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) (2) 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

[*92] *the church, unless 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 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; (u) and a suit may be brought therein for non-payment of a rate made by the church-wardens for that purpose. (3) 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, according to the humor or interest of the reigning pontiff; besides a [*93] 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 (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. (8) 1 Roll. Rep. 86. 11 Rep. 98. Godb. 259. (t) 3 Bulstr. 158. 1 Roll. Rep. 835. (u) Circumspecte agatis. 5. Rep. 66. (v) Warb. alliance, 173.

(2) 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.

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

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 themselves, 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 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 enacts, that

for the future no suit shall be had in any ecclesiastical court, to compel a [*94] celebration of marriage in facie ecclesiae, 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, (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 inarriage 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 a partaker of his estate when living.

[*95]

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 for

(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. (r) Inst. 614. (y) Book I, ch. 15. (z) Warburt. alliance. 173.

mer 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 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 eam quam a rege acceptam referebant. Jus testamenta probandi non *habebant: administrationis potestatem cuique de

[*96] legare non poterant."

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. (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," Stratford, in the reign of King Edward III, mentions it as an "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. () And yet earlier, the disposition of intestates' goods "per visum ecclesice" 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. (1)

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 effect[*97] ually 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 etenim clericis est, immo etiam opprobriosum, si peritos se velint ostendere 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

(a) Book II. ch. 32.

(b) Hickes's Disser. Epistolar, p. 8, 58. (c) Provincial. l. 3, t. 13, fol. 176. (d) Ibid. 1. 3, t. 28, fol. 263. (e) Cap. 3. (f) See 9 Rep. 38. (g) Fol. 263. (h) Fitz. Abr. tit. testament, pl. 4. 2 Roll. Abr. 217. 9 Rep. 37. Vaugh. 207. (i) l. 5, de exceptionibus, c. 10. (j) Cap. 27, edit. Oron. (k) l. 7, c. 8. (m) Cod. 1. 3. 41. (n) Decretal. 3, 26, 17. Gilb. Rep. 204, 205.

(1) 1. 2, c. 38.

cause quæ secundum canones et episcopales leges ad regimen animarum pertinwit, 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, (o) 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 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. (q)

This jurisdiction, we have seen, is principally exercised with us in the consistory courts of every diocesan *bishop, and in the prerogative court [*98] 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 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. 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.

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 [*99] 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 estabfished, 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,

(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. (Text. Roffens, c. 34, p. 51.)

(p) Lord Lyttlet. Hen. II, vol. 1, 536. Hearne ad Gul. Neubr. 711.

Stiernhook, de jure Sueon. 1. 3, c. 8.

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 (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 de

[*100] cision in 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) 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, 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 [*101] is enacted, that it 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

(r) Book I, introd. § 1.

(8) Warb. alliance, 179.

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