“The claim to have succeeded in covering every side of Church life at the conclusion of the herculean labour of codification on this scale would indeed be a bold one, and one very uncongenial to the spirit of English law”, comments the report entitled ‘The Canon Law of the Church of England’. Despite the production of a Code of Canon Law for the Church of England, the provisions of law as applying to the Church of England are much more complex, involving not only the provisions of the Code, but also Common Law, Statute Law, judicial decisions and occasional survivals from Mediaeval Canon Law. For this reason although the ecclesiastical courts of the Church of England and of the Roman Catholic Church have common origins and features, there are also many differences, not only in structure, but in the material that comes before them.

Several matters of legal significance were dealt with by the Governing Body of the Church in Wales at its April 1990 meetings at St. David's University College, Lampeter. Amendments to the Constitution were passed concerning two matters of nomenclature, the preparation of inventories, the qualification of parish audiors and pension arrangements for the clergy. In addition two bills were successfully passed and became Canons of the Church in Wales.

Another well known name from the golden age of the Cambridge law school was that of John ‘of Aton’. The name, however, requires some comment before proceeding to the man. In the printed edition of his work he is ‘de Athon:’ or ‘de Aton’, which Stubbs rendered as Ayton, on the assumption that it derived from the place in Yorkshire. Maitland said it was convenient to follow this spelling, though he pointed out that the papal chancery addressed him as ‘Johannes Johannis de Acton’. ‘Acton’ was used in the Dictionary of National Biography, and is now the preferred spelling, though more cautious writers have adopted the neutral ‘Athon’. In view of the strong East Anglian bias of the Cambridge law school in the time of Bishop Bateman, it is possible that the name derived from Acton in Suffolk. But that is only so if the papal chancery may be trusted; Athon is not itself a variant of Acton. If, on the other hand, the spelling in the treatise is preferred – and it certainly seems more common in all the manuscripts – Ayton (formerly Aton) remains a more likely identification than any other. Certainly the doctor's connections in his professional career seem to have been with the north rather than with East Anglia.

Although the protection of churches and holy places was embodied froman early date in Canon law, the law of sanctuary as it applied in England was necessarily part of the secular common law. The Church never had the physical power to resist the secular authorities in the administration of justice, and although those who violated sanctuary were liable to excommunication the Church could not in cases of conflict prevent the removal from sanctuary of someone to whom the privilege was not allowed by the law of the land. The control of the common law judges was, indeed, tighter than in the case of benefit of clergy. The question whether an accused person was or was not a clerk in Holy Orders was ultimately a question for the ordinary, however much pressure might be put upon him by the judges; but the question of sanctuary or no sanctuary was always a question for the royal courts to decide, upon the application of a person who claimed to have been wrongly arrested in a privileged place. The present summary is confined to the position under English law.

The best known of all medieval English canonists is William Lyndwood, compiler of the Provinciale. His name derives from what is now Linwood, in Lincolnshire, where his father John (d. 1419) was a woolman, and where (according to his will) he was born. William was sent to Cambridge, where he studied at Gonville Hall and is said to have become a fellow of Pembroke Hall. In the old library of Gonville and Caius College there was an inscription in the window requesting prayers for Lyndwood as ‘hujus collegii quondam commensalis’. His lectures have not survived, and the exact dates of his university residence are not known; but he was certainly a doctor of both laws by 1407, when he was ordained priest. By that time he already held a number of benefices – the earliest we know of was the wardenship of a hospital in 1396 – and he was to collect many more in the course of his career. These were not actual occupations, but sources of income intended to maintain a lawyer destined for high office.

In his article ‘The Religious Dimension of the Education Reform Act 1988’ (Ecclesiastical Law Journal No. 5, July 1989, pp 32–52), J. D. C. Harte has provided a helpful summary of the new legal framework in the context of the legal history. His interpretation of the implications of the legislation for the theory and practice of religious education in the schools is less satisfactory, and the theological assumptions of his article are at least questionable. It is thus as a religious educator and (if you like) a theologian specialising in educational problems that I would like to respond. In order to appreciate the exposition of Mr Harte, it will be necessary first to have some insight into the history and recent developments of religious education.

1. It was over a late night glass of Scotch, a number of years ago, that Graham Routledge and I first talked of the issues I am asked to address this afternoon. Chancellor Routledge and I differed on a number of subjects, political and ecclesiastical, but we discovered common cause in the recognition of the importance of an impartial and unemotional examination of the doctrinal, ecclesiological and constitutional implications of any future Anglican- Roman Catholic unity. It was during one such conversation that Graham told me of his hopes for the establishment of this Society, which he saw as, amongst other things, the most appropriate forum for the bringing together of the necessary disciplines and professions for such scholarly and ecumenical discussion. Graham had been able to initiate some discussion of the question within the English Anglican Roman Catholic Committee (of which he was a distinguished member). But the complexities of both canon and constitutional law, and, problems concerning the interpretation of ecclesiastical history, reinforced his judgement that quiet and continuing consideration was required in a society such as ours as well as in ecumenical committees.

The immediate reason for this paper is the imminent coming into force of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 which makes several references to ‘chancellor’ but does not specify in which of his offices the chancellor will be acting. A wider reason is that chancellors are increasingly needing to consider the capacities in which they act for such purposes as issuing practice directions and issuing instructions about the care of churches and churchyards. In the 1991 Measure, section 6(3) requires every chancellor to issue written guidance to parochial church councils (PCCs) about trees in churchyards. Section 11 (8) requires every chancellor to issue written guidance to PCCs, ministers and churchwardens as to those matters which he considers to be of such a minor nature that they may be undertaken without faculty. Section 13(6) allows a chancellor ‘of his own motion’ to issue an injunction to restrain an unlawful act or to make a restoration order if such an act has been done. Section 14 requires every chancellor to confer jurisdiction to grant faculties to archdeacons to such extent as is prescribed in rules. Section 18 provides a procedure whereby a chancellor may by instrument authorise the demolition of a church where this is necessary in the interests of safety or health without a faculty having been sought or granted. When the chancellor acts under these various sections will he do so as chancellor, as vicar-general or as official principal, or in all three capacities, and should he specify in which capacity he acts? In relation to directions or instructions given outside the authority of such a measure do similar questions arise?

In Act Three of Shakespeare's King Richard III the Duke of Buckingham asks Cardinal Bourchier to try and persuade Elizabeth Woodville to release the young Duke of York from sanctuary at Westminster. In the event of such tactics failing, Buckingham wishes Lord Hastings to accompany the Cardinal to Westminster and ‘… from her jealous arms pluck him perforce.’ The Cardinal's initial reaction is one of horror:

‘…if she be obdurate

To mild enteraties god in heaven forbid

We should infringe the holy privilge

Of blessed sanctuary not for all this land

Would I be guilty of so deep a sin.’

When the Shops Bill was defeated at its Second Reading in the House of Commons in the early hours of 15 April 1986, Mrs Thatcher is believed to have said that a “mercy killing” had been performed. The Bill had run into considerable difficulty under a weight of public opposition, coming at the time of some disarray in the Government, following the Westland and Leyland controversies and the resignation of two Cabinet Ministers. It was only the second time since 1924 that a Government Bill had been defeated at Second Reading, and was caused by 72 Government backbenchers defying a three-line whip and voting with the opposition.

In February 1988 a group of German, Italian and Spanish scholars, principally professors of ecclesiastical law, met on the politically if not theologically neutral ground of Geneva to consider the creation of a European body linking scholars working in this field in the various member States of the European Community.