ecclesiasticallaw

Ecclesiastical law

Month: August, 2016

Cathedral Governance: A Constitutional Monstrosity

Kathleen Edwards, The English Secular Cathedrals in the Middle Ages (Manchester University Press, 2nd edition 1967)

This is a most helpful commentary on the confused subject of cathedral governance.  It explains the cause of the confusion, and also demonstrates how little the subject has changed since the middle ages.

The constitution of a cathedral church ought to be a simple thing.  Everyone knows that a cathedral is so called because it contains the cathedra, the official seat of the bishop.  The bishop’s relationship to the cathedral is analogous to that of an incumbent to a parish church.  The bishop is the incumbent of the diocese.  The cathedral is the bishop’s church, the church from which he officiates as bishop.  It is therefore the parish church, or ‘mother church’, of the whole diocese.  The proper function of any other cathedral clergy is to assist the bishop with his official duties, just as the curate assists the vicar.

But of course the constitution of an English cathedral is not nearly so simple.  Edwards relates that ‘the [mediaeval] bishop was more and more drawn away from his cathedral city, both on affairs of state and through … looking after a large diocese.  During his long absences there began to develop some sort of home government among the cathedral clergy’ (p.98).

Thus the cathedral chapter obtained a degree of autonomy from the bishop.  The absent bishop’s place at the head of the chapter was taken by the dean (cf.p.137).

Edwards quotes a graphic and prescient early warning against this separation of bishop and chapter, dating from 1313: ‘the bishop and the chapter … make one body, of which body the bishop is the head and the chapter are the members.  Therefore to argue that the dean is another head is to argue two heads in one body, which is like a monster, and prejudicial to the bishop’ (quoted, p.97).  Needless to say, this powerful argument was not accepted at the time, or subsequently.

However, the mediaeval separation of bishop and chapter makes the point that the bishop’s position is not precisely analogous to that of a parochial incumbent.  The bishop has a power of governance which incumbents do not share.  He is the principal ordinary of the diocese, and also has some responsibility for secular governance, through membership of the House of Lords (canon C18(2) and (8)).

In the old days, such responsibilities necessitated lengthy absences from the cathedral, but the cathedral still had to function without the bishop.  So perhaps the chapter had to have some autonomy then.  Of course, modern transport and communications should make it possible for the bishop to govern both the diocese and the secular state without prolonged absence from the cathedral.  (And bishops usually live right next door to their cathedrals.)  However, these improvements have not, as yet, led to the constitutional reunion of bishop and chapter.

The cathedra is always situated in the choir area of the cathedral.  It is generally an ornate and imposing structure, as befits the ‘principal seat and dignity in the cathedral’ (Cathedrals Measure 1999, s.6(1)).  It is often regally described as the bishop’s throne, an allusion to the power of governance.  However, Edwards points out that cathedra also means a professorial teaching chair (p.177).  Thus the cathedra symbolises not only the bishop’s governance, but also his pastoral function of teaching and guiding.

Moreover, the bishop did not exercise the power of governance in the choir.  The choir was a place of worship, where the Divine office was celebrated.  Governance was done in the chapter house.  (The consistory court would meet in the chapter house.)

The separation of bishop and chapter did not affect the bishop’s liturgical position in the choir.  The bishop continued to enjoy an undisputed precedence at all services at which he was present, and to exercise his pastoral ministry of preaching, ordaining and confirming.

However, the chapter house, as the seat of governance, became the subject of competing claims by the bishop and the chapter.  These claims were settled by the constitution of the particular cathedral.

In the middle ages, the chapter had two functions:

(1) governing body of the cathedral (as it still is) and

(2) bishop’s council, which he consulted about the governance of the diocese.

In other words, the original function of the chapter was to assist the bishop’s governance of both the cathedral and the diocese.

Cathedral constitutions could vary widely.  At Chartres Cathedral, apparently, ‘the bishop was not allowed to enter the chapter house on any pretext’ (p.106).  York Minster ‘denied to its bishop all statutory right to sit in chapter’.  However, most cathedral constitutions gave their bishop some say in the governance of his cathedral.

The competing claims of bishop and chapter were generally resolved as follows:

(1) the bishop had no right to attend ordinary meetings of the chapter, because he was not a member of the chapter

(2) however, the bishop could attend chapter meetings on a visitation, i.e an inquiry into the governance of the cathedral, if he had a constitutional right of visitation in the first place.  Bishops generally did have the right to inquire into the governance of their cathedrals, but the right might be limited in various ways, e.g to particular times or occasions.

(3) the bishop could also convene and preside over the chapter qua bishop’s council, in order to consult it about the governance of the diocese, rather than the cathedral.

Today, of course, the cathedral chapter has no responsibility for the governance of the diocese.  The bishop’s council is now a committee of the diocesan synod, which is completely different from the chapter (Synodical Government Measure 1969, schedule 3.28).

Thus the constitutional separation of bishop and chapter eventually resulted in the constitutional separation of the cathedral from the rest of the diocese.  Yet this separation is hardly consistent with the cathedral’s role as the ‘mother church’ of the diocese.

Nothing illustrates the confused state of cathedral governance so starkly as the position of archdeacons therein.  The function of archdeacons is to assist the bishop’s governance of the diocese within their respective archdeaconries (canon C22(2) and (4)).  But archdeacons, qua archdeacons, have no responsibility for the cathedral.

Edwards notes that ‘The place of archdeacons in secular cathedrals in the middle ages was peculiar … their chief work was in their archdeaconries outside the cathedral precincts’ (p.243).  She suggests that ‘in most mediaeval cathedral churches archdeacons had come to be regarded as the bishop’s official guests, to be treated with the honour due to guests’ (p.249).

Yet archdeacons can be ex officio members of the chapter, even though the bishop, whose diocesan governance they assist and whose church the cathedral is, cannot.  The Cathedrals Measure 1999 further provides that archdeacons, and suffragan bishops too, must be ex officio members of the college of canons established by the Measure for every cathedral (s.5(2)).  But the diocesan bishop is still excluded from ex officio membership of the college.  Not monstrous, perhaps, but all rather absurd.

The Cathedrals Measure 1999, and the bishop’s status as visitor of the cathedral, are discussed in separate posts, filed below.

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Baptism: Sin, Sacrament, Sacrilege and Salvation

‘Baptism, where it may be had, is necessary to salvation’ (Church in Wales Prayer Book 1984, rubric)

Sin

Protestantism started from a deep consciousness of sin.  Of course, human beings commit grave actual sins, but the problem is worse than that.  The whole human race, the human condition per se, is innately sinful.  It suffers from original sin, also called birth sin.  Article 9 sternly teaches that ‘in every person born into this world, it [birth sin] deserveth God’s wrath and damnation’, even though a new-born baby is incapable of actual sin.

The remedy for this seemingly hopeless condition is faith, faith in the redeeming love of God.  Article 11 is reassuring: ‘that we are justified by faith only (sola fide) is a most wholesome doctrine, and very full of comfort …’.

Yet the comfortable doctrine created a difficulty.  If human beings are saved by faith alone, then baptism and the other sacraments are prima facie superfluous.

Article 27 seeks to reconcile baptism with justification sola fide.  It suggests that baptism is to some extent dependent on the faith of the recipient: ‘they that receive baptism rightly are grafted into the Church …’.  Baptism certifies the faith of the believer: ‘the promises of forgiveness of sin, and of our adoption to be the sons of God … are visibly signed and sealed; faith is confirmed and grace increased by virtue of prayer‘.

This may suggest that baptism is for adults only.  It should only be administered when the candidate is of sufficient age and understanding to make a personal act of faith.  However, Article 27 affirms that ‘The baptism of children is … to be retained … as most agreeable with the institution of Christ’.  From its first publication in 1549 until 1662, the Book of Common Prayer made no provision for the baptism of adults, only infants.  (Ronald Knox, a Catholic convert, once scoffed that ‘Quakers and Baptists are the only truly logical Protestants’.)

Whatever their ambivalence about baptism, the 39 Articles are unequivocal in their condemnation of relativism: ‘They … are to be had accursed that presume to say, that every man shall be saved by the law or sect which he professeth … For holy Scripture doth set out … only the Name of Jesus Christ, whereby men must be saved’: Article 18.

Sacrament and Sacrilege

The rubrics of the Book of Common Prayer lay down 2 rules about baptism:

(1) it must not be repeated and

(2) subject to emergencies, it should be administered in church.

Canon law (i.e Roman Catholic law) is clear that baptism cannot be repeated because it imprints an indelible character on the recipient (Code of Canon Law 1983, canon 845(1), also canon 849).  To attempt to repeat a valid baptism is sacrilegious, because it denies the indelible character of the original baptism.

However, conditional baptism is allowed if there is a ‘prudent doubt’ about the validity of an earlier baptism (canon 845(2)).

The rubrics follow Catholic doctrine in providing that a child baptised privately ‘is lawfully and sufficiently baptised, and ought not to be baptised again in the church’.  The priest had to check that the child was indeed baptised: ‘if they that bring the infant to church do make such uncertain answers to the priest’s questions, as that it cannot appear that the child was [validly] baptised’, then the priest must baptise conditionally: ‘If thou art not already baptised, N, I baptise thee etc’.

The public baptism service formerly required the priest to check that the child was not baptised already, before administering the sacrament (rubric).

Baptism may be validly administered by anyone, not just an ordained minister.  As the Court of the Arches pointed out, ‘if lay baptism had been considered as one of the errors of the Romish Church, it would have been corrected [at the Reformation]’ (Kemp v Wickes (1809) 161 English Reports 1320, p.1326).  The Court later affirmed that ‘The law of the Church is beyond all doubt that a child baptised by a layman is validly baptised’ (Mastin v Escott (1841) 163 English Reports 553, p.586).

Home baptism seems to have been widespread until as late as the 19th century.  High infant mortality is one obvious explanation.  In the middle ages, priests were required to warn expectant mothers to ‘have water ready prepared to baptise the child if necessity shall so require’ (Lindwood Provinciale Book 1, Title 11, chapter 2).  However, in the case of Bennett v Bonaker (No.2) (1829) 162 English Reports 1066, the Court of the Arches noted disapprovingly that ‘It has become … a sort of fashion to have … children christened in their houses instead of at church and … too many of the clergy comply with [this] practice …’ (p.1075).

Unofficial baptism is valid in principle, but, as the rubrics indicate, its validity may be doubtful in practice if administered by an unauthorised and uninstructed minister and without reliable witnesses.  It may also be corrupted by superstitious or pagan practices.

Moreover, baptism confers membership of the Church.  The baptised is thereby ‘grafted into the body of Christ’s Church’.  For this reason baptism should be administered publicly, in facie ecclesiae, ‘on Sundays or other Holy Days at or immediately after public worship when the most number of people come together’ (canon B21).  Even after a private baptism, the child ‘shall be brought to the church and there, by the minister, received into the congregation of Christ’s flock’ (canon B22(8)).

Possession of a baptismal font was once regarded as the legal test for determining that a building is a parish church and therefore a place of public, rather than private, worship.  The font is traditionally located by the door, at the opposite end of the building from the altar, to symbolise the sacramental entry into the Church.

Canon F1(2) follows tradition by laying down a general rule that the font ‘shall stand as near to the principal entrance [to the church] as conveniently may be’, though a faculty may permit the location of the font elsewhere in the church.  Canon 81 of 1603 required ‘a font of stone … to be set in the ancient usual places’.

(There is an amusing twist here.  The older ecclesiastical law insisted that the font be made of stone, but also insisted that the altar or ‘communion table’ should not be made of stone.  The modern law allows that the altar may be made of stone, and that the font need not be.)

Ecclesiastical law makes provision for the sanctity of baptism.  Canon F1 provides that the font must be ‘decent’ and have ‘a cover for the keeping clean thereof’.  Moreover, the font must be used exclusively for baptism, ‘and for no other purpose whatsoever’.

The mediaeval Church was not concerned only with cleanliness: ‘The baptising font must be kept close under lock, for fear of witchcrafts‘ (Lindwood Book 3, Title 25, chapter 1).  Water used for emergency baptism ‘[should] for the reverence of baptism either be poured into the fire or  be brought to the church to be poured into the font, and let the vessel be burned or deputed to the church’s use’ (Title 24, chapter 1).

Access to the altar is via the font, but the baptised must still make the journey from the font to the altar.  Canon law holds that baptism is a necessary precondition to valid reception of all other sacraments.  Baptism is the ‘gate’ (ianua) of the sacraments (1983 Code, canon 849).  In the Catholic Church, of course, there are six other sacraments besides baptism, but in the Church of England only one, ‘the Supper of the Lord’ (Article 25).  English law is clear that only the baptised may be admitted to holy communion (cf canon B15A).

However, the legal relationship between baptism and marriage is confused.  The report The Canon Law of the Church of England (1947) proposed a new canon that ‘No minister shall allow matrimony to be celebrated in his church between two persons neither of whom has been baptised: and if … one of [them] has not been baptised … shall refer the matter to the Bishop … [for] his order and direction’ (p.126).  This canon was rejected for fear that it infringed the common law right of unbaptized parishioners to marry in their parish church.

It is argued that this fear was misplaced.  It ignored the font at the entrance to the church.  The common law right originated at a time when marriage was still a sacrament, therefore accessible only by baptism, and when only baptised persons were married in church.  The Prayer Book marriage service clearly assumes that the couple will both be baptised, for it provides that they ‘should receive the holy communion at the time of their marriage, or at the first opportunity after …’.  The Marriage Act 1753 required marriages to be solemnised in the parish church, but excepted Quakers and Jews from this requirement, because they were not baptised.  This implies that church marriage is for baptised persons only.

Moreover, ecclesiastical law (like canon law) formerly denied Christian burial to the unbaptised (cf canon B38(2)).  It is illogical that an unbaptised person should be entitled to a church wedding but denied a church funeral.  (However, the illogicality has been cured.  An unbaptised person may now have a church funeral.)

Salvation

The Prayer Book Catechism seems to affirm the Catholic doctrine that baptism, not just faith, is necessary to salvation.  Baptism makes the recipient ‘an inheritor of the Kingdom of Heaven’.  It brings ‘A death unto sin, and a new birth unto righteousness’.

Private baptism ‘in tyme of necessitie’, i.e if the infant was in danger of death, was retained in the Prayer Book.  This also implies a link between baptism and salvation.  Baptism is considered necessary, even though the dying infant is too young to have committed any actual sin.

The fault-line between justification sola fide and salvation through baptism was exposed in the famous Victorian case of Gorham v Bishop of Exeter (1849-50).  The Rev Mr Gorham apparently doubted that baptism ipso facto imprints an indelible character.  He held that ‘the grace of regeneration [rebirth] does not so necessarily accompany the act of baptism, that regeneration invariably takes place in baptism … [regeneration] may be granted before, in or after baptism … baptism is an effectual sign of grace … but only in such as worthily receive it …’ (Phillimore Ecclesiastical Law, 2nd edition 1895, p.496).

The Bishop refused to institute Mr Gorham to a benefice because of these doubts.  He was supported by the Court of the Arches.  However, the Privy Council controversially overruled them both, and ordered Mr Gorham’s institution.  Its conclusion was that English law does not deny the indelible character of baptism, but does not insist on it either.  There is liberty of belief in the matter.

The Catholic Church does not, of course, hold that faith is irrelevant to baptism.  On the contrary, the recipient of baptism is required to co-operate in the work of salvation.  This is the reason for the promises required at public baptism, to ‘renounce the devil and all his works, … and constantly believe God’s holy Word, and obediently keep His Commandments’.

Canon law therefore makes it a condition of baptism that ‘there be a realistic hope that the infant will be brought up in the Catholic religion: if such a hope is altogether lacking, the baptism is to be deferred (differatur)’ (canon 868(1), avoiding the word ‘refused’).

Modern English law has again followed canon law in emphasising the importance of co-operation with baptism.  In the 20th century, clergy became concerned that baptism was becoming a mere social convention, an occasion to celebrate the baby’s birth and show it off to family and friends, but with no intention of observing the baptismal promises and bringing the child up as a Christian.

Canon B22(3) of the revised Canons of the Church of England therefore requires the minister to instruct parents in their responsibilities.  Canon B23(2) provides that godparents must be ‘persons who will faithfully fulfil their responsibilities both

[1] by their care for the children committed to their charge and

[2] by the example of their own godly living’.

A clergyman is protected from disciplinary action if he refuses or delays baptism from concern that co-operation with the sacrament will not be forthcoming.  The parents may refer the matter to the bishop, who must first consult the clergyman and then ‘give such directions as he thinks fit’ (canon B22(2)).  (This is discussed further in the post ‘Baptism and Godly Living’, which is filed below.)

Modern ecclesiastical law rightly provides for the co-operation of parents and godparents in the child’s baptism, but, like the older law, it assumes that parents will want to have their child baptised in the first place.  The 20th century concern may seem anachronistic now.  The children who were baptised then, whether for social or religious reasons, now decline to have their own children baptised at all.  When congratulating devout elderly churchgoers on the birth of a grandchild, the author of this blog has learned not to make any reference to christening, for fear of the embarrassed silence that often follows.

Parents may decline baptism out of indifference, or outright rejection of religion, but a more insidious reason may be advanced: the children should be free to decide for themselves whether they want to be baptised and go to church, when they are old enough to do so.

Such parents are asserting their right, and maybe their duty, to decline baptism for their child, in order to preserve the child’s right to choose whether or not to be baptised later on.  This sounds plausible because it is in harmony with the prevailing secularist conception of human rights, according to which religious belief and practice are no more than an individual lifestyle choice.

Such a muddle-headed concept of religious freedom is, of course, highly conducive to secularism.  It implies that there is something wrong with infant baptism.  And very few people who are denied baptism as infants are likely to seek it in later life.

If baptism really is necessary to salvation, no loving parent would refuse it and leave the child to make its mind up later.  No more than refuse inoculation against a dangerous disease in the hope that the child will not catch it.  But in a secular, pluralist society, either there is no such thing as salvation, or everybody is saved regardless of faith and baptism.  The Protestant fear of sin and Catholic hope are both lost.

What can ecclesiastical law do if parents do not want to have their children baptised?  In practice, virtually nothing.  We have to admit, of course, that parents cannot and should not be forced to have their children baptised (in the way that they can be forced to send their children to school).

Canon B26(2) exhorts ‘All parents and guardians [to] take care that their children receive [religious] instruction’, but the revised canons do not seem to impose any duty on them to have their children baptised.  Ecclesiastical law formerly required the clergy to ‘often admonish the people that they defer not the baptism of their children …’, but this rubric was removed by the Prayer Book (Further Provisions) Measure 1968, s.3(2).

Though ineffectual in practice, ecclesiastical law may at least inform the confused and secularist-dominated debate about religious freedom:

(1) Baptism, above all, proves that religion is corporate and public, not merely individual and private.  Nobody can baptise himself.  Baptism is administered by the Church and it confers membership of the Church.  It therefore proves that the Church exists.  Though uncertain of its precise effect, English law is clear that baptism is ‘ordained of Christ our Lord in the Gospel’ (Article 25).  If baptism is Divinely ordained, then so is the Church which administers it.  Therefore the Church cannot be reduced to a mere private contract between individuals.

(2) If baptism is ordained of God, if it is God’s Will for everybody, then there cannot be a human right to choose whether or not to be baptised.  Such a right blasphemously subordinates Divine ordination to mere human choice.  It reduces baptism to the level of a political or consumer choice (which party to vote for in the election, which bank to get a loan from).

(3) However, a person does have a right not to be baptised against his will.  The distinction between a right (1) to choose whether or not to be baptised and (2) not to be baptised against one’s will may seem a fine one, even non-existent.  However, it is argued that the distinction is critical, because it brings the human right into alignment with the Divine ordination of baptism.  It is also consistent with the rite of baptism, which assumes the cooperation of the recipient, either personally or vicariously through parents and godparents.

(4) Of course, an infant cannot be baptised against its will.  The Divine ordination of baptism, and the affirmation of Article 27 that infant baptism is ‘most agreeable with the institution of Christ’ make clear baptism is the infant’s right.  It is therefore the duty of parents to give effect to the child’s God-given right to be baptised, not to deny it in favour of a non-existent right to ‘choose’.

The Great Schism 1378-1417: Beyond Canon Law

The Great Schism marked the end of the ‘classical’ canon law period that had begun c.1140 with Gratian’s Decretum.  No originality is claimed for what follows.  It is merely a narrative of the historical facts from a legal perspective, drawing on the commentaries cited at the end.

Avignon

The Holy See made a confident entry into the 14th century.  Pope Boniface VIII (Pope 1294-1303) ‘occasionally dressed up in imperial insignia, boasting that he was emperor no less than pope’ (Kelly).  He uncompromisingly asserted papal supremacy in his famous bull Unam Sanctam (1302): ‘The temporal sword is in the power of Peter … It is absolutely necessary for salvation that every human creature be subject to the Roman Pontiff’.  He proclaimed the first Holy Year of Indulgence in 1300.

However, the Holy See’s political position was always precarious, to an extent that is unthinkable today.  Imagine if the present Pope were taken prisoner by a hostile state, or forced to leave Rome because of public hostility.  Yet such events were occupational hazards for his mediaeval predecessors.  The ink was barely dry on Unam Sanctam when Pope Boniface was imprisoned by the King of France.  He was later rescued, but died a broken man.

The city of Rome was ‘wretchedly unsafe’ on account of faction-fighting between the leading Roman families (Renouard).  Boniface’s successor, Bl Benedict XI (Pope 1303-1304), therefore sought safety outside Rome, but he died after only a few months.  The cardinals then elected Clement V (Pope 1305-1314), a Frenchman who was very much   under the King of France’s influence.  After moving around Provence and Gascony he finally settled at Avignon in 1309.

Avignon was not actually in ‘France’ at this time, in the sense that it did not belong to the French crown, but to the King of Naples (who was formally, and confusingly, entitled ‘King of Sicily‘).  The King of Naples/Sicily was nominally a vassal of the Pope.  Avignon also had the advantages of political stability, a pleasant countryside and climate, and access to the sea.

There were 7 Avignon popes in all.  All were French.  The move to Avignon was intended to be temporary at first, and the French popes all professed a vague desire to return to Rome some day.  The tombs of the Apostles were still at Rome, of course.  A second Holy Year was celebrated in 1350.  However, as Rome became ever more dilapidated and politically unstable for lack of effective papal government, so the prospect of returning there from beautiful Avignon became less and less appealing.

Pope Benedict XII (Pope 1334-1342) began construction of the Palais Vieux at Avignon.  Before then, popes had resided in the local bishop’s palace or in a monastery.  A purpose-built papal palace naturally gave an air of permanence to the ‘Babylonian captivity’ at Avignon.  Benedict’s worldly successor, Clement VI (Pope 1342-1352), built the sumptuous Palais Neuf for himself.

Then Bl Urban VI (Pope 1362-1370) showed serious interest in a return to Rome.  He required bishops to reside in their dioceses, so had to set a personal example.  He also sought reunion with the Greek Church, and could not credibly do this from outside Rome.  In the face of strong opposition from cardinals and curia he entered Rome in 1367 and stayed for 3 years in the Vatican.  (The Lateran palace had become uninhabitable, and no pope lived there again.)  There he received both the Holy Roman Emperor and the Byzantine Emperor.  However, he returned to Avignon just before his death.

The last Avignon pope, Gregory XI (Pope 1370-1378), delayed a permanent return to Rome for many years, but ‘saw the hand of God in the arrival of St Catherine of Siena at Avignon to urge his return’.  Curial opposition had not diminished (‘If only the mountains would move and stop our journey!’ one official prayed), but in 1377 Pope Gregory at last arrived in Rome.

The Disputed Election

After 70 years of papal absence the Eternal City was in a grievous state.  The people of Rome also bitterly resented French control of the papacy.  Such was the anti-French hostility that Gregory XI found it necessary to leave Rome, only a short time after he had arrived there, for Agnani.  He died just a year after his return from Avignon.

The Romans were adamant that the next pope should be ‘a Roman pope, or at least an Italian’.  That was the popular slogan.  In this hostile atmosphere the French cardinals who were to elect Gregory’s successor had good reason to feel uncomfortable, even frightened.  The conclave itself was invaded by the mob.  The cardinals had to pretend that an elderly Roman cardinal had been elected Pope.  Placated, the mob withdrew.

However, the cardinals really did elect a new, and Italian, pope, Urban VI (Pope 1378-1389).  The day after the incursion of the mob, they returned to the conclave to confirm the election.  They also publicised the election to the world, and officiated at the new Pope’s coronation.  For several weeks they assisted him (or tried to) in his official duties.  Only then, several weeks after the election and coronation, did the Great Schism begin.

It began when the French cardinals started to withdraw to Agnani.  There they pronounced the election invalid for duress.  If the election was invalid, this meant that Urban VI was not really Pope, so the Holy See was still vacant.  On this basis, the cardinals purported to elect a new pope.

However, the cardinals’ claim of duress is not supported by the known facts.  Commentators have rejected it: ‘the existing evidence would seem to show decisively that the undoubted pressure of the Roman populace [to elect an Italian pope] was not such as to incapacitate a body of reasonably honest and courageous men’ (Obolensky, p.416).  The cardinals’ conduct towards Urban VI after his election was inconsistent with their claim that they had elected him against their will, under threat from the mob.  Their repudiation of the election came too late to be credible.

The real reason for the cardinals’ desertion of Pope Urban was his appalling treatment of them.  The Holy Father suffered from a ‘great lack of self-control’ (Ullmann, p.45).  His ungovernable rages ‘made his face red and his voice hoarse’.  The cardinals were understandably aggrieved when he ordered them to eat only one course at meals, and worse was to follow.  There is no certain explanation for Urban’s behaviour, but ‘his unexpected elevation seems to have upset the balance of his mind.  He became very unstable, and subjected [the cardinals] to violent abuse and uncontrollable tirades’ (Kelly).  The abuse was physical as well as verbal.  He had one cardinal tortured in his presence, reciting the Divine Office so as to drown the poor man’s screams.

However, the cardinals did not attempt to declare the Holy See vacant on account of the Pope’s insanity, or to claim the power to make such a declaration.  Their desertion of Urban on account of his behaviour may be understandable.  But there were no legal grounds for disputing Urban’s title.  Mad and intolerable he may have been, but he was the Pope.  The cardinals’ action in purporting to elect a new pope was therefore schismatic.

After the French cardinals defected, Pope Urban grew madder and quarrelled with everybody.  Nevertheless, despite lengthy enforced absences from Rome, Urban remained in office till his death.  His successor, Boniface IX (Pope 1389-1404), strengthened papal control of Rome.  The French-led schism never gained a foothold there.

The Avignon Anti-Popes

The schismatic cardinals elected the most distinguished of their number as ‘Clement VII’.  The new anti-pope was actually Swiss, not French, and so could appear to rise above the French-Italian animosity.  He was personally more impressive than ranting, red-faced Pope Urban, but he was an evil man who lacked Urban’s excuse of madness for his crimes.  (When papal legate he had barbarously ordered the massacre of the inhabitants of a rebellious town.)  Most of the Roman curia defected to him.  Unable to enter Rome, ‘Clement’ returned to Avignon.  There he established an efficient administration and a glittering court.

Europe reacted to the Schism on political and national lines.  The Emperor recognised the Roman papacy, as did England.  France and her allies, including Scotland, recognised Avignon, as did Spain.  The Queen of Naples also supported Avignon when she quarrelled with Urban.  However, Italian public opinion, always resentful of any French claim to the papacy, remained consistently hostile to Avignon, whatever the political upheavals in Rome and Italy.

The Schism

Fortunately the Schism was a relatively peaceful, civilised affair.  Unlike the Reformation it did not start any wars or create any martyrs.  Those on the losing side, or losing sides, were treated magnanimously.  St Vincent Ferrer’s long and close association with Avignon (he was the anti-pope’s confessor) did not prevent his fairly rapid canonisation, though he submitted to Rome shortly before his death.

The confusion and disruption caused by rival papacies can be exaggerated.  The religious practice of the Latin Church (Divine Office, sacraments, popular devotions) continued undisturbed.  As the Schism followed existing secular divisions and jurisdictions this meant in practice that the Church within a particular jurisdiction acknowledged the same pope as the local ruler acknowledged.  Thus lesser clergy and laypeople were not much affected by it.  Two great English writers of the period, Geoffrey Chaucer and Mother Julian of Norwich, apparently do not even mention the Schism.

However, religious orders suffered from the Schism.  Unlike the secular Church they were constituted on a supranational basis.  Authority within them was usually centralised in a single superior or general chapter.  The division of the papacy therefore forced the centralised religious orders to divide as well.

The intellectual and political elites of Europe (secular rulers, universities, bishops, even the cardinals and curias of Rome and Avignon themselves) were scandalised by the Schism.  Rival papacies were, of course, incompatible with the God-given unity of the Church.  The Schism also discredited the Holy See’s claim over the Greek Church, and the Christian cause against Islam.

From the outset, therefore, there was strong elite pressure on the rival popes to end the Schism.  Reconciliation was impossible while mad Pope Urban reigned.  His death, and the election of a more suitable successor, undermined the anti-pope’s cause.  French support for Avignon weakened, and was even withdrawn altogether for a time (1399-1403), though it was later restored.

In principle, even the rival popes accepted the imperative of reconciliation.  Candidates for both papacies made solemn promises that, if elected, they would abdicate if this would facilitate reconciliation.  However, the promises were not kept.  The second and last Avignon anti-pope, ‘Benedict XIII’, was notoriously obstinate and has been condemned as ‘the principal cause of prolonging the Schism’ (Renouard, p.76).  For their part, the Roman pontiffs, conscious of their legitimacy, were reluctant to make concessions to Avignon.

Conciliarism

There were 2 proposals for ending the Schism:

(1) the via cessionis, inducing one or both rival popes to abdicate and

(2) the via concilii, superseding the rivals by a General Council (Obolensky, p.417).

Intellectually, the Church was not completely unprepared for the crisis of 1378.  The authority of the General, or Ecumenical, Councils of the Church, and their relationship to the Holy See, were much discussed by mediaeval canonists.

Surprisingly, perhaps, the deposition of the Pope, his involuntary removal from office, was by no means a taboo subject in mediaeval canon law.  There had long been a consensus among canonists that the Pope could be deposed for heresy.  The problem was how.  Canon law was unable to supply a procedure for effecting deposition (Tierney, p.96).

In principle, therefore, the Pope might be deposed for heresy by a General Council, but only the Pope could lawfully convene the Council in the first place.  If someone other than the Pope were to take the initiative and summon a Council, the summons and the Council would be invalid, as would any acts of the Council.  This may suggest that a heretical pope would have to consent to his own deposition.  Then again, if the Pope was a heretic, perhaps he would already, ipso facto, have lost his papal authority and would therefore be unable to depose himself!

The Great Schism created the additional problem of two rival popes.  Only the rightful Pope could summon a Council.  Gratian had anticipated this problem.  His solution was that ‘he alone shall remain in the papal chair whom the consensus universitatis [i.e the whole of Christendom] had elected’ (Ullmann, p.197).  But this ran into the same procedural difficulty that prevented the deposition of a heretical pope.  How could the consensus universitatis be lawfully articulated, so as to make a lawful election?

The inability of both canon law and the rival popes to resolve the Great Schism encouraged more radical thinking about the papacy itself.  (The deeply unattractive personalities of the rivals may also have encouraged this.)  The Schism ‘[made] men think more seriously about the institution [of the Church] … slowly there formed … the conviction that unity must be fought for, whatever the existing law of the Church might say’ (Jacob, p.7).

The intellectual movement known as conciliarism had many different variations.  None went so far as to reject papal authority altogether, as happened at the Reformation.  However, all versions proposed some constitutional limitation of papal authority by a General Council, perhaps through the agency of the College of Cardinals, or secular rulers.  Conciliarism, like canon law, saw the Church as a corporation, or hierarchy of corporations.  Unlike canon law, it held that papal headship was, to a greater or lesser extent, subject to the consent of the whole Church, the fidelium congregatio, as represented in General Councils.

Dissatisfaction with the Pope and the papacy was not new, of course.  Nor was resentment of the papal claim of plenitudo potestatis over the Church.  Conciliarism was not created by the Great Schism.  It had ‘penetrated academic circles many years before 1378’ (Obolensky, p.418).  It had been proposed, in a radical form, by William of Ockham (c.1285-1347) and Marsilius of Padua (1275-1342).

There were 3 practical manifestations of conciliarism in the 15th century:

(1) the Council of Pisa (1409)

(2) the Council of Constance (1414-1417)

(3) the Council of Basle (1431-1449)

Pisa (1409)

Pope Gregory XII (Pope 1406-1415) broke his promise not to appoint new cardinals.  All but three of his original cardinals deserted him and made common cause with some disillusioned Avignon cardinals.  Together they called the Council of Pisa.

This Council was therefore the creature of a second schism in the Roman papacy.  The difference is that this time the cardinals summoned, or purported to summon, a General Council rather than elect an anti-pope.

The Council met, and purported to depose both Pope Gregory and the Avignon anti-pope.  It then elected a new ‘pope’ of its own.  This was the first Council anti-pope, as distinct from the Avignon anti-popes.  When he died soon afterwards the Council elected a second anti-pope, ‘John XXIII’.

Constance

This Council anti-pope was initially a great success, and even entered Rome, something the Avignon anti-popes had never achieved.  However, the tide of politics soon turned against him and he fled to Florence.  The Emperor then forced him to summon a second Council.

The Council of Constance was the most significant manifestation of conciliarism.  It was dominated by Cardinal Francis Zabarella (1360-1417), the most eminent canonist of the day and author of De Schismate, an exposition of conciliarist theory.  Zabarella might have become Pope himself but he died during the Council.

The Council issued two momentous decrees

(1)  Sacrosancta, in which the Council claimed the authority of Christ for itself, and claimed the obedience of all Christians, including the Pope.  However, the Holy See never recognised this decree.

(2) Frequens, which called for Councils to be held at regular intervals.

Constance brought the Great Schism to an end, but the process by which it did so must be clearly understood.  A glib summary has it that the Council was confronted by 3 rival popes.  Nobody could decide who the rightful pope was, so the Council got rid of all 3, and then made a fresh start by electing a new Pope.  This narrative is misleading, because it confuses law and politics.

The Council had been summoned by an anti-pope, and therefore could have no legitimacy.  The Holy See could not recognise it as truly ecumenical.  However, the ageing Pope Gregory XII had at last been converted to the cause of reconciliation.  He therefore resolved the legal difficulty by convening the Council afresh.

The Pope’s action in (re)convening the Council conferred legitimacy on it from that time on.  Hence it is now recognised as the 16th Council of the Church.  Having thus convened the Council, Gregory then abdicated.  He died shortly afterwards.

A unique conclave comprising cardinals and representatives of the Council then elected a new pope.  He took the name Martin V (Pope 1417-1431) because the conclave was celebrated on St. Martin’s Day.  Martin V’s pontificate began exactly 100 years before another Martin inaugurated the Reformation by nailing his 95 theses to the church door at Wittenberg.

As well as receiving Pope Gregory’s abdication, the Council deposed both the Avignon and the Council anti-popes.  The Council anti-pope submitted to Rome.  The Avignon anti-papacy lingered on obscurely for some years after 1417, but the Great Schism had effectively been healed.  Avignon itself acquired a lasting stigma from its unhappy associations, and was never again a papal residence.

Thus the Council of Constance solved a political problem.  Pope Gregory was the rightful Pope but he was incapable of healing the Schism, so he had to go.  The two anti-popes had no legal title, and no political value either, for they too were incapable of healing the Schism.  The Council ended the Schism by overcoming the old Pope’s intransigence, prevailing on him to abdicate, repudiating the two anti-popes and effecting the election of the new Pope.

This was undoubtedly a great political achievement, but it did not change any law.  There were not ‘three popes’ in 1414, or at any other time.  There was only ever one Pope.  Pope Gregory was not deposed.  The Council of Constance started along the via concilii, but it then changed direction and ended on the via cessionis.  It did not create a new source of authority.  Conciliarism as a religious doctrine did not prevail at Constance.  The Holy See survived without renouncing any of its jurisdiction.

A canonist explains that ‘Gregory XII’s fresh convocation and authorisation of the Council were a mere matter of form [but] this form was the price to which he attached his abdication, and it meant … that the [Council] should formally acknowledge him as the lawful Pope, and …. confess that its own authority dated only from that moment, and that all its previous acts … were devoid of all ecumenical character’.

He continues: ‘The [Council’s] recognition of Gregory XII’s legitimacy necessarily includes a similar recognition of [all the post-1378 Roman popes] and the rejection of the [anti-popes]’ (quoted by Pastor, p.201).

Basle (1431-1449)

Although the Holy See had not compromised its claims at Constance, conciliarism had become a powerful political force which could not be ignored.  ‘At this epoch, the idea of a General Council exercised a strange fascination on men’s minds.  It was looked upon as the cure for all the ills of the Church’ (Pastor, p.288).  Martin V therefore reluctantly convened the Council of Basle that had been prescribed by Frequens.

It was at Basle that conciliarism made its final bid for control of the mediaeval Church.  The Council published radical decrees abolishing the papal reservation of benefices (1433) and papal first fruits and annates (1435) (an early target of the English Reformation).

Martin V died shortly after convening the Council, and was succeeded by Eugene IV (Pope 1431-1447).  The new Pope’s position was weak.  He tried to dissolve the Council in 1433 but was forced to rescind the dissolution.  The political situation at Rome was so precarious that he fled to Florence and remained there for 10 years.

However, the Council was becoming discredited by its radicalism and crude political bias (pro-French, anti-Italian).  Pope Eugene gained ascendancy over it by his dialogue with Constantinople.  He held out the dazzling prospect of an end to the Greater Schism, that between the Greek and Latin Churches.  With Greek agreement, he ordered the Council to move from Basle to Ferrara (in 1437), then to Florence (in 1439).  Full of ecumenical enthusiasm for the reunion of Christendom, most of the Council Fathers obeyed the Pope’s command and left for Italy.

Of course, the Council of Ferrara-Florence proved a failure.  Reunion was agreed there, but it was never accepted by the Greek Church.  Constantinople fell to the Turks in 1453.  At the time, however, Ferrara-Florence seemed an outstanding ecumenical success.

The real success of Ferrara-Florence was that it averted a second major schism in the Latin Church.  The few Fathers who refused to leave Basle purported to depose Pope Eugene in 1439, and elected a third Council anti-pope, ‘Felix V’.

However, Eugene defeated this last schism by adroit diplomacy, ensuring support for the Holy See throughout Germany and Italy.  He was assisted Aenea Silvio Piccolimini, the celebrated memoirist and future Pope Pius II, who had originally supported ‘Felix’ and then defected to Rome.  ‘Felix’ himself submitted to Eugene’s successor, Nicholas V.

Legacy

The Council of Constance had a lasting intellectual and cultural influence.  While the Council met ‘Constance was for three years the metropolis of Europe’ (Obolensky, p.420).  It must have been a scintillating experience: ‘The world had never before beheld an assembly at once so numerous and intellectually so brilliant … the opportunities of intercourse between learned and cultivated men, afforded by these Councils, exercised an important influence on general civilization, and especially on the renaissance in literature’ (Pastor, p.256).  Constance ‘inaugurates a new epoch in the history of the search … for manuscripts … the impetus given to the interchange of thoughts … cannot be exaggerated.  The dawn of humanism, north of the Alps, dates from this period’.

This account suggests that, just as classical canon law ended when the Great Schism began, so the Renaissance began when the Schism ended.

Conciliarism addressed questions of authority and government in the Church that canon law had apparently failed to answer.  It may therefore have given birth to modern political science, the systematic study of political power.  It has been hailed admiringly as ‘part of the liberal tradition of Europe’ (Jacob, p.2).

Conciliarism again became fashionable at the Reformation: ‘[conciliarist] ideas, and those ideas alone, form the raison d’etre of the Church of England … federalism in the Church … preserving the unity of the whole while securing the independence of the parts’ (Figgis, p.236).  The 39 Articles give qualified approval to General Councils (Article 21), but warn that Councils are not infallible and can only be held with the permission of the secular authorities.  (The Council of Trent was meeting at the time.)  The English text of the 39 Articles uses the term congregation to describe the Church (Articles 19 and 23), though the Latin text only uses the term coetus once (Article 19) and otherwise sticks to ecclesia.

Yet the reformers did not succeed in making conciliarism work in practice.  There have never been any Protestant ‘ecumenical councils’ comparable to the pre-Reformation councils.  Nor was any ‘federal’ unity achieved.  Instead the Reformation resulted in the very evil that conciliarism had sought to prevent, the fragmentation of Latin Christendom by secular political jurisdiction (now euphemistically described as ‘dispersed authority’).

After initially close contact in the 16th century (when the 39 Articles were written) the Church of England distanced itself from European Protestantism.  The creation of the worldwide Anglican Communion in the 19th century was due to the expansion of the British Empire, nothing to do with mediaeval conciliarism.  Whatever the publicity they attract, modern supranational assemblies such as the Lambeth conferences and primates’ meetings are mere informal contacts with no legal authority.

Mediaeval conciliarism also gave birth to Gallicanism in the French (Catholic) Church.  Jean Gerson (1363-1429), the ‘Father of Gallicanism’, was another luminary at the Council of Constance.  Gallicanism perished in the French Revolution, but conciliarism was recalled nostalgically in the 19th and 20th centuries by those who regretted the ultramontane papalism of the Catholic Church at this time.  The papacy was again considered an obstacle to Christian unity.  Not, as in 1378-1417, because it was weak and divided, but because it was too strong and autocratic.

The second Vatican Council modified modern papalism with its doctrine of the collegiality of the Pope, successor of Peter, and the bishops, successors of the other Apostles.  Pope and bishops together constitute one Apostolic College.  (The Pope who summoned this Council, St John XXIII, took the same name and number as the second Council anti-pope, thereby proving the latter’s lack of legitimacy.)

However, any resemblance of modern episcopal collegiality to mediaeval conciliarism is superficial.  Vatican II made clear that ‘the college of bishops has no authority [without] its head, the Roman Pontiff … and without any lessening of his power of primacy over all … [which] he can always freely exercise’ (Lumen Gentium (1964), para 22).

The Code of Canon Law 1983 confirms that the Pope may abdicate, but he must do so ‘freely’, and the abdication does not have to be accepted by any other authority (canon 332.2).  He may not be deposed against his will.  The Holy See ‘is judged by no one’ (canon 1404).  It remains a canonical offence to attempt to impugn a papal decision before an ecumenical council or the College of Bishops (canon 1372).

 

Commentaries referred to

Figgis, J.N, Churches in the Modern State (London 1913)

Jacob, E.F, Essays in the Conciliar Epoch (2nd ed, Manchester 1953)

Kelly, J.N.D, The Oxford Dictionary of Popes (OUP 1986)

Knowles, D and Obolensky, D, The Christian Centuries (vol 2, Clarendon 1969)

Pastor, L, History of the Popes (ed F.I Antrobus 1906)

Renouard, Y, The Avignon Papacy (1954, transl D Bethell 1970)

Tierney, B, Foundations of Conciliar Theory (CUP 1955)

Ullmann, W, The Origins of the Great Schism (London 1948)