Ecclesiastical law

Month: January, 2017

Ecclesiastical Preferment: Canon 33 and Martyn v Hind

Canon 33 of 1603, The Titles of such as are to be made Ministers, provided that

‘no person shall be admitted into sacred orders, except he shall …

[1] exhibit to the Bishop … a presentation of himself to some ecclesiastical preferment then void in that diocese; or shall

[2] bring to the said Bishop a … certificate that either he is provided of some church within the … diocese … or of some minister’s place vacant …’.

It goes on to warn that

‘if any Bishop shall [ordain] any person … that hath none of these titles … then he [the Bishop] shall keep and maintain him … till he do prefer him to some ecclesiastical living.  And if the said Bishop shall refuse to do so, he shall be suspended … from giving of Orders by the space of a year’.

Canon 33 was discussed in the case of Martyn v Hind (1776) 98 English Reports 1174.  The case sheds an interesting sidelight on the status of Church of England ministers.

Mr Martyn was a newly ordained curate.  He sued his rector (or former rector), Dr Hind, after the latter dismissed him.

When appointing Mr Martyn, the rector had stated that ‘I … promise to allow him a yearly sum of 50 guineas for his maintenance … until he shall be otherwise provided of some ecclesiastical preferment …’.  Mr Martyn was referred to in the third person because the statement was addressed to the Bishop, not to him.

Some time after his appointment as curate, Mr Martyn took on the office of ‘parish reader’, an appointment in the gift of the vestry that had nothing to do with the Bishop.  (Presumably he needed the extra money.)  The rector took the view that Mr Martyn was now ‘otherwise provided of some ecclesiastical preferment’, and that this in turn had the effect of releasing the rector from his promise of payment and entitling him to dismiss Mr Martyn.

When sued for the 50 guineas, the rector tried to argue that he had no liability to Mr Martyn, because the promise had been made only to the Bishop, to satisfy the requirements of Canon 33.

However, the court held that the rector’s statement ‘[was] not a contract with the Bishop to indemnify him: but a certificate and assurance to the Bishop of a matter of fact’, viz that Mr Martyn had a suitable job to go to (p.1177).  The instrument was ‘merely a matter of information to the Bishop: the contract [was] with the curate’ (p.1178).  As well as complying with the requirements of Canon 33 and the Bishop, the rector’s act of appointment also created a contract between himself and Mr Martyn.

The court held that Canon 33 ‘shows that … it is not barely necessary that [an ordination candidate] should have a maintenance [i.e an income]: but that he should likewise have … some church where he may exercise his ministerial function: for that is the ground upon which the Bishop is entitled to ordain’ (p.1177).

This suggests that the Bishop’s right to ordain a candidate is conditional on the candidate’s possession of a title, an ecclesiastical office.  If the candidate lacks a title, that will not invalidate the ordination, but Canon 33 effectively obliges the Bishop to obtain a title for the candidate himself.  (An ordained minister could not undertake secular employment.)

The same point also disposed of the rector’s next argument.  He claimed that Mr Martyn had never really been his curate at all, because, though ordained, he had not been licensed by the Bishop.

However, the court held that the ordination itself constituted a licence to officiate as curate.  Mr Martyn had not been ordained simpliciter.  On the contrary, the Bishop had ordained him to the particular curacy.  The office of curate was ‘the very foundation and title of the ordination: therefore he [Martyn] is licensed to all intents and purposes’ (p.1178).

Canon 33 was replaced by Canon C5 of the revised Canons.  Canon C5 does not repeat the threat of financial liability on a bishop who ordains without title.  However, it still requires that an ordination candidate ‘shall first exhibit to the bishop … a certificate that he is provided of some ecclesiastical office  … which the bishop shall judge sufficient’.

However, the new regime of ‘common tenure’ suggests that it is now the Bishop’s responsibility to certify the office, not the candidate’s.  The Terms of Service Regulations 2009 provide that an ecclesiastical office ‘may be designated as a training post if the office holder is required by the … bishop to undertake initial ministerial education’ (29(3)).  Like other officeholders one newly ordained is also entitled to a written statement of particulars of office (including remuneration) from a diocesan officer nominated by the Bishop (3(1)).  This may mean that an ordination candidate is ordained to the diocese more than to a particular office.

To return to Martyn v Hind.  The court doubted that Mr Martyn really was a parish reader: ‘The term reader has confounded us … [Mr Martyn] is not a reader in any sense of the law.  This is nothing more than a parish employing a clergyman … to read prayers, and they call him a reader’ (p.1178).

As the court observed, a reader (or lector) ‘is one of the 5 minor orders of the Roman Church, inferior to the deacon’.  It was therefore a lay office: ‘a reader known to the canon law is always put in opposition to a clergyman: they [readers] are always considered laymen’.  That was why the court doubted that Mr Martyn could be a reader, because he was an ordained clergyman.

The reader’s status was a matter of contemporary practice, as well as ‘foreign’ canon law.  The court noted that parishes would appoint lay readers where clergy were lacking.  For example, ‘in the Welch dioceses, where there is no endowment worth the while of a clergyman to accept … many persons officiate as readers ‘in opposition to clergymen”.

Whatever the precise nature of the parochial office bestowed on Mr Martin, it was not an ‘ecclesiastical preferment’.  This was because ‘the office [is] such as requires no licence or authority [from the Bishop].  Therefore … it is impossible to consider this as an ecclesiastical preferment’.  So the court awarded Mr Martyn his 50 guineas.

The court’s conclusion was therefore that the office of reader could not be an ecclesiastical office because

(1) it was an intrinsically lay office and

(2) it lacked episcopal authority.

Today a reader is still a lay officeholder (1).  The revised Canons are clear that only ‘a lay person’ can become a reader (cf Canon E4(1)).  An ordained minister is not eligible.  However, the office now requires episcopal authority just as much as that of an ordained minister (2).  It is no longer a parochial appointment but an episcopal one.

Thus a lay reader must be both (1) admitted to office and (2) licensed to officiate by the Bishop (Canons E5 and E6).  The Bishop may not licence a stipendiary reader unless satisfied that ‘adequate provision’ has been made for the reader’s maintenance (E6(4)).  A stipendiary reader also holds common tenure on the same terms as stipendiary clergy (Terms of Service Measure 2009, s.1(1)).

Continuing Anglicanism: Conscience and Communion

‘the exercise of conscience is an act strictly and indefeasibly individual.  A number of individuals may take the same stand of conscience; but individuals they remain nevertheless.  No commonality, no collective identity, is created, nor can those who follow their own consciences create a new legitimacy, a new source of authority or conformity’.

(Enoch Powell on the non-jurors, The Times 14 November 1988)

A small piece of ecclesiastical history is being made today with the consecration of the first woman bishop in the Church in Wales.  This year will also see the 40th anniversary of the Affirmation of St. Louis, Missouri in 1977, made by ‘traditionalist’ Anglicans who could not accept the ordination of women.

The Affirmation of St. Louis announced that the constitutional structures of the Anglican Church of Canada and the American Episcopal Church had dissolved as a result of ‘unlawful attempts to alter faith, order and morality’.  Thus the Affirmation did not purport to dissolve any structure.  It merely declared that the structures had dissolved already.

The constitutional structure of the North American Church had dissolved, but not the Church itself.  On the contrary, the Church continued to exist.  It was therefore in need of a new constitutional structure.

The Affirmation therefore made a distinction between (1) the Church and (2) its constitutional structure.  ‘The Church’ comprises bishops, clergy and laity.  Thus the Church consists of real people, its structure is an artificial institution (or institutions).

If the constitutional structure is dissolved, where is the authority to create a new structure?  The authority came from the Affirmees themselves, who ‘affirm, covenant and declare that we, lawful and faithful members of the [North American] Churches, shall now and hereafter continue and be the unified continuing Anglican Church in North America, in true and valid succession thereto’.

Authority and communion were therefore united in the Affirmation.  The Affirmation itself was to be the source of constitutional authority in the continuing American Church.  Full communion was found only in the Church declared by the Affirmation.

The reference to a covenant makes the point that the basis of future governance is the Affirming Church members’ covenant with each other.  And the Continuing Church proceeded to make constitutional rules and to govern itself on the basis of this 1977 covenant.

A covenant is capable of creating a consensual authority as between the parties thereto, but it cannot bind third parties.  Moreover the whole point of a consensual covenant is that it rests upon the consent of the individual parties, which may be withdrawn at any time.  The ‘unified’ Church proclaimed in 1977 did not last long.  Today there are apparently several continuing Anglican Churches (including at least 2 in this country), each of which claims that it, and it alone, is in ‘true and valid succession’ to the Church recognised by the Affirmation.  Authority and communion have become hopelessly fragmented.

The Affirmation of St. Louis offers what might be called (to adopt the language of Brexit) a ‘hard’ continuing Anglicanism.  A softer continuing Anglicanism is to be found in the Church of England, and in the Church in Wales.  It was described in an interesting paper, ‘Ecclesiological Issues’, delivered by the Bishop of Ebbsfleet to a conference held in anticipation of today’s historic event (21-22 September 2016, text accessed on the Credo Cymru website 19 January 2017).

The Bishop belongs to the Society of St Wilfrid and St Hilda.  This Society is described as ‘an ecclesial structure which continues the orders of bishop and priest as the Church has received them’ (para 12).

The Society requires the appointment by the Church of

(1) a male bishop

(2) who only ordains male priests and

(3) is a member of the Society’s ‘College of Bishops’.

Such a bishop is required because he supplies the magic ingredient of full communion.  By providing pastoral oversight to traditionalist clergy and parishes he is their ‘focus and means of … communion’.  The full communion of the Society’s College of Bishops brings its clergy and parishes into a relationship of full communion with each other.

That is not all.  The bishop also effects a degree, or ‘dimension’, of communion (albeit something less than full communion) between his followers and their own diocesan bishops, also their ‘neighbouring parishes in the life and structures of deanery and diocese’.  In other words, a bishop of the Society forms a link or bridge between traditionalists and the rest of the Church, ‘their brothers and sisters … under the oversight of bishops who ordain both men and women’ (para 13).

Apart from the reference to ‘continuing’ the ordained ministry, this is a far cry from the Affirmation of St. Louis.  There is no triumphalist assertion of authority and communion.  The Society does not consider the existing ecclesiastical structures to have dissolved.  On the contrary, it wishes to be accommodated within them.  Nor does it make any exclusive claim of communion.  It seeks to integrate the full communion that exists between its members inter se into the communion of the Church.  So far from ‘unchurching’ other Church members who do not share its traditionalism, it humbly asks to be admitted to the same degree of communion within the Church as they.

The Bishop conceded that his Society and its College of Bishops have no authority in English law (nor in the constitution of the Church in Wales).  There is no legal mention even of their existence.  Their sole basis is the mutual recognition and consent of their members.  They are not a Church within a Church, merely an informal ‘ecclesial network of clergy and parishes, with ‘a certain ecclesial pattern’.

Above all, the Society makes a strict submission to ecclesiastical authority: ‘nothing can alienate the parish and its clergy from the juridical oversight of the diocesan bishop’ (para 9).  A bishop of the Society can offer only pastoral oversight.

Thus the ‘full communion’ proposed by the Society has no legal basis or expression to support it.   It depends entirely on the goodwill of those outside the Society who possess the necessary legal authority to appoint its bishops to positions of pastoral oversight.  If they refuse to appoint such bishops (and the Church in Wales authorities have refused so far, notwithstanding the Bishop’s eloquence at the conference), that is too bad.  There can be no full communion.

This bleak narrative of continuing Anglicanism, in both its hard and soft versions, supports the moral drawn from the experience of the non-jurors of 1688-89, quoted above.  Forty depressing years end where they began, with an individual conscientious objection.  They demonstrate that an act of conscience cannot create an authority or a communion.