Ecclesiastical Law Ancient and Modern
by Philip Jones
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
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.