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What is the Place of Custom in English Canon Law?1

Published online by Cambridge University Press:  31 July 2008

Rupert Bursell
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It is now generally recognised that as a matter of history the canon law was applied, subject to variations by local custom, in pre-Reformation England just as much as throughout the rest of Western Christendom. Indeed such local variations were permitted by the canon law itself. As Professor Brooke concluded in The English Church and The Papacy From The Conquest To The Reign of King John:

“The English Church recognised the same law as the rest of the Church; it possessed and used the same collections of Church law that were employed in the rest of the Church. There is no shred of evidence to show that the English Church in the eleventh and twelfth centuries was governed by laws selected by itself.”

The same was also true until the Reformation.

Type
Research Article
Information
Ecclesiastical Law Journal , Volume 1 , Issue 4 , January 1989 , pp. 12 - 26
Copyright
Copyright © Ecclesiastical Law Society 1989

References

2. See “The Canon Law of the Church of England” S.P.C.K. at 36; 14 Halsbury Laws of England (4th ed.) at 306.

3. X.V.3, 42 and X.I.4,11; Dictionnaire de Droit Canonique ad v. “coutume”; Bras, Le, Febvre, Le and Ramhaud, . L'Age Classique at 212–213.Google Scholar

4. at 113.

5. Stubbs. who had propounded a different view in the Report of the Ecclesiastical Courts Commission (1883), finally conceded that Maitland's contrary view in Roman Canon Law in the Church of England (1898) was correctGoogle Scholar: see Bell on Maitland. See Helmholz, Canon Law and the Law of England at 216, 253–256Google Scholar. and 261–262.

6. (1844) 10 C1 & Fin. 534 at 680. The House itself was equally divided but Blackburn, J. nevertheless quoted it in his advice to the House in Bishop of Exeterv. Marshall (1868) L.R. 3 H.L. 17 at 35 and it was approved at 46 by Lord Chelmsford, L.C.Google Scholar

7. (1868) L.R. 2 A. & E. 116 at 153. See too SirNicholl, John in Wilson v. McMath (1819) 3 Phillimore 67 at 78–79.Google Scholar

8. 2nd Ed. at 16.

9. (1844) 10 Cl. & Fin. 534 at 745.

10. See 13 Halsbury Laws of England (3rd ed.) at p 10. The historical controversy was recognised in footnote (S). In the fourth edition the difference between the historical and traditional views is placed more in context: 14 Halsbury's Laws of England (4th ed.) at 306–307.

11. (1840) 12 Ad. & El. 265.

12. at 301.

13. Op. cit. at 1415. In fact temporal lawyers in England adopted the canonist's phrase jus commune in the thirteenth century but began to contrast “common law” both with the royal prerogative and statute; to canonists, however. the jus commune “meant the law that is common to the universal church, as opposed to the constitutions or special customs or privileges of any provincial church”. Maitland, , Canon Law in the Church of England at 4Google Scholar. In Ever v. Owen Godb. 432 Whitlock, J. was to say: “There is a common law ecclesiastical, as well as our common law, jus commune ecclesiasticum, as well as jus comnune laicum.” See, too Rennell v. Bishop of Lincoln (1825) 3 Bing. 223 at 271 per Best, C.J.Google Scholar

14. op. cit. at 261–262.

15. See Simpson, Sparrow, Dispensations Excursus IGoogle Scholar; Kemp, , An Introduction to Canon Law in the Church of England at 25–32.Google Scholar

16. op. cit. at 41. According to Stephen's Ecclesiastical Statutes at 315 the period of 40 years chosen in An Act for Payment of Tithes, 1548, as the time for proof of a tithe “was that, as thirty years in the ecclesiastical law make a prescription for the church, so forty years are a prescription against the church. Doubitofte v. Curteene Cro. Jac. 452.”

17. See Kemp, op. cit. at 26–27. Mere disuse is not sufficient, therefore: Sparrow Simpson, op cit. at 206–207 “The law may exist though it may have been suffered to sleep”: Wynn v. Davies (1835) I Curt. 69 at 75 per Sir Herbert Jenner-Fust.Google Scholar

18. See Sparrow Simpson, op. cit.

19. See Kemp op. cit. at 27. (cp) too Lyndewood, , Provinciale Angliae at p. 136 gloss ad. v. Nos misericordiam.Google Scholar

20. For a convenient summary see The Canon Law of the Church of England at 45 et seq.

21. See, too, Harrison v. Burwell Ventris 9 at 13 per Vaughn, C.J. on the Acts of Succession 1533 and 1536.

22. 1 BI. Com. 83.

23. The Canon Law of the Church of England at 47Google Scholar. For an example see R. v. Millis (1844) 10 C1.&Fin. 534 (solemnisation of marriage).

24. As to Gratian's Decretum see 14 Halsbury's Laws of England. (4th ed.) at 305 note 2.

24A Bishop of Exeter v. Marshall (1868) LR 3 H.L. 17 at 53–55Google Scholar; In re St. Mary's, Westwell (1968) 1 W.L.R. 513 at 516Google Scholar. For an example of the resulting complexities see R. v. Archbishop of Canterbury (1902) 2 K.B. 503Google Scholar. See also Filewood v. Marsh (1797) 1 Hag. Con. 478.Google Scholar

25. at 55.

26. See Sparrow Simpson, op. cit. at 205 et seq. Non-user is insufficient: Canon Law of the Church of England at 64–68.Google Scholar

27. For a contrary view see Canon Law of the Church of England at 64Google Scholar. Contrast 13 Halsbury's Laws of England (3rd ed.) at p9 and 14 Halsbury's Law's of England (4th ed.) at 307. Indeed a rule may also become obsolete: see Griffiths v. Reed (1828) 1 Hag. Ecc. 195 at 210 (purgatio indicenda)Google Scholar. See. further, Phillimore v. Machon (1876) 1 P.D. 481 at 487–489Google Scholar; Redfern v. Redfern (1891) P. 139Google Scholar; Blunt. v. Park Lane Hotel Ltd. (1942) 2 K.B. 253Google Scholar. See, too, Phillimore v. Machon (1876) 1 P.D. 481.Google Scholar

28. (1889) Roscoe's Rep. 1 at 17. See also Burgess v. Burgess (1804) 1 Hag. Con. 384 at 393 per Sir William ScottGoogle Scholar; Chick, v. Ramsdale (1835) 1 Curteis 34.Google Scholar

29. Martin v. Machonockie (1868) L.R. 2 A & E. 116 at 190Google Scholar; Liddell v. Westerton (1857) Moore's Special Report 1Google Scholar; Elphinstone v. Purchas (1870) L.R. 3 A & E 66 at 91Google Scholar. See Grisling v. Wood Co. Eliz. 85Google Scholar “… and although it was said the custom there was used, yet this cannot be good against a statute…” This was not an eccelesiastical case, however. In R. v. Archbishop of Canterbury (1902) 2 K.B. 503 both Lord Alverstone. C.J. and Riley, J at 543 and 564 respectively, when considering the interpretation of 25 Henry VIII c.20 (the statute next after the Submission of the Clergy), pointed out that a practice cannot contradict the plain words of a statuteGoogle Scholar. Contrast Gore-Booth v. Bishop of Manchester (1920) 2 K.B. 412 at 424Google Scholar and see the extreme view expressed in The Canon Law of the Church of England at 66–67.Google Scholar

30. (1699) 1 Ld Raym.435.

31. at 435–6. See also Cooker v. Goale 2 Rolle's Abr 307 and Jones v. Stone (1700) 2 Salk. 550.Google Scholar

32. (1776) 2 Cowp. 422.

33. at 425. See also 424. See, too. Bannister, v. Hopton 10 Mod 12 (choice of churchwardens): Paxton. v. Knight (1757) 1 Burr 314 (pews).Google Scholar

34. In Stokes v. Trollop Freeman 300 “a prohibition was granted in a suit in the Consistory Court at Exeter for a mortuary, upon a suggestion that time out of mind no mortuary had been paid; because this custom is triable at common law”.

35. See Martin v. Mackonochie (1868) L.R. 2 A & E 116 at 175Google Scholar and Ridsdale. v. Clifton (1877) 2 P.D. 276 at 331.Google Scholar

35A. See also Martin v. Mackonochie (1868) L.R. 2 P.C. 265 at 391 (usage as to lights).Google Scholar

36. See, too. Hutchings v. Denziloe (1792) 1 Hag. Con 170 (hymns)Google Scholar; Read v. Bishop of Lincoln (1892) AC 644 at 659–661 (hymns, especially the Agnus Dei)Google Scholar; Marson v. Unmade (1923) P. 163 at 167–8 (collections and voluntary)Google Scholar; and 13 Halsbury's Laws of England (3rd ed.) at p.340(b).

37. See Thomas v. Scrivener (1888) 13 P.D. 128Google Scholar; White v. Bowron (1873) L.R. 4 A & E 207 at 211Google Scholar; In re St. Mary's Barnes (1982) 1 WLR 531 at 532.Google Scholar

38. On this fascinating question see Chambers. Faculty Office Registers 1534–1549 at xxxviii-xxxix; Report of the Ecclesiastical Committee on the Clergy (Ordination and Miscellaneous Provisions) Measure 1964 H.L. 113 and H.C. 200 and section 8 of the 1964 Measure itself.

39. In Shepherd v. Payne (1862) 12 C.B.N.S. 414 at 434–435 a practice that had been followed for centuries by which each parish was not visited geographically was held legal.Google Scholar

40. See Phillimore's Ecclesiastical Law (2nd ed) at 1059–1061.

41. The first sentence of this quotation is odd in light of the fact that the cases at (xvi), (xx) and (xxiii) are referred to on the same page and the learned judge had already (at 423) accepted that the rubric was “of statutory authority”.

42. Reported on appeal at (1925) P. 1.

43. Introduction to Canon Law in the Church of England at 63 et seq.Google Scholar

44. Parson's Counsellor pt. 2 Chap. 13 at 217.

45. Parergon Juris Canonici Anglicani at (194–196).Google Scholar

46. At 19.

47. A chapter revised by Walter Phillimore in the second edition (1895) as “Relations between courts Spiritual and Temporal”.

48. At 1442.

49. At 1116.

50. Canon Law in the Church of England at 64. But see the criticism above of this interpretation of Bishop of Exeter v. Marshall.

51. 13 Halsbury's Laws of England (3rd ed) at p.9.

52. (1868) L.R. 3 H.L. 17 at 54–55. It must be recognised that the actual case itself turned on whether the rule in question had been part of the pre-Reformation ecclesiastical law in England – a question stated in terms of a theory of reception of the canon law. Nevertheless the effect of the Reformation was also recognised by Lord Blackburn at 35–36 Willes, J. at 41, Martin, B. at 44 and Lord Chelmsford at 46. 13 Halsbury's Laws of England (3rd ed) at 9 also refers to Archbishop Benson's statement in Read v. Bishop of Lincoln (1889)Google Scholar Roscoe's Rep. 1 at 17 that many of “the canons called apostolic … nowhere now survive in use, and could nowhere be acted upon in the Catholic Church as it is” but this deals with a position already existing at the Reformation as does Burgess v. Burgas (1804) 1 Hag. Con. 384 at 393.Google Scholar

53. In re Robinson Wright v. Tugwell (1892) 1 Ch. 95Google Scholar; (1897) 1 Ch. 85.

54. Hutchins v. Denziloe (1792) 1 Hag.Con. 170Google Scholar; Read v. Bishop of Lincoln (1892) A. C. 644 at 659–661.Google Scholar

55. Marson v. Unmack (1923) P. 163 at 167–168.Google Scholar

56. It seems best to regard Gates v. Chambers (1824) 2 Addams 177 as a change in administrative practiceGoogle Scholar. Burgoyne v. Free (1825) 2 Addams 405Google Scholar and Seale. v. Veley (1841) 1 Not. Cas. 170Google Scholar both seem to be decided on usage as to procedural matters.

57. At P.9(1).

58. (1902) 2 K.B. 503.

59. (1905) 2 K.B. 249.

60. The judgments of Lord Alverstone C.J., at 553–554 and Wright, J. at 563 specifically state that the forms were consistent with there being no inquiry.

61. The common law knows no general rule of the obsolescence or desuetude: see Ashford v. Thornton 1 Barn. & Ald. 405 (trial by battle)! However the common law permits different approaches in the interpretation of ecclesiastical statutes: Hebbert v. Purchas (1871) L.R.3 P.C. 605Google Scholar; Ridsdale v. Clifton (1877) 2 P.D. 605Google Scholar; (1970) 33 MLR 197 at 201. See. too, Jenkins v. All-Gen of Bermuda (1868) L.R. 2 P.C. 258Google Scholar: Felton v. Callis (1968) 3 WLR 951.Google Scholar

62. (1877) 2 P.D. 276 at 331.

63. (1843) 1 Not. Cas. 457.

64. (1843) 1 Not. Cas. 457 at 487.

65. (1843) 2 Not. Cas. 278 at 291–292.

66. (1876) 1 P.D.481.

67. At 487–489.

68. (1891) P. 139.

69. (1934) KB. 1650.

70. (1891) P. 193 per Lindley, L.J. at 45 and per Bowen L.J. at 147. For the earlier cases see Brownsford. v. Edwards (1750–1751) 2 Ves. Sen. 242Google Scholar; Chetwynd. v. Lindon (1752) 2 Ves. Sen. 450Google Scholar and Finch, v. Finch (1752) 2 Ves. Sen. 491.Google Scholar

71. But see Blackmore. v. Brider (1816) 2 Phil. 359Google Scholar; Courtail. v. Homfray (1828) 2 Hag. Ecc. 1Google Scholar; Chick, v. Ramsdale (1836) 1 Curteis. 34Google Scholar; Woods, v Woods (1840) 2 Curteis 516Google Scholar, in each of which penance was enjoined against laymen.

72. (1937) 1 K.B. 316 at 333.

73. (1942) 2 K.B. 253.

74. At 259: see also 257 and per Lord Clanson at 256. The jurisdiction was not expressly abolished by the Ecclesiastical Jurisdiction Measure 1963. Sec s.82(2) and (4).

75. (1955) 1 All E.R. 387.

76. At 393–394.

77. The Canon Law of the Church of England at 67–68Google Scholar. A footnote draws attention to Sir H. Jenner Fust's dictum in Wynn. v. Davies and Weaver (1835) 1 Curteis 69 at 75Google Scholar; “The law may exist, though it may have been suffered to sleep.”

78. See Phillimore's Ecclesiastical Law (2nd ed) at 1721, 1723. 1725, 1728 and 1733.

79. Ecclesiastical Law Journal No. 1 at 22–23. See Revised Canons Ecclesiastical, Canon B 5. para 1 (amending canon No. 3); Church of England (Worship and Doctrine) Measure 1974. s. 1(5)(b).

80. See 14 Halsbury's Laws of England (4th ed) at 934, note 10.

81. See the Act of Uniformity 1661; Church of England (Worship and Doctrine) Measure 1974 s. 1(5)(b). Phillimore v. Machon (1876) 1 P.D. 481.Google Scholar

82. In re St. Mary's Westwell (1968) 1 WLR 513 at 516Google Scholar; Bishop of Exeter v. Marshall (1868) L.R. 3 H.L. 17 at 53–56Google Scholar. This rule might be altered by the courts if it is correct to regard it as one of practice and procedure: see Burder v. O'Neill (1863) 9 Jur N.S. 1109Google Scholar; Bishop of Norwich v. Pearse (1868) L.R. 2 A & E 281Google Scholar. It is not caught by the Ecclesiastical Jurisdiction Measure 1961 ss. 45(3) and 48(5).

83. Bishop of Exeter v. Marshall (1868) L.R. 3 H.L. 17 at 55 per Lord Westbury.Google Scholar