Ecclesiastical law

Category: Ecclesiastical Jurisdiction

The Clerical Declaration of Assent

Chancellor Rupert Bursell QC, article in the Ecclesiastical Law Journal (2016) vol 18(2), May 2016, p.165.

This is an interesting account of the history and content of the Declaration contained in Canon C15(1) that clergy are required to make.  However, there are difficulties with its speculations about the disciplinary consequences of a ‘breach’ of the Declaration by an officeholder.

The learned author suggests that any disciplinary case involving the Declaration is likely to constitute a ‘reserved matter’, i.e an offence against doctrine, ritual and ceremonial (p.185).  Reserved matters are still regulated by the Ecclesiastical Jurisdiction Measure 1963, not the Clergy Discipline Measure 2003.

To date, no prosecution has ever been brought under the 1963 procedure for reserved matters.  There seems to be no reported case either under the 1963 Measure or the 2003 Measure concerning a breach of the Canon C15(1) Declaration.

Although described as ‘The Declaration of Assent‘, the word ‘assent’ does not appear in the text of the Declaration.  The Declaration is in the following terms:

‘I, A.B …

[1] declare my belief in the faith which is revealed in the Holy Scriptures and set forth in the Catholic Creeds and to which the historic formularies of the Church of England bear witness and

[2] in public prayer and the administration of the sacraments, I will use only the forms of service which are authorized or allowed by Canon’.

It will be apparent from this wording that ‘the Declaration’ is actually two declarations, as to (1) religious belief and (2) compliance with the Church’s law of worship.

The two declarations are significantly different in character.  Only Declaration (2) is concerned with conduct.  Declaration (1) concerns state of mind.  Declaration (1) is expressed in the present tense.  It affirms the clergyman’s religious belief as at the time it is made.  It contains no guarantee of what the clergyman may or may not believe in the future.  Declaration (2), by contrast, is an undertaking as to future conduct.

It is difficult to see how Declaration (1) could give rise to disciplinary action, as it refers only to a state of mind.  As Dr Johnson observed, ‘Every man has a physical right to think as he pleases, for it cannot be discovered how he thinks’.  Perhaps disciplinary action would be possible if there was evidence that an officeholder had knowingly made a false declaration (e.g ‘I only made the Declaration to get the job’), though such a case might be hard to prove.

The ‘forms of service’ which are the subject of Declaration (2) are now ‘authorised or approved’ under the authority of the Worship and Doctrine Measure 1974, which was, of course, passed some years after the 1963 Measure.  The reserved jurisdiction over ritual and ceremonial in the 1963 Measure applied to the old 1662 regime of public worship.  The 1662 regime was abolished by the Worship and Doctrine Measure.  It might therefore have been appropriate to abolish the reserved jurisdiction over ritual and ceremonial at the same time, but this was not done.

Canon B2 now provides that ‘Every minister shall use only the forms of service authorised by this Canon, except so far as he may exercise the discretion permitted by Canon B5′.

Thus if an officeholder breaks the rule laid down by Canon B2, or exceeds the discretion permitted by Canon B5, this will clearly constitute disobedience, ‘doing [an] act in contravention of the laws ecclesiastical’, which is misconduct under s.8(1) of the Clergy Discipline Measure.  There will be no need to invoke the 1963 reserved jurisdiction, even if such misconduct is cognisable under this jurisdiction.

The learned author asserts that ‘Once made, the Declaration is binding unless and until a cleric formally renounces his or her orders’ i.e by exercising a deed of relinquishment (p.183).  He makes this assertion not just once but twice (at p.183 and p.187).  (It must be important to him, for some reason.)

Canon C15(1)(6) is cited as authority.  This provides that

‘Where any bishop, priest or deacon ceases to hold office in the Church of England or otherwise ceases to serve in any place, the Declaration made under this Canon shall continue to have effect insofar as he continues to minister in the Church’.

On this wording, Canon C15(1)(6) does not provide that the Declaration continues until a clergyman formally renounces his orders.  It provides only that the Declaration continues as long as the clergyman continues to officiate.  It makes no reference to renunciation of orders.

Canon C15(1)(6) means in effect that a retired bishop or vicar (or a vicar on a career break) who helps out by taking services, as retired clergy do, will not have to take the Declaration again after retirement, but will be expected to honour the Declaration made while still in ‘active’ ministry.  It simply does not apply to clergy who do not officiate at all.  And clergy who do not officiate in the Church will have no opportunity to act in breach of the Declaration, regardless of whether they have executed a deed of relinquishment.

Ecclesiastical Sequestration

Halsbury’s Laws of England, volume 14 (the 4th edition)

Sequestration is the administration of the estate of a benefice otherwise than by the incumbent.  It is ‘a process … whereby the profits and income of the benefice … are ordered to be taken by … the sequestrator and to be applied in the manner required by the circumstances of the case …’ (para 892).

There are two types of sequestration:

(1) a creditor’s sequestration and

(2) the bishop’s (or ordinary’s) sequestration.

Creditor’s Sequestration

This occurs when an incumbent is declared bankrupt, or has an unsatisfied judgment debt entered against him.

Sequestration is required in such a case because of ‘[the] peculiar kind of interest which a parson has’ (Meredith (1879) 11 Chancery Division 731 at p.733)

‘The estate [of a benefice] cannot vest in the [trustee in bankruptcy or receiver] because he is a layman: it is an estate which can only be held by a clerk.  But then the law is not to be defeated by that circumstance.  It says that the profits of the living are applicable for the payment of creditors, that the [trustee / receiver] has a right to issue a sequestration, which remains operative so long as the creditors are unpaid’.

Sequestration is effected by a order from the secular court to the bishop, requiring him ‘to enter into the benefice and the church and take and sequester them into his possession … until he has levied debts, costs and interest out of their profits’ (para 895).

Sequestration therefore gives the bishop a right of possession of the benefice estate.  However, possession extends only to the benefice glebe and tithe, not to the official residence (para 913).  Even though insolvent, the incumbent remains in office and continues to be responsible for the ecclesiastical duties of the benefice.  He therefore remains subject to the duty of residence on benefice, and this requires possession of the parsonage.

Once in possession the bishop appoints a sequestrator.  Thus the bishop acts under an order from the secular court, but the sequestrator acts under an order from the bishop.  The ecclesiastical sequestrator has no direct relationship with the secular court.

However, a sequestrator can bring an action ex officio ‘to the same extent as the incumbent might have done if the benefice had not been under sequestration’ (para 915).

The bishop remains responsible to the secular court for the sequestration.  However, the creditor’s claim on the benefice is subject to the Church’s jurisdiction.  The creditor has no control over the bishop’s choice of sequestrator.  If the incumbent is suspended from office as a result of ecclesiastical disciplinary proceedings, the creditor loses any rights over the benefice property (para 899).

The reason for this rule is, that if the incumbent is suspended from office then he ceases to be entitled to the benefice profits.  This means that the creditor also ceases to be entitled, since he claims through the incumbent (para 902).

If the incumbent is suspended, this also means that the creditor loses his place in the queue for payment of debts.  A later sequestration, at the behest of another creditor, will have priority over the earlier sequestration that was lost because of the suspension.

The same consequences apply if the incumbent is moved to another benefice or ecclesiastical office instead of being suspended.  However, the incumbent is not permitted to accept a new office without the permission of both the bishop and the sequestrator (para 921).

If a creditor’s sequestration continues for six months, the bishop must assume responsibility for the ecclesiastical duties of the benefice (para 901).  This means that he can appoint a curate and also ‘inhibit’ the incumbent from officiating in church.  However, this does not assist the creditor, because the curate’s stipend is payable out of the sequestration and has priority over the debt owed to the creditor.

Bishop’s Sequestration

This is of two types:

(1) disciplinary and

(2) due to a vacancy in the benefice (para 905).

A bishop’s sequestration may be issued under various common law and statutory powers in respect of various disciplinary offences of the incumbent, including failure to reside on benefice, accepting secular employment and failing to repair benefice buildings.  A sequestration will issue if the incumbent is suspended from office as a result of disciplinary proceedings.

This time the bishop issues the sequestration, not the secular court.  A disciplinary sequestration may be subject to an appeal to the Archbishop.

If a sequestered incumbent has ex officio rights of presentation to another office, these are exercised by the bishop of the diocese in which the vacancy occurs, not by the incumbent’s own bishop or by the sequestrator (para 920).  However, a sequestered incumbent retains his right to appoint the parish clerk jointly with the parochial church council.

In a vacancy, as distinct from a disciplinary case, the sequestrators are ‘to account for the net balance [of benefice profits] to the succeeding incumbent, who may maintain an action against the sequestrators for the balance’ (para 910).

Although the general rule is that sequestration does not give the bishop possession of the official residence of the benefice, the Pluralities Act 1838 empower the bishop to enforce the incumbent’s delivery of possession to a curate, if the incumbent has been suspended from office (para 915).

Also, during a vacancy, the sequestrators must provide for ‘the care, custody and upkeep of the residence’ which presumably requires a degree of possession (para 911).

Bonaker v Evans

(1850) 117 English Reports 840

This concerned a bishop’s sequestration.  The bishop order sequestration of the incumbent’s benefice under a statutory power.  He was therefore acting of his own motion, and not in obedience to an order of the secular court.  His reason for doing so was that the incumbent has neglected to reside on his benefice, in breach of the bishop’s order to do so.

However, the secular court held that the sequestration was void.  It accepted that the bishop was ‘the proper authority to decide whether there has been a non-compliance with [his] order to reside’ (p.844).  However, this power was still subject to the requirement of natural justice that the incumbent should have a fair opportunity of answering the complaint of non-residence.

In this case natural justice had not been done to the incumbent.  The bishop had ordered him to reside, and had threatened sequestration, but the complaint of non-residence had not been made clear to him, and he had not been invited to rebut the complaint.

The requirement of natural justice arose because of the nature of the sequestration proceedings.  Was the bishop’s sequestration a ‘criminal’ punishment of the incumbent for the offence of non-residence?  It so, he was entitled to be properly heard before being punished.  Or was the sequestration merely a ‘civil’ remedy of enforcement of the incumbent’s acknowledged duty to reside on his benefice?

The court decided that it was both: ‘although one of the objects of … sequestration may be to enforce future residence, another clearly is to punish past delinquency’ (p845).  Also any disciplinary proceedings could ultimately result in the incumbent’s loss of his benefice, and therefore ‘certainly must be treated as penal’. 

Sequestration Today

The account in the 4th edition of Halsbury’s Laws suggests that there is extensive case law and statute law concerning sequestration.  Volume 34 of the very recent 5th edition of Halsbury’s Laws, published in 2011, makes only brief reference to creditor’s sequestration and concentrates on bishop’s sequestration (paras 698-714).  However, it notes that ‘writs of sequestration may still be applied for in the civil courts’ (para 669, note 3).  Thus it would seem that the old law remains in force.

However, the law concerning sequestration can be of little practical use today, beyond looking after the parsonage house during a vacancy.  This is because modern incumbents are no longer the legal owners of the property that was subject to sequestration.  S.15 of the Endowments and Glebe Measure 1976 provides that all benefice glebe should vest in the local diocesan board of finance.  Hence the incumbent has nothing left to sequester.  The incumbent retains a nominal freehold of the official residence, but the residence was always exempt from a creditor’s sequestration.

The Miscellaneous Provisions Measure 1992 confirms that the bishop has power to appoint the churchwardens, and other persons if he wishes, as sequestrators during a vacancy in the benefice (s.1).  Now he merely appoints them.  A formal writ of sequestration is no longer required.

The extensive law concerning sequestration reminds us how the status of incumbents has changed in recent decades.  Modern incumbents resemble salaried employees, with fixed stipends and other ‘terms of service’.  Their predecessors, by contrast, were really self-employed farmers, men of property who lived off the rents and profits of their estates.

Modern incumbents share some of the insecurity that attends secular employment.  They may be made redundant in the course of a pastoral reorganisation.  The bishop may also, in effect, withdraw the parson’s freehold by suspending the patron’s right of presentation to a vacant benefice (Mission and Pastoral Measure 2011, s.85).  Any ‘incumbent’ appointed while a suspension is in force is merely a licensee of the bishop.

Incumbents formerly had much greater security of tenure.  However, security of tenure did not guarantee security of income.  The incumbents of former times could not be made redundant like employees, but they suffered all the insecurities of the self-employed.  (This was long before farmers received state subsidies).  A bad harvest, or some other misfortune, could bankrupt the self-employed incumbent through no fault of his own.  The large number of reported cases on creditor’s sequestration may give the impression that many incumbents were feckless, or even dishonest.  This is unfair.

Modern Ecclesiastical Jurisdiction

Lord Penzance

Lord Penzance, Dean of the Arches in the late 19th century, did much to modernise ecclesiastical jurisdiction.  In Phillimore v Machon (1876) 1 Probate Division 481 he signified the Church courts’ recognition of the loss of their jurisdiction over the laity.  In Combe v de la Bere (1881) 6 Probate Division 157 he remoulded the jurisdiction over the clergy from a jurisdiction pro salute animae into a modern disciplinary jurisdiction.

The process of modernisation was completed by Lord Penzance’s successor as Dean of the Arches, Sir Lewis Dibdin, in Banister v Thompson (1908) Probate 362, which clarified the law governing exclusion from Holy Communion.  This is discussed separately.

In the case of Peek v Trower (1881) 7 Probate Division 21, Lord Penzance also effectively inaugurated the modern faculty jurisdiction, though unfortunately his judgment in the later case of Nickalls v Briscoe (1892) Probate Division 269 gave rise to subsequent misunderstandings.  This is also discussed separately.

Phillimore v Machon

Mr Machon was a farmer, not a clergyman or churchwarden.  Walter Phillimore, son of Sir Robert, was Vicar-General of Lincoln, though aged just 30.  He prosecuted Mr Machon in the ecclesiastical court for allegedly swearing a false affidavit in order to obtain a marriage licence.

Lord Penzance was plainly irritated by the precocious Phillimore’s attempt to revive the (by then) obsolete ecclesiastical jurisdiction over the laity.  The difficulty, however, was that the jurisdiction to try this particular offence had not been expressly abolished by Act of Parliament.

The difficulty was solved by holding that the ecclesiastical jurisdiction had been inferentially abolished by an Act of Parliament.  This Act had conferred criminal jurisdiction in respect of false oaths on the secular courts.  By doing this Parliament had withdrawn the jurisdiction from the ecclesiastical court.

Lord Penzance cited Coke:

‘where the common or statute law give remedy in foro seculari … the conusans of that cause belongs to the King’s temporal courts only: unless the jurisdiction of the ecclesiastical court be saved or allowed by the same statute to proceed …’ (p.489). 

Phillimore’s suit was dismissed with costs.

The case is useful for its approach to outdated law.  Lord Penzance noted that ‘the punishment of the laity for the good of their souls by the ecclesiastical courts would not be in harmony with modern ideas’ (p.487).  However, he acknowledged that contemporary thought alone ‘form[s] no reason for rejecting the jurisdiction, if it exists in law, but [it] ought to make the Court careful in asserting such a jurisdiction if its existence is not plainly established …’.

Phillimore had not been very careful in this respect.  Lord Penzance noted that he had been unable to cite a similar prosecution in an ecclesiastical court within the previous 200 years.

These dicta acknowledge that a jurisdiction may be abolished only by statutory authority, express or implied.  However, they also suggest that, where the jurisdiction is plainly anachronistic, it is wrong, as a matter of policy or discretion, for the Court or its officials to seek to revive it.

Combe v de la Bere

The Rev Mr de la Bere was convicted of various ‘ritualist’ offences: ‘unlawful use of lighted candles … unlawful elevation of the paten … unlawfully kneeling or prostrating himself …’ (p.158).  The Court of the Arches suspended him for six months.  He defiantly continued to officiate in his church and also obstructed the clergyman appointed to stand in for him during his suspension.

Such flagrant disobedience left the Court with little alternative but to deprive Mr de la Bere of his living.  However, Lord Penzance carefully discussed the origin and scope of deprivation as an ecclesiastical penalty.  He found that there were ‘very meagre records of ecclesiastical law’ on the point (p.162).

Deprivation is deprivation from office.  It therefore necessarily affects property rights.  However, Lord Penzance noted that ‘in [no] case of purely spiritual cognizance [have] the temporal courts … questioned the propriety of this sentence or the right of the [ecclesiastical] court to inflict it’. 

Thus he concluded that the ecclesiastical court had jurisdiction at common law to deprive a clergyman from office.  (Later, of course, the penalty was sanctioned by statutory authority.)

Citing Ayliffe, Lord Penzance held that ‘All the causes of deprivation may be reduced to these three heads …

[1] want of capacity,

[2] contempt and

[3] crimes’ (p.163).

‘Want of capacity’ may refer to some medical incapability or to legal incapacity (for example, if the incumbent is not an ordained priest).  ‘Contempt’ is disobedience to ecclesiastical law, or to the lawful orders of the ecclesiastical authority.

Lord Penzance then stated the criteria for deprivation: ‘the gravity of the offence in each particular case taken in connection with its attendant circumstances’ (pp.169-70).  Also ‘one mode of measuring the gravity of an offence is to consider the obligations which have been broken through the committing of it’ (pp.174-5).

The case established that the purpose of modern ecclesiastical discipline is not ‘the soul’s health’ or the offender’s ‘reformation of manners’.  Discipline serves the public order of the Church, which demands the exclusion from office of those guilty of serious or persistent misconduct.

Combe v de la Bere was affirmed by the Court of the Arches in Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012.

The Rev Mr Bland did not get on with his parishioners.  He was convicted in the consistory court of various offences of neglect of duty and unbecoming conduct.

Mindful of the fraught situation in Mr Bland’s parish, the chancellor sentenced him to be deprived of his living, holding that ‘I should be failing in my duty if I did not … ensure that the convicted clerk and the cures where he was working part company now for ever’ (p.1021).

However, the Arches strongly disapproved of this sentence, holding that it was ‘a wholly wrong approach’ to use deprivation as a tool to resolve a difficult pastoral situation.  It followed Combe in holding that ‘the paramount consideration in selecting the appropriate sentence … should be the gravity of the offence … or the totality of the offences …’.

However, the Court of the Arches agreed that, if the proven offence was of sufficient gravity to warrant deprivation, it may be relevant to consider ‘the interests of the parish together with the other relevant circumstances’.

On Mr Bland’s appeal, the Court of the Arches overturned all his convictions, except a conviction for writing a number of rude letters, and sent him back to his parish with a rebuke.  (The pastoral situation there did not improve, indeed it deteriorated, and for many years Mr Bland’s Sunday services were attended only by his housekeeper.)

The Court of Ecclesiastical Causes Reserved: England’s Inquisition

Origin and Jurisdiction

In contrast to the diocesan (consistory) courts and the provincial courts of the Church of England, which date from mediaeval times, the Court of Ecclesiastical Causes Reserved (‘CECR’) is not quite 50 years old.  It was first constituted by the Ecclesiastical Jurisdiction Measure 1963, following the recommendation of a Church of England report Ecclesiastical Courts, Principles of Reconstruction which was published in 1954.

The ’causes reserved’ to the CECR, which it was created to decide, are those which concern doctrine, ritual and ceremonial.  Ecclesiastical law still makes a distinction between cases involving doctrine, ritual and ceremonial (the so-called ‘reserved matters’) and other legal cases. 

The CECR comprises two senior judges, who must be communicants, and three diocesan bishops (1963 Measure, s.5).  The CECR’s jurisdiction is regulated by s.10 of the 1963 Measure:

(1) it has original disciplinary jurisdiction in matters of doctrine, ritual and ceremonial. 

(2) it may hear an appeal (described as a suit of duplex querula) against a bishop’s refusal to institute a clergyman to a benefice, where the refusal is based on a matter of doctrine or ritual.

(3) it may hear an appeal from a consistory court in any faculty case ‘involving matter’ of doctrine, ritual or ceremonial. 

S.45(3) of the 1963 Measure provides that, in exercising these three jurisdictions, the CECR ‘shall not be bound by any decision of the … Privy Council in relation to matters of doctrine, ritual or ceremonial’. 

Cases involving ritual and ceremonial once caused acute legal difficulty.  In 1954 and 1963 public worship was still nominally regulated by the Act of Uniformity 1662 and by the Privy Council’s strict interpretation of the rubrics of the Book of Common Prayer in the 19th century.  It had long been recognised that the 1662 regime was unenforceable but Parliament rejected a revised Prayer Book in the 1920s. 

Having failed to persuade Parliament to abolish the 1662 regime, the Church at least freed itself from the Privy Council’s decisions concerning that regime, by means of the CECR and s.45(3). 

The CECR is progressive in another respect.  It exercises the same disciplinary jurisdiction over bishops and lesser clergy.  This demonstrates that everyone is equal before the law regardless of status.  The Clergy Discipline Measure 2003, by contrast, retains the quasi-feudal distinction between the discipline of bishops and that of lesser clergy, by providing that complaints against the former are to be heard by the Vicar-General’s Court, rather than by a disciplinary tribunal (as for other clergy).

The anarchic state of the law made it virtually impossible to treat questions of liturgical practice in the same way as other legal questions.  However, not long after the 1963 Measure, the 1662 regime was finally abolished, and a new regime of public worship introduced, by the Worship and Doctrine Measure 1974. 

The 1974 Measure should have sufficed to remove any need for a distinction between questions of worship and doctrine and other matters.  Yet the distinction has persisted since 1974.

However, the 1954 report argued that there was another distinction between reserved matters and other cases, apart from the 1662 regime:

‘The differentiation [of reserved matters from other cases] … rests upon a solid foundation.  The burden cast upon a tribunal when an issue is factual differs in essence from that when the issue involves intellectual appreciation and spiritual discernment’ (p.48).

This point is hard to accept.  A reserved case will involve facts just as much as any other.  It is possible that the facts may be more complex than in an ordinary case, requiring expert evidence from theologians or historians, but they are still facts.  All cases require ‘intellectual appreciation and discernment’ on the part of the judges if they are to be decided justly.

The distinction between reserved matters and other misconduct was discussed by the Court of the Arches in the case of Archdeacon of Cheltenham v Bland (1972) 1 All England Reports 1012.  One of the charges of neglect of duty was the Reverend Mr Bland’s alleged refusal to baptise a baby.  It was suggested that a refusal to baptise that was based on doctrinal grounds might constitute a ‘reserved’ matter, an offence against doctrine, and therefore not within the Court of the Arches’ jurisdiction.

The Court rejected this suggestion.  It held that ‘refusal to baptise a child is not a doctrinal offence … It is concerned with pastoral work and activity’.  The defendant’s motive or intention is irrelevant to the question whether an offence is doctrinal or not.  Only the defendant’s alleged conduct is relevant.

Likewise it is argued that, if an incumbent disobeys the bishop’s directions under canon B5(4), concerning the use of forms of service, this should be treated as an offence of disobedience under the Clergy Discipline Measure 2003, and not as a reserved offence under the 1963 Measure, even if the disobedience was prompted by the incumbent’s opinions on ritual and ceremonial.

The exclusion of ‘heresy’ cases from the Clergy Discipline Measure 2003 does not necessarily assist clergy of questionable orthodoxy.  The protection conferred on licensed clergy (as distinct from beneficed clergy) by s.8(2) of the 2003 Measure applies only to alleged misconduct within the scope of that Measure.  The Church of England report Under Authority (1996) records the case of a clergyman whose licence was revoked ‘because his [religious] views were considered to be incompatible with his diocesan role’ (p.4). 

It will be interesting to see how, if at all, the ‘capability procedure’ inaugurated by s.2(1) of the Ecclesiastical Offices (Terms of Service) Measure 2009 will be applied to clergy and lay ministers whose doctrinal opinions cause offence.

Doctrinal Disputes

S.45(3) is now somewhat otiose in relation to ritual and ceremonial, since these are regulated by the 1974 regime.  The Privy Council was concerned to enforce the 1662 regime, which is now abolished.  S.45(3) is therefore relevant only to doctrine. 

Halsbury’s Laws identifies the following ‘doctrinal’ offences in ecclesiastical law: heresy, blasphemy (‘avowing blasphemous and impious opinions contrary to the Christian religion’), depraving the Book of Common Prayer and maintaining doctrines repugnant to the 39 Articles (4th edition, volume 14, para 1354).  The 1996 report Under Authority recommended a new offence of ‘teaching, preaching, publishing or professing doctrine or belief incompatible with that of the Church of England’ (p.53), but the suggestion was not followed.

Although the CECR is not ‘bound’ by the decisions of the Privy Council, there is nothing to prevent it from considering such decisions. 

There may be only four reported Privy Council decisions on doctrine.  The most famous was Gorham v Bishop of Exeter (1849-50) 163 English Reports 1221.  The Bishop refused to institute Mr Gorham to a benefice in his diocese because, after a lengthy examination, he found that Mr Gorham’s views on infant baptism were incompatible with the Church’s doctrine.  Mr Gorham took proceedings in the Court of the Arches to compel the Bishop to institute him.

The Court held that, to decide the question of infant baptism, ‘All that the Court is called upon to do is … ascertain whether the Church has determined any thing upon the subject’ (p.1238).  It continued:

‘With a view to ascertaining the doctrine of the Church on any subject … the 39 Articles are, in the first place, to be consulted: and when … they leave nothing short, but speak on any point of doctrine plainly, precisely and definitely, then there can be no occasion to search further … prima facie then the 39 Articles are the standard of doctrine’ (pp.1240-1).

Having examined the relevant Articles the Court concluded that ‘we find no solution to the point [about infant baptism]’.  It therefore turned to the forms of service in the Prayer Book.  Having studied these, it concluded that Mr Gorham ‘did oppose the doctrine of baptismal regeneration’ (p.1257). 

As is well known, Mr Gorham appealed to the Privy Council and won his case.  The Privy Council overruled the Court of the Arches and the Bishop of Exeter, and held that Mr Gorham’s views were not incompatible with Church doctrine.

However, although they came to different conclusions, both tribunals agreed on the legal construction of the formularies in matters of doctrine.  The Privy Council agreed with the Court of the Arches that the 39 Articles are the primary standard of doctrine.  The Articles are the Church of England’s ‘code of faith’.  If the Articles are silent or inconclusive, the Book of Common Prayer may be consulted.

The Privy Council was more sensitive than the Court of the Arches to the character of the Prayer Book as a manual of public worship.  It held that only the ‘dogmatical’ parts of the Prayer Book are declaratory of doctrine.  By contrast the ‘devotional’ parts of the Prayer Book, and its rubrics, are not evidence of doctrine, unless clearly supported by the 39 Articles.

As an example of the distinction between the ‘dogmatical’ and ‘devotional’ parts of the Prayer Book, the Privy Council cited the burial service, which on its wording seems to promise eternal life for everyone, even though this is not the Church’s doctrine.

The other 19th century doctrinal cases were Williams v Bishop of Salisbury (1864) 15 English Reports 943, Sheppard v Bennett (1872) Law Reports 4 Privy Council 350 and Voysey v Noble (1870-1) Law Reports 3 Privy Council 374.

Unlike Gorham, which was a civil dispute, the other three cases were ‘criminal’ prosecutions for alleged unorthodoxy.  In the first two cases, the defendants were acquitted.  As a commentator noted, the Privy Council ‘while narrowly restricting the limits of permissible ritual, enlarged the latitude of permissible belief’ (C.Y Sturge, Points of Church Law (1907), p.111).

However, in Voysey v Noble, the Reverend Mr Voysey was found guilty of having ‘maintained and promulgated doctrines contrary and repugnant to, or inconsistent with, the Articles of Religion and formularies of the Church of England’, and was deprived of his living.

It was suggested in the Williams case that a prosecution for heresy must

‘(1) distinctly state the [heretical] opinions which the clerk has advisedly maintained

(2) set forth the passages in which these opinions are stated

(3) specify the doctrines of the Church which such opinions or teaching of the clerk are alleged to contravene and

(4) the particular Articles of Religion, or portions of the Formularies, which contain such doctrines’ (p.961).

A Lesson for Lawyers

It is salutary for ecclesiastical lawyers to study the history of the CECR.  Ecclesiastical courts are of particular interest to ecclesiastical lawyers, for obvious reasons.  They are the special preserve of lawyers.  They are the one means by which lawyers can take their own decisions concerning the Church, rather than merely seek to influence decisions taken by others.  An ecclesiastical lawyer’s preferred solution to a particular problem within the Church is likely to involve the creation of a new court or tribunal.

There is therefore an enormous volume of law and legal commentary concerning ecclesiastical courts.  Yet this is out of all proportion to their practical function in the modern Church.  With a slight hint of shock, Norman Doe wrote of his researches into the law of the Anglican Communion that ‘The evidence from decisions of Church courts is weakest … available in only half a dozen Churches … in several Churches, replies indicated that Church courts simply do not sit’ (Canon Law in the Anglican Communion (1998), Clarendon, Oxford, p.5).

The likely reason for this dearth of material is that bishops and other ecclesiastical officeholders, and indeed churchpeople generally, do not share the lawyers’ natural enthusiasm for Church courts.  Like all sensible people, they try to avoid the expense and unpleasantness of litigation if they possibly can.

The experience of the CECR, above all, shows that it is one thing to establish a new tribunal and another to make use of it.  The learned authors of the 1954 report clearly had high ambitions for their brainchild.  They argued that the proposed new Court ‘must possess … such spiritual authority as will lead the Church as a whole not only to accept but to welcome its pronouncements on the vital matters with which it is to deal’ (p.53).

Nor did the 1954 report overlook the burden that the new Court would place on the resources of the Church.  It would require the assistance of ‘assessors, theologians … and liturgists … the assembly of such a Court from … one diocese [only] would be impossible and would … tax the resources of a province if the hearings were frequent or protracted’.  Thus there should be ‘one such Court … for the whole Church of England …’ (p.54).

True, the Church did adopt the proposal for the CECR, though nearly a decade after the report was written.  Yet in the half century since then the CECR has apparently met only twice, on both occasions to hear appeals in faculty cases.  No prosecution for a reserved offence has ever been brought under the 1963 Measure.  The ambitions of the CECR’s promoters have been disappointed, to put it mildly.  It is likely that few churchpeople have even heard of it.

The two reported faculty cases are St Michael and All Angels, Great Torrington (1985) Family 81 and St. Stephen’s Walbrook (1987) 2 All England Reports 578.  The Walbrook case is notable, not for any doctrinal pronouncement, but for the judges’ powerful critique of the test of ‘necessity’ devised by the ecclesiastical courts for faculty applications.  However, this powerful critique has been studiedly ignored by the ecclesiastical courts for the last 25 years.

Doctors’ Commons

Ecclesiastical law has often been identified with the law administered in the ecclesiastical courts.  However, this law might be more precisely described as the law administered in Doctors’ Commons.  Just as common lawyers practised from the inns of court, so ecclesiastical lawyers operated in Doctors’ Commons.  It was the ecclesiastical inn of court, located near St. Paul’s Cathedral in the City of London.

The origin of Doctors’ Commons is recorded by Phillimore, quoting from a report of 1832 (Ecclesiastical Law, 2nd edition 1895, p.935).  The site was purchased in 1567, although the society of lawyers which settled there dated from 1511 or even earlier, and so predated the Reformation.  The site comprised chambers for the judges and lawyers, and ‘proper buildings for holding the ecclesiastical and admiralty courts, where they have ever since continued to be held’.  By a royal charter of 1768 the inhabitants of Doctors’ Commons were incorporated as a college.

Phillimore’s account continues:

‘This college consists of a president (the Dean of the Arches for the time being) and of those doctors of law who … having been admitted advocates in pursuance of the rescript of the Archbishop of Canterbury, shall have been elected fellows of the college … no person can be admitted a member, or allowed to practise as an advocate in the courts at Doctors’ Commons, without first having taken the degree of Doctor of Laws in one of the English universities’.

This explains why Doctors’ Commons was so called.  The ecclesiastical judges were chosen from among the advocates.  As well as judges and advocates there were proctors, who performed functions similar to those of solicitors.

The history and work of Doctors’ Commons are the subject of two excellent modern commentaries, R.H Helmholz Roman Canon Law in Reformation England (Cambridge University Press 1990) and G.D Squibb Doctors’ Commons (Clarendon Press, Oxford 1977).

The cases decided in the courts of Doctors’ Commons were reported by some of the doctor-advocates who practised there.  These included Joseph Phillimore, father of Sir Robert.  Phillimore pere compiled collections of various reports cited as Phill.  He also collected the judgments of Sir George Lee, an 18th century Dean of the Arches (cited as Lee).  Doctors Addams (Add), Curteis (Curt), Haggard (Hagg) and Robertson (Rob) also compiled reports.

Dr Haggard’s compilations are divided into two categories.  Hag Ecc are reports of cases in a number of ecclesiastical courts.  Hag Con are reports of cases decided in the London consistory court only.  Lee and Hag Con are 18th century cases, the other collections date from 1809-1853.  These collections of reports are now published in the English Reports (ER). 

Despite its association with the Church, Doctors’ Commons was rather secular in character.  Archbishop Cranmer apparently appointed the first lay Dean of the Arches, Dr William Coke, in 1546, and the last ordained advocate was admitted in 1609 (Squibb, p.28).  Thereafter Doctors’ Commons comprised only laymen, not clergy.  Indeed the institution became so thoroughly laicised that by 1807 ordination was considered a ground of disqualification as an advocate!  The Doctors probably had little contact with the clergy, except when the latter became involved in legal disputes.

It should be remembered that most ecclesiastical courts were not part of Doctors’ Commons.  Only the courts of the Archbishop of Canterbury, principally the Court of the Arches and the Prerogative Court, also the Admiralty Court and the London consistory court, operated there.  With rare exceptions it is only the judgments of these courts that appear in the published reports.

All the other bishops’ and archdeacons’ courts, including all the ecclesiastical courts of the Province of York, operated locally and their judgments were not reported.  Thus it might be more accurate to identify ecclesiastical law with Doctors’ Commons rather than with the ecclesiastical courts as a whole.

The erudite Doctors lamented the poor quality of the local courts.  Sir John Nicholl, Dean of the Arches, was particularly critical.  In Lee and Parker v Chalcraft (1821) 161 ER 1439 he sighed that ‘If [the Arches] were not to admit the irregularities which take place in the Courts below, a party could hardly ever succeed in obtaining justice before this tribunal’ (p.1441).  In Morgan v Hopkins (1818) 161 ER 1238 he allowed an appeal from the Llandaff consistory court, complaining that ‘Irregularities exist in many of the inferior courts: but they are conspicuous in the Court from which this appeal is brought: there the proceedings are not carried on upon the same principles which guide us in Doctors’ Commons’.  He was a Welshman and native of the Llandaff diocese!

Most of the work of Doctors’ Commons was of a non-ecclesiastical character.  Only a fairly small proportion of the cases decided and reported there are directly concerned with ‘the Church’ as it is now understood.  Peter Winckworth calculates that of 1,065 reported cases in the 19th century, only 124 concerned an ecclesiastical subject (A Verification of the Faculty Jurisdiction SPCK, London, 1953, at p.29).  The Church courts were mostly concerned with probate, divorce and maritime law (memorably summarised by Sir Alan Herbert as ‘wills, wives and wrecks’).

Of the ‘Church’ cases reported, some concerned clergy discipline and faculties.  A large proportion concerned the alleged misfeasance of churchwardens and disputes over their election.  There were disputes over ‘sittings’, the rights of parishioners to occupy particular pews in the church or chapel, known as actions for ‘perturbation of seat’.  There were disputes between parishioners over their liability for church rates, or the amount due in respect of rates, or tithes.  There may be only one reported case concerning the rector’s liability to repair the chancel: Bishop of Ely v Gibbons (1833) 162 ER 1407.  When parochial feeling got out of hand, there were prosecutions for the offence of ‘brawling’ in the church or churchyard.

Of these classes of case, only the first two, clergy discipline and faculties, still occupy the ecclesiastical courts.  Prosecutions of churchwardens and other lay officers, and actions for perturbation of seat, were abolished by the Ecclesiastical Jurisdiction Measure 1963, s.82(2).  Compulsory church rates were abolished by an Act of 1868.  Most lay liability to pay tithes was extinguished by the Tithe Act 1936.  The ‘spiritual’ rector’s liability to repair the chancel was abolished by the Ecclesiastical Dilapidations Measure 1923.  Jurisdiction to enforce the lay rector’s liability was transferred to the secular courts by the Chancel Repair Act 1932.  Prosecutions for brawling were also transferred to the seculars courts by the Ecclesiastical Courts Jurisdiction Act 1860.

The creation of the Ecclesiastical Commissioners by Parliament, and the extensive legislation of the 19th century concerning pastoral reorganisation greatly reduced the scope of the ecclesiastical courts’ jurisdiction over the Church.  Statutory regulation of pastoral reorganisation and ecclesiastical fees abrogated many local customs, and thereby removed the need for ecclesiastical courts to adjudicate them. 

Eric Kemp traced the increasing involvement of Parliament in the regulation of ecclesiastical matters.  He calculated that between 1530 and 1760 there was an average of 2.5 ‘ecclesiastical statutes’ every year.  Between 1760 and 1820 the average rose to 10 a year.  Between 1820 and 1870 the average leaped to 25 a year (Counsel and Consent, SPCK, London, 1961 at p.172).

The Doctors were understandably unenthusiastic about this new ecclesiastical activism on the part of the Legislature.  In Bliss v Woods (1831) 162 ER 1235, which concerned the right officiate in a chapel, Sir John Nicholl found that the relevant Church Building Act ‘is so loosely and carelessly penned that it bears every appearance of having been hastily drawn’ (p.1249).  In Varty and Mopsey v Nunn (1841)163 ER 616, a chuch rate case, the Chancellor of London grumbled that ‘It has been no easy task to discover the true meaning of the local Act [which fixed the church rate in the area] but that Act is light itself compared with the obscurity of the Church Building statutes’ (p.621).

Writing in the mid-20th century, Eric Kemp also regretted the heavy incursion of Acts of Parliament into ecclesiastical law that occurred in the 19th century.  He argued that ‘a statute is not the best instrument for directing the spiritual life of a community [as] … the experience of the last hundred years has shown’ (An Introduction to Canon Law in the Church of England, Hodder and Stoughton, London, 1957, p.75).

This deprecation of statute law may be a little unfair.  Even if they had the inclination, the ecclesiastical judges and the clergy in Convocation had no power to effect significant structural reform of the Church so as to address the increase of population and urbanisation of the period.  Only Parliament could do this.  Structural reform was plainly necessary, to clear away the undergrowth of ancient and outdated ecclesiastical laws and thus enable the promulgation of new laws.  Kemp himself observed that in 1832 there were no fewer than 386 ecclesiastical courts (p.49).

In 1857 the responsibility for administering the law concerning wills and wives was transferred by Act of Parliament to newly established secular courts.  Jurisdiction over wrecks was transferred two years later.  The reforms of 1857 ‘sealed the fate of Doctors’ Commons’ (Squibb, p.96).  Despite protests, the land, buildings and library were sold of and the proceeds distributed among the remaining Doctors.

In ‘The Fall and Rise of Doctors’ Commons’ (Ecclesiastical Law Journal 1996), Paul Barber makes an interesting case that, although the college undoubtedly ceased to function in the mid-19th century, it was never truly dissolved.  He speculates optimistically that ‘another generation might see the Doctor’s scarlet in the Ecclesiastical Court’.

The case law of Doctors’ Commons is still cited in modern divorce and probate law.  It may well remain relevant to the understanding of Church of England doctrine.  The case law was, after all, based on that doctrine, and the doctrine was unaffected by the reforms of the mid-19th century.  The report The Canon Law of the Church of England (SPCK, 1947) referred to Lord Stowell’s ‘magnificent judgment in the case of Evans v Evans (1790) [161 ER 466] where he expounds the lifelong nature of the bond of Christian marriage … with a beauty of language, a lucidity and a reverence for the institution of marriage …’ (p.55).  That judgment no longer represents the English law of marriage, but that does not mean that it does not express the Church of England’s doctrine of marriage.

Custom in English Ecclesiastical Law

Some cases in the old ecclesiastical courts concerned disputes between clergy over the right to officiate in a particular church or chapel, and the right to receive the fees due for such official duties.  With no detailed statutory regulation of pastoral organisation and fees, such disputes could be difficult to decide, and often required an investigation of local custom.

Questions of custom tended to arise from disputes over money.  An incumbent would plead a local custom in order to extract a fee from a parishioner.  An impoverished curate would claim a customary right against the local incumbent in order to eke out a living from fees.

The case of Line v Harris (1752) 161 English Reports 54 concerned a dispute over which clerk was the lawful minister of a particular place of worship.  The Court of the Arches had first to decide whether the place was a parish church or a chapel.

Having reviewed the evidence, the Court concluded that the place was a chapel of ease.  This being the case, ‘as the vicar … had the cure of souls throughout the parish he might officiate in the chapel himself, as it appeared he did three times a year to preserve his title, and of common right the vicar had the nomination of the curate’ (p.58).

However, the Court acknowledged that this rule was not of universal application: ‘though of common right the nomination of the curate of a chapel of ease is in the [incumbent] … by custom or composition it might be in other persons’.

In Patten v Castleman (1753) 161 English Reports 74 and 143, the Rev Mr Castleman sued Mr and Mrs Patten for a marriage fee, even though they had not been married in his church or by him.  He claimed that he was entitled to the fee by custom, as Mrs Patten was one of his parishioners.

The Court observed that ‘If … no law has established a fee for actual marriage, it can be demandable only by custom.  If the custom is denied, a prohibition will go to try it at common law and it must be immemorial [thus very difficult to prove] … but if the custom is admitted then the spiritual court may proceed’.

Mr Castleman’s claim was rejected: ‘Clearly by common law this custom is not proved, for it is not sufficiently proved even by the ecclesiastical law, which requires a usage for 40 years’.  Moreover, ‘[even] if it had been proved, the custom would be unreasonable, for no ecclesiastical law warrants … a fee where no service is done’.  In the earlier case of Burdeaux v Lancaster (circa 1699) 88 English Reports 1242, a vicar claimed a customary fee for a baptism which he had not performed, again unsuccessfully.

The attitude of the ecclesiastical and secular courts to local customs was discussed by Rupert Bursell in ‘What is the Place of Custom in English Canon Law?’ (Ecclesiastical Law Journal, January 1989).

Bursell’s account makes clear that the ecclesiastical courts were readier to accept local custom than the secular courts.  Mediaeval canon law required a relatively short period of duration for a custom to become legally enforceable.  The period varied from 30 or 40 years (as in Patten v Castleman) to as little as 10 years.  Common law was much stricter, prepared to enforce a custom only if it had existed from time immemorial.

Canon law was even prepared to accept custom contra legem, that is, custom which positively contravened a written law.  Custom contra legem, by contrast, was anathema to English law.  Thus custom could never contradict statute law, but if there was no statute, the courts were prepared to give legal effect to a custom, though there was always a tension between the secular and ecclesiastical courts as to the period of time required to establish a legal custom.

After reviewing the case law, Bursell concluded that ‘the ecclesiastical courts continued to apply the canonical principles as to custom’ long after the Reformation (p.17).  Moreover, the secular courts acquiesced in this to some extent, because ‘a prohibition would not necessarily be issued’ when the ecclesiastical court enforced a custom of short duration, despite the much stricter common law test of custom.

Bursell’s account is interesting as a historical study, but ecclesiastical custom qua law is now almost non-existent.  The detailed modern statute law leaves little scope for custom.

It is true that the 19th century pastoral legislation did not entirely remove disputes over customary fees.  In Archdeacon of Exeter v Green (1913) Probate 21, the Archdeacon claimed that an ancient fee known as a procuration or proxy was legally due from each incumbent during his visitation.  One of the incumbents, the Rev Mr Green, disputed the Archdeacon’s claim.  The consistory court supported the archdeacon.  The judgment is interesting to read, but procurations along with other ancient fees were subsequently abolished by the Ecclesiastical Jurisdiction Measure 1963, s.82(3).

The appointment of churchwardens is one aspect of modern ecclesiastical law where custom is still important.  The Churchwardens Measure 2001 provides that, as a general rule, both churchwardens should be elected by the parishioners.  It seems that the incumbent may join in the election but does not have a special casting vote (s.5(6)).

However, the 2001 Measure permits existing customs in particular parishes (s.11(2)).  Thus if the incumbent customarily exercises his canonical right to appoint one churchwarden, the Measure permits this mode of election to continue.  Likewise, the Measure permits a custom in a particular parish of electing one churchwarden only, or three or more.

The test of a custom under the 2001 Measure is fairly stringent by the standards of ecclesiastical law.  To be valid the custom must have originated before 1925 (s.13(1)).  Parishioners may vote to abolish a custom, but abolition requires the consent of any one with a customary right to appoint a churchwarden, other than the incumbent (s.12).  The 2001 Measure is also subject to contrary provision in any local Act of Parliament or statutory scheme affecting a particular parish (s.11(1)).

The Chancellor, the Official Principal and the Vicar-General

Consistory courts are now regulated principally by the Ecclesiastical Jurisdiction Measure 1963.  A consistory court is there described as ‘a court of the bishop’ (s.1).  S.13 provides that the chancellor is ex officio the official principal of the bishop.

According to Halsbury’s Laws of England

‘the chancellor acts in the capacity of the official principal of the bishop … [but] the chancellor’s authority is derived from the law.  He is a Queen’s judge, in one of the Queen’s courts.  He acts in the court … as an independent judge, uncontrolled by the bishop.  [However] the processes of the consistory court generally run in the name of the bishop … they may, however, run in the name of the chancellor as official principal of the bishop’ (4th edition, volume 14, para 1275).

This description of the chancellor’s office is somewhat confused.  The consistory court is the bishop’s court, and the chancellor is the bishop’s official principal and acts in his name.  Yet the chancellor is independent of the bishop, the Queen’s judge, not the bishop’s.

It is argued that the root of this confusion is that the chancellor, though designated as such by the 1963 Measure, does not exercise the jurisdiction of a chancellor.  It is true that s.6 of the 1963 Measure preserves all the then existing jurisdiction of the consistory court that is not expressed abolished by the Measure.  However, almost all the chancellor’s jurisdiction was abolished by statute, or else became practically extinct, in the 19th century, long before 1963.

The Patronage (Benefices) Measure 1986 confers jurisdiction on the chancellor to hear an appeal from the registrar’s refusal to register an applicant as patron of a benefice in the diocese (schedule 1(9)).  This may constitute a revival of the chancellor’s ancient jurisdiction qua chancellor.  (There is no reported case of this 1986 jurisdiction having been exercised.)  However, in exercising the faculty jurisdiction over churches and churchyards and the solemnisation of marriage in church, the chancellor is acting qua the bishop’s vicar-general.

Phillimore’s Ecclesiastical Law makes this clear (2nd edition 1895, pp.928-30).  Phillimore suggests that the title ‘chancellor’ is of secular origin, ‘grown into use in imitation of the like title in the state’ (p.928).  He goes on:

‘This office (as it is now understood) includes in it two other offices … official principal and vicar-general.  The proper work of an official is, to hear causes between party and party … which are matters of temporal cognisance, but have been granted to the ecclesiastical courts by the concessions of princes.  The proper work of a vicar-general is, the exercise and administration of jurisdiction purely spiritual, by the authority and the direction of the bishop … to the preserving of discipline and good government in the church’.

Thus the chancellor is, as Halsbury says, the Queen’s judge and independent of the bishop, when he is exercising his secular jurisdiction to resolve disputes between parties.  However, when exercising spiritual jurisdiction over the governance of the Church, the chancellor is acting as the bishop’s vicar.

The reason for this is obvious.  The bishop has the principal responsibility for ecclesiastical governance in the diocese.  The administration of justice between disputing parties, by contrast, is a secular function.  It is therefore exercised on behalf of the Monarch rather than the bishop.

Phillimore makes clear that the chancellor’s secular jurisdiction was a contentious jurisdiction:

‘Voluntary jurisdiction is exercised in matters which require no judicial proceeding, as [formerly] in granting probate of wills … [and now] sequestration of vacant benefices, institution and such like; contentious jurisdiction is, where there is an action or judicial process, and consists in the hearing and determining of causes between party and party’ (p.930).

Unfortunately the draftsman of the 1963 Measure seems not to have appreciated the distinction between the spiritual and secular functions of a chancellor / vicar-general.  The Measure makes only the briefest reference to the office of vicar-general, providing that ‘Nothing in this Measure affects … the mode of appointment, office and duties of Vicars General …’ (s.83(2)).

In The Faculty Jurisdiction of the Church of England (2nd edition 1993), G.H Newsom suggested that, in practice, the chancellor is always appointed vicar-general as well.  He correctly observes that ‘it is as vicar-general that the chancellor grants marriage licences’ (p.15).  However, he did not appreciate that all other ecclesiastical licences are similarly the proper responsibility of the vicar-general.  A faculty and a licence are really the same thing, a permission to do something.  The terms are used interchangeably in the older ecclesiastical reports.