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Ecclesiastical law

Tag: The Meaning of Ecclesiastical Law

Ecclesiastical Law and Disestablishment

The Welsh Church Act 1914, which provided for the disestablishment of the Church in Wales, was discussed by the House of Lords in the case of Representative Body of the Church in Wales v Tithe Redemption Commission (1944) 1 All England Reports 710, in which they overruled the decision of the Court of Appeal in Tithe Redemption Commissioners v Commissioners of Church Temporalities (1943) 1 All England Reports 605.

Interestingly, the law lords who decided the Tithe Redemption case were headed by the then Lord Chancellor, Viscount Simon, who, as the Liberal Attorney-General Sir John Simon, had successfully promoted the bill which became the Welsh Church Act.

The Tithe Redemption case prompted Lord Denning to formulate his famous thesis on the division of ecclesiastical law into ‘general’ and ‘technical’ law in an article ‘The Meaning of Ecclesiastical Law’ (1944) Law Quarterly Review, vol 60, p.235.  This article has been discussed elsewhere.  Lord Denning defined ‘technical’ ecclesiastical law as ‘the law administered by ecclesiastical courts and persons’ (p.236), though his analysis concentrated rather more on the courts than the persons.

As Lord Denning noted, the Welsh Church Act does not contain any definition of ecclesiastical law.  Nor did the Irish Church Act 1869, which effected the disestablishment of the Church of Ireland and provided the model for the Welsh Church Act.

Despite the lack of a definition, Lord Denning argued that the structure of the Welsh Church Act supported his suggested distinction between technical and general ecclesiastical law.  He noted that the Act makes specific provision for certain matters ‘which would fall within ecclesiastical law in a general sense … such as rights of patronage, vesting of Church property and so forth’ (p.236).  Where specific provision is lacking, any ‘ecclesiastical  law’ referred to in the Act must be restricted to that administered by ecclesiastical courts and persons.

S.3 of the 1914 Act refers to ecclesiastical law in the following terms:

‘ecclesiastical courts and persons … shall cease to exercise any jurisdiction, and the ecclesiastical law of the Church in Wales shall cease to exist as law’ (s.3(1))

‘ecclesiastical law shall include … such law so far as it is embodied in the Church Discipline Act 1840, the Public Worship Regulation Act 1874, the Clergy Discipline Act 1892 or the Ecclesiastical Dilapidations Acts 1871-2, or any other Act of Parliament’ (s.3(4))

S.38(1) of the Act defines ‘ecclesiastical person’ as ‘the holder of any ecclesiastical office who is in holy orders’.

It must be acknowledged that s.3, considered in isolation, does tend to support Lord Denning’s analysis.  It seems to identify ecclesiastical law with clergy and Church courts.  The Acts of Parliament referred to in s.3(4), which have now all been repealed, regulated the functions of the clergy.

However, it is argued s.3 has to be understood in the context of the Welsh Church Act as a whole.  The long title of the Act makes clear that the purpose of the Act was

[1] ‘to terminate the establishment of the Church in Wales … and

[2] ‘to make provision in respect of the Temporalities thereof and …

[3] ‘other purposes in connection with [1 and 2]‘.

S.1 of the Act provides that ‘the Church in Wales … shall cease to be established by law’.  ‘Established by law’ means ‘constituted by law’.  ‘Temporalities’ refers to property and property rights.

The Welsh Church Act therefore had a twofold purpose

(1) to reconstitute the Church in Wales on a voluntary basis and

(2) to dispose of its property.

The references to ‘ecclesiastical law’ in s.3 of the 1914 Act should therefore be understood in the context of the Church’s establishment.  The ‘establishment’ of the Church is its constitutional structure, its organisation.  The law of the Church regulates its function.  The function of the Church in Wales, as of any Church, is the administration of the Christian religion.  Ecclesiastical law regulates the administration of the Christian religion.

Thus the 1914 Act reconstituted both the Church’s

(1) structure / organisation and

(2) its function

on a voluntary basis.  Henceforward the members of the Church in Wales would decide its organisation and function on the basis of rules agreed between themselves, though subject to the secular law.

Thus the 1914 Act made a distinction between the Church’s religion and its property, not between its ‘general’ and ‘technical’ law.  It is rather absurd to divide the administration of the Christian religion into ‘general’ and ‘technical’ aspects.

It may indeed be difficult, even impossible, to define the exact boundaries of ecclesiastical law.  Where does the administration of religion end and secular governance begin? 

The House of Lords specifically declined to answer this question in the Tithe Redemption case.  ‘It is not … necessary to pronounce finally on these niceties’ (Viscount Simon, p. 713).  ‘I am not clear as to the precise effect of the very general words of s.3′ (Lord Wright, p.717).  ‘I do not desire to dogmatise as to the effect of s.3′ (Lord Porter, p.718).  ‘I do not think it necessary to determine the exact scope of that ‘ecclesiastical law’ … which by s.3 … is to cease to exist as law’ (Lord Simonds, p.720).

The scope of ecclesiastical governance was sharply reduced in the mid-19th century, before the Irish Church Act and the Welsh Church Act were passed.  By 1914 it was almost exclusively liturgical, restricted to activity within the church and churchyard.  However, ecclesiastical governance continued to engage rights of property.  (It still does, of course.)  The function of the 1914 Act was therefore to regulate the future relationship between ecclesiastical governance and property.

As its name implies the Tithe Redemption case was concerned with tithes (or tithe rentcharge, which was derived from tithes).  Tithes were connected to the administration of religion, hence to ecclesiastical governance, because they were used to pay for the maintenance of the Church.  A tithe owner was liable at common law to repair the chancel of the parish church.

But, as Lord Wright noted, tithe or tithe rentcharge is ‘an incorporeal hereditament … a well-known type of real property’ (p.717).  Ownership of tithe rentcharge and the liability to pay it are questions of property law, rather than ecclesiastical law.

The Welsh Church Act provided, at s.8, that tithe rentcharge in ecclesiastical ownership should in effect be secularised.  Ownership was to be transferred from the Church to the Welsh local authorities and to the University of Wales.

However, s.28(1) provided that

‘Nothing in this Act shall affect … the liability of any lay impropriator of any tithe rentcharge to repair any ecclesiastical building [i.e the chancel], but a [local authority] shall not … be liable for the repair of any ecclesiastical building’.

Thus s.28(1) expressly exempted the local authority tithe rentcharge from the liability to repair the chancel.  However, no such exemption was granted to the University, or to any other lay owner (‘impropriator’) of tithe rentcharge.

The Court of Appeal reasoned that chancel repair was a duty imposed by ecclesiastical law, and hence was governed by s.3 of the 1914 Act.  This meant that the duty had ceased to be a legal duty where the tithe rentcharge was in ecclesiastical ownership, because ecclesiastical law had ceased to exist as law after Disestablishment.

The University had inherited tithe rentcharge that was formerly in ecclesiastical ownership, at Disestablishment.  It could not therefore be liable for chancel repair.  The legal duty to repair the chancel could only attach to tithe rentcharge that had been in lay ownership before Disestablishment.

The House of Lords disagreed with this analysis.  It held that the question of chancel repair liability was governed by s.28(1), not by s.3.  The University was a ‘lay impropriator’ within the meaning of s.28(1), and therefore liable for chancel repair.  The exemption granted to local authorities did not extend to the University.  If chancel repair had ceased to be a legal duty after Disestablishment, the exemption in s.28(1) would not have been necessary.

Tithe rentcharge was actually abolished, or ‘extinguished’, by the Tithe Act 1936, passed over 20 years after the Welsh Church Act.  In consequence, the liability of owners of tithe rentcharge for chancel repair was also abolished.  The 1936 Act provided for a system of compensation.  Former lay owners of tithe rentcharge received compensation for the loss of their ‘incorporeal hereditament’.  However, the Church also received compensation, because it had lost a legally enforceable right to the repair of its chancels.

Thus the practical effect of the decision in the Tithe Redemption case was that the Church in Wales, through its Representative Body, received compensation under the Tithe Act 1936, because it had lost the legal right to require the University of Wales to repair some of its chancels.

Ecclesiastical Law Ancient and Modern

Historical Development

It is surprising that the best short description of English ecclesiastical law should come from Strasbourg.  Amid all the confusion of English courts and lawyers on the subject, this dictum of a foreign tribunal may be commended for its clarity, simplicity and accuracy:

‘The ecclesiastical law of England is as much the law of the land as any other part of the law.  It is grounded in both common and statute law, and is altered from time to time by statute or by Measure, a form of legislation initiated by the Church of England but requiring Parliamentary approval’.

(Tyler v UK (1994) European Commission on Human Rights, Determination 21283/93, text published in Mark Hill, Ecclesiastical Law 2nd edition 2001, OUP, p.677).

Since the Reformation, ecclesiastical law, the law of the Church of England, has come from four institutional sources:

(1) the secular courts

(2) Doctors’ Commons (the ecclesiastical courts)

(3) the Convocations / General Synod and

(4) Parliament

As a result of the Ecclesiastical Offices (Terms of Service) Measure 2009, we must now add a fifth institutional source of ecclesiastical law

(5) the Archbishops’ Council (for Terms of Service Regulations).

History shows us how sources (1) to (4) have changed over time.  From 1662 until the 19th century, sources (1) and (2) predominated.  The Convocations were of marginal importance.  However, this situation changed radically from the mid-19th century.  With the closure of Doctors’ Commons, it is the courts which have now been marginalised as sources of ecclesiastical law.  Sources (3) and (4), by contrast, have broadened enormously.

As a result of the Church of Assembly (Powers) Act 1919 and the Synodical Government Measure 1969, sources (3) and (4) have largely, but not completely, merged.  It is in this context that we should formulate our definition of ecclesiastical law.

Professor Norman Doe draws a distinction between ‘internal church-made law and external state-made law’ (The Legal Framework of the Church of England (1996)  Clarendon Press, Oxford, p.32).  Mark Hill introduces a further distinction between ‘[ecclesiastical] laws … some imposed by the state, some made by the Church with the concurrence of the state, and others created internally by the Church’ (Ecclesiastical Law 2nd edition (1995), pp.1-2).

It is true that ecclesiastical law is now found mostly in Measures and Canons, and that these legislative instruments are ‘internal’ to the extent that they are the work of ecclesiastical bodies.  However, too much may be made of this internal / external distinction.  Both ‘internal’ and ‘external’ laws pertain to the same function, which is the administration of the Christian religion.

Thus the Marriage Act 1949 and the Chancel Repair Act 1932 were made by Parliament, not by the Church, even though passed many years after the 1919 Act.  These Acts are concerned to regulate church marriage and the repair of places of worship, both of which are ecclesiastical subjects.

In a sense, ecclesiastical law is exactly the same today as it was in the early modern period.  The Church of England remains part of the state.  Its function is the administration of the Christian religion, by Word and Sacrament.  Ecclesiastical law regulates this function.  It is therefore the counterpart of secular constitutional and administrative law.

What has changed, of course, is the attitude of the state towards religion.  This change explains the decline of the ecclesiastical courts and the rise of modern synodical government.

Function and Purpose

The original purpose of ecclesiastical law was best explained in Cawdrey’s Case (1591) 77 English Reports 1:

‘The ecclesiastical law and the temporal law have several proceedings and to several ends: the one being temporal, to inflict punishment upon body, lands or goods: the other being spiritual pro salute animae … to reform the inward [man].  [Thus] both … jurisdictions … do join in this: to have the whole man inwardly and outwardly reformed’ (p.7).

This dictum makes clear the original, presecular basis of ecclesiastical law: the theocratic assumption that the state had a responsibility for the souls of its subjects, not merely for their persons and property.  People were just as much subject to the English law regulating the salvation of their souls as to the law regulating their property. 

Though not the same as canon law, the ecclesiastical law of the presecular era shared the same overriding object as canon law, salus animarum suprema lex, the salvation of souls is the supreme law.

The Court of the Arches confirmed in the case of Breeks v Woolfrey (1838) 163 English Reports 304 that ‘touching and concerning [the] soul’s health … is the usual style and language of the proceedings of the [ecclesiastical] court’ (p.307). 

Thus the ecclesiastical law discussed by Lord Denning in his famous article ‘The Meaning of Ecclesiastical Law’ (1944) 60 Law Quarterly Review 235, and defined by him as ‘technical ecclesiastical law’ might be more aptly described as the law of the soul.  The ‘remedies’ imposed by the ecclesiastical courts were directed towards the salvation of the subject’s soul.

This explains why Lord Denning’s discussion of ecclesiastical law is so anachronistic.  Needless to say, the modern state does not accept any responsibility for the salvation of souls.  Modern criminal jurisdiction may seek to reform or rehabilitate an offender, but only in relation to society, not to save his immortal soul.  As the Court of the Arches drily observed in the case of Phillimore v Machon (1876) 1 Probate Division 481,

‘the punishment of the laity for the good of their souls by the ecclesiastical courts would not be in harmony with modern ideas’ (p.487).

The state is now concerned to regulate the relations of its subjects inter se, but not the relationship of the subject to God.  The subject’s relationship with God is regarded as a private, voluntary matter only.  For the state to regulate such a relationship is seen as a grave infringement of the subject’s ‘human rights’.

This, of course, does not allow much scope for an ecclesiastical law whose whole raison d’etre was to regulate the subject’s relationship to God.  The secularisation of state and society in the 19th century was the essential reason for the closure of Doctors’ Commons.

Secularisation notwithstanding, the Church of England remains the ecclesiastical state, constituted by law.  Lord Justice Phillimore suggested in Marshall v Graham (1907) 2 King’s Bench 112 that

‘Establishment means that the state has accepted the Church as the religious body in its opinion truly teaching the Christian faith’. 

It may be hard to see much evidence of acceptance of the Christian faith by the modern secular state.  However,  historical traces of the secular state’s acceptance of the truth of the Church of England’s doctrine are still visible in two well-known aspects of the secular constitution, the right of bishops to sit in the House of Lords, and the Protestant settlement of the Crown.

It is also true that the state continues to administer the Christian religion through the Church of England, its ecclesiastical branch.  Through this administration, the state continues to offer the Christian religion to its subjects.  The subject is, of course, free to accept or reject the Christian religion thus administered.

However, the secularisation of the state has altered the character of ecclesiastical law.   Ecclesiastical law continues to regulate the administration of the Christian religion, the process by which Christianity is offered to subjects.  However, it no longer assumes a responsibility for the soul.  The salvation of souls is no longer the supreme ecclesiastical law, or indeed any part of the ecclesiastical law. 

Does this mean that ecclesiastical law itself has lost its soul?  The Court of the Arches was, of course, correct to hold in Phillimore v Machon that ecclesiastical discipline of the laity is not realistic in the modern secular age.  Nevertheless, a difficulty remains.  The ecclesiastical law that emerged from the ruins of the old theocracy has the same function as before, but it no longer has any defined object or purpose.  It still explains how the Christian religion is administered, but no longer why it is administered.  The administration of the Christian religion becomes an end in itself, not a means to an end.

Lords Blackburn and Denning on Ecclesiastical Law

In the case of Mackonochie v Penzance (1881) 6 Appeal Cases 424, Lord Blackburn defined ecclesiastical law as ‘such canons and constitutions ecclesiastical as have been allowed by general consent and custom within the realm’ (p.446).

Lord Blackburn also sought to identify the sources of ecclesiastical law:

‘When the question arises what is the English ecclesiastical law … great weight should be given to the principles of the ecclesiastical law, laid down by those ancient writers on the ecclesiastical law of England whose treatises have been accepted by … the Ecclesiastical courts as of authority … [and] to the practice of the Courts Ecclesiastical … But most weight of all is … to be attributed to judicial decisions’ (p.447).

These dicta suggest that ecclesiastical law is those elements of the mediaeval canon and civil law recognised and administered by the Church courts. 

Such a definition may have been a trifle anachronistic, even for the early 1880s.  One would never know from reading Mackonochie v Penzance that Doctors’ Commons had been closed down about 20 years earlier and ecclesiastical jurisdiction all but abolished.  It is true, however, that the case concerned disciplinary proceedings against a clergyman (the Rev Mackonochie).  Clergy discipline was one matter over which the ecclesiastical courts retained jurisdiction after the mid-19th century reforms.  

Lord Denning expanded on Lord Blackburn’s definition in ‘The Meaning of Ecclesiastical Law’ (1944) 60 Law Quarterly Review 235.  He proposed two meanings of ecclesiastical law

(1) its general sense and

(2) its technical sense.

In its general sense, ecclesiastical law is the law relating to any matter concerning the Church of England.  In its technical sense, ecclesiastical law is ‘the law administered by ecclesiastical courts and persons, in the same way that ‘equity’ in a technical sense meant the law administered by the Courts of Chancery’ (p.236).

‘Technical’ ecclesiastical law may be distinguished by the remedies awarded by the ecclesiastical courts, whether to clergy or laity:

(1) monition

(2) penance

(3) suspension ab ingressu ecclesiae and

(4) excommunication. 

Technical ecclesiastical law can also be defined by reference to its rights and obligations.  This definition is not easy, because it becomes necessary to distinguish the law exclusively declared by the ecclesiastical courts from that declared by the secular courts. 

On Lord Denning’s analysis, law declared by the secular courts is not ecclesiastical law in its technical sense, only in its general sense.  Law exclusively declared by the ecclesiastical courts concerns

(1) clergy discipline

(2) faculties and

(3) marriage licences.

However, Lord Denning also identified certain matters where the law is enforced both by the ecclesiastical and the secular courts:

(1) the consecration of land

(2) sequestration of ecclesiastical property

(3) the incumbent’s obligation to repair his parsonage, and to reside in it

(4) damage to property in churches and churchyards and

(5) the obligation to repair the parish church.

The difficulty with Lord Denning’s analysis of ecclesiastical law is that it is highly anachronistic, and was so even at the time he wrote it.  He expands Lord Blackburn’s definition very learnedly, but without making any attempt to update it.   

Thus Lord Denning’s account of ‘technical’ ecclesiastical law has nothing to say about the Church Assembly / General Synod, the Convocations, the Ecclesiastical / Church Commissioners or the other institutions that have governed the Church since 1919.  Nor even does it include the canons of 1603.  The definition of ecclesiastical law is restricted to the Church courts, but the canons were promulged by the Convocations.

Lord Denning’s reference to the ‘remedies’ of the ecclesiastical courts may require clarification.  In secular law a remedy is an award (usually damages) made to compensate the victim of a wrongful act.  In the ecclesiastical courts, remedies were intended to reform the offender pro salute animae, so as to secure the salvation of his soul, not to compensate his victim.  They were ‘medicinal’ in character.

Ecclesiastical courts can no longer order penance or exclusion from the parish church.  If a person is to be excluded from church an injunction from the secular court will be required.  Monition (now described as injunction in the Clergy Discipline Measure 2003) and ‘excommunication’, in the sense of exclusion from holy communion, are both still available to the Church but are exercised with extreme infrequency.

Some of the hybrid ecclesiastical-secular jurisdictions identified by Lord Denning are also anachronistic.  The designation of a public place of worship as such now depends on the authority of a statutory scheme, not consecration, albeit that consecration is a preliminary to the making of the scheme.  The obligation to repair the parish church is now enforceable only against a lay rector, and, under the Chancel Repair Act 1932, proceedings may only be brought in the secular court.  The management of parsonages and glebe is an administrative rather than a judicial matter and is dealt with by diocesan ‘boards’, not by Church courts.

If the definition of ecclesiastical law is limited to the work of the ecclesiastical courts, it will exclude the vast mass of law concerning the Church, including all the most important law.  The ecclesiastical authority of the Monarch and Parliament is a doctrine of statute and common law, to which the ecclesiastical courts contributed little.  The law regulating the Church’s central activity of worship has always been regulated by statute since the Reformation (the Acts of Uniformity and now the Worship and Doctrine Measure 1974).  Even when the ecclesiastical courts were called upon to decide questions of worship and doctrine, their decisions were still subject to the overriding jurisdiction of the Privy Council, a secular tribunal.

Although the law concerning pew rights and sittings in church was mostly decided by the ecclesiastical courts, the law concerning proprietary rights over the parish church and churchyard was developed by the secular courts: see for example Griffin v Dighton (1864) 122 English Reports 767, Greenslade v Darby (1868) 37 Law Journal 137.

On the other hand, Lord Denning’s ‘general’ definition of ecclesiastical law (‘the law relating to any matter concerning the Church of England’) is too broad to be of much help.

Lord Denning’s analysis of ecclesiastical law was followed in Attorney-General v Dean and Chapter of Ripon (1945) 1 Chancery 239, a case that was decided just after he wrote his article.  The court slightly expanded Lord Denning’s definition, by suggesting that a Church Measure could also constitute ‘technical’ ecclesiastical law. 

Later courts and commentators have not followed the Blackburn-Denning definition of ecclesiastical law.  It is too narrow and anachronistic.  However, there has been little success in formulating an alternative definition.

In Wallbank v Aston Cantlow Parochial Church Council (2002) Chancery 51, the best description of ecclesiastical law that the Court of Appeal could offer was ‘a portmanteau term which embraces not only the canon law but both secular legislation and common law relating to the Church’ (para 8).

Mark Hill offers a very ‘general’ definition of ecclesiastical law as ‘the law of the Church of England, howsoever created’, which includes ‘laws, rules and norms, some imposed by the state, some made by the Church with the concurrence of the state, and others created internally by the Church’ (Ecclesiastical Law 2nd edition 2001, OUP, pp.1-2).

Norman Doe argued that ‘the terms ‘canon law’ and ‘ecclesiastical law’ ought [both] to be discarded in favour of the title ‘church law’, to include both internal church-made law and external state-made law’ (The Legal Framework of the Church of England, Clarendon, Oxford, 1996, p.32).  However, he apparently changed his mind about this, as his next book was entitled The Canon Law of the Anglican Communion (1998).

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