Page images
PDF
EPUB

of London, and other trading and populous districts, which in their proceedings so vary from the course of common law that they may deserve a more particular consideration. I mean the courts of requests, or courts of conscience, for the recovery of small debts.' The first of these was established in London, so early as the reign of Henry the Eighth, by an act of their common council; which, however, was certainly insufficient for that purpose and illegal, till confirmed by statute 3 Jac. I. c. 15, which has since been explained and amended by statute 14 Geo. II. c. 10.T The constitution is this: two aldermen, and four commoners, sit twice a week to hear all causes of debt not exceeding the value of forty shillings; which they examine in a summary way, by the oath of the parties or other witnesses, and make such order therein as is consonant to equity and good conscience. The time and expense of obtaining this summary redress are very inconsiderable, which make it a great benefit to trade; and thereupon divers trading towns and other districts have obtained acts of parliament, for establishing in them courts of conscience upon nearly the same plan as that in the city of London."

*The anxious desire that has been shown to obtain these several acts, r*ao proves clearly that the nation in general is truly sensible of the great in- <convenience arising from the disuse of the antient county and hundred courts; wherein causes of this small value were always formerly decided, with very little trouble and expense to the parties. But it is to be feared, that the general remedy which of late hath been principally applied to this inconvenience (the erecting these new jurisdictions) may itself be attended in time with very ill consequences: as the method of proceeding therein is entirely in derogation of the common law; as their large discretionary powers create a petty tyranny in a set of standing commissioners; and as the disuse of the trial by jury may tend to estrange the minds of the people from that valuable prerogative of Englishmen, which has already been more than sufficiently excluded in many instances. How much rather is it to be wished, that the proceedings in the county and hundred courts could again be revived, without burdening the freeholders with too frequent and tedious attendances; and *at the same time removing the r*g3 delays that have insensibly crept into their proceedings, and the power that either party have of transferring at pleasure their suits to the courts at Westminster! And we may with satisfaction observe, that this experiment has been actually tried, and has succeeded, in the populous county of Middlesex; which might serve as an example for others. For by statute 23 Geo. II. c. 33, it is enacted, 1. That a special county-court should be held, at least once a month, in every hundred of the county of Middlesex, by the county-clerk. 2. That twelve freeholders of that hundred, qualified to serve on juries, and struck by the sheriff, shall be summoned to appear at such court by rotation; so as none shall be summoned oftener than once a year. 3. That in all causes not exceeding the value of forty shillings, the county-clerk and twelve suitors shall proceed in a summary way, examining the parties and witnesses on oath, without the formal process antiently used; and shall make such order therein as they shall judge agreeable to conscience. 4. That no plaints shall be removed out of this court by any process whatsoever; but the determination herein shall be final. 5. That if any action be brought in any of the superior courts against a person resident in Middlesex, for a debt or contract, upon the trial whereof the jury shall find less than 40s. damages, the plaintiff shall recover no costs, but shall pay the

• See all the acts and cases thereon, relating to courts of requests, ably collected in Tidd's Prac. 8 ed. 989 to 996.—cujtty\

'The act is still further extended by the 39 & 40 Geo. III. c. 104. See Tidd's Prac. 8 ed. 989.—Chiitt.

■ By the 25 Geo. III. c. 45 and 26 Geo. III. c. 38, no debtor or defendant, in any court for the recovery of small debts, where the debt does not exceed 20j., shall be committed to prison for more than twenty days, and if the debt does not exceed 40j., for more than forty days, unless it be proved to the satisfaction of the court that he has money or goods which he fraudulently conceals; and in the first case the imprisonment may b* extended to thirty days, and in the latter to sixty.

defendant double costs; unless upon some special circumstances, to be certified by the judge who tried it. 6. Lastly, a table of very moderate fees is proscribed and set down in the act; which are not to be exceeded upon any account whatsoever. This is a plan entirely agreeable to the constitution and genius of the nation; calculated to prevent a multitude of vexatious actions in the superior courts, and at the same time to give honest creditors an opportunity of recovering small sums; which now they are frequently deterred from by the expense of a suit at law; a plan which, one would think, wants only to be generally known, in order to its universal reception.

X. There is yet another species of private courts, which I must not pass over in silence: viz., the chancellor's courts in the two universities of England.' Which two learned bodies enjoy the sole jurisdiction, in exclusion of the king's *841 *coul"ts> over all civil actions and suits whatsoever, when a scholar or priviJ leged person is one of the parties; excepting in such cases where the right of freehold is concerned. And these by the university charter they are at liberty to try and determine, either according to the common law of the land, or according to their own local customs, at their discretion; which has generally led them to carry on their process in a course much conformed to the civil law, for reasons sufficiently explained in a former book.(i)

These privileges were granted, that the students might not be distracted from their studies by legal process from distant courts, and other forensic avocations. And privileges of this kind are of very high antiquity, being generally enjoyed by all foreign universities as well as our own, in consequence (I apprehend) of a constitution of the emperor Frederick, A.d. 1158. (m) But as to England in particular, the oldest charter that I have seen, containing this grant to the university of Oxfbrd, was 28 Hen. III. A.d. 1244. And the same privileges were confirmed and enlarged by almost every succeeding prince, down to Henry tho Eighth; in the fourteenth year of whose reign the largest and most extensive charter of all was granted. One similar to which was afterwards granted to Cambridge in the third year of queen Elizabeth. But yet, notwithstanding these charters, the privileges granted therein, of proceeding in a course different from the law of the land, were of so high a nature that they were held to be invalid; for though the king might erect new courts, yet he could not alter the course of law by his letters-patent. Therefore in the reign of queen Elizabeth an act of parliament was obtained,(n) confirming all the charters of the two universities, and those of 14 Hen. VIII. and 3 Eliz. by name. Which blessed act, as Sir Edward Coke entitles it,(o) established this high privilege without any

O Book L introd. i 1. (•) 13 His. 0. 29.

(-) OxL t, tit. 18. (•) 4 lot 227.

• As the object of the privilege is that students and others connected with the universities should not be distracted from the studies and duties to be there performed, the party proceeded against must in general be a resident member of the university, and that fact must be expressly sworn, or be collected from the affidavit. The privilege of Cambridge differs from that of Oxford: in the former it only extends to causes of action accruing in the town and its suburbs; but in Oxford it extends to all personal causes arising anywhere. R. T. Hardw. 241. 2 Wils. 406. Bac. Abr. Universities. The claim of conusance must be made in due form and in due time. 2 Wils. 406. Claim of conusance of an action of trespass, brought in King's Bench against a resident member of the university of Cambridge, for a cause of action verified by affidavit not to have arisen within the town and suburbs of Cambridge, was allowed upon the claim of the vice-chancellor on behalf of the chancellor, masters, and scholars of the university, entered on the roll in due form, setting out their jurisdictions under charters confirmed by statute, and averring that the cause of action arose within such jurisdiction. 12 East, 12. And claim of conusance by the university of Oxford was allowed in an action of trespass in King'* Bench against a proctor, a pro-proctor, and the marshal of the university, though the affidavit of the latter, describing him as of a parish in the suburbs of Oxford, only verified that he then was, and had been for the last fourteen years, a common servant of the university, called marshal of the university, and that he was sued for an act done by him in the discharge of his duty, and in obedience to the orders of the other two defendants, without stating that he resided within the university, or was matriculated. 15 East, 634. —Chittt.

doubt or oppos.tion:(p) or, as Sir Matthew Hale(j) very fully expresses the sense *of the common law and the operation of the act of parliament, r*o= "although king Henry the Eighth, 14 A. E. sui, granted to the university a liberal charter, to proceed according to the use of the university; viz., by a course much conformed to the civil law, yet that charter had not been sufficient to have warranted such proceedings without the help of an act of parliament. And therefore in 13 Eliz. an act passed, whereby that charter was in effect enacted; and it is thereby that at this day they have a kind of civil-law procedure, even in matters that are of themselves of common-law cognizance, where either of the parties is privileged."

This privilege, so far as it relates to civil causes, is exercised at Oxford in the chancellor's court; the judge of which is the vice-chancellor, his deputy or assessor. From his sentence an appeal lies to delegates appointed by the congregation; from thence to other delegates of the house of convocation; and if they all three concur in the same sentence it is final at least by the statutes of the university,(r) according to the rule of the civil law.(s) But, if there be any discordance or variation in any of the three sentences, an appeal lies in the last resort to judges delegates appointed by the crown under the great seal in chancery.

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:(i) 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 VII.
OF THE COGNIZANCE OF PRIVATE WRONGS.

♦we now proceed to the cognizance of pr 'vate wrongs; that is, to con- r¥flfl eider in which of the vast variety of courts, mentioned in the three pre- L ceding 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 several courts o f private and special jurisdiction, or of what wrongs such courts have cognizance, was necessarily remarked as those respective tribunals were enumerated, and therefore need not be here again repeated; which will confine our present inquiry to the cognizance of civil injuries in the several courts of public or general jurisdiction. And the order in which I shall pursue this inquiry will be by showing: 1. What actions may be brought, or what injuries remedied, in the ecclesiastical 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 first of these particulars, I must beg leave not over much to consider what hath at any time been claimed or pretended to belong to their jurisdiction, by the officers and judges of those respective courts; but what the common law allows and permits to be so. For these eccentrical tribunals, (which are principally guided by the rules of the imperial and canon laws,) as they subsist and are *admitted in England, not by any right of r+R7 their own,(aj but upon bare sufferance and toleration from the municipal *■ laws, must nave 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.

(») Jeok. Cent 2, pL 88; Cent. 3, pL 33. Hardr. 604. Clod- (•) Cod. 1, 70,1.

•ok 201. (<) 2 Inst. 643.

(f) fflet C. L. 33. (•) See book L lntrod. 31

h Tit 31,11».

It matters not therefore what the pandects of Justinian, or the decretals of Gregory, have ordained. They are here of no more intrinsic authority than the laws of Solon and Lycurgus: curious perhaps for their antiquity, respectable for their equity, and frequently of admirable use in illustrating a point of history. Nor is it at all material in what light other nations may consider this matter if jurisdiction. Every nation must and will abide by its own municipal laws; which various accidents conspire to render different in almost every country in Europe. We permit some kinds of suits to be of ecclesiastical cognizance, which other nations have referred entirely to the temporal courts; as concerning wills and successions to intestates' chattels; and perhaps we may in our turn prohibit them from interfering in some controversies, which on the continent may be looked upon as merely spiritual. In short, the common law of England is the one uniform rule to determine the jurisdiction of our courts: and, if any tribunals whatsoever attempt to exceed the limits so prescribed them, the king's courts of common law may and do prohibit them; and in some cases punish their judges.(ft)

Having premised this general caution, I proceed now to consider, 1. The wrongs or injuries cognizable by the ecclesiastical courts. I mean such as are offered to private persons or individuals;' which are cognizable by the ecclesiastical court, not for reformation of the offender himself or party injuring, (pro salute animoe, 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 susJ tained. And these I shall reduce under three general heads; of causes pecuniary, causes matrimonial, and causes testamentary.

1. Pecuniary causes, cognizable in the ecclesiastical courts, 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 withholding of tithes from the parson or vicar, whether the former be a clergyman or a lay appropriator.(e) But herein a distinction must be taken: for the ecclesiastical courts have no jurisdiction to try the right of tithes unless between spiritual persons ;(d) but, in ordinary cases between spiritual men and lay men, are only to compel the payment of them, when the right is not disputed.(e) By the statute, or rather writ,(/) of circumspecte agatis,(g) it is declared that the court Christian shall not

(») Hal. Hilt. C. L. c. 2. (•) 2 Intt. 364, 4K9, 490.

e) Stat. 3.! Hen. VIII. c. 7. (f) See Barrington, 123. 3 Prjm. Rec. 338.

{*) 2 Roll. Abr. 309, 310. Bro. Abr. a Jurisdiction, 86. (») 13 Edw. 1. «t. 4, or rather 9 Edw. IL

1 See, in general, Bac. Abr. tit. Courts Ecclesiastical, D. and tit. Slander; Com. Dig. Prohibition; where see G. when the ecclesiastical court has jurisdiction and when not. The ecclesiastical court has no jurisdiction over trusts; and therefore, where a party sued as a trustee was arrested on a writ de contumace capiendo, the court of King's Bench discharged him out of custody. 1 B. & C. 655.

suits for defamation may be added to the three heads above considered. As to these in

general, see Burn, Eccl. L. Defamation. Com. Dig. Prohibition, G. 14. Bac. Abr. Slander, '. U. Stark on Slander, 32,4G4. Words imputing an offence merely spiritual are not in themselves actionable at law, unless followed by special damage, and the party slandered can only institute a suit in the spiritual court: and though the law discourages suits of this kind, yet redress for the insult and injury is not denied. 2 Phil. Ec. Cases, 106. Words which impute an offence merely cognizable in a spiritual court may be punished in that court, as calling a person heretic, adulterer, fornicator, whore, &C.; but if the words are coupled with others for which an action at law would lie, as calling a woman a whore and a thief, the ecclesiastical court has no jurisdiction, and a prohibition lies. 2 Roll. Abr. 297. 1 Sid. 404. 3 Mod. 74. 1 Hagg. Rep. 463, in notes. So a suit cannot be instituted in the spiritual court for a written libel, because any slander of a person reduced into writing, and which can be the subject of any proceeding, is actionable or indictable. Comb. 71. Bac. Abr. Courts Ecclesiastical, D. The power of the ecclesiastical court is confined to the infliction of per ance pro salute anima and awarding costs, »nd does not extend to the awarding damages to the injured party. 4 Co. 20. 2 Inst. ♦°1 —Cbittt.

be prohibited from holding plea, "si rector petat versus parochianos oblanones ei decimas debitaj et consuetas:" so that if any dispute arises whether such tithes be due and accustomed, this cannot be determined in the ecclesiastical court, but before the king's court of the common law; as such question affects the temporal inheritance, and the determination must bind the real property. But 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, this is a transient personal injury, for which the remedy may properly be had in the spiritual court; viz., the recovery of the tithes, or their equivalent. By statute 2 & 3 Edw. VI. c. 13, it is enacted, that if any person shall carry off his predial tithes (viz., of corn, hay, or the like) before the tenth part *is duly set forth, r*QG or agreement is made with the proprietor, or shall willingly withdraw L his tithes of the same, or shall stop or hinder the proprietor of the tithes, or his deputy, from viewing or carrying them away; such offender shall pay double the value of the tithes, with costs to be recovered before the ecclesiastical judge, according to the king's ecclesiastical laws. By a former clause of the same statute, the treble value of the tithes, so subtracted or withheld, may be sued for in the temporal courts, which is equivalent to the double value to be sued for in the ecclesiastical. For one may sue for and recover in the ecclesiastical courts the tithes themselves, or a recompense for them, by the antient law; to which the suit for the double value is superadded by the statute. But as no suit lay in the temporal courts for the subtraction of tithes themselves, therefore the statute gave a treble forfeiture, if sued for there; in order to make the course of justice uniform, by giving the same reparation in one court as in the other.(A)' However, it now seldom happens that tithes are sued for at all in tho spiritual court; for if the defendant pleads any custom, modus, composition, or other matter whereby the right of tithing is called in question, this takes it out of the jurisdiction of the ecclesiastical judges: for the law will not suffer the existence of such a right to be decided by the sentence of any single, much loss an ecclesiastical, judge; without the verdict of a jury. But a more summary method than either of recovering small tithes under the value of 40s. is given by statute 748 W. III. c. 6, by complaint to two justices of the peace; and, by another statute of the same year, c. 34, the same remedy is extended to all tithes withheld by Quakers under the value of ten pounds.*

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-foes, for marriages or other ministerial offices of the church: all which injuries are redressed by a decree for their actual *payment. Besides which, all r*oo offerings, oblations, and obventions not exceeding the value of. 40s. may L be recovered in a summary way before two justices of the peace.(t) But care must be taken that these are real and not imaginary dues; for, if they be con

(») 2 Inst 250. (<) Stat-lkSTT. III. c ft.

'This statute enacts that every person shall justly divide, set out, yield, and pay all manner of predial tithes in such manner as they have been of right yielded and paid within forty years, or of right or custom ought to have been paid, before the making of that act, under the forfeiture of treble value of the tithes so carried away; and in an action upon this statute, in which the declaration stated that the tithes were within forty years before the statute yielded and payable, and yielded and paid, it was held that evidence that the land had been, as far as any witness knew, in pasture, and that it was never known to pay in predial tithe, was not sufficient to defeat the action. The ■•me action might also be supported to recover tithes of lands enclosed out of wastes, which never paid tithes before. Mitchell vs. Walker, 5 T. R. 2(30.—Christian.

* The 53 Geo. III. c. 127 extends the jurisdiction of the two justices to tithes, oblations, and compositions, of the value of 10/.; and in respect of tithes and church-rates, due from Quakers, to 50/., see statute and proceedings, Burn, J., Tithes. The 54 Geo. III. c. 68 extends the same provisions to Ireland.—Chitty.

It is hardly necessary to observe that the commutation of tithes, under the provision* ot the statute 6 & 7 W. IV. c. 71 and numerous subsequent statutes, will eventually pu* an end to all suits for the subtraction of tithes.—Stewart.

« PreviousContinue »