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persons named in the king's commission, " like as in case of appeal from the admiral-court.” But this is also expressly declared by statute 8 Eliz. c. 5. which enacts, that upon appeal made to the chancery, the sentence definitive of the delegates appointed by commission shall be final.
Appeals from the vice-admiralty courts in America, and our other plantations and settlements, may be brought before the courts of admiralty in England, as being a branch of the admiral's jurisdiction, though they may also be brought before the king in council. But in case of prize vessels, taken in time of war, in any part of the world, and condemned in any courts of admiralty or vice-admiralty as lawful prize, the appeal lies to certain commissioners of appeals consisting chiefly of the privy council, and not to judges delegates. And this by virtue of divers treaties with foreign nations ; by which particular courts are established in all the mari. time countries of Europe for the decision of this question, whether lawful prize or not (4): for this being a question between subjects of different states, it belongs entirely to the law of nations, and not to the municipal laws of either country, to determine it. The original court, to
, which this question is *permitted in England, is the court of ad- [*70 ] miralty (5); and the court of appeal is in effect the king's privy council, the members of which are, in consequence of treaties, commissioned under the great seal for this purpose. In 1748, for the more speedy determination of appeals, the judges of the courts of Westminster-hali, though not privy counsellors, were added to the commission then in being. But doubts being conceived concerning the validity of that commission, on account of such addition, the same was confirmed by statute 22 Geo. II. c. 3. with a proviso, that no sentence given under it should be valid, unless a majority of the commissioners present were actually privy counsellors. But this did not, I apprehend, extend to any future commissions : and such an addition became indeed totally unnecessary in the course of the war which commenced in 1756 ; since during the whole of that war, the commission of appeals was regularly attended and all its decisions conducted by a judge (6), whose masterly acquaintance with the law of nations was known and revered by every state in Europe (y).
(y) See the sentiments of the president Montes- court to his Prussian majesty's Exposition des moquieu, and M. Vattel (a subject of the king of Prus- tifs, &c. A. D. 1753. (Montesquieu's letters; 5 sia), on the answer transmitted by the English Mar. 1753. Vattel's droit de gens. l. 2, c. 7, 984).
(4) And in order to give effect to this, the pointed by a commission under the great seal, prize acts passed at the commencement of a which enumerates particularly, as well as gewar usually provide, that ships and goods ta. nerally, every object of his jurisdiction, but ken from the enemy, whether by the royal navy not a word of prize. See Dougl. 614. The or by privateers, must first be condemned in judge of the prize court is appointed, and the some court of admiralty as lawful prize, be- court authorized, by a coinmission under the fore any right, in point of solid enjoyment, can great seal directed to him, to will and require accrue to the captors; and specific directions the court of admiralty, and the lieutenant and are prescribed for duly proceeding to such sen- judge of the same court, his surrogate or surrotence. See the 19 Geo. III. c. 67. 1 Wils. gates, and they are thereby authorized and re229. 4 Rob. 55.
quired to proceed upon all, and all manner of (5) This seems incorrect, for questions of captures, seizures, prize, and reprisals, of all this nature are tried in the prize court, which ships and goods that are or shall be taken, and is quit distinct from the admiralty court, to hear and determine according to the course otherwise called the instance court. The of the admiralty, and the law of nations. See wbole system of litigation and jurisprudence id.; and see further as to the jurisdiction and in the prize court is peculiar to itself. See proceedings in the prize court, post. Dougl. 594. The judge of the admiralty court, (6) “Lord Mansfield.” tough also the judge of the prize court, is ap
(9) See Hov, n. (9) at the end of the Vol. B. III.
OF COURTS OF A SPECIAL JURISDICTION (1). In the two preceding chapters we have considered the several courts, whose jurisdiction is public and general ; and which are so contrived that some or other of them may administer redress to every possible injury that can arise in the kingdom at large. There yet remain certain others, whose jurisdiction is private and special, confined to particular spots, or instituted only to redress particular injuries. These are, ,
1. The forest courts, instituted for the government of the king's forests in different parts of the kingdom, and for the punishment of all injuries done to the king's deer or venison, to the vert or greenswerd, and to the covert in which such deer are lodged. These are the courts of attachments, of regard, of sweinmote, and of justice-seat. The court of attachments, wood motes, or forty days court, is to be held before the verderors of the forest once in every forty days (a); and is instituted to inquire into all offenders against vert and venison (6); who may be attached by their bodies, if taken with the mainour (or mainoeuvre, a manu), that is, in the very act of killing venison, or stealing wood, or preparing so to do, or by fresh and immediate pursuit after the act is done (c); else they must be attached by
their goods. And in this forty days court the foresters or keepers [*72] are to bring in their attachments, *or presentments de viridi et
venatione ; and the verderors are to receive the same, and to enrol them, and to certify them under their seals to the court of justice-seat, or sweinmote (d): for this court can only inquire of, but not convict offenders. The court of regard, or survey of dogs, is to be holden every third year for the lawing or expeditation of mastiffs, which is done by cutting off the claws and ball (or pelote) of the fore-feet, to prevent them from running after deer (e). No other dogs but mastiffs are to be thus lawed or expeditated, for none others were permitted to be kept within the precincts of the forest; it being supposed that the keeping of these, and these only, was necessary for the defence of a man's house (S). 3. The court of sweinmote is to be holden before the verderors, as judges, by the steward of the sweinmote, thrice in every year (g), the sweins or freeholders within the forest composing the jury. The principal jurisdiction of this court is, first, to inquire into the oppressions and grievances committed by the officers of the forest; "de super-oneratione forestariorum, et aliorum ministrorum forestae; et de eorum oppressionibus populo regis illatis;" and, secondly, to receive and try presentments certified from the court of attachment against offences in vert and venison (h). And this court may not only inquire, but convict also, which conviction shall be certified to the court of justice-seat under the seals of the jury; for this court cannot proceed to judgment (i). But the principal court is, 4. The court of justice-seat, which is held before the (a) Cart. de forest. I Hen. III. c. 8.
(f) 4 Inst. 308.
(0) 4 Inst. 289.
(8) Cart. de forest. c. 8.
(1) In New-York there are no courts strictly resembling those described in this chapter.
chief justice in eyre, or chief itinerant judge, capitalis justitiarius in itinere, or his deputy ; to hear and determine all trespasses within the forest, and all claims of franchises, liberties, and privileges, and all pleas and causes whatsoever therein arising (k). It may also proceed to try presentments in the inferior courts of the forests, and to give judgment upon conviction of the sweinmote. And the chief justice may therefore after presentment made, or indictment found, but *not before (l), issue [*73) his warrant to the officers of the forest to apprehend the offenderse It may be held every third year; and forty days' notice ought to be given of its sitting. This court may fine and imprison for offences within the forest (m), it being a court of record : and therefore a writ of error lies from hence to the court of king's bench, to rectify and redress any mal-administrations of justice (n); or the chief justice in eyre may adjourn any matter of law into the court of king's bench (0). These justices in eyre were instituted by king Henry II., A. D. 1184 (P) (2); and their courts were formerly very regularly held; but the last court of justice-seat of any note was that holden in the reign of Charles I., before the earl of Holland ; the rigorous proceedings at which are reported by sir William Jones. After the restoration another was held, pro forma only, before the earl of Oxford (9); but since the æra of the revolution in 1688, the forest laws have fallen into total disuse, to the great advantage of the subject (3).
II. A second species of restricted courts is that of commissioners of sewers (4). 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 cleansing 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) (5); 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 conserva- [*74] tion of the sewers within their commission, either according to the laws and customs of Romney-marsh (t), or otherwise at their own discre
(£) 4 Inst. 291.
(3) Sid. 145.
(t) Romney-marsh, in the county of Kent, a tract containing 24,000 acres, is governed by certain ancient and equitable laws of sewers, composed by Henry de Gathe, 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).
(2) By the 57 Geo. III. c. 61. the offices of enforced the odious forest laws, as a source of these justices are abolished on the termination revenue independent of the parliament. of their then existing interests, and the sala. (4) See in general, Bac. Ab. Courts, Court ries of the abolished offices are to make part of Commissioners of Sewers; Com. Dig. of the consolidated fund.
Sewers. For the law relating to sewers in (3) All the forests which were made after general, and the jurisdiction of this court, see the conquest, except New Forest in Hamp. Callis on Sewers, which is considered a work shire, created hy William the Conqueror, were of very good authority. 2 T. R. 365. disafforested by the charta de foresta. The (5) This must be taken to mean officers of forest of Hampton-court was established by the court, as the court cannot imprison, for a the authority of parliament in the reign of contempt, a person not being such officer. 1 Hea. Vill. The number of forests in Eng- Sid. 145. land is sixty-nine. 4 Inst. 319. Charles I.
tion. 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. c. 10. his copyhold also) in order to pay such scots or assessments. 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 insurance, when subsisting, is erected 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 [*75] pass, upon 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 merchants, especially those of the younger sort, are allured to venture more willingly and more freely : and that heretofore such assurers had used to stand so justly and precisely upon their 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 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. 23empowered to determine in a summary way all causes concerning policies of assurance in London, with an appeal (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 (2), no such commission has of late years issued (6): but insurance causes are now usually determined by the ver
(u) Cro. Jac. 336.
(7) 1 Vent. 66. Salk. 146.
(6) And, as another reason for this, it should bar to another action for the same cause in be observed that, a recovery in this court is no the superior court. 2 Sid. 121.
dict 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 to 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 West- [*76] minster, 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 (6). It was formerly held in, though not a part of, the aula regis (c); and, when that was subdivided, remained a distinct jurisdiction : 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. 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 be. fore the 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, actions were frequently discontinued (), 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 knight-marshal, and the steward of the court, *or his [ *77] 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) (7). The court is now held once a week, together with the ancient court of marshalsea, in the borough of Southwark (8): 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 hath of late (a) Stat. 13 & 14 Car. II. c. 22, ( 3 & 4.
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 dis. (d) Artic. sup. cart. 28 Ed. I. c. 3. Stat. 5 Edw. sertat. cpistol. 114. 10 Edw. III. st. 2, c. 2.
(g) 1 Bulstr. 211. 10 Rep. 79. (F) By the ancient Saxon constitution, the regia, or privilege of the king's palace, extended from his palace gate to the distance of three miles,
(7) The charter under which the court now where both the parties happen to be of the exists, appears to have been granted A. R. 16 household ; such causes being properly cogCar. II. The court has no jurisdiction within nizable by the court of marshalsea. the city of London, and none over causes (8) Now in Scotland-yard, Whitehall.
(0) 1 Bulstr. 211. (c) Fiet. l. 2, c. 2.
III. c. 2.
(e) 2 Inst. 548.
(h) F.N. B. 241. 2 Inst. 348.