Ecclesiastical law

Tag: Long v Bishop of Cape Town 1863

The Removal of an Irremovable Pastor: Sharpe v Diocese of Worcester

Dismissal and Attempted Dismissal

In the 20th century the courts held, in a number of reported cases, that sacked ministers of religion were not employees of their Churches, and so not eligible to claim compensation for unfair dismissal or breach of other statutory rights enjoyed by employees.  This persistent refusal to recognise an employment status in ministers of religion has given rise to the canard that clergy are ’employed by God’.

Most of the cases concerned non-Anglican ministers of religion.  However, in Church of England Curates, Employment (1912) 2 Chancery 563, and Diocese of Southwark v Coker (1998) Industrial Cases Reports 140, the courts held that assistant curates do not have contracts of employment.

Then, in the case of Percy v Board of National Mission of the Church of Scotland (2006) Industrial Cases Reports 134, the House of Lords departed from the 20th century trend.  Ms Percy was an associate minister of the Church.  She was accused of misconduct, resigned and made a claim of sex discrimination (not unfair dismissal)  in the employment tribunal.

The House of Lords held that Ms Percy did have a contract with the Church (through the Board), even if not necessarily an employment contract, and so the employment tribunal did have jurisdiction to hear her discrimination claim.

Ms Percy was an ecclesiastical officeholder, but ‘holding an office, even an ecclesiastical office, and the existence of a contract to provide services, are not necessarily mutually exclusive’ (p.141).  Nor should there be a presumption that there is no intention to make a contractual relationship where ministers of religion are concerned.

Nor did the ‘spiritual’ nature of a clergyman’s work preclude a contractual relationship.  There was ‘no cogent reason today to draw a distinction between a post whose duties are primarily religious and [another] post … where this is not so’ (p.143) and ‘[no] difference in principle between … clergy appointed to minister to our spiritual needs … [and] doctors appointed to minister to our bodily needs’ (p.176).

Unfortunately the Percy case gave rise to further misunderstandings among courts and commentators.  The tendency to assume that ministers of religion could not have contracts was succeeded by a tendency to assume that they must have contracts.  There was also a tendency to treat all ministers of religion as a single generic group, regardless of which Christian denomination, or even which religion, they belong to.

These errors were recently corrected in President of Methodist Conference v Preston (formerly Moore) (2013) UK Supreme Court 29.  Ms Preston (she changed her name while the litigation was ongoing) was a Methodist minister.  She resigned and claimed constructive unfair dismissal in the employment tribunal.  However, a majority of the Supreme Court held that Ms Preston did not have a contract of employment with the Methodist Church, or any contract, and so could not bring a claim in the employment tribunal.

This did not mean that the House of Lords had been wrong to hold that Ms Percy did have a contract with the Church of Scotland.  It meant only that the relationship between the Methodist Church and Ms Preston was different from that between the Church of Scotland and Ms Percy. 

In Ms Preston’s case, the Supreme Court found that ‘the manner in which a [Methodist] minister is engaged is incapable of being analysed in terms of contractual formation.  Neither the admission of the minister to full connexion nor her ordination are themselves contracts.  Thereafter, the minister’s duties are not consensual.  They depend on the unilateral decisions of the [Methodist] Conference’ (paragraph 20).

The constitutional structures of the Methodist Church (18th century congregationalist) and the Church of Scotland (16th century presbyterian) are obviously different.  Speaking in Preston, Lord Sumption (a historian by discipline), criticised the ‘abstract categorisation of ministers of religion’ (para 26).  He held that ‘The correct approach is to examine

[1] the rules and practices of the particular Church and

[2] any special arrangements made with the particular minister’.

Even before the Percy case, ministers of religion were not completely defenceless against dismissal.  The effect of the 20th century case law was that clergy could not claim wrongful dismissal or unfair dismissal, for lack of contract.  However, case law from the 19th century makes clear that the courts will protect clergy from what might be described as attempted dismissal.

Attempted dismissal occurs when a bishop or other Church authority purports to dismiss a clergyman, but lacks the legal power to do so under the Church’s own constitution.  The clergyman does not have to prove that he has a contract with his Church.  Attempted dismissal is discussed in two Scottish cases M’millan v General Assembly of the Free Church of Scotland (1861) 12 Scottish Revised Reports (second series) p.772 and Forbes v Eden (1867) Law Reports 1 Sc&D 568.

The Rev Mr M’Millan was purportedly dismissed by the Free Church following allegations that he had ‘exhibited symptoms of intoxication in his walk, appearance, breath and indistinctness of speech’ and, while in that condition, had ‘endeavoured to kiss a married woman in her own house and behaved violently and immodestly towards her’ (p.798).  Mr M’Millan claimed that his dismissal was a ‘gross and flagrant violation’ of the Free Church’s constitution (p.772).

The Court of Session agreed with Mr M’Millan that, if the Free Church had contravened its own constitution in dismissing him, such action would be ‘against, and so far against, law that this [secular] Court must be entitled to interfere’ (p.788).  An attempted dismissal would be declared null and void, and damages might be awarded if the minister could prove a loss.

Forbes v Eden concerned a minister of the Scottish Episcopal Church.  Lord Chancellor Chelmsford stated that

‘the possession of a particular status, meaning by that term the capacity to perform certain functions or to hold certain offices, is a thing which the law will recognise as a patrimonial interest, and that no one can be deprived of its possession by the unauthorised or illegal act of another without having a legal remedy’ (p.575).

In Long v Bishop of Cape Town (1863) 15 English Reports 756, which concerned the Anglican Church of South Africa, the Privy Council overruled the Bishop’s purported dismissal of the Rev Mr Long, holding that the Bishop had no constitutional power to dismiss him.

The two Scottish cases were approved by Lord Denning (then Lord Justice Denning) in Abbott v Sullivan (1952) 1 King’s Bench 189.  He held that a remedy for wrongful removal from office ‘is as much the law of England as of Scotland’ (p.204).  They were also approved by the House of Lords in Percy.

However, claims of attempted dismissal are rare.  Moreover, they cannot be brought in the employment tribunal, and they do not engage statutory employment rights.  Lord Denning observed that such claims occupy ‘an uncharted area on the borderland of contract and tort’ (p.206).

Sharpe v Worcester Diocesan Board of Finance and the Bishop of Worcester (2013) EAT 0243/12

The Reverend Mr Sharpe was a Church of England clergyman. Like Ms Preston, he resigned and claimed constructive unfair dismissal in the employment tribunal.  An appeal was then brought in the Employment Appeal Tribunal (‘the EAT’). 

Unlike the subjects of the two earlier Church of England cases, Mr Sharpe was a rector, not an assistant curate or licensed minister.  The EAT’s judgment records that his appointment pre-dated the new regime of ‘common tenure’ introduced by the Terms of Service Measure 2009 (see paragraph 21).  This means that, as a rector, Mr Sharpe enjoyed the old common law parson’s freehold (i.e tenure for life).  The EAT acknowledged that a benefice is ‘a freehold office belonging to the incumbent for the time being’ (paragraph 120).

The EAT took Lord Sumption’s guidance to heart, giving a lengthy account both of English ecclesiastical law and of the quasi-legislative practices followed in Mr Sharpe’s diocese.  The judgment also contains several paragraphs describing the ‘factual differences’ between Percy and Preston and Mr Sharpe’s case (158-172).  Then it recites the guidance given in Percy and other authorities on how to establish if a minister of religion has a contract.  After delivering this lengthy dissertation, the EAT sent the case back to the employment tribunal to find out whether or not Mr Sharpe had a contract.

Notwithstanding the discussion of the factual differences with Percy and Preston, it is argued that the EAT missed a factual distinction of critical importance to Mr Sharpe’s dismissal claim.  Ms Percy and Ms Preston did not have the parson’s freehold.

In paragraph 72 of the judgment, headed ‘Termination of the Rector’s Office’, the EAT correctly observed that, prior to the introduction of common tenure, a rector who is below the age of retirement can only be removed from office when specific statutory procedures have been completed, viz:

(1) disciplinary proceedings under the Ecclesiastical Jurisdiction Measure 1963 or the Clergy Discipline Measure 2003

(2) proceedings under the Vacation of Benefices Measure 1977

(3) proceedings under the Pastoral Measure 1983 (now the Mission and Pastoral Measure 2011).

Despite this correct self-direction, the EAT failed to draw the obvious conclusion.  If Mr Sharpe had the benefit of the parson’s freehold, and if the statutory procedures referred to in paragraph 72 had not been commenced against him, then he could not have been dismissed, whether actually or constructively, fairly or unfairly.  Therefore he could have no dismissal claim in the employment tribunal.  Such a claim denies the existence of the parson’s freehold, and also ignores Lord Sumption’s guidance in Preston

The older Roman Catholic law illustrates the point nicely.  It described freeholders, with Latin succinctness, as inamovibiles, ‘irremovable pastors’ (see Code of Canon Law 1917, canon 454.2). 

If Mr Sharpe could not have been dismissed, the question of whether or not he had a contract is somewhat otiose.  It is true that the Percy case makes clear that ecclesiastical office is not incompatible with a contract.  However, even if Mr Sharpe did have some sort of contract it could not have overridden his legal freehold.  

Therefore the question for the employment tribunal (and hence the EAT) was not ‘was there a contract?’, but ‘was there a dismissal?’.  Mr Sharpe’s freehold necessarily precluded a dismissal.  That should have been the end of his dismissal claim. 

As a freeholder, Mr Sharpe could not be dismissed, but he could still be a victim of attempted dismissal.  Suppose, hypothetically, the Bishop or other Church authority had interfered with Mr Sharpe’s tenure of office in some unlawful way (e.g by sending him a notice purporting to dismiss him, or obstructing him in the performance of his official duties) in order to force him out, then he could bring a claim in respect of this conduct.  However, such a claim would have to be brought in the High Court or county court.  The employment tribunal would have no jurisdiction over such a claim.

The EAT’s judgment does not indicate why Mr Sharpe made his claim in the first place.  News reports on the internet suggest that he and his family were subject to a nasty campaign of harassment by anonymous parishioners or others.  Mr Sharpe’s complaint against the Bishop and other diocesan authorities was not that they were involved in this harassment, but that they failed to support him against it.

Reading the news reports will inspire sympathy for Mr Sharpe, and for his family.  But it is hard to see how these facts could support a claim of attempted dismissal, of the kind affirmed in M’millan, Forbes and Long.  Attempted dismissal requires some active interference with the officeholder’s tenure by the Church authority, not merely lack of support.

That may not leave Mr Sharpe without a legal remedy.  Canon C18 provides that the bishop is the chief pastor of the clergy of his diocese, as well as the laity.  Hooker describes the bishop as ‘a pastor even to pastors themselves’.  Canon C23(1) provides that the rural dean (or area dean) has particular responsibility to advise the bishop of ‘any case of serious illness or other form of distress among the clergy’.  This may imply that the bishop has some corresponding responsibility to try to relieve clergy who are in distress.  Under the Patronage (Benefices) Measure 1986, the bishop has substantial, though not complete, control over the selection of a new incumbent for a parish.

Perhaps it could be argued that this relationship between the bishop and the incumbent may give rise to some common law duty of care or support on the part of the bishop and the Church towards an incumbent who faces a difficult pastoral situation.  Especially if the bishop knew or ought to have known that he was sending the incumbent to a difficult parish.  However, as with attempted dismissal, such a claim is made in tort rather than contract, and would not be a matter for an employment tribunal.

Canonical Obedience

Feudal Origin

Archbishops, bishops and lesser clergy are said to be bound to each other by a relationship of canonical obedience.  Canon C1(3) of the Revised Canons recites that

‘According to the ancient law and usage of this Church and Realm of England, the inferior clergy … owe canonical obedience in all things lawful and honest to [their] bishop … and the bishop of each diocese owes due allegiance to the archbishop of the province as his metropolitan’.

Canon C14 requires the bishops and clergy to take an oath of obedience to their respective superiors.  Lay readers and lay workers are also required to make a declaration of obedience to the bishop (Canons E7 and E8).

The account of canonical obedience in Canons C1(3) and C14 indicates its feudal character.  The concept dates from the time when authority was defined in terms of the relationship between a subordinate or ‘vassal’ and his immediate superior.  Everyone owed allegiance to his immediate superior, and did homage to him.

Such a concept is hard to reconcile with modern ideas of the rule of law and of a common authority to which all persons, of whatever degree of superiority, are subject.  There are also many authorities in the modern Church besides bishops and Archbishops to which obedience is now required on the part of clergy.

Norman Doe criticises Canons C1(3) and C14.  He argues that one or other Canon is

‘legally superfluous: the oath amounts to a promise to fulfil a pre-existing obligation … [it] has merely symbolic significance … it is  unclear when an episcopal instruction is not honest and it is unclear whether an episcopal order which is lawful but not honest might be disobeyed’ (The Legal Framework of the Church of England (1996) Clarendon Press, Oxford, pp.213-14).

He also points out that churchwardens do not swear obedience to the bishop, even though they are the bishop’s officers (p.241).  The reason for this may be that the office of churchwarden is of post-feudal origin.

Canonical obedience was discussed in the Bishop of St. Davids case (1699) 91 English Reports 126.  The Bishop was tried by the Archbishop for alleged simony.  The secular court refused to restrain the Archbishop’s disciplinary action.  Chief Justice Holt stated that ‘By the common law, the Archbishop has a metropolitical jurisdiction … Archbishops are over bishops, as well as bishops over the other clergy’ (p.127). 

Thus canonical obedience in the Church of England derives its force from common law.  It originated in mediaeval canon law, but its operation within the Church of England requires its acceptance by, or incorporation into, English law.

Long v Bishop of Cape Town

Lord Kingsdown provided an admirably succinct and helpful definition of canonical obedience in the case of Long v Bishop of Cape Town (1863) 15 English Reports 756:

‘canonical obedience does not mean that the clergyman will obey all the commands of the Bishop against which there is no law, but that he will obey all such commands as the Bishop by law is authorised to impose’ (p.776).

The diocese of Cape Town was established for the first time in 1847.  The Bishop was appointed by letters patent of the Crown.  The letters patent conferred the usual powers of a bishop over lesser clergy, namely the rights to confer institution to benefices, to grant licences and to exercise discipline.

In 1848 the Bishop ordained the Rev Mr Long and licensed him to officiate in a church of which he, the Bishop, was trustee.  Mr Long then took the oath of canonical obedience.

In 1853, the diocese of Cape Town was divided into three new dioceses.  The Bishop resigned so that the arrangement could take effect, and was then reappointed to the newly constituted diocese under letters patent very similar to those of 1847.  However, between 1847 and 1853, the constitution of South Africa changed fundamentally.  South Africa was granted ‘home rule’.  Thus it became self-governing, with a legislature of its own.

Relations between Mr Long and the Bishop deteriorated in 1856 when the Bishop convened a diocesan synod and summoned Mr Long to attend it.  Mr Long objected to the synod and declined to attend.  The Bishop suspended him for disobedience but Mr Long ignored him and carried on officiating.  The Bishop then revoked his licence altogether.  Mr Long went to court to prevent the Bishop dispossessing him. 

The Privy Council supported Mr Long.  It was true that Mr Long had submitted to the Bishop’s jurisdiction by accepting office from him and by taking the oath of canonical obedience.  However, the Bishop had no power to convene the diocesan synod or summon Mr Long to it.  He therefore had no lawful cause to suspend Mr Long for refusing to attend, nor to revoke his licence for ignoring the illegal suspension.

The 1853 letters patent had not been effective to create any jurisdiction, because they did not have the sanction of the newly established South Africa legislature.  Moreover the letters patent did not purport to confer power on the Bishop to convene a synod and require attendance.  Therefore no decision of the synod could bind others.

Lord Kingsdown’s definition, and the Privy Council’s decision in this case, make clear that canonical obedience, despite its feudal origin, really means obedience to the law rather than to the superior personally.  The superior is entitled to obedience only when exercising powers conferred by law.

Obedience and Professional Discipline

Canonical obedience should therefore not be confused with the ‘evangelical counsel’ of obedience, which involves treating the will of the superior as the will of Christ.  Such obedience is not, and never has been, required of the merely ‘secular’ clergy.

Clerical disobedience is now dealt with under s.8(1) of the Clergy Discipline Measure 2003.  S.8(1) provides that it is a disciplinary offence for a clergyman to

(1) do any act in contravention of the laws ecclesiastical or

(2) fail to do any act required by the laws ecclesiastical.

According to the doctrine of canonical obedience stated by Lord Kingsdown in Long v Bishop of Cape Town, a clergyman will be guilty of disobedience to an order only if the bishop or other Church authority giving the order has the legal right to do so.  A clergyman is within his rights to disregard an order that is given without proper authority.

It is also argued that it is a defence to a complaint of disobedience, even to a lawful order, if the accused clergyman was not adequately notified of the order, or if the order was not clearly expressed to be an order rather than a suggestion.

The particular responsibility of all ordained, and lay, ministers is ministry of the Word and the Sacraments.  The general rule is that a minister must not only be ordained but also be authorised or licensed by a bishop, in order to exercise this ministry.  The bishop also has the primary responsibility for clergy discipline (cf s.1 of the 2003 Measure).

The bishop may therefore be described as the professional authority of his clergy.  He has a responsibility over them similar to that of the General Medical Council over doctors, or the Bar Council over barristers.

The Bishop, the Queen and the Pope 

The Monarch is the Supreme Ordinary of the Church of England.  Perhaps he or she should also be the object of canonical obedience in this capacity.  However, the Monarch is not referred to in Canon C1(3).  The Monarch’s ecclesiastical supremacy, like the office of churchwarden, is of post-feudal origin. Instead Canon C13(1) requires all ecclesiastical officeholders and ordination candidates to take the oath of allegiance to ‘be faithful and bear true allegiance to [the Monarch], her heirs and successors, according to law’.  This underlines the point that the bishop’s superiority over his clergy is limited by law.

Thus English clergy owe obedience to their bishop, but subject to their allegiance to the Monarch.  In the Roman Catholic Church, clergy are required to show ‘reverence and obedience’ both to their bishop and to the Pope (Code of Canon Law 1983, Canon 273).  This makes the point that a Catholic bishop shares his authority over his diocese with the Pope, on account of the latter’s office ‘uniquely committed by the Lord to Peter’ (cf Canon 331).  The Pope is not merely the bishop’s feudal superior.

Roman Catholic clergy are expected to ‘accept and faithfully fulfill’ any responsibility entrusted to them by the Church authority (Canon 274.2).  However, a priest who disputes his bishop’s decision on a particular responsibility has recourse to Rome, a process which resembles judicial review in English law (see Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.205).  The modern Roman Catholic doctrine of canonical obedience therefore resembles the English doctrine, being ‘restricted to those matters that are prescribed by … law’ (op. cit, p.201).

Brown v Notre Dame de Montreal (a corporation)

(1874) Law Reports 6 Privy Council 157

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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