Abbildungen der Seite
PDF
EPUB

COURTS OF APPEAL.

113

then possessed by the courts of law, of examining the liti gating parties on oath ;-of the latter kind were suits concerning apprehended injury to property, which the court of Chancery could restrain before the injury was committed, whilst courts of law could only compensate by damages, after its commission.

The King's Bench is the court of appeal for all the inferior Courts of Record, as it was also for the courts of Common Pleas and Exchequer, when those courts were first instituted. Edward III. commenced an alteration of the system. He established a new court of appeal, called the Exchequer-chamber, for the review of the decisions of the court of Exchequer, declaring by statute that "where a man complaineth of error, made in the process of the Exchequer, the chancellor and treasurer (of the Exchequer) should cause to come before them, in any chamber of council nigh the Exchequer, the record of the process out of the Exchequer, taking to them the justices and other sage persons, as to them seemeth, to be taken." The appeal from the King's Bench was at first only to parliament; but in the reign of Elizabeth a writ of error was allowed, in the case of all actions commenced in the King's Bench, to the court of Exchequer-chamber, consisting of the Justices of the Common Pleas and Barons of the Exchequer, or six of them at the least; but the judgment was not final, and an appeal might be carried from the Exchequer-chamber direct to parliament.2 The appeal from the Common Pleas was, by a modern statute, transferred from the King's Bench to the Exchequer-chamber; so that, in the present day, the decisions of the three courts are subject to review in the court of Exchequer-chamber; the members of two courts being the judges to review the decisions of the third. From the Exchequer-chamber, and also, since the reign of Charles I., from the court of the Lord Chancellor, there was, as there now is, a final appeal to the House of Lords.

131 Edward III., stat. 1, cap. 12., A.D. 1357.

227 Elizabeth, cap. 8, A.D. 1585. 31 Elizabeth, cap. 1, A.D. 1589. 3 1 William IV., cap. 72.

Besides these superior courts, there were inferior courts, with limited jurisdiction: the County Court, held once a month before the sheriff or his deputy; Courts-Baron, held generally every three weeks before the stewards of the lords of manors (and other still lower courts), where cases limited to forty shillings in amount were decided by juries taken from the tenants of the manor.

The SHERIFFS were (as they now are) the ministerial officers of the superior courts. They executed the writs for the summoning of the parties and of the juries, and the orders and decrees for the enforcement of the sentences of the courts in criminal, and of their judgments in civil, cases. They had the charge of the gaols, and the custody of all criminals, as well those committed for trial as those convicted; and of all debtors and others committed to prison by the processes or judgments of the civil courts. These duties the sheriff performed as the king's bailiff, or representative of the executive power of the king within his county. In the Saxon times they were the deputies of the eorldermen; but after the Conquest the sheriff (and not the earl, who had his name of dignity from the county) was the first officer of the crown, and ranked above any nobleman within the county. For the preservation of the peace of the county, he was invested with large powers of pursuing and apprehending persons who broke the peace, and of summoning to his aid the posse comitatús, or all male persons above fifteen years of age, below the degree of a peer.

The CORONERS were very ancient officers of the crown,— inferior in rank to the sheriff, but associated with him in the duty of preserving the peace of the county, and arresting felons. Edward I. passed a statute that through all shires sufficient men should be chosen to be coroners of the most wise and discreet knights. He also passed a statute to declare of what things a coroner should inquire. It gives most minute directions for inquiring, by a jury of five or six of the next towns, into cases of murder, persons found slain, 13 Edward I., cap. 9, 10, A.D. 1275.

2 Statute de Officio Coronatoris, 4 Edward I., stat. 2, a.d. 1276.

JUSTICES OF THE PEACE.-STATUTES.

115

drowned, or suddenly dead,—and also concerning treasuretrove, rapes, wounds (distinguishing between principals and accessaries), deodands, wrecks of the sea; and the coroner was empowered to take and imprison persons suspected of the death of any man, and to follow him with the hue and cry. The coroner was also (as he now is) the officer for executing the writs of the civil and criminal courts, in cases where the sheriff is a party concerned.

The preservation of the peace of each county, and the administration of justice in small felonies and misdemeanours, were committed to conservators and JUSTICES OF THE PEACE; and in each hundred or parish there was an array of constables and inferior officers, for executing the orders and behests of their superiors, and preserving peace in their respective localities.

When considering the STATUTES of the period under review, we must bear in mind that when Magna Charta was granted there were no statutes in existence. Our statutebook commences with a confirmation of the great charter, of the ninth year of Henry III., by Edward I., in the 25th year of his reign. Before Magna Charta the law was unwritten or common law; and as it was administered by judges dependent on the crown, we may imagine how desirable it was for the people to obtain a written declaration of the law, such as Magna Charta, which they could refer to, as well for the guidance or justification of their conduct, as for the redress of injuries to their persons or property. It must not, however, be supposed that the courts administered justice, on an arbitrary system of law or procedure. The rolls of the Curia Regis, even so early as the reign of Richard I., still exist, and have been published. According to eminent authority, "they show that our jurisprudence had assumed all those characteristics through and by which, greatly as they have been altered from age to age, it is distinguished at the present day." It is added that "these records exhibit, what the world cannot elsewhere show, the judicial system of a great and powerful nation running

parallel in development with the social advancement of the people whom that system ruled.1

Sir Edward Coke (following Littleton, on whose work his own is a commentary) calls Magna Charta, although in form a charter, yet, being granted by assent and authority of parliament, a statute; and remarks that it" is but a confirmation and restitution of common law;" also that “it is the foundation of all the fundamental laws of the realm.”2 Several of the statutes that follow it in the statute-book have the form of charters, or decrees of the king, and do not purport to have issued from any parliament or assembly. But there are also collections of statutes which, although proceeding from the king as his acts, were the offspring of a council or parliament; and those have received names taken from the places where the parliament assembled from which they issued. The earliest of these is the Provisiones de Merton, or statutes made at Merton, in the twentieth year of Henry III.; which purport to have been made at the court assembled for the coronation of the king and Eleanor the queen, and to have been made as well of the archbishops, bishops, earls, and barons, as of the king himself and others. Next is the Statutum de Malberge, or statutes made at Marlborough, in the fifty-second year of Henry III.; which does not mention the nobility by their titles, but probably refers to them as "the more discreet men of the realm, called together, as well of the higher as of the lower estate." In the reign of Edward I. there are similar collections, called the Statutes of Westminster, the Statutes of Gloucester, the Statute of Rutland, the Statute of Acton-Burnell and others.

In selecting from the general body of statutes those which have relation to the Constitution, civil and ecclesiastical, it will be convenient to class them under distinct heads, as follows:3

1 Rotuli Curia Regis, by Sir F. Palgrave; Introd. ii. iii.

2 Coke, Litt., lib. 2, s. 108.

3 If my readers should be deterred by this exposition of statute law, I

CONSTITUTIONAL STATUTES.

Civil.

117

1. Statutes concerning the liberty of the subject.

2. Statutes prohibiting taxation without consent of liament.

par

3. Statutes concerning the periodical assembling of parliaments.

4. Statutes regulating the mode of election, and the qualification of the electors of knights, citizens, and burgesses, for the commons' house of parliament.

5. Statutes concerning sheriffs.

6. Statutes concerning justices of the peace.

7. Statute concerning treason.

8. Statute concerning benevolences.

Ecclesiastical.

9. Statutes concerning the clergy.

10. Statutes of provisors, or in restraint of the Pope of Rome.

11. Statutes against heretics.

Under these sections it will be attempted to describe how the Constitution was modified or advanced by statute law, in its progress through the Middle Ages, and contemporaneously with the growth of parliament described in the preceding chapter. From these, together, a sufficient acquaintance may perhaps be obtained of the Constitution as it existed at the opening of the reign of Henry VII., when modern history is considered to commence; and from which would offer them the authority of Lord Bacon for introducing it. "And here I do desire those into whose hands this work shall fall, to take in good part my long insisting upon the laws that were made, . because in my judgment it is some defect even in the best writers of history, that they do not often enough summarily deliver and set down the most memorable laws that passed in the times whereof they write, being indeed the principal acts of peace. For though they may be had in original books of law themselves, yet that informeth not the judgment of kings and counsellors and persons of estate, so well as to see them described and entered in the table and portrait of the times." (Lord Bacon's History of Henry VII., Ellis and Spedding's edition, vol. vi. 97.)

...

« ZurückWeiter »