CANON LAW-THEN AND NOW
By PROFESSOR NORMAN SYKES*
THE beginning of the difficult task of revising its canon law by the Church of England through its convocations has excited as little interest as concern amongst a laity who are unable to imagine that that affects them so slightly today can ever have entered so intimately into the lives of their mediaeval predecessors. Not even the professional humorists have discovered in it another illustration of the ubiquity of io66 and All That, though in point of fact the Norman Conquest was a factor of great influence in the subsequent development of church courts and their jurisdiction. It may even be wondered how many proud and learned bearers of the titles LL.B. and LL.D. are reminded thereby that the plural implies their know- ledge of canon as well as of civil law? It is not therefore simply an exercise of legal antiquarianism to which the established Church has set its hand in the revision and rehabilitation of its canon law.
To our mediaeval forefathers the operation and force of the canon law were a matter of frequent experience, not invariably pleasant. All questions relating to the probate of wills, to the betrothal and contract of marriage, all offences against the moral precepts of the Church, and all cases to which one of the parties was a clericus, fell within the province of ecclesiastical law ; and in total these matters constituted a not inconsiderable part of the lives and doings of the laity. Nor was the Church lacking in a formidable hierarchy of courts in which to prosecute suits and enforce penalties. At the bottom of this hierarchy came the archdeacon's court, which, because it stood nearest to the majority of the people, incurred for itself and its officers the greatest odium. Gilbert Burnet, it may be recalled, hoped that " archdeacons, with many other burdens that lie heavy on the clergy, shall be taken away." Next came the consistory court of the diocesan bishop, and finally the several courts of the arch- bishop of the province. Not even if and when all these stages of judicial procedure had been successfully negotiated might the accused person rejoice that his warfare was accomplished ; for at any stage his cause might be called for determination at Rome, and an appeal from the decision of the ultimate court in this country lay to the Apostolic See. The mediaeval layman therefore had abundant occasion for concern with the canon law of the Church.
Springing originally from regulations locally framed to meet local needs, canon law began to attain a wider and more general reference with the disciplinary decrees accepted by various ecclesiastical councils from Nicaea to Chalcedon. But these canons needed both expansion and application to particular circumstances, and this pro- cess led naturally to the collection of series of canons, of which that compiled at Rome at the beginning of the sixth century by Dionysius Exiguus was the most influential. There followed a period characterised by the circulation of a number of legal forgeries, of which the most renowned was that of the pseudo-Isidore, which consisted in the filling of gaps caused by the absence of authentic decretals and canons, and which had a marked tendency to strengthen the independence of ecclesiastical law and discipline by emphasising the power and authority of the papacy. Earlier English historians, *Professor of Ecclesiastical History at Cambridge.
stimulated perhaps by a native insular pride of independence .and more probably inspired by the Tudor repudiation of all foreign jurisdiction, championed the theory that " the canon law of Rome, although always regarded as of great authority in England, was not held to be binding on the courts." Thanks to the work of F. W. Maitland and Z. N. Brooke this view has been abandoned, and it is recognised that in the mediaeval Ecclesia Anglicana the pope's writ ran and the Roman canon law was in operation precisely as elsewhere in western Christendom.
Notwithstanding, there were stages and degrees in the history of the operation of this law in England. The Anglo-Saxon church, thanks to its comparative isolation from the Continent generally and Rome in particular, associated with the collection of canons which it shared in common with the western Church ecclesiastical laws enacted by its kings in their witenagemot and penitentials or handbooks of moral and pastoral theology for the discipline of individuals. With the Norman Conquest and the famous decree of William I, separating the ecclesiastical from the civil courts, the way was opened for the introduction by Archbishop Lanfranc of a col- lection of canons, including the forged decretals ; and when Henry II tried to arrest this process, his conflict with Becket, issuing in the latter's murder, led to the substantial victory of the papacy, though in some particular respects, notably in all matters relating to eccle- siastical patronage, England continued to follow its own course and not to obey the canon law.
In general, however, the conclusion is established that " the English Church recognised the same law as the rest of the Church ; it pos- sessed and used the same collections of Church law that were em- ployed in the rest of the Church." A cursory glance at the matters embraced in this law serves, as has been already observed, to make clear its intimate relations with the laity no less than the clergy. But, in addition to the existence of Church courts and of the canon law administered by them, there were certain peculiarities of ecclesiastical procedure which could hardly be expected to commend themselves to lay victims. In accordance with theological doctrine and practical experience of the unruly wills and affections of sinful men, Church courts assumed the guilt of the accused until he could prove himself innocent (generally by the production of compurgators to swear to his innocence), and even in such event the acquitted was not free from pecuniary responsibility for the costs of the action. They could begin a process upon information, and the profession of " informer " brought general odium on its practitioners ; and their infliction of the penalty of excommunication, lesser and greater, and of a graduated scale of fines was intensely unpopular amongst the laity. The officers of the ecclesiastical courts likewise drew upon themselves a heavy weight of .dislike. (The summoner is one of the least attractive characters in Chaucer's Prologue.) There is little ground for surprise, therefore, that in the sixteenth century the jealousy of the civil lawyers for the close preserve maintained by their rival-practitioners of the canon law, and the repugnance of the laity to the procedure of the Church courts, readily combined with the initiative of a Tudor king to overthrow much of the mediaeval system.
Much, but not all ; for it was a leading characteristic of the Tudor reformation to preserve considerable continuity with the Middle Ages ; and the canon law shared in this treatment. Hinc Mae lachrymae. By the Act of Submission of the Clergy of 1534 pro- vision was made for the appointment of a commission to survey the existing canon law, which meanwhile was to continue in force except where " contrariant or repugnant to the king's prerogative royal, or the customs, laws, or statutes of this realm." The failure to imple- ment this official revision of the canon law was productive of much confusion and uncertainty as to which parts retained their force. By the same statute the convocations were empowered to make new canons, subject to the royal licence and assent thereto ; and accord- ingly James I signed and authorised the 141 canons of 1604 made by Canterbury Convocation. Lord Chief Justice Coke maintained, however, that only the clergy, and not the laity, were bound by them. Meanwhile a severe blow had been delivered at the academic study of canon law by Thomas Cromwell's injunctions to the universities in 1535 substituting lectures in civil law for those in canon law, and by the foundation by Henry VIII at Oxford and Cambridge in 154o
of Regius Professorships in civil law. In the sphere of practice an Act of Parliament of 1545 allowed laymen who were doctors only of civil law to become judges in the ecclesiastical courts. Thus in principle the victory of the civil law and of its practitioners over the canon law and its doctors was won ; and although Doctors' Commons continued until 1857 as a centre of lawyers learned in-and practising canon law, both the ecclesiastical law and the Church courts fell into increasing desuetude, especially after the Toleration Act of 1689.
Thus is passed beyond the memory of man to recall the ubiquitous intervention of the canon law and the courts Christian in the lives of the mediaeval laity. Nor does the projected Anglican revision of its canon law presage any return to 1066 and All That. Chaucer's summoner with his sparse Questio quid juris, and his Significavit is not likely to reappear as a familiar figure of English life. It will suffice if the present modest project restores amongst clergy and laity of the established Church an agreed body of ecclesiastical rules to form the basis of consensual obedience ; and if the universities confer once more degrees which constitute their possessors in reality as well as in name bachelors or doctors utriusque legis, of canon as well as of civil law.
Previous page
