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The consistory court is a type of ecclesiastical court, especially within the Church of England. They were established by a charter of King William I of England, and still exist today, although since about the middle of the 19th century consistory courts have lost much of their subject-matter jurisdiction. Each diocese in the Church of England has a consistory court (called in the Diocese of Canterbury the Commissary Court).

Contents

Jurisdiction

Before 1858 consistory courts exercised jurisdiction (concurrently with the courts of their respective provinces) over matrimonial and probate matters. This jurisdiction was moved to the secular courts by the Court of Probate Act 1857 and the Matrimonial Causes Act 1857. Consistory Court had also corrective jurisdiction over the crimes of clerks, but this was abrogated by the Church Discipline Act 1840. Other former areas of jurisdiction included defamation and certain contracts cases.

Today, the principal business of consistory courts is now the dispensing of faculties dealing with churchyards and church property, although they also hear the trial of clergy (below the rank of bishop) accused of immoral acts or misconduct (under the Clergy Discipline Act 1892).

Procedures

The Consistory court usually sits "on paper" without formal hearings. When hearings are required they can be held in any convenient building; either an existing court building or a school or community hall hired for the purpose. Historically Consistory Courts will have say in the Cathedral and many cathedrals still contain court rooms, although these are now used for other purposes. Consistory courts dealing with planning applications may sit in the church affected; but if the application is the subject of dispute the court will sit in a neutral venue so that "dispute" and "conflict" isn't brought into the church.

Chancellors

Each Consistory court is presided over by the Chancellor of the Diocese (or in Canterbury the Commissary-General). The chancellor is appointed by letters patent. All jurisdiction, both contentious and voluntary, is committed to the Chancellor under two separate offices, those of official principal and vicar-general: the distinction between the two offices is that the official principal usually exercises contentious jurisdiction and the vicar-general voluntary jurisdiction. (Technically the bishop himself may sit, but this no longer happens and is regarded as an obsolete anomaly.)

The chancellor must be over 30 years of age, a barrister of seven years' standing or who has held high judicial office, and a communicant of the Church of England. He takes the judicial oath, the oath of allegiance and makes a declaration of assent. The chancellor may be removed by the bishop if the Upper House of the Convocation of the province so resolves.

Chancellors are addressed on the bench as “Worshipful Sir" or "Sir”. Most wear the robes of a QC even if not of that degree, though at least one sits in his academical robes. The court itself is styled "this venerable court". Most have a mace, carried by the apparitor, who is usually a member of the staff of the diocesan registry and who is the official who serves the processes of the court and causes defendants to appear by summons.

There may also be a deputy chancellor, who may hear certain matters. He must be a barrister of seven years' standing or have held high judicial office.

Registrars

The Registrar of the diocese is also the Registrar of the consistory court. He was usually also the legal secretary to the bishop, and now must be a legal adviser, and is registrar to the archdeacons. He must be a solicitor learned in ecclesiastical law, and be a communicant of the Church of England. He is appointed by the bishop after consultation with the Bishop's Council and the Standing Committee of Diocesan Synod. Each consistory court has a seal, which is in the care of the registrar. There may be a deputy registrar, who acts only in the absence of the registrar. There may be a separate clerk of the court, if there might be a conflict of interest for the registrar to act in this capacity. He must be a solicitor.

Discipline of Clergy

The consistory court can only become involved in the case of a priest or deacon who is accused of an offence (not involving matters of doctrine, ritual or ceremonial) after the bishop has given the complainant and the accused an opportunity of seeing him. The bishop may decide not to proceed, but if he does favour a trial, the matter is referred to an examiner with legal qualifications (who must be a communicant). If he decides that there is a case to answer, then the trial begins in the consistory court.

Trials and Appeals

The chancellor is expected to appoint a deputy chancellor if he himself is inexperienced in criminal law. In a trial the court comprises four assessors, two lay and two clerical, who are the sole finders of fact, and their verdict must be unanimous. The judge is required to sum up in open court to the assessors. If the chancellor certifies that the case involves a question of doctrine, ritual or ceremonial, appeal lies to the Court for Ecclesiastical Causes Reserved. In the case of faculties, appeal lies to the provincial court (either the Arches Court for Canterbury or the Chancery Court for York), and then to the Judicial Committee of the Privy Council.

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1911 encyclopedia

Up to date as of January 14, 2010

From LoveToKnow 1911

CONSISTORY COURTS, those ecclesiastical courts wherein the ordinary jurisdiction of the bishop is exercised (see Consistory). They exist in every diocese of England. Consistory courts were established by a charter of William I., which appointed the cognizance of ecclesiastical causes in a distinct place or court from the temporal. The officer who exercises jurisdiction in a consistory court is known as the chancellor (q.v.), and he is appointed by patent from the bishop or archbishop. All jurisdiction, both contentious and voluntary, is committed to him under two separate offices, those of official principal and vicar-general; the distinction between the two offices is that the official principal usually exercises contentious jurisdiction and the vicar-general voluntary jurisdiction. (In the province of York there is an official principal of the chancery court and a vicar-general of the diocese.) Since about the middle of the 1 9th century consistory courts have been shorn of much of their importance. Before the year 1858 consistory courts exercised concurrently with the courts of their respective provinces jurisdiction over matrimonial and testamentary matters. This jurisdiction was taken away by the Court of Probate Act 1857 and the Matrimonial Causes Act 1857. They had also corrective jurisdiction over criminous clerks, but this was abrogated by the Church Discipline Act 1840. The principal business of consistory courts is now the dispensing of faculties. The procedure in such is strictly forensic, for all applications for faculties, though they may be unopposed, are commenced by citation, calling on all who may have an interest to oppose. From the consistory courts an appeal lies to the provincial courts, i.e. the arches court of Canterbury and the chancery court of York. Also, by the Clergy Discipline Act 1892, a clergyman may be prosecuted and tried in a consistory court for immoral acts or conduct. Under this act, either party may appeal either to the provincial court or to the king in council against any judgment of a consistory court.


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