COURT OF RECORD. 



< 01 Evn, 



officer or private soldier, or other person subject to Uie laws of war, 

 who has been acquitted by the civil magistrate, or by the verdict 

 of a jury, U liable to be tried again by a court-martial on the same 

 charge ; the crown, however, ha* (till the power, notwithstanding mob 



acquittal, to dismiss the officer from the service, and thereby save the 

 profession from the society of a guilty man, who has escaped through 

 a failure of justice only ; but such prerogative of the crown U pro- 

 perly limited to the power of cashiering. 



had no legal existence Mora the year 1661, 



Sand 



and even custom till then had only auctioned a reference of cauae* of 

 pomplnhrt in the fleet to the deoiaion of two or three aenior officers in 

 accordance with " the uaagvs of war;" but by the 13 Car. II. c, 0, 

 tribunal* of thin nature were established, and their jurisdiction ascer- 

 tained, the crimes triable before them being determined, and the 

 punishments which they might inflict That statute was repealed by 

 the Si Gee. II. c. 33, and the law relating to them is now to be found 

 in thin Act, and in the 19 Oeo. III. c. 17; the 10 & 11 Viet. c. 69 ; and 

 the 10 ft 11 Viet c, 62 ; the Article* of War; and the queen's regula- 

 tions together with the instructions issued to the fleet by the Board of 

 Admiralty in 1844. The person empowered to assemble a court- 

 martial in the navy is the officer in chief command of the fleet 

 or squadron, who has received authority for that purpoee by warrant 

 from the Board of Admiralty ; or the senior officer, commanding a 

 detachment of the fleet or squadron on separate service, who has 

 received such authority under the hand of the officer in chief com- 

 mand that sent him in command on separata service. A court- 

 martial must consist of not more than thirteen, and not less than" 

 five officers, and these officers must be the senior flag officers and 

 captains, titen and titan pretent ; but in case there should be a 

 scarcity of flag officers and captains on the station, the court may 

 nnnsiirt of three port-captains and the two senior commanders. A 

 court which includes more than two commanders is not legally con- 

 stituted. An officer who is nut on full pay and in commission in 

 his proper rank, may not serve as a member of the court ; nor may an 

 officer, whose rank entitling him to be a member, has only been con- 

 ferred on him by the officer commanding in chief, and not yet been 

 notified to him by the Admiralty. Every officer, in order to be capable 

 of serving, is required to be then and t/iert pretent, which is hold to 

 mean that the captain's or commander's ship must be on the station, 

 and that on admiral, if he come from another station for the purpose 

 of serving, must hoist his flag on a ship in commission at the station in 

 question. If a sufficient number of ships should meet at any foreign 

 station, the statute authorises the officer who shall be senior in com- 

 mand to assemble a court martial, but it is held that he cannot do so 

 without the special warrant of the Admiralty sent to him for that 

 purpose. The court must be held afloat ; it cannot assemble on shore 

 without a special Act of Parliament to give it the right. There is no 

 power of challenge, as of right, either to the Judge Advocate or to the 

 prisoner; but as a matter of courtesy, challenges are allowed in 

 practice for good and sufficient reason given. When the court has 

 been completely constituted, the members ore sworn to do their duty, 

 and so also is the Judge Advocate ; the evidence is taken upon oath ; 

 and the court sits from day to day, except Sundays, until the sentence 

 is given. Were it to adjourn even over one day only, the proceedings 

 would thereby bft rendered illegal. The jurisdiction of the court 

 extends not only to the usual offences known to the criminal law of 

 this country, but to offences against the discipline and duty observed 

 by the service. Charges against a prisoner cannot be proceeded with 

 unless they have been made in writing to the Lords of the Admiralty, 

 or to the officer commanding in chief, within three years from the 

 time of committing the offence, or within one year after the return of 

 the fleet, squadron, or ship, in which the offender is sen-ing, or of the 

 offender himself to Great Britain or Ireland. And the prisoner is 

 entitled to have a copy of the charges against him twenty-four hours 

 before the trial, unless there be extraordinary circumstances to excuse 

 it, as in the case of sudden mutiny ; but he is not entitled to any copy 

 of the evidence by which the charges are to be sustained. 



(Oroee, Military Antir/uititt ; Tytler, Eaay on Military Law ; Pren- 

 dergast, Lav relating to Qfietn in the Army ; Byerly Thompson, Mili- 

 tary Parcel and Inttitution* of Great llritain; Hickman, Naval Court*- 

 Martial ; Hough, Omrtt-Martial.) 



COURT OP RECORD. [COURTS.] 



COURT ROLLS. [COPYHOLD.] 



COURTESY OF ENGLAND is the title of a husband to enjoy for 

 life, after his wife's decease, the real projierty of the wife. It is said to 

 be called the "courtesy of England " as being a law peculiar t<> this 

 country. In the law of Scotland, however, it is known by a similar 

 title, as the courtesy or " jus curialitatis.'' It is spoken of in a Rescript 

 of Constantine, Cod. vL, 59, 1 ; and in the laws of the Alcmanni (Lin- 

 denbrog, 'Codex Legum Antiquanmi,' 1613, p. 387 ; ' Lex Alemon.,' 

 c. 92); though by the law of the Alemanni the husband took the 

 inheritance under circumstances similar to those that establish the 

 title to a life estate only in the English law. This title of il,,- hus- 

 band's tenancy of the estates of his wife depends upon a valid marriage, 

 the seisin of the wife during marriage of the same estate respecting 

 which the courtesy is claimed, issue born alive during the wife's life 

 capable of inheriting, and the death of the wife. Lands held by the 

 wife descendible only to her sons would not, in case of the birth of a 



daughter, be subject to this title of the husband ; nor would a child 

 brought into the wurld by the ctesarean operation, after the mother's 

 death, establish it It differs from the similar rights of the wife to 

 dower in several respects, the wife taking only part of the husband's 

 estate, and being entitled to her tenancy though no issue is born ; 

 whereas the husband takes the whole estate, the caput baroni, and 

 such indivisible rights out of which dower U not or cannot be assigned. 

 By the custom of Gavelkind, a man may be tenant by the courtesy 

 without having had issue by his wife. 



< I I. \ N I '. otherwise called in the law of that 



kingdom "jus curialitatis," or right of courtship, is substantially the 

 same with the courtesy of England. As in the latter kingdom, tin- 

 things are necessary to it; namely, marriage, that the wife is an heiress 

 and in f eft, issue, and the. death of the wife. 



According to the ancient law, the courtesy extended only to such 

 lands as the woman brought in tocher; but afterwards it became 

 extended to all the lands to which she had right by inheritance. It was 

 always the law that the wife must be seised. The fourth 

 inheritable issue born alive of the marriage; that is to say, th. 

 born must be the heir of the mother's estate, and it must have been 

 heard to cry ; for though it lie otherwise in England, crying is in S< 

 the only legal evidence of life. In the last place, by such issue the 

 husband has during the life of the wife only j mariti, as Skene says 

 (' De verb, signif. voce Curialitas ') ; after her decease he has jut 

 rurialitatu; or, as Blackstone speaks, with reference to the law of 

 England, the husband by the birth of the child becomes tenant b\ tli 

 courtesy initiate, but his estate is not eontummated till the wife's death, 

 which is the fifth and last requisite to give the complete right of 

 courtesy, the husband needing no seisin or other solemnity to perfect 

 hi.-* title. 



COURTS. The courts of common law in this country, like most 

 other branches of our constitution, have grown up gradually with the 

 progress of the nat ion . and may be traced bock, partly 

 tutions of our Anglo-Saxon forefathers, and partly to the more art itici.d 

 systems introduced under the government of the Norman*. Fr-nn the 

 earliest times of which we have any account, we find the tribm 

 the Germanic nations consisting of a presiding officer, called Graf Reeve 

 or Earl, Comes or Count ; together with certain assessors, whose 

 denominations (and probably their functions also) were different among 

 different tribes and at different periods. Of this nature were the 

 earliest tribunals with which we ore acquainted in this country. The 

 most important of these was that whose jurisdiction extended over a 

 shire or county, in which the presiding officer was at first the all. 

 earl, or count, and subsequently his deputy the vice-count or shwiff 

 (shire reeve). This tribunal exercised ecclesiastical as well a 

 jurisdiction, and the bishop sat as an associate to the earl or sheriff. 



The judicial functions of this court were divided into four distinct 

 branches. The first included all ecclesiastical matters ; and in these 

 the bishop was judge, and the sheriff the assistant, who, if necessary, 

 enforced the sentence of the court by imprisonment. The second 

 branch (in which the sheriff was judge) included all temporal offences, 

 such as felony, assaults, nuisances, and the like. The third head 

 included aU actions of a purely civil nature : here the sheriff was the 

 presiding officer, and executed the judgment ; but the judges were the 

 freeholders who did suit to the court. And fourthly, the sheriff's 

 court held an inquest yearly of frank pledge. The first branch of the 

 jurisdiction of this tribunal was transferred to the Church by the 

 Conqueror, and the bishop soon ceased to sit with the civil magistrate. 

 The criminal jurisdiction of the sheriff has long been obsolete ; his 

 civil jurisdiction bos been transferred to the new County Courts 

 [COUNTY COURTS] ; and the view of frank pledge now exists only as a 

 form. 



In order to exercise his criminal jurisdiction, the sheriff was required 

 twice in every year to moke a tour or circuit of his county. The 

 of determining felonies was taken away by Mogna Charta, but the 

 remains of this tribunal are still known as the sheriff's tourn, and 

 in it cognisance may be taken of false weights, nuisance, and 

 misdemeanors. The view of frank pledge ought to be taken at thi-< 

 tourn. 



Tin' hmd over which the jurisdiction of the sheriff extended is said 

 to have been distinguished as reeve land. The thanes or nobles had, in 

 the lands granted to them, a similar jurisdiction of their own, 

 civil as criminal. (1, Reeve's ' Hist, of English Law,' 7.) The limit* 

 n the jurisdiction of the. slit-riff and that of the lord were t-trietly 

 preserved. But when the lord had no court, or refused to do j 

 or when the parties were not both subject to his jurisdiction, the suit 

 was referred to the tribunal of the Reeve ; and a suit 

 before the lord might be removed by the defendant before the higher 

 tribunal 



The civil tribunal of the lord was similar to the county court in its 



:ition and its powers, except that the presiding ollic . 

 public functionary (as the reeve was), but the bailiff of the I.M.I. Tin- 

 tribunal "till exists under the stylo of the court-boron, ami is incident 

 to every manor in the kindom. The judges are the freeholders who 

 owe suit and service to the lord of the manor, and if there ar. 

 least two such freeholders in the manor the court is lost. This was 

 formerly the proper court in which to commence real action- 

 the title to lands within the manor. The lord's tribunal in criminal 



