21 & 22 Vict. (1858) c 93 the secular court for divorce and matrimonial causes was declared competent to determine questions of legitimacy, the validity of marriages and the right to be deemed natural-born subjects." Thus the civil jurisdiction of the ecclesiastical courts as to the laity is confined at present to a very small field, 18 and is, furthermore, restricted therein by the competence claimed (as in the middle ages) by the secular courts on the most various grounds.

17

The penal jurisdiction of the ecclesiastical courts has likewise not been abolished in principle so much as driven back step by step.

5 Eliz. (1562/3) c 23 made the writ de excommunicato capiendo more effective by directing that it should be returnable in the court of king's bench; the latter, if the accused were not found, was to award a capias against him; forfeitures were fixed for not appearing on a first, second, third etc. capias. The same act, on the other hand, limited the competence of the ecclesiastical courts in criminal matters, in that it laid down that the party concerned might plead that all pains and forfeitures against him were void if the excommunication were not for heresy, or for refusing (1) to have his child baptized, (2) to receive the communion as it is now commonly used in the church of England, (3) to attend divine service according to the forms of that church, or for incontinency, usury, simony, perjury in the ecclesiastical court, or idolatry.19 The limitations corresponded in the main to the law as it had been hitherto; new, however, is it that the party may invoke the decision of the secular courts as to the compe

if this Act had not been passed.-To deal with all such matters there was instituted a secular Court for Divorce and Matrimonial Causes, the chief judge of which was, however, identical with the judge of the court of probate. The constitution and procedure of this court were frequently altered in unimportant points. Cf. 22 & 23 Vict. (1859) c 61; 23 & 24 Vict. (1860) c 144; 25 & 26 Vict. (1862) c 81. See more in Gneist, Verwaltungsrecht § 157. Probate and matrimonial courts have since 36 & 37 Vict. c 66 Judicature Act 1873 been merged in the Probate, Divorce and Admiralty Division of the supreme court.According to Phillimore 1207, note k, the ecclesiastical court of the isle of Man still retains the old jurisdiction of the ordinary as to testaments and marriages. -During the first revolution an act of the Barebone parliament, 24th Aug. 1653 (confirmed for a limited time by act of the parliament of 1656 c 10), jurisdiction in matrimonial causes was vested in temporal courts.

17 An Act to enable Persons to establish Legitimacy and the Validity of Marriages, and the Right to be deemed natural-born Subjects.-The competence of the ecclesiastical courts is not mentioned in the act.

And

18 According to Phillimore 1076, civil jurisdiction as to the laity relates now only to the fabric and ornaments of the church, the churchyard and the churchwardens. Gneist, Verwaltungsrecht § 171 mentions a few further cases. 19 s 7: yf in the Significavit (i.e. the communication of the Court of Chancery to the sheriff touching the request of the bishop, on which the capias follows) yt bee not conteyned that Thexcommunicatyon dothe proceade upon some Cause or Contempte of some originall Matter of Heresie, or refusing to have his or their Childe baptysed, or to receave the Holy Communyon as yt commonlye ys nowe used to bee receyved in the Churche of Englande, Or to come to Dyvyne Service nowe commonlye used in the said Churche of Englande, or Errour in Matters of Religyon or Doctryne nowe receyved and alowed in the sayd Churche of Englande, Incontinencye Usurye Symonye Perjurye in the Ecclesiasticall Courte or Idolatrye, That then all and every paynes and forfaitures lymitted agaynst suche persons excommunicate by this Estatute, by reason of suche Significavit wanting all the Causes afore mentioned, shalbee utterly voyde in Lawe and by waye of Plea to bee alowed to the partie greved:

tence of the ecclesiastical, even after the issue of the writ de excommunicato capiendo.

Penal powers against heresy were restricted in the sixteenth and seventeenth centuries, and still further after the end of the seventeenth, without, however, being wholly annulled.20

Serious offences against morality have been made liable to punishment in the temporal courts; the right of the ecclesiastical courts to deal with such offences has never been formally annulled, but, as against laymen, it has long been in abeyance; against clerks only may the ordinary ecclesiastical punishments be employed.21

The jurisdiction of the ecclesiastical courts in suits for defamation was extinguished by 18 & 19 Vict. (1855) c 41.22

23

Blasphemy is punished by the secular court.2 29 Car. II (1677) c 9 left the spiritual courts still competent in respect thereto; 2 how far their power has been taken away by the various toleration acts is doubtful.25

23 & 24 Vict. (1860) c 32 abolished the competence of the ecclesiastical courts as against laymen for brawling in church, and fixed a civil penalty for riotous, violent or indecent behaviour in any church or churchyard of the church of England and Ireland, or in any duly certified place of religious worship, or in any burial ground. 26

20 Cf. § 19, nr. notes 19 ff., § 54 nr. notes 62-65.

21 Errington, The Clergy Discipline Act, 1892, and Rules and the Church Discipline Act, 1840, with notes. London, 1892, p. 3. The royal commission on ecclesiastical courts, 1832, reported: it is competent to institute criminal proceedings for incest, adultery and fornication: but in the Arches Court and the Consistory Court of London no such suit has been brought for a long series of years; in some of the country courts they have been very rare. According to the report of a committee of the lower house of the convocation of Canterbury (appended to Chron. of Conv. 1872), in 1828 there were proceedings in a case of incest in the Arches Court; in 1829 in the Chancery Court of York for incontinence; in 1830 for immoral conduct.

According to 27 Geo. III (1787) c 44 s 2 suits in ecclesiastical courts for fornication, incontinence or brawling in church had to be commenced within eight months; prosecution for fornication was not allowed after the parties offending had intermarried.

The right to inflict criminal punishments upon clerks for offences against morality, which belonged to the spiritual court under 1 Hen. VII c 2 (cf. § 60, note 29), was annulled, that act being repealed by 3 & 4 Vict. (1840) c 86 Church Discipline Act. Only power of disciplinary punishment was retained. 22 An Act for abolishing the Jurisdiction of the Ecclesiastical Courts of England and Wales in Suits for Defamation. s1: From and after the passing of this Act it shall not be lawful for any Ecclesiastical Court in England or Wales to entertain or adjudicate upon any Suit for or Cause of Defamation. -By 27 Geo. III (1787) c 44 s 1 suits in ecclesiastical courts for defamatory words had to be commenced within six months.

23 Blasphemy is punishable by common law. Cf. further the statutes: 3 Jac. I (1605/6) c 21; 21 Jac. I (1623/4) c 20, prolonged by 3 Car. I (1627) c 5 s 3; ordinances of the rump parliament, 28th June and 9th Aug. 1650; 6 & 7 Gul. & Mar. (1694) c 11. 9 Gul. III (1697/8) c 35 An Act for the more effectual suppressing of Blasphemy and Profaneness threatens civil disadvantages if any Person or Persons having been educated in or at any time having made Profession of the Christian Religion within this Realm shal by writing printing teaching or advised speaking deny any one of the Persons in the Holy Trinity to be God or shal assert or maintain there are more Gods than One or shal deny the Christian Religion to be true or the Holy Scriptures of the Old and New Testament to be of Divine Authority. With the latter act cf. 53 Geo. III c 160, repealed as obsolete by 36 & 37 Vict. (1873) c 91. 24 29 Car. II c 9 s 2.

25 Phillimore, Eccles. Law 1084.

26 Cf. 5 & 6 Ed. VI c 4 touching the jurisdiction of the ecclesiastical court in

28

27

In cases of perjury acts of Elizabeth reserved to the ecclesiastical courts such jurisdiction as they had before possessed. The competence of such courts was, however, only recognized for cases in which the perjury was committed in a spiritual court." The opinion now is that perjury in any court may be punished by indictment or information in the temporal courts. The civil penalties against usury were regulated anew under Henry VIII and Edward VI, without any mention being made of proceedings before the ecclesiastical court.30 When in the reign of Elizabeth the law was again amended, punishment under ecclesiastical, law was retained side by side with the civil penalties, but only if the interest charged exceeded ten per cent.31 By

cases of brawling in church. 23 & 24 Vict. c 32 repeals that act as far as refers to laymen; it is further laid down in s 1: That it shall not be lawful for any Ecclesiastical Court in England or Ireland to entertain or adjudicate upon any Suit or Cause of Brawling commenced after the passing of this Act against any Person not being in Holy Orders -As early as 1 Gul. &

Mar, sess. 1 (1688) c 18 s 15 penalties were fixed for disturbing a congregation or misusing a preacher; similarly, in 52 Geo. III (1812) c 155 s 12, the terms there being somewhat wider; s 13 contains a proviso for the ecclesiastical jurisdiction of the church of England.

27 5 Eliz. (1562/3) c 9 An Act for the Punyshement of suche persones as shall procure or commit any wyllful Perjurye. s 1 fixes a penalty for procuring a witness to commit perjury (32 Hen. VIII c 9 s 3 cited), or for committing perjury in the king's courts, people's courts or private courts. In s 1 the ecclesiastical courts are not mentioned. s5 runs: Provided alwayes, That this Acte nor any thing therin conteyned shall not extende to any Spirituall or Ecclesiasticall Courte or Courtes within this Realme of Englande or Wales or the Marches of the same; but that all and everye suche Offendour or Offendours as shall offende in fourme aforesaid shall and maye bee punished by suche usuall and ordynarye Lawes as heretofore hathe been and yet ys used and frequented in the said Ecclesiasticall Courtes; . . By s 7 the authority to punish perjury given by 11 Hen. VII c 25 is reserved. The act is only to continue until the end of the next parliament.

28 By 5 Eliz. (1562/3) c 23 s 7 (cf. above, note 19) the judgment of the ecclesiastical court could only be carried into effect if the perjury had been committed in such a court.

29 Cf. Phillimore, Eccles. Law 1085.

30 37 Hen. VIII (1545) c 9 repeals as obscure the earlier acts against usury. If more than 10 per cent. be taken, sentence of imprisonment, fine or forfeiture is to be pronounced by the king's courts. 5 & 6 Ed. VI (1551/2) c 20 repeals the preceding act. No interest whatever may be taken; otherwise proceedings will follow before the king's courts.

s 4:

for Gayne

31 13 Eliz. (1571) c 8 An Acte agaynst Usurie. s 1: 5 & 6 Ed. VI c 20 is repealed, and 37 Hen. VIII c 9 revived. as all Usurie Loane and forbearing of Monye. (=charging of any interest) being forbydden by the Lawe of God is synne and detestable, where the interest charged is not more than 10 per cent. the gain is forfeited, all such forfeitures to be recovered by the process prescribed in 37 Hen. VIII c 9. s 8: Provided alwayes, . That yf anye person or persons shall offend contrary to the saide Statute 37 Hen. VIII c 9, that then all and every suche Offendour and Offendours shall and maye also be punished and corrected according to the Ecclesiasticall Lawes heretofore made agaynst Usurie;. And that all and every person and persons offendinge in Usurie Shyftes or Chevysaunce agaynst this present Acte, and not taking or receyvinge but onely after the Rate of Tenne Poundes in the Hundred or under for a yeare, shalbe onely punyshed by the Paynes and Forfaytures provyded and appoynted by this Acte agaynst suche as shall not take or receave over and above the Rate of Tenne Poundes in the Hundred for a yere, and not otherwyse. s 9: The validity of this act is for five years and then to the end of the first session of the next parliament The time was prolonged by 27 Eliz. (1584/5) c 11 s 1, 29 Eliz. (1586) c 5 s 2,

later enactments (of Jas. I, Charles II and Anne) the penalties for taking interest at ten per cent. were imposed for taking eight, then six, then five. But whether the ecclesiastical punishments were also applicable under these altered circumstances is not plain from the acts in question.3

33

Against simony 31 Eliz. (1588/9) c 6 was the first act to allow procedure before civil courts, but it left the powers of the ecclesiastical courts untouched." The secular courts are inclined to leave the question whether there have been simoniacal practices in any given case to the determination of the spiritual courts.34

Thus in theory the ecclesiastical courts still retain a considerable sphere of competence in criminal causes; but in practice their jurisdiction is seldom or never appealed to against laymen.35 Against officers of the church their punitory powers are still exercised, but as disciplinary rather than punitory.

53 Geo. III (1813) c 127 further weakened ecclesiastical jurisdiction, in that it circumscribed more closely and modified the harshness of the measures which the spiritual court had at its disposal to enforce its judgments. It allowed for the future excommunication to be pronounced only as a spiritual censure in matters within. ecclesiastical cognizance, and only in definitive sentences or final 'interlocutory decrees.' Thus excommunication ceased to be a punishment, especially for not answering to a summons, for disobedience to other orders of the spiritual court, and for contempt. In these latter cases, instead of the previous writ de excommunicato capiendo, a writ de contumace capiendo was to be sought from the

31 Eliz. (1588/9) c 10 s 1, 35 Eliz. (1592/3) c 7 s 1; the act was made perpetual by 39 Eliz. (1597/8) c 18.

32 21 Jac. I (1623/4) c 17 An Acte agaynst Usury. s 1: In future only 8 per cent. may be charged; contracts in breach of this act are void; penalty thrice the sum lent. s 3: Act valid for seven years [made perpetual by 3 Car. I (1627) c5 s 2]. s 4: provided that no wordes in this Law contayned shalbe construed or expounded to allow the practise of Usurie in point of Religion or Conscience.

12 Car. II (1660) c 13 An Act for restraining the takeing of Excessive Usury reduces (in agreement with an ordinance of the rump parliament, 8th Aug. 1651) the permissible interest to 6 per cent. (All' acts of the irregularly summoned parliament of 12 Car. II were confirmed by 13 Car. II (1661) st. 1 c7; the acts confirmed are cited singly, but this is not among them.)

13 Ann. (1713) c 15 An Acte to reduce the Rate of Interest fixes 5 per cent. as the highest allowable.

On later secular legislation touching usury see Blackstone, Commentaries IV, 156 f.

33 An Acte against Abuses in Election of Scollers and presentacions to Benefices. s 8: Provided alwaies, That this Acte or any Thinge herein conteyned, shall not in any wise extende to take awaye or restrayne any Punyshment Payne or Penaltie lymitted prescribed or instituted by the Lawes Ecclesiasticall for any the Offences before in this Acte mencioned, but that the same shall remayne in force and may be putt in due execucion as it might be before the makinge of this Acte.

34 Phillimore, Eccles. Law 1133 ff.

35 Phillimore v. Machon, 1 P. D. p. 487, Dictum of the dean of the arches, lord Penzance (cited in Errington, l.c. p. 3): It cannot, I think, be doubted, that a recurrence to the punishment of the laity for the good of their souls by ecclesiastical courts, would not be in harmony with modern ideas, or the position which ecclesiastical authority now occupies in the country.

temporal authorities, but without change of effect or procedure. In the cases in which excommunication was still allowable, every civil penalty or incapacity resulting from excommunication was abolished, excepting imprisonment under sentence of the ecclesiastical court for not more than six months or until absolution by the court before the expiry of that time.37 Procedure upon

a writ de contumace capiendo was regulated by later acts.38

B. THE SEVERAL COURTS."

§ 62.

a. Royal court.

After that the ecclesiastical courts, up to and including the

36 53 Geo. III c 127 An Act for the better Regulation of Ecclesiastical Courts in England; and for the more easy Recovery of Church Rates and Tithes. s 1: That, from and after the passing of this Act, Excommunication, together with all Proceedings following thereupon, shall in all cases, save those hereafter to be specified, be discontinued, throughout that Part of the United Kingdom of Great Britain and Ireland called England; (then follow the regulations as to the writ de contumace capiendo). s 2: Provided always. That nothing in this Act contained shall prevent any Ecclesiastical Court from pronouncing or declaring Persons to be Excommunicate in definitive Sentences, or in interlocutory Decrees having the Force and Effect of definitive Sentences, such Sentences or Decrees being pronounced as Spiritual Censures for Offences of Ecclesiastical Cognizance

37 53 Geo. III c 127 s 3: That no Person who shall be so pronounced or declared Excommunicate, shall incur any Civil Penalty or Incapacity whatever, in consequence of such Excommunication, save such Imprisonment, not exceeding Six Months, as the Court pronouncing or declaring such Person Excommunicate shall direct, and in such case the said Excommunication, and the Term of such Imprisonment, shall be signified or certified to His Majesty in Chancery, in the same manner as Excommunications have been heretofore signified, and thereupon the Writ de Excommunicato Capiendo shall issue, and the usual Proceedings shall be had, and the Party being taken into Custody shall remain therein for the Term so directed, or until he shall be absolved by such Ecclesiastical Court.

For Scotland 10 Ann. (1711) c 10 had already abolished all civil consequences of ecclesiastical (i.e. pronounced by the presbyterian state church) excommunication. s 12: That no Civil Pain or Forfeiture or Disability whatsoever shall be in any ways incurred by any Person or Persons by reason of any Excommunication or Prosecution in order to Excommunication by the Church Judicatories in Scotland and all Civil Magistrates are hereby expressly prohibited and discharged to force or compel any Person to appear when summoned or to give Obedience to any such Sentence when pronounced

38 2 & 3 Gul. IV (1832) c 93 An Act for enforcing the Process upon Contempts in the Courts Ecclesiastical of England and Ireland.-3 & 4 Vict. (1840) c 93 An Act to amend the Act for the better Regulation of Ecclesiastical Courts in England.

Blackstone, Commentaries III, 64 ff.-Coke, Institutes IV, 321 ff.-Gneist, Englisches Verwaltungsrecht § 171.-Phillimore, Eccles. Law 1201 ff.-Report of the Royal Commission on Ecclesiastical Courts, 1883, I, pp. xx f., xxvi ff. (Parliamentary Reports vol. XXIV); on Court of Delegates and Commission of Review: Stubbs, Historical Appendix I pp. 47 ff. in Report just cited.-Stephen, New Commentaries, 11th Ed. III, 325 ff.