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tribunal must conform to their determinations, the law reposing an entire confidence in the honour and conscience of the noble persons who compose this important assembly, that they will make themselves masters of those questions upon which they undertake to decide, and in all dubious cases refer themselves to the opinions of the judges, who are summoned by writ to advise them : since upon their decision all property must finally depend.
THE COURTS OF ASSIZE AND Nısı Prius are derived out of, and act as collateral auxiliaries to, the foregoing courts. They are composed of two or more commissioners, who are twice in every year sent by the king's special commission all round the kingdom, (except London and Middlesex, where courts of nisi prius are holden in and after every term, before the chief or other judge of the several superior courts, and except the four northern counties, where the assizes are holden only once a-year,) to try by a jury of the respective counties the truth of such matters of fact as are there under dispute in the courts of Westminster Hall. The judges usually make their circuits in the respective vacations after Hilary and Trinity terms.
The judges upon their circuits sit by virtue of five several authorities. Ist, The commission of the peace. 2d, A commission of oyer and terminer. 3d, A commission of general jail delivery. 4th, A commission of assize directed to the justices and sergeants therein named, to take, together with their associates, assizes in the several counties; that is, to take the verdict of a peculiar species of jury, called an assize, and summoned for the trial of landed disputes. 5th, The last is that of nisi prius, which is a consequence of the commission of assize, being annexed to the office of those justices by statute, and it empowers them to try all questions of fact issuing out of the courts at Westminster, that are then ripe for trial by jury. These, by the course of the courts, are usually appointed to be tried at Westminster, in some Easter or Michaelmas term, by a jury returned from the county wherein the cause of action arises, but with this proviso, nisi prius ; that is, unless before the day prefixed, the judges of assize come into the county in question. This they are sure to do in the vacations preceding Easter and Michaelmas term, which saves much expense and trouble.
ECCLESIASTICAL, MILITARY, AND MARITIME COURTS.
Besides the several courts just named, 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 jurisprudence equally public and general, which
take cognizance of other species of injuries of an ecclesiastical, military, and maritime nature.
In briefly recounting the various species of ecclesiastical courts, or, as they are often styled, courts christian, we shall begin with the lowest, and ascend gradually to the supreme court of appeal.
THE ARCADEACON'S COURT is the most inferior court in the whole ecclesiastical polity. In the archdeacon's absence, it is held before a judge of his own appointment, who is called his official; and its jurisdiction is sometimes in concurrence with, sometimes in exclusion of, the bishop's court of the diocese. An appeal, however, lies from this court to that of the bishop
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 an appeal lies to the archbishop of each province respectively.
The COURT OF ARCHES is a court of appeal belonging to the archbishop of Canterbury, and the judge is called the dean of the arches ; because he anciently held his court in the church of St Mary le bow, though all the principal spiritual courts are now holden at doctor's 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, (as does also the principal official of the archbishop of York,) receives and determines appeals from the sentences of all inferior ecclesiastical courts within the province. And from him an appeal lies to the king in chancery, that is, to a court of delegates appointed under the king's great seal, as supreme head of the English church.
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 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 lies to the king in chancery.
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 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 in this court, before a judge appointed by the archbishop, called the judge of the prerogative court, from whom an appeal lies to
the king in chancery. The granting of letters of administration, in the event of a person dying intestate, and the probates of Will, has ever belonged to bishops, not only in England but in all countries wherever Christianity has been established ; nor is there any other court in which wills can be regularly proved, except in some particular boroughs where the chief magistrate may do it by prescription. Our reason for intrusting this power to bishops was, that whatever was given to pious uses might be faithfully applied ; and those wills where such charities are given, are called by the canonists privileged wills ; for by the canon law, what would annul another will, has no effect on these. In former times Ordinaries had the power of applying some part of the goods of a person dying intestate to pious uses, especially if he were a clergyman; and by the statute of Edward II., “ the profits of the lands of idiots, if there be any at the time of their deaths remaining, more than was necessary for the use of them and their families, shall be distributed for their souls, by the advice of the Ordinary.”
THE GREAT COURT OF APPEAL in all ecclesiastical causes, viz. the court of delEGATES appointed by the king's commission under his great seal, and issuing out of chancery, to represent his royal person, and hear all appeals made to him by virtue of 25 Henry VIII. This commission is frequently filled with lords spiritual and temporal, and always with judges of the courts at Westminster and doctors of the civil law. But in case the king himself be a party in any of these suits, the appeal does not then lie to him in chancery, which would be absurd, but by statute 24 Henry VIII. to all the bishops of the realm, assembled in the upper house of convocation.
A commission of review is 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. But it is not a matter of right which the subject may demand, ex debito justiciæ, but entirely a matter of favour, and which has been accordingly often denied.
These are now the principal courts of ecclesiastical jurisdiction, none of which are allowed to be courts of record.
Courts MILITARY.–The only court of this nature 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 marshall of England jointly. The statute of 13 Richard II. gave this court the 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 ; 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.
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. 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 at doctors' commons in London. It is not a court of record any more than the spiritual courts. An appeal always lies in ordinary course from the sentences of the admiralty judge to the king in chancery. But it is expressly declared by statute, that upon appeal made to the chancery, the sentence definitive of the delegates appointed by the commission shall be final.
Appeals from the courts of vice-admiralty 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. The original court, to which this court 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 for this purpose.
To the crown of Great Britain belongs the dominion of all the narrow seas which surround the island, by ancient and immemorial right, and of which it has kept possession in all past times. Mr Selden makes it appear, that before the invasion of Julius Cæsar, the aboriginal inhabitants possessed this right, and after their subjugation, the Romans held it by the right of conquest. On the expulsion of the Romans, the Saxon conquerors claimed, and held the sovereignty of the surrounding narrow seas ; and king Edgar, among his royal titles, styled himself “ sovereign of the narrow seas.” The claim of sovereignty was continued by the Norman conqueror ; and under that more rigorous dynasty, the Swedes, Danes, Hanse Towns, Dutch, Zealanders, &c., were compelled to ask permission and to take licenses for fishing in the British seas; and as a token of the British sovereignty, were obliged to lower their top-sails when passing a British ship of war, in conformity with an ordinance made by king John at Hastings in Sussex.
COURTS OF SPECIAL JURISDICTION.
In the two preceding sections, we have considered the several courts whose jurisdiction is public and general; and are so contrived that some or other of them may administer redress to every possible injury that can arise in the kingdom at large. There yet remains certain others, confined to particular spots, or instituted only for the redress of particular injuries, and whose jurisdiction is private and special.
These are, I. THE FOREST COURTs, instituted for the government of the king's forests in different parts of the kingdom, and for the punishment of all injuries done to the king's deer or venison, to the vert or greensward, and to the covert in which such deer are lodged. These are the courts of attachments, of regard, of swein mote, and of justice-seat. But since the era of the Revolution in 1688, the forest laws have fallen into total disuse, to the great advantage of the subject.
II. A second species of private courts, is that of commissioners of sewers. This is a temporary tribunal, erected by virtue of a commission under the great seal; which formerly used to be granted pro re nata, at the pleasure of the crown : but now at the discretion and nomination of the lord chancellor, lord treasurer, and chief justices, pursuant to the statute 23 Henry VIII. Their jurisdiction is to overlook the repairs of sea banks and sea walls ; and the cleansing of rivers, public streams, ditches, and other conduits, whereby any waters are carried off ; and is confined to such county or particular district, as the commission shall expressly name. The commissioners are a court of record, and may fine and imprison for contempts ; and in the execution of their duty, may proceed by jury or upon their own view, and may take order for the removal of any annoyances, or for the safeguard or conservation of the sewers within their commission, either according to the laws and customs of Romney-marsh or otherwise at their own discretion. They may also assess such rates, or scots, upon the owners of lands within their district, as they shall judge necessary : and if any person refuses to pay them, the commissioners may levy the same by distress of his goods and chattels ; or they may, by statute 23 Henry VIII., sell his freehold lands in order to pay such scots or assessments. But their conduct is under the control of the court of king's bench, which will prevent or punish any illegal or tyrannical proceedings.
III. The court of policies of assurance, when subsisting, is erected in pursuance of the statute 43 Elizabeth, which enables the lord chancellor to grant yearly a standing commission to the judge of the admiralty, the recorder of London, two doctors of the civil law, two common lawyers, and eight merchants ; any three of which, one being a civilian or a barrister,