request, original suits may be brought there in matters concerning the fabric, ornaments, or furniture of any church, or in respect of the burial ground, or concerning ritual. (u) Appeal lies to the King in Council, that is, since 1833, to the judicial committee of the Privy Council. (v) (2) The Prerogative Courts of Canterbury and York.-When the ecclesiastics obtained jurisdiction over wills and administrations in the twelfth and thirteenth centuries, this jurisdiction was exercised by the ordinary (or bishop) of the diocese. But if the deceased had bona notabilia, that is goods to the value of 100s. in two provinces, to save the expense of separate probates the will was proved before the archbishop in the prerogative court of the province. In 1857 the jurisdiction in wills and administration was taken from the ecclesiastical courts and handed over to the Court of Probate, (w) and by the Judicature Act, 1873, to the Probate Divorce and Admiralty division of the High Court of Justice. In addition to the Court of Arches in Canterbury and the Court of Chancery in York, there are in Canterbury the court of the Commissary, which is the ordinary consistory court for the archbishop's diocese; the Court of the Vicar-General, before which the confirmation of bishops takes place; (x) and the Court of the Master of the Faculties, which attends to matters connected with public notaries, who are still appointed by the Archbishop of Canterbury by faculty. (y) In York there is also the ordinary consistory or diocesan court of the archbishop. In both provinces there were formerly Courts of Audience, where the archbishop himself presided, but these have fallen into disuse. (z) (3) The Diocesan or Consistory Court of the Bishop.—This court was presided over by the bishop's chancellor, who must be, since 1603, a bachelor of laws or a master of arts. Originally the court thus constituted had cognizance of all ecclesiastical causes arising within the diocese. Jurisdiction (u) Public Worship Regulation Act, 1874. (19) 3 & 4 Will. IV. c. 41. (w) 20 & 21 Vict. c. 77. (x) See ante, p. 80. (y) Phill., Eccl. Law, 945. () As to these various courts see Phill., Eccl. Law, 922 et seq. over offending clerks was taken from the chancellor in 1840, and handed over to the bishop sitting with five assessors. It was, however, restored to the chancellor by the Church Discipline Act, 1892 (a) (with regard to offences falling within the Act), which provided that complaints on the ground of immorality against the clergy should be held in the consistory court before the chancellor, and five assessors if either party desire. Appeal may be, at the option of the appellant, to the provincial court or to the King in Council, but either is final. Questions of ritual and doctrine do not come within the Act. By the Public Worship Regulation Act, 1874, (b) questions concerning the fabric, ornaments, or furniture of any church, or in respect of the burial ground or concerning ritual may be represented to the bishop by an archdeacon, a churchwarden, or any three parishioners; the bishop may either refuse to institute proceedings, or, with the consent of both parties, deal finally with the case; if the parties do not so consent, the case goes to the provincial court. (4) Peculiar Courts.-Besides the consistory courts, there were in various dioceses peculiar courts with jurisdiction over such causes as arose within the peculiar parishes mentioned above. The Dean of the Court of Arches, which took its name from the form of the arches in the steeple of Bow Church in London, where the court was held, formerly exercised the peculiar jurisdiction of the Archbishop of Canterbury over the parish of Bow and twelve other parishes, which were exempt from the Bishop of London's jurisdiction. (c) This appellation of Dean of the Arches became synonymous with the archbishop's official principal, who presided over the Court of Appeal of the province of Canterbury, known as the Court of Arches. (d) This peculiar jurisdiction has been abolished, and no Dean of the Arches is in fact now appointed. The jurisdiction of the peculiars has now for most purposes been abolished and handed over to the archbishop or bishop (a) 55 & 56 Vict. c. 32. (b) 37 & 38 Vict. c. 85. of the diocese. Certain peculiars may, however, grant marriage licences concurrently with the bishop. (e) (5) The Archdeacon's Court.-The functions of this court were originally to hold inquiries into matters relating principally to church fabrics and furniture. It, however, extended its jurisdiction at the expense of the consistory court. It has now become obsolete. (6) The Court of the Rural Dean.-This court was held preparatory to the visitation of the archdeacon's court. This also has now become obsolete. (7) The Court of High Commission.-This court was brought into existence by the 1 Eliz. c. 1, which gave the Crown power to issue commissions to try all manner of errors, schisms, heresies, abuses, offences, contempts, and enormities. of A permanent court was constituted in 1583 of forty-four persons, twelve being bishops and three forming a quorum. Under these very wide powers the court proceeded in that and the two following reigns to exercise almost despotic powers fining and imprisoning, but it had no power of inflicting death or torture. Its sentences were arbitrary and severe, and it tried offences both of clergy and laity. The court was abolished with the other ecclesiastical courts in 1640. (f) James II. endeavoured to revise it as the court of commissioners for ecclesiastical causes with Judge Jeffreys as its president. His subsequent flight put an end to the attempt, which was declared illegal by the Bill of Rights. (8) The Court of Delegates.-This court was established by the 25 Henry VIII. c. 19 (1534), which authorized the Crown to issue a commission out of Chancery to hear appeals in ecclesiastical causes. Appeals to this court took the place of appeals to Rome, and its decisions were final. Appeals lay to it from all the inferior ecclesiastical courts until 1832, when a royal commission, which had been formed for the purpose, having reported unfavourably of it, it was abolished by the 2 & 3 Will. IV. c. 92, and its powers transferred to the King in Council, and eventually, by the 3 & 4 Will. IV. c. 41, to the judicial committee of the Privy Council. (e) Phill., Eccl. Law, 214. (f) 16 Car. I. c. 11. The ordinary ecclesiastical courts were revived after the restoration in 1661 (13 Car. II. st. 1, c. 12). The Judicature Act, 1873, (g) threatened to destroy the appellate jurisdiction of the Privy Council with that of the House of Lords, but it was restored by the Appellate Jurisdiction Act, 1876, which provided for the appointment of certain of the archbishops and bishops to sit as assessors of the judicial committee to hear ecclesiastical causes. (h) Jurisdiction of the Ecclesiastical Courts.-The ecclesiastical courts enjoyed, and still enjoy, jurisdiction over such purely ecclesiastical matters as ordination, consecration, ecclesiastical status, church fabric and repairs, and the like, but in addition they obtained jurisdiction over such purely temporal matters as wills and administrations, and matrimonial causes and divorce. They also enjoyed certain criminal jurisdiction, and prior to the Restoration this extended over clerics and laymen alike. Their jurisdiction in wills and administrations was abolished in 1857, and handed over to the Court of Probate, (i) and in the same year jurisdiction in matrimonial causes was handed over to the Court of Divorce. (j) Both these jurisdictions have, since the Judicature Act of 1873, become vested in the Probate, Divorce, and Admiralty Division of the High Court of Justice, appeal lying in ecclesiastical matters to the judicial committee of the Privy Council, and in matrimonial matters and divorce to the Court of Appeal. The Criminal Jurisdiction. The ecclesiastical courts, however, retained their criminal jurisdiction—(1) In cases where a clerk was accused of felony. This right of trying their own clerks was termed Benefit of Clergy, and consisted in the right of the clerk in orders, when before the temporal court on a charge of felony, of being handed over to the ecclesiastical courts, where he could clear himself by compensation. This privilege was eventually extended to all persons who could read, and by a statute of Anne (k) even this qualification was rendered unnecessary, and all clerics and laymen could claim Benefit of Clergy alike. But a layman claiming the benefit could be branded in the hand, and he could claim it once only. (1) Subsequently in the greater offences, when guilt was certain, the clerk was handed over absque purgatione facienda, which meant that he had to undergo imprisonment for life. Subject, however, to this, clerks who had committed" clergyable" offences got off with the forfeiture of their goods as often as they offended, and the same was the case with the peers and peeresses as regards the first offence. In the case of commoners the right became restricted to the first offence, and released them from capital punishment only. In the case of the more heinous felonies Benefit of Clergy was abolished by various statutes, and it was finally abolished altogether in 1827 (7 & 8 Geo. IV. c. 28) in the case of commoners, and by 4 & 5 Vict. c. 22 in the case of peers. (2) In matters of a purely spiritual nature. These were principally proceedings pro salute animæ of the offender, and this jurisdiction the Church claimed over laymen as well as clerics. Such matters as adultery, perjury, defamation, swearing, profanity, drunkenness, faith, morality, and heresies came under this head, and the Court of High Commission tried errors, schisms, abuses, offences, contempts, and enormities. The penalties inflicted by the ordinary courts were mostly by way of penance and could be commuted by payment; the Court of High Commission could sentence to fine or imprisonment, but could not inflict death or torture. The proceedings were either by way of inquisition, accusation, or denunciation, (m) and it was on account of the abhorrence in which they were held that Parliament abolished the ecclesiastical courts in 1640; but, with the exception of the Court of High Commission, they were re-established in 1661. (n) At the present day many of the offences formerly tried by the ecclesiastical courts have been made by statute punishable at the common law, e.g. unnatural offences, witchcraft, bigamy, perjury, slander, brawling in churches, and the like, though there is no legal reason why other offences should not still be tried in the ecclesiastical courts. As a matter of strict law, it appears that a layman guilty of such offences as atheism, blasphemy, heresy, schism, or the like, might still have public (7) 4 Hen. VII. c. 13. (m) Steph., Hist. Crim. Law, ii. 401. |