Page:The American Cyclopædia (1879) Volume V.djvu/433

Rh may be observed, viz.: that in the earlier period a large discretion is exercised in judicial proceedings. Tho laws being few, cases will occur that are not provided for; and again, personal security being the chief object had in view, summary justice is naturally preferred to the more tardy form of proceeding which would be involved by a regard to the rules of evidence which in a more advanced stage of society are deemed essential; indeed, these rules are an after growth, and require a long experience and an intellectual habit to develop.—The Roman consuls were at first executive and judicial magistrates. The progress of the people in civilization was indicated by their demand of some check upon the arbitrary judgment of the consuls in their judicial capacity, which led to the compilation of the laws of the twelve tables; a still further advance was shown in the separation of the judicial from the consular office, and the appointment of the prætor. But although the Roman mind was eminently legal, it did not during the existence of the republic attain to a clear idea of the importance of a supervisory power for the correction of the errors of inferior tribunals. The assemblies of the people, both the centuriata and tributa, had indeed a judicial power, but it was exercised in the hearing of cases in the first instance, and those chiefly of persons charged with capital offences. But in civil causes there was not properly an appeal from the judgment of the praetor, or of the judges (or more properly juries) appointed by him. The nearest approach to it was the power exercised by the praetor in certain cases of setting aside the sentence of the judices for fraud, and so the assistance of the tribunes was sometimes invoked against the corrupt conduct of the prætor himself. Under the imperial government an appeal was allowed from all inferior judges to the emperor, which was in fact usually heard by a court composed of the chief officers of state and distinguished jurists. Even this court was not, however, strictly subject to the rules which are in modern times deemed essential to an appellate court. It not only decided cases brought before it by appeal from the final judgments of inferior tribunals, but would take original jurisdiction in many cases while they were pending before a subordinate court, and not merely make decisions (decreta) in such cases, but also give opinions (rescripta) to magistrates or private persons upon questions proposed by them.—In the constitution of judicial tribunals under modern European governments there has been a great advance beyond the Roman in all of the particulars which we have named above as appertaining to the administration of law. The separation of the judicial from executive functions has become gradually recognized as a political principle. In England it was asserted at an early period for the protection of personal freedom against royal power, but it was imperfectly carried into effect until within the last two

centuries, when the tenure of judicial office was made independent of the pleasure of the king. The clause of Magna Charta, Communia placita non sequentur curiam nostram, sed teneantur in aliquo loco, though seemingly intended for the mere convenience of suitors, by prescribing a certain place for the trial of their causes instead of compelling them to travel about with their witnesses wherever the aula regis held by the king in person might be, in reality had the effect of breaking up that court, and ultimately of establishing the several courts of common pleas, king's bench, and exchequer, presided over by justices appointed for that purpose. The king's bench alone, which retained jurisdiction of criminal cases, continued for some time afterward to be migratory, whence the common form of process returnable to that court was ubicumque fuerimus; and this prevailed after the court became fixed like the others at Westminster, and its itinerancy was but a mere legal fiction. But the judges of all these courts were appointed by the king, and could be removed by him at will; and this power of removal continued until by statute 13 William III. (1701) it was enacted that the commissions of the judges should be quamdiu se lene gesserint, instead of durante bene placito as formerly, and that they should be removable only upon an address of both houses of parliament. The chancellor alone, who presides over the department of equity, is subject to removal at the pleasure of the king, and his office is held entirely by a political tenure. The four courts of original and general jurisdiction have been the king's bench, common pleas, exchequer, and chancery. These may be considered the outgrowth of the common law, though, according to a popular mode of expression, chancery is distinguished from the other three, as if not of common law origin, but the equity administered in that court was chiefly indigenous. The ecclesiastical and admiralty courts, on the other hand, derive their mode of administering law from a foreign source, though the limit of their respective jurisdictions is prescribed by acts of parliament, or by long usage, which is supposed to be founded upon statute. The court of king's bench, in the distribution of judicial powers upon the breaking up of the ancient aula regis, retained, as we have mentioned, jurisdiction of criminal cases; but to this was added all that class of cases which, though in reality civil actions between private citizens, yet, as they involved an allegation of force (as in actions for trespass, where the act complained of was alleged to have been done vi et armis), were deemed quasi criminal. But notwithstanding this narrow limit of its cognizance of civil cases, it remained in one sense the highest court in the realm. It has always been the representative of the king's prerogative, has exercised authority over all other common law courts so far as to restrain them within their proper jurisdiction by writ of prohibition, and has always exercised summary