Reports of Committees

AuthorC. d'Olivier Farran
Publication Date01 Mar 1955
DOIhttp://doi.org/10.1111/j.1468-2230.1955.tb00291.x
REPORTS
OF
,COMMITTEES
PROPOSED
REFORM
OF
THE
ECCLESIASTICAL
COURTS
MANY
lawyers would appear to be of the opinion that the church
courts ceased to function altogether when their jurisdiction
in
testamentary and matrimonial matters was transferred to the
statutory tribunals created uqder the Court of Probate Act and
Matrimonial Causes Act
of
1857.
That this was not the case was
shown in
R.
v.
Chancellor
of
St. Edmundsbury and Zpswich Diocese
([1948]
1
K.B.
195),
in which the Court of Appeal reminded
us
that the law which they apply, while distinct in history and sub-
stance from the system administered by the temporal courts, is
none the less
the King’s ecclesiastica1 law
(per
Wrottesley
L.J.
at p.
221).
The report of the recent Commission
on
the Ecclesias-
tical Courts, under the chairmanship of LloydJacob
J.,
set up
in
1951
by the Archbishops at the request of the Convocations,
contains a valuable survey of the history of these courts, as well
as important recommendations for their reform. (S.P.C.K.,
15s.
6d.)
The traditional system of church courts consists of a hierarchy
commencing with the Archdeacon’s Court, which is
in
practice
obsolete except for visitations. The Commission do not propose
to change this situation. Above this comes the Consistory Court
of the Diocese, staffed by the Chancellor, now normally but not
riecessarily a barrister. The Commission suggest that this should
be made obligatory, even in the case of a clerk in holy orders,
adding an additional requirement of seven years’ practice-a pro-
vision almost certain to exclude the possibility
of
such a clerk’s
being appointed, for even those few clergy who had been called
to the Bar before ordination as a rule lack any such length of
practical experience. Further-and here their recommendation
runs counter to that of several earlier commissions-they believe
that it should not be permissible for the Bishop himself to preside
over the court instead of-or even with-his
alter ego,
the
Chancellor. There is an interesting parallel here with the inability
of the Sovereign
to
preside in her own courts, as established in the
celebrated
Prohibitions del
Roy
(
(1607)
12
Rep.
63).
Above this
comes the court of the province, picturesquely called the Court of
Arches in the case
of
the province of Canterbury, the Court of
Chancery in that of York. Under the Public Worship Regulation
Act,
1874,
the same person must be appointed judge
of
both
provincial courts, in order
to
secure uniformity of decision within
the established Church: a rule wisely retained by the Commission.
Above that there is the possibility
of
an appeal
to
the Judicial
Committee of the Privy Council. This “final court
of
appeal
156

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