« AnteriorContinuar »
all points, except that in point of territory it is of greater jurisdiction (s) This is said by sir Edward Coke to have been derived out of the countycourt for the ease of the people, that they might have justice done to them at their own doors, without any charge or loss of time (e); but its institution was probably coeval 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 ancient Germans. The centeni, we may remember, were the principal inhabitants of a district composed
of different villages, originally in number a hundred, but after1 *35) wards only called by that name (u); and who probably gave the
same denomination to the district out of which they were chosen. Cæsar speaks positively of the judicial power exercised in their hundredcourts and courts-baron. “ Principes regionum atque pagorum” (which we may fairly construe, the lords of hundreds and manors), “ inter suos jus dicunt, controversiasque minuunt (w)." And Tacitus, who had examined their constitution still more attentively, informs us not only of the authority of the lords, but that of the centeni, the hundredors, or jury; who were taken out of the common freeholders, and had themselves a share in the determination. “Elignntur in conciliis et principes, qui jura per pagos vicosque reddunt: centeni singulis, ex plebe comites, consilium simul et auctoritas absunt ().” This hundred-court was denominated haereda in the Gothic constitution (y). But this court, as causes are equally liable to remova: 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 inte equal disuse with regard to the trial of actions.
IV. The county-court (2) is a court incident to the jurişdiction of the sheriff. It is not a court of record, but may hold 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 (@). (s) Finch. L. 243. 4 Inst. 287.
(w) de Bell. Gall. 1. 6, c. 22. (!) 2 Inst. 71. (v) Rook I. p. 116.
(y) Stiernhook, I. I, c. 2. (u) Centeni ez singulis pagis sunt, idque ipsum inler suos vocantur ; et, quod primo numerus fuit,
(z) de Morib. German. c. 13.
(3) 4 Inst. 266.
ium nomen et honor est.
Tac. de Mor. Germ. c. 6.
(2) As to the county-court in general, see being a court of record, cannot fine the de Com. Dig. County.courts, B. 3; Bac. Ab. fendant. Com. Dig. County C. 8. But it is Court, County-court; Vin Ab. Court, Coun. said to be otherwise, when the proceedings ły, 7 vol. 5; 4 Inst. 266. No action can be are by justices. Com. Dig. County C.5. The torought in the county.court, anless the cause writ of justices does not, however, except in of action arose, and the defendant reside, with this instance, and as respects the amount of in the county; and if that be not the case, the the debt, enlarge the sheriff's jurisdiction. i action may be brought in the superior court, Lev. 253. Vin. Ab. Court, County D. a. 2 pl. although for a sum less than 40s.: for if no 6. An entire debt, exceeding 40s. cannot be action can be brought in the inferior jurisdic. split, so as to be sued for in this court, nor can tion for so small a debt, the plaintiff is not the creditor falsely acknowledge satisfaction therefore to lose it. Per Ld. Kenyon, 6 T. R. of a part, so as to proceed for the rest. 2 Inst. 175. 8 T. R. 235. i Bos. &.P. 75. 1 Dowl. 312. Palm. 564. Com. Dig. County C. 8. 2 & R. 359. So if the contract be made on the Rol. a. 317. pl. 1. But where the debt has high seas, as for wages, it cannot be recover really been reduced, ly payments, under 40s. od in county.court. 1 B. & A. 223. But it may be recorered in this court. Com. Dig. the non-residence of the plaintiff within the County C. 8. See 1 B. & P. 223, 4. No jurisdiction constitutes no objection at common capias against the person can issue out of this law to his proreeding in the county.court, I court, Com. Dig. County C. 9; and therefore East, 352 · though in some local courts of re. if the defendant has no goods, the plaintiff is quest, constituted by particular statutes, both without remedy there ; but an action may at plaintiff and defendant must reside within the common law be brought in the superior courts, 'urisdiction. 8 T. R. 236. This court has on a judgment obtained in thc county court, no jurisdiction over trespasses laid to have and thus, ultimately, execution against the been committed vi et armis, per Ld. Kenyon, person may be of tained. Greenwood ya s T. R. 38; because the county.court, not Courts, 22.' Finch 318 F. N. B 152
* jurisdiction totally exclusive of the king's superior courts. For in order to be entitled 10 sue an action of trespass for gonds before the king's justiciars, the plaintiff is directed to make affidavit that the cause of acuon does really and bona fide amount to 40s. ; whichi affidavit is now unac countably disused (6), except in the court of exczenner (3). The statute also 43 Éliz. c. 6. which gives the judges in many personal actions, where the jury assess less damages than 40s. à power to certify the same and abridge the plaintiff of his full costs, was also meant [*36] to prevent vexation by litigious plaintiffs ; who, for purposes of mere oppression, might be inclinable to institute suits in the superior courts for injuries of a trifling value. The county court may also hold plea
of many real actions, and of all personal actions on any amoun: by virtue of a special writ called a justicies; 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 Westminster (©). The freeholders o the county are the real judges in this court, and the sheriff is the ministerial officer. The great conflux of freeholders, which are supposed alwaye to attend at the county-court (which Spelman calls forum plebeiae justiciae et theatrum comitivae potestatis) (d), is the reason why all acts of parliament at the end of every session were wont to be there 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 countycourt. 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 ancient usage, as appears from the laws of king Edward the elder (e); " praepositus (that is, the sheriff) ad quartam circiter septımdruh frequentem populi concionem celebrato: cuique jus dicito; litesque singulas dirimito." In those times the county.court was a court of great dignity and splendour, the bishop and the earldorman (or earl) with the principal men of the shire sitting therein to administer justice both in lay and ecclesiastical causes (S). But its dignity was much impaired, when the bishop was prohibited and the earl neglected to attend it. And, in modern times, as proceedings are removable from hence into the king's superior courts, by writ of pone or recordari (&), in the same manner as from hundred-courts, and courts-baron ; and as the same writ of false [*37] 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 ju. risdiction, and confined to particular districts: yet communicating with, (0) 2 Inst. 391. 3 T. R. 363. Bac. Ab. Court of
(e) c. 11. King's Bench, A. 2.
1) L. L. Eadgari. e. 5.
(8) F. N. B. 70. Finch. 445. (d) Gloss. e. comitatus.
(c) Finch. 318.
F. N. B. 152.
(3) And in any of the superior courts, when ceedings, it being below their dignity to pro the debt sued for appears on the face of the ceed in such action. But the plaintiff war declaration, 3 Burr. 1592 ; or is admiued ly by affidavit shew that the debt exceeds 40., • the plaintiff, or his attorney, 2 Bla. Rep. 754; that the defendant resided out of the juris.'eor proved by an affidavit of the defendant. 4 T. tion, which will retain the cause in the suje R. 495 5 id. 64. Tidd. Prac. 8 ed. 565. to be rior court. 6 T.R. 175. 8 T. R. 235. IB. onder 40and the plaintiff may recorer it in an & P. 75. 1 Dowl. & R. 359. inferior jurisdiction Whey will stay the pro
(5) See lov n (5) at the end of the VoL B. DI
ana as it we je members of, the superior courts of a more extended and general r ature ; which are calculated for the administration 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 ancient Saxon constitution, there was only one superior court of justice in the kingdom ; and that court had cognizance both of civil and spiritual causes : viz. the wittena-gemole, or general council, which assembled 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 conquest the ecclesiastical jurisdiction was 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 (h), and other ancient authors, aula 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 constable and lord mareschal, who chiefly
presided in matters of honour and of arms; determining according to the law military and the law of nations. Besides these, chere were the
lord high steward, and lord great chamberlain ; the steward of the [*38] household ; the lord chancellor, whose peculiar *business it was to
keep the king's seal, and examine all such writs, grants, and let ters, 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 officers were assisted 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 seat in the aula regia, and formed a kind of court of appeal, or rather of advice, in matters of great moment and difficulty. All these in their several departments transacted all secular business both criminal and civil, and likewise the matters of the reveque : and over all presided one special magistrate, called the chief justiciar, or capitalis justiciarius totius Angliæ ; 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 him (i).
This great universal court being bound to follow the king's household ir a.) his progresses and expeditions, the trial of common causes therein was found very burthensome to the subject. Wherefore king John, who dreaded
, also the power of the justiciar, very readily consented to that article which now forms the eleventh chapter of magna carta, and enacts, nia placita non sequantur curiam regis, sed teneantur in aliquo loco certo." This certain place was established in Westminster-hall, the place where the aula regis originally sat, when the king resided in that city; and there it hath ever since continued. And the court being thus rendered fixed and atationary, the judge became so too, and a chief
with other justices of the common pleas was thereupon appointed; with jurisdiction to hers and do14.1, 4.1.
(0) Spelm GI. 331, 2, 3. Gilb His. c.ntrod.
" that commu
termine 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 [*39} place, gave rise to the inns of court in its neighbourhood ; and thereby collecting together the whole body of the common lawyers, ena. bled 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
1302 fixed the parliament of Paris to abide constantly in that metropolis ; which before used to follow the person of the king wherever he went, and in which he himself used frequently to decide the causes that were there dopending; but all were then referred to the sole cognizance of the parliament and its learned judges (k). And thus also in 1495 the emperor Maximilian 1. fixed the imperial chamber (which before always travelled with the court and household) to be constantly held at Worms, from whence it was afterwards translated to Spire (1).
The aula regia being thus stripped of so considerable a branch of its jurisdiction, and the power of the chief justiciar being also considerably curbed by many articles in the great charter, the authority of both began to decline apace under the long and troublesome reign of king Henry Ill. And, in further pursuance of this example, the other several officers of the chief justiciar were under Edward the First (who new-modelled the whole frame of our judicial polity) subdivided and broken into distinct courts of judicature. A court of chivalry was erected, over which the constable and mareschal presided ; as did the steward of the household over another, constituted to regulate the king's domestic servants. Le high steward, with the barons of parliament, formed an august tribunal or the trial of delinquent peers; and the barons reserved to themselves in parliament the right of reviewing the sentences of other courts in the last resort. The distribution of common justice between man and man was thrown into so provident an order, that the great judicial officers were made to form a check upon each other : the court of chan- [ *40 ) cery issuing all original writs under the great seal to the other courts ; the common pleas being allowed to determine all causes between private subjects ; the exchequer managing the king's revenue ; and the court of king's bench retaining all the jurisdiction which was not cantoned out to other courts, and particularly the superintendence of all the rest by way of appeal ; and the sole cognizance of pleas of the crown or criminal causes. For pleas or suits are regularly divided into two sorts : pleas of the crown, which comprehend all crimes and misdemeanors, wherein the king (on behalf of the public) is the plaintiff; and common pleas, which include all civil actions, depending between subject and subject
. The former of these were the proper object of the jurisdiction of the court of king's bench; the latter of the court of common pleas: which is a court of re cord, and is styled by sir Edward Coke (m) the lock and key of the comnon law; for herein only can real actions, that is, actions which concern the right of freehold or the realty, be originally brought: and all other, or personal, pleas between man and man, are likewise here determined ; sbrugh in most of them the king's bench has also a concurrent authority (4)
(,) See Book I. introd. 6 1. (*) Mod. Un. Hist. xxiii. 296. (4) The juri sdiction of each court is so well established, that at this day the court of king i
61 See ftov n. (6) at the end of the Vol. B. III.
(1) Ibid. xxix. 46.
I he judges of this court are at present (n) four in number, one chief and
an appeal, lies from this court into the court of king's bench.
used formerly to sit there in person (o), the style of the court still
This court, which (as we have said) is the remnant of the aula regia, is
(n) King James I. during the greater part of his causes in person in the aula regia. “In curia
(9) 4 Inst. 71.
() M. 20. 21 Edw. I. Hale Hist. C. L. 200 (p) See Book I. ch. 7. The king used to decido
(0) 4 Inst. 73.
bench cannot be authorized to determine a he was then a very young man, it is probable
charta, c. 29. nec super eum ibimus nec super
46. But that this is an erroneous construction (6) Lord Mansfield, in 2 Burr.851. does not of these words, appears from a charter granted mean to say, nor do the records there ciled by king John in the 16th year of his reign, warrant the conclusion, that Edw. I. actually which is thus expressed : nec super eos per vim sat in the king's bench. Dr. Henry, in his vel per arma ibimus nisi per legem regni nostri very accurate History of Great Britain, ir- vel per judicium parium suorum. See Int. to forms us, that he has found no instance of any Bl. Mag. Ch. p. xiii. Statutes and chaters in of our kings sitting in a court of justice before pari materia must be construed by a reterence Edw. IV. "And Edw. IV. (he says) in the to each other, and in the more ancient charter second year of his reign, sat three days to the meaning is clear, that the king will not zether, during Michaelmas term, in the art proceed with violence agaiı st his subjects of king's bench; but it is not said that he in. unless justified by the law of his kingdom, or erfered in the business of the court; and as by a judgment of thei peers.
(7) See Hov. n. (7) at the end of the Vol. B. JIJ