The Online Library of Liberty

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• Commentaries On the Laws of England.
• Book the Third.: of Private Wrongs.
• Chapter I.: Of the Redress of Private Wrongs By the Mere Act of the Parties.
• Chapter II.: Of Redress By the Mere Operation of Law.
• Chapter III.: Of Courts In General.
• Chapter IV.: Of the Public Courts of Common Law and Fquity.
• * [*61 Chapter V.: Of Courts Ecclesiastical, Military, and Maritime.
• Chapter VI.: Of Courts of a Special Jurisdiction.
• Chapter VII.: Of the Cognizance of Private Wrongs.
• Chapter VIII.: Of Wrongs, and Their Remedies, Respecting the Rights of Persons.
• Chapter IX.: Of Injuries to Personal Property.
• Chapter X.: Of Injuries to Real Property; and First of Dispossession, Or Ouster of the Freehold.
• Chapter XI.: Of Dispossession, Or Ouster, of Chattels Real.
• Chapter XII.: Of Trespass.
• Chapter XIII.: Of Nuisance.
• Chapter XIV.: Of Waste.
• Chapter XV.: Of Subtraction.
• Chapter XVI.: Of Disturbance.
• Chapter XVII.: Of Injuries Proceeding From, Or Affecting, the Crown.
• Chapter XVIII.: Of the Pursuit of Remedies By Action; and First of the Original Writ.
• Chapter XIX.: Of Process.
• Chapter XX.: Of Pleading
• Chapter XXI.: Of Issue and Demurrer.
• Chapter XXII.: Of the Several Species of Trial.
• Chapter XXIII.: Of the Trial By Jury.
• Chapter XXIV.: Of Judgment and Its Incidents.
• Chapter XXV.: Of Proceedings In the Nature of Appeals.
• Chapter XXVI.: Of Execution.
• Chapter XXVII.: Of Proceedings In the Courts of Equity.
• Appendix.
• No. I.: Proceedings On a Writ of Right Patent.
• * *vii.] No. II.: Proceedings On an Action of Trespass In Ejectment, By Original, In the King’s Bench.
• * [*xiii. No. III.: Proceedings On an Action of Debt In the Court of Common Pleas; Removed Into the King’s Bench By Writ of Error.
• Book the Fourth.: of Public Wrongs.
• Chapter I.: Of the Nature of Crimes, and Their Punishment.
• Chapter II.: Of the Persons Capable of Committing Crimes.
• Chapter III.: Of Principals and Accessories.
• Chapter IV.: Of Offences Against God and Religion.
• * [*66 Chapter V.: Of Offences Against the Law of Nations.
• Chapter VI.: Of High Treason.
• Chapter VII.: Of Felonies Injurious to the King’s Prerogative.
• Chapter VIII.: Of PrÆmunire.
• Chapter IX.: Of Misprisions and Contempts Affecting the King and Government.
• Chapter X.: Of Offences Against Public Justice.
• Chapter XI.: Of Offences Against the Public Peace.
• Chapter XII.: Of Offences Against Public Trade.
• Chapter XIII.: Of Offences Against the Public Health, and the Public Police Or Economy.
• Chapter XIV.: Of Homicide.
• Chapter XV.: Of Offences Against the Persons of Individuals.
• Chapter XVI.: Of Offences Against the Habitations of Individuals.
• Chapter XVII.: Of Offences Against Private Property.
• Chapter XVIII.: Of the Means of Preventing Offences.
• Chapter XIX.: Of Courts of a Criminal Jurisdiction.
• Chapter XX.: Of Summary Convictions.
• Chapter XXI.: Of Arrests.
• Chapter XXII.: Of Commitment and Bail.
• Chapter XXIII.: Of the Several Modes of Prosecution.
• Chapter XXIV.: Of Process Upon an Indictment.
• Chapter XXV.: Of Arraignment and Its Incidents.
• Chapter XXVI.: Of Plea, and Issue.
• Chapter XXVII.: Of Trial and Conviction.
• Chapter XXVIII.: Of the Benefit of Clergy.
• Chapter XXIX.: Of Judgment and Its Consequences.
• Chapter XXX.: Of Reversal of Judgment.
• Chapter XXXI.: Of Reprieve and Pardon.
• Chapter XXXII.: Of Execution.
• Chapter XXXIII.: Of the Rise, Progress, and Gradual Improvements of the Laws of England.
• Appendix.
• Sect. 1.: Record of an Indictment and Conviction of Murder, At the Assizes.
• Sect. 2.: Conviction of Manslaughter.
• Sect. 3.: Entry of a Trial Instanter In the Court of King’s Bench, Upon a Collateral Issue; and Rule of Court For Execution Thereon.
• Sect. 4.: Warrant of Execution On Judgment of Death, At the General Gaol-delivery In London and Middlesex.
• Sect. 5.: Writ of Execution Upon a Judgment of Murder, Before the King In Parliament.
• Barron Field, an Analysis of Blackstone’s Commentaries On the Laws of England.

CHAPTER VI.

OF COURTS OF A SPECIAL JURISDICTION.

In the two preceding chapters we have considered the several courts whose jurisdiction is public and general, and which are so contrived that some or other of them may administer redress to every possible injury that can arise in the kingdom at large. There yet remain certain others, whose jurisdiction is private and special, confined to particular spots, or instituted only to redress particular injuries. These are,

I. The forest courts, instituted for the government of the king’s forests in different parts of the kingdom, and for the punishment of all injuries done to the king’s deer or venison, to the vert or greensward, and to the covert in which such deer are lodged. These are the courts of attachments, of regard, of sweinmote, and of justice-seat. 1. The court of attachments, wood-motes, or forty-days court is to be held before the verderors of the forest once in every forty days;(a) and is instituted to inquire into all offenders against vert and venison;(b) who may be attached by their bodies, if taken with the mainour, (or mainoeuvre, a manu,) that is, in the very act of killing venison, or stealing wood, or preparing so to do, or by fresh and immediate pursuit after the act is done;(c) else they must be attached by their goods. And in this forty-days court the foresters or keepers are to bring their attachments, or presentments de viridi et venatione; and the verderors are to receive the same, and to enroll them, and to certify them under their seals to the court of justice-seat or sweinmote:(d) for this court can only inquire of, but not convict, offenders. 2. The court of regard, or survey of dogs, is to be holden every third year for the lawing or expeditation of mastiffs, which is done by cutting off the claws and ball (or *[*72pelote) of the forefeet, to prevent them from running after deer.(e) No other dogs but mastiffs are to be thus lawed or expeditated, for none others were permitted to be kept within the precincts of the forest; it being supposed that the keeping of these, and these only, was necessary for the defence of a man’s house.(f) 3. The court of sweinmote is to be holden before the verderors, as judges, by the steward of the swein-mote, thrice in every year,(g) the sweins or freeholders within the forest composing the jury. The principal jurisdiction of this court is, first, to inquire into the oppressions and grievances committed by the officers of the forest; “de super-oneratione forestariorum, et aliorum ministrorum forestæ; et de eorum oppressionibus populo regis illatis;” and, secondly, to receive and try presentments certified from the court of attachment against offences in vert and venison.(h) And this court may not only inquire, but convict also, which conviction shall be certified to the court of justice-seat under the seals of the jury; for this court cannot proceed to judgment.(i) But the principal court is, 4, The court of justice-seat, which is held before the chief justice in eyre, or chief itinerant judge, capitalis justiciarius in itinere, or his deputy; to hear and determine all trespasses within the forest, and all claims of franchises, liberties, and privileges, and all pleas and causes whatsoever therein arising.(k) It may also proceed to try presentments in the inferior courts of the forests, and to give judgment upon conviction of the sweinmote. And the chief justice may therefore, after presentment made, or indictment found, but not before,(l) issue his warrant to the officers of the forest to apprehend the offenders. It may be held every third year; and forty days’ notice ought to be given of its sitting. This court may fine and imprison for offences within the forest,(m) it being a court of record: and therefore a writ of error lies from hence to the court of **73]king’s bench, to rectify and redress any mal-administrations of justice;(n) or the chief justice in eyre may adjourn any matter of law into the court of king’s bench.(o) These justices in eyre were instituted by king Henry II., ad 1184,(p)1 and their courts were formerly very regularly held: but the last court of justice-seat of any note was that holden in the reign of Charles I., before the earl of Holland; the rigorous proceedings at which are reported by Sir William Jones. After the restoration another was held, pro forma only, before the earl of Oxford;(q) but since the era of the revolution in 1688, the forest laws have fallen into total disuse, to the great advantage of the subject.2

II. A second species of restricted courts is that of commissioners of sewers. This is a temporary tribunal, erected by virtue of a commission under the great seal; which formerly used to be granted pro re nata at the pleasure of the crown,(r) but now at the discretion and nomination of the lord chancellor, lord treasurer, and chief justices, pursuant to the statute 23 Hen. VIII. c. 5. Their jurisdiction is to overlook the repairs of sea-banks and sea-walls, and the cleansing of rivers, public streams, ditches, and other conduits whereby any waters are carried off: and is confined to such county, or particular district, as the commission shall expressly name. The commissioners are a court of record, and may fine and imprison for contempt;(s) and in the execution of their duty may proceed by jury, or upon their own view, and may take order for the removal of any annoyances, or the safeguard and conservation of the sewers within their commission, either according to the laws and customs of Romney marsh,(t) or otherwise at their own discretion. They may also assess such rates, or scots, upon the owners of lands within their district as they shall judge necessary; and, if any person refuses to pay them, the commissioners may levy the same by distress of his goods and chattels; or they may, by statute 23 Hen. VIII. c. 5, sell his freehold lands (and, by the 7 Anne, c. 10, his copyhold also) in order to pay such **74]scots or assessments. But their conduct is under the control of the court of king’s bench, which will prevent or punish any illegal or tyrannical proceedings.(u) And yet, in the reign of king James I., (8 Nov. 1616,) the privy counsel took upon them to order that no action or complaint should be prosecuted against the commissioners unless before that board; and committed several to prison, who had brought such actions at common law, till they should release the same: and one of the reasons for discharging Sir Edward Coke from his office of lord chief justice was for countenancing those legal proceedings.(v) The pretence for which arbitrary measures was no other than the tyrant’s plea(w) of the necessity of unlimited powers in works of evident utility to the public, “the supreme reason above all reasons, which is the salvation of the king’s lands and people.” But now it is clearly held, that this (as well as all other inferior jurisdictions) is subject to the discretionary coercion of his majesty’s court of king’s bench.(x)

III. The court of policies of insurance, when subsisting, is erected in pursuance of the statute 43 Eliz. c. 12, which recites the immemorial usage of policies of assurance, “by means whereof it cometh to pass, upon the loss or perishing of any ship, there followeth not the undoing of any man, but the loss lighteth rather easily upon many than heavy upon few, and rather upon them that adventure not than upon those that do adventure: whereby all merchants, especially those of the younger sort, are allured to venture more willingly and more freely: and that heretofore such assurers had used to stand so justly and precisely upon their credits as few or no controversies had arisen thereupon; and if any had grown, the same had from time to time been ended and ordered by certain grave and discreet merchants appointed by the lord mayor of the city of London; as men by reason of their experience fittest to understand and speedily decide those causes:” but that of late years divers persons had withdrawn themselves from that course of arbitration, and had driven the assured to bring separate actions at law against each assurer: it therefore enables the *[*75lord chancellor yearly to grant a standing commission to the judge of the admiralty, the recorder of London, two doctors of the civil law, two common lawyers, and eight merchants; any three of which, one being a civilian or a barrister, are thereby and by the statute 13 & 14 Car. II. c. 23, empowered to determine in a summary way all causes concerning policies of assurance in London, with an appeal (by way of bill) to the court of chancery. But the jurisdiction being somewhat defective, as extending only to London, and to no other assurances but those on merchandise,(y) and to suits brought by the assured only, and not by the insurers,(z) no such commission has of late years issued: but insurance causes are now usually determined by the verdict of a jury of merchants, and the opinion of the judges in case of any legal doubts; whereby the decision is more speedy, satisfactory, and final: though it is to be wished that some of the parliamentary powers invested in these commissions, especially for the examination of witnesses, either beyond the seas or speedily going out of the kingdom,(a) could at present be adopted by the courts of Westminster hall, without requiring the consent of parties.

IV. The court of the marshalsea, and the palace-court at Westminster, though two distinct courts, are frequently confounded together. The former was originally holden before the steward and marshal of the king’s house, and was instituted to administer justice between the king’s domestic servants, that they might not be drawn into other courts and thereby the king lose their service.(b) It was formerly held in, though not a part of, the aula regis,(c) and, when that was subdivided, remained a distinct jurisdiction: holding plea of all trespasses committed within the verge of the court, where only one of the parties is in the king’s domestic service, (in which case the inquest shall be taken by a jury of the country,) and of all debts, contracts, and covenants where both of the contracting parties belong to the royal household; and then the inquest shall be composed of men of the house*[*76hold only.(d) By the statute of 13 Rio. II. st. 1, c. 3, (in affirmance of the common law,)(e) the verge of the court in this respect extends for twelve miles round the king’s place of residence.(f) And, as this tribunal was never subject to the jurisdiction of the chief justiciary, no writ of error lay from it (though a court of record) to the king’s bench, but only to parliament,(g) till the statutes of 5 Edw. III. c. 2, and 10 Edw. III. st. 2, c. 3, which allowed such writ of error before the king in his palace. But this court being ambulatory, and obliged to follow the king in all his progresses, so that by the removal of the household actions were frequently discontinued,(h) and doubts having arisen as to the extent of its jurisdiction,(i) king Charles I., in the sixth year of his reign, by his letters-patent erected a new court of record, called the curia palatii, or palace-court, to be held before the steward of the household and knight-marshal, and the steward of the court, or his deputy; with jurisdiction to hold plea of all manner of personal actions whatsoever which shall arise between any parties within twelve miles of his majesty’s palace at Whitehall.(k) The court is now held once a week, together with the antient court of marshalsea, in the borough of Southwark: and a writ of error lies from thence to the court of king’s bench. But if the cause is of any considerable consequence, it is usually removed on its first commencement, together with the custody of the defendant, either into the king’s bench or common pleas, by a writ of habeas corpus cum causa: and the inferior business of the court hath of late years been much reduced by the new courts of conscience erected in the environs of London; in consideration of which, the four counsel belonging to these courts had salaries granted them for their lives by the statute 23 Geo. II. c. 27.3

V. **77]A fifth species of private courts of a limited, though extensive, jurisdiction, are those of the principality of Wales, which, upon its thorough reduction, and the settling of its polity in the reign of Henry the Eighth,(l) were erected all over the country; principally by the statute 34 & 35 Hen. VIII. c. 26, though much had been before done, and the way prepared, by the statute of Wales, 12 Edw. I., and other statutes. By the statute of Henry the Eighth before mentioned, court-barons, hundred, and county courts are there established, as in England. A session is also to be held twice in every year in each county, by judges(m) appointed by the king, to be called the great sessions of the several counties in Wales: in which all pleas of real and personal actions shall be held, with the same form of process, and in as ample a manner, as in the court of common pleas at Westminster:(n) and writs of error shall lie from judgments therein (it being a court of record) to the court of king’s bench at Westminster. But the ordinary original writs of process of the king’s courts at Westminster do not run into the principality of Wales:(o) though process of execution does;(p) as do also prerogative writs, as writs of certiorari, quo minus, mandamus, and the like.(q) And even in causes between subject and subject, to prevent injustice through family factions or prejudices, it is held lawful (in causes of freehold at least, and it is usual in all others) to bring an action in the English courts, and try the same in the next English county adjoining to that part of Wales where the cause arises,(r) and where the venue is laid. But, on the other hand, to prevent trifling and frivolous suits, it is enacted, by statute 13 Geo. III. c. 51, that in personal actions, tried in any English county where the cause of action arose, and the defendant resides in Wales, if the plaintiff shall not recover a verdict for ten pounds, he shall be non-suited and pay the defendant’s costs, unless it be certified by the judge that the freehold or title came principally in question, or that the cause was proper *[*78to be tried, in such English county. And if any transitory action, the cause whereof arose and the defendant is resident in Wales, shall be brought in any English county, and the plaintiff shall not recover a verdict for ten pounds, the plaintiff shall be nonsuited, and shall pay the defendant’s costs, deducting thereout the sum recovered by the verdict.4

VI. The court of the duchy chamber of Lancaster is another special jurisdiction, held before the chancellor of the duchy or his deputy, concerning all matter of equity relating to lands holden of the king in right of the duchy of Lancaster:(s) which is a thing very distinct from the county palatine, (which hath also its separate chancery, for sealing of writs, and the like,)(t) and comprises much territory which lies at a vast distance from it; as particularly a very large district surrounded by the city of Westminster. The proceedings in this court are the same as on the equity side in the courts of exchequer and chancery;(u) so that it seems not to be a court of record; and indeed it has been holden that those courts have a concurrent jurisdiction with the duchy court, and may take cognizance of the same causes.(v)

VII. Another species of private courts, which are of a limited local jurisdiction, and have at the same time an exclusive cognizance of pleas, in matters of both law and civil equity,(w) are those which appertain to the counties palatine of Chester, Lancaster, and Durham, and the royal franchise of Ely.(x)5 In all these, as in the principality of Wales, the king’s ordinary writs, issuing under the great seal out of chancery, do not run; that is, they are of no force. For as originally all jura regalia were granted to the lords of these counties palatine, they had of course the sole administration of justice by their own judges, appointed by themselves and not by the crown. It would therefore be incongruous for the king to send his writ to direct the judge of another’s court in what manner to administer justice between the suitors. But when the privileges of these counties palatine and franchises were abridged by statute 27 Hen. VIII. c. 24, it was *[*79also enacted that all writs and process should be made in the king’s name, but should be tested or witnessed in the name of the owner of the franchise. Wherefore all writs whereon actions are founded and which have current authority here must be under the seal of the respective franchises; the two former of which are now united to the crown, and the two latter under the government of their several bishops. And the judges of assize who sit therein sit by virtue of a special commission from the owners of the several franchises, and under the seal thereof, and not by the usual commission under the great seal of England. Hither also may be referred the courts of the cinque ports, or five most important havens, as they formerly were esteemed, in the kingdom, viz., Dover, Sandwich, Romney, Hastings, and Hythe, to which Winchelsea and Rye have been since added, which have also similar franchises in many respects(y) with the counties palatine, and particularly an exclusive jurisdiction, (before the mayor and jurats of the ports,) in which exclusive jurisdiction the king’s ordinary writ does not run. A writ of error lies from the mayor and jurats of each port to the lord warden of the cinque ports, in his court of Shepway, and from the court of Shepway to the king’s bench.(z) So likewise a writ of error lies from all the other jurisdictions to the same supreme court of judicature,(a) as an ensign of superiority reserved to the crown at the original creation of the franchises. And all prerogative writs (as those of habeas corpus, prohibition, certiorari, and mandamus) may issue for the same reason to all these exempt jurisdictions;(b) because the privilege, that the king’s writ runs not, must be intended between party and party, for there can be no such privilege against the king.(c)

VIII. 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 **80]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 profitable 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 court 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(f) 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)

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 private 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 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 **81]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,(k) and are bound by the statute 19 Geo. III. c. 70 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 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 parliament, in the city of London, and other trading and populous districts, which in their proceedings so vary from the course of common law that they may deserve a more particular consideration. I mean the courts of requests, or courts of conscience, for the recovery of small debts.6 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. c. 15, which has since been explained and amended by statute 14 Geo. II. c. 10.7 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.8

*[*82The anxious desire that has been shown 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 antient 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 the 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 excluded 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 *[*83at 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 held, at least once a month, in every hundred of the county of Middlesex, by the county-clerk. 2. That twelve freeholders of that hundred, 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 value of forty shillings, the county-clerk and twelve suitors shall proceed in a summary way, examining the parties and witnesses on oath, without the formal process antiently 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, upon 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 whatsoever. This is a plan entirely agreeable to the constitution and genius of the 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.9 Which two learned bodies enjoy the sole jurisdiction, in exclusion of the king’s **84]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 process in a course much conformed to the civil law, for reasons sufficiently explained in a former book.(l)

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, ad 1158.(m) But as to England in particular, the oldest charter that I have seen, containing this grant to the university of Oxford, was 28 Hen. III. ad 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 third 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,(n) confirming all the charters of the two universities, and those of 14 Hen. VIII. and 3 Eliz. by name. 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(q) very fully expresses the sense *[*85of 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 enacted; 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 discourdance 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:(t) that these particular jurisdictions, derogating from the general jurisdiction of the courts of common law, are ever strictly restrained, and cannot be extended further than the express letter of their privileges will moil explicitly warrant.

[(a) ]Cart. de forest. 9 Hen. III. c. 8.

[(b) ] 4 Inst. 289.

[(c) ] Carth. 79.

[(d) ]Cart. de forest. c. 16.

[(e) ] Ibid.

[(f) ] 4 Inst. 308.

[(g) ]Cart. de forest. c. 8.

[(h) ] Stat. 34 Edw. I. c. 1.

[(i) ] 4 Inst. 289.

[(k) ] 4 Inst. 291.

[(l) ] Stat. 1 Edw. III. c. 8. 7 Ric. II. c. 4.

[(m) ] 4 Inst. 313.

[(n) ] Ibid. 297.

[(o) ] Ibid. 295.

[(p) ] Hoveden.

[1 ] By the 57 Geo. III. c. 61, the offices of these justices are abolished on the termination of their then existing interests, and the salaries of the abolished offices are to make part of the consolidated fund.—Chitty.

[(q) ] North’s Life of Lord Guildford, 45.

[2 ] All the forests which were made after the conquest, except New Forest in Hampshire, created by William the Conqueror, were disafforested by the charta de foresta. The forest of Hampton Court was established by the authority of parliament in the reign of Hen. VIII. The number of forests in England is sixty-nine. 4 Inst. 319. Charles I. enforced the odious forest laws, as a source of revenue independent of the parliament.—Christian.

[(r) ] F. N. B. 118.

[(s) ] Sid. 145.

[(t) ] Romney marsh, in the county of Kent, a tract containing 24,000 acres, is governed by certain ancient and equitable laws of sewers, composed by Henry de Bathe, a venerable judge in the reign of king Henry the Third, from which laws all commissioners of sewers in England may receive light and direction. 4 Inst. 276.

[(u) ] Cro. Jac. 336.

[(v) ] Moor. 825, 826. See page 55.

[(w) ] Milt. Paradise Lost, iv. 393.

[(x) ] 1 Ventr. 66. Salk. 146.

[(y) ] Styl. 166.

[(z) ] 1 Show. 396.

[(a) ] Stat. 13 & 14 Car. II. c. 22, 3, 4.

[(b) ] 1 Bulstr. 211.

[(c) ] Flet. l. 2, c. 2.

[(d) ]Artic. sup. cart. 28 Edw. I. c. 3. Stat. 5 Edw. III. c. 2. 10 Edw. III. st. 2, c. 2.

[(e) ] 2 Inst. 548.

[(f) ] By the ancient Saxon constitution, the pax regia, or privilege of the king’s palace, extended from his palace-gate to the distance of three miles, three furlongs, three acres, nine feet, nine palms, and nine barley-corns, as appears from a fragment of the Textus Roffensis cited in Dr. Hickes’s Disscriat. Epistol. 114.

[(g) ] 1 Bulstr. 211. 10 Rep. 79.

[(h) ] F. N. B. 241. 2 Inst. 548.

[(i) ] 1 Bulstr. 208.

[(k) ] 1 Sid. 180. Salk. 439.

[3 ] The business of the court was much reduced,—first, by the erection of courts of conscience in the environs of London, and next by the establishment of the county courts; and the court itself was finally abolished by statute 12 & 13 Vict. c. 101.—Kerr.

[(l) ] See book i. introd. 4.

[(m) ] Stat. 18 Eliz. c. 8.

[(n) ] See, for further regulations of the practice of these courts, stat. 5 Eliz. c. 25. 8 Eliz. c. 20. 8 Geo. I. c. 25, 6. 6 Geo. II. c. 14. 13 Geo. III. c. 51.

[(o) ] 2 Roll. Rep. 141.

[(p) ] 2 Bulstr. 156. 2 Saund. 193. Raym. 206.

[(q) ] Cro. Jac. 484.

[(r) ] Vaugh. 413. Hardr. 66.

[4 ] But these distinctions are now entirely abolished; for, by stat. 11 Geo. IV. and 1 W. IV. c. 70, s. 14, it is enacted that from the 12th of October, 1830, all power and jurisdiction of the judges and courts of great sessions, both at law and in equity, shall cease, and that all suits in equity then depending should be transferred into the court of exchequer; and, by s. 13, it is enacted that the king’s writ shall be directed and obeyed, and the jurisdiction of the courts of common law and the judges thereof shall extend and be exercised in like manner as the jurisdiction of such courts is now exercised in and over the counties of England. The administration of justice in Wales is thus and by subsequent statutes (5 Vict. s. 2, c. 33, 8 Vict. c. 11) rendered uniform in every respect with that of England.—Stewart.

See construction of this act, Tidd, 8 ed. index, tit. Wales. If goods be delivered in London to be carried into Wales, the debt, though under 10l., may be sued for in London. 2 Starkie, 33.—Chitty.

[(s) ] Hob. 77. 2 Lev. 24.

[(t) ] 1 Venti. 257.

[(u) ] 4 Inst. 206.

[(v) ] 1 Ch. Rep. 55. Toth. 145. Hardr. 171.

[(w) ] 4 Inst. 213, 218. Finch, R. 452.

[(x) ] See book i. introd. 1.

[5 ] The two former of which are now united to the crown, (6 W. IV. c. 19,) while that of Chester has been, by stat. 11 Geo. IV. and 7 W. IV. c. 70, abolished, and that of Ely, by stat. 6 & 7 W. IV. c. 87, and 7 W. IV. and 1 Vict. c. 53, also extinguished.—Stewart.

[(y) ] 1 Sid. 106.

[(z) ] Jenk. 71. Dyversyté des courtes, tit. bank le roy. 1 Sid. 356.

[(a) ] Bro. Abr. tit. error, 74, 101. Davis, 62. 4 Inst. 38, 214, 218.

[(b) ] 1 Sid. 92.

[(c) ] Cro. Jac. 543.

[(d) ] 4 Inst. 232.

[(e) ] See this at length in 4 Inst. 232.

[(f) ] 4 Inst. 231.

[(g) ] Ibid. 230.

[(h) ] 3 Bulstr. 183.

[(i) ] Doddridge, Hist. of Cornw. 94.

[(j) ] 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 hustings, before the mayor, recorder, and sheriffs, and from thence to justices appointed by the king’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 immediately to the house of lords.

[(k) ] Salk. 144, 263.

[6 ] See all the acts and cases thereon, relating to courts of requests, ably collected in Tidd’s Prac. 8 ed. 989 to 996.—Chitty.

[7 ] The act is still further extended by the 39 & 40 Geo. III. c. 104. See Tidd’s Prac. 8 ed. 989.—Chitty.

[8 ] By the 25 Geo. III. c. 45 and 26 Geo. III. c. 38, no debtor or defendant, in any court for the recovery of small debts, where the debt does not exceed 20s., shall be committed to prison for more than twenty days, and if the debt does not exceed 40s., for more than forty days, unless it be proved to the satisfaction of the court that he has money or goods which he fraudulently conceals; and in the first case the imprisonment may be extended to thirty days, and in the latter to sixty.

[9 ] As the object of the privilege is that students and others connected with the universities should not be distracted from the studies and duties to be there performed, the party proceeded against must in general be a resident member of the university, and that fact must be expressly sworn, or be collected from the affidavit. The privilege of Cambridge differs from that of Oxford: in the former it only extends to causes of action accruing in the town and its suburbs; but in Oxford it extends to all personal causes arising anywhere. R. T. Hardw. 241. 2 Wils. 406. Bac. Abr. Universities. The claim of conusance must be made in due form and in due time. 2 Wils. 406. Claim of conusance of an action of trespass, brought in King’s Bench against a resident member of the university of Cambridge, for a cause of action verified by affidavit not to have arisen within the town and suburbs of Cambridge, was allowed upon the claim of the vice-chancellor on behalf of the chancellor, masters, and scholars of the university, entered on the roll in due form, setting out their jurisdictions under charters confirmed by statute, and averring that the cause of action arose within such jurisdiction. 12 East, 12. And claim of conusance by the university of Oxford was allowed in an action of trespass in King’s Bench against a proctor, a pro-proctor, and the marshal of the university, though the affidavit of the latter, describing him as of a parish in the suburbs of Oxford, only verified that he then was, and had been for the last fourteen years, a common servant of the university, called marshal of the university, and that he was sued for an act done by him in the discharge of his duty, and in obedience to the orders of the other two defendants, without stating that he resided within the university, or was matriculated. 15 East, 634.—Chitty.

[(l) ] Book i. introd. 1.

[(m) ]Cod. 4, tit. 13.

[(n) ] 13 Eliz. c. 29.

[(o) ] 4 Inst. 227.

[(p) ] Jenk. Cent. 2, pl. 88; Cent. 3, pl. 33. Hardr. 504. God[Editor: illegible character]. 201.

[(q) ] Hist. C. L. 33.

[(r) ] Tit. 21, 19.

[(s) ]Cod. 7, 70, 1.

[(t) ] 2 Inst. 543.