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ment. Besides which all offerings, oblations, and obventions not exceeding the value of 40 s. may be recovered in a summary way, before two justices of the peace i. But care must be taken that these are real and not imaginary dues; for, if they be contrary to the common law, a prohibition will issue out of the temporal courts to stop all suits concerning them. As where a fee was demanded by the minister of the parish for the baptism of a child, which was administered in another placek; this, however authorized by the canon, is contrary to common right: for of common right no fee is due to the minister even for performing such branches of his duty, and it can only be supported by a special custom'; but no custom can support the demand of a fee without performing them at all.
For fees also, settled and acknowledged to be due to the officers of the ecclesiastical courts, a suit will lie therein : but not if the right of the fees is at all difputable; for then it must be decided by the common law m. It is also said, that if a curate be licenced, and his salary appointed by the bishop, and he be not paid, the curate has a remedy in the ecclefiaftical court": but, if he be not licenced, or hath no such salary appointed, or hath made a special agreement with the rector, he must sue for a satisfaction at common law°; either by proving such special agreement, or else by leaving it to a jury to give damages upon a quantum meruit, that is, in confideration of what he reasonably deserved in proportion to the service performed,
Under this head of pecuniary injuries may also be reduced the several matters of spoliation, dilapidations, and neglect of repairing the church and things thereunto belonging ; for which a satisfaction may be sued for in the ecclefiaftical court.
SPOLIATION is an injury done by one clerk or incumbent to another, in taking the fruits of his benefice without any
i Stat. 7 & 8 W. III. c. 16. m Ventr. 165.
Burn. eccl. law. 438.
right right thereunto, but under a pretended title. It is remedied by a decree to account for the profits fo taken. This injury, when the jus patronatus or right of advowson doth not come in debate, is cognizable in the spiritual court: as if a patron first presents A to a benefice, who is instituted and inducted thereto; and then, upon pretence of a vacancy, the firme patron presents B to the same living, and he also obtains institution and induction. Now, if the fact of the vacancy be disputed, then that clerk who is kept out of the profits of the living, whichever it be, may sue the other in the spiritual court for fpoliation, or taking the profits of his benefice. And it shall there be tried, whether the living were, or were not, vacant; upon which the validity of the second clerk's pretensions must depend'. But if the right of patronage comes at all into dispute, as if one pairon presented A, and another patron presented B, there the ecclesiastical 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 P. So also if a clerk, without any colour of title, ejects another from his parfonage, this injury must be redressed in the temporal courts : for it depends upon no question determinable by the spiritual law, (as plurality of benefices are 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, parfonage-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 4, and it may be brought by the fucceffor against the predeceflor, 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 OF. N: B. 36.
Ar:ic. Cleri. gEJw. II. c.2. F.N.B.45. P Ciriwmagebie agatis ; 73 Edw. I. 4.4. 4 Cart. 224. 3 Lev. 268.
the church, unless for necessary repairs?: and that a writ of prohibition will also lie against him in the courts of common laws. 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 succesor shall have such remedy against the alienee, in the ecclefiaftical 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 forfeitivg double the value to the crown.
As to the neglect of reparations of the church, churchyard, and the like, the spiritual court has undoubted cognizance thereof s; and a suit may be brought therein for nonpayment of a rate made by the church-wardens for that purpose. And these are the principal pecuniary injuries, which are cognizable, or for which suits may be instituted, in ecclefiaftical 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 right of mere civil contracts, they do not seem to be properly of spiritual cognizance. But the Romanists having very early converted this contract i!ito 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 difpensed with, by the holy fee, 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 PIRoll. Rep. 86. II Rep.98. Godb. 259. Circumspecte agaris. 5 Rep. 66. ( 3 Buifti. 158. Roll. Rep. 335. .
i Warb. alliance, 173.
to the humour or interest of the reigning pontiff: besides a thousand nice and difficult scruples, with which the clergy of those ages puzzled the understandings and loaded the conscio' ences 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 causes indeed, partly from the nature of the injuries complained of, and partly from the clerical method of treating them v, foon became too gross for the modesty of a lay tribunal. And causes matrimonial are now so peculiarly ecclefiaftical, 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".
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 filence upon that head; which is the only remedy the ecclefiaftical 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 celebration of marriage in facie ecclesiae, for or because of any contrazt 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 volume w, are causes thoroughly matrimonial, and cognizable by the ecclefiaftical judge. If it becomes improper, through some supervenient cause arising ex poft facto, that the parties should live together any longer; as through intolerable cruelty, adultery, a perpetual disease, and the like (3); 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 menfa 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 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 the suit for alimony, a term which fignifies maintenance : which suit the wife, in case of sepa
v Some of the impurest books, that jects of matrimony and divorce. are extant in a 'y langua:c, are those w 2 Inft. 614. written by the popith clergy on the sub
w Book. I. ch. 15.
(3) It has lately been determined by the court of delegates, that the public infamy of the husband, arising from a judicial conviction of an attempt to commit an unnatural crime, is a sufficient cause for the ecclesiastical courts to decree a separation a menja et there. Feb. 1794.