This court, as well as the Chancery, hath, properly speaking, two courts: one, ordinary, proceeding according to the strict rules of the common law; the other, by equity; for, as it is the king’s duty to render justice with mercy, so, in this court, the rights of the king are not always exacted with rigour; but, on circumstances of reason and equity, may be mitigated or discharged. The court of common law in this court had antiently much more business than of late. Originally, whilst the royal demesnes were unalienated, they had the setting of them for years; but, afterwards, people chusing rather the authority of the great seal, took them in Chancery. That court, as I mentioned when treating of it, had likewise gained the returns of inquisitions of office, and had also gained by act of parliament, the composition of forfeitures, for the king’s tenants in capite aliening their lands without license; which, otherwise, would have belonged to this court. The erection of the Court of Wards, also, by Henry the Eighth, took off that branch of its jurisdiction; and the abolishing of the military tenures by Charles the Second took away the business of calling in their fruits. The erecting the office of the Treasury, as distinct, for the issuing of money, had the same effect; but, above all, the erecting new jurisdictions, and appointing new judges to try causes relative to the new taxes, as the Commissioners of the Customs and Excise, and Commissioners of Appeal, diminished the peculiar business of the court[376].
It will be now proper to consider the nature and extent of their present jurisdiction. Here then are sworn the sheriffs, and other officers concerned in the king’s revenue and duties; and here they are to return, and make up their accounts. Here, likewise, the king sues his debtors, or even the debtor of his debtor (for so far his prerogative extends); and here also, for enabling his debtors to pay him, they are priviledged to sue their debtors; an allowance that hath grown up by degrees to extend the jurisdiction of this court, and to make it concurrent with the Common Pleas. For it is only alledging, (and this they will not allow to be traversed or denied) that the plaintiff is the king’s debtor, and the business is done. The court acquires an immediate jurisdiction. The same allegation is likewise necessary, when a suit of equity is commenced in this court; for otherwise, the suit would, on the face of it, appear to belong to Chancery. I need scarce observe, that the officers of this court are to sue and be sued here; for that is a privilege common to the officers of all the courts, arising from their personal attendance. Here, likewise, the king’s attorney-general exhibits informations for concealment of customs and seizures, informations upon penal statutes, where there is a fine due to the king, forfeitures and breach of covenant to the king; likewise all informations for intrusions, wastes, spoils or encroachments on the king’s lands; in general, where the crown suffers in its profits.
In this court of common law, the Barons of Exchequer only are judges, and are called Barons, because antiently none were judges there under that degree. In the Court of Equity, the chancellor of the Exchequer is joined with them, though it must be owned this officer hath seldom, of late years, acted either in England or Ireland, in his judicial capacity, and it hath been considered little more than as a great lucrative place. Errors in this court are not, as I observed before, redressed in the King’s Bench, as those of the Common Pleas are, but in another court, called the Exchequer Chamber, consisting of the lord chancellor, lord treasurer, and chief judges.
There is another court of Exchequer Chamber in England, tho’ we have none such in this kingdom, erected 27th Eliz. and composed of the judges of the Common Pleas and barons of the Exchequer, in which lies a writ of error from the King’s Bench, to reverse judgments in certain suits commenced there originally. Into this court are frequently removed, or adjourned from any of the other courts, causes that are of a new impression, and attended with difficulty, or even such concerning which the judges, perhaps, entertain no great doubts, but are new, and attended with extensive consequences; and this, for the more solemn determination, that all the judges of all the courts might be consulted about establishing a new precedent. Antiently such causes were adjourned into parliament, but the legislative business of that high court increasing, this court was substituted for the above purpose of consultation[377].
To finish this account concerning the superior courts at once, it will be proper to say something of the supreme judicature of all, that of parliament. Antiently, as I have frequently observed, all causes but such as concerned the king or peers, or those that were of great difficulty, or such as justice could not be expected in by law, were dispatched in the county courts, the rest by petition to the king in parliament, or, in the intervals thereof, in the curia regis, which originally was but a committee thereof, appointed by the king. Hence matters determined there, were subject to a review in parliament; writs of error from the King’s Bench returned there; and when the Equity courts grew up, appeals from the Chancery and Exchequer in matters of equity. This power of judicature is peculiar to the lords (for the parliament consisted at first only of them, and when the commons were introduced, they sat in a distinct house) and the parliament hears at present only matters that come from other courts by appeal, or by writ of error, which is in the nature of an appeal, and no causes originally. It is true, that, for a long time after the division of the courts, many causes by petition were brought into parliament in the first instance; but these being generally referred to the courts below, the practice ceased, and would not now be allowed. For a long time accusations against peers were originally admitted, but at present, and for this long time, indictments found below are required before a peer can be tried; nor can the trial of peers by impeachment in parliament be considered as an original trial, for the commons are considered as the grand inquest or grand jury of the whole nation, and therefore an impeachment by them is not only equivalent to, but has and ought to have greater weight than any indictment by any private grand jury.
In this judicature of the lords, an impeachment there, is one singularity, an exception to the grand rule, that every man is to be tried by his peers, and that is, that a commoner impeached by the commons shall be tried by the lords. The reason of this procedure seems to be, that all the commons of England are supposed parties to the accusation, when their representatives have accused him, and it might be dangerous to trust his life with a common jury; but the lords are strangers to the charge, and it is their interest to controul the commons, if they proceed with too great violence[378].