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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) (4) 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. 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 tested 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. (z) So likewise a writ of error lies from all the other jurisdictions to the same supreme court of judicature, (a) as an ensign [*80] 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; (b) 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 nis 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. 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 stanneries 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 (f) 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
(x) See Book I, introd. 4.
(w) 4 Inst. 213, 218. Finch, R. 452.
(y) 1 Sid. 166.
(b) 1 Sid. 92. (f) 4 Inst. 231.
(c) Cro. Jac. 543.
(4) The counties palatine of Lancaster and Durham are now united to the crown (6 and 7 Wm. IV, c. 19), while that of Chester has been by statutes 11 Geo. IV, and 7 Wm. IV, c. 70, abolished, and that of Ely by statutes 6 and 7 Wm. IV, c. 87, and 7 Wm. IV., and 1 Vic. c. 53, also extinguished.
council of the prince of Wales, as duke of Cornwall, (g) when he hath had livery or investiture of the same. (1) And from thence the appeal lies to the king himself, in the last resort. (i) (5)
*IX. The several courts within the city of London, (j) and other cities, [*81] boroughs, and corporations throughout the kingdom, held by prescrip tion, charter, or act of parliament, are also of the same private and limited species. It would exceed the design and compass 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 hundredcourts, 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 Westminister-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, 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 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. The first of these was established in London, so early as the regin 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. The constitution is this: two aldermen, 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 way, by [*82] 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 upon nearly the same plan as that in the city of London.
The anxious desire that has been shown 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
(h) 3 Bulstr. 183.
(i) Doddridge, Hist. of Cornw. 94.
(g) Ibid. 230. 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 St. 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. (k) Salk. 144, 263.
(5) [As the law now is, from the decisions of the vice-warden, both in equity and at commor. law, an appeal lies to the lord-warden, assisted by two or more members of the judicial committe of the privy council, or judges of equity, or courts of law at Westminster; and every judgment of the lord-warden is subject to an appeal to the house of lords.]
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 has 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 Middlesex, by the county clerk. 2. That twelve freeholders of that hundred, qualified to serve on juries, and struck by the [*83]
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 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. (6) 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 process in a *course much conformed to the civil law, for reasons sufficiently explained in a former book. (1)
[*84] These privileges were granted, that the students might not be distracted fron. 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 seen, containing this grant to the university of Oxford, was 28 Hen. III, A. D. 1244. And the same privileges were confirmed and enlarged by almost every succeeding prince, down to King Henry the Eighth; in the fourteenth year of whose reign, the largest and most exten
(6) [As the object of the privilege is, that students and others connected with the universities should not be distracted from the studies and duties to be there performed, the party proceeded against must in general be a resident member of the university, and that fact must be expressly sworn, or be collected from the affidavit. The privilege of Cambridge differs from that of Oxford: in the former, it only extends to causes of action accruing in the town and its suburbs; but in Oxford it extends to all personal causes arising anywhere. R. T. Hardw. 241; 2 Wils. 406; Bac. Ab., Universities.]
sive charter of ali was granted. One similar to which was afterwards granted to Cambridge, in the third year of Queen Elizabeth. But yet, notwithstanding these charters, the privileges granted therein, of proceeding in a course different from the law of the land, were of so high a nature that they were held to be invalid; for though the king might erect new courts, yet he could not alter the course of law by his letters patent. Therefore, in the reign of Queen Elizabeth, an act of parliament was obtained, (n) confirming all the charters of the two universities, and those of 14 Hen. VIII and 3 Eliz. by name. Which blessed act, as Sir Edward Coke entitles it, (o) established this high privilege without any doubt or opposition: (p) or, as Sir Matthew Hale, (q) very fully expresses the sense of the common law and the operation of the act of parliament. "Although King Henry the Eighth, 14 A. R. sui, granted to the university a liberal charter, to proceed according to the use of the university, viz.: by a course much conformed to the civil law, yet that charter had not been sufficient to have warranted such proceedings without the help of an act of parliament. [*85] And, therefore, in 3 Eliz. *an act passed, whereby that charter was in effect enacted; and it is thereby that at this day they have a kind of civil law procedure, even in matters that are of themselves of common law cognizance, where either of the parties is privileged."
This privilege, so far as relates to civil causes, is exercised at Oxford in the chancellor's court; the judge of which is the vice-chancellor, his deputy or assessor. From his sentence an appeal lies to delegates appointed by the congregation; from thence to other delegates of the house of convocation; and if they all three concur in the same sentence it is final, at least by the statutes of the university, (r) according to the rule of the civil law. (s) But, if there be any discordance or variation in any of the three sentences, an appeal lies in the last resort to judges delegates appointed by the crown under the great seal in chancery. (7)
I have now gone through the several species of private, or special courts, of the greatest note in the kingdom, instituted for the local redress of private wrongs; and must, in the close of all, make one general observation from Sir Edward Coke: (t) that these particular jurisdictions, derogating from the general jurisdiction of the courts of common law, are ever strictly restrained, and cannot be extended farther than the express letter of their privileges will most explicitly warrant.
OF THE COGNIZANCE OF PRIVATE WRONGS.
WE are now to proceed to the cognizance of private wrongs; that is, to consider in which of the vast variety of courts, mentioned in the three preceding chapters, every possible injury that can be offered to a man's person or property is certain of meeting with redress.
The authority of the several courts of private and special jurisdiction, or of what wrongs such courts have cognizance, was necessarily remarked as those respective tribunals were enumerated; and therefore need not be here again repeated; which will confine our present inquiry to the cognizance of civil injuries in the several courts of public or general jurisdiction. And the order in which I shall pursue this inquiry, will be by showing: 1. What actions may
(n) 13 Eliz. c. 29.
(9) Hist. C. L. 33.
(0) 4 Inst. 227. (p) Jenk. Cent. 2 pl. 88.
Ceut. 3 pl. 33. Hard. 504. Godbolt. 201. (t) 2 Inst. 548.
(7) [The privilege of the university of Oxford is fully stated in 1 Q. B. 952. In the matter of the chancellor, fe.
he brought or what injuries remedied, in the ecclesiastical courts. 2. What in the military. 3. What in the maritime. And, 4. What in the courts of common law.
And, in regard to the three first of these particulars, I must beg leave not so much to consider what hath at any time been claimed or pretended to belong to their jurisdiction, by the officers and judges of those respective courts; but what the common law allows and permits to be so. For these eccentrical tribunals (which are principally guided by the rules of the imperial and canon laws), as they subsist and are admitted in England, not by any right of their own, (a), but upon bare sufferance and toleration from the municipal laws, [*87] must have recourse to the laws of that country wherein they are thus adopted, to be informed how far their jurisdiction extends, or what causes are permitted, and what forbidden, to be discussed or drawn in question before them. It matters not, therefore, what the pandects of Justinian, or the decretals of Gregory, have ordained. They are here of no more intrinsic authority than the laws of Solon and Lycurgus: curious perhaps for their antiquity, respectable for their equity, and frequently of admirable use in illustrating a point of history. Nor is it at all material in what light other nations may consider this matter of jurisdiction. Every nation must and will abide by its own municipal laws; which various accidents conspire to render different in almost every country in Europe. We permit some kinds of suits to be of ecclesiastical cognizance, which other nations have referred entirely to the temporal courts; as concerning wills and successions to intestate's chattels; and perhaps we may, in our turn, prohibit them from interfering in some controversies, which on the continent may be looked upon as merely spiritual. In short the common law of England is the one uniform rule to determine the jurisdiction of our courts: and, if any tribunals whatsoever attempt to exceed the limits so prescribed them, the king's courts of common law may and do prohibit them; and in some cases punish their judges. (b)
Having premised this general caution, I proceed now to consider,
I. The wrongs or injuries cognizable by the ecclesiastical courts. I mean such as are offered to private persons or individuals; which are cognizable by the ecclesiastical court, not for reformation of the offender himself or party injuring (pro salute animæ, as is the case with immoralities in general when unconnected with private injuries), but for the sake of the party injured, to make him a satisfaction and redress for the damage which he has sustained. And these I shall reduce under three general heads; of causes pecuniary, causes matrimonial, and causes testamentary,
1. Pecuniary causes, cognizable in the ecclesiastical courts are such as arise either from the withholding ecclesiastical dues, or the doing or neglecting some act relating to the church, whereby some damage accrues to the plaintiff; towards obtaining a satisfaction for which he is permitted to institute a suit in the spiritual court. (1)
The principal of these is the subtraction or withholding of tithes from the parson or vicar, whether the former be a clergyman or a lay appropriator. (c) But herein a distinction must be taken: for the ecclesiastical courts have no jurisdiction to try the right of tithes unless between spiritual persons; (d) but in ordinary cases, between spiritual men and lay men, are only to compel the payment of them, when the right is not disputed. (e) By the statute or rather writ (f) of circumspecte agatis (g) it is declared that the court christian shall not be prohibited from holding plea, "si rector petat versus parochianos
(a) See book I, introd. § 1.
(c) Stat. 32 Hen. VIII, c. 7. (e) 2 Inst. 364, 486, 490.
(f) See Barrington, 123. 3 Pryn. Rec. 336. (g) 13 Edw. I, st. 4, or rather 9 Edw. II.
(1) This jurisdiction became unimportant under the operation of statute 6 and 7 Wm. IV, c. 71, and subsequent statutes for the commutation of tithes. And the statute 31 and 32 Vic. c 109, takes away wholly the jurisdiction of the ecclesiastical courts to compel the payment of church rates.