28.40. 40. In what Manner the judiciary Forms were borrowed from the
Decretals.
But how comes it, some will ask, that when the Institutions
were laid aside, the judicial forms of the canon law should be preferred
to those of the Roman? It was because they had constantly before their
eyes the ecclesiastic courts, which followed the forms of the canon law,
and they knew of no court that followed those of the Roman law. Besides,
the limits of the spiritual and temporal jurisdiction were at that time
very little understood; there were people who sued indifferently
[290]
and causes that were tried indifferently, in either court.
[291]
It
seems
[292]
as if the temporal jurisdiction reserved no other cases
exclusively to itself than the judgment of feudal matters,
[293]
and of
such crimes committed by laymen as did not relate to religion. For
[294]
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.
Footnotes
[290]
Beaumanoir, chap. 11, p. 58.
[291]
Widows, croises, &c. — Ibid.
[292]
See the whole eleventh chapter of Beaumanoir.
[293]
The spiritual tribunals had even laid hold of these, under the
pretext of the oath, as may be seen by the famous Concordat between
Philip Augustus, the clergy, and the barons, which is to be found in the
ordinances of Laurire.
[294]
Beaumanoir, chap. 11, p. 60.
