AS for the Tribunals or Courts of Justice in England, there are three several sorts of them; some Spiritual, others Temporal, and one mixt; which last is the greatest and by far the most honourable, call’d the Parliament;Parliament. a French word of no great antiquity. Our Saxon Ancestors nam’d it , that is, an assembly of the wise men, and , or Council, and (from the greek word Synod) a great meeting. Praesentia Praelatorum AEtolia The Latin writers of that and the next age, call it Commune Concilium, Curia altissima, Generale Placitum, Curia Magna, Magnatum Conventus, Præsentia Regis, Prælatorum, Procerumque collectorum, Commune totius regni concilium, &c. And as Livy calls the general Council of Ætolia, Panetolium, so this of our’s may be term’d very properly Pananglium. For it consists of the King, the Clergy, the Nobility, and Knights and Burgesses elected; or, to express my self more plainly in Law-language, the King, the Lords Spiritual and Temporal, and the Commons, who represent the body of the Nation. This Court is not held at any set time, but is call’d at the King’s pleasure, when matters of great difficulty and importance are to be consider’d, for the general benefit of the State; and then again, is dissolv’d when he pleases: ⌈(Only by a late Statute,Stat. 1. Georg. c.38. Before, by 6 W. & M. three. he is now obliged, in Law, to summon a new Parliament once every seven years, at least:)⌉ It has a supreme and over-ruling Authority in making, confirming, repealing, and explaining Laws, reversing Attainders, determining causes of more than ordinary difficulty between Subject and Subject; and, to be short, in all things which either concern the State in general, or any particular Person.
King’s Court. Immediately after the coming-in of the Normans, and for some time before, the next to this was the King’s Court, which was held in the King’s Palace, and follow’d the King where-ever he went. For in the King’s Palace there was a peculiar place for the Chancellor or Clerks; who had the issuing out of Writs, and the ordering of the Seal; and likewise for Judges, who had not only power to hear pleas of the Crown, but all Causes between private persons. There was also an Exchequer for the Treasurer and his Receivers; who had charge of the King’s Revenue. These, each of them, were accounted members of the King’s family, and had their meat and cloaths of the King. Hence, Gotzelin in the life of S. Edward, calls them Palatii Causidici; and Joannes Sarisburiensis, Curiales.Angliae But besides these, and above them, in the Administration of Justice, was the Justitia Angliæ, Prima Justitia, Justitiarius Angliæ, and Justitiarius Angliæ CapitalisThe Chief Justice., i.e. the Chief Justice of England; who was constituted, with a yearly stipend of a thousand marks, by a Patent in this form: The King to all the Archbishops, Bishops, Abbots, Priors, Counts, Barons, Viscounts, Foresters, and all other his faithful subjects of England, Greeting. Whereas for our own preservation, and the tranquillity of our Kingdom, and for the administration of justice to all and singular the Subjects of this Realm, we have constituted our trusty and well beloved Philip Basset, Justice of England, during our Royal will and pleasure; we do enjoyn and require you by the faith and allegiance you owe us, that in all things relating to the said Office, and the preservation of our Peace and the peace of our Kingdom, you be aiding and assisting to him, so long as he shall continue in the said Office. Witness the King, &c.
But in the reign of Henry the third, it was enacted, that the Common-Pleas should not follow the King’s Court, but be held in some certain place; and therefore a little after that, the Chancery, the Pleas of the Crown, and the Exchequer, were remov’d from the King’s Court, and establish’d a-part in fix’d and certain places; as some (how truly I know not) have told us.
Having premis’d thus much; I will add somewhat concerning these Courts and others that sprung from them, as they stand at this day. And seeing some of them are Courts of Law, namely, the King’s-Bench, Common-Pleas, Exchequer, Assizes, † † Star-Chamber, Court of Wards, C.and the Court of Admiralty; and * * Others, C.another of Equity, viz. the Chancery¦¦ The Court of Requests, and the Councils in the Marches of Wales, and in the North, C.: I will briefly insert under the several heads, what I have learnt concerning each.
The King’s-BenchThe King’s Bench., so call’d because the Kings themselves were wont to preside in that Court, takes cognizance of all pleas of the Crown, and many other matters relating to the King, and weal-publick; it has power to examin and reverse the Judgments of the Common-pleas. The Judges there, besides the King himself when he is pleas’d to be present, are, the Chief Justice of England, and † † Four, C.three others, as the King pleases.
The Common-PleasCommon Pleas. has this name, because the pleas between subject and subject are by the Common law triable therein. The Judges are the Chief Justice of the Common-Pleas, and † † Four, C.three others or more, to assist him. Officers belonging to this Court, are the Keeper of the Writs, three Protonotaries, and several others of an inferior rank.
The ExchequerExchequer. deriv’d that name from a table at which they sat. For so Gervasius Tilburiensis tells us, who liv’d in the year 1160. The Exchequer is a square table about ten foot long, and five broad; contriv’d like a dining-table, to sit round. On every side, it has a ledge about four fingers broad. Under it, is spread a cloath of black, and no other colour, bought in Easter-term, with stripes distant from each other about a foot, or a span. A little after: This Court, by report, has been from the very Conquest of the Realm by King William; the design and model of it being taken from the Exchequer beyond Sea. In this, all matters belonging to the King’s Revenue, are heard. The Judges are, the Lord Treasurer of England, the Chancellor of the Exchequer, the Chief Baron, and † † Three or four, C.three other Barons. The Officers of this Court * * Ann. 1607.are, The King’s Remembrancer, the Treasurer’s Remembrancer, the Clerk of the Pipe, the Comptroler of the Pipe, the five Auditors of the ancient Revenues, the Foreign Opposer, Clerk of the Estreats, Clerk of the Pleas, the Marshal, the Clerk of the Summons, the Deputy-Chamberlains, two Secondaries in the office of the King’s Remembrancer, two Secondaries in the office of the Treasurer’s Remembrancer, two Secondaries of the Pipe, four other Clerks in several Offices, &c. In the other part of the Exchequer, call’d † † Recepta. the Receipts, Two Chamberlains, a Vice-treasurer, Clerk of the Tallies, Clerk of the Pells, four Tellers, two Joyners of the Tallies, two Deputy-Chamberlains, the Clerk of the Tallies, the Keeper of the Treasury, four Pursevants ordinary, two Scribes, &c (a). The Officers also of the Tenths and First-fruits belong to this Court. For when the Pope’s authority was suppress’d, and an Act pass’d, that the Tenths and First-fruits of all Ecclesiastical Benefices should be paid to the King, these Officers were Instituted. ⌈Which Revenue hath ever since been enjoy’d by the Crown, until our late Gracious Soveraign Queen Anne, out of a tender Concern for Religion, and the Established Church, gave it in perpetuity, for the augmentation of the Maintenance of the Poorer Clergy; which pious Gift was confirmed in Parliament, in the second year of her Reign.⌉
(a) The present List of Officers, as deliver’d by a good hand, is as follows: King’s Remembrancer, Deputy King’s Remembrancer, eight Attorneys, Treasurer’s Remembrancer, five Attorneys, Office of Pleas, Master and four Attorneys, two Auditors of the Imprest, Deputy Auditor, two Auditors of the Revenues, Deputy-Auditor, Clerk of the Pipe, Comptroller of the Pipe, a Marshal, Master of the first Fruits and Comptroller, Deputy Remembrancer of the first Fruits, Clerk of the Estreats, Receiver, two Chamberlains, two Deputy-Chamberlains, a Chief Usher, four Under-Ushers, &c.
BesidesJustices Itinerant. these three Royal Courts of Judicature; for the speedy execution of Justice, and to ease the subject of much labour and expence, Henry the second sent some of these Judges, and others, every year, into each County; who were call’d Justices Itinerant, or Justices in Eyre. These had jurisdiction as well in Pleas of the Crown as in common causes, within the Counties assign’d them. For that King, as Matthew Paris says, by the advice of his son and the Bishops, appointed Justices in six several parts of the Kingdom; in each part three: who took an oath, to do every man right and justice. This Institution expir’d at length in Edward the third’s time; but was in some measure reviv’d by Act of Parliament a little after. For, the Counties being divided into so many Circuits, two of the King’s Justices go those Circuits twice every year, for the trial of prisoners or Gaol-delivery. Hence, in Law-latin, they are call’d Justiciarii Gaolæ deliberandæ: They are likewise to take cognizance of all Assizes of novel disseisin and of some other things (from which they are call’d Justices of Assize;) and are also to try all issues between party and party, in any of the King’s three great Courts, by † † Per Pares. their Peers. Hence they are commonly call’d Justices of Nisi prius; from the Writs directed to the Sheriff, which have the words Nisi prius in them.
TheThe Star Chamber. † † It is taken away. Star-Chamber, or rather the Court of the King’s Council, * * Takes, C.took cognizance of all matters criminal, Perjuries, Impostures, Cheats, Excesses, &c. This Court † † Is, C.was, in Age, the most ancient, and in Dignity, the most honourable, of them all. For it seems to be as early, as Appeals from the Subjects to their Sovereign, and the birth and rise of the King’s Council. The Judges ¦ ¦ Are, C.were persons of the greatest honour and eminence; being of the King’s Privy-Council. It had the name of Star-Chamber, ever since it was held in a Chamber of that name at Westminster adorn’d with Stars; which † † Has, C.had been long set a-part for that use. For, in an Act of Parliament in Edward the third’s time, we find Conseil en le Chambre des Estoielles, pres de la receipte al Westminster, i.e. The Council in the Star-chamber, near the Receipt at Westminster. The Authority and Jurisdiction of this Court was so much enlarg’d and confirm’d in Parliament by that wise Prince, Henry the seventh; that some have falsly ascrib’d the Institution of it to him. The Judges of this Court * * Are, C.were, the Lord Chancellor of England, the Lord Treasurer of England, the Lord President of the Council, the Lord Keeper of the Privy-Seal, and all of the King’s Council, whether persons spiritual or temporal; also such of the Parliamentary Barons as the King † † Shall think, C.thought fit to call; with the two Chief Justices, or two other Judges in their absence. The Officers ¦ ¦ Are, C.were the Clerk of the Council, the Clerk of the Writs, and of the Process of the Council of Star-chamber, &c. Causes in this Court * * Are, C.were not try’d per Pares according to the Common-Law, but after the method of the Civil-Law. ⌈But this Court, having been guilty of great Abuses (as was declared in Parliament) was entirely taken away, by a StatuteCap. x. made in the sixteenth year of King Charles the first.⌉
The CourtThe Court of Wards. of † † It is taken away.Wards and Liveries (so call’d from Wards or ¦ ¦ Pupillis.Minors, whose causes * * Are, C.were here try’d) was instituted by Henry the eighth. Whereas before, their Causes were heard in the Courts of Chancery and Exchequer. For, by an old Custom (derived from Normandy, and not, as some write, instituted by Henry III.) when any one † † Dies, C.died holding lands of the King in capite by Knight’s service, both the heir, and the estate, with the revenues of it, * * Are, C. were in Ward to the King, till he compleated the age of one and twenty, and then he † † May, C.might sue out his livery. The Judge in this Court, ¦ ¦ Is, C.was the Master-General; under him, a Supervisor of the Liveries, an Attorney-General, a Receiver-General, an Auditor, a Clerk of the Liveries, a Clerk of the Court, forty Feudaries, and a Messenger. ⌈But this Court, with all the Powers thereunto belonging, was taken away and utterly abolished, by a StatuteCap. xxiv. made in Parliament in the twelfth year of King Charles the second.⌉
In after-ages, two other Courts were Instituted for Correcting of Errors; one, for those of the Exchequer, the other for those of the King’s-Bench. The Judges of the first, are, the Chancellor, and the Treasurer of England, taking such of the Judges to their assistance as they shall think fit; those of the latter, are the Judges of the Common-Pleas, and the Barons of the Exchequer.
The Court of Admiralty. The Court of Admiralty has jurisdiction in maritime affairs; and is administer’d by the Admiral of England, his * * Locumtenens.Lieutenant, a Judge, two Clerks, a Servant of the Court, and the Vice-Admirals. Now, for the Courts of Equity.
The Court of Chancery. The Chancery takes its name from the Chancellor, a Title of no great honour under the old Roman Emperors, as we learn from Vopiscus. At present, it is a name of the greatest dignity, and the place of Chancellor, the highest honour in the State. Cassiodorus derives the word à cancellis, i.e. rails, or Balisters, because they examine matters † † Intra secreta Cancellorum.
Epist.6. Lib.11.in a private apartment enclos’d with rails, such as the Latins call’d Cancelli. Consider, says he, by what name you are call’d. What you do within the rails cannot be a secret: your doors are transparent, your cloysters lye open, your gates are all windows. Hence it plainly appears, that the Chancellor sat expos’d to every one’s view, within the rails or cancels; so that his name seems to be deriv’d from them. Now, it being the business of that Minister (who is the mouth, the eye, and the ear, of the Prince,) to strike or dash with cross lines, * * Cancellatim.lattice-like, such writs or judgments as are against law or prejudicial to the State, which is not improperly call’d Cancelling; some think the word Chancellor was deduc’d from thence. And thus we find it in a modern Glossary: A Chancellor is he, whose office it is to inspect the writings, answers, and orders of the Emperor; to cancel those that are wrong, and sign those that are right. Nor is that of Polidore Virgil true, namely, that William the Conqueror instituted a College of Scribes to write Letters-patents; and nam’d the Master thereof, CHANCELLOR: for it is evident, that Chancellors were in England before the Conquest.
How great the honour and authority of Chancellor is at this day, is so very well known, that I need not enlarge upon it: To shew how great it was formerly, I will subjoyn a word or two from an ancient Author. Robert Fitz-Stephens, who liv’d under Hen. 2. The dignity of the Chancellor of England, is this; to be reputed the second person in the Kingdom, and next to the King: with the † † Altera parte sigilli Regii.King’s seal (whereof he has the keeping) to seal his own Injunctions; to have the ordering of the King’s Chapel; to have the custody of all Archbishopricks, Bishopricks, Abbies, and Baronies, vacant and fallen into the King’s hands; to be present at the King’s Council, and to repair thither without summons; to seal all things by the hand of a Clerk who carries the King’s seal; and to have all matters dispos’d and order’d with his advice. Also, * * Ut suffragantibus ei per Dei gratiam vitæ meritis, non moriatur, nisi Archiepiscopus, vel Episcopus, si voluerit.that by the grace of God, leading a just and upright Life, he may (if he will himself) die Archbishop or Bishop: Whereupon it is, that the CHANCELLORSHIP is not to be bought.
The manner of making a Chancellor (to observe this by the way) was, in Henry the second’s time, by hanging the Great Seal about the neck of the person chosen to that office. But in Henry the sixth’s reign, the method was thus, as appears from the Records:Gualt. Mapes. Upon the death of the Chancellor of England, three great Seals, one of gold and the other two of silver, which were kept by the Chancellor, are, immediately after his decease, lock’d up in a wooden chest, and seal’d by the Lords present, and so convey’d into the Treasury. From thence they are brought to the King, who in the presence of the Nobility delivers the same into the hands of the succeeding Chancellor, (having taken an oath before him, that he will well and faithfully administer that Office;) first, the great silver seal, next that of gold, and lastly, the other of silver. After he has receiv’d them, he puts them into the chest again, and sends them home seal’d with his own seal; where, before certain of the Nobility, he causes the King’s Letters Patents and Writs to be seal’d with them. When a Chancellor is discharg’d, he delivers up the three seals into the King’s hands, in the presence of his Nobles; first, the seal of Gold, then the broad seal of silver, and next, the other silver one of a less size. At this day, only one seal is deliver’d to the Chancellor; nor is there any mention of these three seals, but in the reign of Henry the sixth. In process of time, much honour and authority was added to the office of Chancellor by several Acts of Parliament; especially, since all that rigour and strictness crept into the Common Law, and the Pleadings, by niceties to a word, became so ensnaring, that a Court of Equity was found necessary: and this was committed to the Chancellor, to judge according to the rules of Equity, and to moderate the rigour of justice, which is oft-times Oppression. There preside in this Court, the Lord Chancellor of England, and twelve Masters of Chancery, as Assessors, the chief whereof is the Keeper of the Rolls belonging to that Court, and thence call’d Magister Rotulorum, or Master of the Rolls. There † † Ann. 1607.are also many other Officers belonging to this Court; some concern’d about the Great-Seal, namely, the Clerk of the Crown, the Clerk of the Hannaper, A Sealer, A Chauff-wax, A Comptroller of the Hannaper, twenty four Cursitors, and a Clerk of the Subpœna-writs.Subpoena Others concerned in the Bills exhibited there; a Protonotary, the Six Clerks or Attorneys of the Court, and a Register. There are also the three Clerks of the petit bag, Clerk of the Presentations, Clerk of the Faculties, Clerk for examining Letters-Patents, Clerk for Dismissions, &c.
The Court of Requests. There † † Is, C.was another Court which sprung out of the King’s Privy-Council, call’d the Court of Requests, from the addresses of Petitioners deliver’d there; where private causes ¦ ¦ Are, C.were heard as in Chancery, if first presented to the King or his privy Council; and sometimes otherwise. In this Court, business † † Is, C.was administer’d by the Masters of the Requests, and a Clerk, or Register, with two or three Attorneys. As for those Councils ⌈which were heretofore⌉ held in the Marches of Wales, and in the North, I will treat of them, God willing, in their proper places.
Spiritual Courts. The Chief Spiritual Courts, are; The Synod, which is call’d the Convocation of the Clergy, and is always held at the same time with the Parliament; and the Provincial Synods, in each Province.
Court of Arches. After these, are the Courts of the Archbishop of Canterbury; namely, the Court of Arches; the Judge of which is the Dean of the Arches, so call’d from St. Mary’s Church in London, famous for its arch’d steeple. All Appeals within the Province of Canterbury are made to him; ⌈but this, not properly as Dean of the Arches, in virtue of which title, strictly speaking, he has Jurisdiction only over divers Peculiars in the City of London; but as he is also Official Principal to the Archbishop.⌉ There are in this Court * * Now, above twenty.sixteen Advocates, or more, as the Archbishop shall think fit, all of them Doctors of Law; with two Registers, and † † Ten, C.thirty-four Proctors ⌈or more, if the Archbishop pleases.⌉
Court of Audience. The Court of Audience, where all complaints, causes, and appeals of the Bishops of the Province, are receiv’d.
The Court of Prerogative. The Court of Prerogative; where a Commissary judges * * Hæreditatibus.of the Estates of Persons deceased, whether Intestate, or with Will.
The Court of Faculties. The Court of Faculties; manag’d by a * * Præfectus.Master who takes cognizance of the Requests of those who desire that the rigour and severity of the Canon-law may be moderated; and by a Register, to record such Dispensations as are granted.
The Court of Peculiars. As to the Court of Peculiars (which has jurisdiction in certain parishes exempt from the Bishop of the Biocese where they lye, and peculiarly belong to the Archbishop, with other things of less note) I omit them: For I confess it was imprudent in me, to dip at all in subjects of this nature; but Guicciardin encourag’d me in it, by doing the like in his description of the Netherlands.
I intended here to insert some few things, chiefly concerning the Antiquity of the great Officers of the Realm; the Chancellor (of whose Office we have already said somewhat) the Treasurer, the President of the Council, the Keeper of the Privy-Seal, the Lord Great Chamberlain, the Lord High Constable, the Earl Marshal, the Lord Steward of the King’s Houshold, &c. But since I hear, that this is design’d by other hands, I am so far from desiring to forestal them, that I shall most willingly impart to the Undertakers, whatever observations I have made upon those heads.
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