judge before their depositions could be unsealed and read. In appellate causes the same inhibition issued to the judge a quo, or inferior ordinary, and to the party respondent, enjoining them to forbear innovating or attempting anything to the prejudice of the appellant, and of his appeal, &c. In a word, the formal instruments and pleadings are still rendered in the terms prescribed by the ancient practice of the Courts of Rome.*

But a few remarks upon the general process and formulare of the Ecclesiastical Courts may not be out of place here. The offender was summoned into judgment by letters of citation under the seal of the ordinary; and on his appearance the libel, or the articles containing the accusation, were brought in and proffered to him. If the latter were unexceptionable in point of law or relevancy, they were admitted to prove, and the judge then called upon the accused to give a general answer or issue, in the affirmative or negative, to the charge of the accuser. This was an imitation of the litis contestatio of the civil law, and was simply an averment in the negative or affirmative of the truth or falsehood of the charge. If a denial were given and the suit contested negatively, a sworn personal answer was then exacted from the defendant, though the plea might contain criminal imputations, and he should consequently, by a full and sincere response, if guilty, confirm the accusation of his enemy. If the negative issue were followed up by an unqualified and consistent denial in the personal answer of the defendant, or party cited (as he is termed in the technical language of the Ecclesiastical Courts), the plaintiff or promoter would then be obliged to produce witnesses in support of his case, who were accordingly sworn in open court, in the presence of the adverse party, the oath of testimony being administered to them by the judge. The latter afterwards himself strictly examined the witnesses in a secret chamber, foribus clausis, assisted by his registrar or ac

*Of this any person may easily convince himself, and for that purpose we refer him to the Formularium Variarum Commissionum, Articulorum, Exceptionum, Interrogatoriorum, et Petitionum, Sententiarum et Appellationum, &c. Romæ, 1602.

This was prohibited by 13 Car. 2, c.

tuary, who faithfully recorded in writing their several depositions. The same process was adopted in regard to the sworn answers of the defendant.‡

The defendant of course had the liberty of counterpleading, and the same ground was then gone over by him. When each party considered his case to be sufficiently made out to enable him to bring it before the court, the original cause was concluded or wound up, and the judge decreed publication to pass on the sayings or depositions of the witnesses. Informations were next taken, i.e. the evidence was read and its credibility and sufficiency debated upon by the advocates of each party in open court, and the judge finally determined the question by a definitive sentence in writing, or by a verbal interlocutory decree.

This is but a slight sketch of the strictly ancient practice. But I have said enough to shew that the same plan is still pursued, except in a few instances, where the express provisions of the legislature have innovated on its principles, or an idea of convenience has effected some inconsiderable alteration.

The scheme of practice adopted by the Ecclesiastical Court consists of a series of interlocutory orders, technically called assignations, which are the gradual and progressive steps of the cause. These are the same in their character, and also bear the same appellations in the English courts, as they now do or formerly did at the Supreme Court of Rome.

The constitution of the Ecclesiastical Courts was in all respects superior to that of the municipal tribunals. Deriving the forms of their judicial proceedings from the refined and ancient source I have before intimated, they at the same time adopted the custom of a regularly admitted and stationary bar of advocates; and, as a further assistance to the illiterate and inexperienced client, a certain number of authorised ministers of the court, denominated procuratores or proctors,

12, § 4. Our historians invariably call it the oath ex officio, as if the juramentum calumniæ or malitiæ, the juramentum suppletorum, or any other oath known to the canon or civil law, were not equally an ex officio oath.

Oughton, Ordo Judicior. de causis, tit. 4, s. 8, et in Nota,

were ordained, who might guide him through the difficulties and niceties of his suit, and legally represent him in the presence of the court.* The latter privilege was long unknown to the suitor at common law.

But there is little doubt that the establishment of the Ecclesiastical Courts gave a higher tone and character to the general judicature of the country. Their grave and erudite system of practice, and their precise and accurate method of taking evidence, formed a striking contrast to the rude and summary proceeding of a trial purpais at that period. The preponderance of relative merit must obviously have been in favour of the tribunals of the Church. The foreign jurists, who presided over the infant consistories, and their English successors, were all men of the highest learning in their department; and their efforts, of which one result was the Court of Chancery, produced in the sequel the most beneficial consequences for the English law and constitution, by imparting to the theory of both more refined and extended principles.

own

But the weak point of the ecclesiastical jurisdiction has always consisted in its inability to enforce its decrees. This was originally owing to a reluctant delicacy of feeling on the part of the Church itself, but it has been maintained up to the present time by the unnecessary jealousy of the Legislature, and of the lay judges of the Crown. The concluding sections of the statute, which refer to this subject, are devoted to applying a remedy for the contumacy of offenders. They are as follows:† "If any person elated by pride will not come to the Bishop's justice, (ad justitiam episcopalem,) let him be called once, twice, and thrice, and if he will not then come to make

*The Constitutions of Othobon contain many curious regulations respecting the appointment of Proctors, tit. 23, de officio procuratorum. See also a Constitution of Peccham, in Lynd. lib. 1, tit. 18.

Id. Si vero aliquis per superbiam elatus ad justitiam episcopalem venire non voluerit, vocetur semel et secundo et tertio; quod si nec sic ad emendationem venerit excommunicatur; et si opus fuerit ad hoc vindicandum, fortitudo et justitia re is vel vicecomitis adhibeatur.

compensation (ad emendationem) let him be excommunicated. And, if need shall be, let the power and justice of the king or his sheriff be employed in vindicating this."

Excommunication

was the only

weapon which the Church possessed, and we may easily conceive that to a hardened offender it could have had few terrors, as the penal result lay in so remote a perspective. This species. of spiritual outlawry had, consequently, been found to fail in its desired effect on many occasions when the pecuniary claims of the Church were to be enforced, or her correctional orders obeyed, and she had felt herself, though with aversion, compelled to resort to the fortifying arm of the secular law. This invocatio brachii secularis, as the canonists quaintly termed it, was the only resource that lay in her power; for the acceptance of an authority of equal strength and sternness with the ordinary secular jurisdiction, though it were the voluntary and unsolicited offer of the princes who were entitled to confer it, would in her apprehension have exposed her to the imputation of having abandoned the sacred precepts of her divine Founder, whose kingdom had been by him declared to be not of this world. This feebleness of the ecclesiastical jurisdiction was therefore originally of its own choosing.

The epoch of the first application of this nature is uncertain, but it was undoubtedly early, and the temporal power appears to have been in all ages subsequent to the establishment of Christianity attentive to the wants of the Church in this respect, and ready to afford aid of this limited kind on all occasions of her invocation.

But even when custom had familiarized it in the minds of men, and the highest authorities of the Church had sanctioned it by their express approval and practice, there were many ecclesiastics to whose rigid consciences this resort to the secular arm was a source of doubt and anxiety, as an inferential breach of the canon whenever blood followed its active and strenuous interference. We have an instance where a pope condescended to remove scruples of this kind which had arisen in the mind of a well-disposed but timid churchman. Clement III. in a decretal epistle addressed to a bishop

(whose name and diocese are suppressed by the compiler,) in order to silence the doubts which the other appears to have entertained and expressed on the subject, urges that "if the king (to whom the sword of justice is committed to uphold the good as well as to punish the bad) has directed upon the rebels of ecclesiastic authority the power so entrusted to him, on the complaint of the Church, the consequences of such contumacy must alone be imputed to their stubbornness or guilt."*

The Conqueror provided for the English Ecclesiastical Courts the same relief and support which were allowed to them on the continent.

The next section of the act contains a remarkable enactment," He who, on being called, has refused to come to the justice of the bishop, (ad justiciam episcopi,) for each calling shall amend the episcopal law."+ This alludes, without doubt, to the wite of the Anglo-Saxon æra, for ofersewennisse, which the defendant incurred by contumaciously absenting himself from the court of the judge by whose summons he was convened. The next section is as follows: "This also I forbid, and by my authority prohibit, that any sheriff, bailiff, or minister of the king, nor any layman, intermeddle in the laws which belong to the bishop, nor any layman bring another man without justice to trial before the bishop."§

These enactments are only intended as a piece of advice to each court to mind its own jurisdiction, without

*Decret. Greg. 9. Hb. 5, tit. 12, c. 21. "Si te hujusmodi querimoniam simpliciter deponente rex (cui ad bonorum laudem, vindictam vero malorum gladius est commissus,) in eosdem rebelles traditam sibi exercuerit potestatem, eorum erit duritiæ aut malitiæ imputandum."

+ "Ille autem qui vocatus ad justitiam episcopi venire noluit, pro unaquaque vocatione legem episcopalem emendabit."

Spelman's Codex, p. 349, Laus Hen. I. c. 24, 81.

§ Id. "Hocetiam defendo et mea authoritate interdico ne ullus vicecomes aut prepositus aut minister regis, nec aliquis laicus homo, de legibus quæ ad episcopum pertinent, se intromittat, nec aliquis laicus homo alium hominem sine justitia episcopi ad judicium adducat."

encroaching on the province of the other, and from them was afterwards deduced the practice of prohibitions.

Another section concludes the ordinance, Judgment shall be given (perhaps it should rather be rendered trial shall be held) in no place but the episcopal seat, or in that place which the bishop shall have appointed for the purpose." This last sentence is hardly more than a repetition of part of the aforegoing provisions. Though this ordinance effected a considerable change in the legal constitution of the country, and deprived the municipal judicature of a portion of its seemingly former occupation and employment, yet it must have been in no degree a source of regret to the Norman lawyers who now presided over the English courts, as they could hardly feel any disinclination to relinquish the cognizance of matters with the study of which they were totally unfamiliar, as such subjects had formed no part of their previous legal discipline or training.

The same extent of jurisdiction which existed on the continent would appear to have been transplanted, without curtailment, into this country. Independently of the entire control over the peculiar affairs of the Church, and of all ecclesiastic structures, the ordinary was the judge who signified to the king's justices the fact of a marriage and the legitimacy of a birth. He pronounced a sentence of divorce between married parties, and determined the validity of a will or decreed payment of a legacy. These and other points occur in the early common-law records as admitted portions of the jurisdiction of the Church. In addition to this she afterwards acquired the undisputed management of tithe suits, and a complete power over the personal estates of all persons dying intestate. Doctors' Commons. H. C. C.

(To be continued.)

|| Id. "Judicium vero in nullo loco portetur nisi in episcopali sede aut in illo loco quem ad hoc episcopus constituerit." The expression " portare judicium" occurs in Domesday, Lincoln. 336. "Sed his jurantibus contradicit Vluiet, et offert se portaturum judicium quod non ita est sicuti dicunt."

Though I have known some dan. gers and distresses," replied Arabella gravely, "yet I did not imagine myself such a mirror of calamity as could not be seen without concern. If my life has not been eminently fortunate, it has yet escaped the great evils of persecution, captivity, shipwrecks, and dangers to which many ladies far more illustrious both by birth and merit than myself have been exposed. And indeed, though I have sometimes raised envy, or possibly incurred hatred, yet I have no reason to believe I was ever beheld with pity before."

The Doctor saw he had not introduced his discourse in the most acceptable manner; but it was too late to repent.

"Let me not, Madam," said he, "be censured before I have fully explained my sentiments.

That you

have been envied, I can readily believe for who that gives way to natural passions has not reason to envy the Lady Arabella? But that

you have been hated, I am indeed less willing to think, though I know how easily the greater part of mankind hate those by whom they are excelled."

"If the misery of my condition," replied Arabella, "has been able to excite that melancholy your first words seemed to imply, flattery will contribute very little towards the improvement of it. Nor do I expect from the severity of the sacerdotal character any of those praises which I hear perhaps with too much pleasure from the rest of the world. Having been so lately on the brink of that state, in which all distinctions but that of good

ness are destroyed, I have not recovered so much levity but that I would yet rather hear instructions than compliments. If therefore you have observed in me any dangerous tenets, corrupt passions, or criminal desires, I conjure you discover me to myself. Let no false civility restrain your admonitions. Let me know this evil which can strike a good man with horror, and which I dread the more, as I do not feel it. I cannot suppose that a man of your order would be alarmed at any other misery than guilt: nor will I think so meanly of him whose direction I have intreated as to imagine he can think virtue unhappy, however overwhelmed by disasters or oppression. Keep me therefore no longer in suspense: I expect you will exert the authority of your function, and I promise you, on my part, sincerity and submission.”

The good man was now completely embarrassed; he saw his meaning mistaken, but was afraid to explain it, lest he should seem to pay court by a cowardly retraction : he therefore paused a little, and Arabella supposed he was studying for such expressions as might convey censure without offence.

Sir," said she, "if you are not yet satisfied of my willingness to hear your reproofs, let me evince my docility by intreating you to consider yourself as dispensed from all ceremony upon this occasion."

"Your imaginations, Madam," replied the Doctor, are too quick for language; you conjecture too soon what you do not wait to hear, and reason upon suppositions which cannot be allowed you. When I mentioned my reflections upon human misery, I was far from concluding your ladyship miserable, compared with the rest of mankind; and, though contemplating the abstracted idea of possible felicity, I thought that even you might be produced as an instance that it is not attainable in this world. I did not impute the imperfection of your state to wickedness, but intended to observe, that, though even virtue be added to external advantages, there will yet be something wanting to happiness. Whoever sees you, Madam, will immediately say, that nothing can hinder you from being the happiest