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CHAPTER III.

THE ANCIENT MINOR LOCAL COURTS.

Local Courts.-Court of Pié Poudre.-Jurisdiction of the Cinque Ports.-Court of Chivalry. Stannary Court.-Marshalsea and Palace Court.

THE great centralization of the civil jurisdiction necessitated, at an early period, a recurrence to the co-operation of the local courts. The civil jurisdiction of the sheriff which here anciently prevailed, and the civil and penal jurisdiction of justices of the peace, will be described when treating of local government.

There existed, at an early period, a number of subordinate courts which have now declined, or been abolished, but which should not be passed over in completing our sketch of the English judicial system.

1. The Court of Pié Poudre (Curia pedis pulverisati), so called because they were held in the summer time, and the respective parties came there with travel-stained shoon. It exercised summary jurisdiction in regard to the police of the markets and of trade. As a court of jurisdiction it is now obsolete.*

2. The special jurisdiction of the Cinque Ports (Dover, Sandwich, Romney, Hastings, and Hythe, to which Winchelsea and Rye have been added), was conducted by the mayor and jurats. The ordinary writs of the sovereign had no validity herein.† By the 18 and 19 Vict. c 48, the cinque ports have lost their civil jurisdiction.

3. The old Knights' Court, or Court of Chivalry, is obsolete. It was held by the lord high constable, and determined concerning injuries to life and limb on occasion of jousts and tournaments. Since the time of Strafford, the office and jurisdiction of lord high constable has fallen into decay.‡

4. The Stannary Court of Devonshire and Cornwall (called also the Cornwall Parliament) is still in existence.§ It is founded on an ancient privilege granted to the workers in the tin-mines,

* Cowel, Law Dict.

+ Bl. ii. 79.

Bowyer, 328. § Smollett's Hist. of Eng., 1748.

to sue and be sued in their own court, that they may not be drawn from their business by attending their law-suits in other courts. In matters which concern land, life, and limb, it has no jurisdiction. It is a court of record, and is held before a judge called "the vice-warden."* From this court appeal lies to the lord warden himself, assisted by two or more assessors, members of the Judicial Committee of the Privy Council, or judges of the High Court of Chancery or Court of Common Law at Westminster; and from the lord warden a final appeal to the Judicial Committee. The jurisdiction of this court has been newly regulated by 11 and 12 Vict. c. 83, and 18 and 19 Vict. c. 32.

5. The Court of Marshalsea formerly held plea of all trespasses committed within verge of "the Court," where one of the parties was of the Royal Household; and of all debts and contracts, where both were of that establishment.

6. The Palace Court at Westminster held plea of all personal actions arising within twelve miles of the Palace at Whitehall. Both these courts were abolished by 12 and 13 Vict. c. 101.

* Bl. iii., 79, 80; Kerr's Blackstone, vol. iii., 85.

CHAPTER IV.

THE NEWLY CREATED COURTS.

Divorce Court.-Earlier Legislation concerning Marriage.-Court of Probate.—Wills formerly in the Ecclesiastical Courts.-Administration.-Custody of Wills.Secularization of the Laws concerning Wills.-Central Criminal Court.-Extent of its Jurisdiction.

1. THE Court of Divorce and matrimonial causes was established by 20 and 21 Vict. c. 85. Matrimonial causes had previously pertained to the Ecclesiastical and to the Temporal courts. Prior to this act there were two kinds of divorce, the one a vinculo matrimonii, the other a mensa et thoro; the divorce a vinculo was founded on certain canonical disabilities, and could be obtained from the Ecclesiastical Court; by the sentence the marriage was declared unlawful ab initio ; the issue, if any, became bastards, and the parties could contract another marriage. Divorce a mensâ et thoro was granted where the marriage was lawful ab initio, but for some matters which had since occurred it became improper for the parties to live together; as, where the husband was guilty of gross cruelty, or either of the parties had committed adultery. For any case, supervenient upon the marriage, divorce a vinculo could not be obtained, yet, in the case of adultery it was frequently granted by private Act of Parliament. This mode of procedure was, of course, so expensive, that only wealthy parties could take advantage of it.

The new Divorce Act provides in lieu of the divorce a mensâ et thoro a decree of judicial separation, on the petition of either husband or wife. This decree may be obtained on the ground of adultery or cruelty, or desertion without cause for two years and upwards. A dissolution of the marriage may be procured on the petition of either husband or wife, upon the ground, where the husband is petitioner, that since the marriage, his wife has been guilty of adultery; where the wife is the petitioner, that her husband has, since the marriage, been guilty of incestuous adultery, or bigamy with adultery, or rape, or adultery, coupled

with cruelty. By 22 and 23 Vict. c. 60, in addition to the judges appointed by the Act of 1856,* all the judges, for the time being, of the Court of Queen's Bench, Common Pleas, and Exchequer, respectively, are made judges of the Divorce Court.

The judge of the Court of Probate is styled the Judge Ordinary, and by 20 and 21 Vict. c. 85, was empowered, either alone; or with one or more of the judges of the said court, to hear and determine all matters falling within its jurisdiction, except petitions for the dissolving of, or annulling marriages, and applications for new trials of issues before a jury. These excepted cases are to be heard and determined by three or more of the judges for the said court, of whom the Judge Ordinary shall be one. By the 22 and 23 Vict. c. 60, it is enacted that the Judge Ordinary shall have precedence in the said court next after the Lord Chief Baron of the Exchequer. By 23 and 24 Vict., c. 144, the Judge Ordinary may now alone hear and determine all matters arising within the Court, which formerly could only have been heard and determined before the full court. If deemed expedient the Judge Ordinary may call in the assistance of one of the other judges of the court; he may also, when he thinks it expedient, direct that any such matters, aforesaid, shall be heard before the full court. When exercising the jurisdiction given by this Act, an appeal lies to the full court from the decision of the Judge Ordinary, within fourteen days from the pronouncing thereof. Every decree for a divorce shall, in the first instance, be a decree Nisi, not to be made absolute till after the expiration of not less than three months from the pronouncing thereof. During that period any person is at liberty to show cause why the said decree should not be made absolute, by reason of the same having been obtained by collusion, or by reason of material facts not having been brought before the court. Either party dissatisfied with the decision of the court on any petition for dissolution of marriage, or for nullity of marriage may, within three months from the pronouncing thereof, appeal therefrom to the House of Lords, if Parliament be sitting; or, if Parliament be not sitting at the end of such three months, then within fourteen days next after its meeting. The

*

By this Act the Lord Chancellor, the Lord Chief Justice of the Queen's Bench, the Lord Chief Justice of the Common Pleas, the Lord Chief Baron of the Exchequer, the Senior Puisne Judge for the

time being, in each of the three lastmentioned courts, and the Judge Ordinary, were appointed Judges of the Divorce Court (20 and 21 Vict. c. 85, 8. 8).

Divorce Court is empowered, by 22 and 23 Vict. c. 60, to regulate the allowance to be made for the children, and also, on divorce being decreed, to take measures for their benefit, and consign them to the guardianship of the Court of Chancery.

In the year 1861 there were 187 petitions filed in the Divorce Court for dissolution of marriage, and 49 for judicial separation; 249 judgments were given in the year, but, unfortunately, the return omits to state their nature, so that it is not possible to determine in how many cases man and wife were put asunder. The applications for dissolution of marriage were 244 in 1858, 211 in 1859, 210 in 1860, and 187 in 1861.

2. In the year 1857, jurisdiction, in respect of wills, was withdrawn from the Ecclesiastical Courts, and by 20 and 21 Vict. c. 77, transferred to a new "temporal" court-"the Court of Probate." That the Ecclessiastical Courts should so long have had the control of matters testamentary, was based on historical grounds. To these courts, during the middle ages, were transferred all questions of law relating to matters of religion and conscience. They received jurisdiction over wills on the ground that their exact accomplishment was a matter of conscience and duty and further, because under every will the Church ordinarily obtained some benefaction. The Councils of the Church had repeatedly recommended orphans, widows, and other helpless persons to the protection of the bishops. As the Lord Chancellor was generally an ecclesiastic, he received concurrent jurisdiction with the Ecclesiastical Courts in matters testamentary. The ecclesiastical jurisdiction could only, as a matter of course, extend to the personal property, for the real property, by reason of the feudal bond, was withdrawn from free disposition by will. The power of bequeathing did not extend originally to all a man's personal estate. It appears from Glanville, who wrote in the reign of Henry II., that a man's goods were to be divided into three equal parts, one third passed to his heirs or lineal descendants, another to his wife, and of the rest he could dispose by his will; the shares of the wife and children were called their reasonable parts. If he did not make such a disposition he was said to die intestate, and the king became entitled; afterwards the Crown granted the goods of an intestate to the "Ordinary," who was, generally speaking, the

* Walter, Kirchenrecht, sec. 189.

+ C. iii. 6, 17, X. de testam (3, 26.) Richter, Kirchenrecht, sec. 357.

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