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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, woodmotes, 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 [*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 (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 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 (). 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. 9 Hen. III. c. 8.
(b) 4 Inst. 289.
(c) Carth. 79.
(d) Cart. de forest. c. 16.
(e) Ibid. c. 16.
(f) 4 Inst. 308.
(g) 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 (1), issue [*73 ] his warrant 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) (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 (q); 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 conservation of the sewers within their commission, either according to the laws and customs of Romney-marsh (t), or otherwise at their own discre
(k) 4 Inst. 291.
(1) Stat. 1 Edw. III. c. 8. 7 Ric. II. c. 4. (m) 4 Inst. 313.
(n) Ibid. 297.
(0) Ibid. 295.
(q) North's Life of Lord Guildford, 45. (7) F. N. B. 118.
(2) By the 57 Geo. III. c. 61. the offices of these justices are abolished on the termination of their then existing interests; and the salaries of the abolished offices are to make part of the consolidated fund.
(3) All the forests which were made after the conquest, except New Forest in Hampshire, created by William the Conqueror, were disafforested by the charta de foresta. The forest of Hampton-court was established by the authority of parliament in the reign of Hen. VIII. The number of forests in England is sixty-nine. 4 Inst. 319. Charles I.
(8) 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 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).
enforced the odious forest laws, as a source of revenue independent of the parliament.
(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 contempt, a person not being such officer. 1 Sid. 145.
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. 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 merchandise (y), and to suits brought by the assured only, and not by the insurers (z), no such commission has of late years issued (6) but insurance causes are now usually determined by the ver
(u) Cro. Jac. 336.
() Moor, 825, 826. See page 55. (w) Milt. parad. lost, iv. 393.
(6) And, as another reason for this, it should be observed that, a recovery in this court is no
(r) 1 Vent. 66. Salk. 146.
(y) Styl. 166.
(z) 1 Show. 396.
bar to another action for the same cause in 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-  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 (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 (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 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 (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 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
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 (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 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) (t), and comprises much territory which lies at a vast
(1) See Book I. introd. ◊ 4. (m) Stat. 18 Eliz. c. 8.
(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. 13 Geo. III. c. 51.
(9) A latitat now runs into Wales. Dougl. 213. Tidd, 8 ed. 149.
(10) See construction of this act, Tidd, 8 ed. index, tit. Wales. If goods be delivered
(0) 2 Roll. Rep. 141.
(p) 2 Bulstr. 156. 2 Saund. 193. Raym. 206.
(r) Vaugh. 413. Hard. 66.
in London to be carried into Wales, the debt, though under 101. may be sued for in London. 2 Starkie, 33.
(10) See Hov. n. (10) at the end of the Vol. B. III