Ecclesiastical law

A Decade of the Faculty Jurisdiction

One of the reasons for starting this blog 10 years ago was to address 2 confusions concerning the faculty jurisdiction:

(1) exaggerated reverence for the sanctity of ecclesiastical property and

(2) failure to appreciate that the faculty jurisdiction, though exercised by judges and courts, is actually an executive or administrative function, not a judicial one.

(1) originated in a misunderstanding of the legal effect of consecration upon land (see ‘Consecrated Land: Status and Use’, filed under category ‘Consecration’). It was encouraged by a fear of losing the precious exemption from secular listed building control. It resulted in the rule that changes to a listed church should be permitted only on grounds of necessity (see ‘The Necessity of the Ecclesiastical Exemption’, filed under ‘Faculties’). This test of ‘necessity’ was actually stricter than that required for secular listed building consent.

(2) arose from confusing the ecclesiastical offices of chancellor and vicar-general, which are generally held by the same person. Judicial functions (now virtually all abolished) are exercised by the chancellor. The vicar-general, as his title implies, exercises administrative functions, including the faculty jurisdiction, as the deputy or representative of the bishop (see ‘The Chancellor, the Official-Principal and the Vicar-General’, filed under ‘Ecclesiastical Jurisdiction’).

A few months after this blog started, in the case of St. Alkmund, Duffield (2012), the Court of the Arches abandoned the exaggerated test of ‘necessity’. Nothing to do with this blog, of course. It was all due to the persuasive powers of Mr Alexander McGregor, barrister and amicus curiae in the case, who, ‘unprompted by any member of this Court … invited the Court to … revisit [the necessity test]’ (para 82).

The Court briefly alluded to the powerful criticisms of the test made by 2 very senior judges of the Court of Ecclesiastical Causes Reserved in St. Stephen Wallbrook (1987) 2 All England Reports 578, but did not explain why it had waited a quarter of a century to address these.

As a result of Duffield, dealings with listed churches now require a balance to be struck between

(1) their impact on the building (pejoratively described as ‘harm’ to the building) and

(2) the benefit that will accrue therefrom

Thus ‘the more serious the harm, the greater will be the … benefit needed to justify a faculty’ (87).

This new, and more realistic, balancing exercise is similar to the original test formulated by Lord Penzance, Dean of the Arches, in Peek v Trower (1881) 7 Probate Division 21: ‘the burden is cast upon [the petitioner] to shew that [the proposed dealing] will make things better than they are’ (p.27), though laying greater emphasis on the claims of conservation.

Duffield was concerned with buildings, not movable chattels. St Lawrence Wootton (2014) concerned the sale, to a private buyer, of an armet, ‘a type of helmet, worn by knights and men-at-arms during the 15th and 16th centuries’ (1), (therefore not an item particular to a church).

The Court of the Arches refused a faculty. The only reason given for the sale was to raise money. That might be a good enough reason if there was a financial emergency, but the parish was actually quite prosperous. Absent emergency, fundraising alone was not a sufficient justification for the sale.

The Court made valid observations about the importance of conserving heritage, and the need to treat parochial pleas of poverty and expense with a degree of caution. However, the decision was hardly satisfactory. The armet had been removed from the church as long as 40 years ago, for security reasons, and deposited in a museum. There was no possibility of it ever returning to the church. It was not even on public display in the museum, but locked away in a storeroom (albeit ‘viewable by arrangement’ (2)).

If we apply the Duffield test to this case, it is hard to see how the sale of the armet could possibly have caused any harm, whether to the armet itself, to the church, or to national or local heritage. And sale would have yielded a benefit, in the form of a sum of money which could have been put to good ecclesiastical use. As the Court itself observed, refusing a faculty was effectively penalising the parish for ‘the commendable strength of their financial position’ (93).

The decision in St Lawrence Wootton has unfortunate echoes of St John’s, Chelsea (1962) 2 All England Reports 850, when a lucrative commercial development of land that had been vacant for 2 decades was refused, even though there was no hope of restoring it to ecclesiastical use, just because the land had once been consecrated.

The Duffield guidance has clarified the relationship between the faculty jurisdiction and property. What has been done over the last decade to clarify the difference between administrative and judicial function (confusion (2) above)?

Chancellor Bursell unfortunately succeeded in exacerbating confusion with a flawed thesis on ‘precedent’, which failed to appreciate the fundamental distinction between binding precedent and mere guidance. (See ‘Alsager v Blagdon: Binding and Guiding’, and ‘Unprecedented Confusion: A Tribute to Chancellor Bursell’, filed under ‘Faculties’). This caused an unnecessary addition to the Ecclesiastical Jurisdiction and Care of Churches Measure 2018, at s.14A.

There are at least 3 practical differences between the judicial function and the faculty jurisdiction, which should inform the conduct of faculty proceedings:

(1) the judicial function is the determination, or vindication, of rights. A faculty, by contrast, is a permission to do something to which there is no right.

(2) judicial proceedings are almost always contested. Faculty proceedings are almost always unopposed.

(3) the judicial function (i.e trying a claim of injustice) is generally concerned with the past, which must be proved by evidence. The faculty jurisdiction is concerned with the future, ‘making things better than they are’ as Lord Penzance put it, but the future is incapable of proof. (See ‘St Mary’s Churchyard, White Waltham’, filed under ‘Faculties’.)

These differences arguably demand a different practical approach to faculties:

(1) a more pro-active, even inquisitorial, investigation by the decision-taker, as there will be no party opponent to draw attention to omitted evidence, or cross-examine witnesses. But also

(2) an emphasis on substance rather than form. Nobody is on trial, and nobody’s rights are at stake. All relevant facts must be found, and parishioners and other interested parties properly informed, and given opportunity to make representations. However, this should not require an elaborate procedure.

A lecture entitled ‘Do we still need the Faculty System?’ (Ecclesiastical Law Journal, September 2020), by the late Dean of the Arches and Auditor, Charles George QC, did much to clarify confusion (2). (Though, like the Duffield guidance, this has been a long time coming.) The deliberate choice of the word ‘system‘, rather than ‘jurisdiction’, acknowledges the administrative character of faculty proceedings. The lecture also drew attention to some interesting points:

(1) the latest edition of the faculty rules, which Dean George promoted, refers to ‘the chancellor’ rather than ‘the court’ (though ‘vicar-general’ would have been an even better reference, for the reasons stated earlier)

(2) ‘the members of the Court of Arches have never, during my term of office, worn robes or wigs (what is good enough for the Supreme Court is good enough for us)’ [!]. Wigs and gowns are, of course, outward and visible signs of the judicial function.

(3) the faculty jurisdiction / system over cathedrals is exercised by committees, not courts (see the preceding blogpost). Dean George suggested that the diocesan jurisdiction could be exercised likewise, by the diocesan advisory committee rather than the chancellor.

A powerful suggestion, to which we would have assented at the time it was originally made. But perhaps the experience of recent years should give us pause. The armet in St Lawrence Wootton would presumably now be denounced as ‘colonialist’ (if, of course, the denouncers were made aware of what an armet actually is). The conservatism and self-importance of ecclesiastical courts and judges – wigs and all – are easily mocked. But they may foster one very precious quality – independence: a refusal to be carried along by the fads and fashions of the present moment, or to be hustled by powerful and articulate interest groups. Diocesan and cathedral committees are less formal and pretentious, but may they also be less resistant to political pressure?

The faculty jurisdiction now faces a new and greater test of necessity – of the protection of ecclesiastical heritage from abuse, which is its constitutional function. The recent decision of an ecclesiastical judge in the well known case of Jesus College, Cambridge offers a small hope.

The Regulation of Cathedral Property: Economic and Environmental

Cathedral property is regulated by 2 regimes, which may be described as

(1) economic, concerning the use of the property, and

(2) environmental, concerning the care and conservation thereof.

The 2 regimes are provided by 2 Church of England Measures

(1) the Cathedrals Measure 2021, the latest in a series of Measures dating back to 1931 and

(2) the Care of Cathedrals Measure 2011, which is a consolidation of 2 earlier Measures passed in 1990 and 1994.

The 2021 Measure is concerned with both regulatory regimes (1) and (2). The 2011 Measure, as its title implies, is concerned only with (2).

(2) takes precedence over (1). A cathedral is not for profit, of course. The principal objects of cathedral administration are

(1) ‘to advance the Christian religion in accordance with the faith and practice of the Church of England’ and

(2) ‘to care for and conserve the fabric and structure of the cathedral church building’ (s.4(1)).

Thus the economic regulation of cathedral property is only a means to an end. The environmental regulation is an end in itself. All property must be applied to its constitutional objects or ‘other charitable purposes which are ancillary [there]to’.

Economic regulation extends to all species of cathedral property, real and personal, corporeal and incorporeal. Environmental regulation is concerned only with physical property, i.e land, buildings and chattels.

The Regulatory Structure

Within the cathedral administration, the primary responsibility for both the use and the care of cathedral property belongs to the chapter (cf 2021 Measure, s.11(1)(f)).

As well as the chapter, every cathedral has a

(1) finance committee and

(2) CFO.

A cathedral may have a discrete ‘audit and risk’ committee, as well as a finance committee (s.16).

For environmental matters there is a

(1) fabric advisory committee (‘FAC’) and

(2) architect, or ‘surveyor of the fabric’ (2011 Measure, s.4(1) and s.5(1)(e)).

A cathedral may also have an archaeologist, if one is required (s.23).

Cathedral property is subject to the oversight of 2 national Church authorities

(1) the Church Commissioners (‘the Commissioners’), for economic matters and

(2) the Cathedrals Fabric Commission (‘CFC’), for environmental matters.

As well as ecclesiastical jurisdiction, the chapter is subject to the jurisdiction of the High Court with respect to charities (s.8(5)), and to secular charity law. Like other places of worship, cathedrals enjoy the ecclesiastical exemption from listed building control. Apart from this exemption, however, cathedrals will be subject to secular environmental law.

Classifying Cathedral Property

Neither the 2021 Measure nor the 2011 Measure makes any reference to the consecration of land or buildings. Thus the regulation of cathedral property is unaffected by whether it is consecrated or not.

The 2021 Measure defines a cathedral church building as ‘the buildings [plural] within the ecclesiastical exemption for that cathedral’ (s.4(2), also s.45(1)).

The 2011 Measure requires the chapter to prepare a plan of ‘land surrounding the cathedral church of which the fee simple [i.e freehold] is vested in the [chapter] (s.25). The CFC then defines the cathedral precinct by appropriate marking of the plan. The precinct, as defined by the CFC, consists of so much of the freehold land as is necessary to preserve or protect the character and setting of the cathedral and any associated buildings and archaeological or human remains.

Thus the chapter prepares the plan of the surrounding land, on the basis of its freehold of that land. The CFC defines the precinct on the basis of the plan.

If there are changes to the freehold, the chapter must alter the plan. The CFC in turn must redefine the precinct. It may also redefine the precinct of its own motion, even if there have been no changes to the freehold.

The chapter must also keep an inventory of all important objects belonging to the cathedral. This includes objects ‘to whose possession or custody the chapter is entitled’, even if not physically present on cathedral premises (2011 Measure, s.4(1)). ‘Important’ is defined as ‘of architectural, archaeological, artistic or historic interest’. The FAC determines what objects are of sufficient importance to be included in the inventory, after consulting the CFC (2011 Measure, s.24(4)).

All objects in the inventory are important. However, the FAC must also identify those inventory objects that is considers to be of outstanding interest. Thus there are 2 classes of inventory object

(1) important objects and

(2) outstanding objects.

If an important but hitherto unknown object is discovered (buried treasure) the CFC must be notified and the object recorded in the inventory (2011 Measure, s.7).

Thus, for environmental purposes, cathedral property is classified as

(1) cathedral and precinct (land and buildings)

(2) inventory objects (whether outstanding or merely important) or

(3) all other physical property, whether real or personal.

The chapter may of course own land and buildings outwith the cathedral precinct, and may own intangible investment property. For economic purposes, cathedral property is classified as

(1) inalienable – the cathedral itself and outstanding inventory objects (i.e physical property)

(2) permanent – i.e part of the permanent endowment of the cathedral (real and personal property) or

(3) other property, both real and personal.

Inalienable property cannot be sold or mortgaged, or even valued (s.20).

The Commissioners have jurisdiction to decide (under seal) whether property already held by, or on behalf of, the chapter (not any other property, so not affecting third party rights) is part of the permanent endowment (s.23). They can only decide on the application of the chapter, not of any third party, nor (apparently) of their own motion.


The chapter prepares an annual budget and accounts (s.11(1)). It must ensure ‘appropriate oversight of … internal and external audit’ (s.5(1)(j)). Accounts must be copied to the bishop and the Commissioners. The Commissioners may order the chapter to provide additional ‘financial information’ (s.30). The cathedral’s financial year end is determined by order of the Commissioners (s.30(1)).

The bishop’s power to intervene in economic matters is limited and discretionary. He may commission a review of particular aspects of cathedral governance, including its ‘financial affairs’ (s.9(6)). The chapter must co-operate with any review (8). However, they are required only to ‘have due regard to the conclusions … and any recommendations made in the review’ (9). The chapter is not bound by a review.

The FAC, as its title implies, is supposed to advise the chapter on care and conservation matters (2011 Measure, s.4(2)(a)). The CFC gives similar advice.

There must be a 5-yearly report on works required to be done (i.e in the future) to the cathedral and any ancillary buildings. The report is based on inspections, carried out ‘as the cathedral architect or surveyor considers necessary’ (s.26). A newly appointed architect / surveyor must make ‘a full and detailed inspection’ and report within 2 years of appointment. There must also be an annual report detailing work already done and work in progress, and any other matters relevant to the cathedral’s care and conservation.

Apart from the cathedral itself there must be a 5-yearly inspection, with report, of all other property which the chapter is liable to repair and maintain. (s.27(1)).

The chapter must report annually to the FAC about the state of the inventory (s.24(3)).

Dealings – Economic

If a cathedral is also a parish church (a few are), its statutes may provide that either the whole cathedral building, or only part thereof, is to be the parish church. The ‘parish church’ may also be moved from one part of the cathedral building to another. (s.7(1)). The Commissioners may make a scheme to provide that a cathedral, or part thereof, shall cease to be a parish church (s.41(1)).

As mentioned, the cathedral itself is inalienable. Endowment property, though permanent, is not inalienable. Dealings with endowment property, will generally require the consent of the Commissioners.

Land may not be acquired or disposed of without the Commissioners’ consent, though the Commissioners may by order except minor transactions from this requirement (s.21). (The requirements of secular charity law must still be observed (s.22(6)). Borrowing against endowment requires the Commissioners’ consent (s.24). Disposal proceeds of endowment property are likewise endowment property (s.25). Endowment property may be sold for less than its full market value (s.22(7)).

Endowed funds may be invested in land or other permitted investments, and may also be used ‘for the improvement or development of property vested in the chapter’ (s.24(1)), i.e to increase its value. However, endowed funds may not be used to pay for repairs to the cathedral itself, except in an emergency. (Repairs to the cathedral will not increase its economic value, because the cathedral is inalienable, and therefore has no economic value.) Emergency repairs require the consent of the Commissioners, and there must be a scheme to replace the money spent.

The chapter may accommodate cathedral officeholders and employees without the Commissioners’ consent (s.22(3)). The chapter is the statutory ‘housing provider’ for all stipendiary cathedral clergy, from the dean down, who are subject to common tenure, and therefore must provide them with accommodation (Terms of Service Measure 2009, s.4). The chapter’s rights and duties as housing provider are prescribed by Terms of Service Regulations 12-16.

If there are still any deans and canons who are not subject to common tenure, any sale of their official residences will require their consent, so will probably have to wait until they retire. If the dean or canon is appointed by the Crown, Her Majesty’s consent will also be required, even in a vacancy (s.22(2)).

Dealings with non-endowment property will not require the consent of the Commissioners.

Dealings – Environmental

The 2011 Measure regulates works done to the cathedral, the precinct and inventory objects. It also regulates other dealings with inventory objects (2011 Measure, s.2).

The FAC and the CFC exercise a jurisdiction over the cathedral comparable to the faculty jurisdiction of the ecclesiastical courts over parish churches and churchyards. Any significant works or dealings will require the approval of either

(1) the FAC or

(2) the CFC

according to their impact. Permanent alterations, demolitions, disturbance of human remains, and the disposal or loan of outstanding objects are all reserved to the CFC. Less significant matters are left to the FAC to decide. Applications for approval are governed by procedural rules.

The chapter may only carry out works without approval if these do not ‘materially affect … the architectural, archaeological, artistic or historic character’ of the property.

Thus, despite its title, the FAC’s function is not merely advisory. It is a decision-making authority independent of the chapter. By contrast, the 2021 Measure does not require the approval of the finance / audit committee(s) to particular economic dealings.

Discovered ‘treasure’ may be disposed of with the CFC’s approval, but the British Museum, or another museum nominated by it, must be given first refusal (2011 Measure, s.7(4)).

An application for approval to the FAC or the CFC must come from the chapter, not a third party. The FAC and CFC each have to decide whether its own approval is required, or the other’s (or perhaps neither’s). They may determine that works of a specific class or description do not require their approval.

The Chapter may appeal an unfavourable decision of the FAC to the CFC. An appeal (or rather, review) from a decision of the CFC lies to a special Commission of Review (s.11).

Although an original application for approval can only be made by the chapter, a disappointed tenant may appeal the FAC’s or CFC’s refusal to approve works to his property (s.14).

The FAC and CFC have power to give retrospective approval for illegal works and dealings falling within their jurisdiction, i.e a confirmatory faculty (2011 Measure, s.2(3)).

Not all precinct property is necessarily within the ecclesiastical exemption. If the chapter wishes to apply for listed building consent for a non-exempt precinct building, it must notify the CFC and invite representations, but the CFC’s approval of such application is not required. The FAC and the CFC have no jurisdiction over works to any cathedral-owned buildings that are outside the precinct.

The FAC’s jurisdiction to permit the sale (or other permanent disposal) of inventory objects, as well as works thereto, may overlap with the Commissioners’ jurisdiction over endowment property. If an inventory object is classified as endowment property, the consent of both FAC and Commissioners will be required to any sale.

There is apparent inconsistency between the 2021 Measure and the 2011 Measure on dealings with outstanding objects. The 2021 Measure is adamant that such objects ‘may not be alienated’ and ‘cannot be transferred from the chapter’, unless the chapter itself ceases to exist (a most unlikely event). Even then they can be transferred only to the diocesan board of finance, nowhere else (s.20). Yet the 2011 Measure suggests that the CFC may approve ‘the sale … or other disposal of … any [outstanding] object’ (s.6(1)(iv).


If the chapter illegally acquires or disposes of land without the Commissioners’ consent, the transaction is prima facie void. Third parties will be protected if the conveyance includes a sealed statement by the chapter that the Commissioners’ consent is not required (s.21(6) and s.22(9). The Commissioners’ written statement of consent to such conveyance will also protect an innocent third party, if the Commissioners later complain that their consent was obtained by misrepresentation or deceit (s.21(5) and s.22(8)). However, there is no specific protection for third parties to any other illegal dealings with endowment property.

Any dispute arising from an impugned transaction would be a matter for the High Court. Likewise if the chapter considered that the Commissioners had unreasonably refused consent to a transaction, they could apply for judicial review of the refusal.

It might be thought that enforcement of the cathedral’s environmental regime could likewise be entrusted to the High Court, if the chapter regrettably engaged in unapproved works, or threatened to do so. However, the 2011 Measure provides bespoke enforcement powers (ss.15 to 20), similar to those exercised by ecclesiastical courts under the Ecclesiastical Jurisdiction and Care of Churches Measure 2018.

The FAC and the CFC are committees, not courts, so ill-equipped to enforce their own jurisdiction. Enforcement action is therefore taken by the bishop, who may hold a special visitation. If this proves insufficient, the Vicar-General’s court of the relevant province can issue injunctions and restoration orders. (This enforcement regime is discussed in more detail in a blogpost ‘Cathedrals and the Faculty Jurisdiction’, filed below.)

A Decade of Blogging

On how to write: ‘Make notes, make notes – until your notes are shot through with boundless hope!‘ (Jean Guitton, Journals)

And the effects of ageing upon scholarship: ‘a growing distaste for accuracy, a wider and wider canvas, a life of conferences and pious platitudes‘ (Angus Wilson, Anglo-Saxon Attitudes)

This blog was created towards the end of March 2012, 10 years ago now. It seeks to explain English ecclesiastical law by

(1) succinct narratives of the law on particular subjects (e.g baptism, preaching, the marriage contract, Sunday worship, the diocesan board of finance)

(2) clarifying particular points of law (e.g the lay rector’s obligation to repair the chancel, the legal effects of consecration, the Monarch’s ecclesiastical title, jurisdiction to decide the boundaries of Church property, the difference between binding precedent and mere guidance)

(3) discussing the legal implications of a particular case or event (e.g a vicar’s refusal to baptise the child of unmarried parents, a mixed marriage, the suspension of a bishop)

(4) assessing a particular piece of work, such as a judgment, report, book or article.

The blog has never attempted systematic topicality, i.e tracking new legislation, judicial decisions and legal commentaries. The author lacks both the time and, to be honest, the inclination for such work. Instead the blog depends on thought and inspiration, being moved by the spirit to write about a particular issue, regardless of whether it dates from Biblical times or just yesterday.

The blog Law and Religion UK, which started about the same time as this blog, is truly formidable in its systematic and almost daily coverage, not only of ecclesiastical law, but, as its title implies, all kinds of interaction between law and religion. This blog has for years been indebted to the Law and Religion blog both for information and ideas.

However, the narrow scope of this blog was not chosen out of laziness. On the contrary, it seeks to counter a lazy treatment of the subject. Discussion of ecclesiastical law is bedevilled (perhaps literally!) by 2 opposite errors. Since the 19th century, ecclesiastical law has been widely misunderstood as a branch of ‘canon law’. This reflects the influence of romantic mediaevalism. In the present 21st century, it is increasingly treated as a branch of human rights law, a reflection of secularist and agnostic influence.

Ecclesiastical law is a branch of English law, not of canon law. Like secular law, it comprises legislation, i.e written statutory law, and unwritten common law. The only source of authority for both written and unwritten ecclesiastical law, no less than for secular law, is the Crown. The House of Lords made clear the distinction between ‘the King’s [now the Queen’s] ecclesiastical law’ and ‘The canon law of Europe [which] does not, and never did, as a body of law, form part of the laws of England’ (R v Millis (1844) 8 English Reports 641 at p.688).

Ecclesiastical law and canon law may profitably be studied together (and are studied together in this blog) for comparative and contextual purposes. However, the student who fails to understand the difference between the 2 subjects will never really understand either.

The function of ecclesiastical law is the administration of the Christian religion by the state. It is the counterpart of secular constitutional and administrative law. As such it requires a freedom or independence analogous to judicial independence, i.e freedom from interference by other state agencies. It may also require the support of other state agencies.

Neither judicial independence nor ecclesiastical independence is absolute. Both are subject to Parliament. And the ecclesiastical function is limited by ‘the constitutional rights of all [Her] Majesty’s subjects’, i.e by their human rights (cf Church of England (Assembly) Powers Act 1919, s.3(3)). So there is a common frontier between ecclesiastical law and human rights law, and again, some joint study may help avoid demarcation disputes. But they are still different subjects.

Being able to self-publish, at the click of a mouse, without having to wait for anybody else, has been a wonderful emancipation. However, any regular readers of this blog will be aware that its output has fallen sharply in recent years. Whereas posts were formerly published at a rate of 1 or more every month, they now barely average 1 in every 2 months. Just 1 post was published in the whole of 2020.

Ecclesiastical law offers limited blogging material. It does not change very often. Much of the legislation is rather dull and obscure, lawyers’ law, providing little food for thought. The most important piece of legislation in the last decade was, of course, the Bishops and Priests (Consecration and Ordination of Women) Measure 2014. Nothing dull or obscure about that. Yet the Measure is scarcely mentioned in this blog, because, whatever its political and religious significance, its few lines do not seem to raise any major legal or constitutional issue (at least, none apparent to the present author).

Thinking and writing become harder with age. There are ever-present temptations to

(1) rehash, and / or

(2) become a ‘keyboard warrior’, descending into the slightly sordid arena of ecclesiastical controversy or churchy politics.

But the present intention is to follow the wise advice quoted above – continue to make notes, and hope for inspiration for future blogposts, even if only on an occasional basis.

Grateful thanks are due to the aforementioned Law and Religion blog. Also to 2 highly informative blogs from rather different Anglican traditions, Thinking Anglicans and Ancient Briton, whose occasional references to this blog have considerably increased its modest readership. And, last but not least, to all readers of this blog.

To Make Provision: The Gentle Art of Synodical Government

The General Synod was formerly known as the National Assembly of the Church of England, or ‘Church Assembly’ for short. The Church Assembly first received statutory recognition under the Church of England Assembly (Powers) Act 1919, the so-called ‘Enabling Act’.

It got its present name from the Synodical Government Measure 1969, s.2. Its constitution is found at schedule 2 of that Measure. The 1969 Measure also constituted diocesan synods (formerly diocesan conferences) and deanery synods (formerly ruridecanal conferences).

What does the General Synod do?

Schedule 2 contains extensive, detailed regulation of the membership and procedure of the General Synod. By contrast, there is very little regulation of its function, what it actually does.

The 1919 Act suggested that the Church Assembly / General Synod has 2 functions, to

(1) ‘discuss any proposal concerning the Church of England, and to make provision in respect thereof, and … where such provision requires Parliamentary sanction, the authority of Parliament shall be sought …’

(2) ‘debate and formulate its judgment … upon any matter concerning the Church of England, or otherwise of religious or public interest’ (Appendix 14).

The phrase ‘make provision’ in function (1) is exceedingly vague. It could refer merely to advice or exhortation, or supporting activities of a missionary or charitable nature. Function (1) does refer to a legislative function (preparing Measures for Parliament), but the wording ‘where such provision requires …’ may suggest that this function is intended to be exceptional, to be resorted to only where a particular ‘provision’ cannot otherwise be achieved.

The 1969 Measure reiterates the twofold function. The phrase ‘make provision’ is retained, indicating that the vagueness is intentional. However, the 1969 Measure suggests that legislation is normal, rather than exceptional, to function (1).

Thus the General Synod is

‘to consider matters concerning the Church of England and to make provision in respect thereof’ by

(1) Measure, under the 1919 Act

(2) canon

(3) order, regulation or other subordinate instrument authorised by a ‘parent’ Measure or canon

(4) Act of Synod, regulation, or other instrument or proceeding, where Measure or canon is not required’ (sch 2.6).

The purely deliberative function (2) is now worded ‘to consider and express … opinion on any other matters of religious or public interest’. This function is as broad as the ‘make provision’ function is vague. (Perhaps the idea was that wide-ranging discussion would ensure a better quality of ‘provision’.)

Legislation or regulation by canon is an ancient legislative function inherited from the convocations (cf 1969 Measure, s.1(1)). The revised canons do contain a reasonably coherent code of law concerning worship and doctrine (which are, after all, the raison d’etre of the Church). They also contain useful summaries of the common law concerning ecclesiastical jurisdiction and ministry. But most ecclesiastical legislation now takes the form of Measures, and secondary rules and regulations made under the authority of Measures.

The diocesan and deanery synods both share the General Synod’s twofold function ‘to make provision’ and ‘to consider and express their opinion etc’ (ss.4(2) and 5(3)), though their constitutions do not confer any legislative power. Instead of legislating, the diocesan synod is ‘to advise the bishop on any matters on which he may consult the synod’ (s.4(3)(b)).

However, the diocesan synod does possess a number of specific regulatory powers conferred by various Measures. For example, the constitution and procedure of the diocesan parsonages board is prescribed by a scheme made by the diocesan synod (Repair of Benefice Buildings Measure 1972, s.1). The synod also has power to give directions to the finance board (Diocesan Boards of Finance Measure 1925, s.3(1)), and to most other diocesan committees.

The Church of England’s Parliament?

This glib description of the General Synod is familiar, but comparisons with Parliament can be misleading. Its legislative and deliberative functions resemble those of Parliament. However, there is nothing in either the 1919 Act or the 1969 Measure to support a constitutional doctrine of the General Synod’s supremacy over the Church, analogous to Parliament’s supremacy over the state.

The vagueness of the General Synod’s ‘make provision’ function hardly supports a claim of its supremacy. The fact that the function is shared with diocesan synods, and even with the lowly deanery synods, also undermines such a claim.

The 1919 Act positively denied the Church Assembly’s supremacy. It provided that ‘Nothing in this Constitution shall … diminish or derogate from any of the powers belonging to the convocations … nor shall the Assembly exercise any power or perform any function distinctively belonging to the bishops in right of their episcopal office’ (Appendix, para 15).

The 1969 constitution of the General Synod suggests that its function is not supreme authority but rather its opposite – balance. This is the reason why there is so much regulation of its membership and procedure, and so little of its function.

Thus the Synodical Government Measure seeks to maintain a balance of claims and interests between

(1) bishops and other clergy

(2) clergy and laity, and

(3) the 2 Provinces of Canterbury and York.

The 1919 Act is concerned with the balance between Church and state, hence the legislative procedure provided by the Act.

Other legislation extends the balancing exercise to the various national and diocesan committees (also variously described as boards, commissions, councils) constituted since 1919, and to the Church Commissioners. The membership of these bodies, like that of the synods, is subject to quotas of episcopal, clerical and lay representatives.

This gentle system of government, based on deference, deliberation and balance, suffered an unpleasant economic jolt in the early 1990s. Ecclesiastical investments sustained heavy losses in the intense property recession of that unhappy time. Clergy stipends were painfully cut across the board. In consequence, discussion of synodical government moved away from high-minded theological reflection on the laity, and started to focus instead on more mundane considerations of administrative efficiency and accountability.

The National Institutions Measure 1998 addressed the economic concerns by constituting a new national body, the Archbishops’ Council, ‘whose objects shall be to co-ordinate, promote, aid and further the work and mission of the Church of England’ (s.1(1)). The Council is the last major addition to the structure of synodical government. The 1998 Measure also made changes to the constitution and functions of the Church Commissioners.

The Synodical Government (Amendment) Measure 2003 reduced the membership of the General Synod, in an apparent attempt to make it function more effectively (though nothing was done to limit the excessively broad scope of the Synod’s deliberative function (2), and so encourage members to concentrate on governance matters).

Cabinet Government?

Economic difficulties connected to the recent coronavirus pandemic have encouraged renewed interest in efficiency and accountability in synodical government.

The recent report of a ‘Governance Review Group’ (GS2239, 2021) lamented that

’20 years on from [the National Institutions Measure] the Church of England still does not have a unified national governance structure, or a single focus of decision-making and strategic planning‘ (para 75) and

‘there remains a multitude of bodies all seeking to do the Church’s work but with a diverse set of accountabilities, structures and methods’ (para 78).

The solution to this problem is a vigorous policy of centralisation. Noting that the House of Bishops of the General Synod already has a standing committee of 15 members, ‘a suitable size to be a governance body’ (para 111), the report recommends a national ‘board of bishops’ (para 113), and the establishment of a new ‘Church of England National Services Governance Body’, known as CENS for short (para 133).

This may be a good idea (though it is unclear why a new national governance body has to be created, rather than making use of the existing one – the Archbishops’ Council). However, it is argued that any policy concerning national administration should address 2 questions

(1) Should the Church have a national administrative function at all?

(2) If yes, what should be the relationship between the national administration and the diocesan administration?

The report correctly observes that synodical government is a system of ‘widely dispersed authority’ (para 79). Its function is expressed in the vaguest terms. However, it is clear that synodical government is constructed around the institutions of pre-synodical government – Parliament, the convocations, the dioceses and the Commissioners. In particular, the General Synod is constructed around the convocations, the diocesan synod around the diocesan bishop.

The convocations had a legislative function, which now vests in the General Synod, but they had no administrative / executive function. The General Synod’s constitution likewise makes clear that the General Synod has a legislative function (Measures etc), but makes no specific allusion to an administrative / executive function. This is consistent with pre-synodical government.

In pre-synodical times, the diocese, not the nation or the province, was the ordinary unit of ecclesiastical administration. Indeed the diocesan bishop is described as ‘the ordinary‘ (canon C18(2)). The archdeacons, who assist the bishop, are likewise described as ordinaries (canon C22(8)). Thus legislative power in the Church was national and provincial. Administrative / executive power was diocesan.

There was virtually no supra-diocesan ecclesiastical administrative function before the 19th century. The Archbishops have a common law metropolitical jurisdiction ‘to correct and supply the defects of other bishops’ (canon C17(2)), but this has long been limited in practice to ad hoc intervention in response to a serious problem. Only when an intervention has been made does the Archbishop exercise ‘jurisdiction as ordinary’.

Apart from that, the Archbishops confirm the election of new bishops, and ordain (consecrate) them if they are not already in episcopal orders. Provincial courts hear appeals from the dioceses, but this is a judicial function rather than an administrative one. The Archbishop of Canterbury grants special marriage licences where banns and common licences will not suffice.

This account indicates another difference between the General Synod and Parliament. Parliament is supposed to hold the government (i.e the executive branch of government) to account. In England (though not in other parts of the United Kingdom), Parliament still functions in a unitary state with a central cabinet government. By contrast, there is no cabinet government in the Church. The Archbishops preside over the General Synod, as they presided over the convocations, and the bishops may be ‘frontbenchers’ in the Synod, but that is not the same thing. The bishops have no collective executive responsibility, only an individual responsibility for their own dioceses.

The Ecclesiastical Commissioners (now the Church Commissioners) were first constituted in the early 19th century, and given the national administrative function of effecting pastoral reorganisation, including the redistribution of ecclesiastical property. However, the Commissioners were constituted because the diocesan authorities had no ability to effect this reorganisation and redistribution themselves.

That National Institutions Measure and the Archbishops’ Council may have been an attempt to construct something like a system of ecclesiastical cabinet government. The recent governance report seems to propose something similar. (Imitation is the sincerest form of flattery.)

However, national administration cannot be considered in isolation from diocesan administration. Any expansion of national administration without a corresponding reduction in diocesan administration obviously risks duplication and increased expense.

If dioceses are permitted to make joint administrative arrangements inter se, agreeing on policies and pooling resources, this should reduce, not increase, the need for a strong central administration.

It is argued that, while centralisation of the national administrative function may be desirable, ecclesiastical administration as a whole should conform to the contours of both synodical government and pre-synodical government, with the diocese as the ordinary unit of administration. This means that administration at the national and provincial levels should be limited to

(1) functions which cannot be exercised at diocesan level (diocesan reorganisation is an obvious example – altering diocesan boundaries, merging dioceses or creating new dioceses)

(2) reviewing, or hearing appeals from, diocesan decisions (a quasi-judicial function) and

(3) intervention, to remedy a serious administrative failure within a particular diocese.

(This blogpost presupposes some knowledge of the history, constitution and procedures of synodical government. These subjects are discussed in other posts filed under this category. See also posts filed under the category ‘Parliament and the Church’.)

A Metropolitical Visitation of Monmouth

Church in Wales Report, The Monmouth Enquiry and Review (2021)

The Report relates that various ‘disclosures’ and ‘concerns’ were raised a few years ago about the then Bishop of Monmouth. It is not altogether clear what the Bishop was supposed to have done amiss, as the report is heavily redacted. His alleged conduct was much discussed and investigated, but no disciplinary proceedings were taken against him. He later retired on health grounds, to the regret of many in his diocese.

For some 800 years, the Church in Wales was part of the Province of Canterbury in the Church of England. Then in 1920, following a highly controversial Disestablishment, it was reconstituted as an independent, self-governing province of the Anglican Communion, with its own Archbishop.

The conservative, High Church character of the Constitution of the Church in Wales has been discussed elsewhere in this blog. The Constitution provides that

‘The ecclesiastical law as existing in England on 30th March 1920, with the exception of [certain 19th century statutes], shall be binding on the members … of the Church in Wales, and shall be applied to the determination of any question or dispute between them … insofar as it does not conflict with anything contained in the Constitution …’ (1(5)).

It also affirms ‘the powers and functions inherent in the office of Metropolitan [i.e Archbishop] … [and] in the Episcopal Office’ (2(37)).

The notion that Archbishops and bishops possess ‘inherent’ powers may owe more to Tractarian theology and romantic mediaevalism than to ecclesiastical law. However, it is argued that such powers are correctly understood as common law powers, or powers inherited from English law at Disestablishment. This interpretation is consistent with the Constitution’s earlier reference to ecclesiastical law.

In the case of Bishop of St. David’s (1699) 91 English Reports 126 – another Welsh case – English law affirmed that ‘By the common law, the Archbishop has a metropolitical jurisdiction … Archbishops are over bishops, as well as bishops are over the other clergy (p.127) … The Archbishop hath a provincial power over all bishops of his province …’ (p.711).

These authorities make clear that concerns about a diocesan bishop are a matter for the Archbishop, not any other ecclesiastical institution or officeholder, whether inside or outside the bishop’s diocese. Disciplinary proceedings against a bishop are now determined by a Disciplinary Tribunal, not by the Archbishop (9(9)). However, as mentioned, no such proceedings were commenced in this case, so the Tribunal and the Church courts were not involved.

The Archbishop’s metropolitical jurisdiction, like other ecclesiastical institutions, is exercised by a procedure known as visitation. Those subject to jurisdiction are said to be ‘visitable’. In the old days, a visitation resembled a judicial circuit. Modern communications now make it possible to exercise jurisdiction without going on a special trip. A visitation is essentially an inquiry.

The Constitution, conservative as always, provides that ‘Archiepiscopal visitations shall be held as heretofore, and the law and practice thereto shall be that prevailing on 30th March 1920’ (9(43)).

A metropolitical visitation / inquiry is exceptional. Visitations are normally carried out by archdeacons, not Archbishops. The Constitution provides that ‘Archdeacons shall conduct regular visitations of all parishes in their archdeaconries’ (9(43)). The bishop may decide to hold a visitation of his own. But archdeacons have no jurisdiction to visit the bishop, who is their superior. And of course the bishop cannot visit himself.

Hence the need of a metropolitical visitation. The revised canons of the Church of England suggest that the purpose of the Archbishop’s jurisdiction is ‘to correct and supply the defects of other bishops’ (C22(5)), i.e to intervene only when things are going badly wrong.

Although the jurisdiction is his alone, the Archbishop is free to consult others about its exercise. He may also delegate the jurisdiction to others. Persons exercising delegated ecclesiastical authority are traditionally known as ‘commissaries’ or ‘surrogates’.

Canon 128 of 1603 makes provision for ‘The Quality of Surrogates’, but this does not apply to those appointed by Archbishops and bishops, only to inferior delegated authority. The revised canons contain no equivalent of canon 128. So the Archbishop would seem to have an unfettered discretion in his choice of commissaries / surrogates, just as he is unfettered in his choice of consultees.

The Church in Wales report asks whether the Archbishop has a ‘free-standing’ power to suspend a bishop (pp.73-74). It noted that the Constitution empowers a bishop to suspend an officeholder in his diocese (9(39)), but confers no equivalent power on the Archbishop to suspend a bishop (though no power of suspension was actually required in this case, as the Bishop of Monmouth voluntarily recused himself from all official duties).

One of the Bishop’s supportive colleagues argued that the Archbishop did indeed have power to suspend him, under the ‘inherent powers’ provision cited above. Professor Norman Doe was more cautious: ‘it would require a very thorough search of the pre-1920 English ecclesiastical law … to determine whether an archbishop / metropolitan has any power … to suspend a diocesan bishop’.

However, modern ecclesiastical lawyers are fortunate that the late Sir Robert Phillimore did most of the searching for them. Phillimore relates that ‘In the bishop’s [visitation], as also in regal and metropolitical visitations, all inferior jurisdictions … are inhibited from exercising such jurisdiction, during such visitation’ (Ecclesiastical Law, 2nd edition 1895, p.1050).

This suggests that there is no discrete or ‘free-standing’ power to suspend a bishop, because none is needed. On the contrary, the very institution of the Archbishop’s visitation / inquiry automatically suspends the bishop’s exercise of his official functions. Visitation per se effects suspension.

Phillimore’s dictum refers to inhibition rather than suspension, but it is hard to see any material distinction between the two. They have the same practical effect, separation from official function. Indeed the revised canons do not seem to recognise any distinction, providing that ‘During the time of … visitation the jurisdiction of all inferior ordinaries shall be suspended …’ (G5(2)).

There is the apparent difficulty that automatic inhibition is not limited to the bishop, but applies equally to the archdeacons (because they exercise ‘inferior’ jurisdictions) and possibly to other diocesan officeholders as well, even though the visitation / inquiry is concerned only with the Bishop’s conduct.

However, Phillimore makes clear that the automatic inhibition is flexible. It can be appropriately limited or tailored to the scope of the visitation. Thus the visiting Archbishop may grant ‘relaxations … pending the visitation … an unlimited leave or commission to exercise jurisdiction … notwithstanding the visitation’. So the archdeacons could still get on with their work, and diocesan administration continue, with the bishop alone being inhibited. The Archbishop could even limit the inhibition of the bishop himself, by permitting him to continue with some of his functions but not others, or by attaching conditions to his performance of official functions.

Aga Saga: The Case of Llandaff Cathedral

It has been reported in the Western Mail (‘national newspaper of Wales’) that the Dean of Llandaff appeared before the Disciplinary Tribunal of the Church in Wales (or a committee thereof), to answer a complaint of financial misconduct made by his own Cathedral Chapter.

The Disciplinary Tribunal cleared the Dean of any wrongdoing. Indeed it found that he had no case to answer.

The Western Mail also noted that the Cathedral’s auditors had had no concerns, happily signing off the annual accounts year after year.

But the Chapter, like Wellington’s soldiers, did not know when it was beaten. It appointed a QC (not an accountant) to investigate the Cathedral’s finances.

The QC reported that, between 2016 and 2020, the Dean ‘apparently’ authorised expenditure of over £35,000 (‘at least’) from Cathedral funds without the Chapter’s approval, ‘as required in law’.

Most of the alleged expenditure benefited the Dean personally. Nearly two-thirds (£22,000-odd) went on work done to the deanery (his official residence), including the installation of an aga (‘a type of large cooking stove or range’, according to the dictionary) and wood-burning stove. Further sums were disbursed on furniture and artwork, travel and entertainment. And on a payment of £3,264 to a favoured member of the Cathedral staff, over and above his salary.

The Chapter published these embarrassing allegations on the Cathedral’s website (though it has not as yet published the report on which they were based). It is now seeking ‘restitution’, i.e repayment, of the money.

The Dean has denied his brethren’s claim against him, denouncing it as ‘unfounded’, ‘malicious’ (because of the apparent refusal to accept the Disciplinary Tribunal’s decision) and ‘defamatory’ (because of the publication).

This blog expresses no opinion on the substance of the allegations. However, if the QC’s report is correct, this carries the dramatic implication that both the Disciplinary Tribunal and the Cathedral auditors either

(1) failed to detect the unauthorised expenditure, or

(2) failed to appreciate the impropriety of it.

The Chapter’s claim is based on secular charities law, a large and complex subject that is quite outwith the scope of this blog. Instead we discuss how the Church in Wales’s own rules may apply to this case.

Llandaff Cathedral, like the other cathedrals of England and Wales, is governed by its own constitution. That constitution is itself part of the Constitution of the Church in Wales.

The present Cathedral constitution firmly states that ‘The responsibilities of the [Chapter] … shall include … control of all the Cathedral finances …’ (4(a)). However, that constitution was only approved in 2019. The alleged unauthorised expenditure began in 2016, 3 years earlier. The only published version of the Cathedral constitution at that time dates from 2001.

This 2001 version makes no direct reference to Cathedral finances at all. It describes the Dean as ‘the principal member of the Chapter … first in the number thereof’ (4(1)). The Dean chairs the Chapter, and has a casting vote if the Chapter is deadlocked (4(4)). He may ‘instruct, advise or admonish’ colleagues and staff, but ‘shall not take further proceedings [against them] without the consent of the Chapter’ (4(5)).

However, the constitution makes clear that the Cathedral ‘shall be governed, as heretofore, by the Cathedral Chapter‘, not by the Dean alone (2(1)). The Dean is primus inter pares, first among equals, but no more. The Chapter is ‘a college or society, the decision of the majority … shall be accepted as being the decision of the whole and shall bind all’ (6(7)). A Chapter meeting does not require the attendance of every member, but a meeting attended by only a minority of members ‘shall not conclude any business for which the consent of the majority is required’ (6(3)).

These provisions may suggest that the Dean could not authorise expenditure from Cathedral funds without the knowledge and consent of a majority of the Chapter. However, the constitutional position is not as simple as that. The Cathedral is not governed by its constitution alone. The published constitution is the principal instrument of governance, but it is very far from being the only one.

The 2001 preface makes clear that the Cathedral is governed by ‘statutes, ordinances and [unwritten] customs’, as well as by its published constitution. The only limitation is that the statutes etc may not be ‘contrary to, or inconsistent with’ the constitution.

The Bishop and the Chapter may jointly make or alter these secondary rules (3(8)). Not only that, but the Chapter may make ‘orders, regulations and byelaws’ (6(6) – tertiary rules?!) without reference to the Bishop.

Statutes, ordinances, customs, orders, regulations, byelaws … It is not impossible that, somewhere in this veritable jungle of unpublished self-regulation and unwritten custom, an authority may be found entitling the Dean, in a particular case, to expend Cathedral funds without the authority of the full Chapter, or even unilaterally.

Perhaps the Disciplinary Tribunal was alluding to this possibility when it reportedly referred to a ‘somewhat antiquated accounting system which oversaw a lack of a proper framework for the claim and payment of expenses’. (The full text of its decision, like the QC’s report, is yet unpublished.)

Whatever the truth of the Chapter’s allegations, this case illustrates the besetting weakness of all cathedral governance. Recent reforms promise to impose ever more rigorous ‘accountability’ on deans and chapters, but they complacently accept the fundamental obstacle to such accountability – the anachronistic mediaeval independence of cathedral authorities of the wider Church. Parishes are not allowed to make up their own little private rules and customs, only cathedrals.

As is well known, the cathedral is both

(1) the seat or cathedra of the bishop (hence its name) and

(2) the parish church, or ‘mother church’, of the diocese.

Yet it remains constitutionally independent of both the bishop and the diocese, like a little Vatican. (See other posts on this blog, filed under the category of ‘Cathedrals’.)

The Chapter governs the Cathedral but not the deanery. The deanery comes under the jurisdiction of the diocesan parsonage board. The Constitution of the Church in Wales provides that the parsonage board has ‘the general oversight and management of parsonages’ (4A, 26). Deaneries are expressly included in the definition of ‘parsonage’ (7, 1(d)).

The Dean would not need the board’s permission merely to introduce movable furniture and paintings into the deanery (though the Constitution provides that ‘sales by auction of furniture in a parsonage shall not be permitted’ (7, 23(7)).

However, he certainly would need the board’s permission for work of a structural nature. The Constitution provides that an incumbent (i.e the Dean) ‘shall not make any structural alteration or addition to the [deanery] or to the permanent fittings thereof, without the consent of the Board’ (7, 23(4)).

Moreover, the board’s function of oversight and management obliges it to ensure that ‘work duly authorised to be done to … parsonage [is] properly carried out’ (4A, 26). So the work would require the board’s supervision, not just its consent.

However, the board would be under no obligation to ask where the money was coming from, or report to the Chapter. (Thus the constitutional independence of the Cathedral works both ways – just as the Chapter is unaccountable to the diocese, so the diocesan authority is unaccountable to the Chapter.)

The Llandaff Cathedral case involves not only the Chapter’s claim against the Dean, but the Dean’s claim against the Chapter, whose publication cannot but cause grave reputational damage. Defamation, like restitution, is a matter for the secular courts. But does the Dean have any recourse to the Constitution?

The Constitution empowers the diocesan court ‘to hear and determine … any dispute between a member of the Church in Wales and the diocesan … board[s], deanery conference or chapter, vestry or parochial church council …’ (9, 22(d)). An appeal lies to the Provincial Court (9, 32(1)). This is presumably a sort of grievance procedure.

However, the diocesan court has no jurisdiction to determine a grievance against the Cathedral Chapter – because, of course, the Chapter is independent of the diocese. (A deanery chapter is not the same as a cathedral chapter.)

Any grievance against the Chapter therefore has to be addressed to the Bishop, who is ex officio the Visitor of the Cathedral. The present Llandaff constitution confirms that ‘the existing powers of the Bishop as Visitor … shall continue as in times past [i.e since the middle ages]’ (1(a)).

If the Bishop-Visitor is unable to resolve the grievance, or is perceived to lack impartiality, then the Archbishop of Wales might intervene, under ‘the powers and functions inherent in the office of Metropolitan’ (cf 2, 37). The Church of England offers a fairly recent precedent for this. In 1996 the Archbishop of Canterbury held a metropolitical visitation of Lincoln Cathedral which, like the present case, concerned a rancorous dispute over expenditure.

Apostolicae Curae 1896: A Vicar is not a Catholic Priest

This year marks the 125th anniversary of the famous (or infamous) papal letter concerning Anglican Orders. The centenary in 1896 was commemorated by an impressive collection of essays contributed by distinguished Anglican and Roman Catholic commentators, and edited by R William Franklin (‘the Centenary Essays’). This publication included English translations of both Apostolicae Curae and Saepius Officio, the Anglican response thereto.

Pope Leo XIII

Gioacchino Vincenzo Pecci (1810-1903) was elected Pope in 1878, and took the name Leo XIII. The choice of name presaged a confident and ambitious policy of advancing the position of the Church – and the Pope – in the hostile and atheistic modern world.

Despite physical frailty, he reigned for a quarter of a century (nearly as long as St. John Paul II) and lived longer than any of his predecessors. His aristocratic dignity, personal austerity, immense learning and political wisdom commanded the respect of his contemporaries. (Perhaps helped by an uncanny physical resemblance to Voltaire.) He easily outshone the unimpressive Head of the newfangled Kingdom of Italy. The latter grumbled peevishly that ‘[people] … come to see him, not me. It is he who still rules in Rome; I have only the edge of the chair to sit on’ (D.A Binchy, Church and State in Fascist Italy, OUP 1941, p.34).

Leo XIII’s greatest encyclical, Rerum Novarum (1891), on the treatment of workers and their families, is moving to read and the cornerstone of modern Catholic social teaching:

‘To defraud anyone of the wage due him is a great crime that calls down avenging wrath from Heaven … workers are not sufficiently protected against injustices and violence … their property, being so meagre, ought to be regarded as all the more sacred’ (para 32).

He also shaped the intellectual life of the modern Church in 2 encyclicals

(1) Aeterni Patris (1879) concerned the study of theology, and the correct relationship between faith and reason. St Thomas Aquinas is commended as a role model for scholars, but the scholastic method is not compulsory. On the contrary, any scholastic thesis of ‘too great a subtlety’, or which is ‘improbable’, should not be followed (para 31).

(2) Providentissimus Deus (1893), on the Bible and the ‘historical’ method of interpretation. Biblical accounts of natural events may be accepted as ‘figurative’ and not literally true. But the Bible must be studied holistically. Heresy is essentially the result of reading particular Biblical passages out of their context. In studying the Bible, scholars should ‘by all means … make use of … apposite erudition of an external sort’ (para 13), and even non-Catholic commentaries may be studied, though caution is required (para 15).

Another 2 encyclicals should be required reading for all students of ecclesiastical governance

(1) Immortale Dei (1885), on the relationship of the Church to international law, and

(2) Satis Cogitum (1896), which explains the Apostolic constitution of the Church, and the relationship between the Pope and the bishops (and anticipated the teaching of the Second Vatican Council on this subject).

Leo XIII’s interactions with ‘the noble people of England’, as he described them, were generally happy. One of his first acts as Pope was to confer the Red Hat on Newman, vindicating the latter’s reputation after decades of Roman suspicion and hostility. As a young diplomat he had visited London and been received by Queen Victoria. As Pope he opposed the nationalist cause of Catholic Ireland. (His experience of its anti-clerical Continental equivalents would not have disposed him to favour it.) No doubt grateful for this support, the Queen even signed herself ‘de votre saintete la fidele amie‘, in a letter to him on the Golden Jubilee of his priesthood in 1887 (Binchy, p.33). Shortly before his death, he welcomed her son, King Edward VII, to the Vatican – the first ever meeting between the Successor of Peter and the Supreme Head of the Church of England.

Apostolicae Curae

However, in the context of Anglican – Roman Catholic relations, Pope Leo is now remembered only for his controversial conclusion that

‘ordinations performed according to the Anglican rite have been, and are, completely null and void’ (para 36).

The ‘Anglican rite’ is that contained in the Ordinal, which was first authorised in 1549.

The Pope gave 3 reasons for this withering conclusion:

(1) Custom, ‘the best interpreter of law’ (para 16). His predecessors had always refused to recognise Anglican Orders. Anglican clergy who wish to become Catholic priests were and are required to be ordained again. Yet the Sacrament of Orders cannot be repeated any more than Baptism. Therefore, if Anglican Orders were valid, ‘it was … quite impossible that the Apostolic See should tacitly allow or tolerate such a custom [of reordination]’. The Roman custom of reordination proves that the Anglican rite is not effective to confer the Sacrament.

(2) Intention. The very introduction of the 1549 Ordinal indicated a repudiation of Catholic priesthood. If the Church of England had intended to keep the Catholic priesthood it would have kept the mediaeval ordination rite, not introduced a new rite.

(3) Form. The Anglican Ordinal ‘ha[s] been deliberately stripped of everything which … sets forth the dignity and functions of the priesthood’ (para 27). This means that it lacks the form of the Catholic Sacrament.

In the original 1549 Ordinal, the ordination formula was merely ‘Receive the Holy Ghost’, with no explicit reference to priesthood. The clarifying words ‘for the office and work of a priest’ were only added in 1662, but this came too late to repair the defect of form, and ‘rather proves that the Anglicans themselves had recognised that the first form had been defective and unsuitable’ (para 26).

Saepius Officio

The then Archbishops of Canterbury and York, Temple and Maclagan, replied to Apostolicae Curae with a letter of their own, Saepius Officio (1897), an encyclical addressed ‘to the whole Body of Bishops of the Catholic Church’, rather than to the Pope personally.

Unsurprisingly, they rejected both the conclusion of ‘our Venerable Brother’ (para 3), and his reasons therefor

(1) Custom. The Holy See did not unequivocally reject the 1549 Ordinal during the brief revival of its authority over the English Church in the reign of Queen Mary Tudor (1553-1558). Papal instructions concerning the 1549 Ordinal ‘are imperfectly known’ (para 6). Of the clergy ordained according to that rite ‘some, and perhaps the majority, remained in their benefices without reordination’, though it is conceded that some clergy were reordained (‘how slippery and weak the judgment of the Church of Rome has been in this matter’ – not at all a good interpreter of law).

(2) Intention. Merely reforming the ordination rite does not amount to a repudiation of Catholic priesthood: ‘the intention of the Church must be ascertained … from its … definite pronouncements … not from its omissions and reforms’ (para 8). So far from repudiating Catholic priesthood, the Preface to the Ordinal manifests the intention that ‘these Orders of ministers in Christ’s Church; Bishops, priests and deacons … may be continued … in the Church of England …’ (cf para 20).

(3) Form. The validity of an ordination rite cannot be decided solely by reference to the contemporary Roman rite. Different forms of ordination have been practised at different times and places in the Church’s history, without any suggestion that the ordinations are invalid. Eastern ordination rites differ from the Latin rite, yet they have always been accepted as valid (cf para 20).

Moreover the Roman rite itself has changed over time. The references to priesthood to which the Pope attached such importance were not even Roman in their origin, but ‘Gallican embellishments … [with] added ceremonies borrowed from the Old Testament in order to emphasise the distinction between people and priests’ (para 19). The earliest Roman rite, like the 1549 Ordinal, made no explicit reference to priesthood. The compilers of the Ordinal ‘went back almost to the Roman starting-point’, i.e the early Roman rite was itself a model for the Anglican rite.

Fortified by these arguments, Their Graces delivered a robust retort to Leo XIII:

‘in overthrowing our Orders, he overthrows all his own, and pronounces sentence on his own Church’.

(Upon reading Saepius Officio, the Pope is said to have remarked that he wished his cardinals could write such good Latin. But he did not change his mind about Anglican Orders.)

A Century On

Despite the Archbishops’ professed indifference to Apostolicae Curae (‘we are not at all disturbed by the opinion expressed in that letter’ (para 2)), Leo XIII’s rejection of its Orders did touch a raw nerve in the Church of England. According to Paul Bradshaw it prompted ‘a firm desire to make 20th century revisions of Anglican ordination rites impregnable against any further attacks on the same grounds … throughout the processing of drafting [modern rites] the shadow of Apostolicae Curae hung over the drafters’. Apparently the drafters themselves admitted as much (Centenary Essays, p.75).

Apostolicae Curae also seems to have encouraged the involvement of ‘Old Catholic’ bishops in Anglican ordinations. The Old Catholics broke away from the Roman Catholic Church in the 18th and 19th centuries, but their Orders are nevertheless recognised by Rome, and they themselves recognise Anglican Orders. For this reason Old Catholic bishops have been invited to join in the laying on of hands of new Anglican bishops. Apparently all Church of England bishops can now claim an Old Catholic pedigree (p.70).

One Anglican commentator suggested optimistically that ‘the participation of Old Catholic bishops in Anglican consecrations during this [20th] century has meant that there has been a confluence of traditions through the mutual co-consecrations of Anglican and Old Catholic traditions … offer[ing] the Roman Catholic Church an opportunity to place [Apostolicae Curae] against the background of a broader canvas …’ (p.27).

However, Father Edward Yarnold SJ poured scorn on the practice: ‘it presupposes a crude ‘pipeline’ … it would be crassly materialistic to envisage Apostolic Succession as an unbroken chain of physical contact … reaching back to one of the Apostles’ (p.70). He evidently did not think much of Old Catholic bishops, dismissing them as ‘unattached dilettanti … episcopi vagantes‘ (pp.70-1).

Yet for all the Anglican defensiveness, Apostolicae Curae seems to have caused greater difficulty for the Catholic Church itself. It jarred painfully against the heady optimism and friendly engagement of the postwar ecumenical era. A Catholic commentator related that ‘Catholic theologians who have been engaged in ecumenical dialogue with members of the Anglican Communion are now considerably embarrassed by Leo XIII’s negative findings’ (p.123).

Nor is the embarrassment purely social. Modern research, impressively surveyed in the Centenary Essays, seems to vindicate Saepius Officio completely. Leo XIII’s criticisms of the Anglican Ordinal are now apparently destitute of scholarly support.

Thus a Catholic contributor observed of the Centenary Essays that ‘None of these papers has defended the contemporary adequacy of Apostolicae Curae‘s historical reasoning or theological arguments’ (p.123). Another Catholic was particularly critical of his late Supreme Pontiff: ‘Leo XIII was trapped in … a defective theology of tradition … indefinitely delaying the reconciliation of the Churches’ (p.47).

It is therefore not surprising that the suggestion ‘Is it not now time … to reopen the issue of Anglican Orders?’ (p.123) came to enjoy widespread Catholic support (even from some cardinals, apparently).

Papal Teaching Authority

The suggestion may seem plausible, in view of the scholarly consensus. But it faces a fundamental difficulty. Leo XIII was fully aware of the modern intellectual challenges to Catholic teaching (hence his 2 encyclicals mentioned earlier). He knew very well that he would be accused of being out of date and ‘trapped in tradition’. (Such criticisms of papal teaching are nothing new.) Yet in Apostolicae Curae he declared unequivocally that the question of Anglican Orders may not be reopened:

‘the present Letter and the whole of its contents cannot at any time be attacked or impugned on the ground of … any defect whatsoever … it shall be now and for ever in the future valid and in force, and … to be inviolably observed … by all persons …’ (para 40).

Canon law makes clear that Catholic faith demands trust in papal teaching. Canon 752 of the 1983 Code provides that

‘a religious submission (obsequium) of intellect and will is to be given to any doctrine which the Supreme Pontiff … declare[s] upon a matter of faith and morals … Christ’s faithful [must] avoid whatever does not accord with that doctrine’.

The official Latin word obsequium connotes obedience, not mere respect. Canon 754 also obliges the faithful ‘to observe the constitutions and decrees … issue[d] for the purpose of proposing doctrine or proscribing erroneous opinions: [especially] those published by the Roman Pontiff ….’.

So does acceptance of Apostolicae Curae mean retreating into an anti-intellectual papalism? Simply ignore the inconvenient modern research. Rome has spoken, the case is closed. Peter has spoken through Leo. No, that would be both absurd and wrong. Faith must not be divorced from reason (as Leo himself made clear).

Yarnold pointed the way out of the apparent Catholic difficulty (even if he was unaware that he did so), when he asked rhetorically ‘what does it mean to say [Anglican] Orders are invalid?’ (p.73).

This is the right question to ask. Leo XIII’s well-known phrase ‘absolutely null and void’ obviously has a negative and dismissive sound. It would not, presumably, appear in a papal document today. But never mind how it sounds. What does it actually mean?

It is argued that it means simply this: a vicar is not a Catholic priest.

If Leo XIII’s conclusion is understood thus, the difficulties with Apostolicae Curae fall away. Acceptance of it requires minimal, if any, Catholic obsequium. It requires no rejection of modern scholarship. The conclusion does no more than state an obvious – blindingly obvious – fact.

The fact was not obvious in the 1550s. This would explain any Roman inconsistency towards clergy ordained according to the 1549 Ordinal. Even today, of course, it is not obvious to quite everyone. Anglican clergy will say that they are Catholic priests. They are just not Roman Catholic priests. But it can hardly be denied that ‘the noble people of England’, including the majority of faithful Anglican churchgoers, recognise no distinction between ‘Catholic’ and ‘Roman Catholic’.

Apostolicae Curae closed the question ‘is a vicar a Catholic priest?’ (of course not), but not the question ‘why is a vicar not a Catholic priest?’. (Or perhaps, ‘why is a vicar not a priest in the Roman Catholic sense?’.) The modern reaction to Apostolicae Curae suggests that the question is much in need of fresh study.

To answer this question, it is necessary to distinguish between

(1) the constitutional structure of the Anglican ordained ministry (which is indeed Catholic) and

(2) its function (which is not).

To make this distinction, it is in turn necessary to read the Ordinal in the context of the other 2 ‘historic formularies’ of the Church of England, the Book of Common Prayer and the 39 Articles. The Ordinal defines the structure of Anglican ministry. The other 2 formularies define its function.

Anglican Ministry: Catholic Structure, Protestant Function

What is a priest? Jean Guitton (a Catholic) observed that ‘since the Reformation, the idea of the priest [has] been put in question. The whole Reformation centres around that’ (Dialogues (1967), English translation 1968, p.242).

The unique and essential function of the Catholic priest is to represent Christ. The priest is said to act in persona Christi. Canon 901 affirms that the priest ‘in the person of Christ can confect the Sacrament of the Eucharist’.

This function is closely linked to the mystery of the Crucifixion, hence to Christ’s Sacrifice. At the altar the priest re-presents Christ’s Sacrifice upon the Cross. Canon 897 refers to ‘the Eucharistic Sacrifice … in which the Sacrifice of the Cross is for ever perpetuated’. Canon 899 affirms that ‘In [the Eucharist] Christ the Lord, through the ministry of the priest, offers Himself, substantially present under the appearance of bread and wine, to God the Father …’.

The classic Protestant view of this priestly function is that it is blasphemous. A mere man cannot represent God, or mediate between God and man.

The pejorative English word impersonate may bring the Protestant objection into sharp focus. The word implies pretence and deceit. A fraudster impersonates someone else in order to practise a criminal deception. An actor or comedian does so to amuse an audience. To impersonate Christ is both fraudulent and a blasphemous mockery. Thus Western Christendom divided over a function essential to Catholics but intolerable to Protestants.

However, although united in their rejection of the ‘impersonating’ function of the priest, Protestants could not agree on how to reform the Church’s ministry. Some were so distressed by the blasphemy that they sought to eradicate all trace of Catholic priesthood, root and branch. This meant abolishing its structure as well as its function.

The Church of England, of course, declined to follow this fundamentalism. It was more sensitive to history. (Newman once observed that ‘to be deep in history is to cease to be a Protestant’.) The Preface to the Ordinal states that the Orders of bishop, priest and deacon have existed in the Church ‘from the Apostles’ time’. Therefore they should not be abolished but continued.

By retaining the Catholic ministerial structure, the Church of England distanced itself from other reformed Churches. The modern British Constitution bears witness to this. There is much talk now of Scottish independence. This refers to the secular states of England and Scotland, which were united by the Act of Union 1707. However, the ecclesiastical states of England and Scotland, i.e their Churches, have always been strictly independent of each other. Their separation, though little discussed, is a fundamental constitutional principle.

There are no bishops or priests in the Church of Scotland. It has a Presbyterian ministerial structure. The Anglo-Scottish Union was, in part, a religious settlement. Macaulay observed that ‘the nations [of England and Scotland] are one because the Churches are two’.

The Preface to the Book of Common Prayer records the Church of England’s tenacious adherence to its Catholic ministerial structure. The structure was triumphantly reasserted in 1662 ‘upon His Majesty’s [King Charles II’s] happy Restoration’, following ‘the late unhappy confusions’ and ‘usurped powers’ of the Cromwell era. The clarifying words of ordination ‘for the office and work of a priest’ were part of this reassertion.

The 24th August 1662 has been described ironically as ‘the St Bartholomew’s Day massacre’. The Act of Uniformity came into force on that day. All clergy who dissented from it were summarily ejected from their benefices (s.3), (though nobody was literally massacred, unlike the French Protestants in the previous century). Any would-be minister who lacked episcopal ordination was thenceforth ineligible for ecclesiastical preferment, and was also forbidden ‘to consecrate and administer the Holy Sacrament of the Lord’s Supper’ (s.10).

The Church of England undoubtedly bears a closer resemblance to the Catholic Church than do most other Reformed Churches, on account of its ministerial structure. Without this structure, the question of Anglican Orders would never even have arisen. (Certainly there does not seem to be much discussion of the validity of Scottish Orders!)

This resemblance to the Catholic Church was acknowledged by the Second Vatican Council, which met in the 1960s. It held that ‘Among those [Reformed Churches] in which some Catholic traditions and institutions continue to exist, the Anglican Communion occupies a special place’ (Decree on Ecumenism, Unitatis Redintegratio 1964, para 13).

The then Cardinal Ratzinger wrote of the Anglican Communion that ‘the survival of the episcopate retains the fundamental structure of the pre-Reformation Church [which] assures a fundamentally positive attitude to the doctrinal tenets of the pre-Reformation Church’ (Church, Ecumenism and Politics (1987), English translation 1988, p.73).

On this modern Catholic view, then, the Anglican ministry is a sympathetic and respectful reminder of the pre-Reformation priestly function, on account of its Catholic structure. As such, it is a basis for ecumenical hope and engagement. (It also makes possible an imaginative reconstruction of the priestly function in Anglo-Catholic worship.)

Nevertheless, though it retained the Catholic ministerial structure, the Church of England, with the other Reformed Churches, did repudiate the function that originally went with it, that of representing or impersonating Christ.

The Priestly Function and the Formularies

It is true that the Ordinal itself contains no explicit repudiation of the Catholic priestly function. As we have seen, Pope Leo XIII’s arguments for an implied repudiation ran into strong counter-arguments.

However, the counter-arguments suffer from the same weakness as Apostolicae Curae. They consider the Ordinal only in isolation, or in the context of other, and earlier, ordination rites. They ignore the relationship between the Ordinal and its contemporaries, i.e the other Anglican historic formularies.

As canon A4 of the revised canons points out, the Ordinal is ‘annexed’ to the Book of Common Prayer. It must therefore be read in the context of the Prayer Book. And the Prayer Book itself must be read in the context of the 39 Articles.

The words of the 1662 Ordinal ‘for the office and work of a priest’ make clear that the priest is ordained to a function, not to a structure. But they also beg the question. What is the function of the priest? The Ordinal is concerned with ministerial structure. The ministerial function is determined by the other 2 formularies.

These 2 formularies repudiate the Catholic priestly function explicitly and unequivocally. They prove the obvious fact that Apostolicae Curae, whatever its limitations, sought to point out.

The 39 Articles, the most overtly Protestant of the formularies, contains a full-throated denunciation of

‘the sacrifices of Masses, in the which … the priest did offer Christ for the quick and the dead, to have remission of pain or guilt, [are] blasphemous fables and dangerous deceits’ (Article 31).

On the contrary, Christ’s Sacrifice is ‘once made … that perfect redemption … for all the sins of the whole world’. His Sacrifice is ‘finished upon the Cross’. It cannot be re-made or perpetuated by the priest.

In the Eucharist the consecrated bread and wine have ceased to be ordinary food. They are ‘the sign or Sacrament’ of the Body and Blood of Christ (cf Article 29). However, they are not the Body and Blood of Christ per se. ‘The Body of Christ is given, taken and eaten … only after an heavenly and spiritual manner. And the mean whereby the Body of Christ is received and eaten … is faith‘ (Article 28). This again denies the mediating or in persona Christi function of the priest.

The Prayer Book echoes the teaching of the Articles. The Eucharistic Prayer recalls Christ’s ‘full, perfect and sufficient Sacrifice, oblation and satisfaction, for the sins of the whole world’. The Eucharist is ‘a perpetual memory of that His precious death, until His coming again’. The consecrated elements are administered to the communicant with the words ‘feed on [Christ] in thy heart by faith‘.

The final rubric of the Communion Service is even more explicit: ‘the Sacramental Bread [and] Wine remain still in their very natural substances, and therefore may not be adored … for that were idolatry …’.

Thus the communicant who receives the consecrated bread and wine with a faithful disposition thereby receives the Body and Blood of Christ in his heart, by a metaphysical grace.

The 2 Archbishops pointed out in Saepius Officio that the Communion Service does refer to a Eucharistic Sacrifice, notwithstanding the deprecatory reference to ‘the sacrifices of Masses’ in the Articles. The Anglican Eucharist is not merely ‘a bare commemoration of the Sacrifice of the Cross’:

‘[1] we offer a ‘Sacrifice of praise and thanksgiving

[2] then we set forth and reproduce before [God] the Father the Sacrifice of the Cross …

[3] finally we offer the sacrifice of ourselves [‘ourselves, our souls and bodies’] to the Creator … a sacrifice which we have already signified by the oblations of His creatures [of bread and wine]’ (para 11)

So what is the Anglican priestly function, and how does it differ from the Catholic equivalent?

It is argued that the critical difference is that the Anglican priest acts in persona Ecclesiae, in the person of the Church, not in persona Christi. He cannot act in persona Christi, because Christ’s Sacrifice is once for all, finished. Christ is the only true Sacerdos.

There is an Anglican Eucharistic sacrifice, but again, that sacrifice is radically different from the Catholic equivalent. The Anglican priest does 2 things at the altar (or ‘holy table’, as it is officially described in the revised canons):

(1) he recalls the Church, in the presence of God, to the once-for-all Sacrifice of Christ and

(2) he offers the Church’s own sacrifice of praise and thanksgiving, and also its practical self-sacrifice, in response to Christ’s Sacrifice.

Recalling Christ’s Sacrifice, and responding to it. The Anglican priestly function is good and edifying as far as it goes. But it still repudiates the Catholic function. It refers to 2 distinct sacrifices, that of Christ and that of the Church. The Catholic Eucharistic Sacrifice is indivisible, one and the same as the Sacrifice of Christ.

Thus, despite their similar constitutional structures, the Anglican priest and the Catholic priest are in different, indeed opposite, places. The function of the Catholic priest is to bring Christ to the Church. The function of the Anglican priest is to bring the Church to Christ.

This radical difference of function answers the question of Anglican Orders. A Catholic priest is a Catholic priest because he has been ordained to bring Christ to the Church. An Anglican priest is ordained to bring the Church to Christ. Logic dictates the inevitable conclusion: an Anglican priest is not a Catholic priest.

Theological opinion has, of course, changed considerably since the Reformation. Nobody in the Anglican Church now suggests that the Catholic priestly function is blasphemous and fraudulent. And since Victorian times there have been Anglo-Catholic clergy who genuinely and devoutly believe the Catholic doctrine of priesthood, and believe that they exercise the Catholic priestly function in the Eucharist.

However, the Anglican priesthood and the Anglican Eucharist remain constituted by the historic formularies. They are not determined by current theological opinion, nor by the opinion of the individual vicar (however devoutly held).

The Anglican priestly function is now mostly exercised according to modern liturgies, not the Book of Common Prayer. However, these liturgies are required by law to be doctrinally consistent with the historic formularies (Worship and Doctrine Measure 1974, s.4(1)). They do not in terms reinstate the Catholic priestly function.

Celebrating the Lord’s Day: The Ecclesiastical Regulation of Sunday

‘The Lord’s Day … is ever to be celebrated as a weekly memorial of our Lord’s Resurrection … particularly by attendance at Divine Service …’ (canon B6(1))

This blogpost is intended merely to provide a coherent narrative of the subject, rather than to say anything new. It therefore makes points that are discussed in more detail elsewhere on the blog.

The restrictions on Divine Service imposed as a result of the coronavirus situation are not discussed here. The legal basis of such restrictions – if they have one – is secular, not ecclesiastical.

If the restrictions are gradually being relaxed, now is arguably an appropriate time to pay renewed attention to the Sunday ecclesiastical laws.

Church Attendance

In the case of Jarrett v Steele (1820) 161 English Reports 1290, Sir John Nicholl, Dean of the Arches, held that ‘the possession of the [parish] church is in the [incumbent] and the churchwardens …’. In a later case he asserted the incumbent’s priority over the churchwardens. The incumbent ‘has, in the first instance, the right to possession of the key [to the church], and the churchwardens have only the custody of the church under him’ (Lee v Matthews (1830) 162 English Reports 1119 at p.1120).

Parishioners have rights over the church too. In Cole v Police Constable 443A (1936) 3 All England Reports 107, Mr Justice Goddard (later Lord Chief Justice Goddard) held that ‘the parishioner’s right to attend his parish church … may be described as a common law right. The church, by being dedicated to sacred uses, is being dedicated to the use of parishioners to be there for [public] worship …’. However, Jarrett v Steele held that ‘no person has a right to enter [church] when it is not open for Divine Service’, e.g for private prayer.

Thus all legal rights over the parish church serve the same purpose – the celebration of Divine Service. The rights of the incumbent and the churchwardens give effect to the parishioners’ right.

The churchwardens are responsible for managing church attendance. Their duty is ‘[to] maintain order and decency … during the time of Divine Service’ (canon E1). The stave, symbol of the churchwarden’s office, alludes to this function of keeping order. Churchwardens are assisted in their task by the parish sidesmen (canon E2).

Thus the churchwardens arrange seating (canon F7(1)). Parishioners, as is their right, enjoy priority over non-parishioners, who attend only on licence (cf canon F8(3)). Legal rights to occupy particular pews are still possible. The incumbent decides who gets to sit in the chancel.

If there is serious disorder, the churchwardens may require assistance from the secular law. ‘Riotous, violent or indecent behaviour’ in church is a criminal offence (Ecclesiastical Courts Jurisdiction Act 1860, s.2). The bishop has power (virtually never used) to exclude ‘notorious offenders’ from Holy Communion (canon B16). However, the exclusion of a parishioner from Divine Service will require a secular injunction, because such exclusion deprives him of a legal right.

Divine Service is, of course, the responsibility of the incumbent (cf canon C24). Just as the churchwardens are assisted by sidesmen, so the incumbent may be assisted by other clergy (e.g an assistant curate) and by licensed lay ministers. If the benefice is part of a team or group ministry, the responsibility will be shared with the other ministers of the team or group (Mission and Pastoral Measure 2011, ss.34 and 35).

The churchwardens have no direct responsibility for Divine Service, even if the incumbent fails in his. Theirs is ‘an office of observation and complaint, but not of control, with respect to Divine Worship … if the minister introduces any irregularity into the service, they have no authority to interfere, but they may complain to the ordinary’ [i.e the bishop] (Hutchins v Denziloe and Loveland (No 1) (1792) 161 English Reports 514, at p.516).

Only if there is a vacancy in the benefice, with no incumbent or licensed priest-in-charge, may the churchwardens acquire responsibility for the provision of Divine Service, and even this depends on the bishop’s direction or request (cf Mission and Pastoral Measure 2011, s.86(2): Dale’s Law of the Parish Church (7th edition 1998, p.73).

In discharging their respective functions, the incumbent and churchwardens must have ‘due regard’ to the ‘safeguarding’ guidance issued by the House of Bishops (Safeguarding and Clergy Discipline Measure 2016, s.5(1)).

Nowadays the time of Divine Service is invariably advertised on a notice placed near the church door (and online). However, a bell is the traditional mode of announcement. (In the old days many parishioners might be unable to read a notice.) The church should therefore have ‘at least 1 bell to ring people to Divine Service’ (canon F8). The bell usually starts ringing 5 or 10 minutes before Divine Service begins. All other bellringing is a matter for the incumbent’s licence. Canon F8 confirms that ‘No bell … shall be rung contrary to the direction of the [incumbent]’.

Divine Service

Provision. Canon B11 and canon B14 require services of Morning and Evening Prayer, and of Holy Communion, on all Sundays. Service must be held ‘in at least 1 church in each benefice or … plurality [of benefices]’. These requirements may be dispensed with for ‘good reason’, but Sunday worship must not be discontinued altogether, even on an occasional basis. The incumbent must provide at least 1 Sunday service.

The revised canons make similar provision for Divine Service in the cathedral, which is the parish church of the diocese (canons B10 and B13). The Cathedrals Measure 2021 empowers the chapter to ‘order the worship of the cathedral’ (s.11(1)(a)). The dean must ‘ensure that Divine Service is duly performed’ (s.12(2)(a)).

Divine Service in a shared building will be regulated by the sharing agreement, which agreement ‘may dispense, to such extent as may be necessary, with the requirement to hold certain [Sunday] services …’ (Sharing of Church Buildings Act 1969, s.4(2)).

Divine Service in an extra-parochial place, such as a college or hospital, will be regulated by the bishop’s licence to the chaplain thereof (Extra Parochial Ministry Measure 1967, s.2).

In a mission initiative, Divine Service will be determined by the bishop’s order constituting the mission (Mission and Pastoral Measure 2011, s.80(13)).

Sunday Communion in private chapels (as distinct from extra-parochial places) is discouraged, ‘so that the residents in the said house may resort to their parish church and there attend Divine Service’ (canon B41(1)).

Form. Church of England services are authorised by canon B1. Canon B1 services comprise

(1) Prayer Book services (which date from 1662) and

(2) modern services.

In view of his responsibility for Divine Service, the incumbent is expected ‘to have a good understanding of the forms of service used …’ (canon B1(2)). However, the incumbent’s choice of service requires the agreement of the parochial church council (‘the PCC’) (canon B3(1)).

Only canon B1 services may be used, subject to 2 very limited exceptions

(1) Canon B5 gives the incumbent discretion to make ‘variations which are not of substantial importance in any [canon B1 service]’. And the incumbent can introduce liturgical material of his own ‘on occasions for which no provision is made under [canon B1]’.

There is unlikely to be much scope for such material in ordinary Sunday worship. And the discretion conferred by canon B5 is still subject to the ‘pastoral guidance, advice or directions’ of the bishop.

(2) If an ecumenical scheme is in force, a special ecumenical service may be held (canon B43(8)).

Language. The normal language of Divine Service is English, but the House of Bishops may approve non-English translations of canon B1 services (canon B42). Use of such a translation requires the permission of the local bishop. Divine Service may be performed in sign language. Latin services are permitted in universities, public schools and ‘such other places of religious and sound learning as custom allows’.

Vesture. The incumbent and other officiating ministers are generally required to be robed for Divine Service, though the law on this important matter has recently been – rather clumsily – amended.

Canon B8, which is entitled ‘Of the vesture of ordained and [other] authorised ministers’ (so presumably lay ministers as well), now provides that the usual liturgical vesture is

(1) surplice or alb and

(2) scarf or stole.

The cassock is no longer mentioned, but is presumably implied when the surplice is worn. (At any rate a surplice looks rather odd without a cassock beneath it.) Nor does canon B8 stipulate that the stole may be worn only by ordained ministers, not lay ministers. Cassock and alb are now often combined in a single vestment.

‘When a stole is worn other customary vestments may be added’, i.e the catholic eucharistic vestments for Holy Communion, or a cope for special occasions.

However, canon B8 goes on to provide that ‘some other form of dress’ – presumably a reference to ordinary clothes – is possible, but only if the incumbent ‘has ascertained [i.e made certain] by consultation with the PCC that [such] other form of dress will be acceptable’. Even if so acceptable, ordinary clothes must still be ‘suitable to [the] office … a sign and mark of … holy calling and ministry, as well to others as to [regular worshippers]’ (canon C27).

A change of robes (e.g assuming or discontinuing eucharistic vestments) likewise requires the consent of the PCC.

Any disputes over the incumbent’s sartorial appearance must be referred to the bishop ‘whose direction shall be obeyed’.

Ornaments. Canon B8 is the modern replacement of 1 half of the famous Ornaments Rubric in the Book of Common Prayer, ‘the ornaments of the minister’. The other half – ‘ornaments of the church’ – are not regulated by the revised canons. Thus cross and lights on the altar, colourful altar frontals, hangings, flowers and suchlike will be regulated, if at all, by the faculty jurisdiction of the ecclesiastical courts.

Ceremonial. The revised canons are also silent about ceremonies, i.e ceremonial acts performed during Divine Service (e.g processions, ‘smells and bells’, elevation of the consecrated Bread and Wine, the Sign of the Cross). It is therefore argued that such actions are at the discretion of the incumbent. The incumbent’s discretion will extend to the appointment of altar-servers or acolytes to assist with ceremonies.

However, the incumbent’s freedom will be limited by any directions or rubrics contained in the form of service that is being used, and by the requirement that all worship must be ‘reverent and seemly’ (cf canon B5(3)).

Music, like ceremonies, is largely a matter for the incumbent’s discretion, as regulated by canon B20. The incumbent must ‘pay due heed to his [organist’s] advice’, but always retains ‘the final responsibility and decision’.

The incumbent must ensure that all musical items ‘are appropriate, both the words and the music, to the solemn act of worship … and to banish all irreverence’. The chosen music must also be appropriate ‘to the congregation‘. This may refer to the culture or churchmanship of the particular parish.

However, there seems to be no requirement for a parish church to have any music at all. Neither the organ or any musical instrument is identified as one of the ‘things appertaining to churches’ prescribed by section F of the revised canons.

The musical position of cathedrals is very different. In St John’s, Margate (1794) 161 English Reports 524, Sir William Scott held that ‘In cathedral churches [organs] would … be deemed necessary and the ordinary [bishop-visitor] may compel the dean and chapter to erect an organ …’ (p.525). All cathedrals are now required to ‘provide for the appointment of a person having the function of supervising music …’ (Cathedrals Measure 2021, s.5(1)(g)), aka the choirmaster.

Posture. Modern ecclesiastical law can do little to regulate the conduct of lay worshippers, other than by way of teaching or exhortation (like canon B6(1), quoted above). However, canon B9(2) provides that worshippers ‘shall have regard to the rubrics of the service and locally established custom in the matter of posture‘, but no longer insists upon the neglected practices of

(1) kneeling and

(2) ‘giving due reverence to the Name of the Lord Jesus’.

Publication. The incumbent must announce any important Holy Days that will fall during the coming week (e.g a major saint’s day, Ash Wednesday, Ascension Day) (canon B7). The preparation of a new electoral roll must be announced (Church Representation Rules 6(4)).

Banns of marriage must also be published at the principal Sunday service, using a prescribed form of words. They must be published from a special register, ‘and not from loose papers’ (Marriage Act 1949, s.7(3)). Banns may normally be published only by an ordained minister, but in certain limited cases a layperson may do so (s.9).

It is argued that the incumbent is bound to publish a pastoral letter or other communication to the parishioners from the bishop, who is ‘the chief pastor of all that are within his diocese’ (canon C18(1))

All publications not required by law will be at the incumbent’s discretion.

Collections are generally taken at Sunday services. The incumbent and PCC now ‘jointly … determine the objects to which all moneys … collected in church shall be allocated’ (PCC (Powers) Measure 1956, s.7(iv)).

Registration. The church must keep a register (possibly in electronic form), in which ‘shall be recorded every service of public worship, together with the name of the officiating minister and of the preacher … the number of communicants [at Holy Communion], and the amount of any …. collections and, if desired, notes of significant events’ (canon F12). It is not clear who does the recording, the incumbent and / or the churchwardens.

However, the register of banns must be signed by ‘the officiating clergyman, or by some person under his direction’ (1949 Act, s.7(3)).

Word and Sacrament

Divine Service is centred around

(1) the Bible and

(2) the Holy Communion, or Eucharist.

Roman Catholic law aptly describes Bible and Eucharist as the ‘twofold table’. Word and Sacrament. The written Word and the Word made flesh.

Ecclesiastical law regulates 4 aspects of the ministry of the Word, albeit rather perfunctorily. However, closer study of these 4 aspects might improve the quality of Divine Service.

(1) Bible. Canon F9 requires the provision of ‘a Bible’, or rather 2 Bibles: 1 for the incumbent and another ‘to be kept in the pulpit for the use of the preacher’. The incumbent’s Bible must include the Apocrypha, and must be ‘of large size’.

Apart from this, the revised canons seem to make no provision for the use of the Bible in Divine Service. In particular there is no provision for the approval of particular translations or versions of the Bible, so presumably any version will be acceptable (unless it contravenes the requirement of reverence) and a matter for the incumbent’s discretion. The Prayer Book (Versions of the Bible) Measure 1965 permits the use of different versions of the Bible in certain circumstances, but this applies only to Prayer Book services, not modern services.

(2) Sermon. Canon B18(1) provides that at least 1 sermon must be preached on Sunday, ‘except for some reasonable cause approved by the bishop’. The liturgical publication Common Worship suggests excitingly that ‘the sermon [can] include … the use of drama, interviews, discussion, audio-visuals’.

Licensed lay ministers may now preach, as well as clergy (canon E4 and E7). Canon B18(2) also provides that ‘another person’ besides an ordained or lay minister may preach at the invitation of the incumbent, though the permission of the bishop is required, either specifically or in accordance with diocesan regulations.

(3) Sunday School. The incumbent is required to provide a Sunday school for ‘children and young people’ (canon B26), i.e persons too young to profit from the sermon. The incumbent may teach the children personally, or appoint ‘some godly and competent persons’ (i.e Sunday school teachers) to do so.

The Sunday school curriculum must be based on

(a) the Bible

(b) the Book of Common Prayer and

(c) ‘especially’ the Church Catechism.

(4) Assisted Self-Examination. As canon B29(1) notes, Divine Service includes ‘the General Confessions of the congregation and … the Absolutions pronounced by the priest’.

The incumbent is supposed to teach parishioners ‘from time to time’ to prepare themselves to receive Holy Communion, ‘with such preparation as is required by the Book of Common Prayer’ (canon B15(2)).

The Prayer Book sternly exhorts the faithful ‘to search and examine your own consciences … to bewail your own sinfulness, and to confess yourselves to Almighty God, with full purpose of amendment of life …’.

General public confession and absolution following personal self-examination may not be sufficient in a particular case. Canon B29(2) therefore allows that ‘If … any [person] … requires further comfort or counsel, let him come to some discreet and learned minister of God’s Word; that by the ministry of God’s Holy Word he may receive the benefit of absolution, together with ghostly [i.e spiritual] counsel and advice, to the quieting of his conscience …’.

This wording suggests that private confession and absolution are part of the ministry of the Word rather than the Sacrament. An optional form of preparation for the Sacrament, but not a sacrament per se. This is, of course, consistent with Article 25, which denies that ‘penance’ is a sacrament of the Gospel.

Holy Communion begins with the uncovering of the altar or ‘holy table’ (canon F2). The altar is normally covered with a coverlet of ‘silk or other decent stuff’. This is replaced by ‘a fair white linen cloth’ for Holy Communion.

The churchwardens are responsible for providing the bread and wine (canon B17). The bread may be leavened or unleavened. The wine must be ‘fermented juice of the grape’. As the Legal Advisory Commission recently noted, this means that it must have some alcoholic content.

Only an episcopally ordained priest can officiate at Holy Communion in a canon B1 service (canon B12(1)). It is possible for another minister to officiate at a special ecumenical service, but the Anglican faithful must be warned of the lack of episcopal ordination (canon B43(11)).

However, laypeople assist at Holy Communion in various ways. They may read the epistle and the Gospel. As mentioned, a layperson may preach. Licensed laypeople usually assist with the distribution of the Sacrament (canon B12(3)).

Holy Communion comprises 2 distinct rites

(1) the Eucharist, the prayer of thanksgiving in which the bread and wine are consecrated and

(2) the Communion itself, the consumption or ‘reception’ of the consecrated elements.

The priest is the link between these 2 rites. Having celebrated the Eucharist, he must communicate himself (canon B12(2)).

The revised canons do not in terms require Holy Communion to be administered under both kinds. However, canon B17 obliquely refers to this by providing for ‘a sufficient quantity of bread and of wine for the number of communicants that shall … receive the same’ (canon B17(1)).

All Holy Communion services, from the first Book of Common Prayer in 1549 onwards, have required Communion in both kinds for all communicants. They are supported by Article 30, which invokes ‘Christ’s ordinance and commandment’.

The ‘necessitie’ provision in the Sacrament Act 1547 (at s.8) remains on the statute book, and provides a convenient, 500-year-old figleaf of authority for the present practice of withholding the Communion Cup. However, we have argued elsewhere that

(1) this provision applied only to the liturgy in use in 1547, and, though not expressly repealed, was nevertheless impliedly repealed by the subsequent Acts of Uniformity and / or

(2) even if still applicable, it does not apply to the coronavirus situation. (Parliament in 1547 would have described that as a ‘plague’, not a ‘necessitie’.)

The incumbent is responsible for washing the Communion vessels after the celebration (canon F3(2)). However, the revised canons make no provision for the disposal of unconsumed consecrated bread and wine. Reservation of the Sacrament, in an aumbry or tabernacle, though nowadays a near-universal practice and no longer controversial, remains a matter for the faculty jurisdiction.

Baptism, like Holy Communion, should also be administered on Sunday, ‘at, or immediately after, public worship, when the most number of people come together …’ (canon B21). Private baptism, like private Communion, is discouraged, ‘except for grave cause and necessity’ (canon B22(9)). The font is uncovered for baptism, just as the altar is uncovered for Holy Communion (cf canon F1(2)). The baptism must be registered afterwards (cf canon B39(1)).

Baptism founds the right to be admitted to Holy Communion. This right is now regulated by canon B15A. Communicants are expected to ratify their baptismal promises by episcopal confirmation, or at least be ‘ready and desirous’ to be confirmed. The bishop may permit young children to receive Holy Communion, but only if satisfied of ‘adequate provision for [their] preparation and continuing nurture in the Christian life’, a reference to Sunday School (Regulations of 2006). Practising Christians from non-episcopal Churches are admitted to Holy Communion.

The common law right to attend Divine Service is not explicitly linked to baptism in the authorities. However, possession of a baptismal font was originally the legal test that a building was a church, i.e a place of public worship, and therefore subject to the rights discussed earlier. Thus the font may be the foundation of parishioners’ rights over their parish church, even if baptism per se is not.

The Constitution of Marriage: Consensus-Copula

Marriage … is a lifelong union between one man and one woman …’ (Professor Norman Doe, Christian Law (2013), p.394)

Though formulated less than a decade ago, this alleged ‘principle of Christian law common to Christian Churches’ has not aged well. It was, of course, published in the same year that Parliament approved the Marriage (Same Sex Couples) Act.

Now the Professor’s own ‘ecclesial community’, as he describes it (p.viii), the Anglican Church in Wales, is considering a proposal to authorise a liturgical rite of blessing of same-sex marriage. (Blessing only, because the solemnisation of same-sex marriage in church is at present forbidden by the secular law.)

The proposal is accompanied by an ‘Explanatory Memorandum’ signed by all 6 of the Welsh bishops. This argues that blessing a same-sex marriage is justified by the Bible, as interpreted with the aid of ‘new social, scientific and pyschological understandings of sexuality’.

Despite a widespread and 2,000-year-old perception to the contrary, the Bible does not condemn homosexual acts per se. It condemns only lust (or porneia in Greek), albeit it tends to identify lust with homosexual acts rather than heterosexual ones. The moral quality of a homosexual act therefore depends, not on the act itself, but on the intention or motive of the actors. An act that is motivated by lust is bad. However, one that is motivated by love is good.

Persons who enter a same-sex marriage demonstrate thereby that they are motivated by love, not lust. The Church should therefore bless such marriage.

In pre-modern times legal discussion of marriage concentrated on the conditions necessary for a valid marriage (consent, absence of impediments, dispensation from impediments, ceremonial formalities) and the consequences of invalidity (the legitimacy of children, title to property). Recent incidents of forced marriage, and of marriage ceremonies not recognised by law, have led to a revival of interest in these matters. In modern times, discussion turned to the circumstances (if any) in which a marriage can be dissolved, and the consequences of marriage breakdown (financial support, custody of children).

However, the recent phenomenon of same-sex marriage raises the most fundamental issue of all. What is marriage? Assuming that all conditions for its validity are satisfied, how does a marriage come into being?

The Church in Wales Memorandum does not begin to address this question. Even if it was possible to accept its biblical exegesis on homosexual acts, this does not explain how a same-sex relationship, with or without sexual acts, is capable of constituting a marriage. Allusions to marriage are expressed in fluffy abstractions: ‘faithful and mutual commitment’, ‘loving and faithful commitment’, ‘lifelong fidelity and mutual comfort’.

Recent political controversies on both sides of the Atlantic have prompted much discussion of the constitutions of the United States and the United Kingdom. The American and British constitutions are different in many ways, but they have one thing in common: they are both man-made.

Like the United States and the United Kingdom, marriage also has a constitution. Unlike them, however, this constitution is God-given, not man-made. The Book of Common Prayer teaches that marriage was ‘instituted of God [i.e constituted by God] in the time of man’s innocency’. In the case of Dalrymple v Dalrymple (1811) 161 English Reports 665, Sir William Scott, Lord Stowell, observed that marriage ‘is the parent, not the child, of civil society’ (p.669). This God-given constitution of marriage is the foundation of all other constitutions of human society.


Marriage has 2 essential constitutive elements, which are conveniently summed up in 2 Latin words (1) consensus and (2) copula.

The Prayer Book describes marriage as a covenant. Lord Stowell described it as ‘a contract according to the law of nature … wherever 2 persons of different sexes engage by mutual contracts to live together (Lindo v Belisario (1795) 161 English Reports 530, p.636). The different terminology reflects the dual heritage of Christianity, Jewish-Biblical (covenant) and Graeco-Roman (contract, natural law).

Secular law agrees with ecclesiastical law. ‘The contract [of marriage] itself, in its essence … is a consent on the part of a man and a woman to cohabit with each other, and with each other only’ (Harrod v Harrod (1854) 69 English Reports 344, p.349)

Consensus or contract / covenant is, of course, not remotely unique to marriage. A vast multitude of human relationships – economic, political, international and ecclesiastical (including the Church in Wales itself, of course) – are constituted by contracts of one sort or another.

The unique constitutive element of marriage is therefore the union, or copula, that proceeds from the consensus.

Consensus is inseparable from copula. Lacey and Mortimer confirm that ‘the institution [of marriage] consists in [1] a contract [consensus] and [2] its fulfilment [copula]’ (Marriage in Church and State (1912-47), p.39). They explain the relationship between the two

‘the surrender of the body is common alike to marriage and to illicit intercourse … the intention which makes it marriage cannot be adequately expressed without words or their equivalent’.

Thus sexual intercourse per se does not constitute copula. Copula requires prior consensus. Pre-marital intercourse between the couple is not consummation.

Lord Stowell observed that ‘A marriage is not every casual commerce [i.e sexual relationship]; nor would it be so even in the law of nature … But when 2 persons agree to have that commerce for the procreation and bringing up of children, and for such lasting cohabitation … That, in a state of nature, would be a marriage and … in the sight of God’ (Lindo v Belisario again, p.636).

Union, or copula, has both a metaphysical and a physical dimension.

The Prayer Book tends to emphasise the metaphysical dimension of union. The couple are ‘joined together by God’. Marriage signifies ‘the mystical union that is betwixt Christ and His Church’. However, the Prayer Book does refer to the physical dimension of union as ‘one flesh’.

The concept of marriage as one flesh is, of course, of biblical origin, and is affirmed by Christ Himself

‘the Creator made them from the beginning male and female … For this reason a man shall leave his father and mother, and be made one with his wife; and the two shall become one flesh … they are no longer two individuals; they are one flesh’ (Matthew 19, vv4-6).

This makes clear that marriage engages, not merely the constitution of all human society, but the very constitution of the human person, created male and female.

A married couple are joined together by a metaphysical act. Marriage is made in Heaven. But even Divine Grace yet requires human cooperation. The newlyweds cannot simply rely on God to effect their union. They are called to do their bit as well! The physical dimension of copula is effected by marital intercourse. Intercourse between the couple completes, or consummates, their marriage. The biblical phrase ‘one flesh’ could hardly make this clearer.

The precise relationship between consensus and copula was much discussed in the mediaeval Church. Robert E Rodes noted that ‘mediaeval canon law vacillated between [1] consent and [2] marital intercourse as the effective consummation of the marriage’ (‘Canon Law as a Legal System’, Natural Law Forum (1964) p.47n)

Messrs Coriden, Green and Heintschel relate that

‘the Paris school [theologians] taught that consent alone was necessary for a true marriage, while the Bologna school [canonists] held that consent was the beginning of marriage, but only with sexual consummation did a true marriage come into existence’ (The Code of Canon Law. A Text and Commentary (1985), p.812)

The papacy, characteristically, struck a compromise between these 2 schools of thought

‘true marriage exists from the moment of consent; when this consent is completed with sexual intercourse, the property of absolute indissolubility is added … the two becoming one flesh’.

Law has much more to say about consensus than about copula. If a marriage contract is validly made then consummation is presumed. However, proven non-consummation is a ground of nullity in law.

It is interesting to compare the English and Roman Catholic laws on this matter. Non-consummation is not an automatic ground of nullity under either law. In England and Wales, an unconsummated marriage is said to be voidable rather than void. There is a prima facie right to a decree of nullity, but this may be lost on equitable grounds (Matrimonial Causes Act 1973, ss.12 and 13).

In Roman Catholic law an unconsummated marriage may be dissolved, rather than annulled, for a ‘just cause’ (1983 Code, canon 1142). This power forms a rare exception to the Catholic teaching that a valid marriage contract is indissoluble. In England and Wales a non-consummation case can be decided by the local county court. In the Catholic Church such cases are reserved to the Pope himself. No lesser authority may decide them.

English law therefore implies a spouse’s right to consummation of the marriage. Roman Catholic law implies the couple’s joint duty to consummate. However, both laws make clear that an unconsummated marriage is constitutionally incomplete.

Constitution and Purpose

The Prayer Book identifies 3 purposes of marriage, ‘the causes for which matrimony was ordained’:

(1) children. Thus children are not constitutive of marriage. Copula does not require conception. The Prayer Book explicitly acknowledges this by providing that a prayer for the procreation of children ‘shall be omitted where the woman is past child-bearing’.

(2) sexual love. Influenced, no doubt, by celibate mediaeval theologians, the Prayer Book is somewhat grudging in its treatment of this purpose, describing it as ‘a remedy against sin, and to avoid fornication, [for] such persons as have not the gift of continency …’. (This also explains the paucity of reference to marriage as ‘one flesh’.)

Lacey and Mortimer astutely point out that marriage qua ‘remedy against sin … seems to conflict with the statement that it was instituted in the time of man’s innocency’ (op cit, p.28).

Modern liturgies are more generous. Common Worship states that ‘Marriage brings husband and wife together in the delight and tenderness of sexual union’. Its predecessor, the Alternative Service Book (1980), stated that marriage is given so that the couple ‘may know each other in love, and, through the joy of their bodily union, may strengthen the union of their hearts and lives’.

(3) Archbishop Cranmer, the first married Archbishop of Canterbury, sought to balance the negative mediaeval view of sex by the providing that marriage is also ‘for the mutual society, help, and comfort, that the one ought to have of the other, both in prosperity and adversity’ (D MacCulloch, Thomas Cranmer (1996), pp.420-1)

Purposes (2) and (3) are essentially the same – love. They merely refer to different aspects of married love, erotic or sexual love, and friendly, companionable love. Thus marriage has 2 essential purposes, love and children.

It is important not to confuse the constitution of marriage (what is marriage?) with the purpose of marriage (what is it for?). Pleasant-sounding abstract references to marriage (such as those in the Church in Wales Memorandum) tend to do this.

Faith assures that God constituted marriage out of love for humanity, and love is, of course, a good motive for marriage. But love, like children, is not constitutive of marriage. Sad though it is, a marriage can still exist without love, just as it can exist without children.

Mere tender feelings cannot be constitutive of marriage. And the suggestion that love is constitutive of marriage carries the false implication that the only valid marriage is a happy one.

The Marriage Quadrilateral

The phenomenon of same-sex marriage raises 2 questions, which this analysis has sought to answer

(1) What is marriage? Marriage is consensus-copula.

(2) What is marriage for? Love and children.

Consensus, copula, love, children. Having identified this marriage quadrilateral, let us apply it to a same-sex relationship.

A same-sex relationship is not incompatible with consensus. It is, of course, perfectly possible for 2 persons of the same sex to make a contract, or ‘covenant’, to live together unto their lives’ end.

A same-sex relationship is biologically incapable of producing children. However, as discussed, children are not constitutive of marriage. A childless marriage is prima facie just as validly constituted as any other.

A same-sex relationship is capable of love. But again, love, like children, is not constitutive of marriage.

However, a same sex relationship is incompatible with copula. Even the current secular law does not deny the obvious biological fact, which it has no power to change. As amended by the 2013 Act, it acknowledges that its non-consummation provisions (discussed above) ‘do not apply to the marriage of a same-sex couple’ (1973 Act, s.12(2)).

It may be thought that the mediaeval uncertainty about consensus-copula affords some sort of precedent for same-sex marriage. However, that debate concerned only the indissolubility of marriage, a different issue. It involved no denial that sexual consummation is a duty of marriage, or that procreation is a purpose of marriage.

Modern permissiveness is essentially the divorce of consensus-copula, albeit for contradictory reasons. Cohabitation outside marriage (what used to be called ‘living in sin’) implies that prior consensus is not necessary to copula, and may even hinder or restrict copula in some way. Same-sex marriage, by contrast, implies that consensus alone constitutes marriage, without the need for copula. Thus the permissive society both rejects the marriage contract and insists upon it.

Same-sex marriage is also the divorce of the 2 purposes of marriage, love and children. Children are not constitutive of marriage. And marriage is not, of course, a guarantee of children. As the Prayer Book makes clear, children are a blessing, not a right, of marriage. But the constitution of marriage serves the purpose of procreation. A same-sex relationship, by contrast, is constitutionally incapable of serving this purpose. A same-sex relationship is therefore not comparable to a childless marriage.

The link between married love and children first became controversial in the mid-20th century. The famous papal encyclical Humanae Vitae (1968) affirmed ‘the inseparable connection, established by God, which man on his own initiative may not break, between

[1] the unitive significance [love] and

[2] the procreative significance [children]

which are both inherent to the marriage act’ (para 12).

The Lambeth Conference 1930 loosened this connection somewhat by suggesting that ‘where there is … a clearly felt moral obligation to limit or avoid parenthood and where there is a morally sound reason for avoiding complete abstinence … other methods [than complete abstinence] may be used …’ (resolution 15).

However, despite the 20th century confusion over the precise nature of the link between married love and children, there was no denial that the link exists.

It is controversial to equate same-sex love with married love. It may seem self-evident that married love is unique to marriage, i.e consensus-copula. The Catholic Church apparently denies that same-sex love is of the same quality as married love. Homosexualitatis Problema (1986) (not an encyclical, but a letter issued with papal approval) stated that ‘the [homosexual] inclination itself must be seen as obiective inordinata‘ (para 3). The harsh-sounding Latin phrase could perhaps be rendered ‘confused’ in vernacular English. But law and love (and Latin) are different subjects, of course.

The authorities and commentaries discussed above support Professor Doe’s ‘common principle’. A same sex relationship is capable of 1 of the constitutive elements of marriage, and arguably resembles 1 of its purposes. However, it is not capable of the other 2 elements of the marriage quadrilateral. It is therefore not on all fours with the constitution of marriage to which the common principle bears witness.

Suspending Public Worship

‘ensure that no church ceases altogether to be used for public worship’ (canon B14A)

A brief and belated comment on the application of ecclesiastical law to the coronavirus situation.

For 3 long, painful months in 2020 (March to June) all churches in England were forced to close as part of a national ‘lockdown’, a regime of draconian restrictions of fundamental human rights, the purpose of which was to arrest, or at least to slow, the spread of the infamous coronavirus. All public worship was forbidden, with scarcely a murmur of protest. The 2 greatest feasts of the Christian year, Easter and Pentecost, could be celebrated only at home or on the internet. Blogging about the finer points of ecclesiastical law seemed futile during this lockdown limbo.

Later in 2020 there was a second, briefer, lockdown. This time there were mild ecclesiastical protests, which were apparently effective. The third, most recent, lockdown has (thus far) spared churches, though this could change at any time. Public worship is still allowed at the time of writing.

However, some churches did not reopen after the easing of lockdown restrictions, and others have closed voluntarily, even though the secular authority does not presently insist on this.

These voluntary church closures are discussed in a paper ‘Suspending Public Worship: Some Legal Questions and Answers’, version 3, 5th January 2021, issued by ‘the House of Bishops Recovery Group’ and published on the Church of England’s website. (Grateful thanks to the Law and Religion blog for drawing attention to this.)

As the paper notes, canon B11 and canon B14 require (public) services of Morning and Evening Prayer, and of Holy Communion, on all Sundays and on certain other important days. These services must be held ‘in at least 1 church in each benefice or … plurality‘.

Thus Sunday services are not required in all places of worship, or even in all parish churches. But the incumbent must still provide such services in at least 1 church within his cure of souls.

However, the Recovery Group paper justifies the voluntary closure of churches on the basis of canon B14A. This canon provides that the requirements of canon B11 and canon B14 may be dispensed with

(a) on an occasional basis, on the authority of the incumbent and the parochial church council (‘PCC’) or

(b) on a regular basis, on the authority of the bishop, and at the request of the incumbent and PCC.

These powers of dispensation should (obviously) be exercised only for ‘good reason’.

The paper acknowledges that the distinction between (1) an occasional basis and (2) a regular basis may not be entirely clear, and suggests that the local archdeacon may be able to answer this question (cf p.3).

However, the paper does not address the critical limitation of both these powers of dispensation conferred by canon B14A and cited above

‘In giving a [dispensation] the person or persons doing so must be satisfied that there is good reason for doing so and shall … ensure that no church ceases altogether to be used for public worship‘.

This makes clear that, although the number of Sunday services may be reduced for a good reason, Sunday worship cannot be discontinued altogether, even on an occasional basis (i.e basis (a)). On its wording, the limitation does not apply only to the bishop’s dispensation from services on a regular basis (basis (b)). It applies to both dispensations. The incumbent must therefore still provide at least 1 Sunday service for the benefit of his flock, no matter how supportive the bishop and the PCC may be.

Canon B14A may be applicable to the coronavirus situation. If fewer clergy and lay ministers are available to take services, and fewer worshippers attend them, this may well be a good reason for reducing the number of services.

On the other hand, fewer Sunday services may encourage a greater concentration of worshippers, thus increasing, not reducing, the risk of transmission of coronavirus. But canon B14A does not, on its wording, authorise the complete cancellation of public worship, even for a limited period.

Churches can be closed under the authority of a church buildings scheme, under the Mission and Pastoral Measure 2011 (s.42). However, a church buildings scheme may be made only by the Church Commissioners, not by the bishop or the incumbent (s.26). Nor can it be made in a hurry. There must be prior consultation, advertisement, consideration of objections (ss.20-30). An appeal against a scheme lies to the Privy Council (s.12).

Moreover the 2011 Measure permits the closure of churches only for redundancy, even though that word is no longer used. The closed church must be ‘not required as a parish church or chapel’ (s.42(1)). There seems to be no provision for temporary closure, or for closure on health and safety grounds.

And the 2011 Measure is careful to provide that ‘where a parish has no church, the bishop shall make [alternative] provision for public worship’ (s.43). So even when the church is lawfully closed for some reason, including a health and safety reason, this does not override the requirements of canons B11 and B14. Church services must still be held somewhere else.

The Recovery Group paper correctly observes that there is no legal right to access a church for private prayer. However, it neglects to mention that there is a common law right to attend Divine service in the parish church. Such a right cannot be suspended without clear legal authority. Good intentions are not enough.

Phillimore relates that, once upon a time, ecclesiastical courts had jurisdiction to exclude parishioners from church, by means of a ‘suspension ab ingressu ecclesiae … from the hearing of Divine service and receiving the Holy Sacrament, which may therefore be called a temporary excommunication’ (Ecclesiastical Law, 2nd edition 1895, p.1072).

This jurisdiction is, of course, long obsolete. But even if it still existed, it could not apply to the coronavirus situation. Suspension ab ingressu ecclesiae was a criminal sanction, awarded for some infringement of the ecclesiastical law (usually brawling in the church or churchyard). It was not a civil health and safety measure. Moreover the purpose of all ecclesiastical sanctions over the laity was metaphysical, pro salute animae, concerned with the soul’s health, not physical health. And suspending public worship contradicts the whole purpose of ecclesiastical law, which is the administration of the Christian religion.

The health and safety concerns are understandable, of course. But if there is no ecclesiastical authority for suspending public worship, recourse should be had to the secular law.

The common law right to worship is discussed in an earlier blogpost, filed under this category.