ecclesiasticallaw

Ecclesiastical law

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.

Consensus-Copula

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.

In Defence of the Clergy Discipline Measure 2003: Measure and Management

Ecclesiastical Law Society Working Party, Interim Report (September 2020)

Strong criticisms have recently been made of the disciplinary procedure provided by the 2003 Measure, both by accused clergy and their accusers.  The report cited above seeks to address these.

There seem to be 3 criticisms

(1)  delays in processing complaints

(2)  failure to communicate, i.e provide information, even about the particulars of a complaint and

(3)  lack of support for both accused and accuser.

Such treatment naturally causes distress.  It is, of course, a depressingly familiar feature of litigation and quasi-litigation.

The report observes that reform of clergy discipline has not been very successful in the past.  From 1840 to 2020 ‘a series of statutes and Measures introduced new offences and new [disciplinary] processes … a repeated pattern over 180 years: dissatisfaction with the then current system led to the introduction of a new one, only for that itself to be the subject of criticism not long after it was brought into effect’ (para 10).

Another commentator took an even longer view of history: ‘devising a thoroughly satisfactory system of ecclesiastical courts … [is] a problem which has baffled the best brains of Christendom for more than 1000 years’ (Crockford Prefaces, OUP 1947, p.18).

The Ecclesiastical Jurisdiction Measure 1963 was the principal statute regulating clergy discipline prior to the 2003 Measure.  30 years later, Moore’s Introduction to English Canon Law drily observed that the 1963 Measure ‘swept away a number of tribunals and procedures … The machinery which has gone was complicated and cumbersome.  The machinery which has taken its place is, unfortunately, no less so’ (3rd edition, 1993, pp119-120).

The protection afforded by the cumbersome 1963 Measure applied only to beneficed clergy.  Licensed clergy were at the mercy of their bishops.  Canon C12(5) originally provided that ‘Any bishop may revoke summarily and without further process, any licence … for any cause which shall appear to him to be good and reasonable …’.  The bishop was required to hear the licensee first, and the licensee had a right of appeal to the Archbishop.  However, the bishop did not have to prove misconduct, and the licensee had no right to an independent court or tribunal.

Sir Mark Hedley observed that ‘The Clergy Discipline Measure … whatever its defects … is at least better than what had gone before 2003’ (‘Practical Aspects of the Clergy Discipline Measure’ Lecture, October 2017).  The report does not deny that the 2003 Measure is indeed an improvement on the previous 1963 regime.  It provides a single disciplinary regime for both beneficed and licensed clergy (cf.s.8(2)).  Disputed complaints have to be tried and punished by a tribunal, not by the bishop.  As the report observes, ‘bishop’s disciplinary tribunals are, despite the nomenclature, truly independent bodies over whose decisions … the bishop has no control’ (para 9).

Not only the trial but also the prior investigation of the complaint is independent of the bishop.  It is carried out by the designated officer, a national official.  The holder of that office observed that the designated officer ‘is [not] counsel for the complainant … [but] is independent of the complainant … and the bishop … [like] counsel for the Crown in a criminal trial, [the designated officer] puts the case for the victim but … does not represent the victim, and … acts impartially throughout’ (Adrian Iles, ‘The Clergy Discipline Measure 2003’ (2007) 9 Ecclesiastical Law Journal 10, p.19)

Thus, by improving on its predecessor, the 2003 Measure has rather bucked the trend of the last 180 years (perhaps even the last 1000 years!).  A proposal for changing it should therefore be treated with especial caution.

Nevertheless the report makes 2 criticisms of the Measure

(1) the wide ambit of ecclesiastical offences / misconduct

(2) the absence of a procedure for dealing with minor complaints and grievances, ‘a major error’ (para 7).

In practice, it seems that almost all disciplinary complaints are concerned with the vicar’s behaviour, rather than specific breaches of duty or disobedience.  The Ecclesiastical Jurisdiction Measure 1963 provided an offence of ‘conduct unbecoming the office and work of a clerk in Holy Orders’ (s.14(1)).  The Clergy Discipline Measure broadened this offence to ‘conduct unbecoming or inappropriate … ‘ (s.8(1)).

It may be doubted whether the word ‘inappropriate’ really adds anything much to ‘unbecoming’.  However, the ambit of misconduct is undeniably very wide.  The slightest clerical faux pas could be described as ‘inappropriate conduct’.

Despite the apparent criticism, the report does not propose a narrowing of the ecclesiastical offence.  It wisely rejects a regime of ‘detailed rules and regulations and fleshing out of principles’ of what does or does not constitute inappropriate behaviour (para 42).  Such a regime would be ‘too interventionist in [clergy] personal lives and too restrictive of their practice of ministry’ (para 42).  It would create an undesirable bureaucracy or ‘industry’ of ‘professional expertise’ (para 46).

Hedley pointed out in his lecture that ‘standards of behaviour required of the clergy are necessarily high’.  But it is necessary to distinguish minor, though genuine, grievances about a vicar’s lapses of tact and courtesy from more serious matters.

Therefore, despite its professed caution about legislative reform (‘We are acutely aware of the risk …’ (para 10)), the report proposes 2 quite radical changes to the Clergy Discipline Measure:

(1) a new preliminary stage for assessing complaints when they are first made and

(2) the creation of 2 ‘tracks’ for processing misconduct case – 1 track for ‘lesser’ misconduct, another for ‘serious’ misconduct.

At present, the 2003 Measure provides that a complaint is referred to the registrar for preliminary scrutiny (s.11).  This scrutiny is limited to ‘forming a view as to whether or not …

[1] the [complainant] has a proper interest … and …

[2] there is sufficient substance in the complaint to justify proceeding with it’.

The report proposes that the complaint should instead be referred, not to the registrar, but to an assessor.  The assessor may be ‘a lay person who from their own secular work experience has [appropriate] skills’.  Or the bishop could appoint an archdeacon to be the assessor (para 91).

The assessor’s complaint handling function will be considerably greater in scope than the registrar’s preliminary scrutiny.  The assessor will not merely scrutinise the written complaint, but actually institute an enquiry on the basis of it.  He will speak to both the complainant and the accused clergyman (para 94).  Both parties ‘would be asked to provide the assessor with evidence in support of their respective contentions’ (para 95).

Having completed this enquiry, the assessor will report to the bishop.  The bishop may then proceed as follows

(1) attempting conciliation / resolution

(2) dismissing the complaint

(3) to ‘having concerns about the health of the cleric’

(4) or ‘having concerns about the capability of the cleric’ or

(5) finding misconduct.

Thus the enquiry will not necessarily be limited to the specific complaint.  It extends to the accused clergyman’s health and general capability for office.

(1) is evidently the preferred course.  The assessor will be expected to settle the dispute between the parties, as well as investigate it, if possible (para 98).

However, if misconduct is found (per (5)), the bishop will then have to decide ‘whether it is serious or lesser misconduct, and allocate it to the appropriate ‘track’ (para 111).

Serious cases will continue to be dealt with by reference to a tribunal.  However, lesser misconduct cases that cannot be settled by agreement will be decided by the bishop alone, on the basis of the assessor’s report (para 115).

The report proposes that ‘the bishop should have the power to impose penalties, without consent, penalties falling short of prohibition … principally rebuke and injunction, and might also include conditional deferment’ (para 116).  (At present, conditional deferment is only possible with consent.)  An administrative rather than a judicial procedure.  Inquisitorial not adversarial.  No tribunal and no lawyers.  The report candidly admits that ‘our proposal [is] to keep out lawyers’ (para 118).  However, the penalised clergyman would have a right of review or appeal (para 119).

These proposals are hardly favourable to accused clergy.  The assessor’s enquiry is bound to take longer than the registrar’s scrutiny.  The activism of the assessor’s function may result in additional complaints to the one which prompted the enquiry.  It may even start a bandwagon rolling, positively encouraging parishioners to complain.

Empowering the bishop to impose penalties unilaterally, without consent, is a major reversal of the policy of the Clergy Discipline Measure.  This proposal would repatriate powers from the tribunal to the bishop.  It is a chilling echo of the pre-2003 regime over licensed clergy.

It is true that the bishop could not actually remove an accused clergyman from office.  But an injunction is still an interference with the clergyman’s tenure.  Conditional deferment of a complaint will also prejudice tenure if a subsequent complaint is made.  The clergyman’s career and reputation will be damaged.

Hedley suggested in his lecture that, when processing complaints, ‘the question of threshold needs to be addressed’ i.e the ‘threshold’ from minor to serious misconduct.  It is not clear how a 2 track procedure will identify this threshold, any more than the present 1 track procedure.  As mentioned, the report eschews detailed definitions of misconduct.

But the procedure (as proposed) would certainly alter the threshold.  Under the 2003 Measure, serious misconduct is any misconduct that would attract any penalty.  Minor misconduct is conduct that would not attract a penalty.

According to the report’s penalties-based definition, ‘serious misconduct’ is misconduct that would justify a prohibition or loss of office.  ‘Minor misconduct’ is misconduct that may justify either a less serious penalty or no penalty.  There are 2 possible consequences of this definition

(1) an allegation of serious misconduct will be treated as if it was minor misconduct, with the accused being denied the protection currently provided by the 2003 Measure to defend the allegation and / or

(2) minor misconduct will be dealt with more severely than it is at present.

Admittedly the boundary between serious and minor misconduct is not absolute under the 2003 Measure.  The mildest penalty available to a tribunal is a rebuke.  The report Under Authority (1996), whose proposals formed the basis of the 2003 Measure, acknowledged that ‘a prosecution that leads only to a rebuke is probably a prosecution which should not have been brought’ (p.98).  However, it is certainly the policy of the Measure that any alleged misconduct that would attract a penalty more serious than rebuke should be dealt with by the tribunal.

Such proposals to reform the Clergy Discipline Measure are undesirable in themselves.  It is further argued that reform of the Measure is not necessary to distinguish between serious and minor cases.  Common sense and experience should suffice to determine whether a complaint is concerned with the vicar’s shortage of interpersonal skills or with something more serious.

Iles notes that ‘complaints based on disagreements and grievances, however genuine, are not disciplinary matters, and the [Clergy] Discipline Commission urges bishops to dismiss them, along with complaints alleging acts or omissions amounting to minor misconduct.  Bishops are encouraged to take a fairly robust approach … and to be alert to the possibility of resolving a complaint … by non-disciplinary means … where appropriate’ (‘The Clergy Discipline Measure 2003: A Progress Report’ Ecclesiastical Law Journal, January 2014, p.5.).  An eminently sensible policy.

There is nothing in the 2003 Measure to prevent the bishop from taking advice from others, in addition to the registrar, on what to do with a complaint.  Nor does the Measure prevent the bishops collectively from agreeing a common approach.

When disposing of a minor complaint, the bishop does not need statutory powers to rebuke a tactless incumbent, or to suggest, and facilitate, conciliation.  (Conciliation is, by definition, consensual, requiring the acquiescence of both parties to the dispute.)

A minor complaint may indeed give rise to concerns about a clergyman’s general capability, including his health.  But the report itself admits (para 105) that a statutory capability procedure already exists, under the Terms of Service Measure 2009 and the rules made thereunder.  The 2009 regime also provides for regular performance appraisal of clergy (‘ministerial development review’) and for continuing education.

It is likely that the silence of the 2003 Measure concerning minor misconduct was based on the assumption that this would be dealt with by what became the Terms of Service Measure 2009.  Serious misconduct to be dealt with by the 2003 Measure.  Minor misconduct by the 2009 Measure.

It is further argued that the Clergy Discipline Measure per se is not to blame for the current criticisms of the disciplinary procedure.  There is nothing in the 2003 Measure that necessitates delay or prevents communication with, and support for, the parties to a disciplinary case.  Reforming or repealing the Measure would therefore not cure these shortcomings.

The Measure actually includes provisions that are intended to avoid delay.  It prescribes time limits of 28 days for processing complaints, though allowing for extensions (ss11 and 12).  A busy registrar is expressly empowered to delegate ‘any or all of his functions [of preliminary scrutiny] to such person as he may delegate’ (s.11(6)).

The 2003 Measure makes provision for disciplinary cases that also involve the secular authorities – the police, the courts, ‘safeguarding’ authorities.  These authorities may well take a very long time to process a case, and this will inevitably place an accused person under great strain.  But of course secular procedures are outwith the scope of any ecclesiastical legislation.

So what should the Church do to address the admitted criticisms of its own procedures?  (The report evidently accepts that the criticisms are justified.)

It is argued that the correct response is, not legislative reform, but administrative or managerial reform.  It may be embarrassing to say so, but responsibility for the admitted shortcomings lies, not with the Clergy Discipline Measure per se, but with the persons whose duty it is to administer the Measure.  The solution therefore lies in the management of such persons.  This requires a company doctor, not a legislative draftsman.

The report obliquely refers to the difficulty.  It remarks, somewhat feebly, that ‘the current capability procedures [under the 2009 Measure] … are not well understood and appear to be rarely used’ (para 105).  The answer to that problem is effective managerial action to ensure that the procedures do become well understood and properly used, not to legislate for yet more procedures.

The report itself is interesting to read and provides welcome food for thought (after many hungry months for this blog).  But still, its conclusions are, with respect, on the wrong track.

Praying for the Dead

‘I whiles wish I was a Catholic and could pit up prayers for the sodgers that are dead.  It maun be a great consolation.’ (fictional Protestant lady in Mr Standfast (1919), by John Buchan)

It is easy to forget now that praying for the dead was once a controversial practice.

In 1904, shortly after his elevation to St. Augustine’s Chair, Archbishop Randall Davidson was embarrassed by an allegation that he had ‘said prayers for the dead with the late Queen’, i.e Queen Victoria (presumably prayers for her beloved Albert).  He had formerly been Dean of Windsor, in effect the Queen’s local vicar.  His official biography records that ‘The [allegation] was widely reproduced, and the Archbishop received letters from newspaper editors and protest from Protestant organisations’ (G.K.A Bell Randall Davidson (1935), pp.440-1).

He did not deny the prayers, but complained of ‘how little appreciation that there is of the distinction … in the Church of England between

[1] the use of such prayers [for the dead] in the private devotion of a worshipper … and

[2] the insertion of such prayers in the public services of the Church’.

[2] was forbidden, but [1] was permitted.  (The implication is that the Archbishop – and the Queen – had only engaged in [1], not [2], and were therefore innocent of any ecclesiastical irregularity.)

This may suggest that private prayer for the dead is rather like private confession, a permitted concession to human weakness, for those who cannot otherwise find the assurance of God’s mercy and forgiveness.

Prayer may be private, but the churches and burial grounds in which the dead are buried and commemorated are public places.  In the case of Breeks v Woolfrey (1838) 163 English Reports 304, the Rev Mr Breeks prosecuted Mrs Woolfrey, one of his parishioners, in the Court of the Arches, ‘touching and concerning her soul’s health, and for the lawful correction of her manners and excesses’ (p.307).  Mrs Woolfrey was a Roman Catholic.  She had inscribed her husband’s tombstone with the words ‘Pray for the soul of …’.  Mr Breeks argued that this was unlawful.

Article 22 condemns ‘The Romish doctrine concerning Purgatory … grounded upon no warranty of Scripture, but rather repugnant to the Word of God’.  The Dean of the Arches, Jenner, acknowledged that ‘by this law I am bound to govern myself’ (p.308).

(He might have added that Article 31 also condemns ‘the sacrifices of Masses, in the which it was commonly said that the priest did offer Christ for the quick and the dead, [are] blasphemous fables and dangerous deceits’.  The Mass, or Eucharist, is a prayer as well as a sacrifice.)

Moreover, one of the homilies commended by Article 35 for their ‘godly and wholesome doctrine’ deprecates the practice of prayer for the dead: ‘neither let us dream … that the souls of the dead are holpen by our prayers’.

That was not the end of the matter, however.  The Dean reviewed ‘Authorities [i.e commentaries] … numerous in the point … that prayers for the dead are not necessarily connected with the doctrine of Purgatory, since they were offered up by the Primitive Church long antecedent to the [mediaeval] doctrine of Purgatory’ (p.309).

Thus prayer for the dead does not necessarily imply the existence of Purgatory, but may be offered ‘that souls might have rest and quiet in the interval between death and resurrection’.

Mrs Woolfrey was a Catholic, and so presumably adhered to Catholic teaching.  Surely this meant, Mr Breeks suggested, that her inscription did necessarily imply the existence of Purgatory? (The word ‘necessarily’ occurs frequently in the judgment.)

This suggestion was rejected on a legal technicality: ‘if anything arose from the circumstance of [Mrs Woolfrey] being Roman Catholic, or from the sense in which the words of the inscription are understood by the Romish Church, it should have been specifically pleaded‘, which it had not been (p.312).

The Dean concluded that the historic formularies ‘shew that the Church discouraged prayers for the dead, but did not prohibit them: and that the 22nd Article is not violated by the[ir] use’ (p.311).  Nor did the withering reference in the approved homily amount to a prohibition.  The homily does not say that praying for the dead is unlawful, merely that it is useless.  ‘If it had been the opinion of the [reformers] that prayers for the dead were opposed to the Scriptures, they would have expressly declared their illegality’ (p.312).  The vindictive vicar was sent away with his case dismissed, and an order to pay Mrs Woolfrey’s costs.

The Dean accepted that all public prayers for the dead had been removed from the liturgy (from 1552 onwards), but suggested that ‘The probable reason for the omission … [was] that they might be abused … to the support of the Roman Catholic doctrine of Purgatory’ (p.311).

Breeks v Woolfrey was decided during the Tractarian era, a time when the Church of England was encouraged to remember its ‘catholic’ identity and descent from the Early Church.  The judgment is undeniably attractive.  Ecumenical generosity and patristic scholarship prevail over fundamentalism and prejudice.

The judgment places a Tractarian gloss on the historic formularies.  It may be doubted whether the formularies draw a clear distinction between prayer for the dead and relief from Purgatory, or that they exclude the former because of a perceived danger that they will be mistaken for the latter.  It is far more likely that such prayer was excluded for the reasons given by the formularies themselves, i.e that it is unscriptural and unhelpful to the dead.

Private prayer is not forbidden, but an inscription in a church or churchyard is arguably public, not private.  Mrs Woolfrey was not prosecuted for praying for her husband’s soul.  Of course she was free to do this.  She was prosecuted for inviting, or inciting, other people to do so, by means of an inscription placed in the parish churchyard.  It could be argued that the Court of the Arches failed to appreciate the distinction between permitted private prayer and public advertisement.

The suggested dichotomy between mediaeval doctrine and primitive practice is problematic.  This issue would be addressed not long after Breeks v Woolfrey by St John Henry Newman (a leading Tractarian of course) in his Essay on the Development of Christian Doctrine (1845).  The modern Roman Catholic Catechism (1994-2000) explains that ‘after death [souls] undergo purification, so as to achieve the holiness necessary to enter the joy of Heaven … The Church gives the name Purgatory to this …’ (paras 1030-1).  Breeks v Woolfrey suggests that we may pray for the rest of departed souls, but not for their purification.  But ‘rest’ from what, exactly? If souls are not in need of purification, why do they need praying for?  The fundamentalism of the formularies seems more logical on this point.

Phillimore relates that the Latin Prayer Book of Queen Elizabeth I (not the English one) included prayers for the dead, and that ‘prayers for the dead are used on special occasions in the chapels of some [Oxford] colleges’ (Ecclesiastical Law, 2nd ed 1895, p.696).  (The rationale for this may be that those involved are sufficiently select for the prayers to be considered private, and / or are sufficiently intelligent not to be deceived by the error of Purgatory!)

In the decades that followed Breeks v Woolfrey, municipal cemeteries were opened as traditional churchyards became overcrowded and insanitary.  The Acts of Parliament which authorised these new burial grounds were careful to assert the ecclesiastical authority’s ‘right and power to object to the placing, and to procure the removal of any monumental inscription’ in consecrated ground: Cemeteries Clauses Act 1847, s.51.  Also, ‘the fitness of any monumental inscription … shall be determined by the bishop’: Burial Act 1852, s.38.  The ecclesiastical jurisdiction to veto unfit inscriptions in consecrated municipal cemeteries is preserved today in the Cemeteries Order 1977, Article 13.

The tolerance displayed in Breeks was ahead of its time.  In the late 19th and early 20th centuries, the ecclesiastical courts refused to grant faculties for inscriptions inviting prayer for the soul of a deceased person.

This does not mean that the courts ignored Breeks (they did not), or even that their decisions were inconsistent with it.  It should be remembered that Breeks was a criminal prosecution.  Criminal prosecutions must be exactly pleaded and strictly proved, which Mr Breeks had failed to do.  Faculties, by contrast, are a discretionary civil matter.  A faculty petition will not be accepted just because its subject-matter is not unlawful.  What is not unlawful is not necessarily encouraged.  The same reason for dismissing the prosecution of Mrs Woolfrey (that prayer for the dead is discouraged but not unlawful) may also justify the refusal of a faculty for an inscription inviting such prayer.

Egerton -v All of Odd Rode (1894) Probate 15 concerned an inscription ‘Pray for the soul of …’ on a church window.  A faculty was refused because

‘it does not … belong to a [Church] court … to do what the formularies of the Church have abstained from doing … to authorise directly the setting up in a place of worship of an inscription demanding … prayers … for [departed] souls’ (p.21).

A powerful point.  The faculty jurisdiction should be exercised consistently with the liturgy, and with the principle of uniformity on which the liturgy was then based.

The judgment in Pearson v Stead (1903) Probate 66 is rather less persuasive.  The Chancellor, Dr Tristram (the last survivor of Doctors Commons), addressed the unpleaded issue raised in Breeks v Woolfrey.  The petitioner for the inscription, like Mrs Woolfrey, was a Roman Catholic.  Was this relevant?  The Worshipful Doctor suggested that it was:

‘The court … should be satisfied … beyond all doubt … that the inscription was so expressed and intended to be expressed as not to include or appear to include an invitation for prayers for the relief of [departed] souls … from the pains of Purgatory …’ (p.73).

On this view, it is not just the wording of an inscription that matters, but the intention of the petitioner.  A Roman Catholic petitioner would naturally intend an inscription to invite prayers for relief from Purgatory.  This intention would in turn give the inscription an appearance of inviting such prayers, even if the inscription did not explicitly refer to Purgatory.  A faculty should therefore be refused.

This ratio decidendi suggests that exactly the same inscription may be permitted if its author is an Anglican (who, as such, is merely inviting prayers for the ‘rest’ of departed souls) but must be refused if he is a Catholic.

In Dupuis v Parishioners of Ogbourne St George (1941) Probate 119, the Chancellor refused a faculty because he thought that many Anglicans would associate such an inscription with Purgatory, even if this was not intended, and would consequently be distressed and offended by it.  The Court of the Arches held that this was a matter for the Chancellor’s discretion and declined to overrule him.

Then, in South Creake (1959) 1 All England Reports 197, Chancellor Ellison granted a faculty for an inscription on a window in the parish church.  The faculty was sought by the vicar himself (for his late mother), and the parish had ‘a strong Anglo-Catholic tradition’ (p.198).

The Chancellor strongly emphasised the findings in Breeks v Woolfrey that

(1) the Early Church offered prayers for the dead and

(2) such prayers were not unlawful in the Church of England.

He pointed out, correctly, that he was not bound by the earlier faculty decisions, which were taken by chancellors from other dioceses.  He suggested unconvincingly that the Egerton decision ‘goes further than Breeks v Woolfrey requires’, but this ignores the different character of the 2 cases, as discussed earlier (criminal prosecution cf judicial discretion).

The decisive factor in favour of the inscription was the change of attitude over the years: ‘the average churchman today approaches the subject-matter under consideration with much less intensity than did his forebears’ (p.206).  Nor was it merely the average churchman whose attitude had changed.  The Revised Prayer Book of 1928, approved by large majorities in the Convocations, includes a prayer for the dead.  The Lambeth Conference of 1958 (which met while the Chancellor was considering the case) had reported favourably on the practice (pp.207-8).  Thus prayer for the dead was now officially encouraged, rather than discouraged.

It may be objected that, though attitudes had undoubtedly changed, the law had not.  The 1662 regime of public worship still lingered on in the 1950s.  The 1928 Book, though indeed approved by the Convocations, had been rejected by Parliament, so had no statutory authority.  The deliberations of the Lambeth Conference (or Conferences) are nothing more than expressions of opinion.

However, it had long been recognised that the 1662 regime was unenforceable and not fit for purpose.  Eventually the law was changed by the Worship and Doctrine Measure 1974.  The modern liturgy now includes prayers for the dead, with the full statutory authority of the 1974 Measure.

This addresses the point raised in Egerton.  If the official liturgy includes prayers for the dead, then inscriptions inviting such prayers are prima facie permissible, though there may still be discretionary reasons for refusing an inscription in a particular case.

The modern prayers may have been inspired by Tractarian researches into the Early Church, but, as the above quotation suggests, the grim experience of modern warfare was probably instrumental in changing attitudes towards them.  (Mr Standfast is set during the first World War.)

Praying for departed loved ones is indeed ‘a great consolation’.  It satisfies an obvious human need.  It may discourage dabbling in spiritualism (seances, mediums etc).  Contrary to the alleged fears of the Reformers, it has not led to a revival of support for the doctrine of Purgatory.  However, the metaphysical effect of such prayers, i.e how the dead are ‘holpen’ by them, is unclear.

The Diocesan Board of Finance: Constitution, Custody and Management

The property of an English diocese may be divided into 4 categories

(1) parochial (i.e parish property)

(2) benefice

(3) episcopal and

(4) cathedral.

The Diocesan Board of Finance (henceforward ‘DBF’) is only concerned with (1) and (2).  (3) is now the responsibility of the Church Commissioners (cf Episcopal Endowments and Stipends Measure 1943).  (4) is the responsibility of the Cathedral Corporation, though subject to some oversight by the Church Commissioners.

Constitution

The Diocesan Boards of Finance Measure 1925 requires every diocese to have a DBF.  However, the 1925 Measure did not invent DBFs.  They have probably existed since Victorian times.  Introducing the Measure to the House of Commons, Lord Hugh Cecil observed that ‘There are [already], all over England, diocesan boards of finance, and it is desired by this Measure to bring them all under one form’ i.e constituted as companies (Hansard vol 189, 16th December 1925).

The DBF must be incorporated as a company under the Companies Acts. This is in contrast to the parochial church council, which is a statutory body corporate, but not a company. Other ecclesiastical committees, if required to be incorporated, are statutory corporations, not companies.

Why are DBFs different?  The evident policy of the 1925 Measure was to permit local flexibility and discretion.  Thus the Measure provides that the DBF’s constitution may ‘confer … such further powers on the [DBF] as the diocesan synod … may think necessary or expedient in view of the requirements of the diocese’ (s.1(2)(c)). A Church of England report observed that ‘the diocesan synod has considerable discretion as to the constitution of its DBF … DBF constitutions … show a wide variety of provisions governing membership of a DBF and … [its] directors’ (DBFs: Conflicts of Interest, para 1).

The DBF’s title may cause confusion.  A DBF is called a board, but it is constituted as a company.  There is, of course, an important legal distinction between a company and its board of directors.

The bishop must be a member of the DBF (though not necessarily its chairman). A majority of the DBF’s members must be

(1) elected, either by the diocesan synod or by the deanery synods of the diocese

(2) members of the diocesan synod (membership of a deanery synod will not suffice) and

(3) laymen (or laywomen).

The DBF, then, is constituted by the diocesan synod, and is accountable to it.  The 1925 Measure provides that the DBF ‘shall in the exercise of its powers and duties comply with such directions as may be given to [it] by the diocesan synod’ (s.3(1)).

S.19 of the Dioceses, Pastoral and Mission Measure 2007 suggests that it is possible for 2 or more DBFs to discharge their functions jointly, or delegate their functions to each other.  It is also possible for 2 or more dioceses to create a single, interdiocesan DBF.  Such interdiocesan arrangements concerning ‘any body corporate or unincorporate or committee … other than a diocesan synod or bishop’s council’ (s.19(1)) require the authority of a statutory scheme made by the bishops concerned, with the approval of their respective diocesan synods, and of the Charities Commission.

The 1925 Measure does not mention the Church Commissioners (or Ecclesiastical Commissioners as they were then known).  However, as the DBF’s responsibilities have broadened since 1925, so it has become subject to the oversight of the Church Commissioners, as well as the local synod.

Thus the Church Property Measure 2018 obliges DBFs to provide information required by the Church Commissioners on any matter concerning its functions under that Measure.  And the DBF must ‘have regard’ to any advice tendered by the Commissioners concerning those functions (s.40).

Function

The DBF has broad powers ‘to hold real and personal property for purposes connected with the Church of England’, and ‘to transact business in connection with the Church of England and the diocese …’ (1925 Measure, s.1(2)).  In practice, the DBF’s principal responsibility today is the maintenance of ministry in the diocese, and hence to acquire sufficient property and income to achieve this.  Also to meet its own office expenses, and certain other diocesan expenses. However, it is argued that parochial and benefice property are the nucleus of the DBF’s function.

Parish property ((1) above) may be subdivided into

(1) property regulated by the Parochial Church Councils (Powers) Measure 1956.  This includes ‘property … applicable to purposes connected with [the] powers, duties or liabilities’ of the parochial church council (‘the PCC’) (s.4(3)).  Also property acquired property acquired by the PCC ‘for any ecclesiastical purpose affecting the parish’, or for ‘educational schemes’ (s.5(1)).  Such property is likely to consist principally of a church hall and parish funds.

(2) property regulated by the Incumbents and Churchwardens (Trusts) Measure 1964.  This is property ‘held on [specific] charitable trusts, established for ecclesiastical purposes’, of which trusts the incumbent and churchwardens are ex officio trustees (s.2), e.g trusts for the provision of religious education.

Benefice property ((2) above) comprises

(1) the church and churchyard

(2) the parsonage (i.e the official residence of the incumbent)

(3) other official residences and

(4) glebe, which provided the incumbent’s income.

(Tithe and tithe rentcharge have now been abolished.)

Some dealings will affect all species of parochial and benefice property.  Parishes and benefices, and hence their property, are regularly subject to reorganisation under statutory powers now contained in the Mission and Pastoral Measure 2011.  The DBF is required to hold a pastoral account, for the income and expenses of a reorganisation (2011 Measure, ss.93 and 94).  A reorganisation proposal is required to consider ‘the financial implications for the diocese’ (s.3(2)), but (perhaps surprisingly) the DBF is not required to be consulted about a reorganisation, except where this involves the closure of a church (s.21(7)).

Parochial and benefice property may also be subject to a sharing agreement, made with other Christian denominations under the Sharing of Church Buildings Act 1969.  The 1969 Act provides that the DBF must be a party to such an agreement (s.1(3)), so will be able to influence its terms and performance.

The DBF has a general power to buy or otherwise acquire, and to grant, land and buildings for use as a church or other place of worship, or as a churchyard, church hall and parsonage (Church Property Measure 2018, s.28).  The 2018 Measure also provides for the grant of land to the DBF for such uses (ss.29-31).

(1)  The Parish

The PCC may not acquire, sell or otherwise deal with land (other than short leases) or trust property without the DBF’s consent.  To ensure that this rule is observed, such land or trust property must be transferred to, or become vested in, the DBF as legal owner (1956 Measure, s.6).  Nevertheless, the PCC remains responsible for all liabilities and outgoings relating to the property (s.6(4)).  A similar rule applies to trust property regulated by the 1964 Measure.

These rules reflect the distinction found in trust law between (1) custody and (2) management.  The DBF is custodian of parish property, while the parochial authorities are its managers.

Minor dealings with parish property below a certain specified value will not require the DBF’s consent (1956 Measure, s.6(4A), 1964 Measure, s.5A).

Parish accounts must be laid before the DBF annually (1956 Measure, s.8(4)).

The DBF has custody of parochial land and trust property, but it has no charge over parish funds (e.g bank deposits and ‘personal’ investments that are not subject to a specific trust).  However, it has long been the practice (again, perhaps since Victorian times) for parishes to make an annual contribution to diocesan expenses.  This is known as the parish share or quota.  It is possible to see, proudly displayed on a church noticeboard, a ‘certificate’, signed by the grateful bishop, and ‘presented in recognition and appreciation of your [parish] share’.

The Synodical Government Measure 1969 makes an oblique reference to the practice: ‘the diocesan synod [may] delegate to the deanery synods … the determination of parochial shares’ (s.5(4)).  Thus, unlike most charitable giving, the parish does not simply decide what it wants to donate. The local synod assesses what it should pay.

Roman Catholic law empowers the bishop to impose a ‘moderate tax’ (tributum) on parishes ‘proportionate to their income … for diocesan needs’ (Code of Canon Law 1983, canon 1263).  This taxing power apparently originated in the cathedraticum, a payment made ‘as a sign of … subjection to … episcopal authority’ (The Code of Canon Law.  A Text and Commentary, eds Coriden, Green and Heintschel, New York 1985, p.866).  Perhaps the Anglican parish quota / share was inspired by this Catholic custom.  However, though the quota / share assessment may resemble a charge or tax, payment of it is purely voluntary.  The wording of the 1969 Measure does not empower the synod to enforce payment of its assessment, and there is no other statutory provision for enforcement.

Parish property, including trust property, can be appropriated (i.e converted) into glebe, but the PCC or trustees, and the Charities Commission, must consent to this (s.19(3)).

Where a joint PCC of 2 or more parishes is either created or dissolved, the DBF resolves any question that may arise concerning the property, rights, liabilities or functions of the PCCs concerned (Church Representation Rules, as amended by the Church Representation and Ministers Measure 2019).

If there is a dispute over an entry on the parish electoral roll, or over the outcome of a synodical election, the DBF may be liable to meet the legal expenses of resolving the dispute (ibid).

(2) Church and Churchyard

The DBF has less direct responsibility for churches (and churchyards) than any other parochial or benefice property.  It is neither custodian nor manager.  The incumbent and churchwardens have custody of the church and its contents, while the care of the church is now the financial responsibility of the PCC.  Dealings with the parish church are subject to the oversight of the archdeacon and the ecclesiastical courts (under the faculty jurisdiction).  Any grants or loans made by the DBF are discretionary.

The statute law follows the common law rule of ownership.  Thus land acquired by the DBF for use as a church or churchyard automatically vests in the incumbent (2018 Measure, s.32).

However, the Ecclesiastical Fees (Amendment) Measure 2011 provided that fees (traditionally known as ‘surplice fees’) that were formerly payable to the incumbent (eg for weddings and funerals) should in future be paid to the DBF.  This was a sensible reform, as the DBF is now responsible for clergy remuneration, and incumbents should not be paid twice for the same work (a fortiori they should not be paid for work done by other clergy who deputise for them).  These fees are the only statutory, compulsory income that the DBF receives.

An agreement between a PCC and a lay rector to compound the latter’s liability to repair the chancel (i.e get rid of the liability in return for a lump sum payment) requires the DBF’s approval (Ecclesiastical Dilapidations Measure 1923, s.52).

Every diocese must establish a fund to meet the cost of inspecting churches (Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.45(2)).  The DBF is the obvious body to hold and administer this fund, though this is not explicitly provided for.  The DBF must also meet the expenses of the diocesan advisory committee, which advises on the care of churches (s.37(10)).  If the bishop or archdeacon intervenes in faculty proceedings, the DBF is responsible for their legal expenses, provided it has been consulted in advance (s.60(4-6)).

The DBF has little direct responsibility for a functioning parish church, but considerable responsibility for a church which has been closed, i.e made redundant, under the Mission and Pastoral Measure 2011.

The precise terms of the DBF’s involvement with a closed church will depend on the particular statutory scheme of closure.  However, the DBF is usually responsible for the contents of a closed church, pending their disposal (s.76).  The ownership and management of a closed church may be transferred to the DBF pending sale, or on a permanent basis, perhaps for commercial use and profit (s.63).  If no further use can be found for a closed church, the DBF may be entrusted with the melancholy task of demolishing it (s.58(2)).

(3)  Parsonages

Parsonages, like churches and churchyards, vest in the incumbent, not the DBF.  As with a church, any parsonage acquired by the DBF will automatically vest in the incumbent (2018 Measure, s.32).  Thus the DBF, qua DBF, is neither custodian nor manager of parsonages.

The Repair of Benefice Buildings Measure 1972 requires every diocesan synod to appoint a parsonages board to manage parsonages (s.1).  (Parsonages boards were formerly known as dilapidations boards, but the 1972 Measure abolished this depressing title.)  The diocesan synod has the right to designate the DBF itself as the parsonages board.  If the DBF is designated as parsonages board, it must delegate its managerial functions under the 1972 Measure to a special committee (or committees).

As the parsonage vests in the incumbent, and not the DBF, the DBF has no power to sell a parsonage.  However, the surplus proceeds of any sale belong to the DBF (Church Property Measure 2018, s.13(1)).

Also, if the DBF is opinion that a parsonage house or land ‘is not required [for] the incumbent’s … convenient occupation’, it may request that the property be transferred to itself, and held as glebe (Church Property Measure 2018, s.8).  If the Commissioners and the bishop agree, the bishop may then order the transfer of the parsonage to the DBF, even if the incumbent objects, without the need for any further conveyance (s.8).

As a general rule, parsonage land cannot now be leased.  If not required for the incumbent’s residence, it must be transferred to the DBF as glebe. However, during a vacancy in the benefice, the DBF may agree to the benefice sequestrators leasing the parsonage.  Any profit left over when the benefice is filled must be paid to the DBF (s.37(1)).

There may also be some old leases of parsonage land, granted by incumbents before the Endowments and Glebe Measure 1976 took effect.  The incumbent remains the nominal landlord of such a lease.  However, the DBF effectively manages the lease.  It is entitled to information from the incumbent or sequestrators concerning leased parsonage land (s.6).  The rent must be paid to the DBF (s.7), and is treated as the DBF’s income, not the incumbent’s.  For its part, the DBF, not the incumbent, meets all the costs of the landlord’s obligations and liabilities.

(4)  Other Official Residences

Non-incumbent parochial clergy (assistant curates, team vicars etc) do not own their official residences.  If a curate’s house is supplied by the PCC, or by a parochial trust, it will vest in the DBF as custodian, under the 1956 or 1964 Measures discussed earlier.

An official residence may also be acquired and held by the DBF in its own right.  The Diocesan Boards of Finance Measure 1925, as amended, provides that the DBF may not alter or dispose of a team minister’s residence without informing and consulting that minister (s.3(2)).

The Ecclesiastical Offices (Terms of Service) Measure 2009 provides that the parsonages board, not the DBF, is ‘housing provider’ for all non-incumbent diocesan officeholders who are entitled to housing as part of their ‘common tenure’ (s.4(7)).  As housing provider, the parsonages board now has similar responsibility for managing other official residences as it has for parsonages (cf Terms of Service Regulations 2011, reg 12).

As mentioned, the DBF may also be the parsonages board.  If it is not, the parsonages board has an independent power to hold property (1972 Measure, s.1(5)).  However, the common tenure regime does not require the parsonages board to be the legal owner of the housing that it provides.  ‘Housing provider‘ does not necessarily mean ‘housing owner‘.  It should be possible for a parsonages board to provide and manage a residence that is legally owned by the DBF.

(4)  Glebe

The most significant extension of the DBF’s functions since 1925 occurred when the Endowments and Glebe Measure 1976 transferred all benefice glebe to the DBF (by s.15).  Hitherto the glebe had vested in the individual incumbents and been managed from London by the Church Commissioners.

The effect of the 1976 Measure was to convert benefice glebe into diocesan glebe, making it the investment property of the entire diocese.  The DBF’s function was ‘to hold, manage and deal with the diocesan glebe land for the benefit of the diocesan stipends fund‘, i.e clergy remuneration.

The Church Property Measure 2018 makes a distinction between 2 types of glebe

(1) historic glebe, which vested in the DBF under s.15 of the Endowments and Glebe Measure 1976 and

(2) glebe held under the 2018 Measure or its predecessors, or under a reorganisation scheme (s.48(6)), i.e property acquired by the DBF after the 1976 Measure came into force.

The parish share, discussed above, is income.  The glebe, by contrast, is capital, a portfolio of capital assets.  The DBF’s functions concerning glebe are different from those concerning parish property.  While the DBF has custody of parish property, it is required ‘to hold, manage and deal with the diocesan glebe land for the benefit of the Diocesan Stipends Fund’ (s.16(1)).  The DBF both owns and manages the glebe.

To this end the DBF must have a scheme for the management of glebe land (s.17).  In managing and dealing with glebe, the DBF is itself subject to the oversight of the Church Commissioners.  Any changes to a management scheme require the Commissioners’ consent (s.17).  The Commissioners may even suspend a scheme if it is not being complied with, or not achieving ‘efficient management’ (s.18(1)), effectively putting the DBF into ‘special measures’.  The DBF is also required to report to the Commissioners on ‘such matters as the Commissioners specify’, and transactions concerning glebe (s.16(2)).

Some dealings with glebe (sale, lease, mortgage) may require the consent of the Commissioners.  However, consent is not required if the dealing is an arm’s-length commercial transaction and the DBF is advised by a qualified surveyor (s.21).  The same rules apply to the purchase of land by the DBF (s.28).  The relevant PCC and clergy must be notified of a proposed dealing (s.22).  Disposal proceeds must be allocated to the stipends fund.  The DBF must keep appropriate accounts (s.26(5) and (6)).

The DBF is empowered to require an incumbent or benefice sequestrators to provide information and documents concerning historic glebe ((1) above) in their area, and may even take them to court if they neglect to comply (s.16(4) and (5)).

Any dispute between the DBF and an incumbent or sequestrators concerning the historic glebe ‘or rights … to which the land was subject or of which it had the benefit’ is decided by the Commissioners.

Although the ownership and management of glebe was transferred to the DBF by the 1976 Measure, the Commissioners continued to hold the diocesan stipends fund for many years thereafter.  Not until the Miscellaneous Provisions Measure 2000 were the funds transferred to the DBFs (s.1(1)).  The funds are regulated by the Diocesan Stipends Fund 1953, as amended.

As well as stipends, the DBF is responsible for certain compensation payments to clergy for loss of office.  Compensation for officeholders who are made redundant as a result of pastoral reorganisation is regulated by Schedule 4 of the Mission and Pastoral Measure 2011.  An incumbent who is removed under the Vacation of Benefices Measure 1977 (though this hardly ever happens) is also entitled to compensation.

An officeholder who is dismissed for incapability under the ‘common tenure’ regime can bring a claim of unfair dismissal in the (secular) Employment Tribunal.  The DBF is respondent to such a claim and hence liable for any compensation awarded (Terms of Service Regulations 2011, reg 33).

The DBF also has an increasing responsibility for clergy pensions (and those of lay ministers).  The Pensions Measure 1997 provided that, while the Commissioners continue to be responsible for pension contributions in respect of pre-1997 service, the DBF is required to contribute to the post-1997 pension fund held by the central Pensions Board (Pensions Measure 2018, ss.9 and 10).

As part of its pension responsibilities, the DBF must appoint a widows and dependants committee, and a special officer to represent the interests of widows and dependants (2018 Measure, s.51).

Church Disposal: Statute and Squatting

King and Blair v Incumbent of the Benefice of Newburn and Newcastle Diocesan Board of Finance (2019) Upper Tribunal 176

This case concerned a family burial vault in a redundant church.  The local incumbent and the diocesan board of finance claimed ownership of the vault on the basis of adverse possession, known colloquially as ‘squatter’s rights’.  The secular Tribunal rejected the claim, for wholly convincing reasons.  Apart from anything else, there was no evidence that the incumbent or the board had ever even entered the vault.  Squatting is, by definition, a physical entry on land.

However, the most intriguing aspect of the adverse possession claim is why it was brought in the first place.  The closure and disposal of redundant churches has been a melancholy but routine procedure for the last 50 years at least, as church attendance has declined.  So why did the ecclesiastical authorities find it necessary to assume the undignified pose of squatters?  Why did the statutory powers that have been exercised for decades prove inadequate in this one case?  The Tribunal observed that ‘there is no recorded authority which is directly determinative of the principal issue raised by this appeal’ (para 18).

The judgment relates that the church was donated in 1837, and consecrated by the local bishop just 9 days later.  However, the instrument of donation reserved to the donor, and his ‘heirs and assigns’

‘the vault or burying place in the interior of the said [church] lately made by me with full power … to enlarge the said vault so only that it do not extend beyond the body of the said [church] and do not injure the walls or foundations thereof … also with full power … to open such vault … and use and repair the same at all reasonable times’ (para 2).

The Tribunal found that the vault ‘was of a completely different structure to the stone floor of the church, … being … of brick [as distinct from stone] construction’ (para 8).  There was no external entrance to the vault.  Access was only possible ‘from the interior, and not the exterior, of the church … by way of a stone pavement slab … set into the stone floor’.  In order to lower a coffin into the vault ‘further pavement stones would also need to be raised’.

The church had been closed (i.e made redundant) in 2004.  It was intended that the site be sold for (no doubt lucrative) residential development.

This was the reason for the unsuccessful claim of adverse possession of the vault.  The Tribunal stated that ‘the existence of the family vault … and uncertainty as to its true ownership … have prevented … any significant progress towards … disposal’ (para 4).  The donor’s surviving family were evidently reluctant to co-operate with the development proposal, and successfully resisted the adverse possession claim.

The Tribunal referred mysteriously to ‘the somewhat protracted and complicated procedural history of [this case]’ (para 1), but did not go into details.  However, the effect of the judgment was clearly stated: ‘if [the family] fails, the Church Commissioners will be free to dispose of the church building for residential use.  If [the family succeeds] … residential purposes [will be] unviable, the only option may be a proposal to demolish’ (para 4).

Although the Church’s claim of ownership by adverse possession was rejected, the judgment was careful to state that it gave ‘no decision’ on whether the family members involved in the case were indeed the true owners of the vault, as successors in title of the original donor (para 2).

Ownership of church buildings can be uncertain and obscure.  An old church may be a veritable bundle of property rights.  It is often said that the incumbent owns the freehold of the church, but the position is not as simple as that.  The case of Griffin v Dighton (1864) 122 English Reports 767 makes clear that ‘the freehold of the church [at common law] … is in the rector, whether spiritual or lay‘ (p.771).  If the incumbent is a mere vicar, the freehold will vest in the lay rector.

It was noted in Jones v Chapman (1869) Law Reports 4 Exchequer 273 that the freeholds of side-chapels and aisles in a church may vest in persons other than a lay rector or an incumbent (p.279), such as the heirs and descendants of those who built small chapels for family burials or (pre-Reformation) for the offering of Mass for their souls.  There must be many churches with family burial vaults.  Pews can also be subject to lay property rights.  Parishioners, of course, enjoy legal rights to attend Divine Service in their parish church, to have their marriages solemnised there, and to be buried in the churchyard.

The existence of all these disparate rights is the very reason that statutory powers are required to close and dispose of surplus churches.  Statutory authority, the ‘Parliamentary title’, is capable of overriding such rights.

The procedures for closing and disposing of churches are now consolidated in the Mission and Pastoral Measure 2011.  When the church in this case was first closed in 2004, they were found in the Pastoral Measure 1983 (itself the successor of the Pastoral Measure 1968).

The power to close a church is found at s.42 of the 2011 Measure (s.28 of the 1983 Measure).  Dealings with closed churches are regulated by Part 6 of the 2011 Measure (ss.55-79).

The general rule is that ‘the building closed for regular public worship, together with the contents thereof, shall … vest … without any conveyance or other assurance [i.e automatically], in the diocesan board of finance’ (s.61(1)).  The diocesan board of finance was indeed the legal owner of the closed church in this case (para 4).

S.71(9) (formerly s.59(9)) seems particularly germane.  It provides that a closed church ‘shall vest free of any trust or burial rights … provided that any person entitled to burial rights may claim compensation in respect of the loss … in default of agreement … determined by the consistory court … any compensation awarded shall be paid by the diocesan board of finance …’.

Viewed in the context of these statutory provisions, the adverse possession claim in this case is baffling.  When the church was closed, the burial vault should have vested automatically in the diocesan board of finance, regardless of who owned it before then.  No need for the board to claim squatter’s rights.  The donor’s family could have no claim in the secular court / tribunal, only in the ecclesiastical court, and only for monetary compensation.  And any compensation would be limited to loss of their own right to be buried in the vault (if they had one), not any other property right.

If a closed church is to be sold off to secular use (whether residential development or otherwise), s.78 (s.65 of the 1983 Measure) makes provision for the disposal of any human remains.  The detailed rules are at schedule 6.

The general rule is that remains must be removed from the church.  The personal representatives or relatives of the deceased persons are given the option of removing the remains themselves, and arranging their reinterment elsewhere, or their cremation (6(3)).  Otherwise, the Church authority takes responsibility for this.  The Secretary of State may grant a dispensation from schedule 6, if satisfied that the demolition or redevelopment of the church will not involve disturbance of the remains (s.78(3)).

Of course, all these statutory provisions only apply to a church.  The claim of adverse possession in this case becomes explicable if it is accepted that the burial vault was not part of the closed church, but a separate building.  Then the declaration of closure of the church could not have affected the ownership of the vault.

S.106 (s.87 of the 1983 Measure) defines a ‘church’ as a ‘church or chapel which has been consecrated for the purpose of public worship …’.  Thus a church building is not defined by who owns it.  A building does not have to have an ecclesiastical owner in order to be a church.  A church is defined by its (1) consecration and (2) purpose.

As the Tribunal noted, the consecration of a church extends to a burial vault (per Rugg v Kingsmill (1867) 1 Admiralty and Ecclesiastical Reports 343, at p.350).  So the consecration in 1837 applied to the vault as much as the church.  This suggests that the vault was part of the church, not a separate building.  Why should the consecration of a church extend automatically to a completely separate building?

The quotation from the 1837 instrument of donation makes clear that the donor of the church was reserving the ownership of the vault to himself and his heirs.  However, this does not make the vault a separate building from the church.  As discussed above, different parts of a single church building may be owned by different people.

The 1837 instrument itself describes the vault as being in the ‘interior’ of the church, not external to it.  The lack of any external access to the vault would also suggest that it was part of the church, not separate from it.

(With thanks, as always, to the indispensable Law and Religion blog for drawing attention to this interesting case.)

Safeguarding and Suspension: The Case of the Bishop of Lincoln

Safeguarding and Clergy Discipline Measure 2016

The Archbishop of Canterbury has recently announced that

‘[1] Following information provided by the police, I have suspended the Bishop of Lincoln …

[2] If these matters [i.e the ‘information’] are found to be proven … the Bishop would present a significant risk of harm by not adequately safeguarding children and vulnerable people …

[3] there has been no allegation that [the] Bishop … has committed abuse …’.

The police, for their part, announced that ‘investigation into non-recent sexual abuses … resulted in 3 men being convicted’.  However, ‘phase 2 of the investigation is continuing, into wider safeguarding issues and management decisions within the [Lincoln] Diocese …’.  This wording suggests that ‘phase 2’ is not investigation of an actual or alleged crime, but a police audit of the diocesan safeguarding regime, which may, or may not, produce evidence of some crime.

According to his entry in Who’s Who, the Bishop was appointed in 2011 (not all that long ago), and held no other office in the Lincoln Diocese prior to 2011.  He is said to be ‘bewildered’ by his suspension, but has obediently promised to ‘fully cooperate’.

The Lord Bishop is also a Cardiff canonist, i.e a graduate of the degree in ‘canon law’ (which might be more accurately described as ‘ecclesiastical governance’) awarded by Cardiff University and magisterially taught by Professor Norman Doe.  (A distinction shared with the author of this blog, who is, however, unacquainted with the Bishop.)  The subject of the Bishop’s thesis was ‘The Parson’s Freehold in the Church of England: legal fiction and psychological reality’ (Ecclesiastical Law Journal 2003, p.376).

The 2016 Measure cited above was passed in response to distressing cases of ‘non-recent’ sexual abuse by clergy.  It made significant amendments to the Clergy Discipline Measure 2003.

The words ‘suspend’ or ‘suspension’ occur no fewer than 97 times in this relatively short Measure, including the headings of 5 of its 12 sections.  (The Suspension and Clergy Discipline Measure?!)  Perhaps the Bishop should not have been  bewildered by the treatment that he has received.

S.37 of the Clergy Discipline Measure, as amended by the 2016 Measure, now provides that the Archbishop may (not must) suspend a bishop (with the concurrence of 2 other senior bishops), if satisfied ‘on the basis of information provided by a local authority or the police‘, (not from other informants) that the bishop presents ‘a significant risk of harm‘.  Thus it is the Archbishop who must be satisfied that there is a significant risk, not the police or the local authority.  S.36 of the Measure makes similar provision for lesser clergy.

S.1(2A) defines ‘significant risk of harm’ as a significant risk that the Bishop (or other officeholder) may

(a) harm a child

(b) cause a child to be harmed

(c) put a child at risk of harm

(d) attempt to harm a child

(e) incite another person to harm a child.

(This definition comes from the Safeguarding Vulnerable Groups Act 2006.)

On their wording, (a), (d) and (e) require risk of some positive harmful act by the suspended person.  (b) can include risk of a negligent omission which causes actual harm.  The Archbishop’s statement makes clear that the ‘risk’ alleged against the Bishop does not fall within the scope of (a), (b), (d) or (e).

So the suspension can only be justified (if at all) on ground (c).  Clearly ground (c) is much broader than the others.  There must be a huge number of acts or omissions that are potentially capable of risking harm.

Ground (c) therefore requires

(1) a risk of harm and

(2) an act or omission that puts the child at that risk.

To put is defined in the dictionary as ‘move [child] so that it comes into some situation’.  The act or omission must be one that moves the child into a position of risk.

If a hypothetical bishop were to appoint a vicar whom he knew possessed child-harming tendencies, that could indeed put the children of the vicar’s parish at risk of harm.  However, it may be difficult to decide when the link between (1) the risk of harm and (2) the bishop’s act or omission is so tenuous and remote, or speculative, that it does not fall within ground (c).

For example, there may be information in diocesan records about a vicar who transferred out of the diocese some time ago.  A new bishop is appointed, is made aware of the information, but takes no action.  He has never been responsible for the oversight and discipline of the vicar.  The vicar may indeed constitute a risk to children in his new diocese.  But it could be argued that the children were ‘put’ at risk by those who managed the vicar’s transfer, not by the bishop who was only appointed after this happened.

The allegation against the Bishop of Lincoln, of ‘not adequately safeguarding children’, is vague, and much wider than the statutory ground of suspension ‘put[ting] a child or vulnerable adult at risk of harm’.  (Particulars of the allegation are not being disclosed.)  Not every failure of safeguarding procedure will amount to putting a child at risk.

It should also be remembered that suspension speaks to the future, not the past.  It is concerned to protect children from being harmed, not to punish past harm.  A past safeguarding failure will not always establish a significant risk of future harm, if failure is acknowledged and lessons learned.

As its title implies, the 2016 Measure is concerned with (1) the safeguarding of children etc and (2) clergy discipline.  These 2 functions are distinct.  Clergy discipline is particular to the Church.  Safeguarding children is a duty that the Church shares with the secular state.

The power of suspension engaged in this case is concerned with safeguarding (1), not with clergy discipline (2).  As mentioned, it may only be exercised on the relation of the secular authorities, not by the Church of its own motion.  It is an emergency, interim power.  Its purpose is to assist the secular state to fulfill its duty to protect children.  If the feared risk of harm to children proves substantial, it is the responsibility of the secular authorities to take further legal action, under the secular law, to ensure that the children are safeguarded.

Clergy Discipline is addressed elsewhere in the 2016 Measure.  S.5(1) of the Measure introduced a new and specific safeguarding duty.  This provides that bishops and other clergy ‘must have due regard to guidance issued by the House of Bishops on matters relating to … safeguarding’.  S.8(1)(aa) of the 2003 Measure (as amended by the 2016 Measure) now provides that failure to have ‘due regard’ to this guidance now constitutes misconduct.

The Church of England’s internet website refers to no fewer than 18 statements of guidance: 3 ‘policy statements’, 13 ‘practice guidances’, plus ‘Q and As’, and 2 items of ‘joint practice guidance agreed with the Methodist Church’.  It warns that ‘All the policy and practice guidance on this page has been approved by the House of Bishops [under s.5(1)] and must … be followed’.  It suggests that ‘due regard’ to the guidance means that the subject ‘is required to follow it unless there are cogent reasons for not doing so’.

The specific safeguarding duty is recent.  It cannot be imposed retrospectively.  However, there has always been a disciplinary offence under the 2003 Measure of ‘neglect or inefficiency in the performance of the duties of … office‘ (s.8(1)).  At least one case brought under the 2003 Measure indicates that disciplinary tribunals are willing to interpret ‘duties of office’ to include a common law duty to take care (or something resembling it), as well as duties specifically prescribed by ecclesiastical law.  (See ‘Armstrong v Robinson: The Cares of Office‘, filed below in this category.)

The Bishop has not (not yet, anyway) been charged with failure to comply with the s.5(1) duty, or with any breach of clergy discipline.  Any disciplinary proceedings would be subject to the 1 year limitation period, as provided by s.9(1) of the 2003 Measure.

(Websites accessed 18th May 2019.)

Confession: Sacrament, Secrecy and Safety

Church of England Report of the Seal of the Confessional Working Party (March 2018)

The Report discusses the proviso of canon 113 of 1603, which concerns the practice of private confession.

Alone among the 141 canons of 1603, the proviso was not repealed in the 1960s.  It is now somewhat untidily appended to the revised canons.  According to an earlier report, Church and State (1970), the reason for retaining the proviso was a fear that any revised canon might be contrary to the secular law of evidence (the duty of a witness to tell ‘the truth, the whole truth and nothing but the truth’) (pp.58-9).

The proviso of canon 113 states that

‘if any man confess his secret and hidden sins to the Minister, for the unburdening of his conscience, and to receive spiritual consolation and ease of mind from him; we … do straitly charge and admonish him [i.e the Minister], that he do not at any time reveal … any crime or offence so committed to his trust and secrecy …’.

The new Report seeks to address concerns that the 1603 proviso may cause avoidable harm to children, because it prevents confessors from reporting sexual abuse confessed to them, and also protects abusers from justice.

However, as the Report notes, the rule of secrecy in the proviso is not absolute.  The proviso does permit a confessor to reveal ‘such crimes as by the laws of this realm his own life may be called into question for concealing the same …’.

This is a reference to confessions of treason.  Sir Edward Coke held that ‘the privilege of confession extendeth only to felonies … if high treason be discovered to the confessor, he ought to discover it [i.e disclose it], for the danger that thereupon dependeth to the King and the whole Realm’ (p.25)

The proviso is therefore a compromise between canon law and English law.  The famous ‘seal of confession’ comes from canon law (apparently the fourth Lateran Council of 1215).  However, it is limited by English law to a privileged exception that does not extend to the most serious crimes.

‘Privilege of confession’ is indeed a more accurate description of the 1603 proviso than that in the title of the Report.  The proviso is an exception to the general rule that wrongdoing should be publicly tried and punished.  ‘Seal of the confessional’ is a clumsy cultural appropriation from the Roman Catholic Church.  (A confessional is, of course, a box, a fixture or piece of furniture that was probably only introduced into Catholic churches after the break with Rome, and is certainly unknown to English law.)

The Roman Catholic Code of Canon Law 1983 (and its predecessor, the 1917 Code) refers to the ‘sacramental seal’ (sacramentale sigillum, canon 983(1)).  A comparative study of the Roman Catholic law concerning confession may illuminate the current controversy over the 1603 proviso.

The 1983 Code makes clear that penance (now commonly called ‘reconciliation’) is one of ‘the [seven] sacraments of the New Testament, instituted by Christ the Lord’ (canon 840).  It also strongly emphasises the obligatory nature of the sacrament:

‘Individual and integral confession and absolution constitute the only ordinary way by which the faithful person who is aware of serious sin is reconciled with God and the Church: only physical or moral impossibility excuses the person from confession of this type’ (canon 960).

The faithful are required ‘to confess serious sins at least once a year’ (canon 989).  All serious sins must be confessed ‘in kind and in number’, and ‘It is to be recommended … that venial sins also be confessed’ (canon 988).

The Council of Trent held that ‘the absolution of the priest is … not a bare ministry only … but is after the manner of a judicial act, whereby the sentence is pronounced by the priest as a judge‘ (14th session).  The 1983 Code provides that ‘In hearing confessions the priest … acts as a judge as well as a healer and … as the minister of Divine justice as well as of mercy …’ (canon 978(1)).

The confessor’s judicial function is exercised in the internal forum of jurisdiction.  The internal forum is the subject of a helpful commentary by J I Arrieta (Studia Canonica 2007, p.27).  Arrieta makes clear that juridical acts in the internal forum may be either

(1) sacramental (i.e absolution) or

(2) non-sacramental (e.g dispensations, commutations of penance).

The seal only applies to sacramental acts.  Non-sacramental acts are generally confidential, out of respect to the subject’s right of reputation (cf canon 220).  However, the right of reputation is not absolute in a non-sacramental case, so confidentiality may be withdrawn in certain circumstances.

This account indicates a radical difference between Roman Catholic law and English law.  Article 25 is clear that penance and the four other rites ‘commonly called sacraments’ are ‘not to be counted for sacraments of the Gospel … have not like nature of sacraments with Baptism and the Lord’s Supper [the Eucharist], for that they have not any visible sign or ceremony ordained of God’.

Thus the proviso of canon 113 concerning confession cannot be a sacramental seal, since there is no sacrament of confession.  As it is not one of the two sacraments ‘ordained of Christ our Lord in the Gospel’ (Article 25), confession and penance can be no more than one of the ‘rites of the Church ordained only by man’s authority’ (Article 34).

English law is also very clear that confession is always voluntary, entirely at the option of the penitent.  There is no obligation to confess even the gravest of sins.  Sir Lewis Dibdin, Dean of the Arches, observed in the case of Banister v Thompson (1908) Probate 362 that ‘the compilers of our liturgy … in the 16th century … proceeded on a very clearly defined principle.  They asserted the liberty and the responsibility of the individual … laying far greater emphasis on the duties of self-examination and of direct confession of sin to God’ (pp.381-2).

Canon C29 of the revised canons, which is entitled ‘Of the Ministry of Absolution’, continues to observe the 16th century principle.  Baptised persons must ‘confess themselves to Almighty God … that they may receive of Him … forgiveness … seeking forgiveness especially in the general confessions … and in the [general] absolutions … in the services of the Church’ (1).

However, private confession is offered to ‘any who … cannot quiet his own conscience, but requires further comfort or counsel … [to] receive the benefit of absolution … to the quieting of his conscience …’ (2).  It is also offered to ‘a sick person, if he feels his conscience troubled in any weighty matter’ (3). These provisions of canon C29 closely follow those of the Book of Common Prayer.

If private confession is non-sacramental and voluntary, a concession to human weakness, then English confessors cannot exercise any kind of jurisdiction in hearing confessions.  Their function is limited to advice and moral support to a penitent who seeks this.  Any absolution pronounced in the course of a private confession will be the same as the general absolution pronounced in public services.  (Just as Holy Communion is the same, whether administered publicly in church or privately at the sickbed.)

As the Report observes, confession in the Church of England may take place as part of a liturgical rite that resembles the Catholic sacrament (e.g in an Anglo-Catholic parish) or more informally, in the context of a pastoral conversation (cf p.9).  However, this does not justify treating the confessions differently, since they are equally non-sacramental and equally voluntary.

This discussion may suggest the following conclusions:

(1) the privilege of confession in English law is not the same as the sacramental seal in canon law.  The privilege of confession has always been a qualified one.

(2) the strictness of the Roman Catholic law concerning the seal of confession must be understood in the context of the Catholic doctrine that private confession is part of a Divine sacrament, reception of which is obligatory.  English law denies this doctrine.

(3) English confessors act as professional advisers and counsellors, regardless of whether they officiate in a liturgical or in a pastoral context.  They should therefore owe a similar duty of confidentiality to penitents to that owed by their secular counterparts to clients or patients.

(4) For these reasons, it would not be a radical new departure to permit, or even require, confessors to report a well-founded concern that a penitent presents a risk of serious harm.  Such a change of the ecclesiastical law would merely reflect the change of political priorities since the early modern period.  An overriding concern for the safety of the state (from treason) has been succeeded by a similar concern for the safety of children (from sexual abuse).

Smells and Bells: Services and Ceremonies

The Abolition of the 1662 Regime

When studying ecclesiastical law for the first time, it comes as a surprise to learn that liturgical practices now widespread, even universal, in the Church of England, practices with which the student has been familiar since early childhood, were once considered illegal.  The reasons for this are discussed in 2 posts, on the Ornaments Rubric and the Lincoln Judgment, filed below.

Some liturgical practices have been accepted more readily than others.  The burning of incense has probably been the most consistently controversial practice.  (That and the ringing of a bell during the Prayer of Consecration in the Communion Service.)  ‘Smells and bells’ continued to inspire mild resentment until relatively recently, and were identified with a small clique of Anglo-Catholic ritualists.

In the case of Martin v Mackonochie (1868) Law Reports 2 Admiralty and Ecclesiastical 116, Sir Robert Phillimore, the Dean of the Arches, found that incense ‘is not directly ordered in any Prayer Book, canon, injunction, formulary or visitation article of the Church of England since the Reformation’ (p.215).  He therefore concluded, with obvious reluctance, that ‘although … it be an ancient, innocent and pleasing custom, I am constrained to pronounce that the use of it … is illegal’.

There is actually nothing Christian or ‘catholic’ about incense.  It is an inheritance from pagan antiquity (which may be a good reason for opposing its use in church services).  But the aesthetic charms which seduced Sir Robert have evidently prevailed at last.  Incense now seems to be uncontroversial and widely used in cathedrals and churches throughout England, by Archbishops and bishops as well as lesser clergy, its use no longer confined to a small clique.

Are the liturgical practices forbidden in Victorian times now legal?  Surely they must be, or they would not be so widespread?  But it still behoves ecclesiastical lawyers to explain how they are lawful, even if nobody else is interested.  General acceptance per se does not prove legality.

The full title of the Book of Common Prayer is ‘The Book of Common Prayer and Administration of the Sacraments, and other Rites and Ceremonies of the Church according to the Use of the Church of England’.  In Martin v Mackonochie, Phillimore defined rites as ‘services expressed in words’ and ceremonies as ‘gestures or acts’ (pp.135-6).  On this definition the burning of incense is a liturgical action, therefore a ceremony.

The Preface of the Book of the Common Prayer concerning ceremonies is subtitled ‘Why Some be Abolished, and Some Retained‘.  This was the basis of the Victorian case law.  All ceremonies not retained in the Prayer Book (either expressly or at least by necessary implication) had been abolished, including incense.  Their use was therefore illegal.

The authority for the Prayer Book, including the Preface, came from the Act of Uniformity 1662. just as previous versions of the Prayer Book, from 1549 onwards, depended on earlier Acts of Uniformity.

The Act of Uniformity was repealed by the Worship and Doctrine Measure 1974.  Schedule 2 of the Measure says of the 1662 Act ‘Extent of Repeal … The whole Act except ss.10 and 15′ (which sections provide that only episcopally ordained clergy may be appointed to benefices and officiate at Holy Communion, and that preachers or ‘lecturers’ must be licensed).

S.1 of the Worship and Doctrine Measure empowers the General Synod ‘to make provision by canon with respect to worship’, and that ‘any such canon shall have effect notwithstanding anything inconsistent therewith … in … the rubrics of the Book of Common Prayer’.

S.5(2) of the 1974 Measure expressly includes the prefaces of the Prayer Book within its definition of ‘rubrics’.  The only 1662 rubric which continued to have the force of law after 1974 was that concerning the publication of banns of matrimony (s.1(1)(b)).

Commentaries on ecclesiastical law do not explain the effect of the 1974 Measure with anything like sufficient clarity.  The reader may be left with the impression that the 1974 Measure merely amended the 1662 regime, rather than replaced it.  The suggestion persists that the rubrics and prefaces of the Book of Common Prayer continue to have the force of law, and that the cases thereon are, or at least may be, still ‘good law’ (i.e current law).  (The confused cogitations of Chancellor Bursell QC, the leading commentator on the subject, are discussed in other posts, filed below in this category.)

Yet, subject to the narrow exceptions just mentioned, the 1662 regime of public worship is no more.  It has ceased to be.  The voluminous case law concerning liturgical ceremonies can therefore no longer be good law.  It may be true that the case law forms an important part of the context of the modern post-1974 law, explaining why and how the new law came to be what it is.  So it may still be relevant to the study of ecclesiastical law.  Nevertheless it is no longer part of the law itself.

The 1974 Regime

The repeal of the 1662 regime could not, of course, have the effect of reviving or reinstating the mediaeval liturgical practices abolished at the Reformation.  However, it does mean that liturgical practices not retained or referred to in the Book of Common Prayer are prima facie permitted, no longer forbidden – subject, of course, to the canons made by the General Synod under s.1 of the Worship and Doctrine Measure.

Public worship is now governed principally by canons B1 to B5 of the revised canons (‘the liturgical canons’), which were promulged under the authority of s.1.

Although the 1974 Measure provides greater diversity of worship than the 1662 regime, it is far from being a liturgical free-for-all.  Canon B1 is entitled ‘Conformity of Worship‘, and contains the strict injunction that ‘Every minister shall use only the forms of service authorised by this canon’ (B1(2)).

However, there are 2 exceptions to this rule, at canon B5

(1) an officiating minister may introduce ‘variations which are not of substantial importance’ into an official service and

(2) an incumbent (not just any officiating minister) may use or permit ‘forms of service considered suitable by him’, but only ‘on occasions for which no provision is made in [the official services]’.

The 1974 Measure specifically authorised the General Synod to allow these exceptions (s.1(5)).  However, the discretionary powers in canon B5 are not unfettered, but subject to the ‘pastoral guidance, advice or directions’ of the bishop (B5(4)).

If an official service contains a rubric or direction expressly permitting the use of incense (or some other ceremony considered illegal under the 1662 regime) then this ceremony will obviously be lawful for use in that service.  The legal position will be equally clear if an official service positively provides that incense shall not be used at the service.  But what if (as seems to be the case in practice) official forms of service are silent about such ceremonies?

To answer this question it is first necessary to answer another question: what is a ‘form of service’?

The Worship and Doctrine Measure defines a form of service as ‘any order, service, prayer, rite or ceremony’ (s.5(2)).  This reference to rites and ceremonies echoes the language of 1662.

The revised canons at first gave no definition of ‘form of service’.  Then in 1994, 20 years after the Worship and Doctrine Measure was passed, the liturgical canons were amended.  Canon B1(3) now provides that

form of service shall be construed as including

(i)   the prayers known as collects

(ii)  the lessons designated in any Table of Lessons

(iii) any other matter to be used as part of a service

(iv) any Table of Rules for regulating a service

(v)  any [approved] Table of Holy Days …’.

Thus the explicit reference to ceremonies in the 1974 Measure does not appear in the liturgical canons, either in canon B1(3) or elsewhere.  (The phrase ‘rites and ceremonies’ does appear in canon B3(1), but only as part of the definition of a church building, not in relation to a form of service.)

It is hard to believe that this omission was accidental.  There may have been a deliberate policy of silence on the subject, to avoid reviving old disputes, or from fear that the 1974 regime would prove just as ineffectual at regulating ceremonies as its predecessor.

However, although canon B1(3) does not expressly refer to ‘ceremonies’, it does define ‘form of service’ as ‘any other matter to be used as part of a service’.  Is this wording broad enough to include ceremonies?  Chancellor Bursell considered that the reference to ‘forms of service’ in the liturgical canons does indeed include ceremonies, and that therefore ceremonies are regulated by canons B1 to B5 (cf St John’s, Chopwell (1995) 3 Weekly Law Reports 606, p.611 and p.615).

If Bursell is right about this (and he may be) then prima facie the position will be similar to that which obtained in Victorian times.  Ceremonies will be just as illegal now as they were then, unless they are clearly permitted by the rubrics of an official service.

But now, of course, there are the 2 exceptions to the general rule that only official forms of service may be used.  The burning of incense and other ceremonies will be lawful if

(1) they can be accommodated within the canon B5 discretions, and

(2) the bishop is prepared to accept them.

However, the language of canon B5 may not be very apt to permit the use of incense and other ritualistic practices.  Exception (2) refers to forms of service for special occasions, not to ordinary Sunday and weekday worship.  Exception (1) clearly does apply to ordinary worship.  However, the word ‘variations’ suggests that the exception concerns the alteration of the liturgical text, its structure and wording.  It does not refer to the addition of ceremonies that are not referred to in that text.

Many years before the 1974 Measure was passed, the report The Canon Law of the Church of England (1947) proposed a draft canon which would have permitted ‘deviations (whether by way of addition, omission, alternative use or otherwise)’ from Prayer Book services (p.113), but this proposal was not followed.

In the view of the long and bitter controversy over ritualism, it may be hard to argue that ritualistic practices are ‘not of substantial importance’.  Clearly they were very important both to the ritualists and their Low Church opponents.  In the 19th century a few ritualist clergy were even prepared to go to prison rather than conform to the 1662 regime.  It is also unclear why a ceremony should be permitted if it is ‘not of substantial importance’, but forbidden if it is of substantial importance.

A Policy of Silence

It is therefore argued that, contrary to Bursell’s view, canons B1 to B5 do not attempt any general regulation of liturgical ceremonies.  The Worship and Doctrine Measure certainly empowers the General Synod to regulate ceremonies, but the General Synod has (thus far) not chosen to exercise the power.

This is the obvious explanation for the lack of explicit reference to ceremonies in the liturgical canons.  The enigmatic reference in canon B1(3) to ‘any other matter to be used as part of a service’ should be understood as a reference to the written texts of services, not to ceremonies.

If it is accepted that canons B1 to B5 do not refer to ceremonies in general, this avoids an overly strict, neo-Victorian interpretation of the principle of liturgical conformity.  It also avoids the awkwardness of accommodating ceremonies within the language of the canon B5 exceptions.

The principle of conformity means that

(1) clergy must only use official forms of service, not services devised by themselves, or services ‘borrowed’ from other sources, except for a special occasion for which no official form is provided, and

(2) when using an official form of service, the officiating minister must respect the structure and wording of the text, and not take liberties, except to the limited extent permitted by canon B5(1).

However, the liturgical canons do not forbid, or even restrict, ceremonial actions performed during official services, so long as such actions do not conflict with the structure and text of the service.

There may be an analogy between ceremonies and music. Music is obviously an important part of worship, but it has not been suggested that canons B1 to B5 regulate music.  Music is  regulated by canon B20.  Canon B20 entrusts the control of liturgical music to the officiating minister, though the minister is required to ‘pay due heed’ to the organist or choirmaster, and also to ensure that the music is ‘appropriate … to the solemn act of worship’, and ‘to banish all irreverence’.

It is argued that an officiating minister has a similar control of liturgical ceremonies as of music.  It may be anomalous that music is specifically regulated by the revised canons while ceremonies are not.  However, music has proved much less controversial in the past than ceremony, and is therefore easier to regulate.

The silence of the revised canons concerning ceremonies is consistent with a sensible policy of tolerance and avoiding controversy.  Moreover, the silence does not mean that ceremonies are entirely at the whim of the individual vicar.  There are 3 legal restrictions on ceremonies

(1) as mentioned earlier, a ceremony will be unlawful if used during a form of service which positively forbids it.  A vicar who performed such a forbidden ceremony, and ignored the bishop’s warning to desist, would be guilty of an ecclesiastical offence of disobedience under the Clergy Discipline Measure 2003, s.8.

(2) a ceremony which conflicts with the Church’s doctrine will be unlawful, even if it is not positively forbidden by official forms of service.  The Ecclesiastical Jurisdiction Measure, s.10(1), continues to provide for disciplinary action to be taken in respect of offences against doctrine, though no such action has ever been taken.

(3) all ceremonies are subject to the requirement of reverence.  The revised canons repeatedly insist that public worship must be performed ‘reverently’ (canons B10, B11(1), B13(1), B14(1)).  Reverence may be a matter of cultural value judgement to some extent.  But a vicar who introduced some ceremonial action that was considered so grossly inappropriate (an example will not be attempted) as to contravene the requirement of reverence would also be liable to disciplinary action for disobedience under the Clergy Discipline Measure.

The Lincoln Judgment

Read v Bishop of Lincoln (1890)

Edward King (1829-1910) is now commemorated in the Church of England’s liturgical Calendar (the nearest Anglican equivalent of canonisation), and by an impressive statue in Lincoln Cathedral, where he officiated as Bishop.  He was revered for his holiness, learning and pastoral zeal.  The Dictionary of National Biography suggests that he was the first Anglican bishop to wear a mitre.

However, Bishop King’s Anglo-Catholic ritualism was not to everyone’s taste.  The Church Association, a Low Church pressure group represented by Mr Read, complained about it to the Archbishop of Canterbury.

The complaints about the Bishop’s ritualism were similar to those made against the Rev Alexander Heriot Mackonochie (1825-1887), Vicar of St. Albans Church, Holborn, who also fell foul of the Church Association, represented this time by Mr Martin.  Mackonochie was prosecuted twice in the Court of the Arches.

Sir Robert Phillimore, Dean of the Arches (and original author of the famous commentary on ecclesiastical law), tried both the Mackonochie cases.  He upheld some of the complaints against Mr Mackonochie, but dismissed others.  However, the Church Association appealed to the Privy Council, which overruled Sir Robert and upheld the complaints that he had dismissed.

Mr Mackonochie was prosecuted under the Church Discipline Act 1840.  He was a mere vicar.  There was then no statutory procedure for the trial of a bishop.  The Archbishop of Canterbury, Edward White Benson, decided to try the case against Bishop King personally, under a common law procedure formally described as ‘the Court of the Archbishop’ (or, less formally, ‘the Archbishop in his library’).

In Bishop of St David’s Case (1699) 91 English Reports 126, the secular court accepted 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).  Accordingly ‘the Archbishop hath a provincial power over all bishops of his province and may hold his court where he will, either at the Arches or elsewhere.  He may likewise convene the [accused] party before himself and judge himself …’ (p.711).  This was the authority for the Lincoln Judgment.

The Lincoln Judgment resembles Phillimore’s judgment in Martin v Mackonochie (No.1) (1868) Law Reports 2 Admiralty and Ecclesiastical 116.  Both are very long:  Sir Robert’s runs to 130 pages, the Archbishop’s to a mere 89 pages.  They are long for the same reason: copious citation and discussion of theological and historical materials.  The Privy Council later observed that the Archbishop ‘consulted ancient authors, historical and theological works, pictures, engravings and a variety of documents … (1892) Appeal Cases 644, at p.652.  All this erudition is impressive, but it also makes the judgments arduous to read.

The complaints against Mr Mackonochie and the Bishop of Lincoln mostly alleged the performance of illegal ceremonies.  The Archbishop defined a ceremony as ‘a formal symbolic gesture of religious meaning publicly made by the Minister in his character of Minister, rendering the delivery of language more solemn, and not merely expressing his private devotion’ (p.81).  Thus a ceremony is a public act, to be distinguished from a private devotional act.  A ceremony is an action.  It must therefore be distinguished from a rite (which is a form of words) and from an ornament (a physical item).

The Bishop was charged with the following offences

(1) Mixing Water with Wine

(2) Administering the Mixed Chalice

1549 rubric: ‘the minister … putting the Wine into the Chalice … [and] putting thereto a little pure and clean water’

1552 and 1558 rubrics: no equivalent

1662 rubric: ‘the priest shall … place upon the Table so much Bread and Wine, as he shall think sufficient’.  (No reference to water).

The Archbishop concluded that the removal of the 1549 rubric from the 1552 Prayer Book meant that the ceremony of mixing water with wine must be discontinued.

However, he concluded from a review of the historical evidence that

(1) mixing before the Communion Service had begun was the practice of the Early Church and

(2) the reformers were aware of this, and sought to replicate the practice.

Therefore mixing before the service was not an illegal ceremony, but a permitted practice.

(3) Ablution

1662 rubric: ‘if any [Bread and Wine] remain … which was consecrated … the Priest and such other of the Communicants as he shall call unto him, shall, immediately after the Blessing, reverently eat and drink the same’.

This rubric clearly contemplates that the consumption of leftovers may be done in public, as it provides that

(1) the priest may consume together with other communicants, not alone, and

(2) consumption shall take place immediately, without delay, therefore at a time when the congregation will still be present.

The Bishop’s action complied with the rubric and was not an illegal ceremony.

(4) Eastward Position

1549 rubric: ‘The Priest standing humbly before the middle of the Altar’

1552 rubric: ‘The Table … shall stand in the body of the Church, or in the Chancel … the Priest standing at the north side of the Table’.  (‘Table’, not ‘Altar’ any more.)

1558 and 1662 rubrics: ditto.

1662 rubric: on the Offertory ‘the Priest … shall humbly present and place it upon the Holy Table’.

The rubrics only refer to the Eastward and Northward positions in relation to the opening prayers in the Communion Service.  They are silent as to the correct position during the Consecration.  The Archbishop pointed out that the Offertory Rubric necessarily requires the priest to face east.

The Archbishop denied that the Eastward position ‘conveys some sacrificial doctrine of the Eucharist against the doctrine of the English Church’.  He observed that the Tractarians ‘habitually celebrated at the North End, and many who have used the Eastward position have done so with no thought that they were teaching any doctrine by it …’ (p.43).

He concluded that ‘The imputed sacrificial aspect of the Eastward position is new and forced, and can take no effect in rendering that position either desirable … or illegal’ (pp43-44).  It was therefore permitted.

(5) Not Breaking the Bread ‘before the People’

1662 rubric: ‘the Priest, standing before the Table, [should have] so ordered the Bread and Wine, that he may … break the Bread before the People’.

Breaking the Bread is one of the 5 Manual Acts

(1) Taking the Paten

(2) Breaking the Bread

(3) Touching the Bread

(4) Taking the Cup

(5) Touching the Cup and any other vessel containing Wine.

This rubric is difficult to reconcile with the Archbishop’s conclusion on the Eastward position. ‘The Minister, wherever he stands during the Prayer of Consecration, is bound to take care that the Manual Acts should not by his position be rendered invisible to the bulk of the Communicants’ (p.49).

As the Bishop was in the Eastward position during the Prayer of Consecration, the congregation could not see him breaking the Bread.  This contravened the Rubric.

Moreover, as the Archbishop himself acknowledged, ‘the tenor of the Common Prayer is openness … and specially to replace [i.e reinstate] the Eucharist in its [original] character as the communion of the whole Body of Christ’ (p.50).

(6) Reciting the Agnus Dei

The Agnus Dei is a prayer or hymn, therefore a rite, not a ceremony.  It appeared in the original Book of Common Prayer 1549, but was omitted thereafter.  The reason for this omission was ‘because it was associated with the Mass and the adoration of the Host’, but not because of any doctrinal objection.  On the contrary, the 2 clauses which compose the Agnus Dei are ‘taken out of the Bible’ (p.60).  They also appear in the Gloria In Excelsis, which was never omitted from the Prayer Book.

The Archbishop pointed out that it had never been considered illegal to sing a hymn or anthem during the Communion Service, even where this is not expressly prescribed.  The Act of Uniformity 1548 also provided that ‘it shall be lawful … to use openly any psalms or prayer taken out of the Bible at any due time’.

Recitation of the Agnus Dei was therefore not unlawful.  This conclusion actually contradicted that of Phillimore, who had held that it was unlawful: Martin v Mackonochie (No.2) (1874) Law Reports 4 Admiralty and Ecclesiastical 279.  However, his son and editor, Sir Walter Phillimore, conceded that ‘this question was argued more thoroughly [in the Lincoln case] than it had been previously’ (Ecclesiastical Law, 2nd ed 1895, p.776).  The Archbishop’s reasoning is indeed compelling on this point.

(7) Lighted candles on the Communion Table ‘as a matter of ceremony and when … not wanted for the purpose of giving light’.

Lighted candles were clearly lawful before the Reformation (p.66).  Were they outlawed at the Reformation?

There is no specific rubrical reference to candles, but candles are clearly ‘ornaments of the church’, and therefore governed by the Ornaments Rubric.  In Mackonochie (No.1), however, Phillimore considered that the use of lighted candles was a ceremony, and the Privy Council was ‘disposed to agree’: (1868) Law Reports 2 Privy Council 365, at p.385.  It pointed out that ‘There is a clear and obvious distinction between

[1] the presence in the church of things inert and unused and

[2] the active use of the same things as a part of … a ceremony’.

However, the Archbishop dealt with the lighted candles as ornaments, not ceremony.  He held that ‘it does not appear that [the Ornaments Rubric] … altered the legality of the 2 lights … if it was legal up to this time that they should so stand’ (p.71).

The conclusion that lighted candles were not illegal (whether qua ornament or qua ceremony) flatly contradicted the Privy Council’s decision in Martin v Mackonochie (No.1), though it agreed with Phillimore’s decision which the Privy Council had overruled.

Mr Read did not neglect to inform the Privy Council of the Archbishop’s apparent disregard of its authority.  The Privy Council admitted that ‘If the proof [i.e evidence] corresponded with the allegation [against the Bishop] … it would be a matter for grave consideration how far the Archbishop’s elaborate exposition of the history of the question … [has] afforded new materials for consideration since the decision of this Board in Martin v Mackonochie upon the same subject’ (pp.666-7).

However, nearly a quarter of a century had passed between the first prosecution of Mr Mackonochie and the Lincoln Judgment.  Judicial attitudes to ritualism were evidently more relaxed by then.  The Privy Council was obviously unwilling to overrule the Archbishop.  It therefore identified an ingenious distinction between the facts of the 2 cases.

The true issue in both cases was not whether lighted candles were lawful or unlawful, but whether Mr Mackonochie or the Bishop had acted illegally.  Mr Mackonochie had acted illegally, because he was a vicar and officiating in his own church when the candles were lit.  They must have been lit either by him personally or by someone else at his direction.

The Bishop, by contrast, had not acted illegally, because he had not lit the candles, nor caused them to be lit.  (At least, there was no evidence that he had.)  The candles were the responsibility of the vicar of the church where the Bishop was officiating.  The Bishop may have approved of the lighted candles but approval per se did not amount to an ecclesiastical offence.  Any criminality in respect of the candles attached to the vicar, not the Bishop, and the vicar was not on trial.

(This distinction might be persuasive if the bishop had been officiating outside his diocese, as a visitor or guest.  As it was, however, the Bishop was officiating in his own diocese, and therefore in a place where he had the chief cure of souls, and was the vicar’s canonical superior.  In these circumstances, it could well be argued that the Bishop was ultimately responsible for the candles.)

It was therefore on the basis of this dubious and hairsplitting technicality that the Lincoln Judgment was allowed to stand, notwithstanding the Privy Council’s contrary conclusion in Mackonochie.  The Privy Council did not actually accept the Archbishop’s conclusion on candles, and did not repent of its earlier decision.  It merely agreed with the Archbishop that the Bishop had not acted illegally, but for different reasons.

(8) Sign of the Cross in Absolution

The Prayer Book refers only to the Sign of the Cross in baptism, not elsewhere.  It was argued for the Bishop that ‘omission of a direction is not a prohibition’ (p.82).  The Archbishop considered that the ceremony could only be lawful if it had been practised in the mediaeval Church.  The Prayer Book could not be expected to prohibit a practice that was then unknown.

Having reviewed the mediaeval English liturgies, the Archbishop found that ‘there is no direction for even … private crossing of himself by the priest’ (p.83).

If it was not a revived mediaeval practice, the Sign of the Cross in Absolution must be ‘An observance … borrowed and introduced from foreign [i.e popish] usages’ after the Prayer Book was written (p.83).  Thus it could not be treated as a practice omitted, or tacitly approved, by the rubrics.  On the contrary, it was ‘an innovation which must be discontinued’ (p.84).

(9) Sign of the Cross in Benediction

1549 rubric: ‘the Priest turning him to the people, shall let them depart with this Blessing’

1552 rubric: ‘the Priest or the Bishop, if he be present, shall let them depart with this Blessing’

In the mediaeval Mass, apparently, there was no final blessing by the priest, merely a dismissal of the faithful with such words as Ite, Missa Est or Benedicamus Domino.  A blessing was pronounced only by the bishop, if he were present.  This special episcopal blessing did not involve the Sign of the Cross, merely the lifting up of the hand (p.85).

The closing blessing in the Prayer Book could not therefore be a continuation or revival of a mediaeval ceremony (p.87).  The Prayer Book blessing did not provide for or permit the Sign of the Cross, any more than the Absolution.

The conclusions reached by the Lincoln Judgment are generally persuasive, with the exception of (4), concerning the Eastward Position.  However, the Judgment can be criticised to the extent that it

(1) relied too much on extraneous material that was either irrelevant or of marginal relevance and

(2) paid insufficient regard to the Book of Common Prayer, which was the true source of authority for its conclusions.

Conclusion (8) best illustrates the confusion of erudition and authority.  The Archbishop held that the Sign of the Cross in Absolution was illegal because it was a modern, post-Reformation ceremony, and not a mediaeval ceremony.  If it had been a mediaeval ceremony, it would have been lawful.

Yet the Preface to the Book of Common Prayer ‘Concerning Ceremonies’ is unequivocally subtitled ‘Why some be abolished, and some retained’.  The dichotomy is clear.  A ceremony is either abolished, or it is retained.  All ceremonies not retained in the Prayer Book are abolished.  The question whether a particular ceremony is lawful must therefore be answered by consulting the Prayer Book, not extraneous sources.  If a particular ceremony is not retained in the Prayer Book then it is not permitted, regardless of whether it is mediaeval or modern.

The Privy Council observed in Mackonochie that the Preface ‘divides all ceremonies into … 2 classes: those which are retained are specified … none are abolished specifically … but it is assumed that all are abolished which are not expressly retained’ (p.388).  This was the essential reason why it overruled Sir Robert.

The Preface emphasised the self-contained, comprehensive character of the Prayer Book as a manual of public worship.  Retained ceremonies ‘are so set forth [in the Book of Common Prayer] that every man may understand what they do mean, and to what use they do serve’.  This does not require the brains of an Archbishop!  The Archbishop’s ‘elaborate exposition’ of history and theology, though impressive in a way, was irrelevant, and perhaps even positively misleading.  Phillimore’s erudite judgment in Mackonochie may be open to similar criticism.

This analysis shows that the Prayer Book rule concerning ceremonies was stricter than its rule concerning ornaments.  In the blogpost ‘What did the Ornaments Rubric mean?’, filed below, it is argued that the Ornaments Rubric, on its wording, required the use of some ornaments, but did not positively forbid others.  The Preface ‘Of Ceremonies’, by contrast, required the use of some ceremonies, but also did positively forbid all others.