tion, but may entertain a claim for indemnity.* In matters spiritual the ecclesiastical courts can only carry out their sentences by spiritual remedies. In all other cases, especially in matters of a criminal nature, the temporal arm must give support. By 13 Edw. I. stat. 4, these courts were empowered to apply spiritual penalties to cases of libel and slander. The spiritual court only intervened where the defamation was of a spiritual nature, as where contumelious words, such as "adulterer," etc., were employed. The power of inflicting penalties in cases of defamation and brawling has been withdrawn by later enactments, unless these offences have been committed by clerks, or persons ecclesiastical. The spiritual penalties to which laymen are subjected consist in penance," which, in the case of certain crimes is to be carried out after the ancient observance as "amende honorable." In offences of a minor nature a milder form of penance is applied : a pecuniary penalty being substituted for the actual penance, with the consent of the bishop or his court. Should the condemned party refuse to do penance, he is excommunicated. In cases of contempt against the ecclesiastical courts, minor excommunication was formerly incurred, the ecclesiastical judges passing sentence of exclusion from the Church and from the sacrament; not a very terrible privation, it must be owned, in the case of Catholics or Dissenters. The major excommunication entailed severe political and civil consequences. It not only excluded from the community of the faithful, but rendered the person excommunicated incapable of discharging any office. By 53 Geo. III. c. 27, imprisonment for six months was substituted. By 2 and 3 Will. IV. c. 93, new rules in regard to excommunication, incurred on the ground of contempt, were introduced. The execution of the sentence of imprisonment pertains to the Court of Chancery, a writ de excommunicato capiendo, being issued at the instance of the ecclesiastical court, in consequence whereof the person inculpated is consigned to prison. The Court of Admiralty was established by Edward III. and is held in Doctors' Commons by the Lord High Admiral of England, or his deputy, who is called the Judge of the Admiralty. Like all the ecclesiastical courts it is not a court of record, and its proceedings are according to the method of the civil law. * Burns, i. 388 d. e. ii. 50. + Burns, iii. 241 Burns, ii. 243. Since 3 and 4 Vict. c. 65, s. 11, 13, it may have a question of fact determined by a judge of the common law in conjunction with a jury. Wherever offences had taken place on the high seas, the Court of Admiralty had jurisdiction to try it according to the civil law. By the statute 28 Hen. VIII. c. 15, however, it was enacted that such offences should be tried by commissioners of oyer and terminer under the king's great seal, and that the proceedings should be conducted according to the common law. By the 4 and 5 Will. IV. c. 36, s. 22, where offenders are committed to, or detained in, the jail of Newgate for any offence triable by the Admiralty jurisdiction, the Central Criminal Court is empowered to inquire of, hear, and determine any offences committed on the high seas. As Instance Court, this court decides upon cases of bottomry, disputes between part-owners of ships, or concerning mariner's wages, and salvage. In time of war it receives a special commission, and then sits as a prize court, "to proceed upon all manner of captures, seizures, prizes, and reprisals, of ships and goods, which are or shall be taken, and to hear and determine according to the courts of the Admiralty and the law of nations." Appeal lies to the Admiralty from the prize courts in America and the other colonies. Formerly from the Admiralty Court appeal lay to the Court of Chancery; it now lies to the judicial committee of the Privy Council.* Bowyer, 283. CHAPTER X. UNIVERSITY COURTS. The Disciplinary Power of the Heads and Governors.-Chancellor's Court.—Manifold Appeal Court of the Lord High Steward. THE heads and governors of colleges have merely a disciplinary, but no special, penal power over the fellows and students. The university jurisdiction, since the time of Richard II., has been exercised in the next place by the chancellor's court, which enjoys the sole jurisdiction, in exclusion of the Queen's Courts, over all civil actions and suits whatsoever, excepting where a right of freehold is concerned, and all injuries and trespasses against the peace,* mayhem and felony excepted. When a scholar or privileged person is one of the parties, the University Courts are able to try and determine, either according to the common law, or according to their own local custom. They carry on their processes in a course much conformed to the civil law. The vice-chancellor, his deputy or assessor, is the judge of the chancellor's court. From his sentence an appeal lies to the delegates appointed by the congregation; thence to other delegates of the house of convocation; and if they all three concur in the same sentence it is final. But if there be any discordance in any of the three sentences, an appeal lies in the last resort to judge's delegates appointed by the Crown under the great seal in Chancery. In cases of treason, felony, and high misdemeanors the court of the lord high steward sits in judgment; its functions have, however, fortunately not been called into requisition for the last 100 years. The lord high steward is nominated by the chancellor of the university, and confirmed by the Lord Chancellor; he is only empowered to call any matter before him after an ordinary grand jury has found a true bill. A petty jury is composed of six graduates and six freeholders. * Crabb, 330. CHAPTER XI. THE HOUSE OF LORDS AS A COURT OF JURISDICTION. Origin of the Appellate Jurisdiction.-Advice of the Judges.-Difference between matters of Law and Equity.-All Peers a Right to Vote.-O'Connell's Prosecution. The Lord Chancellor the only Necessary Judge.-Jurisdiction over Peers. -Lord High Steward's Court. THE peers of the realm, when summoned to parliament, were the counsellors and coadjutors of the king in the functions of government; they redressed grievances, both private and public, and whatever their origin; they thus acquired a judicial and executive authority. At the commencement of every session petitions were presented to the Lords asking the redress of injuries and of the abuse of power. These petitions were generally referred to the court whence relief ordinarily was to be sought, the house itself seldom interfering except when a redress could not be obtained from the ordinary tribunal. Only one instance occurs between the 4 Hen. IV. and 43 Eliz. in which the house entered upon any petition in the nature of an original writ. The appellate jurisdiction of the House of Lords seems to have been as ancient as that which they exercised upon original petitions. During the 15th century, however, this jurisdiction seems to have fallen into disuse but about 1580, writs of error were entertained from the Court of Queen's Bench, and, at the present day, to the right of the House of Lords to determine in the last resort upon writs of error from the courts of common law, no objection could be sustained. The House of Lords, after much opposition, succeeded in establishing another branch of their ultimate jurisdiction, that of hearing appeals from the courts of equity. It would seem that the Lords did not entertain petitions of appeal before the reign of Charles I. From that time they became frequent, and although the House of Commons stoutly excepted to such jurisdiction, it is now placed beyond dispute.* The highest legal functionaries attend the sittings of the House of Lords when their advice is required. : At the beginning of every session, the judges in Westminster *Hallam's Const. Hist. 17-24. : receive a writ of summons, ad tractandum et consilium impendendum, but not ad consentiendum. The following are named in the commission the justices of the Queen's Bench and Common Pleas; such of the barons of the Exchequer as have the degree of the coif, the Master of the Rolls, and such of the serjeants as are queen's counsel. Requisition is no longer made to the secretaries of state, to the attorney and solicitor-general, as these functionaries generally have a seat in the commons. The personages invited sit on the woolsack by the side of the Lord Chancellor, but can neither sit nor vote in the house itself. The judges are asked for their advice. The House of Lords is the court of appeal for the three law courts at Westminster, for the Scottish and Irish courts since the union, and for the Court of Chancery. case. Every peer has the right to sit in the appeal court,† but only on two occasions have the "peers at large" voted; those who are not “law lords" usually withdrawing. An attempt of the peers at large to decide in the appeal court was made in the O'Connell Seven judges had given their opinion for the maintenance of the sentence, and two in the contrary sense. "Some of the peers, seeing the decision likely to go in favour of O'Connell, were eager to vote instead of leaving the matter, as was just and decorous in an intricate question of legality, to the law lords; but Lord Wharncliffe interposed to support the dignity of the house as a court of appeal, and induced the lay lords to retire without voting. The Earl of Verulam was the first who retired behind the woolsack, and all the lay lords present followed. Five peers remained; Lord Denman, Lord Cottenham, and Lord Campbell voted that the judgment of the court below should be reversed. Lord Brougham and the Chancellor voted the other way."‡ The presence of three judges renders the appeal court capable of sitting; no law lord is, however, bound to appear in the court; in reality, therefore, it is the Lord Chancellor who is the necessary judge of appeal; for it is a mere accident when other peers, not law lords, are actually present in the house. From the revolution of 1688 until Somers entered the House of Lords, no law lords ever sat in the first chamber.§ From 1818 to 1827 it was only Lord Chancellor Eldon who sat as law lord; he gave judg * Bowyer, 81. + Brougham, Const., 256. Miss Martineau, ii. 573. |