the duties of the governors thereof, and the obligations and rights of the subject, are defined by, and depend upon, not the arbitrary will of any man, but the law of the land. How essential, then, must that part of the constitution be, to which belongs the administration of the laws securing the existence of that constitution, and whereof its whole fabric and scheme is composed! How great a trust is placed in the hands of those magistrates who, as depositaries and sole interpreters of the law, are the conservators of the whole civil polity of the empire! And, indeed, it has been said by a great modern orator, that the whole machinery of civil government has for its ultimate object the due administration of laws in courts of justice. That branch of constitutional law cannot be understood without a previous review of the various tribunals invested with divers portions of the judicial power of the state. That task is rendered difficult by the complicated nature of our judicial constitution, which was not framed on any one systematic scheme of polity, but arose by degrees out of the fragments of the ancient Norman curia regis, or royal court, and the Saxon local tribunals; with modifications and additions, devised, as they seemed requisite, by our kings and parliaments. It is consequently, perhaps, impossible to arrange the subject according to a strictly scientific method. We will, therefore, divide the civil tribunals of the country (with which alone we are for the present concerned) into three classes, with reference to the nature of their jurisdiction: namely, 1. The public courts of common law and equity; 2. The courts ecclesiastical, maritime and military; and 3. The courts the jurisdiction of which is not, like that of the tribunals already named, general, and extending all over the kingdom, but private, and restricted to some parts of it. This chapter will be confined to the first of these classes. And the order we shall observe in discoursing of these several courts for the administration of civil justice, 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 as well as the most expeditious court of justice in England is the court of piépoudre, curia pedis pulverisati; so called from the dusty feet of the suitors, or rather, as Blackstone believes, from pied puldreaux, which in old French signifies a pedlar. It is a court of record incident to every fair or 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. From this court a writ of error lies, in the nature of an appeal to the courts of Westminster, which are now bound by stat. 19 Geo. III. c. lxx., to issue writs of execution in aid of its process after judgment.1 II. The court baron is a court incident to every manor in the kingdom, to be holden by the steward within the manor. This court baron is of two natures:2 the one is a customary court, appertaining entirely to the copyholders, in which their estates are transferred by surrender to the lord, and subsequent admittance of the new tenant, according to the law governing that peculiar tenure, and other matters are transacted relative to their 1 (Coke) 4 Inst. c. lxi. Blackst. Com. b. iii. c. iv. p. 32, 33. 3 Blackst. Com. b. ii. c. iv. vi. xxii. 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, for that it was held before the freeholders who owe suit and service to the manor, the steward being rather the registrar than the judge; and after judgment given, a writ of false judgment lies to the courts at Westminster to rehear and review the cause, and not a writ of error, because this is not a court of record. But of this court, and the two that follow, little need be said here. 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 also the judges, and the steward the registrar, as in the case of a court baron. Its decisions are also liable to be reviewed in the courts of Westminster by a writ of false judgment, and not a writ of error, for it is not a court of record.2 IV. The county court is a court incident to the jurisdiction of the sheriff. It is not a court of record, but may hold pleas of debt or damages under the value of forty shillings. The county court may also take cognisance of personal actions (that is to say, actions whereby a man claims a debt or personal duty, or damages in lieu thereof, and likewise whereby a man claims a satisfaction in damages for some injury done to his person or property) to any amount, by virtue of a special writ called a justicies, which is a writ empowering the sheriff for the sake of despatch to do the same justice in his county court as might otherwise be had at Westminster. At the county court (whereof the freeholders of the county are the real judges, and the sheriff is the ministerial officer) all popular elections which the freeholders are to make, as formerly of 1 Blackst. Com. b. iii. c. iv. p. 33, 34. 2 Ibid. p. 34, 35. sheriffs and conservators of the peace, and still of coroners, verderors, and knights of the shire, must ever be made. But the dignity of this tribunal was much impaired when the bishop and the earl, who formerly presided there, ceased to attend it. The proceedings in the county court are subject to the same appellate jurisdiction as those of the hundred court.1 These are the several species of common-law courts, which, though dispersed universally throughout the realm, are nevertheless of partial jurisdiction, and confined to particular districts, yet communicating with, and as it were members of, the superior courts of a more extended and general nature, 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," as our great commentator informs us, "there was only one superior court of justice in the kingdom, and that court had cognisance both of civil and spiritual causes: namely, the wittenagemote, 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 He therefore established a constant court in his crown. 1 Blackst. Com. b. iii. c. iv. p. 35, 36. 2 Blackst. Com. ibid. p. 36, 37; and Gilbert, Forum Romanum, own hall, thence called by Bracton,' 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 the lord mareschal, who chiefly presided in matters of honour and of arms, determining according to the military law and the law of nations. Besides these, there were the lord high steward and lord great chamberlain; the steward of the household; the lord chancellor, whose particular business it was to keep the king's seal, and examine all such writs, grants, and letters, 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 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 revenue; 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 that employed him.”2 This great universal court being bound to follow the 1 L. iii. tr. 1. c. vii. 2 Spelman, Gloss. 331-3. Gilbert, Hist. C. P. introd. xvii. |