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The Spirit of the Canon Law and its Application in England

  • Eric Kemp (a1) (a2)


Bishop Eric Kemp was a canonist when such practice had yet to become fashionable once more. He was instrumental in the formation of the Ecclesiastical Law Society and served as its President from the creation of the Society until his death on the eve of Advent Sunday in 2009. He was a member of this Journal's Editorial Advisory Board from 1987 until 2002. The first issue of this Journal ran to 34 pages. The only substantive article, taking up more than half of its content, was by Eric Kemp. In celebration of the Silver Jubilee of the Journal and in recognition of its first President's contribution to its establishment and subsequent flourishing, this article is reproduced, lightly updated and annotated by the current Editor, who was pleased and proud to serve as Bishop Kemp's last chancellor in the Diocese of Chichester.1



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1 The Editor is grateful to Dr Robert Ombres OP and Professor Richard Helmholz for their assistance in the provision of footnote references, which were singularly lacking in the original.

2 Kemp, E, An Introduction to Canon Law in the Church of England (London, 1957), pp 7677.

3 Migne, J (ed), Patrologia Latina, vol 13 (Paris, 1845), cols 11311147, translated in Shotwell, J and Loomis, L, The See of Peter (New York, 1991), appendix I, pp 699708.

4 Migne, J (ed), Patrologia Latina, vol 67 (Paris, 1848), cols 149316.

5 Mortimer, R, Western Canon Law (London, 1953).

6 See now, Gallagher, C, Church Law and Church Order in Rome and Byzantium (Aldershot, 2002).

7 Hinschius, P (ed), Decretales Pseudo-Isidorianae et Capitula Angilramni (Leipzig, 1863).

8 For Ivo's works, see Migne, J (ed), Patrologia Latina, vols 161 and 162 (Paris, 1853, 1854); Ivo's Prologue is translated in Somerville, R and Brasington, B, Prefaces to Canon Law Books in Latin Christianity (New Haven and London, 1998), pp 132158.

9 Friedberg, E (ed), Corpus Iuris Canonici (Leipzig, 1879–1881), 2 vols, of which Gratian is the first.

10 Brundage, J, The Medieval Origins of the Legal Profession: canonists, civilians, and courts (Chicago, 2008).

11 See generally the Report of a Commission Appointed by the Archbishop of Canterbury, Dispensation in Practice and Theory with Special Reference to the Anglican Churches (London, 1944), and Adam, W, Legal Flexibility and the Mission of the Church: dispensation and economy in ecclesiastical law (Farnham, 2011).

12 Gratian, Decretum Dist I, dictum ante c 1, in Friedberg, Corpus vol I, col 1.

13 Kemp, Introduction, p 26, refers to Wehrlé, R, De la coutume dans le droit canonique (Paris, 1928) for the Aquinas citation. The author may have had Aquinas, Summa Theologiae I–II q 97 a 3 in mind. The quotation from Hostiensis is from Summa aurea, Lib I, tit De consuetudine, no 1.  It can most conveniently be found in the edition published in Venice, 1574 (reprinted Turin, 1963), col 80.

14 Kemp, E, ‘Zeger Bernhard Van Espen’, (1946) 49 Theology 194200, 227–232.

15 Kemp, E, ‘The Church of England and the Old Catholic churches’, in Bill, E (ed), Anglican Initiatives in Christian Unity (London, 1967), pp 145162.

16 Codex Iuris Canonici (1917). Translated and annotated by Peters, E (ed), The 1917 Pio-Benedictne Code of Canon Law (San Francisco, 2001).

17 For a discussion, see Van de Wiel, C, History of Canon Law (Louvain, 1991).

18 Codex Iuris Canonici (1983), canons 23–28. Translation and commentary in Beal, J, Coriden, J and Green, T (eds), New Commentary on the Code of Canon Law (New York, 2000), pp 8696.

19 For more recent coverage of this subject, see Bray, G (ed), The Anglican Canons 1529–1947 (Woodbridge, 1998); Helmholz, R, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford, 2004); Outhwaite, R, The Rise and Fall of the English Ecclesiastical Courts, 1500–1860 (Cambridge, 2006).

20 25 Henry VIII c 19 (1534).

21 See now, Helmholz, R, ‘The canons of 1603: the contemporary understanding’, in Doe, N, Hill, M and Ombres, R (eds), English Canon Law: essays in honour of Bishop Eric Kemp (Cardiff, 1998), pp 2335.

22 Report of the Archbishops' Commission on Canon Law, The Canon Law and the Church of England (London, 1947).

23 Kemp, Introduction, pp 63–73.

24 See now, Bursell, R, ‘What is the place of custom in English canon law?’, (1989) 1(4) Ecc LJ 1226; Bursell, R, Liturgy, Order and the Law (Oxford, 1996); Hill, M, Ecclesiastical Law (third edition, Oxford, 2007), pp 2324.

25 Kemp, Introduction, pp 71–73. The author drew on Sir George Lee's papers for his information (Bodleian Library, Oxford MS Eng Misc c 31 ff 135–142).

26 Surtees Society, vol 47 (1865), pp 101–107.

27 Kemp, Introduction, pp 70–71. The cases are Newbury v Goodwin (1811) 1 Phill Ecc 282; (1811) 161 ER 985 and Martin v Mackonochie (1868) LR 2 PC 365 at 382.

28 Royal Commission on Ecclesiastical Discipline (1906), vol IV, p 17.

29 Ibid, p 49.

30 See now, Maiden, J, National Religion and the Prayer Book Controversy, 1927–1928 (Woodbridge, 2009) and Adam, Legal Flexibility, ch 9.

31 Phillips, A, Aussant, J, Bursell, R and Wakefield, R (eds), Halsbury's Laws of England, vol 14: Ecclesiastical Law (fourth edition, London, 1975), para 941, n 1.

32 For an account of Robert Phillimore (1810–1885), and of his son Walter, who in 1895 edited the second edition of his father's Ecclesiastical Law, see Baker, J, Monuments of Endlesse Labours: English Canonists and their Work 1300–1900 (London, 1998), pp 147164.

33 For Richard Burn (1709–1785), see Baker, Monuments, pp 115–124.

34 Squibb, G, Doctors' Commons: a history of the College of Advocates and Doctors of Law (Oxford, 1977).

35 Report of the Archbishops' Commission, The Canon Law of the Church of England, p 97.

36 For one person's reflection on this subject see Boulton, P, ‘Twentieth century revision of canon law in the Church of England’, (2000) 5 Ecc LJ 353368. For an authoritative overview and critique of developments from 1987 to the present, see Slack, S, ‘Synodical government and the legislative process’, (2012) 14 Ecc LJ 4381.

37 Bishop Kemp was speaking at Corpus Christi College, Cambridge, in March 1987; it is unclear to whom he was referring when making this observation.

38 Doe, Hill and Ombres, English Canon Law.

39 Kemp, E, Shy But Not Retiring: memoirs, ed Haselock, J (London, 2006), p 129.

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