titles as concerning the feveral kinds of courts, under the titles, confiftory, convocation, vifitation, arches, audience, prerogative, faculty, peculiar; concerning the officers, under the titles archdeacon, chancellor, commiffary, vicar general, official, furrogate, advocate, regifler, proctor, apparitor; concerning the practice and manner of proceeding, under the titles caveat, libel, citation, evidence, fentence, fees, appeal, prohibition, confultation; concerning the judgment and execution of the fentence, under the titles penance, fufpenfion, excommunication, interdi&, deprivation, degradation, fequeftration; and fuch like.

rifdiction in

general.

1. For the first three hundred years after Chrift, the Origin of the diftinction of ecclefiaftical or spiritual caufes, in point of ecclefiaftical jujurifdiction, did not begin; for at that time no fuch diftinction was heard of in the chriftian world; for the caufes of teftaments, matrimony, baflardy, adultery, and the reft, which are called ecclefiaftical or fpiritual caufes, were merely civil, and determined by the rules of the civil law, and fubject only to the jurifdiction of the civil magiftrate. But after the emperors were become christian, out of a zeal and defire they had to grace and honour the learned and godly bifhops of that time, they were pleafed to fingle out certain fpecial caufes, wherein they granted jurifdiction to bishops; namely, in cafes of tithes, because paid to men of the church; in caufes of matrimony, because marriages were for the most part folemnized in the church; in caufes teftamentary, because testaments were many times made in extremis, when churchmen were present giving fpiritual comfort to the teftator, and therefore they were thought the fittest perfons to take the probates of fuch teftaments: and fo of the reft. thefe bishops did not then proceed in thefe caufes according to the canons and decrees of the church, (for the canon law was not then made,) but according to the rules of the imperial law, and as the civil magiftrate proceeded in other caufes. Dav. 95.

Yet

2. Accordingly in this kingdom, in the Saxon times, Origin thereof before the Norman conqueft, there was no diftinction of within this jurifdictions; but all matters, as well fpiritual as temporal, reaim in parti. were determined in the county court called the fheriff's cular. tourn, where the bishop and earl (or in his abfence the Theriff) fat together; or elfe in the hundred court, which was held in like manner before the lord of the hundred and ecclefiaftical judge. Examin. of the fcheme of ch. pow. 15. Duck. 307. 1 Warn. 274. 2 Still. 14. God. 96. Fobnf. 246.

For

For the ecclefiaftical officers took their limits of jurifdiction, from a like extent of the civil powers. Most of theld Saxon bishopricks were of equal bounds with the diftin& kingdoms The archdeaconries, when firft fettled into local districts, were commonly fitted to the refpective counties. And rural deaneries, before the conqueft, were correfpondent to the political tithings. Their fpiritual courts were held, with a like reference to the adminiftration of civil juftice. The fynods of each province and diocefe were held at the difcretion of the metropolitan and the bifhop, as great councils at the pleasure of the prince. The vifitations were firft united to the civil inquifitions in each county; and afterwards, when the courts of the earl and bishop were separated, yet ftill the vifitations were held like the sheriff's tourns twice a year, and like them too after eafter and michaelmas, and ftill with nearer likeness the greater of them was at eafter. The rural chapters were allo held like the inferior courts of the hundred, every three weeks; then, and like them too, they were changed into monthly, and at last into quarterly meetings. Nay, and a prime vifitation was held commonly, like the prime folcmote or sheriff's tourn on the very calends of May. Ken. Eccl. Syn. 233, 4.

And accordingly Sir Henry Spelman obferves, that the bifhop and the earl fat together in one court, and heard jointly the caufes of church and commonwealth; as they yet do in parliament: And as the bishop had twice in the year two general fynods, wherein all the clergy of his diocefe of all forts were bound to refort for matters concerning the church; fo alfo there was twice in the year a general affembly of all the fhire for matters concerning the commonwealth, wherein without exception all kinds of eftates were required to be prefent; dukes, carls, barons, and fo downward of the laity; and efpecially the bishop of that diocefe among the clergy. For in those days the temporal lords did often fit in fynods with the bishops, and the bifhops in like manner in the courts of the temporalty, and were therein not only neceffary, but the principal judges themselves. Thus by the laws of king Canutus," the fhyre-gemot (for fo the Saxons called this affembly of the whole fhire) fhall be kept twice a year and oftner if need require, wherein the bifhop and the alderman of the fhire fhall be prefent, the one to teach the laws of God, the other the law of the land." And among the laws of king Henry the first, it is ordained; firft, let the laws of true chriftianity (which

66

we call the ecclefiaftical) be fully executed with due fatiffaction; then let the pleas concerning the king be dealt with; and laftly, thofe between party and party: and whom foever the church fynod fhall find at variance, let them either make accord between them in love, or fequefter them by their fentence of excommunication." Whereby it appeareth, that ecclefiaftical causes were at that time under the cognizance of this court. But thefe, he says, he takes to be fuc ecclefiaftical caufes, as were grounded upon the ecclefiaftical laws made by the kings themselves for the government of the church (for many fuch there were in almoft every king's reign), and not for matters rifing out of the Roman canons which haply were determinable only before the bishop and his minifters. And the bishop first gave a folemn charge to the people touching ecclefiaftical matters, opening unto them the rights and reverence of the church, and their duty therein towards God and the king, according to the word of God. Then the alderman in like manner related unto them the laws of the land, and their duty towards God, the king, and commonwealth, according to the rule and tenure thereof. Reliquia Spelm. 13, 53, 54.

3. The feparation of the ecclefiaftical from the tem- Wiliam the poral courts, was made by William the conqueror. And conqueror's as from thence we are to date this great alteration in our charter of fepa conftitution; it is judged neceffary to recite the charter of "feparation verbatim; which is as followeth :

"WILLIELMUs, Dei gratia, rex Anglorum, R. Bainardo et G. de Magnavilla, et P. de Valoines, cæterifque meis fidelibus de Effex et Hertford fchire et de Middlefex, falutem. Sciatis vos omnes, et cæteri mei fideles qui in Anglia manent, quod epifcopales leges, quæ non bene, nec fecundum fanctorum canonum præcepta, ufque ad mea tempora in regno Anglorum fuerunt, communi concilio et concilio archiepifcoporum [meorum] et [ceterorum (c)] epifcoporum, et abbatum, et omnium principium regni mei, emendandas judicavi. Propterea mando, et regia auctoritate præcipio, ut nullus epifcopus, vel archidiaconus, de legibus epifcopalibus amplius in Hundret placita teneant; nec caufam quæ ad regimen animarum pertinet, ad judicium fæcularium hominum adducant: fed quicunque fecundum epifcopales leges, de quacunque caufa vel culpa interpellatus fuerit, ad locum quem ad hoc epifcopus elegerit et nominaverit, veniat; ibique de caufa vel culpa fua refpondeat, et non fecundum Hundret, fed fecundum

VOL. II.

(c) Wilkins Leg. Ang. Sax. 292.

D

canones

ration.

canones et epifcopales leges, et rectum Deo et epifcopo fuo faciat. Si vero aliquis, per fuperbiam elatus, ad juftitiam epifcopalem venire contempferit, et noluerit; vocetur femel, et fecundo, et tertio: Quod fi nec fic ad emendationem venerit, excommunicetur; et fi opus fuerit ad hoc vindicandum, fortitudo et juftitia regis vel vicecomitis adhibeatur: Ille autem qui vocatus ad juftitiam epifcopi venire noluerit, pro unaquaque vocatione legem epifcopalem emendabit. Hoc etiam defendo, et mea auctoritate interdico, ne ullus vicecomes aut præpofitus, feu minifter regis, nec aliquis laicus homo, de legibus quæ ad epifcopum pertinent, fe intromittat; nec aliquis laicus homo alium hominem fine juftitia epifcopi ad judicium adducat: Judicium vero in nullo loco portetur, nifi in epifcopali fede, aut in illo loco, quem epifcopus ad hoc conftituerit." Spelm. V. 2. p. 14. (d)

(a) WILLIAM, by the grace of God king of the English, to R. Bainard, and G. De Magnavilla and P. De Valoines, and to my other liege men of Effex and Hertfordshire and of Middlefex, health. Know ye all and other my liege men who dwell in England, that the epifcopal laws which have not been well (administered) nor according to the precepts of the holy canons, up to my time, in the kingdom of England, I have thought fit to have amended in a common council and council of my archbishops and other bifhops and abbots, and all the principal men of my kingdom. I therefore order and by royal authority command that no bishop or archdeacon longer hold pleas of the laws epifcopal in the hundred, or draw a caufe which belongs to the government of fouls to the judgment of fecular men: but whofoever shall be questioned, according to the epifcopal laws, touching any cause or fault whatfoever, let him come to a place which the bishop for this fhall have chofen and named, and there let him asfwer touching his caufe or fault; and not according to the hundred, but according to the canons and epifcopal laws, let him do right both to God and his bishop. But if any one elated through pride fhall have contemned or refused to come to the epifcopal jurifdiction, let him be fummoned once and a fecond and third time; and if he fhall not then come to make amends, let him be excommunicated. And if need fhall be to enforce this, let the power and jurifdiction of the king or fheriff be reforted to: and he who having been fummoned to the jurifdiction of the bishop shall have refufed to come, fhall make amends to the epifcopal law for every fum mons. This alfo I forbid and by my authority interdi&t, that no fheriff or reeve or officer of the king, nor any layman, do intermeddle with the laws which belong to the bishop, Do any layman do draw another man to judgment except by the jurifdiétion of the bifhop: and let judgment be given in no place but in the epifcopal feat, or in that place which the bishop for this hall have appointed.

This charter, Mr. Selden fays, was recited in a close roll of king Richard the Second. and then confirmed. Str. 669.

ments after the

4. For upon the conqueft made by the Normans, the Papal incroach pope took the opportunity to ufurp upon the liberties of" conquest. the crown of England. For the conqueror came in with the pope's banner, and under it won the battle. Whereupon the pope fent two legates into England, with whom the conqueror called a fynod, depofed Stigand archbishop of Canterbury because he had not purchased his pall from Rome, and difplaced many bishops and abbots to make room for his Normans. This admiffion of the pope's legates, first led the way to his ufurped jurisdiction in England; yet no decrees paffed or were put in execution, touching matters ecclefiaftical, without the royal affent; nor would the king submit himself in point of fealty to the pope, as appears by his epistle to Gregory the seventh. Yet in his next fucceffor's time, namely in the time of king William Rufus, the pope by Anfelme archbishop of Canterbury attempted to draw appeals to Rome, but prevailed not. Upon this occafion it was, that the king told Anfelme, that none of his bifhops ought to be fubject to the pope, but the pope himself ought to be subject to the emperor; and that the king of England had the fame abfolute liberty in his dominions, as the emperor had in the empire. Yet in the time of the next king, to wit, king Henry the firft, the pope ufurped the patronage and donation of bishopricks, and of all other benefices ecclefiaftical. At which time Anfelme told the king, that the patronage and inveftiture of bishops was not his right, because pope Urban had lately made a decree, that no lay perfon fhould give any ecclefiaftical benefice. And after this, at a fynod held at London, in the year 1107, a decree was made, unto which the king affented (faith Matthew Paris), that from thenceforth no perfon fhould be invefted in a bishoprick by the giving of a ring and pastoral ftaff (as had been before), nor by any lay hand. Hereupon the pope granted, that the archbishop of Canterbury for the time being fhould be for ever legatus natus: and Anfelme for the honour of his fee obtained, that the archbishop of Canterbury fhould in all general councils fit at the pope's foot, as alterius orbis papa, or pope of this part of the world. Yet after Anfelme's death, this fame king gave the archbishoprick of Canterbury to Rodolph bishop of London, and invested him by the ring and paftoral staff; and this, because the fucceeding popes had broken pope Urban's promife, touching the not fending of legates into England, unless the king fhould require it.

D 2

And