494 



COURTS OF ENGLAND. 



the statute of 13 Richard II., chap. .' to take cn;;iii/ nice " of 

 oVeds ot arms and war out of the ie.il.i-, which cannot be dis- 

 cussed by the courts of the common law :" he-ides the eccleri- 

 attical courts and those of admiralty and chancery, of wliich a 

 more particular account will bo Riven. 



The Superior Cuurtt of Westminster hnll an- the courts of 

 exchequer, cnmmon pleat, and ktng't bench. These three 

 courts, and also that of chancery and the houte oflordi, are the 

 remains and sue, i-- ..r- of the great court established in the 

 Norman period, under the title of an/a regi, which ws iliviii- 

 ed, very naturally, into several departments, for the trial of 

 different km, I- of picM ; aiiil, lit length, these several branches 

 of one jurisdiction became so many distinct courts- 



The ktng't bench is considered as the most direct successor 

 to the aula regit, in Westminster hall. In this court, the sove- 

 reign is by a fiction, supposed to preside in person, aud the 

 writs are, accordingly, made returnable " before the king-, 

 wherever he inny be in England," because the court formerly 

 followed the king \ < different parts of the kingdom, and WHS 

 once held, in the twenty-first year of Edward I., at Roxburgh, 

 in Scotland ; but. for many centuries, its sittings have been 

 held in Westminster hall, and the king never presides at its 

 sitting*. Sir Edward Coke pays, if he were present, still jus- 

 tice .-..uM be administered only by the justices, in the same 

 n- inner as if he were absent ; and Sir William Blackstone says, 

 when James II. sat there, he was told by the justices that he 

 must not give his opinion. The three courts of Westminster 

 hall, at the time when they were constituted out of the aula 

 irfi*, had jurisdiction of distinct kinds of actions ; the king's 

 bench having cognizance of criminal suits, the common pleas 

 of suits between party and party respecting land titles and on 

 contracts, and the exchequer in matters of revenue. These 

 courts have also a jurisdiction in respect to the person, and not 

 resting wholly on the kind of action. Kvery one, for instance, 

 has jurisdiction of suits in which its own attorneys, or .-ome 

 other of its officers, are parties ; and through this right of ju- 

 risdiction, in relation to the person, the king's bench has drawn 

 tu itself cognizance of actions of almost all descriptions, in 

 ivhich the proceedings are nt common law, except real actions ; 

 nor does this exception much abridge its jurisdiction, for title 

 to lands, in England, is tried in personal suits, between the 

 parties to n real or supposed lease of the lands in dispute. This 

 general jurisdiction was acquired upon the principle that no 

 other court could bring before it a person imprisoned by the 

 king's bench ; and, in respect to every such person, therefore, 

 suits must he brought against him in that court, or there would 

 be a failure of justice, as long as he should thus continue to De 

 imprisoned. A defendant being, accordingly, once arrested and 

 imprisoned, in an action brought before this court, might, while 

 so in custody, be sued in any civil action, in the same court. 

 By taking one step farther, the jurisdiction was made general 

 in such actions, namely, by adopting the fiction that the de- 

 fendant was imprisoned by the court. The great mass of the 

 present business of this court, wliich fills the reports of its pro. 

 ceedings, i brought under its cognizanc* by this fiction. It 

 has also supervision of all the inferior courts of common laxv 

 throughout the kingdom, from all which a writ of error lies to 

 this court. It may also punish magistrates and officers of jus- 

 tii-e for wilful and corrupt abuses of their authority. This spe- 

 cie-i of supervision has, in some cases, been extended to other 

 than civil and judicial officers, as in the case mentioned by Noy, 

 where the court issued a mandamiu to the bishop of Exon to 

 nllow the sacred unction and baptismal oil to the people of a 

 certain parish, to whom they had been denied by him. This 

 powerof supervision is frequently exercised by ordering officers 

 i>f corporations to discharge the duties incumbent upon them. 

 This court does not take cognizance of sny civil action in which 

 the amount in dispute is less than forty shillings. Actions are 

 brought from the common pleas to this court, and are also car- 

 ried from the king's bench to the exchequer chamber or the 

 house of lords by writ of error. 



The common pleat, originally having jurisdiction of civil 

 causes, between party and party, was, like the king's bench, 

 ambulatory, mo.ving with the king wherever he went in the 

 kingdom. But, by the eleventh chapter of Magna Charta, it 

 u-.>s ordained that it " should not follow the court, but be held 

 in some certain place." 1 his court is still distinguished by 

 some of the characteristics of its original constitution, for it has 

 the jurisdiction of real actions, and has no jurisdiction in felony 

 and treason. Like the king'e bench, it may issue writs of ha- 

 beai corput, which may be issued by the whole court or any 

 one of its judges, t > bring up a person imprisoned, and inquire 

 into the cause of his imprisonment, and set him at liberty if he 

 is confined without lawful cause. A writ of error lies from it 

 to the king's bench. It consists of a chief-justice and three 

 justices. 



The court of exchequer, having jurisdiction of that part of 

 the general business of the aula regit which relates to the re- 

 venue, derives it-* name from a chequered cloth (exchequier, a 

 chess-board, or chequer-work) on the table. There are reck- 

 oned seven courts in the exchequer; viz. 1. of pleas; 2. of ac- 

 count*; 3. of receipt!; 4. of exchequer chamber (where all the 

 twelve judges of England assemble to consult on difficult mat- 

 ters of ia\v) ; 5. of exchequer chamber for errors in the exche- 

 quer ; 6. for errors in the king's bench ; 7. of equity. The court 

 of equity is held by the lord treasurer, the chancellor of the ex. 

 chequer, and four barons of the exchequer. The four barons, 

 in fact, are the regular and constant judges of this court, in 

 which is transacted the business originally belonging to the 

 exchequer, namely, the calling the king's debtors to account, 

 on bills being filed against them by the attorney-general, and 

 the recovering lands, chattels, or profits belonging to the kii'g. 

 A c.xirt of common lasv is also held by these four barons. And, 



in both these courts, civil actions, in general, may 1 e hri'iight. 

 under pretence or on the fiction that the plaintiff is the king'* 

 debtor, and the less able to discharge the dues to the king, be- 

 cause his own debtor, the defendant, neglects to make the |i:iy- 

 ment or <io tlie act demanded ; the tact whether the pluintilt is, 

 as he alleges in his writ, the king's debtor, being never in. 

 quired into. One of these courts of exchequer chamber is 

 merely an assembly ol all the judges of the three superior 

 conns, for consultation in mutters of lu. The court of ex- 

 chequer chamber, for the correction of errors in the common 

 law courts of exchequer, constituted by the statute of the 31 

 Edw. III., chap. Is?, consists of the lord chancellor, the lord 

 treasurer, and the judges of the king'sbeiicli and common plea*. 

 The other court of exchequer chamber, for the correction of 

 errors in the king's heirvh, in certain cases, is constituted by tin- 

 statute of 27 Elizabeth, chap. 8, and consists of the judges o'l t in- 

 common pleas and the barons of the exchequer. \\V have seen 

 (hat the three courts of king's bench, common pleas, and ex- 

 chequer have, all of them, by means of the fictions above men. 

 tioned, concurrent jurisdiction of civil actions in general ; and, 

 if there were no higher tribunal for the supervision and cor- 

 rection of their decisions, they might diverge into different 

 principles of adjudication, so that xvhat was law in one would 

 not be so in another, and thus uncertainty might be introduced 

 into rights and obligations of every kind. Accordingly, every 

 community requires to have one ultimate tribunal ol appeal oil 

 all questions of the same description ; and the judicial system 

 of (ireat Britain is constituted upon this principle. 1 he king's 

 bench may, on writ of error, revise the decisions and correct 

 the errors of the common pleas ; the exchequer chamber, con- 

 sisting of the judges of the common pleas and court of exche. 

 quer, may revise those of the king's bench ; and the court of 

 exchequer chamber, consisting of the lord chancellor and lord 

 treasurer, with the judges of the king's bench and common 

 pleas, may revise those ol the common law courts of exchequer ; 

 and from all these, as also from the court of chancery, the 

 equity side of the court of exchequer, and from the superior 

 courts of Scotland and Ireland, actions may be carried, by writ 

 of error or appeal, to the house of lords, the highest judicial 

 tribunal in the kingdom. 



The j udges of each of the courts of king's bench, common pleas, 

 and exchequer are usually four ; and this number is so well es- 

 tablished by usage, that the expression the -'twelve judges of 

 England" is used to signify the court of exchequer chamber 

 already mentioned, including all the judges of these courts. IJut 

 the number of these judges lias, as we learn from Mr \\ oodilc- 

 son, sometimes been five, and again, at others, less than four, 

 there having been but two in the beginning of Trinity term, 

 1655, in Cromwell's time, in the king's bench, then called the 

 upper bench. The judges anciently held their office during tin- 

 pleasure of the king ; but now, by the statutes of 12 mid 13 of 

 William III., chap. 2, aud 1 George III., chap. 23, during good 

 behaviour; and their commissions do not expire on the de- 

 mise of the crown. When the jndges of either ot the com ts are 

 equally divided, a meeting of the twelve judges is held in the 

 exchequer chamber, to consult on the matter. 



The house of Lords, in its character of a judicial court, is the 

 highest tribunal in the kingdom, to which civil actions are 

 carried, by writ of error, from the two courts of error already 

 mentioned, as held in the exchequer chamber, and from the 

 court consisting of the twelve judges; also from the king's 

 bench, from which latter court some actions may be carried, as 

 we have already seen, to the court of exchequer chamber ; but 

 the party aggrieved by the judgment of tire, king's bench has 

 hi- election, in actions of that description, to go immediately to 

 the house of lords, if he so chooses. So civil actions may be 

 brought before this court by appeal from the chancery and the 

 equity side of the exchequer, and by writ of error or by appeal 

 from the highest courts of Scotland and Ireland. Actions were 

 formerly brought, in the first instance, before the aula regix,tt> 

 wliich, of all its surviving successors, the house of lords bears 

 the greatest resemblance ; and petitions continued to be pre- 

 sented to the house of lords, from the reign ot Edward I. to 

 that of Henry VI., to take cognizance of suits in the first in. 

 stance ; but the lords uniformfy referred the petitioners to the 

 other courts ; and they entertain no civil action except on ap- 

 peal or writ of error. The practice of bringing cases, by writ 

 of error, from the courts of common law, has prevailed ever 

 since the establishment of those courts ; but appeals from the 

 court of chancery are of later date, having commenced in the 

 latter part of the reign of Charles I., after the court of chan- 

 cery had succeeded in establishing its present extensive juris- 

 diction against the opposition of the common law courts. 1 he 

 reason commonly given in favour of this right of appeal is, that 

 it ought not to be left to the chancellor to bind the whole pro- 

 perty of the kingdom, by his decrees, without any power of 

 revision. The house of lords, also, exercises a very important 

 original criminal jurisdiction, in respect to the person ; for all 

 peers, including all the Scottish nobility, whether of the sixteen 

 who are members of the house or not, an*, the queen, duchesses, 

 countesses, and baronesses, are exempt from a trial by jury, for 

 treason or felony, being liable to be tried for those crimes only 

 by the house of lords; and they are not only entilld to this 

 mode of trial for these crimet but are bound to it and cannot 

 waive it, and put themselves upon trial by jury. In case a 

 peer marries a woman not of noble blond, she is to be tried 

 only by the lords for the above offences , but if she aftern ards 

 lose her rank by marrying a commoner, she ceases to be enti- 

 tled to this mode of trial. The quettion does not seem to be inlly 

 settled, whether bishops, who have a seat in the house of lords, 

 must be tried by that body, or are subject to be tried for trea. 

 son or felony by jury. It has always been customary, in U 

 capital trials, in the house of lords, for the bi-h./p- t > withdraw 



