Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/769

 20. VEEDER: A CENTURY OF JUDICATURE 755 tance. The appellate jurisdiction is almost entirely a crea- tion of the nineteenth century. This late development may be explained in part, so far at least as the common law juris- diction is concerned, by the efficiency of the trial courts. The three great common law courts in banc administered the system then in force as well as any court could administer it. It was not until the breakdown of the common law courts in banc that more liberal rights of appeal became necessary. Moreover, the House could at all times avail itself of the advice of the common law judges. This advice, it is true, they were not bound to follow, but, in fact, it was seldom overridden. In chancery, until the creation of the Court of Appeal in Chancery, the situation was not so satisfactory. The chancellor sat alone on appeal from the vice-chancellor and from the master of the rolls (often his superiors in tech- nical learning) ; and there was usually small satisfaction in pursuing an appeal to the House of Lords, because, owing to the defective organization of that tribunal, there, too, the chancellor usually dominated. The advice of the chancery judges was not available, because the House had no author- ity to summon them unless, as rarely happened, they were also peers. A Court of Exchequer Chamber existed from the earliest times, both as a court of error and a court of debate. As a court for debate it consisted of the assembled judges, pre- sided over by the lord chancellor, where matters of impor- tance and difficulty were discussed before judgment was ren- dered in the court below (e. g. Calvin's case).* By 31 Edw. III., c. 12, it was constituted a court of error from the com.- mon law side of the Exchequer, and in it sat the Lord Chan- cellor, the Lord High Treasurer and the judges of the other courts. In 1585 another court was created to take error they were consulted by the king. These consultations were frequent in early times. The judges were consulted by Richard II as to his kingly power; by Henry VII as to whether the devolution of the crown upon him purged him of his attainder by Richard III; by Henry VIII as to whether on a bill of attainder a person need be heard in his own defence. The practice became so common that in 1591 the assembled judges volunteered some good advice on the subject of illegal commitments.
 * It was in the Exchequer Chamber that the judges assembled when