this later stage the archbishop appears to have frequently sat in person with the official as his assessor. The competence of the court of audience was apparently the same as that of the appeal court. Courts of audience were practically obsolete in the beginning of the eighteenth century.

C.

6

The (former) prerogative courts.

A court of this name was found in each of the two provinces from the later middle age to the middle of the nineteenth century. The prerogative court was originally a division of the ordinary archiepiscopal court, subsequently becoming independent. The judge, though sometimes official principal as well, received a distinct commission from the archbishop. The court had jurisdiction in testamentary and probate cases which, exceptionally, belonged to the archiepiscopal not the diocesan court, viz.-.

1. When the testator had left bona notabilia i.e. above five pounds (in the bishopric of London, above ten pounds) in another diocese than that in which he died;

2. When the testator was a bishop.

By 20 & 21 Vict. (1857) c 77 jurisdiction in testamentary matters and matters of probate is now vested in secular courts.

§ 64.

c. Episcopal courts.

a. Consistory courts.

In every see there is a consistorial court over which presides a judge (official principal ') appointed by the bishop. The post has long been filled (apart from a few exceptional cases) in all the bishoprics of England by the same person as is named vicar-general, that is, the representative of the bishop in the current business of administration. The holder of the combined offices of vicar-general and official principal is called chancellor. Hence the consistorial court is sometimes termed the chancellor's court.

This court is concurrently with the archidiaconal court competent

6 Cf. on the Courts of Audience Phillimore, Eccles. Law 1201, the writers cited by Phillimore 1204, and the Report of the Eccles. Courts Commission, 1883, I, p. xx. Coke, Inst. IV, 337 says of the Court of Audience: This Court is kept by the archbishop in his palace, and medleth not with any matter between party and party of contentious jurisdiction, but dealeth with matters pro forma, as confirmations of bishops elections, consecrations and the like, and with matters of voluntary jurisdiction, as the granting of the guardianship of the spiritualities sede vacante of bishops, admission and institution to benefices, dispensing with banes of matrimony, and suche like. The account, however, is probably not quite accurate.

Report of the Eccles. Courts Commission, 1883, I, p. xxiii.

1 Cf. § 38, notes 7, 8.

as a court of first instance; but it also serves as a court of appeal from the latter. From it appeal is to the archiepiscopal court.

The consistorial court has been deprived of a large part of its competence by the church discipline act, 3 & 4 Vict. c 86, and the public worship act, 37 & 38 Vict. c 85, which assign disputes which come under them to the bishop, to special commissions, or to the provincial court. The 'Clergy Discipline Act,' 55 & 56 Vict. (1892) c 32, has, however, again given the chancellor the presidency in proceedings against a clergyman for immorality. The chancellor alone is to decide any question of law; but if any question of fact has to be determined and either party to the case so requires, five assessors are chosen as members of the court.2

เ

3

For the diocese of York there is a consistorial court at York; 3 for the diocese of Canterbury, only a court of the commissary of the archbishop. In Canterbury there is also a Court of Peculiars,' for a number of parishes exempt from the jurisdiction of the bishops and immediately subject to the archbishop.5

b. Courts of episcopal commissaries.

In rare instances episcopal commissaries are appointed to exercise administration and jurisdiction within definite parts of a diocese. The commissaries are practically equal to the archdeacons; but their powers rest not on their own rights as holders of certain offices, but on the special commission granted by the bishop. It has been ruled that appeal from the court of the commissary goes, not like appeal from the archdeacon's court to the consistorial court, but immediately to the archiepiscopal court.

The bishop may appoint commissaries, or commissions consisting of several members, to perform judicial acts in all cases in which he is himself competent. The commission issued is for the particular cause, not general. The chancellor, like any other person, may be a special commissary.

§ 65.

Archidiaconal courts.

The process by which in the middle ages the archdeacons grew from assistants of the bishop for the time being to be independent officers, had as a consequence that the jurisdiction which they originally exercised in the name and as representative of the bishop came to be regarded as naturally attaching to the office. Thus most archdeacons in England obtained a jurisdiction which covered, for

On the question how far the bishop may sit instead of his chancellor see § 36, note 9.

The office of judge is usually given to the archiepiscopal vicar-general.
Phillimore, Eccles. Law pp. 1201, 1207.

5 Stephen, New Commentaries 11th Ed. III, 331: a branch of the court of Arches.

the most part, the same matters as that of the consistorial courts.1 Where this competence of the archdeacon's court had not arisen or had been only incompletely developed, it was established to the full extent by 6 & 7 Gul. IV (1836) c 77.2 As judge in such a court the archdeacon may officiate in person or through an 'official' appointed by him. Appeal is to the consistorial court.3

§ 66.

Other ecclesiastical courts.

a. Chapter courts.

Some chapters had down to the middle of the present century jurisdiction in various exempt districts. (1) As the chapter is not subject to the archdeacon it has also frequently a jurisdiction, corresponding to the archidiaconal, for the precincts of the chapter church. Most such rights are now obsolete; though the chapters in certain cases perhaps still possess some small jurisdiction as to matters connected with the fabric and interior arrangements of the cathedral. But 37 & 38 Vict. (1874) c 85, establishing as it does other authorities solely competent to deal with such matters, has left the competence of the chapters of a shadowy nature. Some deans and chapters still preserve their 'officials,' who act, however, not as judges but as legal advisers in matters affecting the interests of the chapter. (2)

b. Rural dean's court.

Some rural deans about the twelfth and thirteenth centuries exercised in minor matters independent jurisdiction in their districts. (3) But this jurisdiction was afterwards absorbed by the archdeacon's court; and but few traces of it have survived until the nineteenth century. (*)

1 Cf. § 42.

2

s 19:

enacted, That all Archdeacons throughout England and Wales shall have and exercise full and equal Jurisdiction within their respective Archdeaconries, any Usage to the contrary notwithstanding.

3 In the Isle of Man an act of the Insular Legislature in 1874 abolished the voluntary and contentious jurisdiction of the archdeacon's court and transferred it to the courts of the bishop. Supplement to Chron. of Conv. Cant. 1885, No. 183 p. 17 note. Report of the Ecclesiastical Courts Commission, 1883 II, 322.

(1) It has been decided, Parham v. Templar (in 1820; Phillimore, Eccles. Reports III, 223 ff.) that appeals from the judgment of the chapter court when acting as the court of an exempt district go to the archiepiscopal court of appeal.

(2) Phillimore, Eccles. Law 1203.

(3) Cf. § 43, note 6.

(4) Here belong, e.g. the jurisdiction of the dean in Jersey and Guernsey, established by the canons of 1623, Phillimore 1202, note s; also, the independent jurisdiction of the dean of the Arches, the dean of Bocking and the dean of Croydon over exempt parishes. Cripps, Law relating to the Church Ed. 1886, p. 99.-On the jurisdiction of the dean of Norwich down to the reformation cf. Hudson (for Selden Society, 1892), Leet jurisdiction in the City of Norwich, Introduction p. xci.

APPENDIX.

I. Ordinance of William I touching the competence of

ecclesiastical courts."

Willelmus, gratia Dei Rex Anglorum, R. Bainardo et G. de Magnavilla et P. de Valoines ceterisque meis fidelibus de Essex et de Hertfordschire et de Middelsex,' salutem.

§ 1. Sciatis vos omnes et ceteri mei fideles, qui in Anglia manent, quod episcopales leges, quae non bene nec secundum sanctorum canonum praecepta usque ad mea tempora in regno Anglorum fuerunt, communi concilio et consilio archiepiscoporum et episcoporum et abbatum et omnium principum regni mei emendandas judicavi.

§ 2. Propterea mando et regia auctoritate praecipio, ut nullus episcopus vel archidiaconus de legibus episcopalibus amplius in hundret placita teneant, nec causam, quae ad regimen animarum pertinet, ad judicium secularium hominum adducant, sed quicunque secundum episcopales leges de quacumque causa vel culpa interpellatus fuerit, ad locum, quem ad hoc episcopus elegerit vel nominaverit, veniat, ibique de causa vel culpa sua respondeat, et non secundum hundret, sed secundum canones et episcopales leges, rectum Deo et epis. copo suo faciat.

§ 3. Si vero aliquis per superbiam elatus ad justitiam episcopalem venire contempserit vel noluerit, vocetur semel, secundo, et tertio; quodsi nec sic ad emendationem venerit, excommunicetur; et si opus fuerit ad hoc vindicandum, fortitudo et justitia regis vel vicecomitis adhibeatur. Ille autem qui vocatus ad justitiam episcopi venire noluerit, pro unaquaque vocatione legem episcopalem emendabit.

§ 4. Hoc etiam defendo et mea auctoritate interdico, ne ullus vicecomes aut praepositus seu minister regis, nec aliquis laicus homo, de legibus, quae ad episcopum pertinent, se intromittat, nec aliquis laicus homo alium hominem sine justitia episcopi ad judicium adducat. Judicium vero in nullo loco

Another MS. has also been preserved. The heading therein runs: W., gratia Dei Rex Angliae, comitibus, vicecomitibus et omnibus Francigenis et Anglis, qui in episcopatu Remegii episcopi terras habent, salutem.-In the middle of the thirteenth century there was also known an Anglo-Saxon form of the document printed in the text. Liebermann in The Athenaeum, Sept. 1893, p. 322.

a Printed after Schmid, Gesetze der Angelsachsen, p. 357. Spelman, who only knew the form the heading of which is given in note 1, supposes (Conc. II, 15) that the ordinance was issued circ. 1085, because it is inter privilegia Episc. Lincoln. postquam translatus erat Episcopatus; Hardy, Syllabus to Rymer, also assigns it to the year 1085. An earlier date (say, soon after the appointment of Lanfranc, 1070) is supported by the words usque ad mea tempora in § 1; moreover, the provision printed in § 60, note 2, if really proceeding from a council of Winchester in 1076, presupposes an earlier date, in that it implies that William's ordinance had already been issued; perhaps the letter printed in § 60, note 83 also points to a time before 1080.

H.C.

465

H H

portetur, nisi in episcopali sede, aut in illo loco, quem ad hoc episcopus constituerit.

II. Charter of Stephen, 1136."

Ego Stephanus Dei gratia assensu cleri et populi in regem Anglorum electus, et a Willelmo Cantuariensi archiepiscopo et sanctae Romanae ecclesiae legato consecratus, et ab Innocentio sancte romane sedis pontifice confirmatus, respectu et amore Dei sanctam ecclesiam liberam esse concedo et debitam reverentiam illi confirmo.

Nihil me in ecclesia vel rébus ecclesiasticis Simoniace acturum, vel permissurum esse promitto. Ecclesiasticarum personarum et omnium clericorum, et rerum eorum justitiam et potestatem et distributionem bonorum ecclesiasticorum in manu episcoporum esse perhibeo et confirmo. Dignitates ecclesiarum privilegiis earum confirmatas, et consuetudines earum antiquo tenore habitas, inviolate manere statuo et concedo. Omnes ecclesiarum possessiones et tenuras quas die illa habuerunt qua Willelmus rex avus meus fuit vivus et mortuus, sine omni calumniantium reclamatione, eis liberas et absolutas esse concedo. Si quid vero de habitis vel possessis ante mortem ejusdem regis, quibus modo careat ecclesia, deinceps repetierit, indulgentiae et dispensationi meae, vel restituendum vel discutiendum reservo. Quaecunque vero post mortem ipsius regis liberalitate regum vel largitione principum, oblatione vel comparatione, vel qualibet transmutatione fidelium eis collata sunt, confirmo. Pacem et justitiam me in omnibus facturum, et pro posse meo conservaturum eis promitto.

Forestas quas Willelmus avus meus et Willelmus avunculus meus instituerunt et habuerunt, mihi reservo. Ceteras omnes quas rex Henricus superaddidit ecclesiis et regno quietas reddo et concedo.

Si quis episcopus vel abbas vel alia ecclesiastica persona ante mortem suam rationabiliter sua distribuerit vel distribuenda statuerit, firmum manere concedo. Si vero morte praeoccupatus fuerit, pro salute animae ejus ecclesiae consilio eadem fiat distributio. Dum vero sedes propriis pastoribus vacuae fuerint, ipsas et earum possessiones omnes in manu et custodia clericorum vel proborum hominum ejusdem ecclesiae committam, donec pastor canonice substituatur.

Omnes exactiones et injustitias et mescheningas, sive per vicecomites vel per alios quoslibet male inductas, funditus exstirpo.

Bonas leges et antiquas et justas consuetudines, in murdris et placitis et aliis causis, observabo, et observari praecipio, et constituo. Haec omnia concedo et confirmo salva regia et justa dignitate mea.

Testibus

Apud Oxeneford.,

anno ab Incarnatione Domini 1136, sed regni mei primo.

Henricus dei gracia Rex Anglie, Dux Normannie et Aquitannie et Comes Andegavie, omnibus Comitibus, Baronibus et fidelibus suis francis et Anglicis salutem. Sciatis me ad honorem dei et sancte ecclesie et pro communi emendacione tocius Regni mei concessisse et reddidisse et presenti carta mea confirmasse deo et sancte ecclesie et omnibus Comitibus et Baronibus et omnibus hominibus meis omnes concessiones et donaciones et libertates et liberas consuetudines quas Rex Henricus avus meus eis dedit et concessit. Similiter eciam omnes malas consuetudines quas ipse delevit et remisit, ego remitto et deleri concedo pro me et heredibus meis.

Quare volo et firmiter praecipio quod sancta ecclesia et omnes Comites et

Another MS.: honorum.

Printed from Stubbs, Select Charters.

b From Statutes of the Realm, Charters, p. 4.