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inquests of nisi prius may be taken before any justice of either bench, (though the plea be not depending in his own court,) or before the chief baron of the exchequer, if he be a man of the law; or otherwise before the justices of assize, so that one of such justices be a judge of the king's bench or common pleas, or the king's serjeant sworn. They usually make their circuits in the respective vacations after Hilary and Trinity terms; assizes being allowed to be taken in the holy time of lent by consent of the bishops at the king's request, as expressed in statute Westm. 1, 3 Edw. I. c. 51. And it was also usual, during the times of popery, for the prelates to grant annual licenses to the justices of assize to administer oaths in holy times; for, oaths being of a sacred nature, the logic of those deluded ages concluded that they must be of ecclesiastical cognizance.(q) The prudent jealousy of our ancestors ordained(r) that no man of law should be judge of assize in his own county, wherein he was born or doth inhabit ; and a similar prohibition is found in the civil law,($) which has carried this principle so far that it is equivalent to the crime of sacrilege for a man to be governor of the province in which he was born or has any civil connexion.(t)
The judges upon their circuits now sit by virtue of five several authorities. 1. The commission of the peace. 2. A commission of oyer and terminer. 3. A commission of general gaol-delivery. The consideration of all which belongs
properly *to the subsequent book of these commentaries. But the fourth
commission is, 4. A commission of assize, directed to the justices and serjeants therein named, to take (together with their associates) assizes in the several counties,—that is, to take the verdict of a peculiar species of jury, called an assize, and summoned for the trial of landed disputes, of which hereafter. The other authority is, 5. That of nisi prius, which is a consequence of the commission of assiže,(u) being annexed to the office of those justices by the statute of Westm. 2, 13 Edw. I. c. 30, and it empowers them to try all questions of fact issuing out of the courts of Westminster that are then ripe for trial by jury." These, by the course of the courts.(w) are usually appointed to be tried at Westminster in some Easter or Michaelmas Term, by a jury returned from the county wherein the cause of action arises; but with this proviso, nisi prius, unless before the day prefixed the judges of assize come into the county in question. This they are sure to do in the vacations preceding each Easter and Michaelmas Term, which saves much expense and trouble. These commissions are constantly accompanied by writs of association, in pursuance of the statutes of Edward I. and II. before mentioned; whereby certain persons (usually the clerk of assize and his subordinate officers) are directed to associate themselves with the justices and serjeants, and they are required to admit the said persons into their society, in order to take the assizes, &c., that a sufficient supply of commissioners may never be wanting. But, to prevent the delay of justice by (7) Instances hereof may be met with in the appendix to
() Ff. 1, 22, 3.
(") Salk. 454.
O c. 9, 29, 4.
(1) Stat. 4 Edw. III. c. 2. 8 Ric. II. c. 2. 33 Hen. VIII. c. 24.
25 And now, by 1 Geo. IV. c. 55, s. 5, any judge or baron may, on his circuit, amend a record and make any order in any cause, although it was not in a suit depending in his own court.-Chitty.
26 This restriction was construed to extend to every commission of the judges; but, it being found very inconvenient, the 12 Geo. II. c. 27 was enacted for the express purpose of authorizing the commissioners of oyer and terminer and of gaol-delivery to execute their commissions in the criminal courts within the counties in which they were born or in which they reside. See 4 book, 271. This restriction as to commissioners of assize and nisi prius was taken off by the 49 Geo. III. c. 91.–Chitty.
27 An important act, the 3 Geo. IV. c. 10, was lately passed to remedy the defect of the commission not being opened on the day appointed; by which it is enacted that the commission may be opened on the succeeding day to the one appointed; and if such succeeding day be a Sunday, or any other day of public rest, then on the next following day, provided the opening the commission on the appointed day was prevented by the pressure of business elsewhere, or by some unforeseen cause or accident.-Catty.
the absence of any of them, there is also issued of course a writ of si non omnes, directing that if all cannot be present, any two of them (a justice or a serjeant being one) may proceed to execute the commission.
These are the several courts of common law and equity which are of public and general jurisdiction throughout the kingdom. And, upon the whole, we cannot but admire the wise economy and admirable provision of our ancestors in settling the distribution of justice in a method so well calculated for cheapness, expedition, and ease. By the constitution which they established, all trivial debts and injuries of small consequence were to be recovered or redressod in every *man's own county, hundred, or perhaps parish. Pleas of freehold, and more important disputes of property, were adjourned to the
[*60 king's court of common pleas, which was fixed in one place for the benefit of the whole kingdom. Crimes and misdemeanours were to be examined in a court by themselves, and matters of the revenue in another distinct jurisdiction Now indeed, for the ease of the subject and greater despatch of causes, methods bave been found to open all the three superior courts for the redress of private wrongs; which have remedied many inconveniences, and yet preserved the forms and boundaries handed down to us from high antiquity. If facts are disputed, they are sent down to be tried in the country by the neighbours; but the law arising upon those facts is determined by the judges above: and, if they are mistaken in point of law, there remain in both cases two successive courts of appeal to rectify such their mistakes. If the rigour of general rules does in any case bear hard upon individuals, courts of equity are open to supply the defects, but not sap the fundamentals, of the law. Lastly, there presides over all one great court of appeal, which is the last resort in matters of both law and equity, and which will therefore take care to preserve a uniformity and equilibrium among all the inferior jurisdictions: a court composed of prelates selected for their piety, and of nobles advanced to that honour for their personal merit, or deriving both honour and merit from an illustrious train of ancestors; who are formed by their education, interested by their property, and bound upon their conscience and honour, to be skilled in the laws of their country. This is a faithful sketch of the English juridical constitution, as designed by the masterly hand of our forefathers, of which the great original lines are still strong and visible; and if any of its minuter strokes are by the length of time at all obscured or decayed, they may still be with ease restored to their pristine vigour; and that not so much by fanciful alterations and wild experiments (so frequent in this fertile age) as by closely adhering to the wisdom of the antient plan, concerted by Alfred and perfected by Edward I., and by attending to the spirit, without neglecting the forms, of their excellent and venerable institutions.
OF COURTS ECCLESIASTICAL, MILITARY, AND MARITIME. Besides the several courts which were treated of in the preceding chapter, and in which all injuries are redressed that fall under the cognizance of the common law of England, or that spirit of equity which ought to be its constant attendant, there still remain some other courts of a jurisdiction equally public and general, which take cognizance of other species of injuries of an ecclesiastical, military, and maritime nature; and therefore are properly distinguished by the title of ecclesiastical courts, courts military, and maritime.
I. Before I descend to consider particular ecclesiastical courts, I must first of all in general premise that in the time of our Saxon ancestors there was no sort of distinction between the lay and the ecclesiastical jurisdiction: the countycourt was as nuch a spiritual as a temporal tribunal: the rights of the church were ascertained and asserted at the same time, and by the same judges, as tho rights of the laity. For this purpose the bishop of the diocese, and the alderinan, or in his absence the sheriff of the county, used to sit together in the county-court, and had there the cognizance of all causes, as well ecclesiastical as civil: a superior deference being paid to the bishop's opinion in spiritual matters, and to that of the lay judges in temporal.(a) This union of power was *62]
very advantageous to them both; the presence of the *bishop added
weight and reverence to the sheriff's proceedings; and the authority of the sheriff was equally useful to the bishop, by enforcing obedience to his decrees in such refractory offenders as would otherwise have despised the thunder of mere ecclesiastical censures.
But so moderate and rational a plan was wholly inconsistent with those views of ambition that were then forming by the court of Rome. It soon became an established maxim in the papal system of policy, that all ecclesiastical persons and all ecclesiastical causes should be solely and entirely subject to ecclesiastical jurisdiction only; which jurisdiction was supposed to be lodged in the first place and immediately in the pope, by divine indefeasible right
and investiture from Christ himself, and derived from the pope to all inferior tribunals. Hence the canon law lays it down as a rule, that “ sacerdotes a regibus honorandi sunt, non judicandi ;") and places an emphatic reliance on a fabulous tale which it tells of the emperor Constantine, that when some petitions were brought to him, imploring the aid of his authority against certain of his bishops accused of oppression and injustice, he caused (says the holy canon) the petitions to be burnt in their presence, dismissing them with this valediction, "ite et inter vos causas vestras discutite, quia dignum non est ut nos judicemus Deos.”(C)
It was not, however, till after the Norman conquest that this doctrine was received in England; when William I. (whose title was warmly espoused by the monasteries, which he liberally endowed, and by the foreign clergy, whom he brought over in shoals from France and Italy and planted in the best preferments of the English church) was at length prevailed upon to establish this fatal encroachment, and separate the ecclesiastical court from the civil: whether actuated by principles of bigotry, or by those of a more refined policy, in order to discountenance the laws of king Edward, abounding with the spirit
of Saxon liberty, is not altogether *certain. But the latter, if not the
cause, was undoubtedly the consequence, of this separation; for the Saxon laws were soon overborne by the Norman justiciaries, when the countycourt fell into disregard by the bishop's withdrawing his presence, in obedience to the charter of the Conqueror;(d) which prohibited any spiritual cause from being tried in the secular courts, and commanded the suitors to appear before the bishop only, whose decisions were directed to conform to the canon law.(e)
King Henry the First, at his accession, among other restorations of the laws of king Edward the Confessor, revived this of the union of the civil and ecclesiastical courts. (f) Which was, according to Sir Edward Coke,(9) after the great heat of the conquest was past, only a restitution of the antient law of England. This, however, was ill relished by the popish clergy, who, under the guidance of that arrogant prelate, archbishop Anselm, very early disapproved of a measure that put them on a level with the profane laity, and subjected spiritual men and causes to the inspection of the secular magistrates : and therefore in their synod at Westminster, 3 Hen. I., they ordained that no bishop
(a) Celeberrimo huic conventui episcopus et aldermannus sed secundum canones et episcopales leges, rectum Deo et inter sunto; quarum alter jura divina, alter humana popri episcopo suo faciat. lum edoceto. LL. Eadgar. c. 5.
Volo et præcipio, ut omnes de comitatu eant ad comitatus (6) Decret. part. 2, caus. 11, qu. 1, c. 41.
d hundreda, sicut fecerint tempore regis Edwardi. Cart. Ibid.
Hen. I. in Spelm. Cnd. vet. legum, 305. And what is here Hale, Hist. C. L. 102. Selden, in Eadm. p. 6, 1. 24. 4 obscurely hinted at is fully explained by his code of laws Inst. 259. Wilk. LL. Angl. Sar. 292.
extant in the red book of the exchequer, though in general (*) Nullus episcopus vel archidiacomus de legibus episco- but of doubtful authority. Cap. 8. Generalia comitetuum palibus amplius in hundrat placila teneant, nec cousam, placita certis locis e vicibus teneantur. Intersint autem epis quæ ad regimen animarum pertinet ad judicium secularium crpi, comites, dc.; et agantur primo debita veræ christianihominum addurant: sed quicunque secundum episcopales talis jura, secunda regis placita, prostremo causæ sigulorum leges, de quacunque causa vel culpa interpellatus fuerit, ad dignis satisfactionibus expleantur. locum, quem ad hoc episcopus elegerit e nominaverit, veniat; ( 2 Inst. 70. ibique de causa sua respondeat; e non secundum hundret,
should attend the discussion of temporal causes;(h) which soon dissolved this newly-effected union. And when, upon the death of king Henry the First, *the usurper Stephen was brought in and supported by the clergy, we
[*64 find one article of the oath which they imposed upon him was, that ecclesiastical persons and ecclesiastical causes should be subject only to the bishop's jurisdiction.(i) And as it was about that time that the contest and emulation began between the laws of England and those of Rome,(k) the temporal courts adhering to the former, and the spiritual adopting the latter as their rule of proceeding, this widened the breach between them, and made a coalition afterwards impracticable ; which probably would else have been effected at the general reformation of the church.
In briefly recounting the various species of ecclesiastical courts, or, as they are often styled, courts christian, (curiæ christianitatis,) I shall begin with the lowest, and so ascend gradually to the supreme court of appeal.(I)
1. The archdeacon's court is the most inferior court in the whole ecclesiastical polity. It is held in the archdeacon's absence before a judge appointed by himself, and called his official; and its jurisdiction is sometimes in concurrence with, sometimes in exclusion of, the bishop's court of the diocese. From hence, however, by statute 24 Hen. VIII. c. 12, an appeal lies to that of the bishop.
2. The consistory court of every diocesan bishop is held in their several cathu drals, for the trial of all ecclesiastical causes arising within their respective dioceses. The bishop's chancellor, or his commissary, is the judge ; and from his sentence an appeal lies, by virtue of the same statute, to the archbishop of each province respectively.
3. The court of arches is a court of appeal belonging to the archbishop of Canterbury;
whereof the judge is called *the dean of the arches, because he antiently held his court in the church of Saint Mary le bow, (sancta
[*65 Maria de arcubus,) though all the principal spiritual courts are now holden at doctors' commons.
His proper jurisdiction is only over the thirteen peculiar parishes belonging to the archbishop in London ; but the office of dean of the arches having been for a long time united with that of the archbishop's principal official, he now, in right of the last-mentioned office, (as doth also the official principal of the archbishop of York,) receives and determines appeals from the sentences of all inferior ecclesiastical courts within the province. And from him an appeal lies to the king in chancery, (that is, to a court of delegates appointed under the king's great seal,) by statute 25 Hen. VIII. c. 19, as supreme head of the English church, in the place of the bishop of Rome, who formerly exercised this jurisdiction; which circumstance alone will furnish the reason why the popish clergy were so anxious to separate the spiritual court from the temporal. 4. The court of peculiars is a branch of and annexed to the court of arches. It has a jurisdiction over all those parishes dispersed through the province of Canterbury in the midst of other dioceses, which are exempt from the ordinary's jurisdiction and subject to the metropolitan only. All ecclesiastical causes arising within these peculiar or exempt jurisdictions are, originally, cognizable by this court; from which an appeal lay formerly to the pope, but now, by the statute 25 Hen. VIII. c. 19, to the king in chancery.
5. The prerogative court is established for the trial of all testamentary causes where the deceased hath left bona notabilia within two different dioceses. In which case the probate of wills belongs, as we have formerly seen,(m) to the archbishop of the province, by way of special prerogative. And all causes relating to the wills, administrations, or legacies of such persons are, originally, cognizable herein, before a judge appointed by the archbishop, called the judge prerogative court: from whom an appeal lies, by statute 25 Hen.
[*66 VIII. c. 19, to the king in chancery, instead of the pope, as formerly.
Ne episcopi sæcularium placitorum officium suscipiant. (4) For further particulars, see Burn's Ecclesiastical Law, Epelm. Cod. 301.
Wood's Institute of the Common Law, and Oughton's Ordo Spelm. Cod. 301.
() Sor book i. int Vol. II.-4
(m) Book ii. ch. 32
I pass by such ecclesiastical courts as have only what is called a voluntary, and not a contentious, jurisdiction ; which are merely concerned in doing or selling what no one opposes, and which keep an open office for that purpose, (as granting dispensations, licenses, faculties, and other remnants of the papal extortions, but do not concern themselves with administering redress to any injury: and shall proceed to
6. The great court of appeal in all ecclesiastical causes, viz., the court of delegates, judices delegati, appointed by the king's commission under his great seal, and issuing out of chancery, to represent his royal person, and hear all appeals to him made by virtue of the before-mentioned statute of Henry VIII. This commission is frequently filled with lords, spiritual and temporal, and always with judges of the courts at Westminster, and doctors of the civil law. Appeals to Rome were always looked upon by the English nation, even in the times of popery, with an evil eye, as being contrary to the liberty of the subject, the honour of the crown, and the independence of the whole realm; and were first introduced in very turbulent times in the sixteenth year of king Stephen, (A.D. 1151,) at the same period (Sir Henry Spelman observes) that the civil and canon laws were first imported into England (n) But, in a few years after, to obviate this growing practice, the constitutions made at Clarendon, 11 Hen. II., on account of the disturbances raised by archbishop Becket and other zealots of the holy see, expressly declare, that appeals in causes ecclesiastical ought to lie, from the archdeacon to the diocesan; from the diocesan to the archbishop of the province; and from the archbishop to the king; and are not to proceed any further without special license from the crown. But the unhappy advan
. tage that was given, in the reigns of king John and his son Henry the Third, to *67]
the encroaching *power of the pope, who was ever vigilant to improve
all opportunities of extending his jurisdiction hither, at length riveted the custom of appealing to Rome in causes ecclesiastical so strongly, that it never could be thoroughly broken off till the grand rupture happened in the reign of Henry the Eighth ; when all the jurisdiction usurped by the pope in matters ecclesiastical was restored to the crown, to which it originally belonged: 80 that the statute 25 Hen. VIII. was but declaratory of the antient law of the realm.(p) But in case the king himself be party in any of these suits, the appeal does not then lie to him in chancery, which would be absurd ; but, by the statute 24 Hen. VIII. c. 12, to all the bishops of the realm, assembled in the upper house of convocation.'
7. A commission of review is a commission sometimes granted, in extraordinary cases, to revise the sentence of the court of delegates, when it is apprehended they have been led into a material error. This commission the king may grant, although the statutes 24 & 25 Hen. VIII. before cited, declaro the sentence of the delegates definitive: because the pope, as supreme head by the canon law, used to grant such commission of review; and such authority as the pope heretofore exerted is now annexed to the crown(q) by statutes 26 Hen. VIII. c. 1, and 1 Eliz. c. 1. But it is not matter of right, which the subject may demand ex debito justitiæ, but merely a matter of favour, and which therefore is often denied.
These are now the principal courts of ecclesiastical jurisdiction : none of which are allowed to be courts of record; no more than was another much more favourable jurisdiction, but now deservedly annihilated, viz., the court of the king's high commission in causes ecclesiastical. This court was erected and
No such assembly can exist as all the bishops of the realm in any house of convo cation. But the statute says that the appeal shall be to the bishops, abbots, and priors of the upper house of the convocation of the province in which the cause of the suit arises. Therefore, in the province of York, the appeal lies now to the archbishop and his three bishops; in the province of Canterbury, to the rest of the bench of bishops. See 1 Book, 280, n. 36. When the delegates are equally divided in opinion, so that no judgment van be pronounced, a commission of adjuncts may issue. See an instance referred to in