effect as formerly belonged, in case of contempt, to a writ de excommuni- GENERALLY. cato capiendo. (1) Where no sentence is required, and the writ is only resorted to, in the nature of process, to compel obedience to some order or interlocutory decree, in such case the name of the writ is altered; it is no longer a writ de excommunicato capiendo, but a writ de contumace capiendo. Still the mode in which it is issued, and the machinery by which it is to be carried into execution, is expressly directed to be according to stat. 5 Eliz. c. 23., as if those provisions had been specially re-enacted; the enactments of that act therefore apply equally to the writ de contumace, as to the writ de excommunicato capiendo. (2) (1) 3 Black. Com. by Stephen, 721, 722. (2) Rogers' Eccles. Law, 425. The Bishop of Lincoln, in his charge at the triennial visitation in 1846, made the following remarks upon excommunication and the discipline of the church : "Courts of judicature were established, which at first took cognisance only of the delinquencies of the clergy and of matters connected with religion; but by degrees extended their authority to temporal causes, in which one of the parties happened to be an ecclesiastic; and at length to all causes whatever; under the pretence, that whenever the civil magistrate either denied justice or administered it ill, the cognisance of the cause devolved on the Ecclesiastical Court. In the mean time the Bishop of Rome, the self-styled vicar of Him who declared that His kingdom is not of this world, claimed to himself a superiority, not in spirituals only, but also in temporals, over all earthly monarchs; fulminating his anathemas against them, absolving their subjects from allegiance, and disposing of their thrones. Excommunication was no longer employed to punish only spiritual offences to awaken impugners of the true faith and violators of the laws of God to a wase of their guilt, and thus to lead them to repentance. but to enforce the sentences of the Ecclesiastical Court in matters purely temporal-to enable ambitious and worldly inded ecclesiastics to accomplish their 'ans of temporal aggrandizement. The aid, too, of the civil powers, to which the arly Christians never had recourse excepting for protection, or for the recovery of rights unjustly withheld, was now called in whenever the ecclesiastical authorities thought fit, under pain of excommunication if it was not immediately granted; until, at last, the state was converted into a mere executioner of the decrees of the church. We cannot, therefore, wonder that the feeling of awe, with which spiritual censures were regarded in the primitive church, was gradually weakened, when men aw them perverted from the purpose for which authority to pronounce them was originally conferred — that of awakening the fears of sinners and leading them to repent ance- and rendered subservient to the prosecution of worldly interests; when they saw the prodigality with which they were poured forth in support of the extravagant pretensions of the Roman pontiff, and the eagerness exhibited on all occasions to employ the arm of the civil power to give them effect. Other causes, among them the introduction of the practice of auricular confession, contributed gradually to impair the efficacy of the public discipline of the church; but the cause above mentioned was that which principally operated. A reaction was produced in the minds of men; from a superstitious dread of excommunication they passed into the opposite extreme; and after having long submitted to the abuse, became impatient of the use of ecclesiastical discipline. "So long as this kingdom continued in subjection to the Bishop of Rome, the proceedings in the Ecclesiastical Courts were conducted according to the canon law. But Henry VIII. (vide his letter, prefixed to the Reformatio Legum) was too sharpsighted not to see that the abolition of the papal power could not be deemed complete, so long as a code of law, framed principally for the purpose of maintaining and extending it, remained in force. He therefore took measures for framing a new code, but died before the work was finished. It was resumed by his successor; and the result of the labours of the learned men to whom Edward VI. assigned the task of examining the canons, constitutions, and ordinances then in force, and framing a new body of ecclesiastical laws, is still extant under the title of Reformatio Legum Ecclesiasticarum. If he had lived there is little doubt that this new code would have received the royal confirmation and the sanction of Parliament. That it did not receive them in the reign of Elizabeth may be ascribed partly to the jealousy of the civil courts, partly to the jealousy of the queen herself, who thought that if the law were too strictly defined, the power of altering the ecclesiastical laws, which she claimed in right of her prerogative, would be cramped and curtailed. The canon law (Burn, preface to his Eccles. Law, 34. ed. 7.), therefore, is still in force, so far as it has been received in this realm, Writ de contu mace capiendo. THE STATUTES. 2. THE STATUTES. The statutes applicable to the writs of contumace capiendo and excommunicato capiendo are stat. 5 Eliz. c.23., stat. 53 Geo. 3. c. 127., stat. 2 & 3 Gul. 4. c.93., and stat. 3 & 4 Vict. c.93. and is not contrarient to the common law, the statute laws, and the royal prerogative. "A cursory inspection of the Reformatio Legum will suffice to show what were the sentiments of our reformers respecting the maintenance of discipline in the church. Many of the canons of 1603 are directed to that object; and the articles of enquiry, issued before every visitation of the diocese, are founded on those canons. But the canons having been pronounced to be not binding on the laity, presentments — with a view to the correction of offences against the laws of God - are rarely made, and the censures of the church no longer operate to deter men from sin. I am aware that I am treading on dangerous ground when I venture to speak of a revival of those censures, and especially of excommunication. I am aware of the jealousy which exists-a jealousy which, looking back on the past, I cannot pronounce unfounded or unreasonable of any measure which appears to place power in the hands of the clergy. But the national church is now practically deprived of a power, of which the possession is (Warburton's Alliance, book 1. chap. v. vol. vii. p. 67. ed. 1811), as I have already observed, involved in the notion, and almost essential to the existence, of a society the power of cutting off from the privileges of membership offenders against its authority and laws. The sense entertained by the framers of our liturgy of the injury inflicted on the church by the want of a penitential discipline is forcibly expressed in the preface to the Commination service. But if we proceed to enquire why we labour under that want, the answer must, I think, be, that the very aid which has been invoked to give effect to ecclesiastical censures the aid of the state - has caused them to fall into disuse. The civil penalties, consequent upon a sentence of excommunication, have prevented the ecclesiastical authorities from proceeding against offenders. They shrink from the attempt, not more from an apprehension of the clamour which the infliction of those penalties would create, than from a sense of their unsuitableness to accomplish the true end of spiritual censures the awakening of the conscience of the transgressor. My conclusion, therefore, is, that in order to restore to those censures their due authority, we must disconnect them with all civil penalties. The offences against which they are directed are transgressions of the divine law; and the motive which the church ought to pro pose in order to deter men from offending is fear, not of the temporal penalties inflicted by human laws, but of the eternal punishments denounced in God's law against sin. To pronounce an offender excommunicate, and then to call in the civil power, is to confess at once that the church is not invested by its divine founder with any external coercive power, and that it is desirous to obtain that which He never intended to confer upon it. "This suggestion may at first sight appear paradoxical. It may be said, that if spiritual censures are now lightly regarded, though civil penalties are consequent upon them, they will fall into utter contempt when the dread of those penalties is entirely removed. Even if this should prove to be the case, and the censures of the church should become (if it be possible) more inoperative than they now are to restrain men from the violation of the laws of God, still the church would derive great advantage from the exclusion of the of fender from its communion. We now complain that men break off and resume their communion with it at pleasure, as their interest or their caprice prompts them. But if the power of excommunication were exercised, this would no longer be the case: the line would be drawn, as distinctly as in the primitive times, between those within and those without the Church; between the subjects of Christ and the subjects of the God of this world. Again, we complain that we are compelled to perform the last offices according to the rites of the Church, for those who, while living, openly rejected its authority; and to declare that we commit to the ground, in sure and certain hope of the resurrection to eternal life, the bodies of those who lived in the habitual practice of sin, and died unrepentant-of whom even the charity, which hopeth all things, scarcely ventures to entertain a hope. These are grievances of which the clergy complain, and from which they would be relieved, if the power of excommunication were exercised, although no temporal penalties followed upon the exercise. More than this. Is there not ground for hoping that the removal of civil penalties, far from diminishing, would increase the dread of spiritual censures? That the appeal to the offender's conscience would be more effectual, if the judgment to come, and all the momentous transactions of the day of final account, were brought exclusively before his view, separate from all considerations of human Stat. 5 Eliz. c. 23. s. 2. Awarding and returning the writ of excommunicato capi endo. Stat. 5 Eliz. What is to be c. 23. s. 4. Where the sheriff returns non est inventus. First capias. Stat. 5 Eliz. c. 23. (1) s. 2. directed that every writ of excommunicato THE STATUTES. capiendo should be made in term time, and returnable in the King's Bench, in the term next after its teste, and should contain at the least twenty days between its teste and return; and that after it be so made and sealed, it should be forthwith brought into the King's Bench, and there, in the presence of the justices, be opened and delivered of record to the sheriff or other officer to whom the serving and execution of it appertained, or his deputy; and ss. 3, 4, 5, 6, and 7. directed that the sheriff or other officer should not be compelled to bring the body into the King's Bench on the return day, but should only return the writ thither, declaring briefly the service and execution; and if he returned that the party could not be found within his bailiwick, then the justices of the King's Bench were to award one writ of capias against the party returnable in that court in termtime two months at least next after its teste, proclaiming in the writ that the sheriff or other officer in the full county-court, or else at the general assizes and gaol-delivery to be holden within the county, or at a quartersessions to be holden before the justices of the peace within the county, should make open proclamation ten days at the least before the return, that the party within six days yield his body to the gaol or prison of the sheriff' or other officer, there to remain as a prisoner, according to the original writ, upon pain of forfeiture of ten pounds; and at the expiration of the six days, the sheriff or other officer was to make return of the writ into the King's Bench, of all done in its execution, and whether the party had yielded his body to prison or not; and if he had not, he was to forfeit to the queen ten pounds, which was to be estreated by the justices of the King's Bench into the Court of Exchequer; and thereupon the justices of the King's Bench were to award another writ of capias against the party, with a proclamation similar to that contained in the first capias, and a pain of twenty pounds to be mentioned in the second writ and proclamation: and the sheriff or other officer was to serve and execute the second writ in the manner directed for the serving and executing of the first; and if the party had not yielded his body to prison, then he was to forfeit to the queen twenty pounds, which the justices of the King's Bench were to estreat into the Court of Exchequer; and then the justices were to award another writ of capias against the party, with a proclamation and pain of forfeiture similar to those contained in the second writ; and the sheriff or other officer was to serve and execute the third writ in the manner directed for the serving and executing of the first and second writs; and if the party had not yielded his body to prison, then he was to forfeit to the queen other xx. li., which was likewise to be estreated into the Court of the Exchequer; and thereupon the justices of the King's Bench were likewise to award a writ of capias against the party, with like proclamation and like pain of forfeiture of xx. li.: and they were authorised infinitely to award such pro tribunals and temporal punishments? This good, at least, would flow from the change: -the church would be able to rely with greater confidence on the sincerity of the repentance of those who sought re-admission to its communion; would feel a more certain assurance that the penitent was not actuated by worldly motives, by a regard to his temporal interests, but by those feel- (1) Vide Stephens' Ecclesiastical Statutes, Stat. 5 Eliz. c. 23. s. 5. Ten pounds forfeiture for not appearing upon the first capias. Stat. 5 Eliz. c. 23. s. 6. Second capias. Twenty pounds forfeiture upon the second capias. Stat. 5 Eliz. c. 23. s. 7. Third capias.' Twenty pounds forfeit are upon the third capias. Awarding of capias infinitely, and xx. li. forfeit upon every of them. THE STATUTES. cess of capias, with such like proclamation and pain of forfeiture of xx. li. Stat. 5 Eliz. c. 23. s. 8. The offender yielding his body shall be committed to prison. Stat. 5 Eliz. c. 23. s. 9. of a sheriff for Stat. 5 Eliz. c. 23. s. 12. Certain persons discharged aforesaid. Stat. 5 Eliz. c. 23. s. 13. Addition ac 1 Hen. 5. c. 5. against the party, until by the return of some of the writs it appeared that he had yielded himself to the custody of the sheriff or other officer; and he upon every, his default and contempt against the proclamation of any of the writs infinitely awarded against him, was to incur like pain and forfeiture of xx. li., to be estreated in like manner. Sect. 8. directed that when the party yielded his body to the hands of the sheriff, or other officer, upon any of the writs of capias, the party should remain in the prison and custody of the sheriff or other officer, without bail, baston, or mainprise, in such manner as he ought to have done if he had been taken upon the writ of excommunicato capiendo. Sect. 9. imposed upon the sheriff, or other officer, making an untrue return upon any of the writs, that the party had not yielded his body where he had a forfeiture to the party grieved by the return, the sum of forty pounds; for which the party grieved was to have his recovery and due remedy by action of debt, bill, plaint, or information in any of the Queen's Courts of Record; in which action, bill, plaint, or information, no essoin, protection, or wager of law was to be admitted or allowed for the defendant. "By sect. 12. no person being, at the time of the award of any process of capias, in prison, or in parts beyond the sea, or within age, or of non sana memoriæ, or woman covert, was to incur any of the pains or forfeitures for any default happening during such time of nonage, imprisonment, being beyond the sea, or non sanæ memoriæ; and the party grieved might plead every such cause in bar of and upon the distress, or other process made for levying any of the pains or forfeitures: and ss. 13 and 14. provided that if the offender against whom any such writ of excommunicato capiendo was awarded, should not in it have a sufficient and lawful addition (1), according cording to stat. to the form of the Statute of Primo of Henry the Fifth, in cases of suits whereupon process of exigent was to be awarded, or if the significavit should not contain that the excommunication proceeded upon some cause or contempt of some original matter of heresy, or refusing to have his child baptized, or to receive the holy communion as it was then commonly used to be received in the Church of England, or to come to divine service then commonly used in that church, or error in matters of religion or doctrine then received and allowed in that church, incontinency, usury, simony, perjury in the Ecclesiastical Court, or idolatry, then all the pains and forfeitures limited against such persons excommunicate should be void, and by way of plea be allowed to the party grieved; and that if the addition were with a nuper of the place, then at the awarding of the first capias Addition with with proclamation, one writ of proclamation (without any pain expressed) Stat. 5 Eliz. c. 23. s. 14. a nuper. should be awarded into the county where the offender was most commonly resiant at the time of the award of the first capias with pain to be returnable the day of the return of the first capias with pain, with proclamation there In (1) Shall not in the same writ . . . have a sufficient and lawful addition: Regina v. Sangway (1 Salk. 294.) the defendant was excommunicated for a certain cause of jactitation of marriage, and taken upon a capias, and brought up by habeas corpus; and exception was taken to the writ, that therein no addition was given to the de- upon at some one such time and court as was prescribed for the proclamation upon the first capias with pain: and if such proclamation were not made in the county where the offender was most commonly resiant, then he should sustain no pain or forfeiture for not yielding his body. THE STATUTES. Stat. 53 Geo. 3. c. 127. s. 1.. Excommunication discon tinued, except in certain cases. excommuni Stat. 58 Geo. 3. c. 127. s. 1. enacted that in all causes cognisable in the Ecclesiastical Courts, when any person or persons 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, should neglect or refuse to appear, or neglect or refuse to pay obedience to such lawful orders or decrees, or when any person or persons should commit a contempt in the face of such Court, no sentence of excommunication should be given or pronounced, but instead thereof the judges or judge who issued out the citation, or whose lawful orders or decrees have not been obeyed, or before whom such contempt in the face of the Court had been committed, might pronounce such person or persons contumacious and in contempt, and within ten days signify the same, in the form to the act annexed, to his majesty in Chancery, as had theretofore been done in signifying excommunications; and that thereupon a writ de contumace capiendo, in the The same as in form to the act annexed, should issue from the Court of Chancery the writ de directed to the same persons to whom the writs de excommunicato capiendo cato capiendo. had theretofore been directed, and that the same should be returnable in like manner as the writ de excommunicato capiendo had been by law returnable theretofore, and should have the same force and effect as that writ; and that all rules and regulations, not thereby altered, then by law applying to that writ and the proceedings following thereupon, and particularly the several provisions contained in stat. 5 Eliz. c. 23. should extend and be applied to the writ de contumace capiendo, and the proceedings following thereupon, as if the same were therein particularly repeated and enacted ; and that the proper officers of the Court of Chancery might and should issue such writ de contumace capiendo accordingly; and that all sheriffs, gaolers, and other officers might and should execute the same by taking and detaining the body of the person against whom the writ should be directed to be executed; and that upon the due appearance of the party so cited and not having appeared, or the obedience of the party so cited and not having obeyed, or the due submission of the party so having committed a contempt in the face of the Court, the judges or judge of such Ecclesiastical Court should pronounce such party absolved from the contumacy and contempt, and should forthwith make an order upon the sheriff, gaoler, or other officer in whose custody he should be, in the form to the act annexed, for discharging such party out of custody; and that such sheriff, gaoler, or other officer should on the order being shown to him, so soon as such party should have discharged the costs lawfully incurred by reason of such custody and contempt, forthwith discharge him. c. 127. s. 2. excommunica But by sect. 2. the act was not to prevent any ecclesiastical court from Stat. 53 Geo. 3. pronouncing or declaring persons to be excommunicate in definitive sentences, or in interlocutory decrees having the force and effect of definitive sentences, such sentences or decrees being pronounced as spiritual censures tion is to confor offences of ecclesiastical cognisance, in the same manner as such court might lawfully have pronounced or declared the same, had the act not been passed. tinue. |