« PreviousContinue »
trary 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 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;(k) but no custom can support the demand of a fee without performing them at
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.(£) 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 ;(wi) 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 common law ;(n) 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.
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 „g^ the fruits of his benefice without any *right thereunto, but under a preJ tended title. It is remedied by a decree to account for the profits so taken. This injury, when the jus patronatus or right of advowson does 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.^) 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, out may be prohibited at the instance of the patron by the king's writ of indicavit.(p) 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,(y) 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 *o,9-| cuts down timber growing on the patrimony 01 *the church, unless for J 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 wero the executor of his prede cessor. 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 *as recovered, on penalty of forfeiting double the value to the crown.
As to the neglect of reparations of the church, churchyard, 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 church-wardens for that purpose. 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 d» not seem to be properly of spiritual s) But the Eomanists having very early converted this contract into a holy sacramental ordinance, th» church of course took it under her protection, upon the division of the twe jurisdictions. And in the hands of such able politicians, it soon became an engine of great importance to the papal scheme of a 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 avast ascendant over princes of all denominations; whose marriages were sane cified or reprobated, their issue legitimated or bastardized, and the succession to their thrones established or rendered precarious, according *to the humour or interest of the reigning pontiff: besides a r*g3 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,(u) 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 themselves, when both of them living, might have done.(w)
Of matrimonial causes, one of the first and principal is, 1. Causa jactitationit 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
(*) OimtmxpecU agatit. 6 Rep. 66. language are those written by the popish clergy on the
m Warb. Alliance, 173. subjects of matrimony and divorce.
(*) Some of the impurest books that are extant in any (") Inst. 614.
4 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 vt. Corri, 2 Dr. Hagg. 220.—Chittt.
•It is not enough for the maintenance of this suit that one party falsely "boasts «r gives out that he or she is married to the other:" the boasting must be malicious as well as false. In the case of Lord Hawke vs. Corri, the learned judge, in stating the defences which may be made to such a suit, says, "A third defence of more rare occurrence is that though no marriage has passed, yet the pretension was fully authorized by the complainant; and therefore, though the representation is false, yet it is not malicious, and cannot
Voi. IL—5 «5
*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 •941 ac* *"or Preventing clandestine marriages, 26 Geo. II. *c. 33, which
J enacts, that for the future no suit shall be had in any ecclesiastical court, to compel a celebration of marriage in facie ecclesice, 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 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,(re) 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 ♦flfil of ner *d°wer after his death, it is also a sufficient reason why she should
J not be 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 na
(•) Book L cb. 1ft.
be complained of as such by the party who has denounced it." In that case, such a defence having been fully made out, the court dismissed the suit. 2 Haggard's Rep. 280 —coleridge.
6 We have seen in the first book, pages 440, 441, 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 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 vs. Evans, 1 Hagg. Rep. 36, 364, 409, 458. 2 id. 154, 158. 2 Phil. Ec. C. 132.—Chitty.
'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, ia in sufficient cause for the ecclesiastical courts to decree a separation a mensa et thoro. Feb 1794.—Christian.
* 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 ture,(y) may seem at first view a little oddly ranked among matters of .1 spiritual cognizance. And indeal (as was in some degree observed in a former book,Yz) they were originally cognizable in the king^s courts of common law, viz., tW county-courts ;(a) 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.
(») Warburt. Alliance, 173. (•) Book ii. ch. 32. (•) HickWa Distort. Epittdar. f. t, 58.
the testament, the execution of trusts is never refused by courts of equity. 1 P. Wms. 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 lattrr. 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. Prec. Cha. 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 th« 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 ii and admiUtd 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 inte-esta 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 Boll. 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 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 executor assents to those bequests, the legal interests 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, 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 have the power, and are in the constant habit, of doing. 5 Term Rep. K. B. 690. 7 T. R. 667. 2 P. Wms 641. Peake's C. N. P. 73. There a 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, shows 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 suggested that it should seem that upon an express promise and admission of assets an •xecutor may be sued. 2 Saund. by Patteson, 137, note a.—Chittt
Tins 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, butby 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 Anglice, et super contensu regio et suorum procerum in talibus ab antiquo concesso."(b) 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 Anglice."'(c) The constitutions ol cardinal Othobon also testify that this provision " olim a prcelatis cum approbation regis et baronum dicitur emanasse."(d) And archbishop Parker,(e) in queen Elizabeth's time, affirms in express words, that originally in matters testamentary "non ullam habebant episcopi authoritatem, prater earn quam a rege acceptam *Qfil Teferebant. Jus testaments probandi non *habebant: administrationis potes■I tatem cuique delegare non poterant."
At what period of time the ecclesiastical jurisdiction of testaments and intestacies began in England, is not ascertained by any antient writer: and Lindewode(/) very fairly confesses, "cvjus 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.(^) 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 Othobon, in the 52 Hen. III., speaks of it as an antient tradition. Bracton holds it for clear law, in the same reign of Henry III., that matters testamentary belonged to the spiritual court.(A) And, yet earlier, the disposition of intestates' goods "per visum ecclesiat" was one of the articles confirmed to the prelates by king John's magna carta.(i) Matthew Paris also informs us that king Richard I. ordained in Normandy "quod distributio rerum quce in testamento relinquuntur auctoritate eccle»ke 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."(j) And the Scots book, called regiam majestatem, agrees verbatim with Glanvil in this point.(/V)
It appears that the foreign clergy were pretty early ambitious of this branch ^.q- , of power; but their attempts to assume *it on the continent were effecJ tually curbed by the edict of the emperor Justin,(Z) 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 qua; secundum canones et tpiscopales leges ad regimen animarum pertinuit, it fell within the jurisdiction of the spiritual courts by the express words of the charter of king William L, 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,
(») Provincial, I. 3, (. 13, /oj. 178. Is) L. 7, c. 8.
(•) Ibid. 1.3, «. 38, /of. 263. (*) L. 2, c. 38.
(') Cap. 23. (') Chd. 1, 3, 41.
;•) Soe 9 Rep. 38. («) Decretal. 3, 28,17. Glib. Rep. 204, 206.
/) Pol. 263. (•) Si quit barmum seu kominum meorum,—peeunuim
'#) Fitz. Abr. tit testament, pL 4. 2 Roll. Abr. 217. 0 Rep. suam rum dederit vel dart ditpotuerit, uxor rua, five liberi.