charge for himself. The defendant pleaded not guilty, and found against him; and it was moved in arrest of judgment, that an action lay not in this matter, for it is spiritual, whereof the temporal law takes not any regard. But the whole Court resolved that the action was maintainable, for although the excommunication be spiritual, and so is the denouncing thereof, yet the razing and alteration thereof is merely temporal, for which an action well lieth at the Common Law, wherefore it was adjudged for the plaintiff. (Cro. Eliz. 838.)

In the case of Bray v. Patrid, Popham said, "If a man libels in the spiritual court for a temporal matter, then peradventure an action on the case will lie." (Cro. Eliz. 836.)

Will it be maintained that damage sustained by a refusal to marry is not a temporal matter? Loss of fortune, connection, and estate are involved in it, and these surely are not spiritual concerns merely. If, then, a priest obstructs a marriage by refusing after licence to perform it, he is just as liable to answer for that temporal injury as Wallinger, above named, for the injury he inflicted on Kenton.

*

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II. Lord Coke, 4th Inst. cap. lxxiv. defines the authority of the Ecclesiastical Courts to be, "to declare and determine of such doubts and to administer all such offices and duties as to their rooms [jurisdiction] spiritual doth appertain. * And the laws temporal for trial of property, of lands and goods, and for the conservating the people of this realm in unity and peace, without rapine or spoil; and both their authorities and jurisdictions do conjoin together in the due administration of justice, the one to help the other." Surely the mere suspension of a contumacious clergyman could not be considered a due administration of justice, for the party to whom he does the greatest injury is still unredressed. Nor can the privilege of solely deciding such cases, claimed by ecclesiastical judges, be rightly called a conjoining together the one to help the other. The words of Lord Hardwicke on the 18th of Elizabeth, c. 3, concerning the punishment of the mothers and reputed fathers of bastard children, are applicable here. We cite them to show that both by common law and statutes the other courts interfere with the spiritual jurisdiction.

"This statute inflicts a temporal punishment upon an act of lewdness, not as such, viz. a spiritual offence and mere inconvenience, but to prevent undue charges being brought upon parishes. The spiritual court punishes it by penance and ecclesiastical censures, as it is a crime of incontinence, a spiritual offence, a publick scandal to the church; the statute punishes a consequence arising from it, the having a bastard, as that may infer an unjust burthen on the parish where it is born; and these punishments being diverso intuitu, in these different respects, the one for the criminal act directly, the other on account of a particular evil consequence arising from it, have been suffered to go on hand in hand ever since the making of the statute, and it was never imagined that the one had repealed the other." (3 Atk. 673.)

They have so interfered even in the case of officers of the Court, on which, as might be expected, no slight jealousy was felt. "If a monition be awarded to an apparitor to summon a man, and he, upon the return of a monition, avers that he had summoned him, when in truth he had not, and the defendant be thereby excommunicated, an action on the case at common law will lie against the apparitor for the falsehood committed by him in his office, besides the punishment inflicted on him by the Ecclesiastical Court for such breach of trust." (Angl. Parerg. 10; 2 Bulstr. 264.) Shall it be said that for so trivial a matter as the fraudulent return of an apparitor, the law courts can interfere, while from the important one under consideration they are entirely barred? This will scarcely be alleged.

In Williams's case (5 Rep.), an action was brought by the plaintiff against Jones, clerk, in which the declaration alleged that the said defendant was bound by himself or another chaplain to perform divine service in the plaintiff's chapel at Woolaston. The defendant was found guilty. But on motion for arrest of judgment," and the matter well debated at the bench, at last it was resolved by Popham, C. J. and the whole Court, that in this case an action on the case did not lie, but the remedy which the plaintiff has, is to sue in the spiritual court; but if the chapel had been private only for himself and his servants and family within the said manor, there a private action on the case on

the prescription would be maintainable by the lord of the manor; and although the divine service be spiritual, yet, forasmuch as it doth by prescription belong to a private person, and to be celebrated for his ease within his manor, therefore for the not doing of this spiritual service, an action in the case lies, and damages shall be recovered, and therewith agrees 22 Hen. VI., 46, in the Prior of Wooburn's case."

In Herbert's case (3 Peere Williams, 115) the right of judicial interference by a Court of Equity was clearly established. "Mr. Herbert was an infant of eighteen years of age, and seised of an estate of £1,200 per annum ; and in a cause depending in the Rolls Court, the guardianship of the infant was committed to the custody of Sir Thomas Clarges, as his guardian appointed by the Court. Mr. Herbert, the infant, was sent to the University of Oxford, from whence, coming to town upon some occasion, he was drawn in to marry a common servant maid, older than himself, and of no fortune. One Phillips, a parson, married them, and he had several blank licences under the seal of the proper officer, which were used to be filled up by the said Phillips; and one Williams, who pretended to be a counsellor-at-law, took upon him to be guardian to the infant, and to consent to his marrying this servant maid.” For this they were brought before the Master of the Rolls, and "severely censured' for the contempt, and the marriage was declared void. It does not appear that in this case the Court interfered any further; but it establishes the right of bringing clergymen to the bar for their misconduct in matters of marriage, and is therefore important.

In More v. More (2 Atk.), Mr. Charles, the clergyman of the church in which the parties were married, was brought before the Court, and would have been committed for the contempt, but for his affidavit that he was not in any way concerned in bringing about the marriage.

In Priestley v. Lamb (6 Vesey) upon a marriage of a ward of chancery under flagrant circumstances the clergyman and clerk were ordered to attend, the husband was committed, and the Lord Chancellor directed the proceedings to be laid before the Attorney-General, expressing his opinion that contriving a marriage without a due publication of banns is a

conspiracy at common law;" and in Nicholson v. Squire (16 Vesey, 261) Lord Eldon said, " If a clergyman, not using due diligence, marries persons, neither of whom is resident in the parish, he is liable at least to ecclesiastical censure, perhaps to other consequences.

III. By 25 Hen. VIII., c. 19, s. 2, it is enacted, "that no canons, constitutions or ordinances shall be made or put in execution within this realm, by authority of the convocation of the clergy, which shall be contrarient or repugnant to the king's prerogative royal, or the customs, laws, or statutes of this realm." We have looked through all the canons in force before the Reformation, and have not been able to find any one in which spiritual courts have reserved to themselves the exclusive right of trying clergymen for injuries of the description in question. Nor have we discovered any canon of the kind since the Reformation, or any statute at all recognising such right. We therefore apprehend that, there being no such privilege recognised by law, clergymen are not for this conduct shielded from the interposition of law courts.

In Cowdrie's case (5 Rep. 32 b), Lord Coke says, "If it be demanded what canons, constitutions, ordinances, and synodials provincial are still in force within this realm, I answer that it is resolved and enacted by authority of parliament, that such as have been allowed by general consent and custom within this realm, and are not contrarient or repugnant to the laws, statutes, and customs thereof, nor to the damage or hurt of the king's prerogative royal, are still in force within this realm as the king's ecclesiastical laws of the same. Now as consent and custom hath allowed these canons, so no doubt by general consent of the whole realm any of the same may be corrected, enlarged, explained, or abrogated." In Middleton & Uxor v. Crofts (2 Atk. 657), Lord Hardwicke said, "The constant uniform practice ever since the Reformation (for there is no occasion to go further back) has been that when any material ordinances or regulations have been made to bind the laity as well as clergy in matters merely ecclesiastical, they have been either enacted or confirmed by parliament; of this proposition the several acts of uniformity are so many proofs, for by these the whole doctrine and worship, the very rights and ceremonies of the church, and the literal

form of publick prayers are prescribed and established; and it is plain from the several preambles of these acts, that though the matters were first considered and approved in convocation, yet the convocation was only looked upon as an assembly of learned men, able and proper to prepare and propound them, but not to enact and give them their force." These passages, we think, very clearly establish our third proposition. Where there is no law prohibiting temporal interference, it may be inferred that temporal interference is allowed. It is on a like parity of reasoning that the 32nd article is based. Bishops, priests and deacons are not commanded by God's law either to vow the estate of single life or to abstain from marriage. Therefore it is lawful for them, as for all other Christian men, to marry at their own discretion." In a similar way the law courts may argue. The courts of law are not prohibited by statute law, or by canons made before the Reformation from interfering with the jurisdiction of spiritual courts in cases of a refusal to marry; therefore it is lawful for them, as in every other case of tort, to interfere and punish the wrong-doer.

IV. "The general divisions of actions on the case," says Bacon,1 "is that they arise from a non-feasance, mal-feasance, or mis-feasance." Non-feasance is the non-performance of some obligation of law which binds a party either expressly or by implication. Of the origin of actions Bracton2 says, "Quum autem nascantur actiones ex obligationibus quæ ex contractu vel quasi substantiam capiunt, et etiam ex malefitio vel quasi, videndum est in primis quid sit obligatio * * * * Obligatio est juris vinculum, quo necessitate astringimur ad aliquid dandum aut faciendum." It is also called negligence, and is thus defined: "Negligence is where a person neglects or omits to do a thing which he is by law obliged to."3 For negligence an action will lie, for "actio nihil aliud est quam jus prosequendi, in judicio quod sibi debetur," or a legal demand of one's right; and a man may be deprived of this by negligence as effectually as by malice, and both are equally tortious. In Comyn's Digest, Action upon the Case for Negligence, A. 2, the principle is broadly laid down, “ In all

1 Abr. 1, 87.

3 Doctor and Student, p. 269.

2 De Leg. fol. 99.

4 Co. Lit. 285.