were heard by the King in Chancery, the Royal authority being represented by a court known as the Court of Delegates, so called because the judges in it were appointed by the King under the great seal: but in 1833 7 this was superseded by the present modern system of appealing to the King in Council, i.e., to the Judicial Committee of the Privy Council. 76 Before the Reformation the Papal supremacy was recognized in England; but after the Reformation the cardinal principle of English ecclesiastical law is the supremacy of the State over the church. Henry VIII placed the ecclesiastical laws on this footing: "Such canons, institutions, ordinances synodal or other ecclesiastical jurisdictions spiritual as yet be accustomed and used here in the Church of England . not being repugnant to the laws or statutes of the realm ercised shall be ex for the time within this realm."" Henry VIII intended to have a code of the English ecclesiastical laws made:78 but this design was never carried into effect. He obtained power to appoint a commission to decide what of the old laws ought to be retained and what ought to be abolished." The work was actually accomplished by a sub-committee of eight in the reign of Edward VI under the name of Reformatio legum ecclesiasticarum, but this never received the royal authority. Although Elizabeth revived Henry's authority for the scheme, the plan was never executed; and thereafter English ecclesiastical law has remained on the footing, assigned to it in the statute of Henry VIII.80 Although the connection between the English church and the Pope was severed by the Reformation, the jurisdiction of the ecclesiastical courts of the Church of England was practically the same as in the 76 Privy Council Appeals Act, 1832 (243 William IV., c. 92). Appeals other than eccelesiastical go to the House of Lords, and not to the Privy Council. 77 35 Henry VIII., c. 16. 78 See 25 Henry VIII., c. 19; 27 Henry VIII., c. 8. 79 25 Henry VIII., c. 1. 801 Elizabeth, c. 1. ante-Reformation days of the Papal supremacy. Down to the 19th century ecclesiastical jurisdiction in England was of two sorts: criminal and civil. As to the laity, the criminal jurisdiction of ecclesiastical courts extended to heresy, adultery, incest, fornication, simony, brawling in church or churchyards, and defamation. The clergy and church wardens were punished criminally by tribunals of the church for offences connected with their office. 81 The civil jurisdiction of English ecclesiastical courts ordinarily embraced causes of marriage, divorce, intestate succession, testamentary succession (including legacies and bequests). The 19th century, however, witnessed a very large curtailment of the ecclesiastical jurisdiction. In 1855 the ecclesiastical courts lost their cognizance of defamation. In 1857 all causes of testamentary and intestate succession were transferred to the newly established Court of Probate.2 In 1860 the power of ecclesiastical courts to try and punish the laity for brawling was abolished." And in the same year the ecclesiastical jurisdiction as to marriage and divorce was given to the newly established Divorce Court. Finally, ecclesiastical courts no longer have power to correct lay persons for moral offences: such is inconsistent with modern custom.S Ecclesiastical courts and jurisdiction in the English Colonies of America, later the United States. Although no bishops were sent to the English colonies until 1787, and consequently there were no regular ecclesiastical courts in the colonies prior to their 18th century revolution and separation from the mother country, yet the Bishop of London was the diocesan bishop of the colonists in North America; and he was usually named as the ordinary (bishop) in letters appointing the governors of the various colonies in order 81 There were also some minor offences: 11 Laws of England, p. 504. 82 20 and 21 Victoria, c. 77, ss. 3 and 4. 83 23 and 24 Victoria, c. 85, s. 1. 84 20 and 21 Victoria, c. 85, ss. 2 and 4. 85 11 Laws of England, p. 505. 86 Phillimore v. Machon, 1 P. D. 481 (1876). to provide for the testamentary and matrimonial jurisdiction assigned to the Church of England by English law. In New York state the court of probate is still called the Surrogate Court-surrogate being the regular name for a deputy ecclesiastical judge. In the absence of regular ecclesiastical courts in the colonies, their civil courts assumed, so far as was necessary to the welfare of the colonists, much of the civil jurisdiction appertaining to church tribunals in England-the spiritual features of such jurisdiction being disregarded. And a large portion of the mode of practice and rules of the English ecclesiastical courts was adopted in America, and has survived the separation of the Colonies from the mother country. CHARLES P. SHERMAN. THE NEW "BANKRUPTCY ACT." By F. G. T. LUCAS, BARRISTER, VANCOUVER. On July 1st of this year will come into force in Canada the new "Bankruptcy Act." Bankruptcy is a proceeding by which, when the debtor cannot pay his debts, or his creditors cannot obtain satisfaction of their claims, the State (in Canada acting through the medium of the Dominion Parliament under its new "Bankruptcy Act") takes possession of his property by a trustee appointed for the purpose (herein known as the "Official Trustee"), and such property is realized and distributed in equal proportions amongst his creditors. The debtor, in the meantime, has protection from legal proceedings at the instance of his creditors and, provided he has not been guilty of misconduct, and subject to certain definite restrictions specifically set out in the Act, he (the debtor) can obtain a discharge from his debts and liabilities and commence his business life anew. This legislation involves a very radical change in the relationship of debtors and creditors in Canada. Heretofore and now, the only legislation pertaining to insolvent debtors has been and is the Acts relating to assignments for the benefit of creditors, commonly known as the "Creditors' Trust Deeds Act," of the several provinces. As insolvency is one of the matters which, under the "British North America Act," comes within the exclusive jurisdiction of the Dominion Parliament, the Provincial Legislature in drafting their "Creditors' Trust Deeds Acts," have carefully avoided this feature. Any person, insolvent or not, can make an assignment of his assets for the benefit of his creditors under the "Creditors' Trust Deeds Act." In practice, however, it has worked out that no one makes such assignments except an insolvent. No one can be forced to make an assignment for the benefit of his creditors, and an insolvent gets no permanent relief in making an assignment for the benefit of his creditors, because he is not thereby at any time ever absolved from his liability to his creditors, but must pay them in full if he has the means at any time in his lifetime to do so (subject only to such defences as he might at a later time raise by way of the Statutes of Limitations). The result is not satisfactory in practice, either to the debtor or to the creditors, as nothing is accomplished except only equable and rateable distribution of assets which, at any particular time, may be in the possession of the insolvent and the consequent diminution of legal process against the insolvent, not because there is denied any legal right to proceed, but because such procedure under such circumstances will bring no useful result. All these various features of present conditions are changed by the new "Bankruptcy Act." Any debtor who commits what is described as an Act of Bankruptcy, leaves himself open to attack by any creditor or creditors in a sum of $500 or over, the attack being by way of petition which such creditors may take to a Bankruptcy Court for a receiving order under the "Bankruptcy Act," and for a declaration that such an individual is a bankrupt. If on the hearing of such petition, the Judge or Court is satisfied that the debtor is insolvent and has committed an act of bankruptcy, he will declare such debtor a bankrupt, and will appoint an official trustee to whom forthwith all the assets of the bankrupt pass. "ACT OF BANKRUPTCY." What, then, is this "Act of Bankruptcy," which, when committed or done, leaves a man open to such a serious proceeding? The answer is contained explicitly in the "Bankruptcy Act." Any one of the following eight things is an act of bankruptcy: 1. If he makes an assignment for the benefit of creditors. |