Abstract
This chapter outlines the developmental history of the Church of England, explaining and analysing its special constitutional standing.
Henry VIII started the process of creating the Church of England in 1534 with the Act of Succession and then the Act of Supremacy which recognised him as “the only supreme head of the Church of England called Anglicana Ecclesia”. Since then Anglicanism has been established as the Church of England under constitutional arrangements which provide for the reigning monarch to be both its Supreme Governor and Head of State. The key formative political milestones that have shaped the development of the Church of England will be set out and analysed.
Moreover, a privilege accorded to the established Church has traditionally allowed many of its constituent religious entities to be treated as ‘excepted charities’ by the Charity Commission and so enjoy the benefits of charitable status without the requirement to register and demonstrate public benefit. Not until the introduction of special provisions in the Charities Act 2006, now the Charities Act 2011, was this privilege withdrawn.
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Notes
- 1.
26 Henry Vlll, c.1.
- 2.
It was in the sixth century AD that the first Papal emissary, St Augustine, was sent from Rome to evangelise the Angles and established the first Christian church in Canterbury where he was the first to hold the office of Archbishop.
- 3.
See, further, MacCulloch, D. 2004. Europe’s house divided: 1490–1700. London: Penguin.
- 4.
See, further, Heal, F. 2002. Reformation in Britain and Ireland. Oxford: Oxford University Press.
- 5.
See, for example, Horton, M. 2011. For Calvinism. Grand Rapids: Zondervan.
- 6.
Heal, F. 2002. Reformation in Britain and Ireland. Oxford: Oxford University Press.
- 7.
See, the “Assertio septem sacramentorum”, the book written by Henry VIII to refute Luther.
- 8.
25 Henry Vlll, c.12.
- 9.
25 Henry Vlll, c.21.
- 10.
25 Henry Vlll, c.19 which provided that only the canon law as it then stood was to bind the clergy and laity, and only so far as it was not contrary to common and statute law (“be not contraryant nor repugnant to the lawes statutes and customes of this realm”, s.7), excepting only the papal authority to alter the canon law, a power which ended in later the same year, when it was enacted that England was ‘an Empire governed by one supreme head and king’.
- 11.
This enactment remains in force.
- 12.
25 Henry Vlll, c. xx.
- 13.
25 Henry Vlll, c.22.
- 14.
26 Henry VIII, c. i.
- 15.
See, Cawdrey’s case, 1591, 77 English Reports 1, at p. 10.
- 16.
See, Jones, P. 1929. Lynwood’s Provinciale, ed. Bullard, J.V. and C.H. Bell. London: Faith Press. The Provinciale was compiled by William Lynwood in about 1432 and is the principal source of canon law in England.
- 17.
See, Middleton v. Crofts (1736) 26 English Reports 788, in which ‘it was said the canons of 1603 might be enforced so far as they were declaratory of the established canon law before the Act of Submission [of 1533, i.e. before the Reformation]’.
- 18.
See, Hale, M. 1713. History and analysis of the common law of England, University of Chicago Press, 1 28–29.
- 19.
See, further, Helmholz, R.H. 2004. The Oxford history of the laws of England: The canon law and ecclesiastical jurisdiction from 597 to the 1640s. Oxford: Oxford University Press.
- 20.
31 Hen. VIII c.14.
- 21.
The first article expressed the doctrine of transubstantiation. Those denying this were to be burnt. If the other five articles were impeached the penalties were, for the first offence, confiscation of property, for the second, execution as a felon. The five articles declared (2) that communion in both kinds was unnecessary; (3) that priests ought not to marry; (4) that the vows of chastity ought to be observed in both sexes; (5) that private masses were allowable; (6) that auricular confession was necessary.
- 22.
Tunstall’s Summary, M. S. Cleop. E. V., 209.
- 23.
Richard Hooker (March 1554–3 November 1600), an Anglican priest and an influential theologian, whose best known work Of the Lawes of Ecclesiastical Politie was a study of the proper governance of churches and advanced the thesis that the Scriptures alone provided the rules necessary to ensure salvation.
- 24.
(1591) 77 English Reports 1 at p. 7.
- 25.
The ecclesiastical law of England consists of the general principles of the ius commune ecclesiasticum: see, further, Ever v. Owen Godbolt’s Report 432, per Whitlock J.
- 26.
Gorham v. Bishop of Exeter, The Privy Council, March 9, 1850.
- 27.
13 Eliz. 1, c.7.
- 28.
18 Eliz. 1, c.3.
- 29.
1 Jac. 1, c.11.
- 30.
3 Jac. 1, c.21.
- 31.
5 & 6 Edw. VI, c.4.
- 32.
5 Eliz. I, c.17.
- 33.
39 Eliz. I, c.6 and 43 Eliz. I, c.4.
- 34.
4 Jac. I, c.5.
- 35.
5 Eliz. I, c.9.
- 36.
13 Eliz. I, c.1.
- 37.
21 Jac. I, c.20.
- 38.
13 Eliz. I, c.8.
- 39.
5 Eliz. I, c.16.
- 40.
As cited in Helmholz, R.H. 2004. The Oxford history of the laws of England: The canon law and ecclesiastical jurisdiction from 597 to the 1640s, 276. Oxford: Oxford University Press.
- 41.
Helmholz, R.H. 2004. The Oxford history of the laws of England: The canon law and ecclesiastical jurisdiction from 597 to the 1640s, 286. Oxford: Oxford University Press.
- 42.
See, for example: Owen, D. 1971. A catalogue of the records of the Bishop and Archdeacon of Ely; Anglin, J. 1972. The Essex Puritan Movement and the “Bawdy” courts 1577–94. In Tudor men and institutions: Studies in English law and government, ed. Slavin, J. Baton Rouge: Louisiana State University Press; and Hill, C. 1997. Society and Puritanism in pre-revolutionary England. New York: St. Martin’s Press.
- 43.
As it was again under the brief reign of James II (1685–88).
- 44.
The Act of Supremacy 1558 restored the arrogation of ecclesiastical authority to the monarchy, confirmed Elizabeth I as Supreme Governor of the Church of England, and required any person taking public or church office to swear allegiance to her. In response, the Roman Catholic Church excommunicated Elizabeth in 1570.
- 45.
A modified version of the Statute of Uses 1597 (39 Eliz. I, c.6).
- 46.
Resolution, 16 December, 1640.
- 47.
See, for example, Coffey, J. 2000. Persecution and toleration in protestant England 1558–1689. London: Longman.
- 48.
Rivers, J. 2010. The law of organized religions: Between establishment and secularism, 16. Oxford: Oxford University Press.
- 49.
The last heretics to be burned at the stake in England were Legate at Smithfield in 1612 upon a writ de haeretico comburendo, and Wightman at Lichfield about the same time.
- 50.
See, the trials of Atwood 1618 (Cro. Jac. 421; 2 Roll. Abr. 78,) and Taylor 1676 (1 Ventris 293; 3 Kebble 607; 2 Strange 789).
- 51.
See, Blackstone, Commentaries on the Laws of England, (Book 4, c.4, s. iv), Yale Law School, at: http://avalon.law.yale.edu/18th_century/blackstone_bk4ch14.asp.
- 52.
2 Bolle’s Abridgment, 78.
- 53.
See, Coffey, J. 2000. Persecution and toleration in protestant England 1558–1689. London: Longman.
- 54.
Consisting of statutes such as: the Corporation Act of 1661 (prohibited from public office all who had not taken the Sacrament of the Lord’s Supper in accordance with the rites of the Church of England); The Act of Uniformity 1662 (made it illegal to assent to anything outside of the Book of Common Prayer); and the Test Act 1973 (made it illegal for persons to hold public office without first “receiving the Sacrament of the Lord’s Supper according to the usage of the Church of England”).
- 55.
See, the Conventicles Act 1670 (22 Car II c 1), s.1, preceded by the Conventicles Act 1593 and 1664. This set of statutes all sought to compel attendance at the Church of England and penalise any other form of association for religious purposes: an ironic accompaniment to the Statute of Charitable Uses 1601 which, in providing the foundations for charity law, is often viewed as the legislative catalyst for initiating associational activity and generating what is now known as the nonprofit sector.
- 56.
See, further, Bromley, B. 2002. 1601 preamble: The State’s Agenda for charity. Charity Law & Practice Review 17(3): 176–211.
- 57.
43 Elizabeth I, c.2. See, Jones, G. 1969. History of the law of charity 1552–1827. Cambridge: Cambridge University Press.
- 58.
See, further, Picarda, H. 2010. The law and practice relating to charities, 90. 4th ed. London: Bloomsbury Professional.
- 59.
See, for example, Croft v. Evetts (1606) Moore KB 784.
- 60.
Pember v. Inhabitants of Knighton (1639), 1 Eq. Cas. 95.
- 61.
See, for example, A-G v. Baxter (1684) 1 Vern 248.
- 62.
De Costa v. De Paz (1754) 2 Swan 487n; Cary v. Abbot (1802) 7 Ves 490.
- 63.
See, for example, Gates v. Jones (1690), cited in 2 Vern 266.
- 64.
(1713), unreported; see AG v. Cock (1751) 2 Ves Sen 273, 28 ER 177, at 274.
- 65.
1 Will. & Mar. c.18.
- 66.
This taking the form of a specific doctrinal commitment:
I doe solemnely and sincerely in the presence of God professe testifie and declare that I do believe that in the sacrament of the Lords Supper there is not any transubstantiation of the elements of bread and wine into the body and blood of Christ at or after the consecration thereof by any person whatsoever; and that the invocation or adoration of die Virgin Mary or any other saint, and the sacrifice of the masses as they are now used in the Church of Rome are superstitious and idolatrous, and I doe solenmely in the presence of God professe testifie and declare that I doe make this declaration and every part thereof in the plaine and ordinary sense of the words read unto me as they are commonly understood by English Protestants without any evasion, equivocation or mentall reservation whatsoever and without any dispensation already granted me for this purpose by the Pope or any other authority or person whatsoever or without any hope of any such dispensation from any person or authority whatsoever or without thinking that 1 am or can be acquitted before God or man or absolved of this declaration or any part thereof although the Pope or any other person or persons or power whatsoever should dispense with or annull the same, or declare that it was null and void from the beginning.
- 67.
1729 (Fitz-G. 64; 1 Barn. Ch. 162, 266; 2 Stra. 832).
- 68.
See, Woodward, E.L. 1938. The age of reform, 1815–1870. Oxford: Clarendon Press.
- 69.
[1976] 1 A.C. 397 (H.L.).
- 70.
[1932] 1 Ch. 99.
- 71.
[1940] Ch. 102.
- 72.
(1859) 7 HLC 282.
- 73.
[1953] 1 Ch. 810.
- 74.
See, Memorandum (1722) 2 Peere Williams 75; 24 ER 464 (PC).
- 75.
See, Daw, E.D. 1977. Church and state in the empire: The evolution of imperial policy 1846–1856. Canberra: Faculty of Military Studies, UNSW (as cited by Tong, R. 2012. Judicial intervention in the affairs of unincorporated religious associations in New South Wales, 125. Unpublished thesis submitted for degree of Doctor of Juridical Science, Faculty of Law, QUT, Brisbane).
- 76.
The Act of Union 1800, article 5, united the Church of England and the Church of Ireland into “one protestant episcopal church, to be called, the united Church of England and Ireland”.
- 77.
See, Helmholtz, R. 2004. The Oxford history of the common laws of England: The canon law and ecclesiastical jurisdiction from 597 to the 1640s. Oxford: Oxford University Press.
- 78.
25 Henry VIII. C.19.
- 79.
(1850) Moore’s Special Reports 462.
- 80.
(1863) 2 Moo PCCNS 375, PC.
- 81.
(1864) 3 Moo PCC NS 115, 148, 152; 16 ER 43. Also, see, The Queen v. the Provost and Fellows of Eton College 27 Law J Reports (NS)QB 132; (1857) 120 ER 228.
- 82.
Ibid at p. 57.
- 83.
(1867) LR 1 Sc & Div 568.
- 84.
Ibid, at p. 576.
- 85.
Ibid, at p. 588.
- 86.
See, Todd, A. 1880. Parliamentary government in the British colonies, 415. London: Longmans & Co.
- 87.
(1867) LR 1 Sc & Div 568.
- 88.
See, Fielding, H., The History of Tom Jones: A Foundling, Modern Library, New York, at p. 84.
- 89.
[1917] AC 406. See, also, Bird v. Holbrook (1828) 4 Bing. 628 where it was pronounced that “there is no act which Christianity forbids, that the law will not reach: if it were otherwise, Christianity would not be, as it has always been held to be, part of the law of England”, per Best CJ at p. 641.
- 90.
Clayton v. Ramsden [1943] AC 320 (HL). See, also, Re Moss’s Will Trusts [1945] 1 All ER 207 where Vaisey J was of the opinion that “the Jewish faith, whatever be the sense in which the words are used, is an expression of complete uncertainty” at p. 209.
- 91.
[1917] AC 406 (H.L.).
- 92.
Ibid, citing: Briggs v. Hartley (1850) 19 L. J. (Ch.) 416; Cowan v. Milbourn (1867) L. R. 2 Ex. 230; De Costa v. De Paz (1754) 2 Swanst, 487; and In re Bedford Charity (1819) 2 Swanst. 470, 527.
- 93.
R v. Dibdin [1910] P 57, CA.
- 94.
Ibid at p. 109.
- 95.
A long catalogue of cases beginning with De Costa v. De Paz (1754) 2 Swans 487, Chancery, including Lawrence v. Smith, Murray v. Benbow (1822) The Times 2 Feb. 1822, Briggs v. Hartley (1850) 19 L. J. (Ch.) 416, and ending with Pare v. Clegg (1861) 29 Beav 589, 54 ER 756, established that “the Courts will not help in the promotion of objects contrary to the Christian religion”.
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O’Halloran, K. (2014). Establishing the Church of England. In: The Church of England - Charity Law and Human Rights. Ius Gentium: Comparative Perspectives on Law and Justice, vol 36. Springer, Cham. https://doi.org/10.1007/978-3-319-04319-7_3
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