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by reason of the defendant's conduct; and this, though in ninetynine cases out of a hundred, a mere fiction, was not allowed to be contradicted, and was held to render the cause of action a matter affecting the revenue, so as to invest the exchequer with a jurisdiction over it; thus did the Courts of Queen's Bench and Exchequer obtain a jurisdiction co-extensive with that of the Common Pleas in actions personal; a jurisdiction which the Uniformity of Process Act now recognises and confirms, while it abolishes the fictions by which it was acquired. . .

Such being a slight history of the superior courts, the subject next to be inquired into is their present constitution. The first objects. which engage our attention while occupied on this part of the subject are the Judges, of whom there are in each court five, in the Queen's Bench and Common Pleas a chief justice created by writ and four puisne judges created by patent. In the Exchequer, a chief baron and four puisne barons created by patent. The number, which often varied, was in each Court for a long time four, but was increased to five by Stat. 1 Wm. 4, c. 70.


The Judicature Acts. The first Judicature Act was passed in 1873, and came into operation in 1875. By virtue of its provisions (as modified by later Acts) the Court of Chancery, the Courts of King's Bench, Common Pleas, and Exchequer, the Court of Admiralty, the Court of Probate, the Divorce Court, and the London Court of Bankruptcy were consolidated, and formed into one Supreme Court of Judicature in England.

The Supreme Court of Judicature was then divided into two parts. (1) the High Court of Justice, (2) the Court of Appeal. Both these branches of the Supreme Court were constituted superior courts of record. The clause of the Act of Settlement relating to the judges' tenure of office was reinacted, and they were incapacitated from sitting in the House of Commons. It was provided that the judges of the High Court and the Court of Appeal respectively should, without prejudice to existing rights, have similar privileges and be subject to similar duties.

(i) The High Court of Justice.

The existing judges of the Court of Chancery, the Courts of Common Law, the Probate and Divorce Court, and the Court of Admiralty were constituted judges of the High Court. But it was provided that the Chancellor of the Exchequer, and the Lord High

Treasurer should no longer have the judicial powers which they might formerly have exercised in the Court of Exchequer. For the future any barrister of ten years' standing was qualified to be appointed judge in the Court. The style of the judges is "Justices of the High Court."

To the High Court was assigned the jurisdiction exercised by the following courts:

(1) The High Court of Chancery as a common law court as well as a court of Equity, including the jurisdiction of the Master of the Rolls as a judge or master of the Court of Chancery, and any jurisdiction exercised by him in relation to the court of Chancery as a common law court;

(2) The Court of King's Bench;

(3) The Court of Common Pleas at Westminster;

(4) The Court of Exchequer as a court of Revenue as well as a common law court;

(5) The High Court of Admiralty;

(6) The Court of Probate;

(7) The Court for Divorce and Matrimonial Causes.

It was provided that, for the convenience of business (but not so as to prevent any Judge of the Court from sitting wherever required) the High Court should be divided into the following divisions:

(1) The Chancery Division.

To this division was assigned (1) all causes and matters which by any act of Parliament were assigned to the court of Chancery; (2) the administration of the estates of deceased persons; (3) the dissolution of partnerships or the taking of partnership or other accounts; (4) the redemption or foreclosure of mortgages; (5) the raising of portions or other charges on land; (6) the sale and distribution of the proceeds of property subject to any lien or charge; (7) the execution of trusts charitable or private; (8) the rectification or setting aside, or cancellation of deeds or other written. instruments; (9) the specific performance of contracts between vendors and purchasers of real estates, including contracts for leases; (10) the petition for sale of real estates; (II) the wardship of infants, and the care of infants' estates.

(2) The King's Bench Division. (3) The Common Pleas Division.

(4) The Exchequer Division.

To these divisions was assigned the jurisdiction which would have belonged to these courts before the passing of the Act.

In pursuance of a statutory power given to the crown, these divisions were in 1881 merged in the King's Bench Division. The powers which belonged to the respective presidents of these Divisions were vested in the Lord Chief Justice of the King's Bench, who had, by a previous act, been given the title of the Lord Chief Justice of England.

(5) The Probate Divorce and Admiralty Division.

(ii) The Court of Appeal.

The following persons are declared to be ex officio members of the Court:-The Lord Chancellor, the Master of the Rolls, the Lord Chief Justice of England, the President of the Probate, Divorce, and Admiralty Division, and any person who has held the office of Lord Chancellor, if, on the request of the Lord Chancellor, he consents to act. The crown is empowered to create not more than five ordinary judges of the Court of Appeal. Persons qualified to be so appointed are barristers of not less than ten years' standing, persons qualified to be appointed Lords Justices of Appeal in Chancery, or persons who have held the office of Judge of the High Court for not less than one year. They are to be styled Lords Justices of Appeal.

The following jurisdiction was given to the Court of Appeal: (1) The jurisdiction and powers of the Lord Chancellor and Court of Appeal in Chancery, both as a court of equity and as a court of appeal in bankruptcy.

(2) The jurisdiction and powers of the court of Exchequer Chamber: together with jurisdiction to hear applications for a new trial or to set aside a verdict or judgment in the High Court.

(3) The jurisdiction of the Privy Council in respect of Admiralty and Lunacy Appeals.

The Appellate Jurisdiction Act was passed in 1876. That act recognised and reformed the Appellate jurisdiction of the House of Lords. It also provided a scheme by which the House of Lords and the Judicial Committee of the Privy Council the two highest courts of appeal in the British dominions-will eventually be, for the most part, composed of the same official members.

In order to increase the judicial strength of the Court it was provided that the Crown might appoint two persons to act as Lords of Appeal in Ordinary. They take rank and sit and vote as Barons. during their life. They hold their offices on the same terms as the other judges. Any barrister in England or Ireland, or any advocate in Scotland of fifteen years' standing, or any person who has held high judicial office for two years, is eligible for this office. In the hearing of Admiralty appeals the House may require the assistance of nautical assessors.

The House can not hear any appeal unless not less than three of the following persons are present:-The Lord Chancellor, the Lords of Appeal in Ordinary, or such peers of Parliament as are holding or have held high judicial office. The House may sit to hear appeals during a prorogation, and, if the Crown by sign manual warrant so direct, during a dissolution of Parliament.

Appeals lie to the House of Lords from the Court of Appeal in England, and from any court in Scotland or Ireland from which error or appeal lay to the House of Lords immediately before the passing of the Appellate Jurisdiction Act.

(d) The Custom of the Realm.


This unwritten or common law, is properly distinguishable into three kinds: 1. General customs; which are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual signification. 2. Particular customs; which, for the most part affect only the inhabitants of particular districts. 3. Certain particular laws; which, by custom, are adopted and used by some particular courts, of pretty general and extensive jurisdiction.

I. As to general customs, or the common law properly so called; this is that law, by which proceedings and determinations in the king's ordinary courts of justice are guided and directed. This, for the most part, settles the course by which lands descend by inheritance; the manner and form of acquiring and transferring property; the solemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences, with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. Thus, for ex

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ample, that there shall be four superior courts of record, the Chancery, the King's Bench, the Common Pleas, and the Exchequer;— that property may be acquired and transferred by writing;-that a deed is of no validity unless sealed and delivered;-that wills shall be construed more favorably, and deeds more strictly ;—that money lent upon bond is recoverable by action of debt;-that breaking the public peace is an offence, and punishable by fine and imprisonment; all these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law for their support.

Some have divided the common law into two principal grounds or foundations: 1. Established customs; such as that, where there are three brothers, the eldest brother shall be heir to the second, in exclusion of the youngest: and 2. Established rules and maxims: as, "that the king can do no wrong," "that no man shall be bound to accuse himself," and the like. But I take these to be one and the same thing. For the authority of the maxims rests entirely upon general reception and usage; and the only method of proving that this or that maxim is a rule of the common law, is by showing that it hath been always the custom to observe it.

But here a very natural, and very material, question arises: how are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositaries of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. The knowledge of that law is derived from experience and study; from the "viginti annorum lucubrationes," which Fortescue mentions; and from being long personally accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions. are the principal and most authoritative evidence, that can be given of the existence of such a custom as shall form a part of the common law. The judgment itself, and all proceedings previous thereto, are carefully registered and preserved, under the name of records in public repositories set apart for that particular purpose; and to them frequent recourse is had, when any critical question arises, in the determination of which former precedents may give light or assistance.

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