1902 Encyclopedia > Ecclesiastical Law

Ecclesiastical Law




ECCLESIASTICAL LAW generally means the law of the church, in countries where an established religion is recognized by the state, but in a more general sense it would include the whole body of the law relating to religion. It is in this sense that the phrase is used by American lawyers, and it is only in this sense that it can be used of Ireland since the disestablishment of the state church in that country. The relation of the ecclesiastical law to the rest of the law, especially in respect of legislation and judicature, is one of the most important points in the con-stitution of a country. Where the Roman Catholic religion is recognized by the state the jurisprudence of the canon law prevails, but the relations between the Papal See and the state are governed by special conventions, or concordats. See CANON LAW.

The ecclesiastical law of England is remarkable for its complete dependence upon the authority of the state. The Church of England cannot be said to have a corporate existence nor even a representative assembly. The Con-vocation of York and the Convocation of Canterbury are provincial assemblies possessing no legislative or judicial authority. The ecclesiastical judicatories are for the most part officered by lajmien, and the last court of appeal is the Judicial Committee of the Privy Council. In like manner changes in the ecclesiastical law are made directly by Parliament in the ordinary course of legislation, and in point of fact a very large portion of the existing ecclesiastical law consists of Acts of Parliament.





The sources of the ecclesiastical law of England are thus described by the leading text-writer on this subject : — " The ecclesiastical law of England is compounded of these four main ingredients—the civil law, the canon law, the common law, and the statute law. And from these, digested in their proper rank and subordination, to draw out one uniform law of the church is the purport of this book. When these laws do interfere and cross each other, the order of preference is this :—' The civil law submitteth to the canon law; both of these to the common law; and all three to the statute law. So that from any one or more of these, without all of them together, or from all of them together without attending to their comparative obligation, it is not possible to exhibit any distinct prospect of the English ecclesiastical constitution.' Under the head of statute law Burn includes ' the Thirty-nine Articles of Religion, agreed upon in Convocation in the year 1562 ; and in like manner the Rubric of the Book of Common Prayer, which, being both of them established by Acts of Parliament, are to be esteemed as part of the statute law.'" The first principle of the ecclesiastical law is the assertion of the supremacy of the crown, which in the present state of the constitution means the same thing as the supremacy of Parliament. This principle has been maintained ever since the Reformation. Before the Reformation the ecclesiastical supremacy of the Pope was recognized, with certain limitations, in England, and the church itself had some pretensions to ecclesiastical freedom. The freedom of the church is, in fact, one of the standing provisions of those charters on which the English constitution was based. The first provision of Magna Charta is quod ecclesia Anglicana libera sit. By the various enactments of the period of the Reformation the whole constitutional position of the church, not merely with reference to the Pope but with reference tD the state, was definitely fixed. The legislative power of Convocation was held to extend to the clergy only, and even to that extent required the sanction and assent of the Crown, The common law courts controlled the jurisdiction of the ecclesiastical courts, claiming to have " the exposition of such statutes or Acts of Parliament as concern either the extent of the jurisdiction of these courts or the matters depending before them. And there-fore if these courts either refuse to allow these Acts of Parliament, or expound them in any other sense than is truly and properly the exposition of them, the king's great courts of common law may prohibit and control them."

The design of constructing a code of ecclesiastical laws was entertained during the period of the Reformation, but never carried into effect. It is alluded to in various sta-tutes of the reign of Henry VIII., who obtained power to appoint a commission to examine the old ecclesiastical laws, with a view of deciding which ought to be kept and which ought to be abolished; and in the meantime it was enacted that " such canons, institutions, ordinances, synodal or provincial or other ecclesiastical laws or juris-dictions spiritual as be yet accustomed and used here in the Church of England, which necessarily and con-veniently are requisite to be put in ure and execution for the time, not being repugnant, contrarient, or derogatory to the laws or statutes of the realm, nor to the prerogatives of the royal crown of the same, or any of them, shall be occupied, exercised, and put in ure for the time within this realm" (35 Henry VIII. c. 16, 25 c. 19, 27 c. 8). _ The work was actually undertaken and finished in the reign of Edward VI. by a sub-committee of eight persons, under the name of the Reformatio Legum Ecclesiasticarum, which, however, never obtained the royal assent. Although the powers of the 25 Henry VIII. c. 1, were revived by the 1 Elizabeth c. 1, the scheme was never executed, and the ecclesiastical laws remained on the footing assigned to them in that statute,—so much of the old ecclesiastical laws might be used as had been actually in use and was not repugnant to the laws of the realm.

The statement is, indeed, made by Sir R. Phillimore that the "Church of England has at all times, before and since the Reformation, claimed the right of an independent church in an independent kingdom, to be governed by the laws which she has deemed it expedient to adopt." This position can only be accepted if it is confined, as the authorities cited for it are confined, to the resistance of interference from abroad. If it mean that the church, as distinguished from the kingdom, has claimed to be governed by laws of her own making, all that can be said is that the claim has been singularly unsuccessful. From the time of the Reformation no change has been made in the law of the church which has not been made by the king and par-liament, sometimes indirectly, as by confirming the resolu-tions of Convocation, but for the most part by statute. The list of statutes cited in Sir R. Phillimore's Ecclesiastical Law fills eleven pages. It is only by a kind of legal fiction that the church can be said to have deemed it expedient to adopt these laws.





The terms on which the Church Establishment of Ireland was abolished by 32 and 33 Vict. c. 42 may be mentioned. By sect. 20 the present ecclesiastical law is made binding
on the members for the time being of the church, " as if they had mutually contracted and agreed to abide by and observe the same;" and by section 21 it is enacted that the ecclesiastical courts shall cease after 1st January 1871, and that the ecclesiastical laws of Ireland, except so far as relates to matrimonial causes and matters, shall cease to exist as law. (E. E.)



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