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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, 1. 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 mikes 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

(v) Inst. 614.

(6) In New-York the court of Chancery has cognizance of the subject of marriage, but only so far as to divorce entirely for adultery, or to separate a mensa et thoro for the cruelty of the husband, or to declare the marriage void for either of the following causes existing at the time of the marriage, viz. 1. That one of the parties had not attained the age of consent: 2. that one of the parties was then married to another: 3. or was an idiot or lunatic: 4. or gave consent through force or fraud: 5. or was physically incapable of entering into the marriage state. (2 R. S. 142, 146).

(7) But the boasting must be malicious. For where Lord Hawke had permitted the party to assume herself to be Lady Hawke in his presence, and had introduced and acknowledged her to be clothed with that character, the court dismissed the suit. Lord Hawke v. Corri, 2 Dr. Hagg. 220.

(8) And see 4 Geo. IV. c. 76. s. 27. ante, 1 book, 433. note 1.

(9) We have seen in the first book, page 440, 1. that it is stated, that a divorce a mensa et thoro, when marriage is just and lawful ab initio, is only allowed, for some supervenient

(w) Book I. ch. 15.

cause, when it has become improper or impossible for the parties to live together, and that intolerable ill temper was there considered to be a sufficient cause; a position which, it was submitted by the Editor, was not tenable. Upon this interesting subject the reader is referred to the eloquent decisions of sir William Scott, from which it will appear, that a husband or a wife may sustain a suit for a divorce on the ground of cruelty, even in a single instance, when it really endangers life, limb, or health; and that even words menacing such danger are sufficient ground: but that mere insult, irritation, coldness, unkindness, ill temper, or even desertion, is not alone a sufficient ground for a divorce. Evans v. Evans, 1 Hagg. Rep. 36. 364. 409. 458. 2 id. 154. 158. 2 Phil. Ec. C. 132.

(10) It has been determined by the court of delegates, that the public infamy of the husband, arising from a judicial conviction of an attempt to commit an unnatural crime, is a sufficient cause for the ecclesiastical courts to decree a separation a mensa et thoro. Feb. 1794.

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 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 will obtained by fraud, the ecclesiastical court alone can revoke it, 2 Vern. 8. 1 P. Wms. 388; and a person cannot be convicted of forging 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 granted. 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 extend to affect interests arising out of real property, when those interests are less than freehold; as in devises of terms for years, or of rents payable out of them, for such dispositions 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 common law have assumed jurisdiction of testamentary matters, and permitted actions to be instituted for the recovery of legacies, upon

mere temporal nature (x), 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 (2); 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 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 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."

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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

(2) Warburt. alliance, 173.

(y) Book II. ch. 32.

(2) Hickes's Disser. Epistolar. p. 8. 59.
(a) Provincial. l. 3, t. 13, fol. 176.
(b) Ibid. l. 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
judges, that this jurisdiction extends to cases
of specific legacies only; for when the execu-
tor assents to those bequests, the legal inte-
rests 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 its
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 brought 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 express promise and admission of assets, an executor 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 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 (7), 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 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 legacies (p). This jurisdiction, we have seen, is principally exercised with us [*98] in the consistory courts of every diocesan bishop, and in the prerogative 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 erceptionibus, c. 10.

(h) cap. 27. edit. Ozon.

(i) l. 7, c. 8.

(k) l. 2, c. 38.

(1) Cod. 1. 3. 41.

(m) Decretal. 3. 26. 17. Gilb. Rep. 204, 205.
(n) Si quis baronum seu hominum meorum-pe-

cuniam suam non dederit vel dare disposuerit, uror sua, sive liberi, aut parentes et legitimi homines ejus, eam pro anima ejus dividant, sicut eis melius visum fuerit. (Text. Roffens. c. 34, p. 51.)

(0) Lord Lyttlet. Hen. II. vol. i. 536. Hearne ad Gul. Neubr. 711.

(p) Stiernhook, de jure Sucon. 1. 3, c. 3.

suing 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 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 (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, that 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 surrogate or a court of equity, in New-York, after a year from the granting of letters testa mentary or of administration, the legatee or next of kin may sue 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.)

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