abolition of military tenures, co-operated 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 of lords pronounces the judgment, on appeals it gives direction to the court below to rectify its own 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 by 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 them the justices of the king's bench and common pleas. In imitation of which a second court of exchequer chamber was erected by statute 27 Eliz., ch. 8, consisting of the justices of the common pleas, and the barons of the exchequer, before whom writs of error may be brought to reverse judgments *in certain [*56] suits (1) 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) From all the branches of this court of exchequer chamber, a writ of error lies to X. The house of 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 parlia ment were constituent members of that court; and the rest of its 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 cases 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. (5) (1) See chap. 25, p. 411. (m) 4 Inst. 119. 2 Bulst. 146. (5) In practice the house of lords, when sitting to hear appeals, is composed only of the "law lords," as they are called; that is, the peers who at the time hold judicial positions or who have heretofore held such positions. Every peer indeed has the right to be present and participate, but it is a right which is not, and could not often with propriety be, asserted, since few except the law lords have any such training as would fit them for the duties to be performed. A quorum of peers must be present, but three is a quorum of the house of peers, and two besides the chancellor would be sufficient to constitute this court. Hitherto may also be referred the tribunal established by statute 14 Edw. III, c. 5, consisting (though now out of use) of one prelate, 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, [ *57] for want of a supreme court of appeal during any long intermission or recess of parliament; for the statute farther directs, that if the difficulty be so great, that it may not well be determined without assent of parliament, it shall be brought by the said prelate, earls and barons, unto the next parliament, who shall finally determine the same. 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 assize and nisi 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 nisi prius are holden in and after every term, before the chief or other judge of the several superior courts; and except the four northern counties, where the assizes are holden only once a year), (6) 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 assize came into use in the room of the ancient justices in eyre, justiciarii 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. (0) They were afterwards directed by magna carta, c. 12, to be sent into every county once a year, to take (or receive the verdict of the jurors or recognitors in certain actions, then called) recognitions or assizes; 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 assize or of dower, or of gaol-delivery, and the like; and *they had sometimes a more general [*58] commission to determine all manner of causes, being constituted justiciarii ad omnia placita: (p) but the present justices of assize and nisi 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 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,) assizes 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 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 assize, so that one of such justices be a judge of the king's bench or common pleas, or the king's serjeant sworn. (n) Seld. Jan. 1. 2, § 5. Spelm. Cod. 329. (0) Co. Litt, 293. Anno, 1261, justiciarii itinerantes venerunt apud Wigorniam in octavis 8. Johannis baptista; et totus comitatus eos admittere recusavit, quod septem anni nondum erant elapsi, postquam justiciarii ibidem ultimo sederunt. (Annal. Eccl. Wigorn, in Whart. Angl. sacr. I, 495.) (p) Bract. 1. 8. tr.1. c. 11. Formerly it was not necessary that the three be law lords, and if two chanced to be lay members, and the decree under review was one made by the chancellor himself, his own vote would affirm it, as the lay members would take no part. But now three lords of appeal are required to be present in hearing every case. For the law as to this see note 1, p. 30. (6) But now the assizes are held here twice a year. They usually make their circuits in the respective vacations after Hilary and Trinity terms; assizes 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. 1, c. 51. And it was also usual during the times of popery, for the prelates to grant annual licenses to the justices of assize to administer oaths in holy times: for oaths being of a sacred nature, the logic of those (deluded) ages concluded that they must be of ecclesiastical cognizance. (q) The prudent jealousy of our ancestors ordained (r) that no man of law should be judge of assize in his own county, wherein he was born or doth inhabit; and a similar prohibition is found in the civil law, (s) 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. (t) The judges upon their circuits now sit 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 [*59] fourth commission is, 4. A commission of assize, directed to the justices and serjeants therein named, to take (together with their associates) assizes in the several counties; that is to take the verdict of a pecular species of jury, called an assize, and summoned for the trial of landed disputes, of which hereafter. The other authority is, 5. That of nisi prius, which is a consequence of the commission of assize, (u) being annexed to the 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 (20) 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, nisi prius, unless before the day prefixed the judges of assize 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 certain persons (usually the clerk of assize and his subordinate officers) are directed to associate themselves with the justices and serjeants, and they are required to admit the said persons into their society, in order to take the assizes, &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 si non omnes; directing that if all cannot be present, any two of them (a justice or a 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 economy and admirable provision of our ancestors, in settling the distribution of justice in a method so well calculated for cheapness, expedition, and ease. By the constitution which they established, all trivial debts, and injuries of small consequence, were to be recovered or re [*60] dressed in every *man's own county, hundred, or perhaps parish. Pleas (q) Instances hereof may be met with in the appendix to Spelman's original of the terms, and in Mr. (3) Ff. 1, 22, 8. (t) C. 9, 29, 4 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 neighbors; 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 successive 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 sap the fundamentals, of the law. Lastly, there presides 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 equilibrium 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 the 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 its 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. (7) (7) The courts of the United States consist of the following: 1. The senate as a court of impeachment. 2. The supreme court. 3. The circuit courts. 4. The district courts. 5. The court of claims. 6. The supreme court of the District of Columbia. 7. The territorial courts. The court of impeachment derives its authority from article 1, section 3 of the constitution, and is sufficiently spoken of elsewhere. The judicial power generally is conferred by article 3, section 2. The supreme court has original jurisdiction of all cases affecting ambassadors, other public ministers and consuls, and of those to which a state shall be a party. It also has appellate jurisdiction from the circuit court in tivil cases, where the matter in dispute exceeds $2000, and from the highest state court of each state, in any case where has been drawn in question the validity of a treaty, or of a statute of, or an authority exercised under, the United States, and the decision of the state court has been against its validity; also where has been drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of its being repugnant to the constitution, laws or treaties of the United States, and the decision of the state court has been in favor of such state law or authority; also where the decision of the state court has been against a right claimed under any clause of the constitution of the United States, or under any treaty or statute of or commission held under the United States; it has also appellate jurisdiction from the territorial courts where the amount in dispute exceeds $1000, except from Washington territory, where it must exceed $2000; and from the supreme court of the District of Columbia and from the court of claims, where the amount in controversy exceeds $3000; and in any other case where the judgment or decree may present a constitutional question or furnish a precedent for a class of cases, the United States may appeal without regard to the amount in controversy. The United States circuit courts have original jurisdiction, concurrently with the state courts, of all civil suits, at common law or in equity, where the matter in dispute exceeds $500, and the United States is a plaintiff, or an alien is a party, or where the suit is between a citizen of the state in which it is brought and a citizen of another state. They have exclusive jurisdiction of all crimes and offences cognizable under the authority of the United States, except where specially otherwise provided; and concurrent jurisdiction with the district courts of the crimes and offences cognizable therein. Under the patent laws they have jurisdiction in equity to restrain infringements. They have also appellate jurisdiction from the district courts where the matter in dispute exceeds $50. The district courts have jurisdiction exclusively of the state courts, and concurrently with the circuit courts, of all crimes and offences cognizable under the authority of the United CHAPTER V. OF COURTS ECCLESIASTICAL, MILITARY AND MARITIME. BESIDES the several courts which were treated of in the preceding chapter and in which all injuries are redressed, that fall under the cognizance of the common law of England, or that spirit of equity which ought to be its constant attendant, there still remain some other courts of a jurisdiction equally public and general; which take cognizance of other species of injuries, of an ecclesiastical, military and maritime nature; and therefore are properly distinguished by the title of ecclesiastical courts, courts military, and courts maritime. I. Before I descend to consider particular ecclesiastical courts, I must first of all in general premise, that, in the time of our Saxon ancestors, there was no sort of distinction between the lay and the ecclesiastical jurisdiction: the county court was as much a spiritual as a temporal tribunal; the rights of the church were ascertained and asserted at the same time, and by the same judges, as the rights of the laity. For this purpose the bishop of the diocese, and the alderman, or, in his absence, the sheriff of the county, used to sit together in the county court, and had there the cognizance of all causes, as well ecclesiastical as civil: a superior deference being paid to the bishop's opinion in spiritual matters, and to that of the lay judges in temporal. (a) This (a) Celeberrimo huic conventui episcopus et aldermannus intersunto; quorum alter jura divina, alter humana populum edoceto. L. L. Eadgar. c. 5. States, committed within their several districts or upon the high seas, where the punishment is not capital. They have also exclusive cognizance of all civil causes of admiralty and maritime jurisdiction, including seizures under the laws of impost, navigation or trade of the United States; and of all seizures on land or water under the laws of the United States, and of all suits for penalties and forfeitures incurred under those laws. They have also jurisdiction concurrently with the state courts and circuit courts, of all cases where an alien sues for a tort, done in violation of the law of nations or of a treaty of the United States; also of all suits at common law where the United States or any officer thereof, under the authority of an act of congress, may sue; also exclusive of the state courts of all suits against consuls or vice-consuls except for capital offences. These courts also have jurisdiction in bankruptcy cases. The territorial courts possess such powers as are specially conferred upon them by the acts providing for their creation. The supreme court of the District of Columbia is a court of general jurisdiction in law and equity: any one of its judges may hold a district court with the powers of the other district courts; and may also hold a criminal court for the trial of all crimes and offences arising within the district. From the special terms held by one judge appeals may be taken to the general term held by all or a quorum of all. The court of claims has authority to hear and determine all claims founded upon any law of congress or regulation of the executive department, or upon any contract, express or implied, with the government of the United States, and all claims which may be referred to it by congress; also all set-offs, counter claims, claims for damages liquidated or unliquidated, or other demands whatsoever on the part of the government, against any person making claim against the government in said court. The supreme court consists of one chief justice and eight associate justices, appointed by the president, by and with the advice and consent of the senate, during good behavior. There are nine judicial circuits, for each of which a circuit judge is appointed in like manner and with the like tenure. The circuit courts are held by one justice of the supreme court and the circuit judge, or by the latter and the district judge, or may be held by any one of the three sitting alone. Where two sit together and disagree in opinion, the point of disagreement is certified to the supreme court for its decision. There is one district court for each state, and in some states, two or more. Each district has a district judge appointed in the same manner and for the same term as the justices of the supreme court. The supreme court of the District of Columbia consists of four justices, and the court of claims of five, with the like tenure. The territorial judges hold their offices only during the pleasure of the president. |