Canonical Obedience

Feudal Origin

Archbishops, bishops and lesser clergy are said to be bound to each other by a relationship of canonical obedience.  Canon C1(3) of the Revised Canons recites that

‘According to the ancient law and usage of this Church and Realm of England, the inferior clergy … owe canonical obedience in all things lawful and honest to [their] bishop … and the bishop of each diocese owes due allegiance to the archbishop of the province as his metropolitan’.

Canon C14 requires the bishops and clergy to take an oath of obedience to their respective superiors.  Lay readers and lay workers are also required to make a declaration of obedience to the bishop (Canons E7 and E8).

The account of canonical obedience in Canons C1(3) and C14 indicates its feudal character.  The concept dates from the time when authority was defined in terms of the relationship between a subordinate or ‘vassal’ and his immediate superior.  Everyone owed allegiance to his immediate superior, and did homage to him.

Such a concept is hard to reconcile with modern ideas of the rule of law and of a common authority to which all persons, of whatever degree of superiority, are subject.  There are also many authorities in the modern Church besides bishops and Archbishops to which obedience is now required on the part of clergy.

Norman Doe criticises Canons C1(3) and C14.  He argues that one or other Canon is

‘legally superfluous: the oath amounts to a promise to fulfil a pre-existing obligation … [it] has merely symbolic significance … it is  unclear when an episcopal instruction is not honest and it is unclear whether an episcopal order which is lawful but not honest might be disobeyed’ (The Legal Framework of the Church of England (1996) Clarendon Press, Oxford, pp.213-14).

He also points out that churchwardens do not swear obedience to the bishop, even though they are the bishop’s officers (p.241).  The reason for this may be that the office of churchwarden is of post-feudal origin.

Canonical obedience was discussed in the Bishop of St. Davids case (1699) 91 English Reports 126.  The Bishop was tried by the Archbishop for alleged simony.  The secular court refused to restrain the Archbishop’s disciplinary action.  Chief Justice Holt stated that ‘By the common law, the Archbishop has a metropolitical jurisdiction … Archbishops are over bishops, as well as bishops over the other clergy’ (p.127). 

Thus canonical obedience in the Church of England derives its force from common law.  It originated in mediaeval canon law, but its operation within the Church of England requires its acceptance by, or incorporation into, English law.

Long v Bishop of Cape Town

Lord Kingsdown provided an admirably succinct and helpful definition of canonical obedience in the case of Long v Bishop of Cape Town (1863) 15 English Reports 756:

‘canonical obedience does not mean that the clergyman will obey all the commands of the Bishop against which there is no law, but that he will obey all such commands as the Bishop by law is authorised to impose’ (p.776).

The diocese of Cape Town was established for the first time in 1847.  The Bishop was appointed by letters patent of the Crown.  The letters patent conferred the usual powers of a bishop over lesser clergy, namely the rights to confer institution to benefices, to grant licences and to exercise discipline.

In 1848 the Bishop ordained the Rev Mr Long and licensed him to officiate in a church of which he, the Bishop, was trustee.  Mr Long then took the oath of canonical obedience.

In 1853, the diocese of Cape Town was divided into three new dioceses.  The Bishop resigned so that the arrangement could take effect, and was then reappointed to the newly constituted diocese under letters patent very similar to those of 1847.  However, between 1847 and 1853, the constitution of South Africa changed fundamentally.  South Africa was granted ‘home rule’.  Thus it became self-governing, with a legislature of its own.

Relations between Mr Long and the Bishop deteriorated in 1856 when the Bishop convened a diocesan synod and summoned Mr Long to attend it.  Mr Long objected to the synod and declined to attend.  The Bishop suspended him for disobedience but Mr Long ignored him and carried on officiating.  The Bishop then revoked his licence altogether.  Mr Long went to court to prevent the Bishop dispossessing him. 

The Privy Council supported Mr Long.  It was true that Mr Long had submitted to the Bishop’s jurisdiction by accepting office from him and by taking the oath of canonical obedience.  However, the Bishop had no power to convene the diocesan synod or summon Mr Long to it.  He therefore had no lawful cause to suspend Mr Long for refusing to attend, nor to revoke his licence for ignoring the illegal suspension.

The 1853 letters patent had not been effective to create any jurisdiction, because they did not have the sanction of the newly established South Africa legislature.  Moreover the letters patent did not purport to confer power on the Bishop to convene a synod and require attendance.  Therefore no decision of the synod could bind others.

Lord Kingsdown’s definition, and the Privy Council’s decision in this case, make clear that canonical obedience, despite its feudal origin, really means obedience to the law rather than to the superior personally.  The superior is entitled to obedience only when exercising powers conferred by law.

Obedience and Professional Discipline

Canonical obedience should therefore not be confused with the ‘evangelical counsel’ of obedience, which involves treating the will of the superior as the will of Christ.  Such obedience is not, and never has been, required of the merely ‘secular’ clergy.

Clerical disobedience is now dealt with under s.8(1) of the Clergy Discipline Measure 2003.  S.8(1) provides that it is a disciplinary offence for a clergyman to

(1) do any act in contravention of the laws ecclesiastical or

(2) fail to do any act required by the laws ecclesiastical.

According to the doctrine of canonical obedience stated by Lord Kingsdown in Long v Bishop of Cape Town, a clergyman will be guilty of disobedience to an order only if the bishop or other Church authority giving the order has the legal right to do so.  A clergyman is within his rights to disregard an order that is given without proper authority.

It is also argued that it is a defence to a complaint of disobedience, even to a lawful order, if the accused clergyman was not adequately notified of the order, or if the order was not clearly expressed to be an order rather than a suggestion.

The particular responsibility of all ordained, and lay, ministers is ministry of the Word and the Sacraments.  The general rule is that a minister must not only be ordained but also be authorised or licensed by a bishop, in order to exercise this ministry.  The bishop also has the primary responsibility for clergy discipline (cf s.1 of the 2003 Measure).

The bishop may therefore be described as the professional authority of his clergy.  He has a responsibility over them similar to that of the General Medical Council over doctors, or the Bar Council over barristers.

The Bishop, the Queen and the Pope 

The Monarch is the Supreme Ordinary of the Church of England.  Perhaps he or she should also be the object of canonical obedience in this capacity.  However, the Monarch is not referred to in Canon C1(3).  The Monarch’s ecclesiastical supremacy, like the office of churchwarden, is of post-feudal origin. Instead Canon C13(1) requires all ecclesiastical officeholders and ordination candidates to take the oath of allegiance to ‘be faithful and bear true allegiance to [the Monarch], her heirs and successors, according to law’.  This underlines the point that the bishop’s superiority over his clergy is limited by law.

Thus English clergy owe obedience to their bishop, but subject to their allegiance to the Monarch.  In the Roman Catholic Church, clergy are required to show ‘reverence and obedience’ both to their bishop and to the Pope (Code of Canon Law 1983, Canon 273).  This makes the point that a Catholic bishop shares his authority over his diocese with the Pope, on account of the latter’s office ‘uniquely committed by the Lord to Peter’ (cf Canon 331).  The Pope is not merely the bishop’s feudal superior.

Roman Catholic clergy are expected to ‘accept and faithfully fulfill’ any responsibility entrusted to them by the Church authority (Canon 274.2).  However, a priest who disputes his bishop’s decision on a particular responsibility has recourse to Rome, a process which resembles judicial review in English law (see Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.205).  The modern Roman Catholic doctrine of canonical obedience therefore resembles the English doctrine, being ‘restricted to those matters that are prescribed by … law’ (op. cit, p.201).

Ecclesiastical Corporations

The Corporation Aggregate

In Foundations of the Conciliar Theory (Cambridge University Press 1955), Brian Tierney describes how the constitutional structure of the mediaeval Church centred on the corporation.

The early Church regarded itself as the Body of Christ (p.138).  The bishop was the personification or representative of the Church (cf. pp.125-6).  Drawing on Roman law, mediaeval canonists developed these primitive theological concepts into a highly complex doctrine of corporate governance.

The mediaeval Church was ‘a federation of semi-autonomous units, of innumerable greater or lesser corporate bodies.  Bishops, abbeys and priories, colleges, chantries and guilds, religious orders, congregations and confraternities’ (p.97).  A mediaeval bishop, unlike a modern Church of England bishop, was usually ex officio the head of his cathedral chapter.

Discussion of corporate governance focused on the respective powers of the head of the corporation and the members of the corporation as a whole (for example, a bishop and chapter).  Could the head unilaterally ‘bind’ the whole body?  Was he obliged to obtain the members’ consent to a particular decision, or was it sufficient merely to consult them, to take their counsel (p.109)?

As the key to the control and enjoyment of property, corporate rights were jealously guarded and disputed, creating ‘a rising flood of litigation in the high middle ages’ (p.97).  Every corporation had its own peculiar customs and foundational charters, which required judicial investigation if there was a dispute.

This mediaeval style of corporate governance, based on local custom and special privilege, is still discernible in the constitutions of English cathedrals and Oxbridge colleges.

The general trend of the mediaeval litigation apparently favoured the members of the corporation against the head.  It was a force for collegiality, and against autocracy.  Mediaeval canon law effected ‘a gradual extension and systematization of the rights of the members of the corporation in relation to its head’ (p.130).  From this mediaeval development we can trace the distinctive autonomy that English cathedrals retain to this day.

The Corporation Sole

However, with the exception of cathedrals, the governance of the modern Church of England bears little resemblance to the mediaeval corporatism described by Tierney.  The post-Reformation Church was characterised by a rather different corporation, the corporation sole.

Incumbents of benefices, bishops and various ecclesiastical dignitaries are said to be corporations sole.  A corporation sole effectively divides a single human being into two legal persons.  The Reverend John Smith may be appointed Vicar of Barchester.  As such, he is both a physical person (John Smith) and a corporation sole (Vicar of Barchester).

The origin of the corporation sole was discussed by F.W Maitland in an article published in 1900 (vol 16 Law Quarterly Review, p.335).  Maitland noted that a corporation sole is anomalous for two reasons:  

(1) it is not a fully independent legal person.  A corporation aggregate of the mediaeval type, like a modern limited company, has an existence independent of its members.  The corporation sole depends for its existence on a particular physical person (for example, a bishop or incumbent).  If the bishop or incumbent dies or resigns the corporation sole cannot continue.  It is automatically dissolved, and is ‘reconstituted’ only when a new bishop or incumbent is appointed.

(2) a corporation sole comprises only one physical person, not a group or college of persons.  Yet a corporation generally implies a collegiate body of persons.

It might be logical to reconstitute the corporation sole as a purely fictitious person, like a corporation aggregate or modern limited company.  This never happened, according to Maitland, bcause it ‘would have necessitated a breach with traditional ideas of the parson’s estate’.  The parson was perceived as a landowner, not merely as a steward or administrator of Church property, even though the word ‘rector’ means steward.

The ecclesiastical corporations described by Tierney originally held their property in common.  However, Maitland relates that these corporate tenures began to disintegrate in the later middle ages, as bishops, deans and other chapter members acquired property entitlements that were independent of each other.  Hence the need for a corporation sole.

According to Maitland, the notion of the incumbent as a corporation sole was largely Sir Edward Coke’s idea.  (Coke lived from 1552 to 1634, and so post-dated the break with Rome.)  Coke drew on some slim 16th century authorities in support of his theory.  There are no pre-16th century authorities.  Thus the corporation sole is unknown to Roman Catholic law.

Maitland attributes the general acceptance of Coke’s corporate theory to its flexibility.  It prevented the incumbent from squandering or alienating benefice property, giving it to his family, to the prejudice of his successor and the Church.  However, it also gave the incumbent sufficient ownership to protect the property against trespassers and despoilers.

Modern legislation affirms that incumbents remain corporations sole (Mission and Pastoral Measure 2011, ss.34(2) and 37(5)).  The Ecclesiastical Offices (Terms of Service) Measure 2009 replaced the old ‘parson’s freehold’ with ‘common tenure’, but still affirmed that former freeholders remain corporations sole (s.9).

However, corporations sole are rather superfluous in the modern Church of England.  Much of their traditional property has been taken away from them.  Benefice glebe now vests in the local diocesan board of finance, no longer in the incumbent (Endowments and Glebe Measure 1976, s.15).  As originally drafted, the Terms of Service Measure provided for the transfer of parsonages to the legal ownership of the parsonages board, but the General Synod rejected this provision.

Nevertheless. although the incumbent remains freeholder of the parsonage, the freehold is fairly nominal.  Tenure of the parsonage is closely regulated by statute law, and resembles that of a modern tenant.  The incumbent’s rights over the parish church and churchyard are also closely regulated by statute.  Church and churchyard are, of course, subject to the ever-vigilant jurisdiction of the ecclesiastical courts.

Bishops do not seem to have any corporate property nowadays.  Most episcopal property vests in the Church Commissioners.  The Episcopal Endowments and Stipends Measure 1943 empowered the Commissioners (who were then the Ecclesiastical Commissioners) to prepare schemes vesting the official residence and endowments of every see in themselves.  They could then lease the residence back to the bishop for his occupation, and pay him an ‘appropriate’ stipend.

The ironic consequence of the 1943 Measure is that the bishop’s proprietary status became inferior to that of many of his clergy.  Rectors remain the freeholders of their churches, churchyards and residences, whereas the bishop is the mere tenant of the Commissioners.  The cathedral, which is the bishop’s church, vests in the cathedral corporation, a statutory body comprising the chapter, the cathedral council and the college of canons (Cathedrals Measure 1999, ss. 13, 9(1)(a)).

Modern Church authorities with responsibility for Church property are generally incorporated by statute.  Thus parochial church councils and diocesan parsonages boards and patronage boards are statutory corporations (Parochial Church Councils (Powers) Measure 1956, s.3: Repair of Benefice Buildings Measure 1972, s.1(5); Patronage (Benefices) Measure 1986, s.26(1)).

The diocesan board of finance must be incorporated as a limited company under the Companies Acts (Diocesan Boards of Finance Measure 1925, s.1(2)).  The Archbishops’ Council is a body corporate (National Institutions Measure 1998, sch.1.2.8).

However, the synods of the Church of England, the General Synod and the diocesan and deanery synods, are not corporations.  Nor is the annual parish meeting.

Persons and Things

In modern Roman Catholic law, as found in the Code of Canon Law 1983, corporations (described as personae iuridicae, juridical persons) may be

(1) of persons or

(2) of things (rerum).

A corporation of persons must have at least three members (canon 115.2), so there can be no corporations sole.  Corporations of things (also known as autonomous foundations) resemble trusts.  They must be directed by at least one trustee or by a college of trustees (115.3).  The trustees ‘act … as the directing personality of the collection of inanimate goods’ (Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.82).

Unlike an English trust, a foundation may incorporate a purely spiritual thing, not merely real and personal property.

Although the corporation sole seems to be unknown to modern Roman Catholic law, at least one Roman Catholic officeholder uncommonly resembles a corporation sole – the Pope himself.

Tierney relates that the papacy did not fit easily into the corporate, collegial structure of the mediaeval Church.  The absolute personal sovereignty claimed for the Pope jarred with a constitutional structure in which authority was exercised by a group rather than an individual, and in which the power of the head was limited.

There were two possible candidates for a papal ‘corporation’

(1) the college of cardinals and

(2) general (or ecumenical) councils of the Church.

The cardinals were the nearest equivalent of a papal chapter.  However, the cardinals’ claim to jurisdiction was weak, since the sacred college was essentially a high mediaeval development, unsupported by any ancient tradition in the Church (op.cit, p.68).

Ecumenical councils had a much stronger historical claim to universal jurisdiction, and some canonists were prepared to admit of cases in which the Pope was bound by conciliar decisions (p.49).

Modern Roman Catholic law provides that the Holy See itself (the sedes) is the corporation, and not the incumbent Pope (canon 113.1).  Moreover, the incorporation of the Holy See is by divine law, not mere human law.  The term Apostolic / Holy See is also deemed to include the Roman curia (canon 361).

It has been suggested that the identification of the curia with the Holy See has no theological significance, but is simply for administrative convenience, ‘a simplified way of identifying the agencies to which recourse must be made when a matter is reserved to the Apostolic See’ (Coriden, Green and Heintschel, p.300).  It should be viewed ‘from a canonical rather than a theological perspective’.  Thus no divine law is claimed for the curia.

The incorporation of the Holy See rather than the Pope personally is consistent with the general rule of Roman Catholic law, since the sedes is a divinely-constituted, and therefore ‘spiritual’, thing.  Things are capable of incorporation as well as people.  It affirms the divine origin of the papacy even when the Holy See is vacant, and even when it is occupied (as it undoubtedly has been on occasions) by an incumbent who is manifestly unworthy.  It affirms that the papacy is a trust, not the absolute possession of the incumbent.

The corporate status of bishops and incumbents (parish priests) is another major difference between English law and Roman Catholic law.  Coke and Blackstone were clear that dioceses and parishes have no legal personality of their own.  In English law a diocese is ‘a legal division of a province and the circuit of a bishop’s jurisdiction’ (Halsbury’s Laws, 5th edition 2011, vol 34, para 164, citing Coke).  An ecclesiastical parish is merely ‘a district’ (para 262, citing Blackstone).

In Roman Catholic law, as in English law, dioceses and parishes are usually (though not always) constituted on a territorial basis.  However, in contrast to English law, both also have a corporate identity.

Thus a diocese is ‘a portion (portio) of the People of God’ (canon 369), not just a territory or jurisdiction.  Likewise a parish is defined in corporate terms as ‘a certain community of Christ’s faithful … within a particular Church’ and is a corporation at law (canon 515).

However, the parish priest ‘acts in the person of the parish’ (parochus personam gerit paroeciae) in all legal matters (canon 532).  It is possible to see a resemblance between this status and that of the English parson, who was so called because he was persona ecclesiae in the parish.  He incorporated the Church in his own person.

The Limits of Ecclesiastical Incorporation

Modern Roman Catholic law affirms that the Catholic Church as a whole, like the Holy See, is a corporation by divine law (canon 113.1).

Coke explained the corporate nature of the Church of England at the Reformation:

‘By the ancient laws of this realm … England is an absolute empire and monarchy consisting of one head, which is the King, and of a body politic … which the law divideth into … the clergy and the laity, both of them next and immediately under God, subject and obedient to the head …’ (Cawdrey’s case (1591) 77 English Reports 1, at p.10).

Centuries later, the Church of England’s identity was discussed in the case of Marshall v Graham (1907) 2 King’s Bench 112.  This may have been the last judicial attempt to define the Church of England.  The case concerned the prosecution of two fathers for withdrawing their children from school on Ascension Day.

In their defence, the fathers pleaded (successfully) a statutory provision that permitted a child to be withdrawn from school ‘on any day exclusively set apart for religious observance by the religious body to which its parent belongs’ (p.113).  Thus the statute did not refer to the Church of England specifically, but the fathers claimed to belong to the Church of England.

Mr Justice Phillimore stated that ‘the accepted legal doctrine is that the Church of England is a continuous body from its earliest establishment in Saxon times’ (p.126). 

Why is this the accepted legal doctrine?  Phillimore J cited Middleton v Crofts (1736) 26 English Reports 788, in which ‘it was said the canons of 1603 might be enforced so far as they were declaratory of the established canon law before the Act of Submission [of 1533, i.e before the Reformation]’.  He also cited his father’s judgment in Martin v Mackonochie (1868) Law Reports 2 Admiralty and Ecclesiastical 116, which referred to ‘the identity in law of the Church of England before and after the Reformation’.

A modern Church of England liturgy confidently asserts that ‘We are the Body of Christ.  By the one Spirit we were all baptised into the one Body’.  This echoes the religious belief of the early Church, as described by Tierney.

However, this simple faith in the modern Church’s continuing corporate identity is not shared by Halsbury’s Laws.  There is something of a divergence between liturgy and law on this point.

The modern statutory corporations of the Church of England are plainly necessary for the Church to hold and deal with property.  Corporations sole, by contrast, are idiosyncratic and anachronistic.  However, there seems to be little connection between the Church of England’s corporations, whether ancient or modern, and its religion.

Moreover, neither species of corporation has much to do with the Church’s lay worshippers, the vast majority of whom do not belong to any ecclesiastical corporation, or indeed with most of its clergy.  Team vicars, assistant curates and priests-in-charge are not corporations sole, only the senior clergy.

Halsbury’s Laws offers a definition of a ‘church’ as ‘the quasi-corporate institution which carries on the religious work of the denomination whose name it bears’ (para 2, emphasis supplied).  Later it says that

‘The Church of England … may be considered as an aggregate of individuals.  This aggregate evades easy definition or description … the Church of England as such is not a corporation’ (para 51, emphasis again supplied).

Phillimore J was no doubt correct to conclude that the ‘body’ of the modern Church of England is the same in English law as that of the mediaeval Church, but it still bears little resemblance to the one body politic ‘under God’ described by Coke.  The religious body has not disappeared in modern times but, as Halsbury implies, it has become somewhat decomposed.  That is the effect of secularisation.

Coke’s concept of a body politic united under the headship of the Monarch, and his definition of a diocese as a territory and circuit of jurisdiction, also allow little scope to the now-fashionable notion of the bishop as the personification or representative of the Church.

In Free Church of Scotland v Lord Overtoun et al (1904) Appeal Cases 515, the House of Lords described a ‘church’ as a ‘religious community’, rather than as a religious body (pp.612-13).  Generally English (and British) law seems to treat Church communities as associations rather than corporations, a looser configuration of persons.

The Constitutional Doctrine of the 39 Articles

The Universal Church

Article 19 refers to the visible Church of Christ, and thereby affirms that the Church may be identified on earth, as well as in Heaven.  Article 26 makes another reference to the visible Church, and states that it contains evil elements as well as good.  In the 1662 Ordinal, the Church is described as the Spouse and Body of Christ.

The visible Church is described only as

‘a congregation of faithful men, in the which the pure Word of God is preached, and the Sacraments be duly ministered according to Christ’s ordinance’ (Article 19). 

Thus the defining characteristic of the Church is a true ministry of Word and Sacrament.  The Church is thereby a ‘witness and keeper of holy writ’ (Article 20).

In connection with this ministry of Word and Sacrament, Article 20 asserts that

‘The Church hath

[1] power [from God] to decree Rites or Ceremonies, and

[2] authority [from God] in Controversies of Faith’.

In a commentary on the 39 Articles, E.J Bicknell draws attention to the different choice of words in Article 20, ‘power to decree’ (statuendi jus) and ‘authority’ (auctoritas).  He suggests that the Church’s ‘power’ over rites and ceremonies (i.e worship) is legislative in character, whereas its ‘authority’ over controversies of faith (i.e doctrine) is judicial in character.

The legislator may change the law, as circumstances demand.  The judge may only declare what the law already is.  Thus new forms of worship may be introduced by the Church, but not new doctrines.  The Church can only declare or clarify existing doctrine (3rd edition 1955, pp.249-53).

Article 34 implies a principle of subsidiarity by affirming that ‘particular or national Churches’ may ‘ordain, change and abolish, ceremonies or rites of the Church ordained only by man’s authority’.  This is a reference to worship, not doctrine.

In discharging its ministry of Word and Sacrament, the Church is not protected from error.  The intercessory prayer in the 1662 Holy Communion service asks ‘that all they that do confess thy holy Name, may agree in the truth of thy holy Word’.  The errors of the late mediaeval Church were, of course, the justification for the Reformation.

Article 20 provides that ‘it is not lawful for the Church to ordain anything that is contrary to God’s Word written’, but it is clearly possible for particular Churches to do so.  The Churches of Jerusalem, Alexandria, Antioch and Rome have erred (Article 19), and so also have General Councils of the Church (Article 21).

Article 23 provides that the ministers of Word and Sacrament in the Church must be ‘chosen and called to this work by men who have publick authority given unto them in the Congregation’.

Bicknell points out that the word ‘called’ is rendered cooptati in the Latin text.  From this he concludes that Article 23 requires that those with the power to choose and call new ministers must themselves be ministers of Word and Sacrament, as distinct from secular officials (p.321).

A Local Episcopate

However, Article 23 does not suggest that a particular rite (laying on of hands etc) is necessary to constitute lawful ministers.  Nor does it refer to episcopal ordination.  The Word and Sacraments come from God, as does the duty to administer them.  However, the ministers are chosen and constituted as such by the Church.  Moreover, the precise structure of the ministry is determined by the Church, and this ministry does not have to be episcopal in character.

The 1662 Ordinal emphasises the local character of the episcopal ministry in England.  The Preface to the Ordinal states that the threefold ministry of bishops, priests and deacons has existed ‘from the Apostles’ time’.  The purpose of the Ordinal is ‘that these orders may be continued and reverently used and esteemed in the Church of England’.

This wording indicates that the basis of the threefold ministry is historical only, and that its retention is a matter of choice by the Church of England, under the terms of Article 34, not in obedience to any divine command.

The Ordinal, like Article 23, indicates the tension between the local, ‘particular’ Church and the universal Church.  The candidate is required to be called by God to the ministry, and is ordained to ‘the Church of God’, not to the Church of England.  However, the human response to the divine calling is determined by ‘the due order of this realm’.  This further indicates the authority of the local Church to settle the structure of its ministry, while affirming the divine origin of that ministry.

The 1662 Prayer Book also indicates the local character of the episcopate.  In the Litany, there is a prayer for ‘the holy Church universal’.  This is followed by prayers for the Monarch and the royal family, which are in turn followed by prayers for the bishops and other clergy, Parliament and government, and the judiciary.

Thus the sequence of the Litany is

Church – Monarchy – Clergy – Parliament and government – judiciary. 

The intercessory prayer in the communion service follows the same sequence.

It is clear from this sequence that the bishops and clergy referred to are those of the Church of England only.  No prayers are offered for any universal episcopal ministry, because no such ministry is recognised.  The bishops and clergy are prayed for in the context of the state only.  It is the state and the nation as a whole, not just its clergy, that are seen as a constituent part of the universal Church.

Modern liturgies, by contrast, imply a universal episcopal ministry, which presumably includes the Roman Catholic and Orthodox Churches but excludes most Protestant Churches.  Thus the 1662 liturgy has been discreetly rewritten.  The modern sequence is now

Church – bishops and clergy – Monarchy, Parliament etc. 

The episcopal ministry is identified with the universal Church, no longer with the local state Church only.

In the early modern period, the Church of England could hardly assert otherwise than that episcopal ministry is local, not universal.  During the Reformation era, most Protestant countries, England’s allies and co-religionists, had abolished the historic episcopate and were distinctly hostile towards it, associating it with popery and error.  Many English Protestants shared this hostility.  Some of the 39 Articles were derived from the Lutheran Confession of Augsburg.

A Federation of Godly Princes

Article 23 raises the question of ‘publick authority’, the power of governance in the Church.  This power is distinct from the ministry of Word and Sacrament.  Article 37 affirms that the power of governance vests in the secular ruler.  The power is ‘that … prerogative which we see to have been given always to all godly princes in holy Scriptures by God himself’.

Canon 2 of 1603 enlarges upon this statement, asserting that

‘the King’s Majesty hath … the same authority in causes ecclesiastical that the godly kings had among the Jews and Christian emperors of the Primitive Church …’.

Article 37 distinguishes between the power of governance and the ministry of Word and Sacrament.  Both come from God, but they are distinct.  Thus the secular ruler does not ex officio participate in the ministry.

Article 34 distinguishes between the universal Church and ‘particular or national’ Churches, of which the Church of England is one.  It does not affirm the right of particular Churches unilaterally to determine ‘controversies of faith’, only rites and ceremonies.  Article 37 is clear that the secular ruler’s jurisdiction over his own particular Church is not subject to any foreign jurisdiction, including that of the Bishop of Rome.

Article 21 also alludes to the distinction between the universal and the particular Churches.  It provides that General (i.e ecumenical, worldwide) Councils of the Church may be convened to determine religious questions, just as they had been during the later Roman Empire and the middle ages, but only at ‘the commandment and will of princes’.

It is possible to discern an early form of international law here: 

(1) There is one universal Church and one ministry of Word and Sacrament.  However, the universal Church comprises a number of particular or national Churches, each ruled by its own ‘godly prince’, an ecclesial United Nations. 

(2) There is only one ministry, which may or may not be episcopal in character, but the structure of the ministry within each particular Church is a matter for that Church only. 

(3) Each godly prince and particular Church has a jurisdiction independent of the others.  However, a General Council may be called with the agreement of the godly princes, as a forum for resolving controversies of faith.

An international Church governed by a federation of godly princes was plausible in the early modern, pre-secular era, and not only to Protestants.  The association of the Church of Rome with the Churches of Jerusalem, Alexandria and Antioch in Article 19 may have reflected an expectation that the former would soon go the way of the latter three.  The reformers may have envisaged a new federation of Churches, perhaps with Calvin’s Geneva as the new Rome.  Catholic princes did not go so far as to repudiate all papal authority, but they too asserted a jurisdiction over their own particular Churches.

Of course, this internationalist ecclesiology has not survived in the modern secular era.  The papacy did not come to an end, the godly princes did.  Modern international law has been drained of any religious content beyond certain ethical norms and ‘human rights’.

The English monarchy was not abolished, of course, and to this day the Monarch remains Supreme Governor of the Church.  Nevertheless, although the Church of England remains ‘established by law’, the English state has otherwise become thoroughly secularised.  The royal supremacy is now justified on political, not religious, grounds.  The wording of the modern Canon concerning the royal supremacy is worded ‘We acknowledge’, not ‘We believe’ (Canon A7).

Even this Canon only applies in England.  The Churches of Ireland and Wales were disestablished in 1869 and 1920 respectively.  As the British Empire progressively disintegrated, the Anglican Churches in the former colonies were re-constituted on an autonomous, voluntary basis.  Thus the Anglican Communion emerged.

The Modern Difficulty

Secularisation and disestablishment have therefore deprived the Anglican Church of the doctrine of governance provided in its presecular formularies.  The royal supremacy is not even mentioned in modern commentaries on Church of England doctrine.  Yet it would be surprising to find a commentary on Roman Catholic doctrine which did not discuss papal supremacy.

Indeed the Anglican Church may be unique among Christian communities in having no clear religious claim of authority.  The Roman Catholic and Orthodox Churches have the Pope and Patriarchs with their claim to be successors of the Apostles.  The Church of Scotland has its God-given presbyterian structure.  Methodists and Baptists have their congregations with the promise of the Lord’s Presence ‘where two or three are gathered together in My Name’.  However, the Anglican Church no longer has its federation of godly princes.

In the 19th century, the tractarians responded to this difficulty by developing a doctrine of Apostolic Succession similar to that of the Roman and Orthodox Churches.  This doctrine became fashionable in the 1830s and 1840s and attracted judicial notice.  It was briefly referred to in the case of R v Millis (1844) 8 English Reports 841 at p.916, and probably influenced the court’s conclusion on ‘holy orders’ in Attorney-General v Glasgow College (1846) 63 English Reports 908.

The effect of the new tractarian doctrine was brilliantly described by Hensley Henson:

‘Episcopacy which, under Elizabeth [I], had been justified as a political necessity, was, under Victoria, exalted as a religious principle.  National establishment which, under the one Queen, had been urged as religiously indispensable, declined, under the other Queen, into a temporary expedient’ (The Church of England, Cambridge University Press, 1939, p.253).

As Hensley Henson implied, and as our analysis has shown, the first difficulty with the tractarian-inspired doctrine of a universal episcopate descended from the Apostles is that it is incompatible with the constitutional doctrine contained in the 39 Articles.  However, it is also hard to reconcile with the present structure of synodical government. 

It is true that modern synodical government in the Church of England (probably in most other Anglican Churches too) scrupulously respects the distinctness and the primacy of the episcopal order, and the bishop’s traditional functions of pastoral oversight and discipline within the diocese.  This reflects the tractarian influence. 

Nevertheless, English bishops do not have Apostolic authority as the Roman Catholic and Orthodox Churches understand this.  They have no power unilaterally to legislate for their Church.  On the contrary, their power is defined and limited by their Church’s constitution.  They officiate within their particular Church, rather than over it. 

Thus any ‘Apostolic’ authority vests in the Church as a whole, not in the bishops alone.  The most that can be said is that the bishops have the largest single share of this authority.

The tractarians themselves came to appreciate the difficulty of reconciling their doctrine with the ecclesiastical system.  Some, though not all, became Roman Catholics.  The most famous of them, Blessed John Henry Newman, later taunted his former co-religionists’ confusion over ecclesiastical governance:

‘In some points you prefer Rome, in others Greece, in others England, in others Scotland: and of that preference your own private judgment is the ultimate sanction’ (Anglican Difficulties and Other Writings, selected by W.S Lilly 1882, p.297).

It is interesting to compare the modern English constitution with the constitutional provisions of the 39 Articles.  In recent decades, and despite vociferous opposition, the secular constitution has been radically altered to confer considerable legislative, executive and judicial power on overseas institutions, such as the European Court of Human Rights and the various institutions of the European Union.  These constitutional changes were inspired by internationalism.  As discussed, the 39 Articles were also inspired by internationalism, albeit of a religious, not secular, character. 

Yet the modern ecclesiastical constitution of England, in contrast to its secular constitution and despite the constitutional provisions of its own formularies, remains resolutely insular in character.  For all its warm ecumenical expressions, the modern Church of England does not acknowledge any ecclesiastical jurisdiction outside itself.

Ecclesia and Ecclesiastical Law

Modern commentators on ecclesiastical law seem to have very little to say on the relationship between the Church’s law and its constitutional doctrine or ‘ecclesiology’.  

The second edition of Phillimore’s Ecclesiastical Law (1895) is nearly 2,000 pages long, but part one, which refers to the constitutional identity of the Church, is a mere 17 pages.  It indicates the tensions and contradictions that emerged in the 19th century.  A modern definition is offered of the Church as ‘a society instituted for the worship of God’ (p.1), but reference is also made to the earlier theocratic definition of the Church as the ‘ecclesiastical state and persons’ and ‘the spiritualty’ (p.2).

E Garth Moore’s Introduction to English Canon Law (3rd edition 1993, eds Timothy Briden and Brian Hanson) merely observed that ‘If modern England in practice approximates more nearly to the American concept [of religion], ancient England approximated more nearly to the Jewish one’ (p.12).

Professor Norman Doe acknowledged, correctly, that ‘much work still needs to be done on the theological and pastoral roots of ecclesiastical regulation’ (The Legal Framework of the Church of England 1996, Clarendon Press, Oxford, p.3).

Mark Hill declined to discuss the Church of England’s religious identity, holding that ‘The meaning, effect and future of establishment is a complex matter of history, ecclesiology, sociology and politics, which is beyond the scope of this book’ (Ecclesiastical Law, 2nd edition 2001, OUP, p.8)

‘Ecclesiology’ is a theological term, which was probably first used in England by the tractarians.  Any theological term is apt to discourage legal analysis of the subject referred to.  Hooker, of course, used the term ‘Ecclesiastical Polity’, which may be more congenial to legal discussion. 

The lawyers of the early modern period felt no embarrassment about discussing ecclesiology / ecclesiastical polity.  The religious doctrine of royal supremacy owes much to English common law.  Canon lawyers seem to have no difficulty with the Roman Catholic ‘ecclesiology’.

The subject described by the tractarians and by the modern Roman Catholic Church as ‘ecclesiology’, and described by Hooker as ‘ecclesiastical polity’, is one and the same.  It is the subject of what the Church is. 

It is argued that an advanced, systematic study of ecclesiastical law is not possible without discussion of this subject.  Any textbook on contract law begins with a discussion of what a contract is.  It discusses the elements of a contract, offer, acceptance, consideration, the intention to create legal relations.  Likewise a commentary on criminal law begins with the elements of a crime, actus reus and mens rea. 

Any worthwhile discussion of ecclesiastical law must therefore begin in the same way, with discussion of what ecclesia, the Church, is.  If theological terminology causes embarrassment, it need not be used.  Ecclesiastical lawyers should not be afraid to develop their own, legal terminology (such as that used in the title of this paper).  Without its defining subject, ecclesia, ecclesiastical law is little more than a quaint assortment of legal anachronisms and curiosities.

Ministry and Governance

The English ecclesiastical state, or Church, comprises two functions or powers:

(1)  the ministry of Word and Sacrament, which is unique to the Church and

(2)  a power of governance, which all states and organisations must have in order to exist.

The power of governance derives from the Monarch’s supreme authority over the Church.  Sir Matthew Hale confirms that

‘although … annexed to … ecclesiastical offices, yet … jurisdiction ecclesiastical in foro exteriori is derived from the Crown of England.  For there is no external jurisdiction, whether ecclesiastical or civil, within this realm, but what is derived from the Crown’ (History of the Common Law (1713), p.30).

Thus a new bishop acquires the power of governance when his appointment is confirmed, not when he is consecrated (ordained).  Confirmation is effected by the Vicar-General, in obedience to the royal mandate to the Archbishop. By the act of confirmation ‘the judge commits to the bishop elected the care, governance and administration of the spiritualties’, even if the bishop is not yet consecrated (Phillimore Ecclesiastical Law, 2nd edition 1895, pp.38, 40: s.4 Appointment of Bishops Act 1533).

However, authority to administer the divine Word and Sacraments comes from episcopal ordination.  Article 37 affirms that ‘we give not to our Princes the ministering of God’s Word or of the Sacraments’.  The Preface to the Ordinal affirms that ministry requires episcopal ordination.

Ordination is therefore the link between ministry and governance.  The Monarch may nominate bishops, and lay patrons may nominate parish priests, but ordination is still required for the nominated persons to be constituted bishops or priests in the first place.  An episcopal ‘ordination’ of some sort is also required for constitution as a lay minister, such as a lay reader (cf. Canon E5(5)).

What is Ordination?

Article 25 denies that orders are a sacrament, but suggests that they are one of the ‘states (status) of life allowed (probati) in the Scriptures’.  The 1662 ordination services are separate from the Book of Common Prayer (‘BCP’) and are collectively entitled ‘the Form and Manner of making, ordaining and consecrating of Bishops, Priests and Deacons’ (the Ordinal). 

The phrase ‘Form and Manner’ may be significant.  The full title of the BCP refers to the ‘rites and ceremonies of the Church’, but the Ordinal does not refer to ordination as a rite or ceremony. 

Despite the Ordinal’s title, ordination clearly does involve a religious rite and ceremony, the laying on of hands with invocation of the Holy Spirit.  Article 36 also refers to the ‘rites’ of the Ordinal.  However, the rite and ceremony of ordination must be distinguished from the authority for conferring ordination in the first place.

Article 34 affirms the right of each particular Church to ‘ordain, change and abolish, ceremonies or rites of the Church ordained only by man’s authority’.  This includes the ordination rite (laying on of hands) but does not explain the authority for conferring ordination.

This authority is explained by Article 23, not Article 34.  Article 23 provides that a minister of Word and Sacrament must be ‘lawfully called and sent … by men who have publick authority given unto them in the Congregation’.

Thus ordination is

(1) the calling and sending of a minister of Word and Sacrament (Article 23)

(2) which is effected in the Church of England by episcopal laying on of hands with invocation of the Holy Spirit (Article 34 and the Ordinal).

However, Article 23 and Article 34 make clear between them that ordination does not necessarily require either

(1) the laying on of hands (perhaps not even the invocation of the Holy Spirit) or

(2) the intervention of a bishop.

The essential requirement is that the calling and sending of any minister in the Christian Church must have proper authority (Article 23).  The method of effecting or completing this calling and sending, including the structure of ministry itself, is a matter for each particular Church to decide for itself (Article 34).  Different Churches may therefore have different structures of ministry.

This makes clear that the rite and ceremony of ordination by itself will not make an ordination.  The ordaining minister must have proper authority under Article 23.  A ‘rogue’ bishop might purport to ordain a priest, but this would not be a true ordination.  Even though the correct rite and ceremony be used, the ordination is a nullity, because the rogue bishop lacks the ‘publick authority’ to perform it.

This point is reinforced by the Preface to the Ordinal, which recites that candidates for holy orders must be ‘approved and admitted thereunto by lawful authority’.

The freedom of particular Churches to decide their own ministerial structure may not be unlimited.  In a commentary on the 39 Articles, E.J Bicknell points out that the word ‘called’ in Article 23 is rendered cooptati in the Latin text.  From this he concludes that Article 23 requires that those with the power to call and send new ministers must themselves be ministers of Word and Sacrament, as distinct from secular officials (3rd edition (1955), p.321).  The ministry must therefore be self-selecting and self-perpetuating.

Thus ordination is an act of governance, which is effected by a prescribed rite and ceremony.  However, it may only be performed by one who is himself ordained.

Bicknell’s conclusion on Article 23 is supported by Article 37 (quoted earlier).  If the ministry were not self-selecting and self-perpetuating, it is hard to see any justification for denying the power of ministry to the secular ruler.  The exclusive structure of the ministry preserves its integrity and its unique function.  It limits the power of governance.  If it lost its exclusive structure, the ministry would be absorbed and dissolved into the power of governance.

Acts of Ministry and Acts of Governance

An act of governance which does not involve the ministry does not require ordination, nor does it necessarily require episcopal authority at all.  However, our discussion of ordination shows that ecclesiastical acts cannot be clearly divided into acts of ministry and acts of governance.  Ordination is an act of governance which is effected or completed by an act of ministry.

The marriage service, unlike the ordination services, is included in the BCP.  Article 25 holds that marriage is not a sacrament any more than ordination.  Marriage is obviously not particular to the Christian Church, and early Christians would have been married according to Jewish or Roman ceremonies.  The solemnisation of civil marriage is, of course, an exercise of the power of secular governance.

Thus the solemnisation of marriage, like the licence or publication of banns which precedes it, is an act of governance, even though performed within the context of a ministry of the Word (and the Sacrament, if Holy Communion is administered during the marriage service).  It also includes the rite of exchanging a ring (which is of pagan origin).

Acts of governance are quite often performed in the context of an act of ministry, i.e prayers, Bible readings and the Eucharist.  It is necessary to distinguish between the two.  Lord Chief Justice Coleridge observed of the consecration of land that

‘a practice has grown up of accompanying the ceremony of consecration with certain suitable and seemly prayers: but that is not the consecration itself.  Consecration is effected by the decree of a competent ecclesiastical court …’ (Wood v Burial Board of Headingley (1892) 1 Queen’s Bench 713 at 725).

Dependence of Ministry on Governance

Although it has an exclusive structure, the ministry is not free-standing.  It cannot exist without some power of governance, any more than secular institutions.  By itself, the ministry has no more than a devolved power.  Ordination is an act of governance, so it cannot be effected without the power of governance, the ‘publick authority’ required by Article 23.

Priests, deacons and lay ministers are ‘called and sent’ by the bishop, but who calls and sends the bishop?  A bishop is ordained (consecrated) by the Archbishop, with the assistance of other bishops.  However, the Ordinal makes clear that the Archbishop’s act is performed in obedience to the mandate of the Crown, which he has no discretion to refuse.  The procedure for appointing bishops is laid down by the Act of 1533.

It is true that a new bishop is subject to an ‘examination’ during his ordination service, just as priests are, but this is ‘to the end that the congregation present may have a trial, and bear witness, how you be minded to behave yourself in the Church of God’ (1662 Ordinal).  In other words, the purpose of the examination is merely to demonstrate the wisdom of the Crown’s choice.

Moreover, the power of governance ultimately determines the entire function of the ministry.  The ministry is concerned with Word and Sacrament, but what is that Word?  What is the Sacrament?  Only the power of governance can answer these questions.

Thus the celebration of the Eucharist is an act of ministry that can only be performed by an ordained minister (a priest) (Canon B12).  However, the form of service used by the minister is an act of governance, not an act of ministry.  And the form of service determines what the Eucharist is, what the Church understands it to be.

In the modern Church of England, forms of service are regulated by the Worship and Doctrine Measure 1974 and the canons promulged under the authority of that Measure.  The BCP was formerly authorised by the Act of Uniformity 1662.  Previous versions of the BCP were authorised by previous Acts of Parliament.

The Necessity of Modern Ecclesiastical Governance

The power of governance changed radically in the late modern era.  In England, the Monarch retains supreme authority over the Church, but divine authority is no longer claimed for this.  The modern canon concerning the royal supremacy begins ‘We acknowledge’, not ‘We believe’ (canon A7).  Even this only applies in England.  Modern secular authority does not accept divine law, let alone a duty to enforce it.

Phillimore describes the development of the modern Anglican Communion in territories that were then mostly British colonies:

‘Diocesan and provincial synods became a matter of necessity to insure harmonious action, and these were constituted in the course of a few years by independent and almost simultaneous efforts in America, Australia, New Zealand and Africa’ (op.cit p.1776).

As the state became secularised and repudiated its responsibility for the administration of religion, this responsibility was assumed by individuals on a voluntary basis, as Phillimore says, as ‘a matter of necessity’.  Thus modern ‘synodical government’ emerged.

Under this new secular regime, the role of the state was limited to the enforcement of voluntarily agreed Church rules, on the basis of contract or trust law.  The Church was thereby reduced from a God-given public state to a merely private association of individuals.

This loss of status may seem unimportant, or even positively desirable.  It is said to give ‘freedom’ to the Church.  However, it carries the uncomfortable corollary that the Divine Word and Sacraments are also reduced to the status of a private matter, something agreed between the members of the association.

The Anglican experience is not unprecedented.   Congregationalist Churches, such as Methodists and Baptists, predated the modern Anglican system of synodical government, and, like synodical government, were a reaction against secularisation.

Articles 19 and 23 do refer to the Church as a ‘congregation’, but of course these references are made in the context of a strong emphasis on the ecclesiastical authority of the secular ruler.

Nor is there anything congregationalist about modern synodical government.  The synodical structure was formed under tractarian influence.  It was formed in order to protect the ordained ministry, and so to prevent the Anglican Church from becoming congregationalist. 

With this purpose, the synodical structure is sensitively organised, or moulded, around the structure of the ordained ministry, which in turn is derived from the late mediaeval Catholic Church.  Though created in the 19th century, synodical government is sometimes given a mediaeval veneer, so as to harmonise with the mediaeval ministry.  Thus rules become ‘canons’, committees and assemblies become ‘synods’.

Acts of governance require the consent of the ordained ministry, through its representatives.  Bishops and lesser clergy are generally represented separately, so acts of governance will require the consent of both groups of ministers.  Episcopal primacy within the ministry is scrupulously respected. 

So, far from being congregationalist, this tractarian-inspired system of governance is strongly clericalist.  Bishops and clergy may enjoy greater power of governance under the modern system than under the old theocracy that it replaced.  The ordained ministry is largely self-governing, though its power of governance is limited, by being made subject to the consent of lay representatives.   Synodical government may therefore be described as constitutional clericalism.

Individual participation in modern Anglican governance is based on association with the ministry.  The right of clergy to participate derives from their particular office within the Church, not directly from their ordination, even if the office is a mere permission to officiate on a temporary or occasional basis (as in the case of a retired priest). 

Likewise the right of the laity to participate in governance depends on their association with the ministry.  Association with the ministry derives from such acts as attendance at worship and reception of holy communion.  It does not derive directly from baptism.

Thus the right of clergy and laity to participate in the Church’s governance derives equally from their association with its ministry, albeit the test of association is different for clergy and laity.  However, this does not explain how and why a person’s association with ministry should confer on him or her the right to determine what that ministry is.

So we are left with Phillimore’s doctrine of necessity.  The ministry requires a power of governance of some sort in order to exist.  In a secular state, nobody can claim a better right to determine the function of the Church’s ministry than its own clergy and lay worshippers.  If they did not exercise the power of governance, nobody else could or would, and no form of ministry could continue.  

Separation of Powers

The classic doctrine of the separation of powers (legislative, executive and judicial) is rather secular in character.  It takes no account of the ecclesiastical state, i.e the administration of the Christian religion by the state. 

The doctrine is not incompatible with the ecclesiastical state, since the ecclesiastical state shares the constitutional powers of the secular state but exercises them for a different purpose.  Indeed the doctrine has been incorporated into Roman Catholic law to a limited extent (cf canon 391 of the Code of Canon Law 1983).  However, the doctrine can only apply to the ecclesiastical power of governance, not to the unique ecclesiastical ministry of Word and Sacrament.