the ufurper Stephen was brought in and fupported by the clergy, we find one article of the oath which they imposed upon him was, that ecclefiaftical perfons and ecclefiaftical causes should be subject only to the bishop's jurifdiction 1. And as it was about that time that the contest and emulation began between the laws of England and thofe of Rome*, the temporal courts adhering to the former, and the spiritual adopting the latter as their rule of proceeding, this widened the breach between them, and made a coalition afterwards impracticable; which probably would elfe have been effected at the general reformation of the church.

In briefly recounting the various fpecies of ecclefiaftical courts, or, as they are often stiled, courts chriftian, (curiae chriftianitatis) I fhall begin with the lowest, and so afcend gradually to the fupreme court of appeal'.

I. THE archdeacon's court is the most inferior court in the whole ecclefiaftical polity. It is held in the archdeacon's abfence before a judge appointed by himself, and called his official and it's jurifdiction is fometimes in concurrence with, fometimes in exclufion of, the bishop's court of the diocefe. From hence however by statute 24 Hen. VIII. c. 12. an appeal lies to that of the bishop.

2. THE confiftory court of every diocefan bishop is held in their feveral cathedrals, for the trial of all ecclefiaftical causes arifing within their refpective diocefes. The bishop's chancellor, or his commiffary, is the judge; and from his fentence an appeal lies, by virtue of the fame ftatute, to the archbishop of each province respectively.

3. THE Court of arches is a court of appeal belonging to the archbishop of Canterbury; whereof the judge is called [65] the dean of the arches; because he antiently held his court in

i Ibid. 310

k See Vol. I. introd. § 1.

For farther particulars fee Burn's

ecclefiaftical law, Wood's inftitute of the common law, and Oughton's orde judiciorum.

the

the church of St. Mary le bow, (fancta Maria de arcubus) though all the principal fpiritual courts are now holden at doctors' commons. His proper jurifdiction 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 doth alfo the official principal of the archbishop of York) receives and determines appeals from the fentences of all inferior ecclefiaftical 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 feal) by statute 25 Hen. VIII. c. 19. as fupreme head of the English church, in the place of the bishop of Rome, who formerly exercised this jurifdiction; which circumstance alone will furnish the reason why the popish clergy were fo anxious to separate the fpiritual court from the temporal.

4. THE Court of peculiars is a branch of and annexed to the court of arches. It has a jurifdiction over all those parishes difperfed through the province of Canterbury in the midst of other dioceses, which are exempt from the ordinary's jurisdiction, and subject to the metropolitan only. All ecclefiaftical caufes, arifing within these peculiar or exempt jurifdictions, are, originally, cognizable by this court; from which an appeal lay formerly to the pope, but now by the ftatute 25 Hen. VIII. c. 19. to the king in chancery.

5. THE prerogative court is established for the trial of all teftamentary caufes, where the deceased hath left bona notabilia within two different diocèfes. In which cafe the probate of wills belongs, as we have formerly feen", to the archbishop of the province, by way of fpecial prerogative, And all causes relating to the wills, administrations, or legacies of fuch perfons are, originally, cognizable herein, before a judge appointed by the archbishop, called the judge of the prerogative court; from whom an appeal lies by [66]

ftatute 25 Hen. VIII. c. 19. to the king in chancery, inftead of the pope as formerly.

I PASS by fuch ecclefiaftical courts, as have only what is called a voluntary, and not a contentious, jurifdiction; which are merely concerned in doing or felling what no one opposes, and which keep an open office for that purpose, (as granting difpenfations, licences, faculties, and other remnants of the papal extortions) but do not concern themfelves with administring redress to any injury: and fhall proceed to

6. THE great court of appeal in all ecclefiaftical caufes, viz. the court of delegates, judices delegati, appointed by the king's commiffion under his great feal, and iffuing out of chancery, to represent his royal person, and hear all appeals to him made by virtue of the before-mentioned statute of Henry VIII. This commiffion is frequently filled with lords, fpiritual and temporal, and always with judges of the courts at Westminster, and doctors of the civil law. Appeals to Rome were always looked upon by the English nation, even in the times of popery, with an evil eye; as being contrary to the liberty of the fubject, the honour of the crown, and the independence of the whole realm; and were firft introduced in very turbulent times in the fixteenth year of king Stephen (A.D. 1151.) at the fame period (fir Henry Spelman obferves) that the civil and canon laws were first imported into England". But, in a few years after, to obviate this growing practice, the conftitutions made at Clarendon, 11 Hen. II.. on account of the disturbances raised by archbishop Becket and other zealots of the holy fee, exprefsly declare", that appeals in caufes ecclefiaftical ought to lie, from the archdeacon to the diocefan; from the diocefan to the archbishop of the province; and from the archbishop to the king; and are not to proceed any farther without fpecial licence from the crown. But the unhappy advantage that was given in the reigns af king John, and his fon Henry the third, to the encroaching [ 67 power of the pope, who was ever vigilant to improve all op

■ Cod. war. leg. 315,

• chap. 8.

portunities

portunities of extending his jurisdiction hither, at length riveted the cultom of appealing to Rome in causes ecclesiastical so strongly, that it never could be thoroughly broken off, till the grand rupture happened in the reign of Henry the eighth ; when all the jurifdiction ufurped by the pope in matters ecclefiaftical was restored to the crown, to which it originally belonged fo that the ftatute 25 Hen. VIII. was but declaratory of the antient law of the realm P. But in cafe the king himself be party in any of these suits, the appeal does not then lie to him in chancery, which would be abfurd; but, by the statute 24 Hen. VIII. c. 12. to all the bishops of the realm, affembled in the upper houfe of convocation (1).

7. A COMMISSION of review is a commiffion fometimes granted, in extraordinary cafes, to revise the sentence of the court of delegates; when it is apprehended they have been led into a material error. This commiffion the king may grant, although the ftatutes 24 & 25 Hen. VIII. before cited declare the fentence of the delegates definitive: because the pope as fupreme head by the canon law used to grant fuch commiffion of review; and fuch authority as the pope heretofore exerted, is now annexed to the crown by ftatutes 26 Hen. VIII. c. 1. and ↑ Eliz. c. 1. But it is not matter of right, which the subject may demand ex debito juftitiae : but merely a matter of favour, and which therefore is often denied.

૧

THESE are now the principal courts of ecclefiaftical jurifdiction none of which are allowed to be courts of record: P 4 Inft. 341.

¶ Ibid.

(1) No fuch affembly can exift as all the bishops of the realm in any house of convocation. But the ftatute fays, that the appeal fhall be to the bishops, abbots, and priors of the upper house of the convocation of the province, in which the cause of the fuit arises. Therefore in the province of York, the appeal lies now to the archbishop and his three bifhops. In the province of Canterbury, to the rest of the bench of bishops. See i vol. 280, n. 24.

no

Book III. no more than was another much more formidable jurifdiction, but now defervedly annihilated, viz. the court of the king's high commiffion in caufes ecclefiaftical. This court was erected and united to the regal power by virtue of the statute 1 Eliz. c. 1. instead of a larger jurisdiction which had before been exercised under the pope's authority. It was intended [68] to vindicate the dignity and peace of the church, by reforming, ordering, and correcting the ecclefiaftical state and perfons, and all manner of errors, herefies, schisms, abuses, offences, contempts, and enormities. Under the shelter of which very general words, means were found in that and the two fucceeding reigns, to veft in the high commissioners extraordinary and almost defpotic powers, of fining and imprifoning; which they exerted much beyond the degree of the offence itself, and frequently over offences by no means of fpiritual cognizance. For these reasons this court was justly abolished by statute 16 Car. I. c. 11. And the weak and illegal attempt that was made to revive it, during the reign of king James the fecond, ferved only to haften that infatuated prince's ruin.

II. NEXT, as to the courts military. The only court of this kind 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 marshal of England jointly; but fince the attainder of Stafford duke of Buckingham under Henry VIII. and the confequent extinguishment of the office of lord high constable, it hath usually with respect to civil matters been held before the earl marfhal only. This court by ftatute 13 Ric. II. c. 2. hath cognizance of contracts and other matters touching deeds of arms and war, as well out of the realm as within it. And from it's fentences an appeal lies immediately to the king in perfont. This court was in great reputation in the times of pure chivalry, and afterwards during our connexions with the continent, by the territories