that is, to take the verdict of a peculiar species of jury, called an assize, which, by the abolition of real actions, no longer exists. The other authority is, 5. That of nisi prius, which is a consequence of the commission of assize, being annexed to it by the statute of Westm. 2, and empowers them to try all questions of fact issuing out of the courts at Westminster, that are then ripe for trial by jury. These by ancient practice were to be tried at Westminster in some Easter or Michaelmas term, by a jury returned from the county wherein the cause of action arose; nisi prius, unless before the day fixed for this trial at Westminster, the judges of assize came into the county in question; which, I may add, they were sure to do in the vacations preceding each Easter and Michaelmas term. From these words of the ancient writ, we derive the appellation of sittings at nisi prius.

These, then, are the several courts of common law and equity, which are of public and general jurisdiction throughout the kingdom; a large portion of the judicial business of the country, however, is done in other courts, the nature of which will be explained in the following chapter.

CHAPTER III.

OF COURTS OF A SPECIAL JURISDICTION.

Ecclesiastical Courts, viz., Archdeacon's Court-Consistory-Court of Arches, and Judical Committee of Privy Council-Court of Probate-Court of Admiralty-Court for Divorce and Matrimonial Causes-Court of Bankruptcy-Courts of the Counties Palatine-of the Stannaries of the Cities and Boroughs, and of the Universities-Forest Courts-Courts of Commissioners of Sewers.

BESIDES the several courts 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 other courts of a jurisdiction equally public and general, which take cognizance of certain other species of injuries. These are, I. the Ecclesiastical Courts, II. the Court of Probate, and III. the Court of Admiralty.

I. The Ecclesiastical Courts date from the Conquest. In the time of our Saxon ancestors there was no 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 asserted by the same judges as the rights of the laity. For tnis

purpose the bishop of the diocese and 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.

William the Conqueror, it is generally said, to please the clergy, by whom his claims had been warmly espoused, separated the ecclesiastical courts from the civil; and prohibited any spiritual cause from being tried in the secular courts, commanding the suitors to appear before the bishop only, whose decisions were thenceforth to conform to the canon law. King Henry I. revived the union of the civil and ecclesiastical courts; but the clergy having in their synod at Westminster, 3 Hen. I., ordained that no bishop should attend the discussion of temporal causes, soon dissolved this newly-effected union. And when Stephen was brought in by the clergy, 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. About that time the contest began between the laws of England and those of Rome, 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 mentioning the various species of ecclesiastical courts, I would premise one observation only, that the jurisdiction of these courts is now so very limited, that they possess little if any of that importance which formerly attached to their proceedings..

1. The Archdeacon's Court, then, is the most inferior court in the whole ecclesiastical polity. It is held, in the archdeacon's absence, before his official. From hence an appeal lies to

2. The Consistory Court, which is held in the cathedral of every bishop, for the trial of ecclesiastical causes arising within the dioThe bishop's chancellor is the judge; and from his sentence an appeal lies to the archbishop.

cese.

3. The Court of Arches is the Court of Appeal of the Archbishop of Canterbury, whereof the judge is called the Dean of the Arches; because he anciently held his court in the church of Saint Mary le bow, sancta Maria de arcubus. 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 right of the last-mentioned office, as does also the official principal of the Archbishop of York, receives and determines appeals from the sentences of all inferior ecclesiastical courts within the province. From him an appeal lies to the Queen,

as supreme head of the English church, in the place of the Bishop of Rome, who formerly exercised this jurisdiction.*

I pass by such ecclesiastical courts as have only what is called a voluntary, and not a contentious jurisdiction, which merely keep an open office for granting dispensations, licences, faculties, and other remnants of the papal extortions; and proceed to

4. The great court of appeal in all ecclesiastical causes; viz., the Judicial Committee of the Privy Council, which has been substituted for the Court of Delegates, judices delegati, who were formerly appointed by commission under the Great Seal, to represent the royal person, and hear all appeals to the sovereign, made by virtue of the statute 25 Henry VIII. c. 19.

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 reign of Stephen, A.D. 1151, at the same period that the civil and canon laws were first imported into England. But, in a few years after, to obviate this growing practice the Constitutions made at Clarendon, 11 Hen. II., expressly declare, that appeals ought to lie from the archbishop to the king; and are not to proceed any further without special licence from the crown. But the unhappy advantage given in the reigns of John, and his son Henry III., to the encroaching power of the pope, 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 VIII., when all the jurisdiction previously possessed by the pope in matters ecclesiastical was transferred to the crown. Thenceforth these appeals were heard by the court of Delegates, till the statute of Henry VIII. was in this respect repealed; and the appellate jurisdiction of the crown in Chancery directed to be exercised by the king in council, by the statute 3 & 4 Will. IV. c. 41. For that purpose the Judicial Committee of the Privy Council, consisting of the lord chancellor, the chief justices, and others of the judges, was constituted; but though styled a committee, it is a court of record, and has full power to punish contempts, and award costs.

These are the principal courts of ecclesiastical jurisdiction; none of which, except the Judicial Committee, are allowed to be courts of record; no more than was another much more formidable jurisdic

* Sir William Blackstone mentions in this place the Prerogative Court of the Archbishop of Canterbury; which ceased to exist with the doctrine of bona notabilia, on which its jurisdiction was founded, on the transfer of the testamentary jurisdiction of the Ecclesiastical Courts to the Court of Probate.

tion, but now deservedly annihilated, viz., the court of High Commission in causes ecclesiastical, erected to vindicate the dignity and peace of the church, by reforming ecclesiastical persons, and all manner of errors, heresies, schisms, offences, and enormities. Under the shelter of which very general words, means were found to vest in the commissioners 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 attempt that was made to revive it, during the reign of James II., served only to hasten that infatuated prince's ruin.

II. The Court of Probate was constituted as a court of record by the statute 20 & 21 Vict. c. 77, to exercise, in the name of the Queen, "all the jurisdiction and authority in relation to the granting

or revoking probate of wills and letters of administration of the "effects of deceased persons then vested in any court or person," and by that act transferred to the crown; "with full authority to hear "and determine all questions relating to matters and causes testamentary." Its principal registry is in the metropolis; but for the convenience of the suitors it has nearly as many local registries as formerly there were dioceses, the districts of the former being much the same as those of the consistory courts, whose jurisdiction has been transferred to the crown. The duties of these consistory courts were, indeed, principally administrative; and the functions of the local registrars of the Court of Probate are in like manner chiefly exercised in non-contentious cases; for in disputed wills or administrations the court itself must decide, unless the case be one in which the county court has jurisdiction.

III. The Court of Admiralty has jurisdiction to determine all maritime injuries, arising upon the seas, or in parts out of the reach of the common law. It is held before the Lord High Admiral, or his deputy, who is called the judge of the court; and from its sentences an appeal lies, in ordinary course, to the sovereign in council. It has, in time of war, the authority of a Prize Court, a jurisdiction secured by 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.

There yet remain certain other courts, which are, I. instituted to redress or prevent particular wrongs; or, II. whose jurisdiction is

confined to particular localities; or, III. is altogether private and special in its nature.

I. Of the first species are the court for Divorce and Matrimonial Causes, and the courts of Bankruptcy.

The Court for Divorce and Matrimonial Causes was constituted by statute 20 & 21 Vict. c. 85, to exercise in the name of the Queen all the jurisdiction then vested in any ecclesiastical court or person in matters matrimonial; and is a court of record, the judge of the Court of Probate being the judge ordinary; with authority to hear and determine all matters arising therein, subject to an appeal to the full court; which consists of the judge ordinary and at least two other judges of the courts of Westminster, and in certain other cases to the House of Lords.

The Court of Bankruptcy was first established by the statute 1 & 2 Will. IV. c. 56, and consists of a principal court situated in London, and seven district courts, each of which is a court of law and equity, and has all the rights and incidents of a court of record; the procedure therein, which has been regulated by several statutes, being the same in all. In certain cases the county courts have all the powers and authorities of the district courts of bankruptcy. And from the judgment of either an appeal lies to the court of chancery; and thence a further appeal to the House of Lords.

The proceedings of these courts, I must add, are administrative, not contentious: they are not tribunals for the trial and determination of disputed questions either of fact or of law; their proper functions are to collect and divide the property of a bankrupt among his creditors; and their proceedings accordingly are principally those of the courts themselves or of their officers, and not of the parties severally interested in the funds, which it is the office and duty of these tribunals to distribute.

II. The second species of courts, or those whose jurisdiction is confined to particular localities,* are

1. The court of the Duchy Chamber of Lancaster, held before the chancellor of the duchy or his deputy, concerning all matter of equity relating to lands holden of the crown in right of the duchy of Lancaster; the proceedings in which are the same as on the equity side in the Court of Chancery.

2. The courts of the Counties Palatine of Lancaster and Durham, in which the ordinary writs, under the great seal out of Chancery, do

* Among this class of courts might formerly have been included the courts of the County Palatine of Chester, of the Royal Franchise of Ely, and of the Cinque Ports; the Palace Court; and the Great Sessions and other courts of the principality of Wales.