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ftatutc 23 Hon. VIII. c. 19. to the king in chancery, instead of the pope as formerly.
I pass by such ecclesiastical courts, as liave only what is called a voluntary, and not a contentious, jurisdiction; which are merely concerned in doing or selling what no one opposes, and which keep an open office for that purpose, (as granting dispensations, licences, faculties, and other remnants of the papal extortions) but do not concern themselves with administring redress to any injury: and shall proceed to
6. The great court of appeal in all ecclesiastical causes, viz. the court of delegates, judices delegati, appointed by the king's commission under his great seal, and issuing out of chancery, to represent his royal person, and hear all appeals to him made by virtue of the before-mentioned statute of Henry VIII. This commission is frequently filled with lords, spiritual and temporal, and always with judges of the courts at Westminster, and doctors of the civil law. Appeals to Rome were always looked upon by the English nation, even in the times of popery, with an evil eye; as being contrary to the liberty of the subject, the honour of the crown, and the independence of the whole realm ; and were first introduced in very turbulent times in the fixteenth year of king Stephen (A.D. 1151.) at the same period (fir Henry Spelman observes) that the civil and canon laws were first imported into England". But, in a few years after, to obviate this growing practice, the constitutions made at Clarendon, ni Hen. II. on account of the disturbances raised by archbishop Becket and other zealots of the holy fee, expressly declare", that appeals in causes ecclesiastical ought to lie, from the archdeacon to the diocesan; from the diocesan to the archbishop of the province; and from the archbishop to the king; and are not to proceed any farther without special licence from the crown. But the unhappy advantage that was given in the reigns of
king John, and his son Henry the third, to the encroaching į 67 i power of the pope, who was ever vigilant to improve all opCod. ver.'. 315,
o chap. 8.
portunities of extending his jurisdiction hither, at length ri. veted the custom of appealing to Rome in causes ecclesiastical so ftrongly, that it never could be thoroughly broken off, till the grand rupture happened in the reign of Henry the eighth; when all the jurisdiction usurped by the pope in matters ecclesiastical was restored to the crown, to which it originally belonged : so that the statute 25 Hen. VIII. was but declaratory of the antient law of the realm P. But in case the king himself be party in any of these suits, the appeal does not then lie to him in chancery, which would be absurd ; but, by the statute 24 Hen. VIII. c. 12. to all the bishops of the realm, assembled in the upper house of convocation (1).
7. A COMMISSION of review is a commission fometimes granted, in extraordinary cases, to revise the sentence of the court of delegates ; when it is apprehended they have been led into a material error. This commission the king may grant, although the statutes 24 & 25 Hen. VIII. before cited declare the sentence of the delegates definitive : because the pope as supreme head by the canon law used to grant such commission of review ; and such authority as the pope heretesore exerted, is now annexed to the crown 9 by statutes 26 Hen. VIII. c. 1. and 1 Eliz. c. 1. But it is not matter of right, which the subject may demand ex debito juftitiae ; but merely a matter of favour, and which therefore is often denied.
Tause are now the principal courts of ecclesiastical jurifdiction; none of which are allowed to be courts of record : · P4 Inft. 341.
(1) No such assembly can exist as all the bishops of the realm in any house of convocation. But the statute says, that the appeal fall be to the bishops, abbots, and priors of the upper house of the convocation of the province, in which the cause of the fuit arises. Therefore in the province of York, the appeal lies now to the archbishop and his three bishops. In the province of Canterbury, to the rest of the bench of bishops. See i vol. 280. n. 24.
no more than was another much more formidable jurisdiction, but now deservedly annihilated, viz. the court of the king's high commision in causes ecclefiaftical. This court was erected and united to the regal powers by virtue of the statute i Eliz. c. 1. instead of a larger jurisdiction which had before
been exercised under the pope's authority. It was intended, [ 08 ] to vindidate the dignity and peace of the church, by reform-"
ing, ordering, and correcting the ecclesiastical state and perfons, and all manner of errors, heresies, schisms, abuses, ofences, contempts, and enormities. Under the shelter of which very general words, means were found in that and the two succeeding reigns, to vest in the high commissioners extraordinary and almost despotic powers, of fining and imprisoning ; which they exerted much beyond the degree of the offence itself, and frequently over offences by no means of spiritual cognizance. For these reasons this court was justly abolished by statute 16 Car. I. c. 11. And the weak and illegal attempt that was made to revive it, during the reign of king James the second, served only to hasten that infatuated prince's ruin.
II. Next, as to the courts military. The only court of this kind known to, and established by, the permanent laws of the land, is the court of chivalry, formerly held before the lord high constable and earl marshal of England jointly; but fince the attainder of Stafford duke of Buckingham under Henry VIII. and the consequent extinguishment of the office of lord high constable, it hath usually with respect to civil matters been held before the earl marshal only This court by statute 13 Ric. II. c. 2. hath cognizance of contracts and other matters touching deeds of arms and war, as well out of the realm as within it. And from it's sentences an appeal lies immediately to the king in person. This court was in great reputation in the times of pure chivalry, and afterwards during our connexions with the continent, by the territories
14 Int. 125.
? 4 Inf. 324.
1 Lev. 230. Show. Parl. Cal. 60,
which our princes held in France : but is now grown almost entirely out of use, on account of the feebleness of it's jurisdiction, and want of power to enforce it's judgments; as it can neither fine nor imprison, not being a court of record “.
III. The maritime courts, or such as have power and jurisdiction to determine all maritimne injuries, arising upon the seas, or in parts out of the reach of the common law, are [ 69.] only the court of admiralty, and it's courts of appeal. The court of admiralty is held before the lord high admiral of England, or his deputy, who is called the judge of the court. According to fir Henry Spelman", and Lambard », it was first of all erected by king Edward the third. It's proceedings are according to the method of the civil law, like those of the ecclesiastical courts; upon which account it is usually held at the same place with the superior ecclesiastical courts, at doctors' commons in London. It is no court of record, any more than the spiritual courts, From the sentences of the admiralty judge an appeal always lay, in ordinary course, to the king in chancery, as may be collected from itatute 25 Hen. VIII. c. 19. which directs the appeal from the archbishop's courts to be determined by persons named in the king's commission, “like as in case of appeal from the ad“ miral-court.” But this is also expressly declared by statute 8 Eliz, C. 5. which enacts, that upon appeal made to the chancery, the sentence definitive of the delegates appointed by commission shall be final.
APPEALS from the vice-admiralty courts in America, and our other plantations and settlements, may be brought before the courts of admiralty in England, as being a branch of the admiral's jurisdiction, though they may also be brought before the king in council. But in case of prize vefsels, taken in time of war, in any part of the world, and condemned in any courts of admiralty or vice admiralty as lawful prize, the appeal lies to certain commissioners of appeals consisting 37 Mod. 127, w G!0,7. 13. * Ar beion. 41.
chiefly of the privy council, and not to judges delegates. And this by virtue of divers treaties with foreign nations ; by which particular courts are established in all the maritime countries of Europe for the decision of this question, whether lawful prize or not: for this being a question between subjects of different states, it belongs entirely to the law of nations, and not to the municipal laws of either country, to
determine it. The original court, to which this question is o ] permitted in England, is the court of admiralty; and the
court of appeal is in effect the king's privy council, the members of which are, in consequence of treaties, commillioned under the great seal for this purpose. In 1748, for · the more speedy determination of appeals, the judges of the
courts of Westminster-hall, though not privy counsellors, were added to the commission then in being. But doubts being conceived concerning the validity of that commission, on account of such addition, the same was confirmed by statute 22 Geo. II. c. 3. with a proviso, that no sentence given under it should be valid, unless a majority of the commissioners present were actually privy counsellors. But this did not, I apprehend, extend to any future commissions : and such an addition became indeed totally unnecessary in the course of the war which commenced in 1756; lince, during the whole of that war, the commission of appeals was regularly attended and all it's decisions conducted by a judge, whose masterly acquaintance with the law of nations was known and revered by every state in Europe Y.
y See the sentiments of the president Prussian majesty's Exposition des motifs, Montesquieu, and M. Vattel, (a subject &c. A.D.1753. (Montesquieu's letters, of the king of Pruflia) on the answer S Mar. 1753. Vattel's droit de gens, transmitted by the English court to his 18.104.22.168.8 84.)