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the execution of their office, until they have dismissed the apparitors by them so deputed; and the parties themselves so deputed, shall for ever be removed from the office of apparitors, and if being so removed they desist not from the exercise of their said offices, let them be punished by ecclesiastical censures as persons contumacious. Provided, that if upon experience the number of the said apparitors be too great in any diocese, in the judgment of the archbishop for the time being, they shall by him be so abridged, as he shall think meet and convenient (z)."

[This canon was probably founded on the decrees in the Provincial Constitutions of Lindwood.-Provin. Const. de censibus et procur. cap. ann. apparitorum.-ED.]

Faithfully execute their Offices.] If a monition be awarded to an apparitor, to summon a man, and he upon the return of the monition avers that he had summoned him, when in truth he had not, and the defendant be thereupon excommunicated; an action on the case at common law will lie against the apparitor for the falsehood committed by him in his office, besides the punishment inflicted on him by the ecclesiastical court for such breach of trust (a).

Office of Promoters or Informers for the Court.] H. 8 Car. Carlion and Mill. Action upon the case, for that the defendant being an apparitor under the bishop of Exeter, maliciously, and without colour or cause of suspicion of incontinency, of his own proper malice, procured the plaintiff ex officio, upon pretence of fame of incontinency with one Edith (whereas there was no such fame nor just cause of suspicion), to be cited to the consistory court, and there to be at great charges and vexation until he was cleared by sentence; which was to his great discredit, and cause of great expenses and losses; for which the action is brought. Upon not guilty pleaded, and found for the plaintiff, it was moved in arrest of judgment, that in this case an action lieth not; for he did nothing but as an informer, and by virtue of his office. But all the court held, forasmuch as it is alleged that he did maliciously and without colour of suspicion cause him to be cited, upon pretence of fame where there was no offence committed, and it is averred that there was not any such fame, and he is found guilty thereof, therefore the action well lieth (b).

Neither shall they exact more Fees than are in these our Constitutions formerly prescribed.] That is, in Can. 135, which is specified under the title fees. These fees, if withheld, may be recovered in an action at law, but cannot be libelled for in the Ecclesiastical Court (c). See Prohibition.

In Folkes' case (d) it would

(z) Can. 138.

(a) Ayl. Parerg. 70; 2 Bulst. 264.
(b) Cro. Car. 291; 1 Roll. Ab. 93.

seem that a mandamus lies to

(c) Doug. Rep. 629.
(d) [Cited Stra. 877.]

admit the archbishop's apparitor-general. See Reyner and Parker's case, upon the authority of a summoner, which was held not to extend to ordering a parson to pay tithes to a person to whom he had not paid them, although the bishop certified he had refused to pay them according to 26 Hen. 8 (e). In Pool and Godfrey's case an action was allowed to lie against a summoner for having falsely returned to the Ecclesiastical Court that he had summoned a person, in consequence of which false return the plaintiff had been excommunicated (f). -ED.]

Appeal(g).

tion and Ori

CAN appeal is a provocation from an inferior to a superior The Descripjudge, whereby the jurisdiction of the inferior judge is for a gin of Appeal. while suspended as to the cause from which such appeal is made, the cognizance of it having been transferred to the superior judge. It is laid down in the books of civil and canon law that an appeal, as well as a judicial process, derives its origin from the law of nations.

[Very ancient usage, it would seem, invented and introduced this right in order that no man might be injured by the injustice or unskilfulness of his judge, but that every person judicially aggrieved, whether principal litigant or not, provided it were his interest to have the sentence from which he appealed reversed, should be entitled to this remedy. Appeals have been therefore much favoured by all systems of jurisprudence, and the right of instituting them universally considered as sacred. Durandus expressly says that the right should be so esteemed by the judge appealed from ("reverenter ei deferat”), and that even in doubtful cases he should receive and admit an appeal. The best authorities are of opinion, that during the Saxon dominion in this kingdom there existed a Court of Appeal from the rigour of the law, and from false judgments, which might have passed in the Hundred Courts before the establishment of the courts in Westminster Hall in the reign of Edward I. This Court of Appeal in cases of equity was then the king in his court of the lords, as appears by the laws of Edgar, Canute, and Edward the Confessor. After the Norman Conquest, there were two supreme courts: the Exchequer Court, which William I. transplanted from Normandy to adju

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Appeals granted to the

early practice

dicate on all matters relating to the royal revenue; the Supreme, Court of Justice, " Curia Regis," where all greater causes and appeals were heard. Here the lord chancellor attended the king's person as well as the judges of the King's Bench (e), chiefly, it appears, for the direction and adjudication of appealed cases (f), which the division of the courts in Westminster Hall ultimately transferred to the House of Lords, as successors to the Curia Regis. "For a Court of Appeal somewhere is certainly a part of our constitution." In the Courts of Chancery and the Ecclesiastical Courts of this country, paupers have been allowed the right of appeal, even in that capacity, in very recent cases (g).

[As to the early practice of the church upon this point with Clergy by the respect to its ordained ministers, it seems to have permitted a of the Church. presbyter or deacon, excommunicated by his own bishop, to appeal first to the metropolitan, from him to the provincial synod, and from that to the patriarch, from whom there lay no appeal except to a general council ().

Appeals

granted to the

Clergy from Archbishop in by 1 & 2 Vict.

the Bishop to

certain cases,

c. 106.

Mode of

conducting

der 1 & 2

Vict.

By the 1 & 2 Vict. c. 106, an act which has, in many respects, greatly increased the power of the diocesan over his clergy (i), an appeal is granted in most cases where such increase of power is given, from the bishop to the archbishop of the province, to be presented within one month from the decision of the former. But in one instance this privilege has been denied. The act invests the diocesan with great power as to the appointment of curates to beneficed clergymen; but clause 83, which empowers the bishop to fix the stipend of the curate, also provides that "in case any difference shall arise between the incumbent of any benefice and his curate touching such stipend or the payment thereof or of the arrears thereof, the bishop on complaint to him made may and shall summarily hear and determine the same without appeal; and that in case of wilful neglect or refusal to pay such stipend or the arrears thereof, he be hereby empowered to enforce the payment of such stipend by monition and by sequestration of the profits of such benefice."

[By 1 & 2 Vict. c. 106, s. 111, "All appeals under the proAppeals, un visions of this act to any archbishop shall be in writing signed by the party appealing; and that in order to discourage frivolous appeals no proceeding shall be had in any such appeal until the appellant shall, if required, have given security in such form and to such amount as the archbishop shall direct of payment to the bishop of such costs as shall be awarded by

(e) [Artic. super Chart. c. 5, 28, ed. 1.]

(f) ["Hic est qui regni leges cancellat iniquas,' ""Et mandata pii principis aqua facit."-John of Salisbury on Thomas à Becket.-ED.]

(g) [Blond v. Lamb, 2 J. & W. 402; Grindall v. Grindall, Haggard, R. 1.] (h) [Concil. Sardic. Can. 14.] (i) [This act is printed at length under title plurality.-ED.]

the archbishop if he shall decide against the appellant; and that after such security, if required, shall have been given, the said archbishop shall forthwith, either by himself or by some commissioner or commissioners appointed under his hand from among the other bishops of his province, make or cause to be made inquiry into the matter complained of, and shall after such inquiry, and in the latter case after a report in writing from his said commissioner or commissioners, give his decision in such appeal in writing under his hand; and when he shall decide the merits of the appeals against the appellant, he shall also award and direct whether any and what amount of costs shall be paid by the appellant to the bishop respondent; and in like manner, when he shall decide in favour of the appellant, he shall also award and direct whether any and what amount of costs shall be paid by the bishop respondent to the appellant."

Vict.

[By ss. 13, 15 & 16 of 3 & 4 Vict. c. 86, it is enacted, "That And 3 & 4 the bishop on ascertaining according to the method prescribed in this act that there is prima facie evidence against a clergyman, may himself send the cause to the Court of Appeal of the province, or the clergyman may appeal to it, but not from an interlocutory decree, unless it have the effect of a definitive sentence; the appeal may be carried from thence to the judicial committee of the privy council, of which committee one archbishop or bishop at least must be a member, but he must not be the archbishop or bishop who issued the commission, or who heard either by appeal or by letters of request the cause in the court from which the appeal is made. See Privileges and Restraints of the Clergy.-ED.]

1. There were no appeals to the pope out of England before the reign of King Stephen, when they were introduced by Henry de Blois, bishop of Winchester, the pope's legate. Not but attempts had been made before that time to carry appeals to Rome, which were vigorously withstood by the nation, as appears by the complaint of the pope in the reign of Henry I. that the king would suffer no appeals to be made to him; and before that, in the reign of William Rufus, the bishops and barons told Anselm (who was attempting it) that it was a thing unheard of for any one to go to Rome, (that is, by way of appeal), without the king's leave. And though this point was yielded in the reign of King Stephen, yet his successor Henry II. resumed and maintained it, as appears by the constitutions of Clarendon, which provide for the course of appeals within the realm, so as that further process be not made, without the king's assent (k). And afterwards, in the parliament of

(k) This assent might be withheld and the appeals prohibited, as we find by a writ in the Register, fo. 89, de

securitate invenienda quod se non di-
vertat aliquis versus partes externas
sine licentia regis.

[58]

Origin of

Appeals to

Appeals to Rome abolished.

Northampton, the constitutions of Clarendon were renewed; and in the reigns of Richard I. and King John, we find new complaints of the little regard paid to those appeals; for which also divers persons were imprisoned in the reigns of Edward I., Edward II. and Edward III. (1).

Nevertheless, appeals to Rome still obtained until the reign of king Henry VIII. when they were finally abolished by the statutes of the 24 Hen. 8, c. 12, and 25 Hen. 8, c. 19, here following:

2. By the 24 Hen. 8, c. 12, ss. 2,4, "All causes testamentary, causes of matrimony, and divorces, rights of tithes, oblations, and obventions, shall be finally determined within the king's jurisdiction and authority, and not elsewhere; any foreign appeals to the see of Rome, or to any other foreign courts or potentates, to the let or impediment thereof in any wise notwithstanding. And if any person shall procure from the see of Rome or any other foreign court any appeal in any the causes aforesaid, or [59] execute any process concerning the same, he shall incur a præmunire."

Appeals to the several Courts respectively within this Realm.

And by the 25 Hen. 8, c. 19, ss. 3, 5, "No manner of appeals shall be had out of this realm to the bishop or see of Rome, in any causes or matters whatsoever; but all manner of appeals, of what nature or condition soever they be, shall be made and had after such form and condition, as is limited for appeals in causes of matrimony, tithes, oblations, and obventions, by a statute made since the beginning of this parliament. And if any person shall sue any appeal to the bishop or see of Rome, or procure or execute any process from thence; he, his aiders, counsellors, and abettors, shall incur a pramunire."

And by 24 Hen. 8, s. 12, c. 5, "Appeals within this realm shall be in this form, and not otherwise; first, from the archdeacon or his official, if the matter or cause be there begun, to the bishop."

Sect. 6. "If it be commenced before the bishop or his commissary, then from the bishop or his commissary, within fifteen days next ensuing the judgment or sentence given, to the archbishop, and there to be definitively and finally ordered, decreed and adjudged, without any other appeal whatsoever."

Sect. 7." If the matter for any the causes aforesaid, be commenced before the archdeacon of any archbishop, or his commissary, then the party grieved may take his appeal, within fifteen days next after judgment or sentence given, to the Court of the Arches, or audience of the same archbishop; and from the said Court of the Arches, or audience, within fifteen days then next ensuing after judgment or sentence there given, to the archbishop of the same province, there to be finally determined without any other appeal."

(1) Gibs. 83; 4 Inst. 341.

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