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CHAPTE & THE SIXTH.
OF COURTS OF A SPECIAL
IN the two preceding chapters we have considered the sea I veral 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 venifon, to the vert or greenswerd, and to the covert in which such deer are lodged. These are the courts of attachments, of regard, of fiveinmote, and of justice-feat. The court of attach. ments, woodincte, or forty days court, is to be held before the verderors of the forest once in every forty days; and is instituted to inquire into all offenders against vert and venia fon": 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 are to bring in their attachments, or presentments de viridi et venatione ; and the verderors are to receive the same, and to enroll them; and to certify them under their feals to the court of justice-seat, or fweinmoted: for this court can only inquire of, but not convict offenders. ' 2. The court of regard, or survey of dogs, is to be holden every third year for the lawing or expeditation of
* Carr. de forest , Hen. III. c. 8.
6 Car: h. 79.
mastiffs, which is done by cutting off the claws and ball (or [ 72 ) pelote) of the forefeet, to prevent them from running after
deer. No other dogs but mastiffs are to be thus lawed or expeditated, for none other 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 housef. 3. The court of fweinmote is to be holden before the verderors, as judges, by the steward of the sweinmote thrice in every years, 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 forestari“ orum,et aliorum miniftrorum forefiae; et de eorum oppressionibus “ populo regis illatis :" and, secondly, to receive and try pre. sentments certified from the court of attachments 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'. But the principal court is, 4. The court of justice-Seat, which is held before the chief justice in eyre, or chief itinerant judge, capitalis juftitiarius 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 dCartde foreft. c. 16.
h Stat. 34 Edw. I. c. I. e Cart. de foreft. c. 6,
i 4 Inít. 289. 14 Inft. 308.
k lbid. 291. & Cert, de foreft, c. 8.
therefore after presentment made or indictment found, but not before', issue 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 it's 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 justicen; or the chief justice in eyre may adjourn any matter of law into the court of king's bench. These justices in eyre were instituted by [ 73 ) king Henry II, A. D. 1184 P; and their courts were formerly very regularly held: but the last court of justice-feat of any note was that holden in the reign of Charles I, before the earl of Holland; the rigorous proceedings at which arę · reported by fir William Jones. After the restoration another was held pro forma only, before the earl of Oxford ?; but since the aera of the revolution in 1688, the forest laws have fallen into total disuse, to the great advantage of the subject (1).
II. A second species of restricted courts is that of commissioners of fewers. 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", but now at the discretion and nomination of the lord chancellor, lord treasurer, and chief justices, pursuant to the
Stat. s Edw. III. c.8. 7Ric.l1.c.4. m 4 Inft. 313. n Ibid. 297. • 4 Inft. 295.
(1) All the forests, which were made after the conqueft, except New Foreit in Hampshire created by William the Conqueror, were disafforested by the charta de foresia. 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 fixty-nine. 4 Infi. 319. Charles I. enforced the odious forest laws, as a source of re. venue independent of che parliament, VOL. III.
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 contempts“; 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 fafe- guard and conservation of the fewers within their commis.
sion, either according to the laws and customs of Romneymarsh', or otherwise at their own discretion. 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 [ 74 ] [cots 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". 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 fir 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", of the necessity of unlimited powers in works of evident utility to the public, " the supreme reason above all reasons, which is the salvasi Sid. 145.
which laws all commissioners of sewers i Romney-marih in the county of in England may receive light and direc. Kent, a vract containing 24,000 acres, tion. (4. Inft. 276.) is governed by certain antient and equi. u Cro. Jac. 336. iable laws of sewers, composed by Hen- v Moor 825. 826. See pag. 55. ry de Bathe, a venerable judge in the w Milt. parad, loft. iv. 393. zriga of king Henry the third ; from
« tion « tion 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 assurance, when fubfifting, is erected in pursuance of the statute 43 Eliz. c. 12. which tecites the immemorial usage of policies of assurance, “ by “ means whereof it cometh to 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 6 more willingly and more freely : and that heretofore such « assurers had used to stand fo 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 mere « chants appointed by the lord mayor of the city of London ; « as men by reason of their experience fittest to understand 6 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 s 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 merchandize y, and to suits brought by the assured only, and not by the insurers?; no such com* 1 Ventr. 66. Salk, 146.
y Style 166. z Show. 396,