PRIVATE WRONGS.
BOOK III.

CHAPTER THE FIFTH.

OF COURTS ECCLESIASTICAL, MILITARY,
AND MARITIME.

BESIDES the feveral courts, which were treated of in the preceding chapter, and in which all injuries are redreffed, that fall under the cognizance of the common law of England, or that fpirit of equity which ought to be it's conftant attendant, there ftill remain fome other courts of a jurifdiction equally public and general: which take cognizance of other fpecies of injuries, of an ecclefiaftical, military, and maritime nature; and therefore are properly diftinguifhed by the title of ecclefiaftical courts, courts military, and courts maritime.

I. BEFORE I defcend to confider particular ecclefiaftical courts, I muft firft of all in general premife, that in the time of our Saxon anceftors there was no fort of diftinction between the lay and the ecclefiaftical jurifdiction: the county court was as much a fpiritual as a temporal tribunal: the rights of the church were afcertained and afferted at the fame time and by the fame judges as the rights of the laity. For this purpofe the bifhop of the diocefe, and the alderman, or in his abfence the fheriff of the county, ufed to fit together in the county court, and had there the cognizance of all caufes as well ecclefiaftical as civil: a fuperior deference being paid to the bifhop's opinion in fpiritual matters, and to that of the law judges in temporal ^a. This union of power was very advantageous to them both: the pre-

.{FS}
^a Celeberrimo huic conventui epifcopus et aldermannus interfunto; quorum alter jura divina, alter bamana populumedoceto. LL. Eadgar. c. 5.
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fence
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fence of the bifhop added weight and reverence to the fheriff's proceedings; and the authority of the fheriff was equally ufeful to the bifhop, by enforcing obedience to his decrees in fuch refractory offenders, as would otherwife have defpifed the thunder of mere ecclefiaftical cenfures.

BUT fo moderate and rational a plan was wholly inconfiftent with thofe views of ambition, that were then forming by the court of Rome. It foon became an eftablifhed maxim in the papal fyftem of policy, that all ecclefiaftical perfons and all ecclefiaftical caufes fhould be folely and entirely fubject to ecclefiaftical jurifdiction only: which jurifdiction was fuppofed to be lodged in the firft place and immediately in the pope, by divine indefeafible right and inveftiture from Chrift himfelf; and derived from the pope to all inferior tribunals. Hence the canon law lays it down as a rule, that “facerdotes a rigibus honorandi “funt, non judicandi ^b;” and places an emphatical reliance on a fabulous tale which it tells of the emperor Conftantine; that when fome petitions were brought to him, imploring the aid of his authority againft certain of his bifhops, accufed of oppreffion and injuftice, he caufed (fays the holy canon) the petitions to be burnt in their prefence, difmiffing them with this valediction; “ite, et inter vos caufas veftras difcutite, quia dignum non eft “ut non judicemus Deos ^c.

IT was not however till after the Norman conqueft, that this doctrine was received in England; when William I, (whofe title was warmly efpoufed by the monafteries which he liberally endowed, and by the foreign clergy, whom he brought over in fhoals from France and Italy and planted in the beft preferments of the Englifh church,) was at length prevailed upon to eftablifh this fatal encroachment, and feparate the ecclefiaftical court from the civil: whether actuated by principles of bigotry, or by thofe of a more refined policy, in order to difcountenance the laws of king Edward abounding with the fpirit of Saxon liberty, is not

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^b Decret. cauf. 11. qu. 1. c. 41.
^c Ibid.
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altogether
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altogether certain. But the latter, if not the caufe, was undoubted the confequence, of this feparation: for the Saxon laws were foon overborne by the Norman jufticiaries, when the county court fell into difregard by the bifhop's withdrawing his prefence, in obedience to the charter of the conqueror ^d; which prohibited any fpiritual caufe from being tried in the fecular courts, and commanded the fuitors to appear before the bifhop only, whofe decifions were directed to conform to the canon law ^e.

KING Henry the firft, at his acceffion, among other reftorations of the laws of king Edward the confeffor, revived this of the union of the civil and ecclefiaftical courts ^f. Which was, according to fir Edward Coke ^g, after the great heat of the conqueft was paft, only a reftitution of the antient law of England. This however was ill relifhed by the popifh clergy, who, under the guidance of that arrogant prelate archbifhop Anfelm, very early difapproved of a meafure that put them on a level with the profane laity, and fubjected fpiritual men and caufes to the infpection of the fecular magiftrates; and therefore in their fynod at Weftminfter, 3 Hen. I. they ordained that no bifhop fhould attend the difcuffion of temporal caufes ^h; which foon diffolved this newly effected union. And when, upon the death of king Henry the

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^d Hale. Hift. C. L. 102. Selden. in. Eadm. p. 6. l. 24. 4. Inft. 259. Wilk. LL. Angl. Sax. 292.
^e Nullus epifcopus vel archidiaconus de legibus epifcopolibus amplius in hundret placita teneant, nee caufam quae ad reglmen animarum pertinet ad judicium fecularium hominum adducant: fed quicunque fecundum epifcopales leges de quacunque caufa vel culpa interpellatus fuerit, ad locum quem ad hoc epifcopus elegerit et nominaverit, veniat; ilique de caufa fua refpondeat; et non fecundum bundret, fed fecundam canones et epifcopeles leges, rectum Deo et epifcopo fuo faciat.
^f Velo et praecipiio, ut omnes de comitatu cant ad comitatus et hundreda, ficut fecerint temport regis Edwardi. (Cort. Hen. l. in Spelm. cod. vet. Legum: 305.) And what is here obfcurely hinted at, is fully explained by his code of laws extant in the red book of the exchequer, though in general but of doubtful authority. cap. 8. Generalia comitatuum pla. cita certis locis et vicibus teneantur. Interfint autem epifcopi, comites, &c; et agantur primo debita verae chriftianitatis jura, fecundo regis placita, poftremo caufae fingulorum dignis fatisfactionibus expleantur.
^g 2 Inft. 70.
^h Ne epifcopi faecularium placitorum officium fufcipiant.” Spelm. Cod. 301.
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firft,
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firft, the ufurper Stephen was brought in an fupported by the clergy, we find one article of the oath which they impofed upon him was, that ecclefiaftical perfons and ecclefiaftical caufes fhould be fubject only to the bifhop's jurifdiction ⁱ. And as it was about this time that the conteft and emulation began between the laws of England and thofe of Rome ^k, the temporal courts adhering to the former, and the fpiritual adopting the latter as their rule of proceeding, this widened the breach between them, and made a coalition afterwards impracticable; which probably would elfe have been effected at the general reformation of the church.

IN briefly recounting the various fpecies of ecclefiaftical courts, or, as they are often ftiled, courts chriftian, (curiae chriftianitatis) I fhall begin with the loweft, and fo afcend gradually to the fupreme court of appeal ^l.

1. THE archdeacon's court is the moft inferior court in the whole ecclefiaftical polity. It is held in the archdeacon's abfence before a judge appointed by himfelf, and called his official; and it's jurifdiction is fometimes in concurrence with, fometimes in exclufion of, the bifhop's court of the diocefe. From hence however by ftatute 24 Hen. VIII. c. 12. there lies an appeal to that of the bifhop.

2. THE confiftory court of every diocefan bifhop is held in their feveral cathedrals for the trial of all ecclefiaftical caufes arifing within their refpective diocefes. The bifhop's chancellor, or his commiffary, is the judge, and from his fentence there lies an appeal, by virtue of the fame ftatute, to the archbifhop of each province refpectively.

3. THE court of arches is a court of appeal, belonging to the archbifhop of each province; whereof the judge is called

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^I Ibid. 310.
^k See vol. I. introd. §. 1.
^l For farther particulars fee Burn's ecclefiaftical law, Wood's inftitute of the common law, and Oughton's ordo judiciorum.
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the
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the dean of the arches; becaufe he antiently held his court in the church of St. Mary le bow (fancta Maria de arcubus) though all the principal fpiritual courts are now holden at doctors' commons. His proper jurifdiction is only over the thirteen peculiar parifhes belonging to the archbifhop in London; but the office of dean of the arches having been for a long time united with that of the archbifhop's principal official, he now, in right of the laft mentioned office, receives and determines appeals from the fentences of all inferior ecclefiaftical courts within the province. And from him there lies an appeal to the king in chancery (that is, to a court of delegates appointed under the king's great feal) by ftatute 25 Hen. VIII. c. 19. as fupreme head of the Englifh church, in the place of the bifhop of Rome, who formerly exercifed this jurifdiction; which circumftance alone will furnifh the reafon why the popifh clergy were fo anxious to feparate the fpiritual court from the temporal.

4. THE court of peculiars is a branch of and annexed to the court of arches. It has a jurifdiction over all thofe parifhes difperfed through the province of Canterbury in the midft of other diocefes, which are exempt from the ordinary's jurifdiction, and fubject to the metropolitan only. All ecclefiaftical caufes, arifing within thefe peculiar or exempt jurifdictions, are, originally, cognizable by this court; from which an appeal lay formerly to the pope, but now by the ftatute 25 Hen. VIII. c. 19. to the king in chancery.

5. THE prerogative court is eftablifhed for the trial of all teftamentary caufes, where the deceafed hath left bona notabilia within two different diocefes. In which cafe the probate of wills belongs, as we have formerly feen ^m, to the archbifhop of the province, by way of fpecial prerogative. And all caufes relating to the wills, adminiftrations, or legacies of fuch perfons are, originally, cognizable herein, before a judge appointed by the arch-bifhop, called the judge of the prerogative court; from

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^m Book II. ch. 32.
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VOL. III.

I

whom

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whom an appeal lies by ftatute 25 Hen. VIII. c. 19. to the king in chancery, inftead of the pope as formerly.

I PASS by fuch ecclefiaftical courts, as have only what is called a voluntary and not a contentious jurifdiction; which are merely concerned in doing or felling what no one oppofes, and which keep an open office for that purpofe, (as granting difpenfations, licences, faculties, and other remnants of the papal extortions) but do not concern themfelves with adminiftring redrefs to any injury: and fhall proceed to

6. THE great court of appeal in all ecclefiaftical caufes, viz. the court of delegates, judices delegati, appointed by the king's commiffion under his great feal, and iffuing out of chancery, to reprefent his royal perfon, and hear all appeals to him made by virtue of the before-mentioned ftatute of Henry VIII. This commiffion is ufually filled with lords fpiritual and temporal, judges of the courts at Weftminfter, and doctors for the civil law. Appeals to Rome were always looked upon by the Englifh nation, even in the times of popery, with an evil eye; as being contrary to the liberty of the fubject, the honour of the crown, and the independence of the whole realm: and were firft introduced in very turbulent times in the fixteenth year of king Stephen (A. D. 1151.) at the fame period (fir Henry Spelman obferves) that the civil and canon laws were firft imported into England ⁿ. But, in a few years after, to obviate this growing practice, the conftitutions made at Clarendon, 11 Hen. II. on account of the difturbances raifed by arch-bifhop Becket and other zealots of the holy fee, expreffly declare ^o, that appeals in caufes ecclefiaftical ought to lie, from the arch-deacon to the diocefan; from the diocefan too the arch-bifhop of the province; and from the arch-bifhop to the king; and are not to proceed any farther without fpecial licence from the crown. But the unhappy advantage that was given in the reigns of king John, and his fon Henry the third, to the encroaching power of the pope, who

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ⁿ Cod. vet. leg. 315.
^o chap. 8.
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was
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was ever vigilant to improve all opportunities of extending his jurifdiction hither, at length rivetted the cuftom of appealing to Rome in caufes ecclefiaftical fo ftrongly, that it never could be thoroughly broken off, till the grand rupture happened in the reign of Henry the eighth; when all the jurifdiction ufurped by the pope in matters ecclefiaftical was reftored to the crown, to which it originally belonged: fo that the ftatute 25 Hen. VIII. was but declaratory of the antient law of the realm ^p. But in cafe the king himfelf be party in any of thefe fuits, the appeal does not then lie to him in chancery, which would be abfurd; but by the ftatute 24 Hen. VIII. c. 12. to all the bifhops of the realm, affembled in the upper houfe of convocation.

7. A COMMISSION of review is a commiffion fometimes granted, in extraordinary cafes, to revife the fentence of the court of delegates; when it is apprehended they have been led into a material error. This commiffion the king may grant, although the ftatutes 24 & 25 Hen. VIII. before cited declare the fentence of the delegates definitive; becaufe the pope as fupreme head by the canon law ufed to grant fuch commiffion of review; and fuch authority, as the pope heretofore exerted, is now annexed to the crown ^q by ftatutes 26 Hen. VIII. c. 1. and 1 Eliz. c. 1. But it is not matter of right, which the fubject may demand ex debito juftitiae; but merely a matter a matter of favour, and which therefore is often denied.

THESE are now the principal courts of ecclefiaftical jurifdiction; none of which are allowed to be courts of record: no more than was another much more formidable jurifdiction, but now defervedly annihilated viz. the court of the king's high commiffion in caufes ecclefiaftical. This court was erected and united to the regal power ^r by virtue of the ftatute 1 Eliz. c. 1. inftead of a larger jurifdiction which had before been exercifed under the popes authority. It was intended to vindicate the

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^p 4 Inft. 341.
^q Ibid.
^r 4 Inft. 324.
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dignity
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dignity and peace of the church, by reforming, ordering, and correcting the ecclefiaftical ftate and perfons, and all manner of errors, herefies, fchifms, abufes, offences, contempts, and enormities. Under the fhelter of which very general words, means were found in that and the two fucceeding reigns, to veft in the high commiffioners extraordinary and almoft defpotic powers, of fining and imprifoning; which they exerted much beyond the degree of the offence itfelf, and frequently over offences by no means of fpiritual cognizance. For thefe reafons this court was juftly abolifhed by ftatute 16 Car. I. c. 11. And the weak and illegal attempt that was made to revive it, during the reign of king James the fecond, fervid only to haften that infatuated prince's ruin.

II. NEXT, as to the courts military. The only court of this kind known to, and eftablifhed by, the permanent laws of the land, is the court of chivalry, formerly held before the lord high conftable and earl marfhal of England jointly; but fince the attainder of Stafford duke of Buckingham under Henry VIII, and the confequent extinguifhment of the office of lord high conftable, it hath ufually with refpect to civil matters been held before the earl marfhal only ^s. This court by ftatute 13 Ric. II. c. 2. hath cognizance of contracts and other matters touching deeds of arms, and war, as well out of the realm as within it. And from it's fentences an appeal lies immediately to the king in perfon ^t. This court was in great reputation in the times of pure chivalry, and afterwards during our connexions with the continent, by the territories which our princes held in France; but is now grown almoft entirely out of ufe, on account of the feeblenefs of it's jurifdiction, and want of power to enforce it's judgments; as it can neither fine nor imprifon, not being a court of record ^u.

III. THE maritime courts, or fuch as have power and jurifdiction to determine all maritime injuries, arfing upon the feas,

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^s 1 Lev. 230. Show Parl. Caf. 60.
^t 4 Inft. 125.
^u 7 Mod. 127.
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or
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or in parts out of the reach of the common law, are only the court of admiralty, and it's courts of appeal. The court of admiralty is held before the lord high admiral of England, or his deputy, who is called the judge of the court. According to fir Henry Spelman ^w, and Lambard ^x, it was firft of all erected by king Edward the third. It's proceedings are according to the method of the civil law, like thofe of the ecclefiaftical courts; upon which account it is ufually held at the fame place with the fuperior ecclefiaftical courts, any more than the fpiritual courts. From the fentences of the admiralty judge an appeal always lay, in ordinary courfe, to the king in chancery, as may be collected from ftatute 25 Hen. VIII. c. 19. which directs the appeal from the arch-bifhop's courts to be determined by perfons named in the king's commiffion, “like as in cafe of appeal from the admiral-“court.” But this is alfo expreffly declared by ftatute 8 Eliz. c. 5. which enacts, that upon appeal made to the chancery, the fentence definitive of the delegates appointed by commiffion fhall be final.

APPEALS from the vice-admiralty courts in America, and our other plantations and fettlements, may be brought before the courts of admiralty in England, as being a branch of the admiral's jurifdiction, though they may alfo be brought before the king in council. But in cafe of prize veffels, taken in time of war, in any part of the world, and condemned in any courts of admiralty or vice-admiralty as lawful prize, the appeal lies to certain commiffioners of appeals confifting chiefly of the privy council, and not to judges delegates. And this by virtue of divers treaties with foreign nations; by which particular courts are eftablifhed in all the maritime countries of Europe for the decifion of this queftion, whether lawful prize or not: for this being a queftion between fubjects of different ftates, it belongs entirely to the law of nations, and not to the municipal laws of either country, to determine it. The original court, to which this question is

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^w Gloff 13.
^x Arciden. 41.
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permitted
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permitted in England, is the court of admiralty; and the court of appeal is in effect the king's privy council, the members of which are, in confequence of treaties, commiffioned under the great feal of this purpofe. In 1748, for the more fpeedy determination of appeals, the judges of the courts of Weftminfter-hall, though not privy counfellors, were added to the commiffion then in being. But doubts being conceived concerning the validity of that commiffion, on account of fuch addition, the fame was confirmed by ftatute 22 Geo. II. c. 3. with a provifo, that no fentence given under it fhould be valid, unlefs a majority of the commiffioners prefent were actually privy counfellors. But this did not, I apprehend, extend to any future commiffions: and fuch an addition became indeed wholly unneceffary in the courfe of the war which commenced in 1756; fince, during the whole of that war, the commiffion of appeals was regularly attended and all it's decifions conducted by a judge, whofe mafterly acquaintance with the law of nations was known and revered by every ftate in Europe ^y.

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^y See the fentiments of the prefident Montefquieu, and M. Vattel (a fubject of the king of Pruffia) on the anfwer tranfmitted by the Englifh court to his Pruffian majefty's Expofition desmotifs &c. A. D. 1753. (Montefquieu's letters. 5 Mar. 1753. Vattel's droit de gent. L. 2. c. 7. §. 84.)
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