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the sheriff in his tourn, and not inaptly described as a man " indifferent between the lord and the law (e)."
A condition appears to have been annexed to every grant of a leet franchise, that the lord should appoint an able steward (f ), and this circumstance is much in favour of the more general opinion, that the lord cannot hold his own court leet. To this may also be added the decision in Cholmely & Morton (g), that the mayor, if owner of a fair, cannot be a good steward of it. And we find it laid down in various books, that the court leet is held before the steward, and that he is the judge in it (h); nor is the author aware that it is stated in any book of authority, that the lord or steward presides as judge of that court, though the expression, as referrible to a customary court, is by no means unfrequent (i).
(e) Powell on the Jurisdiction of Courts Leet, p. 43. It is there said that the lord cannot sit as judge in his own court, in regard that the profits of the court accrue to him; but this reasoning would equally apply to the disqualification of the sheriff in his tourn, if the statement be correct that he is intitled to the profits of the court. See Com. Dig. Leet (A).
“ The theory was said to be that suitors only were judges in county courts, but late decisions have ruled the sheriff to be judge also;" per Bayley, J., Durham Summer Assizes, 1830 ; and see Tinsley v. Nassau, 1 Moody & Malk. 52; post, p. 697, n. (a).
(1) Ante, p. 688. (8) 2 Sbo. 180.
(h) 4 Inst. 261; 6 Co. 12, in Jentleman's case ; Com. Dig. Leet, (M. 1); and see Dy. 70 b, in Withers v. Iseham; Co. Cop. s. 31, Tr. 50.
(i) Co Lit. 58 a; 4 Co. 26 b; Co. Cop. 8. 45, Tr. 102. But it is proper to notice, that, in the case of Queen & Jennings, 11 Mod. 215, C. J. Holt is stated to have said, “ that in a private leet the lord may sit as judge, and exclude the steward," to wbich is added, (but the author conceives as an observation only of the reporter,) “ Quære, if so in a publick leet."
The author cannot, however, bring his mind to the conclusion that the lord can preside as judge even in the court leet of a manor, situate within a hundred to which a leet jurisdiction is also appended; and there
are many such instances; vide Keene's case, 1 Freem. 348; The Queen o. Jennings, ubi sup. ; Rex v. King, 3 Keb. 197, 230, 251; Loader v. Samuel et al., Cro. Jac. 551; Cook v. Stubbs, ib. 583.
The sheriff's tourn is frequently designated by the ancient law writers the leet of the hundred, from the circumstance of the tourn having been held in each hundred; but when a leet jurisdiction is appended to a hundred, (ante, p. 681,) it is as much a private leet as the leet of a manor; and there would seem to be no other distinction between the two franchises than this, namely, that the hundred leet has jurisdiction over such matters as the manor leet should omit tu inquire of, just as the sheriff in his tourn bas jurisdiction over any matters omitted to be inquired of in the hundred court leet, or in the manor court leet, when no hundred leet exists.— The dictum therefore of C. J. Holt (if the authority for it is to be relied upon) must, the author thinks, be held to extend to courts leet generally.
In addition to the reasons already given for supposing that the lord cannot hold his court leet in person, see the language of the act 4 Ed. 4, c. 1, and the several other statutes subsequently extracted in the Appendix, authorizing stewards of courts leet to inquire of various offences. Vide also the act of 1 Eliz. c. 17, post,
pp. 692, 693.
Previously to the discussion of the general authority of the steward of the court leet, it may be expedient to take a brief view of the relative powers and duties of the steward and bailiff, more particularly as regards the mode of impanelling the leet jury; for this, with reference to the highly important functions connected with the elective franchise of some few ancient boroughs (k), may be thought to involve a great constitutional question, and is a subject which in abler hands, and unrestrained by the limits necessarily prescribed to a work like the present, could not fail to excite very considerable interest.
As a general proposition it must, the author thinks, be allowed, from considerations founded equally on principle and practice, that the steward of a court leet presides there wholly in a judicial character, and that every ministerial act is to be executed by the bedell or bailiff of the court (l), sworn to a due performance of his duty (m). This opinion cannot appear as a mere hypothesis to those who have contemplated the organic structure of the leet jurisdiction, and are familiar with the language of our ancient statutes and text writers, and the general system of court keeping.
We have seen that the tourn of the sheriff is a branch of the ancient shire-gemot court, over which the alderman (ealdorman or earl) presided, and that the shiregerieve (or sheriff), the next officer in rank in the shire, supplied his place when absent, and acted as his assessor when present; and that the decision on questions between party and party was by the votes of the whole assembly, collected by the lawmen, and regulated, as to any legal points that might arise, by a reference to the dome-boc, or law book (n).
These lawmen (lahmen) were the first students or professors of law, some of whom, after the accustomed previous examination, were ap
(k) See the Portreeve of Yeovil's case, It was held in Green v. Davies, 3 Barn. 2 Roll. Rep. 82; Peterborough case, & Ald. 60, that under a custom for a Heyw. B. 56; Milborne Port case, ib. court of pleas in a borough to be held be57, 63, 69; St. Mitchell case, ib. 378. fore the steward and portreeve, or their “ At Newport, in Cornwall, which has sufficient deputy or deputies, the conrt never had a charter of incorporation, the might be held by a person appointed to officers called vianders are annually elected act as deputy by one in whom both offices at the lord's leet, and are jointly the re- were united, such offices not being incomturning officers for the year.” “At St. patible. Michael, a portreeve chosen by a jury of (1) Co. Lit. 234 b; but a custom for the chief inhabitants, out of the six prin- the steward of a court leet to nominate cipal tenants, who are called deputy lords the persons to be summoned by the bailiff of the manor, makes the return; " ib. 60; as jurors, is good; The King v. Joliffe, and see the Borough of Fowey case, 1 2 Barn. & Cress. 54; and see Crane o. Peckw. 512, Append. ; 3 Barn. & Cress. Holtand, Cro. Car. 138; post, p. 700. 683, 685, in Rex v. Mayor, &c. of West (m) Kitch. 91; Scroggs, 99. Looe.
(n) Ante, p.
pointed assessors to the aldermen, shiregerieves, &c., and others acted as pleaders. Three appear to have been the number at first appointed to assist the alderman, &c. in judgment, but the number was afterwards increased to seven, and then to twelve. These assessors, or assistant judges, were sworn to a faithful discharge of their duties, and not to suffer any innocent man to be condemned, nor any guilty person to be acquitted. The institution of assessors would seem to have been even earlier than the reign of Alfred the Great (0).
It is, the author submits, but a natural inference that the sheriff, in his tourn, acted in the same judicial character as he was wont to fill in the parent court, the shiregemot, in the absence of the ealdorman; —and equally so, that on the introduction of the trial by jury (p), the judicial and ministerial characters in the sheriff's tourn were not blended, but that the office of impanelling the jury devolved on a subordinate officer of the court, corresponding with the bedell or bailiff of the court leet, and in exact accordance with the ministerial duty of the sheriff at the present day (9). That this was the practice in the tourn, and that this was originally, and as a constitutional principle, the practice also in the leet, may be thought to appear by the few references the author proposes to make to our statute law, and
(o) Some are of opinion that the lahmen tion existed in the time of the Conqueror; (and ræd-boran) of the Anglo Saxons, indeed it is supposed by some to have were the same with the jurors of more been introduced into this country in his modern times. But this opinion is open reign. The principle of the trial by jury to very strong objections. See 3 Henry's may be traced to the Anglo-Saxon custom Hist. of G. B. 346, 347; sed vide Tur- of allowing a party to clear himself of an ner's Hist. of the Anglo-Sax. l. 11, c. 9, accusation by compurgators, generally p. 270 et seq.
twelve in number, who were to swear See the article in the Edinb. Review, that they believed him innocent of the referred to ante, p. 669, n. (g), where it charge. But these juratores appear to is stated that the leet jury of the Anglo- have been originally named by the party Saxon Hundred was constituted of the accused, though afterwards, perhaps, by twelve eldest thanes, who were to go out the court, (Sulliv. 275,) and their funcwith the reeve, and to swear on the hali- tions seem to accord more with the prindome, that they would neither say forth ciple of our wager of law, than with that respecting the innocent, nor conceal the
of the trial by jury. guilty, and that these corresponded to the (9) It may be right to mention, that twelve men of the Raffstnæmpd of the the sheriff is in some cases constituted Swedish Hærad, but that in this assembly judge by act of parliament, as in re-disseisin the tithingmen were absent, and all crimi- by the stat. of Merton, c. 3, “ All his pronal proceedings must have been appeals ceeding by force of that act is of record, at the suit of individuals, except where and a writ of error lies on a judgment the Næmpdamen could make presentment given against him.” 6 Co. 12 a, citing of their own personal knowledge.
44 E. 3, 10; and see 1 Eliz. c. 17, s. 10, (p) It is not disputed that this institu- infrà ; 2 Barn. & Cress. 58.
to the combined theoretical and practical works of several very eminent lawyers.
In the Appendix to the first part of this treatise will be found an extract from an act of parliament passed in the reign of Richard the Third (r), which is, the author submits, conclusive evidence that the sheriff acted judicially only in the leet of the tourn, and that the jury were impanelled by the bailiff or other ministerial officer. The preamble of the above act is in these words: “ Forasmuch as divers great inconveniencies and perjuries do daily happen in divers shires of England by untrue verdicts given in inquisitions and inquiries before sheriffs in their tourns, by persons of no substance nor behaviour, nor dreading God, nor the world's shame, by reason whereof divers and many of the king's lieges of divers parts of England, by exciting and procuring of their evil willers be wrongfully indicted, and other that ought of right to be indicted, by such excitation and procuring oftentiines be spared, contrary to common right and to good conscience:” and it enacts, that no bailiff nor other officer should from thenceforth return or impanel any such person, in any shire of England, to be taken or put in or upon any such inquiry in any of the said tourns, but such as were of good name and fame, and had lands and tenements of freehold, within the same shires, to the clear yearly value of 20s. at the least, or of copyhold, to the clear yearly value of 26s. 8d. at the least; and that if any bailiff or other officer within the said counties should thereafter return or impanel any person contrary thereunto, he should lose for every person that he so impanelled and returned, not being of the sufficiency aforesaid, as often as he so offended, 40s., and the sheriff other 40s., the one half to the king and the other half to the person suing; and that every such indictment before any sheriff in his tourn otherwise taken should be void.
By 1 Eliz. c. 17, “ for the preservation of spawn and fry of fish,” it is enacted (ss. 8, 9 and 10), that the lord of every leet should have full power and authority to inquire of all the offences contrary to the
purport, tenor and form of that statute within the precinct of their said leet: such inquiry to be had in manner and form and after such sort as common amerciaments or other things inquirable in their court leet were lawfully used and accustomed to be bad and made : and that upon every such presentment had in any court or leet, by the oath of twelve men or more as aforesaid, of any offence or offences made contrary to the tenor of that statute, then all such forfeiture above in that statute limited and appointed for such offence should be unto the lord of the said leet for the time being to his own use for
(r) 1 R. 3, c. 4.
ever, and should be levied in such manner and form as amerciaments for affrays committed within the precinct of such leet were used and accustomed to be levied : and that if any leet after the first day of June then next should be kept, and the steward of the said leet for the time being, or other for him, did not charge the jury sworn in such leet to inquire of all the offences done within the precinct of the said leet contrary to the tenor and form of that statute, then the steward of the said leet to lose and forfeit 40s., the one moiety to the Queen, and the other moiety to the person suing for the same; and that if any jury sworn in any leet, and being charged to inquire of the offences committed within the precinct of that leet, did wilfully and willingly conceal and make default in presentment, or did not present the offence and offenders, then it should be lawful to the steward or bailiff of the leet, or his or their deputy for the time being, to impanel one other jury within the said leet, and to inquire of such concealment, default or non-presentment (s); and that upon such concealment, &c. found and presented, every of the said jurors which so did conceal, make default or not present, should lose and forfeit for every such offence 20s. to the lord of the said leet, the same to be levied in manner and form aforesaid for the other offences therein expressed.
By the Year-Book, 7 Hen. 6, 12 b, if the bailiff of the court or other officer refuse to make a panel to inquire, &c. upon the command of the steward, or refuse to execute his office, he may be fined; 1 Roll. Abr. 219 (Y.), pl. 2, 542 (Y.), pl. 3; Br. Leet, 14.
Kitchin, in tracing the origin of the court leet (p. 6), says, “ It is called the view of frank-pledge, for that the king there may be certified by the view of the steward how many people are within every leet, and also to have account and view by the steward of their good government and manners in every leet.”
Again (p. 82), Where one hath a leet he hath but the amercements, and the day is to the king, and for that the steward represents the person of the king," cites 41 Ed. 3, 27. (And see S. P. Powell, p. 33, citing 41 Ed.3, 31). Again (p. 82), Kitchin says, “ If the steward of the leet command the bailiff to impanel a jury to inquire for the king upon pain of 401., and he refuse to do it, he may put upon him the pain of 401., and at the second time 501. or more; and note, that upon all pains the lord may have an action of debt,” cites 7 Hen. 6, 13.
(s) See reference to this statute per Best, J., in The King v. Joliffe, 2 Barn. & Cress. 64. Scroggs (p. 16), says, “In some cases the steward may impanel a second jury to uire into the conceal
ments of the first, and fine them," cites this statute and 33 Hen. 8, c. 6. And see Kitch. p. 31. Sed vide 6 Geo. 4, c. 50, 8. 60; post, Sect. V.