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a judge of the king's bench or common pleas, or the king's sworn serjeant (q). They make their circuits in the vacations after Hilary and Trinity Terms.

The judges upon their circuits now sit by virtue of the following authorities:-The commission of the peace; a commission of oyer and terminer; a commission of general gaol delivery; a commission of assize, directed to the justices and serjeants 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, of which hereafter; and that of nisi prius, which is a consequence of the commission of assize, being annexed to the office of those justices by the statute of West. 2, 13 Edw. 1, c. 30, empowering them to try all questions of fact issuing out of the courts at Westminster, which are then ripe for trial by jury (r). These, by the course of the courts, are usually appointed to be tried at

(q) By 11 Geo. 4, and 1 Wm. 4, c. 70, s. 9, upon all trials for felonies or misdemeanors upon any record of the court of king's bench, judgment may be pronounced during the sittings or assizes by the judge, before whom the verdict is taken, as well upon the person suffering judgment by default or confession upon the same record, as upon those tried and convicted, whether such persons be present, or not in court, excepting where the prosecution shall be by information filed by leave of the king's bench, or such cases of informations filed by the attorney general, wherein he shall pray that the judgment may be postponed; and the judgment so pronounced shall be indorsed upon the record of nisi prius, and afterwards entered upon the record in court, and shall be of the same force and effect as a judgment of the court, unless a rule for a new trial or amending judgment be granted within six days after the commencement of the ensuing term. And the judge, before whom the trial shall be had, may issue an immediate order or warrant for committing the defendant in execution, or respite the execution of the judgment, upon such terms as he shall think fit, until the sixth day of the ensuing term. And in case imprisonment be part of the sentence, may order the imprisonment to commence on the day in which the party shall be actually taken to, and confined in prison.

(r) This is a most wise constitution, it prevents factions and parties in the carriage of business, which would soon appear in every cause of moment, were the trial only before men residing in the counties, as justices of the peace, or the like, or before men of little, or no place, countenance or pre-eminence above others. It keeps both the rule and the administration of the laws of the kingdom uniform. For those men are employed as justices, who as they have had a common education in the study of the law, so they daily, in term time, converse and consult with one another, and acquaint one another with their judgments, which, by these means, carry a consonancy, congruity, and uniformity one to another; whereby both the laws and the administrations thereof are preserved from that confusion and disparity that would unavoidably ensue if the administration was by several incommunicating hands, or by provincial establishments; Hale Hist. C. L. 340.

This

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, unless before the day prefixed
the judges of assize come into the county in question.
they are sure to do in the vacations preceding each Easter and
Michaelmas Term. These commissions are accompanied by
writs of association, pursuant to the statutes before mentioned,
whereby certain persons (usually the clerk of assize, and his
subordinate officers), are directed to associate themselves with
the justices and serjeants; and they are required to admit the
said persons into their society, in order to take the assizes, that
a sufficient supply of commissioners may never be wanting.
But to prevent the delay of justice by the absence of any of
them, there is also issued, of course, a writ of si non omnes,
directing that if all cannot be present, any two of them (a
justice and serjeant being one), may proceed to execute the

commission.

CHAPTER V.

OF COURTS ECCLESIASTICAL, MILITARY, AND MARITIME.

In the time of our Saxon ancestors there was no distinction Ecclesiastical between the lay and the ecclesiastical jurisdiction. The courts. county court was as much a spiritual as a temporal tribunal;

the rights of the church were ascertained at the same time and by the same judges, as the rights of the laity.

c. 5.

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; but it soon became an established L.L. Edgar, maxim in the papal system of policy, that all ecclesiastical persons and causes should be subject to ecclesiastical jurisdiction only, which jurisdiction was supposed to be lodged in the pope, and derived from him to all inferior tribunals. It was not, however, till after the Norman conquest, that this doctrine was received in England, when William 1 was prevailed on to separate the ecclesiastical court from the civil (a); whether

(a) The separation of the ecclesiastical from the temporal jurisdiction was effected by

Hale Hist.

C. L. 102,103.

Selden in

eadem. p. 6. 1.

24.

4 Inst. 259.

Wilk. L. L.
Ang. Sax. 292.

actuated by principles of bigotry, or intending to discountenance the laws of king Edward, abounding with the spirit of Saxon liberty, is not certain. But the latter, if not the cause, was the consequence of this separation; for the Saxon laws were soon overborne by the Norman justiciaries, when, in obedience to the charter of the conqueror, the bishop withdrew from the county court, and all spiritual causes were prohibited from being tried in the secular courts (b).

The principal courts of ecclesiastical jurisdiction is as follows, beginning with the lowest (c):

an ordinance of William the Conqueror, which is set out in Spelm. v. 2, p. 14; 2 Burn's E. L. 33; Rogers's E. L. 269.

(b) The ecclesiastical laws of this country have been for the most part derived from the authority exercised by the Roman pontiffs in the different states and kingdoms of Europe. In addition to these authorities of foreign origin, must be enumerated also the constitutions passed in this country by the pope's legates, and the archbishops and bishops of England, assembled in national councils in 1237 and 1269; and a further body of constitutions, framed in provincial synods, under the authority of successive archbishops of Canterbury, and adopted by the province of York. To these must be added also the canons of the English protestant church, passed in convocation in 1603, and such acts of parliament as make particular subjects matters of ecclesiastical cognizance, or regulate the course of proceedings with respect to the same.

(c) The ordinary ecclesiastical courts are: the provincial courts, being in the province of Canterbury, the court of arches, or supreme court of appeal, the prerogative or testamentary court, and the court of peculiars; and in the province of York, the prerogative or testamentary court, and the chancery court; the diocesan courts, being the consistorial court of each diocese exercising general jurisdiction; the court or courts of one or more commissaries appointed by the bishop in certain dioceses to exercise general jurisdiction within prescribed limits; and the court or courts of one or more archdeacons, or their officials, exercising general or limited jurisdiction, according to the terms of their patents, or to local custom. There are also peculiars of various descriptions in most dioceses, and in some they are very numerous; royal, archiepiscopal, episcopal, decanal, sub-decanal, prebendal, rectorial, and vicarial; and there are also some manorial courts. The provincial courts of the archbishop of Canterbury and the archbishop of York are independent of each other; the process of one province not running into the other, but being sent by a requisition to the local authority for execution. The appeal from each of the provincial courts lies to the king, but is heard, and disposed of by the judicial committee of the privy council, under the authority of 2 & 3 Wm. 4, c. 92, s. 3, and 3 & 4 Wm. 4, c. 41, s. 3. Of the three principal archiepiscopal courts of Canterbury, the arches court is the first. This court exercises the appellate jurisdiction from each of the diocesan, and most of the peculiar courts within the province. It may also take original cognizance of causes by letters of request from each of those courts, and it has original jurisdiction on subtraction of legacy given by wills proved in the prerogative court of Canterbury. The prerogative court has jurisdiction of all wills and administrations of personal property left by persons having bona notabilia, or effects of a certain value in divers jurisdictions within the province. The court of peculiars, which is the

court.

The archdeacon's court is held in the archdeacon's absence Archdeacon's 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, by 24 Hen. 8, c. 12, an appeal lies to that of the bishop.

court.

The consistory court of every diocesan bishop is held in The consistory 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, by virtue of the same statute, to the archbishop of each province respectively.

third archiepiscopal court of Canterbury, takes cognizance of all matters arising in certain deaneries, which are exempt from, and independent of, the several bishops within whose dioceses they are locally situate. The province of Canterbury includes twenty-two dioceses; and therein the diocese of Canterbury itself, where the ordinary episcopal jurisdiction is exercised by a commissary, in the same manner as in other dioceses. The province of York includes four dioceses, besides that of Sodor and Man; and the archiepiscopal jurisdiction is exercised therein much in the same manner as in the province of Canterbury. The diocesan courts take cognizance of all matters arising locally within their respective limits, with the exception of places subject to peculiar jurisdiction. The archdeacon's court is generally subordinate, with an appeal to the bishop's court, though in some instances it is independent and co-ordinate. The archdeacon's courts, and the various peculiars, in some instances take cognizance of all ecclesiastical matters arising within their own limits, though the jurisdiction of many of the peculiar courts extends only to a single parish; the authority of some of them is limited to a part only of the matters usually the subject of ecclesiastical cognizance; several of the peculiars possess voluntary, but not contentious, jurisdiction. See the report of the commissioners appointed to inquire into the practice and jurisdiction of the ecclesiastical courts in England and Wales, who recommend the union of the arches and prerogative court of Canterbury; and that the whole jurisdiction of the peculiars, both contentious and voluntary, should be abolished, and that every place should be subjected wholly to the bishop of the diocese within which it is locally situate. They also recommend the abolition of testamentary jurisdiction in manorial courts, and the transference to the provincial courts of the jurisdiction of the diocesan and archidiaconal courts and the transference of the whole testamentary jurisdiction, and the exclusive right of granting probates and administrations to the archiepiscopal courts of the respective provinces.

See the act 6 & 7 Wm. 4, c. 77 (ante, p. 68), "for carrying into effect the reports of the commissioners appointed to consider the state of the established church in England and Wales, with reference to ecclesiastical duties and revenues, so far as they relate to episcopal dioceses, revenues, and patronage." Pursuant to the recommendations contained in the reports of the said commissioners, and under the powers of the said act, 6 & 7 Wm. 4, c. 77, twenty-three orders in council have issued, carrying into effect some of the new territorial arrangements of dioceses; augmentations of the poorer, by contributions from the richer sees; and some of the other propositions in the commissioners' reports.

The court of arches.

The court of peculiars.

The prerogative court.

The court of arches is a court of appeal belonging to the archbishop of Canterbury. 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 for a long time been united with that of the archbishop's principal official, he now, in right of the last-mentioned office (as does also the official principal of the archbishop of York), receives and determines appeals from the sentences of all inferior ecclesiastical courts within the vince; and from him an appeal lay to the court of delegates (d), but now to the king.

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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 lay formerly to the pope, but now, by 25 Hen. 8, c. 19, to the king (e).

The prerogative court is established for the trial of all testamentary causes, where the deceased has left bona notabilia (f) within two different dioceses, when the probate of wills belongs, by special prerogative, to the archbishop of the province. And all causes relating to the wills, administrations, or legacies of such persons are originally cognizable herein, before a judge appointed by the archbishop, called the judge of the prerogative court, from whom an appeal lies by 25 Hen. 8, c. 19, to the king, instead of the pope, as formerly (g).

(d) By 2 & 3 Wm. 4, c. 92, s. 3, the powers of the high court of delegates, both in ecclesiastical and maritime causes, were transferred to the queen in council, and the court of delegates abolished. And by 3 & 4 Wm. 4, c. 41, s. 3, all appeals brought before the queen in council are to be referred to the judicial committee of the privy

council.

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(e) See now 3 & 4 Wm. 4, c. 41, s. 3, in the last note.

(f) Goods to the value of 100s.

(g) See now 3 & 4 Wm. 4, c. 41, s. 3, ante note (d) to this chapter.

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