OF THE PUBLIC COURTS OF COMMON LAW AND EQUITY. 1. Court of Piepoudre -2. Court Baron-3. Hundred court-4. County court -5. The court of Common Pleas-6. The court of Queen's Bench-7. The court of Exchequer-8. The high court of Chancery-9. The court of Ex- chequer-Chamber-10. The house of Peers-11. Courts of Assize and Nisi Of Ecclesiastical Jurisdiction-Spiritual distinguished from temporal part- Committee of the Privy Council-7. Bishop's court, held according to stat. 3 and 4 Vict. c. lxxxvi.-1. Pecuniary causes II. Matrimonial causes II. Testamentary causes-Criminal jurisdiction - Ecclesiastical censures - OF COURTS MILITARY AND MARITIME, AND COURTS OF A SPECIAL JURISDICTION. 1. The court of Chivalry-2. The high court of Admiralty.-1. The court of Commissioners of Sewers-II. The court of Marshalsea, and the Palace court- II. The court of the Duchy-Chamber of Lancaster-4. Courts of the royal franchise of Ely, and the counties palatine of Chester, Lancaster, and Durham -v. The Cinque Ports-vi. Courts of the Principality of Wales-VII. Stan- General system-Process-Pleading-Trial: by Record, by Inspection, by Cer- tificate, and by Jury - Observations on Trial by Jury-Judgment—Arrest of Judgment-New Trials - Writ of audita querela -Writ of Error - Execu- 1. The high court of Parliament-2. The court of the Lord High Steward of Great Britain-3. The court of Queen's Bench-4. The court of Chivalry — 5. The high court of Admiralty-6, 7. Courts of Oyer and Terminer, and general Gaol-delivery-8. The Central Criminal court-9. The court of gene- ral Quarter-Sessions of the Peace-10. The Sheriff's Tourn-11. The Court Leet 12. The court of the Coroners 13. Court of the Clerk of the Misprisions High Crimes and Misde- meanours Contempts- Summary proceedings - I. Regular and ordinary pro- OF SHERIFFS, CORONERS, JUSTICES OF THE PEACE, CONSTABLES, SURVEYORS OF HIGHWAYS, OVERSEERS OF THE poor, and of muNICIPAL CORPORATIONS Page 371 1. The right of Personal Security-2. The right of Personal Liberty-3. The right of Property Means whereby the Rights of the Subject are main- Their Privileges and Disabilities - Bishops-Priests-and Deacons-1. Arch- bishops and Bishops-11. Deans and Chapters-III. Archdeacons --Iv. Rural Deans - v. Parsons and Vicars VI. Curates VII. Churchwardens Division into Nobility and Commonalty-Barons-Earls-Dukes - Marquesses -Viscounts - Precedency-Law of dignities-Claims to dignities - Lords and Ladies in reputation or by courtesy-Children of Peers-Knights of the Garter-Bannerets royal- Baronets Bannerets -Knights of the Bath - Knights of the Thistle and St. Patrick-Knights Bachelors-Esquires - Gen- tlemen Observations on rank - Citizens, Burgesses, and Yeomen History of the Military System from the Conquest-Military Tenures-Commis- sions of array-Sergeants-at-arms-Yeomen of the Guard-Gentlemen Pen- sioners-Statute of Winton-Lords Lieutenants-Militia-Standing Army- The necessity thereof - Courts-martial-Military law-The Naval State- Maritime law-Navigation laws — Impressment - Registry of seamen - Dis- COMMENTARIES ON THE CONSTITUTIONAL LAW OF ENGLAND. CHAPTER I. COMMON LAW OF ENGLAND. THERE are few subjects of investigation bearing on the temporal welfare of man more practically important than those laws whereby the benefits of a social state, and the security of persons and their rights, are established and maintained. That species of knowledge would be valuable even under a despotism. We should be desirous of knowing the principles upon which we are governed, even if we lived under the uncontrollable power of a despotic sovereign; as we are impelled by a laudable ambition to nquire into the laws by which nature is regulated, though we feel our inability to influence their action even in the slightest degree. But, under the form of government established in this country, there are further reasons which render it highly blamable in any Englishman to neglect obtaining a knowledge of the constitution of his country. We all enjoy, or, at least, we all either actually hold, or are qualified by the law to obtain, certain privileges and franchises, which, in fact, invest the possessor with a portion of the power whereby the British empire may be ruled either for the advantage or to the detriment of that great body politic. The moral and religious responsibility of the man who votes on the hustings, or even asks his neighbour to vote, or exercises the smallest public function; is, indeed, no less real and stringent than that of the highest ministers of the crown. The welfare of every free state depends, in a very great measure, upon the honest and prudent exercise of the franchises entrusted by the law to the mass of private citizens. It must frequently happen that the greatest questions, involving most important interests, and even the welfare of the whole empire, are practically decided by votes given at elections. On those votes B always depends the question, by what men the empire shall be governed. How, indeed, can honest men be placed in the high offices of the state, unless the mass of the community possessing political power exercise it in favour of principles on which such men can consistently govern? How can those who govern do so in a manner consistent with the honour and safety of the kingdom, if they have not the support of the mass of her Majesty's subjects, who are entrusted with the parliamentary and municipal franchise and other public privileges? How can the wisest of men govern wisely, if the great body of the community, or any large portion of it, choose, through ignorance, perverseness, or factiousness, to interfere with the deliberations of those in whom the constitution has vested the power to decide on matters of state,-thus confounding the right of petitioning with that of legislating; or to urge the adoption of extreme or dangerous measures, placing men deficient in prudence or information in the House of Commons, and in offices of municipal trust and influence? These very slight and superficial considerations are sufficient to convince any man of good sense, that it is necessary for the welfare of the commonwealth that all classes of the community should act with the utmost caution in the discharge of their public duties as subjects of the British crown. How important is it, then, that we should all know something concerning the principles of that constitution in the administration of which we are all so much concerned! How necessary is it for every man, who wishes to exercise his privileges as a British subject with a safe conscience, to be acquainted with the constitution, for the welfare and good administration of which he, to the extent of his power and influence, is responsible! It is undoubtedly incumbent on every man who is entrusted with any franchise or public duty whatsoever, or who desires to take any part, directly or indirectly, in affairs relating to the interests of his country, or the rights of his fellow subjects, to make himself acquainted with the constitution, on which the preservation of those interests and rights depends. And it is especially necessary that a subject of the British crown should diligently apply himself to the acquisition of that knowledge, because he cannot obtain it suddenly as occasion may require, nor safely apply it pro re natâ, and without previous study and research. The British constitution is not to be found in any written code or charter. It does not consist in a few general principles, under the guidance of which a man may safely decide on the wisdom of measures canvassed on the hustings, or proposed in parliament; but in a highly complicated and artificial system, interwoven with the national jurisprudence, combining the advantages of monarchy, aristocracy, and democracy, and guarding against the inconveniences to which the simple rule of each of those powers is naturally liable. Such a form of civil polity must evidently be studied, by those who partake of its privileges, with some considerable degree of detail, without which they cannot accurately understand what it is, — on what authority its different institutions and maxims are established, and on what reasons they are grounded, so as to perceive the bearing of any proposed measure or line of policy upon the benefits which we derive therefrom, -or upon the inconveniences or defects of our municipal laws, which may from time to time require amendment. We have already observed, that the British constitution is not to be found in any separate code or charter, like that of France and several other continental nations. It is a part of what is emphatically called by the general appellation of the law of the land, which is the birthright of the subject. It was not enacted nor established at any one time, but has grown up with the body of the common and statute-law of the kingdom, whereof it is the most noble and important part. A definite and accurate notion cannot, therefore, be formed respecting the constitution, without some preliminary inquiry into the nature and origin of our municipal law, and of the different parts into which it is divided. How, indeed, can any one have a clear notion of the civil polity of the kingdom, without knowing what the law of the land is, whereby that polity is constructed and the empire is governed? We will, therefore, previous to entering on the examination of the constitutional law of England, take a cursory view of the nature and divisions of the English law. The well-known definition of municipal law, or the law by which each country is separately governed, is, that "it is a rule of civil conduct prescribed by the supreme power in a state." The law of England, understood in this general sense, as the rule to which all persons within its jurisdiction must conform, and which is prescribed to them, either directly or by implication, by the supreme authority of the state, is divisible into two parts,-Common Law, and Equity. In this chapter we will treat of Common Law, and in the next of Equity. The Common Law, as contradistinguished from Equity, is divided into two parts, — unwritten law, or common law strictly so called, and written law, or statute-law. The former derives its force from custom, and the latter from enactment by parliament. Customary law, which forms a part of almost every system of jurisprudence, has been held by high authority to derive its force from the tacit assent of the legislative power. Thus, as the Roman people had the power of making law, the Roman jurisconsult Salvius Julianus, in asserting the authority of custom, says, "What difference in effect |