these three common law courts were thus exercising their ingenuity to intrench upon each other’s jurisdiction, their pertinacious adherence to powers and technicalities, and their unwillingness, except in matters where the alleged prerogative of the crown was concerned, to do any thing not sanctioned by precedent, led them to refuse justice or relief to private suitors in many crying cases. Such cases still continued to be brought by petition before the king, and by him were referred to his chancellor, who in the earlier times was commonly his confessor, and who since the abolition of the office of chief justiciary had become the first official of the realm. Undertaking in these cases to prevent a failure of justice by rising above the narrow technicalities of the common law, and guided by the general principles of equity and good conscience, the chancellor gradually assumed a most important jurisdiction, which in civil matters ultimately raised his court to a rank and importance above that of all the others. With the advance indeed of wealth and civilization, appeals to chancery became more and more frequent; and if the common law courts had not altered their policy, and adopted upon many points equitable ideas, it seems probable that so far as civil suits were concerned, those courts would long since have been superseded altogether.18 What indeed of and the practice in the Equity Court entirely into the hands of lawyers bred in Westminster Hall, by whom equity itself was made subservient to precedent, and the whole procedure involved in forms and technicalities even more dilatory and expensive than those of the common law courts.
The same disinclination on the part of these common law courts to go beyond the strict limit of technical routine, led, with the progress of commerce and navigation, to the erection, in the time of Edward III., of the Admiralty Court, mainly for the trial of injuries and offences committed on the high seas, of which, on technical grounds, the courts of common law declined to take jurisdiction. After the foundation of English colonies,19 branches of this court, to which also was given an exchequer jurisdiction, were established in the colonies, and on that model have been formed our federal District Courts.
While the common law courts, through their preference of technicalities to justice, thus enabled the chancellors to assume a civil jurisdiction by which they themselves were completely overshadowed, driving the Parliament also to the necessity of creating, for both civil and criminal matters, a new Court of Admiralty,20 they gave at the same time the support of their acquiescence and silence to other innovations, prompted not by public convenience, but by the very spirit of tyranny.
In every reign, at least from the time of Henry VI. down to that of Charles I., torture to extort confessions from those charged with state crimes was practised under warrants from the Privy Council. In the year 1615, by the advice of Lord Bacon, then attorney general, the lustre of whose philosophical reputation is so sadly dimmed by the infamy of his professional career, torture of the most ruthless character was employed upon the person of Peacham, a clergyman between sixty and seventy years of age, to extort confessions which might be used against him in a trial for treason, as to his intentions in composing a manuscript sermon not preached nor shown to any body, but found on searching his study, some passages of which were regarded as treasonable, because they encouraged resistance to illegal taxes. Thirteen years afterwards, when it was proposed to torture Fenton, the assassin of Villiers, Duke of Buckingham, to extort from him a confession of his accomplices, the prisoner suggested that if tortured he might perhaps accuse Archbishop Laud himself. Upon this, some question arose as to the legality of torture; and the judges being called upon for their advice, thus at length driven to speak, delivered a unanimous opinion that the prisoner ought not to be tortured, because no such punishment was known or allowed by the English law; which English law, it now appeared, had for two hundred years been systematically disregarded under the eye and by the advice of judges and sworn lawyers, members of the Privy Council, and without any protest or interference on the part of the courts!
Another instance of similar acquiescence occurred in regard to the Court of Chivalry, which in the reign of Charles I. undertook to assume jurisdiction in the case of words spoken. Thus a citizen was ruinously fined by that court because, in an altercation with an insolent waterman, who wished to impose upon him, he deridingly called the swan on his badge a “goose.” The case was brought within the jurisdiction of the court, by showing that the waterman was an earl’s servant, and that the swan was the earl’s crest, the heavy fine being grounded on the alleged “dishonoring” by the citizen of this nobleman’s crest. A tailor, who had often very submissively asked payment of his bill from a customer of “gentle blood” whose pedigree was duly registered at the herald’s college, on a threat of personal violence for his importunity, was provoked into saying that “he was as good a man as his debtor.” For this offence, which was alleged to be a levelling attack upon the aristocracy, he was summoned before the earl marshal’s court, and mercifully dismissed with a reprimand —on releasing the debt!
No aid could be obtained from the common law courts against this scandalous usurpation, by which, without any trial by jury, enormous damages were given.21 Legal “comity” perhaps prevented any interference. Presently, however, the long Parliament met, and a single resolution of that body stopped forever this usurpation.
But while a scrupulous adherence to technicalities and to legal etiquette prevented the common law courts, on the one hand, from doing justice in private cases, and on the other from guarding the subject against official injuries and usurpations, they showed themselves, as the following biographies will prove, the ready and willing tools on all occasions of every executive usurpation. If the people of Great Britain and America are not at this moment slaves, most certainly, as the following biographies will prove, it is not courts nor lawyers that they have to thank for it.
How essential to liberty is the popular element in the administration of criminal law – how absolutely necessary is the restraint of a jury in criminal cases – was most abundantly proved by the proceedings of the English courts of Star Chamber and High Commission. The Court of Star Chamber, though of very ancient origin, derived its chief importance from statutes of Henry VII. and Henry VIII., by which it was invested with a discretionary authority to fine and imprison in all cases not provided for by existing laws, being thus erected, according to the boasts of Coke and Bacon, into a “court of criminal equity.” The Court of High Commission, whose jurisdiction was mainly limited to clergymen, was created by a statute of Elizabeth as the depository of the ecclesiastical authority as head of the church assumed after the reformation by the English sovereigns. Both these courts consisted of high officers of the crown, including judges and crown lawyers; and though not authorized to touch life or member, they became such instruments of tyranny as to make their abolition one of the first things done after the meeting of the Long Parliament. The only American parallel to these courts is to be found in the authority conferred by the fugitive act of 1850, upon certain commissioners of the Circuit Court of the United States, to seize and deliver over to slavery peaceable residents in their respective states, without a jury, and without appeal.
History is philosophy teaching by example. From what judges have attempted and have done in times past, and in England, we may draw some pretty shrewd conclusions as to what, if unchecked, they may attempt, and may do, in times present, and in America. Nor let any man say that the following pages present a collection of judicial portraits distorted and caricatured to serve an occasion. They have been borrowed, word for word, from the Lives of the Chief Justices and of the Chancellors of England, by Lord Campbell, himself a lawyer and a judge, and though a liberal-minded and free-spoken man, by no means without quite a sufficient share of the esprit du corps of the profession. Derived from such a source, not only may the facts stated in the following biographies be relied upon, but the expressions of opinion upon points of law are entitled to all the weight of high professional authority.
Nor let it be said that these biographies relate to ancient times, and can have no parallelism, or but little, to the present state of affairs among us here in America. The times which they include are the times of the struggle in Great Britain between the ideas of free government and attempts at the establishment
This history holds out to our state tribunals significant warnings as to the danger to which they are exposed on the part of the federal judges, especially those of the District Courts, who sitting singly on the bench, and with powers enormously and most dangerously extended by recent legislation, have from the unity and concentration of the one-man power, a great advantage over courts liable to be retarded in their action, if not reduced to imbecility by divisions among their members.
The appeal from the English colonial courts to the king in council – the appeal cases being heard and decided by a committee of the privy councillors learned in the law – is another remnant of the old system, in which the constitution of the ancient Aula Regis has been very accurately preserved.
Both these courts proceeded according to the forms of the civil law, and without a jury. But occasionally the court of equity directed questions of fact arising before it to be settled by jury trial, and by a statute of Henry VIII. the trial of all maritime felonies before the Admiralty Court was directed to be by jury.
Hyde, (afterwards Lord Clarendon,) himself a lawyer, by whom the usurpations of this court were brought to the notice of Parliament, stated that more damages had been given by the earl marshal in his days, for words of supposed defamation, of which the law took no notice, than by all the courts of Westminster Hall during a whole term.
