Imágenes de páginas

damus) may issue for the same reason to all these exempt jurisdictions (6); because the privilege, that the king's writ runs not, must be intended bca tween party and party, for there can be no such privilege against the king (c)

VIL The stannary courts in Devonshire and Cornwall, for the administration of justice among the tinners therein, are also courts of record, but of the same private and exclusive nature. They are held before the lord warden and his substitutes, in virtue of a privilege granted to the workers in the tin mines there, to sue and be sued only in their own courts, that they may not be drawn from their business, which is highly protitable to the public, by attending their law-suits in other courts (d). The privileges of the tinners are confirmed by a charter, 33 Edw. I. and fully expounded by a private statute (e), 50 Edw. III. which has since been explained by a public act, 16 Car. I. c. 15. What relates to our present purpose is only this: that all tinners and labourers in and about the stannaries shall, during the time of their working therein bona fide, be privileged from suits of other courts, and be only impleaded in the stannary couri in all matters, excepting pleas of land, life, and member. No writ of error lies from hence to any court in Westminster-hall; as was agreed by all the judges (S) in 4 Jac. I. But an appeal lies from the steward of the court to the under-warden; and from him to the lord-warden ; and thence to the privy council of the prince of Wales, as duke of Cornwall (g): when he hath had livery or investiture of the same (h). And from thence

the appeal lies to the king himself, in the last resort (i). [81] *IX. The several courts within the city of London (j), and

other cities, boroughs, and corporations throughout the kingdom, held by prescription, charter, or act of parliament, are also of the same prie vate and limited species. It would exceed the design and compass of our present inquiries, if I were to enter into a particular detail of these, and to examine the nature and extent of their several jurisdictions. It may in general be sufficient to say, that they arose originally from the javour of the crown to those particular districts, wherein we find them erected, upon the same principle that hundred-courts, and the like, were established; for the convenience of the inhabitants, that they may prosecute their suits and receive justice at home : that, for the most part, the courts at Westminster-hall have a concurrent jurisdiction with these, or else a saperintendency over them (k), and are bound by the statute 19 Geo. III. c. 70. (12) to give assistance to such of them as are courts of record, bv issuing writs of execution, where the person, or effects of the defendant are not within the inferior jurisdiction : and that the proceedings in these special courts ought to be according to the course of the common law, unless otherwise ordered by parliament; for though the king may erect new courts, yet he cannot alter the established course of law.

But there is one species of courts, constituted by act of parliamen, in

(6) 1 Sid. 92.
(c) Cro. Jac. 543.
(d) 4 Inst. 232.
(e) See this at length in 4 Inst. 232.
( 4 Inst. 231.
(g) Ibid. 230.
, 3 Bulstr. 183.
(1) Doderidge, Hist. of Cornw. 94.

The chief of those in London are the sheriffs

courts, holden before their steward or judge ; from which a writ of error lies to the court of husrings, before the mayor, recorder, and sheriffs ; and frorn thence to justices appointed by the kiug's commission, who used to sit in the church of St. Martin le grand. (F. N. B. 32). And from the judgment of those justices a writ of error lies iminediately to the house of lords.

(k) Salk. 144. 263.

(12) The 57 Geo. III c. 101. continued this act. and see cases Tidd's Pras. 8tb ed. 801

che city of London, and other trading and populous districts, which in their proceedings so vary from the course of common law, that they may de serve a more particular consideration. I mean the courts of requests, or courts of conscience, for the recovery of small debts (13). The first of these was established in London, so early as the reign of Henry the Eighth, by an act of their common council; which however was certainly insufficient for that purpose and illegal, till confirmed by statute 3 Jac. I. e. 15. which has since been explained and amended by statute 14 Geo. II. c. 10. (14). The constitution is this: two aldermen, and four commoners, sit twice a week to hear all causes of debt not exceeding the *value of forty shillings; which they examine in a summary [ *82 ] way, by the oath of the parties or other witnesses, and make such order therein as is consonant to equity and good conscience. The time and expense of obtaining this summary redress are very inconsiderable, which make it a great benefit to trade; and thereupon divers trading towns and other districts have obtained acts of parliament, for establishing in them courts of conscience upon nearly the same plan as that in the city of London (15).

The anxious desire that has been shewn to obtain these several acts, proves clearly that the nation in general is truly sensible of the great inconvenience arising from the disuse of the ancient county and hundred courts; wherein causes of this small value were always formerly decided, with very little trouble and expense to the parties. But it is to be feared, that the general remedy which of late hath been principally applied to this inconvenience (the erecting these new jurisdictions) may itself be attended in time with very ill consequences : as the method of proceeding therein is entirely in derogation of the common law; as their large discretionary powers create a petty tyranny in a set of standing commissioners ; and as ihe disuse of the trial by jury may tend to estrange the minds of the people from that valuable prerogative of Englishmen, which has already been more than sufficiently exeluded in many instances. · How much rather is it to be wished, that the proceedings in the county and hundred courts could again be revived, without burdening the freeholders with too frequent and tedious attendances ; and at the same time removing the delays that have insensibly crept into their proceedings, and the power that either party have of transferring at pleasure their suits to the courts at Westminster! And we may with satisfaction observe, that this experiment has been actually tried, and has succeeded in the populous county of Middlesex; which might serve as an example for others. For by statute 23 Geo, II. c. 33, it is enacted, 1. That a special county-court should be beld, at least once a month, in every hundred of the county of *Mid- / *83] dlesex, by the county-clerk. 2. 'That twelve freeholders of that kundred, qualified to serve on juries, and struck by the sheriff, shall be summoned to appear at such court by rotation ; so as none shall be summoned oftener than once a year. 3. That in all causes not exceeding the

(13) See all the acts and cases thereon, re. debt does not exceed 20s. shall be committed ating to courts of requests. ably collected in to prison for more than twenty days, and if the Tidd's Prac. 8 ed. 989 to 996.

debt does not exceed 40s for more than forty (14) The act is still further extended by the days; unless it be proved to the satisfaction 19 & 40 Geo. III. c. 104. See Tidd's Prac. of the court, that he has money or goods whicb

he fraudulently conceals, and in the first case (15) By the 25 Geo. III. c. 45. and 26 Geo. the imprisonment may be extended to thirts m. c. 38. no debtor or defendant, in any court days, and in the latter to sixty. for the recovery of small debts, where the

ded. 989.

value of for y shillings, the county-clerk and twelve suitors shall proceed in a summary way, examining the parties and witnesses on oath, wi'hout the formal process anciently used : and shall make such order therein as they shall judge agreeable to conscience. 4. That no plaints shall be removed out of this court, by any process whatsoever ; but the determination herein shall be final. 5. That if any action be brought in any of the superior courts against a person resident in Middlesex, for a debt or contract, upoi. the trial whereof the jury shall find less than 40s. damages, the plaintiff shall recover no costs, but shall pay the defendant double costs; unless upon some special circumstances, to be certified by the judge who tried it. 6. Lastly, a table of very moderate fees is prescribed and set down in the act; which are not to be exceeded upon any account whatsocver. This is a plan entirely agreeable to the constitution and genius of ihe nation : calculated to prevent a multitude of vexatious actions in the superior courts, and at the same time to give honest creditors an opportunity of recovering small sums; which now they are frequently deterred from by the expense of a suit at law: a plan which, one would think, wants only to be generally known, in order to its universal reception.

X. There is yet another species of private courts, which I must not pass over in silence : viz. the chancellor's courts in the two universities of England (16). Which two learned bodies enjoy the sole jurisdiction, in exclusion of the king's courts, over all civil actions and suits

whatsoever, when a scholar or privileged person is one of the parties; excepting in such cases where the right of freehold is concerned. And these by the university charter they are at liberty to try and determine, either according to the common law of the land, or according to their own local customs, at

their discretion ; which has generally led them to carry on their [ *84] process in a *course much conformed to the civil law, for reasons

sufficiently explained in a former book (1). These privileges were granted, that the students might not be distracted from their studies by legal process from distant courts, and other forensic avocations. And privileges of this kind are of very high antiquity, being generally enjoyed by all foreign universities as well as our own, in consequence (I apprehend) of a constitution of the emperor Frederick, A. D. 1158 (m). But as to England in particular, the oldest charter that I have

(1) Book I. introd. ( 1.

(m) Cod. 4, tit. 13.

(16) As the object of the privilege is, that claim of the vice-chancellor on behalf of the students and others connected with the uni. chancellor, masters, and scholars of the uni. versities should not be distracted from the versity, entered on the roll in due form, setstudies and duties to be there performed, the ting out their jurisdictions under charters con party proceeded against must in general be a formed by statute, and averring that the cause resident member of the university, and that of action arose within such jurisdiction. 12 fact must be expressly sworn, or be collected East, 12. And claim of conusance by the from the affidavit. The privilege of Cam- university of Oxford was allowed in an action bridge differs from that of Oxford: in the for- of trespass in K. B. against a proctor, a promer, it only extends to causes of action accru- proctor, and the marshal of the university; ing in the town and its suburbs ; but in Ox. though the affidavit of the latter, describing ford it extends to all personal causes arising him as of a parish in the suburbs of Oxford, any where. R. T. Hardw. 241. 2 Wils. 406. only verified that he then was, and had been Bac. Ab. Universities. The claim of conu. for the last fourteen years, a common servant sance must be mnade in due form, and in due of the university, called marshal of the univer time. 2 Wils. 406. Claim of conusance of sity, and that he was sued for an act done by an action of trespass, brought in K. B. against him in the discharge of his duty, and in obe a resident member of the university of Cam. dience to the orders of the other two defend widge, for a cause of action verified by affida- ants, without stating that he resided within vit not to nave arisen within the town and sub. the university, or was matriculated. 15 Eas: urbs of Cambridge, was allowed upon the 634.


seen, containing this grant to the university of Oxford, was 28 Hen. III. A. D. 1244. And the same privileges were confirmed and enlarged by almost every succeeding prince, down to Henry the Eighth; in the fourteenth year of whose reign the largest and most extensive charter of all was granted. One similar to which was afterwards granted to Cambridge in the tkird year of queen Elizabeth. But yet, notwithstanding these charters, the privileges granted therein, of proceeding in a course different from the law of the land, were of so high a nature, that they were held to be invalid; for though the king might erect new courts, yet he could not alter the course of law by his letters patent. Therefore in the reign of queen Elizabeth an act of parliament was obtained (r), confirming all the charters of the two universities, and those of 14 Hen. VIII. and 3 Eliz. by

Which blessed act, as sir Edward Coke entitles it (o), established this high privilege without any doubt or opposition (p): or, as sir Matthew Hale (9) very fully expresses the sense of the common law and the

operation of the act of parliament, " although king Henry the Eighth, 14 A. R. sui, granted to the university a liberal charter, to proceed according to the use of the university ; viz. by a course much conformed to the civil law, yet that charter had not been sufficient to have warranted such proceedings without the help of an act of parliament. And therefore in 13 Eliz. *an act passed, whereby that charter was in effect enact- 1 *85 ] ed; and it is thereby that at this day they have a kind of civil law procedure, even in matters that are of themselves of common law cognizance, where either of the parties is privileged."

This privilege, so far as it relates to civil causes, is exercised at Oxford in the chancellor's court; the judge of which is the vice-chancellor, his deputy or assessor. From his sentence an appeal lies to delegates appointed by the congregation ; from thence to other delegates of the house of convocation ; and if they all three concur in the same sentence it is final at least by the statutes of the university (r), according to the rule of the civil law (s). But, if there be any discordance or variation in any of the three sentences, an appeal lies in the last resort to judges delegates appointed by the crown under the great seal in chancery.

I have now gone through the several species of private, or special courts, of the greatest note in the kingdom, instituted for the local redress of private wrongs; and must, in the close of all, make one general observation from sir Edward Coke(): that these particular jurisdictions, derogating from the general jurisdiction of the courts of common law, are ever strictly restrained, and cannot be extended farther than the express letter of their privileges will most explicitly warrant (17).

(*) 13 Eliz. c. 29. (0) 4 Inst. 227. (p) Jenk. Cent. 2. pl. 88. Cent. 3. pl. 33. Hard. 104. Godbolt, 201.

(9) Hist. C. L. 33.
(F) Tit. 21, 019.
(8) Cod. 7. 70. 1.
(C) 2 Inst. 543.

(17) ? Wi's 40°, 9



We aj o now to proceed to the cognizance of private wrongs; that is, 16 consider in which of the vast variety or courts, mentioned in the

three preceding chapters, every possible injury that can be offered to a man's person or property is certain of meeting with redress.

The authority of the several courts of private and special jurisdiction, or of what wrongs such courts have cognizance, was necessarily remarked as those respective tribunals were enumerated; and therefore need not be here again repeated; which will confine our present inquiry to the cognizance of civil injuries in the several courts of public or general jurisdiction. And the order, in which I shall pursue this inquiry, will be by shewing : 1. What actions may be brought, or what injuries remedied, in the ecclesiastical courts. 2. What in the military. 3. What in the maritime. And, 4. What in the courts of common law.

And, with regard to the three first of these particulars, I must beg leave not so much to consider what hath at any time been claimed or pretended to belong to their jurisdiction, by the officers and judges of those respective courts; but what the common law allows and permits to be so. · For these eccentrical tribunals (which are principally guided by

the rules of the imperial and canon laws), as they subsist and [*87] are *admitted in England, not by any right of their own (a), but

upon bare sufferance and toleration from the municipal laws, must have recourse to the laws of that country wherein they are thus adopted, to be informed how far their jurisdiction extends, or what causes are permitted, and what forbidden, to be discussed or drawn in question before them. It matters not therefore what the pandects of Justinian, or the decretals of Gregory, have ordained. They are here of no more intrinsic authority than the laws of Solon and Lycurgus : curious perhaps for their antiquity, respectable for their equity, and frequently of admirable use in illustrating a point of history. Nor is it at all material in what light other nations may consider this matter of jurisdiction. Every nation must and will abide by its own municipal laws; which various accidents conspire to render different in almost every country in Europe. We permit some kinds of suits •to be of ecclesiastical cognizance, which other nations have referred entirely to the temporal courts; as concerning wills and successions to intestates' chattels : and perhaps we may, in our turn, prohibit them from interfering in some controversies, which on the continent may be looked upon as merely spiritual. In short, the common law of England is the one uniform rule in determine the jurisdiction of our courts : and, if any tribunals whatsoever attempt to exceed the limits so prescribed them, the king's courts of common law may and do prohibit them; and in somo cases punish their judges (b).

Having premised this general caution, I proceed now to consider,
I. The wrongs or injuries cognizable by the ecclesiastical courts. I

.) See Book I. introd. 6 1.

(6) Hal. Hist. C. L. c. 2.

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