ufed. 1. The courts of the archbishops and bishops, and their derivative officers, ufually called in our law, courts chriftian, curia chriftianitatis, or the ecclefiaftical courts. 2. The military courts. 3. The courts of admiralty. 4. The courts of the two univerfities. In all, their reception in general, and the different degrees of that reception, are grounded entirely upon cuftom; corroborated in the latter inftance by act of parliament, ratifying those charters which confirm the customary law of the univerfities. But in these courts, these laws cannot be exercised to any greater extent than is warranted by cuftom or by ftatute, and any incroachment is prevented by thefe means: 1. The courts of common law have the fuperintendency over thefe courts; to keep them within their jurifdictions, to determine wherein they exceed them, to reftrain and prohibit fuch excefs, and (in cafe of contumacy) to punish the officer who executes, and in fome cafes, the judge who enforces the fentence fo declared illegal. 2. The common law has referved to itself the expofition of all fuch acts of parliament, as concern either the extent of these courts, or the matters depending before them. Therefore, if thefe courts either refufe to allow thefe acts of parliament, or will expound them in any other fenfe than what the common law puts upon them, the king's court at Westminster will grant prohibitions to reftrain and controul them. 3. An appeal lies from all these courts to the king, in the last resort; which proves that the jurifdiction exercifed in them is derived from the crown of England, and not from any foreign potentate, or intrinfic authority of their own.

WRITTEN LAWS. The written laws of the kingdom are ftatutes, acts, or edicts, made by the king's majesty, by and with the advice and confent of the lords fpiritual and temporal and commons in parliament assembled. The oldeft of these now extant, and printed in our ftatute books, is the famous magna charta as confirmed in parliament 9 Hen. III. : though doubtless there were many acts before that time, the records of which are now loft, and the determinations of them perhaps at prefent currently received for the maxims of the old common law.

The method of making these statutes has already been explained; they are either general or Special, public or private; the diftinction between which has already been stated, vol. i. p. 271.

Statutes alfo are either declaratory of the common law, or remedial of fome of its defects. Declaratory, where the old cuftom of the kingdom is almoft fallen into difufe, or become difputable; in which cafe, the parliament has thought proper, in perpetuum rei teftimonium, and for avoiding all doubts and

difficul

difficulties, to declare what the common law is, and ever has been. Remedial ftatutes are thofe which are made to fupply fuch defects, and abridge fuch fuperfluities in the common law, as ar fe either from the general imperfection of all human laws, from change of time and circumftances, from the mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other caufe whatfoever. And this being done either by enlarging the common law, where it was too narrow and circumfcribed, or by restraining it, where it was too lax and luxuriant, has occafioned another fubordinate divifion of remedial acts of parliament, into enlarging and restraining statutes.

An enlarging or an enabling ftatute is one which increases the power of action; thus the 32 Her. VIII. c. 28. which gave bifhops, and all other fole ecclefiaftical corporations, except parfons and vicars, a power of making leafes, which they did not poffefs before, is always called an enabling ftatute: The 13 Eliz. c. 10. which afterward limited that power, is, on the contrary, styled a reftraining or difabling ftatute.

COURTS. In order to put the laws in execution, the king is confidered as the fountain of juftice, the general confervator of the peace of this kingdom. He has alone the right of erect ing courts of judicature; their jurifdictions are, either mediately, or immediately, derived from the crown, and their proceedings are generally in the king's name; they pafs under his feal, and are executed by his officers. It is probable, and almost certain, that in very early times, before the conftitution arrived at its full perfection, the kings in perfon often heard and determined canfes; but now, by long and uniform ufage, they have delegated their whole judicial power to the judges of their feveral courts, whofe jurifdiction is fo well defined, and fo clearly eftablished, that the king can no longer refume his ancient authori ty, and cannot alter that of the judges without an act of parliament; and were he even to fit, perfonally, in the court of King's Bench, where by fiction of law, he is prefumed to be always prefent, juftice must be administered by the judges. Of thefe feveral courts, therefore, a brief defcription will be given, with a fummary account of the officers belonging to them, and the general limits of their jurifdiction.

A court is defined to be a place wherein justice is judicially administered. For the more fpeedy, univerfal, and impartial adminiftration of juftice, the law has appointed a prodigious variety of courts, fome with a more limited, others with a more extensive jurifdiction; fome conftituted to inquire only, others to hear and determine; fome to determine in the firft inftance, others upon appeal, and by way of review. One diftinction, runs throughout them all; viz. that fome are courts of record,

others

others not of record. A court of record is that where the acts and judicial proceedings are inrolled in parchment, for a perpetual memorial and testimony: which rolls are called the records of the court, aud are of fuch high and fupereminent authority, that their truth is not to be called in queftion. But if there appear any mistake of the clerk in making up fuch record, the court will direct him to amend it. All courts of record are the king's courts, in right of his crown and regal dignity, and therefore no other court has authority to fine or imprifon; fo that the very erection of a new jurifdiction with power of fine or imprisonment, makes it initantly a court of record. A court not of record, is the court of a private man; whom the law will not intruft with any difcretionary power over the fortune or liberty of his fellow fubjects. Such are the courtsbaron incident to every manor, and other inferior jurisdictions; where the proceedings are not inrolled or recorded; but as well their existence, as the truth of the matters therein contained, muft, if difputed, be tried and determined by a jury. Thefe courts can hold no plea of matters cognizable by the common law, unless under the value of forty faillings, nor of any forcible injury whatsoever, not having any process to arreft the perfon of the defendant.

ECCLESIASTICAL COURTS. In giving an account of the various courts established throughout the realm, for trial and regulation of all matters whatfoever, it is thought expedient to begin with thofe which are called ecclefiaftical, or chriftian.

THEIR ORIGIN. For the first three hundred years after Chrift, the diftinction of ecclefiaftical or fpiritual caufes, in point of jurifdiction, did not begin, at that time no fuch diftinction was heard of in the chriftian world; for the causes of testaments, matrimony, bastardy, adultery, and the reft, which are called ecclefiaftical or fpiritual caufes, were merely civil, and determined by the rules of the civil law, and fubject only to the jurifdiction of the civil magiftrate. But after the emperors were become christian, out of a zeal and defire they had to grace and honour the learned and godly bifhops of that time, they were pleafed to fingle out certain fpecial caufes, wherein they granted jurifdiction to bishops; namely, in cafes of tithes, becaufe paid to men of the church; in caufes of matrimony, becaufe, matrimony was for the most part folemnized in the church; in caufes teftamentary, because teftaments were many times made in extremis, when churchmen were prefent, giving fpiritual comfort to the testator, and therefore they were thought the fittest perfons to take the probates of fuch teftaments and fo of the reft. Yet thefe bishops did not then proceed in these caufes, according to the canons and decrees of the church, (for

the

the canon law was not then made) but according to the rules of the imperial law, and as the civil magiftrate proceeded in other caufes. Accordingly in this kingdom, in the Saxon times before the Norman conqueft, there was no diftinction of jurifdictions; but all matters, as well fpiritual, as temporal, were determined in the county-court, called the fheriff's tourn, where the bishop and earl (or in his abfence the fheriff) fat together; or elfe in the hundred-court, which was held in like manner before the lord of the hundred and the ecclefiaftical judge. In thofe days the ecclefiaftical officers took their limits of jurifdiction, from a like extent of the civil powers. Most of the old Saxon bishop ricks were of equal bounds with the distinct kingdoms: the archdeaconries, when first settled into local districts, were commonly fitted to the refpective counties; and rural deaueries, before the conqueft, were correfpondent to the political tithings. Their fpiritual courts were held, with a like reference to the adminiftration of civil juftice. The fynods of each province and diocese were held at the difcretion of the metropolitan and the bishop, as great councils at the pleasure of the prince. The visitations were firft united to the civil inquifitions in each county; and afterwards, when the courts of the earl and bishop were feparated, yet ftill the vifitations were held like the fheriff's tourns twice a year, and, like them too, after Eafter and Michaelmas; and still with nearer likeness, the greater of them was at Eaiter. The rural chapters were alfo held, like the inferior courts of the hundred, every three weeks; then, and like them too, they were changed into monthly, and at laft into quarterly meetings. Nay, and a prime invitation was held commonly, like the prime folkmote, or sheriff's tourn, on the very calends of May. The bishop and the earl fat together in one court, and heard jointly the causes of church and commonwealth, and, in all other matters, the ecclefiaftical government bore an exact affinity with the temporal.

A plan fo rational and moderate was wholly inconfiftent with thofe views of ambition, that were then forming by the court of Rome. It foon became an established maxim in the papal fyftem of policy, that all ecclefiaftical perfons, and all ecclefiaftical caufes, fhould be folely and entirely fubject to ecclefiaftical jurifdiction, which jurisdiction was fuppofed to be lodged, in the first place and immediately in the pope, by divine and indefeasible right and investiture from Chrift himself; and derived from the pope to all inferior tribunals. Hence the canon law lays it down as a rule, that Sacerdotes a regibus honorandi funt, non judicandi; and places an emphatical reliance on a fabulous tale which it tells of the emperor Constantine that when fome petitions were brought to him, imploring the aid of his

authority

authority against certain of his bishops, accused of oppreffion and injuftice, he caufed the petitions to be burnt in their prefence, difmiffing them with this valediction; go, and difcufs your own causes among yourfelves; for it would be very unfit for us to fit in judgment on the Gods.

It was not, however, till after the Norman conqueft, that this doctrine was received in England; when William I. (whofe title was warmly efpoufed by the monafteries which he liberally endowed, and by the foreign clergy, whom he brought over in fhoals from France and Italy, and planted in the best preferments of the English church) was prevailed on to establish this fatal incroachment, and feparate the ecclefiaftical court from the civil: whether he was actuated by principles of bigotry, or by thofe of a more refined policy, in order to discountenance the laws of Edward, abounding with the fpirit of Saxon liberty, is not altogether certain. But the latter, if not the caufe, was undoubtedly the confequence of this feparation; for the Saxon laws were foon overborne by the Norman jufticiaries, when the county court fell into difregard by the bishop's withdrawing his prefence, in obedience to the charter of the Conqueror, which prohibited any spiritual caufe from being tried in the fecular courts, and commanded the fuitors to appear before the bishop only, whose decisions were directed to conform to the canon law. These courts, when once established, ufurped confiderable powers, and the priesthood long, but ineffectually, contended not merely for the exercife of the civil and canon law, but for its advancement above, or rather fubftitution instead of, the common law. At prefent, however, the authority of these courts is restrained within very narrow bounds, they are not courts of record, but evidence must be given of their sentences; they can neither fine, imprifon, nor amerce; and their fole power of punishment lies in penance, which may be commuted or difpenfed with for money, and in cofts.

Their jurifdiction being derived from the crown of England, the last devolution is to the king, by way of appeal. Although the canon or civil law is allowed as the direction or rule of proceedings; yet that is not as if either of those laws had any original obligation in England, either as they are the laws of emperors, popes, or general councils, but only by virtue of their admiffion here; which is evident, for that thofe canons, or imperial constitutions which have not been received here do not bind; and alfo, for that by feveral contrary cuftoms and ufages in this realm, many of those civil and canon laws were reftrained and controlled. Although thofe laws are admitted in some cafes in the ecclefiaftical court, yet they are but leges fub graviori

lege;