Courts of England

“ Henry transformed it from an occasional assembly of warlike nobles into a regular body of trained lawyers, and at the same time opened its doors to all except serfs. In the king's court any freeman could find a justice that was cheaper and speedier than that dispensed by the feudal lords. The higher courts of England have sprung from this institution. ”

“ In England, whose courts are the boast, and said to be the security of the rights of the nation, every man knows there are but twelve judges and three principal courts. These courts embrace, in their original or appellate jurisdiction, almost the whole circle of human concerns. ”

“ The administration of justice in courts of law is not left entirely to the justices and judges. Parties may not always have sufficient confidence in the ability, honesty, and impartiality of the justice by whom a suit is to be tried, to intrust their interests to his judgment. Therefore the constitutions of all the states guaranty to every person the right of trial by a jury. This right has been enjoyed in England many centuries. ”

“ Higley to be the almost uniform rule, among the people who make the common law of England the basis of their jurisprudence, to have a distinct tribunal for the establishment of wills, and the administration of the estates of men dying either with or without wills, which tribunals are variously called 'prerogative courts,' 'probate courts,' 'surrogate courts,' 'orphans' courts,' etc. ”

“ The history of English courts affords a remarkable illustration of the continuity that characterizes English institutions. It might perhaps be too much to say that all the courts now sitting in England may be traced back to a common origin, but at any rate the higher courts are all offshoots from the same original judicature. Leaving out of account the local courts, we find the higher jurisdiction after the Norman Conquest concentrated along with all other public functions in the king and council. ”

“ The last judicial act of an English king, if such it can be called, was that by which James I. settled the dispute between the court of chancery and courts of common law. Since the establishment of parliamentary government the courts take their law directly from the legislature, and the king is only connected with them indirectly as a member of the legislative body. The king’s name, however, is still used in this as in other departments of state action. The courts exercising jurisdiction in England are divided by certain features which may here be briefly indicated. ”

“ For many centuries after King John's time proceedings to be had in the King's Bench were invariably described as to be had 'before the Lord the King, wheresoever he may be in England'; and the Court of King's Bench always continued to be 'the Court before the King himself' even when the Sovereign had ceased to sit in it, and had permanently delegated his authority there, as in other Courts, to Justices. ”

“ It is not as you say, That they will not hear your king; for they have been ready to hear you, they have patiently waited your pleasure for three Courts together, to hear what you would say to the People's Charge against you, to which you have not vouchsafed to give any Answer at all. Sir, this tends to a further delay; truly, Sir, such delays as these, neither may the kingdom nor justice well bear; you have had three several days to have offered in this kind what you would have pleased. This Court is founded upon that Authority of the Commons of England in whom rests the supreme jurisdiction ”

“ In England it is usual, in the admiralty courts, in proceedings in rem, when it is made to appear that property of the government ought, in justice, to contribute to a general average, or to salvage, for the proper officer of the government to consent in court that it may take jurisdiction of the matter. ”

“ In England, all the higher courts where open to applicants for the writ, and it is hardly supposable that, under the new government, founded on more liberal ideas and principles, any court would be, intentionally, closed to them. ”

“ By the common law, justices of the peace had some criminal jurisdiction, but no jurisdiction whatever of suits between man and man. There were in England, however, courts baron, county courts, courts of conscience, and other petty courts, which were not courts of record, and whose proceedings varied in many respects from the course of the common law, but which were empowered to hear and determine, in a summary way, without a jury, personal actions in which the debt or damages demanded did not exceed 40 shillings. ”

“ And where a Court of Law or Equity is mentioned generally, the same shall be taken to mean, not only the Courts at Westminster, but also the several Courts of Law or Equity of the Great Sessions in Wales, and in the Counties Palatine of Chester, Lancaster, and Durham, or elsewhere in England. ”

“ He who refuses to observe just law and just judgment shall forfeit a fine to the party who is entitled thereto, the king 6 pounds, an earl 40s. and to all those who have a court in England.
No one shall appeal to the king until he fails to obtain justice in the hundred or county courts. ”

“ Upon the whole however, we may take it as a general rule, “that the decisions of courts of justice are the evidence of what is common law:” in the same manner as, in the civil law, what the emperor had once determined was to serve for a guide for the future [16] .
The decisions therefore of courts are held in the highest regard, and are not only preserved as authentic records in the treasuries of the several courts, but are handed out to public view in the numerous volumes of reports which furnish the lawyer’s library. ”

“ The high court, sitting in Edinburgh, has, in addition to its general jurisdiction, an exclusive jurisdiction for districts not within the jurisdiction of the circuits—the three Lothians, and Orkney and Shetland. The high court also takes up points of difficulty arising before the special courts, like the court for crown cases reserved in England. The court of justiciary has authority to try all crimes, unless when its jurisdiction has been excluded by special enactment of the legislature. ”

“ Speaking generally, those ministers who have paid most attention to finances and to internal reform have been less successful in upholding the honour of England abroad and in strengthening the army and navy.
The Law Courts.With regard to the law and the law courts, it is not such a very different England in which we live from what it was in the days of our great-grandfathers. The House of Lords is still the highest ‘Court of Appeal’ in Great Britain and Ireland; but to hear appeals, only those peers sit who are specially appointed to be judges for that purpose. ”

“ But, in order to understand the common law trial by jury, as it existed prior to Magna Carta, and as it was guaranteed by that instrument, it is perhaps indispensable to understand more fully the nature of the courts in which juries sat, and the extent of the powers exercised by juries in those courts. I therefore give in a note extended extracts, on these points, from Stuart on the Constitution of England, and from Blackstone's Commentaries. ”

“ Title to present to and possession of benefices.—As to the title to present to benefices, the courts Christian at one time had concurrent jurisdiction with the temporal courts. “Advowsons” were, however, looked upon as a species of “real” property in England, and therefore the king’s court early claimed exclusive jurisdiction in disputes where the title to present was involved. The Constitutions of Clarendon provided that these causes should be heard only in the king’s court (c. 1) . ”

“ They were to be common law Courts, proceeding according to the course of the common law, with power to issue writs agreeably to the principles and usages of that law. The common law remedies were, therefore, adopted by the Judiciary Act of 1789, c. 20. and it has been judicially determined that these remedies are to be not according to the varying practice of the State Courts, but according to the principles of the common law, as settled in England. ”

“ The constitution of the courts is based on the example of the English judiciary, and the rules of evidence and procedure are practically the same in both criminal and civil cases as in England. All serious cases of crime are tried before a judge and jury, with the same formalities and safeguards as in England, while minor offences are dealt with by stipendiary magistrates possessing a limited statutory jurisdiction. ”

“ In this country, there are special courts established in all the States, having jurisdiction over estates of deceased persons, called probate courts, orphans' courts, or surrogate courts, possessing, with respect to personal assets, nearly all the powers formerly exercised by the court of chancery and the ecclesiastical courts in England. ”

“ In primitive communities, courts perform legislative and executive as well as judicial functions. The scyresgemot, county court, or sheriff's turn of Anglo-Saxon England was not simply a judicial tribunal presided over by a bishop and sheriff, but was an assemblage of freemen for the discussion and transaction of local affairs generally. The Aula Regis, or Great Council of the Kingdom, in the early English history performed legislative as well as judicial duties ”

“ The precedents alleged to prove an original jurisdiction in the peers were so thinly scattered over the records of centuries, and so contrary to the received principle of our constitution that questions of fact are cognisable only by a jury, that their managers in the conferences seemed less to insist on the general right, than on a supposed inability of the courts of law to give adequate redress to the present plaintiff ”

“ There are in England no courts of a special character, such as exist in some foreign countries, for the determination of disputes between the governing classes themselves or with the governed classes, whether of a civil orSpecial tribunals. ”

“ Thus, no Court in the universe, which professed to be governed by principle, would, we presume, undertake to say, that the Courts of Great Britain, or of France, or of any other nation, had misunderstood their own statutes, and therefore erect itself into a tribunal which should correct such misunderstanding. We receive the construction given by the Courts of the nation as the true sense of the law, and feel ourselves no more at liberty to depart from that construction, than to depart from the words of the statute. ”

“ The trial of all common law causes in the first instance has always been before itinerant or circuit judges, one of whom must be a judge of one of the superior courts of Westminster, which judges are sent annually into every county of the kingdom for the trial of civil and criminal cases which are to be brought before a jury. ”

“ In Britain, the Judicial power, in the last resort, resides in the House of Lords, which is a branch of the Legislature; and this part of the British Government has been imitated in the State Constitutions in general. The Parliament of Great Britain, and the Legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective Courts. ”

“ When we congratulate ourselves, as we are so apt to do, on the length of time the system of trial by jury has been established in England, and the safeguard it affords against attempts to strain the law to the prejudice of the accused, we are often unmindful of the fact that the institution has not always proved a safeguard when the court, acting under the influence of the Crown, endeavoured to obtain a conviction. ”

“ Taking at random the daily Official Cause List for London there will be found on a given day sitting at the Law Courts in the Strand alone, twenty-one judges of the High Court, eight masters, seven Chancery registrars, twelve masters in Chancery, three official referees, two registrars in bankruptcy and one official presiding over "companies winding up"—exactly fifty-four men simultaneously performing judicial duty in one building. ”

“ In most of the United States the English law on this subject is adhered to as the rule of practice. But in others it has been changed either by usage and decisions of the courts founded thereon, or by positive statutes. ”

“ If relief on equitable grounds is to be obtained it is right that it should be sought by a formal suit upon adequate pleadings and should be granted only after a trial of issues according to the usual course of the trial of questions of fact. A court of first instance is the appropriate tribunal, and the only tribunal, equipped for such a trial. Appellate courts have neither the power nor the means to that end. ”

“ Anson, Law and Custom of the Constitution, II., Pt. 1., Chap. 10; Marriott, English Political Institutions, Chap. 14; and Macy, The English Constitution, Chap. 7. As is stated elsewhere (p. 169) , the first volume of Holdsworth's History of English Law contains an excellent history of the English courts. A useful handbook, though much in need of revision, is F. W. Maitland, Justice and Police (London, 1885) . Perhaps the best brief account of the development of the English judicial system is A. T. Carter, History of English Legal Institutions (4th ed., London, 1910) . ”

“ It sat, or certain members of it sat, under the presidency of the king or the justiciar, as the supreme court of justice of the realm. In this capacity it tried the suits of tenants-in-chief, and all appeals from the local courts. But Henry, not contented with this, adopted the custom of sending forth certain members of the Curia throughout the realm at intervals, to sit in the shire court, along with or in place of the sheriff, and to hear and judge all the cases of which the court had cognizance. From these itinerant commissioners (justices in eyre) descend the modern justices of assize. ”