Consistory court
Consistory courts have been in existence in England since shortly after the Norman conquest and their jurisdiction and operation was essentially unaffected by the English reformations.
[1] Originally, the jurisdiction of consistory courts was very wide indeed and covered such matters as defamation, probate, and matrimonial causes as well as a general jurisdiction over both clergy and laity in relation to matters relating to church discipline and to morality more generally and to the use and control of consecrated church property within the diocese.
During the early modern period it became increasingly common for the bishop of an anglican diocese, or the archdeacon of a rural deanery, to delegate jurisdiction of the diocesan consistory court to a chancellor, who presided over cases such as probations of estates, excommunications, underpayment of tithables, and other serious moral transgressions within the diocese.
This allowed the diocesan bishop and other clergy to focus on spiritual matters and retain an advocate learned in the law to oversee the administration of the inquisitorial court cases.
The chancellor typically sat on a throne at the front of the ecclesiastical courtroom, presiding over the well where the proctors and litigants would sit.
Inside a wooden enclosure before the chancellor and registrar would typically be a round table at which the proctors and litigants would sit.
[12] In contrast with the rectilinear benches for the attorneys in a temporal English common law courtroom, the round table of the ecclesiastical courtroom symbolized that within the inquisitorial system of the anglican church, the role of proctors and litigants was to help inform the court of the truth, regardless of the best interest of whom they were hired to represent.
[13] Often, proctors would bring cases against parishioners where no dispute previously existed, or even against the advice of clergy such as parish priests and bishop's assistants.
Additionally, apparitors might also ensure the appearance of ecclesiastical defendants by overseeing the church prison for the archdeaconry, diocese, or archdiocese.
As a general rule, land and buildings become subject to the jurisdiction of the consistory court by virtue of being consecrated by the bishop of the diocese.
[26] It is because of the existence of the faculty jurisdiction that the "ecclesiastical exemption" from listed building control[c] is provided for in heritage protection legislation, Parliament having taken the view that there was already in place, in relation to the buildings and land of the Church of England that were in ecclesiastical use, a satisfactory legal regime controlling their use and alteration.
Much of the work of the consistory courts today involves applying principles of ecclesiastical law to applications ("petitions") for faculties to make alterations to listed church buildings.
The criteria to be adopted by consistory courts when considering proposals for the alteration of churches which are listed buildings under the Planning (Listed Buildings and Conservation Areas) Act 1990 are set out in Re St Alkmund, Duffield [2013] Fam 158, a decision of the Arches Court of Canterbury.
Most have a mace, carried by the apparitor, who is usually a member of the staff of the diocesan registry and who was historically the official who served the processes of the court and caused defendants to appear by summons.
Contentious cases can be determined on consideration of written representations if the chancellor considers it expedient and all the parties agree.
[32] One of the oldest surviving complete ecclesiastical courtrooms in Great Britain is the consistory court at Chester Cathedral.
Until the latter part of the nineteenth century there were legal practitioners in England known as "advocates" who practised solely in ecclesiastical and admiralty law and formed a chartered institution called Doctors' Commons.
Where commercial interests are involved in contested faculty proceedings (e.g. a petition to allow the grant of a way leave to a utility undertaker) legal representation is usually engaged by the petitioners.
[39] The last discipline case to be heard by a consistory court was that of Brandon Jackson, the Dean of Lincoln, who was acquitted of sexual misconduct in 1995.
[43] A decision of the Court of Ecclesiastical Causes Reserved can be appealed from by presenting a petition to the Clerk of the Crown in Chancery that His Majesty appoint a Commission of Review.
