sewers. This is a temporary tribunal erected by virtue of a commission under the great seal; which formerly used to be granted pro re nata at the pleasure of the crown, (r) but now at the discretion and nomination of the lord chancellor, lord treasurer, and chief justices, pursuant to the statute 23 Hen. VIII. c. 5. Their jurisdiction is to overlook the repairs of sea banks and sea walls; and the cleasing of rivers, public streams, ditches, and other conduits, whereby any waters are carried off: and is confined to such county or particular district as the commission shall expressly name. The commissioners are a court of record, and may fine and imprison for contempt; (s) and in the execution of their duty may proceed by jury, or upon their own view, and may take order for the removal of any annoyances, or the safeguard and conservation of the sewers within their commission, either according to the laws and customs of Romney-marsh, (t) or otherwise at their own discretion. They may also assess such rates, or scots, upon the owners of lands within their district, as they shall judge necessary; and, if any person refuses to pay them, the commissioners may levy the same by distress of his goods and chattels; or they may, by statute 23 Hen. VIII. c. 5., sell his freehold lands (and by the 7 Ann. e. 10. his copyhold also) in order to pay such scots or assessments. [74] But their conduct is under the control of the court of king's bench, which will prevent or punish any illegal or tyrannical proceedings. (u) And yet in the reign of king James I. (8 Nov. 1616), the privy council took upon them to order, that no action or complaint should be prosecuted against the commissioners, unless before that board; and committed several to prison who had brought such actions at common law, till they should release the same: and one of the reasons for discharging sir Edward Coke from his office of lord chief justice was for countenancing those legal proceedings. (v) The pretence for which arbitrary measures was no other than the tyrant's plea, (w) of the necessity of unlimited powers in works of evident utility to the public, "the supreme reason above all "reasons, which is the salvation of the king's lands and people." But now it is clearly held, that this (as well as all other inferior jurisdictions) is subject to the discretionary coercion of his majesty's court of king's bench. (x) III. The court of policies of assurance, when subsisting, is orected in the pursuance of the statute 43 Eliz. c. 12. which recites the immemorial usage of policies of assurance, "by means whereof it cometh to pass, up"on the loss or perishing of any ship, there followeth not the undoing of any man, but the loss lighteth rather easily upon many than heavy upon "few, and rather upon them that adventure not, than upon those that do 'adventure; whereby all morchants, especially those of the younger sort, "are allured to venture more willingly and more freely: and that hereto. fore such assurers had used to stand so justly and precisely upon their 66 Romney-marsh, in the county of Kert, a tract containing 24,000 acres, is governed by certain ancient and equitable laws of sewers, composed by Henry de Bathe, a venerable judge in the reign of king Henry the Third; from which laws all commissioners of sewers in England may receive light and direction. (4 Inst. 276.) u Cro. Jac. 33t. v Moor. 325, 82f. See pag. 55. * i Vent. 66. Salk. 145. Milt. parad. lost. iv. 399. (4) See in general, Bac. Ab. Courts, Court of Commissioners of Sewers; Com. Dig. Sewers. For the law relating to sewers in general, and the jurisdiction of this court, see Callis on Sewers, which is considered a work of very good authority. 2 T. R. 365. (5) This must be taken to mean officers of the court, as the court cannot imprison, for a con. fempt, a person not being such offices. 1 Sid. 145. 66 "credits, as few or no controversies had arisen thereupon; and if any had grown, the same had from time to time been ended and ordered by certain grave and discreet merchants appointed by the lord mayor of the city of "London; as men by reason of their experience fittest to understand and "speedily decide those causes :" but that of late years divers persons had withdrawn themselves from that course of arbitration, and had driven the assured to bring separate actions at law against each assurer: it therefore enables the lord chancellor yearly to grant a standing commission to the judge of the admiralty, the recorder of London, two doctors [ 75 ] of the civil law, two common lawyers, and eight merchants; any three of which, one being a civilian or a barrister, are thereby and by the statute 13 & 14 Car. II. c. 23. empowered to determine in a summary way all causes concerning policies of assurance in London, with an ap peal (by way of bill) to the court of chancery. But the jurisdiction being somewhat defective, as extending only to London, and to no other assurances but those on merchandise, (y) and to suits brought by the assured only, and not by the insurers, (≈) no such commission has of late years issued: but insurance causes are now usually determined by the verdict of a jury of merchants, and the opinion of the judges in case of any legal doubts; whereby the decision is more speedy, satisfactory, and final: though it is be wished, that some of the parliamentary powers, invested in these commissioners, especially for the examination of witnesses, either beyond the seas or speedily going out of the kingdom, (a) could at present be adopted by the courts of Westminster-hall, without requiring the consent of parties. IV. The court of the marshalsea, and the palace-court at Westminster, though two distinct courts, are frequently confounded together. The former was originally holden before the steward and marshal of the king's house, and was instituted to administer justice between the king's domestic servants, that they might not be drawn into other courts, and thereby the king lose their service. (b) It was formerly held in, though not a part of, the aula regis; (c) and when that was subdivided, remained a distinct juris. diction holding plea of all trespasses committed within the verge of the court, where only one of the parties is in the king's domestic service (in which case the inquest shall be taken by a jury of the country), and of all debts, contracts, and covenants, where both of the contracting parties belong to the royal household; and then the inquest shall be composed of men of the household only. (d) By the statute of 13 Ric. II. st. [76] 1. c. 3. (in affirmance of the common law), (e) the verge of the court in this respect extends for twelve miles round the king's place of residence. (f) And, as this tribunal was never subject to the jurisdiction of the chief justiciary, no writ of error lay from it (though a court of record) to the king's bench, but only to parliament, (g) till the statutes of 5 Edw. III. c. 2. and 10 Edw. III. st. 2. c. 3, which allowed such writ of error before the y Styl. 166. a Stat. 13 & 14 Car. I. c. 22. § 3 & 4. c Fict. l. 2. c. 2. z 1 Show. 396. b 1 Bulstr. 211. d Artic. sup. cart. 28 Ed. I. c. 3. Stat. 5 Edw. III. c. 2. 10 Edw. III. st. 2. c. 2. e 2 Inst. 548. f By the ancient Saxon constitution, the paz regia, or privilege of the king's palace, extended from his palace gate to the distance of three miles, three furlongs, three acres, nine feet, nine palms, and nine barley-corns; as appears from a fragment of the textus Roffensis cited in Dr. Hickes's dissertat. epistol. 114. g 1 Bulstr. 211, 10 Rep. 79. (6) And, as another reason for this, it should be observed that a recovery in this court is no bar to another action for the same cause in the superior court. 2 Sid. 121. (7) See in general, Com. Dig. Courts, F. Bac. Ab. Courts of Marshalsea. king in his palace. But this court being ambulatory, and obliged to follow the king in all his progresses, so that by the removal of the household, ac. tions were frequently discontinued, (h) and doubts having arisen as to the extent of its jurisdiction, (i) king Charles I. in the sixth year of his reign by his letters patent erected a new court of record, called the curia palatii or palace-court, to be held before the steward of the household and knightmarshal, and the steward of the court, or his deputy; with jurisdiction to hold plea of all manner of personal actions whatsoever, which shall arise between any parties within twelve miles of his majesty's palace at Whitehall. (k) The court is now held once a week, together with the ancient court of marshalsea, in the borough of Southwark and a writ of error lies from thence to the court of king's bench. But if the cause is of any considerable consequence, it is usually removed on its first commencement, together with the custody of the defendant, either into the king's bench or common pleas, by a writ of habeas corpus cum causa: and the inferior business of the court had of late years been much reduced, by the new courts of conscience erected in the environs of London; in consideration of which the four counsel belonging to these courts had salaries granted them for their lives by the statute 23 Geo. II. c. 27. [77] V. A fifth species of private courts of a limited, though extensive, jurisdiction are those of the principality of Wales; which, upon its thorough reduction, and the settling of its polity in the reign of Henry the Eighth, (1) were erected all over the country; principally by the statute 34 & 35 Hen. VIII. c. 26., though much had been before done, and the way prepared by the statute of Wales, 12 Edw. I. and other statutes. By the statute of Henry the Eighth before-mentioned, courts-baron, hundred, and county courts are there established as in England. A session is also to be held twice in every year in each county, by judges (m) appointed by the king, to be called the great sessions of the several counties in Wales: in which all pleas of real and personal actions shall be held, with the same form of process and in as ample a manner as in the court of common pleas at Westminster : (n) and writs of error shall lie from judgments therein (it being a court of record) to the court of king's bench at Westminster. But the ordinary original writs of process of the king's courts at Westminster do not run into the principality of Wales: (o) though process of execution does; (p) as do also prerogative writs, as writs of certiorari, quo minus, mandamus, and the like. (q) And even in causes between subject and subject, to prevent injustice through family factions or prejudices, it is held lawful (in causes of freehold at least, and it is usual in all others) to bring an action in the English courts, and try the same in the next English county adjoining to that part of Wales where the cause arises, (r) and where the venue is laid. But, on the other hand, to prevent trifling and frivolous suits, it is enacted by statute 13 Geo. III. c. 51. that in personal actions, tried in any English county, where the cause of action arose, and the defendant resides in Wales, if the plaintiff shall not recover a verdict for ten i 1 Bulstr. 209. h F. N. B. 241. 2Inst. 548. k 1 Sid. 180. Salk. 439. m Stat. 18 Eliz. c. 8. 1 See Book I. introd. § 4. n See, for farther regulations of the practice of these courts, stat. 5 Eliz. c. 25. 8 Eliz. c. 20. 8 Geo. I. c. 25. § 6. 6 Geo. II. c. 14. 18 Geo, lil, c. 51. o 2 Roll. Rep. 141. q Cro. Jac. 484. p 2 Bulstr 156. 2 Saund. 193. Raym, 206. (8) Com. Dig. Wales. A latitat now runs into Wales. Dougl. 213. Tidd, 8 ed. 149. pounds, he shall be nonsuited and pay the defendant's costs, unless it be certified by the judge that the freehold or title came principally in question, or that the cause was proper to be tried in such English county. And if any transitory action, the cause whereof arose and the de- [ 78 ] fendant is resident in Wales, shall be brought in any English county, and the plaintiff shall not recover a verdict for ten pounds, the plaintiff shall be nonsuited, and shall pay the defendant's costs, deducting thereout the sum recovered by the verdict."0 VI. The court of the duchy chamber of Lancaster is another special ju risdiction, held before the chancellor of the duchy or his deputy, concerning all matter of equity relating to lands holden of the king in right of the duchy of Lancaster: (s) which is a thing very distinct from the county palatine (which hath also its separate chancery, for sealing of writs, and the like),(t) and comprises much territory which lies at a vast distance from it; as particularly a very large district surrounded by the city of Westminster. The proceedings in this court are the same as on the equity side in the courts of of exchequer and chancery; (u) so that it seems not to be a court of record; and indeed it has been holden that those courts have a concurrent jurisdiction with the duchy court, and may take cognizance of the same causes. (v) VII. Another species of private courts, which are of a limited local jurisdiction, and have at the same time an exclusive cognizance of pleas, in matters both of law and equity, (w) are those which appertain to the counties palatine of Chester, Lancaster, and Durham, and the royal franchise of Ely. (x)" In all these, as in the principality of Wales, the king's ordinary writs, issuing under the great seal out of chancery, do not run; that is, they are of no force.12 For as originally all jura regalia were granted to the lords of these counties palatine, they had of course the sole administration of justice, by their own judges appointed by themselves and not by the crown. It would therefore be incongruous for the king to send his writ to direct the judge of another's court in what manner to administer justice between the suitors. But when the privileges of these counties palatine and franchises were abridged by statute 27 Henry VIII. c. 24. [79 ] it was also enacted, that all writs and process should be made in the king's name, but should be teste'd or witnessed in the name of the owner of the franchise. Wherefore all writs, whereon actions are founded, and which have current authority here, must be under the seal of the respective franchises the two former of which are now united to the crown, and the two latter under the government of their several bishops. And the judges of assise, who sit therein, sit by virtue of a special commission from the : s Hob. 77. 2 Lev. 24. t1 Ventr. 257. v 1 Chan. Rep. 55. Toth. 145. Hard. 171. (10) See construction of this act, Tidd, 8 ed. index, tit. Wales. If goods be delivered in London to be carried into Wales, the debt, though under 10., may be sued for in London. 2 Starkie, 33. (11) Com. Dig. Franchises, D. 1, &c. 9. (12) But a latitat may be issued into a county palatine, properly directed. Tidd, 8 ed. 149, 150. And on an original writ sued out in another county, a testatum capias may be issued into a county palatine for bringing in the defendant Tidd Prac. 8 ed. 125 And how to take bail on such capias, see 3 Moore, 76. Tidd, 8 ed 252. But an original capias cannot regularly issue into it. 1 Moore, 514 As to the direction and service of the process into these courts, see Tidd's Prac. 8 ed. 150. 167. 1036. 1 Brod. & B. 12. To entitle a party to arrest in these counties, on process issuing out of the inferior courts at Westminster, by 11 & 12 W. 3. c. 9. s. 2. he must swear that the debt amounts to 20%. or upwards. Archbold. owners of the several franchises, and under the seal thereof; and not by the usual commission under the great seal of England. Hither also may be referred the courts of the cinque ports, or five most important havens, as they formerly were esteemed, in the kingdom; viz. Dover, Sandwich, Romney, Hastings, and Hythe; to which Winchelsea and Rye have been since added; which have also similar franchises in many respects (a) with the counties palatine, and particularly an exclusive jurisdiction (before the mayor and jurats of the ports), in which exclusive jurisdiction the king's ordinary writ does not run. A writ of error lies from the mayor and jurats of each port to the lord warden of the cinque ports, in his court of Shepway; and from the court of Shepway to the king's bench. (y) So likewise a writ of error lies from all the other jurisdictions to the same supreme court of ju dicature,(z) as an ensign of superiority reserved to the crown at the original creation of the franchises. And all prerogative writs (as those of habeas corpus, prohibition, certiorari and mandamus) may issue for the same reason to all these exempt jurisdictions; (a) because the privilege, that the king's writ runs not, must be intended between party and party, for there can be no such privilege against the king. (b) VIII. The stannary courts in Devonshire and Cornwall, for the administration of justice among the tinners therein, are also courts of record, but of the same private and exclusive nature." They are held before [80] the lord warden and his substitutes, in virtue of a privilege granted to the workers in the tin mines there, to sue and be sued only in their own courts, that they may not be drawn from their business, which is highly profitable to the public, by attending their law-suits in other courts. (c) The privileges of the tinners are confirmed by a charter, 33 Edw. I. and fully expounded by a private statute, (d) 50 Edw. III. which has since been explained by a public act, 16 Car. I. c. 15. What relates to our present purpose is only this: that all tinners and labourers in and about the stannaries shall, during the time of their working therein bona fide, be privileg ed from suits of other courts, and be only impleaded in the stannary court in all matters, excepting pleas of land, life, and member. No writ of error lies from hence to any court in Westminster-hall; as was agreed by all the judges (e) in 4 Jac. I. But an appeal lies from the steward of the court to the under-warden; and from him to the lord-warden; and thence to the privy council of the prince of Wales, as duke of Cornwall, (f) when he hath had livery or investiture of the same. (g) And from thence the appeal lies to the king himself, in the last resort. (h) IX. The several courts within the city of London, (i) and other cities, boroughs, and corporations throughout the kingdom, held by prescription, charter, or act of parliament, are also of the same private and limited species.15. It would exceed the design and compass of our present inquiries, x 1 Sid. 166. y Jenk. 71, Dyversyte des courtes. t. bank le roy. 1 Sid. 356. i The chief of those in London are the sheriff's courts, holden before their steward or judge; from which a writ of error lies to the court of hustings, before the mayor, recorder, and sheriffs; and from thence to justices appointed by the king's commission, who used to sit in the church of Martin le grand. (F. N. B. 32.) And from the judgment of those justices a writ of error lies immediately to the house of lords. (13) Com. Dig. Franchises, E. 2. Bac. Ab. Courts of Cinque Ports. (14 As to this court, see Com. Dig. Courts, L. Bac. Ab. tit. Courts of the Stannaries, and Jac. Law Dict. tit. Stannaries. (15) Com. Dig. Courts, O. P. Bac. Ab. Courts in London. |