Imágenes de páginas

regis those who held of the king in capite; and this is considered to have been the foundation of the English parliament, as far as regards the jurisdiction of the Upper House; but whether the Commons of England made part of that assembly, or at what period the Lower House was instituted on its present representative system, does not elearly appear (e); the more general opinion however is, that barones majores (f) were alone summoned to the curia regis, and that the barones minores first sat by representation in the reign of Henry III. (g), the overwhelming influence of the greater barons inducing the institution of this popular assembly (h).

And it is generally supposed that about this period, or as some say about the 23 Edward I., the crown was induced, as a further check to the power of the barons, to create a certain number of free boroughs (i), conferring the privilege of returning two of their burgesses to share with the knights of the shire the legislative powers of the third estate of the high court of parliament. It is observable, however, that these grants were quite distinct from charters of incorporation, which came into use about the reign of Henry the Fifth, and in some of which, particularly those granted after the reign of Henry the Sixth, the common law right of voting was altered, and in others not so. But the greater proportion of lay corporations appears to have been created in and subsequently to the reign of Queen Elizabeth.

(e) The Commons of England certainly attempted, 17 John, to bring in the baappear to have formed part of the Wit- rones minores, as appears by the great tena-gemot courts, or parliamentary as- charter granted by him at Runnymede. semblies, in the Saxon era. And it is a (i) Vide Mr. Serjeant Merewether's natural conclusion that the parliament is observation in his preface to the Report not a feudal institution, but has resulted of the West Looe case, that it was not from the concentration of the remedial in consequence

of their being trading and judicial authorities of the kingdom. towns that the boroughs were summoned Ante, p. 677, n. (2).

to send representatives to parliament, as (f) Ante, p. 600, n. (a).

advocated by Dr. Brady and others, (8) Brady's Answer to Petit, 133; though at an early period of our history Camd. Britt. 13; Dugd. Orig. Jur. 18; burgesses were summoned by special writs but see 4 Inst. 2, where Lord Coke says for special purposes, as to settle the that Lords and Commons of ancient times staple, &c.; and see 2 Pryn. B. P. R. sat together, and refers to Rot. Parl. 5 Ed. 95 et seq.; 4 Pryn. P. W. 186 et seq. 3, nu. 3.

So also port towns, some not being boAnd it is by no means improbable, that roughs, and others which were then reafter the greater barons were allowed to presentative boroughs, were summoned by alienate their lands in fee, those holding a writ to send three or four masters of of them by subinfeudation, and termed vessels, or others of the town if there were the barones minores, were summoned to not sufficient masters of vessels, to a counconvocation for a time, and that these cil at Westminster, to treat with the king, afterwards constituted the knights of the or with others of his council, upon certain shire, or representatives of counties, in the matters relating to the king and his honour, lower house.

and the defence and preservation of the (h) Spelm. Gloss. 69; Seld. tit. Hon. realm, and the shipping thereof; see the 692. Selden does not determine the above preface of Mr. Serjeant Merewepoint, but (p. 704, ib.) says that it was ther, p. 5.

The power of the justiciar (k) and of the barons becoming equally a subject of jealousy with the crown, it was deemed necessary to introduce a new judicial policy, which gave rise to the courts as they now exist in Westminster Hall. And to obtain countenance to this division of the courts, the king himself sat in person in the Court of King's Bench, and hence the power which that court still retains over other jurisdictions, and the idea of the king being always present in it(1).

When the courts of Westminster Hall began to draw to themselves the jurisdiction of the courts existing under the Anglo-Saxon jurisprudence, and after this important change in the administration of justice had introduced the offices of justices errant or itinerant (m), justices of assize and of guol delivery, and of the peace, with the courts of quarter sessions (n), &c., the jurisdiction of the county court was restrained to pleas of debt under 40s., and all pleas of land were discussed in the higher tribunals; and in course of time the various mote or moot courts of which we have spoken fell altogether into disuse. Nor was it likely that the leet, so analogous in its juridical character and powers to that branch of the county court which is called the sheriff's tourn, should long survive the shock of this great

(k) This power is represented by Sir ward the First sat at the Stone-cross, William Blackstone to have induced King (opposite the Bishop of Worcester's house, John to consent to that article which now Somerset-place,) in the Strand. This forms the 11th chapter of Magna Charta, venerable monument, which was even then and enacts that “communia placita non ancient, (Pat. 4 Edw. 2, pl. 2 m, 15 d,) is sequantur curiam regis, sed teneantur in mentioned by Stow as standing headless aliquo loco certo;" 3 Com. p. 39.

in 1598. The justices probably in bad (1) 2 Bacon Abr. 95.

weather sometimes sat in the bishop's (m) The proceedings of the court of house, as the steward or bailiff of a leet the justices in Eyre (in itinere) show that would, for the same reason, occasionally it was in effect nearly the same as the do in the church, where, notwithstanding Saxon Shire-gemot.

See the MS. for- a canon, (1 Burn. E. L. 361,) it is in merly belonging to Sir Matthew Hale in many places still held.” And in another Lincoln's Inn Library. Mr. Ritson, in part (p. 15), the same author observes, his treatise on courts leet (p. 7, n. u.,) in “Dr. Hickes thought that justices itineadverting to the practice among our an- rant were originally instituted by Henry cestors of administering justice in the II.; Dis. Epis. pp. 8, 48; but Mr. Madox most public manner, and generally, for has produced evidence of their existence the convenience of the suitors, in the open in the reign of King Stephen; (Hist. Ex: air, (see ante, p. 672,) and as a curious il

p. 100).” lustration of that principle, observes that (n) Vide 1 Ed. 4, c. 2; post, p. 685, “the justices itinerant in the time of Ed- n. (e).

innovation, and hence may be traced the very mouldering state of that once venerable fabric the court leet.

It is clear, however, that the ancient powers of the leet are but little circumscribed by any legislative ordination; on the contrary, that they have been recognized and enlarged by several acts of parliament: the author will now therefore the more unhesitatingly proceed to a further illustration of the constitution, and to an inquiry into the present practice of this relic of Saxon jurisprudence.

Appendancy of the Leet (0).

It will necessarily be inferred from the preceding observations on the nature and origin of the court leet, that it may be appendant to a hundred (p) or to a manor (9). And although there possibly may be instances of leet jurisdictions existing by prescription (r) as separate and unappended franchises, yet as the court was instituted under the powerful influence of the ancient thanes or barons, to invest them with precisely the same judicial character as the sheriff in his tourn, and for the ease of their tenantry, (who were thereby excused from attending the tourn, held, perhaps, at some distant part of the hundred(s),) it is very possible that such franchises, if any do exist, were originally granted by the crown with reference to some manorial possessions, over which the grantee exercised baronial powers, though the fact is incapable of being established at this far distant period, in the absence of the original grants, and also, perhaps, of the more ancient court rolls.

A leet may also be appendant to a vill, or to an ancient mes

(0) The style of the court is, “The court leet with view of frank-pledge of E. C., Knight, held, &c.:" and if appendant to a manor and held with the court baron, it may be thus, “The court leet with view of frank-pledge, and court baron, of E. C., Knight, for the manor of S., &c.”

(p) And see 8 Hen. 7, 1; Mar. 75 ; Lord Norris o. Barret, Mo. 426; Lawson v. Hare, 2 Leo. 74; 2 Inst. 122. But Kitch. (p. 78), says that a leet is of necessity incident to a hundred, and cites the above case from the Year Book (8 Hen. 7, 1); and see Br. Leet, 23, citing 13 Hen. 7, 19. Yet it has been held that a leet is not incident to a hundred, as one liberty cannot be incident to another, but that a leet may be appendant to a hundred; 12

Hen. 7, 16; Br. Leet, pl. 24 ; ib. Incidents, pl. 18.

(9) 33 Hen. 6, 4; 18 Hen. 6, 11; Br. Incidents, pl. 2, 29; 1 Leo. 218. Where three coparceners were seized of a manor in fee, to which a leet was appendant, and the king purchased two parts of the manor, it was adjudged that the leet was still appendant to the third part of the manor ; Bendl. 11, pl. 45; 1 And. 26 ; Dy. 30 b, pl. 209.

(r) A title to a leet may clearly be made by prescription only; Co. Litt. 114 b; 2 Inst. 72; ante, p. 669. But it gives no title to the wastes ; Br. Leet, 2; ante, p. 669, n. (d).

(s) Ante, pp. 669, 670.

suage(t), but it cannot be prescribed for as an appendant to a church or chapel (u).

It frequently happens in chartered boroughs that the corporation are lords of a manor, purchased under a license of mortmain, extending over the precincts of the borough, to which manor a leet jurisdiction is appendant; and in those instances the franchise exactly accords with the leet of a private person.

In other boroughs and large towns which have not received a charter of incorporation, the mayor or bailiff, or other chief municipal officer, is chosen at the court leet appended to the manor of some private lord, whose jurisdiction encompasses the particular borough or town(x); and those places may therefore be said to have no other local magistracy than the common law officer of the court leet. And even in some corporate places the common law election of a chief magistrate is still imitated (y).

Ancient leets, indeed, were equivalent in all respects to corporate. jurisdictions; and all corporations and their powers have been superinduced upon the leet, the capital burgesses in corporate towns corresponding with the members of the leet jury of ancient boroughs (z).

When a leet exists in a borough or town, and the powers of the court are exercisable by the mayor, or other chief magisterial officer, and there is no trace of its original institution, it is not devoid of probability that the jurisdiction does not exist under a grant from the crown, as an appendant franchise, but that it is a more immediate vestige of the Anglo-Saxon jurisprudence, the term leet now used in the style of the court having, in the adaptation of modern terms to ancient institutions, succeeded to that of folcmote (a).

When the Court Leet is to be held.

By Magna Charta, c. 35, no sheriff or his bailiff shall keep his tourn in the hundred but twice in the year, once after Easter, and again after the feast of Saint Michael (b), and the view of frank

(1) 19 Hen. 6, 11; Br. Incidents, 29. post, p. 699, n. (e); The King v. The For it may be presumed that the house is Duke of Beaufort, 5 Barn. & Adol. 442; the site of a manor; see Gittins v. Cow

post, p. 701. per, 2 Brownl. 217.

(2) See Mr. Serjeant Merewether's pre(u) 10 Ed. 3, 5; 18 Hen. 6, 11; Fitz. face to the West Looe case already reLeet, 8; Br. Incidents, 29; Tyrring- ferred to. ham's case, 4 Co. 37 a; 2 Brownl. 200, (a) Ante, p. 675. in Rowles & Mason.

(6) And by 31 Ed. 3, c. 15, every (x) See post, p. 690, n. (k); p. 699. sheriff shall make his tourn yearly one

(y) As at Yarmouth and Bridgenorth. time within the month after Easter, and Vide also the case of the borough of Holt, another time within the month after Saint (Rex v. Rowland,) 3 Barn. & Ald. 130; Michael ; and if held in any other manner

pledge (c) shall be at the feast of Saint Michael, “ so that every man may have his liberties which he had or used to have in the time of King Henry our grandfather, or which he hath purchased since;" but this clause of the above statute is to be understood of the leet of the tourn, and not of other leets (d); at least not to such as were granted to private persons previously to that statute ; but some think that Magna Charta, so far as regards the time for holding tourns and leets, was introductive of a new law (e).

A leet held by charter must be kept on the day or days mentioned in the charter; and when held by prescription, it is to be kept on such certain day or days as may have been the immemorial usage (f); and a court leet may be held even oftener than twice in the year by prescription (g); and when the established period is a month after some certain feast, it is to be accounted a lunar month, twenty-eight days (h). But the court cannot be held on a Sunday (i).

A court leet, it should seem, may be adjourned, if the business of the particular court require it, and this should be done by three proclamations (k).

P. 669,

it is void ; Fitz. Tourn, pl. 2, cites 38 Hen. as to the reason given in Hawk. see ante, 6, 7. Vide Gryffith v. Biddle, Cro. Car. 275.

Whether there is any distinction in this (c) Meaning that part of the business respect between leets claimed by grant of the tourn which related to the taking and those claimed by prescription, see of sureties; ante, p. 673 ; Co. Lit. 115 a, Porter v. Gray, Cro. Eliz. 245. And note n. 10.

that “the king hath power to make and (d) 6 Hen. 7, 2; 8 Hen.7, 1; 24 Hen. create a leet anew where none was be8; 2 Inst. 72, N. 11; Co. Lit. 115 a. fore;" 1 Browol. 36. And see Br. Leet, 21, 23; 1 Roll. Rep. () 2 Inst. 72; Kitch. 88; Br. Leet, 201; 2 Leo. 74, per Rhodes, in Lawson 32; Rex v. The Lord of the Hundred of & Hares; Fitz. Tourne, pl. 2. But there Milverton, ubi sup. And once or twice a are authorities to the contrary; Kitch. 88. year on reasonable warning, if a court have Per Periam, 2 Leo. 75; 2 Hal. Hist. P. been kept at uncertain times; 2 Inst. 72. C. 71; W. Jones, 290; Dakin's (or Da- But it would be better to follow the excon's) case, 2 Saund. 290 ; S. C. 1 Vent. ample of the leet of the tourn, and to hold 107. This was a case in the manor of it after Michaelmas, and within a month; the mayor, &c. of the city of London, vide called the King's Manor, in the Borough (g) Edwards v. Hughs, Gilb. Eq. Rep. of Southwark. And see Rex v. The Lord 209; 8 Mod. 297 ; Morgan's case, 1 Roll. of the Hundred of Milverton, 3 Adol. & Rep. 201; Partridge's case, 2 Leo. 28, Ell. 285.

75; W. Jones, 290; The Queen v. Jen(e) See 2 Hawk. P. C. 56, where it is nings, 11 Mod. 228; Keilw. 148 ; Gilb. said, “it seems that no court leet granted Ex. Rep. 209; Co. Lit. 115 a. But see 4 since the statute can be holden at any Bl. Com. 273, citing Mirror, c. 1, s. 10. other time than what is limited by it, be- (h) Cro. Jac. 167. cause every such court is derived out of (i) 2 Saund. 291 ; 1 Vent. 107. the tourn;" Co. Lit. 115 a, n. 12. But (k) Scroggs, 26. And see Kitch. 11.


« AnteriorContinuar »