The Constitutional Doctrine of the 39 Articles

by Philip Jones

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.

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