ecclesiasticallaw

Ecclesiastical law

Cathedral Governance: A Constitutional Monstrosity

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

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

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

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

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

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

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

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

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

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

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

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

In the middle ages, the chapter had two functions:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Baptism: Sin, Sacrament, Sacrilege and Salvation

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

Sin

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

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

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

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

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

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

Sacrament and Sacrilege

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

(1) it must not be repeated and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Salvation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Great Schism 1378-1417: Beyond Canon Law

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

Avignon

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

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

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

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

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

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

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

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

The Disputed Election

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

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

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

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

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

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

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

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

The Avignon Anti-Popes

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

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

The Schism

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

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

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

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

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

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

Conciliarism

There were 2 proposals for ending the Schism:

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

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

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

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

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

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

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

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

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

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

(1) the Council of Pisa (1409)

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

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

Pisa (1409)

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

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

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

Constance

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

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

The Council issued two momentous decrees

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

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

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

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

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

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

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

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

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

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

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

Basle (1431-1449)

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

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

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

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

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

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

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

Legacy

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

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

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

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

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

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

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

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

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

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

 

Commentaries referred to

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

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

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

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

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

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

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

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

The Burden of Legislative Reform

The Legislative Reform Measure 2017, aka The Enabling Measure

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

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

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

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

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

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

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

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

The Measure makes clear that burden-reducing may involve

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

[2] ‘creating a [new] body or office’

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

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

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

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

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

The Clerical Declaration of Assent

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

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

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

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

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

‘I, A.B …

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

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

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

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

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

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

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

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

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

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

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

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

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

What did the Ornaments Rubric Mean?

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

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

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

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

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

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

(1) Liddell v Westerton (1857) and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Unknown Bellringer: Bells and Organs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Dual Function of the Parochial Church Council: Representative and Trustee

‘My view is that the [parochial church council] does not represent the laity but is part of my staff’ (tactless incumbent in the case of St. Peter, Roydon (1969) 2 All England Reports 1233, quoted at p.1235)

Parochial Church Councils (‘PCCs’) are the successor of two earlier parochial institutions

(1) the Vestry and

(2) the Church Trustees,

rather as the Church Commissioners are the successor of two ‘parent’ institutions.  The comparison is admittedly inexact.  The Ecclesiastical Commissioners and Queen Anne’s Bounty were dissolved altogether by the Church Commissioners Measure 1947 (s.2).  Vestries and Church Trustees were not dissolved when PCCs were created, nor were all the functions of Vestries transferred to PCCs.  However, the PCC’s functions were inherited from the Vestry and the Church Trustees.

Like the Court of the Arches, the Vestry took its name from the place where it originally met.  It was a corporation at common law (Still and Bunn v Palfrey (1841) 163 English Reports 624 at p.626).  In Wilson v M’math (1819) 161 English Reports 1260 it was noted that ‘at the common law, every parishioner who paid to the church rates … and no other persons had a right to come to these [vestry] meetings’ (p.1261, quoting).  The ratepaying parishioners met with the incumbent or other parochial minister, the minister being ‘the first, and … integral, part of the parish’ (p.1263).  The Vestry taxed itself by voting the church rate.

In Lee and Parker v Chalcraft (1821) 161 English Reports 1439, it was further noted that ‘The assessment of the parishioners to a [church] rate … is the very object of their meeting in Vestry.  They assess their rate with their minister at their head to consider this question’ (p.1442).  The agreed church rate was then supposed to be confirmed by the Church court, though this legal formality was ‘unfortunately often omitted’.

Compulsory church rates were abolished in 1868.  This rendered the ecclesiastical Vestry somewhat superfluous.  Thenceforth the parishioners’ care of their church ceased to be a legal duty in any meaningful sense, and became instead a voluntary labour of love determined by religious piety rather than rateable value.

The Compulsory Church Rate Abolition Act 1868 therefore provided that ‘trustees may be appointed in any parish for the purpose of accepting … and of holding any contributions which may be given to them for ecclesiastical purposes in the parish’.  The Church Trustees were the incumbent and two parishioners.  One parishioner-trustee was chosen by the benefice patron, the other by the bishop.  The Church Trustees were also a corporation.

The PCC was first constituted on a legal, statutory basis by the Church of England Assembly (Powers) Act 1919 (schedule, para 2(1)(i), 12, 13, Appendix II).  The membership of the PCC is now determined by the Church Representation Rules scheduled to the Synodical Government Measure 1969.

The PCC’s functions, as distinct from its constitution and membership, were first provided in a separate Measure of 1921.  That Measure was consolidated with later pieces of legislation on PCC functions in the Parochial Church Councils (Powers) Measure 1956.  Thus the constitution and functions of PCCs are still regulated by different pieces of legislation.

The 1956 Measure expressly refers to the PCC as the ‘successor’ to the Vestry and the Church Trustees (s.4).  Between them, the Church Representation Rules and the 1956 Measure indicate that the PCC exercises two functions inherited from the two corporations from which it is descended:

(1) representative of the parish to the Church and

(2) trustee of the Church’s property in the parish.

Representative

The 1919 Act makes clear that the laity are ‘represented’ in the PCC. Like the Vestry the PCC must include the incumbent, also other clergy and lay ministers of the parish.  The PCC also includes lay representatives.  Lay representatives must be Anglican communicants.

The PCC is therefore a partly elective body (though only partly), and its membership is subject to a religious qualification (i.e Anglicans only).  The Vestry, by contrast, was not elected.  Its members represented themselves.  Membership of the Vestry was based on a property qualification, and so could include non-Anglicans.  (Some parishes used to have select vestries but, as their name implies, the membership of these bodies was selective, not elective.)  The Church Trustees, of course, were not elected by the parishioners at all, only by the bishop and the patron.

The right to elect PCC members is itself subject to a religious qualification.  Lay electors must be members of the Church of England (or prepared to declare themselves such) who either live in the parish or habitually worship in the parish church (Appendix 1, rule 1).  Their names are entered on the electoral roll of the parish.  Lay representatives must themselves be parish electors (rule 10).

parochial church meeting must be held annually, on or before 30th April, just after Easter.  All persons on the electoral roll may attend and participate in this meeting, but ‘no other lay person shall be so entitled’ (6.2).

This annual meeting, unlike the PCC, cannot claim any descent from the Vestry.  The PCC, like the Vestry, is a corporation (1956 Measure, s.3), but the annual meeting is not.  Like the electoral roll from which it is drawn, the annual meeting is a completely new creation of modern synodical government.  It provides the basis of lay representation in synodical government.  Its sole function is electoral.  Thus it elects representatives to the PCC and to the deanery synod.  It elects (or appoints) an independent examiner or auditor to scrutinise the parish finances.  (It also elects sidesmen to assist the churchwardens, though sidesmen have no involvement in synodical government.)

The annual meeting has certain rights to information, but the only apparent purpose of these rights is to inform its choice of representatives.  Thus Rule 9 provides for reports to be made on the proceedings of the PCC and the deanery synod during the past year and ‘the activities of the parish generally’, and on the fabric, goods and ornaments of the parish church (or churches).  The PCC accounts and financial statements must also be ‘furnished’ to the annual meeting (1956 Measure, s.8(1)).  As a general rule, electors are allowed to see the minutes of PCC meetings, but the PCC may deny them access to minutes that it deems confidential (Appendix 2, 12(f)).

Electors may ask questions and initiate discussion at the annual meeting.  Provision exists for special or extraordinary parochial meetings to be convened in addition to the annual meeting (rules 22(1) and 23(1)).  However, no parochial meeting can fetter or veto any decision of the PCC.  The PCC’s obligation is limited to ‘tak[ing] into consideration any expression of opinion’ by a parochial meeting (1956 Measure, s.2(3)).  If the electors are unhappy with their PCC’s decisions, all they can do is vote in new representatives at the next annual meeting.

The 1956 Measure formerly provided, at s.8(3), that the PCC accounts required the ‘approval’ of the annual meeting, but this toothless provision (if the meeting refused to approve the accounts, this still had no effect on the PCC) was repealed by the Miscellaneous Provisions Measure 2005.

If the PCC is the representative of the parishioners, the power of the Church authorities to intervene in parochial elections should be minimal.  PCC elections are not required to be confirmed by a Church authority.  Once elected, PCC members hold office automatically from the conclusion of the annual meeting (rule 16(1)).  However, there are appeals procedures for settling disputes over votes and elections, and over entries on the electoral roll (rules 44 and 43).

The bishop has a rarely used power under the Vacation of Benefices Measure 1977 (s.10(6)) to disqualify persons from serving on PCCs (rule 10).  Persons who have been disqualified under secular law from being charity trustees are likewise disqualified from the PCC.  Following the very recent Safeguarding and Clergy Discipline Measure 2016, the bishop will also be able to disqualify, or to suspend an already-elected PCC member, if the individual concerned is considered to present a ‘significant risk of harm’ to children or ‘vulnerable adults’.

The 1956 Measure provides that the incumbent and the PCC are required to ‘consult together on matters of general concern and importance to the parish’ (s.2).  This may do no more than make explicit what was implicit in the constitution of the Vestry.  However, the 1956 Measure also integrates the PCC into the modern synodical process.  Thus the PCC

(1) may give advice to the diocesan synod and the deanery synod on any matter referred to it, and also raise matters with those synods, and

(2) should also make known and put into effect any ‘provision’ made by those synods, but this is ‘without prejudice to the powers of the council on any particular matter’ (s.2).

The representative function of the PCC is exercised in many different contexts, e.g

(1) choice of liturgy, under the Worship and Doctrine Measure 1974, s.1(3)

(2) choice of Bible, under the Prayer Book (Versions of the Bible) Measure 1965, s.1(1)

(3) choice of ministerial vesture during divine service, under canon B8(6)

(4) choice of incumbent, under the Patronage (Benefices) Measure 1986

(5) pastoral reorganisation procedure, under the Mission and Pastoral Measure 2011 and

(6) the faculty procedure

The 1956 Measure also confirms the PCC’s ‘power to make representations to the bishop with regard to any matter affecting the welfare of the Church in the parish’ (s.7(5)), though such a power hardly requires statutory authority.

The PCC is not the only representative of the parish.  The lay representative to the deanery synod also represents the parish in synodical government.  Churchwardens continue to be elected by all resident parishioners, regardless of religion, as well as by those on the electoral roll (Churchwardens Measure 2001, s.5(1)), a wider electoral franchise.

Trustee

Being trustee for the Church in the parish is rather different from being representative of the parish.  As trustee, the PCC represents the Church authorities rather than the parishioners.

The objects of the PCC’s trust are stated in the 1956 Measure.  The inherited objects are stated at s.4(1)(ii)

‘(a) the financial affairs of the church including the collection and administration of all monies raised for church purposes …

(b) the care, maintenance, preservation and insurance of the fabric of the church and the goods and ornaments thereof

(c) the care and maintenance of any churchyard …’.

S.4(1)(ii) suggests that these objects were formerly the responsibility of the churchwardens rather than the vestry.  Hence the PCC is the successor of the churchwardens, as well as the Vestry and the Church Trustees.  However, the churchwardens exercised their responsibility as agents or executors of the parish.  The old legal duty to maintain the church and churchyard was imposed on all the parishioners.  The work involved was indeed organised by the churchwardens, but it was paid for by the parish, which meant the Vestry.  The churchwardens had no financial liability to pay for the work.  They were required to collect the church rate and then use the funds to pay for the church and churchyard, but it was the Vestry which voted and paid the rate in the first place.

As well as this inherited trust, the 1956 Measure created a new missionary trust for the PCC, stated at s.2(2)(a)

‘co-operation with the incumbent in promoting in the parish the whole mission of the Church, pastoral, evangelistic, social and ecumenical’.

The original version of s.2 provided for the PCC to ‘co-operate with the minister in the initiation, conduct and development of Church work within the parish and outside’.

In St. Peter, Roydon, cited above, the consistory court held that this duty of cooperation meant that the PCC ‘must pay proper regard to the wishes or suggestions of the minister … but, having done that, they must be free to differ from him if, in their view, the honest discharge of the particular duty requires them to do so’ (p.1235).

The incumbent and the PCC jointly determine how the money raised in church collections is to be spent (s.7(4)).  If they cannot agree, the bishop decides (s.9(3)).

To perform its trust, in relation to the church and churchyard and to missionary work, the PCC has a broad power ‘to frame an annual budget of moneys required for the maintenance of the work of the Church in the parish and otherwise, and to take such steps as they think necessary for the raising, collecting and allocating of such moneys’ (s.7(i)).  It may also ‘levy and collect a voluntary church rate’ (s.7(ii)).

The PCC can acquire property, whether real or personal, ‘for any ecclesiastical purpose affecting the parish’ (s.5(1)).  This resembles the power conferred on the Church Trustees by the 1868 Act.  However, consistent with its modern missionary function, the PCC can also acquire property for educational schemes, ‘facilities for the spiritual moral and physical training of persons residing in or near the parish’.

The PCC’s trustee function is much more closely controlled by the Church than its representative function.  All dealings with the church and churchyard are, of course, subject to the faculty jurisdiction exercised by the ever-vigilant ecclesiastical courts.  Any acquisition of property requires the consent of the diocesan authority (s.6).  Although the PCC is a body corporate (s.3), it is not allowed to own real or investment property.  It may acquire such property, but the property must then vest in the diocesan authority (s.6).  The PCC is managing trustee of the property, but any dealings with it will require diocesan consent, though a recent change in the law suggests that minor dealings may not require such consent (Ecclesiastical Property Measure 2015, s.8).  The PCC’s exercise of powers concerning educational schemes also requires the consent of the diocesan authority (1956 Measure, s.5(5)).  The 1956 Measure suggests that the PCC can only own deposit accounts and short leases (i.e periodic tenancies).

PCC accounts must be ‘laid before’ the diocesan authority annually (s.8(4)).  The bishop or archdeacon, or any person authorised by them, have the right to see all PCC minutes, whether confidential or not (Appendix 2, 12(e)).  However, the PCC’s annual budget, unlike the church rate, does not require to be confirmed or approved by the diocesan authority.

Just as they retain a representative function independent of the PCC, so the churchwardens retain certain distinct responsibilities for the care of church and churchyard.  The 1956 Measure also preserves the churchwardens’ supposed property in the goods and ornaments of the Church (s.4(2)).  The administration of ecclesiastical charitable trusts was not transferred from the Vestry to the PCC (1956 Measure, s.4(1)(i)).  Such trusts are now regulated by the Incumbents and Churchwardens (Trusts) Measure 1964.

The Code of Canon Law 1983 suggests that the trusteeship exercised by the PCC in the Church of England may be exercised by two separate committees in the Catholic Church.  Every Catholic parish must have a parochial finance committee (canon 537).  The local bishop may also establish a parochial pastoral council, under the chairmanship of the incumbent (the ‘pastor’), through which lay parishioners may ‘give their help in fostering pastoral action’ (canon 536).

The constitutions of both committees are determined by local law, so the bishop could provide that the same committee should serve both as finance committee and as pastoral council.  He could also permit parochial elections on the Anglican model.  However, the 1983 Code is clear that lay parishioners enjoy only a consultative (i.e non-binding) vote in the pastoral council.  Also parish committees can have no representative function in the Catholic Church.  The incumbent alone represents the parish (canon 532).

1989

Ralf Dahrendorf, Reflections on the Revolution in Europe (London, 1990)

This post, an appreciation of the work cited above, admittedly falls outside the stated scope of this blog, but it refers to the important and topical questions of the future relationship of the United Kingdom and Europe, and the relationship of the Christian religion with both.

Lord Dahrendorf KBE, FBA (1929-2009) was born in Germany, the son of a social democrat, and spent part of his youth in a Nazi concentration camp.  As his titles indicate, he later took British nationality, and had an illustrious career as a European Commissioner and Director of the LSE.

This book, whose title alludes to Edmund Burke’s famous work, discusses the future of Europe after the momentous events of 1989, the destruction of the Berlin wall and of the communist regimes that lay behind it.

Communism

Marxism was based on a providential concept of history.  It taught that history had chosen the proletariat to overthrow the capitalist mode of production and create a new society.  From the start, however, Marxists were not content to rely on this impersonal, and supposedly inevitable, historical process, but engaged in political activism to to advance their new society.

Marxist theory actually had little support from history.  It confused the French revolution and the industrial revolution, which did not happen in the same place or at the same time.  There was no historical evidence for supposing that the proletariat represented a new force of production.

However, Marxist theory was plausible when applied to 19th century Russia.  Russia was economically backward, and had no powerful, wealth-creating middle class as Europe and America had.  The Party therefore seemed to be the only vehicle of economic progress.  Hence Marxism makes more sense in a third-world country (which tsarist Russia was) than in an advanced society.  Communism does not survive economic advancement.

Marxism is radically different from social democracy.  While Marxists sought to overthrow the state, social democrats wished to strengthen it.

The USSR (Union of Soviet Socialist Republics, the old Soviet Union) went through 2 phases:

(1) Stalinism, a state of permanent revolution backed by terror, then

(2) Brezhnevism, an authoritarian state in which a bureaucratic elite exploited the people.  There was a relative absence of terror, and official corruption allowed a black market to operate.  The black market provided some relief from poverty.

It is wrong to be nostalgic for the ‘high culture’ that supposedly flourished under communism.  High culture was merely a substitute for other values (e.g travel, politics, religion) which communism denied to people.

However, post-communist society will inevitably be a culture shock.  The correct response to the culture shock is to hold onto the sound cultural values of the past, while not giving in to nostalgia: ‘let the huge wave of [unfamiliar and unattractive change] roll over you, and make sure that you come up again once it has passed’ (pp.107-8).

The events of 1989 effected a reunification of language, as they removed any ideological divide.  After 1989, politicians, bureaucrats and intellectuals from across Europe, both East and West, ‘all used the same words and concepts, and spoke of the same things’ (p.11).  However, unlike the French and American Revolutions in the 18th century, 1989 did not produce any new ideas.

Freedom

The intellectual void created by 1989 must not be filled by a naïve democratic idealism.  There is no such thing as ‘government by the people’ (p.9).  This is a dangerous illusion, as it merely gives opportunity to extremists.

Nor does the future lie in free market fundamentalism.  It is no coincidence that many theorists of the free market are former Marxists.  Free market fundamentalism cruelly divides human beings into winners and losers.  Like communism, it raises false hopes and expectations that it cannot fulfil.  It takes no account of the manifold inequalities between human beings.  It complacently allows the strong to exploit the weak.  This is not only wrong in itself, it also risks political instability which gives totalitarianism its opportunity.

Robespierre held that a constitution gives freedom to citizens, whereas a tyrant only gives them bread (p.76).  This view is untenable.  Man does not live by bread alone, but nor can he live only by freedom or ‘values’.  However, a constitution which promises a right to work which it cannot deliver will become discredited.  Indeed a constitution ought to guarantee a right not to work, as a protection against forced labour.

Economic prosperity is a double-edged sword.  It may create a ‘feel-good factor’ that encourages acceptance of the status quo, but it may also breed discontent and radicalism.  A democracy that rests only on economic prosperity, like the old West Germany, is precarious.  Postwar British democracy, by contrast, remained strong despite decades of economic decline.

Political change is quicker, and in a way easier, than economic change: ‘economic changes cannot be introduced in a matter of months … economic reforms will without fail lead through a valley of tears.  Things are bound to get worse before they get better’ (p.77).

The difficulty, therefore, is that liberalising reform will be rejected if it is seen to cause economic hardship.  The best solution to this problem is to mitigate the inevitable hardship caused by economic freedom with a welfare state.

The author argues that all systems, including the free market system, are tyrannies.  Any form of utopianism, however well-intentioned, must be rejected.  Post-communist governance must therefore be a-systematic.  It must create an open society which is capable of offering ‘infinite possible futures, some of which compete with each other’ (p.37).

The Open Society requires 3 things:

(1) a constitution

(2) normal politics

(3) social foundations

Constitution-building is ‘the hour of the lawyers’ (p.79).  To be properly effective, a constitution requires an independent judiciary to enforce it.  The difficulty is that the judiciary is inherently the weakest of the 3 ‘powers’ of government.  It depends on the support of the executive for the practical efficacy of its judgements (p.81).  However, even a paper constitution, without an independent judiciary, has some small value.  The most tyrannical regime cannot deny what is written in its constitution.  Dissidents, and the international community, can still appeal to it.

A constitution should procure as much democracy as possible, a wide distribution of power (consistent with the ability of the government to govern), in order to minimise the risk of subversion by extremists.

Normal politics are ‘the hour of the politicians’.  The task of normal politics is to resolve, as far as possible, the inevitable tension between politics and economics.  Political reform is never popular if it causes economic hardship.  Normal politics is concerned to negotiate this tension.  Postwar West Germany provides the model for this.

Social foundations are ‘the hour of the citizen’.  These are all-important, as they give long-term stability to the Open Society, in bad times as well as in good (p.93).  They comprise ‘a multiplicity of groups and organisations and associations’ which exist outside the state, and hence protect society against the excesses of state power (p.95).  Social foundations include political parties, churches, universities, charities and small businesses.

The difficulty is that social foundations cannot suddenly be invented.  They tend to evolve spontaneously over time.  If they are artificially created and organised by the state, that will defeat their political purpose which is to be independent of the state.  Nevertheless, efforts must be made, somehow, to create social organisations outside the state.

On this view, the Christian religion or Church is both (1) a contributory to, and (2) a beneficiary of, the Open Society.  It contributes by providing one of the social foundations that gives the Open Society stability and legitimacy.  It also benefits from the religious freedom that the Open Society guarantees.

Europe

The author professes his hope for ‘a constitution of a united Europe one day’ (p.127), and for European monetary union (p.132).  Yet the Open Society is not easy to reconcile with a European superstate.  Both the democratic institutions and the social foundations on which the Open Society is based are likely to be of local or national origin and character.

The author’s point is that the Open Society must precede the European superstate.  Post-communist states must settle their constitutions, politics and social foundations first.  Only when these are sufficiently stable and mature can they be integrated into the European superstate.  Nevertheless the difficulty remains that a European superstate which lacks a democratic mandate and a basis in local communities risks causing alienation of the kind that facilitated the rise of 20th century totalitarian regimes in the first place.

This faith in internationalism and supranational institutions is rooted in a fear of totalitarianism.  Before communism there was fascism.  The experience of fascism suggests that nation-states cannot be trusted with the human rights of minorities within their borders.  The author quotes a survivor of the holocaust: ‘how fragile these human rights become when they no longer correspond with citizenship rights’ (p.125).  This attitude, though wholly understandable in a European context, is radically different from the Whig-inspired English trust in parliamentary sovereignty as the surest guarantee of liberty.

The author wrote a quarter of a century ago, a long time now.  What has happened to Europe since then?  Utopian democratic idealism seems to have been avoided successfully.  Economic liberalism, the market economy, has been universally accepted.  A former European Commissioner (also a former Marxist) is credited with the observation that ‘We are all Thatcherites now’.  The free market’s disregard of inequalities between human beings has been addressed not only by a social-democratic welfare state, but also by an ideology of so-called ‘equality’ reminiscent of that preached by communism.  The free market and the ideology of equality are both regulated, and the tension between them arbitrated, by supranational European institutions.

Christianity has been excluded from this post-1989 compromise.  The downfall of communism did not lead to a revival of Christianity, despite the efforts of the then Pope, St John Paul II (himself a native of a communist country).  His Exhortation Ecclesia in Europa (2003) presents a gloomy account of European apostasy, and there is little sign that matters have improved in the 12 or 13 years since he wrote it.  Post-communist Europe is also post-Christian Europe.

Thus the Pope’s appeal to include a reference to ‘the Christian heritage of Europe’ in the European Constitution was rejected (cf para 114).  (The British Constitution, by contrast, does make reference to its Christian heritage.) There has indeed been a reunification of language between the secular elites of Europe, but they all now speak a different language from that of traditional Christianity.  The Pope acknowledged (para 11) that the position of East European Churches and Christians has become much easier since 1989.  The position of West European Christians has become more difficult.

Communism preached the equality of all human beings, but it defined human beings by their relationship to the Party.  This produced tyranny, a flagrant denial of the most basic human rights.  Post-1989 equality does not refer to the Party, of course, and it is undeniably preferable to the evil communist version that preceded it.  However, post-1989 equality also rejects the unique truth of Christianity, holding that all religions are equally valid (and hence equally invalid).  In particular, it refuses to recognise ‘the notable gap between European culture, with its profound Christian roots, and Muslim thought’ (cf para 57).

It also rejects the Christian understanding of gender and marriage.  (The environmental (green) movement takes ‘equality’ a step further, by suggesting an equality between human beings and other created things (animals, plant-life, minerals).  It implies that there is nothing special about human beings.)  Pope John Paul’s successor warned that post-1989 equality has placed Europe ‘on the verge of a dissolution of our concept of man’ (Joseph Ratzinger, ‘Europe’s Identity’, Values in a Time of Upheaval 2005-6, p.148).

The relationship between religious faith and political constitutions is discussed in the post ‘Constitutions without Faith: the Good, the Bad and the Weak’, which is filed below.

The Proposed Enabling Measure: A Complex Process of Simplification

‘A New Enabling Measure’ (General Synod Paper 2018, January 2016)

This paper indicates four major proposals for the reform of ecclesiastical legislation.  Three proposals concern existing legislation, as follows:

(1) the consolidation of various pieces of legislation on the same subject into one comprehensive, or ‘consolidated’, Measure. Four consolidation Measures are proposed affecting (1) the Church Representation Rules (2) pensions (3) ecclesiastical jurisdiction and (4) Church property (para 49).

(2) the repeal of obsolete or redundant legislation, by way of a Repeals Measure.  The redundant legislation has been identified as such by the Legal Office (para 50).

(3) the simplification of legislation that is considered ‘over-prescriptive’, by means of special orders approved by the General Synod.  This programme of legislative simplification will be effected by the Enabling Measure referred to in the paper’s title (para 51).

The final proposal concerns future legislation:

(4)  the most important ecclesiastical legislation will continue to be in the form of Measures made under the Church of England (Assembly) Powers Act 1919.  However, Measures are likely to be much shorter in future, and concerned only with ‘important matters of principle and policy’ (para 52).  Matters of detail arising from new Measures will be dealt with by secondary legislation, made under the authority of Measures.  This secondary legislation can then be made or amended by the Church without engaging the 1919 procedure.

This is all quite reasonable.  However, the proposed Enabling Measure (3), as presently described, is very confused.

The cause of the confusion is that the proposed Measure does not specifically identify the legislation that is proposed for simplification.  No explanation is given for this non-specific approach, nor is it easy to think of one.  The Enabling Measure, like the Consolidation and Repeals Measures, is concerned with legislation that has already been made, not with legislation that may be made in the future.  Future legislation will be dealt with by proposal (4).  (Para 54 confirms this.)

It should therefore be possible to identify and schedule the specific legislation to the Enabling Measure.  If it is possible to identify redundant legislation (2), why is it not possible to identify over-prescriptive legislation?

Identifying over-prescriptive legislation would not prejudice the General Synod’s position.  If the Measure identifies a particular piece of legislation as eligible for simplification the General Synod would still decide the precise terms of the simplification order after the Measure has been approved.  It could also decide that a piece of legislation may not be appropriate for simplification after all, and refuse to make an order in respect of it.

Instead of identifying the legislation to which it will apply, the Enabling Measure merely identifies legislation to which it will not apply.  Seven well known ecclesiastical statutes (only seven) are expressly excluded, including the 1919 Act and the Worship and Doctrine Measure 1974 (para 26).  The Enabling Measure itself will also be immune from simplification (though sorely in need of it!).  A simplification order may not alter the purposes for which the income of the Church Commissioners’ general fund is applicable (para 29).

There are other, vaguer limitations, described as ‘pre-conditions’.  A simplification order should inter alia be ‘proportionate’.  It should strike a fair balance between ‘the public interest, the interests of the Church of England as a whole and the interests of any person adversely affected’.  It should not remove any ‘necessary protection’, or prevent the exercise of any right or freedom ‘which [its possessor] mght reasonably expect to continue to exercise’.  It should not be of ‘constitutional significance’ (para 22), or alter the relationship between Church and state (para 23).

The Enabling Measure prescribes an onerous procedure for making orders in respect of the legislation that it fails to specify.  Given that the whole purpose of the Measure is simplification, the complex order-making procedure reads amusingly like something out of Yes Minister.  It fully vindicates the Ecclesiastical Law Society’s warning that ‘The problem of ‘too much’ law is to be addressed by creating more’ (Response, July 2015).

Thus the important business of ‘the removal or reduction of burdens’ (para 17), defined as ‘financial cost … administrative inconvenience … an obstacle to efficiency’ is to be supervised by … a brand new committee!  The Legislative Reform Scrutiny Committee will be a committee of the General Synod, though it will include members of the Archbishops’ Council (para 34).  Also ‘more detailed provision as to the committee’s membership would be contained in the standing orders of the General Synod’.

The Archbishops’ Council will prepare draft simplification orders and submit them to the Legislative Reform Scrutiny Committee.  Before it does this, however, the Council must invite representations on a proposed order from members of the General Synod and ‘other persons and bodies who might reasonably be considered to have an interest’ (para 32).

When the draft order is at last submitted to the Legislative Reform Scrutiny Committee, that committee will prepare a report on it to the General Synod (para 36).  Standing orders will ‘specify any matters which the committee [is] required to consider and report on’, but presumably the report is needed for assurance that the draft order satisfies the various constitutional criteria stated in the Measure and referred to above.

The new committee will therefore resemble the Ecclesiastical Committee of Parliament.  Its functions of scrutinising and reporting on simplification orders are analagous to those of the Ecclesiastical Committee concerning Measures.  Like the Ecclesiastical Committee, the Legislative Reform Scrutiny Committee will be chaired by a senior judge (though an ecclesiastical one rather than a secular one) (para 34).  However, unlike the Ecclesiastical Committee, the new committee will be able to amend the legislation that it considers (para 37).

The 1919 Act requires the Ecclesiastical Committee to consider a Measure and make a report to Parliament on ‘the nature and legal effect of the Measure and its [the Committee’s] views as to the expediency thereof, especially with relation to the constitutional rights of all … subjects’ (s.3(3)).  Yet it will hardly be able to do this effectively in relation to the Enabling Measure, because the Measure declines to identify the legislation to which it will apply.  The Legislative Reform Scrutiny Committee will therefore exercise the Ecclesiastical Committee’s function instead.  Thus the constitutional function of the Ecclesiastical Committee is frustrated, and two committees are required to do the work of one.  Sir Humphrey would be proud!

If, however, the Enabling Measure did specify the legislation to which it applies there would be no need of a new scrutiny committee, because the Ecclesiastical Committee would be able to scrutinise effectively.  As well as being inconsistent with the Ecclesiastical Committee’s function, the proposed order-making procedure is arguably inconsistent with the legislative function of the General Synod ‘to consider matters concerning the Church of England’ (Article 6(a), Synodical Government Measure 1969, sch2), and with the function of the Archbishops’ Council ‘to co-ordinate, promote, aid and further the work and mission of the Church of England’ (National Institutions Measure 1998, s.1(1)).  Striking balances between the public interest and the Church’s interest, policing Church-state relations and determining ‘constitutional significance’ (paras 22-23) are not pertinent to either of these ecclesiastical institutions.

The Church of England should be free to simplify its own administration, provided that simplification will not materially affect the rights, interests and functions of third parties, i.e private individuals, the general public and secular bodies, both private and public.  Any simplification that affects only the rights, interests and functions of ecclesiastical officials and institutions (clergy, parochial church councils, diocesan committees and officers) should be a matter for the Church itself to decide.

We therefore respectfully submit to Sir Humphrey that the simplification of ecclesiastical legislation may well be a sensible reform in principle, but that the proposed Measure requires amendment as follows:

(1) ecclesiastical legislation considered eligible for simplification should be specifically identified and scheduled to the Measure and

(2) the Measure should provide that simplification orders may not materially affect the rights, interests and functions of third parties.

The Ecclesiastical Committee will then be able to scrutinise the Measure effectively, and the General Synod will be able to make the simplification orders without the need for any new committee or special consultation procedures and reports.  If a particular simplification order were to impinge upon third parties in breach of the Measure then that order could be ‘quashed’ by the High Court in judicial review proceedings.

The proposed Measure suffers from two further difficulties:

(1) its title.  The word ‘enabling’ evokes the 1919 Act, which is widely known as the ‘Enabling Act’.  It implies constitutional reform and ecclesiastical autonomy.  Yet the Measure serves only the modest aim of simplifying ecclesiastical administration.  As mentioned, it is not supposed to affect the relationship of Church and state.

(2) a continuing fixation with the Legislative and Regulatory Reform Act 2006.  The Ecclesiastical Law Society’s sartorial criticism of the proposed Measure as an ”off the peg’ solution … borrow[ed] from [the 2006 Act]’ (Response, para 3.2, July 2015) has been answered with an assurance that the Measure will be ‘specifically tailored to the particular context of the Church’ (para 16).  However, it is argued that the 2006 Act cannot be applied to the Church of England, even in a ‘tailored’ form, for reasons discussed in the post ‘Reformatio Legum Ecclesiasticarum: Of Martyrs and Mice’, which is filed below.

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