Home
| Databases
| WorldLII
| Search
| Feedback
ALTA Law Research Series |
Last Updated: 16 August 2010
THE INFLUENCE OF THE COMMON LAW ON THE DECLINE OF THE ECCLESIASTICAL COURTS OF THE CHURCH OF ENGLAND
NOEL COX*
(2001-2002) 3(1) Rutgers Journal of Law and Religion 1-45 <http://www-camlaw.rutgers.edu/publications/law-religion/cox1.pdf>
I. INTRODUCTION
The Ecclesiastical Jurisdiction Measure
1963[1] established the
present judicial hierarchy for the provinces of Canterbury and York of the
Church of England. This hierarchy comprises
Church courts at diocesan and
provincial levels,[2]
with further appeals heard by the Court for Ecclesiastical Causes
Reserved[3] and, in some
instances only, the Judicial Committee of the Privy
Council.[4] Final appeal
from the Court for Ecclesiastical Causes Reserved, and from ad hoc Commissions
of Convocation,[5] are
heard by Commissions of Review, appointed by the Queen in
Council.[6]
The
changes made to the judicial structure of the Church of England in 1963 were
widespread, and were especially significant at the
appellate level. One of the
most notable of the changes was the reduction in the role of the Judicial
Committee of the Privy Council.
This was largely motivated by long-standing
opposition from certain elements within the Church to the perceived
subordination of
the ecclesiastical courts to secular
tribunals.[7] This
opposition was fuelled by the nineteenth century controversy over ritual and
ceremonial and the legality of ornaments, most
of which disputes had doctrinal
implications, yet were being decided in secular
courts.[8]
But this
preoccupation with a perceived subordination to the secular authorities
distracted, it will be argued, attention from a more
subtle weakness in the
judicial apparatus of the Church. Although the Church had largely freed itself
from subordination to secular
tribunals, it was not free from the continuing
influence of the parallel secular legal system. This is due to two major factors
that
had influenced, and continue to influence, the ecclesiastical courts. The
first is that, because the Church of England is established
by the general law
of the country,[9] the
Church courts are the Queen's
courts.[10] The second
and arguably much more important factor is the influence of the common law and
its practitioners upon the jurisprudence
of the Church courts. Both of these
influences will be examined in the course of this paper, though the emphasis
will be upon the
second.
The ecclesiastical courts are a special system of courts administering the
ecclesiastical
law.[11] In a general
sense ecclesiastical law means the law relating to any matter concerning the
Church of England administered and enforced
in any court. In a technical sense-
which is the sense in which the term will be used in this paper- it means the
law administered
by ecclesiastical courts and
persons.[12]
It has
been customary to distinguish between ecclesiastical courts proper, and secular
courts hearing Church appeals. But, to some
extent this has been to make an
artificial
distinction.[13] The
new Court for Ecclesiastical Causes Reserved, and the Commissions of Review, may
be classified as Church courts proper also,
although they may include secular
members. Only the Commissions of Convocation would not normally include secular
judges. However,
since none of these courts hear causes on matters not within
the jurisdiction of the ecclesiastical law, they may be classified as
ecclesiastical rather than secular courts. Even the Judicial Committee of the
Privy Council will transform itself into a quasi-ecclesiastical
court to hear
Church causes, although it is properly a secular court or tribunal.
Of more
importance is the influence of the common lawyers, particularly those who have
practised in the ecclesiastical courts since
the middle of the nineteenth
century, and who have profoundly affected the way in which the Church courts
have operated.
Although the Church law included canon law, rather than Roman
civil law or the secular common law, in the absence of formal education
of
canonists in England after
1535,[14] the
civilians, or practitioners in the civil law, were, to some extent at least, the
guardians of the learning of the Church
courts.[15] These were
the practitioners in the ecclesiastical courts until the late nineteenth
century. Clerical judges were to sit in ecclesiastical
courts until at least the
nineteenth century, though they may have lacked effective legal
training.[16]
If
there is one lesson to be learnt from the experience of the Church courts since
the Reformation, it is that their strength depended
not just upon retaining the
confidence of the bishops, clergy and laity, but that without a strong cadre of
professional judges and
counsel “learned in the ecclesiastical law”,
they fall under the increasing influence of the common law. Without these
personnel, and an understanding that secular judicial procedures are not
necessarily appropriate to decide religious questions, the
ecclesiastical courts
were condemned to satisfy few when contentious issues are decided.
This
paper will examine the provision for pre-Reformation appeals from the provincial
courts, and the nature and effect of the Reformation
settlement, including the
Court of High Commission, and the Court of Delegates. The settlement at the
Restoration will be assessed.
We will then look at the later role of the
Judicial Committee of the Privy Council as an ecclesiastical court, and at the
newer Court
for Ecclesiastical Causes Reserved, as well as the Commissions of
Convocations and Commissions of Review. The common law influences
on the
ecclesiastical courts are then reviewed. Finally an assessment is made of the
influence of counsel in the ecclesiastical courts.
II. PRE-REFORMATION APPEALS FROM THE PROVINCIAL COURTS
Spiritual courts, separate from the secular, existed in England from shortly
after the Norman
Conquest.[17] This
process of separation seems to have occurred around
1072-76,[18] although
it seems to have not been a deliberate move but rather the effect of the
increasing sophistication of the legal system in
late Saxon
England.[19] But
precise identification of courts was still not easy, even at the end of Henry
I's reign. Leges Henrici Primi (c.1118) does not distinguish between a
tribunal to try lay and a tribunal to try ecclesiastical
cases.[20] However,
ecclesiastical jurisdiction in the immediate post-Conquest period was primarily
over moral
offences.[21] In
subsequent centuries the jurisdiction of the ecclesiastical courts was gradually
enlarged,[22] and was
eventually to cover such important aspects of what is now predominantly secular
law as marriage,[23]
divorce,[24] and
succession.[25]
Although the Church courts were to lose most of this jurisdiction to the secular
courts in the nineteenth century, the influence
of the Courts-Christian upon the
development of the law in these areas cannot easily be
exaggerated.[26]
In
theory at least the Courts-Christian and the king's courts were supreme within
their own fields. Medieval jurists were accustomed
to what we might call shared
sovereignty, and saw nothing amiss with the pope having a concurrent
jurisdiction with temporal
sovereigns,[27] nor
with the Church exercising concurrent jurisdiction with the king. In accordance
with this principle, espoused in particular by
the Bologna school of
canonists,[28] the
Church courts were, and remain, as unfettered within their jurisdiction as the
temporal courts within
theirs.[29] As a
general principle, no appeals lay from an ecclesiastical court to a secular
court.[30] Appeal from
the courts of the archbishops lay to the patriarch, in the west the bishop of
Rome. The right of English litigants to
appeal to the pope dates from at least
the time of king
Stephen,[31] and
probably
before.[32]
Such
appeals were heard either by the pope himself, from the time of pope Gregory VII
by his permanent legates, or by special delegates
appointed to hear a particular
cause.[33] An appeal
to the papacy might omit some preliminary steps, omisso medio. Any appeal
heard by a subordinate could be appealed to the pope himself, and even appealed
from the pope to the pope “better
informed”.[34]
Partly
because of the omisso medio, but also due to the increasing jealously of
the common law courts, the right to appeal to Rome was in England long subject
to restrictions
by the king. For, although the church courts were supreme within
their jurisdiction, precisely what that jurisdiction was could be
the subject of
dispute. Nor were the courts immune from contemporary political controversies,
particularly those concerned with the
respective roles of church and
State.[35] Attempts
were made to limit appeals to Rome, as well as original trials by papal
delegates.[36] But
appeals continued nevertheless, perhaps with the king's licence.
One attempt
of many to limit further appeals to Rome was in the Constitution of Clarendon
1164, which gave an additional right of appeal from the primate to the king:
“If the archbishop shall have failed
in doing justice recourse is to be
had in the last resort to our Lord the king that by his writ the controversy may
be ended in the
court of the archbishop, because there must be no further
process without the assent of our Lord the
king”.[37]
But
the king did not hear the cause or adjudicate upon it in person. He merely
corrected slackness or lack of doing justice si archiepiscopus defecerit in
justitia exhibenda and by his
writ[38] directed that
the controversy be determined in the metropolitan's court. There would then be a
rehearing before the
archbishop.[39]
The
most common reason for recourse to the king (recursus ad principem) was
delay by the Courts-Christian. But the secular power did not, as a general rule,
purport itself to decide ecclesiastical questions.
These were a matter for the
Church, subject to correction if there was a complaint of undue
delay.[40] Otherwise,
the jurisprudence of the Church was in the hands of Church courts, presided over
by ecclesiastical judges, and whose advocates
were trained in canon and civil
law rather than the secular common law of the king's courts. As such, the Church
courts were, at
least to a significant degree, an intellectual island, largely
isolated from English common law developments, yet attuned to canon
law
developments on the
Continent.[41]
III. REFORMATION SETTLEMENT
The Statute of Appeals
1532[42] took away the
right to appeals to the papacy in causes testamentary and matrimonial, and in
regard to the right to tithes and oblations.
A final appeal was given to the
archbishop of Canterbury, but in causes touching the king a final appeal was
given to the Upper House
of Convocation in each
province.[43]
The
ending of appeals to Rome was confirmed by the Act of Submission of the Clergy
1533,[44] which ended
all appeals to Rome, and gave a further appeal “for lack of justice”
from the archbishops to the King in
Chancery.[45] But,
unlike the medieval recursus ad principem, these latter appeals were
heard not by the archbishops' courts by way of rehearing, but by the king or his
deputies.[46] For the
first time appeals from Church courts would be heard, not by Church dignities or
the pope, but by a secular judge, the king.
The judges of the
post-Reformation Church courts were appointed by the Church hierarchy, but as
the Church now was required to acknowledge
that the king was “supreme Head
in earth of the Church of
England”,[47]
they were also the king's judges. The judges of the new Church courts were
laymen, recruited from the practitioners of the ecclesiastical
law Bar, the
civilians.[48] Now,
for the first time, the Courts-Christian were also the king's courts. And where
once the pope or his delegates might hear appeals,
of necessity the pope gave
way to the king and his council, now supreme in all questions spiritual as well
as temporal. The abolition
of the papal jurisdiction in itself had little effect
on the substantive law applied in the
courts,[49] nor upon
the structure of the
courts.[50] Overall
however, the Reformation in England may be characterised as relentlessly
juridical in
nature.[51]
Some
common lawyers advocated the abolition of ecclesiastical courts. But this would
have required the fusion of common and canon
law, a truly monumental task. A
commission was appointed to prepare a code of “the king's ecclesiastical
laws of the Church
of
England”,[52]
but the report was shelved. The canon law therefore was to continue in force,
except where it was contrary to the common or statute
law, or the king's
prerogative.[53]
The
two jurisdictions thus exist side by side, but with the balance now weighted in
favour of the common law. The law applied by the
ecclesiastical courts was now
regarded as part of the law of England and the (at least in later centuries)
reports of relevant cases
in either jurisdiction were cited in the courts
exercising the other
jurisdiction.[54] The
ecclesiastical law was now fully a part of the laws of England, even if it were
not part of the common
law.[55] The
ecclesiastical courts were now overtly influenced by developments in the common
law courts, and not merely obliged to consider
the political or temporal
consequences of spiritual judgements, as before the Reformation.
The
specialised nature of the jurisdiction and the survival of the civilians
preserved the separate Church courts in the face of the
jealousy of the common
lawyers and the common law
judges.[56] The
settlement did not however survive intact for long, and it was that element most
closely associated with the royal prerogative
which was to suffer first in the
seventeenth century struggle between king and commons, and this was to have
important consequences
for the development of the ecclesiastical law.
IV. COURT OF HIGH COMMISSION
It was almost inevitable in view of the impetus of conciliar control in the
sixteenth century, that the Privy Council should have
intervened judicially in
many spiritual matters. The council was the agent of the royal supremacy, and
the agent of the council was
the Court of High
Commission.[57]
The
Act of Supremacy
1534[58]
recognised Henry VIII as “supreme Head in earth of the Church of
England”, and assigned to the Crown the power of ecclesiastical
visitation. This was given practical effect in 1535 when Thomas Cromwell was
appointed
vicegerent,[59]
invested with the plenitude of royal authority in ecclesiastical affairs and
directed to delegate part of it from time to time to
such persons as he thought
fit.[60] The first
general commission replacing a single vicegerent, was issued by Edward VI in
1549.[61]
The royal
powers were confirmed by the Act of Supremacy
1558[62] which
declared the Queen to be: “supreme Governor of this realm ... as well in
all spiritual or ecclesiastical things or causes
as temporal” and
authorised the Crown to nominate by letters patent persons to exercise on its
behalf “all manner of
jurisdictions ... touching ... any spiritual or
ecclesiastical jurisdiction ... and to visit, reform, redress, order, correct
and
amend all ... errors, heresies, schisms, abuses, offences, contempts and
enormities whatsoever”.
This idea was repeated in the Thirty-Nine
Articles of Religion, enacted in 1562, and confirmed in
1571.[63] Thus the
ecclesiastical commission was a device to effectively enforce the laws of the
Reformation settlement and exercise control
over the Church.
By the Court of
High Commission the authority of the Church was to be at once controlled and
supplemented by that of the State. It
exercised the pope's supreme personal
jurisdiction, particularly in criminal matters.
Until 1565 its work was
mainly visitorial, and its authority regarded as temporary. But the continued
difficulties experienced in
enforcing the settlement, the development of
additional administrative functions by the commission itself, and the increasing
delegation
to it of ecclesiastical or semi-ecclesiastical business from the
Privy Council gave the commissioners a sufficiently permanent tenure
to enable
them to establish traditions and judicial forms which, in time, transformed a
temporary device into a permanent, regularised
prerogative
court.[64]
In the
course of its history the High Commission gradually grew in membership. There
were in all 24 members in
1549,[65] 108 in
1633,[66] of which
three bishops had to sit. Of these one had to be one of the quorum, which
numbered 11 in
1549,[67] and 68 in
1633.[68] There was an
effective nucleus of canon
lawyers.[69]
The
Court of High Commission was an attempt to claim for the Council a jurisdiction
modelled on that exercised by the pope, of hearing
a complaint at first
instance, where a party was sufficiently powerful to prejudice a fair trial in
the ordinary
courts.[70] It also
incorporated the power assumed by the early chancery of interfering with normal
procedure where for some reason it appeared
to have perpetuated an injustice.
But the court was quickly denounced, its jurisdiction opposed by puritans,
common lawyers, and
common law judges alike, and was abolished in
1641.[71]
V. RESTORATION SETTLEMENT
The Civil Wars of the seventeenth century ended with a general acceptance of
Erastian ideology by Restoration prelates and their
allies.[72] This
approach, which stressed the interdependence of Church and State, was consistent
with the traditional lay perception of the
Church, nor was it entirely novel in
clerical circles.[73]
The desirability of a liturgical and doctrinal uniformity after a period of
upheaval was expressed in the new Prayer
Book,[74] and was
for a time achieved, to a degree unmatched
since.[75]
With
the coming of king William III and queen Mary II, the High Church understanding
of the royal supremacy suffered a serious setback.
Erastians saw the supremacy
as that of the whole apparatus of government, carried out in the name of the
Sovereign.[76] No
longer could it be seen as the supremacy of the Sovereign personally- still less
could this be true under the Catholic king James
II. The ecclesiastical law
itself was seen as being as much a part of the law of the land as the common law
itself.[77] The spirit
of the age was very much in favour of the Church courts and the common law
courts working as part of a unified system
of
laws.[78]
Till the
Civil Wars the two systems had operated largely independently, now they were
motivated by a sense of common
purpose.[79] Before
the Reformation the ecclesiastical courts had paid no attention to either common
law or statute, and had accepted writs of
prohibition from the Court of
King’s Bench only as force
majeure.[80] The
period 1533-1660 had been one of adjustment. After 1660 an intellectual
rapprochement occurred. Canonists made greater use of
common law precedents and
statutes,[81] and even
the common lawyers were less inclined to deny the canonists their jurisdiction-
though it was by now largely limited to
testamentary and matrimonial
matters.
The estrangement of the bishops and clergy from their courts was in
part attributable to the integration of the latter into the unified
Erastian
structure. But it may have had its roots in Elizabethan ecclesiastical
administration. The first generation after the Reformation
was less legalist,
and more efficient, than the medieval. That after the Restoration was more
legalist, but perhaps less central
to Church
life.[82] Rather than
strengthening the position of the Church courts, this had the effect of
emphasising their increasingly marginal role
within the Church, and their
weakness when compared to the secular courts.
VI. COURT OF DELEGATES
The royal supremacy remained theoretically and practically real. This was so
whether this was exercised through the Church courts
or lay courts, for all were
the king's courts.[83]
One post-Reformation element in this supremacy was the Court of
Delegates.
King Henry VIII exercised the ecclesiastical jurisdiction
conferred by the Act of Supremacy
1534[84] through his
vicegerent. King Edward VI exercised it through a Commission of Delegates (the
Court of
Delegates),[85]
established under the Act of Submission of the Clergy
1533.[86]
The Court
of Delegates heard appeals that formerly would have been assigned to papal
delegates. Its members were secular judges and
civilians, appointed by the Court
of Chancery[87] and,
frequently, lords spiritual and
temporal.[88] From the
Court of Delegates appeal lay to specially appointed Commissions of Review.
Unless the king was to be regarded as an ecclesiastical
person,[89] these were
not properly speaking ecclesiastical courts, although spiritual persons might
sit in them, for they sat only as royal
commissioners.
The Court of
Delegates was criticised on the grounds that members were appointed afresh for
each cause,[90] and
because it gave no reasons for its
decisions,[91] and
didn't follow a formal rule of
precedent.[92] The
members were often common law judges unfamiliar with the ecclesiastical law, and
the procedures of civil and canon law
courts.[93] The
resulting lack of continuity and uncertainty can be imagined. But more
importantly, the intellectual independence of the ecclesiastical
law began to be
affected by the involvement of common lawyers.
The ecclesiastical judges
refused to follow the decisions of the Court of Delegates, and, following a
review of its
operation[94] it was
replaced in 1833 by the newly regularised Judicial Committee of the Privy
Council.[95]
VII. THE PRIVY COUNCIL AS AN ECCLESIASTICAL COURT
The Judicial Committee of the Privy Council followed common law procedures,
and applied precedents according to the common law doctrine
of stare
decisis.[96] It
was a manifestly lay institution, and one driven by common law traditions.
Doctrinal or liturgical questions did not loom large
in the regular business of
the Court of Delegates, and most ecclesiastical appeals had involved the probate
and matrimonial
jurisdiction.[97]
However, these were to be lost from the middle of the century, in time for the
liturgical controversies surrounding the High Churchmen
of that
time.[98]
Although
the Church Discipline Act
1840[99] made all
archbishops and bishops members of the Judicial Committee, and required their
presence as assessors for an ecclesiastical
appeal, they were removed by the
Appellate Jurisdiction Act
1876.[100] Prelates
were now eligible to be appointed members of the Judicial Committee, and an
archbishop or the bishop of London, and four
other bishops are called as
assessors for ecclesiastical
causes.[101]
In
the 1840s a series of liturgical and doctrinal cases were decided in the
Judicial Committee. In its approach to doctrine the Judicial
Committee was very
clear that its role was not to bear witness to any particular truth, but simply
to set the limits of what was
legally
permissible.[102]
Early and famous instances of this legalist approach were
Gorham[103]
and the Essays and Reviews
Case.[104]
In the course of the century some obsolete jurisdictions were allowed to
become defunct. The Public Worship Regulation Act
1874[105] was an
ill-fated attempt to simplify procedures in liturgical
cases.[106] It
increased rather than allayed discontent, a resentment in particular being that
the final appellate authority was a non-ecclesiastical
body.[107]
The
first judge appointed under the 1874 Act, which effectively combined the offices
of Dean of the Arches and Official Principal
of the Chancery Court of York, was
Lord Penzance. He refused to take the customary oaths and execute the canonical
subscription that
had been required for the offices now merged into his.
Although he may have been legally correct, his stand did nothing to commend
the
legitimacy of his subsequent judgments to those who felt that only an
ecclesiastical court could decide liturgical
questions.[108]
Since
1884 some dissatisfaction had been expressed with appeals to the Judicial
Committee of the Privy Council in its existing
form.[109] It was
not necessarily the lack of canonical learning of the judges in that tribunal,
even its decisions, but rather the secular
character of the body, and the
secular means by which the judges decided the outcome, which aroused
criticism.[110] It
must be said that the High Church party were at times curiously inclined to
oppose the decisions even of undoubtedly ecclesiastical
courts.[111] Such an
attitude was not maintained without
criticism.[112]
Six
commissions inquiring into Church courts were conducted 1883 to 1952, and the
recommendations of the last were enacted
1963.[113] The three
most recent commissions had suggested adding clergy to the Judicial Committee.
In matters not concerning doctrine or ritual
the commission expressed some doubt
as to the need for a second appeal, beyond the provincial courts.
The 1951-54
commission on ecclesiastical courts chaired by Lloyd-Jacob J recommended that
these courts be divided into conduct cases
(morality and neglect of duty), and
reserved cases (doctrine and ritual). The former would be heard by consistory
courts and the
provincial courts. The latter would be heard by a new Court of
Ecclesiastical Causes Reserved. The power of the Queen in Council
to hear and
determine suits of duplex querda (the refusal by a bishop to institute to
a benefice) was abolished in
1964.[114]
Whether
an appeal will be heard by the Judicial Committee of the Privy Council depends
upon whether the matter involves a point of
doctrine, ritual, or ceremonial. It
hears appeals from the Arches Court, and the Chancery Court of York, except on
matters of doctrine,
ritual or
ceremonial.[115] If
the matter does not involve a reserved cause, appeal remains from the consistory
court, to the provincial court, and finally to
the Judicial Committee of the
Privy Council.
If the Chancellor certifies that such a reserved matter is
involved, then a civil or criminal case is appealed to the new Court of
Ecclesiastical Causes Reserved directly from the consistory court, bypassing the
provincial court. It also has jurisdiction to hear
appeals against pastoral
schemes of Pastoral
Committees,[116] and
against schemes prepared by the Cathedrals
Commission.[117]
Proceedings are governed by the Rules in Ecclesiastical and Maritime
Causes.[118] From
the Court of Ecclesiastical Causes Reserved appeal lies to the new Commission of
Review. The Judicial Committee of the Privy
Council is excluded
altogether.[119]
Fear
of repetition of the ritual prosecutions of the nineteenth century, and a
dislike for many of the decisions reached on these
matters by the Judicial
Committee of the Privy
Council,[120] meant
that the Privy Council is not now authorised to decide any matter which involves
a question of Church doctrine, ritual, or
ceremonial. Such matters have passed
to a new court.
VIII. THE COURT FOR ECCLESIASTICAL CAUSES RESERVED
When the Court for Ecclesiastical Causes Reserved was created in 1963, the
Church of England gained a new court for deciding appeals
in matters of
doctrine, ritual or ceremonial. In keeping with the principal that the Church
courts are also the Queen's courts the
five judges are appointed by Her Majesty
the Queen. Two must be or have held high judicial office and be a communicant;
three must
be or have been diocesan
bishops.[121] In
criminal matters there must be not less than three nor more than five advisers
selected by the Dean of the Arches and
Auditor[122] from a
panel of eminent theologians and
liturgiologists.[123]
A
complaint against a priest or deacon may be vetoed by his or her bishop, and one
against a bishop by his archbishop. Before a case
is heard, a preliminary
enquiry by a Committee decides whether there is a case to answer. In the case of
a priest or deacon, the
Committee of Inquiry consists of the diocesan bishop,
two members of the Lower House of Convocation of the Province, and two diocesan
chancellors. There are other provisions where the accused is a bishop.
If
the Committee allows the case to proceed, the Upper House of Convocation
appoints a complainant against the accused in the Court
for Ecclesiastical
Causes Reserved, where the procedure resembles that of the High Court exercising
jurisdiction but without a jury.
However, the Court sits with five advisers
chosen from panels of theologians or liturgiologists.
The Court has to date
sat only twice, and in both cases the appeal was allowed. The first case
concerned a faculty authorising an
icon and candlestick introduced into a church
without a faculty.
[124] It was a comparatively
straightforward case, and a single judgment applied a decision of the Court of
Arches.[125] In the
second case, a ten-tonne circular Henry Moore marble sculpture was not allowed
as a holy
table.[126] This was
a much more substantial case, with the hearing occupying eleven
days.[127] The
decision reached may not have been a legally sound one, but it was more
theological than one which the Judicial Committee of
the Privy Council might
have reached.[128]
That was doubtless one of the reasons for constituting the body as it
is.[129]
IX. COMMISSIONS OF CONVOCATION
Commissions of Convocation are appointed by the Upper Houses of the two Convocations to try an archbishop or bishop.[130] Both Convocations make the appointment if an archbishop is involved.[131] This would comprise four diocesan bishops[132] and the Dean of the Arches, who presides.[133] Doctrine, ritual, and ceremonial are excluded from the jurisdiction of the Commissions of Convocation. Appeal would lie to a Commission of Review.
X. COMMISSIONS OF REVIEW
A Commission of Review may be appointed by Her Majesty the Queen on the
petition of an
appellant[134] to
hear appeals from the Court for Ecclesiastical Causes Reserved, and from the
Commissions of
Convocation.[135]
This would comprise three Lords of Appeal (being communicants), and two Lords
Spiritual sitting as Lords of
Parliament.[136] If
doctrine is in issue the Commission sits with five advisers chosen from panels
of theologians. Decisions of previous Commissions
of Review are binding, but not
those of the Judicial Committee of the Privy Council on matters of doctrine,
ritual, or
ceremonial.[137]
This procedure has not yet been
used.[138]
Like
appeals to the Judicial Committee of the Privy Council, those to a Commission of
Review are not strictly to a Church court. Like
the Judicial Committee, the
Commission of Review acts as an advisory body for the Sovereign. Though the
membership of a Commission
would comprise Church members, lay and clerical, it
is nevertheless as much a secular as it is an ecclesiastical body. This is a
consequence of the history of the Church of England, and its continued links
with the secular power. Yet it need not be seen as in
any way restricting the
authority of the Church to regulate its own doctrine.
Whilst concentrating on
the perceived subordination of Church courts to secular judicial bodies, the
Church overlooked the less obvious,
but more invidious, effect that the common
law was having on the Church courts. For the Church courts have themselves
chosen to adopt
the rule of stare decisis, and to cite judgments of the
common law courts. As these latter courts based their judgments solely upon the
common law, the judgments
of the ecclesiastical courts came to be imbued with
the spirit of the common law.
XI. COMMON LAW INFLUENCES ON THE ECCLESIASTICAL COURTS
Only with the reign of king Henry VIII did the ecclesiastical courts become
king's courts. But applicants could always sue for writs
of
prohibition[139] or
mandamus[140]
from the king's courts. These may still issue out of the Queen's Bench Division
to restrain ecclesiastical courts from exceeding
their jurisdiction, or to
compel them to cease delaying hearing any
matter.[141] There
is no recorded instance of a writ being issued to papal legates, though suitors
have been prohibited from appealing to the
pope.[142] The
tribunals subject to these writs are likely to include the Judicial Committee of
the Privy Council. For the enforcement of their
own judgments, and the
maintenance of order, contempt of a consistory court would be dealt with by the
High
Court.[143]
The
temporal courts constrained excesses of jurisdiction by the Church courts even
before the Reformation. The influence of these
writs and orders since then upon
the substantive ecclesiastical law has probably not been significant. What was
significant was the
influence of the principles of the common law.
The common
law was hostile at once to the prerogative and the ecclesiastical law. Both
limited the scope of actions possible in the
common law courts. The criminal
jurisdiction of the ecclesiastical courts included heresy, adultery, incest,
fornication, simony,
brawling in Church,
defamation,[144] and
others. Some Tudor and Stuart legislation made secular offences of conduct that
had fallen within the Church’s exclusive
jurisdiction.[145]
This led to a shared jurisdiction, which in the long term proved more harmful to
the ecclesiastical courts in the face of the jealousy
of the common law, and the
more efficient processes of the common law courts. The settlement of the Church
after the disruption of
the civil wars of the seventeenth century may have led
to an intellectual rapprochement, but this encouraged intellectual borrowing
from the common law which was to erode the distinct identity of the
ecclesiastical
law.[146]
Although
the ecclesiastical jurisdiction was further confined in the course of the
nineteenth century, this was more a symptom than
a cause of this decline. The
ecclesiastical courts lost their power to punish laymen for brawling in
1860.[147] The
residual criminal jurisdiction over the laity was abolished
1963.[148] They
retain a power to discipline clergy, and (it would seem) laymen holding office
in the Church, to determine questions of doctrine
and ritual, to protect Church
property, and decide civil disputes relating to ecclesiastical
matters.[149]
The jurisdiction of the ecclesiastical courts was reduced in England in the
nineteenth century in part because of a lack of understanding
of the procedure
of the ecclesiastical
law.[150] In an 1830
report ecclesiastical courts were criticised for failing to give reasons for
their decisions, and for not following a
system of
precedent.[151] Yet
theirs was a canon law-based system, and not bound to follow the principles or
procedures of the common
law.[152]
It was
inevitable that the Church courts themselves were to change under this pressure.
In 1854 oral evidence in open court was
allowed.[153] The
courts were still forbidden to cite anyone outside the diocese where he lived,
and it was not clear that the courts could even
hear legal arguments in London
unless the litigants lived
there.[154] The
inadequacy of powers to punish for contempt were
obvious.[155]
The binding force of precedent was accepted by the judges in the course of
the nineteenth
century,[156] and
received statutory recognition in the Ecclesiastical Jurisdiction Measure
1963.[157] However,
the Court of the Arches is not bound by decisions of the Chancery Court of York,
and vice-versa. Both are bound by their
own
decisions.[158] The
Consistory Courts are bound by their own
decisions,[159] but
not by decisions of those of a consistory court in another
diocese.[160]
The
substance of the canon law administered by the ecclesiastical courts of the
Church of England was strongly influenced by the civil
law, and even the
Vice-Chancellor's Court of the University of Oxford followed civil law
procedures until
1854.[161] Yet the
Church courts, attacked for adhering to the procedures of the civil law (of
which clerics and laymen alike were increasingly
ignorant), were compelled to
adopt many of the procedures of the common law courts. The common law courts no
longer fought to wrest
jurisdictional victories from the ecclesiastical courts,
but the latter were required to surrender much of their jurisdiction to
the
supposedly more modern and efficient common law courts. As a consequence, the
Church courts began to lose something their intellectual
connection with their
canon law heritage. This loss was encouraged by the decline of the civil law
practitioners in the late nineteenth
century.
XII. COUNSEL IN THE ECCLESIASTICAL COURTS
In all of these Church courts the practitioners were distinct from the body
of common law lawyers. The advocates were trained in the
canon and civil laws at
Oxford or Cambridge, obtaining the degree of
DCL[162] or
LLD[163]
respectively.[164]
Doctors were eligible for admission as advocates of the Court of Arches, whose
Dean of the Arches admitted advocates on a rescript
(mandate) of the Archbishop
of Canterbury,[165]
if they had studied the civil and canon laws for five
years,[166] and
attended the Court of Canterbury for a
year[167]. Once
admitted, they were qualified to practice in the other ecclesiastical courts and
civil law
courts.[168]
There
were never very many practitioners in the canon and civil law, with an average
of only one advocate admitted annually in the
early nineteenth century, of whom
some never
practised.[169]
There were rarely more than five or six active practitioners at a time, and the
civilians were never a dominant force in English
law, administration or
politics.[170]
Advocates
were appointed as judges in the archbishop's
courts,[171] the
Admiralty Court, as masters of the Court of Requests, and to the Court of
Chancery. King's Advocates were also members of Doctors'
Commons. Practitioners
in the canon and civil law courts served the ecclesiastical courts, the Court of
Admiralty, and for arbitration
involving questions of international
law.[172]
They
were members of Doctors' Commons, the Association of Doctors of Laws and of the
Advocates of the Church of Christ at Canterbury,
which existed between c.1490
and 1858.[173]
Established 1511, this was a self-governing teaching body, on a similar pattern
to the Inns of Court, and was governed by Fellows
elected by the existing
fellows, from among its advocates.
The advocates had a monopoly in the
ecclesiastical courts and the Court of Chancery. However, at a time when
pressure was on the Church
courts to adopt common law procedures or be
abolished, so the jurisdiction of these courts can gradually reduced. The Court
of Probate
Act
1857[174] abolished
the testamentary jurisdiction of the ecclesiastical and other prerogative
courts, and set up the new Court of Probate.
This was open, not only to the
advocates, but also to serjeants-at-law and
barristers.[175]
Advocates were given the right to practise in any court of law or equity in
England as if they had been called to the Bar on the
days on which they had been
admitted as
advocates.[176]
The
Matrimonial Causes Act
1857[177] set up the
Court of Divorce and Matrimonial Causes, and provided that all persons admitted
to practise as advocates in any ecclesiastical
court, and all barristers should
be entitled to practise in the new
court.[178] An Act
to enable Serjeants, Barristers-at-Law, Attorneys, and Solicitors to practise in
the High Court of
Admiralty,[179]
passed in 1859, ended the last surviving monopoly of the advocates, with the
exception of the High Court of
Chivalry.[180]
The
members of Doctors' Commons were authorised by the Act to enable Serjeants,
Barristers-at-Law, Attorneys, and Solicitors to practise
in the High Court of
Admiralty 1859[181]
to sell their real and personal estate, and to surrender their 1768
charter.[182] Upon
surrender they were to be
dissolved.[183] With
the exclusive jurisdiction of the civil and canon law courts rapidly shrinking,
recruitment of new advocates became difficult.
The College did not surrender its
charter and the order only became extinct however with the death of the last
advocate,[184]
Chancellor TH Tristram, DCL Oxford, who died in 1912. He had been admitted 2
November 1855, as the last Fellow of the
College.[185]
With the extinction of the advocates, in both the ecclesiastical courts and
the Court of Chivalry barristers are now heard by virtue
of the doctrine of
ex necessitate
rei.[186]
Proctors, the equivalent of attorneys elsewhere, practised in the civil
law-dominated admiralty and ecclesiastical
courts.[187] They
had much greater public exposure than advocates, and spent more time in court.
Doctors of laws never practised as proctors,
some proctors were bachelors, but
some were
non-graduates.[188]
Proctors were admitted to the Court of
Arches.[189] They
were also admitted by the patent of a bishop, to practice in the consistory
court of the dioceses.
The proctors also gradually became extinct as a
separate order, as there was insufficient work for separate professions. In 1857
the
Court of Probate
Act[190] took away
the proctors monopoly of probate
work,[191] and gave
them the right to be admitted as
solicitors.[192] The
Matrimonial Causes Act 1857 allowed all attorneys and solicitors to practise in
the new Court of Divorce and Matrimonial
Causes.[193] An 1859
Act enabled attorneys and solicitors to practise in the High Court of
Admiralty,[194] and
the Solicitors Act 1877 conferred rights on solicitors to appear in
ecclesiastical
courts.[195] In 1873
all solicitors, attorneys and proctors became solicitors of the Supreme Court.
The term proctor is occasionally still used
informally in probate and admiralty
courts.
The consequence of the decline of the ecclesiastical law profession, caused by a reduction in business in civil and canon law courts, itself contributed to a further decline in understanding of the intellectual separateness of the Church courts.[196] The problems of the absence of an exclusively ecclesiastical law Bar and Bench were to influence the evolution of the Church courts in the nineteenth and twentieth centuries. The lack of a separate profession increased the tendency for the law and practice of lay and spiritual courts to approximate more closely, and this, in turn, has tended still more to differentiate English ecclesiastical law from ecclesiastical law in other parts of Christendom, particularly Roman Catholic.
XIII. CONCLUSION
The Church courts are the Queen's
courts.[197] This
has become less significant as the balance of the settlement has changed, and
the Church has become more independent. The role
of purely secular courts in
ecclesiastical causes has
declined.[198] The
changes made in 1963 to the judiciary of the Church of England saw a reduction
in the role of the Judicial Committee of the Privy
Council in the ecclesiastical
jurisdiction. But while the Church may have weakened one consequence of the
establishment, they have
permitted- indeed encouraged, a more serious
undermining of their independence.
The influence of the common law has had an
increasing effect, which has accelerated since the decline of Doctors' Commons
in the middle
of the last century. Concentrating on the perceived misfortune of
having lay courts decide Church causes obscured the more serious,
insidious
influence which the common law was having. The clergy and laity were as much
culpable as anyone; they called for certainty,
for precedents to be cited and
followed. The influence of the common law has compelled the ecclesiastical
courts to adopt principles
of binding
precedent.[199]
At times in the early nineteenth century many judges were clerics, lacking
the experience and training necessary for judicial office.
The ecclesiastical
judges are now required to be have legal
qualifications,[200]
though not specifically knowledge of canon
law.[201]
The
loss of jurisdiction in the course of the nineteenth century was a consequence
of the intellectual weakness into which the ecclesiastical
law had sunk. This
was encouraged by the common law. This was not, as in the sixteenth century, by
directly confronting the Church
courts. It was rather by working in conjunction
with the Church courts. Till the Civil Wars the two systems had operated largely
independently, now they were motivated by a sense of common purpose.
Co-operation led to the intellectual assimilation of the jurisprudence
of Church
courts and common law courts. This, and the increasingly limited business
conducted in such courts, was to lead to the
loss of a professional
Bar.[202]
The
future is not at all bleak however. The ecclesiastical lawyer may once more be
on the rise. The Ecclesiastical Law Society was
established in 1987 with a view
to the education of office bearers, practitioners in ecclesiastical courts and
others; the enlargement
of knowledge of ecclesiastical law among laity and
clergy of the Anglican Communion; and assistance in matters of ecclesiastical
law to the General Synod, Convocations, bishops, and Church
dignitaries.[203]
With the revision of the canons of the Church of England, new legislative
machinery, and the example of the Roman Catholic canon law,
there is a need for
a new profession of ecclesiastical lawyers, trained in the common law, but able
to apply their skills in the
Church courts. The new society seems well able to
encourage the revival of ecclesiastical law in the Church of England in
particular.[204]
The
dis-establishment of the Church in Wales led to a reappraisal of the place of
law within the Church; such a reappraisal seems
possible in England without
dis-establishment. For it was not the Reformation subordination of the Church
courts to the authority
of the Crown which weakened them, but the subsequent
loss of intellectual vigour and independence. This independence was recently
been re-asserted in the judgment of the Court of Ecclesiastical Causes Reserved
in In re St Stephen's,
Walbrook,[205]
not in its being any less an element of the establishment, but in its less
legalist, more theological
decision-making.[206]
*LLM(Hons) PhD, Barrister of the High Court of New Zealand, the State of South Australia, the Supreme Court of Tasmania, and of the Supreme Court of New South Wales, Lecturer in Law at the Auckland University of Technology.
1 The long title of the Measure is “a Measure
passed by The National Assembly of the Church of England to reform and
reconstruct
the system of ecclesiastical courts of the Church of England, to
replace with new provisions the existing enactments relating to
ecclesiastical
discipline, to abolish certain obsolete jurisdictions and fees, and for purposes
connected
therewith”.
[2] Consistory
Courts in each diocese (under Chancellors, who may serve in more than one see),
and the Arches Court and the Chancery
Court of York (under the Dean of the
Arches and the Auditor respectively, offices which are, however, held
concurrently by the one
individual). The Arches Court and the Chancery Court of
York have four other judicial officers, two in holy orders appointed by the
prolocutor of the Lower House of Convocation of the relevant province, and two
laymen appointed by the Chairman of the House of Laity
after consultation with
the Lord Chancellor with respect, inter alia, to their judicial experience;
Ecclesiastical Jurisdiction Measure
1963 ss 3(2)(b),
(c).
[3] Two of the
five judges appointed by Her Majesty the Queen must be or have held high
judicial office (as defined by s 25 of the Appellate
Jurisdiction Act 1876 (39
& 40 Vict c 59)) and be a communicant; three must be or have been diocesan
bishops; Ecclesiastical
Jurisdiction Measure 1963 s
45(2).
[4] Ecclesiastical
Jurisdiction Measure 1963 s 1(3)(d). The permanent committee of the
Queen’s Most Honourable Privy Council, to which appeals to the Queen are
referred for hearing
and judgment. This was established on permanent footing in
1833; Judicial Committee Appeals Act 1833 (3 & 4 Will IV c 41); The
Ecclesiastical Jurisdiction Measure 1963 makes the theoretical nature of such
appeals clear: “s 1(3)(d). Her Majesty in Council
shall have such
appellate jurisdiction as is conferred on Her by this
Measure”.
[5] These
would comprise four diocesan bishops, and the Dean of the Arches; Ecclesiastical
Jurisdiction Measure 1963 ss 35,
36(a).
[6] Ecclesiastical
Jurisdiction Measure 1963 s 1(3)(c); Revised Canons Ecclesiastical, Canon G1
para. 4. These would comprise three Lords
of Appeal (being communicants), and
two Lords Spiritual sitting as Lords of Parliament; Ecclesiastical Jurisdiction
Measure 1963
s
11(4).
[7] This
opposition found expression in a succession of commissions which advocated a new
joint appeal court to replace the Judicial
Committee of the Privy Council;
Report of the Archbishops' Commission, Commission on Ecclesiastical
Courts (London: HMSO, 1883), lvi-lviii; Report of the Commission, Royal
Commission on Ecclesiastical Discipline (London: HMSO, 1906), 67, 77, 78;
Report of the Archbishops' Commission, Commission on Ecclesiastical
Courts (London: HMSO, 1926), ss 26-46; Report of the Archbishops'
Commission, Church and State (London: SPCK, 1935), 68-71; Report of the
Archbishops' Commission, The Canon Law of the Church of England (London:
SPCK,
1947).
[8] Examples
include Ridsdale v Clifton (1877) 2 PD 276, PC; Liddell v
Westerton (1856) 5 WR 470, PC In the former, the correctness of the decision
of the Judicial Committee was challenged in light of subsequent historical
research;
Report of the Royal Commission, Royal Commission on Ecclesiastical
Discipline (London: HMSO, 1906) (cd 3040) para.
41.
[9] The combined
effect of the Thirty-Nine Articles of Religion (1562, confirmed 1571);
Statute of Appeals 1532 (24 Hen VIII c 12); Act of Submission of the Clergy 1533
(24 Hen VIII c 19); Appointment
of Bishops Act 1533 (24 Hen VIII c 20);
Ecclesiastical Licences Act 1533 (24 Hen VIII c 21); Act of Uniformity 1551 (5
& 6 Edw
VI c 1); Act of Uniformity 1558 (1 Eliz I c 2); Act of Uniformity
1662 (14 Chas II c 4) and similar
legislation.
[10] The
combined effect of the Statute of Appeals 1532 (24 Hen VIII c 12);
Ecclesiastical Licences Act 1533 (24 Hen VIII c 21); Act of
Supremacy 1534 (26
Hen VIII c 1) and later legislation. Once appointed, an ecclesiastical judge
derives his or her authority not
from their bishop, but from the law, and is
charged, like in all manner to all the Queen’s judges, with hearing and
determining
impartially causes in which the bishop or the Crown may have an
interest; Bishop of Lincoln v Smith [1726] EngR 473; (1668) 1 Vent 3; 86 ER 3; ex parte
Medwin [1853] EngR 183; (1853) 1 E & B 609; 118 ER
566.
[11] Which is
of predominantly canon and civil law origin, though not uninfluenced even in the
earliest times by the developing common
law in the king’s courts;
Caudrey’s Case [1572] EngR 75; (1591) 5 Co Rep 1a; 77 ER 1; Ecclesiastical Licences
Act 1533 (24 Hen VIII c 21), preamble (now mainly repealed); Attorney-General
v Dean and Chapter of Ripon Cathedral [1945] Ch 239; [1945] 1 All ER
479.
[12] Alfred
Denning, “The meaning of ‘Ecclesiastical Law’” (1944)
60 LQR 236. The end of the temporal law is to punish the outward man;
that of the ecclesiastical law, being spiritual, is to reform the inward
man;
Caudrey’s Case [1572] EngR 75; (1591) 5 Co Rep 1a, 6; 77 ER
1.
[13] The
Consistory Courts, the Arches Court, and the Chancery Court of York may be
classified as the former. The Chancellor of a diocese
is appointed by letters
patent of the bishop (who may himself sit if he so wishes), although the Lord
Chancellor must be consulted
before any appointment is made; Ecclesiastical
Jurisdiction Measure 1963 s 2(1), (2). The Dean of the Arches is appointed by
the
archbishops of Canterbury and York acting jointly, with the Queen’s
approval signified by warrant under the sign manual; Ecclesiastical
Jurisdiction
Measure 1963 s 3(2)(a); Revised Canons Ecclesiastical, Canon G3 para.
2a.
[14] The strict
injunction issued by Henry VIII in October 1535 forbad the study of canon law in
the universities; See DR Leader, The History of the University of
Cambridge (Cambridge: Cambridge University Press, 1988), i, 332-333; P
Hughes, The Reformation in England (New York: Macmillan, 1963), 239; RH
Helmholz, Roman Canon Law in Reformation England (Cambridge: Cambridge
University Press, 1990), 152-153. As a consequence even the civil law faculties
suffered a decline; JL Barton,
“The Faculty of Law” in James
McConica (ed), The History of the University of Oxford (Oxford:
Clarendon Press, 1986), iii, 271-272; Thomas Fuller, The History of the
University of Cambridge Marmaduke Prickett and Thomas Wright (eds)
(Cambridge: J & JJ Deighton, 1840),
225.
[15] It could
also be said that the civil and canon laws were so interdependent by 1600 that
they could scarcely be pulled apart: “Ius canonicum et civile sunt adeo
connexa, ut unum sine altero vix intelligi possit” -Petrus Rebuffus,
“Tractatus de nominationibus”, Quaest 5, no.15, in Tractatus
univeri iuris (1584-1600), xv, part 2, fols
301-339.
[16] In
the early nineteenth century many judges were clerics, lacking the experience
and training necessary for judicial office- indeed
until the Ecclesiastical
Jurisdiction Measure 1963 they simply had to be “learned in the civil and
ecclesiastical laws and
at least a master of arts or bachelor of law, and
reasonably well practised in the course thereof”; Canons Ecclesiastical
(1603)
127 (revoked); See Report of the Archbishops' Commission, The
Ecclesiastical Courts (London: SPCK, 1954), 9-13. There is no requirement
that an ecclesiastical judge be a cleric, though they sometimes are. The
prohibition
on men in holy orders being barristers largely prevented clergymen
from assuming the judicial office; nor did the effective ban on
them being
admitted as advocates of the ecclesiastical Bar help; see R v Archbishop of
Canterbury [1807] EngR 141; (1807) 8 East 213; 10 ER
323.
[17] Sir
William Blackstone, Commentaries on the laws of England E Christian (ed)
(New York: Garland Publishing, 1978), iii, 64,
65.
[18] Report of
the Archbishops' Commission, The Ecclesiastical Courts (London: SPCK,
1954),
1.
[19] Felix
Makower, Constitutional History and Constitution of the Church of England
(London: S Sonnenschein & Co, 1895), 384; Report of the Archbishops'
Commission, The Ecclesiastical Courts (London: SPCK, 1954),
1-22.
[20] Gillian
Evans, “Lanfranc, Anselm and a New Consciousness of Canon Law in
England” in Norman Doe, Mark Hill & Robert
Ombres (eds), English
Canon Law (Cardiff: University of Wales Press, 1998),
11.
[21] C Morris,
“William I and the Church Courts” (1967) 324 English Historical
Review 449-463,
451.
[22] See
William Holdsworth, History of English Law (London: Sweet & Maxwell,
1972), i,
614ff.
[23] Until
the Matrimonial Causes Act 1857 (20 & 21 Vict c 85). In Ireland,
ecclesiastical courts lost their matrimonial jurisdiction
only under the
Matrimonial Causes and Marriage Law (Ireland) Amendment Act 1870 (33 & 34
Vict c 110), and the jurisdiction survived
until 1884 in the Isle of Man, the
diocese of the bishop of Sodor and
Man.
[24] Until the
Matrimonial Causes Act 1857 (20 & 21 Vict c
85).
[25] Until the
Court of Probate Act 1857 (20 & 21 Vict c 77). The Poor (Burials) Act 1855
(18 & 19 Vict c 79) had the same effect
in
Ireland.
[26] This
leads to the civil law, and to some extent the canon law also, having a
continuing influence upon the development of the common
law (and even statute
law) in these areas of law; Thomas Scrutton, The influence of the Roman Law
on the Law of England (Cambridge: Cambridge University Press, 1885),
163-169.
[27] The
pope’s powers as a temporal sovereign are recognised in the Roman Catholic
Code of Canon Law 1983. In practice matters
of education are dealt with though
the administrative hierarchy of the Church, rather than through that of Vatican
City State, the
residual part of the Papal
States.
[28]
Bologna began as a law school but widened its scope to become a true
universitas litterarum. The University of Bologna remains, probably the
oldest still
extant.
[29] R v
Chancellor of St Edmundsbury and Ipswich Diocese, ex parte White [1947] KB
263, [1946] 2 All ER 604, affirmed [1948] 1 KB 195, [1947] 2 All ER 170
(CA).
[30] William
Holdsworth, History of English Law (London: Sweet & Maxwell, 1972),
9. Cf Richard Burn, Ecclesiastical Law (London: T Cadell, 1781), i, 57,
in which he claims there was appeal for failure of justice to the king in his
court of nobles. It
is instructive that the hierarchical system was copied by
the king’s courts from the ecclesiastical courts; Theodore Plucknett,
A
Concise History of the Common Law (London: Butterworth, 1956),
387-388.
[31] Richard
Burn, Ecclesiastical Law (London: T Cadell, 1781), 58. These were at the
instigation of Henri de Blois, bishop of Winchester and papal legate; GIO
Duncan,
The High Court of Delegates (Cambridge: Cambridge University
Press, 1971),
2.
[32] Felix
Makower, Constitutional History and Constitution of the Church of England
(London: S Sonnenschein & Co, 1895),
225-227.
[33] Such
as that of King Henry VIII and Queen Catherine of
Aragon.
[34] Felix
Makower, Constitutional History and Constitution of the Church of England
(London: S Sonnenschein & Co, 1895),
225-227.
[35]
Indeed, until the Reformation, the Church and State were essentially
indivisible, or, rather, each was an aspect of the whole; see
e.g. Thomas Glyn
Watkin, “Vestiges of Establishment: The Ecclesiastical and Canon Law of
the Church in Wales” (1990)
2 Ecclesiastical LJ
110.
[36] For
example, legislation of Edward III and Richard II; Suing in foreign courts Act
1352 (27 Edw III st 1 c1); Suits in spiritual
courts Act 1377 (1 Ric II c
13).
[37] Constitution
VIII, William Stubbs, Select Charters and other illustrations of English
constitutional history (London: Clarendon Press, 1913),
133.
[38] Precepto.
[39] See
the Report of the Archbishops' Commission, Commission on Ecclesiastical
Courts (London: HMSO, 1883), i, 'Hist App',
i.
[40] A situation
today covered by the writ of mandamus, available from the Queen’s
Bench Division; Ecclesiastical Jurisdiction Measure 1963 s
83(2)(c).
[41] The
precise nature of the legal relationship between pre-Reformation canon and
common law is disputed. It is not certain, in particular,
whether the canon law
was binding in England ipso facto, or only if admitted by domestic
councils or similar means; See JW Gray, "Canon Law in England: some Reflections
on the Stubbs-Maitland
Controversy" in Studies in Church History (Leiden:
Brill, 1964), iii,
48.
[42] 24 Hen
VIII c 12; Parham v Templar (1821) 3 Philllim 223, 241 et seq; 161 ER
1307.
[43] 24 Hen
VIII c 12.
[44] 25
Hen VIII c
19.
[45] Petitions
for default of justice originally lay to the king. But, being unable to hear all
causes in person, he usually left the
Council to hear and determine the matter
and advise him. The Chancellor, as the principal officer, and one originally
versed in the
laws spiritual and temporal, later undertook this delegated task
alone. See William Holdsworth, History of English Law (London: Sweet
& Maxwell, 1972), i, 395-476; v, 215-338; ix, 335-408; xii, 178-330,
583-605.
[46] Re
Gorham, Bishop of Exeter, ex parte Bishop of Exeter [1850] EngR 18; (1850) 10 CB 102; 138 ER
41.
[47] Act of
Supremacy 1534 (26 Hen VIII c 1); repealed by the See of Rome Act 1554 (1-2 Phil
& Mar c 8); confirmed by the Act of Supremacy
1558 (1 Eliz I c
1).
[48] Trained in
the civil law, as well as the ecclesiastical or canon law, they were normally
recruited from the Advocates of Doctors’
Commons; George Squibb,
Doctors' Commons (Oxford: Clarendon Press, 1977),
31.
[49] RH
Helmholz, Roman Canon Law in Reformation England (Cambridge: Cambridge
University Press, 1990),
38.
[50] The
archdeacons' courts were only finally abolished in 1963, and remained active to
the late eighteenth century; Ecclesiastical Jurisdiction
Measure 1963 ss
82(2)(a), 83.
[51]
This was, of course, an ironic twist given that papal authority had been
extended and reinforced throughout Western Christendom
through the work of the
great lawyer-popes and the canonists and
civilians.
[52] For
a modern edition see The Reformation of the Ecclesiastical Laws as attempted
in the reigns of King Henry VIII, King Edward VI, and Queen Elizabeth E
Cardwell (ed) (London: Miscellaneous Public Documents,
1850).
[53] Act of
Submission of the Clergy 1533 (25 Hen VIII c
19).
[54] “Ecclesiastical
law is part of the law of the land: Mackonochie v Lord Penzance (1881) 6
App Cas P 424, 446. The law is one, but jurisdiction as to its enforcement is
divided between the ecclesiastical courts
and the temporal courts. When a matter
of general law arises incidentally for consideration in a case before an
ecclesiastical court,
that court is bound to ascertain the general law and order
itself accordingly; and where a matter depending on ecclesiastical law
finds a
place in a cause properly before the temporal courts those courts similarly will
ascertain for themselves the ecclesiastical
law and apply it as part of the law
they administer”.
-Attorney-General v Dean and Chapter of Ripon
Cathedral [1945] Ch 239, 245 per Uthwatt
J.
[55] The
ecclesiastical law of England consists of the general principles of the ius
commune ecclesiasticum (Ever v Owen Godbolt’s Report 432, per
Whitlock J); foreign particular constitutions received by English councils or so
recognised by English
courts (secular or spiritual) as to become part of the
ecclesiastical custom of the realm; and the constitutions and canons of English
synods. The Submission of the Clergy Act 1533 (25 Hen VIII c 19) provided that
only the canon law as it then stood was to bind the
clergy and laity, and only
so far as it was not contrary to common and statute law, excepting only the
papal authority to alter the
canon law, a power which ended in later in 1533,
when it was enacted that England was “an Empire governed by one supreme
head
and king” (Appointment of Bishops Act 1533 (25 Hen VIII c 20)). New
canon law could only be created by Act of Parliament, and
now by Measure, under
the Church of England Assembly (Powers) Act 1919 (9 & 10 Geo V c
76).
[56] The
influence of Erastianism thought was less pronounced than the belief of the
common lawyers in their own correctness and ability
to settle all matters
spiritual and lay. See JH Baker, Introduction to English Legal History
(London: Butterworth, 1979),
92-95.
[57] RG
Usher, The Rise and Fall of the High Commission (Oxford: Clarendon Press,
1913). Usher is now known to be wrong on the origins, history and functions of
the High Commission, but
remains a useful reference
source.
[58] 26 Hen
VIII c
1.
[59] “From
Edmund Bonner’s commission as bishop of London, 1538”, reprinted in
Sir Geoffrey Elton, The Tudor Constitution (Cambridge: Cambridge
University Press, 1982),
367-368.
[60] Act
of Supremacy 1534 (26 Hen VIII c
1).
[61] GIO
Duncan, The High Court of Delegates (Cambridge: Cambridge University
Press,
1971).
[62] 1 Eliz
c 1.
[63] Article
37, “Of the Civil Magistrate”: The King’s Majesty hath the
chief power in this Realm of England, and other
his Dominions, unto whom the
chief Government of all Estates of this Realm, whether they be Ecclesiastical or
civil, in all causes
doth appertain, and is not, nor ought to be, subject to any
foreign Jurisdiction
...”.
[64] This
is shown in the change of style of the tribunal from “High
Commission” by 1570, to “Court” by
1580.
[65] Including
15 clergy, 5 Ministers of the Crown, 3 civilians, and a common lawyer; RG Usher,
The Rise and Fall of the High Commission (Oxford: Clarendon Press, 1913),
90.
[66] Including
46 clergy, 37 Privy Counsellors and dignitaries, 10 civilians, and 15 common
lawyers; RG Usher, The Rise and Fall of the High Commission (Oxford:
Clarendon Press, 1913),
255.
[67] RG Usher,
The Rise and Fall of the High Commission (Oxford: Clarendon Press, 1913),
90.
[68] RG Usher,
The Rise and Fall of the High Commission (Oxford: Clarendon Press, 1913),
255.
[69] The
ending of the teaching of canon law in the universities did not of course end
the study of this system of law, as the members
of Doctors' Commons preserved
the ancient
learning.
[70]
Though its jurisdiction was limited; the Elizabethan Act establishing the Court
had provided that it was to regard as heresy nothing
that was not expressly
denounced as such in the plain words of Scripture, by the first four general
councils, and by Parliament with
the concurrence of the two convocations; Act of
Supremacy 1558 (1 Eliz I c 1) s 36; Case of Heresy [1572] EngR 395; (1601) 12 Co Rep 56;
77 ER 1335; Ecclesiastical Jurisdiction Act 1677 (29 Chas II c 9); Sir Robert
Phillimore, The Ecclesiastical Law of the Church of England eds Sir
William Phillimore and CF Jemmett (London: 2nd ed,
Sweet & Maxwell, 1895), i, 842.
[71] Abolition of
High Commission Court Act 1640 (16 Chas I c 11) and the Clergy Act 1640 (16 Chas
I c 27), confirmed by ss 3, 4 of the
Ecclesiastical Jurisdiction Act 1661 (13
Chas II st 1 c 12). It was revived briefly 1686-88, and finally suppressed by s
1 the Bill
of Rights 1688 (1 Will & Mar sess 2 c 2), which declared King
James II’s Court of Commissioners (under which title the
Court of High
Commission was revived) was illegal and
pernicious.
[72]
The Restoration ecclesiastical judiciary was marked by an intellectual
rapproachment between church and State; Robert Rodes, Law and Modernization
in the Church of England (Notre Dame: University of Notre Dame Press, 1991),
13; For the politics of the Restoration see Robert Bosher, The Making of the
Restoration Church Settlement (Westminster: Dacre Press, 1951) 143-217 and A
Whiteman, "The Reestablishment of the Church of England, 1660-1663" (1955)
Transactions
of the Royal Historical Society (5th
series), v,
111.
[73] See Rt
Revd Edward Stillingfleet, Irenicum- A Weapon-Salve for the Church's Wounds
or the Divine Right of Particular Forms of Church Government (London: 1659,
2nd ed 1662) in Works (London: 1709),
ii.
[74] Book
of Common Prayer (1662), backed by the Act of Uniformity 1662 (14 Chas II c
4).
[75] The good
inherent in uniformity, in distinction to the good in any liturgical or
doctrinal uniformity, was stressed in Hugh Davis,
De Jure Uniformitatis
Ecclesisticae (London: 1669).
[76] Robert
Rodes, Law and Modernization in the Church of England (Notre Dame:
University of Notre Dame Press, 1991),
5.
[77] Rt Revd
Edward Stillingfleet, Ecclesiastical Cases, Part II in
Works (London: 1709); Discourse I in Works (London: 1709),
iii, 742.
[78]
Judges and counsel were at pains to adjust their various precedents to this
end, see, for example, Slater v Smalebrooke [1714] EngR 651; (1665) 1 Sid 27; 82 ER
1066.
[79] Robert
Rodes, Law and Modernization in the Church of England (Notre Dame:
University of Notre Dame Press, 1991),
10-14.
[80] By
1753 the Court of Arches could recognise it as res judicata; Pattern v
Castleman [1753] EngR 86; (1753) 1 Lee 387; 161 ER 143. The Court also decided that
ecclesiastical courts would try customs according to common law
rules.
[81] See,
for illustration, the writings of ecclesiastical lawyers of the post-Restoration
period (the term canonists is probably a misnomer);
Rt Revd Edmund Gibson,
Codex Juris Ecclesiasticici Anglicani (London: 1713); John Aylliffe,
Parergon Juris Canonici Anglicani, or, a commentary, by way of supplement to
the Canons and Constitutions of the Church of England,
etc (London:
privately published, 1727); Richard Burn, Ecclesiastical Law (London: A
Millar, 1763). Within the courts themselves, a similar broad-minded approach was
also clear; DaCosta v Villareal (1753) 2 Strange 961; 93 ER 968;
Phillips v Crawley (1673) 1 Freeman 83; [1826] EngR 449; 89 ER
61.
[82] Robert
Rodes, Law and Modernization in the Church of England (Notre Dame:
University of Notre Dame Press, 1991),
14.
[83] The
combined effect of the Statute of Appeals 1532 (24 Hen VIII c 12);
Ecclesiastical Licences Act 1533 (24 Hen VIII c 21); Act of
Supremacy 1534 (26
Hen VIII c 1) and later
legislation.
[84] Act
of Supremacy 1534 (26 Hen VIII c
1).
[85]
Judices
delegati.
[86] Submission
of the Clergy Act 1533 (25 Hen VIII c 19). For the history of the Court of
Delegates see Sir William Blackstone, Commentaries on the laws of England
E Christian (ed) (New York: Garland Publishing, 1978), iii, 66; William
Holdsworth, History of English Law (London: Sweet & Maxwell, 1972),
i, 603-605; GIO Duncan, The High Court of Delegates (Cambridge: Cambridge
University Press,
1971).
[87] GIO
Duncan, The High Court of Delegates (Cambridge: Cambridge University
Press, 1971).
[88]
Henry Stephen, New Commentaries on the Laws of England (New York:
Garland Publishing, 1979), iii,
432-433.
[89] The
Sovereign has been held to be a canon or prebendary of St David’s
Cathedral, Pembrokeshire, Wales. This is clearly however
the result of confusion
between ownership of the temporality and personal spiritual authority. In some
respects however the Sovereign
may be seen as a quasi-religious person. This is
seen in the ceremonial of the coronation- particularly the anointing, and in the
royal robes and vestments; Percy Schramm, The History of the English
Coronation (Oxford: Clarendon Press,
1937).
[90] Some
formal shape was given to the court by the Submission of the Clergy Act 1533 (25
Hen VIII c 19) and the Act of Supremacy 1558
(1 Eliz I c
1).
[91] GIO
Duncan, The High Court of Delegates (Cambridge: Cambridge University
Press, 1971), 173; Countess of Essex v Earl of Essex (1613) 2 St Tr 786,
828.
[92] Nor was
it a court of record, a court whose acts and judicial proceedings are enrolled
for a perpetual memorial and testimony; Sir
William Blackstone, Commentaries
on the laws of England E Christian (ed) (New York: Garland Publishing,
1978), iii, 24. No court can fine or imprison which is not a court of record;
Godfrey’s Case [1572] EngR 310; (1614) 11 Co Rep 42a, 43b; [1572] EngR 310; 77 ER
1199.
[93] For the
procedure of the court see GIO Duncan, The High Court of Delegates
(Cambridge: Cambridge University Press, 1971),
81-177.
[94] Report
of the Archbishops' Commission, The Practice and Jurisdiction of the
Ecclesiastical Courts of England and Wales (London: HMSO, 1831-32) (cmd
199), part xxiv,
p1.
[95] Judicial
Committee Appeals Act 1833 (3 & 4 Will IV c
41).
[96] The rule
that precedents set by earlier court decisions must be followed where
applicable.
[97]
WL Mathieson, English Church Reform, 1815-1840 (London: 1928),
156.
[98] Though
some judgments, such as Gorham, were a blow to the High and Low
Churches alike; Robert Rodes, Law and Modernization in the Church of England
(Notre Dame: University of Notre Dame Press, 1991),
274.
[99] 3 & 4
Vict c
86.
[100] 39
& 40 Vict c
59.
[101] Appellate
Jurisdiction Act 1876 (39 & 40 Vict c 59); Order in Council dated 11
December 1865, Rules for Appeals in Ecclesiastical
and Maritime Causes, r
3.
[102] Robert
Rodes, Law and Modernization in the Church of England (Notre Dame:
University of Notre Dame Press, 1991), 259.
[103] Gorham
v Bishop of Exeter [1849] EngR 892; (1849) 2 Rob Ecc 1; 163 ER 1221 (Arches Ct); George
Brodrick and Revd WH Fremantle, A Collection of the Judgments of the Judicial
Committee of the Privy Council in Ecclesiastical Cases Relating to Doctrine and
Discipline
(London: 1865), 64 (PC 1850); JCS Nias, Gorham and the Bishop
of Exeter (London: SPCK,
1951).
[104]
Bishop of Salisbury v Williams (1862) 1 New Rep 196 (Arches Ct);
Fendall v Wilson (1862) 1 New Rep 213 (Arches Ct); Williams v Bishop
of Salisbury (1863) 2 Moo (NS) 375; [1863] EngR 748; 15 ER 943; George Brodrick and Revd WH
Fremantle, A Collection of the Judgments of the Judicial Committee of the
Privy Council in Ecclesiastical Cases Relating to Doctrine and Discipline
(London: 1865), 247
(PC).
[105] 37
& 38 Vict c
85.
[106] See PTM
Marsh, The Victorian Church in Decline: Archbishop Tait and the Church of
England (London: Routledge & Kegan Paul, 1969),
158-192.
[107]
Though in Pattern v Castleman [1753] EngR 86; (1753) 1 Lee 387; 161 ER 143 the Arches
Court held that ecclesiastical courts were to try custom according to common law
rules.
[108]
Robert Rodes, Law and Modernization in the Church of England (Notre
Dame: University of Notre Dame Press, 1991), 257; PTM Marsh, The Victorian
Church in Decline: Archbishop Tait and the Church of England (London: McGill
University Press, 1969),
229.
[109] W
Finlayson, History, Constitution and Character of the Judicial Committee of
the Privy Council (London: 1878) gives a good statement of the objection to
this tribunal. Sir Lewis Dibdin, Church Courts (London: Hatchards, 1881)
contains a defence.
[110] Rodes
refutes Bowen's contention that the objectionable decisions of the Judicial
Committee were attributable to the lack of canonical
learning among the common
judges who sat. Robert Rodes, Law and Modernization in the Church of England
(Notre Dame: University of Notre Dame Press, 1991), 286, 449n; Desmond
Bowen, The Idea of the Victorian Church (Montreal: McGill University
Press, 1968),
90-96.
[111] See
EG Wood, "Ecclesiastical Suits" in Orby Shipley (ed), Ecclesiastical Reform
(London: 1873), ch 6; Malcolm MacColl, Lawlessness, Sacerdotalism, and
Ritualism (London: 1875); Alexander Mackonochie, First Principles versus
Erastianism (London: 1876); Charles Lindley Wood, An Address delivered at
the annual meeting of the English Church Union held in the Freemasons' Tavern,
June 18, 1878 (London: English Church Union Office, 1878); W Finlayson,
History, Constitution and Character of the Judicial Committee of the Privy
Council (London: 1878); Charles Lindley Wood, The Just Limits of
Comprehension in the National Church (London: 1878); Richard Enragh, My
Ordination Oath (Birmingham: Cornish Bros, 1880); Coker Adams, The Church
and the Law (Rugby: Tait & Hopewell, 1881); Edward Pusey, Unlaw in
Judgements of the Judicial Committee, and its remedies (Oxford: Palmer &
Co, 1881).
[112]
Sir Lewis Dibdin, Church Courts (London: Hatchards, 1881),
Establishment in England (London: Macmillan,
1932).
[113] Ecclesiastical
Jurisdiction Measure
1963.
[114] Ecclesiastical
Jurisdiction Measure 1963 s
82(1).
[115] Ecclesiastical
Jurisdiction Measure 1963 ss 1(3)(b); 8(1); Revised Canons Ecclesiastical, Canon
G1, para. 5. The Judicial Committee has yet to hear any such
appeal.
[116] Pastoral
Measure 1968 s
8(2).
[117] Cathedrals
Measure 1963 s 3(8),
(9).
[118] Order
in Council 11 December
1865.
[119] For
the reasons for this exclusion, see the Report of the Archbishops' Commission,
The Ecclesiastical Courts (London: SPCK, 1954),
23-24.
[120] Examples
of such cases include Hebbert v Purchas (1872) LR 4 CP 301 and
Ridsdale v Clifton (1877) 2 PD 276, 331, PC, citing Westerton v
Liddell, Horne etc (1855) Moores Special Report, which held that only the
cope (for cathedral and collegiate Church dignitaries) and the surplice were
legal vestments, with a hood for deans and prebendaries. For a number of reasons
these judgments were never enforced. In Re Robinson, Wright v Tugwell
[1897] Ch 85, the Court of Appeal held that a post-Reformation usage may be
lawful if no objection to its legality can be found, so that a warrant
for the
use of a black gown for preaching was found in its user for several
centuries.
[121] Ecclesiastical
Jurisdiction Measure 1963 s
5.
[122] The Dean
of the Arches must be a barrister of ten years' standing, or high judicial
office; Ecclesiastical Jurisdiction Measure 1963
s 3(3); Revised Canons
Ecclesiastical, Canon G3, para.
3.
[123] Ecclesiastical
Jurisdiction Measure 1963 s
45(2).
[124] Re
St Michael and All Angels, Great Torrington [1985] Fam
81.
[125] Re
St Edburga’s, Abberton [1962] P10. The judges were Sir Hugh Forbes
(Queen’s Bench judge, and a former diocesan chancellor), Rt Hon Sir
Anthony Lloyd
(Court of Appeal judge), the Bishop of Rochester (Rt Revd Richard
Say), the Bishop of Chichester (Rt Revd Eric Kemp, a celebrated
canonist), and
Rt Revd Kenneth Woollcombe (former bishop of Oxford, and a leading theologian).
The judgment, which followed a single
hearing day, was read by Mr Justice
Forbes, who presided; Re St Michael and All Angels, Great Torrington
[1985] Fam
81.
[126] As
required by the Holy Table Measure 1964; canon F2 and Church of England (Worship
and Doctrine) Measure 1974; Re St Stephen’s, Walbrook [1987] Fam
146.
[127] The
judges were Rt Hon Sir Anthony Lloyd, the Bishop of Rochester, the Bishop of
Chichester, and Rt Revd Kenneth Woollcombe, and the
Rt Hon Sir Ralph Gibson (a
Court of Appeal judge who replaced Sir Hugh Forbes, who had died in the
interval); In re St Stephen's, Walbrook [1987] Fam 146 (Court of
Ecclesiastical Causes Reserved); Robert Rodes, Law and Modernization in the
Church of England (Notre Dame: University of Notre Dame Press, 1991) 278.
[128] The
judgment was contained in speeches of three of the five judges, including the
Bishop of Chichester, with the Bishop of Rochester
and the Rt Revd Kenneth
Woollcombe agreeing with the reasons given by Lord Justices Lloyd and Gibson,
and Bishop Kemp. In the House
of Lords all peers have the right to vote though
the last to do so was Lord Denman in Bradlaugh v Clarke (1883) 8 App Cas
354, HL. All members of the Judicial Committee of the Privy Council have the
right to give a judgment, though prelates
have not been members since the
Appellate Jurisdiction Act 1876 (39 & 40 Vict c
59).
[129]
Parallels may be drawn with the famous Lincoln Judgment, when the Archbishop of
Canterbury, personally hearing a cause, made greater
use of historical evidence
than the Judicial Committee of the Privy Council was wont to do; Ex parte
Read (1888) 12 PD 221; [1892] AC 644 (PC); Read v Bishop of Lincoln
(1889) 14 PD 88, 148; [1891] P9 (Archbishop); George Russell, Edward
King, Bishop of London (London: Smith, Elder & Co, 1912), 132-210.
[130] Ecclesiastical
Jurisdiction Measure 1963 s 9(2); Revised Canons Ecclesiastical, Canon G1, para.
2
b.
[131] Ecclesiastical
Jurisdiction Measure 1963 s 9(1); Revised Canons Ecclesiastical, Canon G1, para.
3
b.
[132] Ecclesiastical
Jurisdiction Measure 1963 s
35.
[133] Ecclesiastical
Jurisdiction Measure 1963 s
36(a).
[134] Ecclesiastical
Jurisdiction Measure 1963 s 11(1),
(2).
[135] Ecclesiastical
Jurisdiction Measure 1963 s 1(3)(c); Revised Canons Ecclesiastical, Canon G1
para.
4.
[136] Ecclesiastical
Jurisdiction Measure 1963 s 11(4). This requirement has not been affected by the
reforms to the House of Lords, as
the bishops have retained their seats.
However, further reforms are likely, and the prelates may follow the hereditary
peers out
of the House.
[137] Ecclesiastical
Jurisdiction Measure 1963 s 48(5),
(6).
[138] Section
1 (3)(c) makes the ad hoc nature of the Commissions of Review quite unoquivocal:
“there may, in accordance with the
provisions in that behalf of this
Measure, be appointed by Her Majesty commissioners who shall have such
jurisdiction as is conferred
on them by this measure with respect to the review
of findings of any commission of Convocation appointed under paragraph (b) of
the last foregoing subsection and paragraph (a) of this subsection, and also of
the Court of Ecclesiastical Causes
Reserved”.
[139] Circumspecte
Agatis 1285 (13 Edw I stat Circ Agatis). This is an order to forbid an inferior
court from proceeding in a cause there
pending, suggesting that the cognisance
of it does not belong to that
court.
[140] Though
not certiorari, as the courts are unfettered within their jurisdiction; R v
Chancellor of St Edmundsbury and Ipswich Diocese, ex parte White [1948] 1 KB
195, [1947] 2 All ER 170 (CA). The order commanded that proceedings be removed
from an inferior court into a superior court for review. In this respect the
ecclesiastical
courts were not inferior to the High
Court.
[141] This
indirect control of the ecclesiastical courts was expressly preserved by the
Ecclesiastical Jurisdiction Measure 1963 s
83(2)(c).
[142] Mayor
of London v Cox (1867) LR 2 HL 239, 280 per Willes
J.
[143] Ecclesiastical
Jurisdiction Measure 1963 s 81(2); R v Daily Herald ex parte Bishop of
Norwich [1932] 2 KB
402.
[144] This
was lost in 1855; Ecclesiastical Courts Act 1855 (18 & 19 Vict c 41) s 1. In
Ireland the same effect was achieved by the
Ecclesiastical Courts Jurisdiction
Act 1860 (23 & 24 Vict c
32).
[145] Witchcraft
Act 1562 (5 Eliz I c 16); Sodomy Act 1562 (5 Eliz I c 17); Fraudulent
Conveyances Act 1571 (13 Eliz I c 5); Bankruptcy
Act 1571 (13 Eliz I c 7); Poor
Act 1575 (18 Eliz I c 3); Bigamy Act 1603 (1 Jac I c 11); Plays Act 1605 (3 Jac
I c 21).
[146]
The very term ecclesiastical law has been used to describe the laws of the
Church, including those enacted by the secular State,
in contrast to the canon
law, which is purely ecclesiastical in nature. See Thomas Glyn Watkin,
“Vestiges of Establishment”
(1990) 2 Ecclesiastical Law
Journal
110.
[147] Ecclesiastical
Courts Jurisdiction Act 1860 (23 & 24 Vict c 32) s
1.
[148] Ecclesiastical
Jurisdiction Measure
1963.
[149] The
principal activity of the Church courts is in the faculty jurisdiction; GH
Newsom, Faculty Jurisdiction of the Church of England (London: Sweet
& Maxwell, 2nd ed,
1993).
[150] Though
dissatisfaction with ecclesiastical courts appears to have been fairly general
at that time; Knight v Jones (1821) Records of the Court of Delegates
8/79 (for a letter of complaint contained within the cause
papers).
[151] Report
of the Archbishops' Commission, The Practice and Jurisdiction of the
Ecclesiastical Courts of England and Wales (London: HMSO, 1831-32), xxiv, 1.
For the question of adjusting common law and ecclesiastical precedents see
Burgoyne v Free (1825) 2 Add 405; 162 ER 343 (Arches Ct); Burgoyne v
Free [1830] EngR 396; (1830) 2 Hag Ecc 663; 162 ER 991 (Delegates), and Robert Rodes, Law
and Modernization in the Church of England (Notre Dame: University of Notre
Dame Press, 1991),
11-12.
[152] If
there is a conflict between ecclesiastical common law and secular common law,
ecclesiastical courts are not strictly bound by
the latter; Re St
Mary’s, Banbury [1985] 2 All ER 611, 615 per Boydell, Ch (Oxford
Consistory Court); R v Chancellor of St Edmundsbury & Ipswich Diocese ex
parte White [1948] 1 KB 195, 204 per Wrottesley LJ However, ecclesiastical
courts were citing common law cases from the seventeenth century; RH Helmholz,
Roman Canon Law in Reformation England (Cambridge: Cambridge University
Press, 1990),
188-195.
[153] Ecclesiastical
Courts Jurisdiction Act 1854 (17 & 18 Vict c
47).
[154]
Noble v Ahier (1886) 11 PD 158 (Ch York); but see Robert Rodes, Law
and Modernization in the Church of England (Notre Dame: University of Notre
Dame Press, 1991), 463,
fn81.
[155] The
writ de contumace capiendo was obsolete; Robert Rodes, Law and
Modernization in the Church of England (Notre Dame: University of Notre Dame
Press, 1991), 360. Imprisonment for contumacy by repealing the Ecclesiastical
Courts Act 1813
(53 Geo III c
127).
[156] Report
of the Archbishops' Commission, The Canon Law of the Church of England
(London: SPCK, 1947), 58; Report of the Archbishops' Commission, The
Ecclesiastical Courts (London: SPCK, 1954), 13, 27, 28. This was due, in no
small part, to the influence of Sir William Scott (later Lord Stowell), as
well
as to the growing influence of the common
lawyers.
[157] ss
45(3), 48(5),
(6).
[158] Re
Lapford (Devon) Parish Church [1955] 3 All ER 484; Stephenson v
Langston [1804] EngR 125; (1804) 1 Hag Con 379, 387 (Sir William Scott); Re St Mary, Tyne
Dock (No 2) [1958] P 156, 159; [1958] 1 All ER 1, 8, 9 (Deputy
Chancellor
Wigglesworth).
[159] Rector
& Churchwardens of Bishopwearmouth v Adey [1958] 3 All ER
441.
[160] Re
Rector & Churchwardens of St Nicholas, Plumstead [1961] 1 All ER
298.
[161] Statutes,
Decrees and Regulations of the University of Oxford (Oxford: Clarendon
Press, 1973), tit. IV s xiii,
4.
[162] Doctor
of Civil
Law.
[163] Doctor
of Laws (i.e. civil and
canon).
[164] Prior
to 1535 they required a degree in canon law or canon and civil law. In the
sixteenth century foreign degrees sufficed, though
advocates invariable also
sought incorporation at Oxford or Cambridge. The last advocate with a foreign
degree in civil law was Dr
Julius Caesar, DCL Paris 1586; George Squibb,
Doctors' Commons (Oxford: Clarendon Press, 1977), 31. After 1535 the
degree was taught at English universities solely in civil
law.
[165] Details
of the method are given in R v Archbishop of Canterbury [1807] EngR 141; (1807) 8 East
213; 10 ER
323.
[166] John
Aylliffe, Parergon Juris Canonici Anglicani, or, a commentary, by way of
supplement to the Canons and Constitutions of the Church of England,
etc
(London: privately published, 1726), 53 et seq; Richard Burn, Ecclesiastical
Law (London: T Cadell, 1781), i, 2-4. This was later was reduced to at least
four, and latterly only three years. It was not unusual
for would-be
practitioners to study civil law at the University of Paris for two years,
followed by a similar period studying canon
law at the University of Bologna;
The Laws of England (London: Butterworth, 1910), xi,
503n.
[167] IJ
Churchill, Canterbury Administration (London: Church Historical Society,
1933), i, 451. The so-called “year of
silence”.
[168] After
the incorporation of Doctors' Commons they had to be doctors of civil law of
Oxford or Cambridge. Some earlier members had
lacked this latter qualification,
such as Richard Zouche, 1618, who held only the BCL; George Squibb, Doctors'
Commons (Oxford: Clarendon Press, 1977),
30.
[169] George
Squibb, Doctors' Commons (Oxford: Clarendon Press,
1977).
[170] In
the period 1500-1750 some 460 lawyers practised or received permission to
practice in the Court of Arches. At their height there
were twelve to
twenty-four in practice, and a total of up to seventy; Brian Levach, “The
English Civilians, 1500-1750”
in Wilfred Prest (ed), Lawyers in Early
Modern Europe and America (London: Croom Helm, 1981), 108. In 1684 there
were 38 advocates “exercent” (of whom 19 were judges), in 1714 there
were
35 (15 judges); Edward Chamberlayne, Angliae Notitia, or the Second Part
of the Present State of England (London: J Martin, 1679),
289-290.
[171] There
was no real break in continuity due to the Reformation, though laymen who were
doctors only of civil law were now appointed
judges in the ecclesiastical
courts; Ecclesiastical Jurisdiction Act 1545 (37 Hen VIII c
17).
[172] Brian
Levach, “The English Civilians, 1500-1750” in Wilfred Prest (ed),
Lawyers in Early Modern Europe and America (London: Croom Helm, 1981),
109; Proctors were originally members, but were gradually excluded. The last
proctor was admitted 1569,
and their membership was officially ended 1570;
George Squibb, Doctors' Commons (Oxford: Clarendon Press, 1977),
24-25.
[173] Only
laymen could be members of the society. Membership was only made compulsory in
1570, though most advocates had been members
before this. Advocates in the
northern province were not required to be members of Doctors' Commons, and their
qualifications were
also less strict. Whereas all southern advocates were
doctors, advocates in York were usually merely bachelors of law. Unlike the
doctors, who tended to be based in London, the northern advocates served in the
consistory courts of English and Welch diocese; Brian
Levach, “The English
Civilians, 1500-1750” in Wilfred Prest (ed), Lawyers in Early Modern
Europe and America (London: Croom Helm, 1981),
110.
[174] 20
& 21 Vict c
77.
[175] s
40.
[176] s
41.
[177] 20
& 21 Vict c
85.
[178] s
15.
[179] 22
& 23 Vict c
6.
[180] This is
now obsolescent, having sat only once in 250 years; Blount’s Case
[1737] EngR 141; (1737) 1 Atk 295; 26 ER 189; Manchester Corp v Manchester Palace of Varieties
Ltd [1955] 2 WLR 440; [1955] 1 All ER 387; [1955] P
133.
[181] 22
& 23 Vict c
6.
[182] s
116.
[183] s
117.
[184] R v
Hughes [1828] EngR 400; (1828) 7 B. & C. 708, 717; [1828] EngR 400; 108 ER
888.
[185] The
corporation ceased to be collegiate on the death in 1904 of Dr Jenner-Fust,
admitted 1835; Who Was Who, 1897-1916 (London: Adam & Charles Black,
1953),
378.
[186] Mouncey
v Robinson (1867) 37 LJ Ecc 8; cf Marson v Unmack [1923] P 163, 165;
Manchester Corporation v Manchester Palace of Varieties Ltd [1955] WLR
440, 449 per Lord Goddard (Court of
Chivalry).
[187] Like
the attorneys, they were domini litis rather than merely spokesmen;
Obicini v Bligh [1832] EngR 543; (1832) 8 Bing 335, 352 per Tindal, CJ. They were
ultimately housed in Doctors' Commons. Prior to 1570, when membership of
Doctors' Commons was made
compulsory for advocates, some proctors had been
members; JH Baker, “The English Legal Profession 1450-1550”, in
Wilfred
Prest (ed), Lawyers in Early Modern Europe and America,
London: Croom Helm, 1981),
24.
[188] Brian
Levach, “The English Civilians, 1500-1750” in Wilfred Prest (ed),
Lawyers in Early Modern Europe and America (London: Croom Helm, 1981),
110. The period of articles required was seven years; Harry Kirk, Portrait of
a Profession. A History of the Solicitor’s Profession, 1100 to the Present
Day (London: Oyez Publishing, 1976),
20.
[189] The
procedure is explained in R v Archbishop of Canterbury [1807] EngR 141; (1807) 8 East 213;
10 ER
323.
[190] They
were never very numerous, there being some ten in practise in the Court of
Arches, another eight in York, and smaller numbers
at other consistory courts.
The number was limited in 1696 to 34, with additional supernumeraries; Harry
Kirk, Portrait of a Profession. A History of the Solicitor’s
Profession, 1100 to the Present Day (London: Oyez Publishing, 1976), 20. In
1707 there were 24 proctors, of whom only 7 practised in the Court of Chivalry.
In 1737 there
were only 14 proctors, and only 4 by 1756; Edward Chamberlayne,
Angliae Notitia, or the Second Part of the Present State of England
(London: J Martin, 1679), 168, 183; George Squibb, The High Court of
Chivalry: A Study of the Civil Law in England (Oxford: Clarendon Press,
1959), 118, from John Chamberlayne, Magnae Britanniae Notitia (London: D
Midwinter, 1718, 1727, 1728, 1741,
1745).
[191] s
42.
[192] s
43.
[193] s
15.
[194] 22
& 23 Vict c
6.
[195] s 17;
Now the Solicitors Act 1957 s
2(1)(d).
[196]
The valuable library of Doctors' Commons was sold
1861.
[197] In
Erastian terminological understanding, dominant since the Revolution of 1688,
this supremacy was of the monarch as head of State,
rather than personally. The
idea that it was a personal supremacy of the monarch was not even mooted again
till the time of Victoria;
Sir Lewis Dibdin, Church Courts (London:
Hatchards, 1881), Establishment in England (London: Macmillan, 1932),
51-52. This position has been much misunderstood since, particular in the Church
overseas.
[198] Strictly
speaking, no secular court was part of the hierarchy at any stage, the Judicial
Committee of the Privy Council being merely
advisers to the Queen in Counsel;
See now the Ecclesiastical Jurisdiction Measure 1963 s
1(3)(d).
[199] Both
provincial courts are bound by decisions of the Judicial Committee of the Privy
Council, though the Court for Ecclesiastical
Causes Reserved and Commissions of
Review are not bound by decisions of the Judicial Committee on matters of
doctrine, ritual, and
ceremonial; Ecclesiastical Jurisdiction Measure 1963 s
48(6).
[200] The
Chancellor is appointed by letters patent of the Bishop, to be the Official
Principal and Vicar-General of the bishop, who may
himself sit if he so wishes.
The Chancellor must be over 30 years of age, a lawyer of seven years' standing
or who has held high
judicial office, and a communicant of the Church.
Appointment is only after consultation with the Lord Chancellor, and the Dean of
the Arches and Auditor; Ecclesiastical Jurisdiction Measure 1963 s 2(1), (2).
The Chancellor is oculus episcopi and has second rank in the diocese,
save the precedence of the Dean within his cathedral; See John Godolphin,
Repertorium Canonicum, or an abridgement of the ecclesiastical law of the
Realm, consistent with the Temporal, etc (London: privately published,
1678),
85.
[201] Ecclesiastical
judges were required to have a degree in canon law until 1545 (Ecclesiastical
Jurisdiction Act 1545 (37 Hen VIII c
17)), thereafter they only had the
doctorate in civil law; Report of the Archbishops' Commission, The Canon Law
of the Church of England (London: SPCK, 1947),
52.
[202] In the
Roman Catholic Church, priests study canon law for a year, as part of their
training. The canon law (and the wider ecclesiastical
law) in the Church of
England has a narrower scope and coverage. But, even allowing for this, there
was, until quite recently, little
effort taken to produce a body of trained
canonists or ecclesiastical lawyers since the demise of Doctors'
Commons.
[203] The
University of Wales at Cardiff has offered for some years a LLM degree in canon
law. This is designed for legal practitioners
but also for others such as clergy
who may have cause to resort to the ecclesiastical law. Despite the title, the
degree is not confined
to the canon law per se, but covers ecclesiastical law in
its wider
definition.
[204] There
has been much recent work towards a systematic jurisprudence, notably including
Norman Doe's Canon Law in the Anglican Communion (Oxford: Clarendon
Press,
1998).
[205]
[1987] Fam
146.
[206] That
canon law and theology are distinct though interrelated is important; Teodoro
Jiménez Urresti, "Canon Law and Theology:
Two Different Sciences" (1967)
8 (3) Concilium 10.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/ALRS/2002/1.html