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 afferted the doctrines of judicial as well as civil liberty) continued till the middle of the laft century to be upheld by the spiritual courts: when the legislature was obliged to interpose, to teach them a leffon of similar moderation. By the [101] ftatute of 13 Car. II. c. 12. it is enacted, that it shall not be lawful for any bishop or ecclefiaftical judge, to tender or administer 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 censure 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 discretion: from which there generally lies an appeal, in the several stages mentioned in a former chapter; though, if the fame be not appealed from in fifteen days, it is final, by the statute 25 Hen. VIII. C. 19.

Bur 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 described" 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 alfo from the company of all christians. But, if the judge of any fpiritual 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.

Co. Litt. 133

common

common law, and he is also liable to be indicted at the suit

of the king".

HEAVY as the penalty of excommunication is, confidered in a serious light, there are, notwithstanding, many obftinate or profligate men, who would defpife the brutum fulmen of mere ecclefiaftical cenfures, especially 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 1 fupporting hand to an otherwise tottering authority. Imitating herein the policy of our British ancestors, among whom, according to Caefar, 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 : "neque iis petentibus jus redditur, neque honos ullus communica"tur." And fo with us by the common law an excommunicated perfon is difabled 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 witnefs in any court (4), and, which is the worst of all, cannot bring an action, either real or perfonal, to recover lands or money due to him. Nor is this the whole for if, within forty days after the sentence has been published in the church, the offender does not submit y Litt. §201.

w 2 Inft. 623.

* de bello Gall. 1.6.

(4) In antient times, a perfon, who by his contempt of the laws and judgments of the church, had brought upon himself the fentence of excommunication, was thought to be influenced by no religious fentiments, and confequently to be regardless of the obli gation of an oath; but as the fame degree of reverence is not at prefent attached to the cenfures 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 she-legiflature.

and

and abide by the fentence of the fpiritual court, the bishop may certify fuch contempt to the king in chancery. Upon which there iffues out, a writ to the sheriff of the county, called, from the bifhop's certificate, a fignificavit; or from it's effects a writ de excommunicato capiendo: and the sheriff hall 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; upon which another writ, de excommunicato deliberando, iffues out of chancery to deliver and release him2. This procefs feemis founded on the charter of separation (so often referred to) of William the conqueror. "Si aliquis per fuperbiam elatus ad juftitiam epifco"palem venire noluerit, vocetur femel, fecundo, et tertio: quod fi nec fic ad emendationem venerit, excommunicetur; et, fi opus fuerit, ad hoc vindicandum fortitudo et juftitia regis five vice"comitis adhibeatur." And in cafe of fubtraction of tithes, a more fummary and expeditious affiftance is given by the ftatutes of 27 Hen. VIII. c. 20. and 32 Hen. VIII. c. 7. which enact, that upon complaint of any contempt or mifbehaviour of the ecclefiaftical judge by the defend[103] ant in any fuit for tithes, any privy counfellor, or any two justices of the peace (or, in cafe of disobedience to a definitive sentence, any two juftices of the peace) may commit the party to prifon without bail or mainprize, till he enters into a recognizance with fufficient 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 ecclefiaftical jurisdiction, may serve to refute that groundless notion which fome 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 exceffes of thefe inferior courts, and keeping them within their legal bounds; but, on the other hand, they afford them a parental affiftance in repreffing the infolence of contumacious delinquents, and rescuing their jurisdiction from that contempt, which for want of susficient compulfive powers would otherwise be fure to attend it.

2 F. N. B. 6z.

II. I AM

II. I AM next to confider the injuries cognizable in the court military, or court of chivalry. The jurifdiction of which is declared by ftatute 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 alfo of things which touch "war within the realm, which cannot be determined or dif"cuffed by the common law; together with other usages "and customs to the fame matters appertaining." So that wherever the common law can give redress, this court hath no jurifdiction; which has thrown it entirely out of ufe 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 Gibralter, the plaintiff may fuppofe it made at Northampton; for the locality, or place of making it, is of no confequence with regard to the validity of the contract.

THE words, "other usages and cuftoms," support the claim of this court, 1. To give relief to fuch of the nobility and gentry as think themselves aggrieved in matters of honour; and 2. To keep up the diftinction 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 diftinctions of families.

As a court of honour, it is to give fatisfaction to all such as are aggrieved in that point; a point of a nature fo nice and delicate, that it's wrongs and injuries efcape the notice of the common law, and yet are fit to be redreffed fomewhere. Such, for inftance, as calling a man coward, or giving him the lie; for which, as they are productive of no immediate damage to his perfon or property, no action will lie in the courts at Westminster: and yet they are fuch injuries as will prompt every man of spirit to demand fome honourable amends, which by the antient law of the land was appointed to be given in the court of chivalry. But modern refolutions have deterYear book, 37 Hen. VI. 21. Se'den of due's, c. 10. Hal. hift. C. L. 37. VOL. III. mined,

I

mined, that how much foever fuch a jurisdiction may be expedient, yet no action for words will at prefent lie therein ". And it hath always been moft clearly holden, that as this court cannot meddle with any thing determinable by the common law, it therefore can give no pecuniary fatisfaction or damages; inafmuch as the quantity and determination thereof is ever of common law cognizance. And therefore this court of chivalry can at moft only order reparation in point of honour; as, to compel the defendant mendacium fibi ipfi imponere, or to take the lie that he has given upon himfelf, or to make such other submission as the laws of honour may required. Neither can this court, as to the point of reparation in honour, hold plea of any fuch 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 it's civil jurisdiction, the redreffing of incroachments and ufurpations in matters of heraldry and coat-armour: it is the business of this court, according to fir Matthew Hale, to adjust the right of armorial enfigns, bearings, crests, supporters, pennons, &c; and also rights of place or precedence, where the king's patent or act of parliament (which cannot be overruled by this court) have not already determined it.

THE proceedings in this court are by petition, in a fummary way; and the trial not by a jury of twelve men, but by witneffes, or by combat. But as it cannot imprison, not being a court of record, and as by the refolutions of the fuperior courts it is now confined to fo narrow and reftrained a jurisdiction, it has fallen into contempt and difufe. The marshalling of coat-armour, which was formerly the pride and study of all the best families in the kingdom, is now