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« common law cognizance, where either of the parties is “ privileged."
This privilege, so far as it relates to civil causes, is exer. cifed at Oxford in the chancellor's court; the judge of which is the vice-chancellor, his deputy, or affeffor. From his fentence an appeal lies to delegates appointed by the congregation; from thence to other delegates of the house of con. vocation ; and if they all three concur in the same sentence it is final, at least by the statutes of the university ?, according to the rule of the civil law'. But, if there be any difcordance or variation in any of the three sentences, an appeal lies in the last resort to judges delegates appointed by the crown under the great seal in chancery.
I have now gone through the several species of private, or special courts, of the greatest note in the kingdom, infti. tuted for the local redress of private wrongs; and must, in the close of all, make one general observation from Gr Ed. ward Coke': that these particular jurisdictions, derogating from the general jurisdiction of the courts of common law, are ever strictly restrained, and cannot be extended farther than the express letter of their privileges will most explicitly warrant.
9 Tit. 21. $ 19. s Cod. 7.70.1.
$ 2 Inft. 548.
CHAPTER THE SEVENTH,
of the COGNIZANCE OF PRIVATE
E are now to proceed to the cognizance of private
V wrongs; that is, to consider in which of the valt variety of 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.
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 shewing; 1. What actions may be brought, or what injuries remedied, in the ecclesiastical courts. 2. What in the military. 3. What in the maritime. And 4. What in the courts of common law.
And with regard to the three first of these particulars, I must beg leave not so much to consider what hath at any time been claimed or pretended to belong to their jurisdiction, by the officers and judges of those respective courts; but what the common law allows and permits to be so. For these eco centrical tribunals (which were principally guided by the rules of the imperial and canon laws) as they sublist 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 discufied or drawn in question before them. It matters not therefore what the pandects of Juftinian, 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 it's own municipal laws; which various accidents conspire to render different in almost every country in Europe. We permit some kinds of suits to be of ecclesia astical cognizance, which other nations have referred entirely to the temporal courts; as concerning wills and succeslions to intestates' chạttels : and perhaps we may, in our turn, prohibit them from interfering in some controversies, which on the continent may be looked upon as merely spiritual. In short, the common law of England is the one uniform rule to determine the jurisdiction of our courts: and, if any tribunals whatsoever attempt to exceed the limits fo prescribed them, the king's courts of common law may and do 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 falute animae, 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 - a Ste Vol. I. introd. 91.
b Hal. Hist, C. L. c. 2.
the damage which he has sustained. And these I shall reduce under three general heads; of causes pecuniary, causes matrimonial, and causes testamentary.
1. PECUNIARY caufes, cognizable in the ecclesiastical courts, are such as arise either from the withholding ecclefiaftical dues, or the doing or neglecting some act relating to the church, whereby fome 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 fubtraction 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 or rather writ of circumspecte agatisk, it is declared that the court christian shall not be prohibited from holding plea, "si rector petat versus parochia“ nos oblationes et decimas debitas et confuetas :” so that if any dispute arises whether such tithes be due and accustomed, this cannot be determined in the ccclefiaftical court, but before the king's courts of the common law; 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 subtracted 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
Stat. 32 Hen. VIII. c. 7. d 2 Roll. Abr. 309, 310, Bro. Abr. 1. jurisdicti.n. 85. € 2 Inft. 364. 489, 490.
. VOL. III,
See Barrington. 123. 3 Pryn. Rec. 336."
813 Edw. I, 1t. 4. or rather, 9 Edw. II,
is duly set forth, or agreement is made with the proprietor, or Thall 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, fo subtracted or withheld, may be sued for in the temporal courts, which is equivalent to the double value to be sued for in the ecclefiaftical. For one may sue for and recover in the ecclesiastical courts the tithes themselves, or a recompense for them, by the antient law; to which the suit for the double value is fuperadded by the statute. But as no suit lay in the temporal courts for the fubtraction 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 h. However it now seldom happens that tithes are sued for at all in the spiritual court; for if the defendant pleads any custom, mollus, composition, or other matter whereby the right of tithing is called in question, this takes it out of the jurisdiction of the ecclefiaftical judges; for the law will not fuffer the existence of such a right to be decided by the sentence of any single, much less an ecclefiaftical, judge; without the verdict of a jury. But a more summary method than either of recovering small tithes under the value of 40 s. is given by statute 7 & 8 W. III. c. 6. by complaint to two justices of the peace: and, by another statute of the same year, c. 34. the same remedy is extended to all tithes withheld by quakers under the value of ten pounds.
ANOTHER pecuniary injury, cognizable in the spiritual courts, is the non-payment of other ecclefiaftical dues to the clergy; as pensions, mortuaries, compositions, offerings, and whatsoever falls under the denomination of surplice-fees, for marriages or other ministerial offices of the church : all which injuries are redressed by a decree for their actual pay.
h 2 Inft. 250.