ecclesiasticallaw

Ecclesiastical law

Apostolicae Curae 1896: A Vicar is not a Catholic Priest

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

Pope Leo XIII

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

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

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

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

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

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

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

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

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

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

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

Apostolicae Curae

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

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

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

The Pope gave 3 reasons for this withering conclusion:

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

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

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

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

Saepius Officio

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

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

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

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

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

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

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

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

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

A Century On

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

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

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

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

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

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

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

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

Papal Teaching Authority

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

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

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

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

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

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

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

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

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

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

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

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

To answer this question, it is necessary to distinguish between

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

(2) its function (which is not).

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

Anglican Ministry: Catholic Structure, Protestant Function

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Priestly Function and the Formularies

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Church Attendance

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

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

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

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

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

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

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

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

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

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

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

Divine Service

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

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

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

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

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

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

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

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

(2) modern services.

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

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

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

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

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

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

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

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

(1) surplice or alb and

(2) scarf or stole.

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) kneeling and

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

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

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

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

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

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

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

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

Word and Sacrament

Divine Service is centred around

(1) the Bible and

(2) the Holy Communion, or Eucharist.

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

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

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

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

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

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

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

The Sunday school curriculum must be based on

(a) the Bible

(b) the Book of Common Prayer and

(c) ‘especially’ the Church Catechism.

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

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

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

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

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

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

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

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

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

Holy Communion comprises 2 distinct rites

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

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

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

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

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

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

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

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

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

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

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

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

The Constitution of Marriage: Consensus-Copula

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

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

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

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

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

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

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

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

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

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

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

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).