the fame time removing the delays that have infenfibly crept into their proceedings, and the power that either party have of transferring at pleasure their fuits to the courts at Weftminster! And we may with fatisfaction obferve, that this experiment has been actually tried, and has fucceeded in the populous county of Middlefex; which might ferve as an example for others. For by ftatute 23 Geo. II. c. 33. it is enacted, 1. That a special county court shall be held, at least once a month, in every hundred of the county of Middlefex, by the county clerk. 2. That twelve freeholders of that hundred, qualified to ferve on juries, and ftruck by the sheriff, shall be fummoned to appear at fuch court by rotation; fo as none shall be summoned ofténer than once a year. 3. That in all caufes, not exceeding the value of forty fhillings, the county clerk and twelve fuitors fhall proceed in a summary way, examining the parties and witneffes on oath, without the formal procefs antiently used: and fhall make fuch order therein as they fhall judge agreeable to confcience. 4. That no plaints shall be removed out of this court, by any process whatfoever; but the determination herein fhall be final. 5. That if any action be brought in any of the fuperior courts against a perfon refident in Middlesex, for a debt or contract, upon trial whereof the jury fhall find lefs than 40s. damages, the plaintiff fhall recover no costs, but fhall pay the defendant double costs; unless upon some special circumstances, to be certified by the judge who tried it. 6. Laftly, a table of very moderate fees is prescribed and fet down in the act; which are not to be exceeded upon any account whatfoever. This is a plan entirely agreeable to the conftitution and genius of the nation calculated to prevent a multitude of vexatious actions in the fuperior courts, and at the fame time to give honest creditors an opportunity of recovering small sums; which now they are frequently deterred from by the expense of a fuit at law a plan which, one would think, wants only to be generally known, in order to it's univerfal reception. the X. THERE is yet another fpecies of private courts, which I must not pass over in filence: viz. the chancellor's courts in the two univerfities of England. Which two learned kodies enjoy the fole jurifdiction, in exclufion of the king's courts, over all civil actions and suits whatsoever, when a fcholar or privileged perfon is one of the parties; excepting in fuch cafes where the right of freehold is concerned. And thefe by the univerfity charter they are at liberty to try and determine, either according to the common law of the land, or according to their own local cuftoms, at their difcretion; which has generally led them to carry on their process in a courfe much conformed to the civil law, for reafons fufficiently explained in a former volume *. THESE privileges were granted, that the ftudents might not be distracted from their ftudies by legal procefs from diftant courts, and other forenfic avocations. And privileges of this kind are of very high antiquity, being generally enjoyed by all foreign universities as well as our own, in confequence (I apprehend) of a conftitution of the emperor Frederick, A. D. 1158'. But as to England in particular, the oldest charter that I have feen, containing this grant to the univerfity of Oxford, was 28 Hen. III. A. D. 1244. And the same privileges were confirmed and enlarged by almost every fucceeding prince, down to king Henry the eighth; in the fourteenth year of whofe reign the largest and most extenfive charter of all was granted. One fimilar to which was afterwards granted to Cambridge in the third year of queen Elizabeth. But yet, notwithstanding thefe charters, the privileges granted therein, of proceeding in a course different from the law of the land, were of fo high a nature, that they were held to be invalid; for though the king might erect new courts, yet he could not alter the courfe 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 thofe of 14 Hen. VIII. and 3 Eliz. by Which bleffed act, as fir Edward Coke entitles it", eftablished this high privilege without any doubt or opposition: or, as fir Matthew Hale P very fully expreffes the fenfe name. of the common law and the operation of the act of parliament, "although king Henry the eighth, 14 A. R. fui, "granted to the univerfity 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 "fufficient to have warranted fuch proceedings without the "help of an act of parliament. And therefore in 13 Eliz. "an act paffed, 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, fo far as it relates to civil causes, is exercifed at Oxford in the chancellor's court; the judge of which is the vice-chancellor, his deputy, or affeffor. From his fentence 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 fame fentence it is final, at least by the ftatutes of the university, according to the rule of the civil law. But, if there be any dif cordance or variation in any of the three fentences, an appeal lies in the last resort to judges delegates appointed by the crown under the great feal in chancery. I HAVE now gone through the several fpecies of private, or fpecial courts, of the greatest note in the kingdom, instituted for the local redrefs of private wrongs; and must, in the close of all, make one general obfervation from fir Edward Coke that these particular jurifdictions, derogating from the general jurifdiction 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. a Tit. 21. §. 19. Cod. 7. 70. I. s 2 Inft. 548. F 4 CHAPTER THE SEVENTH. OF THE COGNIZANCE OF PRIVATE WRONGS. WE are now to proceed to the cognizance of private wrongs; that is, to confider in which of the vast variety of courts, mentioned in the three preceding chapters, every poffible injury that can be offered to a man's person or property is certain of meeting with redress. THE authority of the feveral courts of private and special jurisdiction, or of what wrongs fuch courts have cognizance, was neceffarily remarked as thofe refpective tribunals were enumerated; and therefore need not be here again repeated: which will confine our prefent inquiry to the cognizance of civil injuries in the several courts of public or general jurifdiction. And the order, in which I fhall pursue this inquiry, will be by fhewing; 1. What actions may be brought, or what injuries remedied, in the ecclefiaftical 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 fo much to confider what hath at any time been claimed or pretended to belong to their jurifdiction, by the officers and judges of those respective courts; but what the common law allows and permits to be fo. For these eccentrical tribunals (which were principally guided by the rules of the imperial and canon laws) as they fubfift and are ad mitted in England, not by any right of their own, but upon bare fufferance 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 difcuffed or drawn in queftion before them. It matters not therefore what the pandects of Justinian, or the decretals of Gregory have ordained. They are here of no more intrinfic authority than the laws of Solon and Lycurgus: curious perhaps for their antiquity, refpectable for their equity, and frequently of admirable use in illuftrating a point of hiftory. Nor is it at all material in what light other nations may confider this matter of jurisdiction. Every nation must and will abide by it's own municipal laws; which various accidents confpire to render different in almost every country in Europe. We permit fome kinds of fuits to be of ecclefiaftical cognizance, which other nations have referred entirely to the temporal courts; as concerning wills and fucceffions. to inteftates' chattels and perhaps we may, in our turn, prohibit them from interfering in fome controverfies, which on the continent may be looked upon as merely fpiritual. In fhort, the common law of England is the one uniform rule to determine the jurifdiction 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 fome cafes punish their judges ". : HAVING premised this general caution, I proceed now to confider I. THE Wrongs or injuries cognizable by the ecclefiaftical courts. I mean such as are offered to private persons or individuals; which are cognizable by the ecclefiaftical court, not for reformation of the offender himself or party injuring (pro falutae 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 a See Vol. I. introd. §. I. b Hal. Hift. C. L. c. 2. the |