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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 [*95] his death, it is also a sufficient reason why she should not be a partaker of his estate when living.

3. Testamentary causes are the only remaining species belonging to the ecclesiastical jurisdiction; which, as they are certainly of a mere temporal nature (2) 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) (a) they were originally cognizable in the king's courts of common law, viz., the county courts; (b) 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 Angliæ, et super consensu regio et suorum procerum in talibus ab antiquo concesso" (by the custom of England, and the consent of the king and his nobles anciently granted in such cases). (c) 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" (formerly) granted to the ordinary, "consensu regio et magnatum regni Anglia" (by the command of the king and the peers of the kingdom of England). (d) The constitutions of Cardinal Othobon also testify, that this provision "olim a prælatis cum approbatione regis et baronum dicitur emanasse" (is said to have emanated formerly from the prelates with the approbation of the king and barons), (e) And Archbishop Parker, (f) in Queen Elizabeth's time, affirms in express words, that originally in matters testamentary, "non ullam habebant episcopi authoritatem, præter eam quam a rege acceptam referbant. Jus testamenta probandi non habebant: administrationis potestatem cuique [*96] delegare non poterant" (the bishops had no other authority than what they received from the king. They had not the right of proving wills; neither could they grant the power of administration).

Origin of the jurisdiction.— At what period of time the ecclesiastical jurisdiction of testaments and intestacies began in England, is not ascertained by any ancient writer: and Lindewode (g) very fairly confesses, "cujus regis temporibus hoc ordinatum sit, non reperio" (I do not find in what king's reign this was ordained). We find it indeed frequently asserted in our common law books, that it is but

(z) Warburt, alliance. 173.

(b) Hickes's Disser. Epistolar. p. 8, 58. (d) Ibid. l. 3, t. 28, fol. 263. (e) Cap. 23.

(a) Book II. ch. 32. (c) Provincial. l. 3, t. 13, fol. 176. (f) See 9 Rep. 38. (g) Fol. 263.

of late years that the church hath had the probate of wills. (h) 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" (anciently); Stratford, in the reign of King Edward III, mentions it as an "ab olim ordinatum" (ordained formerly); 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, the matters testamentary belonged to the spiritual court. () And yet earlier, the disposition of intestates' goods "per visum ecclesia" (under the direction of the church) was one of the articles confirmed to the prelates by King John's magna carta. (1) Matthew Paris also informs us that King Richard I ordained in Normandy "quod distributio rerum quæ in testamento relinquuntur autoritate ecclesiæ fiet" (that a distribution of the things which are left by will, be made by the authority of the church). 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" (if any thing be averred against a will, that plea should be heard and determined in the spiritual court). (k) And the Scots book, called regiam majestatem, agrees verbatim with Glanvil in this point. ()

Reason for it.-It appears that the foreign clergy were pretty early ambitious of this branch of power; but their attempts to assume it on the continent were effectually curbed by the edict of the Emperor Justin, (m) which restrained the insin[*97] uation or probate of testaments (as formerly) to the office of the magister census (an officer for taking the value of estates); for which the emperor subjoins this reason: "Absurdum etenim clericis est, immo etiam opprobriosum, si peritos se velint ostendere disceptationum esse forensium." (For it is absurd, nay more, it is disgraceful for clergymen to wish to display their skill in forensic disputes.) But afterwards, by the canon law, (n) 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 quæ secundum canones et episcopales leges ad regimen animarum pertinuit (which belonged, according to the canon and episcopal laws, to spiritual matters), 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, (0) this made all intestacies immediately spiritual causes, as much as a legacy to pious uses had been before. This, therefore, we may prob

(h) Fitz. Abr. tit. testament, pl. 4. 2 Roll. Abr. 217. 9 Rep. 37.
(i). 5, de exceptionibus, c. 16. (D) Cap. 2, edit. Oxon.
(n) Decretal. 3, 26, 17.

(m) Cod. 1, 3, 41.

Vaugh. 207.

(k) l. 7, c. 8.
Gilb. Rep. 204, 205.

(1) 1. 2, c. 38. (0) Si quis baronum seu hominum meorum pecuniam suam non dederit vel dare disposuerit, uxor sua, sive liberi, aut parentes et legitimi homines ejus, eam pro anima ejus dividant, sicut eis melius visum fuerit. (If any one of my barons or vassals shall not have disposed of his wealth, or directed the disposal of it, let his wife, children, or parents and proper persons divide it, for the good of his soul, as shall seem best to them.) (Text. Roffens, c. 34, p. 51.)"

ably 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 animæ ejus, ecclesiæ consilio (for the good of his soul, by the advice and direction of the church); (p) which latter words are equivalent to per visum ecclesiæ, 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. (q)

Where exercised. This jurisdiction, we have seen, is principally exercised with us in the consistory courts of every diocesan

[*98] *bishop, and in the prerogative court of the metropolitan, originally; and in the arches court and court of delegates, by way of appeal.

Branches of the jurisdiction. 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 justitiæ, and are then the object of what is called the voluntary, and not the contentious jurisdiction.

Contesting the probate of a will. 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. 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. For, as it is beneath the dignity of the king's courts to be merely ancillary to other inferior jurisdictions, the cause, when once brought there, receives there also its full determination.

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Procedure. 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 decide many questions which are properly of temporal cogni

[*99]

(p) Lord Lyttlet. Hen. II, vol. i, 536. Hearne ad Gul. Neubr. 711. (q) Stiernhook, de jure Sueon, l. 3, c. 8.

zance, 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 longestablished forms, and new-modelling a course of proceedings that has now prevailed for seven centuries.

They follow the civil law. 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 (r) been spoken to at large. I shall only now remark upon those collections, that their being written in the Latin tongue, and referring so much to the will of the 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 moulded 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 ardor a method of judicial proceedings which was carried on in a language unknown to the bulk of the people, which banished the intervention of a jury (that bulwark of *Gothic liberty), and which placed an arbitrary power of decision in [*100]

the breast of a single man.

The proceedings in the ecclesiastical courts are therefore regulated according 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 (s) 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.

(t)

Pleading. But under these restrictions, their ordinary course of proceeding is: 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,

(r) Book I, introd. § 1.

(8) Warb. alliance, 179.

(t) 2 Roll. Abr. 300, 302.

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, whereby the parties were obliged to answer upon oath to any matter, however criminal, 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 moderation. By the statute of 13 Car. II, c. 12, it is enacted, that it [*101] shall not be lawful for any bishop or ecclesiastical judge, to tender or administer to any person whatsoever, the oath usually called the oath ex officio, or any other oath whereby he may be compelled to confess, accuse, or purge himself of any criminal matter or thing, whereby he may be liable to any censure or punishment. When all the pleadings and proofs are concluded, they are referred to the consideration, not of a jury, but of a single judge; who takes information by hearing advocates on both sides, and thereupon forms his interlocutory decree or definitive sentence at his own discretion: from which there generally lies an appeal, in the several stages mentioned in a former chapter; (u) though if the same be not appealed from in fifteen days, it is final, by the statute 25 Hen. VIII, c. 19.

Enforcing decree. But the point in which these jurisdictions are the most defective, is that of enforcing their sentences when pronounced; for which they have no other process but that of excommunication; which is described (v) to be twofold; the less, and the greater excommunication. The less is an ecclesiastical censure, excluding the party from the participation of the sacraments: the greater proceeds farther, and excludes him not only from these, but also from the company of all christians. But, if the judge or any spiritual court excommunicates a man for a cause of which he hath not the legal cognizance, the party may have an action against him at common law, and he is also liable to be indicted at the suit of the king. (w)

Heavy as the penalty of excommunication is, considered in a serious light, there are, notwithstanding, many obstinate or profligate men, who would despise the brutum fulmen of mere ecclesiastical censures, especially when pronounced by a petty surrogate in the country, for railing or contumelious words, for non-payment of fees, or costs, or for other trivial causes. The common law therefore

[*102] compassionately steps in to *the aid of the ecclesiastical jurisdiction, and kindly lends a supporting hand to an otherwise tottering authority. Imitating herein the policy of our British an

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