ecclesiasticallaw

Ecclesiastical law

Month: March, 2012

The Diocese in Europe Measure 1980

The 1980 Measure did not create the diocese in Europe.  The recital to the Measure refers to the Bishop of London’s ‘ecclesiastical jurisdiction’ over Church of England clergy (not laity) officiating in northern and central Europe, and the Bishop of Gibraltar’s similar jurisdiction over other areas of Europe.

The Bishop of London surrendered his jurisdiction to the Archbishop of Canterbury, who in the exercise of his metropolitical jurisdiction formed the diocese in Europe from the areas formerly under the jurisdiction of the Bishops of London and Gibraltar.

The diocese of Gibraltar was created by letters patent of 1842, issued under the royal prerogative (Phillimore Ecclesiastical Law 2nd ed 1895, pp.1766-8).  The letters patent provided that the diocese and its Bishop were subject to the metropolitical jurisdiction of the Archbishop of Canterbury. 

The Bishop of London’s overseas jurisdiction dates from an order in council of King Charles I, also made under the royal prerogative.  The Bishop of London is subject to the metropolitical jurisdiction of the Archbishop of Canterbury by common law.

This narrative suggests that the surrender of the Bishop of London’s European  jurisdiction and the exercise of the Archbishop’s metropolitical jurisdiction in creating the new diocese both required royal assent, even if this was only implied rather than given expressly,  since both jurisdictions were conferred under the royal prerogative.

The 1980 Measure is very short and limited in scope.  It provides only for

(1)   representation of clergy and laity from the diocese in the General Synod and Convocation of Canterbury (ss.1-3)

(2)   the provision of an official residence, stipend and expenses for the Bishop and any suffragan

(3)   application of the Church of England pension scheme to the diocese and

(4)   clergy from the diocese to be treated as Church of England clergy, not as overseas clergy, for the purposes of the Overseas and Other Clergy Measure 1967.

Thus the Measure makes no provision for the administration of worship and doctrine in the diocese (neither does the Worship and Doctrine Measure 1974), nor for the appointment of the Bishop or any other clergy, nor for pastoral reorganisation within the diocese.  Absent legislation, such matters can be regulated only within the limits of the common law and prerogative powers.

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The Enforcement of Chancel Repair

The Church of England’s Legal Advisory Commission has argued that the power conferred on the parochial church council (PCC) by the Chancel Repairs Act 1932, to enforce a lay rector’s liability to repair the chancel, ‘represents an asset of the PCC’, which the PCC is required to ‘protect and preserve’ (Opinion, October 2007).

The word ‘asset’ may suggest that the PCC’s ability to enforce the rectorial liability is a species of property, similar to a right of way or other easement over land.  It constitutes a ‘dominant’ right over the lay rector’s ‘servient’ property. 

However, the PCC has no legal estate in the chancel, nor in any other part of the parish church.  Indeed its power to acquire an interest in any land is limited (PCC (Powers) Measure 1956, ss.5 and 6).  It is therefore not in the same position as the owner of an easement.

It is not very meaningful to speak of the chancel repair liability as an asset of the PCC, when the PCC has no legal estate in the chancel.  It is true that the case of St. Edmundsbury v Clark (No.2) 3 All England Reports 902 held that the PCC has a right of way to the church and churchyard.  The PCC must also have a right of possession or occupation (as distinct from ownership) of the church, including the chancel, sufficient to discharge its legal responsibilities thereto.

However, as St. Edmundsbury makes clear, these rights are limited to the access necessary to the discharge of the PCC’s own legal responsibilities towards the church.  The 1932 Act, by contrast, is concerned with the discharge of the lay rector’s responsibility to the church, not the PCC’s.

If the lay rector’s liability can be said to constitute an ‘asset’, that asset belongs to the parish, or even to the Church of England generally, but not to the PCC.  Parish churches exist ‘for the purposes of religion and the worship of God’ (Griffin v Dighton and Davies (1864) 122 English Reports 767 at 771).  The lay rector’s liability exists to serve these purposes, and the Church is responsible for administering them.

It is true, however, that parish and Church have no legal personality, and that the lay rector’s liability can only be enforced by the PCC, or by the churchwardens if there is no PCC (1932 Act, s.4(1)).  Thus, in exercising its rights under the 1932 Act, the PCC acts on behalf of the parish/Church.  It acts as their agent or representative, but not as trustee of any property.

So what is the PCC’s duty towards the parish/Church?  The 1932 Act does not impose any obligation on the PCC.  It provides only that the PCC ‘may’ act to enforce the rectorial liability.  There is nothing in the wording of the Act to suggest that the PCC must do so.

PCCs are now constituted under the Parochial Church Councils (Powers) Measure 1956.  S.4 of the 1956 Measure provides that, subject to certain exceptions, the PCC has ‘the like powers, duties and liabilities’ that formerly belonged to the vestry and the churchwardens.

Before the 1932 Act, legal proceedings against a lay rector could be taken only in the ecclesiastical court.  The churchwardens, as officers of the ecclesiastical court and of the parish, might bring the proceedings.  Such proceedings were of limited effectiveness, because the ecclesiastical court could only impose spiritual sanctions against a defaulting lay rector.  It could ‘admonish’ the lay rector to do his duty, and excommunicate him for neglecting it.  However, it lacked the powers of enforcement available to the secular civil court (bailiffs etc).

Thus the purpose of the 1932 Act was to enable the lay rector’s liability to be enforced in the secular civil court.  However, though it provided for enforcement in the secular court, the 1932 Act also abolished proceedings in the ecclesiastical court for chancel repair (s.1).

Annual visitations are not affected by this latter provision.  A complaint can still be laid against a defaulting lay rector before the visiting archdeacon.  Such a complaint might draw attention to the existence of the rectorial liability, but could not per se lead to proceedings under the 1932 Act.

Moreover, one of the exceptions to the transfer of responsibilities in s.4 of the 1956 Measure relates to the ‘powers, duties and liabilities with respect to visitations’.  The churchwardens continue to act in visitations, not the PCC.  In consequence, any ‘duty’ to denounce a defaulting lay rector in a visitation belongs to the churchwardens, not to the PCC.

Thus any duty to take steps to enforce the rectorial liability only ever existed in ecclesiastical law, and belonged only to the churchwardens.  That duty (if it existed) was abolished by the 1932 Act.  As mentioned, the 1932 Act does not replace the churchwardens’ duty with a new duty on the PCC to enforce the rectorial liability.

S.7 of the 1956 Measure confers certain ‘miscellaneous powers’ on PCCs, in addition to the responsibilities inherited from the churchwardens and the vestry.  This includes ‘Power to frame an annual budget of moneys required for … the work of the Church in the parish, and to take such steps as they think necessary for the raising collecting and allocating of such moneys’ (s.7(1)).

This wording does not impose any duty to take action under the 1932 Act.  It refers to the usual fundraising activities undertaken by any charitable organisation.  Even if it could be said to include enforcement of the lay rector’s liability, the wording makes clear that this is a matter for the PCC’s discretion.  It does not impose a duty or liability, any more than does the 1932 Act.

There is case law which suggests that if a PCC incurs a liability without proper authority, the individual PCC members involved will be personally responsible for this (see for example Fell v Official Trustee (1898) 2 Chancery 44).  The courts will not assist churchwardens or PCC members who, over-anxious to fulfill their duties to take care of the church, exceed their authority.  However, there is a considerable difference between incurring a liability without authority and neglecting to take steps to enforce the liability of a third party.

Nor can it be argued that the secular court has some a priori power to require the PCC to take action under the 1932 Act.  Not only does the wording of the 1932 Act contradict this argument, the 1932 Act  itself would hardly have been necessary if such a power existed.  The 1932 Act was passed precisely because the secular court had no power to enforce ecclesiastical liabilities towards the parish church.

It must therefore be concluded that the PCC has no ‘duty’ cognisable in any secular court to exercise its power under the 1932 Act. 

This does not mean that nothing can be done about a PCC which neglects to exercise this power.  Just as the ecclesiastical courts used to impose sanctions against defaulting ecclesiastical officeholders, so modern ecclesiastical law provides sanctions, albeit of a rather different character.

Thus the Synodical Government Measure 1969 enables parishioners (or rather, the parish electors) to vote in new PCC members.  If the parishioners decline to take action, and the church falls into disrepair as a result, the Church authorities have wide powers under the pastoral legislation (now contained in the Mission and Pastoral Measure 2011) to dissolve or restructure the parish, and to close the church building.  As Chancellor Newsom observed, ‘the primary remedy for a badly neglected church is to make it redundant, since its parishioners have shown by their neglect that they have not cared to look after it’ (The Faculty Jurisdiction, 2nd edition, Sweet & Maxwell, London, 1993, p.98).

Ecclesiastical Discipline: the Williams case

R v Provincial Court of the Church in Wales ex parte Williams (1998) EWHC Admin 998

The High Court rejected the Rev Mr Williams’ application to ‘quash’ a decision of the Church’s Provincial Court finding him guilty of misconduct.

Mr Williams’ principal complaint was that the Church in Wales Court had found him guilty according to the civil standard of proof, even though it was agreed that the criminal standard of proof applied in English ecclesiastical law.  (This was before the Clergy Discipline Measure 2003.)

The High Court replied that the constitution of the Church in Wales entitled the Provincial Court to apply the civil standard of proof.  It noted two provisions of the constitution:

(1)  a provision which expressly disapplied the Clergy Discipline Act 1892 to the Church in Wales after Disestablishment.  The High Court held that this Act ‘forms the basis of the principle that the criminal standard …applies’ (para 21)

(2) a provision that Church in Wales courts are not bound by decisions of the English courts in matters of ‘discipline’.

However, the Clergy Discipline Act (now repealed) did not make express provision for the standard of proof to be applied to disciplinary proceedings against clergy.  It merely assumed the pre-existing, common law standard of proof.  Therefore it does not form the ‘basis’ for the criminal standard in ecclesiastical law.  It did not impose the criminal standard, it merely applied that standard to the proceedings that it regulated.

There are also difficulties with point (2).  The word ‘discipline’ admits of different meanings.  It is an old word for ‘governance’.  In the Church of Scotland, ‘discipline’ apparently refers to the entire constitutional structure of the Church (The Constitution and Laws of the Church of Scotland, ed James L Weatherhead, Edinburgh, 1997, p.62).

However, the use of the word in the constitution of the Church in Wales must be understood according to its context.  The relevant section of the constitution states that

‘The [English] ecclesiastical law [pre-Disestablishment] … with the exception of [certain statutes, including the Clergy Discipline Act 1892] shall be binding on the members (including any body of members) of the Church in Wales and shall be applied to the determination of any question or dispute between them … insofar as it does not conflict with anything contained in the constitution …’ (now found in Chapter 1, s.5).

The effect of this provision is that English ecclesiastical law, with the exception of the named statutes, is incorporated into the constitution, subject to any contrary provision in the constitution.

Then comes the proviso:

‘the Courts of the Church in Wales shall not be bound by any decision of the English courts in relation to matters of faith, discipline or ceremonial’.

Thus the proviso must be understood in the context of the general rule that immediately precedes it.  The general rule is that English ecclesiastical law is incorporated into the constitution, and is to be applied to any question or dispute between Church members and authorities.

If too broad a meaning is given to the proviso this will have the effect of overriding or ignoring the general rule.  If ‘discipline’ is understood in the Scottish sense, to refer to any constitutional matter whatsoever, English ecclesiastical law would not have the binding force accorded to it by the general rule, since any question or dispute is likely to involve some issue of governance.  Too broad a meaning would also have the absurd consequence that ecclesiastical law should bind all members and governing authorities of the Church in Wales, but not its courts.

The general rule is concerned with ecclesiastical law, the proviso with ecclesiastical courts.  Their wording indicates that ‘discipline’ refers to something which, according to ecclesiastical law, is the subject of judicial decision.

Moreover, two of the statutes exempted from incorporation into the constitution were the Church Discipline Act 1840 and the aforementioned Clergy Discipline Act 1892.  The ‘discipline’ that was the subject of these Acts was the professional discipline of clergy.  This indicates that the word ‘discipline’ in the proviso refers to clergy discipline.

The phrase ‘faith, discipline or ceremonial’ suggests that the proviso was primarily intended to liberate public worship from unpopular and impractical judicial decisions taken in the 19th century to forbid ‘ritualism’, certain liturgical practices which had, nevertheless, become widespread by the early 20th century.

(The phrase ‘English courts’ in the proviso may be somewhat careless, since the most important decisions were taken by the Privy Council, which is not strictly a court.)

‘Discipline’ therefore refers to the personal or official conduct of the clergy.  The effect of the proviso is that Church in Wales courts are not bound by what the English courts consider to be misconduct or indiscipline by clergy.  Likewise, in faculty case, the Church in Wales courts may permit an ornament which English courts have held to be illegal.  The intention was probably to protect ‘ritualist’ clergy and discourage petty liturgical disputes.

However, the proviso does not refer to the standard of proof to be applied in disciplinary cases (or in faculty cases).  It refers only to ‘faith, discipline or ceremonial’, not to ‘faith, discipline, ceremonial or evidence’.  It entitles the Church in Wales courts to decide for themselves whether the proven facts of a case amount to misconduct or indiscipline by the accused person.  It does not entitle them to decide how the facts shall be proved in the first place.  The High Court understood the word ‘discipline’ to include ‘evidence’, but the wording and context of the proviso do not admit of such a broad, loose interpretation.

The constitution of the Church in Wales provides for the appointment of a rule committee, composed of ecclesiastical judges, which has power to issue rules ‘for regulating … the administration, practice and procedure’ of the Chruch courts (now found in Chapter 9, s.38).  Any rule concerning the standard of proof should be sought either in the constitution or in the procedural rules made under the authority of the constitution.  If both constitution and rules are silent, the standard of proof must be determined by the English ecclesiastical law as at the date of Disestablishment.  This law will bind the courts of the Church in Wales, unless and until overridden by the constitution or by procedural rules made by the rule committee.

If the proviso concerning ‘discipline’ entitled the Church in Wales courts to disregard the standard of proof laid down by English law, this would allow the possibility that different Church courts, or even different constitutions of the same court, might apply different standards of proof in different cases.  One clergyman’s guilt might be decided according to the criminal standard, another’s according to the civil standard.

 

Overseas and Other Clergy

During the 18th and 19th centuries, seven Acts of Parliament were passed concerning the ordained ministry outside the jurisdiction of the Church of England.  The Acts concerned the following territories:

1.  The USA

2.  Jerusalem

3.  Scotland

4.  The colonies (‘His Majesty’s foreign possessions’)

The USA became an independent Republic as a result of the War of Independence.  Jerusalem was part of the Ottoman (Turkish) Empire until the early 20th century.  Scotland was united with England in 1707, but the Church of Scotland had been presbyterian since the Glorious Revolution of 1688 and was not subject to English ecclesiastical jurisdiction.  However, an unofficial (and, for many years, illegal) Episcopal Church continued to exist in Scotland after 1688.

Ecclesiastical jurisdiction over the colonies before the 19th century was evidently uncertain and rather ineffective.  Phillimore relates that ‘All British subjects in foreign parts were declared by an order in council at the time of Charles I to be under the jurisdiction of the Bishop of London as their diocesan’ (Ecclesiastical Law 2nd edition 1895, p.1770).  However, no colonial bishops were appointed.

The seven Acts of Parliament, and the territories to which they related, were as follows:

1.  The Ordination of Aliens Act 1784 (24 Geo 3, c.35)         USA

2.  Act of 1786 (26 Geo 3, c.84)                                                       USA

3.  The Ordination for Colonies Act 1819 (59 Geo 3, c.60)   Colonies

4.  Act of 1840 (3 & 4 Vict, c.33)                                                     Scotland / USA

5.  The Bishops in Foreign Countries Act 1841 (5 Vict, c.6) Jerusalem

6.  The Colonial Bishops Act 1853                                                   Colonies

7.  The Colonial Clergy Act 1874                                                     Colonies

The Acts regulated:

(1)  the supply of clergy to other Churches and

(2)  the reception of clergy from other Churches.

The colonial legislation was missionary in character, concerned with the advancement of religion and the cure of souls throughout the British Empire (1819 Act, preamble).  The legislation concerning the USA and Jerusalem seems to have been diplomatically rather than religiously motivated, to assist persons in those jurisdictions who were desirous of worshipping according to an Anglican form (1784 Act, preamble, 1841 Act, s.2).

The Acts of 1784, 1786 and 1841 provided for the supply of ordained ministers to persons outside the jurisdiction (the USA and Jerusalem).  The 1784 and 1786 Acts permitted the ordination of ‘aliens’, not British subjects, by English Archbishops and bishops, without requiring the oaths of allegiance, supremacy and obedience.  The 1841 Act was passed to ‘enlarge the powers’ conferred by the 1786 Act (recital).  It allowed the consecration as bishop of British subjects as well as foreigners.

The effect of these Acts, which caused controversy at the time they were passed, was to separate ministry from jurisdiction.  Once the candidates had been ordained and sent back to America or Jerusalem, they could no longer be subject to the Church of England authorities.

However, the three Acts were clear that persons ordained under their authority were not allowed to officiate in the Church of England.  They could only officiate outside the jurisdiction.  This created the position that English law enabled ministers to be ordained for ministry outside the jurisdiction, while denying their ability to exercise ministry within the jurisdiction.  Thus the separation of ministry from jurisdiction was permanent and irreversible.

The Act of 1840 relaxed this prohibition, very slightly.  Clergy of the American Church were permitted to exercise their ministry in the Church of England, but only on a very limited basis and subject to strict control.  A similar relaxation was granted to Scottish episcopal clergy.

The 1840 Act was the first statutory recognition of the ordained ministries of Churches outside English ecclesiastical jurisdiction.  It recognised clergy who were ‘canonically ordained by any Bishop’  of the Scottish or American Churches.  Such clergy were deemed to satisfy the conditions of ordination laid down in the 1662 Ordinal.  They were not required to be ordained in the Church of England.

Any Scottish or American clergyman wishing to officiate in England or Ireland had to produce a reference from his own bishop certifying that he ‘professeth the Doctrines of the United Church of England and Ireland’.  This suggests that Parliament acknowledged the Scottish and American bishops’ judgement of Church of England doctrine, though any references still had to be accepted by the English authorities.

Thus the effect of the 1840 Act was that the jurisdictions of the Scottish and American Churches were formally recognised by English ecclesiastical law, as well as their ministries.

The Scottish Episcopal Church and the American Church are not constituted or ‘established’ by the laws of Scotland and the USA, as the Church of England is constituted by English law.  The recognition of these two Churches, notwithstanding their lack of a legal ‘establishment’, may have been encouraged by the then-fashionable Tractarian doctrine of Apostolic Succession, which held that all bishops possess an inherent authority as successors of the Apostles.

The colonies, like Scotland, were subject to the jurisdiction of the Crown, but not to that of the Church of England.  Thus the regime applied to colonial clergy was similar to that applied to Scottish and American clergy.

Under the 1819 Act, only the two Archbishops and the Bishop of London had the right to ordain colonial clergy (including bishops), though they could authorise other bishops to perform ordinations.  Clergy ordained for the colonies could not officiate in England without special permission, and references were required from the relevant colonial bishop.  If there was no bishop, the reference was taken from the colonial governor, or the secretary of state for the colonies.

The 1819 Act also forbade a colonial clergyman to officiate anywhere if he had been ordained by a bishop ‘who at the time of such ordination did not actually possess an episcopal jurisdiction over some diocese, district or place or was not actually residing within such diocese, district or place’ (.s4).  Any appointment of such a clergyman to an ecclesiastical office was null and void (s.5).

This provision supports the view that in English law, unlike Roman Catholic law, an ordination must be lawful in order to be valid.  A mere ceremony of ordination (laying on of hands etc) performed by a bishop is not enough.  The bishop must have performed the ordination under some authority recognised by English law.

The 1853 Act empowered all English (and Irish) bishops to delegate ordinations and other episcopal functions to the Bishops of Calcutta, Madras and Bombay, though the consent of the Archbishop was also required.  At that time Indian bishops were appointed and officiated under the authority of royal letters patent.  However, the Act made clear that the Indian bishops could not exercise jurisdiction within the United Kingdom (s.5).

By the time the 1874 Act was passed the first Lambeth Conference had met (1867), the Church of Ireland had  been disestablished (1869-70), and some colonial Churches (e.g the South African Church) had become self-governing, like the Scottish and American Churches.  The modern Anglican Communion had emerged.

The 1874 Act made it easier for clergy ordained by overseas bishops to officiate in England.  It relaxed the regimes imposed by the 1819 Act and the 1840 Act.  Clergy ordained under the 1853 Act were treated as if they had been ordained by English bishops (s.8) and were therefore not subject to any special restrictions.  Moreover, it was no longer necessary that the ordaining bishop should have been authorised to officiate by royal letters patent, or to have officiated within the jurisdiction of the Crown.

Thus the 1874 Act effectively enabled the Church of England to recognise any Church with an episcopal ministry.  The essential test was ‘that such bishop be a bishop in communion with the Church of England’.

This was the first use of the word communion in any of the seven Acts.  It was not defined.  The more exact requirement imposed by the 1840 Act, profession of the doctrines of the Church of England, was not revived.

The 1874 Act provided a further separation of ministry from jurisdiction by permitting the Archbishops to consecrate bishops for ministry outside the Church of England (s.12).  The Act also echoed the 1819 Act in rendering null and void any appointment that did not comply with its provisions (s.6).

The Church of England and the American Episcopal Church

The consecration of Bishop Seabury was performed by Scottish bishops, not by the Archbishop of Canterbury, and was not authorised by any English, or British, law (Phillimore Ecclesiastical Law 2nd ed 1895, p.1771).  However, the Archbishop of Canterbury did ordain two other American bishops under the authority of an Act of Parliament of 1786 (26 Geo 3, c.84, now repealed).

The 1786 Act enabled either Archbishop to consecrate as bishop ‘citizens of countries out of His Majesty’s Dominions’, without requiring the Monarch’s licence for their election or the royal mandate for their consecration, and without requiring the candidates to take the oaths of allegiance and obedience.

However, this power was subject to conditions.  The Monarch’s licence was required for the consecration of the particular candidate.  The Archbishop was required to be ‘fully ascertained of [the candidates’] sufficiency in good learning, of the soundness of their faith, and of the purity of their manners’.  The consecration was to be performed according to the manner prescribed by ecclesiastical law, that is, not by the Archbishop alone, but with the assistance of two other bishops.

Thus the provisions of the 1786 Act do not support the supposed primacy or ‘presidency’ of the Archbishop of Canterbury over the Anglican Communion.  The Archbishop did not, and could not, consecrate the American bishops on his own authority, but only on the authority of the British Parliament and with the licence of the Monarch (who was then King George III).  He did not consecrate the bishops by himself, but with the assistance of other Church of England bishops. 

Moreover, the power to consecrate was shared with the Archbishop of York.  If the Archbishop of Canterbury had suddenly died or been taken gravely ill and so been unable to act, or had merely been unwilling to act, the Archbishop of York could have performed the American consecrations just as lawfully.

It is true that the Archbishop of Canterbury was the principal agent of the American consecrations, but in performing them he was acting as an official of the Church of England and in accordance with English law, as laid down by the (secular) authority of Parliament.  He was not exercising any power or charism supposedly inherent in his office.

It is arguable that the 1786 Act, by permitting the consecration of American bishops in the Church of England, gave implicit legal recognition to the earlier consecration of Seabury.  The historical evidence apparently suggests that the Act was passed after the American ambassador had assured the Archbishop that the consecrations would not be regarded as an interference in domestic American politics (Chapman, Anglicanism, OUP 2006, p.99).  It is therefore arguable that the consecrations enjoy recognition in international law, as well as in domestic English law.  However, the basis of any legal recognition is the secular authority of the British Parliament and of the American government.

The Break with Rome

This is, of course, a very well-known subject of English history, with which students of ecclesiastical law will have been familiar from early childhood.  Nevertheless, it is advantageous to apply a legal lens to the well-known historical facts.  That is the aim of this paper.

The break with Rome was effected by certain Acts of Parliament, listed here in chronological order: 

1532   Act concerning First Fruits and Tenths        23 H8 c.20

             Ecclesiastical Appeals Act                                  24 H8 c.12

1533   Submission of the Clergy Act                            25 H8 c.19

             Appointment of Bishops Act (‘ABA’)              25 H8 c.20

             Ecclesiastical Licences Act                                25 H8 c.21

             Act of Succession                                                   25 H8 c.22 

1536   Act of Supremacy                                                  28 H8 c.10

             Ecclesiastical Licences Act                                28 H8 c.16

1540   Marriage Act                                                           32 H8 c.38

The Henrician legislation was concerned to repudiate the juridical effects or incidents of papal supremacy.  The content of the legislation suggests that these effects may be divided into two categories:

(1)  a property-based, or tenure-based, feudal overlordship

(2)  a supreme judicial authority over legal claims made in the ecclesiastical courts.

Thus ‘papal supremacy’ in the early 16th century meant that the Pope was both the supreme landlord and the supreme judge of the English Church.  The relevant legislative provisions may therefore be divided into those regulating:

(1)  ecclesiastical tenure and

(2) ecclesiastical jurisdiction.

Tenure

 The Church was reminded that its ‘honour and possessions’ had been settled on it by Monarchs and secular landowners, not by the papacy (Appeals Act 1532).

Feudal dues, known as annates and first fruits, paid to Rome by Archbishops and bishops, were declared unlawful and forbidden (recited ABA).

No ecclesiastical or lay person was to pay ‘any pensions … portions, peter-pence or any other impositions to the use of the … Bishop or of the See of Rome’ (Ecclesiastical Licences Act 1533, s.[1]).

Candidates for episcopal office were no longer to be presented to Rome for papal approval.  New Archbishops did not require the papal pallium (ABA, s.2).

The present procedure for appointing Archbishops and bishops was settled (ABA).  New Archbishops and bishops received their ‘temporalities’ from the Monarch and took the oath of allegiance to him (s.5).

It was declared that Archbishops and bishops appointed before 1533 held their offices and property ‘by the authority of this present Parliament and not by virtue of any … foreign authority’ (Ecclesiastical Licences Act 1536, s.3).  Likewise all other ecclesiastical officeholders held office by English law alone.

The subsequent dissolution of the monasteries was an assertion that all ecclesiastical property was now regulated exclusively by English law.

Jurisdiction

Before the Ecclesiastical Appeals Act 1532, judicial appeals lay to Rome in respect of wills, matrimony and tithes.  That Act provided that such cases would in future be finally determined within the jurisdiction of England.

Although the papal jurisdiction was abolished, the English jurisdiction over wills etc was not secularised.  It was acknowledged that the subject-matter of such cases ‘appertaineth to the spiritual jurisdiction of the realm’.  That jurisdiction was not secularised until the 19th century.

The 1532 Act further provided that excommunications and interdicts from Rome should have no effect in England.

The following year, the Submission of the Clergy Act 1533 provided that no appeals could be made to Rome from the Convocations (s.4).

Then the Ecclesiastical Licences Act 1533 banned all legal claims or petitions to Rome, whether ‘for licences, dispensations, compositions, faculties, grants, rescripts … or any other instruments or writings … for any cause or matter’ (s.2).  The Archbishop of Canterbury was granted jurisdiction to decide such claims instead.  However, in important cases, the Archbishop’s grant of a licence, dispensation etc had to be confirmed by the Monarch or the Lord Chancellor (s.4).

If the Archbishop refused to grant a licence or other instrument, or were to refuse to exercise the former papal jurisdiction at all, the Lord Chancellor might compel him to do so (s.11).  The Monarch was empowered to appoint two other bishops to exercise the jurisdiction in place of a reluctant Archbishop (s.12).

Papal indulgences and privileges granted prior to the 1533 Act were not revoked by the Act but were made subject to ‘ordering, redress and reformation’ by the Monarch in Council (s.21), which suggests a power to limit or even abolish them.

The second Ecclesiastical Licences Act, passed in 1536, went further than the 1533 legislation and cancelled ‘all bulls, briefs, faculties and dispensations’ formerly granted by papal authority (s.1).  However, their owners could apply to the Court of Chancery or to the Council for an order to the same effect as the original papal instrument (thus confirming or saving it), provided that that effect was within the Archbishop of Canterbury’s jurisdiction under the 1533 Act (s.5, and see below).

As its modern title implies, the Submission of the Clergy Act 1533 was an assurance that the clergy would respect the newly-asserted royal supremacy over the Church.  It provided that ecclesiastical legislation (i.e rules and decisions made by ecclesiastical authority) would not be made or put into effect if ‘contrary or repugnant’ to English law (s.3).

Apart from the prohibition of appeals to Rome mentioned earlier (s.4), the Act does little more than signify an acquiescence in the break with Rome that was effected by other legislation.  The Act also promised a reform of ecclesiastical law that was never completed.

The Act of Supremacy 1536 completed the break with Rome by making it a criminal offence to ‘extol the authority’ of the Pope.  All ecclesiastical and lay officeholders were required to swear an oath renouncing papal authority.  The Act warned that refusal of the oath ‘shall be adjudged high treason’.

The Reformation

The Henrician legislation necessarily involved a religious claim, the God-given authority of the Monarch over the English Church (cf Appeals Act, preamble).  In the pre-secular era, human law could not be separated from divine law.  However, the ‘break with Rome’ was initially intended to be just that, limited to the repudiation of papal authority over England.

The Ecclesiastical Licences Act 1533 was at pains to make clear that no radical new doctrine was being advanced: ‘[nothing] therein contained shall be hereafter interpreted … to decline or vary from the congregation of Christ’s Church in any things concerning the very articles of the Catholic faith of Christendom; or in any other things declared by Holy Scripture and the Word of God necessary for … salvation …’ (s.13).

This remains the strict constitutional position to the present day.  It is said that the English Reformation did no more than correct late mediaeval errors concerning the ‘very articles of the Catholic faith’, thus preserving them intact for the future.  Papal overlordship and jurisdiction was itself seen as a late mediaeval error.

However, the break with Rome inevitably opened the door to further reassessments of Catholic doctrine.  The Ecclesiastical Licences Act 1533 itself hinted at this.  The jurisdiction inherited by the Archbishop of Canterbury from the Pope was limited to claims ‘not being contrary or repugnant to the Holy Scriptures and laws of God’ (s.2). 

This, of course, implied a jurisdiction to decide questions of religious doctrine (i.e what was or was not contrary to Scripture and divine law).  The Appeals Act 1532 also clearly asserted that the English Church was ‘sufficient and meet of itself … to declare and determine all [religious] doubts’ (preamble).

The first religious doctrine to be considered concerned marriage.  It is well known that the break with Rome was precipitated by the controversy over Henry VIII’s marriages to his first two wives.  Thus the break with Rome was followed by a reformed doctrine of marriage.  Again, the Pope’s authority was considered in terms of its juridical effect, this time on marriage rather than ecclesiastical tenure and jurisdiction.  More ‘other-worldly’ religious questions were addressed separately.

The two Acts of Parliament were concerned to regulate all marriage, not just royal marriage.  The validity of marriage was then of critical importance to the legitimacy of children and hence to the succession of property.  As mentioned, marriage was universally acknowledged to be a subject of ecclesiastical jurisdiction.  The supreme ecclesiastical jurisdiction of the papacy therefore involved considerable control over the disposition of secular property.

The Act of Succession 1533 strongly affirmed the prohibition of marriage within the degrees prohibited by the Bible.  It denied any human power to dispense from the divine prohibition.

This, of course, was the basis of Henry VIII’s claim that his marriage to Katherine of Aragon was a nullity.  She had been married to his deceased brother.  Judicial inquiry had supposedly proved that she ‘by him [the brother] was carnally known’ (s.2).  Marriage to a sister-in-law was within the prohibited degrees.  The Pope’s original dispensation permitting Henry’s marriage to Katherine was therefore invalid.  The Pope had no power to permit what God forbade.

The Act therefore forbade all future marriages within the prohibited degrees, and provided that any persons so married should be separated, but only by the ‘definitive sentence’ of the English ecclesiastical courts and ‘none other power or authority’ (s.5).

The later Marriage Act 1540, by contrast, denied the Pope’s power to forbid any marriage not forbidden by divine law.  This time he was accused of ‘making that unlawful which by God’s word is lawful’ (preamble).  The Act provided that an unconsummated marriage contract was no bar to a subsequent marriage ‘solemnised in the face of the Church’.  No prior dispensation was required for such a marriage.  Likewise marriage between remote cousins was not within the prohibited degrees, and so was lawful, without any dispensation being required.

Thus the conclusion of these two Acts was that

(1) all marriages not forbidden by Scripture were lawful and

(2) no marriage forbidden by Scripture could be made lawful.

English marriage was therefore based on the divine law revealed in the Bible, but as interpreted by the Monarch, Parliament and the English ecclesiastical courts.

It should be noted that there was no denial at this stage that marriage was a sacrament.  Nor was there any suggestion that human authority could dissolve a valid marriage.  On the contrary, all unconsummated marriages not forbidden by Scripture were ‘lawful, good, just and indissoluble‘ (1540 Act, s.2).

Attorney-General -v- Glasgow College: Apostolic Succession and English Law

(1846) 63 English Reports 908

A will trust made in the 1670s provided scholarships to graduates of Glasgow College to study at Oxford, on condition that they ‘enter into holy orders’ in Scotland.  The testator was a Scotsman who had studied at Glasgow in 1643.  However, he later settled in England, and the trust was of English property.

The Church of Scotland had a presbyterian structure in the 1640s, the time when the testator was a student.  By the 1670s, when he died, it had changed to an episcopal structure, in the sense that it possessed an ordained ministry of bishops, priests and deacons.  After the testator’s death, the Church of Scotland reverted to a presbyterian structure, a result of the ‘Glorious Revolution’ of 1688, which it has retained ever since.  However, an unofficial episcopal ministry continued in Scotland after 1688.

In the 1840s there was a dispute over the administration of the trust.  The episcopalians argued that they, not the presbyterian Church of Scotland, were the true beneficiaries of the Oxford scholarships.  The presbyterians answered that their Church was one and the same as the Church of Scotland of the 1670s, notwithstanding the change of structure in 1688.

The English court, required to settle this dispute between Scotsmen, examined the terms of the trust, in particular the words ‘holy orders’.  It held that this expression could only mean ‘orders by episcopal ordination’ (p.923).

On this basis, the court went on to conclude that the episcopal Church ‘as it now is … is identical with the protestant episcopal Church of Scotland as it was in 1677-9’ (p.926).  The proof of this identity was ‘continu[ity] by an unbroken succession of bishops, from the [1670s] down to the present time’.

However, this succession of bishops had had no legal basis after 1688.  Indeed it had for many years been positively unlawful.  The court overcame this difficulty with the historically questionable assertion that the post-1688 episcopal Church ‘does not appear to have had toleration legally refused to it in Scotland at any period’ (p.923).  It also pointed out that Acts of Parliament passed in the 18th and 19th centuries had lifted the restrictions on episcopalianism and had expressly recognised the Scottish bishops.  This meant that the Scottish bishops ‘can[not] be correctly suggested to have had no legal right to that title in Scotland’ (p.923).

Thus the ratio of the court’s conclusion was the episcopal Church had survived 1688

(1) by an unbroken succession of bishops (a fact)

(2) this unbroken succession had not been unlawful and

(3) it was positively recognised by Act of Parliament.

This case was decided during the tractarian era, when the doctrine of Apostolic succession had become newly fashionable in the Church of England (and in Scotland).  Tractarian influence may explain why the court was evidently impressed by the fact of an unbroken succession of bishops.  Had the case arisen before the tractarian era, the court might have been much less impressed by this fact, and placed more emphasis on the bishop as an official of the state, whose appointment and function is regulated by the law of the land.  The Scottish bishops could hardly have satisfied this pre-tractarian concept of episcopacy.

In spite of this favourable conclusion, the episcopal Church did not obtain the benefit of the Oxford scholarships.  The court ordered an inquiry, to see if anything could be done in this regard.  However, the House of Lords set aside the order: Glasgow College v Attorney-General (1848) 9 English Reports 978.

The House of Lords agreed with the original court’s interpretation of ‘holy orders’.  It also seemed to accept the court’s conclusions (1), (2) and (3) above (at least, it did not expressly deny them).  However, it noted that, as a result of court orders made in the 18th century, the trust property ‘had been declared to be administered, not according to the terms of the testator’s will (that having become impossible), but according to a scheme omitting that part of the direction which required the scholars to enter into holy orders’ (p.989). 

Thus a court-approved scheme had been substituted for the original trust in the 18th century, because the change of Scottish ecclesiastical government after 1688 from an episcopal to a presbyterian system had made it impossible to comply with the condition about entering holy orders.

The Lords rejected the episcopalians’ plea that times had changed since the Glorious Revolution and the 18th century: ‘Is not the presbyterian form of Church government still the established Church government of Scotland? … nothing has taken place since those [18th century] decisions were pronounced which would justify a court … in departing from them …’ (p.990).

The Lords also repeated the questionable assertion that the post-1688 episcopal Church had never been denied legal toleration: ‘it is possible and legal to apply any income for the better provision of the protestant episcopal Church of Scotland’ (p.988) … There was no prohibition of persons following the episcopalian form of church government in Scotland’ (p.990).  If that was indeed the case, it is difficult to see why the 18th century courts should have concluded that the testator’s condition about holy orders had become ‘impossible’.

Difficulties with the Term ‘Religious Law’

The suggested concept of an inter-religious ‘common law’ faces at least four difficulties:

First, it assumes what it seeks to prove.  It implies that there are principles and rules of governance common to all religions, Christian and non-Christian alike.  However, it is argued that the existence of such common principles and rules must be established first, by research.  Only then may it be legitimate to label them collectively ‘religious law’.  It is wrong to speak of a ‘religious law’ whose existence has not yet been established, relying only on the hope that future research will confirm its existence.

Second, it may give the misleading impression that Christianity teaches a divinely ordained legal order, as some other religions do.

Third, much ecclesiastical regulation is not law, nor is it particularly religious.  The Roman Catholic Church, the Church of England, the Church of Scotland and certain European Protestant Churches are indeed constituted by law, but most Anglican and Protestant Churches govern themselves by quasi-contractual rules which are not laws and do not claim to be.

Much ecclesiastical governance, whether by law or by quasi-contractual rules, is derivative, drawn from contemporary secular governance.  Thus it is not very religious in content.  There is not much point in persons of other religions studying ecclesiastical governance that is merely derived from secular governance.  They might as well study the relevant secular governance directly.

Fourth, the basis of all regulation within the Christian community is the Church (ecclesia) and the concept of ecclesia is unique to Christianity.  It is true that there is profound disagreement among Christians as to what ecclesia is.  Nevertheless, all Christian communities profess a belief in ‘the Church’, and regard themselves as, in some sense, a part of it.  All Christian communities and places of worship are described, at least colloquially, as ‘churches’.

The Roman Catholic Church does not officially accept that Protestant communities are Churches in the true sense.  However, it does accept that indefinable elements of the true Church are present with Protestantism.  It also acknowledges that Protestant Churches are churchlike (‘ecclesial communions’).  They resemble or imitate the Church, even though they are not the genuine article.

Thus a ‘religious law’ which neglects or marginalizes the concept of ecclesia will not have much relevance to the governance of Christian communities.  On the other hand, a religious law which is based on the concept of ecclesia is unlikely to have much to say to non-Christian religions.

It is argued that the phenomenon variously described as ‘religious law’, ‘Christian law’ or ‘canon law’ is best described as ecclesiastical governance (cf. corporate governance).  This term is broad enough to encompass the different legal regimes (ecclesiastical law, canon law, quasi-contractual rules) that apply to different Church communities, and yet does not ignore or blur the differences between them.

The Canons of 1603: Holy communion

The 1603 canons generally encourage the reception of holy communion. The faithful should receive the sacrament ‘oftentimes’ (canon 13). They are bound to receive it ‘at least thrice in a year’ (canon 21). Clergy should remind them of this duty (canon 23). Moreover, the incumbent of a benefice should not delegate all the responsibility to his curate, but should administer communion at least twice a year (canon 56). Members of the universities and cathedral foundations should receive at least four times a year (canons 23 and 24) or even weekly (BCP rubric of 1558).

The wording of the canons suggests that the evil they were intended to cure was popular neglect of communion, rather than excessive enthusiasm for it. It was noted that ‘many … do not receive that sacrament [even] once in a year’ (canon 22), let alone the required three occasions. The Book of Common Prayer (BCP) prescribes an exhortation for use by a priest whose parishioners are ‘negligent to come to the holy communion’. Those who neglected to receive communion at Easter were subject to ecclesiastical discipline (canon 112).

The canons follow the 39 Articles. The Articles deprecate as superstitious and unscriptural the adoration of the consecrated bread, but urge its consumption (cf. Articles 25 and 28).

Catholics refused to receive communion in the Church of England: ‘being popishly given … they come to the church, yet do refuse to receive the communion’ (canon 114). Strict protestants were also reluctant to receive it. Protestantism tended to emphasise word over sacrament. There was a reluctance to receive holy communion from non-preaching ‘dumb dog’ clergy (canon 57). (People may have thought that, if a clergyman was incapable of administering the word of God by preaching, he must also be incapable of administering the sacrament effectively.)

The device of occasional conformity, whereby dissenters received holy communion annually in order to comply with their legal obligations but otherwise practised their religion separately, may already have begun (cf canon 27). Thus catholics were prepared to hear the word of the Church of England, but refused its sacrament. With protestant dissenters it was the other way around.

The canons encourage the reception of holy communion, but only in the context of a strict discipline. ‘Notorious offenders’ were excluded, pending their repentance and reconciliation (canon 26). Communicants were required to kneel, a controversial practice in the Reformation era (canon 27). The link between word and sacrament was insisted on, hence communion was denied ‘to any that refuse to be present at Public Prayers according to the Orders of the Church of England’ (canon 27), a reference to dissent and occasional conformity.

There was a strong emphasis on holy communion as a collective, corporate act.  Communicants were expected to receive the sacrament in their parish church, and nowhere else. ‘Strangers’ were not to be admitted, but ‘[sent] home to their own parish churches and ministers there to receive the Communion with the rest of their own neighbours’ (canon 28). The sacrament was not to be administered in any private house ‘except it be in times of necessity’, that is, where a communicant was gravely ill (canon 71). The occupants of grand houses with their own private chapels were still expected to receive holy communion in the parish church at least once a year.

The general rule of communion in the communicant’s own parish church was reinforced by the rule that the priest should not administer communion alone, only in the company of lay communicants (BCP rubric). Private masses were not allowed. Again, the canons follow the 39 Articles, which insist that communion should be administered to priest and people alike (Article 30) and that word and sacrament should be administered in ‘a tongue … understanded of the people’ (Article 24).

If there was a rule of mediaeval canon law limiting reception of holy communion to once a day, it did not survive the Reformation. There would have been scant opportunity for receiving the sacrament more than once a day in the post-Reformation era. The monasteries had been dissolved, private masses forbidden and the sacrament was generally allowed only in the parish church.

The homilies are commended for their ‘godly and wholesome doctrine … to be read in Churches by the ministers’ (Article 35). Thus even if one of the homilies contained a ‘rule’ limiting the number of times for receiving holy communion, this would be a mere exhortation, without any binding effect.