Ecclesiastical law

Category: The Roman Catholic Church

Clerical Celibacy

The author of this blog recently witnessed two ordinations at a Catholic cathedral, administered by the diocesan bishop.  Both candidates were ordained deacon.  They were ordained as transitory, rather than permanent, deacons, i.e in the hope that they will shortly be ordained to the priesthood.

One of the new deacons was a diocesan seminarist.  The other was a married Anglican vicar (or former vicar) who had joined the Anglican Ordinariate which is formally entitled the Personal Ordinariate of Our Lady of Walsingham.

According to the order of service, the seminarist was required to take a vow of celibacy before the bishop ordained him.  This was in accordance with the Code of Canon Law 1983, which requires a candidate for ordination to undertake the obligation of celibacy publicly, unless he has already taken a monastic vow or is a married man destined for the permanent diaconate (canon 1037).  This is apparently a recent requirement of canon law, and reflects the Church’s concern over defections from the priesthood in the years following the second Vatican Council (cf. The Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel, 1985, Paulist Press, New York, p.728).

Thus the obligation of celibacy precedes ordination.  The obligation does not result from, nor is it effected by, ordination.  Celibacy is a precondition, not a consequence, of ordination. 

This means that, if a deacon or priest wishes to leave the clerical state, he will remain bound by his vow of celibacy even if a decree of laicisation is granted.  A laicised cleric who wishes to marry must obtain a separate dispensation from the Pope, to release him from this vow (cf canon 291).

Canon 277 provides that the bishop may make detailed rules concerning the observance of celibacy by his clergy.  Clergy are required ‘to behave with due prudence’ towards any person who might endanger their celibate state or set tongues wagging.  Celibacy, like justice, must not only be done but be seen to be done.

The married former vicar was not, of course, in a position to take the vow of celibacy required by the 1983 Code.  Marriage constitutes a ‘simple impediment’ to ordination (canon 1042).  However, all impediments to ordination may be dispensed from (canon 1047).  A papal dispensation was therefore obtained.  The dispensation was not expressly referred to in the ordination service (perhaps it was thought indelicate to refer to it, the vicar’s wife and children being present).  However, the order of service made clear that the ordination was ‘with the permission of the Holy See’.

The Anglican Ordinariate is primarily regulated by the papal constitution Anglicanorum Coetibus (2009) and by certain ‘complementary norms’ made thereunder.  Even in the Ordinariate the general rule is that only celibate men will be ordained.  However, papal dispensations permitting the ordination of married men are envisaged ‘on a case by case basis’ (Anglicanorum Coetibus, Article 6(2)).

The request for a dispensation is made by the Ordinary (i.e the Head of the Ordinariate), not by the candidate himself.  The request itself must be based on ‘objective criteria and the needs of the Ordinariate’ (norms, 6(1)).  The ‘objective criteria’ which govern any request for a dispensation must themselves be approved by the Holy See.

Even when the dispensation has been granted, the diocesan bishop is not obliged to ordain the candidate. In this case there was no papal mandate to the bishop to ordain the former vicar, merely a permission to do so.

Dispensation from celibacy is only ever granted for ordination as a deacon or priest, not as a bishop.  All bishops are required to be celibate.  A commentary appended to the complementary norms explains that ‘Given the entire Catholic Latin tradition, and the tradition of the Oriental Catholic Churches, including Orthodox tradition, the admission of married men to the episcopate is absolutely excluded’ (Father Gianfranco Ghirlanda SJ, para 4).

The present Head, or Ordinary, of the Anglican Ordinariate is himself a married man, and so can only be a priest, not a bishop.  Thus he cannot ordain his own priests, but has to request local diocesan bishops to do so instead.  However, out of respect to his former status as a bishop of the Church of England, the Ordinary is permitted to wear the bishop’s mitre and pectoral cross (cf. norms, 11(4)).  

In the Latin Church, a married man may be ordained to the permanent diaconate, without a special dispensation being necessary, but not until he is at least 35 years old, a much higher minimum age than for celibate clergy (canon 1031.2).  His wife’s consent to the ordination must be obtained in writing (canon 1050).  An unmarried permanent deacon must remain celibate (canon 1037).

Clerical celibacy has never been universal in the Church, and canon law recognises this.  The Code of Canons of the Eastern Catholic Churches, promulgated in 1990, acknowledges that married men may be ordained priest (1990 Code, canon 758.3).  However, clerical marriage in the Eastern Churches is by no means as widespread and general as it is in the Anglican Communion.  It is subject to the laws of the particular Church, and to any special rules issued by the Holy See.  As the commentary cited above makes clear, marriage is only for lesser clergy, not bishops. 

The diversity of practice between the Latin and Eastern Churches is explained thus: ‘Clerical celibacy … [is] supported by the tradition of the whole Church’, while ‘the hallowed practice of married clerics [obtained] in the primitive Church and in the tradition of the Eastern Churches’ (1990 Code, canon 373).  Thus clerical marriage has a place in the Church’s tradition, but only a limited place.  Clerical celibacy, by contrast, is a universal tradition.  The practice of clerical celibacy existed in the primitive Church and has always existed in the Eastern Church, alongside the practice of clerical marriage.

It is well known that compulsory clerical celibacy was abolished in the Church of England at the Reformation.  (Hence the need for papal dispensations for married former vicars.)  However, the language of the Clergy Marriage Act 1548 permitting clerical marriage is surprisingly grudging.  There is no positive affirmation of the value of married clergy, just a weary recognition that celibacy had become unenforceable.  Article 32, promulgated later in the 16th century, is a little more positive, providing that ‘it is lawful for [clergy] as for all other Christian men, to marry at their own discretion, as they shall judge [marriage] to serve better to godliness’.

Only as recently as 1964 was any restriction placed on the ‘discretion’ confirmed by Article 32.  In that year, evidently worried by the rising divorce rate and the laxity of the secular divorce law, the Church of England approved the Clergy (Ordination and Miscellaneous Provisions) Measure.  S.9 of the 1964 Measure, entitled ‘Certain Impediments to Order’, provided that ‘no person shall be admitted into Holy Orders’ if divorced and remarried, or married to a divorced person, if a former spouse was still alive.

This rule was mitigated by the Clergy (Ordination) Measure 1990, which enables a bishop to obtain a faculty (i.e a dispensation) from the Archbishop to permit the ordination of a divorced and remarried person, or the spouse of such a person.  (See canon C4(3) and (3A) of the Canons of the Church of England.)  By contrast, Anglicanorum Coetibus makes no such concessions, providing firmly that ‘Anglican clergy who are in irregular marriage situations may not be accepted for Holy Orders in the Ordinariate’ (norms, 6(3)). 

The Marriage (Same Sex Couples) Act 2013 effectively forbids the solemnisation of homosexual ‘marriages’ in church (at least for the time being).  However, there is no impediment in that Act, or elsewhere in English law, to forbid the ordination of a person who is in a same sex marriage, or to forbid clergy from entering same sex marriages.

The Roman Catholic Church and International Law

(All papal documents, and the Code of Canon Law 1983, can be read on the, the official website of the Holy See.)

Pope Leo XIII explained the status of the Catholic Church and the Holy See in international law in his encyclical Immortale Dei (1885)

The Catholic Church is a perfect society under the sovereign authority of the Holy See.  A perfect society is defined as ‘perfect in its nature and in its title to possess … all needful provision for its maintenance and action’ (para 10).

A perfect society must be distinguished from a mere private association whose status as a society depends on ‘the concession and favour of the [secular] government’ (para 27).

The Catholic Church’s need to be constituted as a perfect society, and not as a mere private association, is explained by the response of the Apostles to the Jewish authorities which persecuted them for preaching the Gospel: ‘we must obey God rather than men’ (Acts 5, 29, quoted at para 12).

Papal sovereignty over the Catholic Church comes from divine law, from ‘The office uniquely committed by the Lord to Peter’ (Code of Canon Law 1983, canon 331).  The Holy See and the Catholic Church both enjoy juridical personality by divine law (canon 113.1).

However, although papal sovereignty comes from divine law it is also recognised in secular international law:  ‘in the making of treaties … sending and receiving ambassadors … [secular states] have been wont to treat with the Church as with a supreme and legitimate power’ (para 12).

The loss of the Papal States 15 years earlier did not affect the Holy See’s sovereignty over the Church.  The Papal States, like the Vatican City State today, were a separate ‘civil sovereignty’, the purpose of which was to safeguard papal sovereignty over the Church (para 12).

Thus even if the Pope were to lose his sovereignty of the Vatican, his sovereignty over the Church would continue, just as it continued after the loss of the Papal States.  Moreover, secular states recognised the Pope’s sovereignty over the Church by maintaining diplomatic relations with the Holy See after 1870, notwithstanding the loss of its territorial sovereignty.

The Vatican City State was constituted by the Lateran Treaty 1929, so the Pope again has two sovereignties, just as he had before 1870.  Diplomatic representatives are accredited to the Holy See, not to the Vatican.

The Pope exercises his sovereignty with the assistance of three agencies:

(1) the Roman Curia (canon 360)

(2) papal legates (nuncios)

(3) the College of Cardinals.

The Curia acts in the Pope’s name and on his authority.  Hence references in the 1983 Code to the Holy See / Apostolic See include the Curia (canon 361).  The present structure of the Curia dates from the late mediaeval and tridentine eras (Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, pp.293-4).

Within the Curia, the Secretariat of State is responsible for diplomatic relations with secular states and international agencies: see Pope John Paul II, Pastor Bonus (Apostolic Constitution of 1988), Articles 39-47.

Papal legates are not part of the Curia but they assist the Pope in his dealings both with secular states and local Churches.  Thus the office of papal legate or nuncio resembles an unusual combination of ambassador and colonial governor (canons 362-7).  It is at the same time both diplomatic and pastoral.  (See also Pope Paul VI, Sollicitudo Omnium Ecclesiarum, an Apostolic Letter of 1969, on the duties on papal representatives.)

Like the Roman Curia, the system of legates and permanent nunciatures dates from the tridentine era, and originally had the function of implementing the decrees of the Council of Trent.  Recognition of papal diplomats in international law dates from the Congress of Vienna, and was affirmed by the Vienna Convention of 1961  (Text and Commentary, p.301).

Legates continue in office during a vacancy in the Holy See (canon 367).

The old rule was that the Holy See only appointed a nuncio to a Catholic state, where the nuncio was ex officio the head or dean of the diplomatic corps in that country.  Papal representatives to non-Catholic states were merely pro-nuncios.  This rule was abolished in 1994, so now all papal representatives to  states are nuncios (Eileen Denza, Diplomatic Law (3rd edition 2008, OUP, Oxford, p.111).

However, the Holy See remains proud of its special sovereignty.  It does not accept an ambassador who is also accredited to the Republic of Italy (Denza, Diplomatic Law p.30).  Thus states may not economise by employing the same ambassador to represent them on both sides of the Tiber.

If a papal representative is appointed only to a local Church and not to the local secular state, he is called an Apostolic Delegate, not a nuncio.

The College of Cardinals, of course, exercises sovereignty during a vacancy in the Holy See (canon 359).  The Pope may appoint an individual cardinal as special legate (legatus a latere, meaning sent from beside the Pope).  The 1983 Code suggests that special cardinal-legates are appointed only for pastoral rather than diplomatic matters (cf canon 358).

The 1983 Code makes clear that the Pope is judged by no one, and that any judicial proceedings against him are a nullity (canons 1404, 1406).  Although the 1983 Code applies only to the internal law of the Church, these provisions indicate that the Pope claims the same immunity as heads of state enjoy in international law (Text and Commentary, p.951).

However, the officials of secular states do not enjoy the same immunity from the Holy See’s jurisdiction, if they are Catholics.  As Catholics, they are subject to papal sovereignty.

The 1983 Code alludes to this point when it provides that the Pope personally exercises jurisdiction in cases concerning heads of state (canon 1405).  This, of course, indicates that Catholic heads of state do not enjoy immunity from the Pope’s jurisdiction.

The special status of the Holy See and the Catholic Church in international law is important to any comparative study of ecclesiastical governance.  As a commentator noted ‘non-Catholic Churches … do not claim an international juristic personality’ (H.E Cardinale, The Holy See and the International Order (1976, Macmillan, p.91).  The Catholic status is unique.

The Church of England is clearly not an autonomous ‘perfect society’.  It is merely one part of a perfect society, being the ecclesiastical branch of the English state.  It might therefore be more appropriate to compare Roman Catholic law with English law as a whole, not just with that part of English law that regulates the Church of England.

The Church of Scotland claims a God-given  independence from the secular state, but this is limited to ‘ matters spiritual’ (Article 4 of the Declaratory Articles scheduled to the Church of Scotland Act 1921).  The secular state exercises jurisdiction over civil matters.

Thus the Church of Scotland cannot be a perfect society, since the jurisdiction of a perfect society is not limited, but extends to all matters of governance, whether spiritual or secular.  The tension between spiritual and secular jurisdiction in Scotland was examined by the House of Lords in the case of Percy v Church of Scotland Board of National Mission (2005) UKHL 37.

There is a superficial resemblance between the governance of the Roman Catholic Church and that of Anglican Churches outside England (e.g the Church in Wales) and congregationalist Churches such as Methodists and Baptists.  However, these other Churches are not perfect societies or independent of the states in which they exist.  They are, as Leo XIII implied, private associations whose status as such depends on ‘the concession and favour of the [secular] government’.  They receive their autonomy from the secular state itself, usually through the agency of contract or trust law, or by special legislation, out of respect for the ‘human rights’ of their members.

The Queen, the Pope and Enoch Powell

Papal jurisdiction was the subject of a memorable letter to The Times by Enoch Powell (then an Ulster Unionist MP) published on 24th March 1982, on the eve of Pope John Paul II’s visit to Great Britain.

Powell concluded that it is ‘constitutionally and logically impossible for England to contain both the Queen and the Pope’, on account of their conflicting claims of authority.  The Queen is ‘on earth the Supreme Governor of the Church of England’, the Pope is ‘Christ’s Vicar upon the earth’.

It is significant that the word earth is used twice.  Powell sees authority in territorial rather than functional terms.

The letter implies that the Pope’s claim includes a claim of territorial jurisdiction over England.  However, canon 331 of the Code of Canon Law 1983 describes the Pope as ‘Vicar of Christ and pastor of the Universal Church on earth’.  In that capacity, the Pope enjoys ‘supreme, full, immediate and universal ordinary power in the Church’.

Thus canon 331 does not exactly describe the Pope as Vicar of Christ upon the earth.  It does not claim a political jurisdiction over the earth.  The Pope’s authority is over the Church, rather than over the earth.  His jurisdiction is limited to the Church.

Canon 747 reinforces this point.  It provides that the Church ‘has the innate duty and right to preach the Gospel to all nations, independent of any human power whatever … to announce moral principles, including those pertaining to the social order, and to make judgments on any human affairs’.

This account of papal jurisdiction makes clear that it is religious, not political.  It extends no further than the proclamation of the Christian religion, as the Church defines this.

It may, of course, be objected that there can be no dichotomy between the religious and the political.  The Pope’s claim to be Vicar of Christ is religious.  The Church’s duty to proclaim the Gospel is likewise a religious duty, derived from the Lord’s command to make disciples of all nations.  However, the Church’s ability to proclaim the Gospel to all nations is relevant to the governments of those nations.

To this extent the Church’s right to preach the Gospel is a political question, as well as a religious one.  The duty to proclaim the Gospel is a religious matter.  The right to proclaim the Gospel in a particular nation is a political matter.

The political right of the Church to proclaim the Gospel, asserted in canon 747, is based on the principle of religious freedom, not any claim of territorial jurisdiction.  Canon 11 of the 1983 Code makes clear that ‘merely ecclesiastical laws bind [only] those baptised in the Catholic Church or received into it’.  Canon 748(2) is emphatic that ‘Persons cannot ever be forced … to embrace the Catholic faith against their conscience’.

This answers Powell’s suggestion that the Pope’s claim to be Vicar of Christ conflicts with the Monarch’s supremacy over the Church of England.  The Church of England is obviously not part of the Roman Catholic Church.  Thus members of the Church of England are not expected to observe Roman Catholic laws or embrace the Catholic faith, unless they freely choose to do so.

The Monarch likewise permits her Catholic subjects to practice their religion.  The Pope makes no political claim on England, only a religious claim.  The Monarch makes a political claim on her Catholic subjects, but no religious claim.  A conflict of territorial claims is avoided by mutual acceptance of the principle of religious freedom.

Acceptance of religious freedom resolves political difficulties but not religious ones.  The real difficulty between the Monarch and the Pope lies not in any political claim over England, but in the Roman Catholic religious teaching that the Church of England, of which the Monarch is Supreme Governor, is not part of the Catholic Church.

It must be remembered that the Code of Canon Law was not promulgated until 1983, the year after Powell wrote his letter.  However, the Code itself is based on the teaching of the second Vatican Council, which dates from the 1960s.

Brown v Notre Dame de Montreal (a corporation)

(1874) Law Reports 6 Privy Council 157

This case concerned a right of burial in a Roman Catholic churchyard in Montreal, Canada.  The churchyard was divided into two sections.  Neither section was consecrated.  One section was the normal place of burial of parishioners.  The individual grave would be blessed or consecrated before interment, and the departed parishioner would be buried according to the rites of the Church.

The other section was reserved to excommunicates, notorious sinners and the unbaptised.  Burial was without consecration of the grave or ecclesiastical rites. 

Both sections of the churchyard were under the control (not necessarily the ownership) of the parish corporation, which comprised the parish priest and churchwardens.

G was a Catholic and a parishioner.  However, he had gravely offended the Church hierarchy by his involvement with a literary institution which taught ‘pernicious doctrine’ (p.196).  The local bishop had publicly denounced the institution and its promoters, because it contained books on the Index.  He cited decrees of the Council of Trent which held that

(1) the hierarchy was the sole judge of the morality of books and

(2) persons keeping or reading prohibited books were liable to excommunication (p.194).

The Roman curia had supported the bishop.  It had issued a decree forbidding Catholics to belong to the institution (p.196).  The bishop ordered the parish priest to refuse absolution to members of the institution.  G was well aware of the attitude of the hierarchy but specifically refused to resign from the institution.

When G died the parish corporation agreed that he could be buried in the churchyard, but only in the section reserved for excommunicates etc, and without ecclesiastical rites.  G’s representatives applied to the secular courts for an to compel the corporation to permit burial in the normal place of burial instead.

Sir Robert Phillimore, author of the well-known commentary on ecclesiastical law, gave the Privy Council’s opinion on the case.  He first considered whether the secular court had jurisdiction to intervene in this dispute between Catholics. 

Lower Canada, including Montreal, had been a French possession till its conquest by the British in 1762.  The Catholic Church, with ‘Gallican’ modifications, was the established Church of Lower Canada before 1762, and its ecclesiastical courts had jurisdiction (p.204).

The Quebec Act 1774 provided that ‘subjects, professing the religion of the Church of Rome’ in Lower Canada ‘may have , hold and enjoy the free exercise of the religion of the Church of Rome, subject to the King’s supremacy’ (s.5).  The Act gave a legally enforceable right to Catholic clergy to demand ‘their accustomed dues and rights’, though only from Catholics.

Phillimore’s conclusion on jurisdiction followed the Privy Council’s decision in the earlier case of Long v Bishop of Cape Town (1863) 15 English Reports 756.  He held that the secular court had the same jurisdiction over the Catholic Church in Lower Canada as it had over the Anglican Church of South Africa.  Both Churches were to be treated as voluntary societies constituted on a consensual basis.  The court was bound to inquire into the society’s rules when it was alleged that the society or its officers have inflicted some loss or injury on one of its members.

As to the loss or injury in this case, Phillimore accepted that the Church had not refused burial of G’s remains, only of ecclesiastical burial.  However, he held that such refusal still constituted a loss, as it ‘implies degradation, not to say infamy’ (p.208). 

This is a puzzling suggestion.  It may refer to an injury to G’s reputation (even though he was dead, so presumably outwith the protection of the defamation laws) or to his remains (even though English law does not recognise any property in a dead body).

Phillimore accepted that the Catholic Church did have power to forfeit G’s right of ecclesiastical burial, but only in accordance with its own rules.  However, he held that G’s right had not been forfeited in accordance with these rules.  The parish corporation had therefore contravened the Catholic Church’s own rules in refusing ecclesiastical burial. 

Canon law refused burial rites to those who died excommunicate or in a specified state of grave sin.  Neither the local bishop nor the Roman curia had formally excommunicated G by name, even after his death.  Nor did G’s conduct in belonging to the literary institution fall into one of the specified categories of grave sin, in respect of which ecclesiastical burial was denied.

The wording of the Tridentine decrees suggested that a person contravening them might be excommunicated ipso facto, without a formal sentence being required.  However, Phillimore found that the Tridentine decrees had not been recognised by the ‘Gallican’ Church, and so could not have been in force in Lower Canada before 1762.  There was ‘no evidence’ that French Catholics had consented to be bound by the Tridentine decrees since 1762 (p.218)

The parish corporation could not plead that they were acting in obedience to the bishop’s order.  The bishop’s order did not comply with the canon law as stated above, and there was no evidence that he had any power to dispense from the canon law in such a matter.

Despite reaching these conclusions, the Privy Council did not order the Catholic Church to give G a Catholic burial.  G’s representatives had not sought such an order, and the parish priest, who would officiate at any funeral, had not been personally summoned to appear in the proceedings, but only as part of the corporation.  The final order merely directed the corporation to permit burial in the ordinary part of the churchyard, in the expectation that the Church would then feel impelled to perform the burial rites.

Phillimore was right to hold that the secular court had jurisdiction to intervene in the dispute.  Not only was its jurisdiction supported by Long v Bishop of Cape Town, the Quebec Act itself made clear that the Catholic Church in Lower Canada was ‘subject to the King’s supremacy’.  The laws of the Roman Catholic Church could not have the force of law in Lower Canada and must therefore have been subject to secular jurisdiction.

However, it is argued that Phillimore’s interpretation of the Roman Catholic law was flawed.  His essential reason for overruling the Catholic authorities was his opinion on the validity of the Tridentine decrees.  The Tridentine decrees may not have been valid under the French ecclesiastical jurisdiction, but that jurisdiction had, of course, been abolished in 1762.   The wording of the Quebec Act referred simply to ‘the religion of the Church of Rome’, without any reference to Gallican modifications, and the Tridentine decrees were undoubtedly recognised by the Church of Rome.

The reference to no evidence of ‘consent’ on the part of Canadian Catholics to the Tridentine decrees (p.218) suggests that, in his reliance on Long v Bishop of Cape Town,  Phillimore failed to appreciate the difference between the Canadian Catholic Church and the Anglican Church of South Africa.  Both Churches were subject to the jurisdiction of the secular court.  Membership of both Churches was voluntary.  However, authority within the two Churches was quite different. 

Long v Bishop of Cape Town held that, absent an ecclesiastical jurisdiction conferred by law (as in the Church of England), authority within the Anglican Church of South Africa was, by default, based on the consent of clergy and lay members.  No other basis of authority existed.  As Phillimore ought to have known, the ‘religion of the Church of Rome’ includes belief in a power of governance vested in the Catholic hierarchy by divine law, which does not require the consent of lay members.

Gallicanism may have limited the jurisdiction of the Pope in favour of that of the Catholic Monarch, but the Monarch’s jurisdiction was not dependent on popular consent either.  Gallicanism was in any case extinct by the 1870s, the French monarchy having been abolished earlier in the 19th century.