ecclesiasticallaw

Ecclesiastical law

Category: Holy Orders

A Rogue Bishop

It is reported that a Church of England curate has been illegally ordained, or consecrated, as a ‘bishop’ by the Presiding Bishop of a breakaway Anglican Church based in South Africa.

Reacting to the distressing news, the Church authorities were not slow to refer to the Overseas and Other Clergy Measure 1967.  The Presiding Bishop could only perform episcopal functions in an English diocese ‘at the request and by the commission of … the [diocesan] bishop … and with the consent and licence … of the Archbishop’ (s.4(1)).  Yet he had acted without any such authority.

S.4(2) of the 1967 Measure stresses the authority of the diocesan bishop: ‘any person ordained priest or deacon by a [visiting] bishop acting on such request and by such commission as aforesaid shall be deemed to have been ordained by the [diocesan] bishop … and not by the [visiting] bishop’.  Of course, this provision refers only to the ordination of lesser clergy, not bishops.

The ordination of priests and deacons requires the authority of the diocesan bishop.  The consecration of a bishop requires the authority of the Monarch.

Thus the 1662 Ordinal provides that, before a new bishop is consecrated, ‘the Archbishop [shall] demand the Queen’s Mandate for the consecration, and cause it to be read [i.e read aloud]’ (rubric).  The consecration of a new bishop is performed by archbishops and bishops, but their authority to consecrate comes from the Monarch.  The choice of bishops is a jealously guarded royal prerogative.

Thus even if the local bishop and the Archbishop had given their full agreement to the consecration in accordance with the 1967 Measure, this would still have been ineffective without the Royal Mandate.

The 1967 Measure (which is only 50 years old, after all) may therefore not be the correct starting point for this case.  The Measure probably does not contemplate the illegal ordination of bishops, only of priests and deacons.  The true starting point is the Reformation statutes concerning the Monarch’s rights over the Church and its bishops: the Appointment of Bishops Act 1533, the Suffragan Bishops Act 1534.  And the Submission of the Clergy Act 1533, which provides that no ecclesiastical proceeding ‘shall be contrary or repugnant to the King’s prerogative royal …’ (s.3).

S.4(2) of the 1967 Measure provides that ‘If any overseas bishop performs any episcopal functions … otherwise than in accordance with this section [i.e without the authority of the local bishop and the Archbishop] he shall be guilty of an [ecclesiastical] offence’.

Yet if the offending bishop does not belong to the Church of England, disciplinary proceedings against him are unlikely to be effective in practice.  Moreover s.6(1) provides that an ‘overseas bishop’ means a bishop ‘in communion with the Church of England‘.  The breakaway South African Church is not in communion with the Church of England, apparently.  So the Presiding Bishop could not be subject to ecclesiastical discipline.

However, the English curate who was purportedly ‘consecrated’ by the Presiding Bishop certainly is subject to ecclesiastical discipline.  The Clergy Discipline Measure 2003 provides that ‘doing any act in contravention of the laws ecclesiastical’ constitutes misconduct for which disciplinary proceedings may be taken (s.8(1)).

The case of Bishop of St. Albans v Fillingham (1906) Probate 163 may be instructive here.  The Rev Mr Fillingham was an incumbent of Low Church persuasion.  He objected to the ritualism practised by another incumbent in the same diocese.  He was also disgruntled by the neglect or inability of the Bishop to take action against the ritualist.

He therefore decided to take direct action himself, by purporting to ‘ordain’ a non-conformist minister as priest, using the 1662 Ordinal with certain variations.  His idea was that the non-conformist would undertake an alternative mission in the ritualist’s parish.

Mr Fillingham was duly prosecuted and convicted of an ecclesiastical offence.  The Court of the Arches held that his purported ‘ordination’ constituted ‘an act of rebellion against the organisation and discipline of the Church of England’ (p.179).  His defence of necessity was rejected: ‘he cannot justify his acts … by shewing that they were intended to counteract the wrongful acts of someone else’ (p.176)

The Court found that Mr Fillingham’s offence was unprecedented (p.183).  His case may therefore be the only legally reported case of schism in the Church of England.

The judgment makes clear that a dispute over doctrine or moral values is not a schism.  Schism concerns the power of governance in the Church.  It requires a deliberate act of rejection by the schismatic of an authority to which he is subject.  Yet schism is more than mere disobedience.  It requires an express or implied claim of some other authority, in place of the authority that is rejected.

A century later, in Coekin v Bishop of Southwark (2006), unreported, the Rev Mr Coekin was involved in the ordination of two deacons by another breakaway Anglican bishop.  Mr Coekin did not directly participate in the act of ordination itself, but he associated himself with it and, in particular, he was responsible for ‘the making of necessary administrative arrangements’ in connection with the ordination (para 20).  The report on his case concluded that ‘by the part he played in arranging the [ordination] service [Mr Coekin] bore some degree of responsibility for the resultant breach of canon law’ (para 34).

The facts of these 3 cases are not identical.  Mr Fillingham purported to ordain a priest, Mr Coekin merely facilitated the purported ordination of deacons.  The curate in this case purported to be ordained a bishop.  However, all 3 cases involved active participation in an unlawful ordination.

Mr Fillingham and Mr Coekin were both dealt with leniently.  The Court of the Arches suggested in Fillingham that ‘offences of this nature differ from very grave moral offences in this, that they are not so irretrievable in their results on the reputation of the guilty person’ (p.186).  Mr Fillingham was suspended for two years, but was not deprived of his benefice after undertaking not to repeat his offence.  Likewise, Mr Coekin was allowed to keep his licence after giving suitable undertakings (para 39).

The offence in the present case is arguably graver than the first two, and not just because a bishop is more senior than a priest or a deacon.  It is, of course, part of a bishop’s function to perpetuate the ordained ministry by ordaining new clergy.  The 1662 Ordinal provides that a new bishop must promise to ‘be faithful in ordaining, sending or laying hands upon others‘.

The ordinations in which Mr Fillingham and Mr Coekin were involved were one-offs.  There was no proven intention to participate in future schismatic acts.  By contrast, receiving unlawful ordination as bishop arguably demonstrates an intention to administer unlawful ordinations in the future, and hence to establish a schismatic ordained ministry.  The late Archbishop Lefebvre was, of course, excommunicated for ordaining bishops without the permission of the Pope, as were the bishops he ordained (though the latter excommunications have since been lifted).

The validity of unlawful ordinations is discussed in the blogpost ‘Holy Orders: Validity and Legality’, which is filed below.

Preaching as a Profession: Against Ignorance and Sedition

The canons of 1603 provided that the Christian religion should be taught from:

(1) the Catechism contained in the Book of Common Prayer

(2) the authorised books of homilies and

(3) sermons preached by authorised preachers.

Clergy were required to ‘examine and instruct the youth and ignorant persons of [the] parish, in the Ten Commandments, the Articles of the Belief [i.e the Creed], and in the Lord’s Prayer: and shall diligently hear, instruct and teach them the Catechism set forth in the Book of Common Prayer’ (canon 59).  This duty was shared with licensed schoolmasters (canon 79).  Familiarity with the Catechism was an essential precondition of confirmation: ‘none shall be presented to the Bishop for [confirmation] but such as can render an account of their faith, according to the Catechism …’ (canon 61).

There are two authorised books of homilies, dating from 1547 and 1571 respectively.  The canons of 1603 anticipated that further homilies would be authorised in the future.  Thus canon 49 refers to ‘the Homilies already set forth, or hereafter to be published by lawful authority …’ (see also canon 46).  Every church was required to possess copies of the homilies, as well as the Bible and the Book of Common Prayer (canon 80).

As a general rule, the teaching function of the clergy was limited to (1) and (2) above.  They were required to teach the Catechism and to read the authorised Homilies to their parishioners, but not to preach their own sermons.  Not only were clergy in general not required to preach, they were positively forbidden to do so.

It is easy to forget this now.  However, as the Court noted in the case of Colefatt v Newcomb 92 English Reports 296, ‘By the old canon law preaching was not part of the minister’s office … but only reading mass and administering the sacraments: and nobody preached then without licence of the bishop, but he appointed preachers’.

This is confirmed by Lyndwood’s Provinciale (circa 1432), which provides that

‘no [ordained clergyman] which is not authorised by the law, or otherwise specially privileged, to preach the Word of God shall take upon himself the office or use of preaching the said Word of God … except he first present himself to the Diocesan [bishop] of that place where he intendeth to preach and … be then sent to preach by the Diocesan unto one certain parish, or unto many, as it shall seem expedient …’ (Book 5, Title 1, Chapter 1).

The reformers appreciated the importance of preaching, but there were difficulties, as Phillimore records:

‘The clergy in Queen Elizabeth [I]’s time being very ignorant … and moreover the state having a jealous eye upon them, as if they were not very affected to the Reformation none were permitted to preach without licence, but they were to study and read the homilies … and they that were instituted subscribed a promise to the same effect’ (Ecclesiastical Law, 2nd edition 1895, p.786).

The situation had evidently not improved when King James I succeeded to the throne.  Another commentator observed that ‘The canons of 1603 have many provisions on the subject of preaching, there being at that time a close association between the pulpit and sedition’ (The Book of Church Law, 10th edition 1905, p.120).

Preaching was indeed closely regulated by the 1603 canons.  Preachers were the clerical elite.  Cathedral dignitaries were ex officio preachers (cf canon 43).  However, other clergy required a special licence to preach from a bishop, the Archbishop, or from Oxford or Cambridge Universities (cf canon 51).  At the very least they required permission to preach from their diocesan bishop (canon 49).

Thus canon 49 provided that ‘No person whatsoever, not examined or approved by the Bishop of the diocese, or not licensed … for a sufficient and convenient preacher, shall take upon him to expound in his own cure, or elsewhere, any Scripture or matter of doctrine: but shall only study to read plainly and aptly (without glossing or adding) the [authorised] Homilies ….’.

Incumbents who were also licensed preachers were supposed to preach in their churches every Sunday. Unpreaching incumbents were required to ‘procure’ sermons at least once a month (canon 47). A non-resident incumbent was expected to supply a preaching curate ‘if the worth of the benefice will bear it’. If no preacher was available, an authorised homily would be read instead of the sermon. Cathedral dignitaries were required to preach in their own churches (canon 43).

Preaching was allowed in private or institutional chapels, and in private houses when ministering to those too ill or frail to attend church (canon 71). However, preaching ‘in market towns or other places’ was forbidden ‘without the licence and direction of the Bishop … first obtained and had under his hand and seal …’ (canon 72).

All preaching activity was carefully controlled.  Incumbents and churchwardens ‘shall [not] suffer any man to preach within their churches … but such as, by showing their licence to preach, shall appear unto them to be sufficiently authorised thereunto’ (canon 50).  Cathedral chapters were likewise obliged to forbid unlicensed preaching in their cathedrals (canon 51).  Visiting preachers were required to sign a special register recording the date of the sermon and the name of the preacher’s licensing bishop (canon 52).

Preachers shared a collective responsibility for the Church’s preaching ministry.  They were required to refrain from controversy inter se.  A preacher was not supposed to ‘impugn or confute any doctrine delivered by any other preacher in the same church, or in any church near adjoining’ without the bishop’s permission (canon 53).  Thus any doctrinal disputes were supposed to be referred to the bishop for resolution, not fought out from opposing pulpits.  As canon 53 wisely observed ‘upon such public dissenting and contradicting there may grow much offence and disquietness unto the people’.  The bishop could impose silence on a controversial preacher.  Preachers who refused to submit to professional discipline lost their licences (canon 54).

In Gates v Chambers (1824) 162 English Reports 259, the Court of the Arches observed that, by the early 18th century, this old regime of preaching had fallen into desuetude and that licences to preach ‘are now included either in letters of orders or in the licences of ministers to particular cures’ (p.264).  Writing in the late 19th century, Phillimore noted cheerfully that ‘the bishops do generally and justly forbear to put the [1603] Canons as to [preaching] in execution: and every priest is permitted to preach, at least in his own cure …’ (ibid, p.786).

The Worship and Doctrine Measure 1974 provides, somewhat vaguely, that the Prayer Book Catechism, being a ‘form of service’ contained in the Book of Common Prayer shall ‘continue to be available for use in the Church of England’ (s.1(2)).  The revised Canons are vague too.  The Prayer Book Catechism is no longer specifically referred to.  Reference is made only to ‘the Church Catechism‘ (canons B26(1) and B27(2)), but this is not identified further.  It is not made clear whether any other Catechism has been authorised, or when, or where such Catechism is to be found.

The Oxford Dictionary of the Christian Church (3rd edition 1998) relates that a revised Catechism ‘was in 1962 commended by the Convocations for use during a period of 7 years, which has been repeatedly extended’.  To have proper authority, any revised Catechism will now require the approval of the General Synod, by a two-thirds majority in all 3 Houses (canon B2).

No further books of homilies have been authorised since 1571.

The modern legal regulation of preaching is rather more perfunctory than that of 1603.  Canon B18(1) provides that at least one sermon shall be preached on Sunday, ‘except for some reasonable cause approved by the bishop’.  The purpose of a sermon is said to be ‘to minister the word of truth, to the glory of God and to the edification of the people’ (B18(3)).  The modern liturgical book Common Worship suggests excitingly that ‘the sermon [can] include … the use of drama, interviews, discussion, audio-visuals’.

Licensed lay ministers may now preach (see canons E4 and E7).  Canon B18(2) also provides that ‘another person’ besides an ordained or lay minister, may preach at the invitation of the incumbent, though the permission of the bishop is required, either specifically or in accordance with diocesan directions.

The revised canons confirm that Oxford and Cambridge Universities can still grant licences to preach, notwithstanding that both were separated from the Church of England and secularised in the 19th century. Canon C8(2)(c) even provides that a minister who has such a licence ‘may preach the Word of God in any diocese … throughout England … without any further authority from the bishop thereof’. However, this privilege is hard to reconcile with s.15 of the Act of Uniformity 1662, which provides that a person is not permitted to preach in any place of public worship without the approval and licence of the appropriate bishop or Archbishop.

Although lay ministers may now preach, the administration of the 7 traditional sacraments is still reserved to ordained ministers.  Lay ministers may only assist the ordained to administer the sacraments (though any layperson may administer baptism in an emergency.)

In the Roman Catholic Church, by contrast, only clergy may preach at the Eucharist (Code of Canon Law 1983, canon 767).  This is not because clergy are necessarily better preachers than laypeople, but because of ‘the closely connected functions of teaching and sanctifying’ (cf Instruction on the Collaboration of Non-Ordained Faithful in the Sacred Ministry (1997)).  Only ordained ministers are capable of combining those two functions, which are both celebrated at the Eucharist.  (It should be remembered that ‘clergy’ in the Roman Catholic Church include married permanent deacons, as well as priests and bishops, and the function of permanent deacons may be hard to distinguish in practice from that of licensed lay readers.) Laypeople may preach on other occasions outside the Eucharist if this is ‘necessary or … advantageous’, subject to local law (canon 766).

Ignorance and sedition may not be the serious problems that they once were, but it is possible that a more exact and detailed regulation of catechesis and preaching might improve the quality and efficacy of the Church of England’s teaching ministry.

The Case of Archbishop Abbot

W Adam, ‘The Curious Incident of the Homicidal Archbishop: The Dispensation Granted to Archbishop George Abbot, 1621’ (September 2015) 17 Ecclesiastical Law Journal, p.306.

This article, just published, is an important contribution to the study of ecclesiastical law, in particular its relationship with canon law.  As the learned author points out, the case of Archbishop Abbot, though well known to history, is virtually unknown to ecclesiastical law.  This scholarly legal account of the case is therefore especially welcome.

In 1621, when Archbishop of Canterbury, Abbot accidentally killed a gamekeeper while out hunting.  This caused a flutter in ecclesiastical circles for a specific legal reason.  Mediaeval canon law provided that, if an ordained minister unlawfully killed someone, he was ipso facto (i.e automatically and immediately) inhibited from officiating as such.  Any official function performed by the minister while inhibited was therefore prima facie illegal or ‘irregular’.  This rule survives in modern Roman Catholic law (see canons 1041.4 and 1044.1.3 of the Code of Canon Law 1983).

One of the principal functions of an Archbishop is, of course, the consecration (ordination) of new bishops.  Four bishops-elect (including William Laud, Abbot’s successor as Archbishop of Canterbury) objected to being consecrated by Abbot, fearing that their consecrations would be irregular, and therefore ineffective to constitute them as Church of England bishops, on account of the mediaeval canon.

Abbot argued, with some justification, that the canon did not apply to his case.  The inquest into the gamekeeper’s death had exonerated him.  It found that the accident was caused by the gamekeeper’s own misadventure.  However, Adam’s account indicates that Abbot, like the four bishops-elect, accepted that the mediaeval canon still had the force of law, notwithstanding the break with Rome nearly a century earlier.

If (God forbid) a modern Archbishop were to be involved in such a terrible accident, any disciplinary consequences would be regulated by the Clergy Discipline Measure 2003.  However, there was no statutory regime concerning the discipline of bishops and Archbishops in the 17th century.  The canons of 1603 are also silent on the subject.

The effect of the mediaeval canon was that an ordained minister who was guilty of homicide was automatically inhibited unless and until his ecclesiastical superior granted a dispensation, thus restoring him to the exercise of his orders.  The Pope was the Archbishop of Canterbury’s superior before the Reformation.  Thus a mediaeval Archbishop in Abbot’s predicament would have applied to the Pope for a dispensation.

The papal jurisdiction was, of course, abolished at the Reformation.  The Ecclesiastical Licences Act 1533 provided that the Pope’s power to grant dispensations should in future be exercised by … the Archbishop of Canterbury! (s.3).  The Archbishop could hardly grant a dispensation to himself.  King James I settled the matter by appointing a commission of bishops and directing them to grant ‘a precautionary and excessive dispensation’ to Archbishop Abbot ‘concerning all irregularity and taint of irregularity, if perchance you have incurred any’.  Adam’s erudite article includes an English translation of the full Latin text of the dispensation.

As Adam points out, this dispensation could not plausibly have been authorised by the 1533 Act.  That Act regulated dispensations granted by the Archbishop, not to him.  The Act does empower the Monarch to commission other bishops to grant dispensations, but only if the Archbishop wrongfully refuses to grant them (s.11).

But if, contrary to the view of the protagonists in Abbot’s case, the mediaeval canon no longer had the force of law then no dispensation was necessary.  Adam refers to the Reformation legislation, which provided that mediaeval canons might continue in force, provided that they ‘be not contrary nor repugnant to the laws, statutes and customs of this realm, nor to the damage or hurt of the King’s prerogative royal’ (Submission of the Clergy Act 1533, s.7).

The purpose of the mediaeval canon, ridding the Church of homicidal clergy, is obviously just and reasonable.  Of course a priest or bishop (or Archbishop) who culpably causes a person’s death should be inhibited from officiating – but how?  The rule of ipso facto irregularity was extremely hurtful to the royal prerogative when applied to the Archbishop of Canterbury.  English law jealously guarded the Monarch’s right to appoint bishops.  The Archbishop of Canterbury is, of course, the senior bishop, the Primate of All England.  Not only that, the Monarch requires the Archbishop to consecrate his episcopal appointees.  The Archbishop is therefore the source of holy orders throughout the province.

If the rule of ipso facto irregularity applied to Archbishops and bishops, this would not deny the Monarch’s right to appoint them, but it could still cause grave difficulties.  The Monarch might appoint an Archbishop or bishop, but the mediaeval canon could render the appointee incapable of officiating as such.  The Archbishop might be incapable of consecrating the Monarch’s chosen bishops.  The lawfulness of consecrations performed by the Archbishop might be put in doubt.  This in turn might impugn the ordinations of priests by the bishops who had been consecrated by the Archbishop.  The regularity of the entire ordained ministry might be undermined.

It is hard to accept that a rule of mediaeval canon law would be allowed to survive the Reformation, when it had such potentially devastating consequences for the reformed Church.  If the rule remained in force, one would at least expect the law to confer a clear power on the Monarch (not just on bishops) to dispense from any irregularity in the exercise of the Archbishop’s function.  There is no such power.

The silence of the canons of 1603 on the discipline of Archbishops also suggests that this was regarded as a matter for the Monarch’s jurisdiction.

Adam does not reach any definite conclusion on the legal force of the mediaeval canon.  However, it is argued here that the canon did not survive the Reformation.  The dispensation was granted to humour a few tender episcopal consciences.  E Garth Moore relates that King James I ‘thought the whole matter ridiculous’ (Introduction to English Canon Law, 3rd edition 1993, p.135).  Even if Abbot had been held responsible for the gamekeeper’s death, his ability to officiate as Archbishop of Canterbury, and to consecrate new bishops lawfully, would have continued unless and until King James inhibited him from doing so.

Objecting to an Ordination

‘if there be any of you who knoweth any impediment, or notable crime, in any of these persons presented to be [ordained], for the which he ought not to be admitted to that office, let him come forth in the name of God, and shew what the crime or impediment is’ (1662 Ordinal).

This invitation is made by the bishop to the congregation, with slight differences of wording, during the ordination services of both priests and deacons, though not of bishops.

Many years ago the author of this blog was present at an ordination service where an objection was made to one of the candidates.  She was apparently the first woman to be ordained in the Anglican Church in Wales.  This was, of course, the reason for the objection.

The Bishop made the ritual invitation quoted above.  Four clergymen in the congregation stood up in their places, but said nothing.  Then two ladies came forward.  The Bishop said to them, somewhat coldly, ‘Please address yourselves to the Chancellor, who is my legal adviser’.  The Chancellor, in wig and gown, was standing nearby.  The ladies read out a prepared statement of objection, in unison.  The Chancellor then read out his own prepared statement rebutting the objection, citing a recent amendment of the Constitution of the Church in Wales to permit the ordination of women.

The two ladies and the four clergymen, together with about 20 supporters, then walked out of the Cathedral, where representatives of the news media were busily recording the dramatic event.  Someone in the congregation shouted a reproach after them (‘May God forgive you, you know not what you do!’).  The service then proceeded as normal, and the woman candidate was ordained.

The ordination service could continue as normal because the objection to the candidate did not amount to an ‘impediment’, for the reason identified by the Chancellor.  The ordination of women was lawful.  However, the 1662 Ordinal goes on to provide that ‘if any great Crime or Impediment be objected, the Bishop shall surcease from Ordering that person, until such time as the party accused shall be found clear of that Crime’.

As well as the provision of the Ordinal for objection to be made during the service, the ordination of priests and deacons was formerly subject to a procedure known as the si quis, which may have resembled the publication of banns of marriage.  Phillimore’s Ecclesiastical Law relates a requirement that

‘proclamation [of a proposed ordination] be thrice made in the parish church where the person who offers himself to be ordained inhabits, in order to know the impediments if any be: which the minister of such parish is to certify to the bishop or his official’ (2nd edition, 1895, p.99).

Thus the older ecclesiastical law provided for no fewer than four public invitations to object to an ordination candidate.  However, the scope for objection is limited to an ‘impediment or notable crime’.  It does not extend to any allegation or complaint that a candidate is unsuitable.

The limited scope for objection was demonstrated in the case of Kensit v Dean and Chapter of St. Paul’s (1905) 2 King’s Bench 249.  It is interesting to compare the facts of this case with the Church in Wales case described earlier.  Mr Kensit was a well-known and dogged opponent of ritualism (the last great ecclesiastical controversy before women priests).    He suspected that the ordination candidates engaged in ritualistic practices.  He came forward in response to the Bishop’s invitation, and stated that he ‘felt it incumbent on him to make very serious objections’ to some of the candidates (p.250). 

However, before Mr Kensit could get around to making his objections, the Bishop cut him short by reading out a legal opinion from the Dean of the Arches to the effect that involvement in ritualistic practices, even if they were illegal, did not constitute an ‘impediment or notable crime’ within the meaning of the Ordinal.

The Bishop then warned Mr Kensit that, unless his objections satisfied the wording of the Ordinal, as interpreted by the Dean of the Arches, he should desist from reading them out and would be prosecuted if he persisted.  Mr Kensit did persist in reading out his objections.  Like the Church in Wales objectors, he then walked out of the Cathedral.  Unlike them, however, he was later convicted under the Ecclesiastical Courts Jurisdiction Act 1860 of ‘unlawfully disturbing divine service’ when the Dean and Chapter complained.  His appeal against conviction was dismissed.

What was Mr Kensit’s unlawful disturbance?  He had not come forward unbidden, but in response to the Bishop’s invitation which was itself required by the Ordinal.  His objection was not frivolous or vexatious: the ordination candidates probably were involved in ritualistic practices that were then illegal. The offence against the 1860 Act is an offence against public order and freedom of worship.  Yet Mr Kensit was convicted, not because of what he did or intended to do, but only because he had misunderstood the Ordinal provision: the candidates’ conduct, even if illegal, did not amount to an ‘impediment or notable crime’.  Mr Kensit was found guilty of a criminal offence by a secular court because he had made an error of ecclesiastical law. 

If Mr Kensit had not misunderstood the rubric, and his objections had amounted to impediments or notable crimes, he could have continued to ‘disturb’ the service and yet not been guilty of an offence.  Instead, as the magistrates who convicted him pointed out, the Bishop would have been guilty of an ecclesiastical offence by continuing with the ordination in the face of Mr Kensit’s objection. 

It is argued that Mr Kensit should not have been convicted on this basis.  He was not ‘disturbing’ the service merely by making his objection, because the objection procedure was an integral part of the service.  It was not the business of a secular criminal court to decide whether or not the objection was valid in ecclesiastical law.  That was for the Bishop to decide.  The true question for the secular court was whether Mr Kensit’s conduct exceeded the licence that he needed in order to make his objection, so as to constitute an unlawful disturbance.

The si quis procedure was abolished in the Church of England under power conferred by the Miscellaneous Provisions Measure 1976, s.1.  It also seems to have been discontinued in the Church in Wales.  The 1662 Ordinal has not exactly been abolished, but it is no longer used for ordinations.  As Chancellor Bursell noted in St. Thomas, Pennywell (1995) Family 50, modern ordination services omit provision for objecting to a candidate.  Instead they merely invite the congregation to ‘assent’ to the ordinations.  This means that objections of the kind described above would constitute an unlawful disturbance if made during a modern ordination service.

The abolition of the objection procedure may be regarded as an attempt by the Church authorities to suppress dissent to their choice of ordination candidates.  However, it was not the purpose of the older ecclesiastical law to provide a democratic opportunity for public dissent and protest.  On the contrary, the objection procedure was intended to assist the bishop, by enabling him to be informed of impediments and crimes of which he might otherwise be unaware. 

It is arguable that a formal procedure for objecting to an ordination is now unnecessary.  Ordination candidates will be subject to criminal record checks, if only to establish that they are suitable to work with children (though such checks are still not expressly required by ecclesiastical law).  Modern communications should make it possible for any serious allegation against a candidate to be notified to the bishop in advance of ordination, without the need for a dramatic intervention during the ceremony itself.

Holy Orders: Validity and Legality

Sacrament and Non-Sacrament

The distinction between the validity and the legality of holy orders was explained by Pope Leo XIII in Apostolicae Curae (1896):

‘If … a person has seriously and correctly used the due matter and form [of a sacrament], he is … presumed to have intended to do what the Church does … a sacrament is truly a sacrament, even if it is conferred through the ministry of a heretic, or of one who is not himself baptised, provided the catholic rite is used’ (para 33).

As is well known, the Pope concluded, in Apostolicae Curae, that the Church of England’s orders did not satisfy this test.  The essential reason was that the ‘form’ or rite of ordination contained in the 1662 Ordinal and its predecessors is not adequately worded to confer Catholic priesthood.  In the original Ordinal of 1549, the words of ordination were only ‘Receive the Holy Ghost’, without any reference to priesthood.  The clarifying words ‘Receive the Holy Ghost for the office and work of a priest‘ were not added until 1662, which was too late to repair the original defect.  Moreover the Ordinal does not clearly express, indeed it positively denies, the Catholic understanding of priesthood, in particular of the priest as  ‘sacrificer’, the minister of the Eucharistic sacrifice.

These defects necessarily mean that nobody who uses the Church of England rite can intend to ordain a Catholic priest.  He therefore cannot be ‘presumed to have intended to do what the Church does’.  If he had intended to ordain a Catholic priest he would have used a different rite.

However, Pope Leo did not hold that Anglican orders are invalid because the Church of England left the Catholic Church at the Reformation.  On the contrary, orders may be validly conferred outside the Catholic Church.

This conclusion was reaffirmed in the case of Archbishop Marcel Lefebvre, who was excommunicated in 1988 for ordaining bishops in breach of canon law.  Lefebvre’s ordinations were said to be valid but unlawful.

It must always be remembered that the distinction between the validity and legality of holy orders depends on the Roman Catholic doctrine that orders are a sacrament.  The Code of Canon Law 1983 makes clear that orders are one of ‘the [seven] sacraments of the New Testament, instituted by Christ the Lord’ (canon 840, reiterated in canon 1008).

English ecclesiastical law, by contrast, is clear that orders are not a sacrament as the 1983 Code understands this.  Article 25 states that baptism and ‘the supper of the Lord’ are the only two sacraments ‘ordained of Christ our Lord in the Gospel’.  The other five Catholic sacraments, including orders, ‘are not to be counted for sacraments of the Gospel … for that they have not any visible sign or ceremony ordained of God’. 

This means that the ‘valid but unlawful’ distinction of Roman Catholic law cannot be applied to English ecclesiastical law.  If a particular rite is not sacrament instituted by God, then it cannot be both valid and unlawful.  It can only be lawful or unlawful.  Its validity depends upon its lawfulness, because, lacking divine authority, it can have no other basis but human authority.  To be valid, a rite that is not a sacrament must possess an authority conferred or recognised by human law.

Article 23 strongly emphasises the importance of legality in ministry: ‘It is not lawful for any man to take upon him [ministerial] office … before he be lawfully called, and sent to execute the same … by men who have publick authority given unto them in the Congregation’.  There is no reference to any particular rite of ordination as the condition of a valid ministry.

Article 26 states that those with ‘authority in the ministration of the Word and Sacraments … do not the same in their own name but in Christ’s, and do minister by His commission and authority …’.

This suggests that human authority within the Church is an extension of Christ’s authority.  Ministers lawfully ordained by the Church are ordained by Christ.  The divine authority to exercise the ministry of Word and Sacrament is mediated through human authority.  However, the precise form of the ordination is not relevant, so long as it is conferred lawfully.

The form or rite of ordination is regulated by Article 34, which confirms that

‘Every particular or national Church hath authority to ordain, change and abolish, ceremonies or rites of the Church ordained only by man’s authority’.

Thus the 1662 ordination rite, and modern alternatives thereto, are indeed ‘rites of the Church ordained only by man’s authority’.

However, the Roman Catholic distinction between validity and legality has sometimes echoed within the Church of England in the modern controversy over female ordination.  ‘Traditionalists’ may suggest that, while Lefebvre’s ordinations were valid but unlawful, Anglican ordinations by or of women are lawful but invalid!  This is yet another example of the confusion which results from treating English ecclesiastical law as if it were part of canon law.

Legality and Illegality

In a recent article for the Ecclesiastical Law Journal, the Reverend Dr William Adam discusses the legal consequences arising from the appointment of a woman as diocesan bishop in the Church of Ireland (vol 16(2), May 2014, p.187).  Women may not, as yet, be ordained as bishops in the Church of England, and parishes enjoy a statutory right to veto the appointment of a female incumbent.  However, there is no English law to prevent male priests ordained by the Irish woman bishop from officiating anywhere in the Church of England.  The parish veto applies only to women priests, not to male priests ordained by a woman bishop.  Moreover, clergy from the Church of Ireland who wish to officiate in England are not subject to the Overseas and Other Clergy Measure 1967, and so do not require special permission from the two Archbishops.  (The 1967 Measure applies only to Anglican Churches outside the British Isles, not to the Anglican Churches in Wales, Ireland and Scotland.)    

Citing an opinion of the Legal Advisory Commission published in 2004, Adam points out that the 1967 Measure refers to recognition of the orders of Churches rather than orders conferred by individual bishops.  Canon C1, which was promulgated about the same time as the 1967 Measure, confirms that to be a ‘priest’ in English law, one must have been ordained in the Church of England, ‘or ha[ve] had formerly episcopal consecration or ordination in some Church whose orders are recognised and accepted by the Church of England’.

These modern authorities are entirely consistent with the requirements of the 39 Articles that any valid ministry must have lawful authority.  All the authorities point to the conclusion that there could never be an Anglican equivalent of the late Archbishop Lefebvre.  If a ‘rogue’ bishop purported to ordain priests without any authority other than his own episcopal orders, such ordinations would be invalid.  This is because they would contravene the fundamental principle of Article 23, that those who administer and receive ordination both require ‘publick authority given unto them in the Congregation’.   They could not be valid just because the rogue bishop used an authorised ordination rite, or that he intended to do what the Church does.  

It must be admitted, however, that there is little case law on irregular ordinations, and this is inconclusive.  In Bishop of Natal v Gladstone (1866) Law Reports Equity 1, the Bishop sued the trustees of the Colonial Bishoprics Fund (of whom Gladstone was one) for payment of his stipend, which they had withheld.

The Bishop had been consecrated by the Archbishop of Canterbury and sent to Natal, South Africa, under the authority of letters patent of the Crown.  The problem was that the letters patent were issued without the authority either of the Westminster Parliament or of the South African colonial legislature.

The Fund had been set up to pay the stipends of colonial bishops.  However, the trustees argued that, because the letters patent did not have statutory authority, either in Britain or South Africa, the Bishop’s appointment was a nullity.  He was not really the Bishop of Natal and so any payment to him out of the Fund would be in breach of the trust.

The Court held that the Bishop was a bishop of the Church of England, because he had been consecrated by the Archbishop on the mandate of the Crown.  The Crown did not require statutory authority to order the consecration of a new bishop.  It had power to do so under the Royal Prerogative.

This case tends to support the view that the validity of an ordination in English law is dependent on its lawfulness.  As the court said, if the Archbishop had consecrated the Bishop without the royal mandate, the consecration would have been unlawful, and the Bishop would certainly not have been a bishop of the Church of England.  However, the court specifically declined to speculate as to ‘what his peculiar status in the Catholic Church of Christ might be’ (p.47).

In Bishop of St. Albans v Fillingham (1906) Probate 163, the ecclesiastical court disciplined the Rev Mr Fillingham after he purported to ordain a non-conformist minister as priest, using the 1662 Ordinal with certain variations.  The court held that such action was ‘an usurpation … of powers which belong to the Christian society itself and … an act of rebellion against the organisation and discipline of the Church of England’ (p.179).  This dictum echoes Article 23.  However, Mr Fillingham was not a bishop, only a priest.  The charge against him was ‘purporting to ordain a priest without himself being a bishop’ (p.176).

The case of Macmanaway (1951) Appeal Cases 161 concerned a priest of the Church of Ireland who got himself elected to Parliament.  However, the law then in force provided that any person ‘having been ordained to the office of priest or deacon’ was ipso facto disqualified from election to Parliament.

The Privy Council confirmed that the Rev Mr Macmanaway was indeed disqualified.  It was not relevant that he belonged to a disestablished Church rather than to the Church of England: ‘any ordination that can properly be described as episcopal is a valid admission of a person to the order of priest or deacon … whether within or without the Church of England’ (p.173).

This dictum may support the view that an episcopal ordination may be valid even if unlawful, just so long as it is recognisably episcopal.  However, it must be remembered that Mr Macmanaway’s priestly orders were not questioned in the case.  It was not suggested that he had not been ordained, or that his ordination had contravened either English law or the constitution of the Church of Ireland.  The only issue was whether the legal prohibition on priests and deacons being elected to Parliament applied only to Church of England ordinations, or to ordinations in other episcopal Churches.

Apart from Apostolicae Curae and the Lefebvre case, there seems to be little Roman Catholic jurisprudence concerning the validity or legality of ordinations.  The Catholic Church has an annulment procedure for ordination (canons 1708-12), just as it has for marriage but, unlike the marriage annulment procedure, it is rarely used (The Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.1019).

Relinquishment and Relief: The Clerical Disabilities Act 1870

The Legal Office of the Church of England has issued a paper offering some reflections on the establishment of the Personal Ordinariate of Our Lady of Walsingham by Pope Benedict XVI (GS Misc 979, January 2011).

The paper suggests that ‘It is desirable that clergy leaving the Church of England [to join the Ordinariate] should relinquish their orders under the Clerical Disabilities Act 1870’

This suggestion is apparently made for the benefit of the Ordinariate clergy themselves:

‘Unless they take advantage of the procedure under the 1870 Act, they will, as a matter of English law, continue to be subject to the same jurisdiction as any other clerk in holy orders of the Church of England and therefore subject to the discipline of the Church of England (including the duty of [canonical] obedience) … as well as that of the Roman Catholic Church’ (emphasis supplied).

The reference to the Act of 1870 may not be quite accurate.  Clergy do not exactly relinquish their orders under that Act.  They relinquish ‘all rights, privileges, advantages and exemptions of the office [of priest or deacon]’ in the Church of England, as by law belong to that office (s.3(1), schedule 2).

The 1662 Ordinal provides that deacons and priests are ordained ‘in the Church of God’, but the 1870 Act refers only to the Church of England, and to the law of England.   Thus the clergyman only relinquishes the legal effects of his orders, not his orders per se.

The stated purpose of the 1870 Act is the ‘relief’ of clergy (subtitle).  The effect of relinquishment, as the Legal Office says, is that a clergyman is ‘discharged and freed from all disabilities, restraints and prohibitions … [attaching] to the office of minister in the Church of England and from all [ecclesiastical] jurisdiction’ (s.4).

Thus, on the positive side, the 1870 Act enabled an ex-clergyman to hold offices or engage in activities which were then forbidden to the clergy (schedule 1).  For example, the 1870 Act enabled an ex-clergyman to sit in the House of Commons.  On the negative side, it also conferred protection from clergy discipline.

The ‘relief’ promised by the 1870 Act was directed at Canon 76 of 1603, which was then in force.  Canon 76 provided that no deacon or priest should ‘voluntarily relinquish [his orders] nor … use himself … as a layman, upon pain of excommunication’. 

However, Canon 76 was replaced in the 1960s by Canon C1(2) of the revised Canons.  Canon C1(2) is permissive in character.  It provides that ‘a minister may … by legal process [i.e under the 1870 Act] voluntarily relinquish the exercise of his orders’.  This wording suggests that such a course is for the individual clergyman to decide.  There is no threat of excommunication.  Canon C1(2) also states explicitly what is implicit in the wording of the 1870 Act, that an ordained minister ‘can [n]ever be divested of the character of his order’. 

Ordinariate clergy, of course, do not wish to be ‘divested’ of their orders or to ‘use themselves as laymen’.  On the contrary, they wish to continue their priestly ministry, but in the Roman Catholic Church rather than in the Church of England.

Thus Ordinariate clergy would only need the protection of the 1870 Act if the Church of England authorities decided to discipline them.  

The question is, therefore, whether it is a disciplinary offence for a clergyman to become a Roman Catholic and work as a Roman Catholic priest.

In the case of Barnes v Shore (1846) 163 English Reports 1074, the Reverend Mr Shore was disciplined by the ecclesiastical court for officiating in a dissenting chapel, contrary to his bishop’s instructions. 

The Court of the Arches held that ‘a clergyman can[not] divest himself at pleasure of his orders’ (p.1077),  having been ordained and promised canonical obedience (of his own free will).

However, there are two distinctions between the Reverend Mr Shore and the clergy of the Ordinariate:

(1) Mr Shore was officiating in a dissenting Protestant Church that did not have an episcopally ordained ministry, hence the Court’s reference to his ‘divesting’ himself of his orders.  By acting as if he was a dissenting minister, he was acting as if he was not an ordained priest.

The Roman Catholic Church, of course, does have an episcopally ordained ministry.  An Anglican priest who joins the Ordinariate will not therefore be ‘divesting himself’ of his orders.  As Lord Brougham noted, ‘Our Church recognises the Roman Catholic … ordination … on account of the Apostolic Succession’ (R v Millis (1844) 8 English Reports 841 at p.916).

(2) The report of the case records that Mr Shore had officiated against the express instruction of his bishop.  He was therefore guilty of disobedience.  However, there is no suggestion in the Legal Office’s paper (or from any other source) that Church of England bishops have forbidden their clergy to join the Ordinariate, even though fully aware of their intention to do so. 

It is therefore hard to argue that Ordinariate clergy could be disciplined for disobedience under s.8(1) of the Clergy Discipline Measure 2003.

S.8(1) of the 2003 Measure provides that clergy may be disciplined for ‘neglect or inefficiency in the performance of the duties of … office’.  However, if an Ordinariate priest has resigned all his ecclesiastical offices before joining the Ordinariate he could not be disciplined on this ground, since he would have no official duties to neglect.

S.29 of the 2003 Measure provides that it is misconduct if a clergyman ‘performs in the Church of England any function’ that he has been forbidden to perform as a result of previous disciplinary proceedings.  On its wording, this restriction could not apply to functions performed in the Roman Catholic Church.  Moreover, it would not apply to an Ordinariate priest who has not previously been subject to disciplinary proceedings.

Thus it seems very unlikely that an Ordinariate priest could be at risk of proceedings under the 2003 Measure.  Even if a complaint were made it would still have to have ‘sufficient substance’ to justify further action (s.11(1)).  The bishop also has a power to order no further action on a complaint (s.12(1)).

There are, of course, considerable differences of religious belief and practice between the Roman Catholic Church and the Church of England.  Perhaps an Ordinariate priest might be liable to proceedings under the Ecclesiastical Jurisdiction Measure 1963 for ‘an offence against the laws ecclesiastical involving matters of doctrine, ritual or ceremonial’ (s.14(1)). 

However, the risk of proceedings under the 1963 Measure is also very remote.  No such proceedings have ever been brought since the 1963 Measure was passed.  Even if proceedings were commenced, the 1963 Measure provides that proceedings may be dismissed if there are unspecified ‘extenuating circumstances’, or if further proceedings ‘would not be in the interests of the Church of England’ (s.42(7)).

It should be fairly obvious that disciplinary proceedings against Ordinariate clergy simply for joining the Ordinariate would not be in the Church of England’s interests. 

No sentence or penalty could be effective against an Ordinariate priest who has already resigned and has no intention of seeking office in the Church of England in the future.  It is arguable that any disciplinary proceedings would conflict with the ecumenical duty imposed by Canon A8, which obliges all Church members and authorities ‘to do their utmost not only to avoid occasions of [sectarian] strife, but also to seek in penitence and brotherly charity to heal such divisions’.

Last, but not least, any disciplinary action would raise ‘human rights’ issues.  An Ordinariate priest might well argue that he would not receive a fair trial in any ecclesiastical court or tribunal, since all the judges are required to be communicant Anglicans.  It is also arguable that disciplinary action against a priest who has already left the Church of England is an unjustified infringement of his right to manifest his religion.

Attorney-General -v- Glasgow College: Apostolic Succession and English Law

(1846) 63 English Reports 908

A will trust made in the 1670s provided scholarships to graduates of Glasgow College to study at Oxford, on condition that they ‘enter into holy orders’ in Scotland.  The testator was a Scotsman who had studied at Glasgow in 1643.  However, he later settled in England, and the trust was of English property.

The Church of Scotland had a presbyterian structure in the 1640s, the time when the testator was a student.  By the 1670s, when he died, it had changed to an episcopal structure, in the sense that it possessed an ordained ministry of bishops, priests and deacons.  After the testator’s death, the Church of Scotland reverted to a presbyterian structure, a result of the ‘Glorious Revolution’ of 1688, which it has retained ever since.  However, an unofficial episcopal ministry continued in Scotland after 1688.

In the 1840s there was a dispute over the administration of the trust.  The episcopalians argued that they, not the presbyterian Church of Scotland, were the true beneficiaries of the Oxford scholarships.  The presbyterians answered that their Church was one and the same as the Church of Scotland of the 1670s, notwithstanding the change of structure in 1688.

The English court, required to settle this dispute between Scotsmen, examined the terms of the trust, in particular the words ‘holy orders’.  It held that this expression could only mean ‘orders by episcopal ordination’ (p.923).

On this basis, the court went on to conclude that the episcopal Church ‘as it now is … is identical with the protestant episcopal Church of Scotland as it was in 1677-9’ (p.926).  The proof of this identity was ‘continu[ity] by an unbroken succession of bishops, from the [1670s] down to the present time’.

However, this succession of bishops had had no legal basis after 1688.  Indeed it had for many years been positively unlawful.  The court overcame this difficulty with the historically questionable assertion that the post-1688 episcopal Church ‘does not appear to have had toleration legally refused to it in Scotland at any period’ (p.923).  It also pointed out that Acts of Parliament passed in the 18th and 19th centuries had lifted the restrictions on episcopalianism and had expressly recognised the Scottish bishops.  This meant that the Scottish bishops ‘can[not] be correctly suggested to have had no legal right to that title in Scotland’ (p.923).

Thus the ratio of the court’s conclusion was the episcopal Church had survived 1688

(1) by an unbroken succession of bishops (a fact)

(2) this unbroken succession had not been unlawful and

(3) it was positively recognised by Act of Parliament.

This case was decided during the tractarian era, when the doctrine of Apostolic succession had become newly fashionable in the Church of England (and in Scotland).  Tractarian influence may explain why the court was evidently impressed by the fact of an unbroken succession of bishops.  Had the case arisen before the tractarian era, the court might have been much less impressed by this fact, and placed more emphasis on the bishop as an official of the state, whose appointment and function is regulated by the law of the land.  The Scottish bishops could hardly have satisfied this pre-tractarian concept of episcopacy.

In spite of this favourable conclusion, the episcopal Church did not obtain the benefit of the Oxford scholarships.  The court ordered an inquiry, to see if anything could be done in this regard.  However, the House of Lords set aside the order: Glasgow College v Attorney-General (1848) 9 English Reports 978.

The House of Lords agreed with the original court’s interpretation of ‘holy orders’.  It also seemed to accept the court’s conclusions (1), (2) and (3) above (at least, it did not expressly deny them).  However, it noted that, as a result of court orders made in the 18th century, the trust property ‘had been declared to be administered, not according to the terms of the testator’s will (that having become impossible), but according to a scheme omitting that part of the direction which required the scholars to enter into holy orders’ (p.989). 

Thus a court-approved scheme had been substituted for the original trust in the 18th century, because the change of Scottish ecclesiastical government after 1688 from an episcopal to a presbyterian system had made it impossible to comply with the condition about entering holy orders.

The Lords rejected the episcopalians’ plea that times had changed since the Glorious Revolution and the 18th century: ‘Is not the presbyterian form of Church government still the established Church government of Scotland? … nothing has taken place since those [18th century] decisions were pronounced which would justify a court … in departing from them …’ (p.990).

The Lords also repeated the questionable assertion that the post-1688 episcopal Church had never been denied legal toleration: ‘it is possible and legal to apply any income for the better provision of the protestant episcopal Church of Scotland’ (p.988) … There was no prohibition of persons following the episcopalian form of church government in Scotland’ (p.990).  If that was indeed the case, it is difficult to see why the 18th century courts should have concluded that the testator’s condition about holy orders had become ‘impossible’.