(c) Church Lands.—If undoubtedly held in frankalmoign or “free alms,” by a “spiritual” tenure only, the claim of jurisdiction for the ecclesiastical forum seems to have been at first conceded. But the Constitutions of Clarendon (c. 9) reserved the preliminary question, of “frankalmoign” or not, for a jury in the king’s court. Then, if the tenure were found free alms, the plea was to be heard in the court Christian. From the 13th century, however, inclusive, the king’s courts insisted on their exclusive jurisdiction in regard to all realty, temporal or “spiritual” (Pollock and Maitland, op. cit. i. 106).
(d) Title to present to and possession of benefices.—As to the title to present to benefices, the courts Christian at one time had concurrent jurisdiction with the temporal courts. “Advowsons” were, however, looked upon as a species of “real” property in England, and therefore the king’s court early claimed exclusive jurisdiction in disputes where the title to present was involved. The Constitutions of Clarendon provided that these causes should be heard only in the king’s court (c. 1). This rule was applied even where both litigants were “spiritual.” In the 13th century abbots sue each other in the royal court for advowsons (Selden Soc. Select Civil Pleas, i. pl. 245). In 1231, in such a suit, the bishop of London accepts wager of battle (Pollock and Maitland, op. cit. i. 105). In cases, however, where the title to present was not in question, but the fitness of the clerk presented, or, in cases of election to benefices, the validity of the election, there was jurisdiction in the courts Christian.
(e) The recovery of tithes and church dues, including in England church rates levied to repair or improve churches and churchyards.
(f) Questions concerning fabrics, ornaments, ritual and ceremonial of churches.
(g) Administration of pious gifts and revenues given to prelates or convents.—Their right application could be effectively enforced only in the courts Christian; until the rise in England of the equitable jurisdiction of the court of chancery and the development of the doctrine of “uses” at the end of the middle ages.
(h) Enforcement of contractual promises made by oath or pledge of faith.—The breaking of such a promissory oath was called “perjury” (as in classical Latin and in Shakespeare), contrary to modern usage which confines the word to false evidence before a court of justice. In regard to the execution of these promises, the jurisdiction of the ecclesiastical courts was possibly traversed by c. 15 of the Constitutions of Clarendon; but allowed by the statute 13 Edw. I. st. 4. As just intimated, besides the enforcement of the promise, the “perjury” was treated as an ecclesiastical crime.
The criminal jurisdiction of courts Christian over laymen included, besides these “perjuries,” (a) all sexual offences not punishable on indictment; (b) Defamation of character (the king’s courts came in time to limit this to such defamation as could not be made the subject of a temporal action); (c) Offences by laymen against clerks (i.e. against all “tonsured” persons, supra); (d) Offences in regard to holy places—“brawling” and such like; (e) Heresy, schism, apostasy, witchcraft.
In regard to “clerks,” there was (1) all the criminal jurisdiction which existed over laymen, and (2) criminal jurisdiction in regard to professional misconduct. Concerning “felonious” clerks the great questions discussed were whether the courts Christian had exclusive jurisdiction or the king’s court, or whether there was a concurrent jurisdiction. The subject was dealt with in the Constitutions of Clarendon, formally revoked after the murder of St Thomas of Canterbury. In the 13th century it was recognized that a “clerk” for felony was subject only to ecclesiastical trial and punishment; punishment which might involve lifelong imprisonment. For “misdemeanours,” as yet unimportant, he had no exemption from secular jurisdiction (Pollock and Maitland, op. cit. ch. iv.). At some indeterminate later period, the “clerk” was tried for felony by a jury in the king’s court and then “pleaded his clergy,” after conviction there, and was remitted to the ordinary for ecclesiastical punishment. “Clerks” for the purpose of “benefit of clergy” included not only persons in minor orders, but all “religious” persons, i.e. monks, friars, nuns, &c. Later the custom arose of taking “clerk” to include any “literate,” even if not in orders or “religious” (cf. Stephen, Hist. Crim. Law, i. 461). The statute 4 Hen. VII. c. 13 took away benefit of clergy, if claimed a second time, from persons not “within orders,” in certain bad cases. 4 Hen. VIII. c. 2 (a temporary act) took away “clergy,” in certain heinous crimes, from all persons not in “holy” orders. This statute was partly renewed by 22 Hen. VIII. c. 13. Other changes were introduced by 23 Hen. VIII. c. 1 and later acts. In time, “benefit of clergy” became entirely diverted from its original objects.
In France, till 1329, there seems to have been no clear line of demarcation between secular and ecclesiastical jurisdictions. Beaumanoir (Coutume de Baulvoisis, ch. xi., cited Gaudry, op. cit. i. 22) had laid down the principle that spiritual justice should meddle only with spiritual things. In the year named the secular courts complained to the king, Philip of Valois, of the encroachments of the courts Christian. The “cause” was solemnly argued before that monarch, who decided to leave things as they were (Migne, Dict. du droit canon., s.v. “Officialités”). In 1371 Charles V. forbade spiritual courts to take cognizance of “real” and “possessory” actions even in regard to clerks (Migne, loc. cit.; cf. Gaudry, ubi sup.). From this period the parlements began the procedure which, after the Pragmatic Sanction of Charles VII., in 1438 took regular shape as the appel comme d’ abus (supra; Migne, loc. cit.). Testamentary causes at first were subject to the concurrent jurisdiction of the spiritual and secular courts. After the 14th century, the latter had exclusive jurisdiction (Van Espen, op. cit. lib. iii. tit. ii. cc. 2, 15, 16). In regard to marriage the secular jurists distinguished between the civil contract and the sacrament, for purposes of separating the jurisdiction (Dict. eccl., Paris, 1765, s.v. “Mariage”). The voluntary jurisdiction as regards dispensations was kept for the Church. The contentious jurisdiction of the courts Christian was confined to promises of marriage, nullity of marriage caused by “diriment” impediments only, validity or invalidity of the sacrament, divorce a thoro (ibid.). Questions in regard to the property in a benefice were for the courts Christian; in regard to its possession, for the king’s courts. But if a “possessory” action had been brought in the latter, a subsequent suit in the courts spiritual for the property was deemed “abusive” and restrained (ib., s.v. “Pétitoire”) Breach of faith or of promise confirmed by oath was matter for the court Christian (Fournier, pp. 95, 99, 109, 125). This branch of jurisdiction was larger and more freely used than in England (cf. Pollock and Maitland, op. cit., as to Normandy). The only other remaining civil jurisdiction of the ecclesiastical courts was in personal actions where clerks were defendants (Migne, op. cit., s.v. “Officialités,” Fournier, pp. 65-125); or, after the 14th century, where both parties were clerks. In regard to crimes delicts (délits) were divided into classes for purposes of jurisdiction. Clerks were punishable only in the court Christian, except in cases of grave crimes such as murder, mutilation (Fournier, p. 72), and cases called “royal cases” (vide infra). Laymen were punishable in the court Christian for the délits following: injury to sacred or religious places, sacrilege, heresy (except where it was a “royal case”), sorcery, magic, blasphemy (also punishable in the secular court), adultery, simony, usury and infractions of the truce of God (Fournier, pp. 90-93). What were called “privileged delicts” were judged in the case of the clergy conjointly by the spiritual judge and the king’s judge. Bishops had no exemption (Dict. ecc., s.v. “Délits,” “Cas privilégié,” “Causes majeures”). “Royal cases” included such crimes as touched the prince, as all forms of treason; or the dignity of his officers; or the public safety. In this class were also included such heresies as troubled the state, as by forbidden assemblies, or by teaching prohibited doctrine. Among these heresies were reckoned idolatry, atheism, Protestantism, relapse (ib. et “Cas royaux,” “Hérésie”). These were of exclusive royal jurisdiction as against both spiritual courts and the courts of feudal lords. A similar claim was made by Pombal for Portugal (vide infra).
The parlements, in order to have a ready means of enforcing all these restrictions by appel comme d’abus, compelled the bishops to appoint officials, Frenchmen, graduates, and (as it seems) “seculars” (Dict. eccl., Paris, 1765, s.v. “Official”). This last qualification was disputed (see Fevret, Traité de l’abus).