Ecclesiastical Courts

Canon Law

Canon law is Roman Catholic Church ecclesiastical law.  It comprises decrees of the Church council’s writings, rules, and epistles.

William the Conqueror separated the ecclesiastical and civil jurisdiction of courts.  Sheriffs and laypersons could not participate in disputes and church affairs and clergy, bishops and archdeacons could not participate in pleas at the courts of the hundred or the shire.

12th-century codification of Canon law was published as part of an attempt to establish a universal jurisdiction.  The head of the jurisdiction was the papal court in Rome in which supreme judicial power was vested.

The Reformation represented the most serious and culmination of disputes between church and state.  Ultimately King Henry VIII broke with the Roman church over the issue of papal jurisdiction.

Jurisdiction

The Church claimed jurisdiction in all matters affecting its clergy and the spiritual welfare of the laity based on Canon law. Concordats were agreed in Middle Ages to limit conflict between churches and state jurisdiction.

Ecclesiastical courts known as courts Christian exercise jurisdiction over the clergy and church property.  They claimed the right to try clergy for felonies.  Misdemeanors and noncriminal matters were left to the civil court.

The courts also heard matters concerning church buildings and consecrated ground.  Similarly disputes regarding tithes were heard in the church courts.

The courts heard matters arising out of jurisdiction, offences against religion and morality.  This included blasphemy, heresy contempt of clergy, defamation relative to church and clergy.

Procedure in the ecclesiastical courts was in Latin and relatively slow.  The action commenced by a bill.  There was no jury. In the lower ecclesiastic courts, clergy with Canon law learning appointed by bishops known as chancellors, heard the matter.

The church courts imposes a variety of sanctions.  Some it could be redeemed by penance  in lieu.  Greater excommunication was the most severe similar to outlawry.  It imposed fines, exclusion from church  and lesser communication.

Organisation Pre-Reformation

There were three metropolitan courts.  The court of Canterbury heard appeals from diocese in its province.  It had original jurisdiction in other areas. There was a similar court in York with an Archbishop’s court of chancery.  There was a court of audience in each province which acted as court of appeal.  The prerogative courts of Canterbury and York dealt with wills and probate matters in several dioceses.

The Consistory courts was  both an appeal court and a court of original jurisdiction.  It was presided over the bishops deputy, often his chancellor.  Bishops could hear the matter personally. The court heard matters relating to wills and probate.

Prior to the Reformation, the papal court was an ultimate appeal court exercising both original and appellate jurisdiction.  The parties could refer a matter to that court at any stage.

Organisation after Reformation

After the Reformation, appeals to Rome were prohibited.  An appeal was from the Archbishop’s court to the King in chancery.  The King appointed  delegates to hear the appeal. The delegates were referred to as the high court of delegates.  There were no permanent judges and the court was ad hoc for each case.  The judges were ecclesiastical lawyers and in some cases bishops.

The Act of Supremacy and uniformity were to be enforced throughout the kingdom.  The commissioners became known as the Court of High Commissioner. The judges were ecclesiastical lawyers and doctors of civil law.  It should comprise one of the three members. It could fine, imprison and excommunicate.

The procedure was based on common law.  There was the equivalent of a claim and defence.  Parties were examined on oath.

The House of Commons in a Petition of Grievances in 1610 sought to limit the jurisdiction so that it was limited clearly to ecclesiastical and spiritual a matters.  Letters patent issued in 1611 to find out more precisely the categories of crime under its jurisdiction.  The court was abolished in 1641 at the outset of the English Civil War by an Act which recited the wrongs and oppressions it had inflicted.

By the 18th century the court comprised three common law judges and three civil law judges.  The courts could be challenged by a Royal commission of review.  The jurisdiction of the court was taken over by the Privy Council under the Judicial Committee Act 1833.

The Court of High Commission originated from commissions which were established to enforce the religious policy after the Reformation.  Elizabeth I appointed ecclesiastical commissioners with powers to reform address, correct all errors, the claims, abuses spiritual and ecclesiastical.

Dissolution of Marriage

The courts have jurisdiction in ecclesiastical matters which covered nullity of marriage, divorce a mensa et thoro (judicial separation based on adultery or cruelty. Divorce by dissolution of marriage which is not possible.

After the Reformation, the English ecclesiastical courts assumed the power to grant to dissolve marriage.  The Marquis of Northampton case 1532 was upheld by the Court of Bishops.

Dissolution of marriage could also be obtained by private bill in parliament.  In this initial stages, the petitioner had to obtain a decree of divorce a mensa et thoro.  The male had the right to recover damages in an action for criminal conversation. The courts granted orders restitution of conjugal rights on the basis of dissertion.

Wills & Probate

The Archdeacon was the bishop’s deputy.  He could enquire into the moral conduct of both laity and clergy.  He could impose fines and penances.  There was appeal to the consistory court.

Over time the jurisdiction of the ecclesiastical courts in matters of moral and faith decreased.  The jurisdiction remained around three areas namely matters affecting the clergy, wills, probate and matrimonial matters.

Ultimately in 1857, both probate and wills jurisdiction were passed to a probate court by the court of Probate Act 1857.  The divorce court was established by the Matrimonial Causes Act 1857 and took over divorce. Ecclesiastic courts continued to exist in the consistory court dealing with Established Church matters.