The English Courts of Justice

In England and Europe after the feudal law was introduced, governance was done in the same way as a baron in his jurisdiction. The baron was a steward who managed all affairs in his lord’s county.

The grand justiciary managed all justice in the kingdom.

• He appointed sheriffs and other inferior officers.
• He was himself a great lord.
• He became as powerful as the king in every country except in England.
  • Edward I saw the danger and got it prevented.

The courts were created based on the speed of resolution and then the nature of the cases

All laws were determined by the justiciary as the king’s court. It always attended to the king and to delays and adjournments in civil suits

• Criminal causes always have a speedier resolution.
  • We tend to think that when a person’s life is at stake, the debate should be longer. But these cases rouse resentment which then pushes for punishment.
• But non-criminal causes such as those for money might take longer.
  • It does not matter to the spectator how a trifling matter of cash is determined.

This led to common causes being separated from the king’s court, into the court of common pleas at Westminster. When common pleas were removed, the criminal and fiscal powers were connected. The power of the great justiciary was reduced a bit. Afterwards, Edward I divided the business of the justiciary into three different courts=

1. The court of king’s bench
2. The court of exchequer
3. The court of common pleas

The court of king’s bench

The court of king’s bench tried all criminal suits and every breach of the king’s peace.

• The appeal from the court of common pleas went to it.
• It was called king’s bench because the king then frequently sat on it.
  • This cannot be done now since it is improper that the king should judge of breaches of the king’s peace.

The court of exchequer

The court of exchequer judged in all affairs between the king and his subjects. This included the debts due by either of them to the other, and whatever regarded the revenue.

The court of common pleas

All civil suits were tried in the court of common pleas.

The court of chancery

The court of chancery was originally not a court. The chancellor was just a keeper of briefs or writs according to which justice was done. How did this court come about?

Edward I abolished the power of the grand justiciary. He employed mean persons to be judges, generally clergymen.

• Their jurisdictions would be exercised very precariously.
  • In criminal and civil cases, they interposed with hesitation.
    • In criminal cases, they were mediators.
    • In civil cases, they were arbitrators.
• They were unwilling to give justice in cases where they had no precedent from the court of justiciary.

Because of this, all the decisions made by the court of justiciary were kept as briefs. The office of chancellor was tasked to keep such briefs.

• If a person had a lawsuit, he went to the clerk of the court of chancery.
  • The clerk examined the briefs.
    • If he found one that comprehended your case, justice was done accordingly.
    • But if one could not be found, you could have no justice.

Thus, the chancellor was not a judge originally.

• In Scotland, the office of the English chancellor is lodged in the court of session.
• In England, a brief was sent from the chancellor to the sheriff by which he was obliged to appear before the king’s judges.

This led to a great irregularity and inaccuracy of the proceedings of the judges.

• This gave great jealousy to the king and so he issued many severe sentences against the judges.
  • £10,000 was once levied from the judges on account of corruption.

They were therefore tied down strictly to the chancery briefs.

• They were always bound by their records so that they could not be amended.
• They could not even correct wrongly-spelled words.
  • This precision still remains in some cases not remedied by the statutes of amendment.
  • A mere orthographical error has had no effect in many cases.

The judges were therefore tied down to the precise words of the brief, or a statute.

• This was the origin and jurisdiction of the court of chancery.

During the improvement of the law of England, rivalries arose among the several courts.

• Each of the courts began to extend its power and encroach on the privileges of another
• The court of chancery increased its influence.

The Power of the court of king’s bench

An appeal was judged first, immediately, and afterwards by the court of king’s bench.

• A writ of error let in encroach on the jurisdiction of the court of common pleas.
• They used it whenever they supposed the person to be guilty of a trespass.
  • For example, when a man owed £10 and did not come to pay it, an order went out from the king’s bench to examine him.
  • If he intended to conceal himself, they punished him.

Presently, an action on contract can come immediately before the king’s bench. In this way, this court extended its power. Being supreme over all, none could encroach on it. The court of exchequer brought in civil causes to be tried immediately by them in the following way=

• If a man owed money to the king and the man cannot pay unless his debtors first pay him.
• The court of exchequer then sued his debtors by the quo minus (by what he is rendered less able to pay the king).

The king had many debts. The profits of the judges arose from sentence money, which depended on the court’s business. Thus, the judges eagerly grabbed this extension of their power. All the courts tried to encourage prosecutors to come before them through the speed of their decisions and accuracy of their proceedings.

How did the chancellor attain his equitable jurisdiction?

The Power of the court of chancery arose from the Increase in Commerce

The improvement of arts and commerce created many lawsuits unheard of before. People suffered much by the imperfections of law. Edward III found that there were a great many injuries not covered by any brief or court statute. Therefore, the parliament allowed that if a person applied to the clerk of chancery and found there was no brief that could give him any remedy, the clerk should look for some briefs of a similar nature. Out of them, he would compose a new brief by which the complainer might have redress.

In this way, the chancery prescribed rules to the other courts and appointed the briefs and manner of proceeding. The chancery got these affairs into its own hands. There could be no appeal brought from the courts of king’s bench or of common pleas to that of chancery, but they applied to it for what the common law could not redress.

In this way, the chancellor obtained the power of judging in all cases of equity. This then was extended to most of the civil cases, the chief of which are=

1. The specific performance of contracts

By the common law, if a person was bound by contract to deliver land and afterwards refused to do it, he was only obliged to pay damages, but not to perform it. The chancery was now considered as a court of conscience and enforced its performance.

2. Frauds in trust that could not be resolved by the common law

• The land-grabbing by the church deprived the king of land tax and so an act was passed against it.
• The clergy was ordered that the lands should be left to certain persons who would sell them for the benefit of the church.
  • If they did not perform it, then it was a fraud in trust.
  • The chancellor allowed the bishop to see it done.
• Similarly, when persons in the state of affairs back then were obliged to alienate their estates to persons that had no concern in them, the chancellor caused them to be restored.
  • Wills, legacies, and things of this sort also fell under the scope of the chancellor.

The origin of juries

In the beginning of the allodial government, the several courts had improved very little. They did not have the experience to examine matters thoroughly. When any person was tried for an action based on his oath, he was obliged to bring 12 compurgators to swear that the oath was just. This is seen nowadays as the actions of debt, a person can bring in people to swear that his oath is just to win the case.

This way of trying was one of the great causes of judicial combat. A nobleman who was injured by perjured fellows, chose to fight in the field and appeal to God’s judgement than to leave the decision to them.

Henry II first instituted=

• that the sheriff and a certain number of persons best acquainted with the crime should have everything laid before them, and
• that the person should be judged by their sentence.

The law of England, always the friend of liberty, deserves praise for the creation of impartial juries.

• The people chosen for juries must be near the place where the crime was committed so they can be acquainted with it.
• The panel can lay aside 30 of the jury and challenge them=
  • per capita (per juryman), or
  • any number of them if he suspects the sheriff of partiality.

The court judges the relevancy of the suspicion of partiality. The institution of the jury is the greatest security for life, liberty, and property. The judges=

• are men of integrity
• are quite independent
• hold their offices for life but are tied down by the law.

The jurymen are your neighbours who are to judge on facts that your life depends on. The judges can also lay them aside for several reasons.

The English juries are only defective in one point relative to the Scottish juries. In England the whole jury must be unanimous. This makes the work of a juryman very disagreeable.

• A case may appear to you more clearly than it does to me.
• Or it may really be different from what it appears to either of us, yet we need to agree.
  • As a result, one of us should swear contrary to our conscience.
  • In criminal causes, there is little danger since we are generally disposed to favour innocence and to preserve life.
  • But in civil cases, people are not so much troubled.
    • They are not so much disposed to favour.
    • Many of them are exceedingly doubtful.

People of fashion are not fond of meddling in a jury with such inconveniences. Therefore, only the meaner sort of people become jurors. A great man would not choose to be so often called and treated in such a way. In this case, the law providing for security has done too much.

In Scotland, unanimity is not required and so the work is not so disagreeable. Even if a person differs from the majority, he may stand by his opinion. The people of the highest rank are willing to be jurors.

In cases that come before the court of chancery, no jury is required. The court of session in Scotland has removed juries in civil causes.

Besides the courts mentioned, there were others created by the king’s patent. Henry 8th created three.

1. The court of high commission judged ecclesiastics
2. The court of star chamber judged cases less than death
3. The court of wardship took care of the king’s interest in these emoluments

• This was removed by Charles II who accepted a sum for the whole.

Nowadays, the king cannot create a court without parliament’s consent. In Europe, the law is most accurate in England, because the other European parliaments are still new. The parliament of Paris was only created around the time of Henry 8th of England.

The British parliament consists of many people of great dignity. All new courts=

• disdain to follow the former rules
• are a great evil, because their power at first is not precisely determined.

Therefore, their decisions must be loose and inaccurate.