Friday, 30 August 2013

Ecclesiastical Courts

In Anglo-Saxon times justice had been administered by many small and local church courts. Afteur the Conquest William had not only conquered England but had conquered its Church as well replacing nearly all the Anglo-Saxon bishop with Norman ones. Justice in church courts now shifted to smaller number of bishops' courts administered by their archdeacons.


Church Courts  were formally established in England and made distinct from the king's courts by a royal ordinance issued by king William the Conqueror, in 1072 [Link]. He insisted that bishops should conduct ecclesiastical business in their own Courts Spiritual, and not in the Hundred courts. Prior to this ordinance bishops assisted in the hundred courts.

William I also insisted that the Church should presume no further rights in England than they enjoyed in Normandy.

Church courts tried cases based on Canon Law, which was itself based on the theory and theological concept of sin. Ecclesiatical Courts were a tribunal to administer ecclesiastical law, law based on canon law and church law, the Christian faith.

Church courts generally supervised all cases involving matrimonial law, testaments and wills, and they claimed jurisdiction over all cases involving the breaking of oaths or breach of promise. They handled the validity of contracts, and wills and burials. They also dealt with heresy, sacrilege, sorcery, usury, defamation, blasphemy, fornication, homosexuality, adultery and malicious damage to religious places. Because of the type of cases handled by these courts they were sometimes later referred to as the bawdy courts by the general populace.

The church also claimed the right of exclusive jurisdiction over all the clerics in the kingdom, and this could include almost anyone who worked for the church in almost any capacity. The jurisdiction extended to all crimes committed by clerics , including rape or theft and even murder. Clerics thus had full immunity from trial in and punishment by the king's courts. Exemption from civil jurisdiction  created problems of particular significance at that time, when matters like compensation for victims and their families had to be considered. The test used to prove that a person worked for the church was generally if they could show that could read and write.

The church also claimed the right of jurisdiction over all land held in Frankalmoign or Free-Alms.

In a church court it was the bishop or archdeacon who decided the sentence. Punishments arising from the church courts were generally far more lenient than those which arose from the king's courts. They could neither shed blood, nor generally sentence anyone to death involving the shedding of blood. Church courts could consign the guilty [sinner] to life imprisonment, and who could also be fed a diet which could mean a slow starvation to death. Otherwise most punishments involved the imposition of some kind of religious penance. As a last resort the bishop could also excommunicate. Clerics could be degraded [defrocked] and thereby lose their clerical immunity afterwards. However, it should be noted, no one could be tried for the same crime twice.

At the time of Henry II, in a given ecclesiastical diocese, there were generally two kinds of church court: the bishop's own court [later called the consistory court] and one or more archdeacons' courts, subordinate to it. The latter were presided over by archdeacons or rural deans.

Appeals generally went from lower to higher courts. Thus most appeals from the archdeacon’s court proceeded to the bishop's consistory court. And those arising  from cases in the consistory courts went to one of the ecclesiastical provincial courts, depending on whether the initiating courts were situated in the province of Canterbury or that of York. It was not necessary for a case to complete in a lower court before an appeal could be made to a higher authority.

Appeals from the two ecclesiastical provincial courts before went to the papal curia in Rome. Many popes of the time complained bitterly that they were being inundated with appeals from all over western Christendom, and were finding it difficult to perform their more important duty of  giving spiritual leadership.

It was this latter process of appeal to Rome that Henry wanted to stop by clause 8 of the Constitutions of Clarendon.

Ecclesiastical courts survived the Reformation in England.

But also note Lateran 2 1139 stated in Canon 20

Canon 20: Kings and princes were ordered to dispense justice in consultation with the bishops.

References

R. H. Helmholz; John Hamilton Baker (2003). The Oxford History of the Laws of England: The Canon law and Ecclesiastical jurisdiction from 597 to the 1640s. Oxford University Press. ISBN 978-0-19-825897-1.

William Stubbs. The Constitutional History of England, in Its Origin and Development. Cambridge University Press. pp. 283–. ISBN 978-1-108-03629-0.

Judiciary.gov.uk. Judges, Tribunals and Magistrates | Introduction to the justice system | History of the judiciary.

Theodore Frank Thomas Plucknett (2001). A Concise History of the Common Law. The Lawbook Exchange, Ltd. ISBN 978-1-58477-137-1.

Sir William Blackstone; St. George Tucker; Edward Christian (1803). Blackstone's Commentaries:   Volume  3 William Young Birch, and Abraham Small, no. 17, South Second-street, Robert Carr, printer. pp. 63–.

Archive.org. Frank M. Stenton: William the Conqueror and the Rule of the Normans. pp. 393-4



Frederick Pollock; Frederic William Maitland (1 October 2013). The History of English Law Before the Time of Edward I. The Lawbook Exchange, Ltd. pp. 75–. ISBN 978-1-58477-718-2.

Ojetti, B. (1908). Ecclesiastical Courts. In The Catholic Encyclopedia. New York: Robert Appleton Company.

Delany, J. (1908). Calumny. In The Catholic Encyclopedia. New York: Robert Appleton Company.

James A. Brundage (October 2010). The Medieval Origins of the Legal Profession. ReadHowYouWant.com. ISBN 978-1-4596-0580-0.

The Oxford History of the Laws of England Volume I
The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s
R. H. Helmholz
The Oxford History of the Laws of England

R. H. Helmholz; John Hamilton Baker (2003). The Oxford History of the Laws of England: The Canon law and Ecclesiastical jurisdiction from 597 to the 1640s. Oxford University Press. pp. 106–111. ISBN 978-0-19-825897-1.


The constitutional history and constitution of the Church of England
by Makower, Felix,
Cases handled by and under the Jurisdiction of the Ecclesiastical Courts


John Hamilton Baker (2012). The Oxford History of the Laws of England Volume II: 871-1216. Part III Angevin England: OUP Oxford. pp. 495–. ISBN 978-0-19-826030-1.



The Two Laws in England: The Later Middle Ages
W. R. Jones
Journal of Church and State
Vol. 11, No. 1 (Winter 1969), pp. 111-131
Published by: Oxford University Press


Richards, R. J. (2014). A Primer on the Origins and Implications of The Thomas Becket Affair. Lincoln Memorial University Law Review1(2), 2






James J. Spigelman (2004). Becket & Henry: The Becket Lectures. James Spigelman. pp. 108–10. ISBN 978-0-646-43477-3.

William I and the Church Courts
Colin Morris
The English Historical Review
Vol. 82, No. 324 (Jul., 1967), pp. 449-463

Legislation of the Medieval English Church
C. R. Cheney
The English Historical Review
Vol. 50, No. 198 (Apr., 1935), pp. 193-224
http://www.jstor.org/stable/552980


James C. Robertson (1859). Becket, archbishop of Cantebrury: A. Biography. John Murray. pp. 330–.

Oswald Joseph Reichel (1870). The See of Rome in the Middle Ages. See Footnote 1: Longmans, Green. pp. 369–.
 
Richards, R. J. (2014). A Primer on the Origins and Implications of The Thomas Becket Affair. Lincoln Memorial University Law Review, 1(2), 2.[PDF] from lmunet.edulmunet.edu [PDF]

The Two Laws in England: The Later Middle Ages
W. R. Jones
Journal of Church and State
Vol. 11, No. 1 (Winter 1969), pp. 111-131
Published by: Oxford University Press

Sir Simon Degge; Charles D. Ellis (1820). The Parson's Counsellor: With the Law of Tythes Or Tything ... C. Hunter. pp. 444–.

Robert SOUTHEY (1826). Letters to Charles Butler,Esq. comprising essays on the Romish religion and vindicating The Book of the Church. Letter VIII Thomas a Becket: John Murray. pp. 345–.


J. Collier (1708). An Ecclesiastical History of Great Britain, Chiefly of England: From the First Planting of Christianity, to the End of the Reign of King Charles the Second ... Charta Regis Wilhelmi Primi quae secernit Placita Ecclesiastica a Causis Civilibus : S. Keble. pp. 711–.

R. B. Outhwaite (2006). The Rise and Fall of the English Ecclesiastical Courts, 1500-1860. Cambridge University Press. ISBN 978-0-521-86938-6.

The History of Courts and Procedure in Medieval Canon Law
Wilfried Hartmann
Kenneth Pennington
Series: History of Medieval Canon Law
Copyright Date: 2016
Published by: Catholic University of America Press
Stable URL: http://www.jstor.org/stable/j.ctt1j0pt7h

Wilfried Hartmann; Kenneth Pennington (9 September 2016). The History of Courts and Procedure in Medieval Canon Law. CUA Press. ISBN 978-0-8132-2904-1.

Papal Exactions

The following are critical of the Church or Papal Courts describing the corruption and rackets that they eventually brought with them, and the Pope's "circus troupe" of officials that surrounded them.





Chaucer 

Chaucer, in particular, despised the following two evil characters in the entourage of papal officials that surrounded ecclesiastical courts in his Canterbury Tales.

The Summoner
The Summoner, the ecclesiastical official responsible for summoning sinners to attend the ecclesiastical courts. These officials would act like Gestapo agents or witchhunters, or inquisitors seeking out and hunting down those who had 'sinned" in a community they had come to, interviewing everyone and everybody till they had sought out enough persons. Of course, they would be bribable.

The Pardoner
The Pardoner sold papal indulgences and relics, kind of high-pressure salesman  or ecclesiastical quack who claimed that these "indulgences" pardoned the sins [both present and future] that one had committed in one’s life or was about to commit, promising a place for one's soul in Purgatory instead of Hell. 


The Canterbury Tales: ANALYSIS OF MAIN CHARACTERS. (n.d.). Retrieved from http://thebestnotes.com/booknotes/Canterbury_Tales/Canterbury_Tales39.html

Usury

From at least the twelfth century, prosecution of living usurers in England belonged to the church. Glanvill, author of the earliest systematic treatise on English law, denied any jurisdiction to the royal courts except at the usurer's death, when the king would be entitled to the usurer's chattels and the feudal lord would be entitled to his lands.4 The twelfth-century Dialogue of the Exchequer gave a similar account of English practice.5 The church was entitled to hear all pleas concerning usury during the lifetime of offenders, and to determine them freely according to the canon law.

The canon law to which the English common lawyers conceded jurisdiction was strict in definition. It defined usury as "whatsoever is taken for a loan beyond the principal."8 Any gain stemming from a loan, no matter how small, was considered usurious and unlawful

Decretum Gratiani, ed. A. Friedberg (Leipzig, 1879), dictum post C. 14, q.3, c.4: "Ecce evidenter ostenditur, quod quicquid ultra sortem exigitur usura est."

John Hamilton Baker (2012). The Oxford History of the Laws of England Volume II: 871-1216. 2. Usury: OUP Oxford. pp. 694–. ISBN 978-0-19-826030-1.


Synod of Winchester 1076

Louis Bail (1701) SUMMA CONCILIORUM OMNIUM TOMUS SECUNDUS. Synodus Wintoniensis 1076: Apud Joannem Manfre. pp. 703–.

Laici vero si de crimine suo accusati fuerint, et episcopo suo obedire noluerint, vocentur semel et ? et tertio. Si post tertiam vocationem emendari noluerint, excommunicentur
Any lay person accused of a [spiritual] crime and refuses to obey his bishop he may be summonsed [to appear before his bishop] once, again, and a third time; if after the third summons, he is unwilling to attend he may excommunicated.

Edward Augustus Freeman (1876). The reign of William the Conquereror. 1871. Synod of Winchester 1076: Clarendon Press. pp. 425–.

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