The fusion of the common law and the ecclesiastical law : is it complete?

Thesis

Chapter I pages 1- 24

Consequent upon the separation of the temporal and ecclesiastical courts by the ordinance of William I, 1072 - 1076, it was necessary to decide : (a) What law could be applied in the Church courts? and (b) Over what matters they had jurisdiction? Due to the royal power and writs of prohibition the practical ascendency in deciding these matters belonged to the temporal courts. Nevertheless, it was a time not of fusion but of finding a modus vivendi and the canon law explained any seeming encroachment upon the jus commune by recognising local variations by the application of canonical custom.

Chapter II pages 25 - 45

With the beginning of the sixteenth century the authority of the canon law began to be challenged. Hunne's Case epitomised the laity's opposition and this opposition was given jurisprudential and theological backing by Henry Standish who sowed the seeds of the receptionist doctrine- The watershed may be found in 1515; thereafter the common law was to achieve ascendency backed by the literary arguments of John Skelton, Simon Fish, Christopher St. German and Stephen Gardiner.

Chapter III pages 46 - 95

The Reformation Parliament saw the beginning of ecclesiastical law as opposed to the canon law applied in England. Statutory regulation of Church life was extremely wide. Convocation in theory had a parallel place to that of Parliament but royal control of its legislative powers radically curtailed them and Convocation could not derogate from the common law, statute law or the King's prerogative. The revision of the canon law did not take place but the canon law was similarly limited. Moreover the study of the canon law was seriously curtailed.

[Please see the thesis for complete abstract.]

Authors: Bursell, R

• Peer review status: Peer reviewed
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford