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OF THE COGNIZANCE OF PRIVATE WRONGS.
We are now to proceed to the cognizance of private wrongs; that is, to consider in which of the vast variety of courts, mentioned in the three preceding chapters, every possible injury that can be offered to a man's person or property is certain of meeting with redress.
The authority of the several courts of private and special jurisdiction, or of what wrongs such courts have cognizance, was necessarily remarked as those respective tribunals were enumerated; and therefore need not be here again repeated; which will confine our present inquiry to the cognizance of civil injuries in the several courts of public or general jurisdiction. And the order, in which I shall pursue this inquiry, will be by shewing: 1. What actions may be brought, or what injuries remedied, in the ecclesiastical courts. 2. What in the military. 3. What in the maritime. And, 4. What in the courts of common law.
And, with regard to the three first of these particulars, I must beg leave not so much to consider what hath at any time been claimed or pretended to belong to their jurisdiction, by the officers and judges of those respective courts; but what the common law allows and permits to be For these eccentrical tribunals (which are principally guided by the rules of the imperial and canon laws), as they subsist and [*87] are *admitted in England, not by any right of their own (a), but upon bare sufferance and toleration from the municipal laws, must have recourse to the laws of that country wherein they are thus adopted, to be informed how far their jurisdiction extends, or what causes are permitted, and what forbidden, to be discussed or drawn in question before them. It matters not therefore what the pandects of Justinian, or the decretals of Gregory, have ordained. They are here of no more intrinsic authority than the laws of Solon and Lycurgus: curious perhaps for their antiquity, respectable for their equity, and frequently of admirable use in illustrating a point of history. Nor is it at all material in what light other nations may consider this matter of jurisdiction. Every nation must and will abide by its own municipal laws; which various accidents conspire to render different in almost every country in Europe. We permit some kinds of suits to be of ecclesiastical cognizance, which other nations have referred entirely to the temporal courts; as concerning wills and successions to intestates' chattels and perhaps we may, in our turn, prohibit them from interfering in some controversies, which on the continent may be looked upon as merely spiritual. In short, the common law of England is the one uniform rule to determine the jurisdiction of our courts: and, if any tribunals whatsoever attempt to exceed the limits so prescribed them, the king's courts of common law may and do prohibit them; and in some cases punish their judges (b).
Having premised this general caution, I proceed now to consider,
(a) See Book I. introd. ◊ 1.
(b) Hal. Hist. C. I. c. 2.
mean such as are offered to private persons or individuals (1); which are cognizable by the ecclesiastical court, not for reformation of the offender himself or party injuring (pro salute animae, as is the case with immoralities in general, when unconnected with private injuries), but for the sake of the party injured, to make him a satisfaction and redress for *the damage which he has sustained. And these I shall reduce [*88] under three general heads; of causes pecuniary, causes matrimonial, and causes testamentary.
1. Pecuniary causes, cognizable in the ecclesiastical courts, are such as arise either from the withholding ecclesiastical dues, or the doing or neglecting some act relating to the church, whereby some damage accrues to the plaintiff; towards obtaining a satisfaction for which he is permitted to institute a suit in the spiritual court.
The principle of these is the subtraction or withholding of tithes from the parson or vicar, whether the former be a clergyman or a lay appropriator (c). But herein a distinction must be taken: for the ecclesiastical courts have no jurisdiction to try the right of tithes unless between spiritual persons (d); but in ordinary cases, between spiritual men and lay men, are only to compel the payment of them, when the right is not disputed (e). By the statute or rather writ (f) of circumspecte agatis (g), it is declared that the court christian shall not be prohibited from holding plea, “si rector petat versus parochianos 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 & 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 duly set [*89] 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
(c) Stat. 32 Hen. VIII. c. 7.
(d) 2 Roll. Abr. 309, 310. Bro. Abr. c. jurisdiction, 85.
(1) See in general, Bac. Ab. tit. Courts Ecclesiastical, D. & tit. Slander; Com. Dig. Prohibition; where see G. when the ecclesiastical court has jurisdiction and when not. The ecclesiastical court has no jurisdiction over trusts, and therefore where a party sued as a trustee, was arrested on a writ de contumace capiendo, the court of K. B. discharged him out of custody. 1 B. & C. 655.
Suits for defamation may be added to the three heads above considered: as to these in general, see Burn Ecc. L. Defamation; Com. Dig. Prohibition, G. 14; Bac. Ab. Slander, T. U.; Stark. on Slander, 32. 474. Words imputing an offence, merely spiritual, are not in themselves actionable at law, unless followed by special damage, and the party slandered can only institute a suit in the spiritual court; and though the law discourages suits of this kind, yet redress for the insult and injury is not denied. 2 Phil. Ec. Cases, 106. Words
(e) 2 Inst. 364. 489, 490.
(f) See Barrington, 123. 3 Pryn. Rec. 336. (g) 13 Edw. I. st. 4. or rather 9 Edw. II.
which impute an offence, merely cognizable in a spiritual court, may be punished in that court; as calling a person heretic, adulterer, fornicator, whore, &c.; but if the words are coupled with others for which an action at law would lie, as calling a woman a whore and a thief, the ecclesiastical court has no jurisdiction, and a prohibition lies. 2 Rol. Ab. 297. 1 Sid. 404. 3 Mod. 74. 1 Hagg. Rep. 463. in notes. So a suit cannot be instituted in the spiritual court for a written libel, because any slander of a person reduced into writing, and which can be the subject of any proceeding, is actionable or indictable. Comb. 71. Bac. Ab. Courts Ecclesiastical, D. The power of the ecclesiastical court is confined to the infliction of penance pro salute animæ, and awarding costs, and does not extend to the awarding damages to the injured party. 4 Co. 20. 2 Inst. 492.
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 (h) (2). 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 & 8 W. 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 (3).
Another pecuniary injury, cognizable in the spiritual courts, is the nonpayment of other ecclesiastical dues to the clergy; as pensions, mortuaries, compositions, offerings, and whatsoever falls under the denomination of sur
plice-fees, for marriages or other ministerial offices of the church: [ *90] all which injuries are redressed by a decree for their actual *payment. Besides which, all offerings, 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 (); but no custom can support the demand of a fee without performing them at all.
(h) 2 Inst. 250.
(i) Stat. 7 & 8 W. III. c. 6.
(2) This statute enacts, that every person shall justly divide, set out, yield, and pay all manner of predial tithes in such manner as they have been of right yielded and paid with in forty years, or of right or custom ought to have been paid, before the making of that act, under the forfeiture of treble value of the tithes so carried away. And in an action upon this statute, in which the declaration stated that the tithes were within forty years before the statute yielded and payable, and yielded and paid, it was held that evidence that the land had been as far as any witness knew in
(k) Salk. 332.
(1) Ibid. 334. Lord Raym. 450. 1558. Figz. 55.
pasture, and that it was never known to pay in predial tithe, was not sufficient to defeat the action. The same action might also be supported to recover tithes of lands enclosed out of wastes, which never paid tithes before. Mitchell v. Walker, 5 T. R. 260.
(3) The 53 Geo. III. c. 127. extends the ju risdiction of the two justices to tithes, oblations, and compositions, of the value of 10.; and in respect of tithes and church-rates, due from quakers, to 501., see statute and proceed. ings, Burn J. Tithes. The 54 Geo. III. c. 68. extends the same provisions to Ireland.
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 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 commom law (o); 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 (4).
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 there- [*91] unto, but under a pretended title. It is remedied by a decree to account for the profits so 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 patron 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, parsonagehouse, 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 (r), 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 grow
(m) 1 Ventr. 165.
(a) 1 Burn, eccl. law, 438.
(0) 1 Freem. 70.
(p) F. N. B. 36.
(4) That such an action is sustainable, see Coup. R. 437; Dougl. 14; Burn Ecc. L. Curate. The amount of the salary of a curate of a non-resident clergyman is, by 57 Geo. III. VOL. II.
(q) Circumspecte agatis; 13 Edw. I. st. 4. Artic. Cleri. 9 Edw. II. c. 2. F. N. B. 45. (r) Cart. 224. 3 Lev. 268.
c. 99. under the control of the bishop, and any agreement contrary to the act is void, and the bishop may enforce payment of arrears of fixed salary.
[*92] ing on the patrimony of the church, unless for necessary repairs (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, the spiritual court has undoubted cognizance thereof (t); 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 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 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.
(5) The 53 Geo. III. c. 127. gives a summary remedy by two justices for non-payment of church-rates not exceeding 101. If the rate
(v) 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.
be litigated in the ecclesiastical court, the justices are not to proceed. 5 M. & S. 248.