but courts invested with a general common law jurisdiction in law or equity are, when exercising their general jurisdiction, superior courts within the meaning of the rule.

In Kemple's Lessee v. Kennedy, 5 Cr., 185:

CH. J. MARSHALL, defines inferior courts to be "courts of special and limited jurisdiction, which are erected on such principles that their judgments, taken alone, are entirely disregarded and the proceedings must show jurisdiction."

In Grignon's Lessee v. Astor, 2 How. U. S., 319, Mr. Justice Baldwin said: “The true line of distinction between courts whose decisions are conclusive if not removed to an appellate court, and those whose proceedings are nullities if their jurisdiction does not appear on their face, is this: a court which is competent by its constitution to decide on its own jurisdiction, and to exercise it to a final judgment, without setting forth in their proceedings the facts and evidence on which it is rendered, whose record is absolute verity, not to be impugned by averment or proof to the contrary, is of the first description; there can be no judicial inspection behind the judgment, save by appellate power. A court which is so constituted that its judgment can be looked through the facts and evidence which are necessary to sustain it; whose decision is not evidence of itself to show jurisdiction, and its lawful exercise, is of the latter description; every requisite for either must appear on the face of their proceedings, or they are nullities."

A court may be limited and subordinate in its jurisdiction and yet not be an "inferior court, in the sense that it ought to certify every thing precisely." Peacocke v. Bell and Kendal, 1 Saund., 74.

In the application of these principles it has been held that the Circuit, District and Territorial Courts

of the United States though of limited jurisdiction are not "inferior" courts under the rule. Kemple's Lessee v. Kennedy, 5 Cr., 185; 1 Smith Lead. Cas., 5 ed., 846.

In the several states there has been some diversity in the application of the rule to particular courts. In New York the "Surrogate Court" is held to be "inferior;" but in Pennsylvania, Maryland and Alabama the "Orphan's Court," and in Arkansas the Probate Court" are held to be "superior."

66

In New York the general sessions of the peace in the several counties are held to be "inferior," while in Pennsylvania, Vermont and Connecticut, a Justice's court is, under the rule, held to be "superior." Dening v. Corwin, 11 Wend., 647; Smith v. Fowle, 12 lb., 911; South Car. Law Jour., 195; 1 Eng., 41, 182, 371; Fridge v. The State, 3 Gill & Johns., 103, 113; Wilson's heirs v. Wilson's admr., 18 Ala., 179; McPherson v. Cunliff, 11 S. & R., 422; Herr v. Herr, 5 Barr., 428; 1 Smith Lead. Cas., 5 ed., 847; Clark v. Mc Comman, 7 W. & S., 469; Holcomb v. Cornish, 8 Conn., 345; Wright v. Hazen, 24 Vt., 143.

In the last case the court say:

"We are aware that the decisions in New York, and probably in some other states, have required the justice to know the facts limiting the extent of his jurisdiction at his peril. But no such rule has ever been applied to courts of general jurisdiction either in Westminster Hall or in this country; and the jurisdiction of justices of the peace has become so important and extensive that we incline to believe sound policy requires us to extend the same rule of construction in favor of their jurisdiction, which is done in favor of courts of general jurisdiction."

2. Of presumptions relating to superior courts. The following propositions are founded in reason, and appear to be warranted by the authorities. The cases are fully collected and commented on in the American note in 1 Smith Lead. Cas., 5 ed., 816; see also, 2 Cowen & Hill's Notes, n. 87, p. 779:

1st. If it appears by the record expressly, or by necessary implication that the cause of action was beyond the jurisdiction of the court, or that the court proceeded without notice to the parties, no presumptions in favor of jurisdiction arise, and the judgment will be void.

2d. If the court is not in the exercise of its general jurisdiction, but of some special statutory jurisdiction, it is as to such proceeding an inferior court and not aided by presumptions in favor of jurisdiction.

3d. If the record contains a recital of the facts requisite to confer jurisdiction it is conclusive and cannot be contradicted by extrinsic evidence.

4th. If the record is silent as to the jurisdictional facts, they will be presumed to have been duly established; but such presumption may be rebutted by extrinsic evidence.

3. Of presumptions relating to inferior courts. In respect to inferior courts the following propositions appear to be warranted by the authorities:

1st. If the record does not show upon its face the facts necessary to give the court jurisdiction, they will be presumed not to have existed; but this presumption may be rebutted and the jurisdictional facts established by extrinsic evidence.

2d. If the record recites the facts which are preliminary, or conditions precedent to the right to hear and determine the merits of the cause, it is prima facie evidence only of their existence, and may be disproved by extrinsic evidence.

3d. If the record recites facts essential to jurisdiction, which must necessarily be considered and decided in determining the merits of the cause, it is as to them conclusive, and cannot be contradicted collaterally.

4th. When the facts required to confer jurisdiction are sufficiently established, the records of inferior courts have the same conclusiveness as those of superior courts, and are aided by the same presumptions.

SECTION VI.

GENERAL WARRANTS.

General warrants, either to arrest persons suspected of crime or to search suspected places for stolen or contraband goods, without describing the particular person to be arrested or the place to be searched, were undoubtedly contrary to the spirit of English liberty and the principles of the common law. 2 Hale, 150; 2 Hawk., 132. But they were not unfrequently granted. 4 Burns' J., 130.

It was not, however, until 1763 that their legality was brought in question in the higher courts. In that year, in the case of Wilkes v. Wood, Loft., 18, Lord Camden appears to have avowed his opinion of their illegality. In 1765 in the case of Money v.

Leach, 3 Burr., 1743, Lord Mansfield and the whole court declared that general warrants to seize the person, unless in cases specially authorized by acts of parliament, were illegal and void; and yet the point really decided in that case was that the warrant had not been well executed. "On the 22d of April, 1766, the House of Commons passed a resolution condemning general warrants, in the case of libels; and lest this limitation should impliedly authorize the use of them upon other occasions the House, three days afterwards, passed another vote, by which they were declared to be universally illegal." 2 Hawk., 131, n.

But before these resolutions in the House of Commons, and before the decision of these cases, in the British courts, the oppression of general warrants was felt in America ånd was resisted with that jealous and dauntless spirit which the ardent and enlightened love of liberty of the colonists could not fail to inspire.

To enforce the Acts of Trade "writs of assistance" had been granted to the officers of the customs, who in some instances exercised their power under them wantonly and with the most exasperating insolence.

These writs possessed the odious features of general warrants—indefinite, transferable, discretionary and irreturnable-detested engines of oppression.

The people grew uneasy; the legality of the warrants was denied. Upon application made to the Court at Boston in February 1761 by one of the custom-house officers for such a writ, an exception was taken to the application.