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802 THE JURISDICTION OF COURTS BARON. [PART 111.
When a river, not navigable, runs between two manors, and is the meer and boundary of the manors, each lord has a moiety of the river and fishery (a).
And when no manorial franchise is claimed in an inland river, not navigable, the right of fishery is in the proprietors of the land on either side, as owners of the soil or bed of the river, and generally extends ad filum medium aquæ (b).
The franchises of free chase, free warren, and free fishery may, I apprehend, like other franchises, be lost by non-user or abuser, as well as by surrender to the crown (c); but we have seen that minor prescriptive rights exercisable by the lord of a manor, will continue, notwithstanding the court baron should be lost (d).
(a) Davis's Rep. 155. 1 Mau. & franchises, not dependent on each Selw. 661, in The King v.Ellis. other, is not a forfeiture of the whole,
(6) Carler v. Murcol, ubi sup. but of the one only which has been And see Davis's Rep. 155.
mis-used; contrà, if the one is wholly (c) Cro. Jac. 155. 12 Mod. 271. dependent on the others. Br. FranAnd see as to misuser, ante, p. 792. chies, pl. 14. But the misuser of one of several (d) Ante, pt. 1. p. 7.
OF THE JURISDICTION OF COURTS LEET.
Origin and Nature of the Court Leet.
The leet, which is a court of record (a), is described as one of the most ancient tribunals noticed by our common law (6), and is accounted the King's Court, for although this franchise is frequently held by the lord of a hundred or manor, under a grant from the crown, or by prescription, which presupposes such grant (c), yet the lord is intitled only to the profits of the court (d), and (in legal phraseology) the day is to the king (e).
The court leet is by some writers said to be derived out of the sheriff's tourn (f); but the observation may, I think, be considered as a mere obiter dictum, as far, at least, as it may tend to impugn the opinion of many of our ancient law authorities, that the jurisdiction and privileges of the leet were purchased of the crown by thanes or barons, and others of large territorial possessions, in order that the people might have justice rendered to them nearer to their own homes; and
(a) Br. tit. Leet & Tourn, pl. 39. F. N. B. 160-1, and the notes. Co. F. N. B. 82. 2 Inst. 143. 4 Inst. Cop, s. 31. Tr. 51. 263. Kitch. 82. Hetl. 62.
(d) 41 E. 3. 26. Br. Leet 4. Kitch. (6) 7 H. 6. 12. 2 Inst. 70.3 82. The lord of a leet cannot claim Burr. 1860. And it is said to have the wastes by prescription, which been ordained by king Alfred. Mirr. may belong to one who has a manor c. 1. § 3. Bullen v. Godfrey, 1 Roll. without a leet. See 9 H. 6. 44. Rep. 73. Judge Jenkins in his pacis cited, Br. Leet, 2. consultum, written during the Com- (e) 41 E. 3. 26. 44 E. 3. 19. Br. monwealth, states (p. 1.) that the Leete, pl. 4. 5. Kitch. 82. 2 Inst. court leet was established long be- 140. Co. Lit. 117 b. fore the Conquest. And see Rits. (f) 4 Inst. 261. Cromp. 230 b. on Courts Leet 34.
Shepp. Court Keeper's Guide, 4. (c) 2 Inst. 72. Finch's Law, 246.
whereby I conceive the power of the sheriff, in his tourn, was superseded, or at least suspended, to the extent of the local confines of each particular grant.
The close resemblance which the leet jurisdiction bears to the Anglo-Saxon institutions, beginning with 'Ethelbert in 561 (a), would seem fully to justify the opinion formed of its great antiquity, but I do not find that the term leet is mentioned in any historical work illustrative of the Anglo-Saxon jurisprudence.
The generic character of the leet jurisdiction may, perhaps, be best illustrated by a reference to the territorial divisions, and to the several independent communities established by the Anglo-Saxon kings, and by a brief sketch of the different ranks of people, and the mode of administering justice at that period of our history.
It is supposed that the Anglo-Saxon monarchs divided their territories into shires or counties, and townships, in imitation of their continental sub-divisions, called by the Romans pagi et vici, as such divisions are frequently mentioned by historians before the end of the heptarchy (6); and it seems equally probable, that King Alfred, who has the credit of that great and judicial polity, was not in fact the first to introduce the division of the kingdom into counties; but our historians certainly appear to be agreed, that he made a new and more regular division of it, differing from that which subsisted under the heptarchy, and probably introduced the sub-divisions of
(a) I submit that the remedial, if Leet, of all who neglected to appear not the alleged legislative character at the court, and of bloodshed, asof the ancient court leet, may be saults, and all other crimes punishtraced even to the continental Saxon able by loss of life or limb. Vide institutions. The Gaugrave held Speculum Saxonicum ; and also an inhis Gauding, or Moot, every six teresting and erudite article in the weeks, and all the tenants within Edinburgh Review of February, the Gau owed suit and service to 1822, No. 72. p. 287 et seq. this court; and presentments were (6) See 3rd vol. of Henry's Hist. there made by the Burmeysters or of Great Britain, p. 311. Bailiffs, similar to those of the Court
shires or counties into trithings, or laths, or rapes (a); and without doubt he has the merit of the still further subdivision of trithings into hundreds, and of each hundred into decennaries, tithings, or districts, consisting of about ten families(6).
The lowest orders of the people among the Anglo-Saxons were complete slaves, either by birth or by forfeiture of their freedom by crimes or breach of faith, and were incapable of any office of trust or honour; but the introduction of Christianity led to frequent manumissions, and established another class of people called frilazin, and persons so made free were considered to be in a middle state only, between slaves and freemen.
Those who were freemen from their birth were called ceorls, and constituted a middle class between the nobility and such labourers and mechanics as were slaves, or descended from slaves; and being generally devoted to agriculture, a ceorl was the usual name for a husbandman or farmer; but the acquisition of five or more hydes of land, the attainment of priest's orders, or making three voyages beyond sea in his own ship and with his own cargo (c), advanced a ceorl to the dignity of a thane; and his degree of nobility was considered to be higher than the next description of thane I shall notice.
(a) Ib. 317. Spelm. Vita Ælfrida, and the general character of English p. 74. St. Amand, Hist. Essay, p. jurisprudence at that period, bear a 68. These intermediate divisions strong affinity to the polity and intebetween Shires and Hundreds still gral communities of the Scandinavian subsist in England, the first (i. e. nations. The Hærad
appears to Trithings,) in the county of York, have been the primary division of where, (as is observed by Mr. Just. their land, analogous to the AngloBlackstone in his commentaries,) by Saxon Hundred ; and this district an easy corruption, they are denomi- was usually subdivided into quarters, nated Ridings; the second (i. e. and occasionally into tithings. See Lathes,) in the county of Kent; and Edinburgh Review of February, the latter (i. e. Rapes,) in the county 1822,
1822, p. 293. of Sussex.
(c) 3rd vol. Henry's Hist. of G, (6) The subdivision of the king- B. p. 325. St. Amand, p. 73. dom by our Anglo-Saxon ancestors,
A ceorl who had a propensity to arms, often became the attendant of some warlike earl, and was called his huscarle ; and by obtaining a reward from his patron, in land or warlike habiliments, was likewise considered as a thane, and this was the lowest degree of nobility. The higher class of thanes were denominated kings' thanes, and appear to have been of three different degrees.
The thanes were the only nobility among the Anglo-Saxons, but the princes or members of the royal families were of a still superior rank.
With respect to the Anglo-Saxon jurisprudence, it should be premised that the kings were considered as the chief judges in their respective territories, and frequently administered justice in person. Alfred the Great, we are told, sometimes employed both day and night in hearing causes on appeal, with the aid of learned men, acting as assessors, and forming a supreme court of justice. But after the establishment of monarchy, it was found to be necessary to appoint a Chief Justiciary, to preside in the King's Court in his absence; and the first institution of that office is supposed to have been at the time of the incursion of the Danes.
The supreme tribunal of our Anglo-Saxon ancestors was the WITTENA-GEMOT (a); which was not only a court of civil and criminal jurisdiction, but all the affairs of state, political and ecclesiastical, were there debated and regulated (b).
The ordinary assembly of the members of this court appears to have been at the festivals of Easter, Whitsuntide, and Christmas, it being the prerogative of the king to appoint the time and place of their meetings; but on very solemn and important occasions, all the constituent members were summoned, who being numerous, and the persons interested
(a) Wittena-gemot or assembly of ry's Hist. of G. B. 372. Turn. Hist. wise men. Wilk. L. Sax. p. 14, 72, of the Angl.-Sax. 220, 261, 76-9, 102, &c. Spelm. Gloss. in (6) 3 vol. Henry's Hist, of G. B. voc. Hist. Eliens. c. 10. 3 vol. Hen