Geo. III, c. 70, to give assistance to such of them as are courts of record, by issuing writs of execution, where the person or effects of the defendant are not within the inferior jurisdiction: and that the proceedings in these special courts ought to be according to the course of the common law, unless otherwise ordered by parliament; for though the king may erect new courts, yet he cannot alter the established course of law.

But there is one species of courts, constituted by act of parliament, in the city of London, and other trading and populous districts, which in their proceedings so vary from the course of the common law, that they may deserve a more particular consideration. I mean the courts of requests, or courts of conscience, for the recovery of small debts. The first of these was established in London, so early as the reign of Henry the Eighth, by an act of their common council; which however was certainly insufficient for that purpose and illegal, till confirmed by statute 3 Jac. I, c. 15, which has since been explained and amended by statute 14 Geo. II, c. 10. The constitution is this: two aldermen, and four commoners, sit twice a week to hear all causes of debt not exceeding the *value of forty shillings; which they examine in a summary way, by the oath of the parties or other witnesses, and make such order therein [82] as is consonant to equity and good conscience. The time and expense of obtaining this summary redress are very inconsiderable, which make it a great benefit to trade; and thereupon divers trading towns and other districts have obtained acts of parliament, for establishing in them courts of conscience upon nearly the same plan as that in the city of London.

The anxious desire that has been shown to obtain these several acts, proves clearly that the nation in general is truly sensible of the great inconvenience arising from the disuse of the ancient county and hundred courts; wherein causes of this small value were always formerly decided, with very little trouble and expense to the parties. But it is to be feared that the general remedy which of late hath been principally applied to this inconvenience (the erecting these new jurisdictions) may itself be attended in time with very ill consequences: as the method of proceeding therein is entirely in derogation of the common law; as their large discretionary powers create a petty tyranny in a set of standing commissioners; and as the disuse of the trial by jury may tend to estrange the minds of the people from that valuable prerogative of Englishmen, which has already been more than sufficiently excluded in many instances. How much rather is it to be wished that the proceedings in the county and hundred courts could again be revived, without burdening the freeholders with too frequent and tedious attendances; and at the same time removing the delays that have insensibly crept into their proceedings, and the power that either party has of transferring at pleasure their suits to the courts at Westminster! And we may with satisfaction observe, that this experiment has been actually tried, and has succeeded, in the populous county of Middlesex; which might serve as an example for others. For by statute 23 Geo. II, c. 33, it is enacted, 1. That a special county court should be held at least once a month in every hundred of the county of *Middlesex, by

the county clerk. 2. That twelve freeholders of that hundred, qualified [*83] to serve on juries, and struck by the sheriff, shall be summoned to appear at such court by rotation; so as none shall be summoned oftener than once a year. 3. That in all causes not exceeding the value of forty shillings, the county clerk and twelve suitors shall proceed in a summary way, examining the parties and witnesses on oath, without the formal process anciently used: and shall make such order therein as they shall judge agreeable to conscience. 4. That no plaints shall be removed out of this court, by any process whatsover; but the determination herein shall be final. 5. That if any action be brought in any of the superior courts against a person resident in Middlesex, for a debt or contract, upon the trial whereof the jury shall find less than 40s. damages, the plaintiff shall recover no costs, but shall pay the defendant double costs; unless

upon some special circumstances, to be certified by the judge who tried it. 6. Lastly, a table of very moderate fees is prescribed and set down in the act; which are not to be exceeded upon any account whatsoever. This is a plan entirely agreeable to the constitution and genius of the nation, and at the same time to give honest creditors an opportunity of recovering small sums; which now they are frequently deterred from by the expense of a suit at law: a plan which, one would think, wants only to be generally known in order to its universal reception.

X. There is yet another species of private courts, which I must not pass over in silence, viz.: the chancellors' courts in the two universities of England. Which two learned bodies enjoy the sole jurisdiction, in exclusion of the king's courts, over all civil actions and suits whatsoever, when a scholar or privileged person is one of the parties; excepting in such cases where the right of freehold is concerned. And these, by the university charter, they are at liberty to try and determine, either according to the common law of the land, or according to their own local customs, at their discretion; which has generally led [*84] them to carry on their process in a *course much conformed to the civil law, for reasons sufficiently explained in a former book. (1) These privileges were granted, that students might not be distracted from their studies by legal process from the distant courts, and other forensic avocations. And privileges of this kind are of a very high antiquity, being generally enjoyed by all foreign universities as well as our own, in consequence (I apprehend) of a constitution of the emperor Frederick, A. D. 1158. (m) But as to England in particular, the oldest charter that I have seen, containing this grant to the university of Oxford, was 28 Hen. III. A. D. 1244. And the same privileges were confirmed and enlarged by almost every succeeding prince, down to King Henry the Eighth; in the fourteenth year of whose reign, the largest and most extensive charter of all was granted. One similar to which was afterwards granted to Cambridge, in the third year of Queen Elizabeth. But yet, notwithstanding these charters, the privileges granted therein, of proceeding in a course different from the law of the land, were of so high a nature that they were held to be invalid; for though the king might erect new courts, yet he could not alter the course of law by his letters patent. Therefore, in the reign of Queen Elizabeth, an act of parliament was obtained, (n) confirming all the charters of the two universities, and those of 14 Hen. VIII and 3 Eliz. by name. Which blessed act, as Sir Edward Coke entitles it, (o) established this high privilege without any doubt or opposition: (p) or, as Sir Matthew Hale, (2) very fully expresses the sense of the common law and the operation of the act of parliament, "although King Henry the Eighth, 14 A. R. sui, granted to the university a liberal charter, to proceed according to the use of the university, viz.: by a course much conformed to the civil law, yet that charter had not been sufficient to have warranted such proceedings without the help of an act of parliament. And, therefore, in 3 Eliz. *an [*85] act passed, whereby that charter was in effect enacted; and it is thereby that at this day they have a kind of civil law procedure, even in matters that are of themselves of common law cognizance, where either of the parties is privileged."

This privilege, so far as it relates to civil causes, is exercised at Oxford in the chancellor's court; the judge of which is the vice-chancellor, his deputy or assessor. From his sentence an appeal lies to delegates appointed by the congregation; from thence to other delegates of the house of convocation; and if they all three concur in the same sentence it is final, at least by the statutes of the university, (r) according to the rule of the civil law. (s) But, if there be any discordance or variation in any of the three sentences, an appeal lies in

(1) Book I, introd. § 1.

(n) 13 Eliz. C. 29,

(q) Hist. C. L. 83.

(m) Cod. 4 tit. 13.

(0) 4 Inst. 227.
(r) Tit. 21, § 19.

(p) Jenk. Cent. 2 pl. 89. Cent. 3 pl. 33. Hard. 504. Godbolt. 201. (s) Cod. 7, 70, 1.

the last resort to judges delegates appointed by the crown under the great seal in chancery. (5)

I have now gone through the several species of private, or special courts, of the greatest note in the kingdom, instituted for the local redress of private wrongs; and must in the close of all, make one general observation from Sir Edward Coke: (t) that these particular jurisdictions, derogating from the general jurisdiction of the courts of common law, are ever strictly restrained, and cannot be extended farther than the express letter of their privileges will most explicitly warrant.

CHAPTER VII.

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. What in the military. 3. What in the maritime. And, 4. What in the courts of common law.

2.

And, with regard to the three first of these particulars, I must beg leave not so much to consider what hath 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 eccentrical 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 [*87] of their own, (a) 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 kinds of suits to be of ecclesiastical cognizance, which other nations have referred entirely to the temporal courts; as concerning wills and successions to intestate's 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 (t) 2 Inst. 548. (a) See Book L, introd. § 1.

(5) See as to the privilege of the University of Oxford, Matter of the Chancellor, &c., 1 Q B., 952.

jurisdiction of our 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. (¿)

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 animæ, as is the case with immoralities in general when unconnected with private injurier), but for the sake of the party injured, to make him a satisfaction and redress for *the damage which he has sus[*88] tained. 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 institute a suit in the spiritual court. (1)

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. (e) But herein a distinction must be taken: for the ecclesiastical courts have no jurisdiction to try the right of tithes unless between spiritual persons; (d) but in ordinary cases, between spiritual men and lay men, are only to compel the payment of them, when the right is not disputed. (e) By the statute or rather writ (f) of circumspecte agatis (g) 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 are 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 statute 2 and 3 Edw. VI, c. 13, it is enacted that if any person shall carry off his predial tithes (viz.: of corn, hay, or the like), before the tenth [*89] 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 lay 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. (h) However it

(Hal. Hist. C. L. c. 2.

(c) Stat. 32 Hen. VIII, c. 7.
(d) 2 Roll. Abr. 309, 310. Bro. Abr. t. jurisdiction, 85.
(f) See Barrington, 123. 8 Pryn. Rec. 330.
(h) 2 Inst. 250.

(e) 2 Inst. 364, 489, 490.
(g) 13 Edw. I, st. 4, or rather 9 Edw. II.

(1) This jurisdiction became unimportant under the operation of statute 6 and 7 Wm. IV, c. 71, and subsequent statutes for the commutation of tithes. And the statute 31 and 82 Vic., c. 109, takes away wholly the jurisdiction of the ecclesiastical courts to compel the payment of church rates.

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 408., is given by statute 7 and 8 Wm. III, c. 6, by complaint to two justices of the peace; and, by another statute of the same year, c. 34, 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 surplicefees, 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 40s. may [*90] be recovered in a summary way before two justices of the peace. (1) 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; (k) 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; () 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 by the common law. (m) 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; (n) but, if he be not licensed, or hath no such salary appointed, or hath made a special agreement with the rector, he must sue for a satisfaction at common law; (0) 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.

Spoliation is an injury done by one clerk or incumbent to another, in taking the fruits of his benefice without any right thereunto, but under a pre- [*91] tended title. It is remedied by a decree to account for the profits so taken. This injury, when the jus patronatus or right of advowson doth 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 pretence of a vacancy, the same patron presents B to the same living, and he also obtains institution and induction. Now, if the fact of the vacancy be disputed, 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. (p) 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

Stat. 7 and 8 W. III. c. 6. Ibid., 834. Lord Raym. 450, 1558. Fitz. 55. (0) 1. Freem. 70. (p) F. N. B. 36.

(k) Salk. 832.

(m) 1 Ventr. 165.

(n) 1 Burn. eccl. law, 438,