Ecclesiastical law

Month: September, 2012

Exclusion from Holy Communion

The only remnant of ecclesiastical jurisdiction over the laity to survive the reforms of the 19th century is the power to exclude, or ‘repel’, a person from holy communion.

This power is now regulated by Canon B16, which provides that

‘if a minister be persuaded that anyone of his cure who presents himself to be a partaker of the Holy Communion ought not to be admitted thereunto by reason of malicious and open contention with his neighbours, or other grave and open sin without repentance, he shall give an account of the same to the bishop … and therein obey his order and direction …’.

Canon B16 makes clear that the bishop alone may order that a person be excluded from the Sacrament.  The minister’s function is merely to inform the bishop and obey him.

It is true that Canon B16 confers an emergency power on the minister ‘in case of grave and immediate scandal to the congregation’.  However, in these (rather unlikely) circumstances, the minister is required to report all to the bishop ‘within 7 days after at the furthest and therein obey his order and direction’.

Natural justice must be observed.  Before making any order the bishop must ‘afford to [the sinner] an opportunity for interview’, to hear his side of the story.  If the bishop orders exclusion from the Sacrament the sinner must first be advised of this by the minister and warned ‘that in any wise he presume not to come to the Lord’s Table’.

Canon B16 does not oblige the bishop to order exclusion, now matter how grave the sin.  The bishop may confine himself to exhorting or rebuking the sinner.  The wording of Canon B16 also suggests that any order excluding a person from the Sacrament must be confined to one church, or at most the area of one benefice.  It starts by saying that ‘If a minister be persuaded that anyone of his cure etc’.  A person excluded from the Sacrament within that cure may still be admitted to it elsewhere.

The grounds on which a person may be excluded from the Sacrament were examined by Sir Lewis Dibdin, Dean of the Arches, in Banister v Thompson (1908) Probate 362. 

This case was decided before Canon B16 was promulged.  The power to exclude was then conferred by the rubric of the Book of Common Prayer, which had the statutory authority of the Act of Uniformity 1662, and by the canons of 1603.

The rubric was differently worded from Canon B16.  It provided that if any would-be communicant was ‘an open and notorious evil liver, so that the congregation by him is offended … the Curate having knowledge thereof shall warn him and advertise him … not to presume to come to the Lord’s Table until he have openly … repented’.  It did not expressly require the minister to refer the matter to the bishop.

Mr Banister was a parishioner of Canon Thompson.  He was a widower.  He married his deceased wife’s sister in Canada, because such a marriage was illegal in England.  Shortly afterwards, English law was changed to permit such marriages and retrospectively to legalise those already contracted.

This did not impress Canon Thompson, who refused to admit Mr Banister and his new wife to holy communion. Mr Banister complained to the ecclesiastical court.  Canon Thompson’s defence was that he had a lawful cause of refusal, because Mr Banister’s marriage conflicted with the Church’s teaching on marriage.

The case did indeed expose a tension between the Church’s teaching and the secular law.  Canon Thompson was correct that marriage with a deceased wife’s sister is contrary to the Church’s teaching.  The secular law acknowledged this by permitting a clergyman to refuse to solemnise such a marriage, and by making clear that it would not protect a clergyman who married his own deceased wife’s sister from ecclesiastical discipline.

The Court of the Arches admitted the difficulty: ‘the recent Act seems to recognise a distinction between the civil and ecclesiastical aspects of marriage, and to alter the law as to the one without purporting to affect the law as to the other … This … creates some difficulty for those who are concerned with its administration’ (p.700).

Nevertheless the Court rejected Mr Thompson’s defence.  It ruled that a priest has no inherent, ex officio power to exclude sinners from holy communion ‘in the absence of a judicial sentence of excommunication’ (p.383).  Canon B16 now makes this clear.

The priest’s function is limited to exhortation.  He ‘has authority to reprove, rebuke, exhort … He is to rebuke sin and to give warning of … ‘unworthy receiving’ of holy communion’ (p.387). 

The normal rule is therefore that ‘the responsibility of separating a man from communion is thus left … to the voluntary action of the man himself, whose conscience is to be informed … by the exhortations of the clergy’ (p.383).

However, the Court acknowledged that there was a power in the Church to refuse the Sacrament to an ‘open and notorious evil liver’.  It specified the conditions on which this power might be exercised:

(1) ‘By an evil liver is intended a person whose course of life, as distinguished from some particular action, is seen to conflict with the moral code of Christendom’ (p.385).  This suggests that one sin alone, however grave, does not warrant exclusion.  An objectionable course of conduct or lifestyle is required.

(2) ‘Open and notorious’ means ‘that the facts … of the evil living are so conspicuous and well known as to be indubitable’ (p.386).  Mere suspicion is not enough.  The wrongdoing must either be admitted by the sinner or be proved by incontrovertible evidence.

(3) ‘The evil living … must cause offence to the public conscience’ (p.387).  The sinful conduct must be offensive to the sinner’s fellow communicants.  Exclusion from holy communion will therefore be heavily influenced by cultural value judgement.  The same sin may justify exclusion in one parish, if it shocks the congregation there, but not in a neighbouring parish, if the congregation is not shocked.

The purpose of exclusion is the public order of the Church, not the reformation of the sinner: ‘the clergyman in repelling any one is not … exercising godly discipline on the person repelled, but he is acting as a public officer for the protection of the whole community’ (p.385). 

Applying this law to the facts of Canon Thompson’s case, the Court held that it was ‘impossible to say that [Mr and Mrs Banister], lawfully married … can … be so described [as evil livers] merely because they are living together as man and wife’ (p.390).

It might have added that Canon Thompson had not, apparently, produced any evidence that Mr Banister’s marriage had caused offence to the local congregation, as required by condition (3).

The Court of the Arches’ decision was supported by the secular courts in the subsequent Dibdin litigation, which is discussed elsewhere.  The case also clearly influenced the drafting of Canon B16.

However, Canon B16 does not have statutory authority.  Following the Worship and Doctrine Measure 1974, the rubric of the Book of Common Prayer no longer has statutory authority either.  This raises the question whether the Church’s right to repel from holy communion has survived.

Mr Banister founded his right to receive holy communion on an ancient statute, the Sacrament Act 1547.  This Act provides that the minister ‘shall not without lawful cause deny the [Sacrament] to any person that would devoutly and humbly desire it’.

However, the reference in the 1547 Act to a ‘lawful cause’ of refusal clearly implies that persons may lawfully be denied the Sacrament.  There is overwhelming historical evidence that the Church has, from the earliest times, claimed and exercised the right exclude grave sinners from holy communion.  The Church courts continued to excommunicate offenders, with the support of the secular courts, until the 19th century.  Article 33 also affirms the Church’s right.

Refusal of the Sacrament was briefly discussed in Blunt v Park Lane Hotel (1942) 2 All England Reports 187.  A litigant in an action for slander sought unsuccessfully to avoid embarrassing questions about her sex life by pleading privilege against self-incrimination. 

Lord Goddard (then Lord Justice Goddard) acknowledged that a known adulteress might be liable to be repelled from holy communion, but held that this did not constitute a criminal penalty, and so could not attract the privilege.

The Sacrament Act provides that persons must ‘devoutly and humbly’ desire the Sacrament to qualify for admission.  This suggests that a priest is within his rights to refuse the Sacrament to someone who is drunk or disorderly (a fairly common occurrence at Christmas midnight masses) without first requiring the bishop’s decision.

Modern Ecclesiastical Jurisdiction

Lord Penzance

Lord Penzance, Dean of the Arches in the late 19th century, did much to modernise ecclesiastical jurisdiction.  In Phillimore v Machon (1876) 1 Probate Division 481 he signified the Church courts’ recognition of the loss of their jurisdiction over the laity.  In Combe v de la Bere (1881) 6 Probate Division 157 he remoulded the jurisdiction over the clergy from a jurisdiction pro salute animae into a modern disciplinary jurisdiction.

The process of modernisation was completed by Lord Penzance’s successor as Dean of the Arches, Sir Lewis Dibdin, in Banister v Thompson (1908) Probate 362, which clarified the law governing exclusion from Holy Communion.  This is discussed separately.

In the case of Peek v Trower (1881) 7 Probate Division 21, Lord Penzance also effectively inaugurated the modern faculty jurisdiction, though unfortunately his judgment in the later case of Nickalls v Briscoe (1892) Probate Division 269 gave rise to subsequent misunderstandings.  This is also discussed separately.

Phillimore v Machon

Mr Machon was a farmer, not a clergyman or churchwarden.  Walter Phillimore, son of Sir Robert, was Vicar-General of Lincoln, though aged just 30.  He prosecuted Mr Machon in the ecclesiastical court for allegedly swearing a false affidavit in order to obtain a marriage licence.

Lord Penzance was plainly irritated by the precocious Phillimore’s attempt to revive the (by then) obsolete ecclesiastical jurisdiction over the laity.  The difficulty, however, was that the jurisdiction to try this particular offence had not been expressly abolished by Act of Parliament.

The difficulty was solved by holding that the ecclesiastical jurisdiction had been inferentially abolished by an Act of Parliament.  This Act had conferred criminal jurisdiction in respect of false oaths on the secular courts.  By doing this Parliament had withdrawn the jurisdiction from the ecclesiastical court.

Lord Penzance cited Coke:

‘where the common or statute law give remedy in foro seculari … the conusans of that cause belongs to the King’s temporal courts only: unless the jurisdiction of the ecclesiastical court be saved or allowed by the same statute to proceed …’ (p.489). 

Phillimore’s suit was dismissed with costs.

The case is useful for its approach to outdated law.  Lord Penzance noted that ‘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).  However, he acknowledged that contemporary thought alone ‘form[s] no reason for rejecting the jurisdiction, if it exists in law, but [it] ought to make the Court careful in asserting such a jurisdiction if its existence is not plainly established …’.

Phillimore had not been very careful in this respect.  Lord Penzance noted that he had been unable to cite a similar prosecution in an ecclesiastical court within the previous 200 years.

These dicta acknowledge that a jurisdiction may be abolished only by statutory authority, express or implied.  However, they also suggest that, where the jurisdiction is plainly anachronistic, it is wrong, as a matter of policy or discretion, for the Court or its officials to seek to revive it.

Combe v de la Bere

The Rev Mr de la Bere was convicted of various ‘ritualist’ offences: ‘unlawful use of lighted candles … unlawful elevation of the paten … unlawfully kneeling or prostrating himself …’ (p.158).  The Court of the Arches suspended him for six months.  He defiantly continued to officiate in his church and also obstructed the clergyman appointed to stand in for him during his suspension.

Such flagrant disobedience left the Court with little alternative but to deprive Mr de la Bere of his living.  However, Lord Penzance carefully discussed the origin and scope of deprivation as an ecclesiastical penalty.  He found that there were ‘very meagre records of ecclesiastical law’ on the point (p.162).

Deprivation is deprivation from office.  It therefore necessarily affects property rights.  However, Lord Penzance noted that ‘in [no] case of purely spiritual cognizance [have] the temporal courts … questioned the propriety of this sentence or the right of the [ecclesiastical] court to inflict it’. 

Thus he concluded that the ecclesiastical court had jurisdiction at common law to deprive a clergyman from office.  (Later, of course, the penalty was sanctioned by statutory authority.)

Citing Ayliffe, Lord Penzance held that ‘All the causes of deprivation may be reduced to these three heads …

[1] want of capacity,

[2] contempt and

[3] crimes’ (p.163).

‘Want of capacity’ may refer to some medical incapability or to legal incapacity (for example, if the incumbent is not an ordained priest).  ‘Contempt’ is disobedience to ecclesiastical law, or to the lawful orders of the ecclesiastical authority.

Lord Penzance then stated the criteria for deprivation: ‘the gravity of the offence in each particular case taken in connection with its attendant circumstances’ (pp.169-70).  Also ‘one mode of measuring the gravity of an offence is to consider the obligations which have been broken through the committing of it’ (pp.174-5).

The case established that the purpose of modern ecclesiastical discipline is not ‘the soul’s health’ or the offender’s ‘reformation of manners’.  Discipline serves the public order of the Church, which demands the exclusion from office of those guilty of serious or persistent misconduct.

Combe v de la Bere was affirmed by the Court of the Arches in Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012.

The Rev Mr Bland did not get on with his parishioners.  He was convicted in the consistory court of various offences of neglect of duty and unbecoming conduct.

Mindful of the fraught situation in Mr Bland’s parish, the chancellor sentenced him to be deprived of his living, holding that ‘I should be failing in my duty if I did not … ensure that the convicted clerk and the cures where he was working part company now for ever’ (p.1021).

However, the Arches strongly disapproved of this sentence, holding that it was ‘a wholly wrong approach’ to use deprivation as a tool to resolve a difficult pastoral situation.  It followed Combe in holding that ‘the paramount consideration in selecting the appropriate sentence … should be the gravity of the offence … or the totality of the offences …’.

However, the Court of the Arches agreed that, if the proven offence was of sufficient gravity to warrant deprivation, it may be relevant to consider ‘the interests of the parish together with the other relevant circumstances’.

On Mr Bland’s appeal, the Court of the Arches overturned all his convictions, except a conviction for writing a number of rude letters, and sent him back to his parish with a rebuke.  (The pastoral situation there did not improve, indeed it deteriorated, and for many years Mr Bland’s Sunday services were attended only by his housekeeper.)