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).
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 courts also had 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.
The Ecclesiastical Courts Act 1855 and the Ecclesiastical Courts Jurisdiction Act 1860 removed the remaining judicial functions of the courts. (The National Archives)
Today, the principal business of consistory courts is now the dispensing of faculties dealing with churchyards and church property, although they retain the power to hear the trial of clergy (below the rank of bishop) accused of immoral acts or misconduct (under the Clergy Discipline Act 1892).
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 had a say in the cathedral and many cathedrals still contain court rooms, although these are now used for other purposes. Consistory courts dealing with faculty applications may sit in the church affected.
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.
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.
The rules under which the clergy can be disciplined are governed by the Ecclesiastical Jurisdiction Measure adopted by the Archbishops’ Communion in 1963. Courts have only been convened three times for this purpose since then. (Under Authority – Report on Church Discipline. Church House Publishing. 1996. p. 3. ISBN 0-7151-3796-4.) 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.(“Leading Article: The Last Chronicle of Lincoln”. The Independent. 20 July 1995.)
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.
Most cathedrals had purpose-built courtrooms. Many have since been converted for other uses, for example the former consistory court at St Paul’s Cathedral is now the Chapel of the Order of St. Michael and St. George. One of the oldest surviving complete ecclesiastical courtrooms in Great Britain is the consistory court at Chester Cathedral (pictured above). (Alfred Ingham (2003). Cheshire: Its Traditions and History. Kessinger Publishing. p. 44. ISBN 0-7661-5506-4.) Probably the oldest known example (1617) is in the Chapel of St Nicholas, King’s Lynn, Norfolk.
Today, a consistory court can theoretically be convened and meet in any appropriate church building.