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vious to the marriage, and was such a one as rendered the marriage un lawfui ab initic, as consanguinity, corporal imbecility, or the 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 separation 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 et 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 allowance 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 husband 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 [95] amounts to a forfeiture of her *dower after his death, it is also a sufficient reason why she should not be partaker of his estate

when living.

3. Testamentary causes (11) are the only remaining species belonging to the ecclesiastical jurisdiction (12); which, as they are certainly of a

(11) In New-York matters relating to the estates of deceased persons are decided by the surrogate. See 2 R. S. 56, &c.

(12) 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. 1 P. 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 1 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 wi!! obtained by fraud, the ecclesiastical court alone can revoke it, 2 Vern. 8. 1 P. Wms 388; and a person cannot be convicted torging 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 trustee, in respect of such probate, or oblige him to consent to a repeal or revocation of it in the court from which it was grant ed. 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 ex tend to affect interests arising out of real pro perty, when those interests are less than freehold; as in devises of terms for years, or of rents payable out of them, for such disposi tions 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 com mon law have assumed jurisdiction of testa mentary matters, and permitted actions to ha instituted for the recovery of legacies une

mere temporal nature (x), may seem at first view a little oddly ranked arnong 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 (2); and after wards transferred to the jurisdiction of the church, by the favour of the crown, as a natural consequence of granting to the bishops the adminis tration of intestates' effects.

This spiritual jurisdiction of testamentary causes is a peculiar constitu tion 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 century. 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 consti tutions 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 origi. nally in matters testamentary non ullam habebant episcopi authoritatem, praeter eam quam a rege acceptam referebant. Jus testamenta pro


bandi non *habebant: administrationis potestatem cuique delegare [*96 | 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 ordinatum 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 (ƒ). But this must only be understood to mean that i hath not always had this prerogative: for certainly it is of very high anti

(z) Warburt. alliance, 173.

(y) Book II. ch. 32.

2) Hickes's Disser. Epistolar. p. 8. 58 (a) Provincial. l. 3, t. 13, fol. 176

b) Ibid. 1. 3, t. 38, fol. 263.

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 udges, 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 is rules, incompetent to administer that complete justice to the parties which courts of equity

(c) cap. 23.

(d) See 9 Rep 38.

(e) fol. 263.

(f) Fitz. Abr. tit. testament, pl. 4. 2 Roll. Abr 217. 9 Rep. 37. Vaugh. 207.

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 brough 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 sug gested, that it should seem that upon an ex press promise and admission of assets, an ex ecutor may be sued. 2 Saund. by Patteson, 137. note a

quity. 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 tradition. 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 ecclesiae 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 maiestatem, agrees verbatim with Glanvil in this point (k).

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It appears that the foreign clergy were pretty early ambitious [*97] of this branch of power; but their attempts to assume it on the continent were effectually curbed by the edict of the emperor Jusun (1), which restrained the insinuation or probate of testaments (as for merly) to the office of the magister census: for which the emperor subjoins this reason; "absurdum et enim 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 therefore, 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 animae 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 lega cies (p). This jurisdiction, we have seen, is principally exercised with us [*98] in the consistory courts of every diocesan *bishop, and in the pre rogative court of the metropolitan, originally; and in the arches court and court of delegates by way of appeal. It is divisible into thres branches; the probate of wills, the granting of administrations, and the

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wing 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 ad verse 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 testamenta ry jurisdiction, the spiritual court administers redress herein, by compelling the executor to pay them. But in this lastase the courts of equity ex ercise 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. For, as it is beneath the dignity of the king's courts to bo merely ancillary to other inferior jurisdictions, the cause, when once brought there, receives there also its full determination (13).

These are the principal injuries for which the party grieved either must, or may, seek his remedy in the spiritual courts. But before I entirely dismiss this head, it may not be improper to add a short word concerning the method of proceeding in these tribunals, with regard to the redress of injuries.

It must (in the first place) be acknowledged, to the honour of the spiritual courts, that though they continue to this day to de- [*99 ] cide many questions which are properly of temporal cognizance, yet justice is in general so ably and impartially administered in those tribunals (especially of the superior kind) and the boundaries of their power are now so well known and established, that no material inconvenience at present arises from this jurisdiction still continuing in the ancient channel. And, should an alteration be attempted, great confusion would probably arise, in overturning long established forms, and new-modelling a course of proceedings that has now prevailed for seven centuries.

The establishment of the civil law process in all the ecclesiastical courts was indeed a masterpiece of papal discernment, as it made a coalition impracticable between them and the national tribunals, without manifest inconvenience and hazard. And this consideration had undoubtedly its weight in causing this measure to be adopted, though many other causes concurred. The time when the pandects of Justinian were discovered afresh, and rescued from the dust of antiquity, the eagerness with which they were studied by the popish ecclesiastics, and the consequent dissensions between the clergy and the laity of England, have formerly (7) been spoken to at large. I shall only now remark upon those collections, tha their being written in the Latin tongue, and referring so much to the will

(q) Book I. introd. ◊ 1.

(13) In addition to the relief before the surugate or a court of equity, in New-York, afer a year from the granting of letters testamentary or of adm nistration, the legatee or next of kin may rue the executor in the com

mon law courts if there be assets to pay him, and he first execute with sureties a bond of indemnity to the executor. (2 R. S. 114, § 10. &c.)

he prince and his delegated officers of justice, sufficiently recommended them to the court of Rome, exclusive of their intrinsic merit. To keep the laity in the darkest ignorance, and to monopolize the little science, which then existed, entirely among the monkish clergy, were deep-rooted principles of papal policy. And, as the bishops of Rome affected in all points to mimic the imperial grandeur, as the spiritual prerogatives were mould ed on the pattern of the temporal, so the canon law process was formed on the model of the civil law: the prelates embracing with the utmost ar dour a method of judicial proceedings, which was carried on in a language unknown to the bulk of the people, which banished the interven[*100] tion of a jury (that bulwark of *Gothic liberty) which placed an

arbitrary power of decision in the breast of a single man.

The proceedings in the ecclesiastical courts are therefore regulated ac⚫ cording to the practice of the civil and canon laws; or rather according to a mixture of both, corrected and new-modelled by their own particular usages, and the interposition of the courts of common law. For, if the proceedings in the spiritual court be ever so regularly consonant to the rules of the Roman law, yet if they be manifestly repugnant to the fundamental maxims of the municipal laws, to which upon principles of sound policy the ecclesiastical process ought in every state to conform (r) (as if they require two witnesses to prove a fact, where one will suffice at common law); in such cases a prohibition will be awarded against them (s). But, under these restrictions, their ordinary course of proceeding is (14); first, by citation, to call the party injuring before them. Then, by libel, libellus, a little book, or by articles drawn out in a formal allegation, to set forth the complainant's ground of complaint. To this succeeds the defendant's answer upon oath, when, if he denies or extenuates the charge, they proceed to proofs by witnesses examined, and their depositions taken down in writing, by an officer of the court. If the defendant has any circumstances to offer in his defence, he must also propound them in what is called his defensive allegation, to which he is entitled in his turn to the plaintiff's answer upon oath, and may from thence proceed to proofs as well as his antagonist. The canonical doctrine of purgation, where by the parties were obliged to answer upon oath to any matter, however crimi nal, that might be objected against them (though long ago overruled in the court of chancery, the genius of the English law having broken through the bondage imposed on it by its clerical chancellors, and asserted the doctrines of judicial as well as civil liberty), continued to the middle of the last century to be upheld by the spiritual courts; when the legislature was obliged to interpose, to teach them a lesson of similar mode [*101] ration. By the statute of 13 Car. II. c. 12. it is enacted, that it shall not be lawful for any bishop or ecclesiastical judge, to ten

(r) Warb. alliance, 179.

(14) The recent act, 53 Geo. III. c. 127. prohibits excommunication, and the writ de excommunicato capiendo as a mode of enforcing performance or obedience to ecclesiastical orders and decrees; and instead of the sentence of excommunication in those cases, the court is to pronounce the defendant contumacious, and the ecclesiastical judge is to send his significavit in the prescribed form to the chancery, from which a writ de contumace capiendo is to issue in the prescribed form and which is to

(s) 2 Roll. Abr. 300. 302.

have the same force as the ancient writ. There is a similar act as to Ireland. 54 Geo. III. c. 68. In other cases, not of disobedience to the orders and decrees of the court, there may be excommunication, and a writ de ex communicato capiendo as heretofore. In the proceedings under this statute, it must clearly appear, that the ecclesiastical court had jurisdiction, and that the form of proceedings has been duly observed. 5 Bar. &. Al 791. 2 Dowl. & R. 570. ante 87. note 1.

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