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difficulty be so great, that it may not well be determined without affent of parliament, it shall be brought by the said prelate, earls, and barons unto the next parliament, who shall finally determine the fame.
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 aflife and nik 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 Middle sex, where courts of nifi prius 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 assises are holden only once a year) to try by a jury of the respective counties the truth of fuch matters of fact, as are then under dispute in the courts of Westminster-hall. These judges of aslife came into
(7) The courts of nifi prius in London and Middlesex are called Strings, 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 found so great an inconvenience, that it was enacted by the 18 Eliz. c. 12. that the chief justice of the king's bench should be empowered to try within the term, or within four days after the end of the term, all the issues joined in the courts of chancery and king's bench; and that the chief justice of the common pleas, and the chief baron, Should try in like manner the issues joined in their respective courts.
In the absence of any one of the chiefs, the same 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 absence of the chief. The 24 Geo. II. c. 18. has extended the time after term ftill farther to fourteen days.
use in the room of the antient justices in egre, judiciara in iiiFT?; who were regularly established, if not firit appointed, by the parliament of Northampton, A. D. 1176, 22 Hen. II“, with a delegated power from the king's great court or aula regis, being looked upon as members thereof: and they afterwards made their circuit round the kingdom once in seren years for the purpose of trying causes. They were after- [ 59 1 wards directed by magna carta, c. 12. to be sent into every county once a year, to take (or receive the verdict of the ju. rors or recognitors in certain actions, then called) recognitions or affiles; 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 allile, or of dower, or of gaol-delivery, and the like; and they had sometimes a more general commission, to determine all manner of causes, being constituted jufficiarii ad omnia pla. cita P: but the present justices of aslıfe and nifi prius 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 (worn 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 ftarute 14 Edw. III. c. 16. inquests of nisi 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 aflise, so that one of such justices be a judge of the king's bench or common pleas, or the king's serjeant fworn. They usually make their circuits in the respective
o Seld. Jan. I. 2. $ 5. Spelm. Cod. septem anni sordum erunt elapfi, poffe 329.
quam jufticiarii ibidem wliimo federunt. • Co. Lict. 293-Anno 1261 jufti. (Annal. E«. Wigorn. in Wbart. Angl. riarii itinerantes venerunt apud Wigornium facr. I. 495.) in oštatis S. Jobannis bapriftae;--et tellus P B148. b. 3. ir. d. 6.31. oi mitatus eos admittere recufavit, quod VOL. III.
vacations after Hilary and Trinity terms; allises being allowed to be taken in the holy time of lent by consent 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 licences to the justices of allise to administer oaths in holy times: for oaths
being of a sacred nature, the logic of those deluded ages con[ 60 ] cluded that they must be of ecclesiastical cognizance 9. The
· prudent jealousy of our ancestors ordained', that no man of
Jaw should be judge of aflife in his own country, wherein he · wasborn,or doth inhabit(8): and a similar prohibition is found
in the civil laws, 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 connexion'.
The judges upon their circuits now fit by virtue of five several authorities. 1. The commission of the peace. 2. A commission of oyer and terminer. 3. A commission of general gaol delivery. The consideration of all which belongs properly to the subsequent book of these commentaries. But the fourth commission is, 4. A commission of alife, directed to the justices, and serjeants therein named, to take (together with their associates) aflises in the several counties; that is, to take the verdict of a peculiar species of jury, called an assise and summoned for the trial of landed disputes, of which hereafter. The other authority is, 5. That of nifi prius, which is a confequence of the commission of affife", being annexed to the
Instances hereof may be met with in c. 2. 33 Hen. VIII. c. 24.
u Salk. 454.
(8) This restriction was construed 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 commissioners of oxer and terminer, and of gaol delivery, to cxecute their commissions in the criminal courts within the counties in which they were born, or in which they reside. See 4 vol. 271. 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. These by the course of the courts w are usually appointed to be tried at Westminster in some Easter or Michaelmas term, by a jury returned from the county wherein the cause of action arises ; but with this proviso, nis prius, unless before the day prefixed the judges of aslife come into the county in question. This they are sure to do in the vacations preceding each Easter and Michaelmas term, which saves much expense and trouble. These commissions are constantly accompanied by writs of association, in pursuance of the statutes of Edward I and II before mentioned; whereby [ 59* ] certain persons (usually the clerk of aslife and his subordinate officers) are directed to associate themselves with the justices and serjeants, and they are required to admit the faid persons into their society, in order to take the assises, &c.; that a sufficient supply of commissioners may never be wanting. But, to prevent the delay of justice by the absence of any of them, there is also issued of course a writ of non omnes ; directing, that if all cannot be present, any two of them (a justice or serjeant being one) may proceed to execute the commission.
· 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 oeconomy and admirable provision of our ancestors, in settling the distribution of justice in a method so well calcu. lated 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 misdemesnors were to be examined in a court by theme felves; and matters of the revenue in another distinct juris. w See ch. 23. p.g. 353.
diction. 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 neighbours ; 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 fuccessive courts of appeal, to rectify such their mistakes. If the rigour of general rules does in any case bear hard upon individuals, courts of equity are open to supply the defects, but
not fap the fundamentals, of the law. Lastly, there presides [ 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 jurisdictions: a court composed of prelates selected for their piety, and of nobles advanced to that honour for their personal merit, or deriving both honour and merit from an illustrious 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 designed 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 obscured or decayed, they may still be with ease restored to their pristine vigour : 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.