of the people. And therein a judge cannot inform himself in his own chamber, but must do it in open court'. By a style of court a sentence may be pronounced without publishing the witnesses, though such publication was moved for. And such sentence is not null and void, because the party ought to appeal, from the grievance immediately. Thus the style of court makes a law in such cases as are not decided by law. Wherefore we ought not easily to depart from ancient practice, and that which has commonly been observed for law 3. TITLE III. THE ECCLESIASTICAL COURTS WHICH ARE HOLDEN BY Arches. I. FIRST, the Archbishop of Canterbury's Court of Arches. Court of This court used to be holden within the parish church of the blessed Virgin Mary le Bow, in the city of London o. II. For a time the designation of this court was simply, "the 1 Socin. Cons. 36, n. 11.-Ayliffe. 2 Anc. Cons. 53, n. 2.—Ayliffe. 3 Stylus et consuetudo curiarum et locorum singularium, conservanda sunt. Lindwood. lib. iii. tit. 13, v. accipere. Optima legum interpres est consuetudo. Zouch's Elements.-Ed. 4 Called in Latin, Alma Curia Cantuariensis de Arcubus.-Ed. 5 See the origin of this name, in chap. ii. of the Introduction.-Ed. • The Court of Arches is now held by its judge (in his quality of official principal) or by his surrogate, in the common hall of the College of Advocates, within the parish of St. Benedict, near Paul's Wharf, London. But the judge, (as dean of the peculiars) has continued to hold his court within the church of the blessed Virgin Mary le Bow. Both these courts are held on the same day, before twelve o'clock at noon.—Oughton. See the Introduction to this work, chap. ii. and the Appendix, No. I.—Ed. Whenever the word now (hodie, modo, &c.) occurs in the text or notes of Oughton, it must be remembered, that he wrote an hundred years ago; and that, consequently, the word now must have reference to that period, though, in most cases no change has taken place since. The edition from which this translation is made, bears date A.D. 1728, and the work itself we suppose to have been written between the years 1712 and 1715.-Ed. Court of Archbishop's Consistory," as appears from the ancient records of the court1. 3 III. Secondly, the Archbishop of Canterbury's Court of Audience. The place of holding this court was the consistorial chamber within the cathedral church of St. Paul, London'. Prerogative IV. Thirdly, the Archbishop of Canterbury's Prerogative Court. Court. It was, in like manner, holden in the consistorial cham ber, at St. Paul's. 1 See the decrees in the Arches Court, by Archbishop Winchelsey, A.D. 1295, and the decrees of Archbishop Stratford, A.D. 1342.—Oughton. 2 In Latin, Curia Audientiæ Cantuariensis.-Ed. 3 The Latin word is tenetur, applying to the time then present. But it is very evident from consulting Oughton's Introduction, chap. iii. and from the marginal reference, where the terms are, olim habita, that he refers to a period many years previous, when the court used to sit as a separate court of judicature. Now, as Oughton tells us in the above-mentioned Introduction, the court is virtually abolished, as far as relates to general business, no judge of audience having existed for a length of time.-Ed. 4 See the Introduction, chap. iii. § 11.-Oughton. 5 In Latin, Curia Prærogativæ Cantuariensis.—Ed. 6 The Prerogative Court of the archbishop is at present holden in the public hall of the College of Advocates, in the afternoon.-Oughton. 7 Under this head Oughton adds, from MSS. in his possession, the following remarks. The jurisdiction of the official of the Arches remains in full forcé during the vacancy of the metropolitan see of Canterbury. Commissions, citations, and decrees issued before the vacancy, may and ought to be acted upon, by virtue of the judge's authority who decreed them, notwithstanding the avoidance, and during its continuance. But the authority both of the Court of Audience and of the Prerogative Court immediately ceases on the metropolitan see becoming vacant. Neither have the commissions, citations, and decrees of those courts any validity, unless they are renewed in the name of the dean and chapter, to whom, and not to the suffragan bishops, the jurisdiction was adjudged, by Edmund, archbishop of Canterbury, A.D. 1581, to belong of ancient custom, during the avoidance.-Ed. COURT DAYS. TITLE IV. THE DAYS OBSERVED IN THE ECCLESIASTICAL COURTS FOR JUDGMENT 1. I. THE days called in the law dies juridici, are such as are Court days. proper and suitable, and set apart in the law for judicial acts; in which respect they are termed opposites to holidays 2, these being exempt from all judicial acts, and rendering them null and void, if attempted to be executed on such days. II. These dies juridici are reduced to four terms in the year, Terms. each term containing sometimes twelve, fifteen 3, or twenty days; sometimes fewer. TITLE V. DIRECTIONS FOR OPENING THE DIFFERENT ECCLESIAS TICAL COURTS 4. Arches. I. THE Court of Arches used to meet for the dispatch of business Court of in Michaelmas term every year on the day next after the Feast of Michaelthe blessed Virgin and Martyr Faith, i. e. on the 7th day of mas term. 1 This title is taken from Conset, 1. 1. § 2.—Ed. 2 Wesembecy ff. T. de feriis. 1. 1. and c. omnes in fin. Jason in l. 4. n. 3. hoc. tit. spec. d. fer. sect. fin.-Conset. 3 Fifteen is the number in the courts of the Archbishop of York.-Conset. + This article only treats of the commencement of the ecclesiastical terms, or of the first court day in each term. The author has therefore studied to supply the deficiency, by giving a full account, in the Appendix, of all the court days in each term, with reference to the ancient, as well as the modern practice.-Oughton. Hilary term. Easter term. Trinity term. Court of October (unless that day was a holiday): but now it does not commence its sittings till the 23d of the same month. II. The first regular court day in Hilary term was on the day, not being a holiday, next succeeding the Feast of St. Hilary, i. e. the 13th day of January; but now it is not till the day after the feast of Bishop St. Wolstan, i. e. on the 20th day of the same month. III. In Easter term the first general court day is on the Monday fortnight after Easter-day', and is commonly called the court next after the fifteen days of Easter. 2 IV. In Trinity term the custom is to open the court on the day following the Feast of the Holy Trinity: unless that day should happen to be a holiday. V. The Court of Audience was always accustomed to regulate its sittings by the Court of Arches. It used to meet for the dispatch of business every term on the day (if not a holiday) next succeeding that on which the Arches Court opened, in the morning before twelve o'clock. 1 See Appendix, No. VII.—Ed. 2 For example, observes Conset, "In the year 1680, quindenæ Pascha was the first day of May, that being just a fortnight after Easter, and Easter term began that year on the second day of May in this spiritual court (i. e. his ecclesiastical court at York)."-Conset, 1. 1. 2. The ancients commonly included fifteen days (quindena) in the whole solemnity of the Pascha, i. e. the week before Easter Sunday, called by them sometimes the great week, sometimes the holy week, and by us, passion week, and the week following, called Easter week. The one of which was termed Pascha Eravρwopov, the Pascha of the Cross, and the other Pascha Avaσraσiμov, the Pascha of the Resurrection. Suicerus (Thesau. Eccles. tom. i. p. 304, and tom. ii. p. 1014,) will furnish the learned reader with examples of both. See Bingham's Origines Eccles. book xx. chap. v. § 1. -Ed. 3 1. Now on the morning of the day, not being a holiday, next after the opening of the Court of Arches (at the time mentioned above for the former sitting of the Court of Audience), businesses of cautions, or caveats, in the goods of persons deceased, are heard by the judge of the Prerogative Court of Canterbury. 2. And, at the same time, the said judge hears arguments from the advocates on either side, both respecting the fact and the law, touching assignations, to hear his judgment on any incidental question (the act of court being prepared in writing by the proctors respectively), as also that he may decide on the admission or rejection of allegations in writing, and other matters incidentally occurring in suits. 3. At the same time he hears informations on the general merits of a cause Court. VI. After twelve o'clock on the same day, the members of the Prerogative archbishop's Prerogative Court assemble: still with the same proviso, that the day is not a holiday '. fixed. VII. Further than this there are no fixed or determinate days No other on which, more than on others, the above named ecclesiastical court days courts are bound to open for the public prosecution of business 2. They are, however, usually held, with greater or less frequency, after an interval of six, or seven, or eight days, according to circumstances. (Care being taken that informations, as they are called, be duly heard, so as to facilitate the regular discharge and expeditious advance of the proceedings, and thus bring contests to a speedy termination.) VIII. Hence the established usage has been for citations to issue from these courts directing the appearance of the parties cited "at the accustomed hour, on the third (fourth, fifth, or sixth') day, being a court day, after the execution of the citation or on whatever day next succeeding the judge shall preside in his court for the administration of justice "." both touching the law and the facts, previous to the delivery of his definitive sentence in the same. 4. This, however, is by no means the regular time of holding the Prerogative Court. Neither is the judge then properly said to occupy his judicial seat, nor is this properly esteemed a court, (unless with the consent of the parties interested, or their proctors), seeing it is in fact only a meeting in the intervening period between two court days, to expedite business by giving informations. In other words, it is for the purpose of the judge's hearing only and not deciding.-Oughton. 1 Informations being received by the judge of the Prerogative Court, and caveats heard, extrajudicially, in the morning before twelve o'clock. In the afternoon of the same day, the court sits regularly for the dispatch of business. -Oughton. 2 See the Appendix, Numbers 3, 4, 5.—Ed. 3 These days are called dies incerti, only in respect of the time when the defendant must appear, the other necessary and constitutive parts of the citation, scil. “de quo, et an, et cui extiturus sit," being complete.-Conset, 1. 1. 2. 4 Sometimes the eighth or tenth day, or even a later day, is named; depending upon the distance of the place, where the parties cited live, from the court.-Oughton. "To appear 5 In modern practice the style of the summons runs thus: (at such a place) on the third (or some other) day, after the citation has been duly served upon the parties to whom it is addressed, if that day be a court day, otherwise on the first court day next following, at the accustomed hour of holding the said court for the administration of justice.— Oughton. Ꭰ |