Sivut kuvina

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 bishop added weight and reverence to the sheriff's proceedings; and the authority of [*62] the sheriff was equally useful to the bishop, by enforcing obedience to his decrees on 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 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 jurdisdiction 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 ;" (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

(a) Celleberrimo huic conventui episcopus et aldermanus inter sunto; quorum alter jura divina, alter humana populum edoceto. LL. Eadgar. c. 5,

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

(c) Ibid.

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. The territorial judges hold their offices only during the pleasure of the president.

VOL. II.-6


liberty, is not altogether *certain. But the latter, if not the cause, was [*63] 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; (7) which soon dissolved this newly affected union. And when, upon the death of King Henry the First, [*64] *the usurper Stephen was brought in and supported by the clergy, we find one article of the oath which they imposed upon him was, that ecclesiastical persons and ecclesiastical causes should be subject only to the bishop's jurisdiction. (1) 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 (curia christianitatis) I shall begin with the lowest, and so ascend gradually to the supreme court of appeal. (7)

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 dean of the arches, because [*65] 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 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 prin

(d) Hale Hist C. L. 102. Selden, in Edm. p. 6. 1. 21. 4 Inst. 259. Wilk, LL. Ang!, Sax. 292. (e) Nullus 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 clegerit et nominurerit. veniat ; ibique de causa vel culpa sua respondeat; et non secundum hundred, sed secundum canones et episcopales leges. rectum Deo et episcopo suo faciat.

() Volo et præcipio, ut omnes de comitatu eant ad comitatus et hundreda, sicut fecerint tempore regis Edwardi. (Cart. Hen. 1, in Spelm, cod. vet legum. 305.) And what is here obscurely hinted at. is fully explained by ms 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 veræ christianitatis jura, secunda. regis placita, postremo causa, singulorum dignis satisfac tionibus expleantur. (g) 2 Inst. 70. (h) Ne episcopi sæcularium placitorum officium suscipiant. Spelm. Cod. 301. (E) See Book I, introd. § 1.

(i) Spelm. Cod. 310.

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

cipal 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.

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.

[*66] 5. The prerogative court is established for the trial of all testamentary 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 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, 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 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, (0) 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

vigilant to improve all opportunities of extending his jurisdiction hither, [*67]

at length rivited 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

'm) Book II, ch. 32.

(n) Cod. vet. leg. 315.

(0) Chap. 8.

(p) 4 Inst. 341.

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. (1)

7. A commission of review is a commission sometimes granted, in extraordi nary 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 justitia: but merely a matter of favour, and which, therefore, is often


These are now the principal courts of ecclesiastical jurisdiction: (2) 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 [*68] reforming, ordering, and correcting 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

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(1) The jurisdiction of the court of delegates has now been transferred to the judicial committee of the privy council. See note, p. 69, post.


(2) ery radical changes have recently been made in the jurisdiction of these courts. statutes 20 and 21 Vic. c. 77, and 21 and 22 Vic. cc. 56 and 95, a distinct and separate probate court has been organized, which exercises the powers in probate cases formerly possessed by the ecclesiastical courts. The probate court is presided over by a single judge, who holds his office during good behaviour, and who must be an advocate of ten years standing, or a barrister of fifteen years standing, One or more of the common law judges may sit with the probate judge in holding the court, and under 21 and 22 Vic. c. 95, the judges of probate and admiralty may sit for each other. The judge of the court of probate may send issues of fact for trial to the courts of law, or he may try them with a jury in his own court. He has the usual powers of courts of record over the practitioners in his court, and in proper cases he may appoint receivers pendente lite. But he has no jurisdiction of suits for legacies or for the distribution of assets. In contentious causes an appeal lies to the house of lords. Wills are either probated "in solemn form," in which case the parties interested are duly cited, and the decision is conclusive as regards both real and personal property, or "in common form," in which case parties may contest their validity whenever drawn in question afterwards, by giving notice of their intention so to do. In cases of small estates, where the personal property is sworn to be under 2001. and the real estate under 3001. the county court has jurisdiction, with an appeal to the probate court. The formal business in probate cases is transacted by registrars. There are forty district registries, each of which has its registrar appointed by the judge of the probate court, and holding office during good behavior, and one principal registry at London with four life registrars. The registrars nust. be attorneys or solicitors; they cannot proceed in contentious causes, and in other cases they may refer difficult questions to the judge for his decision.

Besides the loss of probate powers, jurisdiction of matrimonial causes was taken from the ecclesiastical courts by statute 20 and 21 Vic. c. 85, and conferred upon the court for divorce and matrimonial causes. Authority over cases of brawling, except between persons in holy orders, was taken away by 23 and 24 Vic. c. 32; that over suits for defamation was abolished by 18 and 19 Vic. c. 41; and that over proceedings to enforce church rates was taken away by 31 and 32 Vic. c. 109. The authority of these courts is now mainly confined to the examination of charges of heresy, of immoral or scandalous conduct on the part of persons in holy orders, and of irregularities in conducting the services of the church. The few other cases of which they may take cognizance are unimportant, and need not be enumerated here.

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. 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. (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 time 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, or in parts out of reach of the common law, are only the court of admiralty, and its courts of [*69] 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. (3) According to Sir Henry Spelman, (w) and Lambard (2) 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 plantations 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 he brought before the king in council. (4) But in case of prize vessels, taken in time of war, in any part of the world, and condemned in any courts of

s) 1 Lev. 230. Show. Parl. Cas. 60. (w) Gloss. 13. (x) Archeion. 41.

(t) 4 Inst. 125.

(u) 7 Mod. 127.

(3) [The practice of the court of admiralty has been improved and its jurisdiction extended by statute 3 and 4 Vic. c. 65.]

(4) The judicial committee of the privy council is now the ultimate court of appeal in admiralty cases, cases from the colonial courts and in ecclesiastical cases. This court is composed of the president of the council, the lord chancellor, the chief justices of the queen's bench and common pleas, the lord chief baron, the master of the rolls, the lords justices of the court of appeal in chancery, the vice-chancellors, the chief judge of the court of bankruptcy, judges and ex-judges of the court of probate and the court of admiralty, two members who have been judges in India or the colonies, and two persons especially designated by the crown. The Archbishops and bishops are also members of this committee in cases of criminal proceedings in ecclesiastical courts against clerks in holy orders. Four members of this court constitute a quorum for the transaction of business. See statutes 2 and 3 William IV, c. 92; 3 and 4 William IV, c. 41, and 6 and 7 Vic. c. 33. The court may take testimony anew on appeal, and in proper cases may send issues to a court of law for trial.

In addition to the courts here mentioned, a very important one has since been created, for the hearing of appeals in criminal cases. It is composed of the judges of the superior courts of common law, but five of them, including one of the chief justices or the chief baron, constitute a quorum. The hearings are upon a case made, and the court either pronounces such judgment as the case requires, or reinits the record with the proper directions to the court below.

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