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common law cognizance, where either of the parties is privileged."

THIS privilege, fo far as it relates to civil causes, is exercifed 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 convocation; and if they all three concur in the same sentence it is final, at least by the ftatutes of the university, according to the rule of the civil law. But, if there be any dif cordance or variation in any of the three fentences, an appeal hes 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 fpecial courts, of the greatest note in the kingdom, inftituted for the local redrefs of private wrongs; and muft, in the close of all, make one general observation from fir Edward Coke that these particular jurifdictions, 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.

¶ Tit. 21. § 19.
* Cod. 7. 70. 1.

$ 2 Inft. 548.

CHAPTER THE SEVENTH.

OF THE

THE COGNIZANCE OF PRIVATE
WRONGS.

WE

E are now to proceed to the cognizance of private wrongs; that is, to confider in which of the vast variety of courts, mentioned in the three preceding chapters, every poffible injury that can be offered to a man's perfon or property is certain of meeting with redrefs.

THE authority of the feveral courts of private and special jurifdiction, or of what wrongs fuch courts have cognizance, was neceffarily remarked as thofe refpective tribunals were enumerated; and therefore need not be here again repeated: which will confine our prefent inquiry to the cognizance of civil injuries in the feveral courts of public or general jurifdiction. And the order, in which I fhall purfue this inquiry, will be by fhewing; 1. What actions may be brought, or what injuries remedied, in the ecclefiaftical 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 fo much to confider what hath at any time been claimed or pretended to belong to their jurisdiction, by the officers and judges of thofe refpective courts; but what the common law allows and permits to be fo. For these eccentrical tribunals (which were principally guided by the rules of the imperial and canon laws) as they fubfift and are ad

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mitted in England, not by any right of their own, but upon bare fufferance and toleration from the municipal laws, muft have recourfe to the laws of that country wherein they are thus adopted, to be informed how far their jurifdiction extends, or what caufes are permitted, and what forbidden, to be difcuffed or drawn in queftion before them. It matters not therefore what the pandects of Juftinian, or the decretals of Gregory have ordained. They are here of no more intrinfic authority than the laws of Solon and Lycurgus: curious perhaps for their antiquity, refpectable for their equity, and frequently of admirable use in illustrating a point of hiftory. Nor is it at all material in what light other nations may confider this matter of jurifdiction. Every nation must and will abide by it's own municipal laws; which various accidents confpire to render different in almoft every country in Europe. We permit fome kinds of fuits to be of ecclefiaftical cognizance, which other nations have referred entirely to the temporal courts; as concerning wills and fucceffions to inteftates' chattels and perhaps we may, in our turn, prohibit them from interfering in fome controverfies, which on the continent may be looked upon as merely spiritual. In fhort, the common law of England is the one uniform rule to determine the jurifdiction 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 fome cafes punifh their judges.

HAVING premised this general caution, I proceed now to confider

I. THE wrongs or injuries cognizable by the ecclefiaftical courts. I mean fuch as are offered to private perfons or individuals; which are cognizable by the ecclefiaftical court, not for reformation of the offender himself or party injuring (pro falute animae, as is the cafe with immoralities in general, when unconnected with private injuries) but for the fake of the party injured, to make him a futisfaction and redress for

a Ste Vol. I. introd. § 1.

b Hal. Hift. C; L. c. 2.

the damage which he has fuftained. And thefe I fhall reduce under 'three general heads; of caufes pecuniary, caufes matrimonial, and causes teftamentary.

1. PECUNIARY caufes, cognizable in the ecclesiastical courts, are fuch as arife either from the withholding ecclefiaftical dues, or the doing or neglecting fome act relating to the church, whereby fome damage accrues to the plaintiff; towards obtaining a fatisfaction for which, he is permitted to institute a fuit in the spiritual court.

THE principal of these is the fubtraction or withholding of tithes from the parfon or vicar, whether the former be a clergyman or a lay appropriators. But herein a diftinction must be taken: for the ecclefiaftical courts have no jurifdiction to try the right of tithes unless between fpiritual perfons; but in ordinary cafes, between fpiritual men and lay men, are only to compel the payment of them, when the right is not difputed. By the ftatute or rather writ of circumfpecte agatis, it is declared that the court chriftian shall not be prohibited from holding plea, "fi reclor petat verfus parochia"nos oblationes et decimas debitas et confuetas:" fo that if any difpute arifes whether fuch tithes be due and accustomed, this cannot be determined in the ecclefiaftical court, but before the king's courts of the common law; as fuch question affects the temporal inheritance, and the determination muft bind the real property. But where the right does not come into queftion, but only the fact whether or no the tithes. allowed to be due are really fubtracted or withdrawn, this is a tranfient personal injury, for which the remedy may properly be had in the fpiritual court; viz. the recovery of the tithes, or their equivalent. By ftatute 2 & 3 Edw. VI. c. 13. it is enacted, that if any person fhall carry off his predial tithes (viz. of corn, hay, or the like) before the tenth part

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is duly fet forth, or agreement is made with the proprietor, or fhall willingly withdraw his tithes of the fame, or shall stop or hinder the proprietor of the tithes or his deputy from viewing or carrying them away; fuch offender fhall pay double the value of the tithes, with cofts, to be recovered before the ecclefiaftical judge, according to the king's ecclefiaftical laws. By a former claufe of the fame ftatute, the treble value of the tithes, fo fubtracted or withheld, may be fued for in the temporal courts, which is equivalent to the double value to be fued for in the ecclefiaftical. For one may fue for and recover in the ecclefiaftical courts the tithes themselves, or a recompenfe for them, by the antient law; to which the suit for the double value is fuperadded by the ftatute. But as no fuit lay in the temporal courts for the fubtraction of tithes themfelves, therefore the ftatute gave a treble forfeiture, if fued for there; in order to make the course of justice uniform, by giving the fame reparation in one court as in the other h However it now feldom happens that tithes are fued for at all in the fpiritual court; for if the defendant pleads any custom, modus, compofition, 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 fuch a right to be decided by the fentence of any fingle, much lefs an ecclefiaftical, judge; without the verdict of a jury. But a more fummary method than either of recovering fmall tithes under the value of 40 s. is given by ftatute 7 & 8 W. III. c. 6. by complaint to two juftices of the peace: and, by another ftatute of the fame year, c. 34. the fame 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 penfions, mortuaries, compofitions, offerings, and whatfoever falls under the denomination of furplice-fees, for marriages or other minifterial offices of the church: all which injuries are redreffed by a decree for their actual pay

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