Nature of the of Arches. In like manner the right of jurisdiction in every diocese of the province, during the vacancies of the sees, though vested by patent in the same person, belongs not to him as dean of the arches, but as vicar general of the archbishop (g). And the same person is likewise judge of the peculiars, that is, of all those parishes, fifty-seven in number, which though lying in other dioceses, yet are no way subject to the bishop or archdeacon, but to the archbishop (h). This court of the arches is very ancient, and subsisted long before the time of King Henry II.; for Alexander III., then bishop of Rome, did by his edict to the dean of the arches and Robert Kilwardy, then archbishop of Canterbury, abrogate and abolish the then ancient statutes of this court, and set up others in their stead; and it was there said that those ancient statutes were then by length of time become not legible (i). This court (as also the court of peculiars, the admiralty court, the prerogative court, and the court of delegates for the most part) is now held in the hall belonging to the college of civilians, commonly called Doctors Commons (k). From this court the appeal is to the king in Chancery, by the 25 Hen. 8, c. 19; [now to the Judicial Committee of the Privy Council.-See Appeal. [In Butler v. Dolben, Sir G. Lee said, "I was of opinion of the Court the jurisdiction of the court of arches was now entirely settled by stat. 23 Hen. 8, c. 9; that the arches is by that statute empowered to take original cognizance, by virtue of letters of request, of such causes as the civil and canon law allowed the inferior judge to devolve to the superior, which are those called arduous causes, of which matrimonial were always esteemed the chief; that the statute vested the power of devolving in the judge, without mentioning consent either of the bishop or parties; that in fact the bishop's consent was never required, and that if the parties' consent had ever been deemed necessary, there hardly could be a cause commenced here by request, for the defendant almost constantly desires as many opportunities of appealing as possible, for delay. As to the discretion of the court, whether it shall accept or refuse letters of request when granted by a proper judge, the delegates held, in the case of Dr. Pelling v. Whiston, that the dean of the arches was bound to receive them ex debito justitia (1).” [It was said by the same learned judge, that the arches court had no jurisdiction to determine the allowance to be made for the maintenance and education of minors (m); and also that it had no authority to cite generally, except in the five cases spe (g) Gibs. 104. 140.] [2 Lee's Rep. 316; 2 Add. (m) [Fleet v. Holmes, 2 Lee's Rep. 140.] cified in the act of Hen. VIII. before cited (n). It is chiefly a court of appeal from the courts of the several bishops or ordinaries within the province of Canterbury; its appellate jurisdiction extends to all causes or suits relative to wills, intestacies, tithes, church rates, marriages, and the other matters cognizable in these courts. But the dean of the arches exercises original jurisdiction over thirteen parishes, peculiars of the archbishop, in the city of London, and the several parishes comprising the deanries of Shoreham in Kent, and Croydon in Surrey. The other peculiars of the province of Canterbury are subject to commissaries, and from them an appeal lies to the court of arches (o). [The office of dean of the arches and official principal to the court of arches, are usually, but not necessarily, held by the same person (p). tion in Per [The arches court has also original jurisdiction in suits for Is Jurisdic subtraction of legacy, where the will is proved in the preroga-sonal Lega tive court of Canterbury (q). [In Grignion v. Grignion, Sir J. Nicholl said, "The question then is, whether this court has any jurisdiction to entertain this suit: if it clearly has no jurisdiction, the court would not suffer the parties to proceed, and to incur unnecessary expense; it would stop without waiting for an injunction: but if the point be at all doubtful, the court would be bound to proceed; for to refuse the exercise of a jurisdiction which is competent to entertain the suit, and to which a party applies, is a 'sort of denial of justice.' "Is there then any sound principle or authority clearly showing that this court cannot and ought not to entertain the case? Causes of subtraction of legacy are undoubtedly of the cognizance of this court: the executor receives his authority from the ecclesiastical jurisdiction: a part of his functions. (which he is expressly sworn to perform) is to pay the legacies: if he omits to discharge this duty, the jurisdiction from which his authority emanates is naturally resorted to, in order to compel him to proceed. This court then enforces payment where the legacy is subtracted. It is true that courts of equity exercise a concurrent jurisdiction: the principle upon which that concurrency has been assumed is, that all executors are in the nature of trustees; the legal property of the effects is in the executor, and must be collected by him, though he holds these effects in trust for the legatees. Speaking with all possible respect of past times, there does seem a little of refinement and fiction even in the foundation of this concurrency of jurisdiction; but that is now a point perfectly settled. It is (n) [Hughes v. Herbert, 2 Lee's Rep. 289.] (0) [1 Phill. Rep. 201.] (p) [See 1 Hagg. 48.] (g) [See Report of Commissioners for inquiring into Ecclesiastical Courts, 1823.j cies. Mode of Proceeding to re Cover & Le Court of equally settled that if there is an unfinished trust, or if the interests of third parties are to be protected, courts of equity have not merely a concurrent, but an exclusive jurisdiction. On that ground, if in this case any proceedings had been attempted during the life-time of Israel Grignion, the legatee for life, or during the minority of his children, this court would have refused to entertain the suit; there being ulterior interests to protect, to which a court of equity, being the guardian of all trusts, could alone be competent. On the same principle, if a legacy is given to a married woman, this court is incompetent, because it cannot compel the husband to make a settlement; it can merely enforce payment. So also at one time courts of equity required legatees to give security to refund, and on that ground they granted injunctions, though that ground would go nearly to annihilate this jurisdiction altogether, and to assume an exclusive jurisdiction: but now courts of equity have themselves abandoned that rule of requiring legatees to give security to refund; and therefore allow these courts to compel payment (r)." The mode of proceeding for the recovery of a legacy ought properly to be referred to the head of Practice, but it is perhaps as convenient an arrangement to place it in connection with the preceding judgment. The process is very clearly described by Dr. Haggard (s) in the following terms: "The course of proceeding in the Arches Court is usually as follows: the executor being cited to answer the legatee in a suit of subtraction of legacy, a short libel is brought in, pleading that A. B. made a will, and he thereof appointed C. D. executor, and is since dead, leaving bona notabilia,' and without revoking or altering his will; that since his death C. D. has proved his will in the Prerogative Court of Canterbury; that by his will A. B. left a legacy to E. F. in the following terms [the clause of the will containing the legacy is here recited]; that this legacy remains unsatisfied, and that C. D. is possessed of and has admitted assets; has been applied to and refuses payment; and further pleads the identity of E. F. and the legatee, and that he is of age; and the libel concludes with a prayer that the executor may be compelled to pay the legacy, and be condemned in costs. ["The records of the Prerogative Court prove all the facts except the assets, the age and the identity of the legatee; and the executor is, upon the libel being admitted, assigned to give in his answers, deny assets, or the legatee's identity or age; witnesses may be examined. Sometimes, as the case is in the text (t), there may be some special circumstances stated in the libel, and the executor also may plead responsively. But in (r) [1 Hagg. Rep. 536.] ports, p. 161.] (t) [Capel v. Roberts and Neeld.] the great majority of cases the legacy is paid either as soon as the citation is taken out, or as soon as the libel is admitted. From the early stage in which these suits usually terminate, they pass in a great degree 'sub silentio,' and are thus generally supposed more rare than is really the case; of late they have, it is believed, become more frequent than they were a few years since. Sometimes, as a preliminary proceeding, an inventory and account is called for in the Prerogative Court." The official principals or chancellors of each diocese have the same jurisdiction in cases of wills proved in the diocesan courts. the Arches pronounce [The 122nd canon forbids any sentence of deprivation or The Dean of deposition to be pronounced against a minister by any other has Authority person than the bishop. It has been a much disputed ques- to prone of tion whether the dean of the arches is not exempt from this Deprivation. prohibition, and empowered to deprive or depose a delinquent clergyman. In Saunders v. Davies (u), Sir John Nicholl, then dean of the arches, refused to exercise this power, saying that he "would be extremely unwilling to do in the teeth of that canon what the canon itself seems in the court's view of it expressly framed to exclude it from doing, upon the mere dicta of counsel, however respectable, in the absence of any, or at most upon the strength of one (kind) precedent." [Since the expression of this doubt, the learned judge himself passed sentence of deprivation on the Rev. Dr. Free (x); and Dr. Haggard has printed in his Appendix two cases where the exercise of such authority had been previously sanctioned by the Delegates (y). See title Deprivation.-ED.] Archipresbyter. THE archipresbyter was so called because he was in some certain matters and causes set or appointed over the priests or presbyters, and such as were of the sacerdotal office; especially in the absence of the bishop (z). The archipresbyter is now called rural dean, and is appointed by the bishop and archdeacon to continue during pleasure (a). And by the canon law, he that is archipresbyter is also called dean (b). Arrest in the Church or Church Yard—see Church. (u) [1 Addams, 296.] (a) For his duty and oath, see tit. Deans and Chapters, VI.; also X. 1. 24; and Dist. 60. (b) God. Rep. Can. 56. [ 99 ] The Thirty nine Articles. Articles (a). 1. THE Thirty-nine Articles were mainly founded upon a body of articles compiled and published in the reign of King Edward VI. They were first passed in the convocation, and confirmed by the royal authority, in the year 1562. Then they were afterwards ratified anew in the year 1571, in the following form, which form is printed at the end of the said articles, and is that same ratification which is referred to by the 36th canon hereafter mentioned, viz. "This book of articles before rehearsed is again approved, and allowed to be holden and executed within the realm, by the assent and consent of our sovereign lady Elizabeth, by the grace of God, of England, France, and Ireland queen, defender of the faith, and so forth. Which articles were deliberately read, and confirmed again by the subscription of the hand of the archbishops and bishops of the upper house, and by the subscription of the whole clergy of the nether house in their convocation, in the year of our Lord 1571." Then they were again ratified by King James I. in these words, which are commonly prefixed to the said book of articles, viz. "Being by God's ordinance, according to our just title, defender of the faith, and supreme governor of the church, within these our dominions; we hold it most agreeable to this our kingly office and our own religious zeal, to conserve and [100] maintain the church committed to our charge in the unity of true religion and in the bond of peace, and not to suffer unnecessary disputations, altercations, or questions to be raised, which may nourish faction both in the church and commonwealth. We have therefore upon mature deliberation, and with the advice of so many of our bishops as might conveniently be called together, thought fit to make this declaration following: "That the articles of the Church of England (which have been allowed and authorized heretofore, and which our clergy generally have subscribed unto) do contain the true doctrine of the Church of England, agreeable to God's word; which we do therefore ratify and confirm, requiring all our loving subjects to continue in the uniform profession thereof, and prohibiting the least difference from the said articles, which to that end we command to be new printed, and this our declaration to be published therewith: "That we are supreme governor of the Church of England, and that if any difference arise about the external policy, concerning injunctions, canons, and other constitutions whatsoever thereto belonging, the clergy in their convocation is to order (c) [See Appendix.] |