But as, upon a return of a non est inventus on the third capias, the personal apprehending the defendant may well be despaired of, the law proceeds another way; in order, if possible, to give him notice, that is by issuing the writ of exigent, so called from the Latin word exigere, to require, or call upon. This writ commands the sheriff to call the defendant in his county-court, where all the persons of the county are supposed to have business, or at least some that can inform him might have. The words are, We command you that you cause such a one to be required from county-court to county-court, until, according to the law and custom of our realm, he be outlawed if he doth not appear. And if he do appear, him to take, and safely keep, and so forth. Now the law and custom of the realm requires, in this case, that the party should be called on five different county-court days, one after another, before he can be outlawed; and these courts being held at the distance of four weeks from each other, the interval amounts to sixteen weeks, besides the time of the three previous capias’s; a time so abundantly sufficient, as it is scarce to be presumed possible a person living in the county should not have notice; and consequently, on his not appearing in the fifth court, the coroners of the county, whose duty it is, give judgment of outlawry against him.
Such is the care the common law takes to prevent outlawries by surprize. But the act of the thirty-first of Elizabeth in England, enacted here in the eleventh of James, had superadded another caution, namely three publick proclamations. The reason of this superadded caution was, I presume, on account of the dwindling of the business in the county-courts, and, in consequence, their being not so well attended. This writ, commanding the sheriff to make proclamation, issues with the exigent, and recites it, and the cause for which the proceeding to an outlawry is, and directs him to proclaim the party three several days; first in the county-court, secondly at the quarter-sessions, a court of more resort, and lastly on a Sunday immediately after Divine service, at the most usual door of the church of the parish, where the person dwelt at the time the exigent issued; or if no church, in the church-yard of the parish; or if no parish, at the nearest church, and all outlawries in personal actions, where these solemnities are not observed, are declared void.
I have been the more particular on this head, to shew the abundant care the law has taken in these proceedings, and to vindicate it from the common complaint, of outlawries being obtained surreptitiously, and without notice. I am sensible such complaints are generally without foundation; but if in any case they are just, the fault is not in the law, but in man, in the laws not being duly executed; and if we are to complain of the best laws, until they be in all cases perfectly and uprightly executed, we shall never cease complaining while human nature is what it is, weak and corrupt[401].
LECTURE XL.
Continuation of the commentary on Magna Charta.
Having mentioned the several kinds of proceeding to judgment without the intervention of juries, practised by the courts of common law, and authorised under the words of this statute, per legem terræ, it will be proper, before I quit this head, to say something of other kinds of courts which do not admit this method of trial; which, yet, have been received, and allowed authority in England; and whose proceedings, however different from those of the common law, are justified by the same words, per legem terræ. These are the courts ecclesiastical, maritime, and military.
If we trace back the origin of ecclesiastical jurisdictions, we shall find its source in that advice of St. Paul, who reproves the new christians for scandalising their profession, by carrying on law-suits against each other before heathen judges, and recommends their leaving all matters in dispute between them to the decision of the Ecclesiæ, or the congregation of the faithful. In the fervour of the zeal of these times, this counsel was soon followed as a law. The heathen tribunals scarce ever heard of any of their controversies. They were all carried before the bishop, who, with his clergy, presided in the congregation; and who, from the deference the laity paid them, became at length the sole judges, as, in after ages, the bishop became sole judge, to the exclusion of his clergy. These judges, however, being, properly speaking, only arbitrators, had no coercive power to enforce their judgments. They were obliged, therefore, to make use of that only means they had of bringing the refractory to submission, namely, excluding them from the rights of the church, and warning other Christians against their company, and indeed, it was an effectual one; for what could a Christian, despised and abhorred by the heathen, and shut out from the commerce of his brethren, do, but submit? Besides, if he was really a Christian, this proceeding seems founded on the words of the Apostle, “He that will not hear the ecclesia, the congregation, let him be unto thee as an heathen[402].”
Thus was excommunication the only process in the primitive church to inforce obedience, as it is in ecclesiastical courts at this day; though, considering the many petty and trifling occasions on which they are, of necessity, obliged to have recourse to these arms, having no other, and the many temporal inconveniencies it may be attended with, it has been the opinion of many wise and learned, as well as of many pious men, that it would not be unworthy the attention of the legislature to devise some other coercive means for the punishment of contempts, and to restrain excommunication to extraordinary offences only. Though, if we consider that the jealousy which the temporal courts, and the laity in general, so justly conceived of these judicatures in the time of popery, hath not even yet entirely subsided, there is little prospect that this or any other regulation, to amend their proceedings, and others they do want, will be attempted.