The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• A Table of British Regnal Years
• Select Essays In Anglo - American Legal History: Volume Ii History of Particular Topics
• Part I.: Sources
• 22.: Heinrich Brunner, the Sources of English Law 1
• 23.: Frederick William Maitland, Materials For the History of English Law 1
• 24.: William Searle Holdsworth, the Year Books 1
• 25.: Van Vechten Veeder, the English Reports, 1537-1865 1
• Appendix A: Edward Jenks, List of Principal Sources of Mediaeval European Law 1
• Supplementary List of References 1
• Appendix B: Paul Samuel Reinsch, a Short Bibliography of American Colonial Law 1
• 26.: The Commissioners, an Historical Survey of Ancient English Statutes 1
• Part II.: The Courts, Their Organization and Jurisdiction
• 27.: Frederick Andrew Inderwick, the Common Law Courts As Established Under Edward I 1
• 28.: George Spence, the History of the Court of Chancery 1
• 29.: William Searle Holdsworth, the Ecclesiastical Courts and Their Jurisdiction 1
• 30.: Thomas Lambert Mears, the History of the Admiralty Jurisdiction 1
• Part III.: Procedure
• 31.: James Bradley Thayer, the Older Modes of Trial 1
• 32.: Sir Frederick Pollock, the King’s Peace In the Middle Ages 1
• 33.: Hubert Hall, the Methods of the Royal Courts of Justice In the Fifteenth Century 1
• 34.: Sir James Fitzjames Stephen, Criminal Procedure From the Thirteenth to the Eighteenth Century 1
• 35.: Edward Jenks, the Story of the Habeas Corpus 1
• 36.: Frederick William Maitland, the History of the Register of Original Writs 1
• 37.: Luke Owen Price, an Action At Law In the Reign of Edward III. 1
• 38.: William Searle Holdsworth, the Development of Written and Oral Pleading 1
• 39.: Charles Mcguffey Hepburn, the Historical Development of Code Pleading In America and England 1
• 40.: John Henry Wigmore, a General Survey of the History of the Rules of Evidence 1
• Part IV.: Equity
• 41.: Oliver Wendell Homes, Early English Equity 1
• 42.: Luke Owen Price, Common Law and Conscience In the Ancient Court of Chancery 1
• 43.: James Barr Ames, the Origin of Uses and Trusts 1
• 44.: Christopher Columbus Langdell, the Development of Equity Pleading From Canon Law Procedure 1
• 45.: Solon Dyke Wilson, Courts of Chancery In the American Colonies 1
• 46.: Sidney George Fisher, the Administration of Equity Through Common Law Forms In Pennsylvania. 1

29.

THE ECCLESIASTICAL COURTS AND THEIR JURISDICTION1

By William Searle Holdsworth2

THE Ecclesiastical Courts have a longer history than the Courts of Common Law and Equity. At all periods in their long history prevailing theories as to the relations between Church and State have influenced both the law which they administer, and their position with regard to the English judicial system. If therefore we are to understand the arrangement of the Ecclesiastical Courts at different periods, and the sphere of jurisdiction assigned to them, it will be necessary to say something by way of introduction upon these matters. We can then proceed to treat of the courts themselves and their jurisdiction.

(i) The law administered by the Ecclesiastical Courts, and their relation to the English judicial system.

This subject falls naturally and chronologically into two divisions (a) the Pre-reformation, and (b) the Post-reformation period.

(a) The Pre-reformation period.

Throughout this period political and religious ideas were dominated by the theory of the survival of the Holy Roman Empire. It may be that in the common affairs of life, in the smaller associations in which men were grouped in a feudal state, this theory played little direct part. But in the law of the church, as administered in the Ecclesiastical Courts throughout Latin Christendom, it was all important. The Roman Empire had not perished. The Roman Emperor, represented by the emperor of Germany, still ruled the world in matters temporal; the Pope in matters spiritual. “The Pope, as God’s vicar in matters spiritual, is to lead men to eternal life; the Emperor, as vicar in matters temporal, must so control them in their dealings with one another that they may be able to pursue undisturbed the spiritual life, and thereby attain the same supreme and common end of everlasting happiness. In the view of this object his chief duty is to maintain peace in the world, while towards the Church his position is that of Advocate, a title borrowed from the practice adopted by churches and monasteries of choosing some powerful baron to protect their lands and lead their tenants in war. The functions of Advocacy are twofold: at home to make the Christian people obedient to the priesthood, and to execute their decrees upon heretics and sinners; abroad to propagate the faith among the heathen, not sparing to use carnal weapons. Thus the Emperor answers in every point to his anti-type the pope, his power being yet of a lower rank, created on the analogy of the papal, as the papal itself had been modelled after the elder Empire.”1 To Pope and Emperor the other rulers of the earth were subordinate.

On its temporal side this theory tended to become more and more untrue with the growth, during the Middle Ages, of the territorial state. But the influence of the old theory can be seen in the preamble of Henry VIII.’s statute which asserts that “by dyvers sundrie olde autentike histories and cronicles it is manifestly declared and expressed that this realme of England is an impire, and so hath ben accepted in the worlde, governed by oon supreme heede and King, having the dignitie and roiall estate of the imperiall crowne of the same.”2

The changing condition of Europe did not so obviously affect the dominion claimed by the Pope in matters spiritual. The claim of the Pope to be the head of a universal church was, in the Middle Ages, far less a mere theory than the parallel claim of the Emperor to be the head of a universal state. The Pope wielded a real authority over the faithful; and, of the fate of those who sought to cut themselves off from the communion of the faithful, the Albigenses and Southern France could tell. At the beginning of the 14th century Boniface VIII. could claim that the Pope held the chief place, that the Emperor was but his feudatory.1

The dominion of the papacy had been consolidated during the 11th and 12th centuries by a series of able popes—preeminent among whom were Gregory VII. (1073-1080) and Innocent III. (1198-1216). It was maintained by the rules of the Canon Law which was accepted as the “jus commune” of the church throughout Europe. It was from the 11th to the 13th centuries—during the most splendid period of the papacy—that the greater part of the Corpus Juris Canonici was compiled.

Roman civil law had never wholly perished. But the revival of interest in its study begins in the early years of the 12th century, when Inerius began to lecture upon the Digest at Bologna. “Roman law was living law. Its claim to live and to rule was intimately connected with the continuity of the empire.”2 A famous school of law was founded. The systematic study of the civil law produced a desire to reduce to a similar system the scattered rules of the canon law. Gratian, a monk of Bologna (1139-1142), gathered them up into a systematic treatise.3 The nature of his work is well illustrated by the name applied to it when it first appeared. It was called the “Concordia Discordantium Canonum.” Later it was known as the Decretum Gratiani. Henceforth the Canon Law stood side by side with the Civil Law. The University of Bologna possessed two faculties of law—the civil and the canon. The students were decretistæ or legistæ.4 There were doctores decretorum, doctores legum, or doctores utriusque juris.

The Corpus Juris Canonici is made up of the following parts:—(1) The Decretum Gratiani. This comprehended all the papal legislation down to the year 1139. The activity of papal legislation1 soon rendered a fresh compilation necessary. Several private collections were made. The collection made by Bishop Bernard of Pavia in five books is noteworthy as having supplied the method of arrangement of later portions of the Corpus Juris.2 (2) The Decretals of Gregory IX. (1234). This was composed of the decisions of the pope upon matters referred to him from all parts of Europe. (3) The Liber Sextus of Boniface VIII. (1298). As its name would imply it is intended as a supplement to Gregory’s five books. It contains not decisions, but abstract rules of law, which are no doubt extracted from the decisions. (4) The Clementinæ (1313). (5) The Extravagantes, i. e. the more important of later decretals. These were never formally promulgated as a code like the preceding four branches of the law.3 Professors of the canon law added many explanatory notes (glosses) to the text. Generally one gloss was accepted as the most important and was called the Glossa Ordinaria.4

The canon law was received in England, as in other parts of Europe, as the jus commune of the church. The English provincial constitutions formed but a small part of the law of the church. “They contain little that is new, and are only a brief appendix to the common law of the universal church.”5 William Lyndwood—the official principal of the Archbishop of Canterbury—wrote a commentary upon them in 1430, which has always been reckoned a leading authority in ecclesiastical law.1 He clearly regards them as a supplement merely to the jus commune of the church. The decretals of the pope are the edicts of a sovereign legislator whose authority it is heresy to question. Provincial constitutions are valid only in so far as they interpret or enforce these papal decrees.2 The test exacted of persons suspected of Lollardry was subscription to the Decretum, the Decretals, the Sext, and the Clementines.3

The canon law recognised the pope not only as the supreme legislator, but also as supreme judge of the Church, possessed not merely of appellate, but also of original jurisdiction. He could be called in by a litigant at any stage in the suit; and not merely the judgments he pronounced, but also any dicta he might be inclined to express, had the force of law.4 He could delegate his powers to legates a latere, who, by virtue of their commission, superseded all the ordinary courts. “The metropolitan must plead as plaintiff before the suffragan, the superior before the inferior, if the princeps will have it so.”5 In fact the Pope could, and did to a large extent, make himself the “Universal Ordinary.” He has, says Bracton,6 ordinary jurisdiction over all in things spiritual, as the king has ordinary jurisdiction over all in his realm in things temporal. It is clear from books of practice on the canon law that whenever any considerable sum was at stake in an action the usual course was to “impetrate” an original writ from Rome nominating papal delegates to hear the case.7 In the 13th century the number of English cases which came before the pope was larger than that from any other country in Europe.8 The methods by which, as we shall see, the Archbishop of Canterbury has attracted much of the business of the ordinary courts to his provincial courts, have been suggested by the practice of the Roman Curia.1

Such, then, was the system of the canon law, in force in England as in all the other countries of Western Europe. But the church and its law must necessarily exercise its activity within a state; and, whatever extreme churchmen might contend for, it was impossible that all ecclesiastical persons should live exempt from all temporal jurisdiction. Moreover, the canon law attempted to exercise a wide control over the laymen pro salute animæ. As the state grew into conscious life it was inevitable that occasions for disputes between the temporal and spiritual powers should arise. Two systems of courts exercising two systems of law cannot coexist in one state without disputes as to the limits of their respective authority. Within a certain sphere each was supreme. But there was always a debatable land over which neither party was completely sovereign.

The precocious growth of the state in England brought this necessary antagonism between the claims of Church and State into prominence at a comparatively early period. The controversy about investitures was settled in England in 1106. It was not till 1122 that a smilar controversy in Germany was ended by a similar compromise. In the royal writ of prohibition the royal courts had a weapon of precision which in the end secured for them the jurisdiction which they claimed. All questions touching lay fee, all questions concerning advowsons, all criminal cases, save cases of felony where a clerk was the culprit, all cases of contract and tort, were gradually drawn into the royal courts. They were drawn into the royal courts in spite of the protests of churchmen. Though churchmen sitting as royal justices helped to secure the victory of the common law, it is clear that the canon law and the churchmen qua churchmen must have regarded them as encroachments.2 Similarly, statutes, like the statutes of Provisors and the two statutes of Præmunire, attempted to check, in the interests of patrons and of the state, the abuses of papal patronage. The aim of the statute of Provisors1 was to protect spiritual patrons against the pope. If the pope attempted to appoint, the right of presentation lapsed to the crown. The bishops took no public part in the enactment of this statute. The first statute of Præmunire2 punished those who drew “any out of the Realm in Plea whereof the cognisance pertaineth to the king’s court, or of things whereof judgments be given in the king’s court, or which do sue in any other court to defeat or impeach the judgment given in the king’s court.” The statute plainly says nothing of cases over which the king’s court never claimed jurisdiction. The second statute of Præmunire3 was aimed at those who “purchased or pursued, in the Court of Rome or elsewhere,” any “Translations, processes, and sentences of Excommunications, Bulls, Instruments, or any other things whatsoever which touch the king, against him, his crown, and his regality,”4 whereby the king’s court was hindered in its jurisdiction over pleas of presentment. The guarded answer returned by the bishops, in reply to the question addressed to them as to the papal power in this respect, shows an obvious desire to conciliate the Parliament without committing themselves to any statement contrary to canon law.5 It is clear that such legislation is as “antiecclesiastical” as the issue of writs of prohibition. To argue from such legislation, or from the issue of such writs, that the Ecclesiastical Courts imagined that they were independent of the Pope or the canon law, would be about as reasonable, as to argue from the Grand Assize, and the possessory assizes that the feudal courts admitted the royal claim to jurisdiction over all cases of ownership or possession of freehold.

The state successfully asserted its rights to the jurisdiction which it claimed. But we can see from the benefit of clergy,1 and from the statute of Circumspecte Agatis,2 and the Articuli Cleri3 that it was willing to allow a large sphere to the Ecclesiastical Courts and the canon law. In one respect, indeed, it allowed to the rival jurisdiction a larger authority than it possessed in any other country in Europe. It abandoned to it absolute jurisdiction over testamentary and intestate succession to personal property.4 Where the jurisdiction of the Ecclesiastical Courts was admitted, the state automatically enforced their sentences of excommunication by the imprisonment of the excommunicate.5

Thus matters stood before the Reformation. The jus commune of the Western Church was administered in the Ecclesiastical Courts. The common law was administered in the royal courts. The royal courts claimed exclusive jurisdiction in certain matters. Other matters they were content to leave to the Ecclesiastical Courts. Certain rights allowed to the pope by the canon law had been curtailed by English statutes, which the royal courts would enforce if called upon to do so. Within their respective limits the canon law enforced by the Ecclesiastical Courts, and the common law enforced by the royal courts were separate systems of law, differing in many of their rules, deriving their binding force from different sovereigns.

The claims made by these rival systems produced much friction. But the prevailing theories as to the relations between church and state made it impossible for either of these rival powers to do without the other. Papal dispensations from the rules of the canon law acknowledged the power of the pope; but they enabled the crown to use the revenues of ecclesiastical benefices for the maintenance of his civil service. Diplomatic reasons demanded some kind of arrangement; and at the latter end of the Middle Ages an arrangement was arrived at on a profit-sharing basis. Such an arrangement produced peace; but it was a peace which made reform impossible. Abuses were allowed to spring up unchecked until an entirely new theory as to the relations between Church and State materially altered both the law administered in the Ecclesiastical Courts, and their relation to the English judicial system.

(b) The Post-Reformation period.

At the beginning of the 16th century many circumstances combined to show that the old theories as to the relations between Church and State were breaking down. All over Europe centralized territorial states were taking the place of the loosely knit feudal monarchies of the Middle Ages. The wealth and corruption of the church, and more particularly the abuses of the Ecclesiastical Courts, were exciting extreme unpopularity. The doctrines of the church, also, were beginning to be assailed with the more effective weapons which the New Learning had provided. The better class of ecclesiastical statesmen saw clearly that some reform was necessary.

England, like the rest of Europe, felt these influences. Cases like that of Hun1 bore witness to the unpopularity of ecclesiastics, their courts, and officials. We can see from the case of Standish2 that Henry VIII., backed by popular opinion, was minded to assert a larger control over ecclesiastics. Wolsey, who was perhaps the most far-seeing statesman of the day, was already taking measures to reform the corruption of the church. But neither Henry nor England had any desire to separate from the general system of the Western church. There were but few adherents to Protestant doctrine. If the pope would consent to Henry’s demands for an increased control over the clergy; if the church had been reformed as Wolsey desired, there appeared to be no necessity for a break with Rome. The Anglican church might have had a history very similar to that of the Gallican church.1

The divorce question made this solution impossible. The pope coerced by Charles V. could not grant the divorce. A break with Rome was therefore necessary. Although the break was accomplished with as little external change as possible, it necessarily involved an altogether new view as to the relations between Church and State.

The tentative way in which the separation was carried out shows how unwilling Henry was to break with the past. The attitude of the pope, however, rendered separation inevitable. In the preambles to Henry’s statutes we may see the gradual elaboration of the main characteristic of the changed relations of Church and State—the theory of the Royal Supremacy. The dual control over things temporal and things spiritual is to end. The Crown is to be supreme over all persons and causes. The Canon Law of the Western Church is to give place to the “King’s Ecclesiastical Law of the Church of England.”2

The Reformation Parliament met in 1529 after the fall of Wolsey. The first acts of that Parliament, carried in spite of the opposition of the clergy, were directed against certain abuses in the church and its courts.3 The clergy also (1531) recognised the royal Supremacy “so far as the law of Christ allows.”4 In 1532 it was so clear, from the unsatisfactory progress of the divorce, that there would be legislation aimed more directly at Rome, that Warham, the archbishop of Canterbury, drew up a formal protest against all statutes to be passed in the ensuing session, which should prejudice the ecclesiastical or papal power.5 An act was passed against the payment of Annates. But the act is still respectful to “our Holy Father the Pope”; who was still allowed to charge certain fees for the consecration of bishops; and the king was given a discretion as to its enforcement.1 In 1533 the Statute of Appeals was the necessary consequence of the king’s marriage and of the divorce proceedings taken before Cranmer.2 In the preamble to that statute the new relations between Church and State were sketched by the king himself. We have in it the first clear statement of the new Anglican position. “By divers sundry old authentic histories and chronicles it is manifestly declared . . . that this realm of England is an empire . . . governed by one supreme head and king . . . unto whom a body politic, compact of all sorts and degrees of people, divided in terms and by names of spirituality and temporality be bounden and owe to bear next to God a natural and humble obedience; he being also institute . . . with plenary whole and entire power, pre-eminence, authority, prerogative and jurisdiction to render and yield justice and final determination to all manner of folk, residents, or subjects within this his realm in all causes . . . happening to occur . . . within the limits thereof without restraint or provocation to any foreign princes or potentates of the world. The body spiritual whereof having power when any cause of the law divine happened to come in question or of spiritual learning, it was declared . . . by that part of the said body politic called the spirituality (now being usually called the English Church) which . . . is sufficient and meet of itself, without the intermeddling of any exterior person . . . to declare and determine all such doubts and to administer all such offices and duties as to their rooms spiritual doth appertain . . . : and the laws temporal for trial of property of lands and goods for the conservation of the people of this realm in unity and peace . . . was and yet is administered . . . by sundry judges and administers of the other part of the said body politic called the temporality, and both their authorities and jurisdictions do conjoin together in the due administration of justice the one to help the other: and . . . the king his most noble progenitors and the nobility and commons of this said realm at divers and sundry Parliaments as well in the time of king Edward I., Edward III., Richard II., Henry IV., and other noble kings of this realm made sundry . . . laws . . . for the entire and sure conservation of the prerogatives, liberties, and pre-eminences of the said imperial crown of this realm, and of the jurisdictions Spiritual and Temporal of the same, to keep it from the annoyance as well of the see of Rome as from the authority of other foreign potentates.”1 The king is supreme in his realm. His courts, spiritual and temporal, can decide for themselves all cases which occur within the realm. This has always been the law. The anti-ecclesiastical statutes of the Middle Ages are vouched to support the historical theory put forward by the state. When the state’s theory has been accepted by the church, it will be an appropriate statutory foundation for the modern ecclesiastical claims of the church, now part of the state, and subject to the royal supremacy.

Later statutes of Henry’s reign further amplified and defined the supremacy which he claimed. The Act of Supremacy recognised the king as “the only Supreme Head in earth of the Church of England,”2 having full power to correct all “errors, heresies, abuses, offences, contempts, and enormities” which by any manner of spiritual authority ought to be reformed; and the oath taken in accordance with this act denies to the pope any other authority than that of bishop of Rome.3 It was in accordance with this act that Henry gave an extensive commission to Cromwell to act as his Vicar-General. It is clear that Henry is beginning to regard himself as possessing all that “usurped” authority which once belonged to the pope. This is shown by the act of 15454 which declares that the king has power to exercise all ecclesiastical jurisdiction, “and that the archbishops, bishops, archdeacons, etc., have no manner of jurisdiction ecclesiastical but by, under, and from the king.” In accordance with this theory the bishops and archbishops took out commissions to exercise their ordinary powers and authorities.1

Most of the other acts of Henry’s reign are the logical consequence of these changed relations between church and state. Annates and all other payments to Rome were definitely cut off.2 In the act for the submission of the clergy3 it was provided that no new canons should be enacted, except in convocations summoned by the king’s writ, with license to assemble and make canons. The existing canons were to be revised by a committee of 32, of whom 16 were chosen from layment and 16 from ecclesiastics. Further provision for this revision of the canon law was made by other statutes of this reign; and it was enacted that, in the meantime, those which did not conflict with God’s law and the king’s should be still in force.4 No such revision was in fact made in Henry VIII.’s reign. But the teaching of the canon law was in every way discouraged at the universities. In place of lectures on canon law lectures on civil law were established. Degrees soon cease to be taken in canon law as a separate faculty.5 The act of 1545 allowed the doctors of the civil law, though laymen and married, to exercise ecclesiastical jurisdiction. This discouragement of the canon law was a necessary consequence of Henry’s settlement. It is clear that the canon law as taught in the Middle Ages would have been in entire conflict with the new order.

Thus it may be said that the great work of Henry’s reign was to effect an entire change in the relations between church and state. The church ceased to form part of the Western church in communion with Rome. The law of the church ceased to be the canon law of Rome. But beyond that there was little change. The Act of the Six Articles reaffirmed most of the leading doctrines of the Roman Catholic Church.1 The existing organization of the Ecclesiastical Courts was maintained. The king had put himself in place of the pope. The king’s ecclesiastical law administered by civilians was put in place of the canon law of Rome. “The Reformation,” says Archdeacon Hale,2 “if under that general term we may include the whole series of events by which this country was freed from the authority of the Bishop of Rome, was in its commencement nothing more than a legal and political Reformation; a renunciation of the intrusive power of the Pope over the King’s subjects, and an assertion of the competency of the Anglican Church to decide by her own tribunals all questions relative to Divine Law and to spiritual learning. A Reformation in religion soon followed; but it was a providential and not a necessary consequence.”

Little need be said of the reigns of Edward VI. and Mary.3 They are episodes which added little of permanent importance to Henry’s settlement. Edward VI. applied the doctrine of the royal supremacy in its extreme form. Henry had left the authority of the bishops unimpaired. Edward in many cases excluded their authority. He directly appointed them. Process in the Ecclesiastical Courts ran in his name. Only those who had special authority from him could exercise jurisdiction. Frequent commissions issued by him, in virtue of his supremacy, in many cases superseded the authority of the ordinary courts. As we might expect, their jurisdiction fell into contempt.4 The reform in doctrine and the reform of the canon law was hastily pressed forward. Mary on the other hand went to the opposite extreme. The old state of things as it existed in 1529 was as far as possible restored.

Elizabeth’s reign is marked by a recurrence to Henry VIII.’s principles, both as regards the relation between church and state, and as regards the position and jurisdiction of the Ecclesiastical Courts. “The policy of Elizabeth and her ecclesiastical settlement is historically linked on directly to that of her father.”1 The church was given a more definitely Protestant character, but with as little change of the older order as was possible. In the Acts of Supremacy and Uniformity the relations between church and state are permanently and definitely ascertained.

The Act of Supremacy2 annexed to the “imperial crown of this realm” all “such jurisdictions, privileges, superiorities and pre-eminences spiritual and ecclesiastical, as by any spiritual or ecclesiastical power or authority hath heretofore been or may lawfully be exercised or used for the visitation of the ecclesiastical state, and persons, and for reformation, order and correction of the same and of all manner of errors, heresies and schisms abuses offences contempts and enormities.” The supremacy was of wide and somewhat indefinite extent. But it did not go the whole length of Henry VIII.’s later statutes or of Edward VI.’s statutes.3 The crown made no claim to “the ministering either of God’s Word or of the Sacraments.”4 The older organization of the Ecclesiastical Courts was maintained. The crown simply claimed to be supreme over all causes and persons to the exclusion of any foreign power.

With a view to the better maintenance of the Supremacy, and the ecclesiastical settlement therein involved, the crown was empowered to entrust its exercise to commissioners appointed under the Great Seal.5 In thus exercising the royal jurisdiction by commission precedents of Edward VI. and Mary’s reign were followed.6 The power was exercised when the Court of High Commission was created in 1559.

Some attempts were made to pursue the plan of revising the canon law. But though the revision had been completed by Cranmer and Peter Martyr, it never obtained legislative sanction.7 The canon law, so far as it was in harmony with the new settlement, still continued to be administered by the civilians, who combined their practice in the Ecclesiastical Courts with their practice in the court of Admiralty.1 As the exercise of the jurisdiction of the court of Admiralty was controlled by the writ of prohibition, so (in spite of all protests)2 was the exercise of the jurisdiction of the Ecclesiastical Courts.

Administered in this way, the law of the church, like the maritime law, has ceased to possess an international character.3 It has become national like the church itself. “The ecclesiastical law of England,” said Lord Blackburn,4 “is not a foreign law. It is a part of the general law of England—of the common law—in that wider sense which embraces all the ancient and approved customs of England which form law, including not only that law administered in the courts of Queen’s Bench, Common Pleas, and Exchequer, to which the term common law is in a narrower sense confined, but also that law administered in Chancery and commonly called Equity, and also that law administered in the courts Ecclesiastical, that last law consisting of such canons and constitutions ecclesiastical as have been allowed by general consent and custom within the realm, and form . . . the king’s ecclesiastical law.”

But though Henry’s settlement as to the royal supremacy, as to the courts, and as to the ecclesiastical law was followed in its main lines, the doctrines of the church were given a more definitely Protestant character. The matters which the Court of High Commission could declare to be heresy were defined.1 Statutory force was given by the Act of Uniformity, to the second book of common prayer of Edward VI.’s reign, with certain alterations and additions.2 Not only the Ecclesiastical Courts, but also the justices of oyer and terminer and of assize, were empowered to see to the observance of the Act.3

This settlement has been fully accepted both by the judges and the bishops. In Caudrey’s Case4 “It was resolved that the said Act (the Act of Supremacy) . . . concerning ecclesiastical jurisdiction was not a statute introductory of a new law, but declaratory of the old.”5 The relations between church and state were explained almost in the words of the preamble of Henry VIII.’s statute of Appeals; and the historical argument, as to the continuous independence of the church, hinted at in that preamble, was expanded and improved. Though the Canon law had been laid under contribution it never was the law of the Church of England. “As the Romans fetching divers laws from Athens, yet being approved and allowed by the state there, called them notwithstanding jus civile Romanorum: and as the Normans borrowing all or most of their laws from England, yet baptized them by the name of the laws and customs of Normandy: so, albeit the kings of England derived their ecclesiastical laws from others, yet so many as were proved, approved, and allowed here by and with a general consent, are aptly and rightly called the King’s Ecclesiastical Laws of England.”1 In 1851 the two archbishops and the twenty bishops of England declared the “undoubted identity of the church before and after the Reformation”; and that though severed from Rome the church had in no respect severed her connexion “with the ancient Catholic Church.”2

Neither the legal nor the doctrinal theory should blind us to the fact that a very real change had been made at the Reformation. The relations between church and state, and the position of the Ecclesiastical Courts were fundamentally altered. The church was brought within the state. It was subjected to the power of the crown. That has involved in the course of time other consequential changes. Having been brought within the state, its position has been modified with changed ideas as to the balance of powers within the state, and as to the limits of state control. The court of High Commission wielded the royal supremacy, when the royal supremacy over the church conferred powers as large and indefinite as the royal prerogative in the state. That court disappeared, with the court of Star Chamber, when so large a prerogative was found incompatible with liberty.3 Similarly the royal supremacy conferred a wide dispensing power. That too was limited at the Revolution when it was found to put too large a discretionary power in the hands of the crown.1 In later times the proper sphere of ecclesiastical jurisdiction has been curtailed. Membership of the church is not considered a necessary qualification for full rights in the state. The members of other religious communities have been admitted to share them. The jurisdiction of the Ecclesiastical Courts has necessarily been weakened by the disappearance of the idea that it is the duty of the state church to use coercive measures to secure, pro salute animæ, the morality of all the members of the state. On the other hand later statutes have provided new courts or new machinery for the more effective discipline of the clergy in communion with the church.2

In this manner the Tudor settlement, without sacrificing what was valuable in the institutions and the doctrines of the past, has founded a church well fitted to be an English State Church, because, like the constitution of the English State, it is capable of adaptation to altered circumstances without a palpable breach of continuity. In no respect did the Tudors more clearly show their capacity to understand and to represent their people. In the age of Elizabeth, when religious feeling ran high, it often appeared to the more enthusiastic that her establishment was neither Protestant nor Catholic. But however illogical it appeared to the fanatic, it appealed to the more moderate. Being successful it did not long want defenders; and it has secured defenders so skilful that they have made love for the Church an essential factor in English political life.

The lawyer has deduced from the uncertain utterances of Anglo-Saxon history, and from the anti-ecclesiastical legislation of the Middle Ages, the existence, from the earliest times, of an independent national church. The theologian has conferred upon it an unique Catholicity. The benches of judges and bishops have enunciated the same doctrines in language only technically different. In fact the Reformation did in a similar manner for the church, what the Revolution did for the state. Macaulay says of the Revolution, “the change seems small. Not a single flower of the crown was touched. Not a single new right was given to the people. The whole English law, substantive and adjective, was in the judgment of all the greatest lawyers, of Holt and Treby, of Maynard and Somers, almost exactly the same after the Revolution as before it. Some controverted points had been decided according to the sense of the best jurists; and there had been a slight deviation from the ordinary course of succession. This was all; and this was enough.” The same sentiments, applied to the church, are both good law and sound doctrine. But if we look a little beyond the immediate consequences of either the Reformation or the Revolution we can see that the changes involved are very far reaching. The result of the Revolution was the transference of control over the executive from the prerogative to Parliament through the growth of the cabinet system. The result of the Reformation was the abolition of the dual control of church and state, the transference to the state of complete control over the church, and the substitution for the canon law of the King’s Ecclesiastical Law. The crown’s prerogative still retains traces of its origin in a feudal society; and it could be described by Blackstone in terms which might have commanded the approval of a Stuart king, or the censure of a Stuart Parliament. The Church still retains her courts with some remnants of their ancient jurisdiction, and in her formularies some traces of a Catholicism older than that of Rome.

(ii) The Ecclesiastical Courts.

The courts which have administered the ecclesiastical law at different periods may be divided into the following groups:—

(1) The ordinary courts of the Diocese, the Peculiar and the Province.

(2) The High Court of Delegates.

(3) The Court of High Commission.

(4) The Statutory courts of the 19th century.

(1) The ordinary courts of the Diocese, the Peculiar, and the Province.

(a) The Diocese.

The Bishop of each diocese held a Consistory Court for the diocese. From about the middle of the 12th century the Chancellor or “Official” of the bishop usually presided over this court. He was the ordinary judge competent, like the judge of the court of Admiralty, to exercise all the jurisdiction inherent in his principal, except in such cases as the bishop might expressly reserve for his own hearing. In time he comes to be the permanent judge of the court, and retains office after the death, removal, or beyond the pleasure of the bishop by whom he was appointed.1 But the bishop has never lost the right of withdrawing cases from his cognisance, if he wishes to hear them himself.2 Similarly, the bishop sometimes delegated jurisdiction over certain parts of his diocese to his “commissary.”3 There was an appeal from the Consistory Court to the Provincial Court of the archbishop.

Each archdeacon in the diocese held a court for his archdeaconry.4 The ordinance of William I., removing ecclesiastical pleas from the hundred court, mentions both the archdeacon and the bishop as persons who held pleas in the hundred court.5 In its origin the office of archdeacon was ministerial. He held a court as a deputy of the bishop, just as the steward held the manorial court as a deputy of his lord. “But the tendency of all such institutions is to create new jurisdictions, and, early in the 12th century, the English archdeacons possessed themselves of a customary jurisdiction.”6 It was possibly with a view to stop the encroachments of the archdeacon that the bishops adopted the plan of exercising their jurisdiction through officials. An appeal lay from the archdeacon’s court to the Consistory Court.1

(b) The Peculiar.

The tendency in all feudal states was to vest jurisdiction in any considerable landowner. This tendency was felt in the church as well as in the state. Just as in the state the jurisdiction of the ordinary communal courts was displaced by the franchise jurisdiction, so in the church the jurisdiction of the ordinary Diocesan courts was displaced by the jurisdiction of the Peculiar Courts. One cause for the growth of these Peculiar Courts was the conflict between the bishops and their chapters, which resulted in the apportionment of the land, and jurisdiction over the land, between the bishop and the chapter. Thus both the bishops and the deans of the chapters possessed Peculiar Courts. A second cause was the exemption of the greater abbeys from episcopal jurisdiction. A third cause was a similar exemption of the king’s chapels royal.2 The variety of these Peculiar Courts can be seen from the statement of the ecclesiastical commissioners of 1832,3 that “there are Peculiars of various descriptions in most Dioceses, and in some they are very numerous: Royal, Archiepiscopal, Episcopal, Decanal, Subdecanal, Prebendal, Rectorial, and Vicarial; and there are also some Manorial Courts.” Some of these Peculiars were wholly exempt from Episcopal, and even from Archiepiscopal control. But there was an appeal from them in earlier days to the Pope; in later days to the High Court of Delegates. Recent legislation has abolished most of these courts.1

(c) The Province.

The archbishops of Canterbury and York possessed various Provincial Courts.2 The Provincial Courts of the Archbishop of Canterbury were the following:—

(α) The court of the “Official Principal” of the archbishop (usually known as the Court of the Arches3 ) was at once the court of appeal from all the Diocesan Courts, and also a court of first instance in all ecclesiastical causes. The latter jurisdiction it attained by a series of encroachments (not without protest on the part of the bishops) analogous to the encroachments of the papal jurisdiction.4 This jurisdiction was restrained by the Statute of Citations,5 which put an end to the practice of citing persons outside their dioceses, except on appeals, on request of the bishop, or in case of the bishop’s negligence to hear the case. “As official principal the judge was held to possess all the judicial power of the archbishop . . . he issued process in his own name, and seems in all respects to represent the archbishop in his judicial character as completely as the chief justice represented the king.”6 Whether or no this deprived the archbishop of the right to sit and act personally in his court is not quite clear.7

(β) The Court of Audience. Just as the bishop did not deprive himself of all jurisdiction by delegation to an official or commissary, so the archbishop did not originally deprive himself of all jurisdiction by delegation to the official principal. He possessed a jurisdiction concurrent with that of the Court of the Arches, which was exercised in the Court of Audience. In later times this jurisdiction was exercised by the judge of the Court of Audience.1 At one time the archbishop may have exercised a considerable part of his jurisdiction in this court. It is mentioned in a 17th century account of the Ecclesiastical Courts; but it does not appear to have been revived as a separate court after the Restoration.2 It has now fallen into disuse. It must not be confused with the personal jurisdiction which the archbishop has over his suffragan bishops.3

(γ) The Prerogative Court.4 This court was sometimes presided over by the official principal, sometimes by a special commissary. It took cognisance of the testamentary jurisdiction belonging to the archbishop. It originally sat in the archbishop’s palace. It was moved, about the time of the Reformation, to Doctors’ Commons. The archbishops attracted to this court most of the testamentary business of the country. Whenever a man left bona notabilia in more than one diocese they claimed to oust the jurisdiction of the bishop.5 In spite of much opposition they made good their claims, which were recognised by the canons of 1604.6

(δ) The Court of Peculiars.7 This Court was held by the Dean of the Arches at Bow church for the thirteen London parishes, which were exempt from the diocesan jurisdiction of the bishop of London.

(ε) The Court of the Vicar-General in which the bishops of the province are confirmed.8

The provincial courts of the archbishop of York were the Chancery Court, the Prerogative Court, and the Court of Audience. These courts corresponded to the Court of the Arches, the Prerogative Court, and the Court of Audience of the archbishop of Canterbury.1

The Public Worship Regulation Act2 provides for the appointment by the archbishops of Canterbury and York of a single judge for their provincial courts. Such person is to hold the posts of the official principal of the Arches Court and the Chancery Court, and Master of the Faculties3 to the archbishop of Canterbury. The person appointed must be either a practising barrister of ten years’ standing, or a judge of one of the Superior Courts. He must also be a member of the Church of England. He holds office during good behaviour.

There is a question whether at any time Convocation ever acted as a court.4 There is some evidence to show that in the 14th and 15th centuries persons accused of heresy were brought before Convocation by the bishop who had cognisance over the case. But the members of Convocation did not vote on such trials. It was probably rather in the nature of a body of assessors to the archbishop than a court possessing jurisdiction. Coke, it is true, treats it as having once possessed jurisdiction in cases of heresy;5 and a majority of the judges in Whiston’s case6 seemed to think that it might still possess such jurisdiction. The statute 24 Henry VIII. c. 12 made the upper house a final court of appeal in ecclesiastical causes which concerned the king. Possibly the idea was to follow up the analogy between the temporal and spiritual jurisdictions, suggested in the preamble to the statute, by giving to it the position of the House of Lords. But this jurisdiction was, as we shall see, taken away by 25 Henry VIII. c. 19. It is clear that Convocation exercises no jurisdiction at the present day.

(2) The High Court of Delegates.

In the pre-Reformation period there was practically an unlimited right of appeal to the pope in all cases which fell within the jurisdiction of the Ecclesiastical Courts. This right was fettered to a slight degree by the rules made by the pope himself,1 and by the statutes of præmunire, in those cases in which the civil tribunals claimed exclusive jurisdiction. But where it existed the system of appeals and rehearings was, or might be, never ending. “Not only might a matter in dispute be treated over and over again, delegacy superseding delegacy, and appeal being interposed on every detail of proceeding one after another, but even after a definitive decision a question might be reopened and the most solemn decision be reversed on fresh examination. On this system of rehearing there was practically no limit, for, however solemn the sanction by which one pope bound himself and his successors, it was always possible for a new pope to permit the introduction of new evidence or a plea of exceptions. In this way the Roman Court remained a resource for ever open to litigants who were able to pay for its services, and the apostolic see avoided the imputation of claiming finality and infallibility for decisions which were not indisputable.”2

The Statute for the restraint of appeals3 prohibited all appeals to Rome, and provided that certain4 appeals should go from the archdeacon to the bishop, and (within 15 days) from the bishop to the courts of Arches or Audience, and from those courts to the archbishop himself. His decision was final except in cases touching the king. In that case there was an appeal from any of the Ecclesiastical Courts to the upper house of Convocation. This act was superseded by one passed in the following year which provided a new court of appeal for all ecclesiastical causes.5 The court created by this act becomes known as the High Court of Delegates. The act provided as follows:—“For lack of justice at or in any of the courts of the archbishops of this realm, or in any of the king’s dominions, it shall be lawful for the parties grieved to appeal to the King’s Majesty in the King’s court of Chancery; and that upon every such appeal a commission shall be directed under the Great Seal to such persons as shall be named by the King’s Highness his heirs and successors, like as in case of appeal from the Admiral’s court, to hear and definitively determine every such appeal, and the causes concerning the same. And that such judgment as the said commissioners shall make and decree . . . shall be good and effectual, and also definitive.”1 An appeal to the same body was provided from such peculiar jurisdictions as were exempt from episcopal or achiepiscopal control.2

A person desiring to appeal addressed a petition to the crown in Chancery, on which a commission of appeal issued appointing certain commissioners. If any of these commissioners died pending the appeal, if they were equally divided, or if, for any reason, it was desired to increase the strength of the court, a “commission of adjuncts” issued, adding certain persons to the court. It followed that the court was differently constituted for the hearing of each appeal.3

Henry VIII.’s statute declared the judgment of the Delegates to be final. But it was decided by the Elizabethan lawyears that the crown could, like the Pope, issue a commission of Review, to hear the whole case over again.4

The Court was not a court of first instance. It heard appeals from the provincial courts, and from the exempt peculiar jurisdictions. It did not control the court of High Commission, the abolition of which necessarily added to the number of cases heard before it.4

The crown had an absolute discretion as to the persons to be appointed. But, as the lawyers of Doctors’ Commons were the only lawyers acquainted with canon or civil law and procedure, certain of them were usually included in the commission. In some of the earlier cases bishops and judges were included. In the 18th century the bishops are rarely included, and are at length entirely excluded.5 It was stated in 1832 that in ordinary cases the delegates were three puisne judges and three civilians, though, in special cases, temporal peers, and other judges might be added.1

The Court was not satisfactory. It was a shifting body. No general rules of procedure could be established. It did not as a rule give reasons for its decisions. Its members were only paid a guinea a day; and consequently it was usually composed of the junior civilians. On them, the judges of the Common Law Courts, appointed as delegates, were obliged to rely for their law.2

In consequence of the dissatisfaction felt at the working of this tribunal the Ecclesiastical Commission of 1832, in a special report, recommended the transfer of its jurisdiction to the Privy Council. This recommendation was carried out by 2, 3 Will. IV. c. 92.3 The jurisdiction is now exercised by the Judicial Committee of the Privy Council created by 3, 4 Will. IV. c. 41.4

(3) The Court of High Commission.

The Court of High Commission was created, as we have seen, under powers given to the crown by the Act of Supremacy.5 The first commission was issued in 1559 to Parker, Grindal, and seventeen others. Their duties were to enforce the Acts of Supremacy and Uniformity, and to deal generally with ecclesiastical offences. They could conduct their enquiries with or without a jury. They could summon persons on suspicion. They could examine any one on oath.6 The later commissions are all formed on the model of the first. But they show a tendency to increase the jurisdiction of the commissioners. They were entrusted with the acts for the protection of the Establishment passed later in the reign. The qualifying clause, “according to the authority and power limited, given, and appointed by any laws or statutes of the realm,” which is inserted in the earlier commissions, was omitted in 1596. The authority given to the commissioners was not diminished under James I. and Charles I. In 1613 they were empowered to execute the Star Chamber rules as to the censorship of the press, and to hear complaints of wives against husbands. In the commission of 1625 it was provided that, during the session of Convocation, their powers should be exercised only by the bishops in Convocation. But this clause was dropped in the following reign.1

The Court entertained all important causes of doctrine and ritual. During its existence not many of these causes came before the Court of Delegates. But the causes which it most frequently entertained were proceedings in respect of immorality and misconduct of the clergy and laity, and proceedings in respect of recusancy and non-conformity. It did not supersede the ordinary Ecclesiastical Courts. It exercised a concurrent jurisdiction.2

The Commissioners could exercise their powers throughout England. But, as a rule, separate commissions were issued for the provinces of York and Canterbury, and sometimes for separate dioceses.3 Their powers were, as we have seen, wide and indefinite; and, except in the commissions of 1611, 1613, 1620, and 1625, their exercise was subject to no appeal.4

A strong court of this nature was necessary to support the Established Church against its Puritan and Catholic enemies.5 It was not at first unpopular. But, as Mr. Prothero points out, “The efficiency of the system . . . and the general results produced, depended mainly on the views and characters of the archbishops and their episcopal colleagues, on whom fell almost all the burden of carrying the commission into effect.”1 In the Stuart period, as we have seen, the state was divided into two camps.2 Just as the supporters of the Council, the Admiralty, and the court of Chancery, relying on the prerogative, opposed the common lawyers, who led the parliamentary opposition; so the supporters of the State Church relied upon the court, which exercised the Royal Supremacy, in their efforts against sectaries of all kinds. The Puritans necessarily found themselves in alliance with the common lawyers; and in this manner a religious element was imported into the political and legal controversy, which was destined to prove, for an interval, fatal to the constitution. Though Coke had, in Caudrey’s case,3 unduly magnified the Royal Supremacy, he found, in his Fourth Institute, many reasons for showing that the Court of High Commission had exceeded its powers. He denied it the right to fine and imprison.4 He commented upon the lengthy provisions of the more recent commissions and the denial of all right to appeal.5 He contended that it should deal only with important cases.6 The common lawyers followed his lead. The action of the court was fettered by writs of prohibition. Persons imprisoned by it were released by writs of habeas corpus.7 It was attacked by Parliament in 1610,8 and necessarily fell with the victory of the Parliamentary party in 1640.9 The same act abolished all the other Ecclesiastical Courts. The court of High Commission was not restored at the Restoration with the other Ecclesiastical Courts.10

(4) The Statutory Courts of the 19th century.

Certain statutes of the last century have provided new and more convenient procedure, and, in some cases, new courts, for the exercise both of criminal and civil jurisdiction.

The procedure of the Ecclesiastical Courts had become so dilatory and expensive that much difficulty had been found in bringing to justice clergy guilty of immoral conduct. The ecclesiastical commissioners reported in 1832 that, “some cases of a flagrant nature, which have occurred of late years, have attracted the attention of the Public to the corrective Discipline of the Church, as administered by the Ecclesiastical Courts, and have at the same time exhibited in a strong light the inconveniences which have attended the application of the ordinary process of the Courts to such suits; namely, an injurious delay in effecting the desired object of removing Ministers of immoral and scandalous lives from the administration of the sacred offices of the Church; and the large expense incurred in such suits.”1

The Church Discipline Act of 18402 was passed to deal with the cases of clerks “who may be charged with any offence against the laws ecclesiastical, or concerning whom there may exist scandal or evil report as having offended against the said laws.”3 It enacted that no criminal suits be instituted otherwise than according to procedure provided by the Act.4

In cases where a clerk is charged with an offence the bishop, may, on the application of a complainant, or of his own motion, issue a commission to five persons to inquire. They must report to the bishop whether there are prima facie grounds for instituting proceedings.5 With the consent of the party accused, the bishop may pronounce sentence without further proceedings.6 If he does not consent, articles are drawn up against the party accused.7 If he admits the truth of the articles the bishop (or his commissary specially appointed for that purpose) may pronounce sentence.8 If not, either the bishop assisted by three assessors may hear the case, or the bishop may send the case to be tried by the court of the Province.9 But the letters of request for this purpose must have been sent before the filing of the articles.10 An appeal is provided to the court of the Province and to the Privy Council.11 In order to avoid the double appeal, most cases were sent by the bishop to the court of the Province in the first instance.1

The provisions of the Act did not apply to persons instituting suits to establish a civil right.2 They did apply to all exempt and peculiar places, except those belonging to bishoprics or archbishoprics.3 Pending the enquiry or trial, the bishop was empowered to inhibit the party accused from continuing to perform the services of the church.4 This act has for most purposes been repealed, in respect of offences committed by clergymen, which come within the provisions of the Clergy Discipline Act of 1892.5

The Act provides that a clergyman convicted of treason, certain felonies and misdemeanours, or adultery, or against whom a bastardy order, or a decree for judicial separation has been made, shall ipso facto forfeit his preferment within twenty-one days.6 It provides that a clergyman may be prosecuted, in the Consistory Court of his diocese, by any of his parishioners, if he is convicted by a temporal court of an act (other than those named above) constituting an ecclesiastical offence, or, if he “is alleged to have been guilty of any immoral act, immoral conduct, or immoral habit, or of any offence against the laws ecclesiastical, being an offence against morality, and not being a question of doctrine or ritual.”7 The bishop may in all cases disallow the prosecution if he sees fit. The trial is before the bishop’s chancellor; but, if either party so requires, questions of fact must be decided by five assessors.8 There is an appeal on any question of law, and, with the leave of the appellate court, on any question of fact, either to the court of the Province or to the Privy Council.9

In 1874 the Public Worship Regulation Act10 gave to the existing Ecclesiastical Courts a new machinery for the trial of offences against the ceremonial law of the church. An archdeacon, a churchwarden, or any three parishioners of the archdeaconry or parish within which a church or burial ground is situate, may represent to the bishop that unlawful additions have been made in the fabric or ornaments of the church, or that there has been use of unlawful ornaments, or neglect to use prescribed ornaments, or that there has been failure to comply with the rules of the book of Common Prayer, as to the conduct of services.1 The bishop may, if he pleases, refuse to institute proceedings.2 If he thinks that proceedings should be taken, he may himself, with the consent of both parties, deal finally with the case.3 If they do not consent, the case is heard by the judge of the court of the Province.4 From his decision an appeal lies to the Privy Council.5

The working of this act has not been found to be altogether satisfactory. The ecclesiastical commissioners of 1883 reported that it added little to the powers conferred on the Court of the Arches by the Church Discipline Act; and that, in practice, proceedings taken under it were no more convenient than proceedings taken under the earlier act.6

The Benefices Act of 18987 gave to the bishop in certain cases8 the power to refuse to institute a person presented to a benefice. An appeal from such refusal lies to the archbishop of the Province, and to a judge of the supreme court, nominated pro hac vice by the Lord Chancellor.9 The judge decides any question of law, and finds the facts. The archbishop gives judgment as to whether the facts so found renders the presentee unfit for the duties of the benefice.10 From this decision there is no appeal.10 The same tribunal is given a jurisdiction in cases where a bishop has superseded and inhibited an incumbent, by reason of negligent performance of his duties. The incumbent can in such cases appeal to this tribunal. The judge decides whether there has been negligence. The archbishop, if negligence is found, decides whether it is good ground for the inhibition.11

(iii) The jurisdiction of the Ecclesiastical Courts.

In the 12th century the Ecclesiastical Courts claimed to exercise wide jurisdiction. (1) They claimed criminal jurisdiction in all cases in which a clerk was the accused, a jurisdiction over offences against religion, and a wide corrective jurisdiction over clergy and laity alike “pro salute animæ.” A branch of the latter jurisdiction was the claim to enforce all promises made with oath or pledge of faith. (2) They claimed a wide jurisdiction over matrimonial and testamentary causes. Under the former head came all questions of marriage, divorce, and legitimacy; under the latter came grants of probate and administration, and the supervision of the executor and administrator. (3) They claimed exclusive cognisance of all matters which were in their nature ecclesiastical, such as ordination, consecration, celebration of service, the status of ecclesiastical persons, ecclesiastical property such as advowsons, land held in frankalmoigne, and spiritual dues.

These claims were at no time admitted by the state in their entirety. In course of time most of these branches of jurisdiction have been appropriated by the state. All that is practically left at the present day is a certain criminal or corrective jurisdiction over the clergy, and a certain jurisdiction in respect of some of the matters contained under the third head. The history of this jurisdiction we must now sketch.

(1) Criminal and corrective jurisdiction.

(a) Criminal jurisdiction.

In the 12th century the Church claimed that all clerks should be exempt from any kind of secular jurisdiction, and, in particular, that “criminous clerks” should be subject to the jurisdiction of the Ecclesiastical Courts alone.1 In answer to this claim Henry II., in 1164, propounded the scheme contained in the third clause of the Constitutions of Clarendon.2 He contended that that scheme represented the laws in force in the time of Henry I. According to the clause the clerk is accused before the temporal court. He must there plead his clergy. He will then be sent to the Ecclesiastical Court for trial, and a royal officer will attend the trial. If he is found guilty and degraded the royal officer will bring him back, as a layman, to the temporal court to suffer the layman’s punishment. Becket objected to this scheme on three grounds:—(1) A clerk ought not to have been accused before the temporal court; (2) a royal officer ought not to have been present in the Ecclesiastical Court; (3) further punishment by the lay court involved an infringement of the rule that no man ought to be punished twice for the same offence. The first two of these objections were good according to the canon law. As to the third the canon law was not at that date clear; but the principle for which Becket contended was shortly afterwards condemned by Innocent III.1 The results of Becket’s murder were curious. The temporal courts maintained their claim to bring the criminous clerk before them. They abandoned their claim to punish the degraded clerk. This abandonment gave rise to the Privilege or Benefit of Clergy.

Originally the Benefit of Clergy meant that an ordained clerk charged with felony could be tried only in the Ecclesiastical Court. But, before the end of Henry III.’s reign, the king’s court, though it delivered him to the Ecclesiastical Court for trial, took a preliminary inquest as to his guilt or innocence.2 The Ecclesiastical Court then tried the accused by the obsolete process of compurgation.3 The court could sentence to degradation, imprisonment or whipping. The Benefit of Clergy did not apply to high treason, to breaches of the forest laws, to trespasses or misdemeanours.4

In course of time the Benefit of Clergy entirely changed its nature. It became a complicated series of rules exempting certain persons from punishment for certain criminal offences.1

(1) The class of persons who could claim it was enlarged, and distinctions were drawn between them. In 13502 it was enacted that secular as well as religious clerks should have the privilege. After this statute the privilege became extended to all who could read. In 17053 even this requirement was abolished. But traces of the time when the privilege was really a privilege of the clergy were long maintained in the rules that the “bigamus” (i. e. the men twice married or married to a widow) and a woman, could not claim it. The first exception lasted till 1547,4 the second till 1692.5

In 14876 it was enacted that all persons, except those actually in orders, should, if convicted of a clergyable felony, be branded and disabled from claiming the privilege a second time. In 15477 a peer, even if he could not read, was given the same privilege as a person actually in orders.

(2) Changes were made in the method and consequences of successfully pleading clergy.

It had been found better for the prisoner not to plead his clergy at once, but to plead to the indictment, and take his trial, as he could then challenge the jury, and there was always a chance that he might be acquitted. If he was convicted he could then plead his clergy.8

In 15769 the necessity for proving innocence in the Ecclesiastical Court by compurgation was abolished. But the judges could imprison persons (not being peers or clerks in orders), who had taken the Benefit of Clergy, for any term not exceeding a year. In 17171 it was enacted that persons convicted of clergyable larcenies (not being peers or clerks in orders) should be transported for seven years.

(3) The number of offences not clergyable were gradually increased and, when new offences were created, they were generally stated to be without Benefit of Clergy.

We have seen that at common law, high treason, breaches of the forest laws, and misdemeanours were not clergyable. On the other hand all felonies except insidiatio viarum, and depopulatio agrorum were clergyable.2 By successive statutes the following offences were deprived of the benefit of clergy:—Petty treason, murder in churches or highways, and later all murders, certain kinds of robbery and arson (except in the case of clerks in orders), piracy, burglary and housebreaking if any one was in the house and put in fear, horsestealing, rape, abduction with intent to marry, stealing clothes off the racks, or stealing the king’s stores.3

In 18274 the Benefit of Clergy was abolished.

(b) Corrective jurisdiction.

The Ecclesiastical Courts exercised a wide and vague control over the religious beliefs and the morals of clergy and laity alike. The state regarded itself as under a duty to enforce obedience to the laws of God. The Ecclesiastical Courts were the instruments through which the state acted. The result was “a system of moral government emanating from the episcopal order, and forming that part of the pastoral care, which is fully expressed in the Consecration Service, when the bishop promises that such as be unquiet, disobedient, and criminous within his diocese, he will correct and punish, according to such authority as he has by God’s word, and as to him shall be committed by the ordinance of this realm.”5

We may divide the extensive jurisdiction thus exercised by the Ecclesiastical Courts into two heads:—(α) offences against religion, (β) offences against morals.

(α) Offences against religion.

Of such offences the most important is heresy. It was regarded as a species of high treason against the church. “A man who did not begin by admitting the king’s right to obedience and loyalty, put himself out of the pale of the law. A man who did not believe in Christ or God put himself out of the pale of human society; and a man who on important subjects thought differently from the church, was on the high road to disbelief in Christ and in God, for belief in each depended ultimately upon belief in the testimony of the church.”1 The infrequency of heresy, down to the time of Wicklif and the Lollards, makes it somewhat uncertain in what manner the Ecclesiastical Courts could deal with it. The case of the deacon, who was burnt at Oxford because he apostatized for the love of a Jewess, is the only undoubted case mentioned in the older books.2 But heresy was known on the continent, and there is no doubt that the canon law distinctly laid it down that the penalty was death by burning.3 It is to this rule of the canon law that Lyndwood refers as authority for the proposition the heretics must be burnt.4 The accounts we have of the story of the deacon and the Jewess are too obscure to make it an authority for any distinct legal proposition. But the case of Sawtre (1400) is a clear case in which the rule of the canon law was applied. He was convicted of heresy before the bishop of Norwich and recanted his heresy. He fell again into heresy, and was condemned by the archbishop and his provincial council, as a relapsed heretic. On this conviction the king issued a writ de hæretico comburendo.1

This case clearly shows that the common law recognised the rule of the canon law, and that therefore such a writ lay at common law. It was not till a fortnight after this writ was issued that the act 2 Henry IV. c. 15 was passed with a view to strengthen the hands of the law in dealing with heresy. That act provides that persons “defamed or evidently suspected” of heresy shall be detained in the bishop’s prison till they abjure. If they decline to abjure, or relapse, they are to be burnt. By a later act of 14142 all officials “having governance of people” were directed to take an oath to use their best endeavours to repress heresy. They were to assist the Ecclesiastical Courts whenever required. The justices of assize and the justices in quarter sessions were to receive indictments of heresy, and to deliver over the persons indicted to be tried by the Ecclesiastical Courts.

The act thus gave the clergy power to arrest and imprison by their own authority, and to requisition the aid of the civil power in so doing.3

Henry VIII.’s legislation necessitated some changes in the law relating to heresy. By an act of 15334 it was declared that speaking against the authority of the pope, or against spiritual laws repugnant to the laws of the realm, should not be heresy. The act of 2 Henry IV. c. 15 was repealed, and the bishops were thereby deprived of the power to arrest and imprison on suspicion. The tourn and the leet, as well as the justices of assize and the quarter sessions, were given power to receive indictments of heresy. Thus an accusation for heresy must, as a rule, begin by an indictment before some recognised temporal court. The result was a great cessation in prosecutions for heresy.5 The act of the Six Articles6 (1539) made the holding of certain opinions felony; and it was provided that commissions should issue to the bishop and other persons to inquire into these offences four times a year.

In Edward VI.’s reign all the previous legislation touching heresy was repealed. The common law was restored.1 But the common law was the law settled by Sawtre’s case.2 The result was curious. Persons might be burnt for heresy in a Protestant country under the authority of the papal canon law.

Elizabeth’s Act of Supremacy authorised the establishment of the court of High Commission for the trial of ecclesiastical offences.3 But it considerably limited their powers to declare opinions heretical.4 If, however, a man was convicted of heresy by the court he might be burnt according to the rule of the common law. Heretics were burnt in 1575 and 1612. In the latter case Coke’s opinion was against the legality of the issue of the writ de hæretico comburendo, but four judges were against him.5 In 16776 “all punishment of death in pursuance of any ecclesiastical censures” was abolished. But the act contained a proviso that nothing in it shall “take away or abridge the jurisdiction of Protestant archbishops or bishops, or any other judges of any Ecclesiastical Courts, in cases of atheism, blasphemy, heresy, or schism, and other damnable doctrines and opinions, but that they may proceed to punish the same according to his Majesty’s ecclesiastical laws, by excommunication, deprivation, degradation, and other ecclesiastical censures not extending to death.” Many of these offences can now be punished in the temporal courts: but by virtue of this saving it is probably theoretically possible that persons guilty of such offences may be excommunicated, and imprisoned for six months by an Ecclesiastical Court.

(β) Offences against morals.

The Ecclesiastical Courts exercised a wide disciplinary control over the moral life of the members of the church. The criminal precedents published by Archdeacon Hale in 1847 illustrate the nature of the jurisdiction. They consist of a collection of extracts from the Act Books of six Ecclesiastical Courts between the years 1475 and 1640. The offences dealt with are varied and numerous. They comprise, adultery, procuration, incontinency, incest, defamation, sorcery, witchcraft, behaviour in church, neglect to attend church, swearing, profaning the Sabbath, blasphemy, drunkenness, haunting taverns, heretical opinions, profaning the church, usury, ploughing up the church path.1 The methods by which the Ecclesiastical Courts proceeded were well calculated to produce evidence of the commission of such offences. They might proceed:—(1) By inquisition. In this case the judge was the accuser. He might proceed upon his own personal knowledge or on common fame. As a rule the apparitors or other officers supplied the information. They used their powers in many cases in the most corrupt manner. Chaucer probably represented the popular view when he makes the Friar say of the “sompnour”—

• “A sompnour is a renner up and doun
• With maundementz for fornicacioun,
• And is y-bete at every tounes ende.”

Or (2) they might proceed on the accusation of some individual who was said to “promote the office of judge.” Or (3) they might proceed by Denunciation. In that case the person who gave the information was not the accuser, nor subject to the conditions attaching to this position.1 This system was, as Stephen says, “in name as well as in fact an inquisition, differing from the Spanish Inquisition in the circumstances that it did not . . . employ torture, and that the bulk of the business of the courts was of a comparatively unimportant kind.”2 We can see, from the number of cases tried, that up to 1640 the system was in full vigour. In the archdeacon of London’s court, between Nov. 27, 1638, and Nov. 28, 1640, there were 30 sittings and 2500 causes entered. If each person attended on two or three court days the number of persons prosecuted would be less than this. But the records show that 1800 people were before the court in that time, “three-fourths of whom, it may be calculated, were prosecuted for tippling during Divine Service, breaking the Sabbath, and non-observance of Saints days.”3

It is not difficult to see why the Parliament in 1640 abolished the Ecclesiastical Courts. A system which enabled the officers of inferior courts to enquire into the most private affairs of life upon any information was already out of date.

The ordinary Ecclesiastical Courts and their jurisdiction were restored in 1661;4 and there is no legal reason why at the present day they should not try cases of adultery or fornication. But between the Restoration and the present day their jurisdiction has been much curtailed, and has finally altered its shape, not only because men’s ideas upon methods of moral government have changed, but also because the state has interfered to punish offences which were once left to the Ecclesiastical Courts. In 1533 unnatural offences, and in 1541 witchcraft were made felonies.1 In 1603 bigamy was made felony.2 In 1823 jurisdiction in cases of perjury was taken away from the Ecclesiastical Courts.3 In 18554 suits for defamation, and in 18605 suits against laymen for brawling in church were similarly removed. It was a principle laid down by Coke, as an established maxim in law, “that where the common or statute law giveth remedy in foro seculari (whether the matter be temporal or spiritual), the conusance of that cause belongeth to the king’s temporal courts only; unless the jurisdiction of the spiritual courts be saved, or allowed by the same statute, to proceed according to the ecclesiastical laws.”6 The result is that while the jurisdiction of the Ecclesiastical Courts over certain kinds of immorality still in theory remains, in practice these courts are only called upon to act in the case of the clergy. In this respect, as we have seen, their jurisdiction has been improved.7 They are no longer “courts of law having authority over the sins of all the subjects of the realm.” They are “courts for enforcing propriety of conduct upon the members of a particular profession.”8

The Ecclesiastical Courts at one time claimed a species of corrective jurisdiction in all cases in which there had been fidei læsio. This, if conceded, would have given them an extensive jurisdiction over contract. We have seen that in the 14th century the temporal courts stopped the exercise of this species of jurisdiction.9

(2) Matrimonial and Testamentary causes.

(a) Matrimonial.

The Ecclesiastical Courts had, certainly from the 12th century, undisputed jurisdiction in matrimonial causes. Questions as to the celebration of marriage, as to the capacity of the parties to marry, as to the legitimacy of the issue, as to the dissolution of marriage were decided by the Ecclesiastical Courts administering the canon law.1 The common form of the writ of prohibition always alleged that the matter over which jurisdiction had been assumed was neither matrimonial nor testamentary.2

The temporal courts had no doctrine of marriage. But questions as to the validity of marriage might come incidentally before them. Was a woman entitled to dower? Is the child of a marriage entitled to inherit English land? What if the parties, ignorant of any impediment, marry in good faith and have issue? What if the jurors in an assize find facts from which a marriage can be presumed? In answering some of these questions the temporal courts often laid down rules about marriage which were at variance with the rules of the canon law. The canon law laid it down clearly that mere consent—without any further ceremony, and without cohabitation—sufficed. The temporal courts laid more stress upon some ceremony, or some notorious act. The death-bed marriage was not regarded as sufficient to establish a claim to dower. A child legitimated per subsequens matrimonium could not inherit English land. If the parties were ignorant of the impediment, and later whether or not they were ignorant, the children were legitimate, if born before divorce, or, later, if their parents were not divorced. For the purposes of an assize a de facto marriage would be recognised.3 It was probably a consideration of these rules of the temporal courts, adjudicating on marriage, or rather on the reputation of marriage, for very special purposes, which led the House of Lords in 18434 to assert, in defiance of the canon law of the Middle Ages, that the presence of an ordained clergyman was necessary to constitute a valid marriage.

Over the law of divorce the Ecclesiastical Courts had complete control till 1857. This jurisdiction comprised suits for the restitution of conjugal rights, suits for nullity, either when the marriage is ab initio void, or when it is voidable, suits for a divorce a mensa et thoro by reason of adultery or cruelty. The Ecclesiastical Courts could pronounce a marriage void ab initio; and in that case the parties were said to be divorced a vinculo matrimonii. But they had no power to pronounce a divorce a vinculo if there had been a valid marriage.1

For a short time after the Reformation the Ecclesiastical Courts seemed to have considered that they had this power.2 But this opinion was overruled in 1602.3 A valid marriage was therefore indissoluble, except with the aid of the legislature. At the end of the 17th century a practice sprang up of procuring divorces by private act of Parliament.4 The bills were introduced into the House of Lords, who strictly examined the circumstances of the case. As conditions precedent it was necessary to have obtained a decree a mensa et thoro from the Ecclesiastical Court, and to have recovered damages against the adulterer in an action at common law for criminal conversation.

The anomaly of this state of the law was striking. It practically made divorce the privilege of the very rich. This was forcibly expressed by Maule, J., in his address to a prisoner who had been convicted of bigamy, after his wife had committed adultery, and deserted him. “Prisoner at the bar,” he said, “you have been convicted of the offence of bigamy, that is to say, of marrying a woman while you have a wife still alive, though it is true she has deserted you, and is still living in adultery with another man. You have, therefore, committed a crime against the laws of your country, and you have also acted under a very serious misapprehension of the course which you ought to have pursued. You should have gone to the Ecclesiastical Court and there obtained against your wife a decree a mensa et thoro. You should then have brought an action in the Courts of Common Law and recovered, as no doubt you would have recovered, damages against your wife’s paramour. Armed with these decrees you should have approached the legislature, and obtained an act of Parliament, which would have rendered you free, and legally competent to marry the person whom you have taken on yourself to marry with no such sanction. It is quite true that these proceedings would have cost you many hundreds of pounds, whereas you probably have not as many pence. But the law knows no distinction between rich and poor. The sentence of the court upon you therefore is that you be imprisoned for one day, which period has already been exceeded, as you have been in custody since the commencement of the assizes.”

In 1857 all jurisdiction over divorce and over “all causes and suits and matters matrimonial” were taken from the Ecclesiastical Courts and vested in a court called the Divorce court.1 The Lord Chancellor, the chief justices, and the senior puisne judges of the Courts of Common Law, and the judge of the court of Probate were made the judges of the court. The judge of the court of Probate was made the judge ordinary of the court.2 In some cases he could sit alone, in others he must sit with one of the other judges of the court. When he sat alone there was an appeal to the full court.3 An appeal to the House of Lords from decrees of dissolution or nullity of marriage was provided in 1868.4

In this court was vested the jurisdiction and powers of the Ecclesiastical Courts, the powers of the legislature to grant an absolute divorce, the powers of the Common Law Courts to award damages in an action for criminal conversation.5 The latter action was abolished.6 In addition a wife deserted by her husband was enabled to apply to the magistrate for a protection order.7

The act has been in the opinion of the person most qualified to judge a complete success. Sir Francis Jeune writes,1 “Probably few measures have been conceived with such consummate skill and knowledge, and few conducted through Parliament with such dexterity and determination. The leading opponent of the measure was Mr. Gladstone, backed by the zeal of the High Church party, and inspired by his own matchless subtlety and resource. But the contest proved to be unequal. After many debates, in which every line, almost every word, of the measure was hotly contested . . . it emerged substantially as it had been introduced. Not the least part of the merit and success of the act of 1857 is due to the skill which, while effecting a great social change, did so with the smallest possible amount of innovation.”

(b) Testamentary.

The ecclesiastical courts obtained jurisdiction over grants of Probate and Administration, and, to a certain degree, over the conduct of the executor and administrator. All these branches of their jurisdiction could be exercised only over personal estate; and this abandonment of jurisdiction to the Ecclesiastical Courts has tended, more than any other single cause, to accentuate the difference between real and personal property. Even when the Ecclesiastical Courts had ceased to exercise some parts of this jurisdiction, the law which they had created was exercised by their successors.

We shall consider (1) the origin and extent of the jurisdiction of the Ecclesiastical Courts, and (2) the decay of this jurisdiction.

(1) The origin and extent of the jurisdiction of the Ecclesiastical Courts.

(a) Jurisdiction over grants of Probate.

The origin of this jurisdiction is difficult to discover. Neither the civil nor the canon law sanctioned it.2 We hear nothing of it in England in the 12th century; and Selden says “I could never see an express probate in any particular case older than about Henry III.”3 Testators rather sought the protection of the king or of some powerful individual; and the effect might be somewhat similar to that of a grant of probate in later law.1

But as early as the reign of Henry II. it is probable that jurisdiction in cases of disputed wills belonged to the Ecclesiastical Courts. Glanvil says definitely that this was the law in his day;2 and amid all the disputes of Henry II.’s reign, as to the limits of the jurisdiction of the Ecclesiastical Courts, no claim to exercise this species of jurisdiction was put forward by the king’s courts.3 Once admit that the Ecclesiastical Courts have jurisdiction to decide cases of disputed wills, and a jurisdiction to grant probate will follow. At the same time old ideas die hard. Some lords of manors successfully asserted the right to have all the wills of their tenants proved in their courts. Possibly in some cases this is a survival from the days when, probate in the technical sense being unknown, the protection of a lord was sought for a will;4 though in other cases it may, as Professor Maitland suggests, have originated in later grants from the Pope.5

In a constitution of Archbishop Stratford of 1380, the jurisdiction is said to belong to the Church, “consensu regis et magnatum regis.”6 Lyndwood says “de consuetudine tamen hæc approbatio in Anglia pertinent ad judices ecclesiasticos.”7 Selden, too, considers that it rests upon immemorial custom; though he conjectures that it may have been handed over to the Church by a Parliament of John’s reign.8 We shall see that this is more probably true of the jurisdiction over grants of the administration to one who has died intestate. But the fact that about this time the Ecclesiastical Courts got jurisdiction over grants of administration, over legacies, and, in some cases, over debts due by or to a deceased testator, may have been decisive in favour of this closely allied branch of the same jurisdiction.

(b) Jurisdiction over distribution of intestates’ goods and grants of Administration.

Probably jurisdiction over the distribution of intestates’ goods belonged originally to the temporal courts.1

In Saxon times the kindred who inherit would seem to have been the persons who superintended the distribution of intestates’ goods.2 This is the arrangement which we find in Glanvil; and neither Walter de Map nor John of Salisbury mention this branch of the jurisdiction of the Ecclesiastical Courts, though they have much to say respecting them.3

A canon made at a council held at St. Paul’s before Othobon4 (1268) speaks of “a provision made as to the goods of intestates which is said to have emanated from the prelates of the realm with the consent of the king and barons.” In the opinion of Selden5 and of Professor Maitland6 this refers to § 27 of Magna Carta, which provides that the goods of an intestate shall be distributed by the hands of his near relations and friends “per visum ecclesiæ salvis unicuique debitis.”7 This was the rule known to Bracton. “Ad ecclesiam et ad amicos pertinet executio bonorum.”8 A claim to superintend the distribution made by the kinsfolk will without much difficulty become a claim to administer. And the claim was here peculiarly strong. The man who dies intestate will probably have died unconfessed.9 There could be no sure and certain hope as to the state of such a person. The Church should obviously see that the property, of which he might have disposed by will, is distributed for the good of his soul. Distribution by the kinsfolk “pro anima ejus” of Henry I.’s Charter; distribution “per visum ecclesiæ” of Magna Carta; actual administration by the Ordinary, perhaps mark the stages by which the Ecclesiastical Courts acquired jurisdiction. Up till Edward III.’s reign the court actually administered and made the distribution among those relatives of the deceased who were entitled. But its conduct was so negligent and even fraudulent that the legislature interfered.1 The court was obliged to delegate its powers to administrators, whom it was obliged to appoint from among the relatives of the deceased.2 Instead of distributing the estate the Ecclesiastical Court merely grants administration. These administrators were by the statute assimilated in all respects to executors. Like executors they are the personal representatives of the deceased.

(c) Jurisdiction over the conduct of the executor and administrator.

In the 13th century the Ecclesiastical Courts obtained jurisdiction over legacies, and in certain cases over debts due to or by a testator.

According to the civil law the bishop had a concurrent jurisdiction with the lay courts over legacies left in pios usus.3 There is a vague provision made by some council of Mentz which seems to give the bishop an indefinite right of interference.4 But in other countries this does not appear to have given to the Ecclesiastical Courts any jurisdiction beyond that over legacies left in pios usus. In Glanvil’s time legacies could be recovered in the king’s court.1 Selden gives specimens of writs of the time of Henry III. ordering executors to fulfil the wills of their testators.2 But it is possible that the royal courts assumed jurisdiction in some of these cases for special reasons. It is probable that, even in Henry II.’s reign, the Ecclesiastical Courts had a jurisdiction concurrent with that of the temporal courts. No writ of prohibition issued if a suit for legacies was begun in the Ecclesiastical Court. Selden said that he had seen none on the plea rolls of either Richard I., John, or Henry III.3 Both Bracton and Fleta state definitely that no prohibition lies in such a case.4 In 1230 it was decided that a legatee could not recover in the king’s court, but must sue in the Ecclesiastical Court.5

When the Ordinary was obliged by law to delegate its power over the goods of an intestate to an administrator, the Ecclesiastical Court naturally assumed jurisdiction over the due distribution of the estate by the administrator.

The Ecclesiastical Courts never possessed more than a limited jurisdiction over debts due to or by a testator; and that jurisdiction was effectively exercised only for a short time.6

When Glanvil wrote, the heir is the person liable to carry out the will and to pay the debts.7 In Bracton’s time the heir must pay the debts to the extent of the chattels which he has received from the deceased, and he can sue the deceased’s creditors.8 In the time both of Glanvil and Bracton the heir sues and is sued in the king’s court. In the time of Bracton, however, the executor can sue on debts acknowledged in the testator’s lifetime, because such debts are substantially the testator’s goods. He can be sued if he has been directed in the will to pay the debts, because such direction amounts to something very like a legacy.1 Britton and Fleta limit the liability of the heir to cases where he has been specially bound to pay by the deed of his ancestor, or where the debt is owed to the king.2 It is clear that the heir is ceasing to be the person primarily liable to pay the debts of the deceased.

When the executor sues, or is sued, the proceedings take place in the Ecclesiastical Courts. The Ecclesiastical Courts naturally attempted to extend their jurisdiction to cover all actions by or against executors.3 But, in the late 13th and in the 14th and 15th centuries, the king’s court refused to allow this extension. They gave rights of action to or against executors (and later), to or against administrators.4 The Ecclesiastical Courts thus lost jurisdiction over actions of this kind.

Indirectly, however, the position which the executor or administrator came to occupy in the king’s court assisted the jurisdiction of the Ecclesiastical Courts. He gradually takes the place which the heir had occupied in the 12th century.5 He becomes primarily, and, at length, with one exception,6 solely liable to the creditors of the deceased. He becomes in fact the deceased’s personal representative.

This new position taken by the executor or the administrator tended to develop the jurisdiction of the Ecclesiastical Courts over the administration of the estate. The executor or administrator was amenable to them; and he was now the personal representative. Thus we find that the Ecclesiastical Courts laid down rules intended to secure the creditors, the legatees, or those entitled on intestacy. The executor or administrator was compelled to make an inventory.7 He must account at the close of the administration;8 and in some cases he must give a bond to secure the production of the account.1 He was given remedies against those who detained the property of the deceased.2 Penalties were denounced against him if he appropriated the deceased’s property.3 Like the tutor suspectus of Roman law he could be removed by the court if good ground of suspicion were shown.4

This jurisdiction of the Ecclesiastical Courts was clearly the consequence of the jurisdiction over probate, legacies, and the administration of intestates’ effects which they had been allowed to assume in the 13th century. That they should have gained this jurisdiction about this time is not perhaps strange. As Selden points out,5 the clergy played a part—perhaps the most important part—in the events which led to the passing of Magna Carta. There were English precedents for the jurisdiction of the Ecclesiastical Courts—though not for their exclusive jurisdiction. The only serious rival to the Ecclesiastical Courts was the king’s court. The judges of that court were generally clerics. They acted, it is true, loyally as temporal judges.6 But they cannot have been altogether opposed to “arranging a concordat” with the Ecclesiastical Courts, which eventually gave to the Ecclesiastical Courts in England a jurisdiction over matters testamentary, larger than that possessed by any other Ecclesiastical Courts in Europe. For, as Lyndwood says, this jurisdiction “de consuetudine Angliæ pertinet ad judices ecclesiasticos . . . secus tamen est de jure communi.”7

(2) The decay of the jurisdiction of the Ecclesiastical Courts.

We have seen that, in the 14th century, the executor and the administrator had been granted rights of action, and had been rendered liable to be sued in the king’s court for the debts due to and by the deceased. But the remedies given by the king’s courts were by no means complete, till, at the end of the 16th and beginning of the 17th century, it was definitely decided, that executors and administrators could sue and be sued by the action of assumpsit.1 The extension of what was in its origin a quasi delictual action to the representative was no doubt caused by the fact that he would otherwise have had recourse to the court of Equity.2 This move on the part of the Common Law Courts made a recourse to the court of Equity unnecessary in this particular class of case. But, it was the extension of the equitable jurisdiction in other directions, which finally deprived the Ecclesiastical Courts of all effective jurisdiction, except that over probate and grants of administration. This extension was necessitated by the jealousy felt by the Common Law Courts for any rival jurisdiction. The jurisdiction of the Ecclesiastical Courts was crippled; and, as the court of Equity had succeeded in defeating the attempts made by the Common Law Courts to treat it,3 as they had treated the court of Admiralty,4 and the Ecclesiastical Courts, it was able to offer more complete and better remedies.

The Common Law Courts had made it almost impossible for the Ecclesiastical Courts to act at all. They would not allow the truth of the inventory to be enquired into.5 They would not allow the creditors to examine into the truth of the executor’s accounts because he had a remedy at common law.6 They issued writs of prohibition against all who sued upon the bonds taken to secure the production of a proper account.7 We are not surprised, therefore, to find that applications were made at the end of the 15th century to the Chancellor in cases which involved the taking of accounts.8 The Chancellor could also assist the plaintiff by enforcing discovery against the executor.9 The extension of the doctrine of trusts enabled the court to control the personal representative in the interest of all who claimed under a will or an intestacy, whether they were creditors or legatees.1 It was therefore in the court of Chancery, and not in the Ecclesiastical Courts, that the rules relating to the powers, rights and duties of the personal representative have grown up. The court followed the rules of the Ecclesiastical Courts and of the Common Law Courts respectively when they were applicable.2 But it was the procedure of the court of Chancery which made it possible to distinctly conceive the complicated equities which arise in the administration of an estate. It was the rules evolved by the court which provided for their adjustment.

The statute of Distributions, it is true, attempted to strengthen the jurisdiction of the Ecclesiastical Courts with a view to secure the proper distribution of the effects of an intestate. It enabled the Ecclesiastical Courts to call administrators to account, and gave the judge power to take bonds for this purpose.3 But the superior procedure of the court of Chancery prevailed.4 The Ecclesiastical Courts in practice retained jurisdiction only over grants of probate and administration. When, in 1857, their jurisdiction in matters testamentary was taken away, it was provided that the Court of Probate then established should have no jurisdiction over legacies, or over suits for the distribution of residues.5

The Act of 1857 established a court of Probate, presided over by a single judge, to whom was given the rank and precedence of the puisne judges of the superior courts.6 It was provided that he should be the same person as the judge of the court of Admiralty.7 He was given the jurisdiction to make grants of probate and administration formerly exercised by the Ecclesiastical Courts.1 An appeal from his decision lay to the House of Lords.2

(3) Jurisdiction over matters of exclusively ecclesiastical cognisance.

The Ecclesiastical Courts still have jurisdiction over many matters of exclusively ecclesiastical cognisance, such as questions of doctrine and ritual, ordination, consecration, celebration of divine service, disputed application for faculties.3 They formerly had jurisdiction over many questions concerning ecclesiastical property such as tithes, church dues, dilapidations. But recent statutes have much curtailed their jurisdiction over these matters.4 Over one species of ecclesiastical property the temporal courts have always kept a firm hand. From Henry II.’s day the advowson has been regarded as real property, and subject to the jurisdiction of the temporal courts.5 It would appear from the Constitutions of Clarendon that Henry was at that time prepared to allow the Ecclesiastical Courts jurisdiction over property held in frankalmoigne.6 But in the 13th century this jurisdiction was denied to them. All questions relating to land, other than consecrated soil, became the subjects of temporal jurisdiction, and subject to rules of temporal law.7 The barons at the council of Merton refused to change these rules as to legitimacy in order to bring them into harmony with the law of the church. Up to the 17th century a man might, if his parents had subsequently married, be legitimate for some purposes, without being capable of inheriting English land.8

The process by which the Ecclesiastical Courts enforced obedience to their decrees was excommunication. It was to the spiritual courts what outlawry was to the temporal courts. If the excommunicate did not submit within 40 days, the Ecclesiastical Court signified this to the crown, and thereon a writ de excommunicato capiendo1 issued to the sheriff. He took the offender and kept him in prison till he submitted. When he submitted the bishop signified this, and a writ de excommunicato deliberando issued.

The temporal consequences of excommunication were serious. The excommunicate cannot do any act which is required to be done by a probus et legalis homo. “He cannot serve upon juries, cannot be a witness in any court, and, which is worst of all, cannot bring an action either real or personal, to recover lands or money due to him.”2 An act of Elizabeth’s reign improved the procedure on the writ de excommunicato capiendo.3 In 1813 it ceased to exist as part of the process of the Ecclesiastical Court to enforce appearance, and as a punishment for contempt. For it was substituted the writ de contumace capiendo.4 The rules applying to the older writ were made applicable to the new. Excommunication is still a punishment for offences of ecclesiastical cognisance; and, on a definitive sentence for such an offence, the writ de excommunicato capiendo can still issue; but it is provided that a person pronounced excommunicate shall not incur any civil penalty or incapacity, except such imprisonment (not exceeding six months) as the court pronouncing the excommunication may direct.5

[1 ]These extracts are from “The History of English Law,” 1903, vol. I, pp. 352-401 (London: Methuen & Co.).

[2 ]Lecturer in St. John’s College, Oxford. A biographical note of this author is prefixed to Essay No. 9, in volume I of this Collection.

[1 ]Bryce, Holy Roman Empire, 105, 106.

[2 ]24 Henry VIII. c. 12. Cp. the Arrêt of the Parliament of Paris (1417) Ecclesiastical Commission 1883, 171, “Le Roi notre Sire est Empereur en son Royaume, non tenant d’aucun que de Dieu, et non resortissant à quelque personne ou Seigneur que ce soit: et comme Roi et Empereur peut faire Loix en son Royaume, contre lesquels nul de son Royaume peut venir, directs nec indirecte, et mêmement par voye d’appel sur peine de Leze-Majesté.”

[1 ]Bryce, Holy Roman Empire, 109.

[2 ]P. and M. i 89.

[3 ]Ibid. 92; Encyclopædia Britannica (9th Ed.) sub voc. Canon Law.

[4 ]Alternative names were canonistæ and civilistæ.

[1 ]Innocent III. is said to have published 4000 laws.

[2 ]The five books dealt with (1) ecclesiastical officials and judges; (2) procedure in Ecclesiastical Courts; (3) rights, duties and property of the clergy: (4) marriage; (5) criminal law and ecclesiastical discipline: “Judex, Judicium, Clerus, Connubia, Crimen.”

[3 ]Encyclopædia Britannica (9th Ed.) sub voc. Canon Law; P. and M. i 92, 93.

[4 ]Instances are, Johannes Teutonicus (1212) and Bartholomæus Brixensis (1258) on the Decretum; Bernardus Parmensis (1266) on the Decretals; Joannes Andreæ (1318) on the Sext and the Clementines.

[5 ]Maitland, Canon Law, 37.

[1 ]Maitland, Canon Law, 4-6.

[2 ]Ibid 16-42.

[3 ]Ibid 46.

[4 ]Ibid 103-105, 130.

[5 ]Ibid 129.

[6 ]f. 412 (cited ibid 106 n. 1). “Imprimis sicut dominus papa in spiritualibus super omnibus habeat ordinariam jurisdictionem, ita habet rex in regno suo ordinariam in temporalibus, et pares non habet neque superiores; et sunt qui sub eis ordinariam habent in multis, sed non ita meram sicut papa vel rex.”

[7 ]Maitland, Canon Law, 108-115. This is clear from William of Drogeda’s Summa (1239) dealing with procedure in ecclesiastical cases.

[8 ]Ibid 122, 123. Knowledge of the Canon Law was an avenue to preferment. Peckham was Auditor Causarum at Rome before he was Archbishop of Canterbury. Simon of Sudbury was one of the judges of the Rota at Rome. Chicheley was Doctor of Civil and Canon Law, Hale, Precedents of Cases in the Ecclesiastical Courts, xxxii, xxxiii.

[1 ]Maitland, Canon Law, 116-120.

[2 ]Maitland, Canon Law, 74, “Some of these prelates were in all likelihood far more at home when they were hearing assizes as justiciarii domini regis than when they were sitting as justices ordinarii, and they were already leaving the canon law to their schooled officials. . . . Many a mediæval bishop must have wished that, besides having two capacities, he had been furnished with two souls, unless indeed, the soul of one of his subordinates would serve as an anima damnanda.”

[1 ]25 Ed. III. St. 6; Maitland, Canon Law, 69.

[2 ]27 Ed. III. St. 1 c. 1.

[3 ]16 Rich. II. c. 5.

[4 ]§ 6.

[5 ]§ 4 The spiritual peers being asked their advice as to papal claims protested “quil n’est pas lour entention de dire ne affirmer que nostre Saint Piere le Pape ne poet excommenger Evesques ne qu’il poet faire translations des Prelatz solonc la ley de Seinte Eglise;” but said that if bishops were excommunicated for obedience to the Pope’s commands; or such translations are made whereby the king is deprived of them against his will; “que ce est encountre le Roi et sa corone sicome est contenuz en la petition avant nome.” For the council of Merton and legitimation per subsequens matrimonium see Maitland, Canon Law, 53-56. For purposes other than that of descent to land the canon law rule prevailed.

[1 ]Holdsworth, Hist. Eng. L., vol. I, 382, 383.

[2 ]13 Ed. I. St. 4.

[3 ]9 Ed. II. St. 1.

[4 ]Holdsworth, Hist. Eng. L., vol. I, 392-399.

[5 ]Maitland, Canon Law, 58, 59; Holdsworth, Hist. Eng. L., vol. I, 400; Holdsworth, Hist. Eng. L., vol. I, App. XVIII.

[1 ]Hallam, Constitutional History, i 59; Stephen, H. C. L. ii 452, 453.

[2 ]Maitland, Canon Law, 87-89.

[1 ]Maitland, Canon Law, 85-87; Ecclesiastical Commission 1883, 170-176.

[2 ]The first mention of this term is in 27 Henry VIII. c. 20 § 1.

[3 ]21 Henry VIII. c. 5 (Probate); 21 Henry VIII. c. 6 (Mortuaries); 21 Henry VIII. c. 13 (Pluralities).

[4 ]See the recognition printed at pp. 70, 71 of the report of the Ecclesiastical Commission of 1883.

[5 ]Ecclesiastical Commission 1883, 33.

[1 ]23 Henry VIII. c. 20.

[2 ]24 Henry VIII. c. 12. See the reprint of the statute with the alterations made by the king in the preamble at pp. 213, 214 of the Ecclesiastical Commission report of 1883.

[1 ]It may be useful to contrast with this preamble the following passage from Bracton (f 5 b), “Apud homines vero est differentia personarum quia hominum quidam sunt præcellentes et prelati, et aliis principantur. Dominus Papa videlicet in rebus spiritualibus, quæ pertinent ad sacer dotium, et sub eo archiepiscopi, episcopi, et alii prælati inferiores. Item in temporalibus sunt imperatores, reges, et principes in hiis quæ pertinent ad regnum, et sub eis duces, comites, barones, magnates sive vavasores, et milites.” The two passages well represent the old order and the new.

[2 ]26 Henry VIII. c. 1.

[3 ]Report of Ecclesiastical Commission 1883, 72.

[4 ]37 Henry VIII. c. 17.

[1 ]Report of Ecclesiastical Commission 1883, 37, 38.

[2 ]25 Henry VIII. c. 20.

[3 ]25 Henry VIII. c. 19.

[4 ]27 Henry VIII. c. 15; 35 Henry VIII. c. 16.

[5 ]Strype, Memorials, i. c. 29; Anthony Wood, Fasti s. a. 1536; Hale, Precedents, etc., xxxiv, xxxv.

Maitland, Canon Law, 92-99. As to the persons competent to be judges under the older law see Ecclesiastical Commission 1883, 26. Henry could not trust the ecclesiastical lawyers to administer an ecclesiastical law which was destitute of the leading principle of the older system—the supremacy of the pope.

[1 ]31 Henry VIII. c. 14.

[2 ]xxxvi, xxxvii. At p. xxxix he points out that there was no change in the ordinary routine of the courts; the officials made no change except that of adding to their names the words “regia auctoritate suffultus.”

[3 ]Ecclesiastical Commission 1883, 41-43; Hale xliv-xlvii.

[4 ]The Consistory Court of London has no act books between the years 1546 and 1554, Hale xliv.

[1 ]Ecclesiastical Commission 1883, 41.

[2 ]1 Eliza c. 1 § 8.

[3 ]The form of oath to be taken in accordance with the Statute (§ 9) declared the Queen to be “supreme Governor.”

[4 ]Article 37; cp. Ecclesiastical Commission 1883, 73.

[5 ]1 Eliza c. 1 § 8.

[6 ]Ecclesiastical Commission 1883, 49.

[7 ]Ibid 45.

[1 ]In 1832 the Ecclesiastical Commissioners (at p. 13) reported that the ecclesiastical laws . . . have been for upwards of three centuries administered in the Principal Courts by a body of men, associated as a distinct profession, for the practice of the Civil and Canon Laws. Some of the members of this body in 1567 purchased the site upon which Doctors’ Commons now stands, on which, at their own expense, they erected houses for the residence of the Judges and Advocates, and proper buildings for holding the Ecclesiastical and Admiralty Courts, where they have ever since continued to be held. In 1768 a Royal Charter was obtained, by virtue of which the then members of the Society, and their successors, were incorporated under the name and title of “the College of Doctors of Law exercent in the Ecclesiastical and Admiralty Courts.” It saw to the strict observance of the rule that only civilians should be appointed by the bishops as their chancellors, Ecclesiastical Commission 1883, 46. It was dissolved under the provisions of 20, 21 Vict. c. 77 §§ 116, 117.

[2 ]Coke, 2nd Instit. 601-609 gives the objections of Archbishop Bancroft and the answers of the judges. In his anxiety to escape from these prohibitions the archbishop comes near to hinting that there had been a breach of continuity. “As both the Ecclesiastical and Temporal jurisdictions be now united in his Majesty, which were heretofore de facto though not de jure derived from several heads, we desire to be satisfied by the judges, whether . . . the former manner of Prohibitions . . . importing an Ecclesiastical Court to be aliud forum a foro regis, and the Ecclesiastical law not to be legem terræ, and the proceedings in those Courts to be contra Coronam et Dignitatem Regiam may now without offence to the King’s Ecclesiastical prerogative be continued, as though either the said jurisdictions remained now so distinguished and several as they were before, or that the laws Ecclesiastical, were not the King’s and the Realm’s Ecclesiastical Laws.” To which the orthodox answer was given “that both jurisdictions were ever de jure in the Crown, though the one sometimes usurped by the see of Rome; but neither in the one time nor in the other hath ever the form of Prohibitions been altered, nor can be but by Parliament,” pp. 601, 602.

[3 ]Holdsworth, Hist. Eng. L., vol. I, p. 327.

[4 ]Mackonochie v. Lord Penzance (1881) L. R. 6 A. C., at p. 446.

[1 ]Eliza. c. 1 § 20; Holdsworth, Hist. Eng. L., vol. I, p. 386.

[2 ]1 Eliza c. 2 § 2.

[3 ]§§ 4 and 5.

[4 ](1591) 5 Co. Rep. 1.

[5 ]At p. 8 a.

[1 ]At p. 9 b; cp. p. 32 b, “If it be demanded what canons, constitutions, ordinances and syndols 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 the realm, and are not contrariant or repugnant to the laws, statutes and customs of the realm, 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.” Cp. also the Queen v. Millis (1844) 10 Cl. and Fin. 678 per Tindal, L. C. J., “The law by which the Spiritual Courts of this kingdom have from the earliest times been governed and regulated is not the general canon law of Europe, imported as a body of law into this kingdom, and governing those courts proprio vigore, but, instead thereof, an ecclesiastical law, of which the general canon law is no doubt the basis, but which has been modified and altered from time to time by the ecclesiastical constitutions of our Archbishops and Bishops, and by the legislature of the realm, and which has been known from early times by the distinguishing title of the King’s Ecclesiastical Law.”

[2 ]Phillimore, Ecclesiastical Law (1895) 3. Cp. Martin v. Mackonochie (1868) L. R. 2 Ad. and Eccl. 116 for a full statement of the orthodox legal and ecclesiastical view.

[3 ]16 Car. I. c. 11; 13 Car. II. St. 1 c. 12.

[1 ]Powell, J., in the Seven Bishops case (1688) 12 S. T. at p. 427, said to the jury, “I can see no difference, nor know of none in law, between the king’s power to dispense with laws ecclesiastical, and his power to dispense with any other laws whatsoever. If this be once allowed of there will need no Parliament.” Cp. Stillingfleet, Eccl. Cases, Discourse ii, chap. iii.

[2 ]Holdsworth, Hist. Eng. L., vol. I, pp. 378-380.

[1 ]Ecclesiastical Commission 1832, 11, 12; Eccl. Commission 1883, 25, 26.

[2 ]Rex v. Tristram L. R. 1902, 1 K. B. 816.

[3 ]He is the official of the bishop in outlying portions of the diocese, Phillimore, Eccl. Law, 933.

[4 ]Ecclesiastical Commission 1883, 25, 26.

[5 ]Stubbs, Sel. Ch. 85, “Nullus episcopus vel archidiaconus delegibus episcopalibus amplius in hundret placita teneant nec causam quæ ad regimen animarum pertinet ad judicium secularium hominum adducant.” Offenders are to be tried, “non secundum hundret sed secundum canones et episcopales leges.”

[6 ]Ecclesiastical Commission 1883, 25, 26.

[1 ]It was the duty of Rural Deans to report on the manners of the clergy and laity. This rendered them necessary attendants at the episcopal visitation, and gave them at one time a small jurisdiction. Sometimes this was specially delegated to them. But this had ceased to be the case before the Reformation. The jurisdiction was absorbed by the archdeacon, Phillimore, Eccl. Law, 211-213.

[2 ]Ecclesiastical Commission 1883, 26.

[3 ]Report at p. 11. At p. 21 their number is estimated at 300. It was said that “there were some of so anomalous a nature as scarcely to admit of accurate description. In some instances these jurisdictions extend over large tracts of country, embracing many towns and parishes, as the Peculiar of the Dean of Salisbury. In others several places may be comprehended, lying at a great distance, apart from each other. Again some include only one or two parishes.” Cp. Hale, Precedents, etc., xxix-xxxi. One peculiar of the abbey of St. Albans extended over 26 parishes, and in 1505-1536 700 wills were there proved. In the Commissary’s court for the City of London, 1496-1500, 1854 persons were cited, ibid liii.

[1 ]1, 2 Vict. c. 106; 3, 4 Vict. c. 86; 10, 11 Vict. c. 98; Phillimore, Eccl. Law 927.

[2 ]The archbishop of Canterbury had also a Diocesan court for the Diocese of Canterbury which was held by a Commissary, Ecclesiastical Commission 1883, 31. As to these courts generally see ibid 31, 32, 44-46.

[3 ]The offices of Dean of the Arches and Official Principal became merged (4th Instit. 337). The courts of both the Official Principal and the Dean sat at St. Mary-le-Bow which was built on arches. Hence the court of the Official Principal becomes known as the court of the Arches.

[4 ]Maitland, Canon Law, 117-120.

[5 ]23 Henry VIII. c. 9.

[6 ]Ecclesiastical Commission 1853, 31.

[7 ]Ibid 46.

[1 ]Ecclesiastical Commission 1853, 31; Phillimore, Eccl. Law, 922, 923; Coke, 4th Instit. 337, said that it possessed no contentious jurisdiction, but dealt merely with matters pro forma, e. g. the admission to benefices, etc.

[2 ]Ecclesiastical Commission, 1883, 190.

[3 ]Read v. Bishop of Lincoln (1888) 13 P. D. 221; (1889) 14 P. D. 88. The exact nature of the jurisdiction then exercised is by no means clear, Phillimore, Eccl. Law, 73, 74.

[4 ]Ecclesiastical Commission 1883, 31.

[5 ]Lyndwood 174 sub yoc. Laicis; Bl. Comm. ii. 509. The value was ultimately fixed at £5.

[6 ]Goffin, the Testamentary Executor, 69, 70.

[7 ]Ecclesiastical Commission 1883, 31.

[8 ]Phillimore, Eccl. Law, 922; Rex. v. Archbp. of Canterbury L. R. 1902, 2 K. B. 503.

[1 ]Ibid.

[2 ]37, 38 Vict. c. 85 § 7.

[3 ]I. e. The official who granted dispensations (25 Hy. VIII. c. 21) 4th Inst. 337.

[4 ]Ecclesiastical Commission 1883, 45, 46, 52-69; Read v. Bishop of Lincoln (1889) 14 P. D. 114-117.

[5 ]4th Instit. 322; cp. Hale, 1 P. C. 390; Gibson, Codex, 353 n.g.

[6 ](1712) Brod. and Free 325.

[1 ]Ecclesiastical Commission 1883, 30; Engl. Hist. Review xvi 40, 41.

[2 ]Ecclesiastical Commission 1883, 30.

[3 ]24 Henry VIII. c. 12.

[4 ]Causes testamentary, causes of matrimony and divorce, rights of tithes, oblations and obventions. This did not apparently include heresy.

[5 ]25 Henry VIII. c. 19. Repealed 1, 2 Phil. and May, c. 8. Revived 1 Eliza. c. 1 with a saving for certain pending appeals to the Pope.

[1 ]§ 4.

[2 ]§6.

[3 ]Rothery’s Return (Parliamentary Papers 1867, lvii 75) x-xii.

[4 ]Ecclesiastical Commission 1883, 47.

[5 ]Rothery’s Return xx-xxii.

[1 ]Ecclesiastical Commission (1832) Special Rep. 6.

[2 ]Ibid 6, 159, 160 (Evidence of Joseph Phillimore).

[3 ]But a recourse to the Delegates by the special provision in the patent of a Colonial Bishop was still possible, Rothery’s Return 100.

[4 ]Holdsworth, Hist. Eng. L., vol. I, p. 293. The hearing of Ecclesiastical cases was not actually mentioned. It was assumed that this jurisdiction passed, and this was recognized by the Church Discipline Act, 3, 4 Vict. c. 86 § 16.

[5 ]1 Eliza, c. 1 § 8; Ecclesiastical Commission 1883, 49, 50.

[6 ]Nothing excited more odium than the “ex officio oath.” “This procedure, which was wholly founded on the canon law, consisted in a series of interrogations, so comprehensive as to embrace the whole scope of clerical uniformity, yet so precise and minute as to leave no room for evasion, to which the suspected party was bound to answer upon oath,” Hallam, C. H. i 202. It was abolished by 13 Car. II. St. 1, c. 12 § 4.

[1 ]Prothero, Documents, xl-xlv 227-241.

[2 ]Ecclesiastical Commission 1883 50; cp. Cases in the Courts of Star Chamber and High Commission (C. S.); Stephen, H. C. L. ii 420-427.

[3 ]Rymer, Fœdera, xvi 291, 386.

[4 ]The Commissions of those years provided for a commission of review.

[5 ]Prothero, Documents, xlvi; Hale, Precedents, etc., xlviii, xlix.

[1 ]xlvi.

[2 ]Holdsworth, Hist. Eng. L., vol. I, pp. 290, 291.

[3 ]5 Rep. 1 (1591) at p. 8 a (and cp. Moore 755) it was said that such a commission would have been lawful by virtue of the Royal Supremacy, apart from the act of Supremacy. James II.’s lawyers would probably have justified their action in setting up a new court of High Commission on some such ground as this, Stillingfleet, Eccl. Cases, ii 200, 201.

[4 ]4th Instit. 326. Cp. Stephen, H. C. L. ii 416-418.

[5 ]Ibid 326, 328.

[6 ]Ibid 331.

[7 ]Ibid 332-334.

[8 ]Prothero, Documents, 302-305.

[9 ]16 Car. I. c. 11.

[10 ]13 Car. II. St. 1 c. 12 § 3.

[1 ]At p. 56.

[2 ]3, 4 Vict. c. 86.

[3 ]§ 3.

[4 ]§ 23.

[5 ]§§ 3, 4, 5.

[6 ]§ 6.

[7 ]§ 7.

[8 ]§ 9.

[9 ]§§ 11, 13.

[10 ]§ 13.

[11 ]§ 15.

[1 ]Ecclesiastical Commission 1883, xlvi.

[2 ]§ 19.

[3 ]§ 22.

[4 ]§ 14.

[5 ]55, 56 Vict. c. 32 § 14. 3. The sections of the Church Discipline Act, which are saved, are contained in the schedule. They relate to the definition of terms; power of the bishop to pronounce sentence at once with the consent of the parties; power of the bishop to inhibit the accused party pending enquiry; witnesses to be examined on oath; power as to exempt or peculiar places.

[6 ]§ 1.

[7 ]§ 2; cp. Sweet v. Young L. R. (1902) P. 37.

[8 ]§ 2, a, c, e.

[9 ]§ 4.

[10 ]37, 38 Vict. c. 85. Cp. Ecclesiastical Commission 1883 xlvii-xlix; and Green v. Lord Penzance L. R. (1881) 6 A. C. 657.

[1 ]§ 8.

[2 ]§ 9.

[3 ]§ 9.

[4 ]§ 9.

[5 ]§ 9.

[6 ]At p. xlix.

[7 ]61, 62 Vict. c. 48.

[8 ]§§ 2, 3. 1.

[9 ]§ 3. 1.

[10 ]§ 3. 2.

[11 ]§ 9.

[1 ]P. and M. i 430-440; Maitland, Canon Law, 132-147.

[2 ]Sel. Ch. 138, Clerici rettati et accusati de quacunque re, summoniti a justicia regis venient in curiam ipsius, responsuri ibidem de hoc unde videbitur curiæ regis quod ibidem sit respondendum; Et in curia ecclesiastica, unde videbitur quod ibidem sit respondendum; ita quod justicia regis mittat in curiam sanctæ ecclesiæ ad videndum qua ratione res ibi tractabitur. Et si clericus convictus vel confessus fuerit, non debet de cetero eum ecclesia tueri.

[1 ]P. and M. i 437, 438 and notes.

[2 ]Bracton, f. 123 b, states the old practice; Britton, i 27, the new. Coke, 2nd Instit 164, assigns the change to Stat West I. c. 2 (1275). The rolls show that the change had taken place before the Statute, P. and M. i 425 n. 2.

[3 ]Holdsworth, Hist. Eng. L., vol. I, pp. 138-140. Hobart, Rep. 291 in 1620 described it as “turning the solemn trial of truth by oath into a ceremonious and formal lie.”

[4 ]P. and M. 429, 430.

[1 ]For the detailed history of the process see Stephen, H. C. L. i. 458-472; cp. Hale, 2 P. C. 323-390; and Bl. Comm. iv. 358-367.

[2 ]25 Ed. III. Stat. 3 c. 4.

[3 ]5 Anne, c. 6 § 6.

[4 ]1 Ed. VI. c. 12 § 16.

[5 ]3 Will. and Mary c. 9 § 6.

[6 ]4 Henry VII. c. 13. The distinction was abolished 28 Henry VIII. c. 1 § 7, but restored by 1 Ed. VI. c. 12 § 14.

[7 ]1 Ed. VI. c. 12 § 14.

[8 ]Carter, Legal History, 200. The new practice was also advantageous to the revenue, as, if convicted after pleading to the indictment, the prisoner’s goods were absolutely forfeited; whereas if he were convicted without pleading to the indictment, they were restored if he successfully made his purgation.

[9 ]18 Eliza. c. 7 §§ 2, 3.

[1 ]4 Geo. I. c. 11.

[2 ]Stephen, H. C. L. i 464.

[3 ]Stephen, H. C. L. i. 464-466.

[4 ]7, 8 Geo. IV. c. 28 § 6. This act did not repeal 1 Ed. VI. c. 12. There was consequently a doubt whether even after this act of 7, 8 Geo. IV. peers might not claim clergy. The doubt was set at rest by 4, 5 Vict. c. 22, which put peers accused of crimes on the same footing as commoners.

[5 ]Hale, Precedents, lvii.

[1 ]Stephen, H. C. L. ii 438. See the Litany, “Sedition, privy conspiracy, and rebellion,” are co-ordinated with “false doctrine, heresy and schism.”

[2 ]Maitland, Canon Law, 158-175; Bracton ff. 123 b, 124. He explains that, as a rule, degradation is a sufficient punishment for the clerk. But if convicted of apostasy he must be burnt, “secundum quod accidit in concilio Oxoniensi celebrato a bonæ memoriæ S. Cantuariensi archiepiscopo, de quodam diacono qui se apostatavit pro quadam Judæa, qui cum esset per episcopum degradatus, statim fuit igni traditus per manum laicalem.” Cp. Hale 1 P. C. 394 for two other doubtful cases.

[3 ]Lyndwood 293 refers to a decree of Frederic II., which had been approved by the pope, and incorporated into the Canon Law as c. 18 in Sexto, 5. 2.

[4 ]293 sub voc. pœnas in jure expressas. “Sed hodie indistincte illi qui per judicem ecclesiasticum sunt damnati de Heresi, quales sunt pertinaces et relapsi, qui non petunt misericordiam ante sententiam, sunt damnandi ad mortem per sæculares potestates, et per eos debent comburi seu igne cremari, ut patet in constitutione Frederici quæ incipit ut commissi § item mortis . . . quæ sunt servandæ ut patet e. ti. ut inquisitionis.”

[1 ]Stephen, H. C. L. ii 445-447; Maitland, Canon Law, 176, 177.

[2 ]2 Henry V. St. 1 c. 7.

[3 ]Stephen, H. C. L. ii 450.

[4 ]25 Henry VIII. c. 14.

[5 ]Stephen, H. C. L. ii 455.

[6 ]31 Henry VIII. c. 14.

[1 ]1 Ed. VI. c. 12.

[2 ]1550, Joan Boucher was burnt as a heretic.

[3 ]1 Eliza. c. 1 § 8.

[4 ]§ 20. They could adjudge nothing heresy but such as had been adjudged to be heresy “by the authority of the canonical scriptures, or by the first four general councils, or any of them, or by any other general council wherein the same was declared heresy by the express or plain words of the said canonical scriptures, or such as hereafter shall be . . . determined to be heresy by the High Court of Parliament of this realm with the assent of the Clergy in their Convocation.” As Stephen says, H. C. L. ii 461, this meant that no one could be declared heretic, because of his views as to the Catholic and Protestant controversy, unless he was anabaptist.

[5 ]Rep. xii 93.

[6 ]29 Car. II. c. 9.

[1 ]Cp. Chaucer’s summary in the Friar’s Tale:—

• “Whilom there was dwellyng in my countré
• An erchedeken, a man of gret degré,
• That boldely did execucioun,
• In punyschyng of fornicacioun,
• Of wicchecraft, and eek of bauderye,
• Of diffamacioun, and avoutrie,
• Of chirche-reves, and of testamentes,
• Of contractes, and of lak of sacraments,
• And eek of many another maner crime,
• Which needith not to reherse at this tyme;
• Of usur, and of symony also;
• But certes lecchours did he grettest woo;
• They schulde synge, if that they were hent;
• And small tythers they were fouly schent,
• If eny persoun wold upon hem pleyne,
• Ther might astert him no pecunial peyne.
• For smale tythes and for smal offrynge,
• He made the people pitously to synge.
• For er the bisschop caught hem in his hook,
• They weren in the archedeknes book:
• And hadde thurgh his jurediccioun
• Power to have of hem correccioun.”

In vol. xxv (11-56) of the Archælogia Cantiana there is an account of various presentments made between the reigns of Elizabeth and Anne in certain parishes in the Deanery of Westhere. They are of the same general character as those collected by Hale. The extracts after the Restoration deal as a rule simply with ecclesiastical matters.

[1 ]Hale, Precedents, lvii, lviii.

[2 ]H. C. L. ii. 402.

[3 ]Hale, Precedents, liv.

[4 ]13 Car. II. St. 1 c. 12.

[1 ]25 Henry VIII. c. 6; 33 Henry VIII. c. 8. Stephen, H. C. L. ii 430, says that the reason why incest in its worst form is not a crime is probably because it was, and still is, an ecclesiastical offence.

[2 ]1 Jac. I. c. 11.

[3 ]4 Geo. IV. c. 76.

[4 ]18, 19 Vict. c. 41.

[5 ]23, 24 Vict. c. 32.

[6 ]Co. Litt. 96 b; cp. Phillimore v. Machon (1876) L. R. 1 P. D. 481.

[7 ]Holdsworth, Hist. Eng. L., vol. I, pp. 378-380.

[8 ]Stephen, H. C. L. ii 437.

[9 ]Constitutions of Clarendon c. 15; Circumspecte Agatis, 13 Ed. I.; P. and M. ii 195-200; Holdsworth, Hist. Eng. L., vol. I, p. 242.

[1 ]Glanvil vii 13, 14; P. and M. ii 365, 366.

[2 ]Bracton f. 407 b.

[3 ]P. and M. ii 372-383.

[4 ]The Queen v. Millis, 10 Cl. and Fin. 534; Beamish v. Beamish, 9 H. L. C. 274; P. and M. ii 369, 370-372.

[1 ]Ecclesiastical Commission 1832, 43.

[2 ]Encyclopædia Britannica (10th Ed.) Tit. Divorce. In Lord Northampton’s case (Ed. VI) the delegates pronounced in favour of a second marriage after a decree of divorce a mensa et thoro. In the Reformatio Legum the power to grant a complete divorce was recommended.

[3 ]Foljambe’s case; Porter’s case, 3 Cro. 461.

[4 ]1669 Lord de Ross; 1692 Duke of Norfolk. Before 1715 only 5 such bills were known, between 1715 and 1775 there were 60, between 1775 and 1800 there were 74, between 1800 and 1850 there were 90.

[1 ]20, 21 Vict. c. 85.

[2 ]§§ 8 and 9.

[3 ]§ 55.

[4 ]31, 32 Vict. c. 77.

[5 ]20, 21 Vict. c. 85 §§ 6, 7, 27, 31, 33.

[6 ]§ 59.

[7 ]§ 21.

[1 ]Encyclopædia Britannica loc. cit.

[2 ]Selden, Original of the Ecclesiastical Jurisdiction of Testaments, chap. i.

[3 ]Ibid, chap. vi. Cp. P. and M. ii 339.

[1 ]Selden, ibid, chap. v, cites a case in Saxon times in which a testator made three copies of his will. One he kept; another he handed to the abbot of Ely, the chief beneficiary; the third he gave to the alderman “et petiit ab illo ut suum testamentum stare concederet.” Ibid, chap. vii, there is a case of King John assenting to or licencing the will of a certain Oliver de Rocheford.

[2 ]vii 8, Placitum de testamentis coram judice ecclesiastico fieri debet.

[3 ]Selden, Original, etc., chap. v.

[4 ]Britton i 75 does not mention this among the royal franchises.

[5 ]P. and M. ii 340. Alexander II. granted to the Cistercians in England the right to grant probate of the wills of their tenants and farmers. In other cases this jurisdiction may be the result of mere usurpation. In 1342 Archp. Stratford complained of this; and this was not a single instance, Lyndwood 260, 263.

[6 ]Hensloe’s case (1600) 9 Co. Rep. 36; Lyndwood 176 sub voc. ecclesiasticarum libertatum.

[7 ]174 sub voc. approbatis.

[8 ]Original, etc., chap. vi. Cp. P. and M. ii 339 n. 4.

[1 ]Selden, Disposition of Intestates’ Goods, chap. i; Dyke v. Walford (1846) 5 Moo. P. C. 434, 487.

[2 ]Charter of Henry I. § 7 (Sel. Ch. 101).

[3 ]Selden, Disposition, etc., chap. ii.

[4 ]John of Athona 122.

[5 ]Disposition, etc., chap. iii.

[6 ]P. and M. ii 358 n. 2.

[7 ]M. C. 1215.

[8 ]f. 60 b.

[9 ]Bracton f. 60 b.; P. and M. ii 355, 356.

[1 ]A constitution of archbp. Stratford in 1342 recites that the clergy as executors and administrators have converted goods to their own use, “in ecclesiarum fraudem seu damnum suorum creditorum liberorum et suarum uxorum qui et quæ quam de jure tam de consuetudine certum quotam dictorum bonorum habere deberet.” Cp. 13 Ed. I. c. 19; Bl. Comm. ii 495.

[2 ]31 Ed. III. St. 1 c. 11; 21 Henry VIII. c. 5. It is after the statute of Ed. III. that we get the term administrator technically used. Before, the term had been executor dative and executor testamentary, P. and M. ii 359 n. 1.

[3 ]Selden, Original, etc., chaps. iii and iv.

[4 ]Cited ibid, chap. iv, “Si heredes jussa testatoris non impleverint, ab episcopo loci illius omnis res quæ eis relicta est canonice interdicatur cum fructibus et cæteris emolumentis ut vota defuncti impleantur.”

[1 ]vii 6, 7; xii 17.

[2 ]Original, etc., chap. vii.

[3 ]Original, etc., chap. viii.

[4 ]Bracton f. 407, “Item non locum habet prohibitio in causa testamentaria si catella legentur et inde agatur in foro ecclesiastico;” Fleta II. 57. 13.

[5 ]Bracton’s Note Book no. 381.

[6 ]On this subject see Goffin, The Testamentary Executor 37-63.

[7 ]vii 8; Holmes, Common Law, 346-348.

[8 ]ff. 61, 407 b.

[1 ]f. 407 b; Goffin 40-44.

[2 ]Britton i 163; Fleta II. 62. 10 “Et notandum quod hæres non tenetur in Anglia ad debita Antecessoris reddenda, nisi per Antecessorem ad hoc fuerit obligatus, præterquam debita Regis tantum, et super hoc fit Statutum tale in magna carta”—i. e. § 26 (1215).

[3 ]Goffin 45-47.

[4 ]P. and M. ii 345.

[5 ]Goffin 47-63.

[6 ]Specialty debts where the heir is named.

[7 ]Lyndwood 176 sub voc. inventarium. Cp. 21 Henry VIII. c. 5 § 4.

[8 ]Ibid 180 (sub voc. sibi). “Inferiores, viz., Ordinarii coram Episcopo, Episcopus coram Archiepiscopo . . . Archiepiscopus autem de administratis per eum coram suis confratribus in Concilio Provinciali reddet rationem; non tamen ab eis, si quid suspiciose fecerit, redarguendus est, sed suo Superiori, viz., Papæ super hoc denunciandus.”

[1 ]170 (sub voc. sufficienter cavere); 176.

[2 ]Lyndwood 171, 179.

[3 ]Constitution of Archbp. Stratford, Lyndwood, at pp. 180, 181.

[4 ]Lyndwood 177 sub voc. nisi talibus; P. and M. ii. 341.

[5 ]Disposition, etc., chap. iv.

[6 ]P. and M. i 111-113, 139.

[7 ]P. 170 sub voc, insinuationem.

[1 ]Cleymond v. Vincent, Y. B. 12 Hy. VIII. Mich. pl. 3; Norwood v. Read (1557) Plowden 180; Pinchon’s case (1612) 9 Co. Rep. 86 b.

[2 ]Vavasour and Kyghley v. Chadworth, Cal. i xciii; Select Cases in Chancery (S. S.) nos. 104, 109, 143; Y. B. 4 Henry VII., Hill, pl. 8.

[3 ]Holdsworth, Hist. Eng. L., vol. I, p. 250.

[4 ]Ibid. 325, 326.

[5 ]Spence, Equity, i. 579.

[6 ]Ibid.

[7 ]Hughes v. Hughes (1666) Carter’s Rep. 125.

[8 ]Select Cases in Chancery (S. S.) no. 140 (1454).

[9 ]Spence, i 580; Polgrenn v. Feara, Cal. i xxxix.

[1 ]Cary 28, 29; Tothill 86; (1738) 1 Atk. 491, injunction issued to stay a suit in the ecclesiastical court; Goffin 74.

[2 ]Atkins v. Hill (1775) Cowper 284, 287.

[3 ]22, 23 Car. II. c. 10 §§ 1, 2, 3.

[4 ]In Matthews v. Newby (1682) 1 Vern. 133 Lord Hardwicke said that the ecclesiastical court had “but a lame jurisdiction.” Its jurisdiction was sometimes simply disregarded. In Bissell v. Axtell (1688) 2 Vern. 47, the Chancellor ordered a fresh account to be taken of the intestate’s personal estate, though one had already been taken by the ecclesiastical court.

[5 ]20, 21 Vict. c. 77 § 23.

[6 ]20, 21 Vict. c. 77 §§ 4, 5, 8.

[7 ]§ 10.

[1 ]§ 4.

[2 ]§ 39.

[3 ]Ecclesiastical Commission 1883, li.

[4 ]6, 7 Will IV. c. 71 (tithes); 31, 32 Vict. c. 109 (church-rates); 34, 35 Vict. c. 43 (dilapidations).

[5 ]Constitutions of Clarendon c. 1.

[6 ]c. 9. The assize utrum (App. II.) was provided to try the question whether or no the property was held by this tenure.

[7 ]P. and M. i 224-230.

[8 ]Maitland, Canon Law, 53-56.

[1 ]Holdsworth, Hist. Eng. L., vol. I, App. XVIII.

[2 ]Bl. Comm. iii 102.

[3 ]5 Eliza. c. 23.

[4 ]53 Geo. III. c. 127 § 1.

[5 ]§ 3.