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of the church.1 The distinction between these two degrees of censure seems to have become obsolete in England. Here we must not omit to observe, that excommunicated persons are, by the canons, not entitled to Christian burial.»
Upon the principle that the church, having the power to inflict these penalties collectively upon offenders, she must also possess that of inflicting a portion of them,— the greater power including the less,—there arose the other less severe censures, besides the lesser excommunication,—namely, interdict, suspension, and degradation, which are all partial exclusions from Christian privileges, the two last of which can only be inflicted upon ecclesiastics; and we can here do no more than define each of them separately. 1. Interdict is an ecclesiastical censure prohibiting the administration of divine service and ceremonies either to particular persons, or in particular places, or both.3 This process is obsolete in England. 2. Suspension is a censure whereby ecclesiastical persons are forbidden to exercise their office, or take the profit of their benefices; or they are wholly or partially prohibited for a certain time, in both of them. Hence there is sutpensio ab officio, or suspensio a beneficio, and ab officio et beneficio.* There is also a suspension to which the laity are subject; that is to say, suspension ab ingressu ecclesia, or from participation in the services of the church, which is used, as in the canon-law, for the lesser excommunication.5 3. Degradation, or deposition, is the perpetual
1 Van Espen, par. iii. tit. xi. c. iv. v.; and also Van Espen, Tractat. de Censuris, c. i. - Canon lxviii. 3 PhiU. 273.
3 Lyndwood, 320. But see Van Espen, par. iii. tit . xi. c. x. He gives this as the common definition, Censura ecclesiastica prohibens umm rerum divinarum ut fidelibus commvnem, quatenus talis est. See also Van Espen, Tract, de Censur. c. ix.
* Wood's Inst. 510. 5 Stat. 24 Hen. VIII. c . xii.
deprivation of all right to exercise ecclesiastical functions, or to possess any privileges or emoluments attached to them.1 In the first centuries of the church, the terms deposition and degradation were used indifferently; but in the more modern canon-law, deposition is where a clerk is deprived of his benefice, office, or dignity; and degradation is the deprivation of his order itself, that is to say, of all right to perform the functions belonging thereto.2
The object of the church's censures being edification, and not destruction—the recovery, not the mere punishment of sinners,—she must be willing to receive those who sincerely repent.3 Whenever the church judges repentance to be sincere, she will restore the penitent to Christian privileges by absolution.
There now only remain to be considered the provisions which the law has made for keeping the ecclesiastical courts within the bounds assigned to them by the public law of the land. The principal remedy provided for this purpose, is the writ of prohibition, which, indeed, may be directed not only to the courts Christian, or ecclesiastical courts, but to other inferior tribunals, which we shall consider in the next chapter.
"A prohibition," says Blackstone, "is a writ issuing properly out of the king's bench, being the king's prerogative writ; but for the furtherance of justice it may also be had in some cases out of the court of chancery,4 common pleas,5 or exchequer,6 directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof, upon a suggestion,
1 Gibson, Codex, tit. xlvi. * Fleury, Inst. par. i. c. ix.
3 Palmer, Tr. on the Church, v. ii. p. 300, 301. And see 2 Cor. xiii 10; 2 Cor. vii. 8, 10; Gal. vi. 1. * 1 P. Williams, 476. 5 Hob. 15. « Palmer, 523.
that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognisance of some other court.” This writ may also issue in another species of cases; namely, where in handling of matters clearly within their cognisance, the inferior jurisdiction transgresses the rules prescribed to them by the law of England; for where the law of the land, and that by which the ecclesiastical court regulates its decision, differ, and it is not properly a spiritual question, but one allowed to be decided in that court, because incident or accessary to some original question clearly within their jurisdiction,-it ought to be decided not by the ecclesiastical, but the temporal law; because otherwise the same question might be determined in different ways, according to the court in which the suit is depending.” “And if either the judge or the party shall proceed after such prohibition, an attachment may be had against them, to punish them for the contempt, at the discretion of the court that awards it;” and an action will also lie against them to repair the party in damages.” And it is proper to add here, that in almost every state in Europe under the Roman church, the temporal courts or the state take cognisance of appeals, ab abusu, in cases where the ecclesiastical judge is alleged to have exceeded his powers." The great object of all legislation on this subject is to prevent the exterior power of the ecclesiastical magistrate from encroaching on the temporal jurisdiction, from whom that exterior power emanates; but, at the same time, to leave inviolate the spiritual rights and functions of the church, and not to deprive her of any portion of that freedom which is essential to the due performance of her sacred office.
* Blackst. Com. b. iii. c. vii. p. 111, 112; and see 2 Inst. 601, 618. 2 Fitzh. Nat. Brev. 40.
• Blackst. Com. ibid. p. 112. As to the mode of proceeding to obtain or resist the issuing of a prohibition, see stat. 1 Wm. IV. c. xxi.
* Palmer, Treat. on the Church, vol. ii. p. 343. Van Espen, Tract. de Recursuad Principem. Fleury, Inst. par. i. c. v. Van Espen, Jus. Eccles, par. iii. tit.x. c. iv. De Marca de Concord. Sacerd. et Imper. lib. iv.
The duty of the civil power to support and maintain the laws of the church' is irreconcilable with any violation of her liberty; and that duty should be the more diligently performed in proportion to the excellence of the end therein proposed. “Si leges civiles,” says the emperor Justinian, “quarum potestatem nobis Deus pro sua benignitate credidit, firmas ab omnibus custodiri ad obedientium securitatem studemus ; quanto plus studii adhibere debemus circa sacrorum canonum et divinarum legum custodiam, quae super salute nostrarum animarum definitae sunt.”
NotE.-It seems proper here to point out a defect in the provisions of the Ecclesiastical Discipline Act. Causes sent by letters of request, or carried by appeal, to the archbishop's, are, under the provisions of the act, to be heard and determined not by the archbishop in person, but by the judge of the court of the province, who is usually a layman. Now, this is inconsistent with the general principle on which the act is grounded; namely, that the jurisdiction over the clergy, in matters of ecclesiastical discipline, should be exercised by the bishops in person, and not by laymen. If the bishop is to exercise jurisdiction in person, in the first instance, it seems absurd to refuse to the archbishop the power of doing the same, when the cause comes before him by way of appeal; and there can be no reason why the archbishop should not hear and determine a cause sent to him by letters of request, in the same manner in which the bishop would have heard and determined it if he had not so sent it. The bill was brought in by the lord chancellor; but for the more valuable portions of it the Church is indebted to the bishop of Exeter. * Chancellor d'Agnesseau, CEuvres, t. i. p. 416. * Novel. 137, c. i.
OF COURTS MILITARY AND MARITIME, AND COURTS OF A SPECIAL JURISDICTION.
Two species of courts, whose jurisdiction is equally public and general with that of the courts of common law and equity already described, but which take cognisance of matters of a peculiar nature, remain to be considered; namely, courts military and maritime.
I. Of the courts military Blackstone gives the following account. "The only court of this kind known to and established by the permanent laws of the land, is the court of chivalry, formerly held before the lord high constable and earl marshal of England jointly; but since the attainder of Stafford, duke of Buckingham, under Henry VIII., and the consequent extinguishment of the office of lord high constable, it hath usually, with respect to civil matters, been held before the earl marshal only.1 This court, by stat. 13 Rich. II., hath cognisance of contracts and other matters touching deeds of arms and war, as well out of the realm as within it; and from its sentences an appeal lies immediately to the sovereign in person.2 This court was in great reputation in the times of pure chivalry, and afterwards during our connexion with the continent, by the territories which our princes held in France; but is now grown almost entirely out of use,
1 1 Lev. 230. Shower, Pari. Cas. 60.
2 4 Inst . 125. Where the reader will find carious particulars concerning this court, and the herald's, in Coke's quaint style.