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PART TWO - Ecclesiastical Law in Hamlet

I will now state the law of England as it existed at the time that Hamlet was written and revised in 1604. This was about the time of the revision of the canons of the Church of England of 1603 and before the revision of the present Book of Common Prayer and the rubrics as they now stand. We must therefore resort to the old canons, usages and ecclesiastical and statute law of England and the Book of Common Prayer then in use.

Although it was after or during the reformation and under a protestant sovereign, yet the distinction between the Episcopal Church and the former Roman Catholic Church services were not marked or well defined. The Puritans (Presbyterians) were almost as hostile to many of the tenets and practices of the Episcopal Church of England as to the former Roman Catholic Church. The Church of England, in the reign of Queen Elizabeth, although called "protestant," was in fact and substance but little more in that direction than had been done in the reigns of Henry VIII and Edward VI. The changes made by statutes were marked and few in Henry's reign, and were more important and essential to the future Church of England than any of those made in the reign of Queen Elizabeth. The Articles of Religion were established by law in the reign of Edward VI. A.D. 1553. The present form of them was settled in 1571.

The canon law up to 1604 remained in full force in England as it had been when under the Pope of Rome. The statute of 25 Henry VIII, Chapter 19, among other things, provided that all the canons, constitutions, ordinances, and synodals provincial being then already made and not repugnant to the laws of the land or the King s prerogative, should still be used and executed. This was confirmed by I Elizabeth, Chap. I, A.D. 1558.

During the reign of Elizabeth there was high church and low church practiced to an extent never before allowed, and this depended upon the opinion and choice of the bishop of the diocese and of the rector of the parish. In fact, the Episcopalians and the Catholics and others were required to attend the Parish Church or did not attend any church, for there were no other places for meetings. Seats were not placed in churches until James I reign. As an indication of the state of religious feeling on the accession of Elizabeth to the Crown in 1559 (when Queen Mary had held it for the six preceding years, and the nation had been received into the Roman Catholic Church), of the 9,400 beneficial men in England who held under the Roman Catholic reign, all took the oath of supremacy and retained their places under Elizabeth excepting 189; of these last 14 were bishops, and 80 were priests. Most of her councillors were continued from the reign of Queen Mary. The Queen herself was more inclined to the practices of the Church of Rome than to the Reformed Churches of Calvin and Luther. She was crowned by a Roman Catholic Bishop according to the Roman Catholic ritual. All the bishops in Parliament and eight peers voted against the Book of Common Prayer adopted in her reign by Parliament, for the uniformity of worship in England. It was not approved by authority of the Church of England in convocation. It was far from the Roman Catholic ritual and required much less than that which was adopted by Parliament and the Church in 1662, and which is still in use in England and in the United States. There was more liberty then than now left to the choice of the bishops of each diocese as to how far from the Church of Rome the ritual and practices could go. The statutes of the realm prohibited certain practices, but those that were not positively forbidden could be followed and usually were to the same extent as when England was under the Church of Rome and Popery governed the ritual. The legal ritual was such as the most ultra Puritans (Presbyterians) could use by only reading the short service while the Episcopal Church could have nearly the same service as when it was under the Church of Rome. It was a concession to the Puritans by Parliament to prevent anarchy and to restore tranquility in the nation. But all concessions by Church or State to each other and all laws from the time of Edward VI., 1549, when the first Protestant prayer book and ritual of the Church of England was adopted and approved jointly by authority of the Church in Convocation and the state in Parliament until the adoption of the present Book of Common Prayer in 1662 by the like authority, proved unavailing until the toleration Act of 1689 by Parliament.

None other rituals or forms of worships had the joint sanction of Church and State.

The act of uniformity of worships (I Elizabeth Ch., 2, A.D. 1558) was virtually only to affect the Puritans. It prescribed certain penalties upon ministers for not using the service according to the Book of Common Prayer, and also for using any other service in lieu thereof. No part of it could be omitted, but much more than therein required could be used according to the old practices in the Church of Rome unless positively prohibited by statute.

No less form or kind of worships than thereby prescribed was tolerated or allowed in England. The toleration act, allowing protestant dissenters certain privileges and rights as to other kinds of beliefs and forms of worships was not enacted until 1689. In Elizabeth's reign Papistry and Puritanism were both punished as heresies. The rural districts were strong in the old faith and church rituals, while in the seaport towns the new faith taught by Calvin and Luther was stronger.

The punishment which the church meted out to suicides still prevailed as it had been for centuries before. It is true the rubric in the Book of Common Prayer against the use of the burial service in cases where the deceased had laid violent hands on himself was not inserted until the year 1662, yet it was in force under the old church canons and was in effect the same as now.

Christian burial was denied suicides in all parts of England under the canon law.

A council of Arles, about the middle of the fifth century, having pronounced suicide to be the effect of "diabolical inspiration," a council of Braga, in the following century, ordained that no religious rites should be celebrated at the tomb of a suicide, and that no masses should be said for his soul.

It was ordained in the sixth century by the canon law that no commemoration should be made in the Eucharist for such as destroyed themselves, neither should their bodies be carried out with palms nor have the usual service read over them.

And these provisions, which were repeated by later councils, were gradually introduced with the canon law into the laws of the Barbarian and of Charlemagne. Thus they were spread all over Europe.

The part of the canon law against suicides was taken from the action of the first council of Braga, which occurred many years before the canon law noticed it.

"The first ecclesiastical rule which occurreth as to suicide is the 34th canon of the first council of Braga, in the year 563, which forbids any burial service for those qui violentan sili ipsis infermet mortem. But in Wilkins' councils the 5th chapter of the 2d book of the Penetential of Egbert, Archbishop of York, written about the year A.D. 750 (which chapter is plainly taken from the canon of Braga), adds this limitation, "If they do it by the instigation of the devil." And at p. 232 the 15th of the canons published in King Edgar's time, about the year 960, adds a further limitation. "If they do it voluntarily by the instigation of the devil." * (I Burns, Eccles. Law, 265). It will be observed that this canon law of Egbert was in the time of the Saxon Heptarchy, but it, nevertheless, applied to all of England.

The Decretum of Gratian inserting the canon of Braga adds to it "voluntaire." (do.)

The exact language of the canons of Edgar, as translated by Wilkins, is as follows:

"Concerning those who by any fault inflict death upon themselves, let there be no commemoration of them in the oblation, or likewise for them who are punished for their crimes, nor shall their corpses be carried unto the grave with palms."

"If any shall voluntarily kill himself by arms, or by any instigation of the devil, it is not permitted that for such a person any masses be sung, nor shall his body be put into the ground with any singing of a psalm, nor shall he buried in pure sepulchre." (Canons Edgar, 1 Wilk., 225, 232.) (Johnson, A.D. 740, No. 96, and 963, No. 24.) (1 Burns' Ecc. Law, 260.)

To the rigid rule of the church there was then, as there still is, no exceptions, but the law made the decision in a coroner's inquest binding and conclusive upon the question; in a legal phrase the coroner's inquest was not traversable in any Court or place, but must be followed by all and every person."

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* "Instigation of the devil" meant a frenzy and not a deliberate self destruction, "with malice afore-thought" as a deliberate crime was designated in law. back

† Pure sepulchre referred to white garments as well as other emblems of purity. When persons were baptized in the Church of Rome, the recipient received a white garment (to be worn for a specified time) and a lighted taper placed in his hands as symbols of purity and the light of faith. This custom in the early church of representing the faithful in white robes and palms of victory is undoubtedly referred to by St. Paul in Rev. VII, 9, 14. back

‡ This is not so in the United States; a decision of a coroner's court is not binding or conclusive. An inquest is merely used for the purpose of obtaining evidence that may be used in a criminal proceeding. back

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