1

ftatute 25 Hen. VIII. c. 19. to the king in chancery, inftead of the pope as formerly.

I PASS by fuch ecclefiaftical courts, as have only what is called a voluntary, and not a contentious, jurisdiction; which are merely concerned in doing or felling what no one opposes, and which keep an open office for that purpose, (as granting difpenfations, licences, faculties, and other remnants of the papal extortions) but do not concern themfelves with adminiftring redress to any injury: and shall proceed to

6. THE great court of appeal in all ecclefiaftical caufes, viz. the court of delegates, judices delegati, appointed by the king's commiffion under his great feal, and iffuing out of chancery, to reprefent his royal person, and hear all appeals to him made by virtue of the before-mentioned ftatute of Henry VIII. This commiffion is frequently filled with lords, fpiritual 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 firft introduced in very turbulent times in the fixteenth year of king Stephen (A.D. 1151.) at the same period (fir Henry Spelman obferves) that the civil and canon laws were first imported into England". But, in a few years after, to obviate this growing practice, the conftitutions made at Clarendon, 11 Hen. II. on account of the disturbances raised by archbishop Becket and other zealots of the holy fee, exprefsly declare, that appeals in caufes ecclefiaftical ought to lie, from the archdeacon to the diocefan; from the diocefan to the archbishop of the province; and from the archbishop to the king; and are not to proceed any farther without fpecial licence from the crown. But the unhappy advantage that was given in the reigns of king John, and his fon Henry the third, to the encroaching [67] power of the pope, who was ever vigilant to improve all op

n Ced. wet. g. 335.

chap. 8.

portunities

portunities of extending his jurisdiction hither, at length riveted the custom of appealing to Rome in caufes ecclefiaftical fo ftrongly, that it never could be thoroughly broken off, till the grand rupture happened in the reign of Henry the eighth ; when all the jurifdiction ufurped by the pope in matters ecclefiaftical was restored to the crown, to which it originally belonged fo that the ftatute 25 Hen. VIII. was but declaratory of the antient law of the realm ". But in cafe the king himself be party in any of these suits, the appeal does not then lie to him in chancery, which would be abfurd; but, by the ftatute 24 Hen. VIII. c. 12. to all the bishops of the realm, affembled in the upper houfe of convocation (1).

7. A COMMISSION of review is a commiffion fometimes granted, in extraordinary cafes, to revise the sentence of the court of delegates; when it is apprehended they have been led into a material error. This commiffion the king may grant, although the statutes 24 & 25 Hen. VIII. before cited declare the fentence of the delegates definitive: because the pope as fupreme head by the canon law ufcd to grant such commiffion of review; and fuch authority as the pope heretofore exerted, is now annexed to the crown by statutes 26 Hen. VIII. c. 1. and 1 Eliz. c. 1. But it is not matter of right, which the fubject may demand ex debito juftitiae ; but merely a matter of favour, and which therefore is often denied.

THESE are now the principal courts of ecclefiaftical jurifdiction; none of which are allowed to be courts of record:

(1) No fuch affembly can exift as all the bishops of the realm in any houfe of convocation. But the ftatute fays, that the appeal fhall be to the bishops, abbots, and priors of the upper house of the convocation of the province, in which the caufe of the fuit arifes. 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 1 vol. 280. n. 24.

no

no more than was another much more formidable jurifdiction, but now defervedly annihilated, viz. the court of the king's high commiffion in caufes ecclefiaftical. This court was erected and united to the regal power by virtue of the statute 1 Eliz. c. 1. instead of a larger jurifdiction which had before been exercised under the pope's authority. It was intended, [68] to vindicate the dignity and peace of the church, by reforming, ordering, and correcting the ecclefiaftical state and perfons, and all manner of errors, herefies, fchifms, abuses, offences, contempts, and enormities. Under the shelter of which very general words, means were found in that and the two fucceeding reigns, to veft in the high commiffioners extraordinary and almoft defpotic powers, of fining and imprifoning; which they exerted much beyond the degree of the offence itfelf, and frequently over offences by no means of fpiritual cognizance. For thefe reafons 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 fecond, ferved only to haften 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 marfhal of England jointly; but fince the attainder of Stafford duke of Buckingham under Henry VIII. and the confequent extinguishment of the office of lord high constable, it hath usually with respect to civil matters been held before the earl marfhal only. This court by ftatute 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 fentences 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

which our princes held in France: but is now grown almost entirely out of ufe, on account of the feebleness of it's jurifdiction, 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 fuch as have power and jurifdiction to determine all maritime injuries, arifing upon the feas, 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 ecclefiaftical courts; upon which account it is ufually held at the fame place with the fuperior ecclefiaftical courts, at doctors' commons in London. It is no court of record, any more than the fpiritual courts. From the fentences of the admiralty judge an appeal always lay, in ordinary course, to the king in chancery, as may be collected from ftatute 25 Hen. VIII. c. 19. which directs the appeal from the archbishop's courts to be determined by perfons named in the king's commiffion, "like as in cafe of appeal from the ad"miral-court." But this is alfo exprefsly declared by statute 8 Eliz. c. 5. which enacts, that upon appeal made to the chancery, the fentence definitive of the delegates appointed by commiffion fhall be final.

APPEALS from the vice-admiralty courts in America, and our other plantations and fettlements, may be brought before the courts of admiralty in England, as being a branch of the admiral's jurifdiction, though they may also be brought before the king in council. But in cafe of prize veffels, 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 commiffioners of appeals confifting

u 7 Mod. 127.

5

Glo 13.

* Ar. beion. 41.

chiefly

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 decifion of this question, whether lawful prize or not: for this being a question between fubjects of different ftates, 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 [] 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 confequence of treaties, commissioned under the great feal 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 commiffion then in being. But doubts being conceived concerning the validity of that commission, on account of fuch addition, the fame was confirmed by ftatute 22 Geo. II. c. 3. with a provifo, that no sentence given under it should be valid, unless a majority of the commiffioners prefent were actually privy counsellors. But this did not, I apprehend, extend to any future commissions: and fuch an addition became indeed totally unnecessary in the course of the war which commenced in 1756; fince, during the whole of that war, the commiffion 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.

See the fentiments of the prefident Montefquieu, and M. Vattel, (a subject of the king of Pruffia) on the answer tranfmitted by the English court to his

Pruffian majesty's Expofition des motifs, &c.A.D.1753. (Montefquieu's letters, 5 Mar. 1753. Vattel's droit de gens, 1.2. c. 7. § 84.)