Page:Borden v. State ex rel. Robinson.pdf/17

Rh the repositories of the same judicial powers that had been before in the King and were to return to him again in his political capacity whenever their coimnission might come to an end. But after the establishment of inferior courts with limited and special jurisdiction closed to appellate review otherwise than through the powers of superintendency aud control assumed by King's Bench, and the rule had been adopted as to all such courts to restrict their action within the express and explicit letter of their privileges, (3 Black. Com. conclusion of 6th chap. p. 85) a foundation was laid for such an idea as to the sentences of these courts, such an idea being a consequence of such a rule as to the action of these courts: because the rule itself was based upon the notion that the judicial powers of these courts derogated from the powers of the common law courts, not only of those at Westminster, but of all others that were open to the appellate powers of these, and their powers were therefore in their essence limited powers.

But nevertheless there was no ground for any such idea as to all these other courts of record, although some of them were limited in their jurisdiction like these inferior courts to particular subjects, persons or places; because, although thus limited in their jurisdiction the judicial powers invested in them were not limited powers, but were of the same class of those with which the courts at Westminster were invested.

Now in order that the rules of which we are in search may be traced to a reasonable source and thus be authenticated, upon principle as well as by authority, to be fixed rules of the common law, let it be assumed that the brief expose just given of the character of the powers invested in these two classes of courts, is correct. That is to say, that the powers invested in the superior courts were general powers and those vested in the inferior courts limited powers. And the consequence would be, as to the former, that there could be no defect of power so long as judicial action was confined to a subject within the jurisdiction of one of these courts, and consequently the functionary could never be a trespasser, however contrary to law might be