David Bates.

The standard library cyclopaedia of political, constitutional, statistical and forensic knowledge. Forming a work of universal reference on subjects of civil administration, political economy, finance, commerce, laws, and social relations online

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shelter of man, beast, or property. Mines,
other than coal-mines, are exempted, and
the exemption extends to limestone and
other stone quarries, or to other matter
that is obtained by quarrying. The
county rate is to be assessed upon parishes
" rateably and equally according to the full



and fair annual value of the messuages,
lands, tenements, and hereditaments liable,
or which might be liable, to be rated to
the relief of the poor." The sum as-
sessed in 1833 was about 8} per cent, (or
lather more than one-twelfth ) of the levy
for the poor, out of which fund it is paid,
and in 1843 the proportion was between
one-sixth and one-seventh. About five-
eighths of the assessment is paid by land,
and three-eighths by houses, mills, ma-
nors, canals, &c The act 55 Geo. III. c.
51, already mentioned, has not been found
very successful in correcting unfair valu-
ations, as the overseers on whom the re-
valuation depends have an interest in a
low rateable value. " In some counties
the contribution to the Land Tax serves
as a scale for the proportionate contribu-
tion. In these cases the proportion has
been unchanged since the year 1792, not-
withstanding the subsequent alterations in
the value of property. In other counties
the valuation to the Property Tax made
in the years 1814-1815 determines the ■
scale of contribution. In other counties
some ancient scale, of which the origin is
unknown to the respective clerks of the
peace, determines the proportion. In
other counties the nominal valuation to
poor's rate, uncorrected by the applica-
tion of the powers of 55 Geo. III. c. 51,
and made in some counties in or very early
after the year 1739, and in other counties
at various periods between that date and
the present time, serves as the basis of the
contribution to the county rate. All these
various practices are alike complained of
as unequal in the counties in which they
are adopted." (Report on Local Taxation.)
In the session of 1845 a bill was brought
in to amend the law relating to the assess-
ing, levying, and collecting of county
rates. It provided for the appointment
by the justices at general or quarter ses-
sions of a committee to consist of not
more than eleven nor less than five jus-
tices, whose duty it should be to prepare
a fair and equal county rate, with power
to alter and amend it from time to time as
circumstances might require. By § 4
the words " full and fair valuation" shall
be taken to mean " the net annual value
of any rateable property, that is to say,
the rent at which the same might reason-



COURT-MARTIAL.



[705]



COURT-MARTIAL.



ably be expected to let for from year to
year free of all tenants' rates and taxes,
and tithe commutation rent-charge (if
any), and deducting therefrom the pro-
bable average annual cost of the repairs,
and insurance, and other expenses (.if
any), necessary to maintain them in a
state to command such rent." The fate
of this bill is not at present (May,
1845) known.

The proportion in the £ to the county
rate valuation in England and Wales and
for several of the counties is as follows : —

England, Sfi ; Wales, 3jd. ; Nor-
thumberland, lid.; Bedford, 12jd. f'
Westmoreland, 2$d. ; Middlesex, 3£<£;
Lancaster, l^rf. ; Anglesey, 2id. ; Pem-
broke, Id.

COURT BARON. [Manor.]

COURT-MARTIAL, a tribunal occa-
sionally instituted for the purpose of try-
ing military and naval men for the com-
mission of offences affecting discipline in
either of those branches of the public
service.

Courts for the trial of rebels by martial
law appear to have early existed in this
country ; and in the time of Henry VIII.
the Marshal of England held one regu-
larly for the trial of causes connected
with military discipline. In the reigns
of Elizabeth and her successor, those
courts of war, as they were called, were
superintended not by the marshal, but by
a president chosen for the purpose. This
president was probably a general or field-
officer, but captains of companies were
allowed to sit as members. The colonel
of each regiment was charged with the
duty of preparing the evidence relating to
offences which fell under his cognizance,
and of bringing it before the court. But
courts-martial in their present form were
instituted in the reign of James II. ; and
in the ordinances of war published in
1686 they are distinguished as general or
regimental. Subsequently to the revolu-
tion, their powers have been expressly
regulated by parliament, and are fully
detailed in what is called the Mutiny Act,
which is revised and renewed every year.
Naval courts-martial are regulated by the
statute 22 Geo. II. c. 33.

General courts-martial are assembled
under the authority of the king, or of an



officer having the chief command within
any part of his majesty's dominions to
whom such authority may be delegated.
Regimental courts-martial are held by the
appointment of the commanding officer
of the regiment. The East India Com-
pany's Mutiny Act empowers the govern-
or-general in council, and the governor
in council, at the presidencies of Fort
William, Fort St. George, and Bombay,
and at St. Helena, to appoint general
courts-martial, or to authorize any mili-
tary man not below the rank of a field-
officer to do so. What are called detach-
ment courts-martial may be either general
or regimental, and their appellation is
derived from the nature of the command
with which the officer convening the court
is invested.

The chief crimes of which a general
court-martial takes cognizance are mutiny,
abandonment of a fortress, post, or guard
committed to the charge of an officer or
soldier, disobedience of orders, and deser-
tion : these crimes, if proved to their
greatest extent, are punishable with death ;
and the penalty extends to any military
man, being present, who does not use his
best endeavours to prevent them. In
desertion is included the fact of enlisting
in any regiment without having had a
regular discharge from that in which the
offender may have last served. The prac-
tice of sending challenges between com-
missioned officers is punished with cash-
iering j between non-commissioned officers
and privates, with corporal punishment :
and, in all cases, seconds and accessories
are held to be equally guilty with the
principals. Self-mutilation, theft, making
false returns of stores, and neglect of
ordinary duty, in non-commissioned offi-
cers and privates, are usually punished by
the infliction of a certain number of lashes,
not exceeding one thousand ; and men of
the former class may, in addition to other
punishments, be suspended, or degraded
to the ranks. There are many offences
which might tend to the subversion of
discipline; but which are hardly capable
of being precisely defined, as immorali-
ties, and behaving in a manner unbe-
coming an officer and a gentleman ; of
these the courts-martial take cognizance,
and on conviction the offender may be



COURT-MARTIAL. [ 706 J



COURT-MARTTAL.



dismissed from the service. At home,
military men are not, in general, amena-
ble to courts-martial for civil offences ;
hut abroad, where there may be no civil
tourts, the case is different.

The provisions of the Mutiny Act affeet
not only the cavalry and infantry of the
regular army, but extend to the officers
and privates in the corps Qf artillery,
engineers, and marines ; to all troops in
the employment of the East India Com-
pany, or serving in the colonies ; to the
militia during the time that it is assem-
bled and being trained ; and, lastly, to the
yeomanry and volunteer corps. All are
subject, without distinction, to trial and
punishment by courts-martial.

The rules of the service require that
the president of every general court-mar-
tial should be a field-officer, if one of that
rank can be obtained; but, in no case,
must he be inferior in rank to a captain.
And it should be observed, that none of
the members are to be subalterns when a
field-officer is to be tried. As the presi-
dent has the power of reviewing the pro-
ceedings, it is prescribed, and the pro-
priety of the regulation is manifest, that
he be not the commander-in-chief or
governor of the garrison where the offend-
er is tried. A judge-advocate is appointed
to conduct the prosecution in the name of
the sovereign, and act as the recorder of
the court.

No general courts-martial held in
Great Britain or Ireland are to consist
of less than thirteen or nine commissioned
officers, as the case may require ; but in
Africa and in New South Wales the
number may be not less than five ; and,
in all other places beyond sea, not less
than seven. Commonly, however, a
greater number are appointed, in order to
guard against accidents arising from any
of the members being found disqualified
or falling sick. An uneven number is
purposely appointed, in order that there
may be always a casting vote ; and the
concurrence of two-thirds of the members
composing the court is requisite in every
capital sentence. No officer serving in
the militia can sit in any court-martial
upon the trial of an officer or soldier in
the regular army ; and no officer in the
regulars is allowed to sit in a court-mar-



tial on the trial of an officer or private
serving in the militia. Likewise, when
marines, or persons in the employment of
the East India Company, are tried, the
court must be composed of members con-
sisting in part of officers taken from the
particular service to which the offender
belongs. The members both of genera.',
and regimental courts-martial take rank
according to the dates of their com-
missions ; and there is a particular regu-
lation for those who hold commissions by
brevet. [Brevet.] They are always,
sworn to do their duty, and witnesses are
examined upon oatb.

In the accusation the crime or offence
must be clearly expressed, and the acts of
guilt directly charged against the accused ;
the time and place must be set forth with
all possible accuracy ; and, at a general
court-martial, a copy of the charge must
be furnished by the judge-advocate to the
accused, that he may have full opportu- .
uity of preparing his defence. . The ac-
cused has the power of challenging any of
the members, but the reason of the chal-
lenge must be given, and this must be
well founded, otherwise it would not be
admitted j for the ends of justice might be
often defeated from the impossibility of
getting members to replace those who
were challenged.

The court must discuss every charge
brought against the accused, throwing out
only such as are irrelevant ; and judgment
must be given either upon each article
separately, or the decision of the court
upon all may be included in one verdict.
The evidence is taken down in writing, so
that every member of the court may have
the power occasionally of comparing the
proceedings with his own private notes ;
and he is thus enabled to become com-
pletely master of the whole evidence before
he is required to give his opinion. At the
last stage of the trial the decisions of the
several members are taken in succession,
beginning with the junior officer on the
court : a regulation adopted obviously in
order to insure the unbiassed opinions of
those who might otherwise be influenced
by deference to the members who are
superior to them in age or rank.

Regimental or garrison courts-martial
are appointed by the commanding officer,



COURT-MARTIAL.



[707]



COURTESY.



for the purpose of inquiring into criminal
matters of the inferior degrees ; and they
are empowered to inflict corporal punish-
ments to a certain extent only. The
articles of war require that not less than
five officers should constitute a court of
this nature, or three when five cannot be
obtained. The practice is to appoint a
captain as president, and four or two
subalterns as the case may be ; the court
has no judge-advocate to direct it ; there-
fore the members must act on their own
responsibility. The proceedings are to be
taken down in writing, and the sentence
cannot be put in execution till it has been
confirmed by the commanding officer, or
by the governor of the garrison.

No commissioned officer is amenable to
a regimental court-martial ; but if an in-
ferior officer or private should think him-
self wronged by such, he may, on appli-
cation to the commanding officer of the
regiment, have his cause brought before
a regimental court-martial, at which, if
the complaint is judged to be well founded,
he may on that authority require a general
court-martial to be held.

An appeal may be made from the sen-
tence of a court-martial by the party who
conceives that he has suffered injustice :
the appeal lies from a regimental to a
general court-martial ; and from this to
the supreme courts of law in the kingdom.
It is easy to imagine, however, that the
superior court will refuse to receive the
appeal unless there should be very satis-
factory evidence that the merits of the case
have not been fairly discussed.

After the sentence of the court-martial
has been pronounced, it is transmitted to
the king, who may either confirm it, or,
if sufficient reason should exist, may, on
the ground that the process is not complete
till the royal sanction has been given to
the judgment, return it to the court for
revision ;. or again, by virtue of his pre-
rogative, he may remit the punishment
awarded.

The chief distinction between the trial
by court-martial and by jury is, that in
the latter the verdict must be unanimous,
while in the former the concurrence of a
majority only in opinion determines the
verdict. The writers on military law
have endeavoured to show that the advan-



tages in this respect are on the side of the
court-martial : they contend that every
member of such court delivers the opinion
which he has formed from the evidence
before him ; while it may frequently
happen in other courts that, in order to
procure unanimity, some of the jury must
surrender their own opinions. It may be
observed, however, that in such a case
the decisions are at least of equal value,
since, in the event of a concession of
private judgment, the verdict is in fact
formed on the opinion of the majority.

(Grose, Military Antiquities ; Tytler,
Essay on Military Law ,• Samuel, His~
torical Account of the British Army.;
Simmons, On the Practice of Courts-
Martial, with Supplement.')

COURTESY OF ENGLAND is the
title of a husband to enjoy for life, after
his wife's decease, lands of the wife
of which she and the husband were
seised in deed in the wife's right, for an
estate of inheritance, and to which issue
of the marriage is born which by possi-
bility may inherit. It is said to be called
courtesy of England as being peculiar to
this country. In the law of Scotland
however it is known under the title of
"jus curialitatis," and it is also stated
in the laws of the Alemanni, Linde-
brog, ' Codex Legum Antiquarum,* 1613,
p. 387, ' Lex Aleman.' c. 92 ; though by
the law of the Alemanni the husband took
the inheritance under circumstances simi-
lar to those that establish the title to a
life estate only in the English law. This
title of the husband's tenancy of the
estates of his wife depends upon a valid
marriage, the seisin of the husband and
wife in right of the wife during marriage
of the same estate respecting whicli
courtesy is claimed, issue born alive
during the wife's life which is capable of
inheriting, and the previous 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
claim of the husband; nor would a child
brought into the world by the csesarean
operation, after the mother's death, esta-
blish it. It differs from the similar right
of the wife to dower in several respects.
[Dower.]

By the custom of Gavelkind, a man
2z2



COURTS.



I 708 ]



COURTS.



may be tenant by the courtesy with-
out haying had issue by his wife; but
he has only half of the lands, and he loses
them if he marries again. There is no
tenancy by the courtesy of copyhold
lands except by special custom, and the
customs are various. (Cruise, Digest i.
' Copyhold.')

COURTESY OF SCOTLAND, other-
wise 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,
five things are necessary to it ; namely,
marriage, that the wife is an heiress and
infeft, issue, and the death of the wife.

As to the marriage, it must indeed be
a lawful marriage, but it is not necessary
that it be regular and canonical; it is
sufficient that it is valid in law, whatever
be the precise form in which it became
so. According to the ancient borough
laws, c. 44, the courtesy extended only to
such lands as the woman brought in
tocher ; but afterwards it was the lands
to which she had right by inheritance, as
the law still is. It was always the law
that the wife must be heritably infeft and
seised in the lands. The fourth requisite
is, inheritable issue born alive of the mar-
riage ; that is to say, the child born must
be the heir of the mother's estate, and it
must have been heard to cry ; for though
it be otherwise in England, crying is in
Scotland the only legal evidence of life. In
the last place, by such issue the husband
has during the life of the wife only jus
mariti, as Skene says (De verb, signif.
voce Carialitas) ; after her decease he has
jus curialitatis ; or as Blackstone speaks,
with reference to the law of England, the
husband by the birth of the child becomes
tenant by the courtesy initiate, but his
estate is not consummated till the wife's
death ; which is the fifth and last requi-
cite to give the complete"rightof courtesy,
the husband needing no seisin or other
solemnity to perfect his title.

COURT OF RECORD. [Courts.]

COURTS. The word court has come
from the French cour, which is from the
Latin curia. The Roman citizens were
originally distributed into thirty curiae,
which were political divisions ; but the
name curia was also given to the buildings



in which the curiae met. The place of
assembly of the Roman Senate was also
called curia, and the name is often used
to signify the senate or body of senators.
The name curia was in fact given to a
place either for the celebration of religious
observances or the transaction of civil
business. The French word cour is de-
fined to be " a part of the house which is
not built upon, and is immediately behind
the carriage entrance or other entrance,
and in the better sort of houses is paved."
(Richelet, Dictionnaire.) It also signifies
the residence of a prince (Aula); the
government of a country, as la cour de la
France ; the judges of a supreme court, or
the court itself, as la cour de parlement.
These various significations occur in the
English language : we speak of the court
of a house, of the king's court, of the
high court of parliament, and of the courts
of law and equity.

The courts of common law in this
country, like most other branches of our
constitution, have grown up gradually
with the progress of the nation, and may
be traced back, partly to the institutions
of our Anglo-Saxon forefathers, and
partly to the more artificial systems intro-
duced under the government of the Nor-
mans.

From the earliest times of which we
have any account, we find the tribunals
of the Germanic nations consisting of a
presiding officer, called graf reeve or
earl, comes or count ; together with cer-
tain assessors, whose denominations (and
probably their functions also) were dif-
ferent among different tribes and at dif-
ferent periods. Of this nature were the
earliest tribunals with which we are
acquainted in this country. The most
important of these was that whose juris-
diction extended over a shire or county,
in which the presiding officer was at first
the earl, alderman, or count ; and subse-
quently, his deputy the vice-count or
sheriff (shire-reeve). This tribunal exer-
cised ecclesiastical as well as civil juris-
diction, 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 of-
fences ; and in these the bishop was judge,



COURTS.



L709]



COURTS.



and the count or sheriff his assistant, and
if the delinquent disregarded the censures
of the church, he enforced the sentence
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 all actions of a purely
civil nature : here the sheriff was the pre-
siding officer, and executed the judgment ;
but the judges were the freeholders who
did suit to the court. And, fourthly, the
sheriffs court held an inquest yearly of
frank pledge. One branch of the juris-
diction of this tribunal was abolished by
William the Conqueror, who separated
the ecclesiastical from the civil power,
and the bishop was no longer associated
with the civil magistrate. The view of
frank pledge now exists only as a form,
but the other two branches of jurisdiction
still subsist, though with diminished power
and importance.

In order to exercise his criminal juris-
diction, the sheriff was required twice in
every year to make a tour or circuit of
his county. The power of determining
felonies was taken away by Magna Charta,
but the remains of this tribunal are still
known as the sheriff's tourn, in which
cognizance is taken of false weights,
nuisance, and other misdemeanors. The
civil jurisdiction of the sheriff still con-
tinues in the county court, the powers of
which were limited to cases under forty
shillings, at least as early as the reign of
King Edward I. : and that sum now (ex-
cept in case of replevin) limits the ordin-
ary jurisdiction of the county court.

The land over which the jurisdiction
of the sheriff extended, is said to have
been distinguished as reve land. The
thanes or nobles had, in the lands granted
to them, a similar jurisdiction of their
own, both civil and criminal. (1, Reeve's
Hist, of English Law, 7.) The limits
between the jurisdiction of the sheriff and
that of the lord were strictly preserved.
But when the lord had no court, or refused
to do -justice, or when the parties were
not both subject to his jurisdiction, the
suit was referred to the tribunal of the
reeve ; and a suit commenced 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 consti-
tution and its powers, except that the
presiding officer was not a public func-
tionary (as the reeve was), but the bailiff
of the lord. This court still exists under
the style of the court baron, and is inci-
dent to every manor in the kingdom. The
judges are the freeholders who owe suit
and service to the lord of the manor, and
if there are not at least two such free-
holders in the manor, the court is lost.
This was formerly the proper court in
which to commence real actions to try
the title to lands within the manor. The
lord's court in criminal cases, in which
he had the same powers that the sheriff
exercised in his turn, was called the
Leet.

The same powers which were exercised
over a particular manor by the court
baron and court leet, were also exercised
over particular hundreds by the hundred
court and the leet of the hundred. But
the number of these courts was much
diminished by stat. 14 Edward III., by
which all hundreds, except such as were
of estate in fee, were rejoined (as to the
bailiwick of the same) to the counties at
large.

Besides these courts of inferior juris-
diction, there was also a Supreme Court
in which the king presided. In the Saxon
age, and for some time after, the legis-
lative, the administrative, and the ju-
dicial functions of the government had
not been separated ; and the Wittenage-
mote, or meeting of the wise, was con-
sulted by the king in all these depart-
ments indiscriminately. The Anglo-
Saxon king had the same jurisdiction
over his thanes that they had over their
own vassals. He punished all enormous
crimes committed against the king^s
peace. His court was likewise open to
all those to whom justice had been
refused in the inferior courts ; and he had
the power of punishing the judges if they
pronounced an iniquitous sentence. It
also seems probable that the king's court
was a court of appeal, in which the judg-



Online LibraryDavid BatesThe standard library cyclopaedia of political, constitutional, statistical and forensic knowledge. Forming a work of universal reference on subjects of civil administration, political economy, finance, commerce, laws, and social relations → online text (page 45 of 76)