CHAPTER THE FOURTH.

OF THE PUBLIC COURTS OF COMMON LAW AND EQUITY.

W

E are next to confider the several species and diftinctions of courts of juftice, which are acknowleged and used in this kingdom. And these are either such as are of public and general jurifdiction throughout the whole realm; or such as are only of a private and special jurisdiction in fome particular parts of it. Of the former there are four forts; the universally established courts of common law and equity; the ecclefiaftical courts; the courts military; and 'courts maritime. And, firft, of fuch public courts as are courts of common law and equity.

THE policy of our ancient conftitution, as regulated and established by the great Alfred, was to bring juftice home to every man's door, by conftituting as many courts of judicature as there are manors and townships in the kingdom; wherein injuries were redreffed in an eafy and expeditious manner, by the fuffrage of neighbours and friends. Thefe little courts however communicated with others of a larger jurisdiction, and thofe with others of a ftill greater power; afcending gradually from the lowest to the fupreme courts, which were respectively

7

refpectively conftituted to correct the errors of the inferior ones, and to determine fuch caufes as by reafon of their weight and difficulty demanded a more folemn difcuffion. The courfe of juftice flowing in large ftreams from the king, as the fountain, to his fuperior courts of record; and being then fubdivided into fmaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed. An inftitution that feems highly agreeable to the dictates of natural reafon, as well as of more enlightened policy; being equally fimilar to that which prevailed in Mexico and Peru before they were discovered by the Spaniards, and to that which was established in the Jewish republic by Mofes. In Mexico each town and province had it's proper judges, who heard and decided caufcs, except when the point in litigation was too intricate for their determination; and then it was remitted to the fupreme court of the empire, established in the capital, and confifting of twelve judges. Peru, according to Garcilaffo de Vega, (an hiftorian defcended from the antient Incas of that country) was divided into fmall diftricts containing ten families each, all regiftred, and under one magistrate; who had authority to decide little differences and punish petty crimes. Five of these compofed a higher clafs of fifty families; and two of thefe laft compofed another called a hundred. Ten hundreds conftituted the largest divifion, confifting of a thousand families; and each divifion had it's feparate judge or magistrate, with a proper degree of subordination. In like manner we read of Mofes, that, `finding the fole administration of justice too heavy for him, he "chose able men out of all Ifrael, fuch as feared God, men "of truth, hating covetoufness; and made them heads over "the people, rulers of thousands, rulers of hundreds, rulers "of fifties, and rulers of tens: and they judged the people "at all feafons; the hard caufes they brought unto Mofes, "but every finall matter they judged themfelves." Thefe inferior courts, at least the name and form of them, ftill continue in our legal conftitution: but as the fuperior courts of

a Mod, Un. Hift. xxxviii. 469.

Ibid. xxxix. 14.

c Exod. c. 1S.

record

32

PRIVATE

BOOK III.

record have in practice obtained a concurrent original jurif diction with thefe; and as there is befides a power of removing plaints or actions thither from all the inferior jurifdictions; upon these accounts (among others) it has happened that these petty tribunals have fallen into decay, and almoft into oblivion: whether for the better or the worse, may be matter of some speculation; when we confider on the one hand the increase of expenfe and delay, and on the other the more able and impartial decifion, that follow from this change of jurisdiction.

THE order I fhall obferve in difcourfing on thefe several courts, constituted for the redress of civil injuries (for with those of a jurisdiction merely criminal I shall not at present concern myself) will be by beginning with the loweft, and thofe whofe jurifdiction, though public and generally dif perfed throughout the kingdom, is yet (with regard to each particular court) confined to very narrow limits; and fo afcending gradually to those of the most extensive and tranfcendent power.

I. THE lowest, and at the fame time the most expeditious, court of juftice known to the law of England is the court of piepoudre, curia pedis pulverizați: so called from the dusty feet of the fuitors; or according to fir Edward Coked, because juftice is there done as speedily as duft can fall from the foot. Upon the fame principle that juftice among the Jews was administered in the gate of the city, that the proceedings might be the more speedy as well as public. But the etymology given us by a learned modern writer is much more ingenious and fatisfactory; it being derived, according to him, from pied puldreaux (a pedlar, in old French) and therefore fignifying the court of fuch petty chapmen as refort to fairs or markets. It is a court of record, incident to every fair and market; of which the steward of him, who owns or

d

4 Inst. 272.

Ruth. c. 4.

f Barrington's obfervat. on the ftat. 337.

has the toll of the market, is the judge: and it's jurisdiction extends to adminifter juftice for all commercial injuries done in that very fair or market, and not in any preceding one. So that the injury must be done, complained of, heard, and determined, within the compafs of one and the fame day, unless the fair continues longer. The court hath cognizance of all matters of contract that can poffibly arife within the precinct of that fair or market; and the plaintiff muft make oath that the cause of an action arose theres. From this court a writ of error lies, in the nature of an appeal, to the courts at Weftminfter; which are now also bound by the statute 19 Geo. III. c. 70. to iffue writs of execution, in aid of its process, after judgment, where the perfon or effects of the defendant. are not within the limits of this inferior jurifdiction; which may possibly occafion the revival of the practice and proceedings in thefe courts, which are now in a manner forgotten. The reafon of their original institution seems to have been, to do justice expeditiously among the variety of persons, that refort from diftant places to a fair or market: fince it is probable that no other inferior court might be able to ferve it's procefs, or execute it's judgments, on both or perhaps either of the parties; and therefore, unless this court had been erected, the complaint muft neceffarily have reforted even in the first instance to fome fuperior judicature.

II. The court-baron is a court incident to every manor in the kingdom, to be holden by the steward within the faid manor. This court-baron is of two natures: the one is. a customary-court, of which we formerly spoke *, appertaining entirely to the copyholders, in which their cftates are transferred by furrender and admittance, and other matters tranfacted relative to their tenures only. The other, of which we now speak, is a court of common law, and it is the court of the barons, by which name the freeholders were fometimes antiently called: for that it is held before the free

Stat. 17 Edw. IV. c. 2.

Cro. Eliz. 773.

-VOL. III.

C

i Co. Litt. 58.

k Book II. ch. 4. ch. 6. and ch.22.
holders

holders who owe fuit and fervice to the manor, the fteward being rather the registrar than the judge. These courts, though in their nature diftinct, are frequently confounded together. The court we are now confidering, viz. the freeholder's court, was compofed of the lord's tenants, who were the pares of each other, and were bound by their feodal tenure to affift their lord in the difpenfation of domestic justice. This was formerly held every three weeks; and it's most important business is to determine, by writ of right, all controverfies relating to the right of lands within the manor. It may alfo hold plea of any perfonal actions, of debt, trefpafs on the cafe, or the like, where the debt or damages do not amount to forty fhillings'; which is the fame fum, or three marks, that bounded the jurifdiction of the antient Gothic courts in their lowest inftance, or fierding-courts, fo called, because four were instituted within every superior district or hundred. But the proceedings on a writ of right may be removed into the county court by a precept from the sheriff called a tolt", " quia tollit atque eximit caufam e curia baronim And the proceedings in all other actions may be removed into the fuperior courts by the king's writs of pone P, or accedas ad curiam, according to the nature of the fuit . After judgment given, a writ also of false judgment ▾ lies to the courts at Westminster to rehear and review the 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 direction, given is to cause the plaint to be recorded, recordari facias loquelam.

III. A HUNDRED court is only a larger court-baron, being held for all the inhabitants of a particular hundred instead of The free fuitors are here alfo the judges and the fteward the regiftrar, as in the cafe of a court-baron. It is

a manor.

1 Finch. 248.

m Stiernhook de jure Goth. 1. 1. c. 2. n F.N.B.3,4. See append. N-.1.§.2. • 3 Rep. pref.

P See append. No. I. §. 3.

9 F. N. B. 4. 70. Finch.L.444,445. r F. N. B. 18.

likewife