In taking leave of the judicial polity of our Anglo-Saxon ancestors, and previously to entering on an inquiry into the constitution and authority of the court leet, as it appears to have existed from the period of the Norman conquest, it should be mentioned that the Wittena-gemot court, and those I have noticed of a subordinate jurisdiction, would seem to have been continued for a considerable time after the conquest; but William the Conqueror becoming jealous of the legislative functions of this assembly, established a constant court in his own hall (a), thence called aula regia, or aula regis (b). This court was composed of the officers of the King's palace, of which the justiciar [capitalis justiciarius totius Anglia] was the president; and who was also the principal minister of state.

The aula regis removed with the King from one part of the kingdom to another; and all matters both civil and criminal,. and regarding the revenue, were transacted there (c).

and, like gavelkind lands, they were not forfeitable for felony. Sulliv. 278.

(a) Aula, halla, or haula, a hall or chief mansion house, was the usual appendage of a manor. Domesd. tom. i. 21 b. Ib. 285 b. Ib. 286 b. Ib. 12, 293, 307 b. 308. Ib. 368 b. Ib. 63. Ib. 309. Ib. 29 b. Ib. 32 b. So caput manerii, 1 vol. 11, 26, 166. 2 vol. 227, 293 b. See App. to 2nd Gen. Rep. of the Comm. of Pub. Rec. p. 441. So the term hall is sometimes applied to a court baron; and hence also the town-hall, shire-hall, &c. 2 Watk. on Cop. 18. Hence too the Hallmote courts in the city of London. 4 Inst. 249.

In Yardley Hastings in Northamptonshire, and many other places, the manor court is opened in an ancient hall, and then, from its dilapidated state, adjourned to some inn, or other convenient place within the

manor.

(b) According to Sullivan, this court existed even in the Saxon times, under the term curia regis. See his Lect. on the Laws of England, p. 271; and I apprehend that the Wittena-gemot was a branch of this court.

(c) The latter were heard in the Treasury, called the Exchequer from the chequered cloth wherewith that table was covered; but all criminal matters were heard only in the hall; the civil pleas were heard in either court. This was the sovereign court of the kingdom, [Mad. c. 8.,] where justice was administered by the King himself and his officers; consisting of the justiciar, the chancellor, [who formed all patents, and had the custody of the seal both for writs and patents,] the treasurer or auditor, [who presided in matters relating to the revenue,] the constable and mar

In some cases of very great importance, as upon the levying of war, or raising an escuage, it was customary to summon to the aula 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 clearly appear (a); the more general opinion, however, is that barones majores (b), were alone summoned to the curia regis, and that the barones minores first sat by representation, in the reign of Henry the Third (c), the overwhelming influence of the greater barons inducing the institution of this popular assembly (d).

And it is generally supposed that about this period, or as some say about the twenty-third Ed. 1., the crown was induced, as a further check to the power of the barons, to create a cer

shall, [who determined all matters of war and peace, according to the law of nations and of arms,] the seneschal or steward & marshall, [who determined all quarrels between the King's menial servants, and had the charge of the prisoners, and the control of the King's household,] and the chamberlain, [who had the charge of the King's money issued out of the treasury.]

(a) The Commons of England certainly appear to have formed part of the Wittena-gemot courts, or parliamentary assemblies, in the Saxon æra. And it is a natural conclusion that the parliament is not a feudal institution, but has resulted from the concentration of the remedial and judicial authorities of the kingdom. Ante, p. 814. n. (c).

(b) Ante, p. 715. n. (a).

(c) Brady's answer to Petit, 133.

Camd. Britt. 13. Dugd. Orig. Jur. 18. But see 4 Inst. 2, where Lord Coke says that lords and commons of ancient times sat together, and refers to Rot. Parl. 5 E. 3 nu. 3.

And it is by no means improbable that after the greater barons were allowed to alienate their lands in fee, those holding of them by subinfeudation, and termed the barones minores, were summoned to convocation for a time, and that these afterwards constituted the knights of the shire, or representatives of counties, in the lower house.

(d) Spelm. Gloss. 69. Seld. tit. Hon. 692. Selden does not determine the point, but [p. 704. ib.] says that it was attempted, 17 John, to bring in the barones minores, as appears by the great charter granted by him at Runnymede.

tain number of free boroughs (a), 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 appear to have been created in and subsequently to the reign of Queen Elizabeth.

The power of the justiciar (b), 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 (c).

(a) Vide Mr. Serj. Merewether's observation in his preface to the Report of the West Looe Case, that it was not in consequence of their being trading towns that the boroughs were summoned to send representatives to parliament, as advocated by Dr. Brady and others, though at an early period of our history burgesses were summoned by special writs for special purposes, as to settle the staple, &c. And see 2 Pryn. B. P. R. 95.

et seq.
4 Pryn. P. W. 186. et seq.
So also port towns, some not being
boroughs, and others which were then
representative boroughs, were sum-
moned by a writ to send three or four
masters of vessels, or others of the

town if there were not sufficient masters of vessels, to a council at Westminster, to treat with the King, or with others of his council, upon certain matters relating to the King and his honour, and the defence and preservation of the realm, and the shipping thereof. See the above preface of Mr. Serj. Merewether, p. 5.

(b) This power is represented by Sir William Blackstone to have induced King John to consent to that article which forms the 11th chapter of Magna Charta, and enacts that "communia placita non sequantur "curiam regis, sed teneantur in ali

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 (a), justices of assize and of gaol delivery, and of the peace, with the courts of quarter sessions, &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 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: I shall now therefore the more un

66

bishop's house; as the steward or "bailiff of a leet would, for the same

(a) The proceedings of the court was even then ancient, (Pat. 4. of the justices in Eyre [in itinere]" E. 2. pl. 2 m. 15 d,) is mentioned show that it was in effect nearly the "by Stow as standing headless in same as the Saxon Shire-gemot. See "1598. The justices probably in the MS. formerly belonging to Sir "bad weather sometimes sat in the M. Hale in Lincoln's Inn Library. Mr. Ritson in his treatise on courts leet, [p. 7. n. u,] in adverting to the practice among our ancestors of administering justice in the most public manner, and generally, for the convenience of the suitors, in the open air, (see ante, p. 807,) and as curious illustration of that principle, observes" that the justices itinerant " in the time of Edward the First, "sat at the Stone-cross, (opposite the Bishop of Worcester's house, now Somerset-place,) in the Strand. "This venerable monument, which

a

reason, occasionally do in the "church, where, notwithstanding a "canon, (1 Burn. E. L. 361,) it is in "many places still held." And in another part (p. 15.) the same author observes, "Dr. Hickes thought that "justices itinerant were originally "instituted by Henry II. Dis. Epis. 8. 48; but Mr. Madox has pro"duced evidence of their existence "in the reign of King Stephen. "(Hist. Ex. p. 100)."

hesitatingly 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 (a).

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 (b), or to a manor (c). And although there possibly may be instances of leet jurisdictions existing by prescription (d), 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 (e),) 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

(a) 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 66 manor of S. &c."

(b) And see 8 H. 7. 1. Mar. 75. Lord Norris v. 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 H. 7.1); and see Br. Leet. 23, citing 13 H. 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 H. 7. 16. Br. Leet. pl. 24. Ib. Incidents, pl. 18.

(c) 33 H. 6. 4. 18 H. 6. 11. Br. Incidents, pl. 2, 29. 1 Leo. 218. Where three coparceners were seised 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.

(d) A title to a leet may clearly be made by prescription only. Co. Lit. 114 b. 2 Inst. 72. Ante, p. 803. But it gives no title to the wastes. Br. Leet, 2. Ante, p. 803, n. (d).

(e) Ante, p. 803-4.