the cause existed previous to the marriage, and was such a one as rendered the marriage unlawful ab initio, as consanguinity, corporal imbecility, or the "These are negative descriptions of cruelty; they shew only what is not cruelty, and are "yet perhaps the safest definitions which can be given under the infinite variety of possible cases that may come before the court. But if it were at all necessary to lay down an affirmative rule, I take it that the rule cited by Dr. Bevin from Clarke and the other books of practice, is a good general outline of the canon law, the law of this country, upon this subject. In the older cases of this sort, which I have had an opportunity of looking into, I have observed, that the danger of life, limb, or health, is usually inserted as the ground upon which the court has proceeded to a separation. This doctrine has been repeatedly applied by the court in the cases that have been cited. The court has never been driven off this ground; has been always jealous of the inconvenience of departing from it, and I have heard no one case cited, in which the court has granted a divorce without proof given of a reasonable apprehension of bodily hurt. I say an apprehension, because assuredly the court is not to wait till the hurt is actually done; but the appre'hension must be reasonable: it must not be an apprehension arising merely from an exquisite and diseased sensibility of mind. Petty vexations applied to such a constitution of mind may certainly in time wear out the animal machine, but still they are not cases of legal relief; people must relieve themselves as well as they can by prudent resistance-by calling in the succours of religion, and the consolation of friends; but the aid of courts is not to be resorted to in such cases with any effect." Evans v. Evans, 1 Hagg. Rep. 36, 37, 38, 39, 40. "Marriage is the most solemn engagement which one human being can contract with another. It is a contract formed with a view not only to the benefit of the parties themselves, but to the benefit of third parties; to the benefit of their common offspring, and to the moral order of civil society. To this contract is superadded the sanctity of a religious vow. Mr. Evans must be told, that the obligations of this contract are not to be relaxed at the pleasure of one party; I may go further, they are not to be lightly relaxed even at the pleasure of both; for if two persons have pledged themselves, at the altar of God, to spend their lives together for purposes that reach much beyond themselves, it is a doctrine to which the morality of the law gives no countenance, that they may, by private contract, dissolve the bands of this solemn tie, and throw themselves upon society, in the undefined and dangerous characters, of a wife without a husband, and a husband without a wife. There are, undoubtedly, cases for which a separation is provided: but it must be lawfully decreed by public authority, and for reasons which the public wisdom approves. Mere turbulence of temper, petulance of manners, infirmity of body or mind, are not numbered amongst those causes: when they occur, their effects are to be subdued by management, if pos sible, or submitted to with patience; for the engagement was, to take for better, for worse; and painful as the performance of this duty may be, painful as it certainly is in many instances, which exhibit a great deal of the misery that clouds human life, it must be attempted to be sweetened by the consciousness of its being a duty, and a duty of the very first class and importance." Evans v. Evans, 1 Hagg. Rep. 119. "I can never make desertion a ground of separation, though, in conjunction with acts of cruelty, it frequently is; and though it may be thought hard to send a wife back to a husband, who has given her such a proof of alienated affections, yet the court does not send her back without due care for her reception; for the monition is, not only that he shall take her back, but that he shall treat her with conjugal kindness; and though the court cannot interfere in the minute detail of family life, for much must ever be left to the consciences of individuals, yet the court will see its monitions so far obeyed, that the great obligations of conjugal duty shall be complied with." Evans v. Evans, 1 Hagg. Rep. 120. "The charges brought by the wife against the husband, consist partly of words of abuse and reproach, and partly of acts of a harsh and oppressive nature. Of words it is sufficient to say, that if they are words of mere present irritation, however reproachful, they will not enable this court to pronounce a sentence of separation. She must try to disarm them by the weapons of civility and kindness, and if they fail (as unfortunately they often will), the law of this country requires that she should submit to the misfortune, as one of the consequences of her own injudicious choice. Passionate words do not, according to the vulgar observation, break bones; and it is better that they should be borne with, than that domestic society should be broken up, and a husband and a wife thrown in loose characters upon the world. Words of menace, importing the actual danger of bodily harm, will justify the interposition of the court, as the law ought not to wait till the mischief is actually done. But the most innocent and deserving woman will sue, in vain, for its interference for words of mere insult, however galling: and still less will that interference be given, if the wife has taken upon herself to avenge her own wrongs of that kind, and to maintain a contest of retaliation." Oliver v. Oliver, 1 Hagg. Rep. 364, 365. "This is a suit instituted by the husband for separation, by reason of cruelty, and harsh and violent treatment, alleged against the wife. The ecclesiastical court is in general averse to relax in any degree the duties of the contract of marriage, and particularly to release married parties from the obligation of cohabiting together. It will not do so for mere words of abuse, however reproachful. The persons of both parties however must be protected from violence, and I cannot accede to what has been said in argument, that the court should wait till there has been actual violence of such a nature as may endanger life. It is not to pause till a tragical event has taken place-words of menace, if accompanied with probability of bodily violence, will be sufficient. It may be enough if they are such as inflict indignity and threaten pain. It will be the duty of VOL. II. 10 like; in this case the law looks upon the marriage to have been always null and void, being contracted in fraudem legis, and decrees not only a separa. tion from bed and board, but a vinculo matrimonii itself." 5. The last species of matrimonial causes is a consequence drawn from one of the species of divorce, that a mensa thoro; which is the suit for alimony, a term which signifies maintenance: which suit the wife, in case of separation, may have against her husband, if he neglects or refuses to make her an al lowance suitable to their station in life. This is an injury to the wife, and the court christian will redress it by assigning her a competent maintenance, and compelling the husdand by ecclesiastical censures to pay it. But no alimony will be assigned in case of a divorce for adultery on her part; for as that amounts to a forfeiture of her dower after his death, it is also [95] a sufficient reason why she should not be partaker of his estate when living."7 the court to say, that the suffering party is not obliged to continue in cohabitation under such treatment." Kirkman v. Kirkman, 1 Hagg. Rep. 409. "The law does not require that there should be many acts. The court has expressed an indisposition to interfere on account of one slight act, particularly between persons who have been under long cohabitation; because if only one such instance of ill-treatment, and that of a slight kind, occurs in many years, it may be hoped and presumed that it will not be repeated. But it is only on this supposition that the court forbears to interpose its protection, even in the case of single act; because if one act should be of that description, which should induce the court to think, that it is likely to occur again, and to occur with real suffering, there is no rule that should restrain it from considering that to be fully sufficient to authorize its interference. It is not necessary that the conduct of the wife should be entirely without blame. For the reason which would justify the imputation of blame to the wife, will not justify the ferocity of the husband." Holden v. Holden, 1 Hagg. Rep. 458, 459. "The court is not in the habit of interfering in ordinary domestic quarrels; and there may be much unhappiness from unkind treatment, or violent and abusive language, in which parties can obtain no relief in this form, but must be left to correct the intemperance of which they complain, by such private means as they cau employ for the purpose. There must be something which renders cohabitation unsafe, or is likely to be attended with injury to the person, or to the health, of the party, in order to sustain an application to this court. Words of menace may partake of either of these characters; they may be merely the language of passion, or they may be the expression of determined malignity, which, if they are likely to be carried into effect, may warrant the court to interpose, and prevent the actual mischief which is thus threatened. Where such violence of language is accompanied with blows, it is a more aggravated case, and the mischief is actually inflicted." Harris v. Harris, 2 Hagg. Rep. 148, 149. "Suits of this nature are usually brought by the wife, as the more infirm party, though they may be also brought on the part of the husband, and have been so brought, with effect, in cases before this court. When the wife is the complainant, presumptions of injury may be derived from the comparative weakness of her constitution. It is not, however, impossible that she may have been the aggressor, and, by provocatious, have brought upon herself the ill-treatment complained of; when that appears, she is not entitled to demand relief from the court; it is the consequence of her own conduct, and she has the remedy in her own hands, by an alteration of her conduct, and if the law was not backward in its interferences in such a case, it would furnish the wife with a very short course to a sentence of separation, if she wished it, for she would have nothing to do but to provoke ill-treatment by ill-behaviour. I do not mean by this, that every slight failure of duty, on the part of the wife, is to be visited by intemperate violence on the part of the husband. The correction of such failings must be softened, by a due recollection of human infirmity, and of the tender relation subsisting between such parties; and there may be cases of that kind, provoked by the wife, but unduly visited by the husband, in which the court would not decline to interfere. But if the conduct of the wife is inconsistent with the duties of that character, and provokes the just indignation of the husband, and causes danger to her person, she must seek the remedy for that evil, so provoked, in the change of her own manners. There is reason to hope that such a remedy would not be ineffectual, but should it prove otherwise, it may then be the proper opportunity for application to the powers of the court." Waring v. Waring, 2 Hagg. Rep. 154, 155. 2 Phil. Ec. C. 132. S. C. To entertain personal scuffles with a woman and a wife is a cruel necessity; but a man may protect and defend his own life and liberty. It is a difficult task to return blows, let them come from whom they may, with words only. Force may be opposed, but in some cases must be, opposed by force; but supposing that some portion of blame is imputable to the husband, there is enough to warrant the court to pronounce that a wife who is guilty of such conduct, is not entitled to complain." Waring v. Waring, 2 Hagg. Rep. 168. (16) Ante, 1 Book, 440. (17) Ante, 1 Book, 441, 2. Chitty. 18 8. Testamentary causes are the only remaining species belonging to the ecclesiastical jurisdiction; which, as they are certainly of a mere tem. poral nature, (x) may seem at first view a little oddly ranked among matters of a spiritual cognizance. And indeed (as was in some degree observed in a former book) (y) they were originally cognizable in the king's courts of common law, viz. the county courts; (*) and afterwards transferred z Hicke's Disser. Epistolar. p. 8. 58. x Warburt. alliance. 173. y Book II. ch. 32. (18) Com. Dig. Prohibition, G. 16. Although the ecclesiastical courts have by length of time acquired the original jurisdiction in rebus testamentariis, courts of equity have nevertheless obtained a concurrent jurisdiction with them in determinations upon personal bequests, as relief in those cases is generally dependent upon a discovery and an account of assets. And an executor being considered a trustee for the several legatees named in the testament, the execution of trusts is never refused by courts of equity. 1P. Will. 544. 575. These courts, indeed, in some other instances which frequently occur upon the present subject, exercise a jurisdiction in exclusion of the ecclesiastical, inasmuch as the relief given by the former, is more efficient than that administered by the latter. One of these cases happens, when a husband endeavours to obtain payment of his wife's legacy, equity will oblige him to make a proper settlement upon her, before a decree will be made for payment of the money to him; but this the ecclesiastical court cannot do, therefore if the baron libel in that court for his wife's legacy, the court of chancery will grant an injunction to stay proceedings in it, he not having made any settlement or provision for her. 1 Dick. Rep. 373. Also I Atk. 491. 516. 2 Atk. 420. Pre. Ch. 548. S. P. Another of those instances occurs, when legacies are given to infants; for equity will protect their interests, and give proper directions for securing and improving the fund for their benefit, which could not be effected in the ecclesiastical court. 1 Vern. 26. It has been already observed, that the probate of wills belongs exclusively to the ecclesiastical court, except in the instance above adduced; whence it follows, that if a probate has been granted of a will obtained by fraud, the ecclesiastical court alone can revoke it, 2 Vern. 8. 1 P. Wms. 388.; and a person cannot be convicted of forging a will of a deceased person of personal property, until the probate thereof has been sealed by the ecclesiastical court. 3 T. R. 127. Although a court of equity cannot set aside a will of personal estate, the probate of which has been obtained from the spiritual court; yet the court will interfere when a probate has been granted, by the fraud of the person obtaining it; and either convert the wrong-doer into a trus tee, in respect of such probate, or oblige him to consent to a repea! or revocation of it in the court from which it was granted. 1 Ves. 119. 284. 287. A court of equity will also interfere and prevent a person from taking an undue advantage by contesting the validity of a probate, when such person has acted under it, and admitted facts material to its validity. 1 Atk. 628. The jurisdiction of the ecclesiastical courts is confined to testaments merely, or, in other words, to dispositions of personalty; if, therefore, real estate be the subject of a devise to be sold for payment of debts, or portions, these courts cannot hold plea in relation to such bequests, but the proper forum is a court of equity, Dyer, 151. b. Palm. 120. S. P. But the ecclesiastical courts' jurisdiction may extend to affect interests arising out of real property, when those interests are less than freehold ; as in devises of terins for years, or of rents payable out of them, for such dispositions relate to chattels real only. 2 Keb. 8. Cro. J. 279. Buls. 153. If a legatee alter the nature of his demand, and change it into a debt or duty, as by accepting a bond from the executor for payment of the legacy, it seems that the effect of the transaction will be, either to deprive the ecclesiastical court of its jurisdiction, or to give an option to the person entitled, to sue in that or in a temporal court, at his discretion. 2 Rol. R. 160. Yelv. 39. 8 Mod. 327. Cases have occurred in which courts of common law have assumed jurisdiction of testamentary matters, and permitted actions to be instituted for the recovery of legacies, upon proof of an express assumpsit or undertaking by the executor to pay them. Sid. 45. 11 Mod. 91. Ventr. 120. 2 Lev. 3. Cowp. 284. But it seems to be the opinion of modern judges, that this jurisdiction extends to cases of specific legacies only; for when the executor assents to those bequests, the legal interests vest in the legatees, which enable them to enforce their rights at law. 3 East, R. 120. It seems to be the better opinion, that when the legacy is not specific, but merely a gift out of the general assets, and particularly when a married woman is the legatee, that a court of common law will not entertain jurisdiction to compel payment of such a legacy, upon the ground that a court of common law is, from its rules, incompetent to administer that complete justice to the parties which courts of equity have the power, and are in the constant habit, of doing. 5 Term Rep. K. B. 690. 7 T. R. 667. 2 P. Wm. 641. Peake's C. N. P. 73. There is one case in the books, where the declaration states, that in consideration of a forbearance by the plaintiff to sue, the executor promised to pay the legacy, and the court held, that the action might be maintained; but the circumstance of that action being brought on a promise, in consideration of forbearance, shews that it was understood that the bare possession of assets was not alone sufficient. 5 T. R. 693. 2 Lev. 3. But it has been suggested, that it should seem that upon an express promise and admission of assets, an executor may be sued. 2 Saund. by Patteson, 137, note a. Chitty. to the jurisdiction of the church, by the favour of the crown, as a natural consequence of granting to the bishops the administration of intestates' effects. This spiritual jurisdiction of testamentary causes is a peculiar constitution of this island; for in almost all other (even in popish) countries all matters testamentary are under the jurisdiction of the civil magistrate. And that this privilege is enjoyed by the clergy in England, not as a matter of ecclesiastical right, but by the special favour and indulgence of the municipal law, and as it should seem by some public act of the great council, is freely acknowledged by Lindewode, the ablest canonist of the fifteenth cen. tury. Testamentary causes, he observes, belong to the ecclesiastical courts "de consuetudine Angliae, et super consensu regio et suorum procerum in “talibus ab antiquo concesso." (a) The same was, about a century before, very openly professed in a canon of archbishop Stratford, viz. that the administration of intestates' goods was "ab olim" granted to the ordinary, "consensu regio et magnatum regni Angliae." (b) The constitutions of cardinal Othobon also testify, that this provision" olim a praelatis cum "approbatione regis et baronum dicitur emanasse." (c) And archbishop Parker, (d) in queen Elizabeth's time, affirms in express words, that originally in matters testamentary non ullam habebant episcopi autho[96] "ritatem, praeter eam quam a rege acceptam referebant. Jus tes"tamenta probandi non habebant: administrationis potestatem cuique delegare non poterant." At what period of time the ecclesiastical jurisdiction of testaments and intestacies began in England, is not ascertained by any ancient writer: and Lindewode (e) very fairly confesses, "cujus regis temporibus hoc ordi"natum sit, non reperio." We find it indeed frequently asserted in our common law books, that it is but of late years that the church hath had the probate of wills. (f) But this must only be understood to mean that it hath not always had this prerogative: for certainly it is of very high antiquity. Lindewode, we have seen, declares that it was "ab antiquo;" Stratford, in the reign of King Edward III., mentions it as "ab olim ordinatum ;” and cardinal Othobon, in the 52 Hen. III., speaks of it as an ancient tra. dition. Bracton holds it for clear law in the same reign of Henry III., that matters testamentary belonged to the spiritual court. (g) And, yet earlier, the disposition of intestates' goods "per visum ecclesiae" was one of the articles confirmed to the prelates by king John's magna carta. (h) Matthew Paris also informs us, that king Richard I. ordained in Normandy "quod distributio rerum quae in testamento relinquuntur autoritate eccle"siae fiet." And even this ordinance of king Richard, was only an introduction of the same law into his ducal dominions, which before prevailed in this kingdom; for in the reign of his father Henry II. Glanvil is express, that "si quis aliquid dixerit contra testamentum, placitum illud in curia "christianitatis audiri debet et terminari." (i) And the Scots book called regiam majestatem agrees verbatim with Glanvil in this point. (k) It appears that the foreign clergy were pretty early ambitious of this branch of power; but their attempts to assume it on the continent [97] were effectually curbed by the edict of the emperor Justin, (1) which restrained the insinuation or probate of testaments (as for b Ibid. l. 3. t. 33. fol. 263. c cap. 23. il. 7. c. 8. a Provincial. l. 3. t. 15. fol. 176. kl. 2. c. 38. merly) to the office of the magister census: for which the emperor subjoins this reason: "absurdum etenim clericis est, immo etiam opprobriosum, "si peritos se velint ostendere disceptationum esse forensium." But afterwards by the canon law (m) it was allowed that the bishop might compel by ecclesiastical censures the performance of a bequest to pious uses. And there. fore, as that was considered as a cause quae secundum canones et episcopales leges ad regimen animarum pertinuit, it fell within the jurisdiction of the spiritual courts by the express words of the charter of king William I., which separated those courts from the temporal. And afterwards, when king Henry I. by his coronation-charter directed that the goods of an intestate should be divided for the good of his soul, (n) this made all intestacies immediately spiritual causes, as much as a legacy to pious uses had been before. This therefore, we may probably conjecture, was the æra referred to by Stratford and Othobon, when the king, by the advice of the prelates, and with the consent of his barons, invested the church with this privilege. And accordingly in king Stephen's charter it is provided, that the goods of an intestate ecclesiastic shall be distributed pro salute ani. mae ejus, ecclesiae consilio; (o) which latter words are equivalent to per visum ecclesiae in the great charter of king John before mentioned. And the Danes and Swedes (who received the rudiments of christianity and ecclesiastical discipline from England about the beginning of the twelfth century) have thence also adopted the spiritual cognizance of intestacies, testaments, and legacies. (p) This jurisdiction, we have seen, is principally exercised with us in the consistory courts of every diocesan bishop, and in the prero- [98] gative court of the metropolitan, originally; and in the arches court and court of delegates by way of appeal. It is divisible into three branches; the probate of wills, the granting of administrations, and the suing for legacies. The two former of which, when no opposition is made, are granted merely ex officio et debito justitiae, and are then the object of what is called the voluntary, and not the contentious jurisdiction. But when a caveat is entered against proving the will or granting administration, and a suit thereupon follows to determine either the validity of the testament, or who hath a right to administer; this claim and obstruction by the adverse party are an injury to the party entitled, and as such are remedied by the sentence of the spiritual court, either by establishing the will or granting the administration. Subtraction, the withholding or detaining of legacies, is also still more apparently injurious, by depriving the legatees of that right, with which the laws of the land and the will of the deceased have invested them: and therefore, as a consequential part of testamentary jurisdiction, the spiritual court administers redress herein, by compelling the executor to pay them.19 But in this last case the courts of equity exercise a concurrent jurisdiction with the ecclesiastical courts, as incident to some other species of relief prayed by the complainant; as to compel the executor to account for the testator's effects, or assent to the legacy, or the like.19 For, as it is beneath the dignity of m Decretal. 3.26. 17: Gilb. Rep. 204. 205. n Si quis baronum seu hominum meorum-pecunium suam non dederit vel dare disposuerit, uxor sua, sive liberi, aut parentes et legitimi homines ejus, ears pro anima ejus dividant, sicut eis melius visum fuerit. (Text. Roffens, c. 34. p. 51.) o Lord Lyttlet. Hen. II. vol. i. 536. Hearne ad Gul. Neubr. 711. p Stiernhook de jure Sueon. l. 3. c. 8. (19) See ante, 95 note 18. |