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trial of crimes. (See 4th book as to the limi. of the state. tations of their power).
There is no Ecclesiastical Court in the state; The surrogate of each county is also consti. the powers of such courts, so far as they relato tuted a court, and has cognizance of all mat- to the estates of deceased persons, are executed fers concerning the estates of deceased per. by the surrogate : so far as they concern di
vorces, are executed by the Court of Chance Courts Martial are also appointed annually ry. (See the Revised Statutes of New-York) in the manner directed by law for the militia
OF THE PUBLIC COURTS OF COMMON LAW
We are next to consider the several species and distinctions of courts of justice, which are acknowledged and used in this kingdom. And these are, either such as are of public and general jurisdiction throughout the whole realm ; or such as are only of a private and special jurisdiction in some particular parts of it. Of the former there are four sorts ; the universatiy established courts of cominon law and equity; the ecclesiastical courts ; the courts military; and courts maritime. And, first, of such public courts as are courts of common law and equity.
The policy of our ancient constitution, as regulated and established by the great Alfred, was to bring justice home to every man's door, by constituting as many courts of judicature as there are manors and townships in the kingdom; wherein injuries were redressed in an easy and expeditious manner, by the suffrage of neighbours and friends. These little courts, however, communicated with others of a larger jurisdiction, and those with others of a still greater power ; ascending gradually from the lowest to the supreme courts, which were respectively constituted to correct the errors of the inferior ones, and to determine such causes as by reason of their weight and difficulty demanded a more solemn discussion. *The course of justice flowing in large streams from the [*31 ] king, as the fountain, to his superior courts of record ; and being then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed. An institution that seems highly agreeable to the dictates of natural reason, as well as of more enlightened policy ; being equally similar 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 Moses. In Mexico "each town and province had its proper judges, who heard and decided causes, except when the point in litigation was too intricate for their determination ; and then it was remitted to the supreme court of the empire, established in the capital, and consisting of twelve judges (a). Peru, according to Garcilasso de Vega (an historian descended from the ancient Ineas of that country), was divided into small districts containing ten fainilies each, all registered and under one magistrate ; who had authority to decide litile differences and punish petty crimes. Five of these composed a higher class of fifty families; and two of these last composed another called a hundred. Ton hundreds constituted the largest division, consisting
(a) Mad. Un. Hist. XXXVİÜ. 469.
of a thousand families ; and each division had its separate judge or magiga trate, with a proper degree of subordination (). In like manner we read of Moses, that, finding the sole administration of justice too heavy for him, he “chose able men out of all Israel, such as feared God, men of truth, hating covetousness; 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 seasons; the hard causes they brought unto Moses ; but every small matter they judged themselves (c).” These inferior courts, at least the name and form of them, still continue in our legal constitution : but as the superior courts of record have in practice obtained a concurrent original jurisdiction with these ; and as there is, besides, a power of removing plaints or actions thither from all the inferior jurisdic
tions; upon these accounts (amongst others) it has happened that [*32] *these petty tribunals have fallen into decay, and almost into ob
livion ; whether for the better or the worse, may be matter of some speculation, when we consider on the one hand the increase of expense and delay, and on the other the more able and impartial decision, that follow from this change of jurisdiction.
The order I shall observe in discoursing on these 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 lowest, and those whose jurisdiction, though public and generally dispersed throughout the kingdom, is yet (with regard to each particular court) confined to very narrow limits ; and so ascending gradually to those of the most extensive and transcendent power.
I. The lowest, and at the same time the most expeditious, court of justice known to the law of England, is the court of piepoudre, curia pedis pulverizati ; so called from the dusty feet of the suitors; or, according to sir Edward Coke (d), because justice is there done as speedily as dust can fall from the foot upon the same principle that justice among the Jews was administered in the gate of the city (e), that the proceedings might be the more speedy, as well as public. But the etymology given us by a learned modern writer (f) is much more ingenious and satisfactory ; it being derived, according to him, from pied puldreaux, (a pedlar, in old French), and therefore signifying the court of such petty chapmen as resort 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 has the toll of the market, is the judge ; and its jurisdiction extends to administer justice 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 compass of one and the same day, unless [*33] the fair continues longer. The court hath cognizance of "all mat
ters of contract that can possibly arise within the precinct of that fair or market; and the plaintiff must make oath that the cause of an action arose there (g). From this court a writ of error lies, in the nature of an appeal, to the courts at Westminster (h); which are now also bound by the statute 19 Geo. III. c. 70, to issue writs of execution, in aid of its process, after judgment, where the person or effects of the defendant are not within the limits of this inferior jurisdiction; which may possibly oce
(b) Mod. Un. Hist. xdir. 14
(5) Barrington's observat. 'n the stat. 337
casion tne revival of the practice and proceedings in these courts, which are now in a manner, forgotten. The reason of their original institution seems to have been, to do justice expeditiously among the variety of persons that resort from distant places to a fair or market; since it is probable that no other inferior court might be able to serve its process, or execute its judgments, on both, or perhaps' either of the parties; and therefore unless this court had been erected, the complainant must necessarily have resorted, even in the first instance, w some superior judicature.
II. The court-baron is a court incident to every manor in the kingdom, to be holden by the steward within the said manor.
This court-baron is of two natures (2): the one is a customary court, of which we formerly spoke (k), appertaining entirely to the copyholders, in which their estates are transferred by surrender and admittance, and other matters transacted 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 sometimes anciently called (1): for that it is held before the freeholders who owe suit and service to the manor, the steward being rather the registrar than the judge. These courts, though in their nature distinct, are frequently confounded together. The court we are now considering, viz. the freeholders' court, was composed of the lord's tenants, who were the pares of each other, and were bound by their feodal tenure to assist their lord in the dispensation of domestic justice. This was formerly held every three weeks; and its most important business is to determine, by writ of right, all controversies relating to the right of lands within the manor. It may also hold plea of any personal actions, of debt, trespass on the case, or the like, where the debt or damages do not amount to forty shillings (1); which is the same sum, or [*34 ] three marks, that bounded the jurisdiction of the ancient Gothic courts in their lowest instance, or fierding-courts, so called, because four were instituted within every superior district or hundred (m). But the proceedings on a writ of right may be removed into the county-court by a precept from the sheriff called a tolt (r), “ quia tollit atque eximit causam e curia baronum ().” And the proceedings in all other actions may moved into the superior courts by the king's writs of pone (p), or accedas ad curiam, according to the nature of the suit (9). After judgment given, a writ also of false judgment (7) 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 a manor. The free suitors are here also the judges, and the steward the registrar, as in the case of court-baron. It is likewise no court of record ; resembling the former in
(1) Co. Litt. 58.
(0) 3 Rep. pref.
(1) All the freeholders of the king were the more obvious explanation of the courtcalled barons ; but the Editor is not aware that baron, that it was the court of the baron or 11 appears from any authority that this word lord of the manor, to which his freeholden was ever applied to those who held freeholds owed suit and service. In like manner, no of a subject. See an account of the ancient say the king's court, and the sheriff's court. barons, ante 1 book, 399. n. 5. It seems to be Vol. II.
(4) See Hov. n. (4) at the end of the Vol. B. III.
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 (t); 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 after¡ *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 handredcourts 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. “Eliguntur in conciliis et principes, qui jura per pagos vicosque reddunt: centeni singulis, ex plebe comites, consilium simul et auctoritas absunt (x).” 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 into 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 (a).
(w) de Bell. Gall. 1. 6, c. 22.
(y) Stiernhook, 1. 1, c. 3. fu) Centeni es singulis pagis sint, idque ipsum inter suos vocantur ; el, quod primo numerus fuit,
() Finch. L. 243. 4 Inst. 207.
(2) de Morib. German. c. 13.
(3) 4 Inst. 266.
rum nomen et honor cst. 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 ty, 7 vol. 5 ; 4 Inst. 266. No action can be are by justices. Com. Dig. County C.5. The brought in the county.court, unless the cause writ of justices does not, however, cscept 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 som 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. & 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. ed in county.court. ! B. & A. 223. But it may be recorered in this court. Corn. 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, 1 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 the county court, no jurisdiction over trespasses laid to have and ihus, ultimately, execution against the been committed vi et arnis, per Ld. Kenyon, person may be of tained. Greenwood va
T. R. 38; because the county-court, not Courts, 22. Finch 318 P.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. ; whicà affidavit is now unac countably disused (6), except in the court of excenter (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 triling value. The county-court may also hold plea of many real actions, and of all personal actions 1 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 (c). The freeholders or the county are the real judges in this court, and the sheriff is the ministerial officer. The great conflux of freeholders, which are supposed always to attend at the county-court (which Spelman calls forum plebeiae justiciae ei 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 formerl: 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 adjoured 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 septımdr: rin frequentem populi concionem celebrato: cuique jus dicito; litesque singulas derimito." 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 recorduri (g), 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 jurisdiction, and confined to particular districts: yet communicating with,
(6) 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. (c) Finch. 318. F. N. B. 152.
(g) F. N. B. 70. Finch. 445. (d) Gloss. 1. comitatus.
(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 may declaration, 3 Burr. 1592; or is admitted by by affidavit shew that the debt exceeds 40., OR the plaintiff, or his attorney, 2 Bla. Rep. 754: that the defendant resided out of the juris. 'ie. or 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. ender 40s and the plaintiff may recover it in an & P. 75. i Dowl. & R. 359. inferior jurisdiction whey will stay the pro
(5) See lov (5) at the end of the Vol. B. MI