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vacations after Hilary and Trinity terms; assists being allowed to be taken in the holy time of lent by consent of the bishops at the king's request, as expressed in statute Westra. I. 3 Edw. I. c. 51. And it was also usual, during the times of popery, for the prelates to grant annual licences to the justices of assise to administer oaths in holy times: for oaths being of a sacred nature, the logic of those deluded ages conL 6° ] eluded that they must be of ecclesiastical cognizances. The 'prudent jealousy of our ancestors ordainedr, that no man of law should be judge of assise in his own country, wherein he 1 wasborn,or doth inhabit (8): and a similar prohibition is found in the civil law % which has carried this principle so far, that it is equivalent to the crime of sacrilege, for a man to be governor of the province in which he was born, or has any civil connexion'.
The judges upon their circuits now sit by virtue of five several authorities. 1. The commission of the peace. 2. A commission of over and terminer. 3. A commission of general gao/ de/iwry. The consideration of all which belongs properly to the subsequent book of these commentaries. But the fourth commission is, 4. A commission of ajjise, directed to the justices, and serjeants therein named, to take (together with their associates) assises in the several counties; that is, to take the verdict of a peculiar species of jury, called an assise and summoned for the trial of landed disputes, of which hereafter. The other authority is, 5. That of nisi prius, which is a consequence of the commission of ajjise u, being annexed to the
1 Instances hereof may be met with in r. 1. 33 Hen. VIII. c. 14. the appendix to i>pe!man'« otiginal of • Ff. 1. 22. 3.
theterms, anil in Mr. Parker's Antiqui- « C. 9. 29. 4.
tiei. 209. « Salk. 454.
rStat.4Edw.IH. c.2. 8 Rich. II.
(8) This restriction was construed to extend to every commission of the judges; but it being found very inconvenient, the 12 Geo. II. c. 2j. was enacted for the express purpose of authorizing the commissioners of ojer and terminer, and of gaol delivery, to execute their commissions in the criminal courts within the counties in which they were born, or in which they reside. See 4 vol. 171. 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 issuing out of the courts at "Westminster, that are then ripe for trial by jury. These by the course of the courts w are usually appointed to be tried at Westminster in some Easter or Michaelmas term, by a jury returned from the county wherein the cause of action arises; but with this proviso, vjfiprius, unless before the day prefixed the judges of assisc come into the county in question. This they are sure to do in the vacations preceding each Easter and Michaelmas term, which saves much expense and trouble. These commissions are constantly accompanied by writs of association, in pursuance of the statutes of Edward I and II before mentioned; whereby [ 59* ] certain persons (usually the clerk os assise 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 assises, &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 of Ji non omnes ,- directing, that if all cannot be present, any two es 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 ©economy 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 »n 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 juris
* Sc: sh. s;. p.ij. 355.
diction. Now, indeed, for the ease os 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 are 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 cases two successive courts of appeal, to rectify such their mistakes. If the rigour of general rules does in any cafe bear hard upon individuals, courts of equity are open to supply the defects, but not sap the fundamentals, of the law. Lastly, there presides C °"°* 3 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 nequilibrium among all the inferior jurisdictions: a court composed of 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.
CHAPTER THE FIFTH.
Of COURTS ECCLESIASTICAL, MILITARY, And MARITIME.
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
» CtUltrrmt bulccumintui rpifiofw juradi-vir.j, alterhumanaftjuhmedecett. it lUirjTurnut inttrfiuito ; juerum alter LL. Eedgar. c. 5.
F 3 bishop bifliop added weight and reverence to the sheriff's proceedings; and the authority of the sheriff was equally useful lo the bifliop, by enforcing obedience to his decree in such refractory offenders, as would otherwise have despised the thunder of 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 "sacerdoUs a regibus homrandi sunt, non judicandih,•" 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, he caused (says the holy canon) the petitions to be burnt in their presence, dismissing them with this valediction; "Ut "tt inter ves caufas vejlras difeutite, quit! dignum non ejl ut nos "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 os a more refined policy, in order to discountenance the laws of king Edward abounding with the spirit of Saxon liberty, is not altogether
I' Dare:, tart, z. ttuj. 11. au. I. c. 41. * Ibid.