The Influence of the Common Law and the Decline of the Ecclesiastical Courts of the Church of England

2003 ◽  
Author(s):  
Noel S. Cox
Keyword(s):  
Church Of England ◽  
Common Law ◽  
Ecclesiastical Courts ◽  
The Common ◽  
The Church

Sovereignty and Common Law Judicial Office in Taylor's Case (1675)

2019 ◽  
Vol 37 (2) ◽  
pp. 397-429 ◽  
Author(s):  
David Kearns
Keyword(s):  
Church Of England ◽  
Common Law ◽  
Ecclesiastical Law ◽  
Chief Justice ◽  
Spiritual Nature ◽  
The Common ◽  
English Law ◽  
The Law ◽  
The Church ◽  
Law Making

This essay argues that the 1675 conviction of John Taylor by the Court of King's Bench for slandering God reveals Chief Justice Matthew Hale implementing a model of conjoint law-making between courts, Parliament, and crown that gave pre-eminent power to the common lawyers, and none to the Church of England. In doing so, it counters the prevailing literature on Restoration English law, which has treated the law as hierarchical, with the common lawyers subordinate to the sovereign. Rather than following statute or ecclesiastical law, which emphasised the spiritual nature of crimes like Taylor's, Hale located Taylor's offence in the exclusively temporal common law jurisdiction of defamation, which existed largely outside of monarchical purview. Hale's judgment reflected his rhetoric of judicial office outside the courtroom, where he argued the judiciary worked alongside King and Parliament in making law, but were not subservient to these institutions, for common lawyers relied on sources of law beyond sovereign-made statute. The language of sovereignty as hierarchical was thus a factional attack on an independent common law, an attempt to subordinate the common lawyers to the crown that was resisted by the lawyers like Hale in his rhetoric and exercise of office, and should not ground accounts of the Restoration regime.

Banister v. Thompson and Afterwards : The Church of England and the Deceased Wife's Sister's Marriage Act

1998 ◽  
Vol 49 (4) ◽  
pp. 668-682 ◽  
Author(s):  
BRUCE S. BENNETT
Keyword(s):  
Ab Initio ◽  
Canon Law ◽  
Large Range ◽  
Church Of England ◽  
Common Law ◽  
The Reformation ◽  
Ecclesiastical Courts ◽  
The Law ◽  
Civil Courts ◽  
The Church

The medieval canon law of affinity as an impediment to marriage combined a large range of prohibited degrees with a wide power of dispensation. After the Reformation, however, English law, in line with mainstream Protestant opinion, prohibited marriages within the degrees mentioned in Leviticus, with no provision for dispensation. The prohibited degrees were set out in ‘Archbishop Parker's Table’ in the Prayer Book, beginning with the memorable declaration that ‘A man may not marry his grandmother’. In the nineteenth century, however, some of these restrictions came to be challenged. The classic case was that of marriage with a deceased wife's sister, and it was under this title that successive bills were introduced to alter the law.Until 1857 the law of marriage was administered by the ecclesiastical courts, according to the canon law. However, the civil courts modified and controlled this canon law by means of the writ of prohibition: canon law was now subordinate to common law, and where the two conflicted the civil courts would over-rule the ecclesiastical courts. Marriage with a deceased wife's sister was illegal, and, as with other impediments to marriage, a case could be brought in the ecclesiastical courts to have such a marriage declared void. A case on these grounds could only be brought during the lifetime of both spouses. Nevertheless, the marriage had theoretically been void ab initio, and even after one spouse had died the survivor could still be proceeded against for incest.

‘The Difficulties of Protestantism’: Bishop Milner, John Fletcher and Catholic Apologetic against the Church of England in the era from the First Relief Act to Emancipation, 1778–1830

1998 ◽  
Vol 24 (2) ◽  
pp. 193-236
Author(s):  
Peter B. Nockles
Keyword(s):  
Eighteenth Century ◽  
Catholic Church ◽  
Church Of England ◽  
John Fletcher ◽  
Oxford Movement ◽  
Half Century ◽  
Catholic Religion ◽  
The Subject ◽  
The Common ◽  
The Church

‘It is an old theory of ours, that there are very few of the positions assumed by the antagonists of the Catholic church, which may not be turned against each other, with far more effect than they carry against the common adversary whom they all seek to assail. A skilful use of the weapons employed against each other by various sects of Protestantism, in their internecine warfare, would supply one of the most curious, and we will venture to say, one of the most solid and convincing arguments of the truth of the Catholic religion to be found in the whole range of polemical literature’.(Dublin Review, 1855).Anti-Catholicism, represented in the era of the eve of Emancipation by a rich genre of polemical literature focusing on the supposed ‘difficulties of Romanism’, has been the subject of much recent study; notably for the eighteenth century by Colin Haydon, and for the nineteenth, by Walter Amstein, Edward Norman, D. G. Paz, Walter Ralls, F. M. Wallis and John Wolffe. In contrast, English Catholic controversial writing against the Church of England, focusing on what one Catholic writer (in a conscious reversal of the stock Anglican polemical title) called the ‘difficulties of Protestantism’, with notable exceptions such as Sheridan Gilley, Leo Gooch and Brian Carter, 5 has been comparatively neglected for the half century prior to the dawn of the Oxford Movement in 1833.

The Convocation of 1710: an Anglican attempt at counter-revolution

1971 ◽  
Vol 7 ◽  
pp. 311-319 ◽  
Author(s):  
G. V. Bennett
Keyword(s):  
Church Attendance ◽  
Church Of England ◽  
Great Majority ◽  
Critical Question ◽  
Parish Church ◽  
Parish Priest ◽  
Ecclesiastical Courts ◽  
Marked Decline ◽  
The Church ◽  
The Revolution

The Revolution of 1688 began for the clergy of the Church of England an era of grave crisis. It was not merely that the deposition of James II had posed for many of them a critical question of conscience. More serious were the effects of the Toleration Act of 1689 which quickly showed themselves in diminished attendances at church, and in a marked decline in the authority and status of the parish priest. By its literal provisions the act permitted dissenters a bare liberty to worship in their own way; but, as interpreted by successive administrations and by the great majority of the laity, it effected an ecclesiastical revolution. Although various statutes required all Englishmen to attend their parish-church each Sunday, and though the act merely permitted them to go to a meeting-house instead, it was widely held after 1689 that church-attendance was voluntary. The ecclesiastical courts continued to exercise their traditional jurisdiction in matrimonial, probate, and faculty causes, and over the clergy; but their coercive authority over the morals and religious duties of the laity became virtually impossible to enforce.

The Canon Law of the Church of England: Its Implications for Unity

1988 ◽  
Vol 1 (3) ◽  
pp. 18-23
Author(s):  
Quentin Edwards
Keyword(s):  
Canon Law ◽  
Church Of England ◽  
Common Law ◽  
Ecclesiastical Law ◽  
Legal Foundations ◽  
The Church

Among lawyers who profess to know their way about the labyrinth of the Church of England's legal foundations there is a debate whether there are two subjects or one – are ecclesiastical law and canon law the same? As some purists contend that canon law is more restricted in its scope I shall take, for convenience and perhaps accuracy, the description ecclesiastical law, which certainly comprehends, or should comprehend, canon law. The ecclesiastical law of the Church of England is derived from six sources (1) papal and domestic canon law, (2) ecclesiastical common law, (3) the relevant parts of the Corpus Juris Civilis, (4) parliamentary statutes, (5) Measures of the Church Assembly and the General Synod, (6) the Canons.

KANONICZNA OCHRONA KARNA RELIGII, JEDNOŚCI, AUTORYTETÓW KOŚCIELNYCH I WOLNOŚCI KOŚCIOŁA KATOLICKIEGO

2015 ◽  
Vol 7 (3) ◽  
pp. 65-73
Author(s):  
Florian Lempa
Keyword(s):  
Canon Law ◽  
Common Law ◽  
The Common ◽  
Social Harmfulness ◽  
Penal Sanctions ◽  
Catholic Churches ◽  
The Church

The article presents the most important values criminally protected in the Catholic Churchby CIC/1983 and CCEO/1990. They are: the religion, the unity, the church authorities and thefreedom of the Church. About their prime position in the hierarchy of goods legally protected bythe provisions of penal canon law testifies that the crimes against them are put in the first and inthe second title of CIC/1983, also the threat of severe penal sanctions. These sanctions result fromthe exceptional social harmfulness of the crimes. In the degree of ailment they are analogical inthe canon law of the Latin rite and in the common law of Eastern Catholic Churches.

The Satanic Verses and the State (II)

2020 ◽  
pp. 132-153
Author(s):  
Asha Rogers
Keyword(s):  
Church Of England ◽  
Common Law ◽  
The State ◽  
The Novel ◽  
British India ◽  
Legal Cases ◽  
Satanic Verses ◽  
The Uk ◽  
The Cold War ◽  
The Church

This second chapter on The Satanic Verses considers the collision between the novel’s anti-statist energies and Rushdie’s increasing dependency on the Thatcher government after the fatwa, an unlikely custodian of literary freedom at the end of the Cold War. It then turns to the precise ways the state offered Rushdie protection, focusing on the anachronistic stipulations in English common law restricting the crime of blasphemy to the Church of England debated in the legal cases against the novel in the UK and in Europe. The second half revisits the secular foundations of the British legal system, considering the alternative stance on free expression in diverse societies adopted in British India and Bhikhu Parekh’s communitarian alternative to the individualism of British liberalism.

Defamation

2019 ◽  
pp. 465-478
Author(s):  
John Baker
Keyword(s):  
Common Law ◽  
Ecclesiastical Courts ◽  
History Of ◽  
The Common

This chapter addresses the history of the tort of defamation. Although early slander actions are found in manorial courts, the common law at first regarded defamation as beyond its purview and as more appropriate for ecclesiastical courts. But ecclesiastical courts could not deal with accusations of temporal crime or award damages. Soon after 1500 actions on the case were brought for damages caused by injury to reputation, not only by accusations of crime but also by accusations affecting a profession or calling. After some qualms, they could also be brought for spiritual matters, such as unchastity, provided temporal damage was shown. The actions proved embarrassingly popular, and the courts devised ways of deterring plaintiffs, in particular the artificial construction of words in the mildest possible sense (in mitiori sensu). The distinction between libel and slander is explained. Finally, there are observations on libel in printed publications.

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