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OF COURTS ECCLESIASTICAL.
Having, in the preceding chapter, considered those courts whereby the common law and equitable jurisprudence of England are administered, we must now proceed, in this and the following chapter, to examine some other courts of a jurisdiction equally public and general, which take cognisance of causes of an ecclesiastical, military, and maritime nature; and are therefore properly distinguished by the title of ecolesiastical courts, courts military, and courts maritime.
But as the ecclesiastical courts are the tribunals wherein the power and the laws of the church are administered, and the church is not of one country, but universal, it would be incorrect to speak of their constitution in England without some previous account of ecclesiastical jurisdiction in general. And it will be most convenient to consider the civil and the criminal ecclesiastical jurisdictions together.
The proper and essential jurisdiction of the church is entirely spiritual,1 being founded on the great powers conferred by our Lord upon his apostles. Thus, He gave them the power to teach and baptise, promising his perpetual presence with them to the end of the world, and thereby necessarily implying a continuation of that authority to their successors.2 The apostles likewise received
1 Fleury, Inst . au Droit EccUs. par. iii. tom. ii. p. 1, &c. 1 St. Matt, in fin.
from Him the power of the keys, to remit and retain sins, and to receive accusations; and He pronounced, at the same time, that the offender who will not hear the church shall be as a heathen and a publican.1 Such is the power essential to the church. She has power to teach all that which she is commanded by divine authority to believe or to practise, and consequently to interpret that doctrine, and to repress by admonitions and censures those who teach or practise otherwise, in any respect whatever. The church has power to assemble the faithful for prayer, instruction, and the administration of the sacraments; to give them pastors and public ministers, and to depose those pastors and ministers, if they render themselves unworthy of their holy functions; to judge sinners, and cut off from the body of the church those who are rebellious and incorrigible; and to assemble t he clergy of the church, or some part of them, to exercise her judgments.
These powers the church enjoyed under the pagan emperors, and they cannot be taken from her by any human authority.
The spiritual jurisdiction to govern the church is vested in the bishops. The apostles received it originally, and transmitted it to their successors by the imposition of hands ;2 for "the apostles," says Hooker, "were the first that had such authority; and all others who have it after them in orderly sort are their lawful successors, whether they succeed in any particular church, where before them some apostle hath been seated, as Simon succeeded James in Jerusalem; or else be otherwise en
1 St. John, x. 22. St. Matt . xviii 15. See St. Paul, 1 Tim. v. 19. And see Palmer on the Church, part iv. c . xvi. § 1. and 2. on eccles. censures.
2 Fleury, Inst, au Dr. Eccles. par. iii. tom. ii. c. il
dued with the same kind of bishoply power, although it be not where any apostle before hath been. For to succeed to them, is after them to have that episcopal kind of power which was given to them. All bishopt are, saith Jerome, the apostles' successors.1 In like sort, Cyprian doth term bishops2 prcepositos qui apostolus vicaria ordinatione succedunt. From hence it may happily seem to have grown, that they whom now we call bishops were usually termed at the first apostles, and so did carry their very names in whose rooms of spiritual authority they succeeded. Such as deny apostles to have any successors at all in the office of their apostleship, may hold that opinion without contradiction to this of ours, if they well explain themselves in declaring what truly and properly apostleship is: in some things every presbyter, in some things only bishops, in some things neither the one nor the other, are the apostles', successors. The apostles were sent as special chosen eye-witnesses of Jesus Christ, from whom immediately they received their whole embassage, and their commission to be the principal first founders of an house of God, consisting as well of Gentiles as of Jews: in this there are not after them any like unto them; and yet the apostles have now their successors upon earth—their true successors—if not in the largeness, surely in the kind of that episcopal function whereby they had power to sit as spiritual ordinary judges both over laity and over clergy where churches Christian were established."3 And the divine origin of the spiritual authority of the episcopal order is expressly acknowledged in the form of consecration of bishops in our church. But to this subject we shall have occasion to
1 Hieron. Ep. 81.
2 Cypr. Ep. ad Florent.
3 Hooker, Eccles. Polit. b. vii. num. 4.
return; and it is here sufficient to say, that the episcopal order is of divine right the fountain of all ecclesiastical government and jurisdiction, though parts thereof are, in many instances, portioned out by delegation to other members of the church, and (as we shall see) even exercised in our church through the instrumentality of laymen.'
When Christianity became the religion of the state in the Roman empire, and afterwards in other kingdoms and dominions, the civil power added the sanction of temporal laws and coercive means to maintain the government and discipline of the church against those who did not stand in awe of spiritual censures and admonitions. Thus the church acquired an exterior forum, wherein the ecclesiastical jurisdiction was administered. The custom of the ancient Christians to be judged by their spiritual superiors, the favour of temporal princes, the high character and influence of many among the bishops, and the ambition of others, occasioned the addition of many purely temporal branches to the ecclesiastical jurisdiction.1 But the disputes to which these matters gave rise, and the changes which resulted from them at different times, are rather matter of history than of law; and we will therefore pass them over in silence. Thus it appears that in ecclesiastical jurisdiction, as we now see it established, three things are to be most carefully distinguished, namely:—
I. The essential spiritual jurisdiction of the church, which is of divine right, and enforced by purely spiritual sanctions.
II. The temporal sanctions which the civil magistrate has added to aid the spiritual jurisdiction; and the out
1 Fleury, Inst, au Dr. Eccles. par. iii. tom. ii. c. i.
ward tribunal which the church has received from the temporal law.
III. The jurisdiction over certain temporal matters, which the state has entrusted to the spiritual judge.
These distinctions are of very high importance, because a want of attention to them has produced the error of supposing that because the ecclesiastical courts, as they are now established, are held under the authority of temporal law, and take cognisance of many temporal matters, therefore their jurisdiction is entirely derived from thf state, and may consequently be dealt with by the civil power in the same manner as any temporal tribunal, which is at any time liable to be altered or abolished, as may seem good to the legislature.1
Having established these fundamental principles, we will proceed to take a view of the ecclesiastical tribunals, or, as they are often styled, courts Christian, established in England, beginning from the lowest, They are held before judges, who are for the most part laymen, but derive their power by delegation from the ecclesiastical dignitary, by whom those judges are appointed. The bishops being unable to attend in person to the multitude of causes drawn into their courts by the extension of ecclesiastical jurisdictions (especially in the greater sees), found it necessary to entrust the cognisance of a large part of them to the archdeacons, or to some priest appointed for that purpose, with a commission revocable at pleasure ,J instead of administering justice, either with the advice of the clergy of their episcopal city, or, in cases of difficulty.
1 Lord Hale says, "It is the custom or law of England that gives the exact limits of their external jurisdiction in foro contention." —Hale, Hist . of Com. L. c. ii. p. 33.
s Fleury, Inst au Dr. Eccles. par. iii. tom. ii. c. iii. Van Espen, Jus. Eccles. Univ. par. iii. tit. v. $ 16, 17.