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** in curia chriflianitatis audiri debet et terminati'." And the Scots book called regiam majejlatem 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 t 91 J it on the continent were effectually curbed by the edict of the emperor Justin ', which restrained the insinuation or probate of testaments (as formerly) to the office of the magifler census : for which the emperor subjoins this reason; "abfur"dum etenim clericis ejl, immo etiam opprobriosum, ft peritosse (t velint ojlendere disccptationum esse forensium." But afterwards by the canon lawm it was allowed, that the bishop might compel by ecclesiastical censures the performance of a bequest to phus uses. And therefore, as that was considered as a cause quaesecundum canones et episcopates 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 foul", 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 aera 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 distributedprosalutt animae ejus, ecchsine concilia °; which latter words are equivalent to per visum ecchsine in the great charter of king John before-mentioned. And the Danes and Swedes (who re

i l. 7. c. S. d'jpojucrit, axor sua, Jive liberi, ant pa*

* /. 1. c. 38. rtnui et legitimi bominei ejut, earn pro

I Cod. 1. 3. 41. animaejusdivldant.sicutdt me/iui •visum

"> Dtirttal. 3.16. 17. Cilb. Rep. suerit. (Text. Kcjscns. c 34.^. 51.)

»04, 205. "Lord Lyttitt. Ken. II. vol. I. 536.

» Si quit barottum feu bominum -ata- Hcarnc ad Gn!. Niubr, Jit. ran—-pecuniar* suam M.m dtdcr'U vel dart

ceived 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 bishop, and in the prerogative court os the metropolitan, originally; and [ 98 ] 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 ojficio et debitojufiitiae, 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 os testamentary jurisdiction, the spiritual court administers redress herein, by compelling the executor to pay them. But in this last cafe 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 te 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 it's full determination.

These are the principal injuries, for which the party

grieved either must, or may, seek his remedy in the spiritual


J>Sticrnhook, Jijurt Sneer.. /. 3. c. 8.


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 acknowleged, to the honour of the spiritual courts, that though they continue to this oo ] 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. And, should an alteration be attempted, great confusion would probably arise, in overturning long establistied 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 dissentions between the clergy and the laity of England, have formerlyi 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 monkifli clergy, were deep

<i Vol. I. introd. § I.


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 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 Gothic liberty) and which placed an arbitrary power of de- [ loo ] cision in the breast of a single man.

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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 usnges, 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'; (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 defendtnt'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 dtfenfve 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

r Warb. alliance. 179. • 1 Roll, Abr. 300. 302.


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 lesson of similar moderation. By the 101 J statute 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 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 adTocates en 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 '; though, if the fame 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 txcommunication : 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 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

t Chap. 5. »Co. Litt. 133.


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