CHAPTER VIII. MILITARY COURTS. Judge-Advocate-General.-Deputy.-General Courts-Martial.-Courts of Honour.— Standing Courts.-Courts of Inquiry. THE military jurisdiction extends merely to offences against discipline on the part of soldiers and officers. The Judge-advocategeneral presides over the military court. He changes with the ministry, and generally has a seat in the Lower House. He is assisted by a Deputy-judge-advocate-general; their functions consist in instituting prosecutions in the name of the Queen, and presenting reports to the Queen respecting sentences of the military courts. The ordinary military courts, which try cases of mutiny and desertion, are the general courts-martial, which are empowered to pass sentence on officers and privates; at the final trial, at least thirteen members must be present, and the majority determines. In case of a capital sentence a majority of two-thirds is necessary. This court is held under authority of the Queen or of the commander-in-chief. The Queen has the right of ratification in all cases of judgment pronounced; an appeal from a court-martial is to the Queen in person. Should sentence of transportation be pronounced, the condemned can only be transported under an order from a common law judge. General courts-martial are also empowered to determine questions of honour amongst officers. The petty standing-courts of the regiments, districts, and garrisons, can only pass sentence of imprisonment for thirty days. Courts of "Inquiry" have merely the task of collecting matters of fact, and cannot examine witnesses on oath. On the ground of communications from these courts the crown availing itself of its right, in cases of grave import, may dismiss officers from the service.* * Gneist, i., 416. CHAPTER IX. ECCLESIASTICAL COURTS. (Curiæ Christianitatis.) Premunire.-Supreme Ecclesiastical Jurisdiction in the Sovereign.—Archdeacon's Court.-Consistory Court.-Court of Arches.-Prerogative Court.-Court of Discipline.-Appeal.-Judicial Committee of the Privy Council.-Prohibition.— Lay Judges.-Jurisdiction of these Courts.-Penance.-ExcommunicationThe Temporal Arm.-Admiralty Court.-Prize Court.-Appeal from these Courts. THE spiritual and temporal courts were severed by William the Conqueror, and the respective charters were ratified by Richard II. The spiritual and ecclesiastical jurisdiction during the middle ages in England, was the subject of muchdispute. It was especially mooted whether Englishmen might appeal out of the realm to Rome, which mode of appeal the parliament strongly opposed, and passed the celebrated statute "Premunire" (16 Rich. II. c. 5). It enacted that whoever should bring any plaint or suit concerning the king, his crown, his prerogative, or realm before the court of Rome, or any other court not royal, should forfeit the king's protection. It further provided that, if any clerk gave effect to any sentence of excommunication emanating from Rome, the king should withdraw from him the enjoyment of his temporalities until the matter was remedied. Premunire was also incurred by procuring a bull from Rome, thereby restricting the jurisdiction of the royal courts.* The Pope reprobated this statute as execrable, characterizing its adoption in parliament as "foedum et turpe facinus." The statute of Edward IV., however, extended the penalties of premunire to all the ecclesiastical courts in the event of * Burns, Ec. Law., ii. 37; Crabb, 320. "Lord Cardinal! the King's further pleasure is, Because all those things you have done of late By your power legatine, within this kingdom, Fall into the compass of a premunire ; That, therefore, such a writ be sued against you, To forfeit all your goods, lands, tenements, Chattels, and whatsoever; and to be Out of the King's protection. This is my charge." Shakespeare's Hen. VIII., Act 3, s. 2. their interfering in matters temporal. Endeavours were thus made, according to Coke, to insure protection against courts not affording the safeguards of the courts of common law, since they passed sentence without a jury, and examined the accused on oath. Since the Reformation the appeal to Rome having been made over to the sovereign by 24 Henry VIII. c. 12., the king became recognised as supreme judge and fountain-head of ecclesiastical jurisdiction. The spiritual courts still existing are: 1. The Archdeacon's Court. It is held before the archdeacon; or in his absence by a judge delegate, called his "official," from whom, since 24 Henry VIII. c. xii., appeal lies to the Bishop's Court; as the jurisdiction of the archdeacon originally emanated from the bishop by delegation, the above-mentioned statute of Henry VIII. infringed a leading principle of the canon law, "that no one shall appeal to himself."* It is open to the parties to apply to the Archdeacon's Court or direct to the Bishop's Court. The powers of this court have been greatly limited by the new Court of Probate. 2. The Consistory Court of every diocesan-bishop is held in the cathedral, either by the bishop's chancellor or his commissary, acting as judge. He has jurisdiction in all ecclesiastical causes arising within the diocese, but only so far as it is delegated by the bishop, who may always reserve certain cases for his special decision. The chancellor combines the functions of vicar-general and official in his own person. 3. The Court of Arches, so called because it was formerly held in the Church of St. Mary-le-Bow (Sancta Maria de arcubus). It now sits at Doctor's Commons like all the principal ecclesiastical courts. The "Dean of Arches" was originally merely a judge over thirteen London parishes, which are under the direct jurisdiction of the Archbishop of Canterbury, combining, however, with this office that of the principal "official" of the archbishop. He is also delegate judge of appeal of the province of Canterbury. His jurisdiction in testamentary matters has now been transferred to the Court of Probate. The Court of Peculiars is a branch of, and annexed to, the Court of Arches, and has jurisdiction over all those parishes dispersed * "Ne ab eisdem seipsos appellatio in- + Bowyer, 267. terponi videatur, c. 3, de appellationibus in 6to, ii. 15. through the province of Canterbury, in the midst of other dioceses which are exempted from the ordinary jurisdiction, and subject to the metropolitan only.* 4. The Prerogative Court has been abolished by the new statute creating the Court of Probate. 5. By 3 and 4 Vict. c. 85, a Court of Discipline has been established for the trial of clerks in holy orders who have committed offences against the ecclesiastical laws, or have given scandal. The bishop of the diocese where the offence has been committed, may issue a commission to five persons, of whom one shall be his VicarGeneral, or an archdeacon or rural dean within the diocese, for the purpose of making inquiry into the grounds of the charge or report. They are to carry on the inquiry in public, unless, on the special request of the party accused, they shall think fit that the same, or any part thereof, shall be private. If the Commissioners report that there is sufficient prima facie ground for instituting further proceedings, articles are drawn up and signed by an advocate of Doctors' Commons, which are to be filed, together with copies of the depositions, in the registry of the bishop of the diocese where the accused holds preferment. The accused has to reply in secret sitting before the bishop. Should he be unable to clear himself, or fail to appear, the bishop, with three assessors, to be by him nominated, one of whom must be an advocate of five years' standing, is to proceed to try the cause and determine the same, and to pronounce sentence according to the ecclesiastical law. Appeal lies from the bishop to the archbishop of his province, and from the latter to the Queen in council. As appeal to Rome drew down the penalty of premunire by 24 Hen. VIII. c. 12, secs. 2, 4, the statute, accordingly, regulated the order of appeal. 1. From the archdeacon, or his official, to the bishop, and, non per salium, to the archbishop. 2. On a matter, commenced in the first instance before the archdeacon of the Archbishop of Canterbury appeal lies to the Court of Arches, and thence to the archbishop. 3. If commenced in the first instance before the bishop, the archbishop and his court constituted a further court of appeal. 4. If the archbishop and his court were first appealed to, no further appeal could formerly have been made; 25 Hen. VIII. * Bowyer, 371. s. 4, c. 19, however, introduced the appeal to the King in Chancery, whereupon a commission under the great seal was issued to several delegates to determine the matter. If the king himself were a party, appeal would lie not to this court of delegates, but to all the bishops in the Upper House of Convocation.* The statutes 2 and 3 Will. IV. c. 92, and 3 and 4 Will. IV. C. 41, now constitute "the judicial committee of the Privy Council" as the supreme ecclesiastical court of appeal.+ The English canon law recognises the writs of prohibition of the common law courts. Writs of prohibition issue from the Queen's Bench, and occasionally from the Court of Chancery, the Common Pleas, and Exchequer. To indicate the relation of the temporal to the spiritual power, Blackstone recurs to the simile of paternal authority. "It is true they are sometimes obliged to use a parental authority in correcting the excesses of these inferior courts and keeping them within the legal bounds; but, on the other hand, they afforded them a parental assistance in repressing the insolence of contumacious delinquents, and rescuing their jurisdiction from that contempt which, for want of sufficient compulsive power, would be sure to attend it."‡ The judges of the ecclesiastical courts since a statute 37 Henry VIII. are usually laymen, who are doctors of the Roman and canon law, but derive their power, by delegation, from the ecclesiastical dignitary by whom they are appointed. The course of procedure in these courts is a mixture of the canon and Roman law process by written depositions and oral examination. The decrees are drawn up in writing.§ No jury is summoned by these courts; but an oath may, if deemed expedient, be administered to the accused and the suitor. Should a matter of common law jurisdiction come before the ecclesiastical courts incidentally, it must be treated by the ecclesiastical judge according to ordinary procedure. These courts had formerly jurisdiction in matters relating to tithes. By 6 and 7 Will. IV. they still determine matters pecuniary, arising from the withholding of ecclesiastical matters relating to tithes, &c., dilapidations, or "waste." They may also require churchwardens to carry out repairs, and can excommunicate refractory parishioners for non-payment of rates. In suits for a specified sum of money and for damages they have no jurisdic * Burns, i. 230. + Ibid. 64. Bl. iii., 103. § Burns, ii. 48. |