The historical position of the general canon law of the Catholic Church in the English provinces has, since the separation from Rome, been the subject of much consideration by English lawyers and ecclesiastics. The view taken by the king’s courts, and acquiesced in by the ecclesiastical courts, since Henry VIII., is that the Church of England was always an independent national church, subject indeed to the general principles of the jus commune ecclesiasticum (Whitlock J. in Ever v. Owen, Godbolt’s Reports, 432), but unbound by any particular constitutions of council or pope; unless those constitutions had been “received” here by English councils, or so recognized by English courts (secular or spiritual) as to become part of the ecclesiastical custom of the realm. Foreign canon law never bound (so it has been taught) proprio vigore.
The sources of English ecclesiastical law (purely ecclesiastical) were therefore (1) the principles of the jus commune ecclesiasticum; (2) foreign particular constitutions received here, as just explained; (3) the constitutions and canons of English synods (cf. Phill. Ecc. Law, part i. ch. iv., and authorities there cited).
1. On the existence of this jus commune ecclesiasticum and that the Church of England, in whatever sense independent, takes it over until she repeals it, see Escott v. Mastin, 4 Moo. P.C.C. 119. Lord Brougham, in delivering the judgment, speaks of the “common law prevailing for 1400 years over Christian Europe,” and (p. 137) says that “nothing but express enactment can abrogate the common law of all Christendom before the Reformation of the Anglican Church.”
2. As to foreign particular constitutions in England, there are a great number of them, of which it has been and is admitted, that they have currency in England. However papal in their origin, post-Reformation lawyers have regarded them as valid, unless they can be shown to be contrary to the king’s prerogative, or to the common or statute law of the realm. To this doctrine express statutory authority (as the events have happened) has been given by 25 Hen. VIII. c. 19, sect. 7. A striking example of the doctrine is furnished by the decree of Innocent III. in the Fourth Lateran Council against pluralities. This decree was enforced in the court of Arches against a pluralist clerk in 1848 (Burder v. Mavor, I Roberts, 614). The courts of common law from Lord Coke’s time downwards have recognized this “constitution of the pope” (as the queen’s bench called it in 1598). The exchequer chamber, in 1837, declared it to have “become part of the common law of the land” (Alstan v. Atlay, 7 A. and E. 289).
3. The particular constitutions of English synods are numerous and cover a large field. At least in legal theory, the only distinction between pre-Reformation and post-Reformation constitutions is in favour of the former—so long as they do not contravene the royal prerogative or the law of the land (see 25 Hen. VIII. c. 19). The most important are collected together and digested (so far as regards England) in Lyndwood’s Provinciale, a work which remains of great authority in English courts. These constitutions are again divided into two classes: (a) provincial constitutions promulgated by provincial synods, usually in the name of the presiding archbishop or bishop; and (b) decrees of papal legates, Otho in 1236 and Othobon (Ottobuono de’ Fieschi, afterwards Pope Adrian V.) in 1269. Canons passed since 25 Hen. VIII. c. 19 have not the parliamentary confirmation which that act has been held to give to previous canons, and do not necessarily bind the laity, although made under the king’s licence and ratified by him. This doctrine laid down by Lord Hardwicke in Middleton v. Croft (2 Stra. 1056) was approved in 1860 in Marshall v. Bp. of Exeter (L.R. 3 H.L. 17). Nevertheless, there are many provisions in these post-Reformation canons which are declaratory of the ancient usage and law of the Church, and the law which they thus record is binding on the laity. The chief body of English post-Reformation canon law is to be found in the canons of 1603, amended in 1865 and 1888. The canons of 1640 are apparently upon the same footing as those of 1603; notwithstanding objections made at the time that they were void because convocation continued to sit after the dissolution of parliament. The opinion of all the judges taken at the time was in favour of the legality of this procedure. 13 Car. ii. c. 12 simply provided that these canons should not be given statutory force by the operation of that act.
In addition to the enactment of canons (strictly so-called) the English provincial synods since the Henrician changes have legislated—in 1570 by the enactment of the Thirty-Nine Articles, in 1661 by approving the present Book of Common Prayer, and in 1873 by approving shorter forms of matins and evensong.
The distinction between pre-Henrician and post-Henrician procedure lies in the requirement, since 25 Hen. VIII., of the royal licence and confirmation. Apparently diocesan synods may still enact valid canons without the king’s authority; but these bodies are not now called.
The prevailing legal view of the position of the Church of England in regard to canon law has been just stated, and that is the view taken by judicial authority for the past three centuries. On the other hand, it is suggested by, e.g., the late Professor Maitland, that it was not, in fact, the view taken here in the later middle ages—that in those ages there was no theory that “reception” here was necessary to validate papal decrees. It is said by this school of legal historians that, from the Conquest down to Henry VIII., the Church of England was regarded by churchmen not as in any sense as separate entity, but as two provinces of the extra-territorial, super-national Catholic Church, and that the pope at this period was contemplated as the princeps of this Catholic Church, whose edicts bound everywhere, as those of Augustus had bound in the Roman empire.
It is right that this view should be stated, but it is not that of the writer of this article.
As to Ireland, in a national synod of the four Irish provinces held at Dublin before the four archbishops, in 1634, a hundred canons were promulgated with the royal licence, containing much matter not dealt with by similar constitutions in England. In 1711, some further canons were promulgated (with royal licence) by another national synod. Some forms of special prayer were appended to these canons.