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Published online by Cambridge University Press: 12 September 2022
Roman canon law did not cease to have an effect within the Church of England after the Reformation. English ecclesiastical lawyers continued to use pre-Reformation foreign papal law and domestic provincial and legatine law. These lawyers used several ideas to explain its status in pre-Reformation England. They usually held that it continued in force after the Reformation on the basis of section 7 of the Submission of the Clergy Act 1533 (if not repugnant to laws of the realm) – and a commission would reform it. However, it is submitted here that this statute enabled the continuance of only domestic provincial law and perhaps legatine law but not foreign papal law. Yet a 1543 statute continued the provincial law and ‘other ecclesiastical laws’ used in England, which may or may not have included legatine and papal law. Another of 1549 has no continuance provision, but the commission was to review ‘ecclesiastical laws used here’ – which, too, may or may not include legatine and papal law. A statute of 1553 repealed these earlier statutes. A statute of 1558 repealed that of 1553 but revived only the 1533 statute, not those of 1543 or 1549. This suggests that only domestic provincial law, and perhaps legatine law, continued on the basis of statute, and not foreign papal laws. The latter might have applied from 1543 to 1553 but not after 1558, as only the 1533 statute perpetuating solely domestic law was revived. Nevertheless, English lawyers continued to invoke foreign Roman canon law. By the nineteenth century they did so on basis of custom not statute – and the 1533 Act section 7 was repealed in 1969.
1 This article develops N Doe, ‘Papal law in the English Church: post-Reformation Anglican jurisprudence’, to be published in 2023 in the Cambridge History of the Papacy. I am very grateful to Richard Helmholz, Chicago Law School, for his very helpful comments on drafts of this study.
2 Halsbury's Laws of England, vol 34: Ecclesiastical Law (London, 2011), para 8.
3 Baker, J H, An Introduction to English Legal History, fifth edition (Oxford, 2019), p 141CrossRefGoogle Scholar.
4 Helmholz, R H, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford, 2004), p 184Google Scholar.
5 Hill, M, Ecclesiastical Law, fourth edition (Oxford, 2018), para 1.14CrossRefGoogle Scholar.
6 Doe, N, The Legal Framework of the Church of England (Oxford, 1996), pp 86–87CrossRefGoogle Scholar.
7 Leeder, L, Ecclesiastical Law Handbook (London, 1997)Google Scholar, para 1.8: this is based on the Acts of 1533 and 1543 (see below) and case law (see note 27).
8 Helmholz, Canon Law and Ecclesiastical Jurisdiction. See also Helmholz, R H, Roman Canon Law in Reformation England (Cambridge, 1990)CrossRefGoogle Scholar, taking the story to 1625 and, in part, a companion to Maitland, F W, Roman Canon Law in the Church of England (London, 1898)Google Scholar. Helmholz introduces the use of Roman canon law beyond the 1640s in The Profession of Ecclesiastical Lawyers: an historic introduction (Cambridge, 2019).
9 See eg 27 Hen VIII c 20 for the category ‘the king's ecclesiastical law of the Church of England’.
10 Doe, N, ‘Richard Hooker: Priest and Jurist’, in Hill, M and Helmholz, R H (eds), Great Christian Jurists in English History (Cambridge, 2017), pp 115–137 at p 118CrossRefGoogle Scholar.
11 Ridley, T, A View of the Civil and Ecclesiastical Law (London, 1607), pp 66–67Google Scholar: while Ridley is critical of ‘canon law’ as containing ‘many gross and superstitious matters’, ‘there are in it besides, many things of great wisdom’ which, ‘well applied to the true service of God, may have a good use and understanding’.
12 Smith, D C, Sir Edward Coke and the Reformation of the Law: religion, politics and jurisprudence, 1578–1616 (Cambridge, 2014), p 136CrossRefGoogle Scholar, citing Coke, ‘De Jure’, fols 9v, 16v.
13 W Nelson, The Rights of the Clergy of Great Britain, as Established by the Canons, the Common Law, and the Statutes of the Realm (London, 1709), pp 121–122.
14 E Gibson, ‘Discourse’, in Codex Juris Ecclesiastici Anglicani, 2 vols (London, 1713), vol i, p xxvii. Richard Grey follows suit: see R Grey, A System of English Ecclesiastical Law (London, 1730), p 9.
15 E Gibson, ‘Preface’, in Codex Juris Ecclesiastici Anglicani, vol i, pp viii–x: Canterbury laws were ‘copied’ and ‘received’ in York.
16 J Ayliffe, ‘An historical introduction’, in Parergon Juris Canonici Anglicani, or a Commentary by Way of Supplement to the Canons and Constitutions of the Church of England (London, 1726), pp xv, xix–xxii; he also distinguishes eg a ‘Canon, a Decree … a Dogma, Sanction, Interdict, and a Mandate’.
17 R Burn, ‘Preface’, in Ecclesiastical Law (London, 1763), pp vi–vii: he too distinguishes ‘decrees’, laws of general applicability, and ‘decretals’, specific determinations having ‘the authority of a law in themselves’; he then lists the collections such as John XXII's Extravagantes or ‘novel constitutions’.
18 S Hallifax, An Analysis of the Roman Civil Law, third edition (Cambridge, 1779), pp vii and 2–3.
19 W Blackstone, Commentaries on the Laws of England, 4 vols (Oxford, 1765–1769) Introduction, Sections 2 and 3. For debate on the authorship of ‘Gratian's’ Decretum, see A Winroth, The Making of Gratian's Decretum (Cambridge, 2000).
20 F J N Rogers, A Practical Arrangement of Ecclesiastical Law (London, 1840), pp 134–138: Rogers notes that ‘A most elaborate history of the canon law, will be found in the Historical Introduction to Ayliffe's Parergon’.
21 A J Stephens, A Practical Treatise of the Law Relating to the Clergy, 2 vols (London, 1848), vol i, pp 223–224.
22 J H Blunt, The Book of Church Law (London, 1899; first published 1872), p 19.
23 B Whitehead, Church Law, second edition (London, 1899; first published 1892), p 57.
24 J Godolphin, Repertorium Canonicum, or An Abridgement of the Ecclesiastical Laws (London, 1678), p 21.
25 Grey, System of English Ecclesiastical Law, pp 7–8.
26 Blackstone, Commentaries, Introduction, Section 3; Rogers, Ecclesiastical Law, p 269; H Cripps, A Practical Treatise on the Law Relating to Church and Clergy (London, 1845), p 617.
27 Caudrey's Case (1591) 5 Co Rep Ia, cited by eg Stephens, Law Relating to the Clergy, vol i, p 689.
28 J Davies, Le Primer Report des Cases en Ireland (Dublin 1615), p 69, Le Case de Commendams (1612), cited by Stephens, Law Relating to the Clergy, vol i, p 689.
29 M Hale, The History of the Common Law of England (London, 1713), p 27, as cited by Rogers, Ecclesiastical Law, pp 136–137, also citing Coke 2 Inst 652, 658. For Hale, see also Blunt, Church Law, pp 18–19.
30 Nelson, Rights of the Clergy, pp 126–127, emphasis added.
31 Ibid, p 127, emphasis added.
32 Godolphin, Repertorium Canonicum, 6 (popery), 77–78 (pre-Reformation papal law) (emphasis in original). See also Ayliffe, ‘Historical introduction’, p xxxiii: ‘The ancient Canon Law received in this realm is the Law of the Kingdom in ecclesiastical cases, if it be not repugnant to the Royal Prerogative, or to the Customs, Laws, and Statutes of the Realm [n. Vaug. Rep. 152].’
33 Burn, ‘Preface’, pp vii–viii, and Burn, Ecclesiastical Law, sixth edition, p 179, citing Gibson, Codex Juris Ecclesiastici Anglicani, vol i, p xxvii.
34 Blackstone, Commentaries, Introduction, Section 3. He cites Hale, History of the Common Law, and Caudrey's Case.
35 Blunt, Church Law, pp 13–18.
36 Gibson, ‘Discourse’, pp xxvii–xxix.
37 Gibson, Codex Juris Ecclesiastici Anglicani, vol ii, p 998.
38 Stephens, Law Relating to the Clergy, vol i, pp 224–225, citing Evans v Askwith, Jones (Sir W), 160.
39 S Degge, The Parson's Counsellor with The Law of Tithes or Tithing, seventh edition (London, 1820; first published 1703), p 27. See also the Ecclesiastical Licences Act 1533 for the ‘sufferance’ of the laws of ‘any foreign prince, potentate or prelate’ by ‘long use and custom’ as well as ‘consent’ in England.
40 J Johnson, ‘General preface’, in A Collection of All the Ecclesiastical Laws, Canons, Answers, or Rescripts … Concerning the Government, Discipline and Worship of the Church of England (London, 1720), p xxxv.
41 Ayliffe, ‘Historical introduction’, pp xxx–xxxii: but ‘our kings would never suffer it’.
42 Nelson, Rights of the Clergy, p 127 (emphasis added).
43 Stephens, Law Relating to the Clergy, vol i, p 689: R v Millis (1844) 10 Cl & Fin 534, at 680. Stephens also cites Hale, History of the Common Law, c 2. Also Rogers, Ecclesiastical Law, p 137 (emphasis in original): ‘In Norton v. Seton, 3 Phill. 162 … Sir J. Nicholl said, “If the canon law is to govern this case, the text referred to does not come up to the point, and even if it did, something more would be to be shown, namely, that it has been received as the law of this country;” and … “But even if the canon law were direct upon this point, is it according to the law of England?” Again … the older Canons, even though receivable, are not to be considered as carrying … their first authority, per Lord Stowell, Burgess v. Burgess, 1 Hag. Con. 393. In many cases, however, they will be found to be only declaratory of the common law.’
44 Helmholz, Roman Canon Law, chapter 1.
45 Nelson, Rights of the Clergy, pp 121–122 (emphasis added).
46 Stephens, Law Relating to the Clergy, vol i, p 226. However, see below for this view of the Ecclesiastical Licences Act.
47 For an early example, see R Lever, Assertions Touching the Canon Law (1563), in G Bray (ed), The Anglican Canons 1529–1947 (Woodbridge, 1998), p 762 (Assertion 3), on ‘the pope's laws’: its ‘rules, ordinances and decrees … have warrant by the Holy Scriptures and … law of nature, and thereupon are in force here at this day, being established by act of parliament to this end’, and ‘ought not … taken … for foreign or popish laws, but for good and wholesome English laws’ (emphasis in original).
48 Godolphin, Repertorium Canonicum, p 23 (emphasis added); but he also continues to cite papal law.
49 Gibson, ‘Discourse’, p xxviii (emphasis in original): ‘to add further proof, that the foreign law being received, and not abrogated by any domestic law, is still in force, we have the declaration of the judges in … Evans and Ascuith, 3 Car. 1, which was, on one hand, That no foreign canons bind here, but such as have been received, and, on the other hand, that being received, they are become part of our laws.’
50 Gibson, Codex Juris Ecclesiastici Anglicani, vol ii, p 998 (emphasis added): that is, under the statute 25 Hen VIII c 14.
51 Johnson, ‘General preface’, pp xxix–xxx (emphasis added), on 25 Hen VIII c 19: ‘What part of the Canon Law was received in England, and the manner of putting that, and of domestic Constitutions in practice, is to be learned from Lyndwood: for by the common consent of lawyers, what he delivers as the Common Law of the Church is so to this day, excepting where it is annulled by Statute.’
52 Ayliffe, ‘Historical introduction’, p iv.
53 Burn, ‘Preface’, pp viii–ix, discussing 25 Hen VIII c 19.
54 Hallifax, Analysis of the Roman Civil Law, pp 3–4.
55 Stephens, Law Relating to the Clergy, vol i, p 224: he actually refers to ‘25 Hen. 8 c. 21’ – the attendant discussion suggests that this was a mistake, as it refers to the power of Convocation to make canons.
56 Blunt, Church Law, pp 21–24 (emphasis added).
57 T A Lacey, A Handbook of Church Law (London, 1903), p 40 (emphasis added).
58 Archbishops’ Commission on Canon Law, The Canon Law of the Church of England (London, 1947), p 46. Phillimore makes no mention of the 1543 Act: in R Phillimore, Ecclesiastical Law, second edition (London, 1895), p lxviii, 35 Hen VIII c 16 is absent from his table of statutes.
59 Statute 1 & 2 Ph and M c 8 sought ‘to repeal all laws and statutes made contrary to the Supremacy and See Apostolic during the … schism’. The statutes 25 Hen VIII c 9 and 27 Hen VIII c 15 are listed in marginal notes in the Statutes of the Realm; the others, one might presume, were repealed by implication.
60 That is, between 25 Hen VIII (1533) and 35 Hen VIII (1543) only domestic law continued until revised; from 35 Hen VIII (1543), through 3 & 4 Ed VI (1550–1553), until (after Mary repealed these) 1 Eliz 1 (1558), both domestic and foreign law continued till revised; after 1 Eliz 1 (1558) only domestic law continued (until revised) because only 25 Hen VIII (1533) and not 35 Hen VIII (1543) was revived.
61 See below for the ‘rule of practice’ used by the English church courts.
62 See eg G Bray, ‘The strange afterlife of the Reformatio Legum Ecclesiasticarum’, in N Doe, M Hill and R Ombres (eds), English Canon Law (Cardiff, 1998), pp 36–47.
63 See T Kirby, ‘Lay supremacy: reforms of the canon law of England from Henry VIII to Elizabeth I (1529–1571)’, (2006) 8 Reformation and Renaissance Review 349–370 esp at 355, 359 and 363.
64 Nelson, Rights of the Clergy, p 129 (emphasis added).
65 Gibson, Codex Juris Ecclesiastici Anglicani, vol i, p 998 (emphasis in original); see pp 989 and 997.
66 Ibid, p 989.
67 Grey, System of English Ecclesiastical Law, pp 344–347.
68 Burn, ‘Preface’, pp ix–xiv: he lists 25 Hen VIII c 19, 17 Hen VIII c 15, 35 Hen VIII c 16, 3 & 4 Ed VI c 11.
69 Ibid, p xv (25 Hen VIII c 19), p xii (35 Hen VIII c 16).
70 Rogers, Ecclesiastical Law, pp 135–136: ‘In England the authority of the canon law, especially since the Reformation, has been much limited, and that part of it only is generally binding which has been sanctioned and adopted by usage or recognized by statute. During the progress of the Reformation, various attempts seem to have been made to consolidate and confirm the canon law.’
71 (1736) 2 Atk 650 at 669 (emphasis added): ‘This rule is warranted not only by the reason and nature of the thing, but also by a strong express declaration of Parliament in the preamble to statute 25 Hen. 8, c. 21.’
72 Rogers, Ecclesiastical Law, pp 135–136.
73 Phillimore does not seem to discuss whether foreign and/or domestic pre-Reformation Roman canon law continued on the basis of statute, but he focuses on custom as its basis, relying inter alia on the judgment of the Dean of Arches in Martin v Mackonochie, LR 2 Adm. & Eccl. p 116 at pp 150–155: see Phillimore, Ecclesiastical Law, pp 11–14. Moreover, he writes at p 16: ‘The law of the Church of England is … derived from the leading general councils of the undivided church, from a practice and usage incorporating portions of the general canonical jurisprudence, from provincial constitutions, from canons passed by her clergy and confirmed by the crown in convocation, and from statutes enacted by parliament, that is, the crown, the spirituality and the temporality of the realm’ (emphasis added). See also eg Whitehead, Church Law, pp 129–130: ‘The Ecclesiastical Law of England is not a foreign law. It is a part of the general law of England – of the common law – in that wider sense which embraces all the ancient and approved customs of England which form law.’
74 (1868) LR 3 HL 17 at 53–56.
75 [1968] 1 WLR 513: see N Doe, Legal Framework of the Church of England, pp 86–87. M Hill, Ecclesiastical Law, para 138: the rule applies to ‘pre-Reformation canon law’ (papal law is not specified).
76 Helmholz, Roman Canon Law, p 137.
77 Bray, Anglican Canons, p 929: Index of References to the Corpus Iuris Canonici. See also G Bray, The Development of the Canons: a historical study and summary of the Church of England Canons 1969 to 2020 (London, 2021).
78 Statute Law (Repeals) Act 1969, Schedule, Part II, repealed ‘the whole act [25 Hen VIII c 19] except, so far as unrepealed, sections 1 and 3’; section 7 is thus repealed.