even though they had not been alleged by the parties*.

The different courts for the administration of justice, in England, are,

I. The Court of Common Pleas. It formerly made a part of the aula regis (the king's hall or court); but as the latter was bound by its institution always to follow the person of the king, and private individuals experienced great difficulties in obtaining relief from a court that was ambulatory, and always in motion, it was made one of the articles of the Great Charter, that the Court of Common Pleas should thenceforward be holden in a fixed placet; and since that time it has been seated at Westminster. It is composed of a lord chief justice, and three other judges; and appeals from its judgements, usually called writs of error, are brought before the Court of King's Bench.

II. The Court of Exchequer. It was originally established to determine those causes in which the king, or his servants, or accomptants, were concerned, and has gradually become open to all persons. The confining the power of this

* Unless they be private acts.

+ Communia placita non sequantur curiam nostram, sed teneantur in aliquo loco certo. Magna Charta, cap. 17.

court to the above class of persons is therefore now a mere fiction; only a man must, for form's sake, set forth in his declaration that he is debtor This court to the king, whether he be so or no. is composed of the chief baron of the Exchequer, and three other judges.

III. The Court of King's Bench forms that part of the Aula Regis which continued to subsist after the dismembering 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 cognisance, 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 judgements 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 judgements are passed upon them in those courts where the causes are depending.

CHAPTER X.

On the Law that is observed in England, in regard to Civil Matters.

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 seising, 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 dif

ferent 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 before-hand: 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, acknowleges the justice of such demand; and this supposition is very just and rational. However, the above-mentioned practice of securing before-hand 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

* A person against whom a judgement of this kind has been passed (which they call in France un jugement par défaut) may easily obtain relief; but as he now in his turn becomes in a manner the plaintiff, his deserting the cause, in this second stage of it, would leave him without remedy.

I

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.