« AnteriorContinuar »
appeals under the statute are to be heard, for the purpose of hearing such appeals; and that no such appeal shall be then heard without the presence of one at least of those prelates, who must, however, not be the bishop who originally issued the commission in the cause, or whose sentence is appealed from.1
Such are the chief provisions of this important law; and it would be improper to omit here that the church is indebted for so great an improvement in her government and judicial polity to the indefatigable zeal and consummate ability of the bishop of Exeter.2 The exercise of
1 Sect . 16. It is, however, remarkable that there are only three prelates members of the privy council, and that no bishop has been added to that assembly since the passing of this act.
2 It may be advisable to add in this note the marginal summaries of the remaining sections of the act:—Sect. 1. Repeal of stat . 1 Hen.
VII. , intituled " An Act to punish priests and other religious men for dishonest lives." 2. Defrnition of the terms, preferment, bishop, archbishop, and diocese. 12. Sentence of the bishop to be effectual in law. 17. Attendance of witnesses, and production of papers, &c., compellable. 18. Witnesses examined on oath, and punishable for perjury. 19. Provisions of the act not to interfere with persons instituting suits to establish a civil right, and not to affect stat. 23 Hen
VIII. c. ix., intituled " An Act that no person shall be cited out of the diocese where he or she dwelleth, except in certain cases." The exceptions in that act relate to cases of misconduct of officials, and testamentary causes. 20. Suits to be commenced within two years, except where the person has been convicted in a court of law, in which case a suit or proceeding under the act may be brought within six months of such conviction. 21. 27 Geo. III. c. xliv. not to apply to suits against spiritual persons for certain offences. It is intituled "An Act to prevent frivolous and vexatious suits in the ecclesiastical courts." 22. Power of archbishops and bishops as to exempt or peculiar places or preferments. They thereby have jurisdiction over peculiars within their province or diocese, except archbishops' or bishops' peculiars. 23. No suit (criminal against a clerk) to be instituted, except as herein provided. 25. Saving the archbishop and bishop's powers, which he may exercise without suit in court.
the power of judicial investigation and correction, which has been shewn to belong to the bishops of the church of England, and indeed to the very office of a Christian bishop, is thus restored to them; and the church has at the same time recovered some share in the supreme appellate jurisdiction, to which, in matters essentially belonging to her spiritual functions, she is justly entitled.
We must now take a brief view, first, of the matters to which the jurisdiction of the ecclesiastical courts extends; and secondly, of the means provided by the constitutional law to prevent those tribunals from encroaching on the province of the civil magistrate.
And here it is necessary to premise, that the assignment of proper limits to the exterior forum of the ecclesiastical judge, rightfully belongs to the temporal law, whereby that outward power was added to the spiritual authority of the church. It is, indeed, properly a function of the sovereign power of the state to settle the limits of all outward jurisdictions within the same. Thus 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 to them, the queen's courts of common law may and do prohibit them, and in some cases punish their judges.1
Such wrongs and injuries offered to private persons as are cognisable by the ecclesiastical courts, not for reformation of the offender (pro salute animce), but for the sake of the party injured, and to make him a satisfaction and redress for the damage which he has sustained, are reduced by Blackstone under three different heads: of causes pecuniary, causes matrimonial, and causes testamentary.
1 Hale, Hist, of Com. Law, c. ii.
I. "Pecuniary causes," our great commentator informs us, "cognisable 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."1
The principal of these, until lately, was the subtraction or withholding of tithes from the parson or vicar, whether the former be a clergyman or a lay impropriator.2 The ecclesiastical court, however, had no authority to try the right of tithes, unless between spiritual persons,3 nor to compel payment thereof, excepting where the right was not denied.4 But by the statute 6 and 7 Wm. IV. c . lxxi. for converting tithes into a permanent rent-charge upon the land, this branch of the jurisdiction of the ecclesiastical courts has been extinguished.
Another pecuniary injury cognisable in the spiritual courts is the non-payment of ecclesiastical dues to the clergy; as pensions, mortuaries, compositions, offerings, and whatsoever falls under the denomination of surplicefees, for marriages and other ministerial offices of the church; all which injuries are redressed by a decree for their actual payment . But these dues must be such as are recognised by the common law.5
Under this head of pecuniary injuries may also be reduced the several matters of spoliation, dilapidations and neglect of repairing the church and things thereto belonging, for which a satisfaction may be sued for in
> Blackst. Com. b. iil c. vii p. 88.
3 2 Roll. Abr. 309, 310. Bro. Abr. tit. Juritdiction, 85.
4 2 Inst. 364, 489, 490.
4 Blackst . Com. b. iil c. vii. p. 89.
the ecclesiastical court.1 Spoliation is an injury done by one clerk or incumbent to another, in taking the fruits of his benefice without any right thereto, 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, does not come into debate, is cognisable in the spiritual court.2
For dilapidations, which are a kind of ecclesiastical waste, 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 ;3 and it may be brought by the successor against the predecessor, if living; or if dead, then against his executors. As to the neglect of reparations of the church, churchyard, and the like, the spiritual court has undoubted cognisance thereof ;4 and a suit may be brought therein for non-payment of a rate made by the churchwarden for that purpose.5 And these are the principal pecuniary injuries which are cognisable, or for which suits may be instituted in ecclesiastical courts.6
II. Matrimonial causes, or injuries respecting the rights of marriage, are another branch of the ecclesiasti
1 Blackst. Com. ibid.
2 Ibid. p. 90, 91. And see Rogers, Eccl. Law (a.d. 1840), tit. Spoliation; and also Circumtpecte agatit, 13 Ed. I. st. 4, artic. Cleri. 9 Ed. II. c. ii. Fitzh. Nat. Brev. 45.
J Carth. 224; 3 Lev. 268; 2 Term Reports, 6S0. As to alienations of goods to defeat the successors of their remedy, see 13 Eliz. c. x. ; and as to the application of money recovered for dilapidation, see 14 Eliz. c. 11.
4 Circumtpecte agatit, 5 Rep. 66.
5 By stat. 53 and 54 Geo. III. church and chapel-rates below 10/. are summarily recoverable before two justices, with appeal to the quarter sessions.
6 Blackst . Com. ibid. p. 92.
cal jurisdiction. "According to juster notions of the nature of the marriage-contract," says Lord Stowell, in Lindo v. Blisario, "it is not merely a civil or a religious contract; at the present time it is not to be considered as originally and simply one or the other."1 It is a consecrated contract, deriving its origin from the law of nature, and its sanctity from the Christian church; and in the Homilies, though matrimony is denied to be a sacrament in such signification as baptism and the Lord's supper are, yet it is expressly called the sacrament of marriage? and described so as to fall within the general description of a sacrament; which, indeed, as a word of art, is capable of being understood in a stricter or in a more extended sense.3 But in the church of Rome, matrimony is held to be one of the seven sacraments (though inferior to the sacraments of baptism and the holy eucharist); and from thence is derived the ecclesiastical jurisdiction in causes matrimonial, of which Blackstonc gives the following concise account:—" Of matrimonial causes, one of the 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 proof of the actual marriage, he or she is enjoined perpetual silence upon that head, which is the only remedy the ecclesiastical
1 1 Haggard, Consistor. Rep. 230.
* Sermon on Common Prayer and Sacraments. Sermon on Swearing, part I.
3 Palmer, Tr. on the Church, vol. ii. p. 442, &c. Archbishop Seeker says: "As the word sacrament is not a Scripture one, and hath at different times been differently understood, our catechism doth not require it to be said absolutely that the sacraments are two only, but two only necessary to salvation."