Page:EB1911 - Volume 08.djvu/894

 the property of a church is held). In the case of “established” Churches, on the other hand, whatever the varying principle on which the system is based, or the difference in its practical application, the essential conditions are that the ecclesiastical law is also the law of the land, the decisions of the church courts being enforced by the civil power. This holds good both of the Roman Catholic Church, wherever this is recognized as the “state religion,” of the Oriental Churches, whether closely identified with the state itself (as in Russia), or endowed with powers over particular nationalities within the state (as in the Ottoman empire), and of the various Protestant Churches established in Great Britain and on the continent of Europe.

Writers on the theory of ecclesiastical law, moreover, draw a fundamental distinction between that of the Church of Rome and that of the Protestant national or territorial Churches. This distinction is due to the claim of the Roman Catholic Church to be the only Church, her laws being thus of universal obligation; whereas the laws of the various established Protestant Churches are valid—at least so far as legal obligation is concerned—only within the limits of the countries in which they are established. The practical effects of this distinction have been, and still are, of enormous importance. The Roman Catholic Church, even when recognized as the state religion, is nowhere “established” in the sense of being identified with the state, but is rather an imperium in imperio which negotiates on equal terms with the state, the results being embodied in (q.v.) between the state and the pope as head of the Church. The concordats are of the nature of truces in the perennial conflict between the spiritual and secular powers, and imply in principle no surrender of the claims of the one to those of the other. Where the Roman Catholic Church is not recognized as a state religion, as in the United States or in the British Islands, she is in the position of a “free Church,” her jurisdiction is only in foro conscientiae, and her ecclesiastical laws have no validity from the point of view of the state. On the other hand, the root principle of the ecclesiastical law of the established Protestant Churches is the rejection of alien jurisdiction and the assertion of the supremacy of the state. The theory underlying this may vary. The sovereign may be regarded, as in the case of the Russian emperor or of the English kings from the Reformation to the Revolution, as the vicar of God in all causes spiritual as well as temporal within his realm. As the first fervent belief in the divine right of kings faded, however, a new basis had to be discovered for a relation between the spiritual and temporal powers against which Rome had never ceased to protest. This was found in the so-called “collegial” theory of Church government (Kollegialsystem), which assumed a sort of tacit concordat between the state and the religious community, by which the latter vests in the former the right to exercise a certain part of the jus in sacra properly inherent in the Church (see ). This had great and lasting effects on the development of the theory of Protestant ecclesiastical law on the continent of Europe. In England, on the other hand, owing to the peculiar character of the Reformation there and of the Church that was its outcome, no theory of the ecclesiastical law is conceivable that would be satisfactory at once to lawyers and to all schools of opinion within the Church. This has been abundantly proved by the attitude of increasing opposition assumed by the clergy, under the influence of the Tractarian movement, towards the civil power in matters ecclesiastical, an attitude impossible to justify on any accepted theory of the Establishment (see below).

Protestant ecclesiastical law, then, is distinguished from that of the Roman Catholic Church (1) by being more limited in its scope, (2) by having for its authoritative source, not the Church only or even mainly, but the Church in more or less complete union with or subordination to the State, the latter being considered, equally with the Church, as an organ of the will of God. The ecclesiastical law of the Church of Rome, on the other hand, whatever its origin, is now valid only in so far as it has the sanction of the authority of the Holy See. And here it must be noted that the “canon law” is not identical with the “ecclesiastical law” of the Roman Catholic Church. By the canon law is meant, substantially, the contents of the Corpus juris canonici, which have been largely superseded or added to by, e.g. the canons of the council of Trent and the Vatican decrees. The long projected codification of the whole of the ecclesiastical law of the Church of Rome, a work of gigantic labour, was not taken in hand until the pontificate of Pius X. (See also and .)

The ecclesiastical law of England is in complete dependence upon the authority of the state. The Church of England cannot be said, from a legal point of view, to have a corporate existence or even a representative assembly. The Convocation of York and the Convocation of Canterbury are provincial assemblies possessing no legislative or judicial authority; even such purely ecclesiastical questions as may be formally commended to their attention by “letters of business” from the crown can only be finally settled by act of parliament. The ecclesiastical courts are for the most part officered by laymen, whose subordination to the archbishops and bishops is purely formal, and the final court of appeal is the Judicial Committee of the Privy Council. In like manner changes in the ecclesiastical law are made directly by parliament in the ordinary course of legislation, and in point of fact a very large portion of the existing ecclesiastical law consists of acts of parliament.

The sources of the ecclesiastical law of England are thus described by Dr. Richard Burn (The Ecclesiastical Law, 9th ed., 1842):—“The ecclesiastical law of England is compounded of these four main ingredients—the civil law, the canon law, the common law, and the statute law. And from these, digested in their proper rank and subordination, to draw out one uniform law of the church is the purport of this book. When these laws do interfere and cross each other, the order of preference is this:—‘The civil law submitteth to the canon law; both of these to the common law; and all three to the statute law. So that from any one or more of these, without all of them together, or from all of them together without attending to their comparative obligation, it is not possible to exhibit any distinct prospect of the English ecclesiastical constitution.’ Under the head of statute law Burn includes ‘the Thirty-nine Articles of Religion, agreed upon in Convocation in the year 1562; and in like manner the Rubric of the Book of Common Prayer, which, being both of them established by Acts of Parliament, are to be esteemed as part of the statute law.’&#8202;”

The first principle of the ecclesiastical law in England is the assertion of the supremacy of the crown, which in the present state of the constitution means the same thing as the supremacy of parliament. This principle has been maintained ever since the Reformation. Before the Reformation the ecclesiastical supremacy of the pope was recognized, with certain limitations, in England, and the Church itself had some pretensions to ecclesiastical freedom. The freedom of the Church is, in fact, one of the standing provisions of those charters on which the English constitution was based. The first provision of Magna Carta is quod ecclesia Anglicana libera sit. By the various enactments of the period of the Reformation the whole constitutional position of the Church, not merely with reference to the pope but with reference to the state, was definitely fixed. The legislative power of convocation was held to extend to the clergy only, and even to that extent required the sanction and assent of the crown. The common law courts controlled the jurisdiction of the ecclesiastical courts, claiming to have “the exposition of such statutes or acts of parliament as concern either the extent of the jurisdiction of these courts or the matters depending before them. And therefore if these courts either refuse to allow these acts of parliament, or expound them in any other sense than is truly and properly the exposition of them, the king’s great courts of common law may prohibit and control them.”

The design of constructing a code of ecclesiastical laws was entertained during the period of the Reformation, but never carried into effect. It is alluded to in various statutes of the reign of Henry VIII., who obtained power to appoint a commission to examine the old ecclesiastical laws, with a view of deciding which ought to be kept and which ought to be abolished;