Imatges de pÓgina

only state which extends its jurisdiction ment of the property of the debtor, in to every country; and permits its citizens France, is never granted. (Sirey's Journal to bring foreigners before a French tribu- de la Cour de Cassation, viii, 453, and nal, although they have neither residence xvii, 58.) Similar laws were established nor property in the realm; and no delay of in the kingdom of Westphalia and some trial takes place in favor of a foreigner, re- of the German states; for example, Bavasiding in his own country, if accused before ria began to refuse all authority to the a French tribunal by a citizen of France. decisions of foreign courts; but it soon (Code civil, art. 14.) This course is the more became evident that such a system would dangerous for foreigners, as it is possible introduce great confusion, as there was so for them to be summoned before the court, lively an intercourse between the different and condemned, without the slightest German states, and the old rules were in knowledge of what is going on.

The sum

a great measure restored. (A decree of mons is delivered to the state attorney, to be the Bavarian government, dated June 2, sent to the minister of foreign affairs, who 1811, gives authority to the decisions of transmits it through the diplomatic author- foreign courts, in civil causes, only when ities to the accused. If the summons is no property can be found on which to delayed or miscarried (examples of which levy execution in the state where the suit are known to have taken place) the trial has been carried on, and where no equal still goes on; and the proceedings of the or superior claims exist to the property of court, and the sentence it passes, lose the debtor in Bavaria. This system, hownothing of their validity. If the stranger ever, is by no means free from objection.) comes to France, or has property there, As the relations of the German states, as he may be immediately arrested and members of the empire, have ceased, and imprisoned, though a Frenchman could the unconditional admission of the validity not be. (Law of Sept. 10, 1807.) The of the decisions of foreign courts would double injustice of this system appears be attended with many disadvantages, it is from the fact, that the French do not highly desirable that a uniform rule on acknowledge the jurisdiction of foreign this subject should be introduced throughtribunals in the case of their own coun- out the German confederacy.—The autrymen, even though this be based on the thority to be given to sentences of foruniversal principles of right. It is, there- eign courts, in criminal cases, is a subject fore, very desirable that all governments of great delicacy, and involves the difficult should protect their subjects by strictly question, how far states are required to maintaining the law, that no one shall be deliver up accused persons

who have fled accused except before his proper judges. to them for protection. The law of naThis universal rule has been acknowledg- tions, on this point, is nearly uniform. ed by France only in relation to Switzer- The substance of it is, that, in criminal land, by various treaties, old and

new, and, cases, one country has nothing to do with finally, by, that of Sept. 27, 1803.— With the sentences of another, either for or this subject is connected the authority al- against the accused. The confiscation of lowed to the decisions of the courts of property, in particular, which is decreed foreign countries. The imperial constitu- in one state, is absolutely disregarded in tion in Germany, under which all the every other.—The punishment of crimes states considered themselves as members committed in foreign lands is a matter of one whole, accustomed them to regard still more disputed. The various theories foreign judicial decisions, in private causes, on penal law present each a different view as binding; and the tribunals were held of the subject. It should always be rebound to carry into effect such decisions membered, in discussing this question, that whenever required to do so. The same the administration of the penal law has a custom prevails in England as to chattels, higher object than the acquiring or securbut in regard to real estate, no foreign ju- ing an advantage to the state, and a better risdiction is acknowledged. In France, foundation than the caprice which threatsince 1629, the decisions of foreign courts ens this or that action with punishment, have had no force. If a judicial process and which would suffer the most infais carried on against a French citizen, it is mous crimes to pass unpunished if they required to be reviewed before a French are inadvertently omitted in the penal court, at least as to its most essential fea- code. The penal laws, more than any tures, unless the French party chooses to other branch of legislation, should have go over the whole again from the begin- regard to those eternal principles, which ning (comme entier); and, if both parties are older than any laws. They intimately are foreigners, a petition for the attach- concern all mankind; they are the great





support of moral order: every state, there- severer than that provided by the laws of fore, should lend to others all the assistance, the country where the offence took place; in executing these laws, which accords with and, as the punishment cannot be more its convictions of right. A state which tol- severe than that imposed by the laws of erates a criminal in its bosom unpunished, the country where it is inflicted, the mildwherever his crime has been committed, er rule should be followed. This is in partakes of his guilt. He should be accordance with the statutes of Prussia punished according to the laws of the (Allg. Landr. ii

, 20, sect. 15). To adopt land (for each state must regard its own the punishment imposed by the laws of the penal laws as the most just); but only for country where the act took place, withacts which are criminal in themselves out regard to circumstances, is contrary and universally; such as murder, robbery, to all correct theory, and would lead to fraud, violence, which may be styled crimes the greatest inconsistencies. This would against the law of nature (delicta juris gen- require the application of the most absurd tium).

Acts which are prohibited by par- laws that were ever framed—the penal ticular states for particular reasons, and laws of England, for instance, where violate no universal laws of morality and death is the punishment for cutting down justice, are to be viewed simply as viola- a tree, or wearing a mask in a wood; and tions of the peculiar organization of cer- the religious laws of Spain are equally tain states; and no other state has good severe. If the liberty of selection, among reason to punish them; for, before this the punishments imposed by foreign laws, can properly be done, it must first be de- be allowed, this would lead to the most cided, that the prohibitory laws of the pernicious uncertainty and caprice. states supposed accord with the higher de- Courts. [In the following article, we mands of justice, and a different state has shall give, at some length, a view of the neither the means nor the right to make courts of England, followed by an account this decision. For this reason, it is the of the courts of the U. States.] COURTS OF universal practice of nations to pass over ENGLAND. Inferior Courts. In describing crimes which merely infringe the positive the courts of England, it will be sufficient regulations of other states (delicta juris to take a cursory view of those of inferior positivi); such as violations of financial and limited jurisdiction; among the most Laws, laws against contraband trade, po- inconsiderable of which is the pipowders lice regulations, ecclesiastical ordinances, court, which is commonly said to derive &c. In fact, one state could not, consist- its appellation from words signifying the ently, punish such offences against the dusty foot, either in allusion to the suitors laws of another; for foreign states often who frequented it, or, as some say, because encourage such transgressions of positive justice was as speedily done in this court law to advance their

own political views. as the dust could be shaken from the But if a subject of one country, while feet. Barrington, however, derives the abroad, commits an offence of this class name from the old French pied-pouldreaux, against the laws of his own country, he is a pedlar, because the chapmen frequentproperly liable to punishment on his re- ed these courts. The pipowders court is

The citizens of a country, while incident to fairs and markets, having two they are abroad, are subject to the laws branches, one held by the lord of the of their native land. This is the rule in franchise or his steward, the other by the England, France (Code d'Instruct. crim. art. clerk of the market. In this court are 5), Prussia (Allgemeine Landrecht, ii, 20, settled all disputes respecting contracts sect. 12-15), Austria (Strafgesetzbuch, s. ii, made, and all suits for injuries and ofsect. 30). In this case, as in those before fences committed during the fair. An mentioned, France extends its jurisdiction appeal lies from this court to those of beyond the proper bounds. It assumes Westminster hall. The pipowders court the right of punishing strangers who vio- has fallen very much into disuse.—Courts late the laws of the state abroad (Code of manors and hundreds. The lord of d'Instruct. crim. art. 6); and, on the other every manor is entitled to hold a court, hand, it refuses to punish crimes committed not of record, called a court baron, by by its own subjects in foreign lands against himself or his steward, having a civil jurisforeigners (Code d’Instruct. crim. art. 7, 24). diction. A hundred court is similar, only As offences committed abroad are not to embracing a wider district.— The coroner's be considered as an immediate violation court is held by a coroner, who assembles of the penal code of the country where a jury to inquire concerning the death of they are brought to justice, the punish- any person, wherever any violence is susment inflicted on a foreigner ought not to be pected. (Coroners hold similar courts in


the U. States).— The sheriff's court. The elections are held (among others, that of sheriff of each county formerly held a members of parliament from that city), and court, called the sheriff's tourn or torn, from which an appeal lies to certain justwice a year, in each hundred of his coun- tices of the city; 2. the sheriffs' courts ; ty, at which every person over 12 years 3. a court of conscience, of summary jurisof age, and not specially privileged, was diction in actions under 40 shillings, held obliged to attend, for the reformation of by the lord mayor :—the court of commiscommon grievances and nuisances, the sioners of sewers, to provide for the repair trial of offences, and the preservation of of sea-walls, ditches, sewers, &c. :—the peace and good government. It has also court of stannaries, for the tin mines in a considerable jurisdiction in civil suits. Cornwall and Devonshire, for the trial of Though the jurisdiction of this court re- suits in which the tinners are parties : mains, its business has, it seems, long since courts of the forest, having jurisdiction ceased, except in regard to actions of re- over the royal forests :—the court of the plevin, which, professor Wooddeson says, royal franchise of Ely, belonging to the are frequently commenced in the sheriff's bishopric of that name, but held by justorn, and almost as frequently removed into tices, not by the bishop himself

, and hava superior judicature. The court leet has ing jurisdiction of causes arising within the same jurisdiction, in particular districts, the bishopric :-courts palatinate, of the that the sheriff's court has in the county, counties palatine of Durham, Chester and and, like the sheriff's court, is now almost Lancaster, which are courts of record, of obsolete.—Justices' court. The jurisdic- superior jurisdiction, commensurate with tion of justices of the peace has superseded that of the courts of Westminster, from that of most of the small courts. These which writs do not run into these counofficers are now the conservators of the ties palatine :-the court of the Marshalpeace, scattered in every town and parish sea and of the palace, still held weekly at of the kingdom. We have a minute Southwark, whose jurisdiction embraces account of the qualifications and powers a circuit of 12 miles about the king's palof these officers in Burn's Justice. A ace, for the determination of causes arising justice of the peace is required to have a among the servants of the king's household; yearly income, clear of all encumbrances, and the court of the earl marshal, authorof £100, or property estimated to be equiv- ized by the statute of 13 Richard II, chap. alent. The justices are commissioned by 2, to take cognizance “of deeds of arms the king, their appointment being made and war out of the realm, which cannot through the lord chancellor. A justice is be discussed by the courts of the common a judge of record, and causes are removed law:"_besides the ecclesiastical courts and from his court to the superior courts by those of admiralty and chancery, of which certiorari. The justices of each county a more particular account will be given. hold quarterly sessions; but any justice is The Superior Courts of Westminster hall empowered to hold a court at any time for are the courts of exchequer, common pleas, and the examination and committing of of- king's bench. These three courts, and also fenders, and also for the trial of such ac- that of chancery and the house of lords, are tions as come within his commission.- the remains and successors of the great The quarter sessions, as well as the indi- court established in the Norman period, unvidual justices, are instituted for the sup- der the title of aula regis, which was dividpression and punishment of offences, and ed, very naturally, into several departments, their power extends to the committing to for the trial of different kinds of pleas; and, prison for trial for crimes, with but few at length, these several branches of one juexceptions. Two justices may determine risdiction became so many distinct courts. the settlement of a pauper, but an appeal lies The king's bench is considered as the from their decisions to the quarter sessions. most direct successor to the aula regis, in

Assizes. Courts of assize and nisi prius Westminster hall. In this court, the soveare treated at length under the article As- reign is, by a fiction, supposed to preside sizes. (q. v.) These courts are branches of in person, and the writs are, accordingly, those of Westminster hall, the great centre made returnable “before the king, wherevof the judicial administration in England, er he may be in England,” because the according to the forms of the common court formerly followed the king to differlaw.-Besides the above courts, there are ent parts of the kingdom, and was once others of a limited and special jurisdiction; held, in the 21st year of Edward I, at namely, three in London-1. the hustings Roxburgh, in Scotland ; but, for many court, which has a jurisdiction in civil centuries, its sittings have been held in actions, and at which some of the city Westminster hah, and the king never pre





sides at its sittings. Sir Edward Coke baptismal oil to the people of a certain says, if he were present, still justice could parish, to whom they had been denied by be administered only by the justices, in him. This power of supervision is frethe same manner as if he were absent; quently exercised by ordering officers and sir William Blackstone says, when of corporations to discharge the duties James II sat there, he was told by the incumbent upon them. This court does judges that he must not give his opinion. not take cognizance of any civil action in The three courts of Westminster hall, at which the amount in dispute is less than the time when they were constituted out 40 shillings. Actions are brought from of the aula regis, had jurisdiction of dis- the common pleas to this court, and are also tinct kinds of actions; the king's bench carried from the king's bench to the exhaving cognizance of criminal suits, the chequer chamber or the house of lords common pleas of suits between party and by writ of error. party respecting land titles and on con- The common pleas, originally having jutracts, and the exchequer in matters of

reve- risdiction of civil causes, between party These courts have also a jurisdic- and party, was, like the king's bench, amtion in respect to the person, and not rest- bulatory, moving with the king wherever ing wholly on the kind of action. Every he went in the kingdom. But, by the 11th one, for instance, has jurisdiction of suits chapter of Magna Charta, it vas ordained in which its own attorneys, or some other that it “should not follow the court, but of its officers, are parties; and through this be held in some certain place." This right of jurisdiction, in relation to the per- court is still distinguished by some of the son, the king's bench has drawn to itself characteristics of its original constitution, cognizance of actions of almost all descrip- for it has the jurisdiction of real actions, tions, in which the proceedings are at com- and has no jurisdiction in felony and mon law, except real actions ; nor does this treason. Like the king's bench, it may exception much abridge its jurisdiction, for issue writs of habeas corpus, which may title to lands, in England, as in the state of be issued by the whole court or any one N. York, is tried in personal suits, between of its judges, to bring up a person imthe parties to a real or supposed lease of prisoned, and inquire into the cause of his the lands in dispute. This general juris- imprisonment, and set him at liberty if he diction was acquired upon the principle is confined without lawful cause. A writ that no other court could bring before it a of error lies from it to the king's bench. It person imprisoned by the king's bench; consists of a chief-justice and three justices. and, in respect to every such person, The court of exchequer, having jurisdictherefore, suits must be brought against tion of that part of the general business him in that court, or there would be a fail- of the aula regis which relates to the reve, ure of justice, as long as he should thus nue, derives its name from a chequered continue to be imprisoned. A defendant cloth (exchequier, a chess-board, or chequerbeing, accordingly, once arrested and im- work) on the table. There are reckoned prisoned, in an action brought before this 7 courts in the exchequer ; viz., 1. of pleas ; court, might, while so in custody, be sued 2. of accounts ; 3. of receipts ; 4. of exchequer in any civil action, in the same irt. chamber (where all the 12 judges of EngBy taking one step farther, the jurisdic- land assemble to consult on difficult mattion was made general in such actions, ters of law); 5. of exchequer chamber for namely, by adopting the fiction that the errors in the exchequer; 6. for errors in defendant was imprisoned by the court. the king's bench ; 7. of equity. The The great mass of the present business of court of equity is held by the lord treasthis court, which fills the reports of its urer, the chancellor of the exchequer and proceedings, is brought under its cogni- four barons of the exchequer. The four zance by this fiction. It has also super- barons, in fact, are the regular and convision of all the inferior courts of common stant judges of this court, in which is law throughout the kingdom, from all transacted the business originally belongwhich a writ of error lies to this court. ing to the exchequer, namely, the calling It may also punish magistrates and officers the king's debtors to account, on bills of justice for wilful and corrupt abuses of being filed against them by the attorneytheir authority. This species of super- general, and the recovering lands, chattels vision has, in some cases, been extended or profits belonging to the king. to other than civil and judicial officers, as of common law is also held by these four in the case mentioned by Noy, where the barons. And, in both these courts

, civil court issued a mandamus to the bishop of actions, in general, may be brought

, under Exon to allow the sacred unction and pretence or on the fiction that ihe plain


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tiff is the king's debtor, and the less able chamber already mentioned, including all to discharge the dues to the king, because the judges of these courts. But the numhis own debtor, the defendant, neglects to ber of these judges has, as we learn from make the payment or do the act demand- Mr. Wooddeson, sometimes been five, and ed; the fact whether the plaintiff is, as again, at others, less than four, there he alleges in his writ, the king's debtor, having been but two in the beginning of being never inquired into. One of these Trinity term, 1655, in Cromwell's time, courts of exchequer chamber is merely an in the king's bench, then called the upper assembly of all the judges of the three bench. The judges anciently held their superior courts, for consultation in matters office during the pleasure of the king; but of law. The court of exchequer chamber, now, by the statutes of 12 and 13 of Wilfor the correction of errors in the common liam III, chap. 2, and 1 George III, chap. law courts of exchequer, constituted by the 23, during good behavior; and their comstatute of the 31 Edw. III, chap. 12, con- missions do not expire on the demise of sists of the lord chancellor, the lord treas- the crown. When the judges of either urer, and the judges of the king's bench of the courts are equally divided, a meetand common pleas. The other court of ing of the twelve judges is held in the exexchequer chamber, for the correction of chequer chamber, to consult on the matter. errors in the king's bench, in certain cases, The house of lords, in its character of a is constituted by the statute of 27 Eliza- judicial court, is the highest tribunal in beth, chap. 8, and consists of the judges the kingdom, to which civil actions are of the common pleas and the barons of the carried, by writ of error, from the two exchequer. We have seen that the three courts of error already mentioned, as courts of king's bench, common pleas and held in the exchequer chamber, and from exchequer have, all of them, by means of the court consisting of the twelve judges; the fictions above mentioned, concurrent also from the king's bench, from which jurisdiction of civil actions in general; and, latter court some actions may be carried, if there were no higher tribunal for the as we have already seen, to the court of exsupervision and correction of their de- chequer chamber; but the party aggrieved cisions, they might diverge into different by the judgment of the king's bench has principles of adjudication, so that what his election, in actions of that description, was law in one would not be so in another, to go immediately to the house of lords, if and thus uncertainty might be introduced he so chooses. So civil actions may be into rights and obligations of every kind. brought before this court by appeal from Accordingly, every community requires to the chancery and the equity side of the have one ultimate tribunal of appeal on exchequer, and by writ of error or by apall questions of the same description ; and peal from the highest courts of Scotland and the judicial system of Great Britain is Ireland. Actions were formerly brought, constituted upon this principle. The king's in the first instance, before the aula regis, bench may, on writ of error, revise the de- to which, of all its surviving successors, · cisions and correct the errors of the com- the house of lords bears the greatest remon pleas; the exchequer chamber, con- semblance; and petitions continued to be sisting of the judges of the common pleas presented to the house of lords, from the and court of exchequer, may revise those reign of Edward I to that of Henry VI, to of the king's bench; and the court of ex- take cognizance of suits in the first inchequer chamber, consisting of the lord stance; but the lords uniformly referred chancellor and lord treasurer, with the the petitioners to the other courts; and they judges of the king's bench and common entertain no civil action except on appeal pleas, may revise those of the common or writ of error. The practice of bringing law courts of exchequer; and from all cases, by writ of error, from the courts of these, as also from the court of chancery, common law, has prevailed ever since the equity side of the court of exchequer, the establishment of those courts; but and from the superior courts of Scotland appeals from the court of chancery are of and Ireland, actions may be carried, by later date, having commenced in the latter writ of error or appeal, to the house of part of the reign of Charles I, after the Jords, the highest judicial tribunal in the court of chancery had succeeded in estabkingdom.—The judges of each of the courts lishing its present extensive jurisdiction of king's bench, common pleas and ex- against the opposition of the common law chequer are usually four; and this number courts. The reason commonly given in is so well established by usage, that the favor of this right of appeal is, that it ought expression the “twelve judges of England” not to be left to the chancellor to bind the is used to signify the court of exchequer whole property of the kingdom, by his de

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