UNIV. OF MISH. LAW LIBRARY. THE ECCLESIASTICAL LAW OF THE Church of England. BY SIR ROBERT PHILLIMORE, D.C.L., OFFICIAL PRINCIPAL OF THE ARCHES COURT OF CANTERBURY; MEMBER OF HER MAJESTY'S MOST HONORABLE PRIVY COUNCIL, * Episcopatus unus, cujus a singulis in solidum pars tenetur."-De Unit. Eccles. St. Cypr. IN TWO VOLUMES. VOL. II. LONDON: HENRY SWEET, 3, CHANCERY LANE; ECCLESIASTICAL LAW. PART IV. DISCIPLINE OF THE CHURCH. CHAPTER I. DISCIPLINE OVER THE LAITY. the ecclesiasti Is England the authority and power of the ecclesiastical Sources of the courts as to the laity is founded on a principle, recognized authority of by the unwritten common law, and in part by the statute cal courts. law, that the ordinary ought in certain matters to administer justice over them pro salute animæ. The sentence pronounced by such courts could be enforced only by excommunication, that is, by depriving the person sentenced -according to the greater or less severity of the sentencefrom the benefit and use of all or of certain rites of the church. The common and the statute law at different epochs of our history further enforced the sentence by temporal punishments of different kinds. It is unnecessary now to mention how much jurisdiction Extent of over really secular matters the ecclesiastical courts under former juriscolour of this principle obtained. Indeed, as every act of diction. a Christian man may be said to have some reference to his duty towards God, it is difficult to say why, upon this principle, jurisdiction upon every subject should not be exercised by the spiritual court. The canon law founds the authority of the pope upon this principle, aided by passages of holy writ torn from their context, and misconstrued wilfully or misunderstood grossly (a). The jurisdiction over testaments was, perhaps, the most Civil jurisdicstriking example of the application of this principle in tion. England. The office of Lord High Chancellor has long ceased to be holden by an ecclesiastic; and the important jurisdiction over questions of marriage and testamentary law, retained by the spiritual courts in England longer, I believe, than (a) Phillimore on Inter. Law, vol. ii. pt. 8, chap. iii., iv. in any other European country, was transferred to a purely lay tribunal in 1857 (b). And, practically speaking, all civil jurisdiction as to the laity, except such as relates to the fabric and ornaments of the church, the churchyard, and churchwardens, has ceased to be exercised by the Criminal juris- spiritual court. They retain, however, their criminal jurisdiction over the laity within certain limits. diction. Impugners of the law relating to the Church. Every religious body must have some means of excluding from its membership those who transgress its rules and set at nought the terms of their communion with it. It must have the power of pronouncing that such persons are, partially or entirely, for a season or for ever, placed out of its communion, that is, excommunicated. No Christian church can be lawfully compelled to admit to her rites and sacraments those who are by rightful authority pronounced unworthy of them. The spiritual court in England exercises a jurisdiction in this matter founded, as it has been said, both on common and statute law. Before the passing of any statute, criminal proceedings might be taken in the spiritual court against a layman for certain offences against religion or morality. The Canons of 1603 dealt somewhat largely with the discipline of the laity. After the decision of Lord Hardwicke in Croft v. Middleton (c), it may perhaps be doubted whether all these canons could be enforced; though those which are declaratory of law received in this country, as well as those fortified by statute, are certainly in force, more especially with respect to churchwardens and other ecclesiastical officers. It is unnecessay to say that where these canons are in conflict with any statute, they are clearly inoperative. The laity whom these canons affect may be classed under three heads. I. Impugners of the law relating to the church. III. Offenders generally against religion, morality, and I. With respect to the first category, the Canons are as follows: 2. "Impugners of the King's Supremacy censured. "Whosoever shall hereafter affirm, that the king's majesty hath not the same authority in causes ecclesiastical, (b) By 20 & 21 Vict. c. 77, as to testamentary cases; and by 20 & 21 Vict. c. 85, as to matrimonial cases. (c) 2 Atk. 650; Strh. 1056. (d) These canons, of course, also affect the clergy guilty of the offences condemned by them. that the godly kings had amongst the Jews and Christian emperors of the primitive church; or impeach in any part his regal supremacy in the said causes restored to the crown, and by the laws of this realm therein established; let him be excommunicated ipso facto, and not restored, but only by the archbishop, after his repentance, and public revocation of those his wicked errors." 3. "The Church of England a true and Apostolical Church. "Whosoever shall hereafter affirm, that the Church of England, by law established under the king's majesty, is not a true and apostolical church, teaching and maintaining the doctrine of the apostles; let him be excommunicated ipso facto, and not restored, but only by the archbishop, after his repentance, and public revocation of this his wicked error." 4. "Impugners of the Public Worship of God, established in the Church of England, censured. "Whosoever shall hereafter affirm, that the form of God's worship in the Church of England, established by law, and contained in the Book of Common Prayer and Administration of Sacraments, is a corrupt, superstitious, or unlawful worship of God, or containeth anything in it that is repugnant to the Scriptures; let him be excommunicated ipso facto, and not restored, but by the bishop of the place, or archbishop, after his repentance, and public revocation of such his wicked errors.” 5. "Impugners of the Articles of Religion, established in the Church of England, censured. "Whosoever shall hereafter affirm, that any of the nine and thirty articles agreed upon by the archbishops and bishops of both provinces, and the whole clergy, in the convocation holden at London, in the year of our Lord God one thousand five hundred sixty-two, for avoiding diversities of opinions, and for the establishing of consent touching true religion, are in any part superstitious or erroneous, or such as he may not with a good conscience subscribe unto; let him be excommunicated ipso facto, and not restored, but only by the archbishop, after his repentance, and public revocation of such his wicked errors." 6 "Impugners of the Rites and Ceremonies, established in the Church of England, censured. "Whosoever shall hereafter affirm, that the rites and ceremonies of the Church of England by law established |