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difficulty be fo great, that it may not well be determined without affent of parliament, it shall be brought by the faid prelate, earls, and barons unto the next parliament, who shall finally determine the fame.

XI. BEFORE I Conclude this chapter, I must alfo mention an eleventh species of courts, of general jurisdiction and ufe, which are derived out of, and act as collateral auxiliaries to, the foregoing; I mean the courts of affife and nifi prius.

THESE are compofed of two or more commiffioners, who are twice in every year fent by the king's fpecial commission all round the kingdom, (except London and Middle fex, where courts of nifi prius are holden in and after every term, before the chief or other judge of the feveral fuperior courts (7); and except the four northern counties, where the affifes are holden only once a year) to try by a jury of the refpective counties the truth of fuch matters of fact, as are then under difpute in the courts of Westminster-hall. These judges of aflife came into

(7)' The courts of nifi prius in London and Middlesex are called fittings, and thofe for Middlesex were established by the legifla ture in the reign of queen Elizabeth. In antient times all iffues in actions brought in that county were tried at Westminster in the terms, at the bar of the court in which the action was inftituted; but when the bufinefs of the courts increased, thefe trials were found fo great an inconvenience, that it was enacted by the 18 Eliz. c. 12. that the chief justice of the king's bench fhould be empowered to try within the term, or within four days after the end of the term, all the iffues joined in the courts of chancery and king's bench; and that the chief justice of the common pleas, and the chief baran, should try in like manner the iffues joined in their respective

courts.

In the abfence 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 fit in the abfence of the chief. The 24 Geo. II. c. 18. has extended the time after term ftill farther to fourteen days.

ufe

ufe in the room of the antient juftices in eyre, jufticiarii in itinere; 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] wards directed by magna carta, c. 12. to be fent into every county once a year, to take (or receive the verdict of the jurors or recognitors in certain actions, then called) recogni tions or affifes; the most difficult of which they are directed to adjourn into the court of common pleas to be there determined. The itinerant juftices were sometimes mere justices of affife, or of dower, or of gaol-delivery, and the like; and they had fometimes a more general commiffion, to determine all manner of causes, being conftituted jufliciarii ad omnia placita: but the prefent juftices of aflife and nifi prius are more immediately derived from the statute Weftm. 2. 13 Edw. I. c. 30. which directs them to be affigned out of the king's fworn juftices, affociating to themselves one or two difcreet knights of each county. By ftatute 27 Edw. I. c. 4. (explained by 12 Edw. II. c. 3.) affifes and inquefts were allowed to be taken before any one juftice of the court in which the plea was brought; affociating to him one knight or other approved man of the county. And, laftly, by ftatute 14 Edw. III. c. 16. inquefts of nifi prius may be taken before any juftice 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 otherwife before the juftices of affife, fo that one of fuch juftices be a judge of the king's bench or common pleas, or the king's ferjeant fworn. They ufually make their circuits in the respective

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Book III. vacations after Hilary and Trinity terms; aflifes being allowed to be taken in the holy time of lent by confent of the bishops at the king's request, as expreffed 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 licences to the juftices of aflife to administer oaths in holy times: for oaths being of a facred nature, the logic of thofe deluded ages con60cluded that they must be of ecclefiaftical cognizance 9. The prudent jealoufy of our ancestors ordained', that no man of

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law fhould be judge of affife in his own country, wherein he

was born, or doth inhabit (8): and a fimilar prohibition is found in the civil law, which has carried this principle fo far, that it is equivalent to the crime of facrilege, for a man to be governor of the province in which he was born, or has any civil connexion'.

THE judges upon their circuits now fit by virtue of five feveral authorities. 1. The commiffion of the peace. 2. A commiffion of oyer and terminer. 3. A commiffion of general gaol delivery. The confideration of all which belongs properly to the fubfequent book of these commentaries. But the fourth commiffion is, 4. A commiffion of affife, directed to the juftices and ferjeants therein named, to take (together with their affociates) aflifes in the feveral counties; that is, to take the verdict of a peculiar fpecies of jury, called an affife and fummoned for the trial of landed difputes, of which hereafter. The other authority is, 5. That of nifi prius, which is a confequence of the commiffion of affife", being annexed to the C. 2. 33 Hen. VIII. c. 24.

Inftances hereof may be met with in the appendix to Spelman's original of the terms, and in Mr. Parker's Antiquities. 209.

r Stat. 4 Edw. III. c. 2. 8 Rich. II.

• Ff. 1. 22. 3.

C. 9. 29. 4. u Salk. 454.

(8) This restriction was conftrued to extend to every commisfion of the judges; but it being found very inconvenient, the 12 Geo. II. c. 27. was enacted for the express purpose of authorizing the commiffioners of oyer and terminer, and of gaol delivery, to execute their commiffions in the criminal courts within the counties in which they were born, or in which they refide. See 4 vol. 271.

office of thofe juftices by the ftatute of Weftm. 2. 13 Edw. I. c. 30. and it empowers them to try all queftions of fact iffuing out of the courts at Westminster, that are then ripe for trial by jury. These by the course of the courts are ufually appointed to be tried at Westminster in fome Easter or Michaelmas term, by a jury returned from the county wherein the cause of action arises; but with this provifo, nifi prius, unless before the day prefixed the judges of affife come into the county in question. This they are fure to do in the vacations preceding each Eafter and Michaelmas term, which faves much expense and trouble. These commiffions are conftantly accompanied by writs of affociation, in pursuance of the ftatutes of Edward I and II before mentioned; whereby [ 59* ] certain perfons (usually the clerk of affife and his fubordinate officers) are directed to affociate themselves with the juftices and ferjeants, and they are required to admit the faid perfons into their fociety, in order to take the affifes, &c. ; that a fufficient fupply of commiffioners may never be wanting. But, to prevent the delay of juftice by the abfence of any of them, there is alfo iffued of course a writ of fi non omnes; directing, that if all cannot be prefent, any two of them (a juftice or ferjeant being one) may proceed to execute the commiffion.

THESE are the feveral courts of common law and equity, which are of public and general jurifdiction throughout the kingdom. And, upon the whole, we cannot but admire the wife peconomy and admirable provision of our ancestors, in fettling the diftribution of juftice in a method fo well calculated for cheapnefs, expedition, and cafe. By the constitution which they established, all trivial debts, and injuries of fmall confequence, were to be recovered or redreffed in every man's own county, hundred, or perhaps parish. Pleas of freehold, and more important difputes 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 mifdemefnors were to be examined in a court by themfelves; and matters of the revenue in another diftinct jurif w See ch. 23. pag. 353. F2

diction.

diction. Now, indeed, for the ease of the subject and greater dispatch of causes, methods have been found to open all the three fuperior courts for the redress of private wrongs; which have remedied many inconveniences, and yet preferved the forms and boundaries handed down to us from high antiquity. If facts are difputed, they are fent down to be tried in the country by the neighbours; but the law, arifing upon those facts, is determined by the judges above: and, if they are mistaken in point of law, there remain in both cases two fucceffive courts of appeal, to rectify fuch their mistakes. If the rigour of general rules does in any cafe bear hard upon individuals, courts of equity are open to supply the defects, but not fap the fundamentals, of the law. Laftly, there prefides [ 60* ] 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 aequilibrium among all the inferior jurifdictions: a court compofed of prelates felected for their piety, and of nobles advanced to that honour for their personal merit, or deriving both honour and merit from an illuftrious train of ancestors; who are formed by their education, interested by their property, and bound upon their conscience and honour, to be skilled in the laws of their country. This is a faithful sketch of the English juridical constitution, as defigned by the masterly hands of our forefathers. Of which the great original lines are still strong and visible; and, if any of it's minuter strokes are by the length of time at all obfcured or decayed, they may ftill be with ease restored to their priftine vigour and that not fo much by fanciful alterations and wild experiments, (fo 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.

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