IV.—THE COUNTY COURTS.

THE origin of the schyremotes, or county courts, is lost in remote antiquity, and black-letter lawyers have differed alike as to their constitution and their jurisdiction; but there is one point on which all agree, that in the time of the Saxons these courts were the most important tribunals of the country. Alfred is said to have first divided England into counties and the counties into hundreds, with the view of obtaining a better administration of justice, and it is not to be doubted that he improved many of the then existing legal institutions. But the county courts, the creation of which is generally attributed to him, would seem to have existed at a period long anterior to his reign, and to have been an essential part of the Saxon judicial system.

Learned men also differ as to whether the schyremotes possessed a criminal as well as a civil jurisdiction. The presence of the king's gerefa, the language of several edicts of our early kings, and the opinions of many writers of great research, (to say nothing of the fact, that the inferior manorial and hundred courts indubitably possessed extensive powers for the punishment of offences,) would seem to justify the opinion that these courts administered criminal as well as civil justice. Be this as it may, in Saxon times they exercised at once a civil and an ecclesiastical jurisdiction : "Let the bishop and the earl meet the country, the one to state the law of God, and the other the law of the land.".

This county court was held twice, or oftener if necessary, in the course of the year. It was presided over by the earl or count (or, as he was called in more early times, the Ealdorman), who was the king's lieutenant in the county, and possessed supreme military and civil authority therein. In court he was assisted by the bishop, and attended by the king's gerefa or reve, whose duties were to carry into execution the judgments awarded and to levy the fines due to the king. This shire reve seems occasionally to have acted as deputy for the earl; when the bishop retired soon after the Conquest, the earl no longer condescended to preside, and the administration of civil justice may thus be considered, from the time of William the Norman, to have been left in this ancient tribunal to the king's reve, or sheriff, in the court of his county.

But the sheriff never became the judge. His duties in the schyremote, till some of its powers were lately transferred to the new county courts, were exclusively ministerial. In the Saxon courts, all the thanes or free owners of land in the county above the rank of ceorls or churls were bound to attend. They acted as judges in each case; both the law and the facts were determined by them. The earl, bishop, or sheriff, when presiding, was required to have with him the dom boc, or code of laws; the facts of the case were generally known to the assembled freeholders; when unknown, they were proved as directed by the laws: when incapable of such proof, the parties were examined on oath. The judgment was pronounced by the majority of the assembled "sectatores," lat

terly called suitors, and the sheriff was charged with its execution.

Nor was there any formal mode of procedure. The plaintiff commenced his suit when and how he pleased. He himself summoned the defendant to appear before the court to answer his demand. He stated his grounds of action in his own language; he was tied to no form,-exposed to none of the numerous difficulties and delays which we owe to the special pleaders of modern times;—he was restricted to nothing but satisfying the judges of his right to redress of some kind. The witnesses were examined publicly; they were known to the judges; the degree of credibility to be attached to their evidence was apparent to all. The distinction between law and equity was unknown; justice was what was asked and given.

The burg-motes, manorial courts, and wapentakes or hundred courts, had a similar mode of procedure within their respective jurisdictions.

Till the Conquest, then, such was the administration of civil justice in the county courts. It was administered at every man's door; the "law's delay," attorneys, and bills of costs, had not yet sprung into existence-justice, good or bad, was at all events local, it was cheap, and it was generally expeditious. "Let no man (says a law of Edgar) seek to the king for matters of variance, unless he cannot find right at home; but if that right be too heavy for him to bear, let him seek to the king to have it lightened." By the Saxon constitution, there was but one superior court of justice, the " Wittenagemote,' " which combined a jurisdiction in matters civil, ecclesiastical, and criminal, with the legislative position of the general council of the sovereign. Soon after the Conquest the ecclesiastical jurisdiction was diverted into another channel; the supreme civil and criminal jurisdiction, by the introduction of the feudal law, became vested in the sovereign and his great council, the "aulâ regis." That court comprised all the great officers of state, and at first attended, like the Wittenagemote, on the person of the sovereign. With the subdivision which afterwards took place of the aulâ regis, the appointment of a chief justiciary, the creation of a Revenue court (the origin of our Exchequer), and the permanent establishment of the Court of Common Pleas at Westminster, all students of English history are familiar.

Until the end of the reign of the Conqueror, justice was administered in the county and hundred courts very much as it had been under the Saxons. But the Norman policy was that of every feudal chief, to make the administration of the law flow directly from, and be dependent on, the sovereign, and from him through the inferior jurisdictions-a policy the more necessary to be pursued in England, from the peculiar position of the Crown having been seized by a new dynasty, introducing a new judicial system.

In the manors of the king, courts were held by his bailiffs-in those of the Norman lords, by them and their officers. In the county courts, which had ceased to determine matters of ecclesias

tical cognizance, the bishop no longer assisted, the sheriff held the place of the Saxon earl. In all, however, the procedure was still according to the ancient customs of the realm. In the county courts the freeholders, and in the manorial courts the free tenants of the manor, were the judges.

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But the Conqueror first acted systematically on the feudal maxim, that the king was the fountain of all judicial authority, though there can be no doubt that writs had been addressed by the Saxon sovereigns to the inferior courts, to hasten or further the ends of justice. The Conqueror appointed justices at his pleasure, or, when occasion required, to make circuits through the country. These judges, whose office was analogous to our subsequent justices in Eyre, travelled over England nominally to administer justice, but extortion and iniquity of every kind frequently attended their steps. Hence the clause in Magna Charta, Nulli vendemus, nulli negabimus, nulli differemus rectum vel justitiam." Since which well-known security against judicial corruption, justice has rarely indeed been sold; but a system of extortion in the shape of fees (principally to support patent offices and sinecures for the hangers-on of the Crown) has been established, in direct violation of the spirit of this enactment, and which has indirectly but immensely contributed to the outcry against the administration of the law in the superior tribunals. Sometimes the king by his writ interfered in the procedure of the county court, by ordering causes there to be tried before his justices. Judgments in causes heard before the itinerant judges, or heard in the inferior court by the king's writ, were certified to the king, and enforced by the authority of the Crown.

These proceedings were the origin of our present system at Westminster, and of the mode in which the jurisdiction of the county court may be increased by writ of justicies.

Within a short time after the Conquest, the local courts fell into comparative disuse. Various causes may have contributed to this result. An institution well adapted to the simple state of society of the Saxons was not calculated to answer the purposes of a more advanced civilization. The departure of the bishops from the county courts left the judges there in perfect judicial darkness; the light of the Roman law, with which the ecclesiastics of that time were familiar, was no longer brought in to assist the administration of justice in a court, which in its constitution was composed of ignorant and often prejudiced landowners, with no rules of right before them but the traditions or customs of a semi-barbarous age. After the departure of the earls and the bishops the great barons would no longer attend as suitors or judges. From this cause alone the courts would cease to inspire confidence; but what contributed most of all to the destruction of these tribunals was the persevering policy of the Crown in centralizing the administration of the law. Cognizance of causes in the superior courts was a matter of favour, not of right. The stern law and practice of the Normans once introduced was carried into full effect; and the suitor knew that if justice was to be procured, only with greater

trouble and at greater cost, at all events he was not exposed to the effect of local prejudices, and the judgment awarded him was not without immediate results.

So much mischief resulted, however, from the destruction of the inferior tribunals, that in the reign of Henry I. it was found necessary to legislate for their partial restoration. But the command of the king that the county and hundred courts should be held as they had been in the reign of Edward I. was attended with no good effect; and in the reign of Henry II. eighteen justices in Eyre were appointed to visit each of the three circuits into which England was then divided, and a system was thus established, which, with some alterations, continues to the present day. It is clear that the presence in the counties at stated intervals of the judges of the superior courts, would give a finishing stroke to the local tribunals. The administration of justice by the king's justiciaries on circuit had been well established in the reign of Edward I., and the statute of Gloucester, passed in the sixth year of that king's reign, had enacted, that none shall have writs of trespass before justices unless he swear that the goods taken were worth 40s. at the least." This attempt to create a limit between the superior and inferior jurisdictions was disregarded by the former, which have continued ever since to exercise a concurrent jurisdiction with the inferior courts. When the cause of action does not amount to 40s. (modern money) the supreme courts will stay proceedings, but the 40s. of the days of Edward I. would amount to at least 251. of our money. The county courts, five years ago, had no cognizance of suits above 40s.; in effect, therefore, their jurisdiction had been diminished from a cognizance of suits for 251. to actions for 40s.; that of the superior courts had been extended downwards to include suits for pittances which the law required should exceed 40s.

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Sir Matthew Hale was so convinced of the inconveniences resulting from the want of lccal tribunals, that he recommended that the jurisdiction of the inferior courts should be extended to include demands for 107., a sum which, in the altered value of money, would now represent a much larger amount. Before his time, however, the increasing evils of the centralization system (evils which were developed daily and in exact proportion to the increase of commerce, wealth, and population) had become so apparent, that a remedy had been attempted by the establishment of courts of conscience. The first of these courts was created in the reign of Henry VIII. in the City of London, and afterwards regulated by statute in the reign of James I. Long before this period the expense and delay attending suits in the courts at Westminster, had been found to be crying grievances.

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Sir William Blackstone, in his lectures in 1773, expressed a wish that the proceedings in the county and hundred courts could be again revived. He characterised his proposal as a plan tirely agreeable to the constitution and genius of the nation ;" and the view which the well-known commentator held eighty years ago, would seem to be amply justified by the public favour which the lately established courts have obtained. Nothing, how

ever, was done to reorganise the simple and efficacious procedure of the old Saxon schyremotes. The county courts had, it is true, and still have, it would appear, unlimited jurisdiction for the recovery of debts and demands, and in many actions for trying rights of property, in virtue of what is called a writ of justicies. This writ itself confers these extensive powers; but the procedure under it was, and still is, attended with all the evils of special pleading, all the cost, delay, and difficulty, attendant upon actions in the superior

courts.

The courts of conscience then naturally multiplied exceedingly. In 1833 there were no less than sixty established throughout England; but they too failed completely, from a variety of reasons, to serve the purposes for which they had been established. In the mean time, the small but gradually increasing sect of law reformers had sprung up; and it is to the exposure of the numerous defects of our judicial system by Jeremy Bentham, to the subsequent labours of Mr. Brougham in parliament, and to the steady and persevering assistance of the few members of the profession who have taken in hand the improvement of our legal institutions, that we owe the county courts now established throughout the kingdom. With the labours of Bentham, of Sir Samuel Romilly, and of Sir James Mackintosh, and their results, all those interested in the progress of our jurisprudence are familiar. To Lord Brougham we are more immediately indebted for the county courts. In 1828 he obtained the appointment of commissioners to examine into and report upon the administration of the law in its different - branches; and his speech delivered on the occasion of moving for this commission contains a most masterly resumé of the working of our judicial system as it then was, and a most thorough exposure of the evils and injustice attendant upon its mode of procedure. The inquiries of the commissioners were not directed to the local tribunals, nor were their reports attended with any good result. Mr. Brougham, finding it so, in 1830 brought in a bill for the establishment of local judicatures. In doing so he called the attention of the House of Commons, and it may be said of the public, to the expense and delay attending the recovery of small sums in the superior courts-the disproportion between the sum sued for and the costs being illustrated by the fact, that to recover 61. or 71. it was often necessary to spend 601. or 70l. He contrasted this procedure with that which had long prevailed in Scotland, where 81. may easily be recovered for 5s., and 1007. in an undefended suit for 20s., while the cost of recovering 1007. in a defended suit would amount to 127, or 131. The data on which Mr. Brougham founded his statements were derived from the proceedings of the Sheriffs' Court in Glasgow, in which property to the value of 500,000l. was then (in 1830) annually adjudicated upon. Mr. Brougham also drew an outline of his measure and of the powers he proposed to give to the judge, the mode of trial he should suggest, and the procedure to be adopted by the courts. In many respects his views have been carried into effect in the new county courts.

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