« НазадПродовжити »
COURTS OF KING'S BENCH AND EXCHEQUER.
III. The Court of King's Bench forms that part of the Aula Regis which continued to subsist after the dismembercloth which was wont to be laid on the table there.- Hist. Exchega vol. i. p. 161. But in the following page he refers to the Exchequer of Normandy mentioned in the Grand Custumier, or Code of Norman Laws and Customs. The Norman French probably derived the word Echiquier from the Latin Scaccarium ; and the English no doubt borrowed the name from the French. Camden, however, in his Britannia, quoting Gervase of Tilbury, who lived or wrote about 1160, says,-“ Scaccarium tabula est quadrangula quæ longitudine quasi decem perlum et quinq latitudine ad modum mensæ circumsedentibus apposita ; vindique habet limbum latitudinis quasi quatuor digitorum supponitur Scaccario annus in ternino Paschæ emptus non quilibet, sed niger virgis distinctus, distantibus à se virgis vel pedis vel palmæ extentæ spatio.”—Ed.
The Court of Exchequer now consists of the Chancellor of the Exchequer for the time being, a Chief Justice, and four puisne judges. The first judge is called Chief Baron, and the other four, Barons of the Exchequer. (See Selden's Titles of Honour.) Thiş court, which was regarded as Fiscus Principis, or Ærarium Publicum, is now considered the lowest in rank of the great courts. It was formerly held at the King's Palace, and all causes involving the rights and revenues of the Crown were supposed to be heard and determined there. Its treasury was the chief deposit of the records of other courts. The summonses or writs to assemble Parliament were issued by its officers, and its acts and decrees relating to the king's revenues were not controlled by any other of the ordinary royal courts of justice. At present it consists of two divisions -one as a court of common law, the other holding jurisdiction in all matters relating to the excise, customs, and other public revenues. Formerly the plaintiff was obliged fictitiously to allege himself the king's debtor before the court could take cognizance of his plea. But the 2 Wm. IV. c. 39, assimilates the practice of all the common law courts. The 3 and 4 Wm. IV. abolishes the offices of Lord Treasurer, Remembrancer, Secondaries, Deputy Remembrancer, and numerous sinecure offices. Some other appointments were abolished by the 5 and 6 Vict. c. 86.-Ed.
The Court of Exchequer Chamber was first established in the 31st of Edward III. In this court the judges of the superior courts hear arguments in important criminal cases, and in cases of magnitude and difficulty, in which doubts have arisen in the courts below. As a Court of Error this division of the superior courts is regulated by the 11 Geo. IV. and 1 Wm. IV. c. 70. In Scotland several sinecure offices in the Court of Exchequer were abolished in 1832 by the 2 & 3 Wm. IV. c. 54. In Ireland the Court of Exchequer still consists of a Chief Justice or Baron, and Justices or Barons, whose appointments are regulated by the 4 Geo. III. c. 30, the act by which the court was instituted. The Chancellor of the Exchequer may be considered only as an honorary judge, as he never sits during pleadings in that court.- Ed.
ing of the Common Pleas. This court enjoys the most extensive authority of all other courts: it has the superintendence over all corporations, and keeps the various jurisdictions in the kingdom within their respective bounds. It takes cognizance, according to the end of its original institution, of all criminal causes, and even of many causes merely civil. It is composed of the Lord Chief Justice and three other judges. Writs of error against the judgments passed in this court in civil matters are brought before the Court of the Exchequer Chamber, or, in most cases, before the House of Peers.
IV. The Court of the Exchequer Chamber. When this court is formed by the four barons or judges of the Exchequer, together with the chancellor and treasurer of the same, it sits as a court of equity. When it is formed by the twelve judges, to whom sometimes the Lord Chancellor is joined, its office is to deliberate, when properly referred and applied to, and give an opinion on important and difficult causes, before judgments are passed upon them in those courts where the causes are depending. *
* The Queen's or King's Bench (Aula Regis), at a very early period of English history had a jurisdiction not only in pleas of the crown, but in common pleas, and in pleas of the Exchequer. It was also united with the Grand Council, until the office of Chief Justiciary was abolished by Edward III. But its original connection with the Grand Council, as the High Court of Parliament, is still continued, although the Peers exercise no jurisdiction, except in cases of appeal from the modern Queen’s Bench or inferior courts, and in cases of impeachment by the Commons.- Ed.
Except with regard to the Forests the Court of Common Pleas ceased, in the reign of Edward I., to follow the king, and the Justices in Eyre were supplanted by Justices at Nisi Prius.
The Court of Queen's Bench has one Chief Justice, called the Lord Chief Justice of England, and four puisne judges : and although it ranks higher than the Courts of Common Pleas and Exchequer, its practice and jurisdiction are now nearly similar. By a recent statute, any person may be summoned for the fulfilment of any contract entered into in England to appear in any of the high courts of law at Westminster, and, in case of non-appearance either personally or by counsel, judgment will go by default. Upon such judgment, if in the kingdom, he can be arrested, and his goods may be attached whether in or out of the kingdom.-Ed.
ON THE LAW THAT IS OBSERVED IN ENGLAND IN REGARD TO CIVIL
CONCERNING the manner in which justice is administered in England, in civil matters, and the kind of law that obtains in that respect, the following observations may be made.
The beginning of a civil process in England, or the first step usually taken in bringing an action, is the seizing, by public authority, the person against whom that action is brought. This is done with a view to secure such person's appearance before a judge, or at least make him give sureties for that purpose.* In most of the countries of Europe, where the forms introduced into the Roman civil law in the reigns of the later emperors have been imitated, a different method has been adopted to procure a man's appearance before a court of justice. The usual practice is to have the person sued summoned to appear before the court, by a public officer belonging to it, a week beforehand: if no regard is paid to such summons twice repeated, the plaintiff (or his attorney) is admitted to make before the court a formal reading of his demand, which is then granted to him, and he may proceed to execution.
In this mode of proceeding, it is taken for granted that a person who declines to appear before a judge to answer the demand of another, after being properly summoned, acknowledges the justice of such demand ; and this suppo sition is very just and rational. However, the above
* Arrestment and imprisonment for debt, or any civil action by mesne process, was abolished by the 1 & 2 Vict. c. 110, except in certain cases specially provided for in that act. This has proved a great amelioration in the law, and a security against malicious prosecutions; and the change has been found more favourable to the creditor, than when the old Fleet Prison existed, and when a debtor might be incarcerated for life by a malicious creditor. The extension of the jurisdiction of the County Courts has also tended to decrease the expenses and expedite litigation in matters of debt.-Ed.
f If judgment is recorded on default of appearance, a proclamation of outlawry against the defaulter may be published by the sheriff.--Ed. mentioned practice of securing beforehand the body of a person sued, though not so mild in its execution as that just now described, nor even more effectual, appears more obvious, and is more readily adopted, in those times when courts of law begin to be formed in a nation, and rules of distributive justice to be established ; and it is very likely followed in England as a continuation of the methods that were adopted when the English laws were yet in their infancy.
In the times we mention, when laws begin to be formed in a country, the administration of justice between individuals is commonly lodged in the same hands which are intrusted with the public and military authority of the state. Judges, invested with a power of this kind, like to carry on their operations with a high hand: they consider the refusal of a man to appear before them, not as being barely an expedient to avoid doing that which is just, but as a contempt of their authority : they of course look upon themselves as being bound to vindicate it; and a writ of capias is speedily issued to apprehend the refractory defendant. A preliminary writ or order of this kind becomes in time the first regular step of a law-suit; and hence it seems to have happened, that in the English courts of law, if I am rightly informed, a writ of capias is either issued before the original writ itself (which contains the summons of the plaintiff, and a formal delineation of his case), or is joined to such writ by means of an ac etiam capias, and is served along with it. *
In Rome, where the distribution of civil justice was at first lodged in the hands of the kings, and afterwards of the consuls, the method of seizing the person of a man against whom a demand of any kind was preferred, previously to any judg. ment being passed against him, was likewise adopted, and continued to be followed after the institution of the prætor's court, to whom the civil branch of the power of the consuls was afterwards delegated ; and it lasted to very late times, that is, to the times when those capital alterations were made in the Roman civil law, during the reigns of the later
* The legal forms in common pleas have been greatly simplified in 1852 by the Common Pleas Procedure Act.-El.
emperors, which gave it the form it now has in those codes or collections of which we are in possession.
A very singular degree of violence even took place in Rome, in the method used to secure the persons of those against whom a legal demand was preferred. In England, the way to seize a man under such circumstances is by means of a public officer, supplied with a writ or order for that purpose, supposed to be directed to him (or to the sheriff his employer) from the king himself. But, in Rome, every one became a kind of public officer in his own cause, to assert the prætor's prerogative; and, without any ostensible legal license or badge of public authority, had a right to seize by force the person of his opponent, wherever he met him. The practice was, that the plaintiff first summoned the person sued with a loud voice, to follow him before the court of the prætor.* When the defendant refused to obey such summons, the plaintiff, by means of the words licet antestari ? requested the bystanders to be witnesses of the fact; as a remembrance of which he touched the ears of each of them ; and then proceeded to seize his opponent, by throwing his arms around his neck (obtorto collo), thus endeavouring to drag him before the prætor. When the person sued was, through age or sickness, disabled from following the plaintiff, the latter was directed by the law of the Twelve Tables to supply him with a horse (jumentum
The above method of proceeding was, however, in aftertimes mitigated, though very late and slowly. In the first place, it became unlawful to seize a man in his own house, as it was the abode of his domestic gods. Women of good family were in time protected from the severity of the above custom, and they could no longer be dragged by force before the tribunal of the prætor. The method of placing a sick or aged person by force upon a horse seems to have been abolished during the later times of the republic. Emancipated sons, and freed slaves, were afterwards restrained from summoning their parents, or late masters, without having expressly obtained the prætor's leave, under the penalty of
* Ad tribunal sequere, in jus ambula.