8. (styled in 1 Ventr. 100. an omnipotent act) 4 & 5 Ann. c. 16. 9 Ann. c. 20. 5 Geo. I. c. 13.
   20.    Britt. pro m. 2, 3.
   21.    Judicia perverterunt, et in aliis erraverunt. (Matth. Westm. A. D. 1289.)
   22.    Among the other judges, Sir Ralph Hengham chief justice of the king’s bench is said to have been fined 7,000 marks, Sir Adam Stratton chief baron of the exchequer 34,000 marks, and Thomas Wayland chief justice of the common pleas to have been attainted of felony, and to have abjured the realm, with a forfeiture of all his estates; the whole amount of the forfeitures being upwards of 100,000 marks, or 70,000 pounds, (3 Pryn. Rec. 401, 402.) An incredible sum in those days, before paper credit was in use, and when the annual salary of a chief justice was only sixty marks. (Claus. 6 Edw. l. m. 6. Dugd. chron. ser. 26.) The charge against Sir Ralph Hengham (a very learned judge, to whom we are obliged for two excellent treatises of practice) was only, according to a tradition that was current in Richard the third’s time, (Yearbook. M. 2 Ric. III. 10.) his altering out of mere compassion a fine, which was set upon a very poor man, from 13 s. 4 d. to 6 s. 8 d. for which he was fined 800 marks; a more probable sum that 7,000. It is true, the book calls the judge so punished Ingham and not Hengham: but I find no judge of the name of Ingham in Dugdale’s Series; and Sir Edward Coke (4 Inst. 255.) and Sir Matthew Hale (1 P. C. 646.) understand it to have been the chief justice. And certainly his offenses was nothing very atrocious or disgraceful: for though removed from the king’s bench at this time (together with the rest of the judges) we find him about twelve years afterwards made chief justice of the common pleas, (Pat. 29 Edw. I. m. 7. Dugd. chron. fer. 32.) in which office he continued till his death in 2 Edw. II. (Claus. 1 Edw. II. m. 19. Pat. 2 Edw. II. p. 1. m. 9. Dugd. 34. Selden. pref. to Hengham.) There is an appendix to this tradition, remembered by justice Southcote in the reign of queen Elizabeth; (3 Inst. 72. 4 Inst. 255.) that with this fine of chief justice Hengham a clock-house was built at Westminster, and furnished with a clock, to be heard into Westminster-hall. Upon which story I shall only remark, that the first introduction of clocks was not till an hundred years afterwards, about the end of the fourteenth century. (Eneyclopedie. tit. horloge.)
   23.    1 Hal. P. C. 647.
   24.    1 Leon. 183. Co. Litt. 117. See pag. 331.
   25.    1 Hal. P. C. 648.
   26.    Stat. 14 Edw. III. c. 6.
   27.    In those days it was strictly true, what Ruggle (in his ignoramus) has humorously applied to more modern pleadings; “in nostra lege unum comma evertit totum placitum“.
   28.    Styl. 207.
   29.    8 Rep. 156. etc.
   30.    Stat. 3 Jac. I. c. 8. 13. Car. II. c. 2. 16 & 17 Car. II. c. 8.
   31.    3 Hen. VII. c. 10. 13 Car. II. c. 2. 8 & 9 W. III. c. 11. 4 & 5 Ann. c. 16.
   32.    See chap. 4.
   33.    Finch. L. 480. Dyer. 250.
   34.    Stat. 27 Eliz. c. 8.