3. Punishments.—Ecclesiastical sanctions were divided into punishments (poenae), either purely temporal in character or else of a mixed spiritual and temporal character, and censures (censurae), purely spiritual and remedial (see Van Espen, pars iii. tit. xl. cc. 1, 3; Phillimore, Ecclesiastical Law, p. 1064). In the book last cited censurae and poenae are classed together as “censures” (which is the modern use).
Poenae.—(a) Fines sprang from the older custom of directing alms by way of penance in the internal forum (Van Espen, ubi sup. c. 1, 5-10). They were to be applied to pious uses. (b) Reclusion in a monastery continued from former period, and might be either temporary or perpetual (loc. cit. 17-19). (c) Imprisonment, in the bishop’s prison, might be in chains, or on bread and water, and temporary or perpetual. In its severer forms it was only inflicted for more atrocious crimes which the secular law would have punished with death (loc. cit. 21-27). The act 23 Henry VIII. c. 11 made special provision for convicted clerks who broke out of the prisons of the ordinary. (d) Fustigation, as in former period, was hardly an ecclesiastical punishment. If given, it was to be of a paternal character (loc. cit. 39-45). Punishments of a mixed nature were: (e) Suspension either from office alone or from office and benefice; (f) Deprivation of benefice; (g) Deposition or Degradation (a more solemn and ceremonial form) from the ministry; (h) Irregularity—not always a punishment—a state of incapacity to be ordained, or, being ordained, to execute the ministry; this might result from some defect of mind and body, but was also incurred by some grave offences.
Censures were as follows: (i) Suspension from attending divine offices or ab ingressu ecclesiae, more appropriate for a layman. A clerk in like case might be suspended from office. (j) Interdict was another form of partial or total suspension from the benefit of the rites and sacraments of the Church. An interdict might be personal or local (see [Interdict]). (k) Excommunication was either greater or less. The greater separated entirely from the Church. It might be pronounced under anathema. The less deprived of participation in the sacraments, and made a clerk incapable of taking a benefice.
On the European continent the courts Christian often carried out their decrees by their own apparitors who could levy pecuniary penalties on a defendant’s goods (Van Espen, pars iii. tit. ix. c. 4). They could arrest and imprison. In England, except in the peculiar case of imprisonment pending trial for heresy, or in the case of a clerk convicted of crime, these things could not be. The sentence of the court Christian had in all other cases to be enforced by the secular arm. Early in Henry II.’s time it had become the custom of England for the court Christian to “signify” its sentence of excommunication to the king and to demand from him a writ of significavit to the sheriff, to imprison the person excommunicated. The writ apparently issued for no court inferior to the bishop’s, unless upon the bishop’s request. In some sense the king’s writ of significavit was discretionary; but its issue could be enforced by excommunication or interdict.
In the cases of heresy, apostasy and sorcery, the spiritual courts sought the aid of the secular jurisdiction to superadd the punishment of death. Incorrigible offenders on these matters were “left” to the secular power, to be corrected with due “animadversion.” This provision of the fourth Lateran Council in 1215 was always interpreted to mean death (see Van Espen, Observ. in Conc. Lat. IV. Canones, and the decree in the Sext. ut inquisitionis negotium; and, as to English law and practice, Maitland, op. cit., Essay vi., and pp. 161, 176; 2 Hen. IV. c. 15; Fitzherbert, Natura brevium, 269; 2 Hen. V. st. 1, c. 7). The “capital” punishment was generally (always in England) by burning. Burning was an English punishment for some secular offences.
The Concordat with Francis I. by which the pope gave up the right of hearing appeals from France was not many years before the legislation of Henry VIII. in England. Both monarchs proceeded on the same lines; but Francis I. got the pope’s consent: Henry VIII. acted in invitum, and in time went rather further.
The Statute of Appeals (24 Hen. VIII. c. 12) takes away appeals to Rome in causes testamentary and matrimonial and in regard to right of tithes, oblations and obventions. A final appeal is given to the archbishop of the particular Ecclesiastical jurisdiction in England. province; but in causes touching the king a final appeal is given to the Upper House of Convocation of the province. The statute is aimed at appeals; but the words used in it concerning “citations and all other processes” are wide enough to take away also the “original” jurisdiction of the pope. No appeal was yet given to the crown. Canterbury, York, Armagh, Dublin, Cashel and Tuam are put in the place of Rome. The English and Irish provinces are treated as self-contained. All ends there.
The “Act of Submission of the Clergy” (25 Hen. VIII. c. 19) took away all appeals to Rome and gave a further appeal, “for lack of justice,” from the several courts of the archbishops to the king in chancery. Thence a commission was to issue to persons named therein to determine the appeal definitely. This was copied from the then existent practice in admiralty appeals and was the origin of the so-called court of delegates. It is a moot question whether this statute took away the appeal to the Upper Houses of the various convocations in causes wherein the king was concerned (see Gorham v. Bishop of Exeter, 15 Q.B. 52; Ex parte Bishop of Exeter, 10 C.B. 102; Re Gorham v. Bishop of Exeter, 5 Exch. 630). 37 Hen. VIII. c. 17 provided that married laymen might be judges of the courts Christian if they were doctors of civil law, created in any university. This qualification even was considered unnecessary in Charles I.’s time (Cro. Car. 258). Canon 127 of 1603 provided that the judges must be learned in the civil and ecclesiastical laws and at least masters of arts or bachelors of laws. Canon Law as a study had been practically prohibited at the universities since 1536 (Merriman, Thomas Cromwell, i. 142-143; Cal. State Papers, vol. ix. p. xxix. 117; Owen, Institutes of Canon Law, viii.). The substitution of “civilians,” rather than common lawyers, for canonists (civilians, hitherto, not an important body in England) had important consequences (see Maitland, op. cit. 92 et seq.).
Henry VIII. had exercised his jurisdiction as Supreme Head through a vicar-general. Edward VI. exercised original jurisdiction in spiritual causes by delegated commissions (see Archdeacon Hale, Precedents in Criminal Cases, p. xlviii.). Unless the king was to be regarded as an ecclesiastical person, they were not properly ecclesiastical courts; although spiritual persons might sit in them, for they sat only as royal commissioners. The same point has been taken by large bodies of clergy and laity in regard to the court of final appeal created by 25 Hen. VIII. c. 19 and its present successor the judicial committee of Privy Council (infra: Rep. Com. Ecc. Discipline, pp. 9, 94 et seq.). At any rate the “original” jurisdiction claimed for the monarch personally and his delegates, under Henry VIII. and Edward VI., has not permanently remained. In theory, Hooker’s contentions have been conceded that “kings cannot in their own proper persons decide questions about matters of faith and Christian religion” and that “they have not ordinary spiritual power” (Ecc. Pol. vii. 8, 1, 6; cf. XXXIX. Articles, Art. 37).
Under Henry VIII. a system began of making certain crimes, which previously had been only of spiritual cognizance, felonies (25 Hen. VIII. c. 6), excluding thereby spiritual jurisdiction (Stephen, Hist. Crim. Law, ii. 429). Bigamy (in its modern sense) was thus made felony (1 Jac. I. c. 11). In this reign and the next, temporal courts were sometimes given jurisdiction over purely spiritual offences. A trace of this remains in 1 Edw. VI. c. 1 (still on the statute book; Stephen, Hist. Crim. Law, ii. 439). Other traces occur in the Acts of Uniformity, which make offences of depraving the Book of Common Prayer triable at Assizes (between 23 Eliz. c. 1 and 7 & 8 Vict. c. 102—also at Sessions) as well as in the courts Christian.