Chapter 12: The English Courts of Justice
In England and Europe after the feudal law was introduced, the kingdom was governed and justice was administered in the same way as a baron in his jurisdiction.
- He was a steward who managed all affairs in the lord's county
- The grand justiciary managed all justice in the kingdom.
- He appointed sheriffs and other inferior officers.
- He was himself a great lord.
- He became as powerful as the king in every country except England.
- Edward I saw the danger and got it prevented.
- All laws were determined by the justiciary or the king’s court.
- It always attended the king.
- It always attended to delays and adjournments in civil suits
- It led to common causes:
- being separated from the king’s court,
- establishing a court of common pleas at Westminster.
- Criminal causes always have a speedier resolution.
- One would think that when a person’s life is at stake, the debate should be longer than in any other case.
- But resentment is roused in these cases.
- It precipitates to punish.
- It does not matter to the spectator how a trifling matter of cash be determined, but not for criminal cases.
- When common pleas were removed, the criminal and fiscal powers were connected.
- The power and authority of the great justiciary little diminished.
- Afterwards, Edward I divided the business of the justiciary into three different courts:
- The court of king’s bench
- The court of exchequer
- The court of common pleas
All civil suits were tried in the court of common pleas.
- The court of king’s bench tried all criminal suits.
- The appeal from the court of common pleas went to it.
- It was called king’s bench because the king then frequently sat on it.
- This cannot be done now since it is improper that the king should judge of breaches of the king’s peace.
The court of exchequer judged in all affairs between the king and his subjects.
- The debts due by either of them to the other, and whatever regarded the revenue.
- The court of chancery was originally not a court.
- The chancellor was just a keeper of briefs or writs according to which justice was done.
- We shall now consider what caused the keeping of these briefs.
Edward I abolished the power of the grand justiciary.
- He employed mean persons to be judges, generally clergymen.
- Their jurisdictions would be exercised very precariously.
- In criminal and civil cases, they interposed with hesitation.
- In criminal cases, they were mediators.
- In civil cases, they were arbitrators.
- They were unwilling to give justice in cases where they had no precedent from the court of justiciary.
- On this account, all the briefs by which the court of justiciary determined were kept.
- To keep these seems to have been originally the office of chancellor.
- If a person had a lawsuit, he went to the clerk of the court of chancery.
- The clerk examined the briefs.
- If he found one that comprehended your case, justice was done accordingly.
- But if one could not be found, you could have no justice.
- Thus, the chancellor was not a judge originally.
- In Scotland, the office of the English chancellor is lodged in the court of session.
- In England, a brief was sent from the chancellor to the sheriff by which he was obliged to appear before the king’s judges.
- Judges then, from the irregularity and inaccuracy of their proceedings, gave great jealousy to the king.
- On this account, many severe sentences went out against them.
- £10,000 was once levied from the judges on account of corruption.
- They were therefore tied down strictly to the chancery briefs.
- They were always bound by their records so that they could not be amended.
- They could not even correct wrongly-spelled words.
- This precision still remains in some cases where not taken away by the statutes of amendment.
- A mere orthographical error has had no effect in many cases .
- The judges were therefore tied down to the precise words of the brief, or if there was a statute, to the words of it.
- This was the origin and jurisdiction of the court of chancery.
During the improvement of the law of England, rivalships arose among the several courts.
- We shall show:
- how each of them began to extend its power and encroach on the privileges of another, and
- how the court of chancery increased its influence.
- The court of king’s bench judged criminal causes and every breach of the king’s peace.
- It was the first that assumed immediately, and previously to an appeal, to judge in civil causes, and
- to encroach on the jurisdiction of the court of common pleas, by what is called a writ of error, that is, they supposed the person to be guilty of a trespass.
- For example, when a man owed £10 and did not come to pay it, an order went out from the king’s bench to examine him.
- If he intended to conceal himself, they punished him.
- Presently, an action on contract can come immediately before the king’s bench.
- In this way, this court extended its power.
- Being supreme over all, none could encroach on it.
The court of exchequer brought in civil causes to be tried immediately by them in the following way:
- Suppose a man owed money to the king.
- It is the court's business to take care of it.
- The man cannot pay unless his debtors first pay him.
- The court took upon them to sue this other man by the quo minus that is, by what he is rendered less able to pay the king.
The king had many debts.
- The profits of the judges arose from sentence money, which depended on the court's business.
- They eagerly grasped at this extension of their power.
All the courts tried to encourage prosecutors to come before them through the speed of their decisions and accuracy of their proceedings.
- We now consider how the chancellor attained his equitable jurisdiction.
- The improvement of arts and commerce created many lawsuits unheard of before.
- People suffered a great deal by the imperfections of law.
- Edward III found that there were a great many injuries to which no brief nor court statute extended.
- Therefore, the parliament allowed that if a person applied to the clerk of chancery and found there was no brief that could give him any remedy, the clerk should look for some briefs of a similar nature.
- Out of them, he would compose a new brief by which the complainer might have redress.
- In this way, the chancery prescribed rules to the other courts.
- But they appointed the briefs and manner of proceeding.
- This was putting an end to the affair.
- For there was no occasion to go to any other court.
- The chancery got these affairs into its own hands.
- There could be no appeal brought from the courts of king’s bench or of common pleas to that of chancery, but they applied to it for what the common law could not redress.
- In this way, the chancellor obtained the power of judging in all cases of equity.
- and is applied to in the greater part of civil cases, the chief of which are, first, the specific performance of contracts.
- By the common law, if a person was bound by contract to deliver a piece of ground, and afterwards refused to do it, he was only obliged to pay damages, but not to perform it specifically.
- The chancery was now considered as a court of conscience.
- It enjoined the specific performance of it.
- Secondly, the chancery gave redress for all incests and frauds in trust when the common law could not.
- The leaving of lands to the church deprived the king of the emoluments arising from them, an act was passed against it.
- The clergy ordered that they should be left to certain persons who would dispose of them for the benefit of the church.
- If they did not perform it, then it was a fraud in trust.
- The chancellor allowed the bishop to see it done.
- Similarly, when persons in the state of affairs at that time were obliged to alienate their estates to persons that had no concern in them, the chancellor caused them to be restored.
- Wills, legacies, and things of this sort also fell under the equitable decision of the chancellor.
It will be proper when we are treating of courts to inquire into the origin of juries.
- In the beginning of the allodial government, the several courts had arrived at a very small degree of improvement.
- They did not have the experience to examine matters thoroughly.
- when any person was brought before them on an action depending on his oath, he was obliged to bring 12 compurgators to swear that the oath was just.
- There are remains of this at present in actions of debt, where, if the person can bring in a certain number of persons to swear that his oath is just, he gains the suit.
- This way of trying was one of the great causes of judicial combat.
- A nobleman who was injured by perjured fellows, would rather choose to combat it in the field and appeal to God's judgement than leave his cause to them.
- Henry II first instituted:
- that the sheriff and a certain number of persons who had opportunity to be best acquainted with the crime should have the whole affair laid before them, and
- that the person should be judged by their sentence.
- The law of England, always the friend of liberty, deserves praise in no instance more than in the careful provision of impartial juries.
- They who are chosen must be near the place where the crime was committed that they may have an opportunity of being acquainted with it.
- A great part of the jury may be laid aside by the panel.
- He can:
- lay aside 30 of them
- challenge them:
- per capita, that is, any single juryman, or
- any number of them, if he suspect the sheriff of partiality.
- There may be many small causes for suspicion of partiality.
- The court judges the relevancy of these.
- Nothing can be a greater security for life, liberty, and property than this institution.
- The judges are:
- men of integrity and
- quite independent
- They hold their offices for life but are tied down by the law.
- The jurymen are your neighbours who are to judge of a fact upon which your life depends.
- They can also be laid aside for several reasons.
The laws of England with regard to juries are only defective in one point, in which they differ from the laws of Scotland.
- In England the whole jury must be unanimous.
- This renders the office of a juryman a very disagreeable service.
A case may appear to you more clear than it does to me.
- It may really be different from what it appears to either of us.
- Yet we need to agree.
- As a result, one of us should swear contrary to our conscience.
In criminal causes, there is little danger.
- People are generally disposed to favour innocence and to preserve life.
But in civil cases, people are not so much troubled.
- They are not so much disposed to favour.
- Many of them are exceedingly doubtful.
People of fashion are not fond of meddling in a jury attended with such inconveniences.
A great man would not choose to be so often called and returned, and perhaps treated in such a manner as no gentleman would choose to be.In this case, the law providing for security has done too much.In Scotland, unanimity is not required.
- Therefore, only the meaner sort of people attend the judge.
Even if a person differs from the majority, he may stand by his opinion.
- The service is not so disagreeable.
In the actions which come before the court of chancery, no jury is required.
- He is not forced to comply.
- The people of the highest rank are willing to be jurors.
- The court of session in Scotland has taken them away in civil causes.
Besides the courts mentioned, there were others created by the king’s patent.
- Henry 8th created three.
- The court of high commission sat upon ecclesiastics.
- The court of star chamber takes in anything less than death.
- The court of wardship took care of the king’s interest in these emoluments.
- This last was taken away by Charles II.
- He accepted a sum for the whole.
- Nowadays, the king cannot create a court without parliament's consent.
- In no other country of Europe is the law so accurate as in England, because it has not been of so long standing.
- The parliament of Paris was only created around the time of Henry VIII of England.
- The British parliament consists of many people of great dignity.
- All new courts:
- disdain to follow the rules formerly established.
- are a great evil, because their power at first is not precisely determined.
- Therefore, their decisions must be loose and inaccurate.
We have considered:
- the origin of government
- Among a nation of savages
- Among a nation of shepherds
- the government of small clans with chieftains
- how aristocracies arose
- the fall of conquering or defensive republics
- the different forms of government that arose in Europe after the dissolution of arbitrary government.
Next: Chapter 13