Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of The Cognizance of Private Wrongs
WE are now to proceed to the cognizance of private wrongs; that is, to consider in which of the vast 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 showing; 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 has 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 eccentric tribunals (which are principally guided by the rules of the imperial and canon laws) as they subsist and are admitted in England, not by any right of their own,1 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 discussed or drawn in question before them. It matters not therefore what the pandects of Justinian, 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 its own municipal laws; which various accidents conspire to render different in almost every country in Europe. We permit some kind of suits to be of ecclesiastical cognizance, which other nations have referred entirely to the temporal courts; as concerning wills and successions to intestates’ chattels: 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 courts: and, if any tribunals whatsoever attempt to exceed the limits so prescribed them, the king’s courts of common law may and do prohibit them; and in some cases punish their judges.2
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 salute animae, as immoralities in general are, when unconnected with private injuries) but such as are there to be prosecuted for the sake of the party injured, to make him a satisfaction and redress for 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 causes, cognizable in the ecclesiastical courts, are such as arise either from the withholding ecclesiastical dues, or the doing or neglecting some act relating to the church, whereby some 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 subtraction or withholding of tithes from the parson or vicar, whether the former be a clergyman or a lay appropriator.3 But herein a distinction must be taken: for the ecclesiastical courts have no jurisdiction to try the right of tithes unless between spiritual persons;4 but in ordinary cases, between spiritual men and lay men, are only to compel the payment of them, when the right is not disputed.5 By the statute or rather writ6 of circumspecte agatis,7 it is declared that the court Christian shall not be prohibited from holding plea, “si rector petat versus parochianos oblationes et decimas debitas et consuetas: so that if any dispute arises whether such tithes be due and accustomed, this cannot be determined in the ecclesiastical 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 be 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 testaments 2 & 3 Edw. VI. c. 13. it is enacted, that if any person shall carry off his praedial tithes (viz. of corn, hay, or the like) before the tenth part is duly set forth, or agreement is made with the proprietor, or shall 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, so subtracted or withheld, may be sued for in the temporal courts, which is equivalent to the double value to be sued for in the ecclesiastical. For one may sue for and
recover in the ecclesiastical courts the tithes themselves, or a recompense for them, by the ancient law; to which the suit for the double value is superadded by the statute. But as no suit law in the temporal courts for the subtraction 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.8 However it now seldom happens that tithes are sued for at all in the spiritual court; for if the defendant pleads any custom, modus, composition, or other matter whereby the right of tithing is called in question, this takes it out of the jurisdiction of the ecclesiastical judges: for the law will not suffer the existence of such a right to be decided by the sentence of any single, much less an ecclesiastical, 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,9 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 ecclesiastical 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 payment. Besides which all offerings, oblations, and obventions, not exceeding the value of 40 s. may be recovered in a summary way, before two justices of the peace.10 But care must be taken that these are real and not imaginary dues; for, if they be contrary to the common law, a prohibition will issue out of the temporal courts to stop all suits concerning them. As where a fee was demanded by the minister of the parish for the baptism of a child, which was administered in another place;11 this, however authorized by the canon, is contrary to common right: for of common right no fee is due to the minister even for performing such branches of his duty, and it can only be supported by a special custom;12 but no custom can support the demand of a fee without performing them at all.
FOR fees also, settled and acknowledged to be due to the officers of the ecclesiastical courts, a suit will lie therein: but not if the right of the fees is at all disputable; for then it must be decided at the common law.13 It is also said, that if a curate be licensed, and his salary appointed by the bishop, and he be not paid, the curate has a remedy in the ecclesiastical court:14 but, if he be not licensed, or has no such salary appointed, or has made a special agreement with the rector, he must sue for a satisfaction at common law;15 either by proving such special agreement, or else by leaving it to a jury to give damages upon a quantum meruit, that is, in consideration of what he reasonably deserved in proportion to the service performed.
UNDER this head of pecuniary injuries may also be reduced the several matters of spoliation, dilapidations, and neglect of repairing the church and things thereunto belonging; for which a satisfaction may be sued for in the ecclesiastical court.
SPOLIATIONS in an injury done by one clerk or incumbent to another, in taking the fruits of his benefice without any right thereunto, but under a pretended title. It is remedied by a decree to account for the profits so taken. This injury, when the jus patronatus or right of advowson does not come in debate, is cognizable in the spiritual court: as if a patron first presents A to a benefice, who is instituted and inducted thereto; and then, upon pretense of a vacancy, the same patron presents B to the same living, and he also obtains institution and induction. Now if A disputes the fact of the vacancy, then that clerk who is kept out of the profits of the living, whichever it be, may sue the other in the spiritual court for spoliation, or taking the profits of his benefice. And it shall there be tried, whether the living were, or were not, vacant; upon which the validity of the second clerk’s pretensions must depend.16 But if the right of patronage comes at all into dispute, as if one patron presented A, and another patron presented B, there the ecclesiastical court has no cognizance, provided the tithes sued for amount to a fourth part of the value of the living, but may be prohibited at the instance of the patron by the king’s writ of indicavit.17 So also if a clerk, without any color of title, ejects another from his parsonage, this injury must be redressed in the temporal courts: for it depends upon no question determinable by the spiritual law, (as plurality of benefices or no plurality, vacancy or no vacancy) but is merely a civil injury.
For dilapidations, which are a kind of ecclesiastical waste, either voluntary, by pulling down; or permissive, by suffering the chancel, parsonage-house, and other buildings thereunto belonging, to decay; an action also lies, either in the spiritual court by the canon law, or in the courts of common law:18 and it may be brought by the successor against the predecessor, if living, or, if dead, then against his executors. By statute 13 Eliz. c. 10. if any spiritual person makes over or alienates his goods with intent to defeat his successors of their remedy for dilapidations, the successor shall have such remedy against the alienee, in the ecclesiastical court, as if he were the executor of is predecessor. And by statute 14 Eliz. c. 11. all money recovered for dilapidations shall within two years be employed upon the buildings, in respect whereof it was recovered, on penalty of forfeiting double the value to the crown.
AS to the neglect of reparations of the church, church-yard, and the like, the spiritual court has undoubted cognizance thereof;19 and a suit may be brought therein for non-payment of a rate made by the church-wardens for that purpose, and these are the principal pecuniary injuries, which are cognizable, or for which suits may be instituted, in the ecclesiastical courts.
2. MATRIMONIAL causes, or injuries respecting the rights of marriage, are another, and a much more undisturbed, branch of the ecclesiastical jurisdiction. Though, if we consider marriage in the light of mere civil contracts, they do not seem to be properly of spiritual cognizance.20 But the Romanists having very early converted this contract into a holy sacramental ordinance, the church of course took it under her protection, upon the division of the two jurisdictions. And, in the hands of such able politicians, it soon became an engine of great importance to the papal scheme of an universal monarchy over Christendom. The numberless canonical impediments that were invented, and occasionally dispensed with, by the holy see, not only enriched the coffers of the church, but gave it a vast ascendant over princes of all denominations; whose marriage were sanctified or reprobated, their issue legitimated or bastardized, and the succession to their thrones established or rendered precarious, according to the humor or interest of the reigning pontiff: besides a thousand nice and difficult scruples, with which the clergy of those ages puzzled the understandings and loaded the consciences of the inferior orders of the laity; and which could only be unraveled by these their spiritual guides. Yet, abstracted from this universal influence, which affords so good a reason for their conduct, one might otherwise be led to wonder, that the same authority, which enjoined the strictest celibacy to the priesthood, should think them the proper judges in causes between man and wife. These causes indeed, partly from the nature of the injuries complained of, and partly from the clerical method of treating them,21 soon became too gross for the modesty of a lay tribunal. And causes matrimonial are now so peculiarly ecclesiastical, that the temporal courts will never interfere in controversies of this kind, unless in some particular cases. As if the spiritual court do proceed to call a marriage in question after the death of either of the parties; this the courts of common law will prohibit, because it tends to bastardize and disinherit the issue; who cannot so well defend
the marriage, as the parties themselves, when both of them living, might have done.22
OF matrimonial causes, one of the first and principal is, 1. Causa jactitationis matrimonii; when one of the parties boasts or gives out that he or she is married to the other, whereby a common reputation of their matrimony may ensue. On this ground the party injured may libel the other in the spiritual court; and, unless the defendant undertakes and makes out a proof of the actual marriage, he or she is enjoined perpetual silence upon that head; which is the only remedy the ecclesiastical courts can give for this injury. 2. Another species of matrimonial causes was when a party contracted to another brought a suit in the ecclesiastical court to compel a celebration of the marriage in pursuance of such contract; but his branch of causes is now cut off entirely by the act for preventing clandestine marriages, 26 Geo II. c. 33. which enacts, that for the future no suit shall be had in any ecclesiastical court, to compel a celebration of marriage in facie ecclesiae, for or because of any contract of matrimony whatsoever. 3. The suit for restitution of conjugal rights is also another species of matrimonial causes: which is brought whenever either the husband or wife is guilty of the injury of subtraction, or lives separate from the other without any sufficient reason; in which case the ecclesiastical jurisdiction will compel them to come together again, if either party be weak enough to desire it, contrary to the inclination of the other. 4. Divorces also, of which and their several distinctions we treated at large in a former volume,23 are causes thoroughly matrimonial, and cognizable by the ecclesiastical judge. If it becomes improper, through some supervenient cause arising ex post facto, that the parties should live together any longer; as through intolerable cruelty, adultery, a perpetual disease, and the like; this unfitness or inability for the marriage state may be looked upon as an injury to the suffering party; and for this the ecclesiastical law administers the remedy of separation, or a divorce a mensa et thoro. But if the cause existed previous to the marriage, and was such a one as rendered the marriage unlawful ab initio, as consanguinity, corporal imbecility, or the like; in this case the law looks
upon the marriage to have been always null and void, being contracted in fraudem legis, and decrees not only a separation from bed and board, but a vinculo matrimonii itself. 5. The last species of matrimonial causes is a consequence drawn from one of the species of divorce, that a mensa et thoro; which is the suit for alimony, a term which signifies maintenance: which suit the wife, in case of separation, may have against her husband, if he neglects or refuses to make her an allowance suitable to their station in life. This is an injury to the wife, and the court Christian will redress it by assigning her a competent maintenance, and compelling the husband by ecclesiastical censures to pay it. But no alimony will be assigned in case of a divorce for adultery on her part; for as that amounts to a forfeiture of her dower after his death, it is also a sufficient reason why she should not be partaker of his estate when living.
3. TESTAMENTARY causes are the only remaining species, belonging to the ecclesiastical jurisdiction; which, as they are certainly of a mere temporal nature,24 may seem at first view a little oddly ranked among matters of a spiritual cognizance. And indeed (as was in some degree observed in a former volume25) they were originally cognizable in the king’s courts of common law, viz. the county courts;26 and afterwards transferred to the jurisdiction of the church by the favor of the crown, as a natural consequence of granting to the bishops the administration of intestates effects.
THIS spiritual jurisdiction of testamentary causes is a peculiar constitution of this island; for in almost all other (even in popish) countries all matters testamentary are of the jurisdiction of the civil magistrate. And that this privilege is enjoyed by the clergy in England, not as a matter of ecclesiastical right, but by the special favor and indulgence of the municipal law, and as it should seem by some public act of the great council, is freely acknowledged by Lindewode, the ablest canonist of the fifteenth century. Testamentary causes, he observes, belong to the ecclesiastical courts “de consuetudine Angliae, et super consensu regio et suorum procerum in talibus ab antiquo concesso.”27 The same was, about a century before, very openly professed in a canon of archbishop Stratford, viz. that administration of intestates goods was “ab olim” granted to the ordinary, “consensu regio et magnatum regni Angliae“.28 The constitutions of cardinal Othobon also testify, that this provision “olim a praelatis cum approbatione regis et baronum dicitur emanasse” .29And arch-bishop Parker,30 in queen Elizabeth’s time, affirms in express words, that originally in matters testamentary “non ullam habebant episcopi authoritatem, praeter eam quam a rege acceptam referebant. Jus testamenta probandi non habebant: administrationis potestatem cuique delegare non poterant.”
At what period of time the ecclesiastical jurisdiction of testaments and intestacies began in England, is not ascertained by any ancient writer; and Lindewode31 very fairly confesses, “cujus regis temporibus hoc ordinatum sit, non reperio.” We find it indeed frequently asserted in our common law books, that it is but of late years that the church has had the probate of wills.32 But this must only be understood to mean, that it had not always had this prerogative: for certainly it is of very high antiquity. Lindewode, we have seen, declares that it was “ab antiquo“; Stratford, in the reign of king Edward III, mentions it as “ab olim ordinatum“; and cardinal Othobon, in the 52 Hen. III. speaks of it as an ancient tradition. Bracton holds it for clear law in the same reign of Henry III, that matters testamentary belonged to the spiritual court.33 And, yet earlier, the disposition of intestates’ goods “per visum ecclesiae” was one of the articles confirmed to the prelates by king John’s Magna Carta.34 Matthew Paris also informs us, that king Richard I ordained in Normandy, “quod distributio rerum quae in testamento relinquuntur autoritate ecclesiae fiet.” And even this ordinance, of king Richard, was only an introduction of the same law into his ducal dominions, which before prevailed in this kingdom: for in the reign of his father Henry II Glanvil is express, that “si quis aliquid dixerit contra testamentum, placitum illud in curia Christianitatis audiri debet et terminari.”35 And the Scots book called regiam majestatem agrees verbatim with Glanvil in this point.36
It appears that the foreign clergy were pretty early ambitious of this branch of power: but their attempts to assume it on the continent were effectually curbed by the edict of the emperor Justin,37 which restrained the insinuation or probate of testaments (as formerly) to the office of the magister census: for which the emperor subjoins this reason; “absurdum etenim clericis est, immo etiam opprobriosum, si peritos se velint ostendere disceptationum esse forensium.” But afterwards by the canon law38 it was allowed, that the bishop might compel by ecclesiastical censures the performance of the bequest to pious uses. And therefore, that being considered as a cause quae secundum canones et episcopales leges ad regimen animarum pertinuit, it fell within the jurisdiction of the spiritual courts by the express words of the charter of king William I, which separated those courts from the temporal. And afterwards, when king Henry I by his coronation-charter directed, that the goods of an intestate should be divided for the good of his soul,39 this made all intestacies immediately spiritual causes, as much as a legacy to pious uses had been before. This therefore, we may probably conjecture, was the era referred to by Stratford and Othobon, when the king by the advice of the prelates, and with the consent of his barons, invested the church with this privilege. And accordingly in king Stephen’s charter it is provided, that the goods of an intestate ecclesiastic shall be distributed pro salute animae ejus, ecclesiae consilio;40 which latter words are equivalent to per visum ecclesiae in the great charter of king John before-mentioned. And the Danes and Swedes (who received the rudiments of Christianity and ecclesiastical discipline from England about the beginning of the twelfth century) have thence also adopted the spiritual cognizance of intestacies, testaments, and legacies.41
THIS jurisdiction, we have seen, is principally exercised with us in the consistory courts of every diocesan bishop, and in the prerogative court of the metropolitan, originally; and in the arches court and court of delegates by way of appeal. It is divisible into three branches; the probate of wills, the granting of administrations, and the suing for legacies. The two former of which, when no opposition is made, are granted merely ex officio et debito justitiae, and are then the object of what is called the voluntary, and not the contentious jurisdiction. But when a caveat is entered against proving the will, or granting administration, and a suit thereupon follows to determine either the validity of the testament, or who has a right to the administration; this claim and obstruction by the adverse party are an injury to the party entitled, and as such are remedied by the sentence of the spiritual court, either by establishing the will or granting the administration. Subtraction, the withholding or detaining, of legacies is also still more apparently injurious, by depriving the legatees of that right, with which the laws of the land, and the will of the deceased have invested them: and therefore, as a consequential part of testamentary jurisdiction, the spiritual court administers redress herein, by compelling the executor to pay them. But in this last case the courts of equity exercise a concurrent jurisdiction with the ecclesiastical courts, as incident to some other species of relief prayed by the complainant; as to compel the executor to account for the testator’s effects, or assent to the legacy, or the like. For, as it is beneath the dignity of the king’s courts to be merely ancillary to other inferior jurisdiction, the cause, when once brought there, receives there also its full determination.
THESE are the principal injuries, for which the party grieved either must, or may, seek his remedy in the spiritual courts. but before I entirely dismiss this head, it may not be improper to add a short word concerning the method of proceeding in these tribunals, with regard to the redress of injuries.
IT must (in the first place) be acknowledged, to the honor of the spiritual courts, that though they continue to this day to decide many questions which are properly of temporal cognizance, yet justice is in general so ably and impartially administered in those tribunals, (especially of the superior kind) and the boundaries of their power are now so well known and established, that no material inconvenience at present arises from this jurisdiction still continuing in the ancient channel. And, should an alteration be attempted, great confusion would probably arise, in overturning long established forms, and new-modeling a course of proceedings that has now prevailed for seven centuries.
THE establishment of the civil law process in all the ecclesiastical courts was indeed a masterpiece of papal discernment, as it made a coalition impracticable between them and the national tribunals, without manifest inconvenience and hazard. And this consideration had undoubtedly its weight in causing this measure to be adopted, though many other causes concurred. The time when the pandects of Justinian were discovered afresh and rescued from the dust of antiquity, the eagerness with which they were studied by the popish ecclesiastical, and the consequent dissensions between the clergy and the laity of England, have formerly42 been spoken to at large. I shall only now remark upon those collections, that their being written in the Latin tongue, and referring so much to the will of the prince and his delegated officers of justice, sufficiently recommended them to the court of Rome, exclusive of their intrinsic merit. To keep the laity in the darkest ignorance, and to monopolize the little science, which then existed, entirely among the monkish clergy, were deep-rooted principles of papal policy. And, as the bishops of Rome affected in all points to mimic the imperial grandeur, as the spiritual prerogatives were molded on the pattern of the temporal, so the canon law process was formed on the model of the civil law: the prelates embracing with the utmost ardor a method of judicial proceedings, which was carried on in a language unknown to the bulk of the people, which banished the intervention of a jury (that bulwark of Gothic liberty) and which placed an arbitrary power of decision in the breast of a single man.
THE proceedings in the ecclesiastical courts are therefore regulated according to he practice of the civil and canon laws; or rather according to a mixture of both, corrected and new-modeled by their own particular usages, and the interposition of the courts of common law. For, if the proceedings in the spiritual court be never so regularly consonant to the rules of the Roman law, yet if they be manifestly repugnant to the fundamental maxims of the municipal laws, to which upon principles of sound policy the ecclesiastical process ought in every state to conform;43 (as if they require two witnesses to prove a fact, where one will suffice at common law) in such cases a prohibition will be awarded against them.44 But, under these restrictions, their ordinary course of proceeding is; first, by citation, to call the party injuring before them. Then by libel, libellus, a little book, or by articles drawn out in a formal allegation, to set forth the complainant’s ground of complaint. To this succeeds the defendant’s answer upon oath; when, if he denies or extenuates the charge, they proceed to proofs by witnesses examined, and their depositions taken down in writing, by an officer of the court. If he defendant has any circumstances to offer in his defense, he must also propound them in what is called his defensive allegation, to which he is entitled in his turn to the plaintiff’s answer upon oath, and may from thence proceed to proofs as well as his antagonist. The canonical doctrine of purgation, whereby the parties were obliged to answer upon oath to any matter, however criminal, that might be objected against them, (though long ago overruled in the court of chancery, the genius of the English law having broken through the bondage imposed on it by its clerical chancellors, and asserted the doctrines of judicial as well as civil liberty) continued till the middle of the last century to be upheld by the spiritual courts; when the legislature was obliged to interpose, to teach them a lesson of similar moderation. By the statute of 13 Car. II. c. 12. it is enacted, that it shall not be lawful for any bishop, or ecclesiastical judge, to tender or administer to
any person whatsoever, the oath usually called the oath ex officio, or any other oath whereby he may be compelled to confess, accuse, or purge himself of any criminal matter or thing, whereby he may be liable to any censure or punishment. When all the pleadings and proofs are concluded, they are referred to the consideration, not of a jury, but of a single judge; who takes information by hearing advocates on both sides, and thereupon forms his interlocutory decree or definitive sentence at his own discretion: from which there generally lies an appeal, in the several stages mentioned in a former chapter;45 though, if the same be not appealed from in fifteen days, it is final, by the statute 25 Hen. VIII. c. 19.
BUT the point in which these jurisdictions are the most defective, is that of enforcing their sentences when pronounced; for which they have no other process, but that of excommunication: which is described46 to be twofold; the less, and the greater excommunication. The less is an ecclesiastical censure, excluding the party from the participation of the sacraments: the greater proceeds farther, and excludes him not only from these but also from the company of all Christians. But, if the judge of any spiritual court excommunicates a man for a cause of which he has not the legal cognizance, the party may have an action against him at common law, and he is also liable to be indicted at the suit of the king.47
HEAVY as the penalty of excommunication is, considered in a serious light, there are, notwithstanding, many obstinate or profligate men, who would despise the brutum fulmen of mere ecclesiastical censures, especially when pronounced by a petty surrogate in the country, for railing or contumelious words, for non-payment of fees, or costs, or for other trivial cause. The common law therefore compassionately steps in to their aid, and kindly lends a supporting hand to an otherwise tottering authority. Imitating herein the policy of our British ancestors, among whom, according to Caesar,48 whoever were interdicted by the Druids from their sacrifices, “in numero impiorum ac sceleratorum habentur: ab iis omnes decedunt, aditum eorum sermonemque defugiunt, ne quid ex contagione incommodi accipiant: neque iis petentibus jus redditur, neque honos ullus communicatur.” And so with us by the common law an excommunicated person is disabled to do any act, that is required to be done by one that is probus et legalis homo . He cannot serve upon juries, cannot be a witness in any court, and, which is the worst of all, cannot bring an action, either real or personal, to recover lands or money due to him.49 Nor is this the whole: for if, within forty days after the sentence has been published in the church, the offender does not submit and abide by the sentence of the spiritual court, the bishop may certify such contempt to the king in chancery. Upon which there issues out a writ to the sheriff of the county, called, from the bishop’s certificate, a significavit; or from its effect a writ de excommunicato capiendo: and the sheriff shall thereupon take the offender, and imprison him in the county jail, till he is reconciled to the church, and such reconciliation certified by the bishop; upon which another writ, de excommunicato deliberando, issues out of chancery to deliver and release him.50 This process seems founded on the charter of separation (so often referred to) of William the conqueror. “Si aliquis per superbiam elatus ad
justitiam episcopalem venire noluerit, vocetur semel, secundo, et tertio: quod si nec sic ad emendationem venerit, excommunicetur; et, si opus fuerit, ad hoc vindicandum fortitudo et justitia regis sive vicecomitis adhibeatur.” And in case of subtraction of tithes, a more summary and expeditious assistance is given by the statutes of 27 Hen. VIII. c. 20. and 32 Hen. VIII. c. 7. which enact, that upon complaint of any contempt or misbehavior to the ecclesiastical judge by the defendant in any suit for tithes, any privy counselor or any two justices of the peace (or in case of disobedience to a definitive sentence, any two justices of the peace) may commit the party to prison without bail or mainprize, till he enters into a recognizance with sufficient sureties to give due obedience to the process and sentence of the court. These timely aids, which the common and statute law have lent to the ecclesiastical jurisdiction, may serve to refute that groundless notion which some are too apt to entertain, that the courts of Westminster-hall are at open variance with those at doctors’ commons. It is true that they are sometimes obliged to use a parental authority, in correcting the excesses of these of these inferior courts, and keeping them within their legal bounds; but, on the other hand, they afford them a parental assistance, in repressing the insolence of contumacious delinquents, and rescuing their jurisdiction from the contempt, which for want of sufficient compulsive powers would otherwise be sure to attend it.
II. I AM next to consider the injuries cognizable in the court military, or court of chivalry. The jurisdiction of which is declared by statute 13 Ric. II. c. 2. to be this; “that it has cognizance of contracts touching deeds of arms and of war, out of the realm, and also of things which tough war within the realm, which cannot be determined or discussed by the common law; together with other usages and customs to the same matters appertaining.” So that wherever the common law can give redress, this court has no jurisdiction: which has thrown it entirely out of use as to the matter of contracts, all such being usually cognizable in the courts of Westminster-hall, if not directly, at least by fiction of law: as if a contract be made at Gibraltar, the plaintiff may suppose it made at Northampton; for the locality, or place of making it, is of no consequence with regard to the validity of the contract.
THE words, “other usages and customs,” support the claim of this court, 1. To give relief to such of the nobility and gentry as think themselves aggrieved in matters of honor; and 2. To keep up the distinction of degrees and quality. Whence it follows, that the civil jurisdiction of this court of chivalry is principally in two points; the redressing injuries of honor, and correcting encroachments in matters of coat-armor, precedency, and other distinctions of families.
AS a court of honor, it is to give satisfaction to all such as are aggrieved in that point; a point of a nature so nice and delicate, that its wrongs and injuries escape the notice of the common law, and yet are fit to be redressed somewhere. Such, for instance, as calling a man coward, or giving him the lye; for which, as they are productive of no immediate damage to his person or property, no action will lie in the courts at Westminster: and yet they are such injuries as will prompt every man of spirit to demand some honorable amends, which by the ancient law of the land was appointed to be given in the court of chivalry.51 But modern resolutions have determined, that how much soever such a jurisdiction may be expedient, yet no action for words will at present lie therein.52 And it has always been most clearly held,53 that as this court cannot meddle with any thing determinable by the common law, it therefore can give no pecuniary satisfaction or damages; inasmuch as the quantity and determination thereof is ever of common law cognizance. And therefore this court of chivalry can at most order reparation in point of honor; as, to compel the defendant mendacium sibi ipsi imponere, or to take the lie that he has given upon himself, or to make such other submission as the laws of honor may require.54 Neither can this court, as to the point of reparation in honor, hold plea of any such word, or thing, wherein they party is relievable by the courts of the common law. As if a man gives another a blow, or calls him thief or murderer; for in both these cases the common law has pointed out his proper remedy by action.
AS to the other point of its civil jurisdiction, the redressing of encroachments and usurpations in matters of heraldry and coat-armor; it is the business of this court, according to Sir Matthew Hale, to adjust the right of armorial ensigns, bearings, crests, supporters, pennons, etc; and also rights of place or precedence, where the king’s patent or act of parliament (which cannot be overruled by this court) have not already determined it.
THE proceedings in this court are by petition, in a summary way; and the trial not by a jury of twelve men, but by witnesses, or by combat.55 But as it cannot imprison, not being a court of record, and as by the resolution of the superior courts it is now confined to so narrow and restrained a jurisdiction, it has fallen into contempt and disuse. The marshaling of coat-armor, which was formerly the pride and study of all the best families in the kingdom, is now greatly disregarded; and has fallen into the hands of certain officers and attendants upon this court, called heralds, who consider it only as a matter of lucre and not of justice: whereby such falsity and confusion has crept into their records, (which ought to be the standing evidence of families, descents, and coat-armor) that, though formerly some credit has been paid to their testimony, now even their common seal will not be received as evidence in any court of justice in the kingdom.56 But their original visitation-books, compiled when progresses were solemnly and regularly made into every part of the kingdom, to inquire into the state of families, and to register such marriages and descents as were verified to them upon oath, are allowed to be good evidence of pedigrees.57 And it is much to be wished, that this practice of visitations at certain periods were revived; for the failure of inquisitions post mortem, by the abolition of military tenures, combined with the negligence of the heralds in omitting their usual progresses, has rendered the proof of a modern descent, for the recovery of an estate or succession to a title of honor, more difficult than that of an ancient. This will be indeed remedied for the future, with respect to claims of peerage, by a late standing order58 of the house of lords: directing the heralds to take exact accounts and their respective descendants; and that an exact pedigree of each peer and his family shall, on the day of his first admission, be delivered to the house by garter, the principal king at arms. But the general inconvenience, affecting
more private successions, still continues without a remedy.
III. INJURIES cognizable by the courts maritime, or admiralty courts, are the next object of our inquiries. These courts have jurisdiction and power to try and determine all maritime causes, or such injuries, which, though they are in their nature of common law cognizance, yet being committed on the high seas, out of the reach of our ordinary courts of justice, are therefore to be remedied in a peculiar court of their own. All admiralty causes must be therefore causes arising wholly upon the sea, and not within the precincts of any county.59 For the statute 13 Ric. II. c. 5. directs that the admiral and his deputy shall not meddle with any thing, but only things done upon the sea; and the statute 15 Ric. II. c. 3. declares that the court of the admiral has no manner of cognizance of any contract, or of any other thing, done within the body of any county, either by land or by water; nor of any wreck of the sea; for that must be cast on land before it becomes a wreck.60 But it is otherwise of things flotsam, jetsam, and ligan; for over them the admiral has jurisdiction, as they are in and upon the sea.61 If part of any contract, or other cause of action, does arise upon the sea, and part upon the land, the common law excludes the admiralty court from its jurisdiction; for, part belonging properly to one cognizance and part to another, the common or general law takes place of the particular.62 Therefore though pure maritime a acquisitions, which are earned and become due on the high seas, as seamen’s wages, are one proper object of the admiralty jurisdiction, even though the contract for them be made upon land;63 yet, in general if there be a contract made in England and to be executed upon the seas, as a charterparty or covenant that a ship shall fail to Jamaica, or shall be in such a latitude by such a day; or a contract made upon the sea to be performed in England, as a bond made on shipboard to pay money in London or the like; these kind of mixed
contracts belong not to the admiralty jurisdiction, but to the courts of common law.64 And indeed it has been farther held, that the admiralty court cannot hold plea of any contract under seal.65
AND also, as the courts of common law have obtained a concurrent jurisdiction with the court of chivalry with regard to foreign contracts, by supposing them made in England; so it is no uncommon thing for a plaintiff to feign that a contract, really made at sea, was made at the royal exchange, or other inland place, in order to draw the cognizance of the suit from the courts of admiralty to those of Westminster-hall.66 This the civilians exclaim against loudly, as inequitable and absurd; and Sir Thomas Ridley67 has very gravely proved it to be impossible, for the ship in which such cause of action arises to be really at the royal exchange in Cornhill. But our lawyers justify this fiction, by alleging as before, that the locality of such contracts is not at all essential to the merits of them: and that learned civilian himself seems to have forgotten how much such fictions are adopted and encouraged in the Roman law: that a son killed in battle is supposed to live for ever for the benefit of his parent;68 and that, by the fiction of postliminium and the lex cornelia, captives, when freed from bondage, were held to have never been prisoners,69 and such as died in captivity were supposed to have died in their own country.70
WHERE the admiral’s court has not original jurisdiction of the cause, though there should arise in it a question that is proper for the cognizance of that court, yet that does not alter nor take away the exclusive jurisdiction of the common law.71 And so, vice versa, if it has jurisdiction of the original, it has also jurisdiction of all consequential questions, though properly determinable at common law.72 Wherefore, among other reasons, a suit for beaconage of a beacon standing on a rock in the sea may be brought in the court of admiralty, the admiral having an original jurisdiction over beacons.73 In case of prizes also in time of war, between our own nation and another, or between two other nations, which are taken at sea, and brought into our ports, the courts of admiralty have an undisturbed and exclusive jurisdiction to determine the same according to the law of nations.74
THE proceedings of the courts of admiralty bear much resemblance to those of the civil law, but are not entirely founded thereon; and they likewise adopt and make use of other laws, as occasion requires; such as the Rhodian law, and the laws of Oleron.75 For the law of England, as has frequently been observed, does not acknowledged or pay any deference to the civil law considered as such; but merely permits its use in such cases where it judged its determinations equitable, and therefore blends it, in the present instance, with other marine laws: the whole being corrected, altered, and amended by acts of parliament and common usage; so that out of this composition a body of jurisprudence is extracted, which owes its authority only to its reception here by consent of the crown and people. The first process in these courts is frequently by arrest of the defendant’s person;76 and they also take recognizances or stipulation of certain fidejussors in the nature of bail,77 and in case of default may imprison both them and their principal.78 They may also fine and imprison for a contempt in the face of the court.79 And all this is supported by immemorial usage, grounded on the necessity of supporting a jurisdiction so extensive;80 though opposite to the usual doctrines of the common law: these being no courts of record, because in general their process in much conformed to that of the civil law.81
IV. I AM next to consider such injuries as are cognizable by the courts of the common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the cognizance of either the ecclesiastical, military, or maritime tribunals, are for that very reason within the cognizance of the common law courts of justice. For it is a settled and invariable principle in the laws of England, that every right when withheld must have a remedy, and every injury its proper redress. The definition and explication of these numerous injuries, and their respective legal remedies, will employ our attention for many subsequent chapters. But, before we conclude the present, I shall just mention two species of injuries, which will properly fall now within our immediate consideration; and which are, either when justice is delayed by an inferior court that has proper cognizance of the cause; or, when such inferior court takes upon itself to examine a cause and decide the merits without any legal authority.
1. THE first of these injuries, refusal or neglect of justice, is remedied either by writ of procedendo, or of mandamus. A writ of procedendo ad judicium, issues out of the court of chancery, where judges of any court do delay the parties; for that they will not give judgment, either on the one side or on the other, when they ought so to do. In this case a writ of procedendo shall be awarded, commanding them in the king’s name to proceed to judgment; but without specifying any particular judgment, for that (if erroneous) may be set aside in the course of appeal, or by writ of error or false judgment: and, upon farther neglect or refusal, the judges of the inferior court may be punished for their contempt, by writ of attachment returnable in the king’s bench or common pleas.82
A WRIT of mandamus is, in general, a command issuing in the king’s name from the court of king’s bench, and directed to any person, corporation, or inferior court of judicature, within the king’s dominions; requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king’s bench has previously determined, or at least supposes, to be consonant to right and justice. It is a high prerogative writ, of a most extensively remedial nature: and may be issued in some cases where the injured party has also another more tedious method of redress, as in the case of admission or restitution to an office; but it issues in all cases where the party has a right to have anything done, and has no other specific means of compelling its performance. A mandamus therefore lies to compel the admission or restoration of the party applying, to any office or franchise of a public nature whether spiritual or temporal; to academical degrees; to the use of a meeting-house; etc: it lies for the production, inspection, or delivery, of public books and papers; for the surrender of the regalia of a corporation; to oblige bodies corporate to affix their common seal; to compel the holding of a court; and for an infinite number of other purposes, which it is impossible to recite minutely. But at present we are more particularly to remark, that it issues to the judges of any inferior court, commanding them to do justice according to the powers of their office, whenever the same is delayed. For it is the peculiar business of the court of king’s bench, to superintend all other inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers, with which the crown or legislature have invested them: and this, not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice. A mandamus may therefore be had to the courts of the city of London, to enter up judgment;83 to the spiritual courts to grant an administration, to swear a church-warden, and the like. This writ is grounded on a suggestion, by the oath of the party injured, of his own right, and the denial of justice below: whereupon, in
order more fully to satisfy the court that there is a probable ground for such interposition, a rule is made (except in some general cases, where the probable ground is manifest) directing the party complained of to show cause why a writ of mandamus should not issue: and, if he shows no sufficient cause, the writ itself is issued, at first in the alternative, either to do thus, or signify some reason too the contrary; to which a return, or answer, must be made at a certain day. And, if the inferior judge, or other person to whom the writ is directed, returns or signifies an insufficient reason, then thee issues in the second place a peremptory mandamus, to do the thing absolutely; to which no other return will be admitted, but a certificate of perfect obedience and due execution of the writ. If the inferior judge or other person makes no return, or fails in his respect and obedience, he is punishable for his contempt by attachment. But, if he, at the first, returns a sufficient cause, although it should be false in fact, the court of king’s bench will not try the truth of the fact upon affidavits; but will for the present believe him, and proceed no farther on the mandamus. But then the party injured may have an action against him for his false return, and (if found to be false by the jury) shall recover damages equivalent to the injury sustained; together with a peremptory mandamus to the defendant to do his duty. Thus much for the injury of neglect or refusal of justice.
2. THE other injury, which is that of encroachment of jurisdiction, or calling one coram non judice, to answer in a court that has no legal cognizance of the cause, is also grievance, for which the common law has provided a remedy by the writ of prohibition.
A PROHIBITION is a writ issuing properly only out of the court of king’s bench, being the king’s prerogative writ; but, for the furtherance of justice, it may now also be had in some cases, out of the court of chancery,84 common pleas,85 or exchequer;86 directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court. This writ may issue either to inferior courts of common law; as, to the courts of the counties palatine or principality of Wales, if they hold plea of land or other matters not lying within their respective franchises;87 to the county courts or courts-baron, where they attempt to hold plea of any matter of the value of forty shillings:88 or it may be directed to the courts Christian, the university courts, the court of chivalry, or the court of admiralty, where they concern themselves with any matter not within their jurisdiction; as if the first should attempt to try the validity of a custom pleaded, or the latter a contract made or to be executed within this kingdom. Or if, in handling of matters clearly within their cognizance, they transgress the bounds prescribed to them by the laws of England; as where they require two witnesses to prove the payment of a legacy, a release of tithes,89 or the like; in such cases also a prohibition will be awarded. For, as the fact of signing a release, or of actual payment, is not properly a spiritual question, but only allowed to be decided in those courts, because incident or accessory to some original question clearly within their jurisdiction; it ought therefore, where the two laws differ, to be decided not according too the spiritual, but the temporal law; else the same question might be determined different ways, according to the court in
which the suit is depending: an impropriety, which no wise government can or ought to endure, and which is therefore a ground of prohibition. And, if either the judge or the party shall proceed after such prohibition, an attachment may be had against them, to punish them for the contempt, at the discretion of the court that awarded it;90 and an action will lie against them, to repair the party injured in damages.
SO long as the idea continued among the clergy, that the ecclesiastical state was wholly independent of the civil, great struggles were constantly maintained between the temporal courts and the spiritual, concerning the writ of prohibition and the proper objects of it; even from the time of the constitutions of Clarendon made in opposition to the claims of arch-bishop Becket in 10 Hen. II, to the exhibition of certain articles of complaint to the king by arch-bishop Bancroft in 3 Jac. I. on behalf of the ecclesiastical courts: from which, and from the answers to them signed by all the judges of Westminster-hall,91 much may be collected concerning the reasons of granting and methods of proceeding upon prohibitions. A short summary of the latter is as follows. The party aggrieved in the court below applies to the superior court, setting forth in a suggestion upon record the nature and cause of his complaint, in being drawn ad aliud examen, by a jurisdiction or manner of process disallowed by the laws of the kingdom: upon which, if the matter alleged appears to the court to be sufficient, the writ of prohibition immediately issues; commanding the judge not to hold, and the party not to prosecute, the plea. But sometimes the point ma be too nice and doubtful to be decided merely upon a motion: and then, for the more solemn determination of the question, the party applying for the prohibition is directed by the court to declare in prohibition; that is, to prosecute an action, by filing a declaration, against the other, upon a supposition, or fiction, that he has proceeded in the suit below, notwithstanding the writ of prohibition. And if, upon demurrer and argument, the court shall finally be of opinion, that the matter suggested is a good and sufficient ground of prohibition in point of law, then judgment with nominal damages shall be given for the party complaining, and the defendant, and also the inferior court, shall be prohibited from proceeding any farther. On the other hand, if the superior court shall think it no competent ground for restraining the inferior jurisdiction, then judgment shall be given against him who applied for the prohibition in the court above, and a writ of consultation shall be
awarded; so called, because, upon deliberation and consultation had, the judges find the prohibition to be ill founded, and therefore by this writ they return the cause to its original jurisdiction, to be there determined, in the inferior court. And, even in ordinary cases, the writ of prohibition is not absolutely final and conclusive. For, though the ground be a proper one in point of law, for granting the prohibition, yet, if the fact that gave rise to it be afterwards falsified, the cause shall be remanded to the prior jurisdiction. If, for instance, a custom be pleaded in the spiritual court; a prohibition ought to go, because that court has no authority to try it: but, if the fact of such a custom be brought to a competent trial, and be there found false, a writ of consultation will be granted. For this purpose the party prohibited may appear to the prohibition, and take a declaration, (which must always pursue the suggestion) and so plead to issue upon it; denying the contempt, and traversing the custom upon which the prohibition was grounded: and, if that issue be found for the defendant, he shall then have a writ of consultation. The writ of consultation may also be, and is frequently, granted by the court without any action brought; when, after a prohibition issued, upon more mature consideration the court are of opinion that the matter suggested is not a good and sufficient ground to stop the proceedings below. Thus careful has the law been, in compelling them from transgressing their due bounds; and in allowing them the undisturbed cognizance of such causes as by right, founded on the usage of the kingdom or act of parliament, do properly belong to their jurisdiction.
1. See Vol. I. introd. § 1.
2. Hal. Hist. C. L. c. 2.
3. Stat. 32 Hen. VIII. c. 7.
4. 2 Roll. Abr. 309, 310. Bro. Abr. t. jurisdiction. 83.
5. 2 Inst. 364. 489, 490.
6. See Barrington’s observ. 120.
7. 13 Edw. I. St. 4.
8. 2 Inst. 250. c. 34.
9. c. 34.
10. Stat. 7 & 8 W. III. c. 6.
11. Salk. 332.
12. Ibid. 334. Lord Raym. 450. 1558. Fitzg. 55.
13. 1 Ventr. 165.
14. 1 Burn. eccl. law. 438.
15. 1 Freem. 70.
16. F. N. B. 36.
17. Circumspecte agatis; 13 Edw. I. St. 4. Artic. Cleri. 9. Edw.II. c. 2. F. N. B. 45.
18. Cart. 224. 3 Lev. 268.
19. Circumspecte agatis; 13 Edw. I. St. 4. 5 Rep. 66.
20. Warb. alliance. 173.
21. Some of the impurest books, that are extant in any language, are those written by the popish clergy on the subjects of matrimony and divorces.
22. 2 Inst. 614.
23. Book I. ch. 15.
24. Warburt. alliance. 173.
25. Book II. ch. 32.
26. Hickes Disser. Epistola. pag. 8. 58.
27. Provincial. L. 3. t. 13. fol. 176.
28. Ibid. l. 3. t. 38. fol. 263.
29. cap. 23.
30. See 9 Rep. 38.
31. fol. 263.
32. Fitz. Abr. tit. testament. pl. 4. 2. Roll. Abr. 217. 9 Rep. 37. Vaugh. 207.
33. l. 5. de exceptionibus. c. 10.
34. cap. 27. edit. Oxon.
35. l. 7. c. 8.
36. l. 2. c. 38.
37. Cod. 1. 3. 41.
38. Deeretal. 3. 26. 17. Gilb. Rep. 204, 205.
39. Si quis baronum seu hominum meorum _pecuniam suam non dederit vel dare disposuerit, uxor sua, sive liberi, aut parentes et legitimi homines ejus, eam proanima ejus dividant sicut eis melius visum fuerit. (Text Roffens. c. 34. p. 51.)
40. Lord Lyttelt. Hen. II. vol. 1. 536. Hearne ad Gul. Neubr. 711.
41. Stiernhook, de jure Sueon l. 3. c. 8.
42. Vol. I. introd. § 1.
43. Warb. alliance. 179.
44. 2 Roll. Abr. 300, 302.
45. chap. 5.
46. Co. Litt. 133.
47. 2 Inst. 623.
48. de bello Gall. l. 6.
49. Litt. § 201.
50. F. N. B. 62.
51. Year book, 37 Hen. VI. 21. Selden of duels, c. 10. Hal. Hist. C. L. 37.
52. Salk. 533. 7 Mod. 125. 2 Hawk. P. C. 11.
53. Hal. Hist. C. L. 37.
54. 1 Roll. Abr. 128.
55. Co. Litt. 261.
56. 2 Roll. Abr. 686. 2 Jon. 224.
57. Comb. 63.
58. 11 May. 1767.
59. Co. Litt. 260. Hob. 79.
60. See book I. ch. 8.
61. t Rep. 106.
62. Co. Litt. 261.
63. 1 Ventr. 146.
64. Hob. 12. Hal Hist. C. L. 35.
65. Hob. 212.
66. 4 Inst. 134.
67. View of the civil law, b. 3. p. 1. § 3.
68. Inst. 1. tit. 25.
69. Ff. 49. 13. 12. § 6.
70. Ff. 49. 15. 18.
71. Comb. 462.
72. 13 Rep. 53. 2 Lev. 25. Hardr. 183.
73. 1 Siid. 158.
74. 2 Show. 232. Comb. 474.
75. Hale. Hist. C. L. 36. Co. Litt. 11.
76. Clerke prax. Cur. adm. § 13.
77. Ibid. § 11. 1 Roll. Abr. 531. Raym. 78. Lord Raym. 1286.
78. 1 Roll. Abr. 531. Godb. 193. 260.
79. 1 Ventr. 1.
80. 1 Keb. 552.
81. Bro. Abr. t. error. 177.
82. F. N. B. 153, 154. 240.
83. Raym. 214.
84. 1 P. Wms. 476.
85. Hob. 15.
86. Palmer. 523.
87. Lord Rayn. 1408.
88. Finch. L. 451.
89. Cro. Eliz. 666. Hob. 188.
90. F. N. B. 40.
91. 2 Inst. 601-618.