LIST OF ABBREVIATIONS
CHAPTER I
GENERAL LEGAL POSITION
[1]. In every country where a Christian Church is permitted to exist, the power and authority of her clergy to exercise their functions will rest upon a triple basis and be subject to twofold restrictions and limitations. In the first place, (i.) they derive their spiritual authority from their ordination, and this authority is independent of the particular Church to which they belong. But, in the next place, they are bound on the one hand (ii.) to obey the regulations of the Church of which they are the ministers, and must also, on the other hand, (iii.) conform to the laws of the country in which they labour. For they can only actively exercise their functions by the licence or permission of the ruling power of that country, and subject to any conditions which it may choose to impose. These principles apply equally whether the Church is what we call established or not. The only difference is that if the Church is established, her own regulations are part of the law of the land; whereas, if she is not established, the law of the land sanctions or suffers the existence of these regulations as a private contract or arrangement between the ministers and other members of the Church. But even in the case of an established Church, her ministers will obviously be restricted in the exercise of their functions by civil regulations which do not form part of the ecclesiastical law. Thus there may be nothing in the law of his Church to prevent a clergyman from holding a religious service or preaching in a crowded thoroughfare. But in England and other civilised countries any attempt to do so would be checked by the existing laws against the obstruction of highways. In the following pages no attempt will be made to point out the non-ecclesiastical laws and limitations to which a parish priest is subject. For though they necessarily affect himself and his spiritual work, they do so only indirectly. They touch him not as a minister or even as a Christian, but as a citizen; and they touch his spiritual work only in so far as that work has a material and civil element.
[2]. Confining then our attention to the ecclesiastical law under which the parish priest holds his position and acts in this country, we note in the first place, that the Church being here established, this ecclesiastical law is equally the law of the Church and the law of the State. This is true whatever be its origin, and however it came into force; and it has always had this double aspect, since (with the exception of the brief interval of the Commonwealth—a period which is not recognised in our jurisprudence as having had any legal existence) there never has been a time in our history when the Church of England has not been the Established Church of the nation. Portions of our Church system and Church law have had an exclusively ecclesiastical origin, by canon or otherwise, and have been adopted or acquiesced in by the State. Further portions have been created by the joint or concurrent action of the Church and the State. Other portions again have been due to the sole action of the civil legislature, which has received the tacit assent of the Church but has never been confirmed by any formal ecclesiastical ratification. From whichever of these three sources any particular point of our Church law may have been derived, its validity and obligation is the same. It binds the Church and her ministers and members irrespectively of its origin, and is at present in force unless it has either been formally repealed or become obsolete and fallen into desuetude.
[3]. Again, like our civil law, our ecclesiastical law is in part written and in part unwritten or customary. Foreign canon or conciliar law or papal law is only binding in England so far as it has been received by immemorial custom, and has thus become part of our unwritten law, or has been incorporated into our written law by the ratification of an Act of Parliament, or a canon or constitution of our own Church; and the binding force of the English Pre-Reformation canons, ordinances, and provincial constitutions stands on the same footing. For the Commission authorised by the Act for the Submission of the Clergy of 1533 to examine the English canons and constitutions, and, with the king's assent, declare which of them should be in force and which should be abrogated, was never appointed, although the time for its appointment was extended by Acts of 1535 and 1543, and the scope of its inquiry was extended by the latter Act so as to include foreign canons and ordinances.[1] Consequently the only written Church law is to be found in Acts of Parliament and the Prayer-Book,[2] and in Post-Reformation canons, which, however, except so far as they are confirmed by Act of Parliament, or declare the unwritten law of the Church, are only binding on the clergy.[3] Of these the chief are those known as the Canons of 1603, which were agreed upon at the sitting of the Canterbury Convocation begun in that year, and were separately passed two years afterwards by the York Convocation. Many portions of them are, however, now obsolete; and Canon 36 and the last words of Canon 102 have been superseded by new canons made in 1865-66 and 1888. The Canons of 1640 were passed after the dissolution of Parliament, which, according to the custom of the realm, put an end also to the existence of Convocation, and they have no legal force.[4]
[4]. Much discussion has arisen upon a fourth source of Church law, namely, the decisions of our ecclesiastical courts. It is important to draw a clear distinction between legislative and judicial functions. A court, whether ecclesiastical or civil, has nothing to do with enacting laws. Its province is confined to interpreting them, when their meaning is obscure or disputed. No doubt, in the course of this interpretation, it will sometimes make law by deciding in a particular way a point on which the legislature has left the matter in doubt, and has not itself clearly laid down the law. Many questions affecting the clergy and the Church have, in fact, been thus determined by our civil as well as by our ecclesiastical tribunals. But if one of our civil courts, in interpreting the civil law, delivers a decision which does not commend itself to the common sense of the nation, it is recognised that the remedy lies not in altering the constitution of the court and endeavouring to obtain a fresh legal decision which shall upset the other, but in obtaining an Act of Parliament expressly over-ruling the unsatisfactory decision. If this is not done, the law may have been technically judge-made, but it is acquiesced in and assented to by Parliament and the nation. The same principle applies to the decisions of ecclesiastical courts. The natural way of getting rid of an obnoxious decision is not by fresh adjudication, but by legislation. Until it has been reversed by one or other of these means, the decision of a court, which de facto possesses ecclesiastical jurisdiction, is binding upon the Church as part of her law for the time being. We have somewhat lost sight of this principle, owing to the extreme difficulty of obtaining any definition or alteration of Church law by a legislative process. But the true remedy lies in a healthy revival of the exercise of ecclesiastical legislation, and not in an endeavour to make the ecclesiastical judicature, whether as now existing or after a reform of the courts, discharge legislative functions which are wholly outside its proper province.