CHAPTER XIII. DEPARTMENTS OF THE PROFESSION— ECCLESIASTICAL DEPARTMENT. : THE task of describing this important but anomalous department of our legal system, is peculiarly difficult and disheartening for no one can tell whether the existing fabric of ecclesiastical jurisdiction, notwithstanding some considerable alterations recently effected in it, may not undergo an entire reconstruction, even before the present work shall have quitted its author's hands. Evils and inconveniences are universally admitted to exist in the present administration of ecclesiastical law; but the difficulty of dealing with them, would seem to be almost invincible. The main feature of the measures (as we shall presently see more in detail) which have been proposed by Parliament only to be defeated, was the abolition of a great number of local ecclesiastical jurisdictions, and the transference of the principal business, hitherto transacted in them, to the Courts at Doctors' Commons, in London. To effect this object, which was recommended in 1831 by the eminent members* of the Commission which had been appointed by the Crown to inquire into the practice and jurisdiction of the ecclesiastical courts in Eng The Archbishop of Canterbury, the Bishops of London, Durham, Lincoln, St. Asaph, and Exeter; Lords Tenterden and Wynford; Sir N. C. Tindal, Sir W. Alexander, Sir J. Nicholl, Sir C. Robinson, Sir H. Jenner, Sir C. E. Carrington, Dr. Lushington, and Mr. Cutler Fergusson. Many of them are now (1845) dead. land and Wales, all the energies of successive governments, without regard to party, have been put into requisition, down to the year 1845, but in vain: and they have admitted that they could not withstand the strength of local interest arrayed against them. Another attempt has just been made (26th May, 1845) by Lord Cottenham, with the cordial assent of the Lord Chancellor (Lyndhurst) to carry into effect the recommendations of the Commissioners but with what success remains to be seen. Whatever may be the result of these attempts, it may be as well to bear in mind an observation of Blackstone-that "the boundaries of the ecclesiastical tribunals, especially those of the superior kind, 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 which has now prevailed for some centuries.” * Under these circumstances, we shall content ourselves with a sketch of the existing system, principally relying upon the report of the above-mentioned Commissioners, as far as the machinery and practical details of that system are concerned; but indicating fully and distinctly the principles on which ecclesiastical law is based, for the purpose not only of giving information to those who may feel disposed to select that particular walk of the profession, but of demonstrating to those who may choose any of the other departments already reviewed, the necessity of acquiring correct general notions on the subject now under examination. The very peculiar position, in our municipal system, of the civil and *3 Bla. Com. 99. canon law, as administered in the courts which we are now to consider, makes it equally incumbent on civilians and common lawyers, to become acquainted with each other's provinces. "Those gentlemen," says Blackstone,* "who intend to practise the civil and ecclesiastical laws, in the spiritual and maritime courts of this country, are, of all men, (next to common lawyers), the most indispensably obliged to apply themselves seriously to the study of our municipal laws. For the civil and canon laws, considered with respect to any intrinsic obligation, have no force or authority in this kingdom-and are no more binding in England, than our laws at Rome. But as far as these foreign laws, on account of some peculiar propriety, have, in some particular cases, and in some particular courts, been introduced, and allowed by our laws, so far they apply, and no further; their authority being wholly founded upon that permission and adoption. * * * * Wherefore, on all points in which the different systems depart from each other, the LAW OF THE LAND takes place of the law of Rome, whether ancient or modern, whether Imperial or Pontifical. And in those of our English courts wherein a reception has been allowed to the civil and canon laws, if either they exceed the bounds of that reception, by extending themselves to other matters than are permitted to them; or if such courts proceed according to the decisions of those laws, in cases wherein it is controlled by the law of the land-the common law, in either instance, both may, and frequently does, probibit and annul their proceedings: and it will not be a sufficient excuse for them to tell the King's Courts at Westminster, 1 Bla. Com. pp. 14, et seq. that their practice is warranted by the laws of Justinian or Gregory, or is conformable to the decrees of the Rota, or imperial chamber. For this reason it becomes necessary for every civilian and canonist, who would act with safety as a judge, or with prudence and reputation as an advocate, to know in what cases, and how far, the English laws have given sanction to the Roman; in what points the latter are rejected; and when they are so intermixed and blended together, as to form certain supplemental parts of the common law of England, by the title of the King's Maritime, the King's Military, and the King's Ecclesiastical Law. The propriety of such an inquiry, the University of Oxford has, for more than a century, so thoroughly seen, that in her statutes she appoints that one of the three questions to be annually discussed at the Act, by the jurist-inceptors, shall relate to the common law-subjoining this reason:-"Quia juris civilis studiosos decet haud imperitos esse juri municipalis, et differentias exteri patriique juris rectas habere:" and the statutes of the University of Cambridge speak expressly to the same effect. "Doctor legum mox a doctoratu dabit operam legibus Angliæ, ut non sit imperitus earum legum quas habet sua patria, et differentias exteri patriique juris noscat."* Similar reasons may be assigned for requiring the common lawyer to be acquainted with the principles and general method of procedure in the ecclesiastical courts. How can he pronounce any particular act done by them to be an excess of jurisdiction, if he know not precisely the nature and extent of the action permitted to them by the common law? And there are certain con * Stat. Eliz. R. c. 14; Cowel, Instit. in Proëmio. siderations of a practical kind, alluded to in the eighth chapter of this work, tending to the same result, and requiring an expert practitioner to exhibit a knowledge of all these rights which can be either exclusively, or, at all events, most beneficially enforced, in the ecclesiastical tribunals. It is true, however, that some of the latter reasons may be diminished in number, provided the contemplated change be carried into effect, with reference to the transfer of the ecclesiastical jurisdiction in tithe cases to the Court of Chancery, and the entire abolition of the criminal jurisdiction of the ecclesiastical courts. The Ecclesiastical Law, says Dr. Burn,* is compounded of these four main ingredients, the Civil law, the Canon law, the Common law, and the Statute law. Where these laws do interfere with and cross each other, the order of preference is this: the Civil law submitteth to the Canon law both of these to the Common law and all the three to the Statute law. So that from any one or more of these, without all of them together, or from all three together without attending to their comparative obligation, it is not possible to exhibit any distinct prospect of the English Ecclesiastical Constitution. : It would be superfluous to enter into any detailed account of the constituent parts of the civil law; but it will be attempted to offer a brief and distinct indication of its principal features.-Its origin is to be traced to the period of abolishing the regal government at Rome, and substituting for it the Republic. Sixteen years after the expulsion of the kings, three learned Romans were sent into Greece to collect the laws of the Athenian 1 Burn. Eccles. Law, Pref. p. xi. |