it, and required the party to allege some other matter. In short, they gave judgment of respondeat ouster. This might occur several times in the course of the cause. The Court would sometimes overrule, one after the other, several matters successively alleged by either party, until at last some matter was pleaded which the Court thought fit to allow him to rest upon (b). So also, if either party objected to any proceeding in the course of the cause, or to the mode in which it was conducted, or to any act of the Court in relation to the proceedings, the Court at once decided on the sufficiency of the objection, and either allowed or disallowed it at their discretion.

The power which the Court then exercised seems to have been very similar, in substance and effect, to that exercised by the superior Courts at the present day in overruling or disallowing pleas or demurrers.

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During this oral altercation a contemporaneous official minute in writing was drawn up by one of the officers of the Court

(b) See Instances, 2 Reeves's Hist. 344 et seq.

on a parchment roll, containing a transcript of all the different allegations of fact to the issue inclusive; and, in addition to this, it comprised a short notice of the nature of the action, the time of the appearance of the parties in Court, and the acts of the Court itself during the progress of the pleading. The official minute of the pleading and other proceedings thus made on the parchment roll was called the Record. As the suit proceeded, similar entries of the remaining incidents in the cause were from time to time continually made upon it, and, when complete, it was preserved as a perpetual intrinsic and exclusively admissible testimony of all the judicial transactions which it comprised (c)."

The record being thus the "exclusively admissible testimony of all the judicial transactions which it comprised," and being moreover the only foundation upon which a writ of error could be brought, no error in law could be assigned, except such as appeared upon the face of the record itself. However serious in its consequence to the (c) See Steph. Pl. 25, 5th ed.

B 2

parties any error in law might in fact have been, if the record did not in some way disclose it, no writ of error could be brought in respect of such error, and the party injured was without redress.

The record was drawn up under the direction of the Court, and it was under their exclusive control. The parties had no power of themselves to cause any entry on it to be made, and consequently it was in the power of the Court to exclude therefrom such matters as they might consider unnecessary to be entered, however important an entry of them might be to the parties. Before the record was on parchment, it was entirely in the breast of the Court (d), and it was from thence transferred to the parchment roll, its final resting place.

The practice of the Court was not in general to allow any entry to be made of any matter overruled or disallowed by them, or any statement of the fact of its having been overruled or disallowed. The reasons for this practice might be, the complete convic(d) 3 Blacks. Comm. 406.

tion at which they had arrived of the utter frivolity of the matter disallowed, before they disallowed it; the laudable desire not to incumber the record with unnecessary matter; and their anxiety to prevent delay and vexation, which might possibly be occasioned by increasing the number of entries on the record, and thus enlarging the foundations for a writ of error. The proceedings of which entry was made were those of which the Court finally approved, and upon which the parties, in consequence of such approval, were compelled to rely (e). They could not insist upon resting their case on what might seem to them the best ground, nor could they, without the Court's approval and sanction, shape it their own way, and stand or fall by what is generally considered the most satisfactory, though it is not always the most successful, opinion, namely, their own.

From what has been above stated, it will be seen that the Court had the power in many instances of depriving the party of his writ of error. They might decide errone(e) See 2 Reeves's Hist. 347.

ously, and prevent their error from being rectified. They not only possessed the power, or were subject to the liability, of committing error, which seems to be an inseparable accident of all Courts, but they also possessed the highly objectionable, because unnecessary and mischievous, power of preventing their error from being revised; a power which no sound judge would ever wish to possess, but, possessing it, which no judge could fail occasionally to exercise.

It may be easily supposed that the existence of such an arbitrary power, and one so necessarily liable to abuse, would be productive of much injustice, and could not fail to become, in course of time, an intolerable grievance; and this even upon the assumption, and surely not a very extravagant one, that the judges were actuated by the best

motives.

But whatever might have been the motives of the judges, however well intentioned their conduct, the fact is beyond all question, that, in exercising their discretionary power, they created an intolerable grievance. To