« EdellinenJatka »
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.
V. A fifth species of private courts of a limited, though extensive, jurisdiction are those of the principality of Wales ;10 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) (9): though ( *78] *process of execution does (p); as do also prerogative writs, as
writs of certiorari, quo minus, mandamus, and the like (?). 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 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 defendant 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 (10).
VI. The court of the duchy chamber of Lancaster is another special jurisdiction, 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) (1), and comprises much territory which lies at a vast (1) See Book I. introd. 04.
(p) 2 Bulstr. 156. 2 Saund. 193. Raym. 206. (n) See, for farther regulations of the practice of
(r) Vaugh. 413. Hard. 66. Geo. I. c. 25, 66. 6 Geo. II. c. 14. 13 Geo. III. c.
(0) 2 Roll. Rep. 141.
(m) Stat. 18 Eliz. c. 8.
(9) Cro. Jac. 484.
these courts, stat. 5 Eliz. c. 25. 8 Eliz. c. 20. 8
(8) Hob. 77. 2 Lev. 24.
(9) A latitat now runs into Wales. Dougl. in London to be carried into Wales, the debt, 213. Tidd, 8 ed. 149.
though under 101. may be sued for in London. (10) See construction of this act, Tidd, 8 2 Starkie, 33. ed. index, tit. Wales. If goods be delivered
(10) See Hov. n. (10) at the end of the Vol. B. III.
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 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 (*79] 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 (11)." 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. 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 assize, who sit therein, sit by virtue of a special commission from the 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 (y) 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 (2). [ *80] So likewise a writ of error lies from all the other jurisdictions to the same supreme court of judicature (a), 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 man
(z) Jenk. 71. Dyversyte des courtes, t. bank le (v) i Chan. Rep. 55. Toth. 145. Hard. 171.
(a) Bro. Abr. t. error, 74. 101. Davis. 62. 4 Inst,
(6) 4 Inst. 206.
roy. 1 Sid. 356.
(10) 4 Inst. 213. 218. Finch. R. 452.
38. 214. 218.
(11) But a latitat may be issued into a As to the direction and service of the process county palatine, properly directed. Tidd. 8 into these courts, see Tidd's Prac. 8 ed. 150. ed. 149, 150. And on an original writ sued out 167. 1036. 1 Brod. & B. 12. To entitle a in another county, a testatum capias may be party to arrest in these counties, on process issued into a county palatine for bringing in issuing out of the inferior courts at Westminthe defendant. Tidd, Prac. 8 ed. 125. And ster, by 11 & 12 W. 3. c. 9. s. 2. he must how to take bail on such capias, see 3 Moore, swear that the debt amounts to 201, or up. 76. Tidd, 8 ed. 252. But an original capias wards. cannot regularly issue into it. i Moore, 514. VOL. II. (11) See Hov. n. (11) at the end of tho Vol. B. III. (12) Ibid. (12) B. IIL
damus) may issue for the same reason to all these exempt jurisdictions (6); 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 (c).
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 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 (d). The privileges of the tinners are confirmed by a charter, 33 Edw. I. and fully expounded by a private statute (e), 50 Edw. IJI. 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 privileged 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 () 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 (g), when he hath had livery or investiture of the same (h). And from thence
the appeal lies to the king himself, in the last resort (i). [*81] *IX, The several courts within the city of London (j), 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. It would exceed the design and compass of our present inquiries, if I were to enter into a particular detail of these, and to examine the nature and extent of their several jurisdictions. It may in general be sufficient to say, that they arose originally from the favour of the crown to those particular districts, wherein we find them erected, upon the same principle that hundred-courts, and the like, were established'; for the convenience of the inhabitants, that they may prosecute their suits and receive justice at home : that, for the most part, the courts at Westminster-hall have a concurrent jurisdiction with these, or else a superintendency over them (k), and are bound by the statute 19 Geo. III. c. 70. (12) to give assistance to such of them as are courts of record, by issuing writs of execution, where the person or effects of the defendant are not within the inferior jurisdiction : and that the proceedings in these special courts ought to be according to the course of the common law, unless otherwise ordered by parliament; for though the king may erect new courts, yet he cannot alter the established course of law.
But there is one species of courts, constituted by act of parliament, in (6) 1 Sid. 92.
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 (e) See this at length in 4 Inst. 232.
thence to justices appointed by the king's commis. (f) 4 Inst. 231.
sion, who used to sit in the church of St. Martin
le grand. (F. N. B. 32). And from the judgment (A) 3 Bulstr. 183.
of those justices a writ of error lies immediately li) Doderidge, Hist. of Cornw. 94. (1) The chief of those in London are the sheriffs (k) Salk. 144. 263.
(c) Cro. Jac. 543. (d) 4 Inst. 232.
(5) Ibid. 230.
to the house of lords.
(12) The 57 Geo. III. c. 101. continued this act, and see cases Tidd's Prac. 8th ed. 401, 2.
the city of London, and other trading and populous districts, which in their proceedings so vary from the course of common law, that they may deserve a more particular consideration. I mean the courts of requests, or courts of conscience, for the recovery of small debts (13). The first of these was established in London, so early as the reign of Henry the Eighth, by an act of their common council, which however was certainly insufficient for that purpose and illegal, till confirmed by statute 3 Jac. I. c. 15. which has since been explained and amended by statute 14 Geo. II. c. 10. (14). The constitution is this : two aldemmen, and four commoners, sit twice a week to hear all causes of debt not exceeding the *value of forty shillings; which they examine in a summary [*82 ] way, by the oath of the parties or other witnesses, and make such order therein as is consonant to equity and good conscience. The time and expense of obtaining this summary redress are very inconsiderable, which make it a great benefit to trade; and thereupon divers trading towns and other districts have obtained acts of parliament, for establishing in them courts of conscience uponnearly the same plan as that in the city of London (15).
The anxious desire that has been shewn to obtain these several acts, proves clearly that the nation in general is truly sensible of the great inconvenience arising from the disuse of the ancient county and hundred courts; wherein causes of this small value were always formerly decided, with very little trouble and expense to the parties. But it is to be feared, that the general remedy which of late hath been principally applied to this inconvenience (the erecting these new jurisdictions) may itself be attended in time with very ill consequences : as the method of proceeding therein is entirely in derogation of the common law; as their large discretionary powers create a petty tyranny in a set of standing commissioners; and as the disuse of the trial by jury may tend to estrange the minds of the people from that valuable prerogative of Englishmen, which has already been more than sufficiently excluded in many instances. How much rather is it to be wished, that the proceedings in the county and hundred courts could again be revived, without burdening the freeholders with too frequent and tedious attendances; and at the same time removing the delays that have insensibly crept into their proceedings, and the power that either party have of transferring at pleasure their suits to the courts at Westminster! And we may with satisfaction observe, that this experiment has been actually tried, and has succeeded in the populous county of Middlesex; which might serve as an example for others. For by statute 23 Geo. II. c. 33, it is enacted, 1. That a special county-court should be held, at least once a month, in every hundred of the county of *Mid- [*83] dlesex, by the county-clerk. 2. That twelve freeholders of that hundred, qualified to serve on juries, and struck by the sheriff, shall be summoned to appear at such court by rotation ; so as none shall be summoned oftener than once a year. 3. That in all causes not exceeding the
(13) See all the acts and cases thereon, re. debt does not exceed 203. shall be committed lating to courts of requests, ably collected in to prison for more than twenty days, and if the Tidd's Prac. 8 ed. 989 to 996.
debt does not exceed 40s. for more than forty (14) The act is still further extended by the days; unless it be proved to the satisfaction 39 & 40 Geo. III. c. 104. See Tidd's Prac. of the court, that he has money or goods which Bed. 989.
he fraudulently conceals, and in the first case (15) By the 25 Geo. III. c. 45. and 26 Geo. the imprisonment may be extended to thirty III. c. 38. no debtor or defendant, in any court days, and in the latter to sixty. for the recovery of small debts, where the
value of forty shillings, the county-clerk and twelve suitors shall proceed in a summary way, examining the parties and witnesses on oath, without the formal process anciently used: and shall make such order therein as they shall judge agreeable to conscience. 4. That no plaints shall be removed out of this court, by any process whatsoever; but the determination herein shall be final. 5. That if any action be brought in any of the superior courts against a person resident in Middlesex, for a debt or contract, upon the trial whereof the jury shall find less than 40s. damages, the plaintiff shall recover no costs, but shall pay the defendant double costs ; unless upon some special circumstances, to be certified by the judge who tried it. 6. Lastly, a table of very moderate fees is prescribed and set down in the act; which are not to be exceeded upon any account whatsoever. This is a plan entirely agreeable to the constitution and genius of the nation : calculated to prevent a multitude of vexatious actions in the superior courts, and at the same time to give honest creditors an opportunity of recovering small sums; which now they are frequently deterred from by the expense of a suit at law: a plan which, one would think, wants only to be generally known, in order to its universal reception.
X. There is yet another species of private courts, which I must not pass over in silence : viz. the chancellor's courts in the two universities of England (16). Which two learned bodies enjoy the sole jurisdiction, in exclusion of the king's courts, over all civil actions and suits whatsoever, when a scholar or privileged person is one of the parties; excepting in such cases where the right of freehold is concerned. And these by the university charter they are at liberty to try and determine, either according to the common law of the land, or according to their own local customs, at
their discretion ; which has generally led them to carry on their [*84] process in a *course much conformed to the civil law, for reasons
sufficiently explained in a former book (). These privileges were granted, that the students might not be distracted from their studies by legal process from distant courts, and other forensic avocations. And privileges of this kind are of very high antiquity, being -generally enjoyed by all foreign universities as well as our own, in consequence (I apprehend) of a constitution of the emperor Frederick, A. D. 1158 (m). But as to England in particular, the oldest charter that I have
(1) Book I. introd. $ 1..
(m) Cod. 4, tit. 13.
(16) As the object of the privilege is, that claim of the vice-chancellor on behalf of the students and others connected with the uni. chancellor, masters, and scholars of the uni. 'versities should not be distracted from the versity, entered on the roll in due form, setstudies and duties to be there performed, the ting out their jurisdictions under charters conparty proceeded against must in general be a firmed by statute, and averring that the cause resident member of the university, and that of action arose within such jurisdiction. 12 fact must be expressly sworn, or be collected East, 12. And claim of conusance by the from the affidavit. The privilege of Cam- university of Oxford was allowed in an action bridge differs from that of Oxford: in the for- of trespass in K. B. against a proctor, a promer, it only extends to causes of action accru- proctor, and the marshal of the university; ing in the town and its suburbs ; but in Ox. though the affidavit of the latter, describing ford it extends to all personal causes arising him as of a parish in the suburbs of Oxford, any where. R. T. Hardw. 241. 2 Wils. 406. only verified that he then was, and had been Bac. Ab. Universities. The claim of conu- for the last fourteen years, a common servant sance must be made in due form, and in due of the university, called marshal of the univertime. 2 Wils. 406. Claim of conusance of sity, and that he was sued for an act done by an action of trespass, brought in K. B. against him in the discharge of his duty, and in obea resident member of the university of Cam. dience to the orders of the other two defend. bridge, for a cause of action verified by affida- ants, without stating that he resided within vit not to have arisen within the town and sub- the university, or was matriculated. 15 East, urbs of Cambridge, was allowed upon the 634.