ftatute 23 Hen. VIII. c. 5. Their jurifdiction is to overlook the repairs of fea banks and fea walls; and the cleanfing of rivers, public streams, ditches and other conduits, whereby any waters are carried off: and is confined to fuch county or particular district as the commiffion fhall expressly name. The commiffioners 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 fafeguard and confervation of the fewers within their commiffion, either according to the laws and customs of Romneymarsh, or otherwife at their own difcretion. They may also affefs fuch rates, or fcots, upon the owners of lands within their district, as they fhall judge neceffary: and, if any person refuses to pay them, the commiffioners may levy the fame by diftrefs of his goods and chattels; or they may, by ftatute 23 Hen. VIII. c. 5. fell his freehold lands (and by the 7 Ann. c. 10. his copyhold also) in order to pay such ' [74] fcots or affeffments. 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 profecuted against the commiffioners, unless before that board; and committed several to prison who had brought fuch 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 meafures was no other than the tyrant's plea", of the necessity of unlimited powers in works of evident utility to the public, "the fupreme reason above all reasons, which is the salva $ 1 Sid. 145. Romney-marsh in the county of Kent, a tract containing 24,000 acres, is governed by certain antient and equitable laws of fewers, compofed by Henry de Bathe, a venerable judge in the reign of king Henry the third; from which laws all commiffioners of fewers v Moor 825.826. See pag. 55. "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 *. III. THE Court of policies of affurance, when fubfifting, is erected in pursuance of the ftatute 43 Eliz. c. 12. which recites the immemorial ufage of policies of affurance," by "means whereof it cometh to pafs, upon the lofs or perishing "of any ship, there followeth not the undoing of any man, "but the lofs lighteth rather eafily 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 fort, are allured to venture "more willingly and more freely: and that heretofore fuch "affurers had ufed to ftand fo juftly and precifely upon their "credits, as few or no controverfies had arifen thereupon; ❝and if any had grown, the fame had from time to time "been ended and ordered by certain grave and difcreet mer"chants appointed by the lord mayor of the city of London; "as men by reason of their experience fittest to understand " and speedily decide those causes:" but that of late years divers perfons had withdrawn themselves from that course of arbitration, and had driven the affured to bring separate actions at law against each affurer: it therefore enables the lord chancellor yearly to grant a standing commiffion to the [75] 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 ftatute 13 & 14 Car. II. c. 23. empowered to determine in a fummary way all caufes concerning policies of affurance 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 affurances but those on merchandize, and to fuits brought by the affured only, and not by the infurers, no fuch com * Styl, 166, * 1 Ventr. 66. Salk. 146. 7 BOOK III. miffion has of late years iffued: but insurance causes are now ufually determined by the verdict of a jury of merchants, and the opinion of the judges in cafe of any legal doubts; whereby the decifion is more speedy, fatisfactory and final: though it is to be wished, that fome of the parliamentary powers invested in these commiffioners, especially for the examination of witneffes, either beyond the feas or fpeedily going out of the kingdom', could at present be adopted by the courts of Westminster-hall, without requiring the confent of parties. IV. THE Court of the marfbalfea, and the palace court at Westminster, though two diftinct courts, are frequently confounded together. The former was originally holden before the steward and marfhal of the king's house, and was instituted to administer justice between the king's domestic servants, that they might not be drawn into other courts, and thereby the king lose their service. It was formerly held in, though not a part of, the aula regis; and, when that was fubdivided, remained a distinct jurisdiction: holding plea of all trespasses committed within the verge of the court, where only one of the parties is in the king's domestic service, (in which cafe the inquest shall be taken by a jury of the country) and of all debts, contracts and covenants, where both of the contracting parties belong to the royal houshold; and then the inqueft fhall be compofed of men of the houf[76] hold only". By the ftatute of 13 Ric. II. ft. 1. c. 3. (in affirmance of the common law ) the verge of the court in this respect extends for twelve miles round the king's place of refidence f. And, as this tribunal was never fubject to the jurifdiction of the chief jufticiary, no writ of error lay from it (though a court of record) to the king's bench, but only to parliament, till the statutes of 5 Edw. III. c. 2. and 10 Edw. III. ft. 2. c. 3. which allowed fuch writ of error before the king in his place. But this court being ambulatory, and obliged to follow the king in all his progreffes, fo that by the removal of the houshold, actions were frequently difcontinued, and doubts having arisen as to the extent of it's juris dictioni, king Charles I. in the fixth year of his reign by his letters patent erected a new court of record, called the curia palatii or palace court, to be held before the steward of the houfhold and knight marshal, and the steward of the court, or his deputy; with jurisdiction to hold plea of all manner of personal actions whatsoever, which shall arise between any parties within twelve miles of his majesty's palace at Whitehall. The court is now held once a week, together with the antient court of marshalfea, in the borough of Southwark and a writ of error lies from thence to the court of king's bench. But if the cause is of any confiderable confequence, it is usually removed on it's first commencement, together with the cuftody of the defendant, either into the king's bench or common pleas, by a writ of habeas corpus cum causa: and the inferior business of the court hath of late years been much reduced, by the new courts of confcience erected in the environs of London; in confideration of which the four counsel belonging to these courts had falaries granted them for their lives by the ftatute 23 Geo. II. c. 27. V. A FIFTH species of private courts of a limited, though [77] extensive, jurisdiction are those of the principality of Wales; which upon its thorough reduction, and the fettling of it's polity in the reign of Henry the eighth', were erected all over the country; principally by the ftatute 34 & 35 Hen. VIII. c. 26. though much had before been done, and the way prepared by the statute of Wales, 12 Edw. I. and other statutes. By the ftatute of Henry the eighth before-mentioned, courts BOOK III. baron, hundred, and county courts are there established as in England. A feffion is alfo to be held twice in every year in each county, by judges" appointed by the king, to be called the great feffions of the feveral counties in Wales: in which all pleas of real and personal actions shall be held, with the same form of process and in as ample a manner as in the court of common pleas at Westminster": and writs of error shall lie from judgments therein (it being a court of record)to the court of king's bench at Westminster. But the ordinary original writs of procefs of the king's courts at Westminster do not run into the principality of Wales: though process of execution does; as do alfo prerogative writs, as writs of certiorari, quo minus, mandamus, and the like 9. And even in causes between subject and subject, to prevent injustice through family factions or prejudices, it is held lawful (in causes of freehold at least, and it is ufual in all others) to bring an action in the English courts, and try the fame in the next English county adjoining to that part of Wales where the cause arifes, and wherein the venue is laid. But, on the other hand, to prevent trifling and frivolous fuits it is enacted by ftatute 13 Geo. III. c. 51. that in perfonal actions, tried in any English county, where the cause of action arose, and the defendant refides in Wales, if the plaintiff shall not recover a verdict for ten pounds, he fhall be nonfuited and pay the defendant's cofts, unlefs it be certified by the judge that the freehold or title came principally in question, or that the cause was proper to [ 78 ] be tried in fuch English county. And if any transitory action, the cause whereof arose and the defendant is resident in Wales, fhall be brought in any English county, and the plain. tiff shall not recover a verdict for ten pounds, the plaintiff fhall be nonfuited, and fhall pay the defendant's cofts, deducting thereout the fum recovered by the verdict. |