mandamus, to which no other return will be admitted, but a certificate of perfect obedience and due execution of the writ.

The English judge is not protected as regards the public at large, by any corporate constitution of the court. In states not endowed with liberty something may be said in favour of such corporate character of the judicial body, and especially that the weak are thereby safe guarded; it cannot be gainsaid, however, that at times the weak are wofully enough sheltered. In England, on the other hand, the judge acts singly in presence of the public, and such isolation insures the amplest security against arbitrary dealing. Whenever several judges determine a matter in common, the majority decides, but each individual judge gives the grounds of his judgment in the light of day.* In like manner when the law lords exercise their appellate jurisdiction, the common law judges deliver their opinion one after the other in open session; but sometimes present a joint opinion.† The opinion of the judges is only given at the request of the House of Lords, and by way of information.

The dignified manner of conducting law proceedings tends to create a deep impression. The judges do not sit in resplendent chambers; the localities which serve as law courts at Westminster have not an imposing aspect; but the rich official costume of the judges, and the wigs and gowns of the barristers are calculated to establish a salutary restraint between the judge, the parties interested, and the public. This outward dignity is ordinarily combined with great calm and gentleness on the part of the judge, and with an utter absence of all prejudice as against the accused in the conduct of the proceedings. Of browbeating on the part of the presiding judge and high-sounding invectives launched by the public prosecutor against the accused, there is in England no trace.‡

This has not always been the case, however, especially in times of political excitement and persecution. In the indictment against

*Bucher, Parlamentarismus. Ann. Reg., 1852, p. 369, Miller v. Salomons. + Vide the Bridgewater Case, Ann. Reg., 1853, p. 296.

Lord Campbell's address to the jury in Palmer's case:-"The case is now in your hands; and, unless upon the part of the prosecution a clear conviction has been brought to your minds of the guilt of the prisoner, it is your duty to acquit him. You are not to proceed, even upon

a strong suspicion; there must be the strongest conviction in your minds that he was guilty of this offence; and if there be any reasonable doubt remaining in your minds, you will give him the benefit of that doubt."-Ann. Reg., 1856, vol. xcviii., 526.

On Bernard's trial the Attorney-General said: "If there be any doubt with respect to the guilt of the accused, you must acquit him."-Ann. Reg., 1858, p. 318.

Sir Walter Raleigh, Sir Edward Coke began his speech for the prosecution with these words:-"Thou art the lowest and most abominable traitor that has ever lived; I am at a loss for words to mark out thy viper-like treason; I will prove that never a more detestable viper lived in the world than thou. Thou art a monster, thou hast an English face, but a Spanish heart; thou viper, I thou thee, thou traitor."* Coke behaved in the same way towards Essex. The cruel taunts with which Jeffreys harried his victims are but too well known.† Since the Revolution of 1688 prosecutors and judges alike have exhibited a becoming moderation. Somers, when solicitor-general in 1691, declared it unseemly that the representative of the Crown should strive to depict a crime as worse than it really was, and to paint it in a false light. In the first half of the 18th century, however, the judges appear not to have been very considerate towards people of the lower class, as is shown by Fielding, who has portrayed the manners of his century, and in regard to the condition of things in his own country has not indulged his inventive faculty.§

If we reflect upon the legal system in relation to the general well-being, we cannot too highly appreciate the protection extended to all primary, civil, political, and corporate rights, the courts being empowered to penetrate into every sphere of public law; neither "conflict of jurisdiction," nor special privileges accorded to individuals, can ever bar the way. The true limits of the judicature are constituted, in fact, by Parliament; where the two. powers come into collision, the judicature, as a rule, has mainly achieved the victory. Dwelling in the full centre of public life, the English judge is no mere pedantic bureaucrat, but in the fullest sense of the term, a magistrate of a great republic. Notwithstanding its defects, the criminal jurisprudence of England has shown itself ever the chief upholder of liberty. On two memorable occasions-the trial of the Bishops, and of Horne Tooketwelve good men and true, have rebuked reaction and despotism,

*State Trials.

+ D'Israeli, Curios. Lit., iii.

Macaulay, Hist. of Eng., vol. i.

"The itinerant Judge Page, addressing one accused of stealing a horse, thus expresses himself:- Well, you fellow, what have you to say? don't stand "humming and hawing," but speak out.' The fellow said he had found the horse.

'Ay,' answered the judge, thou art a lucky fellow, I have travelled the circuit these forty years, and never found a horse in my life; but I will tell thee what, friend, thou wast more lucky than thou didst know of, for thou didst not only find the horse, but a halter, too, I promise thee." "-Tom Jones.

uttering the warning voice-"Thus far shalt thou go, and no further."

The difficulties which surround the English Chancery Court will be treated of further on, but even the common law courts are not by any means in a position to secure a speedy and cheap administration of justice.

If we scrutinize the structure of the legal system in relation to the courts which administer the law, we find first of all, an antagonism prevailing between the common law courts, and those which decide, as the Court of Chancery, on other principles. The courts of the common law are chiefly the law courts of Westminster, the new county courts, the courts of the justices of the peace and town magistrates. The courts not deciding by the common law are the ecclesiastical courts, the admiralty court, military courts, and the courts of equity. The courts of the common law at Westminster exercise authority over courts of inferior jurisdiction, as the county courts. The courts of equity are subject to the appellate jurisdiction of the Lords.

The determination of a question of fact by means of a jury, and public and oral procedure, is common to all the courts of law. The other courts cannot summon a jury, but may require the courts of law to have matters of fact determined.*

The courts of law are further divided into courts of record, and not of record. A court of record is that where the acts and judicial proceedings are enrolled in parchment, which rolls are called the records of the court, and are of such high authority that their truth is not to be called in question. For it is a settled rule, that a party cannot be received to aver as error in fact, a matter contrary to the record. If the existence of a record be denied it shall be tried by nothing but itself, that is, upon bare inspection, whether there be any such record or no. Every court of record has authority to fine and imprison for contempt of its authority. Stringent enactments protect these records against any attempt at erasure. There are four superior courts of record-the Chancery Court, so far as it is a court of equity, and the three courts of law at Westminster. Since 1 and 2 Vict. c. 94, the Master of the Rolls is the keeper of the records.

By the 21 and 22 Vict. c. 27, the Court of Chancery is now empowered to cause damages to be assessed, or any

question of fact arising in any suit or proceeding, to be tried before the court itself with a jury.

CHAPTER II.

THE COURTS OF LAW AT WESTMINSTER.

Personal presence of the King in the Courts.-Curia Regis.—The Court of Exchequer.-Itinerant Judges.-Their Commissions.-Nisi Prius.-Queen's Bench. -Crown Side.-Plea Side.-Court of Common Pleas.-Court of Exchequer— Court of Exchequer Chamber-Court of Criminal Appeal.

ALL jurisdiction proceeds from the king. In contemplation of law he is present in all the courts, and, for several centuries, presided over them; it is, however, no longer practicable for sovereigns to give judgment in person. It is related of Edward IV., that he presided in the King's Bench for three days successively, though only with a view to learn.* James I. was informed by the judges that he had the right to preside in the court but not to express his opinion. Coke contends, that an actual intervention of the sovereign in the deliberation of the courts would be illegal. The chief court of the realm in Norman times was the Curia Regis, or Aula Regis, which was the supreme court of justice in the kingdom; it was likewise the groundwork of the English upper house. Of this court the sovereign himself was the judge, assisted by the grand justiciary of England, who, in his absence, acted as his deputy, and by the other great officers of state. By means of this court, which followed the king everywhere, he administered justice and matters relating to revenue.

The inconveniences of this system, although diminished by the appointment, in the reign of Henry II., of justices in eyre, were so great, that they occasioned the insertion of a clause in Magna Charta, "Communia placita non sequantur curiam nostram, sed teneantur in aliquo certo loco." The result of this clause was the erection of the " Court of Common" Pleas at Westminster. Common pleas, or suits between party and party in which the interests of the crown were not affected, instead of being carried † Bl. iii. 41. 2 Inst. 46.

*Dr. Henry, Hist. of Great Britain, vol. v., 382.

on wherever the Curia Regis happened to be, were determined in the Court of Common Pleas at Westminster. The Curia Regis still continued to follow the king's person, and to decide the causes in which the crown was interested. Edward I., styled "the English Justinian," recast the entire system of judicature. He left the Court of Common Pleas in possession of the civil business of the kingdom, consigned the exclusive management of revenue matters to the Court of Exchequer, while the remnant of the jurisdiction of the Aula Regis was entrusted to the King's Bench. Up to the 11 Geo. IV. and 1 Will. IV. c. 70, an appeal lay to the King's Bench by writ of error from the Courts of Common Pleas and Exchequer. By means of certain fictions, the Courts of King's Bench and Exchequer obtained a jurisdiction in actions between subject and subject, co-extensive with that of the Common Pleas. By the 2 Will. IV. c. 29 this jurisdiction was recognized and confirmed, while the fictions by which it had been obtained were abolished. From these courts of law the special jurisdiction of the chancellor, supplying and relieving against the common law, was detached, as a "court of equity." The three courts of law sit separately at the present day at Westminster. Each court formerly possessed four judges, but that number was increased to five, by 1 Will. IV. c. 70.

These fifteen judges are at the same time itinerant judges, and from the time of the Plantagenets, and for the public convenience, determine matters of civil procedure in the provinces. For this purpose England and Wales has been apportioned into eight circuits (the Home, Midland, Oxford, Norfolk, North Wales, South Wales, Western and Northern circuits); during the vacations preceding the Easter and Michaelmas sittings at Westminster, after Hilary and Trinity terms, the judges go their half-yearly circuits, two being usually appointed for each circuit. As London and Middlesex are in proximity to the common law courts, they are not included in the circuit division; one judge always remains in London. In Lancaster and York assizes are likewise held about Christmas. Every judge is accompanied by his marshal as private secretary.

The purpose of these circuits is to determine the causes of action which have arisen in the various counties, and to effect a delivery of the jails. So long as the justices in eyre are in any place, the authority of the local magistrates is suspended, as they