Dispensation and Ecclesiastical Law

The Reverend Dr William Adam has recently published an interesting and thought-provoking book, Legal Flexibility and the Mission of the Church.  Dispensation and Economy in Ecclesiastical Law (Ashgate Publishing, Farnham, 2011).  The book should encourage fresh thinking on ‘dispensation’ as a subject of ecclesiastical law.

‘Dispensation’ may have two meanings relevant to ecclesiastical law:

(1) The received legal definition of ‘dispensation’ is the relaxation of a general rule in a particular case.

(2) However, the word can also refer to a particular legal-constitutional system or regime.

The Reformation statutes made two points about dispensation:

(1) They denied that the Pope had power to grant ‘licences, dispensations, compositions, faculties, grants, rescripts … or any other instruments or writings … for any cause or matter’ within the jurisdiction of England (Ecclesiastical Licences Act 1533, s.2).  Thus the papal jurisdiction to grant dispensations was abolished, but only along with all other papal jurisdiction.

(2) They denied the power of  the Pope and the Church to dispense from any divine law, as revealed in the Bible (cf. Act of Succession 1533, which denied a power to dispense from the ‘prohibited degrees’ of marriage in the Bible).

However, there was nothing in the Reformation statutes which denied that purely human laws might be dispensed from.

In the 17th century, the constitutional debate shifted from the Pope to the Monarch.  The Bill of Rights 1689 deprecated King James II’s practice of ‘assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without the consent of Parliament’.  It affirmed that this ‘pretended power … by regal authority, without the consent of Parliament, is illegal’.  Again, there was no denial that laws might be dispensed from, provided that the power of dispensation was lawfully conferred and not a mere ‘pretended power’.

In the 19th century Phillimore’s Ecclesiastical Law (2nd edition 1895) made only the briefest references to particular dispensations, and did not treat dispensation as a discrete subject of ecclesiastical law.

The foregoing account may suggest that dispensation is not a difficult or controversial issue in ecclesiastical law.  The only relevant principle of ecclesiastical law is that the power of dispensation must be subject to the laws of both God and man.  However, a Church of England report Dispensation in Practice and Theory, published in 1944, prompted a revival of interest in the subject.  E Garth Moore devoted a chapter of his Introduction to English Canon Law (1st edition, OUP, 1967) to ‘Dispensation’.  That chapter survives in the most recent edition of Moore’s work (3rd edition, 1993).  Dr Adam’s book shows that interest in the subject continues into the 21st century.

The 1944 report was written in the wake of Parliament’s rejection of the revised Prayer Book.  This obliged the Church of England to adhere to the Act of Uniformity and Book of Common Prayer of 1662, even though it had long been recognised that the 1662 regime was outdated and unenforceable.

The ecumenical movement was also gathering pace in the mid-20th century.  This raised the question of whether the Eucharist could validly be administered by a non-conformist minister who was not an episcopally ordained priest.  Underlying both the liturgical and the ecumenical issues was the fundamental religious question of what the Eucharist really is.

The Church of England was powerless to prevent Parliament rejecting its revised Prayer Book, but its own legislative process was also somewhat confused.  The Church of England Assembly (Powers) Act 1919 conferred power on the Church Assembly, a nationwide body, to prepare legislative Measures for Parliament, but the two Convocations of Canterbury and York retained their ancient power to legislate by canon.

Thus there were disagreements on worship and doctrine between the various ‘parties’ in the Church, but the constitutional situation of the Church was unacceptable to them all.  As the 1944 report noted disapprovingly, the unfortunate consequence of the constitutional impasse was a general resort to ‘methods of condonation and dissimulation … which are unbecoming in the relations of fathers-in-God with their sons in the Gospel’ (p.159).

The report’s proposed solution to the Church’s difficulties was ‘the revival or extension of the practice of dispensation’ (p.159).  Individual bishops, or the bishops collectively, should be empowered to dispense from obsolescent ecclesiastical laws and inconvenient liturgical rubrics (cf p.160).

The Church’s mid-20th century constitutional difficulties were subsequently resolved, though not until many years after the 1944 report.  The Convocations ceded their ancient power to legislate by canon to the newly-constituted General Synod, pursuant to the Synodical Government Measure 1969.  Since then canons have become, in effect, the secondary legislation of ‘parent’ Measures.  This has produced much greater legislative coherence.

The Worship and Doctrine Measure 1974 finally gave the Church almost complete control of its liturgy.  The 1974 Measure did indeed provide a new dispensation.  Likewise the Ecumenical Relations Measure 1988 and canons B43 and B44 constituted a new dispensation with regard to ecumenical worship and ministry.

The 1944 report contains a learned account of the historical development of the practice of dispensation in the Church.  However, the report is of very limited assistance to the study of ecclesiastical law, and not only because the ecclesiastical law has changed so much since it was written.  With the exception of Mr Justice Vaisey, its authors seem to have been historians and theologians rather than lawyers. Moreover, the primary subject of the report is the worship and doctrine of the Church, not its law.

The report may also have confused the two legal meanings of dispensation described above.  It argued for an episcopal power of dispensation, but it was really seeking a new dispensation, or regime, of public worship.

Even if the report did not confuse these two meanings, it did not really address the legal difficulty.  The Church’s need in the mid-20th century was for a new regime to regulate its worship and doctrine, i.e a dispensation in sense (2) above.  The power of dispensation in sense (1) was invoked in order to free the Church from laws which were outdated but which unfortunately could not be abolished.  However, dispensation in sense (1) requires legal authority just as much as dispensation in sense (2).  The power of dispensation must itself be conferred by law.  The same constitutional difficulty which precluded the introduction of a new dispensation (2) also precluded the exercise of a power of dispensation (1).

In the case of Martin v Mackonochie (1868) 2 Law Reports Privy Council 365, the Privy Council categorically denied that bishops had power to dispense from the 1662 regime: ‘In the performance of the services, rites and ceremonies ordered by the Prayer Book, the directions contained in it must be strictly observed: no omission and no addition can be permitted’ (pp.382-3).

There is another source of confusion in the 1944 report.  The historical evidence suggests that ‘dispensation’ in the early Church was the process of reconciling heretical and schismatic groups who had left the Church, and Christians who had renounced their faith through fear of persecution (Adam, p.10).  The authors of the 1944 report may have understood ‘dispensation’ in this sense, or something like it, as a process of reconciling the various different parties (Anglo-Catholic, Low Church etc) within the contemporary Church of England.  However, the received legal definition of dispensation, as the relaxation of a general rule in a particular case, bears no resemblance to this idea of reconciliation.

Mark Hill correctly observes that ‘Though well developed in Roman Catholic canon law, no explicit doctrine of [dispensation] is discernible in the laws of the Church of England’ (Ecclesiastical Law, 3rd edition, OUP, 2007).  Adam’s book contains a useful chapter on the Roman Catholic law concerning dispensation.

English ecclesiastical law does contain provision for dispensation.  This is helpfully described in Adam’s book.  The revised canons, and other ecclesiastical legislation, confer power to dispense from a number of general rules concerning the Church’s ministry.  Most of these general rules, and the power to dispense therefrom, are probably derived from mediaeval canon law.

The power of dispensation is generally reserved to Archbishops and bishops.  For example, the Archbishop of Canterbury may dispense from the minimum canonical age for ordination (canons C3(6) and (7)).  Bishops may dispense their clergy from the obligation of residing on benefice (canon C25(2)), though residence will in future be governed by the terms of service regulations and ‘common tenure’.  Bishops may also dispense from the general rule forbidding clergy to engage in secular employment (canon C28).

However, there is little or no ecclesiastical law concerning the exercise of a power of dispensation, the criteria according to which a dispensation should be granted or refused.  Decisions granting or refusing a dispensation are not published.  This affords little scope for legal commentary on ecclesiastical dispensation.

A marriage licence is often described as a ‘dispensation’ from banns.  This may be inaccurate.  It is true that a licence dispenses with the need for banns.  However, dispensation in the legal sense is dispensation from a law, not a need.  A common licence is an alternative to banns, rather than a dispensation from them.

The only marriage licence which may properly be regarded as a dispensation is the Archbishop of Canterbury’s special licence.  The law requires that all Church of England marriages must be solemnised only in an authorised church or chapel, and within the ‘canonical hours’.  The special licence dispenses from this general rule by allowing marriage to be solemnised at any convenient time and place (Marriage Act 1949, s.79(6)).

Canon C14 provides that the officiating Archbishop may ‘dispense’ with the oath of canonical obedience when consecrating a bishop who is to minister outside the Church of England.  Again, this is to dispense with an oath, not a law.  The law, or rule, of canonical obedience applies only to bishops within the Archbishop’s jurisdiction.  If a new bishop is not within the Archbishop’s jurisdiction in the first place, no relaxation of the law is required in his favour, but there is a need to dispense with the oath.

Ecclesiastical Law Ancient and Modern

Historical Development

It is surprising that the best short description of English ecclesiastical law should come from Strasbourg.  Amid all the confusion of English courts and lawyers on the subject, this dictum of a foreign tribunal may be commended for its clarity, simplicity and accuracy:

‘The ecclesiastical law of England is as much the law of the land as any other part of the law.  It is grounded in both common and statute law, and is altered from time to time by statute or by Measure, a form of legislation initiated by the Church of England but requiring Parliamentary approval’.

(Tyler v UK (1994) European Commission on Human Rights, Determination 21283/93, text published in Mark Hill, Ecclesiastical Law 2nd edition 2001, OUP, p.677).

Since the Reformation, ecclesiastical law, the law of the Church of England, has come from four institutional sources:

(1) the secular courts

(2) Doctors’ Commons (the ecclesiastical courts)

(3) the Convocations / General Synod and

(4) Parliament

As a result of the Ecclesiastical Offices (Terms of Service) Measure 2009, we must now add a fifth institutional source of ecclesiastical law

(5) the Archbishops’ Council (for Terms of Service Regulations).

History shows us how sources (1) to (4) have changed over time.  From 1662 until the 19th century, sources (1) and (2) predominated.  The Convocations were of marginal importance.  However, this situation changed radically from the mid-19th century.  With the closure of Doctors’ Commons, it is the courts which have now been marginalised as sources of ecclesiastical law.  Sources (3) and (4), by contrast, have broadened enormously.

As a result of the Church of Assembly (Powers) Act 1919 and the Synodical Government Measure 1969, sources (3) and (4) have largely, but not completely, merged.  It is in this context that we should formulate our definition of ecclesiastical law.

Professor Norman Doe draws a distinction between ‘internal church-made law and external state-made law’ (The Legal Framework of the Church of England (1996)  Clarendon Press, Oxford, p.32).  Mark Hill introduces a further distinction between ‘[ecclesiastical] laws … some imposed by the state, some made by the Church with the concurrence of the state, and others created internally by the Church’ (Ecclesiastical Law 2nd edition (1995), pp.1-2).

It is true that ecclesiastical law is now found mostly in Measures and Canons, and that these legislative instruments are ‘internal’ to the extent that they are the work of ecclesiastical bodies.  However, too much may be made of this internal / external distinction.  Both ‘internal’ and ‘external’ laws pertain to the same function, which is the administration of the Christian religion.

Thus the Marriage Act 1949 and the Chancel Repair Act 1932 were made by Parliament, not by the Church, even though passed many years after the 1919 Act.  These Acts are concerned to regulate church marriage and the repair of places of worship, both of which are ecclesiastical subjects.

In a sense, ecclesiastical law is exactly the same today as it was in the early modern period.  The Church of England remains part of the state.  Its function is the administration of the Christian religion, by Word and Sacrament.  Ecclesiastical law regulates this function.  It is therefore the counterpart of secular constitutional and administrative law.

What has changed, of course, is the attitude of the state towards religion.  This change explains the decline of the ecclesiastical courts and the rise of modern synodical government.

Function and Purpose

The original purpose of ecclesiastical law was best explained in Cawdrey’s Case (1591) 77 English Reports 1:

‘The ecclesiastical law and the temporal law have several proceedings and to several ends: the one being temporal, to inflict punishment upon body, lands or goods: the other being spiritual pro salute animae … to reform the inward [man].  [Thus] both … jurisdictions … do join in this: to have the whole man inwardly and outwardly reformed’ (p.7).

This dictum makes clear the original, presecular basis of ecclesiastical law: the theocratic assumption that the state had a responsibility for the souls of its subjects, not merely for their persons and property.  People were just as much subject to the English law regulating the salvation of their souls as to the law regulating their property. 

Though not the same as canon law, the ecclesiastical law of the presecular era shared the same overriding object as canon law, salus animarum suprema lex, the salvation of souls is the supreme law.

The Court of the Arches confirmed in the case of Breeks v Woolfrey (1838) 163 English Reports 304 that ‘touching and concerning [the] soul’s health … is the usual style and language of the proceedings of the [ecclesiastical] court’ (p.307). 

Thus the ecclesiastical law discussed by Lord Denning in his famous article ‘The Meaning of Ecclesiastical Law’ (1944) 60 Law Quarterly Review 235, and defined by him as ‘technical ecclesiastical law’ might be more aptly described as the law of the soul.  The ‘remedies’ imposed by the ecclesiastical courts were directed towards the salvation of the subject’s soul.

This explains why Lord Denning’s discussion of ecclesiastical law is so anachronistic.  Needless to say, the modern state does not accept any responsibility for the salvation of souls.  Modern criminal jurisdiction may seek to reform or rehabilitate an offender, but only in relation to society, not to save his immortal soul.  As the Court of the Arches drily observed in the case of Phillimore v Machon (1876) 1 Probate Division 481,

‘the punishment of the laity for the good of their souls by the ecclesiastical courts would not be in harmony with modern ideas’ (p.487).

The state is now concerned to regulate the relations of its subjects inter se, but not the relationship of the subject to God.  The subject’s relationship with God is regarded as a private, voluntary matter only.  For the state to regulate such a relationship is seen as a grave infringement of the subject’s ‘human rights’.

This, of course, does not allow much scope for an ecclesiastical law whose whole raison d’etre was to regulate the subject’s relationship to God.  The secularisation of state and society in the 19th century was the essential reason for the closure of Doctors’ Commons.

Secularisation notwithstanding, the Church of England remains the ecclesiastical state, constituted by law.  Lord Justice Phillimore suggested in Marshall v Graham (1907) 2 King’s Bench 112 that

‘Establishment means that the state has accepted the Church as the religious body in its opinion truly teaching the Christian faith’. 

It may be hard to see much evidence of acceptance of the Christian faith by the modern secular state.  However,  historical traces of the secular state’s acceptance of the truth of the Church of England’s doctrine are still visible in two well-known aspects of the secular constitution, the right of bishops to sit in the House of Lords, and the Protestant settlement of the Crown.

It is also true that the state continues to administer the Christian religion through the Church of England, its ecclesiastical branch.  Through this administration, the state continues to offer the Christian religion to its subjects.  The subject is, of course, free to accept or reject the Christian religion thus administered.

However, the secularisation of the state has altered the character of ecclesiastical law.   Ecclesiastical law continues to regulate the administration of the Christian religion, the process by which Christianity is offered to subjects.  However, it no longer assumes a responsibility for the soul.  The salvation of souls is no longer the supreme ecclesiastical law, or indeed any part of the ecclesiastical law. 

Does this mean that ecclesiastical law itself has lost its soul?  The Court of the Arches was, of course, correct to hold in Phillimore v Machon that ecclesiastical discipline of the laity is not realistic in the modern secular age.  Nevertheless, a difficulty remains.  The ecclesiastical law that emerged from the ruins of the old theocracy has the same function as before, but it no longer has any defined object or purpose.  It still explains how the Christian religion is administered, but no longer why it is administered.  The administration of the Christian religion becomes an end in itself, not a means to an end.

Lords Blackburn and Denning on Ecclesiastical Law

In the case of Mackonochie v Penzance (1881) 6 Appeal Cases 424, Lord Blackburn defined ecclesiastical law as ‘such canons and constitutions ecclesiastical as have been allowed by general consent and custom within the realm’ (p.446).

Lord Blackburn also sought to identify the sources of ecclesiastical law:

‘When the question arises what is the English ecclesiastical law … great weight should be given to the principles of the ecclesiastical law, laid down by those ancient writers on the ecclesiastical law of England whose treatises have been accepted by … the Ecclesiastical courts as of authority … [and] to the practice of the Courts Ecclesiastical … But most weight of all is … to be attributed to judicial decisions’ (p.447).

These dicta suggest that ecclesiastical law is those elements of the mediaeval canon and civil law recognised and administered by the Church courts. 

Such a definition may have been a trifle anachronistic, even for the early 1880s.  One would never know from reading Mackonochie v Penzance that Doctors’ Commons had been closed down about 20 years earlier and ecclesiastical jurisdiction all but abolished.  It is true, however, that the case concerned disciplinary proceedings against a clergyman (the Rev Mackonochie).  Clergy discipline was one matter over which the ecclesiastical courts retained jurisdiction after the mid-19th century reforms.  

Lord Denning expanded on Lord Blackburn’s definition in ‘The Meaning of Ecclesiastical Law’ (1944) 60 Law Quarterly Review 235.  He proposed two meanings of ecclesiastical law

(1) its general sense and

(2) its technical sense.

In its general sense, ecclesiastical law is the law relating to any matter concerning the Church of England.  In its technical sense, ecclesiastical law is ‘the law administered by ecclesiastical courts and persons, in the same way that ‘equity’ in a technical sense meant the law administered by the Courts of Chancery’ (p.236).

‘Technical’ ecclesiastical law may be distinguished by the remedies awarded by the ecclesiastical courts, whether to clergy or laity:

(1) monition

(2) penance

(3) suspension ab ingressu ecclesiae and

(4) excommunication. 

Technical ecclesiastical law can also be defined by reference to its rights and obligations.  This definition is not easy, because it becomes necessary to distinguish the law exclusively declared by the ecclesiastical courts from that declared by the secular courts. 

On Lord Denning’s analysis, law declared by the secular courts is not ecclesiastical law in its technical sense, only in its general sense.  Law exclusively declared by the ecclesiastical courts concerns

(1) clergy discipline

(2) faculties and

(3) marriage licences.

However, Lord Denning also identified certain matters where the law is enforced both by the ecclesiastical and the secular courts:

(1) the consecration of land

(2) sequestration of ecclesiastical property

(3) the incumbent’s obligation to repair his parsonage, and to reside in it

(4) damage to property in churches and churchyards and

(5) the obligation to repair the parish church.

The difficulty with Lord Denning’s analysis of ecclesiastical law is that it is highly anachronistic, and was so even at the time he wrote it.  He expands Lord Blackburn’s definition very learnedly, but without making any attempt to update it.   

Thus Lord Denning’s account of ‘technical’ ecclesiastical law has nothing to say about the Church Assembly / General Synod, the Convocations, the Ecclesiastical / Church Commissioners or the other institutions that have governed the Church since 1919.  Nor even does it include the canons of 1603.  The definition of ecclesiastical law is restricted to the Church courts, but the canons were promulged by the Convocations.

Lord Denning’s reference to the ‘remedies’ of the ecclesiastical courts may require clarification.  In secular law a remedy is an award (usually damages) made to compensate the victim of a wrongful act.  In the ecclesiastical courts, remedies were intended to reform the offender pro salute animae, so as to secure the salvation of his soul, not to compensate his victim.  They were ‘medicinal’ in character.

Ecclesiastical courts can no longer order penance or exclusion from the parish church.  If a person is to be excluded from church an injunction from the secular court will be required.  Monition (now described as injunction in the Clergy Discipline Measure 2003) and ‘excommunication’, in the sense of exclusion from holy communion, are both still available to the Church but are exercised with extreme infrequency.

Some of the hybrid ecclesiastical-secular jurisdictions identified by Lord Denning are also anachronistic.  The designation of a public place of worship as such now depends on the authority of a statutory scheme, not consecration, albeit that consecration is a preliminary to the making of the scheme.  The obligation to repair the parish church is now enforceable only against a lay rector, and, under the Chancel Repair Act 1932, proceedings may only be brought in the secular court.  The management of parsonages and glebe is an administrative rather than a judicial matter and is dealt with by diocesan ‘boards’, not by Church courts.

If the definition of ecclesiastical law is limited to the work of the ecclesiastical courts, it will exclude the vast mass of law concerning the Church, including all the most important law.  The ecclesiastical authority of the Monarch and Parliament is a doctrine of statute and common law, to which the ecclesiastical courts contributed little.  The law regulating the Church’s central activity of worship has always been regulated by statute since the Reformation (the Acts of Uniformity and now the Worship and Doctrine Measure 1974).  Even when the ecclesiastical courts were called upon to decide questions of worship and doctrine, their decisions were still subject to the overriding jurisdiction of the Privy Council, a secular tribunal.

Although the law concerning pew rights and sittings in church was mostly decided by the ecclesiastical courts, the law concerning proprietary rights over the parish church and churchyard was developed by the secular courts: see for example Griffin v Dighton (1864) 122 English Reports 767, Greenslade v Darby (1868) 37 Law Journal 137.

On the other hand, Lord Denning’s ‘general’ definition of ecclesiastical law (‘the law relating to any matter concerning the Church of England’) is too broad to be of much help.

Lord Denning’s analysis of ecclesiastical law was followed in Attorney-General v Dean and Chapter of Ripon (1945) 1 Chancery 239, a case that was decided just after he wrote his article.  The court slightly expanded Lord Denning’s definition, by suggesting that a Church Measure could also constitute ‘technical’ ecclesiastical law. 

Later courts and commentators have not followed the Blackburn-Denning definition of ecclesiastical law.  It is too narrow and anachronistic.  However, there has been little success in formulating an alternative definition.

In Wallbank v Aston Cantlow Parochial Church Council (2002) Chancery 51, the best description of ecclesiastical law that the Court of Appeal could offer was ‘a portmanteau term which embraces not only the canon law but both secular legislation and common law relating to the Church’ (para 8).

Mark Hill offers a very ‘general’ definition of ecclesiastical law as ‘the law of the Church of England, howsoever created’, which includes ‘laws, rules and norms, some imposed by the state, some made by the Church with the concurrence of the state, and others created internally by the Church’ (Ecclesiastical Law 2nd edition 2001, OUP, pp.1-2).

Norman Doe argued that ‘the terms ‘canon law’ and ‘ecclesiastical law’ ought [both] to be discarded in favour of the title ‘church law’, to include both internal church-made law and external state-made law’ (The Legal Framework of the Church of England, Clarendon, Oxford, 1996, p.32).  However, he apparently changed his mind about this, as his next book was entitled The Canon Law of the Anglican Communion (1998).

English Ecclesiastical Law is NOT Canon Law

The Constitutional Doctrine

There is no doubt of the great influence of mediaeval pan-European canon law on English common law.  However, English common law is clear that canon law was not, proprio vigore, part of English law.  As Lord Chief Justice Sir Matthew Hale said:

‘the authority and force they [the civil and canon laws] have here is not founded on, or derived from, themselves … they bind no more with us than our laws bind in Rome or Italy … all the strength that either the papal or imperial laws have obtained in this kingdom, is only because they … are part of the statute laws of the kingdom or else by immemorial usage and custom in some particular cases and courts, and no otherwise’ (History and Analysis of the Common Law of England 1713, pp.28-29).

Thus mediaeval canon law is part of English law only to the extent that it is incorporated into English law.  It may be incorporated in one of two ways:

(1) expressly, by being codified as statute law or

(2) implicitly, by the sanction of ‘immemorial usage and custom’ (p.28).

Any rule of mediaeval canon law that is not incorporated into English law by one of these two ways cannot be part of English law.

Hale’s analysis is confirmed by case law.  Cawdrey’s Case (1591) 77 English Reports 1 explains that ‘Albeit the Kings of England derived their ecclesiastical laws from others [i.e Catholic Europe], yet so many as were … approved and allowed here, by … a general consent, are … rightly called the King’s ecclesiastical laws’ (p.11).

In R v Millis (1844) 8 English Reports 641, the House of Lords explained that

‘The law by which the spiritual courts of this Kingdom have … been governed … is not the general canon law of Europe … but, instead thereof, an ecclesiastical law, of which the general canon law is no doubt the basis, but which has been modified and altered … by the ecclesiastical constitutions of our Archbishops and bishops and by [Parliament] and … has been known … by the distinguishing title of the King’s ecclesiastical law.  The canon law of Europe does not, and never did, as a body of laws, form part of the law of England’ (p.898, emphasis supplied).

In Reichel v Bishop of Oxford (1889) 14 Appeal Cases 259, the Rev Mr Reichel delivered a deed of resignation to his bishop, then changed his mind and attempted unsuccessfully to withdraw it.  In challenging the validity of his own resignation, he apparently ‘relied much on foreign canonists’, and referred to proceedings in the papal chancery (pp.265-6). 

However, the House of Lords reaffirmed the position that European canon law per se was not part of English law.  Whatever their validity in the papal courts, the canonical rules cited by Mr Reichel had not been incorporated into English law.

The question of the incorporation of canon law into ecclesiastical law was discussed in depth in Read v Bishop of Lincoln (1889) 14 Probate Division 88.  The Bishop was accused of certain ritualistic offences.  The Archbishop of Canterbury summoned him to answer the accusations.  The Bishop disputed the Archbishop’s jurisdiction to discipline him.  At that time the discipline of bishops (as distinct from lesser clergy) was not regulated by statute.

In support of his objection, the Bishop cited certain canons of the Council of Chalcedon of 451, and of synods of the late Roman Empire, which supposedly asserted that a bishop could be tried only by the whole episcopate of the province, and not by the Archbishop alone.

The Archbishop dismissed the Bishop’s objection.  The Privy Council affirmed the Archbishop’s decision.  The ancient canons cited by the Bishop had never been received into English law.  Nor had they even been received by the Western Church, but only by the Greek Church.  Nor, on their wording, did the canons state that bishops could be tried only by their provincial synods.  They merely assumed that the trial of a bishop was ‘a usual and obvious function of synods’ (p.108).

Furthermore there was a distinction between doctrine and discipline.  The Council of Chalcedon and other councils and synods of the early Church took decisions both on questions of religious doctrine and on questions of discipline and practice. 

The Archbishop observed that ‘[Their] definitions of doctrine are our rule … But the canons of order and discipline passed in those same councils … are on another footing’ (p.109).

This case, which presaged the more famous ‘Lincoln Judgment’, helpfully illustrates the Church of England’s relationship with the pre-Reformation ecumenical councils.  The doctrine of the early councils is accepted in England, but their discipline is not.  By contrast, much of the discipline of the mediaeval councils is accepted in England, but their doctrine is not.

It is wrong to identify ‘canon law’ with the canons of the Church of England.  The domestic canons are not the same as the mediaeval Catholic canon law of Europe.  In Kemp v Wickes (1809) 161 English Reports 1320, the Dean of the Arches drew a distinction between ‘the ancient general canon law’ and ‘our own canons’ (p.1324).

Application of the Doctrine

Hale’s analysis of the relationship of canon law to ecclesiastical law should guide the researches of ecclesiastical lawyers and courts.  If some part of canon law has been incorporated into statute law (Act of Parliament, Church of England Measure or some other statutory rule) then the place to look for it is obviously in the particular Act, Measure or rule.

The relationship of canon law to common law (‘immemorial usage and custom’) is more difficult, but not as difficult as some modern ecclesiastical lawyers seem to think.  As Hale says, mediaeval canon law, like statute law, was a written law, taking the form of canons, decrees and decretals, issued by a particular legislator (p.23).  English common law, by contrast, is unwritten customary law. 

Thus canon law can only ever be incorporated into common law if it has inspired a custom or usage recognised by common law.  It is this custom or usage that is the English law, not the canonical legislation that inspired it.

Thus mediaeval canon law is the seed, the post-Reformation custom or practice is the plant that grows from it.  English law is concerned only with the plant, not directly with the seed.  The task of the lawyer or the court, therefore, is to examine the alleged custom or usage, not the mediaeval canonical legislation out of which it grew.

Hale also makes the point that common law will only enforce a custom or usage that it considers reasonable (p.26).  This follows the Submission of the Clergy Act 1533, which provides that pre-Reformation canon law must ‘be not contraryant nor repugnant to the lawes statutes and customes of this realm’ (s.7).  An unreasonable canon law-inspired custom would not satisfy this condition.

How is the ecclesiastical custom or usage to be identified as common law?  In Middleton v Crofts (1736) 26 English Reports 788, Lord Chief Justice Hardwicke suggested that the correct test for the survival of pre-Reformation canon law into English common law is clear recognition by the courts.

Referring to the ecclesiastical courts, he held that ‘a long course of [judicial] precedents would be of great weight … though a few instances would not, because … parties might choose to submit, rather than undergo the expense and clamour of a suit for prohibition’ (p.799).  However, ‘the sanction of a judgment of this [secular] court’ is ‘more material’ still.

Lord Hardwicke anticipated modern confusion by warning against an ‘antiquarian’ approach to ecclesiastical common law.  ‘The history of the ancient councils of this island … furnish very little materials towards fixing the point of law as to the obligations of canons’ (p.790).  The basis of membership of these councils ‘is very uncertain and obscure’.  Moreover if those councils met under the legatine authority of the Pope, rather than the metropolitical authority of the Archbishop, then they were no more than a ‘papal usurpation’, and could have no authority in English law.

Lord Hardwicke therefore concluded that ‘it is safest for judges to proceed upon sure foundations which are

[1] the general nature and fundamental principles of this [English / British] constitution

[2] Acts of Parliament and

[3] the resolution and judicial opinions in our books,

and from these to draw our conclusions’.

In other words, English ecclesiastical law is identified in exactly the same way as English secular law, by studying the relevant statute and case law.

Modern Confusion

The constitutional doctrine that English ecclesiastical law is not canon law is clearly stated, on the highest authority.  Yet ecclesiastical lawyers seem to have remarkable difficulty understanding it.  Despite the clear legal authority to the contrary, ecclesiastical law is often described as if it and canon law were one and the same thing.  Discussion becomes very confused as a result.

Peter Winckworth’s commentary A Verification of the Faculty Jurisdiction (1953 SPCK, London) indicates a failure to heed Lord Hardwicke’s warning against an antiquarian approach to the law. 

Winckworth traces the ‘source’ of the English faculty jurisdiction over churches and churchyards to a constitution or canonical rule promulged by a mediaeval ‘pan-Anglican’ council in 1236.  This apparently forbade rectors to ‘pull down ancient consecrated churches without the consent and licence of the Bishop of the diocese’ (p.2).

The constitution of 1236 may be the earliest extant canonical rule in England that alludes to episcopal jurisdiction over church buildings, but it is hard to accept that it constitutes the legal source of the modern faculty jurisdiction.  It refers only to the destruction of ancient churches.  It does not purport to confer power on the bishop to control all dealings with Church property.

Moreover, Winckworth admits that the faculty jurisdiction as it exists today was not apparent until the mid-18th century, and that 17th century textbooks on ecclesiastical law do not even refer to the faculty jurisdiction (p.13).  If the rule promulged in 1236 really founded the faculty jurisdiction, this gap of half a millennium is hard to explain.

It is argued that Lord Hardwicke’s approach in Middleton v Crofts, based on principle and authority rather than historical curiosity, is to be preferred.  The true ‘source’ of the faculty jurisdiction in English law is a constitutional principle, not a particular rule issued by a mediaeval council.  Church buildings are places of public worship.  Bishops oversee the administration of public worship.  This function of religious oversight brings with it the right to control dealings with church buildings, to ensure that they are being used in accordance with their proper purpose.

This constitutional principle of episcopal oversight is part of English law.  The principle was clearly inherited from mediaeval canon law.  However, the particular rule of 1236 is not part of English law, and never was.  It is merely one manifestation of the canonical principle that English law inherited.

However, Winckworth’s thesis on the faculty jurisdiction is a model of coherence compared with a certain opinion delivered to the House of Bishops in April 2010 by some legal officers of the Church of England.  The opinion is entitled ‘Divorce and Episcopal Appointments: The Legal Position’.   The text may be found on the internet website thinkinganglicans.org, accessed 19th May 2012.

This opinion addressed the question whether being divorced and remarried would be an ‘impediment’ to a priest being ordained (consecrated) as a bishop.  The opinion correctly noted that divorce, in the modern sense of dissolution of marriage, was not possible under mediaeval canon law.  Thus divorce could not have been an impediment to ordination under canon law, since divorce itself was unknown to canon law (para 4). 

However, this fact did not deter the learned authors of the opinion from discussing mediaeval canon law at length.  Having accepted that divorce was unknown to canon law, they identified bigamy as the nearest mediaeval equivalent (para 7).  If a married mediaeval man who had tired of his wife but failed to persuade the Church courts to annul the marriage were to marry again, the second marriage would, of course, be bigamous.  Canon law, unsurprisingly, disapproved of bigamy.

The opinion suggested that ‘the concept of bigamy under pre-Reformation canon law could have had relevance’ to ordination (para 8).  However, it went on to conclude that ‘it would seem very difficult (and probably impossible) to prove that the relevant canons [concerning bigamy] were recognised, continued and acted upon in England after the Reformation’ (para 13).

The speculation about bigamy as a canonical impediment to ordination is a complete confusion, for the very reason identified in the opinion.  The subject of the opinion was divorce, not bigamy, and the possibility of divorce in the modern sense was not recognised by mediaeval canon law.

However, the cause of the confusion was the failure to heed the constitutional doctrine stated by Hale and confirmed by Millis.  The opinion presumes that mediaeval canon law must be part of English law unless there is clear authority that it is not.  Hale and Millis make clear that the contrary presumption applies.  Mediaeval canon law is not part of English law, and never was, unless it has clearly been incorporated into English law by statute or case law.

As the opinion recognised, the appointment of bishops is governed by statute law, the Appointment of Bishops Act 1533.  It also engages the royal prerogative.  The Submission of the Clergy Act, quoted earlier, made clear that no canon law was acceptable if it was contrary to statute law, or was ‘to the damage or hurte’ of the royal prerogative (s.7). 

The Appointment of Bishops Act and the case law on the confirmation of a bishop’s election state the Crown’s right to choose bishops in the clearest terms.  Any mediaeval ‘impediment’ to the consecration of a bishop chosen by the Crown would have received very short shrift in a post-Reformation court.

If a divorced and remarried bishop-elect were to deliberately conceal or fail to mention his previous marriage, the case of R v Archbishop of Canterbury (1902) 2 King’s Bench 503 suggests that this might be reason to refuse to confirm the election: ‘If … anything were brought to [the Archbishop’s] notice … that the sovereign had been deceived or misinformed, he might … properly delay confirmation or consecration until the sovereign’s direction could be taken …’ (p.561).

Rather belatedly the opinion of April 2010 recognised that there is no post-Reformation law to forbid the ordination of a bishop who has been divorced, only of a priest or deacon.  The draftsman of the Clergy (Ordination and Miscellaneous Provisions) Measure 1964 sought to prevent divorced and remarried persons from entering the ordained ministry, but failed to consider the possibility of clergy getting divorced and remarried after ordination.  The answer to this anomaly is new legislation to close the loophole, not to search for non-existent mediaeval ‘impediments’.

The antiquarian approach to ecclesiastical law taken by Winckworth and by the authors of the 2010 opinion also raises an issue of public policy.  Church factions, and even Church courts, should not be enabled to dig up obscure mediaeval documents, written in Latin rather than English, and use these to exclude from office candidates of whom they disapprove, or to promote a particular agenda, or to claim legal powers.  Simple justice demands that legal rules should be clearly stated and easily ascertainable, not buried in ancient history.

Law and History

The April 2010 opinion shows that failure to distinguish between canon law and ecclesiastical law leads in turn to a confusion between law and history. 

Thus the search for the answer to a point of ‘ecclesiastical law’ begins in the middle ages, or even earlier, and then muddles through the best part of a millennium to the present day.  This unearths an eclectic mass of legal detritus that has accumulated through the ages, which is then treated prima facie as the current ecclesiastical law.

In St. Peter’s, Draycott (2009) 3 Weekly Law Reports 248, the Court of the Arches referred to ‘the well-known uncertainty about what ecclesiastical law remained in force after the Reformation’ (p.258).  The chancellor who decided St. Mary the Virgin, Oxford (2009) 2 Weekly Law Reports 1381 was also much concerned about this question. 

Of course, there may well be uncertainty about how ecclesiastical law changed (or stayed the same) in the mid-16th century.  There may be similar uncertainty about 16th century criminal law, or 16th century employment law.  However, this is a historical question, not a legal one. 

The function of the court and the lawyer is to establish what the law is now, not what it was hundreds of years ago.  If the current law is unclear, it may be necessary to examine the earlier law which it replaced.  Nevertheless the object of the enquiry is always the current law, not any earlier law that has been repealed (and still less any material that was never part of the law in the first place).

Therefore the question whether a particular rule of mediaeval canon law survives in modern English law is answered by researching the current English law (statute and case law) in the usual way, not by researching mediaeval law or 16th century law.  Ecclesiastical law is part of English law.  Like secular law, it comprises statute law and common law.  It should be studied according to the same method as secular English law.

Perhaps there was considerable uncertainty about the state of the ecclesiastical law in the days when most of it took the form of unwritten common law.  However, during the 19th and 20th centuries, most ecclesiastical law (like most secular law) was codified in statute. 

Modern statute law tends not only to be very detailed and exhaustive, but is also supplemented by ‘quasi-legislation’  (guidelines, codes of practice etc).  This allows very little scope for the survival of  canon law-inspired custom or usage.

It is possible that the practice of the mediaeval or early modern Church may be relevant to the grant or refusal of a faculty in a particular case.  However, such practice is a question of fact, historical evidence, not a question of law.  Historians with the appropriate expertise should be consulted in such a case.  The Diocesan Advisory Committee may be able to assist.

Lyndwood’s Provinciale

Edited by J.V Bullard and H Chalmer Bell, published 1929, Faith Press, London

The Provinciale was compiled by William Lyndwood (also rendered Lindwood, Linwood or Lyndwode) in about 1432.  The date may be of interest, as it was almost exactly 100 years before the break with Rome.  Lyndwood was chaplain to the then Archbishop of Canterbury, Chichele, and compiled the Provinciale at the Archbishop’s suggestion(Bullard and Bell, p.xxxvi).  He was later promoted Bishop of St. David’s.

Lyndwood’s work is the principal source of canon law in England.  It was discussed by the Court of the Arches in Kemp v Wickes (1809) 161 English Reports 1320.  The Provinciale is a compilation of the legatine and provincial constitutions issued in mediaeval England.  Legatine constitutions were ‘laws made in this country under the sanction of the Popes’ legates’.  Provincial constitutions were ‘made in Convocation under several Archbishops’ (p.1325).

In a later case, the same Court explained that Lyndwood is ‘the standard authority on all points of the canon law which may arise in the administration of justice in these courts.  [But] … Lindwood [is not] an authority for the law of the Church at the present day, except so far as that law remains unaltered from his time’ (Mastin v Escott (1841) 163 English Reports 553 at 567).

Chancellor Rupert Bursell criticises Messrs Bullard and Bell’s edition of the Provinciale, on the ground that it ‘omits the all-important glosses’ (Liturgy, Order and the Law (1996) Clarendon Press, Oxford, p.65n).

The Chancellor does not explain why the glosses on the Provinciale are so important.  This raises the suspicion that, although blessed with a keen eye for minute details, he fails to understand the fundamental constitutional principle that mediaeval canon law was never part of English law.  The Lyndwood glosses may well be very important to the study of mediaeval canon law as it was applied in England.  However, that does not explain their importance to English ecclesiastical law.

Bullard and Bell relate that an English translation of the Provinciale was published in 1534, at the instance of King Henry VIII (p.xiv).  This was, of course, the time of the break with Rome.  Henry VIII’s publication also coincided with the Submission of the Clergy Act, which regulated the future application of canon law in England.

The glosses were deliberately omitted from the 1534 translation (p.xxxix).  That was why Bullard and Bell did not include them in their edition of the Provinciale.  The omission of the glosses at the time of the break with Rome suggests that, whatever their importance to mediaeval canon law, they were never part of English law.

However, it must be acknowledged that the Court of the Arches made a specific reference, in Kemp v Wickes, to Lyndwood’s ‘very learned commentary or gloss … which is also of high authority in all [ecclesiastical] courts’ (p.1325).  This may support Bursell’s implied suggestion that the glosses remained an important part of Church law after the Reformation.

So were the Lyndwood glosses part of English law or not?  Henry VIII may have disapproved of them, but the ecclesiastical courts clearly made extensive use of them.

Blackstone gives a clue to the answer.  He observed that

‘The proceedings in the ecclesiastical courts are … regulated according to the practice of the civil and canon laws: or rather, according to a mixture of both, corrected and new-modelled by their own particular usages and the interposition of the courts of common law’ (Commentaries, book 3, p.100).

The practice and procedure (the ‘particular usages’) of the ecclesiastical courts were indeed part of English law, in the sense that they were approved usages or customs.  Legal usage or custom is unwritten law.  The practice and procedure of the ecclesiastical courts formed part of English common law.

Thus it is argued that the Lyndwood glosses were never part of English law per se, but they did form the basis (or part of the basis) of the practice and procedure of the ecclesiastical courts.  It is the practice and procedure, the unwritten usage or custom, and not the mediaeval glosses which inspired it, that is the English law.

Although not part of English law, the Lyndwood glosses are no doubt important to the study of the history of the English ecclesiastical courts.  However, that is history, not law.

The Provinciale itself may only be of historical interest today.  The jurisdiction of the ecclesiastical courts was all but abolished in the 19th century.  The intellectual basis of that jurisdiction (the legal community at Doctors’ Commons) was also dissolved then.  The little jurisdiction that still remains to the ecclesiastical courts is now regulated almost entirely by modern statute law.  The Faculty Jurisdiction Rules 2000 provide that any anomalies in faculty procedure should be resolved by reference to the procedural rules of the secular courts (Article 34).  It is hard to see how this leaves any scope at all for mediaeval law and commentary to influence the practice and procedure of modern Church courts.