accompanied by writs of association, in pursuance of the statutes of Edward I and II, before mentioned; whereby certain persons (usually the clerk of assize 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 assizes, &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 (if not all); directing that if all cannot be present, any two of them (a justice or a serjeant being one) may proceed to execute the commission.

Resume' of judicial establishment.-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, [*60] 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 misdemeanors 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 neighbors; 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 matters 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 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 the country. This is a faithful sketch of the English juridical constitution, as designed by the masterly hands 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 ad

hering to the wisdom of the ancient plan, concerted by Alfred and perfected by Edward I, and by attending to the spirit, without neglecting the forms, of their excellent and venerable institutions.1

*CHAPTER 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

exceed $2000; and from the supreme court of the District of Columbia and

1. The senate as a court of impeach from the court of claims, where the

amount in controversy exceeds $3000; and in any other case where the judg ment or decree may present a constitutional question or furnish a prece dent for a class of cases, the United States may appeal without regard to

7. The supreme court of the District the amount in controversy. of Columbia.

other courts of a jurisdiction equally public and general; which take cognizance of other species of injuries, of an ecclesiatical, military and maritime nature; and therefore are properly distinguished by the title of ecclesiastical courts, courts military, and courts maritime.

I. Under the Saxons.- 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 to them both; the presence of the [*62] *bishop added weight and reverence to the sheriff's proceedings; and the authority of the sheriff was equally useful to the bishop,

(a) Celeberrimo huic conventui episcopus et aldermannus intersunto; quorum alter jura divina, alter humana populum edoceto. (Let the bishop and alderman be present at this illustrious assembly; of whom let the one instruct the people in divine, the other in human laws.) L. L. Eadgar. c. 5.

the United States; and of all seizures on land or water under the laws of the United States, and of all suits for penalties and forfeitures incurred under those laws. They have also jurisdiction concurrently with the state courts and circuit courts, of all cases where an alien sues for a tort, done in violation of the law of nations or of a treaty of the United States; also of all suits at common law where the United States or any officer thereof, under the authority of an act of congress, may sue; also exclusive of the state courts of all suits against consuls or vice-consuls except for capital offences. These courts also have jurisdiction in bankruptcy cases.

The territorial courts possess such powers as are specially conferred upon them by the acts providing for their creation.

The supreme court of the District of Columbia is a court of general jurisdiction in law and equity: any one of its judges may hold a district court with the powers of the other district courts; and may also hold a criminal court for the trial of all crimes and offences arising within the district. From the special terms held by one judge appeals may be taken to the general term held by all or a quorum of all.

The court of claims has authority to hear and determine all claims founded upon any law of congress or regulation

of the executive department, or upon any contract, express or implied, with the government of the United States, and all claims which may be referred to it by congress; also all set-offs, counter claims, claims for damages liquidated or unliquidated, or other demands whatsoever on the part of the government, against any person making claim against the government in said court.

The supreme court consists of one chief justice and eight associate justices, appointed by the president, by and with the advice and consent of the senate, during good behavior.

There are nine judicial circuits, for each of which a circuit judge is appointed in like manner and with the like tenure. The circuit courts are held by one justice of the supreme court and the circuit judge, or by the latter and the district judge, or may be held by any one of the three sitting alone. Where two sit together and disagree in opinion, the point of disagreement is certified to the supreme court for its decision.

There is one district court for each state, and in some states, two or more. Each district has a district judge appointed in the same manner and for the same term as the justices of the supreme court. The supreme court of the District of Columbia consists of four justices, and the court of claims of five, with the like tenure.

by enforcing obedience to his decrees in such refractory offenders, as would otherwise have despised the thunder of mere ecclesiastical

censures.

Ecclesiastical jurisdiction.- 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 became an established maxim in the papal system of policy, that all ecclesiastical 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 indefeasible 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" (priests are to be honoured, not judged, by kings); (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" (go and discuss your causes among yourselves, for it is not fit that we should judge Gods). (c)

Introduction in England.-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 *certain. But the latter, if [*63] 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

(b) Decret. part 2, cause. 11; qu. 1, c. 41.

(c) Ibid.

(d) Hale Hist. C. L. 102. Selden, in Eadm. p. 6, l. 24. 4 Inst. 259. Wilk. LL. Angl. Sax. 292. (e) Nullis episcopus vel archidiaconus de legibus episcopalibus amplius in hundred placita teneant, nec causam, quæ ad regimen animarum pertinet, 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 vel culpa sua respondeat; et non secundum hundred, sed secundum canones et episcopales leges, rectum Deo et episcopo suo faciat. (No bishop or archdeacon shall longer hold pleas in the hundred court that are to be decided by episcopal laws, nor bring any cause which relates to spiritual matters Ithe government of souls] for the judgment of secular persons; but whoever shall be sued according to the episcopal laws, for any cause or offence, shall come to the place chosen and appointed by the bishop for that purpose, and there make his own defence; to the end that right may be done to God and his bishop, according to the canon and episcopal laws, and not those of the hundred.)

of the laws of King Edward the Gonfessor, 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 affected union. And when, upon the death of King Henry the First, the usurper Stephen was brought in and supported by the clergy, we find one article of the oath which they [*64] imposed upon him was, that ecclesiastical persons and ecclesiastical causes should be subject only to the bishop's jurisdiction. (2) And as it was about that time that the contest and emulation began between the laws of England and those of Rome, (2) 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 (curia christianitatis) ĺ 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 cathedrals, 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 [*65]

dean of the arches, because he anciently held his court in

(f) Volo et præcipio, ut omnes de comitatu eant ad comitatus et hundreda, sicut fecerint tempore regis Edwardi. (I will and command that all persons belonging to the county attend the county and hundred courts as they did in the time of King Edward.) (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. S. Generalia comitatuum placita certis locis et vicibus teneantur. Intersint autem episcopi, comites, &c.; et agantur primo debita veræ christianitatis jura, secundo regis placita, postremo causa singulorum dignis satisfactionibus expleantur. (Let the general pleas of the counties be held in certain places and districts; and the bishops and counts, &c. be present; and first, let all affairs concerning relizion be transacted; next, the pleas of the crown; and lastly, let the causes of individuals be heard and justly determined.)

(g) 2 Inst. 70.

(h) Ne episcopi sæcularium placitorum officium suscipiant. (Let no bishop take charge of secular pleas. Spelm. Cod. 301.

(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.