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.(ƒ) 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, the 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 matrimony.(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.

(c) Steadman v. Powel!, 1 Addams, 58; Browning v. Reane, 2 Phill. R. 69; Braham v. Burchell, 3 Addams, 243; Barnes v. M Bride, 4 Hagg. Eccl. R. 378.

(d) Elliott v. Gurr, 2 Phill. R. 16.

if they hold plea in court Christian of such things as be merely spiritual, that is to wit, of penance enjoined by prelates for deadly, sin, as fornication, adultery, and such like, for the which sometimes corporal penance, 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.

(ƒ) 7 Rep. 43.

(g) Co. Litt. 344 a. The statute 13 Edw. 1, called the statute Circumspecte Agatis, and 9 Edw. 2, called Articuli Cleri, are the most ancient as well as the principal statutes which declare in what cases the ecclesiastical courts have jurisdiction. The words of the first are," the king to his judges sendeth greeting, use yourselves circumspectly in all matters concerning the Bishop of Nowich (who is only put for an example, for it extendeth to all the bishops within the realm, 2 Inst. 487,) and his clergy, punishing them

Several other ecclesiastical matters are mentioned.

By a decree of the Council of Trent, which is not received as law here, (ante p. 18,) it is declared, Si quis dixerit causas matrimoniales non spectare ad judices ecclesiasticos; anathema sit. Concilii Trident, Sess. 24, Can. 12, p. 248, ed. 1615.

(h) Beaurain v. Sir W. Scott, 3 Campb. 388; Ex parte Jenkins, 1 B. & Cress. 655; 3 Dowl. & R. 41; but see Ackerley v. Parkinson, 3 Maule & S. 411; post p. 464. (i) Hill v. Turner, 1 Atk. 515. (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 courts, 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 Temporal 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, they 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

(4) Ante, p. 67-69.

(m) Aute, p. 148-153.

(n) See Hagr. Law Tracts, 452.

(0) All real actions, except a writ of right of dower or writ of dower unde nihil habet, or a quare impedit, or ejectment, were abolished by stat. 3 & 4 Will. 4, c. 27, s. 36. If the tenant, in an action of dower unde nihil habet, controverts the validity of the demandant's marriage with the person out of whose lands she claims dower, he may plead ne unques accouple en loyal matrimonie, (Co. Ent. 180 a; Com. Dig. Pleader, (2 Y. 10)). To which plea the demandant must reply that she was accoupled in law. ful matrimony at B., in such a diocese, upon which a writ issues to the bishop of that diocese, requiring him to certify the fact to the court, (Co. Ent. 180 a; Rast. Ent. 228 b; Dyer, 313, a-368, b; Ilderton v. Ilderton, 2 H. Bl. 145.) The demandant cannot reply a sentence in the ecclesiastical court, declaring the marriage valid, for that is only matter of evidence, of which the bishop is the proper judge; but if the bishop has already certified the matter to the court, that certificate may be replied, and shall be a good estoppel against all the world, (Robins v. Crutchley, 2 Wils. 122. 127; Br. Ab. Estop. 78, as to bastardy.) As the bishop is the proper judge of marriage or no marriage, bigamy cannot be specially pleaded, but the tenant must plead ne unques accou. ple, &c. and contest the marriage in the Bishop's court, (Br. Ab. Dower, 54.) If the court in which the dower is demanded be an inferior jurisdiction which cannot write to the bishop, the record may be removed by millimus into the Common Pleas, and

when the certificate is returned into that court the record may be remanded, as in case of foreign voucher, to the court below. None but the superior courts of record, as the Queen's Bench, Common Pleas, justices of gaol delivery, and the like, can write to the bishop, (Co. Litt, 134 a; Co. Ent. 180 b; Com. Dig. Pleader, (2 Y. 10); Booth, 167.) If the marriage was celebrated in Scotland, where there is no episcopal establishment, the fact must of necessity be tried by a jury, and, therefore, the replication should conclude to the country, and the issue will be tried in the county where the venue is laid; (Ilderton v. Ilderton, 2 H. Bl. 145); but unless the marriage be in Scotland, or some foreign country, if the replication to the plea of ne unques accouple, &c., conclude to the country, will be bad, (Robins v. Crutchley, 2 Wils. 128.) The bishop must return to the certificate the fact of marriage or not, and not the special matter or evidence, (Dyer, 305, b, 313 b; Eastbery v. Easterby, Barnes, 1; 2 Rol. Ab. 591. As to the mode of proceeding in the bishop's court, see Park on Dower, 290.) If the cer. tificate be insufficient a new writ goes to the bishop, (2 Towns. Judg. 95, 96.) If the plaintiff will not sue out this writ, the defendant may do so upon notice to the plaintiff or motion, (Smith v. Smith, T. Jones, 38; see Roscoe on Real Actions, 220, 221.) The inquisition is taken before the bishop in the following manner :-The writ is sent to the bishop to make the inquiry; for the ecclesiastical judge, before he hath received the king's writ, may not of himself inquire of the lawfulness of the matrimony; but after such time as he hath received the said

[463]

its immediate consequence * general bastardy,"(p) or in like manner in some other particular instances, lying peculiarly 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 insufficient 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.(g)

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 [ *464 ] unanswerable, that there may not be a failure of justice.(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 copyholds: 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 surcease for any appeal or inhibition but must proceed until he hath certified the king's court thereof; and then when the bishop hath received the king's writ he doth give notice thereof unto the party who took exception to the matrimony at his dwellinghouse, if he hath any, within the diocese, to speak at a day prefixed by him against the matrimony if he will; and after such notice given, whether the party come or not, the witnesses of the demandant to prove the legality of the matrimony are taken and admitted by the bishop, if no sufficient exception be taken to the witnesses. After the depositions taken they are published, and certified into the king's court, where the issue was joined by letters under the great seal of the bishop, importing that in pursuance of the said writ he hath made due inquiry, according to the ecelesiastical laws, into the matters therein contained;

and that he hath found by lawful proofs, and other canonical requisites in that behalf, that such person (as the case shall be) was or was not accoupled in lawful matrimony. For he must certify the point at issue generally, and not make a special verdict of it, or express the manner of the marriage at large. And after certificate made there shall be no appeal, but the same certificate shall be a bar, and conclude all partics forever. And after such certificate and resummons of the tenant in the king's temporal court, judgment shall be given for the plaintiff. (Hughes, 293, 294; 2 Burn's Eccl. L. 486, 487; see Park on Dower, 290, 291.)

(p) Vin. Abr. Trial, (P.) pl. 22.

(q) De Grey, C. J., Duchess of Kingston's case, 20 How. St. Tr. 538, 539, n.

(r) Ilderton v. Ilderton, 2 H. Bl. R. 159. See Hardres's R. 65.

(8) Basset v. Morgan, 1 Lev. 41; 2 Roll. Ab. 584; Vin. Abr. Trial (P.) 21, pl. 43.

only was in issue, and not the lawfulness of it.(t) 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 marriage 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 courts.(2) And they may prohibit the ecclesiastical court from questioning marriages as incestuous, which the temporal 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.(b) It is well known that, in former times, a considerable degree of jealousy subsisted between the common law courts and those of ecclesias[ *465 ] 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-to that which is really beneficial 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 to 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.
(v) Pride v. Earl of Bath, 1 Salk. 120.
(x) Fuller's case, 12 Rep. 41.

(y) Harrison v. Burwell, Vaugh. 207.
(z) Duchess of Kingston's case, 20 How.
St. Tr. 541, n.

(a) Vaugh. 207,

(c) Sir J. Nicholl, 1 Hagg. Eccl. R. 545. (d) 2 Roll. 313, 1. 42; Com. Dig. Prohibition, (A. 2,) (F. 1).

(e) Godb. 246, 247; Com. Dig. Prohibition, (F. 1).

(f) Gould v. Gapper, 5 East, 371. (g) Fitz. N. B. 40, N.; Com. Dig. Prohi bition, (B).

(b) Willes, 680.

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 the 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 to 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.(1) 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 manifestly 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.(o)

A defendant 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.(g) 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 necessary to file a suggestion on any appli

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

(i) Gould v. Gapper, 5 East, 345. Sec Lord Camden v. Home, 4 T. R. 397; Blackett v. Blizard, 9 B. & C. 851; 4 M. & R. 641; Burgoyne v. Free, 2 Addams, 418.

(k) Hall v. Muule, 3 Nev. & P. 459; 7 Ad. & Ell. 726.

(1) Ex parte Smyth, 2 Cr. M. & Rosc. 754; 1 Tyrw. & Gr. 226.

(m) Ex parte Smyth, 3 Ad. & Ell. 724. (n) Beaurain v. Scott, 3 Campb. 388.

(0) Williams v. Bogot, 4 Dowl. & R. 315. (p) Ex parte Law, 2 Dowl. P. C. 528; 2 Ad. & Ell. 45; S. C. nom. Rex v. Mills, 4 Nev. & M. 8.

(q) Byerly v. Windus, 7 D. & R. 564; 5 B. & C. 1.

(r) Hart v. Marsh, 5 Dowl. P. C. 424; 1 Nev. & P. 62; 5 Ad. & EH. 591; Full v. Hutchins, Cowp. 422; Gardner v. Booth, Salk. 548; Bac. Abr. Eccl. Courts, (C.)