The royal preface to the canons suggests that their purpose is:
(1) ‘the honour and service of Almighty God’
(2) ‘the good and quiet of the Church’ and
(3) ‘the better government thereof’.
This makes clear that canons are not concerned only with the ministry of Word and Sacrament (purpose (1)), but also with ecclesiastical jurisdiction, the power of governance (purposes (2) and (3)).
Many, if not most, of the canons are concerned with jurisdiction. The subjects of jurisdiction include:
(1) the regulation of school teaching (canons 77-79)
(2) wills, probate and the administration of estates (canons 92-93, 126)
(3) marriage and divorce (canons 99-108)
(4) public order (canons 109, 111, 121)
The canons also provide much regulation of the practice and procedure of the ecclesiastical courts (eg canons 94, 96-98).
Offences against public order for which the Church was responsible are identified by canon 109. They include ‘adultery, whoredom, incest or drunkenness … swearing, ribaldry, usury and any other uncleanness and wickedness of life …’. Several of the behaviours referred to remain capable of constituting criminal offences today. They are sometimes described as ‘moral’ offences, but the wording of canon 109 makes clear that they had to have a public element in order to come under the criminal jurisdiction of the ecclesiastical courts. The defendants’ conduct had to ‘offend their brethren’ and be ‘notorious’.
Thus canon 109 was not concerned with what is known in canon law as the ‘internal forum’. Ecclesiastical jurisdiction over ‘secret and hidden sins’ is regulated by canon 113 instead.
The reduced scope of the canons since the 17th century has two obvious causes:
(1) much ecclesiastical jurisdiction has been abolished or secularised. Of the jurisdictions mentioned above, the Church retains only a limited jurisdiction over the solemnisation of marriage in church.
(2) the expansion of statute law. The canons of 1603 were promulged at a time when most ecclesiastical law (and most English law in general) was common law.
In the modern Church of England, the power of governance is mostly regulated by statute (Acts of Parliament and Measures). The revised canons regulate ministry rather than governance. References to governance in the revised canons are often limited to identifying or summarising the relevant statutory provisions (cf section G).
However, modern ecclesiastical legislation shows that statutes and canons need not be incompatible. The most important modern canons, those regulating public worship (canons B1-5), are really secondary legislation made under the authority of a ‘parent’ statute (the Worship and Doctrine Measure 1974). The ‘ecumenical canons’ (canons B43-44) are also secondary legislation.
If the Church’s ministry of Word and Sacrament can be regulated in this fashion, there seems to be no constitutional reason why ecclesiastical jurisdiction could not also be regulated by canons made under the authority of parent Measures. This might create a comprehensive, coherent system of ecclesiastical law.
The reluctance to create such a system may be due to simple indifference. There may also be a feeling that canons should not be used to regulate jurisdiction, even if supported by the authority of primary legislation, because of the supposed rule, associated with Lord Hardwicke’s celebrated judgment in Middleton v Crofts (1736) 26 English Reports 788, that canons cannot ‘bind’ the laity.
King James I seems to have had no doubt that his canons did bind the laity. His preface declared that the canons should be ‘observed, performed, fulfilled and kept … by all other persons within this realm, as far as lawfully being members of the Church, it may concern them …’, not just the clergy. In his royal assent he said ‘We … straightway enjoin and command … the [canons] to be diligently observed, executed, and equally kept by all our loving subjects … both within the Province of Canterbury and York …’.
The royal assent required that the canons be publicised to the laity: ‘every minister … shall, in the parish church or chapel where he hath charge, read all the said canons [etc] once every year, upon some Sunday, or Holy Days in the afternoon, before Divine Service … one half may be read one day, and the other another day’. Also ‘the Book of the said Canons [is] to be provided at the charge of the parish’.
Middleton v Crofts was decided after the civil war and the glorious revolution, when the principle of parliamentary sovereignty was more firmly established than it had been during James I’s reign. Lord Hardwicke hinted at this when he observed that ‘the law in latter times has been universally taken to be, that the canons of 1603 do not bind the laity for want of a parliamentary confirmation’ (p.790).
He also made clear that there were wide exceptions to this general rule: ‘there are many provisions contained in these canons, which are declaratory of the ancient usage and law of the Church of England, received and allowed here, which, in that respect … will bind the laity’ (p.790).
Lord Hardwicke also referred to the Submission of the Clergy Act 1533, which he noted was ‘The only Act made ex professo upon the subject of the canons … But even this statute is … silent as to the persons over whom the obligation of canons may extend’ (p.793). The Act did not expressly state that the laity could not be bound by ecclesiastical canons.
The 1533 Act envisaged a project to reform or codify ecclesiastical law (reformatio legum ecclesiasticum), which was never effected. Lord Hardwicke observed that ‘If the [reform of] the ancient canon law by commissioners’ authority by [the 1533 Act] had been effectually carried into execution … the system of ecclesiastical laws which they had approved, would have derived its binding force … from the legislature’ (p.796).
This account makes clear that the 1533 Act was retrospective in its effect. It was concerned to regulate only the canons in force in 1533. The Act was, of course, passed 70 years before the canons of 1603, so could not apply to those canons.
The rule about canons not binding the laity was not even engaged in the Middleton v Crofts case. Mr and Mrs Middleton complained to Lord Hardwicke when the ecclesiastical court prosecuted and punished them for making a clandestine marriage. Lord Hardwicke rejected this complaint. He held that the ecclesiastical court did have jurisdiction to punish them for this offence, because
(1) the ecclesiastical courts had consistently exercised such jurisdiction
(2) the jurisdiction had been supported by the secular court on a previous occasion
(3) it had been implicitly recognised and affirmed by an Act of Parliament and
(4) it was consistent with public policy, which was to deter illegal marriages.
None of these points concerned the canons of 1603.
However, the ecclesiastical court had also prosecuted the Middletons for getting married at an ‘uncanonical’ time of day. Canon 102 provided that a marriage licence was conditional on the marriage being solemnised between 8 am and 12 noon.
The Middletons, of course, had not troubled to obtain a marriage licence and got married without one. Lord Hardwicke ruled that they were justly punished for this offence. They had made their illegal marriage outside the hours of 8 to 12. However, Lord Hardwicke ruled that the ecclesiastical court could not prosecute the Middletons for getting married at the wrong time, ‘that circumstance having been … introduced by the canons of 1603’ (p.802).
It should be noted that canon 102 did not make it an offence to marry outside the hours of 8 to 12. It merely attached a condition to the grant of a marriage licence. The ecclesiastical court had wrongly deduced that, if all marriage licences are subject to a compulsory time condition, it must be a criminal offence to get married outside that time. But canon 102 did not say this.
Thus the injustice to the Middletons, such as it was, was not due to canon 102 but from a misunderstanding of canon 102 on the part of the ecclesiastical court. Lord Hardwicke did not impugn or ‘quash’ canon 102 or any other canon.
Because the case concerned a clandestine marriage, Lord Hardwicke did discuss the ‘5 canons [of] 1603 that relate to clandestine marriages’ (p.789), canons 62 and 101-104. However, discussion showed that the canons were not relevant to the case. ‘It seems to be plain from [their wording] that none of these canons do in the words or terms of them affect the parties contracting [marriage] [i.e ‘the laity’], except the last clause of canon 104, which relates to persons married by colour of void licences … but that is not the present case…’ (p.789).
Lord Hardwicke therefore concluded that ‘For this reason [their own wording] it does not appear to us that the provisions of the canons of 1603 do extend to the laity in such a case as is now before the court’.
However, he went on to speculate ‘But, supposing lay persons might be within the words of the canons in 1603, the next consideration is, whether the authority by which those canons were made can bind the laity as to this matter’. It was only from this speculative basis that Lord Hardwicke formulated his famous ‘rule’.
Thus the tension between James I’s view of the canons and Lord Hardwicke’s may have been exaggerated. Middleton v Crofts makes clear that a canon will certainly bind the laity if it is supported by statutory authority. However, there are two further confusions about the ‘binding’ effect of ecclesiastical canons.
First, there is confusion between the ancient constitutional principle of consent to legislation and the modern principle of religious freedom and ‘human rights’.
Lord Hardwicke held that the canons could not bind the laity because, and only because, the laity had not consented to them. The canons were made by the convocations, which were then composed exclusively of clergy. The General Synod, by contrast, includes lay representatives as well as clergy, so there is no constitutional reason why canons passed by the General Synod should not bind laity as much as clergy.
Ecclesiastical law will ‘bind’ the laity just as much as employment law, criminal law or tax law. However, ecclesiastical law, like secular law, must respect the principle of religious freedom. The question for modern secular courts is therefore different from that addressed by Lord Hardwicke. It is not whether the laity have consented to the canons (they have), but whether the canons are consistent with the human rights of the laity.
The second confusion concerns the very word ‘bind’. A rule ‘binds’ when it imposes duties or liabilities or sanctions, or where it restricts legal rights. It will not bind people merely because it affects or concerns them in some way.
Thus a doctor is bound by professional rules when examining a patient. The patient is not bound by those rules. However, the patient is inevitably affected by the rules, because they govern the doctor’s treatment of the patient. Indeed the very purpose of professional rules is to protect the patient.
However, modern discussion of the canons tends to assume that even the remotest, slightest effect amounts to ‘binding’. The word ‘bind’ is interpreted rather loosely!
Yet Lord Hardwicke never suggested that canon 102 could not attach a compulsory time condition to marriage licences. Canon 102 ‘binds’ the licensing authority, which can only grant a licence subject to this condition. This obviously affects the couple seeking the licence, but it does not impose a duty or liability on them, nor does it restrict any legal right of theirs. By definition, there is no right to a licence.