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day 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. Arid, 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 it's 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 diflentions between the clergy and the laity of England, have formerly' 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 deeprooted principles of papal policy. And, as the bifliops 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 die model of the civil law: the prelates embracing with the utmost ardor a method of judicial proceedings, which was carTied on in a language unknown to the bulk of the people, •which banished die intervention of a jury, (that bulwark of
H Vol. I. introd. §. I.
G 3 Godiic
Gothic liberty) and 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 found 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 ". 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 defendants answer upon oath, when, if he denies or extenuates the charge, they proceed to proofs by witnesses examined, and their depositions taken clown 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 w-cll 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 it's clerical chancellors, and asserted the doctrines of judicial as well as civil liberty) continued till the middle of the last century to be upheld by the spiritual courts: when the legislature was obliged to interpose, to teach them a lesion of similar moderation. By the
» Wilb. alliance* >-o, t % Roll. Abr. 300. 302.
statute of 13 Car. II. c. 12. it is enacted, that it sliall 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 os 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 fides, 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 '; though, if the fame be not appealed from in fifteen days, it is final, by the statute 25 Hen VIII, c- I p.
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 ■ 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 farther, 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.
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 fulnien of mere ecclesiastical censures, especially when pronounced by a petty surrogate in the country, for railing or contumelious words, for non-payment of fees, or costs, or for other trivial causes. The common law therefore compassionately steps in to
« Chap. 5. » 2 Inst. 623.
■ Co. Lite. 133.
G 4- the the 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 Caesarx, whoever were interdicted by the Druids from their sacrifices, "in mtmero impiorum ac scelera"torum habentur: ab us omnes decedunt, aditum eorum sermo"nemque desugittnt, ne quid ex contagione incommodi accipiant .• "neque Us petentibus jus redditur, neque honos ullus communica-* "tur." 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, cither real or personal, to recover lands or money due to him *. 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 certificate, a stgnificavit; or from it's 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; upon which another writ, de excommunicato deliberando, issues out of chancery to deliver and release him x. This process seems founded on the charter of separation (so often referred to) of William the conqueror. "Si aliquisper superbiam elatus ad j us hi am episco"palem venire nolucrit, vocetursemel, fecundo, et tertio: quod "s nee sic ad emendationem venerit, excommiinicetur, et,ft opus "suerit, ad hoc vindicandum fortitude et juslitia regissiiye vice"comitis 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 misoehaviour of the ecclesiastical judge by the defendant in any suit for tithes, any privy counsellor, or any
two justices of the peace (or, in cafe 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 of 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.
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 dis"cussed by the common law •, together with other usages "and customs to the fame 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, I. To give relief to such of the nobility and gentry as think themselves aggrieved in matters of honour j and 2. To keep up the distinction of degrees and quality.