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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, 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 Gothic liberty) and which placed an arbitrary power of de- [100] cifion 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 ufages, 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 answer 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 circumftances 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 anfwer upon oath, and may from thence proceed to proofs as well as his antagonist. The canonical doctrine.

r Warb. alliance. 179.

$ 2 Roll. Abr. 300, 302.

of

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 impofed 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 interpofe, to teach them a leffon of fimilar moderation. By the [101] ftatute of 13 Car. II. c. 12. it is enacted, that it fhall not be lawful for any bifhop or ecclefiaftical judge, to tender or administer to any perfon whatsoever, the oath usually called the oath ex officio, or any other oath whereby he may be compelled to confefs, accufe, or purge himself 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 flatute 25 Hen. VIII,

c. 19.

BUT the point in which thefe jurifdictions are the most defective, is that of enforcing their fentences when pronounced; for which they have no other procefs 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 thefe but alfo 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

t Chap. 5.

a Co. Litt. 133.

common

common law, and he is alfo liable to be indicted at the suit

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 despise 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 the aid of the ecclefiaftical jurifdiction, and kindly lends a [102] 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 perfon is difabled 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 (4), 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 sentence has been published in the church, the offender does not fubmit y Litt. §201.

w 2 Inft. 623.

x de bello Gall. 1.6.

(4) In antient times, a perfon, who by his contempt of the laws and judgments of the church, had brought upon himfelf the fentence of excommunication, was thought to be influenced by no religious fentiments, and confequently to be regardless of the obligation of an oath; but as the fame degree of reverence is not at prefent attached to the cenfures and decrees of the fpiritual judge, and as this incapacity of witneffes is a great obftruction to the adminiftration of juftice, it ought to be removed by the authority of the legislature.

and

and abide by the fentence of the fpiritual 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 fheriff fhall thereupon take the offender, and imprifon him in the county gaol, till he is reconciled to the church, and fuch reconciliation certified by the bifhop; 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 (so often referred to) of William the conqueror. "Si aliquis per fuperbiam elatus ad juflitiam epifco"palem venire noluerit, vocetur femel, fecundo, et tertio: quod "fi nec fic ad emendationem venerit, excommunicetur; et, fi opus "fuerit, ad hoc vindicandum fortitudo et juflitia regis five vice"comitis adhibeatur." And in cafe of fubtraction of tithes, a more summary and expeditious affistance 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 mitbehaviour of the ecclefiaftical judge by the defend[103] ant in any fuit for tithes, any privy counfellor, or any two juftices of the peace (or, in cafe of difobedience to a definitive fentence, any two juftices of the peace) may commit the party to prifon without bail or mainprize, till he enters into a recognizance with fufficient fureties to give due obedience to the process and fentence of the court. Thefe timely aids, which the common and ftatute laws have lent to the ecclefiaftical jurifdiction, may serve to refute that groundless notion which fome are too apt to entertain, that the courts of Weftminster-hall are at open variance with thofe at doctors' commons. It is true that they are fometimes obliged to use a parental authority, in correcting the exceffes of these inferior courts, and keeping them within their legal bounds; but, on the other hand, they afford them a parental affiftance in repreffing the infolence of contumacious delinquents, and refcuing their jurifdiction from that contempt, which for want of fufficient compulfive powers would otherwife be fure to attend it.

2 F. N. B. 62.

II. I AM

II. I AM next to confider 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 alfo of things which touch "C war within the realm, which cannot be determined or dif"cuffed by the common law; together with other ufages "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 fuch being ufually cognizable in the courts of Westminster-hall, if not directly, at least by fiction of law as if a contract be made at Gibralter, the plaintiff may fuppofe it made at Northampton; for the locality, or place of making it, is of no confequence with regard to the validity of the contract.

THE words, "other usages and customs," fupport the claim of this court, 1. To give relief to fuch of the nobility and gentry as think themfelves aggrieved in matters of honour; and 2. To keep up the diftinction of degrees and quality. Whence it follows, that the civil jurifdiction of this court of [104] chivalry is principally in two points; the redreffing injuries of honour, and correcting encroachments in matters of coatarmour, precedency, and other diftinctions of families.

As a court of honour, it is to give fatisfaction to all fuch as are aggrieved in that point; a point of a nature so nice and delicate, that it's wrongs and injuries escape the notice of the common law, and yet are fit to be redreffed fomewhere. Such, for inftance, as calling a man coward, or giving him the lie; for which, as they are productive of no immediate damage to his perfon or property, no action will lie in the courts at Westminster and yet they are fuch injuries as will prompt every man of spirit to demand fome honourable amends, which by the antient law of the land was appointed to be given in the court of chivalry. But modern refolutions have deter• Year book, 37 Hen. VI. 21. Selden of duels, c. 10. Hal. hift. C. L. 37. VOL. III.

I

mined,

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