Project Canterbury

Reservation and Adoration:
A Historical and Devotional Inquiry

Shirley Carter Hughson
Superior of the Order of the Holy Cross

The Holy Cross Press
West Park, New York


transcribed by Dr Elizabeth G Mellilo
AD 2000

Chapter III
The Authority of the Canons

We must give further consideration to the canons, for there are many not unlearned persons amongst us who claim that if it can be showed that they have for a long time been neglected, they must therefore be regarded as voided of all force. This is not so much a question for theologians as for lawyers, and so to the lawyers let us go. Can desuetude emasculate a law of all force? The famous English canonist, Dr Lushington, stated the principle that is generally accepted when he declared: "No statute can be effected by non-usage."

Bishop Hopkins, perhaps the most learned ecclesiastical lawyer America has ever produced, commenting on this statement goes on to say: "It needs the authority of the legislature itself to alter what the legislature has established. No other power but that which creates can destroy the law. The omission to legislate cannot alter the law. The neglect to obey it cannot alter the law. The creation of a precedent against it cannot alter the law. In a word, no law can be deprived of its binding obligation until some other law is passed which of necessity does it away."

This principle has ever been maintained. An interesting case adjudicated in recent times by the law courts was that of Burder vs. Mavor in 1848. The Rev. Mr. Mavor by the decision in this case was deprived of the perpetual curacy of Forest Hill on the ground that he had violated the 29th Canon of the Fourth Lateran Council of 1215, which forbade a cleric to hold more than one parish.(1) It was on the 20th Canon of this same Council that Archbishop Peckham had based his direction for the suspension of such clergy as refused to reserve the Sacrament.

The most startling case the civil courts afford was one which came before the famous jurist, Lord Ellenborough, in 1818. A man named Thornton was charged with the murder of a woman, the chief witness against him being the woman's brother, one Ashford. Thornton demanded trial by battle, challenging his accuser to single combat according to the ancient law of ordeal, which had not been invoked in England for many centuries. The court took the appeal under advisement, and finding that the old law allowing it was still in force, gave the decision in favour of the accused. The accuser refused to meet him in combat, and the court ordered Thornton discharged from custody and no further proceedings against him were possible. Parliament then proceeded formally to remove from the books the statute which no one had dreamed would again be invoked.

We have been able to see what the authority of the old canons are in the mother-Church, and we must pass on to examine their application to us in the American Church. Does the law of the Church of England which was in force when the American Church was organised, bind us?

The judgement of men learned in the law, and also of the House of Bishops itself, is that such law as was in force in the English Church when the independent organisation of the American Church was effected, binds us, save where it has been definitely altered by our own statutes, or where it is "necessarily inapplicable."

The most formidable judgement set forth on this subject was that of the House of Bishops in the General Convention of 1808. The delegates from Maryland had been instructed by their diocese to secure, if possible, the passage and insertion in the Prayer Book of the English canon of 1603 on Marriage, along with the table of degrees of kinship within which it was forbidden to marry. The House of Bishops, in response to the application, declared that "agreeably to the sentiment entertained by them in relation to the whole ecclesiastical system, they considered that Table as now obligatory on this Church." This opinion seemed satisfactory to the House of Deputies, and no further action was taken.

Now was this the only occasion upon which the General Convention enunciated this principle. Again in 1814 a declaration was put forth that this Church "is the same body heretofore known in these States by the name of The Church of England," and that "when the severance took place, and ever since, this Church conceives of herself as professing and acting on the principles of the Church of England."

The question has also been frequently adjudicated by the civil courts of our country, and the decisions have been accepted by the ecclesiastical authorities as being consonant with their own views. The cases of Lynd vs. Menzies in the Supreme Court of New Jersey(2), and that of Crump vs. Morgan in the Supreme Court of North Carolina(3), may be cited out of the many decisions in which these principles were maintained by the Court. A generous list of representative cases with exhaustive discussion of the principles is given in White's Church Law, Chapter III. The full text of the decisions can be found in any good law library.

Learned canonists like Bishop Hopkins in his Law of Ritualism, Judge Hoffman in his Law of the Church, Dr. Vinton in his Manual of Canon Law, Bishop White, Dr. Francis L. Hawks, Hugh Davey Evans, and others whose names carry great weight, are of the judgment that the American Church is bound by English canon law, save where our own canon law has altered it, or where it is "necessarily inapplicable," to quote again Judge Hoffman's expression.

1. See Reichel, The Elements of Canon Law, Note 1, page 60
2. 33 NJ Law Rep., 162
3. 3 Iredell's Eq. Rep., 91

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