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The Court of Arches: Jurisdiction to Jurisprudence – ‘Entirely Settled’?
Published online by Cambridge University Press: 23 August 2021
Abstract
The Arches Court, the court of appeal of the Province of Canterbury in the Church of England, has existed for more than 700 years. Its evolution – driven by principle, politics and pragmatism – is a fascinating reflection of a key tribunal in the court system of the English Church, and the site of major historical and often contentious developments within the Church. Its appellate status has not changed; it still has jurisdiction over faculties and clergy discipline; its judge is still appointed by the archbishop; and its jurisprudence has contributed much to the development of English ecclesiastical law. However, over the centuries its jurisdiction has contracted; the courts to which appeals against its decisions lie have changed; its historical lawyers of civilian advocates and proctors have been replaced by common law barristers and solicitors; the title for its judge, Dean of Arches, has survived by accident; its procedure has been simplified; and its decisions have throughout its history been respected but today have the authority of binding precedents. The article takes the story up to 2018, when the Ecclesiastical Jurisdiction and Care of Churches Measure provided that a decision of the Arches and of the provincial Chancery Court of York is today to be followed as if it were a decision of the other court.
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- Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of Ecclesiastical Law Society
Footnotes
1
This article is the slightly amended text, with added notes, of a lecture on the history of the Court of Arches delivered at the church of St Mary-le-Bow, Cheapside, City of London, 20 November 2019. I am grateful to the Revd George Bush for the invitation to lecture and to the Dean of Arches, the Right Worshipful Charles George QC, for helping me write this article.
References
2 Godolphin, J, Repertorium Canonicum or An Abridgement of the Ecclesiastical Laws (London, 1678), pp 106–107Google Scholar; see also Oughton, Thomas, Ordo Judiciorum (London, 1728)Google Scholar, translated from the Latin in J Law, Forms of Ecclesiastical Law (London, 1831), Introduction, p x: the church was also called ‘St Mary Arches’ or ‘New Mary of Arches’.
3 Godolphin, Repertorium Canonicum, p 103; H Consett, The Practice of the Ecclesiastical Courts (third edition, London, 1728; first published 1685), p 2. For a brief overview, see also Ayliffe, J, Parergon Juris Canonici Anglicani (London 1726), p 192Google Scholar.
4 Oughton, trans Law, Forms of Ecclesiastical Law, pp x–xi: Oughton was a proctor of the court until c 1740.
5 R Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500–1860 (Cambridge, 2006), p 4, n 13, citing D Slatter, ‘The records of the Court of Arches’, (1953) 4 Journal of Ecclesiastical History (1953), 139–153 at 142.
6 S Hallifax, An Analysis of the Roman Civil Law (London, 1795), III.X: in a discussion of the Arches Court, ‘all the principal courts are now holden in Doctors Commons’; see also Oughton, trans Law, Forms of Ecclesiastical Law, p xi.
7 D Keene and V Harding, ‘St. Mary le Bow 104/0’, in Historical Gazetteer of London before the Great Fire Cheapside; Parishes of All Hallows Honey Lane, St Martin Pomary, St Mary Le Bow, St Mary Colechurch and St Pancras Soper Lane (London, 1987), pp 199–212, British History Online, <http://www.british-history.ac.uk/no-series/london-gazetteer-pre-fire/pp199-212>, accessed 5 September 2019.
8 R Burn, Ecclesiastical Law (London, 1775), vol I, p 91: he cites Consett but gives no other authority. Oughton, trans Law, Forms of Ecclesiastical Law, p xi, repeats the narrative about Alexander and Kilwardby; however, Law adds an editorial note (p xii, n 3), stating: ‘According to Conset, chap. 2.1.1, it was Pope Alexander III, and not Archbishop Kilwarby, who “abrogated and abolished all the ancient and obsolete laws of the Court of Arches, and set up others in their stead.” Dr. Burn, in his Eccl. Law, vol. I, p. 98, states, that the ancient statutes were abrogated by the pope and the archbishop – Ed.’ Consett, Practice of the Ecclesiastical Courts, p 4.
9 See I Churchill, Canterbury Administration (London, 1933), vol I, pp 424ff, for a discussion of the origins and early history of the court.
10 R Helmholz, The Oxford History of the Laws of England, Volume I: the canon law and ecclesiastical jurisdiction from 597 to the 1640s (Oxford, 2004), p 213; Godolphin, Repertorium Canonicum, pp 106–107: ‘it be not now in use as heretofore’; Oughton, trans Law, Forms of Ecclesiastical Law, pp 80–81: a party could choose between the two courts.
11 Godolphin, Repertorium Canonicum, pp 103–104: ‘The Statutes and Ordinances of [the] Court are very Ancient.’
12 W Bryson (ed), Miscellaneous Reports of Cases in the Court of Delegates (Richmond, 2016), p 4. See also G Duncan, The High Court of Delegates (Cambridge, 1971).
13 Godolphin, Repertorium Canonicum, pp 100–101, citing Coke's Institutes, para 4, ‘Court of Arches’. After the Restoration the jurisdiction of the Arches Court was in all matters concerning the jurisdiction of ecclesiastical courts in general. It heard ‘instance’ cases between two parties (eg defamation, matrimonial and testamentary cases (until 1858)); and ‘ex officio’ cases prosecuted by or on behalf of the judge (eg cases of lay and clerical ‘correction’, and parish affairs (ie church fabric, faculties, church rates, tithes etc)). There are also some cases of officials of lower courts being sued for illegal practices, and proctors suing for their fees.
14 Consett, Practice of the Ecclesiastical Courts, p 5: this is presented directly as the authority of the Dean of Arches; for the proposition that the court has jurisdiction in ‘all Ecclesiastical Causes whatsoever’, he cites Lyndwood.
15 Butler v Dolben, 2 Lee R 316, emphasis in original.
16 A Stephens, A Practical Treatise of the Laws Relating to the Clergy (London, 1848), p 53. The Court of Delegates so held, says George Lee, in ‘the case of Dr. Pelling v Whiston’, n 3, citing ‘1 Com. 199’; R Phillimore, Ecclesiastical Law (second edition, London, 1895), p 942.
17 T Harris, ‘The work of the English ecclesiastical courts, 1725–1745’, in T Harris (ed), Studies in Canon Law and Common Law in Honor of R.H. Helmholz (Berkeley, CA, 2015), pp 251–279.
18 Hallifax, Analysis of the Roman Civil Law, III.X. See also Burn, Ecclesiastical Law, vol I, p 90: the dean is also ‘judge of the peculiars’, that is, ‘all those parishes, fifty seven in number, which tho’ lying in other dioceses, yet are no way subject to the bishop or archdeacon, but to the archbishop’; and A Stephens, Practical Treatise, p 56: parishes ‘dispersed through the province of Canterbury’.
19 See, eg, R Outhwaite, Rise and Fall of the English Ecclesiastical Courts. After the Restoration, between one third and one quarter of cases came from London and the Home Counties. Up to 1800, nearly one third related to probate, about 11% to defamation, 4% to clerical discipline, 4% to divorce or separation, 5% to non-payment of rates and 4% to non-payment of tithes. After 1800, cases of defamation dropped to 1% and testamentary cases declined to 14% but cases of divorce rose to 25% and cases of clerical discipline to 20%: see <http://archives.lambethpalacelibrary.org.uk/calmview/Record.aspx?src=CalmView.Catalog&id=arches>, accessed 30 May 2021.
20 Halsbury's Laws of England, vol XIV: Ecclesiastical Law (fourth edition, London, 1975), para 1285, n 1: Church Discipline Act 1840, s 13 (letters of request); Public Worship Regulation Act 1874, s 9 (ornaments); B Whitehead, Church Law (second edition, London, 1899), p 22.
21 Halsbury's Laws of England, vol XXXIV: Ecclesiastical Law (London, 2011) para 1045. See also, today, Canon G 1: Ecclesiastical Courts and Commissions.
22 M Hill, Ecclesiastical Law (fourth edition, Oxford, 2018), para 260.
23 Edward Coke, the common lawyer, found a ‘a very Ancient Record of Prohibition, In Curia Christianitatis coram Decano de Arcubus London’ in a case from 1279, cited by Godolphin, Repertorium Canonicum, p 103; the writ continued to be available after the Reformation, and Godolphin in 1678 has extensive lists ‘in what Cases it hath been granted’ and ‘in what Cases [it] hath been denied’: ibid, Index, ‘Prohibition’, as does R Grey, A System of English Ecclesiastical Law (London, 1730), p 385 (and see p 383 for a summary of the nature of prohibition).
24 J Baker, Introduction to English Legal History (fourth edition, Oxford, 2007), p 169 (also pp 43, 59): there was no requirement in the Province of York to belong to Doctors’ Commons, nor for a doctorate, and no corresponding society in York. See also Grey, System of Ecclesiastical Law, pp 371–372; P Floyer, The Proctor's Practice in the Ecclesiastical Courts (London, 1746), p 6. See generally G Squibb, Doctors’ Commons: a history of the College of Advocates and doctors of law (Oxford, 1977); P Barber, ‘The fall and rise of Doctors’ Commons?’, (1996) 4 Ecclesiastical Law Journal 462–469.
25 Godolphin, Repertorium Canonicorum, pp 100–103, emphasis in original; Oughton, trans Law, Forms of Ecclesiastical Law, pp xii–xiv: the dean became ‘commissary general’ of the official when the latter was engaged in ‘momentous affairs of government … not only at home, but also abroad, by reason of his professional studies having drawn his attention to the law of nations, and by … a superior acquaintance with the customs which govern the intercourse of states’; Consett, Practice of the Ecclesiastical Courts, p 4.
26 Consett, Practice of the Ecclesiastical Courts, p 5: ‘The Official of this Court is at this Day (as he has wont so to be) called Dean of the Arches, being for the most part employed in this Kingdom (as well as in Part beyond the Seas) in the King's Affairs, and therefore seldom resident within the City of London. But, he [the Official] being absent, the Dean of the Deanery of the Arches (whose Jurisdiction is terminated by the Limits or Bounds of Thirteen Parishes in London, which are belonging to the Ecclesiastical Jurisdiction of the Archbishops of Canterbury) is often substituted, as the Surrogate of that Official (and that by Prescript of the ancient Statutes of the said Court) in which State he hears and determines Causes as Official.’
27 Oughton, trans Law, Forms of Ecclesiastical Law, p xiv, emphasis in original; see also p 18: the judge was styled ‘official’ because ‘in those days the Archbishop of Canterbury had no other official within his province’.
28 Grey, System of Ecclesiastical Law, p 363, emphasis in original; see also pp 375–376: ‘Official Principal of the Archbishop’. See also Burn, Ecclesiastical Law, vol I, p 90.
29 Stephens, Practical Treatise (1848), p 52, citing the reports of John Haggard (d 1856), namely, ‘1 Hagg. 48.n’; Phillimore, Ecclesiastical Law, p 214, citing the Godolphin passage; Burn, Ecclesiastical Law, vol I, p 90, citing E Gibson, Codex juris ecclesiastici Anglicani (London, 1713), p 104.
30 Phillimore, Ecclesiastical Law, p 924: he is styled ‘Official Principal of the Court of Arches’.
31 Ecclesiastical Jurisdiction Measure 1963, ss 3 and 13.
32 C Mynors, Changing Churches: a practical guide to the faculty system (London, 2016), p 182 (para 8.1.2). The current Dean of Arches has always chosen one chancellor from each province.
33 Hill, Ecclesiastical Law, para 260. See also Canon G 2.
34 Baker, Introduction to English Legal History, p 6. See also W Senior, ‘The advocates of the Court of Arches’, (1923) 39 Law Quarterly Review 493–506.
35 Canons Ecclesiastical 1603/4, Canons 129, 131 and 133.
36 Duncan, High Court of Delegates, p 10, n 5.
37 F Logan (ed), The Medieval Court of Arches (Woodbridge, 2005).
38 Floyer, Proctor's Practice, p 4; at pp 9–11 he names 23 advocates and over 50 proctors, including those ‘allowed to practise as such’; Floyer himself appears on the list of proctors.
39 M Barber, ‘Records of the Court of Arches in Lambeth Palace Library’, (1993) 3 Ecclesiastical Law Journal 10–19.
40 Canons Ecclesiastical 1603, Canons 123 and 124; Earl of Hertford v Lord Mounteagle (1606): see Duncan, High Court of Delegates, p 191, n 2.
41 Floyer, Proctor's Practice, p 4.
42 D Owen, The Medieval Canon Law: teaching, literature and transmission (Cambridge, 1990), p 1.
43 Godolphin, Repertorium Canonicorum, p 104; he cites Lyndwood in this passage.
44 Oughton, trans Law, Forms of Ecclesiastical Law, p xvii.
45 Canons Ecclesiastical 1603/4, Canon 130.
46 Duncan, High Court of Delegates, p 169, n 6.
47 5, 6 William & Mary, c 21: Gibson, Codex juris ecclesiastici Anglicani, p 1084.
48 Floyer, Proctor's Practice, pp 5–6: ‘Their Fees for Admission are the same as the Advocates, but they usually treat the whole Profession upon their Admission, which is very expensive to them.’
49 C Crawley, Trinity Hall: the history of a Cambridge college, second edition enlarged by G Storey (Cambridge, 1992), p 71.
50 Floyer, Proctor's Practice, p 6.
51 Oughton, trans Law, Forms of Ecclesiastical Law, pp xiii, 9–10; see also Appendices VI and VII, and pp xiv–xv: eg ‘Behold! how solemn, how awakening the aspect of justice! How beautiful her form, how graceful her proportions, how dignified her carriage! How illustrious her descent!’
52 Godolphin, Repertorium Canonicorum, p 104; he cites Lyndwood in this passage.
53 If the parties or witnesses were unable to give their evidence to the proctors in London, commissions in partibus were issued to local clergy to take answers and return the answers and depositions to the court.
54 For a full account of these norms, see Oughton, trans Law, Forms of Ecclesiastical Law, eg pp 79–107: citations and citation certificate.
55 See <http://archives.lambethpalacelibrary.org.uk/calmview/Record.aspx?src=CalmView.Catalog&id=arches>, accessed 2 June 2021.
56 See G Bray, The Anglican Canons 1529–1947 (London, 1998), p cxii: Canon 79 of the deposited canons of 1874.
57 Phillimore, Ecclesiastical Law, p 998; see also, p 1023.
58 H Cripps, A Practical Treatise of the Law Relating to the Church and Clergy (eighth edition, London, 1937), p 156.
59 J Baker, Reports from the Lost Notebooks of Sir James Dyer, vol II (London, 1994), p 318.
60 R Helmholz (ed), Three Civilian Notebooks: 1580–1640 (London, 2010), p 38.
61 Ibid, pp 56, 63, 110, 143.
62 For medieval cases, see N Adams and C Donahue (eds), Select Cases from the Ecclesiastical Courts of the Province of Canterbury Cases (London, 1978).
63 Grignon v Grignon, 1 Hagg 536; Stephens, Practical Treatise, p 53.
64 Saunder v Davies, 1 Add 296; the precedent rejected was the argument of counsel, Dr Swaby, in Watson v Thorp, 1 Phill 277: see Stephens, Practical Treatise, pp 54–55.
65 Mullincheape and Cooke v Jones: see Helmholz, Three Civilian Notebooks, p 121.
66 Patten v Castleman (1753) 1 Lee 387; 161 ER 143.
67 (1758) 2 Lee 515; 161 ER 424. See Doe, N, The Legal Framework of the Church of England (Oxford, 1996)CrossRefGoogle Scholar: this argued that the case decided a much narrower point. For support of this view, see also Smith, M, ‘An interpretation of Argar v Holdsworth’, (1998) 5 Ecc LJ 34–41Google Scholar; compare Humphreys, J, ‘The right to marry in church: a rehabilitation of Argar v Holdsworth’, (2004) 7 Ecc LJ 405–417Google Scholar.
68 Kemp v Wickes (1809) 3 Phillimore 264 at 276 per Nicholls J.
69 Dawe v Williams (1824) 162 ER 243; Lee v Matthews (1830) 3 Hag Ecc 169; 162 ER 1119; Taylor v Morley (1837) 1 Curt 470; 163 ER 165.
70 (1876) 1 PD 481 per Lord Penzance.
71 Bannister v Thompson (1908) P 362: see also R v Dibdin [1912] AC 533 (HL), [1910] P 57 (CA); Bland v Archdeacon of Cheltenham [1972] 1 All ER 1012: for conscientious objection, the court used the unreported Arches decision Watkins-Grubb v Hilder (1965).
72 Re Tyler [1992] 1 All ER 437 at para 442.
73 Helmholz, R, The Profession of Ecclesiastical Lawyers (Cambridge, 2019), p 179CrossRefGoogle Scholar: Hughes v Herbert (1756) 2 Lee 287; 161 ER 343 (Court of Arches); Robins v Wolseley (1757) 2 Lee 421 at para 443; 161 ER 391 at para 398 (Court of Arches).
74 Halsbury's Laws of England: Ecclesiastical Law (fourth edition) para 1271. See also Doe, Legal Framework of the Church of England, p 156.
75 In Re St Nicholas Sevenoaks [2005] 1 WLR 1011 at 1015.
76 Church of England (Miscellaneous Provisions) Measure 2018, s 7 (inserting a new section 14A in the Ecclesiastical Jurisdiction and Care of Churches Measure 2018); this applies to its jurisdiction under s 14 of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 and s 7 (discipline) of the Ecclesiastical Jurisdiction Measure 1963.
77 See Sam Thai Chan [2016] ECC Dur 2.
78 General Synod Record, February 2018, pp 144–145.
79 In the matter of Clayton Cemetery, Bradford (and of Colin David Berry, Deceased) [2019] ECC Lee 2.
80 Hill, Ecclesiastical Law, para 1.32.
81 Oughton, trans Law, Forms of Ecclesiastical Law, p xviii.