cluded that they must be of ecclefiaftical cognizance 9. The prudent jealoufy of our ancestors ordained, that no man of law fhould be judge of affife in his own country, wherein he was born, or doth inhabit: and a fimilar prohibition is found in the civil law, which has carried this principle fo far, that it is equivalent to the crime of facrilege, for a man to be governor of the province in which he was born, or has any eivil connexion.

2. A

THE judges upon their circuits now fit by virtue of five feveral authorities. 1. The commiffion of the peace. commiffion of oyer and terminer. 3. A commiffion of general gaol delivery. The confideration of all which belongs properly to the fubfequent book of these commentaries. But the fourth cómmission is, 4. A commission of affife, directed to the justices and ferjeants therein named, to take (together with their affociates) affifes in the feveral counties; that is, to take the verdict of a peculiar fpecies of jury, called an affife and fummoned for the trial of landed difputes, of which hereafter. The other authority is, 5. That of nifi prius, which is a confequence of the commission of affife", being annexed to the office of those justices by the statute of Westm. 2. 13 Edw. I. c. 30. and it empowers them to try all questions of fact iffuing out of the courts at Westminster, that are then ripe for trial by jury. These by the course of the courts are ufually appointed to be tried at Westminster in some Easter or Michaelmas term, by a jury returned from the county wherein the caufe of action arifes; but with this provifo, nifi prius, unless before the day prefixed the judges of affife come into the county in queftion. This they are fure to do in the vacations preceding each Eafter and Michaelmas term, which faves much expenfe and trouble. These commiffions are conftantly accompanied by writs of association, in pursuance

q Instances hereof may be met with in the appendix to Spelman's original of and in Mr. Parker's Antiqui

the terms,

ties. 209.

Stat, 4 Edw. III. c. 2. 8 Rich. II.

C. 2.

33 Hen. 8. c. 24.

s Ff. 1. 22. 3.

t C. 9. 29. 4.

u Salk. 454.

w See ch. 23. pag. 353.

W

of

of the statutes of Edward I and II before mentioned; whereby certain persons (usually the clerk of affife and his fubordinate officers) are directed to associate themselves with the justices and ferjeants, and they are required to admit the faid perfons into their fociety, in order to take the affifes, &c; that a fufficient fupply of commiffioners may never be wanting. But, to prevent the delay of juftice by the abfence of any of them, there is alfo iffued of course a writ of fi non omnes; directing, that if all cannot be present, any two of them (a juftice or ferjeant being one) may proceed to execute the commission.

THESE are the feveral 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 wife oeconomy and admirable provision of our ancestors, in fettling the diftribution of juftice in a method fo well calculated for cheapnefs, expedition, and eafe. By the conftitution which they established, all trivial debts, and injuries of fmall confequence, were to be recovered or redressed in every man's own county, hundred, or perhaps parish. Pleas of freehold, and more important difputes 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 misdemefnors were to be examined in a court by themfelves; and matters of the revenue in another distinct juris diction. Now indeed, for the ease of the fubject and greater dispatch of caufes, methods have been found to open all the three fuperior courts for the redrefs of private wrongs; which have remedied many inconveniences, and yet preferved the forms and boundaries handed down to us from high antiquity. If facts are difputed, they are fent down to be tried in the country by the neighbours; but the law, arifing upon those facts, is determined by the judges above: and, if they are mistaken in point of law, there remain in both cafes two fucceffive courts of appeal, to rectify fuch their mistakes. If the rigour of general rules does in any cafe bear hard upon individuals, courts of equity are open to fupply the defects, but not fap the fundamentals, of the law. Laftly, there prefides

over

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 preferve an uniformity and aequilibrium among all the inferior jurisdictions: a court composed of prelates selected for their piety, and of nobles advanced to that honour for their perfonal 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 confcience and honour, to be fkilled in the laws of their country. This is a faithful sketch of the English juridical conftitution, as defigned by the mafterly hands of our forefathers. Of which the great original lines are still strong and visible; and, if any of it's minuter ftrokes are by the length of time at all obfcured or decayed, they may still be with ease reftored to their priftine vigour and that not so much by fanciful alterations and wild experiments (fo 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.

CHAPTER THE FIFTH.

OF COURTS ECCLESIASTICAL, MILITARY, AND MARITIME.

BES

ESIDES the feveral courts, which were treated of in the preceding chapter, and in which all injuries are redreffed, that fall under the cognizance of the common law of England, or that fpirit of equity which ought to be it's conftant attendant, there ftill remain fome other courts of a jurisdiction equally public and general: which take cognizance of other fpecies of injuries, of an ecclefiaftical, military, and maritime nature; and therefore are properly diftinguished by the title of ecclefiaftical courts, courts military, and courts maritime.

I. BEFORE I defcend to confider particular ecclefiaftical courts, I must first of all in general premife, that in the time of our Saxon ancestors there was no fort of diftinction between the lay and the ecclefiaftical jurifdiction: the county court was as much a fpiritual as a temporal tribunal: the rights of the church were ascertained and afferted at the fame time, and by the fame judges, as the rights of the laity. For this purpose the bishop of the diocefe, and the alderman, or in his abfence the sheriff of the county, used to fit together in the county court, and had there the cognizance of all caufes as well ecclefiaftical as civil: a fuperior deference being paid to the bishop'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 prefence of the

a Celeberrimo buic conventui epifcopus jura divina, alter humana populum edoceto. a aldermannus interfunta; quorum alter LL. Eadgar. c. 5.

bishop added weight and reverence to the fheriff's proceedings; and the authority of the sheriff was equally useful to the bishop, by enforcing obedience to his decree in fuch refractory offenders, as would otherwife have defpised the thunder of mere ecclefiaftical cenfures.

Bur fo moderate and rational a plan was wholly incon fiftent with those views of ambition, that were then forming by the court of Rome. It foon became an established maxim in the papal system of policy, that all ecclefiaftical perfons and all ecclefiaftical caufes fhould be folely and entirely fubject to ecclefiaftical jurifdiction only: which jurisdiction was fuppofed to be lodged in the firft place and immediately in the pope, by divine indefeasible right and inveftiture from Chrift himself; and derived from the pope to all inferior tribunals. Hence the canon law lays it down as a rule, that "facerdotes a regibus honorandi funt, non judicandi,” and places an emphatical reliance on a fabulous tale which it tells of the emperor Conftantine: that when fome petitions were brought to him, imploring the aid of his authority against certain of his bifhops, accufed of oppreffion and injuftice, he caufed (fays the holy canon) the petitions to be burnt in their prefence, dismissing them with this valediction; "ite ❝et inter vos caufas veftras difcutite, quia dignum non eft ut nos "judicemus Deos."

It was not however till after the Norman conqueft, that this doctrine was received in England; when William I (whofe title was warmly efpoufed by the monafteries which he liberally endowed, and by the foreign clergy, whom he brought over in fhoals 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 feparate 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 fpirit of Saxon liberty, is not altogether b Decret. part. 2. cauf. 11. qu. 1. c. 41.

c Ibid.

certain,