their own courts. No writ of error lies from hence to any court in Westminster Hall, as was agreed by all the judges1 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,2 when he hath had seizure and investiture of the same;3 and from thence the appeal lies to the queen herself in the last resort." 4 VIII. The several courts within the city of London, and other cities, boroughs, and corporations, throughout the kingdom, held by prescription, charter, or act of parliament, are also of the same private and limited species. It would exceed the design and compass of our present inquiries, if we 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 favour 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 superintendency over them, and are bound by the statute 19 Geo. III. c. lxx. to give assistance to such of them as are courts of record, by issuing writs of execution, where the person or effects of the defendant are not within the inferior jurisdiction; and the proceedings in these special courts ought to be according to the course of the common law, unless otherwise ordered by parliament.5 But there 14 Inst. 231. 24 Inst. 230. 3 3 Bulstr. 183. 4 Blackst. Com. b. iii. c. vi. p. 79, 80. Doderidge, History of Cornw. 94. * See 4 Inst. c. 50, &c. See also Bohun's Privilegia Londini. is one species of courts, constituted by act of parliament, in the city of London, and other trading and populous districts, which in their proceedings so vary from the course of the common law, that they may deserve a more particular consideration. These are the courts of requests, or courts of conscience, for the recovery of small debts. The first of these was established in London so early as the reign of Henry VIII. by an act of the common council, which, however, was certainly insufficient for that purpose and illegal, till confirmed by statute 3 Jac. I. c. xv., which has since been explained and amended by statute 14 Geo. II. c. x. 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 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. IX. There remains another species of private courts, which must not be passed over in silence: namely, the chancellor's courts in the two universities in England. The origin of these academical jurisdictions was as follows:-When the Pandects began to be taught at Bologna by Irnerius (the more fortunate or abler successor of Pepo, the first founder of that school), the crowds of students who flocked to hear his lectures, under the au 1 Terrasson, Hist. de la Jur. Rom. p. 384, 385. Giannone, Istoria, L. xi. c. ii. As to Irnerius, see Savigny, Hist. du Droit Rom. c. xxvi. tom. iv. p. 10. Panzirolus de claris Legum Interpr. p. 101-120. spices of the emperor Lotharius, appear to have soon formed a distinct body or society. And Giannone informs us, on the authority of Acerbus Morena, that when Irnerius was on his death-bed, his scholars asked him to nominate a successor, which he did by naming Bulgarus, Martinus, and Hugo; an anecdote which sufficiently proves the association of the students under their teacher. From such voluntary societies of students arose the universities of Paris and Bologna, the most ancient of those great schools which filled Europe with their renown, but differing from each other in this respect-that in the former the corporate and ruling body was composed exclusively of the professors; while in the latter the students elected rulers, by whom they, together with the professors, were governed. The first of these systems was followed generally in Italy, Spain, and France, and the second in England and Germany.2 The formation of these corporate bodies naturally led to their being invested with some jurisdiction over their members; and the nature of the ancient schools of law, as well as of the degree of doctor which they conferred, contributed to produce this result: a species of judicial character and authority was in ancient times supposed to be inherent in the degree of a doctor of law. Thus Panzirolus informs us that the learned in the law, afterwards called doctors, were among the Lombards styled judges ;3 and we find in the Italian tales of the thirteenth century many instances of doctors of law receiving that appellation, and even exercising a species of jurisdiction without being invested with any judicial office. Giannone is of 1 Giannone, ibid. 2 Savigny, Hist. tom. iii. c. xxi. § 59. And see an account of the Italian universities, in Tiraboschi, Stor. della Letteratura Italiana, tom. iv. lib. i. c. iii. 3 Panzirol. de clar. Leg. Interp. 1. ii. c. i. princ. opinion that the degree of doctor of law was first instituted by the emperor Lotharius; and Savigny dates its commencement from the middle of the twelfth century:* but the great solemnity with which it was conferred shews that it was considered as a public dignity or office. But however this may be, the emperor Frederic I., in the year 1158, conferred upon the school of law at Bologna a charter, granting protection to foreign students resorting thither, and investing the professor or ruler of that body and the bishop with a concurrent jurisdiction in criminal matters over its members, exclusive of that of the ordinary magistrates.3 Blackstone says that the oldest English charter of this kind that he had seen, containing a franchise of like nature, was granted by king Henry III., in the year 1244, to the university of Oxford; but Arthur Duck asserts that a jurisdiction was granted to that body by king John.* And these privileges were confirmed by subsequent kings, enlarged by king Henry VIII., and extended to the uni versity of Cambridge by queen Elizabeth, in whose reign. an act of parliament was obtained, confirming all the 1 Giannone, ubi cit. 2 Savigny, Hist. tom. iii. c. xxi. § 77. Savigny informs us that the degree of doctor in canon-law first commenced at the end of the 12th century, but did not until a later period give that jurisdiction which belonged to the same degree in civil law; and that doctors of medicine are not mentioned until the thirteenth century, but were then only called magistri by the doctors of law, who held the doctor's degree to be their exclusive right. 3 Savigny, Hist. tom. iii. c. xxi. § 63. A limited jurisdiction was granted by the emperor Justinian to the professors of the school of law at Berytus, and also to præses of the province, and the bishop over the scholars of that body; and the charter of Frederic I. is conjectured by Savigny to have been framed upon the model of the former. Duck, de Author. Jur. Rom. lib. ii. c. viii. pars 3, § 31. 5 Stat. 13 Eliz. c. xxix. charters of the two universities; and this act was necessary to confirm the privilege granted by Henry VIII. to the university of Oxford, of proceeding according to the use of the university and the civil law, instead of by the common law.' Under these grants and confirmations those two learned bodies enjoy sole jurisdiction, in exclusion of the queen'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 they are at liberty to try either by the common law or their own customs, which are mostly in conformity with the civil law. They have also a criminal jurisdiction.3 These privileges, so far as they relate to civil causes, are 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 last by the statutes of the university, according to the rule of the canon-law. 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. By virtue of the charter of the 2d Hen. IV. confirmed among the rest by statute of Elizabeth already mentioned, the university of Oxford has a criminal jurisdiction in all 1 Hale, Hist. Com. Law, 33. 2 Blackst. Com. b. iii. c. vi. p. 83. 3 Duck, de Us. et Author. Jur. Civ. 1. ii. c. viii. pars 3, § 31. As to the university courts, see 4 Inst. 227. |