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the church of Saint Mary le bow (sancta Maria de a cubus), though all the principal spiritual courts are now holden 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 the 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.

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 [*66] 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 causes, where the deceased hath left bona notabilia (goods of a person to the value of a hundred shillings, lying in another house than that in which he died, and hereby rendered cognizable by probate before the archbishop of the province, unless by special custom it be otherwise) 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 whom an appeal lies by statute 25 Hen. VIII, 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 opposes, and which keep an open office for that purpose (as granting dispensations, licenses, faculties, and other remnants of the papal extortions), but do not concern themselves with administrating redress to any injury; and shall proceed to,

6. Appellate jurisdiction.-The great court of appeal in all ecclesiastical causes, viz.: the court of delegates, judices delegati (delegated judges), 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

(m) Book II, ch. 32.

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 honor of the crown, and the independence 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 observed) that the civil and canon laws were first imported into England. (n) But, in a few years after, to obviate this growing 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 archbishop of the province; and from the archbishop to the king; and are not to proceed any farther without special license 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 was ever [*67] vigilant to improve all opportunities of extending his jurisdiction hither, at length riveted 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 Henry VIII, c. 12, to all the bishops of the realm, assembled in the upper house of convocation.

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 commission the king may grant, although the statutes 24 and 25 Hen. VIII, before cited, declares 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 (7) 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 justitiæ: 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 formidable 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 exercised under the pope's authority. It was intended to vindicate the dignity and peace of the church, by reforming, ordering, and correcting the [68]

(n) Cod. vet. leg. 315. (r) 4 Inst. 324.

(0) Chap. 8.

(p) 4 Inst. 341.

(q) Ibid.

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. Military courts.- 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. VIII, 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. (8) 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 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, [*69] or in parts out of reach of the common law, are only the

court of admiralty, 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 (a) 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 the 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 plantations and settlements, may be brought before the courts of

(s) 1 Lev. 230. Show. Parl. Cas 60. (w) Gloss. 13.

(x) Archeion. 41.

(t) 4 Inst. 125.

(u) 7 Mod. 127.

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; by which particular courts are established in all the maritime countries of Europe for the decision of this question, whether lawful prize or not: 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 admiralty; and the court of appeal is in effect the king's privy [70] council, the members of which are, in consequence of treaties, 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 then in being. But doubts being conceived concerning the validity of that commission, on account 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 judge1 whose masterly acquaintance with the law of nations was known and revered by every state in Europe. (y)

*CHAPTER VI.

OF COURTS OF A SPECIAL JURISDICTION.

[*71]

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

(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.)

1 Lord Mansfield is the judge here referred to.

The national equity and admiralty courts of the United States are mentioned in the note to page 60. The several states have no admiralty courts, and some of them have no separate courts of equity, but equitable remedies are administered in the courts of law. Cognizance of probate cases is in the state governments exclusively, and

courts of probate jurisdiction exist in all the states under different names and with more or less extensive powers. In some states they have complete jurisdiction of all questions of administration and distribution, to the exclusion of the courts of chancery; and in some, also, the equity jurisdiction in the case of infants is transferred, with more or less modification, to these courts.

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 greensward, 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, wood-mote, 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 present

[*72] ments de viridi et venatione (of vert and venison); and the

verderors are to receive the same, and to enroll them, and to certify them under their seals to the court of justice-seat, or sweinmote: (d) for this court can only inquire of, but not convict offenders. 2. The court of regard or survey of dogs, is to be holden every third year, for the lawing or expeditation 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) No other dogs but mastiffs are to be thus lawed or expeditated, for none other 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 defense 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 oppression and grievances committed by the officers of the forest; "de super-oneratione forestariorum, et aliorum ministrorum foresta; et de eorum oppressionibus populo regis illatis" (concerning the impositions of the foresters, and other officers of the forest; and their oppression on the king's people); and secondly, to receive and try presentments certified from the court of attachments 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 proceed to judgment. () 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

(a) Cart. de forest. 9 Hen. III, c. 8.
(d) Cart. de forest. c. 16.
(e) Cart. de forest. c 6.

(h) Stat. 34 Edw. I, c. 1.

(b) 4 Inst. 289.

(f) 4 Inst. 308.
(i) 4 Inst. 289.

(c) Carth. 79.

(g) Cart. de forest. c. 8.
(k) 4 Inst. 291.

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