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Jurisdiction. On the plea side, or civil branch, it has an original jurisdiction, and cognizance of all actions of trespass or other injury committed vi et armis, of actions for forgery of deeds, maintenance, conspiracy, deceit, and actions on the case, which allege fraud; all of which savor of a criminal nature, although the action is brought for a civil remedy, and makes the defendant liable to pay a fine to the king, as well as damages to the injured party. The same doctrine is now extended to all actions on the case : but no action of debt or detinue or other mere civil suit can, by the common law, be prosecuted by any subject in this court by original writ out of chancery. An action of debt, given by statute, may be brought in the king's bench, as well as in the common pleas. In process of time, it began to hold pleas for all personal actions whatsoever.
7. Court of Exchequer. This court is inferior in rank to both that of king's bench and the court of common pleas, but is a court of law and of equity also. It is a very ancient court of record, and intended principally to order the revenues of the crown, and to recover the king's debts and duties. It is called exchequer, from the checked cloth, resembling a chess board, that covers the table. By their original constitution, the jurisdiction of the courts of common pleas, king's bench and exchequer were entirely separate and distinct, the common pleas being intended to decide all questions between subject and subject, the king's bench to correct all crime and misdemeanors that amount to a breach of the peace, and the exchequer to adjust and recover the king's revenue. But now nearly all kinds of civil actions may be brought in the king's bench, and all kinds of personal suits may be prosecuted in the court of exchequer. The writ, upon which all proceedings here are grounded, is called a quo minus, in which the plaintiff suggests he is the king's farmer or debtor.
8. High Court of Chancery. This, in matters of civil property, is the most important court of justice. Its name of chancery, cancellaria, is from the practice of cancelling the king's patents when issued contrary to law.
Chancellor's Powers. The office and name of chancellor was known to the courts of the Roman empire. He is a privy counsellor. To him belongs the appointment of all justices of the peace, and he is visitor of all hospitals and colleges. He is the general guardian of all infants, idiots and lunatics, and has the superintendence of charitable uses. In his judicial capacity in the court of chancery he has vast and extensive jurisdiction, one ordinary in a conrt of common law, the other extraordinary, in a court of equity.
1 This last clause is not the present practice.
Ordinary Powers. The ordinary legal court is much more ancient than the court of equity. Its jurisdiction is to hold plea upon a scire facias' to repeal the king's letters patent, when made against law, and to hold plea of petitions, traverses of offices and the like, when the king has been advised to do any act or been put in possession of any lands or goods, in prejudice of a subject's rights. On proof of which, as the king can do no wrong, the law questions not, but the king will redress the injury, and refers that task to his chancellor, the keeper of his conscience. The court also holds plea of all personal actions, where an officer of the court is a party. The chancellor cannot try a cause, as he has no power to call a jury, but he must deliver the record into the court of king's bench, where it shall be tried by the country, and judgment shall be given thereon. And when judgment is given in chancery, upon demurrer or the like, a writ of error, in the nature of an appeal, lies out of this ordinary court to the court of king's bench, though such writ has not been taken out for several centuries. In the ordinary court, all original writs issue that pass under the great seal, all commissions of charitable uses, sewers, bankruptcy, idiocy, lunacy and the like.
Extraordinary Powers. As a court of equity, the court of chancery is of the greatest judicial consequence. The distinction between law and equity, as administered in different courts, never seems to have been known. The earlier writers never speak of the equitable jurisdiction of the court of chancery. It seems probable, that when the courts of law gave a harsh or imperfect judgment, the application for redress used to be to the king in person, and his privy council. They were wont to refer the matter to the chancellor, who mitigated the severity, or supplied the defects of the judgment. In these early times, the chief judicial employment of the chancellor must have been in devising new writs, directed to the courts of common law, to give remedy in cases where none was before administered.
Appeals. From this court of equity in chancery, as from the other superior courts, lies an appeal to the house of peers. The differences between appeals from a court of equity and writs of error from courts of law are:
1. That the former may be brought upon any interlocutory matter, the latter upon nothing but a definite judgment.
2. That on writs of error, the house of lords pronounces the judgment, and on appeals, it gives directions to the court below to rectify its own decree.
9. Court of Exchequer Chamber. This has no original jurisdiction. It is only a court of appeal.
10. House of Peers. This is the supreme court of judicature in the kingdom. It has no original jurisdiction, but only upon appeals and writs of error, to rectify any injustice or mistake of the law committed by the courts below. On the dissolution of the aula regia, this august tribunal succeeded to such authority. It is the last resort in all causes, and every subordinate tribunal must conform to its deierminations.
11. Courts of Assize and Nisi Prius. These are composed of two or more commissioners, who are sent through the kingdom, except in London and Middlesex, where courts of nisi prius are held each term before the judges of the superior courts, 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 Westminister. Our ancestors ordained, that no man should be a judge of assize in his own county.
Sub-divisions and Duties. 1. The commission of the peace. 2. Commission of oyer and terminer. 3. A commission of general jail delivery. 4. A commission of assize, directed to take the verdict of a jury of assize, and summoned for the trial of landed disputes. 5. Commission of nisi prius, empowering the justices to try all questions of fact issuing out of the courts of Westminster that are ready for trial. These are usually appointed to be tried at Westminster on a day named, unless before, nisi prius, the day fixed, the judges come to that court. CHAPTER V.-COURTS ECCLESIASTICAL, MILITARY,
History. In the time of our Saxon ancestors, there was no distinction between the lay and ecclesiastical jurisdictions. Under the papal policy, it was an established maxim, that all ecclesiastical persons and all ecclesiastical causes should be solely subject to ecclesiastical jurisdiction, which jurisdiction was lodged in the pope by divine right. It was not, however, until the Norman conquest that this doctrine was received in England, and the ecclesiastical court was separated from the civil.
Different Kinds. 1. Archdeacons. 2. Consistory. 3. Court of arches. 4. Court of peculiars. 5. Prerogative court, for the trial of testamentary causes, where the deceased left property within two different dioceses. 6. The court of delegates, which was the great court of appeal. 7, Commission of review, granted only in extraordinary cases, to reverse the sentence of the court of delegates. None of these were courts of record.
Military Courts. Courts of chivalry. Not courts of record. Virtually obsolete.
Maritime Courts. The court of admiralty and its court of appeal. Its proceedings are according to the method of the civil law. It is held before the lord high admiral of England, and is not a court of record.”
CHAPTER VI.-COURTS OF A SPECIAL JURISDICTION.
1. Forest courts, for the government of the king's forests.
. 4. Court of marshalsea, where one or both parties is or are in the king's domestic service.
5. Court of the principality of Wales.
1 This Jurisdiction has been extended.
6. Court of the duchy chamber of Lancaster.
9. Courts of London and other cities, of a private and limited species.
10. The chancellor's court of the two universities.
CHAPTER VII.-COGNIZANCE OF PRIVATE WRONGS.
1. ECCLESIASTICAL COURTS.
Causes Tried Therein. Three causes, pecuniary, matrimonial, and testamentary.
Pecuniary Causes, For withholding dues or tithes, also for spoliations, dilapidations, and neglect to repair churches, satisfaction could be obtained in the ecclesiastical courts.
Matrimonial Causes. I. Jactitation of marriage, or the boasting of the existence of a marriage, which never actually took place. 2. To compel the celebration of a marriage. This no longer exists. 3. For the restitution of conjugal rights, where one party unlawfully lives separated from the other. 4. Divorce for cause arising after marriage. In this case a divorce a mensa et thoro may be applied for. For cause existing previous to the marriage, a divorce a vinculo matrimonii may be sought. 5. For alimony. None was allowed, where the wife was adjudged guilty of adultery. Dower also was refused.?
Testamentary Causes. Divisible into three branches : the probate of wills, the granting of administrations, and the suing for legacies.3
Practice. Proceedings in the ecclesiastical courts are regulated according to the practice of the civil and the canon laws, or rather according to a corrected mixture of both, by citation, by libel (libellus, a little book), specifying the allegations, by answer and proofs. Decided by a a single judge without a jury. The
1 Unimportant, by recent statutes. 2 All these causes are now transferred in England to the divorce court. 3 This jurisdiction, much extended, is vested in the probate courts.