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ECCLESIASTICAL LAW

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Originally appearing in Volume V08, Page 868 of the 1911 Encyclopedia Britannica.
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ECCLESIASTICAL See also:

LAW , in its broadest sense, the sum of the authoritative rules governing the See also:Christian See also:Church, whether in its See also:internal polity or in its relations with the See also:secular See also:power. Since there are various churches, widely differing alike in their principles and practice, it follows that a like difference exists in their ecclesiastical law, which is the outcome of their corporate consciousness as modified by their several relations to the secular authority. At the outset a distinction must be made between churches which are " established " and those that are " See also:free." The ecclesiastical See also:laws of the latter are, like the rules of a private society or See also:club, the concern of the members of the church only, and come under the purview of the See also:state only in so far as they come in conflict with the secular law (e.g. See also:polygamy among the See also:Mormons, or violation of the See also:trust-deeds under which the See also:property of a church is held). In the See also:case of " established " Churches, on the other See also:hand, whatever the varying principle on which the See also:system is based, or the difference in its See also:practical application, the essential conditions are that the ecclesiastical law is also the law of the See also:land, the decisions of the church courts being enforced by the See also:civil power. This holds See also:good both of the See also:Roman See also:Catholic Church, wherever this is recognized as the " state See also:religion," of the See also:Oriental Churches, whether closely identified with the state itself (as in See also:Russia), or endowed with See also:powers over particular nationalities within the state (as in the See also:Ottoman See also:empire), and of the various See also:Protestant Churches established in See also:Great See also:Britain and on the See also:continent of See also:Europe. Writers on the theory of ecclesiastical law, moreover, draw a fundamental distinction between that of the Church of See also:Rome and that of the Protestant See also:national or territorial Churches. This distinction is due to the claim of the Roman Catholic Church to be the only Church, her laws being thus of universal See also:obligation; whereas the laws of the various established Protestant Churches are valid—at least so far as legal obligation is concerned—only within the limits of the countries in which they are established. The practical effects of this distinction have been, and still are, of enormous importance. The Roman Catholic Church, even when recognized as the state religion, is nowhere " established " in the sense of being identified with the state, but is rather an imperium in imperio which negotiates on equal terms with the state, the results being embodied in concordats (q.v.) between the state and the See also:pope as See also:head of the Church. The concordats are of the nature of truces in the perennial conflict between the spiritual and secular powers, and imply in principle no surrender of the claims of the one to those of the other. Where the Roman Catholic Church is not recognized as a state religion, as in the See also:United States or in the See also:British Islands, she is in the position of a " free Church," her See also:jurisdiction is only in foro conscientiae, and her ecclesiastical laws have no validity from the point of view of the state. On the other hand, the See also:root principle of the ecclesiastical law of the established Protestant Churches is the rejection of See also:alien jurisdiction and the assertion of the supremacy .of the state.

The theory underlying this may vary. The See also:

sovereign may be regarded, as in the case of the See also:Russian See also:emperor or of the See also:English See also:kings from the See also:Reformation to the Revolution, as the See also:vicar of See also:God in all causes spiritual as well as temporal within his See also:realm. As the first fervent belief in the divine right of kings faded, however, a new basis had to be discovered for a relation between the spiritual and temporal powers against which Rome had never ceased to protest. This was found in the so-called "collegial" theory of Church See also:government (Kollegialsystem), which assumed a sort of tacit See also:concordat between the state and the religious community, by which the latter vests in the former the right to exercise a certain See also:part of the See also:jus in sacra properly inherent in the Church (see See also:PUFENDORF, See also:SAMUEL). This had great and lasting effects on the development of the theory of Protestant ecclesiastical law on the continent of Europe. In See also:England, on the other hand, owing to the See also:peculiar See also:character of the Reformation there and of the Church that was its outcome, no theory of the ecclesiastical law is conceivable that would be satisfactory at once to lawyers and to all See also:schools of See also:opinion within the Church. This has been abundantly proved by the attitude of increasing opposition assumed by the See also:clergy, under the See also:influence of the Tractarian See also:movement, towards the civil power in matters ecclesiastical, an attitude impossible to justify on any accepted theory of the See also:Establishment (see below). Protestant ecclesiastical law, then, is distinguished from that of the Roman Catholic Church (I) by being more limited in its See also:scope, (2) by having for its authoritative source, not the Church only or even mainly, but the Church in more or less See also:complete See also:union with or subordination to the State, the latter being considered, equally with the Church, as an See also:organ of the will of God. The ecclesiastical law of the Church of Rome, on the other hand, whatever its origin, is now valid only in so far as it has the See also:sanction of the authority of the See also:Holy See. And here it must be noted that the " See also:canon law " is not identical with the " ecclesiastical law " of the Roman Catholic Church. By the canon lawis meant, substantially, the contents of the Corpus See also:juris canonici, which have been largely superseded or added to by, e.g. the canons of the See also:council of See also:Trent and the Vatican decrees. The See also:long projected codification of .the whole of the ecclesiastical law of the Church of Rome, a See also:work of gigantic labour, was not taken in hand until the pontificate of See also:Pius X.

(See also CANON LAW and ECCLESIASTICAL JURISDICTION.) The ecclesiastical law of England is in complete dependence upon the authority of the state. The Church of England cannot be said, from a legal point of view, to have a corporate existence or even a representative See also:

assembly. The See also:Convocation of See also:York and the Convocation of See also:Canterbury are provincial assemblies possessing no legislative or judicial authority; even such purely ecclesiastical questions as may be formally commended to their See also:attention by letters of business " from the See also:crown can only be finally settled by See also:act of See also:parliament. The ecclesiastical courts are for the most part officered by laymen, whose subordination to the archbishops and bishops is purely formal, and the final See also:court of See also:appeal is the Judicial See also:Committee of the Privy Council. In like manner thanges in the ecclesiastical law are made directly by parliament in the See also:ordinary course of legislation, and in point of fact a very large portion of the existing ecclesiastical law consists of acts of parliament. The See also:sources of the ecclesiastical law of England are thus described by Dr. See also:Richard See also:Burn (The Ecclesiastical Law, 9th ed., 1842):—" The ecclesiastical law of England is compounded of these four See also:main ingredients—the civil law, the canon law, the See also:common law, and the See also:statute law. And from these, digested in their proper See also:rank and subordination, to draw out one See also:uniform law of the church is the purport of this See also:book. When these laws do interfere and See also:cross each other, the See also:order of preference is this:—`The civil law submitteth to the canon law; both of these to the common law; and all three to the statute law. So that from any one or more of these, without all of them together, or from all of them together, without attending to their See also:comparative obligation, it is not possible to exhibit any distinct prospect of the English ecclesiastical constitution.' Under the head of statute law Burn includes ` the See also:Thirty-nine Articles of Religion, agreed upon in Convocation in the See also:year 1562; and in like manner the See also:Rubric of the Book of Common See also:Prayer, which, being both of them established by Acts of Parliament, are to be esteemed as part of the statute law.' " The first principle of the ecclesiastical law in England is the assertion of the supremacy of the crown, which in the See also:present state of the constitution means the same thing as the supremacy of parliament. This principle has been maintained ever since the Reformation. Before the Reformation the ecclesiastical supremacy of the pope was recognized, with certain limitations, in England, and the Church itself had some pretensions to ecclesiastical freedom.

The freedom of the Church is, in fact, one of the See also:

standing provisions of those charters on which the English constitution was based. The first See also:provision of Magna Carta is quod See also:ecclesia Anglicana libera sit. By the various enactments of the See also:period of the Reformation the whole constitutional position of the Church, not merely with reference to the pope but with reference to the state, was definitely fixed. The legislative power of convocation was held to extend to the clergy only, and even to that extent required the sanction and assent of the crown. The common law courts controlled the jurisdiction of the ecclesiastical courts, claiming to have " the exposition of such statutes or acts of parliament as concern either the extent of the jurisdiction of these courts or the matters depending before them. And therefore if these courts either refuse to allow these acts of parliament, or expound them in any other sense than is truly and properly the exposition of them, the See also:king's great courts of common law may prohibit and See also:control them." The See also:design of constructing a See also:code of ecclesiastical laws was entertained during the period of the Reformation, but never carried, into effect. It is alluded to in various statutes of the reign of See also:Henry VIII., who obtained power to appoint a See also:commission to examine the old ecclesiastical laws, with a view of deciding which ought to be kept and which ought to be abolished; and in the meantime it was enacted that " such canons, institutions, ordinances, synodal or provincial or other ecclesiastical laws or jurisdictions spiritual as be yet accustomed and used here in the Church of England, which necessarily and conveniently are requisite to be put in ure and See also:execution for the See also:time, not being repugnant, contrarient, or derogatory to the laws or statutes of the realm, nor to the prerogatives of the royal crown of the same, or any of them, shall be occupied, exercised, and put in ure for the time with this realm " (35 Henry VIII. c. 16, 25 C. 19, 27 C. 8). The work was actually undertaken and finished in the reign of See also:Edward VI. by a sub-committee of eight persons, under the name of the Reformatio legum ecclesiasticarum, which, however, never obtained the royal assent. Although the powers of the 25 Henry VIII. c. r were revived by the 1 See also:Elizabeth c.

1, the See also:

scheme was never executed, and the ecclesiastical laws remained on the footing assigned to them in that statute—so much of the old ecclesiastical laws might be used as had been actually in use, and was not repugnant to the laws of the realm. The statement is, indeed, made by See also:Sir R. See also:Phillimore (Ecclesiastical Law, 2nd ed., 1895) that the " Church of England has at all times, before and since the Reformation, claimed the right of an See also:independent Church in an independent See also:kingdom, to be governed by the laws which she has deemed it expedient to adopt." This position can only be accepted if it is confined, as the authorities cited for it are confined, to the resistance of interference from abroad. If it mean that the Church, as distinguished from the kingdom, has claimed to be governed by laws of her own making, all that can be said is that the claim has been singularly unsuccessful. From the time of the Reformation no See also:change has been made in the law of the Church which has not been made by the king and parliament, sometimes indirectly, as by confirming the resolutions of convocation, but for the most part by statute. The See also:list of statutes cited in Sir R. Phillimore's Ecclesiastical Law fills eleven pages. It is only by a See also:kind of legal fiction akin to the " collegial " theory mentioned above, that the Church can be said to have deemed it expedient to adopt these laws. The terms on which the Church Establishment of See also:Ireland was abolished, by the Irish Council Act of 1869, may be mentioned. By See also:sect. 20 the present ecclesiastical law was made binding on the members for the time being of the Church, " as if they had mutually contracted and agreed to abide by and observe the same "; and by See also:section 21 it was enacted that the ecclesiastical courts should cease after the 1st of See also:January 1871, and that the ecclesiastical laws of Ireland, except so far as relates to matrimonial causes and matters, should cease to exist as law.

End of Article: ECCLESIASTICAL LAW

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