Sivut kuvina

der or administer to any person whatsoever, the oath usually called the oath ex officio, or any other oath whereby he may be compelled to confess accuse, or purge himself of any criminal matter or thing, whereby he may be liable to any censure or punishment. 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 thereupon forms his interlocutory decree or definitive sentence at his own discretion: from which there generally lies an appeal, in the severa stages mentioned in a former chapter (t); though if the same be not appealed from in fifteen days, it is final, by the statute 25 Hen. VIII. c. 19

But the point in which these jurisdictions are the most defecurve, is that of enforcing their sentences when pronounced; for which they have no other process but that of excommunication; which is described (u) 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 farther, and excludes him not only from these, but also from the company of all christians. But, if the judge of any spiritual court excommunicates a man for a cause of which he hath not the legal cognizance, the party may have an action against him at common law, and he is also liable to be indicted at the suit of the king (w). Heavy as the penalty of excommunication 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 railing or con tumelious words, 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 sup- [102] porting hand to an otherwise tottering authority. Imitating herein the policy of our British ancestors, among whom, according to Cæsar (x), whoever were interdicted by the Druids from their sacrifices, “in nu mero impiorum ac sceleratorum habentur: ab iis omnes decedunt, aditum eorum sermonemque defugiunt, ne quid ex contagione incommodi accipiant: neque iis petentibus jus redditur, neque honos ullus communicatur." And so with us by the common law an excommunicated person is disabled to do any act, that is required to be done by one that is probus et legalis homo. He cannot serve upon juries, cannot be a witness in any court, and, which is the worst of all, cannot bring an action, either real or personal, to recover lands or money due to him (y). Nor is this the whole for if, within forty days after the sentence has been published in the church, the offender does not submit and abide by the sentence of the spiritual court, the bishop may certify such contempt to the king in chancery. Upon which there issues out a writ to the sheriff of the county, called, from the bishop's certificates, a significavit; or from its effects a writ de excommunicato capiendo and the sheriff shall thereupon take the offender, and imprison him in the county gaol, till he is reconciled to the church, and such reconciliation certified by the bishop; under which another writ, de excommunicato deliberando, issues out of chancery to deliver and release him (2) (15). This

(t) Chap. 5.
(a) Co Litt. 133

(w) 2 Inst. 623

(x) de bello Gall. 1. 6.

(y) Litt. 201.

(s) F. N. B. 62.

(15) See alteration by statute 53 Geo. III. c. 127. ante, note 14. p. 100.

[blocks in formation]

process seekis founded on the charter of separation (so often referred to) o William the Conqueror. "Si aliquis per superbiam elatus ad justitiam pis copalem venire noluerit, vocetur semel, secundo, et tertio: quod si nec ad emen dationem venerit, excommuniceter; et, si opus fuerit, ad hoc vindicandum forti tudo et justitia regis sive vicecomitis adhibeatur." And in case of subtraction of tithes, a more summary and expeditious assistance is given by the sta tutes of 27 Hen. VIII. c. 20. and 32 Hen. VIII. c. 7. which enact, that upon complaint of any contempt or misbehaviour of the ecclesiastical judge by the defendant in any suit for tithes, any privy counsel. [*103] lor, or any two justices of the peace (or, in case of disobedienc: to a definitive sentence, any two justices of the peace), may commit the party to prison without bail or mainprize, till he enters into a recognizance with sufficient sureties to give due obedience to the process and sentence of the court. These timely aids, which the common and statute laws have lent to the ecclesiastical jurisdiction, may serve to refute that groundless notion which some are too apt to entertain, that the courts at Westminster-hall are at open variance with those at doctors' commons. It is true that they are sometimes obliged to use a parental authority, in correcting the excesses of these inferior courts, and keeping them within their legal bounds; but, on the other hand, they afford them a parental assistance in repressing the insolence of contumacious delinquents, and rescuing their jurisdiction from that contempt, which for want of sufficient compulsive powers would otherwise be sure to attend it (16). II. I am next to consider the injuries cognizable in the court military, or court of chivalry (17). The jurisdiction of which is declared by statute 13 Ric. II. c. 2. to be this: "that it hath cognizance of contracts touching deeds of arms or of war, out of the realm, and also of things which touch war within the realm, which cannot be determined or discussed by the common law; together with other usages and customs to the same matters appertaining." So that wherever the common law can give redress, this court hath no jurisdiction which has thrown it entirely out of use as to the matter of contracts, all such being usually cognizable in the courts of Westminster-hall, if not directly, at least by fiction of law: as if a contract be made at Gibraltar, the plaintiff may suppose it made at Northampton; for the locality, or place of making it, is of no consequence with regard to the validity of the contract.

The words, "other usages and customs," support the claim of this court, 1. To give relief to such of the nobility and gentry as think them

selves aggrieved in matters of honour; and 2. To keep up the dis[104] tinction of degrees and *quality. Whence it follows, that the civil

jurisdiction of this court of chivalry is principally in two points; the redressing injuries of honour, and correcting encroachments in matters of coat armour, precedency, and other distinctions of families.

As a court of honour, it is to give satisfaction to all such as are aggriev ed in that point; a point of a nature so nice and delicate, that its wrongs

(16) In the ecclesiastical courts the maxim s, that nullum tempus occurrit ecclesiæ, or that here is no limitation to a prosecution for a spiritual offence; and it was thought a great grievance, that the peace of families might be listurbed by a prosecution for a crime of incontinence committed many years before; it was therefore enacted by the 27 Geo. III. c. that no prosecution should be commenced

in the spiritual courts for defamation after sis months; or for fornication or incontinence, or for striking or brawling in a church or church yard, after eight months; and that, in no case, parties who had intermarried should be prosecuted for their previous fornication.

(17) There being not tles of nobility in the U. S. there is no such curt re

and injuries escape the notice of the common law, and yet are fit to be redressed somewhere. Such, for instance as calling a man a coward, or giving him the lie; for which, as they are productive of no immediate damage to his person or property, no action will lie in the courts at Westminster and yet they are such injuries as will prompt every man of spirit to demand some honourable amends, which by the ancient law of the land was appointed to be given in the court of chivalry (a). But modern resolutions have determined, that how much soever such a jurisdiction may be expedient, yet no action for words will at present lie therein (b). And it hath always been most clearly holden (c), that as this court connot meddle with any thing determinable by the common law, it therefore can give no pecuniary satisfaction or damages, inasmuch as the quantity and determination thereof is ever of common law cognizance. And therefore this court of chivalry can at most only order reparation in point of honour; as, to compel the defendant mendacium sibi ipsi imponere, or to take the lie tha: he has giver. upon himself, or to make such other submission as the laws of honour may require (d). Neither can this court, as to the point of re paration in honour, hold plea of any such word or thing, wherein the party is relievable by the courts of common law. As if a man gives another a blow, or calls him thief or murderer; for in both these cases the common law has pointed out his proper remedy by action.

As to the other point of its civil jurisdiction, the redressing [105] of encroachments and usurpations in matters of heraldry and coat-armour: it is the business of this court, according to sir Matthew Hale, to adjust the right of armorial ensigns, bearings, crests, supporters, pennons, &c.; and also rights of place or precedence, where the king's patent or act of parliament (which cannot be over-ruled by this court) have not already determined it.

The proceedings in this court are by petition, in a summary way; and the trial not by a jury of twelve men, but by witnesses, or by combat (e). But as it cannot imprison, not being a court of record, and as by the re solutions of the superior courts it is now confined to so narrow and restrained a jurisdiction, it has fallen into contempt and disuse. The marshalling of coat-armour, which was formerly the pride and study of all the best families in the kingdom, is now greatly disregarded; and has fallen into the hands of certain officers and attendants upon this court, called heralds, who consider it only as a matter of lucre, and not of justice: whereby such falsity and confusion have crept into their reeords, (which ought to be the standing evidence of families, descents, and coat-armour), that, though formerly some credit has been paid to their testimony, now even their com non seal will not be received as evidence in any court of justice in the kingdom (f). But their original visitation books, compiled when progresses were solemnly and regularly made into every part of the kingdom, to inquire into the state of families, and to register such marriages and descents as were verified to them upon oath, are allowed to be good evidence of pedigrees (g). And it is much to be wished, that this practice of visitation at certain periods were revived; for the failure of inquisitions post mortem, by the abolition of military tenures, combined with the negligence of the heralds in omitting their usual progresses, has rendered the proof

(a) Year-book, 37 Hen. VI. 21. Se.den of duels, . 10. Hal. hist. C. L. 37.

'6) Salk. 533 7 Mod. 125. 2 Hawk. P. C. 11 (c) Hal. hist. C. I.. 37.

(d) 1 Roll. Abr. 128.

(e) Co. Litt. 261.

(f) 2 Roll Abr. 696 2 Jon 294
(g) Comb. 63.

[106] of a modern descent, *for the recovery of an estate or 8.acces sion to a title of honour, more difficult than that of an ancient This will be indeed remedied for the future with respect to claims of peerage, by a late standing order (h) of the house of lords; directing the heralds to take exact accounts, and preserve regular entries of all peers and peeresses of England, and their respective descendants; and that an exact pedigree of each peer and his family shall, on the day of his first admission, be delivered to the house by garter, the principal king-at-arms. But the general inconvenience, affecting more private successions, still con tinues without a remedy.


III. Injuries cognizable by the courts maritime, or admiralty courts, are the next object of our inquiries (18). These courts have jurisdiction and power to try and determine all maritime causes; or such injuries, which, though they are in their nature of common law cognizance, yet being committed on the high seas, out of the reach of our ordinary courts of justice, are therefore to be remedied in a peculiar court of their own. admiralty causes must be therefore causes arising wholly upon the sea, and not within the precincts of any county (i) (19). For the statute 13 Ric. II. c. 5. directs that the admiral and his deputy shall not meddle with any thing, but only things done upon the sea; and the statute 15. Ric. II. c. 3. declares that the court of the admiral hath no manner of cognizance of any contract, or of any other thing, done within the body of any county, either by land or water; nor of any wreck of the sea: for that must be cast on land before it becomes a wreck (j). But it is otherwise of things flotsam, jetsam, and ligan; for over them the admiral hath jurisdiction, as they are in and upon the sea (k). If part of any contract, or other cause of action, doth arise upon the sea, and part upon the land, the common law excludes the admiralty court from its jurisdiction; for, part belonging

properly to one cognizance and part to another, the common or [107] general law takes place of the particular (1). Therefore, though pure maritime acquisitions, which are earned and become due on the high seas, as seamen's wages, are one proper object of the admiralty jurisdiction, even though the contract for them be made upon land (m): yet, in general, if there be a contract made in England and to be executed upon the seas, as a charter-party or covenant that a ship shall sail to Jamaica, or shall be in such a latitude by such a day; or a contract made upon the sea to be performed in England, as a bond made on shipbord to pay money in London or the like; these kinds of mixed contracts belong not to the admiralty jurisdiction, but to the courts of common law (n). And indeed it hath been farther holden, that the admiralty court -annot hold plea of any contract under seal (o) (20).

(h) 11 May, 1767.

(i) Co Litt. 260. Hob. 79. (j. See book I. ch. 8.

(k) 5 Rep. 106.

(18) See note 14, p. 29. as to the admiralty power of the U. S. courts.

(19) See much learning respecting the jurisdiction of the court of admiralty in the case of Le Caux v. Eden, Doug. 572.

(20) The case cited scarcely warrants the text. For the Admiralty has jurisdiction over an hypothecation-bond, although it was executed on land and under seal. Manetone v. Gibbons, 3 T. R. 26. Cases which are said

(1) Co. Litt. 261

(m) 1 Ventr. 146.

(n) Hob. 12. Hal. hist. C. L. 35.
(0) Hob. 212.

to have determined the point mentioned in the
text occurred upon seaman's wages; over
which the Admiralty had undoubted jurisdic-
tion, but in such it was ruled that the special
agreement took it away. See Howe v. Nap
pier, 4 Burr. 1950, cited in and in effect over
ruled by Manetone v. Gibbons. The cases
which have been mentioned in addition to thai
cited from Hob. 212, and Howe v Nappier
are Day v. Searle, 2 Str. 968, and Upy ▼ ́Ad

And also, as the courts of common law have obtained a concurrent ju nsdiction with the court of chivalry with regard to foreign contracts, by supposing them made in England; so it is no uncommon thing for a plaintiff to feign that a contract, really made at sea, was made at the royal exchange, or other inland place, in order to draw the cognizance of the suit from the courts of admiralty to those of Westminster-hall (p). This the civilians exclaim against loudly, as inequitable and absurd; and sir Thomas Ridley (9) hath very gravely proved it to be impossible, for the ship in which such cause of action arises to be really at the royal exchange in Cornhill. But our lawyers justify this fiction, by alleging (as before) that the locality of such contracts is not at all essential to the merits of them; and that learned civilian himself seems to have forgotten how much such fictions are adopted and encouraged in the Roman law: that a son killed in battle is supposed to live for ever for the benefit of his parents (7); and that, by the fiction of postliminium and the lex Cornelia, captives, when freed from bondage, were held to have never been prisoners (s), and such as died in captivity were supposed to have died in their own country (t).

*Where the admiral's court hath not original jurisdiction of the [*108] cause, though there should arise in it a question that is proper for the cognizance of that court, yet that doth not alter nor take away the exclusive jurisdiction of the common law (u). And so vice versa, if it hath jurisdiction of the original, it hath also jurisdiction of all consequential questions, though properly determinable at common law (v). Wherefore, among other reasons, a suit for beaconage of a beacon standing on a rock in the sea may be brought in the court of admiralty, the admiral having an original jurisdiction over beacons (w). In case of prizes also in time of war, between our own nation and another, or between two other nations, which are taken at sea, and brought into our ports, the courts of admiralty have an undisturbed and exclusive jurisdiction to determine the same according to the law of nations (x).

The proceedings of the courts of admiralty bear much resemblance to those of the civil law, but are not entirely founded thereon: and they likewise adopt and make use of other laws, as occasion requires; such as the khodian laws and the laws of Oleron (y). For the law of England, as bas frequently been observed, doth not acknowledge or pay any deference to the civil law considered as such; but merely permits its use in such cases where it judged its determinations equitable, and therefore blends it, in the present instance, with other marine laws: the whole being correctea, altered, and amended by acts of parliament and common usage; so that out of this composition a body of jurisprudence is extracted, which owes its authority only to its reception here by consent of the crown and people. The first process in these courts is frequently by arrest of the detendant's person (2); and they also take recognizances or stipulations of certain fidejussors in the nature of bail (a), and in case of default may

[blocks in formation]
« EdellinenJatka »