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Until the nineteenth century ecclesiastical law formed a very important
part of the laws of England. The ecclesiastical courts dealt, as
might be expected, with various matters concerning the institutional
church, such as alterations to church buildings, election and control
of churchwardens, and clergy discipline. But the courts also had
a jurisdiction (affecting every person, whether or not a member
of the Church of England) over matrimonial law, probate of wills,
and certain classes of slander. Tithes and church rates (the latter
were taxes to support the fabric of the parish church) were enforced
by the ecclesiastical courts against all members of society. The
courts had what was called a "criminalî jurisdiction, which extended
not only to the discipline of the clergy, but to the punishment
of any person for certain kinds of conduct, notably sexual conduct,
that were not crimes at common law. They could also punish "brawling,î
i.e., quarrelsome conduct on church premises—not so arcane
a jurisdiction as might be supposed, since church premises included
vestry rooms where meetings on controversial local questions were
often held. The ecclesiastical
courts survived the Reformation, and, though abolished during
the Commonwealth, they were revived at the Restoration. After
the Restoration the volume of criminal cases diminished, so that,
"by 1830 the policing functions of the English ecclesiastical
courts against the laity had virtually disappearedî (84). The
matrimonial, probate, and slander jurisdiction remained, however,
as did the power to punish brawling and to enforce church rates.
By the mid-nineteenth century
this situation had come to seem intolerable. It was highly anomalous
that judges, many of whom had no legal training, and who were
appointed by bishops, should be determining important legal rights
of all citizens. The defamation jurisdiction might lead to oppressive
consequences, notably imprisonment, sometimes for long periods,
for failure to pay costs. The brawling jurisdiction was effectively
mocked by Dickens in Sketches by Boz. A tax imposed on
dissenters to support the Church of England was, as Owen Chadwick
put it, a "giant sore.î
Reform, however, was not easily
attained because the subject matters were diverse and individually
controversial. No doubt something needed to be done about divorce,
about probate, about defamation, about incest, about brawling,
about clergy discipline, and about church rates, but there was
no consensus on precisely what ought to be done, and no institutional
reform, or set of reforms, that was perceived as beneficial on
all fronts. In the end the solution lay in removing matters one
by one from the jurisdiction of the ecclesiastical courts: defamation
in 1855; matrimonial and probate matters in 1857; brawling in
1860; and church rates in 1868.
Clergy discipline did not quite
fit this pattern. Following a notorious case in the 1820s, the
subject of a previous book by Brian Outhwaite (Scandal in the
Church: Dr Edward Drax Free, 1764Æ1843) a statute of 1840
removed jurisdiction from the consistory (i.e., diocesan) courts
and set up new tribunals in their place, retaining the jurisdiction
of the ecclesiastical courts of appeal. This was not so much a
manifestation of the waning powers of the ecclesiastical courts
as an attempt (not altogether successful, as it turned out) to
reorganize and strengthen their powers in this particular matter.
If the clergy were not to be subject to summary dismissal, some
sort of tribunal was necessary to determine disputed questions
of fact and to set the limits to permissible conduct, and it was
generally accepted that this was one matter truly appropriate
to the ecclesiastical courts. When a further statute was enacted
in 1892, jurisdiction over certain classes of clergy discipline
was restored to newly constituted consistory courts.
There have been several previous
historical studies of the ecclesiastical courts, including two
excellent studies by Outhwaite himself, Clandestine Marriage
in England, 1500Æ1850 (1995), and Scandal in the Church
(1997), but these were restricted to particular topics and
periods. The virtue of the work under review is its comprehensive
nature. It is a general history, summarizing the available evidence
from all sources and offering useful critical commentary on previous
historical work. It reads well, is full of valuable information,
and will be an essential work of reference to any historian whose
work touches on the ecclesiastical courts.
Sadly, Brian Outhwaite did not
live to see the book through the press, but fortunately Richard
Helmholz undertook to edit the script, and, though he modestly
says that "my part in the production of this book has not been
significantî (vii), the reader has cause to be very grateful to
him, as well as to the principal author, for an excellent publication.
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