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should attend the discussion of temporal causes ;(h) which soon dissolved this
* siastical persons and ecclesiastical causes should be subject only to the bishop's jurisdiction.(i) And as it was about that time that the contest and emulation began between the laws of England and those of Rome,(k) the temporal courts adhering to the former, and the spiritual adopting the latter as their rule of proceeding, this widened the breach between them, and made a coalition afterwards impracticable; which probably would else have been effected at the general reformation of the church.
In briefly recounting the various species of ecclesiastical courts, or, as they are often styled, courts christian, (curiæ christianitatis,) I shall begin with the lowest, and so ascend gradually to the supreme court of appeal.(1)
1. The archdeacon's court is the most inferior court in the whole ecclesiastical polity: It is held in the archdeacon's absence before a judge appointed by himself, and called his official; and its jurisdiction is sometimes in concurrence with, sometimes in exclusion of, the bishop's court of the diocese. From hence, however, by statute 24 Hen. VIII. c. 12, an appeal lies to that of the bishop.
2. The consistory court of every diocesan bishop is held in their several catho drals, for the trial of all ecclesiastical causes arising within their respective dioceses. The bishop's chancellor, or his commissary, is the judge ; and from his sentence an appeal lies, by virtue of the same statute, to the archbishop of each province respectively:
3. The court of arches is a court of appeal belonging to the archbishop of Canterbury; whereof the judge is called *the dean of the arches, because
[*65 he antiently held his court in the church of Saint Mary le bow, (sancta Maria de arcubus,) though all the principal spiritual courts are now holden at doctors' commons. His proper jurisdiction is only over the thirteen peculiar parishes belonging to the archbishop in London; but the office of dean of the arches having been for a long time united with that of the archbishop's principal official, he now, in right of the last-mentioned office, (as doth also the official principal of the archbishop of York,) receives and determines appeals from the sentences of all inferior ecclesiastical courts within the province. And from him an appeal lies to the king in chancery, (that is, to a court of delegates appointed under the king's great seal,) by statute 25 Hen. VIII. c. 19, as supreme head of the English church, in the place of the bishop of Rome, who formerly exercised this jurisdiction; which circumstance alone will furnish the reason why the popish clergy were so anxious to separate the spiritual court from the temporal.
4. The court of peculiars is a branch of and annexed to the court oi' arches. It has a jurisdiction over all those parishes dispersed through the province of Canterbury in the midst of other dioceses, which are exempt from the ordinary's jurisdiction and subject to the metropolitan only. All ecclesiastical causes arising within these peculiar or exempt jurisdictions are, originally, cognizable by this court; from which an appeal lay formerly to the pope, but DOW, by the statute 25 Hen. VIII. c. 19, to the king in chancery.
5. The prerogative court is established for the trial of all testamentary causes where the deceased hath left bona notabilia within two different dioceses. In which case the probate of wills belongs, as we have formerly seen,(m) to the archbishop of the province, by way of special prerogative. And all causes relating to the wills, administrations, or legacies of such persons are, originally, cognizable herein, before a judge appointed by the archbishop, called the judge *of the prerogative court: from whom an appeal lies, by statute 25 Hen.
[*66 VIII. c. 19, to the king in chancery, instead of the pope, as formerly.
(*) Ne qriscopi sæcularium placitorum officium suscipiant. (9) For further particulars, gee Burn's Ecclesiastical Law,
Wood's Institute of the Common Law, and Oughtop's Onde
(Spelm. Cod. 301.
(") Book i. ch. 32.
I pass by such ecclesiastical courts as have only what is called a voluntary, and not a contentious, jurisdiction ; which are merely concerned in doing or selling what no one opposes, and which keep an open office for that purpose, (as granting dispensations, licenses, faculties, and other remnants of the papal extortions,) but do not concern themselves with administering redress to any injury: and shall proceed to
6. The great court of appeal in all ecclesiastical causes, viz., the court of delegates, judices delegati, appointed by the king's commission under his great seal, and issuing out of chancery, to represent his royal person, and hear all appeals tu him made by virtue of the before-mentioned statute of Henry VIII. This commission is frequently filled with lords, spiritual and temporal, and always with judges of the courts at Westminster, and doctors of the civil law. Appeals to Rome were always looked upon by the English nation, even in the times of popery, with an evil eye, as being contrary to the liberty of the subject, the honour of the crown, and the independence of the whole realm; and were first introduced in very turbulent times in the sixteenth year of king Stephen, (A.D. 1151,) at the same period (Sir Henry Spelman observes) that the civil and canon laws were first imported into England.(n) But, in a few years after, to obviate this growing practice, the constitutions made at Clarendon, 11 Hen. II., on account of the disturbances raised by archbishop Becket and other zealots of the holy see, expressly declare,(0) that appeals in causes ecclesiastical ought tr lie, from the archdeacon to the diocesan; from the diocesan to the archbishop of the province; and from the archbishop to the king; and are not to proceed any further without special license from the crown. But the unhappy advantage that was given, in the reigns of king John and his son Henry the Third, to
the encroaching *power of the pope, who was ever vigilant to improve
all opportunities of extending his jurisdiction hither, at length riveted the custom of appealing to Rome in causes ecclesiastical so strongly, that it never could be thoroughly broken off till the grand rupture happened in the reign of Henry the Eighth ; when all the jurisdiction usurped by the pope in matters ecclesiastical was restored to the crown, to which it originally belonged : so that the statute 25 Hen. VIII. was but declaratory of the antient law of the realm.(p) But in case the king himself be party in any of these suits, the appeal does not then lie to him in chancery, which would be absurd ; but, hy the statute 24 Hen. VIII. c. 12, to all the bishops of the realm, assembled in the upper house of convocation.
7. A commission of review is a commission sometimes granted, in extraordinary cases, to revise the sentence of the court of delegates, when it is apprehended they have been led into a material error. This commission the king may grant, although the statutes 24 & 25 Hen. VIII. before cited, declare the sentence of the delegates definitive: because the pope, as supreme head by the canon law, used to grant such commission of review; and such authority as the pope heretofore exerted is now annexed to the crown() by statutes 26 Hen. VIII. c. 1, and 1 Eliz. c. 1. But it is not matter of right, which the subject may demand ex debito justitiæ, but merely a matter of favour, and which therefore is often denied.
These are now the principal courts of ecclesiastical jurisdiction : none of which are allo ed to be courts of record; no more than was another much more formidable jurisdiction, but now deservedly annihilated, viz., the court of the king's high commission in causes ecclesiastical. This court was erected and
(*) Cd. vet. leg. 315.
(P) 4 Inst. 341.
(0) Ch. 8.
No such assembly can exist as all the bishops of the realm in any house of convo cation. But the statute says that the appeal shall be to the bishops, abbots, and priors of the upper house of the convocation of the province in which the cause of the suit arises. Therefore, in the province of York, the appeal lies now to the archbishop and his three bishops ; in the province of Canterbury, to the rest of the bench of bishops. See 1 Book, 280, n. 36. When the delegates are equally divided in opinion, so that no judgment van be pronounced a commission of a ljuncts may issue. See an instance referred to id
united to the legal power(r) by virtue of the statute 1 Eliz. c. 1, instead of & larger jurisdiction which had before been exercised under the pope's authority. It was intended *to vindicate the dignity and peace of the church, by reforming, ordering, and correcting the ecclesiastical state and persons,
[*68 and all manner of errors, heresies, schisms, abuses, offences, contempts, and enormities. Under the shelter of which wery general words, means were found, in that and the two succeeding reigns, to vest in the high commissioners extraordinary and almost despotic powers of fining and imprisoning; which they exerted much beyond the degree of the offence itself, and frequently over offences by no means of spiritual cognizance. For these reasons this court was justly abolished by statute 16 Car. I. c. 11. And the weak and illegal attempt that was made to revive it, during the reign of king James the Second, served only to hasten that infatuated prince's ruin.
II. Next, as to the courts military. The only court of this kind known to, and established by, the permanent laws of the land, is the court of chivalry, formerly held before the lord high constable and earl marshal of England jointly, but since the attainder of Stafford, duke of Buckingham, under Henry VIII., and the consequent extinguishment of the office of lord high constable, it hath usually, with respect to civil matters, been held before the earl marshal only (8) This court, by statute 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 its sentences an appeal lies immediately to the king in person.(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 almost entirely out of use, on account of the feebleness of its jurisdiction, and want of power to enforce its judgments, as it can neither fine nor imprison, not being a court of record.(u)
III. The maritime courts, or such as have power and jurisdiction to determiné all maritime injuries, arising upon the *seas, or in parts out of the reach
[*69 of the common law, are only the court of admiralty and its 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 Sir Henry Spelman,(w) and Lambard,(x) it was first of all erected by king
Edward the Third. Its proceedings are according to the method of the civil law, liko those of the ecclesiastical courts; upon which account it is usually held at the same place with the superior ecclesiastical courts, at doctors' commons in London. It is no court of record, any more than the spiritual courts. From the Rentences of the admiralty judge an appeal always lay, in ordinary course, to
4 Burt. 2254. A commission of review was applied for in the court of chancery iz Michaelmas Term, 1798, when the chancellor, upon hearing the arguments of civilians and barristers respecting the judgment of the delegates, determined to recommend to the king to grant a commission of review. See 4 Ves. Jr. 186.—CHRISTIAN.
But the jurisdiction of the court of delegates has, by statutes 2 & 3 W. IV. c. 92 and 3 & 4 W. IV. c. 41, been transferred to the judicial committee of the privy council, which is now the great court of appeal in all ecclesiastical causes. This court is composed of the president of the council, the lord chancellor, the chief justice of the court of King's Bench, the master of the rolls, the lord-justices of the court of appeal in chancery, vico chancellors, (if privy councillors,) the chief justice of the Common Pleas, the lord chief baron, the judge of the prerogative court, the judge of the high cùurt of admiralty, tho members of the privy council who shall have held any of these offices, and two other privy councillors, who may be appointed by sign manual; and two privy councillors who shall have held the office of judge in the East Indies or any of the king's dominions beyond seas shall attend the sittings of the judicial committee. By stat. 6 & 7 Vict. c. 38, appeals may be heard by not less than three of its members, under a special order of the queen. This court is a court of record, and has full power to punish contempts and enforce its decrees, to award costs and have them taxed. -STEWART.
2 The practice of the court of admiralty has been improved and its jurisdiction attended by statute 3 & 4 Vict. c. 65.-STEWART.
the king in chancery, as may be collected from statute 25 Hen. VIII. c. 19, which directs the appeal from the archbishop's courts to be determined by persons named in the king's commission," like as in case of appeal from the admiralcourt.” But this is also expressly declared by statute 8 Eliz. c. 5, which enacts, that upon appeal made to the chancery, the sentence definitive of the delegates appointed by commission shall be final.
Appeals from the vice-admiralty courts in America, and our other plantations and settlements, may be brought before the courts of admiralty in England, as being a branch of the admiral's jurisdiction, though they may also be brought before the king in council. But in case of prize vessels, 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 commissioners of appeals consisting 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 established in all the maritime countries of Europe for the decision of this question, whether lawful prize or not;" for, this being a question between subjects of different states, it belongs entirely to the law of nations, and not to the municipal laws of either country, to determine it. The original court, to *70]
which this question is *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 consequence of treaties, commissioned under the great seal for this purpose. In 1748, for the more speedy determination of appeals, tho judges of the courts of Westminster hall, though not privy counsellors, were added to the commission then in being. But doubts being conceived concerning the validity of that commission on account of such addition, the same was confirmed by statute 22 Geo. II. c. 3, with a proviso that no sentence given under it should be valid unless a majority of the commissioners present were actually privy counsellors. But this did not, I apprehend, extend to any future commissions : and such an addition became indeed totally unnecessary in the course of the war which commenced in 1756; since during the whole or that war, the commission of appeals was regularly attended and all its decisions conducted by a judge whose masterly acquaintance with the law of nations was known and revered by every state in Europe.(y)
(v) See the sentiments of the president Montesquieu and Esposition des Motifs, &c. A.D. 1753. Montesquieu's Letteru M. Vattel (a subject of the king of Prussia) on the answer 5 var. 1753. Vattel's droit de gens, l. 2, c. 7, 6 84. transmitted by the English court to his Prussian majesty's
• But now, by stat. 3 & 4 W. IV. c. 41, s. 2, all appeals are to be made to the queen in council from the court of admiralty or vice-admiralty, or any other court in America and other her majesty's dominions abroad; and, by s. 3, all appeals may be referred to the judicial committee.—STEWART.
• Ănd, in order to give effect to this, the prize acts passed at the commencement of a war usually provide that ships and goods taken from the enemy, whether by the royal navy or by privateers, must first be condemned in some court of admiralty as lawful prize before any right in point of solid enjoyment can accrue to the captors; and specific directions are prescribed for duly proceeding to such sentence. See the 19 Geo. III. o 67. 1 Wils. 229. 4 Rob. 55.-Chitty.
“This seems incorrect; for questions of this nature are tried in the prize court, which 18 quite distinct from the admiralty court, otherwise called the instance court. The whole system of litigation and jurisprudence in the prize court is peculiar to itself. Seo Doug. 594. The judge of the admiralty court, though also the judge of the prize court, is appointed by a commission under the great seal, which enumerates particularly, as well as generally, every object of his jurisdiction, but not a word of prize. See Doug. 614. The judge of the prize court is appointed, and the court authorized, by a commis. sion under the great seal directed to him, to will and require the court of admiralty, and the lieutenant and judge of the same court, his surrogate or surrogates, and they are thereby authorized and required to proceed upon all and all manner of captures, seizures, prize, and reprisals, of all ships and goods that are or shall be taken, and to hear and determine according to the course of the admiralty and the law of nations. See id. ; and see further, as to the jurisdiction and proceedings in the prize court, post.-Cutty.
• Lord Mansfield is here alluded to. The answer to the Exposition des Motifs, &c. is signed Sir G. Lee, judge of the prerogative court, Dr. Paul, advocate-general, Sir D.
yder attorney, and Sir W. Murrav, solicitor-general; but lord Mansfield frequently
OF COURTS OF A SPECIAL JURISDICTION.
In the two preceding chapters we have considered the several courts whose jurisdiction is public and general, and which are so ?ontrived that some or other of them may administer redress to every possible injury that can arise in the kingdom at large. There yet remain certain others, whose jurisdiction is private and special, confined to particular spots, or instituted only to redress particular injuries. These are,
1. The forest courts, instituted for the government of thu king's forests in different parts of the kingdom, and for the punishment of all injuries done to the king's deer or venison, to the vert or greensward, and to the covert in which buch deer are lodged. These are the courts of attachments, of reyard, of sweinmote, and of justice-seat. 1. The court of attachments, wood-motes, or forty-days court is to be held before the verderors of the forest once in every forty days;(a) and is instituted to inquire into all offenders against vert and venison ;() whó may be attached by their bodies, if taken with the mainour, (or mainoeuvre, a manu,) that is, in the very act of killing venison, or stealing wood, or preparing 80 to do, or by fresh and immediate pursuit after the act is done ;(c) else they must be attached by their goods. And in this forty-days court the foresters or keepers are to bring their attachments, or presentments de viridi et venatione; and the verderors are to receive the same, and to enroll them, and to certify them under their seals to the court of justice-seat or swein mote:(d) for this court can only inquire of, but not convict, offenders. 2. The court of regard, or survey of dogs, is to be holden every third year for the lawing or expeditation of mastiffs, which is done by cutting off the claws and ball (or *pelote) of the forefeet, to prevent them from running after deer.(e) No other dogs
[*72 but mastiffs are to be thus lawed or expeditated, for none others were permitted to be kept within the precincts of the forest; it being supposed that tho keeping of these, and these only, was necessary for the defence of a man's house. (f) 3. The court of sweinmote is to be holden before the verderors, as judges, by the steward of the swein-mote, thrice in every year,(9) the sweins or freeholders within the forest composing the jury. The principal jurisdiction of this court is, first, to inquire into the oppressions and grievances committed by the officers of the forest; "de super-oneratione forestariorum, et aliorum ministrorum forestæ; et de eorum oppressionibus populo regis illatis;" and, secondly, to receive and try presentments certified from the court of attachment against
(6) Cart. de forest. 9 Hen. III. c. 8.
(d) Cart. de forest. c. 16. declared to his friends that it was entirely his own composition. Holliday's Life of Lord M. p. 424. Montesquieu calls it une réponse sans replique.-COLERIDGE.
And now, by stat. 3 & 4 W. IV. c. 41, § 2, all appeals or applications in prize suits shall be made to the king in council, and, by stat. 6 & 7 Vict. c. 38, may be referred to the judicial committee of the privy council, which is now the great court of appeal sa well in all maritime as ecclesiastical matters.--STEWART.
Prior to the Revolution, courts of admiralty existed in most of the colonies which afterwards became the United States. By the Articles of Confederation, Congress was authorized to appoint courts for the trial of piracies and felonies committed on the high seas, and to establish courts for receiving and determining finally appeals in all cases of captures. By the constitution of the United States, art. 3, it is provided that the judicial power of the United States shall extend to all cases of admiralty and maritimo jurisdiction. The cognizance of all cases of admiralty and maritime jurisdiction, including cases of captures made within the waters of the United States or within a marine league of the coasts or shores thereof, is now vested in the district courts of the United States. From these courts an appeal lies the cir courts, and from thence to the Supreme Court of the United States. Act of Congress 24 Sept. 1789, s. 9. 1 Story'. Laws Ū. S. 56 - SHARSWOOD.
Cart, de forest. c. 8.