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 arrêts, 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.
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 Civil jurisdiction.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
