The Court of Arches is today the court of appeal of the Province of Canterbury in the Church of England. The court has existed for more than 700 years. The words ‘entirely settled’, in the title for this article, are from a judgment of Sir George Lee, Dean of Arches from 1751 to 1758; he said: ‘The jurisdiction of the Court of Arches was entirely settled by the statute 23 Hen. 8, c. 9’. I explore here whether the jurisdiction, jurisprudence and other aspects of the Court of Arches, in its long history, have ever been ‘entirely settled’. The court's evolution is, in fact, 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. I look at five areas: jurisdiction, personnel, records, process and jurisprudence in some landmark cases over the centuries. What follows uses literature on the Arches Court from the Reformation to today.
ORIGIN AND JURISDICTION
The court has been known as the Court of Arches since mediaeval times, when the Roman Church in England was governed by papal law and native church law. Of course, it was so named for the place where it sat: in the Church of Sancta Maria de Arcubus – St Mary-le-Bow. With 12 other London churches, this church was a ‘peculiar’ of the archbishop, outside the jurisdiction of the Bishop of London. John Godolphin wrote in 1678 that the court was so called ‘by reason of the Steeple or Clochier thereof raised at the top with Stone-pillars in fashion like a Bow-bent Arch-wise’.Footnote 2 Henry Consett in 1685 says that it was also called ‘Alma Curia Cantuariensis de Arcubus … which probably receives its Name from the Effects, or by a Metaphor, being the Channel whence Justice flows like a Crystalline Stream’.Footnote 3 By 1728, Thomas Oughton explained that this ‘title of Alma … fair, pure, and nourishing’ was used to signify how it was held in ‘high estimation and honour’ as ‘the most celebrated court of … the Archbishop of Canterbury’.Footnote 4
The court sat in a room over the north aisle of the eleventh-century crypt; the room was later rebuilt, enlarged and used as a vestry. The court sat here until the church was destroyed by the Great Fire of 1666, at which point it moved to Exeter House in the Strand until 1672,Footnote 5 and then to the premises of Doctors’ Commons, Knightrider Street.Footnote 6 On occasion, it also sat at Number 1, The Sanctuary, Westminster, and at St Paul's Cathedral.Footnote 7 The archbishop had three church courts in London – the Arches Court, the Court of Audience and, dealing with wills, the Prerogative Court. At Canterbury was his diocesan court, the ‘commissary’ court, for ordinary litigation there.
Scholars have not found a precise date for the establishment of the Court of Arches, but there was a mediaeval practice for archbishops to have provincial courts for appeals from local courts in the dioceses. In 1685, Henry Consett said the origin of the court was ‘uncertain’, but he related how Pope Alexander III (who died in 1181) ordered the Archbishop of Canterbury (in the reign of Henry II, who died in 1189) to abolish all the ‘obsolete law’ of the court and legislate afresh. However, Richard Burn, in 1763, claimed that the court ‘subsisted long before the time of’ Henry II. Thomas Oughton in 1728 said that ‘it is impossible’ to state the date it was set up, ‘partly by the loss of ancient records, partly by their wilful destruction, partly by the negligence of librarians’.Footnote 8
Certainly, by 1279 the court was well established. It had appellate jurisdiction throughout the Province of Canterbury; its equivalent for the York Province was (and is) the Chancery Court. Its appellate jurisdiction was to hear appeals at the instance of a party against a decision of a lower court. It also had an original jurisdiction – as a court of first instance – in matters relating to the 13 peculiars of the Archbishop of Canterbury in London; over causes sent to it from lower courts by letters of request; and over ex officio suits promoted on behalf of the Dean of Arches.Footnote 9
Its jurisdiction was wide: marriage causes, probate-testamentary disputes, defamation, church property (rates, tithes) and the discipline and morals of clergy and laity. Appeals from the Arches went to papal courts in Rome. But the auditors of the archbishop's Court of Audience – which had authority as extensive as the Arches’ – thought they too could hear appeals from the Arches. Yet, the Arches outlived the Court of Audience, which by 1728 was quite obsolete.Footnote 10 From time to time the archbishops of Canterbury made statutes for the Arches Court about its work and personnel. For example, statutes were made by Pecham in 1281, Winchelsey in 1295, Stratford in 1342 and, on the eve of the English Reformation, by Warham in 1528.Footnote 11
The Arches Court survived the Reformation, jurisdiction intact. However, whereas before the Reformation the court enforced the canon law made by the Church, after that time it enforced the ‘ecclesiastical law’ of the realm: the common law (case law), parliamentary statute and (under parliament's Clergy Submission Act 1533) pre-Reformation Roman canon law and native English church law which was to continue to apply if not inconsistent with the law of the land. The Ecclesiastical Jurisdiction Act 1531 fixed its original jurisdiction (as to letters of request) and the Act Against Appeals to Rome 1533 recognised it as the provincial appellate court. Now, an appeal against an Arches’ decision was to the new High Court of Delegates, an ad hoc royal tribunal of civil and common lawyers. From 1670 to 1750, 81 appeals went from the Arches to the Delegates, but the Delegates Court itself was replaced in 1833 by the Judicial Committee of the Privy Council.Footnote 12 After the Reformation, the Archbishops of Canterbury continued to make statutes for the Arches Court, such as those of Parker in 1573 and Whitgift in 1583.
By the Restoration in 1660, as Godolphin says, the Court has power ‘in all matters and causes Spiritual … annexed [to] the Peculiar Jurisdiction of the thirteen parishes’ (part of its original jurisdiction) and ‘all Ordinary Jurisdiction in Spiritual causes of the first instance with power of Appeal, as the superior Ecclesiastical Consistory, through the whole [Canterbury] Province’; and the dean might ‘call any person for any cause out of any part of the Province within the Diocese of any Bishop’.Footnote 13 In 1685, Consett specified that the court heard
all manner of Appeals whatsoever from any Bishops, Deans and Chapters of Cathedrals or Collegiate Churches; Archdeacons, their Officials and Commissaries, or other Ecclesiastical Judges whatsoever (except some … peculiar Jurisdictions … which belong to the [King]) … within … any Diocese.
The court also heard ‘all Complaints whatsoever against any of the aforesaid Judges (except as before excepted) for denying or delaying of Justice to be administered’ and all cases about benefices.Footnote 14
The court's original jurisdiction to hear cases sent by a diocesan court by way of letters of request was contentious in that it could override the wishes of bishops and the parties. The Dean of Arches in the 1750s, Sir George Lee, recognised this in Butler v Dolben, the case where he said its jurisdiction ‘was now entirely settled by [the statute] 23 Hen. 8. c. 9’. He explained:
the Arches is by that statute empowered to take original cognisance, by virtue of letters of request, of such causes as the civil and canon law allowed the inferior judge to devolve to the superior, arduous causes, of which matrimonial were always the chief.
The statute ‘vested the power of devolving in the [lower] judge without mentioning consent either of the bishop or parties … the bishop's consent was never required’. Moreover, if the parties’ consent had ever been necessary, ‘there hardly could be a cause commenced here by request, for the defendant almost constantly desires as many opportunities of appealing as possible for delay’. Whether the Arches accepted or refused letters of request, the Dean ‘was bound to receive them ex debito justitiae’, but ‘it was in the discretion of the inferior judge whether he would grant them’.Footnote 15 Lee's decision was still good law in 1848, and Phillimore in 1895 was still writing about letters of request.Footnote 16
During the eighteenth century, the Arches was a busy court. From 1725 to 1745, it heard 601 appeals: 211 in 1725–31, 242 in 1732–38 and 148 in 1739–45. Three observations can be made about the cases from this period: the appeal rate is fairly stable; most cases were testamentary and disciplinary appeals; and some dioceses generated more appeals than others – for instance, there was 1 appeal from Rochester, 9 from Bangor, 59 from Exeter, and 92 from London. It was also busier than the Chancery Court: in the same period, the York court heard 130 appeals, though it should be noted that its province was less populated than Canterbury.Footnote 17 We might note the business of the Court of Peculiars – this Samuel Hallifax describes in 1772 as ‘a branch of the Court of Arches’ with jurisdiction throughout the province over those entities exempt from the jurisdiction of the ordinary.Footnote 18
However, profound changes in the jurisdiction of the Arches and Church courts in general were soon to come. They were criticised heavily, with calls for reform. By the mid-nineteenth century, public attitudes had changed, dissenters resented these courts and the common law courts were flexing their muscles. So parliament abolished their jurisdiction over defamation (in 1855) and probate and matrimonial causes (removed in 1857 to new secular courts), resulting in a fall in numbers of cases heard in the Arches: from 1800 to 1858 it heard 860 cases, but from 1859 to 1900 just 136. Parliament also abolished the Church courts’ jurisdiction over church rates (1868) and tithes.Footnote 19
Driven largely by the ritualist controversies, there were also changes regarding clergy discipline. For instance, under the Clergy Discipline Act 1892, appeal now lay from the diocesan court to the Arches or to the Privy Council. Nevertheless, the Arches Court retained its original jurisdiction in discipline cases by way of letters of request. However, it lost its entire jurisdiction over the four Welsh dioceses in 1920, when the Church of England in Wales was disestablished. Thus, most cases remaining within the Arches jurisdiction were cases of disputed faculties or of clerical discipline.Footnote 20
A landmark change for the Arches Court in the twentieth century came with the Ecclesiastical Jurisdiction Measure 1963. The Measure abolished the court's original jurisdiction because it was, in the main, obsolete. The Measure allowed only the court's appellate jurisdiction to continue: that is, as before, to hear appeals in discipline and faculty cases not involving doctrine, ritual or ceremony. The Clergy Discipline Measure 2003 again preserved the court's ancient appellate disciplinary jurisdiction.Footnote 21
Today, the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 provides: ‘For each province there is to continue to be a court of the archbishop’ and ‘The court for the province of Canterbury is to continue to be known as the Arches Court of Canterbury.’ The court hears appeals in faculty cases (not involving doctrine, ritual or ceremony) from consistory courts and the vicar-general's court of Canterbury. Under the Clergy Discipline Measure 2003, an appeal lies to it from a determination of a disciplinary tribunal (or vicar-general's court).Footnote 22
The Arches’ mediaeval and post-Reformation jurisdiction was policed by the secular courts and the writ of prohibition; in 1678, Godolphin listed ‘in what Cases it hath been granted [and] denied’. It is now under the supervisory jurisdiction of the High Court, but that is another story.Footnote 23
THE PERSONNEL OF THE COURT
For centuries, the personnel of the Court of Arches consisted of the judge – the Dean of Arches; those who practised in the court – advocates (like barristers today) and proctors (similar to solicitors today); and officers, such as the registrar and the apparitors who summoned parties/witnesses and executed court orders. We know that there was a community of ‘advocates of the Arches’ in this area of London from at least the fifteenth century, which became Doctors’ Commons, with premises at Paternoster Row and then at Mountjoy House in Knightrider Street. In 1768 a royal charter incorporated the society as ‘The College of Doctors of Law exercent in the Ecclesiastical and Admiralty Courts’. Its president was the Dean of the Arches. Doctors of law from Oxford and Cambridge could be admitted as advocates by the archbishop, and elected fellows of the college. But its days were numbered with the mid-nineteenth century reforms. Advocates merged with barristers in 1857 and the college's assets were sold in 1865. It was to be wound up by surrendering the royal charter, which was never done. It is said that the society ceased to exist with the death of its last member in 1912.Footnote 24
The Dean of Arches
From the court's earliest days, the judge was styled ‘Dean of the Arches, or the Official of the Arches Court’. In fact, these were two separate offices, held by two people. Under the court's 1342 statutes, the ‘official principal’ was ‘bound’ whenever absent ‘to appoint the dean of the church of … St. Mary Arches to preside for him in his court, by a general commission’. The title ‘dean’ was used because the 13 peculiars in London over which the court had original jurisdiction were ‘called a Deanery’. The title ‘official’ is the mediaeval style for a church judge. Godolphin explained in 1678:
It is supposed that the Judge … was originally styled the Dean of the Arches, by reason of his substitution to the Archbishop's Official, when he was employed abroad in Foreign Embassies; whereby both … styles became at last in common understanding, as it were, synonymous.
The official and the Dean had ‘the same Juridical Authority, though with distinct styles in several persons’; ‘For he that was the Archbishop's Official in this Court was … obliged to Constitute the Dean of Arches as his Commissary General in his absence.’Footnote 25
So, when the court's president, the ‘official’, was not in London, the ‘dean’ of the ‘deanery’ of the 13 London peculiars acted as his substitute, deputy or surrogate. Consett in 1685 said that it is ‘by vulgar Error, he (as also the Official himself, whilst at leisure to dispatch Business) is called the Dean of the Arches’.Footnote 26 Oughton, too, in 1728:
The Dean of Arches thus continuing for a length of time to sit as judge … for the official principal, and to discharge the functions of both offices, by degrees a custom grew up, and prevailed, of calling the official himself … in his judicial capacity, indiscriminately official and dean … Dean of Arches.
Oughton also says: ‘At length the two offices of dean and official became united in the same person, and were given to the official.’Footnote 27 According to Richard Grey in 1730: ‘that these two Offices are at any Time joined in the same Person is accidental’; they ‘have been in many Instances united in one and the same Person, as they now remain’.Footnote 28 Yet, in 1848 Stephens stated: ‘The office of Dean of the Arches and Official Principal of the Court of Arches are usually, but not necessarily, held by the same person’ – they have ‘been for a long time united’. By 1873, Phillimore stated that only ‘the official principal of the Arches’ may hear appeals and that ‘In fact, no dean is now appointed.’ To confuse further, in 1775 Burn styled him ‘vicar general of the archbishop’.Footnote 29
In any event, from the start the judge was appointed by the Archbishop of Canterbury, someone different from the person appointed as Auditor of the York Chancery: two courts, two offices, two persons. This was settled for centuries, as were the requisite qualifications, which included learning and being of ‘sound doctrine, good morals, and purity of conscience’.Footnote 30 However, section 7 of the Public Worship Regulation Act 1874 made further changes: both archbishops jointly were to appoint one person, a barrister or judge, as both Dean and Auditor (subject to royal approval). The Ecclesiastical Jurisdiction Measure 1963 continued this joint archiepiscopal appointment; the candidate had to be a barrister of at least ten years, or one who had held high judicial office, and a communicant; the oaths to be taken were also continued; and there was no time limit on the appointment, but provision was made for resignation, and removal by the two archbishops jointly if the Upper House of each convocation resolved that the judge was incapable of acting or unfit to act. The dean was by virtue of that office ‘the Official Principal of the Archbishop of Canterbury’ and Master of the Faculties (itself an old office).Footnote 31
The 1963 Measure also brought in a development in disciplinary cases. As well as the dean, there were to be four other judges: two clergy (appointed by the prolocutor of the Lower House of Canterbury Convocation) and two lay, of such judicial experience as the Lord Chancellor thought fit, appointed by the chair of the Church Assembly (now General Synod) House of Laity, after consulting the Lord Chancellor. Their appointment too had no time limit, but provision was made for resignation or removal. An appeal from a consistory court in a misconduct case had to be disposed of by all the judges, but other proceedings were heard and disposed of by the dean.
There were more changes to the 1963 Measure over the following decades. The candidate for dean had to be either a person with a ten-year High Court qualification or one who had held high judicial office, and the office was held until the age of 75. Further provision was made for a deputy. Under the Clergy Discipline Measure 2003, in appeals from the disciplinary tribunal or vicar-general's court, the dean continued to sit with four judges – two clergy, two lay. In faculty appeals, the dean sits with two chancellors; ‘by custom’ one is chosen from each province.Footnote 32
Today, the 2018 Measure provides that the judge is ‘to continue’ to be known as the Dean of the Arches and Auditor, styled as Dean of the Arches for the Canterbury province and Auditor for York – and the Measure continues use of the style ‘Official Principal’ (no change from the previous Measure). The person appointed must hold or have held high judicial office, or be qualified to be a Lord Justice of Appeal (in contrast, this is a change). But the Measure does not change the rules as to joint appointment and royal approval, communicant status, retirement, resignation and removal, deputy dean or oaths.Footnote 33
The lawyers
By the end of the thirteenth century, the advocates and proctors had become a regulated body of professional lawyers, mainly law graduates. Archbishop Pecham's 1281 statutes required three years’ study of civil and canon law; the 1295 statutes stipulated four years; and those of 1342 required the degree of bachelor of canon or civil law. The requirement of a doctorate for advocates was customary but not statutory – by 1768 it was required by the royal charter for admission to Doctors’ Commons.
There were also norms on professional ethics. Advocates swore oaths to work honestly and expeditiously; under a constitution of 1273, they could not take contingent fees; and under the 1295 statutes, advocates and proctors were not to enter taverns, keep concubines, wander at night or attend public entertainments.Footnote 34 After the Reformation, the 1603 Canons forbad proctors to conclude any cause without the counsel of an advocate, and they required them to behave ‘quietly and modestly’ under pain of silence for two terms or removal from practice – because their ‘loud and clamorous Cries and Clamours … are not only troublesome and offensive to the Judges and Advocates, but also give occasion to the Standers by, of contempt and calumny towards the Court’.Footnote 35 In 1690, King's Bench held that, if the dean suspended a proctor from practising, there could be no appeal to the Archbishop of Canterbury because the dean was the archbishop's deputy – there could be no appeal from the archbishop to the archbishop.Footnote 36
Numbers were also regulated. The 1295 statutes allowed 16 advocates and 10 proctors. By the 1530s, 21 proctors were allowed in the London courts, including the Arches.Footnote 37 In the 1560s, there were 22 proctors, increased in 1583 to 28. By 1746, Philip Floyer lists as ‘officers of the court’ the dean, ‘diverse Advocates’, 2 registrars, 34 proctors, and supernumerary proctors.Footnote 38 A nineteenth-century manuscript at Lambeth Palace Library records that there were 34 proctors.
As with the advocates, so too the proctors withered. With the abolition in 1857 of ecclesiastical jurisdiction over marriage and wills, the proctors were compensated and allowed to practise in the probate and divorce courts and those of equity and common law. An Act of 1870 entitled attorneys and solicitors to practise in Church courts, except the provincial courts of Canterbury and York, and the diocesan or consistory court of London – but this ban was removed in 1877. The Solicitors Act 1974 allowed solicitors to appear in ecclesiastical courts, like barristers.
THE RECORDS OF THE COURT
Until 1733 most of the formal records of the Court of Arches were in Latin, but some were in English. Parliament forbad the use of Latin for records in all courts by a statute that came into force in 1733. Today, the Arches records are mostly held at Lambeth Palace Library. The archive dates from after the Restoration in 1660. Records from the reign of Edward VI onwards were destroyed in the Great Fire of 1666. The archive includes over 2,250 process books (transcripts of proceedings in the lower courts sent up to Arches on appeal), over 150 volumes of act books, depositions, personal answers, sentences, muniment books and over 1,000 nineteenth-century files. It also includes various exhibits, court books, probate accounts, churchwardens’ accounts, rate books, letters and plans. The records have been stored in various places in their long history: from 1674 at Doctors’ Commons; after 1857 in a well in St Paul's Churchyard; and in 1865 at Morton's Tower at Lambeth Palace. During the Second World War, they were held at the Bodleian Library, Oxford, and in 1953 they were deposited in Lambeth Palace Library, where they remain.Footnote 39
The office of registrar was responsible for record-keeping in the Arches Court. It is an ancient office. After the Reformation, registrars were regulated by the 1603 Canons and, in a case of 1606, it was held that the registrar had to be a notary public.Footnote 40 By 1746, the court had two registrars.Footnote 41 Today, the Provincial Registrar of Canterbury serves as the registrar for the Arches Court.
THE PROCEDURE AND PRACTICE OF THE COURT
The mediaeval archiepiscopal statutes regulated aspects of process – indeed, an official of Archbishop Winchelsey complained early in the fourteenth century that diocesan officials were making too many errors in processing appeals to the Canterbury court.Footnote 42 Arches’ work was seen then in part as a spiritual exercise: ‘such was the devotion of those days in that Consistory’, said Godolphin in 1678, that to implore
the Divine assistance on their proceedings in Judgment, it was … Ordained, That Divine Service should be celebrated in Bow-Church immediately before the first, and after the last Cession of every Term, the Judge, Advocates, Proctors, and other Officers … to be present thereat.Footnote 43
This continued when the court moved to Doctors’ Commons: judge and advocates would ‘offer up prayers to the God of mercy, and wisdom and justice’.Footnote 44
The 1603 Canons also regulated aspects of process.Footnote 45 Slowness was often an issue. The case of Jackson v Mag was not untypical: the cause was in the Arches from 1666 to 1669, then introduced in the Court of Delegates, where sentence was not given until 1674.Footnote 46 Court process was also regulated by Act of Parliament, such as one of 1694 under which the fee for the document with an appeal from the Arches was 40 shillings.Footnote 47 Court practice also regulated, for example, the admission of advocates and proctors, dress, sittings, the dignity of the dean and the stages in appeals.
On the admittance of advocates, Floyer explained in 1746: ‘on Petition to the Archbishop, and his Fiat obtained, they are admitted by the Judge on Condition that they practise not for one whole Year after Admission (which is called the silent Year)’. The process of admission was as follows:
The two senior Advocates … with the Mace carried before them, conduct them up to the Court with three low Bows, and present them with a Latin Speech, and produce a Rescript from the Archbishop; and after taking the Oaths appointed … the Judge admits them, and assigns them Seats in Court, on his Right or Left Hand, which they always keep when they plead. The Stamps of … Admission are [£6] the other Fees are [£2 2s].
Proctors were admitted similarly and practised immediately.Footnote 48 A register of advocates and proctors was kept from 1512 to 1855.Footnote 49
Second, Floyer describes the ‘habits’ worn in Court:
The Judge and Advocates wear Scarlet Robes and Hoods lined with Taffety (if bred at Oxford) or white Miniver (if at Cambridge) and round black Velvet Caps. The Proctors wear black Prunella Gowns with Hoods lined with Fur in this Court only, in other Courts the Doctors, etc, wear only black Gowns.
Very colourful.Footnote 50
Third, from 1728 the court started sitting in Michaelmas Term on 25 October each year. Hilary Term began on 13 January, Easter Term on the Monday a fortnight after Easter Day; in Trinity Term ‘the custom is to open the court on the day following the Feast of the Holy Trinity’. When ‘in the seat of justice’, the Dean of Arches was sometimes addressed as Domine Judex, but more frequently as Domine Decane, and when spoken of as ‘Mr Dean’. Indeed, Oughton writes: ‘Great deference has been justly paid to … the [dean], both as of right, and by custom, not only among the members of our own … calling, but … among others unconnected with the profession.’ All the advocates on a stated day would attend on the dean in procession to court ‘according to their seniority’ and afterwards ‘to his own house’. All public documents had to distinguish him by ‘the titles of Venerable, and Excellent’, as the dean was on ‘an equal footing with the archbishop’.Footnote 51 At a hearing, senior advocates took their places opposite the judge, with the others on each side depending on seniority; the proctors observed ‘like Order’.Footnote 52
Fourth, from the Restoration, a suit in the Arches Court was initiated by: (1) an appeal at the instance of a party; or (2) by letters of request from the ordinary responsible for the inferior court, asking for the case to be heard directly by the Arches Court; or (3) by direct transmission from the Prerogative Court of Canterbury (in the case of wills); or (4) on the court's own initiative – that is, ex officio suits promoted on behalf of the judge, such as clergy discipline cases.
For example, in appeals, on receiving an application, an inhibition was directed to the lower court to stop any further litigation in the case. Then came the citation, requiring the parties to appear on a specified day to present or to answer through their proctors. All allegations and evidence were given in writing. A proctor produced the libel for the appellant in an instance case, or articles in an ex officio discipline case, setting out the facts/charges; the defendant answered by submitting allegations in defence. Subsequent allegations could be submitted by either party. The evidence of witnesses other than the two parties was recorded in the written depositions, in answer to interrogatories based on the libel.Footnote 53 The judge might require original documents or copies to be exhibited in court. The judge pronounced sentence (the judgment), assigning costs payable by the loser. If there was no definitive sentence, an interlocutory decree (temporary sentence) might be issued, or the case might be referred to the Court of Delegates (or, after 1833, the Privy Council), or stopped by writ of prohibition in the secular courts. More detailed norms applied to each stage.Footnote 54 In immorality cases, a penance or an excommunication might be imposed; in marriage cases, a divorce or annulment pronounced; and in testamentary cases, the payment of legacies ordered. However, the act books show that a large number of cases never reached sentence: for example, a party died, or the case was settled or abandoned.Footnote 55
Procedures changed, of course, after the nineteenth-century reforms. The deposited canons of 1874 required the dean to frame orders to regulate the practice and proceedings of all the courts within the province.Footnote 56 By 1895, Phillimore had a table of ‘procedure rules’ for the Arches (and others) on such items as ‘Security for costs, 1830’, ‘General procedure, 1867’, ‘Cases under the Clergy Discipline Act 1892’ and ‘Scales of fees and costs, 1893’.Footnote 57 Faculty rules issued in 1867 were updated in 1903 and lasted until 1936.Footnote 58 Later came the Ecclesiastical Jurisdiction (Faculty Appeals) Rules 1965 and 1998, the latter revoked by the Faculty Jurisdiction Rules 2015. An appeal from a consistory court is to the Arches, but if it concerns doctrine, ritual or ceremonial it is to the Court of Ecclesiastical Causes Reserved. Permission to appeal to the Arches may be given by the diocesan chancellor concerned or, if refused, by the dean. There are rules on conducting the appeal. For example, the dean may order the appeal to be determined on written representations if all the parties agree to it; the whole of the diocesan court file must be sent to the Arches registrar; and proceedings must be conducted in such manner as ‘rules’ may specify (the dean is on the Rule Committee). There are also rules on the orders that the court may make. Appeals from the Arches are to the Privy Council Judicial Committee if it consents. The Faculty Jurisdiction (Amendment) Rules 2019 (which came into force on 1 April 2020) remove the need for all parties to agree to an appeal before it is dealt with by written representations.
THE JURISPRUDENCE OF THE COURT
The Arches’ judges, advocates and proctors, and their successors gave much to ecclesiastical jurisprudence. First, their commentaries and opinions. Of the mediaeval deans, William Lyndwood (d 1446) is perhaps best known: his Provinciale of 1436 is a systematic account of the domestic English church law (and it is still cited today). After the Reformation, Richard Cosin (dean 1583–1597) robustly defended the Church courts and attacked the invasive use of the common law writ of prohibition in his Apology of 1591. The temporal courts frequently called on the doctors to assist them; Grendon v Dean and Chapter of Worcester (1575), in the Court of Common Pleas, was typical: ‘Note by six civilians, doctors of the Arches [all named] that such an appropriation … is good in law.’Footnote 59 But the advocates still invoked the learning of the continental civilians and canonists, including pre-Reformation jurists, as, for example, in Fowle v Maycote, c 1587: use was made of Lanfrancus de Oriano (1398–1488) and Jacobus Menochius (1532–1607).Footnote 60 Likewise, in the seventeenth century, we read in the Arches’ court record: ‘On this the doctors of the … Arches were consulted’, or ‘some doctors of the Arches were of [such and such an] opinion’, or X was ‘resolved by the doctors of the Court of Arches’.Footnote 61 Throughout this study I have used works by those associated with the Arches Court – from Philip Floyer, the proctor, and his 1746 book, to Dean Phillimore's monumental Ecclesiastical Law of 1873.
Second is the practice of writing reports, digests and summaries of Arches’ decisions.Footnote 62 A Bodleian manuscript has Arches Court decisions from 1597 to 1604. Sir George Lee produced judgments when he was dean in the 1750s, in manuscript until 1855, when Joseph Phillimore had them published. But the nineteenth century was the heyday for reporting Arches judgments: they were collected and published, for example, by Jesse Adams (1822–1826), John Haggard (1827–1833), Thomas Spinks (1853–1855) and W E Browning (1867–1875). These were all republished in The English Reports (1900–1932). There were also ‘digests of cases’ with case summaries, such as those by Edwin Maddy in 1835 and Alfred Waddilove in 1849; and Robert Phillimore collected the Arches’ judgments for 1867–1875. Today, the court's decisions are available on the website of the Ecclesiastical Law Association, and they are summarised in the Ecclesiastical Law Journal.
Third, the reasoning used by the dean has over the centuries been both positivist (relying solely on law) and moral (using ideas of justice). This is captured in two decisions of John Nicholl (dean 1809–34). In one, on whether the court had jurisdiction, he says: ‘if it clearly has no jurisdiction, the Court would not suffer the parties to proceed and to incur unnecessary expense’, ‘but, if the point be at all doubtful, the Court would be bound to proceed, for to refuse the exercise of a jurisdiction … is a “sort of denial of justice”’, and the court would have to find a ‘sound principle or authority clearly showing that [it] cannot and ought not to entertain the case’; in this case, about a legacy, he found no such authority and so accepted jurisdiction.Footnote 63 In another case, however, Nicholl refused jurisdiction as to accept it meant flying in the face of positive law: the 1603 Canons forbade depriving a cleric by anyone other than the bishop, but it was debated whether the dean could. Nicholl said that the court ‘would be extremely unwilling’ to deprive: the canon seemed ‘expressly to exclude it’ and he would not deprive on ‘the mere dicta of counsel, however respectable, in the absence of any, or, at most, upon the strength of one (blind) precedent’.Footnote 64
Fourth, there have been many landmark Arches’ decisions contributing to the development of the law of the Church of England. I give here some examples. In 1628 the court held that an ecclesiastical judge ‘cannot compel an executor to produce an inventory and render account before a will has been proved … where any controversy exists’.Footnote 65 In 1753 it required Church courts to apply common law rules to determine whether an ecclesiastical custom exists.Footnote 66 In 1758 it held that a parishioner has a right to be married in the parish church – a decision routinely cited today.Footnote 67 In 1809 it held that any lay person could administer baptism.Footnote 68 In 1824 it ruled that no parishioner may interrupt a service to call a vestry meeting after the churchwardens had failed to do so; in 1830 that the incumbent is custodian of the keys of the church; and in 1837 that a temporal conviction is not required before the deprivation of a cleric.Footnote 69 In Phillimore v Machon (1876) it recognised the loss of the Church courts’ jurisdiction over the laity and that ‘the punishment of the laity for the good of their souls by the ecclesiastical courts would not be in harmony with modern ideas’.Footnote 70
In 1908, the court held that parties ‘lawfully married’ under civil law cannot be denied Holy Communion on the basis that Church law and teaching forbade their marriage. In 1972 it held that refusing ‘to baptize a child is not a doctrinal offence [but one] concerned with pastoral work’: a minister must make ‘a clear and final intention not to baptize’ to be disciplined, and a conscientious objection would not provide a general defence.Footnote 71 And in 1992, the dean, Sir John Owen, said:
we must decide that fairness and justice demand that the verdicts against [the cleric in question] cannot stand. Of course, it is a matter of regret that the Church has been put to considerable wasted expense, but justice is more important than financial considerations.Footnote 72
Finally, central to the jurisprudence and reasoning of the Arches Court is the use of precedent – earlier cases. This has been the position for centuries. For instance, in 1756 the dean decided the matter on the basis of six earlier decisions of the Court of Delegates and the Arches itself; the following year, Lee used five common law cases and one from the Prerogative Court.Footnote 73 By the nineteenth century, the binding force of precedent was fully accepted in Church courts. A diocesan court was bound by its own previous decisions, but these did not bind other diocesan courts. An Arches’ decision bound the lower courts in the Province of Canterbury, and those of the Chancery Court bound lower courts in the Province of York. But an Arches’ decision did not bind the Chancery Court, and vice versa – though they had great persuasive value for each other (the dean and auditor were after all one and the same person after 1874). Decisions of the Court of Delegates and the Privy Council bound lower courts, including the Arches. Elements of the doctrine were recognised in the Ecclesiastical Jurisdiction Measure 1963.Footnote 74
In the case Re St Nicholas Sevenoaks (2005) Sheila Cameron, then dean, said:
So far as decisions of the Arches Court and the Chancery Court of York are concerned, we … approve the approach of the chancellor … of Newcastle in [2002 who] said … that having regard to the fact that all chancellors are judges of each court and the offices of Dean … and Auditor are by statute held by the same person it is realistic to treat ‘the Arches Court … and the Chancery Court … as being, for the purposes of the doctrine of precedent, two divisions of a single court’. … [Accordingly,] consistory courts in each Province should have regard to decisions of the appellate court, whether or not given in their Province, and a later decision should prevail if it differs from that given in an earlier decision irrespective of the Province concerned.Footnote 75
A new rule appears in the 2018 Measure: a decision of the Arches or of the Chancery Court is to be treated by the other court, and by the lower ecclesiastical courts in the province of the other court, as if it were a decision which the other court had itself taken. Lower ecclesiastical courts are the vicar-general's court of the province (including under the Clergy Discipline Measure 2003), the consistory court for a diocese in the province or a disciplinary tribunal in the province. This new rule applies to a decision of the Arches or the Chancery Court made before the commencement of the rule, as well as to decisions made after its commencement.Footnote 76
On 9 February 2018 at General Synod, the Dean of Arches, the Right Worshipful Charles George QC, welcomed this move. He explained: ‘Where there is a previous decision of the same appeal court, the appeal court will normally follow it, thus providing a measure of certainty to the law’ and ‘the lower courts will also normally follow the previous decisions of the Province's own appeal court or risk being overturned on appeal’. Also ‘In the very rare cases where there is a conflict between previous decisions of the two appeal courts, it has generally been assumed that the most recent decision by whichever appeal court will be followed’ (as stated in the Sevenoaks case cited above). However, in 2016, ‘doubt was cast as to the correctness of this approach’ – the only relevant precedent in each province was that of its own appeal court.Footnote 77 So, the 2018 Measure simply affirms the Sevenoaks approach. Moreover,
The benefit of the revised wording [in the 2018 Measure] is that it omits any express reference to decisions being binding so that the effect of previous decisions, whether they be persuasive, highly persuasive or binding, together with the approach where there are conflicting decisions of appeal courts, can be worked out in case law, but on a basis set by this Measure that it matters not whether the previous decision is a case decided in the Court of Arches or one decided in the Chancery Court of York. Normally, it would be the more recent decision that would be followed, but there may be cases where this would not be appropriate, for example if there were material factors considered in the earlier decision but not taken into account in the later decision.Footnote 78
In 2019, the Consistory Court of Leeds Diocese pointed out that, as a result, in exhumation cases,
In dioceses of the Northern Province (of which Leeds is one) it is no longer necessary to consider the test propounded by the Chancery Court of York in Re Christ Church, Alsager [1999] … to the extent that such test was revisited and re-framed by the subsequent decision of the Court of Arches in Re Blagdon Cemetery [2002].
In Blagdon the Arches favoured the straightforward principle that a faculty for exhumation will only be exceptionally granted. The petitioner must show special circumstances which justify the making of an exception from the norm that Christian burial is final. Chancellor Hill concluded: ‘The somewhat sterile question of whether the Alsager and Blagdon tests might lead to different outcomes is now entirely academic.’Footnote 79 In his Ecclesiastical Law, Hill recognises that the change reflects ‘the pragmatic approach which has generally been adopted by most ecclesiastical judges when applying the ecclesiastical common law in the light of the [available] judgments’; the change in the composition of the Arches and Chancery Courts into a single appellate court of appeal; and ‘to a lesser extent, the benign adoption of the reasoning of one consistory court by another’.Footnote 80
CONCLUSION
Needless to say, this study is an incomplete picture of the Court of Arches. Sir George Lee, in the 1750s, may well have been correct that its jurisdiction was ‘entirely settled’ but that can be said at any moment in the court's history: jurisdiction is settled by the creation of a new law, for the life of that law. It is by a long perspective we see that, across the centuries, the jurisdiction and other aspects of the life of the court have been anything but ‘entirely settled’.
Its story is one of evolution, driven by principle, politics and pragmatism. On the one hand, its status has remained settled: it began life as a provincial appellate court – it still is. It always had jurisdiction over faculties and clergy discipline – it still does. Its judge was always appointed by the archbishop. It has always kept records. Its processes were for centuries subject to the secular writ of prohibition – and today it is subject to supervision by the High Court. And its jurisprudence was always respected but became the basis of binding precedent.
On the other hand, it has had an unsettled history. Before the Reformation it enforced Roman canon law, but after that time it enforced the ecclesiastical law of the realm. Its jurisdiction originally was wide but over the centuries it contracted, especially in the nineteenth century – though it was not until 1963 that it lost its original jurisdiction. Appeal from the Arches was originally to Rome, then to the Court of Delegates, then to the Privy Council. Its judge was originally the ‘official’ and the ‘dean’ his deputy; the office of dean disappeared but the title ‘dean’ continues today. One person sat as judge in the Arches, and another in the York Chancery; after 1874, one person held both offices. Arches procedure was always complex, and today it is on a statutory footing. Arches’ decisions have throughout the court's history been consulted and respected, but after the eighteenth century they were reported systematically and became binding precedents. And a decision of the Arches and Chancery Court is today to be followed as if it were a decision of the other court. The Arches is a micro-world in which so much English Church law has grown.
There is no better way to end than with Oughton's words in 1728, 20 years before Lee was Dean: ‘Long may this useful, this illustrious, this splendid court, the Arches Court of his Grace of Canterbury, continue to shine effulgent, and may its glory extend far and wide to distant ages.’Footnote 81
