Blackstone's Commentaries on the Laws of England
Book the Third - Chapter the Seventh : Of the Cognizance of Private Wrongs
PRIVATE WRONGS.
BOOK III.
CHAPTER THE SEVENTH.
OF THE COGNIZANCE OF PRIVATE
WRONGS.
WE are now to proceed to the cognizance of private wrongs; that is, to confider in which of the vaft variety of courts, mentioned in the three preceding chapters, every poffible injury that can be offered to a man's perfon or property is certain of meeting with redrefs.
THE authority of the feveral courts of private and fpecial jurifdiction, or of what wrongs fuch courts have cognizance, was neceffarily remarked as thofe refpective tribunals were enumerated; and therefore need not be here again repeated: which will confine our prefent enquiry to the cognizance of civil injuries in the feveral courts of public or general jurifdiction. And the order, in which I fhall purfue this enquiry, will be by fhewing; 1. What actions may be brought, or what injuries remedied, in the ecclefiaftical courts. 2. What in the military. 3. What in the maritime. And 4. What in the courts of common law.
AND, with regard to the three firft of thefe particulars, I muft beg leave not fo much to confider what hath at any time been claimed or pretended to belong to their jurifdiction, by the officers and judges of thofe refpective courts; but what the common law allows and permits to be fo. For thefe eccentrical tri-
bunals
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bunals (which are principally guided by the rules of the imperial and canon laws) as they fubfift and are admitted in England, not by any right of their own
a, but upon bare fufferance and toleration from the municipal laws, muft have recourfe to the laws of that country wherein they are thus adopted, to be informed how far their jurifdiction extends, or what caufes are permitted, and what forbidden, to be difcuffed or drawn in queftion before them. It matters not therefore what the pandects of Juftinian, or the decretals of Gregory have ordained. They are here of no more intrinfic authority than the laws of Solon and Lycurgus: curious perhaps for their antiquity, refpectable for their equity, and frequently of admirable ufe in illuftrating a point of hiftory. Nor is it at all material in what light other nations may confider this matter of jurifdiction. Every nation muft and will abide by it's own municipal laws; which various accidents confpire to render different in almoft every country in Europe. We permit fome king of fuits to be of ecclefiaftical cognizance, which other nations have referred entirely to the temporal courts; as concerning wills and fucceffions to inteftates' chattels: and perhaps we may, in our turn, prohibit them from interfering in fome controverfies, which on the continent may be looked upon as merely fpiritual. In fhort, the common law of England is the one uniform rule to determine the jurifdiction of courts: and, if any tribunals whatfoever attempt to exceed the limits fo prefcribed them, the king's courts of common law may and do prohibit them; and in fome cafes punifh their judges
b.
HAVING premifed this general caution, I proceed now to confider.
I. THE wrongs or injuries cognizable by the ecclefiaftical courts. I mean fuch as are offered to private perfons or individuals; which are cognizable by the ecclefiaftical court, not for reformation of the offender himfelf or party injuring (pro falute animae, as immoralities in general are, when unconnected with
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a See Vol. I. introd. §. 1.
b Hal. Hift. C. L. c. 2.
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private
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private injuries) but fuch as are there to be profecuted for the fake of the party injured, to make him a fatisfaction and redrefs for the damage which he has fuftained. And thefe I fhall reduce under three general heads; of caufes pecuniary, caufes matrimonial, and caufes teftamentary.
1. PECUNIARY caufes, cognizable in the ecclefiaftical courts, are fuch as arife either from the withholding ecclefiaftical dues, or the doing or neglecting fome act relating to the church, whereby fome damage accrues to the plaintiff; towards obtaining a fatisfaction for which he is permitted to inftitute a fuit in the fpiritual court.
THE principal of thefe is the fubtraction or withholding of tithes from the parfon or vicar, whether the former be a clergyman or a lay appropriator
c. But herein a diftinction muft be taken: for the ecclefiaftical courts have no jurifdiction to try the right of tithes unlefs between fpiritual perfons
d; but in ordinary cafes, between fpiritual men and lay men, are only to compel the payment of them, when the right is not difputed
e. By the ftatute or rather writ
f of circumfpecte agatis
g, it is declared that the court chriftian fhall not be prohibited from holding plea, “fi rector petat verfus parochianos oblations et decimas debitas et confuetas: fo that if any difpute arifes whether fuch tithes be due and accuftomed, this cannot be determined in the ecclefiaftical court, but before the king's courts of the common law; as fuch queftion affects the temporal inheritance, and the determination muft bind the real property. But where the right does not come into queftion, but only the fact, whether or no the tithes allowed to be due be really fubtracted or withdrawn, this is a tranfient perfonal injury, for which the remedy may properly be had in the fpiritual court; viz. the recovery of the tithes, or their equivalent. By teftaments 2 & 3 Edw. VI. c. 13. it is enacted, that
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c Stat. 32 Hen. VIII. c. 7.
d 2 Roll. Abr. 309, 310. Bro. Abr. t. juridiction. 83.
e 2 Inft. 364. 489, 490.
f See Barrington's obferv. 120.
g 13 Edw. I. ft. 4.
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if any perfon fhall carry off his praedial tithes (viz. of corn, hay, or the like) before the tenth part is duly fet forth, or agreement is made with the proprietor, or fhall willingly withdraw his tithes of the fame, or fhall ftop or hinder the proprietor of the tithes or his deputy from viewing or carrying them away; fuch offender fhall pay double the value of the tithes, with cofts, to be recovered before the ecclefiaftical judge, according to the king's ecclefiaftical laws. by a former claufe of the fame ftatute, the treble value of the tithes, fo fubtracted or withheld, may be fued for in the temporal courts, which is equivalent to the double value to be fued for in the ecclefiaftical. For one may fue for and recover in the ecclefiaftical courts the tithes themfelves, or a recompenfe for them, by the antient law; to which the fuit for the double value is fuperadded by the ftatute. But as no fuit law in the temporal courts for the fubtraction of tithes themfelves, therefore the ftatute gave a treble forfeiture, if fued for there; in order to make the courfe of juftice uniform, by giving the fame reparation in one court as in the other
h. However it now feldom happens that tithes are fued for at all in the fpiritual court; for if the defendant pleads any cuftom, modus, compofition, or other matter whereby the right of tithing is called in queftion, this takes it out of the jurifdiction of the ecclefiaftical judges: for the law will not fuffer the exiftence of fuch a right to be decided by the fentence of any fingle, much lefs an ecclefiaftical, judge; without the verdict of a jury. But a more fummary method than either of recovering fmall tithes under the value of 40
s. is given by ftatute 7 & 8 W. III. c. 6. by complaint to two juftices of the peace: and, by another ftatute of the fame year
j, the fame remedy is extended to all tithes withheld by quakers under the value of ten pounds.
ANOTHER pecuniary injury, cognizable in the fpiritual courts, is the non-payment of other ecclefiaftical dues to the clergy; as penafions, mortuaries, compofitions, offerings, and whatfoever falls under the denomination of furplice-fees, for marriages or
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h 2 Inft. 250. c. 34.
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other minifterial offices of the church: all which injuries are redreffed by a decree for their actual payment. Befides which all offerings, oblations, and obventions, not exceeding he value of 40
s. may be recovered in a fummary way, before two juftices of the peace
i. But care muft be taken that thefe are real and not imaginary dues; for, if they be contrary to the common law, a prohibition will iffue out of the temporal courts to ftop all fuits concerning them. As where a fee was demanded by the minifter of the parifh for the baptifm of a child, which was adminiftred in another place
k; this, however authorized by the canon, is contrary to common right: for of common right no fee is due to the minifter even for performing fuch branches of his duty, and it can only be fupported by a fpecial cuftom
l; but no cuftom can fupport the demand of a fee without performing them at all.
FOR fees alfo, fettled and acknowleged to be due to the officers of the ecclefiaftical courts, a fuit will lie therein: but not if the right of the fees is at all difputable; for then it muft be decided at the common law
m. It is alfo faid, that if a curate be licenced, and his falary appointed by the bifhop, and he be not paid, the curate hath a remedy in the ecclefiaftical court
n: but, if he be not licenced, or hath no fuch falary appointed, or hath made a fpecial agreement with the rector, he muft fue for a fatisfaction at common law
o; either by proving fuch fpecial agreement, or elfe by leaving it to a jury to give damages upon a quantum meruit, that is, in confideration of what he reafonably deferved in proportion to the fervice performed.
UNDER this head of pecuniary injuries may alfo be reduced the feveral matters of fpoliation, dilapidations, and neglect of repairing the church and things thereunto belonging; for which a fatisfaction may be fued for in the ecclefiaftical court.
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I Stat. 7 & 8 W. III. c. 6.
k Salk. 332.
l Ibid. 334. Lord Raym. 450. 1558. Fitzg. 55.
m 1 Ventr. 165.
n 1 Burn. eccl. law. 438.
o 1 Freem. 70.
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SPO-
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SPOLIATIONS in an injury done by one clerk or incumbent to another, in taking the fruits of his benefice without any right thereunto, but under a pretended title. It is remedied by a decree to account for the profits fo taken. This injury, when the jus patronatus or right of advowfon doth not come in debate, is cognizable in the fpiritual court: as if a patron firft prefents A to a benefice, who is inftituted and inducted thereto; and then, upon pretence of a vacancy, the fame patron prefents B to the fame living, and he alfo obtains inftitution and induction. Now if A difputes the fact of the vacancy, then that clerk who is kept out of the profits of the living, whichever it be, may fue the other in the fpiritual court for fpoliation, or taking the profits of his benefice. And it fhall there be tried, whether the living were, or were not, vacant; upon which the validity of the fecond clerk's pretenfions muft depend
p. But if the right of patronage comes at all into difpute, as if one patron prefented A, and another patron prefented B, there the ecclefiaftical court hath no cognizance, provided the tithes fued for amount to a fourth part of the value of the living, but may be prohibited at the inftance of the patron by the king's writ of indicavit
q. So alfo if a clerk, without any colour of title, ejects another from his parfonage, this injury muft be redreffed in the temporal courts: for it depends upon no queftion determinable by the fpiritual law, (as plurality of benefices or no plurality, vacancy or no vacancy) but is merely a civil injury.
For dilapidations, which are a kind of ecclefiaftical wafte, either voluntary, by pulling down; or permiffive, by fuffering the chancel, parfonage-houfe, and other buildings thereunto belonging, to decay; an action alfo lies, either in the fpiritual court by the canon law, or in the courts of common law
r: and it may be brought by the fucceffor againft the predeceffor, if living, or, if dead, then againft his executors. By ftatute 13 Eliz. c. 10.
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p F. N. 36.
q Circumfpecte agatis; 13 Edw. I. ft. 4. Artic. Cleri. 9. Edw.II. c. 2. F. N. B. 45.
rCart. 224. 3 Lev. 268.
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if any fpiritual perfon makes over or alienates his goods with intent to defeat his fucceffors of their remedy for dilapidations, the fucceffor fhall have fuch remedy againft the alienee, in the ecclefiaftical court, as if he were the executor of is predeceffor. And by ftatute 14 Eliz. c. 11. all money recovered for dilapidations fhall within two years be employed upon the buildings, in refpect whereof it was recovered, on penalty of forfeiting double the value to the crown.
AS to the neglect of reparations of the church, church-yard, and the like, the fpiritual court has undoubted cognizance thereof
s; and a fuit may be brought therein for non-payment of a rate made by the church-wardens for that purpofe, and thefe are the principal pecuniary injuries, which are cognizable, or for which fuits may be inftituted, in the ecclefiaftical courts.
2. MATRIMONIAL caufes, or injuries refpecting the rights of marriage, are another, and a much more undifturbed, branch of the ecclefiaftical jurifdiction. Though, if we confider marriage in the light of mere civil contracts, they do not feem to be properly of fpiritual cognizance
t. But the Romanifts having very early converted this contract into a holy facramental ordinance, the church of courfe took it under her protection, upon the divifion of the two jurifdictions. And, in the hands of fuch able politicians, it foon became an engine of great importance to the papal fcheme of an univerfal monarchy over Chriftendom. The numberlefs canonical impediments that were invented, and occafionally difpenfed with, by the holy fee, not only enriched the coffers of the church, but gave it a vaft afcendant over princes of all denominations; whofe marriage were fanctified or reprobated, their iffue legitimated or baftardized, and the fucceffion to their thrones eftablifhed or rendered precarious, according to the humour or intereft of the reigning pontiff: befides a thoufand nice and difficult fcruples, with which the clergy of thofe
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s Circumfpecte agatis; 13 Edw. I. ft. 4. 5 Rep. 66.
t Warb. alliance. 173.
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ages
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ages puzzled the underftandings and loaded the confciences of the inferior orders of the laity; and which could only be unravelled by thefe their fpiritual guides. Yet, abftracted from this univerfal influence, which affords fo good a reafon for their conduct, one might otherwife be led to wonder, that the fame authority, which enjoined the ftricteft celibacy to the priefthood, fhould think them the proper judges in caufes between man and wife. Thefe caufes indeed, partly from the nature of the injuries complained of, and partly from the clerical method of treating them,
v, foon became too grofs for the modefty of a lay tribunal. And caufes matrimonial are now fo peculiarly ecclefiaftical, that the temporal courts will never interfere in controverfies of this kind, unlefs in fome particular cafes. As if the fpiritual court do proceed to call a marriage in queftion after the death of either of the parties; this the courts of common law will prohibit, becaufe it tends to baftardize and difinherit the iffue; who cannot fo well defend the marriage, as the parties themfelves, when both of them living, might have done
u.
OF matrimonial caufes, one of the firft and principal is, 1. Caufa jactitationis matrimonii; when one of the parties boafts or gives out that he or fhe is married to the other, whereby a a common reputation of their matrimony may enfue. On this ground the party injured may libel the other in the fpiritual court; and, unlefs the defendant undertakes and makes out a proof of the actual marriage, he or fhe is enjoined perpetual filence upon that head; which is the only remedy the ecclefiaftical courts can give for this injury. 2. Another fpecies of matrimonial caufes was when a party contracted to another brought a fuit in the ecclefiaftical court to compel a celebration of the marriage in purfuance of fuch contract; but his branch of caufes is now cut off entirely by the act for preventing clandeftine marriages, 26 Geo II. c. 33. which enacts, that for the future no fuit fhall
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v Some of the impureft books, that are extant in any language, are thofe written by the popifh clergy on the fubjects matrimony and divorces.
u 2 Inft. 614.
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be had in any ecclefiaftical court, to compel a celebration of marriage in facie ecclefiae, for or becaufe of any contract of matrimony whatfoever. 3. The fuit for reftitution of conjugal rights is alfo another fpecies of matrimonial caufes: which is brought whenever either the hufband or wife is guilty of the injury of fubtraction, or lives feparate from the other without any fufficient reafon; in which cafe the ecclefiaftical jurifdiction will compel them to come together again, if either party be weak enough to defire it, contrary to the inclination of the other. 4. Divorces alfo, of which and their feveral diftinctions we treated at large in a former volume
w, are caufes thoroughly matrimonial, and cognizable by the ecclefiaftical judge. If it becomes improper, through fome fupervenient caufe arifing ex poft facto, that the parties fhould live together any longer; as through intolerable cruelty, adultery, a perpetual difeafe, and the like; this unfitnefs or inhability for the marriage ftate may be looked upon as an injury to the fuffering party; and for this the ecclefiaftical law adminifters the remedy of feparation, or a divorce a menfa et thoro. But if the caufe exifted previous to the marriage, and was fuch a one as rendered the marriage unlawful ab initio, as confanguinity, corporal imbecillity, or the like; in this cafe the law looks upon the marriage to have been always null and void, being contracted in fraudem legis, and decrees not only a feparation from bed and board, but a vinculo matrimonii itfelf. 5. The laft fpecies of matrimonial caufes is a confequence drawn from one of the fpecies of divorce, that a menfa et thoro; which is the fuit for alimony, a term which fignifies maintenance: which fuit the wife, in cafe of feparation, may have againft her hufband, if he neglects or refufes to make her an allowance fuitable to their ftation in life. This is an injury to the wife, and the court chriftian will redrefs it by affigning her a competent maintenance, and compelling the hufband by ecclefiaftical cenfures to pay it. But no alimony will be affigned in cafe of a divorce for adultery on her part; for as that amounts to a forfeiture of her dower af-
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w Book I. ch. 15.
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ter
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ter his death, it is alfo a fufficient reafon why fhe fhould not be partaker of his eftate when living.
3. TESTAMENTARY caufes are the only remaining fpecies, belonging to the ecclefiaftical jurifdiction; which, as they are certainly of a mere temporal nature
x, may feem at firft view a little oddly ranked among matters of a fpiritual cognizance. And indeed (as was in fome degree obferved in a former volume
y) they wer originally cognizable in the king's courts of common law, viz. the county courts
z; and afterwards transferred to the jurifdiction of the church by the favour of the crown, as a natural confequence of granting to the bifhops the adminiftration of inteftates effects.
THIS fpiritual jurifdiction of teftamentary caufes is a peculiar conftitution of this ifland; for in almoft all other (even in popifh) countries all matters teftamentary are of the jurifdiction of the civil magiftrate. And that this privilege is enjoyed by the clergy in England, not as a matter of ecclefiaftical right, but by the fpecial favour and indulgence of the municipal law, and as it fhould feem by fome public act of the great council, is freely acknowleged by Lindewode, the ableft canonift of the fifteenth century. Teftamentary caufes, he obferves, belong to the ecclefiaftical courts
“de confuetudine Angliae, et fuper confenfu regio et “fuorum procerum in talibus ab antiquo conceffo a.” The fame was, about a century before, very openly profeffed in a canon of archbifhop Stratford, viz. that adminiftration of inteftates goods was
“ab olim” granted to the ordinary,
“confenfu regio et magnatum “regni Angliae b.” The conftitutions of cardinal Othobon alfo teftify, that this provifion
“olim a praelatis cum approbatione regis “et baronum dicitur emanaffe c.”And arch-bifhop Parker
d, in queen Elizabeth's time, affirms in exprefs words, that originally in mat-
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x Warburt. alliance. 173.
y Book II. ch. 32.
z Hickes Differ. Epiftola. pag. 8. 58.
a Provincial. L. 3. t. 13. fol. 176.
b Ibid. l. 3. t. 38. fol. 263.
c cap. 23.
d See 9 Rep. 38.
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ters
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ters teftamentary
“non ullam habebant epifcopi authoritatem, praeter eam quam a rege acceptam referebant. Jus teftamenta probandi non habebant: adminiftrationis poteftatem cuique delegare “non poterant.”
At what period of time the ecclefiaftical jurifdiction of teftaments and inteftacies began in England, is not afcertained by any antient writer; and Lindewode
e very fairly confeffes, “cujus “regis temporibus hoc ordinatum fit, non reperio.” We find it indeed frequently afferted in our common law books, that it is but of late years that the church hath had the probate of wills
f. But this muft only be underftood to mean, that it had not always had this prerogative: for certainly it is of very high antiquity. Lindewode, we have feen, declares that it was “ab antiquo;” Stratford, in the reign of king Edward III, mentions it as “ab “olim ordinatum;” and cardinal Othobon, in the 52 Hen. III. fpeaks of it as an antient tradition. Bracton holds it for clear law in the fame reign of Henry III, that matters teftamentary belonged to the fpiritual court
g. And, yet earlier, the difpofition of inteftates' goods “per vifum ecclefiae” was one of the articles confirmed to the prelates by king John's magna carta
h. Matthew Paris alfo informs us, that king Richard I ordained in Normandy, “quod diftributio rerum quae in teftamento relinquuntur autoritate ecclefiac fiet.” And even this ordinance, of king Richard, was only an introduction of the fame law into his ducal dominions, which before prevailed in this kingdom: for in the reign of his father Henry II Glanvil is exprefs, that “fi quis aliquid dixerit “contra teftamentum, placitum illud in curia chriftianitatis audiri “debet et terminari
i.” And the Scots book called regiam majeftatem agrees verbatim with Glanvil in this point
k.
It appears that the foreign clergy were pretty early ambitious of this branch of power: but their attempts to affume it on the
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e fel. 263.
f Fitz. Abr. tit. teftament. pl. 4. 2. Roll. Abr. 217. 9 Rep. 37. Vaugh. 207.
g l. 5. de exceptionibus. c. 10.
h cap. 27. edit. Oxon.
I l. 7. c. 8.
k l. 2. c. 38.
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continent were effectually curbed by the edict of the emperor Juftin
l, which reftrained the infinuation or probate of teftaments (as formerly) to the office of the magifter cenfus: for which the emperor fubjoins this reafon; “abfur dum etenim clericis eft, immo etiam opprobriofum, fi peritos fe velint oftendere difceptationum effe “forenfium.” But afterwards by the canon law
m it was allowed, that the bifhop might compel by ecclefiaftical cenfures the performance of the bequeft to pious ufes. And therefore, that being confidered as a caufe quae fecundum canones et epifcopales leges ad regimen animarum perinuit, it fell within the jurifdiction of the fpiritual courts by the exprefs words of the charter of king William I, which feparated thofe courts from the temporal. And afterwards, when king Henry I by his coronation-charter directed, that the goods of an inteftate fhould be divided for the good of his foul
n, this made all inteftacies immediately fpiritual caufes, as much as a legacy to pious ufes had been before. This therefore, we may probably conjecture, was the aera referred to by Stratford and Othobon, when the king by the advice of the prelates, and with the confent of his barons, invefted the church with this privilege. And accordingly in king Stephen's charter it is provided, that the goods of an inteftate ecclefiaftic fhall be diftributed pro falute animae ejus, ecclefiae confilio
o; which latter words are equivalent to per vifum ecclefiae in the great charter of king John before-mentioned. And the Danes and Swedes (who received the rudiments of chriftianity and ecclefiaftical difcipline from England about the beginning of the twelfth century) have thence alfo adopted the fpiritual cognizance of inteftacies, teftaments, and legacies
p.
THIS jurifdiction, we have feen, is principally exercifed with us in the confiftory courts of every diocefan bifhop, and in the
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l Cod. 1. 3. 41.
m Deeretal. 3. 26. 17. Gilb. Rep. 204, 205.
n St quis baronumfeu hominum meorum __ pecuniam fuam non dederit vel dare difpofuerit, nor fua, five liberi, aut parentes et legitimi bonines ejus, eam proanima c.u. d'vidant. Feus eis melius vifan fucrii. (Text Roffens. c. 34. p. 51.)
o Lord Lyttelt. Hen. II. vol. 1. 536. Hearne ad Gul. Neubr. 711.
p Stiernhook, de jure Syeon l. 3. c. 3.???
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prerogative court of the metropolitan, originally; and in the arches court and court of delegates by way of appeal. It is divifible into three branches; the probate of wills, the granting of adminiftrations, and the fuing for legacies. The two former of which, when no oppofition is made, are granted merely ex officio et debito juftitiae, and are then the object of what is called the voluntary, and not the contentious jurifdiction. But when a caveal is entered againft proving the will, or granting adminiftration, and a fuit thereupon follows to determine either the validity of the teftament, or who hath a right to the adminiftration; this claim and obftruction by the adverfe party are an injury to the party entitled, and as fuch are remedied by the fentence of the fpiritual court, either by eftablifhing the will or granting the adminiftration. Subtraction, the withholding or detaining, of legacies is alfo ftill more apparently injurious, by depriving the legatees of that right, with which the laws of the land, and the will of the deceafed have invefted them: and therefore, as a confequential part of teftamentary jurifdiction, the fpiritual court adminifters redrefs herein, by compelling the executor to pay them. But in this laft cafe the courts of equity exercife a concurrent jurifdiction with the ecclefiaftical courts, as incident to fome other fpecies of relief prayed by the complainant; as to compel the executor to account for the teftator's effects, or affent to the legacy, or the like. For, as it is beneath the dignity of the king's courts to be merely ancillary to other inferior jurifdiction, the caufe, when once brought there, receives there alfo its full determination.
THESE are the principal injuries, for which the party grieved either muft, or may, feek his remedy in the fpiritual courts. but before I entirely difmifs this head, it may not be improper to add a fhort word concerning the method of proceeding in thefe tribunals, with regard to the redrefs of injuries.
IT muft (in the firft place) be acknowleged, to the honour of the fpiritual courts, that though they continue to this day to de-
cide
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cide many queftions which are properly of temporal cognizance, yet juftice is in general fo ably and impartially adminiftred in thofe tribunals, (efpecially of the fuperior kind) and the boundaries of their power are now fo well known and eftablifhed, that no material inconvenience at prefent arifes from this jurifdiction ftill continuing in the antient chanel. And, fhould an alteration be attempted, great confufion would probably arife, in overturning long eftablifhed forms, and new-modelling a courfe of proceedings that has now prevailed for feven centuries.
THE eftablifhment of the civil law procefs in all the ecclefiaftical courts was indeed a mafterpiece of papal difcernment, as it made a coalition impracticable between them and the national tribunals, without manifeft inconvenience and hazard. And this confideration had undoubtedly it's weight in caufing this meafure to be adopted, though many other caufes concurred. The time when the pandects of Juftinian were difcovered afrefh and refcued from the duft of antiquity, the eagernefs with which they were ftudied by the popifh ecclefiaftical, and the confequent diffenfions between the clergy and the laity of England, have formerly
q been fpoken to at large. I fhall only now remark upon thofe collections, that their being written in the Latin tongue, and referring fo much to the will of the prince and his delegated officers of juftice, fufficiently recommended them to the court of Rome, exclufive of their intrinfic merit. To keep the laity in the darkeft ignorance, and to monopolize the little fcience, which then exifted, entirely among the monkifh clergy, were deep-rooted principles of papal policy. And, as the bifhops of Rome affected in all points to mimic the imperial grandeur, as the fpiritual prerogatives were moulded on the pattern of the temporal, fo the canon law procefs was formed on the model of the civil law: the prelates embracing with the utmoft ardor a method of judicial proceedings, which was carried on in a language unknown to the bulk of the people, which banifhed the intervention
.{FS}
q Vol. I. introd. §. 1.
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N 2
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of a jury (that bulwark of Gothic liberty) and which placed an arbitrary power of decifion in the breaft of a fingle man.
THE proceedings in the ecclefiaftical courts are therefore regulated according to he practice of the civil and canon laws; or rather according to a mixture of both, corrected and new-modelled by their own particular ufages, and the interpofition of the courts of common law. For, if the proceedings in the fpiritual court be never fo regularly confonant to the rules of the Roman law, yet if they be manifeftly repugnant to the fundamental maxims of the municipal laws, to which upon principles of found policy the ecclefiaftical procefs ought in every ftate to conform
r; (as if they require two witneffes to prove a fact, where one will fuffice at common law) in fuch cafes a prohibition will be awarded againft them
s. But, under thefe reftrictions, their ordinary courfe of proceeding is; firft, by citation, to call the party injuring before them. Then by libel, libellus, a little book, or by articles drawn out in a formal allegation, to fet forth the complainant's ground of complaint. To this fucceeds the defendant's anfwer upon oath; when, if he denies or extenuates the charge, they proceed to proofs by witneffes examined, and their depofitions taken down in writing, by an officer of the court. If he defendant has any circumftances to offer in his defence, he muft alfo propound them in what is called his defenfive allegation, to which he is entitled in his turn to the plaintiff's anfwer upon oath, and may from thence proceed to proofs as well as his antagonift. The canonical doctrine of purgation, whereby the parties were obliged to anfwer upon oath to any matter, however criminal, that might be objected againft them, (though long ago overruled in the court of chancery, the genius of the Englifh law having broken through the bondage impofed on it by it's clerical chancellors, and afferted the doctrines of judicial as well as civil liberty) continued till the middle of the laft century to be upheld by the fpiritual courts; when the legiflature was obliged to interpofe, to teach them a leffon of fimilar moderation. By the
.{FS}
r Warb. alliance. 179.
s 2 Roll. Abr. 300. 302.
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ftatute
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ftatute of 13 Car. II. c. 12. it is enacted, that it fhall not be lawful for any bifhop, or ecclefiaftical judge, to tender or adminifter to any perfon whatfoever, the oath ufually called the oath ex officio, or any other oath whereby he may be compelled to confefs, accufe, or purge himfelf of any criminal matter or thing, whereby he may be liable to any cenfure or punifhment. When all the pleadings and proofs are concluded, they are referred to the confideration, not of a jury, but of a fingle judge; who takes information by hearing advocates on both fides, and thereupon forms his interlocutory decree or definitive fentence at his own difcretion: from which there generally lies an appeal, in the feveral ftages mentioned in a former chapter
t; though, if the fame be not appealed from in fifteen days, it is final, by the ftatute 25 Hen. VIII. c. 19.
BUT the point in which thefe jurifdictions are the moft defective, is that of enforcing their fentences when pronounced; for which they have no other procefs, but that of excommunication: which is defcribed
u to be twofold; the lefs, and the greater excommunication. The lefs is an ecclefiaftical cenfure, excluding the party from the participation of the facraments: the greater proceeds farther, and excludes him not only from thefe but alfo from the company of all chriftians. But, if the judge of any fpiritual court excommunicates a man for a caufe of which he hath not the legal cognizance, the party may have an action againft him at common law, and he is alfo liable to be indicted at the fuit of the king
w.
HEAVY as the penalty of excommunication is, confidered in a ferious light, there are, notwithftanding, many obftinate or profligate men, who would defpife the brutum fulmen of mere ecclefiaftical cenfures, efpecially when pronounced by a petty furrogate in the country, for railing or contumelious words, for non-payment of fees, or cofts, or for other trivial caufe. The common law therefore compaffionately fteps in to
.{FS}
t chap. 5.
u Co. Litt. 133.
w 2 Inft. 623.
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their aid, and kindly lends a fupporting hand to an otherwife tottering authority. Imitating herein the policy of our Britifh anceftors, among whom, according to Caefar
x, whoever were interdicted by the Druids from their facrifices,
“in numero impiorum archbifhop fceleratorum habentur: ab iis omnes decedunt, adytum “eorum fermonemque defugiunt, ne quid ex contagione incommodi accipiant: neque iis petentibus jus redditur, neque honos ullu communicatur.” And fo with us by the common law an excommunicated perfon is difabled to do any act, that is required to be done by one that is
probus et legalis homo. He cannot ferve upon juries, cannot be a witnefs in any court, and, which is the worft of all, cannot bring an action, either real or perfonal, to recover lands or money due to him
y. Nor is this the whole: for if, within forty days after the fentence has been publifhed in the church, the offender does not fubmit and abide by the fentence of the fpiritual court, the bifhop may certify fuch contempt to the king in chancery. Upon which there iffues out a writ to the fheriff of the county, called, from the bifhop's certificate, a
fignificavit; or from it's effect a writ de
excommunicato capiendo: and the fheriff fhall thereupon take the offender, and imprifon him in the county gaol, till he is reconciled to the church, and fuch reconciliation certified by the bifhop; upon which another writ, de excommunicato deliberando, iffues out of chancery to deliver and releafe him
z. This procefs feems founded on the charter of feparation (fo often referred to) of William the conqueror.
“Si “aliquis per fuperbiam elatus ad juftitiam epifcopalem venire noluerit, “cocetur femal, fecundo, et tertio: quod fi nec fic ad emendationem “venerit, excommunicetur; et, fi opus fuerit, ad hoc vindicandum “fortitudo et juftitia regis five vicecomitis adhibeatur.” And in cafe of fubtraction of tithes, a more fummary and expeditious affiftance is given by the ftatutes of 27 Hen. VIII. c. 20. and 32 Hen. VIII. c. 7. which enact, that upon complaint of any contempt or mifbehaviour to the ecclefiaftical judge by the defendant in any fuit for tithes, any privy counfellor or any two juftices of the peace (or
.{FS}
x de bello Gall. l. 6.
y Litt. §. 201.
z F. N. B. 62.
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in
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in cafe of difobedience to a definitive fentence, any two juftices of the peace) may commit the party to prifon without bail or mainprize, till he enters into a recognizance with fufficient fureties to give due obedience to the procefs and fentence of the court. Thefe timely aids, which the common and ftatute law have lent to the ecclefiaftical jurifdiction, may ferve to refute that groundlefs notion which fome are too apt to entertain, that the courts of Weftminfter-hall are at open variance with thofe at doctors' commons. It is true that they are fometimes obliged to ufe a parental authority, in correcting the exceffes of thefe of thefe inferior courts, and keeping them within their legal bounds; but, on the other hand, they afford them a parental affiftance, in repreffing the infolence of contumacious delinquents, and refcuing their jurifdiction from the contempt, which for want of fufficient compulfive powers would otherwife be fure to attend it.
II. I AM next to confider the injuries cognizable in the court military, or court of chivalry. The jurifdiction of which is declared by ftatute 13 Ric. II. c. 2. to be this; “that it hath cognizance of contracts touching deeds of arms and of war, out “of the realm, and alfo of things which tough war within the “realm, which cannot be determined or difcuffed by the common law; together with other ufages and cuftoms to the fame “matters appertaining.” So that wherever the common law can give redrefs, this court hath no jurifdiction: which has thrown it entirely out of ufe as to the matter of contracts, all fuch being ufually cognizable in the courts of Weftminfter-hall, if not directly, at leaft by fiction of law: as if a contract be made at Gibraltar, the plaintiff may fuppofe it made at Northampton; for the locality, or place of making it, is of no confequence with regard to the validity of the contract.
THE words, “other ufages and cuftoms,” fupport the claim of this court, 1. To give relief to fuch of the nobility and gentry as thing themfelves aggrieved in matters of honour; and 2. To keep up the diftinction of degrees and quality. Whence
it
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It follows, that the civil jurifdiction of this court of chivalry is principally in two points; the redreffing injuries of honour, and correcting encroachments in matters of coat-armour, precedency, and other diftinctions of families.
AS a court of honour, it is to give fatisfaction to all fuch as are aggrieved in that point; a point of a nature fo nice and delicate, that it's wrongs and injuries efcape the notice of the common law, and yet are fit to be redreffed fomewhere. Such, for inftance, as calling a man coward, or giving him the lye; for which, as they are productive of no immediate damage to his perfon or property, no action will lie in the courts at Weftminfter: and yet they are fuch injuries as will prompt every man of fpirit to demand fome honourable amends, which by the antient law of the land was appointed to be given in the court of chivalry
a. But modern refolutions have determined, that how much foever fuch a jurifdiction may be expedient, yet no action for words will at prefent lie therein
b. And it hath always been moft clearly holden
c, that as this court cannot meddle with any thing determinable by the common law, it therefore can give no pecuniary fatisfaction or damages; inafmuch as the quantity and determination thereof is ever of common law cognizance. And therefore this court of chivalry can at moft order reparation in point of honour; as, to compel the defendant mendacium fibi ipfi imponere, or to take the lie that he has given upon himfelf, or to make fuch other fubmiffion as the laws of honour may require
d. Neither can this court, as to the point of reparation in honour, hold plea of any fuch word, or thing, wherein they party is relievable by the courts of the common law. As if a man gives another a blow, or calls him thief or murderer; for in both thefe cafes the common law has pointed out his proper remedy by action.
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a Year book, 37 Hen. VI. 21. Selden of duels, c. 10. Hal. Hift. C. L. 37.
b Salk. 533. 7 Mod. 125. 2 Hawk. P. C. 11.
cHal. Hift. C. L. 37.
d 1 Roll. Abr. 128.
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AS
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AS to the other point of it's civil jurifdiction, the redreffing of incroachments and ufurpations in matters of heraldy and coat-armour; it is the bufinefs of this court, according to fir Matthew Hale, to adjuft the right of armorial enfigns, bearings, crefts, fupporters, pennons, &c; and alfo rights of place or precedence, where the king's patent or act of parliament (which cannot be overruled by this court) have not already determined it.
THE proceedings in this court are by petition, in a fummary way; and the trial not by a jury of twelve men, but by witneffes, or by combat
e. But as it cannot imprifon, not being a court of record, and as by the refolution of the fuperior courts it is now confined to fo narrow and reftrained a jurifdiction, it has fallen into contempt and difufe. The marfhalling of coatarmour, which was formerly the pride and ftudy of all the beft families in the kingdom, is now greatly difregarded; and has fallen into the hands of certain officers and attendants upon this court, called heralds, who confider it only as a matter of lucre and not of juftice: whereby fuch falfity and confufion has crept into their records, (which ought to be the ftanding evidence of families, defcents, and coat-armour) that, though formerly fome credit has been paid to their teftimony, now even their common feal will not be received as evidence in any court of juftice in the kingdom
f. But their original vifitation-books, compiled when progreffes were folemnly and regularly made into every part of the kingdom, to enquire into the ftate of families, and to regifter fuch marriages and defcents as were verified to them upon oath, are allowed to be good evidence of pedigrees
g. And it is much to be wifhed, that this practice of vifitations at certain periods were revived; for the failure of inquifitions poft mortem, by the abolition of military tenures, combined with the negligence of the heralds in omitting their ufual progreffes, has rendered the proof of a modern defcent, for the recovery of an ef-
.{FS}
e Co. Litt. 261.
f 2 Roll. Abr. 686. 2 Jon. 224.
g Comb. 63.
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tate or fucceffion to a title of honour, more difficult than that of an antient. This will be indeed remedied for the future, with refpect to claims of peerage, by a late ftanding order
h of the houfe of lords: directing the heralds to take exact accounts and their refpective defcendants; and that an exact pedigree of each peer and his family fhall, on the day of his firft admiffion, be delivered to the houfe by garter, the principal king at arms. But the general inconvenience, affecting more private fucceffions, ftill continues without a remedy.
III. INJURIES cognizable by the courts maritime, or admiralty courts, are the next object of our enquiries. Thefe courts have jurifdiction and power to try and determine all maritime caufes, or fuch injuries, which, though they are in their nature of common law cognizance, yet being committed on the high feas, out of the reach of our ordinary courts of juftice, are therefore to be remedied in a peculiar court of their own. All admiralty caufes muft be therefore caufes arifing wholly upon the fea, and not within the precincts of any county
j. For the ftatute 13 Ric. II. c. 5. directs that the admiral and his deputy fhall not meddle with any thing, but only things done upon the fea; and the ftatute 15 Ric. II. c. 3. declares that the court of the admiral hath no manner of cognizance of any contract, or of any other thing, done within the body of any county, either by land or by water; nor of any wreck of the fea; for that muft be caft on land before it becomes a wreck
i. But it is otherwife of things ftotfam, jetfam, and ligan; for over them the admiral hath jurifdiction, as they are in and upon the fea
k. If part of any contract, or other caufe of action, doth arife upon the fea, and part upon the land, the common law excludes the admiralty court from it's jurifdiction; for, part belonging properly to one cognizance and part to another, the common or general law takes place of the particular
l. Therefore though pure maritime a acqui-
.{FS}
h 11 May. 1767.
I Co. Litt. 260. Hob. 79.
l See book I. ch. 8.
k t Rep. 106.
l Co. Litt. 261.
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fitions, which are earned and become due on the high feas, as feamen's wages, are one proper object of the admiralty jurifdiction, even though the contract for them be made upon land
m; yet, in general if there be a contract made in England and to be executed upon the feas, as a charterparty or covenant that a fhip fhall fail to Jamaica, or fhall be in fuch a latitude by fuch a day; or a contract made upon the fea to be performed in England, as a bond made on fhipboard to pay money in London or the like; thefe kind of mixed contracts belong not to the admiralty jurifdiction, but to the courts of common law
n. And indeed it hath been farther holden, that the admiralty court cannot hold plea of any contract under feal
o.
AND alfo, as the courts of common law have obtained a concurrent jurifdiction with the court of chivalry with regard to foreign contracts, by fuppofing them made in England; fo it is no uncommon thing for a plaintiff to feign that a contract, really made at fea, was made at the royal exchange, or other inland place, in order to draw the cognizance of the fuit from the courts of admiralty to thofe of Weftminfter-hall
p. This the civilians exclaim againft loudly, as inequitable and abfurd; and fir Thomas Ridley
q hath very gravely proved it to be impoffible, for the fhip in which fuch caufe of action arifes to be really at the royal exchange in Cornhill. But our lawyers juftify this fiction, by alleging as before, that the locality of fuch contracts is not at all effential to the merits of them: and that learned civilian himfelf feems to have forgotten how much fuch fictions are adopted and encouraged in the Roman law: that a fon killed in battle is fuppofed to live for ever for the benefit of his parent
r; and that, by the fiction of poftliminium and the lex cornelia, captives, when freed from bondage, were held to have never been prifoners
s, and fuch as died in captivity were fuppofed to have died in their own country
t.
.{FS}
m 1 Ventr. 146.
n Hob. 12. Hal Hift. C. L. 35.
o Hob. 212.
p 4 Inft. 134.
q View of the civil law, b. 3. p. 1. §. 3.
r Inft. 1. tit. 25.
s Ff. 49. 13. 12. §. 6.
t Ff. 49. 15. 18.
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O 2
WHERE
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WHERE the admiral's court hath not original jurifdiction of the caufe, though there fhould arife in it a queftion that is proper for the cognizance of that court, yet that doth not alter nor take away the exclufive jurifdiction of the common law
v. And fo, vice verfa, if it hath jurifdiction of the original, it hath alfo jurifdiction of all confequential queftions, though properly determinable at common law
u. Wherefore, among other reafons, a fuit for beaconage of a beacon ftanding on a rock in the fea may be brought in the court of admiralty, the admiral having an original jurifdiction over beacons
w. In cafe of prizes alfo in time of war, between our own nation and another, or between two other nations, which are taken at fea, and brought into our ports, the courts of admiralty have an undifturbed and exclufive jurifdiction to determine the fame according to the law of nations
x.
THE proceedings of the courts of admiralty bear much refemblance to thofe of the civil law, but are not entirely founded thereon; and they likewife adopt and make ufe of other laws, as occafion requires; fuch as the Rhodian law, and the laws of Oleron
y. For the law of England, as has frequently been obferved, doth not acknowleged or pay any deference to the civil law confidered as fuch; but merely permits it's ufe in fuch cafes where it judged it's determinations equitable, and therefore blends it, in the prefent inftance, with other marine laws: the whole being corrected, altered, and amended by acts of parliament and common ufage; fo that out of this compofition a body of jurifprudence is extracted, which owes it's authority only to it's reception here by confent of the crown and people. The firft procefs in thefe courts is frequently by arreft of the defendant's perfon
z; and they alfo take recognizances or ftipulation of certain fidejuffors in the nature of bail
a, and in cafe of default may
.{FS}
r Comb. 462.
u 13 Rep. 53. 2 Lev. 25. Hardr. 183.
w 1 Siid. 158.
x 2 Show. 232. Comb. 474.
y Hale. Hift. C. L. 36. Co. Litt. 11.
z Clerke prax. Cur. adm. §. 13.
a Ibid. §. 11. 1 Roll. Abr. 531. Raym. 78. Lord Raym. 1286.
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imprifon both them and their principal
b. They may alfo fine and imprifon for a contempt in the face of the court
c. And all this is fupported by immemorial ufage, grounded on the neceffity of fupporting a jurifdiction fo extenfive
d; though oppofite to the ufual doctrines of the common law: thefe being no courts of record, becaufe in general their procefs in much conformed to that of the civil law
e.
IV. I AM next to confider fuch injuries as are cognizable by the courts of the common law. And herein I fhall for the prefent only remark, that all poffible injuries whatfoever, that did not fall within the cognizance of either the ecclefiaftical, military, or maritime tribunals, are for that very reafon within the cognizance of the common law courts of juftice. For it is a fettled and invariable principle in the laws of England, that every right when with-held muft have a remedy, and every injury it's proper redrefs. The definition and explication of thefe numerous injuries, and their refpective legal remedies, will employ our attention for many fubfequent chapters. But, before we conclude the prefent, I fhall juft mention two fpecies of injuries, which will properly fall now within our immediate confideration; and which are, either when juftice is delayed by an inferior court that has proper cognizance of the caufe; or, when fuch inferior court takes upon itfelf to examine a caufe and decide the merits without any legal authority.
1. THE firft of thefe injuries, refufal or neglect of juftice, is remedied either by writ of procedendo, or of mandamus. A writ of procedendo ad judicium, iffues out of the court of chancery, where judges of any court do delay the parties; for that they will not give judgment, either on the one fide or on the other, when they ought fo to do. In this cafe a writ of procedendo fhall be awarded, commanding them in the king's name to proceed to judgment; but without fpecifying any particular judgment, for
.{FS}
b 1 Roll. Abr. 531. Godb. 193. 260.
c 1 Ventr. 1.
d 1 Keb. 552.
e Bro. Abr. t. error. 177.
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that
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that (if erroneous) may be fet afide in the courfe of appeal, or by writ of error or falfe judgment: and, upon farther neglect or refufal, the judges of the inferior court may be punifhed for their contempt, by writ of attachment returnable in the king's bench or common pleas
t.
A WRIT of mandamus is, in general, a command iffuing in the king's name from the court of king's bench, and directed to any perfon, corporation, or inferior court of judicature, within the king's dominions; requiring them to do fome particular thing therein fpecified, which appertains to their office and duty, and which the court of king's bench has previoufly determined, or at leaft fuppofes, to be confonant to right and juftice. It is a high prerogative writ, of a moft extenfively remedial nature: and may be iffued in fome cafes where the injured party has alfo another more tedious method of redrefs, as in the cafe of admiffion or reftitution to an office; but it iffues in all cafes where the party hath a right to have anything done, and hath no other fpecific means of compelling it's performance. A mandamus therefore lies to compel the admiffion or reftoration of the party applying, to any office or franchife of a public nature whether fpiritual or temporal; to academical degrees; to the ufe of a meeting-houfe; &c: it lies for the production, infpection, or delivery, of public books and papers; for the furrender of the regalia of a corporation; to oblige bodies corporate to affix their common feal; to compel the holding of a court; and for an infinite number of other purpofes, which it is impoffible to recite minutely. But at prefent we are more particularly to remark, that it iffues to the judges of any inferior court, commanding them to do juftice according to the powers of their office, whenever the fame is delayed. For it is the peculiar bufinefs of the court of king's bench, to fuperintend all other inferior tribunals, and therein to inforce the due exercife of thofe judicial or minifterial powers, with which the crown or legiflature have invefted them: and this, not only by reftraining their exceffes, but alfo by quickening their neg-
.{FS}
f F. N. B. 153, 154. 240.
.{FE}
ligence,
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ligence, and obviating their denial of juftice. A mandamus may therefore be had to the courts of the city of London, to enter up judgment
g; to the fpiritual courts to grant an adminiftration, to fwear a church-warden, and the like. This writ is grounded on a fuggeftion, by the oath of the party injured, of his own right, and the denial of juftice below: whereupon, in order more fully to fatisfy the court that there is a probable ground for fuch interpofition, a rule is made (except in fome general cafes, where the probable ground is manifeft) directing the party complained of to fhew caufe why a writ of mandamus fhould not iffue: and, if he fhews no fufficient caufe, the writ itfelf is iffued, at firft in the alternative, either to do thus, or fignify fome reafon too the contrary; to which a return, or anfwer, muft be made at a certain day. And, if the inferior judge, or other perfon to whom the writ is directed, returns or fignifies an infufficient reafon, then thee iffues in the fecond place a peremptory mandamus, to do the thing abfolutely; to which no other return will be admitted, but a certificate of perfect obedience and due execution of the writ. If the inferior judge or other perfon makes no return, or fails in his refpect and obedience, he is punifhable for his contempt by attachment. But, if he, at the firft, returns a fufficient caufe, although it fhould be falfe in fact, the court of king's bench will not try the truth of the fact upon affidavits; but will for the prefent believe him, and proceed no farther on the mandamus. But then the party injured may have an action againft him for his falfe return, and (if found to be falfe by the jury) fhall recover damages equivalent to the injury fuftained; together with a peremptroy mandamus to the defendant to do his duty. Thus much for the injury of neglect or refufal of juftice.
2. THE other injury, which is that of encroachment of jurifdiction, or calling one coram non judice, to anfwer in a court that has no legal cognizance of the caufe, is alfo grievance, for which the common law has provided a remedy by the writ of prohibition.
.{FS}
g Raym. 214.
.{FE}
A PRO-
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A PROHIBITION is a writ iffuing properly only out of the court of king's bench, being the king's prerogative writ; but, for the furtherance of juftice, it may now alfo be had in fome cafes, out of the court of chancery
h, common pleas
I, or exchequer
k; directed to the judge and parties of a fuit in any inferior court, commanding them to ceafe from the profecution thereof, upon a fuggeftion that either the caufe originally, or fome collateral matter arifing therein, does not belong to that jurifdiction, but to the cognizance of fome other court. This writ may iffue either to inferior courts of common law; as, to the courts of the counties palatine or principality of Wales, if they hold plea of land or other matters not lying within their refpective franchifes
l; to the county courts or courts-baron, where they attempt to hold plea of any matter of the value of forty fhillings
m: or it may be directed to the courts chriftian, the univerfity courts, the court of chivalry, or the court of admiralty, where they concern themfelves with any matter not within their jurifdiction; as if the firft fhould attempt to try the validity of a cuftom pleaded, or the latter a contract made or to be executed within this kingdom. Or if, in handling of matters clearly within their cognizance, they tranfgrefs the bounds prefcribed to them by the laws of England; as where they require two witneffes to prove the payment of a legacy, a releafe of tithes
n, or the like; in fuch cafes alfo a prohibition will be awarded. For, as the fact of figning a releafe, or of actual payment, is not properly a fpiritual queftion, but only allowed to be decided in thofe courts, becaufe incident or acceffory to fome original queftion clearly within their jurifdiction; it ought therefore, where the two laws differ, to be decided not according too the fpiritual, but the temporal law; elfe the fame queftion might be determined different ways, according to the court in which the fuit is depending: an impropriety, which no wife government can or ought to endure,
.{FS}
h 1 P. W
ms. 476.
I Hob. 15.
k Palmer. 523.
l Lord Rayn. 1408.
m Finch. L. 451.
n Cro. Eliz. 666. Hob. 188.
.{FE}
and
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Ch. 7.
and which is therefore a ground of prohibition. And, if either the judge or the party fhall proceed after fuch prohibition, an attachment may be had againft them, to punifh them for the contempt, at the difcretion of the court that awarded it
o; and an action will lie againft them, to repair the party injured in damages.
SO long as the idea continued among the clergy, that the ecclefiaftical ftate was wholly independent of the civil, great ftruggles were conftantly maintained between the temporal courts and the fpiritual, concerning the writ of prohibition and the proper objects of it; even from the time of the conftitutions of Clarendon made in oppofition to the claims of arch-bifhop Becket in 10 Hen. II, to the exhibition of certain articles of complaint to the king by arch-bifhop Bancroft in 3 Jac. I. on behalf of the ecclefiaftical courts: from which, and from the anfwers to them figned by all the judges of Weftminfter-hall
p, much may be collected concerning the reafons of granting and methods of proceeding upon prohibitions. A fhort fummary of the latter is as follows. The party aggrieved in the court below applies to the fuperior court, fetting forth in a fuggeftion upon record the nature and caufe of his complaint, in being drawn ad aliud examen, by a jurifdiction or manner of procefs difallowed by the laws of the kingdom: upon which, if the matter alleged appears to the court to be fufficient, the writ of prohibition immediately iffues; commanding the judge not to hold, and the party not to profecute, the plea. But fometimes the point ma be too nice and doubtful to be decided merely upon a motion: and then, for the more folemn determination of the queftion, the party applying for the prohibition is directed by the court to declare in prohibition; that is, to profecute an action, by filing a declaration, againft the other, upon a fuppofition, or fiction, that he has proceeded in the fuit below, notwithftanding the writ of prohibition. And if, upon demurrer and argument, the court fhall finally be of opinion, that the matter fuggefted is a good and fufficient ground of prohibition in point of law, then judg-
.{FS}
o F. N. B. 40.
p 2 Inft. 601-618.
.{FE}
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Ch. 7.
ment with nominal damages fhall be given for the party complaining, and the defendant, and alfo the inferior court, fhall be prohibited from proceeding any farther. On the other hand, if the fuperior court fhall think it no competent ground for reftraining the inferior jurifdiction, then judgment fhall be given againft him who applied for the prohibition in the court above, and a writ of confultation fhall be awarded; fo called, becaufe, upon deliberation and confultation had, the judges find the prohibition to be ill founded, and therefore by this writ they return the caufe to it's original jurifdiction, to be there determined, in the inferior court. And, even in ordinary cafes, the writ of prohibition is not abfolutely final and conclufive. For, though the ground be a proper one in point of law, for granting the prohibition, yet, if the fact that gave rife to it be afterwards falfified, the caufe fhall be remanded to the prior jurifdiction. If, for inftance, a cuftom be pleaded in the fpiritual court; a prohibition ought to go, becaufe that court has no authority to try it: but, if the fact of fuch a cuftom be brought to a competent trial, and be there found falfe, a writ of confultation will be granted. For this purpofe the party prohibited may appear to the prohibition, and take a declaration, (which muft always purfue the fuggeftion) and fo plead to iffue upon it; denying the contempt, and traverfing the cuftom upon which the prohibition was grounded: and, if that iffue be found for the defendant, he fhall then have a writ of confultation. The writ of confultation may alfo be, and is frequently, granted by the court without any action brought; when, after a prohibition iffued, upon more mature confideration the court are of opinion that the matter fuggefted is not a good and fufficient ground to ftop the proceedings below. Thus careful has the law been, in compelling them from tranfgreffing their due bounds; and in allowing them the undifturbed cognizance of fuch caufes as by right, founded on the ufage of the kingdom or act of parliament, do properly belong to their jurifdiction.
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