CHAPTER THE FIFTH. OF COURTS ECCLESIASTICAL, MILITARY, AND MARITIME. ESIDES the feveral courts, which were treated of in B preceding in all dreffed, 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 ftill remain fome other courts of a jurifdiction equally public and general: which take cognizance of other species of injuries, of an ecclefiaftical, military, and maritime nature; and therefore are properly distinguished 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 jurisdiction: the county court was as much a spiritual 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 diocese, and the alderman, or in his abfence the fheriff of the county, ufed to fit together in the county court, and had there the cognizance of all causes 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 et aldermannus interfunto ; quorum alter jura divina, alter bumana populum edoceto. LL. Eadgar, c. 5• F 3 bishop bishop added weight and reverence to the fheriff's proceedings; and the authority of the fheriff was equally useful to the bishop, by enforcing obedience to his decree in fuch refractory offenders, as would otherwise have defpifed the thunder of mere ecclefiaftical cenfures. BUT fo moderate and rational a plan was wholly inconfiftent with thofe views of ambition, that were then forming by the court of Rome. It foon became an established maxim in the papal fyftem of policy, that all ecclefiaftical perfons and all ecclefiaftical caufes fhould be folely and entirely fubject to ecclefiaftical jurisdiction only: which jurisdiction was supposed to be lodged in the first 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 some 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, difmifling them with this valediction; "ite "et inter vos caufas vefiras 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 ecclefiaftical court from the civil: whether actuated by principles of bigotry, or by thofe of a more refined policy, in order to discountenance the laws of king Edward abounding with the fpirit of Saxon liberty, is not altogether Decret. part. 2. cauf. 11. qu. 1. c. 41. • Ibid. certain. certain. But the latter, if not the caufe, was undoubtedly the confequence, of this feparation: for the Saxon laws were foon overborne by the Norman jufticiaries, when the county. court fell into disregard by the bishop's withdrawing his prefence, in obedience to the charter of the conqueror'; which prohibited any spiritual cause from being tried in the fecular courts, and commanded the fuitors to appear before the bishop only, whofe decifions were directed to conform to the canon law, KING Henry the first, at his acceffion, among other reftorations of the laws of king Edward the confeffor, revived this of the union of the civil and ecclefiaftical courts f. Which was, according to fir Edward Coke, after the great heat of the conqueft was paft, only a reftitution of the antient law of England. This however was ill relished by the popish clergy, who, under the guidance of that arrogant prelate archbishop Anfelm, very early difapproved of a measure that put them on a level with the profane laity, and subjected spiritual men and caufes to the infpection of the secular magiftrates: and therefore in their fynod at Westminster, 3 Hen. I. they ordained that no bifhop fhould attend the difcuffion of temporal caufes; which foon diffolved this newly effected union. And when, upon the death of king Henry the first, d Ha'e. Hift. C. L. 102. Selden. in Eadm. p. 6. 1. 24. 4 Inft. 259. Wilk. LL. Angl. Sax. 292. • Nullus epifcopus vel archidiaconus de legibus epifcopalibus amplius in bundret placita teneant, ner caufam quae ad regimen an marum pertinet ad judicium fecularium bominum adducant : fed quicunque fecundum epifcopales liger, de quacunque can เแผ่น vel catpa interpellatus fuerit, ad locum, quem ad boc epiti opus elegerit et nominavert, veniat; ibique de caufa fua reffondeat ; et non fecundum bundret, jed jecundum canones et epi'copales higes, reétun. D、o er epilcope fuo faciat. Velo et praccipio, ut omnes de comitatu eant ad comitatus et bundreda, ficut fece- h Ne epifcopi faecularium placitorum officium fufcipiant. Speim. Cod. 301. F 4 the BOOK III. the ufurper Stephen was brought in and fupported by the clergy, we find one article of the oath which they impofed upon him was, that ecclefiaftical perfons and ecclefiaftical caufes fhould be fubject only to the bishop's jurisdiction 1. And as it was about that time that the contest and emulation began between the laws of England and thofe of Rome, the temporal courts adhering to the former, and the spiritual adopting the latter as their rule of proceeding, this widened the breach between them, and made a coalition afterwards impracticable; which probably would elfe have been effected at the general reformation of the church. IN briefly recounting the various fpecies of ecclefiaftical courts, or, as they are often ftiled, courts chriftian, (curiae chriftianitatis) I fhall begin with the loweft, and fo afcend gradually to the fupreme court of appeal'. 1. THE archdeacon's court is the most inferior court in the whole ecclefiaftical polity. It is held in the archdeacon's abfence before a judge appointed by himself, and called his official and it's jurifdiction is fometimes in concurrence with, fometimes in exclufion of, the bishop's court of the diocese. From hence however by ftatute 24 Hen. VIII. c. 12. an appeal lies to that of the bishop. 2. THE confiftory court of every diocefan bishop is held in their feveral cathedrals, for the trial of all ecclesiastical causes arifing within their refpective diocefes. The bishop's chancellor, or his commiffary, is the judge; and from his sentence an appeal lies, by virtue of the fame ftatute, to the archbishop of each province refpectively. 3. THE Court of arches is a court of appeal belonging to the archbishop of Canterbury; whereof the judge is called [65] the dean of the arches; because he antiently held his court in i Ibid. 310. * See Vol. I. introd. § 1. For farther particulars fee Burn's ecclefiaftical law, Wood's inflitute of the common law, and Oughton's orde judiciorum. the the church of St. Mary le bow, (fancta Maria de arcubus) though all the principal fpiritual courts are now holden at doctors' commons. His proper jurisdiction is only over the thirteen peculiar parishes belonging to the archbishop in London; but the office of dean of the arches having been for a long time united with that of the archbishop's principal official, he now, in right of the last mentioned office, (as doth alfo the official principal of the archbishop of York) receives and determines appeals from the fentences of all inferior ecclefiaftical courts within the province. And from him an appeal lies to the king in chancery (that is, to a court of delegates appointed under the king's great feal) by statute 25 Hen. VIII. c. 19. as fupreme head of the English church, in the place of the bishop of Rome, who formerly exercised this jurifdiction; which circumftance alone will furnish the reason why the popish clergy were fo anxious to feparate the fpiritual court from the temporal. 4. THE Court of peculiars is a branch of and annexed to the court of arches. It has a jurifdiction over all those parishes difperfed through the province of Canterbury in the midst of other diocefes, which are exempt from the ordinary's jurif diction, and fubject to the metropolitan only. All ecclefiastical causes, arifing within these peculiar or exempt jurisdictions, are, originally, cognizable by this court; from which an appeal lay formerly to the pope, but now by the ftatute 25 Hen. VIII. c. 19. to the king in chancery. 5. THE prerogative court is established for the trial of all teftamentary caufes, where the deceased hath left bona nota bilia within two different diocefes. In which case the probate of wills belongs, as we have formerly feen", to the archbishop of the province, by way of special prerogative. And all caufes relating to the wills, administrations, or legacies of fuch perfons are, originally, cognizable herein, before a judge appointed by the archbishop, called the judge of the prerogative court; from whom an appeal lies by [66] m Book II. ch. 32. ftatute |