An attempt was made

to withdraw the clergy from the juris

diction of the Temporal Courts.

civil or criminal. The buying and selling of land, leasing, mortgaging, the prosecution and punishment of murder, theft, and many other objects of temporal judicature, are provided for by the canon law; by which, and by which alone, it was meant that the clergy should be governed as a distinct people from the laity." 93a

"The Emperor Constantine had thought that the irregularities of an order of men, devoted to the affairs of religion, should be veiled from the scrutinising eye of the people. With this view, he granted to each bishop, if he were accused of violating the law, the liberty of being tried by his own colleagues; and moreover invested him with a criminal jurisdiction over his own clergy." 77

"The Canon Law was founded on the Roman civil law, and could not exist without it 936, and the study of the civil law was, in the time of the Normans and their immediate successors, almost confined to the clergy. Thus armed with an almost exclusive knowledge of these elaborate systems of law, the clergy ventured to encounter the established authority of municipal law, whose dictates were very opposite to their schemes of ecclesiastical sovereignty." 93

"In the reign of Stephen a very complete collection of Canon Law was made, containing many extravagant opinions, all tending to exalt the clerical state, and exempt the clergy from secular law. 930 Lectures on the subject were delivered at Oxford, and Stephen, alarmed at the danger of such doctrines, forbad the reading of books on Canon Law, but the clergy disregarded the prohibition. Among the doctrines thus set forth, it was laid down,- that any custom against the decree of a Pope is void: that all men must obey

on.

CONTESTS BETWEEN CHURCH AND KING. 143

And to ob

the Pope's commands. It is made an anathema to sue a clergyman before a lay judge; if a lay judge condemn a priest he is to be excommunicated; a layman cannot give evidence against a priest; and so Till these doctrines prevailed the separation of the temporal and ecclesiastical courts was not of much importance. But the church proceeded from one step to another in their attempts at encroachment on the power of the king. Among other matters the clergy tried to obtain control over presentments to right of benefices or livings. These were originally private ments to grants to those who performed religious duties, and livings. were originally in the sole disposal of the grantor. This occasioned a long contest, but at length King John was obliged to yield to the extent of granting that lay patrons should be obliged to present the priests, whom they appointed, to the bishop who gave them institution. 93f

tain the

present

tried to ob

filling

bishop

"The Pope claimed a like method of filling vacant The Pope bishoprics, but for a long time the spirited resistance tain the of our kings defeated his attempts. Bishops held right of their lands of the king as baronies, according to the vacant Feudal System, and were indeed, as they still are, ricks. Barons. The bishops received investiture of those lands, and did homage to the King for them. Henry the First found it expedient to yield to the pope and give up the investiture, but retaining the homage. King John gave up to the cathedrals and monasteries the right of electing their prelates, reserving to himself the form of granting a licence to elect, but providing that, if he refused the licence, the electors might proceed without it. He also reserved the possession and use of the estates during a vacancy." 938 They were held of him, and if his tenant died they

Constitutions of

of course reverted to him. "Contests on these matters between church and king went on continually, till at length Henry the Second enacted, by his parliament, a settlement of the points in dispute. This enactment was called "The Constitutions of Clarendon." By this it was provided, among other matters, Clarendon. that priests accused of any crime, of which the secular courts took notice, should be tried by those courts; that the consent of the king was necessary to the filling up of any benefice, and that, during a vacancy, the king should receive the rents as of his demesne. The pope objected to these enactments, and Henry, struck with a panic of superstition and remorse for the murder of Becket, refrained from putting them in force. He wrote to the pope and stated that "notwithstanding the opposition of the greatest and wisest men of the kingdom, he had yielded amongst other things, that no priest should be brought before a secular judge for any crime except an offence against the forest laws." Still the Constitutions of Clarendon remained in force, although Henry feared to put them in force.93b

The Eccle

siastical

It is unnecessary, in this place, farther to pursue the history of the quarrels between the king and the church, but I have thought it necessary to introduce this notice of them, in order to explain the extent to which it was attempted to extend the Canon Law.

From this time the Ecclesiastical Courts had jurisCourts ad- diction over wills, marriage and divorce, and all spiritual matters.

ministered

the law

relating to Wills.

66

Questions as to the validity of wills of real and personal estate were of a nature that might well be decided on at the county, hundred, or manor courts, but, on the separation of the ecclesiastical from the civil jurisdiction, the bishops carried with them the

ORIGIN OF OUR ECCLESIASTICAL COURTS. 145

jurisdiction as to wills and intestacy, so far as regards personal estate." 20 Real property, that is, landed property, could not be left by will, so long as the Feudal System lasted, as land could not be transferred from one person to another without actual delivery, which could not take place after the death of the testator.34

"The clergy, from the first, claimed, and it was expressly conceded by Richard the First to the Norman clergy, that all questions of breach of faith, and of oaths," which perhaps were considered to be spiritual matters, "should be tried before the ecclesiastical tribunals; but, by the Constitutions of Clarendon, the ecclesiastical courts were altogether restrained from meddling with all questions of breach of faith or trust, arising between laymen, in regard to civil matters. Questions relating to marriage and wills, including The clergy money agreed to be paid on marriage and legacies, as well as all matters merely spiritual, were left to the cognisance of the ecclesiastical courts. The probate of wills of personal estate has, ever since the separation of the cognisance of ecclesiastical matters from the county court, belonged to the ecclesiastical courts." 30

The jurisdiction of the ecclesiastical courts has long ceased to be under the control of the clergy, but it was thus that they came to have the control over all matters relative to church discipline, marriage, divorce and wills. By recent statutes (20 & 21 Vic. cap. 77. and cap. 85.) the jurisdiction of the Ecclesiastical Courts over matters relating to wills and to marriage and divorce, has been taken away, and two new courts of the Queen have been created; one the Court of Probate, and the other the Court for Divorce and Matrimonial Causes. Thus these matters which were

retained

jurisdiction over mar

riage,

and spiri

tual con

cerns.

Doctors'

Commons,

for so many centuries treated in this country as ecclesiastical, have at last been transferred to temporal courts as more properly belonging to their jurisdic

tion.

Having now given an account of the system of law administered by the Ecclesiastical Courts, it may be interesting to give an account of the place where the

law is administered.

An English bishop had spiritual jurisdiction over his whole diocese, and there was in every diocese a court held before the official principal of the bishop. Besides these there were courts of the archbishops. The highest court of the kind was the Court of Arches, which was known by that name long before the time of Henry the Second. It was so called from Bow Church, which was designated Sancta Maria de Arcubus, or St. Mary of the Arches, in which the court was holden. For a long time the lawyers, or advocates, who practised in this Court mixed with and lived among the general mass of the people. But in the beginning of the reign of Henry the Eighth, they agreed to dwell together in contiguous houses, and enjoy a community of board, or commons. Their place of abode was then called the College of Doctors and Advocates. They imitated college life in providing that, although the Advocates might be married, their wives could not reside in the college. In 1568, the Dean of the Arches took a lease of Montjoy House, and other buildings in the parish of St. Bennett, Paul's Wharf, and the court over which he presided, viz., the Prerogative Court of Canterbury, together with the Admiralty Court (of which I shall give an account), were thenceforward holden there, and the whole place was called Doctors' Commons. 107