Front Page Titles (by Subject) PART II.: THE COURTS, THEIR ORGANIZATION AND JURISDICTION - Select Essays in Anglo-American Legal History, vol. 2
The Online Library of Liberty
A project of Liberty Fund, Inc.
PART II.: THE COURTS, THEIR ORGANIZATION AND JURISDICTION - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 2 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1908). Vol. 2.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
THE COURTS, THEIR ORGANIZATION AND JURISDICTION
THE COMMON LAW COURTS AS ESTABLISHED UNDER EDWARD I1
IN 1196, under Richard I., there were numerous appointments of judges to the Curia Regis, including those of Hubert Walter, Archbishop of Canterbury, the Bishops of London and Rochester, and several laymen; and similar appointments continued to be made, both to the Curia Regis and to the Justices Itinerant, until the 52nd Henry III. (ad 1268), when the system was again altered.
In the meantime, however, dissatisfaction had arisen with the proceedings of the Curia Regis itself. This Court followed the King not only theoretically but actually. Where the King went to hold a Court there also went the Curia in both departments; the Curia Regis with the Justiciar, the Chancellor and the Justices, and the Exchequer with the Treasurer, the Chamberlain, the officers and the treasure. And thus the King in his progresses was accompanied not only by his great and smaller officers of State, but by carts and wagons loaded with bullion,3 with gold and silver plate, with jewels, and all the personal treasures of the King not deposited in the Abbey or in the treasury at Winchester. Numerous hanapers, or hampers of plaited rushes or straw, formed part of the baggage, and held the writs, the records, and the tallies necessary for carrying on the business of the courts. And thither in the wake of the King followed the suitors whose plaints waited determination in the King’s Court. These perambulations of the monarch reached their culminating point in the reign of King John. When he was out of the kingdom, Archbishop Hubert Walter acted as Chancellor and sat in the King’s place at Westminster. When he was at home, he was in constant progress through the country, and in the year 1211 it is said that he sat at no less than twenty-four separate towns.1 To all these resting-places the unhappy suitors followed, or lost the chance of their causes being tried. And accordingly it was provided, by the 17th clause of Magna Carta, that for the future, common pleas, or causes between party and party, as distinguished from Crown and Revenue cases, should not follow the King in his wanderings, but should be heard and determined in some ascertained and well-known place. “Communia placita non sequantur curiam nostram, sed teneantur in aliquo loco certo.” This ascertained place was Westminster Hall, and the Court of Common Pleas retained the name, down to its abolition as a separate jurisdiction in 1875, of The Court of Common Pleas at Westminster.
Here then we have the origin of the Court of Common Pleas, for although that Court was not actually constituted at the time of King John, nor was there any prohibition against common pleas being heard by the Curia and by the Exchequer, as had hitherto been the practice, yet the provision of the Charter involved the continued retention in London, or in the ascertained place to be afterwards fixed, of a sufficient number of justices and barons to compose a court for the hearing of the subjects’ causes. And thus it frequently happened that one division of the Curia was sitting at Westminster while another division was travelling about the country, either with or without the King, as the case might be; the Justiciar being sometimes with the judges in the county and sometimes with the judges in London.1 Numerous instances also occurred where, the Justiciar being absent, questions of law were left for him to decide on his arrival, or were sent to be discussed before him at Westminster. One of the questions so reserved was whether on proof of his ancestor’s absence for twenty years, an heir at law could enter upon the land of the missing owner, and take possession of the freehold, on the presumption that his ancestor was dead.2
Henry III. confirmed the Charter of his father in this as in other respects, and instituted a Court of Common Bench with duly qualified justices to sit perpetually at Westminster to hear causes between parties and to have exclusive jurisdiction in regard to certain claims. It had no criminal jurisdiction, did not follow the Sovereign in his peregrinations, and gradually absorbed all the private business of the country. In 1235, Thomas de Muleton3 was appointed Chief Justice of the Common Bench, being the first Chief Justice of either of the Courts of Common Law, and from this period personal actions gradually ceased to be heard either in the Curia Regis or in the Exchequer. To enforce this procedure Edward I.,4 after the abolition of the Curia, expressly declared that the hearing of common pleas in the Exchequer or elsewhere out of the Common Bench, was contrary to the provisions of the Great Charter.
The natural dissatisfaction which was felt with the Curia Regis rapidly extended to the appointment of Chief Justiciar. The position of this great officer of State was that of a politician and a soldier as well as, or perhaps more than, that of a creator and administrator of the law. Many statesmen of great eminence had held the post. Odo of Bayeux was the first, Hubert de Burgh was among the last. Henry, Duke of Normandy, afterwards Henry the Second, during the later years of King Stephen, was Chief Justiciar and sat regularly in the court. Henry III. also sat in person and delivered a judgment, which is reported.1 Ranulph de Glanvil, and possibly Henry de Bracton, also occupied the post of Chief Justiciar. Latterly, however, the office had fallen into less competent hands, and when the latter years of King Henry III. showed the scandal of two Chief Justiciars, one appointed by the king and one appointed by the barons, professing to exercise judicial functions at one and the same time as they were leading armies against each other in the field, it was felt that the moment had arrived when the office, with its inconsistent combination of statesman, soldier, lawgiver, and judge, should be brought to an end. Philip Bassett and Hugh le Despencer were the two so contending, and after the death of le Despencer on the field of Evesham, in 1265, and the subsequent resignation of Bassett, the King’s nominee, the Curia Regis and the Chief Justiciar ceased to exist.
The Curia Regis had thus been the Royal Court of England for a period of about 200 years. It sprang into being when the object of the Conqueror was to establish an autocratic power and to stifle the existing system of self-government, and it came to an end when the combination of the Barons had curbed the power of the Crown, and the growth of a National Parliament had re-asserted in a modified form the antient rights of self-government. From that time to the present the judicial has been definitely severed from the military and executive power, and succeeding Chief Justices have been lawyers and lawyers alone.
The accession of Edward I. (ad 1272-1307) found the Courts of King’s Bench, Common Bench and Exchequer sitting in Westminster Hall. No Act of Parliament or royal edict had abolished the Curia Regis, but it had come to an end, like many another English institution, because it had done its work and was no longer suitable to the times. The Constitutions of Clarendon (ad 1165) had recognised the Curia Regis as a tribunal of common resort,2 where the Bishops sat with the Justiciars and the Barons until cases of blood required them to depart. But since then its jurisdiction as a Supreme Court had been much impaired. The distribution of its business over the country, through the appointment of itinerant justices, who sat in their several counties as justices of the Curia Regis,1 had tended to this result, and at the same time the prerogative of the Chief Justiciar had been gradually encroached upon by the growing power of the Chancellor as a lawyer and a statesman. Its end was gradual, and the exact moment of its termination cannot be ascertained, for it actually overlapped the new system. The Justiciar and his colleagues held office for some years after the description of the King’s justices had been changed from the general appellation of justiciars to the limited title they still hold of justices assigned to hold pleas, coram rege, before the King.
The courts thus established, which from that time forward for six hundred years, under the familiar title of the Courts of Common Law, transacted the business of the country, reflected the condition of the English people at the period of their institution. The Normans, who had invaded but not overrun the country, impressed upon its surface their thoughts and traditions; but the Norman Inquisition had only emphasized the Anglo-Saxon practice of open trial by freemen and neighbours. Inter-marriages and territorial settlements had, also, by this time amalgamated the two races into one, so that there was no longer any recognised distinction between Norman and Anglo-Saxon, but all were equally English. And though the Norman blood was thought the more noble, and those families whose ancestors came over with the Conqueror regarded themselves as of a more patrician class, yet the great mass of the people were still of the Anglo-Saxon strain, whose manners and customs still survived. The language of the country was also in a state of transition—Latin was specially that of the learned, English was that of the common people, while French was gradually coming into use by all classes. The polyglot jargon of the courts and the law books belongs to a later date. Thus though the Norman system of Chief Justices and trained lawyers as Presidents of courts was accepted as safe and satisfactory in principle, yet the Anglo-Saxon method of local trials and the judgment of neighbours remained undisturbed, and was recognised as an essential feature of the new procedure. As the county in the Anglo-Saxon times was the unit for judicial administration, so also it remained under the Normans. And as the shire-gemote, formerly presided over by the Sheriff, who convened the suitors and arranged the details of business, was held twice in the year as the Supreme Court of the district for the trial of causes and of criminals, so also under the new system the county remained the unit, the Sheriff summoned the jurors and witnesses and arranged the business, and twice in the year the King’s justices, superseding the Sheriff in his office of President, visited each county and tried all causes and offences arising within its limits. Hither also came the witnesses and the suitors, collected from the county, who judged the law and the facts, and found their verdicts from their knowledge of the party’s reputation, and of the circumstances into which they had to inquire.
In the 52nd Henry III. (ad 1268) Robert de Brus (grandfather of Robert the Bruce, King of Scotland) was appointed the first Chief Justice of the King’s Bench. He was a man of noble lineage and of good fortune, who was a lawyer by education and by profession. He had acted for some years as a Justiciar, and had gone several circuits. His position, however, as Chief Justice was limited to the administration of justice: he was no longer a statesman or a viceroy, and the salary, which was 1,000 marks when the Chief of the Court was also Chief Justiciar, was reduced to 100 marks when the office was solely that of Chief Justice of the King’s Bench.1 In other words, £15,000 a year to the Chief Justiciar was reduced to £1,500 a year to the Chief Justice.
The Courts accordingly sat as the King’s Bench, the King’s Exchequer, and the Common Bench, otherwise the Common Pleas. The King’s Bench was presided over by the Lord Chief Justice with certain puisne or assistant judges, the Exchequer by the Lord Treasurer with the Chancellor of the Exchequer and other barons, and the Common Bench by the Chief Justice and other justices from time to time appointed by the King. It appears that for some time after the division of the Curia into these three separate courts, the Exchequer continued to try pleas between party and party, but in ad 1300 that court was ordered by Statute1 to refrain from hearing such causes as contrary to the Great Charter, and to confine itself to matters touching the King’s revenue. Shortly afterwards, in 1303, William de Carleton, a justice of the Common Pleas, was appointed Chief Baron of the Exchequer.2 This office he held concurrently with that of a puisne judge of the Common Bench, and was the first person so appointed. From this date, as vacancies in the office of Chief Baron from time to time occurred, they were usually but not invariably filled from the justices of the Common Bench. The justices so appointed continued to hold the two offices of Justice and Chief Baron, their duties at that period being in no way inconsistent, as the barons could not try causes or hear appeals, and the Common Bench had no jurisdiction over affairs of the revenue.
The business was divided in the following manner. The King’s Bench had exclusive jurisdiction in all pleas of the Crown, and in all appeals from inferior courts. The Common Bench had exclusive jurisdiction in all real actions or suits relating to land and in actions between private persons to try private rights, while the jurisdiction of the Exchequer was limited to causes touching the King’s revenue with which it had exclusive power to deal. All these judges went Circuit twice a year, the barons of the Exchequer only trying cases on the revenue side, and no baron being permitted to try a prisoner or a civil cause unless he happened also to be a justice of the Common Bench, when he tried prisoners and causes in the latter capacity. The Assizes were held in the County Courts, and those tribunals were for many years after the end of the Curia Regis constituted as before with bishops, abbots, earls, barons, knights and freeholders of the county, the reeve and the burgesses of each township in the county and all those who of old were accustomed to be summoned to attend the business of the court. Itinerant Justices were appointed from time to time for some generations after the accession of King Edward I., and they went circuits equally with the justices of the Courts of Common Law. But the practice was found to be inconvenient. All courts, including those of the Itinerant Justices, were closed so long as the King’s Judges of either Bench held their Justice Seat within the County. The Justices in Eyre had accordingly an inferior position and less authority, in public estimation, than the justices in the King’s Courts; there were great complaints of the expense and burthen cast upon the counties for the escort and entertainment of these numerous justices, and in 1335 they ceased to be appointed.
This division of the business of the courts, which was however much interfered with by various devices of the lawyers at a later period, had the inevitable result of throwing the greater portion of the work upon the Common Bench, which became, as it was called by Sir Edward Coke,1 “the lock and key of the Common Law,” or, more familiarly by Sir Orlando Bridgman, “the Common Shop for Justice.”2 Crown cases were limited in number, and the justices of the King’s Bench, after a time, were not only put into an easy position as regarded the work they were called upon to perform, but as in those days their principal source of income was from the suitors’ fees, they correspondingly suffered in pocket. The Common Bench, on the other hand, was always full of work, which rapidly increased, with the result that whereas the justices of the King’s Bench seldom numbered more than three or four, those of the Common Bench were frequently seven or eight and sometimes amounted to as many as nine. Thus under Edward I. there were at times four, five and six justices of the Common Bench in addition to the Chief.3 Under Edward II. the Court was ordered to sit in two divisions by reason of the multitude of pleas.4 Under Richard II. and under Henry IV. there were three justices of the King’s Bench and five of the Common Bench.1 Under Henry V. there were four justices of the King’s Bench and six of the Common Bench, in addition to the Chiefs.2 Under Henry VI. and Edward IV. there were four justices of the King’s Bench and seven3 and at one time eight4 of the Common Bench. The latter court had also this great advantage, that it sat always at Westminster, while the King’s Bench, the Exchequer, and the Chancery were liable to follow the progresses of the King. And although it soon became the practice to dispense with the attendance of the judges and the barons, unless the King had some special need for their assistance, yet when he was located for an indefinite period at some provincial town, and had there established his Royal Court, the King’s Bench and the Exchequer with their clerks, their secretaries, their treasure and their baggage moved from London in the wake of the Sovereign. Thus from 1277 to 1282 the Law Courts were at Shrewsbury,5 while the King was fighting in Wales, and from 1298 to 1305 they were at York,6 while the King was on his expeditions into Scotland. On the latter of these occasions a square chequer board with the necessary seats and fittings was erected in the yard of York Castle for the use of the barons and the accountants of the Exchequer.
The decadence of the smaller courts in the various counties and the scandals arising therefrom led to a new departure in the administration of justice, and in the reign of Edward III. (about 1327) Justices of the Peace for each county were first appointed. In or about 1350 they were ordered to hold Sessions quarterly to try breaches of the Statute of Labourers.7 About 1359-608 they were empowered to try crimes and misdemeanours committed in their county, and by a Statute of Edward IV.9 they were empowered to sit regularly in Quarter Sessions for general business.
The immediate reason for the permanent establishment of Quarter Sessions, as recited in the preamble to the Statute, appears to have been the misconduct of the sheriffs, who packed the juries, compelled the payment of excessive fees, and by various extortionate devices held unhappy suitors to ransom. And here again, the Anglo-Saxon system of self-government seems to have been recognised, by the removal of these trials from the Sheriff or officer of the Crown to the resident gentry and landowners of the county.
The story of the Courts of Common Law from the closure of the Curia Regis to the end of the civil wars is a history rather of individual judges than of any substantial changes in legal procedure.
THE HISTORY OF THE COURT OF CHANCERY1
IT has always been held by the great oracles of the law, that the principles of the Common Law are founded on reason and equity;3 and so long as the Common Law was in the course of formation, and therefore continued to be a lex non scripta, it was capable—as indeed it has ever continued to be, to some extent—of not only being extended to cases not expressly provided for but which were within the spirit of the existing law,4 but also of having the principles of equity5 applied to it by the judges in their decisions,1 as circumstances arose which called for the application of such principles. This was more especially open to the judges as regards defences to actions which were not founded on writs, and were therefore under their own control. But in course of time, a series of precedents was established by the decisions, or responsa, as Bracton calls them, of the judges, which were considered as of almost equally binding authority on succeeding judges as were the acts of the legislature; and it became difficult to make new precedents without interfering with those which had already been established. Hence (though new precedents have ever continued to be made), the Common Law became, to a great extent, a lex scripta, positive and inflexible; so that the rule of justice could not accommodate itself to every case according to the exigency of right and justice.2
The Romans, as has already been mentioned, had found themselves in a similar condition as regards the law which was contained in the Twelve Tables, and the subsequent additions which had been made to it. To supply this deficiency in their original system of jurisprudence, first the Consuls, then the Prætors, were permitted as occasion required to correct “the scrupulosity and mischievous subtlety of the Law,”3 and supply its defects; not, indeed, as regards the Prætors, by altering the law itself, but by means of a distinct equitable code, framed by themselves and propounded on entering on their office; and which was for the most part administered by the same tribunals which dispensed the ordinary law, and by the same mode of procedure.4
Hadrian, as we have seen, compiled from the previous Edicts a code of Equitable Jurisprudence,1 and that code was expounded by the commentaries and responsa of the Jurisconsults, so that it became, like the Common Law of England, though by a different process, a lex scripta. But even the jus honorarium, when thus reduced to system, was found to be insufficient to answer every exigency. It appears that the judges and persons intrusted with the administration of the law, assumed authority to apply principles of equity, or natural justice, to the particular cases which seemed to require such an interposition. However, probably from a fear of the uncertainty and inconvenience which might have resulted from such a course being pursued, Constantine, ad 316, and after him Valentinian, as has already been adverted to,2 prohibited the judges from exercising any such discretion, reserving to themselves alone, in their consistory or council, the application of principles of equity, as distinct from the received rules and maxims of the law.3 From that time cases were continually referred to the Emperors, either originally, or by way of appeal; and their decisions, thus pronounced, as well as their less formal rescripts, became part of the written law.4 If such a deficiency was found to exist after Hadrian’s Edict, we cannot be surprised at its having been experienced in England at the time when the Court of Chancery first came into existence as a distinct Court of equity.5 A very large infusion of equitable principles had been incorporated in the Roman law by means of the Perpetual Edict. In those important branches of the law, particularly, which related to contracts, a system of equitable jurisprudence had been introduced, which left little, if anything, to be supplied. Equitable principles were applied to every contract of sale and purchase, pledge, letting, hiring, and the like;1 whether the contract were executory, or perfected. In the former case, if there were a want of complete bona fides, the jus honorarium furnished a good defence to any attempt to enforce it at law;2 in the latter, by the same law the party complaining might, by a rescissory action, avoid the transaction,3 and a purchaser, who had been in any way defrauded, might bring an action for compensation, if that would afford a more appropriate remedy than a rescission of the transaction:4 express stipulation on the part of a contracting party for exemption from any such liability was of no avail.5 Provision was also made for the correction of mistakes, without rescinding the transaction.6 In every case, particularly in respect of transactions which were classed as bonæ fidei,7Fraud might be taken advantage of by way of defence;8 and where a person sustained an injury or loss by means of a fraud, for which he could not obtain redress by any recognized form of action, the Perpetual Edict gave him a remedy according to the circumstances of the case.9 These were the remedies which might be obtained before the ordinary tribunals; but, large as they were, it was found that proceedings by action in cases of fraud and circumvention, would not afford in all cases an adequate remedy;1 and that there were many cases calling for relief, which could not properly be provided for by any form of proceeding in the ordinary tribunals. Hence by a Prætorian Edict, which was incorporated in the Perpetual Edict, liberty was given to every person who had been led into doing any act by which his rights were affected, through fear, surprise, circumvention or trickery, or by mistake, “justum errorem,” to resort to the extraordinary jurisdiction2 of the Prætor for a Restitutio in integrum, that he might be restored to his rights, and placed in the same position as if no such transaction had taken place.3
The provisions of the Common Law of England, both as regards its principles and mode of procedure, but more especially the latter, at the period above alluded to, namely, the reign of Edward III., as will have been in part observed from the preceding sketch, fell far short of the lex scripta of the Roman jurisprudence. In many of the cases above enumerated, for which provision was made by the Roman law, no remedy, or at least no adequate remedy, could be obtained. Even as regards such of the principles of equity belonging to the Roman jurisprudence as were admitted into the Common mon Law, no adequate means for carrying them out were provided.
A system which was so materially deficient to answer the purposes of justice, could not be satisfactory.1 The Roman scheme of judicial organization, as handed down by the corpus juris, as we have seen, presented for imitation two modes for supplying the deficiencies of the English system: the one was for the Chancellor to supply the deficiencies of the law by introducing a jus honorarium to be administered by the Courts of Law; the other was to resort to the royal prerogative in each particular case, where no remedy, or an inadequate remedy, was provided by the law.2 The first method, namely, the introduction of a jus honorarium, could not be acted upon by the Chancellor of his own authority, as will have been collected from what has already been stated: for though the Chancellor issued all writs, the Judges of the Common Law Courts assumed exclusive jurisdiction to decide upon their validity, disregarding the sanction of the Chancellor, and his College of Clerks.3 Nor could the Chancellor declare what should be a sufficient defence to an action; indeed, with this part of the judicial machinery he had no opportunity to interfere.
However, it was possible to attempt a remedy of a corresponding nature to the Jus honorarium by means of the legislature, and that attempt was made, as has already been noticed, by the statute of Westminster the Second (13 Edward I.).4 This statute opened the measn of obtaining remedies in numerous cases, which were before excluded by the rules of the common law; and other statutes were passed to supply many of the deficiencies in the common law, as new circumstances, unprovided for by the law, arose.
But in fact a lex scripta grew up in the interpretation of the apparently large and flexible provisions of the statute of Westminister the Second itself. To supply the yet existing deficiencies in the law, the remaining expedient presented by the Roman judicial system, namely, the exercise of the royal prerogative in particular cases, and on their own circumstances as they occurred, was resorted to in the manner to be hereafter described.
But over and above these calls for the interference of the prerogative, the circumstances of the times1 required that some extraordinary powers should be exercised to prevent obstructions to the course of justice, even in cases where the law was sufficient, if duly administered, to afford a complete remedy—a necessity quite as urgent as that which arose from the deficiencies in the law itself. This combination of circumstances ultimately gave rise to the establishment of the extraordinary jurisdiction of the Court of Chancery, on which subject we are now about to enter. But it will be necessary for us, first, to direct our attention to the constitution of the King’s Select Council, from which the Court of Chancery may be said to have sprung.
We must go back a little in order to examine into the constitution of the Select Council after the Norman Conquest, which has hitherto been only casually adverted to, as the functions of the Court of Chancery were in the first instance delegated to that council.
The Norman Sovereigns, like their Anglo-Saxon predecessors,2 were advised in the exercise of their prerogatives in respect of matters political and judicial,3 by a Council always in attendance on the king’s person, which was distinct from the Great Council or Parliament,4 though, as it would appear, forming part of the Great Council when assembled. The king presided in both, and they had the same general appellation, namely, “The Council,” till the reign of Edw. I., from which time the Great Council, which usually was called together four times in the year, obtained the settled name of “The Parliament.”1
3 It is not easy to distinguish the peculiar functions of each of these councils;2 probably the functions of the minor or Select Council were in a great part suspended, whilst the Great Council was sitting; certainly from the time of Edward III. the Council and the Lords’ House were frequently blended together as a Council within a Council; but in that reign the Lords as a distinct body were the Judges of Parliament,4 though even then we find matters referred to the select Council, sometimes, that they might make a report to a subsequent Parliament.5
This select Council was composed of certain great officers who were members ex-officio, as the Chancellor, Treasurer,6 the Grand Justiciary and other justices in the early reigns,—the justices of either Bench after the institution of separate courts,—the justices in Eyre—the Escheators,7 and such others, usually but not exclusively, Bishops, Earls, and Barons, as the king thought fit to name.
The serjeants and the masters, who have already been mentioned and whose office will be further described hereafter, were also occasionally called in.8 Ultimately the masters became ex-officio members of the council9 for the purpose of advice.
The official members on some occasions sat alone, at other times with those who were associated to them.1
Whenever the council required the assistance of other persons, they were summoned by writs issued by the Chancellor, by order of the council, according to circumstances; and if any information was required by the council in respect of any matter before them, writs and commissions emanating from the council were dispatched out of the Chancery, and the inquisition taken under such writs having been presented to the council, such orders were thereupon made as justice appeared to require.2
This was the king’s permanent council, or what would now be termed the Privy Council in contradistinction to the Great Council or Parliament, before described, which only met in obedience to special writs of summons, whereas this council was always sitting for the dispatch of business.3
This council was used to sit in different chambers about the palace, such were the Painted Chamber, the Whitehall, the Chamber Marcolf; sometimes in la Chambre des Etoiles, to which place of their meeting the general return of certain writs in the reign of Edward III. coram nobis in camera, are referred. The council very often sat in the Chancery.4
It appears that in early times, probably down to the reign of Edward III., as will be more particularly noticed hereafter, it was in this council, presided over by the king himself, or some person delegated by him when absent, that all applications for the special exercise of the prerogative in regard to matters of judicial cognizance, criminal and civil, were discussed and decided upon.
The general nature of the applications which were addressed to the council may be ascertained from the answers to the petitions which have been preserved; they are as follows:—sue at Common Law, (that is by ordinary writ,) or in the County or Hundred Court;—sue in the Exchequer;—sue in Chancery, that is before the ordinary common law court held before the Chancellor, which will be noticed hereafter;—a writ on the subject shall be dispatched out of Chancery;—the king will consider;—a remedy shall be provided, and the like.1
As regards the particular description of judicial business which was disposed of by the council itself in early times, we are left somewhat to conjecture. It seems to have exercised a Criminal as well as Civil jurisdiction. Sir Francis Palgrave considers that the council exercised a general superintending authority over the courts of common law, though in a manner rather resembling the authority which a tribunal exercises over its members, than as resulting from the subjection of one court to another.2
Mr. Hardy, in his Introduction to the Close Rolls, has set out a passage from Benedict Abbas, from which it would appear that, so early as the time of Henry I., the council took cognizance generally of those cases which the ordinary judges were incapable of determining.3 From the records of the proceedings of this council in after times, we learn, that the council by delegation from the king, advised as to the exercise of the prerogative on all applications to obtain a remedy for injuries and acts of oppression, where from the heinousness of the offence, or the rank or power of the party, or any other cause, there was likely to be an impediment to a fair trial, or to the attainment of appropriate redress, in the ordinary tribunals; so also when by force and violence, justice was prevented taking its ordinary course.1 The council on such applications either took the case into their own hands, or gave specific directions in regard to it according to the circumstances of the case.2 Where a party was suffering imprisonment by the process of an inferior court, the double remedy of a subpœna against the pursuing party, and a writ of Habeas Corpus cum causa was sometimes given.3 The council had the power of issuing writs into all special Jurisdictions or Franchises, as Wales and Ireland,4 which, with their other extraordinary powers, gave them surpassing capabilities beyond those of any other court, except the Court of Chancery. The poor appear to have been the objects of their particular care.5 “For God and in work of charity” generally concluded all the petitions to the council.6
The council also appears to have exercised a prerogative jurisdiction in cases of fraud, deceit, and dishonesty, not so tangible as to be within the reach of the common law; and int. alia to have issued writs of ne exeat regno in civil cases against foreign debtors who desired to escape from payment of their debts.7
The clergy, as before observed, having been excluded in the time of Henry III. from entertaining any question as to fidei læsio and juramenti transgressio, may account for the council having been applied to in cases of fraud and deceit, after the reign of that monarch.
The interference of the Prerogative with the ordinary course of justice to the extent and in manner above described, appears to have been recognized in early times as constitutionally unobjectionable; but to provide against abuse, the Barons at various times claimed to have a voice in the appointment of the Chancellor, Judges, and great officers of state, who were ex-officio members of the select council, and which at times they exercised in Parliament.1 By the articles agreed on in the eighth year of Henry VI. it was provided, that all Bills forwarded to the council that embraced matters terminable at the common law should be sent there to be determined, unless there were too much might on one side, or there were other cause reasonable moving the council to retain them.2 By the statute 5 Rich. II. stat. 1, c. 8, those who had lost their deeds in the late troubles were authorized to present petitions to the king and his council, when such remedy was to be provided as was just; in this we may recognize an old Anglo-Saxon custom.
The Great Council, or Parliament, was also a court for judicial purposes, ordinary and extraordinary. Indeed, in the time of Edward I., and for some time afterwards, the Parliaments, excepting as regards the granting of taxes, were not so much legislative assemblies, as the King’s Great Council in which subjects applied for judicial relief against their fellow subjects.3 In early times petitions of all kinds and descriptions were presented to the king, or to the Great Council on the occasion of their meeting.4 The Parliament, or Great Council, itself disposed of many of the cases brought before it; amongst the rest those which had been referred to it, from their difficulty, by the ordinary tribunals.5
If the case required a new law, an award was made by the king and barons, who alone at this time, as already observed, interfered in regard to matters connected with the administration of justice.1 This award in early times had the force of a statute; afterwards the Commons, as has already been mentioned, established the right of concurring in all legislative Acts, and, by consequence, in these awards, which then became what are now called Private Acts of Parliament.2
In cases not requiring special interference, the same course seems to have been there adopted as on the applications which were made to the council. If the matter were remediable at law, and there were no obstacle to the remedy being obtained, the petitioner was sent to the Common Law Courts; if it were a matter of revenue, he was sent to the Exchequer; if the matter related to the king’s grants, or other matters cognizable under the Chancellor’s ordinary jurisdiction, he was sent to the Chancery; if it were matter proper for the consideration of the council it was sent there.3 The judges, and other official members of the select or privy council, originally attended as a constituent part of the Great Council; but in the time of Edward III. or Richard II. the Lords, by their ascendency, threw the judges and other official members of the council into the shade, and took the decisive jurisdiction into their own hands;4 thus, their ancient colleagues of the council, not being Lords, have been reduced to the condition of silent assistants, unless when called upon to give their opinions.5
During the time to which the references in the preceding pages relate, a growing Jurisdiction, exercised by the Chancellor apart from the council, is observable, the nature and progress of which are now to be the subject of inquiry. The Chancellor, whose office has been traced down to the reign of Henry II., continued to exercise very important functions; he was still almost always a high dignitary of the Church, and besides his independent legal jurisdiction, which will be particularly noticed hereafter,1 it would appear that this great officer was the principal actor as regards the judicial business which the Select Council, as well as the Great Council, had to advise upon or transact.2
Thus Matthew Paris, incidentally mentioning Radulphus de Neville, Bishop of Chichester, who was Chancellor to Henry III., says, “qui erat Regis fidelissimus Cancellarius, et inconcussa columna veritatis, singulis sua Jura, precipue pauperibus, juste reddens et indilate.”1 There are earlier notices of a similar kind. The panegyrics composed in honor of the famous Thomas à Becket, Chancellor of Henry II., by Fitzstephens, and of the Bishop of Ely, Chancellor of Richard I., ad 1189, by Nigel de Wetekre, refer to each, in the following terms,—
As to the latter it is added—
In the reign of Edward I., the English Justinian in more than one sense, we begin to observe unequivocal marks of an extraordinary jurisdiction exercised in the Chancery in civil cases. It was a custom with this monarch to send certain of the petitions addressed to him praying extraordinary remedies, to the Chancellor and Master of the Rolls, or the Chancellor or the Master of the Rolls alone, by writ under the privy seal, (which was the usual mode by which the king delegated the exercise of his prerogative to the council,) directing them to give such remedy as should appear to be consonant to honesty (honestati).3 There is reason to believe that this was not a novelty.4 Considering what was the constitution of the council, great inconvenience and uncertainty must have resulted from leaving the correction and extension of the law in civil cases to such a tribunal; though it would appear from an ordinance issued in the 8 Edward I., that the Chancellor was not necessarily the person to whom the exercise of the prerogative of grace even in matters purely civil was committed. When the Chancellor administered relief independently of the council, it was by express delegation from the king, and given, as it would seem, by the advice of the council.1 It will be remembered, that it was in the 13th year of the same king that the stat. of Westminster the Second, which authorized the granting of writs in consimili casu, was enacted, by which the necessity for many of these applications must have been superseded.
Several records relating to the Court of Chancery during the reign of Edward II. have been brought to light by Lord Campbell, from which it appears that the court was then in full operation.2
In the reign of Edward III. the Court of Chancery, as a court of ordinary jurisdiction, became of great importance. The Chancellor, under his ordinary jurisdiction, held Pleas of scire facias for repeal of letters patent,—of petitions of right, and monstrans de droit for obtaining possession or restitution of property from the Crown3 —Traverses of offices,4 —scire facias upon recognizances,—executions upon recognizances,—executions upon statutes,5 and pleas of all personal actions by or against any officer or minister of the Court of Chancery.6
The Chancellor also held jurisdiction on appeals of false judgement, when any lord would not do right to those under his jurisdiction.7 He was visitor of colleges, etc., of royal foundation, and had jurisdiction1 as to the king’s wards;2 he also took security for keeping the peace.3
The jurisdiction of the court as to recognizances, appears to have arisen in this way. It was a practice to secure the fulfilment of grants and leases, and other contracts, by recognizances acknowledged in Chancery; the power of issuing the writs of execution belonged to the court, and it naturally, therefore, assumed the power to judge of the default by which the recognizance was alleged to have been forfeited.4 Recognizances were afterwards, as we shall see, imported into the extraordinary jurisdiction of the court, and made use of to bind the parties to do right.5
The Chancellor had jurisdiction in all cases in which the crown was concerned.6 The petition of the Commons, 45 Edward III., seems to admit, that when the king was a party, he had a right to sue in the Court of Chancery, or in the ordinary courts of law at his pleasure, and so it seems had his grantees.7
The proceedings in all or most of these cases, were by common law process, not by petition or bill; but the Chancellor never had authority to summon a jury: on issue being joined on a matter of fact, in a cause before the Chancellor in his ordinary court, it was tried in the Court of King’s Bench.8 The Chancellor in the exercise of his ordinary or common law jurisdiction could not advert to matters of conscience.9
A summary jurisdiction was committed to the Chancellor in many cases, by various Acts passed in this reign, but whether to be exercised according to the formalities of common law procedure, or according to the course of the council, is matter of doubt.1
In this reign (Edward III.) the Court of Chancery appears as a distinct court for giving relief in cases which required Extraordinary remedies. The king being, as may well be conceived, looking to the history of his busy reign, unable from his other avocations to attend to the numerous petitions which were presented to him, he, in the twenty-second year of his reign, by a writ or ordinance referred all such matters as were of Grace, to be dispatched by the Chancellor or by the Keeper of the privy seal.2
The establishment of the Court of Chancery as a regular court for administering extraordinary relief, is generally considered to have been mainly attributable to this or some similar ordinance.3 It will be observed, that it conferred a general authority to give relief in all matters of what nature soever requiring the exercise of the Prerogative of Grace—differing from the authority on which the jurisdiction of the courts of common law was founded; for there the court held jurisdiction, in each particular case, by virtue of the delegation conferred by the particular writ, and which could only be issued in cases provided for by positive law. This is one of the great and fundamental distinctions between the jurisdiction of the courts of common law and that of the Court of Chancery.
However, as will have been observed by the references in the preceding pages, matters of Grace were not yet sent exclusively to the Chancellor or the Lord Privy Seal. The Great Council and the Privy Council still entertained questions of this nature by delegation from the sovereign. Some cases also were still specially sent to the Chancellor, or Chancellor and Treasurer, sometimes with a requisition that they should assemble the justices and serjeants and others of the council, to assist in their determination.1
From this time suits by petition or bill, without any preliminary writ, became a common course of procedure before the Chancellor2 as it had been in the council. On the petition or bill being presented, if the case called for extraordinary interference, a writ was issued by the command of the Chancellor, but in the name of the King,3 by which the party complained against was summoned to appear before the Court of Chancery to answer the complaint, and abide by the order of the Court.4
One great engine for the discovery of truth, which, as before observed, was unknown to the common law, namely, the examination of the parties on oath, was employed by this tribunal, as it was by the council from which this court was now branching off.
The principles on which the decisions of the Chancellor in the exercise of the extraordinary jurisdiction thus committed to him, were founded, were, it would seem, those of Honesty,1 Equity, and Conscience.2 The latter, as a principle of decision, was then unknown to the common law,—it was of clerical introduction; Equity was known to the Roman law,3 and was, as we have seen, long before this acknowledged, to some extent at least, as a rule for decision in the common law courts;4 but Equity is reserved for a more full discussion in a subsequent page.
The increased importance of the ordinary and extraordinary jurisdiction of the Chancellor5 appears to have attracted the attention of the people at large; all would naturally be anxious that the office should be filled by competent persons. It seems to have been considered by some that the extraordinary jurisdiction might, if left in the hands of persons not versed in the common law,6 be converted to the destruction of the law. Urged, probably, by some such suggestions, Edw. III. in the 15th year of his reign appointed Robert Parning, King’s Serjeant, his Chancellor. “This man,” says Lord Coke, “knowing that he who knew not the common law could never well judge in equity, which is a just correction of law in some cases, did usually sit in the Common Pleas, which court is the lock and key of the common law, and heard matters in law there debated, and many times would argue himself.”1 He died two years afterwards.
In the 45th and 46th years of Edward III.,2 between which time and the death of Serjeant Parning there had been several clerical Chancellors, and the important ordinance of the 22d Edward III. had been issued, Sir R. Thorpe, Chief Justice of the Common Pleas, and Sir J. Knivet, Chief Justice of the King’s Bench, were respectively appointed to the office of Chancellor. This was, probably, in consequence of the petition of the Lords and the Commons, of the 45th Edward III., which prayed, that as ecclesiastics were not in all cases amenable to the laws, lay persons should for the future be selected for this high office.3 Sir J. Knivet continued Chancellor till the 50th year of the king; but from that time, and probably for the reasons amongst others, which will be presently mentioned, the office returned to its accustomed channel.4
By the statute 37 Edward III. c. 18, it was enacted, that all those who made suggestions to the king, putting in danger the liberty or franc tenement of any person, should be sent with such suggestions before the Chancellor, the Treasurer, and the king’s Great Council, and should there find surety to pursue their suggestions, and should incur the same penalties on failure as would have been inflicted had the matter been proved.5
In this reign the Court of Chancery, as well as the Court of King’s Bench, ceased to follow the king.1
The terms “Honesty,” “Equity,” and “Conscience,” which, as we have seen, were the recognized principles of the decisions of the Chancellor, under his extraordinary or prerogative jurisdiction in the reigns we have just passed over, would rather lead to the supposition that the jurisdiction as originally exercised was confined to cases of a nature purely civil. But in the reign we are now entering upon, the disorderly state of the country, and the insufficiency of the ordinary means of preserving internal peace and order, appear to have called forth the exercise of the authority of the Chancellor, as well as of the Council, in a manner partaking of a criminal character.
The ancient system of police by mutual borh, or pledge, and the other police regulations, which Bracton describes in his 3d Book (de Corona), would appear in theory to have been amply sufficient for the preservation of the peace; but it is evident that they were found to be ineffectual in practice, or incapable of being enforced.
Edward III. and his Council found it necessary, in the very first year of his reign, to adopt some more effectual measures of police than those which already existed. For this purpose Justices of the Peace were instituted throughout the country.2 It was the duty of these magistrates to repress violence and disorder of every kind, and for that purpose they were, amongst other things, empowered to take security for the peace, to inquire into misbehavior of officers, and to inflict punishment for trespasses, extortions, and similar offences.
Early in the reign of Richard II. it was found necessary to provide some further measures for repressing forcible entries on lands. By the 5th Richard II. stat. 1, c. 8, persons so offending were subjected to imprisonment; by the 15th Richard II. c. 5, in case of forcible entry, any Justice of the Peace might take the power of the country, posse comitatus, and put the offender in jail.1
2 But the course of justice itself was interrupted, and all these provisions were rendered in a great degree ineffectual by the lawless spirit of the times. The Commons in the 5th year of Richard II. complain of “grievous oppressions in the King’s Courts, the Chancery, King’s Bench, Common Bench, and Exchequer, by the multitude of braceours of quarrels, and maintainors, who are like things in the country, so that justice can be done to none.”3
In this state of things the middle and lower orders of society were almost out of the protection of the law.
The defence of the poor and helpless, as has already been observed, was one of the most ancient, as it was in the early period of our history one of the most essential, of the prerogatives which descended from the Anglo-Saxon to the Norman sovereigns.4 Henry III. had found it necessary to direct special commissions throughout the country, to inquire into the oppressions of the poor, with a view to their redress.5
In the reign of Richard, the unsettled state of the country tended to encourage every sort of violence; the necessity for more than the ordinary means of protection from oppressions and spoliation was obvious; the Justices were overawed, and in some instances the very powers which were confided to them, were employed as instruments of oppression, so that in a subsequent reign it was found necessary to place the Justices themselves under the especial supervision of the Chancellor.1
The Chancellor, therefore, at the very outset of Richard’s reign, the king being himself of tender years, with the sanction no doubt of the Council, exercised an authority, especially in favor of the weak, for repressing disorderly obstructions to the course of the law, and punishing the defaults of the officers who were entrusted with its administration, and affording a civil remedy in cases of violence and outrage, which, for whatever might be the reason, could not be effectually redressed through the ordinary tribunals; this jurisdiction will be more particularly considered hereafter.
The Commons seem to have taken great umbrage at this exercise of authority on the part of the Chancellor, particularly as the Chancellor did not scruple to entertain jurisdiction in cases of violent dispossession of land, which was an interference with franc tenement, of which they were very jealous. The Commons required that all such cases should be left to the Common Law;2 but the Chancellors,3 supported by the Council, and under the shield of the clerical character, persevered against all opposition in exercising this branch of the prerogative, in the Council, and in the Court of Chancery;4 and a resort to the Chancellor under his extraordinary jurisdiction was thus secured for the poor, the weak, and the friendless,5 to protect them from the injuries to which they were exposed.
But many powerful reasons operated to induce persons of all classes to apply for the powerful aid of the Chancellor in cases which were not strictly within the range of the principles above adverted to. Before the Chancellor, disputed facts might be established by the personal examination, on oath, of the party against whom any complaint was made,—an advantage which could be obtained in no other court, with the exception of the Council. Besides this the Court of Chancery, and the Council, alone exercised a general Preventive jurisdiction. Again, it was in the Court of Chancery or the Council only that, in some cases of outrage, compensation could be obtained, the only remedy the Common Law afforded being punishment through the medium of criminal process.1 These concurrent causes operated, about the time we are now contemplating, to bring numerous suitors to this court.
In this reign petitions, or Bills as they were afterwards called here as in Parliament, were addressed directly to the Chancellor himself, whether because he was the person to whom the prerogative of grace had been committed,2 or, as some have conjectured, because it was known to the suitors that to that high dignitary their petitions would ultimately be referred.3 Many of these Bills are extant, some have been published by the Record Commissioners; most of these are founded on some outrage or violence for which redress is sought: they will be referred to more particularly in a future page.4
The Commons reiterated their petitions against this growing jurisdiction.1 The particular grounds of their remonstrances were, that persons were called to this court, not upon any specific complaint, but quibusdam certis causis; that persons were required to answer as to their franc tenement, (which was something almost sacred in the minds of land-owners,) and to disclose their titles, which the Commons denounced as being contrary to law; that the course of proceeding was not according to the Common Law, but the practice of the Holy Church; and that the process of these extraordinary tribunals was abused by being employed as the means of extortion.2 The answer to these remonstrances generally was, that the king would preserve his prerogative.
It is a little remarkable that amidst these complaints, although no Act of the legislature had conferred on the Chancellor any of the coercive powers which the Commons so forcibly denounced, no direct complaint is made, as to the jurisdiction which he had assumed being an invasion of any constitutional principle, or that this permanent delegation was an excess in the exercise of prerogative. Acts of Parliament indeed3 had been passed, which possibly may have been intended by one branch of the legislature at least, to control the extraordinary jurisdiction exercised by the Council, and subsequently by the Chancellor; but if so, they failed of their intended effect, as regards both: and the same fate attended the stat. 4 Hen. IV. c. 23, which will be presently mentioned.
The Commons not succeeding in their attempts to extinguish this extraordinary jurisdiction, they addressed their petitions to its due regulation, and in consequence, by the statute 17 Rich. II. c. 6, it was enacted, that where persons were compelled to appear before the Council or the Chancery on suggestions found to be untrue, the Chancellor should have the power to award damages according to his discretion; and though it was not until the statute or ordinance of the 15th Henry VI. c. 4, that it was directed that no writ of subpœna should issue until surety should be found to answer the party his damages if the matter contained in the bill could not be made good, sureties had been in fact required in the reign of Rich. II.1
From the time of passing the stat. 17 Richard II. we may consider that the Court of Chancery was established as a distinct and permanent court, having separate jurisdiction, with its own peculiar mode of procedure similar to that which had prevailed in the Council, though perhaps it was not yet wholly separated from the Council.2
The writ of subpœna, in its modern form, prior to the late alterations, now came into general use in the Court of Chancery, though, as appears from the preceding authorities, it was not then invented, as stated by the Commons, 3 Hen. V.3 In many of the petitions or bills, no other relief was prayed, than that a subpœna might issue.4
References to the Council were still made in extraordinary cases of a nature purely civil, but it seems to have been considered there, that the Chancery was the proper Court for making decrees in such matters.5
In this reign we find some matters delegated to the Chancellor by authority of Parliament. In the 15 Rich. II. two petitions were addressed to the King and the Lords of Parliament; the answer to each was the same, that the petition be sent to the Chancery, and by authority of Parliament the Chancellor was to cause the parties to come before him in the said Chancery, and there, the matter contained in the petition, to diligently view and examine, and hear the reasons of the one party and the other; “and further, let there be done by authority of Parliament that which right and reason and good faith and good conscience demand in the case.”1
Petitions for extraordinary remedies were still presented to the king, but they were usually referred by him to the Chancellor.2
The Chancellor at this time was assisted in the exercise of his judicial duties, legal and equitable, by the Master of the Rolls;3 but this high officer and his duties will be the subject of particular notice hereafter.
An event which I am about to notice took place in this reign, which appears to me to have had great influence in the establishment of the extraordinary jurisdiction of the Court of Chancery, and in throwing it into the hands of the clergy.
In the reign of Edward III. the exactions of the court of Rome had become odious to the king and the people. Edward, supported by his Parliament, resisted the payment of the tribute which his predecessors from the Conquest downwards, but more particularly from the time of John, had been accustomed to pay to the court of Rome; and measures were taken to prevent any further encroachments of the papal power.4 A general distaste on the part of the laity of all ranks to everything connected with the Holy See had begun to spring up. The name of the Roman Law, which in the reigns of Henry II. and III., and of Edward I., had been in considerable favor at court, and even as we have seen with the judges, became the object of aversion.
In the reign of Richard II. the barons protested that they would never suffer the kingdom to be governed by the Roman law, and the judges prohibited it from being any longer cited in the common law tribunals.1 Perhaps one object on the part of the judges might have been to exclude the doctrine as to fidei commissa, or trusts, which, as we shall see, first came distinctly into notice in this reign. The effect, however, of the exclusion of the Roman law from the common law tribunals, was, as will be more particularly noticed when I come to treat of Trusts, that a distinct code of laws was formed and administered in the Court of Chancery, by which the enjoyment and alienation of property were regulated on principles varying in many essential particulars from the system which those who originated and carried into effect the exclusion of the Roman law, were so anxious to preserve.
Nor were these united endeavors for the exclusion of the Roman law, as it appears to me, less important in fixing the appointment of the office of Chancellor in the members of the clerical body. Notwithstanding all the efforts that were made to repress them, Trusts soon became general. Some rules for their regulation were absolutely necessary—it was from the Roman law they had sprung up;—who so proper to introduce and systematize the necessary rules for their regulation, as those who were now exclusively conversant with this law, and who alone, as it was excluded from the Common Law Courts, could resort to it for their guidance? Accordingly, from this time (with some exceptions, which only tend to affirm the general proposition) none but clerical Chancellors were appointed, down to the 21st year of Henry VIII.
It may well be doubted, whether, but for this last circumstance, the system of equitable jurisprudence which we find established in the reign of Henry VIII., on which the doctrine of Uses, and much of the modern jurisdiction of the court is founded, would then have existed. The antipathy to the Roman law, which in the reign of Elizabeth was extended as regards a considerable portion of the community, to everything Roman, and the intensity of which has scarcely yet subsided, broke forth in the latter end of the reign of Elizabeth, and in that of James I., in a way that leaves little doubt as to what would have become of the equitable principles of the Court of Chancery, if that court in its infancy had been permanently committed to Common Law Judges as Chancellors. Although a little in anticipation, I cannot but here notice, as some confirmation of the conjecture which is hazarded above, that a writer of the reign of James I., who, if not as he styles himself, a Serjeant, was evidently speaking the sentiments of that order,1 says, “The Common Law commandeth all that is good to be done.”2 —“The suit by subpœna is against the common weal of the realm.”3 The whole of the system which formerly prevailed in the Court of Chancery as to Uses, and which was then applied to Trusts, is also denounced by him in terms,4 which show that, under Chancellors taken from the professors of the Common Law merely, the modern system of Equitable Jurisprudence (whether for good or for ill others will judge) would never have been reared, at least in the Court of Chancery.
But to resume. In the reign of Henry IV. the Commons renewed their petitions against the Court of Chancery, particularly complaining that the court interfered with matters that were remediable at law;1 and in the fourth year of this king, as before noticed, a statute was passed declaring that judgments given in the King’s Court should not be reversed, “adnihilentur,” excepting by attaint, or for error;2 not, however, expressly referring to the Court of Chancery, nor, in terms, touching the jurisdiction exercised by that court, which did not annul, but deprived the party of the fruits of his judgment.
No bills addressed to the Chancellor in this reign have been found; few in the reign of Henry V., though uses and trusts had then become very general: now, however, the bills began to be in English.3
In the reign of Henry V. the Commons repeated their remonstrances against the obnoxious subpœna, but without effect.4 However, it was admitted by the Commons in the most angry of their petitions, that there were some cases in respect of which no remedy, or at least no effectual remedy could be obtained, by the ordinary course of law, and over which the Court of Chancery might justifiably exercise jurisdiction.5 Nor was this altogether denied by the judges of the courts of Common Law.1 The Council still exercised an extraordinary jurisdiction concurrently with, but distinct from, the Court of Chancery.2 Applications were also still made to Parliament, in cases where justice was obstructed in the courts of Common Law, or where those courts had not the means of affording relief. There are some instances of such applications on the subject of Trusts.3
In the reign of Henry VI., this court was in full operation, and large additional powers of coercion were conferred on the Chancellor in particular cases.4 The writs in the reign of Henry VI. refer to the proceedings as being in Cancellaria, without reference to the Council.5 From this time the bills appear to have been filed.6
In the reign of Edward IV. proceedings by bill and subpœna became the daily practice of the Court of Chancery;7 and from that time, though the judges continued to dispute the Chancellor’s authority to interfere with the proceedings of the Common Law Courts,8 we do not trace any further opposition on the part of the Commons to the authority of the Court of Chancery;9 and down to the reign of Charles II. the court continued to be substantially the same as it was in the reign of Edward IV.
In the reigns of Henry V. and VI. various statutes were passed, which expressly delegated to the Chancellor, in particular cases, some branches of the jurisdiction which had been claimed or exercised both by the Council and by Parliament in aid of the Common Law, to be exercised with the advice of the Chief Justice of either bench, or of the Chief Baron of the Court of Exchequer.1
The Star Chamber—The Court of Requests—Special Commissions of Oyer and Terminer—The Equity Court of the Exchequer.
Having traced the extraordinary jurisdiction of the Court of Chancery as connected with or as forming part of the Council, until the time of its establishment as a separate and independent jurisdiction, it may be well cursorily to notice two other branches or offsets from the Council, which also formed themselves into distinct tribunals, namely, the Star Chamber and Court of Requests.
It has already been noticed that in the reign of Edward III. the Council were in the habit of sitting in what was called the Starred Chamber. After it became the habit to depute to the Chancellor a portion of the business of the Council, namely, that which related to civil rights, the Council usually sitting in the Star Chamber entertained jurisdiction over those cases which were not sent to the Court of Chancery. At length the Court of Star Chamber was established. This Court, like the Court of Chancery, derived its origin from the Royal prerogative.2 The Court of Star Chamber by continued usage, and as ultimately regulated by the stat. 3 (Clarendon says 10th) Henry VII. c. 1, and 21 Henry VIII. c. 30, had jurisdiction in cases of oppression and other exorbitant offences of great men, (where, as Lord Coke observes, inferior judges and jurors, though they should not, would in respect of the greatness of the offenders be afraid to offend,) bribery, extortion, maintenance, champerty, embracery, forgery, perjury, dispensers of false and dangerous rumors, news, and scandalous libeling; false and partial misdemeanors of sheriffs and bailiffs of liberties; frauds, deceits,1 great and horrible riots, routs, and unlawful assemblies, single combats, challenges, duels, and other heinous and extraordinary offences and misdemeanors;2 leaving ordinary offences to the courts of common law.3 Thus a jurisdiction founded on the inefficiency of the ordinary tribunals to do complete justice in criminal matters, and other offences of an extraordinary and dangerous character, arose almost concurrently with the establishment of the Court of Chancery and entirely analogous in principle and procedure to that Court, but confining its jurisdiction to cases partaking of a criminal character;4 “and whilst it was gravely and moderately governed,” says Clarendon, “it was an excellent expedient to preserve the dignity of the king and the peace and security of the kingdom.”
The Court of Chancery sometimes, besides itself granting civil relief, made use of the Court of Star Chamber to subject the parties to punishment where gross frauds had been perpetrated. Thus, we find an order of Lord Keeper Bacon to this effect, “Because the Court disliketh the said evil practices and fraud, and thinketh them not meet to be passed over without further examination,” it is ordered that the plaintiff and one Frankland, shall at their equal charges, exhibit a bill in the Court of Star Chamber, against Fulwood the defendant, “touching his indirect, lewd, and fraudulent practices.”5
This Court, however, having become odious by the tyrannical exercise of its powers, it met with a different fate to that of the Court of Chancery, having been abolished by the statute 16 Car. I. c. 10.6
The Court of Requests
It has generally been supposed that the Court of Requests, which was a minor Court of Equity, had its origin from the writ or proclamation of the 22d of Edward III., before referred to;1 but the more probable origin is an order of the 13th Rich. II., for regulating the Council, by which the Lords were to meet between eight and nine o’clock, and the bills of the people of lesser charge were to be examined and dispatched before the Keeper of the Privy Seal, and such of the Council as should be present for the time being. From this time, at least, the Lord Privy Seal held a Court of Equity called the Court of Requests. The course of procedure was the same as in the Court of Chancery. The bills of complaint filed there, ordinarily contained the one or the other of these two suggestions, namely, that the plaintiff was a very poor man not able to sue at common law, or that he was one of the King’s servants or ordinarily attendant on his person;—it was the poor man’s Court of Equity.2 The Lord Privy Seal, and the Masters of the Requests, who exercised similar functions to those of the Masters in Chancery, presided. This court continued to be resorted to down to the 41st of Eliz. when it ceased to exist, having been virtually abolished by a decision of the Court of Queen’s Bench.3 Greater facilities were from that time given to the poor for enabling them to proceed in the superior courts in formâ pauperis, which will be noticed hereafter in treating of the course of procedure in the Court of Chancery.
Special Commissioners of Oyer and Terminer
The King was frequently applied to, as has been before observed, to grant a more certain and speedy remedy in criminal cases than could be obtained by the ordinary proceedings of the Common Law Courts. In answer to these applications, Special Commissioners of Oyer and Terminer were frequently awarded by the Council, to whom such applications were usually referred, directed to persons specially named, who usually, as it would appear, were not justices of the one bench or the other.1
Poverty or the number of the applicant’s enemies, and the inefficiency of the Common Law, were also the ordinary grounds of the applications for this extraordinary exercise of the Prerogative. The great abuses attending these commissions, caused them to be confined to “great and horrible trespasses;”2 and even these became less frequent as the remedial jurisdiction exercised by the Council in its various branches, especially in the Star Chamber, became more fully developed.3
Courts of Equity of the Exchequer, Counties Palatine and of Lords and Ladies
Not only the Court of Exchequer,4 whose functions were in a peculiar manner connected with the Royal authority, but the Counties Palatine of Chester, Lancaster and Durham, the Court of Great Session in Wales, the Universities, the City of London, the Cinque Ports, and other places, silently assumed extraordinary jurisdiction similar to that which was exercised in the Court of Chancery; some of them yet subsist.5
The equitable jurisdiction of the Exchequer has lately been transferred to the Court of Chancery.
In the reign of Rich. I. the Earl of Moreton, a nobleman of vast possessions, had his Chancellor;6 and after this time many Lords and Ladies affected to establish in their several Honors a Court of Chancery, with similar powers to those exercised by the High Court, but they were extinguished by the Legislature.7
THE ECCLESIASTICAL COURTS AND THEIR JURISDICTION1
THE Ecclesiastical Courts have a longer history than the Courts of Common Law and Equity. At all periods in their long history prevailing theories as to the relations between Church and State have influenced both the law which they administer, and their position with regard to the English judicial system. If therefore we are to understand the arrangement of the Ecclesiastical Courts at different periods, and the sphere of jurisdiction assigned to them, it will be necessary to say something by way of introduction upon these matters. We can then proceed to treat of the courts themselves and their jurisdiction.
(i) The law administered by the Ecclesiastical Courts, and their relation to the English judicial system.
This subject falls naturally and chronologically into two divisions (a) the Pre-reformation, and (b) the Post-reformation period.
(a) The Pre-reformation period.
Throughout this period political and religious ideas were dominated by the theory of the survival of the Holy Roman Empire. It may be that in the common affairs of life, in the smaller associations in which men were grouped in a feudal state, this theory played little direct part. But in the law of the church, as administered in the Ecclesiastical Courts throughout Latin Christendom, it was all important. The Roman Empire had not perished. The Roman Emperor, represented by the emperor of Germany, still ruled the world in matters temporal; the Pope in matters spiritual. “The Pope, as God’s vicar in matters spiritual, is to lead men to eternal life; the Emperor, as vicar in matters temporal, must so control them in their dealings with one another that they may be able to pursue undisturbed the spiritual life, and thereby attain the same supreme and common end of everlasting happiness. In the view of this object his chief duty is to maintain peace in the world, while towards the Church his position is that of Advocate, a title borrowed from the practice adopted by churches and monasteries of choosing some powerful baron to protect their lands and lead their tenants in war. The functions of Advocacy are twofold: at home to make the Christian people obedient to the priesthood, and to execute their decrees upon heretics and sinners; abroad to propagate the faith among the heathen, not sparing to use carnal weapons. Thus the Emperor answers in every point to his anti-type the pope, his power being yet of a lower rank, created on the analogy of the papal, as the papal itself had been modelled after the elder Empire.”1 To Pope and Emperor the other rulers of the earth were subordinate.
On its temporal side this theory tended to become more and more untrue with the growth, during the Middle Ages, of the territorial state. But the influence of the old theory can be seen in the preamble of Henry VIII.’s statute which asserts that “by dyvers sundrie olde autentike histories and cronicles it is manifestly declared and expressed that this realme of England is an impire, and so hath ben accepted in the worlde, governed by oon supreme heede and King, having the dignitie and roiall estate of the imperiall crowne of the same.”2
The changing condition of Europe did not so obviously affect the dominion claimed by the Pope in matters spiritual. The claim of the Pope to be the head of a universal church was, in the Middle Ages, far less a mere theory than the parallel claim of the Emperor to be the head of a universal state. The Pope wielded a real authority over the faithful; and, of the fate of those who sought to cut themselves off from the communion of the faithful, the Albigenses and Southern France could tell. At the beginning of the 14th century Boniface VIII. could claim that the Pope held the chief place, that the Emperor was but his feudatory.1
The dominion of the papacy had been consolidated during the 11th and 12th centuries by a series of able popes—preeminent among whom were Gregory VII. (1073-1080) and Innocent III. (1198-1216). It was maintained by the rules of the Canon Law which was accepted as the “jus commune” of the church throughout Europe. It was from the 11th to the 13th centuries—during the most splendid period of the papacy—that the greater part of the Corpus Juris Canonici was compiled.
Roman civil law had never wholly perished. But the revival of interest in its study begins in the early years of the 12th century, when Inerius began to lecture upon the Digest at Bologna. “Roman law was living law. Its claim to live and to rule was intimately connected with the continuity of the empire.”2 A famous school of law was founded. The systematic study of the civil law produced a desire to reduce to a similar system the scattered rules of the canon law. Gratian, a monk of Bologna (1139-1142), gathered them up into a systematic treatise.3 The nature of his work is well illustrated by the name applied to it when it first appeared. It was called the “Concordia Discordantium Canonum.” Later it was known as the Decretum Gratiani. Henceforth the Canon Law stood side by side with the Civil Law. The University of Bologna possessed two faculties of law—the civil and the canon. The students were decretistæ or legistæ.4 There were doctores decretorum, doctores legum, or doctores utriusque juris.
The Corpus Juris Canonici is made up of the following parts:—(1) The Decretum Gratiani. This comprehended all the papal legislation down to the year 1139. The activity of papal legislation1 soon rendered a fresh compilation necessary. Several private collections were made. The collection made by Bishop Bernard of Pavia in five books is noteworthy as having supplied the method of arrangement of later portions of the Corpus Juris.2 (2) The Decretals of Gregory IX. (1234). This was composed of the decisions of the pope upon matters referred to him from all parts of Europe. (3) The Liber Sextus of Boniface VIII. (1298). As its name would imply it is intended as a supplement to Gregory’s five books. It contains not decisions, but abstract rules of law, which are no doubt extracted from the decisions. (4) The Clementinæ (1313). (5) The Extravagantes, i. e. the more important of later decretals. These were never formally promulgated as a code like the preceding four branches of the law.3 Professors of the canon law added many explanatory notes (glosses) to the text. Generally one gloss was accepted as the most important and was called the Glossa Ordinaria.4
The canon law was received in England, as in other parts of Europe, as the jus commune of the church. The English provincial constitutions formed but a small part of the law of the church. “They contain little that is new, and are only a brief appendix to the common law of the universal church.”5 William Lyndwood—the official principal of the Archbishop of Canterbury—wrote a commentary upon them in 1430, which has always been reckoned a leading authority in ecclesiastical law.1 He clearly regards them as a supplement merely to the jus commune of the church. The decretals of the pope are the edicts of a sovereign legislator whose authority it is heresy to question. Provincial constitutions are valid only in so far as they interpret or enforce these papal decrees.2 The test exacted of persons suspected of Lollardry was subscription to the Decretum, the Decretals, the Sext, and the Clementines.3
The canon law recognised the pope not only as the supreme legislator, but also as supreme judge of the Church, possessed not merely of appellate, but also of original jurisdiction. He could be called in by a litigant at any stage in the suit; and not merely the judgments he pronounced, but also any dicta he might be inclined to express, had the force of law.4 He could delegate his powers to legates a latere, who, by virtue of their commission, superseded all the ordinary courts. “The metropolitan must plead as plaintiff before the suffragan, the superior before the inferior, if the princeps will have it so.”5 In fact the Pope could, and did to a large extent, make himself the “Universal Ordinary.” He has, says Bracton,6 ordinary jurisdiction over all in things spiritual, as the king has ordinary jurisdiction over all in his realm in things temporal. It is clear from books of practice on the canon law that whenever any considerable sum was at stake in an action the usual course was to “impetrate” an original writ from Rome nominating papal delegates to hear the case.7 In the 13th century the number of English cases which came before the pope was larger than that from any other country in Europe.8 The methods by which, as we shall see, the Archbishop of Canterbury has attracted much of the business of the ordinary courts to his provincial courts, have been suggested by the practice of the Roman Curia.1
Such, then, was the system of the canon law, in force in England as in all the other countries of Western Europe. But the church and its law must necessarily exercise its activity within a state; and, whatever extreme churchmen might contend for, it was impossible that all ecclesiastical persons should live exempt from all temporal jurisdiction. Moreover, the canon law attempted to exercise a wide control over the laymen pro salute animæ. As the state grew into conscious life it was inevitable that occasions for disputes between the temporal and spiritual powers should arise. Two systems of courts exercising two systems of law cannot coexist in one state without disputes as to the limits of their respective authority. Within a certain sphere each was supreme. But there was always a debatable land over which neither party was completely sovereign.
The precocious growth of the state in England brought this necessary antagonism between the claims of Church and State into prominence at a comparatively early period. The controversy about investitures was settled in England in 1106. It was not till 1122 that a smilar controversy in Germany was ended by a similar compromise. In the royal writ of prohibition the royal courts had a weapon of precision which in the end secured for them the jurisdiction which they claimed. All questions touching lay fee, all questions concerning advowsons, all criminal cases, save cases of felony where a clerk was the culprit, all cases of contract and tort, were gradually drawn into the royal courts. They were drawn into the royal courts in spite of the protests of churchmen. Though churchmen sitting as royal justices helped to secure the victory of the common law, it is clear that the canon law and the churchmen qua churchmen must have regarded them as encroachments.2 Similarly, statutes, like the statutes of Provisors and the two statutes of Præmunire, attempted to check, in the interests of patrons and of the state, the abuses of papal patronage. The aim of the statute of Provisors1 was to protect spiritual patrons against the pope. If the pope attempted to appoint, the right of presentation lapsed to the crown. The bishops took no public part in the enactment of this statute. The first statute of Præmunire2 punished those who drew “any out of the Realm in Plea whereof the cognisance pertaineth to the king’s court, or of things whereof judgments be given in the king’s court, or which do sue in any other court to defeat or impeach the judgment given in the king’s court.” The statute plainly says nothing of cases over which the king’s court never claimed jurisdiction. The second statute of Præmunire3 was aimed at those who “purchased or pursued, in the Court of Rome or elsewhere,” any “Translations, processes, and sentences of Excommunications, Bulls, Instruments, or any other things whatsoever which touch the king, against him, his crown, and his regality,”4 whereby the king’s court was hindered in its jurisdiction over pleas of presentment. The guarded answer returned by the bishops, in reply to the question addressed to them as to the papal power in this respect, shows an obvious desire to conciliate the Parliament without committing themselves to any statement contrary to canon law.5 It is clear that such legislation is as “antiecclesiastical” as the issue of writs of prohibition. To argue from such legislation, or from the issue of such writs, that the Ecclesiastical Courts imagined that they were independent of the Pope or the canon law, would be about as reasonable, as to argue from the Grand Assize, and the possessory assizes that the feudal courts admitted the royal claim to jurisdiction over all cases of ownership or possession of freehold.
The state successfully asserted its rights to the jurisdiction which it claimed. But we can see from the benefit of clergy,1 and from the statute of Circumspecte Agatis,2 and the Articuli Cleri3 that it was willing to allow a large sphere to the Ecclesiastical Courts and the canon law. In one respect, indeed, it allowed to the rival jurisdiction a larger authority than it possessed in any other country in Europe. It abandoned to it absolute jurisdiction over testamentary and intestate succession to personal property.4 Where the jurisdiction of the Ecclesiastical Courts was admitted, the state automatically enforced their sentences of excommunication by the imprisonment of the excommunicate.5
Thus matters stood before the Reformation. The jus commune of the Western Church was administered in the Ecclesiastical Courts. The common law was administered in the royal courts. The royal courts claimed exclusive jurisdiction in certain matters. Other matters they were content to leave to the Ecclesiastical Courts. Certain rights allowed to the pope by the canon law had been curtailed by English statutes, which the royal courts would enforce if called upon to do so. Within their respective limits the canon law enforced by the Ecclesiastical Courts, and the common law enforced by the royal courts were separate systems of law, differing in many of their rules, deriving their binding force from different sovereigns.
The claims made by these rival systems produced much friction. But the prevailing theories as to the relations between church and state made it impossible for either of these rival powers to do without the other. Papal dispensations from the rules of the canon law acknowledged the power of the pope; but they enabled the crown to use the revenues of ecclesiastical benefices for the maintenance of his civil service. Diplomatic reasons demanded some kind of arrangement; and at the latter end of the Middle Ages an arrangement was arrived at on a profit-sharing basis. Such an arrangement produced peace; but it was a peace which made reform impossible. Abuses were allowed to spring up unchecked until an entirely new theory as to the relations between Church and State materially altered both the law administered in the Ecclesiastical Courts, and their relation to the English judicial system.
(b) The Post-Reformation period.
At the beginning of the 16th century many circumstances combined to show that the old theories as to the relations between Church and State were breaking down. All over Europe centralized territorial states were taking the place of the loosely knit feudal monarchies of the Middle Ages. The wealth and corruption of the church, and more particularly the abuses of the Ecclesiastical Courts, were exciting extreme unpopularity. The doctrines of the church, also, were beginning to be assailed with the more effective weapons which the New Learning had provided. The better class of ecclesiastical statesmen saw clearly that some reform was necessary.
England, like the rest of Europe, felt these influences. Cases like that of Hun1 bore witness to the unpopularity of ecclesiastics, their courts, and officials. We can see from the case of Standish2 that Henry VIII., backed by popular opinion, was minded to assert a larger control over ecclesiastics. Wolsey, who was perhaps the most far-seeing statesman of the day, was already taking measures to reform the corruption of the church. But neither Henry nor England had any desire to separate from the general system of the Western church. There were but few adherents to Protestant doctrine. If the pope would consent to Henry’s demands for an increased control over the clergy; if the church had been reformed as Wolsey desired, there appeared to be no necessity for a break with Rome. The Anglican church might have had a history very similar to that of the Gallican church.1
The divorce question made this solution impossible. The pope coerced by Charles V. could not grant the divorce. A break with Rome was therefore necessary. Although the break was accomplished with as little external change as possible, it necessarily involved an altogether new view as to the relations between Church and State.
The tentative way in which the separation was carried out shows how unwilling Henry was to break with the past. The attitude of the pope, however, rendered separation inevitable. In the preambles to Henry’s statutes we may see the gradual elaboration of the main characteristic of the changed relations of Church and State—the theory of the Royal Supremacy. The dual control over things temporal and things spiritual is to end. The Crown is to be supreme over all persons and causes. The Canon Law of the Western Church is to give place to the “King’s Ecclesiastical Law of the Church of England.”2
The Reformation Parliament met in 1529 after the fall of Wolsey. The first acts of that Parliament, carried in spite of the opposition of the clergy, were directed against certain abuses in the church and its courts.3 The clergy also (1531) recognised the royal Supremacy “so far as the law of Christ allows.”4 In 1532 it was so clear, from the unsatisfactory progress of the divorce, that there would be legislation aimed more directly at Rome, that Warham, the archbishop of Canterbury, drew up a formal protest against all statutes to be passed in the ensuing session, which should prejudice the ecclesiastical or papal power.5 An act was passed against the payment of Annates. But the act is still respectful to “our Holy Father the Pope”; who was still allowed to charge certain fees for the consecration of bishops; and the king was given a discretion as to its enforcement.1 In 1533 the Statute of Appeals was the necessary consequence of the king’s marriage and of the divorce proceedings taken before Cranmer.2 In the preamble to that statute the new relations between Church and State were sketched by the king himself. We have in it the first clear statement of the new Anglican position. “By divers sundry old authentic histories and chronicles it is manifestly declared . . . that this realm of England is an empire . . . governed by one supreme head and king . . . unto whom a body politic, compact of all sorts and degrees of people, divided in terms and by names of spirituality and temporality be bounden and owe to bear next to God a natural and humble obedience; he being also institute . . . with plenary whole and entire power, pre-eminence, authority, prerogative and jurisdiction to render and yield justice and final determination to all manner of folk, residents, or subjects within this his realm in all causes . . . happening to occur . . . within the limits thereof without restraint or provocation to any foreign princes or potentates of the world. The body spiritual whereof having power when any cause of the law divine happened to come in question or of spiritual learning, it was declared . . . by that part of the said body politic called the spirituality (now being usually called the English Church) which . . . is sufficient and meet of itself, without the intermeddling of any exterior person . . . to declare and determine all such doubts and to administer all such offices and duties as to their rooms spiritual doth appertain . . . : and the laws temporal for trial of property of lands and goods for the conservation of the people of this realm in unity and peace . . . was and yet is administered . . . by sundry judges and administers of the other part of the said body politic called the temporality, and both their authorities and jurisdictions do conjoin together in the due administration of justice the one to help the other: and . . . the king his most noble progenitors and the nobility and commons of this said realm at divers and sundry Parliaments as well in the time of king Edward I., Edward III., Richard II., Henry IV., and other noble kings of this realm made sundry . . . laws . . . for the entire and sure conservation of the prerogatives, liberties, and pre-eminences of the said imperial crown of this realm, and of the jurisdictions Spiritual and Temporal of the same, to keep it from the annoyance as well of the see of Rome as from the authority of other foreign potentates.”1 The king is supreme in his realm. His courts, spiritual and temporal, can decide for themselves all cases which occur within the realm. This has always been the law. The anti-ecclesiastical statutes of the Middle Ages are vouched to support the historical theory put forward by the state. When the state’s theory has been accepted by the church, it will be an appropriate statutory foundation for the modern ecclesiastical claims of the church, now part of the state, and subject to the royal supremacy.
Later statutes of Henry’s reign further amplified and defined the supremacy which he claimed. The Act of Supremacy recognised the king as “the only Supreme Head in earth of the Church of England,”2 having full power to correct all “errors, heresies, abuses, offences, contempts, and enormities” which by any manner of spiritual authority ought to be reformed; and the oath taken in accordance with this act denies to the pope any other authority than that of bishop of Rome.3 It was in accordance with this act that Henry gave an extensive commission to Cromwell to act as his Vicar-General. It is clear that Henry is beginning to regard himself as possessing all that “usurped” authority which once belonged to the pope. This is shown by the act of 15454 which declares that the king has power to exercise all ecclesiastical jurisdiction, “and that the archbishops, bishops, archdeacons, etc., have no manner of jurisdiction ecclesiastical but by, under, and from the king.” In accordance with this theory the bishops and archbishops took out commissions to exercise their ordinary powers and authorities.1
Most of the other acts of Henry’s reign are the logical consequence of these changed relations between church and state. Annates and all other payments to Rome were definitely cut off.2 In the act for the submission of the clergy3 it was provided that no new canons should be enacted, except in convocations summoned by the king’s writ, with license to assemble and make canons. The existing canons were to be revised by a committee of 32, of whom 16 were chosen from layment and 16 from ecclesiastics. Further provision for this revision of the canon law was made by other statutes of this reign; and it was enacted that, in the meantime, those which did not conflict with God’s law and the king’s should be still in force.4 No such revision was in fact made in Henry VIII.’s reign. But the teaching of the canon law was in every way discouraged at the universities. In place of lectures on canon law lectures on civil law were established. Degrees soon cease to be taken in canon law as a separate faculty.5 The act of 1545 allowed the doctors of the civil law, though laymen and married, to exercise ecclesiastical jurisdiction. This discouragement of the canon law was a necessary consequence of Henry’s settlement. It is clear that the canon law as taught in the Middle Ages would have been in entire conflict with the new order.
Thus it may be said that the great work of Henry’s reign was to effect an entire change in the relations between church and state. The church ceased to form part of the Western church in communion with Rome. The law of the church ceased to be the canon law of Rome. But beyond that there was little change. The Act of the Six Articles reaffirmed most of the leading doctrines of the Roman Catholic Church.1 The existing organization of the Ecclesiastical Courts was maintained. The king had put himself in place of the pope. The king’s ecclesiastical law administered by civilians was put in place of the canon law of Rome. “The Reformation,” says Archdeacon Hale,2 “if under that general term we may include the whole series of events by which this country was freed from the authority of the Bishop of Rome, was in its commencement nothing more than a legal and political Reformation; a renunciation of the intrusive power of the Pope over the King’s subjects, and an assertion of the competency of the Anglican Church to decide by her own tribunals all questions relative to Divine Law and to spiritual learning. A Reformation in religion soon followed; but it was a providential and not a necessary consequence.”
Little need be said of the reigns of Edward VI. and Mary.3 They are episodes which added little of permanent importance to Henry’s settlement. Edward VI. applied the doctrine of the royal supremacy in its extreme form. Henry had left the authority of the bishops unimpaired. Edward in many cases excluded their authority. He directly appointed them. Process in the Ecclesiastical Courts ran in his name. Only those who had special authority from him could exercise jurisdiction. Frequent commissions issued by him, in virtue of his supremacy, in many cases superseded the authority of the ordinary courts. As we might expect, their jurisdiction fell into contempt.4 The reform in doctrine and the reform of the canon law was hastily pressed forward. Mary on the other hand went to the opposite extreme. The old state of things as it existed in 1529 was as far as possible restored.
Elizabeth’s reign is marked by a recurrence to Henry VIII.’s principles, both as regards the relation between church and state, and as regards the position and jurisdiction of the Ecclesiastical Courts. “The policy of Elizabeth and her ecclesiastical settlement is historically linked on directly to that of her father.”1 The church was given a more definitely Protestant character, but with as little change of the older order as was possible. In the Acts of Supremacy and Uniformity the relations between church and state are permanently and definitely ascertained.
The Act of Supremacy2 annexed to the “imperial crown of this realm” all “such jurisdictions, privileges, superiorities and pre-eminences spiritual and ecclesiastical, as by any spiritual or ecclesiastical power or authority hath heretofore been or may lawfully be exercised or used for the visitation of the ecclesiastical state, and persons, and for reformation, order and correction of the same and of all manner of errors, heresies and schisms abuses offences contempts and enormities.” The supremacy was of wide and somewhat indefinite extent. But it did not go the whole length of Henry VIII.’s later statutes or of Edward VI.’s statutes.3 The crown made no claim to “the ministering either of God’s Word or of the Sacraments.”4 The older organization of the Ecclesiastical Courts was maintained. The crown simply claimed to be supreme over all causes and persons to the exclusion of any foreign power.
With a view to the better maintenance of the Supremacy, and the ecclesiastical settlement therein involved, the crown was empowered to entrust its exercise to commissioners appointed under the Great Seal.5 In thus exercising the royal jurisdiction by commission precedents of Edward VI. and Mary’s reign were followed.6 The power was exercised when the Court of High Commission was created in 1559.
Some attempts were made to pursue the plan of revising the canon law. But though the revision had been completed by Cranmer and Peter Martyr, it never obtained legislative sanction.7 The canon law, so far as it was in harmony with the new settlement, still continued to be administered by the civilians, who combined their practice in the Ecclesiastical Courts with their practice in the court of Admiralty.1 As the exercise of the jurisdiction of the court of Admiralty was controlled by the writ of prohibition, so (in spite of all protests)2 was the exercise of the jurisdiction of the Ecclesiastical Courts.
Administered in this way, the law of the church, like the maritime law, has ceased to possess an international character.3 It has become national like the church itself. “The ecclesiastical law of England,” said Lord Blackburn,4 “is not a foreign law. It is a part of the general law of England—of the common law—in that wider sense which embraces all the ancient and approved customs of England which form law, including not only that law administered in the courts of Queen’s Bench, Common Pleas, and Exchequer, to which the term common law is in a narrower sense confined, but also that law administered in Chancery and commonly called Equity, and also that law administered in the courts Ecclesiastical, that last law consisting of such canons and constitutions ecclesiastical as have been allowed by general consent and custom within the realm, and form . . . the king’s ecclesiastical law.”
But though Henry’s settlement as to the royal supremacy, as to the courts, and as to the ecclesiastical law was followed in its main lines, the doctrines of the church were given a more definitely Protestant character. The matters which the Court of High Commission could declare to be heresy were defined.1 Statutory force was given by the Act of Uniformity, to the second book of common prayer of Edward VI.’s reign, with certain alterations and additions.2 Not only the Ecclesiastical Courts, but also the justices of oyer and terminer and of assize, were empowered to see to the observance of the Act.3
This settlement has been fully accepted both by the judges and the bishops. In Caudrey’s Case4 “It was resolved that the said Act (the Act of Supremacy) . . . concerning ecclesiastical jurisdiction was not a statute introductory of a new law, but declaratory of the old.”5 The relations between church and state were explained almost in the words of the preamble of Henry VIII.’s statute of Appeals; and the historical argument, as to the continuous independence of the church, hinted at in that preamble, was expanded and improved. Though the Canon law had been laid under contribution it never was the law of the Church of England. “As the Romans fetching divers laws from Athens, yet being approved and allowed by the state there, called them notwithstanding jus civile Romanorum: and as the Normans borrowing all or most of their laws from England, yet baptized them by the name of the laws and customs of Normandy: so, albeit the kings of England derived their ecclesiastical laws from others, yet so many as were proved, approved, and allowed here by and with a general consent, are aptly and rightly called the King’s Ecclesiastical Laws of England.”1 In 1851 the two archbishops and the twenty bishops of England declared the “undoubted identity of the church before and after the Reformation”; and that though severed from Rome the church had in no respect severed her connexion “with the ancient Catholic Church.”2
Neither the legal nor the doctrinal theory should blind us to the fact that a very real change had been made at the Reformation. The relations between church and state, and the position of the Ecclesiastical Courts were fundamentally altered. The church was brought within the state. It was subjected to the power of the crown. That has involved in the course of time other consequential changes. Having been brought within the state, its position has been modified with changed ideas as to the balance of powers within the state, and as to the limits of state control. The court of High Commission wielded the royal supremacy, when the royal supremacy over the church conferred powers as large and indefinite as the royal prerogative in the state. That court disappeared, with the court of Star Chamber, when so large a prerogative was found incompatible with liberty.3 Similarly the royal supremacy conferred a wide dispensing power. That too was limited at the Revolution when it was found to put too large a discretionary power in the hands of the crown.1 In later times the proper sphere of ecclesiastical jurisdiction has been curtailed. Membership of the church is not considered a necessary qualification for full rights in the state. The members of other religious communities have been admitted to share them. The jurisdiction of the Ecclesiastical Courts has necessarily been weakened by the disappearance of the idea that it is the duty of the state church to use coercive measures to secure, pro salute animæ, the morality of all the members of the state. On the other hand later statutes have provided new courts or new machinery for the more effective discipline of the clergy in communion with the church.2
In this manner the Tudor settlement, without sacrificing what was valuable in the institutions and the doctrines of the past, has founded a church well fitted to be an English State Church, because, like the constitution of the English State, it is capable of adaptation to altered circumstances without a palpable breach of continuity. In no respect did the Tudors more clearly show their capacity to understand and to represent their people. In the age of Elizabeth, when religious feeling ran high, it often appeared to the more enthusiastic that her establishment was neither Protestant nor Catholic. But however illogical it appeared to the fanatic, it appealed to the more moderate. Being successful it did not long want defenders; and it has secured defenders so skilful that they have made love for the Church an essential factor in English political life.
The lawyer has deduced from the uncertain utterances of Anglo-Saxon history, and from the anti-ecclesiastical legislation of the Middle Ages, the existence, from the earliest times, of an independent national church. The theologian has conferred upon it an unique Catholicity. The benches of judges and bishops have enunciated the same doctrines in language only technically different. In fact the Reformation did in a similar manner for the church, what the Revolution did for the state. Macaulay says of the Revolution, “the change seems small. Not a single flower of the crown was touched. Not a single new right was given to the people. The whole English law, substantive and adjective, was in the judgment of all the greatest lawyers, of Holt and Treby, of Maynard and Somers, almost exactly the same after the Revolution as before it. Some controverted points had been decided according to the sense of the best jurists; and there had been a slight deviation from the ordinary course of succession. This was all; and this was enough.” The same sentiments, applied to the church, are both good law and sound doctrine. But if we look a little beyond the immediate consequences of either the Reformation or the Revolution we can see that the changes involved are very far reaching. The result of the Revolution was the transference of control over the executive from the prerogative to Parliament through the growth of the cabinet system. The result of the Reformation was the abolition of the dual control of church and state, the transference to the state of complete control over the church, and the substitution for the canon law of the King’s Ecclesiastical Law. The crown’s prerogative still retains traces of its origin in a feudal society; and it could be described by Blackstone in terms which might have commanded the approval of a Stuart king, or the censure of a Stuart Parliament. The Church still retains her courts with some remnants of their ancient jurisdiction, and in her formularies some traces of a Catholicism older than that of Rome.
(ii) The Ecclesiastical Courts.
The courts which have administered the ecclesiastical law at different periods may be divided into the following groups:—
(1) The ordinary courts of the Diocese, the Peculiar and the Province.
(2) The High Court of Delegates.
(3) The Court of High Commission.
(4) The Statutory courts of the 19th century.
(1) The ordinary courts of the Diocese, the Peculiar, and the Province.
(a) The Diocese.
The Bishop of each diocese held a Consistory Court for the diocese. From about the middle of the 12th century the Chancellor or “Official” of the bishop usually presided over this court. He was the ordinary judge competent, like the judge of the court of Admiralty, to exercise all the jurisdiction inherent in his principal, except in such cases as the bishop might expressly reserve for his own hearing. In time he comes to be the permanent judge of the court, and retains office after the death, removal, or beyond the pleasure of the bishop by whom he was appointed.1 But the bishop has never lost the right of withdrawing cases from his cognisance, if he wishes to hear them himself.2 Similarly, the bishop sometimes delegated jurisdiction over certain parts of his diocese to his “commissary.”3 There was an appeal from the Consistory Court to the Provincial Court of the archbishop.
Each archdeacon in the diocese held a court for his archdeaconry.4 The ordinance of William I., removing ecclesiastical pleas from the hundred court, mentions both the archdeacon and the bishop as persons who held pleas in the hundred court.5 In its origin the office of archdeacon was ministerial. He held a court as a deputy of the bishop, just as the steward held the manorial court as a deputy of his lord. “But the tendency of all such institutions is to create new jurisdictions, and, early in the 12th century, the English archdeacons possessed themselves of a customary jurisdiction.”6 It was possibly with a view to stop the encroachments of the archdeacon that the bishops adopted the plan of exercising their jurisdiction through officials. An appeal lay from the archdeacon’s court to the Consistory Court.1
(b) The Peculiar.
The tendency in all feudal states was to vest jurisdiction in any considerable landowner. This tendency was felt in the church as well as in the state. Just as in the state the jurisdiction of the ordinary communal courts was displaced by the franchise jurisdiction, so in the church the jurisdiction of the ordinary Diocesan courts was displaced by the jurisdiction of the Peculiar Courts. One cause for the growth of these Peculiar Courts was the conflict between the bishops and their chapters, which resulted in the apportionment of the land, and jurisdiction over the land, between the bishop and the chapter. Thus both the bishops and the deans of the chapters possessed Peculiar Courts. A second cause was the exemption of the greater abbeys from episcopal jurisdiction. A third cause was a similar exemption of the king’s chapels royal.2 The variety of these Peculiar Courts can be seen from the statement of the ecclesiastical commissioners of 1832,3 that “there are Peculiars of various descriptions in most Dioceses, and in some they are very numerous: Royal, Archiepiscopal, Episcopal, Decanal, Subdecanal, Prebendal, Rectorial, and Vicarial; and there are also some Manorial Courts.” Some of these Peculiars were wholly exempt from Episcopal, and even from Archiepiscopal control. But there was an appeal from them in earlier days to the Pope; in later days to the High Court of Delegates. Recent legislation has abolished most of these courts.1
(c) The Province.
The archbishops of Canterbury and York possessed various Provincial Courts.2 The Provincial Courts of the Archbishop of Canterbury were the following:—
(α) The court of the “Official Principal” of the archbishop (usually known as the Court of the Arches3 ) was at once the court of appeal from all the Diocesan Courts, and also a court of first instance in all ecclesiastical causes. The latter jurisdiction it attained by a series of encroachments (not without protest on the part of the bishops) analogous to the encroachments of the papal jurisdiction.4 This jurisdiction was restrained by the Statute of Citations,5 which put an end to the practice of citing persons outside their dioceses, except on appeals, on request of the bishop, or in case of the bishop’s negligence to hear the case. “As official principal the judge was held to possess all the judicial power of the archbishop . . . he issued process in his own name, and seems in all respects to represent the archbishop in his judicial character as completely as the chief justice represented the king.”6 Whether or no this deprived the archbishop of the right to sit and act personally in his court is not quite clear.7
(β) The Court of Audience. Just as the bishop did not deprive himself of all jurisdiction by delegation to an official or commissary, so the archbishop did not originally deprive himself of all jurisdiction by delegation to the official principal. He possessed a jurisdiction concurrent with that of the Court of the Arches, which was exercised in the Court of Audience. In later times this jurisdiction was exercised by the judge of the Court of Audience.1 At one time the archbishop may have exercised a considerable part of his jurisdiction in this court. It is mentioned in a 17th century account of the Ecclesiastical Courts; but it does not appear to have been revived as a separate court after the Restoration.2 It has now fallen into disuse. It must not be confused with the personal jurisdiction which the archbishop has over his suffragan bishops.3
(γ) The Prerogative Court.4 This court was sometimes presided over by the official principal, sometimes by a special commissary. It took cognisance of the testamentary jurisdiction belonging to the archbishop. It originally sat in the archbishop’s palace. It was moved, about the time of the Reformation, to Doctors’ Commons. The archbishops attracted to this court most of the testamentary business of the country. Whenever a man left bona notabilia in more than one diocese they claimed to oust the jurisdiction of the bishop.5 In spite of much opposition they made good their claims, which were recognised by the canons of 1604.6
(δ) The Court of Peculiars.7 This Court was held by the Dean of the Arches at Bow church for the thirteen London parishes, which were exempt from the diocesan jurisdiction of the bishop of London.
(ε) The Court of the Vicar-General in which the bishops of the province are confirmed.8
The provincial courts of the archbishop of York were the Chancery Court, the Prerogative Court, and the Court of Audience. These courts corresponded to the Court of the Arches, the Prerogative Court, and the Court of Audience of the archbishop of Canterbury.1
The Public Worship Regulation Act2 provides for the appointment by the archbishops of Canterbury and York of a single judge for their provincial courts. Such person is to hold the posts of the official principal of the Arches Court and the Chancery Court, and Master of the Faculties3 to the archbishop of Canterbury. The person appointed must be either a practising barrister of ten years’ standing, or a judge of one of the Superior Courts. He must also be a member of the Church of England. He holds office during good behaviour.
There is a question whether at any time Convocation ever acted as a court.4 There is some evidence to show that in the 14th and 15th centuries persons accused of heresy were brought before Convocation by the bishop who had cognisance over the case. But the members of Convocation did not vote on such trials. It was probably rather in the nature of a body of assessors to the archbishop than a court possessing jurisdiction. Coke, it is true, treats it as having once possessed jurisdiction in cases of heresy;5 and a majority of the judges in Whiston’s case6 seemed to think that it might still possess such jurisdiction. The statute 24 Henry VIII. c. 12 made the upper house a final court of appeal in ecclesiastical causes which concerned the king. Possibly the idea was to follow up the analogy between the temporal and spiritual jurisdictions, suggested in the preamble to the statute, by giving to it the position of the House of Lords. But this jurisdiction was, as we shall see, taken away by 25 Henry VIII. c. 19. It is clear that Convocation exercises no jurisdiction at the present day.
(2) The High Court of Delegates.
In the pre-Reformation period there was practically an unlimited right of appeal to the pope in all cases which fell within the jurisdiction of the Ecclesiastical Courts. This right was fettered to a slight degree by the rules made by the pope himself,1 and by the statutes of præmunire, in those cases in which the civil tribunals claimed exclusive jurisdiction. But where it existed the system of appeals and rehearings was, or might be, never ending. “Not only might a matter in dispute be treated over and over again, delegacy superseding delegacy, and appeal being interposed on every detail of proceeding one after another, but even after a definitive decision a question might be reopened and the most solemn decision be reversed on fresh examination. On this system of rehearing there was practically no limit, for, however solemn the sanction by which one pope bound himself and his successors, it was always possible for a new pope to permit the introduction of new evidence or a plea of exceptions. In this way the Roman Court remained a resource for ever open to litigants who were able to pay for its services, and the apostolic see avoided the imputation of claiming finality and infallibility for decisions which were not indisputable.”2
The Statute for the restraint of appeals3 prohibited all appeals to Rome, and provided that certain4 appeals should go from the archdeacon to the bishop, and (within 15 days) from the bishop to the courts of Arches or Audience, and from those courts to the archbishop himself. His decision was final except in cases touching the king. In that case there was an appeal from any of the Ecclesiastical Courts to the upper house of Convocation. This act was superseded by one passed in the following year which provided a new court of appeal for all ecclesiastical causes.5 The court created by this act becomes known as the High Court of Delegates. The act provided as follows:—“For lack of justice at or in any of the courts of the archbishops of this realm, or in any of the king’s dominions, it shall be lawful for the parties grieved to appeal to the King’s Majesty in the King’s court of Chancery; and that upon every such appeal a commission shall be directed under the Great Seal to such persons as shall be named by the King’s Highness his heirs and successors, like as in case of appeal from the Admiral’s court, to hear and definitively determine every such appeal, and the causes concerning the same. And that such judgment as the said commissioners shall make and decree . . . shall be good and effectual, and also definitive.”1 An appeal to the same body was provided from such peculiar jurisdictions as were exempt from episcopal or achiepiscopal control.2
A person desiring to appeal addressed a petition to the crown in Chancery, on which a commission of appeal issued appointing certain commissioners. If any of these commissioners died pending the appeal, if they were equally divided, or if, for any reason, it was desired to increase the strength of the court, a “commission of adjuncts” issued, adding certain persons to the court. It followed that the court was differently constituted for the hearing of each appeal.3
Henry VIII.’s statute declared the judgment of the Delegates to be final. But it was decided by the Elizabethan lawyears that the crown could, like the Pope, issue a commission of Review, to hear the whole case over again.4
The Court was not a court of first instance. It heard appeals from the provincial courts, and from the exempt peculiar jurisdictions. It did not control the court of High Commission, the abolition of which necessarily added to the number of cases heard before it.4
The crown had an absolute discretion as to the persons to be appointed. But, as the lawyers of Doctors’ Commons were the only lawyers acquainted with canon or civil law and procedure, certain of them were usually included in the commission. In some of the earlier cases bishops and judges were included. In the 18th century the bishops are rarely included, and are at length entirely excluded.5 It was stated in 1832 that in ordinary cases the delegates were three puisne judges and three civilians, though, in special cases, temporal peers, and other judges might be added.1
The Court was not satisfactory. It was a shifting body. No general rules of procedure could be established. It did not as a rule give reasons for its decisions. Its members were only paid a guinea a day; and consequently it was usually composed of the junior civilians. On them, the judges of the Common Law Courts, appointed as delegates, were obliged to rely for their law.2
In consequence of the dissatisfaction felt at the working of this tribunal the Ecclesiastical Commission of 1832, in a special report, recommended the transfer of its jurisdiction to the Privy Council. This recommendation was carried out by 2, 3 Will. IV. c. 92.3 The jurisdiction is now exercised by the Judicial Committee of the Privy Council created by 3, 4 Will. IV. c. 41.4
(3) The Court of High Commission.
The Court of High Commission was created, as we have seen, under powers given to the crown by the Act of Supremacy.5 The first commission was issued in 1559 to Parker, Grindal, and seventeen others. Their duties were to enforce the Acts of Supremacy and Uniformity, and to deal generally with ecclesiastical offences. They could conduct their enquiries with or without a jury. They could summon persons on suspicion. They could examine any one on oath.6 The later commissions are all formed on the model of the first. But they show a tendency to increase the jurisdiction of the commissioners. They were entrusted with the acts for the protection of the Establishment passed later in the reign. The qualifying clause, “according to the authority and power limited, given, and appointed by any laws or statutes of the realm,” which is inserted in the earlier commissions, was omitted in 1596. The authority given to the commissioners was not diminished under James I. and Charles I. In 1613 they were empowered to execute the Star Chamber rules as to the censorship of the press, and to hear complaints of wives against husbands. In the commission of 1625 it was provided that, during the session of Convocation, their powers should be exercised only by the bishops in Convocation. But this clause was dropped in the following reign.1
The Court entertained all important causes of doctrine and ritual. During its existence not many of these causes came before the Court of Delegates. But the causes which it most frequently entertained were proceedings in respect of immorality and misconduct of the clergy and laity, and proceedings in respect of recusancy and non-conformity. It did not supersede the ordinary Ecclesiastical Courts. It exercised a concurrent jurisdiction.2
The Commissioners could exercise their powers throughout England. But, as a rule, separate commissions were issued for the provinces of York and Canterbury, and sometimes for separate dioceses.3 Their powers were, as we have seen, wide and indefinite; and, except in the commissions of 1611, 1613, 1620, and 1625, their exercise was subject to no appeal.4
A strong court of this nature was necessary to support the Established Church against its Puritan and Catholic enemies.5 It was not at first unpopular. But, as Mr. Prothero points out, “The efficiency of the system . . . and the general results produced, depended mainly on the views and characters of the archbishops and their episcopal colleagues, on whom fell almost all the burden of carrying the commission into effect.”1 In the Stuart period, as we have seen, the state was divided into two camps.2 Just as the supporters of the Council, the Admiralty, and the court of Chancery, relying on the prerogative, opposed the common lawyers, who led the parliamentary opposition; so the supporters of the State Church relied upon the court, which exercised the Royal Supremacy, in their efforts against sectaries of all kinds. The Puritans necessarily found themselves in alliance with the common lawyers; and in this manner a religious element was imported into the political and legal controversy, which was destined to prove, for an interval, fatal to the constitution. Though Coke had, in Caudrey’s case,3 unduly magnified the Royal Supremacy, he found, in his Fourth Institute, many reasons for showing that the Court of High Commission had exceeded its powers. He denied it the right to fine and imprison.4 He commented upon the lengthy provisions of the more recent commissions and the denial of all right to appeal.5 He contended that it should deal only with important cases.6 The common lawyers followed his lead. The action of the court was fettered by writs of prohibition. Persons imprisoned by it were released by writs of habeas corpus.7 It was attacked by Parliament in 1610,8 and necessarily fell with the victory of the Parliamentary party in 1640.9 The same act abolished all the other Ecclesiastical Courts. The court of High Commission was not restored at the Restoration with the other Ecclesiastical Courts.10
(4) The Statutory Courts of the 19th century.
Certain statutes of the last century have provided new and more convenient procedure, and, in some cases, new courts, for the exercise both of criminal and civil jurisdiction.
The procedure of the Ecclesiastical Courts had become so dilatory and expensive that much difficulty had been found in bringing to justice clergy guilty of immoral conduct. The ecclesiastical commissioners reported in 1832 that, “some cases of a flagrant nature, which have occurred of late years, have attracted the attention of the Public to the corrective Discipline of the Church, as administered by the Ecclesiastical Courts, and have at the same time exhibited in a strong light the inconveniences which have attended the application of the ordinary process of the Courts to such suits; namely, an injurious delay in effecting the desired object of removing Ministers of immoral and scandalous lives from the administration of the sacred offices of the Church; and the large expense incurred in such suits.”1
The Church Discipline Act of 18402 was passed to deal with the cases of clerks “who may be charged with any offence against the laws ecclesiastical, or concerning whom there may exist scandal or evil report as having offended against the said laws.”3 It enacted that no criminal suits be instituted otherwise than according to procedure provided by the Act.4
In cases where a clerk is charged with an offence the bishop, may, on the application of a complainant, or of his own motion, issue a commission to five persons to inquire. They must report to the bishop whether there are prima facie grounds for instituting proceedings.5 With the consent of the party accused, the bishop may pronounce sentence without further proceedings.6 If he does not consent, articles are drawn up against the party accused.7 If he admits the truth of the articles the bishop (or his commissary specially appointed for that purpose) may pronounce sentence.8 If not, either the bishop assisted by three assessors may hear the case, or the bishop may send the case to be tried by the court of the Province.9 But the letters of request for this purpose must have been sent before the filing of the articles.10 An appeal is provided to the court of the Province and to the Privy Council.11 In order to avoid the double appeal, most cases were sent by the bishop to the court of the Province in the first instance.1
The provisions of the Act did not apply to persons instituting suits to establish a civil right.2 They did apply to all exempt and peculiar places, except those belonging to bishoprics or archbishoprics.3 Pending the enquiry or trial, the bishop was empowered to inhibit the party accused from continuing to perform the services of the church.4 This act has for most purposes been repealed, in respect of offences committed by clergymen, which come within the provisions of the Clergy Discipline Act of 1892.5
The Act provides that a clergyman convicted of treason, certain felonies and misdemeanours, or adultery, or against whom a bastardy order, or a decree for judicial separation has been made, shall ipso facto forfeit his preferment within twenty-one days.6 It provides that a clergyman may be prosecuted, in the Consistory Court of his diocese, by any of his parishioners, if he is convicted by a temporal court of an act (other than those named above) constituting an ecclesiastical offence, or, if he “is alleged to have been guilty of any immoral act, immoral conduct, or immoral habit, or of any offence against the laws ecclesiastical, being an offence against morality, and not being a question of doctrine or ritual.”7 The bishop may in all cases disallow the prosecution if he sees fit. The trial is before the bishop’s chancellor; but, if either party so requires, questions of fact must be decided by five assessors.8 There is an appeal on any question of law, and, with the leave of the appellate court, on any question of fact, either to the court of the Province or to the Privy Council.9
In 1874 the Public Worship Regulation Act10 gave to the existing Ecclesiastical Courts a new machinery for the trial of offences against the ceremonial law of the church. An archdeacon, a churchwarden, or any three parishioners of the archdeaconry or parish within which a church or burial ground is situate, may represent to the bishop that unlawful additions have been made in the fabric or ornaments of the church, or that there has been use of unlawful ornaments, or neglect to use prescribed ornaments, or that there has been failure to comply with the rules of the book of Common Prayer, as to the conduct of services.1 The bishop may, if he pleases, refuse to institute proceedings.2 If he thinks that proceedings should be taken, he may himself, with the consent of both parties, deal finally with the case.3 If they do not consent, the case is heard by the judge of the court of the Province.4 From his decision an appeal lies to the Privy Council.5
The working of this act has not been found to be altogether satisfactory. The ecclesiastical commissioners of 1883 reported that it added little to the powers conferred on the Court of the Arches by the Church Discipline Act; and that, in practice, proceedings taken under it were no more convenient than proceedings taken under the earlier act.6
The Benefices Act of 18987 gave to the bishop in certain cases8 the power to refuse to institute a person presented to a benefice. An appeal from such refusal lies to the archbishop of the Province, and to a judge of the supreme court, nominated pro hac vice by the Lord Chancellor.9 The judge decides any question of law, and finds the facts. The archbishop gives judgment as to whether the facts so found renders the presentee unfit for the duties of the benefice.10 From this decision there is no appeal.10 The same tribunal is given a jurisdiction in cases where a bishop has superseded and inhibited an incumbent, by reason of negligent performance of his duties. The incumbent can in such cases appeal to this tribunal. The judge decides whether there has been negligence. The archbishop, if negligence is found, decides whether it is good ground for the inhibition.11
(iii) The jurisdiction of the Ecclesiastical Courts.
In the 12th century the Ecclesiastical Courts claimed to exercise wide jurisdiction. (1) They claimed criminal jurisdiction in all cases in which a clerk was the accused, a jurisdiction over offences against religion, and a wide corrective jurisdiction over clergy and laity alike “pro salute animæ.” A branch of the latter jurisdiction was the claim to enforce all promises made with oath or pledge of faith. (2) They claimed a wide jurisdiction over matrimonial and testamentary causes. Under the former head came all questions of marriage, divorce, and legitimacy; under the latter came grants of probate and administration, and the supervision of the executor and administrator. (3) They claimed exclusive cognisance of all matters which were in their nature ecclesiastical, such as ordination, consecration, celebration of service, the status of ecclesiastical persons, ecclesiastical property such as advowsons, land held in frankalmoigne, and spiritual dues.
These claims were at no time admitted by the state in their entirety. In course of time most of these branches of jurisdiction have been appropriated by the state. All that is practically left at the present day is a certain criminal or corrective jurisdiction over the clergy, and a certain jurisdiction in respect of some of the matters contained under the third head. The history of this jurisdiction we must now sketch.
(1) Criminal and corrective jurisdiction.
(a) Criminal jurisdiction.
In the 12th century the Church claimed that all clerks should be exempt from any kind of secular jurisdiction, and, in particular, that “criminous clerks” should be subject to the jurisdiction of the Ecclesiastical Courts alone.1 In answer to this claim Henry II., in 1164, propounded the scheme contained in the third clause of the Constitutions of Clarendon.2 He contended that that scheme represented the laws in force in the time of Henry I. According to the clause the clerk is accused before the temporal court. He must there plead his clergy. He will then be sent to the Ecclesiastical Court for trial, and a royal officer will attend the trial. If he is found guilty and degraded the royal officer will bring him back, as a layman, to the temporal court to suffer the layman’s punishment. Becket objected to this scheme on three grounds:—(1) A clerk ought not to have been accused before the temporal court; (2) a royal officer ought not to have been present in the Ecclesiastical Court; (3) further punishment by the lay court involved an infringement of the rule that no man ought to be punished twice for the same offence. The first two of these objections were good according to the canon law. As to the third the canon law was not at that date clear; but the principle for which Becket contended was shortly afterwards condemned by Innocent III.1 The results of Becket’s murder were curious. The temporal courts maintained their claim to bring the criminous clerk before them. They abandoned their claim to punish the degraded clerk. This abandonment gave rise to the Privilege or Benefit of Clergy.
Originally the Benefit of Clergy meant that an ordained clerk charged with felony could be tried only in the Ecclesiastical Court. But, before the end of Henry III.’s reign, the king’s court, though it delivered him to the Ecclesiastical Court for trial, took a preliminary inquest as to his guilt or innocence.2 The Ecclesiastical Court then tried the accused by the obsolete process of compurgation.3 The court could sentence to degradation, imprisonment or whipping. The Benefit of Clergy did not apply to high treason, to breaches of the forest laws, to trespasses or misdemeanours.4
In course of time the Benefit of Clergy entirely changed its nature. It became a complicated series of rules exempting certain persons from punishment for certain criminal offences.1
(1) The class of persons who could claim it was enlarged, and distinctions were drawn between them. In 13502 it was enacted that secular as well as religious clerks should have the privilege. After this statute the privilege became extended to all who could read. In 17053 even this requirement was abolished. But traces of the time when the privilege was really a privilege of the clergy were long maintained in the rules that the “bigamus” (i. e. the men twice married or married to a widow) and a woman, could not claim it. The first exception lasted till 1547,4 the second till 1692.5
In 14876 it was enacted that all persons, except those actually in orders, should, if convicted of a clergyable felony, be branded and disabled from claiming the privilege a second time. In 15477 a peer, even if he could not read, was given the same privilege as a person actually in orders.
(2) Changes were made in the method and consequences of successfully pleading clergy.
It had been found better for the prisoner not to plead his clergy at once, but to plead to the indictment, and take his trial, as he could then challenge the jury, and there was always a chance that he might be acquitted. If he was convicted he could then plead his clergy.8
In 15769 the necessity for proving innocence in the Ecclesiastical Court by compurgation was abolished. But the judges could imprison persons (not being peers or clerks in orders), who had taken the Benefit of Clergy, for any term not exceeding a year. In 17171 it was enacted that persons convicted of clergyable larcenies (not being peers or clerks in orders) should be transported for seven years.
(3) The number of offences not clergyable were gradually increased and, when new offences were created, they were generally stated to be without Benefit of Clergy.
We have seen that at common law, high treason, breaches of the forest laws, and misdemeanours were not clergyable. On the other hand all felonies except insidiatio viarum, and depopulatio agrorum were clergyable.2 By successive statutes the following offences were deprived of the benefit of clergy:—Petty treason, murder in churches or highways, and later all murders, certain kinds of robbery and arson (except in the case of clerks in orders), piracy, burglary and housebreaking if any one was in the house and put in fear, horsestealing, rape, abduction with intent to marry, stealing clothes off the racks, or stealing the king’s stores.3
In 18274 the Benefit of Clergy was abolished.
(b) Corrective jurisdiction.
The Ecclesiastical Courts exercised a wide and vague control over the religious beliefs and the morals of clergy and laity alike. The state regarded itself as under a duty to enforce obedience to the laws of God. The Ecclesiastical Courts were the instruments through which the state acted. The result was “a system of moral government emanating from the episcopal order, and forming that part of the pastoral care, which is fully expressed in the Consecration Service, when the bishop promises that such as be unquiet, disobedient, and criminous within his diocese, he will correct and punish, according to such authority as he has by God’s word, and as to him shall be committed by the ordinance of this realm.”5
We may divide the extensive jurisdiction thus exercised by the Ecclesiastical Courts into two heads:—(α) offences against religion, (β) offences against morals.
(α) Offences against religion.
Of such offences the most important is heresy. It was regarded as a species of high treason against the church. “A man who did not begin by admitting the king’s right to obedience and loyalty, put himself out of the pale of the law. A man who did not believe in Christ or God put himself out of the pale of human society; and a man who on important subjects thought differently from the church, was on the high road to disbelief in Christ and in God, for belief in each depended ultimately upon belief in the testimony of the church.”1 The infrequency of heresy, down to the time of Wicklif and the Lollards, makes it somewhat uncertain in what manner the Ecclesiastical Courts could deal with it. The case of the deacon, who was burnt at Oxford because he apostatized for the love of a Jewess, is the only undoubted case mentioned in the older books.2 But heresy was known on the continent, and there is no doubt that the canon law distinctly laid it down that the penalty was death by burning.3 It is to this rule of the canon law that Lyndwood refers as authority for the proposition the heretics must be burnt.4 The accounts we have of the story of the deacon and the Jewess are too obscure to make it an authority for any distinct legal proposition. But the case of Sawtre (1400) is a clear case in which the rule of the canon law was applied. He was convicted of heresy before the bishop of Norwich and recanted his heresy. He fell again into heresy, and was condemned by the archbishop and his provincial council, as a relapsed heretic. On this conviction the king issued a writ de hæretico comburendo.1
This case clearly shows that the common law recognised the rule of the canon law, and that therefore such a writ lay at common law. It was not till a fortnight after this writ was issued that the act 2 Henry IV. c. 15 was passed with a view to strengthen the hands of the law in dealing with heresy. That act provides that persons “defamed or evidently suspected” of heresy shall be detained in the bishop’s prison till they abjure. If they decline to abjure, or relapse, they are to be burnt. By a later act of 14142 all officials “having governance of people” were directed to take an oath to use their best endeavours to repress heresy. They were to assist the Ecclesiastical Courts whenever required. The justices of assize and the justices in quarter sessions were to receive indictments of heresy, and to deliver over the persons indicted to be tried by the Ecclesiastical Courts.
The act thus gave the clergy power to arrest and imprison by their own authority, and to requisition the aid of the civil power in so doing.3
Henry VIII.’s legislation necessitated some changes in the law relating to heresy. By an act of 15334 it was declared that speaking against the authority of the pope, or against spiritual laws repugnant to the laws of the realm, should not be heresy. The act of 2 Henry IV. c. 15 was repealed, and the bishops were thereby deprived of the power to arrest and imprison on suspicion. The tourn and the leet, as well as the justices of assize and the quarter sessions, were given power to receive indictments of heresy. Thus an accusation for heresy must, as a rule, begin by an indictment before some recognised temporal court. The result was a great cessation in prosecutions for heresy.5 The act of the Six Articles6 (1539) made the holding of certain opinions felony; and it was provided that commissions should issue to the bishop and other persons to inquire into these offences four times a year.
In Edward VI.’s reign all the previous legislation touching heresy was repealed. The common law was restored.1 But the common law was the law settled by Sawtre’s case.2 The result was curious. Persons might be burnt for heresy in a Protestant country under the authority of the papal canon law.
Elizabeth’s Act of Supremacy authorised the establishment of the court of High Commission for the trial of ecclesiastical offences.3 But it considerably limited their powers to declare opinions heretical.4 If, however, a man was convicted of heresy by the court he might be burnt according to the rule of the common law. Heretics were burnt in 1575 and 1612. In the latter case Coke’s opinion was against the legality of the issue of the writ de hæretico comburendo, but four judges were against him.5 In 16776 “all punishment of death in pursuance of any ecclesiastical censures” was abolished. But the act contained a proviso that nothing in it shall “take away or abridge the jurisdiction of Protestant archbishops or bishops, or any other judges of any Ecclesiastical Courts, in cases of atheism, blasphemy, heresy, or schism, and other damnable doctrines and opinions, but that they may proceed to punish the same according to his Majesty’s ecclesiastical laws, by excommunication, deprivation, degradation, and other ecclesiastical censures not extending to death.” Many of these offences can now be punished in the temporal courts: but by virtue of this saving it is probably theoretically possible that persons guilty of such offences may be excommunicated, and imprisoned for six months by an Ecclesiastical Court.
(β) Offences against morals.
The Ecclesiastical Courts exercised a wide disciplinary control over the moral life of the members of the church. The criminal precedents published by Archdeacon Hale in 1847 illustrate the nature of the jurisdiction. They consist of a collection of extracts from the Act Books of six Ecclesiastical Courts between the years 1475 and 1640. The offences dealt with are varied and numerous. They comprise, adultery, procuration, incontinency, incest, defamation, sorcery, witchcraft, behaviour in church, neglect to attend church, swearing, profaning the Sabbath, blasphemy, drunkenness, haunting taverns, heretical opinions, profaning the church, usury, ploughing up the church path.1 The methods by which the Ecclesiastical Courts proceeded were well calculated to produce evidence of the commission of such offences. They might proceed:—(1) By inquisition. In this case the judge was the accuser. He might proceed upon his own personal knowledge or on common fame. As a rule the apparitors or other officers supplied the information. They used their powers in many cases in the most corrupt manner. Chaucer probably represented the popular view when he makes the Friar say of the “sompnour”—
Or (2) they might proceed on the accusation of some individual who was said to “promote the office of judge.” Or (3) they might proceed by Denunciation. In that case the person who gave the information was not the accuser, nor subject to the conditions attaching to this position.1 This system was, as Stephen says, “in name as well as in fact an inquisition, differing from the Spanish Inquisition in the circumstances that it did not . . . employ torture, and that the bulk of the business of the courts was of a comparatively unimportant kind.”2 We can see, from the number of cases tried, that up to 1640 the system was in full vigour. In the archdeacon of London’s court, between Nov. 27, 1638, and Nov. 28, 1640, there were 30 sittings and 2500 causes entered. If each person attended on two or three court days the number of persons prosecuted would be less than this. But the records show that 1800 people were before the court in that time, “three-fourths of whom, it may be calculated, were prosecuted for tippling during Divine Service, breaking the Sabbath, and non-observance of Saints days.”3
It is not difficult to see why the Parliament in 1640 abolished the Ecclesiastical Courts. A system which enabled the officers of inferior courts to enquire into the most private affairs of life upon any information was already out of date.
The ordinary Ecclesiastical Courts and their jurisdiction were restored in 1661;4 and there is no legal reason why at the present day they should not try cases of adultery or fornication. But between the Restoration and the present day their jurisdiction has been much curtailed, and has finally altered its shape, not only because men’s ideas upon methods of moral government have changed, but also because the state has interfered to punish offences which were once left to the Ecclesiastical Courts. In 1533 unnatural offences, and in 1541 witchcraft were made felonies.1 In 1603 bigamy was made felony.2 In 1823 jurisdiction in cases of perjury was taken away from the Ecclesiastical Courts.3 In 18554 suits for defamation, and in 18605 suits against laymen for brawling in church were similarly removed. It was a principle laid down by Coke, as an established maxim in law, “that where the common or statute law giveth remedy in foro seculari (whether the matter be temporal or spiritual), the conusance of that cause belongeth to the king’s temporal courts only; unless the jurisdiction of the spiritual courts be saved, or allowed by the same statute, to proceed according to the ecclesiastical laws.”6 The result is that while the jurisdiction of the Ecclesiastical Courts over certain kinds of immorality still in theory remains, in practice these courts are only called upon to act in the case of the clergy. In this respect, as we have seen, their jurisdiction has been improved.7 They are no longer “courts of law having authority over the sins of all the subjects of the realm.” They are “courts for enforcing propriety of conduct upon the members of a particular profession.”8
The Ecclesiastical Courts at one time claimed a species of corrective jurisdiction in all cases in which there had been fidei læsio. This, if conceded, would have given them an extensive jurisdiction over contract. We have seen that in the 14th century the temporal courts stopped the exercise of this species of jurisdiction.9
(2) Matrimonial and Testamentary causes.
The Ecclesiastical Courts had, certainly from the 12th century, undisputed jurisdiction in matrimonial causes. Questions as to the celebration of marriage, as to the capacity of the parties to marry, as to the legitimacy of the issue, as to the dissolution of marriage were decided by the Ecclesiastical Courts administering the canon law.1 The common form of the writ of prohibition always alleged that the matter over which jurisdiction had been assumed was neither matrimonial nor testamentary.2
The temporal courts had no doctrine of marriage. But questions as to the validity of marriage might come incidentally before them. Was a woman entitled to dower? Is the child of a marriage entitled to inherit English land? What if the parties, ignorant of any impediment, marry in good faith and have issue? What if the jurors in an assize find facts from which a marriage can be presumed? In answering some of these questions the temporal courts often laid down rules about marriage which were at variance with the rules of the canon law. The canon law laid it down clearly that mere consent—without any further ceremony, and without cohabitation—sufficed. The temporal courts laid more stress upon some ceremony, or some notorious act. The death-bed marriage was not regarded as sufficient to establish a claim to dower. A child legitimated per subsequens matrimonium could not inherit English land. If the parties were ignorant of the impediment, and later whether or not they were ignorant, the children were legitimate, if born before divorce, or, later, if their parents were not divorced. For the purposes of an assize a de facto marriage would be recognised.3 It was probably a consideration of these rules of the temporal courts, adjudicating on marriage, or rather on the reputation of marriage, for very special purposes, which led the House of Lords in 18434 to assert, in defiance of the canon law of the Middle Ages, that the presence of an ordained clergyman was necessary to constitute a valid marriage.
Over the law of divorce the Ecclesiastical Courts had complete control till 1857. This jurisdiction comprised suits for the restitution of conjugal rights, suits for nullity, either when the marriage is ab initio void, or when it is voidable, suits for a divorce a mensa et thoro by reason of adultery or cruelty. The Ecclesiastical Courts could pronounce a marriage void ab initio; and in that case the parties were said to be divorced a vinculo matrimonii. But they had no power to pronounce a divorce a vinculo if there had been a valid marriage.1
For a short time after the Reformation the Ecclesiastical Courts seemed to have considered that they had this power.2 But this opinion was overruled in 1602.3 A valid marriage was therefore indissoluble, except with the aid of the legislature. At the end of the 17th century a practice sprang up of procuring divorces by private act of Parliament.4 The bills were introduced into the House of Lords, who strictly examined the circumstances of the case. As conditions precedent it was necessary to have obtained a decree a mensa et thoro from the Ecclesiastical Court, and to have recovered damages against the adulterer in an action at common law for criminal conversation.
The anomaly of this state of the law was striking. It practically made divorce the privilege of the very rich. This was forcibly expressed by Maule, J., in his address to a prisoner who had been convicted of bigamy, after his wife had committed adultery, and deserted him. “Prisoner at the bar,” he said, “you have been convicted of the offence of bigamy, that is to say, of marrying a woman while you have a wife still alive, though it is true she has deserted you, and is still living in adultery with another man. You have, therefore, committed a crime against the laws of your country, and you have also acted under a very serious misapprehension of the course which you ought to have pursued. You should have gone to the Ecclesiastical Court and there obtained against your wife a decree a mensa et thoro. You should then have brought an action in the Courts of Common Law and recovered, as no doubt you would have recovered, damages against your wife’s paramour. Armed with these decrees you should have approached the legislature, and obtained an act of Parliament, which would have rendered you free, and legally competent to marry the person whom you have taken on yourself to marry with no such sanction. It is quite true that these proceedings would have cost you many hundreds of pounds, whereas you probably have not as many pence. But the law knows no distinction between rich and poor. The sentence of the court upon you therefore is that you be imprisoned for one day, which period has already been exceeded, as you have been in custody since the commencement of the assizes.”
In 1857 all jurisdiction over divorce and over “all causes and suits and matters matrimonial” were taken from the Ecclesiastical Courts and vested in a court called the Divorce court.1 The Lord Chancellor, the chief justices, and the senior puisne judges of the Courts of Common Law, and the judge of the court of Probate were made the judges of the court. The judge of the court of Probate was made the judge ordinary of the court.2 In some cases he could sit alone, in others he must sit with one of the other judges of the court. When he sat alone there was an appeal to the full court.3 An appeal to the House of Lords from decrees of dissolution or nullity of marriage was provided in 1868.4
In this court was vested the jurisdiction and powers of the Ecclesiastical Courts, the powers of the legislature to grant an absolute divorce, the powers of the Common Law Courts to award damages in an action for criminal conversation.5 The latter action was abolished.6 In addition a wife deserted by her husband was enabled to apply to the magistrate for a protection order.7
The act has been in the opinion of the person most qualified to judge a complete success. Sir Francis Jeune writes,1 “Probably few measures have been conceived with such consummate skill and knowledge, and few conducted through Parliament with such dexterity and determination. The leading opponent of the measure was Mr. Gladstone, backed by the zeal of the High Church party, and inspired by his own matchless subtlety and resource. But the contest proved to be unequal. After many debates, in which every line, almost every word, of the measure was hotly contested . . . it emerged substantially as it had been introduced. Not the least part of the merit and success of the act of 1857 is due to the skill which, while effecting a great social change, did so with the smallest possible amount of innovation.”
The ecclesiastical courts obtained jurisdiction over grants of Probate and Administration, and, to a certain degree, over the conduct of the executor and administrator. All these branches of their jurisdiction could be exercised only over personal estate; and this abandonment of jurisdiction to the Ecclesiastical Courts has tended, more than any other single cause, to accentuate the difference between real and personal property. Even when the Ecclesiastical Courts had ceased to exercise some parts of this jurisdiction, the law which they had created was exercised by their successors.
We shall consider (1) the origin and extent of the jurisdiction of the Ecclesiastical Courts, and (2) the decay of this jurisdiction.
(1) The origin and extent of the jurisdiction of the Ecclesiastical Courts.
(a) Jurisdiction over grants of Probate.
The origin of this jurisdiction is difficult to discover. Neither the civil nor the canon law sanctioned it.2 We hear nothing of it in England in the 12th century; and Selden says “I could never see an express probate in any particular case older than about Henry III.”3 Testators rather sought the protection of the king or of some powerful individual; and the effect might be somewhat similar to that of a grant of probate in later law.1
But as early as the reign of Henry II. it is probable that jurisdiction in cases of disputed wills belonged to the Ecclesiastical Courts. Glanvil says definitely that this was the law in his day;2 and amid all the disputes of Henry II.’s reign, as to the limits of the jurisdiction of the Ecclesiastical Courts, no claim to exercise this species of jurisdiction was put forward by the king’s courts.3 Once admit that the Ecclesiastical Courts have jurisdiction to decide cases of disputed wills, and a jurisdiction to grant probate will follow. At the same time old ideas die hard. Some lords of manors successfully asserted the right to have all the wills of their tenants proved in their courts. Possibly in some cases this is a survival from the days when, probate in the technical sense being unknown, the protection of a lord was sought for a will;4 though in other cases it may, as Professor Maitland suggests, have originated in later grants from the Pope.5
In a constitution of Archbishop Stratford of 1380, the jurisdiction is said to belong to the Church, “consensu regis et magnatum regis.”6 Lyndwood says “de consuetudine tamen hæc approbatio in Anglia pertinent ad judices ecclesiasticos.”7 Selden, too, considers that it rests upon immemorial custom; though he conjectures that it may have been handed over to the Church by a Parliament of John’s reign.8 We shall see that this is more probably true of the jurisdiction over grants of the administration to one who has died intestate. But the fact that about this time the Ecclesiastical Courts got jurisdiction over grants of administration, over legacies, and, in some cases, over debts due by or to a deceased testator, may have been decisive in favour of this closely allied branch of the same jurisdiction.
(b) Jurisdiction over distribution of intestates’ goods and grants of Administration.
Probably jurisdiction over the distribution of intestates’ goods belonged originally to the temporal courts.1
In Saxon times the kindred who inherit would seem to have been the persons who superintended the distribution of intestates’ goods.2 This is the arrangement which we find in Glanvil; and neither Walter de Map nor John of Salisbury mention this branch of the jurisdiction of the Ecclesiastical Courts, though they have much to say respecting them.3
A canon made at a council held at St. Paul’s before Othobon4 (1268) speaks of “a provision made as to the goods of intestates which is said to have emanated from the prelates of the realm with the consent of the king and barons.” In the opinion of Selden5 and of Professor Maitland6 this refers to § 27 of Magna Carta, which provides that the goods of an intestate shall be distributed by the hands of his near relations and friends “per visum ecclesiæ salvis unicuique debitis.”7 This was the rule known to Bracton. “Ad ecclesiam et ad amicos pertinet executio bonorum.”8 A claim to superintend the distribution made by the kinsfolk will without much difficulty become a claim to administer. And the claim was here peculiarly strong. The man who dies intestate will probably have died unconfessed.9 There could be no sure and certain hope as to the state of such a person. The Church should obviously see that the property, of which he might have disposed by will, is distributed for the good of his soul. Distribution by the kinsfolk “pro anima ejus” of Henry I.’s Charter; distribution “per visum ecclesiæ” of Magna Carta; actual administration by the Ordinary, perhaps mark the stages by which the Ecclesiastical Courts acquired jurisdiction. Up till Edward III.’s reign the court actually administered and made the distribution among those relatives of the deceased who were entitled. But its conduct was so negligent and even fraudulent that the legislature interfered.1 The court was obliged to delegate its powers to administrators, whom it was obliged to appoint from among the relatives of the deceased.2 Instead of distributing the estate the Ecclesiastical Court merely grants administration. These administrators were by the statute assimilated in all respects to executors. Like executors they are the personal representatives of the deceased.
(c) Jurisdiction over the conduct of the executor and administrator.
In the 13th century the Ecclesiastical Courts obtained jurisdiction over legacies, and in certain cases over debts due to or by a testator.
According to the civil law the bishop had a concurrent jurisdiction with the lay courts over legacies left in pios usus.3 There is a vague provision made by some council of Mentz which seems to give the bishop an indefinite right of interference.4 But in other countries this does not appear to have given to the Ecclesiastical Courts any jurisdiction beyond that over legacies left in pios usus. In Glanvil’s time legacies could be recovered in the king’s court.1 Selden gives specimens of writs of the time of Henry III. ordering executors to fulfil the wills of their testators.2 But it is possible that the royal courts assumed jurisdiction in some of these cases for special reasons. It is probable that, even in Henry II.’s reign, the Ecclesiastical Courts had a jurisdiction concurrent with that of the temporal courts. No writ of prohibition issued if a suit for legacies was begun in the Ecclesiastical Court. Selden said that he had seen none on the plea rolls of either Richard I., John, or Henry III.3 Both Bracton and Fleta state definitely that no prohibition lies in such a case.4 In 1230 it was decided that a legatee could not recover in the king’s court, but must sue in the Ecclesiastical Court.5
When the Ordinary was obliged by law to delegate its power over the goods of an intestate to an administrator, the Ecclesiastical Court naturally assumed jurisdiction over the due distribution of the estate by the administrator.
The Ecclesiastical Courts never possessed more than a limited jurisdiction over debts due to or by a testator; and that jurisdiction was effectively exercised only for a short time.6
When Glanvil wrote, the heir is the person liable to carry out the will and to pay the debts.7 In Bracton’s time the heir must pay the debts to the extent of the chattels which he has received from the deceased, and he can sue the deceased’s creditors.8 In the time both of Glanvil and Bracton the heir sues and is sued in the king’s court. In the time of Bracton, however, the executor can sue on debts acknowledged in the testator’s lifetime, because such debts are substantially the testator’s goods. He can be sued if he has been directed in the will to pay the debts, because such direction amounts to something very like a legacy.1 Britton and Fleta limit the liability of the heir to cases where he has been specially bound to pay by the deed of his ancestor, or where the debt is owed to the king.2 It is clear that the heir is ceasing to be the person primarily liable to pay the debts of the deceased.
When the executor sues, or is sued, the proceedings take place in the Ecclesiastical Courts. The Ecclesiastical Courts naturally attempted to extend their jurisdiction to cover all actions by or against executors.3 But, in the late 13th and in the 14th and 15th centuries, the king’s court refused to allow this extension. They gave rights of action to or against executors (and later), to or against administrators.4 The Ecclesiastical Courts thus lost jurisdiction over actions of this kind.
Indirectly, however, the position which the executor or administrator came to occupy in the king’s court assisted the jurisdiction of the Ecclesiastical Courts. He gradually takes the place which the heir had occupied in the 12th century.5 He becomes primarily, and, at length, with one exception,6 solely liable to the creditors of the deceased. He becomes in fact the deceased’s personal representative.
This new position taken by the executor or the administrator tended to develop the jurisdiction of the Ecclesiastical Courts over the administration of the estate. The executor or administrator was amenable to them; and he was now the personal representative. Thus we find that the Ecclesiastical Courts laid down rules intended to secure the creditors, the legatees, or those entitled on intestacy. The executor or administrator was compelled to make an inventory.7 He must account at the close of the administration;8 and in some cases he must give a bond to secure the production of the account.1 He was given remedies against those who detained the property of the deceased.2 Penalties were denounced against him if he appropriated the deceased’s property.3 Like the tutor suspectus of Roman law he could be removed by the court if good ground of suspicion were shown.4
This jurisdiction of the Ecclesiastical Courts was clearly the consequence of the jurisdiction over probate, legacies, and the administration of intestates’ effects which they had been allowed to assume in the 13th century. That they should have gained this jurisdiction about this time is not perhaps strange. As Selden points out,5 the clergy played a part—perhaps the most important part—in the events which led to the passing of Magna Carta. There were English precedents for the jurisdiction of the Ecclesiastical Courts—though not for their exclusive jurisdiction. The only serious rival to the Ecclesiastical Courts was the king’s court. The judges of that court were generally clerics. They acted, it is true, loyally as temporal judges.6 But they cannot have been altogether opposed to “arranging a concordat” with the Ecclesiastical Courts, which eventually gave to the Ecclesiastical Courts in England a jurisdiction over matters testamentary, larger than that possessed by any other Ecclesiastical Courts in Europe. For, as Lyndwood says, this jurisdiction “de consuetudine Angliæ pertinet ad judices ecclesiasticos . . . secus tamen est de jure communi.”7
(2) The decay of the jurisdiction of the Ecclesiastical Courts.
We have seen that, in the 14th century, the executor and the administrator had been granted rights of action, and had been rendered liable to be sued in the king’s court for the debts due to and by the deceased. But the remedies given by the king’s courts were by no means complete, till, at the end of the 16th and beginning of the 17th century, it was definitely decided, that executors and administrators could sue and be sued by the action of assumpsit.1 The extension of what was in its origin a quasi delictual action to the representative was no doubt caused by the fact that he would otherwise have had recourse to the court of Equity.2 This move on the part of the Common Law Courts made a recourse to the court of Equity unnecessary in this particular class of case. But, it was the extension of the equitable jurisdiction in other directions, which finally deprived the Ecclesiastical Courts of all effective jurisdiction, except that over probate and grants of administration. This extension was necessitated by the jealousy felt by the Common Law Courts for any rival jurisdiction. The jurisdiction of the Ecclesiastical Courts was crippled; and, as the court of Equity had succeeded in defeating the attempts made by the Common Law Courts to treat it,3 as they had treated the court of Admiralty,4 and the Ecclesiastical Courts, it was able to offer more complete and better remedies.
The Common Law Courts had made it almost impossible for the Ecclesiastical Courts to act at all. They would not allow the truth of the inventory to be enquired into.5 They would not allow the creditors to examine into the truth of the executor’s accounts because he had a remedy at common law.6 They issued writs of prohibition against all who sued upon the bonds taken to secure the production of a proper account.7 We are not surprised, therefore, to find that applications were made at the end of the 15th century to the Chancellor in cases which involved the taking of accounts.8 The Chancellor could also assist the plaintiff by enforcing discovery against the executor.9 The extension of the doctrine of trusts enabled the court to control the personal representative in the interest of all who claimed under a will or an intestacy, whether they were creditors or legatees.1 It was therefore in the court of Chancery, and not in the Ecclesiastical Courts, that the rules relating to the powers, rights and duties of the personal representative have grown up. The court followed the rules of the Ecclesiastical Courts and of the Common Law Courts respectively when they were applicable.2 But it was the procedure of the court of Chancery which made it possible to distinctly conceive the complicated equities which arise in the administration of an estate. It was the rules evolved by the court which provided for their adjustment.
The statute of Distributions, it is true, attempted to strengthen the jurisdiction of the Ecclesiastical Courts with a view to secure the proper distribution of the effects of an intestate. It enabled the Ecclesiastical Courts to call administrators to account, and gave the judge power to take bonds for this purpose.3 But the superior procedure of the court of Chancery prevailed.4 The Ecclesiastical Courts in practice retained jurisdiction only over grants of probate and administration. When, in 1857, their jurisdiction in matters testamentary was taken away, it was provided that the Court of Probate then established should have no jurisdiction over legacies, or over suits for the distribution of residues.5
The Act of 1857 established a court of Probate, presided over by a single judge, to whom was given the rank and precedence of the puisne judges of the superior courts.6 It was provided that he should be the same person as the judge of the court of Admiralty.7 He was given the jurisdiction to make grants of probate and administration formerly exercised by the Ecclesiastical Courts.1 An appeal from his decision lay to the House of Lords.2
(3) Jurisdiction over matters of exclusively ecclesiastical cognisance.
The Ecclesiastical Courts still have jurisdiction over many matters of exclusively ecclesiastical cognisance, such as questions of doctrine and ritual, ordination, consecration, celebration of divine service, disputed application for faculties.3 They formerly had jurisdiction over many questions concerning ecclesiastical property such as tithes, church dues, dilapidations. But recent statutes have much curtailed their jurisdiction over these matters.4 Over one species of ecclesiastical property the temporal courts have always kept a firm hand. From Henry II.’s day the advowson has been regarded as real property, and subject to the jurisdiction of the temporal courts.5 It would appear from the Constitutions of Clarendon that Henry was at that time prepared to allow the Ecclesiastical Courts jurisdiction over property held in frankalmoigne.6 But in the 13th century this jurisdiction was denied to them. All questions relating to land, other than consecrated soil, became the subjects of temporal jurisdiction, and subject to rules of temporal law.7 The barons at the council of Merton refused to change these rules as to legitimacy in order to bring them into harmony with the law of the church. Up to the 17th century a man might, if his parents had subsequently married, be legitimate for some purposes, without being capable of inheriting English land.8
The process by which the Ecclesiastical Courts enforced obedience to their decrees was excommunication. It was to the spiritual courts what outlawry was to the temporal courts. If the excommunicate did not submit within 40 days, the Ecclesiastical Court signified this to the crown, and thereon a writ de excommunicato capiendo1 issued to the sheriff. He took the offender and kept him in prison till he submitted. When he submitted the bishop signified this, and a writ de excommunicato deliberando issued.
The temporal consequences of excommunication were serious. The excommunicate cannot do any act which is required to be done by a probus et legalis homo. “He cannot serve upon juries, cannot be a witness in any court, and, which is worst of all, cannot bring an action either real or personal, to recover lands or money due to him.”2 An act of Elizabeth’s reign improved the procedure on the writ de excommunicato capiendo.3 In 1813 it ceased to exist as part of the process of the Ecclesiastical Court to enforce appearance, and as a punishment for contempt. For it was substituted the writ de contumace capiendo.4 The rules applying to the older writ were made applicable to the new. Excommunication is still a punishment for offences of ecclesiastical cognisance; and, on a definitive sentence for such an offence, the writ de excommunicato capiendo can still issue; but it is provided that a person pronounced excommunicate shall not incur any civil penalty or incapacity, except such imprisonment (not exceeding six months) as the court pronouncing the excommunication may direct.5
THE HISTORY OF THE ADMIRALTY JURISDICTION1
THE Admiralty Court had its origin in the authority of the Admiral, of whom the judge was the deputy.
The title of admiral,3 to indicate the custos maris4 of earlier times—that is, the officer exercising the jurisdiction of the Crown in respect of the command and charge of the sea, either during a particular expedition or over a particular district—was not used in England as an official description before the year 1286,1 and the first patent of Admiral of England conferred upon a subject would appear to date from 1386.2 The command of the English seas was then divided, as had previously been the case with the custodes maris, between several admirals, with limits to the north, south or west from the mouth of the Thames;3 but owing to the necessity for the defence of the coast, especially of the county of Kent, which was particularly liable to invasion, and the importance of commanding the eastern entrance of the English Channel, special privileges, liberties and franchises were from early times bestowed on the so-called Cinque Ports, Dover, Hastings, Romney, Hythe and Sandwich, to which the two ancient towns of Winchelsea and Rye were added in the time of Richard I.4 In 1294 Gervoise Alard, of Winchelsea, was Capitaneus and Admirallus of the fleet of the Cinque Ports, and of all other ports from Dover to Cornwall.1 It is said that “the office of Admiral of the Cinque Ports is more ancient than the office of Lord High Admiral,” and that he had “all the authorities, rights, and royalties belonging to an admiral annexed to his office.”2 The Court of Admiralty of the Cinque Ports, locally situated at Dover,3 still exists, as it was not included in the sweeping changes effected by the Municipal Reform Act.
The authority of a Lord High Admiral depended upon his commission.4 He was sometimes instituted for life and sometimes during pleasure,5 and it would follow from his position in command of the fleet1 that his jurisdiction was originally of a disciplinary and administrative character, limited to the crews of the vessels under his direct orders, offenders being brought before him to “undergo and receive what the law and custom of the sea wills and requires”;2 whilst commissioners were appointed to try offences committed by others on board the ships of the fleet; but it is alleged that, before the time of Henry I.,3 in the case of indictments for felony, the admiral or his lieutenant sent a capias to the marshal of the court, or to the sheriff, to take the offender, and a procedure is indicated similar to that described by Bracton4 as applicable to cases of homicide where the accused person has taken flight. It is further stated5 that in the same reign (Henry I.) the admirals6 of the north and west were summoned to Ipswich, and ordinances were made, with the concurrence of the temporal lords, respecting the criminal jurisdiction to be exercised by the commanders of the fleets within the seas belonging to the Kings of England.1
The perquisites to which the admiral was entitled, in addition to his pay, were so numerous as to require separate investigation, and “a suit in the Admiralty was originally an inquisition of office for ascertaining and securing to the Lord High Admiral such part of his revenue as consisted of droits,”1 the suit being analogous to the inquisition of office concerning the droits of the Crown, which, being part of the King’s casual revenue, was restricted to the Court of Exchequer.2 The droits or perquisites formerly attaching to the office of Lord High Admiral, as enumerated in their later patents,3 consisted of flotsam, jetsam, ligan,4 treasure, deodands,1 derelicts found within the admiral’s jurisdiction, all goods picked up at sea, all fines, forfeitures, ransoms, recognizances and pecuniary punishments, all sturgeons, whales, porpoises, dolphins, and grampuses, and all such large fishes, all ships and goods of the enemy coming into any creek, road, or port by stress of weather, mistake, or ignorance of the war, all ships seized at sea, salvage, together with a share of prizes.2
Some writers assert that the starting point of the admiral’s jurisdiction in civil suits dates from an ordinance of Edward I., to the effect that “any contract made between merchant and merchant, or merchant or mariner beyond the sea, or within the flood mark, shall be tried before the admiral and nowhere else”;3 but half a century more was spent in efforts by reference to arbitration, and by treaty, to meet the difficulties which arose with foreign sovereigns over cases of alleged piracy and spoil, and it was not until the battle of Sluys, in 1340, gave Edward III. temporary maritime supremacy, that he was in a position to constitute an independent Court of Admiralty with power to deal with causes for which, in the case of a plaintiff foreigner, the Courts of common law afforded no redress.1
The result was that the Admiralty Court acquired jurisdiction in piracy, wreck, capture of royal fish, and obstructions to rivers; all matters previously dealt with by the chancellor, to whom petitions to the King in council were referred, and who, with a view to certifying the King thereon, would either dispose of the whole cause himself, as in the case of piracy, which was deemed specially within his purview,2 or direct an issue, for example, as to piracy or no piracy, or as to the ownership of property and ships spoiled, to the King’s Bench, or to commissioners of oyer and terminer with ordinary juries or merchants and mariners, according as the commissions directed the trial to be secundum legem et consuetudinem regni angliæ, or secundum legem mercatoriam or maritimam.
In the case of piracy, of which suits now became frequent in the Court of Admiralty, the criminal aspect was disregarded, the proceedings being for restitution,3 and no preliminary conviction was required, as was the case where the Lord High Admiral proceeded pro interesse suo, upon his royal grant of bona piratarum.1
In the bundle of documents known as the Fasciculus de superioritate maris2 is one, dated 12 Edw. III., from which it would appear that the King held a consultation with three commissioners as to what laws and ordinances should be observed by his Courts in maritime matters.
The law of the sea, to which the attention of Edward III. was now directed, consisted of those unwritten usages of seafaring men, combined with lingering memories of the so-called law of Rhodes, filtrated through the law of Rome,3 which, in the course of centuries, by the agency of the Consular Courts of the Mediterranean, had crystallised into “customs of the sea.”
The growth of this law, or usages of the ports, was favoured by its recognition from early times as distinct from the law of the land, and, on the downfall of the Western Empire, the so-called barbarians who settled in Gaul, Spain, Africa, and Italy, did not interfere with the existing Roman law, but the legislation took the peculiar turn of becoming personal instead of territorial—that is, each individual, in matters not provided for by the laws of the conquerors, was judged according to the laws and customs of the nation to which he belonged.1 In this way the municipal institutions which had been fostered by the Romans themselves preserved their vitality, and tended to strengthen the force of the local customs, so that they even overrode the law in matters in which they were deemed exclusive; but as time went on difficulty seems to have been experienced in keeping up these cherished customs by oral tradition, so that about the eleventh century a general tendency exhibited itself to reduce them to writing.1
That Courts of the sea followed a law distinct from that of the land is recognised in the Assises of Jerusalem, which date from the reign of Godfrey de Bouillon, the contemporary of Henry I. of England.2 These chapters on maritime law embody the customs of the sea of the Levant, and were drawn up for the benefit of the immigrant Frankish people who followed in the wake of the first Crusade, and established themselves in Syria at the beginning of the twelfth century. The Courts of the sea were presided over by burghers of the same nationality as the litigants. They followed a different procedure to that of the Courts of the land, and they adjudicated in civil disputes on maritime matters3 without regard to the usual mode of proof by wager of battle, which was unknown in the Levant. Where the plaintiff’s were merchants suing other merchants not possessing (like the Genoese, Venetians, or Pisans) the privilege of special Courts of the sea of their own nationality, they were required to sue in the Court of the King, that is, in the “Court of the chain,” which took cognizance of maritime matters and was in the nature of an instance Court of Admiralty with a procedure of its own.
The English municipal institution known as the borough lent its influence to the maintenance of the traditions of a general law in matters of international commerce and navigation. At Ipswich, which was an important maritime borough in the time of Edward the Confessor, a Court sat daily to administer the law merchant between strangers, and between burgesses and strangers, and from tide to tide to administer maritime law to passing mariners. The Domesday of Ipswich is the earliest extant record we posses of any borough Court, with elective officers sitting regularly and administering a customary law of the sea.1
Concurrently with this borough system, which in England transformed the personal union known as the guild into a local association, the communal system was growing up on the other side of the channel, and increased in importance in the western provinces of France after they became subject to the Kings of England. In particular King John, as Duke of Acquitaine, granted a charter to Oleron,2 confirming the liberties of that commune, and under these privileges the probi homines, who assisted the judge in questions arising out of the law of the land, were, in the case of the law of the sea, nautical men (prud’hommes) familiar with the customs of the sea. The Coutumier of the Commune of Oleron1 shows that there was a Court administering the law maritime not only in suits between foreigners and burgesses of Oleron, but in causes where both litigants were foreigners.2 The judgments of this Court were reduced to writing by the prud’hommes of the commune in the twelfth century. They are the earliest extant mediæval sea laws we possess after the ordinances of Trani;3 and it may be assumed that these judgments of the sea, or customs of Oleron, were the outcome of the privileges granted by the Dukes of Guienne to the commune of Oleron prior to the marriage of Eleanora, daughter of William, Duke of Guienne, with Henry II. of England, when the island passed into the possession of the British Crown. Amongst these privileges was that of the prud’hommes of the commune exercising jurisdiction in maritime matters, and adjudicating upon them in the Court of the mayor according to the usages of the sea and the custom of merchants and mariners.4 Some difficulty has been raised as to the time when these judgments of Oleron were introduced into England owing to the terms of the above-mentioned record, known as the Fasciculus, according to which it would seem that part of the object of the consultation which King Edward III. had with the Commissioners was the upholding of the laws and statutes, “which were by the Lord Richard, formerly King of England, on his return from the Holy Land, corrected, interpreted, and declared, and published in the island of Oleron”;5 but whether these judgments were so published as laws at that time or not, it seems clear that, prior to the consultation in question, the judgments of Oleron were in use in the City Courts which administered the law merchant and the law maritime, as two copies exist in the archives of the City of London, the writing of which is as early as the reign of Edward II.1
The judgments of Oleron are inserted in Part C. of the Black Book of the Admiralty as a code of maritime law.2 They are preceded by thirty-nine rules or orders relating to the Admiralty, some of which go back to the reign of Henry I.3 and Richard I.,4 and which were probably translated from Latin into French by the compilers of the Black Book, as French was the language of seafaring men in the time of Edward III.5 After Article 39 in Part C. follow thirty-four articles, of which twenty-four are identical with the most ancient version of the rolls or judgments of Oleron,6 whilst the ten following seem peculiar to the English Admiralty, unless these were deemed part of the laws of Oleron, as seems possible from the record of an appeal from the Mayor’s Court of Bristol1 in 24 Edward III., in which two of these articles would appear to be relied on as part of those laws. The next eighteen articles of the Black Book, lettered D., are stated in the recital in the preamble to be articles of a maritime inquest held at Queenborough in 49 Edward III. (1375) to ascertain and settle certain points of maritime law “as they have been used in ancient times”; and the jurats, in answer to the sixteenth article of inquiry in respect of the right of lodemanage (pilotage), return that “they know of no better advice or remedy, but that if it be from this time used and done in the manner which is contained in the law of Oleron.” The first twenty-four articles of the laws of Oleron as set out in the Black Book do not contain any provision for the punishment of a pilot for failure of duty; but the thirty-third and thirty-fourth articles specially provide for the payment of damages by a pilot, and for his punishment in the event of the loss of the ship through his default.2 It would, therefore, appear that these ten articles were regarded as part of the laws of Oleron in the time of Edward III.1
From the records it would seem that, at this time, the civil jurisdiction in Admiralty included torts and offences on the high seas, on British seas, and in ports within the ebb and flow of the tide, matters of prize,2 contracts within the laws of Oleron1 and causes arising on the seashore and in ports. In 1361 the Council held that, by the common law, felonies, trespasses, and injuries done on the sea should be tried by the admiral by the law maritime, and not according to the common law;2 but the extension of the admiral’s jurisdiction, founded on the theory accepted by the common lawyers at this time, that all matters arising outside the jurisdiction of the common law—that is, outside the body of a county3 —were inside the jurisdiction of the Admiralty,4 led to disputes between the Admiral’s Court and the “Courts of the Seaports” exercising a franchise jurisdiction,5 these disputes being heightened by the irregularities committed by the Court of the Earl of Huntingdon, Admiral of the West;1 and in 1389 and 1391 two statutes were passed defining and limiting in favour of the common law courts, first, the things with which the admiral might meddle, and, secondly, the places to which his jurisdiction might extend. The 13 Rich. II. st. 1, c. 5, refers to the complaints made of encroachments by the admirals and their deputies and of their holding sessions in divers places within and without franchises, impoverishing the common people. It then proceeds to enact that they “shall not meddle from henceforth of anything done within the realm, but only of a thing done upon the sea.” This was followed two years later by the statute 15 Rich. II. st. 2, c. 3, by which it was declared that “the admiral’s court shall have no manner of cognizance, power, nor jurisdiction” . . . “of contracts, pleas, and quereles and all other things done or arising within the bodies of counties as well by land as by water, nor of wreck of the sea,”1 nevertheless “of the death of a man and of mayhem done in great ships being hovering in the main stream of great rivers, only beneath the bridges of the same rivers nigh to the sea (infra primos pontes), and in none other places of the same rivers, the admiral shall have cognizance, and also to arrest ships in the great flotes for the great voyages of the king.”
As it was found that these limitations were not duly observed, the Commons petitioned against the admiral,1 and a statute was passed in 1400 (2 Hen. IV. c. 11) providing a remedy for the party aggrieved by proceedings against him in the Admiralty Court, in cases not clearly within the jurisdiction of that Court, not only against the plaintiff but against the judge and the officers of the Court, by action in the common law courts with double damages; the statute further enacted that the statutes of Richard “be firmly holden and kept and put in due execution.”2
The leading idea in these statutes is the distinction between things done in the realm and on the high seas, and this distinction gave rise to the determined efforts on the part of the common law courts, persisted in through centuries, to prevent the Admiralty Court taking cognizance of contracts made in this country relating to maritime matters, and dealing with them according to the civil law so as to encroach upon the jurisdiction of the tribunals at Westminster and interfere with the institution of trial by jury. Two causes operated, the one to oppose, and the other to aid, the efforts of the Admiralty Court to retain its jurisdiction. The opposition arose from the strong dislike of the people at large to proceedings savouring of the civil law in disregard of the institution of trial by jury; the favouring cause lay in the technical process of the common law courts hampering their procedure and limiting their jurisdiction, so that in maritime cases there was a tendency to resort to the Admiralty Court to obtain a speedy and satisfactory remedy.
As a magistrate, the judicial powers of the Lord High Admiral as defined by patent3 were extravagantly large, and included the power to take cognizance of all causes, civil and maritime, within his jurisdiction; to arrest goods and persons; to preserve public streams, ports, rivers, freshwaters and creeks whatsoever within his jurisdiction, as well for the preservation of the ships as of the fishes; to reform too strait nets and unlawful endings and punish offenders; to arrest ships, mariners,1 pilots, masters, gunners, and any other persons whatsoever able and fit for the service of the ships, as often as occasion shall require and wheresoever they shall be met with; to appoint vice-admirals, judges, and other officers durante bene placito; to remove, suspend, or expel them and put others in their places as he shall see occasion; to take cognizance of civil and maritime laws and of death, murder, and mayhem.2
The patent of the Lord High Admiral also specially gave him the power to act by deputy, and according to the opening paragraph of the Black Book of the Admiralty,1 “When one is made admiral, he must first ordain and substitute for his lieutenants,2 deputies, and other officers under him, some of the most loyal, wise, and discreet persons in the maritime law and ancient customs of the seas3 which he can anywhere find, to the end that by the help of God and their good and just government the office may be executed to the honour and good of the realm”; and according to the documents connected with the Admiralty of Sir Thomas Beaufort, 13 Hen. IV.:4 “In the first place the lieutenant-general shall make oath to the high admiral to do right and due justice to all manners of parties complaining in the court of admiralty, as well to plaintiffs as to defendants, without having to do more for one party than the other, and he ought to make summary and hasty process from tide to tide, and from hour to hour, according to the law marine and ancient customs of the sea, without observing the solemnity of the law, and without mixing law civil with law maritime there where it may be equitable, knowing the right of the parties.” He is further directed to imprison or otherwise punish those putting themselves in opposition to the Admiralty, to appoint deputies, surveyors, and guardians of the office of Admiralty for all the coasts of the sea,5 and hold inquests upon the coasts of the sea touching the law marine, and if there is an Admiral of the North and another of the West, they shall each have a lieutenant-general.
In 1360 occurs the first intimation of the erection of that central maritime tribunal which Edward III. proposed to create, for when John Pavely was appointed capitaneus et ductor of the fleet with disciplinary powers, he acquired, in addition, the right of holding pleas secundum legem maritimam.1 Shortly afterwards in the same year, when Sir John Beauchamp was made Admiral of all the fleets, his patent contained a further power to appoint a deputy in causis maritimis;2 and the judge held his place by patent from the Lord High Admiral, but when there was no admiral, by direct commission from the Crown.3 The earliest extant patent appointing a judge to hear cases in the Admiralty Court, is in the time of Edward IV. (1482). He is empowered “ad cognoscendum procedendum et statuendum de et super querelis causis et negotiis omnium et singulorum de iis quæ ad curiam principalem Admirallitatis nostræ pertinent.”4
In 1509 and subsequent years, Henry VIII. made treaties with France providing for special tribunals to speedily try piracy claims, which had become very frequent. In England, the Earl of Surrey (Lord High Admiral), Cuthbert Tunstall (Master of the Rolls), and Christopher Middleton (judge of the Admiralty Court) were appointed judges. In the commission (1519) appointing them5 the procedure is directed to be, in accordance with the terms of the treaty between Henry VIII. and the French King, speedy and informal, and the same words are employed to indicate this procedure in the patents of the Lord High Admiral of this period. Similar terms are used in the so-called Valencian Regulations, in which the Consuls of the Sea were directed to decide the causes brought before them “briefly, summarily, and forthwith, without the noise or formality of a judgment, looking solely to the truth of the facts, according as has been accustomed to be done after the usage and custom of the sea”;1 and Mr. Justice Story says2 “that the Admiralty of England, and the maritime Courts of all the other powers of Europe, were formed upon one and the same common model, and that their jurisdiction included the same subjects as the Consular Courts of the Mediterranean . . . described in the Consolato del Mare,3 these consular Courts proceeding according to the forms of the civil law, and being regulated by the ancient customs of the sea.”
According to the Valencian Regulations included in the Consolato del Mare, as published in 1494, the jurisdiction of the consuls of the sea extended to “all questions concerning freight, damage to cargo laden on board ship, mariners’ wages, partnerships in shipbuilding, sales of ships, jettison, commissions entrusted to masters or to mariners, debts contracted by the master who has borrowed money for the wants or necessities of his vessel, promises made by a master to a merchant, or by a merchant to a master, goods found on the open sea or on the beach, the fitting out of ships, galleys, or other vessels, and generally all other contracts which are set forth in the customs of the sea.”1
In exercising jurisdiction “over all contracts which had to be determined according to the usage and custom of the sea,” the Court,2 under the Valencian Regulations, allowed oral proceedings up to and including judgment, and in the case of mariners’ wages and bonds they always were oral; but in the case of claims propounded in writing, a copy was transmitted by the officer of the Court to the defendant to be answered within a fixed term either by way of defence or counterclaim, unless the defendant objected to the jurisdiction, in which case, after consultation, the consuls either overruled the objection or remitted the parties to the competent judge; and if the defendant was a stranger the plaintiff could require security to meet the judgment, otherwise the defendant was liable to imprisonment, and the consuls were themselves liable to satisfy the judgment if they had failed to take security and the defendant absented himself. If the cause proceeded, the plaintiff replied or answered the counterclaim, and for the conduct of these proceedings assignations were made every three or more days as convenient. An oath that the action or defence was not based on false pretences could, if demanded, be then put to either party.1 In respect of matters denied, a first delay of ten days was allowed for proof, or four times that period if necessary, that is, four delays from ten to ten days, if an oath was taken that the fourth delay was not for the purpose of protracting the cause, and a reasonable time was granted if required for the production of witnesses who were at a distance. When these periods had elapsed, and the evidence had been published, the consuls, subject to exceptions to the character of the witnesses produced, and subject to the production of written evidence, appointed a day to give judgment, and caused the pleadings and proceedings to be read to mercantile experts, viz., the prud’hommes of the merchants, and to maritime experts, viz., the prud’hommes of the sea, and if their advice was the same they proceeded to pronounce sentence; but if, after the two sets of prud’hommes had consulted together, they did not agree, the consuls decided according to the written customs of the sea under the advice of the prud’hommes of the sea.2 There was no condemnation in the costs of the proceedings unless (after ad 1460) one of the parties had been guilty of bad faith, and the judgment was conclusive unless the party aggrieved appealed within ten days, either orally or in writing, to the judge of appeal to whom the proceedings were transmitted. After taking counsel with a different set of prud’hommes of the merchants and of the sea, the judge of appeal within thirty days gave a final judgment in writing (whether the proceedings were oral or not) and condemned the appellant in the respondent’s costs of the appeal if he confirmed the sentence of the consuls.
Interlocutory proceedings could be carried on before one consul, but a decree or order required to be given by both. After ad 1334 the consular judges acquired the power of enforcing their sentences, and the party condemned had ten days within which to pay or disclose unencumbered moveable goods, otherwise the Court took possession of moveable goods designated by the other party, whether seagoing vessels or other chattels, and sold them, the successful litigant being paid the amount due to him out of the proceeds, together with the costs of execution, on his finding sureties to return the money in case of a prior claim or better right being established; but if the successful party swore that he could not find sureties, proclamation was made that anyone having any claim to the thing sold or the proceeds, should prove his claim within thirty days, and if no claimant appeared the sureties were dispensed with. If the condemned party had no moveables, but had immoveable property, a request was made by the consuls to the competent judge to levy upon such property according to the form of the laws of the city or the custom of the place where the property was situated.
At this period the customs of the sea, as collected in the book of the Consulate of the Sea of Barcelona in 1494, together with the Gotland sea laws,1 called the maritime laws of Wisby,2 and the judgments of Oleron,3 formed a continuous chain of maritime law from the ports of the Baltic, through the North Sea, and along the coast of the Atlantic to the eastern shores of the Mediterranean, and the practice detailed above in the case of the Valencian Regulations may be assumed to indicate generally the mode in which suits in maritime matters were conducted on the continental seaboard. In England the records of the High Court of Admiralty do not begin until 1524,1 and details of the early practice are not forthcoming; but it seems probable that the Praxis Curiae Admiralitatis Angliæ of Clerke2 deals with a state of things that had been in force for a considerable period before the first edition of his work. He states that the actions instituted in the Admiralty Court were commonly between merchants of this country, or foreigners, or masters of ships and mariners, and that all the proceedings in civil and maritime causes were summary.3 The action, he says,4 commenced with the judge’s warrant obtained by the plaintiff, made out in the name of the Lord High Admiral,5 drawn up by the registrar and directed to the marshal to arrest the defendant6 and keep him in custody until he appeared on the day and place specified before the Lord High Admiral or his deputy the judge. The warrant was executed by the marshal, if the defendant resided in London or the suburbs, otherwise by an officer of the city, town, or village where he dwelt, and the defendant was released on giving security by bond for his appearance, the amount for which the sureties were liable being fixed by the sum for which the action was instituted, e. g., five pounds. The warrant was then returned to the judge indorsed with the person’s name who executed it, together with the day and place. On the day appointed the defendant, or his proctor, appeared with his sureties, but if without the sureties the defendant was imprisoned during the pending of the suit, or until he gave security, or unless his oath was accepted. A proctor was then appointed, as in ecclesiastical causes, to carry on the cause, with power to produce sureties and to obtain same from the adverse party. The proctor of the plaintiff exhibited his proxy in writing,7 and if the defendant had not appeared accused him of contumacy. The defendant was then called three times by the marshal, and on non-appearance the judge decreed the penalty of the bond and ordered the defendant into custody until he had satisfied the penalty, of which the plaintiff was allowed a reasonable sum in consideration of the suit being retarded. If the plaintiff did not appear, the defendant or his proctor applied to have the case dismissed with costs and his bond cancelled. The judge then, after the plaintiff had been called three times, either decreed accordingly, or that the plaintiff should not be heard until the costs were paid, or allowed the case to stand over to another court day, or (usually) summoned the plaintiff for a convenient day on pain of final dismissal, with costs. If both parties appeared, the defendant claimed a libel with sureties to be given by plaintiff, and the judge assigned the next court day for both parties to bring in their sureties, the defendant’s sureties being jointly and severally bound by bond to the judge or to the registrar for the appearance of the defendant as often as his presence was required until judgment, for the payment of costs, to confirm the acts of the proctor, to submit to the jurisdiction of the Court, renouncing all privileges and exemptions, and acknowledging themselves indebted to the plaintiff in the sum for which the action was brought, or such smaller sum as the judge fixed, conditioned that if the plaintiff cast the defendant, the defendant would pay the principal sum and taxed costs.1 The plaintiff was required to give sureties that he would prosecute the suit, and if cast pay the defendant’s costs, that he would ratify the acts of his proctor, and appear personally as often as required. The proctors of both parties could protest against the sureties produced by the opposite side as unknown and insufficient, and the principal party entered into a bond, usually in double the sum, in respect of all the matters for which his sureties were bound, and undertook to indemnify them. The plaintiff’s proctor gave in the libel, and asked for a decree, that is, a citation, for the defendant to answer the articles of the libel. If the defendant absconded, his sureties were called upon to produce him under the penalty of their bond, which the judge could either enforce or require further steps to be taken to give the defendant notice of the citation. Similar steps could be taken against the sureties of the plaintiff if he did not proceed. The grant of a commission to examine witnesses within or without the kingdom was applied for if necessary, and at the discretion of the judge the oath of calumny could be administered to either of the parties. The principal party and his witnesses were produced and sworn, as in ecclesiastical causes, to undergo their examination at the time appointed by the judge, under a pecuniary penalty, such as fifty shillings or five pounds, according to the gravity of the case. If a witness on being tendered his expenses refused to appear, a decree for his imprisonment until he should appear was issued, and the judge could commit the proctor, the principal party, or a witness for contempt. Matters of defence and of exception were then proceeded with, and the suppletory oath was usual in maritime causes. After sentence the proctor of the successful party applied to have the sentence put in execution and the costs taxed, but if the defendant had absconded the monition would be addressed to the bail to pay the thing adjudged and costs within a given time or to be taken into custody; or if the defendant lived beyond the sea or had no fixed domicile, so that he could not be admonished, the judge could cite the bail to show cause why the sentence should not be put in execution.
By Title 24 of Clerke’s Praxis, if the defendant could not be personally arrested in a civil cause by reason of being out of the kingdom, or because he had absconded, and he had any goods, wares, ship, or part of a ship, or vessel upon the sea, or within the flux and reflux of the sea, a warrant could be taken out to arrest such goods or such a ship belonging to the defendant debtor, in whose hands soever they were; and upon the attachment of such goods the debtor was cited specially in respect of the goods, and generally all others who had or pretended to have any right to, or interest in, the said goods, to appear on such a day to answer the plaintiff in a certain maritime and civil cause.1
The marshal or other officer of the judge, who arrested the goods, at the same time cited the defendant and all others having or pretending to have any right or interest in the goods to appear, and indorsed a return of the day and place of execution, together with a schedule of the goods arrested.
Proclamation was then made three times for the persons specially and generally cited. On their non-appearance, the judge pronounced them contumacious and declared them to have incurred the first default.
In the case of arresting goods of the debtor in the possession of others, or a debt owed by another person to the debtor, the proceedings were carried on between the plaintiff and the person in whose possession the goods were, as in an ordinary maritime cause for debt up to the fourth default, when, the plaintiff having declared upon and by what contract the debt arose, the goods arrested were by decree directed to be appraised, and the plaintiff, after giving security to answer any person or persons laying any claim to the goods so recovered within the term of the following year, was put in possession of the goods to the value of his demand, or, if not sufficient to answer the whole, as far as they would go towards it.2
To prevent the plaintiff being put in possession of the goods and to obtain their release, the defendant or a third person, to whom the goods arrested belonged, must appear and give security before the first decree in contumacy was pronounced. The goods were then returned to the defendant or the intervener, and the action proceeded as in an ordinary maritime cause for debt. If goods had been taken by enemies or pirates, and afterwards brought into this kingdom, or goods were taken possession of by another, or goods consigned from an agent abroad were detained by another, the owner could obtain a warrant to arrest the goods as his own proper goods, citing the detainers and all others pretending to any interest in them to answer in a civil and maritime cause. The warrant was then executed and returned, and after security had been given by the owner, and the goods had been appraised, they were on the fourth default adjudged to the owner as his own proper goods, and he was put in possession of them. If the goods arrested did not belong to the plaintiff, the owner could plead his possessory right and apply to have the arrest taken off. If the plaintiff justified, the question of the right of possession was tried and possession decreed by a definitive sentence to the person proving his right to the possession; but the party aggrieved or a third person intervening could, on giving security, claim in petitorio, and, proceeding as in other maritime causes, prove his interest in the goods and obtain a decree with costs, the goods in the meantime, whilst the proceedings in possessorio or in petitorio were going on, being sequestrated by the Court, and, if perishable, appraised and sold, the proceeds being handed to the successful party.
In the case of goods arrested by several persons, but not sufficient to answer their respective debts, the creditor first commencing the proceedings was preferred, and if anything remained over it went to the second.
Appeals lay from inferior judges or vice-admirals to the Lord High Admiral and his High Court of Admiralty, and an appeal lay to the King’s Majesty and the Court of Chancery1 from a definitive sentence of the judge of the Admiralty Court, or from an interlocutory decree having the force of one, the application to be made either at the time vivâ voce before the judge, or within ten days before a notary public.
The respondent was then arrested until he gave sufficient bail for his appearance, whilst the judge, the registrar and all others in general were inhibited from further proceeding with the cause. The appellant and respondent then gave bail, as in the Court below, to abide the decree of the Court, to pay costs and confirm the acts of the proctor, and the instrument of appeal was proceeded with as in ecclesiastical causes, substituting imprisonment or pecuniary punishments for sentence of excommunication. If the appeal was not prosecuted within the term allowed, or if in the Court of first instance the proceedings were not terminated within three years, the Court of Appeal or the judge discharged the respondent or the defendant from further attendance with costs.
The mode of exercising jurisdiction in the Admiralty Court was, therefore, “in the manner familiar to . . . all Courts regulated by the civil law (that is) either by an arrest of the person of the defendant if within the realm, or by the arrest of any personal property of the defendant within the realm, whether the ship in question or any other chattel,”1 that is to say, the procedure described by Clerke recognises no distinction between actions in rem and actions in personam, for where the person against whom a warrant was issued could not be found, or lived in a foreign country, and goods were seized (Roscoe’s Ad. Prac. p. 40) by the Court to answer the debt, these goods were not specific goods subject to a lien; but the seizure was made for the purpose of compelling appearance, in a way analogous to the proceedings by foreign attachment under the charters of the cities of London and Dublin. Hence if a foreigner owed money in England, and any ship of his came into a British harbour,1 or any goods of his were found in these realms, they were seizable by his creditors, the process of attachment going not only against goods in the actual possession of himself, his factors or agents, but also against those in the hands of his debtors; but the process was a proceeding in rem in the sense that if the defendant did not appear the “suit could go on without in any way touching the person,”2 and that by the operation of the judgment the defendant was deprived of his property in the chattel,3 unless he appeared, in which case the proceedings went on in the ordinary course as an action in personam.4
During the next few years of the reign of Henry VIII. the Admiralty Court acquired considerable addition to its power in civil suits, for though the trial of criminal causes was withdrawn in 1537,1 there was a stronger assertion by the admiral, in virtue of the royal prerogative, of a jurisdiction in maritime and commercial matters,2 which was expressed in plain terms in his patent, the usual limitations under the statutes of Richard II. being omitted and the clause inserted “statutis in contrarium non obstantibus.” In 1541, by statute 32 Hen. VIII. c. 14, cognizance was expressly given to the Admiralty to try summarily questions of charter-parties and affreightments arising from the negligence of mariners, including the trial of cases on contracts made abroad, bills of exchange, insurance, average, freight, non-delivery of cargo, damage to cargo, negligent navigation, and breach of warranty of seaworthiness.
In the next reign (Edward VI., 1547), the letters patent of the admiral include “any thing, matter, or cause whatsoever done or to be done as well upon the sea as upon sweet waters and rivers from the first bridges to the sea throughout our realms of England or Ireland or the dominions of the same.”
In 1570 the Admiral complained that the common law courts were encroaching, and Queen Elizabeth wrote to the Mayor and Sheriffs of London that this was “very strange” and that they were to forbear from intermeddling with causes arising out of contracts upon and beyond the seas.1 In 1575 a special commission was issued to the Admiralty empowering it to hear cases on charter-parties, bills of lading, bills of exchange, insurance, freight, bottomry, necessaries for ships and contracts binding ships, others being prohibited from taking cognizance of such pleas, and an agreement2 is alleged to have been come to between the Admiralty Court and the common law judges as to the limits of jurisdiction, according to which, after sentence pronounced by the Admiralty Court, no prohibition was to be granted at common law unless applied for within next term, and the judge of the Admiralty Court was to be allowed to appear and show cause against the prohibition, and further that the judge of the Admiralty, according to ancient order, as hath been taken by King Edward I. and his Council, and according to the letters patent of the Lord High Admiral for the time being, and allowed by other kings of the land ever since, and by custom time out of memory of man, may have and enjoy cognition of all contracts and other things, arising as well beyond as upon the sea, without let or prohibition, and the Admiralty Court was to have cognizance of breaches of charter-parties made to be performed upon and beyond the seas according to 32 Hen. VIII. c. 14, though such were made within the realm.1
In 1585, on the death of the Earl of Lincoln, the Lord High Admiral, the question arose whether the judge of the Admiralty Court could sit and decide cases during the vacancy: Queen Elizabeth was advised that he could, as the judge was appointed by letters patent from the Crown, so that he was judge of the Admiralty “be there an admiral or no admiral;” but the Queen, ex abundanti cautelâ, issued a special commission.2
In 1586 the power of the Court of the admiral was strengthened by 28 Eliz. c. 11, which enacted that all the offences therein mentioned “as thereafter should be done upon the main sea, or coasts of the sea, being no part of any county, and out of any haven or pier, shall be tried by the Lord High Admiral;” but the power exercised by the admiral was regarded by the nation as a dangerous unconstitutional usurpation, and in particular in respect of contracts the right of proceeding by process in personam was resisted, so that the jurisdiction asserted by the Admiralty over claims as to the supply of necessaries and materials to ships and over charter-parties was steadily undermined, for unless the contract was actually made or the goods actually supplied upon the high seas, a prohibition issued, as in Cradock’s Case,3 in the reign of James I., where a prohibition was granted on the ground that the suit in personam in the Admiralty by a material man in respect of necessaries supplied to a ship was in respect of a contract made at 5, Katherine’s Stairs, London, in the body of a county, though by the statute of 13 Richard II. the admiral could only meddle with things upon the sea. The rivalry, amounting to jealousy between the Common Law Courts and the Admiralty, was accentuated by the hostility of Sir Edward Coke, who evinced, with considerable show of reason, a dislike to both Chancery and Admiralty. In the controversy, though it may be open to question whether the original statutes of Richard were not directed principally to torts, they were construed literally by Coke, and in his answers to the complaints addressed to the Crown early in the reign of James I. by the Lord High Admiral, against the restraints imposed by the Common Law Courts upon his jurisdiction, Coke cites a number of authorities1 to show that charter-parties, policies of insurance and maritime contracts, though of foreign origin, were not within the Admiralty jurisdiction, and lays down a rule to determine whether or not any given contract is within the Admiralty jurisdiction, viz.: whether the Common Law Courts have exercised, and can exercise, jurisdiction over the same contract, that is to say, whether the party had a common law remedy. The civilians vainly urged, on behalf of the Admiralty, that, consistently with the statutes of Richard, its jurisdiction extended (1) over torts and injuries committed upon the high seas, in ports within the ebb and flow of the tide, and in great streams below the great bridges, that is, that the jurisdiction should depend upon locality; (2) over all maritime contracts arising at home or abroad, that is, that the jurisdiction should depend upon subject-matter; (3) over matters of prize and its incidents; but the Courts of Common Law held that the words “infra primos pontes,” in respect of the water of rivers, applied only to death or mayhem, and not to actions;2 that the words “upon the sea” referred to the water below low-water mark when the tide was out, and up to high-water mark when the tide was in (infra fluxum et refluxum maris), and divided the jurisdiction between the admiral and the common law accordingly, that is, on the sea coast, the water between high and low water mark, when the tide is in, is not in the body of a county,1 and, whilst not attempting to prohibit the Court of Admiralty with reference to wrongs committed on the high seas, they enforced by prohibition2 the construction of the statutes of Richard, so as to limit the jurisdiction of the Admiralty to contracts made upon the high seas, to be executed upon the high seas, in respect of matters in their nature maritime, and even as to prize the exclusive authority of the Admiralty was not finally admitted until the case of Lindo v. Rodney.3
Coke further attempted to destroy the Admiralty jurisdiction over contracts made beyond the seas by alleging that they were cognizable by the Court of the Lord High Constable and Earl Marshal (Court of Chivalry),1 but it would seem that the judicial functions of this Court were limited by stat. 13 Rich. II. c. 2, to contracts touching deeds of arms and war, and the Admiralty Court succeeded in maintaining its right to entertain suits to enforce the judgments of foreign Admiralty Courts, and to proceed in rem upon bottomry bonds executed in foreign parts.2
Coke retired from public life in 1629, and, though a heated contest went on with respect to prohibitions between the Admiralty Court and the common law judges, a compromise was effected in 1632 by the concurrence of the twelve judges of England to certain resolutions, which contained a very favourable interpretation of the extent of the Admiralty jurisdiction, and which, after adoption by the Privy Council, were approved by the King.3 They were to the effect that:—“(1) If suit shall be commenced in the Court of Admiralty upon contracts made, or other things personal, done beyond the seas, or upon the sea, no prohibition to be awarded. (2) If suit be before the admiral for freight, or mariners’ wages, or for breach of charter-parties, for voyages to be made beyond the seas; though the charter-party happen to be made within the realm, so as the penalty be not demanded, a prohibition is not to be granted: but if the suit be for the penalty; or if the question be, whether the charter-party were made or not, or whether the plaintiff did release or otherwise discharge the same within the realm; this is to be tried in the King’s Courts at Westminster, and not in his Court of Admiralty. (3) If suit be in the Court of Admiralty for building, amending, saving, or necessary victualling of a ship, against the ship itself, and not against any party by name, but such as for his interest makes himself a party, no prohibition is to be granted, though this be done within the realm.1 (4) Although of some of those causes arising upon the Thames beneath the first bridge, and divers other rivers beneath the first bridge, the King’s Courts have cognizance; yet the Admiralty has jurisdiction there, in the points specially mentioned in the statute of 15 Richard II. And also, by exposition of equity thereof, he may enquire and redress all annoyances and obstructions in these rivers, that are any impediment to navigation or passage to or from the sea; and also may try personal contracts, or injuries done there, which concern navigation upon the sea, and no prohibition is to be granted in such cases. (5) If any be imprisoned, and upon habeas corpus brought—if it be certified that any of these be the cause of his imprisonment, the party shall be remanded.”
During the Commonwealth the office of Lord High Admiral was abolished and the above resolutions disregarded; but it was subsequently found convenient to define the jurisdiction, and, accordingly, an ordinance (to continue for three years), in 1648, after referring to the public inconvenience to trade through “the uncertainty of the jurisdiction in maritime causes,” enacted “that the Court of Admiralty shall have cognizance and jurisdiction against the ship or vessel with the tackle, apparel, and furniture thereof, in all causes which concern the repairing, victualling, and furnishing provisions for the setting of such ships or vessels to sea, and in all cases of bottomry, and likewise in contracts made beyond the seas concerning shipping or navigation or damages happening thereon, or arising at sea in any voyage; and likewise in all cases of charter-parties, or contracts for freight, bills of lading, mariners’ wages, or damages in goods laden on board ships, or other damages done by one ship or vessel to another, or by anchors, or want of laying of buoys, except always that the said Court of Admiralty shall not hold pleas, or admit actions upon any bills of exchange, or accounts betwixt merchant and merchant or their factors.”1
This ordinance was made perpetual in 1654, and three judges were appointed to preside over the Court;2 but it fell with the other Acts of the Commonwealth upon the restoration of Charles II.
The common law judges seem to have discovered that the Crown and the Admiralty had gained a decided advantage in the interpretation put upon the statutes of Richard II., and accordingly the above resolutions were treated as not being a correct exposition of those statutes, and also as a nullity by reason of their not being an adjudication on any particular case before the Court.3 In spite of the presentation of numerous petitions in support of the Admiralty jurisdiction and of the efforts of the judge of the Admiralty Court, Sir Leoline Jenkins,4 in the reign of Charles II., the effect of the denial of the authority of these resolutions, coupled with the refusal to allow parties to proceed in Admiralty who were summoned at common law to answer as to maritime matters, and the issue of prohibitions to the Admiralty Court against proceeding on any contract made on land to be performed at sea, or made at sea to be performed on land—that is, not wholly and exclusively done on the sea—so limited the actual jurisdiction in Admiralty at this time that Sir Matthew Hale says5 that it “is confined by the laws of this realm to things done upon the high sea only: as depredations and piracies upon the high sea, offences of masters and mariners upon the high sea; maritime contracts made and to be executed upon the high sea; matters of prize and reprisal upon the high sea; but touching contracts, or things made within the bodies of English counties, or upon the land beyond the sea,1 though the execution thereof be in some measure upon the high sea—as charter-parties, or contracts made even upon the high sea—touching things that are not in their own nature maritime, as a bond or contract for payment of money, &c., these things belong not to the admiral’s jurisdiction; and thus the common law and the statutes of 13 Rich. II. c. 5, 15 Rich. II. c. 3, confine and limit their jurisdiction to matters maritime, and such only as are done upon the high sea.” On the other hand, Chief Justice Holt speaks of the common law as “too severe against the Admiralty.”2
Another mode of ousting the Admiralty jurisdiction in contract was that of putting down by prohibition the practice of the Admiralty Court, which, in order to get cognizance of a cause, feigned that contracts really made on land were made at sea. This was in fact only imitating the fictitious venue introduced at common law to remove the technical difficulty, which embarrassed the common law Courts, arising from the necessity of laying a venue to every action. In this way a concurrent jurisdiction was obtained by the Courts of common law in all cases of marine contracts as the conusance of contracts and other things done upon the sea was “made triable at the common law, by supposing the same to have been done in Cheapside,”3 and as the locality of the matter or contract was not essential to the merits, the fiction was not traversable. Blackstone (in whose time the jurisdiction in Admiralty, besides being excluded within the body of a county, only extended to causes of action, in their nature maritime, arising on the high seas)4 observes5 that “it is no uncommon thing for a plaintiff to feign that a contract, really made at sea, was made at the Royal Exchange, or other inland place, in order to draw the cognizance of the suit from the Court of Admiralty to those of Westminster Hall.”
In the exercise of the jurisdiction in prize causes, the great reputation of Lord Stowell,1 who was appointed judge in 1798, drew public attention to the Admiralty Court.2 Still, in respect of the instance Court, Browne, 3 writing in 1802, is driven to admit that the Admiralty jurisdiction in contract was limited to marine contracts, that is, contracts (1) made upon the sea, (2) whose consideration was maritime,4 and (3) not ratified by deed, nor under seal; and, with reference to personal contracts, he says that “at present the Admiralty acts only in rem, and no person can be subject to that jurisdiction but by his consent, expressed by his entering into a stipulation.” He then refers to Keble5 for the statement “that without a stipulation the Admiralty has no jurisdiction at all over the person”; and he quotes Godbolt6 that “the first process in the Admiralty is against the ship and goods, and the libel must not be against the person.” He adds the observation of Mr. Justice Buller—who accounts for the Admiralty being allowed to proceed on an hypothecation bond sealed abroad by the fact that the common law could give no remedy, there being no personal covenant for the payment of the money—that “in the struggles between the Court of Admiralty and the common law Courts respecting the extent of their respective jurisdictions, the common law Courts have said, that if the parties have bound themselves to answer personally, the Admiralty cannot take cognizance of the question”;1 and in a suit in the Admiralty by one part-owner to oblige another to sell a ship, Chief Justice Lee said (on an application for a prohibition), “that Court has no such power, for that would be proceeding in personam.”2 Browne supplements this by further admitting3 that “the Admiralty has in a great measure dropped its claim to taking cognizance of charter-party and freight, and suits by material men, and almost all other proceedings upon contract, except those for recovery of seamen’s wages, or enforcing bottomry bonds”; in a word, it may be said that personal contracts had ceased to be cognizable in Admiralty, and that the principle contended for by the civilians (viz., that, in contract, the jurisdiction ought not to depend upon locality, nor upon the object affected, but upon the subject-matter, that is, whether the contract, though made upon land, or affecting the person, was in its nature maritime) had essentially failed;4 and Browne sums up5 the jurisdiction in the instance Court of Admiralty at the beginning of the nineteenth century as “confined in matters of contract to suits for seamen’s wages, or those on hypothecations; in matters of tort to actions for assault, collision, and spoil; and in quasi-contracts to actions by part-owners for security, and actions of salvage”; but where the ship had been sold for other claims, and the money was in the registry, so that the master could not raise money on the bottom of the ship to satisfy demands which had been legally incurred, the practice had grown up of allowing the claims of material men and shipwrights, and even of the master himself, to be paid out of the proceeds.6
A decision, however, of the Privy Council,1 in the year 1835, declared this practice illegal, and so took away the last vestige of Admiralty jurisdiction in the case of necessaries. From that date the material man, who in early times could maintain a suit against the ship, had no longer any locus standi in the Admiralty Court. His only remedy was at common law, and there, unlike the mortgagee, whose position was that of a secured creditor, the material man could proceed only against the shipowner, not against the ship.2
These restrictions on Admiralty jurisdiction, and the inconvenience caused to litigants by the absence of any original jurisdiction over contracts under seal—so that the Court was unable to entertain questions of title or of mortgage, with the result that though the ship was under arrest or its proceeds in the registry, the rights of mortgagees were often adjudicated upon in a different cause in a different Court, together with the difficulties arising out of claims for salvage, questions of damage, demands for towage, which, if relating to matters within the body of a county were solely cognizable in the Courts of Common Law, and if proceeded with in the Admiralty Court subjected that Court to prohibition—led, in 1840,1 to the passing of the first of the Admiralty Court Acts, 3 & 4 Vict. c. 65, the object of which was to give jurisdiction in civil matters to the Admiralty in the body of a county, prevent the Court being prohibited, and by restoring the ancient jurisdiction of the Admiralty, give litigants the option of proceeding by the more summary process of that Court, instead of compelling them to resort to an action at law.
[1 ]This essay forms part of Chapters II and III of “The King’s Peace; a Historical Sketch of the English Law Courts,” 1895, pp. 68-72, 77-85 (London: Swan Sonnenschein & Co.). The earlier history of the Curia Regis, up to the period of Henry II, is dealt with in Mrs. Green’s Essay (ante, Vol. I, No. 4).
[2 ]1835-1904. B. A. Trinity College, Cambridge; Barrister of the Inner Temple, 1858; Queen’s Counsel, 1874; Bencher of the Inner Temple, 1877; Master of the Library, 1897.
[3 ]Hall’s Antiquities of the Exchequer.
[1 ]Foss’ Judges, vol. ii. p. 4.
[1 ]Selden Society, vol. 3, p. xviii. Foss’ Judges, vol. ii. p. 160.
[2 ]Selden Society, vol. 3, p. 79.
[3 ]Dugdale’s Chronica Series, fol. 11.
[4 ]28 Edward I., ad 1300.
[1 ]47 Henry III. Coram Rege Rolls de tempore Ph. Bassett Justiciarii Angliae; Madox, vol. i. p. 100.
[2 ]Stubbs’ Constitutional History, vol. i. p. 503.
[1 ]Stephen’s History of the Criminal Law, vol. i. p. 99.
[1 ]Foss’ Judges, vol. ii. p. 155.
[1 ]28 Edward I.
[2 ]Dugdale, Chronica Series, fol. 32.
[1 ]Institutes, vol. iv. p. 78.
[2 ]“Trial of Regicides,” State Trials, vol. v. p. 993.
[3 ]Foss’ Judges, vol. iii. p. 22.
[4 ]Ibid., p. 195.
[1 ]Ibid., vol. iv. pp. 21, 134.
[2 ]Ibid., p. 190.
[3 ]Ibid., p. 226.
[4 ]Ibid., p. 390.
[5 ]Foss’ Judges, vol. iii. p. 22.
[6 ]Ibid., p. 23.
[7 ]25 Edward III.
[8 ]24 Edward III.
[9 ]1 Edward IV. c. 2. Reeve’s History, vol. iii. p. 9.
[1 ]This essay forms chapters I-IV, vol. I, Part Second, pp. 321-351, of “The Equitable Jurisdiction of the Court of Chancery,” 1846 (London: V. & R. Stevens and G. Norton).
[2 ]1787-1850. Glasgow University. M. A. 1805; Barrister of the Inner Temple, 1811, Bencher, 1835, and Reader, 1845.
[3 ]Int. al. Lord Coke, 10 Rep. 108 a. “The perfection of reason,” ib. 3 Rep. 13 b. So Celsus, Dig. i. l. 1, pr. says. “Jus est ars boni et æqui.”
[4 ]“Non possunt omnes articuli singillatim, aut legibus, aut senatus consultis comprehendi; sed cum in aliqua causa, sententia eorum manifesta est, is, qui jurisdictioni præest, ad similia procedere, atque ita jus dicere debet,” Dig. i. 3. 12. But when new cases arose, according to the language of the Jurisconsults of later times. “De his quæ primo constituuntur, aut interpretatione aut constitutione optimi Principis, certius statuendum est.” ibid. l. 1 & 11.
[5 ]Bracton, who wrote whilst the Common Law was yet being formed (non scripta), adopting the maxim which he found in the Roman law, “In omnibus, maxime tamen in jure, Æquitas spectanda est,” Dig. L. 17. 90, lays down, that the Common Law Courts might be guided by equity, even in questions of strict law; lib. 2, c. 7. fol. 23 b; lib. 4, fol. 186; and see Co. Litt. 24 b; 6 Co. 50 b; 1 Bla. Comm. 61, 62; ibid. 3. 429; and I Eden, 194; Judgment of Sir T. Clarke, M. R., in Burgess v. Wheate. See Additional Note to chapter I, p. 326, Spence, Equitable Jurisdiction of the Court of Chancery.
[1 ]The Year Books, or authorized reports of judicial decisions, commence in the reign of Edw. I. Bracton records the decisions of time of Hen. III.
[2 ]See Hunt’s argument for the Bishops’ right, 145-8. Parkes’ Hist. C. Chan. p. 236. Professor Millar, in his Historical View of English Government (Book ii. c. vii.) observes, that “Law and Equity are in continual progression, and the former is constantly gaining ground upon the latter. Every new and extraordinary interposition is by length of time converted into an old rule. A great part of what is now strict law,” adds the Professor, “was formerly considered as equity; and the equitable decisions of this age will unavoidably be ranked under the strict law of the next.”
[3 ]“Juris scrupulositate nimia que subtilitate.” Dig. xxviii. 3. 12; et. v. supra.
[4 ]The subject of fidei commissa, or Trusts, will be separately considered.
[1 ]It has been matter of dispute in modern times whether Hadrian ever issued such an Edict,—see the notes to Milman’s Gibbon, viii. p. 20; but, in fact, this compilation of Prætorian law, which was made in his time, and no other, continued to be of authority down to the time of Justinian.
[2 ]Spence, Equitable Jurisdiction of the Court of Chancery, p. 77.
[3 ]Cod. Just. i. 14. 1; ibid. i. 14. 9; supra, p. 77.
[4 ]See Gaius, quoted Milman’s Gibbon, viii. p. 23. The Emperors before this time frequently sat to hear causes referred from the inferior tribunals, (Sueton. Domit. c. viii.); particularly where the rigor of the law required to be tempered by equity, ex bono et æquo, (Sueton. Claud. c. xiv.); taking to them assessors, or sitting in consistory, Dion. Cass. Tiberius, lib. lvii. et v. supra.
[5 ]This, as we shall presently see, was in the reign of Edw. III.
[1 ]“Bona fides quæ in contractibus exigitur æquitatem summam desiderat.” (Dig. xvi. 3. 31; xix. 2. 24; xix. 1. 50;) “Omnia quæ contra bonam fidem fiunt veniunt in empti actionem,” (Dig. xix. 1. 1, 2,) “Nihil magis bonæ fidei congruit, quam id præstari quod inter contrahentes actum est; quod si nihil convenit, tunc ea præstabuntur quæ naturaliter insunt hujus judicii potestate,” (xix. 1. 11, 1, et seq.). Natural reason was an acknowledged principle of decision in questions bonæ fidei (ib. v. 3. 36, 5); but it was considered, that from the very nature of a sale, the buyer and seller should be at liberty to circumvent each other as to price, “In pretio emptionis et venditionis, naturaliter licere contrahentibus se circumvenire, Pomponius ait,” Dig. iv. 4. 16, § 4.
[2 ]Dig. xviii. 5. 3.
[3 ]Dig. xix. 1. 11, 5.
[4 ]Dig. xxi. 1. 1, 2.
[5 ]Dig. xix. 1. 6, 9.
[6 ]“Quum iter excipere deberem, fundum liberum per errorem tradidi, incerti condicam ut iter mihi concedatur,” Dig. xii. 6. 22, § 1, &c. This remedy was not adopted by the framers of our Common Law.
[7 ]Voet. in Pandect. i. p. 193 a. § 3.
[8 ]Dig. xix. 1. 25; xvi. 1. 29, pr. and § 28 & 46. tit. 2. 54, 1, &c.
[9 ]“Quæ dolo malo facta esse dicentur, si de his rebus alio actio non erit, et justa causa esse videbitur, judicium dabo, ait Prætor,” Dig. iv. 3. 1, pr.; Cod. Just. ii. 21, 2; Dig. xix. 5. 5, 3. It was sufficient that the remedy were doubtful, Dig. iv. 3. 7, 3; et v. Heinec. in Pandect. § 459-462. This extraordinary remedy was given against the heir if the succession had derived any benefit from it. Dig. iv. 3. 26.
[1 ]According to Labeo, if a restitutio in integrum would afford complete redress, it was to be resorted to, and not an action. Dig. iv. 3. 1, 6.
[2 ]“Magis mixtum imperium quam jurisdictio dominatur,” Voet. in Pandect. tom. i. p. 178.
[3 ]“Sub hoc titulo, plurifariam Prætor hominibus vel lapsis vel circumscriptis subvenit, sive metu. sive calliditate, sive ætate, sive absentia inciderunt in captionem, sive per status mutationem aut justum errorem,” Dig. iv. 1. 1 & 2. Voet. gives the following description of this jurisdiction. “Est enim remedium extraordinarium, quo Prætor vi sui officii et Jurisdictionis, naturalem secutus æquitatem, homines læsos aut circumventos ex justa causa in pristinum statum reponit, perinde ac si nullum negotium damnosum gestum esset. Magis mixtum imperium quam Jurisdictio dominatur, unde soli majores, et non municipales magistratus, restitutionis faciendæ potestate gaudent; multo que minus Pedanei Judices, proprie dicti, omni carentes jurisdictione,” Voet. i. p. 178; and see Dr. Phillimore’s Preface to Burn’s Ecclesiastical Law, p. xiii.
[1 ]After the Court of Chancery had become established, and its jurisdiction in the correction and extension of the law had become reduced to settled and well understood principles, many of its doctrines were adopted by the Courts of Law, and now form part of the Common Law; but the text refers to the Common Law as it stood when the Court of Chancery rose into existence.
[2 ]The exercise of this prerogative by any general regulations, affecting the law itself, was excluded; that required the assent of the Great Council; v. supra, p. 226.
[3 ]So it will be remembered, though the writs for the election of representatives to Parliament issued from and were returned to the Chancery, the Commons in their House established the right of determining as to the validity of the returns; see Lord Campbell’s Lives, Lord Ellesmere, ii. p. 221; Lord Shaftesbury, iii. p. 314.
[4 ]Supra, p. 240.
[1 ]See The Obsolete Jurisdiction of the Court of Chancery, Spence, Equitable Jurisdiction of the Court of Chancery.
[2 ]V. supra, p. 73.
[3 ]Hallam, Mid. Ages, iii. 208.
[4 ]Of the Great Council, v. supra, p. 263, et seq. The term “Parliament” is first met with, 42 Henry III. Report of Lords’ Comm. 1823, p. 99.
[1 ]See Lords’ Report, 1823, p. 169. 174, &c.
[3 ]Sir M. Hale—Hallam, Mid. A. iii. 213; Palgr. Council, p. 20. In the reign of Edward II. we find “Responsiones factæ coram Rege et magno concilio in parliamento Regis,” Rot. Parl. i. p. 289. The Lords in their Report, p. 268, conclude that the council which gave the answers to petitions, was the select council.
[2 ]Reeves, i. p. 62.
[4 ]Lords’ Report, 1823, p. 297.
[5 ]Palgr. Counc. p. 64. temp. Edward III. Rot. Parl. 9 Henry IV. p. 613; Lords’ Report, 1823, p. 360.
[6 ]Co Litt. 304, a & b.
[7 ]V. int. al. Stat. of the R. i. 109, 20 Edward I. and Report of Committee of the Lords, 1820, ed. 1823, p. 174, p. 451.
[8 ]See Palgr. Council, p. 20.
[9 ]See the Treatise of the Masters, written temp. Eliz., Harg. Law Tracts, 1, p. 298. The Queen’s Council and the Attorney and Solicitor-general appear also to have been members, ib. Indeed down to the time of Charles I. it was considered as inconsistent with the duties of the Attorney-general, who was called by writ to attend the House of Lords, that he should be a member of the House of Commons, Clarendon, Rebell. i. 210, ed. 1721.
[1 ]Report of the Lords’ Committee, 1823, p. 317. 451. Though a little beside the subject, it tends to show how high was considered the honor of serving the king, in any capacity, that he could find persons who did not blush to serve the office of Maris-callus Meretricium in Hospitio Regis. temp. Edward II. Lord Lytt. Henry II. iii. 353.
[2 ]Hardy, Introd. to C. R. p. xxvi.
[3 ]Sir H. Nicholas, Pref. to the proceedings of the Privy Council, p. iii.
[4 ]Reeves, vol. ii. 415; 4 Inst. 61; The stat. 31 Edward III. st. i. c. 12, notices these several chambers of council.
[1 ]Hardy, Introd. to Close Rolls, p. xxvi. Sir H. Nicholas, Privy Council, Pref. p. xxx. Seton.
[2 ]Sir F. Palgrave, Council p. 20, note (k) p. 118.
[3 ]Introduction to Close Rolls, p. xxv.; and see Lord Chief Justice Tindal’s Judgment, Regina v. Mills, in Dom. Proc. Jurist, vii. p. 913.
[1 ]See Lord Strange’s Case, Palgr. Counc. p. 9; ib. 93.
[2 ]Regulations as to the council, &c. 8 Edward I; Ry. Pla. Parl. 442; Legal Jud. in Chancery, 27, 28; Palgr. Council, p. 22. 91. 134; Reeves, i. p. 63.
[3 ]Palgr. Council, 90. 134; the latter writ brought the Cause and the Body of the Defendant, to be dealt with by the council itself.
[4 ]Palgr. C. p. 19.
[5 ]See the Regulations temp. Henry VI. Rot. Parl. iv. p. 201.
[6 ]Palgrave, C. p. 87.
[7 ]Palgrave, C. p. 37.
[1 ]See Parkes’ History of the C. of Ch. p. 37. 39, 43.
[2 ]Rot Parl. iv. 343, et v. ib. 201; Hallam, M. A. 111-216.
[3 ]The title of the earliest Rolls of Parliament extant, viz., 18 Ed. I. vol. i. p. 15, is—“Placita coram Domino Rege et eius consilio ad Parliamenta sua;” and see 1st Report of Lords’ Committee, 1823, p. 170. In the reign of Henry IV. these matters were commonly referred to the Council to report upon, Rot. Parl. 9 Hen. IV. p. 613; Lords’ Report, 1823, p. 360.
[4 ]Legal Judicat. p. 26. An account of the receivers and triers of petitions (who were nominated by the king, Palg. C. p. 125) is given in the 2d volume of Reeves’s Hist. of the Common Law, p. 26, 407, et v. ib. 415. The master or chief clerks of the Chancery were frequently nominated for this purpose.
[5 ]V. int. al. Mem. in Scacc. p. 30; Rot. Parl. iii. 61-2, temp. Rich. II.
[1 ]See Cruise, Dig. cited in the next Note, and Sir H. Nicholas’s Proceedings Privy Council, Pref. p. xxv.
[2 ]Cruise, v. p. 2.
[3 ]Reeves, vol. ii. p. 409; Sir F. Palgrave has ample details on this subject, Council, p. 30. 64. 72. 119. 124, temp. R. II. Ed. I. Ed. II. Ed. III. Hen. IV. particularly as to the Proceedings before “Special Auditors of Errors,” deriving their authority from the Great Council, p. 119.
[4 ]Hallam, M. A. iii. 215; Palgrave, C. 64. See the standing order, Dom. Proc. 9th June, 1660; Lords’ Report, 1823, p. 449, note. The Commons, 1 Hen. IV. acknowledged that they had no right to interfere in judicial matters, Rot. Parl. iii. 427; Lords’ Report, 1823, p. 360.
[5 ]The Masters in Chancery were doomed to descend still lower. “Doctor Barkley,” says the Author of the Treatise of the Masters, (Harg. L. T. p. 298,) “a Master of the Chancery, in the 18th of Elizabeth, sitting in the Parliament House, as the manner is, upon occasion of speech amongst the Lords of certain officers to have certain privileges, he, without asking leave, got up and entered into a speech of desiring that the Masters of Chancery might also be comprised in the said privilege then on foot. This request came so unseasonably, and was so inconsiderately propounded by the said Doctor, as the Lords in general took offence thereat,—some saying that whilst the Queen’s learned Council were silent it were great presumption in him, being one inferior to them [sic], to be so busy. So upon the next day the Serjeant, Attorney, and Solicitor took place above the Masters in Chancery there, which before time had never been done; and ever since, not only they, but Serjeants-at-Law also, do it generally at all public meetings, upon this reason that they took place before the Attorney and solicitor,” (Ibid. abridged.)
[1 ]It is supposed that the king’s chapel was used for keeping the records, and that it was from this custom, partly, that the Chancellor, who had the care of the king’s chapel, came to be so much connected with the diplomas and archives, Introd. to C. R. p. xxvii. note, and Spelman hac Voce.
[2 ]In the time of Edward IV., when the Chancery was, as we shall see, completely established as a court of extraordinary jurisdiction, all the judges of England affirm that the Chancery, King’s Bench, Common Pleas, and Exchequer, are all the king’s courts, and have been so time out of mind, so that no man knoweth which is most ancient, 8 Co. Præf. xvi. Lord C. J. Hobart also treats the Court of Chancery as a court of equity, and the courts of law, equally as fundamental courts. In the 11th year of James I. it was resolved by the Lord Chancellor, Chief Justice of England, Master of the Rolls, and two justices, that the king cannot grant a commission to determine any matter of equity (i. e. to constitute a new tribunal); but it ought to be determined in the Court of Chancery, which hath jurisdiction in such case, out of mind, and had always such allowance in law, 12 Rep. fol. 114, Earl of Derby’s case. But neither Glanville, who wrote in the reign of Henry II., Bracton in the time of Henry III., or Briton in the time of Edward I., and who expressly treats of courts, nor Fleta, nor Hengham, nor the Book entitled “Diversity of Courts,” mentions the Court of Chancery as a court of equity. The only extraordinary jurisdiction referred to in these early writers, is that which was exercised by the king himself, advised, no doubt, by his council, or the Chancellor the chief member.
[1 ]M. Par. ad. Ann. 1231, p. 312.
[2 ]Lord Lytt. Henry II., vol. ii. 480; Parkes, 42; 3 Bla. Com. p. 51, note; and Introd. to Close Rolls, by Hardy, p. xxviii., note, Sir H. Seton, p. 8.
[3 ]Discourse of the Judicial authority of the M. R. page 86. “Prout de jure et Gratia Curiæ videritis facienda,” 5 Edward I.; et ib. p. 87. In the 12 Edward I. a writ directed by the king to I. de Kirkby clerico suo, commands him to do “quale de Jure et gratia Cancellariæ” ought to be done.
[4 ]Discourse, &c. prf. p. cxii.; Petition of the Commons, 45 Edward III. 1 Roll, Ab. 372; Introd. to Close Rolls, p. xxviii. The Court of Chancery appears at this time to have been considered as the proper tribunal for a widow to obtain her dower, Mem. in Scacc. Y. B. vol. i. p. 38, and see Lord Campbell’s Lives, i. p. 186-7.
[1 ]Claus. Ann. 8 Edward I., Ryl. Plac. Carl. 442; Legal Jud. 27, 28; Hardy, Introd. C. R. xxviii.
[2 ]See Lives of the Chancellors, i. p. 206 to 209; and see Legal Jud. in Ch. p. 11, Rot. Parl. 18 Edward II. No. 43. i. p. 428. “Sequator in Cancellaria et ibi habeat quod justitia, &c.”
[3 ]3 Bla. Com. 256, Harg. L. T. 299.
[4 ]Leg. Jud. p. 18; Coke’s Entries, 419 d. 422.
[5 ]As under 11th Edw. I. Stat. of Acton Burnell, Leg. Jud. p. 11.
[6 ]Legal Judicature, p. 9. 17; Ld. Ellesmere, Treatise on Co. of Ch. 27. 29; Coke’s Entries, 438. 678; Palgr. Council, 95, et v. Reg. Lib. A. 1566-7, fo. 91.
[7 ]Fitz N. B. Crompton, 47 a. We find the remains of this jurisdiction as regards copyholds, temp. Ja. I. Vin. Abr. iv. 385.
[1 ]Crompton, 47 a.
[2 ]Discourse of the judicial authority of M. R. p. 4; Legal Jud. in Ch. p. 15, and Documents there cited; 4 Inst. 79. Some of these authorities relate to a later period, but there is no reason to believe that any of the matters above referred to were of subsequent introduction.
[3 ]Sir. F. Palgr. Council, p. 92.
[4 ]Sir F. Palgr. Council, p. 95. Recognizances were also, as we shall see, imported into the extraordinary jurisdiction, and made use of to bind the parties to do right and justice.
[5 ]Int. al. Reg. Lib. B. 1571 to 7 A. fo. 2, Temp. Eliz. A. 1573, fo. 27.
[6 ]Introd. to Close Rolls, p. xxix. Seton, p. 9; Calendar of proceedings in Chancery by the Record Commissioners, i. fo. 1, 2, 3, 68; a great part of this Jurisdiction was transferred to the Court of Augmentations by 33 H. VIII. c. 39, Seton, p. 34.
[7 ]1 Roll. Ab. 372. It was conceded, 39 Hen. VI., that the king had the option to sue in Chancery or at Common Law, Brooke, Prerog. 45, et Rot. Parl. 45 Edw. III. No. 24; Vin. Abr. iv. 380.
[8 ]3 Bla. Comm. 49.
[9 ]Ld. Ellesmere, p. 45.
[1 ]The stat. 20 Edw. III. c. 6, (Stat. of the R. vol. i. p. 305,) gave a summary jurisdiction to the Chancellor and Treasurer in respect of misdemeanors of officers; 36 Edw. III. c. 9, gave a similar jurisdiction to the Chancery; the 27 Edw. III. c. 1, enforced by 38 Edw. III. c. 2 and 3, gave a summary jurisdiction to the Court of Chancery, and the Council, and the King’s Justices, over those who sought to impeach the judgments given in the king’s courts by foreign appeals. Lord Coke considered, that in these cases the Chancellor was bound to proceed according to the course of the common law, and that he could not examine the parties; but Lord Coke gives no reason or authority, 4 Inst. 81. The Parl. Roll, 14 Edw. III., and Cal. ii. p. 10, would rather lead to the opposite conclusion.
[2 ]Introd. to Close Rolls, p. xxviii. The Writ (22 Edw. III.) is there stated; and in Legal Judicature in Chancery, p. 30.
[3 ]See Legal Judicature in Chancery, p. 31.
[1 ]Sir F. Palgrave, Council, p. 64, 35 Edw. III. Ibid. p. 67, 40 Edw. III. This matter commenced by a complaint made by Lady Audley, suing without her husband against her father-in-law, to the king in parliament: the object was to obtain the specific performance of a deed of covenant for settlement of lands made on her marriage; all parties submitted themselves to the king and his council, ib. p. 69. This whole proceeding was wholly at variance with the doctrines of the common law, both as regards the institution of the suit by the wife alone, and the relief sought—specific performance of an agreement.
[2 ]Thus the Parliament Roll, 14 Edw. III. after taking notice of an ordinance touching the Priory of West Sherborne, &c., adds, that if anything should be done contrary to that ordinance, the Chancellor of England should have power to hear the complaint by Bill, “and upon this to proceed in the same manner as is usually accustomed to be done daily on a writ of subpœna in Chancery,” Discourse, &c. Præf. p. cxi. and see the petn. of the Commons. 45 Edw. III. 1 Roll Abr. 372, from which it appears that this also was the course in proceedings before the council.
[3 ]By an entry in the Close Rolls, 37 Edw. III. cited in the Introd. to Close Rolls, p. xxx. it appears that the mandate of the subpœna was in these terms, “Quod esset in Cancellaria Regis, ad certum diem, ubicunque foret, ad ostendendum si quid pro se haberet, vel dicere sciret, quare, &c., et ad faciendum ulterius quod curia considerarit;” and see Palgr. Coun. p. 41.
[4 ]Sir or Master John Waltham, whom the Commons, temp. Henry VI., accused of having first invented this writ, was not Master of the Rolls till the 5th year of Rich. II. (1381 to 1386,) Palgr. C. p. 40; he was Master of the Rolls and Keeper of the Seal, but never Chancellor, Discourse, p. 95, Hardy’s Catalogue, p. 43-6.
[1 ]Spence p. 385.
[2 ]Introduction to Close Rolls, p. xxviii. By the instructions of Edw. IV. (Rot. Claus. 7 Edw. IV.) to Rob. Kirkham, M. R., on delivering to him the Great Seal, he was ordered to determine according to equity and good conscience, and to the old course and laudable custom of the court, taking advice of the king’s justices in case of difficulty, v. supra, chap. iii. et v. Introd. to Close Rolls, p. xxxi. Legal Jud. in Ch. 37. 112; Y. B. 4 Edw. IV. 8. “Mes quant al matters de conscience il (le Chancellor) eux determinera solonque conscience,” Y. B. 9 Edw. IV. 14; Crompt. 46 b.; et v. ib. fo. 45.
[3 ]V. supra, p. 223, et v. inf. tit. “Equity and Conscience.”
[4 ]“It is as old as Bracton,” Sir T. Clarke, M. R., Burgess v. Wheate, 1 Eden, 194; v. supra, p. 321.
[5 ]Lord Coke, Com. Journ. i. p. 574, ad 1621, asserted that there were about 400 causes in a year in the Court of Chancery at this time; if this be so, he must have had some records or materials to refer to which are now lost, or at least have not yet been brought to light.
[6 ]Fleta seems to have considered it as almost imperative that a dignified ecclesiastic should be appointed; his words are, “Quod uno viro provido et discreto, ut Episcopo, vel clerico magnæ dignitatis, debet committi, simul cum curâ majoris sigilli,” Lib. ii. c. 13, p. 75. This is very remarkable, for the functions of the Chancellor, as described by Fleta, were wholly connected with the common law.
[1 ]4 Inst. 79; one of the instances may be seen in the Year Book, 17 Edward III. fo. 14.
[2 ]Hardy’s Catalogue, p. 40.
[3 ]Rot. Parl. 45 E. III. No. 15, p. 304; 4 Inst. 79; and see Lord Campbell’s Lives of the Chancellor’s.
[4 ]It appears from Dugdale’s and Hardy’s Catalogues, and from the 3 R. II. to 3 R. III. all the Chancellors were ecclesiastics.
[5 ]Repeated 38 Edward III. c. 9; and as regards criminal matters, by 42 Edw. III. c. 3. There is a petition, 25 Edward III. Rot. Parl. vol. ii. p. 239; Palgrave, 35, 36, praying to a similar effect, to which the king gave his sanction.
[1 ]Parkes’s History of the Court of Chancery, p. 34.
[2 ]By stat. 1 Edw. III. stat. 2, c. 15; 2 Edw. III. c. 6; 18 Edw. III. stat. 2, c. 3, and 31 Edw. III. c. 1.
[1 ]These statutes were extended by 8th Hen. VI. c. 9, § 2, 3 and 6, by which the Justices were empowered to give restitution, and treble damages were given. By 31 Eliz. c. 11 and 21 Jac. I. c. 15, the provisions of these statutes were extended. But the law (as Mr. Hallam has observed, Mid. Ages, iii. p. 246-250) permitted a person to enter upon lands of which he had been disseised. The learning as to what circumstances deprived a man or his heirs of this right, fills several pages of Lord Coke’s 1st Institute, 23-76; and Littleton has a chapter on the subject, Lit. iii. c. 6, “Discents which toll entries;” but as has already been noticed, Spence, p. 221, the doctrine was of Roman original.
[2 ]By the answer to the petition it would rather appear that it was the Common Law Court that was referred to on this occasion.
[3 ]5 Rich. II. No. 17, 4 Inst. 79, Rot. Parl. iii. p. 100; the answer is in page 102. Special Commissions of Oyer and Terminer were resorted to in some cases, as will be noticed hereafter.
[4 ]The Count of the palace was specially charged by Charlemagne to take charge of the interests of the poor, Cap. Car. Mag. et Ludov. iii. § 77.
[5 ]M. Par. ad. ad 1258.
[1 ]By the statute 4 Hen. VII. c. 12, § 2, parties aggrieved by default of Justices of the Peace were allowed to complain to the King or the Chancellor.
[2 ]See their petitions, 3 Rich. II. No. 49, Rot. Parl. III. p. 44, Parkes, p. 39; like petition, 7 Rich. II. Introd. to Clo. Rolls, p. xxix.
[3 ]There were two lay Chancellors (2 & 5 Rich. II.) at the beginning of this reign, but from the 3d year to the end of this reign (with the short exception of the appointment of Sir M. de la Pole, 6 Rich. II.) the Chancellors were ecclesiastics; two archbishops, and five bishops held the office in this reign.
[4 ]See Additional Note 1, Spence, Equitable Jurisdiction of the Court of Chancery, p. 353.
[5 ]Lord Ellesmere (Treatise, p. 21) describing the Court, says, “It is the refuge of the poor and afflicted—it is the altar and sanctuary for such as, against the might of rich men and the countenance of great men, cannot maintain the goodness of their cause and truth of their title.” In the time of Hen. VI. we find it expressly recognized, that a man should have a subpœna against a great man to keep the peace, Crompton, 42 a.
[1 ]V. infra, and Sir H. Seton on the Court of Chancery, p. 5 and p. 18.
[2 ]The ordinances for the regulation of the offices and officers of the Courts of Chancery, hereafter particularly noticed, were made 12 Rich. II. In the Treatise of the Masters of the Chancery, Harg. Law. Tr. 309, it is stated, referring to Rot. Parl. 15 Rich. II. p. 1, that the patent appointing Chancellor Preston ran in these large terms,—“ad omnia et singula quæ ad expeditionem legum, et bonum regimen terræ necessario requiruntur.” Preston was not Chancellor, he was Lord Keeper of the Great Seal in Ireland, Cal. Rot. Parl. 15 Rich. II. No. 27. But this writ may perhaps be taken as an indication of what the powers of the Chancellor in both kingdoms were considered to be, in the precincts of the palace at least.
[3 ]Hardy’s Preface to the Calendars, p. xxv. xxvii.
[4 ]See Spence, Equitable Jurisdiction of the Court of Chancery, Book III. title, Obsolete Jurisdiction of the Court of Chancery.
[1 ]13 Rich. II. No. 30, Rot. Parl. iii. 266; Palg. Council, p. 70; Hardy, Introduction to Close Rolls, p. xxix; Legal Jud. p. 32; 4 Inst. 82.
[2 ]Summary by Sir H. Seton, 21, 23, 24.
[3 ]28 Edw. III. c. 3; 39 Edw. III. c. 14; 42 Edw. III. c. 3; Crompt. 41 b; Lord Ellesmere’s Treatise, p. 53.
[1 ]Calendars, i. p. 6, 11, 12.
[2 ]The writ temp. R. II. set out Cal. vol. i. p. 5, runs, “Coram nobis et dicto consilio nostro in cancellariâ.”
[3 ]See the petitions of the Commons, 12 R. II. & 17 R. II. sup.; and 3 Hen. V. ad 1415; Rot. Parl. vol. iv. p. 84, No. 46; Parkes, p. 47.
[4 ]Cal. vol. i. p. 1, 2, &c. The notices of the decrees made in this reign that have come down to us are few, but we have some memorials of the decrees and injunctions of that time. See Moore’s Rep. p. 554; and the Dict. of Egerton, Lord K., 2 Inst. 553, 4 Inst. 83.
[5 ]See the case, Rot. Parl. 17 R. II. 2 Inst. 553, 4 Inst. 83.
[1 ]Rot. Parl. iii. p. 297; Introd. to Close Rolls, xxix. n.; and see Proceedings of Privy Council, by Sir Harris Nicholas, p. 18; Seton, p. 17, and Rot. Parl. iii. p. 258, 9.
[2 ]See particularly the letter of Henry V. to his Chancellor, Cal. vol. i. p. 16; and see Sir H. Seton, p. 106.
[3 ]John de Scarle, Master of the Rolls, was made Chancellor and Keeper of the Seal, 1 Edw. IV., Dugdale.
[4 ]See Ranke’s Hist. of the Popes, i. 35, Mrs. Austin’s edition, and the general histories of the times. It was in this reign, as it will be remembered, that the famous Wickliffe flourished.
[1 ]Rot. Parl. 11 Rich. II. Pref. to Sir J. Davis’s Rep. and Duck. xxvi. viii.
[1 ]Many quotations establishing this fact, will be found in the pages of Spence, Equitable Jurisdiction of the Court of Chancery, particularly under the title Injunction; and I may refer to Mr. Parke’s History of the Court of Chancery, during the reigns of Henry VIII., Elizabeth, and James, to supply the rest.
[2 ]Hargr. Law Tracts, p. 327. This treatise was written against St. Germain’s Doctor and Student; there is a reply to it in the same collection, p. 332.
[3 ]One of his illustrations is, that relief was given where the amount secured by a bond or recognizance had been paid, and no release obtained. When a bill, says he, has been made to them (the Chancellors) that such a man should have great wrong to be compelled to pay two times for one thing, the Chancellor, not knowing the goodness of the Common Law, has temorously directed a subpœna to the plaintiff, commanding him to cease his suit (referring, no doubt, to Doctor and Student, c. 12, where it is so laid down; also by Lord Ellesmere, p. 106); and he, regarding no law, but trusting to his own wit and wisdom, giveth judgment as it pleaseth him; Hargrave’s Tracts, p. 326. It was held by Fairfax, and Hussey, J., in the Exchequer Chamber, 22 Edw. IV. 6, that no subpœna should issue in such case, for that the testimony of two witnesses should not defeat a matter of record, or specialty; even the Chancellor agreed as to matter of record.
[4 ]See the denunciations against the false and crafty invention, and the continuance, of Uses, ib. p. 329. Lord Bacon (Read. p. 40) notices the immoderate invectives against Uses which were current in his time. I have endeavored, as matter of curiosity, to ascertain whether the renewal of Uses, under the form of Trusts, took place under the lay or clerical Chancellors, who held the seals after the passing of the Statute of Uses. The first decision on the subject recorded by Tothill, is 9 Car. I., that would have been under Lord K. Coventry, who was appointed 1 Car. I. Williams, Bishop of Lincoln, immediately preceded him; but the date given in Tothill, as usual, is incorrect; there is no notice of such a cause in that year; the decisions at law, which caused the introduction of Trusts, took place during the Chancellorship of Heath, A. B., of York, Dyer, 155 a, Tyrrell’s case; and it is not improbable that it was the Archbishop who made the first decree establishing a modern Trust. If the old Registrar’s books had been moderately legible, I might possibly have looked through them, to solve this, and some other questions still remaining, as to the early jurisdiction of the court.
[1 ]See the petitions, Vin. Abr. iv. 378.
[2 ]4 Hen. IV. c. 23, Crompt. 41 b.
[3 ]Dodd v. Browning, Cal. i. p. 13. The proceedings after this time became distinguished as by “English Bill.”
[4 ]Petition of the Commons, 3 Hen. V. Rot. Parl. iv. p. 84, &c.; the answer was, Le Roy soy avisera. See Introd. Clo. R. xxx. Leg. Jud. 33. It was on a similar petition, 15 Hen. VI., that the statute or ordinance mentioned in the text was framed.
[5 ]See the Petition, 8 Hen. IV., cited Parkes, 47; though the reference is incorrect; 9 Hen. V. Rot. Parl. iv. p. 156; 1 Hen. VI. Rot. Parl. iv. p. 189; and see Palgr. Council, 49, 50.
[1 ]See the case as to waste, temp. Rich. II. cited by Lord K. Egerton, 41 Eliz. Moore’s Reports, p. 554; and the observations of Fairfax, J., temp. Edw. IV. Y. B. 21 Edw. IV. fo. 23; Brooke’s Abr. title “Conscience,” affords many such instances.
[2 ]Petition of Commons, 8 Hen. V. Rot. Part. iv. 127, No. 12; and see Report of Lords’ Committee (1823), p. 368.
[3 ]Rot. Parl. iii. p. 633, No. 43; ibid. iv. 151; Cruise, i. p. 392.
[4 ]See Additional Note (2), p. 353, Spence, Equitable Jurisdiction of the Court of Chancery.
[5 ]Cal. vol. ii. p. 16. 31; vol. i. p. 51, 52; Palgr. Council, 97. In the 6 Hen. VI. Rot. Parl. vol. iv. p. 321-2, No. 17, is a petition by two executors against a third, who had wasted the testator’s goods, which was presented to the Commons, and was carried by them to the Lords; it was thereupon ordered in Parliament, that the Chancellor to whom the matter was referred, should hear and determine the matter as “good faith and conscience” should require, Palgr. Council, p. 77.
[6 ]Pref. to Cal.
[7 ]3 Bla. Comm. i. p. 53; Palgr. Coun. 97. In some cases the parties were referred to Parliament, Crompt. 46 b.
[8 ]Y. B. 9 Edw. IV.; 22 Edw. IV.; Crompt. 41 b, &c.
[9 ]Palgr. Council, 97.
[1 ]2 Hen. V. stat. 1, c. 9; 33 Hen. VI. c. 1; Palgr. Council, p. 94.
[2 ]See Clarendon’s Hist. of the Rebellion, ed. 1721, i. p. 285; 4 Inst. 60, 61; the stat. 27 Edw. III. against those who appealed to the Papal Court, recognizes this Council as distinct from the Chancery.
[1 ]See Reg. Lib. B. 1579, fo. 479.
[2 ]Int. al. forcible entry, Reg. Lib. B. 1587, fo. 626.
[3 ]4 Inst. 63; Hob. Rep. p. 62, &c.; Sir F. Palgr. Council, 97.
[4 ]4 Inst. 61. 63; Sir F. Palgr. Council, p. 4.
[5 ]Reg. Lib. B. 1579, fo. 479.
[6 ]Clarendon, Rebell. i. 215.
[1 ]Spence, p. 337.
[2 ]The Lord Keeper “moved with compassion towards the poor man,” applied to the Master of the Requests to take order of a suit instituted in Chancery to be relieved from mistake, Reg. Lib. 5 & 6 Eliz. fo. 471.
[3 ]Palgrave, Council, 79, 99; and see stat. 16 Car. I. c. 10; Seton, p. 18; 4 Inst. 97; 3 Bla. Comm. 50, Christian’s note.
[1 ]See Palgr. Council, 27. 32, 33. 126.
[2 ]At the Parliament of Northampton, 2 Edw. III.
[3 ]See Palgr. Counc. 32-3, et v. ib. 126-7, 9.
[4 ]Petition of the Commons, 3 Hen. V. ad 1415, Parkes, p. 48, 50.
[5 ]Sir H. Seton has given a short account of them, p. 3. 10, 12. And see Lord Redesdale, Pleading, by Jeremy, p. 6. 151.
[6 ]Hoveden, 707, 29; Heywood, p. 85.
[7 ]Stat. 15 R. II. c. 13.
[1 ]These extracts are from “The History of English Law,” 1903, vol. I, pp. 352-401 (London: Methuen & Co.).
[2 ]Lecturer in St. John’s College, Oxford. A biographical note of this author is prefixed to Essay No. 9, in volume I of this Collection.
[1 ]Bryce, Holy Roman Empire, 105, 106.
[2 ]24 Henry VIII. c. 12. Cp. the Arrêt of the Parliament of Paris (1417) Ecclesiastical Commission 1883, 171, “Le Roi notre Sire est Empereur en son Royaume, non tenant d’aucun que de Dieu, et non resortissant à quelque personne ou Seigneur que ce soit: et comme Roi et Empereur peut faire Loix en son Royaume, contre lesquels nul de son Royaume peut venir, directs nec indirecte, et mêmement par voye d’appel sur peine de Leze-Majesté.”
[1 ]Bryce, Holy Roman Empire, 109.
[2 ]P. and M. i 89.
[3 ]Ibid. 92; Encyclopædia Britannica (9th Ed.) sub voc. Canon Law.
[4 ]Alternative names were canonistæ and civilistæ.
[1 ]Innocent III. is said to have published 4000 laws.
[2 ]The five books dealt with (1) ecclesiastical officials and judges; (2) procedure in Ecclesiastical Courts; (3) rights, duties and property of the clergy: (4) marriage; (5) criminal law and ecclesiastical discipline: “Judex, Judicium, Clerus, Connubia, Crimen.”
[3 ]Encyclopædia Britannica (9th Ed.) sub voc. Canon Law; P. and M. i 92, 93.
[4 ]Instances are, Johannes Teutonicus (1212) and Bartholomæus Brixensis (1258) on the Decretum; Bernardus Parmensis (1266) on the Decretals; Joannes Andreæ (1318) on the Sext and the Clementines.
[5 ]Maitland, Canon Law, 37.
[1 ]Maitland, Canon Law, 4-6.
[2 ]Ibid 16-42.
[3 ]Ibid 46.
[4 ]Ibid 103-105, 130.
[5 ]Ibid 129.
[6 ]f. 412 (cited ibid 106 n. 1). “Imprimis sicut dominus papa in spiritualibus super omnibus habeat ordinariam jurisdictionem, ita habet rex in regno suo ordinariam in temporalibus, et pares non habet neque superiores; et sunt qui sub eis ordinariam habent in multis, sed non ita meram sicut papa vel rex.”
[7 ]Maitland, Canon Law, 108-115. This is clear from William of Drogeda’s Summa (1239) dealing with procedure in ecclesiastical cases.
[8 ]Ibid 122, 123. Knowledge of the Canon Law was an avenue to preferment. Peckham was Auditor Causarum at Rome before he was Archbishop of Canterbury. Simon of Sudbury was one of the judges of the Rota at Rome. Chicheley was Doctor of Civil and Canon Law, Hale, Precedents of Cases in the Ecclesiastical Courts, xxxii, xxxiii.
[1 ]Maitland, Canon Law, 116-120.
[2 ]Maitland, Canon Law, 74, “Some of these prelates were in all likelihood far more at home when they were hearing assizes as justiciarii domini regis than when they were sitting as justices ordinarii, and they were already leaving the canon law to their schooled officials. . . . Many a mediæval bishop must have wished that, besides having two capacities, he had been furnished with two souls, unless indeed, the soul of one of his subordinates would serve as an anima damnanda.”
[1 ]25 Ed. III. St. 6; Maitland, Canon Law, 69.
[2 ]27 Ed. III. St. 1 c. 1.
[3 ]16 Rich. II. c. 5.
[4 ]§ 6.
[5 ]§ 4 The spiritual peers being asked their advice as to papal claims protested “quil n’est pas lour entention de dire ne affirmer que nostre Saint Piere le Pape ne poet excommenger Evesques ne qu’il poet faire translations des Prelatz solonc la ley de Seinte Eglise;” but said that if bishops were excommunicated for obedience to the Pope’s commands; or such translations are made whereby the king is deprived of them against his will; “que ce est encountre le Roi et sa corone sicome est contenuz en la petition avant nome.” For the council of Merton and legitimation per subsequens matrimonium see Maitland, Canon Law, 53-56. For purposes other than that of descent to land the canon law rule prevailed.
[1 ]Holdsworth, Hist. Eng. L., vol. I, 382, 383.
[2 ]13 Ed. I. St. 4.
[3 ]9 Ed. II. St. 1.
[4 ]Holdsworth, Hist. Eng. L., vol. I, 392-399.
[5 ]Maitland, Canon Law, 58, 59; Holdsworth, Hist. Eng. L., vol. I, 400; Holdsworth, Hist. Eng. L., vol. I, App. XVIII.
[1 ]Hallam, Constitutional History, i 59; Stephen, H. C. L. ii 452, 453.
[2 ]Maitland, Canon Law, 87-89.
[1 ]Maitland, Canon Law, 85-87; Ecclesiastical Commission 1883, 170-176.
[2 ]The first mention of this term is in 27 Henry VIII. c. 20 § 1.
[3 ]21 Henry VIII. c. 5 (Probate); 21 Henry VIII. c. 6 (Mortuaries); 21 Henry VIII. c. 13 (Pluralities).
[4 ]See the recognition printed at pp. 70, 71 of the report of the Ecclesiastical Commission of 1883.
[5 ]Ecclesiastical Commission 1883, 33.
[1 ]23 Henry VIII. c. 20.
[2 ]24 Henry VIII. c. 12. See the reprint of the statute with the alterations made by the king in the preamble at pp. 213, 214 of the Ecclesiastical Commission report of 1883.
[1 ]It may be useful to contrast with this preamble the following passage from Bracton (f 5 b), “Apud homines vero est differentia personarum quia hominum quidam sunt præcellentes et prelati, et aliis principantur. Dominus Papa videlicet in rebus spiritualibus, quæ pertinent ad sacer dotium, et sub eo archiepiscopi, episcopi, et alii prælati inferiores. Item in temporalibus sunt imperatores, reges, et principes in hiis quæ pertinent ad regnum, et sub eis duces, comites, barones, magnates sive vavasores, et milites.” The two passages well represent the old order and the new.
[2 ]26 Henry VIII. c. 1.
[3 ]Report of Ecclesiastical Commission 1883, 72.
[4 ]37 Henry VIII. c. 17.
[1 ]Report of Ecclesiastical Commission 1883, 37, 38.
[2 ]25 Henry VIII. c. 20.
[3 ]25 Henry VIII. c. 19.
[4 ]27 Henry VIII. c. 15; 35 Henry VIII. c. 16.
[5 ]Strype, Memorials, i. c. 29; Anthony Wood, Fasti s. a. 1536; Hale, Precedents, etc., xxxiv, xxxv.
[1 ]31 Henry VIII. c. 14.
[2 ]xxxvi, xxxvii. At p. xxxix he points out that there was no change in the ordinary routine of the courts; the officials made no change except that of adding to their names the words “regia auctoritate suffultus.”
[3 ]Ecclesiastical Commission 1883, 41-43; Hale xliv-xlvii.
[4 ]The Consistory Court of London has no act books between the years 1546 and 1554, Hale xliv.
[1 ]Ecclesiastical Commission 1883, 41.
[2 ]1 Eliza c. 1 § 8.
[3 ]The form of oath to be taken in accordance with the Statute (§ 9) declared the Queen to be “supreme Governor.”
[4 ]Article 37; cp. Ecclesiastical Commission 1883, 73.
[5 ]1 Eliza c. 1 § 8.
[6 ]Ecclesiastical Commission 1883, 49.
[7 ]Ibid 45.
[1 ]In 1832 the Ecclesiastical Commissioners (at p. 13) reported that the ecclesiastical laws . . . have been for upwards of three centuries administered in the Principal Courts by a body of men, associated as a distinct profession, for the practice of the Civil and Canon Laws. Some of the members of this body in 1567 purchased the site upon which Doctors’ Commons now stands, on which, at their own expense, they erected houses for the residence of the Judges and Advocates, and proper buildings for holding the Ecclesiastical and Admiralty Courts, where they have ever since continued to be held. In 1768 a Royal Charter was obtained, by virtue of which the then members of the Society, and their successors, were incorporated under the name and title of “the College of Doctors of Law exercent in the Ecclesiastical and Admiralty Courts.” It saw to the strict observance of the rule that only civilians should be appointed by the bishops as their chancellors, Ecclesiastical Commission 1883, 46. It was dissolved under the provisions of 20, 21 Vict. c. 77 §§ 116, 117.
[2 ]Coke, 2nd Instit. 601-609 gives the objections of Archbishop Bancroft and the answers of the judges. In his anxiety to escape from these prohibitions the archbishop comes near to hinting that there had been a breach of continuity. “As both the Ecclesiastical and Temporal jurisdictions be now united in his Majesty, which were heretofore de facto though not de jure derived from several heads, we desire to be satisfied by the judges, whether . . . the former manner of Prohibitions . . . importing an Ecclesiastical Court to be aliud forum a foro regis, and the Ecclesiastical law not to be legem terræ, and the proceedings in those Courts to be contra Coronam et Dignitatem Regiam may now without offence to the King’s Ecclesiastical prerogative be continued, as though either the said jurisdictions remained now so distinguished and several as they were before, or that the laws Ecclesiastical, were not the King’s and the Realm’s Ecclesiastical Laws.” To which the orthodox answer was given “that both jurisdictions were ever de jure in the Crown, though the one sometimes usurped by the see of Rome; but neither in the one time nor in the other hath ever the form of Prohibitions been altered, nor can be but by Parliament,” pp. 601, 602.
[3 ]Holdsworth, Hist. Eng. L., vol. I, p. 327.
[4 ]Mackonochie v. Lord Penzance (1881) L. R. 6 A. C., at p. 446.
[1 ]Eliza. c. 1 § 20; Holdsworth, Hist. Eng. L., vol. I, p. 386.
[2 ]1 Eliza c. 2 § 2.
[3 ]§§ 4 and 5.
[4 ](1591) 5 Co. Rep. 1.
[5 ]At p. 8 a.
[1 ]At p. 9 b; cp. p. 32 b, “If it be demanded what canons, constitutions, ordinances and syndols provincial are still in force within this realm, I answer that it is resolved and enacted by authority of Parliament, that such as have been allowed by general consent and custom within the realm, and are not contrariant or repugnant to the laws, statutes and customs of the realm, nor to the damage or hurt of the king’s prerogative royal, are still in force within this realm, as the king’s ecclesiastical laws of the same.” Cp. also the Queen v. Millis (1844) 10 Cl. and Fin. 678 per Tindal, L. C. J., “The law by which the Spiritual Courts of this kingdom have from the earliest times been governed and regulated is not the general canon law of Europe, imported as a body of law into this kingdom, and governing those courts proprio vigore, but, instead thereof, an ecclesiastical law, of which the general canon law is no doubt the basis, but which has been modified and altered from time to time by the ecclesiastical constitutions of our Archbishops and Bishops, and by the legislature of the realm, and which has been known from early times by the distinguishing title of the King’s Ecclesiastical Law.”
[2 ]Phillimore, Ecclesiastical Law (1895) 3. Cp. Martin v. Mackonochie (1868) L. R. 2 Ad. and Eccl. 116 for a full statement of the orthodox legal and ecclesiastical view.
[3 ]16 Car. I. c. 11; 13 Car. II. St. 1 c. 12.
[1 ]Powell, J., in the Seven Bishops case (1688) 12 S. T. at p. 427, said to the jury, “I can see no difference, nor know of none in law, between the king’s power to dispense with laws ecclesiastical, and his power to dispense with any other laws whatsoever. If this be once allowed of there will need no Parliament.” Cp. Stillingfleet, Eccl. Cases, Discourse ii, chap. iii.
[2 ]Holdsworth, Hist. Eng. L., vol. I, pp. 378-380.
[1 ]Ecclesiastical Commission 1832, 11, 12; Eccl. Commission 1883, 25, 26.
[2 ]Rex v. Tristram L. R. 1902, 1 K. B. 816.
[3 ]He is the official of the bishop in outlying portions of the diocese, Phillimore, Eccl. Law, 933.
[4 ]Ecclesiastical Commission 1883, 25, 26.
[5 ]Stubbs, Sel. Ch. 85, “Nullus episcopus vel archidiaconus delegibus episcopalibus amplius in hundret placita teneant nec causam quæ ad regimen animarum pertinet ad judicium secularium hominum adducant.” Offenders are to be tried, “non secundum hundret sed secundum canones et episcopales leges.”
[6 ]Ecclesiastical Commission 1883, 25, 26.
[1 ]It was the duty of Rural Deans to report on the manners of the clergy and laity. This rendered them necessary attendants at the episcopal visitation, and gave them at one time a small jurisdiction. Sometimes this was specially delegated to them. But this had ceased to be the case before the Reformation. The jurisdiction was absorbed by the archdeacon, Phillimore, Eccl. Law, 211-213.
[2 ]Ecclesiastical Commission 1883, 26.
[3 ]Report at p. 11. At p. 21 their number is estimated at 300. It was said that “there were some of so anomalous a nature as scarcely to admit of accurate description. In some instances these jurisdictions extend over large tracts of country, embracing many towns and parishes, as the Peculiar of the Dean of Salisbury. In others several places may be comprehended, lying at a great distance, apart from each other. Again some include only one or two parishes.” Cp. Hale, Precedents, etc., xxix-xxxi. One peculiar of the abbey of St. Albans extended over 26 parishes, and in 1505-1536 700 wills were there proved. In the Commissary’s court for the City of London, 1496-1500, 1854 persons were cited, ibid liii.
[1 ]1, 2 Vict. c. 106; 3, 4 Vict. c. 86; 10, 11 Vict. c. 98; Phillimore, Eccl. Law 927.
[2 ]The archbishop of Canterbury had also a Diocesan court for the Diocese of Canterbury which was held by a Commissary, Ecclesiastical Commission 1883, 31. As to these courts generally see ibid 31, 32, 44-46.
[3 ]The offices of Dean of the Arches and Official Principal became merged (4th Instit. 337). The courts of both the Official Principal and the Dean sat at St. Mary-le-Bow which was built on arches. Hence the court of the Official Principal becomes known as the court of the Arches.
[4 ]Maitland, Canon Law, 117-120.
[5 ]23 Henry VIII. c. 9.
[6 ]Ecclesiastical Commission 1853, 31.
[7 ]Ibid 46.
[1 ]Ecclesiastical Commission 1853, 31; Phillimore, Eccl. Law, 922, 923; Coke, 4th Instit. 337, said that it possessed no contentious jurisdiction, but dealt merely with matters pro forma, e. g. the admission to benefices, etc.
[2 ]Ecclesiastical Commission, 1883, 190.
[3 ]Read v. Bishop of Lincoln (1888) 13 P. D. 221; (1889) 14 P. D. 88. The exact nature of the jurisdiction then exercised is by no means clear, Phillimore, Eccl. Law, 73, 74.
[4 ]Ecclesiastical Commission 1883, 31.
[5 ]Lyndwood 174 sub yoc. Laicis; Bl. Comm. ii. 509. The value was ultimately fixed at £5.
[6 ]Goffin, the Testamentary Executor, 69, 70.
[7 ]Ecclesiastical Commission 1883, 31.
[8 ]Phillimore, Eccl. Law, 922; Rex. v. Archbp. of Canterbury L. R. 1902, 2 K. B. 503.
[2 ]37, 38 Vict. c. 85 § 7.
[3 ]I. e. The official who granted dispensations (25 Hy. VIII. c. 21) 4th Inst. 337.
[4 ]Ecclesiastical Commission 1883, 45, 46, 52-69; Read v. Bishop of Lincoln (1889) 14 P. D. 114-117.
[5 ]4th Instit. 322; cp. Hale, 1 P. C. 390; Gibson, Codex, 353 n.g.
[6 ](1712) Brod. and Free 325.
[1 ]Ecclesiastical Commission 1883, 30; Engl. Hist. Review xvi 40, 41.
[2 ]Ecclesiastical Commission 1883, 30.
[3 ]24 Henry VIII. c. 12.
[4 ]Causes testamentary, causes of matrimony and divorce, rights of tithes, oblations and obventions. This did not apparently include heresy.
[5 ]25 Henry VIII. c. 19. Repealed 1, 2 Phil. and May, c. 8. Revived 1 Eliza. c. 1 with a saving for certain pending appeals to the Pope.
[1 ]§ 4.
[3 ]Rothery’s Return (Parliamentary Papers 1867, lvii 75) x-xii.
[4 ]Ecclesiastical Commission 1883, 47.
[5 ]Rothery’s Return xx-xxii.
[1 ]Ecclesiastical Commission (1832) Special Rep. 6.
[2 ]Ibid 6, 159, 160 (Evidence of Joseph Phillimore).
[3 ]But a recourse to the Delegates by the special provision in the patent of a Colonial Bishop was still possible, Rothery’s Return 100.
[4 ]Holdsworth, Hist. Eng. L., vol. I, p. 293. The hearing of Ecclesiastical cases was not actually mentioned. It was assumed that this jurisdiction passed, and this was recognized by the Church Discipline Act, 3, 4 Vict. c. 86 § 16.
[5 ]1 Eliza, c. 1 § 8; Ecclesiastical Commission 1883, 49, 50.
[6 ]Nothing excited more odium than the “ex officio oath.” “This procedure, which was wholly founded on the canon law, consisted in a series of interrogations, so comprehensive as to embrace the whole scope of clerical uniformity, yet so precise and minute as to leave no room for evasion, to which the suspected party was bound to answer upon oath,” Hallam, C. H. i 202. It was abolished by 13 Car. II. St. 1, c. 12 § 4.
[1 ]Prothero, Documents, xl-xlv 227-241.
[2 ]Ecclesiastical Commission 1883 50; cp. Cases in the Courts of Star Chamber and High Commission (C. S.); Stephen, H. C. L. ii 420-427.
[3 ]Rymer, Fœdera, xvi 291, 386.
[4 ]The Commissions of those years provided for a commission of review.
[5 ]Prothero, Documents, xlvi; Hale, Precedents, etc., xlviii, xlix.
[2 ]Holdsworth, Hist. Eng. L., vol. I, pp. 290, 291.
[3 ]5 Rep. 1 (1591) at p. 8 a (and cp. Moore 755) it was said that such a commission would have been lawful by virtue of the Royal Supremacy, apart from the act of Supremacy. James II.’s lawyers would probably have justified their action in setting up a new court of High Commission on some such ground as this, Stillingfleet, Eccl. Cases, ii 200, 201.
[4 ]4th Instit. 326. Cp. Stephen, H. C. L. ii 416-418.
[5 ]Ibid 326, 328.
[6 ]Ibid 331.
[7 ]Ibid 332-334.
[8 ]Prothero, Documents, 302-305.
[9 ]16 Car. I. c. 11.
[10 ]13 Car. II. St. 1 c. 12 § 3.
[1 ]At p. 56.
[2 ]3, 4 Vict. c. 86.
[3 ]§ 3.
[4 ]§ 23.
[5 ]§§ 3, 4, 5.
[6 ]§ 6.
[7 ]§ 7.
[8 ]§ 9.
[9 ]§§ 11, 13.
[10 ]§ 13.
[11 ]§ 15.
[1 ]Ecclesiastical Commission 1883, xlvi.
[2 ]§ 19.
[3 ]§ 22.
[4 ]§ 14.
[5 ]55, 56 Vict. c. 32 § 14. 3. The sections of the Church Discipline Act, which are saved, are contained in the schedule. They relate to the definition of terms; power of the bishop to pronounce sentence at once with the consent of the parties; power of the bishop to inhibit the accused party pending enquiry; witnesses to be examined on oath; power as to exempt or peculiar places.
[6 ]§ 1.
[7 ]§ 2; cp. Sweet v. Young L. R. (1902) P. 37.
[8 ]§ 2, a, c, e.
[9 ]§ 4.
[10 ]37, 38 Vict. c. 85. Cp. Ecclesiastical Commission 1883 xlvii-xlix; and Green v. Lord Penzance L. R. (1881) 6 A. C. 657.
[1 ]§ 8.
[2 ]§ 9.
[3 ]§ 9.
[4 ]§ 9.
[5 ]§ 9.
[6 ]At p. xlix.
[7 ]61, 62 Vict. c. 48.
[8 ]§§ 2, 3. 1.
[9 ]§ 3. 1.
[10 ]§ 3. 2.
[11 ]§ 9.
[1 ]P. and M. i 430-440; Maitland, Canon Law, 132-147.
[2 ]Sel. Ch. 138, Clerici rettati et accusati de quacunque re, summoniti a justicia regis venient in curiam ipsius, responsuri ibidem de hoc unde videbitur curiæ regis quod ibidem sit respondendum; Et in curia ecclesiastica, unde videbitur quod ibidem sit respondendum; ita quod justicia regis mittat in curiam sanctæ ecclesiæ ad videndum qua ratione res ibi tractabitur. Et si clericus convictus vel confessus fuerit, non debet de cetero eum ecclesia tueri.
[1 ]P. and M. i 437, 438 and notes.
[2 ]Bracton, f. 123 b, states the old practice; Britton, i 27, the new. Coke, 2nd Instit 164, assigns the change to Stat West I. c. 2 (1275). The rolls show that the change had taken place before the Statute, P. and M. i 425 n. 2.
[3 ]Holdsworth, Hist. Eng. L., vol. I, pp. 138-140. Hobart, Rep. 291 in 1620 described it as “turning the solemn trial of truth by oath into a ceremonious and formal lie.”
[4 ]P. and M. 429, 430.
[1 ]For the detailed history of the process see Stephen, H. C. L. i. 458-472; cp. Hale, 2 P. C. 323-390; and Bl. Comm. iv. 358-367.
[2 ]25 Ed. III. Stat. 3 c. 4.
[3 ]5 Anne, c. 6 § 6.
[4 ]1 Ed. VI. c. 12 § 16.
[5 ]3 Will. and Mary c. 9 § 6.
[6 ]4 Henry VII. c. 13. The distinction was abolished 28 Henry VIII. c. 1 § 7, but restored by 1 Ed. VI. c. 12 § 14.
[7 ]1 Ed. VI. c. 12 § 14.
[8 ]Carter, Legal History, 200. The new practice was also advantageous to the revenue, as, if convicted after pleading to the indictment, the prisoner’s goods were absolutely forfeited; whereas if he were convicted without pleading to the indictment, they were restored if he successfully made his purgation.
[9 ]18 Eliza. c. 7 §§ 2, 3.
[1 ]4 Geo. I. c. 11.
[2 ]Stephen, H. C. L. i 464.
[3 ]Stephen, H. C. L. i. 464-466.
[4 ]7, 8 Geo. IV. c. 28 § 6. This act did not repeal 1 Ed. VI. c. 12. There was consequently a doubt whether even after this act of 7, 8 Geo. IV. peers might not claim clergy. The doubt was set at rest by 4, 5 Vict. c. 22, which put peers accused of crimes on the same footing as commoners.
[5 ]Hale, Precedents, lvii.
[1 ]Stephen, H. C. L. ii 438. See the Litany, “Sedition, privy conspiracy, and rebellion,” are co-ordinated with “false doctrine, heresy and schism.”
[2 ]Maitland, Canon Law, 158-175; Bracton ff. 123 b, 124. He explains that, as a rule, degradation is a sufficient punishment for the clerk. But if convicted of apostasy he must be burnt, “secundum quod accidit in concilio Oxoniensi celebrato a bonæ memoriæ S. Cantuariensi archiepiscopo, de quodam diacono qui se apostatavit pro quadam Judæa, qui cum esset per episcopum degradatus, statim fuit igni traditus per manum laicalem.” Cp. Hale 1 P. C. 394 for two other doubtful cases.
[3 ]Lyndwood 293 refers to a decree of Frederic II., which had been approved by the pope, and incorporated into the Canon Law as c. 18 in Sexto, 5. 2.
[4 ]293 sub voc. pœnas in jure expressas. “Sed hodie indistincte illi qui per judicem ecclesiasticum sunt damnati de Heresi, quales sunt pertinaces et relapsi, qui non petunt misericordiam ante sententiam, sunt damnandi ad mortem per sæculares potestates, et per eos debent comburi seu igne cremari, ut patet in constitutione Frederici quæ incipit ut commissi § item mortis . . . quæ sunt servandæ ut patet e. ti. ut inquisitionis.”
[1 ]Stephen, H. C. L. ii 445-447; Maitland, Canon Law, 176, 177.
[2 ]2 Henry V. St. 1 c. 7.
[3 ]Stephen, H. C. L. ii 450.
[4 ]25 Henry VIII. c. 14.
[5 ]Stephen, H. C. L. ii 455.
[6 ]31 Henry VIII. c. 14.
[1 ]1 Ed. VI. c. 12.
[2 ]1550, Joan Boucher was burnt as a heretic.
[3 ]1 Eliza. c. 1 § 8.
[4 ]§ 20. They could adjudge nothing heresy but such as had been adjudged to be heresy “by the authority of the canonical scriptures, or by the first four general councils, or any of them, or by any other general council wherein the same was declared heresy by the express or plain words of the said canonical scriptures, or such as hereafter shall be . . . determined to be heresy by the High Court of Parliament of this realm with the assent of the Clergy in their Convocation.” As Stephen says, H. C. L. ii 461, this meant that no one could be declared heretic, because of his views as to the Catholic and Protestant controversy, unless he was anabaptist.
[5 ]Rep. xii 93.
[6 ]29 Car. II. c. 9.
[1 ]Cp. Chaucer’s summary in the Friar’s Tale:—
In vol. xxv (11-56) of the Archælogia Cantiana there is an account of various presentments made between the reigns of Elizabeth and Anne in certain parishes in the Deanery of Westhere. They are of the same general character as those collected by Hale. The extracts after the Restoration deal as a rule simply with ecclesiastical matters.
[1 ]Hale, Precedents, lvii, lviii.
[2 ]H. C. L. ii. 402.
[3 ]Hale, Precedents, liv.
[4 ]13 Car. II. St. 1 c. 12.
[1 ]25 Henry VIII. c. 6; 33 Henry VIII. c. 8. Stephen, H. C. L. ii 430, says that the reason why incest in its worst form is not a crime is probably because it was, and still is, an ecclesiastical offence.
[2 ]1 Jac. I. c. 11.
[3 ]4 Geo. IV. c. 76.
[4 ]18, 19 Vict. c. 41.
[5 ]23, 24 Vict. c. 32.
[6 ]Co. Litt. 96 b; cp. Phillimore v. Machon (1876) L. R. 1 P. D. 481.
[7 ]Holdsworth, Hist. Eng. L., vol. I, pp. 378-380.
[8 ]Stephen, H. C. L. ii 437.
[9 ]Constitutions of Clarendon c. 15; Circumspecte Agatis, 13 Ed. I.; P. and M. ii 195-200; Holdsworth, Hist. Eng. L., vol. I, p. 242.
[1 ]Glanvil vii 13, 14; P. and M. ii 365, 366.
[2 ]Bracton f. 407 b.
[3 ]P. and M. ii 372-383.
[4 ]The Queen v. Millis, 10 Cl. and Fin. 534; Beamish v. Beamish, 9 H. L. C. 274; P. and M. ii 369, 370-372.
[1 ]Ecclesiastical Commission 1832, 43.
[2 ]Encyclopædia Britannica (10th Ed.) Tit. Divorce. In Lord Northampton’s case (Ed. VI) the delegates pronounced in favour of a second marriage after a decree of divorce a mensa et thoro. In the Reformatio Legum the power to grant a complete divorce was recommended.
[3 ]Foljambe’s case; Porter’s case, 3 Cro. 461.
[4 ]1669 Lord de Ross; 1692 Duke of Norfolk. Before 1715 only 5 such bills were known, between 1715 and 1775 there were 60, between 1775 and 1800 there were 74, between 1800 and 1850 there were 90.
[1 ]20, 21 Vict. c. 85.
[2 ]§§ 8 and 9.
[3 ]§ 55.
[4 ]31, 32 Vict. c. 77.
[5 ]20, 21 Vict. c. 85 §§ 6, 7, 27, 31, 33.
[6 ]§ 59.
[7 ]§ 21.
[1 ]Encyclopædia Britannica loc. cit.
[2 ]Selden, Original of the Ecclesiastical Jurisdiction of Testaments, chap. i.
[3 ]Ibid, chap. vi. Cp. P. and M. ii 339.
[1 ]Selden, ibid, chap. v, cites a case in Saxon times in which a testator made three copies of his will. One he kept; another he handed to the abbot of Ely, the chief beneficiary; the third he gave to the alderman “et petiit ab illo ut suum testamentum stare concederet.” Ibid, chap. vii, there is a case of King John assenting to or licencing the will of a certain Oliver de Rocheford.
[2 ]vii 8, Placitum de testamentis coram judice ecclesiastico fieri debet.
[3 ]Selden, Original, etc., chap. v.
[4 ]Britton i 75 does not mention this among the royal franchises.
[5 ]P. and M. ii 340. Alexander II. granted to the Cistercians in England the right to grant probate of the wills of their tenants and farmers. In other cases this jurisdiction may be the result of mere usurpation. In 1342 Archp. Stratford complained of this; and this was not a single instance, Lyndwood 260, 263.
[6 ]Hensloe’s case (1600) 9 Co. Rep. 36; Lyndwood 176 sub voc. ecclesiasticarum libertatum.
[7 ]174 sub voc. approbatis.
[8 ]Original, etc., chap. vi. Cp. P. and M. ii 339 n. 4.
[1 ]Selden, Disposition of Intestates’ Goods, chap. i; Dyke v. Walford (1846) 5 Moo. P. C. 434, 487.
[2 ]Charter of Henry I. § 7 (Sel. Ch. 101).
[3 ]Selden, Disposition, etc., chap. ii.
[4 ]John of Athona 122.
[5 ]Disposition, etc., chap. iii.
[6 ]P. and M. ii 358 n. 2.
[7 ]M. C. 1215.
[8 ]f. 60 b.
[9 ]Bracton f. 60 b.; P. and M. ii 355, 356.
[1 ]A constitution of archbp. Stratford in 1342 recites that the clergy as executors and administrators have converted goods to their own use, “in ecclesiarum fraudem seu damnum suorum creditorum liberorum et suarum uxorum qui et quæ quam de jure tam de consuetudine certum quotam dictorum bonorum habere deberet.” Cp. 13 Ed. I. c. 19; Bl. Comm. ii 495.
[2 ]31 Ed. III. St. 1 c. 11; 21 Henry VIII. c. 5. It is after the statute of Ed. III. that we get the term administrator technically used. Before, the term had been executor dative and executor testamentary, P. and M. ii 359 n. 1.
[3 ]Selden, Original, etc., chaps. iii and iv.
[4 ]Cited ibid, chap. iv, “Si heredes jussa testatoris non impleverint, ab episcopo loci illius omnis res quæ eis relicta est canonice interdicatur cum fructibus et cæteris emolumentis ut vota defuncti impleantur.”
[1 ]vii 6, 7; xii 17.
[2 ]Original, etc., chap. vii.
[3 ]Original, etc., chap. viii.
[4 ]Bracton f. 407, “Item non locum habet prohibitio in causa testamentaria si catella legentur et inde agatur in foro ecclesiastico;” Fleta II. 57. 13.
[5 ]Bracton’s Note Book no. 381.
[6 ]On this subject see Goffin, The Testamentary Executor 37-63.
[7 ]vii 8; Holmes, Common Law, 346-348.
[8 ]ff. 61, 407 b.
[1 ]f. 407 b; Goffin 40-44.
[2 ]Britton i 163; Fleta II. 62. 10 “Et notandum quod hæres non tenetur in Anglia ad debita Antecessoris reddenda, nisi per Antecessorem ad hoc fuerit obligatus, præterquam debita Regis tantum, et super hoc fit Statutum tale in magna carta”—i. e. § 26 (1215).
[3 ]Goffin 45-47.
[4 ]P. and M. ii 345.
[5 ]Goffin 47-63.
[6 ]Specialty debts where the heir is named.
[7 ]Lyndwood 176 sub voc. inventarium. Cp. 21 Henry VIII. c. 5 § 4.
[8 ]Ibid 180 (sub voc. sibi). “Inferiores, viz., Ordinarii coram Episcopo, Episcopus coram Archiepiscopo . . . Archiepiscopus autem de administratis per eum coram suis confratribus in Concilio Provinciali reddet rationem; non tamen ab eis, si quid suspiciose fecerit, redarguendus est, sed suo Superiori, viz., Papæ super hoc denunciandus.”
[1 ]170 (sub voc. sufficienter cavere); 176.
[2 ]Lyndwood 171, 179.
[3 ]Constitution of Archbp. Stratford, Lyndwood, at pp. 180, 181.
[4 ]Lyndwood 177 sub voc. nisi talibus; P. and M. ii. 341.
[5 ]Disposition, etc., chap. iv.
[6 ]P. and M. i 111-113, 139.
[7 ]P. 170 sub voc, insinuationem.
[1 ]Cleymond v. Vincent, Y. B. 12 Hy. VIII. Mich. pl. 3; Norwood v. Read (1557) Plowden 180; Pinchon’s case (1612) 9 Co. Rep. 86 b.
[2 ]Vavasour and Kyghley v. Chadworth, Cal. i xciii; Select Cases in Chancery (S. S.) nos. 104, 109, 143; Y. B. 4 Henry VII., Hill, pl. 8.
[3 ]Holdsworth, Hist. Eng. L., vol. I, p. 250.
[4 ]Ibid. 325, 326.
[5 ]Spence, Equity, i. 579.
[7 ]Hughes v. Hughes (1666) Carter’s Rep. 125.
[8 ]Select Cases in Chancery (S. S.) no. 140 (1454).
[9 ]Spence, i 580; Polgrenn v. Feara, Cal. i xxxix.
[1 ]Cary 28, 29; Tothill 86; (1738) 1 Atk. 491, injunction issued to stay a suit in the ecclesiastical court; Goffin 74.
[2 ]Atkins v. Hill (1775) Cowper 284, 287.
[3 ]22, 23 Car. II. c. 10 §§ 1, 2, 3.
[4 ]In Matthews v. Newby (1682) 1 Vern. 133 Lord Hardwicke said that the ecclesiastical court had “but a lame jurisdiction.” Its jurisdiction was sometimes simply disregarded. In Bissell v. Axtell (1688) 2 Vern. 47, the Chancellor ordered a fresh account to be taken of the intestate’s personal estate, though one had already been taken by the ecclesiastical court.
[5 ]20, 21 Vict. c. 77 § 23.
[6 ]20, 21 Vict. c. 77 §§ 4, 5, 8.
[7 ]§ 10.
[1 ]§ 4.
[2 ]§ 39.
[3 ]Ecclesiastical Commission 1883, li.
[4 ]6, 7 Will IV. c. 71 (tithes); 31, 32 Vict. c. 109 (church-rates); 34, 35 Vict. c. 43 (dilapidations).
[5 ]Constitutions of Clarendon c. 1.
[6 ]c. 9. The assize utrum (App. II.) was provided to try the question whether or no the property was held by this tenure.
[7 ]P. and M. i 224-230.
[8 ]Maitland, Canon Law, 53-56.
[1 ]Holdsworth, Hist. Eng. L., vol. I, App. XVIII.
[2 ]Bl. Comm. iii 102.
[3 ]5 Eliza. c. 23.
[4 ]53 Geo. III. c. 127 § 1.
[5 ]§ 3.
[1 ]This essay forms the introductory chapter of the third edition of Mr. E. S. Roscoe’s “Admiralty Jurisdiction and Practice,” 1903, pp. 1-61 (London: Stevens and Sons).
[2 ]Barrister-at-law, London; M. A., LL. D., London University 1870.
[3 ]The probable root of the word “admiral” is to be found in the Arabic “amir-al-baha,” that is, commander of the sea. The first portion of the compound word, viz. “amir” or “emir,” a commander, was applied in the tenth century to the officer in the Eastern Empire (Gibbon’s Decline and Fall, ch. 53), representing the præfectus classis of earlier times at Rome. In the twelfth century, when maritime commerce was developed owing to the link between Europe and Asia resulting from the Crusades, the word “amiral” travelled along the shores of the Mediterranean to Western Europe, where it was adopted with slight variations by most seaboard continental nations; and towards the end of the next century, when England and Flanders began to share in the trade with the Levant, the word became naturalized in England as “amyrel” or “admyrall,” or softened by doubling the m: “As when the mast of some tall ammiral” (Milton). In the kingdom of Aragon the title of “admiral” does not appear to have superseded that of Captain of the Fleet (Capitaneus Armatæ) until about 1354; but it seems to have been introduced in the neighbouring kingdom of Castile somewhat earlier, and Alphonso X. explained it thus: “The chief of all those who compose the crews of the vessels fitted out for war is called the Admiral, and he has over the fleet, which is the main body of the Armada, or over a squadron which may be detached, the same power as the King himself if he were present.” See Black Book, Roll Series, vol. ii. Introd. p. lxiii.
[4 ]Comyns, Dig., tit. Admiralty (A). The words custos, for admirallus, and custodia for admirallitas, are used in earlier and later times in the records as equivalent terms.
[1 ]William de Leybourne was styled “Admiral of the Sea of the King of England” in a treaty between the envoys of the English King and Guy, Count of Flanders, made at Bruges, 15 Edw. I. See Clowes’ Hist. of Navy, vol. i. p. 141; Com. Dig. Ad. (A). The first mention of the admiral in our printed law is in 8 Edw. II. See Black Book, Rolls Series, Introd. vol. i. p. xlvi.
[2 ]Richard Fitzallan. Earl of Arundel and Surrey, 10 Richard II. See Beawes’ Lex Mercat. (1813), 6th ed. p. 400.
[3 ]See the list, according to Sir Henry Spelman, down to James II., given in the Appendix to Godolphin’s Admiral Jurisdiction, 2nd ed. (1685), pp. 215-230. “In early times there were occasionally more Lord Admirals than one; not, however, of the same part of the coast; but one from the Thames northward, and one southward, . . . but not interfering with each other. Which, however, was the most ancient form of executing this office, whether by one officer or by several, is mere conjecture . . . but, however that may be, I am not aware that more than one Lord Admiral has ever been appointed since the time of Henry VIII., and the statute (31 Hen. VIII. c. 10) only speaks of the Lord Admiral,” per Sir John Nicholl in The King (in his office of Admiralty) v. 49 Casks of Brandy (1836), 3 Hagg. 257, at p. 279. From a petition presented in the reign of Henry V. (1416), it seems that it was customary in the fifteenth century for merchantmen sailing in consort to elect the master of one of the vessels as the “admiral” for the voyage; and at the present day the senior master in a fleet of fishing vessels is called an admiral: see the royal proclamation of 1708 as to the masters of the first, second and third vessels entering a harbour in Newfoundland for the fishing season being respectively admiral, vice-admiral and rear-admiral.
[4 ]The special attention bestowed, on account of their geographical position, on the Cinque Ports, carried out a policy originated by the Romans, who found themselves under the necessity of protecting the country from the attacks of pirates, which subsequently assumed the form of wholesale immigration by hordes of Saxons. In order to obtain and keep the command of the sea, the naval forces were, about ad 230, reorganized, and the practice of rewarding, by privileges, the building of ships extended to Britain. Walled camps with fortified harbours were established by the Roman Imperial Government from Southampton, along the line of Sussex, Kent, Essex, Suffolk and Norfolk, round to the Wash; Dubris (Dover) being about the centre, and the base on the opposite coast at Bononia (Boulogne); the British squadron being strengthened by the construction of vessels for coast defence. These were stationed in the great estuaries, under prefects, that is, officers exercising military as well as naval command, the whole force being under the authority of the Count of the Saxon Shore (Comes Littoris Saxonici). Details of this organization are given in the “Notitia Dignitatorum” compiled towards the end of the fourth century. In ad 286 Carausius, who had occupied the position of gubernator, or pilot, in the Roman Navy, was appointed to the command of the British fleet, and, crossing over from Bononia to Rutupiæ (Richborough, now Sandwich), he assumed the imperial purple and greatly improved the fleet; but on his murder by his subordinate Alectus, and the defeat of the fleet of the latter by the Roman commander sent against him, the power of the navy to resist the attacks of the Saxons and north Germanic tribes decreased. After the final departure, about ad 430, of the Romans, upon whose power they had entirely depended, the Britons were quite unable to police their own coasts, having neither ships nor officers; but Alfred, about 897, Athelstan, about 937, Edgar, about 964, and Canute, 1016, seem to have availed themselves to some extent of the original organization, and besides creating and maintaining a fleet of “king’s” and “people’s” ships, developed the principle that the port-towns should find a fixed number of ships, in return for which they were granted exemption from general taxation and permission to govern themselves. This arrangement, by which the mercantile marine undertook both its own business of trade and the national business of territorial defence, the Normans accepted with some adjustment to adapt it to feudal tenures.
[1 ]The offices of admiral and captain were subsequently divided.
[2 ]See Wynne’s life of Sir Leoline Jenkins, vol. i. p. lxxxv., and The Lord Warden and Admiral of the Cinque Ports v. H. M. in his office of Admiralty (1831), 2 Hagg. 438, at pp. 444, 445. See also Appendix E. p. 387, Hueffer’s Cinque Ports, 1900. The statutes 2 Hen. V. and 28 Hen. VIII. c. 15, reserve the cognizance of such criminal cases as are therein mentioned in the Cinque Ports to their own admiral, distinct from the Lord High Admiral’s jurisdiction.
[3 ]The Court, presided over by Arthur Cohen, Esq., K. C., sits occasionally at the Royal Courts of Justice, London. It is not a Court of Record, but appeals lie direct to the Privy Council, and appeals may be made to it from the County Court under 31 & 32 Vict. c. 71, s. 33, in causes arising within the jurisdiction of the Cinque Ports.
[4 ]The terms of one of the earliest commissions issued to an admiral, that of John Lord de Botetort, March 15, 1315, is set out at p. 142, vol. i. of Clowes’ History of the Navy.
[5 ]Comyns, Dig., tit. Admiralty (B); 4 Inst. 145.
[1 ]The navy consisted of the ships, mariners, pilots, and any other persons able and fit for service arrested as often as occasion required. The Royal Navy—that is, a number of ships of war permanently kept on foot by the Crown—practically dates from the time of Henry VIII., when, in 1512, the first navy office was created, and commissioners appointed to manage naval affairs. A Lord High Admiral continued to be appointed until 1632, when the office was put in commission; and since that date there have been only four, the office in the intervals being executed by a Board of Commissioners. The four were James Duke of York, styled Admiral of England, Scotland and Ireland (1660) (but when excluded from office by the Test Act in 1673 Charles II. had the office executed by commissioners: see Sir L. Jenkins’ Letters, Life by Wynne, vol. ii. p. 705); Prince George of Denmark (1702); the Earl of Pembroke (1708); the Duke of Clarence (afterwards William IV.), in 1827, who was assisted by a council (7 & 8 Geo. IV. c. 65). As to the King in his office of Admiralty representing the Lord High Admiral, see The Mercurius (1798), 1 C. Rob. 80, at p. 81; and The Rebeckah (1799), 1 C. Rob. 227, at p. 229; the distinction involving differences in the rights jure coronæ and those appertaining to him in his office of Admiralty.
[2 ]See Black Book, Rolls Series, vol. i. p. 33, No. 11 of Instructions to the Admiral. This jurisdiction since the time of Charles II. has been exercised by Naval Courts Martial.
[3 ]See Black Book, Rolls Series, vol. i. p. 57, No. 16 of the Rules or Orders about matters which belong to the Admiralty, probably compiled in the reign of Edward III., and containing preexisting rules of various dates, but probably not so early as those assigned to them.
[4 ]Lib. iii. fol. 125.
[5 ]Black Book, Rolls Series, p. 65, No. 17 of the Admiralty Rules or Orders. Prynne’s Animadversions, p. 106.
[6 ]At that time styled custodes marinæ or maritimæ or capitanei navium, though the title of admiral is inserted in the Black Book owing to the date of the compilation of that book being later.
[1 ]The criminal cases tried, with juries (see The Ruckers (1801), 4 C. Rob. 73, note at p. 74), before the admiral, or his deputy, comprised all crimes and offences committed either upon the sea or on the coasts, out of the body or extent of any English county, including (by 15 Rich. II. c. 3) death and mayhem happening in great ships being and hovering in the main streams of great rivers below the bridges; but trial by jury ceased to be usual in Admiralty by the time of Henry VIII., and as the Court proceeded by way of accusation and information conformably to the civil law, “the exercise of a criminal jurisdiction there was contrary to the genius of the law of England: inasmuch as a man might be there deprived of his life by the opinion of a single judge, without the judgment of his peers, and besides . . . offenders might, and did frequently, escape punishment; for the rule of the civil law is . . . that no judgment of death can be given against offenders, without proof by two witnesses, or a confession of the fact by themselves.” 4 Bl. Com. 268.
[1 ]The Black Book of the Admiralty contains numerous references to the fees, commodities, and profits appertaining to the admiral by virtue of his office. See Rolls Series, vol. i. pp. 15, 171, 399, as to poundage on seamen’s wages; Ib. pp. 23, 145, 151, 173 as to share of prizes; Ib. pp. 173, 401, as to fees, &c.; Ib. pp. 151, 171, 223, 241, as to share in flotsams, &c. As to the fees appertaining to the admiral in the time of Sir Thomas Beaufort, see Roscoe’s Ad. Prac. (3 ed.) p. 8, note 2.
[2 ]See extract from report of 1829 at p. 50 of the Report (1864) of the Commissioners on the Court of Admiralty in Ireland. The inquisitions of the Cinque Ports seem to indicate “that an important—perhaps the chief—purpose of the (Cinque Ports’) Admiral’s Court was the collection of his perquisites and forfeitures” (see Marsden, Select Pleas (Selden Society), vol. ii. p. xxiii.); and the claims made by the Lord High Admiral to perquisites within the liberties of the Cinque Ports appear to have led to interminable disputes with the ports and their warden (see Ib. pp. xix. et seq.).
[3 ]According to the list of “fees, commodities, and profits appertaining to the admiral by virtue of his office,” and alleged to be of the time of Sir Thomas Beaufort, admiral 13 Hen. IV., the admiral took one moiety of waifs, flotsam, and ligan, all deodands (subject to reasonable salvage), all forfeited vessels under 30 tons, and over that tonnage if not required by the king, fourpence in every pound of wages to mariners, twenty pence for every pound recovered in his Court between party and party, two shares of every prize, and such fees for safe conduct as may be agreed. Black Book, Rolls Series, vol. i. pp. 397-401. See also the addition to the Inquisition of Queenborough, arts. 23 and 74, Ib. pp. 151-171. “The very large terms of the admiral’s patent induced him to make claims to wreck, royal fish, findalls, as well as to rights connected with the seashore which were wholly unfounded in law, and which helped to bring the Court and the office of the admiral into discredit”: see Marsden, Select Pleas (Selden Society), vol. ii. p. xviii. Prince George of Denmark surrendered all the rights, profits, and perquisites appertaining to the office to the use of Queen Anne, in return for a fixed increased pay, which was under George I. divided among seven commissioners; but the pay of the First Lord has since been increased, whilst droits of Admiralty are now paid into the Exchequer for the benefit of the public service.
[4 ]Flotsam, jetsam, and ligan (defined p. 25 Roscoe’s Ad. Prac. (3 ed.) ), belonged to the King, who granted them to the Lord High Admiral. They pass by the grant of wreck when cast upon the land, but if they are not cast upon the land the admiral hath jurisdiction and not the common law. 5 Rep. 106. The question of these emoluments occasioned a difference between King Charles II. and his Lord High Admiral, which was settled at the Council of March 6, 1665, when the interest of the King was separated from that of the Crown in the person of the Lord High Admiral and his office, and the Duke of York by deed assigned all droits to the King.
[1 ]Deodands are “things instrumental to the death of a man on shipboard, or goods found on a dead body cast on shore.” See Browne on the Civil Law, 2nd ed. vol. ii. p. 56; Coke, Inst. 3, 57; and Black Book, Rolls Series, vol. i. p. 397, note 1.
[2 ]This share of prize goods consisted of one-tenth after the Royal Navy was formed; but in early times, when the fleets consisted of ships of the subject, the king had one-fourth, the owner of the ships one-fourth, and the remaining half was divided between the admiral and those who took the prize. See Black Book, Rolls Series, vol. i. p. 21, No. 19 of Rules for the Admiral. For a list of the rights and emoluments belonging to the ancient office of Lord High Admiral of England, but returned to and vested in the Crown by surrender in the time of Charles II., see Sir Leoline Jenkins’ charge at the Admiralty Sessions, Life by Wynne, vol. i. p. xcviii. For a claim by the king jure coronæ, and in his office of Admiralty, see The Dickenson (1776), Marriott’s Decisions, p. 1. Although droits were reserved to the Crown after the office of Lord High Admiral was executed by commissioners, the Lords of the Admiralty acted as a board of revenue in collecting them, and accordingly appointed their own collectors by their own commission. See Instructions to the Receiver General of the rights and perquisites of the Admiralty, Marriott’s Decisions, p. 70. As to wreck at sea after a year and a day being a droit in Admiralty, and wreck on shore after the same lapse of time being the king’s jure coronæ, see Browne’s Civil Law, vol. ii. p. 49.
[3 ]See Black Book, Rolls Series, No. 21 of the Rules about matters which belong to the Admiralty, vol. i. p. 69, note 3.
[1 ]See Marsden’s Select Pleas (Selden Society), vol. i. p. xiv. As to the establishment of the Court of Admiralty by Edward III., see Spelman, Gloss. 13; Lambard, Archion, 49, both cited in 3 Bl. Com. 69; Beawes’ Lex Mercat. (1813), 6th ed. p. 400.
[2 ]Piracy, letters of reprisal and marque, were “the most noble and eminent piece of the jurisdiction of the Chancery.” See Sir M. Hales’ Jurisdiction of the Admiralty, Hargr. 93, p. 96. See also Rex v. Carew (1679), 3 Swanston, 669, at p. 670, where Lord Nottingham says: “I observed that this cause was properly in Chancery upon many accounts, not only as it was a scire facias to repeal letters patent, but as it was a cause of state, and likewise as it was a marine cause, and did concern depredations on the sea, in which cases the Chancery as well as the Admiralty hath a clear jurisdiction, and this appears by what was said in Peter Blad’s case (Ib. p. 603), and by many records and precedents cited in my Parliament MSS., tit. Admiralty and tit. Chancery, and is most expressly so settled and enacted in a statute not printed, viz. 31 Hen. VI.”
[3 ]Piracy was not felony at common law, and the proceeding for restitution was subsequently designated in the records of the Admiralty Court by the title of a causa spolii civilis et maritima. “There is said to be a fashion in crimes, and piracy, at least in its simple and original form, is no longer in vogue. Time was when the spirit of buccaneering approached in some degree to the spirit of chivalry in point of adventure, and the practice of it, particularly with respect to the commerce and navigation and coasts of the Spanish American Colonies, was thought to reflect no dishonour upon distinguished Englishmen who engaged in it.” See per Lord Stowell in The Hercules (1819), 2 Dods. 353, at pp. 370, 373, 374, 376.
[1 ]For an instance of the condemnation to the Crown, as droits of Admiralty, of the proceeds of property taken out of the possession of convicted pirates, see The Panda (1842), 1 W. Rob. 423. See also ib. p. 431, for a reference to the statute 27 Edw. III. c. 8, s. 2, by which foreign merchants spoiled of their goods at sea were to have restitution upon proof of their property in the goods without having to sue at the common law. By 22 & 23 Car. II. c. 11, s. 2, power was given to the Admiralty Court to punish the masters and officers of merchant vessels for misconduct in not resisting pirates. By 11 & 12 Will. III. c. 7, s. 11, officers and seamen who defended the ship against pirates might recover remuneration through the Admiralty Court. By 8 Geo. I. c. 24, any ship trading or corresponding with or supplying pirates, and any goods on board, might be forfeited and sued for in the Court of Admiralty. By 6 Geo. IV. c. 6, and 13 & 14 Vict. c. 26, the ancient jurisdiction of the Court was confirmed, by which it can adjudicate respecting the return to their rightful owners of goods found in the possession of pirates.
[2 ]The record is set out in part by Lord Coke (4th Institute, tit. Admiralty, 143), on the question of the rights of the admiral’s office, and by Selden (Mare Clausum, 275) in proof of the antiquity of the claim of the Kings of England to the dominion of the neighbouring seas. (See Edwards’ Adm. Jurisd. p. 10 et seq.) This portion of the record appears to be the draft of an instrument intended to serve by way of petition to certain commissioners appointed by the Kings of England and France as arbitrators in respect of disputes between English and French subjects as to depredations at sea which the English complained were acts of spoliation by French subjects, whilst the French alleged that the depredations had been committed under the orders of a Genoese commander in the service of France, who was “admiral of the sea,” and who had seized the English ships on behalf of the French King on the ground that they were carrying goods to the Flemings, enemies of the French King.
[3 ]Park, in his Marine Insurance (1842), vol. i. Introd. p. xlviii., states the commonly accepted view that the Rhodians promulgated “a system of marine jurisprudence to which even the Romans themselves paid the greatest deference and respect, and which they adopted as the guide of their conduct in naval affairs. These excellent laws not only served as a rule of conduct to the ancient maritime states, but, as will appear from an attentive comparison of them, have been the basis of all modern regulations respecting navigation and commerce. The time at which these laws were compiled is not precisely ascertained, but we may reasonably suppose it was about the period when the Rhodians first obtained the sovereignty of the sea, which was about 916 years before the era of Christianity.” The existence, however, of a code of Rhodian maritime law has been seriously questioned, since the work entitled the “Nautical Law of the Rhodians”—of which there is a manuscript in Greek dated 1478—has been shown to be a forgery (see Browne’s Civil Law, vol. ii. pp. 38, 39), and the alleged wholesale adoption of that law into the law of Rome hangs on a very slender thread, viz., the single Greek sentence in Dig. xiv. 2. 9, which has been translated: “Ego quidem mundi dominus, lex autem maris; lege id Rhodia, quae de rebus nauticis praescripta est, judicetur, quatenus, nulla nostrarum legum adversatur.” The meaning of this sentence, which depends on the punctuation, has been hotly disputed. It is put into the mouth of the Emperor Antoninus by way of reply to the petition of Eudæmon of Nicomedia, who had been ship-wrecked in Italy and plundered by tax-gatherers on one of the islands of the Cyclades. The reasonable inference seems to be that the island of Rhodes, from its central geographical position and natural capabilities, its naval power and its commerce, exercised in its palmy days considerable influence in maritime matters, and the usages of the sea as there observed between seafaring men and merchants were, no doubt, inquired into, and may have been in part accepted, by the Romans; though the only evidence of this consists in the heading “Of the Rhodian Law of Jettison” to the short title of the fourteenth book of the Digest of Justinian, the opening paragraph of which contains an extract from the chapter on the Rhodian law of jettison in the Sentences of Paulus, and the rest of the title consists of paragraphs from the writings of Paulus and other prominent Roman jurists whose names are prefixed to the extracts in which the principle as to contribution is worked out from their writings; but in all the other extracts in the Digest from the writings of Roman jurists on maritime law the authority of Rhodes is not given. See the whole subject discussed in the Report of the Buffalo Conference of the International Law Association, 1899; and for the headings of the more important subjects of maritime law dealt with in the Digest of Justinian, see Browne on the Civil Law, vol. ii. pp. 35, 507.
[1 ]See Ortolan’s Institutes of Justinian, vol. i. History of Roman Legislation, par. 529 et seq.
[1 ]The ordinances and customs of the Sea of Trani are stated in the preamble to have been published in the year 1063, and are alleged to be the most ancient body of mediæval maritime laws in existence. The thirty-two articles of which the ordinances consist are a series of decisions made by the maritime consuls of the guild of navigators at Trani, which was a leading city on the Adriatic coast in the eleventh century. The articles are set out in the Appendix to the Black Book of the Admiralty, Rolls Series, vol. iv. pp. 522-543. The third ordinance contains a departure from the Roman law of general average, presumably due to the organised system of piracy which existed in the eleventh century in the Adriatic. Another town, on the Adriatic, that of Amalphi, was a maritime port of some importance in the ninth century. In the tenth century it is alleged to have had a maritime court presided over by consuls of the sea, and at the same period formed commercial establishments in Sicily, and at Alexandria. In ad 1178, Amalphi obtained from the King of Jerusalem the privilege of having the disputes of its merchants, established in the ports of Syria, settled by their own consuls according to their own customs, and in 1190 a similar privilege was obtained from the magistrates of Naples. A manuscript containing the chapters and ordinances of the Maritime Court of the noble City of Amalphi, commonly called the Amalphitan Table, was discovered in the Imperial Library at Vienna in 1843. The date of the tables has been determined to be of the eleventh century, and they indicate a system of trade in which each voyage was a joint adventure, all the merchants on board being associated for the voyage with the ship and making up a common purse. The text of the sixty-six articles of which the table consists is set out in the Black Book, Rolls Series, Appendix, vol. iv. pp. 2-51.
[2 ]Black Book, Rolls Series, vol. i. Introd. p. lxix.
[3 ]See the seven chapters on Maritime Law in the “Livre des Assises” of the Latin kingdom of Jerusalem, set out in the Black Book, Rolls Series, Appendix, vol. iv. pp. 498-519. In the Court of the Merchants (or the Exchange Court) a Frank bailiff nominated by the Crown presided, assisted by two Franks and four Syrians as a jury, and it therefore partook of the character of an international Court.
[1 ]The Domesday of Ipswich, recording the laws and customs of that town, dates from 17 Edw. I., the book having been drawn up from the original Roll issued under the authority of a charter granted by King John in 1199. The text is set out in the Black Book, Rolls Series, Appendix, vol. ii. pp. 16-207. The jurisdiction of the sworn twelve “capital portmen,” elected from amongst the most fit, discreet, and wealthy of the burgesses, was abolished by the Municipal Reform Act (5 & 6 Will. IV. c. 76), s. 108.
[2 ]ad 1199, Rymer’s Fœdera, i. 111.
[1 ]The text of the customs of Oleron is given in the appendix to the Black Book of the Admiralty, Rolls Series, vol. ii. pp. 254-397.
[2 ]See Art. 87 of the Coutumier of Oleron with reference to a dispute as to the sale of a ship between two part owners, both being Bretons. Black Book, Rolls Series, vol. ii. p. 385.
[3 ]Roscoe’s Ad. Prac. (3 ed.) p. 13.
[4 ]See Black Book, Rolls Series, vol. i. Introd. p. lxii.
[5 ]In the lengthy controversy which has been maintained on the question of Richard I. publishing the roll of Oleron as laws of the sea in the island of Oleron, the difficulty appears to be that that king did not visit the island on his way home from the fourth Crusade, and that the roll in question does not contain ordinances but judgments. See Black Book, Rolls Series, vol. i. Introd. p. lvii. et seq.; vol. ii. Introd. pp. xlviii., li. et seq.
[1 ]A copy of the Rolls of Oleron also exists in the Guildhall of the city of Bristol which appears to date from 18 Edw. III. See Black Book, Rolls Series, vol. i. Introd. pp. lviii.-lxi.
[2 ]The writing of the existing book is of a period not earlier than the reign of Henry VI. There is good reason for assuming that this part was compiled from earlier sources after the appointment of Sir John Beauchamp to be admiral of all the fleets of ships south, north and west, in 1360. See Black Book, Rolls Series, vol. i. Introd. p. xlvi.
[3 ]Articles 16 and 17. See Roscoe’s Ad. Prac. (3 ed.) p. 6.
[4 ]Article 18 regulates the mode of arresting vessels (that is, private ships) and men for the king’s service, and, after referring to an ordinance made at Grimsby by Richard I., states that the court of the admiral is a court of record, which it continued to be at the time of 13 Rich. II. c. 5 (see Black Book, Rolls Series, vol. i. Introd. p. xlvii., and p. 67, n. (1), after which it appears to have lost its position until restored by 24 Vict. c. 10, s. 14. That it was a court of record is denied in Sparks v. Martyn (1680), 1 Ventr. 1; Pane v. Evans (1675), 1 Keb. 552; see also Brooke’s Abr., tit. “Error,” 177. “The Admiralty is said to be no court of record on account of its proceeding by the civil law.” Beawes’ Lex Mercat. (1813), 6th ed., p. 401; 4 Inst. 135.
[5 ]See Black Book, Rolls Series, vol. i. Introd. p. lvi.
[6 ]They correspond with the twenty-four articles in the old Flemish tongue, known as the “Judgments of Damme,” which are a translation of the judgments of Oleron, and constitute the earliest body of sea laws in use amongst the merchants of Damme and Bruges, and the shipowners and shipmasters who frequented the port of Sluys in the fourteenth century. These articles, which purport to be “a copy of the Rolls of Oleron of the Judgments of the Sea,” have been preserved in the Purple Book of Bruges, the text of which is set out in the Black Book, Rolls Series, Appendix, vol. iv. pp. 302-333.
[1 ]Black Book, Rolls Series, vol. i. Introd. p. lxi., citing Prynne’s Animadversions, p. 117.
[2 ]In The Gas Float Whitton, No. 2,  P. 42, Lord Esher refers to these articles and argues that, as the mariners were at liberty to cut off the head of a pilot who lost a ship, the penalty is so barbarous that it is ridiculous to suggest that the laws of Oleron “are part of the English law”; but the early period in our history, when they appear to have been used as rules for the decision of maritime causes in Courts of the sea, must be taken into account, the law of the sea providing a summary remedy with a view to deter a pilot from casting away the ship when in league with the lord of the soil and with wreckers lying in wait on the beach. (See Roscoe’s Ad. Prac. (3 ed.) p. 24.) Browne, writing in 1802 (Civil Law, vol. ii. p. 210), says: “The instance Court is governed by the civil law, the laws of Oleron, and the customs of the Admiralty, modified by statute law.” On the other hand, Molloy, De jure maritimo (1722), 7th ed., writes (p. 285): “By the laws of Oleron, if his (the pilot’s) fault is notoriously gross, that the ship’s crew sees an apparent wreck, they may then lead him to the hatches, and strike off his head; but the laws of England allow no such hasty execution,” and Lord Tenterden (Abbott’s Treatise on Merchant Ships and Seamen, 5th ed. p. xi.) says: “It should be observed, however, not only of all these treatises, but also of the civil law, and the ordinances (viz. the ordinances of Oleron, and Wisbuy, the two ordinances of the Hanse Towns, and the Ordinances de la Marine of 1681), without excepting even the ordinance of Oleron (which, being considered as the edict of an English prince, has been received with peculiar attention in the Court of Admiralty), that they have not the binding force or authority of law in this country, and that they are here quoted, sometimes to illustrate principles generally admitted and received, sometimes to show the opinion of learned persons, and the rule adopted in maritime nations upon points not hitherto settled by the authority of our own law; and at other times to furnish information that may be useful in our commercial intercourse with foreign states.” But it would seem probable that litigants resorting to the Admiralty Court would expect to have their disputes settled summarily, according to the usages to which seafaring men were accustomed; and the principles upon which actions for damage to cargo are based, and which were derived by the Admiralty Court from the customs of the sea (chaps. xviii., xix., xx. Consolato del Mare, Black Book, Rolls Series, vol. iii. pp. 92-95), will be found formulated in the Admiralty Court Act of 1861; so the provisions of art. 3 in the customs of Oleron (Black Book, Rolls Series, vol. ii. p. 213), as to the duty of the master and mariners in the preservation of the ship, and also arts 13, 14 et seq. in the Amalphitan table (Black Book, Rolls Series, vol. iv. p. 11), as to the support of a mariner ill or absent on business of the ship, will be found incorporated in the Merchant Shipping Act, 1854, having previously been acted upon by Admiralty judges. See further as to the law governing the Court of Admiralty: The Neptune (1834), 3 Hagg. 129, at p. 136; The Eliza Cornish (1853), 1 Spinks, 36, at p. 45; The Saxonia (1862), Lush, 410; The Patria (1871), L. R. 3 A. & E. 436, at p. 461. “The law which is administered in the Admiralty Court of England is the English maritime law. It is not the ordinary municipal law of the country,” per Lord Esher in The Gaetano and Maria (1882), 7 P. D. 137, at p. 143.
[1 ]The next following 52 articles, under the letter D., are an addition of later date to the Inquisition of Queenborough, Arts. 45, 46, and the inquiry to be made under art. 47 refers to the judgments of Oleron as to assaults by a mariner on the master, disobedience of the commands of the master, and as to pilots; so in art. 60 as to removal of anchors.
[2 ]In 1357 the King of Portugal complained that Portuguese goods had been taken by the English from a French ship which had “spoiled” a Portuguese vessel. Held that the goods were good prize. See Marsden’s Select Pleas (Selden Society), vol. i. Introd. p. xli.
[1 ]For a summary of these contracts relating to masters and mariners and other matters within the laws of Oleron, see charge by Sir Leoline Jenkins, 1668, Life by Wynne, vol. i. p. lxxxvii.
[2 ]In 1364 the reason given for a supersedeas to justices to stay proceedings on an indictment for a nuisance by driving piles into the bed of certain creeks near Colchester is that the matter had been dealt with in the court of the admiral, and the court seems to have been recognized as a court of record. In 1369 an action on a charter-party was tried before the admiral, and an action in the same matter in the Sheriff’s Court of London was stayed on production of the admiral’s certificate. See Marsden’s Select Pleas (Selden Society), vol. i. Introd. pp. xlv., xlvi.
[3 ]As to what is infra corpus comitatûs, see Com. Dig. Ad. E. 14; Jacob’s Law Dict. “Admiral.”
[4 ]Institute, 134, 135.
[5 ]These towns had either by charter granted by the Crown exemption from the admiral’s authority or had express grants of Admiralty jurisdiction, whilst some of the statutes relating to the admiral’s jurisdiction contain an express saving of seaport towns. By sect. 108 of the Municipal Reform Act, 1835 (5 & 6 Will. IV. c. 76), courts possessing Admiralty jurisdiction created by charter, with the exception of that of the Cinque Ports (Roscoe’s Ad. Prac. (3 ed.) p. 5), were abolished. Amongst these old local maritime courts so abolished were the Maritime Court of Ipswich (ib. p. 15), the Admiralty Court of Yarmouth, in existence prior to Edward III., and which claimed exemption from the Admiral’s jurisdiction in the reign of Edward IV. and obtained it by charter from Queen Elizabeth in 1559, the reservation in cases of piracy being removed by James I. (As to the borough rolls of this town, see Marsden’s Select Pleas (Selden Society), vol. i. Introd. p. xiv.). The Admiralty Court of the Borough of Poole has records going back to 1550; the Admiralty jurisdiction of the town of Southampton was granted in 23 Hen. VI. As to the Admiralty jurisdiction of the Mayor of Newport in the Isle of Wight, see Raikes & Kilburn’s Admiralty Jurisdiction in County Courts, pp. xxxi.-xxxiii., where also will be found references to the Admiralty jurisdiction existing by prescription or charter prior to 1846 (9 & 10 Vict. c. 99, ss. 21, 40) of Kingston-on-Humber in Yorkshire, Boston in Lincolnshire, King’s Lynn in Norfolk, Dunwich and Southwold in Suffolk and Harwich and Malden in Essex. The exemption of Bristol from the Admiral’s jurisdiction was confirmed by charter of Henry VI. and Edward IV. Newcastle-upon-Tyne had a Maritime Court as early as Henry II. See Stubbs’ Select Charters, p. 107. In 1383, in a case in the King’s Bench in which application was made to obtain execution of a judgment obtained in the maritime Court held at Padstow (Aldestowe), it was asserted that that town was an ancient seaport, the liberties of which were confirmed by Magna Charta, including jurisdiction in maritime causes. The defendant made default in appearance and his vessel was attached. The trial took place before the mayor and burgesses with a jury of mariners and merchants, and the evidence was given by witnesses on oath. The case was settled on the production of the king’s letters patent protecting the defendant, see Marsden’s Select Pleas (Selden Society), vol 1. Introd. p. xlix. As to the Vice-Admiralty jurisdiction of counties and districts derived from the Lord High Admiral, the Admiral of the Cinque Ports, or the Admiral of the North and West, with an appeal to the Admiralty Court, see Clerke’s Praxis, tit. 56; and Sir Sherston Baker’s Vice-Admiral of the Coast (1884); and as to the Admiralty coroner, see ib. p. 21. The terms of the letters-patent of Lord Wodehouse, Vice-Admiral of the County of Norfolk, 1838, are set out in 2 W. Rob. 254, note (a). Any military power that may have been possessed under grants made by the Crown in early times to persons to exercise Admiralty jurisdiction within certain places independently of the Lord High Admiral has long ceased to exist, and their Admiralty jurisdiction only extends to the civil rights conferred on them, such as the right to wrecks and other droits of Admiralty found within the limits of their manors, and these rights are now controlled by the general statutory provisions consolidated by the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), Part IX. ss. 523-529.
[1 ]The petitions to the king and parliament complained inter alia of the removal of causes from the west to the key of William Horton at Southwark in London. See Marsden’s Select Pleas (Selden Society), vol. i. Introd. p. li. It would seem that the courts of the admirals of the north, south, and west, now fell into disuse, in favour of the curia principalis admiralitatis angliæ, which, according to the ancient custom of the Admiralty, sat upon the key “juxta fluxum maris.” In the reign of Henry VIII. Orton key, near London Bridge, was a usual place of sitting, see Prynne’s Animadversions, pp. 82, 402. In the reign of Charles II. the Court sat in St. Margaret’s Church, in Southwark, see Pepys’ Diary, 17 March, 1663, and Sir Sherston Baker’s Vice-Admiral of the Coast, pp. 27, 28. During the plague the Court sat in Jesus College, Oxford, see Wynne’s Life of Sir L. Jenkins, vol. i. p. ix. About 1675 it was removed to the hall of the College of Advocates, Doctors’ Commons. In 1860 it sat at Westminster, and now, as a branch of the High Court, it sits at the Royal Courts of Justice, Strand.
[1 ]By the law of Rome (Cod. xi. 5, De Naufragiis, 1. 2), the treasury (fiscus) was not allowed to profit by the disaster of a shipwreck, the property remaining with the owners, or if unclaimed it was retained for a year. Any abstraction of fragments or prevention of succour to the shipwrecked persons was rigorously punished (Dig. 47. 9, De naufragio. &c., l. 3, § 8; l. 7; l. 12), both the actual parties concerned and the owner of the land where the vessel went ashore being required to find sureties to appear before the president of the province, whilst the exhibition of a light by fishermen to mislead a vessel and so cause her destruction involved heavy penalties. By Dig. 14. 2, De Lege Rhodia de jactu, 2. § 8, property thrown overboard to lighten a vessel only became the property of the finder if intentionally abandoned; otherwise (Dig. 47. 2, De Furtis, 43. § 11) he who carried them off from the shore or fished them up from the bottom of the sea committed theft. This view as to the restriction on the right of the first occupant is contained in art. 31 of the Roll of Oleron (Black Book, Rolls Series, vol. ii. p. 469), and by art. 45 (Ib. p. 477) salvors were to be remunerated for their trouble in getting up anchors and cables slipped, which were not deemed lost unless the owner could not be found, in which case the lord took his share and the salvors theirs. But the tendency to claim a distinct share in the property of persons in distress at sea is shown by art. 19 of the Ordinances of Trani (Black Book, Rolls Series, vol. iv. p. 537), which modifies the Roman law by giving the finder of goods floating on the sea one-half if delivered up to the court, and the owner found; but if at the end of thirty days the owner did not appear, the whole belonged to the finder. By art. 20, in the case of goods under water, and marked, two-thirds belonged to the finder. In the result the humane principles of the Roman law, which had tended to soften the barbarous usages of earlier times, were obliterated by a return to that inhumanum jus naufragii to which Blackstone alludes (see 1 Bl. Com. 293), which involved the sufferers by shipwreck not only in the forfeiture of their property to the lords of the soil, but they themselves were often sold into slavery, until the effects of the Crusades in stimulating international commerce, and the efforts of the Church, brought about a partial renunciation by the local authorities of the right of wreck.
[1 ]See Wynne’s Life of Sir L. Jenkins, Argument before the House of Lords, vol. i. p. lxxviii.
[2 ]This Act was repealed in 1861 by sect. 31 of the Admiralty Court Act, 24 Vict. c. 10.
[3 ]E. g., the patent of the Earl of Pembroke in 1708.
[1 ]“Of the right of pressing or seizing of ships or mariners for service publick,” see Molloy, De jure maritimo, 7th ed. (1722), chap. vi.
[2 ]An Ordinance of King John (Black Book, Rolls Series, Rule No. 25, vol. i. p. 73) required the admiral to make inquisition as to unlawful claims of customs or tolls on the coast, except for anchorage, and another in 1201, that vessels meeting the king’s ships must lower their upper sails, otherwise they would be seized and forfeited as enemies’ goods and the crews imprisoned: see No. 35 of the laws of Oleron, Black Book, Rolls Series, vol. i. p. 129. The date of this Ordinance has been much disputed, but beyond the fact that the language has been altered to suit the time when the Black Book was written, and that it is inserted in the laws of Oleron as if those laws then existed in England, there seems no reason to doubt its accuracy. This provision as to vailing the bonnet is cited by Selden in his Mare Clausum, bk. 2, c. 26 (1635), in support of the supremacy asserted by the Crown of England to the sovereignty of the Narrow Seas, and was rigorously enforced at the time that that claim was put forward, any disrespect being severely punished. See Molloy, De jure maritimo, 7th ed., p. 79. For a late case, see that of The Native in 1829 (3 Hagg. 97), where the master of a schooner was arrested for contempt in not lowering his royal when passing a man-of-war. This offence (as well as that for secreting seamen in fraud of the public service) has been long unknown in practice, and when proceedings were instituted by the Admiralty proctor they usually terminated by an apology and payment of costs. Similarly it was an offence against the laws of the sea and ancient constitutions of the Admiralty to carry a flag not easily distinguishable from the king’s jack. See the paragraph from a charge of Sir Leoline Jenkins set out in a note to The Minerva (1800), 3 C. Rob. 34. See also The King v. Miller (1823), 1 Hagg. 197. For the procedure in the case of such a complaint, see the evidence of Sir Herbert Jenner at pp. 35, 297, of the report of the Select Committee on the Admiralty Court, 1833, and Reg. v. Ewen (1856), 2 Jur. N. S. 454. The penalties for unduly assuming the British character, are now included under the headings “National Character and Flag” and “Forfeiture of Ship,” in the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), ss. 68-76. The jurisdiction of the High Court with reference thereto is, by the Merchant Shipping Rules, 1894, s. 1, assigned to the Probate, Divorce and Admiralty Division, that is, to the Admiralty Court.
[1 ]See Black Book, Rolls Series, vol. i. p. 3.
[2 ]The word “lieutenant” was held to apply to the judge. See Wynne’s Life of Sir L. Jenkins, vol. ii. p. 706.
[3 ]This implies the existence of a maritime law and body of ancient customs already in use. By art. 5 the admiral is to take care that the whole office be well executed and justice done to all parties “according to the law and ancient custom of the sea.” By art. 6 the admiral is to have letters of aid from the king directed to the sheriffs of counties, and other officers of the king.
[4 ]See Black Book, Rolls Series, Appendix, vol. i. p. 409.
[5 ]The deputies or vice-admirals, and their lieutenants or judges were appointed under the Admiralty seal in the principal ports of the kingdom and its dependencies, and constituted the Vice-Admiralty Courts with an appeal to the High Court of Admiralty, see The Fabius (1800), 2 C. Rob. 245. As to the appointment and jurisdiction of Vice-Admirals, see Sir Sherston Baker’s Vice-Admiral of the Coast, chap. v. As to Vice-Admiralty Courts, see Browne’s Civil Law, vol. 2, chap. xii. In 1833, by 3 & 4 Will. IV., c. 41, appeals from Vice-Admiralty Courts abroad were transferred to the Judicial Committee of the Privy Council.
[1 ]See Rymer’s Fœdera, 6, 170, and Marsden’s Select Pleas (Selden Society), vol. i. Introd. p. xlii.
[2 ]See Rymer’s Fœdera (Record ed.), iii. 505 and 597.
[3 ]See the material words of the patent of Sir Leoline Jenkins, set out in one of his letters, Life by Wynne, vol. ii. p. 706.
[4 ]See Marsden’s Select Pleas (Selden Society), vol. i. Introd. p. lv. The Court of Requests also exercised Admiralty jurisdiction by delegation from the Privy Council in matters of salvage, spoil, piracy, letters of reprisal and prize. Some of the judges of the Admiralty Court were masters of this Court, see Marsden, ib. p. lxv. Sir J. Cæsar, judge of the Admiralty Court, 1584, states that the procedure was according to the process of summary causes in the civil law, see Leadam’s Select Cases in the Court of Requests (Selden Society), vol. xii. p. xxi.
[5 ]Set out in Rymer’s Fœdera, 13, 700.
[1 ]“Breviter, summarie et de plano, absque strepitu judicii et figura, sola facti veritate attenta, prout de usu et consuetudine maris fieri est assuetum.” See chap. xxxvi. of the Judicial Order of the Court of the Consuls of the Sea, set out in the Appendix to the Black Book, Rolls Series, vol. iv. p. 489. Under Imperial Rome maritime causes were directed to be heard without delay before the competent judge in each province. Code xi. 5 (De Naufragii), 5.
[2 ]De Lovio v. Boit (1815), 2 Gall. 398, at p. 400.
[3 ]The Consolato del Mare was a collection of the customs of the sea observed in the Consular Court of Barcelona, and called “Chapters of the Sea.” The collection received many additions and acquired the name of the “Consulate” early in the fifteenth century. The so-called book of the Consulate is a volume printed at Barcelona, in the Catalan tongue, in 1494, and was drawn up by the notary of the Consular Court for the use of the consuls of the sea at Barcelona. The first part of the book consists of regulations for the procedure to be observed by the consuls of the sea at Valencia, who appear to have been first established by King Peter III. of Aragon, in 1283, but from internal evidence the date of this part of the book is not earlier than ad 1336. Next come the Constitutions and Customs of the Sea, of which the date is not earlier than ad 1340. The third part is a treatise on cruisers, which from the use of the word “admiral” cannot be earlier than the middle of the fourteenth century. Then follow eleven documents dating from ad 1340 to 1488. See the whole subject of the dates of the various parts of the book learnedly discussed by Sir Travers Twiss in the Appendix to the Black Book, Rolls Series, vol. ii. Introd. pp. lx.-lxx., and that portion of the book of the Consulate of the Sea which contains the Customs of the Sea, and which constituted the important part of the maritime customs of Europe in the fourteenth century, is printed in the Appendix to the same work, vol. iii. pp. 50-657.
[1 ]See chap. xxii. of the Judicial Order of the Court of the Consuls of the Sea, Black Book, Rolls Series, App. vol. iv. p. 473.
[2 ]The Court consisted of two consuls and a judge of appeal annually elected from amongst the masters and mariners constituting the Guild of Navigators. The consuls were paid by a poundage on the amount of the claim, and the judge of appeal by a poundage on the amount adjudged to be due by the consuls. On election the consuls took an oath to do justice alike to rich and poor, and the judge of appeal was presented to the King’s procurator for appointment. A scribe was then appointed to whom the custody of the seal of the Court was entrusted. (The Registrar of the Admiralty Court in England was also called a scribe, see list of fees appertaining to the scribe of the Court of Admiralty, Black Book, Rolls Series, Appendix, vol. i. p. 403.) The consuls and the judge of appeal might be represented in their absence by members of the Guild of Navigators, as in the case of members of the College of Advocates in London who could act as surrogates of the judge of the High Court of Admiralty.
[1 ]See this oath (sacramentum calumniæ) in the order of procedure, or Praxis Curiæ Admiralitatis, Black Book of the Admiralty, Rolls Series, vol. i. Introd. pp. xxxiv., 188.
[2 ]This indicates that the authority of the consuls was primarily introduced to interpose them as arbitrators between the representatives of the Guild of Merchants and those of the Guild of Mariners.
[1 ]Roscoe’s Ad. Prac. (3 ed.) p. 18.
[2 ]Ib. p. 18.
[3 ]Ib. p. 18.
[1 ]What has become of the earlier records is not known. See Marsden, Select Pleas (Selden Society), vol. i. p. lx.
[2 ]“An author of undoubted credit,” per Lord Hardwicke in Sir Henry Blount’s Case (1737), 1 Atkyns, 295, at p. 296.
[3 ]For the summary procedure in marine civil matters, see Ridley’s View of the Civil and Ecclesiastical Law (1639), 3rd edit. p. 94. See also Godolphin’s Admiral Jurisdiction, 2nd edit. (1685), p. 41.
[4 ]Edit. 1722, tit. 1.
[5 ]Beawes’ Lex Mercat. (1813), 6th edit. p. 401.
[6 ]See 3 Bl. Com. 108, citing Clerke’s Praxis.
[7 ]See The Assunta,  P. 150, at p. 152, note (3).
[1 ]See a form of bond to pay what may be adjudged due in the action: The Robert Dickinson (1884), 10 P. D. 15.
[1 ]“Si habuerit aliqua bona, merces, vel navem aut naviculam super mare vel intra fluxum aut refluxum maris ac jurisdictionem domini Admiralli, impetrandum est warrantum ad hos effectus: viz., ad arrestandum talia bona, vel talem navem, ad N. reum debitorem spectantia in quorumcunque manibus existentia, et ad citandum apud bona hujusmodi N. debitorem in specie, ac omnes alios in genere jus aut interesse in bonis hujusmodi habentes, aut habere prætendentes, ad comparendum tali die, M. in quâdam causâ civili et maritimâ de justitiâ responsurus.” Clerke’s Praxis, edit. 1743, tit. 28.
[2 ]Beawes’ Lex Mercat. (1813), 6th edit. p. 402.
[1 ]The appeal from the Instance Court lay to the King in Chancery, who appointed delegates by commission to hear and determine it. The effect of 2 & 3 Will. IV. c. 92, 3 & 4 Will. IV. c. 41, and 6 & 7 Vict. c. 38, was to abolish the old Court of Delegates (which had been the Court of Appeal from the Instance Court since 8 Eliz. c. 5 made the appeal final), and substitute an appeal to the Judicial Committee of the Privy Council for report to the Sovereign. By sect. 18 of the J. A. 1873, and sect. 4 (3) of the J. A. 1891, the jurisdiction of the Judicial Committee upon any judgment or order of the Admiralty Court was (except as to prize) transferred to the Court of Appeal.
[1 ]Per Fry, L. J., in The Heinrich Bjorn (1885), 10 P. D. 44, at p. 54. The learned judge adds, “or by proceedings against the real property of the defendant within the realm.” As to this, see the mode of satisfying a judgment out of real property, in the absence of moveables, indicated in the above-mentioned Valencian Regulations (Roscoe’s Ad. Prac. p. 36); but in the Admiralty Court the stipulations, in the nature of a recognizance, entered into by the principal parties and their sureties, only affected body and goods, not lands. “The Court of Admiralty may cause a party to enter into a bond, in nature of caution or stipulation, like bail at common law; and if he render his body, the sureties are discharged; and execution shall be of the goods, or the body, &c., not of the lands”: Beawes’ Lex Mercat. (1813), 6th edit. p. 402. These stipulations were not under seal from fear of prohibition, and for a similar reason the principal parties and their sureties, each time they entered into a stipulation, expressly submitted to the jurisdiction of the Court, and consented, that in case of default in the performance of the conditions, the Admiralty process should issue against them. In other respects the stipulation followed the practice of the civil law with regard to fidejussory cautions, and the sureties on both sides on behalf of the principal party undertook to pay the condemnation or sum agreed, and costs (judicatum solvi), to appear from time to time, and at the hearing, to abide the sentence (de judicio sisti), and to ratify the acts of the proctor (de rato). The bail were not liable beyond the extent of their fidejussory caution, and the security did not extend to the Court of Appeal, where the principal party had to obtain fresh fidejussors. See Browne on the Civil Law (quoting Clerke), vol. ii. pp. 408-412.
[1 ]In 1684 Saunders, C. J., observed that “nothing was more frequent than for the Admiralty to arrest ships riding in the river, that it was done every day for mariners’ wages and other maritime causes”: Sandys v. East India Co., Skinner, 91, at p. 93.
[2 ]Taylor v. Best (1854), 14 C. B. 487, argument of Mr. Willes, pp. 510, 511.
[3 ]Castrique v. Imrie (1870), L. R. 4 H. L. 414, per Lord Blackburn, at p. 430.
[4 ]Owing to the pressure of the courts of common law exercised by prohibiting actions against individuals personally whilst they allowed actions to proceed when based upon a claim over the res (Johnson v. Shippen (1704), 2 Ld. Raym. 982, at p. 984), the Admiralty Court was driven to arrest property in the first instance, on the ground of hypothecation or lien, so as to have jurisdiction quoad the res. and avoid the question of jurisdiction quoad the owner, with the result that the proceeding by arrest of the person compelling bail to be given to submit to the jurisdiction of the Court became obsolete, and the practice of attaching the goods or a ship of a party who could not be found, or who lived in a foreign country, to compel appearance also fell into disuse. See Browne’s Civil Law, vol. ii. pp. 434, 435. Hence, Browne, writing in 1802, commences his chapter on the practice of the Admiralty Instance Court with the remark that “Clerke in his Practice begins with the process in personam . . . we shall begin with the process in rem as the most usual and frequent.” He goes on to say that “proceedings in rem take place principally in suits for seamen’s wages, when they proceed against the ship or cargo, this being their most expeditious mode, though they may also have their remedy against the master or owner (as is the constant practice, and admitted to be right in Howe v. Napier (1766), 4 Burr. 1945), in suits on hypothecation, or bottomry bonds, in which the ship and goods are solely and specifically bound; in suits insisting on a right of possession, where there is a clear constat of the property, as where one part-owner unjustly refuses possession of the ship to the master nominated by the majority of his part-owners; and in actions for collision, where there is no pretence for making the owner answerable, or demanding reparation, as against him, beyond the value of the ship, for against the master, according to Bynkershoek, there is remedy in solidum, and beyond the value of the ship. . . . When the proceeding is against the ship, the action being entered, and an affidavit of the debt made by the person on whose behalf the warrant is prayed, or by his lawful attorney, process commences by a warrant directed to the marshal of the Court, commissioning him to arrest the ship or goods, or both; which warrant contains also a citation to the master of the ship in particular, and all others in general, having or pretending to have an interest in the said ship, her tackle, apparel and furniture, or (as the case may be) in the cargo or goods, to appear personally on a day, and at a place therein named, to answer and defend, in a certain cause, civil and maritime. This warrant is executed by producing the original before the master and crew, and affixing a copy to the mast of the ship; after which an affidavit must be made of the following tenor, to wit, that the deponent did arrest the ship mentioned in the warrant thereunto annexed, her tackle, apparel and furniture; and that he did cite all persons in general, and those requisite in special, to appear as above. . . . This warrant and affidavit or certificate are then to be returned, and if there be any apprehension of the ship’s being carried to sea, the sails may be taken on shore or a custodee put on board. The ship being thus arrested, a proctor appears for the promovent and makes himself party for him; and either the owner will appear to defend his interest, and by voluntarily entering into a stipulation, give jurisdiction to the Court over him personally, or by not entering an appearance (which, perhaps, if the demand exceed the value of the ship, he may think superfluous), may oblige the Court to proceed for defaults, which word here signifies non-appearance. The proceeding for defaults is as follows: The warrant which issued against the ship having been returned with the marshal’s certificate of its execution, and a proctor having appeared for the promovent, and none of the persons generally or specially cited appearing on the day or at the place assigned, after being thrice publicly called in Court, their contumacy is accused; and in pain of this contumacy, the ship, or rather they, are said to incur the first default, and then time is given to them to appear on the next court day, which is technically called continuing the certificate of the execution of the warrant to that day. This step is repeated four times, on four successive court days . . . and then, the four defaults being incurred . . . the proctor of the complainant exhibits a summary petition . . . reciting the cause of suit, the party cited having been thrice called and not appearing, and his standing in contempt by having incurred four defaults, whereupon the oath required by law having been made, viz., of the debt, the proctor of the complainant prays right and justice, and to be put in possession of the ship, her tackle, apparel and furniture to the extent of the debt . . . and for the expenses. This article or allegation being porrected to the judge, with a schedule of expenses to be taxed, and an oath of their necessity, and the parties being again thrice called and not appearing, the judge pronounces them to be contumacious, and in pain of their contumacy admits the article, and the instruments on which the suit or debt is founded, e. g., a bottomry bond, being exhibited to him . . . a first decree is porrected to the Court, and by it read, signed and promulged, and the expenses taxed. By this first decree . . . the Court decrees that the complainant shall be put in possession of the ship, her tackle, apparel and furniture, or, as the case may be, of all the goods, wares or merchandise, now or lately on board the same, to the extent of the debt, if the things so possessed be sufficient, and if not, as far as their value, security being first given to answer for the same to any person claiming right or intervening for their interest within a year. . . . No second decree is necessary in the Court of Admiralty, where the proceeding is in rem, the first decree by the civil law giving nude possession, and the lapse of a year producing a possessory right and enjoyment of the fruits.” But the possession of the thing gives no power over the proceeds; a subsequent application to the Court is therefore necessary (The Exeter (1799), 1 C. Rob. 173, at p. 175) for a decree of sale and possession of the proceeds, usually obtained as matter of form on “an allegation of the perishable condition of the ship, and of its actual or probable deterioration by time, concluding with a prayer that the ship may be appraised and valued and decreed to be sold, and that the moneys arising therefrom be brought into the registry. . . . Upon this the Court decrees a perishable monition, i. e., it decrees all persons to be monished (by affixing an original monition on the Royal Exchange, and by leaving there affixed a true copy thereof) to appear in Court on a certain day and hear an allegation as to perishable condition, and witnesses being there sworn, or a commission issued to take their depositions, and such their depositions published, to shew cause why the ship should not be exposed to public sale, and the money proceeding from the sale be brought into the registry for the use of all persons interested, with the usual intimation. The cause is then assigned to be heard summarily on perishable condition, which appearing by the attestations, the judge decrees a commission to sell the ship or cargo or both, as the case may be, the proceeds to be brought into the registry for the use of all persons interested. The proceeds of the sale being brought into the registry, the Court exercises its discretion over them, giving priority, where there are various suitors, according to precedence in commencing the suit . . . and decreeing the balance over and above the principal demand of the promovent’s to be paid over to the true owner, saving the demands of any persons legally intervening in the cause pro interesse suo. It is very usual for the impugnant or some other person interested to come in while the defaults are running, or after they are all incurred, or even within a year after the first decree obtained, and on giving security and paying all costs to be admitted to defend,” and if the bail was sufficient the ship was released. The libel and all the proceedings were sometimes vivâ voce, but usually the party appearing was sworn to give in his personal answer before a day assigned, which if he omitted to do he was attached, though he could not be visited with a fine or pecuniary penalty, as the Admiralty Court was not a Court of record. The proceedings then went on up to the definitive sentence in a similar way to a personal summary cause in the Ecclesiastical Court, and are given in detail in Browne’s Civil Law, vol. ii. p. 413 et seq.
[1 ]Roscoe’s Ad. Prac. p. 7.
[2 ]This synchronises with the formal declaration by Parliament in 1534 of the supremacy of the Crown in ecclesiastical matters, and the Admiralty Court was always associated in its methods and practice with the Ecclesiastical Courts which were, at this time, undergoing reform.
[1 ]See the letter (1598) set out in Burrell’s Admiralty cases by Marsden, pp. 232, 233.
[2 ]See the agreement set out in Prynne’s Animadversions, p. 98, and in Edwards’ Admiralty Jurisdiction, p. 21.
[1 ]Lord Coke (4th Inst. 136) says that though, in 1611, this agreement was read over in the presence of King James I. and in the hearing of the judges, they did not assent to it.
[2 ]See Carter’s Outlines of Legal History, p. 140.
[3 ](1610), 2 Brownl. & G. pt. 2, 37.
[1 ]In his view of the Admiralty jurisdiction (4 Inst. 134 to 147), Sir Edward Coke also adduces a number of cases before 13 Rich. II. to disprove the extent of the jurisdiction claimed for the Admiralty; but in Smart v. Wolff (1789), 3 T. R. 323, which was an application for a prohibition to the Prize Court, Buller, J., observes, at p. 348, that these statements are to be received with caution, and adds that Lord Coke “seems to have entertained not only a jealousy of, but an enmity against,” the Admiralty.
[2 ]Palmer v. Pope (1612), Hobart, 79, 212.
[1 ]Sir Henry Constable’s Case (1601), 5 Rep. 106. See also Sir L. Jenkins’ charge at the Admiralty Sessions, Life by Wynne, vol. i. p. xci.
[2 ]After applications to the Council and to the Chancellor to interfere by way of supersedeas and certiorari had been found to fail.
[3 ](1782), 2 Dougl. 612 (n). In this case the foundation and nature of prize distribution in the Court of Admiralty is explained by Lord Mansfield. Sir Julius Cæsar in the reign of Queen Elizabeth, and Sir Henry Vane in the time of Charles I., were eminent judges of the law of prize. Sir Leoline Jenkins in 1664, with the assistance of other civilians, drew up a body of Rules and Ordinances on the adjudication of prizes, for the guidance of the judge of the Admiralty, which was approved by King Charles II. Sir Thomas Exton in the time of Charles II., and Sir Charles Hedges in the reigns of King William and Queen Anne, were also eminent judges in the law of Prize; but the most distinguished judge was Lord Stowell (see Roscoe’s Ad. Prac. (3 ed.) p. 57), whose judgments during a time of successive hostility with most of the European states have excited universal admiration. According to Marsden (Select Pleas, Selden Society, vol. ii. p. lxxix.), the separation of Prize from Instance business was made shortly after the restoration. The judge of the High Court of Admiralty has hitherto by royal warrant exercised in time of war the office of judge of the Prize Court which is deemed distinct from the ordinary court, that is, the Instance Court. Browne, writing in 1802 (Civil Law, vol. ii. pp. 208, 210, 212), says “the jurisdiction depends not on locality but on the subject-matter, and the Prize Court hears and determines according to the course of the Admiralty and the law of nations. . . . I strongly suspect that, before the last century, he (the admiral) did exercise a jurisdiction over prize without any special or distinct commission; and certain it is, before Britain had a regular or royal navy, that the admiral . . . was entitled to a very considerable share of prize ships or cargoes taken; besides, no prize commission having issued, as far as appears, in ancient times, how could he have then exercised the authority, unless it was considered as inherent?”
[1 ]4 Inst. 124, 135. See Bl. Com. iii. 68, 107, iv. 267; and Black Book, Rolls Series, vol. i. p. xxxviii. and 281.
[2 ]See Com. Dig., Adm. E. 10, 17; Menetone v. Gibbons (1789), 3 T. R. 267.
[3 ]These resolutions are set out in Zouch on the Admiralty Jurisdiction; and in Edwards, p. 23. See also Prynne’s Animadversions, c. 22, p. 100, and Browne on the Civil Law, vol. ii. p. 78.
[1 ]In Sheppard’s Abridgement (1675) (pt. i. p. 128), 3 Cro. 296, 297, is quoted for the statement that “a suit may be in the Admiralty for building, saving, amending, and victualling of a ship against the ship itself, not against the party, but such as make themselves for their interest parties.” This remarkable clause keeping alive the earlier practice, and enabling a shipwright to sue in Admiralty, provided his suit was against the ship, together with all the other resolutions of 1632, were inserted in the two first editions of Croke’s Reports, but according to Comyns (Dig. Adm. E. 10, F. 3) they were intentionally omitted in the third edition, and a declaration inserted that they were of no authority. See Edwards’ Adm. Jur., p. 25.
[1 ]See Scobell’s Acts and Ordinances (1658), c. 112 (1648). As to the extent of the Admiralty jurisdiction down to the time of the Commonwealth, see Godolphin’s Adm. Jur., 2nd ed. (1685), cap. iv. pp. 37 to 50, and cap. viii. and ix. pp. 91 to 118.
[2 ]Scobell’s Acts and Ordinances, c. 112 (1648); c. 23 (1649); c. 3 (1651).
[3 ]See Ouston v. Hebden (1745), 1 Wils. K. B. 101, at p. 102, and Woodward v. Bonithan (1661), Sir T. Raym. 3.
[4 ]See his vigorous assertion of, and attempt to maintain, the claims of the Admiralty Court, in an argument delivered before a committee, appointed in 1669 to consider a bill for “declaring and ascertaining the jurisdiction of His Majesty’s Court of Admiralty in marine causes.” Wynne’s Life of Sir Leoline Jenkins, vol. i. pp. lxxvi-lxxxv.
[5 ]History of the Common Law, 6th ed., ch. 2, p. 39.
[1 ]The Court of Admiralty has no jurisdiction over any causes of action arising in foreign countries beyond the seas (in partibus transmarinis). Com. Dig., Admiralty, F. 3.
[2 ]Hook v. Moreton (1698), 1 Ld. Raym. 397, at p. 398.
[3 ]4 Coke’s Inst. 134.
[4 ]See per Lindley, L. J., in The Mecca,  P. 95, at p. 106. As to the expression “high seas” (super altum mare), with reference to the jurisdiction of the Court of Admiralty, see 28 Hen. VIII. c. 15; Com. Dig., Admiralty E. (1), (7), (14); Reg. v. Anderson (1868), L. R. 1 C. C. 161; Reg. v. Carr (1882), 10 Q. B. D. 76.
[5 ]Com. iii. 107.
[1 ]Roscoe’s Ad. Prac. (3 ed.) p. 52.
[2 ]The publication of Admiralty Reports began in 1798. See The Neptune (1824), 1 Hagg. 227, at p. 235 (n).
[3 ]Civil Law, vol. ii. pp. 72, 100.
[4 ]In Bridgeman’s Case (1614), Hob. 23 (5th ed., p. 11), the master of a ship borrowed money from a passenger on his own private account, and not for the purposes of the ship, but empawned the vessel at sea, Prohibition issued because the subject-matter of the suit in Admiralty did not appear to be a marine contract. So in Atkinson v. Maling (1788), 2 T. R. 462, on a common sale or mortgage of a ship at sea, trover was held to be the remedy.
[5 ]Reports (1664), p. 500, pl. 56.
[6 ]Greenway and Barker’s case, p. 64.
[1 ]Menetone v. Gibbons (1789), 3 T. R. 267, at p. 270.
[2 ]Ouston v. Hebden (1745), Wils. K. B., pt. I. 101.
[3 ]Page 103.
[4 ]See Roscoe’s Ad. Prac. (3 ed.) p. 51. In the United States of America at the present time the test of Admiralty jurisdiction seems to be as to contracts, subject-matter; as to torts, locality. See Two Centuries Growth of American Law (1901), p. 453; and navigability is substituted for tides as a test of jurisdictional locality. The Genesee Chief (1851), 12 Howard’s Rep. 443.
[5 ]Page 121.
[6 ]It is commonly alleged that according to the law of countries following the Roman law, and according to the ancient practice in Admiralty (Life of Sir L. Jenkins, by Wynne, Letter to the King in Council, vol. ii. pp. 746-7) derived from that law, the building and equipping of ships, and the supplying them with necessaries, creates a lien on the ship, that is, gives the security of the specific ship in favour of the material man, the ground being that the repairs are done, or the goods supplied, on the credit of the ship, so that the ship is liable, in addition to the liability of the owners for the contracts of the supercargo or master. This lien was held to extend to the proceeds of the ship, if sold by the Court in another cause, and the great authority of Lord Mansfield and Lord Tenterden are quoted in support of this view (see per Sir John Nicholl in The Neptune (1834), 3 Hagg. 129, at pp. 136, 137); but, so far as the Roman law is concerned, there seems no authority for the proposition, as the passages usually cited (see Abbott on Shipping, 5th ed. p. 108) do no more than establish that, by the Roman law, a preferential right of payment existed, which, in the case of the repair of any specific article, might be enforced by retaining possession until payment was made, or by securing the arrest of the ship, as being amongst the assets of the debtor, until bail was given for appearance; and, in this country, the doctrine, as affecting the ship, was repudiated by the Courts of common law, in the reign of Charles II., as being in derogation of the common law (see per Lord Stowell in The Zodiac (1825), 1 Hagg. 320, at p. 325); that is, it was held that a material man out of possession had no lien on the ship, though the practice of paying such demands out of the proceeds of the sale of the ship, on which proceeds the lien was alleged to exist, continued. See, further, “Maritime Lien,” Roscoe’s Ad. Proc., p. 68.
[1 ]The Neptune, 3 Knapp, P. C. C. 94.
[2 ]See per Dr. Lushington in The Pacific (1864), Br. & L. 243, at p. 245.
[1 ]As the result of the Report in 1833 of the Commission appointed to inquire into the office and duties of the judges of the Court of Admiralty.