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
