Sect. 1. History and Law before Henry VIII. 2. From the Time of Henry VIII. to that of Queen Victoria 3. Forms of Procedure generally and in Upper House.... ECCLESIASTICAL LAW. PART IV. DISCIPLINE OF THE CHURCHI CHAPTER I. DISCIPLINE OVER THE LAITY. the ecclesias In England the authority and power of the ecclesiastical courts Sources of the as to the laity is founded on a principle, recognized by the un- authority of written common law, and in part by the statute law, that the tical courts. ordinary ought in certain matters to administer justice over all persons 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 sentence of 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. diction. It is unnecessary now to mention how much jurisdiction over Extent of really secular matters the ecclesiastical courts under colour of this former jurisprinciple obtained. Indeed, as every act of 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 strik- Civil jurising example of the application of this principle in 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 P. (a) Phil. Intern. Law, vol. ii. pt. 8, chaps. iii., iv. VOL. II. 31 diction. Criminal jurisdiction. Canons of 1603 Impugners of the law relating to the Church. Canon 2. spiritual courts in England longer, I believe, than 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 spiritual courts. They retain, however, their criminal jurisdiction over the laity within certain limits. 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 Middleton v. Crofts (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 unnecessary 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. II. Schismatics. III. Offenders generally against religion, morality, and good order in church (d). I. With respect to the first category, the Canons of 1603 are as follows:: Can. 2. "Impugners of the King's Supremacy censured" (b) By 20 & 21 Vict. c. 77, as to (c) 2 Atk. p. 650; nom. Middleton v. Crofts, 2 Stra. p. 1056. See Reg. v. Allen, L. R., 8 Q. B. pp. 69, 75. "(e). (d) These canons, of course, also affect the clergy guilty of the offences condemned by them. (e) Vide supra, pp. 6—9. Can. 3. "The Church of England, a true and Apostolical Church. Canon 3. "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." Can. 4. "Impugners of the Public Worship of God, established in Canon 4. the Church of England, censured." [This Canon is set out, supra, p. 751.] Can. 5. "Impugners of the Articles of Religion, established in the Canon 5. 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.' Can. 6. "Impugners of the Rites and Ceremonies, established in the Canon 6. Church of England, censured. "Whosoever shall hereafter affirm, That the rites and ceremonies of the Church of England by law established are wicked, antichristian, or superstitious, or such as, being commanded by lawful authority, men, who are zealously and godly affected, may not with any good conscience approve them, use them, or, as occasion requireth, subscribe unto them; let him be excommunicated ipso facto, and not restored until he repent, and publicly revoke such his wicked errors. Can. 7. "Impugners of the Government of the Church of England Canon 7. by Archbishops, Bishops, &c., censured. "Whosoever shall hereafter affirm, That the government of the Church of England under his majesty by archbishops, bishops, deans, archdeacons, and the rest that bear office in the same, is antichristian, or repugnant to the Word of God; let him be excommunicated ipso facto, and so continue until he repent, and publicly revoke such his wicked errors.' |