Atrocious Judges : Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression

Atrocious Judges : Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression
John Campbell

Atrocious Judges : Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression

ADVERTISEMENT

The text of the following Book of Judges has been derived from Lord Campbell’s Lives of the Chief Justices, and Lives of the Chancellors, with only a few verbal alterations for the sake of connection, some transpositions, the omission of some details of less interest to the American reader, and the insertion of a few paragraphs, enclosed in brackets, thus [ ].

Most biographers have been arrant flatterers. Lord Campbell is a distinguished member of that modern school, which holds that history is of no dignity nor use, except so far as it is true; and that the truth is to be told at all hazards and without reserve. Hitherto social and political position, obtained no matter by what means, has in general secured not only present but future reputation. It can hardly fail to be a serious check upon those who struggle for distinction to understand, that, however they may cheat or dazzle their contemporaries, they must expect to encounter from posterity a Rhadamantine judgment.

The object of the present work, prepared as it is in the interest of justice and freedom, and designed to hold up a mirror to magistrates now sitting on the American bench, in which “to show virtue her own feature, scorn her own image, and the very life and body of the time his form and pressure,” will, I hope, induce Lord Campbell to pardon the liberty I have ventured to take with his writings.

R. H.

Boston, November 20, 1855.

INTRODUCTION

Hume observes, in his History of England, that “among a people who lived in so simple a manner as the Anglo-Saxons, the judicial power is always of greater importance than the legislative.” The same comparison will hold good even in communities far more advanced in civilization than the Anglo-Saxons. It has indeed been well said that the great end of the complicated machinery of the existing British government is to get twelve men into a jury box. It might even be laid down as a general principle that the freedom or servitude of a people will mainly depend upon the sort of administration of justice which they have – especially of criminal justice.

The whole course of British history will serve to justify this observation, since it has not been so much by the aid of mercenary soldiers, as by the assistance of lawyers and judges, that tyranny has sought to introduce itself into that country. It is in the history of the English courts, still more than in the history of the English Parliament, that we are to trace the origin and growth of those popular rights and of that idea of public liberty, propagated from England to America, and upon which our Anglo-American free institutions are mainly founded.

The origin of British liberty, by an ancient, constant, and affectionate tradition, has uniformly been traced back to the times of the Anglo-Saxons. It was, however, by judicial, far more than by legislative institutions, that among those progenitors of ours private rights and public liberty were guarantied.

The smallest political subdivision among the Anglo-Saxons was the tything, (teothing,) consisting of ten families, the members of which were responsible for the good conduct of each other. The head man of this community, denominated tything-elder, (teothing ealdor,) seems to have acted as a kind of arbitrator in settling disputes about matters of a trifling nature; but whether he had actually a court for administering justice does not appear. Next in order came the hundred, (hundrede,) or, as it was called in the north of England, the wapentake, in its original constitution consisting of ten tythings, or a hundred families, associated together by a similar bond of mutual responsibility. Its head man was called the hundred’s elder, (hundredes ealdor,) or simply reeve, (gerefa,) that being the generic term for the officer of any district, or indeed for any officer.[1 - The German graf, for which the Latin comes (in English, count or earl) was employed as an equivalent, is a form of the same word. The law Latin for sheriff is vice-comes, a name given, it would appear, after the title of earl or count had become hereditary, to the officer who still continued to be elected by the people for the official functions originally discharged by the earl.] This gerefa, along with the bishop of the diocese, acted as the presiding officer of the hundred court, which met once at least every month, and had both civil and criminal jurisdiction, and cognizance also of ecclesiastical causes, which were entitled to precedence over every other business.

There was besides a shire or county court (shir-gemot) held twice every year, or oftener if occasion required, convened by the sheriff, (shir-reeve,) or, as he was sometimes also called, the alderman, (ealdor-man,) who presided over it, assisted by the bishop. Here causes were decided and business was transacted which affected the inhabitants of several of the hundreds.

The highest court of all was that of the king, the Wittenagemot, (witan-gemot,) in which he himself was present, attended by his councillors, or witan. This body, which united the functions of a legislative, judicial, and executive council, had no fixed times or place of meeting, but was held as occasion required, wherever the king happened to be. As to its judicial functions, it was in general only a court of extraordinary resort; it being a rule of the Anglo-Saxon law that none should apply for justice to the king unless he had first sought it in vain in the local courts.[2 - See Forsyth’s History of Trial by Jury, ch. iv. sec. 4.]

Hence the hundred and county courts occupied by far the most conspicuous position in the Anglo-Saxon judicial polity. The Anglo-Saxon shires, it may be observed, having been originally principalities, nearly, if not altogether, independent, but gradually united into one kingdom, were rather tantamount to our Anglo-American states than to our counties, of which the Saxon hundreds may be taken as the equivalent; the tythings corresponding to our Anglo-American townships; while (to carry out the parallel) the central authority of the king and the wittenagemot may be considered as represented by our federal system generally.

But though the reeve and the bishop presided in the local Anglo-Saxon courts, it was rather in the character of moderators than of judges; that latter function being performed by the freeholders of the county, all of whom, not less than the bishop and the reeve, had the right and were bound to give their attendance at these courts.

“Suits,” says Hume,[3 - History of England, Appendix, I.] “were determined in a summary manner, without much pleading, formality, or delay, by a majority of voices;[4 - The decision of this majority would seem to have been principally determined, if the party complained against denied the charge, by the method of compurgation, in which the oath of the defendant was sustained by that of a certain number of his neighbors, who thereby certified their confidence in him; or, if he could not produce compurgators, and dared to venture upon it, by a superstitious appeal to the ordeal.] and the bishop and alderman had no further authority than to keep order among the freeholders, and interpose with their opinion.”

These county courts, though traces of them are to be found in all the old Teutonic states of Europe, became ultimately peculiar to England. None of the feudal governments of continental Europe had any thing like them; and Hume, with his usual sagacity, has remarked that perhaps this institution had greater effects on the political system of England than has yet been distinctly pointed out. By means of this institution, all the freeholders were obliged to take a share in the conduct of affairs. Drawn from that individual and independent state, so distinctive of the feudal system, and so hostile to social order and the authority of law, they were made members of a political combination, and were taught in the most effectual manner the duty and advantages of civic obedience by being themselves admitted to a share of civic authority. Perhaps, indeed, in this Anglo-Saxon institution of hundred and county courts we are to seek the origin of that system of local administration and self-government still more fully carried out in America than in England, by which English and Anglo-American institutions are so strongly distinguished from those of Europe, and in the judicious combination of which with a central administration, for matters of general concern, British and American liberty, as a practical matter, mainly consists.

One of the first procedures of the Norman Conqueror, by way of fixing his yoke upon the shoulders of the English people, was gradually to break down and belittle this local administration of justice. He did not venture, indeed, to abolish institutions so venerable and so popular, but he artfully effected his purpose by other means. He began by separating the civil and ecclesiastical jurisdictions. The bishops, according to a fashion recently introduced on the continent, were authorized to hold special courts of their own. These courts were at first limited to cases in which ecclesiastical questions were involved, or to which clergymen were parties but by the progress of an artful system of usurpations, familiar to the courts of all ages and nations, they gradually extended their authority to many purely lay matters, under pretence that there was something about them of an ecclesiastical character. It was under this pretence that the English ecclesiastical courts assumed jurisdiction of the important matters of marriage and divorce, of wills, and of the distribution of the personal property of intestates – a jurisdiction which they still retain in England, and which, though we never had any ecclesiastical courts in the United States of America, has left deep traces upon our law and its administration as to these subjects.

In establishing these separate ecclesiastical courts, the Conqueror made a serious departure from his leading idea of centralization; and he thereby greatly contributed to build up a distinct theocratic power, which afterwards, while intrenching on the rights of the laity, intrenched also very seriously on the authority of his successors on the throne. But this was a danger which either he did not foresee – since he possessed, though his next successor relinquished it, the sole power of appointing bishops – or which he overlooked in his anxiety to diminish the importance of the old Saxon tribunals.

Both the civil and criminal authority of the local courts was greatly curtailed. Their jurisdiction in criminal cases was restricted to small matters, and even as to questions of property was limited to cases in which the amount in dispute did not exceed forty shillings; though, considering the superior weight of the shilling at that time, the greater comparative value in those ages of the precious metals, and the poverty of the country, this was still a considerable sum.

The general plan for the administration of justice of the Anglo-Norman government was a court baron in each of the baronies into which the kingdom was now parcelled out, to decide such controversies as arose between the several vassals or subjects of the same barony. Hundred courts and county courts still continued from the Saxon times, though with restricted authority, to judge between the subjects of different baronies; and a court composed of the king’s great officers to give sentence among the barons themselves. Of this court, which ultimately became known as Curia Regis, (King’s Court,) and sometimes as Aula Regis, (King’s Hall,) because it was held in the hall of the king’s palace, and of its instrumentality in extending the royal authority, Hume[5 - History of England, Appendix, II.] gives the following account: “The king himself often sat in his court, which always attended his person: he there heard causes and pronounced judgment; and though he was assisted by the advice of the other members, it is not to be imagined that a decision could easily be obtained contrary to his inclination or opinion.[6 - We may observe that even at present, whether in England or America, though the depositaries of the legislative and executive authority (which in those times the king was) sit no longer openly and personally on the bench, it still remains no easy matter, in cases in which they take an interest, to obtain in either country a judicial decision contrary to the inclination of these two authorities.] In the king’s absence, the chief justiciary presided, who was the first magistrate of the state, and a kind of viceroy, on whom depended all the civil affairs of the kingdom.[7 - In the king’s absence – and the Anglo-Norman kings were often absent on visits to their continental dominions – this chief justiciary acted in all respects as the king’s substitute, no less in military than in civil affairs, those who held it being selected quite as much for warlike prowess as for judicial skill. Such was the case with Ranulphus de Granville, chief justiciary of Henry II., A. D. 1180-1191, whose treatise in Latin, On the Laws and Customs of the Kingdom of England, is the oldest book of the common law. He went with Richard I. on the third crusade, and was killed at the siege of Acre.] The other chief officers of the crown, the constable, marshal, seneschal, or steward, chamberlain, treasurer, and chancellor, were members, together with such feudal barons as thought proper to attend, and the barons of the exchequer, who at first were also feudal barons appointed by the king. This court, which was sometimes called the King’s Court, sometimes the Court of Exchequer, judged in all causes, civil and criminal, and comprehended the whole business which is now shared out among four courts – the Chancery, the King’s Bench, the Common Pleas, and the Exchequer.

“Such an accumulation of powers was itself a great source of authority, and rendered the jurisdiction of the court formidable to all the subjects; but the turn which judicial trials took soon after the conquest served still more to increase its authority, and to augment the royal prerogatives. William, among the other violent changes which he attempted and effected, had introduced the Norman law into England, had ordered all the pleadings to be in that tongue, and had interwoven with the English jurisprudence all the maxims and principles which the Normans, more advanced in cultivation, and naturally litigious, were accustomed to observe in the administration of justice.

“Law now became a science,[8 - It might rather be said, a scholastic art, in which forms and words became matters of much greater consideration than substantial justice, and in which technical rules were substituted for the exercise of the reasoning faculties.] which at first fell entirely into the hands of the Normans, and even after it was communicated to the English, required so much study and application that the laity of those ignorant ages were incapable of attaining it, and it was a mystery almost solely confined to the clergy, and chiefly to the monks.

“The great officers of the crown, and the feudal barons who were military men, found themselves unfit to penetrate into these obscurities; and though they were entitled to a seat in the supreme judicature, the business of the court was wholly managed by the chief justiciary and the law barons, who were men appointed by the king, and entirely at his disposal. This natural course of things was forwarded by the multiplicity of business which flowed into that court, and which daily augmented by the appeals from all the subordinate judicatures of the kingdom. For the great power of the Conqueror established at first in England an authority which the monarchs in France were not able to attain till the reign of St. Louis, who lived near two centuries after: he empowered his court to receive appeals both from the courts of barony and the county courts, and by that means brought the administration of justice ultimately into the hands of the sovereign.[9 - Not merely were these appeals introduced, but process was invented by which suits commenced in these local courts might, before they were finished, be removed into the king’s courts, by the writ of pone and others.]

“And lest the expense or trouble of the journey to court should discourage suitors and make them acquiesce in the decision of the inferior judicatures, itinerant judges were afterwards established, who made their circuits through the kingdom and tried all cases that were brought before them. By this expedient the courts of barony were kept in awe, and if they still preserved some influence it was only from the apprehensions which the vassals might entertain of disobliging their superior by appealing from his jurisdiction. But the county courts were much discredited and as the freeholders were found ignorant of the intricate principles and forms of the new law, the lawyers gradually brought all business before the king’s judges, and abandoned that convenient, simple, and popular judicature.”

The innovations of the Conqueror and his successors having reduced the old local Anglo-Saxon tribunals to comparative insignificance, the whole judicial authority, except that which had been seized upon by the ecclesiastical courts, remained for a hundred and fifty years after the conquest concentrated in the Aula Regis. But as Norman and Saxon became thoroughly intermixed, with the first faint dawn of modern English liberty the judicial power thus thoroughly centralized became again subdivided and distributed, though in a manner very different from that of the Saxon times.

The Anglo-Norman kings of England were perpetually on the move: the only way of disposing of the products of the landed estates which scattered over England afforded the main part of the royal revenue, was to go thither with the royal household and consume it on the spot. Wherever the king went, the Aula Regis followed, occasioning thereby great inconvenience and delay to suitors. This was complained of as a grievance, and the barons who extorted Magna Charta from their reluctant sovereign insisted, among other things, that Common Pleas, that is, civil suits between man and man, should be held in some certain place. It was in this provision of Magna Charta that originated the English Court of Common Pleas, which became fixed at Westminster Hall, the place of session of the Aula Regis when the king was in the vicinity of London. This Court of Common Pleas, or Common Bench as it was sometimes called, seems to have been at first but a mere committee of the Aula Regis; and the disintegration of that tribunal, thus begun, was, on the accession of Edward I. in 1272, completed by its resolution into three or rather five distinct tribunals.

Of these new courts, that which more immediately represented the Aula Regis was the Court of King’s Bench, which still continued to follow the king and to be held in his presence. In the language of its process, such is still supposed to be the case; but like the other English courts, it has long since been fixed at Westminster Hall, and admits nobody to participate in its proceedings save its own members – a chief justice, who, though of inferior position in point of precedence, may be considered as in some respects the successor of the chief justiciary, which office was now abolished – and three or four puisne judges, the number having varied at different times.

The Court of Common Pleas was now also organized like the King’s Bench, with a chief justice and three or four puisne judges. As this court had exclusive jurisdiction of civil suits, (except those relating to marriage, divorce, wills, tithes, and the distribution of the personal property of intestates, which had been usurped by the ecclesiastical courts,) Pleas of the Crown, that is, the criminal jurisprudence of the realm, (except prosecutions for heresy, of which the ecclesiastical courts claimed jurisdiction,) and also the hardly less important duty of superintending the other tribunals, even the Common Pleas itself, and keeping them within their due limits, was assigned to the King’s Bench.

To a third court, that of Exchequer, of which, besides a chief baron and three or four puisne barons, the treasurer and the chancellor of the exchequer originally formed a part, were assigned all cases touching the king’s revenue, and especially the collection of debts due to him, in which light were regarded not only all fines, forfeitures, and feudal dues, but the imposts and aids occasionally granted by Parliament.

There was also a Court of Chivalry or “Honor Court,” presided over by the constable and marshal, and having jurisdiction of all questions touching rank and precedency; and another, over which the steward of the household presided, to regulate the king’s domestic servants; but these courts, which have long since vanished, could never be considered as having stood on a par with the three others, the judges of which esteemed themselves the grand depositaries of the knowledge of the common or unwritten law of England; that is, of such customs and forms as had obtained the force of law previous to the existence of the regular series of statutes beginning with Magna Charta. Indeed, these judges of England, as they were called, were in the habit of meeting together in the Exchequer Chamber, for the purpose of hearing arguments on law points of importance or difficulty, adjourned thither for their consideration, and which they decided by a majority of their whole number present, thus presenting down to the recent abolition, or rather modification, of the Court of Exchequer Chamber, a shadow, as it were, of the ancient Aula Regis.

Already, previous to this fracture of the Aula Regis into the various courts above named, the legal profession, so far as practice in the lay courts was concerned, had begun to separate itself from the clerical; and places for the education and residence of a class of laymen who began to devote themselves to the study of the common law were established in the vicinity of Westminster Hall. Of these, Lincoln’s Inn, founded at the commencement of the reign of Edward II., (about A. D. 1307,) under the patronage of William Earl of Lincoln, who gave up his own hostel or town residence for that purpose, was the earliest, and has always remained the principal. On this model were established before long the Inner and Middle Temple, (so called because a residence of the Knights Templars, forfeited by the dissolution of that order, had been devoted to this purpose,) Gray’s Inn, Serjeant’s Inn, and the Inns of Chancery.

Such was the origin of the profession of law as it still exists in England and America; of that body of lawyers whence all our judges are taken, arrogating to itself, after the example of the churchmen, of which it originally consisted, a certain mystical enlightenment and superiority, scouting the idea that the laity, as the lawyers too affect to distinguish all persons not of their cloth, – in plain English, the people, – should presume to express or to entertain any independent opinion upon matters of law, or that any body not a professional lawyer can possibly be qualified for the comprehension, and much less for the administration, of justice.

In the Anglo-Saxon courts the parties had appeared personally, and pleadings had been oral. The Anglo-Norman practice gave rise to appearance by attorney in all civil cases, and to that system of special written pleadings, prepared by counsel learned in the law, of which the operation was to give the victory to ingenuity and learning rather than to right, and which, after undergoing many modifications, has at length been abolished in many of our Anglo-American states, as an impediment to justice and an intolerable nuisance. Even in conservative England itself, though the system of special pleadings, greatly modified by modern changes, still exists, the recent return, by the examination of the parties, to the old popular system of oral pleading has been attended by the happiest results.

The preparation of these written pleadings, by which we are here to understand not arguments, but allegations of facts relied upon by the respective parties, was engrossed by the serjeants at law, whose distinguishing badge was a coif or velvet cap – wigs being a comparatively modern invention. To obtain admittance into this order, by which the entire practice of the Court of Common Pleas was engrossed, (that is, originally, the entire practice in civil suits,) and from which the judges were exclusively selected, sixteen years’ study was required. The degree of barrister, or, as it was called, of apprentice, might be obtained by seven years’ study; and it was to these two classes of serjeants and apprentices that the practice in the courts of Westminster Hall was originally confined.[10 - Originally, and down to a comparatively recent period, the Inns of Court were real schools, “readers” or lecturers being appointed for the instruction of the students, who were only admitted to practice after a sharp examination. Now, the examination is a mere form, and the student seeks instruction where he pleases. Even the nominal term of study has been reduced to five, and in some cases to three years.] But subsequently there sprang up a third inferior and still more numerous class, called attorneys, a sort of middle-men between the client and his counsel, not permitted to speak in court, for which purpose they must retain a serjeant or barrister, but upon whom was shifted off all the drudgery and responsibility of preparing the case, in which, however, no step of consequence could be taken without the advice of counsel learned in the law, i. e., a serjeant or barrister.[11 - This distinction between attorneys and barristers, though still in full vogue in England and in several of the British colonies, is not recognized in the United States, where, indeed, it never had but a feeble and transient existence.]

As the law and its practice thus became more and more a mystery, only to be learned by frequenting the courts of Westminster Hall, and by the study of the obscure and ill-prepared reports of their proceedings, which began now to be compiled by official reporters, and published under the name of Year Books, the old local Anglo-Saxon courts fell still more into contempt. Already in the reign of Henry III. the freeholders had been released from their obligation of attendance upon them, and another blow was given to these ancient tribunals when, in the reign of Edward II., the appointment of sheriffs, hitherto chosen by the freeholders, was assumed by the crown; and still another when, in the following reign, the election of conservators of the peace was also taken from the people and assumed by the king. To the magistrates thus appointed by the king the new name of Justices of the Peace was soon afterwards given, and the criminal jurisdiction conferred upon them, whether acting singly as examining and committing magistrates, or met together at the courts of Quarter Sessions, gradually superseded the small remains of criminal authority hitherto left to the old popular tribunals.

Two circumstances, however, combined to transfuse a certain portion of the spirit of these old tribunals into the newly established courts, thus standing in the way of the entire monopoly of the administration of justice at which the lawyers aimed, and securing to the body of the people a certain participation in the most important function of the government, to wit, the administration of justice; which participation, derived from the old Anglo-Saxon customs, and transmitted to our times, constitutes to-day the main pillar of both British and American liberty.

Contemporaneously with the new organization above described of the courts of common law, the British Parliament had taken upon itself that organization which it still retains – an upper house, (House of Lords,) composed of great nobles and bishops,[12 - Down to the period of the reformation the abbots of the greater monasteries sat also in this house.] successor of the Anglo-Saxon Wittenagemote and of the Anglo-Norman Great Council, and a lower house, (House of Commons,) in which met together the elected representatives of the smaller landed proprietors, holding by knight’s service immediately of the crown, (knights of the shire,) together with the newly-admitted representatives of the cities and chief towns, (burgesses.) The Parliament thus constituted claimed and exercised, probably as successor of the Wittenagemote, appellate jurisdiction from the decisions of all the courts of law. In the time of Edward III. it was even a common practice for the judges, when any question of difficulty arose in their several courts, to take the advice of Parliament on it before giving judgment. Thus in a case mentioned in the Year Book, 40 Ed. III., Thorpe, chief justice of the King’s Bench, went with another judge to the House of Lords, to inquire the meaning and effect of a law they had just passed for amending the system of pleadings;[13 - If the Lords, says Campbell, were still liable to be so interrogated, they would not unfrequently be puzzled; and the revival of the practice might be a check on hasty legislation. It certainly would be a check upon the practice of courts, now so frequent, of putting an interpretation on statutes totally different from the intentions of those who frame them.] and many other instances occur of the same sort.

This appellate power vesting in Parliament from the decisions of all the courts was the first of the circumstances above alluded to as serving to prevent the monopoly of the administration of justice by the lawyers. But this check with the process of time has almost entirely disappeared. In England this appellate power in Parliament has long since fallen into the hands exclusively of the House of Lords, who themselves in giving judgment are ordinarily only the mouthpiece of the judges called in to give their advice. In what are now the United States of America the same appellate jurisdiction was originally exercised by the colonial assemblies. With us, however, it has entirely vanished under the influence of the idea of a total separation of the legislative, executive, and judicial functions.

The other, and by far the most important check upon the monopoly of the lawyers, was the introduction and gradual perfecting of the trial by jury, by which the more ancient methods – the compurgation and ordeal of the Anglo-Saxons, and the trial by battle, the favorite method of the Anglo-Normans – were entirely superseded. The history of the trial by jury is exceedingly obscure. The petit jury may, however, be traced back to the old Anglo-Saxon method of trial by compurgation, the jury in its origin being only a body of witnesses drawn from the vicinage, who founded their verdict not upon the evidence of witnesses given before them, but upon their own personal knowledge of the matters in dispute.[14 - Hence the necessity of venue, that is, the allegation in all declarations and indictments of some place in some county where the matter complained of happened, in order to a trial by a jury of the vicinage. In personal actions this necessity of trying a case in the county where the transaction occurred was got rid of by first setting out the true place of the transaction, and then alleging under a videlicet a venue in the county where the action was brought, which latter allegation the courts would not allow to be disputed. But in criminal proceedings and real actions the necessity of a trial in the county where the offence was committed or the land lies still continues.The origin of the jury in a body of neighbors who decided from their own knowledge will seem less remarkable when we recollect that by the customs of the Anglo-Saxons all sales of land, contracts, &c., between individuals took place in public at the hundred and county courts, the memory of the freeholders present thus serving in place of written records. See Palgrave’s English Commonwealth, vol. i. p. 213.]

The grand jury seems to have originated in the old Anglo-Saxon custom imbodied in one of the laws of Ethelred, by which was imposed upon the twelve senior thanes of every hundred the duty of discovering and presenting the perpetrators of all crimes within their district – a custom revived by the constitution of Clarendon, enacted A. D. 1164, by which twelve lawful men of the neighborhood were to be sworn by the sheriff, on the requisition of the bishop, to investigate all cases of suspected criminality as to which no individual dared to make an accusation. At first this accusing jury seems also to have served the purpose of a jury of trial. In what way the grand jury came to be separated from the petit jury, and how the former came to be increased to a number not exceeding twenty-three, of whom at least twelve must concur in order to find an indictment, is a point which still remains for the investigation of legal antiquaries.[15 - See Forsyth’s Trial by Jury, ch. x. sec. 1.]

The trial by jury, though of the progress of its development little is known, appears to have taken on substantially its existing form, both in civil and criminal cases, nearly contemporaneously with the new organization of the English courts, with the rise of the legal profession as distinct from that of the clergy, and with the commencement of the series of English statutes and law reports – all of which, as well as the existing constitution of the British House of Commons, may be considered as dating from the accession of Edward I., A. D. 1272, or somewhat less than six hundred years ago. In certain cases of great importance this trial took place and still takes place in bank, as it is called; that is, in Westminster Hall, before all the judges of the court in which the suit is pending;[16 - Down to the time of Elizabeth all cases occurring in Middlesex county, in which Westminster lies, were thus tried in bank.] but in general, the trial is had in the county in which (if a criminal case) the offence had been committed, or (if a civil case) in which the venue is laid, before certain commissioners sent into the counties for that purpose, and who, under the new system, were the successors of the justices in eyre, or itinerant justices, who had formed a part of the ancient Aula Regis. Originally, separate commissions appear to have issued for criminal and civil cases – for the former a commission of oyer and terminer, (to hear and determine,) and of general jail delivery; and for the latter a commission of assize, so called from the name of a peculiar kind of jury trial introduced as a substitute for trial by battle, in real actions, that is, pleas relating to land, villainage, and advowsons. In the times in which land, villains, and the right of presentation to parishes, constituted the chief wealth, these real actions constituted also the chief business of the Common Pleas, which then had exclusive jurisdiction of civil controversies; but to this commission of assize was annexed another, called a commission of nisi prius, authorizing the commissioners to try all questions of fact arising in any of the courts of Westminster. This latter commission was so called because the writ issued to the sheriff of the county in which the cause of action was alleged to have originated, to summon a jury to try the case, directed such jury to be summoned to appear at Westminster on a day named, unless before (in Latin, nisi prius) that day commissioners should come into the county to try the case there. Hence the term nisi prius employed by lawyers to designate a trial by jury before one or more judges, commissioned to hold such trials within certain circuits, but whose directions to the jury, and other points of law decided by them in the course of the trial, are liable afterwards to be reviewed by the whole bench.

Ultimately these commissions for both criminal and civil trials were given to the same persons, who also received a commission of the peace; and the whole territory of England being divided into six circuits, two of the judges, to whom other assessors were added, held assizes twice a year in each county,[17 - In London and Middlesex four sessions were held a year; in the four northern counties only one.] for the trial of issues found in Westminster Hall – a system closely imitated in all our American states.

But the distribution of authority above described as having been originally made to the different courts of Westminster Hall, into which the Aula Regis was divided, did not long remain undisturbed. Courts have at all times, and every where, exhibited a great disposition to extend their jurisdiction, of which we have already had an example in the authority over marriages, wills, and the personal property of intestates, assumed by the English ecclesiastical courts; and considering the double jurisdiction under which we citizens of the United States live, – that of the federal and that of the state courts, – and the disposition so strongly and perseveringly exhibited by the federal courts to enhance their authority, while the state courts continue to grow weaker and tamer, this is, to us, a subject of no little interest.

Besides the general love of extending their jurisdiction characteristic of all courts, and indeed only one of the manifestations of the universal passion for power, the English Courts of King’s Bench and Exchequer had a special motive for seeking to encroach on the exclusive civil jurisdiction of the Common Pleas. The salaries of the judges were very small – originally only sixty marks, equal to £40 sterling, or about $200 a year; nor was their amount materially increased down to quite recent times; but to this small salary were added fees paid by the parties to the cases tried before them; and the judges of the two other courts were very anxious to share with their brethren of the Common Pleas a part of the rich harvest which their monopoly of civil cases enabled them to reap from that source. Not only did the Court of King’s Bench start the idea that all suits in which damages were claimed for injuries to person or property, attended by violence or fraud, came properly within its jurisdiction as “savoring of criminality;” it found another reason for extending its jurisdiction, by suggesting that when a person was in the custody of its officers, he could not, with a due regard to “legal comity,” be sued on any personal claim in any other court, since that might result in his being taken out of the hands of their officer who already had him in custody, and was entitled to keep him. If any body had any claim against such a person, (such was the position plausibly set up,) it ought to be tried before the court in whose custody he already was. Having thus prepared the way, the Court of King’s Bench did not stop here; but by a fiction, introduced into the process with which the suit was commenced, that the defendant was already in the custody of their marshal for a fictitious trespass which he was not allowed to deny, jurisdiction was gradually assumed in all private suits except real actions.

The Court of Exchequer in like manner claimed exclusive jurisdiction of suits for debt brought by the king’s debtors, since by neglecting to pay them they might be prevented from paying their debts to the king; and under the pretence, which nobody was allowed to dispute, that all plaintiffs were the king’s debtors, that court, too, gave an extent to their jurisdiction similar to that of the King’s Bench. The exclusive jurisdiction of real actions, which alone remained to the Common Pleas, by the disappearance of villainage and the great increase of personal property, every day declined in importance; but even this was at last taken from the Common Pleas by the invention of Chief Justice Rolle, during the time of the Commonwealth, of the action of ejectment, which proceeds from beginning to end upon assumptions entirely fictitious, but which by its greater convenience entirely superseded real actions in England and in most of the Anglo-American States.

But while these three common law courts were thus exercising their ingenuity to intrench upon each other’s jurisdiction, their pertinacious adherence to powers and technicalities, and their unwillingness, except in matters where the alleged prerogative of the crown was concerned, to do any thing not sanctioned by precedent, led them to refuse justice or relief to private suitors in many crying cases. Such cases still continued to be brought by petition before the king, and by him were referred to his chancellor, who in the earlier times was commonly his confessor, and who since the abolition of the office of chief justiciary had become the first official of the realm. Undertaking in these cases to prevent a failure of justice by rising above the narrow technicalities of the common law, and guided by the general principles of equity and good conscience, the chancellor gradually assumed a most important jurisdiction, which in civil matters ultimately raised his court to a rank and importance above that of all the others. With the advance indeed of wealth and civilization, appeals to chancery became more and more frequent; and if the common law courts had not altered their policy, and adopted upon many points equitable ideas, it seems probable that so far as civil suits were concerned, those courts would long since have been superseded altogether.[18 - This history holds out to our state tribunals significant warnings as to the danger to which they are exposed on the part of the federal judges, especially those of the District Courts, who sitting singly on the bench, and with powers enormously and most dangerously extended by recent legislation, have from the unity and concentration of the one-man power, a great advantage over courts liable to be retarded in their action, if not reduced to imbecility by divisions among their members.] What indeed of and the practice in the Equity Court entirely into the hands of lawyers bred in Westminster Hall, by whom equity itself was made subservient to precedent, and the whole procedure involved in forms and technicalities even more dilatory and expensive than those of the common law courts.

The same disinclination on the part of these common law courts to go beyond the strict limit of technical routine, led, with the progress of commerce and navigation, to the erection, in the time of Edward III., of the Admiralty Court, mainly for the trial of injuries and offences committed on the high seas, of which, on technical grounds, the courts of common law declined to take jurisdiction. After the foundation of English colonies,[19 - The appeal from the English colonial courts to the king in council – the appeal cases being heard and decided by a committee of the privy councillors learned in the law – is another remnant of the old system, in which the constitution of the ancient Aula Regis has been very accurately preserved.] branches of this court, to which also was given an exchequer jurisdiction, were established in the colonies, and on that model have been formed our federal District Courts.