Page images

respectively constituted to correct the errors of the inferior ones, and to determine such causes as by reason of their ■weight and difficulty demanded a more solemn discussion. The course of justice flowing in large streams from the king, as the fountain, to his superior courts of record; and being then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed. An institution that seems highly agreeable to the dictates of natural reason, as well as of more enlightened policy ; being equally similar to that which prevailed in Mexico and Peru before they were discovered by the Spaniards, and to that which was established in the Jewish republic by Moses. In Mexico each town and province had it's proper judges, who heard and decided causes, except when the point in litigation was too intricate for their determination ; and then it was remitted to the supreme court of the empire, established in the capital, and consisting os twelve judges a. Peru, according to Garcilasso de Vega, (an historian descended from the antient Incas of that country) was divided into small districts containing ten families each, all registred, and under one magistrate; who had authority to decide little differences ,and punish petty crimes. Five of these composed a higher class oijifty families ; and two of these last composed another called a hundred. Ten hundreds constituted the largest division, consisting of a thousand families; and each division had it's separate judge or magistrate, with a proper degree of subordination b. In like manner we read of Moses, that, 'finding the sole administration of justice too heavy for him, he "chose able men out of all Israel, such as feared God, men "of truth, hating covetousness; and made them heads over "the people, rulers of thousands, rulers of hundreds, rulers "of fifties, and rulers of tens : and they judged the people "at all seasons; the hard causes they brought unto Moses, "but every small matter they judged themselves c." These inferior courts, at least the name and form of them, still continue in our legal constitution: but as the superior courts of

* Mod. Un. Hist, xxxviii. 469. c Exod. c. 18.

* Ji:J. XXx'lX. 14.

. record record have in practice obtained a concurrent original jurisdiction with these ; and as there is besides a power of removing plaints or actions thither from all the inferior jurisdictions } upon these accounts (among others) it has happened that these petty tribunals have fallen into decay, and almost into oblivion: whether for the better or the worse, may be matter of some speculation; when we consider on the one hand the increase of expense and delay, and on the other the more able and impartial decision, that follow from this change of jurisdiction. likewise no court of record; resembling the former in all points, except that in point of territory it is of a greater jurisdiction 5. This is said by sir Edward Coke to have been derived out of the county court for the ease of the people, that they might have justice done to them at their own doors, •without any charge or loss of time'; but it's institution was probably co-eval with that of hundreds themselves, which were formerly observed v to have been introduced though not invented by Alfred, being derived from the polity of the antient Germans. The centeni, we may remember, were the principal inhabitants of a district composed of different villages, originally in number an hundred, but afterwards only called by that name °; and who probably gave the fame denomination to the district out of which they were chosen. Caesar speaks positively of the judicial power exercised in their hundred courts and courts-baron. "Principes regionum, at"que pagorttm," (which we m2y fairly consiruej the lords of hundreds and manors) " intersuos jus dicunt, controverfi"a/que minuuntw." And Tacitus, who had examined their constitution still more attentively, informs us not only of the authority of the lords, but of- that of the centeni, the hundredors, or jury; who were taken out of the common freeholders, and had themselves a share in the determination. "Eliguntur in couciliis et principes, qui jura per pagos vicofque *' reddunt: centeni ftngulis, ex plebe comites, consiliumstmul et *' auiloritas, adsuntx." This hundred-court was denominated haereda in the Gothic constitution r. But this court, as causes are equally liable to removal from hence, as from the common court-baron, and by the fame writs, and may also be reviewed by writ of false judgment, is therefore fallen into equal disuse with regard to the trial of actions.

The order I shall observe in discoursing on these several courts, constituted for the redress of civil injuries (for with those of a jurisdiction merely criminal I shall not at present concern myself) will be by beginning with the lowest, and those whose jurisdiction, though public and generally dispersed throughout the kingdom, is yet (with regard to each particular court) confined to very narrow limits; and so ascending gradually to those of the most extensive and transcendent power.

I. The lowest, and at the same time the most expeditious, court of justice known to the law of England is the court of piepoudre, curia pedispulverizati: so called from the dusty feet of the suitors; or according to sir Edward Coke d, because justice is there done as speedily as dust can fall from the foot. Upon the fame principle that justice among the Jews was administered in the gate of the city % that the proceedings might be the more speedy as well as public. But the etymology given us by a learned modem writerf is much more ingenious and satisfactory; it being derived, according to him, from piedpuldreaux (a pedlar, in old French) and therefore signifying the court of such petty chapmen as resort to fr.irs or markets. It is a court of record, incident to every fair and market; of which the steward of him, who owns or

J 4 Inft. 272. f Barringtan's observat. on the flat,

c Rath. c. 4. 337.

has the toll of the market, is the judge: and it's jurisdiction extends to administer justice for all commercial injuries done in that very fair or market, and not in any preceding one. So that the injury must be done, complained of, heard, and determined, within the compass of one and the fame day, unless the fair continues longer. The court hath cognizance of all matters of contract that can possibly arise within the precinct of that fair or market; and the plaintiff must make oath that the cause of an action arose there5. From this court a writ of error lies, in the nature of an appeal, to the courts at Westminster h; which are now also bound by the statute 19 Geo. III. c. 70. to issue writs of execution, in aid of its process, after judgment, where the person or effects of the defendant are not within the limits of this inferior jurisdiction; which may possibly occasion the revival of the practice and proceedings in these courts, which are now in a manner forgotten. The reason of their original institution seems to have been, to do justice cxpeditiously among the variety of persons, that resort from distant places to a fair or market: since it is probable that no other inferior court might be able to serve it's process, or execute it's judgments, on both or perhaps either of the parties; and therefore, unless this court had been erected, the complaint must necessarily have resorted even in the first instance to some superior judicature.

II. The court-baron is a court incident to every manor in the kingdom, to be holden by the steward within the said manor. This court-baron is of two natures': the one is. a customary-court, of which we formerly spoke k, appertaining entirely to the copyholders, in which their estates are transferred by surrender and admittance, and other matters transacted relative to their tenures only. The other, of which we now speak, is a court of common law, and it is, the court of the barons, by which name the freeholders were sometimes antiently called : for that it is held before the free

• Stat. 17 Edw. IV. c. z. 'Co. Lift. ;8.

* Cro. Eli*. 773. k Book II. ch. 4. ch. 6. and ch.ii.

-Vol. III. C holders

holders who owe suit and service to the manor, the steward being rather the registrar than the judge. These courts, though in their nature distinct, are frequently confounded together. The court we are now considering, viz. the freeholder's court, was composed of the lord's tenants, who were the pares of each other, and were bound by their feodal tenure to assist their lord in the dispensation of domestic justice. This was formerly held every three weeksj and it's most important business is to determine, by writ of right, all controversies relating to the right of lands within the 'manor. Ir may also hold plea of any personal actions, of debt, trespass on the cafe, or the like,, where the debt or damages do not amount to forty shillings '; which is the fame sum, or three marks, that bounded the jurisdiction of the antient Gothic courts in their lowest instance, or ferding-courts, so called, because four were instituted within every superior district or hundred m. But the proceedings on a writ of right may be removed into the .county court by a precept from the sheriff called a toll", " quia tollit atque eximit caufam e atria ba"ronum c" And the proceedings in all other actions may be removed into the superior courts by the king's writs of pone p, or aceedas ad curiafn, according to the nature of the suit X. After judgment given, a writ also offalse judgment' lies to the courts at Westminster to rehear and review the cause, and not a writ os error; for this is not a court of record: and therefore, in some of these writs of removal, the first direction, given is to cause the plaint to be recorded, recordari facias loquelam.

III. A Hundred court is only a larger court-baron, being held for all the inhabitants of a particular hundred instead of a manor. The free suitors are here also the judges and the steward the registrar, as in the case of a court-baron. It is

[ocr errors][ocr errors][merged small]

IV. The county court is a court incident to the jurisdiction of die sheriff. It is not a court of record, but may hold

» Finch, h. 248. 4 Inst. 167. numerus suit, jam nomen et b-nor iB.

« 2 Inst. 71. T«c. de rmr. Germ. c. 6.
• Vol I. pag. 116. w dt MI. Call. I. 6. c. 12!

u Centeni ex Jingulii pagh Junt, idque x de TAcrib.German, c. 13. ipfum inter fuel il.anuir; et, qutiprimo 1 Stiemhoek. /.i.e. 2.

C 2 pleas

« PreviousContinue »