The position of a disestablished or an unestablished Church is comparatively modern, and has given rise to new jural conceptions. These Churches are collegia licita and come within the liberty of association so freely conceded in Ecclesiastical jurisdiction in non-established churches. modern times. The relations of their bishops, priests or other ministers and lay office-bearers inter se and to their lay folk depend upon contract; and these contracts will be enforced by the ordinary courts of law. A consensual ecclesiastical jurisdiction is thus created, which has to this extent temporal sanction. In foro conscientiae spiritual censures canonically imposed are as binding and ecclesiastical jurisdiction is as powerful as ever.
Into the British-settled colonies no bishops were sent till 1787; and consequently there were no regular courts Christian. The bishop of London was treated as the diocesan bishop of the colonists in North America; and in order to provide for testamentary and matrimonial jurisdiction it was usual in the letters patent appointing the governor of a colony to name him ordinary. In New York state there is still a court called the surrogates court, surrogate being the regular name for a deputy ecclesiastical judge. In Lower Canada, by treaty, the Roman Catholic Church remained established.
Throughout the United States, whatever may have been the position in some of them before their independence, the Church has now no position recognized by the State, but is just a body of believers whose relations are governed by contract and with whom ecclesiastical jurisdiction is consensual.
The position is the same now through all the British colonies (except, as already mentioned, Lower Canada or Quebec). From 1787 onwards, colonial bishops and metropolitans were appointed by letters patent which purported to give them jurisdiction for disciplinary purposes. But a series of cases, of which the most remarkable was that Re the Bishop of Natal (3 Moore P.C. N.S. A.D. 1864), decided that in colonies possessing self-governing legislatures such letters patent were of no value; and soon after the crown ceased to issue them, even for crown colonies.
In India the metropolitan of Calcutta and the bishops of Madras and Bombay have some very limited jurisdiction which is conferred by letters patent under the authority of the statutes 53 Geo. III. c. 155 and 3 & 4 Will. IV. c. 85. But the other Indian bishops have no position recognized by the State and no jurisdiction, except consensual.
The Church had the same jurisdiction in Scotland, and exercised it through similar courts to those which she had in England and France, till about 1570. As late as 1566 Archbishop Hamilton of Glasgow, upon his appointment, Ecclesiastical jurisdiction in Scotland. had restitution of his jurisdiction in the probate of testaments and other matters (Keith, History of the Scottish Bishops, Edinburgh, 1824, p. 38). There was an interval of uncertainty, with at any rate titular bishops, till 1592. Then parliament enacted a new system of Church courts which, though to some extent in its turn superseded by the revival of episcopacy under James VI., was revived or ratified by the act of 1690, c. 7, and stands to this day. It is a Presbyterian system, and the Scottish Episcopal Church is a disestablished and voluntary body since 1690.
The Presbyterian courts thus created are arranged in ascending order:—
(a) Kirk Session consists of the minister of the parish and the “ruling elders” (who are elected by the session). It has cognizance of scandalous offences by laymen and punishes them by deprivation of religious privileges. It does not judge ministers (Brodie-Innes, Comparative Principles of the Laws of England and Scotland, 1903, p. 144).
(b) The Presbytery has jurisdiction, partly appellate and partly original, over a number of parishes. There are now eighty-four presbyteries. These courts consist of every parochial minister or professor of divinity of any university within the limits, and of an elder commissioned from every kirk session. A minister is elected to preside as moderator. These courts judge ministers in first instance for scandalous conduct. As civil courts they judge in first instance all questions connected with glebes and the erection and repair of churches and manses. They regulate matters concerning public worship and ordinances, and have appellate jurisdiction from the kirk session.
(c) The Provincial Synod consists of a union of three or more presbyteries with the same members. There are now sixteen. They meet twice a year to hear appeals from presbyteries. No appeal can go direct to the General Assembly, omisso medio, unless the presbytery have so expressly directed, or unless there be no meeting of synod after the decision of the presbytery before the meeting of General Assembly.