The history of church laws in England from 602. to 1850.

Preface

This volume is intended to supply general readers with such authentic information as formerly was locked up within old Saxon chronicles, Latin canons, or Norman-French statutes; and with which antiquarians, lawyers, and civilians were, at one time, the only persons acquainted. But, happily, the labours of distinguished literary men have, at various periods, brought to greater light the facts connected with our early Church History. Still, the form in which this knowledge has been conveyed, excludes, to a very great extent, the masses of the people from making themselves acquainted with the subject. They have been bound to obey laws, the merits of which they were unable to test.

The author of the following work feels happy to acknowledge his obligations to the distinguished men who have made the intricate subject of ecclesiastical legislation their study, and to whose labours, in this department of literature, our country has been laid under a lasting debt of gratitude. Among these are Spelman, Lynwood, Somner, Gibson, Burn, and other civilians or divines. The most valuable work, however, is Johnson's " Collection of Ecclesiastical Laws." This includes the researches of nearly every previous writer, and is rendered increasingly useful by having consolidated information, which before had been hidden under the now obsolete Saxon language. Yet it is to such records we must refer, ere we can obtain satisfactory evidence of the first foundation of the present English church.

iv

PREFACE.

To this work of Johnson (who was vicar of Cranbrook), published in 1720, repeated reference will be made. In the absence of any other authority being quoted, the reader is requested to consider this laborious antiquarian as supplying those facts which are drawn from the canons.

But as canonical laws have not been the only branch of legislation called into action upon church questions, nor alone supply the whole history of many given points, there have been added the statutes. These, in many instances, furnish the most remarkable illustrations of the disposition both of the civil and spiritual power. By blending the two (which are presented in a continuous form), the reader will, at a glance, obtain a clear and full view of the mighty influences that constantly have been exerted, as well for mischief as for benefit.

In respect of the statutes quoted, it may be sufficient to state, that Keble's compilation, and that published by the Commissioners of Public Records, have been exclusively used.

It only remains for the author to express his sincere and grateful acknowledgments to the authorities of several public institutions, and to private friends, who have kindly afforded him every facility in the prosecution of his labours. Among the former are included the Trustees of the British Museum, and the Council of the Law Incorporated Society ; and among the latter he begs particularly to express his thanks to W. T. Alchin, Esq., the learned librarian of the corporation of the city of London, for many opportunities afforded of free access to, and assistance in, consulting works in the Guildhall Library.

KlNGSLAND,

27 tb February, 1851.

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HISTORY

OF

CHURCH LAWS.

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Laws delineate national character. They serve not introduction , only to portray the features, but in many instances help to perpetuate the dispositions of those from whom they derived their birth. This embodiment of the moral and intellectual condition of any people is most expressively marked in laAvs which relate to religion ; other codes are a miniature profile — these, a fulllength portrait. In the one we have an outline form of government ; in the other, its hidden motives and living power. Ecclesiastical jurisprudence must, therefore, always sustain a unique and emphatic distinction. This fact is, in itself, sufficient to induce a desire to become acquainted with the system, even though it were not associated with another fact of singular practical moment. It is this : — the greater portion of mankind take their prevailing notions of religion from existing

B

Introduction

introduction, laws. These, rather than moral evidence, become the media through which they obtain their knowledge, estimate their obligations, and govern their decisions. ~No matter how absurd, presumptuous, or savage soever these laws may be, there are always some who will justify their enactment, and aid in their execution.

In reference to this compilation of church laws, it may, perhaps, be desirable at once to state that all legal technicalities are avoided. While the facts it records are drawn from sources which neither lawyers nor statesmen will attempt to upturn, or impugn ; the principles it illustrates are those only which have been enunciated in the several enactments of which it is the register. The work is designed to exhibit, from national authentic records, the phases through which Christianity has passed in this country; and to supply the general reader with indisputable data, from which he may deduce such conclusions as shall appear to his own mind to harmonise with reason and revelation.

It is also to be observed, that all these facts and principles are given in the words of the laws themselves. The observations made, are intended to act as connecting links to the several subjects, rather than as the expression of opinion upon church polity.

Chapter I

SKETCH OF THE PROGRESS OF CHRISTIANITY IN BRITAIN UNTIL THE ARRIVAL OF AUGUSTINE, a.d. 597.

The first planters of Christianity unknown.

The existence of British Churches prior to the arrival of Augustine. The state of these churches under the Saxons. Arrival of Augustine.

Resistance of the British bishops to his mission. Claim of Augustine to work miracles.

Eventual submission of Bi'itish Churches to the Bishop of Rome.

THE FIRST PLANTERS OF CHRISTIANITY IN BRITAIN, AND STATE OF THE EARLY CHURCHES.

By whom Christianity was first proclaimed in these isles, is matter of no great importance. It is doubtful whether this honour belongs to St. Paul. The earlyambassadors of peace were content that their names should merge into their labours. It is, however, certain that during the apostolic age Britain witnessed their zeal, discouragements, and success.

The history of the early rise and progress of the Christian religion in Britain is left in comparative obscurity. Historians were at that time more rare than warriors. Literature then suffered an eclipse,

b 2 chap. t. and records were supplanted by traditions. Sufficient evidence has, however, attested that in Britain Christianity reckoned not a few triumphs. That it had become extensively known and appreciated seems incontrovertible, from what Bede states as a fact, viz., that Lucius, the British monarch, in a.d. 156, requested the bishop of Rome to send him over additional missionaries.

That Christian churches greatly increased is evident from the recorded testimony of historians, who state, that when, in a.d. 301, the violent persecution, under the Roman emperors, Dioclesian and his colleague Maximilian, broke out, Britain supplied a large quota of martyrs. Among these was Alban, who had at one time been a pagan idolater. He, however, gave shelter in his house to a Christian minister, who, fleeing from the persecution that then raged in Wales, sought an asylum in the eastern part of this island. Through the instructions and example of this devoted man, Alban himself became a Christian, and sealed his faith with his blood at Verulam, now called, in honour to his memory, St. Alban's. Chester, also, then had numerous Christian disciples. In Exeter, and many other places, numbers of both sexes suffered Christian martyrdom. r

Though this persecution lasted ten years, and was designed wholly to extirpate Christianity from the Roman empire, there were yet, in a.d. 314, such a number of Christian churches left, as to allow five British bishops to appear at the council held that

CHURCH LAWS.

year at Aries, in Gaul. So again, in a.d. 347, CIIAP representatives of British churches were present at the council held this year at Sardica. They again met with other ecclesiastics from various parts, at the council convened at Arminium, in Italy, a.d. 359, where, says Collier, (T. 85,) "four hundred western " bishops met, all of whom were provided with conve- " niences in diet and lodging at the emperor's charge. " But the bishops of Gaul andJ3r4tain did not think it " proper to be thus supported byjhe^Exchequer, and ^ " chose rather to live upon their own pockets."

STATE OF THE CHURCHES UNDER THE SAXONS.

The next two centuries witnessed the inroads of the Saxons, who, in a fatal moment, had been invited into Britain by Vortigern, in a.d. 449. Instead of proving auxiliaries, they turned enemies. Fierce wars raged between them and the Britons for 130 years. During these commotions, the state of the British churches became deplorable in the extreme. They were nearly overwhelmed and extinguished by the Anglo-Saxons. These new settlers adhered to the worship of pagan gods, and put an immense number of Christians to cruel deaths.

At length, in a.d. 587, they seized the sovereignty of the island, demolished Christian churches, and set up their own heathenism. Wales, Cornwall, and Cumberland were the only places where Christianity did not lose ground. Had the refugees in those parts

CHAP - L been left to struggle alone and single-handed against idolatry and persecution, they would eventually have recovered the power of Christian truth and liberty. But Rome saw and professed to pity.

Ten years after the Saxon sovereignty had been planted in Britain, Rome sent Augustine with forty Benedictine monks, professedly to convert Saxon pagans. This conversion had been long a favourite idea with Gregory before he became Pope. Twenty-five years before the attempt was actually made, he had himself, it is said, contemplated coming hither upon this errand. The inducement, according to some historians, arose from his observing, in Rome, a number of young English slaves for sale. The oft-repeated incident respecting the "Angli — sed Angilli," bears, however, so much the appearance of an after-adjustment of phrases, as to induce some historians to attach little or no credence to the story. Gregory would probably never have planned, nor Augustine travelled, had conversion been the only object at which they aimed. Under his cowl the monk secreted a mitre. Subsequent events proved the fact.

ARRIVAL OF AUGUSTINE.

Augustine landed in the Isle of Thanet, a.d. 597. With solemn pomp and banners flying, he and the other monks directed their way to Ethelbert, then king of Kent. The wife of this monarch was herself a Christian, and had successfully prepared the way for

CHURCH LAWS.

the arrival and reception of the Romish emissaries, chap. i. By the king they were favourably received, permitted to take up their permanent abode in Canterbury, and publicly to establish their own religious rites. One year after his arrival, Augustine baptised the pagan monarch. Saxon temples were speedily converted into Christian churches. Christianity, which the Romans had attempted to hunt down, and the Anglo-Saxons had despised, now became the patronised religion. Elated with success, Augustine hurried to Aries in Gaul, where he was consecrated " Archbishop of the English nation," though, as yet, there was not a single ^ bishop^ under his jurisdiction. It is evident, therefore, that he sought territorial as well as spiritual power. Why he obtained the designation immediately appears.

RESISTANCE OF THE BRITISH BISHOPS.

There were already very many English bishops in the country ; but they recognised neither the monk nor his mission. The first effort of Augustine was to induce them to acknowledge both. For this purpose, he sought ^ and obtained a conference with them. Seven of them met him once and again. At the first meeting, he endeavoured to bring them into conformity or unity with the Catholic church. To test the truth of the doctrines and practices of that church, "Let," said Augustine, " some infirm person be brought ; and let " the faith and practice of those by whose prayers he "shall be healed, be looked upon as acceptable to God, chap. i. " and be adopted by all." His test succeeded. A blind man was brought : over him Augustine prayed ; and the blind, it is said, received sight.

Still the Britons delayed, and disbelieved. " We " cannot change our customs," said they, " until we " have obtained the consent and leave of the people." (Bede, 69.) A second synod was summoned. Augustine then said, " You act in many particulars contrary " to our custom, and yet, if you will comply with me in " these three points, viz. — Keep Easter at the due " time ; administer baptism, by which we are born " again to God, according to the custom of the Holy " Roman Apostolic Church ; and, jointly with us, " preach the Word of God, — we will readily tolerate all " the other things you do contrary to our customs."

This was their memorable reply:— "The British "churches owe the deference of brotherly kindness and " charity to the church of God, to the Pope of Rome, and " to all Christians ; but other obedience than this we do s-sf "not know to be due to him whom you call Pope." " And as to our parts, we are under the jurisdiction of "the Bishop of Caerleon." # " To whom," says Bede (71), " the man of God, Augustine, in a threatening tone, " said, that in case they would not join in unity with " their brethren, they would be warred upon by their " enemies, and should at their hands undergo the ven- " geance of death." This was the first specimen of a coerced external unity.

CHURCH LAWS.

EVENTUAL SUBMISSION OF THE CHURCHES TO THE CHAP. I. BISHOP OF ROME.

From this period commenced the conflict between the bishop of Rome and the English churches. He, to be supreme ; they, to retain their self-government. The struggle continued until the year a.d. 669, when a.d. 669. Theodore, Augustine's sixth successor, came, under another direct appointment from Rome. He was sixtysix years of age when appointed, by the Pope, archbishop of Canterbury, and was considered a man of literature and of mental energy. He arrived, 27th May, 669. Soon after, he made a visitation of his province, wherever the tribes of the Angles inhabited. By them he was well received, so that under him, eventually, the English churches were brought to submit to Rome. He was the first archbishop whom they all obeyed as their head, and the delegate of the Pope.

To return to Augustine. The position which at his first entrance he was able to assume, emphatically favoured his mission. He went direct to Ethelbert, wmose wife, Bertha, had upon her marriage stipulated the privilege of maintaining, in her own circle, the various ordinances of Christianity. She was surrounded with a bishop and domestic priests, whom she had brought with her from Gaul. These had proved themselves excellent pioneers ; they now became invaluable as Augustine's auxiliaries. Rome kept up a confidential intercourse with the ardent missionaries. All her experience was placed at their service. Ethelbert chap. i. having become the convert, soon avowed himself the patron of Augustine. Instead of being surprised at his success, our wonder would have increased had it not been as great — especially as human aid was not the only agency he employed. He pretended to work miracles. True, he could not at first induce men to believe in his miraculous powers ; but that the pretension was eventually recognised, appears from what Bede states was the inscription upon Augustine's tomb. This is the epitaph :- —

" Here rests the Lord Augustine, first Archbishop of Canterbury, who " being formerly sent hither by the blessed Gregory, Bishop of the city of " Rome, and by God's assistance supported with miracles, reduced " King Ethelbert and his nation from the worship of idols to the faith " of Christ; and having ended the days of his office in peace, died the " 26th day of May, in the reign of the same king."

Augustine died a.d. 604. Had this missionary from Rome confined his efforts to the propagation of Christianity among Saxon pagans, we should have restricted our examination of his merits to the results of his mission. But he came as an importer of laws as well as the herald of peace. These laws have spread themselves over every succeeding age, become inwrought into nearly all our national institutions, and by their persecuting character created the benumbing influence against which the religion of the Son of God has, more or less, ever since had to contend.

CHURCH LAWS.

Chapter II. The Various Kinds Of Church Laws

Augustine a legislator as well as a missionary.

§ 1. The introduction of Roman Law into Britain.

Its character, in respect of religion, borrowed from pagan laws.

Its influence upon civil rights, as now administered in Ecclesiastical Courts and Chancery. § 2. Establishment of Canon Law.

Source of its authority from Popes, councils, and synods.

Condemnation of, by statute.

Still in force. § 3. Statute and Common Law.

§ 4. Theological compilations having legal sanctions, viz., the Thirty-nine Articles and Book of Common Prayer.

Augustine was no sooner established as an eccle- chap. ii. siastic than he undertook the office of legislator. Speaking of Ethelbert, Bede, the Saxon historian, lib. ii. cap. v., tells us, "Among other benefits which " he conferred upon the nation, he also, by advice of " wise persons (the Witena Gemot, or Supreme Legis- " lative Assembly), introduced judicial decrees, after " the Roman model. Among these, he in the first " place set down what satisfaction should be given by " those who should steal any thing belonging to the k church, the bishop, or the clergy, resolving to give " protection to those whose doctrine he had embraced."

chap. ii. " The Roman Model," in other words, the Roman or Sect. 1

civil law. This was divided into several departments ; one was styled the "jus sacrum" or pontifical law. It treated of religion, the rights of marriage, oaths, sepulture, the times of pleading in courts of justice, and many other matters deemed sacred. One principle ran through the whole of this code — the admixture of monarchical with ecclesiastical authority. It had been incorporated into all the religious institutions of pagan Rome.

The city had not been founded forty years before Numa Pompilius became the second monarch. He, previous to his election, had been a philosopher, dwelling amid woods and fountains, deemed at that period sacred. His first regal act was to regulate the priesthood. He divided it into eight classes, assigning to the highest class the designation of pontijices. These he constituted into a college, whose jurisdiction extended to all religious or sacred things. The emperors were, therefore, styled " Pontifex Maximus," and were the centre of all sacred as well as secular authority. The designation of Pontifex they might and did occasionally delegate to subjects, by whom the office was eagerly sought, as it was the highest office in the state; just as with us, in the present day, the Archbishop of Canterbury is the chief permanent delegate of royal power.

Augustus was the first Roman emperor who assumed

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J 3 the title of Pontifex Maximus. He did this in the chap. h.

Sect. I.

735th year of Rome, thirteen years before the Chri

Roman law.

tian era. It was retained by his successors for nearly 400~years. But Gratian, thinking it inconsistent for a Christian monarch to bear the title of a pagan high priest, by a decree refused the title, 375 years after Christ. But though the title was dropped by the emperor, the 'principle remained in the law.

It would have been unwise in Augustine to establish the whole Roman code at once. It therefore was gradually adopted. This model has even, at various times, supplied our own English parliament with the motive and the form of different statutes. It still pervades many of our laws in relation to property and civil rights ; it is the basis of all our ecclesiastical laws ; and it mainly regulates to this day the practice of the spiritual courts; and in many respects governs the chancery courts as well.

The study of this code has invariably been an object of prime solicitude with the clergy. " They prepos- " sessed," say the Commissioners on Real Property, " Richard II. in its favour ; and under his auspices, or <c at least during his reign, they converted the chancery " office into a court, modelled it according to the civil " law, forged for it a process, and gave its ecclesiastical "judge the civil code to administer with discretion, " under the name of equity. " #

* Fourth Report of Commissioners on Real Property Appendix, 475.

Section II. — Canon Law

The second branch of ecclesiastical jurisprudence is the canon law. This sprung out of the ruins of the Roman empire. The bishops of Rome had been held in profound esteem as residents in, and in a great measure presiding over the government of the imperial city. They had set up their own laws, first in juxtaposition, and afterwards in opposition, to those of the Roman emperors. Under the influence and authority of successive Popes, they were at length consolidated by a monk called Gratian, about a.d. 1150, and everywhere throughout Europe obtained power. To these have been added laws adopted in general councils of the church, together with many others made in provincial and diocesan councils or synods, held in this country under the authority and sanction of the Pope's legates,* archbishops, and bishops. f

One principle pervades canon law ; it is the employment of the civil power in enforcing spiritual obligations. So early as a.d. 958, we discover this anoma-

* Legates are of three kinds : — Legati a latere — cardinals sent by the Pope, from his own immediate presence ; Legati nati — legates born ; such were the ancient archbishops of Canterbury, to whose archbishopric legative power was annexed ; and Legati dati — such as bad authority from the Pope for a distinct purpose, mentioned in some special commission.

f " The canon law hath the same lineaments and features as the civil " law, being framed to render the Pope in the church wbat the Emperor "was in the state. And it must be owned they are both perhaps more " for the ease of tbe governors ; but not so convenient for the governed." — Burn.

lous and hurtful principle. In the reign of Edgar, c g£*- g IL we have this canon, or provision as it was called, canon law.

which King Edgar " made to the praise of God." It runs thus : — " Let the bishop be at the county court and " also the earldoman, and there let each of them put in " use both God's law and the world's law." Thus, the church was to bolster up the magistrate by ecclesiastical censures ; and the magistrate back the bishop by civil punishments.

This combined rule of government the church was the first openly to avow. In King Edward the Con- a.d. io64. fessor's time, we find the principle of consolidation enunciated and enforced. " If any one out of arrogance " will not be brought to satisfaction in the bishop's court, " let the bishop notify him to the king, and let the king " constrain the malefactor to make satisfaction where the " forfeiture is due ; that is, first to the bishop, then to " himself ; so there shall be two swords, and one sword shall ' c help the other." This was the language of the church.* The response from the state was as explicit. It silently acted upon the principle for nearly 500 years, without an express legal recognition. This eventually was done in the time of Henry VIII. Much as he disliked the Pope, he had no objection to adopt some of the pontifical laws. The 24th Henry VIII., cap. 12, declared, that in respect " of the spiritualty and the temporalty their "authorities and jurisdictions do conjoin together in the " due administration of justice, the one to help the other."

* Johnson's Ecclesiastical Laws,

C ?ett P *2 IL tnese °^ canons are binding upon the laity as

Canon law. well as the clergy appears from an unrepealed statute.

The 25th Henry VIII., cap. 21, says, "that such " canons, constitutions, and ordinances being already "made, shall still be used and executed." It goes still farther, and recognises the canon law "as having by " the sufferance of the English monarchs obtained among " the people, who have bound themselves by long use and " custom to the observance of the same." This is a recognition of the authority of foreign canon law in this nation, on the foot of usage and custom, to which this clause adds a parliamentary sanction to our own canons.— Gibson, ii. 985.

But though the act recognised, it at the same time emphatically condemned them.* It was clearly the intention of the legislature to banish both the pontiff and his code of laws. We shall presently see that the act gave a pledge to this effect. Commissioners were appointed "to search into and determine which of "these canons shall be abolished, made void, and of " none effect." It went on to say, " till such time" as this was done, " all the canons and constitutions not " contrary or repugnant to the laws, statutes, and " customs of this realm, nor to the damage or hurt of " the king's prerogative royal, shall remain in full , " force, and be used and executed as they were afore " the making of this act."

* They are described as " much prejudicial to the king's prerogative " royal, repugnant to the laws and statutes of this realm, and also over- " much onerous to the king's highness and his subjects."

These commissioners went to work, but Henry chap n.

* beet. 2.

having died during the examination, the commis- Canon law. sion ceased. Edward VI. renewed the commission, under which the then commissioners completed a new code, bearing the designation of Reformatio Leginn Ecclesiasticarum ; but before this book was confirmed by parliament the young monarch also died, The reason why the abolition was not immediate, is stated to have been from " the shortness of time of the session " of this present parliament — so that the laws could not " be viewed, examined, and determined." The rules by which the commissioners were to base their decisions were stated to be " the laws of God and the laws " of this realm," implying that some of the canons were contrary to both.

It might have been supposed that a branch of jurisprudence so emphatically and repeatedly condemned, would before this time have been "made void and of " no value." Protestantism has not, however, perfected the work chalked out by a Catholic monarch, in Catholic times, and by a Catholic parliament. It is true, an attempt was made by Archbishop Parker, in the time of Elizabeth, to complete the onerous task. The statute of Henry VIII., however, remains unrepealed and unsatisfied. So that the legatine laws, enacted by the Pope's legates — Otho, in 1237, and Othobon, in 1268 — all of which were reported to the respective Popes, whose ratification finally gave to them living power — are to this day received as part of our own domestic constitutions, and parcel of the

c

°SctY L common ^ aw °f tne church. As such they may be canon law. enforced upon all classes, simply because all classes have been alike careless as to their abolition.

The unredeemed pledge recorded in the above act of Henry has for three centuries slumbered on the pages of the Statute Book; and there it will slumber on, " till such time " as the people, in a voice " louder " than the sound of many waters," demand that, at once, totally, and for ever, these laws be abolished. Why has not an indignant people thrown these remnants of Home spiritual amid the scattered ruins of Rome imperial ? A learned canonist shall give the reply : — " One reason" (says Burn on "Supremacy") "why a " reformation of the ecclesiastical laws was never " effected, seemeth to have been, because it conduced " more to the advancement of the supremacy to retain " the church in an unsettled state, and consequently " more dependent on the sovereign will of the prince."

There are, however, certain exceptions as to canon laws. Those made in the year 1640 were, by the 13th Charles II., cap. 12, sec. 5, refused confirmation, as also " all other ecclesiastical laws or canons not u confirmed, allowed, or enacted by parliament, or by " the established laws of the land as they stood in the " year 1639." A still more remarkable refusal to confirm a foreign canon took place in 1235, when the bishops asked the lords to allow a constitution of Pope Alexander III., which legitimated children born before the marriage of their parents. But the lords " refused to " change the laws of the realm." — 21 Henry III., c. 9.

Section III. Statute And Common Law

The third branch of ecclesiastical jurisprudence is chap. n.

Sect. 3.

the common law and the statutes of the imperial parliament.

These are the supreme authority. They ride over every other source of judicial power, be it canon law or pontifical authority. The state has not, however, yet asserted the supremacy of its executive power. It still tolerates independent and separate sources of law. Thus, it not only admits the pontifical or Roman model, and the canon law, in matters both spiritual and secular, but it permits archbishops and bishops to appoint their own judges, advocates, and proctors ; to require from them an oath of obedience to their lawful commands ; and to bold over them, in terrorcm, the power of removal at pleasure. This latter is a power which does not now pertain to the crown, without the decision of both houses of parliament. So long as these ecclesiastical prerogatives remain, the mitre is placed upon a separate and higher pedestal than the crown.