(k) In England the Constitutions of Clarendon added a provision for appeal to the king, “and if the archbishop shall have failed in doing justice recourse is to be had in the last resort (postremo) to our lord the king, that by his writ the controversy may be ended in the court of the archbishop; because there must be no further process without the assent of our lord the king.” The last words were an attempt to limit further appeal to Rome. It will be observed that the king does not hear the cause or adjudicate upon it. He merely corrects slackness or lack of doing justice (Si archiepiscopus defecerit in justitia exhibenda) and by his writ (precepto) directs the controversy to be determined in the metropolitan’s court. As bishop Stubbs says (Report of Eccl. Comm. vol. i. Hist. App. i.): “The appeal to the king is merely a provision for a rehearing before the archbishop, such failure to do justice being not so much applicable to an unfair decision as to the delays or refusal to proceed common at that time” (cf. Joyce, The Sword and the Keys, 2nd ed. pp. 19-20). The recursus ad principem, in some form or other of appeal or application to the sovereign or his lay judges, was at the end of the middle ages well known over western Europe. This recourse in England sometimes took the form of the appeal to the king given by the Constitutions of Clarendon, just mentioned, and later by the acts of Henry VIII.; sometimes that of suing for writs of prohibition or mandamus, which were granted by the king’s judges, either to restrain excess of jurisdiction, or to compel the spiritual judge to exercise jurisdiction in cases where it seemed to the temporal court that he was failing in his duty. The appellatio tanquam ab abusu (appel comme d’abus) in France was an application of a like nature. Such an appeal lay even in cases where there was a refusal to exercise voluntary jurisdiction (de Maillane, Dictionnaire du droit canonique, tit. “Abus,” cf. tit. “Appel”). This writer traces their origin to the 14th century; but the procedure does not seem to have become regularized or common till the reigns of Louis XII. or Francis I. (cf. Dict. eccl., Paris, 1765, titt. “Abus” and “Appel comme d’abus”). On the recursus ad principem and the practice of “cassation” in Belgium, Germany and Spain, cf. Van Espen’s treatise under this title (Works, vol. iv.) and Jus eccles. univ. pars iii. tit. x. c. 4. Louis XIV. forbad the parlements to give judgment themselves in causes upon an appel comme d’abus. They had to declare the proceedings null and abusive and command the court Christian to render right judgment (Edict of 1695, arts. 34, 36, cited in Gaudry, Traité de la législation des cultes, Paris, 1854, tom. i. pp. 368, 369).
In Catalonia “Pragmatics,” letters from the prince, issued to restrain jurisdiction assumed by ecclesiastical judges contrary to the customs of the principality. Thus in 1368 Peter III. evoked to the royal court a prosecution for abduction pending before the archbishop of Tarragona, declaring that the archbishop and the official were incompetent to judge noblemen. See this and other instances collected in Usages y demas derechos de Cataluña, by Vives y Cebriá (Barcelona, 1835), tom. iv. p. 137 et seq.
(l) Lastly there was the appeal to the patriarchs, i.e. in the West to Rome. The distinguishing feature of this appeal was that the rule of the other appeals did not apply to it. In the regular course of those appeals an appellant could not leap the intermediate stages; but he could at any stage go to this final appeal, omisso medio, as it was technically called (see de appell. c. Dilect. iii. for general rule, and c. 3 de appell. in 6 for different rule in case of the pope, and authorities cited in Van Espen, pars iii, tit. x. c. 2, 5). Van Espen says: “The whole right of appeal to the Roman pontiff omisso medio had undoubtedly its origin in this principle, that the Roman pontiff is ordinary of ordinaries, or, in other words, has immediate episcopal authority in all particular churches, and this principle had its own beginning from the False Decretals.”
Appeals to Rome lay from interlocutory as well as final judgments. Causes could even be evoked to Rome before any judgment and there heard in first instance (Van Espen, pars iii. tit. x. c. 1, 8).
There was an alleged original jurisdiction of the pope, which he exercised sometimes by permanent legates, whom Gregory VII. and his successors established in the chief countries of Europe, and to whom were committed the legislative executive and judicial powers of the spiritual “prince” in the districts assigned to them. These Clement IV. likened to “pro-consuls” and declared to have “ordinary” jurisdiction; because they had jurisdiction over every kind of cause, without any special delegation, in a certain defined area or province (c. ii. de Officio Legati in 6). They were expressed to have not merely appellate but original jurisdiction over causes (iii. c. i. de Officio Legati). The occupants of certain sees by a kind of prescription became legates without special appointment, legati nati, as in the case of Canterbury. In the 13th century Archbishop Peckham, says Maitland (p. 117), as archbishop “asserted for himself and his official (1) a general right to entertain in the first instance complaints made against his suffragans’ subjects, and (2) a general right to hear appeals omisso medio.” It was, for the time, determined that the archbishop might himself, in virtue of his legatine authority, entertain complaints from other dioceses in first instance, but that this legatine jurisdiction was not included in the ordinary jurisdiction of his official principal, even if the archbishop had so willed it in his commission. In fact, however, the official did before the end of the later medieval period get the same power as the archbishop (Maitland, pp. 118-120; cf. Lyndwood, lib. v. tit. 1), till it was taken from him by the Bill of Citations.
After legates came special delegates appointed by the pope to hear a particular cause. It was the general practice to appoint two or three to sit together (Van Espen, pars iii. tit. v. c. 2, 37). These might sub-delegate the whole cause or any part of it as they pleased, ibid. 9-18. Dr Maitland (essay on “The Universal Ordinary”) thinks, but without very much foundation, that great numbers especially of the more important causes were tried before these delegates; although the records have largely perished, since they were the records of courts which were dissolved as soon as their single cause had been decided. These courts were convenient, since it was the custom to appoint delegates resident in the neighbourhood, and the power of sub-delegation, general or limited, simplified questions of distance. In Belgium causes appealed to Rome had to be committed to local delegates (Van Espen, pars iii. tit. v. c. 3, tit. x. c. 2).
There could be an appeal from these delegates to the pope and from the pope himself to the pope “better informed” (Van Espen, pars iii. tit. x. c. 2, 12, 13). So personal had the system of jurisdiction become that even the trials of bishops ceased to be necessarily conciliar. Generally they were reserved to the pope (Van Espen, pars iii. tit. iii. c. 5, 17-19); but in England the archbishop, either in synod, or with some of his comprovincial bishops concurring, tried and deposed bishops (see case of Bishop Peacock and the other cases cited in Read v. Bishop of Lincoln, 14 P.D. 148, and Phillimore, Eccl. Law, pp. 66 et seq.).
(m) The jurisdiction of a bishop sede vacante passed, by general law, to the dean and chapter; but in England the metropolitans became “guardians” of the spiritualities and exercised original jurisdiction through the vacant diocese (Phillimore, pp. 62-63), except in the case of Durham, and with a peculiar arrangement as to Lincoln.
If the metropolitan see were vacant the jurisdiction was exercised by the dean and chapter through an official (Rothery, Return of Cases before Delegates, Nos. 4, 5). As to France see Fournier, p. 294.
(n) Officials, even of bishops and metropolitans, need not be in holy orders, though Bishop Stubbs in his paper in the Report of the Commission on Ecclesiastical Courts seems to say so. They had to be clerics, that is, to have received the tonsure. Even papal delegates might be simple clerks (Van Espen, pars iii. tit. v. c. 2, 20).