was the Court of Exchequer Chamber, composed at first of the Chancellor and the Treasurer, and later of the Chancellor alone, with the judges of the King's Bench and Common Pleas sitting as assessors. In the reign of Queen Elizabeth (1585) it was provided that a case could be carried from the Court of King's Bench to another Court of Exchequer Chamber, composed of the judges of the Common Pleas and Exchequer. Ultimately, in 1830, it was provided that from each of the three courts of original jurisdiction a case could be carried to a new Court of Exchequer Chamber, and the two older courts of that name were abolished. That court thus came to be composed of the judges of the three superior courts, but when a case was carried up from one of the courts the judges of the other two courts alone sat.1 From the Court of Exchequer Chamber the case could be carried to the House of Lords. Thus, there came to be an intermediate appellate court and a court of final appeal.

The House of Lords was the final appellate tribunal. Originally the theory seems to have been that Parliament, as the highest court of England, had power to correct errors in the judgments of any lower court, and that the Commons as well as the Lords were entitled to participate in the decision of cases in error. In practice, however, the appellate jurisdiction of Parliament. came to be exercised by the Lords alone in the later Middle Ages. But for centuries appeals were dealt with by the House of Lords in the same manner as any other matters coming before the House. As late as 1783, judgments of the Common Pleas and Kings Bench were reversed by a bare majority in a House composed almost entirely of bishops and lay peers. But it was finally established in 1844 that, as a convention of the English constitution, only the members of the House learned in the law are entitled to take part in the hearing of appeals. Accordingly the House of Lords, for judicial business, consisted of the Lord Chancellor and such ex-Lord Chancellors and other peers who held or had held high judicial office as chose to attend. In 1876, the House was increased by the creation of salaried peers for life, called Lords of Appeal in Ordinary, to assist the hereditary peers learned in the law. There are now seven such Lords of Appeal.3

The history of the development of the judicial system in England is the history of a contest between the King and the local authorities. Before the Norman Conquest there was a division of authority be

1 On the history of the Exchequer Chamber, see 1 Holdsworth, History of English Law (6th ed. 1938) 242-246; Radcliffe and Cross, The English Legal System (1937) 205-207.

2 See O'Connell v. The Queen, 11 Cl. & F. 155, 421-426 (H. L. 1844).

3 For a good short account of the appellate jurisdiction of the House of Lords, see Radcliffe and Cross, The English Legal System (1937) 209-214. For a fuller account, see 1 Holdsworth, History of English Law (6th ed. 1938) 351-394.

tween the local tribunals on the one hand and the King and his council of advisers which was called the Witan on the other. After the Norman Conquest it became the purpose of the Kings to extend the limits of the royal justice and to limit the power of the local authorities. The purpose of the Kings was to establish a strong centralized government and to carry out this purpose it was necessary to have strong central courts. If justice was to be administered by the royal courts, however, it was impracticable to compel suitors and witnesses to resort to the King's capital in order to obtain justice. England was much too large for that, particularly before the days of easy communication. How could the King have his centralized court and yet bring justice to every man's door? The problem was solved by the creation of courts which sat at the King's capital, and at the same time sending the judges of those courts and others bearing the royal commission at intervals on circuit throughout the realm.

1

It is of great importance that the student should understand the method by which in England the administration of justice by the royal courts was brought to every man's door. Each of the three superior courts of common law, the King's Bench, the Common Pleas, and the Exchequer, sat as a court at Westminster. The year was divided into four terms, the Hilary Term, the Easter Term, the Trinity Term, and the Michaelmas Term. Each of these terms lasted for only a few weeks. During these terms each of the courts sat on the bench, in banc. Before the court thus sitting were brought for its determination all questions arising in the course of an action, except such as arose at the trial. Thus, the full bench sitting at Westminster in term time determined questions as to the legal sufficiency of the pleadings, such as those which arose on a demurrer. It would also entertain motions for leave to amend the pleadings. The full bench of the court would also determine questions arising after the trial. It was the full bench which gave judgment on the verdict. It was to the full bench that the party against whom a verdict was given might apply for a new trial, on the ground that the judge had made improper rulings at the trial, or on the ground that opposing counsel had misconducted himself at the trial, or on the ground that a juror had been guilty of misconduct, or on the ground that the verdict of the jury was against the evidence, or on the ground of newly discovered evidence. The party against whom the verdict had been given might also make a motion before the full court in arrest of judgment, on the ground that the pleadings of the opposite party were insufficient in law, or he might move for judgment notwithstanding the verdict.2

1 See 3 Holdsworth, History of English Law (4th ed. 1935) 674-675, explaining the term system.

2 These procedures are briefly explained at pp. 20-22, infra. They will be studied in detail in this course.

As we have seen, each of the three superior courts of common law sat at Westminster only during four comparatively brief periods during the year. Between these terms of court there were periods of vacation. It was during the vacations that the trials of issues of fact arising in these courts were held. Except in a few cases where the trial was held before the full bench at Westminster in term time, the trials would be held before one or two judges in the various towns in England. For the purpose of conducting the trials, the judges of the superior courts and others commissioned by the King for the purpose would go on circuit. It was the function of the judges on circuit to try the issues of fact raised by the proceedings taken at Westminster. At common law the judges on circuit had no authority to determine questions as to the sufficiency of the pleadings, nor could they permit amendments of the pleadings. Such matters were within the province of the full bench sitting at Westminster in term time.

Most of the earlier English cases on procedure in actions at law which are included in this book are decisions of the full bench of one of the superior courts, the Common Pleas, the King's Bench, or the Exchequer. Occasionally a case has been carried up on writ of error to a higher court, to the Exchequer Chamber or to the House of Lords, and the decision of the upper court is given. Occasionally a decision made by a single judge at the trial is included. Such a decision is not ordinarily of great weight as a precedent, although some of them have had considerable influence on later cases, and such decisions for the most part have not found their way into printed reports.2

The Court of Chancery had jurisdiction over suits in equity as distinguished from actions at law. The growth and development of the jurisdiction of this court is one of the most interesting events in the juridical history of England. In the thirteenth century the common-law courts exercised powers which we now call equitable, but gradually this equity jurisdiction disappeared and the law administered by those courts became more rigid. This rigidity of the law frequently produced injustice, and to prevent this injustice it was necessary to apply to other tribunals. Such applications were made not infrequently to Parliament or to the King's Council. Petitions were frequently referred to the King's Chancellor, who was a clergyman, the keeper of the King's conscience, and a person who

1 For the history and details of the circuit system, see 1 Holdsworth, History of English Law (6th ed. 1938) 264-285.

2 For a good brief account of the reports of the English courts, see Veeder, "The English Reports, 1292-1865," 15 Harv. L. Rev. 1, 109 (1901).

3 It also had jurisdiction over petitions for justice addressed to the Crown, although involving only such questions as would normally be settled in an action at law.

4 This is considered more fully later. See Ch. XI, infra.

was supposed to be something of an authority on the requirements of justice. By the end of the reign of Henry V (1413-1422) the Court of Chancery had become an established court. At first little regard to precedent was had in this court, and each case was decided on its own merits. In the reign of Henry VIII (1509-1547) equity began to assume the shape of law. Gradually trained lawyers instead of clergymen were appointed to sit upon the wool-sack and to hold the great seal. The judicial business of the court was disposed of by the Chancellor himself or by his subordinate officer, the Master of the Rolls. The latter officer might make decrees but they were subject to be revised or modified by the Chancellor. In 1813 a Vice-Chancellor was created, and in 1841 provision was made for two additional Vice-Chancellors. In 1851 two Lords Justices of the Court of Appeal in Chancery were created. Thereafter the three Vice-Chancellors and the Master of the Rolls sat as equity judges of first instance, and from the decision of any of them there lay an appeal to the Court of Appeal in Chancery, with an ultimate appeal as before to the House of Lords.

It is to be noticed that the Court of Chancery had two functions, a judicial function and an administrative function. It was, as we have just seen, a court having jurisdiction over suits in equity. In addition, as will be seen later,2 it had authority to issue the original writs by which actions at law were brought in the three superior courts of common law. From it also issued writs of error, by which a case was carried from a court of law to a higher court. 2. The modern English courts. The judicial system of England was completely reorganized in 1875. Shortly before that time the conclusion had come to be generally accepted that the system of separate courts was unnecessarily cumbersome and that the court organization should be simplified by merging the courts into a single court, with a trial branch and an appellate branch. This complete merger was not, however, effected. By the Judicature Act, 1873,3 which went into effect in 1875, and by subsequent acts amending it,* a new system of court organization was established. The local courts were not wholly abolished, and the county courts were retained. Moreover, the House of Lords continued to be the highest court of appeal. The three superior courts of law, the Court of Common Pleas, the Court of King's Bench, the Court of Exchequer, and the Court of Chancery and the High Court of Admiralty and the Court of Probate, together with the Court of Exchequer Chamber, were merged into a single court called the Supreme Court of Judicature. That court was divided into a lower branch, called the High Court of

1 The history of the Court of Chancery is more fully considered later. See

Ch. XI, infra.

2 See pp. 73-74, infra.

3 36 & 37 Vict. c. 66.

The most important of these was 38 & 39 Vict. c. 77 (1875).

Justice, and an upper branch, called the Court of Appeal. The High Court of Justice is now divided into three divisions, namely the King's Bench Division, the Chancery Division, and the Probate, Divorce and Admiralty Division.1

The Court of Appeal in practice consists of the Master of the Rolls and five Lords Justices of Appeal. It ordinarily sits in two divisions of three judges each, and has general appellate jurisdiction.3 In the House of Lords appeals are now heard by at least three, and quite usually five, of the members who are eligible for such duty.* Those who are eligible comprise the Lord Chancellor, the Lords of Appeal in Ordinary, and peers who have held high judicial office. The highest court of appeal for the dominions and colonies is the Judicial Committee of the Privy Council.5

3. The federal courts of the United States. Provision is made in the Constitution of the United States for a system of federal courts. Article III of the Constitution provides in part as follows:

ARTICLE III. Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during Good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

SECTION 2. [1] The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under

1 For a time there was also a Common Pleas Division and an Exchequer Division. These were abolished in 1880.

2 The Lord Chancellor, the Lord Chief Justice of England, the President of the Probate, Divorce and Admiralty Division, and the Lords of Appeal in Ordinary are ex officio members of the Court of Appeal, but do not habitually sit.

3 The Court of Appeal has no jurisdiction over appeals in criminal cases. Prior to 1848, there was no appeal in criminal cases except for errors of law apparent on the record (ie., flaws in the indictment or form of verdict). In consequence, a practice grew up by which the trial judge reserved difficult questions of law for the consideration of his colleagues, and in 1848 a special court called the Court for Crown Cases Reserved was created to consider such reserved points. But it was not until 1907, when the Court of Criminal Appeal was created, that there was any appeal on questions of fact in criminal cases. The Court of Criminal Appeal consists of the Lord Chief Justice and the judges of the King's Bench Division, two usually sitting with the Lord Chief Justice. See 1 Holdsworth, History of English Law (6th ed. 1938) 212–218; Radcliffe and Cross, The English Legal System (1937) 335-337.

The House of Lords has only a limited jurisdiction in criminal appeals. 5 See 1 Holdsworth, History of English Law (6th ed. 1938) 516–525; Radcliffe and Cross, The English Legal System (1937) 343–349; Martin, "Sidelights on Practice before the Judicial Committee of the Privy Council," 5 Can. Bar Rev. 239 (1927).