Document Fragment View

Matching Fragments

Can there be any doubt that before the English Act of Parliament transferring the jurisdiction in matrimonial causes, from the Church and her Courts to the sovereign and her Court, the injured wife could have cited the adulterous husband before the bishop, and have asked either for a restitution of conjugal rights or for a divorce a menas et thoro, and in either case for proper alimony? The jurisdiction of the Court Christian was a jurisdiction over Christians, who, in theory, by virtue of the baptism, became members of the one Catholic and Apostolic Church. The church and its jurisdiction had nothing to do with the original nationality or acquired domicils of the parties, using the word domicil in the sense of the secular domicil, viz., the domicil affecting the secular rights, obligations, and status of the party. Residence, as distinct from casual presence on a visit or in itinere, no doubt was an important element; but that residence had no connection with, and little analogy to, that which we now understand when we endeavour to solve, what has been found so often very difficult of solution, the question of a person's domicil. If a Frenchman came to reside in an English parish his soul was one of the souls the care of which was the duty of the pariah priest, and he would be liable for any ecclesiastical offence to be dealt with by the ordinary, pro salute animae.... And although the laws of the state sometimes interfered by way of coercion, regulation, or prohibition, with the Courts Christian, the latter acted pruprio vigore, and they administered their own law, not the law of the state, and they administered it in their own name and not in the name of the sovereign. The language of the Act creating the existing Court strikingly illustrates this, when it enacts that all jurisdiction vested in or exercised by any Ecclesiastical Court or person in England, &c, shall belong to and be vested in Her Majesty. It was not previously vested in her, although she had appellate jurisdiction as supreme Ecclesiastical judge.