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three es

baronage,

commons.

system

led to the division and classification of the nation in three Rise of the estates. The growth of the system of estates in England tates,-the was simply a part of a general movement which constitutes clergy, the an important epoch in the constitutional history of Europe.1 and the The causes which brought about the establishment of the estate system were general in their operation, and in each one of the European countries the result was reached about the same time. The complete establishment of the system is generally regarded by the historians as the work of the thirteenth century. During that period was established in Europe that type of a national assembly into which the several classes or orders of society entered in the form of definitely organized estates.2 The estate system itself con- Estate sisted of the division of a nation into definite classes or defined. orders of men; the outcome of the system was that type of a national assembly in which each class or order appeared in person or by representatives. In each country the system has its special or local history, but as a general rule in all of the European constitutions the three political factors are arranged upon substantially the same principle. In the history of the English nation the three estates appear as the Clergy, clergy, the baronage, and the commons, and not, as is often and com erroneously stated, as the king, lords, and commons. In the mons, and not king, language of the Lords' Report, “In England . . . the clergy lords, and have been esteemed one estate, the peers of the realm the second estate, and the commons of the realm, represented in parliament by persons chosen by certain electors, a third estate." According to no medieval theory of government could the king be considered an estate of the realm. The

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1 See Comparative Politics, p. 230 seq., and p. 233..

2 "Notwithstanding the difference of circumstances and the variety of results, it is to this period that we must refer, in each country of Europe, the introduction, or the consolidation, for the first time since feudal principles had forced their way into the machinery of government, of national assemblies composed of properly arranged and organized estates."- Stubbs, Const. Hist., vol. ii. pp. 159, 168.

8 "The lower house of parliament is not, in proper language, an estate of the realm, but rather the image and

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baronage,

commons.

King not an estate.

Estate of the clergy.

several classes into which the nation was divided represented the estates, and over all stood the king, not as a coördinate political factor, but as the head of the state itself. As Chancellor Stillington quaintly expressed it, in the 7th of Edward IV., "This land standeth by three states, and above that one principal, that is, to wit, lords spiritual, lords temporal, and commons, and over that state-royal, as our sovereign lord the king." 1

As, in obedience to a pious courtesy, precedence was always conceded to the clergy in the arrangement of estates, the causes will be first examined which led to their withdrawal from the main body of the nation, and to their organization into a distinct estate or order. The fact has been more than once pointed out that the distinctive feature in the history of the church before the Conquest was its perfect oneness with the state. Throughout the pre-Norman period the same legislative and judicial assemblies dealt alike with ecclesiastical and temporal business without the slightest jealousy or conflict of authority. The witan legislated for the church as it did for the state, and in the witan the bishop as well as the ealdorman was elected and deposed. In the shire-moot the bishop and the ealdorman sat side by side as its constitutional presidents, and in the ancient popular courts there was no separation of secular from spiritual business.2 The Effects of natural result of the deposition of the native English bishops which followed the Norman conquest, and the promotion of foreign prelates to their vacant thrones, was to draw the English church from its position of practical independence and isolation into closer communion with the rest of Western Christendom, and into more direct dependence upon the see of Rome. Out of this closer connection with Rome grew the tendency that now began to manifest itself to sever the organization of the church from that of the state. Upon the papal throne now sat one of the greatest of the Roman pontiffs, Gregory VII., the leading ideas of whose policy. were the complete establishment of the supremacy of the

the Con

quest on
the national
church.

1 Rot. Parl., vol. v. p. 622. The treaty of Staples, in 1492 was to be confirmed "per tres status regni Angliæ ritè et debitè convocatos, videlicet per prelatos et clerum, nobiles, et commu

nitates ejusdem regni." —Rymer, vol. xiii. p. 508; Middle Ages, vol. iii. p. 103. 2 Upon this whole subject see above, pp. 187, 200.

8 See above, p. 259.

VII.'s effort

distinct

franc.

papacy within the church, and the supremacy of the ecclesi- Gregory astical over the civil power. In order to make effectual the to make the assertion of the supremacy of the church over the state, clergy a Gregory labored to bring about "the establishment of the order. clergy as a distinct order, animated by one universal corporate spirit, and cut off from those ties of citizenship and kindred which bind men together in earthly bonds."1 Through the agency of the foreign prelates the ecclesiastical policy which was now impressing itself upon the whole of Western Christendom was brought directly to bear upon the organization of the English church. The new ecclesiastical policy Ecclesiasti cal policy organized by William and Lanfranc contemplated the com- of William plete severance of spiritual from temporal business through and Lanthe creation of distinct courts and councils in which the church could judge and legislate upon its own affairs without secular interference. By an express enactment William and his witan decreed the separation of the spiritual from the temporal tribunals. This ordinance, after declaring the episcopal laws which had previously been in force in England to be bad and contrary to the sacred canons, forbade the bishops and archbishops to bring any cause involving questions of canon law, or questions concerning the cure of souls, before the courts of the hundred. Henceforth they are to hold courts of their own, in which causes are to be tried, not by the customary but by the canon law, and all interference by laymen in spiritual causes is expressly forbidden.2 In this way was brought about the organization of a distinct system of ecclesiastical courts whose jurisdiction was destined to grow and widen with the growth of the canon law. The Growth of growth of this new system of law not only gave to the clergy law.

1 Freeman, Norm. Cong., vol. iv. p. 287.

As to the ordinance separating the spiritual from the temporal courts, see above, p. 260.

8 For the general history of the canon law in England, cf. Hale's Hist. of the Common Law, ch. ii.; Reeves' Hist. of the English Law, chs. xxv., xxvi. (Finlason ed.); Burn's Ecclesiastical Law; Phillimore's Ecclesiastical Law of the Church of Eng.; Stubbs, Const. Hist., vol. i. p. 284; vol. ii. pp. 170, 171; vol. iii. p. 321. The canon

law is of no intrinsic obligation in Eng-
land. "All the strength that either the
papal or imperial laws have obtained in
this realm, or indeed in any other king.
dom in Europe, is only because they
have been admitted and received by
immemorial usage, ... or else because
they are in some cases introduced by
consent of parliament." - Blackstone,
Com., vol. i. pp. 79, 80. And yet it is

one of the sources of the common law;
from it has been drawn, for instance, the
rules regulating the descent of real
property.

the canon

Ecclesiastical divis

ions of the kingdom:

the province;

divisions.

a more distinct civil status than they had ever possessed before, but it ultimately drew into the spiritual courts a mass of business with which the church had heretofore had only a remote connection. Out of this new order of things soon grew up claims upon the part of churchmen to exemption from all temporal jurisdiction, and to the right of appeal to Rome, claims which led after bitter strife to the adoption in the reign of Henry II. of the restraining measures embodied in the Constitutions of Clarendon, whose leading provisions have heretofore been drawn out. By the adoption of the Constitutions, the jurisdiction of the ecclesiastical courts was distinctly defined, and a way was found to keep them within proper limits by means of the writ of prohibition issued from the king's courts of law or equity.2

The ordinance of William led directly to the establishment of a distinct system of spiritual courts, whose difficult history cannot be at all clearly explained without reference to the ecclesiastical divisions into which the kingdom as a whole is subdivided. Ecclesiastically England is divided into the two provinces of Canterbury and York, whose subdivisions closely coincide with the subdivisions of the kingdom itself. As the shire is the largest and most important division of the diocese the kingdom, so the diocese is the largest and most imporand its sub- tant division of the province. And as the shire-moots were the most important local courts in the kingdom, so the diocesan councils were the most important local courts in the church. "These were the county courts and the burghmots of the church, and were composed of the bishop and his superior clergy, the archdeacon, abbots, deacons, and sometimes of all the clerici' and the laity."4 As out of the ancient county court held by the king's judges in the shire was slowly developed the modern court of assize, so out of the diocesan council was developed, by a process whose history is somewhat obscure, the consistory court held by each dio

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cesan bishop for the trial of all ecclesiastical causes arising in his diocese.1 The subdivisions of the diocese roughly correspond with those of the county. As each county is divided into hundreds, and each hundred into townships, so each diocese is divided into archdeaconries, each archdeaconry into rural deaneries, and each deanery into parishes. The unit of organization in each is the same, - the parish, as a general rule, simply representing the township in its ecclesiastical aspect.2 The most inferior court in the ecclesiastical system is the Archdeaarchdeacon's court, the hundred court of the church, whose jurisdiction is sometimes concurrent with, and sometimes exclusive of, the jurisdiction of the consistory court. From the archdeacon's court an appeal lies to the bishop's court.3 Next in the ascending scale is the consistory court held by The bisheach diocesan bishop for the trial, as before stated, of all ecclesiastical causes arising in his diocese. In this court the bishop's chancellor or commissary is the judge, from whose decree an appeal lies to the archbishop's court.*

con's court

op's court.

bishop's

In the province of Canterbury the archbishop's court is The archknown as the court of the arches, from the name of the court. church (Sancta Maria de arcubus) in which the court was anciently held. The judge of this court- the dean of the arches hears and determines appeals from all inferior courts in the province. The court of peculiars is a branch of the Court of court of arches, whose jurisdiction extends over all those peculiars. parishes in the province of Canterbury which are exempt from the bishop's jurisdiction and subject to the metropolitan only. From the archbishop's court, after the final extinction of Court of the right of appeal to Rome, an appeal lay to the king in chancery, that is, to a court of delegates appointed by the king's commission under the great seal, by virtue of the statute 25 Henry VIII., c. 19, until the partial repeal of that statute by statute 2 & 3 Will. IV., c. 92, whereby such appeals were transferred to the king in council.5 The ecclesias

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delegates.

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