By the statute or rather writ (f) of circumspecte agatis, (g) it is declared that the court christian shall not be prohibited from holding plea, “ si rector "petat versus parochianos oblationes et decimas debitas et consuetas :" so that if any dispute arises whether such tithes be due and accustomed, this cannot be determined in the ecclesiastical court, but before the king's courts of the common law; as such question affects the temporal inheritance, and the determination must bind the real property. But where the right does not come into question, but only the fact, whether or no the tithes allowed to be due are really subtracted or withdrawn, this is a tran sient personal injury, for which the remedy may properly be had in the spiritual court; viz. the recovery of the tithes, or their equivalent. By statute 2 & 3 Edw. VI. c. 13. it is enacted, that if any person shall carry off his predial tithes (viz. of corn, hay, or the like), before the tenth [80] part is duly set forth, or agreement is made with the proprietor, or shall willingly withdraw his tithes of the same, or shall stop to hinder the proprietor of the tithes or his deputy from viewing or carrying them away; such offender shall pay double the value of the tithes, with costs to be recovered before the ecclesiastical judge, according to the king's ecclesiastical laws. By a former clause of the same statute, the treble value of the tithes, so subtracted or withheld, may be sued for in the temporal courts, which is equivalent to the double value to be sued for in the ecclesiastical. For one may sue for and recover in the ecclesiastical courts the tithes themselves, or a recompense for them, by the ancient law; to which the suit for the double value is superadded by the statute. But as no suit lay in the temporal courts for the subtraction of tithes themselves, therefore the statute gave a treble forfeiture, if sued for there; in order to make the course of justice uniform, by giving the same reparation in one court as in the other. (h)5 However, it now seldom happens that tithes are sued for at all in the spiritual court; for if the defendant pleads any custom, modus, composition, or other matter whereby the right of tithing is called in question, this takes it out of the jurisdiction of the ecclesiastical judges: for the law will not suffer the existence of such a right to be decided by the sentence of any single, much less an ecclesiastical, judge; without the verdict of a jury. But a more summary method than either of recovering small tithes under the value of 40s. is given by statute 7 & 8 W. III. c. 6. by complaint to two justices of the peace; and," by another statute of the same year, c. 34. the same remedy is extended to all tithes withheld by. quakers under the value of ten pounds. Another pecuniary injury, cognizable in the spiritual courts, is the nonpayment of other ecclesiastical dues to the clergy; as pensions, mortuaries, f See Barrington, 123. S Pryn. Rec. 336. h 2 Inst. 250. g 13 Edw. I. st. 4. or rather 9 Edw. II. (5) This statute enacts, that every person shall justly divide, set out, yield, and pay all manner of predial tithes in such manner as they have been of right yielded and paid within forty years, or of right or custom ought to have been paid, before the making of that act, under the forfeiture of treble value of the tithes so carried away.-And in an action upon this statute, in which the declaration stated that the tithes were within forty years before the statute yielded and payable, and yielded and paid, it was held that evidence that the land had been as far as any witness knew in pasture, and that it was never known to pay in predial tithe, was not sufficient to defeat the action. The same action might also be supported to recover tithes of lands enclosed out of wastes, which never paid tithes before. Mitchell v. Walker, 5 T. R. 260.—Mr. Christian's note. (6) The 53 Geo. III. c. 127. extends the jurisdiction of the two justices to tithes, oblations, and compositions, of the value of 101.; and in respect of tithes and church-rates, due from quakers, to 50l, see statute and proceedlings, Burn J. Tithes. (7) See in general, Com. Dig. Prohibitions, G. II. compositions, offerings, and whatsoever falls under the denomination of surplice-fees, for marriages or other ministerial offices of the church: all which injuries are redressed by a decree for their actual payment. Besides which, all offerings, oblations, and obventions not exceed [90] ing the value of 40s. may be recovered in a summary way before two justices of the peace. (i) But care must be taken that these are real and not imaginary dues; for, if they be contrary to the common law, a prohibition will issue out of the temporal courts to stop all suits concerning them. As where a fee was demanded by the minister of the parish for the baptism of a child, which was administered in another place; (k) this, however authorized by the canon, is contrary to common right: for of common right, no fee is due to the minister even for performing such branches of his duty, and it can only be supported by a special custom; (7) but no custom can support the demand of a fee without performing them at all. For fees also, settled and acknowledged to be due to the officers of the ecclesiastical courts, a suit will lie therein: but not if the right of the fees is at all disputable; for then it must be decided by the common law. (m) It is also said, that if a curate be licensed, and his salary appointed by the bishop, and he be not paid, the curate has a remedy in the ecclesiastical court: (n) but, if he be not licensed, or hath no such salary appointed, or hath made a special agreement with the rector, he must sue for a satisfaction at common law; (n) either by proving such special agreement, or else by leaving it to a jury to give damages upon a quantum meruit, that is, in consideration of what he reasonably deserved in proportion to the service performed." Under this head of pecuniary injuries may also be reduced the several matters of spoliation, dilapidations, and neglect of repairing the church and things thereunto belonging; for which a satisfaction may be sued for in the ecclesiastical court. Spoliation is an injury done by one clerk or incumbent to another, in taking the fruits of his benefice without any right thereunto, but under a pretended title. It is remedied by a decree to account [91] for the profits so taken. This injury, when the jus patronatus or right of advowson doth not come in debate, is cognizable in the spiritual court: as if a person first presents A to a benefice, who is instituted and inducted thereto; and then, upon pretence of a vacancy, the same patron presents B to the same living, and he also obtains institution and induction. Now, if the fact of the vacancy be disputed, then that clerk who is kept out of the profits of the living, whichever it be, may sue the other in the spiritual court for spoliation, or taking the profits of his benefice. And it shall there be tried, whether the living were, or were not vacant: upon which the validity of the second clerk's pretensions must depend. (0) But if the right of patronage comes at all into dispute, as if one patron presented A, and another patron presented B, there the ecclesiastical court hath no cognizance, provided the tithe sued for amount to a fourth part of the value of the living, but may be prohibited at the instance of the patron i Stat. 7 & 8 W. III. c. 6. k Salk. 332. 1 Ibid. 334. Lord Raym. 450. 1558. Figz. 55. m 1 Ventr. 165. n 1 Burn. eccl. law. 438. (8) That such an action is sustainable, see Cowp. R. 457.; Dougl. 14.; Burn Ecc. L. Curate. The amount of the salary of a curate of a non-resident clergyman is, by 57 Geo. III. c. 99. under the control of the bishop, and any agreement contrary to the act is void, and the bishop may enforce payment of arrears of fixed salary. by the king's writ of indicavit. (p) So also if a clerk, without any colour of title, ejects another from his parsonage, this injury must be redressed in the temporal courts: for it depends upon no question determinable by the spiritual law (as plurality of bepefices or no plurality, vacancy or no vacan. cy,) but is merely a civil injury. For dilapidations, which are a kind of ecclesiastical waste, either voluntary, by pulling down; or permissive, by suffering the chancel, parsonage. house, and other buildings thereunto belonging, to decay; an action also lies, either in the spiritual court by the canon law, or in the courts of common law, (q) and it may be brought by the successor against the predecessor, if living, or, if dead, then against his executors. It is also said to be good cause of deprivation, if the bishop, parson, vicar, or other ecclesiasti cal person, dilapidates the buildings, or cuts down timber growing on [92] the patrimony of the church, unless for necessary repairs: (r) and that a writ of prohibition will also lie against him in the courts of common law. (s) By statute 13 Eliz. c. 10. if any spiritual person makes over or alienates his goods with intent to defeat his successors of their remedy for dilapidations, the successor shall have such remedy against the alienee, in the ecclesiastical court, as if he were the executor of his predecessor. And by statute 14 Eliz. c. 11. all money recovered for dilapidations, shall within two years be employed upon the buildings, in respect whereof it was recovered, on penalty of forfeiting double the value to the crown. As to the neglect of reparations of the church, church-yard, and the like, the spiritual court has undoubted cognizance thereof; (t) 10 and a suit may be brought therein for non-payment of a rate made by the churchwardens for that purpose." And these are the principal pecuniary injuries, which are cognizable, or for which suits may be instituted, in ecclesiastical courts. 11 2. Matrimonial causes, 12 or injuries respecting the rights of marriage, are another, and a much more undisturbed, branch of the ecclesiastical jurisdiction. Though, if we consider marriages in the right of mere civil contracts, they do not seem to be properly of spiritual cognizance. (u) But the Romanists having very early converted this contract into a holy sacramental ordinance, the church of course took it under her protection, upon the division of the two jurisdictions. And, in the hands of such able politicians, it soon became an engine of great importance to the papal scheme of an universal monarchy over Christendom. The numberless canonical impediments that were invented, and occasionally dispensed with, by the holy see, not only enriched the coffers of the church, but gave it a vast ascendant over princes of all denominations; whose marriages were sanctified or reprobated, their issue legitimated or bastardized, and the succession to their thrones established or rendered precarious, according to the humour or in[93] terest of the reigning pontiff: besides a thousand nice and difficult p Circumspecte agatis; 13 Edw. I. st. 4. Arctic. Cleri. 9 Edw. II. c. 2. F. N. B. 45. q Cart. 224. 3 Lev. 268. r 1 Roll. Rep. 86. 11 Rep. 98. Godb. 259. s 3 Bulstr. 153. 1 Roll. Rep. 335. (9) See Buru Ec. L. tit. Dilapidation. Lev. 268. 1 Lutw. 116. 4 M. & S. 183. 57 Geo. III. c. 99. s. 14. enables bishops (10) Com. Dig. Prohibition, G. 2. Willes Rep. 421. 3 Wooddes. 205. 2 T. R. 636. 3 Vin. Ab. Dilapidation, 15. Wats. Ec. L. ch. 39. The to compel non-resident clergymen to repair. (11) The 53 Geo. III. c. 127. gives a summary remedy by two justices for non-payment of church-rates not exceeding 10. If the rate be litigated in the ecclesiastical court, the justices are not to proceed. 5 M. & S. 248. (12) Com. Dig. prohibition, G, 15. Burn Ecc. L. Marriage. scruples, with which the clergy of those ages puzzled the understandings and loaded the consciences of the inferior orders of the laity; and which could only be unravelled and removed by these their spiritual guides. Yet, abstracted from this universal influence, which affords so good a reason for their conduct, one might otherwise be led to wonder, that the same authority, which enjoined the strictest celibacy to the priesthood, should think them the proper judges in causes between man and wife. These causes indeed, partly from the nature of the injuries complained of, and partly from the clerical method of treating them, (v) soon became too gross for the modesty of a lay tribunal. And causes matrimonial are now so peculiarly ecclesiastical, that the temporal courts will never interfere in controversies of this kind, unless in some particular cases. As if the spiritual court do proceed to call a marriage in question after the death of either of the parties; this the courts of common law will prohibit, because it tends to bastardize and disinherit the issue; who cannot so well defend the marriage, as the parties themselves, when both of them living might have done. (u) Of matrimonial causes, one of the first and principal is, 1. Causa jactitationis matrimonii; when one of the parties boasts or gives out that he or she is married to the other, whereby a common reputation of their matrimony may ensue. On this ground the party injured may libel the other in the spiritual court; and, unless the defendant undertakes and makes out a proof of the actual marriage, he or she is enjoined perpetual silence upon that head; which is the only remedy the ecclesiastical courts can give for this injury. 2. Another species of matrimonial causes was, when a party contracted to another brought a suit in the ecclesiastical court to compel a celebration of the marriage in pursuance of such contract; but this branch of causes is now cut off entirely by the act for preventing clandes tine marriages, 26 Geo. II. c. 33. which enacts, that for the future [ 94 ] no suit shall be had in any ecclesiastical court, to compel a celebration of marriage in facie ecclesiae, for or because of any contract of matri. mony whatsoever. 3. The suit for restitution of conjugal rights is also another species of matrimonial causes; which is brought whenever either the husband or wife is guilty of the injury of subtraction, or lives separate from the other without any sufficient reason; in which case the ecclesiasti. cal jurisdiction will compel them to come together again, if either party be weak enough to desire it, contrary to the inclination of the other. 4. Di vorces also, of which, and their several distinctions, we treated at large in a former volume, (w) are causes thoroughly matrimonial, and cognizable by the ecclesiastical judge. If it becomes improper, through some supervenient cause arising ex post facto, that the parties should live together any longer; as through intolerable cruelty, adultery, a perpetual disease, and the like; 14 15 this unfitness or inability for the marriage state may be looked Some of the impurest books, that are extant in any language, are those written by the popish clergy on the subjects of matrimony and divorce. 13 u Inst. 614. [ante, 1 Book, 434. n. 6 ] w Book I. ch. 15. (13) And see 4 Geo. IV. c. 76. s. 27. ante, 1 Book, 433. note (1.) (14) We have seen in the first Book, page 440, 1. that it is stated, that a divorce a mensa e thoro, when marriage is just and lawful ab initio, is only allowed for some supervenient cause, when it has become improper or impossible for the parties to live together, and that intolerable (15) It has been determined by the court of delegates, that the public infamy of the husband, arising from a judicial conviction of an attempt to commit an unnatural crime, is a sufficient cause for the ecclesiastical courts to decree a separation a mensa et thoro. Feb. 1794.--Mr. Christian's note. upon as an injury to the suffering party; and for this the ecclesiastical law administers the remedy of separation, or a divorce a mensa et thoro. But if ill temper was there considered to be a sufficient cause; a position which, it was submitted by the Editor, was not tenable. See note 86. Upon this interesting subject it may be acceptable to the reader to collect some of the eloquent decisions of Sir William Scott, from which it will appear, that a husband or a wife may sustain a suit for a divorce on the ground of cruelty, even in a single instance, when it really endangers life, limb, or health; and that even words menacing such danger are sufficient ground: but that mere insult, irritation, coldness, unkindness, ill temper, or even desertion, is not alone a sufficient ground for a divorce. In Evans v. Evans, 1 Hagg. Rep. 36. Sir William Scott proceeds thus:"The law has said, that married persons shall not be legally separated upon the mere disinclination of one or both to cohabit together. The disinclination must be founded upon reasons which the law approves. To vindicate the policy of the law is no necessary part of the office of a judge; but if it were, it would not be difficult to shew that the law in this respect has acted with its usual wisdom and humanity, with that true wisdom, and that real humanity, that regards the general interests of mankind. For though in particular cases, the repugnance of the law to dissolve the obligations of matrimonial cohabitation, may operate with great severity upon individuals; yet it must be carefully remembered, that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together except for a few reasons known to the law, they learn to soften by mutual accommodation, that yoke which they know they cannot shake off; they become good husbands and good wives from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes. If it were once understood, that upon mutual disgust married persons might be legally separated, many couples who now pass through the world with mutual comfort, with attention to their common offspring, and to the moral order of civil society, might have been at this moment living in a state of mutual unkindness-in a state of estrangement from their common offspring-and in a state of the most licentious and unreserved immorality. In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good. "That the duty of cohabitation is released by the cruelty of one of the parties is admitted, but the question occurs, What is cruelty? In the present case it is hardly necessary for me to define it, because the facts here complained of are such as fall within the most restricted definition of cruelty: they affect not only the comfort, but they affect the health, and even the life of the party. I shall therefore decline the task of laying down a direct definition. This however must be understood, that it is the duty of courts, and consequently the inclination of courts, to keep the rule extremely strict. The causes must be grave and weighty, and such as shew an absolute impossibility that the duties of the married life can be discharged. In a state of personal danger no duties can be discharged; for the duty of self-preservation must take place before the duties of marriage, which are secondary both in commencement and in obligation; but what falls short of this is with great caution to be admitted. The rule of "per quod consortium amittitur" is but an inadequate test, for it still remains to be inquired what conduct ought to produce that effect? whether the consortium is reasonably lost? and whether the party quitting has not too hastily abandoned the consortium ? "What merely wounds the mental feelings is in few cases to be admitted, where they are not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty; they are high moral offences in the marriage state undoubtedly, not innocent surely in any state of life, but still they are not that cruelty against which the law can relieve. Under such misconduct of either of the parties, for it may exist on the one side as well as on the other, the suffering party must bear in some degree the consequences of an injudicious connexion; must subdue by decent resistance or by prudent conciliation; and if this cannot be done, both must suffer in silence. And if it be complained that by this inactivity of the courts much injustice may be suffered, and much misery produced, the answer is, that courts of justice do not pretend to furnish cures for all the miseries of human life. They redress or punish gross violations of duty, but they go no further; they cannot make men virtuous; and as the happiness of the world depends upon its virtue, there may be much unhappiness in it which human laws cannot undertake to re move. "Still less is it cruelty, where it wounds not the natural feelings, but the acquired feelings arising from particular rank and situation; for the court has no scale of sensibilities, by which it can guage the quantum of injury done and felt; and therefore, though the court will not absolutely exclude considerations of that sort, where they are stated merely as matter of aggravation, yet they cannot constitute cruelty where it would not otherwise have existed: of course, the denial of little indulgencies and particular accommodations, which the delicacy of the world is apt to number amongst its necessaries, is not cruelty. It may, to be sure, be a harsh thing to refuse the use of a carriage, or the use of a servant: it may in many cases be extremely unhandsome, extremely disgraceful to the character of the husband; but the ecclesiastical court does not look to such matters; the great ends of marriage may very well be carried on without them ; and if people will quarrel about such matters, and which they certainly may do in many cases with a great deal of acrimony, and sometimes with much reason, they yet must decide such matters as well as they can in their own domestic forum. |