W Adam, ‘The Curious Incident of the Homicidal Archbishop: The Dispensation Granted to Archbishop George Abbot, 1621’ (September 2015) 17 Ecclesiastical Law Journal, p.306.
This article, just published, is an important contribution to the study of ecclesiastical law, in particular its relationship with canon law. As the learned author points out, the case of Archbishop Abbot, though well known to history, is virtually unknown to ecclesiastical law. This scholarly legal account of the case is therefore especially welcome.
In 1621, when Archbishop of Canterbury, Abbot accidentally killed a gamekeeper while out hunting. This caused a flutter in ecclesiastical circles for a specific legal reason. Mediaeval canon law provided that, if an ordained minister unlawfully killed someone, he was ipso facto (i.e automatically and immediately) inhibited from officiating as such. Any official function performed by the minister while inhibited was therefore prima facie illegal or ‘irregular’. This rule survives in modern Roman Catholic law (see canons 1041.4 and 1044.1.3 of the Code of Canon Law 1983).
One of the principal functions of an Archbishop is, of course, the consecration (ordination) of new bishops. Four bishops-elect (including William Laud, Abbot’s successor as Archbishop of Canterbury) objected to being consecrated by Abbot, fearing that their consecrations would be irregular, and therefore ineffective to constitute them as Church of England bishops, on account of the mediaeval canon.
Abbot argued, with some justification, that the canon did not apply to his case. The inquest into the gamekeeper’s death had exonerated him. It found that the accident was caused by the gamekeeper’s own misadventure. However, Adam’s account indicates that Abbot, like the four bishops-elect, accepted that the mediaeval canon still had the force of law, notwithstanding the break with Rome nearly a century earlier.
If (God forbid) a modern Archbishop were to be involved in such a terrible accident, any disciplinary consequences would be regulated by the Clergy Discipline Measure 2003. However, there was no statutory regime concerning the discipline of bishops and Archbishops in the 17th century. The canons of 1603 are also silent on the subject.
The effect of the mediaeval canon was that an ordained minister who was guilty of homicide was automatically inhibited unless and until his ecclesiastical superior granted a dispensation, thus restoring him to the exercise of his orders. The Pope was the Archbishop of Canterbury’s superior before the Reformation. Thus a mediaeval Archbishop in Abbot’s predicament would have applied to the Pope for a dispensation.
The papal jurisdiction was, of course, abolished at the Reformation. The Ecclesiastical Licences Act 1533 provided that the Pope’s power to grant dispensations should in future be exercised by … the Archbishop of Canterbury! (s.3). The Archbishop could hardly grant a dispensation to himself. King James I settled the matter by appointing a commission of bishops and directing them to grant ‘a precautionary and excessive dispensation’ to Archbishop Abbot ‘concerning all irregularity and taint of irregularity, if perchance you have incurred any’. Adam’s erudite article includes an English translation of the full Latin text of the dispensation.
As Adam points out, this dispensation could not plausibly have been authorised by the 1533 Act. That Act regulated dispensations granted by the Archbishop, not to him. The Act does empower the Monarch to commission other bishops to grant dispensations, but only if the Archbishop wrongfully refuses to grant them (s.11).
But if, contrary to the view of the protagonists in Abbot’s case, the mediaeval canon no longer had the force of law then no dispensation was necessary. Adam refers to the Reformation legislation, which provided that mediaeval canons might continue in force, provided that they ‘be not contrary nor repugnant to the laws, statutes and customs of this realm, nor to the damage or hurt of the King’s prerogative royal’ (Submission of the Clergy Act 1533, s.7).
The purpose of the mediaeval canon, ridding the Church of homicidal clergy, is obviously just and reasonable. Of course a priest or bishop (or Archbishop) who culpably causes a person’s death should be inhibited from officiating – but how? The rule of ipso facto irregularity was extremely hurtful to the royal prerogative when applied to the Archbishop of Canterbury. English law jealously guarded the Monarch’s right to appoint bishops. The Archbishop of Canterbury is, of course, the senior bishop, the Primate of All England. Not only that, the Monarch requires the Archbishop to consecrate his episcopal appointees. The Archbishop is therefore the source of holy orders throughout the province.
If the rule of ipso facto irregularity applied to Archbishops and bishops, this would not deny the Monarch’s right to appoint them, but it could still cause grave difficulties. The Monarch might appoint an Archbishop or bishop, but the mediaeval canon could render the appointee incapable of officiating as such. The Archbishop might be incapable of consecrating the Monarch’s chosen bishops. The lawfulness of consecrations performed by the Archbishop might be put in doubt. This in turn might impugn the ordinations of priests by the bishops who had been consecrated by the Archbishop. The regularity of the entire ordained ministry might be undermined.
It is hard to accept that a rule of mediaeval canon law would be allowed to survive the Reformation, when it had such potentially devastating consequences for the reformed Church. If the rule remained in force, one would at least expect the law to confer a clear power on the Monarch (not just on bishops) to dispense from any irregularity in the exercise of the Archbishop’s function. There is no such power.
The silence of the canons of 1603 on the discipline of Archbishops also suggests that this was regarded as a matter for the Monarch’s jurisdiction.
Adam does not reach any definite conclusion on the legal force of the mediaeval canon. However, it is argued here that the canon did not survive the Reformation. The dispensation was granted to humour a few tender episcopal consciences. E Garth Moore relates that King James I ‘thought the whole matter ridiculous’ (Introduction to English Canon Law, 3rd edition 1993, p.135). Even if Abbot had been held responsible for the gamekeeper’s death, his ability to officiate as Archbishop of Canterbury, and to consecrate new bishops lawfully, would have continued unless and until King James inhibited him from doing so.