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error: but this struggle, together with the business df cemmtndams (in which he acted a very noble parth) and his controlling the commissioners of sewers', were the open and avowed causes'1, 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 did 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, did little to improve upon his plan: and even after the restoration the seal was committed to the earl of Clarendon, who had withdrawn from practice as a lawyer near twenty years 5 and afterwards to the carl of Shaftesbury, who (though a lawyer by education) had never piactisedat all.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 [ 5* ] 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 embarrassments raised by the narrow and technical notions which then prevailed 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
'In a cause of the bi/hop of Winches- "when the cafchappened, he would da
•er, touching a cunrr.endam, Icing James «' his duty." (Bfogr. Brit. 1388.) conceiving that the macter affected hit i See that article in chap. 6.
prerogative, fentletterstu thejudgesnot k See lord Ellesnwre'a speech to sir
to proceed in it, till himself had been Henry Montague, the new chief justice,
firstconsulted. Thetwclvejudgcsjo'ned 15 Nov. 1616. (Moor'sreports. 828.)
hi a memorial to his majesty, declaring Though fir Edward might prcbably have
■feat their compliance would be contrary retained his feat, if,during his suspension,
lo their oaths and the law: but upon he would have complimented lord Vjlli
beiggbrought before the king and coun- ers (the new favourite) with the dlfyo
cif, they all retracted and promised obe- sal of the most lucrative office in hi*
^ieiKe in every such case for the future; court. (Bicgr, Brit. J391.)
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 foundations; 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 nothing but only a definitive judgment: 2. That on writs of error the house os lords pronounces the judgment, on appeals it gives direction to the court below to rectify it's 6wn decree.
IX. The next court that I shall mention is one that hath 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 chancellor and lord treasurer, taking unto him the justices of the king's bench and common pleas. In imitation of which, a second court os exchequer chamber was erected by statute 27 Eliz. c. 8. consisting of the justices £ 57 ] of the common pleas, and the banrtis of the exchequer; before whom writs of error may be brought to reverse judgments in certain suits ' originally begun 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 m.
I !«c ch. 15. pig. 411. "4 Inst. I;j. zBulstr. u*
From all the branches of this court of exchequer chamber, a writ of error lies to
X. The house os 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 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 it's jurisdiction was dealt out to other tribunals, over which the great officers who accompanied those barons were respectively delegated to preside \ it followed, that the right of receiving appeals, and superintending all other jurisdictions, still remained in the residue of that noble assembly, from which every other great court was derived. They are therefore in all causes the last resort, from whose judgment no farther appeal is permitted -, but every subordinate tribunal must conform to their determinations: the law reposing an entire confidence in the honour and conscience of the noble persons who compose this important assembly, that (if possible) they will make themselves masters of those questions upon which they undertake to decide, and in all dubious cafes refer themselves to the opinions of the judges, who are summoned by writ to advise them; since upon their decision all property must finally depend.
Hitherto may also be referred the tribunal established by [ c8 3 statute 14 Edw. III. c. 5. consisting (though now out os use) of oneprelate, 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 (with the advice of the chancellor, treasurer, and justices of both benches) to give directions for remedying these inconveniences in the courts below. This committee seems to have been established, lest there should be a defect of justice for want of a supreme court of appeal, during any long intermission or recess of parliament; for the statute farther directs, that if the
.vol. III. E 8 difiieulty
difficulty be sa great, that it may not well be determined without assent of parliament, it sliall be brought by the suit prelate, earls, and barons unto the next parliament, who shall finally determine the fame.
XI. Before I conclude this chapter, I mud 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 -T I mean the courts of aflise and nifi prius.
These are composed of two or more commissioners, who are twice in every year sent by the king's special commission all round the kingdom, (except London and Middlesex, where courts of nifi pr'tut are holden in and after every term, before the chief or other judge of the several superior courts (7); and except the four northern counties, where the assiscs are holden only once a year) to try by a jury of the respective counties the truth of such matters of fact, as are then under dispute in the courts of Westminster-hall. These judges of affise came into <' '■ 1 ■ ■ 1.
(7) The courts of nifiprius in London and Middlesex are called fittings, and those for Middlesex were established by the legislature in the reign of queen Elizabeth. In antient times all issues in actions brought in that county were tried at Westminster in the terms at the bar of the court in which the action was instituted; but when the business of the courts increased, these trials were sound so great an inconvenience* that it was enacted by the 18 Eliz. c. 1 z. that the chief justice of the king's bench should be empowered to try within the term, or within four days after the.cnJ of the term, all the issues joined in the courts of ckancery and king's bench; and that the chief justice of the common pleas, and the chief baron, Ihould try in like manner the issues joined in their respective courts.
In the absence of any one of the chiefs, the fame authority was given to two of the judges or barons of his court. The statute 12 Geo. I. c. 31. extended the time to eight days after term, and empowered one judge or baron to sit in the absence of the chief. The 24 Geo. II. c. 18. has extended the time after term still farther to fourteen days.
use In the room of the antient justices in eyre, jufiiciarii in it!nere; who were regularly established, if not first appointed, by the parliament of Northampton, A. D. 1176, 22 Hen. II", 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 °. They were after- [ 59 1 wards directed by magna cartat c. 12. to be sent into every county once a year, to take (or receive the verdict of the jurors or recbgnitors in certain actions, then called) recognitions or aflises •, the most difficult of which they are directed to adjourn into the court of common pleas to be there determined. The itinerant justices were sometimes mere justices of assile, or of dower, or of gaol-delivery, and the like -, and they had sometimes a more general commiifion, to determine all manner of causes, being constituted jufiiciarii ad omnia placita F: but the present justices of aflise and nistprius are more immediately derived from the statute Westm. 2. 13 Edw. I. c 30. which directs them to be assigned out of the king's sworn justices, associating to themselves one or two discreet knights of each county. By statute 27 Edw. I. c. 4. (explained by 12 Edw. II. c. 3.) assises and inquests were allowed to be taken before any one justice of the court in which the plea was brought; associating to him one knight or other approved man of the county. And, lastly, by statute 14 Edw. III. c. 16. inquests of nifi prius may be taken before any justice of either bench (though the plea be not depending in his own court) or before the chief baron of the exchequer, if he be a man of the law; or otherwise before the justices of assise, so that one of such justices be a judge of the king's bench or common pleas, or the king's serjeant sworn. They usually make their circuits in the respective
8 StW. Jan. I. *. § 5. Spelm. Cod. septem anni mndum erant ehpji, ftfi.
319. quern juJUciarii ibidem ultimo ftderunt.
° Co. LiM. 293—Anno I»6i justi- (Annul. EtJ. Wigarn. in Wharf. Angl.
tiaraii'uscranttivtntruniapudWigtrniam jacr. J. 4.95.)
i"«ff««ii S.JnhannitbaftiJlat;—it ut-ut t Brail-1- 3. fr, I. e. It. 'taititui ni adaittari rtcujavit, jaed
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