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. “Officialités,” Fournier, pp. 65-125); or, after the 14th century, where both parties were clerks. In regard to crimes delicts (délits) 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 délits 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. “Délits,” “Cas privilégié,” “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,” “Hérésie”). 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, Traité 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.
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 Ecclesiastical jurisdiction in England.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
