The Canon Law English Background
The Greek word Kanon meant a straight rod or bar. Metaphorically, the term came to be used to signify a list. In Christian language it was adopted to denote the list comprising the inspired books of Holy Scripture, liturgical rules and rules concerning the life and discipline of the Church. In law, the word ‘canon’ was gradually used exclusively of ecclesiastical enactments and, Justinian* (c. 483-565), distinguished civil (imperium) laws from ecclesiastical (sacerdotium) canons (AD 529). In the Middle Ages the law of the Church came to be known as ‘canon law’ as distinct from ‘civil law.’ Canon law is the body of ecclesiastical rules or laws imposed by authority in matters of faith, morals and discipline. Generally speaking, canon law today covers the rules of the Church for her own organization, government and administration.
The Sources of Anglican Ecclesiology
Anglicanism draws on a number of sources in working out its understanding of the Church. Primarily it acknowledges its dependence on Holy Scripture as containing all things necessary for salvation (Article 6 of the Thirty-Nine Articles). However, in Anglicanism scripture shows the way of salvation but, though subordinate, tradition and reason play their part in shaping the life of the Church.
Tradition stands for the central truths of Christianity, “the faith which was once for all delivered to the saints” (Jude 3). Thus Canon A5 of the Church of England states that, the doctrine of that Church “is grounded in the Holy Scriptures, and in such teachings of the ancient Fathers and Councils of the Church as are agreeable to the said Scriptures.”
Anglicanism sets out to offer a rational faith. It believes that its position as a church that is both catholic and reformed can be justified by an appeal to sound learning. Its catholicity is not enslaved to tradition nor is its reformed character in bondage to biblical literalism.
The Preface to the Declaration of Assent (Canon C15) states that, the historic formularies bear witness to the Christian truth. The historic formularies being, the Thirty-Nine Articles of Religion, The Book of Common Prayer and the Ordering of Bishops, Priests and Deacons.
No human teachers are acknowledged as definitive to Anglicanism. However, the Anglican Divines of the late sixteenth to the early eighteenth centuries – Richard Hooker to Daniel Waterland – are generally recognized as possessing unrivalled wisdom and insight. Their thought was formative of Anglicanism and they belong to the common inheritance of the Anglican Communion. They hold a unique place in the Anglican inheritance of faith, with Richard Hooker (1554-1600), as the prime architect of Anglican ecclesiology and the most effective defender (Of the Laws of Ecclesiastical Polity) of the Elizabethan Settlement of Religion.
The Chicago-Lambeth Quadrilateral is one of the doctrinal standards of Anglicanism, which, despite its not being enshrined in canon law, has a particular relevance to ecclesiology. The Lambeth Conference of 1888 (Resolution II) gave the Quadrilateral its authority for the Anglican Communion. The four articles are intended to comprise the essentials that Anglicans would insist on in any reunion of the churches. The four principles are: the sharing of common Scriptures (Old and New Testaments), Creeds (Apostles and Nicene), Sacraments (Dominical) and the Historic Episcopate.
English Canon Law
In England the Establishment is a very important factor and, as a consequence, English Canon Law places a great deal of emphasis upon it. This emphasis, however, should not obscure the even more important fact that the Church’s authority, though expressed through many human agencies, claims to be derived from Christ himself, cf. Matthew XVIII: 18; I Corinthians XI: 2-XIV: 40; Acts XV: 1-35. The fundamental task of judicial legislature is to provide a vehicle so that God’s will may perfectly be reflected in his Church’s laws.
“In the beginning God created the heaven and the earth” (Gen. I: 1). There, in the opening words of Genesis, is the root of the study of the canon law. In the study of moral theology the concern is with the whole of God’s law in so far as it is immediately relevant to man. The concern in the study of the canon law is with so much of the moral law as is enforced, directly or indirectly, by human sanctions. The basis of the canon law is theological. The canonist, therefore, can never be simply a lawyer; he must always be in some measure a theologian and also an historian.
The canonist’s study begins with Genesis I: 1; and the whole of Scripture, is directly or indirectly concerned with it. This verse is the first recorded piece of divine legislation. Indeed, the language of legislation is employed throughout the creation story, cf. Genesis chapters I & II. So throughout the OT God’s law is revealed, often implicitly, sometimes explicitly, as in the giving of the Ten Commandments to Moses, cf. Exodus XX: 1-17; and in the NT our Lord in his summary gives the twofold substance of that law, cf. Matthew XXII: 34-40; Mark XII: 28-34, upon which hang all the law and the prophets.
The legislative and judicial authority of the Church has two important characteristics. The first is that it does not stand alone; it is the inheritor of the whole law of God in so far as that is at any moment relevant. The second is that, like all subordinate legislative authority, it has validity only within the framework of its principal and parent, the divine law. Wide as is the scope of the Church’s legislative authority, it is, nevertheless, a limited authority. The subjects covered by this body of law were very varied and included matters of theology, liturgics, discipline, in the widest sense, and the ordering of all aspects of Church life.
The Reformation had as its immediate object and effect, the termination of the Papal authority within this realm and the declaration that, the King was the only supreme head on earth of the Church of England (Act of Supremacy of 1534). Henceforth changes in the law of the Church of England could come only by or with the express or implied consent of the secular power. The next 150 years was to see the shifting of power from the King in person to the King in Parliament.
Though no new canon law would come from Rome, the whole body of the canon law, which had already accumulated and been accepted in this country was allowed to remain in force, in so far as it was not inconsistent with the Henrician Settlement, when the law of the Church of England became subordinate to royal authority by the Act of the Submission of the Clergy in 1533 (25 Hen. VIII, c. 19). The canonist’s task was now twofold. Firstly, to decide, as need arose, how far the pre-Reformation law had been abrogated and, secondly, to pay direct regard to Acts of Parliament which, henceforth, were to be their undisputed source of all changes in the law.
The minutiae of ecclesiastical legislation were left, however, to the ancient Convocations of Canterbury and York, each consisting of an Upper House of Bishops and a Lower House of Clergy. Since the Reformation these two bodies have been recognized as having power to make canons, which, however, like Acts of Parliament, require the Royal assent before acquiring any validity. Even so, their effect is limited. They are of no effect whatever if contrary to the general law of the land, whether statutory or common law; and they are of themselves binding on no one except the clergy, churchwardens and chancellors.
In the reign of James I, that body of law known as the Canons of 1603 (or 1604), was passed by the Convocations of both Provinces and received the Royal assent. These 141 canons were based on a number of sources, some were a reaffirmation of medieval prescriptions, others depended on Matthew Parker’s ‘Book of Advertisements’ (1556), and the Thirty-Nine Articles, and form part of the Reformation settlement. As such, they are a nicely balanced and at times precarious structure between, on the one hand, unreformed Rome and on the other, the excesses of the Puritans. Catholic truths had to be preserved and restated in terms which were acceptable to a Church at once Catholic and Reformed. The catholicity of the Church is presupposed (Canon A1).
The Canons of 1603 remained substantially unchanged until 1969. However, among the changes that were made, of great importance is the Act of Uniformity, 1662 (14 Car. II, c. 4), which has as its schedule the Book of Common Prayer, wherein is enshrined much of the theology of the Church of England, a theology that gives expression to the teaching of a Church, which claims to be at once both the Church of the English and a part of the Catholic Church of Christ. The Prayer Book is the work of churchmen, its legal authority is derived from Parliament and its embodiment in the Act of Uniformity is the nation’s acceptance of it.
In 1902 a Representative Church Council consisting of the two Convocations and the two Houses of Laity was formed. This Council was then superseded by the Church Assembly, which was established by the ‘Enabling Act’ (Church of England Assembly [Powers] Act, 1919 [9 & 10 Geo. V, c. 76]), which bestowed upon it the right to pass Measures having the full force of Acts of Parliament. These Measures require the Royal assent, which cannot be given until both Houses of Parliament have agreed to their submission. Measures of the Church Assembly, which receive the Royal assent, became part of the law of the land.
A ‘Canon Law Commission’ was appointed in 1939, to consider the status of canon law in England and, if it deemed it expedient, to prepare a revised body of canons for submission to Convocation. From 1946, Geoffrey Fisher, Archbishop of Canterbury, devoted considerable time to the revision of the canon law. The new Code was promulged in two parts, three sections in 1964 and four in 1969. It covers much the same areas of Church life as earlier canons and, like them, presupposes both the Common and Statute Law and the pre-Reformation Canon Law of the WesternChurch, except where the last has been affected by contrary statute or custom in England. All that now remains of the 1603 Book of Canons is the un-repealed proviso to Canon 113 dealing with the seal of confession, on which it was feared that new legislation might encounter difficulties with the secular authorities. The 1969 Canons superseded the earlier collection in almost every other respect. The new Code (see: appendix) was published by S.P.C.K. under the title The Canons of the Church of England (1969).
In 1970 the General Synod superseded the Church Assembly and the synodical system is the one that still exists today. Under this system the Convocations remain in existence and meet on occasion to consider matters of specific concern to the clergy. Most business is conducted by General Synod meeting as a single body consisting of a House of Bishops made up of the combined Upper Houses of the Convocations, a House of Clergy made up of the combined Lower Houses of the Convocations and a House of Laity drawn from both Provinces.
The Constitution: (1) Establishment
Since ‘In law the Church of England … is that branch of the Holy Catholic and Apostolic Church which was founded in England when the English were gradually converted to Christianity between the years 597 and 686’ (Halsbury, Laws of England, 3rd ed., Vol. 13, p. 33), some attempt must be made to understand at least the implications of the Establishment. Before the Reformation, Church and State existed side by side, each recognizing the authority of the other within its own sphere. The King’s courts administered the King’s law and the Church’s courts administered the Church’s law. At the Reformation the authority of both sets of courts stemmed from the King. The law which each administered was to be the law of the land and the ultimate authority for altering the law, whether secular or ecclesiastical, was to be the King in Parliament and the procedure for altering it was by Act of Parliament. It is this identification of Church and State which is the essential mark of Establishment.
The Constitution: (2) Ecclesiastical
The laos or people of God form that part of the Church which is ‘militant here in earth.’ The laity comprise, the larger part and the smaller part consists of those who have received ordination into the threefold sacred ministry. ‘It is evident unto all men diligently reading Holy Scripture and ancient Authors, that from the Apostles’ time there have been these Orders of Ministers in Christ’s Church; Bishops, Priests and Deacons’ (Preface to the Ordinal in the Book of Common Prayer). This is a tenet of the Catholic Church, both Western and Eastern and, as such, is shared by that part of the Catholic Church established in England. The officials of the Church are to be found among those who have been ordained and those who have not and, indeed, having regard to the nature of the Establishment, those who are not even Christians may have some say in the affairs of the Church, e.g., in the two Houses of Parliament.
Other Religious Bodies
The Church of England is that branch of the Catholic Church established in England. As such she claims to be the Catholic Church in this land and, if pressed, she will make this claim to the exclusion of the claims of any other religious body. While the Church and the law alike acknowledge the right of the individual to pursue the beliefs and practices which his conscience dictates, the Church of England claims that within this realm hers is the one authentic jurisdiction. What the Church of England claims for herself in England she accords to others elsewhere (Thirty-Nine Articles, Article XXXIV).
In this country, although the Church of England is the Established Church, there is virtually complete religious freedom and persons are free to practise their own religion, Christian or non-Christian, though the Places of Religious Worship Act of 1812 still remains upon the Statute-Book (52 Geo. III, c. 155), or to refrain from practising any religion, provided that their practices do not incidentally break the law in some other respect. The Toleration Act of 1689 (I Will. & Mar., c. 18) remains the basis of the constitutional position of the Church of England, a constitutional position in which the Church of England has remained the established Church with a range of particular legal privileges and responsibilities but with ever-increasing religious and civil rights being granted to other Christians, those of other faiths and those professing no faith at all.
Benefits are provided for clergy who are not members of the Established Church. They are exempted from jury service by the Juries Act, 1870 (33 & 34 Vict., c. 77) and are specially protected while conducting religious services by the Offences against the Person Act, 1861 (24 & 25 Vict., c. 100). The places of worship of any religious body may be registered under the Places of Worship Registration Act, 1855 (18 & 19 Vict., c. 81) and, as a result, they obtain relief in respect of rates under the Liberty of Religious Worship Act, 1855 (18 & 19 Vict., c. 86) and may be licensed for marriages under the Marriage Act, 1949 (12, 13, & 14 Geo. VI, c. 76). The Education Act, 1944 (7 & 8 Geo. VI, c. 31), respects the religious scruples of parents.
In law the basic position of religious bodies (Free Churches) outside the Establishment is the same as that of any other body which exists for any other purpose. The basis is contractual and depends upon the agreement of the members. The only exception to this general principle arises when Parliament choose to intervene by legislation. Once passed, such legislation is binding until repealed and to that extent it limits freedom of action. No person and no body can escape the secular power, be that power prince or Parliament or anything else which is sovereign. The secular power, if it wishes, can in law control non-established bodies and, if it wishes, it can leave established bodies to their own devices. What does matter is the extent to which the secular power wishes to interfere. Whatever the Church and wherever the State, the inescapable fact remains that, in the ultimate resort the Sovereign Power is and must always be over all persons and in all causes, as well ecclesiastical as temporal, throughout its dominions supreme.
*The 6th Novello to the Code: Corpus Juris Civilis. See also: Hooker’s Latin text of Law 34, de Episcopali Auctoritate.
The Canons of the Church of England
Canons Ecclesiastical promulged by the Convocations of Canterbury and York in 1964 and 1969
Section A: The Church of England (Canons A1 – A8)
Section B: Divine Service and the Administration of the Sacraments (Canons B1 – B42)
Section C: Ministers, their Ordination, Function and Charge (Canons C1 – C28)
Section D: The Order of Deaconesses (Canons D1 – D3)
Section E: The Lay Officers of the Church of England (Canons E1 – E7)
Section F: Things Appertaining to Churches (Canons F1 – F18)
Section G: The Ecclesiastical Courts (Canons G1 – G6)
Proviso to Canon 113 of the Code of 1603
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