courts can give for this injury.1 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 was cut off by the act for preventing clandestine marriages, 26 Geo. II. c. xxxiii. which enacted that for the future no suit should be had to compel a celebration of marriage in facie ecclesiæ, for or because of any contract of matrimony whatsoever." That act is now repealed; but stat. 4 Geo. IV. c. lxxvi. contains a similar provision. 3. "The suit for restitution of conjugal rights is also another species of matrimonial causes, which is brought whenever either the husband or the wife is guilty 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 are causes thoroughly matrimonial, and cognisable 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, or perpetual disease, and the like, this unfituess 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

"A third defence of more rare occurrence is, that though no marriage has passed, yet the pretension was fully authorised by the complainant; and therefore though the representation is false, yet it is not malicious, and cannot be complained of as such by the party who has denounced it." Lord Hawke v. Corri. In that case such a defence was made out, and the court dismissed the suit. 2 Haggard, Rep. 280.

one as rendered the marriage unlawful ab initio, as consanguinity, corporeal 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 a 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 her 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 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 partaker of his estate while living.

"III. Testamentary causes are the only remaining species belonging to the ecclesiastical jurisdiction, which, as they are certainly of a mere temporal nature, may seem at first view a little oddly ranked among matters of a spiritual cognisance; and, indeed, they were originally cognisable in the king's courts of common law, namely, in the county courts, 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."1

This jurisdiction (the date of the commencement whereof is uncertain) is principally exercised in the consistory courts of every bishop, and the prerogative-court of every archbishop originally, and in the arches - court 1 Blackst. Com. b. iii. c. vii. p. 92-94.

and the privy council by way of appeal. It is divisible into the following three branches:-1. The probate of wills, which is granted as a matter of course by the voluntary jurisdiction of the court, when no opposition is made; but where a caveat, or formal objection, is entered against proving the will, that proceeding brings the question of its validity before the court in the exercise of its contentious jurisdiction, to be there determined. 2. The granting administration of an intestate's estate to his next of kin, or appointing an administrator of the estate of some person deceased, where there is no executor of his will, which is called granting administration with the will annexed. And here again a caveat may be resorted to for the purpose of opposing before the court the grant of administration. 3. Subtraction or withholding of legacies that are lawfully due is the third branch of testamentary causes to which the ecclesiastical jurisdiction extends; and it administers redress in such cases by compelling the executor to pay them: but here the jurisdiction of the court of chancery is concurrent with that of the ecclesiastical courts.'

The ecclesiastical courts also possess a criminal jurisdiction, in the exercise of which they punish spiritual sins, rather than temporal crimes, by penance, contrition, and excommunication, or by a commutation in the nature of a pecuniary mulct, paid to the officers of the court. This jurisdiction is derived from the authority of correction in foro pænitentiæ, which belonged to the bishops among the primitive Christians, and was exercised by the apostles themselves.2 That authority, which is a portion of that sometimes called the power of the keys, can be taken away by no temporal law. The criminal jurisdic

1 Blackst. Com. ibid. p. 99.

2 Van Espen, par. iii. tit. iv. c. i. Bingham, Antiq. b. xvi. c. iii.

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tion of the ecclesiastical courts in foro exteriori will, however, in all probability be abolished before long; a measure, on the whole, desirable: for the purely temporal spirit in which these tribunals proceed, and the irritation which they consequently produce, absolutely deprive them of their proper spiritual influence and character. It is also difficult, in the present state of religion in this country, to prevent a jurisdiction proceeding in such a spirit from either violating, or appearing to violate, the toleration and liberty of conscience which are absolutely requisite for the interests of religion and the peace of society. When the nature of the episcopal office, and the extent of its spiritual authority, are fully understood, and the influence of the bishops is extended over the laity, their spiritual admonitions and censures will not require any assistance from the secular arm. But, in the meanwhile, it is better that a jurisdiction of which the church bears all the odium, while it produces neither edification nor obedience to her laws, should be either abolished or totally remodelled.

The proceedings of the ecclesiastical courts are 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 particular usages, and the interposition of the courts of common law. Of this system of proceeding the chief features are, the total absence of trial by jury; the examination of the defendant on oath in civil cases, though not in any criminal matters; and the collection of evidence by an officer of the court, which is afterwards produced in writing before the judge.'

But, as Blackstone remarks, the point in which these jurisdictions are most defective is that of enforcing their sentences when pronounced. This they formerly did by

1 Blackst. Com. ibid. p. 99, 100.

Rogers, Eccl. Law, tit. Evidence.

the process of excommunication, which was followed by the issuing of a writ of significavit, or of a writ de excommunicato capiendo, out of chancery, whereby the civil magistrate enforced the decree of the spiritual judge.1 But by the statute 53 Geo. III. c. cxxvii. for England, and 54 Geo. III. c. lxviii. for Ireland, excommunication and the writ de excommunicato capiendo are prohibited as a mode of enforcing obedience to ecclesiastical process or decrees. Instead of the sentence of excommunication in these cases, the court is now to pronounce the party contumacious, and a writ de contumace capiendo is to issue from chancery upon the signification of the ecclesiastical judge, which is to have the same force as the former writ.

Excommunication can therefore now only be resorted to as a punishment or spiritual censure for an offence of ecclesiastical cognisance. But in such cases it produces none of those civil disabilities which followed from the ancient process of excommunication, nor indeed any temporal punishment, except imprisonment for such term, not exceeding six months, as the court shall direct; and the writ de excommunicato capiendo issues in the same manner as before for the execution of such sentence.2

The ecclesiastical law distinguishes between the greater excommunication, or anathema, and the lesser excommunication. The external ecclesiastical effects of the former are exclusion from the sacraments, from all Christian privileges, and from all intercourse with the faithful, so far as is compatible with the discharge of the reciprocal duties of rulers and subjects, parents and children, and the like; but the external ecclesiastical consequence of the latter is suspension from the sacraments and offices

1 Fitz. Nat. Brev. 62. Stat. 5 Eliz. c. xxiii.

2 Rogers, Eccles. Law, tit. Excommunication, p. 423, 424. Stat. 53 Geo. III. c. cxxvii. § 2, 3.