Holy Orders: Validity and Legality

by Philip Jones

Sacrament and Non-Sacrament

The distinction between the validity and the legality of holy orders was explained by Pope Leo XIII in Apostolicae Curae (1896):

‘If … a person has seriously and correctly used the due matter and form [of a sacrament], he is … presumed to have intended to do what the Church does … a sacrament is truly a sacrament, even if it is conferred through the ministry of a heretic, or of one who is not himself baptised, provided the catholic rite is used’ (para 33).

As is well known, the Pope concluded, in Apostolicae Curae, that the Church of England’s orders did not satisfy this test.  The essential reason was that the ‘form’ or rite of ordination contained in the 1662 Ordinal and its predecessors is not adequately worded to confer Catholic priesthood.  In the original Ordinal of 1549, the words of ordination were only ‘Receive the Holy Ghost’, without any reference to priesthood.  The clarifying words ‘Receive the Holy Ghost for the office and work of a priest‘ were not added until 1662, which was too late to repair the original defect.  Moreover the Ordinal does not clearly express, indeed it positively denies, the Catholic understanding of priesthood, in particular of the priest as  ‘sacrificer’, the minister of the Eucharistic sacrifice.

These defects necessarily mean that nobody who uses the Church of England rite can intend to ordain a Catholic priest.  He therefore cannot be ‘presumed to have intended to do what the Church does’.  If he had intended to ordain a Catholic priest he would have used a different rite.

However, Pope Leo did not hold that Anglican orders are invalid because the Church of England left the Catholic Church at the Reformation.  On the contrary, orders may be validly conferred outside the Catholic Church.

This conclusion was reaffirmed in the case of Archbishop Marcel Lefebvre, who was excommunicated in 1988 for ordaining bishops in breach of canon law.  Lefebvre’s ordinations were said to be valid but unlawful.

It must always be remembered that the distinction between the validity and legality of holy orders depends on the Roman Catholic doctrine that orders are a sacrament.  The Code of Canon Law 1983 makes clear that orders are one of ‘the [seven] sacraments of the New Testament, instituted by Christ the Lord’ (canon 840, reiterated in canon 1008).

English ecclesiastical law, by contrast, is clear that orders are not a sacrament as the 1983 Code understands this.  Article 25 states that baptism and ‘the supper of the Lord’ are the only two sacraments ‘ordained of Christ our Lord in the Gospel’.  The other five Catholic sacraments, including orders, ‘are not to be counted for sacraments of the Gospel … for that they have not any visible sign or ceremony ordained of God’. 

This means that the ‘valid but unlawful’ distinction of Roman Catholic law cannot be applied to English ecclesiastical law.  If a particular rite is not sacrament instituted by God, then it cannot be both valid and unlawful.  It can only be lawful or unlawful.  Its validity depends upon its lawfulness, because, lacking divine authority, it can have no other basis but human authority.  To be valid, a rite that is not a sacrament must possess an authority conferred or recognised by human law.

Article 23 strongly emphasises the importance of legality in ministry: ‘It is not lawful for any man to take upon him [ministerial] office … before he be lawfully called, and sent to execute the same … by men who have publick authority given unto them in the Congregation’.  There is no reference to any particular rite of ordination as the condition of a valid ministry.

Article 26 states that those with ‘authority in the ministration of the Word and Sacraments … do not the same in their own name but in Christ’s, and do minister by His commission and authority …’.

This suggests that human authority within the Church is an extension of Christ’s authority.  Ministers lawfully ordained by the Church are ordained by Christ.  The divine authority to exercise the ministry of Word and Sacrament is mediated through human authority.  However, the precise form of the ordination is not relevant, so long as it is conferred lawfully.

The form or rite of ordination is regulated by Article 34, which confirms that

‘Every particular or national Church hath authority to ordain, change and abolish, ceremonies or rites of the Church ordained only by man’s authority’.

Thus the 1662 ordination rite, and modern alternatives thereto, are indeed ‘rites of the Church ordained only by man’s authority’.

However, the Roman Catholic distinction between validity and legality has sometimes echoed within the Church of England in the modern controversy over female ordination.  ‘Traditionalists’ may suggest that, while Lefebvre’s ordinations were valid but unlawful, Anglican ordinations by or of women are lawful but invalid!  This is yet another example of the confusion which results from treating English ecclesiastical law as if it were part of canon law.

Legality and Illegality

In a recent article for the Ecclesiastical Law Journal, the Reverend Dr William Adam discusses the legal consequences arising from the appointment of a woman as diocesan bishop in the Church of Ireland (vol 16(2), May 2014, p.187).  Women may not, as yet, be ordained as bishops in the Church of England, and parishes enjoy a statutory right to veto the appointment of a female incumbent.  However, there is no English law to prevent male priests ordained by the Irish woman bishop from officiating anywhere in the Church of England.  The parish veto applies only to women priests, not to male priests ordained by a woman bishop.  Moreover, clergy from the Church of Ireland who wish to officiate in England are not subject to the Overseas and Other Clergy Measure 1967, and so do not require special permission from the two Archbishops.  (The 1967 Measure applies only to Anglican Churches outside the British Isles, not to the Anglican Churches in Wales, Ireland and Scotland.)    

Citing an opinion of the Legal Advisory Commission published in 2004, Adam points out that the 1967 Measure refers to recognition of the orders of Churches rather than orders conferred by individual bishops.  Canon C1, which was promulgated about the same time as the 1967 Measure, confirms that to be a ‘priest’ in English law, one must have been ordained in the Church of England, ‘or ha[ve] had formerly episcopal consecration or ordination in some Church whose orders are recognised and accepted by the Church of England’.

These modern authorities are entirely consistent with the requirements of the 39 Articles that any valid ministry must have lawful authority.  All the authorities point to the conclusion that there could never be an Anglican equivalent of the late Archbishop Lefebvre.  If a ‘rogue’ bishop purported to ordain priests without any authority other than his own episcopal orders, such ordinations would be invalid.  This is because they would contravene the fundamental principle of Article 23, that those who administer and receive ordination both require ‘publick authority given unto them in the Congregation’.   They could not be valid just because the rogue bishop used an authorised ordination rite, or that he intended to do what the Church does.  

It must be admitted, however, that there is little case law on irregular ordinations, and this is inconclusive.  In Bishop of Natal v Gladstone (1866) Law Reports Equity 1, the Bishop sued the trustees of the Colonial Bishoprics Fund (of whom Gladstone was one) for payment of his stipend, which they had withheld.

The Bishop had been consecrated by the Archbishop of Canterbury and sent to Natal, South Africa, under the authority of letters patent of the Crown.  The problem was that the letters patent were issued without the authority either of the Westminster Parliament or of the South African colonial legislature.

The Fund had been set up to pay the stipends of colonial bishops.  However, the trustees argued that, because the letters patent did not have statutory authority, either in Britain or South Africa, the Bishop’s appointment was a nullity.  He was not really the Bishop of Natal and so any payment to him out of the Fund would be in breach of the trust.

The Court held that the Bishop was a bishop of the Church of England, because he had been consecrated by the Archbishop on the mandate of the Crown.  The Crown did not require statutory authority to order the consecration of a new bishop.  It had power to do so under the Royal Prerogative.

This case tends to support the view that the validity of an ordination in English law is dependent on its lawfulness.  As the court said, if the Archbishop had consecrated the Bishop without the royal mandate, the consecration would have been unlawful, and the Bishop would certainly not have been a bishop of the Church of England.  However, the court specifically declined to speculate as to ‘what his peculiar status in the Catholic Church of Christ might be’ (p.47).

In Bishop of St. Albans v Fillingham (1906) Probate 163, the ecclesiastical court disciplined the Rev Mr Fillingham after he purported to ordain a non-conformist minister as priest, using the 1662 Ordinal with certain variations.  The court held that such action was ‘an usurpation … of powers which belong to the Christian society itself and … an act of rebellion against the organisation and discipline of the Church of England’ (p.179).  This dictum echoes Article 23.  However, Mr Fillingham was not a bishop, only a priest.  The charge against him was ‘purporting to ordain a priest without himself being a bishop’ (p.176).

The case of Macmanaway (1951) Appeal Cases 161 concerned a priest of the Church of Ireland who got himself elected to Parliament.  However, the law then in force provided that any person ‘having been ordained to the office of priest or deacon’ was ipso facto disqualified from election to Parliament.

The Privy Council confirmed that the Rev Mr Macmanaway was indeed disqualified.  It was not relevant that he belonged to a disestablished Church rather than to the Church of England: ‘any ordination that can properly be described as episcopal is a valid admission of a person to the order of priest or deacon … whether within or without the Church of England’ (p.173).

This dictum may support the view that an episcopal ordination may be valid even if unlawful, just so long as it is recognisably episcopal.  However, it must be remembered that Mr Macmanaway’s priestly orders were not questioned in the case.  It was not suggested that he had not been ordained, or that his ordination had contravened either English law or the constitution of the Church of Ireland.  The only issue was whether the legal prohibition on priests and deacons being elected to Parliament applied only to Church of England ordinations, or to ordinations in other episcopal Churches.

Apart from Apostolicae Curae and the Lefebvre case, there seems to be little Roman Catholic jurisprudence concerning the validity or legality of ordinations.  The Catholic Church has an annulment procedure for ordination (canons 1708-12), just as it has for marriage but, unlike the marriage annulment procedure, it is rarely used (The Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.1019).