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"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 [32] 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 oblivion; 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.


I. 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 specdy, as well as public. But the etymology given us by a learned modern writer (f) is much more ingenious and satisfactory; it being derived, according to him, from pied puldreaux (a pedlar, 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 jus[ 33 ] tice 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 an action arose there. (g) 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 and 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 oc casion 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 distant places to a fair or market; since it is proba

c Exod. c. 18.

e Ruth. c. 4.

g Stat. 17 Edw. IV. c. 2.

d 4 Inst. 272.
f Barrington's observat. on the stat. 337.
h Cro. Eliz. 13.

(2) See in general, Bac. Ab. Court of Piepoudre; Com. Dig. Market, G. 1, 2.; 2 Chitty's Com. L. 151.

ble 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-baron3 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; (i) the one is a customary court, of which we formerly spoke, (k) 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 anciently called: for that it is held before the freeholders who owe suit and service to the manor, the [34] 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 jus tice. 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 da mages do not amount to forty shillings; (7) which is the same sum, or three marks, that bounded the jurisdiction of the ancient Gothic courts in their lowest instance, or fierding-courts, so called, because four were in stituted 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 baro(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. (q) 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 some 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 court-baron. It is likewise no court of record; resembling the former

i Co. Litt. 58.

1 Finch. 248.

n F. N. B. 3. 4. See Append. No. 1. §2. p See Append. No. I. § S.

k Book 2. ch. 4. ch. 6. and ch. 22.
m Stiernhook de jure Goth, l. 1. c. 2.
o 3 Rep. pref.

q F. N. B. 4. 70. Finch. L. 444, 445.

r F. N. B. 18.

(5) See in general, Com. Dig. Copyhold, R. 1. P. 1.; Bac. Ab. Court-baron; Vin. Ab. Court baron, 7 vol. 8.; 2 Watkins on Cop. 4, &c.

(4) 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 1 Book 398. n. S. 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.--Mr. Christian's note.

(5) A freehold tenant has no right to inspect the court rolls, unless there be a cause depending in which his right may be involved. 7 T. R. 746. And see Barnes, 237. 2 Bla. Rep. 1050. Tidd, 8 ed. 648. as to copyholder's right to inspect them.

(6) See in general, Bac. Ab. Court, Hundred-court.

[35] 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 deriv. ed 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 (v) to have been introduced, though not invented, by Alfred, being derived from the polity of the ancient 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; (u) and who probably 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 courtsbaron. "Principes regionum atque pagorum" (which we may fairly construe, the lords of hundreds and manors), “inter suos jus dicunt, controver"siasque 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 a share in the determination. "Eliguntur in conciliis et principes, qui jura per pagos vicosque reddunt: "centeni singulis, ex plebe comites, consilium simul et auctoritas, ad"sunt." (x) This hundred-court was denominated haereda in the Gothic constitution. (y) But this court, as causes are equally liable to removal from hence, as from the common court-baron, and by the same writs, and may also be reviewed by writ of false judgment, is therefore fallen into equal disuse with regard to the trial of actions.

IV. The county-court' 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 [36] under the value of forty shillings. (z) Over some of which causes

■ Finch. L. 243. 4 Inst. 267.

t 2 Inst. 71.

Book I. p. 116.

• Centeni ex singulis pagis sunt, idque ipsum inter suos vocantur ; et, quod primo numerus fuit, jam no» men et honor est. Tac. de Mor. Germ. c. 6.

w de Bell. Gall. l. 6. c. 22.
y Stiernhook, l. 1. c. 2.

x de Morib. German, c. 13.
z 4 Inst. 266.

(7) As to the county-court in general, see Com. Dig. County-courts, B. 3.; Bac. Ab. Court, County-court; Vin. Ab. Court, County, 7 vol. 5.; 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 Ld. Kenyon, 6 T. R. 175. 8 T. R. 235. 1 Bos. & P. 75. 1 Dowl. & R. 359. So it the contract be made on the high seas, as for wages, it cannot be recovered in the county-court. I 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 laid to have been committed vi et armis, per Ld. Kenyon, 3 T. R. 38.; because the county-court, not being a court of record, cannot fine the defendaut. 1 Mod. 215. 2 Lev. 93. Carth. 108. 2 Inst. 311. Co. Litt. 118. Vin. Ab. Court, County, D. a. 2 pl. 9. Com. Dig. County C. 8. But it is said to be otherwise, when the proceedings are by justices. 2 Inst. 312. Com. Dig. County C. 5. Bac. Ab. Court, County-court. Vin. Ab. Court, D. a. 2 pl. 6. Doct. Plac. 234. The writ of justices does not, however, except in this instance, and as respects the amount of the debt, enlarge the sheriff's jurisdiction. 1 Lev. 253. Vin. Ab. 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 Rol. 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. Barnes, 353. but see 1 B. & P. 223, 4. No capias against the person can issue out of this court, Com. Dig. Coun ty 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 be obtained. Greenwood on Courts, 22. Finch, 318. F. N. B. 152. Chitty


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, (b) except in the court of exchequer. The statute also 43 Eliz. c. 6. which gives the judges in many personal actions, where the jury assess less damages than 40s. 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 mere oppression, might be inclinable to institute suits in the superior courts for injuries of a trifling value. The county-court may also hold a 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 dispatch to do the same justice in his county-court, as might otherwise be had 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 plebeiae justiciae et theatrum comitivae 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 county-court. 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 ancient usage, as appears from the laws of king Edward the elder; (e)" praepositus [ 37 ] "(that is, the sheriff) ad quartam circiter septimanam frequentem

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populi concionem celebrato: cuique jus dicito; litesque singulas diri"mito." 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 writ of false judgment may be had, in nature of a writ of error; this has occasioned the same disuse of bringing actions therein.

These are the several species of common law courts, which, though dispersed universally throughout the realm, are nevertheless of a partial jurisb 2 Inst. 391. [3 T. R. 363. Bac. Ab. Court of King's Bench, A. 2.] c Finch. 318. F. N. B. 152. e c. 11.

a 6 Edw. 1. c. 8.

d Gloss. v. comitatus.

g F. N. B. 70. Finch, 445.

f LL. Eadgari. c. 5.

(8) 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. 64. 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 shew 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. Chitty. (9) Such as dower, right patent, right of ward. Inst. 266. 3 Inst. 312.


diction, 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,10 or, as it is frequently termed in law, the court of common bench.

By the ancient 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 [38] 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 ancient 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 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. Those 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 Anglie; 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 princi. pally determined all the vast variety of causes that arose in this extensive jurisdiction; and from the plenitude of his power grew at length both ob. noxious to the people, and dangerous to the government which employed him. (i)

This great universal court being bound to follow the king's household in all his progresses and expeditions, the trial of common causes [39] therein was found very burthensome 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 sequantur curiam regis, “sed teneantur in aliquo loco certo." This certain place was established

h l. 3. tr. 1. c. 7.

i Spelm. Gl. 2, 3. Gilb. Hist. C. P. introd. 17.

(10) As to the jurisdiction of this court in general, see post 109. Com. Dig. Courts, C.; Bac. Ab. Court of Common Pleas; Sell. Prac. appendix, A.; Tidd's Prac. 8 cd. 34, 5.; Boote's Suit at Law; Gilbert's C. P. 2 & 3.

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