Overseas and Other Clergy

by Philip Jones

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).