Page images

of the statutes of Edward I and II before mentioned; whereby certain persons (usually the clerk of affise and his subordinate officers) are directed to associate themselves with the justices and serjeants, and they are required to admit the said persons into their society, in order to take the affises, &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 oist non omnes; directing, that if all cannot be present, any two of them (a justice or 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 oeconomy 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 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 misdemesnors 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. If facts are disputed, they arc 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 cafes 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 sip the fundamentals, of thclaw. Lastly, there presides

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 aequilibriutn among all the inferior jurisdictions : a court composed os 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 are 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 hands of our forefathers. Of which the great original lines are still strong and visible; and, if any of it's 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 forms, of their excellent and venerable institutions.



BESIDES the several courts, which were 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 it's constant attendant, there still remain some other courts of a jurisdiction 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 courts 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 fort 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 bistiop's opinion in spiritual matters, and to that of the lay judges in temporal \ This union of power was very advantageous to them both: the presence of the

CcUbcrr'mo butc coirventui episcopus jura d'rvina, alter human*p:pu!uT. edeato. et ilderuiaimut interfunt*; qmrum alter 1.1.. EaJgar. c. 5.

bisliop 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 decree in such refractory offenders, as would otherwise have despised the thunder os 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 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 "facer dotes a regibus honorandi sunt, non judicandi b;" and places an emphatical 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, be caused (says the holy canon) the petitions to be burnt in their presence, dismissing them with this valediction; "he *f et inter ves causas vejlras di/aitite, quia digimm non eji ut nos u judicemus Deosc."

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 incroachment, 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 liberty, is not altogether

k Dicrtl. furl. 2. tavj. n, ju. i. <. Ai. C Ibid,


certain. But the latter, if not the cause, was 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 conquerora; 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%:ivil and ecclesiastical courtsf. Which was, according to sir Edward Coke f, after the great heat of the conquest was past, only a restitution of the antient law of England. This however was ill relistied 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 stiould attend the discussion os temporal causes h; which soon dissolved this newly effected union. And when, upon the death of king Henry the firsts

d Hale. Hist. C. L. 102. SclJen. in cant ad comitutus et lumlreda, Jicut fece

"B.adir.. p, 6. /. 24. 4 Inst. 259. Wilk. rint temperc. regU Edivardi, (Cartm

LL, Sax, 292. Hen, I, in Spent. ed, v.t. /egum. 305.^

* Nullut episcopal ve!' o>chiJijconus de And what is here oblcurc'y hinted at, is ltgibui episopalibut ampilus in bundrtt fully explained by hiscodeof laws extant plscita teneant, nee caujam quaeadrcglmen in the red bookostheexcheuucr, though animarutn pert'uttt adjudicitim secularium in general but of doubtful authority. hominum adducant: f:d quicur.quc scan- cjp.%, Gencralia cmitatuumplaeiiacertit dum episcopates leges, de quacunque causa heis et vicibus tentantur, Intersnt au'.em vcl culpa interpellate fueritt ad locum, epijcopi, comltes, &c j et aganrur primn quern ad hoc episcopus t'egerit et nomina- debita verae chriflianitatil jura,sctundi 9cr;t, vtn'iat; ibique de causa )ua rejpon- regis pLicita, pestrenw caufae dear} et nonsecundum bunjrct, Jedstcun- digmisatissjBionibus expieantur, dumcanencset episopatei legtt, nflum Vn K 2 Inst. 70.

et episeoposuosacht, n Nc episcepi saecularium pfacit:-rum

* y*Uetfratcipio, ut cmr.csdc cemitatu cj/iciumsusipiant. Spclm. Ctd. 301.

Vol. III. E th«

« PreviousContinue »