PRIVATE WRONGS.
BOOK III.

CHAPTER THE SIXTH.

OF COURTS OF A SPECIAL JURISDICTION.

IN the two preceding chapters we have confidered the feveral courts, whofe jurifdiction is public and general; and which are fo contrived that fome or other of them may adminifter redrefs to every poffible injury than can arife in the kingdom at large. There yet remain certain others, whofe jurifdiction is private and fpecial, confined to particular fpots, or inftituted only to redrefs particular injuries. Thefe are

I. THE foreft courts, inftituted for the government of the king's forefts in different parts of the kingdom, and for the punifhment of all injuries done to the king's deer or venifon, to the vert or greenfwerd, and to the cover in which fuch deer are lodged. Thefe are the courts of attachments, of regard, of fweinmote, and of juftice-feat. 1. The court of attachments, wood-mote, or forty days court, is to be held before the verderors of the foreft once in every forty days ^a; and is inftituted to enquire into all offenders againft vert and venifon ^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 venifon or ftealing wood, or preparing fo to do, or by frefh and immediate purfuit after the act is done ^c; elfe they muft be attached by their goods. And in this forty days court the forefters or keepers are to bring in

.{FS}
^a Cart. de foreft. 9 Hen. III. c. 8.
^b 4 Inft. 289.
^c Carth. 79.
.{FE}
their
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their attachments, or prefentments de viridi et venatione; and the verderors are to receive the fame, and to enroll them, and to certify them under their feals to the court of juftice-feat, or fweinmote ^d: for this court can only enquire of, but not convict offenders. 2. The court of regard, or furvey of dogs, is to be holden every third year for the lawing or expeditation of maftiffs, which is done by cutting off the claws of the forefeet, to prevent them from running after deer ^e. No other dogs but maftiffs are to be thus lawed or expeditated, for none other were permitted to be kept within the precincts of the foreft; it being fuppofed that the keeping of thefe, and thefe only, was neceffary for the defence of a man's houfe ^f. 3. The court of fwinmote is to be holden before the verderors, as judges, by the fteward of the fweinmote thrice in every year ^g, the fweins or freeholders within the foreft compofing the jury. The principal jurifdiction of this court is, firft, to enquire into the oppreffions and grievances committed by the officers of the foreft; “de fuper-oneratione “foreftariorum, et aliorum miniftrorum foreftae; et de eorum oppreffionibus populo regis illatis:” and, fecondly, to receive and try prefentments certified from the court of attachments againft offences in vert and venifon ^h. And this court may not only enquire, but convict alfo, which conviction fhall be certified to the court of juftice-feat, which is held before the chief juftice in eyre, or chief itinerant judge, capitalis juftitiarius in itinere, or his deputy; to hear and determine all trefpaffes within the foreft, and all claims of franchifes, liberties, and privileges, and all pleas and caufes whatfoever therein arifing ^k. It may alfo proceed to try prefentments in the inferior courts of the forefts, and to give judgment upon convictions of the fweinmote. And the chief juftice may therefore after prefentment made or indictment found,

.{FS}
^d Cart. de foreft. c. 16.
^e Ibid. c. 6.
^f 3 Inft. 308.
^g Cart de foreft. c. 8.
^h Stat. 34 Edw. I. c. 1.
ⁱ 4 Inft. 289.
^k 4 Inft. 291.
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but
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but not before ^l, iffue his warrant to the officers of the foreft to apprehend the offenders. It may be held every third year; and forty days notice ought to be given of it's fitting. This court may fine and imprifon for offences within the foreft ^m, it being a court of record: and therefore a writ of error lies from hence to the court of king's bench, to rectify and redrefs any mal-adminiftrations of juftice ⁿ; or the chief juftice in eyre may adjourn any matter of law into the court of king's bench ^o. Thefe juftices in eyre were inftituted by king Henry II, A. D. 1184 ^p; and their courts were formerly very regularly held: but the laft court of juftice feat 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 fir William Jones. After the reftoration another was held, pro forma only, before the earl of Oxford ^q; but fince the aera of the revolution in 1688, the foreft laws have fallen into total difufe, to the great advantage of the fubject.

II. A SECOND fpecies of private courts, is that of commiffioners of fewers. This is a temporary tribunal, erected by virtue of a commiffion under the great feal; which formerly ufed to be granted pro re nata at the pleafure of the crown ^r, but now at the difcretion and nomination of the lord chancellor, lord treafurer, and chief juftices, purfuant to the ftatute 23 Hen. VIII. c. 5. Their jurifdiction is to overlook the repairs of fea banks and fea walls; and the cleanfing of rivers, public ftreams, ditches and other conduits, whereby any waters are carried off: and is confined to fuch county, or particular diftrict as the commiffion fhall expreffly name. The commiffioners are a court of record, and may fine and imprifon for contempts ^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 fafe-

.{FS}
^l Stat. 1 Edw. III. c. 8. 7 Ric. II. c. 4.
^m 4 Inft. 313.
ⁿ Ibid. 297.
^o Ibid. 295.
^p Hoveder.
^q North's life of lord Guilford. 45.
^r F. N. B. 115.
^s 1 Sid. 145.
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guard and confervation of the fewers within their commiffion, either according to the laws and cuftoms of Romney-marfh ^t, or otherwife at their own difcretion. They may alfo affefs fuch rates, or fcots, upon the owners of lands within their diftrict, as they fhall judge neceffary: and, if any perfon refufes to pay them, the commiffioners may levy the fame by diftrefs of his goods and chattels; or they may, by ftatute 23 Hen. VIII. c. 5. fell his freehold lands (and by the 7 Ann. c. 10. his copyhold alfo) in order to pay fuch fcots or affeffments. But their conduct is under the control of the court of king's bench, which will prevent or punifh any illegal or tyrannical proceedings ^u. And yet in the reign of king James I, (8 Nov. 1616.) the privy council took upon them to order, that no action or complaint fhould be profecuted againft the commiffioners, unlefs before that board; and committed feveral to prifon who had brought fuch actions at common law, till they fhould releafe the fame: and one of the reafons for difcharging fir Edward Coke from his office of lord chief juftice was for countenancing thofe proceedings ^v. The pretence for which arbitrary meafures was no other then the tyrant's plea ^w, of the neceffity of unlimited powers in works of evident utility to the public, “the fupreme reafon above all reafons, which “is the falvation of the king's lands and people.” But now it is clearly held, that this (as well as all other inferior jurifdictions) is fubject to the difcretionary coercion of his majefty's court of king's bench ^x.

III. The court of policies of affurance, when fubfifting, is erected in purfuance of the ftatute 43 Eliz. c. 12. which recites the immemorial ufage of policies of affurance, “by means whereof “it cometh to pafs, upon the lofs or peirfhing of any fhip, there

.{FS}
^t Tomney-marfh in the county of Kent, a tract containing 24000 acres, is governed by certain antient and equitable laws of fewers, compofed by Henry de Bathe, a venerable judge in the reign of king Henry the third; from which laws all commiffioners of fewers in England may receive light and direction. (4 Inft. 276.)
^u Cro. Jac. 336.
^v Moor. 825, 826. See pag. 54.
^w Milt. parad. Loft. iv. 393.
^x 1 Ventr. 66. Salk. 146.
.{FE}
“followeth
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“followeth not the undoing of any man, but the lofs lighteth “rather eafily upon many than heavily upon few, and rather “upon them that adventure not, than upon thofe that do adventure; whereby all merchants, efpecially thofe of the younger “fort, are allured to venture more willingly and more freely: and “that heretofore fuch affurers had ufed to ftand fo juftly and “precifely upon their credits, as few or no controverfies had “arifen thereupon; and if any had grown, the fame had from “time to time been ended and ordered by certain grave and difcreet merchants appointed by the lord mayor of the city of “London; as men by reafon of their experience fitteft to underftand and fpeedily decide thofe caufes:” but that of late years divers perfons had withdrawn themfelves from that courfe of arbitration, and had driven the affured to bring feparate actions at law againft each affurer: it therefore enables the lord chancellor yearly to grant a ftanding commiffion 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 barrifter, are thereby and by the ftatute 13 & 14 Car. II. c. 23. empowered to determine in a fummary way all caufes concerning policies of affurance in London, with an appeal (by way of bill) to the court of chancery. But the jurifdiction being fomewhat defective, as extending only to London, and to no other affurances but thofe on merchandize ^y, and to fuits brought by the affured only and not by the infurers ^z, no fuch commiffion has of late years iffued: but infurance caufes are now ufually determined by the verdict of a jury of merchants, and the opinion of the judges in cafe of any legal doubts; whereby the decifion is more fpeedy, fatisfactory, and final: though it is to be wifhed, that fome of the parliamentary powers invefted in thefe commiffioners, efpecially for the examination of witneffes, either beyond the feas or fpeedily going out of the kingdom ^a, could at prefent be adopted by the courts of Weftminfter-hall, without requiring the confent of parties.

.{FS}
^y Styl. 166.
^z 1 Show. 396.
^a Stat. 13 & 14 Car. II. c. 22. §. 3 & 4.
.{FE}
K 2
IV. THE
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IV. THE court of the marfhalfea, and the palace court at Weftminfter, though two diftinct courts, are frequently confounded together. The former was originally holden before the fteward and marfhal of the king's houfe, and was inftituted to adminifter juftice between the king's domeftic fervants, that they might not be drawn into other courts, and thereby the king lofe their fervice ^b. It was formerly held in, though not a part of, the aula regis ^c; and, when that was fubdivided, remained a diftinct jurifdiction: holding plea of all trefpaffes committed within the verge of the court, where only one of the parties is in the king's domeftic fervice (in which cafe the inqueft fhall 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 houfhold; and then the inqueft fhall be compofed of men of the houfhold only ^d. By the ftatute of 13 Ric. II. ft. 1. c. 3. (in affirmance of the common law ^e) the verge of the court in this refpect extends for twelve miles round the king's place of refidence ^f. And, as this tribunal was never fubject to the jurifdiction of the chief jufticiary, no writ of error lay from it (though a court of record) to the king's bench, but only to parliament ^g, till the ftatute of 5 Edw. III. c. 2. and 10 Edw. III. ft. 2. c. 3. which allowed fuch writ of error before the king in his place. But this court being ambulatory, and obliged to follow the king in all his progreffes, fo that by the removal of the houfhold, actions were frequently difcontinued ^h, and doubts having arifen as to the extent of it's jurifdiction ^I, king Charles I in the fixth year of his reign by his letters patent erected a new court of record, called the curia palatu or palace court, to be held before the fteward of the houfhold

^b 1 Bulftr. 211.
^c Flet. l. 2. c. 2.
^d Artic. fup. Cart. 28 Edw. I. c. 3. Stat. 5 Edw. I. c. 2. 10 Edw. III. ft. 2. c. 2.
^e 2 Inft. 548.
^f By the antient Saxon conftitution, the pax regia, or privilege or the king's palace, extended from his palace gate to the diftance of three miles, three furlongs, three acres, nine feet, nine palms, and nine barley corns; as appears from a fragment of the textur Roffenfis cited in Dr. Hickes's by fertat. Epiftol. 114.
^g 1 Bulftr. 211. 10 Rep. 79.
^h F. N. B. 241. 2 Inft. 548.
^I 1 Bulftr. 209.
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and
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and knight marfhal, and the fteward of the court, or his deputy; with jurifdiction to hold plea of all manner of perfonal actions whatfoever, which fhall arife between any parties within twelve miles of his majefty's palace at Whitehall ^k. The court is now held once a week, together with the antient court of marfhalfea, in the borough of Southwark: and writ of error lies from thence to the court of king's bench. But, if the caufe is of any confiderable confequence, it is ufually removed on it's firft commencement, together with the cuftody of the defendant, either into the king's bench or common pleas by a writ of habeas corpus cum caufa: and the inferior bufinefs of the court hath of late years been much reduced, by the new courts of confcience erected in the environs of London; in confideration of which the four counfel belonging to thefe courts had falaries granted them for their lives by the ftatute 23 Geo. II. c. 27.

V. A FIFTH fpecies of private courts of a limited, though extenfive, jurifdiction are thofe of the principality of Wales; which upon it's thorough reduction, and the fettling of it's polity in the reign of Henry the eighth ^l, were erected all over the country; principally by the ftatute 34 & 35 Hen. VIII. c. 26. though much had before been done, and the way prepared by the ftatute of Wales, 12 Edw. I. and other ftatutes. By the ftatute of Henry the eighth before-mentioned, courts-baron, hundred, and county courts are there eftablifhed as in England. A feffions is alfo to be held twice in every year in each county, by judges appointed by the king, to be called the great feffions of Wales: in which all pleas of real and perfonal actions fhall be held, with the fame form of procefs and in as ample a manner as in the court of common pleas at Weftminfter: and writs of error fhall lie from judgments therein (it being a court of record) to the court of king's bench at Weftminfter. But the ordinary original writs or procefs of the king's courts at Weftminfter do not run into the principality of Wales ^m; though procefs of execution does ⁿ: as do alfo all

.{FS}
^k 1 Sid. 182. Salk. 439.
^l See vol. I. introd. §. 4.
^m 2 Roll. Rep. 141.
ⁿ 2 Bulftr. 136. 2 Sarnd. 193. R??? 206.
.{FE}
proro-
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prerogative writs, as writs of certiorari, mandamus, and the like ^o. And even in caufes between fubject and fubject, to prevent injuftice through family factions and prejudices, it is held lawful (in caufes of freehold at leaft, if not in all others) to bring an action in the Englifh courts, and try the fame in the next Englifh county adjoining to that part of Wales where the caufe arifes ^p.

VI. THE court of the duchy chamber of Lancafter is another fpecial jurifdiction, held before the chancellor of the duchy or his deputy, concerning all matters of equity relating to lands holden of the king in right of the duchy of Lancafter ^q: which is a thing very diftinct from the county palatine, and comprizes much territory which lies at a vaft diftance from it; as particularly a very large diftrict within the city of Weftminfter. The proceedings in this court are the fame as on the equity fide in the courts of exchequer and chancery ^r; fo that it feems not to be a court of record: and indeed it has been holden that thofe courts have a concurrent jurifdiction with the duchy court, and may take cognizance of the fame caufes ^s.

VII. ANOTHER fpecies of private courts, which are of a limited local jurifdiction, and have at the fame time an exclufive cognizance of pleas, in matters both of law and equity ^t, are thofe which appertain to the counties palatine of Chefter, Lancafter, and Durham, and the royal franchife of Ely ^u. In all thefe, as in the principality of Wales, the king's ordinary writs, iffuing under the great feal 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 thefe counties palatine, they had of courfe the fole adminiftration of juftice, by their own judges appointed by themfelves and not by the crown. It would therefore be incongruous for the king to fend his writ to direct the judge of another's court

.{FS}
^o Cro. Jac. 484.
^p Vaugh. 413. Hardr. 66.
^q Hob. 77. 2 Lev. 24.
^r 4 Inft. 206.
^s 1 Chan. Rep. 55. Toth. 145. Hardr. 171.
^t 4 Inft. 213. Finch. R. 452.
^u see vol. I. introd. §. 4.
.{FE}
in
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in what manner to adminifter juftice between the fuitors. But, when the privileges of thefe counties palatine and franchifes were abridged by ftatute 27 Hen. VIII. c. 24. it was alfo enacted, that all writs and procefs fhould be made in the king's name, but fhould be tefte'd or witneffed in the name of the owner of the franchife. Wherefore all writs, whereon actions are founded, and which have current authority here, muft be under the feal of the refpective franchifes; the two former of which are now annexed to the crown, and the two latter under the government of their feveral bifhops. And the judges of affife, who fit therein, fit by virtue of a fpecial commiffion from the owners of the feveral franchifes, and under the feal thereof; and not by the ufual commiffion under the great feal of England. Hither alfo may be referred the courts of the cinque ports, or five moft important havens, as they formerly were efteemed, in the kingdom; viz. Dover, Sandwich, Romney, Haftings, and Hythe; to which Winchelfey and Rye have been fince added: which have alfo fimilar franchifes in many refpects ^w with the counties palatine, and particularly an exclufive jurifdiction (before the mayor and jurats of the ports) in which exclufive jurifdiction 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 ^x. And fo too a writ of error lies from all the other jurifdictions to the fame fupreme court of jurifdiction ^y, s an enfign of fuperiority referved to the crown at the original creation of the franchifes. And all prerogative writs (as thofe of habeas corpus, prohibition, certiorari, and mandamus) may iffue for the fame reafon to all thefe exempt jurifdictions ^z; becaufe the privilege, that the king's writ runs not muft be intended between party and party, for there can be no fuch privilege againft the king ^a.

.{FS}
^w 1 Sid. 166.
^x Jenk. 71. Dyverfyte des courts. t. bank le rey. 1 Sid. 356.
^y Bro. Abr. t. error. 74. 101. Davis 62. 4 Inft. 38. 214. 218.
^z 1 Sid. 92.
^a Cro. Jac. 543.
.{FE}
VIII. THE
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VIII. THE ftannary courts in Devonfhire and Cornwall for the adminiftration of juftice among the tinners therein, are alfo courts of record, but of the fame private and exclufive nature. They are held before the lord warden and his fubftitutes, in virtue of a privilege granted to the workers in the tinmines there, to fue and be fued only in their own courts, that they may not be drawn from their bufinefs which is highly profitable to the public, by attending their lawfuits in other courts ^b. The privileges of the tinners are confirmed by a charter, 33 Edw. I. and fully expounded by a private ftatute, 50 Edw. III. which ^c has fince been explained by a public act, 16 Car. I. c. 15. What relates to our prefent purpofe is only this: that all tinners and labourers in and about the ftannaries fhall, during the time of their working therein bona fide, be privileged from fuits in other courts, and be only impleaded in the ftannary courts in all matters, excepting pleas of land, life, and member. No writ of error lies from hence to any court in Weftminfter-hall; as was agreed by all the judges ^d in 4 Jac. I. But an appeal lies from the fteward 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 ^e, when he hath had livery or inveftiture of the fame ^f. And from thence the appeal lies to the king himfelf, in the laft refort ^g.

IX. THE feveral courts within the city of London ^h, and other cities, boroughs, and corporations throughout the kingdom, held by prefcription, charter, or act of parliament, are alfo of the fame private and limited fpecies. It would exceed the defign

.{FS}
^b 4 Inft. 232.
^c See this at length in 4 Inft. 232.
^d 4 Inft. 231.
^e Ibid. 230.
^f 3 Bulftr. 183.
^g Doderidge hift. of Cornw. 94.
^h The chief of thofe in London are the Beriffs courts, holden before their fteward or judge; from which a writ of error lies to the court of huftings, before the mayor, recorder, and fheriffs; and from thence to juftices appointed by the king's commiffion, who ufed to fit in the church of St. Martin le grand. (F. N. B. 32.) And from the judgment of thofe juftices a writ of error lic. Immediately to the houfe of lords.
.{FE}
and
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and compafs of our prefent enquiries, if I were to enter into a particular detail of thefe, and to examine the nature and extent of their feveral jurifdictions. It may in general be fufficient to fay; that they arofe originally from the favour of the crown to thofe particular diftricts, wherein we find them erected, upon the fame principle that hundred-courts, and the like, were eftablifhed; for the conveyance of the inhabitants, that they might profecute their fuits, and receive juftice at home: that, for the moft part, the courts at Weftminfter-hall have a concurrent jurifdiction with thefe, or elfe a fuper-intendency over them ^I: and that the proceedings, in thefe fpecial courts ought to be according to the courfe of the common law, unlefs otherwife ordered by parliament; for though the king may erect new courts, yet he cannot alter the eftablifhed courfe of law.

BUT there is one fpecies of courts, conftituted by act of parliament, in the city of London and other trading and populous diftricts, which in it's proceedings fo varies from the courfe of the common law, that it may deferve a more particular confideration. I mean the courts of requefts, or court of confcience, for the recovery of fmall debts. The firft of thefe was eftablifhed in London, fo early as the reign of Henry the eighth, by an act of their common council; which however was certainly infufficient for that purpofe and illegal, till confirmed by ftatute 3 Jac. I. c. 15. which has fince been explained and amended by ftatute 14 Geo. II. c. 10. The conftitution is this: two aldermen, and four commoners, fit twice a week to hear all caufes of debt not exceeding the value of forty fhillings; which they examine in a fummary way, by the oath of the parties or other witneffes, and make fuch order therein as is confonant to equity and good confcience. The time and expence of obtaining this fummary redrefs are very inconfiderable, which make it a great benefit to trade; and thereupon divers trading towns and other diftricts have, within thefe few years laft paft, obtained acts of parliament, for eftablifhing in them courts of confcience upon nearly

.{FS}
^I Salk. 144. 263.
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the

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the fame plan. The firft of which was that for Southwark by ftatute 22 Geo. II. c. 47. which has fince been followed by very many others ^k.

THE anxious defire, that has been fhewn to obtain thefe feveral acts, proves clearly that the nation in general is truly fenfible of the great inconvenience, arifing from the difufe of the antient county and hundred-courts; wherein caufes of this fmall value were always formerly decided, with very little trouble and expenfe 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 thefe new jurifdictions) may itfelf be attended in time with very ill confequences: as the method of proceeding therein is entirely in derogation of the common law; as their large difcretionary powers create a petty tyranny in a fet of ftanding commiffioners; and as the difufe of the trial by jury may tend to eftrange the minds of the people from that valuable prerogative of Englifhmen, which has already been more than fufficiently excluded in many inftances. How much rather is it to be wifhed, that the proceedings in the county and hundred-courts could again be revived, without burthening the freeholders with too frequent and tedious attendances, but at the fame time removing the delays that have infenfibly crept into their proceedings, and the power that either party have of transferring at pleafure their fuits to the courts at Weftminfter ! And we may with fatisfaction obferve, that this experiment has been actually tried, and has fucceeded in the populous county of Middlefex; which might ferve as an example for others. For by ftatute 23 Geo. II. c. 33. it is enacted, 1. That a fpecial county court fhall be held, at leaft once a month in every hundred of the county of Middlefex, by the county clerk. 2. That twelve freeholders of that

.{FS}
^k As for Weftminfter, and the Tower-Hamlets; 23 Geo. II. Lincoln; 24 Geo. II. Brimingham, St. Albans, Liverpool, and Canserbury; 25 Geo. II. Sheffield; 29 Geo. II. Brixten, and Yarmouth; 31 Geo. II. High Peak, Derbyfhire; 33 Geo. II. Bradford, Melkfham, and Whorlfdown; 3 Geo. III. Dancafter and Kirkby in Kendal; 4 Geo. III. and certain hundreds in Kent and Wiles; 5 Geo. III.
.{FE}
hundred,
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Ch. 6.
hundred, qualified to ferve on juries, and ftruck by the fheriff, fhall be fummoned to appear at fuch court by rotation; fo as none fhall be fummoned oftener than once a year. 3. That in all caufes, not exceeding the value of forty fhillings, the county clerk and twelve fuitors fhall proceed in a fummary way, examining the parties and witneffes on oath, without the formal procefs antiently ufed; and fhall make fuch order therein as they fhall judge agreeable to confcience. 4. That no plaints fhall be removed out of this court, by any procefs whatfoever; but the determination herein fhall be final. 5. That if any action be brought in any of the fuperior courts againft a perfon refident in Middlefex, for a debt or contract, upon the trial whereof the jury fhall find lefs than 40 s. damages, the plaintiff fhall recover no cofts, but fhall pay the defendant double cofts; unlefs upon fome fpecial circumftances, to be certified by the judge who tried it. 6. Laftly, a table of very moderate fees is prefcribed and fet down in the act. Which are not to be exceeded upon any account whatfoever. This is a plan entirely agreeable to the conftitution and genius of the nation: calculated to prevent a multitude of vexatious actions in the fuperior courts, and at the fame time to give honeft creditors an opportunity of recovering fmall fums; which now they are frequently deterred from by the expenfe of a fuit at law: a plan which, in fhort, wants only to be generally known, in order to it's univerfal reception.

X. THERE is yet another fpecies of private courts, which I muft not pafs over in filence: viz. the chancellor's courts in the two univerfities of England. Which two learned bodies enjoy the fole jurifdiction, in exclufion of the king's courts, over all civil actions and fuits whatfoever, where a fcholar or privileged perfon is one of the parties; excepting in fuch cafes where the right of freehold is concerned. And thefe by the univerfity charter they are at liberty to try and determine, either according to the common law of the land, or according to their own local cuftoms, at their difcretion: which has generally led them to
L 2
carry
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carry on their procefs in a courfe much conformed to the civil law, for reafons fufficiently explained in a former volume ^l.

THESE privileges were granted, that the ftudents might not be diftracted from their ftudies by legal procefs from diftant courts, and other forenfic avocations. And privileges of this kind are of very high antiquity, being generally enjoyed by all foreign univerfities as well as our own, in confequence (I apprehend) of a conftitution of the emperor Frederick, A. D. 1158 ^m. But as to England in particular, the oldeft charter that I have feen, containing this grant to the univerfity of Oxford was 28 Hen. III. A. D. 1244. And the fame privileges were confirmed and enlarged by almoft every fucceeding prince, down to king Henry the eighth; in the fourteenth year of whofe reign the largeft and moft extenfive charter of all was granted. One fimilar to which was afterwards granted to Cambridge in the third year of queen Elizabeth. But yet, notwithftanding thefe charters, the privileges granted therein, of proceeding in a courfe different from the law of the land, were of fo high a nature, that they were held to be invalid; for though the king might erect new courts, yet he could not alter the courfe of law by his letters patent. Therefore in the reign of queen Elizabeth an act of parliament was obtained ⁿ, confirming all the charters f the two univerfities, and thofe of 14 Hen. VIII. and 3 Eliz. by name. Which bluffed act, as fir Edward Coke intitles it ^o, eftablifhed this high privilege without any doubt or oppofition ^p: or, as fir Matthew Hale ^q very fully expreffes the fenfe of the common law and the operation of the act of parliament, “although king Henry the “eighth, 14 A. R. fui, granted to the univerfity a liberal charter, to proceed according to the ufe of the univerfity; viz. by “a courfe much conformed to the civil law; yet that charter “had not been fufficient to have warranted fuch proceedings

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^l Vol. I. introd. §. 1.
^m cod. 4. tit. 13.
ⁿ 13 Eliz. c. 29.
^o 4 Inft. 227.
^p Jenk. Cent. 2. pl. 88. Cent. 3. pl. 33. Hardr. 504. Godbolt. 201.
^q Hift. C. L. 33.
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“without
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“without the help of an act of parliament. And therefore in “13 Eliz. an act paffed, 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 themfelves “of common law cognizance, where either of the parties is “privileged.”

THIS privilege, fo far as it relates to civil caufes, is exercifed at Oxford in the chancellor's court; the judge of which is the vice-chancellor, his deputy, or affeffor. From his fentence an appeal lies to delegates appointed by the congregation; from thence to other delegates of the houfe of convocation; and if they all three concur in the fame fentence it is final, at leaft by the ftatute of the univerfity ^r, according to the rule of the civil law ^s. But, if there be any difcordance or variation in any of the three fentences, an appeal lies in the laft refort to judges delegates appointed by the crown under the great feal in chancery.

I HAVE now gone through the feveral fpecies of private, or fpecial courts, of the greateft note in the kingdom, inftituted for the local redrefs of private wrongs; and muft, in the clofe of all, make one general obfervation from fir Edward Coke ^t: that thefe particular jurifdictions, derogating from the general jurifdiction of the courts of common law, are ever taken ftrictly, and cannot be extended farther that the exprefs letter of their privileges will moft explicitely warrant.

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^r Tit. 21. §. 19.
^s Cod. 7. 70. 1.
^t 2 Inft. 548.
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