Page images
PDF
EPUB

CHAPTER THE FOURTH,

OF THE PUBLIC COURTS OF COMMON

LAW AND EQUITY.

UITE are next to consider the several species and distinc. V t ions of courts of justice, which are acknowleged and used in this kingdom... And these are either such as are of public and general jurisdiction throughout the whole realm ; or such as are only of a private and special jurisdiction in some particular parts of it. Of the former there are four forts; the universally established courts of common law and equity; the ecclesiastical courts; the courts military; and courts maritime. And, first, of such public courts as are courts of common law and equity.

The policy of our ancient constitution, as regulated and established by the great Alfred, was to bring justice home to every man's door, by constituting as many courts of judicature as there are manors and townships in the kingdom ; wherein injuries were redressed in an easy and expeditious manner, by the suffrage of neighbours and friends. These little courts however communicated with others of a larger jurisdiction, and those with others of a still greater power ; ascending gradually from the lowest to the supreme courts, which were

respectively

respectively conftituted to correct the errors of the inferior ones, and to determine such causes as by reason of their weight and disliculty 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 of twelve judgesa. Peru, according to Garcilaffo de Vega, (an historian descended from the antient Incas of that country) was divided into small disa tricts 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 of fifty families; and two of these last composed another called a hundred. Ten hundreds constituted the largest divis fion, consisting of a thoufand families; and each division had it's separate judge or magistrate, with a proper degree of subs ordination. In like manner we read of Moses, that, fonda ing the sole administration of justice too heavy for him, he s chose able men out of all Israel, fuch as feared God, men « of truch, hating covetousness; and made them heads over " the people, rulers of thousands, rulers of hundreds, rulers 56 of fifties, and rulers of tens : and they judged the people $6 at all seasons; the hard causes they brought unto Mofes, so but every small matter they judged themselves c.” These inferior courts, at least the name and form of them, still con

a Mod. Un. Hift. xxxviii, 46g.
b Ibidh, xxxix 14.

c Exod. c. 18.

D 2

tinue

tinue in our legal constitution : but as the superior courts of [ 32 ] record have in practice obtained a concurrent original juris

diction with these ; and as there is besides a power of removing plaints or actions thither from all the inferior jurisdic. tions; 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 natter of some fpeculation; 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.

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 difpersed throughout the kingdom, is yet (with regard to each particular court) confined to very narrow limits; and fo ascending gradually to those of the most extensive and tran. scendant 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 pedis pulverizati : so called from the dusty feet of the suitors; or according to fir Edward Coke, because justice is there done as speedily as dust can fall from the foot. Upon the same 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 etye mology given us by a learned modern writer is much more ingenious and satisfactory; it being derived, according to him, from pied puldreaux (a pedlar, in old French) and there. fore signifying the court of such petty chapmen as resort to fairs or markets. It is a court of record, incident to every fair and market; of which the steward of him, who owns or 4 4 Init. 2-2.

f Barrington's observat, on the fat, e Ruth. C. 4.

337

has 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 same 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 there 3. From this court a writ of error lies, in the nature of an appeal, to the courts at Westminster"; 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 posibly occasion the revival of the practice and proceed. ings in these courts, which are now in a manner forgotten. The reason of their original institution seems to have been, to do justice expeditiously among the variety of perfons, 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 erect. ed, 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 *, 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

& Stat. 17 Edw. IV, c. 2. Cro. Eliz. 773

i Co. Litt. 53.
k Book II. ch.4. ch. 6, and ch. 22.

fometimes

D

3

fometimes anciently called (1): for that it is held before the [ 34 ] freeholders who owe suit and service to the manor, the itew.

ard 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 free. holder'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 weeks; and it's most important business is to determine, by writ of right, all controversies relating to the right of lands within the manor. It may also hold plea of any personal actions, of debt, trespass on the case, or the like, where the debt or damages do not amount to forty shillings'; which is the same sum, or three marks, that bounded the jurisdiction of the antient Gothic courts in their lowest instance, or fierding-courts, so called, because four were instituted within every superior district or hundredm. But the proceedings on a writ of right may be removed into the county court by a precept from the sheriff called a tolt, quia tollit atque eximit caufam e curia baronum.And the proceedings in all other actions may be removed into the superior courts by the king's writs of pone P, or accedas ad curiam, according to the nature of the fuit ?. After judgment given, a writ also of false judgments lies to the courts at Westminster to rehear and review the

I Finch. 248.
im Stiernhook de jure Gorb. l. 1. 6. 2.

BF.N.B.3,4. See append. No. 1. $2.:
. • 3 Rep. pref.

P See append. No. I. $ 3.
F.N.B. 4. 70. Finch. L. 444,445.
F. N. B. 18.

(1) All the freeholders of the king were called barons, but the Editor is not aware that it appears from any authority that this word was ever applied to those who held freeholds of a subject. See an account of the antient barons, i vol. 398. n. 3. It seems to be the more obvious explanation of the court baron, that it was the court of the baron or lord of the manor, to which his freeholders owed suit and service. In like manner we say the king's court and the sherif's court,

cause,

« PreviousContinue »