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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 fuing for legacies. The two former of which, when no opposition is made, are granted merely ex officio et debito juftitiae, and are then the object of what is called the voluntary, and not the contentious jurifdiction. But when a caveat is entered against proving the will, or granting administration, and a fuit thereupon follows to determine either the validity of the teftament, or who hath a right to adminifter; this claim and obftruction by the adverse party are an injury to the party entitled, and as fuch are remedied by the fentence of the fpiritual court, either by establishing the will or granting the administration. Subtraction, the withholding or detaining, of legacies is alfo ftill 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 confequential part of teftamentary jurisdiction, the fpiritual court adminifters redrefs herein, by compelling the executor to pay them. But in this last case the courts of equity exercise a concurrent jurisdiction with the ecclefiaftical courts, as incident to fome other fpecies of relief prayed by the complainant; as to compel the executor to account for the teftator's effects, or affent 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 jurifdictions, the caufe, when once brought there, receives there alfo it's full determination.

THESE are the principal injuries, for which the party grieved either muft, or may, feek his remedy in the fpiritual courts. But before I entirely difmifs this head, it may not be improper to add a short word concerning the method of proceeding in thefe tribunals, 'with regard to the redress of injuries.

IT muft (in the first place) be acknowleged, to the ho nour of the spiritual courts, that though they continue to this

day

day to decide many questions which are properly of temporal cognizance, yet justice is in general fo ably and impartially administered in thofe tribunals, (efpecially of the fuperior kind) and the boundaries of their power are now fo well known and established, that no material inconvenience at present arises from this jurifdiction ftill continuing in the antient channel. And, fhould an alteration be attempted, great confufion would probably arife, in overturning long eftablished forms, and new-modelling a courfe of proceedings that has now prevailed for seven centuries.`

THE establishment of the civil law procefs in all the ecclefiaftical courts was indeed a masterpiece of papal discernment, as it made a coalition impracticable between them and the national tribunals, without manifeft inconvenience and hazard. And this confideration had undoubtedly it's weight in caufing this measure to be adopted, though many other caufes concurred. The time when the pandects of Juftinian were discovered afresh and rescued from the duft of antiquity, the eagerness with which they were studied by the popish ecclefiaftics, and the confequent diffentions between the clergy and the laity of England, have formerly been spoken to at large. I fhall only now remark upon thofe collections, that their being written in the Latin tongue, and referring fo much to the will of the prince and his delegated officers of juftice, fufficiently recommended them to the court of Rome, exclufive of their intrinfic merit. To keep the laity in the darkeft ignorance, and to monopolize the little fcience, which then exifted, entirely among the monkish clergy, were deeprooted 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, fo the canon law procefs was formed on the model of the civil law: the prelates embracing with the utmost ardor 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 9 Vol. I. introd. §. I. G 3

Gothic

Gothic liberty) and which placed an arbitrary power of deciñon in the breast of a single man.

THE proceedings in the ecclefiaftical 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 interpofition of the courts of common law. For, if the proceedings in the spiritual court be ever fo regularly confonant to the rules of the Roman law, yet if they be manifeftly repugnant to the fundamental maxims of the municipal laws, to which upon principles of found policy the ecclefiaftical procefs ought in every state to conform '; (as if they require two witneffes to prove a fact, where one will fuffice at common law) in fuch cafes a prohibition will be awarded against them. But, under these restrictions, their ordinary courfe 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 fet forth the complainant's ground of complaint. To this fucceeds the defendant's anfwer upon oath, when, if he denies or extenuates the charge, they proceed to proofs by witneffes examined, and their depofitions taken down in writing, by an officer of the court. If the defendant has any circumstances to offer in his defence, he muft alfo propound them in what is called his defenfive allegation, to which he is entitled in his turn to the plaintiff's anfaver 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 anfwer 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 afferted the doctrines of judicial as well as civil liberty) continued till the middle of the laft century to be upheld by the fpiritual courts: when the legiflature was obliged to interpole, to teach them a lefion of fimilar moderation. By the

↑ Waib, alliance. 179,

2 Roll. Abr. 300. 302.

ftatute

ftatute of 13 Car. II. c. 12. it is enacted, that it shall not be lawful for any bishop or ecclefiaftical judge, to tender or administer to any perfon whatsoever, the oath ufually called the oath ex officio, or any other oath whereby he may be compelled to confefs, accufe, or purge himfelf of any criminal matter or thing, whereby he may be liable to any cenfure or punishment. When all the pleadings and proofs are concluded, they are referred to the confideration, not of a jury, but of a fingle judge; who takes information by hearing advocates on both fides, and thereupon forms his interlocutory decree or definitive fentence at his own difcretion: 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 ftatute 25 Hen VIII, C. 19.

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BUT the point in which these jurisdictions are the most defective, is that of enforcing their fentences when pronounced; for which they have no other process but that of excommunication: which is defcribed" to be twofold; the lefs, and the greater excommunication. The lefs is an ecclefiaftical cenfure, excluding the party from the participation of the facraments: the greater proceeds farther, and excludes him not only from these but also from the company of all chriftians. But, if the judge of any fpiritual court excommunicates a man for a caufe of which he hath not the legal cognizance, the party may have an action against him at common law, and he is alfo liable to be indicted at the fuit of the king".

HEAVY as the penalty of excommunication is, confidered in a serious light, there are, notwithstanding, many obstinate' or profligate men, who would defpife the brutum fulmen of mere ecclefiaftical cenfures, especially when pronounced by a petty furrogate in the country, for railing or contumelious words, for non-payment of fees, or cofts, or for other trivial caufes. The common law therefore compaffionately steps in to

t Chap. 5.
* Co. Litt. 133.

G 4

w 2 Inft. 623.

the

the aid of the ecclefiaftical jurisdiction, and kindly lends a supporting hand to an otherwise tottering authority. Imitating herein the policy of our British ancestors, among whom, according to Caefar, whoever were interdicted by the Druids from their facrifices, " in numero impiorum ac fcelera«torum habentur: ab iis omnes decedunt, aditum eorum fermo"nemque defugiunt, ne quid ex contagione incommodi accipiant : "neque iis petentibus jus redditur, neque honos ullus communica"tur." And fo 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 perfonal, to recover lands or money due to him ". Nor is this the whole for if, within forty days after the fentence has been published in the church, the offender does not submit and abide by the sentence of the spiritual court, the bishop may certify fuch contempt to the king in chancery. Upon which there iffues out a writ to the fheriff of the county, called, from the bishop's certificate, a fignificavit; or from it's effects a writ de excommunicato capiendo: and the sheriff fhall thereupon take the offender, and imprison him in the county gaol, till he is reconciled to the church, and fuch reconciliation certified by the bishop; upon which another writ, de excommunicato deliberando, iffues out of chancery to deliver and release him . This procefs feems founded on the charter of feparation (fo often referred to) of William the conqueror. "Si aliquis per fuperbiam elatus ad juflitiam epifcopalem venire noluerit, vocetur femel, fecundo, et tertio: quod fi nec fic ad emendationem venerit, excommunicetur, et, fi opus fuerit, ad hoc vindicandum fortitudo et juftitia regis five vice"comitis adhibeatur." And in cafe of fubtraction of tithes, a more fummary and expeditious affiftance is given by the ftatutes of 27 Hen. VIII. c. 20. and 32 Hen. VIII. c. 7.、 which enact, that upon complaint of any contempt or misbehaviour of the ecclefiaftical judge by the defendant in any fuit for tithes, any privy counsellor, or any

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z F. N. B. 62.

* de bello Gall. 1.6. y Litt. §. 201.

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