ECCESIASTICAL LAW IN NEW ZEALAND.

Waiapu Church Gazette, Volume 26, Issue 4, 1 April 1936, Page 6

ECCESIASTICAL LAW IN NEW ZEALAND.

(By a Barrister-at-Law.)

"The phrase 'Ecclesiastical Law,' " says a high authority, "may m England be considered either as confined to the law of the Church of England as administered by the ecclesiastical courts, or m a wider sense as including within its scope all laws relating to a church or ecclesia as such, whether derived from the law of the State, the laws of nature and of right reason, the divine law, or the laws of independent societies." (Halsbury's Laws of England, 2nd Edn., Vol. XL, p. 405, citing Hooker's, Ecclesiastical Polity, Book L, Sec. 16.) The ecclesiastical courts referred to* m this passage and the law which, they administer are a part of the general law of England, and, within the limits of their jurisdiction, these courts are not subject to the control of the ordinary courts of law. In earlier times the ecclesiastical courts possessed a very extensive criminal and civil jurisdiction over persons and things which we are accustomed nowadays to regard as purely the concern of the secular courts. Yet it is, for example, less than 80 years since the cognisance, of probate of wills and. administration of intestate estates was transferred from the church courts to the civil court. At the present time the jurisdiction of the ecceliastical courts extends only to enforcing the discipline of the clergy, regulating the conduct of office-bearers, protecting ecclesiastical land and buildings, and similar matters, and even with regard to these they have, to a great extent, fallen into disrepute.

In considering the position of ec«lestical law m this country, we must ask first whether there is any such, m the narrow sense mentioned above, that is any part of the general law especially touching things ecclesiastical and administered m special courts. We shall find there is not.

Next we must ask, what then is the position, m the civil courts, of the Church, its laws and its tribunals, and lastly, what is the law which is administered m those Church tribunals and who are bound by it?

I. The introduction of English law into a colony does not carry with it English ecclesiastical law. In the case of Re the Bishop of Natal (1864) 3 Moore's P.C. Cases (N.S.) p. 115, Lord Westbury said (at p. 148) "The United Church of England and Ireland is not a part of the constitution m any colonial settlement, nor can its authorities or those who bear office m it claim to be recognised by the law of the colony otherwise than as the members of a voluntary association," and at p. 152, -'It cannot be said that any ecclesiastical tribunal or jurisdiction is required m any colony or settlement where there is no established church; and m the case of a settled colony the ecclesiastical law of England cannot for the same reason be treated as part of the law which the settlers carried with them from the Mother Country." This judgment was followed m New Zealand m Baldwin v. Pascoe, referred to later, where it was said "The United Church of. England and Ireland m New Zealand is only recognised by the law of the colony as a voluntary association, the members being associated together by voluntary compact, as a branch of the Church of England, with a constitution agreed on by its members." It follows that ecclesiastical law as it exists m England, as part of the law of the country, has no authority m New Zealand as part of the law of this country.

11. The only manner m which civil courts m this country would take notice of ecclesiastical law would be where, m deciding whether a civil right, such as a right of property, had been invaded, the question arose whether what had been done was m accordance with the law of the Church, imported into the matter

as the terms by which the parties concerned had agreed to bind themselves. There are only two reported decisions of the Supreme Court m this country touching on question of ecclesiastical law. The first was Dodwell v; Bishop, of Wellington (1887) 5 N.Z.L.R. 263. This was an action by a priest whose licence to a parochial district had been revoked, for damages and reinstatement* It was held that the action did not lie, it being established that the revocation was not contrary to the canons. In the course of their judgment, Prendergast G. J. and Richmond J., said (at p. 267): "We understand it to be established by the decision of the Judicial Committee m Long v. Bishop of Capetown that questions of an ecclesiastical character essential to the determination of civil rights may be considered by civil Courts. Following this decision, m the case of Bishop of Natal v. Gladstone, Lord Romilly intimated that* if the question of the conformity of the teaching of the plaintiff m that case to he standards of the Church of England had been raised m the suit, he must have entertained it, and might have been compelled to decide upon it. So here, if it appeared that the revocation of the licence were contrary to the constitution and rules of this Church, and that it had incidentally involved the loss of emolument, we might be compelled to enquire into the propriety of the revocation; and the jurisdiction of the Court would enable it to restore to the plaintiff any temporal advantages of which he might appear to have been unjustly deprived thereby." The second case was Baldwin v. Pascoe (1889) 7, N.Z.L.R. 759, decided by Denniston, J. This was an action against a priest for damages for refusing to admit the plaintiff, a parishioner, to the Holy Communion, and it was held that no action lay, because there was no duty of which the civil courts could take notice, cast upon the priest to admit the parishioner to the Sacrament. The refusal was neither a breach of contract nor a tort. If it were a breach of church discipline, the only remedy was m the tribunals established by the rules of the Church for settling its own affairs.

If, m Dodwell's case, the Court had found that the Bishop, m revoking Dodwell's licence, had acted m a manner not authorised by the law oi the Cnurch, it would have taken cognisance or the action. But it would consider the law of the Church as the rules by which Dodwell and the Bishop had agreed to regulate their relations, and not as an ordinary part of the law of the land. Further it would interfere because Dodwell had suffered a temporal loss. On the other hand m Pascoe's case, there was no temporal loss, and if there was a breach of a purely spiritual duty, it was not a matter for the civil court.

111. We have seen that the secular courts m this country do not enforce ecclesiastical law, except where they find that such expresses the terms by which parties have agreed to bind themselves m their relations one with another. What then is the position of the tribunals established by the Conr stitution and Canons of the Church? The law is thus stated m Long v. Bishop of Capetown (1863) 1 Moore's P.C.C. (N.S.) 411, at p. 461: "Where any religious or other lawful association has not only agreed on the terms of its union, but has also constituted a tribunal to. determine whether the rules of the association have been violated by any of its members or not, and what shall be the consequence of such violation, the decision of such tribunal will be binding when it has acted within the scope of its authority, has observed such forms as the rules require, if any forms be prescribed, and, if not, has proceeded m a manner consonant with the principles of justice. In such cases the tribunals so constituted are. not m any sense Courts. They derive no authority from the Crown, they have no power of their own to enforce their sentences, they must apply for that purpose to the Courts established by law, and such Courts will give effect to their decision, as they give effect to the decisions of arbitrators, whose jurisdiction rests entirely upon the agreement of the parties." It is thus seen that not only will the Courts of law refrain from interfering with the Church's tribunals so long as they confine themselves to persons who have accepted their

jurisdiction, but they will subject to the same condition actively assist them to enforce their judgments against persons and property.

IV. The next question is where is one to find the "rules of the association" which form the law of the Church's tribunals which the law of the land allows them to enforce? One must turn first to the Constitution and the enactments of the General and the Diocesan Synods, and then to the individual submission which indicates the extent to which the person concerned has agreed to be bound by the law of the Church. Such individual submissions may be found m a declaration of submission to the General Synod, or m a declaration of submission to a Bishop, or m application for and acceptance

of enrollment m the Churchwardens' Book. An examination of the Constitution and N.Z. Canons indicates also that the Church m N.Z. to some extent adopts as part of its rules the ecclesiastical law of England. To the extent that it does so, that law becomes binding on the members of our Church who submit to it. As far as the Canon Law is concerned (meaning English Canon Law), two questions arise. First, what is the authority of the particular canon m England? Secondly, what is its authority m New Zealand? The law m England appears to be that PreReformation Canons are not part of the law unless they are shown to have been continuously adopted and recognised as binding, while PostReformation Canons are binding only on the clergy, and not on the laity.

It may be. that the same rule would apply here, or it may be that, so far they apply here at all, the Canons are of more force and effect here than they are m England. This is a question of interpretation which has not yet been raised for decision and on which no opinion can be offered here. . ■"; While no one would wish that we had ecclesiastical law or ecclesiastical courts m the English sense, it may well be questioned whether it would not be a good thing for the Church m this country if its tribunals were called upon sometimes to exercise their jurisdiction, particularly m the matter of restraining the liberties taken by individual clergy m deviating from the services of the Book of Common Prayer.