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cause, and not a writ of error; for this is not a court of record: and therefore, in some of these writs of removal, the first direction given is to caufe 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 à manor. The free fuitors are here alfo the judges and the steward the registrar, as in the cafe of a court-baron. It is likewife no court of record; resembling the former in all points, except that in point of territory it is of a greater jurifdiction. This is faid by fir Edward Coke to have been derived out of the county court for the ease of the people, that they might have juftice done to them at their own doors, without any charge or lofs of time; but it's inftitution 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 compofed of different vil lages, 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 chofen. Caefar fpeaks pofitively of the judicial power exercised in their hundred courts and courts-baron. "Principes regionum, at

que pagorum," (which we may fairly conftrue, the lords of hundreds and manors) "inter fuos jus dicunt, controverfi "afque minuuntTM" And Tacitus, who had examined their conftitution ftill 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 fhare in the determination. «Eliguntur in conciliis et principes, qui jura per pagos vicosque « reddunt: centeni fingulis, ex plebe comites, confilium fimul et

Finch. L. 248. 4 Inft. 267.

2 Inft. 71. v Vol. I. pag. 116.

Cenţeni ex fingulis pagis funt, idque

ipfum inter fuos vocantur ; et, quod primo
numerus fuit, jam nomen et bonor eft.
Tac. de mor. Germ. c. 6.

w de bill. Gall. l. 6. c. 22.
D4

[ 35 ]

"auctoritas,

"auctoritas, adfunt*"

This hundred-court was denomi-
But this court,

nated haereda in the Gothic constitution y.

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 difufe with regard to the trial of actions.

IV. THE County court is a court incident to the jurisdiction of the sheriff. It is not a court of record, but may hold [36] pleas of debt or damages under the value of forty fhillings. Over fome of which causes these inferior courts have, by the exprefs words of the statute of Gloucester, a jurisdiction totally exclufive of the king's fuperior courts. For in order to be entitled to fue an action of trefpafs for goods before the king's jufticiars, the plaintiff is directed to make affidavit that the cause of action does really and bona fide amount to 40s; which affidavit is now unaccountably disused, except in the court of exchequer (2). The ftatute alfo 43 Eliz. c. 6. which gives the judges in many personal actions, where the jury affefs lefs damages than 40s. a power to certify the fame and abridge the plaintiff of his full cofts, was alfo meant to prevent vexation by litigious plaintiffs; who, for purposes of mere oppreffion, might be inclinable to institute fuits in the fuperior courts for injuries of a trifling value. The county court may also hold plea of many real actions, and of all perfonal actions to any amount, by virtue of a special writ called a jufticies; which is a writ empowering the fheriff for the fake of difpatch to do the fame justice in his county court, as might otherwise be had at Westminster. The

de Morib. German. c. 13.
y Stiernhook. /. 1. c. 2.
2 4 Inst. 266.

a 6 Edw. I. c. 8.
Inft. 39T

b 2

c Finch. 318. F. N. B. 152.

(2) But if an action is instituted in any of the courts of Westminster, and if the defendant makes an affidavit that the debt is under 40s. the proceedings will be ftayed, unless the plaintiff will alfo make an affidavit to the contrary. 4 T. R. 495. 5 T. R. 64.

freeholders

freeholders of the county are the real judges in this court, and the fheriff is the minifterial officer. The great conflux of freeholders, which are fuppofed always to attend at the county court, (which Spelman calls forum plebeiae juftitiae et theatrum comitivae poteftatis ") is the reason why all acts of parliament at the end of every fellion were wont to be there published by the sheriff; why all outlawries of abfconding offenders are there proclaimed; and why all popular elections which the freeholders are to make, as formerly of sheriffs and confervators of the peace, and ftill of coroners, verderors, and knights of the fhire, muft ever be made in pleno comitatu, or, in full county court. By the ftatute 2 Edw. VI. c. 25. no county court fhall be adjourned longer than for one month, confifting of twenty-eight days. And this was also the antient usage, as appears from the laws of king Ed- [ 37 ] ward the elder: praepofitus (that is, the fheriff) ad quar"tam circiter feptimanam frequentem populi concionem celebrato : "cuique jus dicito; litefque fingulas dirimito." In those times the county court was a court of great dignity and fplendor, the bishop and the ealdorman (or earl) with the principal men of the shire fitting therein to administer justice both in lay and ecclefiaftical caufes f. But it's dignity was much impaired, when the bifhop was prohibited and the earl neglected to attend it. And, in modern times, as proceedings are removeable from hence into the king's fuperior courts, by writ of pone or recordari, in the fame manner as from hundred courts, and courts-baron; and as the fame writ of falfe judgment may be had, in nature of a writ of error; this has occafioned the fame difufe of bringing actions therein.

THESE are the feveral species of common law courts, which though difperfed univerfally throughout the realm, are nevertheless of a partial jurisdiction, and confined to particular districts: yet communicating with, and as it were members of, the fuperior courts of a more extended and general nature; which are calculated for the adminiftraLL. Eadgari. c. 5.

Gloff. v. comitatus.

ec.is.

g F. N. B. 70. Finch. 445.

tion of redrefs not in any one lordship, hundred, or county only, but throughout the whole kingdom at large. Of which fort is

V. THE Court of common pleas, or, as it is frequently termed in law, the court of common bench.

By the antient Saxon conflitution there was only one fuperior court of justice in the kingdom; and that court had cognizance both of civil and spiritual caufes: viz. the wittena gemote, or general council, which affembled annually or oftener, wherever the king kept his Christmas, Eafter, or Whitfuntide, as well to do private juftice as to confult upon public bufinefs. At the conqueft the ecclefiaftical jurifdiction was 38 diverted into another channel; and the conqueror, fearing danger from these annual parliaments, contrived also to separate their minifterial power, as judges, from their deliberative, as counfellors to the crown. He therefore established a conftant court in his own hall, thence called by Bracton and other antient authors aula regia or aula regis. This court was compofed of the king's great officers of state resident in his palace, and ufually attendant on his perfon: fuch as the lord high conftable and lord marefchal, who chiefly prefided in matters of honour and of arms; determining according to the law military and the law of nations. Befides these there were the lord high fteward, and lord great chamberlain; the fteward of the houthold; the lord chancellor, whose peculiar bufinefs it was to keep the king's feal and examine all fuch writs, grants, and letters, as were to pafs under that authority; and the lord high treasurer, who was the principal advifer in all matters relating to the revenue. Thefe high officers were affifted by certain perfons learned in the laws, who were called the king's jufliciars or juftices; and by the greater barons of parliament, all of whom had a feat in the aula regia, and formed a kind of court of appeal, or rather of advice, in matters of great moment and difficulty. All the fe

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in their feveral departments tranfa&ted all fecular business both criminal and civil, and likewife the matters of the revenue: and over all prefided one special magistrate, called the chief jufticiar or capitalis jufticiarius totius Angliae; who was also the principal minister of ftate, the second man in the kingdom, and by virtue of his office guardian of the realm in the king's abfence. And this officer it was, who principally determined all the vaft variety of caufes that arofe in this extensive jurisdiction; and from the plenitude of his power grew at length both obnoxious to the people, and dangerous to the government which employed himi.

THIS great univerfal court being bound to follow the king's houfhold in all his progreffes and expeditions, the trial of common caufes therein was found very burthenfome [ 39 ] to the fubject. Wherefore king John, who dreaded also the power of the jufticiar, very readily confented to that article which now forms the eleventh chapter of magna carta, and enacts, "that communia placita non fequantur curiam regis, fed "teneantur in aliquo loco certo." This certain place was eftablished in Westminster-hall, the place where the aula regis originally fate, when the king refided in that city; and there it hath ever fince continued. And the court being thus rendered fixed and stationary, the judge became fo too, and a chief with other juftices of the common pleas was thereupon appointed; with jurifdiction to hear and determine all pleas of land, and injuries merely civil between subject and fubject. Which critical establishment of this principal court of common law, at that particular juncture and that particular place, gave rife to the inns of court in its neighbourhood; and, thereby collecting together the whole body of the common lawyers, enabled the law itself to withstand the attacks of the canonifts and civilians, who laboured to extirpate and deftroy it. This precedent was foon after copied by king Philip the Fair in France, who about the year 1302 fixed the 1 See vol. I. introd. §1.

j Spelm. Gl. 331, 2, 3. Gilb. Hift. C.P. introd., 17.

parliament

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