Pre-Reformation Roman Canon Law in Post-Reformation English Ecclesiastical Law

Abstract

Roman canon law did not cease to have an effect within the Church of England after the Reformation. English ecclesiastical lawyers continued to use pre-Reformation foreign papal law and domestic provincial and legatine law. These lawyers used several ideas to explain its status in pre-Reformation England. They usually held that it continued in force after the Reformation on the basis of section 7 of the Submission of the Clergy Act 1533 (if not repugnant to laws of the realm) – and a commission would reform it. However, it is submitted here that this statute enabled the continuance of only domestic provincial law and perhaps legatine law but not foreign papal law. Yet a 1543 statute continued the provincial law and ‘other ecclesiastical laws’ used in England, which may or may not have included legatine and papal law. Another of 1549 has no continuance provision, but the commission was to review ‘ecclesiastical laws used here’ – which, too, may or may not include legatine and papal law. A statute of 1553 repealed these earlier statutes. A statute of 1558 repealed that of 1553 but revived only the 1533 statute, not those of 1543 or 1549. This suggests that only domestic provincial law, and perhaps legatine law, continued on the basis of statute, and not foreign papal laws. The latter might have applied from 1543 to 1553 but not after 1558, as only the 1533 statute perpetuating solely domestic law was revived. Nevertheless, English lawyers continued to invoke foreign Roman canon law. By the nineteenth century they did so on basis of custom not statute – and the 1533 Act section 7 was repealed in 1969.