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indictments of treasons, insurrections, felony, and mayhem, which shall be found in any of the queen's courts against a scholar or other privileged person. All offences under the degree of treason, felony, and mayhem, are cognisable before the chancellor; but the trial of those graver offences is committed to the high steward of the university, with a jury composed partly of matriculated laymen and partly of freeholders, in equal numbers: and that officer in such cases receives a special commission under the great seal, to try the indictment, together with other persons therein named. But the indictment must first be found by the grand jury, and cognisance thereon claimed for the university by the vice-chancellor.1 1 Blackst. Com. b. iv. c. xix. p. 277, 278.
OF THE ADMINISTRATION OF JUSTICE IN CIVIL CASES.
The general scheme on which our ancient judicial polity was originally constructed seems to have been, that matters of minor importance, in which the easy and cheap administration of justice is preferable to a more solemn and costly process, should be decided in the local courts of manors, tithings, hundreds, and counties; reserving more important subjects of litigation for the superior tribunals, together with a supervision over the whole by way of appeal. This was especially the case before the Norman conquest, when the local institutions of the tithings, hundreds, and counties, were in full vigour. But as the law of property became more intricate, the people grew richer, and communications between the capital and the provinces easier and more frequent, this system was gradually superseded by the modern judicial constitution, wherein almost every question in litigation is drawn into the superior courts. This change has, no doubt, produced some inconveniences, which are partially and may be still further obviated by the establishment of courts of request, and other local judicatures, for the trial of minor causes; but, upon the whole, the advantages which have resulted therefrom greatly preponderate over its defects. The regular and frequent circuits of the judges, for the trial not only of criminal cases, but of the mass of civil actions commenced in the superior courts, are attended with most beneficial results, independently
of the mere despatch of judicial business. The whole population of the provinces is assembled before their tribunal; the humbler classes are awed into reverence for justice by the outward demonstrations of honour surrounding her high-priests;1 the higher orders (and especially those who are themselves entrusted with judicial functions) receive from them instruction, example, and admonition; and the regal office and dignity become in a manner visible through their representatives in the most remote districts of the kingdom. Now it is evident that the great mass of judicial business being transacted bj the judges of the courts of Westminster, they thereby acquire a much greater practical and real authority and importance, than they would have if the cognisance only of such suits as, on account of their importance, appeared unfit for the local jurisdictions were reserved to them. The effect of assembling the great body of the bar in London, in constant attendance upon the highest tribunals of the kingdom, is also most important, with reference both to that body and to the judges. It tends to raise the character of the former, and to surround the latter with the salutary stimulus and control of a learned public opinion.
However cheap and expeditious the despatch of business by a regular system of local courts might be, these great but less obvious public benefits would be thereby either diminished or lost. The circuits of the judges would no longer be the great centres, around which the whole business of the provinces is arranged; their influence over the magistrates and people would be greatly weakened; and the bar (out of whom the judges must be
1 Ulpian says, Ut eleganter Celns definivit. Jus est art bom el aqui; cujus merito quis MM sacerdoles appellet. L. i. ff. De just, e'jur.
chosen) being parcelled out in the different provincial towns, would soon become very inferior to what they now are. These considerations are, indeed, of a very grave nature in a country where all government must be by law, and where so much must consequently depend upon those to whom the administration of the law is committed. Any deterioration of that body, who are the depositories and interpreters of the law, or any inroad upon those principles whereby its administration is maintained in a high and majestic state, must necessarily involve a serious injury to the constitution.
The system on which justice is administered is indeed highly important, when considered as a part of the public law of the land, and as the administration of the judicial power,—one of the three great branches of the sovereign authority or majesty of the commonwealth. Under this aspect we will now proceed to examine the method of administering the law in civil matters in the superior courts of law and equity; and in so doing, it will be necessary to enter no further into matters of detail thaw the full understanding of the general plan requires, confining ourselves to the chief features of the ordinary proceedings commenced in the superior courts.
And first of proceedings in the courts of common law. Every suit was formerly commenced by suing out an original writ, in the form of a mandatory letter from the king, in the officinajusticia, or writ of justice, in the court of chancery. But original writs are now requisite in no personal action; that is to say, in no action whereby a man claims a debt, or personal duty, or damages in lieu thereof; or whereby he claims satisfaction in damages for some injury done to his person or property. They are, however, still necessary in real actions, which are those that concern real property only, and whereby the plaintiff claims title to