recognitions or assises; the most difficult of which they are directed to adjourn into the court of common pleas to be there determined. The itinerant justices were sometimes mere justices of assise or of dower, or of gaol-delivery, and the like; and they had sometimes a more general commission, to determine all manner of causes, being constituted justiciarii ad omnia placita: (p) but the present justices of assise and nisi prius are more immediately derived from the statute West. 2. 18 Edw. I. c. 30. which directs them to be assigned out of the king's sworn justices, associating to themselves one or two discreet knights of each county. By statute 27 Edw. I. c. 4. (explained by 12 Edw. II. c. 3.) assises and inquests were allowed to be taken before any one justice of the court in which the plea was brought; associating to him one knight or other approved man of the county. And, lastly, by statute 14 Edw. III. c. 16. inquests of nisi prius may be taken before any justice of either bench (though the plea be not depending in his own court), or before the chief baron of the exchequer, if he be a man of the law or otherwise before the justices of assise, so that one of such justices be a judge of the king's bench or common pleas, or the king's serjeant sworn. They usually make their circuits in the res pective vacations after Hilary and Trinity terms; assises being allowed to be taken in the holy time of lent by consent of the bishops at the king's request, as expressed in statute Westm. 1. 3 Edw. I. c. 51. And it was also usual during the times of popery, for the prelates to grant annual licences

45

to the justices of assise to administer oaths in holy times; for [60] oaths being of a sacred nature, the logic of those deluded ages con.

cluded that they must be of ecclesiastical cognizance. (q) The prudent jealousy of our ancestors ordained, (r) that no man of law should be judge of assise in his own county, wherein he was born or doth in babit : and a similar prohibition is found in the civil law, (s) which has carried this principle so far that it is equivalent to the crime of sacrilege, for a man to be governor of the province in which he was born, or has any civil connexion. (1)

The judges upon their circuits now sit by virtue of five several autho, rities. 1. The commission of the peace. 2. A commission of oyer and terminer. 3. A commission of general gaol-delivery. The consideration of all which belongs properly to the subsequent book of these commentaries. But the fourth commission is, 4. A commission of assise, di. rected to the justices and serjeants therein named, to take (together with their associates) assises in the several counties; that is, to take the verdict of a peculiar species of jury, called an assise, and summoned for the trial of landed disputes, of which hereafter. The other authority is, 5. That of nisi prius, which is a consequence of the commission of assise, (u) be,

p Bract. 1.3. tr. 1. c. 11.

4 Instances hereof may be met with in the appendix to Spelman's original of the terms, and in MFParker's Antiquities. 209. r Stat. 4 Edw. III. c. 2. 3 Rich. II. c. 2. 33 Hen. VIII. c. 24. u Salk. 454.

Ff. 1, 22, 3,

1 C. 9. 29. 4.

(45) And now by 1 Geo. IV. c. 55. sect. 5. any judge or baron may, on his circuit, amend a record, and make any order in any cause, although it was not in a suit depending in his own

court.

(46) This restriction was construed to extend to every commission of the judges: but it being found very inconvenient, the 12 Geo. II. c. 27. was enacted for the express purpose of authorizing the commissioners of oyer and terminer, and of gaol-delivery, to execute their commissions in the criminal courts within the counties in which they were born, or in which they reside. See 4 Book, 271. This restriction, as to commissioners of assize and nisi prius, was taken off by the 49 Geo. III. c. 91. Christian.

ing annexed to the office of those justices by the statute of Westm. 2. 13 Edw. I. c. 30. and it empowers them to try all questions of fact issuing out of the courts of Westminster, that are then ripe for trial by jury. These by the course of the courts (w) are usually appointed to be tried at Westminster in some Easter or Michaelmas term, by a jury returned from the county wherein the cause of action arises; but with this proviso, nisi prius, unless before the day prefixed the judges of assise come into the county in question. This they are sure to do in the vacations preceding each Easter and Michaelmas term, which saves much expense and trouble. These commissions are constantly accompanied by writs of association, in pursuance of the statutes of Edward I. and II. before [59*] mentioned; whereby certain persons (usually the clerk of assise and his subordinate officers) are directed to associate themselves with the justices and serjeants, and they are required to admit the said persons into their society, in order to take the assises, &c. ; that a sufficient supply of commissioners may never be wanting. But, to prevent the delay of justice by the absence of any of them, there is also issued of course a writ of si non omnes; directing that if all cannot be present, any two of them (a justice or a serjeant being one) may proceed to execute the commission.

These are the several courts of common law and equity, which are of public and general jurisdiction throughout the kingdom. And, upon the whole, we cannot but admire the wise economy and admirable provision of our ancestors, in settling the distribution of justice in a method so well calculated for cheapness, expedition, and ease. By the constitution which they established, all trivial debts, and injuries of small consequence, were to be recovered or redressed in every man's own county, hundred, or perhaps parish. Pleas of freehold, and more important disputes of property, were adjourned to, the king's court of common pleas, which was fixed in one place for the benefit of the whole kingdom. Crimes and misdemesnors were to be examined in a court by themselves; and matters of the revenue in another distinct jurisdiction. Now indeed, for the ease of the subject and greater dispatch of causes, methods have been found to open all the three superior courts for the redress of private wrongs; which have remedied many inconveniences, and yet preserved the forms and boundaries handed down to us from high antiquity. If facts are disputed, they are sent down to be tried in the country by the neighbours; but the law, arising upon those facts, is determined by the judges above: and if they are mistaken in point of law, there remain in both cases two successive courts of appeal, to rectify such their mistakes. If the rigour of general rules does in any case bear hard upon individuals, courts of equity are open to supply the defects, but not sap the fundamentals, of the law. Lastly, there presides over all one great court of appeal, which is the last resort in mat- [60*] ters both of law and equity; and which will therefore take care to preserve an uniformity and equilibrium among all the inferior jurisdictions : a court composed of prelates selected for their piety, and of nobles advanced to that honour for their personal merit, or deriving both honour and merit

w See ch. 23. p. 35s. ·

(47) An important act, the 3 Geo. IV. c. 10. was lately passed to remedy the defect of the commission, not being opened on the day appointed; by which it is enacted, that the commission may be opened on the succeeding day to the one appointed; and if such succeeding day be a Sunday, or any other day of public rest, then on the next following day, provided the opening the commission on the appointed day was prevented by the pressure of business elsewhere, or by some unforeseen cause or accident. Chitty.

VOL. II.

7

from an illustrious train of ancestors: who are formed by their education, interested by their property, and bound upon their conscience and honour, to be skilled in the laws of their country. This is a faithful sketch of the English juridical constitution, as designed by the masterly hand of our forefathers, of which the great original lines are still strong and visible; and, if any of its minuter strokes are by the length of time at all obscured or decayed, they may still be with ease restored to their pristine vigour : and that not so much by fanciful alterations and wild experiments (so frequent in this fertile age), as by closely adhering to the wisdom of the ancient plain, concerted by Alfred, and perfected by Edward I., and by at tending to the spirit, without neglecting the forms, of their excellent and venerable institutions.

CHAP. V.

OF COURTS ECCLESIASTICAL, MILITARY,
AND MARITIME.

BESIDES the several courts which were treated of in the preceding chapter, and in which all injuries are redressed, that fall under the cognizance of the common law of England, or that spirit of equity, which ought to be its constant attendant, there still remain some other courts of a jurisdiction equally public and general; which take cognizance of other species of injuries, of an ecclesiastical, military, and maritime nature; and therefore are properly distinguished by the title of ecclesiastical courts, courts military, and courts maritime.

I. Before I descend to consider particular ecclesiastical courts,' I must first of all in general premise, that in the time of our Saxon ancestors there was no sort of distinction between the lay and the ecclesiastical jurisdiction the county-court was as much a spiritual as a temporal tribunal : the rights of the church were ascertained and asserted at the same time, and by the same judges, as the rights of the laity. For this purpose the bishop of the diocese, and the alderman, or in his absence the sheriff of the county, used to sit together in the county-court, and had there the cognizance of all causes, as well ecclesiastical as civil: a superior deference being paid to the bishop's opinion in spiritual matters, and to that of the lay

judges in temporal. (a) This union of power was very advantageous [62] to them both the presence of the bishop added weight and reve

rence to the sheriff's proceedings; and the authority of the sheriff was equally useful to the bishop, by enforcing obedience to his decrees in such refractory offenders, as would otherwise have despised the thunder of mere ecclesiastical censures.

But so moderate and rational a plan was wholly inconsistent with those views of ambition, that were then forming by the court of Rome. It soon

a Celeberrimo huic conventui, fepiscopus et aldermannus inter sunto; quorum alter jura divina, alter humana populum edoceto. LL. Eadgar. c. 5.

(1) See in general, Com. Dig. Courts, N.; Bac. Ab. Courts, of the Ecclesiastical Courts.

became an established maxim in the papal system of policy, that all eccle. siastical persons, and all ecclesiastical causes should be solely and entirely subject to ecclesiastical jurisdiction only: which jurisdiction was supposed to be lodged in the first place and immediately in the pope, by divine inde. feasible right and investiture from Christ himself; and derived from the pope to all inferior tribunals. Hence the canon law lays it down as a rule, that "sacerdotes a regibus honorandi sunt, non judicandi :" (b) and places an emphatic reliance on a fabulous tale which it tells of the emperor Constantine; that when some petitions were brought to him, imploring the aid of his authority against certain of his bishops, accused of oppression and injustice, he caused (says the holy canon) the petitions to be burnt in their presence, dismissing them with this valediction; "ite et inter vos causas "vestras discutite, quia dignum non est ut nos judicemus Deos." (c)

It was not however till after the Norman conquest, that this doctrine was received in England; when William I. (whose title was warmly espoused by the monasteries, which he liberally endowed, and by the foreign clergy, whom he brought over in shoals from France and Italy, and planted in the best preferments of the English church), was at length prevailed upon to establish this fatal encroachment, and separate the ecclesiastical court from the civil: whether actuated by principles of bigotry, or by those of a more refined policy, in order to discountenance the laws of king Edward, abounding with the spirit of Saxon liberty, is not altogether [ 63 ] certain. But the latter, if not the cause, was undoubtedly the consequence of this separation : for the Saxon laws were soon overborne by the Norman justiciaries, when the county-court fell into disregard by the bishop's withdrawing his presence, in obedience to the charter of the conqueror: (d) which prohibited any spiritual cause from being tried in the secular courts, and commanded the suitors to appear before the bishop only, whose decisions were directed to conform to the canon law. (e)

King Henry the First, at his accession, among other restorations of the laws of king Edward the Confessor, revived this of the union of the civil and ecclesiastical courts. (f) Which was, according to sir Edward Coke, (g) after the great heat of the conquest was past, only a restitution of the ancient law of England. This however was ill relished by the popish clergy, who, under the guidance of that arrogant prelate, archbishop Anselm, very early disapproved of a measure that put them on a level with the profane laity, and subjected spiritual men and causes to the inspection of the secular magistrates: and therefore in their synod at Westminster, 3 Hen. I. they ordained that no bishop should attend the discussion of temporal causes; (h) which soon dissolved this newly effected union. And when, upon the death of king Henry the First, the usurper Ste. [64] phen was brought in and supported by the clergy, we find one arti cle of the oath which they imposed upon him was, that ecclesiastical per. sons and ecclesiastical causes should be subject only to the bishop's juris

b Decret. part. 2. caus. 11. qu. 1. c. 41.

c lbid.

d Hale Hist. C. L. 102. Selden in Eadm. p. 6. l. 24. 4 Inst. 259. Wilk. LL. Angl. Sax, 292. e Nullus episcopus vel archidiaconus delegibus episcopalibus amplius in hundret placita teneant, nec causam, quae ad regimen animarum per tinet, ad judicium secularium hominum adducant : sed quicunque secundum episcopales leges, de quacunque causa vel culpa interpellatus fuerit, ad locum, quem ad hoc episcopus elegerit et nominaverit, veniat; ibique de causa sua respondeat; et non secundum hundret, sed secundum canones et episcopales leges, rectum Deo et episcopo suo faciat.

f Volo praecipio, ut omnes de comitatu, eant ad comitatus et hundreda, sicut fecerint tempore regis Ed. wardi. (Cart. Hen, I. in Spelm. cod. vet legum. 305.) And what is here obscurely hinted at, is fully explained by his code of laws extant in the red book of the exchequer, though in general but of doubtful authority. cap. 8. Generalia comitatuum placita certis locis et vicibus teneantur. Intersint autem episcopi, comites, &c.; et agantur primo debita verae christianitatis jura, secundo regis placita, postremo causae singu. lorum dignis satisfactionibus expleantur. g 2 Inst. 70.

h Ne episcopi saecularium placitorum officium suscipiant. Spelm. Cod. 301.

diction. (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 (curiae christianitatis), I shall begin with the lowest, and so ascend gradually to the supreme court of appeal. (7) 2

1. The archdeacon's court is the most inferior court in the whole eccle. siastical polity. It is held in the archdeacon's absence before a judge ap. pointed 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.

The consistory court of every diocesan bishop is held in their several ca. thedrals, 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; [65] because he anciently held his court in the church of Saint Mary le

bow (sancta Maria de arcubus), though all the principal spiritual courts are now holder 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.

3

4. The court of peculiars is a branch of and annexed to the court of 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 now 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

i Spelm. Cod. 310.

k See Book. I. introd. § 1.

1 For further particulars see Burn's ecclesiastical law, Wood's institute of the common law, and Oughton's ordo judiciorum.

(2) For the cognizance and proceedings of ecclesiastical courts, see post, 87 to 103.

(3) Bac. Ab. Courts, Ecclesiastical Courts, A. 6.

(4) Com. Dig. Courts, N. 2. Bac. Ab. Courts, Ecclesiastical Courts, A. 3.