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 maritime countries of Europe for the decision of this question, whether lawful prize or not: (5) 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 [*70] original court to which this question is permitted in England is the court of admiralty; (6) 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-hall, 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 (7) whose masterly acquaintance with the law of nations was known and revered by every state in Europe. (y) CHAPTER VI. OF COURTS OF A SPECIAL JURISDICTION. 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 (y) See the sentiments of the president Montesquien, and M. Vattel (a subject of the king of Prussia.) on the answer transmitted by the English court to his Prussian majesty's Exposition des motifs, &c., A. D. 1753. (Montesquieu's letters, 5 Mar. 1753. Vattel's droit de gens, l. 2, c. 7, § 84.) (5) [And in order to give effect to this, the prize acts passed at the commencement of a war usually provide, that ships and goods taken from the enemy, whether by the royal navy or by privateers, must first be condemned in some court of admiralty as lawful prize, before any right in point of solid enjoyment can accrue to the captors; and specific directions are prescribed for duly proceeding to such sentence. See the 19 Geo. III, c. 67; 1 Wils. 229; 4 Rob. 55.] (6) [This seems incorrect, for questions of this nature are tried in the prize court, which is quité distinct from the admiralty court, otherwise called the instance court. The whole system of litigation and jurisprudence in the prize court is peculiar to itself See Dougl. 594. The judge of the admiralty court, though also the judge of the prize court, is appointed by a commission under the great seal, which enumerates particularly, as well as generally, every object of this jurisdiction, but not a word of prize. See Dougl. 614. The judge of the prize court is appointed, and the court authorized, by a commission under the great seal directed to him, to will and require the court of admiralty, and the lieutenant and judge of the same court, his surrogate or surrogates, and they are thereby authorized and required to proceed upon all and all manner of captures, seizures, prize and reprisals, of all ships and goods that are or shall be taken, and to hear and determine according to the course of the admiralty and the law of nations.] (7) Lord Mansfield is the judge here referred to. The national equity and admiralty courts of the United States are mentioned in the note to page 60. The several states have no admiralty courts, and some of them have no separate courts of equity, but equitable remedies are administered in the courts of law. Cognizance of probate cases is in the state governments exclusively, and courts of probate jurisdiction private and special, confined to particular spots, or instituted only to redress particular injuries. These are: I. 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 greensward, 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-mote, 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; (b) 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 are to bring in their attachments, or present[*72] ments de viridi et venatione; and the verderors are to receive the same, and to enroll them, and to certify them under their seals to the court of justiceseat, or sweinmote: (d) for this court can only inquire of, but not convict offenders. 2. The court of regard or survey of dogs, is to be holden every third year, for the lawing or expedition 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 other 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. (f) 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 oppression and grievances committed by the officers of the forest; "de super-oneratione forestariorum, et aliorum ministrorum forestæ; et de eorum oppressionibus populo regis illatis;" and, secondly, to receive and try presentments certified from the court of attachments 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, whica is held before the 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 forest, and to give judgment upon conviction of the sweinmote. And the chief justice may therefore, after presentment made, or indictment found, but *not before, () issue his warrant [*73] to the officers of the forest to apprehend the offenders. 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) and their courts were formerly very regularly held; but the last exist in all the states under different names and with more or less extensive powers. In some states they have complete jurisdiction of all questions of adminisration and distribution, to the exclusion of the courts of chancery; and in some, also, the equity jurisdiction in the case of infants is transferred, with more or less modification, to these courts. 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; (q) but since the era of the revolution in 1688, the forest laws have fallen into total disuse, to the great advantage of the subject. II. A second species of restricted courts is that of commissioners of sewer s. (1) his is a temporary tribunal, erected by virtue of a commission under the great eal; 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) 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 [*74] 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. 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 November, 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 to 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 erected in pursuance of the statute 43 Eliz. c. 12, which recites the immemorial usage of policies of assurance, "by means whereof it cometh to pass, upon the loss or perishing of any ship, there followeth not the undoing of any man, but [*75] 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 (r) F. N. B. 113. (s) Sid. 145. (q) North's Life of Lord Guilford. 45. (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 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. 336. (v) Moor, 825, 826. See page 55. (w) Milt. parad. lost, iv, 393. (x) 1 Vent. 66. Sack. 146. (1) The law regarding these commissioners has since been materially altered. See statutes 3 and 4 Wm. IV, c. 22, and 24 and 25 Vic. c. 133 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 o 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 and 14 Car. II, c. 23, empowered 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 merchandize, (y) and to suits brought by the assured only, and not by the insurers, (z) 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 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. (2) *IV. The court of marshalsea, and the palace-court at Westminster, [*76] 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 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. (ƒ) 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 king in his palace. But this court being ambulatory, and obliged to follow the king in all his progreses so that, by the removal of the houshold, actions 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 palatti 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) 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 busi (y) Styl. 166. (2)1 Show. 396. (b) Bulstr. 211. (h) F. N. B. 241. 2 Inst. 548. (i) Bulstr. 208. (2) The courts at Westminster have now the power of ordering the examination of witnesses who are abroad. VOL. II.-7 49 ness of the court hath 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. 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, (7) were erected all over the country; principally by the statute 34 and 35 Hen. VIII, c. 26, though much had before been 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: (0) though *pro[*78] cess of execution does; (p) as do also all prerogative writs, as writs of certiorari, quo minus, mandamus, and the like. (7) 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 wherein 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. (3) 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 the 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 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, [*79] (n) See. for farther regulations of the practice of these courts, stat. 5 Eliz. c. 25. 8 Eliz. c. 20. 8 Geo I e. 25, § 6. 6 Geo. II, c. 14. 13 Geo. III, c. 51. Raym. 206. (t) 1 Ventr. 257. (0) 2 Roll. Rep. 141. (p) 2 Bulstr. 156. 2 Saund. 193. (r) Vaugh. 413. Hard. 66. (s) Hob. 77. 2 Lev. 24. (v) 1 Chan. Rep. 55. Toth. 145. Hardr. 171. (q) Cro. Jac. 484. (3) These distinctions are now abolished, and by statutes 11 Geo. IV, and 1 Wm. IV, c. 70, 614, 5 Vic. c. 33, § 2, and 8 Vic. c. 11, the administration of justice in Wales is in every respect rendered uniform with that of England, and the writs of the superior courts of common law run into that principality. |