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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, so the canon law process was formed on the model of the civil law: the prelates embracing with the ut. most 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 ) cision 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 interposition of the courts of common law. For, if the proceedings in the spiritual court be ever fo 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 sound policy the ecclefiaftical 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 defendant'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 defensive allegation, to which he is entitled in his turn to the plaintiff's answer upon oath, and may from thence proceed to prcofs as well as his antagonist. The canonical doctrine

- Warb. alliance. 179.

s 2 Roll. Abr. 300. 302.

of

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 in

terpose, to teach them a lesion of similar moderation. By the [ 101 ] 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 oficio, or any other oath whereby he may be compelled to confess, accuse, or purge himself of 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 sides, and thereupon forms his interlocutory decree or definitive fentence at his own discretion : from which there generally lies an appeal, in the several stages mentioned in a former chapter'; though, if the same 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 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 facraments: 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 • Chap 5:

e Co. Litt. 133.

common

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 fulmen 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 the aid of the ecclesiastical jurisdiction, and kindly lends a [ 102 1 supporting hand to an otherwise tottering authority. Imitating herein the policy of our British ancestors, among whom, according to Caesar *, whoever were interdicted by the Druids from their sacrifices, “ in numero impiorum ac fceleratorum habentur : ab iis omnes decedunt, aditum eorum fermonemque defugiunt, ne quid ex contagione incommodi accipiant: neque iis petentibus jus redditur, neque honos ullus communicatur.”. 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(4), and, which is the worst of all, cannot bring an action, either real or personal, to recover lands or money due to him y. Nor is this the whole: for if, within forty days after the sentence has been published in the church, the offender does not submit 2 Inft. 623

y Litt. § 201. x de bello Gall. 1.6.

(4) In antient times, a person, who by his contempi of the laws and judgments of the church, bad brought upon himself the fentence of excommunication, was thought to be influenced by no religious sentiments, and consequently to be regardless of the obli. gation of an oath ; but as the same degree of reverence is not at present attached to the censures and decrees of the spiritual judge, and as this incapacity of witnesses is a great obstruction to the administration of justice, it ought to be removed by the authority of the legislature.

and

and abide by the fentence 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 significavit ; 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 re-
conciliation certified by the bishop ; upon which another
writ, de excommunicato deliberando, illues out of chancery to
deliver and release him?. This process feems founded on the
charter of separation (so often referred to) of William the
conqueror. “ Si aliquis per fuperbiam elatus ad juflitiam episco-
palem venire noluerit, vocetur femcl, 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 case of subtraction of tithes,
a more summary and expeditious asistance 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

milbehaviour of the ecclesiastical judge by the defend[ 103 ) ant in any suit for tithes, any privy counsellor, or any

two justices of the peace (or, in case of disobedience to a definitive fentence, any two justices of the peace) may commit the party to prison without bail or mainprize, till he enters into a recognizance with sufficient fureties 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 repreifing the infolence of contumacious delinquents, and rescuing their jurisdiction from that contempt, which for want of suffie cient compulsive powers would otherwise be sure to attend it.

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. 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
rs of war, out of the realm, and also of things which touch
“ war within the realm, which cannot be determined or disa
« cuffed by the common law; together with other usages
" and customs to the same 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
'fiation of law: as if a contract be made at Gibralter, the
plaintiff may suppose it made at Northampton; for the loca-
lity, 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, 1. To give relief to such of the nobility and gentry as think themselves aggrieved in matters of honour; and 2. To keep up the distinction of degrees and quality, Whence it follows, that the civil jurisdiction of this court of [ 104 ] chivalry is principally in two points; the redressing injuries of honour, and correcting encroachments in matters of coatarmour, precedency, and other distinctions of families. .

As a court of honour, it is to give satisfaction to all such -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 redressed somewhere. Such, for instance, as calling a man coward, or giving him the lie; for which, as they are productive of no immediate damage to his person or property, no action will lie in the courts at Westminster: and yet they are such injuries as will prompt every man of spirit to demand some honourable amends, which by the antient law of the land was appointed to be given in the court of chivalry”. But modern resolutions have detera year book, 37 Hen. VI. 21. Selden of duels, c. 10. Hal. hif. C. L. 37. VOL. III.

mined,

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