Sivut kuvina

This jurisdiction, we have seen, is principally exercised with us in the consistory courts of every diocesan *bishop, and in the prerogative court of the metropolitan, originally; and in the arches court and court of dele- [*98] gates, by way of appeal. It is divisible into three branches; the probate of wills, the granting of administrations, and the suing for legacies. The two former of which, when no opposition is made, are granted merely ex officio et debito justitia, and are then the object of what is called the voluntary, and not the contentious jurisdiction. But when a caveat is entered against proving the will or granting administration, and a suit thereupon follows to determine either the validity of the testament, or who hath a right to administer; this claim and obstruction by the adverse party are an injury to the party entitled, and as such are remedied by the sentence of the spiritual court, either by establishing the will or granting the administration. Subtraction, the withholding or detaining of legacies, is also still more apparently injurious, by depriving the legatees of that right with which the laws of the land and the will of the deceased have invested them; and, therefore, as a consequential part of testamentary jurisdiction, the spiritual court administers redress herein, by compelling the executor to pay them. But in this last case the courts of equity exercise a concurrent jurisdiction with the ecclesiastical courts, as incident to some other species of relief prayed by the complainant; as to compel the executor to account for the testator's effects, or assent to the legacy, or the like. For, as it is beneath the dignity of the king's courts to be merely ancillary to other inferior jurisdictions, the cause, when once brought there, receives there also its full determination.

These are the principal injuries for which the party grieved either must, or may, seek his remedy in the spiritual courts. But before I entirely dismiss this head, it may not be improper to add a short word concerning the method of proceeding in these tribunals, with regard to the redress of injuries.

It must (in the first place) be acknowledged, to the honour of the spiritual courts, that though they continue to this day to decide many questions [*99] which are properly of temporal cognizance, yet justice is in general so ably and impartially administered in those tribunals (especially of the superior kind), and the boundaries of their power are now so well known and established, that no material inconvenience at present arises from this jurisdiction still continuing in the ancient channel. And should an alteration be attempted, great confusion would probably arise, in overturning long-established forms, and newmodelling a course of proceedings that has now prevailed for seven centuries.

The establishment of the civil law process in all the ecclesiastical courts was indeed a masterpiece of papal discernment, as it made a coalition impracticable between them and the national tribunals, without manifest inconvenience and hazard. And this consideration had undoubtedly its weight in causing this measure to be adopted, though many other causes concurred. The time when the pandects of Justinian were discovered afresh, and rescued from the dust of antiquity, the eagerness with which they were studied by the popish ecclesiastics, and the consequent dissensions between the clergy and the laity of England, have formerly (r) been spoken to at large. I shall only now remark upon those collections, that their being written in the Latin tongue, and referring so much to the will of the prince and his delegated officers of justice, sufficiently recommended them to the court of Rome, exclusive of their intrinsic merit. To keep the laity in the darkest ignorance, and to monopolize the little science, which then existed, entirely among the monkish clergy, were deep-rooted principles of papal policy. And, as the bishops of Rome affected in all points to mimic the imperial grandeur, as the spiritual prerogatives were moulded on the pattern of the temporal, so the canon law process was formed on the model of the civil law: the prelates embracing with the utmost ardor a method of judicial proceedings which was carried on in a language unknown to the bulk of the people, which banished the intervention of a jury (that bulwark of *Gothic liberty), and [*100] which placed an arbitrary power of decision in the breast of single man.

(r) Book I, introd. § 1.

The proceedings in the ecclesiastical courts are therefore regulated according to the practice of the civil and canon laws; or rather according to a mixture of both, corrected and new-modelled by their own particular usages, and the interposition of the courts of common law. For, if the proceedings in the spiritual court be ever so regularly consonant to the rules of the Roman law, yet if they be manifestly repugnant to the fundamental maxims of the munici pal laws, to which upon principles of sound policy the ecclesiastical process ought in every state to conform (s) as if they require two witnesses to prove a fact, where one will suffice at common law); in such cases a prohibition will be awarded against them. (f) But under these restrictions, their ordinary course of proceeding is; first by citation, to call the party injuring before them. Then, by libel, libellus, a little book, or by articles drawn out in a formal allegation, to set forth the complainant's ground of complaint. To this succeeds the defendant's answer upon oath, when if he denies or extenuates the charge, they proceed to proofs by witnesses examined, and their depositions taken down in writing, by an officer of the court. If the defendant has any circumstances to offer in his defence, he must also propound them in what is called his defensive allegation, to which he is entitled in his turn to the plaintiff's answer upon oath, and may from thence proceed to proofs as well as his antagonist. The canonical doctrine of purgation, whereby the parties were obliged to answer upon oath to any matter, however criminal, that might be objected against them (though long ago overruled in the court of chancery, the genius of the English law having broken through the bondage imposed on it by its clerical chancellors, and asserted the doctrines of judicial as well as civil liberty), continned to the middle of the last century to be upheld by the spiritual courts; when the legislature was obliged to interpose, to teach them a lesson of similar moderation. By the statute of 13 Car. II, c. 12, it is enacted, that it shall [*101] not be lawful for any bishop or ecclesiastical judge, to tender 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 several stages mentioned in a former chapter; (u) 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 defective, is that of enforcing their sentences when pronounced; for which they have no other process but that of excommunication; which is described (v) to be twofold; the less. and the greater excommunication. (8) 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

(s) Warb. alliance, 179.

(t) 2 Roll. Abr. 300, 302.

(u) Chap. 5.

(v) Co. Litt. 133.

(8) [The act, 53 Geo. III, c. 127, prohibits excommunication, and the writ de excommunicato capiendo as a mode of enforcing performance or obedience to ecclesiastical orders and decrees; and instead of the sentence of excommunication in those cases, the court is to pronounce the defendant contumacious, and the ecclesiastical judge is to send his significavit in the prescribed form to the chancery, from which a writ de contumace capiendo is to issue in the prescribed form, and which is to have the same force as the ancient writ. There is a similar act as to Ireland. 54 Geo. III, c. 68. In other cases, not of disobedience to the orders and decrees of the court, there may be excommunication, and a writ de excommunicato capiendo as heretofore. In the proceedings under this statute, it must clearly appear, that the ecclesiastical court had jurisdiction, and that the form of proceedings has been duly observed. 5 Bar. and Al. 791; 3 Dowl. and R 570.]

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 contumelious 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 supporting hand to an otherwise totter- [*102] ing 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 numero 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 certificate, 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; upon which another writ de excommunicato deliberando, issues out of chancery to deliver and release him. (z) This process seems founded on the charter of separation (so often referred to) of William the Conqueror. "Si aliquis per superbiam elatus ad justitiam episcopalem venire noluerit, excommuniceter; et, si opus fuerit, ad hoc vindicandum fortitudo et justitia regis sive vicecomitis adhibeatur." And in case of subtraction of tithes, a more summary and expeditious assistance is given by the statutes of 27 Hen. VIII, c 20, and 32 Hen. VIII, c. 7, which enact, that upon complaint of any contempt or misbehaviour to the ecclesiastical judge by the defendant in any suit for tithes, any privy counsellor, or any *two justices of the peace (or, in case of disobedience to a definitive sentence, any two justices of the peace), may commit [*103] 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. (9)

II. I am next to consider the injuries cognizable in the court military, or court of chivalry. The jurisdiction of which is declared by statute 13 Rič. II,

(w) 2 Inst. 623.

(x) De bello Gall. l. 6.

(y) Litt. 201.

(z) F. N. B. 62.

(9) [The jurisdiction of these courts in cases of brawling, except as between persons in holy orders, has been taken away by 23 and 24 Vic. c. 32, which has given power to justices of the peace to fine or imprison persons found guilty of unlawfully interfering with any clergymen in holy orders during the service, or of making disturbance in churches or chapels, churchyards or burial grounds. And the jurisdiction to entertain suits for defamation was abolished by 18 and 19 Vic. c. 41.]

So that.

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." 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 themselves aggrieved in matters of honour; and 2. To keep up the distinction of degrees and *quality. Whence it follows, that the civil jurisdiction of this court of [*104] 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 aggrieved in that point; a point of a nature so nice and delicate, that its wrongs 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 cannot 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 that he has given 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 reparation 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 mur derer; 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 of [*105] 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 of precedence, where the king's patent or act of parliament (which cannot be overruled 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 resolutions 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 records, (which ought to be the standing evidence of families, descents, and coat-armour,) that, though formerly some credit has been paid to their testi

Selden of duels, c. 10. Hal. Hist. C. L. $7. 2 Hawk. P. C. c. 4. (c) Hal. His. C. L. 37.

(a) Year-book, 37 Hen. VI, 21.
(b) Sulk, 533. 7 Mod. 125.
d) 1 Roll. Abr. 128.

(e) Co. Litt. 261.

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mony, now even their common 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 of a modern descent *for the recovery of an estate, or succession to a title of honour, more difficult than that of an ancient. This will be indeed remedied for the [*106 ] 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 into the house by garter, the principal king-at-arms. But the general inconvenience, affecting more private successions, still continues without a remedy.

III. Injuries cognizable by the courts maritime, or admiralty courts, are the next object of our inquiries. 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. All admiralty causes must be therefore causes arising wholly upon the sea, and not within the precincts of any county. (i) 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 by 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 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 [*107] 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 shipboard 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 cannot hold plea of any contract. under scal. (o) (10)

(f) 2 Roll. Abr. 686. 2 Jon. 224.
(i) Co. Litt. 260. Hob. 79.
(m) 1 Ventr. 146.

(g) Comb. 63.
(j) See book I, ch. 8.
(n) Hob. 12. Hal. Hist. C. L. 35.

(h) May. 1767.
(k) 5 Rep. 106.
(0) Hob. 212.

(1) Co. Litt. 261.

(10) [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. Menetone v. Gibbons, 3 T. R. 267. Cases which are said to have determined the point mentioned in the text occurred upon seamen's wages; over which the admiralty had undoubted jurisdiction, but in such it was ruled that the special agreement took it away. See Howe v. Nappier, 4 Burr. 1950, cited in and in effect overruled by Menetone v. Gibbons. The cases which have been mentioned in addition to that cited from Hob. 212, and Howe v. Napier, are Day v. Searle, 2 Str. 968, and Opy r. Addison, 12 Mod. 38; Salk. 31, S. C. And it should upon the whole seem that when65

VOL. II.-9

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