of office. There are many officers whose duty it is to take care of the
profits and revenues of the king, and to that purpose they are sworn in
the Exchequer; such as _escheators_, _sheriffs_, and others, whose duty
it is to make enquiry what the king is entitled to in their respective
limits, whether lands or chattels, or by what title. For this purpose
they are to summon juries, and to return the verdicts found to the court
of the revenue of the Exchequer, in order that that court may take care
of the king’s rights. These were called _inquisitions_, or _enquiries_,
_of office_, as proceeding from the duty of an officer that made them.
But these officers being negligent in the performance of this their
duty, it became sometimes necessary, and afterwards customary to quicken
them, by issuing writs for this purpose; and these writs issued out of
Chancery, the _Officina Brevium_; and then, that it might be seen they
were properly obeyed, the return of the inquisition was made into the
court that issued the writ, and thus, the Chancery gained a jurisdiction
in this point, and became an assistant to the Exchequer in the matters
of the king’s revenue; not indeed in the administration thereof, but in
bringing it into the king’s possession[367].
It is a maxim in the English law, that nothing can pass from the king
to a subject but by _matter of record_, which maxim was not only
advantageous to the royal estate, as preventive of persons getting
grants by surprise, but also advantageous to the subject in the firmness
of his title, when once he had obtained it. And, on the contrary, the
regular and equal way of restoring possessions to the crown was by record
also, that is, by inquisitions finding the king’s title returned, as I
have mentioned. But as the verdicts taken in these inquisitions may be
erroneous, and detrimental to another person, by finding what was really
his property, to have been the property of another, and to have accrued
to the king by forfeiture or escheat; and as, regularly, by another maxim
of law, there is no averring against or contesting a record, it was
necessary that the bare return of inquisition into Chancery should not be
final and conclusive, but that time should be given to any that thought
himself affected to claim his right. Hence a month’s time is given by
statute, after the return of the inquisition, in which any person may
come in and _traverse the office_, that is, contest the validity of it.
And here the chancellor is judge, in the same manner as in the repeal
of letters patents, that is, if the subject of the controversy depends
merely upon matter of law; but if the parties come to an issue on matter
of fact, he cannot try it, for the reason above given, but it must go to
the King’s Bench[368].
Another branch of the judicial business is the hearing of petitions to
the king for justice in his own causes. No man, by the feudal principles
of our law, can bring an action against the king. For the charging him
with wrong doing would be a breach of fealty. The king cannot, by our
law, do wrong; but yet, from the multiplicity of his occupations, or from
his being misinformed, the subject may sometimes suffer wrong from him.
The remedy thereof, in this case, is by humble petition to the king, that
he would enquire into the cause, and do justice to the party, which,
though conceived in an humbler strain, is as effectual as an action, and
must be tried in this court, the proper channel to convey his majesty’s
graces, and the king, by his chancellor, dispenses justice to the party.
Another branch of the judicial business of this court was the proceeding
in certain cases against persons privileged, that is, the officers of
the court, who being supposed to be constantly attendant, were to be
sued here, as the officers of other courts, were in their respective
courts.
Lastly, this court had jurisdiction with respect to proceeding upon
_recognizances_, or acknowledgments of obligations taken in this court,
which being here recorded, and not to be removed, were properly here
triable[369].
There are some other causes, proper for the jurisdiction of Chancery,
which would carry me too far at present. I shall, therefore, conclude
here with mentioning one striking difference between this and the other
courts, that they sit only in the times of the four terms, whereas it is
open all the year. The confining the others to the terms arose from the
religion of the times, and the inquisitions of canon law, which forbad
courts to be held during the seasons of the three great festivals, and
of harvest. In obedience to this law, I may say (for the papal power was
then very high in England) was our Michaelmas vacation set apart for the
solemnization of Christmas, the Hillary vacation for Easter, the Easter
vacation for Whitsuntide, and the Trinity or long vacation, for the uses
of husbandry. But great would be the evils, if that court which is the
_Officina Justiciæ_, the Shop of Justice, were to be ever shut. Writs,
therefore, issued hence at all times, and all such causes as, for the
public good, cannot brook delay till the ordinary times of sitting of
other courts, are here handled in the vacations, such as to mention a
few, _habeas corpus’s_ and _homine replegiando’s_, to restore persons
imprisoned to liberty, prohibitions to keep inferior courts within their
proper limits; and _replevins_, to restore the possession of goods
distrained.
But the great business of this court, as a court of common law, was,
that it was the _Officina Brevium_, the shop where original writs were
purchased by suitors, in order to commence their actions. An _original
writ_, in the most common form, is an order to the sheriff to summon
the party complained of to do justice to, or else to answer to the
complainant in the proper court; containing a short description of the
complainant’s title, and the wrong done to him, from whence, in Latin,
it is called _Breve_, and answers to the original citation in the Roman
and ecclesiastical laws. This, and the making out patents, was the
principal business of the chancellor in the _curia regis_, and therefore
naturally continued with him after the division of the courts. The
reasons assigned by Gilbert for having one of these superior courts a
public shop for justice, are three; first, that it might appear that all
power of judicature flowed from the crown; secondly, that the crown might
not be defrauded of the fines due to it for suffering persons to desert
the inferior courts, and to sue for justice immediately from the king;
and lastly, to preserve an uniformity in the law; for these writs being
made out in one constant form contributed greatly thereto, being both a
direction to the judge, and a limitation of his authority.
Originally, the chancellor heard the complaints of the person injured,
and formed a writ according to the nature of the case, but as, among
a rude military people, little versed in commerce, and the variety of
transactions that attend it, the complaints of the people were confined
in a narrow compass, it but seldom happened, after some time, that there
was occasion for making a new writ, in a form different from what had
been used before. These forms, therefore, were collected into a book
of our law, called the _Register_, the antientest book of our law; and
the making them out, being now matter of course, nothing more than
copying out the old terms, inserting the proper names of persons, and
places, and the chancellor’s business encreasing, became devolved upon
the chancellor’s clerks, the _Clerici_, as they were antiently, or the
_Masters_, as they are now called, of Chancery; and they were restrained
from making out any of a different form from those in the Register.
However, as, in process of time, cases would happen which none of the
forms in that book would suit, and it was looked on as the corner-stone
of the law, the chancellor could not of himself venture to make out new
and unusual writs, but referred the complainants, in such cases, to
petition the parliament for remedy[370].
These petitions afterwards growing too frequent, and interrupting the
public business, it was found necessary to enlarge the power of the
Masters of Chancery, and to give them a qualified power of forming new
writs. This was done by the statute of Westminster the second, cap.
24, in Edward the First’s reign; it runs thus: _Quotiescunque de cætero
evenerit me cancellaria, quod in uno casu reperitur breve, & in consimili
casu cadente sub eodem jure, & simili indigente remedio, non reperitur,
concordent clerici de cancellaria in breve faciendo, vel atterminent
querentes in proximum parliamentum, & scribantur casus, in quibus
concordare non possunt, & referant eos ad proximum parliamentum, & de
consensu jurisperitorum fiat breve ne contingat de cætero, quod curia
domini regis deficiat conquerentibus in justitia perquirenda_; which last
words, _ne contingat_, &c. gave a handle, as I shall shew hereafter, to
this court to erect their equitable jurisdiction[371].
We see how this power given to the Masters was limited: it must be
exercised only in cases parallel to such as there was a remedy already
provided for; all the Masters must agree in the form of the new writ; and
the remedy must be the same as was in the similar case in the Register.
To illustrate this by the example of the first writ formed by the Masters
upon this statute, and which therefore, by way of eminence, is called a
_writ, in consimili casu_. The statute of Glocester ordered the Chancery
to form a writ for the relief of the person in reversion, where a tenant
in power had aliened her dower. The writ was accordingly framed, and
inserted in the Register. Now, by virtue of this statute of Westminster,
the Masters framed the writ _in casu consimili_, in favour of the person
in reversion, where a tenant by the courtesy, or tenant for life, had
aliened, he being equally damaged as the former case. But though this was
particularly called _a writ, in casu consimili_, there were many others
formed by virtue of this statute, such as for various kinds of trespasses
unknown in former ages, and actions upon the case, so frequent in these
our days, and so called, because the writ is formed according to the
circumstances of the case, and not upon the old forms continued in the
Register.
This new employment of Masters in Chancery, and the business of the court
encreasing, created a necessity of erecting new officers, to make out the
_brevia de cursu_, namely, those in the Register, who were therefore
called _Curritors_. The chief of the Masters is _Keeper of the Rolls_ of
this court, which was formerly a part of the chancellor’s business; and
he is therefore called _Master of the Rolls_. For ages past, since the
Equity business multiplied in England, this officer has been there, in
matters of equity, an assistant judge to the chancellor, but his decrees
are liable to a rehearing, and to be reversed by the chancellor. But in
this kingdom, the office hath not had any judicial authority annexed to
it.
LECTURE XXXIV.
_The court of Common Bench or Common Pleas—The jurisdiction
of this court—Actions real, personal, or mixt—The court of
Exchequer—The jurisdiction of this court—Exchequer chamber—The
judicature of Parliament._
The next of the superior courts, is the _Common Bench_, or _Common
Pleas_, as it is more commonly called, being the proper court for the
determining suits between subjects, wherein the king is not concerned;
and upon the multiplication of business in the _curia regis_, it was
separated from it, for the more speedy and easy dispatching the affairs
of the people. As in the very old times the king often sat in person in
the _curia regis_, and that he might have an opportunity of so doing when
he pleased, that court always followed the king wherever he went within
the kingdom of England; and in those days it was customary for the kings
to take progresses; and reside in the different seasons of the year in
different parts of the kingdom, as we see, by the variety of places where
the parliaments were held in old times. The same practice of the courts
and the records following the person of the king continued in France
longer than in England. For when king John was taken by the black prince
at the battle of Poictiers, the antient records of that kingdom were
lost, and there are scarce any now remaining there, of what had passed
previous to that time, except enrolments made since, of the antient
charters that were in the hands of the subjects.
But in England the constant removal of the courts was found very
burdensome to the people, who had suits much earlier. For their ease,
therefore, it was enacted in _Magna Charta_, that _communia placita non
sequantur curiam nostram, sed teneantur in aliquo certo loco_; that the
Court of Common Pleas should no longer be ambulatory, but held in one
certain place. Westminster was the place fixed upon, and there, if we
except some occasional removals, on account of epidemical sicknesses,
hath it been held ever since. And in long space of time after, the other
courts became, though not in pursuance of any positive law, fixed
there also. By their becoming settled in a certain place, one great
inconvenience, besides the hardships on the suitors, was avoided, namely,
the loss and imbezzlement of the records by these frequent removals. For
it is very remarkable, that there is not a record remaining of the times
previous to the fixing of the courts, not even the enrolments of the acts
of parliament themselves, except a few, and a very few, of the courts
of Exchequer, which, concerning the king’s revenue, were more carefully
preserved[372].
But the greatest advantage that attended this change was the improvement
of the law, and, what was a consequence thereof, the preservation of
the liberty of the subject. For now it became much more convenient
for persons to apply to that study, when they were no longer under
a necessity of removing. And we therefore, soon after, find the
practitioners of the law settled together, something in a collegiate
manner; and after the dissolution of the order of Knights Templars, the
habitation of these latter, called the _Temple_, was granted to them
for their residence and improvement. Here, they continued to confer the
degrees of _Apprentices, or Barristers at law_, and _Sergeants at law_,
which they had began before, in imitation of the bachelors and doctors
degrees in universities.
The preservation of the liberty of the subject was, as I said before,
another happy consequence that resulted from the fixing the courts, and
the uniting the professors of the law into one body. For as, about this
time the study of the civil and canon laws was eagerly pursued by the
clergy in the universities, and the English customs as much depreciated
by them as possible, and as those two laws were founded on maxims of
despotism, and, as such, encouraged and supported to the utmost by the
popes, and all kings that aimed at arbitrary power, the common lawyers
were necessitated, for the support of their profession, to take the
popular side of the question, and to stickle for the old Saxon freedom,
and limited form of government.
Hence the steady opposition they made, even in those early times, to
the king’s dispensing. Nay, they carried their zeal for liberty so far,
as (since they could not directly, in those days, oppose the weight
of the civil law) to quote the very passages of it that were in favour
of absolute power, and by their glosses make it speak the language of
liberty. Thus Bracton quotes that text: _Quod principi placet, legis
habet vigorem_; that is, in its true meaning, the monarch is sole
legislator: but Bracton’s comment is, _id est, non quicquid de voluntate
regis temere presumptum fuerit, sed quod concilio magistratuum suorum,
rege auctoritatem præstante, habita super hoc deliberatione & tractatu,
recte fuerit definitum_; that is, the king is not sole legislator;
directly contrary to the sense of the very text he quotes. And it must be
allowed, to the honour of the common lawyers, that, with the exception
of a few venal time-serving individuals, they have, for a succession of
ages, proved themselves true friends to a rational civil liberty in the
subject, and to reasonable power and prerogative in the king[373].
To come to the jurisdiction of this court. Its proper business, as
appears from its name, is to take cognizance of all _common pleas_, that
is, all pleas that are not pleas of the crown, or at the suit of the
king. With these it cannot meddle; for all actions at the suit of the
king for criminal matters, belong to the King’s Bench, as those for his
revenue do properly to the Exchequer. But it hath jurisdiction, and that
universally, throughout England, in all civil causes, whether _real_,
_personal_, or _mixt_; the distinction of which it will not be amiss just
to point out.
Real _actions_ are those that are brought to recover land itself, where
the claimant has a right to an estate in it for life at least; and these,
until within these two hundred and fifty years, were the only ones used
for that purpose; but, since that time, they are gone almost entirely out
of use, on account of their nicety, their delays, their being conclusive;
and their place is supplied by mixed actions, which are easier, shorter,
and may be tried again. However, if any one was inclined, at this day, to
bring such an action, this is the court to bring it in; and therefore all
_common recoveries_, which antiently were, and still carry the form of,
real actions, are suffered in this court.
Personal _actions_ are those that are brought for the recovery either of
some duty, or demand in particular, or of damages for the non-performance
of some promise or contract, entered into, or lastly such as are brought
by a man to recover a compensation in damages for some injury sustained
in his person—or property. To give but one or two instances of these
last: If my ground is trespassed on, if my person is assaulted, my
reputation injured, the remedy is by the personal actions of _trespass_,
_assault & battery_, or _slander_. All actions for breach of covenants
are likewise personal actions; for, by the common law, damages only
are recoverable thereon, and the party is not obliged to perform the
covenant. Wherefore, if a man chuses rather to have his covenant
performed than receive a satisfaction in damages, he must go into a Court
of Equity, which will oblige a man to perform in specie, what he hath
specifically engaged to perform, if the performance is possible. This
court, therefore, being the proper court for personal actions, fines of
lands are levied here; for they are fictitious actions, founded on a
fictitious breach of covenant.
Mixed actions are designed for the recovery of a specific thing, and
also damages, and consequently partake of the nature both of real and
personal actions. For instance: If a tenant for life, or years, or at
will, commits waste, he forfeits to the owner of the inheritance the
place wherein the waste was done, and treble damages. The _action of
waste_, therefore being brought to recover both, is a mixed action.
The action of _ejectment_ also, which was originally proper to recover
damages for being put out of a lease for years, but is now the common
remedy, substituted in the lieu of real actions, is now of the same
nature; because both the land itself, and damages for the wrong are
recovered[374].
These three kinds of actions are properly the business of this court,
though, as to the two last, actions personal and mixed, the courts
of King’s Bench and Exchequer have, by fictions, gained a concurrent
jurisdiction with this court; the King’s Bench, by supposing the
defendant to be in the custody of the marshal thereof; and the Exchequer,
by supposing the plaintiff to be a debtor to the king.
The proper way of founding the jurisdiction of this writ, is by a writ
out of Chancery, returnable hither, either to begin a cause originally
here, or to remove one depending in an inferior court not of record; but,
in some cases, they proceed without any writ from Chancery, as in causes
brought by or against an officer of the court, and likewise, in granting
prohibitions to other courts that attempt to enlarge their jurisdictions.
Before I conclude, I must observe, that this court, though one of the
four high courts derived out of the _curia regis_, is not, however,
supreme, but subordinate to the King’s Bench. For judgments given therein
are reversible in the King’s Bench, by a writ of error issuing from the
Chancery, suggesting the king’s being informed that manifest error has
interveened, and commanding the record to be transmitted into the King’s
Bench; the judges belonging to which, upon the face of it, and nothing
else, are to affirm or reverse the judgment; for the error must be
manifest; and no error in point of fact, but error only in point of law,
can be averred against a record.
The lowest in rank of the four great courts, though from antient times
one of the greatest importance, is the court of _Exchequer_, whose
business was to collect in the several debts, fines, amerciaments,
or other duties or properties belonging or accruing to the king, and
likewise, to issue money by his orders; and this court being originally
solely erected for the king’s profit, is the reason, I presume, why
it is held in rank the lowest; it being more honourable to the crown
to give precedence of rank to those courts that were intended for the
administration of justice to the subject, above that which was intended
merely for the king’s temporal advantage. Besides, this court was, in its
original, distinct from the _curia regis_, the treasurer being the judge
in this, as the _justiciarius Angliæ_ was in the other; and therefore,
it was regular, that the Chancery, and Common Pleas, as having been once
part of the supreme court, should take place before this. Its having
been originally a distinct court, accounts for its independency on the
King’s Bench; for, no writ of error lies from it to the King’s Bench,
as doth from the Common Pleas, but its errors are rectified in another
manner[375].
This court, as well as the Chancery, hath, properly speaking, two courts:
one, ordinary, proceeding according to the strict rules of the common
law; the other, by equity; for, as it is the king’s duty to render
justice with mercy, so, in this court, the rights of the king are not
always exacted with rigour; but, on circumstances of reason and equity,
may be mitigated or discharged. The court of common law in this court
had antiently much more business than of late. Originally, whilst the
royal demesnes were unalienated, they had the setting of them for years;
but, afterwards, people chusing rather the authority of the great seal,
took them in Chancery. That court, as I mentioned when treating of it,
had likewise gained the returns of inquisitions of office, and had
also gained by act of parliament, the composition of forfeitures, for
the king’s tenants _in capite_ aliening their lands without license;
which, otherwise, would have belonged to this court. The erection of the
_Court of Wards_, also, by Henry the Eighth, took off that branch of its
jurisdiction; and the abolishing of the military tenures by Charles the
Second took away the business of calling in their fruits. The erecting
the office of _the Treasury_, as distinct, for the issuing of money, had
the same effect; but, above all, the erecting new jurisdictions, and
appointing new judges to try causes relative to the new taxes, as the
Commissioners of the Customs and Excise, and Commissioners of Appeal,
diminished the peculiar business of the court[376].