Chapter XVIII: Part 18

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.

The Presbyterian courts thus created are arranged in ascending order:--

(a) _Kirk Session_ consists of the minister of the parish and the "ruling elders" (who are elected by the session). It has cognizance of scandalous offences by laymen and punishes them by deprivation of religious privileges. It does not judge ministers (Brodie-Innes, _Comparative Principles of the Laws of England and Scotland_, 1903, p. 144).

(b) The _Presbytery_ has jurisdiction, partly appellate and partly original, over a number of parishes. There are now eighty-four presbyteries. These courts consist of every parochial minister or professor of divinity of any university within the limits, and of an elder commissioned from every kirk session. A minister is elected to preside as moderator. These courts judge ministers in first instance for scandalous conduct. As civil courts they judge in first instance all questions connected with glebes and the erection and repair of churches and manses. They regulate matters concerning public worship and ordinances, and have appellate jurisdiction from the kirk session.

(c) The _Provincial Synod_ consists of a union of three or more presbyteries with the same members. There are now sixteen. They meet twice a year to hear appeals from presbyteries. No appeal can go direct to the General Assembly, _omisso medio_, unless the presbytery have so expressly directed, or unless there be no meeting of synod after the decision of the presbytery before the meeting of General Assembly.

(d) The _General Assembly_ is the supreme ecclesiastical court of this system. It meets annually. The king's "lord high commissioner" attends the sittings; but does not intervene or take part in the court's decisions. The court consists of ministers and elders, elected from the presbyteries in specified proportions, and of commissioners from the four universities, the city of Edinburgh and the royal burghs. The Presbyterian Church in India sends one minister and one elder. The whole Assembly consists of 371 ministers and 333 elders. The jurisdiction is entirely appellate. The Assembly appoints a commission to exercise some of its functions during the intervals of its session. To this commission may be referred the cognizance of particular matters.

Questions of _patronage_ now (by 37 & 38 Vict. c. 82) belong to the Church courts; but not questions of _lapse_ or _stipend_. Seats, seat rents, pews, the union and disjunction of parishes and formation of district parishes are of secular jurisdiction. Questions of tithes (or "teinds") and ministers' stipends were referred to commissioners by acts of the Scots parliaments beginning in 1607. The commissioners of teinds became a species of ecclesiastical court. By Scots act of 1707, c. 9, their powers were transferred to the judges of the court of session, who now constitute a "teind court" (Brodie-Innes, op. cit. pp. 138, 139). Matrimonial matters and those relating to wills and succession (called in Scotland "consistorial" causes) were in 1563 taken from the old bishops' courts and given to "commissaries" appointed by the crown with an appeal to the court of session, which by act 1609, c. 6, was declared the king's great consistory. They have remained matters of secular jurisdiction.

The Scots ecclesiastical courts are entitled to the assistance of the secular courts to carry out their jurisdiction by "due assistance." Within the limits of their jurisdiction they are supreme. But if a court go outside its jurisdiction, or refuse to exercise powers conferred on it by law, the civil court may "reduce" (i.e. set aside) the sentence and award damages to the party aggrieved.

Protestant continental European states.

With the Reformation in the 16th century, Church courts properly speaking disappeared from the non-episcopal religious communities which were established in Holland, in the Protestant states of Switzerland and of Germany, and in the then non-episcopal countries of Denmark and Norway.

Discipline over ministers and other office-bearers was exercised by administrative methods in the form of trials before consistories or synods. To this extent ecclesiastical jurisdiction is still exercised in these countries. Consistories and synods have exercised discipline of a penitential kind over their lay members; but in later times their censures have generally ceased to carry temporal consequences. Ecclesiastical jurisdiction on the civil side for the trial of causes soon disappeared. Heresy has been treated as a crime to be tried in and punished by the ordinary courts of the country, as in the cases of Servetus (q.v.) and Grotius (q.v.).

For the episcopal churches of Sweden and Finland the first constitution or "Church order" was formed in 1571. It provided for the visitation of the clergy by the bishop, and for the power of the clergy to exclude their lay folk from the Holy Communion, subject to appeal to the bishop. Both minor and major excommunication had been in use, and for a long time public penance was required. The procedure underwent great modification in 1686; but public penance was not taken away till 1855, and then confession to and absolution by the priest in the presence of witnesses was still required. Civil jurisdiction in causes appears to have been given up early (Cornelius, _Svenska Kirkaus Historia_, Upsala, 1875, pp. 146, 186, 189, 285).

Roman Catholic countries.

Over the rest of western continental Europe and in the colonies of Spain, Portugal and France, ecclesiastical jurisdiction remained generally in the state which we have already described till near the end of the 18th century. The council of Trent took away the jurisdiction of archdeacons in marriage questions. The testamentary jurisdiction disappeared (as already stated) in France. Disputed cases of contract were more often tried in the secular courts. Recourse to the secular prince by way of _appel comme d'abus_, or otherwise, became more frequent and met with greater encouragement. Kings began to insist upon trying ecclesiastics for treason or other political crimes in secular courts. So under the advice of his minister (the marquis of Pombal), King Joseph of Portugal in 1759-1760 claimed that the pope should give him permission to try in all cases clerics accused of treason, and was not content with the limited permission given to try and execute, if guilty, the Jesuits then accused of conspiring his death (_Life of Pombal_, by Count da Carnota, 1871, pp. 128, 141). But there was no sudden change in the position of the courts Christian till the French Revolution.

In France a law of the Revolution (September 1790) purported to suppress all ecclesiastical jurisdictions. On the re-establishing of the Catholic religion on the basis of the new Concordat, promulgated 18 Germinal, year X. (April 8, 1802), no express provision was made for ecclesiastical jurisdictions; but several bishops did create new ecclesiastical tribunals, "officialities" (Migne, _Dict. de droit canon._, s.v.). The government in some cases recognized these tribunals as capable of judging ecclesiastical causes (Migne, _ubi sup._). In 1810 the diocesan official of Paris entertained the cause between Napoleon and Josephine, and pronounced a decree of nullity (Migne, _ubi sup._ s.v. "Causes"). Such litigation as still continued before the spiritual forum was, however, confined (save in the case of the matrimonial questions of princes) to the professional conduct of the clergy.

Such neighbouring countries as were conquered by France or revolutionized after her pattern took the same course of suppressing their ecclesiastical jurisdictions. After 1814, some of these jurisdictions were revived. But the matter is now determined for all countries which have adopted codes, whether after the pattern of the Code Napoleon or otherwise. These countries have created a hierarchy of temporal courts competent to deal with every matter of which law takes cognizance, and a penal code which embraces and deals with all crimes or delicts which the state recognizes as offences. Hence, even in countries where the Roman Church is established, such as Belgium, Italy, the Catholic states of Germany and cantons of Switzerland, most of the Latin republics of America, and the province of Quebec, and _a fortiori_ where this Church is not established, there is now no discipline over the laity, except penitential, and no jurisdiction exercised in civil suits, except possibly the matrimonial questions of princes (of which there was an example in the case of the reigning prince of Monaco). In Spain causes of nullity and divorce _a thoro_, in Portugal causes of nullity between Catholics, are still for the court Christian. In Peru, the old ecclesiastical matrimonial jurisdiction substantially remains (Lehr, _Le Mariage dans les principaux pays_, 1899, arts. 362, 797, 772, 781). Otherwise these three countries are Code countries. In Austria, the ancient ecclesiastical jurisdiction was taken away by various acts of legislation from 1781 to 1856; even voluntary jurisdiction as to dispensations. The Concordat of 1856 and consequent legislation restored matrimonial jurisdiction to the courts Christian over marriages between Roman Catholics. In 1868 this was taken away. The Austrian bishops, however, maintain their tribunals for spiritual purposes, and insist that such things as divorce _a vinculo_ must be granted by their authority (Aichner, _Compendium juris ecclesiastici_, pp. 551-553).

By consent and submission of her members, the Roman Church decides _in foro conscientiae_ questions of marriage, betrothal and legitimacy everywhere; but no temporal consequences follow except in Spain, Portugal and Peru.

The position in France was the same as that in Belgium, Italy, &c., till 1906, when the Church ceased to be established. The only Latin countries in which conflict has not arisen appear to be the principality of Andorra and the republic of San Marino (Giron y Areas, _Situacion juridica de la Iglesia Catolica_, Madrid, 1905, p. 173 et seq.).

Even as to the discipline of the Roman clergy it is only in certain limited cases that one can speak of ecclesiastical jurisdiction. Bishops and beneficed incumbents (_cures_) must be regularly tried; and where the Church is established the canonical courts are recognized. But the majority of parishes are served by mere _desservants_ or _vicaires_, who have no rights and can be recalled and dismissed by mere administrative order without trial (Migne, _ubi sup._ s.v. "Inamovibilite," "Desservants").

The Napoleonic legislation re-established the _appel comme d'abus_ ("_Articles organiques_," art. 6). The recourse was now to the council of state (see Migne, _ubi supra_, "Officialite"). But the revocation of a _desservant_, and the forbidding him the execution of his ministry in the diocese, was not a case in which the council of state would interfere (Migne, _ubi sup._ "Appel comme d'abus," "Conseil d'etat").

Jurisdiction in Anglican communion.

In those provinces of the Anglican communion where the Church is not established by the state, the tendency is not to attempt any external discipline over the laity; but on the other hand to exercise consensual jurisdiction over the clergy and office-bearers through courts nearly modelled on the old canonical patterns.

Modern jurisdiction of Church of Rome.

In the Roman communion, on the other hand, both where the Church is established and where it is not, the tendency is to reduce the status of _cure_ to that of _desservant_, and to deal with all members of the priestly or lower orders by administrative methods. This practice obtains in all missionary countries, e.g. Ireland and also in Belgium (S.B. Smith, _Elements of Ecclesiastical Law_, New York, i. 197 et seq.; p. 403 et seq.; Tauber, _Manuale juris canonici_, Sabariae, 1904, p. 277). In the United States, the 3rd plenary council of Baltimore in 1884 provided that one rector out of ten should be irremovable (Smith, op. cit. i. 197, 419). In England there are few Roman "benefices" (E. Taunton, _Law of the Church_, London, 1906, s.v. "Benefice"). A _desservant_ has an informal appeal, by way of recourse, to the metropolitan and ultimately to the pope (Smith, op. cit. p. 201). The bishop's "official" is now universally called his vicar-general (except in France, where sometimes an _official_ is appointed _eo nomine_), and generally exercises both voluntary and contentious jurisdiction (op. cit. i. 377). As of old, he must be at least tonsured and without a wife living. At the Vatican Council, a desire was expressed that he should be a priest (ib.). He should be a doctor in theology or a licentiate in canon law (ib. p. 378). Whether a bishop is bound to appoint a vicar-general is still disputed (ib. p. 380; cf. _supra_; _contra_, Bouix, _Inst. Juris Canon. De Judic._ i. 405). In 1831 the pope enacted that in all the dioceses of the then Pontifical States, the court of first instance for the criminal causes of ecclesiastics should consist of the ordinary and four other judges. In the diocese of Rome, the court of the cardinal vicar-general consists of such vicar-general and four other prelates (Smith, _ubi supra_). In the Roman communion in England and the United States, there are commissions of investigation appointed to hear in first instance the criminal causes of clerks. They consist of five, or at least three, priests nominated by the bishop in and with the advice of the diocesan synod. In the United States, since 1884, the bishop presides on these commissions. They report their opinions to the bishop, who passes final sentence (ib. ii. 129-131).

"Exemptions" now include all the regular religious orders, i.e. those orders which have solemn vows. Over the members of these orders their superiors have jurisdiction and not the bishop. Otherwise if they live out of their monastery, or even within that enclosure so notoriously offend as to cause scandal. In the first case, they may be punished by the ordinary of the place, acting as delegate of the pope without special appointment (_Conc. Trid. Sess._ vi. c. 3). In the second case, the bishop may require the superior to punish within a certain time and to certify the punishment to him; in default he himself may punish (_Conc. Trid. Sess._ xxv. c. 14, cf. Smith, op. cit. i. 204-206). So, regulars having cure of souls are subject to the jurisdiction of the bishop in matters pertaining thereto (ib. p. 206). The exemption of regular religious orders may be extended to religious societies without solemn vows by special concession of the pope, as in the case of the Passionists and Redemptorists (ib. p. 205; Sanguineti, _Juris ecc. inst._, Rome, 1800, pp. 393, 394).

Appeal lies, in nearly all cases, to the metropolitan (Smith, op. cit. pp. 219-223). Metropolitans usually now have a metropolitan tribunal distinct from their diocesan court (ib. ii. 141), but constructed on the same lines, with the metropolitan as judge and his vicar-general as vice-judge. In some "missionary" dioceses, the metropolitan, _qua_ metropolitan, has a separate commission of investigation, to try the criminal causes of clerks, sentence being passed by himself or his vicar-general (ib. p. 142).

The next step in the hierarchy, that of "primates" (_supra_), has "in the present state of the Church" ceased to exist for our purpose (Sanguineti, op. cit. p. 334), as a result of Tridentine legislation. The only appellate jurisdiction from the metropolitans is the Roman See. To it also lies a direct appeal from the court of first instance, _omisso medio_ (Smith, op. cit. i. 224). The pope's immediate and original jurisdiction in every diocese is now expressly affirmed by the Vatican Council (ib. p. 239). That original jurisdiction he reserves exclusively to himself in _causis majoribus_ (ib. pp. 249-250). These are (1) causes relating to elections, translations and deprivations of, and criminal prosecutions against, bishops, and (2) the matrimonial cases of princes (Taunton, op. cit. s.v. "Cause").

Eastern Church.

In the Eastern Church, the early system of ecclesiastical judicature long continued. But a sacred character was ascribed to the emperors. They are "anointed lords like the bishops" (Balsamon, in _Conc. Ancyr. Can._ xii., representing the view of the 12th and 13th centuries). Bishops were often deposed by administrative order of the emperor; synods being expected afterwards to confirm, or rather accept, such order. The germ of this dealing with a _major causa_ may be found in the practice of the Arian emperors in the 4th century. The cause of Ignatius and Photius was dealt with in the 9th century by various synods; those in the East agreeing with the emperor's view for the time being, while those in the West acted with the pope. (The details are in Mansi, _Conc. in locis_, and in Hefele, _Conc. in locis_, more briefly. They are summarized in Landon, _Manual of Councils_, s.v. "Constantinople," "Rome," and in E.S. Foulkes, _Manual of Ecclesiastical History_, s.v. "Century IX.") Since these transactions patriarchs have been deposed by the Byzantine emperors; and the Turkish sultans since the 15th century have assumed to exercise the same prerogative.

The spiritual courts in the East have permanently acquired jurisdiction in the matrimonial causes of baptized persons; the Mahommedan governments allowing to Christians a personal law of their own. The patriarch of Constantinople is enabled to exercise an extensive criminal jurisdiction over Christians (Neale, _Hist. of the Eastern Church_, i. 30, 31).

The empire of Russia has in the matter of ecclesiastical jurisdiction partly developed into other forms, partly systematized 4th century and later Byzantine rules. The provincial system does not exist; or it may be said that all Russia is one province. An exception should be made in the case of Georgia, which is governed by an "exarch," with three suffragans under him. In the remainder of the empire the titles of metropolitan, save in the case of the metropolitan of all Russia, and of archbishop, were and are purely honorary, and their holders have merely a diocesan jurisdiction (see Mouravieff, _History of the Russian Church_, translated Blackmore, 1842, translator's notes at pp. 370, 390, 416 et seq.). So in Egypt the bishop or "pope" (afterwards patriarch) of Alexandria was the only true metropolitan (Neale, _History of the Eastern Church_, Gen. Introd. vol. i. p. 111). The metropolitan of Russia from the time of the conversion (A.D. 988) settled at Kiev, and his province was part of the patriarchate of Constantinople, and appeals lay to Constantinople. Many such appeals were taken, notably in the case of Leon, bishop of Rostov (Mouravieff, op. cit. p. 38). The metropolitical see was for a short time transferred to Vladimir and then finally to Moscow (Mouravieff, chs. iv., v.). After the taking of Constantinople in 1452, the Russian metropolitans were always chosen and consecrated in Russia, appeals ceased, and Moscow became _de facto_ autocephalous (Joyce, ubi sup. p. 379; Mouravieff, op. cit. p. 126). The tsar Theodore in 1587 exercised the power of the Byzantine emperors by deposing the metropolitan, Dionysius Grammaticus (Mouravieff, p. 125). In 1587 the see of Moscow was raised to patriarchal rank with the consent of Constantinople, and the subsequent concurrence of Alexandria, Antioch and Jerusalem (ib. c. vi.). Moscow became the final court, in theory, as it had long been in practice. Certain religious houses, however, had their own final tribunals and were "peculiars," exempt from any diocesan or patriarchal jurisdiction for at least all causes relating to Church property (ib. p. 131).

The subject matter of ecclesiastical jurisdiction in Russia during the whole patriarchal period included matrimonial and testamentary causes, inheritance and sacrilege, and many questions concerning the Church domains and Church property, as well as spiritual offences of clergy and laity (ib.). The bishops had consistorial courts; the patriarchs, chanceries and consistories (ib.). Bishops were judged in synod (see, e.g. the case of the archbishop of Polotsk in 1622, ib. p. 179) and only lawfully judged in synod (ib. p. 215).