Sivut kuvina

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does not come into question, but only the fact, whether or no the tithes allowed to be due are really subtracted or withdrawn, this is a transient personal injury, for which the remedy may properly be had in the spiritual court; viz: the recovery of the tithes, or their equivalent.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 and 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 part *is [*89] duly set forth, or agreement is made with the proprietor, or shall willingly withdraw his tithes of the same, or shall stop or 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. () 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 and 8 Wm. 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. (2)

Another pecuniary injury, cognizable in the spiritual courts, is the non-payment of other ecclesiastical dues to the clergy: as pensions, mortuaries, 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 offer[*90] ings, oblations and obventions not exceeding 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; (1) 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

(h) 2 Inst. 250. (1) Ibid. 334.

(i) Stat. 7 and 8 W. III. c. 6. Lord Raym. 450, 1558. Fitz. 55.

(k) Salk. 332. (m) 1 Ventr. 165.

(n) 1 Burn. eccl. law, 438.

(2) See the preceding note.

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; (0) 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. (3)

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 for the profits so [*91 ] 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 patron 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. (p) But if the right of patronage comes at all into dispute, as if one patron presented A, and another presented B, there the ecclesiastical court hath no cognizance, provided the tithes sued for amount to a fourth part of the value of the living, but may be prohibited at the instance of the patron by the king's writ of indicavit. (q) 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 benefices or no plurality, vacancy or no vacancy), 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; (7) (4) 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 ecclesiastical person dilapidates the buildings, or cuts down timber growing on the patrimony of the church, unless [*92] for necessary repairs: (s) and that a writ of prohibition will also lie against him in the courts of common law. (t) 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 alience, 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


(0) 1 Freem. 70.

(P) F. N. B. 36.

(9) Circumspecte agatis; 13 Edw. I. st. 4 Artic. Cleri. 9 Edw. II, c. 2. F. N. B. 45. (8) 1 Roll. Rep. 86. 11 Rep. 98. Godb. 259. (t) 3 Bulstr. 138. 1 Roll. Rep. 335.

(r) Cart. 224. 3 Lev. 26s.

(3) [Now a proceeding in the ecclesiastical court is the only remedy, for the statute 1 and 2 Vic. c. 106, 83, re-enacting a similar provision of the 12 Anne, st. 2, c. 12 and 57 Geo. III, c. 99, gives to the bishop a power to summarily hear and determine any difference between the incumbent of a benefice and his curate touching the stipend of the latter, and to enforce the payment of it by monition and by sequestration of the profits of the benefice. And the 109th section of the same statute, also re-enacting a similar provision of the 57 Geo. III, c. 99, enacts that wherever jurisdiction is given to a bishop or archbishop under the provisions of that act, all other and concurrent jurisdiction shall wholly cease.]

(4) The usual and more effectual remedy is in the courts of common law, by action on the case. See Radcliffe v. D'Oyly, 2 T. R. 630.

VOL. II.-8


As to the neglect of reparations of the church, church-yard and the like, the spiritual court has undoubted cognizance thereof; (u) and a suit may be brought therein for non-payment of a rate made by the church-wardens for that purpose. (5) And these are the principal pecuniary injuries, 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 light of mere civil contracts, they do not seem to be properly of spiritual cognizance. (v) 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 humor or interest of the reigning pontiff; besides 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, (w) 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 them selves when both of them living might have done. (x)

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 à 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 enacts, that [ *94] for the future no suit shall be had in any ecclesiastical court, to compel a celebration of marriage in facie ecclesiæ, for or because of any contract of matrimony 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 substraction, or lives separate from the other without any suflicient reason; in which case the ecclesiastical jurisdiction will

(u) Circumspecte agatis. 5 Rep. 66.

(v) Warb, alliance, 173.

(w) 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. (x) Inst. 614.

(5) A summary remedy before two justices of the peace is now given. See Rex v. Milnrow, 5 M. and S. 248; Richards v. Dyke, 11 Law J. Rep. (N. S.) Q. B. 275.

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, (y) 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; 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 previous 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 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 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. (6)

[*95] 3. Testamentary causes are the only remaining species belonging to the ecclesiastical jurisdiction; (7) 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." (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 granted to the ordinary, "consensu regio et magnatum regni Angliæ. (d) The

(a) Book II, ch. 32.

(y) Book I, ch. 15. (z) Warburt. alliance. 173. (b) Hickes's Disser. Epistolar. p. 8, 58. (c) Provincial. l. 3, t. 13, fol. 176. (d) Ibid. l. 3, t. 38, fol. 263.

(6) Jurisdiction in matrimonial and divorce causes is now transferred to the divorce court, created by statute 20 and 21 Vic. c. 85, and made perpetual by subsequent statutes. The judge of probate, lord chancellor and judges of the superior common law courts compose this court, but the judge of probate is the judge ordinary, and may sit alone. In addition to its jurisdiction to declare marriages null and to divorce parties, this court also has cognizance of actions for criminal conversation, which are not now allowed to be brought in the common law courts. It has jurisdiction, also, of cases in which a declaration of legitimacy is sought. In divorce cases it may give alimony, and make order concerning the care and custody of children. Issues of fact may be ordered to be tried by jury in this court, or sent to a court of common law for trial An appeal lies from the judge ordinary to the full court, and from the full court, on decrees for nullity of marriage or divorce, to the house of lords.

(7) This jurisdiction, considerably enlarged, is now vested in the court of probate. See statutes 20 and 21 Vic. c. 77, and 21 and 22 Vic. cc. 56 and 95. See note to page 67, ante.

constitutions of Cardinal Othobon also testify, that this provision "olim a prælatis cum approbatione regis et baronum dicitur emanasse." (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 cam quam a rege acceptam referebant. Jus testamenta probandi non *habebant: administrationis potestatem cuique delegare non poterant.” [*96] 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." 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. (7) 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 Othōbon, 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. (i) And, yet earlier, the disposition of intestates' goods "per visum ecclesia" was one of the articles confirmed to the prelates by King John's magna carta. (j) Matthew Paris also informs us that King Richard I ordained in Normandy "quod distributio rerum quæ in testamento relinquuntur autoritate ecclesiæ 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." (k) And the Scots book, called regiam majestatem, agrees verbatim with Glanvil in this point. (7)

It appears that the foreign clergy were pretty early ambitious of this branch [*97] 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 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, immo etiam opprobriosum, si peritos se velint os tendere disceptationum esse forensium." 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, 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 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 animæ ejus, ecclesiæ consilio; (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. (7)

(f) See 9 Rep. 38.

(g) Fol. 263.

(e) Cap. 23.
(h) Fitz. Abr. tit. testament, pl. 4. 2 Roll. Abr. 217. 9 Rep. 37. Vaugh. 207.
(i) 1. 5. de exceptionibus, c. 10. (j) Cap. 27, edit. Oxon.
(k) l. 7, c. 38.
(n) Decretal. 3, 26. 17. Gilb. Rep. 204, 203.

(1) 1. 2, c. 38.

(m) Cod. 1, 3, 41. (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 cis melius visum fuerit, (Text. Roffens, c. 34, p. 51.)

(p) Lord Lyttlet. Hen. ÚI, vol, i, 536. Hearne ad Gul. Neubr. 711. (q) Stiernhook, de jure Sueon. 1. 3, c. 8.

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