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Sir Edward Coke Gets It Wrong? A Brief History of Consecration

  • Kenyon Homfray (a1)
Abstract

In many modern works of ecclesiastical law, the Institutes of Sir Edward Coke are given as the authority for the consecration of buildings as places of public worship. For authority Coke relies on scriptural precedent. This paper suggests that, in fact, the origin of consecration as a legal precedent lies in pre-Christian Roman law. 1

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1 This article is based on a paper given at a postgraduate seminar at Cardiff Law School in May 2007. I am very grateful to Professor The Revd Thomas G Watkin for his invaluable help on primary sources of Roman law of the sacred and religious, and to Professor Norman Doe for commenting on a draft of the paper. Many of the old sources referred to in this paper are readily available on or via the website of Fordham University <http://www.fordham.edu>, accessed May and June 2007: the search engine on Fordham University's homepage will take one directly to the Fordham source. This paper is written from an Irish viewpoint.

2 StopfordE, A Hand-Book of Ecclesiastical Law and Duty for the use of The Irish Clergy (Dublin, 1861), p vi , writing at the time of the United Church of England and Ireland.

3 Since 1922, the only occurrence of ‘consecration’ in the searchable electronic databases of Irish statute and case law has been in The Huguenot Cemetery Dublin (Peter Street) Act 1966, a private Irish act. The tenor of this Act is that remains removed from Peter Street by heirs, executors, administrators or relatives prior to its redevelopment must be re-interred in consecrated burial ground – s 3(3); and those otherwise moved must be re-interred in ground ‘consecrated in accordance with the rites of the French Reformed Church’ – s 3(6).

4 I am aware that this is a sweeping statement, contradiction of which would be greatly welcomed. Research so far reveals nothing to suggest common-law recognition of any legal effects of consecration in disestablished and non-established churches in the United Kingdom or Ireland. The consecrated land of disestablished and non-established churches would appear to be on the same legal footing as, say, the clubhouse and playing field of a rugby club, though obviously the internal law of a church recognises the effects. This paper does not take account of domestic UK legislation, measure or case law as such, seeking as it does a root for consecration as a legal concept. Certain statutory exemptions are granted to ecclesiastical buildings used for certain ecclesiastical purposes – for example, the Planning (Northern Ireland) Order 1991, SI 1991/1220 (NI 11), Pt V, art 44(8); The Ecclesiastical Exemption (Listed Buildings and Conservation Areas) Order 1994, SI 1994/1771; Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (ch 9), s 54. These, however, hardly constitute a recognition of consecration per se.

5 See relevant entries in Chambers Twentieth Century Dictionary (Edinburgh, 1972, 1977, rep 1978). Cf J Inst 2.1.7 and 8: Sacra sunt, quae rite et per pontifices deo consecrate sunt, veluti aedes sacrae et dona, quae rite ad ministerium dei dedicate sunt … (Sacred things are those which have been ceremonially consecrated to God by priests, for instance churches, and also gifts solemnly dedicated to the service of God): BirksP and McLeodG, Justinian's Institutes (London, 1987). See also HillM, Ecclesiastical Law (3rd edition, Oxford, 2007), p 220 , para 7.02: ‘Dedication … is merely a declaration of intent as to the purpose for which the land is to be put. Consecration … is the setting aside of land solely for sacred use in perpetuity’. In Roman Catholic canon law, places are dedicated, and people consecrated – see JonesR, The Canon Law of the Roman Catholic Church and the Church of England: a handbook (Edinburgh, 2000), p 46 .

6 See BridenT and HansonR, Moore's Introduction to English Canon Law (3rd edition, London, 1992), p 86 .

7 WaltonR (ed), The Encyclopaedia of Forms and Precedents. Fifth edition, volume 13: ecclesiastical law, education (London, 1987), para 42 [45], p 28 .

8 Ibid, para 42, n 6, p 28, referring to 14 Halsbury's Laws (4th edition), paras 1069, 1073.

9 14 Halsbury's Laws (4th edition), para 1054, n 1, 1068, n 1.

10 Ibid, para 1054, n 2.

11 Halsbury distinguishes between private consecrated chapels and places of public worship: ibid, para 1054, n 4.

12 Ibid, para 1068.

13 Hill, Ecclesiastical Law, p 220, para 7.02.

14 14 Halsbury's Laws (3rd edition), para 881.

15 This appears to be an incident of establishment – see Wright v Ingle (1885) 16 QBD 379 at 399, CA. Lord Esher MR noted that a statute may put any building on the same footing in law as that of a church of the Church of England in common law, but no other form of legal act, such as a covenant or trust deed, will do so – Wright v Ingle (1885) 16 QBD 379 at 391–392, CA. See also 14 Halsbury's Laws (4th edition), para 1306, n 6. Phillimore's only comment on the legal effect of consecration refers to this case: PhillimoreR, Ecclesiastical Law, vol 2 (London, 1895), p 1399 .

16 See 14 Halsbury's Laws (4th edition), para 1306, n 6. For the effects of consecration on a private chapel, as distinct from a place of public worship, see Re Tonbridge School Chapel (No 2) [1993] Fam 281 at 290, Rochester Cons Ct, and Briden and Hanson, Moore's Introduction to English Canon Law, p 86.

17 For a history of the conflict between the common law and the admiralty court, see the introduction to PrichardMJ and YaleDEC, Hale and Fleetwood on Admiralty Jurisdiction, Selden Society vol 108 (London, 1993), pp xlvii ff.

18 Ibid, p xlix.

19 Ibid.

20 PocockJGA, The Ancient Constitution and the Feudal Law: a study of English historical thought in the seventeenth century (2nd edition, Cambridge, 1987), pp 280305 .

21 See HelmholzRH, Roman Canon Law in Reformation England (Cambridge, 1990), p 76 .

22 RaffieldP, Images and Cultures of Law in Early Modern England: justice and political power, 1558–1660 (Cambridge, 2004).

23 Ibid, pp 1–5.

24 Ibid, p 177. It seems that the Bible was considered the ultimate ancient constitution of England.

25 Ibid, pp 106–107, 109.

26 Ibid, pp 107, 179, 181, 199.

27 Ibid, p 5.

28 A lucid sense of Elizabethan xenophobia can be found in HutchinsonR, Elizabeth's Spymaster (London, 2006). See also Raffield, Images and Cultures of Law, generally.

29 Both Coke and Blackstone showed a distinct anti-papal, anti-ecclesiastical stance, and Blackstone an additional anti-clerical stance – see Coke's ‘Speech and charge at the Norwich Assizes’ in SheppardS (ed), The Selected Writings and Speeches of Sir Edward Coke (Indianapolis, IN, 2003), pp 544548 (papists and ecclesiastical courts, but see also p 547 for a defence of ecclesiastical civilian law as represented by the bishops in parliament); and BlackstoneW, Commentaries on the Laws of England, Book the Third (Dublin, 1769), pp 6162 (ecclesiastical courts are a vile and foreign usurpation of the ancient constitution of England), and p 124 (how to be very rude to a clergyman and get away with it).

30 See Raffield, Images and Cultures of Law, pp 106–107. We should perhaps also take into account European developments of the time: the general European-wide Reformation tendency that favoured the Scriptures for precedent; the secular backlash against the ius commune of Roman and canon law; and the decreasing influence of Roman law as a law of last resort. See StraussG, Law, Resistance, and the State: the opposition to Roman law in reformation Germany (Princeton, NJ, 1986), passim; JohnstonD, ‘The general influence of Roman institutions of state and public law’ in MillerDL Carey and ZimmermannR (eds), The Civilian Tradition and Scots Law: Aberdeen quincentenary essays, Schriften zur Europaischen Rechts- und Verfassungsgeschichte, Bd 20 (Berlin, 1997), pp 100101 . For how the ius commune was integrated with territorial law in Germany, see BermanHJ, Law and Revolution 2: the impact of the Protestant Reformation on the Western legal tradition (Cambridge, MA, 2003), ch 3. For a wider European discussion, see HelmholzRH (ed), Canon Law in Protestant Lands (Berlin, 1992).

31 3 Co Inst 200–204. The edition referred to is CokeE, The Third Part of the Institutes of the Laws of England (London, 1797), pp 200204 , available at <http://www.constitution.org/coke/coke3rd.htm> in facsimile form, which loses some of the text closest to the gutter.

32 3 Co Inst 203.

33 3 Co Inst 201.

34 Phillimore uses this part of the quotation from Coke in his General Observations on churches and churchyards, though without comment – R Phillimore, Ecclesiastical Law, vol 2, p 1383.

35 3 Co Inst 203. A marginal note mentions 8 H.6.32.37, but research has so far not identified the contents of these statutes. It appears that these are statutes of 1429, but there seem to be only 29 statutes for that year, rather than the 37 or more that Coke's reference suggests.

36 Ezekiel 1: 3.

37 Ezek 43: 11–12.

38 Family, in this sense, may be better understood as ‘lineage’.

39 Ezek 43: 26–27.

40 Ezek 43: 27.

41 Ibid.

42 Genesis 23: 9.

43 Gen 23: 11.

44 Gen 23: 15–16.

45 Gen 23: 17.

46 Gen 23: 20.

47 Psalm 90 has no obvious connection with the matter in hand. It refers to the Lord as the dwelling place or refuge of his people (v 1), rather than to physical place. Psalm 24 refers to the hill of the Lord (v 3), which may refer to Jerusalem and Mount Zion. Kidner identifies the psalm with David appropriating the Jebusite stronghold: KidnerD, Tyndale Old Testament Commentaries Series: Psalms 1–72 (Leicester, 1973), p 113 . The psalm is used in the liturgy for the consecration of a church (see, for example, the Irish Book of Common Prayer (Dublin, 1926), p 312) and it indicates that blessing shall be received from the Lord for those who go into his holy place with clean hands. Again, it appears to have little to do with dedication and consecration. Psalm 26 speaks of ‘the place where thy glory dwells’ (v 8) and of the great congregation (v 12). In Psalm 27, the supplicant requests to ‘dwell in the house of the Lord all the days of my life, to behold the beauty of the Lord, and to inquire in his temple’ (v 4). Psalm 84 is a paean of praise to the dwelling place of the Lord of hosts. Psalm 134 is a very short psalm – ‘Come, bless the Lord, all you servants of the Lord, who stand by night in the house of the Lord. Lift up your hands to the holy places, and bless the Lord. May the Lord bless you from Zion, he who made heaven and earth.’

48 It is perhaps surprising that Coke did not mention Solomon's dedication of the temple in 1 Kings 8. Solomon declares that he has built an exalted house where God is to dwell forever, even though heaven and earth cannot contain the deity. Solomon dedicates the house of the Lord, and also ‘the middle of the court that was before the house of the Lord’ – 1 Kings 8: 64.

49 Bullingbroke is in Phillimore's List of Authorities – R Phillimore, Ecclesiastical Law, Vol 2, p xx.

50 As it then was, being part of the law of the land until disestablishment of the Irish part of the United Church of England and Ireland on 1st January 1871 – see the Irish Church Act 1869, s 21.

51 BullingbrokeE, Ecclesiastical Law: or, the statutes, constitutions, canons, rubricks and articles, of the Church of Ireland. Methodically digested under proper heads. With a commentary historical and juridical (Dublin, 1770).

52 The second edition of R Burn, Ecclesiastical Law was published in 1769.

53 An unpopular legate 1236/7–1241: AdamsN and DonahueC, Select Cases from the Ecclesiastical Courts of the Province of Canterbury c.1200–1301, Selden Society vol 95 (London, 1981), p 325, n 1 gives the date of Otto's Council of London as 1237.

54 Bullingbroke, Ecclesiastical Law, pp 247–248. See also Phillimore, Ecclesiastical Law, vol 2, p 1389.

55 Othobon, alias Ottobon, Octobonus, Ottobonus, otherwise Ottobueno Fieschi, was cardinal deacon of St Adrian and papal legate of Britain – see Adams and Donahue, Select Cases from the Ecclesiastical Courts, pp 69n, 265–267, 300–305. Ottobon's Council of London was in 1268, and in the same year he left England: ibid, pp 265, n 11, 302, n 3, 325, n 1.

56 Bullingbroke, Ecclesiastical Law, p 248. Othobon became Pope Adrian V.

57 Ibid.

58 The gloss would more obviously apply, if yet unsatisfactorily, to Othobon's constitution.

59 Bullingbroke, Ecclesiastical Law, pp 248, 249.

60 Ibid, p 252 citing (incorrectly) Coke, 4 Inst p 203 – it should be Coke, 3 Inst p 203.

61 BrowneA, A Compendious View of the Ecclesiastical Law of Ireland (Dublin, 1803), p 174 also takes the common law approach. It is perhaps worth noting that Browne, in the preface to this work, deplored the lack of knowledge of ecclesiastical law at the time in Ireland, where there had been no Reformation ban on the study of canon law.

62 The text of the Thorne Edition of Bracton in English is available online at Harvard Law School Library at <http://hlsl5.law.harvard.edu/bracton/>, accessed 4 June 2007. All citations to Bracton are to the volume and page as they appear on the Harvard website.

63 Maitland was famously derisive of Bracton's knowledge of Roman law (see MaitlandFW, Select Passages from Bracton and Azo, Selden Society vol 8 (London, 1894)) and I am grateful to Professor Doe for drawing my attention to this. Maitland's comment unleashed a great deal of odium academicum in defence of Bracton – see, for example, Holdsworth'sWS review of H Kantorowicz, Bractonian Problems (Glasgow, 1941), (1942) 57 no 228 English Historical Review 502–504; HG Richardson, ‘Azo, Drogheda and Bracton’, (1944) 59 no 233 English Historical Review 32 and 42–44, suggesting Bracton's legal education at Oxford was curtailed by his entering the king's service in 1239 and at that point he had only studied the elementary Institutes of Justinian. Pennington identifies a certain reluctance in Maitland to acknowledge the influence of the ius commune – see K Pennington, ‘Learned law, droit savant, gelehrtes Recht: the tyranny of a concept’ (1994), <http://faculty.cua.edu/pennington/learned.htm>, accessed 19 July 2007. More recently, Breslow has suggested that Maitland was uncomfortable with the influence of learnéd law: see his review of HudsonJ (ed), The History of English law: centenary essays on Pollock and Maitland (Oxford, 1996), in (2001) 19 no 1 Law and History Review, <http://www.historycooperative.org/journals/lhr/19.1/br_2.html>, accessed 19 July 2007. It seems that Maitland shared Coke's and Blackstone's antipathy to the ius commune, though in a more gentlemanly manner, as befitted his times – see FisherHAL, The Collected Papers of Frederick William Maitland (Cambridge, 1911), pp 438445 . For an example of the sort of course that Bracton may have attended, see de ZuluetaF and SteinP, The Teaching of Roman Law in England around 1200, Selden Society, supplementary series vol 8 (London, 1990).

64 Bracton, De Legibus et Consuetudinibus Angliae, ed and trans by ThorneSE, 4 vols (Cambridge, MA, 1968–1977), vol 2, p 39 .

65 ‘Those things are sacred and holy which are properly consecrated and dedicated to God by His ministers, as churches, not only cathedral but conventual and parochial’ – Bracton, De Legibus, vol 2, p 58. In Justinian's Digest (D) of 553 ad (and so of the Christian era), holy things are those that are defended and protected from the injuries of men (D 1.8.9; see also D 1.8.6.2).

66in bonus dei hominum censura’ (emphasis added). This suggests an echo from Cicero (c.106–43 bc), who held that once-consecrated sacred things (res sacrae) could not be usucapted – that is, acquired privately by long possession – and that this rule was one not of the ius civile but of the ius gentium (Cicero, De Haruspicum Responsis 14.23): see WatsonA, The Law of Property in the Later Roman Republic (Oxford, 1968), pp 4 and 22. Aelius Gallus (dates unknown, but probably lived sometime during the last two hundred years of the Republic, that is, c.220–27 bc) ‘said that it was generally agreed (satis constare ait) that a temple consecrated to a god was sacer’ (ibid, p 2). See also J Inst 1.2.1 for that which is common to all mankind.

67 At this point, the footnote in the Thorne edition of Bracton refers to J Inst 2.1.8.

68 Bracton, vol 2, pp 40–41.

69 This may refer to the papal interdict of 1208–1214 of King John's kingdom, when the celebration of public worship and the sacraments was forbidden, and presumably all consecrations ceased. It may also suggest an interdict against mortmain. A reading of Blackstone, book 2, ch 18 (vol 1, p 299) implies that this refers to the second great charter of Henry III (reigned 1216–1272). Blackstone's reference is ‘Mag Cart 9’; however, in the original Magna Carta this citation does not refer to church lands. Magna Carta was reissued in 1224/1225 by Henry III, and it may be that it is the second charter to which reference is made – I have so far been unable to access the text. Blackstone states that the restriction to which he refers applied only to religious houses, and was to deal with an abuse whereby religious houses had failed to get the necessary licences for mortmain in the two centuries of upheaval following the Norman conquest. Bracton can hardly be referring to Edward I's Statutes of Mortmain of 1279 or 1290 if his work was produced before his death in 1268.

70 Bracton vol 2 p 58 – ‘Also things annexed to them [churches and cathedrals], as cemeteries and other places where the dead are buried, though not formally dedicated, as in the time of the interdict’. There appears to be a clear link here to the Institutes of Gaius (G). Gaius states ‘[A]nything in the provinces not consecrated by authority of the Roman people is not sacred properly speaking, yet is treated as sacred’ – G 2.7.

71 Bullingbroke, Ecclesiastical Law, p 248.

72 Odericus (or Ordericus) Vitalis, ‘On Henry I’, from his Ecclesiastical History. This can be found in ChibnallM (ed and trans), The Ecclesiastical History of Orderic Vitalis, volume VI (Oxford, 1978) and is available at <http://www.fordham.edu/halsall/source/orderic.html>, accessed 3 June 2007.

73 Phillimore, Ecclesiastical Law, vol 2, p 1401.

74 Annales Cambriae (447–954), available at <http://www.fordham.edu/halsall/source/annalescambriae.html>, accessed 3 June 2007.

75 Bede, Ecclesiastical History of the English Nation, book 5, ch 4. See also book 5, ch 5. Available at <http://www.fordham.edu/halsall/basis/bede-book5.html>, accessed 3 June 2007.

76 Eusebius Pamphilus of Caesarea, The Life of the Blessed Emperor Constantine (The Bagster translation, revised by Ernest Cushing Richardson), book 3, chs 25–46 (see ch 40 for the decision to dedicate), available at <http://www.fordham.edu/halsall/basis/vita-constantine>, accessed 3 June 2007.

77 Notes & Queries, 4th series, vol 2, no 11 (19 April 1873), p 327.

78 Unfortunately Christian historiography has tended to dismiss non-Christian and pre-Christian study. Jerry Linderski has written of the general academic neglect of the Roman law of religion – ‘It stems from a tradition that either dismissed all religions as irrelevant superstitions or dismissed particularly the religions of antiquity as “pagan” and hence of no consequence’ (cited in WatsonA, The State, Law and Religion: pagan Rome (Athens, GA, 1992), p 95, n 3). Reasons for the dearth of Roman religious law are given in ScheidJ, ‘Oral tradition and written tradition in the formation of sacred law in Rome’ in AndoC and RupkeJ (eds) Religion and Law in Classical and Christian Rome (Stuttgart, 2006), pp 1920 .

79 Only readily available from 1903 – see GordonWM and RobinsonO, The Institutes of Gaius (London, 1988), p 12 (hereafter, G Inst).

80 An accessible and readable description and explanation of res sacrae, res religiosae and res sanctae is that of Watson, Law of Property, ch 1, pp 3–15 on ‘Kinds of res’.

81 G Inst 2.1.3, 4, 5, 6.

82 G Inst 2.1.7.

83 J Inst 2.1.7.

84 J Inst 2.1.9.

85 J Inst 2.1.8. It appears that, in the time of the late Republic (133–49 bc), some things sacred and religious could revert to private ownership and use, but this seems to have been a reversion restricted to dedicated gifts given to a temple – see Watson, Law of Property, pp 9–10.

86 For Christian antipathy to Papinian, see Jerome's (c.342–420) caustic remark that ‘Papinian taught one thing, our Paul teaches another’ (Jerome, Epistles, 77.3), quoted in AS Jacobs, ‘Papinian commands one thing, our Paul another: Roman Christians and Jewish law in the Collatio Legum Mosaicarum et Romanarum’ in Ando and Rupke, Religion and Law in Classical and Christian Rome, p 85.

87 J Inst 1.25.2; 1.26.7; 2.1.8; 2.6.9; 2.2.0.14; 2.25.1; 3.23.7.

88 The question of the persistence of consecration has itself been a curiously persistent one – see Phillimore, Ecclesiastical Law, vol 2, p 1400. The matter was settled in England by the Consecration of Churchyards Act 1867, s 12, the essence of which is much the same as Roman law once we have overcome the Roman distinction between sacred and religious – once consecrated, always consecrated.

89 In the Digest of 533 ad, Justinian refers to the pre-Christian On the Edict, Book LXVIII of Ulpian (d 228). Ulpian tells us that ‘a sacred place is one which has been consecrated’ (D 1.8.9.2) and that ‘it should be understood that a public place can only become sacred when the Emperor has dedicated it, or granted permission for this to be done’ (D 1.8.9.1) – ie, by proper authority. See also D 43.6.

90 C Ando, ‘Religion and ius publicum’ in Ando and Rupke, Religion and Law in Classical and Christian Rome, p 131.

91 Ibid.

92 See Watson, Law of Property, p 3; Johnston, ‘General influence of Roman institutions’, p 95; JohnstonD, The Roman Law of Trusts (Oxford, 1988), p 81 . For an example of the continuity of Roman law, the following will be familiar to canon lawyers of disestablished churches – ‘Societies and associations which have the right to assemble can make, promulgate, and confirm for themselves such contracts and rules as they may desire; provided nothing is done by them contrary to public enactments, or which does not violate the common law.’ This is claimed to be in The Twelve Tables of 451–450 bc (Table 8, Law 2) in the Scott translation at <http://www.constitution.org/sps/sps01_1.htm>, accessed 8 June 2007. However, Table 8 concerns the law of real property, and this law sits there very uneasily, nor does it appear in other available versions, and so the citation must be regarded as suspect. One wonders from where it has slipped in?

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