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courts, over ali civil actions and suits whatsoever, when a scholar or privileged person is one of the parties; excepting in such cases where the right of freehold is concerned. And these by the university charter they are at liberty to try and determine, either according to the common law of the land, or according to their own local customs, at their discretion \ which has generally led them to carry on their process in a course much conformed to the civil law, for reasons sufficiently explained in a former volume:
These privileges were granted, that the students might not be distracted from their studies by legal process from distant courts, and other forensic avocations. And privileges of this kind are of very high antiquity, being generally enjoyed by all foreign universities as well as our own, in consequence (I apprehend) of a constitution of the emperor Frederick, A. D. 1158 '. But as to England in particular, the oldest charter that I have seen, containing this grant to the university of Oxford, was 28 Hen. III. A. D. 1244. And the fame privileges were confirmed and enlarged by almost every succeeding prince, down to king Henry the eighth; in the fourteenth year of whose reign the largest and most extensive charter of all was granted. One similar to which was afterwards granted to Cambridge in the third year of queen Elizabeth. But yet, notwithstanding these charters, the privileges granted therein, of proceeding in a course different from the law of the land, were of so high a nature, that they were held to be invalid 5 for though the king might erect new courts, yet he could not alter the course of law by his letters patent. Therefore in the reign of queen Elizabeth an act of parliament was obtained"', confirming all the charters of the two universities, and those of 14 Hen. VIII. and 3 Eliz. by name. Which blcjj'cd aElt as sir Edward Coke entitles it % estublistied this high privilege without any doubt or opposition °: or, as sir Matthew Hale * very fully expresses the fense
k Vol. I. introd. §■ :. • Jenk. Cent. 2. pi. 88. Cent. 3.
'Cid. 4. lit. 13. pi. 33. Hardr. 504. Godbolt. lot.
*> 13 Eliz. c. 19. r Hist. C. L. 33.
* 4 Inst. 217,
Os of the common law and the operation of the act os parliament, " although king Henry the eighth, 14 A. R. sui, "granted to the university a liberal charter, to proceed ac"cording to the use of the university; viz. by a course much "conformed to the civil law; yet that charter had not been "sufficient to have warranted such proceedings without the "help of an act of parliament. And therefore in 13 Eliz. "an act passed, whereby that charter was in effect enacted; "and it is thereby that at this day they have a kind of civil "law procedure, even in matters that are of themselves of "common law cognizance, where either of the parties is "privileged."
This privilege, so far as it relates to civil causes, is exercised at Oxford in the chancellor's court; the judge of which is the vice-chancellor, his deputy, or assessor. From his sentence an appeal lies to delegates appointed by the congregation; from thence to other delegates of the house of convocation; and if they all three concur in the same sentence it is final, at least by the statutes of the university 1, according to the rule of the civil lawr. But, if there be any discordance or variation in any of the three sentences, an appeal lies in the last resort to judges delegates appointed by the crown under the great seal in chancery.
I Have now gone through the several species of private, or special courts, of the greatest note in the kingdom, instituted for the local redress of private wrongs; and must, in the close of all, make one general observation from sir Edward Coke •: that these particular jurisdictions, derogating from the general jurisdiction of the courts of common law, are ever strictly restrained, and cannot be extended farther than the express letter of their privileges will most explicitly warrant.
1 Tit. 21. §. 19. » 2 Inst. 54S.
• CaJ. 7. 70. 1.
CHAPTER THE SEVENTH.
Of The COGNIZANCE Of PRIVATE WRONGS.
WE are now to proceed to the cognizance of private wrongs; that is, to consider in which of the vast variety of courts,* mentioned in the three preceding chapters, every possible injury that can be offered to a man's person or property is certain of meeting with redress.
The authority of the several courts of private and special jurisdiction, or of what wrongs such courts have cognizance, was necessarily remarked as those respective tribunals were enumerated; and therefore need not be here again repeated: which will confine our present inquiry to the cognizance of civil injuries in the several courts of public or general jurisdiction. And the order, in which I (hall pursue this inquiry, will be by (hewing; i. What actions may be brought, or what injuries remedied, in the ecclesiastical courts. 2.What in the military. 3. What in the maritime. And 4. What in the courts of common law.
And with regard to the three first of these particulars, I must beg leave not so much to consider what hath at any time been claimed or pretended to belong to their jurisdiction, by the officers and judges of those respective courts; but what the common law alloivt and permits to be so. For these eccentrical tribunals (which were principally guided by the rules of the imperial and canon laws) as they subsist and are ad
mitted in England, not by any right of their own *, but upon bare sufferance and toleration from the municipal laws, must have recourse to the laws of that country wherein they are thus adopted, to be informed how far their jurisdiction extends, or what causes are permitted, and what forbidden, to be discussed or drawn in question before them. It matters not therefore what the pandects of Justinian, or the decretals of Gregory have ordained. They are here of no more intrinsic authority than the laws of Solon and Lycurgus: curious perhaps for their antiquity, respectable for their equity, and frequently of admirable use in illustrating a point of history. Nor is it at all material in what light other nations may consider this matter of jurisdiction. Every nation must and will abide by it's own municipal laws; which various accidents conspire to render different in almost every country in Europe. We permit some kinds of suits to be of ecclesiastical cognizance, which other nations have referred entirely to the temporal courts; as concerning wills and successions to intestates' chattels: and perhaps we may, in our turn, prohibit them from interfering in some controversies, which on the continent may be looked upon as merely spiritual. In short, the common law of England is the one uniform rule to determine the jurisdiction of our courts: and, if any tribunals whatsoever attempt to exceed the limits so prescribed them, the king's courts of common law may and do prohibit them; and in some cafes punish their judges \
Having premised this general caution, I proceed now to consider
I. The wrongs or injuries cognizable by the ecclesiastical courts. I mean such as are offered to private persons or individuals; which are cognizable by the ecclesiastical court, not for reformation of the offender himself or party injuring (prosalutae animae, as in the cafe with immoralities in general, when unconnected with private injuries) but for the fake of the party injured, to make him a satisfaction and redress for
» See Vol. I. inciod. §. I, b Hal. Hist. C. L. c. z.
the the damage which he has sustained. And these I shall reduce under three general heads; of causes pecuniary, causes matrimonial, and causes testamentary,
I. Pecuniary causes, cognizable in the ecclesiastical courts, are such as arise either from the withholding ecclesiastical dues, or the doing or neglecting some act relating to the church, whereby some damage accrues to the plaintiff j towards obtaining a satisfaction for which, he is permitted to institute a suit in the spiritual court.
The principal of these is the subtraction or withholding of tithes trom the parson or vicar, whether the former be a clergyman or a lay appropriatorc. But herein a distinction must be taken: for the ecclesiastical courts have no jurisdiction to try the right of tithes unless between spiritual persons'1, but in ordinary cafes, between spiritual men and lay men, are only to compel the payment of them, when the right is not disputed e. By the statute or rather writf of circumspecle agatisg, it is declared that the court christian shall not be prohibited from holding plea, "ft reclor petat versus parochia"nos oblaticnes et decimas debitas et confuetas:" so that if any dispute arises whether such tithes be due and accujlomed, this cannot be determined in the ecclesiastical court, but before the king's courts of the common law; as such question affects the temporal inheritance, and the determination must bind the real property. But where the right does not come into question, but only the fail, whether or no the tithes allowed to be due are really subtracted or withdrawn, this is a transient personal injury, for which the remedy may properly be had in the spiritual court; viz. the recovery of the tithes, or their equivalent. By statute 2 & 3 Edw. VI. c. 13. it is enacted, that if any person shall carry off his predial tithes (viz. of corn, hay, or the like) before the tenth part
e Scat. 32 Hen. VIII. c. 7. t See Barrington. 113. 3Pryn.Ree.
<t a Roll. Abr. 309,310. Bro. Abr. 336.
t.jurisJi&hn. 85. * 13 Edw. I. &. 4. or rather, 9 Edw.
c 2 Inst. 364. 489, 490. II.