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the Jewish republic by Moses. In Mexico each town and province had its proper judges, who heard and decided causes, except when the point in litigation was too intricate for their determination; and then it was remitted to the supreme court of the empire, established in the capital, and consisting of twelve judges.(a) Peru, according to Garcilasso de Vega, (an historian descended from the antient Incas of that country,) was divided into small districts containing ten families each, all registered and under one magistrate, who had authority to decide little differences and punish petty crimes. Five of these composed a higher class, of fifty families; and two of these last composed another, called a hundred. Ten hundreds constituted the largest division, consisting of a thousand families; and each division had its separate judge or magistrate, with a proper degree of subordination.(b) In like manner, we read of Moses, that, finding the sole administration of justice too heavy for him, he “chose able men out of all Israel, such as feared God, men of truth, hating covetousness: and made them heads over the people, rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens; and they judged the people at all seasons: the hard causes they brought unto Moses; but every small matter they judged themselves."(c) These inferior courts, at least the name and form of them, still continue in our legal constitution; but as the superior courts of record have in practice obtained a concurrent original jurisdiction with these; and as there is, besides, a power of removing plaints or actions thither from all the inferior jurisdictions; upon these accounts (amongst others) it has happened
that *these petty tribunals have fallen into decay, and almost into obli
vion; whether for the better or the worse, may be matter of some speculation, when we consider on the one hand the increase of expense and delay, and on the other the more able and impartial decision, that follow from this change of jurisdiction.
The order I shall observe in discoursing on these several courts, constituted for the redress of civil injuries, (for with those of a jurisdiction merely criminal I shall not at present concern myself,) will be by beginning with the lowest, and those whose jurisdiction, though public and generally dispersed throughout the kingdom, is yet (with regard to each particular court) confined to very narrow limits; and so ascending gradually to those of the most extensive and transcendent power.
1. The lowest, and at the same time the most expeditious, court of justice known to the law of England, is the court of piepoudre, curia pedis pulverizati; so called from the dusty feet of the suitors; or, according to Sir Edward Coke,(d) because justice is there done as speedily as dust can fall from the foot; upon the same principle that justice among the Jews was administered in the gate of the city,(e) that the proceedings might be the more speedy as well as public. But the etymology given us by a learned modern writer(s) is much more ingenious and satisfactory; it being derived, according to him, from pied puldreaus, (a pedler, in old French,) and therefore signifying the court of such petty chapmen as resort to fairs or markets. It is a court of record, incident to every fair and market, of which the steward of him who owns or has the toll of the market is the judge; and its jurisdiction extends to administer justice for all commercial injuries done in that very fair or market, and not in any preceding one. So that the injury must be done, complained of, heard, and determined within the compass of one and the same day, unless the fair continues longer. The
court hath cognizance of *all matters of contract that can possibly arise
within the precinct of that fair or market; and the plaintiff must make oath that the cause of action arose there.(9) From this court a writ of error lies, in the nature of an appeal, to the courts at Westminster;(h) which are now also bound by the statute 19 Geo. III. c. 70 to issue writs of execution, in aid of its process after judgment, where the person or effects of the defendant are not within the limits of this inferior jurisdiction; which may possibly occasion
(a) Mod. Un. IIist. xxxviii. 469.
Ibid. xxxix. 14. (©Exod. xvii.
(4) 4 Inst. 272.
(e) Ruth iv.
Barrington's Observat. on the stat. 337 (Stat. 17 Edw. IV. c. 2. (*) Cro. Eliz. 773.
the revival of the practice and proceedings in these courts, which are now in a manner forgotten. The reason of their original institution seems to have been to do justice expeditiously among the variety of persons that resort from dis. tant places to a fair or market; since it is probable that no other inferior court might be able to serve its process, or execute its judgments, on both, or perhaps either, of the parties; and therefore, unless this court had been erected, the complainant must necessarily have resorted, even in the first instance, to some superior judicature.
II. The court-baron is a court incident to every manor in the kingdom, to be holden by the steward within the said manor. This court-baron is of two natures: (1) the one is a customary court, of which we formerly spoke,(h) appertaining entirely to the copyholders, in which their estates are transferred by surrender and admittance, and other matters transacted relative to their tenures only. The other, of which we now speak, is a court of common law, and it is the court of the barons, by which name the freeholders were sometimes antiently called : for that it is held before the freeholders who owe suit and service to the manor, the steward being rather the registrar than the judge. These courts, though in their nature distinct, are frequently confounded together. The court we are now considering, viz., the freeholders' court, was composed of the lord's tenants, who were the pares of each other, and were bound by their feodal tenure to assist their lord in the dispensation of domestic justice. This was formerly held every three weeks; and its most important business is to determine, by writ of right, all controversies relating to the right of lands within the manor.? It may also hold plea of any personal actions of debt, trespass on the case, or the like, where the debt or damages do not *amount to forty shillings;() which is the same sum, or three marks, that
[*31 bounded the jurisdiction of the antient Gothic courts in their lowest instance, or fierding-courts, so called because four were instituted within every superior district or hundred.(m) But the proceedings on a writ of right may be removed into the county-court by a precept from the sheriff called a tolt,(n) “quia tollit atque eximit causam e curia baronum.”(0) And the proceedings in all other actions may be removed into the superior courts by the king's writs of pone,(P) or accedas ad curiam, according to the nature of the suit. (©). After judgment given, a writ also of false judgment(r) lies to the courts at Westminster to rehear and review the cause, and not a writ of error; for this is not a court of record : and therefore, in soine of these writs of removal, the first direction given is to cause the plaint to be recorded, recordari facias loquelam.
III. A hundred-court is only a larger court-baron, being held for all the inhabitants of a particular hundred instead of a manor. The free suitors are here also the judges, and the steward the registrar, as in the case of a courtbaron. It is likewise no court of record; resembling the former in all points, except that in point of territory it is of greater jurisdiction.(s) This is said by Sir Edward Coke to have been derived out of the county-court for the ease of the people, that they might have justice done to them at their own doors, without any charge or loss of time ;(t) but its institution was probably coeval with that of hundreds themselves, which were formerly observed(u) to have been introduced, though not invented, by Alfred, being derived from the polity
(P) See Append. No. I. 83.
.N. B. 4, 70. Finch, L. 444, 44
() 3 Rep. pref. * All the freeholders of the king were called barons; but the editor is not aware that it appears from any authority that this word was ever applied to those who held freeholds of a subject. See an account of the ancient barons, ante, I book, 399, n. 5. It seems to be the more obvious explanation of the court-baron that it was the court of the baron or lord of the manor, to which his freeholders owed suit and service. In like manner, we say the king's court and the sheriff's court.-CuristiAN.
? The writ of right having been abolished, (3 & 4 W. IV.c. 27, s. 36,) this branch of its jurisdiction no longer exists.-KERR.
Co. Litt. 58.
of the antient Germans. The centeni, we may remember, were the principal inhabitants of a district composed of different villages, originally in number a
hundred, but afterwards only *called by that name ;(V) and who probably *35]
gave the same denomination to the district out of which they were chosen. Cæsar speaks positively of the judicial power exercised in their hundred-courts and courts-baron. “ Principes regionum atque pagorum” (wbich we may fairly construe, the lords of hundreds and manors) « inter suos jus dicunt, controversiasque minuunt.”(w) And Tacitus, who had examined their constitution still more attentively, informs us not only of the authority of the lords, but that of the centeni, the hundredors, or jury; who were taken out of the common freeholders, and had themselves à share in the determination. “ Eliguntur in conciliis et principes, qui jura per pagos ricosque reddunt: centeni singulis, ex plebe comites, consilium simul et auctoritas, absunt." (2) This hundredcourt was denominated hæreda in the Gothic constitution.(y) But this court, as causes are equally liable to removal from hence, as from the common courtbaron, and by the same writs, and may also be reviewed by writ of false judg. ment, is therefore fallen into equal disuse with regard to the trial of actions.
IV. The county-courtt is a court incident to the jurisdiction of the sheriff. It is not a court of record, but may hold pleas of debt or damages under the value of forty shillings.(z) Over some of which causes these inferior courts have, by the express words of the statute of Gloucester,(a) a jurisdiction totally exclusive of the king's superior courts. For in order to be entitled to sue an action of trespass for goods before the king's justiciars, the plaintiff is directed to make affidavit that the cause of action does really and bona fide amount to 40s.; which affidavit is now unaccountably disused, except in the
(*) Centeni er singulis pagis sunt, idque ipsum inter suos (v) Stiernhook, l. 1, c. 2. vocantur, e, quod primo numeris fuit, jum nomen et honor
(9) 2 Inst. 391. 3 T. R. 363. Bac. Abr. Court of King's (*) De Morib. Germ. c. 13.
Bench, A. 2.
est. Tac. de Mor. Germ, c. 6.
De Bell. Gall. l. 6, c. 22.
(*) 4 Inst. 266.
3 The courts-baron and hundred-courts have long been entirely obsolete as courts of civil jurisdiction; and the statute 9 & 10 Vict. c. 95 has accordingly empowered the lords of any hundred, or of any honour, manor, or liberty having any court in right thereof in which debts or demands may be recovered, to surrender the right of holding such courts to the crown, after which surrender the right of holding such courts is to cease and determine.-KERR.
* As to the county-court in general, see Com. Dig. County-Courts, B. 3. Bac. Abr. Court, County-Court. Vin. Abr. Court, County, 7 vol. 5. 4 Inst. 266. No action can be brought in the county-court, unless the cause of action arose, and the defendant reside, within the county; and if that be not the case, the action may be brought in the superior court, although for a sum less than 40s.; for if no action can be brought in the inferior jurisdiction for so small a debt, the plaintiff is not therefore to lose it. Per Lord Kenyon, 6 T. R. 175. 8 T. R. 235. i Bos. & P. 75. 1 Dowl. & R. 359. So if the contract be made on the high seas, as for wages, it cannot be recovered in the county-court. 1 B. & A. 223. But the non-residence of the plaintiff within the jurisdiction constitutes no objection at common law to his proceeding in the county-court, (1 East, 352;) though in some local courts of request, constituted by particular statutes, both plaintiff and defendant must reside within the jurisdiction. 8 T. R. 236. This court has no jurisdiction over trespasses luid to have been committed vi et armis
, (per Lord Kenyon, 3 T. R. 38;) because the county-court, not being a court of record, cannot fine the defendant. Com. Dig. County C. 8. But it is said to be otherwise when the proceedings are by justicies. Com. Dig. County C. 5. The writ of justicies does not, however, except in this instance and as respects the amount of the debt, enlarge the sheriff's jurisdiction. 1 Lev. 253. Vin. Abr. Court, County, D., a. 2, pl. 6. An entire debt exceeding 40s. cannot be split, so as to be sued for in this court; nor can the creditor falsely acknowledge satisfaction of a part so as to proceed for the rest. 2 Inst. 312. Palm. 564. Com. Dig. County C. 8. 2 Roll. a. 317, pl. 1. But where the debt has really been reduced by payments under 40s., it may be recovered in this court. Com. Dig. County C. 8. Seel B. & P. 223, 224. No capias against the person can issue out of this court, (Com. Dig. County C. 9;) and therefore if the defendant has no goods the plaintiff'is without remedy there; but an action may at common law be brought in the superior courts on a judgment obtained in the county-court, and thus, ultimately, execution against the person may bo obtained. Greenwood on Courts, 22. Finch, 318. F. N. B. 152.—Chitty.
court of exchequer. The statute also 43 Eliz. c. 6, which gives the juages in many personal actions, where the jury assess less damages than 108., a power to certify the same and *abridge the plaintiff of his full costs, was also meant to prevent vexation by litigious plaintiffs; who for purposes of
[*36 mere oppression might be inclinable to institute suits in the superior courts for injuries of a trifling value. The county-court may also hold plea of many real actions, and of all personal actions to any amount, by virtue of a special writ called a justicies; which is a writ empowering the sheriff for the sake of despatch to do the same justice in his county-court, as might otherwise be bad at Westminster.(c) The freeholders of the county are the real judges in this court, and the sheriff is the ministerial officer. The great conflux of freeholders which are supposed always to attend at the county-court (which Spelman calls forum plebeic justicie et theatrum comitivæ potestatis)(d) is the reason why all acts of parliament at the end of every session were wont to be there published by the sheriff; why all outlawries of absconding offenders are there proclaimed; and why all popular elections which the freeholders are to make, as formerly of sheriffs and conservators of the peace, and still of coroners, verderors, and knights of the shire, must ever be made in pleno comitatu, or in full countycourt. By the statute 2 Edw. VI. c. 25, no county-court shall be adjourned longer than for one month, consisting of twenty-eight days. And this was also the antient usage, as appears from the laws of king Edward the elder;(e) "præpositus (that is, the sheriff') ad quartam circiter septimanam frequentem populi roncionem celebrato : cuique jus dicito; litesque singulas dirimito.” In those times the county-court was a court of great dignity and splendour, the bishop and the ealdorman, (or earl) with the principal men of the shire, sitting therein to administer justice both in lay and ecclesiastical causes. (f) But its dignity was much impaired when the bishop was prohibited and the earl neglected to attend it. And, in modern times, as proceedings are removable from hence into the king's superior courts, by writ of pone or recordari,g) in the same manner as from *hundred-courts and courts-baron; and as the same
[37 writ of false judgment may be had, in nature of a writ of error; this has occasioned the same disuse of bringing actions therein. () Finch, 318. F. N. B. 152.
() LL. Eidgari, c. 5.
( F. N. B. 70. Finch, 445. OC. 11.
GL 88. v. comitatus.
And in any of the superior courts, when the debt sued for appears on the face of the declaration, (3 Burr. 1592,) or is admitted by the plaintiff or his attorney, (2 Bla. Rep. 754,) or proved by an affidavit of the defendant, (4 T. R. 495. 5 id. 6t. Tidd. Prac. 8 ed. 565,) to be under 40s., and the plaintiff may recover it in an inferior jurisdiction, they will stay the proceedings, it being below their dignity to proceed in such action. But the plaintiff may by affidavit show that the debt exceeds 40s., or that the defendant resided out of the jurisdiction, which will retain the cause in the superior court. 6 T. R. 175. 8 T. R. 235. 1 B. & P. 75. 1 Dowl. & R. 359,-Cutty.
& The new county-courts, so called in contradistinction to the county-courts before mentioned, were established by the statute 9 & 10 Vict. c. 95. They at first possessed jurisdiction only for the recovery of debts, damages, and demands, legacies and balances of partnership accounts, where the sum sued for did not exceed 201. They were also charged with the power of giving a landlord possession of premises where the tenant's term had determined or he had received proper notice to quit, in cases in which the rent did not exceed 501. annually and no fine had to be paid. By the statute 13 & 14 Vict. c. 61, their jurisdiction was extended to actions where the amount sued for did not exceed 501., and, if the litigants consented in writing, to actions for any amount whatever. By this statute an appeal was also given against the decision of the judge on matter of law, but only in actions for sums above 201. No appeal lies from his decision in matters of fact. The other statutes relating to this branch of the jurisdiction of these courts are the 12 & 13 Vict. c. 101, and 15 & 16 Vict. c. 54. They have no jurisdiction, it may be observed, unless the parties expressly consent in writing to that effect, in actions in which the title to corporeal or incorporeal hereditaments, or to any toll or franchise, or in which the validity of any devise or bequest under a will or settlement, may come in question. Actions brought for a malicious prosecution, for libel or slan«ler, criminal conversation, or seduction, or breach of proinise of marriage, are expresily excluded.
These are the several species of common-law courts, which, though dispersed universally throughout the realm, are nevertheless of a partial jurisdic. iion, and confined to particular districts, yet communicating with, and, as it were, members of, the superior courts of a more extended and general nature; which are calculated for the administration of redress, not in any one lordship, hundred, or county only, but throughout the whole kingdom at large. Of which sort is,
V. The court of common pleas, or, as it is frequently termed in law, the court of common bench.
By the antient Saxon constitution, there was only one superior court of justice in the kingdom; and that court had cognizance both of civil and spiritual causes: viz., the wittena-gemote, or general council, which assembled annually or oftener, wherever the king kept his Christmas, Easter, or Whitsuntide, as well to do private justice as to consult upon public business. At the conquest the ecclesiastical jurisdiction was diverted into another channel; and the Conqueror, fearing danger from these annual parliaments, contrived also to separate their ministerial power, as judges, from their deliberative, as counsellors to the crown. He therefore established a constant court in his own hall, thence called by Bracton,(h) and other antient authors, aula regia, or aula regis. This court was composed of the king's great officers of state resident in his palace, and usually attendant on his person, such as the lord high constable and lord mareschal, who chiefly presided in matters of honour and of arms; determining according to the law military and the law of nations. Besides these, there were the lord high steward, and lord great chamberlain; the steward of *38]
the household; the lord chancellor, whose peculiar *business it was to
keep the king's seal, and examine all such writs, grants, and letters as were to pass under that authority; and the lord high treasurer, who was the principal adviser in all matters relating to the revenue. These high officers were assisted by certain persons learned in the laws, who were called the king's justiciars or justices, and by the greater barons of parliament, all of whom had a seat in the aula regia, and formed a kind of court of appeal, or rather of advice, in matters of great moment and difficulty. All these in their several departments transacted all secular business both criminal and civil, and likewise the matters of the revenue : and over all presided one special magistrate, called the chief justiciar, or capitalis justiciarius totius Angliæ; who was also the principal minister of state, the second man in the kingdom, and by virtue of his office guardian of the realm in the king's absence. And this officer it was who principally determined all the vast variety of causes that arose in this extensive jurisdiction, and from the plenitude of his power grew at length both obnoxious to the people, and dangerous to the government which em. ployed him.(0)
This great universal court being bound to follow the king's household in all his
progresses and expeditions, the trial of. common causes therein was found very burdensome to the subject. Wherefore king John, who dreaded also the power of the justiciar, very readily consented to that article which now forms the eleventh chapter of magna carta, and enacts, “ that communia placita non (*) L. 3, tr. 1, 2, 7.
Spelm. Gloss. 331, 332, 333. Gilb. Hist. C. P. introd. 17.
The judges must be barristers of seven years' standing. The judge decides all ques. tions as well of fact as of law, unless one or other of the parties to the action has demanded a jury for the trial of matters of fact,—which in actions for sums above 51. may be obtained as of right, and consists of five jurors summoned from the district where the court is holden.
The court is a court of record. It is held once a month. And, to encourage parties to resort to this tribunal, the plaintiff in the superior courts (in suits in which they have concurrent jurisdiction) does not recover his costs in actions of contract where he recovers no more than 201., and in actions of tort where he recovers no more than 5l., unless the judge of the superior court who tries the cause certifies for costs, or it appears to the court that there was sufficient reason for bringing the action in the superior court.-STEWART.