Chapter 40

How the Judiciary Forms were borrowed from the Decretals

March 8, 2020

The judicial forms of the canon law were preferred to those of the Roman law because they constantly had before them the ecclesiastic courts which followed the forms of the canon law.

They knew of no court that followed those of the Roman law. Besides, the limits of the spiritual and temporal jurisdiction were then very little understood.

Some people sued and were tried indifferently in either court. It seems‡ as if the temporal jurisdiction reserved no other cases exclusively to itself than the judgment of feudal matters∥, and of such crimes committed by laymen as did not relate to religion.

For§ if on the account of conventions and contracts, they had occasion to sue in a temporal court, the parties might of their own accord, proceed before the spiritual tribunals; and as the latter had not a power to oblige the temporal court to execute the sentence, they commanded submission by means of excommunications.

Under those circumstances, when they wanted to change the course of proceedings in the temporal court, they took that of the spiritual tribunals, because they knew it; but did not meddle with that of the Roman law, by reason, they were strangers to it= for in point of practice, people know only what is really practised.

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