Sivut kuvina

well be determined without assent of parliament, it shall be brought by the said prelate, earls, and barons, unto the next parliament, who shall finally determine the same.

XI. Before I conclude this chapter, I must also mention an eleventh species of courts, of general jurisdiction and use, which are derived out of, and act as collateral auxiliaries to, the foregoing; I mean the courts of assize and nisi prius.

These are composed of two or more commissioners, who are twice in every year sent by the king's special commission all round the kingdom (except London and Middlesex, where courts of nisi prius are holden in and after every term, before the chief or other judge of the several superior courts (22); and except the four northern counties, where the assizes are holden only once a year) (23), to try by a jury of the respective counties the truth of such matters of fact as are then under dispute in the courts of Westminster-hall. These judges of assize came into use in the room of the ancient justices in eyre, justiciari in itinere; who were regularly established, if not first appointed, by the parliament of Northampton, a. d 1176, 22 Hen. II. (n) with a delegated power from the king's great court, or aula regia, being looked upon as members thereof; and they afterwards made their circuit round the kingdom once in seven years for the purpose of trying causes (o). They were afterwards directed by magna carta, c. 12. to be sent into every county once a year, to take (or receive the verdict of the jurors or recognitors in certain actions, then called) recognitions or assizes; the most difficult of which they are directed to adjourn into the court of common pleas to be there determined. The itinerant justices were sometimes mere justices of assize or of dower, or of gaoldelivery, and the like; and they had sometimes a more general [58] commission, to determine all manner of causes, being constituted justiciarii ad omnia placita (p): but the present justices of assize and nist prius are more immediately derived from the statute Westm. 2. 13 Edw. I. c. 30 which directs them to be assigned out of the king's sworn justices, associating to themselves one or two discreet knights of each county. By statute 27 Edw. I. c. 4. (explained by 12 Edw. II. c. 3.) assizes and inquests were allowed to be taken before any one justice of the court in which the plea was brought; associating to him one knight or other ap

(n) Seld. Jan. 1. 2. 5. Spelm. Cod. 399

(0) Co. Litt. 293.-Anno 1261. justiciarii intinerantes venerunt apud Wigorniam in octavis S. Johannis baptistae;-et totus comitatus eos admittere

(22) The courts of nisi prius in London and Middlesex are called sittings: those for Middlesex were established by the legislature in the reign of queen Elizabeth. In ancient times all issues in actions brought in that county were tried at Westminster in the terms, at the bar of the court in which the action was instituted; but when the business of the courts increased, these trials were found so great an inconvenience, that it was enacted by the 18 Eliz. c. 12. that the chief justice of the king's bench should be empowered to try within the term, or within four days after the ad of the term, all the issues joined in the ourts of chancery and king's bench; and that ine chief justice of the common pleas, and the chief baron, should try in like manner the issues joined in their respective courts. In the

recusavit, quod septem anni nondum erant elaps,
postquam justiciarii ibidem ultimo-sederunt. (Am
nal. Eccl. Wigorn. in Whart. Angl. sacr. I. 495).
(p) Bract. 1. 3. tr. 1. c. 11.

absence of any one of the chiefs, the same au thority was given to two of the judges or barons of his court. The statute 12 Geo. 1. c. 31. extended the time to eight days after term, and empowered one judge or baron to sit in the absence of the chief. The 24 Geo. II. c. 18. has extended the time after term still farther to fourteen days; and the time was afterwards, and still continues unlimited during the vacation next after the term, by the 1 Geo. 1V. c. 55. Before the passing of the 1 Gea IV. c. 21. the nisi prius sittings in Middlese were confined to Westminster-hall, but by that act they may be held at any other fit place within the city of Westminster.

(23) But now the assizes here are held twice a year.

proved man of the county. And, lastly, by statute 14 Edw I c. 18 inquests of nisi prius may be taken before any justice of either bench (though he plea be not depending in his own court), or before the chief baron of the exchequer, if he be a man of the law; or otherwise before the justices of assize, so that one of such justices be a judge of the king's bench or common pleas, or the king's serjeant sworn (24). They usually make their circuits in the respective vacations after Hilary and Trinity terms; assizes being allowed to be taken in the holy time of lent by con sent of the bishops at the king's request, as expressed in statute Westm 1.3 Edw. I. c. 51. And it was also usual during the times of popery, for the prelates to grant annual licenses to the justices of assize to administer oaths in holy times: for oaths being of a sacred nature, the logic of those deluded ages concluded that they must be of ecclesiastical cognizance (9). The prudent jealousy of our ancestors ordained (r), that no man of law should be judge of assize in his own county, wherein he was born or doth inhabit (25); and a similar prohibition is found in the civil law (s), which has carried this principle so far that it is equivalent to the crime of sacrilege, for a man to be governor of the province in which he was born, or has any civil connexion (t).

The judges upon their circuits now sit by virtue of five several authori ties. 1. The commission of the peace. 2. A commission of oyer and

terminer. 3. A commission of general gaol-delivery. The consi [59] deration of all which belongs properly to the subsequent book of these commentaries. But the fourth commission is, 4. A com. mission of assize, directed to the justices and serjeants therein named, to take (together with their associates) assizes in the several counties; that is, to take the verdict of a peculiar species of jury, called an assize, and summoned for the trial of landed disputes, of which hereafter. The other authority is, 5. That of nisi prius, which is a consequence of the commis. sion of assize (u), being annexed to the office of those justices by the sta tute of Westm. 2. 13 Edw. I. c. 30. and it empowers them to try all questions of fact issuing out of the courts of Westminster, that are then ripe for trial by jury (26). These by the course of the courts (w) are usually appointed to be tried at Westminster in some Easter or Michaelmas term, by a jury returned from the county wherein the cause of action arises; but with this proviso, nisi prius, unless before the day prefixed the judges of assize come into the county in question. This they are sure to do in the (9) Instances hereof may be met with in the appendix to Spelman's original of the terms, and in Mr. Parker's Antiquities, 209.

(r) Stat. 4 Edw. III. c. 2. 8 Rich. II. c. 2. Hen. VIII. c 24.

(3) Ff. 1. 22. 3.
(t) C. 9. 29. 4.
(u) Salk. 454.


(w) See ch. 22. p. 353

(24) And now by 1 Geo. IV. c. 55. sect. 5. any judge or baron may, on his circuit, amend a record, and make any order in any cause, although it was not in a suit depending in his

own court.

nisi prius, was taken off by the 49 Geo. IIL c. 91.

(26) An important act, the 3 Gen. IV. c. 10 was lately passed to remedy the defect of the commission not being opened on the day appointed; by which it is enacted, that the commission may be opened on the succeeding day to the one appointed; and if such succeeding day be a Sunday, or any other day of public rest, then on the next following day, provided the opening the commission on the appointed day was prevented by the pressure of business 'sewhere, or by some unforeseen cause or ac This re- cident.

(25) This restriction was construed to extend to every commission of the judges: but it being found very inconvenient, the 12 Geo. *I. c. 27. was enacted for the express purpose of authorizing the commissioners of oyer and terminer, and of gaol-delivery, to execute their commissions in the criminal courts within the counties in which they were born, or in which hey reside. See 4 book, 271.

triction, as to commissioners of assize and

racations preceding each Easter and Michaelmas terin, which saves much expense and trouble. These commissions are constantly 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 jus tices 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; directing that if all cannot be present, any two of them (a justice or a serjeant being one) may proceed to execute the commission.


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 [*60] county, hundred, or perhaps parish. Pleas of freehold, 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. facts are disputed, they are sent down to be tried in the country by the neighbours; 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 preside 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 tre formed by their education, interested by their property, and bound upon their conscience and honour, to be skilled in the laws of their country. This is a faithful sketch of the English juridical constitution, as designed by the masterly hand 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 adhering to the wisdom of the ancient plan, concerted by Alfred, and perfected by Edward I., and by attending to the spirit, without neglecting the form of their excellent and venerable institution.


RESIDES the several courts which were treated of in the preceding chap tor, 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 other courts of a jurisdic ion equally public and general; which take cognizance of other species of injuries, of an ecclesiastical, military, and maritime nature; and therefore are properly distinguished by the title of ecclesiastical courts, courts military, and maritime.

I. 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 be ing 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 advanta[*62]geous to them both; the presence of the *bishop added weight

and reverence to the sheriff's proceedings; and the authority of the sheriff was equally useful to the bishop, by enforcing obedience to his decrees in such refractory offenders, as would otherwise have despised the thunder of mere ecclesiastical censures.

Bu 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" sacer dotes 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 dis cutite, quia dignum non est ut nos judicemus Deos (c).”

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

(1) In the U. S. there are no ecclesiastical Bourts or military courts, like those mentioned this chapter. The surrogates ir Ne

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

York have cognizance of latter affecting he estate of dereased persons.

at 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, o 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 not the cause, was un- [*63] doubtedly 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 o 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 West. minster, 3 Hen. I. they ordained that no bishop should attend the discussion of temporal causes (h); which soon dissolved this newly effected union. And when, upon the death of king Henry the First, the [64 ] 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 (i). 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 (curiae christianitatis), I shall begin with the lowest, and so ascend gradually to the supreme court of appeal (1).

(d) Hale Hist. C. L. 102. Selden. in Eadm. p. 6, 2 24. 4 Inst. 259. Wilk. LL. Angl. Sax. 292.

e) Nullus episcopus vel archidiaconus de legibus episcopalibus amplius in hundret placita teneant, ne: causam, quae 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 sua respondeat; et non setundum hundret, sed secundum canones et episcopales eges, rectum Deo et episcopo suo faciat.

(f) Volo et præcipio, ut omnes de comitatu eant ad comitatus et hundreda, sicut fecerint tempore regis Edw. li. (Cart. Hen. I. in Spelm. cod. vet. um. 305) And whatishere obscurely hinted at,

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