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all the judges of England, to hear criminal cases reserved upon matter of law by a judge, at the assizes or the central criminal court. In that court in the exchequer chamber, the judges who are called to assist sit only as the advisers of the judge before whom the case was originally tried, and judgment is recorded by his authority. And herein this court is analogous to that into which causes are adjourned from the other courts.1
From all the branches of this court of exchequer chamber a writ of error lies to
X. The House of Peers, which is the supreme court of judicature both of law and also of equity in the kingdom, having at present no original jurisdiction over civil causes, but only upon appeals and writs of error, to rectify any injustice or mistake of the law. To this authority (Blackstone informs us) that august tribunal succeeded, of course, upon the dissolution of the aula regia. For as the barons of parliament were constituent members of that court, and the rest of its jurisdiction was dealt out to other tribunals, over which the great officers who accompanied those barons were respectively delegated to preside, it followed that the right of receiving appeals, and superintending all other jurisdictions, still remained in the residue of this noble assembly, from which every other great court was derived. And, indeed, the lords of parliament were (with the judges and officers of state, and other councillors of the crown) a part of the king's ordinary council, wherein the paramount jurisdiction of the crown was exercised, after the aula regis had ceased to exist, and this appellate jurisdiction remained with the peers. But the jurisdiction of the House of Lords on appeal from the court of chancery is less ancient. It did not begin to exist before the reign of Charles I., and was 1 Regina v. Frost, 9 C. and P. 162.
strenuously disputed, during that of his successor, by the House of Commons, who, however, acquiesced in the exercise of that equitable jurisdiction which the lords have ever since enjoyed.1 They are, therefore (continues our great commentator), in all causes the last resort, from whose judgment no further appeal is permitted; but every subordinate tribunal must conform to their determinations,—the law reposing an entire confidence in the honour and conscience of the noble persons who compose this important assembly, that (if possible) they will make themselves masters of those questions upon which they undertake to decide, and in all dubious cases refer themselves to the opinions of the judges, who are summoned by writ to advise them, since upon their decision all property must finally depend.2
With regard to the lords' jurisdiction in cases of writs of error and appeals from the courts of common law and equity in Ireland, and appeals from the court of sessions in Scotland, it arises from, and is defined by, the two acts of union.
XI. We must now proceed to an eleventh species of courts, of general jurisdiction and use, which are derived out of, and act as collateral auxiliaries to, the foregoing, namely, the courts of assize and nisi prius.
"These are composed of two or more commissioners, who are twice in every year sent, by the queen's special commission, all round England and Wales,3/cxcept London and Middlesex^ where courts of nisi pruts are holden
1 Hale, Jurisd. of the Lords; and Hargr. preface.
- Blackst. Cora, b iii. c. iv. p. 57.
3 By stat. 1 Wm. IV. c. lxx., the Wel9h local judicatures are abo. lished, and one English judge holds the assizes for North, and another for South Wales; and the two judges together hold the assizes at Chester.
in and after every term, before the chief or other judge of the several superior courts, to try by a jury of the respective counties the truth of such matters of fact as are then under dispute in the courts of Westminster Hall. These judges of assize came into use in the room of the ancient justices in ei/re,justiciarii in itinere, who were regularly established, if not first appointed, by the parliament of Northampton, A.d. 1176, 22 Henry II., with a delegated power from the king in his great court or aula regia, being looked upon as members thereof; and they afterwards made their circuit round the kingdom once in seven years, for the purpose of trying causes.1 They were afterwards directed by magna charta, c. xii., to be sent into every county once a year, to take, or receive, the verdict of the jurors or recognitors in certain actions then called recognitions or assizes, the most difficult of which they were directed to adjourn into the court of common pleas, to be there determined. The itinerant justices were sometimes mere justices of assize, or of dower, or of gaoldelivery, and the like; and they sometimes had a more general commission, to determine all manner of causes, being constituted justiciarii ad omnia placita :2 but the present justices of assize and nisi prius are more immediately derived from the statute of Westminster % 18 Ed. I. c. xxx., which directs them to be assigned out of the king's sworn justices, associating to themselves one or two discreet knights of each county. By stat. 27 Ed. I. c. iv. (explained by stat. 12 Ed. II. c. iii.) assizes and inquests were allowed to be taken before any one justice of the court in which the plea was brought, associating to him one knight, or other approved man, of the county. And
1 Seld. Jan. 1. ii. § 66. Spelman, Cod. 399. Co. Litt . 293. Maddox, Hist. Excheq. c. iii. § 12. 1 Bracton, 1. iii. tr. i. c. xi.
lastly by stat, 14 Ed. III. c. xvi., inquests of nisi prius may be taken before any justice of either bench (though the plea be not depending in his own court); or before the chief baron of the exchequer, if he be a man of law; or, otherwise, before the justices of assize, so that one of such justices be a judge of the king's bench, or common pleas, or the king's sergeant sworn. They usually make thencircuits in the respective vacations after Hilary and Trinity terms, assizes being allowed to be taken in the holy time of Lent, by consent of the bishops, at the king's request, as expressed in stat. Westm. 1, 3 Ed. I. c. li. The prudent jealousy of our ancestors ordained that no man of law should be judge of assize in his own country wherein he was born and doth inhabit;1 and a similar prohibition is found in the civil law."2 But that restriction is taken off by the statutes 12 Geo. II. c. xxvii. and 49 Geo. III. c. xci.
"The judges upon their circuits now sit by virtue of four several authorities:—1. The commission of the peaet. 2. A commission of oyer and terminer. 3. A commission of general gaol-delivery." The consideration of all which belong to a subsequent part of this commentary. The 4th commission was formerly a commission of assize, directed to the sergeants and justices therein named, to take (together with their associates) assizes in the several counties; that is, to take the verdict of a particular species of jury, called an assize, and summoned for the trial of disputes concerning land: but this mode of proceeding is now abolished ;3 and the fourth and last commission, now in actual use, consequently is, 4. "that of nisi prius, which
1 Stat. 4 Ed. III. c. ii.; stat. 8 Rich. II. c. ii.; stat. 33 Hen. Till, c. xxiv.
2 L. iii. ff. De offic. adsessor. L. alt . Cod. de aim. sacrileg.
3 Stat. 3 and 4 Wm. IV. c. xxvii
is a consequence of the commission of assize1 being annexed to the office of those justices by the statute of Westminster 2, 13 Ed. I. c. xxx.; and it empowers them to try all questions of fact issuing out of the courts at Westminster that are then ripe for trial by jury. These, by the course of the courts, are usually appointed to be tried at Westminster in some Easter or Michaelmas term, by a jury returned from the county wherein the cause of action arises; but with this proviso, nisiprius, unless before the day prefixed, the judges of assize come into the county in question. These commissions are constantly accompanied by writs of association, in pursuance of the statutes of Edward I. and II., before mentioned, whereby certain persons (usually the clerk of assize and his subordinate officers) are directed to associate themselves with the justices and sergeants, and they are required to admit the said persons into their society, that a sufficient supply of commissioners may never be wanting. But to prevent the delay of justice by the absence of any of them, there is also issued, of course, a writ of si non omnes, directing that if all cannot be present, any two of them (a justice or sergeant being one) may proceed to execute the commission.
And this will suffice concerning the public courts of common law and equity. ,
1 Salkeld, 454.