II. Sources of Ecclesiastical Law.

§ 14.

1. GENERAL.

DURING the Anglo-Saxon period civil and ecclesiastical authority worked everywhere in concert. In the absence of any conflict between the two, the fundamental questions as to the recognition of ecclesiastical laws by the state remained undecided.1 The idea that resolutions of wider communities are directly binding on a narrow, restricted one was not fully developed. Thus even the clergy did not perhaps account themselves legally bound by the resolutions of general councils. They obeyed them, however, just as they observed the judgments of notable local councils abroad, as expressing the collective opinion of esteemed persons. The subordination of the clergy to the pope and his commands was more strict in the

1 Compare, for instance, Ine (king of Wessex, 688 to 726-28; perhaps the text is Alfred's revision of Ine's laws) c 1: First we bid that the servants of God duly observe the laws. Then we bid that the laws and ordinances of the whole people be likewise duly observed. Æthelred (council of Ensham, 1006-11) VI, c 51: And if for a spiritual penance (god-bôtan) a money penance (feoh-bôt) becomes payable, such penalty as wise temporal law-givers (wise worold-witan) fix for punishment, then shall this rightly and according as the bishops think fit be devoted to the purchase of prayers and to the profit of the poor and never to vain worldly ornaments, but as temporal penalty for spiritual wants (ac for worold-steôran tô godcundan neôdan) etc.

2 This view is supported, for example, by the following occurrences: (i) At the council of Herutford, 673 (Beda IV, 5; printed in Haddan and Stubbs, Councils III, 118 ff.), Theodore, archbishop of Canterbury, asked those present si consentirent, ea quae a patribus canonice sunt antiquitus decreta custodire. They answered, optime omnibus placet, quaequae definierunt sanctorum canones patrum, nos quoque omnes alacri animo libentissime servare. Theodore then produced a book of canons (probably the collection of Dionysius Exiguus, H. and St. III, 121, note) and caused them to accept ten specially selected from the book. (That stress was laid on these resolutions is to be explained by the fact that only in 664 had the schism in the church been healed by the council of Streoneshalch.) (ii) Acceptance of the first five general councils at Haethfelth, 680 (Beda IV, 17, 18, in Haddan and Stubbs III, 141 ff.): Suscepimus sanctas et universales quinque synodos beatorum et Deo acceptabilium patrum; id est et synodum quae facta est in urbe Roma, in tempore Martini Papae (i.e. the Lateran council of 649, not a general council). (iii) Opposition of the western churches under Charlemagne at the mainly Frankish council of Frankfurt, 794, to the resolutions of the general council of Nicaea, 787, touching the adoration of images.

Anglo-Saxon kingdoms in which the church had been founded by Roman missionaries, that is in the southeast. The greater independence of the church in the northern kingdoms was first broken by the council of Streoneshalch (664) and by the administration of archbishop Theodore of Canterbury (668-690). Instances occur of popes issuing decrees upon their own sole authority; 3 but as a rule, when the missionary stage was passed, the supreme pontiff avoided coming to important decisions without the concurrence of the Anglo-Saxon clergy and of the executive of the state. When he made the attempt, he did not always carry his point.5

The canon law gained a hold in England through the ordinance of William I whereby it was laid down that the ecclesiastical courts in the cases referred to them by that ordinance should decide secundum canones et leges episcopales, whilst secular courts had to give judgment secundum hundret, that is, according to the law of the land. By canones et leges episcopales was probably understood the whole body of church law, whether of native or of foreign origin, as it was comprised in the collections of Burchard of Worms and others, and disseminated in England mainly through the agency of the Norman bishops."

Ecclesiastical law then of every kind was recognized by the state as authoritative, but within a sphere which the state itself marked out. Beyond that limit it was not acknowledged. This state of affairs lasted until the reformation. It might indeed be doubted how far John's submission to the suzerainty of the pope involved, for a time, the right of the latter to make ordinances in temporal matters. In point of fact, at all events, the secular courts from the first paid no regard to any possible right of the kind. And even the principle of papal control in things temporal was soon dismissed. As parlia

E.g. the instructions of Gregory I and Honorius I as to the delimitation of the metropolitan districts. At that time, however, the country was still, for the most part, pagan; moreover, Gregory's instructions remained unexecuted.Compare also the councils of Pincahala and Celchyth, 787 (Haddan and Stubbs, Counc. III, 447) c 8: Ut privilegia antiqua a sancta Romana sede delata Ecclesiis omnibus conserventur. Ôn such privileges, the genuineness of which is, however, in some cases disputed, cf. Haddan and Stubbs III, 461 note k, and Stubbs, Introduction to Epistolae Cantuarienses (Rer. Brit. Ser. No. 38, vol. II) pp. xxvii ff.

4 Compare, for instance, § 33 near notes 13 ff. as to the events connected with the raising of Lichfield to an archbishopric and the subsequent abolition of this archbishopric.

5 An instance of failure is in the papal decision upon the first appeal of Wilfrid (678) against the division of his bishopric by archbishop Theodore.

Philipps, Engl. Rechtsgesch. I, 252 ff. Upon the several collections see Richter, Kirchenrecht § 53. Burchard's collection was made between 1012 and 1022. Ivo of Chartres, to whom other considerable collections are ascribed, died in 1115 or 1117. The extent to which, e.g., the so-called leges Henrici I (a law-book, probably dating from 1110-18) use these collections of canon law is exhibited by the references in Schmid, Gesetze der Angelsachsen, which, however, are to be corrected according to the statements of Liebermann in Forschungen zur Deutschen Geschichte XVI, 582.

7 In the year 1366, at latest. Compare $28, note 1. On the refusal of the temporal magnates in 1236 to introduce as law of the land a legitimatio per

ment entered the lists against the temporal power of the pope, so also did it oppose the influence of the English church councils on civil law. Edward III in 1377 declared at the suit of the lower house that without its assent no law and no ordinance should be promulgated on petition of the clergy.

It was, of course, a fixed rule that civil courts in the sphere of their competence could only be guided by secular law. Thus the issue between the ecclesiastical and the civil tribunals turned solely on the question how far the former were competent."

The authorities of the church during this period regarded as binding, in the majority of cases, all the laws of the church, general or English, 10 at variance with secular law or in agreement with it.

In this period as in the preceding one we have the feature that resolutions of general councils were repeated at English synods. But this repetition perhaps implied no more than a publication or an emphasizing of legal forms already binding. Opposition on the part of the synod found expression merely in the shape of a petition to the for dispensation. The collection of Gratian (1141-50) pope

11

subsequens matrimonium, corresponding to the principle of church law, see $ 60, note 96.

8 Petition of the commons 51 Ed. III (1376/77), Rotuli Parliamentorum II, 368, No. 46: Item suppliont les dites Communes au Roi lour Seigneur, que null Estatut ne Ordenance soit fait ne grante au Petition du Clergie si ne soit par assent de voz Communes; Ne que voz dites Communes ne soient obligez par nulles Constitutions q'ils font pur lour avantage sanz assent de voz dites Communes. Car eux ne veullent estre obligez a null de voz Estatutz ne Ordenances faitz sanz lour assent. King's answer: Soit ceste matire declaree en especial. Cf. Petition of the commons 18 Ed. III (1344), Rotuli Parliam. II, 149, No. 8: Item prie la Commune, que nulle Petition faite par la Clergie, que soit en decresce ou damage des Grantz ou de la Commune, soit grantez, tan que il soit triez par le Roi et tout son Conseil, que saunz damage des Grauntz et de sa Commune bonement se peusse tenir. Answer of the king and the magnates in parliament: Quant al oytisme Article, Il plest au Roi et a son Conseil que ensi soit.-As to the question whether in the period of transition from the beginning to the end of the fourteenth century the assent of the representatives of the towns and shires to ordinances issued on petition of the clergy was considered requisite, see Stubbs, Const. Hist. II, 626 f. c 17 § 293.

9 On this point compare § 60.

10 Essential uniformity in legal matters for the northern and the southern province was established by a resolution of the northern convocation in 1463 :Memorandum quod praelati et clerus in Convocatione, 1463, concedunt unanimiter quod effectus constitutionum provincialium Cantuariensis Provinciae ante haec tempora tent, et habit. constitutionibus Provinciae Eboracensis nullo modo repugnantium seu praejudicialium et non aliter nec alio modo admittantur; et quod hujusmodi constitutiones Provinciae Cantuariensis, et effectus earundem, ut praefertur, inter constitutiones Provinciae Eboracensis prout indiget et decet inserantur, et cum eisdem de caetero servandae incorporentur et pro jure observentur. (Printed in Trevor, The Convocations of the two Provinces p. 84 after Reg. Bothe Arch. Ebor.)-A convocation of 1466 (archb. Nevill) adopted in like manner various constitutions of Canterbury.

For instance, at the council of Oxford, 1222, c 50 the resolutions of the fourth (general) Lateran council (1215) were accepted: .. Lateranense concilium sub sanctae recordationis papa Innocentio celebratum, in praestatione decimarum et aliis capitulis firmiter praecipimus observari (Wilkins, Concilia I, 585.)—The popes recognized in general the right of the

and the other books of canon law made their way into England soon after their appearance. Nevertheless the acceptance here of the general rules of church law as contained in such books was not absolutely unconditioned. Nay, to some of the provisions effect was not permanently given even by the ecclesiastical courts.12 The dictum, moreover, was sometimes pronounced even at this period that ordinances and resolutions of a general council were under certain circumstances only binding if they had been formally adopted in England. 13 This was an after-effect of the views which had prevailed at an earlier time; and these earlier views were in course of the reformation again generally accepted.

The reformation produced a change in the sources from which ecclesiastical law was derived.

Henceforth became inoperative: (1) papal ordinances; this was a natural consequence of the transference of the supremacy to the English kings; (2) resolutions of general councils, it being now commonly held that England was not bound by such resolutions unless English councils had expressed assent to them. In lieu of

lower authorities to raise objection for special reasons to regulations which in themselves were binding, and to call for the decision of the papal see. c 5 Decretals of Gregory IX (lib. Extra) I, 3. Richter, Kirchenrecht § 166, note 6. Compare, e.g., Matthaeus Paris. Chron. Majora (Rer. Brit. Scr. No. 57) III, 418 f., year 1237, upon the appeal on the part of the English bishops for a papal decision when the legate Otho, in accordance with the provisions of the Lateran council IV, wished to issue an ordinance against pluralities. Archbishop Peckham, in the introduction to his constitutions, published at the provincial synod of Lambeth, 1281, observes (Wilkins, Concilia II, 51): . Et quia Lugdunense concilium (the 14th general, 1274) ultimo celebratum, eo enormius, quo recentius infringitur; ne quis possit se in temeritate hujusmodi per ignorantiam excusare, ipsum volumus in principio recenseri; non solum ut omnibus innotescat, verum etiam, ut si quid in ipso videatur intolerabile istius regionis consuetudini, quae in multis ab omnibus aliis est distincta, circa illud temperamentum apostolicae clementiae humiliter imploretur.

12 Examples of provisions of canon law not accepted in England will be found in Gibson, Codex, Introduction p. 27.

13 Johannes de Actona, p. 37, gloss. to c 14. Const. Otho (1237), in which the bishops were directed to enforce the ordinance of a general council: Tunc haec constitutio vel concilium nunquam acceptabatur a subditis in hac parte, igitur non videtur arctare. He adds a somewhat long explanation of the cases in which the assent of smaller communities is requisite to make a general law valid in their district.

14 It was on this point that the first dispute of Henry VIII with the clergy turned (1515). Dr. Standish and Dr. Vesey maintained that England was not bound by canons which had never been adopted here. Cf. Perry, Hist. of Engl. Ch. II, 23 c 2 § 13; also, p. 24, note 1, for the question how far the details of the quarrel are historically authenticated.-After the reformation the resolutions of all so-called general councils after the eighth general (ecumenical) council (the fourth of Constantinople, 869) were held not to be directly binding for the further reason that the eastern church, also a part of the universal church, was not represented thereat. Phillimore, Eccles. Law 1921.-The convocation of Canterbury in a declaration of July 20th, 1536 (Wilkins, Concilia III, 808) laid down that a true general council could only be summoned with the assent of all independent Christian princes: We think that neither the bishop of Rome, nor any one prince, of what estate, degree or preeminence soever he be, may by his own authority call, indict, or summon any general council, without the express consent, assent, and agreement of the residue of christian princes,

these came royal ordinances of ecclesiastical import, designated, for the most part, 'injunctions.' The higher church officers issued independently, now as before, their general mandates. Legislative powers were left to the convocations, but their resolutions required the king's licence and assent; 15 furthermore, it was provided that they were not entitled to make or put into execution any canon repugnant to the king's prerogative or the law of the land.16

Such rules of ecclesiastical law as were already in force were to continue valid, in so far as they were not in conflict with royal pre

and especially such as have within their own realms and seigniories 'Imperium merum,' that is to say, of such as have the whole intire and supreme government and authority over all their subjects, without knowledging or recognizing of any other supreme power or authority; -Cf. further art. 21 of thirty-nine articles, appendix XI.

With reference to the Vatican council of 1870 the upper house of the convocation of Canterbury resolved (16th June, 1871; Chron. of Conv. Cant. 1871, pp. 441 ff.):

That the Vatican Council has no just right to be termed an Oecumenical or General Council, and that none of its decrees have any claim for acceptance as canons of a General Council.

That the dogma of Papal Infallibility now set forth by the Vatican Council is contrary to Holy Scripture, and to the judgment of the ancient

Church universal.

That the assumption of supremacy by the Bishop of Rome in convening the late Vatican Council contravenes canons of the universal

Church.

That there is one true Catholic and Apostolic Church, founded by our Lord and Saviour Jesus Christ; that of this true Catholic and Apostolic Church the Church of England and the Churches in communion with her are living members; and that the Church of England earnestly desires to maintain firmly the Catholic faith as set forth by the Oecumenical Councils of the universal Church, and to be united upon those principles of doctrine and discipline in the bonds of brotherly love with all Churches in Christendom.

The lower house of the province of Canterbury had on Feb. 15th, 1871, passed a resolution identical with the above excepting a few words in the last sentence of the paragraph, which run: to maintain firmly the Catholic faith and discipline as declared and settled by the undisputed Councils of the universal Church. Chron. of Conv. 1871, p. 143. Compare also the report of the committee in Appendix to Chron. of Conv. 1871, where it is declared that the members of the Vatican council were not free because they were bound by the oath of obedience to the bishop of Rome customary in the Roman catholic church, the words of the oath being: Papatum Romanum adjutor ero ad retinendum contra omnem hominem and Haereticos, schismaticos, et rebelles Domino nostro (Papae) pro posse persequar et impugnabo.

15 Compare § 54, note 56.

16 25 Hen. VIII (1533/4) c 19 (Act of Submission) s 3: Provyded alway that no canons constitucions or ordynaunce shalbe made or put in execucion within this Realme by auctorytie of the convocacion of the clergie, which shalbe contrayant or repugnant to the Kynges prerogatyve Royall or the customes lawes or statutes of this Realme; This act was repealed by 1 & 2 Phil. & Mary (1554 and 1554/5) c 8 s 3, revived by 1 Eliz. (1558/9) c 1 § 2. According to an opinion of the judges (compare § 54, note 56) canons are inoperative even after receiving royal assent if they offend in the respects indicated. The principle that laymen are not bound by any resolutions of church councils unless ratified by parliament was upheld by the courts especially during the struggle against the canons of 1604, and has remained since then a fixed basis of legal decisions.

H.C.

M