sequence of this separation: for the Saxon laws were soon overborne by the Norman justiciaries, when the countycourt fell into disregard by the bishop's withdrawing his presence, in obedience to the charter of the conquerord: which prohibited any spiritual cause from being tried in the secular courts, and commanded the suitors to appear before the bishop only, whose decisions were directed to conform to the canon law. KING Henry the first, at his accession, among other restorations of the laws of king Edward the confessor, revived this of the union of the civil and ecclesiastical courts. Which was, according to sir Edward Cokes, after the great heat of the conquest was past, only a restitution of the antient law of England. This however was ill-relished by the popish clergy, who, under the guidance of that arrogant prelate, archbishop Anselm, very early disapproved of a measure that put them on a level with the profane laity, and subjected spiritual men and causes to the inspection of the secular magistrates and therefore in their synod at Westminster, 3 Hen. 1. they ordained that no bishop should attend the discussion of temporal causesh; which soon dissolved this newly effected union. And when, upon the death of king Henry the first, the usurper Stephen was brought in and sup- [ 64 ] ported by the clergy, we find one article of the oath which they imposed upon him was, that ecclesiastical persons and ecclesiastical causes should be subject only to the bishop's ju d Hale Hist. C. L. 102. Selden in Eadm. p. 6. 1. 24. 4 Inst. 259. Wilk. e Nullus episcopus vel archidiaconus de legibus episcopalibus amplius in hundred placita teneant, nec causam, quae ad regimen animarum pertinet, ad judicium secularium hominum adducant: sed quicunque secundum episcopales leges, de quacunque causa vel culpa interpellatus fuerit, ad locum, quem ad hoc episcopus elegerit et nominaverit, veniat; ibique de causa vel culpa sua respondeat ; et non secundum hundred, sed secundum canones et episcopales leges, rectum Deo et episcopo suo faciat. Wilk, 292. † Volo et praecipio, ut omnes de comi tatu cant ad comitatus et hundreda, sicut #2 Inst. 70. h Ne episcopi saecularium placitorum officium suscipiant. `Spelm. Cod. 301. risdiction. And as it was about that time that the contest and emulation began between the laws of England and those of Rome, the temporal courts adhering to the former, and the spiritual adopting the latter as their rule of proceeding, this widened the breach between them, and made a coalition afterwards impracticable; which probably would else have been effected at the general reformation of the church. In briefly recounting the various species of ecclesiastical courts, or, as they are often styled, courts christian, (curiae christianitatis,) I shall begin with the lowest, and so ascend gradually to the supreme court of appeal'. 1. THE archdeacon's court is the most inferior court in the whole ecclesiastical polity. It is held in the archdeacon's absence before a judge appointed by himself, and called his official; and its jurisdiction is sometimes in concurrence with, sometimes in exclusion of, the bishop's court of the diocese. From hence, however, by statute 24 Hen. VIII. c. 12. an appeal lies to that of the bishop. 2. THE consistory court of every diocesan bishop is held in their several cathedrals, for the trial of all ecclesiastical causes arising within their respective dioceses. The bishop's chancellor, or his commissary, is the judge; and from his sentence. an appeal lies, by virtue of the same statute, to the archbishop of each province respectively. 3. The court of arches is a court of appeal belonging to the archbishop of Canterbury; whereof the judge is called [65] the dean of the arches; because he antiently held his court in the church of Saint Mary le bow, (sancta Maria de arcubus,) though all the principal spiritual courts are now holden at doctors' commons. His proper jurisdiction is only over the thirteen peculiar parishes belonging to the archbishop in London; but the office of dean of the arches having been for a long time united with that of the archbishop's principal official, he now, in right of the last-mentioned office, (as doth also the Spelm. Cod. 310. * See Vol. I. introd. § 1. ecclesiastical law, Wood's institute of the common law, and Oughton's ordo judi 1 For farther particulars, see Burn's ciorum. official principal of the archbishop of York,) receives and determines appeals from the sentences of all inferior ecclesiastical courts within the province. And from him an appeal lies to the king in chancery, (that is, to a court of delegates appointed under the king's great seal,) by statute 25 Hen. VIII. c. 19. as supreme head of the English Church, in the place of the bishop of Rome, who formerly exercised this jurisdiction; which circumstance alone will furnish the reason why the popish clergy were so anxious to separate the spiritual court from the temporal. 4. THE Court of peculiars is a branch of and annexed to the court of arches. It has a jurisdiction over all those parishes dispersed through the province of Canterbury in the midst of other dioceses, which are exempt from the ordinary's jurisdiction, and subject to the metropolitan only. All ecclesiastical causes, arising within these peculiar or exempt jurisdictions, are, originally, cognizable by this court; from which an appeal lay formerly to the pope, but now by the statute 25 Hen. VIII. c. 19. to the king in chancery. 5. THE prerogative court is established for the trial of all testamentary causes, where the deceased hath left bona notabilia within two different dioceses. In which case the probate of wills belongs, as we have formerly seen, to the archbishop of the province, by way of special prerogative. And all causes relating to the wills, administrations, or legacies of such persons are, originally, cognizable herein, before a judge appointed by the archbishop, called the judge of the prerogative court; from whom an appeal lies by sta- [66] tute 25 Hen. VIII. c. 19. to the king in chancery, instead of the pope, as formerly. I PASS by such ecclesiastical courts as have only what is called a voluntary, and not a contentious jurisdiction; which are merely concerned in doing or selling what no one opposes, and which keep an open office for that purpose, (as granting dispensations, licences, faculties (2), and other remnants of the papal extortions,) but do not concern themselves with administering redress to any injury; and shall proceed to 6. THE great court of appeal in all ecclesiastical causes, viz. the court of delegates, judices delegati, appointed by the king's commission under his great seal, and issuing out of chancery, to represent his royal person, and hear all appeals to him made by virtue of the before-mentioned statute of Henry VIII. This commission is frequently filled with lords, spiritual and temporal, and always with judges of the courts at Westminster, and doctors of the civil law. Appeals to Rome were always looked upon by the English nation, even in the times of popery, with an evil eye; as being contrary to the liberty of the subject, the honour of the crown, and the independence of the whole realm; and were first introduced in very turbulent times in the sixteenth year of king Stephen (A.D. 1151.), at the same period (sir Henry Spelman observes) that the civil and canon laws were first imported into England". But, in a few years after, to obviate this growing practice, the constitutions made at Clarendon, 11 Hen. II. on account of the disturbances raised by archbishop Becket and other zealots of the holy see, expressly declare, that appeals in causes ecclesiastical ought to lie, from the archdeacon to the diocesan; from the diocesan to the archbishop of the province; and from the archbishop to the king; and are not to proceed any farther without special licence from the crown. But the unhappy advantage that was given in the reigns of king John, and his son Henry the third, to the encroaching [67] power of the pope, who was ever vigilant to improve all opportunities of extending his jurisdiction hither, at length (2) These faculties must not be confounded with those which are granted for the regulation of matters relating to church-buildings, ornaments, pews, &c. which are not matters of course, and the disputes respecting which are tried in the respective ecclesiastical courts mentioned in the text. But faculties for holding two benefices, &c. are here intended. rivetted the custom of appealing to Rome in causes ecclesiastical so strongly, that it never could be thoroughly broken off, till the grand rupture happened in the reign of Henry the eighth; when all the jurisdiction usurped by the pope in matters ecclesiastical was restored to the crown, to which it originally belonged: so that the statute 25 Henry VIII. was but declaratory of the antient law of the realm P. But in case the king himself be party in any of these suits, the appeal does not then lie to him in chancery, which would be absurd; but by the statute 24 Hen. VIII. c. 12. to all the bishops of the realm, assembled in the upper house of convocation. (3) 7. A COMMISSION of review is a commission sometimes granted, in extraordinary cases, to revise the sentence of the court of delegates; when it is apprehended they have been led into a material error. This commission the king may grant, although the statutes 24 & 25 Hen. VIII. before cited declare the sentence of the delegates definitive: because the pope as supreme head by the canon law used to grant such commission of review; and such authority as the pope heretofore exerted, is now annexed to the crown by statutes 26 Hen. VIII. c. 1. and 1 Eliz. c. 1. But it is not matter of right, which the subject may demand ex debito justitiae; but merely a matter of favour, and which therefore is often denied. " THESE are now the principal courts of ecclesiastical jurisdiction; none of which are allowed to be courts of record; no more than was another much more formidable jurisdiction, but now deservedly annihilated, viz. the court of the king's high commission in causes ecclesiastical. This court was erected and united to the regal power' by virtue of the statute 1 Eliz. c. 1. instead of a larger jurisdiction which had before (3) Not to all the bishops of the realm, but of the province, where the matter is begun; indeed, as has been correctly observed by Mr. Christian in his note on this passage, there can be no such assembly as that described in the text, for the convocation is a provincial assembly held in each province. |