Ecclesiastical law

Category: The Anglican Communion

Continuing Anglicanism: Conscience and Communion

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

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

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

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

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

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

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

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

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

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

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

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

The Society requires the appointment by the Church of

(1) a male bishop

(2) who only ordains male priests and

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

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

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

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

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

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

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

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

Principles of Canon Law Common to the Churches of the Anglican Communion

Anglican Communion Office publication of 2008

This publication would be more accurately entitled ‘Principles of Governance Common to the Churches etc’.  It is confusing to describe the constitutions and rules of Anglican Churches as ‘canon law’.  Such a description conflicts with the received understanding of canon law as the law of the Catholic Church, which never formed part of English law. 

No doubt there are rules and principles in the constitutions of all modern Churches (and in most modern systems of governance) that are derived from mediaeval canon law, but that does not make them canon law per se.  The description also ignores the fact that, with the exception of the Church of England, the ‘laws’ of Anglican Churches are mostly voluntary rules made by the Church members, not the law of the land.

The principles described are drawn from characteristics shared by the constitutions of some or all Anglican Churches.These common characteristics have been identified by the researches of Professor Norman Doe and other members of the Anglican Communion Legal Advisers’ Network (ACLAN).  Exactly 100 principles are identified, and arranged into eight sections which tend to follow the structure of Doe’s own books on the Church of England and the Anglican Communion.

The principles include unobjectionable assertions that Church authorities should act lawfully and constitutionally (cf 6(1) and 17).  Principle 5 makes the sound points that a Church rule or ‘law’ binds all Church members, laypeople as well as clergy, and that a profession of faith or declaration of submission to ecclesiastical authority binds the person who makes it.

This rightly disposes of the anachronistic concern about whether English ecclesiastical law binds the laity.  When the Convocations were composed only of clergy, it is easy to see why the courts ruled that their legislation should bind only the clergy.  Today, however, ecclesiastical rules are made by assemblies that include lay representatives as well as clergy, so there is no reason of constitutional principle why lay people should not be bound by such rules.

Principle 81 does not escape the confusion first sown by Chancellor Newsom in the case of St. John’s Chelsea (1962) 2 All England Reports 850, concerning the consecration of land.  It correctly states that ‘Places of public worship and for Christian burial may be set aside for the purposes of God by consecration’.  However, it goes on to assert that ‘consecrated … Church property may not be used for purposes inconsistent with the uses of God for which it is set aside’.

The word ‘property’ is ambiguous in this context.  It may mean only that consecrated churches and burial grounds may not be used for secular purposes.  It may, however, mean that no consecrated land may be used for secular purposes, even if that land is not a church or a burial ground.

Principle 7(6) suggests that constitutional rules may be dispensed with in cases of ‘legitimate necessity’, but only if the constitution itself gives authority to dispense.  Any dispensation should, of course, have proper authority, but it is not clear what is meant by ‘necessity’.  The well-known maxim holds that ‘against necessity there is no law’, so presumably no dispensation from law is required.  Necessity is a defence to a complaint of illegality, rather than a ground of dispensation.  Perhaps Principle 7(6) means that any exception to a general rule requires proper justification.

The Preface warns that the principles identified do not necessarily apply to all the Anglican Churches.  Certainly they have little to say about the ‘establishment’ of the Church of England.  There is no principle addressing the right of the secular authority to approve ecclesiastical legislation and appoint bishops, or the Head of State’s claim to be ex officio also the Head of the local Church.

The 39 Articles are still an authoritative statement of doctrine in English ecclesiastical law, but the principles say only that Anglican Churches ‘uphold and propagate the historic faith and order as typified in the Book of Common Prayer 1662 and its derivatives’ (10(2)).  The 1662 Book is ‘the normative standard for liturgy’ (55(1)).  Neither principle refers to the Articles.  They suggest that faith and order are defined only by the liturgies (including ordination rites) of each Church.  It is for each particular Church to judge whether its liturgy follows the ‘type’ or ‘norm’ of the 1662 Book.

There is one rather mysterious reference to the 39 Articles and the other ‘historic formularies’ of the Church of England in Principle 49, which provides that they ‘represent the historic sources of lawful doctrine for a Church’ (.5).  This presumably means that a Church may receive the doctrine taught by the Articles, but need not do so.  There is also a paraphrase of canon A5 (.4).

As always in Anglican commentaries, the greatest difficulty and confusion concerns the nature of the episcopate and of the Anglican Communion itself.  Principle 15 asserts that episcopal leadership and episcopal ‘collegiality’ are both ‘fundamental to ecclesiastical polity’.  However, the principles also accept that episcopal ministry is subject to the law (9(3) and 18(6)).  Yet if episcopal leadership and collegiality are ‘fundamental’ this rather implies that the law should be subject to them, rather than vice versa.

The Anglican Churches are ‘characterised by their historic relationship of communion with the See of Canterbury’ (10(1)), but that phrase contains another confusion.  There is undoubtedly a historical relationship between the modern Anglican Churches, but communion is a theological relationship.  It is never made clear by what alchemy the historical relationship is transformed into a theological relationship.

Inter se the Churches are ‘governed morally by the conventions of the Anglican Communion’, but these alleged conventions are not identified, nor is the concept of ‘moral governance’ explained.

The Windsor Report 2004: ‘Autonomy’ in the Anglican Communion

The report characterises the political-constitutional status of the Anglican Churches as one of ‘autonomy’ (para 75).  It states that autonomy is not the same thing as sovereign independence.  The word ‘autonomous’ literally means ‘having one’s own laws’, but only under a subordinate, restricted legislative power.

In other words, the self-governance enjoyed by Anglican Churches is a limited power conferred on them by a higher authority – the Anglican Communion as a whole.  On this view, ‘autonomy’ is closely linked to subsidiarity.

Of course, Anglican Churches are not sovereign authorities.  However, the autonomy that they enjoy does not come from the Anglican Communion.  It comes from the jurisdictions where they exist.

Thus the autonomy of the Church in Wales, its ability to govern itself, comes from English law, principally the Welsh Church Act 1914.  The Archbishop of Canterbury constituted the Church in Wales as a ‘province’ after that Act was passed but, if he had power to do this, it must have come from English common law.  Likewise, the power of the English Archbishops to consecrate bishops for the American Episcopal Church and other overseas Churches was conferred by Acts of the United Kingdom Parliament.

The autonomy of Churches generally also derives from the ‘human rights’ to associate and practice religion that belong to all individuals and religions, Anglican and non-Anglican alike.

In short, there is no such thing as Anglican autonomy.  In modern secular democracies, Anglicans merely enjoy the same autonomy that other ‘faith groups’ enjoy.

The Diocese in Europe Measure 1980

The 1980 Measure did not create the diocese in Europe.  The recital to the Measure refers to the Bishop of London’s ‘ecclesiastical jurisdiction’ over Church of England clergy (not laity) officiating in northern and central Europe, and the Bishop of Gibraltar’s similar jurisdiction over other areas of Europe.

The Bishop of London surrendered his jurisdiction to the Archbishop of Canterbury, who in the exercise of his metropolitical jurisdiction formed the diocese in Europe from the areas formerly under the jurisdiction of the Bishops of London and Gibraltar.

The diocese of Gibraltar was created by letters patent of 1842, issued under the royal prerogative (Phillimore Ecclesiastical Law 2nd ed 1895, pp.1766-8).  The letters patent provided that the diocese and its Bishop were subject to the metropolitical jurisdiction of the Archbishop of Canterbury. 

The Bishop of London’s overseas jurisdiction dates from an order in council of King Charles I, also made under the royal prerogative.  The Bishop of London is subject to the metropolitical jurisdiction of the Archbishop of Canterbury by common law.

This narrative suggests that the surrender of the Bishop of London’s European  jurisdiction and the exercise of the Archbishop’s metropolitical jurisdiction in creating the new diocese both required royal assent, even if this was only implied rather than given expressly,  since both jurisdictions were conferred under the royal prerogative.

The 1980 Measure is very short and limited in scope.  It provides only for

(1)   representation of clergy and laity from the diocese in the General Synod and Convocation of Canterbury (ss.1-3)

(2)   the provision of an official residence, stipend and expenses for the Bishop and any suffragan

(3)   application of the Church of England pension scheme to the diocese and

(4)   clergy from the diocese to be treated as Church of England clergy, not as overseas clergy, for the purposes of the Overseas and Other Clergy Measure 1967.

Thus the Measure makes no provision for the administration of worship and doctrine in the diocese (neither does the Worship and Doctrine Measure 1974), nor for the appointment of the Bishop or any other clergy, nor for pastoral reorganisation within the diocese.  Absent legislation, such matters can be regulated only within the limits of the common law and prerogative powers.

Overseas and Other Clergy

During the 18th and 19th centuries, seven Acts of Parliament were passed concerning the ordained ministry outside the jurisdiction of the Church of England.  The Acts concerned the following territories:

1.  The USA

2.  Jerusalem

3.  Scotland

4.  The colonies (‘His Majesty’s foreign possessions’)

The USA became an independent Republic as a result of the War of Independence.  Jerusalem was part of the Ottoman (Turkish) Empire until the early 20th century.  Scotland was united with England in 1707, but the Church of Scotland had been presbyterian since the Glorious Revolution of 1688 and was not subject to English ecclesiastical jurisdiction.  However, an unofficial (and, for many years, illegal) Episcopal Church continued to exist in Scotland after 1688.

Ecclesiastical jurisdiction over the colonies before the 19th century was evidently uncertain and rather ineffective.  Phillimore relates that ‘All British subjects in foreign parts were declared by an order in council at the time of Charles I to be under the jurisdiction of the Bishop of London as their diocesan’ (Ecclesiastical Law 2nd edition 1895, p.1770).  However, no colonial bishops were appointed.

The seven Acts of Parliament, and the territories to which they related, were as follows:

1.  The Ordination of Aliens Act 1784 (24 Geo 3, c.35)         USA

2.  Act of 1786 (26 Geo 3, c.84)                                                       USA

3.  The Ordination for Colonies Act 1819 (59 Geo 3, c.60)   Colonies

4.  Act of 1840 (3 & 4 Vict, c.33)                                                     Scotland / USA

5.  The Bishops in Foreign Countries Act 1841 (5 Vict, c.6) Jerusalem

6.  The Colonial Bishops Act 1853                                                   Colonies

7.  The Colonial Clergy Act 1874                                                     Colonies

The Acts regulated:

(1)  the supply of clergy to other Churches and

(2)  the reception of clergy from other Churches.

The colonial legislation was missionary in character, concerned with the advancement of religion and the cure of souls throughout the British Empire (1819 Act, preamble).  The legislation concerning the USA and Jerusalem seems to have been diplomatically rather than religiously motivated, to assist persons in those jurisdictions who were desirous of worshipping according to an Anglican form (1784 Act, preamble, 1841 Act, s.2).

The Acts of 1784, 1786 and 1841 provided for the supply of ordained ministers to persons outside the jurisdiction (the USA and Jerusalem).  The 1784 and 1786 Acts permitted the ordination of ‘aliens’, not British subjects, by English Archbishops and bishops, without requiring the oaths of allegiance, supremacy and obedience.  The 1841 Act was passed to ‘enlarge the powers’ conferred by the 1786 Act (recital).  It allowed the consecration as bishop of British subjects as well as foreigners.

The effect of these Acts, which caused controversy at the time they were passed, was to separate ministry from jurisdiction.  Once the candidates had been ordained and sent back to America or Jerusalem, they could no longer be subject to the Church of England authorities.

However, the three Acts were clear that persons ordained under their authority were not allowed to officiate in the Church of England.  They could only officiate outside the jurisdiction.  This created the position that English law enabled ministers to be ordained for ministry outside the jurisdiction, while denying their ability to exercise ministry within the jurisdiction.  Thus the separation of ministry from jurisdiction was permanent and irreversible.

The Act of 1840 relaxed this prohibition, very slightly.  Clergy of the American Church were permitted to exercise their ministry in the Church of England, but only on a very limited basis and subject to strict control.  A similar relaxation was granted to Scottish episcopal clergy.

The 1840 Act was the first statutory recognition of the ordained ministries of Churches outside English ecclesiastical jurisdiction.  It recognised clergy who were ‘canonically ordained by any Bishop’  of the Scottish or American Churches.  Such clergy were deemed to satisfy the conditions of ordination laid down in the 1662 Ordinal.  They were not required to be ordained in the Church of England.

Any Scottish or American clergyman wishing to officiate in England or Ireland had to produce a reference from his own bishop certifying that he ‘professeth the Doctrines of the United Church of England and Ireland’.  This suggests that Parliament acknowledged the Scottish and American bishops’ judgement of Church of England doctrine, though any references still had to be accepted by the English authorities.

Thus the effect of the 1840 Act was that the jurisdictions of the Scottish and American Churches were formally recognised by English ecclesiastical law, as well as their ministries.

The Scottish Episcopal Church and the American Church are not constituted or ‘established’ by the laws of Scotland and the USA, as the Church of England is constituted by English law.  The recognition of these two Churches, notwithstanding their lack of a legal ‘establishment’, may have been encouraged by the then-fashionable Tractarian doctrine of Apostolic Succession, which held that all bishops possess an inherent authority as successors of the Apostles.

The colonies, like Scotland, were subject to the jurisdiction of the Crown, but not to that of the Church of England.  Thus the regime applied to colonial clergy was similar to that applied to Scottish and American clergy.

Under the 1819 Act, only the two Archbishops and the Bishop of London had the right to ordain colonial clergy (including bishops), though they could authorise other bishops to perform ordinations.  Clergy ordained for the colonies could not officiate in England without special permission, and references were required from the relevant colonial bishop.  If there was no bishop, the reference was taken from the colonial governor, or the secretary of state for the colonies.

The 1819 Act also forbade a colonial clergyman to officiate anywhere if he had been ordained by a bishop ‘who at the time of such ordination did not actually possess an episcopal jurisdiction over some diocese, district or place or was not actually residing within such diocese, district or place’ (.s4).  Any appointment of such a clergyman to an ecclesiastical office was null and void (s.5).

This provision supports the view that in English law, unlike Roman Catholic law, an ordination must be lawful in order to be valid.  A mere ceremony of ordination (laying on of hands etc) performed by a bishop is not enough.  The bishop must have performed the ordination under some authority recognised by English law.

The 1853 Act empowered all English (and Irish) bishops to delegate ordinations and other episcopal functions to the Bishops of Calcutta, Madras and Bombay, though the consent of the Archbishop was also required.  At that time Indian bishops were appointed and officiated under the authority of royal letters patent.  However, the Act made clear that the Indian bishops could not exercise jurisdiction within the United Kingdom (s.5).

By the time the 1874 Act was passed the first Lambeth Conference had met (1867), the Church of Ireland had  been disestablished (1869-70), and some colonial Churches (e.g the South African Church) had become self-governing, like the Scottish and American Churches.  The modern Anglican Communion had emerged.

The 1874 Act made it easier for clergy ordained by overseas bishops to officiate in England.  It relaxed the regimes imposed by the 1819 Act and the 1840 Act.  Clergy ordained under the 1853 Act were treated as if they had been ordained by English bishops (s.8) and were therefore not subject to any special restrictions.  Moreover, it was no longer necessary that the ordaining bishop should have been authorised to officiate by royal letters patent, or to have officiated within the jurisdiction of the Crown.

Thus the 1874 Act effectively enabled the Church of England to recognise any Church with an episcopal ministry.  The essential test was ‘that such bishop be a bishop in communion with the Church of England’.

This was the first use of the word communion in any of the seven Acts.  It was not defined.  The more exact requirement imposed by the 1840 Act, profession of the doctrines of the Church of England, was not revived.

The 1874 Act provided a further separation of ministry from jurisdiction by permitting the Archbishops to consecrate bishops for ministry outside the Church of England (s.12).  The Act also echoed the 1819 Act in rendering null and void any appointment that did not comply with its provisions (s.6).

The Church of England and the American Episcopal Church

The consecration of Bishop Seabury was performed by Scottish bishops, not by the Archbishop of Canterbury, and was not authorised by any English, or British, law (Phillimore Ecclesiastical Law 2nd ed 1895, p.1771).  However, the Archbishop of Canterbury did ordain two other American bishops under the authority of an Act of Parliament of 1786 (26 Geo 3, c.84, now repealed).

The 1786 Act enabled either Archbishop to consecrate as bishop ‘citizens of countries out of His Majesty’s Dominions’, without requiring the Monarch’s licence for their election or the royal mandate for their consecration, and without requiring the candidates to take the oaths of allegiance and obedience.

However, this power was subject to conditions.  The Monarch’s licence was required for the consecration of the particular candidate.  The Archbishop was required to be ‘fully ascertained of [the candidates’] sufficiency in good learning, of the soundness of their faith, and of the purity of their manners’.  The consecration was to be performed according to the manner prescribed by ecclesiastical law, that is, not by the Archbishop alone, but with the assistance of two other bishops.

Thus the provisions of the 1786 Act do not support the supposed primacy or ‘presidency’ of the Archbishop of Canterbury over the Anglican Communion.  The Archbishop did not, and could not, consecrate the American bishops on his own authority, but only on the authority of the British Parliament and with the licence of the Monarch (who was then King George III).  He did not consecrate the bishops by himself, but with the assistance of other Church of England bishops. 

Moreover, the power to consecrate was shared with the Archbishop of York.  If the Archbishop of Canterbury had suddenly died or been taken gravely ill and so been unable to act, or had merely been unwilling to act, the Archbishop of York could have performed the American consecrations just as lawfully.

It is true that the Archbishop of Canterbury was the principal agent of the American consecrations, but in performing them he was acting as an official of the Church of England and in accordance with English law, as laid down by the (secular) authority of Parliament.  He was not exercising any power or charism supposedly inherent in his office.

It is arguable that the 1786 Act, by permitting the consecration of American bishops in the Church of England, gave implicit legal recognition to the earlier consecration of Seabury.  The historical evidence apparently suggests that the Act was passed after the American ambassador had assured the Archbishop that the consecrations would not be regarded as an interference in domestic American politics (Chapman, Anglicanism, OUP 2006, p.99).  It is therefore arguable that the consecrations enjoy recognition in international law, as well as in domestic English law.  However, the basis of any legal recognition is the secular authority of the British Parliament and of the American government.