The Chancellor, the Official Principal and the Vicar-General
by Philip Jones
Consistory courts are now regulated principally by the Ecclesiastical Jurisdiction Measure 1963. A consistory court is there described as ‘a court of the bishop’ (s.1). S.13 provides that the chancellor is ex officio the official principal of the bishop.
According to Halsbury’s Laws of England
‘the chancellor acts in the capacity of the official principal of the bishop … [but] the chancellor’s authority is derived from the law. He is a Queen’s judge, in one of the Queen’s courts. He acts in the court … as an independent judge, uncontrolled by the bishop. [However] the processes of the consistory court generally run in the name of the bishop … they may, however, run in the name of the chancellor as official principal of the bishop’ (4th edition, volume 14, para 1275).
This description of the chancellor’s office is somewhat confused. The consistory court is the bishop’s court, and the chancellor is the bishop’s official principal and acts in his name. Yet the chancellor is independent of the bishop, the Queen’s judge, not the bishop’s.
It is argued that the root of this confusion is that the chancellor, though designated as such by the 1963 Measure, does not exercise the jurisdiction of a chancellor. It is true that s.6 of the 1963 Measure preserves all the then existing jurisdiction of the consistory court that is not expressed abolished by the Measure. However, almost all the chancellor’s jurisdiction was abolished by statute, or else became practically extinct, in the 19th century, long before 1963.
The Patronage (Benefices) Measure 1986 confers jurisdiction on the chancellor to hear an appeal from the registrar’s refusal to register an applicant as patron of a benefice in the diocese (schedule 1(9)). This may constitute a revival of the chancellor’s ancient jurisdiction qua chancellor. (There is no reported case of this 1986 jurisdiction having been exercised.) However, in exercising the faculty jurisdiction over churches and churchyards and the solemnisation of marriage in church, the chancellor is acting qua the bishop’s vicar-general.
Phillimore’s Ecclesiastical Law makes this clear (2nd edition 1895, pp.928-30). Phillimore suggests that the title ‘chancellor’ is of secular origin, ‘grown into use in imitation of the like title in the state’ (p.928). He goes on:
‘This office (as it is now understood) includes in it two other offices … official principal and vicar-general. The proper work of an official is, to hear causes between party and party … which are matters of temporal cognisance, but have been granted to the ecclesiastical courts by the concessions of princes. The proper work of a vicar-general is, the exercise and administration of jurisdiction purely spiritual, by the authority and the direction of the bishop … to the preserving of discipline and good government in the church’.
Thus the chancellor is, as Halsbury says, the Queen’s judge and independent of the bishop, when he is exercising his secular jurisdiction to resolve disputes between parties. However, when exercising spiritual jurisdiction over the governance of the Church, the chancellor is acting as the bishop’s vicar.
The reason for this is obvious. The bishop has the principal responsibility for ecclesiastical governance in the diocese. The administration of justice between disputing parties, by contrast, is a secular function. It is therefore exercised on behalf of the Monarch rather than the bishop.
Phillimore makes clear that the chancellor’s secular jurisdiction was a contentious jurisdiction:
‘Voluntary jurisdiction is exercised in matters which require no judicial proceeding, as [formerly] in granting probate of wills … [and now] sequestration of vacant benefices, institution and such like; contentious jurisdiction is, where there is an action or judicial process, and consists in the hearing and determining of causes between party and party’ (p.930).
Unfortunately the draftsman of the 1963 Measure seems not to have appreciated the distinction between the spiritual and secular functions of a chancellor / vicar-general. The Measure makes only the briefest reference to the office of vicar-general, providing that ‘Nothing in this Measure affects … the mode of appointment, office and duties of Vicars General …’ (s.83(2)).
In The Faculty Jurisdiction of the Church of England (2nd edition 1993), G.H Newsom suggested that, in practice, the chancellor is always appointed vicar-general as well. He correctly observes that ‘it is as vicar-general that the chancellor grants marriage licences’ (p.15). However, he did not appreciate that all other ecclesiastical licences are similarly the proper responsibility of the vicar-general. A faculty and a licence are really the same thing, a permission to do something. The terms are used interchangeably in the older ecclesiastical reports.