the good of his foul", this made all inteftacies immediately fpiritual caufes, as much as a legacy to pious ufes 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, invefted the church with this privilege. And accordingly in king Stephen's charter it is provided, that the goods of an inteftate ecclefiaftic fhall be diftributed pro falute animae ejus, ecclefiae concilio; which latter words are equivalent to per vifum ecclefiae in the great charter of king John. before-mentioned. And the Danes and Swedes (who received the rudiments of chriftianity and ecclefiaftical difcipline from England about the beginning of the twelfth cenrury) have thence alfo adopted the fpiritual cognizance of inteftacies, teftaments, and legacies P. THIS jurifdi&tion, we have feen, is principally exercised with us in the confiftory courts of every diocesan bishop, and in the prerogative court of the metropolitan, originally; and [ 98 ] in the arches court and court of delegates by way of appeal. It is divifible into three branches; the probate of wills, the granting of administrations, and the fuing for legacies. The two former of which, when no oppofition 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 jurisdiction. 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 administer; this claim and obstruction by the adverfe 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 adminiftration. Subtraction, the withholding or detaining, of legacies is also Si quis baronum feu bominum meorum-pecuniam fuam non dederit vel dare difpofuerit, uxor fua, five liberi, aut pa. rentes et legitimi bomines ejus, eam proanima ejus dividant, ficut eis melius vifum fuerit. (Text. Roffens. c. 34. p. 51.) 7 P Stiernhook, de jure Sucon, 1. 3. c. 8. [ 99 ] ftill more apparently injurious, by depriving the legatees of that right, with which the laws of the land and the will of the deceafed have invested them: aud therefore, as a confequential part of teftamentary jurisdiction, the fpiritual court adminifters redress herein, by compelling the executor to pay them. But in this laft cafe 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 also it's full determination. courts. THESE are the principal injuries, for which the party grieved either muft, or may, seek his remedy in the spiritual But before I entirely difmifs this head, it may not be improper to add a fhort word concerning the method of ́ proceeding in thefe tribunals, with regard to the redress of injuries. Ir muft (in the first place) be acknowleged, to the honour of the spiritual courts, that though they continue to this day to decide many questions which are properly of temporal cognizance, yet juftice is in general so ably and impartially adminiftered 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 arifes from this jurifdiction ftill continuing in the antient channel. And, fhould an alteration be attempted, great confufion 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 procefs in all the ecclefiaftical courts was indeed a masterpiece of papal difcernment, as it made a coalition impracticable between them and the national tribunals, without manifeft inconvenience and hazard. 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 ftudied 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 darkest ignorance, and to monopolize the little science, which then exifted, entirely among the monkifh clergy, were deeprooted principles of papal policy. And, as the bishops of Rome affected in all points to mimic the imperial grandeur, as the fpiritual 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 breaft of a fingle 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 fpiritual 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 such cases a prohibition will be awarded against Warb. alliance. 179. Vol. I. introd. § 1. them. 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 fucceeds the defendant's answer upon oath, when, if he denies or extenuates the charge, they proceed to proofs by witnefies 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 anfwer 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 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 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 last century to be upheld by the fpiritual courts: when the legislature was obliged to interpofe, to teach them a leffon of fimilar moderation. By the ftatute of 13 Car. II. c. 12. it is enacted, that it fhall not be lawful for any bishop or ecclefiaftical judge, to tender or adminifter 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 feveral ftages 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: s2 Roll, Abr. 300. 302. Chap. 5 BUT 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 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 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 ferious light, there are, notwithstanding, many obftinate or profligate men, who would defpife the brutum fulmen of mere ecclefiaftical cenfures, efpecially 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 otherwife tottering authority. Imitating herein the policy of our british ancestors, among whom, according to Cæfar, 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 : 66 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 prebus et legalis homo. He cannot ferve upon juries, cannot be a witnefs in any court (3), and, which is u Co. Litt. 133. * 2 Inft. 623. * de belle Gall, 1. 6. (3) In antient times, a perfon, who by his contempt of the laws and judgments of the church, had brought upon himself the fen tence |