not run; that is, in which the ordinary writs are of no force. For as originally all jura regalia were granted to the lords of these counties palatine, they had, of course, the sole administration of justice, by their own judges appointed by themselves and not by the crown. It would therefore be incongruous for the sovereign to send his writ to direct the judge of another's court in what manner to administer justice between the suitors. The judges of assize, who sit therein, sit, therefore, by virtue of a special commission from the crown as owner of these several franchises, and under the seal thereof; and not by the usual commission under the great seal of England. The procedure, however, is similar to that of the superior courts of common law at Westminster. And an appeal lies to the court of Queen's Bench, as an ensign of superiority reserved to the crown at the original creation of the franchises. All prerogative writs, as those of habeas corpus, prohibition, certiorari, and mandamus, may issue for the same reason to all these exempt jurisdictions; because the privilege, that the king's writ runs not, must be intended between party and party, for there can be no such privilege against the king.

3. The Stannary Court, for the administration of justice among the tinners in Devonshire and Cornwall, is also a court of record of the same local character. So are

4. The several courts within the city of London, and other cities, boroughs, and corporations throughout the kingdom, held by prescription, charter, or act of parliament; and

5. The Chancellor's courts in the two Universities of England. Which two learned bodies enjoy the sole jurisdiction, in exclusion of the Queen's Courts, over all civil actions and suits whatsoever, when a scholar or privileged person is one of the parties; excepting in such cases where the right of freehold is concerned.

III. The third species of courts, or those whose jurisdiction is special in its nature are

1. The Forest Courts, instituted for the government of the royal forests, and for the punishment of all injuries done to the royal deer or venison, to the vert or greenswerd, and to the covert in which such deer are lodged. These are the courts of Attachments, of Regard, of Sweinmote, and of Justice-seat; for an account of whose jurisdiction and procedure I must refer the student to the treatises on these subjects; only remarking here, that they will soon be, if they are not already, interesting only to the antiquary; the policy of modern legislation being to remove all traces of the ancient forests, and of the obnoxious privileges formerly attached to them.

2. A similar observation might, perhaps, be made with reference to the Courts of the Commissioners of Sewers, which are temporary

tribunals, erected by commission under the great seal, with jurisdiction to overlook the repairs of sea banks and walls, and the cleansing of public streams, ditches, and other conduits, whereby any waters are carried off, in the county or particular district specified in the commission. These duties are obviously so much more of an administrative than of a judicial nature, that in modern times powers similar to those possessed by the courts of sewers have been freely conferred on vestries, borough councils, and other local representative bodies, charged with the improvement and police of towns and other populous places. And the functions of the commissioners of sewers are thus so effectually superseded, that these courts are not likely to be ever again called into active operation.

I have now gone through the several species of private, or special courts, of the greatest note in the kingdom, instituted for the local redress of private wrongs; and must, in the close of all, make one general observation from Sir Edward Coke: that these particular jurisdictions, derogating from the general jurisdiction of the courts of common law, are ever strictly restrained, and cannot be extended further than the express letter of their privileges will most explicitly

warrant.

CHAPTER IV.

OF THE COGNIZANCE OF PRIVATE WRONGS.

I. By Ecclesiastical Courts, viz.: Suits as to tithes, surplice, and other fees→ Spoliation and dilapidations-Excommunication. 11. By Divorce Court, viz.: Divorce-Separation-Alimony-Restitution of conjugal rightsNullity and validity of marriage and causa jactitationis matrimonii. III. By Court of Probate, viz.: Proving of wills and grant of administra tion. IV. By Court of Admiralty: Injuries on the high seas. V. By Courts of Common Law: Procedendo-Mandamus-Prohibition.

WE are now to consider in which of the vast variety of courts, mentioned in the preceding chapters, every possible injury that can be offered to a man's person or property is certain of meeting with redress.

The authority of the courts of special jurisdiction was remarked as those tribunals were enumerated; we will therefore confine our present inquiry to the cognizance of civil injuries in the courts of general jurisdiction. And the order, in which I shall pursue this inquiry, will be by showing-1. What injuries may be remedied in the ecclesiastical courts. 2. What in the Court for Divorce and Matrimonial Causes. 3. What in the Court of Probate. 4. What

in the Admiralty Courts. And, 5. What in the superior courts of common law. I shall endeavour to point out, as I proceed, what other remedies are, in particular cases, open to the parties injured; and especially when it may be more desirable to resort to a court of equity, than to sue in a court of common law. The special or peculiar jurisdiction and the procedure of the courts of equity I shall treat of separately.

And, with regard to the jurisdiction of the ecclesiastical courts, I must not so much consider what has been claimed to belong thereto, but what the common law permits to be so. For these tribunals, as they subsist and are admitted in England, not by any right of their own, but upon bare sufferance and toleration from the municipal laws, must have recourse to the laws of that country wherein they are thus adopted, to be informed how far their jurisdiction extends, or what causes are permitted, and what forbidden, to be discussed or drawn in question before them. Having premised this general caution, I proceed now to consider,

I. The injuries cognizable by the Ecclesiastical courts—such, I mean, as are offered to private persons, or individuals; which are here cognizable, not for reformation of the offender himself or party injuring, pro salute animæ, as is the case with immoralities in general, when unconnected with private injuries, but for the sake of the party injured, to make him a satisfaction and redress for the damage which he has sustained. These wrongs were until quite recently treated of under three general heads- -causes pecuniary, causes matrimonial, and causes testamentary; but the jurisdiction of the Courts Christian, in causes matrimonial and testamentary, having been transferred to other tribunals, they now take cognizance only of

Pecuniary causes, which are such as arise either from the withholding ecclesiastical dues, or the doing or neglecting some act relating to the church, whereby some damage accrues to the plaintiff ; towards obtaining a satisfaction for which he is permitted to institute a suit in the spiritual court. The principal of these is the subtraction or witholding of tithes from the parson or vicar, whether the former be a clergyman or a lay appropriator, where the right does not come into question, but only the fact, whether or no the tithes allowed to be due are really subtracted or withdrawn. But it now seldom happens that tithes are sued for at all in the spiritual court; for various modern statutes have provided a summary method of proceeding before magistrates in petty sessions, except where the actual title to the tithe or the actual liability or exemption of the land is bonâ fide in question. And tithes themselves will ere long be a thing of the past, those not previously commuted by agreement

being now convertible into rent-charges, recoverable by distress, in the same manner as rent reserved on a lease.

Another pecuniary injury, cognizable in the spiritual courts, is the non-payment of other ecclesiastical dues to the clergy; as pensions, mortuaries, compositions, offerings, and whatsoever falls under the denomination of surplice fees, for marriages or other ministerial offices of the church: all which injuries are redressed by a decree for their actual payment. For fees also, settled and acknowledged to be due to the officers of the ecclesiastical courts, a suit will lie therein; but not if the right of the fees is at all disputable; for then it must be decided by the common law.

Under this head of pecuniary injuries may also be reduced the several matters of spoliation, dilapidations, and neglect of repairing the church and things thereunto belonging; for which a satisfaction may be sued for in the ecclesiastical court.

Spoliation is 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 so taken. For dilapidations, which are a kind of ecclesiastical waste, either voluntary, by pulling down; or permissive, by suffering the chancel, parsonage-house, and other buildings thereunto belonging, to decay; an action also lies, either in the spiritual court by the canon law, or in the courts of common law; and it may be brought by the successor against the predecessor, if living, or, if dead, then against his executors.

And as to the neglect of reparations of the church, churchyard, and the like, the spiritual court has undoubted cognizance thereof; and a suit may be brought therein for non-payment of a rate made by the churchwardens for that purpose. Where, however, the amount claimed does not exceed 107., and the validity of the rate, or the liability of the person from whom it is demanded, is not disputed, the only method of proceeding is under the statute 57 Geo. III. c. 127; which enables two justices, on the complaint of any churchwarden, to order the payment of a church-rate by any person refusing to do so. If the validity of the rate or the liability of the person charged be disputed, the churchwardens must proceed in the ecclesiastical court.

But before I dismiss this head, it may not be improper to add a few words concerning the method of proceeding in these tribunals, which is almost entirely according to the practice of the civil and canon laws, or rather according to a mixture of both, corrected and new modelled by their own particular usages, and the interposition of the courts of common law. Their ordinary course of proceeding is-first, by citation, to call the party injuring before them. Then,

by libel, or by articles drawn out in a formal allegation, to set forth the complainant's ground of complaint. To this succeeds the defendant's answer upon oath; when, if he denies or extenuates the charge, they proceed to proofs either in open court, or by having witnesses examined, and their depositions taken down in writing by an officer of the court. If the defendant has any circumstances to offer in his defence, he must also propound them in what is called his defensive allegation, to which he is entitled in his turn to the plaintiff's answer upon oath, and may from thence proceed to proofs as well as his antagonist. When all the pleadings and proofs are concluded, they are referred to the consideration, not of a jury, but of a single judge; who takes information by hearing advocates on both sides, and therefore forms his interlocutory decree or definite sentence at his own discretion: from which there generally lies an appeal, in the several stages already mentioned.

But the point in which these jurisdictions are the most defective, is that of enforcing their sentences when pronounced; for which they have no other process but that of excommunication; which is described to be twofold; the less and the greater excommunication. The less is an ecclesiastical censure, excluding the party from the participation of the sacraments: the greater proceeds further, and excludes him not only from these, but also from the company of all Christians. Heavy as this penalty is, considered in a serious light, there are, notwithstanding, many obstinate or profligate men who would despise the brutum fulmen of mere ecclesiastical censures, especially when pronounced by a petty surrogate in the country, for non-payment of fees, or costs, or for other trivial causes. The common law, therefore, compassionately steps in to the aid of the ecclesiastical jurisdiction, and kindly lends a supporting hand to an otherwise tottering authority, by giving the writ de contumace capiendo, upon which the person who is contumacious may be imprisoned, until released by a writ of deliverance, or discharged from custody in due course of law.

II. Matrimonial causes, or injuries respecting the rights of marriage, until recently a branch of the ecclesiastical jurisdiction, are now exclusively cognizable in the Court for Divorce and Matrimonial Causes. Of these the first and principal is,

1. The suit for a divorce, on the ground of adultery, which is brought either by the husband against the wife and her paramour; or by the wife against the husband; being maintainable by the husband in respect of the simple adultery of the wife; but not by the wife against the husband, unless his adultery has been coupled with desertion, without reasonable excuse, for two years, or with such cruelty as would entitle the wife to a judicial separation, or he has