« PreviousContinue »
Erchequer chamber. Vide Courts, (D 5, &c.) — PLEADER, (3 B 5.)
Erchequer seal. Vide PATENT, (C 3.)
EXCOMMENGEMENT. (A) Ercommunication.
(A 1.) What effect it shall have. p. 202.
(B 1.) When it lies. p 204.
cate of the contempt.- By whom it shall be made.
B 4.) How the writ shall be executed. p. 207.
(B 5.) How discharged. p. 209. (C) Absolution. p. 210.
A 1.) What effect it shall have. Excommunication (a) is (6) when a man by sentence of the ordinary (c) is deprived of communion with the church of God.
(a) 1. The 53 G. 3. c. 127. 8. 1. provides, that excommunication, together with all proceedings following thereupon, shall, in all cases, save those hereafter to be specified, be discontinued; and that in all causes which are cognizable in the ecclesiastical courts, when any person having been duly cited to appear in any ecclesiastical court, or required to comply with the lawful orders or decrees, as well final as interlocutory, of any such court, shall neglect or refuse to appear, or neglect, &c. to pay obedience to such orders, &c. or when any person shall commit a contempt in the face of such court, no sentence of excommunication shall be given or pronounced save in the cases hereafter to be specified; but, instead thereof, it shall be lawful for the judges or judge who issued out the citation, or whose lawful orders, &c. have not been obeyed, or before whom such contempt shall have been committed, to pronounce such person contumacious and in contempt, and within ten days to signify the same in the form to this act annexed, to his majesty in chancery, as hath heretofore been done in signifying excommunications ; and thereupon a writ de contumace capiendo, in the form to this act annexed, shall issue from the court of chancery, directed to the same persons, and returnable in the same manner as the writs de excommunicato capiendo have heretofore been directed and returnable, and shall have the same force and effect as said writ; and all rules and regulations not hereby altered, nor by law applying to the said writ and proceedings thereupon, and particularly the provisions contained in the 5 Eliz. C. 23. shall be applied to the writ de contumace capiendo, and the proceedings following thereupon; and the proper officers in chancery are hereby required to issue said writ de contumace capiendo accordingly; and all sheriffs, gaolers, and other officers are required to execute the same, by taking and detaining the body of the person against whom said writ shall be directed to be executed; and upon the due appearance of the party so cited and not having appeared as aforesaid, or the obedience of the party so cited, and not having obeyed as aforesaid, or the due submission of the party so having committed a contempt in the face of the court, the judges or judge of such court shall pronounce such party absolved from the contumacy and contempt aforesaid, and shall forthwith make an order upon the sheriff, &c. in whose custody he shall be in the form to this act annexed; for discharging such party out of custody; and such sheriff, &c. shall, on the said order being shown to him, so soon as such party shall have discharged the costs lawfully incurred by reason of such custody and contempt, forthwith discharge him. 2. And by $ 2. provides, that nothing in this act shall prevent any ecclesiastical court
from pronouncing or declaring persons to be excommunicate in definitive sentences, or in interlocutory decrees having the force of definitive sentences, such sentences or decrees being pronounced as spiritual censures for the offences of ecclesiastical cognizance, in the same manner as such court might have pronounced the same had this act not passed. — 3. And by 0 3., no person who shall be so pronounced excommunicate, shall incur any civil penalty or incapacity in consequence of such excommunication, save such imprisonment, not exceeding six months, as the court declaring such person excommunicate shall direct, and in such case the said excommunication, and the term of such imprisonment, shall be signified or certified to his majesty in chancery, in the same manner as excommunications have been heretofore signified; and therenpon the writ de ercommunicato capiendo shall issue, and the usual proceedings shall be had, and the party being taken into custody shall remain therein for the term so directed, or until he shall be absolved by such ecclesiastical court. — 4. And by s. 12. if any action or suit shall be brought for any thing done in pursuance of this act, such action, &c. shall be commenced within three calendar months after the fact committed, and shall be laid and tried in the city or county wherein the cause of action shall have arisen, and not elsewhere; and the defendant shall and may plead the general issue, and give this act and the special matter in evidence, and that the same was done in pursuance of this act; and if the same shall appear to have been so done, or if any action, &c. shall be brought after the time above limited, or shall be laid in any other place than as aforesaid, then the jury shall find for the defendant; and the defendant shall have treble costs upon such verdict, or, in case of nonsuit, or discontinuance, or of judgment against plaintiff upon demurrer.
1. It is the highest ecclesiastical censure which can be pronounced by a spiritual judge against a Christian, for thereby he is excluded from the body of the church, and was disabled to bring any action, or sue any person in the common law courts. Co. Lit. 133. Godb. Rep. 624.-2. And by the 33d of the articles of the church of England, that person who by open denunciation of the church is rightly cut off from the unity of the church, and excommunicated, ought to be taken by the whole multitude of the faithful, as an heathen and publican, until he be openly reconciled by penance, and received into the church by a judge that hath authority thereunto. 3. It was in its original, inflicted by way of punishment only for great and heinous crimes, according to the rule in the reformatio legum, fol. 80., ' non debet excommunicatio minutis in delictis versari, sed ad horribilium criminum atrocitatem admovenda est, in quibus ecclesia gravissimam infamiam sustinet, vel quod illis evertatur religio, vel quod boni mores pervertantur.' - 4. Though afterwards the frequent use of excommunication was in cases of contamacy for not appearing or for disobeying sentences, though in the smallest matters, and those oftentimes of a civil nature; which was one of the principal means of bringing a contempt upon it, and yet was the only way which the spiritual court had to enforce obedience. Gibs. Cod. 1095. – 5. The use of it in cases of mere contumacy is abolished by the st. 53 G. 3. c. 127., supra; and its severities, where it is still allowed, are also mitigated by that statute. — 6. The Druids in Gaul, says Sir Henry Gwillim, 3 Bac. Abr. 329., had recourse to the process of excommunication, as appears from the account left us by Cæsar; and the features of their excommunication have so strong a resemblance to those of the excommunication of later days, that he subjoins the passage: “ Illi (Druides) rebus divinis intersunt, sacrificia publica et privata, procurant, religiones interpretantur.'--' Fere de omnibus controversiis, publicis privatisque, constituunt; et si quod est admissum facinus, si cædes facta, si de hæreditate, si de finibus controfersia est, iidem decernunt, præmia pænasque constituunt. Si quis aut privatus, aut publicus, eorum decreto non steterit sacrificiis interdicunt. Hæc pæna apud eos est gravissima. Quibus ita est interdictum, äi numero impiorum ac sceleratorum habentur; iis omnes decedunt; aditum eorum sermonemque defugiunt, ne quid ex contagione incommodi accipiant ; Reque iis petentibus jus redditur, neque bonos ullus communicatur.' Com. lib. 4. – 7. Mr. Hume, in his history of the reign of James I., after stating that his object was to establish a conformity of discipline and worship between the churches of England and Scotland, observes, that he never could hope to establish it, but by first procuring an acknowledgment of his own authority in all spiritual causes; and that nothing could be more contrary to the practice as well as principles of the presbyterian clergy. The ecclesiastical courts possessed the power of pronouncing excommunication; and that sentence, besides the spiritual consequences supposed to follow from it, was attended with immediate effects of the most important nature. The person excommunicated was shunned by every one as profane and impious; and his whole estate, during his life time, and all his moveables, for ever, were forfeited to the crown. Nor were the previous steps, requisite before pronouncing this sentence, formal or regular, in proportion to the weight of it. Without answer, without summons, without trial, any ecclesiastical court, however inferior, sometimes pretended, in a summary manner, to de
And there is a major (d), or a minor excommunication : by the minor he is deprived only of participation of the sacraments. Co. L. 133. b.
By the major excommunication he shall be deprived de fidelium communione et ab omni actu legitimo. Co. L. 133. b.
Cum excommunicato nec orare, nec loqui palam aut absconditè, nec vesci licet. Co. 193. b.
And therefore, if a plaintiff sue an action real, personal, or mixed, it is a good plea in disability of his person, that he is excommunicated. Lit. S. 201. Vide Abatement, (E 7). Where a statute says that a nian shall be excommunicated, ipso facto, there needs no sentence of excommunication. i Vent. 146.
Yet he shall not be excommunicated, till the conviction for the offence be transmitted to the ordinary. R. 1 Vent. 146. Semb. Cro. El. 919.
But after excommunication the ecclesistical court cannot send a pursuivant or letters missive to take him; for they ought to make a certificate, and upon that a capias excommunicatum issues. R. Cro. El. 741.
And upon this writ they shall not break a house in the night to take the person. Cro. El. 741. (B) The writ de excommunicato capiendo.
(B 1.) When it lies. (e) If (f) a man be excommunicated and continues in contempt for forty
nounce excommunication, for any cause, and against any person, even though he lived not within the bounds of their jurisdiction. And by this means, the whole tyranny of the Inquisition, though without its order, was introduced into Scotland.
(c) i. The sentence of excommunication can only be pronounced by the bishop, or other person in holy orders, being a master of arts at least. Gibs. Cod. 1095. – 2. Also the priest's name pronouncing such sentence is to be expressed in the instrument issuing under seal out of the court. Ibid.
(d) The greater excommunication, says Sir Henry Gwillim, seems to have been formerly the same with the Anathema ; though in later times there was a material difference between them. 3 Bac. Abr. 329. He refers to the first volume of M. Du Boulay's Histoire du Droit Public Ecclesiastique François, for an admirable dissertation upon excommunications and interdicts.
(e) 1. As to its original, vide supra (A 1.) in notis. - 2. To which may be subjoined, in the words of Dr. Robertson, that the censure of excommunication was instituted originally for preserving the purity of the church; that obstinate offenders, whose impious tenets or profane lives were a reproach to Christianity, might be cut off from the society of the faithful. This, ecclesiastics did not scruple to convert into an engine for promoting their own power, and inflicted it on the most frivolous occasion. Whoever despised any of their decisions even concerning civil matters, immediately incurred this dreadful censure, which not only excluded them from all the privileges of a Christian, but deprived them of their rights as men and citizens; and the dread of this rendered even the most fierce and turbulent spirits obsequious to the authority of the church. Hist. Charles V. 2 vol. 160, 161. – 5. The spiritual consequences which the sentence entailed, the proofs employed to establish them, and the ends to which the sentence was applied, will be understood by referring to an extract from an ancient work, given by the editor of the Quarterly Review, in the article “Cemeteries of Paris;" commencing with“When the blessed St. Augustine," &c. 4. It seems agreed, that wherever the spiritual court hath jurisdiction in any cause, and the party refuses to appear to their citation, or after sentence, being admonished, refuses to obey their decree, that he may be excommunicated. Rol. Abr. 883. 12 Rep. 76. - 5. That anciently the king's tenants who held in capite, and whose attendance was necessary on the person of the king, could not be excommunicated, see 2 Inst. 631. Gilb. Cod. 1102. - 6. That a bishop or other peer of parliament may be excommunicated, see 7 Mod. 56. — 7. And that a clergyman of the church of England, acting contrary to the rules and discipline thereof, may, notwithstanding the toleration act, be excommunicated, see 2 Atk. 498.
(f) It lies on an appeal and complaint of nullity; for it is their form to which regard must be had, Str. 1189.
days, upon certificate by the ordinary to the chancery, a writ de excommunicato capiendo issues. (g) Cro. Ēl. 741.
And by the st. 9 Ed. 2. 12. such writ shall not be denied, though it be against the king's tenant.
By the common law, such writ not returnable in chancery. 1 Sal. 293.
And needed not to mention any cause but for contempt; for the cause afpeared to the chancery by the significavit of the bishop. 1 Sal. 293. (h)
But since the st. 5 El. 23. the cause of excommunication ought to be mentioned in the writ, whereby B. R. where it is returnable by that statute, may judge of it. Sal. 293. (2)
By the st. 5 El. 23. the writ of excommunicato capiendo shall bear teste in term, andbe (k) returnable in B. R., some day in the next term, and there shall be twenty days between the teste and return.
If it was not returned, by the common law there was an alias, and pluries, and afterwards an attachment against the sheriff, returnable in B.R. F. N. B. 62. O.
And now, by the st. 5 El. 23. the writ made and sealed shall be brought into B. R. and there delivered (1) of (m) record to the sheriff, who, failing to make return, shall be amerced at the discretion of the justices.
If the party live in Wales, any county palatine, or cinque-port, the significavit into chancery shall be sent by mittimus, &c. and they shall direct process to their officers there.
If (g) 1. It is said that the writ de excommunicato capiendo, is a liberty or privilege peculiar to the chorch of England, above all the realms in Christendom. For though the assistance of the secular arm hath ever been afforded to the church in most other Christian countries, as well as in this, yet in no instance is it perhaps so surely and effectually reached out as by the execution of this writ. Gibs. Cod. 1102. – 2. It has been said likewise that the writ is debitum justitiæ, and not made to depend upon the pleasure of the prince. Ibid. - 3. But in 2 Inst. 623. 631., it is laid down that the writ, de gratia regis procedit.
(1) Lord Raym. 619.
6 1. Lord Raym. 618. i Str. 43. 76. 2 Abr. 946. 1067. - 2. The cause of excommunication is sufficiently stated in a writ de ercommunicato capiendo, when it is alleged to be in a cause of defamation merely spiritual.' 7 T. R. 153. – 3. So‘for slander or defamation,' 2 Str. 950.- 4. And false grammar is no ground of objection. Str. 265.- 5. But if the writ command the sheriff to hold two defendants till they have made satisfaction, so that if one alone made satisfaction he could be discharged, the writ shall be quashed. And. 220.
(k) The writ is directed to the sheriff (or to the proper officer when the sheriff is incapacitated); and therefore if a prisoner for debt in Newgate is removed to the Fleet, and afterwards excommunicated, chancery will not order the cursitor to make out a writ directed to the warden of the Fleet, but it must be directed to the sheriff, who may return non est invent. into B. R., and that court will grant a habeas corpus, and then charge the prisoner with excommunicato capiendo. 3 P. Wms. 53.
( The statute runs, and there in the presence of the justices, shall be opened and delivered,' &c.; and that the precise form of the statute must herein be observed, and that the writ must be brought and openly delivered in court. See Cro. Jac. 567.
(m) 1. That the writ must be enrolled and delivered to the sheriff in convenient time, see Cro. Car. 583. Vent. 338. - 2. And the prisoner may be discharged on motion as well as by pleading this matter at the return of the habeas corpus. Vid. Sid. 285. — 3. But in one case, for such a fault the court refused to discharge the prisoners, or to bail them, because they were dangerous persons; and refused to take the oath of allegiance. Sid. 165. — 4. It was formerly doubted, whether after the writ had been issued out of chancery, and brought into the court of B. R., and there delivered to the sheriff, but not actually returned into B. R., the court of chancery, on a plain error appearing, could supersede it. i P. Wms. 435. — 5. But it was determined by Lord Hardwicke, that after the return of the writ is out, the court of chancery cannot, on a petition to quash the writ, do any thing in it, as they have no authority; for
And if a writ of excommunicato capiendo be delivered upon record in B. R. process goes from that court till the party be taken without resorting to the chancery for a new original. (n)
Though it be not for any of the causes mentioned in the statute. R. 1 Rol. 174.
(B 2.) What ought to be done previous. -A certificate of
the contempt. — By whom it shall be made. Before the writ of excommunicato capiendo be granted, there ought to be a certificate (o) to the chancery of the contempt of the party, by the ordinary by his letters under seal. I Sal. 293.
And such certificate ought to be by the bishop, or immediate ordinary. As, by the archdeacon of Richmond, Co. L. 134. a.
By the guardian of the spiritualities in time of vacation : as, by the dean and chapter, archbishop, &c. if he be guardian of the spiritualities. F, N. B. 62. N. Co. L. 134. a. (p)
So, if the bishop be in remotis, viz. beyond sea, or out of his diocese, the certificate may be by his chancellor, or vicar general. F. N. B. 62. N. (p)
And the certificate shall be good, though the bishop be not in remotis : for that is not traversable. F. N. B. 62. N.
So a bishop elect may make a certificate, before he be consecrated. Co. L. 134. a.
But none except the bishop, or other ordinary, that is immediate officer to the king's courts, regularly can make a certificate of excommunication. Co. L. 134. a.
And therefore, upon the pope's bull certifying an excommunication, the writ of excommunicato capiendo did not go. F. N. B. 64. F.
Nor, upon a certificate, that another bishop certified him of it. F. N. B. 65. A. the court of B. R. have the cognizance of it, and they can compel the sheriff to return it, and the application to quash it must be to them. If, indeed, the writ issue in the vacation, and be not yet returnable (for it must be returned on one of the return days in the term), the court of chancery will give relief and discharge the party out of custody. 3 Atk. 479. – 6. But if the writ issued from the court of chancery be opened and enrolled in B. R., and on exceptions taken, a rule be made for the prosecutor to show cause, why the delivery of the writ to the sheriff shall not be staid, and before that can be done the return be out, another writ may be sued out from chancery, but not from B. R. 2 Str. 1189.-7. After a writ had been opened and entered of record, it was delivered out in order to take up the defendant, and before the return the defendant moved and had it superseded; for the court said, that they could judge of it by the entry, and since it appeared that the defendant could not be legally de tained upon it if he was taken, it was proper to supersede it, to prevent him from being restrained of his liberty contrary to law; that the intent of this statute in directing the writ to be delivered in open court, was to apprise the court of the nature of the cause ; that this was now to be considered as a writ that improvide emanavit, and they were not to wait till the return, till all the inconveniency, which they should have prevented by not issuing the writ, had happened. i Str. 43. 10 Mod. 350. Bac. Abr. 342.
(n) If the writ is issued from chancery, opened and enrolled in B. R., and, on exception taken, a rule made for prosecutor to show cause why the delivery of the writ to the sheriff should not be stayed, and before that can be done the return is out, another writ may be sued out from chancery, not from B. R. Str. 1189.
(0) An excommunication may be certified by letters testimonial, as well as by direct certificate. But in both cases the certificate must be pleaded sub sigillo, as well in equity as at law. i Vent, 222. Mitf. pl. 186. (p) Vern, 222, 3 Keb. 60. 69.