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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 [66 ] whom an appeal lies by statute 25 Hen. VIIl. c. 19. to the king in chancery, instead of the pope, as formerly.

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 purposes, and which keep an open office for that purpose (as granting dispensations, licences, 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 to 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 inde. pendence 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 grow. ing 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, (o) that appeals in causes ecclesiastical ought to lie, from the archdeacon to the diocesan; from the diocesan to the arch. bishop of the province; and from the archbishop to the king; and are not to proceed any farther without special licence 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 [67] was ever vigilant to improve all opportunities of extending his jurisdiction hither, at length rivetted 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 ancient 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, by the statute 24 Hen. VIII. c. 12. to all the bishops of the realm, assembled in the upper house of convocation."

m Book II. ch. 32.

n Cod. Vet. leg. 315.

o Chap. 8.

p 4 Inst. 941.

(5) Bac. Ab. Courts, Ecclesiastical Courts. A. 9. (6) No such assembly can exist as all the bishops of the realm in any house of convocation. 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. Šee 1 Book, 280, n. 47. When the

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 commis. sion 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 (q) 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 justitiae; 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 allowed to be courts of record; no more than was another much more favourable jurisdiction, but now deservedly annihilated, viz. the court of the king's high commission in causes ecclesiastical. This court was erected and united to the regal power (r) by virtue of the statute 1 Eliz. c. 1. instead of a larger jurisdiction which had before been exercis

ed under the pope's authority. It was intended to vindicate the dig. [68] nity and peace of the church, by reforming, ordering, and correct

ing the ecclesiastical state and persons, and all manner of errors, heresies, schisms, abuses, offences, contempts, and enormities. Under the shelter of which very 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 Hen. VII., 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. (s) 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

૧ Ibid.

r Ibid. $24.

s 1 Lev. 230. Show. Parl. Cas. 60.

t 4 Inst. 125.

delegates are equally divided in opinion, so that no judgment can be pronounced, a commission of adjuncts may issue. See an instance referred to in 4 Burr. 2254. A commission of review was applied for in the court of chancery in 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. Jun. 186.Mr. Christian's note.

(7) Bac. Ab. Courts, Ecclesiastical Courts, A. 10.

(8) 3 Atk. 197.

(9) Com. Dig. Courts, E. Bac. Ab. Courts, Court of Constable and Earl Marshal. As to courts martial and the modern practice of proceeding therein, see M'Arthur and Ady on Courts Martial, &c. and see ante, 1 Book, 417. n. 1.

(10) For the cognizance of this court, and its proceedings in general, see post 103 to 106.

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 determine all maritime injuries, arising upon the seas, or in parts out

of the reach of the common law, are only the court of admiralty, [ 69 ] 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, like 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 sentences of the admiralty judge an appeal always lay, in ordinary course, to 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 admiral-court." 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 plan. tations 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;12 by which particular courts are established in all the ma. ritime countries of Europe for the decision of this question, whether law. ful prize or not: 13 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 which this question is permitted in England, is the court of admi. [70] ralty ;" and the court of appeal is in effect the king's privy council, the


u 7 Mod. 127.

w Gloss. 13.

x Archeion. 41. *

(11) For the cognizance of this court, and its proceedings in general, see post Com. Dig. Admiralty Courts; Bac. Ab. High Court of Admiralty. 2 B. & C. 244. 177.

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106 to 109,

3 D. & R.

(12) For these treaties, see 2 Chit. Com. Law, post 2. 1 to 313. (13) And 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. c. 67. ` 1 Wils. 229. 4 Rob. 55.

Chitty. (14) This seems incorrect, for questions of this nature are tried in the prize court, which is 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. See Dougl. 594. The judge of the admiralty court, though also the judge of the prize court, is appointed by a commission un der the great seal, which enumerates particularly, as well as generally, every object of his juris diction, but not a word of prize. See Dougl. 614. The judge of the prize court is appointed, and the court authorized, by a commission 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 surro gates, 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. Chitty.

members of which are, in consequence of treatise, commissioned under the great seal for this purpose. In 1748, for the more speedy determination of appeals, the judges of the courts of Westminster-hall, though not privy counsellors, were added to the commission them in being. But doubts being conceived concerning the validity of that commission, on ac, count 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 of that war, the commission of appeals was regularly attended and all its decisions conducted by a judge, is whose masterly acquaintance with the law of nations was known and revered by every state in Europe. (y)



In the two preceding chapters we have considered the several courts, whose jurisdiction is public and general; and which are so contrived 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 the 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 green-swerd and to the covert in which such deer are lodged. These are the courts of attachments, of regard, of sweinmote, and of justice-seat. The court of attachments, woodmotes, 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; (b) who 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 so 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 in their attachments, or presentments de viridi et venatione; and the verderors are to receive the same, and to enrol them, and to certify them under their seals to the court of justice-seat, or sweinmote : (d) for this

y See the sentiments of the president Montesquieu, and M. Vattel (a subject of the king of Prussia), on the answer transmitted by the English court to his Prussian majesty's Exposition des motifs, &c. A. D. 1753. (Montesquieu's letters; 5 Mar. 1753. Vattel's droit de gens, l. 2. c. 7. § 84.) a Cart. de forest, 9 Hen. III. c. 8. b 4 Inst. 289. c Carth. 79.

(15) "Lord Mansfield."

d Cart. de forest. c. 16.

(1) For the forest laws, see ante, 2 Book, 416. 4 Book, 415. 123. and see Com. Dig. Chase, R. 1, 2. Bac. Ab. Courts, Courts of the Forest.

court can only inquire of, but not convict offenders. The court of regard, or survey of dogs, is to be holden every third year for the lawing or expedita tion of mastiffs, which is done by cutting off the claws and ball (or pelote) of the fore-feet, to prevent them from running after deer. (e) [ 72 ] No other dogs 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 the 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 sweinmote thrice in every year, (g) 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 "forestae; et de eorum oppressionibus populo regis illatis ;" and secondly, to receive and try presentments certified from the court of attachment against offences in vert and venison. (h) And this court may not only inquire, but convict also, which conviction shall be certified to the court of justice-seat under the seals of the jury; for this court cannot pro ceed to judgment. (i) But the principal court is, 4. The court of justice-seat, which is held before the chief justice in eyre, or chief itinerant judge, capitalis justitiarius in itinere, or his deputy; to hear and determine all trespasses within the forest, and all claims of franchises, liberties, and privileges, and all pleas and causes whatsoever therein arising. (k) It may also proceed to try presentments in the inferior courts of the forests, and to give judgment upon conviction of the sweinmote. And the chief justice may therefore after presentment made, or indictment found, but not before, (7) issue his warrant to the officers of the forest to apprehend the offenders. It may be held every third year; and forty days' notice ought to be given of its sitting. This court may fine and imprison for offences within the forest, (m) it being a court of record: and therefore a writ of error lies from hence to the court of king's bench, to rectify and redress any mal-administrations of justice; (n) or the chief justice in eyre may adjourn any matter of law into the court of king's bench. (o) These [73 ] justices in eyre were instituted by king Henry II., A. D. 1184; (p)" and their courts were formerly very regularly held; but the last court of justice-seat of any note was that holden in the reign of Charles I., before the earl of Holland; the rigorous proceedings at which are reported by sir William Jones. After the Restoration another was held, pro forma only, before the earl of Oxford; (q) but since the æra of the Revolution in 1688, the forest laws have fallen into total disuse, to the great advantage of the subject.3

II. A second species of restricted courts is that of commissioners of

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(2) By the 57 Geo. III. c. 61. the offices of these justices are abolished on the termination of their then existing interests; and the salaries of the abolished officers are to make part of the consolidated fund.

(3) All the forests which were made after the conquest, except New Forest in Hampshire, created by William the Conqueror, were disafforested by the charta de foresta. The forest of Hampton-court was established by the authority of parliament in the reign of Hen. VIII. The number of forests in England is sixty-nine. 4 Inst. S19. Charles I. enforced the odious forest laws, as a source of revenue independent of the parliament. Christian.


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