ration, may have against her husband, if he neglects or refuses to make her an allowance fuitable to their station in life. This is an injury to the wife, and the court christian will redress it by affligning her a competent maintenance, and compelling the husband by ecclefiaftical cenfures to pay it. But no alimony will be affigned in cafe of a divorce for adultery on her part; for as that amounts to a forfeiture of her [95] dower after his death, it is also a fufficient reason why she fhould not be partaker of his estate when living. 3. TESTAMENTARY caufes are the only remaining fpecies, belonging to the ecclefiaftical jurifdiction; which, as they are certainly of a mere temporal nature, may feem at first view a little oddly ranked among matters of a spiritual cognizance. And indeed (as was in fome degree observed in a former volume) they were originally cognizable in the king's courts of common law, viz. the county courts2; and afterwards transferred to the jurifdiction of the church by the favour of the crown, as a natural confequence of granting to the bifhops the adminiftration of inteftates' effects. THIS fpiritual jurifdiction of teftamentary caufes is a peculiar conftitution of this ifland; for in almoft all other (even in popith) countries all matters teftamentary are under the jurifdiction of the civil magiftrate. And that this privilege is enjoyed by the clergy in England, not as a matter of ecclefiaftical right, but by the special favour and indulgence of the municipal law, and as it should feem by fome public act of the great council, is freely acknowleged by Lindewode, the ableft canonift of the fifteenth century. Teftamentary causes, he obferves, belong to the ecclefiaftical courts "de confuetudine "Angliae, et fuper confenfu regio et fuorum procerum in talibus "ab antiquo conceffo." The fame was, about a century before, very openly profeffed in a canon of archbishop Stratford, viz. that the adminiftration of inteftates' goods was "ab olim" granted to the ordinary, "confenfu regio et mag x Warburt, alliance. 173. y Book II. ch. 32. z Hickes Differ. Epistolar. pag. 8. 58. a Provincial. 1. 3. t. 13. fol. 176. "natum The conftitutions of cardinal "natum regni Angliae." Othobon alfo teftifies, that this provifion "olim a praelatis cum "approbatione regis et baronum dicitur emanaffes." And archbishop Parker, in queen Elizabeth's time, affirms in exprefs words, that originally in matters teftamentary "non ullam "habebant epifcopi authoritatem, praeter eam quam a rege ac- [ 96 ] "ceptam referebant. Jus teftamenta probandi non habebant, "adminiftrationis poteftatem cuique delegare non poterant.” AT what period of time the ecclefiaftical jurifdiction of teftaments and inteftacies began in England, is not afcertained, by any antient writer: and Lindewode very fairly confeffes, "cujus regis temporibus hoc ordinatum fit, non reperio." We find it indeed frequently afferted in our common law books, that it is but of late years that the church hath had the probate of wills f. But this muft only be understood to mean, that it hath not always had this prerogative: for certainly it is of very high antiquity. Lindewode, we have feen, declares that it was "ab antiquo;" Stratford, in the reign of king Edward III, mentions it as "ab olim ordinatum ;" and cardinal Othobon, in the 52 Hen. III, fpeaks of it as an antient tradition. Bracton holds it for clear law in the fame reign of Henry III, that matters teftamentary belonged to the fpiritual court. And, yet earlier, the difpofition of inteftates' goods "per vifum ecclefiae" was one of the articles confirmed to the prelates by king John's magna carta". Matthew Paris alfo informs us, that king Richard I. ordained in Normandy, 66 quod diftributio rerum quae in teflamento relinquuntur auto"ritate ecclefiae fiet." And even this ordinance, of king Richard, was only an introduction of the fame law into his ducal dominions, which before prevailed in this kingdom: for in the reign of his father Henry II. Glanvil is exprefs, that "fi quis aliquid dixerit contra teflamentum, placitum illud b Ibid, 1. 3. t. 38. fol. 263. с сар. 23 d See 9 Rep. 38. e fol. 263. f Fitz. Abr.tit.teftament.pl.4. 2 Roll. Abr. 217. 9 Rep. 37. Vaugh. 207. 1. 5. de exceptionibus.c. 10. h cap. 27. edit. Oxon. "in curia chriftianitatis audiri debet et terminari." And the Scots book called regiam majeftatem agrees verbatim with Glanvil in this point *. It appears that the foreign clergy were pretty early ambitious of this branch of power: but their attempts to assume [97] it on the continent were effectually curbed by the edict of the emperor Juftin', which reftrained the infinuation or probate of teftaments (as formerly) to the office of the magister cenfus: for which the emperor fubjoins this reafon; “absur"dum etenim clericis eft, immo etiam opprobriofum, fi peritos fe "velint oftendere difceptationum effe forenfium." But afterwards by the canon law it was allowed, that the bifhop might compel by ecclefiaftical cenfures the performance of a bequeft to pisus ufes. And therefore, as that was confidered as a caufe quae fecundum canones et epifcopales leges ad regimen animarum pertinuit, it fell within the jurifdiction of the spiritual courts by the exprefs words of the charter of king William I, which feparated thofe courts from the temporal. And afterwards when king Henry I by his coronation-charter directed, that the goods of an inteftate fhould be divided for the good of his foul", this made all inteftacies immediately fpiritual causes, as much as a legacy to pious ufes had been before. This therefore, we may probably conjecture, was the aera referred to by Stratford and Othobon, when the king, by the advice of the prelates, and with the confent of his barons, invefted the church with this privilege. And accordingly in king Stephen's charter it is provided, that the goods of an inteftate ecclefiaftic fhall be diftributed pro falute animae ejus, ecclefiae concilio ; which latter words are equivalent to per vifum ecclefiae in the great charter of king John before-mentioned. And the i l. 7. c. 8. kl. 2. c. 38. 1 Cod. 1. 3. 41. Danes and Swedes (who re difpofuerit, uxor fua, five liberi, aut pa rentes et legitimi bomines ejus, cam proanima ejus dividant, ficut eis melius vifum m Decretal. 3. 26. 17. Gilb. Rep. fuerit. (Text. Reffens. c. 34. p. 51.) 204, 205. n Si quis baronum feu bominum meoTum-pecuniam fuam non dederit vel dare • Lord Lyttlet. Hen. II. vol. I. 536. Hearne ad Gal. Neubr. 711. ceived the rudiments of christianity and ecclefiaftical discipline from England about the beginning of the twelfth century) have thence alfo adopted the fpiritual cognizance of inteftacies, teftaments, and legacies P. THIS jurifdiction, we have seen, is principally exercised with us in the confiftory courts of every diocefan bishop, and in the prerogative court of the metropolitan, originally; and [98] in the arches court and court of delegates by way of appeal. It is divifible into three branches; the probate of wills, the granting of administrations, and the suing for legacies. The two former of which, when no oppofition is made, are granted merely ex officio et debito juftitiae, and are then the object of what is called the voluntary, and not the contentious jurif diction. But when a caveat is entered against proving the will, or granting adminiftration, and a fuit thereupon follows to determine either the validity of the teftament, or who hath a right to adminifter; this claim and obftruction by the adverse party are an injury to the party entitled, and as fuch are remedied by the fentence of the fpiritual court, either by establishing the will or granting the administration. Subtraction, the withholding or detaining, of legacies is also ftill more apparently injurious, by depriving the legatees of that right, with which the laws of the land and the will of the deceased have invefted them: and therefore, as a confequential part of teftamentary jurifdiction, the fpiritual court adminifters redrefs herein, by compelling the executor to pay them. But in this laft cafe the courts of equity exercise a concurrent jurifdiction with the ecclefiaftical courts, as incident to fome other fpecies of relief prayed by the complainant; as to compel the executor to account for the teftator's effects, or affent to the legacy, or the like. For, as it is beneath the dignity of the king's courts to be merely ancillary to other inferior jurifdictions, the caufe, when once brought there, receives there alfo it's full determination. THESE are the principal injuries, for which the party grieved either muft, or may, feek his remedy in the fpiritual P Stiernhook, de jure Sueon. 1. 3. c. 8. courts. courts. But before I entirely difmifs this head, it may not be improper to add a fhort word concerning the method of proceeding in these tribunals, with regard to the redrefs of injuries. Ir muft (in the first place) be acknowleged, to the honour of the spiritual courts, that though they continue to this [99] day to decide many questions which are properly of temporal cognizance, yet juftice is in general fo ably and impartially administered in those tribunals, (especially of the fuperior kind) and the boundaries of their power are now fo well known and established, that no material inconvenience at present arises from this jurifdiction ftill continuing in the antient channel. And, fhould an alteration be attempted, great confufion would probably arise, in overturning long established forms, and new-modelling a courfe of proceedings that has now prevailed for seven centuries, THE establishment of the civil law procefs in all the ecclefiaftical courts was indeed a masterpiece of papal difcernment, as it made a coalition impracticable between them and the national tribunals, without manifeft inconvenience and hazard. And this confideration had undoubtedly it's weight in caufing this measure to be adopted, though many other caufes concurred. The time when the pandects of Justinian were discovered afresh and refcued from the duft of antiquity, the eagerness with which they were ftudied by the popish ecclefiaftics, and the confequent diffentions between the clergy and the laity of England, have formerly been spoken to at large. I fhall only now remark upon those collections, that their being written in the Latin tongue, and referring fo much to the will of the prince and his delegated officers of justice, fufficiently recommended them to the court of Rome, exclufive of their intrinfic merit. To keep the laity in the darkeft ignorance, and to monopolize the little fcience, which then exifted, entirely among the monkish clergy, were deep 4 Vol. I. introd. § г. rooted |