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marriage frequently occurs as an incidental point, necessary to be determined in order to decide on the competency of an interest set up in a testamentary cause, as an authority for opposing a will

, or in order to ascertain the relationship of a party claiming a grant of administration in virtue of a marriage, the validity of which is denied in bar of such interest,(b) on the ground of its not having been solemnized, or that the parties were incapable of contracting (c) But where a marriage within the prohibited degrees had not been declared void in the lifetime of the parties, the husband was held to be entitled to administration of his wife's effects.(d)

It is a maxim of the common law, that where the right is spiritual, and the remedy thereof only by the ecclesiastical law, the conusance thereof appertains to the ecclesiastical court.(e) To give the spiritual court jurisdiction the whole cause ought to be spiritual.(f) The ecclesiastical judges proceed in causes within their cognizance according to such ecclesiastical laws as are allowed by law, not being against the common law, nor the statutes and customs of the realm.(g)

If an ecclesiastical court assumes a jurisdiction which it clearly has not, the proceeding will in general be wholly void, *and even the officer enforcing its sentence will be liable to an

[ *461 ) action; and, in general, ihe defendant may stay the proceedings by plea to the jurisdiction, or by writ of prohibition.(h)

The jurisdiction of the ecclesiastical courts in matrimonial cases extends to persons not only of full age but under, provided they are old enough to contract mairimony.(i)

We have already seen that the ecclesiastical court has jurisdiction to decide upon the legality of the marriage of English subjects and sometimes of aliens celebrated in foreign countries, such marriages being in general decided according to the law of the place where they were celebrated.(k) In the case of marriages in this country between Christians the ecclesiastical court is in possession of the law upon which the decision is to be founded, but the court must be fur

(b) Poynter, 166, 2d ed.

if they hold plea in court Christian of-such (c) Steadman v. Powell, | Addams, 58; things as be merely spiritual, that is to wit, Browning v. Reane, 2 Phill. R. 69; Braham of penance enjoined by prelates for deadly, v. Burchell, 3 Addams, 243; Barnes v. sin, as fornication, adultery, and such like, M Bride, 4 Hagg. Eccl. R. 378.

for the which sometimes corporal penance, (d) Elliott v. Gurr, 2 Phill. R. 16. and sometimes pecuniary is enjoined, espe.

(e) Co. Litt. 96 a; 5 Rep. 66 b.; 2 Rep. cially if a freeman be convict of such things." 43; Plowd, 277.

Several other ecclesiastical matters are men(S) 7 Rep. 43.

tioned. (g) Co. Litl. 344 a. The statute 13 Edw. By a decree of the Council of Trent, which 1, called the statute Circumspecte Agatis, is not received as law here, (ante p. 18,) it is and 9 Edw. 2, called Articuli Cleri, are the declared, Si quis dixerit causas ipatriinoniales most ancient as well as the principal statutes non spectare ad judices ecclesiasticos; anath. which declare in what cases the ecclesiasti. ema sit. Concilii Trident, Sess. 24, Can. 12, cal courts have jorisdiction. The words of p. 248, ed. 1615. the first are, “ the king to his judges sendeth (h) Beaurain v. Sir W. Scott, 3 Campb. greeting, use yoursclves circumspectly in all 388; Ex parte Jenkins, 1 B. & Cress. 655; matters concerning the Bishop of Nowich 3 Dowl. & R. 41; but sce Ackerley v. Par. (who is only put for an example, for it ex. kinson, 3 Maule & S. 411; post p. 464. tendeth to all the bishops within the realm, (i) Hill v. Turner, 1 Atk. 515. 2 Inst. 487,) and his clergy, punishing thein (k) Aute, p. 130, 131.

nished with evidence as to the marriage law of Jews(l) or of foreign countries when any question arises upon it here.(m)

Questions as to the validity of marriages depending upon civil disabilities, and the provisions in the marriage acts, arise in a great variety of cases before other judicial tribunals, as committees of privileges in the house of lords-in suits in courts of equity-in the common law couris, in a great variety of actions—in criminal courts upon charges of bigamy-and in the inferior courts of quarter sessions upon cases of settlement of paupers.

Incidental Right of Temporul Courts.]— The temporal courts have the sole cognizance of examining and deciding directly upon all the temporal rights of property; and so far as such rights are concerned, ihey have the inherent power of deciding incidentally, either upon the fact, or the legality of marriage when the question occurs in the trial, and as a part of some other more general issue coming within the sphere of temporal jurisdiction.(n) In the decision of the proper objects of their jurisdiction, they do not want or require the aid of the spiritual courts; nor has the law provided any

legal means of *sending to them for their opinion; except [ *462 }

where, in the case of marriage, an issue is joined upon the record in certain real writs,(o) upon the legality of a marriage or

(L) Ante, p. 67-69.

when the certificate is returned into that (m) Ante, p. 148–153.

court thc record may be reinanded, as in (n) See Hagr. Law Tracts, 452.

case of foreign voucher, to the court below. (o) All real actions, except a writ of right None but the superior courts of record, as of dower or writ of dower unde nihil habet, the Queen's Bench, Common Pleas, justices or a quare impedit, or ejectment, were abol- of gaol delivery, and the like, can write to ished by stat. 3 & 4 Will. 4, c. 27, s. 36. the bishop, (Co. Litt, 134 a; Co. Ent. 180 If the tenant, in an action of dower unde b; Com. Dig. Pleader, (2 Y. 10); Booth, nihil habet, controverts the validity of the 167.) If the marriage was celebrated in demandant's marriage with the person out Scotland, where there is no episcopal estabof whose lands she claims dower, he may lishment, the fuct must of necessity be tried plead ne unques accouple en loyal matrimo. by a jury, and, therefore, the replication nie, (Co. Ent. 180 a; Coin. Dig. Pleader, should conclude to the country, and the (2 Y. 10) ). To which plea the demandant issue will be tried in the county where the must reply that she was accoupled in law. venue is laid ; (Ilderton v. Ilderton, 2 H. BI. ful matrimony at B., in such a diocese, upon 145); but unless the marriage be in Scot. which a writ issues to the bishop of that land, or some foreign country, if the replicadioceso, requiring him to certify the fact to tion to the plea of ne unques accouple, &c., the court, (Co. Ent. 180 a; Rast. Ent. 228 conclude to the country, it will be bad, (Roba b; Dyer, 313, 2–368, b; Ilderton v. Ilderton, ins v. Crutchley, 2 Wils. 128.) The bishop 2 H. Bl. 145.) The demandant cannot re must return to the certificate the fact of ply a sentence in the ecclesiastical court, marriage or not, and not the special matter declaring the marriage valid, for that is or evidence, (Dyer, 305, 6, 313 b; Eastbery only malter of evidence, of which the bishop v. Easterby, Barnes, 1; 2 Rol. Ab. 591. As is the proper judge; but if the bishop has to the mode of proceeding in the bishop's already certificd the matter to the court, that court, sec Park on Dower, 290.) If the cer. certificate may be replied, and shall be a tificate be insufficient a new writ goes to the good estoppel against all the world, (Rob- bishop, (2 Towns. Judg. 95, 96.) Jf the ins v. Crutchley, 2 Wils. 122. 127; Br. Ab. plaintiff will not sue out this writ, the deEstop. 78, as to bastardy.) As the bishop is fendant may do so upon notice to the plain. the proper judge of marriage or no mar. tiff or motion, (Smith v. Smith, T. Jones, riage, bigamy cannot be specially pleaded, 38; see Roscoe up Real Actions, 220, 221.) but the tenant rust plead ne unques accou. The inquisition is taken before the bishop in ple, &c. and contest the marriage in the the following manner :-The writ is sent lo Bishop's court, (Br. Ab. Dower, 54.) If the the bishop to make the inquiry; for the court in which the dower is demanded be ecclesiastical judge, before he hath received an inferior jurisdiction which cannot write the king's writ, may not of himself inquire to the bishop, the record may be removed of the lawfulness of the matrimony; but by millimus into the Common Pleas, and after such time as he hath received the said

its immediate consequence ** general bastardy,”(p) or in like manner in some other particular instances, lying pe

[ *463 ] culiarly in the knowledge of their courts, as profession, deprivation, and some others; in these cases, upon the issue so formed, the mode of trying the question is by reference to the ordinary, and his certificate, when returned, received, and entered upon the record in the temporal courts, is a perpetual and conclusive evidence against all the world upon that point; which exceptionable extent, on whatever reasons founded, was the occasion of the statute 9 Hen. VI., c. 11, requiring certain public proclamations to be made for the parties interested to come in and be parties to the proceeding. But even in these cases, if the ordinary should return no certificate, or an insuffi. cient one, or if the issue is accompanied with any special circumstances, as if a second issue triable by a jury is formed upon the same record, or if the effect of the same issue is put into another form, a jury is to decide, and not the ordinary to certify, the truth.(9)

In all cases in which a writ goes to the bishop, it is sent to that bishop who has, or is at least presumed to have jurisdiction of the subject matter as ordinary, and in no other character. Therefore, if a marriage is distinctly stated to have been celebrated out of any diocese, out of any actual or presumed jurisdiction of any ordinary, nay out of the kingdom, such marriage cannot be inquired into and certified by the bishop. Therefore where the trial cannot be by certificate, it is a fundamental and incontrovertible proposition, that the trial is to *be by the country; and for a reason which is unanswerable, that there may not be a failure of jus

[ *464 ] tice.(r)

Of the fact of marriage the temporal courts ought to undertake the trial, and always do when the fact only is in question, as is usually the case in personal actions.(s) Thus where a father covenanted, on the marriage of his daughter with B., to assure copy holds: and in an action on the covenant, alleging a lawful marriage, it was objected that it ought to be tried by the certificate from the bishop, but it was held that the trial should be by a jury, for the marriage


writ, to make the inquiry, he must not sur. and that he hath found by lawful proofs, and cease for any appeal or inhibition but inust other canonical requisites in that behalf, proceed until he hath certified the king's that such person (as the case shall be) was court thereof; and then when the bishop or was not accoupled in lawful matrimony. hath received the king's writ he doth give For he must certify the point at issue gennotice thereof unto the party who took ex. erally, and not make a special verdict of it, ception to the matrimony at his dwelling- or express the manner of the marriage at house, if he hath any, within the diocese, io large. And after certificate made there speak at a day prefixed by him against the shall be no appeal, but the same certificate matrimony if he will; and after such notice shall be a bar, and conclude all partics for. given, whether the party coine or not, the And after such certificate and re. witnesses of the demandant to prove the summons of the tenant in the king's tempo. legality of the matrimony are taken and ral court, judgment shall be given for the admitted by the bishop, if no sufficient ex. plaintiff. (Hughes, 293, 294; 2 Burn's Eccl. ception be taken to the witnesses. After L. 486, 487; see Park on Dower, 290, 291.) the depositions taken they are published, (v) Vin. Abr. Trial, (P.) pl. 22. and certified into the king's court, where (9) De Grey, C. J., Duchess of Kingston's the issue was joined by letters under the case, 20 How. St. Tr. 538, 539, n. great seal of the bishop, importing that in (r) Ilderton v. Ilderton, 2 H. BI. R. 159. pursuance of the said writ he hath made See Hardres's R. 65. due inquiry, according to the ecelesiastical (8) Basset v. Morgan, 1 Lev. 41 ; 2 Roll. laws, into the matters therein contained; Ab. 584 ; Vin. Abr. Trial (P.) 21, pl. 43.

only was in issue, and not the lawfulness of it.(0) In an action of debt on a bond, the plea of never joined in lawful matrimony, which admits a marriage, but denies the legality of it, will not be admitted, for a marriage de facto is sufficient.(u)' The fact of a second mar. riage during the existence of a former marriage, is a question for the decision of a jury on a trial of ejectment.(v)

The determination of any question concerning what power or jurisdiction belongs to ecclesiastical judges in any particular case, belongs to the judges of the common law.(x) The judges of the temporal courts have full cognizance of what marriages are within the Levitical degrees, and what not ;(y) and will prohibit the ecclesiasti. cal court from proceeding upon any other construction than that adopted by the former couris.(2) And they may prohibit the ecclesiastical court from questioning marriages as incestuous, which the tem• poral courts consider not to be so.(a)

Prohibition.]—There are many jarring decisions on prohibitions, for when the power of the church ran very high, the judges were cautious in granting prohibitions; when it did not run so high, the judges ventured to go further in granting them.(6) It is well known ihat, in formner times, a considerable degree of jealousy subsisted [ *465 ]

between the common #law courts and those of ecclesias

tical jurisdiction. But, as it is observed by a late learned judge, “ Times are changed--a more liberal and enlightened view of questions of jurisdiction is taken ; on the one hand, these courts have no disposition to encroach, ampliare jurisdictionem; or, on the other hand, temporal courts have no jealousy, no wish to resort to fictions and technicalities; they look (where not bound by former decisions directly in point) to the real substance and sound sense of the question-o that which is really bencficial to the suitors, the public, and the subjects of the country. There is quite as much business in all the courts as, under the increase of wealth and population, the institutions are able to discharge."(c) A prohibition will be granted 10 the spiritual court in all cases where the ecclesiastical judge proceeds in a matter out of his jurisdiction, (d) though the temporal court has not cognizance of the matter for which the libel is in the spiritual court for it is a sufficient cause for a prohibition, that the ecclesiastical court, exceeds its jurisdiction.(e) The courts of common law have, in all cases in which matter of a temporal nature has incidentally arisen, granted prohibitions to courts acting by the rules of the civil law, where such courts have decided on such temporal matters in a manner different from that in which the courts of common law would decide upon the same.(f) A prohibition to the spiritual court may be granted by the court of chancery.(g) The sentence of the ecclesiastical court cannot be reversed in a summary way, but by

(t) Fletcher v. Pynsett, Cro. Jac. 102.
(u) Alleyne v. Grey, 2 Salk. 437.
(0) Pride v. Earl of Bath, 1 Salk. 120.
(3) Fuller's case, 12 Rep. 41.
(y) Harrison v. Burwell, Vaugh. 207.

(z) Duchess of Kingston's cuse, 20 How. St. Tr. 541, n.

(a) Vaugh. 207. (6) Willos, 680.

(c) Sir J. Nicholl, 1 Hagg. Fccl. R. 545.

(d) 2 Roll. 313, l. 42; Com. Dig. Prohibition, (A. 2,) (F. 1).

(e) Godb. 246, 247; Com. Dig. Prohibi: tion, (F. 1).

(f) Gould v. Gapper, 5 East, 371.

(g) Fitz. N. B. 40, N.; Com. Dig. Prohi. bition, (B).

appeal only to the proper judges ; nor can a prohibition to that court be granted upon a petition, but it may be done by motion, and a proper suggestion, showing that they have no jurisdiction.(h)

Though the ecclesiastical courts have ihe sole cognizance of the validity of marriages, yet where statutes are made upon such points of exclusive jurisdiction, the courts of common law have a right of issuing a prohibition, if the ecclesiastical courts vary from those courts in the interpretation which they *put upon them; and this even after sentence, and although the objection do not

[ *466 ] appear upon the face of the libel, but is collected from the whole of the proceedings in the court below.(i) Where in prohibition the plaintiff declared that he had excepted to the libel in the ecclesiastical court on one ground, that the judge of that court would have to decide as to the construction of an act of parliament; it was held, that as it did not appear that the court were proceeding 10 decide on the act, or contrary to the common law, no ground was laid for prohibition.(k)

A point of practice is never a ground of a prohibition, though it is sometimes of a writ of error.(l). The temporal courts cannot take notice of the practice of the ecclesiastical courts, or entertain a question whether, in any particular cause admitted to be of ecclesiastical cognizance, the practice has been regular. The only instances in which the temporal courts can interfere by way of prohibiting any particular proceeding in an ecclesiastical suit are those in which something is done contrary to the general law of the land, or mani. festly out of the jurisdiction of the court.(m)

The course of practice of an ecclesiastical court is matter of fact, to be proved by evidence ;(n) or a certiorari may be issued to the judge of an inferior jurisdiction to return the practice of the court.(0)

A defendani cited in the ecclesiastical court must appear before he can apply for a prohibition.(p) Upon motion for a prohibition, the court of Queen's Bench is not bound to wait till the suit in the spiritual court is actually at issue ; if the latter is clearly in progress towards the trial of a question, over which it has no jurisdiction, prohibition lies forthwith.(9) A prohibition does not lie after sentence, unless it appears by *the sentence that the ecclesiastical

[ *467 ] court has pronounced on matters cognizable at common law, although there are several articles contained in the libel, some of which are so cognizable.(r)

Proceedings in prohibition.]—By statute 1 Will. 4, c. 21, s. 1, it is enacted, that it shall not be necesssry to file a suggestion on any appli

(4) Hill v. Turner, 1 Atk. 515.

(0) Williams v. Bogot, 4 Dowl. & R. 315. li) Gould . Gapper, 5 East, 345. See (p) Ex parle Law, 2 Dowl. P. C. 528; 2 Lord Camden v. Home, 4 T. R. 397; Black. Ad. & Ell. 45; S. C. nom. Rex v. Mills, 4 ett v. Blizard, 9 B. & C. 851; 4 M. & R. Nev. & M. 8. 641; Burgoyne v. Free, 2 Addams, 418. (9) Byerly v. Windus, 7 D. & R. 564; 5

(k) Hall v. Muule, 3 Nev. & P. 459 ; 1 B. & c. 1. Ad. & Ell. 726.

(r) Hart v. Marsh, 5 Dowl. P. C. 424; 1 () Ex parte Smyth, 2 Cr. M. & Rosc. Nev. & P. 62 ; 5 Ad. & EH. 591 ; Full

. v. 754; 1 Tyrw. & Gr. 226.

Hutchins, Cowp. 422; Gardner v. Booth, (m) Ex parte Smyth, 3 Ad. & El. 724. Salk. 548; Bac. Abr. Eccl. Courts, (C.) (n) Beauruin v. Scott, 3 Campb. 388.

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