THE RISE AND FALL OF THE ENGLISH ECCLESIASTICAL COURTS, 1500–1860

The first history of ecclesiastical jurisdiction in England covers the period up to the removal of principal subjects inherited from the Middle Ages. Probate, marriage and divorce, tithes, defamation, and disciplinary prosecutions involving the laity are all covered. These all disappeared from the church’s courts during the mid-nineteenth century and were taken over by the royal courts. The book traces the steps and reasons – large and small – by which this occurred.

R. B. Outhwaite is a late fellow of Gonville and Caius College, Cambridge. He devoted much of his scholarship to the history of ecclesiastical jurisdiction of England.

CAMBRIDGE STUDIES IN ENGLISH LEGAL HISTORY

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J. H. BAKER
Fellow of St Catharine’s College, Cambridge

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THE RISE AND FALL OF THE ENGLISH ECCLESIASTICAL COURTS, 1500–1860

R. B. OUTHWAITE

CAMBRIDGE UNIVERSITY PRESS
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© Cambridge University Press 2006

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First published 2006

Printed in the United Kingdom at the University Press, Cambridge

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ISBN-13 978-0-521-86938-6 hardback

ISBN-10 0-521-86938-2 hardback

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CONTENTS

FOREWORD
R. H. Helmholz

This account of the jurisdiction of the English ecclesiastical courts was the last work written by R. B. Outhwaite before his early death from cancer in the spring of 2005. It completed one part of his scholarly career. The book also fills a gap in knowledge. Many treatises on the law of the Church of England contain a historical dimension and general treatments of English law sometimes have a little to say about the ecclesiastical courts. But most of these works approach the subject from the outside, using evidence from the common law to describe what happened in the spiritual forum. That is necessarily second-hand evidence. And despite some forays into the history of the courts of the church after their restoration in the 1660s, such as the two excellent books written by Professor Stephen Waddams of the University of Toronto, there has been no overall account of the history of ecclesiastical jurisdiction itself. Little has been written from the perspective of the general historian, that is, the historian who seeks to trace the fate of the courts as they found their way forwards after the Elizabethan Settlement and then, later on, as they approached the demise of their jurisdiction over the laity in the mid-nineteenth century. Brian was that historian, and this is the gap his work fills.

My part in the production of this book has not been significant. I did both enjoy and benefit from a friendship with Brian, having had the good fortune to be elected to a fellowship at his college, Gonville and Caius, during the year I served as Goodhart Professor in Cambridge. I also knew something about the ecclesiastical courts from my own work on their history prior to the 1640s. For these reasons it fell to me to read through and undertake some editing of the typescript he left at his death. I have corrected a few mistakes, occasionally amended the author’s prose in the interest of clarity and added a few details, bibliographic and factual. However, this remains Brian’s book and accomplishment throughout. I have done nothing – at least nothing consciously – to alter his conclusions or approach. The only real change of which I am conscious is to have made his language slightly more ‘legal’ in tone and substance.

I am sure that Brian himself would have made additions and changes had he been spared time to do so. Indeed, he left notes for a final chapter, in which he intended to sum up and clarify his conclusions. He particularly wished, for example, to stress the relative importance of the instance side of ecclesiastical jurisdiction. Even before the end of the seventeenth century, it was jurisdiction in contests between private parties about tithes, testaments and defamation that provided the great bulk of the work (and income) for the English civilians, or ecclesiastical lawyers. The ex officio side, prosecutions relating to immorality or religious dissent, actually played a smaller role in the maintenance of the church’s place in the history of English law than some histories of the so-called bawdy courts suggest. Of course, it is true that court officials also profited from ex officio prosecutions. Those prosecuted had to pay what we would call ‘court costs’. But Brian thought that too much attention had been paid to the ‘bawdy’ side of ecclesiastical jurisdiction, and he wished to stress this corrective point.

Brian’s notes show that he would also have added to his conclusions about the several ways in which the jurisdiction of the courts was effectively diminished. Prior to the nineteenth century, little was lost as a direct consequence of parliamentary legislation. Such restrictive measures as were introduced usually removed jurisdiction that had largely disappeared anyway. Nor did he think that emphasis could rightly be laid on efforts from common lawyers to restrict the scope of ecclesiastical jurisdiction. Instead, he wished to stress change in attitudes among those affected by the system. Perhaps he left something out by not taking up the legal mechanisms by which ecclesiastical jurisdiction was curbed, but what he wrote is nonetheless helpful – as for example in his discussion of the unwillingness of churchwardens to present men and women for discipline even though they were required to do so in the official sources of the day.

The process by which Parliament eventually did dismantle the church’s existing jurisdiction in the mid-1800s is also a theme to which his notes show he would have returned in concluding. Cases involving scandals among the clergy and long-repeated complaints against the fees exacted by the courts obviously played a part. But these were not new. They can be found in virtually every period since the courts were established in the second half of the thirteenth century. However, the pressure for reform was building in the first half of the nineteenth. The church no longer maintain its claim to the allegiance of virtually the entire populace. Change was ‘in the air’ in any event. The process of parliamentary manoeuvring by which it came is a subject on which Brian had valuable things to say. Most of them are in fact mentioned in the final chapters of this book. The initial strategy – wholesale reform – proved less effective than piecemeal changes. He shows the gradual process by which this lesson became clear to participants. Still, it would have been better to have had Brian’s more general reflections on this topic.

No one – least of all Brian Outhwaite – would claim that this book is the final word on the subject. It has little to say, for example, about the careers and works of the English civilians, some of whom are well worth fuller study. It has even less to say about many of the legal technicalities attending, say, the law of last wills and testaments or the working of Lord Hardwicke’s Marriage Act. But what it does, it does very well. It presents a clear picture of what happened to the several heads of jurisdiction exercised by the courts of the church from time immemorial as they passed into modern times. Brian’s fair-minded examination, found in the first half of the book, of the work by other scholars who have drawn conclusions from the court records is itself a useful advance in scholarship. He brought to his assessment a sophisticated understanding of the economic forces that affected the exercise of eccesiastical jurisdiction. His notes suggest that he meant to go further with the evidence presented in this book, discussing the wider question of whether eighteenth-century England can accurately be described as an ancien regime. He thought the history of ecclesiastical jurisdiction in England had a bearing on it. This would have been a worthwhile discussion, I have no doubt. We can now only lament that he did not have time enough to complete it. But we can also be glad that this book exists. It has been an honour for me to have had a hand in securing its completion.