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suing for legacies. The two former of which, when no opposition is made, are granted merely ex officio et debito justitiae, 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 of testamentary jurisdiction, the spiritual court administers redress herein, by compelling the executor to pay them. But in this last case 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 to 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 its full determination (13).

These are the principal injuries for which the party grieved either must, or may, seek his remedy in the spiritual 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 card to the redress of injuries.

It must (in the first place) be acknowledged, to the honour of the spiritual courts, that though they continue to this *day to de- [*99 ] cide 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 ancient channel. And, should an alteration be attempted, great confusion 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 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 its 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 dissensions between the clergy and the laity of England, have formerly (7) 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

(9) Book I. introd. 91.

(13) In addition to the relief before the sur- mon law courts if there be assets to pay him, rogate or a court of equity, in New York, af. and he first execute with sureties a bond of ter a year from the granting of letters tesla- indemnity to the executor. (2 R. S. 114, 910, mentary or of administration, the legatee or &c.) next of kin may sue the executor in the com

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 mopkish clergy, were deep-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 are dour a method of judicial proceedings, which was carried on in a language

unknown to the bulk of the people, which banished the interven[*100] tion of a jury (that bulwark of Gothic liberty) which placed an

arbitrary power of decision in the breast of a single man. 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 usages, 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 sound policy the ecclesiastical process ought in every state to conform (r) (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 (s). But, under these restrictions, their ordinary course of proceeding is (14); first, by citatio thro 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 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 imposed on it by its clerical chancellors, and asserted the doctrines of judicial as well as civil liberty), continued to 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 mode[*101] ration. By the estatute of 13 Car. II. c. 12. it is enacted, that

it shall not be lawful for any bishop or ecclesiastical judge, to ten(r) Warb. alliance, 179.

(s) 2 Roll. Abr. 300. 302. (14) The recent act, 53 Geo. III. c. 127. pro- have the same force as the ancient writ. hibits excommunication, and the writ de ex. There is a similar act as to Ireland. 54 Geo. communicato capiendo as a mode of enforcing III. c. 68. In other cases, not of disobedience performance or obedience to ecclesiastical or- to the orders and decrees of the court, there ders and decrees ; and instead of the sentence may be excommunication, and a writ de exof excommunication in those cases, the court communicato capiendo as heretofore. In the is to pronounce the defendant contumacious, proceedings under this statute, it must clearly and the ecclesiastical judge is to send his sig- appear, that the ecclesiastical court had juris. nificavit in the prescribed form to the chancery, diction, and that the form of proceedings has from which a writ de contumace capiendo is to been duly observed. 5 Bar. &. Al. 791, 3 issue in the prescribed form, and which is to Dowl. &'R. 570. ante 87. note 1.

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der or administer to any person whatsoever, the oath usually called the oath er officio, 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 sentence at his own discretion : from which there generally lies an appeal, in the several stages mentioned in a former chapter (t); 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 (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 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, fou 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 sup- [*102] porting hand to an otherwise tottering authority. Imitating herein the policy of our British ancestors, among whom, according to Cæsar (1), whoever were interdicted by the Druids from their sacrifices,“ in numero impiorum ac sceleratorum habentur: ab iis omnes decedunt, aditum eorum sermonemque 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 can. not serve upon juries, cannot be a witness in any court, 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 and abide by the sentence 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 certificates, a significavit; or from its 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 reconciliation certified by the bishop; under which another writ, de excommunicato deliberando, issues out of chancery to deliver and release him (z) (15). This



(4) Chap. 5.
(5) Co Litt. 133.
(w) 2 Inst. 623.

(*) de bello Gall. l. 6.
(y) Litt. 6 201.
(3) F.N. B. 62.

(15) See alteration by statute 53 Geo. III. c. 127. ante, note 14. p. 100. VOL. II.


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process seems founded on the charter of separation (so often referred to) of William the Conqueror. “Si aliquis per superbiam elatus ad justitiam episcopalem venire noluerit, vocetur semel, secundo, et tertio : quod si nec ad emendationem venerit, excommuniceter; et, si opus fuerit, ad hoc vindicandum fortitudo et justitia regis sive vicecomitis adhibeatur.” And in case of subtraction of tithes, a more summary and expeditious assistance is given by the statutes of 27 Hen. VIII. c. 20. and 32 Hen. VIII. c. 7. which enact, that upor complaint of any contempt or misbehaviour of the ecclesiastical

judge by the defendant in any suit for tithes, any privy counsel[*103] lor, or any* two justices of the peace (or, in case of disobedience

to a definitive sentence, any two justices of the peace), may commit the party to prison without bail or mainprize, till he enters into a recognizance with sufficient sureties 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 at 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 repressing the insolence of contumacious delinquents, and rescuing their jurisdiction from that contempt, which for want of sufficient compulsive powers would otherwise be sure to attend it (16).

II. I am next to consider the injuries cognizable in the court military, or court of chivalry (17). 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 also of things which touch war within the realm, which cannot be determined or discussed 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 fiction of law : as if a contract be made at Gibraltar, the plaintiff may suppose it made at Northampton ; for the locality, 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 them

selves aggrieved in matters of honour; and 2. To keep up the dis[104] tinction of degrees and quality. Whence it follows, that the civil

jurisdiction of this court of chivalry is principally in two points ; the redressing injuries of honour, and correcting encroachments in matters of coat-armour, 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 its wrongs

(16) In the ecclesiastical courts the maxim in the spiritnal courts for defamation after six is, that nullum tempus occurrit ecclesiæ, or that months; or for fornication or incontinence, or there is no limitation to a prosecution for a for striking or brawling in a church or churchspiritual offence; and it was thought a great yard, after eight months; and that, in no case, grievance, that the peace of families might be parties who had intermarried should be prosedisturbed by a prosecution for a crime of in- cuted for their previous fornication. continence committed many years before ; it (17) There being no titles of nobility in the was therefore enacted by the 27 Geo. III. c. U. s. there is no such court here. 44. that no prosecution should be commenced

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and injuries escape the notice of the common law, and yet are fit to be redressed somewhere. · Such, for instance as calling a man a 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 ancient law of the land was appointed to be given in the court of chivalry (a). But modern resolutions have determined, that how much soever such a jurisdiction may be expedient, yet no action for words will at present lie therein (6). And it haih always been most clearly holden (c), that as this court connot meddle with any thing determinable by the common law, it therefore can give no pecuniary satisfaction or damages, inasmuch as the quantity and determination thereof is ever of common law cognizance. And therefore this court of chivalry can at most only order reparation in point of honour; as, to compel the defendant mendacium sibi ipsi imponere, or to take the lie that he has given upon himself, or to make such other submission as the laws of honour may require (d). Neither can this court, as to the point of reparation in honour, hold plea of any such word or thing, wherein the party is relievable by the courts of common law. As if a man gives another a blow, or calls him thief or murderer; for in both these cases the common law has pointed out his proper remedy by action.

* As to the other point of its civil jurisdiction, the redressing [*105] of encroachments and usurpations in matters of heraldry and coat-armour: it is the business of this court, according to sir Matthew Hale, to adjust the right of armorial ensigns, bearings, crests, supporters, pennons, fc.; and also rights of place or precedence, where the king's patent or act of parliament (which cannot be over-ruled by this court) have not already determined it.

'The proceedings in this court are by petition, in a summary way; and the trial not by a jury of twelve men, but by witnesses, or by combat (e). But as it cannot imprison, not being a court of record, and as by the resolutions of the superior courts it is now confined to so narrow and restrained a jurisdiction, it has fallen into contempt and disuse. The marshalling of coat-armour, which was formerly the pride and study of all the best families in the kingdom, is now greatly disregarded ; and has fallen into the hands of certain officers an attendants upon this court, called heralds, who consider it only as a matter of lucre, and not of justice : whereby such falsity and confusion have crept into their reeords, (which ought to be the standing evidence of families, descents, and coat-armour), that, though formerly some credit has been paid to their testimony, now even their common seal will not be received as evidence in any court of justice in the kingdom (f). But their original visitation books, compiled when progresses were solemnly and regularly made into every part of the kingdom, to inquire into the state of families, and to register such marriages and descents as were verified to them upon oath, are allowed to be good evidence of pedigrees (g). And it is much to be wished, that this practice of visitation at certain periods were revived ; for the failure of inquisitions post mortem, by the abolition of military tenures, combined with the negligence of the heralds in omitting their usual progresses, has rendered the proof

(c) Year-book, 37 Hen. VI. 21. Selden of duels, e. 10. Hal. hist. c. L. 37. (6) Salk. 533.7 Mod. 125. 2 Hawk. P. C. 11. (c) Hal. hist. C. L. 37.

(g) Comb. 63.

(d) I Roll. Abr. 128.
(c) Co. Litt. 261.
(f) 2 Roll. Abr. 686. 2 Jon. 224

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