Sede Vacante: The Administration of a Vacant Bishopric

Last year we were sadly reminded that 1 ecclesiastical office is never made vacant, even by death – that of the Supreme Head (or Supreme Governor) of the Church.   It is said that ‘the Monarch never dies’. 

The new King therefore acquired a complete and perfect title to the Crown – and thereby the Church – from the moment of our late Queen’s death.  The Accession ceremonies and proclamations, and the forthcoming Coronation, add nothing to that title.  (This is discussed further in ‘The Coronation Oath: Right and Rite’, filed under category ‘Royal Supremacy’.)

This is a constitutional difference between the Monarchy and the Holy See (the Papacy), which regularly falls vacant.

In the Roman Catholic Church there is a type of suffragan bishop, known as a coadjutor, who not only assists the diocesan bishop, but has the right to succeed him (1983 Code, canon 403(3).  (The office apparently has ancient origins.)  Thus, if a diocese has a coadjutor, there will be no vacancy in the see when the incumbent diocesan bishop leaves office.  The Bishops Resignation Act 1869 made similar provision for the Church of England, but that Act was repealed in 1951.

(Coadjutors in the Latin Church are appointed by the Pope.  The Pope is himself a diocesan bishop, of course.  Last year there was some media speculation that the present Pope might appoint a coadjutor with right of succession to himself, and thereby override the cardinals’ right to elect his successor.)

Declaring the Vacancy

The resignation or other departure of an officeholder, including a bishop, must be distinguished from a notice or declaration that the office is now vacant.

When a benefice becomes vacant, or is shortly to become vacant, the bishop gives notice to the ‘designated officer’ of the diocese, who then administers the process of appointing a new incumbent (Patronage (Benefices) Measure 1986, s.7).  When a bishop resigns, or retires at 70, the Archbishop declares the vacancy: Bishops (Retirement) Measure 1986, s.1.  When the Archbishop himself departs, the Monarch declares the vacancy by Order-in-Council.  An Order-in-Council is also required to declare a vacancy when a bishop is removed for misconduct: Clergy Discipline Measure 2003, s.24(2)).

Death in office is now very rare. Resignation and retirement are the norm, but it was not always thus.   An old edition of Halsbury’s Laws observed that ‘Avoidance [of a bishopric] in ordinary cases takes place either by death or translation [i.e moving the bishop to another diocese].  An ordinary vacancy ought to be certified to the Crown … by the dean and chapter’ (3^rd edition, 1957, p.75n).  It seems unnecessary for the dean and chapter to certify a vacancy to the Crown where the bishop is translated, because translation is by authority of the Crown, so the Crown will already be aware of the vacancy.

(Canon C23(1) provides that a vacant benefice or other vacant cure in the diocese should be notified to the bishop by the rural (area) dean.)

Temporalities

The office of bishop (and Archbishop) comprises

(1) temporalities, the proprietary rights that attach to the office.  In former times these were very considerable: ‘castles, manors, lands, tenements, parsonages, tithes … [and] rights of presentation [to benefices]’ (Halsbury’s Laws, 1^st edition, vol 11, para 781).

(2) spiritualities are the duties attached to the office.  They include ‘all manner of jurisdictions of courts ecclesiastical, such as granting licences to marry … admissions and institutions [to benefices]’ (para 782), consecrating new churches and ordaining new clergy.

When the see is vacant, temporalities and spiritualities are subject to different regimes.  There has never been any doubt that the Monarch is sole guardian of the temporalities ‘by his prerogative as founder [i.e donor] of all Archbishoprics and bishoprics, to whom during the vacancy they revert’.  The temporalities of a vacant see were formerly a lucrative source of income for the Crown.

However, the most recent edition of Halsbury’s Laws observes that ‘the temporalities of all Archbishoprics and bishoprics, except rights of patronage, are now vested in the Church Commissioners, so that it is now only rights of patronage

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that are administered by the Crown during a vacancy’ (5th edition 2011, para 209).  Such rights have no economic value.

A recent statute, cumbersomely entitled the Vacancies in Suffragan Sees and Other Ecclesiastical Offices Measure 2010, confirms the common law rule that the diocesan bishop’s rights of patronage, being temporalities, revert to the Crown during a vacancy (s.2).  However, the 2010 Measure goes on to provide that such rights are prima facie exercisable by a suffragan bishop.  Thus the right of presentation still belongs to the Crown, but it is exercised by the suffragan on behalf of the Crown, as the Crown’s representative.

The Crown may always choose to exercise the right directly: ‘Her Majesty may give notice … to the [suffragan] … that she wishes to exercise her right of presentation …’, in which case the suffragan may not do so (s.2(3)).

It may not be quite accurate to say that rights of presentation are the only temporalities remaining to a bishop.  A recent article in the Ecclesiastical Law Journal suggests that a bishop may be the legal freeholder of certain cemetery chapels (D and P McClean, ‘Shared Burial Grounds’, September 2022, pp295-308) . Although he is not its legal owner, the bishop’s private chapel may not be entered on the official list of places of worship when the see is vacant (Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.41(7)).

Spiritualities

Regulation of the spiritualities during a vacancy is more complex.  Not being a source of profit, the spiritualities were of no interest to the Crown and so were left to the Church.  Historically, guardianship was claimed both by

(1) the Archbishop of the Province and

(2) the cathedral chapter of the vacant see.

It is hard to see any modern justification for the chapter’s claim to the spiritualities.  The chapter was originally the bishop’s council or senate, assisting him to the govern the diocese.  This is presumably the basis of its claim.  However, the chapter’s diocesan responsibility ceased many centuries ago.  Since the middle ages (well before the Reformation) the chapter’s constitutional responsibility has been limited to governing the cathedral, and the cathedral itself has been constitutionally independent of the rest of the diocese.  (See various posts filed under category ‘Cathedrals’.)  Today the bishop’s council is a quite different body from the cathedral chapter (Church Representation Rules, rule 44(2)(h)).

The Archbishop’s claim to guardianship of the spiritualities is overwhelmingly stronger than the chapter’s claim.  It is inherent in his common law metropolitical jurisdiction over the Province ‘as superintendent of all ecclesiastical matters therein’ (canon C17(2)).  The chapter’s claim denies that jurisdiction.  It may amount to a contrary custom, by denying the Archbishop’s common law right.

It is therefore unsurprising that the chapter’s claim enjoys little support from commentators.  Halsbury’s Laws suggests that ‘In … most dioceses it seems that the guardianship has by long usage been exercised by the Archbishop’ (5th ed, para 210).  Moore’s Introduction to English Canon Law suggests that the dean and chapter exercise the guardianship in the diocese of Durham (4th edition 2013).  However, Mark Hill’s Ecclesiastical Law states categorically that ‘The guardianship of the spiritualities during a vacancy no longer vests in the dean and chapter’ (4th edition, p.127).

Yet canon C19, ‘Of Guardians [plural] of the Spiritualities’, though recently amended, refuses to abandon the chapter’s claim, providing that

‘Wherever a bishopric be vacant the guardianship of the spiritualities … shall be exercisable by the Chapter … unless by prescription or composition or by virtue of an enactment or other legal instrument it belongs to the Archbishop … (C19(2)).

(The recently amended version of canon C19 refers to the Crown’s rights of presentation on a vacancy, indicating a failure to appreciate that presentation is a temporality, not a spirituality.)

The Spiritual Jurisdiction of the Monarch

Admittedly the constitutional position is different when the Archbishopric itself is vacant.  An Archbishop has no episcopal superior.  The Archbishop of Canterbury is not the Archbishop of York’s superior, nor vice versa.

However, the Monarch is undoubtedly the constitutional superior of both Archbishops, ‘the highest power under God in this Kingdom, and has supreme authority over all persons in all causes, as well ecclesiastical as civil’ (canon A7). 

Yet Halsbury’s Laws specifically denies the Monarch’s guardianship of spiritualities when an Archbishopric (either Canterbury or York) is vacant (para 151).  Furthermore, it avers that

‘During a vacancy of the See of Canterbury, the dean and chapter, as guardian of the spiritualities, are empowered … to grant all such licences and dispensations throughout both provinces as may be granted by the Archbishop under the Ecclesiastical Licences Act 1533’, mostly special marriage licences.

It is true that the 1533 Act confers this power on ‘the guardian of the spiritualities’, at s.10.  But it does not identify the dean and chapter of Canterbury as guardian.  It makes no explicit reference to them at all, only to ‘the guardian of the spiritualities’.  Thus it confer power on the guardian, but does not confer guardianship on the dean and chapter, or even confirm them as guardian. A reference to ‘the guardian’ is like a reference to ‘the ordinary’ – it is capable of referring to more than 1 authority.

It is argued, contrary to Halsbury, that the Monarch does have an inherent guardianship of the spiritualities of a vacant Archbishopric, as part of the supreme authority acknowledged by canon A7.  Any guardianship exercised by the chapter is therefore subject to the Monarch’s overriding jurisdiction.

Moore’s Introduction reminds us that there is a precedent for the Monarch’s spiritual jurisdiction (3rd ed, 1993, p.22).  The late Thomas Cromwell was appointed Vicegerent in Spirituals, or royal Vicar-General, shortly after the 1533 Act was passed.  It is true that this office has never been revived since Cromwell, but, as Moore points out, it could be revived in the future.  Phillimore’s Ecclesiastical Law (2^nd edition 1895) also discusses the possibility of a royal visitation of the Church (p.1062).

It is therefore argued that, if dissatisfied with the Metropolitical chapter’s guardianship of the spiritualities, the Monarch could appoint the other Archbishop, or a third party, to exercise this function instead.

And even if s.10 of the 1533 Act does confer some right on the dean and chapter of Canterbury per se, that right would be limited to the matters referred to therein.  It would not extend to all guardianship functions.

The Modern Law

The chapter’s claim to guardianship of the spiritualities would be just and reasonable if the Chapter was still the bishop’s council, assisting the bishop to govern the diocese.  Apart from the anachronism of canon C19, and though coadjutors are no longer appointed, modern ecclesiastical law is based on a sensible policy of giving responsibility to those who now assist the bishop (rather than to those who ceased to do so many centuries ago), subject to appropriate interventions by the Archbishop, thereby ensuring a smooth transition to the new bishop.

This means that, even if the chapter’s claim to the spiritualities is admitted, the modern law effectively prevents it from being exercised in practice.

Thus the jurisdiction of other diocesan authorities continues, notwithstanding a vacancy in see.  Their jurisdiction is not ‘inhibited’ by the vacancy.  Canon C22(2) confirms that ‘Every archdeacon within his archdeaconry exercises the jurisdiction which he has therein as an ordinary jurisdiction’, i.e the archdeacon’s jurisdiction is not merely delegated by the bishop.

The Care of Churches and Ecclesiastical Jurisdiction Measure 2018 makes clear that ecclesiastical courts, whether diocesan or provincial, continue to exercise jurisdiction (s.22).  The work of the disciplinary tribunals likewise continues (Ecclesiastical Jurisdiction Measure 1963, s.12(1) – see also s.99(3) of the 2018 Measure for the Vicar-General’s Court).

A vacancy in see does not affect the function of the Vicar General, or his surrogates (2018 Measure, s.99(4)).  These are the officials responsible for marriage licences.

The Acting Bishop – or Bishops

The diocesan bishop’s own jurisdiction is regulated by the Dioceses Pastoral and Mission Measure 2007.  S.12 imposes a duty on the bishop to ‘keep under review the provision of episcopal ministry and oversight’.  It is argued that this duty includes the provision of arrangements if the bishop has to vacate his office, or becomes incapable of exercising it. 

Pursuant to his s.12 duty, s.13 authorises the bishop to delegate his official functions.  A delegation must be approved by the diocesan synod, or at least by the bishop’s council.  The only function that may not be delegated concerns the procedure for ordaining divorced and remarried persons.  Such procedure will have to await the appointment of a new bishop.

S.13 further provides that a delegation ‘may provide for it to continue to have effect … after … the bishop … ceases to hold that office’ (6).  Such a delegation ‘shall … continue … until … 6 months [after] another person becomes bishop’ (9).  The ability to exercise the Crown’s right of presentation during a vacancy in see, as discussed above, will depend on such delegation.

If appropriate delegation is lacking when a bishopric falls vacant, the Archbishop may delegate instead, under s.14.  If the Archbishopric itself is vacant, the next most senior bishop of the Province exercises this power.

Hill’s Ecclesiastical Law explains that ‘The role of acting bishop … may be exercised during a vacancy by 2 or more persons [bishops], with the functions divided between them territorially or otherwise’ (p.127).

Canon B16(2) suggests that an acting bishop cannot authorise the exclusion of a ‘notorious offender’ from Holy Communion.  Only the Archbishop can do this in a vacancy.  Likewise the power to licence a clergyman for secular occupation is reserved to the Archbishop in a vacancy under canon C28(4)).  However, it may well be argued that the 2007 Measure, which has ‘the force and effect of an Act of Parliament’, prevails over the canons, which lack such authority (Church of England (Assembly) Powers Act 1919, s.4).

The Cathedrals Measure 2021 follows earlier Measures by providing that the bishop is ex officio the Visitor of his cathedral (s.10).  Nevertheless the office of Visitor is separate and distinct from the office of bishop.  The 2021 Measure obliquely makes this point – s.9 is entitled ‘The bishop’, s.10 is entitled ‘The Visitor’.

It is therefore unlikely that the 2007 Measure empowers either the diocesan bishop or the Archbishop to delegate the Visitor’s function during the vacancy of the see.  S.14 of the Cathedrals Measure supports this view, by providing that a requirement to consult the Visitor ‘is to be ignored’ when the bishopric is vacant.

During a vacancy, the bishop’s functions under the Church Representation Rules, including those as president of the diocesan synod, are exercisable by ‘such person in episcopal orders as the Archbishop … may appoint’ (79).  This acting bishop may not delegate his functions to anyone else. 

An acting bishop may attend and speak, but not vote, at a meeting of the Upper House of Convocation, i.e the House of Bishops (canon H3).  If there is more than 1 acting bishop of the diocese, the Archbishop nominates the attendee.

The Archbishop – and the Other Archbishop

The bishop’s duty under s.12 of the 2007 Measure applies to the Archbishop qua diocesan bishop, though not qua Archbishop.  The Interpretation Measure 1925 confirms that ‘The expression ‘bishop’ in relation to the diocese of an Archbishop means the Archbishop’ (s.3).  It therefore follows that, when the Archiepiscopal see is vacant, the next most senior bishop of the Province will have the same power to delegate functions in the Archbishop’s diocese as he has over other vacant dioceses in the Province.

Although the 2 Archbishops are not each other’s superior, Hill’s commentary notes that ‘Where the Archbishopric becomes vacant … many of the functions of the Archbishop are exercised by the [other] Archbishop’.  The Archbishop’s functions under the Church Representation Rules are exercised by the other Archbishop during a vacancy (rule 79(3)). The Archbishop’s disciplinary functions over clergy and licensed lay ministers are likewise exercised by the other Archbishop: Clergy Discipline Measure 2003, s.30(6) and s.31(6), canons E6 and E8.  The Archbishops’ joint power to review an award of compensation for loss of office may be exercised by 1 Archbishop only during a vacancy (Mission and Pastoral Measure 2011, schedule 6, 6(11)).

The Easter Offering: Duty and Charity

‘[At] the Offertory, so many as are disposed, shall offer unto the poor men’s box every one according to his ability and charitable mind.

And at the offering days appointed, every man and woman shall pay to the Curate [i.e the incumbent] the due and accustomed offerings.’  (Book of Common Prayer 1549, rubric)

There seem to be 2 widely held assumptions concerning the Easter offering, that:

(1) it is the collection taken at church services on Easter Day and

(2) the proceeds are part of the incumbent’s official income, at least if the incumbent wishes to claim them.

The 1549 rubric quoted above suggests that this assumption is mistaken.  The rubric indicates a clear distinction between the Easter offering and the normal offertory collection, including the collection taken on Easter Day.  The Easter offering is separate from, and additional to, the offertory collection.

Moreover, the two payments are different in character.  The offertory collection is a voluntary charitable donation for the relief of poverty.  The Easter Offering, by contrast, is a ‘due’ payment, not a gift determined by charitable disposition.  A due is a duty (just like a duty on imported goods).  The Easter Offering is a compulsory payment, a tax payable to the incumbent.

As the rubric implies, Easter was not the only ‘offering day’ in the middle ages.  Phillimore relates that there were originally 4 offering days in all, Christmas, Easter, Whitsun-Pentecost and the feast of the dedication of the parish church (Ecclesiastical Law, 2nd edition 1895, p.1243).

However, from 1552 onwards, Easter is the only offering day referred to in the Book of Common Prayer.  The revised rubric provides that

‘yearly at Easter, every parishioner shall reckon with his parson, vicar or curate … and pay to … him all ecclesiastical duties, accustomably due …’.  The word offering no longer appears.

This revised wording, of course, makes more explicit the compulsory nature of the payment, and its difference from the voluntary donation for the poor.

Phillimore suggests that the Easter duty was a common law right of all incumbents (p.1243).  Therefore an incumbent did not have to prove his right to payment.  An Easter offering was a larger payment than the common law duty, but it was payable only if the incumbent could prove an immemorial custom in the parish for payment of the offering (i.e a custom dating from 1189, very difficult to prove).

Victorian legislation permitted individual parishes ‘to enter into a parochial agreement for the commutation of Easter offerings’ (p.1244), i.e to cancel the parish offering in return for payment of a one off lump sum to the incumbent.

Although reference to Whitsun as an offering day was removed from the Prayer Book in 1552, Pentecostals (Whitsun offerings or duties) may have continued after that time.  The Ecclesiastical Jurisdiction Measure 1963 provides that Pentecostals ‘shall cease to be exigible’ (demandable) (s.82(3)), but does not mention the Easter duty / offering.

The Easter duty / offering referred to in the Prayer Book has not been generally abolished, but it has been effectively destroyed by inflation.  The common law duty was a mere twopence a head (2d), so would now be impossible to enforce in practice.  An immemorial offering (if it can be proved) will only be worth a few pence more.  Common law and customary payments may not be adjusted for inflation (see the case of Bryant v Foot (1867) 2 Law Reports Queen’s Bench 161).

On our analysis, therefore, the incumbent’s only legal right is to the compulsory, though negligible, Easter duty.  He has no a priori common law right to keep the voluntary Easter collection for himself (any more than collections taken on other Sundays).  Even though it was removed from the rubric as long ago as 1552, the word ‘offering’, with its connotation of voluntary donation, has served to conflate the two payments artificially, encouraging a perception that they are one and the same.  However, they are clearly distinct in law.

The rubric concerning the offertory collection has changed since 1549.  It now provides that ‘the money given at the Offertory shall be disposed of to … pious and charitable uses’.  This, of course, allows a broader scope of use of the money than that available in 1549.  The money can now be applied to many uses other than the relief of poverty.  However, it is hard to argue from this that the incumbent’s personal benefit constitutes a ‘pious and charitable’ use.

The Parochial Church Councils (Powers) Measure 1956 empowers the parochial church council (‘the PCC’) ‘jointly with the minister to determine the objects to which all moneys to be given or collected in church shall be allocated’ (s.7(iv)).   If they cannot agree, the bishop decides instead (s.9(3)).

This power was originally expressed to be ‘subject to the directions contained in the Book of Common Prayer as to the disposal of money given at the offertory’.  The incumbent and PCC (and the bishop) therefore remained bound by the rubric.  They could decide how, exactly, the collection money was to be spent, but it still had to be spent on pious and charitable uses.

This restriction on the use of the collection money was removed in 1988, so the incumbent and PCC are no longer bound by the rubric at all.  However, it is arguable that, even in its amended form, the 1956 Measure does not confer an unfettered discretion on the incumbent and the PCC.  It suggests that the collection money must still be applied for the benefit of ‘objects’, i.e purposes or causes, rather than the benefit of particular people.

It has been pointed out that the rubric in the Book of Common Prayer applies only to the collection taken at Holy Communion.  The Prayer Book makes no provision for collections taken at Morning and Evening Prayer and other services.

In the case of Marson v Unmack (1923) Probate 163 the Court of the Arches suggested that ‘Collections … other than … the offertory, may lawfully be made for objects determined by agreement between the incumbent and the PCC.  Such objects may be and … ought to be announced to the congregation before collection …’ (p.169).  Again, the reference is to ‘objects’, and the Easter collection is not specifically discussed.

Apart from the wording of the 1956 Measure, it is arguably inconsistent with the incumbent’s trusteeship of the collection money for him to be able to determine that it should be paid to himself, even with the agreement of the PCC and the bishop, and even if the congregation is fully informed.  There is a clear conflict of interest.  A trustee may not profit from his trust.

If the incumbent’s claim on the voluntary Easter collection has no basis in common law it obviously requires a statutory basis.  It might therefore be appropriate to amend the 1956 Measure to provide this.

Moore’s Introduction to English Canon Law (3rd edition 1993) suggests that nowadays incumbents do not bother to claim the Easter collection, ‘since such offerings merely result in a pro tanto reduction in the [stipend] paid by the diocese’ (p.92).  Thus the stipend is simply reduced by the amount of the Easter collection money so the incumbent is no better off.

The Terms of Service Regulations 2009 confirm that an incumbent’s right to be paid the national minimum stipend is not absolute, but is subject to ‘any [other] income received by the office holder from other sources which is related to or derived from the duties of the office’ (reg 11.1).

Nevertheless the question of the Easter collection may still be relevant, even if incumbents no longer benefit personally.  A large sum of donated money is at stake.  If the incumbent makes a purported covenant or assignment of the Easter collection (to the diocese or elsewhere), this will be invalid if he is not entitled to the money in the first place.  (Nemo dat quod non habet).  Likewise, any decision on the allocation of the money, taken under the powers conferred by the 1956 Measure, may be flawed if it is influenced by the mistaken belief that the incumbent has a legal claim on it.

The Constitutional Doctrine of the 39 Articles

The Universal Church

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

The visible Church is described only as

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

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

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

‘The Church hath

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

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

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

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

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

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

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

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

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

A Local Episcopate

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

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

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

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

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

Thus the sequence of the Litany is

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

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

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

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

Church – bishops and clergy – Monarchy, Parliament etc. 

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

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

A Federation of Godly Princes

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

Canon 2 of 1603 enlarges upon this statement, asserting that

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

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

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

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

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

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

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

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

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

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

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

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

The Modern Difficulty

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

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

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

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

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

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

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

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

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

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

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

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

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

Ecclesia and Ecclesiastical Law

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

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

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

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

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

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

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

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

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

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