[1] The Hebrew has the definite article, "the whole," [Greek: to
pan].
[2] In fact, he suggests, a curse, as in Gen. iii. 17-19, though with
a wider sweep than that passage has in mind.
[3] The text has "folly," but the parallelism and v. 7 point to
social, not intellectual, conditions, and a slight change ([Hebrew:
haskel] for [Hebrew: misken]) gives the sense "poor."
[4] The Septuagint has less well: "They (the wicked) are praised in
the city."
[5] The clause is obscure; literally "he (or, one) rises at (?) the
voice of the bird," usually understood to refer to the old man's
inability to sleep in the morning; but this is not a universal trait
of old age, and besides, a reference to affairs in the house is to be
expected; the Hebrew construction also is of doubtful correctness. A
change of the Hebrew text seems necessary; possibly we should read
[Hebrew: ishpal kol], "low is the voice," instead of [Hebrew: yakum
lekol] "he rises up at the voice."
[6] The second is perhaps to be read: "the caper-berry blooms" (white
hair); usually "the caper-berry loses its appetizing power"; Eng.
Auth. Vers. "desire shall fail." For the meaning of the word _abyona_
("caper-berry," not "desire" or "poverty"), see art. by G.F. Moore in
_Journ. of Bibl. Lit._ x. 1 (Boston, Mass., 1891).
[7] This is the Talmudic understanding of the Hebrew expression
(Jerus. Sanhed. 10, 28a, cf. Sanhed. 12a; see Ecclus. xxxix. 2).
There is no good authority for the renderings "collectors of maxims,"
"collections of maxims."
[8] It is not certain that the codex form was in use in Palestine or
in Egypt as early as the 2nd or the 1st century B.C.
ECCLESIASTICAL COMMISSIONERS, in England, a body corporate, whose full
title is "Ecclesiastical and Church Estates Commissioners for England,"
invested with very important powers, under the operation of which
extensive changes have been made in the distribution of the revenues of
the Established Church. Their appointment was one of the results of the
vigorous movements for the reform of public institutions which followed
the Reform Act of 1832. In 1835 two commissions were appointed "to
consider the state of the several dioceses of England and Wales, with
reference to the amount of their revenues and the more equal
distribution of episcopal duties, and the prevention of the necessity of
attaching by commendam to bishoprics certain benefices with cure of
souls; and to consider also the state of the several cathedral and
collegiate churches in England and Wales, with a view to the suggestion
of such measures as might render them conducive to the efficiency of the
established church, and to provide for the best mode of providing for
the cure of souls, with special reference to the residence of the clergy
on their respective benefices." And it was enacted by an act of 1835
that during the existence of the commission the profits of dignities and
benefices without cure of souls becoming vacant should be paid over to
the treasurer of Queen Anne's Bounty. In consequence of the
recommendation of these commissioners, a permanent commission was
appointed by the Ecclesiastical Commissioners Act 1836 for the purpose
of preparing and laying before the king in council such schemes as
should appear to them to be best adapted for carrying into effect the
alterations suggested in the report of the original commission and
recited in the act. The new commission was constituted a corporation
with power to purchase and hold lands for the purposes of the act,
notwithstanding the statutes of mortmain. The first members of the
commission were the two archbishops and three bishops, the lord
chancellor and the principal officers of state, and three laymen named
in the act.
The constitution of the commission was amended by the Ecclesiastical
Commissioners Act 1840 and subsequent acts, and now consists of the two
archbishops, all the bishops, the deans of Canterbury, St Paul's and
Westminster, the lord chancellor, the lord president of the council, the
first lord of the treasury, the chancellor of the exchequer, the home
secretary, the lord chief justice, the master of the rolls, two judges
of the admiralty division, and certain laymen appointed by the crown and
by the archbishop of Canterbury. The lay commissioners are required to
be "members of the Church of England, and to subscribe a declaration to
that effect." The crown also appoints two laymen as church estates
commissioners, and the archbishop of Canterbury one. These three are the
joint treasurers of the commission, and constitute, along with two
members appointed by the commission, the church estates committee,
charged with all business relating to the sale, purchase, exchange,
letting or management of any lands, tithes or hereditaments. The
commission has power to make inquiries and examine witnesses on oath.
Five commissioners are a quorum for the transaction of business,
provided two of them are church estates commissioners; two
ecclesiastical commissioners at least must be present at any proceeding
under the common seal, and if only two are present they can demand its
postponement to a subsequent meeting. The schemes of the commission
having, after due notice to persons affected thereby, been laid before
the king in council, may be ratified by orders, specifying the times
when they shall take effect, and such orders when published in the
_London Gazette_ have the same force and effect as acts of parliament.
The recommendations of the commission recited in the act of 1836 are
too numerous to be given here. They include an extensive rearrangement
of the dioceses, equalization of episcopal income, providing
residences, &c. By the act of 1840 the fourth report of the original
commissioners, dealing chiefly with cathedral and collegiate churches,
was carried into effect, a large number of canonries being suspended,
and sinecure benefices and dignities suppressed.
The emoluments of these suppressed or suspended offices, and the
surplus income of the episcopal sees, constitute the fund at the
disposal of the commissioners. By an act of 1860, on the avoidance of
any bishopric or archbishopric, all the land and emoluments of the
see, except the patronage and lands attached to houses of residence,
become, by order in council, vested in the commissioners, who may,
however, reassign to the see so much of the land as may be sufficient
to secure the net annual income named for it by statute or order. All
the profits and emoluments of the suspended canonries, &c., pass over
to the commissioners, as well as the separate estates of those
deaneries and canonries which are not suspended. Out of this fund the
expenses of the commission are to be paid, and the residue is to be
devoted to increasing the efficiency of the church by the augmentation
of the smaller bishoprics and of poor livings, the endowment of new
churches, and employment of additional ministers.
The substitution of one central corporation for the many local and
independent corporations of the church, so far at least as the
management of property is concerned, was a constitutional change of
great importance, and the effect of it undoubtedly was to correct the
anomalous distribution of ecclesiastical revenues by equalizing
incomes and abolishing sinecures. At the same time it was regarded as
having made a serious breach in the legal theory of ecclesiastical
property. "The important principle," says Cripps, "on which the
inviolability of the church establishment depends, that the church
generally possesses no property as a corporation, or which is
applicable to general purposes, but that such particular
ecclesiastical corporation, whether aggregate or sole, has its
property separate, distinct and inalienable, according to the
intention of the original endowment, was given up without an effort to
defend it" (_Law Relating to the Church and Clergy_, p. 46).
ECCLESIASTICAL JURISDICTION. This phrase in its primary sense imports
not jurisdiction over ecclesiastics, but jurisdiction exercised by
ecclesiastics over other ecclesiastics and over the laity.
"Jurisdiction" is a word borrowed from the jurists which has acquired a
wide extension in theology, wherein, for example, it is frequently used
in contradistinction to "order," to express the right to administer
sacraments as something superadded to the _power_ to celebrate them. So
it is used to express the territorial or other limits of ecclesiastical,
executive or legislative authority. Here it is used, in the limited
sense defined by an American Court, as "the authority by which judicial
officers take cognizance of and decide causes."
Origin of ecclesiastical jurisdiction.
Such authority in the minds of lay Roman lawyers who first used this
word "jurisdiction" was essentially temporal in its origin and in its
sphere. The Christian Church transferred the notion to the spiritual
domain as part of the general idea of a Kingdom of God correlative, on
the spiritual side of man upon earth, to the powers, also ordained of
God, who had dominion over his temporal estate (see CANON LAW). As the
Church in the earliest ages had executive and legislative power in its
own spiritual sphere, so also it had "judicial officers," "taking
cognizance of and deciding causes." Only before its union with the
State, its power in this direction, as in others, was merely over the
spirits of men. Coercive temporal authority over their bodies or estates
could only be given by concession from the temporal prince. Moreover,
even spiritual authority over members of the Church, i.e. baptized
persons, could not be exclusively claimed as _of right_ by the Church
tribunals, if the subject matter of the cause were purely temporal. On
the other hand, it is clear that _all_ the faithful were subject to
these courts (when acting within their own sphere), and that, in the
earliest times, no distinction was made in this respect between clergy
and laity.
The fundamental principle of ecclesiastical jurisdiction with its
"sanction" of excommunication will be found in Christ's words in Matt.
xviii. 15-18. A very early example of criminal spiritual jurisdiction
exercised by St Paul is found in the case of the incestuous Corinthian
(1 Cor. v.). We find later the same apostle exercising like jurisdiction
in the cause of Hymenaeus and Alexander (1 Tim. i. 20). After the time
of the Apostles, we find this criminal jurisdiction exercised by the
bishops individually over their respective "subjects"--doubtless with
the advice of their presbyters according to the precept of St Ignatius
(c. 110). As neighbouring dioceses coalesced into "provinces" and
provinces into larger districts (corresponding to the civil "dioceses"
of the later Roman Empire), the provincial synods of bishops and the
synods of the larger districts acquired a criminal jurisdiction, still
purely spiritual, of their own. At first this was "original" and mainly
(although not exclusively) over bishops (of the province or larger
district). The beginnings of an appellate jurisdiction in the cases of
clerics and laymen may be traced before the conversion of the Empire.
The bishop over whom the synod of neighbouring bishops had exercised
jurisdiction had no formal right of appeal; but sometimes bishops in
other parts of the Church would refuse to acknowledge the local
synodical sentence and would communicate with a bishop whom they deemed
unjustly deposed. The theory, as expressed in legal phrase by St Cyprian
in the 3rd century, was that the apostolic power of delegated
sovereignty from the Lord, alike legislative and judicial, was held in
joint-tenancy by the whole body of Catholic bishops. In both capacities,
however, a certain undefined pre-eminence was conceded to the occupants
of "Apostolic" sees, i.e. sees traditionally founded by Apostles, or of
sees with a special secular position.
Even before the edict of Milan, at least as early as the latter half of
the 3rd century, the spiritual sentences of deposition from office had
sometimes indirect temporal consequences recognized by the secular
courts. The classical example is the case of Paul of Samosata, bishop of
Antioch. It would seem that, in the intervals of persecution, some
rights of property were recognized in the Christian Church and its
officers; although the Church was an illegal society. After some
previous abortive trials, Paul of Samosata was deposed and
excommunicated, in 269, by a great synod of the Antiochene district.
Paul, notwithstanding his deposition, kept possession of the episcopal
residence. The local church sought recovery of it before the tribunals
of the Empire. The judicial authorities requested a rescript from the
emperor Aurelian for the decision of the cause. Aurelian referred the
matter to the bishop of Rome and the bishops of Italy, who gave their
award in favour of the Antiochene Church.
Temporal Jurisdiction of the Church.
Side by side with this which we may call criminal jurisdiction--none the
less real or coercive because its sanctions were purely spiritual--there
grew up a quasi-jurisdiction in causes entirely temporal, based upon the
free consent of the parties to accept the arbitration of the bishop.
This system had also its roots in the New Testament (see Matt, xviii.
15-17 and 1 Cor. vi. 1-8). In the matter of criminal jurisdiction we
paused for a moment at the edict of Milan; but we may at once trace this
second or civil branch of episcopal judicature or quasi-judicature down
as far as the reign of Charlemagne, when it underwent a fundamental
change, and became, if _either_ litigant once chose, no longer a matter
of consent but of right.
Constantine decreed that judgment in causes might be passed by bishops
when litigants preferred their adjudication to that of the secular
courts (see his epistle to the Numidian bishops and _Cod. Theodos. Tit.
de Episcopis_). The episcopal judgment was to be equivalent to that of
the emperor and irreversible, and the civil authorities were to see to
its execution. Saints Ambrose and Augustine both spent days in deciding
temporal causes. Honorius, in the West, at the end of the 4th century,
made a constitution providing that if any desired to litigate before the
bishops they should not be forbidden, but that in civil matters the
prelates should render judgment in the manner of arbitrators by consent
(_Cod._ 1, _Tit._ iv.). Where the faithful had had recourse to the
bishop, no appeal was to be allowed, and the judges were to command
execution of the episcopal decree. A quarter of a century later,
however, Valentinian III. in the West expressly provided that bishops
were not to be permitted to be judges (that is, of course, in temporal
causes), save by the consent of the parties. This legislation was,
substantially, adopted by Justinian.
On the revival of the Western Empire, however, Charlemagne, in the
beginning of the 9th century, under the mistaken belief that he was
following the authority of Constantine I. and Theodosius I., took a
great step forward, by which the bishop ceased to be a mere legally
indicated arbitrator by consent in secular causes, and became a real
judge. By a capitulary he provided that either litigant, without the
consent of the other party, and not only at the beginning of a suit but
at any time during its continuance, might take the cause from lay
cognizance and transfer it to the bishop's tribunal. He re-enacted the
prohibition of appeal.
It should be remembered that, from the latter part of the 3rd century,
the leading bishops had generally been trained in secular learning. St
Cyprian, St Ambrose and St Augustine, St Paulinus of Nola and St John
Chrysostom had practised law as teachers or advocates. St Ambrose and St
Paulinus had even held high administrative and judicial offices.
Roman empire from Constantine.
To return to the evolution of ecclesiastical jurisdiction from the time
of Constantine. With the "Nicene period" came a great development on the
criminal side. A system begins to be formed, and the secular arm
supports the decrees of the Church. The first trace of system is in the
limited right of appeal given by the first oecumenical council of Nicaea
and its provision that episcopal sentences or those of provincial synods
on appeal were to be recognized throughout the world. The fifth canon
provides that those, whether clerics or laymen, who are cut off from
communion in any particular province are not to be admitted thereto
elsewhere. Still examination must be had whether persons have been
expelled from the congregation by any episcopal small-mindedness
([Greek: mikropsychia]), or contentious spirit, or such-like harshness
([Greek: aedia]). That this may be conveniently inquired into, synods
are to be held, three in every year, in each province, and questions of
this kind examined. There is to be no "stay of execution"; the episcopal
sentence is to prevail until the provincial synod otherwise decide. It
will be noticed that as yet no provision is made for appeals by
_bishops_ from provincial synods sitting in first instance.
The edicts of Milan had only admitted the Christian Church among the
number of lawful religions; but the tendency (except in the time of
Julian) was towards making it the only lawful religion. Hence the
practice, immediately after Nicaea I., of superadding banishment by the
emperor to synodical condemnation. The dogmatic decrees of Nicaea I.
were at once enforced in this temporal manner. On the other hand, the
Arian reaction at court worked its objects (see Pusey, _Councils of the
Church_) by using the criminal spiritual jurisdiction of synods against
the Catholics--often packing the synods for the purpose. The acts of
councils of this age are full of the trials of bishops not only for
heresy but for immorality and common law crimes. The accusations are
frequently unfounded; but the trials are already conducted in a certain
regular forensic form. The secular authorities follow the precedent of
Nicaea I. and intervene to supplement the spiritual sentence by
administrative penalties. Sometimes an imperial officer of high rank
(as, e.g. a "count") is present at the synod, as an assessor to maintain
order and advise upon points of procedure. Leading examples may be found
in the various prosecutions of St Athanasius, in whose case also there
is the germ of an appeal, _tanquam ab abusu_. It has been contended
that, according to later and more formulated jurisprudence, such an
appeal would have lain, since the trial at Tyre was not concerned with
purely spiritual matters (see the case in Hefele, _Councils_, in loc.).
The trial of St Athanasius led to extensions of the right of appeal.
This was favoured by the development of the greater sees into positions
of great administrative dignity, shortly to be called "patriarchal." A
synod was held at Rome, attended by bishops from various regions, which
reversed the original judgment of the synod of Tyre which had condemned
Athanasius. A much larger synod at Antioch, gathered only from the East,
on the other hand, confirmed that judgment. This last synod did
something to systematize the criminal procedure of the Church, and its
legislation has been always received.
This legislation marks another step forward. Deposition of a bishop by a
synod, or of a priest or deacon by his bishop, is to take effect even
pending an appeal, and a cleric continuing his functions after sentence
in first instance is to lose all right of appeal. The appeal given by
Nicaea I. to clerics and laymen from episcopal excommunications is
extended. The synod may restore them if convinced of the justice of
their cause (and not merely in cases of [Greek: aedia]). A bishop may
appeal to a great assembly of bishops. Any bishop, priest or deacon
"importuning" the emperor, instead of exerting his right of appeal to
synods, is to lose all right of appeal and never to be restored or
pardoned. If a provincial synod be divided as to the guilt of a bishop,
the metropolitan is to convene bishops from the neighbouring provinces
to decide the cause jointly with the bishops of the original province.
A few years later, in 347, the council of Sardica, a council of
practically the whole West save Africa, reversed Tyre and acquitted St
Athanasius after a full judicial inquiry. This council endeavoured to
set up a system of appeals in the case of bishops, in which the see of
Rome was made to play a great part. "Out of honour to the memory of St
Peter," a condemned bishop may ask the intervention of Rome. If this be
done, the synod of first instance is to send letters to Julius, bishop
of Rome. If that prelate think the cause should be heard again, he is to
appoint judges; if otherwise, the original judgment is to be confirmed.
Pending appeal, the appellant's see is not to be filled up. The judges
appointed by the bishop of Rome to hear the appeal are to be from the
neighbouring provinces. The appellant may, however, request that bishop
to send priests from his side to sit with the synod of appeal. If such
priests are sent, they are to preside in the court of appeal. These
canons were always repudiated in the East, and when, sixty years
afterwards, they were, for the first time, heard of in Africa, they were
repudiated there also.
A rescript of Gratian in 378 empowered the bishop of Rome to judge
bishops with the assistance of six or seven other bishops or, in the
case of a metropolitan, of fifteen comprovincial bishops. A bishop
refusing to come to Rome was to be brought there by the civil power. The
rescript, however, was not incorporated in the Codes and perhaps was
only a temporary measure.
The tendency to give pre-eminence to Rome appears again in an imperial
letter to St Flavian, who, in the judgment of the East, was bishop of
Antioch, but who was rejected by the West and Egypt, summoning him to
Rome to be there judged by the bishops of the imperial city--a summons
which St Flavian did not obey (Tillemont, _Mem. Ecc._). In Africa in the
beginning of the 5th century Apiarius, a priest who had been deposed by
the bishop of Sicca for immorality, and whose deposition had been
affirmed by the "provincial synod," instead of further appealing to a
general synod of Africa, carried his appeal to Pope Zosimus. The pope
received the appeal, absolved him and restored him to the rank of
priest, and sent a bishop and two priests as legates to Africa with
instructions to them to hear the cause of Apiarius anew and for
execution of their sentence to crave the prefect's aid; moreover, they
were to summon the bishop of Sicca to Rome and to excommunicate him,
unless he should amend those things which the legates deemed wrong. The
upshot of a long conflict was that the papal claim to entertain appeals
from Africa by priests and deacons was rejected by the African bishops,
who in their final synodical epistle also repudiate in terms any right
of appeal by African _bishops_ to "parts beyond the seas" (see Hefele,
_Councils_, bk. viii.).
The story of the administrative development of the Church in the 5th
century is mainly the story of the final emergence and constitution of
the great "patriarchates," as authorities superior to metropolitans and
provincial synods. In consequence of the occupants of the thrones of
Constantinople and Alexandria falling successively into opposite
heresies, the question arose how "patriarchs" were to be judged. In both
cases, as it seems, an attempt was made by the bishop of Rome to depose
the erring patriarch by his authority as primate of Christendom, acting
in concert with a Western synod. In both cases, apparently, an
oecumenical synod ignored the Roman deposition and judged the alleged
offences of the respective patriarchs in first and last instance. The
third and fourth oecumenical synods (Ephesus, 431; Chalcedon, 451) were
primarily tribunals for the trials of Nestorius and Dioscorus; it was
secondarily that they became organs of the universal episcopate for the
definition of the faith, or legislative assemblies for the enactment of
canons. Nothing is more remarkable than their minute care as to
observance of rules of procedure. In both cases, imperial assessors were
appointed. At Ephesus the Count Candidian was commissioned to maintain
order, but took little part in the proceedings. At Chalcedon, on the
other hand, the imperial commissioners decided points of order, kept the
synod to the question, took the votes and adjourned the court. But the
synod alone judged and pronounced sentence. No oecumenical synod has
tried a patriarch of Old Rome while yet in the flesh. The fifth
oecumenical council came nearest to so doing, in the case of Vigilius.
That pope, although in Constantinople, refused to attend the sittings of
the council. He was cited three times, in the canonical manner, and upon
not appearing was threatened in the third session with anathema (Hefele,
_Councils_, sect. 268 _ad fin._). He was not, however, charged with
direct heresy, as were Nestorius and Dioscorus, and the synod seems to
have hesitated to deal stringently with the primate of Christendom. In
the seventh session it accepted the suggestion of Justinian, merely to
order the name of Vigilius to be removed from the liturgical prayers, at
the same time expressing its desire to maintain unity with the see of
Old Rome (Hefele, sect. 273). After the council, Justinian banished the
pope to Egypt, and afterwards to an island, until he accepted the
council, which he ultimately did (ib. 276). The sixth oecumenical synod
decreed that the dead pope Honorius should be "cast out from the holy
Catholic Church of God" and anathematized, a sentence approved by the
reigning pope Leo II. and affirmed by the seventh oecumenical synod in
787.
The constitution of the patriarchal system resulted in the recognition
of a certain right of appeal to Rome from the larger part of the West.
Britain remained outside that jurisdiction, the Celtic churches of the
British islands, after those islands were abandoned by the Empire,
pursuing a course of their own. In the East, Constantinople, from its
principality, acquired special administrative pre-eminence, naturally
followed, as in the case of "old Rome," by judicial pre-eminence. An
example of this is found in the ninth canon of Chalcedon, which also
illustrates the enforcement upon a clerical plaintiff in dispute with a
brother cleric of that recourse to the arbitration of their
ecclesiastical superior already mentioned. The canon provides that any
clerk having a complaint against another clerk must not pass by his own
bishop and turn to secular tribunals, but first lay bare his cause
before him, so that by the sentence of the bishop himself the dispute
may be settled by arbitrators acceptable to both parties. Any one acting
against these provisions shall be subject to canonical penalties. If any
clerk have a complaint against his own bishop, he shall have his cause
adjudicated upon by the synod of the province. But if a bishop or clerk
have a difference with the metropolitan of his province let him bring it
before the exarch of the "diocese" (i.e. the larger district answering
to the civil "diocese"), or before the royal see of Constantinople, who
shall do justice upon it. An "exarch" means properly a superior
metropolitan having several provinces under him. In the next century
Justinian (_Nov._ 123, c. 22) put the other patriarchates on the same
footing as Constantinople. In c. 21 he gives either plaintiff or
defendant an appeal within ten days to the secular judge of the locality
from the bishop's judgment. If there be no appeal, that judge is to give
execution to the episcopal award. The growth of a special "original"
jurisdiction at Constantinople, which perhaps developed earlier than
the corresponding institution at Rome, may be traced to the fact that
bishops from all parts were constantly in Constantinople. The bishop of
Constantinople, even before he became properly "patriarch," would often
assemble a synod from these visiting bishops, which acquired the
technical name of [Greek: synodos endemousa], the synod of sojourners.
This synod frequently decided questions belonging to other
patriarchates.
The criminal jurisdiction thus exercised was generally speaking
unlimited. It must be remembered that the _forum externum_ of the
ecclesiastical jurisdiction, in the sense in which we now use the
phrase, of a judge deciding causes, was not then clearly marked off from
the _forum internum_, or what afterwards came to be called the "tribunal
of penance" (see Van Espen, _Jus ecc. univ._ pars iii. tit. iv. c. 1).
Ecclesiastical proceedings by way of prosecution are called "criminal,"
but they are primarily _pro salute animae_; whereas temporal criminal
proceedings are primarily for the protection of the state and its
citizens. Hence a Christian might be first punished in the civil courts
and then put to public penance by the ecclesiastical jurisdiction, or
vice versa: an apparently double system of punishment which the medieval
Church, when the _forum externum_ had become quite separated from the
_forum internum_, sometimes repudiated (see Maitland, _English Canon
Law_, 138, 139, 144).
Theodosius began the system of giving secular authority to Church
tribunals. Thus, in 376, L. 23 _Cod. Theodos. de. Episcopis_, &c.,
subjected clerics for small offences pertaining to the observances of
religion to bishops and synods. In 399, L. 1 _Cod. de Religione_
provides that, when it is a matter of religion, it beseems the bishop to
judge. A rescript of Constantius, in 355, inserted in _Cod. Theod._
lxii. _de Epis. Ecc. et Cler._, excluded bishops from accusations before
secular judges and commanded such accusations to be speedily brought
before the tribunal of other bishops. This law was probably only
intended to be of a temporary character. Then comes the law of Gratian
already noticed. Then, in 399, a law of Honorius (_Cod. Theod._ L. 1 _de
Religione_): "As often as it concerns religion, it is meet that the
bishops should judge, but other causes which belong to ordinary
jurisdiction or to public law are to be heard in the ordinary courts
(_legibus oportet audiri_)." L. 3 _de Epis. Jud._, at the end of the
Theodosian Code, seems spurious (see the comment of Gothofredus in
loco). But a constitution of Honorius in 412 (_Cod. Theod._ L. xli. _de
Epis. Ecc. et Cler._) provides that clerks are not to be accused except
before the bishop. Bishops, priests, deacons, and every other "minister
of the Christian law" of inferior degree, are taken from secular
jurisdiction in criminal cases. The words are quite general; but it has
been contended that they apply only to crimes of an ecclesiastical
character (see Gothofredus in loc.; Van Espen, pars iii. tit. iii. c. 1,
10). In 425 a constitution of Theodosius II. provides that a recent
decree of the usurper John should be disregarded and that clerks whom he
had brought before secular judges should be reserved for the episcopal
jurisdictions, "since it is not lawful to subject the ministers of the
divine office to the arbitrament of temporal powers." Justinian has a
clearer perception of the demarcation between the spheres of spiritual
and temporal law. The 83rd Novell provides that if the offence be
ecclesiastical, needing ecclesiastical correction, the bishop shall take
cognizance of it. The 123rd Novell (c. 21) provides that if a clerk be
accused of a secular crime he shall be accused before his bishop, who
may depose him from his office and order, and then the competent judge
may take him and deal with him according to the laws. If the prosecutor
have first brought him before the civil judge, the evidence is to be
sent to the bishop, and the latter, if he thinks the crime has been
committed, may deprive him of his office and order, and the judge shall
apply to him the proper legal punishment. But if the bishop think the
evidence insufficient, the affair shall be referred to the emperor, by
way of appeal both from bishop and judge. If the cause be
ecclesiastical, the civil judges are to take no part in the inquiry. The
law includes with clerics, monks, deaconesses, nuns, ascetics; and the
word "clerics" covered persons in minor orders, down to doorkeepers. It
will be noticed that Justinian supposes that the prosecutor may begin
the proceedings before the civil judge. A constitution of Alexius
Comnenus I. seems to send him to the special forum of the accused.
Anglo-Saxon courts.
Certain enactments of later Saxon times in England have been sometimes
spoken of as though they united together the temporal and spiritual
jurisdictions into one mixed tribunal deriving its authority from the
State. In the latter part of the 10th century, laws of Edgar provided
that the bishop should be at the county court and also the alderman, and
that there each of them should put in use both God's laws and the
world's law (Johnson's _English Canons_, i. 411). This probably was, as
Johnson suggests, that the bishop might enforce secular laws by
ecclesiastical censure and the alderman ecclesiastical laws with secular
punishment. But the two jurisdictions were kept separate; for by another
law of Edgar (_Leges Edg._ c. v.) it was provided that "in the most
august assembly the bishop and alderman should be present, and the one
should interpret to the people the law of God, the other the laws of
men." Edgar, in a speech to St Dunstan and the bishops in synod (in
969), said, "I hold in my hands the sword of Constantine, you that of
Peter. Let us join right hands and unite sword to sword" (Hardouin,
_Conc._ tom. vi. p. 1, col. 675). The juxtaposition of the judicatures
may, however, have led to some confusion between them.
As to appeals the mixed council of Cliff at Hoo (747) said they should
go to the synod of the province. The only appeal to Rome in Saxon times
was that of St Wilfrid, bishop of York, who appealed from the division
of his see and his deposition for refusing to consent to it, and was
heard in a Roman synod under the presidency of Pope Agatho. The synod
found him unlawfully deposed and ordered his restoration. Upon his
return to England, the Roman judgment was refused recognition and he was
for a time imprisoned. Ten years later he was recalled to York, but
refusing to consent to the division of his see was again deposed and
again appealed to Rome. The appeal was heard at great length, in a synod
of 703 under John VI., deputies from the archbishop of Canterbury being
present. St Wilfrid was justified and was sent back to his see, with
papal letters to the kings of Northumbria and Mercia. The Roman decree
was again disregarded. At the council of "Nid" he was reconciled to the
other bishops of the province, but not restored. In the end he was
brought back to York, but not to the undivided see. The details of the
case will be found in Wilkins, _Concilia_, in Mansi, _Concilia_, under
the various councils named, and in Haddan & Stubbs, _Councils and Eccl.
Documents_, vol. iii.
Penalties inflicted by ecclesiastical courts.
The penalties which the spiritual court could inflict, in the period
between the edict of Milan and c. 854, were properly excommunication
whether generally or as exclusion from the sacraments for a term of
months or years or till the day of death and (in the case of clerics)
suspension or deposition. Gradually, however, doubtless by way of
commutation of excommunication and of penance, temporal penalties were
added, as scourging, banishment, seclusion in a monastery, fines. It is
difficult to say how far some of these temporal penalties were
penitential only or how far they could be inflicted _in invitos_. But
the secular arm, from the time of Nicaea I., was in the habit of aiding
spiritual decrees, as by banishing deposed bishops, and gradually by
other ways, even with laymen. Scourging (although it had been a
well-known punishment of the synagogue) was at first forbidden. Can. 28
(26) of the Apostolic Canons imposes deposition on any bishop, priest or
deacon striking the delinquent faithful. In Africa, however, a contrary
practice early sprang up (see St Augustine, _Epist._ clix. _ad Marcellum
al._ cxxxiii.). The small council of Vannes in Brittany in 465 made it
an alternative punishment for clerks convicted of drunkenness (Can. 13).
Canon 13 of the first council of Orleans, which has been cited in this
matter, seems to have no application. St Gregory the Great seems to
assume that scourging and seclusion in a monastery are in the discretion
of episcopal tribunals (see _Epistles_, lib. ii. ep. 11, 40, 42, 44, 45;
lib. vii. ep. 11, 67; lib. xii. ep. 31, c. 4). The 16th council of
Toledo (in 693) has been cited as if it visited certain very great
sinners with scourging as an ecclesiastical punishment. In fact, it only
approves the punishment as ordered by the Visigothic laws. An alleged
decree of a council of Autun in 670 is part of a code of discipline for
monasteries (see authorities cited by Hefele, _Councils_, sect. 290,
towards the end). Banishment does not seem to have been inflicted by the
spiritual court _in invitum_. Seclusion in a monastery seems first to
have been used by the civil power in aid of the spiritual. The fifth
canon of the council of Macon, in 584, forbids clergy to dress like
laymen and imposes a penalty of thirty days' imprisonment on bread and
water; but this may be merely penitential. There is little evidence of
the imposition of fines as ecclesiastical penalties; but there are
references to the practice in the epistles of St Gregory the Great,
notably in his instructions to St Augustine. Gregory III. copies from St
Gregory I. Probably these also were by way of penance. Isolated examples
in the early middle ages of metropolitans dealing with their suffragan
bishops by imprisonment in chains were extra-canonical abuses, connected
with the perversion of Church law which treated the metropolitan (who
originally was merely convener of the provincial synod and its
representative during the intervals of sessions) as the feudal "lord" of
his comprovincials.
With the later 9th century we enter upon a new epoch, and by the time of
Gregory VII., in the 11th century, the tribunals have fallen into the
hands of a regular class of canonists who are in fact professional
church-lawyers in orders. The changes due to the adoption of the False
Decretals by Nicholas I. and the application of their principles by
Hildebrand (afterwards Gregory VII.) are discussed in the article CANON
LAW. The later medieval system, thus inaugurated, may be considered (1)
in its hierarchy, (2) in the subject matter of its jurisdiction, (3) in
its penalties.
Later medieval system.
1. (a) It is a system of courts. Much that had been done by bishops,
_sine strepitu forensi et figura judicii_, is now done in the course of
regular judicial procedure. Again, the court takes the place of the
synod. The diocesan synod ceases to have judicial work. The court of the
metropolitan takes the place of the provincial synod, except possibly
for the trial of bishops, and even this becomes doubtful.
(b) At first the bishop was the only judge in the diocesan court and he
always remains a judge. But just as the king appoints judges to hear
_placita coram rege ipso_, and the feudal lord appoints his seneschal or
steward, so the bishop appoints his official.
(c) The archdeacon acquires a concurrent ordinary jurisdiction with the
bishop (see ARCHDEACON). For some time it was considered that he was a
mere office-holder dependent on the will of the bishop with a
jurisdiction merely "vicarial"; but by the 13th century it was settled
that he held a "benefice" and that his jurisdiction over causes was
ordinary and independent of the bishop (Van Espen, pars i. tit. xii. c.
1; Fournier, _Les Officialites au moyen age_, p. 134). It was partly in
order to counterpoise the power of archdeacons that bishops created
officials (Fournier, p. 8). Archdeacons in course of time created
officials who presided in court in their stead. The extent of
jurisdiction of archdeacons depended much upon local customs. In England
the custom was generally in their favour. Ordinarily, the appeal from an
archdeacon or his official lay to the court of the bishop; but by custom
the appeal might be to the court of the metropolitan: The Constitutions
of Clarendon, in 1164, made the appeal from the court of the archdeacon
lie to the court of the bishop.
(d) The official of the bishop might be his official principal, who was
his _alter ego_, or a special officer for a particular locality
(_officialis foraneus_). The latter was treated as a mere delegate, from
whom an appeal could be made to the bishop. The former had one
consistory with the bishop, so that appeals from him had to be made to
the court of the metropolitan. How far the official principal had
jurisdiction in criminal matters by virtue of his office, how far it was
usual to add this jurisdiction by special commission, and what were the
respective limits of his office and that of the vicar-general, are
questions of some nicety. The emphasis in Italy was on the vicar-general
(_Sext. de officio Vicarii_). In the Low Countries, France and England
the jurisdiction of the official principal was wider (Van Espen, pars
i. tit. xii. cc. 4, 5; Fournier, p. 21). But he could not try criminal
matters unless specially committed to him (Lyndwood, _Provinciale_, lib.
ii. tit. 1). Later in England it became usual to appoint one man to the
two offices and to call him chancellor, a word perhaps borrowed from
cathedral chapters, and not in use for a diocesan officer till the time
of Henry VIII. or later (see CHANCELLOR). In Ireland the title, till the
church was disestablished, was vicar-general.
The importance of distinguishing the normal functions of an official
principal and a vicar-general lies in this: that it was gradually
established that as a king should not hear causes but commit them to his
judges, so a bishop should not hear causes but appoint an official to
hear them (see Ridley, _View of the Civil and Eccl. Law_; Ayliffe,
_Parergon juris ecclesiastici_, p. 161; Godolphin, _Abridgement of the
Laws Ecclesiastical_, p. 8). The "parlements" of France were constantly
insisting on the independence and irremovability of the official
(Fournier, p. 219). But jurisdiction which was not necessarily incident
to the office of the official principal, that is to say voluntary
jurisdiction, such as the granting of licences and institution to
benefices, and criminal jurisdiction over clerks (and probably over
laymen), the bishop could reserve to himself. Reservations of this
nature are made in many English patents of chancellors and were held
good in _R._ v. _Tristram_, 1902, 1 K.B. 816.
(e) The ecclesiastical and temporal courts are kept distinct. The
charter of William the Conqueror abrogated the laws of Edgar. No bishop
or archdeacon "shall any longer hold pleas in the Hundred concerning
episcopal law nor draw a cause which concerns the rule of such to the
judgment of men of the world" (Stubbs, _Select Charters_, part iii.). In
France, where the bishop was a temporal baron, his feudal and his
spiritual courts were kept by distinct officers (Fournier, p. 2).
(f) From the bishop, or his official, appeal lay to the metropolitan,
who again could hear causes by his official. The Constitutions of
Clarendon recognize this appeal (c. viii.).
(g) An appeal lay from the court of the metropolitan to that of the
primate. There were many disputes as to the existence of these primates
(see Maitland, _Canon Law in the Church of England_, p. 121). In England
the dispute between Canterbury and York was settled by making them both
primates, giving Canterbury the further honour of being primate of all
England. In France the primatial sees and the course of appeals to them
were well established (Fournier, p. 219).
(h) Several attempts were made by metropolitans and their officials to
take causes arising in the dioceses of their comprovincials in the first
instance and not by way of appeal. The officials of primates in their
turn made similar attempts. After long struggles this was hindered, in
France by the bull _Romana_ (Fournier, p. 218), in England by the Bill
of Citations, 23 Henry VIII. c. 9, and Canon 94 of the Canons of 1603.
The preamble of the "Bill of Citations" is eloquent as to the mischief
which it is framed to prevent. There are, however, a few cases in which
the metropolitan is still allowed to cite in the first instance. One of
them was in cases of "perplexity." "Perplexity" arose where the
suffragans "could not owing to the geographical limitations of their
competence do full justice" (Maitland, pp. 118-119). Such was the case
of probate where notable goods of the deceased lay in more than one
diocese. Hence the origin of the "prerogative court" of Canterbury (cf.
Van Espen, pars i. tit. xix.; and for Spain, Covarruvias, _Pract.
Quaest._ c. 9).
(i) Gradually there grew up a mass of peculiar and exempt jurisdictions
(Ayliffe, pp. 417, 418; Phillimore, Eccl. Law, pp. 214, 927; de
Maillane, _Dict. du droit canonique_, s.v. "Exemptions"). Exempt
jurisdictions began with the monasteries and were matter of vehement
discussion in the later middle ages. There were no true exemptions
before the 11th century (Van Espen, pars iii. tit. xii.). Peculiar or
special jurisdiction, equal to that of the bishop, was given to deans
and chapters over the cathedral precincts and in places where they had
corporate property (see _Parham_ v. _Templer_, 3 Phil. Ecc. R. 22).
Sometimes it was given to deans alone or to prebendaries in the parishes
whence they derived their prebends. Where the archdeacon had a
jurisdiction co-ordinate with the bishop, it was called a peculiar. The
metropolitans had peculiars within the dioceses of their comprovincials
wherever they had residences or manors, and some whose origin is
uncertain, e.g. that of the fifteen parishes in the deanery of the
Arches. The official administering justice for the metropolitan was
usually called a dean. From a peculiar jurisdiction ranking as episcopal
the appeal lay to the court of the metropolitan. As to metropolitan
peculiars, the metropolitan might give an appeal from the dean to his
regular official principal. Thus, in Canterbury there was an appeal from
the dean of Arches to the official principal of the Arches court. When
peculiars were abolished (_vide infra_) the dean of Arches disappeared,
and his title, in the 19th century, was erroneously given to the
official principal. On peculiars in Spain cf. Covarruvias, _Works_, tit.
i. p. 410. The French parlements, after the middle ages, discouraged
them. In exempt convents the head of the monastery or priory exercised
jurisdiction subject to an appeal to the pope.
(j) It is said that originally a metropolitan had only one official
principal, who, like the metropolitan himself, acted both for the
diocese and province. Fournier (p. 219) says that in France it was not
till the 17th century that there grew up a custom of having different
officials for the metropolitan, one for him as bishop, a second as
metropolitan, and even a third as primate, with an appeal from one to
the other, and that it was an abuse due to the parlements which strove
to make the official independent of the bishop. In England there has
been, for a long time, a separate diocesan court of Canterbury held
before the "commissary." The word is significant as showing that there
was something special and restricted about the position. In York there
are two courts, one called the consistory for the diocese, the other
called the chancery for the province. But the same person was often
official of both courts.
(k) In England the Constitutions of Clarendon added a provision for
appeal to the king, "and if the archbishop shall have failed in doing
justice recourse is to be had in the last resort (_postremo_) to our
lord the king, that by his writ the controversy may be ended in the
court of the archbishop; because there must be no further process
without the assent of our lord the king." The last words were an attempt
to limit further appeal to Rome. It will be observed that the king does
not hear the cause or adjudicate upon it. He merely corrects slackness
or lack of doing justice (_Si archiepiscopus defecerit in justitia
exhibenda_) and by his writ (_precepto_) directs the controversy to be
determined in the metropolitan's court. As bishop Stubbs says (_Report
of Eccl. Comm._ vol. i. _Hist. App._ i.): "The appeal to the king is
merely a provision for a rehearing before the archbishop, such failure
to do justice being not so much applicable to an unfair decision as to
the delays or refusal to proceed common at that time" (cf. Joyce, _The
Sword and the Keys_, 2nd ed. pp. 19-20). The _recursus ad principem_, in
some form or other of appeal or application to the sovereign or his lay
judges, was at the end of the middle ages well known over western
Europe. This recourse in England sometimes took the form of the appeal
to the king given by the Constitutions of Clarendon, just mentioned, and
later by the acts of Henry VIII.; sometimes that of suing for writs of
_prohibition_ or _mandamus_, which were granted by the king's judges,
either to restrain excess of jurisdiction, or to compel the spiritual
judge to exercise jurisdiction in cases where it seemed to the temporal
court that he was failing in his duty. The _appellatio tanquam ab abusu_
(_appel comme d'abus_) in France was an application of a like nature.
Such an appeal lay even in cases where there was a refusal to exercise
voluntary jurisdiction (de Maillane, _Dictionnaire du droit canonique_,
tit. "Abus," cf. tit. "Appel"). This writer traces their origin to the
14th century; but the procedure does not seem to have become regularized
or common till the reigns of Louis XII. or Francis I. (cf. _Dict.
eccl._, Paris, 1765, titt. "Abus" and "Appel comme d'abus"). On the
_recursus ad principem_ and the practice of "cassation" in Belgium,
Germany and Spain, cf. Van Espen's treatise under this title (_Works_,
vol. iv.) and _Jus eccles. univ._ pars iii. tit. x. c. 4. Louis XIV.
forbad the parlements to give judgment themselves in causes upon an
_appel comme d'abus_. They had to declare the proceedings null and
abusive and command the court Christian to render right judgment (Edict
of 1695, arts. 34, 36, cited in Gaudry, _Traite de la legislation des
cultes_, Paris, 1854, tom. i. pp. 368, 369).
In Catalonia "Pragmatics," letters from the prince, issued to restrain
jurisdiction assumed by ecclesiastical judges contrary to the customs of
the principality. Thus in 1368 Peter III. evoked to the royal court a
prosecution for abduction pending before the archbishop of Tarragona,
declaring that the archbishop and the official were incompetent to judge
noblemen. See this and other instances collected in _Usages y demas
derechos de Cataluna_, by Vives y Cebria (Barcelona, 1835), tom. iv. p.
137 et seq.
(l) Lastly there was the appeal to the patriarchs, i.e. in the West to
Rome. The distinguishing feature of this appeal was that the rule of the
other appeals did not apply to it. In the regular course of those
appeals an appellant could not leap the intermediate stages; but he
could at any stage go to this final appeal, _omisso medio_, as it was
technically called (see _de appell. c. Dilect._ iii. for general rule,
and c. 3 _de appell._ in 6 for different rule in case of the pope, and
authorities cited in Van Espen, pars iii, tit. x. c. 2, 5). Van Espen
says: "The whole right of appeal to the Roman pontiff _omisso medio_ had
undoubtedly its origin in this principle, that the Roman pontiff is
ordinary of ordinaries, or, in other words, has immediate episcopal
authority in all particular churches, and this principle had its own
beginning from the False Decretals."
Appeals to Rome lay from interlocutory as well as final judgments.
Causes could even be evoked to Rome before any judgment and there heard
in first instance (Van Espen, pars iii. tit. x. c. 1, 8).
There was an alleged original jurisdiction of the pope, which he
exercised sometimes by permanent legates, whom Gregory VII. and his
successors established in the chief countries of Europe, and to whom
were committed the legislative executive and judicial powers of the
spiritual "prince" in the districts assigned to them. These Clement IV.
likened to "pro-consuls" and declared to have "ordinary" jurisdiction;
because they had jurisdiction over every kind of cause, without any
special delegation, in a certain defined area or province (c. ii. _de
Officio Legati_ in 6). They were expressed to have not merely appellate
but original jurisdiction over causes (iii. c. i. _de Officio Legati_).
The occupants of certain sees by a kind of prescription became legates
without special appointment, _legati nati_, as in the case of
Canterbury. In the 13th century Archbishop Peckham, says Maitland (p.
117), as archbishop "asserted for himself and his official (1) a general
right to entertain in the first instance complaints made against his
suffragans' subjects, and (2) a general right to hear appeals _omisso
medio_." It was, for the time, determined that the archbishop might
himself, in virtue of his legatine authority, entertain complaints from
other dioceses in first instance, but that this legatine jurisdiction
was not included in the ordinary jurisdiction of his official principal,
even if the archbishop had so willed it in his commission. In fact,
however, the official did before the end of the later medieval period
get the same power as the archbishop (Maitland, pp. 118-120; cf.
Lyndwood, lib. v. tit. 1), till it was taken from him by the Bill of
Citations.
After legates came special delegates appointed by the pope to hear a
particular cause. It was the general practice to appoint two or three to
sit together (Van Espen, pars iii. tit. v. c. 2, 37). These might
sub-delegate the whole cause or any part of it as they pleased, ibid.
9-18. Dr Maitland (essay on "The Universal Ordinary") thinks, but
without very much foundation, that great numbers especially of the more
important causes were tried before these delegates; although the records
have largely perished, since they were the records of courts which were
dissolved as soon as their single cause had been decided. These courts
were convenient, since it was the custom to appoint delegates resident
in the neighbourhood, and the power of sub-delegation, general or
limited, simplified questions of distance. In Belgium causes appealed
to Rome had to be committed to local delegates (Van Espen, pars iii.
tit. v. c. 3, tit. x. c. 2).
There could be an appeal from these delegates to the pope and from the
pope himself to the pope "better informed" (Van Espen, pars iii. tit. x.
c. 2, 12, 13). So personal had the system of jurisdiction become that
even the trials of bishops ceased to be necessarily conciliar. Generally
they were reserved to the pope (Van Espen, pars iii. tit. iii. c. 5,
17-19); but in England the archbishop, either in synod, or with some of
his comprovincial bishops concurring, tried and deposed bishops (see
case of Bishop Peacock and the other cases cited in _Read_ v. _Bishop of
Lincoln_, 14 P.D. 148, and Phillimore, _Eccl. Law_, pp. 66 et seq.).
(m) The jurisdiction of a bishop _sede vacante_ passed, by general law,
to the dean and chapter; but in England the metropolitans became
"guardians" of the spiritualities and exercised original jurisdiction
through the vacant diocese (Phillimore, pp. 62-63), except in the case
of Durham, and with a peculiar arrangement as to Lincoln.
If the metropolitan see were vacant the jurisdiction was exercised by
the dean and chapter through an official (Rothery, _Return of Cases
before Delegates_, Nos. 4, 5). As to France see Fournier, p. 294.
(n) Officials, even of bishops and metropolitans, need not be in holy
orders, though Bishop Stubbs in his paper in the _Report of the
Commission on Ecclesiastical Courts_ seems to say so. They had to be
clerics, that is, to have received the tonsure. Even papal delegates
might be simple clerks (Van Espen, pars iii. tit. v. c. 2, 20).
It came, however, to be the practice to impose some restrictions, as on
clerks twice married. Thus Archbishop Chichele provided that no clerk
married or bigamous (that is, having had two wives in succession) should
exercise spiritual jurisdiction (see Lyndwood, lib. iii. tit. 3). Abroad
unsuccessful attempts were made by local councils to enact that
officials and vicars-general should be in holy orders (Hefele on
Councils of Tortosa in 1429 and Sixth of Milan in 1582). These councils,
as will be seen, are late.
(o) With or without the concurrence and goodwill of the national Church,
restrictions were imposed by the State on the papal jurisdiction,
whether original or appellate. In England the Constitutions of Clarendon
(by chap. viii.) prohibited appeals to the pope; but after the murder of
St Thomas of Canterbury Henry II. had to promise not to enforce them.
The statutes 38 Edw. III. st. 2, 13 Rich. II. st. 2, c. 2, and 16 Rich.
II. c. 5 forbid such appeals; but it is suggested that notwithstanding
the generality of their language they refer only to cases of temporal
cognizance. Cases upon the execution of these statutes are collected in
Stillingfleet, _On Ecclesiastical Jurisdiction_, p. 189; Gibson,
_Codex_, 83. Obstacles were placed in the way of appeals to the pope
_omisso medio_. Thus when a writ of _significavit_ issued on the mandate
of a bishop, an appeal to Rome availed not to stay execution; but if
there were an appeal to the archbishop it was otherwise. It therefore
became the custom to lodge a double appeal: one to the archbishop "for
defence," and the other to the pope as the real appeal ("Hostiensis,"
_Super Decret._ ii. fol. 169; cf. Owen, _Institutes of Canon Law_, 1884,
pt. i. c. 19, 5).
There seems to have been no machinery for assisting the original or
appellate jurisdiction of the pope by secular process,--by
_significavit_ or otherwise.
The matrimonial cause between Henry VIII. and Catharine of Aragon was
the most famous English cause tried by delegates under the "original"
jurisdiction of the pope, and was ultimately "evoked" to Rome. The
foreseen adverse termination of this long-drawn cause led to Henry's
legislation.
When the temporal courts interfered to prevent excess of jurisdiction,
they did so by prohibiting the ecclesiastical court from trying and the
suitor from suing in that court. The pope could not be effectively
prohibited, and no instance is recorded of a prohibition to papal
delegates. But suitors have been prohibited from appealing to the pope
(see per Willes, J., in _Mayor of London_ v. _Cox_, L.R. 2 H.L. 280).
Whatever may have been the law, it is certain that, notwithstanding the
statutes of Edw. III. and Rich. II., appeals to Rome and original trials
by papal delegates did go on, perhaps with the king's licence; for the
statute 24 Hen. VIII. c. 12 recites that the hearing of appeals was an
usurpation by the pope and a grievous abuse, and proceeds to take away
the appeal in matrimonial, testamentary and tithe causes, and to hinder
by forbidding citation and process from Rome, all original hearings
also. The statute 25 Hen. VIII. c. 19 follows this up by taking away
appeals in all other subjects of ecclesiastical jurisdiction.
In 1438 the council of Basel took away all papal original jurisdiction
(save in certain reserved cases--of which _infra_), evocation of causes
to Rome, appeals to Rome _omisso medio_, and appeals to Rome altogether
in many causes. Such appeals when permissible, except the "greater,"
were to be tried by delegates on the spot (31st Session; Mansi,
_Concilia, in loco_). These proceedings at Basel were regarded at Rome
as of no effect. Nevertheless this decree and others were adopted by a
French national council at Bourges and promulgated by the king as a
"Pragmatic Sanction" (Migne, _Dict. du droit canonique_, "Pragmatique
Sanction"). The parlements registered the Sanction and the effect was
permanent in France. Louis XI. and Charles VIII. sought to revoke it;
but both parlements and states-general refused to recognize the revoking
decrees. In 1499 Louis XII. ordered the Pragmatic to be inviolably
observed. The parlements thereupon condemned several private persons for
obtaining bulls from Rome. In 1516 a Concordat between Leo X. and
Francis I. settled all these questions in the sense of the Pragmatic,
substantially according to the Basel canon. All causes, except the
"greater," were to be terminated in the country where the proper
cognizance would lie (Migne, op. cit. "Concordat"). By this Concordat,
by an ordinance of Francis I. in 1539, by two or three other royal
edicts, and (above all) by the practice of the parlements, explanatory
of this legislation, and their _arrets_, the conflict of secular and
ecclesiastical jurisdictions was settled until the Revolution (Migne,
_ubi sup._). "Greater causes" came in France to be restricted to
criminal prosecutions of bishops. Even in these the original
jurisdiction of the pope was taken away. In first instance they were
tried by the provincial synod. Thence there was appeal to the pope (de
Maillane, op. cit. s.v. "Causes majeures"; _Dict. eccl._, Paris, 1765,
s.v. "Cause"). The only original jurisdiction left to the pope was in
the case of the matrimonial causes of princes. But they could only be
heard on the spot by judges delegate. Examples are the causes of Louis
XII. and Jeanne of France in 1498, and of Henry IV. and Marguerite of
Valois in 1599 (Migne, op. cit. s.v. "Causes"). The prohibition of papal
interference was enforced if necessary by the _appel comme d'abus_
(_vide supra_). Out of respect for the pope this appeal was not brought
against his decrees but against their execution (_Dict. eccl._, Paris,
1765, s.v. "Abus").
Spain appears to have permitted and recognized appeals to the pope. A
royal writ of the 16th century cited by Covarruvias (c. xxxv.) prohibits
execution of the sentence of a Spanish court Christian pending an appeal
to the pope.
Civil jurisdiction.
2. The subject matter over which the ecclesiastical courts had
jurisdiction was no longer purely "criminal" with a civil
quasi-jurisdiction by way of arbitration. In the later middle ages these
courts had jurisdiction over most questions, except indeed the then most
important ones, those relating to real property. This civil jurisdiction
was sometimes concurrent with that of the secular courts, sometimes
exclusive. For England it may be thus classified:--
(a) _Matrimonial._--This arose naturally from the sacred character of
Christian marriage. This jurisdiction was exclusive. From it followed
the right of the courts Christian to pronounce upon questions of
legitimacy. Upon this right an inroad was early made, in consequence of
the question of legitimation by subsequent marriage. In the 12th century
the Church's rule, that subsequent marriage did legitimize previous
issue, was settled (c. 6, x. 4, 17). The king's judges then began to ask
the ordinary the specific question whether A. B. was born before or
after his parents' marriage. After the inconclusive proceedings at the
realm-council of Merton (1236), when spiritual and temporal lords took
opposite views, the king's judges went a step further and thenceforward
submitted this particular question to a jury. All other questions of
legitimacy arising in the king's courts were still sent for trial to the
bishop and concluded by his certificate (see Pollock and Maitland,
_Hist. Eng. Law before Edward I._ vol. i. 105-106; Maitland, _ubi
supra_, pp. 53-56).
(b) _Testamentary and in regard to succession from intestates._--Real
property was not the subject of will or testament in the medieval
period. But as to personal property, the jurisdiction of the courts
Christian became exclusive in England. The Church, East and West, had
long asserted a right to supervise those legacies which were devoted to
pious uses, a right recognized by Justinian (_Cod._ i. 3. 46). The
bishop or, failing him, the metropolitan, was to see such legacies
properly paid and applied and might appoint persons to administer the
funds (Pollock and Maitland, op. cit. ii. 330). This right and duty
became a jurisdiction in all testamentary causes. Intestacy was regarded
with the greatest horror, because of the danger to the intestate's soul
from a death without a fitting part given to pious uses (Maine, _Ancient
Law_, ed. 1906, note by Pollock, p. 230; cf. Pollock and Maitland, op.
cit. ii. 354). Hence came the jurisdiction of the ordinary in intestacy,
for the peace of the soul of the departed. This head of ecclesiastical
jurisdiction was in England not transferred to the secular court till
1857.
(c) _Church Lands._--If undoubtedly held in _frankalmoign_ or "free
alms," by a "spiritual" tenure only, the claim of jurisdiction for the
ecclesiastical _forum_ seems to have been at first conceded. But the
Constitutions of Clarendon (c. 9) reserved the preliminary question, of
"frankalmoign" or not, for a jury in the king's court. Then, if the
tenure were found free alms, the plea was to be heard in the court
Christian. From the 13th century, however, inclusive, the king's courts
insisted on their exclusive jurisdiction in regard to all realty,
temporal or "spiritual" (Pollock and Maitland, op. cit. i. 106).
(d) _Title to present to and possession of benefices._--As to the title
to present to benefices, the courts Christian at one time had concurrent
jurisdiction with the temporal courts. "Advowsons" were, however, looked
upon as a species of "real" property in England, and therefore the
king's court early claimed exclusive jurisdiction in disputes where the
title to present was involved. The Constitutions of Clarendon provided
that these causes should be heard only in the king's court (c. 1). This
rule was applied even where both litigants were "spiritual." In the 13th
century abbots sue each other in the royal court for advowsons (Selden
Soc. _Select Civil Pleas_, i. pl. 245). In 1231, in such a suit, the
bishop of London accepts wager of battle (Pollock and Maitland, op. cit.
i. 105). In cases, however, where the title to present was not in
question, but the fitness of the clerk presented, or, in cases of
election to benefices, the validity of the election, there was
jurisdiction in the courts Christian.
(e) _The recovery of tithes and church dues,_ including in England
church rates levied to repair or improve churches and churchyards.
(f) Questions concerning _fabrics, ornaments, ritual and ceremonial_ of
churches.
(g) _Administration of pious gifts and revenues given to prelates or
convents._--Their right application could be effectively enforced only
in the courts Christian; until the rise in England of the equitable
jurisdiction of the court of chancery and the development of the
doctrine of "uses" at the end of the middle ages.
(h) _Enforcement of contractual promises made by oath or pledge of
faith._--The breaking of such a promissory oath was called "perjury" (as
in classical Latin and in Shakespeare), contrary to modern usage which
confines the word to false evidence before a court of justice. In regard
to the execution of these promises, the jurisdiction of the
ecclesiastical courts was possibly traversed by c. 15 of the
Constitutions of Clarendon; but allowed by the statute 13 Edw. I. st. 4.
As just intimated, besides the enforcement of the promise, the
"perjury" was treated as an ecclesiastical crime.
The _criminal jurisdiction of courts Christian over laymen_ included,
besides these "perjuries," (a) all _sexual offences_ not punishable on
indictment; (b) _Defamation of character_ (the king's courts came in
time to limit this to such defamation as could not be made the subject
of a temporal action); (c) _Offences by laymen against clerks_ (i.e.
against all "tonsured" persons, supra); (d) _Offences in regard to holy
places_--"brawling" and such like; (e) _Heresy, schism, apostasy,
witchcraft_.
In regard to "clerks," there was (1) all the criminal jurisdiction which
existed over laymen, and (2) criminal jurisdiction in regard to
professional misconduct. Concerning "felonious" clerks the great
questions discussed were whether the courts Christian had exclusive
jurisdiction or the king's court, or whether there was a concurrent
jurisdiction. The subject was dealt with in the Constitutions of
Clarendon, formally revoked after the murder of St Thomas of Canterbury.
In the 13th century it was recognized that a "clerk" for felony was
subject only to ecclesiastical trial and punishment; punishment which
might involve lifelong imprisonment. For "misdemeanours," as yet
unimportant, he had no exemption from secular jurisdiction (Pollock and
Maitland, op. cit. ch. iv.). At some indeterminate later period, the
"clerk" was tried for felony by a jury in the king's court and then
"pleaded his clergy," after conviction there, and was remitted to the
ordinary for ecclesiastical punishment. "Clerks" for the purpose of
"benefit of clergy" included not only persons in minor orders, but all
"religious" persons, i.e. monks, friars, nuns, &c. Later the custom
arose of taking "clerk" to include any "literate," even if not in orders
or "religious" (cf. Stephen, _Hist. Crim. Law_, i. 461). The statute 4
Hen. VII. c. 13 took away benefit of clergy, if claimed a second time,
from persons not "within orders," in certain bad cases. 4 Hen. VIII. c.
2 (a temporary act) took away "clergy," in certain heinous crimes, from
all persons not in "holy" orders. This statute was partly renewed by 22
Hen. VIII. c. 13. Other changes were introduced by 23 Hen. VIII. c. 1
and later acts. In time, "benefit of clergy" became entirely diverted
from its original objects.
In _France_, till 1329, there seems to have been no clear line of
demarcation between secular and ecclesiastical jurisdictions. Beaumanoir
(_Coutume de Baulvoisis_, ch. xi., cited Gaudry, op. cit. i. 22) had
laid down the principle that spiritual justice should meddle only with
spiritual things. In the year named the secular courts complained to the
king, Philip of Valois, of the encroachments of the courts Christian.
The "cause" was solemnly argued before that monarch, who decided to
leave things as they were (Migne, _Dict. du droit canon._, s.v.
"Officialites"). In 1371 Charles V. forbade spiritual courts to take
cognizance of "real" and "possessory" actions even in regard to clerks
(Migne, loc. cit.; cf. Gaudry, _ubi sup._). From this period the
parlements began the procedure which, after the Pragmatic Sanction of
Charles VII., in 1438 took regular shape as the _appel comme d' abus_
(_supra_; Migne, loc. cit.). Testamentary causes at first were subject
to the concurrent jurisdiction of the spiritual and secular courts.
After the 14th century, the latter had exclusive jurisdiction (Van
Espen, op. cit. lib. iii. tit. ii. cc. 2, 15, 16). In regard to
_marriage_ the secular jurists distinguished between the civil contract
and the sacrament, for purposes of separating the jurisdiction (_Dict.
eccl._, Paris, 1765, s.v. "Mariage"). The voluntary jurisdiction as
regards dispensations was kept for the Church. The contentious
jurisdiction of the courts Christian was confined to promises of
marriage, nullity of marriage caused by "diriment" impediments only,
validity or invalidity of the sacrament, divorce _a thoro_ (ibid.).
Questions in regard to the _property in a benefice_ were for the courts
Christian; in regard to its _possession_, for the king's courts. But if
a "possessory" action had been brought in the latter, a subsequent suit
in the courts spiritual for the property was deemed "abusive" and
restrained (ib., s.v. "Petitoire") _Breach of faith or of promise
confirmed by oath_ was matter for the court Christian (Fournier, pp. 95,
99, 109, 125). This branch of jurisdiction was larger and more freely
used than in England (cf. Pollock and Maitland, op. cit., as to
Normandy). The only other remaining civil jurisdiction of the
ecclesiastical courts was in _personal actions where clerks were
defendants_ (Migne, op. cit., s.v. "Officialites," Fournier, pp.
65-125); or, after the 14th century, where both parties were clerks. In
regard to crimes delicts (_delits_) were divided into classes for
purposes of jurisdiction. Clerks were punishable only in the court
Christian, except in cases of grave crimes such as murder, mutilation
(Fournier, p. 72), and cases called "royal cases" (_vide infra_). Laymen
were punishable in the court Christian for the _delits_ following:
injury to sacred or religious places, sacrilege, heresy (except where it
was a "royal case"), sorcery, magic, blasphemy (also punishable in the
secular court), adultery, simony, usury and infractions of the truce of
God (Fournier, pp. 90-93). What were called "privileged delicts" were
judged in the case of the clergy conjointly by the spiritual judge and
the king's judge. Bishops had no exemption (_Dict. ecc._, s.v. "Delits,"
"Cas privilegie," "Causes majeures"). "Royal cases" included such crimes
as touched the prince, as all forms of treason; or the dignity of his
officers; or the public safety. In this class were also included such
heresies as troubled the state, as by forbidden assemblies, or by
teaching prohibited doctrine. Among these heresies were reckoned
idolatry, atheism, Protestantism, relapse (_ib. et_ "Cas royaux,"
"Heresie"). These were of exclusive royal jurisdiction as against both
spiritual courts and the courts of feudal lords. A similar claim was
made by Pombal for Portugal (_vide infra_).
The parlements, in order to have a ready means of enforcing all these
restrictions by _appel comme d'abus_, compelled the bishops to appoint
officials, Frenchmen, graduates, and (as it seems) "seculars" (_Dict.
eccl._, Paris, 1765, s.v. "Official"). This last qualification was
disputed (see Fevret, _Traite de l'abus_).
3. _Punishments._--Ecclesiastical sanctions were divided into
_punishments_ (_poenae_), either purely temporal in character or else of
a mixed spiritual and temporal character, and _censures_ (_censurae_),
purely spiritual and remedial (see Van Espen, pars iii. tit. xl. cc. 1,
3; Phillimore, _Ecclesiastical Law_, p. 1064). In the book last cited
_censurae_ and _poenae_ are classed together as "censures" (which is the
modern use).
_Poenae._--(a) Fines sprang from the older custom of directing alms by
way of penance in the internal forum (Van Espen, _ubi sup._ c. 1, 5-10).
They were to be applied to pious uses. (b) _Reclusion in a monastery_
continued from former period, and might be either temporary or perpetual
(loc. cit. 17-19). (c) _Imprisonment_, in the bishop's prison, might be
in chains, or on bread and water, and temporary or perpetual. In its
severer forms it was only inflicted for more atrocious crimes which the
secular law would have punished with death (loc. cit. 21-27). The act 23
Henry VIII. c. 11 made special provision for convicted clerks who broke
out of the prisons of the ordinary. (d) _Fustigation_, as in former
period, was hardly an ecclesiastical punishment. If given, it was to be
of a paternal character (loc. cit. 39-45). Punishments of a mixed nature
were: (e) _Suspension_ either from office alone or from office and
benefice; (f) _Deprivation_ of benefice; (g) _Deposition_ or
_Degradation_ (a more solemn and ceremonial form) from the ministry; (h)
_Irregularity_--not always a punishment--a state of incapacity to be
ordained, or, being ordained, to execute the ministry; this might result
from some defect of mind and body, but was also incurred by some grave
offences.
_Censures_ were as follows: (i) _Suspension_ from attending divine
offices or _ab ingressu ecclesiae_, more appropriate for a layman. A
clerk in like case might be suspended from office. (j) _Interdict_ was
another form of partial or total suspension from the benefit of the
rites and sacraments of the Church. An interdict might be personal or
local (see INTERDICT). (k) _Excommunication_ was either greater or less.
The greater separated entirely from the Church. It might be pronounced
under anathema. The less deprived of participation in the sacraments,
and made a clerk incapable of taking a benefice.
On the European continent the courts Christian often carried out their
decrees by their own apparitors who could levy pecuniary penalties on a
defendant's goods (Van Espen, pars iii. tit. ix. c. 4). They could
arrest and imprison. In England, except in the peculiar case of
imprisonment pending trial for heresy, or in the case of a clerk
convicted of crime, these things could not be. The sentence of the court
Christian had in all other cases to be enforced by the secular arm.
Early in Henry II.'s time it had become the custom of England for the
court Christian to "signify" its sentence of excommunication to the king
and to demand from him a writ of _significavit_ to the sheriff, to
imprison the person excommunicated. The writ apparently issued for no
court inferior to the bishop's, unless upon the bishop's request. In
some sense the king's writ of _significavit_ was discretionary; but its
issue could be enforced by excommunication or interdict.
In the cases of heresy, apostasy and sorcery, the spiritual courts
sought the aid of the secular jurisdiction to superadd the punishment of
death. Incorrigible offenders on these matters were "left" to the
secular power, to be corrected with due "animadversion." This provision
of the fourth Lateran Council in 1215 was always interpreted to mean
death (see Van Espen, _Observ. in Conc. Lat. IV. Canones_, and the
decree in the _Sext. ut inquisitionis negotium_; and, as to English law
and practice, Maitland, op. cit., Essay vi., and pp. 161, 176; 2 Hen.
IV. c. 15; Fitzherbert, _Natura brevium_, 269; 2 Hen. V. st. 1, c. 7).
The "capital" punishment was generally (always in England) by burning.
Burning was an English punishment for some secular offences.
The Concordat with Francis I. by which the pope gave up the right of
hearing appeals from France was not many years before the legislation of
Henry VIII. in England. Both monarchs proceeded on the same lines; but
Francis I. got the pope's consent: Henry VIII. acted _in invitum_, and
in time went rather further.
Ecclesiastical jurisdiction in England.
The Statute of Appeals (24 Hen. VIII. c. 12) takes away appeals to Rome
in causes testamentary and matrimonial and in regard to right of tithes,
oblations and obventions. A final appeal is given to the archbishop of
the particular province; but in causes touching the king a final appeal
is given to the Upper House of Convocation of the province. The statute
is aimed at appeals; but the words used in it concerning "citations and
all other processes" are wide enough to take away also the "original"
jurisdiction of the pope. No appeal was yet given to the crown.
Canterbury, York, Armagh, Dublin, Cashel and Tuam are put in the place
of Rome. The English and Irish provinces are treated as self-contained.
All ends there.
The "Act of Submission of the Clergy" (25 Hen. VIII. c. 19) took away
_all_ appeals to Rome and gave a further appeal, "for lack of justice,"
from the several courts of the archbishops to the king in chancery.
Thence a commission was to issue to persons named therein to determine
the appeal definitely. This was copied from the then existent practice
in admiralty appeals and was the origin of the so-called court of
delegates. It is a moot question whether this statute took away the
appeal to the Upper Houses of the various convocations in causes wherein
the king was concerned (see _Gorham_ v. _Bishop of Exeter_, 15 Q.B. 52;
_Ex parte Bishop of Exeter_, 10 C.B. 102; _Re Gorham_ v. _Bishop of
Exeter_, 5 Exch. 630). 37 Hen. VIII. c. 17 provided that married laymen
might be judges of the courts Christian if they were doctors of civil
law, created in any university. This qualification even was considered
unnecessary in Charles I.'s time (_Cro. Car._ 258). Canon 127 of 1603
provided that the judges must be learned in the civil and ecclesiastical
laws and at least masters of arts or bachelors of laws. Canon Law as a
study had been practically prohibited at the universities since 1536
(Merriman, _Thomas Cromwell_, i. 142-143; _Cal. State Papers_, vol. ix.
p. xxix. 117; Owen, _Institutes of Canon Law_, viii.). The substitution
of "civilians," rather than common lawyers, for canonists (civilians,
hitherto, not an important body in England) had important consequences
(see Maitland, op. cit. 92 et seq.).
Henry VIII. had exercised his jurisdiction as Supreme Head through a
vicar-general. Edward VI. exercised original jurisdiction in spiritual
causes by delegated commissions (see Archdeacon Hale, _Precedents in
Criminal Cases_, p. xlviii.). Unless the king was to be regarded as an
ecclesiastical person, they were not properly ecclesiastical courts;
although spiritual persons might sit in them, for they sat only as royal
commissioners. The same point has been taken by large bodies of clergy
and laity in regard to the court of final appeal created by 25 Hen.
VIII. c. 19 and its present successor the judicial committee of Privy
Council (_infra: Rep. Com. Ecc. Discipline_, pp. 9, 94 et seq.). At any
rate the "original" jurisdiction claimed for the monarch personally and
his delegates, under Henry VIII. and Edward VI., has not permanently
remained. In theory, Hooker's contentions have been conceded that "kings
cannot in their own proper persons decide questions about matters of
faith and Christian religion" and that "they have not ordinary spiritual
power" (_Ecc. Pol._ vii. 8, 1, 6; cf. _XXXIX. Articles_, Art. 37).
Under Henry VIII. a system began of making certain crimes, which
previously had been only of spiritual cognizance, felonies (25 Hen.
VIII. c. 6), excluding thereby spiritual jurisdiction (Stephen, _Hist.
Crim. Law_, ii. 429). Bigamy (in its modern sense) was thus made felony
(1 Jac. I. c. 11). In this reign and the next, temporal courts were
sometimes given jurisdiction over purely spiritual offences. A trace of
this remains in 1 Edw. VI. c. 1 (still on the statute book; Stephen,
_Hist. Crim. Law_, ii. 439). Other traces occur in the Acts of
Uniformity, which make offences of depraving the Book of Common Prayer
triable at Assizes (between 23 Eliz. c. 1 and 7 & 8 Vict. c. 102--also
at Sessions) as well as in the courts Christian.
During Edward VI.'s time the courts Christian seem practically to have
ceased to exercise criminal jurisdiction (Hale, _Precedents in Criminal
Cases_, p. xlix.). But they sat again for this purpose under Mary and
Elizabeth and (save between 1640 and 1661) continued regular criminal
sessions till towards the end of the 17th century as continuously and
constantly as the king's courts (op. cit.).
The "ordinary" ecclesiastical tribunals of the later middle ages still
subsist in England, at least as regards the laity. This is hardly the
case elsewhere in the Western Church, though some exceptions are noted
below. Nevertheless, their exercise of criminal jurisdiction over the
laity is now in practice suspended; although in law it subsists (see
Stephen, _Hist. Crim. Law_; _Ray_ v. _Sherwood_, 1 Curt. R. 193; 1 Moore
P.C.R. 363; the observations of Kelly, C.B., in _Mordaunt_ v.
_Moncrieffe_, L.R. 2 Sc. & Div. 381, and of Lord Coleridge in _Martin_
v. _Mackonochie_, L.R. 4 Q.B.D. 770, and, on the other hand, of Lord
Penzance in _Phillimore_ v. _Machon_, L.R. 1 P.D. 480). Theoretically
still, in cases of sexual immorality, penance may be imposed. Monitions
to amend may be decreed and be enforced by _significavit_ and writ _de
contumace capiendo_, or by excommunication with imprisonment not to
exceed six months (53 Geo. III. c. 127). The tribunals thus subsisting
are the courts of the bishop and archbishop, the latter sometimes called
the court of appeal of the province. Peculiar jurisdictions have been
gradually taken away under the operation of the acts establishing the
ecclesiastical commissioners. The appeal given to delegates appointed by
the crown has been transferred, first by 2 & 3 Will. IV. c. 92 to the
privy council, and then by 3 & 4 Will. IV. c. 41 to the judicial
committee of the privy council. Bishops may now be summoned as assessors
by 39 & 40 Vict. c. 59.
There was in the time of Elizabeth, James I. and Charles I. a "Court of
High Commission" with jurisdiction over laity and clergy, based on 1
Eliz. c. i. s. 15, which was reckoned as an ecclesiastical judicature (5
R. 1, _Cawdrey's case_) concurrent with the ordinary court Christian. It
was created by virtue of the royal supremacy, and was taken away by 16
Car. I. c. 11. As to its history see Stephen, _Hist. Crim. Law_, ii.
414-428.
In regard to clerical offences, 3 & 4 Vict. c. 86 (the "Church
Discipline Act") creates new tribunals; and first a commission of
inquiry appointed by the bishop of five persons, of whom the
vicar-general, or an archdeacon, or a rural dean of the diocese must be
one. If they report a _prima facie_ case, the bishop may (with the
consent of parties) proceed to sentence. In the absence of such
consent, the bishop may hear the cause with three assessors, of whom one
shall be a barrister of seven years' standing and another the dean of
the cathedral, or one of the archdeacons, or the chancellor. This court
is called the "consistory" court, but is not the old consistory. Both
these tribunals are new. But the bishop may instead send the cause, in
first instance, to the old provincial court, to which appeal lies, if it
be not so sent.
The Public Worship Regulation Act (37 & 38 Vict. c. 85) gave criminal
jurisdiction over beneficed clerks (concurrent with that of the tribunal
under 3 & 4 Vict. c. 86) to the judge under the act in matters of the
fabric, ornaments, furniture and decorations of churches, and the
conduct of divine service, rites and ceremonies. The "judge" under the
act is to be a barrister of ten years' standing, or an ex-judge of a
superior secular court, appointed by the archbishops of Canterbury and
York, with the approval of the crown, or, if they fail to appoint, by
the crown. Proceedings under this act are to be deemed to be taken in
the appropriate ancient ecclesiastical courts (_Green_ v. _Lord
Penzance_, 6 A. C. 657). The judge under this act became (upon vacancies
occurring) _ex officio_ official principal of the arches court of
Canterbury and of the chancery court of York. This provision caused
grave doubts to be entertained as to the canonical position of this
statutory official principal.
Finally, the Clergy Discipline Act 1892 (55 & 56 Vict. c. 32) creates
yet a new court of first instance for the trial of clerical offences
against morality in the shape of a consistory court, which is not the
old court of that name, but is to comprehend the chancellor and five
assessors (three clergymen and two laymen chosen from a prescribed
list), with equal power with the chancellor on questions of fact. In
many instances the conviction of a temporal court is made conclusive on
the bishop without further trial. In regard to moral offences,
jurisdiction under this act is exclusive. But it only applies to clerks
holding preferment. Under all these three acts there is a final appeal
to the judicial committee of the privy council.
None of these acts applies to the trial of bishops, who are left to the
old jurisdictions, or whatever may be held to be the old jurisdictions
(with that of the Roman See eliminated). As to suffragan bishops in the
province of Canterbury, see _Read_ v. _Bishop of Lincoln_, 13 P.D. 221,
14 P.D. 88. (On general questions see Phillimore, _Ecc. Law_, 65, 73.)
Despite the bishop of Lincoln's case, the law is in some uncertainty.
Dilapidations are now not made matters of suit before the court, but of
administrative action by the bishop.
The subject matter of ecclesiastical jurisdiction has been gradually
reduced in England, &c., by various causes. (1) The taking away of all
matrimonial, testamentary and _ab intestate_ jurisdiction by 20 & 21
Vict. c. 77 (testamentary, &c., England), c. 79 (testamentary, &c.,
Ireland), c. 85 (matrimonial, England); 33 & 34 Vict. c. 110
(matrimonial, Ireland). Matrimonial jurisdiction was taken from the
bishop of Sodor and Man in 1884. (2) Since 6 & 7 Will. IV. c. 71, tithe
has become, except in a few rare cases, tithe rent charge, and its
recovery has been entirely an operation of secular law. Most kinds of
offerings are now recoverable in secular courts. (3) Administration of
pious gifts has passed to the court of chancery. (4) The enforcement of
contractual promises has long been abandoned by the courts Christian
themselves. (5) Church rates can no longer be enforced by suit (31 & 32
Vict. c. 109). (6) _Defamation_ was taken away in England by 18 & 19
Vict. c. 41, and in Ireland by 23 & 24 Vict. c. 32. (7) Laymen can no
longer be tried in the spiritual courts for offences against clerks. (8)
The jurisdiction for "brawling" in church, &c., is taken away by 23 & 24
Vict. c. 32 in the case of the laity. In the case of persons in holy
orders there is a concurrent jurisdiction of the two tribunals
(_Valancy_ v. _Fletcher_, 1897, 1 Q.B. 265). This was an offence very
frequently prosecuted in the courts Christian (see A.J. Stephens,
_Ecclesiastical Statutes_, i. 336).
The existing ecclesiastical jurisdiction in England is therefore now
confined to the following points. (1) Discipline of the clergy. (2)
Discipline of the laity in respect of sexual offences as already
stated. (3) Control of lay office-bearers, church-wardens, sidesmen,
organists, parish clerks, sextons. (4) Protection of the fabrics of
churches, of churchyards, ornaments, fittings, &c., sanctioning by
licence or faculty any additions or alterations, and preventing or
punishing unauthorized dealings by proceedings on the criminal side of
the courts. (5) Claims by individuals to particular seats in church or
special places of sepulture. (6) Rare cases of personal or special
tithes, offerings or pensions claimed by incumbents of benefices. In the
Isle of Man and the Channel Islands courts Christian have now
jurisdiction substantially as in England. In Jersey and in Guernsey
there are courts of first instance with appeal to the bishop of
Winchester. Ecclesiastical jurisdiction in Ireland was as in England
till the Irish Church was disestablished in 1869 by 32 & 33 Vict. c. 42.
Ecclesiastical jurisdiction in non-established churches.
The position of a disestablished or an unestablished Church is
comparatively modern, and has given rise to new jural conceptions. These
Churches are _collegia licita_ and come within the liberty of
association so freely conceded in modern times. The relations of their
bishops, priests or other ministers and lay office-bearers _inter se_
and to their lay folk depend upon contract; and these contracts will be
enforced by the ordinary courts of law. A consensual ecclesiastical
jurisdiction is thus created, which has to this extent temporal
sanction. _In foro conscientiae_ spiritual censures canonically imposed
are as binding and ecclesiastical jurisdiction is as powerful as ever.
Into the British-settled colonies no bishops were sent till 1787; and
consequently there were no regular courts Christian. The bishop of
London was treated as the diocesan bishop of the colonists in North
America; and in order to provide for testamentary and matrimonial
jurisdiction it was usual in the letters patent appointing the governor
of a colony to name him ordinary. In New York state there is still a
court called the surrogates court, surrogate being the regular name for
a deputy ecclesiastical judge. In Lower Canada, by treaty, the Roman
Catholic Church remained established.
Throughout the United States, whatever may have been the position in
some of them before their independence, the Church has now no position
recognized by the State, but is just a body of believers whose relations
are governed by contract and with whom ecclesiastical jurisdiction is
consensual.
The position is the same now through all the British colonies (except,
as already mentioned, Lower Canada or Quebec). From 1787 onwards,
colonial bishops and metropolitans were appointed by letters patent
which purported to give them jurisdiction for disciplinary purposes. But
a series of cases, of which the most remarkable was that _Re the Bishop
of Natal_ (3 Moore P.C. N.S. A.D. 1864), decided that in colonies
possessing self-governing legislatures such letters patent were of no
value; and soon after the crown ceased to issue them, even for crown
colonies.
In India the metropolitan of Calcutta and the bishops of Madras and
Bombay have some very limited jurisdiction which is conferred by letters
patent under the authority of the statutes 53 Geo. III. c. 155 and 3 & 4
Will. IV. c. 85. But the other Indian bishops have no position
recognized by the State and no jurisdiction, except consensual.
Ecclesiastical jurisdiction in Scotland.
The Church had the same jurisdiction in Scotland, and exercised it
through similar courts to those which she had in England and France,
till about 1570. As late as 1566 Archbishop Hamilton of Glasgow, upon
his appointment, had restitution of his jurisdiction in the probate of
testaments and other matters (Keith, _History of the Scottish Bishops_,
Edinburgh, 1824, p. 38). There was an interval of uncertainty, with at
any rate titular bishops, till 1592. Then parliament enacted a new
system of Church courts which, though to some extent in its turn
superseded by the revival of episcopacy under James VI., was revived or
ratified by the act of 1690, c. 7, and stands to this day. It is a
Presbyterian system, and the Scottish Episcopal Church is a
disestablished and voluntary body since 1690.