Canon Law in England and in the Anglican Communion.—There were matters in which the local English and Irish canon law, even before the 16th century, differed from that obtaining on the western part of the European continent. Thus (1), it has been said that—whereas the continental canon law recognized a quadripartite division of Church revenue of common right between (a) the bishop, (b) the clergy, (c) the poor, (d) the fabric—the English law maintained a tripartite division—(a) clergy, (b) the poor, (c) the fabric. Lord Selborne (Ancient Facts and Fictions concerning Churches and Tithes, 2nd ed., 1892) denies that there was any division of tithe in England. (2) By the general canon law the burden of repairing the nave, as well as the chancel of the church, was upon the parson or rector who collected the whole tithe. But the custom of England transferred this burden to the parishioners, and some particular local customs (as in the city of London) placed even the burden of repair of the chancel on them. To meet this burden church rates were levied. (3) A church polluted by the shedding of blood, as by suicide or murder, was reconsecrated on the continent. In England the custom was (and is) simply to “reconcile.” (4) A much more important difference, if the decision of the Irish court of exchequer chamber upheld in the House of Lords, where the peers were equally divided, correctly stated the English Canon law (Reg. v. Millis, 10 Cl. & Fin., 534) was in regard to the essentials of marriage. By the general Western canon law before the council of Trent, the parties themselves were said to be the “ministers of the Sacrament” in the case of holy matrimony. The declared consent of the parties to take each other there and then constituted at once (although irregularly) holy matrimony. The presence of priest or witnesses was not necessary. In Reg. v. Millis, however, it was held that in England it was always otherwise and that here the presence of a priest was necessary. High authorities, however, have doubted the historical accuracy of this decision. (5) The addition of houses of priests to the provincial synods seems peculiar to England and Ireland.
The historical position of the general canon law of the Catholic Church in the English provinces has, since the separation from Rome, been the subject of much consideration by English lawyers and ecclesiastics. The view taken by the king’s courts, and acquiesced in by the ecclesiastical courts, since Henry VIII., is that the Church of England was always an independent national church, subject indeed to the general principles of the jus commune ecclesiasticum (Whitlock J. in Ever v. Owen, Godbolt’s Reports, 432), but unbound by any particular constitutions of council or pope; unless those constitutions had been “received” here by English councils, or so recognized by English courts (secular or spiritual) as to become part of the ecclesiastical custom of the realm. Foreign canon law never bound (so it has been taught) proprio vigore.
The sources of English ecclesiastical law (purely ecclesiastical) were therefore (1) the principles of the jus commune ecclesiasticum; (2) foreign particular constitutions received here, as just explained; (3) the constitutions and canons of English synods (cf. Phill. Ecc. Law, part i. ch. iv., and authorities there cited).
1. On the existence of this jus commune ecclesiasticum and that the Church of England, in whatever sense independent, takes it over until she repeals it, see Escott v. Mastin, 4 Moo. P.C.C. 119. Lord Brougham, in delivering the judgment, speaks of the “common law prevailing for 1400 years over Christian Europe,” and (p. 137) says that “nothing but express enactment can abrogate the common law of all Christendom before the Reformation of the Anglican Church.”
2. As to foreign particular constitutions in England, there are a great number of them, of which it has been and is admitted, that they have currency in England. However papal in their origin, post-Reformation lawyers have regarded them as valid, unless they can be shown to be contrary to the king’s prerogative, or to the common or statute law of the realm. To this doctrine express statutory authority (as the events have happened) has been given by 25 Hen. VIII. c. 19, sect. 7. A striking example of the doctrine is furnished by the decree of Innocent III. in the Fourth Lateran Council against pluralities. This decree was enforced in the court of Arches against a pluralist clerk in 1848 (Burder v. Mavor, I Roberts, 614). The courts of common law from Lord Coke’s time downwards have recognized this “constitution of the pope” (as the queen’s bench called it in 1598). The exchequer chamber, in 1837, declared it to have “become part of the common law of the land” (Alstan v. Atlay, 7 A. and E. 289).
3. The particular constitutions of English synods are numerous and cover a large field. At least in legal theory, the only distinction between pre-Reformation and post-Reformation constitutions is in favour of the former—so long as they do not contravene the royal prerogative or the law of the land (see 25 Hen. VIII. c. 19). The most important are collected together and digested (so far as regards England) in Lyndwood’s Provinciale, a work which remains of great authority in English courts. These constitutions are again divided into two classes: (a) provincial constitutions promulgated by provincial synods, usually in the name of the presiding archbishop or bishop; and (b) decrees of papal legates, Otho in 1236 and Othobon (Ottobuono de’ Fieschi, afterwards Pope Adrian V.) in 1269. Canons passed since 25 Hen. VIII. c. 19 have not the parliamentary confirmation which that act has been held to give to previous canons, and do not necessarily bind the laity, although made under the king’s licence and ratified by him. This doctrine laid down by Lord Hardwicke in Middleton v. Croft (2 Stra. 1056) was approved in 1860 in Marshall v. Bp. of Exeter (L.R. 3 H.L. 17). Nevertheless, there are many provisions in these post-Reformation canons which are declaratory of the ancient usage and law of the Church, and the law which they thus record is binding on the laity. The chief body of English post-Reformation canon law is to be found in the canons of 1603, amended in 1865 and 1888. The canons of 1640 are apparently upon the same footing as those of 1603; notwithstanding objections made at the time that they were void because convocation continued to sit after the dissolution of parliament. The opinion of all the judges taken at the time was in favour of the legality of this procedure. 13 Car. ii. c. 12 simply provided that these canons should not be given statutory force by the operation of that act.
In addition to the enactment of canons (strictly so-called) the English provincial synods since the Henrician changes have