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CHAPTER VII.: OF THE COGNIZANCE OF PRIVATE WRONGS. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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OF THE COGNIZANCE OF PRIVATE WRONGS.
*[*86We now proceed to the cognizance of private wrongs; that is, to consider in which of the vast variety of courts, mentioned in the three preceding chapters, every possible injury that can be offered to a man’s person or property is certain of meeting with redress.
The authority of the several courts of private and special jurisdiction, or of what wrongs such courts have cognizance, was necessarily remarked as those respective tribunals were enumerated, and therefore need not be here again repeated; which will confine our present inquiry to the cognizance of civil injuries in the several courts of public or general jurisdiction. And the order in which I shall pursue this inquiry will be by showing: 1. What actions may be brought, or what injuries remedied, in the ecclesiastical courts. 2. What in the military. 3. What in the maritime. And 4. What in the courts of common law.
And, with regard to the three first of these particulars, I must beg leave not so much to consider what hath at any time been claimed or pretended to belong to their jurisdiction, by the officers and judges of those respective courts; but what the common law allows and permits to be so. For these eccentrical tribunals, (which are principally guided by the rules of the imperial and canon laws,) as they subsist and are *[*87admitted in England, not by any right of their own,(a) but upon bare sufferance and toleration from the municipal laws, must have recourse to the laws of that country wherein they are thus adopted, to be informed how far their jurisdiction extends, or what causes are permitted, and what forbidden, to be discussed or drawn in question before them It matters not therefore what the pandects of Justinian, or the decretals of Gregory, have ordained. They are here of no more intrinsic authority than the laws of Solon and Lycurgus: curious perhaps for their antiquity, respectable for their equity, and frequently of admirable use in illustrating a point of history. Nor is it at all material in what light other nations may consider this matter of jurisdiction. Every nation must and will abide by its own municipal laws; which various accidents conspire to render different in almost every country in Europe. We permit some kinds of suits to be of ecclesiastical cognizance, which other nations have referred entirely to the temporal courts; as concerning wills and successions to intestates’ chattels; and perhaps we may in our turn prohibit them from interfering in some controversies, which on the continent may be looked upon as merely spiritual. In short, the common law of England is the one uniform rule to determine the jurisdiction of our courts: and, if any tribunals whatsoever attempt to exceed the limits so prescribed them, the king’s courts of common law may and do prohibit them; and in some cases punish their judges.(b)
Having premised this general caution, I proceed now to consider,
1. The wrongs or injuries cognizable by the ecclesiastical courts. I mean such as are offered to private persons or individuals;1 which are cognizable by the ecclesiastical court, not for reformation of the offender himself or party injuring, (pro salute animæ, as is the case with immoralities in general, when unconnected with private injuries,) but for the sake of the party injured, to make him a satisfaction and redress for **88]the damage which he has sustained. And these I shall reduce under three general heads; of causes pecuniary, causes matrimonial, and causes testamentary.
1. Pecuniary causes, cognizable in the ecclesiastical courts, are such as arise either from the withholding ecclesiastical dues, or the doing or neglecting some act relating to the church, whereby some damage accrues to the plaintiff; towards obtaining a satisfaction for which he is permitted to institute a suit in the spiritual court.
The principal of these is the subtraction or withholding of tithes from the parson or vicar, whether the former be a clergyman or a lay appropriator.(c) But herein a distinction must be taken: for the ecclesiastical courts have no jurisdiction to try the right of tithes unless between spiritual persons;(d) but, in ordinary cases between spiritual men and lay men, are only to compel the payment of them, when the right is not disputed.(e) By the statute, or rather writ,(f) of circumspecte agatis,(g) it is declared that the court Christian shall not be prohibited from holding plea, “si rector petat versus parochianos oblationes et decimas debitas et consuetas:” so that if any dispute arises whether such tithes be due and accustomed, this cannot be determined in the ecclesiastical court, but before the king’s court of the common law; as such question affects the temporal inheritance, and the determination must bind the real property. But where the right does not come into question, but only the fact whether or no the tithes allowed to be due are really subtracted or withdrawn, this is a transient personal injury, for which the remedy may properly be had in the spiritual court; viz., the recovery of the tithes, or their equivalent. By statute 2 & 3 Edw. VI. c. 13, it is enacted, that if any person shall carry off his predial tithes (viz., of corn, hay, or the like) before the tenth part *[*89is duly set forth, or agreement is made with the proprietor, or shall willingly withdraw his tithes of the same, or shall stop or hinder the proprietor of the tithes, or his deputy, from viewing or carrying them away; such offender shall pay double the value of the tithes, with costs to be recovered before the ecclesiastical judge, according to the king’s ecclesiastical laws. By a former clause of the same statute, the treble value of the tithes, so subtracted or withheld, may be sued for in the temporal courts, which is equivalent to the double value to be sued for in the ecclesiastical. For one may sue for and recover in the ecclesiastical courts the tithes themselves, or a recompense for them, by the antient law; to which the suit for the double value is superadded by the statute. But as no suit lay in the temporal courts for the subtraction of tithes themselves, therefore the statute gave a treble forfeiture, if sued for there; in order to make the course of justice uniform, by giving the same reparation in one court as in the other.(h)2 However, it now seldom happens that tithes are sued for at all in the spiritual court; for if the defendant pleads any custom, modus, composition, or other matter whereby the right of tithing is called in question, this takes it out of the jurisdiction of the ecclesiastical judges: for the law will not suffer the existence of such a right to be decided by the sentence of any single, much less an ecclesiastical, judge; without the verdict of a jury. But a more summary method than either of recovering small tithes under the value of 40s. is given by statute 7 & 8 W. III. c. 6, by complaint to two justices of the peace; and, by another statute of the same year, c. 34, the same remedy is extended to all tithes withheld by Quakers under the value of ten pounds.3
Another pecuniary injury, cognizable in the spiritual courts, is the non-payment of other ecclesiastical dues to the clergy; as pensions, mortuaries, compositions, offerings, and whatsoever falls under the denomination of surplice-fees, for marriages or other ministerial offices of the church: all which injuries are redressed by a decree for their actual *[*90payment. Besides which, all offerings, oblations, and obventions not exceeding the value of 40s. may be recovered in a summary way before two justices of the peace.(i) But care must be taken that these are real and not imaginary dues; for, if they be contrary to the common law, a prohibition will issue out of the temporal courts to stop all suits concerning them. As where a fee was demanded by the minister of the parish for the baptism of a child, which was administered in another place;(j) this, however authorized by the canon, is contrary to common right: for of common right, no fee is due to the minister even for performing such branches of his duty, and it can only be supported by a special custom;(k) but no custom can support the demand of a fee without performing them at all.
For fees also, settled and acknowledged to be due to the officers of the ecclesiastical courts, a suit will lie therein: but not if the right of the fees is at all disputable; for then it must be decided by the common law.(l) It is also said, that if a curate be licensed, and his salary appointed by the bishop, and he be not paid, the curate has a remedy in the ecclesiastical court;(m) but, if he be not licensed, or hath no such salary appointed, or hath made a special agreement with the rector, he must sue for a satisfaction at common law;(n) either by proving such special agreement, or else by leaving it to a jury to give damages upon a quantum meruit, that is, in consideration of what he reasonably deserved in proportion to the service performed.
Under this head of pecuniary injuries may also be reduced the several matters of spoliation, dilapidations, and neglect of repairing the church and things thereunto belonging; for which a satisfaction may be sued for in the ecclesiastical court.
Spoliation is an injury done by one clerk or incumbent to another, in taking the fruits of his benefice without any **91]right thereunto, but under a pretended title. It is remedied by a decree to account for the profits so taken. This injury, when the jus patronatus or right of advowson does not come in debate, is cognizable in the spiritual court: as if a patron first presents A. to a benefice, who is instituted and inducted thereto; and then, upon pretence of a vacancy, the same patron presents B. to the same living, and he also obtains institution and induction. Now, if the fact of the vacancy be disputed, then, that clerk who is kept out of the profits of the living, whichever it be, may sue the other in the spiritual court for spoliation, or taking the profits of his benefice. And it shall there be tried, whether the living were or were not vacant: upon which the validity of the second clerk’s pretensions must depend.(o) But if the right of patronage comes at all into dispute, as if one patron presented A., and another patron presented B., there the ecclesiastical court hath no cognizance, provided the tithes sued for amount to a fourth part of the value of the living, but may be prohibited at the instance of the patron by the king’s writ of indicavit.(p) So also if a clerk, without any colour of title, ejects another from his parsonage, this injury must be redressed in the temporal courts: for it depends upon no question determinable by the spiritual law, (as plurality of benefices or no plurality, vacancy or no vacancy,) but is merely a civil injury.
For dilapidations, which are a kind of ecclesiastical waste, either voluntary, by pulling down; or permissive, by suffering the chancel, personage-house, and other buildings thereunto belonging, to decay; an action also lies, either in the spiritual court by the canon law, or in the courts of common law,(q) and it may be brought by the successor against the predecessor, if living, or, if dead, then against his executors. It is also said to be good cause of deprivation, if the bishop, parson, vicar, or other ecclesiastical person, dilapidates the buildings, or cuts down timber growing on the patrimony of **92]the church, unless for necessary repairs:(r) and that a writ of prohibition will also lie against him in the courts of common law.(s) By statute 13 Eliz. c. 10, if any spiritual person makes over or alienates his goods with intent to defeat his successors of their remedy for dilapidations, the successor shall have such remedy against the alience, in the ecclesiastical court, as if he were the executor of his predecessor. And by statute 14 Eliz. c. 11, all money recovered for dilapidations shall within two years be employed upon the buildings in respect whereof it was recovered, on penalty of forfeiting double the value to the crown.
As to the neglect of reparations of the church, churchyard, and the like, the spiritual court has undoubted cognizance thereof;(t) and a suit may be brought therein for non-payment of a rate made by the church-wardens for that purpose. And these are the principal pecuniary injuries, which are cognizable, or for which suits may be instituted, in ecclesiastical courts.
2. Matrimonial causes, or injuries respecting the rights of marriage, are another, and a much more undisturbed, branch of the ecclesiastical jurisdiction. Though if we consider marriages in the light of mere civil contracts, they do not seem to be properly of spiritual cognizance.(u) But the Romanists having very early converted this contract into a holy sacramental ordinance, the church of course took it under her protection, upon the division of the two jurisdictions. And in the hands of such able politicians, it soon became an engine of great importance to the papal scheme of a universal monarchy over Christendom. The numberless canonical impediments that were invented, and occasionally dispensed with, by the holy see, not only enriched the coffers of the church, but gave it a vast ascendant over princes of all denominations; whose marriages were sanctified or reprobated, their issue legitimated or bastardized, and the succession to their thrones established or rendered precarious, according *[*93to the humour or interest of the reigning pontiff: besides a thousand nice and difficult scruples, with which the clergy of those ages puzzled the understandings, and loaded the consciences of the inferior orders of the laity; and which could only be unravelled and removed by these their spiritual guides. Yet, abstracted from this universal influence, which affords so good a reason for their conduct, one might otherwise be led to wonder that the same authority, which enjoined the strictest celibacy to the priesthood, should think them the proper judges in causes between man and wife. These causes indeed, partly from the nature of the injuries complained of, and partly from the clerical method of treating them,(v) soon became too gross for the modesty of a lay tribunal. And causes matrimonial are now so peculiarly ecclesiastical that the temporal courts will never interfere in controversies of this kind, unless in some particular cases. As if the spiritual court do proceed to call a marriage in question after the death of either of the parties; this the courts of common law will prohibit, because it tends to bastardize and disinherit the issue; who cannot so well defend the marriage, as the parties themselves, when both of them living, might have done.(w)
Of matrimonial causes, one of the first and principal is, 1. Causa jactitationis matrimonii; when one of the parties boasts4 or gives out that he or she is married to the other, whereby a common reputation of their matrimony may ensue. On this ground the party injured may libel the other in the spiritual court; and, unless the defendant undertakes and makes out a proof of the actual marriage, he or she is enjoined perpetual silence upon that head; which is the only remedy the ecclesiastical courts can give for this injury.5 2. Another species of matrimonial causes was, when a party contracted to another brought a suit in the ecclesiastical court to compel a celebration of the marriage in pursuance of such contract; but this branch of causes is now cut off entirely by the act for preventing clandestine marriages, 26 Geo. II. **94]c. 33, which enacts, that for the future no suit shall be had in any ecclesiastical court, to compel a celebration of marriage in facie ecclesiæ, for or because of any contract of matrimony whatsoever. 3. The suit for restitution of conjugal rights is also another species of matrimonial causes: which is brought whenever either the husband or wife is guilty of the injury of subtraction, or lives separate from the other without any sufficient reason; in which case the ecclesiastical jurisdiction will compel them to come together again, if either party be weak enough to desire it, contrary to the inclination of the other. 4. Divorces also, of which, and their several distinctions, we treated at large in a former book,(x) are causes thoroughly matrimonial, and cognizable by the ecclesiastical judge. If it becomes improper, through some supervenient cause arising ex post facto, that the parties should live together any longer; as through intolerable cruelty,6 adultery, a perpetual disease, and the like;7 this unfitness or inability for the marriage state may be looked upon as an injury to the suffering party; and for this the ecclesiastical law administers the remedy of separation, or a divorce a mensa et thoro. But if the cause existed previous to the marriage, and was such a one as rendered the marriage unlawful ab initio, as consanguinity, corporal imbecility, or the like; in this case the law looks upon the marriage to have been always null and void, being contracted in fraudem legis, and decrees not only a separation from bed and board, but a vinculo matrimonii itself. 5. The last species of matrimonial causes is a consequence drawn from one of the species of divorce, that a mensa et thoro; which is the suit for alimony, a term which signifies maintenance: which suit the wife, in case of separation, may have against her husband, if he neglects or refuses to make her an allowance suitable to their station in life. This is an injury to the wife, and the court Christian will redress it by assigning her a competent maintenance, and compelling the husband by ecclesiastical censures to pay it. But no alimony will be assigned in case of a divorce for adultery on her part; for as that amounts to a forfeiture of her **95]dower after his death, it is also a sufficient reason why she should not be partaker of his estate when living.
3. Testamentary causes are the only remaining species belonging to the ecclesiastical jurisdiction;8 which, as they are certainly of a mere temporal nature,(y) may seem at first view a little oddly ranked among matters of a spiritual cognizance. And indeed (as was in some degree observed in a former book,)(z) they were originally cognizable in the king’s courts of common law, viz., the county-courts;(a) and afterwards transferred to the jurisdiction of the church, by the favour of the crown, as a natural consequence of granting to the bishops the administration of intestates’ effects.
This spiritual jurisdiction of testamentary causes is a peculiar constitution of this island; for in almost all other (even in popish) countries all matters testamentary are under the jurisdiction of the civil magistrate. And that this privilege is enjoyed by the clergy in England, not as a matter of ecclesiastical right, but by the special favour and indulgence of the municipal law, and as it should seem by some public act of the great council, is freely acknowledged by Lindewode, the ablest canonist of the fifteenth century. Testamentary causes, he observes, belong to the ecclesiastical courts “de consuetudine Angliæ, et super consensu regio et suorum procerum in talibus ab antiquo concesso.”(b) The same was, about a century before, very openly professed in a canon of archbishop Stratford, viz., that the administration of intestates’ goods was “ab olim” granted to the ordinary, “consensu regio et magnatum regni Angliæ.”(c) The constitutions of cardinal Othobon also testify that this provision “olim a prælatis cum approbatione regis et baronum dicitur emanasse.”(d) And archbishop Parker,(e) in queen Elizabeth’s time, affirms in express words, that originally in matters testamentary “non ullam habebant episcopi authoritatem, præter eam quam a rege acceptam referebant. Jus testamenta probandi non **96]habebant: administrationis potestatem cuique delegare non poterant.”
At what period of time the ecclesiastical jurisdiction of testaments and intestacies began in England, is not ascertained by any antient writer: and Lindewode(f) very fairly confesses, “cujus regis temporibus hoc ordinatum sit, non reperio.” We find it indeed frequently asserted in our common-law books, that it is but of late years that the church hath had the probate of wills.(g) But this must only be understood to mean that it hath not always had this prerogative: for certainly it is of very high antiquity. Lindewode, we have seen, declares that it was “ab antiquo;” Stratford, in the reign of king Edward III., mentions it as “ab olim ordinatum;” and cardinal Othobon, in the 52 Hen. III., speaks of it as an antient tradition. Bracton holds it for clear law, in the same reign of Henry III., that matters testamentary belonged to the spiritual court.(h) And, yet earlier, the disposition of intestates’ goods “per visum ecclesiæ” was one of the articles confirmed to the prelates by king John’s magna carta.(i) Matthew Paris also informs us that king Richard I. ordained in Normandy “quod distributio rerum quæ in testamento relinquuntur auctoritate ecclesiæ fiet.” And even this ordinance of king Richard was only an introduction of the same law into his ducal dominions, which before prevailed in this kingdom; for in the reign of his father Henry II. Glanvil is express, that “si quis aliquid dixerit contra testamentum, placitum illud in curia christianitatis audiri debet et terminari.”(j) And the Scots book, called regiam majestatem, agrees verbatim with Glanvil in this point.(k)
It appears that the foreign clergy were pretty early ambitious of this branch of power; but their attempts to assume **97]it on the continent were effectually curbed by the edict of the emperor Justin,(l) which restrained the insinuation or probate of testaments (as formerly) to the office of the magister census: for which the emperor subjoins this reason: “absurdum et enim clericis est, immo etiam opprobriosum, si peritos se velint ostendere disceptationum esse forensium.” But afterwards by the canon law(m) it was allowed that the bishop might compel by ecclesiastical censures the performance of a bequest to pious uses. And therefore, as that was considered as a cause quæ secundum canones et episcopales leges ad regimen animarum pertinuit, it fell within the jurisdiction of the spiritual courts by the express words of the charter of king William I., which separated those courts from the temporal. And afterwards, when king Henry I. by his coronation-charter directed that the goods of an intestate should be divided for the good of his soul,(n) this made all intestacies immediately spiritual causes, as much as a legacy to pious uses had been before. This therefore, we may probably conjecture, was the era referred to by Stratford and Othobon when the king, by the advice of the prelates and with the consent of his barons invested the church with this privilege. And accordingly in king Stephen’s charter it is provided that the goods of an intestate ecclesiastic shall be distributed pro salute animæ ejus, ecclesiæ consilio;(o) which latter words are equivalent to per visum ecclesiæ in the great charter of king John before mentioned. And the Danes and Swedes (who received the rudiments of Christianity and ecclesiastical discipline from England about the beginning of the twelfth century) have thence also adopted the spiritual cognizance of intestacies, testaments, and legacies.(p)
This jurisdiction, we have seen, is principally exercised with us in the consistory courts of every diocesan *[*98bishop, and in the prerogative court of the metropolitan, originally; and in the arches court and court of delegates by way of appeal. It is divisible into three branches; the probate of wills, the granting of administrations, and the suing for legacies. The two former of which, when no opposition is made, are granted merely ex officio et debito justitiæ, and are then the object of what is called the voluntary, and not the contentious, jurisdiction. But when a caveat is entered against proving the will or granting administration, and a suit thereupon follows to determine either the validity of the testament, or who hath a right to administer; this claim and obstruction by the adverse party are an injury to the party entitled, and as such are remedied by the sentence of the spiritual court, either by establishing the will or granting the administration. Subtraction, the withholding or detaining of legacies, is also still more apparently injurious, by depriving the legatees of that right with which the laws of the land and the will of the deceased have invested them: and therefore, as a consequential part of testamentary jurisdiction, the spiritual court administers redress herein, by compelling the executor to pay them. But in this last case the courts of equity exercise a concurrent jurisdiction with the ecclesiastical courts, as incident to some other species of relief prayed by the complainant; as to compel the executor to account for the testator’s effects, or assent to the legacy, or the like. For, as it is beneath the dignity of the king’s courts to be merely ancillary to other inferior jurisdictions, the cause, when once brought there, receives there also its full determination.9
These are the principal injuries for which the party grieved either must, or may, seek his remedy in the spiritual courts. But before I entirely dismiss this head, it may not be improper to add a short word concerning the method of proceeding in these tribunals, with regard to the redress of injuries.
It must (in the first place) be acknowledged, to the honour of the spiritual courts, that though they continue to this *[*99day to decide many questions which are properly of temporal cognizance, yet justice is in general so ably and impartially administered in those tribunals (especially of the superior kind) and the boundaries of their power are now so well known and established, that no material inconvenience at present arises from this jurisdiction still continuing in the antient channel. And, should an alteration be attempted, great confusion would probably arise, in overturning long-established forms, and new-modelling a course of proceedings that has now prevailed for seven centuries.
The establishment of the civil-law process in all the ecclesiastical courts was indeed a masterpiece of papal discernment, as it made a coalition impracticable between them and the national tribunals, without manifest inconvenience and hazard. And this consideration had undoubtedly its weight in causing this measure to be adopted, though many other causes concurred. The time when the pandects of Justinian were discovered afresh, and rescued from the dust of antiquity, the eagerness with which they were studied by the popish ecclesiastics, and the consequent dissensions between the clergy and the laity of England, have formerly(q) been spoken to at large. I shall only now remark upon those collections, that their being written in the Latin tongue, and referring so much to the will of the prince and his delegated officers of justice, sufficiently recommended them to the court of Rome, exclusive of their intrinsic merit. To keep the laity in the darkest ignorance, and to monopolize the little science, which then existed, entirely among the monkish clergy, were deep-rooted principles of papal policy. And, as the bishops of Rome affected in all points to mimic the imperial grandeur, as the spiritual prerogatives were moulded on the pattern of the temporal, so the canon-law process was formed on the model of the civil law: the prelates embracing with the utmost ardour a method of judicial proceedings which was carried on in a language unknown to the bulk of the people, which banished the intervention of a jury, (that bulwark of **100]Gothic liberty,) which placed an arbitrary power of decision in the breast of a single man.
The proceedings in the ecclesiastical courts are therefore regulated according to the practice of the civil and canon laws; or rather according to a mixture of both, corrected and new-modelled by their own particular usages, and the interposition of the courts of common law. For, if the proceedings in the spiritual court be ever so regularly consonant to the rules of the Roman law, yet if they be manifestly repugnant to the fundamental maxims of the municipal laws, to which upon principles of sound policy the ecclesiastical process ought in every state to conform,(r) (as if they require two witnesses to prove a fact, where one will suffice at common law;) in such cases a prohibition will be awarded against them.(s) But, under these restrictions, their ordinary course of proceeding is: first, by citation, to call the party injuring before them. Then, by libel, libellus, a little book, or by articles drawn out in a formal allegation, to set forth the complainant’s ground of complaint. To this succeeds the defendant’s answer upon oath, when, if he denies or extenuates the charge, they proceed to proofs by witnesses examined, and their depositions taken down in writing, by an officer of the court. If the defendant has any circumstances to offer in his defence, he must also propound them in what is called his defensive allegation, to which he is entitled in his turn to the plaintiff’s answer upon oath, and may from thence proceed to proofs as well as his antagonist. The canonical doctrine of purgation, whereby the parties were obliged to answer upon oath to any matter, however criminal, that might be objected against them, (though long ago overruled in the court of chancery, the genius of the English law having broken through the bondage imposed on it by its clerical chancellors, and asserted the doctrines of judicial as well as civil liberty,) continued to the middle of the last century to be upheld by the spiritual courts; when the legislature was obliged to interpose, to teach them a lesson of similar moderation. By the *[*101statute of 13 Car. II. c. 12, it is enacted that it shall not be lawful for any bishop or ecclesiastical judge to tender or administer, to any person whatsoever, the oath usually called the oath ex officio, or any other oath whereby he may be compelled to confess, accuse, or purge himself of any criminal matter or thing, whereby he may be liable to any censure or punishment. When all the pleadings and proofs are concluded, they are referred to the consideration, not of a jury, but of a single judge; who takes information by hearing advocates on both sides, and thereupon forms his interlocutory decree or definitive sentence at his own discretion: from which there generally lies an appeal, in the several stages mentioned in a former chapter;(t) though if the same be not appealed from in fifteen days, it is final by the statute 25 Hen. VIII. c. 19.
But the point in which these jurisdictions are the most defective, is that of enforcing their sentences when pronounced; for which they have no other process but that of excommunication; which is described(u) to be twofold; the less, and the greater, excommunication. The less is an ecclesiastical censure, excluding the party from the participation of the sacraments; the greater proceeds further, and excludes him not only from these, but also from the company of all Christians. But, if the judge of any spiritual court excommunicates a man for a cause of which he hath not the legal cognizance, the party may have an action against him at common law, and he is also liable to be indicted at the suit of the king.(w)10
Heavy as the penalty of excommunication is, considered in a serious light, there are, notwithstanding, many obstinate or profligate men, who would despise the brutum fulmen of mere ecclesiastical censures, especially when pronounced by a petty surrogate in the country, for railing or contumelious words, for nonpayment of fees, or costs, or for other trivial causes. The common law therefore compassionately steps in to *[*102the aid of the ecclesiastical jurisdiction, and kindly lends a supporting hand to an otherwise tottering authority. Imitating herein the policy of our British ancestors, among whom, according to Cæsar,(x) whoever were interdicted by the Druids from their sacrifices, “in numero impiorum ac sceleratorum habentur: ab iis omnes decedunt, aditum eorum sermonemque defugiunt, ne quid ex contagione incommodi accipiant: neque iis petentibus jus redditur, neque honos ullus communicatur.” And so with us by the common law an excommunicated person is disabled to do any act that is required to be done by one that is probus et legalis homo. He cannot serve upon juries, cannot be a witness in any court, and, which is the worst of all, cannot bring an action, either real or personal, to recover lands or money due to him.(y) Nor is this the whole: for if, within forty days after the sentence has been published in the church, the offender does not submit and abide by the sentence of the spiritual court, the bishop may certify such contempt to the king in chancery. Upon which there issues out a writ to the sheriff of the county, called, from the bishop’s certificates, a significavit; or, from its effects, a writ de excommunicato capiendo: and the sheriff shall thereupon take the offender, and imprison him in the county gaol, till he is reconciled to the church, and such reconciliation certified by the bishop; under which another writ, de excommunicato deliberando, issues out of chancery to deliver and release him.(z) This process seems founded on the charter of separation (so often referred to) of William the Conqueror. “Si aliquis per superbiam elatus ad justitiam episcopalem venire noluerit, vocetur semel, secundo, et tertio: quod si nec ad emendationem venerit, excommuniceter; et, si opus fuerit, ad hoc vindicandum fortitudo et justitia regis sive vicecomitis adhibeatur. And in case of subtraction of tithes, a more summary and expeditious assistance is given by the statutes of 27 Hen. VIII. c. 20, and 32 Hen. VIII. c. 7, which enact, that upon complaint of any contempt or misbehaviour of the ecclesiastical judge by the defendant in any suit for tithes, any privy counsellor, or any**103]two justices of the peace (or, in case of disobedience to a definitive sentence, any two justices of the peace,) may commit the party to prison without bail or mainprize, till he enters into a recognizance with sufficient sureties to give due obedience to the process and sentence of the court. These timely aids, which the common and statute laws have lent to the ecclesiastical jurisdiction, may serve to refute that groundless notion which some are too apt to entertain, that the courts at Westminster hall are at open variance with those at doctors’ commons. It is true that they are sometimes obliged to use a parental authority, in correcting the excesses of these inferior courts, and keeping them within their legal bounds; but, on the other hand, they afford them a parental assistance in repressing the insolence of contumacious delinquents, and rescuing their jurisdiction from that contempt which for want of sufficient compulsive powers would otherwise be sure to attend it.11
II. I am next to consider the injuries cognizable in the court military, or court of chivalry. The jurisdiction of which is declared by statute 13 Ric. II. c. 2 to be this: “that it hath cognizance of contracts touching deeds of arms or of war, out of the realm, and also of things which touch war within the realm, which cannot be determined or discussed by the common law; together with other usages and customs to the same matters appertaining.” So that wherever the common law can give redress, this court hath no jurisdiction: which has thrown it entirely out of use as to the matter of contracts, all such being usually cognizable in the courts of Westminster hall, if not directly, at least by fiction of law: as if a contract be made at Gibraltar, the plaintiff may suppose it made at Northampton; for the locality, or place of making it, is of no consequence with regard to the validity of the contract.
The words “other usages and customs” support the claim of this court, 1. To give relief to such of the nobility and gentry as think themselves aggrieved in matters of honour; and 2. To keep up the distinction of degrees and **104]quality. Whence it follows, that the civil jurisdiction of this court of chivalry is principally in two points; the redressing injuries of honour, and correcting encroachments in matters of coat-armour, precedency, and other distinctions of families.
As a court of honour, it is to give satisfaction to all such as are aggrieved in that point; a point of a nature so nice and delicate, that its wrongs and injuries escape the notice of the common law, and yet are fit to be redressed somewhere. Such, for instance, as calling a man a coward, or giving him the lie; for which, as they are productive of no immediate damage to his person or property, no action will lie in the courts at Westminster; and yet they are such injuries as will prompt every man of spirit to demand some honourable amends, which by the antient law of the land was appointed to be given in the court of chivalry.(a) But modern resolutions have determined, that how much soever such a jurisdiction may be expedient, yet no action for words will at present lie therein.(b) And it hath always been most clearly holden,(c) that as this court cannot meddle with any thing determinable by the common law, it therefore can give no pecuniary satisfaction or damages, inasmuch as the quantity and determination thereof is ever of common-law cognizance. And therefore this court of chivalry can at most only order reparation in point of honour; as, to compel the defendant mendacium sibi ipsi imponere, or to take the lie that he has given upon himself, or to make such other submission as the laws of honour may require.(d) Neither can this court, as to the point of reparation in honour, hold plea of any such word or thing wherein the party is relievable by the courts of common law. As if a man gives another a blow, or calls him thief or murderer; for in both these cases the common law has pointed out his proper remedy by action.
*[*105As to the other point of its civil jurisdiction, the redressing of encroachments and usurpations in matters of hearldry and coat-armour: it is the business of this court, according to Sir Matthew Hale, to adjust the right of armorial ensigns, bearings, crests, supporters, pennons, &c.; and also rights of place or precedence, where the king’s patent or act of parliament (which cannot be overruled by this court) have not already determined it.
The proceedings in this court are by petition, in a summary way; and the trial not by a jury of twelve men, but by witnesses, or by combat.(e) But as it cannot imprison, not being a court of record, and as by the resolutions of the superior courts it is now confined to so narrow and restrained a jurisdiction, it has fallen into contempt and disuse. The marshalling of coat-armour, which was formerly the pride and study of all the best families in the kingdom, is now greatly disregarded; and has fallen into the hands of certain officers and attendants upon this court, called heralds, who consider it only as a matter of lucre, and not of justice: whereby such falsity and confusion have crept into their records, (which ought to be the standing evidence of families, descents, and coat-armour,) that, though formerly some credit has been paid to their testimony, now even their common seal will not be received as evidence in any court of justice in the kingdom.(f) But their original visitation books, compiled when progresses were solemnly and regularly made into every part of the kingdom, to inquire into the state of families, and to register such marriages and descents as were verified to them upon oath, are allowed to be good evidence of pedigrees.(g) And it is much to be wished, that this practice of visitation at certain periods were revived; for the failure of inquisitions post mortem, by the abolition of military tenures, combined with the negligence of the heralds in omitting their usual progresses, has rendered the proof of a modern descent, *[*106for the recovery of an estate or succession to a title of honour, more difficult than that of an antient. This will be indeed remedied for the future, with respect to claims of peerage, by a late standing order(h) of the house of lords; directing the heralds to take exact accounts, and preserve regular entries, of all peers and peeresses of England, and their respective descendants; and that an exact pedigree of each peer and his family shall, on the day of his first admission, be delivered to the house by garter the principal king-at-arms. But the general inconvenience, affecting more private successions, still continues without a remedy.
III. Injuries cognizable by the courts maritime, or admiralty courts, are the next object of our inquiries. These courts have jurisdiction and power to try and determine all maritime causes; or such injuries which, though they are in their nature of common-law cognizance, yet being committed on the high seas, out of the reach of our ordinary courts of justice, are therefore to be remedied in a peculiar court of their own. All admiralty causes must be therefore causes arising wholly upon the sea, and not within the precincts of any country.(i)12 For the statute 13 Ric. II. c. 5 directs that the admiral and his deputy shall not meddle with any thing, but only things done upon the sea; and the statute 15 Ric. II. c. 3 declares that the court of the admiral hath no manner of cognizance of any contract, or of any other thing, done within the body of any county either by land or water; nor of any wreck of the sea: for that must be cast on land before it becomes a wreck.(j) But it is otherwise of things flotsam, jetsam, and ligan; for over them the admiral hath jurisdiction, as they are in and upon the sea.(k) If part of any contract, or other cause of action, doth arise upon the sea, and part upon the land, the common law excludes the admiralty court from its jurisdiction; for, part belonging properly to one cognizance and part to another, the common or general law takes place of the particular.(l) **107]Therefore, though pure maritime acquisitions, which are earned and become due on the high seas, as seamen’s wages, are one proper object of the admiralty jurisdiction, even though the contract for them be made upon land;(m) yet, in general, if there be a contract made in England and to be executed upon the seas, as a charter-party or covenant that a ship shall sail to Jamaica, or shall be in such a latitude by such a day; or a contract made upon the sea to be performed in England, as a bond made on shipboard to pay money in London, or the like; these kinds of mixed contracts belong not to the admiralty jurisdiction, but to the courts of common law.(n) And indeed it hath been further holden, that the admiralty court cannot hold plea of any contract under seal.(o)13
And also, as the courts of common law have obtained a concurrent jurisdiction with the court of chivalry with regard to foreign contracts, by supposing them made in England; so 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 courts of admiralty to those of Westminster hall.(p) This the civilians exclaim against loudly, as inequitable and absurd; and Sir Thomas Ridley(q) hath very gravely proved it to be impossible for the ship in which such cause of action arises to be really at the royal exchange in Cornhill. But our lawyers justify this fiction, by alleging (as before) that the locality of such contracts is not at all essential to the merits of them; and that learned civilian himself seems to have forgotten how much such fictions are adopted and encouraged in the Roman law: that a son killed in battle is supposed to live forever for the benefit of his parents;(r) and that, by the fiction of postliminium and the lex Cornelia, captives, when freed from bondage, were held to have never been prisoners,(s) and such as died in captivity were supposed to have died in their own country.(t)
*[*108Where the admiral’s court hath no original jurisdiction of the cause, though there should arise in it a question that is proper for the cognizance of that court, yet that doth not alter nor take away the exclusive jurisdiction of the common law.(u) And so, vice versa, if it hath jurisdiction of the original, it hath also jurisdiction of all consequential questions, though properly determinable at common law.(v) Wherefore, among other reasons, a suit for beaconage of a beacon standing on a rock in the sea may be brought in the court of admiralty, the admiral having an original jurisdiction over beacons.(w) In case of prizes also in time of war, between our own nation and another, or between two other nations, which are taken at sea, and brought into our ports the courts of admiralty have an undisturbed and exclusive jurisdiction to determine the same according to the law of nations.(x)14
The proceedings of the courts of admiralty bear much resemblance to those of the civil law, but are not entirely founded thereon; and they likewise adopt and make use of other laws, as occasion requires; such as the Rhodian laws and the laws of Oleron.(y) For the law of England, as has frequently been observed, doth not acknowledge or pay any deference to the civil law, considered as such; but merely permits its use in such cases where it judged its determinations equitable, and therefore blends it, in the present instance, with other marine laws: the whole being corrected, altered, and amended by acts of parliament and common usage; so that out of this composition a body of jurisprudence is extracted, which owes its authority only to its reception here by consent of the crown and people. The first process in these courts is frequently by arrest of the defendant’s person;(z) and they also take recognizances or stipulations of certain fidejussors in the nature of bail,(a) and in case of default may *[*109imprison both them and their principal.(b) They may also fine and imprison for a contempt in the face of the court.(c) And all this is supported by immemorial usage, grounded on the necessity of supporting a jurisdiction so extensive;(d) though opposite to the usual doctrines of the common law: these being no courts of record, because in general their process is much conformed to that of the civil law.(e)
IV. I am next to consider such injuries as are cognizable by the courts of the common law. And herein I shall for the present only remark, that all possible injuries whatsoever that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are, for that very reason, within the cognizance of the common-law courts of justice. For it is a settled and invariable principle in the laws of England, that every right when withheld must have a remedy, and every injury its proper redress. The definition and explication of these numerous injuries, and their respective legal remedies, will employ our attention for many subsequent chapters. But before we conclude the present, I shall just mention two species of injuries, which will properly fall now within our immediate consideration: and which are, either when justice is delayed by an inferior court which has proper cognizance of the cause; or, when such inferior court takes upon itself to examine a cause and decide the merits without a legal authority.
1. The first of these injuries, refusal or neglect of justice, is remedied either by writ of procedendo, or of mandamus. A writ of procedendo ad judicium issues out of the court of chancery, where judges of any subordinate court do delay the parties; for that they will not give judgment either on the one side or the other, when they ought so to do. In this case a writ of procedendo shall be awarded, commanding them in the king’s name to proceed to judgment; but without specifying any particular judgment, for that (if erroneous) may *[*110be set aside in the course of appeal, or by writ of error or false judgment: and upon further neglect or refusal, the judges of the inferior court may be punished for their contempt by writ of attachment returnable in the king’s bench or common pleas.(f)
A writ of mandamus is, in general, a command issuing in the king’s name from the court of king’s bench, and directed to any person, corporation, or inferior court of judicature within the king’s dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king’s bench has previously determined, or at least supposes, to be consonant to right and justice. It is a high prerogative writ, of a most extensively remedial nature; and may be issued in some cases where the injured party has also another more tedious method of redress, as in the case of admission or restitution of an office;15 but it issues in all cases where the party hath a right to have any thing done, and hath no other specific means of compelling its performance. A mandamus therefore lies to compel the admission or restoration of the party applying to any office or franchise of a public nature, whether spiritual or temporal; to academical degrees; to the use of a meeting-house, &c.: it lies for the production, inspection, or delivery of public books and papers; for the surrender of the regalia of a corporation; to oblige bodies corporate to affix their common seal; to compel the holding of a court; and for an infinite number of other purposes, which it is impossible to recite minutely. But at present we are more particular to remark, that it issues to the judges of any inferior court, commanding them to do justice according to the powers of their office, whenever the same is delayed. For it is the peculiar business of the court of king’s bench to superintend all inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers with which the crown or legislature have invested them: and this, not only by restraining their excesses, but also by quickening **111]their negligence, and obviating their denial of justice. A mandamus may therefore be had to the courts of the city of London, to enter up judgment;(g) to the spiritual courts to grant an administration, to swear a church-warden, and the like. This writ is grounded on a suggestion, by the oath of the party injured, of his own right, and the denial of justice below: whereupon, in order more fully to satisfy the court that there is a probable ground for such interposition, a rule is made, (except in some general cases where the probable ground is manifest,) directing the party complained of to show cause why a writ of mandamus should not issue: and, if he shows no sufficient cause, the writ itself is issued, at first in the alternative, either to do thus, or signify some reason to the contrary; to which a return, or answer, must be made at a certain day. And, if the inferior judge, or other person to whom the writ is directed, returns or signifies an insufficient reason, then there issues in the second place a peremptory mandamus, to do the thing absolutely; to which no other return will be admitted, but a certificate of perfect obedience and due execution of the writ. If the inferior judge or other person makes no return, or fails in his respect and obedience, he is punishable for his contempt by attachment. But if he, at the first, returns a sufficient cause, although it should be false in fact, the court of king’s bench will not try the truth of the fact upon affidavits; but will for the present believe him, and proceed no further on the mandamus. But then the party injured may have an action against him for his false return, and (if found to be false by the jury) shall recover damages equivalent to the injury sustained; together with a peremptory mandamus to the defendant to do his duty16 Thus much for the injury of neglect or refusal of justice.
2. The other injury, which is that of encroachment of jurisdiction, or calling one coram non judice, to answer in a court that has no legal cognizance of the cause, is also a grievance for which the common law has provided a remedy by the writ of prohibition.
*[*112A prohibition is a writ issuing properly only out of the court of king’s bench, being the king’s prerogative writ; but, for the furtherance of justice, it may now also be had in some cases out of the court of chancery,(h) common pleas,(i) or exchequer;(k) directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court. This writ may issue either to inferior courts of common law; as, to the courts of the counties palatine or principality of Wales, if they hold plea of land or other matters not lying within their respective franchises;(l) to the county-courts or courts-baron, where they attempt to hold plea of any matter of the value of forty shillings:(m) or it may be directed to the courts Christian, the university courts, the court of chivalry, or the court of admiralty, where they concern themselves with any matter not within their jurisdiction; as if the first should attempt to try the validity of a custom pleaded, or the latter a contract made or to be executed within this kingdom. Or if, in handling of matters clearly within their cognizance, they transgress the bounds prescribed to them by the laws of England; as where they require two witnesses to prove the payment of a legacy, a release of tithes,(n) or the like; in such cases also a prohibition will be awarded. For, as the fact of signing a release, or of actual payment, is not properly a spiritual question, but only allowed to be decided in those courts because incident or accessory to some original question clearly within their jurisdiction; it ought therefore, where the two laws differ, to be decided not according to the spiritual, but the temporal, law; else the same question might be determined different ways, according to the court in which the suit is depending: an impropriety which no wise government can or ought to endure, *[*113and which is therefore a ground of prohibition. And if either the judge or the party shall proceed after such prohibition, an attachment may be had against them, to punish them for the contempt, at the discretion of the court that awarded it;(o) and an action will lie against them, to repair the party injured in damages.
So long as the idea continued among the clergy, that the ecclesiastical state was wholly independent of the civil, great struggles were constantly maintained between the temporal courts and the spiritual, concerning the writ of prohibition and the proper object of it; even from the time of the constitutions of Clarendon, made in opposition to the claims of archbishop Becket in 10 Hen. II., to the exhibition of certain articles of complaint to the king by archbishop Bancroft in 3 Jac. I., on behalf of the ecclesiastical courts: from which, and from the answers to them signed by all the judges of Westminster hall,(p) much may be collected concerning the reasons of granting and methods of proceeding upon prohibitions. A short summary of the latter is as follows: The party aggrieved in the court below applies to the superior court, setting forth in a suggestion upon record the nature and cause of his complaint, in being drawn ad aliud examen, by a jurisdiction or manner of process disallowed by the laws of the kingdom; upon which, if the matter alleged appears to the court to be sufficient, the writ of prohibition immediately issues; commanding the judge not to hold, and the party not to prosecute, the plea.17 But sometimes the point may be too nice and doubtful to be decided merely upon a motion; and then, for the more solemn determination of the question, the party applying for the prohibition is directed by the court to declare a prohibition; that is, to prosecute an action, by filing a declaration, against the other, upon a supposition or fiction (which is not traversable)(q) that he has proceeded in the suit below, notwithstanding the writ of prohibition. And if, upon demurrer and argument, the court shall finally be of opinion that the matter suggested is a good and sufficient ground of **114]prohibition in point of law, then judgment with nominal damages shall be given for the party complaining, and the defendant, and also the inferior court, shall be prohibited from proceeding any further. On the other hand, if the superior court shall think it no competent ground for restraining the inferior jurisdiction, then judgment shall be given against him who applied for the prohibition in the court above, and a writ of consultation shall be awarded; so called, because, upon deliberation and consultation had, the judges find the prohibition to be ill founded, and therefore by this writ they return the cause to its original jurisdiction, to be there determined, in the inferior court. And, even in ordinary cases, the writ of prohibition is not absolutely final and conclusive. For though the ground be a proper one in point of law, for granting the prohibition, yet if the fact that gave rise to it be afterwards falsified, the cause shall be remanded to the prior jurisdiction. If, for instance, a custom be pleaded in the spiritual court; a prohibition ought to go, because that court has no authority to try it: but, if the fact of such a custom be brought to a competent trial, and be there found false, a writ of consultation will be granted. For this purpose the party prohibited may appear to the prohibition, and take a declaration, (which must always pursue the suggestion,) and so plead to issue upon it; denying the contempt, and traversing the custom upon which the prohibition was grounded; and if that issue be found for the defendant, he shall then have a writ of consultation. The writ of consultation may also be, and is frequently, granted by the court without any action brought; when, after a prohibition issued, upon more mature consideration the court are of opinion that the matter suggested is not a good and sufficient ground to stop the proceedings below. Thus careful has the law been, in compelling the inferior courts to do ample and speedy justice; in preventing them from transgressing their due bounds; and in allowing them the undisturbed cognizance of such causes as by right, founded on the usage of the kingdom or act of parliament, do properly belong to their jurisdiction.18
[(a) ] See book i. introd. 1.
[(b) ] Hal. Hist. C. L. c. 2.
[1 ] See, in general, Bac. Abr. tit. Courts Ecclesiastical, D. and tit. Slander; Com. Dig. Prohibition; where see G. when the ecclesiastical court has jurisdiction and when not. The ecclesiastical court has no jurisdiction over trusts; and therefore, where a party sued as a trustee was arrested on a writ de contumace capiendo, the court of King’s Bench discharged him out of custody. 1 B. & C. 655.
Suits for defamation may be added to the three heads above considered. As to these in general, see Burn, Eccl. L. Defamation. Com. Dig. Prohibition, G. 14. Bac. Abr. Slander, T. U. Stark on Slander, 32, 464. Words imputing an offence merely spiritual are not in themselves actionable at law, unless followed by special damage, and the party slandered can only institute a suit in the spiritual court; and though the law discourages suits of this kind, yet redress for the insult and injury is not denied. 2 Phil. Ec. Cases, 106. Words which impute an offence merely cognizable in a spiritual court may be punished in that court, as calling a person heretic, adulterer, fornicator, whore, &c.; but if the words are coupled with others for which an action at law would lie, as calling a woman a whore and a thief, the ecclesiastical court has no jurisdiction, and a prohibition lies. 2 Roll. Abr. 297. 1 Sid. 404. 3 Mod. 74. 1 Hagg. Rep. 463, in notes. So a suit cannot be instituted in the spiritual court for a written libel, because any slander of a person reduced into writing, and which can be the subject of any proceeding, is actionable or indictable. Comb. 71. Bac. Abr. Courts Ecclesiastical, D. The power of the ecclesiastical court is confined to the infliction of perance pro salute animæ and awarding costs and does not extend to the awarding damages to the injured party. 4 Co. 20. 2 Inst. 192—Chitty.
[(c) ] Stat. 32 Hen. VIII. c. 7.
[(d) ] 2 Roll. Abr. 309, 310. Bro. Abr. c. Jurisdiction, 85.
[(e) ] 2 Inst. 364, 489, 490.
[(f) ] See Barrington, 123. 3 Pryn. Rec. 336.
[(g) ] 13 Edw. 1. st. 4, or rather 9 Edw. II.
[(h) ] 2 Inst. 250.
[2 ] This statute enacts that every person shall justly divide, set out, yield, and pay all manner of predial tithes in such manner as they have been of right yielded and paid within forty years, or of right or custom ought to have been paid, before the making of that act, under the forfeiture of treble value of the tithes so carried away; and in an action upon this statute, in which the declaration stated that the tithes were within forty years before the statute yielded and payable, and yielded and paid, it was held that evidence that the land had been, as far as any witness knew, in pasture, and that it was never known to pay in predial tithe, was not sufficient to defeat the action. The same action might also be supported to recover tithes of lands enclosed out of wastes, which never paid tithes before. Mitchell vs. Walker, 5 T. R. 260.—Christian.
[3 ] The 53 Geo. III. c. 127 extends the jurisdiction of the two justices to tithes, oblations, and compositions, of the value of 10l.; and in respect of tithes and church-rates, due from Quakers, to 50l., see statute and proceedings, Burn, J., Tithes. The 54 Geo. III. c. 68 extends the same provisions to Ireland.—Chitty.
It is hardly necessary to observe that the commutation of tithes, under the provisions of the statute 6 & 7 W. IV. c. 71 and numerous subsequent statutes, will eventually put an end to all suits for the subtraction of tithes.—Stewart.
[(i) ] Stat. 7 & 8 W. III. c. 6.
[(j) ] Salk. 332.
[(k) ] Ibid. 334. Lord Raym. 450, 1558. Fitz. 50.
[(l) ] 1 Ventr. 165.
[(m) ] 1 Burn, Eccl. Law, 438.
[(n) ] 1 Freem. 70.
[(o) ] F. N. B. 36.
[(p) ]Circumspecte agatis; 13 Edw. I. st. 4, Artic. cleri. 9 Edw. II. c. 2. F. N. B. 45.
[(q) ] Cart. 224. 3 Lev. 268.
[(r) ] 1 Roll. Rep. 86. 11 Rep. 98. Godb. 259.
[(s) ] 3 Bulstr. 138. 1 Roll. Rep. 335.
[(t) ]Circumspecte agatis. 5 Rep. 66.
[(u) ] Warb. Alliance, 173.
[(v) ] Some of the impurest books that are extant in any language are those written by the popish clergy on the subjects of matrimony and divorce.
[(w) ] Inst. 614.
[4 ] But the boasting must be malicious; for where lord Hawke had permitted the party to assume herself to be lady Hawke in his presence and had introduced and acknowledged her to be clothed with that character, the court dismissed the suit. Lord Hawke vs. Corri, 2 Dr. Hagg. 220.—Chitty.
[5 ] It is not enough for the maintenance of this suit that one party falsely “boasts or gives out that he or she is married to the other:” the boasting must be malicious as well as false. In the case of Lord Hawke vs. Corri, the learned judge, in stating the defences which may be made to such a suit, says, “A third defence of more rare occurrence is that though no marriage has passed, yet the pretension was fully authorized by the complainant; and therefore, though the representation is false, yet it is not malicious, and cannot be complained of as such by the party who has denounced it.” In that case, such a defence having been fully made out, the court dismissed the suit. 2 Haggard’s Rep. 280—Coleridge.
[(x) ] Book 1. ch. 15.
[6 ] We have seen in the first book, pages 440, 441, that it is stated that a divorce a mensa et thoro, when marriage is just and lawful ab initio, is only allowed, for some supervenient cause, when it has become improper or impossible for the parties to live together, and that intolerable ill temper was there considered to be a sufficient cause,—a position which, it was submitted by the editor, was not tenable. Upon this interesting subject the reader is referred to the eloquent decisions of Sir William Scott, from which it will appear that a husband or a wife may sustain a suit for a divorce on the ground of cruelty, even in a single instance, when it really endangers life, limb, or health, and that even words menacing such danger are sufficient ground; but that mere insult, irritation, coldness, unkindness, ill temper, on even desertion, is not alone a sufficient ground for a divorce. Evans vs. Evans, 1 Hagg. Rep. 36, 364, 409, 458. 2 id. 154, 158. 2 Phil. Ec. C. 132.—Chitty.
[7 ] It has been determined by the court of delegates that the public infamy of the husband, arising from a judicial conviction of an attempt to commit an unnatural crime, is a sufficient cause for the ecclesiastical courts to decree a separation a mensa et thoro. Feb. 1794.—Christian.
[8 ] Com. Dig. Prohibition, G. 16. Although the ecclesiastical courts have by length of time acquired the original jurisdiction in rebus testamentariis, courts of equity have never theless obtained a concurrent jurisdiction with them in determinations upon personal bequests, as relief in those cases is generally dependent upon a discovery and an account of assets. And an executor being considered a trustee for the several legatees named in the testament, the execution of trusts is never refused by courts of equity. 1 P. Wms. 544, 575. These courts, indeed, in some other instances which frequently occur upon the present subject, exercise a jurisdiction in exclusion of the ecclesiastical, inasmuch as the relief given by the former is more efficient than that administered by the latter. One of these cases happens when a husband endeavours to obtain payment of his wife’s legacy: equity will oblige him to make a proper settlement upon her, before a decree will be made for payment of the money to him; but this the ecclesiastical court cannot do: therefore, if the baron libel in that court for his wife’s legacy, the court of chancery will grant an injunction to stay proceedings in it, he not having made any settlement or provision for her. 1 Dick. Rep. 373. Also 1 Atk. 491, 516. 2 Atk. 420. Prec. Cha. 548, S. P. Another of those instances occurs when legacies are given to infants; for equity will protect their interests, and give proper directions for securing and improving the fund for their benefit, which could not be effected in the ecclesiastical court. 1 Vern. 26. It has been already observed that the probate of wills belongs exclusively to the ecclesiastical court, except in the instance above adduced; whence it follows that, if a probate has been granted of a will obtained by fraud, the ecclesiastical court alone can revoke it, (2 Vern. 8. 1 P. Wms. 388;) and a person cannot be convicted of forging a will of a deceased person of personal property until the probate thereof has been sealed by the ecclesiastical court. 3 T. R. 127.
Although a court of equity cannot set aside a will of personal estate the probate of which has been obtained from the spiritual court, yet the court will interfere when a probate has been granted by the fraud of the person obtaining it, and either convert the wrong-doer into a trustee, in respect of such probate, or oblige him to consent to a repeal or revocation of it in the court from which it was granted. 1 Ves. 119, 284, 287. A court of equity will also interfere and prevent a person from taking an undue advantage by contesting the validity of a probate, when such person has acted under it and admitted facts material to its validity. 1 Atk. 628.
The jurisdiction of the ecclesiastical courts is confined to testaments merely, or, in other words, to dispositions of personalty: if, therefore, real estate be the subject of a devise to be sold for payment of debts or portions, these courts cannot hold plea in relation to such bequests, but the proper forum is a court of equity. Dyer, 151, b. Palm. 120, S. P. But the ecclesiastical courts’ jurisdiction may extend to affect interests arising out of real property, when those interests are less than freehold, as in devises of terms for years, or of rents payable out of them: for such dispositions relate to chattels real only. 2 Keb. 8. Cro. J. 279. Buls. 153. If a legatee alter the nature of his demand, and change it into a debt or duty, as by accepting a bond from the executor for payment of the legacy, it seems that the effect of the transaction will be either to deprive the ecclesiastical court of its jurisdiction, or to give an option to the person entitled, to sue in that or in a temporal court, at his discretion. 2 Roll. R. 160. Yelv. 39. 8 Mod. 327.
Cases have occurred in which courts of common law have assumed jurisdiction of testamentary matters, and permitted actions to be instituted for the recovery of legacies, upon proof of an express assumpsit or undertaking by the executor to pay them. Sid. 45. 11 Mod. 91. Ventr. 120. 2 Lev. 3. Cowp. 284. But it seems to be the opinion of modern judges that this jurisdiction extends to cases of specific legacies only; for when the executor assents to those bequests, the legal interests vest in the legatees, which enable them to enforce their rights at law. 3 East, R. 120. It seems to be the better opinion that when the legacy is not specific, but merely a gift out of the general assets, and particularly when a married woman is the legatee, a court of common law will not entertain jurisdiction to compel payment of such a legacy, upon the ground that a court of common law is, from its rules, incompetent to administer that complete justice to the parties which courts of equity have the power, and are in the constant habit, of doing. 5 Term Rep. K. B. 690. 7 T. R. 667. 2 P. Wms. 641. Peake’s C. N. P. 73. There is one case in the books where the declaration states that, in consideration of a forbearance by the plaintiff to sue, the executor promised to pay the legacy, and the court held that the action might be maintained; but the circumstance of that action being brought on a promise, in consideration of forbearance, shows that it was understood that the bare possession of assets was not alone sufficient. 5 T. R. 693. 2 Lev. 3. But it has been suggested that it should seem that upon an express promise and admission of assets an executor may be sued. 2 Saund. by Patteson, 137, note a.—Chitty.
[(y) ] Warburt. Alliance, 173.
[(z) ] Book ii. ch. 32.
[(a) ] Hickes’s Dissert. Epistolar. I. 8, 58.
[(b) ]Provincial, l. 3, t. 13, fol. 176.
[(c) ] Ibid. l. 3, t. 38, fol. 263.
[(d) ]Cap. 23.
[(e) ] See 9. Rep. 38.
[(f) ] Fol. 263.
[(g) ] Fitz. Abr. tit. testament, pl. 4. 2 Roll. Abr. 217. 9 Rep. 87. Vaugh. 207.
[(h) ]L. 5, de exceptionibus, c. 10.
[(i) ]Cap. 27, edit Oxon.
[(j) ]L. 7, c. 8.
[(k) ]L. 2, c. 38.
[(l) ]Cod. 1, 3, 41.
[(m) ]Decretal. 3, 26, 17. Gilb. Rep. 204, 205.
[(n) ]Si quis baronum seu hominum meorum,—pecuniam suam non dederit vel dare disposuerit, uxor sua, sive liberi, aut parentes et legitimi homines ejus, eam pro anime ejus dividant, sicut eis melius visum fuerit. Text. Roffens. c. 34. p. 51.
[(o) ] Lord Lyttlet Hen. II. vol. i. 536. Hearne ad Gul. Neubr. 711.
[(p) ] Stiernhook, de jure Sucon. l. 3, c. 3.
[9 ] No action at law can be maintained against an executor for a legacy where there is no further proof of his assent to the legacy than what the law can infer from an acknowledgment by him of assets sufficient to pay it. Convenience is much in favour of this rule, because, if the person who was legally entitled could recover at law, he would do so absolutely and for his own use; and though the legacy might have been intended for the benefit of another, a court of law would have no means of compelling the legatee so to apply it, as in the case of a legacy to the wife, which would become the husband’s absolutely; and the court of law could not oblige him, as a court of equity now will, to make provision for his wife out of it. Deeks vs. Strutt. 5 T. R. 690. But where the executor admits assets and expressly promises to pay in the case of a pecuniary legacy, or where the legacy being specific he assents to it, such promise and assent vest the property in the legatee, and he may maintain an action against the executor. Atkins vs. Hill, Cowp. 284. Lord Say and Sele vs. Guy, 3 E. R. 120.
It is omitted to be observed in the text that causes of defamation are within the jurisdiction of the ecclesiastical court. Suits of this kind are entertained for the use of words which, not importing or producing any temporal danger or loss, are not actionable in the courts of common law; and the use of them is punished by penance with or without costs, at the discretion of the court.—Coleridge.
[(q) ] Book i. introd. 1.
[(r) ] Warb. Alliance, 179.
[(s) ] 2 Roll. Abr. 300, 302.
[(t) ] Ch. 5.
[(u) ] Co. Litt. 133.
[(w) ] 2 Inst. 623.
[10 ] The recent act, 53 Geo. III. c. 127, prohibits excommunication and the writ de excommunicato capiendo as a mode of enforcing performance or obedience to ecclesiastical orders and decrees; and, instead of the sentence of excommunication in those cases, the court is to pronounce the defendant contumacious, and the ecclesiastical judge is to send his significavit in the prescribed form to the chancery, from which a writ de contumace capiendo is to issue in the prescribed form, and which is to have the same force as the ancient writ. There is a similar act as to Ireland, 54 Geo. III. c. 68. In other cases not of disobedience to the orders and decrees of the court, there may be excommunication, and a writ de excommunicato capiendo, as heretofore. In the proceedings under this statute, it must clearly appear that the ecclesiastical court had jurisdiction, and that the form of proceedings has been duly observed. 5 Bar. & Ald. 791. 3 Dowl. & R. 570, ante, 87. note 1.—Chitty.
[(x) ]De bello Gall. l. 6.
[(y) ] Litt. 201.
[(z) ] F. N. B. 62.
[11 ] In the ecclesiastical courts the maxim is that nullum tempus occurrit ecclesiæ, or that there is no limitation to a prosecution for a spiritual offence; and it was thought a great grievance that the peace of families might be disturbed by a prosecution for a crime of incontinence committed many years before. It was therefore enacted by the 27 Geo. III. c. 44 that no prosecution should be commenced in the spiritual courts for defamation after six months, or for fornication or incontinence, or for striking or brawling in a church or churchyard, after eight months; and that in no case parties who had intermarried should be prosecuted for their previous fornication.—Christian.
[(a) ] Year-book, 37. Hen. VI. 21. Selden of Duels, c. 10. Hal. Hist. C. L. 37.
[(b) ] Salk 533. 7 Mod. 125. 2 Hawk. P. C. 11.
[(c) ] Hal. Hist. C. L. 37.
[(d) ] 1 Roll. Abr. 128.
[(e) ] Co. Litt. 261.
[(f) ] 2 Roll. Abr. 686. 2 Jon. 224.
[(g) ] Comb. 63.
[(h) ] 11 May, 1767.
[(i) ] Co. Litt. 260. Hob. 79.
[12 ] See much learning respecting the jurisdiction of the court of admiralty in the case of Le Caux vs. Eden, Doug. 572.—Christian.
[(j) ] See book i. ch. 8.
[(k) ] 5 Rep. 106.
[(l) ] Co. Litt. 261.
[(m) ] 1 Ventr. 146.
[(n) ] Hob. 12. Hal. Hist. C. L. 35.
[(o) ] Hob. 212.
[13 ] The case referred to in the text is that of Palmer vs. Pope, Hobart’s Rep. p. 79 and p. 212; but it does not seem to warrant the position. The libel in the admiralty court there stated an agreement, made super altum mare, that Pope should carry certain sugars and that the agreement was after put in writing, in the port of Gado, on the coast of Barbary; a breach was then assigned. The court resolved “that a prohibition lay, because the original contract, though it were made at sea, yet was changed when it was put in writing and sealed, which, being at land, changed the jurisdiction; but if it had been a writing only without seal, a mere remembrance of the agreement, it had made no change.” By this is to be understood that the sealed contract destroyed the original parol contract, which a mere writing would not have done; and as that new contract was made on land, though out of the king’s dominions, still it was not within the admiralty jurisdiction. It cannot, therefore, be inferred from this case that the admiralty court cannot hold plea of any contract under seal. The same point, however, is undoubtedly laid down in Opy vs. Addison and others, 12 Mod. 38. S. C. Salk. 31. Day vs. Searle, 2 Strange, 968, (which, however, was decided only on the authority of the preceding case,) and Howe vs. Nappier, 4 Burr. 1950. Perhaps, however, upon an examination of the authorities, it would appear that there is nothing to warrant the position that the admiralty court has not jurisdiction where the specialty contract is made on the sea and to be performed on the sea, or where it relates to a subject-matter over which the court has jurisdiction. The 4 Inst. p. 135, which has been cited to support this, does not go so far; and the case of Menetone vs. Gibbons, 3 T. R. 267, virtually overruled the cases on which lord Mansfield relied in Howe vs. Nappier, because there it was determined that the admiralty court had jurisdiction respecting an hypothecation bond, though executed on land and under seal, because it had jurisdiction over the subject-matter of the hypothecation of ships, and it was expressly negatived that the circumstance of the instrument being under seal could deprive them of their jurisdiction. Now, the cases alluded to were suits for mariners’ wages, and it was admitted that the admiralty had jurisdiction over the subject-matter; but it was said that the special agreement and the seal took it away.
It will be observed that the reasoning in this note on the case of Palmer vs. Pope proceeds further than the text, and assumes that in the case of contracts it is not necessary to bring the matter within the precincts of a county in order to oust the admiralty of jurisdiction. In that case it is expressly laid down that the jurisdiction is limited to the seas only, that the libel must allege the matter to have arisen super altum mare, and that if it arise upon any continent, port, or haven, in the world, of the king’s dominions, the statutes take away the jurisdiction. This must be qualified, it is conceived, by the principle laid down in Menetone vs. Gibbons. See H. C. L. c. 2.—Coleridge.
And now, by stat. 3 & 4 Vict. c. 65, s. 6, the court may in certain cases adjudicate on claims for services and repairs, although not on the high seas: and by 9 & 10 Vict. c. 99 its jurisdiction in matters of wreck and salvage is regulated.—Stewart.
All civil injuries cognizable in the court of admiralty in England are in like manner cognizable in the district courts of the United States, which are courts of admiralty quoad hoc. Captures within the waters of the United States or within a marine league of the coasts, by whomsoever made, are likewise cognizable therein—saving to suitors, in all cases, the right of a common-law remedy where the common law is competent to give it. Act Sept. 24, 1789, 1 Story’s Laws, 56. Act of June 5, 1794, 1 Story’s Laws, 353. Seamen’s wages are there also recoverable; and a summary method of compelling payment, by application to the district judge, or, in case of his residence being more than three miles from the place, or of his absence, to any judge or justice of the peace, is given by the act for the government of seamen in the merchants’ service; saving to them the right of maintaining an action at common law. Act of July 20, 1790, 1 Story’s Laws, 105.
It was at first questioned whether the district courts had jurisdiction under the act of Congress as prize courts, in virtue of the clause vesting in them all civil causes of admiralty jurisdiction. The Supreme Court of the United States settled this question by deciding that the district courts of the United States possessed all the powers of courts of admiralty, whether considered as instance or as prize courts. Glass vs. The Sloop Betsy, 3 Dallas, 6.
In regard to the powers of the district courts as instance courts, it seems to be settled that the federal courts, as courts of admiralty, can only exercise such criminal jurisdiction as is expressly conferred upon them by acts of Congress. United States vs. Hudson & Goodwin, 7 Cranch, 32. United States vs. Coolidge, 1 Wheaton, 415. The Judiciary Act of 1789 provides that the trial of all issues in fact in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury.
In regard to the extent of the powers of the district courts in civil causes of admiralty jurisdiction, it was held, in De Lovio vs. [Editor: illegible character]oit and others, 2 Gallison, 398, that the admiralty has jurisdiction over all maritime contracts, wheresoever the same may be made or executed, and whatever may be the form of the stipulations; that it has also jurisdiction over all torts and injuries committed upon the high seas and in ports or harbours within the ebb and flow of the tide; and that the like causes are within the jurisdiction of the district courts of the United States, by virtue of the delegation of authority in all civil causes of admiralty and maritime jurisdiction. The doctrines of this case have been denied, and the question has been much discussed in subsequent cases. Ramsay vs. Allegre, 12 Wheat. 638. Bains vs. The Schooner James and Catherine, Baldwin, 544. Waring vs. Clarke, 5 Howard, 441. New Jersey Steam. Nav. Co. vs. Merchants’ Bank, 6 ibid. 344. Cutler vs. Rae, 7 ibid. 729. United States vs. The New Bedford Bridge, 1 Woodb. and Minot, 401.—Sharswood.
[(p) ] 4 Inst. 134.
[(q) ] View of the Civil Law, b. iii. p. 1, 3.
[(r) ] Inst. 1. tit. 25.
[(s) ]Ff. 49, 15, 12, 6.
[(t) ]Ff. 49, 15, 18.
[(u) ] Comb. 462.
[(v) ] 18 Rep. 58 2 Lev. 25. Hardr. 183.
[(w) ] 1 Sid. 158.
[(x) ] 2 Show. 232. Comb. 474.
[14 ] The author takes no notice of what is very material,—that there are in fact two courts, the admiralty court, or more properly the instance court, of which he has hitherto been speaking, and which the statutes of Richard were made to restrain, but which has no jurisdiction in matters of prize, and the prize court. Both courts have, indeed, the same judge; but in the former he sits by virtue of a commission under the great seal, which enumerates the objects of his jurisdiction but specifies nothing relative to prize; while in the latter he sits by virtue of a commission which issues in every war, under the great seal, to the lord high admiral, requiring the court of admiralty and the lieutenant and judge of the same court “to proceed upon all and all manner of captures, seizures, prizes, and reprisals of all ships and goods that are or shall be taken, and to hear and determine according to the course of the admiralty and the law of nations:” and upon this a warrant issues to the judge. The manners of proceeding and the systems of litigation and jurisprudence are different in the two courts. The jurisdiction of this last court is exclusive: for it has been determined solemnly, that though for taking a ship on the high seas an action will he at common law, yet when it is taken as price, though wrongfully taken and there were no colour for the taking, no action can be maintained. Nor is the jurisdiction confined to captures at sea. Captures in port or on land, where the surrender has been to a naval force or a mixed force of the army and navy, are equally and exclusively triable by the prize court. The reasonableness and convenience of these determinations are beautifully enforced, in the judgments of Mr. J. Buller in Le Caux vs. Eden, and of lord Mansfield in Lindo vs. Rodney and another, Douglas’s Rep. 594, 620. Though the prize court proceeds under a commission issuing at the commencement of each war, its jurisdiction is not peremptorily terminated by the peace, but all questions of prize between the two nations will still be tried by this court. Thus, where a vessel, having been captured by an American privateer in time of war, was recaptured after the period prescribed for the cessation of hostilities by the treaty of peace, and the American commander claimed the vessel to be restored to him by suit in the prize court, the jurisdiction of the court was affirmed and a prohibition refused. Ex parte Lynch, 1 Maddock’s R. 15. The Harmony, S. C. 2 Dodson’s R. 78.—Coleridge.
The court of admiralty has now, by stat. 3 & 4 Vict. c. 65, an express jurisdiction to try questions of booty at war; and by 13 & 14 Vict. cc. 26, 27, jurisdiction in questions relating to the attack and capture of pirates is vested in the admiralty court here and in all vice-admiralty courts abroad. Offences committed within the jurisdiction of the admiralty courts may now be tried in the ordinary criminal courts. 7 & 8 Vict. c. 2. 12 & 13 Vict. c. 96.—Stewart.
The text is incorrect in stating that in prizes “between two other nations which are taken at sea and brought into our ports” the courts of admiralty have jurisdiction to determine the same according to the law of nations. The condemnation of property thus taken in war must be pronounced by a prize court of the government of the captor, sitting either in the country of the captor or of his ally. The prize court of an ally cannot condemn. Prize or no prize is a question belonging exclusively to the courts of the country of the captor. The reason of this rule is said to be that the sovereign of the captors has a right to inspect their behaviour, for he is answerable to other states for the acts of the captor. The prize court of the captor may sit in the territory of the ally; but it is not lawful for such a court to act in a neutral territory. Neutral ports are not intended to be auxiliary to the operations of the powers at war; and the law of nations has clearly ordained that a prize court of a belligerent captor cannot exercise jurisdiction in a neutral country. This prohibition rests not merely on the unfitness and danger of making neutral ports the theatre of hostile proceedings, but it stands on the ground of the usage of nations. 1 Kent’s Com. 103.—Sharswood.
[(y) ] Hale, Hist. C. L. 36, Co. Litt. 11.
[(z) ] Clerke prax cur adm. 13.
[(a) ] Ibid. 11. 1 Roll. Abr. 531. Raym. 78. Lord Raym. 1286.
[(b) ] 1 Roll. Abr. 531. Godb. 193, 260.
[(c) ] 1 Ventr. 1.
[(d) ] 1 Keb. 552.
[(e) ] Bro. Abr. tit. Error, 177.
[(f) ] F. N. B. 153, 154, 240.
[15 ] Supposing the injured party to have a complete and specific redress by suit at law, it is conceived that the circumstance of its being a more tedious method will not be sufficient to warrant the court in granting a mandamus. But where the remedy is inadequate, the writ may issue. Thus, where a party refuses to do some act which by law he ought to do, and the nonfeasance of which is injurious to the public, though this be an indictable offence, that will not prevent the issuing of a mandamus, for the indictment will not directly compel the performance of the act: the offender may be fined or imprisoned, but if he be obstinate, the party injured has no complete remedy. Rex vs. Severn and Wye Railroad Company, 2 B. & A. 646. Neither does the instance put of an admission to an office seem to be in point: for though a mandamus will undoubtedly lie for such a purpose, yet it does lie specifically, because the party without it would have no legal remedy by action. It is proper also to add another qualification. If the right in dispute be strictly and wholly private, the court will not interfere: a mandamus is properly a writ to compel the performance of public, or at least official, duties; and therefore the court, considering the Bank of England as a mere corporation of private traders. so far as regarded its internal management of its own concerns, refused to issue a mandamus upon the application of a member to compel the directors to produce their accounts in order to declare a dividend of all their profits. Rex vs. The Bank of England, 2 B. & A. 620. Rex vs. London Assurance Company, 5 B. & A. 599.
As the writ of mandamus is exclusively confined to the court of King’s Bench, and has been called one of the flowers of that court, no writ of error will lie to any other jurisdiction, if there should be any thing improper, either in the granting it, or in the proceedings under it.
On the subject of mandamus and the traversing the return if false in fact, in certain cases, see post, 264.—Coleridge.
[(g) ] Raym. 214.
[16 ] However, by stat. 1 W. IV. c. 21, s. 3, the prosecutor may now in all cases of mandamus (as he could by stat. 9 Anne, c. 20, in certain special cases) plead to or traverse the matters in any return, and proceed and obtain damages as in an action for a false return, without the necessity of bringing such action as heretofore; and, by s. 6, the costs on all applications for mandamus are to be in the discretion of the court. And now, by stat. 6 & 7 Vict. c. 67, on such return being made, the person prosecuting the writ may object to the validity of such return by way of demurrer, and thereupon the writ and return and the demurrer shall be entered upon record, and proceedings shall be taken as upon a demurrer to pleadings; and, by s. 2, upon judgment being given thereon, error may be brought for reversing the same in like manner as in ordinary civil actions.—Stewart.
The Supreme Court of the United States has power to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed or persons holding office under the authority of the United States. Act of Congress, Sept. 24, 1789, 1 Story’s Laws, 59.—Sharswood.
[(h) ] 1 P. Wms. 476.
[(i) ] Hob. 15.
[(k) ] Palmer, 523.
[(l) ] Lord Raym. 1408.
[(m) ] Finch, L. 451.
[(n) ] Cro. Eliz. 666. Hob. 188.
[(o) ] F. N. B. 40.
[(p) ] 2 Inst. 601-618.
[17 ] The general grounds for a prohibition to the ecclesiastical courts are either a defect of jurisdiction, or a defect in the mode of trial. If any fact be pleaded in the court below, and the parties are at issue, that court has no jurisdiction to try it, because it cannot proceed according to the rules of the common law; and in such case a prohibition lies. Or where the spiritual court has no original jurisdiction, a prohibition may be granted even after sentence. But where it has jurisdiction, and gives a wrong judgment, it is the subject-matter of appeal and not of prohibition. Lord Kenyon, 3 T. R. 4. But when a prohibition is granted after sentence, the want of jurisdiction must appear upon the face of the proceedings of the spiritual court. Ibid. Cowp. 422. See also 4 T. R. 382. See also 2 H. Bl. 69, 100. 3 East, 472.—Christian.
[(q) ] Barn. Not. 4to, 148.
[18 ] The ancient practice as to the writ of prohibition has been much simplified and improved by stat. 1 W. IV. c. 21.—Stewart.
The Supreme Court of the United States hath power to issue writs of prohibition to the federal district courts, when proceeding as courts of admiralty and maritime jurisdiction. Act of Congress, Sept. 24, 1789, 1 Story’s Laws, 59.—Sharswood.