HISTORY AND JURISDICTION
The Court of Arches (named for the church of S. Maria de Arcubus [St Mary-le-Bow] where the court sat before the church was destroyed in the Fire of London in 1666) is the court of appeal for the Province of Canterbury. A precise date for the establishment of the court cannot be established, but by the time of Archbishop Pecham (1279) it was well established as a court of appeal for the province from diocesan and lower courts. (See I.J.Churchill "Canterbury Administration" (London: SPCK 1933) vol. 1 p.424 onwards for a discussion of the origins and early history of the court.)
Cases might come before the Court by way of a direct appeal from a definitive sentence, or by devolution through defect of justice either suffered or feared in a lower court, or by appeal for protection of the court of Canterbury. The majority of cases came on appeal from lower courts: consistory, commissary, archidiaconal and peculiar courts.
Until 1832 appeal from the Court of Arches lay with the High Court of Delegates, and thereafter with the Judicial Committee of the Privy Council.
Following the Court of Probate Act and the Matrimonial Causes Act of 1857, the establishment of the Court of Divorce, Probate and Admiralty in 1858 removed at once two of the most important fields of ecclesiastical jurisdiction, matrimonial and testamentary cases.
Since the reorganisation of ecclesiastical courts by the Ecclesiastical Jurisdiction Measure 1963, the Court of Arches has no original jurisdiction but hears appeals from the diocesan consistory courts within the province of Canterbury in cases concerning matters such as church buildings or clergy discipline not involving doctrine, ritual or ceremonial.
PROCEDURE
A suit in the Court of Arches was initiated by an appeal from the lower court (Arches C) or by letters of request from the Ordinary reponsponsible for the inferior court, asking for the case to be heard directly by the Court of Arches (Arches G 5), or by direct transmission from the Prerogative Court of Canterbury. In addition the Court could initiate suits of its own, for instance to correct malpractice on the part of the clergy. On these 'ex officio' cases, promoted on behalf of the judge, see below, 'Types of Cases Heard'.
All steps in every case were recorded by the officials of the court, in more or less summary form, in the Act Books (Arches A), the Acts of Court (Arches Aa), or the Assignation Books (Arches Aaa).
On receipt of an appeal an inhibition was directed to the lower court (Arches Bb) to stop any further litigation in the case. In many cases the inhibition would be accompanied by a monition to transfer the process, that is a full copy of all acts and documents relating to the case hitherto (Arches D). In some cases the process was used as the basis for the decision in the Court of Arches, with no further evidence consulted. The parties in the case were then cited to appear on a specified day (Arches Bb) to present or to answer charges through their proctors.
All allegations and evidence were given in writing as no verbal evidence was accepted. A proctor would produce the libel of appeal on behalf of the appellant in an instance case or articles of appeal in a case promoted or examined on behalf of the judge (Arches E, B, Bbb). The libels or articles enumerated all the facts and charges against the defendant who answered by submitted allegations in defence of his case (Arches E, Bbb). Subsequent allegations could be submitted by either party. In 'instance' cases the plaintiff might be required by the judge to answer articles (Arches E) based on the appellant's libel: these are the 'personal answers' recorded in section Ee. The evidence of witnesses other than the two parties is recorded in the written depositions (Arches Eee), in answer to the interrogatories (Arches E) again based on the clauses of the libel. Whenever the parties or witnesses were unable to give their evidence to the proctors in London, commissions 'in partibus' were issued to local clergy to take the answers to the articles or interrogatories and return the answers and depositions to the court (Arches Bbb). For further proof the judge might require original documents or copies of documents to be exhibited before the court (Arches F, Ff, G).
When sufficient evidence has been procured the judge would pronounce sentence (Arches B), assigning costs to be paid by the loser (Arches J). If the case were not finally decided an interlocutory decree, that is a temporary sentence, might be issued, or the case might be referred to the Court of Delegates or the Privy Council, or it might be stopped by a royal inhibition (Arches G 7-15).
In testamentary cases the judge decided the payment of legacies or fines, in matrimonial cases he pronounced the divorce or annulment, but in the cases involving defamation or morals a penance or excommunication might be imposed. Excommunication was also used to force contumacious parties or witnesses to appear before the court. Up to the eighteenth century writs 'de excommunicato capiendo' were issued against those not cowed by excommunication into obeying the court. The Act Books (Arches A) show that a large proportion of the cases never reached sentence, that is the appeal was rejected, or one of the parties had died, or the case was settled out of court, or that it had just been abandoned.
The court kept four terms, the Michaelmas term, the first term of the legal year, beginning at the end of October, the Hilary term, beginning after the feast of St. Wolstan, that is the 19th January, the Easter term, beginning two weeks after Easter, and Trinity term, beginning after the feast of the Trinity. Most terms consisted of four sessions each, while extra business was transacted on subsequent 'bye days'. Between sessions and terms the proctors carried out the orders given by the judge in court. Sentences were usually pronounced at the beginning of a term before further business was undertaken.
On law and procedure in the Court of Arches, see also:
Lawrence Stone, 'Road to divorce', 1990, pp. 183-197.
James Thomas Law, ed., 'Forms of ecclesiastical law; or, The mode of conducting suits in the Consistory Courts : being a translation of the first part of Oughton's Ordo judiciorum, with large additions ... 2nd ed. (London, 1844). Library copy at H5154.L2.
R.H. Helmholz, 'Roman canon law in Reformation England' (Cambridge, 1990). Library copy at H5151.H3.
TYPES OF CASE HEARD
The jurisdiction of the Court of Arches was in all matters pertaining to the jurisdiction of ecclesiastical courts in general. The cases are divided into two categories, the 'instance' cases between two parties, which included cases of defamation of character, and matrimonial and testamentary cases until 1858, and 'ex officio' cases prosecuted by, or on behalf of, the judge. The latter included cases of lay and clerical discipline, or 'correction', and parish affairs, that is church fabric, faculties, church rates, tithes, etc. The 'ex officio' cases are, however, not easily distinguished in the catalogue because they are entered under the name of the proctor or other person who prosecuted the case on behalf of the judge. There are also a few cases of officials of lower courts being sued for illegal practices, and proctors suing for the payment of their fees. we
Below is a list of all the categories of cases which came within the jurisdiction of ecclesiastical courts:
Matrimonial Cases:
Divorce or separation - 'a mensa et thoro' [not a full divorce in the modern sense but a legal separation from 'bed and board'; separated parties were not entitled to re-marry]: adultery; cruelty
Nullity of marriage - separation 'a vinculo' [a complete dissolution of the marriage]: consanguinuity, affinity or incest; impotence or frigidity; precontract or bigamy; lunacy; minority
Marriage contracts of 'sponsalita' (espousals)
Jactitation of marriage [asserting a claim to be married]
Restitution of conjugal rights
Testamentary Cases:
Subtraction of legacies
Probate
Administration
Exhibition of inventories
Defamation of Character
Lay Discipline:
Incontinence or correction of morals
Non attendance at church or Holy Communion
Brawling or misbehaviour in church or churchyard
Clerical Discipline:
Incontinence
Negligence
Dilapidations
Simony and disputed appointments
Ritualism
Church Affairs:
Non payment of tithes
Non payment of rates
Churchwardens - disputed elections; disputed accounts; failure to take oaths
Pews, disputed rights to
Faculties
In comparing the types of cases heard between 1660 and 1800, and those heard after that date, it is seen how the range of ecclesiastical jurisdiction was declining, especially during the nineteenth century. The incidence of some types of case, such as defamation of character and correction for immoral behaviour, declined of their own accord as public attitudes changed, and they were no longer thought to be a fit field for interference. On the other hand (following the Court of Probate Act and the Matrimonial Causes Act of 1857) the establishment of the Court of Divorce, Probate and Admiralty in 1858 removed at once two of the most important fields of ecclesiastical jurisdiction, matrimonial and testamentary cases. This transfer of jurisdiction over marriage and probate to the civil courts caused a dramatic fall in the number of cases heard. Between 1800 and 1858 some 860 cases were heard before the Court of Arches, between 1859 and 1900 only 136 cases were heard. The compulsory payment of church rates was abolished in 1868 and the payment of tithes in 1936. The increased use of letters of request [a procedure designed to bypass the inferior courts and avoid the expensive delays incurred in an appeal] illustrates the decline in the practice of ecclesiastical law. The majority of cases remaining within the court's jurisdiction were cases of disputed faculties, which had previously been a very small proportion of the cases heard, and cases of clerical discipline. During the nineteenth century three acts defined and elaborated the procedure for dealing with various aspects of clerical indiscipline and encouraged such cases to be submitted to the Court of Arches. The Church Discipline Act of 1843 and the Clergy Discipline Act of 1892 defined the procedure of appeal from local courts to the Court of Arches, and the Public Worship Regulation Act of 1874 set up a new system for the trial of cases of ritualism but the judge appointed under the act was the Dean of the Arches.
Throughout the period covered by these records between one third and one quarter of the cases came from London and the Home Counties. Up to 1800 nearly one third of the cases tried related to the probate of wills, about 11% to defamation of character, 4% to clerical discipline, divorce or separation 4% and the non-payment of rates or tithes 5% and 4% respectively. Other cases occupied a comparatively small proportion of the court's time. After 1800 cases of defamation are down to 1%, testamentary cases decline to 14% but cases of divorce are up to 25% and cases of clerical discipline up to 20%.
SENTENCES AND CONCLUSIONS IN ARCHES CASE
Proceedings in Arches cases might reach their conclusion in a definitive sentence by the judge. Alternatively proceedings might be stopped by a royal inhibition or because an out of court settlement had been agreed between the parties in the case. Litigants commonly went to court to force the defendant to arbitration; it was a tactical manoeuvre to obtain a settlement. Lawrence Stone found that only about one fifth to one half of all cases in 18th century ecclesiastical and civil courts ever came to sentence, and in the case of matrimonial suits in the Court of Arches 60% never reached sentence (see Lawrence Stone, 'Road to divorce', pp. 24-40).
The sentences in the archive of the Court of Arches are formal records following a set formula including a statement that one of the parties has proved his case and sometimes awarding costs. They do not record the Dean's judgements or any discussion of the legal issues. Draft sentences were submitted by the opposing proctors in each case; the Dean selected one of these. Lawrence Stone commented that since the Arches' archive may include draft sentences submitted by both proctors it is sometimes impossible to know which of the two the Dean favoured (Stone, 'Road to divorce', p. 197).
The conclusion of an Arches case might be followed by an appeal to the High Court of Delegates (or, from 1832, to the Judicial Committee of the Privy Council). Such appeals were common. On the Court of Delegates, see G. I O. Duncan, 'The High Court of Delegates (Cambridge, 1971); Library copy at OC 325.D8. Case records of the Court of Delegates, housed in the National Archives (ref DEL), may be traced through [Jesse Addams], 'A catalogue of processes in the registry of the High Court of Delegates from 1609 to 1823' [London, 1824]; Library copy at OC 325, and through the online catalogue of the National Archives. Records of appeals to the Judicial Committee of the Privy Council are also held at the National Archives (ref PCAP) and may be sought through the the online catalogue of the National Archives. It should be borne in mind that a case heard in a lower court as Jones v Smith may, after appeal by Smith, be heard in a higher court as Smith v Jones.
OFFICIALS
The Official Principal (ie. the judge) of the Court of Arches is the Dean of the Arches.
Deans of the Arches:
2009- Charles George
2001-2009 Sheila Cameron
1980-2000 Sir John Owen
1977-1980 Rev'd Kenneth Elphinstone
1972-1976 Sir Harold Kent
1971-1972 Walter Wigglesworth
1955-1971 Sir Henry Willink
1934-1955 Sir Philip Wilbraham Baker-Wilbraham
1903-1934 Sir Lewis Dibdin
1898-1903 Sir Arthur Charles
1875-1898 Lord Penzance
1867-1875 Sir Robert Phillimore
1858-1867 Stephen Lushington
1852-1858 Sir John Dodson
1834-1852 Herbert Jenner-Fust
1809-1834 Sir John Nicholl
1788-1809 Sir William Wynne
1778-1788 Peter Calvert
1764-1778 Sir George Hay
1758-1764 Sir Edward Simpson
1751-1758 Sir George Lee
1710-1751 John Bettesworth
1703-1710 Sir John Cooke
1689-1703 George Oxenden
1686-1688 Sir Thomas Exton
1684-1686 Sir Richard Lloyd
1672-1684 Sir Robert Wiseman
1660-1672 Sir Giles Sweit
I. Churchill, 'Canterbury Administration', lists Deans 1261-1504 (in vol. 2, pp.238-240).
The Treasurer's Book of Doctors' Commons includes a list of Deans 1512-1764 (MS 2080 f. 46).
A typescript list of Court of Arches officials (proctors and advocates) c.1539-1755 is available in the Court of Arches catalogue in the Lambeth Palace Library reading room. References to officials are found in Arches Kkk [records of proctors and advocates], A [Act books], and Aaa [Assignation books] (see card index); Archbishops' Registers [ref: Reg]; Faculty Office muniment books [ref: F I]; Faculty Office fiats [ref: F II]. See also G D Squibb, 'Doctors' Commons: a History of the College of Advocates and Doctors of Law' (1977) [Library copy at OC 341.S7]; records of Doctors' Commons at Lambeth Palace Library [ref: DC]. MS 4255 provides a list of officials in archiepiscopal administration, including the Court of Arches, 14-18th century.