Modern Ecclesiastical Jurisdiction
by Philip Jones
Lord Penzance, Dean of the Arches in the late 19th century, did much to modernise ecclesiastical jurisdiction. In Phillimore v Machon (1876) 1 Probate Division 481 he signified the Church courts’ recognition of the loss of their jurisdiction over the laity. In Combe v de la Bere (1881) 6 Probate Division 157 he remoulded the jurisdiction over the clergy from a jurisdiction pro salute animae into a modern disciplinary jurisdiction.
The process of modernisation was completed by Lord Penzance’s successor as Dean of the Arches, Sir Lewis Dibdin, in Banister v Thompson (1908) Probate 362, which clarified the law governing exclusion from Holy Communion. This is discussed separately.
In the case of Peek v Trower (1881) 7 Probate Division 21, Lord Penzance also effectively inaugurated the modern faculty jurisdiction, though unfortunately his judgment in the later case of Nickalls v Briscoe (1892) Probate Division 269 gave rise to subsequent misunderstandings. This is also discussed separately.
Phillimore v Machon
Mr Machon was a farmer, not a clergyman or churchwarden. Walter Phillimore, son of Sir Robert, was Vicar-General of Lincoln, though aged just 30. He prosecuted Mr Machon in the ecclesiastical court for allegedly swearing a false affidavit in order to obtain a marriage licence.
Lord Penzance was plainly irritated by the precocious Phillimore’s attempt to revive the (by then) obsolete ecclesiastical jurisdiction over the laity. The difficulty, however, was that the jurisdiction to try this particular offence had not been expressly abolished by Act of Parliament.
The difficulty was solved by holding that the ecclesiastical jurisdiction had been inferentially abolished by an Act of Parliament. This Act had conferred criminal jurisdiction in respect of false oaths on the secular courts. By doing this Parliament had withdrawn the jurisdiction from the ecclesiastical court.
Lord Penzance cited Coke:
‘where the common or statute law give remedy in foro seculari … the conusans of that cause belongs to the King’s temporal courts only: unless the jurisdiction of the ecclesiastical court be saved or allowed by the same statute to proceed …’ (p.489).
Phillimore’s suit was dismissed with costs.
The case is useful for its approach to outdated law. Lord Penzance noted that ‘the punishment of the laity for the good of their souls by the ecclesiastical courts would not be in harmony with modern ideas’ (p.487). However, he acknowledged that contemporary thought alone ‘form[s] no reason for rejecting the jurisdiction, if it exists in law, but [it] ought to make the Court careful in asserting such a jurisdiction if its existence is not plainly established …’.
Phillimore had not been very careful in this respect. Lord Penzance noted that he had been unable to cite a similar prosecution in an ecclesiastical court within the previous 200 years.
These dicta acknowledge that a jurisdiction may be abolished only by statutory authority, express or implied. However, they also suggest that, where the jurisdiction is plainly anachronistic, it is wrong, as a matter of policy or discretion, for the Court or its officials to seek to revive it.
Combe v de la Bere
The Rev Mr de la Bere was convicted of various ‘ritualist’ offences: ‘unlawful use of lighted candles … unlawful elevation of the paten … unlawfully kneeling or prostrating himself …’ (p.158). The Court of the Arches suspended him for six months. He defiantly continued to officiate in his church and also obstructed the clergyman appointed to stand in for him during his suspension.
Such flagrant disobedience left the Court with little alternative but to deprive Mr de la Bere of his living. However, Lord Penzance carefully discussed the origin and scope of deprivation as an ecclesiastical penalty. He found that there were ‘very meagre records of ecclesiastical law’ on the point (p.162).
Deprivation is deprivation from office. It therefore necessarily affects property rights. However, Lord Penzance noted that ‘in [no] case of purely spiritual cognizance [have] the temporal courts … questioned the propriety of this sentence or the right of the [ecclesiastical] court to inflict it’.
Thus he concluded that the ecclesiastical court had jurisdiction at common law to deprive a clergyman from office. (Later, of course, the penalty was sanctioned by statutory authority.)
Citing Ayliffe, Lord Penzance held that ‘All the causes of deprivation may be reduced to these three heads …
 want of capacity,
 contempt and
 crimes’ (p.163).
‘Want of capacity’ may refer to some medical incapability or to legal incapacity (for example, if the incumbent is not an ordained priest). ‘Contempt’ is disobedience to ecclesiastical law, or to the lawful orders of the ecclesiastical authority.
Lord Penzance then stated the criteria for deprivation: ‘the gravity of the offence in each particular case taken in connection with its attendant circumstances’ (pp.169-70). Also ‘one mode of measuring the gravity of an offence is to consider the obligations which have been broken through the committing of it’ (pp.174-5).
The case established that the purpose of modern ecclesiastical discipline is not ‘the soul’s health’ or the offender’s ‘reformation of manners’. Discipline serves the public order of the Church, which demands the exclusion from office of those guilty of serious or persistent misconduct.
Combe v de la Bere was affirmed by the Court of the Arches in Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012.
The Rev Mr Bland did not get on with his parishioners. He was convicted in the consistory court of various offences of neglect of duty and unbecoming conduct.
Mindful of the fraught situation in Mr Bland’s parish, the chancellor sentenced him to be deprived of his living, holding that ‘I should be failing in my duty if I did not … ensure that the convicted clerk and the cures where he was working part company now for ever’ (p.1021).
However, the Arches strongly disapproved of this sentence, holding that it was ‘a wholly wrong approach’ to use deprivation as a tool to resolve a difficult pastoral situation. It followed Combe in holding that ‘the paramount consideration in selecting the appropriate sentence … should be the gravity of the offence … or the totality of the offences …’.
However, the Court of the Arches agreed that, if the proven offence was of sufficient gravity to warrant deprivation, it may be relevant to consider ‘the interests of the parish together with the other relevant circumstances’.
On Mr Bland’s appeal, the Court of the Arches overturned all his convictions, except a conviction for writing a number of rude letters, and sent him back to his parish with a rebuke. (The pastoral situation there did not improve, indeed it deteriorated, and for many years Mr Bland’s Sunday services were attended only by his housekeeper.)