of the soul, as it was then called.' It was natural that early in the Christian era a notion should spring up, which is to this day not wholly extinct, that all differences between man and man should be referred to the arbitration of a Christian man, particularly one of the clergy: and they were soon resorted to as referees. A law of Arcadius and Honorius declared it to be a good thing to refer civil suits to the arbitration of bishops; and ten years later the civil courts were directed to execute these friendly sentences.2

In England, in the time of Athelstan, the bishops were ordered by the Synod of Greatley to sit with the judges in secular courts to prevent the germs of iniquities from

1 "The jurisdiction, pro salute animæ, had been the cause of very great expense and very little benefit."-L. Cottenham, L. C., 31 Parl. Deb. (3) 326. LORD HARDWICKE, L. C., said: "The common argument that the spiritual courts proceed only pro salute anima of the offender, but the temporal courts punish him either in body or purse, is a distinction without a real difference, for all punishment is intended for the reformation of the offender and an example to others. And this is the end both of the ecclesiastical censure and the temporal penalty, when they are both inflicted immediately and directly for the same thing."-Middleton v Croft, 2 Atk. 673.

2 Const. 7, 8; Cod. I. 4. St. Augustin, who used to preach that all litigation was a sin except conducted before ecclesiastics, had crowds of suitors at his door.-Aug. Serm. 351. St. Patrick indeed expelled from the church all who would or could not see this cardinal principle of conduct.-St. Patr. Synod. I., A.D. 456, Can. 21. The clergy by degrees found, that this practice somehow led to gifts and unexpected benefits coming into their possession, and rather interfered with their proper business--Socr. Hist. Eccl. b. vii. c. 36. The Emperors thought it better to restrict the subject-matter of ecclesiastical jurisdiction to religious things; and they were not to be drawn into the civil courts if possible.-Cod. Theod. b. xvi. tit. 11, 12. It was indeed conceded that in civil controversies with laymen the latter were entitled to resort to the civil courts.-Valent. Nov. xii. As regards the lesser crimes, they were taught that their own courts had ample power.-Bing. Chr. Ant. b. v. c. 2. Yet the bishops kept up a practice of redressing wrongs on appeal from the civil tribunals. -Nov. 86, c. 1, 2, 4. Under the supposed inspiration of the false decretals, the clergy revived their claims, and encouraged wealthy suitors always to look to Rome as an ultimate appeal and the original fountain head of all human justice. And even kings were thought liable to be deposed by the ecclesiastical supreme law.-Capit. Car. Mag. tit. 30, c. 5; Specul. Suec. Introit. §§ 22-34. In the earlier centuries the notions of jurisdiction were vague, and both sides were irresolute. In France in the sixth century, Clotaire authorised bishops to reprove civil judges for unjust sentences.-Const. Clot. A.D. 560, § 6. A little later this was thought to be going beyond the line of

budding.1 And Coke says, " the ancient law of England was, that the bishop with the sheriff did go in circuit twice every year, by every hundred within the county, which also appeareth by Magna Charta." 2 But William the Conqueror's charter forbade any spiritual cause to be tried in the secular court, and commanded the suitors to appear before the bishop only, who was directed to conform to the canon law. And though Henry I. restored the older law, the ecclesiastics in Stephen's reign again procured the bishops' jurisdiction to be kept distinct. Henry II. saw the growing mischief of the Ecclesiastical Courts arrogating universal jurisdiction, and tried in the Constitutions of Clarendon to check it by giving to his common law judges the cognisance of contracts, advowsons, and offences committed by clerks. The Pope, it is true, professed to annul most of the Constitutions of Clarendon, but the clergy began to be displaced in the courts by common law lawyers, and writs of prohibition to the spiritual courts soon became common.4

The lowest court of ecclesiastical jurisdiction was the archdeacon's, and from thence an appeal lay to the consistory court of each diocesan bishop, and from thence to the archbishop, or Court of Arches. The Statutes of Henry VIII. up to very recent times regulated the course of these appeals. In 1534 the statute of that king recited, that the jurisdiction of the Crown, spiritual and temporal, had always sufficed as settled by previous Acts and ordinances, without the intermeddling of any exterior person, and that all the king's subjects shall use their appeals, first from the archdeacon or his official, if the matter be there begun, to the bishop diocesan of the said see. And if the cause be commenced before the bishop diocesan, or his commissary, then from them to the archbishop and there to be definitively settled and ordered. Suits commenced before the archbishop were to be without any other appeal. And in all matters touching the king, his heirs, or successors, then the appeal shall be from any of the above courts to the Upper House of Convocation

duty-Greg. Turon. Hist. b. viii. c. 39. The Welsh code positively forbade ecclesiastics from acting as judges.-Dimet. Code b. ii. c. 8, §§ 128, 132.

1 A.D. 928, 1 Pusey Suprem. 107. 41 Hallam, Mid. Ag. 224.

22 Inst. 70. 33 Bl. Com. 64.

assembled by the king's writ.' And the statute of the next year confirming the above enactment, further provided, that any person might appeal from the Archbishop's Court to the king in his Court of Chancery, and upon such appeal the king should issue a commission to persons named who should definitively determine such appeals, and no further appeal was to be had. These commissioners afterwards appointed by the Crown from time to time were called the Court of Delegates, a court little resorted to when the High Commission and Star Chamber were at work; and it has been said that if the delegates for some reason made a mistake, the Crown might have again issued a commission of review.3 But no better reason seemed to be given for this than that the Pope used to do something similar in the management of his own affairs. That power is, however, now of no importance, for in 1832 the whole jurisdiction formerly exercised by way of appeal from all ecclesiastical courts was transferred to the Judicial Committee of the Privy Council, consisting of certain high judges and others (including archbishops and bishops) appointed from time to time by the Crown.*

Ecclesiastical courts watched by temporal courts.According to Coke, Boniface's Canons, and Constitutions, made before 1258, had encroached greatly on the jurisdiction of the civil courts, and thus prohibitions required to be issued, and controversies arose between the judges of the realm and the bishops; and the judges kept with great difficulty the Ecclesiastical Courts from encroaching. And then the clergy exhibited articles to Henry III., complaining of these prohibitions. As Coke said, the judge at that time openly said, that "The temporal courts must always have an eye, that the ecclesiastical jurisdiction usurp not upon the temporal." The clergy

1 24 Hen. VIII. c. 12. 2 25 Hen. VIII. c. 19. 4 2 & 3 Will. IV. c. 92; 3 & 4 Vic. 86, § 4. Ed. II.; 2 Inst. 599.

3 4 Ves. 186.

5 Artic. Cl.; 9

62 Inst. 615. So late as 1839 a bishop told the House of Lords, that bishops had been invested with the authority of judges by a higher tribunal than any House of Parliament-they had received their authority from the great Head of the Church-it was coeval with the establishment of Christianity on the earth.-Bp. Exeter, 49 Parl. Deb. (3) 770.

have always felt this grievance of prohibitions, which in other words meant, that the civil court was to decide whether the Ecclesiastical courts had exceeded their jurisdiction. In 1603 they preferred articles to the Privy Council against the judges, when the whole of the judges were questioned as to the nature and extent of this jurisdiction; and it was then fully discussed.' The clergy alleged, that in the reign of Elizabeth and the first three years of James I. there had been 570 prohibitions; and they were sure that nine in ten, nay, nineteen in twenty, if not thirty-nine in forty of these were wrong. But the judges replied, that this was mere vague generality and clamour on the part of the ecclesiastics, and they must specify particular instances. The clergy then particularly complained, that in one suit for tithes against a parishioner the temporal court had granted a prohibition on the mere suggestion, that the parishioner had given the minister a cup of buttered beer to cure him of a grievous cold, whereby all his tithes were discharged.2 To which the judges retorted, that the minister should not have made so ridiculous a contract. And in another case complained of, the judges replied, that if the spiritual court punished a woman for adultery, whereas all they could prove against her was night walking, they could not avoid granting prohibition in such circumstances. And like views have always prevailed more or less in the temporal courts as to the jurisdiction of the spiritual courts.

Excesses of the ecclesiastical jurisdiction.-One court distinguished itself in its time as ambitious to reform all errors whatever in the Church. The High Commission Court originated with Queen Mary, who was zealous to inquire after heretics, and Queen Elizabeth's Parliament enlarged the scheme and superadded to heresy the duty of inquiry into seditious and false news. In the time of Charles I. the court professed to have power to examine its prisoners on oath.* Coke thought it never had the right either to fine or imprison, though in its time it did both, and it was utterly abolished in 1640.6 The modern jurisdiction of the ecclesiastical 2 2 Inst. 601; Artic. cleri, 2 St. Tr. 142. 31 Eliz. c. 1; 1 Hallam Const. H. c. 4. 4 2 Hallam Const. H. c. 8. 6 16 Ch. I. c. 11.

1 2 Inst. 601.

5 4 Inst. 324.

courts over the laity may now be said to be wholly abolished, except so far as regards churchwardens and officers of the church, and the interference of parties with the fabric of the church or the churchyard. Even the canons profess to deal with no subject of the realm who is not a member of the Church. Many things however were treated by the canons as offences which are no longer so.2 Even the civil courts, including courts-leet, according to Coke, had once power to punish adultery and fornication by way of fine. But so early as the time of Edward I. the civil courts were ordered not to interfere with the Bishop of Norwich and his clergy (which Coke thought applied equally to all other bishops and clergy), for dealing with these offences. And acting on this notion, the ecclesiastical Courts were apparently allowed to treat solicitation of a woman's chastity as an offence.5 And cases of incest were also deemed within their jurisdiction, where no property was concerned in the question. So late as 1757 a methodist preacher was condemned by those courts to public penance for incontinence.7 And though a statute was passed thirty years afterwards to prohibit ecclesiastical courts from punishing for incontinence after the lapse of eight months, yet the House of Lords has held that that statute did not apply to the clergy but only to the laity, and hence incontinence is still a well-known cause of suit under the Church Discipline Act.9 Nor can the ecclesiastical courts now punish any lay person for

1 Can. Preamble; Croft v Middleton, 2 Atk. 650; 2 Str. 1056. It was long doubted, whether in case of perjury being committed in an ecclesiastical suit, the remedy is still, as it once was, in the ecclesiastical court, inasmuch as the statute of circumspecte agatis expressly gave the ecclesiastical courts power to punish for breaking an oath when money is not demanded, so far as can be done for the punishment of sin.-13 Ed. I. st. 4; 5 Eliz. c. 9, § 5; 5 Eliz. c. 23; Bp. St. David's Case, L. Raym. 451; R. v. Lewis, Str. 70. But the modern statutes punishing for perjury clearly apply to all courts, whether ecclesiastical or temporal; and therefore the ancient jurisdiction of the ecclesiastical courts even over the clergy for perjury must be taken to be impliedly repealed.--R. v. Green, 5 Mod. 348; 16 Vin. Str. 313; 2 Rol. Ab. 257.

3 2 Inst. 487. 4 13 Ed. I. St. 4; 2 Inst. 488. 5 Gallisand v Regaud, L. Raym, 809. 6 Harris v Hicks, 2 Salk. 548. 7 Wheatley Fowler, 2. Lee, 376. 8 27 Geo. III. c. 44. 9 Free Burgoyne, 2 Bligh, N. S. 65.