The Seal of the Confessional

1990 ◽  
Vol 2 (7) ◽  
pp. 84-109 ◽  
Author(s):  
Rupert D. H. Bursell
Keyword(s):  
Canon Law ◽  
Church Of England ◽  
Ecclesiastical Law ◽  
General Law ◽  
The Reformation ◽  
Ecclesiastical Courts ◽  
The Law ◽  
The Church ◽  
Grave Danger

The seal of the confessional was part of the canon law applied in England before the Reformation. It was also part of that law which was continued in force at the Reformation, as is confirmed by the proviso to canon 113 of the 1603 Canons. This proviso is still in force and proprio vigore binds the clergy of the Church of England. By the Act of Uniformity, 1662, the hearing of confessions was enjoined upon those clergy in certain circumstances; the law places no limit upon the frequency of their being heard. It is unsurprising that there are infrequent references to the seal of the confessional since the Reformation; such cases as there are are inconclusive. Nevertheless, although the seal of the confessional may be waived by the penitent, the refusal by an Anglican clergyman to disclose what was said within sacramental confession is based upon a duty imposed on him by the ecclesiastical law rather than upon an evidential privilege. An Anglican clergyman in breach of that duty would be in grave danger of censure by the ecclesiastical courts and such censure might well lead to his deprivation and possible deposition from Holy Orders. The ecclesiastical law is part of the general law of the land and must be applied in both the ecclesiastical and secular courts. Both courts must therefore enforce that clerical duty and uphold any refusal by an Anglican clergyman to answer questions in breach of the seal of the confessional.

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 Church of England and the Law of Divorce since 1837: Marriage Discipline, Ecclesiastical Law and the Establishment

1994 ◽  
Vol 45 (4) ◽  
pp. 625-641
Author(s):  
Bruce S. Bennett
Keyword(s):  
Canon Law ◽  
Church Of England ◽  
Essential Point ◽  
Ecclesiastical Law ◽  
The Status ◽  
Practical Reality ◽  
State Changes ◽  
The Law ◽  
The Relationship ◽  
The Church

Ever since Henry VIII, the law of marriage has occupied a special place in the relationship between the Church of England and the state. Changes made to the law since 1857 have raised far-reaching and difficult questions about the nature of this relationship, involving the status of canon law. Marriage in church has remained, perhaps even more than the other rites of passage, an essential point at which the Church of England still touches the lives of great numbers of the otherwise unchurched, and these questions have thus impinged on the practical reality of the Church's work.

The Nature and Sources of Ecclesiastical Law

2018 ◽  
Author(s):  
Mark Hill QC
Keyword(s):  
Historical Development ◽  
Church Of England ◽  
Case Law ◽  
Early Church ◽  
Soft Law ◽  
Ecclesiastical Law ◽  
The Reformation ◽  
The Law ◽  
The Church

This chapter examines the nature and sources of ecclesiastical law, or the law of the Church of England. It begins with a discussion of the purpose of the law of and for the Church of England, which is to regulate the functioning of the Church and its individual members by a combination of commands, prohibitions, and permissions. It then traces the historical development of ecclesiastical law, from the early Church through the Reformation and post-Reformation. It also considers the nature and effect of establishment of the Church as well as Acts of Parliament, measures, canons, and secondary legislation that have become sources of ecclesiastical law. Finally, it looks at other sources of ecclesiastical law including case law and precedent, quasi-legislation and soft law, jus divinum, custom, jus liturgicum and dispensation.

The Origin and Founding of the Ecclesiastical Law Society

2000 ◽  
Vol 5 (26) ◽  
pp. 316-319
Author(s):  
Quentin Edwards
Keyword(s):  
Canon Law ◽  
Church Of England ◽  
Professional Knowledge ◽  
Ecclesiastical Law ◽  
Ecclesiastical Courts ◽  
The Subject ◽  
Shaped Hole ◽  
Points Of View ◽  
The Church ◽  
Law Commission

There was an ecclesiastical law shaped hole in the Church of England from the dissolution of Doctors' Commons in 1857 until 1987 when it was filled by the formation of the Ecclesiastical Law Society. In 1947, forty years earlier, the Archbishops' Canon Law Commission had suggested how the hole might be filled. The Commission was appointed in 1939 and published its report under the title The Canon Law of the Church of England (SPCK, 1947). The Report consisted of a learned and authoritative review of the sources of English canon law and made recommendations for its reform, in particular by appending to the Report a body of suggested revised canons. Included in the Report was the following paragraph expressing the hope that a society might be formed for the study of canon law:‘The success of a new code of canons will to a great extent depend on a wider knowledge than at present exists among the clergy of the law of the Church of England, its nature, history, development, and particular characteristics; and it is hoped that the previous chapters of this Report will provide an elementary introduction to the subject. We recommend therefore that those who are responsible for the training of ordination candidates and for the post-ordination training of the clergy should be asked to consider what steps can be taken to give both ordinands and clergy a more professional knowledge of the Church's law and constitution. In giving evidence before the Ecclesiastical Courts Commission in 1883 the late Sir Lewis Dibdin pointed out that since the disappearance of Doctors' Commons in 1857 there had really been no method of teaching or preserving a knowledge of the Ecclesiastical Law. It is impossible at this stage to revive anything like Doctors' Commons, but we would suggest that a society, consisting of clergy, professional historians, and lawyers, be formed for the purpose of studying the Ecclesiastical Law and of suggesting ways in which that law either needs alteration or can be developed to meet new needs. As a rule there is far too little contact and interchange of ideas and points of view between the clergy and ecclesiastical lawyers, and such a society would give opportunities for this. Such a society would train up a number of people competent to advise and help the clergy in the particular problems of Ecclesiastical Law with which from time to time they are confronted.’

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.

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.

Ecclesiastical Law and the Law of God in Scripture

1998 ◽  
Vol 5 (22) ◽  
pp. 7-13 ◽  
Author(s):  
Anthony Bash
Keyword(s):  
Church Of England ◽  
Case Law ◽  
Substantive Content ◽  
Ecclesiastical Law ◽  
The Subject ◽  
The Law ◽  
The Church ◽  
Positivist Approach

The Ecclesiastical Law Society is rightly promoting afresh the study of ecclesiastical law. In the case of the Church of England, the sources of ecclesiastical law are three-fold: case-law, statutes (and Measures made thereunder) and the Canons of the Church of England. These are the formal sources for identifying and expounding (Anglican) ecclesiastical law. The sources qua sources may not be the subject of debate; the debate may only be as to the interpretation of the contents of the sources and whether the sources should be amended. This approach to determining the substantive content of ecclesiastical law reflects the positivist approach to law, such as Bentham, Austin and Hart have set out.

The Development of Canonical Jurisprudence in the Roman Catholic Church and the Church of England

Ecclesiology ◽  
2008 ◽  
Vol 4 (3) ◽  
pp. 308-325
Author(s):  
Gordon Arthur
Keyword(s):  
Catholic Church ◽  
Canon Law ◽  
Legal Theory ◽  
Church Of England ◽  
Common Law ◽  
Roman Catholic ◽  
Roman Catholic Church ◽  
The Reformation ◽  
The Church ◽  
Degree Of Similarity

AbstractThis paper offers a theological examination of the legal theory underlying the Canon Law of the Roman Catholic Church from the time of Gratian onwards, and of the Church of England since the Reformation, comparing the latter with parallel developments in English Common Law. Despite their very different contexts, structures and emphases, a surprising degree of similarity emerges, which may provide a basis for further discussion and convergence in the future.

The Treatment of Human Remains under the Ecclesiastical Law of England

2021 ◽  
Vol 23 (1) ◽  
pp. 3-18
Author(s):  
Ian Blaney
Keyword(s):  
Local Authority ◽  
Church Of England ◽  
Human Remains ◽  
The Past ◽  
Ecclesiastical Law ◽  
Modern Treatment ◽  
The Law ◽  
Legal Character ◽  
Burial Grounds ◽  
The Church

Human remains interred in parish churchyards or in consecrated portions of local authority cemeteries are within the faculty jurisdiction of the consistory courts of the Church of England. A faculty is required for the disturbance of human remains lying within the faculty jurisdiction. This article will examine the law surrounding consecrated burial grounds in England and the disinterment of human remains therefrom and what this demonstrates about the principles of the ecclesiastical law of England relating to their protection. If ecclesiastical law provides for the protection of human remains, what is the justification for that and how adequate is the protection? The article will compare the consistory courts’ treatment of human remains with the regulation of remains outside the faculty jurisdiction, and attempt to relate canonical principles towards human remains with the legal character of consecrated ground. It will investigate whether the modern treatment of human remains is different from the treatment of remains in the past. By these comparisons I hope to better explore what justifications exist for the approach the consistory courts have taken in regulating disturbance of human remains.

The English Canon Law Relating to Suicide Victims

2017 ◽  
Vol 19 (2) ◽  
pp. 193-211 ◽  
Author(s):  
Charlotte L Wright
Keyword(s):  
Canon Law ◽  
Church Of England ◽  
Civil Law ◽  
Roman Catholic ◽  
Current Position ◽  
Electoral Roll ◽  
Attitudes Towards Suicide ◽  
The Law ◽  
Sound Mind ◽  
The Church

Society has historically viewed suicide with hostility and fear. For centuries this hostility was reflected in the English civil law, which condemned suicide as homicide, and in the Church's position towards suicide victims, which historically considered suicide to be a mortal sin. Under the current canon law, set out in Canon B 38, it is the duty of the minister to bury all parishioners, those who die in the parish, or those entered on the electoral roll of the parish according to the rites of the Church of England, except for (among others) those who ‘being of sound mind have laid violent hands upon themselves’. This canon has come under increasing scrutiny in recent years as society's attitudes towards suicide have become more tolerant. As a result, General Synod recently voted that this canon should be amended. This article explores the development of the law relating to suicide victims in order to understand the Church's current position. It then considers the shortcomings of the current canon law and reviews the position adopted by the Roman Catholic and Methodist churches. Finally, it examines the proposals for changing Canon B 38.

Sign in / Sign up

Export Citation Format

Share Document