by Philip Jones
Archbishops, bishops and lesser clergy are said to be bound to each other by a relationship of canonical obedience. Canon C1(3) of the Revised Canons recites that
‘According to the ancient law and usage of this Church and Realm of England, the inferior clergy … owe canonical obedience in all things lawful and honest to [their] bishop … and the bishop of each diocese owes due allegiance to the archbishop of the province as his metropolitan’.
Canon C14 requires the bishops and clergy to take an oath of obedience to their respective superiors. Lay readers and lay workers are also required to make a declaration of obedience to the bishop (Canons E7 and E8).
The account of canonical obedience in Canons C1(3) and C14 indicates its feudal character. The concept dates from the time when authority was defined in terms of the relationship between a subordinate or ‘vassal’ and his immediate superior. Everyone owed allegiance to his immediate superior, and did homage to him.
Such a concept is hard to reconcile with modern ideas of the rule of law and of a common authority to which all persons, of whatever degree of superiority, are subject. There are also many authorities in the modern Church besides bishops and Archbishops to which obedience is now required on the part of clergy.
Norman Doe criticises Canons C1(3) and C14. He argues that one or other Canon is
‘legally superfluous: the oath amounts to a promise to fulfil a pre-existing obligation … [it] has merely symbolic significance … it is unclear when an episcopal instruction is not honest and it is unclear whether an episcopal order which is lawful but not honest might be disobeyed’ (The Legal Framework of the Church of England (1996) Clarendon Press, Oxford, pp.213-14).
He also points out that churchwardens do not swear obedience to the bishop, even though they are the bishop’s officers (p.241). The reason for this may be that the office of churchwarden is of post-feudal origin.
Canonical obedience was discussed in the Bishop of St. Davids case (1699) 91 English Reports 126. The Bishop was tried by the Archbishop for alleged simony. The secular court refused to restrain the Archbishop’s disciplinary action. Chief Justice Holt stated that ‘By the common law, the Archbishop has a metropolitical jurisdiction … Archbishops are over bishops, as well as bishops over the other clergy’ (p.127).
Thus canonical obedience in the Church of England derives its force from common law. It originated in mediaeval canon law, but its operation within the Church of England requires its acceptance by, or incorporation into, English law.
Long v Bishop of Cape Town
Lord Kingsdown provided an admirably succinct and helpful definition of canonical obedience in the case of Long v Bishop of Cape Town (1863) 15 English Reports 756:
‘canonical obedience does not mean that the clergyman will obey all the commands of the Bishop against which there is no law, but that he will obey all such commands as the Bishop by law is authorised to impose’ (p.776).
The diocese of Cape Town was established for the first time in 1847. The Bishop was appointed by letters patent of the Crown. The letters patent conferred the usual powers of a bishop over lesser clergy, namely the rights to confer institution to benefices, to grant licences and to exercise discipline.
In 1848 the Bishop ordained the Rev Mr Long and licensed him to officiate in a church of which he, the Bishop, was trustee. Mr Long then took the oath of canonical obedience.
In 1853, the diocese of Cape Town was divided into three new dioceses. The Bishop resigned so that the arrangement could take effect, and was then reappointed to the newly constituted diocese under letters patent very similar to those of 1847. However, between 1847 and 1853, the constitution of South Africa changed fundamentally. South Africa was granted ‘home rule’. Thus it became self-governing, with a legislature of its own.
Relations between Mr Long and the Bishop deteriorated in 1856 when the Bishop convened a diocesan synod and summoned Mr Long to attend it. Mr Long objected to the synod and declined to attend. The Bishop suspended him for disobedience but Mr Long ignored him and carried on officiating. The Bishop then revoked his licence altogether. Mr Long went to court to prevent the Bishop dispossessing him.
The Privy Council supported Mr Long. It was true that Mr Long had submitted to the Bishop’s jurisdiction by accepting office from him and by taking the oath of canonical obedience. However, the Bishop had no power to convene the diocesan synod or summon Mr Long to it. He therefore had no lawful cause to suspend Mr Long for refusing to attend, nor to revoke his licence for ignoring the illegal suspension.
The 1853 letters patent had not been effective to create any jurisdiction, because they did not have the sanction of the newly established South Africa legislature. Moreover the letters patent did not purport to confer power on the Bishop to convene a synod and require attendance. Therefore no decision of the synod could bind others.
Lord Kingsdown’s definition, and the Privy Council’s decision in this case, make clear that canonical obedience, despite its feudal origin, really means obedience to the law rather than to the superior personally. The superior is entitled to obedience only when exercising powers conferred by law.
Obedience and Professional Discipline
Canonical obedience should therefore not be confused with the ‘evangelical counsel’ of obedience, which involves treating the will of the superior as the will of Christ. Such obedience is not, and never has been, required of the merely ‘secular’ clergy.
Clerical disobedience is now dealt with under s.8(1) of the Clergy Discipline Measure 2003. S.8(1) provides that it is a disciplinary offence for a clergyman to
(1) do any act in contravention of the laws ecclesiastical or
(2) fail to do any act required by the laws ecclesiastical.
According to the doctrine of canonical obedience stated by Lord Kingsdown in Long v Bishop of Cape Town, a clergyman will be guilty of disobedience to an order only if the bishop or other Church authority giving the order has the legal right to do so. A clergyman is within his rights to disregard an order that is given without proper authority.
It is also argued that it is a defence to a complaint of disobedience, even to a lawful order, if the accused clergyman was not adequately notified of the order, or if the order was not clearly expressed to be an order rather than a suggestion.
The particular responsibility of all ordained, and lay, ministers is ministry of the Word and the Sacraments. The general rule is that a minister must not only be ordained but also be authorised or licensed by a bishop, in order to exercise this ministry. The bishop also has the primary responsibility for clergy discipline (cf s.1 of the 2003 Measure).
The bishop may therefore be described as the professional authority of his clergy. He has a responsibility over them similar to that of the General Medical Council over doctors, or the Bar Council over barristers.
The Bishop, the Queen and the Pope
The Monarch is the Supreme Ordinary of the Church of England. Perhaps he or she should also be the object of canonical obedience in this capacity. However, the Monarch is not referred to in Canon C1(3). The Monarch’s ecclesiastical supremacy, like the office of churchwarden, is of post-feudal origin. Instead Canon C13(1) requires all ecclesiastical officeholders and ordination candidates to take the oath of allegiance to ‘be faithful and bear true allegiance to [the Monarch], her heirs and successors, according to law’. This underlines the point that the bishop’s superiority over his clergy is limited by law.
Thus English clergy owe obedience to their bishop, but subject to their allegiance to the Monarch. In the Roman Catholic Church, clergy are required to show ‘reverence and obedience’ both to their bishop and to the Pope (Code of Canon Law 1983, Canon 273). This makes the point that a Catholic bishop shares his authority over his diocese with the Pope, on account of the latter’s office ‘uniquely committed by the Lord to Peter’ (cf Canon 331). The Pope is not merely the bishop’s feudal superior.
Roman Catholic clergy are expected to ‘accept and faithfully fulfill’ any responsibility entrusted to them by the Church authority (Canon 274.2). However, a priest who disputes his bishop’s decision on a particular responsibility has recourse to Rome, a process which resembles judicial review in English law (see Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.205). The modern Roman Catholic doctrine of canonical obedience therefore resembles the English doctrine, being ‘restricted to those matters that are prescribed by … law’ (op. cit, p.201).