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

Abstract

The Ecclesiastical Jurisdiction Measure 1963 established the present judicial hierarchy for the provinces of Canterbury and York of the Church of England. This hierarchy comprises Church courts at diocesan and provincial levels, with further appeals heard by the Court for Ecclesiastical Causes Reserved and, in some instances only, the Judicial Committee of the Privy Council. Final appeal from the Court for Ecclesiastical Causes Reserved, and from ad hoc Commissions of Convocation, are heard by Commissions of Review, appointed by the Queen in Council. The changes made to the judicial structure of the Church of England in 1963 were widespread, and were especially significant at the appellate level. One of the most notable of the changes was the reduction in the role of the Judicial Committee of the Privy Council. This was largely motivated by long-standing opposition from certain elements within the Church to the perceived subordination of the ecclesiastical courts to secular tribunals. This opposition was fuelled by the nineteenth century controversy over ritual and ceremonial and the legality of ornaments, most of which disputes had doctrinal implications, yet were being decided in secular courts. But this preoccupation with a perceived subordination to the secular authorities distracted, it will be argued, attention from a more subtle weakness in the judicial apparatus of the Church. Although the Church had largely freed itself from subordination to secular tribunals, it was not free from the continuing influence of the parallel secular legal system. This is due to two major factors that had influenced, and continue to influence, the ecclesiastical courts. The first is that, because the Church of England is established by the general law of the country, the Church courts are the Queen's courts. The second and arguably much more important factor is the influence of the common law and its practitioners upon the jurisprudence of the Church courts. Both of these influences will be examined in the course of this paper, though the emphasis will be upon the second.