Blackstone’s Commentaries with Notes of Reference (1803)

St. George Tucker

VOLUME 4, CHAPTER 5
Of Courts Ecclesiastical, Military, and Maritime

BESIDES the several courts, which were treated of in the preceding chapter, and in which all injuries are redressed, that fall under the cognizance of the common law of England, or that spirit of equity which ought to be its constant attendant, there still remain some other courts of a jurisdiction equally public and general: which take cognizance of other species of injuries, of an ecclesiastical, military, and maritime nature; and therefore are properly distinguished by the title of ecclesiastical courts, courts military, and courts maritime.

I. BEFORE I descend to consider particular ecclesiastical courts, I must first of all in general premise, that in the time of our Saxon ancestors there was no sort of distinction between the lay and the ecclesiastical jurisdiction: the county court was as much a spiritual as a temporal tribunal: the rights of the church were ascertained and asserted at the same time and by the same judges as the rights of the laity. For this purpose the bishop of the diocese, and the alderman, or in his absence the sheriff of the county, used to sit together in the county court, and had there the cognizance of all causes as well ecclesiastical as civil: a superior deference being paid to the bishop’s opinion in spiritual matters, and to that of the law judges in temporal.1 This union of power was very advantageous to them both: the presence of the bishop added weight and reverence to the sheriff’s proceedings; and the authority of the sheriff was equally useful to the bishop, by enforcing obedience to his decrees in such refractory offenders, as would otherwise have despised the thunder of mere ecclesiastical censures.

BUT so moderate and rational a plan was wholly inconsistent with those views of ambition, that were then forming by the court of Rome. It soon became an established maxim in the papal system of policy, that all ecclesiastical persons and all ecclesiastical causes should be solely and entirely subject to ecclesiastical jurisdiction only: which jurisdiction was supposed to be lodged in the first place and immediately in the pope, by divine indefeasible right and investiture from Christ himself; and derived from the pope to all inferior tribunals. Hence the canon law lays it down as a rule, that “sacerdotes a regibus honorandi sunt, non judicandi“;2 and places an emphatic reliance on a fabulous tale which it tells of the emperor Constantine; that when some petitions were brought to him, imploring the aid of his authority against certain of his bishops, accused of oppression and injustice, he caused (says the holy canon) the petitions to be burned in their presence, dismissing them with this valediction; “ite, et inter vos causas vestras discutite, quia dignum non est ut non judicemus Deos.”3

IT was not however till after the Norman conquest, that this doctrine was received in England; when William I, (whose title was warmly espoused by the monasteries which he liberally endowed, and by the foreign clergy, whom he brought over in shoals from France and Italy and planted in the best preferments of the English church,) was at length prevailed upon to establish this fatal encroachment, and separate the ecclesiastical court from the civil: whether actuated by principles of bigotry, or by those of a more refined policy, in order to discountenance the laws of king Edward abounding with the spirit of Saxon liberty, is not altogether certain. But the latter, if not the cause, was undoubted the consequence, of this separation: for the Saxon laws were soon overborne by the Norman justiciaries, when the county court fell into disregard by the bishop’s withdrawing his presence, in obedience to the charter of the conqueror;4 which prohibited any spiritual cause from being tried in the secular courts, and commanded the suitors to appear before the bishop only, whose decisions were directed to conform to the canon law.5

KING Henry the first, at his accession, among other restorations of the laws of king Edward the confessor, revived this of the union of the civil and ecclesiastical courts.6 Which was, according to Sir Edward Coke,7 after the great heat of the conquest was past, only a restitution of the ancient law of England. This however was ill relished by the popish clergy, who, under the guidance of that arrogant prelate archbishop Anselm, very early disapproved of a measure that put them on a level with the profane laity, and subjected spiritual men and causes to the inspection of the secular magistrates; and therefore in their synod at Westminster, 3 Hen. I. they ordained that no bishop should attend the discussion of temporal causes;8 which soon dissolved this newly effected union. And when, upon the death of king Henry the first, the usurper Stephen was brought in and supported by the clergy, we find one article of the oath which they imposed upon him was, that ecclesiastical persons and ecclesiastical causes should be subject only to the bishop’s jurisdiction.9 And as it was about this time that the contest and emulation began between the laws of England and those of Rome,10 the temporal courts adhering to the former, and the spiritual adopting the latter as their rule of proceeding, this widened the breach between them, and made a coalition afterwards impracticable; which probably would else have been effected at the general reformation of the church.

IN briefly recounting the various species of ecclesiastical courts, or, as they are often styled, courts Christian, (curiae Christianitatis) I shall begin with the lowest, and so ascend gradually to the supreme court of appeal.11

1. THE archdeacon’s court is the most inferior court in the whole ecclesiastical polity. It is held in the archdeacon’s absence before a judge appointed by himself, and called his official; and its jurisdiction is sometimes in concurrence with, sometimes in exclusion of, the bishop’s court of the diocese. From hence however by statute 24 Hen. VIII. c. 12. there lies an appeal to that of the bishop.

2. THE consistory court of every diocesan bishop is held in their several cathedrals for the trial of all ecclesiastical causes arising within their respective dioceses. The bishop’s chancellor, or his commissary, is the judge, and from his sentence there lies an appeal, by virtue of the same statute, to the archbishop of each province respectively.

3. THE court of arches is a court of appeal, belonging to the archbishop of each province; whereof the judge is called the dean of the arches; because he anciently held his court in the church of St. Mary le bow (sancta Maria de arcubus) though all the principal spiritual courts are now held at doctors’ commons. His proper jurisdiction is only over the thirteen peculiar parishes belonging to the archbishop in London; but the office of dean of the arches having been for a long time united with that of the archbishop’s principal official, he now, in right of the last mentioned office, receives and determines appeals from the sentences of all inferior ecclesiastical courts within the province. And from him there lies an appeal to the king in chancery (that is, to a court of delegates appointed under the king’s great seal) by statute 25 Hen. VIII. c. 19. as supreme head of the English church, in the place of the bishop of Rome, who formerly exercised this jurisdiction; which circumstance alone will furnish the reason why the popish clergy were so anxious to separate the spiritual court from the temporal.

4. THE court of peculiars is a branch of and annexed to the court of arches. It has a jurisdiction over all those parishes dispersed through the province of Canterbury in the midst of other dioceses, which are exempt from the ordinary’s jurisdiction, and subject to the metropolitan only. All ecclesiastical causes, arising within these peculiar or exempt jurisdictions, are, originally, cognizable by this court; from which an appeal lay formerly to the pope, but now by the statute 25 Hen. VIII. c. 19. to the king in chancery.

5. THE prerogative court is established for the trial of all testamentary causes, where the deceased has left bona notabilia within two different dioceses. In which case the probate of wills belongs, as we have formerly seen,12 to the archbishop of the province, by way of special prerogative. And all causes relating to the wills, administrations, or legacies of such persons are, originally, cognizable herein, before a judge appointed by the arch-bishop, called the judge of the prerogative court; from whom an appeal lies by statute 25 Hen. VIII. c. 19. to the king in chancery, instead of the pope as formerly.

I PASS by such ecclesiastical courts, as have 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, licenses, faculties, and other remnants of the papal extortions) but do not concern themselves with administering 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 usually filled with lords spiritual and temporal, judges of the courts at Westminster, and doctors for 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 honor of the crown, and the independence of the whole realm: and were first introduced in very turbulent times in the sixteenth year of king Stephen (A. D. 1151.) at the same period (Sir Henry Spelman observes) that the civil and canon laws were first imported into England.13 But, in a few years after, to obviate this growing practice, the constitutions made at Clarendon, 11 Hen. II. on account of the disturbances raised by arch-bishop Becket and other zealots of the holy see, expressly declare,14 that appeals in causes ecclesiastical ought to lie, from the arch-deacon to the diocesan; from the diocesan too the arch-bishop of the province; and from the arch-bishop to the king; and are not to proceed any farther without special license 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 power of the pope, who was ever vigilant to improve all opportunities of extending his jurisdiction hither, at length rivetted the custom of appealing to Rome in causes ecclesiastical so strongly, 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 ancient law of the realm.15 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.

7. A COMMISSION of review is a commission sometimes 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 heretofore exerted, is now annexed to the crown16 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 justitiae; but merely a matter a matter of favor, and which therefore is often denied.

THESE are now the principal courts of ecclesiastical jurisdiction; none of which are allowed to be courts of record: no more than was another much more formidable jurisdiction, but now deservedly annihilated viz. the court of the king’s high commission in causes ecclesiastical. This court was erected and united to the regal power17 by virtue of the statute 1 Eliz. c. 1. instead of a larger jurisdiction which had before been exercised under the popes authority. It was intended to vindicate the dignity and peace of the church, by reforming, ordering, and correcting the ecclesiastical state and persons, and all manner of errors, heresies, schisms, abuses, offenses, 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 offense itself, and frequently over offenses 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 since the attainder of Stafford duke of Buckingham under Henry VIII, and the consequent extinguishment of the office of lord high constable, it has usually with respect to civil matters been held before the earl marshal only.18 This court by statute 13 Ric. II. c. 2. has cognizance of contracts and other matters touching deeds of arms, and war, as well out of the realm as within it. And from its sentences an appeal lies immediately to the king in person.19 This court was in great reputation in the times of pure chivalry, and afterwards during our connections with the continent, by the territories which our princes held in France; but is now grown almost entirely out of use, on account of the feebleness of its jurisdiction, and want of power to enforce its judgments; as it can neither fine nor imprison, not being a court of record.20

III. THE maritime courts, or such as have power and jurisdiction to determine all maritime injuries, arising upon the seas, or in parts out of the reach of the common law, are only the court of admiralty, and its 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 Sir Henry Spelman,21 and Lambard,22 it was first of all erected by king Edward the third. Its 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, 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 statute 25 Hen. VIII. c. 19. which directs the appeal from the arch-bishop’s courts to be determined by persons named in the king’s commission, “like as in case of appeal from the admiral-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 vessels, 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 chiefly of the privy council, and not to judges delegates. And this by virtue of diverse 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 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, commissioned under the great seal of this purpose. In 1748, for the more speedy determination of appeals, the judges of the courts of Westminster-hall, though not privy counselors, 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 counselors. But this did not, I apprehend, extend to any future commissions: and such an addition became indeed wholly unnecessary in the course of the war which commenced in 1756; since, during the whole of that war, the commission of appeals was regularly attended and all its decisions conducted by a judge, whose masterly acquaintance with the law of nations was known and revered by every state in Europe.23


Blackstone’s Footnotes (Tucker’s notes not yet added)

     1.    Celeberrimo huic conventui episcopus et aldermannus intersunto; quorum alter jura divina, alter humana populum edoceto. LL. Eadgar. c. 5.
     2.    Decret. caus. 11. qu. 1. c. 41.
     3.    Ibid.
     4.    Hale. Hist. C. L. 102. Selden. in. Eadm. p. 6. l. 24. 4. Inst. 259. Wilk. LL. Angl. Sax. 292.
     5.    Nullus episcopus vel archidiaconus de legibus episcopolibus amplius in hundret placita teneant, nec causam quae ad reglmen animarum pertinet ad judicium secularium hominum adducant: sed quicunque secondum episcopales leges de quacunque causa vel culpa interpellatus fuerit, ad locum quem ad hoc episcopus elegerit et nominaverit, veniat; ibique de causa sua respondeat; et non secondum hundret, sed secundam canones et episcopales leges, rectum Deo et episcopo suo faciat.
     6.    Volo et praecipio, ut omnes de comitatu eant ad comitatus et hundreda, sicut fecerint tempore regis Edwardi. (Cort. Hen. l. in Spelm. cod. vet. Legum: 305.) And what is here obscurely hinted at, is fully explained by his code of laws extant in the red book of the exchequer, though in general but of doubtful authority. cap. 8. Generalia comitatuum placita certis locis et vicibus teneantur. Intersint autem episcopi, comites, &c; et agantur primo debita verae Christianitatis jura, secondo regis placita, postremo causae singulorum dignis satisfactionibus expleantur.
     7.    2 Inst. 70.
     8.    Ne episcopi saecularium placitorum officium suscipiant. Spelm. Cod. 301.
     9.    Ibid. 310.
   10.    See vol. I. introd. § 1.
   11.    For farther particulars see Burn’s ecclesiastical law, Wood’s institute of the common law, and Oughton’s ordo judiciorum.
   12.    Book II. ch. 32.
   13.    Cod. vet. leg. 315.
   14.    chap. 8.
   15.    4 Inst. 341.
   16.    Ibid.
   17.    4 Inst. 324.
   18.    1 Lev. 230. Show Parl. Cas. 60.
   19.    4 Inst. 125.
   20.    7 Mod. 127.
   21.    Gloss 13.
   22.    Arciden. 41.
   23.    See the sentiments of the president Montesquieu, and M. Vattel (a subject of the king of Prussia) on the answer transmitted by the English court to his Prussian majesty’s Exposition des motifs etc. A. D. 1753. (Montesquieu’s letters. 5 Mar. 1753. Vattel’s droit de gent. L. 2. c. 7. § 84.)