Duhaime's Law Dictionary


Ecclesiastical Law Definition:

Church law.

Related Terms: Canon Law, Theocracy, Civil Law, Common Law

Synonymous to canon law.

The body of church-made law which binds only those persons which recognize it, usually only church officers, and based on aged and pedantic precepts of canon law.

In Emory v. Jackson Chapel, Justice Tyson of the Court of Appeals of North Carolina deferred to these words:

"An ecclesiastical matter is one which concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of membership, and the power of excluding from such associations those deemed unworthy of membership by the legally constituted authorities of the church; and all such matters are within the province of church courts and their decisions will be respected by civil tribunals."

As an 1902 Ohio judgment1 noted, the scope of ecclesiastic law in England was, historically, considerable encompassing most of family law, divorce and even wills and estates.

In Mackonochie v Penzance, Justice Blackburn wrote:

"The ecclesiastical law of England is not a foreign law. It is a part of the general law of England - of the common law - in that wider sense which embraces all the ancient and approving customs of England which form law, including not only that law ... to which the term common law is sometimes in a narrower sense confined, but also that law administered in Chancery and commonly called equity, and also that law administered in the Courts Ecclesiastical, that last law consisting of such canons and constitutions ecclesiastical as have been allowed by general consent and custom within the realm - and form, as is laid down in Caudres Case the King's ecclesiastical law."

The replacement of the jurisdiction of the ecclesiastical courts in England with the common law courts was not an easy process. Edward Coke hints of the institutional stress when, in Volume III of his Institutes, he notes:

"Certain it is, that this kingdom hath been best governed, and peace and quiet preserved, when both parties, that is, when the justices of the temporal courts and the ecclesiastical judges, have kept themselves within their proper jurisdiction, without encroaching or usurping upon one another."

That may be so but access to justice is not simplicity of the justice system was best served when the ecclesiastical courts were phased out:

"The ecclesiastical courts ... had to do with wills, intestacies and licenses for marriage as well as ecclesiastical matters, but in 1857 their jurisdiction as to wills and intestacies was transferred to a new Court of Probate and to the county courts; and the jurisdiction exercised by them in matrimonial disputes was vested in the new Court for Divorce and Matrimonial Causes which first set on January 16, 1858."1

REFERENCES:

  • Burn, Richard; Phillimore, Robert, Ecclesiastical Law, 9th Ed. (London: Sweet, Stevens & Norton, 1842)
  • De Witt v De Witt, 66 NE 136 (1902) - NOTE 1.
  • Duhaime, Lloyd, Legal Definition of Articuli Cleri
  • Emory v. Jackson Chapel, 598 SE 2d 667
  • Mackonochie v Penzance, [1881] 6 AC 424
  • NOTE 1: Bowen-Rowlands, E., Seventy-Two Years at the Bar (London: MacMillan and Co., 1924), page35.

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