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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 dire&tion given is to cause the plaint to be recorded, recordari facias loquelam.
III. A HUNDRED court is only a larger court-baron, being hield for all the inhabitants of a particular hundred instead of à manor. The free suitors are here also the judges and the Iteward the registrar, as in the case of a court-baron. It is likewise no court of record; resembling the former in all r 38 1 points, except that in point of territory it is of a greater jurisdiction'. This is said by sir Edward Coke to have been derived out of the county court for the case 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 v; and who probably gave the same de. nomination to the district out of which they were chofen. Caesar speaks positively of the judicial power exercised in their hundred courts and courts-baron. “ Principes regionum, ato que pagorum,” (which we may fairly construe, the lords of hundreds and manors) “ inter fuos jus dicunt, controversi“ asque minuunt w.” 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 free, holders, and had themselves a share in the determination. « Eliguntur in conciliis et principes, qui jura per pagos vicofque “ reddunt : centeni singulis, ex plebe comites, confilium fimul et
• Finch. L. 218. 4 Inst. 267. ipsum inter fuos vocantur; et, quod primo 12 Init. 71.
numerus fuit, jam nomen ei bonor eft. v Vol. I. pag. 116.
Tac. de mor. Germ. c. 6. u Conseri ex fingulis pagis funt, idque w de bull. Gall. l. 6. 6. 22.
« auctoritas, adfunt *.” This hundred-court was denominated haereda in the Gothic constitution y. But this court, as causes are equally liable to removal from hence, as from the common court-baron, and by the same writs, and may also be reviewed by writ of false judgment, is therefore fallen into equal disuse with regard to the trial of actions.
IV. The county court is a court incident to the jurisdic.
tion of the sheriff. It is not a court of record, but may hold [ 36 ] pleas of debt or damages under the value of forty shillings z.
Over some of which causes these inferior courts have, by the express words of the statute of Gloucester“, a jurisdiction totally exclusive of the king's superior courts. For in order to be entitled to sue an action of trespass for goods before the king's justiciars, the plaintiff is directed to make affidavit that the cause of action does really and bona fide amount to 405; which affidavit is now unaccountably disused b, except in the court of exchequer(2). The statute also 43 Eliz. c. 6. which gives the judges in many personal actions, where the jury assess less damages than 40s. a power to certify the same and abridge the plaintiff of his full costs, was also meant to prevent vexation by litigious plaintiffs ; who, for purposes of mere oppression, might be inclinable to institute suits in the fuperior courts for injuries of a trifling value. The county court may also hold plea of many real actions, and of all personal actions to any amount, by virtue of a special writ called a jufticies; which is a writ empowering the sheriff for the sake of dispatch to do the same justice in his county court, as might otherwise be had at Westminsters. The
a de Morib. German. c. 13.
a 6 Edw. I. c. 8.
(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 40 s. the proceedings will be stayed, unless the plaintiff will also 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 sheriff is the ministerial officer. The great conflux of freeholders, which are supposed always to attend at the county court, (which Spelman calls forum plebeiae juftitiae et theatrum comitivae potestatis 4) is the reason why all acts of parliament at the end of every sellion were wont to be therç published by the sheriff; why all outlawries of absconding offenders are there proclaimed ; and why all popular elections which the freeholders are to make, as formerly of sheriffs and conservators of the peace, and still of coroners, verderors, and knights of the shire, must ever be made in pleno comitatu, or, in full county court. By the statute 2 Edw. VI. c. 25. no county court shall be adjourned longer than for one month, consisting of twenty-eight days. And this was also the antient usage, as appears from the laws of king Ed- [ 37 ] ward the eldere : praepofitus (that is, the sheriff) ad quar“ tam circiter septimanam frequentem populi concionem celebrato : “ cuique jus dicito ; litefque fingulas dirimito.” In those times the county court was a court of great dignity and splendor, the bishop and the ealdorman (or earl) with the principal men of the shire fitting therein to administer justice both in lay and ecclesiastical causes f. But it's dignity was much impaired, when the bishop was prohibited and the earl neglected to attend it. And, in modern times, as proceedings are removeable from hence into the king's superior courts, by writ of pone or recordaris, in the same manner as from hundred courts, and courts-baron ; and as the same writ of false judgment may be had, in nature of a writ of error; this has occasioned the same disuse of bringing actions therein.
These are the several species of common law courts, which though dispersed universally throughout the realm, are nevertheless of a partial jurisdiction, and confined to particular districts : yet communicating with, and as it were members of, the superior courts of a more extended and general nature; which are calculated for the administra. d Glof. v. comitatus.
ILL. Eadgari. c. 5. &c.IS.
& F. N. B. 70. Finch. 445.
tion of redress not in any one lordship, hundred, or county only, but throughout the whole kingdom at large. Of which sort is
V. The court of common pleas, or, as it is frequently termed in law, the court of common bench.
By the artient Saxon conflitution there was only one su: perior court of justice in the kingdom; and that court had cognizance both of civil and spiritual causes: viz, the wittengemote,or general council, which allembled annually or oftener, wherever the king kept his Christmas, Easter, or Whitsuntide, as well to do private justice as to consult upon public
business. At the conqueít the ecclefiaftical jurisdiction was [ 38 ] diverted into another channel; and the conqueror, fearing
danger from these annual parliaments, contrived also to separate their ministerial power, as judges, from their deliberative, as counsellors to the crown. He therefore established a constant court in his own hall, thence called by Bracton" and other antient authors anla regia or aula regis. This court was composed of the king's great officers of state resident in his palace, and usually attendant on his person : such as the lord high conftable and lord mareschal, who chicfly presided in matters of honour and of arms; determining according to the law military and the law of nations. Besides there there were the lord high steward, and lord great chamberlain; the steward of the houihold; the lord chancellor, whose peculiar business it was to kecp the king's real and examine all such writs, grants, and letters, as were to pass under that authority; and the lord high treasurer, who was the principal adviser in all matters relating to the revenue. These high ollicers were affilted by certain persons learned in the laws, who were called the king's justiciars or justices ; and by the greater barons of parliament, all of whom had a feat in the aula regin, and formed a kind of court of appeal, or rather of advice, in matters of great moment and difficulty. All these
hl gorr. 1.8
in their several departments transacted all secular business both criminal and civil, and likewise the matters of the revenue : and over all prelided one special magistrate, called the chief justiciar or capitalis jufticiarius totius Angliae ; who was also the principal minister of state, the second man in the kingdom, and by virtue of his office guardian of the realm in the king's absence. And this officer it was, who principally determined all the vast variety of causes that arose 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 himj.
This great universal court being bound to follow the king's houshold in all his progresses and expeditions, the trial of common causes therein was found very burthensome [ 39 ] to the subject. Wherefore king John, who dreaded also the power of the justiciar, very readily confented to that article which now forms the eleventh chapter of magna carta, and enacts, “ that communia placita non sequantur curiam regis, fed “ teneantur in aliquo loco certo.” This certain place was established in Westminster-hall, the place where the aula regis originally fate, when the king resided in that city; and there it hath ever fince continued. And the court being thus rena dered fixed and stationary, the judge became so too, and a chief with other justices of the common pleas was thereupon appointed; with jurisdiction to hear and determine all pleas of land, and injuries merely civil between subject and subject. Which critical establishment of this principal court of common law, at that particular juncture and that particular place, gave rise 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 canonists and civilians, who laboured to extirpate and destroy it'. This precedent was soon after copied by king Philip the Fair in France, who about the year 1302 fixed the j Spelm. Gl. 331, 2, 3. Gilb. Hift. ! See vol. I. introd. 5 s.
C.P. introd. 17.