Church Courts 1680 - 1840

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This book examines the development of the courts of the Church of England from 1680, William Sandcroft’s first year as Archbishop of Canterbury, to the Church Discipline Act of 1840. By illustrating the law and practice of the courts during this period, the author suggests that there was movement away from the traditional jurisprudence established by the canon law of the Church of England to regulation by Parliamentary legislation.

The author begins by looking at the ecclesiastical courts as they existed throughout much of the period. The procedures were regulated by the canon law, and the author examines these and the nature of the criminal proceedings that comprised the jurisdiction of these courts. He notes the origins and training of those who staffed these courts, the advocates and proctors, and finds them firmly rooted in the civil and canon law. The power of the church courts to censure and punish both the clergy and laity for spiritual offenses is explored in some detail. This leads inevitably to the particular issue of clerical discipline and the role of the bishop in trying to enforce canon law as it applied to his clergy. The legislative intervention of Parliament by Lord Hardwicke’s Marriage Act of 1753 to prevent clandestine marriages might have been seen to have been an encroachment into an area traditionally within the cognisance of the church courts and the canon law. Even more directly, the Clergy Discipline Act of 1840 now sought to determine how the bishop might discipline his clergy.

There is much here about the ecclesiastical and canon law of the Church of England itself in this period, the courts in which it was administered, criminal procedure and its technicalities, including the power to punish and discipline. Individual cases and contemporary correspondence, frequently drawn from archival sources, are extensively used to exemplify the changes that were taking place in the courts over this period.


“With characteristic modesty, the late Reverend Michael Smith presents this volume of essays in the wider perspective as but one contribution towards the publication of a much needed definitive volume on the history of the ecclesiastical courts of England and Wales. His aim in the volume is clear: to present the legal framework within which the church courts, and those involved in their administration, operated in the period 1680 to 1840. The essays represent an invaluable resource for a wide range of scholars and others with an interest in the historical development of ecclesiastical law, as effected in the church courts ... This volume will continue to nurture further study in this particular field ...” – (from the Foreword) Professor Norman Doe, Cardiff University

“Rev. Michael Smith’s story of the development of canon to ecclesiastical law is remarkable in two respects. It gives the reader, even a general reader with at least some understanding of technical terms, a lively introduction to the actual working of the ecclesiastical courts from the Restoration to the end of Doctor’s Commons. It does this by paying careful attention, through painstaking research, to the records of the courts. It also contributes to our understanding of the way in which the ecclesiastical law actually emerged by virtue of the development of precedent in the common law, coupled to the meager reporting of ecclesiastical case precisely because precedent had not heretofore been present ...” – Rt. Revd. Christopher Hill, Bishop of Guildford

“ ... Inevitably, the story of mankind’s salvation as the Law knows it is peopled by the insignificant sinners whose names are unknown to grander history in the Whig tradition, but this work is all the more fascinating for that, since the reader can so readily identify with those unknowns in whose paths, but for the grace of God, he too might have strayed – or perhaps has ... The lawyers here, like their clients, are largely not the great or always the good, but the more humble and no less necessary advocates and proctors, chancellors, registers and notaries who sustain the fabric of justice in the name of God – practitioners of a Canon Law growing throughout this period less distinct from the Common Law, and increasingly shaped by Statute ...” – Revd. John Masding (retired), Ecclesiastical Law Society

“With the implementation of the Clergy Discipline Measure 2003 now imminent, the time is opportune for a reappraisal of earlier attempts to regulate the behaviour of clergy through legal process. In this collection of essays, the author makes a valuable contribution to our understanding of the background from which stemmed the more recent legislative experiments. The period which he chose, running from the resurgence of Anglicanism after the Civil War through to the passing of the Church Discipline Act of 1840, has hitherto suffered unmerited scholarly neglect … The author argues persuasively that a better understanding of the fundamentals of canon law would have improved the quality of the Victorian legislation. This book will be of particular interest to canonists and historians, professional and amateur alike.” – Timothy Briden, Vicar-General of the Province of Canterbury and Secretary of the Ecclesiastical Judges Association

Table of Contents

Foreword by Norman Doe
1. The Ecclesiastical Courts
2. Canonical Jurisprudence
3. Censures and Penalties
4. Criminal Procedure
5. The Role of the Bishop in Clergy Discipline Cases
6. Cases of Clergy Discipline
7. Commissions and Clandestine Marriages
8. The Influence of Statute Law
9. The Final Flaring of a Dying Candle
Table of Manuscripts Referred to
General Index
Index of Cases
Index of Citations from the Corpus Juris Canonici
Index of Statutes

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