and a writ de contumace capiendo is to issue from chancery upon the signification of the ecclesiastical judge, which is to have the same force as the former writ.

Excommunication can therefore now only be resorted to as a punishment or spiritual censure for an offence of ecclesiastical cognisance. But in such cases it produces none of those civil disabilities which followed from the ancient process of excommunication, nor indeed any temporal punishment, except imprisonment for such term, not exceeding six months, as the court shall direct; and the writ de excommunicato capiendo issues in the same manner as before for the execution of such sentence.1 Here we must not omit to observe, that by the canons of the Anglican Church, excommunicated persons are excluded from Christian burial.2

Besides excommunication two less severe censures are in use in the Anglican church, namely, suspension and degradation, or deposition.

I. Suspension is a censure whereby ecclesiastical persons are forbidden to exercise their office, or take the profit of their benefices; or they are wholly or partially prohibited for a certain time, in both of them. Hence there is suspensio ab officio, or suspensio a beneficio, and ab officio et beneficio.3 There is also a suspension to which the laity are subject; that is to say, suspension ab ingressu ecclesiæ, or from participation in the services of the church, which is used, as in the canon law, for the lesser excommunication.4

II. Degradation, or deposition, is the perpetual deprivation of all right to exercise ecclesiastical functions, or to possess any privileges or emoluments attached to them.5 In the first centuries of the church, the terms deposition and degradation were used indifferently; but in the more modern canon law, deposition is where a clerk is deprived of his benefice, office, or dignity; and degradation is the deprivation of his order itself, that is to say, of all right to perform the functions belonging thereto.6

There now only remain to be considered the provisions which the law has made for keeping the ecclesiastical courts within the bounds assigned to them by the public law of the land. The principal remedy provided for this purpose, is the writ of prohibition, which indeed may be directed not only to the courts Christian, or ecclesiastical courts, but to other inferior tribunals, which we shall consider in the next chapter.

"A prohibition," says Blackstone, "is a writ issuing properly out

1 Rogers, Eccles. Law, tit. Excommunication, p. 423, 424. Stat. 53 Geo. III, c. cxxvii. § 2, 3.

2 Canon 68. 2 Phill. 273.

4 Stat. 24 Hen. VIII. c. xii.

5 Gibson, Codex, tit. xlvi.

3 Wood's Inst. 510.

6 Fleury, Inst. Par. I. c. ix.

of the king's bench, being the king's prerogative writ; but for the furtherance of justice it may also be had in some cases out of the court of chancery', common pleas 2, or exchequer, 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 cognisance of some other court." This writ may also issue in another species of cases; namely, where in handling of matters clearly within their cognisance the inferior jurisdiction transgresses the rules prescribed to them by the law of England; for where the law of the land, and that by which the ecclesiastical court regulates its decision, differ, and it is not properly a spiritual question, but one allowed to be decided in that court, because incident or accessary to some original question clearly within their jurisdiction,-it ought to be decided not by the ecclesiastical, but the temporal law; because otherwise the same question might be determined in different ways, according to the court in which the suit is depending. "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 awards it; and an action will also lie against them to repair the party in damages.""

And it is proper to add here, that in almost every state in Europe under the Roman Catholic Church, the temporal courts or the state take cognisance of appeals, ab abusu, in cases where the ecclesiastical judge is alleged to have exceeded his powers. The great object of all legislation on this subject is to prevent the exterior power of the ecclesiastical magistrate from encroaching on the temporal jurisdiction from whom that exterior power emanates; but, at the same time, to leave inviolate the spiritual rights and functions of the church, and not to deprive her of any portion of that freedom which is essential to the due performance of her sacred office.

The duty of the civil power to support and maintain the laws of the church is irreconcilable with any violation of her liberty; and that duty should be the more diligently performed in proportion to the

1
1 1 P. Williams, 476.

2 Hob. 15.

3 Palmer, 523.

4 Blackst. Com. b. iii. c. vii. p. 111, 112.; and see 2 Inst. 601, 618.

5 Fitzh. Nat. Brev. 40.

6 Blackst. Com. ibid. p. 112. As to the mode of proceeding to obtain or resist the issuing of a prohibition, see stat. 1 Wm. IV. c. xxi.

7 Palmer, Treat. on the Church, vol. ii. p. 343. Van Espen, Tract. de Recursu ad Principem. Fleury, Inst. Par. I. c. v. Van Espen, Jus. Eccles. Par. III. tit. x. c. iv. De Marca de Concord. Sacerd. et Imper. lib. iv.

8 Chancellor d'Aguesseau, Euvres, t. i. p. 416.

excellence of the end therein proposed. "Si leges civiles," says the emperor Justinian, "quarum potestatem nobis Deus pro suâ benignitate credidit, firmas ab omnibus custodiri ad obedientium securitatem studemus ; quanto plus studii adhibere debemus circa sacrorum canonum et divinarum legum custodiam, quæ super salute nostrarum animarum definitæ sunt."

CHAPTER XVIII.

FO COURTS MILITARY AND MARITIME, AND COURTS OF A
SPECIAL JURISDICTION.

Two species of courts, whose jurisdiction is equally public and general with that of the courts of common law and equity already described, but which take cognisance of matters of a peculiar nature, remain to be considered; namely, courts military and maritime.

I. Of the courts military Blackstone gives the following account:"The only court of this kind known to and established by the permanent laws of the land, is the court of chivalry, formerly held before the lord high constable and earl marshal of England jointly; but since the attainder of Stafford, duke of Buckingham under Henry VIII., and the consequent extinguishment of the office of lord high constable, it hath usually, with respect to civil matters, been held before the earl marshal only. This court, by stat. 13 Rich. II. hath cognisance of contracts and other matters touching deeds of arms and war, as well out of the realm as within it; and from its sentences an appeal lies immediately to the sovereign in person.3 This court was in great reputation in the times of pure chivalry, and afterwards during our connexion with the continent by the territories which our princes held in France; but is now grown almost entirely out of use, on account of the feebleness of its jurisdiction and want of power to enforce its judgments, as it can neither fine nor imprison, not being a court of record."

1 Novel. 137. c. i.

2 Lev. 230. Shower, Parl. Cas. 60.

34 Inst. 125. Where the reader will find curious particulars concerning this court, and the heralds, in Coke's quaint style.

+ 7 Mod. 127. Blackst. Com. b. iii. c. v. p. 67. As to the constable and marshals, see Hargrave's note, Co. Litt. 74 a, 74 b. The earl marshal is mentioned in stat. 1 Hen. IV. c. xxiv.; 8 Rich. II. c. v.; 12 Rich. II. stat. i. c. ii. See also Modum

Certain general words in the statute 13 Rich. II. c. ii. 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 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 ancient law of the land, were appointed to be given in the court of chivalry.' But modern resolutions have determined, that how much soever such a jurisdiction may be expedient, yet no action for words will lie therein."2

"As to the other point of its civil jurisdiction, the redressing of encroachments and usurpations in matters of heraldry and coatarmour, 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."4

Nothing need be said here respecting what are commonly called courts martial, constituted pro re natâ, and held under the authority of the annual mutiny acts; a subject which will be more conveniently treated as a part of the law touching the military state.

II. "The maritime courts," as Blackstone informs us, "or such as have power and jurisdiction to determine all maritime injuries arising upon the seas, or in parts out of the reach of the common law, are only the court of admiralty and its courts of appeal. The court of admiralty is held before the lord high admiral of England or his deputy, who is called the judge of the court, or before the dean of the arches, who is authorised by stat. 3 & 4 Victoria, ch. 65, intituled, An Act to improve the practice and extend the jurisdiction

faciendi duellum coram Rege, in an append. to Rapin's Hist. And see Duck de Author. Jur. Civ. lib. ii. c. viii. Par. III. § 13, 14, 15, &c.

1 Year-book, 37. Hen. VI. xxi. Selden of Duels, c. x. Hale, Hist. Com. L. 37.

2 Salk. 553. 7 Mod. 125. 2 Hawk. Pl. of the Crown, c. iv.

3 Blackst. Com. b. iii. c. vii. p. 103, 104, &c.

of the court of Admiralty, to exercise all the power and jurisdiction of the judge of that court. According to sir Henry Spelman and Lambard', it was first of all erected by king Edward III. Its proceedings are according to the method of the civil law, like those of the ecclesiastical courts; upon which account it is usually held at the same place with the superior ecclesiastical courts, at Doctors' Commons, in London. But by stat. 3 & 4 Vict. c. 65. sect. 11. 13., the court has power to direct a trial by jury before a common law judge, of any question of fact arising in any suit depending therein, and to direct new trials of such issues. It is no court of record, any more than the spiritual courts. From the sentences of the admiralty judge an appeal always lay in ordinary course to the king in chancery, as may be collected from the stat. 25 Henry VIII. c. xix., which directs the appeal from the archbishops' courts to be determined by persons named in the king's commission, like as in case of appeal from the admiral court. This is also expressly declared by stat. 8 Eliz. c. v., which enacts, that upon appeal made to chancery, the sentence definitive of the delegates appointed by commission shall be final." But now, by stat. 3 and 4 Will. IV. c. xli., the appellate jurisdiction over causes determined in the high court of admiralty is transferred to the queen in council; and by stat. 3 & 4 Will. IV. c. 41. and 6 & 7 Vict. c. 38., those appeals are heard in the judicial committee of the privy council, and determined by her majesty on the report of the committee. By virtue of and under the same statutes appeals in prize suits and other suits from the vice-admiralty courts in America, and our other plantations and settlements, must also be brought before the queen in council. "But in case of prize vessels, taken in time of war in any part of the world, and condemned under treaties in any courts of admiralty or vice-admiralty as lawful prize, an appeal lies to certain commissioners of appeals, consisting chiefly of the privy council. And this is by virtue of divers treaties with foreign nations; by which particular courts are established in all the maritime countries of Europe for the decision of this question, whether lawful prize or not: for this being a question between subjects of different states, it belongs entirely to the law of nations, and not to the municipal laws of either country to determine it. The original court to which this question is permitted in England, is the court of admiralty; and the court of appeal is in effect the privy council, the members of which are, in consequence of treaties, commissioned under the great seal for this purpose."2

1 Spelm. Gloss. 13. Lamb. Archeion.

This

2 Blackst. Com. b. iii. c. v. p. 68, 69; stat. 2 & 3 Will. IV. c. xcii.; and see Blackst. Com. b. iii. c. vii. p. 105, 106, &c. Co. Litt. 260, 261. 4 Inst. c. xxii.