The End of Canon Law in England
by Philip Jones
The ‘papal’ character of mediaeval canon law in England was the subject of the famous ‘Stubbs-Maitland’ controversy at the end of the 19th century.
Bishop Stubbs, reckoned the greatest historian of his day, argued that there was a distinctively English canon law in mediaeval times, notwithstanding the nominal allegiance to Rome. This thesis is set forth in the Bishop’s contribution to the report of a royal commission on the ecclesiastical courts published in 1883. It is apparently supported by the case of Kemp v Wickes (1809) 161 English Reports 1320, in which the ecclesiastical court drew a distinction between ‘the ancient general canon law’ and ‘the particular constitutions made in this country to regulate the English Church’ (p.1324).
However, in his book Roman Canon Law in the Church of England, published in 1898, F.W Maitland denied that mediaeval canon law in England possessed any national character. He apparently satirised Stubbs’ thesis as maintaining that the Church of England was Protestant before the Reformation and Catholic after it! By contrast, Maitland asserted that the mediaeval Church was governed by papal law, the law derived from papal courts and councils, which was faithfully applied by the English Church courts.
Maitland’s view prevailed (apparently even Stubbs admitted that he had been wrong), though it has been modified by subsequent commentators such as E.W Kemp and R.H Helmholz, who emphasise the flexibility of mediaeval law and its tolerance of local custom.
The break with Rome was also the break with canon law. At the Reformation, King Henry VIII ordered that Oxford and Cambridge Universities should cease to teach canon law. Only civil (Roman) law was to be taught in future.
The ecclesiastical courts and the legal community at Doctors’ Commons survived the Reformation, but the inhabitants of Doctors’ Commons were described as ‘civilians’, because they were doctors of civil law only. They could not be ‘canonists’, since it was no longer possible to take a degree in canon law.
Maitland lamented the prohibition of canon law. He described it as ‘the great breach of continuity … No step that Henry took was more momentous. He cut the very life thread of the old learning’: op.cit, p.92. That, of course, was the intention. The prohibition of the study of canon law supports Maitland’s thesis. The obvious reason for Henry’s suppression of canon law was its papalist character.
Civil law, by contrast, being the law of the Roman emperors, was much more congenial to the King. Maitland observed that ‘Henry encouraged and endowed the study of the civil law, and the unhallowed civilian usurped the place of the canonist on the bench [of the ecclesiastical court]’ (p.93).
The House of Lords was emphatic in R v Millis (1844) 8 English Reports 641 that ‘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).
However, despite the historical evidence and legal authority to the contrary, it continues to be widely believed, even by lawyers, that the Church of England is governed by ‘canon law’. Maitland’s victory over Stubbs may have been somewhat hollow.
The 1947 report The Canon Law of the Church of England is admirable as a historical account of canon law. Its treatment of English law, by contrast, is rather confused. The very title of the report betrays the confusion. The authors of the report failed to appreciate that English law and canon law are two different things, just as English law and Roman law are two different things (or English law and French law). The Church of England is governed by English law, not by canon law. To speak of ‘English canon law’ is like speaking of ‘English Roman law’.
Yet the confusion persists into the 21st century. The year 2013 saw publication of the fourth edition of E Garth Moore’s Introduction to English Canon Law.