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The Lincoln Judgment

Read v Bishop of Lincoln (1890)

Edward King (1829-1910) is now commemorated in the Church of England’s liturgical Calendar (the nearest Anglican equivalent of canonisation), and by an impressive statue in Lincoln Cathedral, where he officiated as Bishop.  He was revered for his holiness, learning and pastoral zeal.  The Dictionary of National Biography suggests that he was the first Anglican bishop to wear a mitre.

However, Bishop King’s Anglo-Catholic ritualism was not to everyone’s taste.  The Church Association, a Low Church pressure group represented by Mr Read, complained about it to the Archbishop of Canterbury.

The complaints about the Bishop’s ritualism were similar to those made against the Rev Alexander Heriot Mackonochie (1825-1887), Vicar of St. Albans Church, Holborn, who also fell foul of the Church Association, represented this time by Mr Martin.  Mackonochie was prosecuted twice in the Court of the Arches.

Sir Robert Phillimore, Dean of the Arches (and original author of the famous commentary on ecclesiastical law), tried both the Mackonochie cases.  He upheld some of the complaints against Mr Mackonochie, but dismissed others.  However, the Church Association appealed to the Privy Council, which overruled Sir Robert and upheld the complaints that he had dismissed.

Mr Mackonochie was prosecuted under the Church Discipline Act 1840.  He was a mere vicar.  There was then no statutory procedure for the trial of a bishop.  The Archbishop of Canterbury, Edward White Benson, decided to try the case against Bishop King personally, under a common law procedure formally described as ‘the Court of the Archbishop’ (or, less formally, ‘the Archbishop in his library’).

In Bishop of St David’s Case (1699) 91 English Reports 126, the secular court accepted that ‘By the common law, the Archbishop has a metropolitical jurisdiction … Archbishops are over bishops, as well as bishops are over the other clergy’ (p.127).  Accordingly ‘the Archbishop hath a provincial power over all bishops of his province and may hold his court where he will, either at the Arches or elsewhere.  He may likewise convene the [accused] party before himself and judge himself …’ (p.711).  This was the authority for the Lincoln Judgment.

The Lincoln Judgment resembles Phillimore’s judgment in Martin v Mackonochie (No.1) (1868) Law Reports 2 Admiralty and Ecclesiastical 116.  Both are very long:  Sir Robert’s runs to 130 pages, the Archbishop’s to a mere 89 pages.  They are long for the same reason: copious citation and discussion of theological and historical materials.  The Privy Council later observed that the Archbishop ‘consulted ancient authors, historical and theological works, pictures, engravings and a variety of documents … (1892) Appeal Cases 644, at p.652.  All this erudition is impressive, but it also makes the judgments arduous to read.

The complaints against Mr Mackonochie and the Bishop of Lincoln mostly alleged the performance of illegal ceremonies.  The Archbishop defined a ceremony as ‘a formal symbolic gesture of religious meaning publicly made by the Minister in his character of Minister, rendering the delivery of language more solemn, and not merely expressing his private devotion’ (p.81).  Thus a ceremony is a public act, to be distinguished from a private devotional act.  A ceremony is an action.  It must therefore be distinguished from a rite (which is a form of words) and from an ornament (a physical item).

The Bishop was charged with the following offences

(1) Mixing Water with Wine

(2) Administering the Mixed Chalice

1549 rubric: ‘the minister … putting the Wine into the Chalice … [and] putting thereto a little pure and clean water’

1552 and 1558 rubrics: no equivalent

1662 rubric: ‘the priest shall … place upon the Table so much Bread and Wine, as he shall think sufficient’.  (No reference to water).

The Archbishop concluded that the removal of the 1549 rubric from the 1552 Prayer Book meant that the ceremony of mixing water with wine must be discontinued.

However, he concluded from a review of the historical evidence that

(1) mixing before the Communion Service had begun was the practice of the Early Church and

(2) the reformers were aware of this, and sought to replicate the practice.

Therefore mixing before the service was not an illegal ceremony, but a permitted practice.

(3) Ablution

1662 rubric: ‘if any [Bread and Wine] remain … which was consecrated … the Priest and such other of the Communicants as he shall call unto him, shall, immediately after the Blessing, reverently eat and drink the same’.

This rubric clearly contemplates that the consumption of leftovers may be done in public, as it provides that

(1) the priest may consume together with other communicants, not alone, and

(2) consumption shall take place immediately, without delay, therefore at a time when the congregation will still be present.

The Bishop’s action complied with the rubric and was not an illegal ceremony.

(4) Eastward Position

1549 rubric: ‘The Priest standing humbly before the middle of the Altar’

1552 rubric: ‘The Table … shall stand in the body of the Church, or in the Chancel … the Priest standing at the north side of the Table’.  (‘Table’, not ‘Altar’ any more.)

1558 and 1662 rubrics: ditto.

1662 rubric: on the Offertory ‘the Priest … shall humbly present and place it upon the Holy Table’.

The rubrics only refer to the Eastward and Northward positions in relation to the opening prayers in the Communion Service.  They are silent as to the correct position during the Consecration.  The Archbishop pointed out that the Offertory Rubric necessarily requires the priest to face east.

The Archbishop denied that the Eastward position ‘conveys some sacrificial doctrine of the Eucharist against the doctrine of the English Church’.  He observed that the Tractarians ‘habitually celebrated at the North End, and many who have used the Eastward position have done so with no thought that they were teaching any doctrine by it …’ (p.43).

He concluded that ‘The imputed sacrificial aspect of the Eastward position is new and forced, and can take no effect in rendering that position either desirable … or illegal’ (pp43-44).  It was therefore permitted.

(5) Not Breaking the Bread ‘before the People’

1662 rubric: ‘the Priest, standing before the Table, [should have] so ordered the Bread and Wine, that he may … break the Bread before the People’.

Breaking the Bread is one of the 5 Manual Acts

(1) Taking the Paten

(2) Breaking the Bread

(3) Touching the Bread

(4) Taking the Cup

(5) Touching the Cup and any other vessel containing Wine.

This rubric is difficult to reconcile with the Archbishop’s conclusion on the Eastward position. ‘The Minister, wherever he stands during the Prayer of Consecration, is bound to take care that the Manual Acts should not by his position be rendered invisible to the bulk of the Communicants’ (p.49).

As the Bishop was in the Eastward position during the Prayer of Consecration, the congregation could not see him breaking the Bread.  This contravened the Rubric.

Moreover, as the Archbishop himself acknowledged, ‘the tenor of the Common Prayer is openness … and specially to replace [i.e reinstate] the Eucharist in its [original] character as the communion of the whole Body of Christ’ (p.50).

(6) Reciting the Agnus Dei

The Agnus Dei is a prayer or hymn, therefore a rite, not a ceremony.  It appeared in the original Book of Common Prayer 1549, but was omitted thereafter.  The reason for this omission was ‘because it was associated with the Mass and the adoration of the Host’, but not because of any doctrinal objection.  On the contrary, the 2 clauses which compose the Agnus Dei are ‘taken out of the Bible’ (p.60).  They also appear in the Gloria In Excelsis, which was never omitted from the Prayer Book.

The Archbishop pointed out that it had never been considered illegal to sing a hymn or anthem during the Communion Service, even where this is not expressly prescribed.  The Act of Uniformity 1548 also provided that ‘it shall be lawful … to use openly any psalms or prayer taken out of the Bible at any due time’.

Recitation of the Agnus Dei was therefore not unlawful.  This conclusion actually contradicted that of Phillimore, who had held that it was unlawful: Martin v Mackonochie (No.2) (1874) Law Reports 4 Admiralty and Ecclesiastical 279.  However, his son and editor, Sir Walter Phillimore, conceded that ‘this question was argued more thoroughly [in the Lincoln case] than it had been previously’ (Ecclesiastical Law, 2nd ed 1895, p.776).  The Archbishop’s reasoning is indeed compelling on this point.

(7) Lighted candles on the Communion Table ‘as a matter of ceremony and when … not wanted for the purpose of giving light’.

Lighted candles were clearly lawful before the Reformation (p.66).  Were they outlawed at the Reformation?

There is no specific rubrical reference to candles, but candles are clearly ‘ornaments of the church’, and therefore governed by the Ornaments Rubric.  In Mackonochie (No.1), however, Phillimore considered that the use of lighted candles was a ceremony, and the Privy Council was ‘disposed to agree’: (1868) Law Reports 2 Privy Council 365, at p.385.  It pointed out that ‘There is a clear and obvious distinction between

[1] the presence in the church of things inert and unused and

[2] the active use of the same things as a part of … a ceremony’.

However, the Archbishop dealt with the lighted candles as ornaments, not ceremony.  He held that ‘it does not appear that [the Ornaments Rubric] … altered the legality of the 2 lights … if it was legal up to this time that they should so stand’ (p.71).

The conclusion that lighted candles were not illegal (whether qua ornament or qua ceremony) flatly contradicted the Privy Council’s decision in Martin v Mackonochie (No.1), though it agreed with Phillimore’s decision which the Privy Council had overruled.

Mr Read did not neglect to inform the Privy Council of the Archbishop’s apparent disregard of its authority.  The Privy Council admitted that ‘If the proof [i.e evidence] corresponded with the allegation [against the Bishop] … it would be a matter for grave consideration how far the Archbishop’s elaborate exposition of the history of the question … [has] afforded new materials for consideration since the decision of this Board in Martin v Mackonochie upon the same subject’ (pp.666-7).

However, nearly a quarter of a century had passed between the first prosecution of Mr Mackonochie and the Lincoln Judgment.  Judicial attitudes to ritualism were evidently more relaxed by then.  The Privy Council was obviously unwilling to overrule the Archbishop.  It therefore identified an ingenious distinction between the facts of the 2 cases.

The true issue in both cases was not whether lighted candles were lawful or unlawful, but whether Mr Mackonochie or the Bishop had acted illegally.  Mr Mackonochie had acted illegally, because he was a vicar and officiating in his own church when the candles were lit.  They must have been lit either by him personally or by someone else at his direction.

The Bishop, by contrast, had not acted illegally, because he had not lit the candles, nor caused them to be lit.  (At least, there was no evidence that he had.)  The candles were the responsibility of the vicar of the church where the Bishop was officiating.  The Bishop may have approved of the lighted candles but approval per se did not amount to an ecclesiastical offence.  Any criminality in respect of the candles attached to the vicar, not the Bishop, and the vicar was not on trial.

(This distinction might be persuasive if the bishop had been officiating outside his diocese, as a visitor or guest.  As it was, however, the Bishop was officiating in his own diocese, and therefore in a place where he had the chief cure of souls, and was the vicar’s canonical superior.  In these circumstances, it could well be argued that the Bishop was ultimately responsible for the candles.)

It was therefore on the basis of this dubious and hairsplitting technicality that the Lincoln Judgment was allowed to stand, notwithstanding the Privy Council’s contrary conclusion in Mackonochie.  The Privy Council did not actually accept the Archbishop’s conclusion on candles, and did not repent of its earlier decision.  It merely agreed with the Archbishop that the Bishop had not acted illegally, but for different reasons.

(8) Sign of the Cross in Absolution

The Prayer Book refers only to the Sign of the Cross in baptism, not elsewhere.  It was argued for the Bishop that ‘omission of a direction is not a prohibition’ (p.82).  The Archbishop considered that the ceremony could only be lawful if it had been practised in the mediaeval Church.  The Prayer Book could not be expected to prohibit a practice that was then unknown.

Having reviewed the mediaeval English liturgies, the Archbishop found that ‘there is no direction for even … private crossing of himself by the priest’ (p.83).

If it was not a revived mediaeval practice, the Sign of the Cross in Absolution must be ‘An observance … borrowed and introduced from foreign [i.e popish] usages’ after the Prayer Book was written (p.83).  Thus it could not be treated as a practice omitted, or tacitly approved, by the rubrics.  On the contrary, it was ‘an innovation which must be discontinued’ (p.84).

(9) Sign of the Cross in Benediction

1549 rubric: ‘the Priest turning him to the people, shall let them depart with this Blessing’

1552 rubric: ‘the Priest or the Bishop, if he be present, shall let them depart with this Blessing’

In the mediaeval Mass, apparently, there was no final blessing by the priest, merely a dismissal of the faithful with such words as Ite, Missa Est or Benedicamus Domino.  A blessing was pronounced only by the bishop, if he were present.  This special episcopal blessing did not involve the Sign of the Cross, merely the lifting up of the hand (p.85).

The closing blessing in the Prayer Book could not therefore be a continuation or revival of a mediaeval ceremony (p.87).  The Prayer Book blessing did not provide for or permit the Sign of the Cross, any more than the Absolution.

The conclusions reached by the Lincoln Judgment are generally persuasive, with the exception of (4), concerning the Eastward Position.  However, the Judgment can be criticised to the extent that it

(1) relied too much on extraneous material that was either irrelevant or of marginal relevance and

(2) paid insufficient regard to the Book of Common Prayer, which was the true source of authority for its conclusions.

Conclusion (8) best illustrates the confusion of erudition and authority.  The Archbishop held that the Sign of the Cross in Absolution was illegal because it was a modern, post-Reformation ceremony, and not a mediaeval ceremony.  If it had been a mediaeval ceremony, it would have been lawful.

Yet the Preface to the Book of Common Prayer ‘Concerning Ceremonies’ is unequivocally subtitled ‘Why some be abolished, and some retained’.  The dichotomy is clear.  A ceremony is either abolished, or it is retained.  All ceremonies not retained in the Prayer Book are abolished.  The question whether a particular ceremony is lawful must therefore be answered by consulting the Prayer Book, not extraneous sources.  If a particular ceremony is not retained in the Prayer Book then it is not permitted, regardless of whether it is mediaeval or modern.

The Privy Council observed in Mackonochie that the Preface ‘divides all ceremonies into … 2 classes: those which are retained are specified … none are abolished specifically … but it is assumed that all are abolished which are not expressly retained’ (p.388).  This was the essential reason why it overruled Sir Robert.

The Preface emphasised the self-contained, comprehensive character of the Prayer Book as a manual of public worship.  Retained ceremonies ‘are so set forth [in the Book of Common Prayer] that every man may understand what they do mean, and to what use they do serve’.  This does not require the brains of an Archbishop!  The Archbishop’s ‘elaborate exposition’ of history and theology, though impressive in a way, was irrelevant, and perhaps even positively misleading.  Phillimore’s erudite judgment in Mackonochie may be open to similar criticism.

This analysis shows that the Prayer Book rule concerning ceremonies was stricter than its rule concerning ornaments.  In the blogpost ‘What did the Ornaments Rubric mean?’, filed below, it is argued that the Ornaments Rubric, on its wording, required the use of some ornaments, but did not positively forbid others.  The Preface ‘Of Ceremonies’, by contrast, required the use of some ceremonies, but also did positively forbid all others.

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Akhter v Khan: Sharia Law and Common Law

(2018) Family Court 54

At common law, a marriage was never invalid for lack of ceremony.  It could only be invalid on account of some impediment existing when the marriage was made (e.g consanguinity, or a surviving spouse from a previous marriage).

Since 1753, however, statute law has provided that all marriages must be solemnised in accordance with a legally recognised ceremony.  A common law marriage without ceremony is no longer a valid marriage.

This is clear enough in principle.  However, it raises the practical question of how perfectly the ceremony must be performed for the law to recognise it.  Will the smallest ceremonial slip invalidate the marriage?  Is it not harsh to invalidate a marriage because the couple have made an innocent mistake about the ceremony?  A fortiori is it not unjust to invalidate the marriage where the mistake has been made by the officiating minister, not the couple?

The Marriage Act 1949 now provides for 2 categories of legally recognised marriage ceremonies

(1) marriage according to the rites of the Church of England (Part 2 of the Act) and

(2) marriage under a superintendent registrar’s certificate (Part 3)

Each of these regimes includes a provision concerning void marriages (s.25 and s.49 respectively).

The case cited above concerned a couple who got married in a Muslim religious ceremony, known as a Nikah, which took place ‘at TKC Chowdhury’s in Southall’ (para 20), i.e in England, and was solemnised by an imam in accordance with Sharia law.  The imam warned that a civil ceremony was required for legal recognition of the marriage.  The wife, a trainee solicitor, needed no warning: ‘she was expecting the husband to organise … the civil ceremony … she was concerned that her rights were not protected … that they would be treated as cohabitees’.

However, the husband was not interested in a civil ceremony.  He ‘fobbed the wife off’ (para 26) and became angry (and allegedly violent) when she kept nagging him about the matter.

Despite these difficulties, the Muslim marriage lasted many years and produced children.  Then, eventually, the relationship ‘was shattered by the husband’s proposal to take a second wife’ (para 29).  (This may explain his reluctance to make a civil marriage.)

The wife asked the English court to annul the Muslim marriage, and vindicate the rights that she had feared were not protected.  The court granted a decree of nullity.

This meant that the wife could make a claim for maintenance (‘alimony’, as it is often called) against the husband, including his property and pension rights, on the same terms as a lawful wife in a divorce case (cf.para 7).  A partner in a non-marital cohabitation, by contrast, has no right to make such a claim against her partner when the relationship breaks down.

On one view it may be unsurprising that the court annulled the marriage.  Clearly the marriage was not valid in English law.  However, as the court observed ‘it may appear an easy question to answer.  Surely a marriage which is not a valid marriage is a void marriage and thus can be annulled?  Regrettably it is not that simple’ (para 5).

The comparison with common law marriage indicates the difficulty.  If the courts granted nullity decrees to unmarried cohabitees on the basis that their relationship was an invalid common law marriage, it would be fairly easy for cohabitees to acquire the same financial protection as divorced wives.  However, the courts do not grant such decrees.  So why should a party to a Sharia law marriage be treated more favourably than a party to a common law marriage, when both are equally invalid in English law?

The Matrimonial Causes Act 1973 provides that ‘A marriage … shall be void on the … grounds that it is not a valid marriage under … the Marriage Acts 1949 to 1986 … [inter alia] where … the parties have intermarried in disregard of certain requirements as to the formation of marriage’ (s.11).  (The evident policy of the law is that a man should not be able to avoid financial obligations to his wife on account of some defect in their marriage ceremony.)

The question is what, exactly, does s.11 mean by ‘marriage’ and ‘intermarried’?  The court acknowledged that ‘Unless a marriage purports to be of a kind contemplated by the Marriage Acts it will not be within s.11′ (para 92), i.e it will not be subject to a decree of nullity.  Marriages outside the scope of the 1949 Act, such as common law marriages, will be invalid, but the court still has no power to grant a decree of nullity in respect of them.

As mentioned, there are 2 types of marriage under the 1949 Act in respect of which a decree of nullity may be granted.  The marriage in this case was obviously not a Church of England marriage.  But was it a ‘marriage under a superintendent registrar’s certificate’, even though the superintendent registrar had had no involvement in the marriage?  The court decided that it was.

S.49 of the 1949 Act provides that marriage under a registrar’s certificate ‘shall be void’ where ‘persons knowingly and wilfully intermarry under the provisions of this Part of the Act [i.e Part 3]’, without observing certain requirements laid down by the Act.

The phrase ‘knowingly and wilfully’ indicates that a declaration of nullity depends on the deliberate, intentional conduct (or misconduct), of the parties to the marriage.  A declaration of nullity, like a criminal offence, requires a mens rea, a guilty state of mind.

It is therefore argued that s.49 will apply to persons who

(1) intend to make a marriage contract that will be recognised in English law but

(2) deliberately evade or disregard the legal requirements for recognition.

In this case, the couple did indeed disregard the requirements that the Act imposes for marriage under a registrar’s certificate (2).  Not just ‘certain requirements’ (per s.11) but all the requirements.  But they had a very good reason for this.  In holding their Nikal ceremony they never intended to make a marriage recognised by English law (1).  They intended only to make a marriage recognised by Sharia law.

Thus there was no attempt to evade legal requirements or deceive the registrar.  The only deception was the husband’s promise or indication to the wife that he would arrange a civil ceremony after the Muslim ceremony was over.

The wife, it is true, was anxious that her marriage should be recognised in English law.  But she knew very well that the Muslim ceremony would not achieve this.  Her own evidence stated that ‘I have married in Sharia law only’ (para 20).  Hence her persistent requests to the husband for a civil ceremony.

The husband, by contrast, positively wanted the marriage not to be recognised by English law.  (This would have interfered with his apparent right under Sharia law to marry a second wife.)

The court’s decision to grant a decree of nullity was influenced by 2 particular facts

(1) the quality of the Muslim ceremony and

(2) the husband’s ungentlemanly treatment of the wife.

However, it is argued that neither of these facts, correctly understood, supports the court’s conclusion on nullity, but actually undermines it.

(1) The court was evidently impressed that the Muslim ceremony ‘bore all the hallmarks of a marriage … it was held in public, witnessed, officiated by an imam, involved the making of promises and confirmed that both husband and wife were eligible to marry’ (para 95).  The couple had ignored the English law concerning marriage, but had scrupulously observed the Sharia law, and the marriage requirements of Sharia law resemble those of English law.

Yet this finding did not justify a decree of nullity.  On the contrary, if the Muslim ceremony ‘bore all the hallmarks of a marriage’ this points to its being a valid marriage, not an invalid one.  The fact that the ceremony resembles a marriage by registrar’s certificate does not mean that it is such a marriage.  S.49 refers only to an unsuccessful attempt to make a marriage contract under the Act.  

And the resemblances of the Muslim ceremony to marriage under a registrar’s certificate apply equally to a Church of England marriage.  Church of England marriages, no less than registrar’s marriages, are public, witnessed, officiated, involve promises etc.  Yet it would be absurd to hold that the Muslim ceremony was a void Church of England marriage, under s.25 of the 1949 Act.  Why then should it be regarded as a void registrar’s marriage under s.49?

It is also arguable that reliance on the Muslim ceremony to support a decree of nullity is unfairly discriminatory, since it favours religious people.  Muslims, Jews and Catholics have centuries-old marriage laws and ceremonies.  Irreligious cohabitees, by contrast, have no recognisable marriage ceremonies other than those provided by English law.  If they neglect the legal ceremonies they can only plead common law marriage.  But, as mentioned, the courts will not annul a common law marriage.  An irreligious cohabitee is therefore at a disadvantage to a cohabitee who has undergone a religious ceremony.

(2) The court found that ‘It was understood by both husband and wife that they were embarking on a process which was intended to include a civil ceremony … The failure to complete the marriage process was entirely down to the husband’s refusal … [of] the civil ceremony’.

The ‘marriage process’ so forensically identified by the court is known in common parlance as an engagement.  The husband had promised to marry the wife in a civil ceremony, or had led her to believe that he would do so, and had not kept his promise.

However, it is no longer possible to sue for breach of promise of marriage.  The Law Reform (Miscellaneous Provisions) Act 1970, s.1 bears the unequivocal heading ‘Engagements to Marry not enforceable at Law’.  It provides that ‘An agreement between 2 persons to marry one another shall not … giv[e] rise to legal rights, and no action shall lie … for breach of such an agreement‘.

The husband behaved badly, but the court had no power to revive a jurisdiction that has been expressly abolished by Act of Parliament.  And if the husband was guilty of breach of promise of marriage, this only reinforces the conclusion that there was no attempt to marry in accordance with the Marriage Acts, and therefore no marriage to annul.

Holy Communion: Consecration and Consumption

The English law of Holy Communion may be conveniently studied under 3 headings

(1) Who may administer Holy Communion

(2) to whom and

(3) how, when and where?

However, to understand the relevant law, it is important not to confuse the Communion with the Eucharist.

Who?

Canon B12(1) of the revised canons provides that ‘No person shall consecrate and administer the Holy Sacrament … unless he shall been ordained priest by episcopal ordination’.  This echoes s.10 of the Act of Uniformity 1662 (now repealed).  The words ‘consecrate and administer’ may mean that the priest must not only consecrate the bread and wine, but must also control and preside over the whole Communion Service, including the distribution of the consecrated elements to the communicants.

The Prayer Book (Further Provisions) Measure 1968 permitted authorised laypeople to assist the priest by distributing Holy Communion to communicants.  This lay assistance is now regulated by canon B12(3) and the Admission to Holy Communion Regulations 2015.

Canon B44 allows that a minister of a non-episcopal Church may celebrate Holy Communion in a Church of England church where a local ecumenical partnership has been established ((1)(f)).  This provision makes clear that episcopal ordination is, as Paul Avis described it, merely the ‘house rule’ of the Church of England, a rule of discipline, not religious belief.  Article 19 confirms that one particular ministerial structure is not essential in the Church, just so long as ‘the pure Word of God is preached, and the Sacraments be duly ministered according to Christ’s ordinance’.  However, canon B44 requires that the Anglican faithful be warned of the officiating minister’s lack of episcopal ordination (cf 4(3)(a)(b)).

To Whom?

Baptism alone does not qualify a person to receive Holy Communion.  Reception requires

(1) commitment to Baptism

(2) instruction in the faith and

(3) repentance.

The Book of Common Prayer 1662 required that communicants should be ‘[episcopally] confirmed … or … ready and desirous to be so confirmed’ (rubric).  Confirmation candidates ‘being now come to the years of discretion, and having learned what their godfathers and godmothers promised for them in Baptism … with their own mouth and consent … ratify and confirm the same; and also promise that … they will evermore endeavour themselves faithfully to observe such things …’.

Confirmation is therefore

(1) confirmation by the candidate of his baptismal promises and

(2) the assurance of Divine Grace to support the candidate’s commitment to these promises ‘that he may continue Thine for ever; and daily increase in the Holy Spirit more and more …’.

There is no reference to Holy Communion in the 1662 Confirmation rite itself, only in the rubric.  Confirmation is concerned with Baptism rather than Holy Communion.  The phrase ‘ready and desirous’ makes clear that Confirmation is not essential to Holy Communion.  (In the old days, bishops were often absent from their dioceses, indeed never even visited them, so a candidate might have to wait a long time to be confirmed.)

Canon B27(3), again echoing the 1662 rubrics, provides that ‘The minister shall present none to the bishop [for Confirmation] but such as are come to the years of discretion and can say the Creed, the Lord’s Prayer and the Ten Commandments, and can also render an account of their faith according to the … Catechism’.  Canon B27(2) requires the minister to use his best endeavour to instruct [Confirmation candidates] in the Christian faith and life’.

The modern canon B15A, which now regulates admission to Holy Communion, repeats the 1662 rubric about Confirmation, but allows that other persons may receive Holy Communion too, viz

(1) (b)  baptized persons who are communicant members of other Churches which subscribe to the doctrine of the Holy Trinity, and who are in good standing in their own Church

(c)  any other baptized persons authorized to be admitted under regulations of the General Synod; and

(d)  any baptized person in immediate danger of death.

Thus practising Christians from Churches which lack episcopal ministry and Confirmation may now be admitted to the Anglican Sacrament.  This rule, like canon B44, is consistent with Article 19.  It is also consistent with Article 25, which teaches that Confirmation is not a Sacrament ‘ordained of Christ our Lord in the Gospel’.  ‘Good standing’ is not defined, but suggests an assumption that such persons will have received sufficient instruction in their own Churches.

The Admission of Baptised Children to Holy Communion Regulations 2006 were made under the authority of Canon B15A(1)(c) above.  Young children who are not confirmed, or even ready to be confirmed, may now receive Holy Communion.  However, this is subject to the bishop’s discretion.  Regulation 5 provides that ‘the bishop must first satisfy himself … that the [child’s] parish … has made adequate provision for preparation and continuing nurture in the Christian life and will encourage any child admitted to Holy Communion … to be confirmed at the appropriate time’.  So commitment and instruction are still required.

Although canon B15A may have lowered the bar to Holy Communion somewhat, canon B15(2) requires that ‘The minister shall teach the people … that they come to this Holy Sacrament with such preparation as is required by the Book of Common Prayer’.

The 1662 Prayer Book does indeed insist on careful preparation to receive the Sacrament.  Prospective communicants are sternly exhorted ‘to consider the dignity of that holy mystery, and the great peril of the unworthy receiving thereof; and so to search and examine your own consciences … and that not lightly …’.

The minister must also invite a penitent prospective communicant ‘who … cannot quiet his own conscience … [to] come to me, or to some other … minister … and open his grief; that … he may receive the benefit of absolution …’.  Private confession and absolution are therefore at the option of the penitent, a concession to human weakness, not an obligation.

The Prayer Book rubric indicates that the invitation in the Communion Service to ‘make your humble confession to Almighty God, meekly kneeling upon your knees’ is specifically addressed ‘to them that come to receive the Holy Communion’, not to any other persons present.

Cathedral clergy are expected to set an example to everybody else, both fellow clergy and laypeople, by receiving the Sacrament ‘every Sunday at the least’ (canon B13(2)).  The lay faithful are expected to receive ‘regularly, and especially at … Christmas, Easter and Whitsun’ (canon B15(1)).  This rule follows the canons of 1603, which enjoined reception of the Sacrament ‘oftentimes’ (canon 21) and ‘at least thrice in a year’ (canon 23).

The bishop has power (virtually never used) to order the exclusion of ‘notorious offenders’ from Holy Communion (canon B16).  This power is discussed in a separate post, filed below.

How, When and Where?

The provision of bread and wine for Holy Communion is governed by canon B17.  The bread may be leavened or unleavened.  The vestments to be worn are prescribed by canon B8(2) and (3).  The ‘table of the Lord’ (i.e the altar) must be covered with ‘a fair white linen cloth’ (canon F2(2)).  The provision and cleaning of communion vessels and linen are dealt with by canons F3 and F4 respectively.

All incumbents, or ‘priests having a cure of souls’, must ‘celebrate, or cause to be celebrated, the Holy Communion on all Sundays and other greater Feast Days and on Ash Wednesday’ (canon C24(2)).  Canon B14 confirms that Holy Communion should be celebrated ‘at least’ on those days in parish churches.  However, canon B14A permits some variation of this general rule.  In cathedrals, Holy Communion should be celebrated ‘as often as may be convenient’ (canon B13(1)), which is usually every day.

Holy Communion must normally be administered in a consecrated or licensed place of worship.  It can be administered in any place where there is a sick person who cannot go to church.  Other venues require the bishop’s permission (canon B40).  Holy Communion may be administered in a private chapel, but ‘seldom upon Sundays and other greater Feast Days, so that the residents … may resort to their parish church and there attend divine service’ (canon B41).  This rule stresses the communal character of the Sacrament.

The Eucharist and the Communion

This survey indicates that the sole purpose of Holy Communion in English law is the reception of the consecrated bread and wine by the  communicants.  The terminology used (Communion, Lord’s Supper) also carries this implication.  The Sacrament is never described as the Eucharist.

In Anglican parlance the words ‘Eucharist’ and ‘Communion’ are often used interchangeably, but they are distinct liturgical rites. The word Eucharist means Thanksgiving.  The Eucharistic Prayer is the prayer of thanksgiving which includes the Words of Institution by which the bread and wine are consecrated.  The Communion rite comes later.  Thus, in English law, the purpose of the Eucharist is the Communion which follows it.

Canon 21 of 1603 suggests that some contemporary clergy failed to appreciate the connection between Eucharist and Communion.  It ordered that ‘no bread or wine … shall be used; but first the Words of Institution shall be rehearsed, when the said bread and wine be present upon the Communion-table’.  Evidently the bread and wine were sometimes administered without being consecrated first.

The modern canon B12 affirms that Eucharist and Communion, though distinct, are inseparable, by requiring the officiating priest always to receive Holy Communion himself.

The English and Roman Catholic laws concerning the administration of Holy Communion are on similar lines (though they are far from  identical).  However, there is virtually no English law concerning the Eucharist.  This is the great difference between the two laws.  The Roman Catholic law concerning Holy Communion is but a part of its law concerning the Eucharist: see the Code of Canon Law 1983, canons 897 to 958, entitled ‘The Most Holy Eucharist’.  In English law, it is the other way around.  The law concerning the Eucharist (such as it is) is part of the law of Holy Communion.

In the Church of England, canon B6 enjoins ‘attendance at Divine Service‘ every Sunday, but not specifically attendance at Holy Communion.  Attendance at Morning or Evening Prayer will do just as well.  For a long time in England, weekly attendance at Holy Communion was impossible for most people, because the Sacrament was only celebrated once a month (‘Sacrament Sunday’).

In the Roman Catholic Church, by contrast, the faithful are obliged to attend the Eucharist (Mass) every Sunday and on other important Holy Days (1983 Code, canon 1247).  Attendance at another act of worship will not fulfill this obligation.  However, the obligation to receive Holy Communion is limited to just once a year (canon 920.1).  The severe Eucharistic fast from midnight, without even a glass of water, which was only modified as recently as the 1950s, made frequent communion difficult.  (Sometimes Catholics would receive Communion at an early service before attending the Eucharist.)

The 1662 rubrics made clear that ‘there shall be no celebration of the Lord’s Supper, except there be convenient number to communicate with the priest … 4 communicants (or 3 at the least)’ are the absolute minimum required.

This requirement does not appear in the modern canons of the Church of England.  However, canon C24(2) makes clear that the duty to ‘celebrate, or cause to be celebrated’ the Holy Communion is owed to parishioner-communicants.  Priests without a cure of souls have no duty to celebrate the Eucharist / Holy Communion, nor indeed any right to do so.

This is another difference from the Roman Catholic law, which states that ‘priests [i.e all priests] are … earnestly invited to offer the Eucharistic Sacrifice daily …’ (1983 Code, canon 276(1)).

The English legal emphasis on reception of Holy Communion has its basis in religious belief, of course.  The 1662 Catechism teaches that ‘the Lord hath commanded [the Sacrament] to be received‘.  Hence the emphasis on relatively frequent Communion.  Also that ‘The Body and Blood of Christ … are verily and indeed taken and received by the faithful in the Lord’s Supper’.

Article 25 affirms that ‘in such only as worthily receive the [Sacraments] they have a whole effect or operation’.  Article 28 draws the Catechism and Article 25 together: ‘to such as rightly, worthily, and with faith, receive the same, the Bread … is a partaking of the Body of Christ; and likewise the Cup … is a partaking of the Blood of Christ’.  It adds that ‘The Body of Christ is … eaten only after an heavenly and spiritual manner.  And the mean whereby the Body of Christ is received and eaten in the Supper is faith’.

2 actions are therefore required for a communicant to receive the Body and Blood of Christ

(1) consecration of the bread and wine and

(2) worthy and faithful consumption thereof

The teaching in Article 29 is critical: ‘The wicked, and such as be void of a lively faith, although they do carnally and visibly press with their teeth … the Sacrament of the Body and Blood of Christ: yet in no wise are they partakers of Christ: but rather, to their condemnation, do eat and drink the sign or Sacrament of so great a thing’.

This makes clear that the effect of consecration is that the bread and wine have ceased to be ordinary food.  They are now a sign and Sacrament of the Body and Blood of Christ.  Any irreverent use of them will incur Divine condemnation.  (Hence the great importance of instruction and repentance prior to Communion.)  However, they are not the Body and Blood of Christ per se.  

This in turn means that, while irreverent use incurs condemnation, it is also wrong to venerate or worship the consecrated bread and wine, since they are a mere sign and Sacrament.  The communicant receives the Body and Blood of Christ only by worthy consumption.

This teaching on the Eucharist is in contrast to that of the Roman Catholic Church, which holds that

(1) consecration alone does constitute the bread and wine as the Body and Blood of Christ.  ‘In [the Eucharist] Christ the Lord, through the ministry of the priest … [is] substantially present under the appearance of bread and wine’ (1983 Code, canon 899.1).

(2) reception of communion is not the only purpose of consecration.  Canon 901 affirms that ‘A priest is entitled to offer Mass for anyone, living or dead’.  Indeed bishops and pastors must apply the Eucharist pro populo, i.e for the people of their dioceses and parishes, every Sunday and Holy Day of obligation (canons 388(1) and 534(1)).

The 39 Articles oppose 2 purposes of the Eucharist affirmed by the Roman Catholic Church

(1) application of the Eucharist for a metaphysical purpose, known as an intention.  Article 31 strongly condemns ‘Masses in the which it was commonly said that the Priest did offer Christ for the quick and the dead, to have remission of pain or guilt’ as ‘blasphemous fables and dangerous deceits’.

(2) worship of the consecrated elements.  Article 28 provides that ‘the Sacrament of the Lord’s Supper was not by Christ’s ordinance reserved, carried about, lifted up or worshipped’.  Article 25 observes that ‘The Sacraments were not ordained of Christ to be gazed upon, or to be carried about, but that we should duly use them’.

It will be noted that the condemnation of (1) is much stronger than (2) in the Articles.  Purported applications of the Eucharist other than for Communion are dangerous and blasphemous.  However, the Prayer Book rubric warns that ‘the sacramental [i.e consecrated] bread and wine remain still in their very natural substances, and therefore may not be adored (for that were idolatry …)’.

The ceremonial of modern Communion Services is very similar to that of the modern Catholic Mass.  This may obscure the difference of Eucharistic action.  Canon B8 permits the ‘customary vestments’, i.e the Catholic Eucharistic vestments, but also makes clear that ‘the vesture worn by the minister … is not to be understood as implying any doctrines other than those now contained in the [historic] formularies’.

Intention

In the case of Bourne v Keane (1919) Appeal Cases 815, Lord Chancellor Birkenhead suggested that the application of the Eucharist for a metaphysical intention is the essential difference between the Catholic Mass and the Communion Service (cf p.837).  (Nothing to do with ‘smells and bells’ ritualism.)  Bl John Henry Newman (a Catholic convert, of course) suggested that ‘the doctrine of intention … viewed in all its parts, constitute[s] a new religion’ (Loss and Gain, 1848).

The belief that the Eucharist can be applied for a metaphysical purpose derives in turn from the belief that the Eucharist is a sacrifice (not just a sacrament) ‘in which the Sacrifice of the Cross is for ever perpetuated’ (1983 Code, canon 897).  This is discussed in another post ‘In Persona Christi: Eucharistic Sacrifices’, filed below.

As every schoolboy knows, the Protestant reformers complained (with some justice no doubt) that the metaphysical ministrations of the mediaeval Church, including Mass intentions, were exploited for material gain.  (The sale of indulgences etc.)

Modern Roman Catholic law addresses this concern by seeking to prevent ‘even the semblance of trafficking or trading’ in Eucharistic applications / intentions.  Multiple Masses are not allowed (canons 905, 953).  A priest should not celebrate the Eucharist without a congregation of at least 1 person (an altar-server), though solitary celebration is permitted for ‘a good and reasonable cause’.

Nevertheless the payment of a stipend or offering for a Eucharistic intention is not only lawful, but positively encouraged.  Such offerings ‘contribute to the good of the Church’ (canon 946).  ‘Any priest … may accept an offering to apply the Mass for a specific intention’ (canon 945(1)).  He may not demand a larger sum than that prescribed by local law, but may still accept ‘an offering voluntarily made’, even if it exceeds the local rate (canon 952(1)).  Intentions, and the offerings therefor, must be recorded (canons 955, 958).  The bishop must see to it that all Mass obligations are fulfilled (canon 957).

In Bourne v Keane, the House of Lords ecumenically held (by a majority) that a fund for the saying of Roman Catholic Masses was a valid and lawful trust in English law.  The Lord Chancellor traced the dichotomy between the mediaeval Mass and the reformed Communion Service to the ‘Protestant’ Prayer Book of 1552.  The first, ‘Catholic’ Prayer Book of 1549 did not make a complete break between the two, because ‘the name Mass was retained [in that Book]’ (p.836).

The 1552 Book was unambiguous, however.  There could be ‘no doubt that this [1552] service was a Communion Service pure and simple, and that Mass had disappeared … from the Book of Common Prayer’ (p.837).

The Elizabethan Act of Uniformity 1559 completed the work of 1552.  ‘[Its] effect was to render the celebration of Mass illegal’.  By a later Elizabethan statute ‘the saying or singing of Masses was expressly declared to be a criminal offence’ (p.838).  (A crime punished by death in some cases.)  The result of the 16th century legislation, of course, was that Mass trusts could not be lawful, because ‘such trusts were pernicious and dangerous to the state’ (p.846).

Mass was not decriminalised till the first Roman Catholic Relief Act 1778.  Then at last the Relief Act of 1829 was passed, as a result of which ‘the Roman Catholic religion was recognised as one which could be practised without any penal consequences or breach of the law’ (p.852).  Thus the law forbidding Mass trusts ‘perished as a consequence of [the Relief Acts]’ (p.857).

In the modern Church of England, ‘catholic’ vicars apply, or purport to apply, the Eucharist for particular intentions, and publicise this in parish newsletters etc, notwithstanding Article 31.  It could be argued that this constitutes a ‘reserved’ offence against doctrine under s.14(1) of the Ecclesiastical Jurisdiction Measure 1963: ‘maintaining doctrines repugnant to the 39 Articles’ (Halsbury’s Laws, vol 14, para 1354).

However, no prosecution for any reserved offence has ever been brought since 1963.  Mass intentions are evidently uncontroversial nowadays, no longer considered blasphemous and dangerous.

It would be a different case if a vicar considered the authorised Eucharistic Prayers inadequate vehicles for his intentions, and used a Roman Catholic prayer instead.  This would constitute misconduct rather than a doctrinal offence, cognisable under the Clergy Discipline Measure 2003, ‘doing [an] act in contravention of the laws ecclesiastical’ (s.8(1)(a)).  (It would also infringe the Catholic Church’s copyright).  Canon B1(2) is clear that ‘Every minister shall use only the forms of service authorised …’.  All clergy are required to make a Declaration ‘[to] use only the forms of service which are authorised or allowed by canon’ (canon C15.1(1)).  But again, there is no legally reported case of a vicar being disciplined for using the Roman rite.

A vicar who accepted or solicited payments for his intentions should also be liable to discipline, since he has no right to such payments, and his intentions are not recognised by law.  Any trust fund similar to that in Bourne v Keane, but for Anglican Eucharistic intentions instead, would arguably fail for the same reasons.

Reservation

It is argued that Article 28 need not preclude custody of the Sacrament where there is an unavoidable delay between consecration and communion, for example to bring the Sacrament to the sick, or to a congregation which lacks a priest.  Christ did not ordain the practice of reservation, but neither did He positively forbid it.  Nor, on its plain wording, does Article 28.  As discussed earlier, the religious difficulty is not reservation per se, but the danger that it may encourage ‘idolatrous’ adoration or worship of the Sacrament.

It is true, however, that the Book of Common Prayer allows no scope for reservation.  The post-Communion rubric provides that leftover consecrated elements ‘shall not be carried out of the church, but the priest and such other of the communicants as he shall then call unto him shall, immediately after the Blessing, reverently eat and drink the same’.

It has been suggested that this rubric was aimed at preventing, not superstitious veneration, but profane consumption, i.e as part of the vicar’s Sunday lunch.  The 1552 Prayer Book had sacrilegiously provided that ‘if any of the bread or wine remain [whether consecrated or unconsecrated], the curate [the vicar] shall have it to his own use’.  (See Moore’s Introduction to English Canon Law, ed T Briden, 4th ed 2013, p.93).  But the 1662 rubric still provides no authority for reservation.

The 1662 Prayer Book provides a special service for ‘Communion of the Sick’, but this clearly requires the priest to consecrate the bread and wine ‘[at] a convenient place in the sick man’s house’, and to receive the Sacrament himself.  It does not authorise him to bring pre-consecrated bread and wine.

In 1899 the 2 Archbishops jointly opined that reservation was unlawful, even for sick Communion.  The combination of

(1) Article 28

(2) the Prayer Book’s requirement of immediate consumption and

(3) lack of any evidence that reservation was practised after the Reformation

all pointed to this conclusion.

The Revised Prayer Book of 1927 proposed that, ‘to secure that any sick person in his last hour may not lack the benefit of the … Sacrament, … the priest, if the Bishop shall so permit, may … reserve so much of the consecrated bread and wine as is needed for the purpose’.  The 1927 rubrics were careful to make clear that the Sacrament ‘shall be reserved only for the Communion of the Sick … and … for no other purpose whatever’, i.e not for adoration.

A supporter of the Revised Prayer Book made the reasonable point that ‘at the present time the whole [Communion] service has to be read [to the sick person] and that the priest has to communicate himself.  No one can think it right that a priest should be forced to communicate 30 or 40 times a week’ (House of Commons Official Record, volume 218, column 1222).

However, Parliament was unmoved by the difficulty and rejected the Revised Book.  Protestant prejudice against reservation was apparently a major cause of this.

For their part, the ecclesiastical courts held that a tabernacle (a receptacle in which the Sacrament is reserved) was forbidden by the famous Ornaments Rubric.  In St. Mary, Tyne Dock (1954) Probate 369, the Chancellor correctly held that ‘If [a tabernacle] is not [authorised by the Ornaments Rubric] then the bishop’s sanction cannot save it, for the consent of the bishop cannot render an illegal church ornament legal’ (p.371).

In Lapford Church (1954) Probate 416, the Chancellor suggested that the Ornaments Rubric could be circumnavigated by reserving the Sacrament in an aumbry (a receptacle discreetly cut into the church wall, less showy than a tabernacle, and less suggestive of adoration).  He explained that ‘for a long time now, an aumbry has been treated as not constituting an ornament at all, but as part of the furnishings of the church’, and therefore permissible.

The Lapford case actually concerned the introduction of a tabernacle, not an aumbry, so the Chancellor refused a faculty.  However, the Court of the Arches granted the faculty on appeal, confidently asserting that its ratio decidendi was ‘common sense’: (1955) Probate 205, at p.214.  The Court accepted that ‘All the deviations and additions contained in the [Revised Prayer] Book remained, strictly speaking, illegal’ (p.213), but also observed, no doubt correctly, that ‘the [1662] law as it stood was evidently too rigid … the power of enforcing compliance with the law rested with the bishops’ (p.213-14).

So, if the bishops declined to enforce the law on their clergy on account of its rigidity, and indeed positively approved unlawful practices, then this was nothing to do with the ecclesiastical courts.  On the contrary

‘The duty of a diocesan chancellor … is ancillary.  He is not responsible for reservation: but if he finds that reservation is in fact practised with the sanction of the bishop … it is his duty to see that the provision [illegally] made for keeping the consecrated bread and wine is both safe and seemly’ (p.214).

On this view, the protection of the illegally reserved Sacrament is more important than adhering to the law.  Casuistry rather than common sense.

The modern canon regulating sick Communion, canon B37(2), is ambiguous.  It provides that, if a sick or housebound person ‘is desirous of receiving the most comfortable Sacrament … the priest … shall … visit him, and … reverently minister the same’.  This wording, of course, allows scope for holding an entire Communion Service where the sick person is, or administering pre-consecrated bread and wine.

The 1662 regime of public worship was finally brought to an end by the Worship and Doctrine Measure 1974.  The Ornaments Rubric and the rubric requiring immediate consumption ceased to have the force of law.  Meanwhile reservation has ceased to be controversial, and now seems to be practised universally.  It is impossible to imagine Parliament objecting to it today.  And with the 1662 regime gone, the General Synod can legislate by canon, which does not require Parliamentary approval.

Yet reservation is still unregulated by ecclesiastical law.  No Measure or canon provides for it.  It remains a matter for the discretion of the ecclesiastical courts and bishops on a case by case basis.

There are a number of possible explanations for this.  Perhaps there is concern that any legislative recognition of reservation would contradict the Church’s doctrine, or appear to do so.  The practice should therefore be managed on an informal, unwritten basis (like remarriage after divorce).

There may be a mistaken belief that the Ornaments Rubric still is part of the law, notwithstanding the Worship and Doctrine Measure.  In St Thomas, Pennywell (1995) Family 30, Chancellor Bursell seemed to labour under this misapprehension.  He granted a faculty for a ‘Sacrament house’, not on the basis that the Ornaments Rubric was no longer law, but on the basis that the law no longer interpreted the Rubric with its previous rigour.  (This case is discussed in ‘Liturgy and the Faculty Jurisdiction’, filed below, under category ‘Liturgy and the Law’).

Or maybe the Church is simply content leave the practice of reservation to the ecclesiastical courts.  Certainly this does not seem to have caused any significant practical difficulty since 1974.  However, it is arguable that care and custody of ‘the sign or Sacrament of so great a thing’ demand formal legal recognition and regulation.

The Married State

Daniel Hill, ‘The State and Marriage: Cut the Connection‘ (Law and Religion UK, blogpost, 21st June 2018)

The title of this polemical blogpost is admirably succinct and self-explanatory.  The learned author does not have a good word to say about the state’s involvement in marriage.  He makes 3 specific criticisms:

(1) ‘the state is intruding itself as a third party into our marriages’

(2) state involvement in marriage discriminates against couples who ‘have chosen not to go through a legally binding ceremony of marriage’.

(3) last, but not least, the bureaucratic character of state involvement in marriage is ‘romance-killing’.

Criticisms (2) and (3) are unpersuasive.  The author writes movingly about an unmarried couple of his acquaintance whose ‘commitment to each other … does not seem to me to be less than the commitment … of many legally married couples’.  Yet their lack of legal marriage means that ‘they are not eligible for [marriage-related] tax breaks … so, what justifies the state in discriminating against them?’

A possible answer to this question is that the state can hardly be expected to appreciate the couple’s ‘commitment’ to each other (no matter how obvious this may be to family and friends) if the couple neglect or refuse to notify it to the state, by means of a legal marriage.

As for ‘romance-killing’, it is arguable that the legal formalities of marriage are a salutary reminder that marriage is rather more than mere romantic feelings.  The learned author himself describes marriage as ‘a form of shared life’.  It is not merely a shared feeling.

Criticism (1) may have some force, though perhaps not what the author intended.  It is true that a man and a woman marry each other.  They are not married by the state.

The Book of Common Prayer teaches that ‘holy matrimony … is an honourable estate, instituted of God in the time of man’s innocency’, long before the state existed.  Marriage is a God-given status, not a status conferred by mere human law.  It has been argued that the modern state has undermined or corrupted the Divine status of marriage by sanctioning the dissolution of marriages (‘Those whom God hath joined together, let no man put asunder’), and, more recently, by permitting same-sex ‘marriage’.

In the case of Dalrymple v Dalrymple (1811) 161 English Reports 665, Sir William Scott observed that ‘Marriage in its origin is a contract of natural law … It is the parent, not the child, of civil society’ (p.669).  He also observed of ancient Jewish law that ‘Amidst the manifold ritual provisions made by [Moses] there is no ceremony prescribed for the celebration of marriage’.

Indeed for many centuries in England a couple might validly marry without an official ceremony (a ‘common law marriage’).  Common law marriage continued to be valid until Lord Hardwicke’s Marriage Act 1753 provided that no marriage would be recognised at law without an official ceremony (in the parish church).

The 1753 Act was not uncontroversial at the time.  It meant that Roman Catholics and Protestant non-conformists had to submit to the Anglican marriage rite.  Poor people could ill afford the fees.  Grand families may have found it distasteful to marry amidst the hoi polloi of the parish, rather than in the seclusion of private chapels.  Many freedom-loving Englishmen took the view that it was a man’s own business where and how he got married.  Horace Walpole wrote sarcastically to a friend ‘It is well that you are [already] married’, and complained that the 1753 Act was ‘impudent’ and contained ‘as many impediments and formalities … as a treaty of peace’ (Cobbetts Parliamentary History, volume 15, column 32).

Although an official ceremony only became essential in 1753, the state (or the Church, which is the ecclesiastical state) has always exercised jurisdiction over the marriage contract, whether or not the contract was made in an official ceremony.

The learned author is rather vague about what marriage actually is.  He describes it as a ‘commitment’, a ‘personal and intimate relationship’ and ‘a form of shared life’, but not as a contract or status.  However, there is nothing vague about his proposal.  Not only would there be no officially recognised ceremony, but the state would lose all jurisdiction over the constitution, validity and subsistence of the commitment / relationship / shared life that is marriage.  Marriage would become a contract without a jurisdiction, a status unknown to the law.

So who would decide the constitution, validity and subsistence of a marriage, if the state could not?  The parties themselves, presumably.  Yet why should the parties be trusted to respect the God-given status of marriage, any more than the state?  If marriage depends on nothing more than the present wishes and feelings of the parties, it will soon lose the character of both a status and a contract.  It would become a mere sociological phenomenon, or an academic subject for students of natural law.

There is also the likelihood that, absent state authority, marriage questions would be decided, not by the parties jointly, but by the stronger party.  The case of A v L (2010) 2 Family Law Reports 1418 refers to the ability of a husband under Muslim (Sharia) law to divorce his wife by unilateral decision.  The Bible, of course, relates that ‘Moses command[ed] that a man give his wife a certificate of divorce and send her away … because your hearts were hard‘ (Matthew 19, 7-8).

We trust that the learned author is not hard-hearted in seeking to ‘cut the connection’ between marriage and the state.  But his marriage proposal, though thought-provoking, is singularly ill-considered, and should be turned down.

The Future Governance of Cathedrals

Cathedrals Working Group Draft Report 2018

A cathedral is both

(1) the church, or ‘seat’, of the bishop (hence its title) and

(2) the parish church, or ‘mother church’, of the diocese.

Yet the cathedral is constitutionally separate from both the bishop and the diocese.

This anomaly has persisted from the middle ages to the present day.  An erudite Church of England report Heritage and Renewal (1994) observed that ‘The fate of the English cathedral was to remain unreformed [at the Reformation]’ (p.191).  There were statutory reforms of cathedral governance in the 19th and 20th centuries, of which the Cathedrals Measure 1999 is the most recent.  However, these reforms have not ended the cathedral’s independence from the wider Church.

The survival of the peculiar status of cathedrals down the centuries has encouraged its general acceptance.  Hardly anybody questions it nowadays.  It is supported by vested interests.  Heritage and Renewal suggested that ‘cathedral dignitaries … found that they did not, in all truth, have much to do’ (p.196).  The daily work of a cathedral is mostly done by lay staff and volunteers.  Secure of tenure, and free of the indignities of parish work and accountability to any external authority, deans and canons are not likely to favour radical reform of their comfortable way of life.  Nor are upwardly mobile vicars with ambitions to succeed them.

And the status quo probably suits bishops too, on the whole.  Ancient privileges may be frustrating for the zealous reformer.  On the other hand, whenever the peace of the cathedral close is disturbed by a scandal or controversy, the cathedral’s independent status means that the bishop will generally be able to avoid blame.

But scandals and controversies continue to occur, alas.  These demand effective oversight of cathedral governance.

The Cathedrals Measure 1999 (nearly 20 years old now) prescribes a constitutional structure based on the 3 classic ‘powers’ of government.  The cathedral council created by the Measure is the legislative authority of the cathedral, with power to revise its constitution and statutes (s.28), and to scrutinise the work of the chapter, as Parliament scrutinises government (s.3(6) and (7)).  The chapter is the cathedral’s executive.  The bishop holds the ancient quasi-judicial office of visitor, with power to ‘hear and determine any question as to the construction of the constitution and statutes’, and to ‘give such directions … as will … better serve the due observance of the constitution and statutes’ (s.6(3),(4) and (6)).

The draft report cited above suggests that the 1999 separation of powers has failed.  There is still ‘a lack of effective independent scrutiny’ (para 122).  In particular, the report criticises ‘the lack of teeth given to [cathedral] councils’.

However, the report’s treatment of the constitutional position of cathedrals is very confused.  Perhaps this is only to be expected, for the reasons discussed earlier.  The report declares movingly that ‘the diocese and the cathedral are part of one body, working together for the proclamation of the Kingdom’ (para 103), and that the cathedral is ‘an essential support’ to the ministry of the bishop.  Yet it does not propose the constitutional integration of the cathedral and the diocese, so as to give legal effect to this supposed corporate identity.

Instead it merely observes that ‘cathedrals and dioceses have committed to work together more closely in recent years … to align strategies’ (para 104), and that ‘In a number of cathedrals, the dean and the residentiary canons take on significant structural roles in the diocese’ (para 105).  And so to the bland conclusion that ‘We hope this will continue and develop further’.  If it does, it will be on a spontaneous, informal basis only.

Although it vaguely perceives the cathedral’s connection to the bishop and the diocese, the reforms proposed by the report are predicated on a different dual role of cathedrals as

(1) places of prayer and worship and

(2) places of (secular) national heritage and tourist destinations (cf para 69).

Cathedrals are viewed as a discrete ‘sector’ of the national Church (‘the cathedral sector’, cf para 168), rather than as the centre of the Church within their dioceses.

If anything, the report’s proposals would result in cathedrals becoming even more remote from their bishops and dioceses than they are at present.  The report considers that cathedrals should be accountable to national institutions rather than to their bishops (para 108).

Thus it recommends that the bishop should continue as ex officio visitor of the cathedral (para 147), but suggests that ‘the visitor would remain as a formal legal enforcement and dispute resolution mechanism but … not … as the normal means of reviewing and bringing about improvements in financial or other governance matters’ (para 159).  The visitor’s jurisdiction should be exercised by an ecclesiastical judge, not by the bishop personally.

Instead of an ineffectual separation of the 3 powers of government, the report argues for a ‘clear separation of governance and management‘ (para 132), which functions have become ‘blurred and conflated’ (para 122).  Cathedrals should instead be governed like charities, with ‘a trustee body … overseeing … an executive team‘ (para 121).

However, the report acknowledges a difficulty with applying the constitution of a secular charity to a cathedral.  If the cathedral and its clergy were subject to secular trustees, this would effectively secularise the cathedral: ‘for governors to direct … a cathedral’s worship would be an inappropriate crossing of boundaries’ (para 129).

So the report proposes to ‘retain the chapter as the governing body’ (para 130), instead of appointing another governing body over the chapter.  Moreover, the dean will continue to chair the chapter.  The offices of chairman and ‘CEO’ of the chapter will therefore continue to be combined.  In charities, these offices are generally separate.

At first glance, this proposal seems decidedly lame, a mere restoration of the status quo ante the 1999 Measure.  How does it effect a separation of governance and management?  How can the dean and chapter be accountable to themselves?  They will retain the same privileged, unaccountable position they have held since the middle ages.

However, the report is confident that things will be different this time.  It promises ‘some significant changes to the current structures’ (para 131).

Cathedral chapters were reformed by the 1999 Measure to include lay canons as well as residentiary clergy (s.4(2)(b)).  The chapter was also required to appoint a finance committee ‘having the function of advising … [on] financial and investment management and for the membership to include persons who have experience and expertise in that field’ (s.9(1)(h)).

The report therefore proposes further reform of the chapter, along the lines already provided in the 1999 Measure.  Not only will there be lay, non-residentiary canons in the chapter, but they will form the majority of chapter members (para 136), and so be able to outvote the dean and the residentiary canons.  The lay canons will also include ‘experts’ in finance, and risk and property management.  The finance committee will have enhanced powers of scrutiny, and a lay chairman (para 144).

The day to day management of the cathedral will be entrusted to a Senior Executive Team of cathedral officeholders, headed by the dean.  The report argues that ‘The corollary to strengthening chapter scrutiny and accountability is that deans need to be empowered to lead’ (para 182).

The dean’s position in the chapter will be weakened by the presence of a majority of lay ‘experts’, but his managerial position in the cathedral will be strengthened: ‘it [is] essential for the dean to be able to oversee and direct the work of the residentiary canons’ (para 197).

The appointment of residentiary canons (i.e clergy) should therefore be subject to the dean’s approval.  (Canons are currently appointed by the bishop or the Crown, not the dean.)  Residentiary canons ‘should report to the dean as their line manager’ (para 160), ‘deriving their authority from the dean’ (para 198).  The dean will be responsible for their ‘ministerial development review’ or work performance appraisal (para 194).  A far cry indeed from Dean Inge’s amusing comparison of the relationship between dean and canons to that of a mouse watched by 4 cats.

If these reforms are implemented the chapter is unlikely to be very collegial in character, despite the report’s affirmation of ‘the collegial and residentiary role of the clergy’ (para 129).  Collegiality does not sit comfortably with line management.  Also the chapter will be divided between 2 very different groups of canons.  A forum rather than a college.

But collegiality is not an end in itself, of course.  Loss of collegiality is a price worth paying for increased business efficiency, which in turn requires effective line management.  The report noted that ‘the financial management of cathedrals is at the core of our terms of reference’ (para 222).

The chapter’s status as governing body of the cathedral is retained out of respect for the ecclesiastical character of cathedrals.  But chapters will be accountable to the Charity Commission, a secular authority (para 168).  The report points out that most other ecclesiastical bodies are already subject to the jurisdiction of the Charity Commission.

It also criticises the 1999 Measure for ‘the absence of any independent body to act as a [cathedral] regulator’ (para 122), and argues that ‘There is a need for increased clarity about the relationship of national Church institutions with cathedrals’ (para 107).  It recommends a 5 yearly ‘assurance review’, i.e audit, of every cathedral, to be commissioned by the bishop but carried out by persons ‘drawn from the finance and operations functions of other cathedrals and the national Church’ (para 158).

All this accords with the report’s promotion of a nationwide ‘cathedral sector’.  However, there may be a difficulty here.  The Church Commissioners (who are a ‘national Church institution’, of course) ‘have made clear … that they would prefer not to have a regulatory role with regards to the cathedral sector’ (para 167).  Perhaps the national Church is not very keen to assume the task of policing its cathedrals!

The mediaeval anomaly of cathedral independence (‘A Constitutional Monstrosity’), and the Cathedrals Measure 1999, are discussed further in posts filed below under this category.

The Royal Supremacy: Governor or Head?

Halsbury’s Laws of England (the 5th edition) suggests apparent confusion about the Monarch’s precise ecclesiastical title.

Volume 20 of Halsbury asserts that ‘The Monarch … is Supreme Governor of the Church of England’ (para 16), and cites volumes 29 and 34 as authority.  Volume 29 states that ‘the Monarch is the only Supreme Head on Earth, under God, of the Church of England’ (para 63).  Volume 34, which treats of ecclesiastical law, states that ‘the Sovereign is Supreme Ordinary and Visitor …’ (para 60).

Everyone knows that the title Supreme Head was claimed by King Henry VIII, during his break with Rome in the 1530s.  The claim appears in the Act of Supremacy 1534.  However, as volume 29 of Halsbury makes clear, the Monarch is Supreme Head by common law, as well as by statute: ‘the statutory provisions regarding the supremacy of the Monarch in spiritual matters [at the Reformation] were declaratory of common law’ (para 63n).

Thus Henry VIII was not the first King of England to be Supreme Head of the Church.  The Monarch has always been Supreme Head of the Church by common law (which is itself derived from Divine law).  As the 1534 Act says, ‘the King … is [already] and ought to be Supreme Head … yet nevertheless for corroboration and confirmation thereof … Be it enacted … that the King … shall be taken, accepted and reputed the only Supreme Head of the Church …’ (s.1).

Whatever its relationship to the true historical facts, this remains the constitutional doctrine to the present day.  The Monarch’s ecclesiastical title is an ancient common law title, not a statutory title dating from the 16th century.  The Pope’s supremacy was not abolished at the Reformation, because it had never existed in the first place.  Any papal claim was merely an illegal usurpation of the Monarch’s title.

The title Supreme Governor appeared in the Act of Supremacy 1558, the first Act of Queen Elizabeth I, Henry VIII’s daughter.  She is described in the 1558 Act as Supreme Governor of the Realm rather than the Church, though supreme ‘as well in all spiritual or ecclesiastical things or causes, as temporal’ (s.19).

The Elizabethan title was more modest and tactful than the Henrician one.  The ‘headship’ of women was less fashionable in the 16th century than it is today.  Headship could also imply that the Monarch exercised some priestly function in the Church.  The 1558 Act made clear that the Monarch’s headship is limited to the power of governance.  Her lesser known ecclesiastical title ‘Supreme Ordinary’ also makes this point.

Article 37 confirmed the constitutional position ‘Where we attribute to the King’s Majesty the chief government … we give not to our Princes the ministering either of God’s Word or of the Sacraments …’.  This Elizabethan clarification of the royal supremacy has been universally accepted.  Nobody now suggests that the Monarch is a priest.  When he republished the 39 Articles in 1628, King Charles I referred to ‘Our just title … Supreme Governour of the Church …’ (Royal Declaration).

However, the 1558 Act merely clarified the earlier law concerning the royal supremacy.  It did not abolish or replace it.  The Elizabethan title was an alternative to the Henrician title, rather than a substitute for it.  In the Elizabethan case of Cawdrey (1591) 77 English Reports 1, Sir Edward Coke held that ‘By the ancient laws of this Realm … England is an absolute empire and monarchy consisting of one Head, which is the King, and of a body politic … which the law divideth into … the clergy and the laity, both of them next and immediately under God, subject and obedient to the Head’ (p.10).

Their clarifying work done, the 1558 references to the Monarch’s title have now been repealed.  The common law remains in force, of course.  Perhaps this means that the Monarch is now correctly described as Supreme Head, and not as Supreme Governor.  However, it is argued that the two titles (and the third – ‘Ordinary’) are really one and the same, and may be used interchangeably.

The Solemnization of Matrimony: Duties and Deposits

It was reported in the news media last week that a vicar has taken to charging a deposit of £100 for weddings in his church.  He then forfeits the deposit if the bride arrives late for the ceremony.  (This is, of course, a well known bridal prerogative, but it seems that some brides have been abusing the prerogative by as much as 20 or 25 minutes.)

The vicar’s exasperation at such gross unpunctuality may be understandable.  But is he legally entitled to charge, and forfeit, a deposit in these circumstances?

It is universally assumed that parishioners have a common law right to marry in their parish church.  However, the incumbent and the Church authorities have no general common law right to charge a fee (not even a refundable deposit) for publication of the banns or solemnisation.  A contractual fee for performing the ceremony would constitute the sin of simony (cf Ecclesiastical Committee, 229th Report, para 58).

Common law would enforce an ‘accustomed duty’ of the kind described in the Prayer Book marriage service (i.e a customary marriage fee in a particular parish).  However, such a duty / fee was difficult to prove ‘from time immemorial’, and would only be worth a few pence in the money values of today.

So marriage fees are now charged under statutory authority.  This is provided by the Ecclesiastical Fees Measure 1986, as amended by an Amendment Measure of 2011.  The fees themselves are fixed by a parochial fees order made under s.2 of the 1986 Measure.

(S.12(2) confirms that the Ecclesiastical Fees Measure applies only to England.  How the Church in Wales is able to charge marriage fees is one of the great unsolved mysteries of ecclesiastical law, as the common law right is the same on both sides of the Severn.)

Under the Parochial Fees Order 2017, 2 fees are payable for a marriage service, to

(1) the diocesan board of finance (‘the DBF’) and

(2) the parochial church council (‘the PCC’).

Following the 2011 Amendment, marriage fees are no longer payable to incumbents (cf.s.1(1)).  This is a sensible reform.  Weddings are part of an incumbent’s paid duty.  He should not be paid twice for the same work.  Many weddings are solemnised by non-incumbent clergy.  And the DBF is now responsible for payment of all stipends and other clergy remuneration.  Hence the DBF is the appropriate recipient of the fee that was formerly payable to the incumbent.

These 2 statutory fees correspond to the 2 elements of the common law right

(1) the duty of the incumbent to solemnise the marriage, either personally or by deputy and

(2) the use of the church building for the ceremony.  As the Prayer Book rubric says ‘the persons to be married shall come into the body of the church with their friends and neighbours …’.  The PCC is now responsible for the upkeep of the church building.

As amended, the 1986 Measure empowers an incumbent to waive a fee payable to the DBF in a particular case (s.1(9)).  He may likewise waive a fee payable to the PCC, though only after consulting the churchwardens (s.1(10)).

These provisions indicate that the vicar may waive part of a marriage fee, i.e reduce it by £100, as an incentive to bridal punctuality.  But they do not empower him to impose an additional deposit, over and above the statutory fees.

However, the common law right to marry in church is a bare right, limited to what is legally necessary for the solemnisation, i.e reading the marriage service in the church.  It does not extend to the traditional accompaniments of a church wedding, such as music, bells, flowers and photography.  The extras, as they are called.  All these require the incumbent’s licence.

Canon B35(5) of the revised canons confirms that ‘When matrimony is to be solemnised … it belongs to the minister of the parish to decide what music shall be played, or what furnishings or flowers should be placed in or about the church for the occasion’.  Canon F8(2) provides that ‘No bell … shall be rung contrary to the direction of the minister’ (see also canon F15(1)).

Thus, although an incumbent could not charge a deposit in respect of a bare solemnisation, he may attach reasonable conditions to his licence for any extras.  He is therefore arguably within his rights to charge a deposit against late arrival, as a condition of granting  permission for the extras.

Those who supply the extras (organist, choir, bellringers) generally expect to be paid for their services.  Provision of the extras will then be a matter of contract. The incumbent will usually be the link between the couple and at least some of the suppliers of the extras.  He will be involved in making arrangements for the extras.

It may therefore be possible for the incumbent to charge a deposit on a contractual basis, as event organiser for the couple and / or as agent for the suppliers.

So the vicar in this case may be entitled to charge a deposit, on the basis of licence and / or contract.  However, the boundary between

(1) common law right (for which only statutory fees are chargeable) and

(2) extras (for which additional fees may be charged)

must always be respected.  Couples will be illegally overcharged if it is not.

Introducing the 2011 Amendment Measure, the Bishop of Exeter admitted that ‘there is considerable variation between parishes on services that are charged as extras over and above the statutory fees … people who are getting married are surprised to be asked for substantial sums for administration, vergers’ fees and so on …’ (House of Lords Official Report 23rd March 2011, column 794).

The Ecclesiastical Committee confirmed that ‘the PCC [has] never had a power to set fees of its own … over and above the statutory fees’ (229th Report, para 70).  If the incumbent has no common law right to charge a marriage fee, a fortiori the PCC has no such right.

The 2011 Measure was intended to resolve the confusion between rights and extras, but it may not have been entirely successful in this.  The 2017 Fees Order explains that the cost of lighting the church is included in the statutory fee, but that the cost of heating it is a contractual extra.  It also provides that the verger (if any) is a contractual extra.  Yet it is arguable that a verger’s work pertains to the use of the building, and is therefore covered by the statutory fee.

The Crockford Preface 1987: Thirty Years On

The Preface excited remarkable interest and controversy.  By a longstanding custom, its author was anonymous.  However, even in those pre-internet days, anonymity was difficult to maintain in the face of relentless media attention.  The then Archbishop of York, Dr John Habgood, publicly condemned the ‘sourness and vindictiveness’ of the Preface, and the ‘scurrilous charges’ that it supposedly made.  Unnerved by the storm of controversy, and threatened with exposure, the author took his own life.

He was subsequently identified as the Reverend Dr Gareth Bennett (1929-1987), Oxford don and priest of the Church of England.  His Preface is 40 pages long.  It was republished in a posthumous collection of his work, To The Church of England (1988, at pp.189-228), edited by Geoffrey Rowell, a sympathetic colleague.  (Bishop Rowell himself died, of natural causes, earlier this year.)

At about the same time, Archbishop Habgood published a more measured assessment of the Preface, in Confessions of a Conservative Liberal (1988, at pp.82-91).  However, the tragic denouement of the controversy damaged his reputation, and may even have cost him the succession to St. Augustine’s Chair when it became vacant 3 years later.

Dr Bennett saw his task as the provision of ‘an informed and critical account of the state of the Anglican Communion and the Church of England in particular’ (p.189).  Hence the need for anonymity.  Anonymity made possible ‘the scrutiny of a writer who is given complete independence’ (p.190).

His essential criticism of ecclesiastical governance was that it fails to enable adequate consultation.  Improved consultation will improve the quality of ecclesiastical governance, by making it more cohesive and inclusive.

The Preface identifies 3 specific failures of consultation, within:

(1)  the Anglican Communion

(2)  the synods of the Church of England and

(3)  the Crown Appointments Commission (now called the Crown Nominations Commission), which nominates diocesan bishops to the Crown.  It was this that caused all the controversy.

(1) The Anglican Communion

The Preface begins with a survey of the fragmented state of the Anglican Communion.  Anglicanism began in England, of course, and the word ‘Anglican’ really means ‘English’.  The Church ‘followed the flag’ as the British Empire spread across the globe.

Bennett observed that ‘The Englishness of the Communion is not what it was … with the spread of American influence and the natural desire of African and Asian dioceses to break with their colonial past and develop their own indigenous styles’.  The Book of Common Prayer and its derivatives have fallen into ‘virtual disuse’ (p.197), and the new liturgies ‘have distinct doctrinal differences from each other’ (p.198).  This prompts the rhetorical question: ‘without its English style what does keep the Communion together?’ (p.197).

Another fragmenting force is the rejection of classical High Anglican theology, which found the Church’s authority in the Bible as this was interpreted in the life and practice of the Early Church (p.191).  Theologians now suggest that the authorities of the Early Church are too obscure, happened too long ago, and in too different circumstances, to guide the modern Church (cf p.200).  Modern man is therefore condemned ‘[to] live amid the ruins of past doctrinal and ecclesiastical systems, looking to the Scriptures only for themes and apprehensions which may inform [him] … ‘ (pp.200-1).

The existing pan-Anglican consultative bodies are not capable of arresting this process of fragmentation.  The Archbishop of Canterbury is no more than ‘an honoured guest’ outside England.  The Primates’ Meeting ‘lack[s] the authority to make major recommendations’ (p.203).  The ordination of women (still a novelty at that time) has undermined the unifying collegial function of the bishops: ‘the episcopal ministry … the focus of unity, has become a focus for Anglican disunity’ (p.199).

Bennett therefore argued for ‘a reconstituted [Anglican] Consultative Council … to meet more frequently, have an adequate secretariat and the assistance of theologians and experts … there will have to be some self-denying ordinance by which the provinces agree that certain matters should not be decided locally but only after a common mind has been established among the Churches’ (pp.203-4).  Thus Churches with very different cultural values would be forced to listen to each other.

This, of course, anticipated the conclusions of the Windsor Report of 2004, which fell flat.  Its proposal for a pan-Anglican ‘Council of Advice’ and an ‘Anglican Communion Covenant’ is really a more elaborate version of Bennett’s proposal.

Archbishop Habgood generously described the analysis of the Anglican Communion as the ‘best part’ of the Preface (p.87), though he did not endorse Bennett’s proposal.  The failure of the Windsor Report may have vindicated him on this point.  Instead, the Archbishop founded his hope for the Communion on a pan-Anglican ‘doctrine commission’ that had recently been established, but this body (if it still exists) has not been conspicuously successful either.

(2) Synodical Government

Bennett was not the first to point out that the House of Laity of the General Synod is not very representative of its constituency.  Ordinary churchgoers cannot elect its members, they can only elect those who do.  The House of Clergy is more representative, but even there the representative quality is diminished by the large number of ex officio members.

However, his most important point was that the General Synod has very little control of ecclesiastical governance.  He observed that, though the House of Commons can vote the government out of office, ‘the General Synod, by contrast, finds itself faced with a government of the Church which is almost wholly independent of it’ (p.212).

The bishops are not accountable to the General Synod in the way that ministers of the secular state are accountable to Parliament.  Ministers have to answer parliamentary questions and give evidence to select committees concerning the exercise of their responsibilities.  There is no equivalent scrutiny of bishops.

It is true that ecclesiastical legislation (Measures, canons and subordinate legislation) requires the Synod’s approval, but there is not much of this, and it is mostly uncontroversial.  Hence ‘most of the debates … are … on reports from various boards or committees … motions … whether passed or amended, lead to no action at all’ (p.212).

The General Synod’s constitution confirms its freedom (of which it takes full advantage) ‘to consider and express [its members’] opinion on any other matters of religious or public interest’ (Synodical Government Measure 1969, sch2(6)(b)).  But what does this have to do with the governance of the Church?

Synodical government is a misnomer if the synods do not govern the Church.  There is a well-known axiom that the Church of England is ‘episcopally led and synodically governed’.  However, Bennett argues that there is little connection between the two: ‘nothing the Synod does has much effect on [the bishops], the administration of their diocese or the work of the leadership group within it’ (p.212).

This explains ‘the irritation which many bishops feel at having to spend so much time at Synod meetings, and their desultory contribution to its debates’ (p.212).  And who can blame the bishops for being bored by the General Synod, if its proceedings have so little relevance to their work?

Although Bennett does not make this point, English bishops differ from their Roman Catholic counterparts as well as their secular counterparts in their lack of accountability.  Canon 399(1) of the Code of Canon Law 1983 obliges every bishop ‘to present a report to the Supreme Pontiff every 5 years concerning the state of [his] diocese … according to a [standard] form … determined by the Apostolic See’.  This form may resemble the articles of enquiry on a visitation.

The bishop presents the report personally on his obligatory ad limina visit to Rome (canon 400(1)).  (Apparently, when the bishop appears before the Pope, a map of his diocese is hung up in the papal library, for the Holy Father’s ease of reference.)  The bishop receives ‘feedback’, not only from the Pope personally, but also from the various departments of the Roman Curia.

Perhaps if English bishops were required to report regularly, and individually, on their leadership of their dioceses to the General Synod (or the constituent convocations) episcopal leadership and synodical government might become more closely linked.  Episcopal interest in synodical proceedings would certainly revive!

Besides the General Synod there are the diocesan synods, but these also lack much constitutional equipment to scrutinise episcopal leadership.  The bishop is required ‘to consult with the diocesan synod on matters of general concern and importance’ (1969 Measure, s.4).  However, the synod can merely ‘advise the bishop on any matters on which he may consult the synod’.

The Archbishop has an ancient power to visit the bishops and dioceses of his province, to the end ‘that means may be taken thereby for the supply of such things as are lacking and the correction of such things as are amiss’ (canon G5(1)).  Archiepiscopal visitations have been held in recent years, but only to particular dioceses or churches, in order ‘to correct and supply the defects of other bishops’ (canon C17(1)).  In other words, an archiepiscopal visitation is not a regular, routine review but only occurs when something goes seriously wrong and the local bishop cannot cope.

Every diocesan bishop is now required to submit to a procedure known as ministerial development review, once every 2 years.  This review is organised by the Archbishop, who must also organise one for himself (Terms of Service Regulations 2009, reg 18(2)).  However, the General Synod is not involved in this, and the review’s conclusions are kept confidential.  The requirement was introduced to demonstrate the bishop’s equality (or ‘common tenure’ as it is called) with other ecclesiastical officeholders, who are also required to undergo ministerial development review, not his accountability to Church members.

(3)  The Crown Appointments Commission

After criticising inadequate consultation between the bishops and the synods, Bennett controversially proceeded to criticise the consultation process for the nomination of new bishops.

He complained of ‘a virtual exclusion of Anglo-Catholics from episcopal office and a serious under-representation of Evangelicals’ (p.221).  He also noted ‘the personal connection of so many appointed with the Archbishop of Canterbury himself’.

Dr Bennett was of the Anglo-Catholic party himself.  Moreover, despite a brilliant academic career (including a starred First from Cambridge), ecclesiastical preferment had eluded him.  He had to endure the agony of being passed over in favour of men of inferior ability, whose churchmanship was totally at variance with his own.  He was therefore vulnerable (as he would surely have realised) to the reproach that his criticism of episcopal appointments was, as Archbishop Habgood carefully explained, ‘an outburst from a disappointed cleric’ (p.83).

Bennett concluded that ‘An Archbishop should have an influence on appointments [but] it is clearly unacceptable that so many are the protégés of one man and reflect his own ecclesiastical outlook’ (p.222).  This was represented by Habgood, and the media, as an ‘attack’ on the Archbishop of Canterbury.

Archbishop Habgood justified his harsh words about the Preface by invoking the imperative of confidentiality.  ‘The [Crown Appointments] Commission can only do its work properly if its members feel free to discuss the lives and characters of [candidates] with total frankness, and if those who provide information can be similarly satisfied that nothing will be disclosed outside the actual meeting itself’ (p.84).

From this he concluded that a commentator who ‘claimed to write knowledgeably about the Commission … must either be abusing confidence … or … speculating on the basis of gossip’.  Either way, the Preface was dishonest.  The Archbishop concluded confidently ‘I believe [my criticism] is irrefutable’ (p.84).

It may not be.  Does confidentiality mean that knowledgeable, and fair, writing about the Commission is actually impossible?  Is the Commission’s work so confidential as to place it above and beyond all criticism?

Of course, the deliberations of the Crown Appointments Commission must be kept confidential, for the reasons identified by Archbishop Habgood.  However, the constitution, procedure and membership of the Commission are not, and should not be, confidential.  They are open to public comment and scrutiny.  And although the deliberations of the Commission are confidential, the outcome of those deliberations (i.e the appointments made as a result of them) is not.

It is not acceptable for a commentator to betray confidences, or make stuff up, and Dr Bennett did neither.  But it is acceptable to draw inferences from what is known of the constitution, procedure, membership (including the churchmanship and personalities of the members) and outcomes of the Commission.  Indeed any worthwhile commentary must draw such inferences, or it will add nothing to the known facts.  Dr Bennett did not betray confidences, nor did he lie.  He merely drew inferences from what was publicly known.

The Crown Appointments Commission is served by 2 appointments secretaries: ‘great power rests with the secretaries [because] they compile the list of candidates’ (p.219).  The Commission is chaired by the Archbishops, and ‘it is usually not difficult for a chairman to steer enough of [a committee’s] votes in the right direction’ (p.221).  The churchmanship of the Archbishops, and of the other Commission members, is known.  If no Anglo-Catholic bishops were appointed then the inference is that either no Anglo-Catholic candidates were shortlisted, or a majority of the Commission voted against them.

Of course, inferences can be mistaken.  Perhaps the bishops approved by the Commission were not mostly former colleagues and protégés of the Archbishop of Canterbury.  (That mistake, at least, should have been easy to correct.) Or perhaps they were simply the best men for the job, and their connection to the Archbishop and lack of Anglo-Catholicism a pure coincidence.  Or perhaps lots of Anglo-Catholics were offered bishoprics but turned them down.

Mistaken inferences may well be irritating to those in confidential possession of the true facts.  But they are not dishonest.  Archbishop Habgood’s criticism of ‘scurrilous charges’ was itself rather scurrilous.

A subsequent nomination of the Crown Appointments Commission suggests that there was some force in Bennett’s criticism.  And it was made when Archbishop Habgood was still in office, and still co-chairman of the Commission.  A candidate for one of the leading sees had a criminal conviction for indecency.  Yet this rather salient fact was not known to the representative members, who then approved the candidate’s nomination in ignorance of his past.  (Perhaps this could not happen nowadays, on account of the rigorous ‘safeguarding’ requirements.)

 

The Coronation Oath: Right and Rite

Graeme Watt, Barrister, ‘The Coronation Oath’, Ecclesiastical Law Journal, Sept 2017, p.325

‘the oath … shall … be administered to [the Monarch] at the time of their coronation … by the Archbishop of Canterbury …’ (Coronation Act 1688, s.2)

‘Every King and Queen … shall have the coronation oath administered to him, her or them at their respective coronations, according to the [1688] Act’ (Act of Settlement 1700, s.2)

The Coronation Oath Act was passed in the wake of the Glorious Revolution.  The text of the oath is prescribed by s.3.  This well-researched, absorbing article draws attention to a curious fact.  S.3 has never been expressly amended since 1688.  Yet the oath actually taken by the Monarch at the coronation has varied several times over the years.  Its present wording is now significantly different from the unamended statutory text.  Does this difference mean that the oath, as actually taken by the Monarch, is illegal?

The article relates that the oath was first altered for King George I, to refer to ‘Great Britain’ rather than ‘England’, on account of the Anglo-Scottish Union of 1707.  It was altered again because of the Anglo-Irish Union of 1800, which created the United Church of England and Ireland.  Then the reference to the Irish Church was removed following the disestablishment of the Church of Ireland in 1869.

The present version of the oath dates from the coronation of King George VI (our present Queen’s father) in 1937.  The 1937 variation was precipitated by the Statute of Westminster 1931, which granted or confirmed the right of the overseas Dominions of the Crown (Canada, Australia, New Zealand etc) to self-government.  The 1937 oath was repeated by the Queen at her coronation in 1953.

The learned author’s opinion is that the pre-1937 variations of the coronation oath all had proper legal authority, even though s.3 of the 1688 Act was never amended.  They were authorised either expressly or by necessary implication in the Acts of Parliament which effected the Anglo-Scottish and Anglo-Irish Unions, and Irish Disestablishment.  However, he argues that the 1937-1953 variation of the oath did not enjoy such authority, because it went beyond any requirement of the Statute of Westminster.

In the 1937-1953 oath, the Monarch promises ‘to govern the peoples of Great Britain, Ireland, Canada etc … according to their respective laws and customs’ (p.330).  However, it omits the promise in the 1688 oath to govern ‘according to the statutes in Parliament agreed upon’.

The author seems to accept that the Statute of Westminster necessitated some amendment of the coronation oath.  The oath could not very well contain an unqualified commitment to govern according to the Acts of the Westminster Parliament, because the Statute made clear that many of the Monarch’s subjects were not to be governed from Westminster in the future.  And the 1937 oath does promise to govern ‘according to … laws and customs’, which presumably includes statute law.  Is it not farfetched to characterise the 1937 oath as a royal ‘power grab’?

However, the Glorious Revolution was an assertion of the constitutional supremacy of Parliament.  Parliamentary supremacy remains the basis of the British Constitution to this day, notwithstanding British membership of the European Union, and the devolution of legislative powers to Scotland, Wales and Northern Ireland.

Thus the author argues that the Statute of Westminster did not justify ‘The absence of any reference to Parliament as the ultimate source of the laws of the realm [this] does, in theory, reignite old controversies which date to the days of Charles II and … further back to Edward II … ‘.  He therefore concludes ‘with reluctance’ that ‘any oath administered at a coronation is unlawful if it does not … refer to Parliament’ (p.332).

Though he strives to remain calm and optimistic, it is clear that the learned author’s conclusion gives rise to a most alarming possibility.  Perhaps ‘unlawful oaths equal unlawful reigns’ (p.336).  Just imagine ‘the constitutional chaos that would ensue’!  If the Monarch failed to take the oath as required by the 1688 Act and by the Act of Settlement perhaps she is not really Queen.  All the laws passed during her long reign will be invalid, since she had no authority to approve them.

Fortunately this may not be the case after all.  The article cites a reassuring dictum of the Court of Appeal: ‘our Queen … has been accepted by Parliament and by the nation, as the rightful person to inherit the Crown as of the date of her coronation … it is not now, in the year 2000, open to … challenge her right to the succession’ (p.337).

The learned author offers 2 possible solutions to the hidden constitutional crisis that he has uncovered:

(1) Her Majesty might have acquired a prescriptive right to the Crown ‘pursuant to lengthy occupancy of the throne’, despite the invalid oath (p.337).  However, there is a difficulty here: ‘prescription is dependent on the [fiction] that the right claimed has a lawful origin.  The exposure of the fiction is fatal …’ (p.338).  Thus a prescriptive right to the Crown would depend on the presumption that the coronation oath had been lawfully taken, but the ‘well-documented evidence to the contrary’ would rebut that presumption.  So the prescriptive claim would fail, alas.

(2) the equitable doctrine of part performance might apply.  A person who has conscientiously performed her side of a bargain should not be deprived of the benefit of it just because a legal formality was overlooked when the bargain was struck.

It is incontestable that Her Majesty has always acted in accordance with the 1688 oath, even if she never validly took it.  She has always  scrupulously respected  Parliamentary supremacy.  Thus she has kept her side of the post-1688 constitutional bargain with her subjects.  Therefore, happily, ‘we might be permitted to conclude that the person taking the oath should be regarded by law as being in the same position as if the oath had been correctly taken’ (p.340).

This all makes gripping reading.  However, it is argued that the constitutional difficulty, if it exists (which we rather doubt), is not quite as serious as the learned author imagines.  The flaw in his fascinating thesis is that it assumes that the coronation oath, in the correct form, is a condition of the Monarch’s title to the Crown.  It is not.

‘The King is dead – long live the King!’ is a traditional acclamation of the accession of a new Monarch.  F.W Maitland observed in The Constitutional History of England (1911) that ‘The King never dies … under the Act of Settlement, and some centuries before it, the heir begins to reign at the moment of the ancestor’s death’ (p.343).

The coronation rite begins with a ceremony known as The Recognition.  The Monarch formally shows herself to her subjects, while the Archbishop says ‘Sirs, I here present unto you Queen Elizabeth, the undoubted Queen of this Realm … ‘.  The Recognition occurs before the oath is taken, and before the Monarch is crowned.  It makes the point that the Monarch is already fully entitled to the Crown.  The coronation rite proclaims the Monarch’s title, celebrates it, invokes God’s Blessing on it.  But it does not confer, or even confirm, that title.

The coronation oath is therefore not comparable to the oath of office sworn by the President of the United States at his inauguration.  The learned author himself admits that King Edward VIII was never crowned at all, and so never took the oath, but there is no doubt that he was the lawful Monarch till his abdication.  Maitland suggested that ‘The coronation … does not seem to be a legally necessary ceremony’.

It is true, however, that the coronation oath is a mandatory legal requirement.  It is not discretionary or negotiable.  If a hypothetical Monarch declined to have the oath administered to him or her in accordance with the Act of Settlement, i.e flatly refused to take the oath, then this would cause a constitutional crisis.  Possibly it could be argued that a Monarch who refuses the oath has thereby forfeited his or her right to the Crown.  However, the right would not be forfeit ab initio, but only from the time of refusal.  And, of course, refusal of the oath is not the issue here.  The only issue is the correct administration of the oath.

The statutory provisions quoted above are worded passively.  The Monarch does not take the oath:  the oath is administered to the Monarch by the Archbishop of Canterbury.  Thus it is the Archbishop, not the Monarch, who is responsible for the correct administration of the oath, including the correct wording.  It follows that, if the oath is not administered correctly, any legal consequences will fall on the Archbishop alone.

There are 2 possible consequences:

(1) the secular court could require the Archbishop to administer the oath again, and correctly this time and / or

(2) the Archbishop could be haled before the ecclesiastical court to answer a disciplinary complaint of ‘neglect or inefficiency in the performance of the duties of his office’ (cf. Clergy Discipline Measure 2003, s.8(1)(c)).

Which would all be very embarrassing for the poor Archbishop, no doubt.  But the Monarch’s title to the Crown would continue serene and undisturbed.

Wise Virgins: The Cardiff Convention 1917

Controversy

It is easy to forget – and its present leaders may prefer to forget – that the Church in Wales was strongly opposed to its own Disestablishment.  Disestablishment gave rise to ‘more bitterness and acrimony than any political controversy in which the Welsh nation has ever been engaged’ (House of Commons Official Record 1945, vol 409, column 527).  Devolution and Brexit were amicable by comparison.

The Disestablishment controversy was fought on party political lines.  The Liberal Party’s electoral support came from the nonconformist chapels, which resented the perceived wealth and privilege of the Established Church.  In Wales, the Church was widely regarded as an alien, English institution, with only a small number of adherents.

However, the Church was still ‘the Tory Party at prayer’.  For many years, the large Tory majority in the House of Lords frustrated Liberal attempts at Disestablishment.  The Welsh Church Act 1914 was only enacted at the 4th attempt, and only after the Parliament Act 1911 had made it impossible for the House of Lords ultimately to prevent the enactment of legislation approved by the House of Commons.

Disestablishment per se might not have been so controversial.  However, the 1914 Act also provided for a substantial disendowment of the Church in Wales.  Most of its glebe and tithe property, on which its clergy depended for their income, was secularised, transferred to the Welsh local authorities and to the University of Wales (s.8(1)(c)-(e)).

S.13 of the Welsh Church Act contains 2 provisions for the post-Disestablishment governance of the Church in Wales:

‘(1) Nothing in any Act, law or custom shall prevent the bishops, clergy and laity of the Church in Wales from holding synods or electing representatives thereto, or from framing … constitutions and regulations for the general management and good government of the Church in Wales and the property and affairs thereof …

(2) If … it is shown to the satisfaction of His Majesty the King that the said bishops, clergy and laity have appointed … persons to represent them and hold property for any of their uses and purposes, His Majesty in Council may by Charter incorporate such persons … as the representative body.’

S.38(1) clarifies that ‘The expression synod [in s.13(1)] includes any assembly or convention’.

These 2 provisions are different in character.  S.13(1) merely confirms that, having ‘cease[d] to be established by law’ (per s.1), the Church in Wales has the same freedom to govern itself as any other voluntary association.  It does not confer any status on the Church’s synods or assemblies.

S.13(2), by contrast, confers a positive power on the state (‘His Majesty in Council’) to incorporate the Representative Body.  Before exercising this power, the state had to be satisfied that the appointed persons did indeed represent the Church in Wales.

S.8 provided that the property left to the Church in Wales after Disestablishment should ultimately vest in the Representative Body.  However, s.4(1) provided that, at the date of Disestablishment, the property should first vest in the Welsh Commissioners, a state agency.  The Welsh Commissioners would then transfer the property to the Representative Body.

(s.4(2) excepted movable chattels from this rule.  Chattels remained the property of their ecclesiastical owners, then vested automatically in the Representative Body when incorporated.)

Disestablishment, and Disendowment, were originally scheduled to occur no later than a year after the passage of the Welsh Church Act (s.1).  However, the outbreak of the First World War caused Disestablishment to be postponed for the duration of hostilities: Suspensory Act 1914, s.1.  This gave the Church in Wales more time to prepare its future constitution.

Cardiff

The 4 Welsh diocesan conferences were the primary vehicle for the Church in Wales’s forced march to self-governance.  Diocesan conferences were no novelty in 1914.  They had existed in England and Wales since the 19th century, but only on an unofficial, voluntary basis.

Each conference appointed 100 delegates to represent it, led by the bishop: one third clergy, two thirds laity (including, progressively, one lady delegate).  The 4 conferences also passed identical resolutions giving their delegates full power to act on their behalf (12).  These 400 delegates became the Cardiff Convention.  The Convention was therefore a representative assembly of the diocesan conferences, and drew its authority from the diocesan conferences.

The Convention met from 2nd to 5th October 1917, exactly 100 years ago this week.  The venue was apparently Cory Hall, which no longer exists.  There is a group photograph of the delegates which looks as if it was taken outside what is now Cardiff Crown Court.

Nobody in the Church in Wales was more trenchantly opposed to Disestablishment than its senior bishop, Alfred George Edwards, the Bishop of St. Asaph.  (He was, in today’s parlance, a ‘remainer’ or ‘remoaner’.)  By virtue of his seniority, he officiated as President of the Convention.  His opening speech graphically illustrates the Disestablishment controversy:

‘The [Welsh Church] Act proclaims that on the day the War ends it will smash our machinery and rob the safe’.

He continued defiantly:

‘Our answer is clear.  We shall do our best to prevent you [i.e the Liberal Party] doing your worst’ (Convention Official Report, p.7)

The Presiding Bishop was particularly distressed by s.4(1) of the 1914 Act.  Disendowment was bad enough.  But the prospect of the Church’s remaining property also falling into the clutches of a secular agency was dire.  His priority was therefore to ensure that a Representative Body was constituted and incorporated, ready to take over the Church’s property at Disestablishment.

His memoirs contain this poignant entry: ‘to constitute a Representative Body … in January 1915 … I was summoned to London to an all-important committee meeting, and I struggled painfully through it, for on that morning the news had reached me that my youngest son had been killed in action’ (Memories, London, 1927, p.270).

The Cardiff Convention created 2 new institutions for the Church in Wales:

(2) a Representative Body to secure the Church’s property and

(1) a Governing Body to provide for the Church’s governance after Disestablishment.

The Cardiff Convention constituted the Representative Body, but the Representative Body’s authority would come from its Royal Charter, when granted according to s.13(2).  By contrast, the Governing Body’s authority came from the diocesan conferences, via the Cardiff Convention.  The diocesan conferences’ authority came from the freedom conferred by s.13(1).

The constitution of the Governing Body was the embryo of the future constitution of the Church in Wales.  The Cardiff Convention constituted the Governing Body, and thereby enabled the Governing Body to provide a constitution for the entire Church.

The work of preparing the 2 constitutions was led by Mr Justice Sankey, the future Lord Chancellor Sankey, who was then Chancellor of Llandaff.  He took a more positive view of Disestablishment than the Presiding Bishop:

‘Unto us there comes the privilege which is seldom given to a generation, the opportunity of directing and shaping the course of the Church, it may be, for centuries’ (Convention Official Report, p.25).

Nevertheless he warned that ‘There will be chaos in the Church if the Governing Body is not in existence [at Disestablishment] and has not framed its constitution’ (p.18).  He counselled that ‘our watchword [should be] ‘Be ye prepared’.  Forgive me for reminding you of the parable of the wise and foolish virgins’ (p.13).

The Wise Virgins were well supplied with oil to trim their constitutional lamps.  They had a wealth of precedents to draw on.  The Church of Ireland had been disestablished in 1870.  (The Irish Church Act 1869 provided the precedent for the Welsh Church Act.)  In the 19th century, a number of overseas Anglican missions (South Africa, Canada, Australia and New Zealand) had involuntarily separated from the Home Church, when their colonies became self-governing.  When the colonies became independent and self-governing, their Churches were obliged to follow suit.  There is a detailed history of this Victorian colonial constitution-making in Phillimore’s Ecclesiastical Law (2nd ed 1895), at pp.1769-82.

Sankey related that he and his colleagues ‘consulted every constitution of every disestablished Church … circulated questions … to the most celebrated divines and historians’ (p.11).  His method was cautious: ‘We shall only do what is absolutely urgent and what is absolutely essential’.

The draft constitutions reflected this caution:

‘no originality is claim for these schemes.  We are not running after any new thing.  With few exceptions to meet the particular facts of our own case, every paragraph in both of these schemes [for the Governing Body and the Representative Body] is taken from some [existing] constitution which has been tried in the balance and is found not to be wanting’ (p.13).

The Governing Body and the Representative Body are easily confused.  It may be wondered why two separate ‘Bodies’ were considered necessary.  S.13 does not require this.  Perhaps the Representative Body could have served both to govern the Church and to hold and administer its property.

However, Sankey’s researches showed that every other voluntary Anglican Church had two distinct bodies, a synod and a finance committee (p.18).  He suggested that the finance committee/Representative Body should be ‘a small body with trained and expert knowledge’, whereas the synod/Governing Body handles ‘general questions of policy and the control of the many activities and organisations of the Church.  Here you want a larger body … representative … of all shades of thought and opinion’ (p.17).

He might have added that the Representative Body should be accountable for its stewardship of the Church’s property, and this required that it should be separate from, and subordinate to, the Governing Body.

The Governing Body held its first meeting on 8th January 1918, not in Wales, but in Church House, Westminster.  It proceeded to constitute diocesan and deanery conferences, parochial church councils and patronage procedures (p.18) on the basis of draft schemes prepared by Sankey and his colleagues.

The Representative Body was incorporated by Royal Charter on 24th April 1919.

Conclusion

The Disestablishment controversy had a relatively happy ending.  The carnage of the War put sectarian squabbles in perspective.  Any question of disestablishing the Church of England disappeared from the secular political agenda.  Welsh Disestablishment was irreversible, and eventually took place on 31st March 1920:  Welsh Church (Temporalities) Act 1919, s.2.  However, the Liberal-led government was by then heavily dependent on Tory support.  This assisted the Presiding Bishop to negotiate a substantial payment of public money to the Church in Wales, to mitigate the hardship of Disendowment (s.3(2)).

Sankey’s cautious approach of following precedent and ‘only do[ing] what is absolutely urgent and what is absolutely essential’ has stood the test of time, as he hoped it would.  While it has changed in matters of detail, the structure of the Constitution is still largely his work.  Its longevity compares favourably with the first Roman Catholic Code of Canon Law, which was also promulgated in 1917.  The 1917 Code was a great juristic achievement, but it was found to be unsatisfactory and out of date in practice almost immediately, and was eventually abrogated by the present Code in 1983.

There is a masterly analysis of Sankey’s work by Jeffrey Gainer, ‘John Sankey and the Constitution of the Church in Wales’ (LLM dissertation, Cardiff University, 1994).