82 CHAPTER VII. 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 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." 66 'In this chapter, Sir W. Blackstone also deals with' the injuries cognizable in the Court Military, or Court of Chivalry; the jurisdiction of which is declared by statute 13 Ric. II. c. 2, to be this: "that it hath cognizance of con"tracts touching deeds of arms or of war out of the realm, and also of things which touch war within the "realm, which cannot be determined or "discussed by the common law; to"gether with other usages and customs "to the same matters appertaining." So that wherever the common law could give redress, this court had no jurisdiction which soon threw it entirely out of use as to the matters of contracts, all such being usually cognizable in the courts of Westminster Hall, if not directly, at least by fiction of law as if a contract were made at Gibraltar, the plaintiff might suppose it made at Northampton; for the locality, or place of making it, is of no consequence with regard to the validity of the contract. The words, "other usages and customs," support the claim of this court, 1. To give relief to such of the nobility and gentry as think themselves aggrieved in matters of honour; and 2. To keep up the distinction of degrees and quality. Whence it follows, that the civil jurisdiction of this court of chivalry is principally in two points: the redressing injuries of honour, and correct ing encroachments in matters of coatarmour, precedency, and other distinctions of families. As a court of Honour, it is to give satisfaction to all such as are aggrieved in that point; a point of a nature so nice and delicate, that its wrongs and injuries escape the notice of the common law, and yet are fit to be redressed somewhere. Such, for instance, as calling a man a coward, or giving him the lie; for which, as they are productive of no immediate damage to his person or property, no action will lie in the courts at Westminster; and yet they are such injuries as will prompt every man of spirit to demand some honourable amends, which by the ancient law of the land was appointed to be given in the court of chivalry. But modern resolutions have determined, that how much soever such a jurisdiction may be expedient, yet no action for words will at present lie therein. And it has always been most clearly held, that as this court cannot meddle with anything determinable by the common law, it therefore can give no pecuniary satisfaction or damages, inasmuch as the quantity and determination thereof is ever of common law cognizance. And therefore this court of chivalry can at most only order reparation in point of honour; as, to compel the defendant mendacium sibi ipsi imponere, or to take 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 shall pursue this inquiry, will be by showing-1. What actions may be brought, or what injuries remedied, in the ecclesiastical courts. 2. What in the Probate, Divorce, and Admiralty division of the High Court of Justice. And, 3. What in the the lie that he has given upon himself, or to make such other submission as the laws of honour may require. Neither can this court, as to the point of reparation in honour, hold plea of any such word or thing, wherein the party is relievable by the courts of common law. As if a man gives another a blow, or calls him a thief or murderer; for in both these cases the common law has pointed out his proper remedy by action. As to the other point of its civil jurisdiction, the redressing of encroachments and usurpations in matters of heraldry and coat-armour: it is the business of this court, according to Sir Matthew Hale, to adjust the right of armorial ensigns, bearings, crests, supporters, pennons, &c.; and also rights of place or precedence, where the king's patent or act of parliament, which cannot be overruled by this court, have not already determined it. But as it cannot imprison, not being a court of record, and as by the resolutions of the superior courts it is now confined to so narrow and restrained a jurisdiction, this court has fallen into contempt and disuse. The marshalling of coat-armour, which was formerly the pride and study of all the best families in the kingdom, is now greatly disregarded; and has fallen into the hands of certain officers and attendants upon this court, called heralds, who consider it only as a matter of lucre, and not of justice; whereby such falsity and confusion have crept into their records, which ought to be the standing evidence of families, descents, and coat-armour, that, though formerly some credit has been paid to their testimony, now even their common seal will not be received as evidence in any court of justice in the kingdom. But their original visitationbooks, compiled when progresses were solemnly and regularly made into every part of the kingdom, to inquire into the state of families, and to register such marriages and descents as were verified to them upon oath, are allowed to be good evidence of pedigrees. And it is much to be wished, that this practice of visitation at certain periods were revived; for the failure of inquisitions post mortem, by the abolition of military tenures, combined with the negligence of the heralds in omitting their usual progresses, has rendered the proof of a modern descent, for the recovery of an estate or succession to a title of honour, more difficult than that of an ancient. This has been indeed remedied, with respect to claims of peerage, by the standing order of the House of Lords: directing the heralds to take exact accounts, and preserve regular entries of all peers and peeresses of England, and their respective descendants; and that an exact pedigree of each peer and his family shall, on the day of his first admission, be delivered into the house by Garter, the principal king-at-arms. But the general inconvenience, affecting more private successions, still continues without a remedy. See post, p. 99; as to validity of marriages.' several divisions of the High Court of Justice itself. I adopt this course, because, as we have seen, each of the divisions of the High Court retains the special jurisdiction of the court, whose designation it bears; and I shall further endeavour, for the same reason, to point out as I proceed what other remedies are, in particular cases, open to the parties injured, and especially when it may be more desirable to resort to the Chancery division, the special or peculiar jurisdiction of which will form the subject of a separate chapter.' 'With regard then to the ecclesiastical courts, and the remark applied to the military and maritime courts,' I must beg leave not so much to consider what has at any time been claimed or pretended to belong thereto by the officers and judges of those respective courts; but what the common law allows and permits to be so. For these tribunals, which have always been' principally guided by the rules of the imperial and canon laws, as they subsist and are admitted 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 edicts 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 its own municipal laws; which various accidents conspire to render different in almost every country in Europe. We 'long' permitted some kinds of suits to be of ecclesiastical cognizance, which other nations 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 in other countries' may be looked upon as merely spiritual. In short, the common law in 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 High Court will' prohibit them; and in some cases 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, pro salute animæ, as is the case with immoralities in general, when unconnected with private injuries; but for the sake of the party injured, to make him a satisfaction and redress for the damage which he has sustained. 'These wrongs were until comparatively recently treated of' under three general heads-causes pecuniary, causes testamentary, and causes matrimonial; but the jurisdiction of the Courts Christian, in causes testamentary and matrimonial, having been transferred to other tribunals, they now take cognizance only of' Pecuniary causes, which 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; 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 from the parson or vicar, whether the former be a clergyman or a lay appropriator." But herein a distinction must be taken for the ecclesiastical courts have no jurisdiction to try the right of tithes unless between spiritual persons; but in ordinary cases, between spiritual men and lay men, are only to compel the payment of them, when the right is not disputed. By the statute of circumspecte agatis, 13 Edw. I. st. 4, it is declared that the court christian shall not be prohibited from holding plea, "si rector petat "versus parochianos oblationes et decimas debitas et consuetas: that if any dispute arises whether such tithes be due and accustomed, this cannot be determined in the ecclesiastical, but only before the civil court; 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 fact, whether or no the tithes allowed to be due are really sub b Stat. 32 Hen. VIII. c. 7. 2 Inst. 361, 489, 490. SO tracted 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 is duly set forth, or agreement is made with the proprietor, or shall willingly withdraw his tithes of the same, or shall stop or hinder the proprietor of the tithes or his deputy from viewing or carrying them away; such offender shall pay double the value of the tithes, with costs to be recovered before the ecclesiastical judge, according to the king's ecclesiastical laws. By a former clause of the same statute, the treble value of the tithes, so subtracted or withheld, may be sued for in the temporal courts, which is equivalent to the double value to be sued for in the ecclesiastical. For one may sue for and recover in the ecclesiastical courts the tithes themselves, or a recompence for them, by the ancient law; to which the suit for the double value is superadded by the statute. But as no suit lay in the temporal courts for the subtraction of tithes themselves, therefore the statute gave a treble forfeiture, if sued for there; in order to make the course of justice uniform, by giving the same reparation in one court as in the other. However, it now seldom happens that tithes are sued for at all in the spiritual court; for if the defendant pleads any custom, modus, composition, or other matter whereby the right of tithing is called in question, this takes it out of the jurisdiction of the ecclesiastical judges. But a more summary method than either of recovering small tithes under the value of forty shillings was given by statute 7 & 8 Will. III. c. 6, by complaint to two justices of the peace; and, by another statute of the same year, c. 34, the same remedy was extended to all tithes withheld by Quakers under the value of ten pounds. This summary method of proceeding is extended, by the statute 53 Geo. III. c. 127, to all tithes, oblations, and compositions of less amount than ten pounds, or, where due from Quakers, fifty pounds; and in either case one justice is competent to hear the original complaint, and to cause the offender to be summoned before two. Finally, the statute 5 & 6 Will. IV. c. 74, amended by statute 4 & 5 Vict. c. 36, has made this the only remedy, except where the actual title to the tithe, or the actual d Sir W. Blackstone adds: For the law will not suffer the existence of such a right to be decided by the sentence of any single, much less an ecclesiastical judge, without the verdict of a jury. See Com. vol. iii. p. 89. |