Bishop's court

“ The bishop's council.
The only officer of higher dignity than the high sheriff was the chancellor of temporalities, who exercised a twofold function. He was the bishop's chief minister and head of the civil government, and he presided over the bishop's high court of chancery. Below this high tribunal there were two kinds of courts. The one was like the ordinary courts of quarter sessions, composed of justices of the peace, save that these justices were appointed by the bishop and punished breaches not of the king's peace but of the bishop's peace. ”

“ Where the king’s reeve sat, the bishop or the bishop’s reeve now sits; fines which went to the royal hoard now go to the minster; but a moot of free men still administers folk-right to the justiciables of the church. However, in course of time the change will have important effects. In the first place, it helps to bind up suit of court with the tenure of land. The suitor goes to the bishop’s court because he holds land of which the bishop is the lord. If, as will often be the case, he wishes to escape from the burdensome duty, he will pay an annual sum in lieu thereof, and here is a new rent. ”

“ It took its rise in times when the pretensions of the Church, high in themselves, were highly favoured by the secular power. The clergy was a distinct order, and to subject its members to the jurisdiction of the secular courts was deemed improper; so, when a clerk was seized under a charge of murder, or some other crime, the ordinary stepped forth and claimed him for the "Court Christian," whereto the whole [Pg 2] matter was at once relegated. There the bishop or his deputy sat as judge. There was a jury of twelve clerks before whom the prisoner declared his innocence on oath. ”

“ They should set patterns of all that is good and praiseworthy; their duty is to do justice and adjudicate in all matters pertaining to a Bishop's court, as a common court in Israel, and they ought to judge in all righteousness, fidelity, and truth. The Priests ought to be full of the Holy Ghost, and should be full of intelligence to act as watchmen over the people, trying to stop ill feelings, evil actions, etc. ”

“ Speaking generally, articles of decoration and embellishment not used in the services cannot lawfully be introduced into a church without the consent of the ordinary given by a faculty, the granting of which is subject to the judicial discretion of the chancellor or commissary, sitting as judge of the bishop’s court. ”

“ The Conqueror declared the union of civil and ecclesiastical jurisdiction to be mischievous, and provided that henceforth no bishop or archdeacon should sit in the hundred court; that all spiritual causes should be tried by the bishop in his own court and be determined according to the canons, and that if any one disobeyed the bishop’s summons and remained contumacious after excommunication, he should be brought to obedience by the king or the sheriff. ”

“ In the projected reconstruction the ultimate end, the restoration of facts, would always include these cardinal points. Every man and every woman in Christendom, and, by a due extension of "the kingdom of God," every man and every woman living, must be bound by law to appear, at the least annually, in the internal tribunal of the Church, the confessional. In order to this, every civil magistrate must be set in obvious and in practical subordination to the ecclesiastical magistrate or bishop, by the subjection of the civil court to the external tribunal of the Church, the ecclesiastical court. ”

“ But, on the other hand, if the judgment of the Privy Council really be only that the Archbishop shall exercise his jurisdiction, the two cases become parts of one uniform and harmonious system. It is some confirmation of these views also, that in the case of a Quare Impedit, when the fitness of a clerk is alone the question before the court of law, which it sometimes is, it is pretty clearly laid down that the fitness in issue before the court, is not the fitness at the time of the refusal by the Bishop, but the fitness at the time of the certificate of the Archbishop. ”

“ The principal provisions of the canons which deal with this matter are:
that a bishop condemned by the bishops of his province may appeal to the pope either on his own initiative or through his judges; that if the pope entertains the appeal he shall appoint a court of second instance drawn from the bishops of the neighbouring provinces; he may, if he thinks fit, send judges to sit with the bishops. There is nothing whatever to suggest that new privileges are being conferred. ”

“ As of old, he must be at least tonsured and without a wife living. At the Vatican Council, a desire was expressed that he should be a priest (ib.) . He should be a doctor in theology or a licentiate in canon law (ib. p. 378) . Whether a bishop is bound to appoint a vicar-general is still disputed (ib. p. 380; cf. supra; contra, Bouix, Inst. Juris Canon. De Judic. i. 405) . In 1831 the pope enacted that in all the dioceses of the then Pontifical States, the court of first instance for the criminal causes of ecclesiastics should consist of the ordinary and four other judges. ”

“ I submit that the Ecclesiastical Courts so constituted would be fitting tribunals for deciding any questions which might arise between the Church of England laity or their Churchwardens and the Archdeacon, upon the repair of the fabric; matters of fact being referred to a jury of five persons at the option of the parties, as in the County Courts, and points of law decided by the Bishop, without appeal, excepting upon questions certified by him, and these latter to be heard, and finally determined in the Metropolitan Court of the province. ”

“ The subject matter of the jurisdiction of Hellenic courts Christian seems to be confined to strictly spiritual discipline, mainly in regard to the professional misconduct of the clergy. Imprisonment may be inflicted in these last cases (ib.) . All matrimonial causes are heard by the secular tribunals (Lehr, op. cit. sec. 587) .
The bishop’s consistorial court, consisting of himself and four priests, has a limited jurisdiction in first instance. Such a court can only suspend for seven days unless with the sanction of the Holy Synod (Joyce, op. cit.) . ”

“ Under that law an ecclesiastical person, either priest or monk, who was charged with a felony could not be tried by a civil court but was delivered up to the bishop of his diocese for trial in an ecclesiastical court.
By the end of the sixteenth century Parliament had amended the benefit of clergy law so that every free male who could read and write, upon conviction of a first offense of felony might plead "benefit of clergy", and upon showing that he could read a verse of Scripture, have the penalty remitted. ”

“ The episcopal office confers upon the incumbent a share both of the highest power to ab- solve and of ecclesiastical jurisdiction since Christ's word concerning loosening and binding was addressed to all the Apostles, The Rota can also be appealed to as the court of the first instance, but only upon the special recommendation of the Signatura, which acts as a kind of court of cassation controlling and completing the Rota, for the reason that a direct appeal to the Rota would involve a circumvention of the apostolic right of the bishop. ”

“ Evans, 16 Q. B. 162, the main question for consideration was whether a sequestration ordered by a bishop was a proceeding simply in the nature of a distress to compel residence, or altogether or even in part in poenam for previous nonresidence. The court said (page 171) :
'If it be the latter, then the bishop ought to have given the incumbent an opportunity of being heard before it was issued ”

“ There is no absolute necessity for such deputies in the Courts held before the Bishops and Archdeacons. Originally each Bishop seems to have been the supreme ecclesiastical judge in his diocese, and I see no reason why, when questions of civil rights are removed from the Church tribunals, the Bishops and Archdeacons should not resume their functions of presiding in person over causes ecclesiastical. ”

“ The canon provides that any clerk having a complaint against another clerk must not pass by his own bishop and turn to secular tribunals, but first lay bare his cause before him, so that by the sentence of the bishop himself the dispute may be settled by arbitrators acceptable to both parties. Any one acting against these provisions shall be subject to canonical penalties. If any clerk have a complaint against his own bishop, he shall have his cause adjudicated upon by the synod of the province. ”

“ Besides the functions exercised in virtue of their order, bishops are also empowered by law to exercise a certain jurisdiction over all consecrated places and over all ordained persons. This jurisdiction they exercise for the most part through their consistorial courts, or through commissioners appointed under the Church Discipline Act of 1840. By the Clergy Discipline Act of 1892 it was decreed that the trial of clerks accused of unfitness to exercise the cure of souls should be before the consistory court with five assessors. ”

“ This is the most natural and harmless action of a bishop, for what spiritual act can take place without that exercise of his jurisdiction? Pronouncing a priest competent for the care of souls is analogous to the action in law of giving a brief to a barrister. What if the church should require a barrister to present himself to the bishop for approbation before he received such a brief? ”

“ Not only the bishops had to confirm, ordain to all orders, consecrate, anoint, impose penance, and excommunicate, but they had to decide land questions concerning lands in frank almoin, all probate and nullity of marriage cases, and to do all the legal work of a king’s baron besides. The judicial duties lay heavily upon him. He used to say that a bishop’s case was harder than a lord warden’s or a mayor’s, for he had to be always on the bench; they only sometimes. They might look after their family affairs, but he could hardly ever handle the cure of souls. ”

“ We demand, as a right which no one [pg 425] can dispute to us, that the bishops, the parish priests of the cathedral churches, and the directors of souls, be only appointed in accordance with the laws of the church and the agreement existing between the church and state.
“In accordance with these laws and agreements, the Catholic people and ourselves cannot consider as legal a director of souls or a teacher of religion one who has not been so named by his bishop; and we, the Catholic people and ourselves, cannot consider as legally recognized a bishop who has not been named by the Pope. ”

“ If any one should declare that he suspects the integrity of either a judge, a governor, a vice-governor, or any other official, and demands access to his superior, or shall even allege that he has suspicions of that superior himself, he shall not be subject to delay on this account, especially if he should be poor. But those who decide the case shall do so with the bishop of the diocese, and their opinions and judgment shall be reduced to writing, and be signed by them ”

“ But if any magistrate, invested with judicial functions, has either decided unjustly, or has imposed a wrongful sentence upon any one, then the bishop in whose diocese this has been done, shall summon the judge who is alleged to have acted unjustly, and shall render a just decision, sitting along with him, in the presence of ecclesiastics, or other persons of respectability. ”

“ But it would have been more satisfactory if, in reviving a long-disused power, the Archbishop had been able to go behind the Watson case, and to show more certainly that the jurisdiction which he claimed and proposed to exercise in conformity with that case had, like the jurisdiction of other great courts of the Church and realm, been clearly and customarily exercised long before that case.
The appearance of this great tribunal among us, a distinctly spiritual court of the highest dignity, cannot fail to be memorable. It is too early to forecast what its results may be. ”

“ From these occasional and general absences of theirs, an opinion grew up by degrees, and now is established law, that there is a material difference between bishops and lay lords, in respect to their nobility. In truth, that they are not peers to each other, and consequently that a bishop cannot sit in judgment on the life of a peer, neither is he to be tried by the peers, but by a jury of commoners. ”

“ A Presbytery having tried a minister for misconduct, adjudged (partially) against him; and the Synod on appeal reversed its action. Upon appeal to the General Assembly, that body took up the case de novo and passed a sentence more extensive than that of the Presbytery. The minister, whose civil rights were affected by this judgment, applied to the civil court for its 'reduction,' on the ground that the Assembly being confined to an appellate power by the constitution of the church, had transcended its authority by passing an original sentence upon him. ”

“ When we know that a certain form of undertaking was in general use, and that it was enforced by the clergy in their own courts, a very little evidence is enough to make us believe that in a new court, also presided over by a clergyman and with no substantive law of its own, the idea of enforcing it well might have been entertained, especially in view of the restrictions which the civil power put upon the church. ”