Lords Blackburn and Denning on Ecclesiastical Law
by Philip Jones
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:
(3) suspension ab ingressu ecclesiae and
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).