But altho' these are Judices Ordinarii, and have Ecclesiastical Jurisdiction annex'd to their Ecclesiastical Offices, yet this Jurisdiction Ecclesiastical in Foro Exteriori is derived from the Crown of England: For there is no External Jurisdiction, whether Ecclesiastical or Civil, within this Realm, but what is derived from the Crown: It is true, both anciently, and at this Day, the process of Ecclesiastical Courts runs in the Name, and issues under: the Seal of the Biship; and what Practice stands so at this Day by Virtue of several Acts of Parliament, too long here to recount. But that is no Impediment of their deriving their Jurisdictions from the Crown; for till 27 H. 8. cap. 24. The Process in Counties Palatine ran in the Name of the Counts Palatine, yet no Man ever doubted, but that the Palatine Jurisdictions were derived from the Crown.
Touching the Severance of the Bishop's Consistory from the Sheriff's Court: See the Charter of King Will. I. and Mr.
Selden's Notes on Eadmerus.
Now the Matters of Ecclesiastical Jurisdiction are of Two Kinds, Criminal and Civil.
The Criminal Proceedings extend to such Crimes, as by the Laws of this Kingdom are of Ecclesiastical Cognizance; as Heresy, Fornication, Adultery, and some others, wherein their Proceedings are, Pro Reformatione Morum, & Pro Salute Animae; and the Reason why they have Conuzance of those and the like offences, and not of others, as Murther, Theft, Burglary, &c. is not so much from the Nature of the Offence (for surely the one is as much a Sin as the other, and therefore, if their Cognizance were of Offences quatenus peccata contra Deum, it would extend to all Sins whatsoever, it being against God's Law). But the true Reason is, because the Law of the Land has indulged unto that jurisdiction the Conuzance of some Crimes and not of others.
The Civil Causes committed to their Cognizance, wherein the Proceedings are ad lnstantiam Partis, ordinarily are Matters of Tythes, Rights of Institution and Induction to Ecclesiastical Benefices, Cases of Matrimony and Divorces, and Testamentary Causes, and the Incidents thereunto, as Insinuation or Probation of Testaments, Controversies touching the same, and of Legacies of Goods and Moneys, &c.
Altho' de Jure Communi the Cognizance of Wills and Testaments does not belong to the Ecclesiastical Court, but to the Temporal or Civil jurisdiction; yet de Consuetudine Angliae Pertinet ad Judices Ecclesiasticos, as Linwood himself agrees, Exercit. de Testamentis, cap. 4. in Glossa. So that it is the Custom or Law of England that gives the Extent and Limits of their external Jurisdiction in Foro Contentioso.
The Rule by which they proceed, is the Canon Law, but not in its full Latitude, and only so far as it stands uncorrected, either by contrary Acts of Parliament, or the Common Law and Custom of England; for there are divers Canons made in ancient Times, and Decretals of the Popes that never were admitted here in England, and particularly in relation to Tythes; many things being by our Laws privileg'd from Tythes, which by the Canon Law are chargeable, (as Timber, Oar, Coals, &c.) without a Special Custom subjecting them thereunto.
Where the Canon Law, or the Stylius Curiae, is silent, the Civil Law is taken as a Director, especially in Points of Exposition and Determination, touching Wills and Legacies.
But Things that are of Temporal Cognizance only, cannot by Charter be delivered over to Ecclesiastical jurisdiction, nor be judged according to the Rules of the Canon or Civil Law, which is aliud Examen, and not competent to the Nature of Things of Common Law Cognizance: And therefore, Mich. 8 H. 4. Rot. 72. coram Rege. when the Chancellor of Oxford proceeded aCcording to the Rule of tle Civil Law in a Case of Debt, the judgment was reversed in B.
R. wherein the principal Error assigned was, because they proceeded Per Legem Civilem iubi qiuilibet ligeus Domini Regis Regni sui Angliae in quibusciunque Placitis & querelis infra hoc Regnum factis & emergentibus de Jure tractar.i debt Per Communem Legem Angliae; and altho' King H. 8. 14 Anno Regni sui, granted to the University a liberal Charter to proceed according to the Use of the University, viz. By a Course much conform'd to the Civil Law; yet that Charter had not been sufficient to have warranted such Proceedings without the Help of an Act of Parliament: And therefore in 13 Eliz. an Act passed, whereby that Charter was in Effect enacted; and 'tis thereby that at this Day they have a kind of Civil Law Proceedure, even in Matters that are of themselves of Common Law Cognizance, where either of the Parties to the Suit are privileged.
The Coertion or Execution of the Sentence in Ecclesiastical Courts, is only by Excommunication of the Person contumacious, and upon Signification thereof into Chancery, a Writ de Excommunicatio capiendo issues, whereby the Party is imprisoned till Obedience yielded to the Sentence. But besides this Coertion, the Sentences of the Ecclesiastical Courts touching some Matters do introduce a real Effect, without any other Execution; as a Divorce, a Vinculo Matrimonii for the Causes of Consanguinity, Precontract, or Frigidity, do induce a legal Dissolution of the Marriage; so a Sentence of Deprivation from an Ecclesiastical Benefice, does by Virtue of the very Sentence, without any other Coertion or Execution, introduce a full Determination of the Interest of the Person deprived.
And thus much concerning the Ecclesiastical Courts, and the Use of the Canon and Civil Law in them, as they are the Rule and Direction of Proceedings therein.
