English Ecclesiastical Law is NOT Canon Law
by Philip Jones
The Constitutional Doctrine
There is no doubt of the great influence of mediaeval pan-European canon law on English common law. However, English common law is clear that canon law was not, proprio vigore, part of English law. As Lord Chief Justice Sir Matthew Hale said:
‘the authority and force they [the civil and canon laws] have here is not founded on, or derived from, themselves … they bind no more with us than our laws bind in Rome or Italy … all the strength that either the papal or imperial laws have obtained in this kingdom, is only because they … are part of the statute laws of the kingdom or else by immemorial usage and custom in some particular cases and courts, and no otherwise’ (History and Analysis of the Common Law of England 1713, pp.28-29).
Thus mediaeval canon law is part of English law only to the extent that it is incorporated into English law. It may be incorporated in one of two ways:
(1) expressly, by being codified as statute law or
(2) implicitly, by the sanction of ‘immemorial usage and custom’ (p.28).
Any rule of mediaeval canon law that is not incorporated into English law by one of these two ways cannot be part of English law.
Hale’s analysis is confirmed by case law. Cawdrey’s Case (1591) 77 English Reports 1 explains that ‘Albeit the Kings of England derived their ecclesiastical laws from others [i.e Catholic Europe], yet so many as were … approved and allowed here, by … a general consent, are … rightly called the King’s ecclesiastical laws’ (p.11).
In R v Millis (1844) 8 English Reports 641, the House of Lords explained that
‘The law by which the spiritual courts of this Kingdom have … been governed … is not the general canon law of Europe … but, instead thereof, an ecclesiastical law, of which the general canon law is no doubt the basis, but which has been modified and altered … by the ecclesiastical constitutions of our Archbishops and bishops and by [Parliament] and … has been known … by the distinguishing title of the King’s ecclesiastical law. The canon law of Europe does not, and never did, as a body of laws, form part of the law of England’ (p.898, emphasis supplied).
In Reichel v Bishop of Oxford (1889) 14 Appeal Cases 259, the Rev Mr Reichel delivered a deed of resignation to his bishop, then changed his mind and attempted unsuccessfully to withdraw it. In challenging the validity of his own resignation, he apparently ‘relied much on foreign canonists’, and referred to proceedings in the papal chancery (pp.265-6).
However, the House of Lords reaffirmed the position that European canon law per se was not part of English law. Whatever their validity in the papal courts, the canonical rules cited by Mr Reichel had not been incorporated into English law.
The question of the incorporation of canon law into ecclesiastical law was discussed in depth in Read v Bishop of Lincoln (1889) 14 Probate Division 88. The Bishop was accused of certain ritualistic offences. The Archbishop of Canterbury summoned him to answer the accusations. The Bishop disputed the Archbishop’s jurisdiction to discipline him. At that time the discipline of bishops (as distinct from lesser clergy) was not regulated by statute.
In support of his objection, the Bishop cited certain canons of the Council of Chalcedon of 451, and of synods of the late Roman Empire, which supposedly asserted that a bishop could be tried only by the whole episcopate of the province, and not by the Archbishop alone.
The Archbishop dismissed the Bishop’s objection. The Privy Council affirmed the Archbishop’s decision. The ancient canons cited by the Bishop had never been received into English law. Nor had they even been received by the Western Church, but only by the Greek Church. Nor, on their wording, did the canons state that bishops could be tried only by their provincial synods. They merely assumed that the trial of a bishop was ‘a usual and obvious function of synods’ (p.108).
Furthermore there was a distinction between doctrine and discipline. The Council of Chalcedon and other councils and synods of the early Church took decisions both on questions of religious doctrine and on questions of discipline and practice.
The Archbishop observed that ‘[Their] definitions of doctrine are our rule … But the canons of order and discipline passed in those same councils … are on another footing’ (p.109).
This case, which presaged the more famous ‘Lincoln Judgment’, helpfully illustrates the Church of England’s relationship with the pre-Reformation ecumenical councils. The doctrine of the early councils is accepted in England, but their discipline is not. By contrast, much of the discipline of the mediaeval councils is accepted in England, but their doctrine is not.
It is wrong to identify ‘canon law’ with the canons of the Church of England. The domestic canons are not the same as the mediaeval Catholic canon law of Europe. In Kemp v Wickes (1809) 161 English Reports 1320, the Dean of the Arches drew a distinction between ‘the ancient general canon law’ and ‘our own canons’ (p.1324).
Application of the Doctrine
Hale’s analysis of the relationship of canon law to ecclesiastical law should guide the researches of ecclesiastical lawyers and courts. If some part of canon law has been incorporated into statute law (Act of Parliament, Church of England Measure or some other statutory rule) then the place to look for it is obviously in the particular Act, Measure or rule.
The relationship of canon law to common law (‘immemorial usage and custom’) is more difficult, but not as difficult as some modern ecclesiastical lawyers seem to think. As Hale says, mediaeval canon law, like statute law, was a written law, taking the form of canons, decrees and decretals, issued by a particular legislator (p.23). English common law, by contrast, is unwritten customary law.
Thus canon law can only ever be incorporated into common law if it has inspired a custom or usage recognised by common law. It is this custom or usage that is the English law, not the canonical legislation that inspired it.
Thus mediaeval canon law is the seed, the post-Reformation custom or practice is the plant that grows from it. English law is concerned only with the plant, not directly with the seed. The task of the lawyer or the court, therefore, is to examine the alleged custom or usage, not the mediaeval canonical legislation out of which it grew.
Hale also makes the point that common law will only enforce a custom or usage that it considers reasonable (p.26). This follows the Submission of the Clergy Act 1533, which provides that pre-Reformation canon law must ‘be not contraryant nor repugnant to the lawes statutes and customes of this realm’ (s.7). An unreasonable canon law-inspired custom would not satisfy this condition.
How is the ecclesiastical custom or usage to be identified as common law? In Middleton v Crofts (1736) 26 English Reports 788, Lord Chief Justice Hardwicke suggested that the correct test for the survival of pre-Reformation canon law into English common law is clear recognition by the courts.
Referring to the ecclesiastical courts, he held that ‘a long course of [judicial] precedents would be of great weight … though a few instances would not, because … parties might choose to submit, rather than undergo the expense and clamour of a suit for prohibition’ (p.799). However, ‘the sanction of a judgment of this [secular] court’ is ‘more material’ still.
Lord Hardwicke anticipated modern confusion by warning against an ‘antiquarian’ approach to ecclesiastical common law. ‘The history of the ancient councils of this island … furnish very little materials towards fixing the point of law as to the obligations of canons’ (p.790). The basis of membership of these councils ‘is very uncertain and obscure’. Moreover if those councils met under the legatine authority of the Pope, rather than the metropolitical authority of the Archbishop, then they were no more than a ‘papal usurpation’, and could have no authority in English law.
Lord Hardwicke therefore concluded that ‘it is safest for judges to proceed upon sure foundations which are
 the general nature and fundamental principles of this [English / British] constitution
 Acts of Parliament and
 the resolution and judicial opinions in our books,
and from these to draw our conclusions’.
In other words, English ecclesiastical law is identified in exactly the same way as English secular law, by studying the relevant statute and case law.
The constitutional doctrine that English ecclesiastical law is not canon law is clearly stated, on the highest authority. Yet ecclesiastical lawyers seem to have remarkable difficulty understanding it. Despite the clear legal authority to the contrary, ecclesiastical law is often described as if it and canon law were one and the same thing. Discussion becomes very confused as a result.
Peter Winckworth’s commentary A Verification of the Faculty Jurisdiction (1953 SPCK, London) indicates a failure to heed Lord Hardwicke’s warning against an antiquarian approach to the law.
Winckworth traces the ‘source’ of the English faculty jurisdiction over churches and churchyards to a constitution or canonical rule promulged by a mediaeval ‘pan-Anglican’ council in 1236. This apparently forbade rectors to ‘pull down ancient consecrated churches without the consent and licence of the Bishop of the diocese’ (p.2).
The constitution of 1236 may be the earliest extant canonical rule in England that alludes to episcopal jurisdiction over church buildings, but it is hard to accept that it constitutes the legal source of the modern faculty jurisdiction. It refers only to the destruction of ancient churches. It does not purport to confer power on the bishop to control all dealings with Church property.
Moreover, Winckworth admits that the faculty jurisdiction as it exists today was not apparent until the mid-18th century, and that 17th century textbooks on ecclesiastical law do not even refer to the faculty jurisdiction (p.13). If the rule promulged in 1236 really founded the faculty jurisdiction, this gap of half a millennium is hard to explain.
It is argued that Lord Hardwicke’s approach in Middleton v Crofts, based on principle and authority rather than historical curiosity, is to be preferred. The true ‘source’ of the faculty jurisdiction in English law is a constitutional principle, not a particular rule issued by a mediaeval council. Church buildings are places of public worship. Bishops oversee the administration of public worship. This function of religious oversight brings with it the right to control dealings with church buildings, to ensure that they are being used in accordance with their proper purpose.
This constitutional principle of episcopal oversight is part of English law. The principle was clearly inherited from mediaeval canon law. However, the particular rule of 1236 is not part of English law, and never was. It is merely one manifestation of the canonical principle that English law inherited.
However, Winckworth’s thesis on the faculty jurisdiction is a model of coherence compared with a certain opinion delivered to the House of Bishops in April 2010 by some legal officers of the Church of England. The opinion is entitled ‘Divorce and Episcopal Appointments: The Legal Position’. The text may be found on the internet website thinkinganglicans.org, accessed 19th May 2012.
This opinion addressed the question whether being divorced and remarried would be an ‘impediment’ to a priest being ordained (consecrated) as a bishop. The opinion correctly noted that divorce, in the modern sense of dissolution of marriage, was not possible under mediaeval canon law. Thus divorce could not have been an impediment to ordination under canon law, since divorce itself was unknown to canon law (para 4).
However, this fact did not deter the learned authors of the opinion from discussing mediaeval canon law at length. Having accepted that divorce was unknown to canon law, they identified bigamy as the nearest mediaeval equivalent (para 7). If a married mediaeval man who had tired of his wife but failed to persuade the Church courts to annul the marriage were to marry again, the second marriage would, of course, be bigamous. Canon law, unsurprisingly, disapproved of bigamy.
The opinion suggested that ‘the concept of bigamy under pre-Reformation canon law could have had relevance’ to ordination (para 8). However, it went on to conclude that ‘it would seem very difficult (and probably impossible) to prove that the relevant canons [concerning bigamy] were recognised, continued and acted upon in England after the Reformation’ (para 13).
The speculation about bigamy as a canonical impediment to ordination is a complete confusion, for the very reason identified in the opinion. The subject of the opinion was divorce, not bigamy, and the possibility of divorce in the modern sense was not recognised by mediaeval canon law.
However, the cause of the confusion was the failure to heed the constitutional doctrine stated by Hale and confirmed by Millis. The opinion presumes that mediaeval canon law must be part of English law unless there is clear authority that it is not. Hale and Millis make clear that the contrary presumption applies. Mediaeval canon law is not part of English law, and never was, unless it has clearly been incorporated into English law by statute or case law.
As the opinion recognised, the appointment of bishops is governed by statute law, the Appointment of Bishops Act 1533. It also engages the royal prerogative. The Submission of the Clergy Act, quoted earlier, made clear that no canon law was acceptable if it was contrary to statute law, or was ‘to the damage or hurte’ of the royal prerogative (s.7).
The Appointment of Bishops Act and the case law on the confirmation of a bishop’s election state the Crown’s right to choose bishops in the clearest terms. Any mediaeval ‘impediment’ to the consecration of a bishop chosen by the Crown would have received very short shrift in a post-Reformation court.
If a divorced and remarried bishop-elect were to deliberately conceal or fail to mention his previous marriage, the case of R v Archbishop of Canterbury (1902) 2 King’s Bench 503 suggests that this might be reason to refuse to confirm the election: ‘If … anything were brought to [the Archbishop’s] notice … that the sovereign had been deceived or misinformed, he might … properly delay confirmation or consecration until the sovereign’s direction could be taken …’ (p.561).
Rather belatedly the opinion of April 2010 recognised that there is no post-Reformation law to forbid the ordination of a bishop who has been divorced, only of a priest or deacon. The draftsman of the Clergy (Ordination and Miscellaneous Provisions) Measure 1964 sought to prevent divorced and remarried persons from entering the ordained ministry, but failed to consider the possibility of clergy getting divorced and remarried after ordination. The answer to this anomaly is new legislation to close the loophole, not to search for non-existent mediaeval ‘impediments’.
The antiquarian approach to ecclesiastical law taken by Winckworth and by the authors of the 2010 opinion also raises an issue of public policy. Church factions, and even Church courts, should not be enabled to dig up obscure mediaeval documents, written in Latin rather than English, and use these to exclude from office candidates of whom they disapprove, or to promote a particular agenda, or to claim legal powers. Simple justice demands that legal rules should be clearly stated and easily ascertainable, not buried in ancient history.
Law and History
The April 2010 opinion shows that failure to distinguish between canon law and ecclesiastical law leads in turn to a confusion between law and history.
Thus the search for the answer to a point of ‘ecclesiastical law’ begins in the middle ages, or even earlier, and then muddles through the best part of a millennium to the present day. This unearths an eclectic mass of legal detritus that has accumulated through the ages, which is then treated prima facie as the current ecclesiastical law.
In St. Peter’s, Draycott (2009) 3 Weekly Law Reports 248, the Court of the Arches referred to ‘the well-known uncertainty about what ecclesiastical law remained in force after the Reformation’ (p.258). The chancellor who decided St. Mary the Virgin, Oxford (2009) 2 Weekly Law Reports 1381 was also much concerned about this question.
Of course, there may well be uncertainty about how ecclesiastical law changed (or stayed the same) in the mid-16th century. There may be similar uncertainty about 16th century criminal law, or 16th century employment law. However, this is a historical question, not a legal one.
The function of the court and the lawyer is to establish what the law is now, not what it was hundreds of years ago. If the current law is unclear, it may be necessary to examine the earlier law which it replaced. Nevertheless the object of the enquiry is always the current law, not any earlier law that has been repealed (and still less any material that was never part of the law in the first place).
Therefore the question whether a particular rule of mediaeval canon law survives in modern English law is answered by researching the current English law (statute and case law) in the usual way, not by researching mediaeval law or 16th century law. Ecclesiastical law is part of English law. Like secular law, it comprises statute law and common law. It should be studied according to the same method as secular English law.
Perhaps there was considerable uncertainty about the state of the ecclesiastical law in the days when most of it took the form of unwritten common law. However, during the 19th and 20th centuries, most ecclesiastical law (like most secular law) was codified in statute.
Modern statute law tends not only to be very detailed and exhaustive, but is also supplemented by ‘quasi-legislation’ (guidelines, codes of practice etc). This allows very little scope for the survival of canon law-inspired custom or usage.
It is possible that the practice of the mediaeval or early modern Church may be relevant to the grant or refusal of a faculty in a particular case. However, such practice is a question of fact, historical evidence, not a question of law. Historians with the appropriate expertise should be consulted in such a case. The Diocesan Advisory Committee may be able to assist.