"The question whereon we are called to answer depends Opinion of Lord Chief Justice upon the Common Law of England, of which the Ecclesiastical Tindal. Law forms a part." This is a statement by the Lord Chief Justice Tindal in the Queen v. Millis. (f) Later on, in the same case, this judge said :-"I proceed in the last place to endeavour to show that the law by which the Spiritual Courts of this kingdom have from the earliest time been governed and regulated is not the general Canón-Law of Europe, imported as a body of law into this kingdom, and governing those courts proprio vigore, but instead thereof, an Ecclesiastical Law of which the general Canon Law is no doubt the basis, but which has been modified and altered from time to time by the ecclesiastical constitutions of our archbishops and bishops, and by the legislature of the realm, and which has been known from early times by the distinguishing title of the King's Ecclesiastical Law. . . . That the Canon Law of Europe does not, and never did, as a body of laws form part of the law of England has been long-settled and established law." (g)

And Lord Abinger expressed himself very similarly:-"The Lord Abinger. learned judges have, I think, satisfactorily derived it [i. e., the Ecclesiastical Law of England] from the constitutions of the synods and councils in England, before the authority of the pope was acknowledged in this country. I take that part only of the foreign law to be Ecclesiastical Law of England which has been adopted by parliament or the courts of this country." (b)

Nicholl.

The language used by Sir John Nicholl in Wilson v. Sir John M'Math (i) is perhaps most in point:-"The case is said to be a new one, so far as regards any express law or any judicial decision on the subject. There is no statute, no canon, no reported judgment, either expressly affirming or expressly

(ƒ) 10 Cl. & F. 534, 671.
(h) Ibid. p. 745.

(g) Ibid. p. 678.
(i) 3 Phill. 67, 78-9.

Sir H. J. Fust.

Sir Robert
Phillimore.

negativing the right. It nevertheless may exist as a part of the Common Law of the land, as a part of the lex non scripta, which is of binding authority as much in the Ecclesiastical as in the Temporal Courts. Indeed the whole Canon Law rests for its authority in this country upon received usage; it is not binding here proprio vigore. Moreover, this Court upon many points is governed, in the absence of express statute or canon, by the jus tacito et illiterato hominum consensu et moribus expressum.

"It is true that generally the existence of this jus non scriptum is ascertained by reports of adjudged cases: but it may be proved by other means; it may be proved by public notoriety, or be deducible from principles and analogy, or be shown by legislative recognitions. Published reports of the decisions of Ecclesiastical Courts (with one very recent exception) do not exist; and if they did, yet the particular right in dispute may never have been so much as doubted or questioned before."

This and other judgments to the same effect are cited with approval, and their conclusions adopted, by Sir H. J. Fust in Sandars v. Head (k) :—“ From all these cases it seems that the jurisdiction of the Ecclesiastical Court in matters ecclesiastical does not depend upon any particular canon or statute, but on the general Ecclesiastical Law, and on the universal consent by which some matters are exclusively of ecclesiastical and not of temporal cognizance."

Lastly, may be cited the language employed by the present Dean of Arches in Martin v. Mackonochie (1):-"Is there a Common Law of the church, unwritten, living by usage, though partly expressed, perhaps, by judicial decisions; but still more, to use a common expression, taken for granted by all authorities in church and state, filling up the void of positive provision () L. R. 2 Adın. & Eccl. 195, 196.

(k) 3 Curt. 565, 583.

in statute or formulary; a necessary part of an organized religious system and establishment, rendering the practical working of it possible, and, on the whole, harmonious?

"That there has been such a usage in the church at large from its earliest foundation is certain. "We know no such customs, neither we nor the churches of God,' was the language, which we learn from inspired authority, she used as her shield against the earliest assaults upon her integrity. Let the ancient customs prevail,' was the maxim fatal to the mediæval and modern pretensions of Rome, which the church enunciated in her earliest œcumenical council. The Canon Law of the western church fully recognizes customs and usages as a distinct source of ecclesiastical jurisprudence. Was the branch of this church, which the constitution and the legislature have established in this kingdom, devoid of this subsidiary aid to her discipline and government?

"There is, therefore, a common law of the church which runs by the side of the statute law, and which must assist in the construction of it."

As to the bearing of these different species of Ecclesiastical Law upon questions of public worship, it must be observed that the matters treated of in chapters iii. iv. v. vii. and viii. of this part, viz., Liturgy, Rites and Sacraments, Ceremonial, Vestments, Ornamentation-depend primarily and mainly, if not entirely, upon statutory and quasi-statutory enactments—that is, upon the first species of Ecclesiastical Law as herein divided. With regard to all these subjects the rule laid down in Westerton v. Liddell (m) applies. "In the performance of the services, rites, and ceremonies (n) ordered by the Prayer Book, the directions contained in it must be strictly

(m) Moore, Special Report, p. 187. See post, chap. v., where this rule is fully examined.

(n) "And in the adoption of ornaments," see the case cited, and Hebbert v. Purchas, L. R. 3 P. C. 66.

Other questions;

how to be determined.

Effect of Usage.

observed; no omission and no addition can be permitted." Manifestly these directions are of a statutory nature, and therefore, to the extent and in the circumstances to and in which they extend and are operative, the Ecclesiastical Common Law is excluded.

Of the remainder of the subjects which are examined in this book, as well as of the rest of the law relating to the church and clergy, much depends upon and must be determined by the law coming under the second and third heads of this chapter—that is, the National or Anglican Canon Law and the Ecclesiastical Common Law. There is, no doubt, occasionally a great difficulty (as will be shown more fully subsequently) (0) in determining whether the Statutory, the Canonical, or the Common Law is to govern points in dispute. But this question has to be determined, in the first place, by determining what is the exact nature of the matter which is debated-does it come within the rule of Westerton v. Liddell, taking that in its widest form, or not? If it does, then its decision depends upon the Ecclesiastical Laws of the first species which concern it. If it does not, then according to the facts and circumstances, the decision may or may not depend on the law of either of the three kinds. Thus in chapters vi. and ix., "Subsidiary Matters of Ceremonial and Ornamentation," respectively, the most important question is, what matters are to be deemed "subsidiary," and not, by what law is their legality to be tested?

SECTION V.-Effect of Usage.

HENEVER an ecclesiastical question falls under the A third species of Ecclesiastical Law-that is, when it is one which belongs to the Ecclesiastical Common Law, usage and custom, although they will not actually make the law, will be of great importance in illustrating and interpreting it.

(0) See chaps. vi, and ix.

the Privy

In Martin v. Mackonochie,(p) the members of the Privy Council Judgment of thus stated their view as to the value to be given to usage: Council. "Their lordships have not referred to the usage as to lights during the last three hundred years; but they are of opinion that the very general disuse of lights after the Reformation (whatever exceptional cases to the contrary might be produced), contrasted with their normal and prescribed use previously, affords a very strong contemporaneous and continuous exposition of the law upon the subject."

In the subsequent case of Hebbert v. Purchas (q), they made the following important remarks upon the same subject :—

"Their lordships attach great weight to the abundant evidence which now exists, that from the days of Elizabeth to about 1840 the practice is uniformly in accordance with this view; and is irreconcilable with either of the other views. Through the researches that have been referred to in these remarks, a clear and abundant expositio contemporanea has been supplied, which compensates for the scantiness of some other materials for a judgment.

usage can repeal

a statute.

"It is quite true that neither contrary practice nor disuse can No contrary repeal the positive enactments of a statute, but contemporaneous and continuous usage is of the greatest efficacy in law for determining the true construction of obscurely-framed documents. In the case of the Attorney-General v. the Mayor of Bristol, Lord Eldon observes: Length of time (though it must be admitted that the charity is not barred by it) is a very material consideration, when the question is, what is the effect and true construction of the instrument? Is it according to the practice and enjoyment which has obtained for more than two centuries, or has that practice and enjoyment been a breach of trust? We may ask in like manner, what is the true construction of the Act of 1662, and of the rubric which it sanctioned? Is it

(p) L. R. 2 P. C. 365, 391.

(9) L. R. 3 P. C. 605, 649, 650.