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[ *92) ing on the patrimony of the church, unless for necessary re

pairs (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, Ahe spiritual court has undoubted cognizance thereof (i); and a suit may be brought therein for non-payment of a rate made by the churchwardens for that purpose (5). And these are the principal pecuniary in- / juries, which are cognizable, or for which suits may be instituted, in ecclesiastical courts.

2. Matrimonial causes, 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, [*93) according to the humour or interest of the reigning pontiff: be

sides a thousand nice and difficult 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

(r) 1 Roll. Rep. 86. 11 Rep. 98. Godb 259. (v) Some of the impurest books, that are extant (s) 3 Bulstr. 158. 1 Roll. Rep. 335.

in any language, are those written by the popish (1) Circumspecte agatis. 5 Rep. 66.

clergy on the subjects of matrimony and divorce. (u) Warb. alliance, 173.

(5) The 53 Geo. III. c. 127. gives a sum- be litigated in the ecclesiastical court, the mary remedy by two justices for non-payment justices are not to proceed. 5 M. & S. 248. of church-rates not exceeding 101. If the rate

issue; who cannot so well defend the marriage, as the parties themselves, when both of them living might have done (v) (6).

Of matrimonial causes, one of the first and principal is, l. Causa jactitationis matrimonii ; when one of the parties boasts (7) 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 clandestine marriages, 26 Geo. II. c. 33. which [94] enacts, that for the future 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 matrimony whatsoever (8). 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 ecclesiastical 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. Divorces also, of which, and their several distinctions, we treated at large in a former book (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 (9), adultery, a perpetual disease, and the like (10); this unfitness or inability for the marriage state may be looked 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 the cause existed pre(u) Inst. 614.

() Book I. ch. 15.

(6) In New-York the court of Chancery cause, when it has become improper or imposhas cognizance of the subject of marriage, but sible for the parties to live together, and that only so far as to divorce entirely for adultery, intolerable ill temper was there considered to or to separate a mensa et thoro for the cruelly be a sufficient cause ; a position which, it of the husband, or to declare the marriage void was submitted by the Editor, was not tenable. for either of the following causes existing at Upon this interesting subject the reader is the time of the marriage, viz. I. That one of the referred to the eloquent decisions of sir parties had not attained the age of consent: 2. William Scott, from which it will appear, that one of the parties was then married to that a husband or a wife may sustain a suit another : 3. or was an idiot or lunatic : 4. or for a divorce on the ground of cruelty, even in gave consent through force or fraud : 5. or was a single instance, when it really endangers physically incapable of entering into the mar- life, limb, or health ; and that even words riage state. (2 R. S. 142, 146).

menacing such danger are sufficient ground: (7) But the boasting must be malicious. For but that mere insult, irritation, coldness, unwhere Lord Hawke had permitted the party kindness, ill temper, or even desertion, is not to assume herself to be Lady Hawke in his alone a sufficient ground for a divorce. Evans presence, and had introduced and acknow. v. Evans, 1 Hagg. Rep. 36. 364. 409. 458. 2 ledged her to be clothed with thai character, id. 154. 158. 2 Phil. Éc. C. 132. the court dismissed the suit. Lord Hawke v. (10) It has been determined by the court of Corri, 2 Dr. Hagg. 220.

delegates, that the public infamy of the hus(8) And see 4 Geo. IV. c. 76. 8. 27. ante, 1 band, arising from a judicial conviction of an book, 433. note 1.

attempt to commit an unnatural crime, is a (9) We have seen in the first book, page sufficient cause for the ecclesiastical courts to 440, 1. that it is stated, that a divorce a mensa decree a separation a mensa et thoro. Feb. et thoro, when marriage is just and lawful ab 1794. initio, is only allowed, for some supervenient



vious to the marriage, and was such a one as rendered the marriage unlawful ab initio, 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 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 of personal property, until the probate thereof estates of deceased persons are decided by the has been sealed by the ecclesiastical court. surrogate. See 2 R. S. 56, &c.

3 T. R. 127. (12) Com. Dig. Prohibition, G. 16. Al. Although a court of equity cannot set aside though the ecclesiastical courts have by length a will of personal estate, the probate of which of time acquired the original jurisdiction in has been obtained from the spiritual court; rebus testamentariis, courts of equity have ne. yet the court will interfere when a probate has vertheless obtained a concurrent jurisdiction been granted, by the fraud of the person obwith them in determinations upon personal be- taining it; and either conve the wrong-doer quests, as relief in those cases is generally into a trustee, in respect of such probate, or dependent upon a discovery and an account of oblige him to consent to a repeal or revoca. assets. And an executor being considered a tion of it in the court from which it was grant. trustee for the several legatees named in the ed. 1 Ves. 119. 284. 287. A court of equity testament, the execution of trusts is never re- will also interfere and prevent a person from fused by courts of equity, .1 P. Will. 544. taking an undue advantage by contesting the 575. These courts, indeed, in some other in- validity of a probate, when such person has stances which frequently occur upon the pre- acted under it, and admitted facts material to its sent subject, exercise a jurisdiction in exclu- validity. 1 Atk. 628. sion of the ecclesiastical, inasmuch as the re- The jurisdiction of the ecclesiastical courts lief given by the former, is more efficient than is confined to testaments merely, or, in other that administered by the latter. One of these words, to dispositions of personalty ; if, therecases happens, when a husband endeavours to fore, real estate be the subject of a devise to obtain payment of his wife's legacy, equity will be sold for payment of debts, or portions, these oblige him to make a proper settlement upon courts cannot hold plea in relation to such be. her, before a decree will be made for payment quests, but the proper_forum is a court of of the money to him ; but this the ecclesiasti. equity. Dyer, 151. b. Palm. 120. S. P. But cal court cannot do, therefore if the baron libel the ecclesiastical courts' jurisdiction may exin that court for his wife's legacy, the court of tend to affect interests arising out of real prochancery will grant an injunction to stay pro- perty, when those interests are less than freeceedings in it, he not having made any set. hold; as in devises of terms for years, or of tlement or provision for her. î Dick. Rep. 373. rents payable out of them, for such disposiAlso 1 Atk. 491. 516. 2 Atk. 420. Pre. Ch. tions relate to challels real only. 2 Keb. 8. 548. S. P. Another of those instances occurs, Cro. J. 279. Buls. 153. If a legatee alter the when legacies are given to infants ; for equity nature of his demand, and change it into a will protect their interests, and give proper di. debt or duty, as by accepting a bond from the rections for securing and improving the fund executor for payment of the legacy, it seems for their benefit, which could not be effected that the effect of the transaction will be, either in the ecclesiastical court. 1 Vern. 26. It to deprive the ecclesiastical court of its jurishas been already observed, that the probate of diction, or to give an option to the person enwills belongs exclusively to the ecclesiastical titled, to sue in that or in a temporal court, at court, except in the instance above adduced; his discretion. 2 Rol. R. 160." Yelv. 39. 8 whence it follows, that if a probate has been Mod. 327. granted of a will obtained by fraud, the eccle. Cases have occurred in which courts of com. siastical court alone can revoke it, 2 Vern. 8. mon law have assumed jurisdiction of testa. IP. Wms. 388; and a person cannot be con- mentary matters, and permitted actions to be viered of forging a will of a deceased person instituted for the recovery of legacies, upon


mere temporal nature (w), 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 (z); and afterwards transferred 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 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 constitutions of cardinal Othobon also testify, that this provisionolim 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 authoritatem, praeter eam quam a rege acceptam referebant. Jus testamenta probandi 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 (f ). But this must only be understood to mean that it hath not always had this prerogative: for certainly it is of very high anti

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(I) Warburt. alliance, 173.

(c) cap. 23 (y) Book II. ch. 32.

(d) See 9 Rep. 38. (z) Hickes's Disser. Epistolar. p. 8. 58.

(e) fol. 263. (a) Provincial. I. 3, t. 13, fol. 176.

(f) Fitz. Abr. tit. testament, pl. 4. 2 Roll. Abr. (6) Ibid. 1. 3, t. 38, fol. 263.

217. 9 Rep. 37. Vaugh. 207. proof of an express assumpsit or undertaking have the power, and are in the constant habit, by the executor to pay them. Sid. 45. li of doing. 5 Term Rep. K. B. 690. 7 T. R. Mod. 91. Ventr. 120. 2 Lev. 3. Cowp. 284. 667. 2 P. Wm. 641. Peake's C. N. P. 73. But it seems to be the opinion of modern There is one case in the books, where the dejudges, that this jurisdiction extends to cases claration states, that in consideration of a for. of specific legacies only; for when the execu- bearance by the plaintiff to sue, the executor tor assents to those bequests, the legal inte. promised to pay the legacy, and the court held, rests vest in the legatees, which enable them that the action might be maintained; but the to enforce their rights at law. 3 East R. 120. circumstance of that action being brought on It seems to be the better opinion, that when a promise, in consideration of forbearance, the legacy is not specific, but merely a gift shews that it was understood that the bare out of the general assets, and particularly when possession of assets was not alone sufficient. a married woman is the legatee, that a court 5 T. R. 693. 2 Lev. 3. But it has been sugof common law will not entertain jurisdiction gested, that it should seem that upon an exto compel payment of such a legacy, upon the press promise and adınission of assets, an exground that a court of common law is, from its

ecutor may be sued. 2 Saund. by Patteson, rules, incompetent to administer that complete 137. note a. justice to the parties which courts of equity

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 1. 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 (3).” 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 [ *97] of this branch of power; but their attempts to assume *it on the

continent were effectually curbed by the edict of the emperor Justin (1), which restrained the insinuation or probate of testaments (as formerly) to the office of the magister census: for which the emperor subjoins this reason ;

absurdum et enim clericis est, immu 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 three branches; the probate of wills, the granting of administrations, and the (g) 1. 5. de exceptionibus, c. 10.

cuniam suam non dederit vel dare disposuerit, uror (h) cap. 27. edit. Ozon.

sua, sive liberi, aut parentes et legitimi homines (i) 1. 7, c. 8.

ejus, eam pro anima ejus dividant, sicut eis melius (k) I. 2, c. 38.

visum fuerit. (Text. Řoffens. c. 34, p. 51.) (1) Cod. 1. 3. 41.

(0) Lord Lyttlet. Hen. II. vol. 1.536. Hoamne ad (m) Decretal. 3. 26. 17. Çilb. Rep. 204, 205. Gul. Neubr. 111. (n) Si quis baronum seu hominum meorum--pe- () Stiernhook, de jure Sueon. I. 3, c. 3.

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