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Ecclesiastical law

Brexit: The High Court fills a Legislative Lacuna

The intention of Parliament … is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the [statutory] language used (Lord Nicholls of Birkenhead)

‘it is inappropriate for the courts to trespass further than parliamentary intention by … filling … a lacuna under the guise of public policy’ (Mr Justice David Steel)*

The famous Brexit case is formally cited as R v Secretary of State for Exiting the European Union on the application of Miller and Another (2016) EWHC 2768 Administrative Court.  It concerns the British exit (or Br-exit for short) from the European Union (‘the EU’).

What exactly is the EU?  The EU is constituted by a number of treaties (i.e contracts) made between the member states.  Joining the EU therefore means acceding to, becoming a party to, the EU treaties.  By the same token, leaving the EU means withdrawing from, ceasing to be party to, those treaties.

The issue raised by the Brexit case concerns ‘whether, as a matter of the constitutional law of the United Kingdom [not EU law], the Crown … is entitled to use its prerogative powers to give notice … for the United Kingdom to cease to be a member of the European Union’ (para 4).  Can the Crown withdraw the UK from the EU treaties unilaterally under the Royal Prerogative, or does it require the authority of Parliament to do this?

The High Court (not the usual single judge but 3 of the most senior judges in England, assisted by no fewer than 24 barristers) concluded unanimously that the Crown does not have such unilateral power.  The consent of Parliament is therefore required.

The decision has been the subject of fierce but legally inarticulate criticism.  Few constitutional lawyers have opposed it.  The Supreme Court will shortly hear an appeal, which it is widely expected to dismiss.

It is well settled that the Crown, not Parliament, negotiates treaties with other countries on behalf of the UK.  The High Court acknowledged that ‘the conduct of international relations is a matter for the Crown in the exercise of its prerogative powers’ (para 89).  Withdrawal from the EU treaties obviously engages international relations between the UK and the other members of the EU.  So why should this matter be treated any differently from other international business?

The High Court’s answer was that parliamentary approval is required because of the effect of withdrawal on UK domestic law.  ‘It is precisely because … the conduct of international relations [normally] has no effect in domestic law that the courts accept that this is a field of action left to the Crown …’ (para 89).

The European Communities Act 1972 (‘the ECA’)

The United Kingdom joined the EU on 1st January 1973, after Parliament had passed the European Communities Act 1972 (‘the ECA’).  For all its constitutional significance the ECA is a very short piece of legislation, with just 12 sections as originally enacted.  (This brevity was deliberate, to facilitate the Bill’s controversial passage through Parliament and discourage amendments.)

Why was the ECA needed in the first place?  The High Court explained that

‘by reason of the limits on its prerogative powers … the Crown could not have ratified the accession of the UK to the European Communities under the [EU] treaties … unless Parliament had enacted legislation.  Legislation … was needed to give effect to EU law in [UK] domestic law … as was required by those [EU] treaties …

‘… If this legislation [i.e the ECA] had not first been put in place, ratification of the treaties by the Crown would have immediately have resulted in the UK being in breach of its obligations under them, by reason of the absence of provisions for direct effect of EU law in domestic law’ (paras 41 and 42).

This suggests that the ECA was passed because the Royal Prerogative was in need of legislative support in order to ratify the EU treaties properly in accordance with international law.  As we shall see, the Court’s conclusion on the Brexit case is arguably inconsistent with this account, its own explanation for the ECA.

S.2(1) of the ECA provides that ‘rights … created by or arising … under the [EU] treaties … are without further enactment to be given legal effect … in the United Kingdom [and] shall be recognised and available in law, and be enforced … and followed accordingly’.  It further provides that ‘the expression enforceable Community right … shall be read as referring to [these rights]’.

The effect of s.2(1) is therefore that EU-inspired rights, which are enjoyed today by millions of people, are incorporated into UK domestic law.  Leaving the EU will not per se repeal the ECA.  (Repeal will undoubtedly require legislation.)  However, Brexit will affect the legal rights to which the ECA gave effect.  The High Court suggested that ‘virtually everyone in the United Kingdom or with British citizenship will … have their legal rights affected if notice [of withdrawal] is given’ (para 7).

Some EU-inspired rights, such as those relating to employment, could continue in domestic law even if the UK left the EU (para 58).  Other rights (eg freedom of movement and trade within EU countries) could continue only with the agreement of the remaining EU members (para 59).  Some rights (eg the right to stand for election to the European Parliament) would be lost completely (para 61).

Thus the Brexit case exposes a tension between 2 constitutional principles

(1) the Royal Prerogative to make, and withdraw from, international treaties and

(2) Parliamentary supremacy over domestic law.

Constitutional principle asserts that, while dealings with other countries are indeed a matter for the Royal Prerogative, the Prerogative cannot be used to alter domestic law.  Withdrawal from the EU will alter domestic law because of s.2(1), even though it will not repeal the ECA.  This means that constitutional principle (2) trumps (1) if there is a conflict between them.

However, the status of the EU-inspired rights in domestic law depends on the ECA.  The ECA is an Act of Parliament, not a constitutional principle.  Absent the ECA the EU rights would have no status at all in UK law.  The Brexit case therefore turns on the question of what Parliament intended by legislating as it did.  It does not turn on constitutional principle per se.  The High Court acknowledged that its decision must depend on ‘What Parliament intended by legislating in the [ECA]’ (para 82).

The answer to that question, however, was loaded with a presumption that Parliament intended to legislate in accordance with the constitutional principles identified by the Court.  ‘Where background constitutional principles are strong, there is a presumption that Parliament intended to legislate in conformity with them’ (para 82).

All presumptions are rebuttable, of course.  (2) will not trump (1) if ‘it [can] be inferred that … Parliament … intended … to produce effects at variance with [constitutional principle]’ (para 82), i.e if it can be inferred that Parliament intended, when it passed the ECA, that the Royal Prerogative could be exercised even though this would affect the s.2(1) rights.

The Court therefore reviewed the text of the ECA.  Not just s.2(1), but s.2(2), and s.1 and s.3.  Also the long title of the Act ‘to make provision in connection with the enlargement of the European Communities to include the United Kingdom’.  Also the heading of s.2 ‘General Interpretation of Treaties’ (para 93).

Having done this, the Court held that it is ‘clear that Parliament intended … to introduce EU law into domestic law … in such a way that this could not be undone by the exercise of Crown prerogative power’ (para 92).

The Intention of Parliament

Thus the Court’s conclusion was that Parliament had a twofold intention when it passed the ECA:

(1) to give effect to the EU treaties by introducing the treaty rights into domestic law (obvious) and

(2) to ensure that those rights could not be ‘undone’ by Royal Prerogative in the future.

Conclusion (2) above is therefore the essential reason, the ratio decidendi, for the High Court’s decision on the Brexit case.  Not constitutional principle per se, but the intention of Parliament deduced from the text of the ECA, albeit subject to a presumption that that intention will accord with constitutional principle.

It is argued that the High Court’s conclusion (2) was wrong and that its decision on the case was therefore wrong also.

The obvious difficulty with conclusion (2) is that the ECA says nothing about leaving the EU.  It is concerned only with joining the EU.  It regulates UK membership of the EU while that membership continues.  However, it makes no provision for the cessation of UK membership.

As Lord Nicholls indicated (in the dictum quoted above) the intention of Parliament depends on the language used in the statute.  The High Court did pay close attention to the language of the ECA, but this exercise merely demonstrates that the ECA simply does not address the issue raised by the Brexit case.

This means that, in reaching conclusion (2), the High Court went beyond the language of the ECA.  It imputed to Parliament an intention that Parliament did not have.  It effectively implied an unwritten provision into the ECA that Brexit requires the authority of Parliament.

If the ECA did contain a ‘Brexit clause’ that provided for, or even referred to, the possibility of EU withdrawal, then the High Court would indeed be right to interpret this provision or reference conformably with ‘background constitutional principles’.  But, as it is, there is no such provision or reference.

Perhaps the ECA ought to have included a Brexit clause, to regulate any future withdrawal from the EU.  The absence of such a provision in the ECA is arguably anomalous, a lacuna (i.e a gap or loophole).  But the Court’s function of giving effect to the intention of Parliament does not extend to filling in legislative lacunae on Parliament’s behalf.  That is a matter for Parliament itself.

Parliament has now had the best part of half a century to assert its supremacy by amending the ECA so as to include a Brexit clause.  It is still not too late for it to do so.  (And presumably it will do so if the appeal to the Supreme Court fails.)  But deciding whether or not to amend the ECA is none of the High Court’s business.

Thus it could be argued that, by presuming to fill the lacuna in the ECA concerning Brexit, the High Court was itself guilty of infringing the constitutional principle of parliamentary supremacy.

The High Court stressed the implausibility of Brexit by Royal Prerogative alone.  If an Act of Parliament gives effect to important legal rights then surely any interference with those rights must require another Act of Parliament?  ‘Parliament having taken the major step of switching on the direct effect of EU law in the national legal systems … it is not plausible to suppose that it intended that the Crown should be able by its own unilateral action … to switch it off again’ (para 87).

Yet there is no implausibility if we consider the historical context of the ECA.  In the early 1970s, as today, the Crown was represented by a Conservative government with a slender majority in Parliament.  The Bill that became the ECA was only passed in the face of determined opposition from within the government’s own party as well as from the official opposition.  Hence its brevity.  (History repeated itself two decades later, when Parliament passed the European Communities (Amendment) Act 1993, which concerned the Treaty of Maastricht.)

The political situation in the early 1970s was therefore the exact opposite of what it is in the current Brexit case.  A strongly pro-EU government was striving, from a distinctly weak position, to persuade a sceptical legislature to join the EU.  When viewed in this context, it is not surprising that the ECA fails to address the possibility that the government might one day seek to withdraw from the EU against the wishes of the legislature.

The High Court’s own account of the EU accession (paras 41 and 42, quoted earlier) suggests that the purpose of the ECA, i.e the intention of Parliament, was to strengthen the Royal Prerogative, not to limit or exclude it.  It could even be argued that Parliament’s intention in passing the ECA concerned international law, not domestic law at all.  Parliament intended to empower the Crown to ratify the EU treaties effectively, hence to ensure UK compliance with international law.  The introduction of EU law into UK domestic law was therefore merely incidental upon that ratification.

* Lord Nicholls’ dictum is taken from the case of R v Secretary of State for the Environment ex parte Spath Holme Ltd (2001) 2 Appeal Cases 349 at p.395.  That of David Steel J is from Hashwani v Jivraj (2010) 1 All England Reports 303 at p.317.

Holy Communion and the Constitution of the Church in Wales

‘And there shall none be admitted to the Holy Communion, until such time as he be confirmed, or be ready and desirous to be confirmed’ (Book of Common Prayer 1662, rubric)

The bishops of the Church in Wales have just issued a radical Pastoral Letter concerning admission to Holy Communion (September 2016, accessed on the Diocese of St. Davids website on 17th September).  This announces that the bishops ‘are giving permission for all those who are baptised … to receive Holy Communion’.  Confirmation, and even readiness for confirmation, will no longer be required.  As the Pastoral Letter says, this decision means that ‘even the youngest of children [will] be entitled to receive Holy Communion’.

The Pastoral Letter asserts that baptism is the only ‘gateway’ to the Eucharist, so ‘no [further] barrier should be erected to prevent all the baptised from making their communion …’.  Removing the ‘barrier’ of confirmation will ‘readopt the practice of the Early Church with respect to admission to Holy Communion’.

It is not for this blog to comment on the theological merits of the bishops’ decision.  We question only the legal authority for the decision.

The Pastoral Letter says that the bishops have ‘taken [legal] advice … and have been given the assurance that such a step does not require any change in the present Canon Law or Constitution of the Church in Wales’.

This is surprising.  A major and radical change is being made to the administration of the Church’s principal act of worship.  Surely this must require some amendment of the Church’s Constitution?  And what about the 1662 rubric, quoted above?

In the Church of England, Canon B15A(1) provides that ‘There shall be admitted to the Holy Communion … baptised persons who are communicant members of other Churches … and who are in good standing in their own Church’, as well as those referred to in the 1662 rubric.  The intention is that practising members of non-conformist Churches, which lack episcopal structure and confirmation, can still receive the Anglican Sacrament.  Canon B15A was promulged under the Admission to Holy Communion Measure 1972.

That is the English law.  The Church in Wales was constitutionally separated from the Church of England in 1920, as a result of Disestablishment.  Since then it has been governed, as the Pastoral Letter indicates, by its own Constitution.

The Constitution does not seem to contain an equivalent of Canon B15A.  It incorporates a number of ecumenical Declarations of ‘intercommunion’, or ‘full communion’, according to which ‘Each Communion agrees to admit members of the other Communion to participate in the Sacraments’ (September 1966), but such Declarations seem to be restricted to overseas Churches which possess episcopal structures (e.g the Spanish Reformed Episcopal Church).  They do not extend to local non-conformists.

However, the Church in Wales Prayer Book 1984 makes a critical amendment of the 1662 rubric:

‘Except with the permission of the Bishop, no one shall receive Holy Communion until he is confirmed, or is ready and desirous to be confirmed.’

The permission of the Bishop.  In the Pastoral Letter, the bishops are jointly giving a general permission to baptised but unconfirmed persons to receive Holy Communion.  The 1984 rubric makes clear that bishops already have a constitutional power to permit unconfirmed persons to be admitted to the Sacrament.  So maybe the legal advice referred to in the Pastoral Letter is correct, and the Constitution does not require amendment after all.

However, it is suggested that there are constitutional difficulties with the Pastoral Letter, whatever its good intentions, as follows:

(1) On its wording, the 1984 rubric indicates that confirmation remains the general rule for receiving Holy Communion.  The Bishop is empowered to dispense from the general rule, i.e allow exceptions in particular cases, but that is all.  He cannot abolish the general rule altogether.  Yet that is exactly what the Pastoral Letter is seeking to do, abolish the general rule of confirmation.  This arguably exceeds, or at least misuses, the bishops’ power, which is merely to permit exceptions.

(2) Canon B15A gives practising non-conformists the legal right to receive Holy Communion.  The 1984 rubric, by contrast, does not confer any legal right on an unconfirmed person.  It provides only for the possibility of permission from the Bishop.  The grant of permission is a matter for the Bishop’s discretion.

The effect of the Pastoral Letter is that any person wishing to receive Holy Communion in future must have either

(1) episcopal confirmation or

(2) episcopal permission under the Pastoral Letter.

Yet there is an important difference between (1) and (2).  Confirmation founds a right to Holy Communion, episcopal permission merely grants a favour.  Confirmation cannot be withdrawn, but permission can be.  If the bishops can grant permission at their own discretion, they can also withdraw it at their discretion.  The ‘barrier’ of confirmation has been lowered for now, but it could be raised again just as easily.  The Pastoral Letter is arbitrary as well as permissive.

It is also doubtful that a mere permission, unsupported by a constitutional right or duty, is sufficient to bind the clergy.  A vicar who disagrees with the Pastoral Letter could not be compelled to give Holy Communion to unconfirmed persons.  Hence different parishes might adopt different policies on the matter.

In short, the constitutional position of unconfirmed communicants will be different, and inferior, to that of confirmed communicants.

Perhaps this will not matter in practice, if the bishops’ decision proves uncontroversial.  However, it is arguable that

(1) the importance of the substantive issue and

(2) the constitutional difficulties discussed here

both demand that admission to Holy Communion be regulated by the Constitution of the Church in Wales, and not merely by Pastoral Letter.

Unprecedented Confusion: A Tribute to Chancellor Bursell

Re Sam Tai Chan (2016) Durham Consistory Court, Chancellor Bursell QC

The erudite and informative Law and Religion UK blog (to which this blog is ever indebted for both information and inspiration) has helpfully drawn attention to this recent faculty case.  The judgment appears on the website of the Ecclesiastical Law Association (accessed 12th September 2016).

The Worshipful Chancellor Bursell QC’s singular contribution to the public understanding of ecclesiastical law has been discussed in other posts (e.g ‘The Rubrics of the Book of Common Prayer’, and ‘Liturgy and the Faculty Jurisdiction’, filed under category ‘Liturgy and Law’).  This case is another egregious example of it.

The Chancellor permitted a Chinese lady to exhume the body of her late husband for reburial elsewhere.  She, at least, has reason to be grateful to him, though other less fortunate petitioners for exhumation may not have.

When deciding exhumation cases, consistory courts have for many years followed guidance given by the Court of the Arches in the case of Blagdon Cemetery (2002) 4 All England Reports 482, without any apparent difficulty or controversy.  The guidance was given because guidance given by the Chancery Court in the earlier case of Christ Church, Alsager (1998) 3 Weekly Law Reports 1394 was considered unsatisfactory.

The Chancery Court is the Archbishop of York‘s provincial court (Ecclesiastical Jurisdiction Measure 1963, s.1(2)(a)).  It is therefore the principal court of the northern province, the Province of York.  The Durham Consistory Court, over which Chancellor Bursell presides, is also in the northern province.  The Court of the Arches, of course, is in the Province of Canterbury, the southern province.

It was for this reason that the Worshipful Chancellor found it necessary to disturb the tranquil operation of the post-Blagdon faculty jurisdiction.  He acknowledged that his intervention might prove ‘inconvenient’ (cf para 12).  But the exhumation case raised ‘the question … as to how rules of precedent apply within the two provinces’ (para 8).

After a lengthy discussion of the subject of judicial precedent in the ecclesiastical courts, he concluded that ‘in so far as the northern province (sic) the Alsager test [i.e the guidance given by the Chancery Court in the Alsager case] still prevails’ (para 22).  Canterbury and York are separate provinces, and they remain separate ecclesiastical jurisdictions.  The Court of the Arches has no superiority over the Chancery Court.  This means that northern consistory courts are not ‘bound’ by the Blagdon guidance, only southern ones.  On the contrary, the northern courts are bound to follow the Alsager guidance.

The Chancellor modestly forbore to mention that he was himself a member of the Chancery Court that decided Alsager, and was therefore a co-author of the unsatisfactory guidance.  He seemed to resent the Court of the Arches’ criticism of the guidance (cf para 22)  (Which is understandable, of course).  He also had a dig at some fellow northern chancellors who meekly followed the Blagdon guidance instead of adhering to the Northern Precedent (paras 13 and 14).

It is argued that the Chancellor misunderstood the doctrine of judicial precedent.  A precedent is what the court decides, not what it says, in the particular case.  Stare decisis, not stare dictis.

What, exactly, did the Court of the Arches decide in Blagdon?  The Court granted an exhumation faculty because the consistory court, which had refused exhumation, ‘did not address this [case] specifically in terms of the bringing together of parents and child in a family grave … the exercise of the [consistory court’s] discretion was flawed in so far as it was based on an erroneous evaluation of the facts in this respect, and … in the way [it] treated the lapse of time as determinative’ (para 39).

The consistory court in Blagdon had refused exhumation because it was following, or trying to follow, the Alsager guidance.  The guidance had confused the chancellor and led him into error.  The Court of the Arches therefore issued its own guidance.

Thus the only discernible ‘precedents’ in Blagdon are that

(1) a long lapse of time between a burial and an exhumation request should not be determinative of an exhumation petition, and

(2) a discretionary decision should be set aside if based on an erroneous evaluation of facts.

The guidance given in Blagdon had nothing to do with the Court’s decision on the particular case.  The decision was merely the occasion for issuing the guidance.  The guidance was issued to assist consistory courts to avoid erroneous decisions, and hence avoid the need for future appeals.

Thus the Blagdon guidance did not engage the doctrine of judicial precedent.  The guidance is just that – guidance.  It does not ‘bind’ the consistory courts of either province.  It merely seeks to assist them to avoid errors and appeals.  Guidance is not binding precedent.

Chancellor Bursell was therefore not obliged to follow the Blagdon guidance, if he did not want to.  (Whether he was wise not to do so is quite another matter, of course.)  He was free to follow his own guidance in Alsager.  Indeed a chancellor in the southern province could choose to follow the Alsager guidance and ignore the Blagdon guidance.  Or a chancellor could choose to ignore both.

Bursell’s judgment reveals a second misunderstanding about precedent.  The doctrine of judicial precedent does not apply to the grant or refusal of faculties at all, because this is not a judicial function, even though it is exercised by courts and judges.  The grant or refusal of faculties (which are licences or permissions) is an administrative or pastoral function, not a judicial one.  It is an administrative discretion.  (See post ‘Doing Justice to Faculties’, filed below).  Administrative discretion should be exercised fairly and consistently.  Clear guidance will assist this.

It is true that Bursell is far from being alone in these confusions.  The doctrine of judicial precedent is widely misunderstood.  Court judgments are often read and interpreted as if they were legislation.  And ecclesiastical judges seem unable to grasp that the faculty jurisdiction is administrative, not judicial (just as they cannot grasp that ecclesiastical courts are governed by English law and not ‘canon law’).

However, Bursell’s judgment is of poor quality, even apart from its basic confusions.  It strongly suggests that Bursell used the case merely as a convenient peg on which to hang his flawed thesis on judicial precedent.  The facts of the case and the reasons for the granting the faculty are not adequately stated.

The Chinese lady’s husband died in 1978, but the Chancellor did not require an explanation of why exhumation was not sought until nearly 40 years later.  Lapse of time may not be determinative of an exhumation case, but it is still relevant to the case.  The lady sought exhumation because the original burial was ‘a mistake by virtue of mis-information’ (para 5), but the mistake and the mis-information are not described.

Moreover, the Chancellor did not grant the faculty on the basis of a mistake, but because ‘the different ethnic approach to burial within the Chinese Christian Church provides a good and proper reason for exhumation’ (para 27), but again this ‘ethnic approach’ is not described.  Yet non-Chinese Christians whose petitions for exhumation are refused might be interested to know what it is.

Cathedral Governance: A Constitutional Monstrosity

Kathleen Edwards, The English Secular Cathedrals in the Middle Ages (Manchester University Press, 2nd edition 1967)

This is a most helpful commentary on the confused subject of cathedral governance.  It explains the cause of the confusion, and also demonstrates how little the subject has changed since the middle ages.

The constitution of a cathedral church ought to be a simple thing.  Everyone knows that a cathedral is so called because it contains the cathedra, the official seat of the bishop.  The bishop’s relationship to the cathedral is analogous to that of an incumbent to a parish church.  The bishop is the incumbent of the diocese.  The cathedral is the bishop’s church, the church from which he officiates as bishop.  It is therefore the parish church, or ‘mother church’, of the whole diocese.  The proper function of any other cathedral clergy is to assist the bishop with his official duties, just as the curate assists the vicar.

But of course the constitution of an English cathedral is not nearly so simple.  Edwards relates that ‘the [mediaeval] bishop was more and more drawn away from his cathedral city, both on affairs of state and through … looking after a large diocese.  During his long absences there began to develop some sort of home government among the cathedral clergy’ (p.98).

Thus the cathedral chapter obtained a degree of autonomy from the bishop.  The absent bishop’s place at the head of the chapter was taken by the dean (cf.p.137).

Edwards quotes a graphic and prescient early warning against this separation of bishop and chapter, dating from 1313: ‘the bishop and the chapter … make one body, of which body the bishop is the head and the chapter are the members.  Therefore to argue that the dean is another head is to argue two heads in one body, which is like a monster, and prejudicial to the bishop’ (quoted, p.97).  Needless to say, this powerful argument was not accepted at the time, or subsequently.

However, the mediaeval separation of bishop and chapter makes the point that the bishop’s position is not precisely analogous to that of a parochial incumbent.  The bishop has a power of governance which incumbents do not share.  He is the principal ordinary of the diocese, and also has some responsibility for secular governance, through membership of the House of Lords (canon C18(2) and (8)).

In the old days, such responsibilities necessitated lengthy absences from the cathedral, but the cathedral still had to function without the bishop.  So perhaps the chapter had to have some autonomy then.  Of course, modern transport and communications should make it possible for the bishop to govern both the diocese and the secular state without prolonged absence from the cathedral.  (And bishops usually live right next door to their cathedrals.)  However, these improvements have not, as yet, led to the constitutional reunion of bishop and chapter.

The cathedra is always situated in the choir area of the cathedral.  It is generally an ornate and imposing structure, as befits the ‘principal seat and dignity in the cathedral’ (Cathedrals Measure 1999, s.6(1)).  It is often regally described as the bishop’s throne, an allusion to the power of governance.  However, Edwards points out that cathedra also means a professorial teaching chair (p.177).  Thus the cathedra symbolises not only the bishop’s governance, but also his pastoral function of teaching and guiding.

Moreover, the bishop did not exercise the power of governance in the choir.  The choir was a place of worship, where the Divine office was celebrated.  Governance was done in the chapter house.  (The consistory court would meet in the chapter house.)

The separation of bishop and chapter did not affect the bishop’s liturgical position in the choir.  The bishop continued to enjoy an undisputed precedence at all services at which he was present, and to exercise his pastoral ministry of preaching, ordaining and confirming.

However, the chapter house, as the seat of governance, became the subject of competing claims by the bishop and the chapter.  These claims were settled by the constitution of the particular cathedral.

In the middle ages, the chapter had two functions:

(1) governing body of the cathedral (as it still is) and

(2) bishop’s council, which he consulted about the governance of the diocese.

In other words, the original function of the chapter was to assist the bishop’s governance of both the cathedral and the diocese.

Cathedral constitutions could vary widely.  At Chartres Cathedral, apparently, ‘the bishop was not allowed to enter the chapter house on any pretext’ (p.106).  York Minster ‘denied to its bishop all statutory right to sit in chapter’.  However, most cathedral constitutions gave their bishop some say in the governance of his cathedral.

The competing claims of bishop and chapter were generally resolved as follows:

(1) the bishop had no right to attend ordinary meetings of the chapter, because he was not a member of the chapter

(2) however, the bishop could attend chapter meetings on a visitation, i.e an inquiry into the governance of the cathedral, if he had a constitutional right of visitation in the first place.  Bishops generally did have the right to inquire into the governance of their cathedrals, but the right might be limited in various ways, e.g to particular times or occasions.

(3) the bishop could also convene and preside over the chapter qua bishop’s council, in order to consult it about the governance of the diocese, rather than the cathedral.

Today, of course, the cathedral chapter has no responsibility for the governance of the diocese.  The bishop’s council is now a committee of the diocesan synod, which is completely different from the chapter (Synodical Government Measure 1969, schedule 3.28).

Thus the constitutional separation of bishop and chapter eventually resulted in the constitutional separation of the cathedral from the rest of the diocese.  Yet this separation is hardly consistent with the cathedral’s role as the ‘mother church’ of the diocese.

Nothing illustrates the confused state of cathedral governance so starkly as the position of archdeacons therein.  The function of archdeacons is to assist the bishop’s governance of the diocese within their respective archdeaconries (canon C22(2) and (4)).  But archdeacons, qua archdeacons, have no responsibility for the cathedral.

Edwards notes that ‘The place of archdeacons in secular cathedrals in the middle ages was peculiar … their chief work was in their archdeaconries outside the cathedral precincts’ (p.243).  She suggests that ‘in most mediaeval cathedral churches archdeacons had come to be regarded as the bishop’s official guests, to be treated with the honour due to guests’ (p.249).

Yet archdeacons can be ex officio members of the chapter, even though the bishop, whose diocesan governance they assist and whose church the cathedral is, cannot.  The Cathedrals Measure 1999 further provides that archdeacons, and suffragan bishops too, must be ex officio members of the college of canons established by the Measure for every cathedral (s.5(2)).  But the diocesan bishop is still excluded from ex officio membership of the college.  Not monstrous, perhaps, but all rather absurd.

The Cathedrals Measure 1999, and the bishop’s status as visitor of the cathedral, are discussed in separate posts, filed below.

Baptism: Sin, Sacrament, Sacrilege and Salvation

‘Baptism, where it may be had, is necessary to salvation’ (Church in Wales Prayer Book 1984, rubric)

Sin

Protestantism started from a deep consciousness of sin.  Of course, human beings commit grave actual sins, but the problem is worse than that.  The whole human race, the human condition per se, is innately sinful.  It suffers from original sin, also called birth sin.  Article 9 sternly teaches that ‘in every person born into this world, it [birth sin] deserveth God’s wrath and damnation’, even though a new-born baby is incapable of actual sin.

The remedy for this seemingly hopeless condition is faith, faith in the redeeming love of God.  Article 11 is reassuring: ‘that we are justified by faith only (sola fide) is a most wholesome doctrine, and very full of comfort …’.

Yet the comfortable doctrine created a difficulty.  If human beings are saved by faith alone, then baptism and the other sacraments are prima facie superfluous.

Article 27 seeks to reconcile baptism with justification sola fide.  It suggests that baptism is to some extent dependent on the faith of the recipient: ‘they that receive baptism rightly are grafted into the Church …’.  Baptism certifies the faith of the believer: ‘the promises of forgiveness of sin, and of our adoption to be the sons of God … are visibly signed and sealed; faith is confirmed and grace increased by virtue of prayer‘.

This may suggest that baptism is for adults only.  It should only be administered when the candidate is of sufficient age and understanding to make a personal act of faith.  However, Article 27 affirms that ‘The baptism of children is … to be retained … as most agreeable with the institution of Christ’.  From its first publication in 1549 until 1662, the Book of Common Prayer made no provision for the baptism of adults, only infants.  (Ronald Knox, a Catholic convert, once scoffed that ‘Quakers and Baptists are the only truly logical Protestants’.)

Whatever their ambivalence about baptism, the 39 Articles are unequivocal in their condemnation of relativism: ‘They … are to be had accursed that presume to say, that every man shall be saved by the law or sect which he professeth … For holy Scripture doth set out … only the Name of Jesus Christ, whereby men must be saved’: Article 18.

Sacrament and Sacrilege

The rubrics of the Book of Common Prayer lay down 2 rules about baptism:

(1) it must not be repeated and

(2) subject to emergencies, it should be administered in church.

Canon law (i.e Roman Catholic law) is clear that baptism cannot be repeated because it imprints an indelible character on the recipient (Code of Canon Law 1983, canon 845(1), also canon 849).  To attempt to repeat a valid baptism is sacrilegious, because it denies the indelible character of the original baptism.

However, conditional baptism is allowed if there is a ‘prudent doubt’ about the validity of an earlier baptism (canon 845(2)).

The rubrics follow Catholic doctrine in providing that a child baptised privately ‘is lawfully and sufficiently baptised, and ought not to be baptised again in the church’.  The priest had to check that the child was indeed baptised: ‘if they that bring the infant to church do make such uncertain answers to the priest’s questions, as that it cannot appear that the child was [validly] baptised’, then the priest must baptise conditionally: ‘If thou art not already baptised, N, I baptise thee etc’.

The public baptism service formerly required the priest to check that the child was not baptised already, before administering the sacrament (rubric).

Baptism may be validly administered by anyone, not just an ordained minister.  As the Court of the Arches pointed out, ‘if lay baptism had been considered as one of the errors of the Romish Church, it would have been corrected [at the Reformation]’ (Kemp v Wickes (1809) 161 English Reports 1320, p.1326).  The Court later affirmed that ‘The law of the Church is beyond all doubt that a child baptised by a layman is validly baptised’ (Mastin v Escott (1841) 163 English Reports 553, p.586).

Home baptism seems to have been widespread until as late as the 19th century.  High infant mortality is one obvious explanation.  In the middle ages, priests were required to warn expectant mothers to ‘have water ready prepared to baptise the child if necessity shall so require’ (Lindwood Provinciale Book 1, Title 11, chapter 2).  However, in the case of Bennett v Bonaker (No.2) (1829) 162 English Reports 1066, the Court of the Arches noted disapprovingly that ‘It has become … a sort of fashion to have … children christened in their houses instead of at church and … too many of the clergy comply with [this] practice …’ (p.1075).

Unofficial baptism is valid in principle, but, as the rubrics indicate, its validity may be doubtful in practice if administered by an unauthorised and uninstructed minister and without reliable witnesses.  It may also be corrupted by superstitious or pagan practices.

Moreover, baptism confers membership of the Church.  The baptised is thereby ‘grafted into the body of Christ’s Church’.  For this reason baptism should be administered publicly, in facie ecclesiae, ‘on Sundays or other Holy Days at or immediately after public worship when the most number of people come together’ (canon B21).  Even after a private baptism, the child ‘shall be brought to the church and there, by the minister, received into the congregation of Christ’s flock’ (canon B22(8)).

Possession of a baptismal font was once regarded as the legal test for determining that a building is a parish church and therefore a place of public, rather than private, worship.  The font is traditionally located by the door, at the opposite end of the building from the altar, to symbolise the sacramental entry into the Church.

Canon F1(2) follows tradition by laying down a general rule that the font ‘shall stand as near to the principal entrance [to the church] as conveniently may be’, though a faculty may permit the location of the font elsewhere in the church.  Canon 81 of 1603 required ‘a font of stone … to be set in the ancient usual places’.

(There is an amusing twist here.  The older ecclesiastical law insisted that the font be made of stone, but also insisted that the altar or ‘communion table’ should not be made of stone.  The modern law allows that the altar may be made of stone, and that the font need not be.)

Ecclesiastical law makes provision for the sanctity of baptism.  Canon F1 provides that the font must be ‘decent’ and have ‘a cover for the keeping clean thereof’.  Moreover, the font must be used exclusively for baptism, ‘and for no other purpose whatsoever’.

The mediaeval Church was not concerned only with cleanliness: ‘The baptising font must be kept close under lock, for fear of witchcrafts‘ (Lindwood Book 3, Title 25, chapter 1).  Water used for emergency baptism ‘[should] for the reverence of baptism either be poured into the fire or  be brought to the church to be poured into the font, and let the vessel be burned or deputed to the church’s use’ (Title 24, chapter 1).

Access to the altar is via the font, but the baptised must still make the journey from the font to the altar.  Canon law holds that baptism is a necessary precondition to valid reception of all other sacraments.  Baptism is the ‘gate’ (ianua) of the sacraments (1983 Code, canon 849).  In the Catholic Church, of course, there are six other sacraments besides baptism, but in the Church of England only one, ‘the Supper of the Lord’ (Article 25).  English law is clear that only the baptised may be admitted to holy communion (cf canon B15A).

However, the legal relationship between baptism and marriage is confused.  The report The Canon Law of the Church of England (1947) proposed a new canon that ‘No minister shall allow matrimony to be celebrated in his church between two persons neither of whom has been baptised: and if … one of [them] has not been baptised … shall refer the matter to the Bishop … [for] his order and direction’ (p.126).  This canon was rejected for fear that it infringed the common law right of unbaptized parishioners to marry in their parish church.

It is argued that this fear was misplaced.  It ignored the font at the entrance to the church.  The common law right originated at a time when marriage was still a sacrament, therefore accessible only by baptism, and when only baptised persons were married in church.  The Prayer Book marriage service clearly assumes that the couple will both be baptised, for it provides that they ‘should receive the holy communion at the time of their marriage, or at the first opportunity after …’.  The Marriage Act 1753 required marriages to be solemnised in the parish church, but excepted Quakers and Jews from this requirement, because they were not baptised.  This implies that church marriage is for baptised persons only.

Moreover, ecclesiastical law (like canon law) formerly denied Christian burial to the unbaptised (cf canon B38(2)).  It is illogical that an unbaptised person should be entitled to a church wedding but denied a church funeral.  (However, the illogicality has been cured.  An unbaptised person may now have a church funeral.)

Salvation

The Prayer Book Catechism seems to affirm the Catholic doctrine that baptism, not just faith, is necessary to salvation.  Baptism makes the recipient ‘an inheritor of the Kingdom of Heaven’.  It brings ‘A death unto sin, and a new birth unto righteousness’.

Private baptism ‘in tyme of necessitie’, i.e if the infant was in danger of death, was retained in the Prayer Book.  This also implies a link between baptism and salvation.  Baptism is considered necessary, even though the dying infant is too young to have committed any actual sin.

The fault-line between justification sola fide and salvation through baptism was exposed in the famous Victorian case of Gorham v Bishop of Exeter (1849-50).  The Rev Mr Gorham apparently doubted that baptism ipso facto imprints an indelible character.  He held that ‘the grace of regeneration [rebirth] does not so necessarily accompany the act of baptism, that regeneration invariably takes place in baptism … [regeneration] may be granted before, in or after baptism … baptism is an effectual sign of grace … but only in such as worthily receive it …’ (Phillimore Ecclesiastical Law, 2nd edition 1895, p.496).

The Bishop refused to institute Mr Gorham to a benefice because of these doubts.  He was supported by the Court of the Arches.  However, the Privy Council controversially overruled them both, and ordered Mr Gorham’s institution.  Its conclusion was that English law does not deny the indelible character of baptism, but does not insist on it either.  There is liberty of belief in the matter.

The Catholic Church does not, of course, hold that faith is irrelevant to baptism.  On the contrary, the recipient of baptism is required to co-operate in the work of salvation.  This is the reason for the promises required at public baptism, to ‘renounce the devil and all his works, … and constantly believe God’s holy Word, and obediently keep His Commandments’.

Canon law therefore makes it a condition of baptism that ‘there be a realistic hope that the infant will be brought up in the Catholic religion: if such a hope is altogether lacking, the baptism is to be deferred (differatur)’ (canon 868(1), avoiding the word ‘refused’).

Modern English law has again followed canon law in emphasising the importance of co-operation with baptism.  In the 20th century, clergy became concerned that baptism was becoming a mere social convention, an occasion to celebrate the baby’s birth and show it off to family and friends, but with no intention of observing the baptismal promises and bringing the child up as a Christian.

Canon B22(3) of the revised Canons of the Church of England therefore requires the minister to instruct parents in their responsibilities.  Canon B23(2) provides that godparents must be ‘persons who will faithfully fulfil their responsibilities both

[1] by their care for the children committed to their charge and

[2] by the example of their own godly living’.

A clergyman is protected from disciplinary action if he refuses or delays baptism from concern that co-operation with the sacrament will not be forthcoming.  The parents may refer the matter to the bishop, who must first consult the clergyman and then ‘give such directions as he thinks fit’ (canon B22(2)).  (This is discussed further in the post ‘Baptism and Godly Living’, which is filed below.)

Modern ecclesiastical law rightly provides for the co-operation of parents and godparents in the child’s baptism, but, like the older law, it assumes that parents will want to have their child baptised in the first place.  The 20th century concern may seem anachronistic now.  The children who were baptised then, whether for social or religious reasons, now decline to have their own children baptised at all.  When congratulating devout elderly churchgoers on the birth of a grandchild, the author of this blog has learned not to make any reference to christening, for fear of the embarrassed silence that often follows.

Parents may decline baptism out of indifference, or outright rejection of religion, but a more insidious reason may be advanced: the children should be free to decide for themselves whether they want to be baptised and go to church, when they are old enough to do so.

Such parents are asserting their right, and maybe their duty, to decline baptism for their child, in order to preserve the child’s right to choose whether or not to be baptised later on.  This sounds plausible because it is in harmony with the prevailing secularist conception of human rights, according to which religious belief and practice are no more than an individual lifestyle choice.

Such a muddle-headed concept of religious freedom is, of course, highly conducive to secularism.  It implies that there is something wrong with infant baptism.  And very few people who are denied baptism as infants are likely to seek it in later life.

If baptism really is necessary to salvation, no loving parent would refuse it and leave the child to make its mind up later.  No more than refuse inoculation against a dangerous disease in the hope that the child will not catch it.  But in a secular, pluralist society, either there is no such thing as salvation, or everybody is saved regardless of faith and baptism.  The Protestant fear of sin and Catholic hope are both lost.

What can ecclesiastical law do if parents do not want to have their children baptised?  In practice, virtually nothing.  We have to admit, of course, that parents cannot and should not be forced to have their children baptised (in the way that they can be forced to send their children to school).

Canon B26(2) exhorts ‘All parents and guardians [to] take care that their children receive [religious] instruction’, but the revised canons do not seem to impose any duty on them to have their children baptised.  Ecclesiastical law formerly required the clergy to ‘often admonish the people that they defer not the baptism of their children …’, but this rubric was removed by the Prayer Book (Further Provisions) Measure 1968, s.3(2).

Though ineffectual in practice, ecclesiastical law may at least inform the confused and secularist-dominated debate about religious freedom:

(1) Baptism, above all, proves that religion is corporate and public, not merely individual and private.  Nobody can baptise himself.  Baptism is administered by the Church and it confers membership of the Church.  It therefore proves that the Church exists.  Though uncertain of its precise effect, English law is clear that baptism is ‘ordained of Christ our Lord in the Gospel’ (Article 25).  If baptism is Divinely ordained, then so is the Church which administers it.  Therefore the Church cannot be reduced to a mere private contract between individuals.

(2) If baptism is ordained of God, if it is God’s Will for everybody, then there cannot be a human right to choose whether or not to be baptised.  Such a right blasphemously subordinates Divine ordination to mere human choice.  It reduces baptism to the level of a political or consumer choice (which party to vote for in the election, which bank to get a loan from).

(3) However, a person does have a right not to be baptised against his will.  The distinction between a right (1) to choose whether or not to be baptised and (2) not to be baptised against one’s will may seem a fine one, even non-existent.  However, it is argued that the distinction is critical, because it brings the human right into alignment with the Divine ordination of baptism.  It is also consistent with the rite of baptism, which assumes the cooperation of the recipient, either personally or vicariously through parents and godparents.

(4) Of course, an infant cannot be baptised against its will.  The Divine ordination of baptism, and the affirmation of Article 27 that infant baptism is ‘most agreeable with the institution of Christ’ make clear baptism is the infant’s right.  It is therefore the duty of parents to give effect to the child’s God-given right to be baptised, not to deny it in favour of a non-existent right to ‘choose’.

The Great Schism 1378-1417: Beyond Canon Law

The Great Schism marked the end of the ‘classical’ canon law period that had begun c.1140 with Gratian’s Decretum.  No originality is claimed for what follows.  It is merely a narrative of the historical facts from a legal perspective, drawing on the commentaries cited at the end.

Avignon

The Holy See made a confident entry into the 14th century.  Pope Boniface VIII (Pope 1294-1303) ‘occasionally dressed up in imperial insignia, boasting that he was emperor no less than pope’ (Kelly).  He uncompromisingly asserted papal supremacy in his famous bull Unam Sanctam (1302): ‘The temporal sword is in the power of Peter … It is absolutely necessary for salvation that every human creature be subject to the Roman Pontiff’.  He proclaimed the first Holy Year of Indulgence in 1300.

However, the Holy See’s political position was always precarious, to an extent that is unthinkable today.  Imagine if the present Pope were taken prisoner by a hostile state, or forced to leave Rome because of public hostility.  Yet such events were occupational hazards for his mediaeval predecessors.  The ink was barely dry on Unam Sanctam when Pope Boniface was imprisoned by the King of France.  He was later rescued, but died a broken man.

The city of Rome was ‘wretchedly unsafe’ on account of faction-fighting between the leading Roman families (Renouard).  Boniface’s successor, Bl Benedict XI (Pope 1303-1304), therefore sought safety outside Rome, but he died after only a few months.  The cardinals then elected Clement V (Pope 1305-1314), a Frenchman who was very much   under the King of France’s influence.  After moving around Provence and Gascony he finally settled at Avignon in 1309.

Avignon was not actually in ‘France’ at this time, in the sense that it did not belong to the French crown, but to the King of Naples (who was formally, and confusingly, entitled ‘King of Sicily‘).  The King of Naples/Sicily was nominally a vassal of the Pope.  Avignon also had the advantages of political stability, a pleasant countryside and climate, and access to the sea.

There were 7 Avignon popes in all.  All were French.  The move to Avignon was intended to be temporary at first, and the French popes all professed a vague desire to return to Rome some day.  The tombs of the Apostles were still at Rome, of course.  A second Holy Year was celebrated in 1350.  However, as Rome became ever more dilapidated and politically unstable for lack of effective papal government, so the prospect of returning there from beautiful Avignon became less and less appealing.

Pope Benedict XII (Pope 1334-1342) began construction of the Palais Vieux at Avignon.  Before then, popes had resided in the local bishop’s palace or in a monastery.  A purpose-built papal palace naturally gave an air of permanence to the ‘Babylonian captivity’ at Avignon.  Benedict’s worldly successor, Clement VI (Pope 1342-1352), built the sumptuous Palais Neuf for himself.

Then Bl Urban VI (Pope 1362-1370) showed serious interest in a return to Rome.  He required bishops to reside in their dioceses, so had to set a personal example.  He also sought reunion with the Greek Church, and could not credibly do this from outside Rome.  In the face of strong opposition from cardinals and curia he entered Rome in 1367 and stayed for 3 years in the Vatican.  (The Lateran palace had become uninhabitable, and no pope lived there again.)  There he received both the Holy Roman Emperor and the Byzantine Emperor.  However, he returned to Avignon just before his death.

The last Avignon pope, Gregory XI (Pope 1370-1378), delayed a permanent return to Rome for many years, but ‘saw the hand of God in the arrival of St Catherine of Siena at Avignon to urge his return’.  Curial opposition had not diminished (‘If only the mountains would move and stop our journey!’ one official prayed), but in 1377 Pope Gregory at last arrived in Rome.

The Disputed Election

After 70 years of papal absence the Eternal City was in a grievous state.  The people of Rome also bitterly resented French control of the papacy.  Such was the anti-French hostility that Gregory XI found it necessary to leave Rome, only a short time after he had arrived there, for Agnani.  He died just a year after his return from Avignon.

The Romans were adamant that the next pope should be ‘a Roman pope, or at least an Italian’.  That was the popular slogan.  In this hostile atmosphere the French cardinals who were to elect Gregory’s successor had good reason to feel uncomfortable, even frightened.  The conclave itself was invaded by the mob.  The cardinals had to pretend that an elderly Roman cardinal had been elected Pope.  Placated, the mob withdrew.

However, the cardinals really did elect a new, and Italian, pope, Urban VI (Pope 1378-1389).  The day after the incursion of the mob, they returned to the conclave to confirm the election.  They also publicised the election to the world, and officiated at the new Pope’s coronation.  For several weeks they assisted him (or tried to) in his official duties.  Only then, several weeks after the election and coronation, did the Great Schism begin.

It began when the French cardinals started to withdraw to Agnani.  There they pronounced the election invalid for duress.  If the election was invalid, this meant that Urban VI was not really Pope, so the Holy See was still vacant.  On this basis, the cardinals purported to elect a new pope.

However, the cardinals’ claim of duress is not supported by the known facts.  Commentators have rejected it: ‘the existing evidence would seem to show decisively that the undoubted pressure of the Roman populace [to elect an Italian pope] was not such as to incapacitate a body of reasonably honest and courageous men’ (Obolensky, p.416).  The cardinals’ conduct towards Urban VI after his election was inconsistent with their claim that they had elected him against their will, under threat from the mob.  Their repudiation of the election came too late to be credible.

The real reason for the cardinals’ desertion of Pope Urban was his appalling treatment of them.  The Holy Father suffered from a ‘great lack of self-control’ (Ullmann, p.45).  His ungovernable rages ‘made his face red and his voice hoarse’.  The cardinals were understandably aggrieved when he ordered them to eat only one course at meals, and worse was to follow.  There is no certain explanation for Urban’s behaviour, but ‘his unexpected elevation seems to have upset the balance of his mind.  He became very unstable, and subjected [the cardinals] to violent abuse and uncontrollable tirades’ (Kelly).  The abuse was physical as well as verbal.  He had one cardinal tortured in his presence, reciting the Divine Office so as to drown the poor man’s screams.

However, the cardinals did not attempt to declare the Holy See vacant on account of the Pope’s insanity, or to claim the power to make such a declaration.  Their desertion of Urban on account of his behaviour may be understandable.  But there were no legal grounds for disputing Urban’s title.  Mad and intolerable he may have been, but he was the Pope.  The cardinals’ action in purporting to elect a new pope was therefore schismatic.

After the French cardinals defected, Pope Urban grew madder and quarrelled with everybody.  Nevertheless, despite lengthy enforced absences from Rome, Urban remained in office till his death.  His successor, Boniface IX (Pope 1389-1404), strengthened papal control of Rome.  The French-led schism never gained a foothold there.

The Avignon Anti-Popes

The schismatic cardinals elected the most distinguished of their number as ‘Clement VII’.  The new anti-pope was actually Swiss, not French, and so could appear to rise above the French-Italian animosity.  He was personally more impressive than ranting, red-faced Pope Urban, but he was an evil man who lacked Urban’s excuse of madness for his crimes.  (When papal legate he had barbarously ordered the massacre of the inhabitants of a rebellious town.)  Most of the Roman curia defected to him.  Unable to enter Rome, ‘Clement’ returned to Avignon.  There he established an efficient administration and a glittering court.

Europe reacted to the Schism on political and national lines.  The Emperor recognised the Roman papacy, as did England.  France and her allies, including Scotland, recognised Avignon, as did Spain.  The Queen of Naples also supported Avignon when she quarrelled with Urban.  However, Italian public opinion, always resentful of any French claim to the papacy, remained consistently hostile to Avignon, whatever the political upheavals in Rome and Italy.

The Schism

Fortunately the Schism was a relatively peaceful, civilised affair.  Unlike the Reformation it did not start any wars or create any martyrs.  Those on the losing side, or losing sides, were treated magnanimously.  St Vincent Ferrer’s long and close association with Avignon (he was the anti-pope’s confessor) did not prevent his fairly rapid canonisation, though he submitted to Rome shortly before his death.

The confusion and disruption caused by rival papacies can be exaggerated.  The religious practice of the Latin Church (Divine Office, sacraments, popular devotions) continued undisturbed.  As the Schism followed existing secular divisions and jurisdictions this meant in practice that the Church within a particular jurisdiction acknowledged the same pope as the local ruler acknowledged.  Thus lesser clergy and laypeople were not much affected by it.  Two great English writers of the period, Geoffrey Chaucer and Mother Julian of Norwich, apparently do not even mention the Schism.

However, religious orders suffered from the Schism.  Unlike the secular Church they were constituted on a supranational basis.  Authority within them was usually centralised in a single superior or general chapter.  The division of the papacy therefore forced the centralised religious orders to divide as well.

The intellectual and political elites of Europe (secular rulers, universities, bishops, even the cardinals and curias of Rome and Avignon themselves) were scandalised by the Schism.  Rival papacies were, of course, incompatible with the God-given unity of the Church.  The Schism also discredited the Holy See’s claim over the Greek Church, and the Christian cause against Islam.

From the outset, therefore, there was strong elite pressure on the rival popes to end the Schism.  Reconciliation was impossible while mad Pope Urban reigned.  His death, and the election of a more suitable successor, undermined the anti-pope’s cause.  French support for Avignon weakened, and was even withdrawn altogether for a time (1399-1403), though it was later restored.

In principle, even the rival popes accepted the imperative of reconciliation.  Candidates for both papacies made solemn promises that, if elected, they would abdicate if this would facilitate reconciliation.  However, the promises were not kept.  The second and last Avignon anti-pope, ‘Benedict XIII’, was notoriously obstinate and has been condemned as ‘the principal cause of prolonging the Schism’ (Renouard, p.76).  For their part, the Roman pontiffs, conscious of their legitimacy, were reluctant to make concessions to Avignon.

Conciliarism

There were 2 proposals for ending the Schism:

(1) the via cessionis, inducing one or both rival popes to abdicate and

(2) the via concilii, superseding the rivals by a General Council (Obolensky, p.417).

Intellectually, the Church was not completely unprepared for the crisis of 1378.  The authority of the General, or Ecumenical, Councils of the Church, and their relationship to the Holy See, were much discussed by mediaeval canonists.

Surprisingly, perhaps, the deposition of the Pope, his involuntary removal from office, was by no means a taboo subject in mediaeval canon law.  There had long been a consensus among canonists that the Pope could be deposed for heresy.  The problem was how.  Canon law was unable to supply a procedure for effecting deposition (Tierney, p.96).

In principle, therefore, the Pope might be deposed for heresy by a General Council, but only the Pope could lawfully convene the Council in the first place.  If someone other than the Pope were to take the initiative and summon a Council, the summons and the Council would be invalid, as would any acts of the Council.  This may suggest that a heretical pope would have to consent to his own deposition.  Then again, if the Pope was a heretic, perhaps he would already, ipso facto, have lost his papal authority and would therefore be unable to depose himself!

The Great Schism created the additional problem of two rival popes.  Only the rightful Pope could summon a Council.  Gratian had anticipated this problem.  His solution was that ‘he alone shall remain in the papal chair whom the consensus universitatis [i.e the whole of Christendom] had elected’ (Ullmann, p.197).  But this ran into the same procedural difficulty that prevented the deposition of a heretical pope.  How could the consensus universitatis be lawfully articulated, so as to make a lawful election?

The inability of both canon law and the rival popes to resolve the Great Schism encouraged more radical thinking about the papacy itself.  (The deeply unattractive personalities of the rivals may also have encouraged this.)  The Schism ‘[made] men think more seriously about the institution [of the Church] … slowly there formed … the conviction that unity must be fought for, whatever the existing law of the Church might say’ (Jacob, p.7).

The intellectual movement known as conciliarism had many different variations.  None went so far as to reject papal authority altogether, as happened at the Reformation.  However, all versions proposed some constitutional limitation of papal authority by a General Council, perhaps through the agency of the College of Cardinals, or secular rulers.  Conciliarism, like canon law, saw the Church as a corporation, or hierarchy of corporations.  Unlike canon law, it held that papal headship was, to a greater or lesser extent, subject to the consent of the whole Church, the fidelium congregatio, as represented in General Councils.

Dissatisfaction with the Pope and the papacy was not new, of course.  Nor was resentment of the papal claim of plenitudo potestatis over the Church.  Conciliarism was not created by the Great Schism.  It had ‘penetrated academic circles many years before 1378’ (Obolensky, p.418).  It had been proposed, in a radical form, by William of Ockham (c.1285-1347) and Marsilius of Padua (1275-1342).

There were 3 practical manifestations of conciliarism in the 15th century:

(1) the Council of Pisa (1409)

(2) the Council of Constance (1414-1417)

(3) the Council of Basle (1431-1449)

Pisa (1409)

Pope Gregory XII (Pope 1406-1415) broke his promise not to appoint new cardinals.  All but three of his original cardinals deserted him and made common cause with some disillusioned Avignon cardinals.  Together they called the Council of Pisa.

This Council was therefore the creature of a second schism in the Roman papacy.  The difference is that this time the cardinals summoned, or purported to summon, a General Council rather than elect an anti-pope.

The Council met, and purported to depose both Pope Gregory and the Avignon anti-pope.  It then elected a new ‘pope’ of its own.  This was the first Council anti-pope, as distinct from the Avignon anti-popes.  When he died soon afterwards the Council elected a second anti-pope, ‘John XXIII’.

Constance

This Council anti-pope was initially a great success, and even entered Rome, something the Avignon anti-popes had never achieved.  However, the tide of politics soon turned against him and he fled to Florence.  The Emperor then forced him to summon a second Council.

The Council of Constance was the most significant manifestation of conciliarism.  It was dominated by Cardinal Francis Zabarella (1360-1417), the most eminent canonist of the day and author of De Schismate, an exposition of conciliarist theory.  Zabarella might have become Pope himself but he died during the Council.

The Council issued two momentous decrees

(1)  Sacrosancta, in which the Council claimed the authority of Christ for itself, and claimed the obedience of all Christians, including the Pope.  However, the Holy See never recognised this decree.

(2) Frequens, which called for Councils to be held at regular intervals.

Constance brought the Great Schism to an end, but the process by which it did so must be clearly understood.  A glib summary has it that the Council was confronted by 3 rival popes.  Nobody could decide who the rightful pope was, so the Council got rid of all 3, and then made a fresh start by electing a new Pope.  This narrative is misleading, because it confuses law and politics.

The Council had been summoned by an anti-pope, and therefore could have no legitimacy.  The Holy See could not recognise it as truly ecumenical.  However, the ageing Pope Gregory XII had at last been converted to the cause of reconciliation.  He therefore resolved the legal difficulty by convening the Council afresh.

The Pope’s action in (re)convening the Council conferred legitimacy on it from that time on.  Hence it is now recognised as the 16th Council of the Church.  Having thus convened the Council, Gregory then abdicated.  He died shortly afterwards.

A unique conclave comprising cardinals and representatives of the Council then elected a new pope.  He took the name Martin V (Pope 1417-1431) because the conclave was celebrated on St. Martin’s Day.  Martin V’s pontificate began exactly 100 years before another Martin inaugurated the Reformation by nailing his 95 theses to the church door at Wittenberg.

As well as receiving Pope Gregory’s abdication, the Council deposed both the Avignon and the Council anti-popes.  The Council anti-pope submitted to Rome.  The Avignon anti-papacy lingered on obscurely for some years after 1417, but the Great Schism had effectively been healed.  Avignon itself acquired a lasting stigma from its unhappy associations, and was never again a papal residence.

Thus the Council of Constance solved a political problem.  Pope Gregory was the rightful Pope but he was incapable of healing the Schism, so he had to go.  The two anti-popes had no legal title, and no political value either, for they too were incapable of healing the Schism.  The Council ended the Schism by overcoming the old Pope’s intransigence, prevailing on him to abdicate, repudiating the two anti-popes and effecting the election of the new Pope.

This was undoubtedly a great political achievement, but it did not change any law.  There were not ‘three popes’ in 1414, or at any other time.  There was only ever one Pope.  Pope Gregory was not deposed.  The Council of Constance started along the via concilii, but it then changed direction and ended on the via cessionis.  It did not create a new source of authority.  Conciliarism as a religious doctrine did not prevail at Constance.  The Holy See survived without renouncing any of its jurisdiction.

A canonist explains that ‘Gregory XII’s fresh convocation and authorisation of the Council were a mere matter of form [but] this form was the price to which he attached his abdication, and it meant … that the [Council] should formally acknowledge him as the lawful Pope, and …. confess that its own authority dated only from that moment, and that all its previous acts … were devoid of all ecumenical character’.

He continues: ‘The [Council’s] recognition of Gregory XII’s legitimacy necessarily includes a similar recognition of [all the post-1378 Roman popes] and the rejection of the [anti-popes]’ (quoted by Pastor, p.201).

Basle (1431-1449)

Although the Holy See had not compromised its claims at Constance, conciliarism had become a powerful political force which could not be ignored.  ‘At this epoch, the idea of a General Council exercised a strange fascination on men’s minds.  It was looked upon as the cure for all the ills of the Church’ (Pastor, p.288).  Martin V therefore reluctantly convened the Council of Basle that had been prescribed by Frequens.

It was at Basle that conciliarism made its final bid for control of the mediaeval Church.  The Council published radical decrees abolishing the papal reservation of benefices (1433) and papal first fruits and annates (1435) (an early target of the English Reformation).

Martin V died shortly after convening the Council, and was succeeded by Eugene IV (Pope 1431-1447).  The new Pope’s position was weak.  He tried to dissolve the Council in 1433 but was forced to rescind the dissolution.  The political situation at Rome was so precarious that he fled to Florence and remained there for 10 years.

However, the Council was becoming discredited by its radicalism and crude political bias (pro-French, anti-Italian).  Pope Eugene gained ascendancy over it by his dialogue with Constantinople.  He held out the dazzling prospect of an end to the Greater Schism, that between the Greek and Latin Churches.  With Greek agreement, he ordered the Council to move from Basle to Ferrara (in 1437), then to Florence (in 1439).  Full of ecumenical enthusiasm for the reunion of Christendom, most of the Council Fathers obeyed the Pope’s command and left for Italy.

Of course, the Council of Ferrara-Florence proved a failure.  Reunion was agreed there, but it was never accepted by the Greek Church.  Constantinople fell to the Turks in 1453.  At the time, however, Ferrara-Florence seemed an outstanding ecumenical success.

The real success of Ferrara-Florence was that it averted a second major schism in the Latin Church.  The few Fathers who refused to leave Basle purported to depose Pope Eugene in 1439, and elected a third Council anti-pope, ‘Felix V’.

However, Eugene defeated this last schism by adroit diplomacy, ensuring support for the Holy See throughout Germany and Italy.  He was assisted Aenea Silvio Piccolimini, the celebrated memoirist and future Pope Pius II, who had originally supported ‘Felix’ and then defected to Rome.  ‘Felix’ himself submitted to Eugene’s successor, Nicholas V.

Legacy

The Council of Constance had a lasting intellectual and cultural influence.  While the Council met ‘Constance was for three years the metropolis of Europe’ (Obolensky, p.420).  It must have been a scintillating experience: ‘The world had never before beheld an assembly at once so numerous and intellectually so brilliant … the opportunities of intercourse between learned and cultivated men, afforded by these Councils, exercised an important influence on general civilization, and especially on the renaissance in literature’ (Pastor, p.256).  Constance ‘inaugurates a new epoch in the history of the search … for manuscripts … the impetus given to the interchange of thoughts … cannot be exaggerated.  The dawn of humanism, north of the Alps, dates from this period’.

This account suggests that, just as classical canon law ended when the Great Schism began, so the Renaissance began when the Schism ended.

Conciliarism addressed questions of authority and government in the Church that canon law had apparently failed to answer.  It may therefore have given birth to modern political science, the systematic study of political power.  It has been hailed admiringly as ‘part of the liberal tradition of Europe’ (Jacob, p.2).

Conciliarism again became fashionable at the Reformation: ‘[conciliarist] ideas, and those ideas alone, form the raison d’etre of the Church of England … federalism in the Church … preserving the unity of the whole while securing the independence of the parts’ (Figgis, p.236).  The 39 Articles give qualified approval to General Councils (Article 21), but warn that Councils are not infallible and can only be held with the permission of the secular authorities.  (The Council of Trent was meeting at the time.)  The English text of the 39 Articles uses the term congregation to describe the Church (Articles 19 and 23), though the Latin text only uses the term coetus once (Article 19) and otherwise sticks to ecclesia.

Yet the reformers did not succeed in making conciliarism work in practice.  There have never been any Protestant ‘ecumenical councils’ comparable to the pre-Reformation councils.  Nor was any ‘federal’ unity achieved.  Instead the Reformation resulted in the very evil that conciliarism had sought to prevent, the fragmentation of Latin Christendom by secular political jurisdiction (now euphemistically described as ‘dispersed authority’).

After initially close contact in the 16th century (when the 39 Articles were written) the Church of England distanced itself from European Protestantism.  The creation of the worldwide Anglican Communion in the 19th century was due to the expansion of the British Empire, nothing to do with mediaeval conciliarism.  Whatever the publicity they attract, modern supranational assemblies such as the Lambeth conferences and primates’ meetings are mere informal contacts with no legal authority.

Mediaeval conciliarism also gave birth to Gallicanism in the French (Catholic) Church.  Jean Gerson (1363-1429), the ‘Father of Gallicanism’, was another luminary at the Council of Constance.  Gallicanism perished in the French Revolution, but conciliarism was recalled nostalgically in the 19th and 20th centuries by those who regretted the ultramontane papalism of the Catholic Church at this time.  The papacy was again considered an obstacle to Christian unity.  Not, as in 1378-1417, because it was weak and divided, but because it was too strong and autocratic.

The second Vatican Council modified modern papalism with its doctrine of the collegiality of the Pope, successor of Peter, and the bishops, successors of the other Apostles.  Pope and bishops together constitute one Apostolic College.  (The Pope who summoned this Council, St John XXIII, took the same name and number as the second Council anti-pope, thereby proving the latter’s lack of legitimacy.)

However, any resemblance of modern episcopal collegiality to mediaeval conciliarism is superficial.  Vatican II made clear that ‘the college of bishops has no authority [without] its head, the Roman Pontiff … and without any lessening of his power of primacy over all … [which] he can always freely exercise’ (Lumen Gentium (1964), para 22).

The Code of Canon Law 1983 confirms that the Pope may abdicate, but he must do so ‘freely’, and the abdication does not have to be accepted by any other authority (canon 332.2).  He may not be deposed against his will.  The Holy See ‘is judged by no one’ (canon 1404).  It remains a canonical offence to attempt to impugn a papal decision before an ecumenical council or the College of Bishops (canon 1372).

 

Commentaries referred to

Figgis, J.N, Churches in the Modern State (London 1913)

Jacob, E.F, Essays in the Conciliar Epoch (2nd ed, Manchester 1953)

Kelly, J.N.D, The Oxford Dictionary of Popes (OUP 1986)

Knowles, D and Obolensky, D, The Christian Centuries (vol 2, Clarendon 1969)

Pastor, L, History of the Popes (ed F.I Antrobus 1906)

Renouard, Y, The Avignon Papacy (1954, transl D Bethell 1970)

Tierney, B, Foundations of Conciliar Theory (CUP 1955)

Ullmann, W, The Origins of the Great Schism (London 1948)

The Burden of Legislative Reform

The Legislative Reform Measure 2017, aka The Enabling Measure

According to the Church of England’s website, the General Synod is due to consider the first draft of the above Measure this coming weekend, just before the ‘Shared Conversations’ on human sexuality.

The procedural flaws in the Measure have been discussed in a separate post, which is filed below (‘The Proposed Enabling Measure: A Complex Process of Simplification’).

However, the fundamental misconception of the Measure is that it is modelled on a piece of secular legislation that has no application to the Church.  The Legislative and Regulatory Reform Act 2006 makes provision for ‘removing or reducing any burden … resulting directly or indirectly for any person from any legislation’ (s.1).

This provision appears in the draft Measure.  However, the Measure indicates a failure to appreciate the significance of another provision of the 2006 Act.  A burden-reducing order ‘may not be made … in relation to any burden which affects only a Minister of the Crown or government department …’ (s.1(4)).  The 2006 Act defines a ‘burden’ as that ‘which affects the carrying on of any lawful activity’ (s.1(3)).

The 2006 Act was intended to benefit private citizens, not public officials and public authorities.  Its purpose was to cut red tape, to enable ordinary people to go about their business without unnecessary official interference.

In the Measure, by contrast, the definition of  ‘burden’ makes no reference to ‘any lawful activity’ by private citizens.  This is because ecclesiastical legislation does not regulate such activity in the first place.  Instead, the Measure refers to burdens ‘resulting … from ecclesiastical legislation’ (s.1(1)).  However, with the exception of weddings and funerals (particularly the fees involved), ecclesiastical legislation does not impose any burdens on private citizens.

Thus the only burdens that the Measure will relieve, or can relieve, are the burdens attached to ecclesiastical office and governance, because these are the only burdens imposed by ecclesiastical legislation.  This is a quite different, indeed opposite, purpose to that of the 2006 Act.  The 2006 Act was intended to reduce official interference.  The Measure is intended to make the officials’ work easier.

Legislation that promises to reduce burdens always sounds attractive.  However, reducing burdens is not as simple as it sounds.  One person’s burden is another person’s benefit.  One person’s benefit may be another person’s unemployment.  One person’s burden may be reduced merely by increasing another person’s burden, or by appointing an extra person.

The Measure makes clear that burden-reducing may involve

[1] ‘abolishing, conferring or transferring, or …. delegat[ing] … functions of any description …’ (s.1(5))

[2] ‘creating a [new] body or office’

[3] ‘abolish[ing] a body or office’  if abolition is consequential on burden-reducing (s.1(6))

[4] considering ‘the interests of any person adversely affected’ by burden-reducing (s.2(c))

The purpose of the Measure is therefore a little more nuanced than merely ‘reducing burdens’.  It rearranges red tape more than cutting it.  It seeks to reorganise official functions with a view to improving the quality of ecclesiastical governance, by making it simpler, more efficient and less expensive.

This is an admirable purpose, of course.  But it does not justify a new legislative procedure.  It can, and should, be effected by ordinary legislation.  The whole point of all ecclesiastical legislation is to improve the quality of ecclesiastical governance.  The Measure will throw a spanner into the legislative works.  It adds a new legislative procedure that serves essentially the same purpose as the existing one, with the two procedures operating side by side.

The Measure may not receive very close attention in the General Synod, if the members are preoccupied with the more sensational matters to follow.  It may prove insignificant in practice, if it is used only to make minor and uncontroversial administrative changes.  But a more confused attempt at ecclesiastical law reform is hard to imagine.

The Clerical Declaration of Assent

Chancellor Rupert Bursell QC, article in the Ecclesiastical Law Journal (2016) vol 18(2), May 2016, p.165.

This is an interesting account of the history and content of the Declaration contained in Canon C15(1) that clergy are required to make.  However, there are difficulties with its speculations about the disciplinary consequences of a ‘breach’ of the Declaration by an officeholder.

The learned author suggests that any disciplinary case involving the Declaration is likely to constitute a ‘reserved matter’, i.e an offence against doctrine, ritual and ceremonial (p.185).  Reserved matters are still regulated by the Ecclesiastical Jurisdiction Measure 1963, not the Clergy Discipline Measure 2003.

To date, no prosecution has ever been brought under the 1963 procedure for reserved matters.  There seems to be no reported case either under the 1963 Measure or the 2003 Measure concerning a breach of the Canon C15(1) Declaration.

Although described as ‘The Declaration of Assent‘, the word ‘assent’ does not appear in the text of the Declaration.  The Declaration is in the following terms:

‘I, A.B …

[1] declare my belief in the faith which is revealed in the Holy Scriptures and set forth in the Catholic Creeds and to which the historic formularies of the Church of England bear witness and

[2] in public prayer and the administration of the sacraments, I will use only the forms of service which are authorized or allowed by Canon’.

It will be apparent from this wording that ‘the Declaration’ is actually two declarations, as to (1) religious belief and (2) compliance with the Church’s law of worship.

The two declarations are significantly different in character.  Only Declaration (2) is concerned with conduct.  Declaration (1) concerns state of mind.  Declaration (1) is expressed in the present tense.  It affirms the clergyman’s religious belief as at the time it is made.  It contains no guarantee of what the clergyman may or may not believe in the future.  Declaration (2), by contrast, is an undertaking as to future conduct.

It is difficult to see how Declaration (1) could give rise to disciplinary action, as it refers only to a state of mind.  As Dr Johnson observed, ‘Every man has a physical right to think as he pleases, for it cannot be discovered how he thinks’.  Perhaps disciplinary action would be possible if there was evidence that an officeholder had knowingly made a false declaration (e.g ‘I only made the Declaration to get the job’), though such a case might be hard to prove.

The ‘forms of service’ which are the subject of Declaration (2) are now ‘authorised or approved’ under the authority of the Worship and Doctrine Measure 1974, which was, of course, passed some years after the 1963 Measure.  The reserved jurisdiction over ritual and ceremonial in the 1963 Measure applied to the old 1662 regime of public worship.  The 1662 regime was abolished by the Worship and Doctrine Measure.  It might therefore have been appropriate to abolish the reserved jurisdiction over ritual and ceremonial at the same time, but this was not done.

Canon B2 now provides that ‘Every minister shall use only the forms of service authorised by this Canon, except so far as he may exercise the discretion permitted by Canon B5′.

Thus if an officeholder breaks the rule laid down by Canon B2, or exceeds the discretion permitted by Canon B5, this will clearly constitute disobedience, ‘doing [an] act in contravention of the laws ecclesiastical’, which is misconduct under s.8(1) of the Clergy Discipline Measure.  There will be no need to invoke the 1963 reserved jurisdiction, even if such misconduct is cognisable under this jurisdiction.

The learned author asserts that ‘Once made, the Declaration is binding unless and until a cleric formally renounces his or her orders’ i.e by exercising a deed of relinquishment (p.183).  He makes this assertion not just once but twice (at p.183 and p.187).  (It must be important to him, for some reason.)

Canon C15(1)(6) is cited as authority.  This provides that

‘Where any bishop, priest or deacon ceases to hold office in the Church of England or otherwise ceases to serve in any place, the Declaration made under this Canon shall continue to have effect insofar as he continues to minister in the Church’.

On this wording, Canon C15(1)(6) does not provide that the Declaration continues until a clergyman formally renounces his orders.  It provides only that the Declaration continues as long as the clergyman continues to officiate.  It makes no reference to renunciation of orders.

Canon C15(1)(6) means in effect that a retired bishop or vicar (or a vicar on a career break) who helps out by taking services, as retired clergy do, will not have to take the Declaration again after retirement, but will be expected to honour the Declaration made while still in ‘active’ ministry.  It simply does not apply to clergy who do not officiate at all.  And clergy who do not officiate in the Church will have no opportunity to act in breach of the Declaration, regardless of whether they have executed a deed of relinquishment.

What did the Ornaments Rubric Mean?

‘Provided always … that such ornaments of [1] a church, and [2] the ministers thereof,

shall be retained and be in use as was [in use] in this Church of England by the authority of Parliament in [1549] until other order shall be taken by the authority of the Queen’s Majesty or of the Metropolitan of this realm [i.e the Archbishop of Canterbury] …’ (Act of Uniformity 1558)

‘the Minister, at the time of the Communion, and at all other times in his ministration, shall use ornaments in the church, as were in use by the authority of Parliament in [1549] according to the Act of Parliament [of 1558, above]’ (1558 rubric)

‘such ornaments of the church, and of the ministers thereof, at all times of their ministration, shall be retained, and be in use, as were in the Church of England, by the authority of Parliament [in 1549]’ (1662 rubric).

This question is phrased in the past tense advisedly.  The Ornaments Rubric no longer means anything to the English law of public worship.  The statutory authority that the Prayer Book rubrics once enjoyed was abolished by the Worship and Doctrine Measure 1974, except in respect of banns of marriage.  This is discussed in a separate post, filed below.

However, the Ornaments Rubric was discussed at length by the Court of the Arches and by the Privy Council in two celebrated 19th century ritual cases

(1) Liddell v Westerton (1857) and

(2) Elphinstone v Purchas, later Hebbert v Purchas (1870-1)

Liddell concerned the ornaments of the church.  A faculty was sought for the removal of various items associated with ritualism, such as cross and lights on the altar and colourful altar coverings.

Purchas concerned the ornaments of the minister.  The Rev Mr Purchas was charged with ‘wearing … whilst officiating in the communion service … a vestment called a chasuble … [and] a certain vestment called an alb, instead of a surplice’ (p.167), i.e the catholic eucharistic vestments.  Mr Elphinstone, the original prosecutor, died before the case reached the Privy Council, so Mr Hebbert had to be substituted.  (Death was not allowed to frustrate the continued pursuit of Mr Purchas, such was the gravity of the case.)

The erudite Sir Robert Phillimore, Dean of the Arches and original author of the famous commentary on ecclesiastical law, had no difficulty with the Ornaments Rubric: ‘the construction of this Rubric according to general principles of legal interpretation … appear[s] to me as plain and simple as any which is to be found in any statutory enactment’ (Phillimore’s Ecclesiastical Judgments, p.162).  He saw the irony of the Rubric being used to oppose ritualism when its original purpose was to protect the ornaments of church and minister from iconoclastic radical protestants who wished to get rid of them.

Phillimore also understood that the Rubric is expressed in mandatory, not prohibitive, terms.  It provides that the identified ornaments must be used.  It does not provide that only those ornaments may be used and no other.

Unfortunately the Privy Council interpreted the Rubric differently.  It observed in Liddell that, upon the accession of Queen Elizabeth I in 1558, ‘a great controversy arose between the more violent and the more moderate reformers as to the Church service which should be re-established’ (Six Privy Council Judgments (1872) ed W.G Brooke, p.52).  This controversy dated back to the reign of the Queen’s half-brother, the boy King Edward VI.  During his short reign, two Prayer Books (or two different versions of the same Prayer Book) were published.  The first Prayer Book, in 1549, was conservative and ‘catholic’ in character.  As the political balance of power shifted in favour of the radical reformers, the second Prayer Book, published in 1552, was more avowedly protestant.

The Elizabethan settlement of 1558 was therefore a compromise between the two parties.  Elizabethan public worship would use the forms of service in the ‘protestant’ 1552 Book, but retain the ornaments mentioned in the ‘catholic’ 1549 Book.  Protestant services with catholic ornaments.  That was the deal.

The Privy Council reasoned that ‘the word ‘ornaments’ applies, and in this Rubric [i.e the Ornaments Rubric] is confined to, those articles the use of which … is [positively] prescribed by [the 1549 Book]’ (p.52).  Ornaments not prescribed by the 1549 Book could therefore not be permitted.

Thus the apparent conclusion was that the Elizabethan compromise still bound the Church of England, and the courts, 300 years later.  If extra ornaments were permitted, this would be a breach of the compromise.  The violent reformers would be short-changed.

The Privy Council was careful to state that the phrase ‘ornaments of the church’ did not refer to all physical items within Victorian churches.  The Ornaments Rubric did not mean that all articles not expressly referred to in the 1549 Book are illegal.  The ‘ornaments’ referred to in the Rubric comprised ‘All the several articles used in the performance of the services and rites of the Church’ (p.51).  Items used to decorate the church rather than to perform liturgical actions were outside the scope of the Rubric, and so might be permitted.  Therefore ‘crosses … when used as mere emblems of the Christian faith, and not as objects of superstitious reverence … may still lawfully be erected as architectural decorations …’, even though not referred to in the 1549 Book (p.65).

So much for the ornaments of the church.  In Purchas, the Privy Council proceeded to examine the ornaments of the minister.

Prima facie the ritualists were on stronger ground here.  The 1549 Book provided that, at the holy communion, ‘commonly called the masse’, the officiating priest ‘shall put upon him … a white alb … with a [eucharistic] vestment or cope’.  Any clergy assisting him were required to wear ‘albs with tunicles’.

The Act of 1558, as quoted above, suggests that the Ornaments Rubric was intended to be a temporary provision only.  It was to apply only ‘until other order shall be taken’.  Yet the 1662 rubric, which was authorized over 100 years later, is almost exactly the same wording as the 1558 rubric.  This may suggest that no such ‘other order’ was ever taken, and that the compromise of 1558 was revived in 1662 without alteration.

This was Phillimore’s view.  Certain ‘Advertisements’ concerning public worship were published in the 1560s, but Phillimore held that ‘the Queen never gave her official or legal sanction to these’ (p.169).  The canons of 1603 make no reference to eucharistic vestments, and provide that ‘Every minister saying the public prayers, or ministering the sacraments [including holy communion] or other rites of the Church, shall wear a decent and comely surplice’ (canon 58).  At holy communion in cathedrals, likewise, the officiating clergyman was required to wear ‘a decent cope’, but again no eucharistic vestments (canon 24).

However, as Phillimore pointed out, the canons of 1603 were promulgated under the Submission of the Clergy Act 1533, a quite different statute from the 1558 Act of Uniformity.  Moreover, they did not have the sanction of the Archbishop of Canterbury, as the 1558 Act required, because the See of Canterbury was vacant at the time they were promulgated.  The Bishop of London had presided instead of the Archbishop.

Thus, while the canons of 1603 might permit clergy to officiate at holy communion in a surplice, they could not forbid clergy from wearing eucharistic vestments.  The canons of 1603 could not replace or override the 1558 Act.

Once again, the Privy Council disagreed.  It held that the Advertisements of the 1560s did have royal authority, and so did constitute ‘other order’ under the 1558 Act.  Moreover, they were enforced by royal commissioners.  The practical effect of this was ‘that within a few years after the Advertisements were issued the [eucharistic] vestments … entirely disappeared’ (p.170).  There was no attempt to revive them before 1662.  The canons of 1603 ‘ordered surplice only to be used in parish churches’ (p.176).

Although the wording of the 1662 rubric may seem almost identical to the 1558 wording, the Privy Council detected a critical difference.  The 1558 rubric contains a specific reference to holy communion.  It distinguishes between the ornaments of the minister ‘at the time of the communion, and at all other times’.  The 1662 rubric, by contrast, makes no separate reference to holy communion.

This means, or so the Privy Council reasoned, that in 1558 clergy were expected to wear different ‘ornaments’ when officiating at holy communion and when officiating at other acts of worship.  In 1662, by contrast, clergy were expected to wear the same vestments (i.e surplice only, or surplice and cope) at all acts of worship, including holy communion.

The Privy Council therefore held, with ruthless logic, that ‘If the minister is ordered to wear a surplice at all times of his ministration, he cannot wear an alb and tunicle … if he is celebrating holy communion in a chasuble, he cannot celebrate in a surplice’ (pp.178-9).

Chancellor Bursell described this interpretation of the Ornaments Rubric as ‘rigorist’.  It was unjust to Mr Purchas.  It may well be true that Eucharistic vestments were officially discouraged and fell into disuse in Elizabethan times, and that there was no wish to revive them in 1662.  It may also be true that the 1662 rubric envisages that clergy will officiate at holy communion in surplices.

However, the 1662 rubric does not forbid clergy from wearing eucharistic vestments.  The Rev Mr Purchas had been charged with an ecclesiastical offence.  In deciding his case, the Privy Council was exercising a disciplinary, indeed a ‘criminal’, jurisdiction.  He should not have been convicted of using Eucharistic vestments without a clearly worded rule positively forbidding such use.  The wording of the 1662 rubric is not nearly clear enough.

The Privy Council’s treatment of the canons of 1603 was also anachronistic.  The canons did not positively forbid Eucharistic vestments, any more than the rubric.  On their wording they do not order surplice only.  They were not directed against 19th century ritualists, but to upholding minimum liturgical standards against a radical Protestantism that wished to do away with all ecclesiastical vestments.

While the original Elizabethan provision for ornaments may have effected a stable compromise, the Privy Council’s interpretation of the Ornaments Rubric merely resulted in anarchy.  Its judgments were ignored by the Church of England, and the study and reputation of ecclesiastical law never recovered.

The Unknown Bellringer: Bells and Organs

‘The control of access to church for bellringing purposes [is] analogous to the control of sporting associations’

TH v Chapter of Worcester Cathedral et al (2016) High Court (Administrative) 1117, at para 77.

In this case, the Chapter forbade a bellringer from ringing at the Cathedral after a ‘safeguarding’ investigation made findings of sexually inappropriate conduct against him.  The bellringer applied for judicial review of the decision on various grounds, including breach of his human rights.

The court granted the bellringer anonymity, but refused his application.  There was no jurisdiction to review the Chapter’s decision, because the Chapter was not exercising any ‘governmental or public administrative function’ in taking the decision (para 67).  It was merely exercising a proprietary, and private, right (para 71).  The Chapter controlled the bell-tower on behalf of the Cathedral, and was therefore entitled to decide who might or might not enter it.  Although its decision was motivated by concerns about safeguarding, the Chapter was not acting as a safeguarding authority or exercising a legal safeguarding power.

(The informative and erudite blog Law and Religion UK provides a detailed summary of this case, posted 20th May 2016.)

The bellringer brought his claim merely as a private citizen aggrieved by the action of a public authority.  He did not attempt to argue that a Cathedral bellringer is an officeholder of the Cathedral, or that the Chapter’s decision had wrongfully interfered with his tenure of an office.

The Administrative Court’s likening of bellringing to a sporting or recreational activity (as quoted above), rather than to a strictly ecclesiastical function, is supported by a dictum in Pearce and Hughes v Rector of Clapham (1830) 162 English Reports 1063.  As the Court of the Arches pointed out in that case, ecclesiastical law only requires a church to possess one bell, not a whole ring of bells.  ‘There must be a bell to ring to church, and to toll at funerals: but that is all’ (p.1065).  Canon F8 now provides for ‘at least one bell to ring the people to divine service’.

On Sundays, the ring of bells usually falls silent 5 or 10 minutes before the time of divine service, and the bellringers depart.  The single bell is then rung until the service begins.  It is this single bell that performs the constitutional function prescribed by ecclesiastical law, not the ring of bells that precedes it.

The canons of 1603 restricted the recreational use of bells.  Bells were ‘[not] to be rung superstitiously upon Holy Days or Eves abrogated by the Book of Common Prayer, nor at any other times, without good cause to be allowed by the Minister … and by [the churchwardens]’ (canon 88).  Persons who disturbed divine service by ‘untimely ringing of bells’ suffered ecclesiastical discipline (canon 111).

Canon F8 now provides that ‘No bell … shall be rung contrary to the direction of the Minister’.  The incumbent controls the belfry of the parish church, just as the Chapter does the Cathedral belfry.  Churchwardens are said to have the property in any parish bells and bellropes.

However, while ecclesiastical law makes certain provision for bells, the bellringer himself would seem to be ‘a person unknown to ecclesiastical law, either as an official of the Church, or as a servant of the parish’.  This dictum was originally applied to organists rather than bellringers, but it is no longer true of organists.

It may be instructive to compare the relationship of bells and organs, and those who operate them, to ecclesiastical law.  The Pearce case concerned a faculty for the installation of a new organ (which was granted).  The Court of the Arches held that

‘Most certainly an organ is not necessary in a parish church for the decent performance of worship [any more than a ring of bells]: therefore the parishioners are not bound to provide an organ: but, though it is not necessary, it is extremely decent, proper and even customary in a parish … of extent and opulence’ (p.1064).

On this view, an organ has the same ecclesiastical status as a ring of bells.  It is a desirable, but not essential ornament, of divine service.  The revised canons still do not provide that parish churches must have organs (or any musical instruments).  However, since 1988, ecclesiastical law has addressed the appointment and removal of parish organists.  Canon B20(1) provides that

‘the functions of appointing any organist, choirmaster … or director of music, and of terminating the appointment … shall be exercisable by the minister with the agreement of the parochial church council [PCC], except that, if the archdeacon … in the case of the termination of the appointment, considers that … the requirement as to the agreement of the PCC should be dispensed with, the archdeacon may direct accordingly’.

Thus the effect of canon B20(1) is that the incumbent and the archdeacon may force the dismissal of an organist against the will of the PCC.  Canon B20(1) does not address the question of who picks up the bill if a secular tribunal or court rules that a dismissal is unfair, and awards compensation to the sacked organist.  Even if the organist is hired on a self-employed basis only, without an employment contract, a dismissal may still breach his rights under the so-called ‘equality’ laws.

A cathedral, unlike a parish church, must have a ‘director of music’ by law (Cathedrals Measure 1999, s.9(1)(g)).  Further provision concerning this office is a matter for the constitution and statutes of the particular cathedral.

It seems that parish organists, unlike their cathedral counterparts, cannot be officeholders.  The case of Royce (1940) 1 Chancery 514 concerned a bequest ‘for the benefit of the [parish] choir’.  There was a dictum of Lord Hardwicke which apparently suggested that such a gift might be invalid, ‘as choristers never were allowed in parochial churches’ (p.518).

However, the court allowed the bequest, and offered this clarification:

‘what perhaps the Lord Chancellor [Hardwicke] had in mind … [was] that, as distinguished from a cathedral or collegiate church, of which the choristers might still remain part of the body [i.e they are part of the cathedral or college foundation], in parochial churches … choristers were not recognised as part of the church body or organisation … But to say that it was illegal to have a choir in the parish church … [is] a proposition for which there is no authority’ (pp.518-520).

There is no specific reference here to an organist or choirmaster, but the case suggests that the members of a parish choir, and by implication its organist or director, cannot be officeholders.  Therefore they must either be volunteers from the congregation, or paid servants or contractors.