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202
CANON LAW

legislated—in 1570 by the enactment of the Thirty-Nine Articles, in 1661 by approving the present Book of Common Prayer, and in 1873 by approving shorter forms of matins and evensong.

The distinction between pre-Henrician and post-Henrician procedure lies in the requirement, since 25 Hen. VIII., of the royal licence and confirmation. Apparently diocesan synods may still enact valid canons without the king’s authority; but these bodies are not now called.

The prevailing legal view of the position of the Church of England in regard to canon law has been just stated, and that is the view taken by judicial authority for the past three centuries. On the other hand, it is suggested by, e.g., the late Professor Maitland, that it was not, in fact, the view taken here in the later middle ages—that in those ages there was no theory that “reception” here was necessary to validate papal decrees. It is said by this school of legal historians that, from the Conquest down to Henry VIII., the Church of England was regarded by churchmen not as in any sense as separate entity, but as two provinces of the extra-territorial, super-national Catholic Church, and that the pope at this period was contemplated as the princeps of this Catholic Church, whose edicts bound everywhere, as those of Augustus had bound in the Roman empire.

It is right that this view should be stated, but it is not that of the writer of this article.

As to Ireland, in a national synod of the four Irish provinces held at Dublin before the four archbishops, in 1634, a hundred canons were promulgated with the royal licence, containing much matter not dealt with by similar constitutions in England. In 1711, some further canons were promulgated (with royal licence) by another national synod. Some forms of special prayer were appended to these canons.

In 1869 the Irish Church Act (32 and 33 Vict. c. 42) “disestablished” the Irish Church, sect. 19 repealed any act of parliament, law or custom whereby the bishops, clergy or laity of the said church were prohibited from holding synods or electing representatives thereto for the purpose of making rules for the well-being and ordering of the said church, and enacted that no such law, &c., should hinder the said bishops, clergy and laity, by such representatives, lay and clerical, and so elected as they shall appoint, from meeting in general synod or convention and in such general synod or convention forming constitutions and providing for future representation of the members of the church in diocesan synods, general convention or otherwise. The Church of Ireland, so set free, created for herself new legislative authorities, unknown to the old canon law, viz. mixed synods of clergy and laity, and a system of representation by election, unknown to primitive or medieval times. Similar changes had, however, been introduced during the preceding century in some parts of the Anglican communion outside the British Isles (see infra). Sect. 20 of the same statute kept alive the old ecclesiastical law of Ireland by way of assumed contract (cf. Ecclesiastical Jurisdiction).

Under the provisions of this statute, the “archbishops and bishops of the ancient Apostolic and Catholic Church of Ireland” (so they describe themselves), together with representatives of the clergy and laity, assembled in 1870, in “General Convention,” to “provide for the regulation” of that church. This Convention declared that a General Synod of the archbishops and bishops, with representatives of the clergy and laity, should have chief legislative power in the Irish Church, with such administrative power as might be necessary and consistent with the church’s episcopal constitution. This General Synod was to consist of two Houses—the House of Bishops and the House of Lay and Clerical Representatives. No question was to be carried unless there were in its favour a majority of the clerical and lay representatives, voting either conjointly or by orders, and also a majority of the bishops, should they desire to vote. This General Synod was given full power to alter or amend canons, or to repeal them, or to enact new ones. For any alteration or amendment of “articles, doctrines, rites or rubrics,” a two-thirds majority of each order of the representative house was required and a year’s delay for consultation of the diocesan synods. Provisions were made as to lay representation in the diocesan synods. The Convention also enacted some canons and a statute in regard to ecclesiastical tribunals (see Ecclesiastical Jurisdiction). It expressly provided that its own legislation might be repealed or amended by future general synods.

In 1871 the General Synod attempted to codify its canon law in forty-eight canons which, “and none other,” were to have force and effect as the canons of the Church of Ireland. Since 1871 the General Synod has, from time to time, put forth other canons.

The post-Reformation history of canon law in the Anglican communion in Scotland has differed from the story of that law in the last four centuries in Ireland. After the legislation under William and Mary disestablishing episcopacy in Scotland and subjecting its professors to civil penalties, little attention was given to canon law for many years. Synods of bishops at Edinburgh in 1724 and 1731 dealt with some disputed questions of ritual and ceremonial. In 1743 an assembly of five bishops enacted sixteen canons. A “primus” was to be chosen indifferently from the bishops, but to have no other powers than those of convoking and presiding over synods. He was to hold office only during pleasure of the other bishops. Bishops were to be elected by the presbyters of the district. Such election was subject to the confirmation of the majority of the bishops. In 1811, a “Code of Canons” was enacted by a “General Ecclesiastical Synod,” consisting of the bishops, the deans (viz. presbyters appointed by the bishops in each diocese to defend the interests of the presbyters and now for the first time given “decisive” voice in synods) and certain clerical representatives from the “districts” or dioceses. Future synods, called for the purpose of altering the code, were to consist of two chambers. The first was to be composed of the bishops; the second to consist of the “deans” and clerical representatives. No law or canon was to be enacted or abrogated, save by the consent of both chambers. These canons were revised in 1828, 1829 and 1838. The code of this last year created diocesan synods, to be held annually and to consist of the bishop, dean and all instituted clergy of the diocese. It also provided for the annual meeting of a purely episcopal synod, which was to receive appeals from either clergy or laity. In 1862–1863, another General Synod further revised and amended the Code of Canons. This revised code enabled the bishop to appoint a learned and discreet layman to act as his chancellor, to advise him in legal matters and be his assessor at diocesan synods. Assistant curates and mission priests were, under certain restrictions, given seats in diocesan synods. Male communicants were also permitted to be present at such synods, with a deliberative but not “decisive” voice; unless in special circumstances the bishop excluded them. Canon 46 provides that “if any question shall arise as to the interpretation of this Code of Canons or of any part thereof, the general principles of canon law shall be alone deemed applicable thereto.” This provision was reenacted in Canon 47 of 1876. Canon 51 of 1890, however, weakens this provision. It enacts that: “The preceding canons shall in all cases be construed in accordance with the principles of the civil law of Scotland. Nevertheless, it shall be lawful, in cases of dispute or difficulty concerning the interpretation of these canons, to appeal to any generally recognized principles of canon law.” The canons of 1862–1863 also provided for a lay share in the election of bishops. In 1890 the 32nd canon enacted that the “General Synod” should thereafter be called the Provincial Synod.

The canon law in Scotland before the 16th century was generally that of the continent of Europe. The usages of the church were similar to those in France, and had not the insular character of those in England and Ireland. The canon law regulating marriage, legitimacy and succession was taken over by the Scottish secular courts (see Ecclesiastical Jurisdiction) and survived as part of the common law of the land almost unimpaired.

Thus, the courts recognize marriages by verba de