Ecclesiastical law

Month: May, 2012

The Constitutional Doctrine of the 39 Articles

The Universal Church

Article 19 refers to the visible Church of Christ, and thereby affirms that the Church may be identified on earth, as well as in Heaven.  Article 26 makes another reference to the visible Church, and states that it contains evil elements as well as good.  In the 1662 Ordinal, the Church is described as the Spouse and Body of Christ.

The visible Church is described only as

‘a congregation of faithful men, in the which the pure Word of God is preached, and the Sacraments be duly ministered according to Christ’s ordinance’ (Article 19). 

Thus the defining characteristic of the Church is a true ministry of Word and Sacrament.  The Church is thereby a ‘witness and keeper of holy writ’ (Article 20).

In connection with this ministry of Word and Sacrament, Article 20 asserts that

‘The Church hath

[1] power [from God] to decree Rites or Ceremonies, and

[2] authority [from God] in Controversies of Faith’.

In a commentary on the 39 Articles, E.J Bicknell draws attention to the different choice of words in Article 20, ‘power to decree’ (statuendi jus) and ‘authority’ (auctoritas).  He suggests that the Church’s ‘power’ over rites and ceremonies (i.e worship) is legislative in character, whereas its ‘authority’ over controversies of faith (i.e doctrine) is judicial in character.

The legislator may change the law, as circumstances demand.  The judge may only declare what the law already is.  Thus new forms of worship may be introduced by the Church, but not new doctrines.  The Church can only declare or clarify existing doctrine (3rd edition 1955, pp.249-53).

Article 34 implies a principle of subsidiarity by affirming that ‘particular or national Churches’ may ‘ordain, change and abolish, ceremonies or rites of the Church ordained only by man’s authority’.  This is a reference to worship, not doctrine.

In discharging its ministry of Word and Sacrament, the Church is not protected from error.  The intercessory prayer in the 1662 Holy Communion service asks ‘that all they that do confess thy holy Name, may agree in the truth of thy holy Word’.  The errors of the late mediaeval Church were, of course, the justification for the Reformation.

Article 20 provides that ‘it is not lawful for the Church to ordain anything that is contrary to God’s Word written’, but it is clearly possible for particular Churches to do so.  The Churches of Jerusalem, Alexandria, Antioch and Rome have erred (Article 19), and so also have General Councils of the Church (Article 21).

Article 23 provides that the ministers of Word and Sacrament in the Church must be ‘chosen and called to this work by men who have publick authority given unto them in the Congregation’.

Bicknell points out that the word ‘called’ is rendered cooptati in the Latin text.  From this he concludes that Article 23 requires that those with the power to choose and call new ministers must themselves be ministers of Word and Sacrament, as distinct from secular officials (p.321).

A Local Episcopate

However, Article 23 does not suggest that a particular rite (laying on of hands etc) is necessary to constitute lawful ministers.  Nor does it refer to episcopal ordination.  The Word and Sacraments come from God, as does the duty to administer them.  However, the ministers are chosen and constituted as such by the Church.  Moreover, the precise structure of the ministry is determined by the Church, and this ministry does not have to be episcopal in character.

The 1662 Ordinal emphasises the local character of the episcopal ministry in England.  The Preface to the Ordinal states that the threefold ministry of bishops, priests and deacons has existed ‘from the Apostles’ time’.  The purpose of the Ordinal is ‘that these orders may be continued and reverently used and esteemed in the Church of England’.

This wording indicates that the basis of the threefold ministry is historical only, and that its retention is a matter of choice by the Church of England, under the terms of Article 34, not in obedience to any divine command.

The Ordinal, like Article 23, indicates the tension between the local, ‘particular’ Church and the universal Church.  The candidate is required to be called by God to the ministry, and is ordained to ‘the Church of God’, not to the Church of England.  However, the human response to the divine calling is determined by ‘the due order of this realm’.  This further indicates the authority of the local Church to settle the structure of its ministry, while affirming the divine origin of that ministry.

The 1662 Prayer Book also indicates the local character of the episcopate.  In the Litany, there is a prayer for ‘the holy Church universal’.  This is followed by prayers for the Monarch and the royal family, which are in turn followed by prayers for the bishops and other clergy, Parliament and government, and the judiciary.

Thus the sequence of the Litany is

Church – Monarchy – Clergy – Parliament and government – judiciary. 

The intercessory prayer in the communion service follows the same sequence.

It is clear from this sequence that the bishops and clergy referred to are those of the Church of England only.  No prayers are offered for any universal episcopal ministry, because no such ministry is recognised.  The bishops and clergy are prayed for in the context of the state only.  It is the state and the nation as a whole, not just its clergy, that are seen as a constituent part of the universal Church.

Modern liturgies, by contrast, imply a universal episcopal ministry, which presumably includes the Roman Catholic and Orthodox Churches but excludes most Protestant Churches.  Thus the 1662 liturgy has been discreetly rewritten.  The modern sequence is now

Church – bishops and clergy – Monarchy, Parliament etc. 

The episcopal ministry is identified with the universal Church, no longer with the local state Church only.

In the early modern period, the Church of England could hardly assert otherwise than that episcopal ministry is local, not universal.  During the Reformation era, most Protestant countries, England’s allies and co-religionists, had abolished the historic episcopate and were distinctly hostile towards it, associating it with popery and error.  Many English Protestants shared this hostility.  Some of the 39 Articles were derived from the Lutheran Confession of Augsburg.

A Federation of Godly Princes

Article 23 raises the question of ‘publick authority’, the power of governance in the Church.  This power is distinct from the ministry of Word and Sacrament.  Article 37 affirms that the power of governance vests in the secular ruler.  The power is ‘that … prerogative which we see to have been given always to all godly princes in holy Scriptures by God himself’.

Canon 2 of 1603 enlarges upon this statement, asserting that

‘the King’s Majesty hath … the same authority in causes ecclesiastical that the godly kings had among the Jews and Christian emperors of the Primitive Church …’.

Article 37 distinguishes between the power of governance and the ministry of Word and Sacrament.  Both come from God, but they are distinct.  Thus the secular ruler does not ex officio participate in the ministry.

Article 34 distinguishes between the universal Church and ‘particular or national’ Churches, of which the Church of England is one.  It does not affirm the right of particular Churches unilaterally to determine ‘controversies of faith’, only rites and ceremonies.  Article 37 is clear that the secular ruler’s jurisdiction over his own particular Church is not subject to any foreign jurisdiction, including that of the Bishop of Rome.

Article 21 also alludes to the distinction between the universal and the particular Churches.  It provides that General (i.e ecumenical, worldwide) Councils of the Church may be convened to determine religious questions, just as they had been during the later Roman Empire and the middle ages, but only at ‘the commandment and will of princes’.

It is possible to discern an early form of international law here: 

(1) There is one universal Church and one ministry of Word and Sacrament.  However, the universal Church comprises a number of particular or national Churches, each ruled by its own ‘godly prince’, an ecclesial United Nations. 

(2) There is only one ministry, which may or may not be episcopal in character, but the structure of the ministry within each particular Church is a matter for that Church only. 

(3) Each godly prince and particular Church has a jurisdiction independent of the others.  However, a General Council may be called with the agreement of the godly princes, as a forum for resolving controversies of faith.

An international Church governed by a federation of godly princes was plausible in the early modern, pre-secular era, and not only to Protestants.  The association of the Church of Rome with the Churches of Jerusalem, Alexandria and Antioch in Article 19 may have reflected an expectation that the former would soon go the way of the latter three.  The reformers may have envisaged a new federation of Churches, perhaps with Calvin’s Geneva as the new Rome.  Catholic princes did not go so far as to repudiate all papal authority, but they too asserted a jurisdiction over their own particular Churches.

Of course, this internationalist ecclesiology has not survived in the modern secular era.  The papacy did not come to an end, the godly princes did.  Modern international law has been drained of any religious content beyond certain ethical norms and ‘human rights’.

The English monarchy was not abolished, of course, and to this day the Monarch remains Supreme Governor of the Church.  Nevertheless, although the Church of England remains ‘established by law’, the English state has otherwise become thoroughly secularised.  The royal supremacy is now justified on political, not religious, grounds.  The wording of the modern Canon concerning the royal supremacy is worded ‘We acknowledge’, not ‘We believe’ (Canon A7).

Even this Canon only applies in England.  The Churches of Ireland and Wales were disestablished in 1869 and 1920 respectively.  As the British Empire progressively disintegrated, the Anglican Churches in the former colonies were re-constituted on an autonomous, voluntary basis.  Thus the Anglican Communion emerged.

The Modern Difficulty

Secularisation and disestablishment have therefore deprived the Anglican Church of the doctrine of governance provided in its presecular formularies.  The royal supremacy is not even mentioned in modern commentaries on Church of England doctrine.  Yet it would be surprising to find a commentary on Roman Catholic doctrine which did not discuss papal supremacy.

Indeed the Anglican Church may be unique among Christian communities in having no clear religious claim of authority.  The Roman Catholic and Orthodox Churches have the Pope and Patriarchs with their claim to be successors of the Apostles.  The Church of Scotland has its God-given presbyterian structure.  Methodists and Baptists have their congregations with the promise of the Lord’s Presence ‘where two or three are gathered together in My Name’.  However, the Anglican Church no longer has its federation of godly princes.

In the 19th century, the tractarians responded to this difficulty by developing a doctrine of Apostolic Succession similar to that of the Roman and Orthodox Churches.  This doctrine became fashionable in the 1830s and 1840s and attracted judicial notice.  It was briefly referred to in the case of R v Millis (1844) 8 English Reports 841 at p.916, and probably influenced the court’s conclusion on ‘holy orders’ in Attorney-General v Glasgow College (1846) 63 English Reports 908.

The effect of the new tractarian doctrine was brilliantly described by Hensley Henson:

‘Episcopacy which, under Elizabeth [I], had been justified as a political necessity, was, under Victoria, exalted as a religious principle.  National establishment which, under the one Queen, had been urged as religiously indispensable, declined, under the other Queen, into a temporary expedient’ (The Church of England, Cambridge University Press, 1939, p.253).

As Hensley Henson implied, and as our analysis has shown, the first difficulty with the tractarian-inspired doctrine of a universal episcopate descended from the Apostles is that it is incompatible with the constitutional doctrine contained in the 39 Articles.  However, it is also hard to reconcile with the present structure of synodical government. 

It is true that modern synodical government in the Church of England (probably in most other Anglican Churches too) scrupulously respects the distinctness and the primacy of the episcopal order, and the bishop’s traditional functions of pastoral oversight and discipline within the diocese.  This reflects the tractarian influence. 

Nevertheless, English bishops do not have Apostolic authority as the Roman Catholic and Orthodox Churches understand this.  They have no power unilaterally to legislate for their Church.  On the contrary, their power is defined and limited by their Church’s constitution.  They officiate within their particular Church, rather than over it. 

Thus any ‘Apostolic’ authority vests in the Church as a whole, not in the bishops alone.  The most that can be said is that the bishops have the largest single share of this authority.

The tractarians themselves came to appreciate the difficulty of reconciling their doctrine with the ecclesiastical system.  Some, though not all, became Roman Catholics.  The most famous of them, Blessed John Henry Newman, later taunted his former co-religionists’ confusion over ecclesiastical governance:

‘In some points you prefer Rome, in others Greece, in others England, in others Scotland: and of that preference your own private judgment is the ultimate sanction’ (Anglican Difficulties and Other Writings, selected by W.S Lilly 1882, p.297).

It is interesting to compare the modern English constitution with the constitutional provisions of the 39 Articles.  In recent decades, and despite vociferous opposition, the secular constitution has been radically altered to confer considerable legislative, executive and judicial power on overseas institutions, such as the European Court of Human Rights and the various institutions of the European Union.  These constitutional changes were inspired by internationalism.  As discussed, the 39 Articles were also inspired by internationalism, albeit of a religious, not secular, character. 

Yet the modern ecclesiastical constitution of England, in contrast to its secular constitution and despite the constitutional provisions of its own formularies, remains resolutely insular in character.  For all its warm ecumenical expressions, the modern Church of England does not acknowledge any ecclesiastical jurisdiction outside itself.

Ecclesia and Ecclesiastical Law

Modern commentators on ecclesiastical law seem to have very little to say on the relationship between the Church’s law and its constitutional doctrine or ‘ecclesiology’.  

The second edition of Phillimore’s Ecclesiastical Law (1895) is nearly 2,000 pages long, but part one, which refers to the constitutional identity of the Church, is a mere 17 pages.  It indicates the tensions and contradictions that emerged in the 19th century.  A modern definition is offered of the Church as ‘a society instituted for the worship of God’ (p.1), but reference is also made to the earlier theocratic definition of the Church as the ‘ecclesiastical state and persons’ and ‘the spiritualty’ (p.2).

E Garth Moore’s Introduction to English Canon Law (3rd edition 1993, eds Timothy Briden and Brian Hanson) merely observed that ‘If modern England in practice approximates more nearly to the American concept [of religion], ancient England approximated more nearly to the Jewish one’ (p.12).

Professor Norman Doe acknowledged, correctly, that ‘much work still needs to be done on the theological and pastoral roots of ecclesiastical regulation’ (The Legal Framework of the Church of England 1996, Clarendon Press, Oxford, p.3).

Mark Hill declined to discuss the Church of England’s religious identity, holding that ‘The meaning, effect and future of establishment is a complex matter of history, ecclesiology, sociology and politics, which is beyond the scope of this book’ (Ecclesiastical Law, 2nd edition 2001, OUP, p.8)

‘Ecclesiology’ is a theological term, which was probably first used in England by the tractarians.  Any theological term is apt to discourage legal analysis of the subject referred to.  Hooker, of course, used the term ‘Ecclesiastical Polity’, which may be more congenial to legal discussion. 

The lawyers of the early modern period felt no embarrassment about discussing ecclesiology / ecclesiastical polity.  The religious doctrine of royal supremacy owes much to English common law.  Canon lawyers seem to have no difficulty with the Roman Catholic ‘ecclesiology’.

The subject described by the tractarians and by the modern Roman Catholic Church as ‘ecclesiology’, and described by Hooker as ‘ecclesiastical polity’, is one and the same.  It is the subject of what the Church is

It is argued that an advanced, systematic study of ecclesiastical law is not possible without discussion of this subject.  Any textbook on contract law begins with a discussion of what a contract is.  It discusses the elements of a contract, offer, acceptance, consideration, the intention to create legal relations.  Likewise a commentary on criminal law begins with the elements of a crime, actus reus and mens rea

Any worthwhile discussion of ecclesiastical law must therefore begin in the same way, with discussion of what ecclesia, the Church, is.  If theological terminology causes embarrassment, it need not be used.  Ecclesiastical lawyers should not be afraid to develop their own, legal terminology (such as that used in the title of this paper).  Without its defining subject, ecclesia, ecclesiastical law is little more than a quaint assortment of legal anachronisms and curiosities.

Ecclesiastical Law Ancient and Modern

Historical Development

It is surprising that the best short description of English ecclesiastical law should come from Strasbourg.  Amid all the confusion of English courts and lawyers on the subject, this dictum of a foreign tribunal may be commended for its clarity, simplicity and accuracy:

‘The ecclesiastical law of England is as much the law of the land as any other part of the law.  It is grounded in both common and statute law, and is altered from time to time by statute or by Measure, a form of legislation initiated by the Church of England but requiring Parliamentary approval’.

(Tyler v UK (1994) European Commission on Human Rights, Determination 21283/93, text published in Mark Hill, Ecclesiastical Law 2nd edition 2001, OUP, p.677).

Since the Reformation, ecclesiastical law, the law of the Church of England, has come from four institutional sources:

(1) the secular courts

(2) Doctors’ Commons (the ecclesiastical courts)

(3) the Convocations / General Synod and

(4) Parliament

As a result of the Ecclesiastical Offices (Terms of Service) Measure 2009, we must now add a fifth institutional source of ecclesiastical law

(5) the Archbishops’ Council (for Terms of Service Regulations).

History shows us how sources (1) to (4) have changed over time.  From 1662 until the 19th century, sources (1) and (2) predominated.  The Convocations were of marginal importance.  However, this situation changed radically from the mid-19th century.  With the closure of Doctors’ Commons, it is the courts which have now been marginalised as sources of ecclesiastical law.  Sources (3) and (4), by contrast, have broadened enormously.

As a result of the Church of Assembly (Powers) Act 1919 and the Synodical Government Measure 1969, sources (3) and (4) have largely, but not completely, merged.  It is in this context that we should formulate our definition of ecclesiastical law.

Professor Norman Doe draws a distinction between ‘internal church-made law and external state-made law’ (The Legal Framework of the Church of England (1996)  Clarendon Press, Oxford, p.32).  Mark Hill introduces a further distinction between ‘[ecclesiastical] laws … some imposed by the state, some made by the Church with the concurrence of the state, and others created internally by the Church’ (Ecclesiastical Law 2nd edition (1995), pp.1-2).

It is true that ecclesiastical law is now found mostly in Measures and Canons, and that these legislative instruments are ‘internal’ to the extent that they are the work of ecclesiastical bodies.  However, too much may be made of this internal / external distinction.  Both ‘internal’ and ‘external’ laws pertain to the same function, which is the administration of the Christian religion.

Thus the Marriage Act 1949 and the Chancel Repair Act 1932 were made by Parliament, not by the Church, even though passed many years after the 1919 Act.  These Acts are concerned to regulate church marriage and the repair of places of worship, both of which are ecclesiastical subjects.

In a sense, ecclesiastical law is exactly the same today as it was in the early modern period.  The Church of England remains part of the state.  Its function is the administration of the Christian religion, by Word and Sacrament.  Ecclesiastical law regulates this function.  It is therefore the counterpart of secular constitutional and administrative law.

What has changed, of course, is the attitude of the state towards religion.  This change explains the decline of the ecclesiastical courts and the rise of modern synodical government.

Function and Purpose

The original purpose of ecclesiastical law was best explained in Cawdrey’s Case (1591) 77 English Reports 1:

‘The ecclesiastical law and the temporal law have several proceedings and to several ends: the one being temporal, to inflict punishment upon body, lands or goods: the other being spiritual pro salute animae … to reform the inward [man].  [Thus] both … jurisdictions … do join in this: to have the whole man inwardly and outwardly reformed’ (p.7).

This dictum makes clear the original, presecular basis of ecclesiastical law: the theocratic assumption that the state had a responsibility for the souls of its subjects, not merely for their persons and property.  People were just as much subject to the English law regulating the salvation of their souls as to the law regulating their property. 

Though not the same as canon law, the ecclesiastical law of the presecular era shared the same overriding object as canon law, salus animarum suprema lex, the salvation of souls is the supreme law.

The Court of the Arches confirmed in the case of Breeks v Woolfrey (1838) 163 English Reports 304 that ‘touching and concerning [the] soul’s health … is the usual style and language of the proceedings of the [ecclesiastical] court’ (p.307). 

Thus the ecclesiastical law discussed by Lord Denning in his famous article ‘The Meaning of Ecclesiastical Law’ (1944) 60 Law Quarterly Review 235, and defined by him as ‘technical ecclesiastical law’ might be more aptly described as the law of the soul.  The ‘remedies’ imposed by the ecclesiastical courts were directed towards the salvation of the subject’s soul.

This explains why Lord Denning’s discussion of ecclesiastical law is so anachronistic.  Needless to say, the modern state does not accept any responsibility for the salvation of souls.  Modern criminal jurisdiction may seek to reform or rehabilitate an offender, but only in relation to society, not to save his immortal soul.  As the Court of the Arches drily observed in the case of Phillimore v Machon (1876) 1 Probate Division 481,

‘the punishment of the laity for the good of their souls by the ecclesiastical courts would not be in harmony with modern ideas’ (p.487).

The state is now concerned to regulate the relations of its subjects inter se, but not the relationship of the subject to God.  The subject’s relationship with God is regarded as a private, voluntary matter only.  For the state to regulate such a relationship is seen as a grave infringement of the subject’s ‘human rights’.

This, of course, does not allow much scope for an ecclesiastical law whose whole raison d’etre was to regulate the subject’s relationship to God.  The secularisation of state and society in the 19th century was the essential reason for the closure of Doctors’ Commons.

Secularisation notwithstanding, the Church of England remains the ecclesiastical state, constituted by law.  Lord Justice Phillimore suggested in Marshall v Graham (1907) 2 King’s Bench 112 that

‘Establishment means that the state has accepted the Church as the religious body in its opinion truly teaching the Christian faith’. 

It may be hard to see much evidence of acceptance of the Christian faith by the modern secular state.  However,  historical traces of the secular state’s acceptance of the truth of the Church of England’s doctrine are still visible in two well-known aspects of the secular constitution, the right of bishops to sit in the House of Lords, and the Protestant settlement of the Crown.

It is also true that the state continues to administer the Christian religion through the Church of England, its ecclesiastical branch.  Through this administration, the state continues to offer the Christian religion to its subjects.  The subject is, of course, free to accept or reject the Christian religion thus administered.

However, the secularisation of the state has altered the character of ecclesiastical law.   Ecclesiastical law continues to regulate the administration of the Christian religion, the process by which Christianity is offered to subjects.  However, it no longer assumes a responsibility for the soul.  The salvation of souls is no longer the supreme ecclesiastical law, or indeed any part of the ecclesiastical law. 

Does this mean that ecclesiastical law itself has lost its soul?  The Court of the Arches was, of course, correct to hold in Phillimore v Machon that ecclesiastical discipline of the laity is not realistic in the modern secular age.  Nevertheless, a difficulty remains.  The ecclesiastical law that emerged from the ruins of the old theocracy has the same function as before, but it no longer has any defined object or purpose.  It still explains how the Christian religion is administered, but no longer why it is administered.  The administration of the Christian religion becomes an end in itself, not a means to an end.

The Preparation of Church Measures

Church of England Assembly (Powers) Act 1919 (‘the Enabling Act’)

A Measure is defined by s.1(5) of the 1919 Act as ‘a legislative measure intended to receive the Royal Assent and [intended] to have effect as an Act of Parliament’.

The recital to the 1919 Act suggests that a Measure must ‘touch’ matters concerning the Church of England.  S.3(6) provides that a Measure ‘may relate to any matter concerning the Church of England’.  This wording allows a very wide scope to a Measure.

S.3(1) provides that when a Measure has been passed by the General Synod (formerly the Church Assembly)  it must be submitted to the Ecclesiastical Committee of Parliament.  This is a joint committee, comprising members of both Houses.  The Measure is submitted to the Ecclesiastical Committee by a committee of the General Synod known as the Legislative Committee.

The two committees should not be confused.  The Legislative Committee is a committee of the General Synod.  The Ecclesiastical Committee is a committee of Parliament.

The Ecclesiastical Committee is required to consider the Measure, and to prepare a report to Parliament on

‘the nature and legal effect of the Measure and its [the Ecclesiastical  Committee’s] views as to the expediency thereof, especially with relation to the constitutional rights of all [Her] Majesty’s subjects’ (s.3(3)).

The report must not be presented to Parliament until the General Synod’s Legislative Committee has seen it and indicated that it wishes the report to be presented (s.3(4)).  The Legislative Committee may choose to withdraw the Measure before the report is presented to Parliament, either of its own volition or at the General Synod’s direction (s.3(5)).  However, the Legislative Committee may not vary the Measure.

S.4 provides that, when the report on the Measure is presented to Parliament, the Measure is subject to a resolution of each House directing that it be presented to the Monarch for the Royal Assent.

The effect of s.4 is that Parliament may either approve or reject a Measure, but may not amend it.  The Measure is presented to Monarch ‘in the form laid before Parliament’, which excludes any power of amendment. 

The Chairman of Committees of the House of Lords and the Chairman of Ways and Means of the House of Commons (the Deputy Speaker) may by agreement divide a single Measure into two or more separate Measures, but they may not alter the substance of the Measure.

S.4 further provides that the Royal Assent to a Measure is signified in the same manner as to an Act of Parliament.  Furthermore a Measure which has received the Royal Assent ‘shall have the force and effect of an Act of Parliament’.

Professor Norman Doe takes a very exalted view of the General Synod’s legislative function under the 1919 Act.  He suggests that the General Synod may

‘create for the Church in the form of a Measure any law it pleases and, with the exception of the General Synod itself and … Parliament, no body … may legally deny a synodical Measure its status as law’ (The Legal Framework of the Church of England (1996) Clarendon Press, Oxford, p.56).


‘The present legal regime [in the 1919 Act] enables the General Synod to share in Parliament’s legislative supremacy in ecclesiastical matters’ (p.58).

More precisely, the General Synod

‘is an inferior legislator under the secular constitution, empowered to share in the parliamentary competence to create legislation for ecclesiastical matters …’ (p.59).

It is argued that this assessment overestimates the General Synod’s legislative function and blurs the critical distinction between the General Synod and Parliament.  The provisons of the 1919 Act just described make clear that a Measure passed by the General Synod has no legislative force whatever, unless and until it receives the approval of both Houses of Parliament and the Royal Assent.

It is true that a Measure becomes a Measure when it is passed by the General Synod, but it does not thereby become a law.  When s.1(5) of the 1919 Act defines a Measure as ‘legislative’, this means that a Measure is legislative, as distinct from administrative, deliberative or judicial, in character.  Without the required parliamentary and royal approval, a Measure has no more legal significance than a public or private bill presented to Parliament.  Like a bill, it is merely draft legislation.

Thus it is argued that the General Synod cannot legislate by Measure.  Only Parliament legislates by Measure.  The General Synod, acting through its Legislative Committee, has the right under s.3(3) and (4) to prepare Measures for Parliament.  The Ecclesiastical Committee cannot refuse to present a Measure to Parliament.  A Measure, unlike a bill, cannot be amended in Parliament.

The legislative character of a Measure was made clear by Lord Hugh Cecil in the House of Commons debate on the bill which became the 1919 Act.  He suggested that the Act introduced ‘a short way to obtaining an Act of Parliament’ (Official Report, volume 120, column 856).

Later he suggested that the 1919 Act was ‘to facilitate legislation affecting the Church by allowing it to pass through Parliament without all the forms of Parliament which are now insisted upon’ (column 1869).  In other words, the 1919 Act introduced a ‘fast-track’ procedure for ecclesiastical legislation.

It must be acknowledged that the language of the 1919 Act is rather convoluted.  The recital to the Act records that

‘subject to the control and authority of [Parliament] powers in regard to legislation touching matters concerning the Church of England shall be conferred on the [General Synod]’.

Powers in regard to legislation touching matters concerning …

Perhaps the recital would have been better worded as follows:

‘To confer on the [General Synod] the right to prepare and submit to Parliament draft legislation on matters concerning the Church of England’.  The definition of a Measure in s.1(5) could have been ‘a draft legislative enactment / instrument prepared in accordance with the provisions of this Act’.

The status of Church of England Measures was discussed in the case of R v Legislative Committee of the Church Assembly ex parte Haynes-Smith (1928) 1 King’s Bench 411.

The High Court decided that the function of the Church Assembly and the Legislative Committee is ‘to set in motion in a preliminary way proposals for legislation which may or may not mature into legislation’ (p.416).  The Church Assembly was ‘a deliberative Assembly, the function of which … is to deal with the earlier stages of that which, if the whole programme is carried out to the end, may become a statute’.  The ‘intention and effect’ of the 1919 Act is ‘to authorize the [Church] Assembly, acting through and by means of its Legislative Committee, to promote legislation’ (p.417).

This analysis supports the view that Parliament alone legislates by Measure. 

Doe suggests that ‘Measures may be conceived strictly as a species of secondary or subordinate legislation, which, to be valid, must be approved by the Queen in Parliament’ (op.cit.,p.59).  However, this view is not supported by the wording of s.4 of the 1919 Act, which makes clear that a Measure has the same force and effect of an Act of Parliament.  The Human Rights Act 1998, which was of course enacted after Doe wrote, affirms that Church of England Measures are indeed ‘primary legislation’ (s.21(1)).

Relinquishment and Relief: The Clerical Disabilities Act 1870

The Legal Office of the Church of England has issued a paper offering some reflections on the establishment of the Personal Ordinariate of Our Lady of Walsingham by Pope Benedict XVI (GS Misc 979, January 2011).

The paper suggests that ‘It is desirable that clergy leaving the Church of England [to join the Ordinariate] should relinquish their orders under the Clerical Disabilities Act 1870’

This suggestion is apparently made for the benefit of the Ordinariate clergy themselves:

‘Unless they take advantage of the procedure under the 1870 Act, they will, as a matter of English law, continue to be subject to the same jurisdiction as any other clerk in holy orders of the Church of England and therefore subject to the discipline of the Church of England (including the duty of [canonical] obedience) … as well as that of the Roman Catholic Church’ (emphasis supplied).

The reference to the Act of 1870 may not be quite accurate.  Clergy do not exactly relinquish their orders under that Act.  They relinquish ‘all rights, privileges, advantages and exemptions of the office [of priest or deacon]’ in the Church of England, as by law belong to that office (s.3(1), schedule 2).

The 1662 Ordinal provides that deacons and priests are ordained ‘in the Church of God’, but the 1870 Act refers only to the Church of England, and to the law of England.   Thus the clergyman only relinquishes the legal effects of his orders, not his orders per se.

The stated purpose of the 1870 Act is the ‘relief’ of clergy (subtitle).  The effect of relinquishment, as the Legal Office says, is that a clergyman is ‘discharged and freed from all disabilities, restraints and prohibitions … [attaching] to the office of minister in the Church of England and from all [ecclesiastical] jurisdiction’ (s.4).

Thus, on the positive side, the 1870 Act enabled an ex-clergyman to hold offices or engage in activities which were then forbidden to the clergy (schedule 1).  For example, the 1870 Act enabled an ex-clergyman to sit in the House of Commons.  On the negative side, it also conferred protection from clergy discipline.

The ‘relief’ promised by the 1870 Act was directed at Canon 76 of 1603, which was then in force.  Canon 76 provided that no deacon or priest should ‘voluntarily relinquish [his orders] nor … use himself … as a layman, upon pain of excommunication’. 

However, Canon 76 was replaced in the 1960s by Canon C1(2) of the revised Canons.  Canon C1(2) is permissive in character.  It provides that ‘a minister may … by legal process [i.e under the 1870 Act] voluntarily relinquish the exercise of his orders’.  This wording suggests that such a course is for the individual clergyman to decide.  There is no threat of excommunication.  Canon C1(2) also states explicitly what is implicit in the wording of the 1870 Act, that an ordained minister ‘can [n]ever be divested of the character of his order’. 

Ordinariate clergy, of course, do not wish to be ‘divested’ of their orders or to ‘use themselves as laymen’.  On the contrary, they wish to continue their priestly ministry, but in the Roman Catholic Church rather than in the Church of England.

Thus Ordinariate clergy would only need the protection of the 1870 Act if the Church of England authorities decided to discipline them.  

The question is, therefore, whether it is a disciplinary offence for a clergyman to become a Roman Catholic and work as a Roman Catholic priest.

In the case of Barnes v Shore (1846) 163 English Reports 1074, the Reverend Mr Shore was disciplined by the ecclesiastical court for officiating in a dissenting chapel, contrary to his bishop’s instructions. 

The Court of the Arches held that ‘a clergyman can[not] divest himself at pleasure of his orders’ (p.1077),  having been ordained and promised canonical obedience (of his own free will).

However, there are two distinctions between the Reverend Mr Shore and the clergy of the Ordinariate:

(1) Mr Shore was officiating in a dissenting Protestant Church that did not have an episcopally ordained ministry, hence the Court’s reference to his ‘divesting’ himself of his orders.  By acting as if he was a dissenting minister, he was acting as if he was not an ordained priest.

The Roman Catholic Church, of course, does have an episcopally ordained ministry.  An Anglican priest who joins the Ordinariate will not therefore be ‘divesting himself’ of his orders.  As Lord Brougham noted, ‘Our Church recognises the Roman Catholic … ordination … on account of the Apostolic Succession’ (R v Millis (1844) 8 English Reports 841 at p.916).

(2) The report of the case records that Mr Shore had officiated against the express instruction of his bishop.  He was therefore guilty of disobedience.  However, there is no suggestion in the Legal Office’s paper (or from any other source) that Church of England bishops have forbidden their clergy to join the Ordinariate, even though fully aware of their intention to do so. 

It is therefore hard to argue that Ordinariate clergy could be disciplined for disobedience under s.8(1) of the Clergy Discipline Measure 2003.

S.8(1) of the 2003 Measure provides that clergy may be disciplined for ‘neglect or inefficiency in the performance of the duties of … office’.  However, if an Ordinariate priest has resigned all his ecclesiastical offices before joining the Ordinariate he could not be disciplined on this ground, since he would have no official duties to neglect.

S.29 of the 2003 Measure provides that it is misconduct if a clergyman ‘performs in the Church of England any function’ that he has been forbidden to perform as a result of previous disciplinary proceedings.  On its wording, this restriction could not apply to functions performed in the Roman Catholic Church.  Moreover, it would not apply to an Ordinariate priest who has not previously been subject to disciplinary proceedings.

Thus it seems very unlikely that an Ordinariate priest could be at risk of proceedings under the 2003 Measure.  Even if a complaint were made it would still have to have ‘sufficient substance’ to justify further action (s.11(1)).  The bishop also has a power to order no further action on a complaint (s.12(1)).

There are, of course, considerable differences of religious belief and practice between the Roman Catholic Church and the Church of England.  Perhaps an Ordinariate priest might be liable to proceedings under the Ecclesiastical Jurisdiction Measure 1963 for ‘an offence against the laws ecclesiastical involving matters of doctrine, ritual or ceremonial’ (s.14(1)). 

However, the risk of proceedings under the 1963 Measure is also very remote.  No such proceedings have ever been brought since the 1963 Measure was passed.  Even if proceedings were commenced, the 1963 Measure provides that proceedings may be dismissed if there are unspecified ‘extenuating circumstances’, or if further proceedings ‘would not be in the interests of the Church of England’ (s.42(7)).

It should be fairly obvious that disciplinary proceedings against Ordinariate clergy simply for joining the Ordinariate would not be in the Church of England’s interests. 

No sentence or penalty could be effective against an Ordinariate priest who has already resigned and has no intention of seeking office in the Church of England in the future.  It is arguable that any disciplinary proceedings would conflict with the ecumenical duty imposed by Canon A8, which obliges all Church members and authorities ‘to do their utmost not only to avoid occasions of [sectarian] strife, but also to seek in penitence and brotherly charity to heal such divisions’.

Last, but not least, any disciplinary action would raise ‘human rights’ issues.  An Ordinariate priest might well argue that he would not receive a fair trial in any ecclesiastical court or tribunal, since all the judges are required to be communicant Anglicans.  It is also arguable that disciplinary action against a priest who has already left the Church of England is an unjustified infringement of his right to manifest his religion.

Doing Justice to Faculties

A faculty is a permission to do something which there is no right to do.  A faculty is not an order to do something.  A lawful order or duty to do something necessarily confers the right to do it.  A person who has the right to do something does not need permission to do it.  A faculty confers or creates a legal right that did not previously exist.

Yet there is much confusion over the nature of an ecclesiastical ‘faculty’.  A licence and a faculty are really the same thing.  The terms are used interchangeably in the older ecclesiastical case reports.  Yet in modern ecclesiastical law a permission by a court to deal with a church or churchyard is always described as a ‘faculty’, while all other permissions, whether to marry in church, to officiate as a minister, to reside out of the official residence, or to engage in a secular occupation, are described as ‘licences’.  This insinuates the idea that faculties and licences are different.

Statute law seems to misuse the word ‘faculty’ on at least two occasions:

(1) The Faculty Jurisdiction Measure 1964, s.1.  The ‘faculty’ referred to here is actually a vesting order.  S.1 empowers the consistory court to make an order, though described as a ‘faculty’, vesting part of a church building in the freeholder of the church.

(2) The Care of Churches and Ecclesiastical Jurisdiction Measure 1991, s.12(2).  The ‘faculty’ referred to in this subsection is really an order, backed by a threat.  It is a compulsory faculty.  If the work ‘permitted’ by the faculty is not carried out by the petitioner, the archdeacon will carry it out at the petitioner’s expense. 

The grant or refusal of a faculty is an administrative rather than a judicial function.  It does not engage any legal right or legal wrong.

Norman Doe acknowledges that ‘In many respects, the faculty system itself contains a strong administrative element similar to functions performed by local planning authorities’ (The Legal Framework of the Church of England 1996, p.143).  Yet ecclesiastical judges have remarkable difficulty appreciating the distinction between the administrative and the judicial function.

The case of St. Mary’s, Barnes (1982) 1 Weekly Law Reports 531 concerned a parish which wished to build a new parish church to replace one that had burned down.

The faculty petition was duly presented, but was referred to the bishop, not the chancellor.  The bishop granted the faculty without consulting the chancellor.  The chancellor was clearly very annoyed at not being consulted.  His principal objection to the bishop’s involvement was constitutional.  The bishop’s action ‘involved a breach of the constitutional principle of the separation of the functions of the legislative, executive and judiciary and a return to the absolutism of the middle ages condemned in this country since at least the middle of the 17th century’ (p.532).

The chancellor cited no authority in support of this supposed constitutional principle, which is associated with the American constitution rather than the British.  The parishioners in this case had simply asked for permission to rebuild their church, and the bishop had agreed.  It was a little far-fetched to describe such action as ‘a return to the absolutism of the middle ages’.  The action was consistent with the bishop’s cure of souls and pastoral oversight.

Moreover the chancellor failed to appreciate that the case did not involve any judicial function, merely an administrative one.  He held that faculty petitions should be dealt with ‘so that justice is done’ (p.532).  He lamented that, because of the reference to the bishop ‘no one can say that justice can manifestly be seen to have been done’ (p.534).

This prompts the question ‘justice to/for whom?’.  Justice must be done to a person or persons.  Nobody’s legal rights were at stake in the case, and no remedy or penalty was sought for or against anyone.  No injustice was alleged.  The petitioners were merely seeking permission to do something which they lacked the right to do.

It is argued that a faculty case does not require the court or other licensing authority to do justice, but rather to act justly.  A faculty cannot override a legal right.  If an authority purports to grant a faculty which infringes a legal right, it is exceeding its jurisdiction and the faculty is illegal.  The authority must respect the limits of its jurisdiction.

The faculty jurisdiction must also be exercised justly within its legal limits.  It would obviously be improper for the licensing authority to yield to improper pressure to grant or refuse a faculty, or to appear to be biased in some way.  The authority should consider all relevant factors and disregard irrelevant ones.  Reasons should be given for any decision.

In other words, the faculty jurisdiction should be exercised in accordance with the same well-established principles of administrative law that govern the exercise of a discretion.  However, the exercise of a discretion is quite different from the judicial function of doing justice.

The confusion in St. Mary’s, Barnes about the nature of the faculty jurisdiction has deep roots.  Peter Winckworth’s book A Verification of the Faculty Jurisdiction (1953) helps traces the confusion. 

The faculty jurisdiction first became prominent in the 19th century as a device for combating illegal ‘ritualism’.  Winckworth notes that

‘the Archbishops and bishops … considered that, by more frequent recourse to the faculty jurisdiction, the ritualism … might be checked without the offending clergyman having to be sent to gaol [a reference to the Public Worship Regulation Act 1874, which provided for this draconian step] … the attack [on ritualism] was to be shifted from bringing a criminal suit … to bringing a civil suit for a faculty to remove the offending ornament …’ (p.33).

This account suggests that the faculty jurisdiction was used as a means of enforcing liturgical discipline, rather than as a system of granting licences.  If the vicar indulged in controversial ritualistic practices, the Church authorities would not commence disciplinary action that would risk making a martyr of him.  Instead they would issue a faculty to the churchwardens, ‘permitting’ them to remove the ornaments and decorations involved, and so deprive the vicar of the opportunity of ritualism.

These ‘faculties,’ issued in the late 19th and early 20th centuries to oppose ritualism, were not really permissions so much as disguised orders to do, or refrain from doing, certain acts.

Wincworth relates that the so-called ‘chancellors’ report’ of 1913, which laid the foundations of the modern faculty jurisdiction, stated that ‘every application for a faculty is a cause in a court of law which may become contentious and … has to be dealt with … on judicial principles and by judicial methods’ (p.8).

This perpetuated the confusion that had developed in the later 19th century.  It may be correct to speak of a ’cause of faculty’ , but this may be confused with a cause of action.  A cause of action concerns a right or wrong.  A person has a cause of action if his legal rights have been infringed in some way by another’s wrong.  If a person requires a faculty he cannot have a cause of action.  If a person has a cause of action he requires not a faculty but a remedy.  A cause of faculty is based upon a need or a wish, not a right or a wrong.

It is true, of course, that faculty cases can be ‘contentious’, the subject of dispute.  An application for a faculty may be opposed (though most faculties are unopposed).  To that extent they may resemble contested causes of action.

However, even a contentious faculty case still does not involve legal rights or wrongs, merely differences of opinion and sentiment.  One party may think that a proposed stained-glass window is fine and beautiful and an aid to religious devotion, another may think it ugly and mediocre and an unnecessary expense.  The resolution of such a dispute is a pastoral rather than a judicial exercise.

As Doe observed, a faculty, being a permission to deal with land and buildings, resembles secular planning permission.  The law views the grant or refusal of planning permission as an administrative, not a judicial, function.  This is made clear by two cases, B Johnson & Co v Minister of Health (1947) 2 All England Reports 395 at 399, and R v Secretary of State for the Environment ex parte Alconbury (2001) 2 Weekly Law Reports 1389.

It is true that a faculty / permission, once it has been granted, prima facie confers or creates a legal right.  Thus the revocation of a faculty, as distinct from the original grant, may be a judicial function, because it deprives a person of a legal right.

The Clergy Discipline Measure 2003, s.8(2) and the Pluralities Act 1838, s.98 both provide that licences to officiate may be revoked only after a judicial process.  However, when exercising the faculty jurisdiction, Church courts tend to exclude any legal right by granting faculties subject to ‘further order’.  This means that the faculty can be revoked, or its terms limited, should circumstances change, but without infringement of a legal right.

Ministry and Governance

The English ecclesiastical state, or Church, comprises two functions or powers:

(1)  the ministry of Word and Sacrament, which is unique to the Church and

(2)  a power of governance, which all states and organisations must have in order to exist.

The power of governance derives from the Monarch’s supreme authority over the Church.  Sir Matthew Hale confirms that

‘although … annexed to … ecclesiastical offices, yet … jurisdiction ecclesiastical in foro exteriori is derived from the Crown of England.  For there is no external jurisdiction, whether ecclesiastical or civil, within this realm, but what is derived from the Crown’ (History of the Common Law (1713), p.30).

Thus a new bishop acquires the power of governance when his appointment is confirmed, not when he is consecrated (ordained).  Confirmation is effected by the Vicar-General, in obedience to the royal mandate to the Archbishop. By the act of confirmation ‘the judge commits to the bishop elected the care, governance and administration of the spiritualties’, even if the bishop is not yet consecrated (Phillimore Ecclesiastical Law, 2nd edition 1895, pp.38, 40: s.4 Appointment of Bishops Act 1533).

However, authority to administer the divine Word and Sacraments comes from episcopal ordination.  Article 37 affirms that ‘we give not to our Princes the ministering of God’s Word or of the Sacraments’.  The Preface to the Ordinal affirms that ministry requires episcopal ordination.

Ordination is therefore the link between ministry and governance.  The Monarch may nominate bishops, and lay patrons may nominate parish priests, but ordination is still required for the nominated persons to be constituted bishops or priests in the first place.  An episcopal ‘ordination’ of some sort is also required for constitution as a lay minister, such as a lay reader (cf. Canon E5(5)).

What is Ordination?

Article 25 denies that orders are a sacrament, but suggests that they are one of the ‘states (status) of life allowed (probati) in the Scriptures’.  The 1662 ordination services are separate from the Book of Common Prayer (‘BCP’) and are collectively entitled ‘the Form and Manner of making, ordaining and consecrating of Bishops, Priests and Deacons’ (the Ordinal). 

The phrase ‘Form and Manner’ may be significant.  The full title of the BCP refers to the ‘rites and ceremonies of the Church’, but the Ordinal does not refer to ordination as a rite or ceremony. 

Despite the Ordinal’s title, ordination clearly does involve a religious rite and ceremony, the laying on of hands with invocation of the Holy Spirit.  Article 36 also refers to the ‘rites’ of the Ordinal.  However, the rite and ceremony of ordination must be distinguished from the authority for conferring ordination in the first place.

Article 34 affirms the right of each particular Church to ‘ordain, change and abolish, ceremonies or rites of the Church ordained only by man’s authority’.  This includes the ordination rite (laying on of hands) but does not explain the authority for conferring ordination.

This authority is explained by Article 23, not Article 34.  Article 23 provides that a minister of Word and Sacrament must be ‘lawfully called and sent … by men who have publick authority given unto them in the Congregation’.

Thus ordination is

(1) the calling and sending of a minister of Word and Sacrament (Article 23)

(2) which is effected in the Church of England by episcopal laying on of hands with invocation of the Holy Spirit (Article 34 and the Ordinal).

However, Article 23 and Article 34 make clear between them that ordination does not necessarily require either

(1) the laying on of hands (perhaps not even the invocation of the Holy Spirit) or

(2) the intervention of a bishop.

The essential requirement is that the calling and sending of any minister in the Christian Church must have proper authority (Article 23).  The method of effecting or completing this calling and sending, including the structure of ministry itself, is a matter for each particular Church to decide for itself (Article 34).  Different Churches may therefore have different structures of ministry.

This makes clear that the rite and ceremony of ordination by itself will not make an ordination.  The ordaining minister must have proper authority under Article 23.  A ‘rogue’ bishop might purport to ordain a priest, but this would not be a true ordination.  Even though the correct rite and ceremony be used, the ordination is a nullity, because the rogue bishop lacks the ‘publick authority’ to perform it.

This point is reinforced by the Preface to the Ordinal, which recites that candidates for holy orders must be ‘approved and admitted thereunto by lawful authority’.

The freedom of particular Churches to decide their own ministerial structure may not be unlimited.  In a commentary on the 39 Articles, E.J Bicknell points out that the word ‘called’ in Article 23 is rendered cooptati in the Latin text.  From this he concludes that Article 23 requires that those with the power to call and send new ministers must themselves be ministers of Word and Sacrament, as distinct from secular officials (3rd edition (1955), p.321).  The ministry must therefore be self-selecting and self-perpetuating.

Thus ordination is an act of governance, which is effected by a prescribed rite and ceremony.  However, it may only be performed by one who is himself ordained.

Bicknell’s conclusion on Article 23 is supported by Article 37 (quoted earlier).  If the ministry were not self-selecting and self-perpetuating, it is hard to see any justification for denying the power of ministry to the secular ruler.  The exclusive structure of the ministry preserves its integrity and its unique function.  It limits the power of governance.  If it lost its exclusive structure, the ministry would be absorbed and dissolved into the power of governance.

Acts of Ministry and Acts of Governance

An act of governance which does not involve the ministry does not require ordination, nor does it necessarily require episcopal authority at all.  However, our discussion of ordination shows that ecclesiastical acts cannot be clearly divided into acts of ministry and acts of governance.  Ordination is an act of governance which is effected or completed by an act of ministry.

The marriage service, unlike the ordination services, is included in the BCP.  Article 25 holds that marriage is not a sacrament any more than ordination.  Marriage is obviously not particular to the Christian Church, and early Christians would have been married according to Jewish or Roman ceremonies.  The solemnisation of civil marriage is, of course, an exercise of the power of secular governance.

Thus the solemnisation of marriage, like the licence or publication of banns which precedes it, is an act of governance, even though performed within the context of a ministry of the Word (and the Sacrament, if Holy Communion is administered during the marriage service).  It also includes the rite of exchanging a ring (which is of pagan origin).

Acts of governance are quite often performed in the context of an act of ministry, i.e prayers, Bible readings and the Eucharist.  It is necessary to distinguish between the two.  Lord Chief Justice Coleridge observed of the consecration of land that

‘a practice has grown up of accompanying the ceremony of consecration with certain suitable and seemly prayers: but that is not the consecration itself.  Consecration is effected by the decree of a competent ecclesiastical court …’ (Wood v Burial Board of Headingley (1892) 1 Queen’s Bench 713 at 725).

Dependence of Ministry on Governance

Although it has an exclusive structure, the ministry is not free-standing.  It cannot exist without some power of governance, any more than secular institutions.  By itself, the ministry has no more than a devolved power.  Ordination is an act of governance, so it cannot be effected without the power of governance, the ‘publick authority’ required by Article 23.

Priests, deacons and lay ministers are ‘called and sent’ by the bishop, but who calls and sends the bishop?  A bishop is ordained (consecrated) by the Archbishop, with the assistance of other bishops.  However, the Ordinal makes clear that the Archbishop’s act is performed in obedience to the mandate of the Crown, which he has no discretion to refuse.  The procedure for appointing bishops is laid down by the Act of 1533.

It is true that a new bishop is subject to an ‘examination’ during his ordination service, just as priests are, but this is ‘to the end that the congregation present may have a trial, and bear witness, how you be minded to behave yourself in the Church of God’ (1662 Ordinal).  In other words, the purpose of the examination is merely to demonstrate the wisdom of the Crown’s choice.

Moreover, the power of governance ultimately determines the entire function of the ministry.  The ministry is concerned with Word and Sacrament, but what is that Word?  What is the Sacrament?  Only the power of governance can answer these questions.

Thus the celebration of the Eucharist is an act of ministry that can only be performed by an ordained minister (a priest) (Canon B12).  However, the form of service used by the minister is an act of governance, not an act of ministry.  And the form of service determines what the Eucharist is, what the Church understands it to be.

In the modern Church of England, forms of service are regulated by the Worship and Doctrine Measure 1974 and the canons promulged under the authority of that Measure.  The BCP was formerly authorised by the Act of Uniformity 1662.  Previous versions of the BCP were authorised by previous Acts of Parliament.

The Necessity of Modern Ecclesiastical Governance

The power of governance changed radically in the late modern era.  In England, the Monarch retains supreme authority over the Church, but divine authority is no longer claimed for this.  The modern canon concerning the royal supremacy begins ‘We acknowledge’, not ‘We believe’ (canon A7).  Even this only applies in England.  Modern secular authority does not accept divine law, let alone a duty to enforce it.

Phillimore describes the development of the modern Anglican Communion in territories that were then mostly British colonies:

‘Diocesan and provincial synods became a matter of necessity to insure harmonious action, and these were constituted in the course of a few years by independent and almost simultaneous efforts in America, Australia, New Zealand and Africa’ (op.cit p.1776).

As the state became secularised and repudiated its responsibility for the administration of religion, this responsibility was assumed by individuals on a voluntary basis, as Phillimore says, as ‘a matter of necessity’.  Thus modern ‘synodical government’ emerged.

Under this new secular regime, the role of the state was limited to the enforcement of voluntarily agreed Church rules, on the basis of contract or trust law.  The Church was thereby reduced from a God-given public state to a merely private association of individuals.

This loss of status may seem unimportant, or even positively desirable.  It is said to give ‘freedom’ to the Church.  However, it carries the uncomfortable corollary that the Divine Word and Sacraments are also reduced to the status of a private matter, something agreed between the members of the association.

The Anglican experience is not unprecedented.   Congregationalist Churches, such as Methodists and Baptists, predated the modern Anglican system of synodical government, and, like synodical government, were a reaction against secularisation.

Articles 19 and 23 do refer to the Church as a ‘congregation’, but of course these references are made in the context of a strong emphasis on the ecclesiastical authority of the secular ruler.

Nor is there anything congregationalist about modern synodical government.  The synodical structure was formed under tractarian influence.  It was formed in order to protect the ordained ministry, and so to prevent the Anglican Church from becoming congregationalist. 

With this purpose, the synodical structure is sensitively organised, or moulded, around the structure of the ordained ministry, which in turn is derived from the late mediaeval Catholic Church.  Though created in the 19th century, synodical government is sometimes given a mediaeval veneer, so as to harmonise with the mediaeval ministry.  Thus rules become ‘canons’, committees and assemblies become ‘synods’.

Acts of governance require the consent of the ordained ministry, through its representatives.  Bishops and lesser clergy are generally represented separately, so acts of governance will require the consent of both groups of ministers.  Episcopal primacy within the ministry is scrupulously respected. 

So, far from being congregationalist, this tractarian-inspired system of governance is strongly clericalist.  Bishops and clergy may enjoy greater power of governance under the modern system than under the old theocracy that it replaced.  The ordained ministry is largely self-governing, though its power of governance is limited, by being made subject to the consent of lay representatives.   Synodical government may therefore be described as constitutional clericalism.

Individual participation in modern Anglican governance is based on association with the ministry.  The right of clergy to participate derives from their particular office within the Church, not directly from their ordination, even if the office is a mere permission to officiate on a temporary or occasional basis (as in the case of a retired priest). 

Likewise the right of the laity to participate in governance depends on their association with the ministry.  Association with the ministry derives from such acts as attendance at worship and reception of holy communion.  It does not derive directly from baptism.

Thus the right of clergy and laity to participate in the Church’s governance derives equally from their association with its ministry, albeit the test of association is different for clergy and laity.  However, this does not explain how and why a person’s association with ministry should confer on him or her the right to determine what that ministry is.

So we are left with Phillimore’s doctrine of necessity.  The ministry requires a power of governance of some sort in order to exist.  In a secular state, nobody can claim a better right to determine the function of the Church’s ministry than its own clergy and lay worshippers.  If they did not exercise the power of governance, nobody else could or would, and no form of ministry could continue.  

Separation of Powers

The classic doctrine of the separation of powers (legislative, executive and judicial) is rather secular in character.  It takes no account of the ecclesiastical state, i.e the administration of the Christian religion by the state. 

The doctrine is not incompatible with the ecclesiastical state, since the ecclesiastical state shares the constitutional powers of the secular state but exercises them for a different purpose.  Indeed the doctrine has been incorporated into Roman Catholic law to a limited extent (cf canon 391 of the Code of Canon Law 1983).  However, the doctrine can only apply to the ecclesiastical power of governance, not to the unique ecclesiastical ministry of Word and Sacrament.

The Roman Catholic Church and International Law

(All papal documents, and the Code of Canon Law 1983, can be read on the, the official website of the Holy See.)

Pope Leo XIII explained the status of the Catholic Church and the Holy See in international law in his encyclical Immortale Dei (1885)

The Catholic Church is a perfect society under the sovereign authority of the Holy See.  A perfect society is defined as ‘perfect in its nature and in its title to possess … all needful provision for its maintenance and action’ (para 10).

A perfect society must be distinguished from a mere private association whose status as a society depends on ‘the concession and favour of the [secular] government’ (para 27).

The Catholic Church’s need to be constituted as a perfect society, and not as a mere private association, is explained by the response of the Apostles to the Jewish authorities which persecuted them for preaching the Gospel: ‘we must obey God rather than men’ (Acts 5, 29, quoted at para 12).

Papal sovereignty over the Catholic Church comes from divine law, from ‘The office uniquely committed by the Lord to Peter’ (Code of Canon Law 1983, canon 331).  The Holy See and the Catholic Church both enjoy juridical personality by divine law (canon 113.1).

However, although papal sovereignty comes from divine law it is also recognised in secular international law:  ‘in the making of treaties … sending and receiving ambassadors … [secular states] have been wont to treat with the Church as with a supreme and legitimate power’ (para 12).

The loss of the Papal States 15 years earlier did not affect the Holy See’s sovereignty over the Church.  The Papal States, like the Vatican City State today, were a separate ‘civil sovereignty’, the purpose of which was to safeguard papal sovereignty over the Church (para 12).

Thus even if the Pope were to lose his sovereignty of the Vatican, his sovereignty over the Church would continue, just as it continued after the loss of the Papal States.  Moreover, secular states recognised the Pope’s sovereignty over the Church by maintaining diplomatic relations with the Holy See after 1870, notwithstanding the loss of its territorial sovereignty.

The Vatican City State was constituted by the Lateran Treaty 1929, so the Pope again has two sovereignties, just as he had before 1870.  Diplomatic representatives are accredited to the Holy See, not to the Vatican.

The Pope exercises his sovereignty with the assistance of three agencies:

(1) the Roman Curia (canon 360)

(2) papal legates (nuncios)

(3) the College of Cardinals.

The Curia acts in the Pope’s name and on his authority.  Hence references in the 1983 Code to the Holy See / Apostolic See include the Curia (canon 361).  The present structure of the Curia dates from the late mediaeval and tridentine eras (Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, pp.293-4).

Within the Curia, the Secretariat of State is responsible for diplomatic relations with secular states and international agencies: see Pope John Paul II, Pastor Bonus (Apostolic Constitution of 1988), Articles 39-47.

Papal legates are not part of the Curia but they assist the Pope in his dealings both with secular states and local Churches.  Thus the office of papal legate or nuncio resembles an unusual combination of ambassador and colonial governor (canons 362-7).  It is at the same time both diplomatic and pastoral.  (See also Pope Paul VI, Sollicitudo Omnium Ecclesiarum, an Apostolic Letter of 1969, on the duties on papal representatives.)

Like the Roman Curia, the system of legates and permanent nunciatures dates from the tridentine era, and originally had the function of implementing the decrees of the Council of Trent.  Recognition of papal diplomats in international law dates from the Congress of Vienna, and was affirmed by the Vienna Convention of 1961  (Text and Commentary, p.301).

Legates continue in office during a vacancy in the Holy See (canon 367).

The old rule was that the Holy See only appointed a nuncio to a Catholic state, where the nuncio was ex officio the head or dean of the diplomatic corps in that country.  Papal representatives to non-Catholic states were merely pro-nuncios.  This rule was abolished in 1994, so now all papal representatives to  states are nuncios (Eileen Denza, Diplomatic Law (3rd edition 2008, OUP, Oxford, p.111).

However, the Holy See remains proud of its special sovereignty.  It does not accept an ambassador who is also accredited to the Republic of Italy (Denza, Diplomatic Law p.30).  Thus states may not economise by employing the same ambassador to represent them on both sides of the Tiber.

If a papal representative is appointed only to a local Church and not to the local secular state, he is called an Apostolic Delegate, not a nuncio.

The College of Cardinals, of course, exercises sovereignty during a vacancy in the Holy See (canon 359).  The Pope may appoint an individual cardinal as special legate (legatus a latere, meaning sent from beside the Pope).  The 1983 Code suggests that special cardinal-legates are appointed only for pastoral rather than diplomatic matters (cf canon 358).

The 1983 Code makes clear that the Pope is judged by no one, and that any judicial proceedings against him are a nullity (canons 1404, 1406).  Although the 1983 Code applies only to the internal law of the Church, these provisions indicate that the Pope claims the same immunity as heads of state enjoy in international law (Text and Commentary, p.951).

However, the officials of secular states do not enjoy the same immunity from the Holy See’s jurisdiction, if they are Catholics.  As Catholics, they are subject to papal sovereignty.

The 1983 Code alludes to this point when it provides that the Pope personally exercises jurisdiction in cases concerning heads of state (canon 1405).  This, of course, indicates that Catholic heads of state do not enjoy immunity from the Pope’s jurisdiction.

The special status of the Holy See and the Catholic Church in international law is important to any comparative study of ecclesiastical governance.  As a commentator noted ‘non-Catholic Churches … do not claim an international juristic personality’ (H.E Cardinale, The Holy See and the International Order (1976, Macmillan, p.91).  The Catholic status is unique.

The Church of England is clearly not an autonomous ‘perfect society’.  It is merely one part of a perfect society, being the ecclesiastical branch of the English state.  It might therefore be more appropriate to compare Roman Catholic law with English law as a whole, not just with that part of English law that regulates the Church of England.

The Church of Scotland claims a God-given  independence from the secular state, but this is limited to ‘ matters spiritual’ (Article 4 of the Declaratory Articles scheduled to the Church of Scotland Act 1921).  The secular state exercises jurisdiction over civil matters.

Thus the Church of Scotland cannot be a perfect society, since the jurisdiction of a perfect society is not limited, but extends to all matters of governance, whether spiritual or secular.  The tension between spiritual and secular jurisdiction in Scotland was examined by the House of Lords in the case of Percy v Church of Scotland Board of National Mission (2005) UKHL 37.

There is a superficial resemblance between the governance of the Roman Catholic Church and that of Anglican Churches outside England (e.g the Church in Wales) and congregationalist Churches such as Methodists and Baptists.  However, these other Churches are not perfect societies or independent of the states in which they exist.  They are, as Leo XIII implied, private associations whose status as such depends on ‘the concession and favour of the [secular] government’.  They receive their autonomy from the secular state itself, usually through the agency of contract or trust law, or by special legislation, out of respect for the ‘human rights’ of their members.

R v Dibdin

(1907) Probate 57 and 101

This once-famous case concerned the Deceased Wife’s Sister’s Marriage Act 1907.  The 1907 Act permitted a man to marry his deceased wife’s sister (‘DWS’), and retrospectively validated any marriages with a DWS contracted before the Act came into force.  Moreover the Act permitted such marriages to be solemnised in church.

The religious difficulty with the Act was that an earlier Act, passed during the reign of Henry VIII, not only forbade marriage with a DWS, but described such a marriage as ‘against the law of God’ (p.79).  The doctrine of the Church of England held that marriage to a DWS contravened the ‘Levitical laws’ in the Old Testament.

The Rev Canon Thompson refused to give Holy Communion to a parishioner, Mr Banister, who had married his DWS.  For this refusal he was disciplined by the Court of the Arches, of which Sir Lewis Dibdin was then Dean.  He then applied, unsuccessfully, to the secular courts for an order restraining the disciplinary proceedings against him in the ecclesiastical court.

The proceedings in the Court of the Arches are reported as Banister v Thompson (1908) Probate 362.  However, the secular case is interesting in its own right, as it is probably the only case in which the secular courts have discussed at length the tension between Church doctrine and modern ‘permissive’ legislation (now more usually known as ‘equality law’).

The Divisional Court boldly sought to construe the divine law as well as the human law.  It concluded that marriage with a DWS was not against divine law.  One judge stated that, before the 1907 Act, such a marriage was ‘bad in law, not because it always was against the law of God, but merely because the statutes of the realm declared it to be unlawful’ (p.79).  He held that ‘this marriage, which before was contrary to the law of God merely because the [Henrician] statute condemned it as such, is so no longer’ (p.81).

Another judge reached the same theological conclusion: ‘the words ‘contrary to the law of God’ [in the Act of Henry VIII] cannot be meant literally … for the Pope … grant[ed] dispensations in these cases, and Henry VIII himself married under such a dispensation’ (p.97).

One judge suggested that the Act of 1907 had not disturbed the theological position: ‘The Act … give[s] the persons contracting such marriages their full civil rights [i.e human rights] but no more … It does not repeal the Act of Henry VIII which declared that such marriages were contrary to God’s law’ (p.88).

The judges of the Divisional Court was clearly reluctant to accept the possibility that an Act of Parliament could be contrary to divine law: ‘Were the meaning of the Act not what I suggest, it would provide … that a clergyman … might solemnise … a marriage contrary to the law of God, and this we must not lightly suppose Parliament to have intended’ (p.81).

The Court of Appeal largely agreed with the Divisional Court’s theological conclusions, adding that prohibition of marriage to a DWS ‘was not in accordance with the general practice of Christian countries and Churches’ (p.119 – in other words, such marriages were permitted in most other countries by the time the 1907 Act was passed). 

One Lord Justice even suggested something resembling a doctrine of parliamentary infallibility: ‘this right of individual judgment which created the Reformation necessitates some ultimate arbiter, for the opinions of men … will differ, and the state is the only possible arbiter’ (p.132).

Of all the judges who spoke in the case, only the Master of the Rolls, Cozens-Hardy, declined to enter the theological discussion.  Instead he took a clear positivist view that an Act of Parliament is the law and requires no further justification.  The judges’ function is merely to interpret and apply the Act, not to reconcile it with divine law.  Cozens-Hardy MR stated that ‘marriages … with [a] DWS were [fomerly] declared to be prohibited by God’s law … That was the then view of the Legislature.  It is not for any court to consider whether they were in truth forbidden by God’s law’ (p.107).

Mr Justice Darling probably had the clearest insight into the policy behind the 1907 Act: ‘in reality, Parliament had not any settled intention whatever, except … to legalize these marriages … perhaps desiring to leave altogether unsolved the many embarrassing questions of conscience … arising out of it’ (p.82).

Both courts affirmed that the Church and the clergy were subject to the 1907 Act, regardless of its consistency or inconsistency with divine law.  The Master of the Rolls stated that a marriage ‘is one and the same thing whether the contract is made in church … or before a registrar … the Established Church has never refused to recognize any marriage which by our law is valid as being otherwise than a good marriage for ecclesiastical purposes’ (p.109).

One Lord Justice remarked sternly that ‘No man has a right to become a clergyman of the Church of England who is not prepared to perform the lawful duties of that office … If the [performance of a lawful duty] would do violence to his conscience, he should abstain from entering holy orders’ (pp.129-30).

Tension between secular law and Church doctrine obviously becomes acute when the law obliges the Church to do something incompatible with its doctrine. 

The legislature’s solution to ’embarrassing questions of conscience’ arising from the solemnisation of marriage has been the insertion of a ‘conscience clause’ in the relevant Act, relieving individual clergy from the obligation of solemnising marriages which they regard as contrary to the Church’s teaching.  The conscience clause concerning the marriage of divorced persons in church is now contained in the Matrimonial Causes Act 1965, s.8(2).

This device seems to have avoided direct conflict in the century since Dibdin was decided.  In the Civil Partnership Act 2004, Parliament apparently inserted a conscience clause for the entire Church by providing that civil partnerships may not be registered on religious premises (s.6(1)).  This has recently been amended (s.6A, introduced by the Equality Act 2010, s.202).  However, there is no guarantee that secular authority’s delicacy towards embarrassed religious consciences will continue in the future. 

The attempts of the judges in the Dibdin case to reconcile divine law with an inconvenient Act of Parliament may well seem clumsy and confused.  Their modern counterparts apparently decline to acknowledge that there is a divine law (or at least they plead ignorance of it).  Any claim of divine law is treated as a matter of individual religious belief only.  The religious belief (not the divine law) is then required to be proved by evidence. 

This current attitude fails to appreciate that divine law is still incorporated into English ecclesiastical law to some extent (by the Worship and Doctrine Measure 1974, s.5).  Nor can the tension between divine law and human law be got rid of by simply denying divine law.  Secular authority may try to deny divine law, but it cannot escape religious belief and conscience, which are the human response to that law.  Judges who now try to reconcile this human response to divine law with secular law, while rejecting divine law itself, are likely to end just as clumsy and confused as their predecessors were in the Dibdin case.

Lords Blackburn and Denning on Ecclesiastical Law

In the case of Mackonochie v Penzance (1881) 6 Appeal Cases 424, Lord Blackburn defined ecclesiastical law as ‘such canons and constitutions ecclesiastical as have been allowed by general consent and custom within the realm’ (p.446).

Lord Blackburn also sought to identify the sources of ecclesiastical law:

‘When the question arises what is the English ecclesiastical law … great weight should be given to the principles of the ecclesiastical law, laid down by those ancient writers on the ecclesiastical law of England whose treatises have been accepted by … the Ecclesiastical courts as of authority … [and] to the practice of the Courts Ecclesiastical … But most weight of all is … to be attributed to judicial decisions’ (p.447).

These dicta suggest that ecclesiastical law is those elements of the mediaeval canon and civil law recognised and administered by the Church courts. 

Such a definition may have been a trifle anachronistic, even for the early 1880s.  One would never know from reading Mackonochie v Penzance that Doctors’ Commons had been closed down about 20 years earlier and ecclesiastical jurisdiction all but abolished.  It is true, however, that the case concerned disciplinary proceedings against a clergyman (the Rev Mackonochie).  Clergy discipline was one matter over which the ecclesiastical courts retained jurisdiction after the mid-19th century reforms.  

Lord Denning expanded on Lord Blackburn’s definition in ‘The Meaning of Ecclesiastical Law’ (1944) 60 Law Quarterly Review 235.  He proposed two meanings of ecclesiastical law

(1) its general sense and

(2) its technical sense.

In its general sense, ecclesiastical law is the law relating to any matter concerning the Church of England.  In its technical sense, ecclesiastical law is ‘the law administered by ecclesiastical courts and persons, in the same way that ‘equity’ in a technical sense meant the law administered by the Courts of Chancery’ (p.236).

‘Technical’ ecclesiastical law may be distinguished by the remedies awarded by the ecclesiastical courts, whether to clergy or laity:

(1) monition

(2) penance

(3) suspension ab ingressu ecclesiae and

(4) excommunication. 

Technical ecclesiastical law can also be defined by reference to its rights and obligations.  This definition is not easy, because it becomes necessary to distinguish the law exclusively declared by the ecclesiastical courts from that declared by the secular courts. 

On Lord Denning’s analysis, law declared by the secular courts is not ecclesiastical law in its technical sense, only in its general sense.  Law exclusively declared by the ecclesiastical courts concerns

(1) clergy discipline

(2) faculties and

(3) marriage licences.

However, Lord Denning also identified certain matters where the law is enforced both by the ecclesiastical and the secular courts:

(1) the consecration of land

(2) sequestration of ecclesiastical property

(3) the incumbent’s obligation to repair his parsonage, and to reside in it

(4) damage to property in churches and churchyards and

(5) the obligation to repair the parish church.

The difficulty with Lord Denning’s analysis of ecclesiastical law is that it is highly anachronistic, and was so even at the time he wrote it.  He expands Lord Blackburn’s definition very learnedly, but without making any attempt to update it.   

Thus Lord Denning’s account of ‘technical’ ecclesiastical law has nothing to say about the Church Assembly / General Synod, the Convocations, the Ecclesiastical / Church Commissioners or the other institutions that have governed the Church since 1919.  Nor even does it include the canons of 1603.  The definition of ecclesiastical law is restricted to the Church courts, but the canons were promulged by the Convocations.

Lord Denning’s reference to the ‘remedies’ of the ecclesiastical courts may require clarification.  In secular law a remedy is an award (usually damages) made to compensate the victim of a wrongful act.  In the ecclesiastical courts, remedies were intended to reform the offender pro salute animae, so as to secure the salvation of his soul, not to compensate his victim.  They were ‘medicinal’ in character.

Ecclesiastical courts can no longer order penance or exclusion from the parish church.  If a person is to be excluded from church an injunction from the secular court will be required.  Monition (now described as injunction in the Clergy Discipline Measure 2003) and ‘excommunication’, in the sense of exclusion from holy communion, are both still available to the Church but are exercised with extreme infrequency.

Some of the hybrid ecclesiastical-secular jurisdictions identified by Lord Denning are also anachronistic.  The designation of a public place of worship as such now depends on the authority of a statutory scheme, not consecration, albeit that consecration is a preliminary to the making of the scheme.  The obligation to repair the parish church is now enforceable only against a lay rector, and, under the Chancel Repair Act 1932, proceedings may only be brought in the secular court.  The management of parsonages and glebe is an administrative rather than a judicial matter and is dealt with by diocesan ‘boards’, not by Church courts.

If the definition of ecclesiastical law is limited to the work of the ecclesiastical courts, it will exclude the vast mass of law concerning the Church, including all the most important law.  The ecclesiastical authority of the Monarch and Parliament is a doctrine of statute and common law, to which the ecclesiastical courts contributed little.  The law regulating the Church’s central activity of worship has always been regulated by statute since the Reformation (the Acts of Uniformity and now the Worship and Doctrine Measure 1974).  Even when the ecclesiastical courts were called upon to decide questions of worship and doctrine, their decisions were still subject to the overriding jurisdiction of the Privy Council, a secular tribunal.

Although the law concerning pew rights and sittings in church was mostly decided by the ecclesiastical courts, the law concerning proprietary rights over the parish church and churchyard was developed by the secular courts: see for example Griffin v Dighton (1864) 122 English Reports 767, Greenslade v Darby (1868) 37 Law Journal 137.

On the other hand, Lord Denning’s ‘general’ definition of ecclesiastical law (‘the law relating to any matter concerning the Church of England’) is too broad to be of much help.

Lord Denning’s analysis of ecclesiastical law was followed in Attorney-General v Dean and Chapter of Ripon (1945) 1 Chancery 239, a case that was decided just after he wrote his article.  The court slightly expanded Lord Denning’s definition, by suggesting that a Church Measure could also constitute ‘technical’ ecclesiastical law. 

Later courts and commentators have not followed the Blackburn-Denning definition of ecclesiastical law.  It is too narrow and anachronistic.  However, there has been little success in formulating an alternative definition.

In Wallbank v Aston Cantlow Parochial Church Council (2002) Chancery 51, the best description of ecclesiastical law that the Court of Appeal could offer was ‘a portmanteau term which embraces not only the canon law but both secular legislation and common law relating to the Church’ (para 8).

Mark Hill offers a very ‘general’ definition of ecclesiastical law as ‘the law of the Church of England, howsoever created’, which includes ‘laws, rules and norms, some imposed by the state, some made by the Church with the concurrence of the state, and others created internally by the Church’ (Ecclesiastical Law 2nd edition 2001, OUP, pp.1-2).

Norman Doe argued that ‘the terms ‘canon law’ and ‘ecclesiastical law’ ought [both] to be discarded in favour of the title ‘church law’, to include both internal church-made law and external state-made law’ (The Legal Framework of the Church of England, Clarendon, Oxford, 1996, p.32).  However, he apparently changed his mind about this, as his next book was entitled The Canon Law of the Anglican Communion (1998).

English Ecclesiastical Law is NOT Canon Law

The Constitutional Doctrine

There is no doubt of the great influence of mediaeval pan-European canon law on English common law.  However, English common law is clear that canon law was not, proprio vigore, part of English law.  As Lord Chief Justice Sir Matthew Hale said:

‘the authority and force they [the civil and canon laws] have here is not founded on, or derived from, themselves … they bind no more with us than our laws bind in Rome or Italy … all the strength that either the papal or imperial laws have obtained in this kingdom, is only because they … are part of the statute laws of the kingdom or else by immemorial usage and custom in some particular cases and courts, and no otherwise’ (History and Analysis of the Common Law of England 1713, pp.28-29).

Thus mediaeval canon law is part of English law only to the extent that it is incorporated into English law.  It may be incorporated in one of two ways:

(1) expressly, by being codified as statute law or

(2) implicitly, by the sanction of ‘immemorial usage and custom’ (p.28).

Any rule of mediaeval canon law that is not incorporated into English law by one of these two ways cannot be part of English law.

Hale’s analysis is confirmed by case law.  Cawdrey’s Case (1591) 77 English Reports 1 explains that ‘Albeit the Kings of England derived their ecclesiastical laws from others [i.e Catholic Europe], yet so many as were … approved and allowed here, by … a general consent, are … rightly called the King’s ecclesiastical laws’ (p.11).

In R v Millis (1844) 8 English Reports 641, the House of Lords explained that

‘The law by which the spiritual courts of this Kingdom have … been governed … is not the general canon law of Europe … but, instead thereof, an ecclesiastical law, of which the general canon law is no doubt the basis, but which has been modified and altered … by the ecclesiastical constitutions of our Archbishops and bishops and by [Parliament] and … has been known … by the distinguishing title of the King’s ecclesiastical law.  The canon law of Europe does not, and never did, as a body of laws, form part of the law of England’ (p.898, emphasis supplied).

In Reichel v Bishop of Oxford (1889) 14 Appeal Cases 259, the Rev Mr Reichel delivered a deed of resignation to his bishop, then changed his mind and attempted unsuccessfully to withdraw it.  In challenging the validity of his own resignation, he apparently ‘relied much on foreign canonists’, and referred to proceedings in the papal chancery (pp.265-6). 

However, the House of Lords reaffirmed the position that European canon law per se was not part of English law.  Whatever their validity in the papal courts, the canonical rules cited by Mr Reichel had not been incorporated into English law.

The question of the incorporation of canon law into ecclesiastical law was discussed in depth in Read v Bishop of Lincoln (1889) 14 Probate Division 88.  The Bishop was accused of certain ritualistic offences.  The Archbishop of Canterbury summoned him to answer the accusations.  The Bishop disputed the Archbishop’s jurisdiction to discipline him.  At that time the discipline of bishops (as distinct from lesser clergy) was not regulated by statute.

In support of his objection, the Bishop cited certain canons of the Council of Chalcedon of 451, and of synods of the late Roman Empire, which supposedly asserted that a bishop could be tried only by the whole episcopate of the province, and not by the Archbishop alone.

The Archbishop dismissed the Bishop’s objection.  The Privy Council affirmed the Archbishop’s decision.  The ancient canons cited by the Bishop had never been received into English law.  Nor had they even been received by the Western Church, but only by the Greek Church.  Nor, on their wording, did the canons state that bishops could be tried only by their provincial synods.  They merely assumed that the trial of a bishop was ‘a usual and obvious function of synods’ (p.108).

Furthermore there was a distinction between doctrine and discipline.  The Council of Chalcedon and other councils and synods of the early Church took decisions both on questions of religious doctrine and on questions of discipline and practice. 

The Archbishop observed that ‘[Their] definitions of doctrine are our rule … But the canons of order and discipline passed in those same councils … are on another footing’ (p.109).

This case, which presaged the more famous ‘Lincoln Judgment’, helpfully illustrates the Church of England’s relationship with the pre-Reformation ecumenical councils.  The doctrine of the early councils is accepted in England, but their discipline is not.  By contrast, much of the discipline of the mediaeval councils is accepted in England, but their doctrine is not.

It is wrong to identify ‘canon law’ with the canons of the Church of England.  The domestic canons are not the same as the mediaeval Catholic canon law of Europe.  In Kemp v Wickes (1809) 161 English Reports 1320, the Dean of the Arches drew a distinction between ‘the ancient general canon law’ and ‘our own canons’ (p.1324).

Application of the Doctrine

Hale’s analysis of the relationship of canon law to ecclesiastical law should guide the researches of ecclesiastical lawyers and courts.  If some part of canon law has been incorporated into statute law (Act of Parliament, Church of England Measure or some other statutory rule) then the place to look for it is obviously in the particular Act, Measure or rule.

The relationship of canon law to common law (‘immemorial usage and custom’) is more difficult, but not as difficult as some modern ecclesiastical lawyers seem to think.  As Hale says, mediaeval canon law, like statute law, was a written law, taking the form of canons, decrees and decretals, issued by a particular legislator (p.23).  English common law, by contrast, is unwritten customary law

Thus canon law can only ever be incorporated into common law if it has inspired a custom or usage recognised by common law.  It is this custom or usage that is the English law, not the canonical legislation that inspired it.

Thus mediaeval canon law is the seed, the post-Reformation custom or practice is the plant that grows from it.  English law is concerned only with the plant, not directly with the seed.  The task of the lawyer or the court, therefore, is to examine the alleged custom or usage, not the mediaeval canonical legislation out of which it grew.

Hale also makes the point that common law will only enforce a custom or usage that it considers reasonable (p.26).  This follows the Submission of the Clergy Act 1533, which provides that pre-Reformation canon law must ‘be not contraryant nor repugnant to the lawes statutes and customes of this realm’ (s.7).  An unreasonable canon law-inspired custom would not satisfy this condition.

How is the ecclesiastical custom or usage to be identified as common law?  In Middleton v Crofts (1736) 26 English Reports 788, Lord Chief Justice Hardwicke suggested that the correct test for the survival of pre-Reformation canon law into English common law is clear recognition by the courts.

Referring to the ecclesiastical courts, he held that ‘a long course of [judicial] precedents would be of great weight … though a few instances would not, because … parties might choose to submit, rather than undergo the expense and clamour of a suit for prohibition’ (p.799).  However, ‘the sanction of a judgment of this [secular] court’ is ‘more material’ still.

Lord Hardwicke anticipated modern confusion by warning against an ‘antiquarian’ approach to ecclesiastical common law.  ‘The history of the ancient councils of this island … furnish very little materials towards fixing the point of law as to the obligations of canons’ (p.790).  The basis of membership of these councils ‘is very uncertain and obscure’.  Moreover if those councils met under the legatine authority of the Pope, rather than the metropolitical authority of the Archbishop, then they were no more than a ‘papal usurpation’, and could have no authority in English law.

Lord Hardwicke therefore concluded that ‘it is safest for judges to proceed upon sure foundations which are

[1] the general nature and fundamental principles of this [English / British] constitution

[2] Acts of Parliament and

[3] the resolution and judicial opinions in our books,

and from these to draw our conclusions’.

In other words, English ecclesiastical law is identified in exactly the same way as English secular law, by studying the relevant statute and case law.

Modern Confusion

The constitutional doctrine that English ecclesiastical law is not canon law is clearly stated, on the highest authority.  Yet ecclesiastical lawyers seem to have remarkable difficulty understanding it.  Despite the clear legal authority to the contrary, ecclesiastical law is often described as if it and canon law were one and the same thing.  Discussion becomes very confused as a result.

Peter Winckworth’s commentary A Verification of the Faculty Jurisdiction (1953 SPCK, London) indicates a failure to heed Lord Hardwicke’s warning against an antiquarian approach to the law. 

Winckworth traces the ‘source’ of the English faculty jurisdiction over churches and churchyards to a constitution or canonical rule promulged by a mediaeval ‘pan-Anglican’ council in 1236.  This apparently forbade rectors to ‘pull down ancient consecrated churches without the consent and licence of the Bishop of the diocese’ (p.2).

The constitution of 1236 may be the earliest extant canonical rule in England that alludes to episcopal jurisdiction over church buildings, but it is hard to accept that it constitutes the legal source of the modern faculty jurisdiction.  It refers only to the destruction of ancient churches.  It does not purport to confer power on the bishop to control all dealings with Church property.

Moreover, Winckworth admits that the faculty jurisdiction as it exists today was not apparent until the mid-18th century, and that 17th century textbooks on ecclesiastical law do not even refer to the faculty jurisdiction (p.13).  If the rule promulged in 1236 really founded the faculty jurisdiction, this gap of half a millennium is hard to explain.

It is argued that Lord Hardwicke’s approach in Middleton v Crofts, based on principle and authority rather than historical curiosity, is to be preferred.  The true ‘source’ of the faculty jurisdiction in English law is a constitutional principle, not a particular rule issued by a mediaeval council.  Church buildings are places of public worship.  Bishops oversee the administration of public worship.  This function of religious oversight brings with it the right to control dealings with church buildings, to ensure that they are being used in accordance with their proper purpose.

This constitutional principle of episcopal oversight is part of English law.  The principle was clearly inherited from mediaeval canon law.  However, the particular rule of 1236 is not part of English law, and never was.  It is merely one manifestation of the canonical principle that English law inherited.

However, Winckworth’s thesis on the faculty jurisdiction is a model of coherence compared with a certain opinion delivered to the House of Bishops in April 2010 by some legal officers of the Church of England.  The opinion is entitled ‘Divorce and Episcopal Appointments: The Legal Position’.   The text may be found on the internet website, accessed 19th May 2012.

This opinion addressed the question whether being divorced and remarried would be an ‘impediment’ to a priest being ordained (consecrated) as a bishop.  The opinion correctly noted that divorce, in the modern sense of dissolution of marriage, was not possible under mediaeval canon law.  Thus divorce could not have been an impediment to ordination under canon law, since divorce itself was unknown to canon law (para 4). 

However, this fact did not deter the learned authors of the opinion from discussing mediaeval canon law at length.  Having accepted that divorce was unknown to canon law, they identified bigamy as the nearest mediaeval equivalent (para 7).  If a married mediaeval man who had tired of his wife but failed to persuade the Church courts to annul the marriage were to marry again, the second marriage would, of course, be bigamous.  Canon law, unsurprisingly, disapproved of bigamy.

The opinion suggested that ‘the concept of bigamy under pre-Reformation canon law could have had relevance’ to ordination (para 8).  However, it went on to conclude that ‘it would seem very difficult (and probably impossible) to prove that the relevant canons [concerning bigamy] were recognised, continued and acted upon in England after the Reformation’ (para 13).

The speculation about bigamy as a canonical impediment to ordination is a complete confusion, for the very reason identified in the opinion.  The subject of the opinion was divorce, not bigamy, and the possibility of divorce in the modern sense was not recognised by mediaeval canon law.

However, the cause of the confusion was the failure to heed the constitutional doctrine stated by Hale and confirmed by Millis.  The opinion presumes that mediaeval canon law must be part of English law unless there is clear authority that it is not.  Hale and Millis make clear that the contrary presumption applies.  Mediaeval canon law is not part of English law, and never was, unless it has clearly been incorporated into English law by statute or case law.

As the opinion recognised, the appointment of bishops is governed by statute law, the Appointment of Bishops Act 1533.  It also engages the royal prerogative.  The Submission of the Clergy Act, quoted earlier, made clear that no canon law was acceptable if it was contrary to statute law, or was ‘to the damage or hurte’ of the royal prerogative (s.7). 

The Appointment of Bishops Act and the case law on the confirmation of a bishop’s election state the Crown’s right to choose bishops in the clearest terms.  Any mediaeval ‘impediment’ to the consecration of a bishop chosen by the Crown would have received very short shrift in a post-Reformation court.

If a divorced and remarried bishop-elect were to deliberately conceal or fail to mention his previous marriage, the case of R v Archbishop of Canterbury (1902) 2 King’s Bench 503 suggests that this might be reason to refuse to confirm the election: ‘If … anything were brought to [the Archbishop’s] notice … that the sovereign had been deceived or misinformed, he might … properly delay confirmation or consecration until the sovereign’s direction could be taken …’ (p.561).

Rather belatedly the opinion of April 2010 recognised that there is no post-Reformation law to forbid the ordination of a bishop who has been divorced, only of a priest or deacon.  The draftsman of the Clergy (Ordination and Miscellaneous Provisions) Measure 1964 sought to prevent divorced and remarried persons from entering the ordained ministry, but failed to consider the possibility of clergy getting divorced and remarried after ordination.  The answer to this anomaly is new legislation to close the loophole, not to search for non-existent mediaeval ‘impediments’.

The antiquarian approach to ecclesiastical law taken by Winckworth and by the authors of the 2010 opinion also raises an issue of public policy.  Church factions, and even Church courts, should not be enabled to dig up obscure mediaeval documents, written in Latin rather than English, and use these to exclude from office candidates of whom they disapprove, or to promote a particular agenda, or to claim legal powers.  Simple justice demands that legal rules should be clearly stated and easily ascertainable, not buried in ancient history.

Law and History

The April 2010 opinion shows that failure to distinguish between canon law and ecclesiastical law leads in turn to a confusion between law and history. 

Thus the search for the answer to a point of ‘ecclesiastical law’ begins in the middle ages, or even earlier, and then muddles through the best part of a millennium to the present day.  This unearths an eclectic mass of legal detritus that has accumulated through the ages, which is then treated prima facie as the current ecclesiastical law.

In St. Peter’s, Draycott (2009) 3 Weekly Law Reports 248, the Court of the Arches referred to ‘the well-known uncertainty about what ecclesiastical law remained in force after the Reformation’ (p.258).  The chancellor who decided St. Mary the Virgin, Oxford (2009) 2 Weekly Law Reports 1381 was also much concerned about this question. 

Of course, there may well be uncertainty about how ecclesiastical law changed (or stayed the same) in the mid-16th century.  There may be similar uncertainty about 16th century criminal law, or 16th century employment law.  However, this is a historical question, not a legal one. 

The function of the court and the lawyer is to establish what the law is now, not what it was hundreds of years ago.  If the current law is unclear, it may be necessary to examine the earlier law which it replaced.  Nevertheless the object of the enquiry is always the current law, not any earlier law that has been repealed (and still less any material that was never part of the law in the first place).

Therefore the question whether a particular rule of mediaeval canon law survives in modern English law is answered by researching the current English law (statute and case law) in the usual way, not by researching mediaeval law or 16th century law.  Ecclesiastical law is part of English law.  Like secular law, it comprises statute law and common law.  It should be studied according to the same method as secular English law.

Perhaps there was considerable uncertainty about the state of the ecclesiastical law in the days when most of it took the form of unwritten common law.  However, during the 19th and 20th centuries, most ecclesiastical law (like most secular law) was codified in statute. 

Modern statute law tends not only to be very detailed and exhaustive, but is also supplemented by ‘quasi-legislation’  (guidelines, codes of practice etc).  This allows very little scope for the survival of  canon law-inspired custom or usage.

It is possible that the practice of the mediaeval or early modern Church may be relevant to the grant or refusal of a faculty in a particular case.  However, such practice is a question of fact, historical evidence, not a question of law.  Historians with the appropriate expertise should be consulted in such a case.  The Diocesan Advisory Committee may be able to assist.