Ecclesiastical law

Tag: R v Dibdin

‘Christian Law’: A Principled Approach

Norman Doe, Christian Law.  Contemporary Principles (Cambridge University Press, 2013)

From Comparative Law to Communion

After writing The Legal Framework of the Church of England (Clarendon Press, Oxford, 1996), a comparative study of the laws of the Church of England and of the Roman Catholic Church, Professor Norman Doe turned his attention to the governance of the Anglican Communion.

For decades now there has been much comment about ‘splits’ or ‘schisms’ in the Anglican Communion.  This draws attention to an old question: how can the Anglican Communion really be a comm-union, a unity, when its members are politically independent of each other?  In the late 19th century the Privy Council observed presciently that the political separation of the Anglican Churches ‘is likely enough in the course of time to lead to divergencies’: Merriman v Williams (1882) 7 Appeal Cases 484 at 507.

Professor Doe first addressed this question in his book Canon Law in the Anglican Communion (Clarendon Press, Oxford, 1998).  He argued for the existence of a pan-Anglican law, notwithstanding the political independence of the member-Churches.  This Anglican law is ‘that corpus of principles, deduced from the substantive and procedural law of individual Churches, shared by the majority of members of the Anglican Communion’ (p.6), not necessarily by all them.

He developed this thesis in an article for the Ecclesiastical Law Journal (January 2003), which bore the unequivocal title ‘The Common Law of the Anglican Communion’.  Doe suggested that Anglican common law comprises

(1) the principles of governance (described as ‘canon law’) common to the Anglican Churches and

(2) the similarities between Anglican legal systems, i.e the similar constitutional structures of the different Churches (p.4).

This common law is capable of development: ‘Whenever a single [Anglican] Church legislates, it contributes to the common law’ (p.10).  The wider the agreement between the laws of the particular Churches, the more likely it is that the principle they express is part of Anglican law.

A difficulty with this thesis is that it bears no resemblance to the received understanding of common law.  Anglo-American common law is lawyers’ law.  It is administered by judges, not by legislative assemblies, and it is developed on the basis of precedent and legal learning such as previous decided cases and academic commentary thereon.

Legislative assemblies do not legislate on this basis.  Of course, there is some legislative ‘commerce’ in the Anglican Communion.  One Anglican Church may copy a piece of legislation originally made by another.  (Certainly many constitutional rules of the Church in Wales are copied from the Church of England.)  A resolution or report approved by the Lambeth Conference may inspire new legislation in a number of Churches.  But this is legislative history, not common law.

Doe may have resiled from his bold thesis to some extent.  His subsequent work refers to common principles rather than common law.  In 2008, the Anglican Consultative Council published Principles of Canon Law Common to the Churches of the Anglican Communion, which was largely Doe’s work, though done with the assistance of the Anglican Communion Legal Advisers Network (ACLAN).

In the 2008 publication Doe explained that ‘the terms ‘Anglican common law ‘ or ‘Anglican ius commune’ are used interchangeably as titles of convenience for the phenomenon ‘principles of canon law common to the Churches of the Anglican Communion’ (p.114).  So ‘common law’ is the same thing as ‘common principles’. In Christian Law, he explains that his common principles ‘are not themselves laws, they are principles of law’ (p.384).

Doe is refreshingly free of false modesty about his Anglican Principles.  He even compares it to the Roman Catholic Codes of canon law as a source of juridical principles (Christian Law, p.6).  However, the Roman Catholic Codes have the force of law, having been promulgated by the supreme legislator of the Catholic Church, the Pope.  Principles of Canon Law etc is merely an academic commentary and does not have the force of law (certainly not English law).

In Canon Law in the Anglican Communion Doe himself observed that ‘There is no formal Anglican canon law globally applicable to, and binding upon, member Churches of the Communion.  No central institution exists with competence to create such a body of laws’ (page 339 – why did it take him 339 pages to reach such an obvious point?)  Academic commentators and legal advisers, however learned, should resist the temptation to appoint themselves to fill this vacancy.

One of Doe’s collaborators in Principles, John Rees,made a more modest, adviserly claim for the project. It ‘set out simply to describe general patterns of Church life to be found in many (though not necessarily all) Churches across the [Anglican] Communion: its purpose is not to prescribe the form that Anglican Church life must take … Its aim is to inform, not to oblige’ (p.13).

While continuing his important academic work, Doe was appointed by the Archbishop of Canterbury to a commission charged with ‘maintaining the highest degree of communion that may be possible’ between the Anglican Churches (mandate), following the ordination as bishop of a practising homosexual.  This commission produced the Windsor Report of 2004 and also proposed an ‘Anglican Communion Covenant’.  His Grace subsequently conferred a doctorate of civil law (DCL) on the Professor.  (He could not make Doe a doctor of canon law, of course, that discipline having been abolished in England at the Reformation.)

Common Principles of Christian Law?

Doe’s quest for communion-through-legal-principle has now gone beyond the Anglican Communion to embrace the whole of Christendom.  After initial doubts, he persuaded himself that it is possible to identify common principles of ‘Christian law’, hence his latest book.

A remarkable feature of Christian Law is its explicitly religious quality.  The book seems to cross the boundary between legal study and ecumenical zeal.  Doe proclaims fervently that ‘dogmas divide but laws link Christians in common norms of action’ (p.10).  He throws down the challenge ‘for both theologians and lawyers to justify the continued significance of doctrinal disagreements when the laws of Churches converge so profoundly around norms of conduct shared by all Christians’ (p.7).

While not a common law, Christian law is a corpus of laws or other regulatory instruments of ‘approaching 100 Churches … across 10 Christian traditions … of 22 ‘Church families’ recognised as such by the World Council of Churches’ (p.vii).  Apart from its broader scope, the structure of Christian Law follows that of Doe’s earlier work, though Doe only manages to identify 50 common principles of Christian law, exactly half the number he revealed in the Anglican Communion.

As with the Anglican Communion, the common principles of Christian law are ‘induced from the similarities of the regulatory systems of churches’ (p.388).  A ‘common principle’  is said to be ‘a foundational proposition or maxim of general applicability which has a strong dimension of weight … expresses a basic theological truth or ethical value …’.

Whatever the legal learning and religious piety behind it, this approach is open to the criticism that it is unscientific.  It is fundamental to scientific research that any theory or hypothesis must fit all the relevant data.  The scientist is not at liberty to ignore data that contradict his preferred theory.

According to Doe’s own account, his common principles are constructed only from data selected by him according to the criterion of similarity.  Dissimilarities which might undermine or negate the common principles are disregarded.  There is no deception, of course, since Doe is quite open about his method.  But the method is still unscientific.

It is also fundamental to legal study that the lawyer (whether a judge in court or an academic) must study the law as it is, not as he might wish it to be.  It is perfectly valid (at least for academics) to criticise a particular law, identify its perceived flaws and argue for ways in which it could be improved.  But simply rewriting or editing the law, or cherry-picking from particular laws, in order to promote a religious objective falls outside the scope of legal study.

Doe’s definition indicates that the commonality of his principles lies very much in the eye of the beholder.  They are heavily influenced by cultural value judgement.  A principle is said to be a ‘foundational proposition’, ‘of weight’, and ‘expresses a basic theological truth or ethical value’, but who decides what is foundational, weighty or a basic value?  Different commentators will have different opinions.

Thus Principle 16(1) states that ‘A Church may employ an Episcopal, Presbyterian, Congregational or other form of government permitted by its conception of divine law …’.  This may be a valid short description of the different systems of ecclesiastical governance, but how is it a common principle?  A Presbyterian Church is governed in accordance with the Presbyterian principle.  A Congregationalist Church is governed according to the Congregationalist principle.  The Roman Catholic Church is governed according to the Roman principle (i.e the Bishop of Rome as the successor of St. Peter, the Prince of the Apostles).

Perhaps Principle 16(1) is saying that different Churches are at liberty to choose different structures, just so long as ‘the pure Word of God is preached, and the Sacraments be duly ministered according to Christ’s ordinance’ (Article 19).  Such a principle may accord with English ecclesiastical law, but it is quite contrary to Roman Catholic law.

Many of the common principles are indeed hard to reconcile with Roman Catholic law.  For example, Principle 35(2): ‘A Church may practise private confession and absolution in the presence of an ordained minister to the extent that this is permitted by the law of a Church’.  In the Roman Catholic Church confession is required by divine law, not merely permitted by Church law.  Also Principle 36(5) ‘The unity of the Church universal is not destroyed by the denominational division of institutional Churches’.

There is also a rather Protestant tendency to define ecclesiastical structures in territorial and national terms (e.g Principles 1(2) and (3), 14 and 18), rather than according to the Catholic criteria of Apostolic succession or rite.  Paragraph 15(2) describes the papacy as an ‘international ecclesiastical office’, as if it were the ecclesiastical counterpart of the Secretary-General of the United Nations, or the President of the European Union.  It takes no account of the Pope’s petrine ministry (Code of Canon Law 1983, canon 331).

The Anglican-Protestant perspective is understandable.  Doe fairly acknowledges (p.viii) that he belongs to the Anglican Church in Wales (which he intriguingly describes as an ‘ecclesial community’, a Roman Catholic term applied to Christian communities that are not recognised as proper Churches).  However, the difficulty remains that his ‘common principles’ are hardly common to all Churches.  They are at most principles that he thinks should be common to all Churches.

Aside from Roman Catholic law, Principle 34, which concerns marriage, is hard to reconcile with the relevant English law.  It provides that

‘(3) To be married validly in the eyes of the Church, the parties must satisfy the conditions prescribed by Church law and should be instructed in the nature and obligations of marriage (4) [marriage] is celebrated at a public service in the presence of an ordained minister and witnesses, and it must be registered …’.

Yet in the case of R v Dibdin (1910) Probate 52, the courts made clear that the marriage contract may be validly made either in church or in a civil ceremony.  There is no obligation to be married in church.  Moreover, the validity of the marriage contract is determined by the secular court, not by the Church.  Canon B30 imposes a duty on the officiating clergyman to offer instruction to a couple who wish to marry in church, but it does not oblige the couple to receive such instruction.  Certainly it does not suggest that their marriage will be invalid without such instruction.

However, Doe’s liberal Anglicanism has its limits.  He affirms that marriage ‘is a lifelong union between one man and one woman’: Principle 34(2).

Law and Religion

The Professor’s distaste for ‘divisive’ dogma may reflect the influence of a form of ecumenism sometimes called orthopraxis, or ‘ecumenism from below’.  We cannot know the truth (at any rate, the whole truth), but we can act.  Religious dogmas, being concerned with truth, are therefore best avoided.  Instead we should engage with persons of different faith by means of practical action which will, eventually, somehow, bring us all together.  Dogmatic differences will then disappear or become irrelevant.

This approach is open to the objection that it confuses religion with politics, and that the whole point of religion is that it is dogmatic.  Be that as it may, the approach has no application to legal study.  The study of ecclesiastical law is open to all, regardless of religious belief.  It is perfectly possible to study Roman Catholic law without believing in the religious claim of the Bishop of Rome, and Scottish ecclesiastical law without believing in the Presbyterian principle.  However, it is still necessary to understand these principles, these dogmas, in order to understand the legal systems that are based on them.

Doe himself conceded in Canon Law in the Anglican Communion that ‘a majoritarian approach [to formulating common principles] is notoriously susceptible to criticism’ (op.cit, p.4).  It may be relatively easy to formulate common principles of Anglican governance, because the constitutional structures and rules of Anglican Churches are undoubtedly very similar.  Moreover, the modern Anglican Communion is the result of involuntary political separation, due to events beyond the control of the Churches, not of any religious division.  However, even in relation to the Anglican Communion, common principles may still be tendentious to some extent.  Notwithstanding the caution expressed by John Rees, they will inevitably reflect the author’s view of how the Anglican Communion ought to be governed.

The reservations expressed here about Christian Law apply only to the 50 common principles in the book’s appendix (pp.388-98, just 10 pages) and to the method adopted in formulating them.  The book contains much interesting material on ecclesiastical governance.  As with all Professor Doe’s work it is based on formidable erudition.  His work on the Anglican Communion obliged him to study the constitution of each of the member-Churches, about 44 in all.  His research for Christian Law involved ‘a vast amount of material from 100 separate legal systems’ (p.10).  Such breadth of study demonstrates qualities of patience and dedication which the author of this blog totally lacks.

Nevertheless the point must be made that law and legal study do not provide a shortcut to Christian unity.  Legal study can assist the ecumenical cause, but only if its autonomy and method are respected.  Faith and reason are not incompatible but they are distinct.  Comparative legal study should be just that, a study of the laws or rules of different Christian communities.  The source material should be studied holistically, addressing differences just as much as similarities.  Indeed the differences are usually more interesting to study than the similarities.

Clergy Discipline and Same Sex Marriage: Inappropriate Conduct?

‘it would not be appropriate conduct for someone in Holy Orders to enter into a same sex marriage, given the need for clergy to model the Church’s teaching in their lives’  (House of Bishops’ Pastoral Guidance)

‘Disciplinary proceedings under this Measure may be instituted against any [ordained minister] alleging … conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders’ (Clergy Discipline Measure 2003, s.8(1)).

Although the Marriage (Same Sex Couples) Act 2013 effectively forbids the solemnisation of homosexual ‘marriages’ in church, it does not forbid clergy from entering into same sex marriages.  However, the House of Bishops of the General Synod has just issued a robust statement entitled ‘Pastoral Guidance on Same Sex Marriage’, affirming that ‘the Christian understanding and doctrine of marriage as a lifelong union between one man and one woman remains unchanged’.  The statement was published, appropriately enough, on St. Valentine’s Day, 14th February 2014 (accessed on the Church of England’s internet website the following day).

The statement does not explicitly threaten disciplinary action against clergy who take advantage of the 2013 Act to enter into same sex marriages.  However, the assertion quoted above, that to do so ‘would not be appropriate conduct’, may contain a broad hint (reinforced by being printed in bold text on the internet).  The words ‘appropriate conduct’ echo s.8(1) of the Clergy Discipline Measure 2003, also quoted above.

Of course, the House of Bishops is not able to decide authoritatively if making a same sex marriage constitutes misconduct under the 2003 Measure.  The Measure confers that power on the disciplinary tribunals constituted by the Measure, and on the higher ecclesiastical courts (cf s.17 and s.20).  The House can only express the collective or majority opinion of its members.  Nor is the House even in a position, collectively, to institute disciplinary action against clergy.  That is the individual responsibility of each diocesan bishop (cf. s.12).

Criminality and Immorality

As the accompanying Code of Practice points outs, the Clergy Discipline Measure provides no further definition of ‘unbecoming or inappropriate’ conduct (para 28).  However, the legislative history of s.8(1) may give some indication of its intended scope.

In the presecular era there was probably little distinction between law and morality.  Behaviour considered immoral was generally also illegal, at least if done in public.  The 1662 Ordinal (and its predecessors) give opportunity to object to the ordination of a deacon or priest on the ground of a ‘notable crime‘.  Writing in the early 18th century, John Ayliffe suggested that ‘All the causes of deprivation [of clergy] may be reduced to these three heads … want of capacity, contempt [of the ecclesiastical court] and crimes‘ (cited in Combe v De la Bere (1881) 6 Probate Division 157 at 163).

Clergy lifestyles were regulated by canon 75 of 1603.  Canon 75 provides that clergy ‘shall not give themselves to any base or servile labour, or to drinking or riot, spending their time idly … playing at dice, cards or tables, or any other unlawful games’.  Canon 109 deprecates ‘adultery, whoredom, incest or drunkenness … swearing, ribaldry, usury and any other uncleanness and wickedness of life’, whether by clergy or laity.  In the early modern period, the ecclesiastical courts were known affectionately as ‘the bawdy courts’, because they exercised criminal jurisdiction in respect of such behaviours.

In the late 19th century ecclesiastical law was amended to take account of the growing divergence between secular law and Christian morality, in order to preserve clergy discipline.  The Clergy Discipline Act 1892 was passed ‘for better enforcing discipline in the case of crimes and other offences against morality committed by clergymen’ (recital).  It provided that clergy were liable to ecclesiastical discipline for ‘an immoral act, immoral conduct or immoral habit’ (s.2).  It further provided that these forms of immorality ‘shall include such acts, conduct and habits as are proscribed by [canons 75 and 109]’: ‘shall include’ suggests that immoral behaviour is not limited to that suggested by canons 75 and 109.

Then the Ecclesiastical Jurisdiction Measure 1963 provided an ecclesiastical offence of ‘conduct unbecoming the office and work of a clerk in holy orders’ (s.14).  ‘Unbecoming’ may be a rather broader term than ‘immoral’.  The Clergy Discipline Measure 2003 seems to broaden the scope of clergy discipline still further, with its phrase ‘conduct unbecoming or inappropriate’, in s.8(1).

Is the wording of s.8(1) broad enough to discipline a clergyman for entering into a same sex marriage?  The purpose of the 2003 Measure was to provide a disciplinary regime for clergy similar to that of secular professions such as doctors or lawyers.  The old terminology which suggested that the ecclesiastical courts exercise a ‘criminal’ jurisdiction over clergy was dropped.  The standard of proof of misconduct was also lowered from the high criminal standard to the civil standard (s.18(3)).  Nevertheless, the Clergy Discipline Measure is still penal, or quasi-criminal, in character.  This means that s.8(1) must be interpreted restrictively or narrowly.

Homosexual acts may be capable of constituting misconduct under s.8(1).  This is clear both from the plain wording of s.8(1) and its legislative history.  However, it does not follow from this that entering into a same sex marriage would contravene s.8(1).  Modern ecclesiastical legislation makes clear that the clergy cannot justify their immoral behaviour merely because such behaviour is no longer illegal.  The law has permitted or tolerated homosexual acts for many years now.  However, as a result of the Marriage (Same Sex Couples) Act, same sex marriage is not merely an act that the law permits or tolerates.  It is a status that is positively conferred by law.

It is therefore hard to argue that the law should regard as immoral, or even as unbecoming and inappropriate, the acquisition of a status that the law itself confers.

Doctrine and Discipline

Such an argument is also contradicted by the Court of the Arches’ decision in Banister v Thompson (1908) Probate 362.  The decision, like the House of Bishops’ pastoral guidance, concerned a marriage that was valid in English law but contrary to the Church’s teaching, in that case marriage to a deceased wife’s sister.  Canon Thompson refused to give Holy Communion to a parishioner, Mr Banister, who had made such a marriage.  When disciplined for this, he relied on the ecclesiastical jurisdiction to refuse the Sacrament to an ‘open and notorious evil liver’.

The Court did not deny that Mr Banister’s marriage contradicted the Church’s teaching.  It even admitted the difficulty: ‘the recent Act [legalising marriage to a deceased wife’s sister] seems to recognise a distinction between the civil and ecclesiastical aspects of marriage, and to alter the law as to the one without purporting to affect the law as to the other … This … creates some difficulty for those who are concerned with its administration’ (p.389).

Nevertheless, the Court firmly rejected Canon Thompson’s defence and upheld Mr Banister’s right to receive Holy Communion.  It was ‘impossible to say that these persons [Mr and Mrs Banister], lawfully married … can … be so described [as open and notorious evil livers] merely because they are living together as man and wife’ (p.390).  The Church’s teaching per se was not sufficient to justify the legal sanction.

It is true that the facts of Banister v Thompson were different from those addressed by the House of Bishops.  The case concerned a lay parishioner’s right to the Sacrament, not a clergyman’s tenure of office.  However, it makes the point that the law cannot very well condemn someone for making a lawful marriage, even if the marriage contradicts the Church’s teaching.  The accusation ‘conduct unbecoming or inappropriate’ is couched in milder language than that of ‘open and notorious evil liver’, but the potential consequences (removal from office, prohibition for life from officiating as a clergyman) are still severe.

The House of Bishops’ statement suggests that ‘The effect of the Marriage (Same Sex Couples) Act 2013 … [is that] there will, for the first time, be a divergence between the general understanding and definition of marriage in England as enshrined in law and the doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer’ (para 9).  Banister v Thompson, which is now more than 100 years old, reminds us that this is not the case.  The 2013 Act has undoubtedly widened the ‘divergence’ between Church and state concerning marriage.  However, the divergence  began at least as early as 1857.  By permitting the dissolution of the marriage contract by divorce, and remarriage after divorce, the Divorce and Matrimonial Causes Act 1857 effectively denied the Church’s teaching that the marriage contract, once validly made, is indissoluble except by the death of one of the spouses.

Ecclesiastical law responded to the divergence by imposing disciplinary penalties on clergy who became involved in divorce proceedings.  Today the Clergy Discipline Measure makes clear that clergy who are divorced or separated for adultery or unreasonable behaviour are liable to penalties (ss.30 and 31).  Clergy are also required to disclose divorce and separation orders involving them (s.34).

However, there is still no law to forbid a clergyman who has been divorced from marrying again, even though his former spouse is still alive, or from marrying a divorced person.  There is a general rule that a person who has been divorced and remarried etc may not be ordained, but still nothing to prevent a divorced person who has already been ordained from remarrying.  Even the general rule forbidding ordination is no longer absolute.  A bishop may now obtain a faculty from the Archbishop to permit the ordination of a divorced and remarried person, or the spouse of such person.  (See canon C4(3) and (3A) of the Canons of the Church of England.)

Thus, if a clergyman is to be disciplined for making a same sex marriage, the court may want to know why such a marriage constitutes ‘inappropriate conduct’ under s.8(1) of the Clergy Discipline Measure, when a second marriage following divorce apparently does not.

For these reasons it is suggested that s.8(1), despite its broad wording, is still not broad enough to discipline clergy for making a same sex marriage that is lawful under English law.

This conclusion does not deny the force of the House of Bishops’ statement qua pastoral guidance.  As the statement says, ‘[clergy] getting married to someone of the same sex would … clearly be at variance with the teaching of the Church of England’ (para 26).  The teaching is found in Canon B30 and in the Book of Common Prayer, which are cited in the statement.

Thus for clergy to make same sex marriages is indeed unbecoming and inappropriate in the context of Canon B30 and the Prayer Book.  However, the disciplinary offence of ‘conduct unbecoming or inappropriate’ must be understood in the context of the Clergy Discipline Measure, and not (at least not directly) in the context of Canon B30 and the Prayer Book.  The Clergy Discipline Measure itself must be understood in the context of English law, of which it is a part.

Discipline and Pastoral Care

The case of Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012 makes clear that disciplinary proceedings should not be used as a device for resolving a pastoral difficulty, however genuine and serious.  The Rev Mr Bland was found guilty of various ecclesiastical offences and sentenced to be deprived of his benefice.  His cantankerous behaviour had alienated the parishioners to such an extent that his Sunday services were attended only by his housekeeper.  The chancellor therefore held that ‘it is my duty to pass sentence pro salute animarum, for the good of souls, which includes both [Mr Bland] and the souls of [his parishioners] … the convicted clerk and the cures where he was working [should] part company now for ever’ (p.1021).

However, the Court of the Arches strongly disapproved this decision, as based on ‘a wholly wrong approach’.  It held that ‘The paramount consideration in selecting the appropriate sentence for an [ecclesiastical] offence … should be the gravity of the offence.  Censure of deprivation … should never be pronounced in respect of an offence which does not merit such censure merely because it is highly desirable to part an incumbent from his parish and there is no other administrative method of removing him from his benefice’ (p.1021-22).

Of course, the Bland case was not concerned with the Church’s teaching.  However, it was concerned with the relationship between ecclesiastical discipline and pastoral care.  Clergy who enter into same sex marriages create a pastoral problem, for the reason identified by the House of Bishops.  They may not drive their parishioners from the Church as the Rev Mr Bland apparently did, but they still cause the Church’s teaching on marriage to be misrepresented or obscured (cf Pastoral Guidance, para 24).

The Court of the Arches’ dictum in Bland, emphasising that an ecclesiastical penalty must be determined according to the gravity of the offence, reinforces its decision in Banister v Thompson.  How can a lawful marriage be regarded as a ‘grave offence’, or indeed as any offence?

The obvious legal solution to the pastoral difficulty is to amend the law, and so bring clergy discipline into alignment with the Church’s teaching.  This would require new legislation making it a specific ecclesiastical offence for clergy to enter into same sex marriages.

Any amendment of the Clergy Discipline Measure to include such an offence would, of course, require the approval of Parliament, which might not be forthcoming in the present climate of opinion.  However, the General Synod has a common law power to legislate by canon, inherited from the Convocations, which does not require parliamentary approval (see Synodical Government Measure 1969).

It has been suggested that canons made under this common law power are not binding upon lay people, but there is no doubt that they are capable of binding the clergy.  The Marriage (Same Sex Couples) Act 2013 also confirms that ‘No Canon of the Church of England is contrary to s.3 of the Submission of the Clergy Act 1533 [ie. no Canon is contrary to the secular law] … by virtue of its making provision about marriage being the union of one man with one woman’ (s.1(3)).  The phrase ‘provision about marriage’, not being limited to the Church’s teaching on marriage, would seem to be broad enough to encompass a new disciplinary canon forbidding clergy to enter into same sex marriages.

A Mixed Marriage

Some years ago the author of this blog was pleased to be invited to a family wedding.  The groom (a distant cousin) was Welsh, and a member of the Anglican Church in Wales.  The bride was from Hungary, a Catholic country.  Neither had been married before.

An unusual feature of this wedding was that it comprised no fewer than 3 marriage ceremonies, as follows:

(1) early on Saturday morning the couple were married in a civil ceremony conducted by a registrar at a hotel on the Welsh-English border

(2) the couple then proceeded to the local Anglican parish church, where a service was held using the form of service entitled ‘Blessing of a Civil Marriage’ in the Church in Wales Prayer Book of 1984.  The service was conducted by the vicar, though the local Catholic priest attended (in robes) and said a prayer

(3) several weeks or even months later the couple made the journey to the bride’s family home, and were married in a Catholic parish church in rural Hungary (by which time the bride was pregnant).

This happy family event offers a useful case study for comparing the English and Roman Catholic law concerning the solemnisation of marriage.

The English law

In R v Dibdin (1910) Probate 57, the courts repeatedly emphasised that there is only one marriage contract in English law.  The marriage contract is the same, regardless of whether it is solemnised in church or in a civil ceremony:

‘in [English] law, marriage is a civil contract.  The nature and effect of marriage … is precisely the same whether it is contracted according to the rites of the Church or in any other lawful manner.’ (p.98)

‘Marriage, in the view alike of the courts of common law and of the ecclesiastical courts, is not a sacrament: see Article 25.  It is a contract … affecting the status of the parties.  But it is one and the same thing whether the contract is made in church with religious vows superadded … or before a registrar without any religious ceremonies … the Established Church has never refused to recognize any marriage which by our law is valid as being other than a good marriage for ecclesiastical purposes’ (p.109).

‘To the [English] law there is only one contract of marriage.  It may be solemnized in a church … with the rites of the Church of England … or it may be made before a registrar … The result is one and the same in every respect known to the law’. (p.114).

Thus an Anglican who wishes to marry is under no obligation to marry in an Anglican church, or according to a religious ceremony.  In the Church of England (and the Church in Wales) a civil marriage is just as valid as a marriage in church.  The Church cannot solemnise the marriage of a person who has already been lawfully married in a civil ceremony, unless, of course, the previous marriage has ended by death or divorce.

However, the celebrated Christian apologist and Anglican C.S Lewis seems not to have shared the view of the judges in Dibdin.  His own tragically short marriage has been movingly dramatized in the film Shadowlands.  He originally married his American friend Joy in a registry office (not a church) merely in order to secure her legal right to remain in Britain.  Later, when she was diagnosed with cancer, he fell in love with her and wished to have a church marriage.  After initial difficulties with ecclesiastical authority (not because of the previous civil marriage, but because Joy was a divorcee), Lewis and Joy were ‘married’ by a vicar using the marriage service in the Book of Common Prayer 1662.

S.46 of the Marriage Act 1949, entitled ‘Register office marriage followed by religious ceremony’, offers some concession to this religious sensibility.  It provides that:

‘(1) If the parties to a marriage solemnised in the presence of a superintendent registrar desire to add the religious ceremony ordained or used by [their] church … they may present themselves … to the clergyman or minister of the church … and the clergyman or minister … may, if he sees fit, read or celebrate in the church or chapel … the marriage service of the church …’.

However, s.46(2) supports the dicta in R v Dibdin by making clear that

‘Nothing in the reading or celebrating of a marriage service under this section shall supersede or invalidate any marriage previously solemnised in the presence of a superintendent registrar and … shall not be entered as a marriage in any [statutory] marriage register’.

These provisions of s.46 first appeared in s.12 of the Marriage and Registration Act 1856 (19 and 20 Vict, c.119), nearly 100 years before the 1949 Act, when civil marriage was still a relative novelty.  It may be comparable to the provision now contained in the Matrimonial Causes Act 1965, at s.8, which relieves clergy from any duty to solemnise the marriage of a divorced person whose former spouse is still alive.  S.46 is likewise a concession to individual conscience, though of the spouses rather than the clergy.  However, s.46 also protects an officiating clergyman from any possible liability for solemnising what would otherwise be an illegal marriage, and makes clear that the clergyman is not obliged to perform the ceremony. 

In this case, marriage ceremony (2), unlike C. S Lewis’s church ‘marriage’, did not purport to be a solemnisation of marriage.  It was a service held merely to bless a civil marriage.

On its wording s.46(1) of the 1949 Act permits the vicar to ‘read or celebrate the marriage service’, even though the couple are already married by law.  In 1856, and in 1949, the only ecclesiastical marriage service provided by ecclesiastical law was that in the Book of Common Prayer.  The 1662 Book makes no provision for civil marriage because, of course, such marriages were unknown in 1662.

Thus s.46 is referring to the 1662 marriage service, not to modern services of ‘blessing’ of a civil marriage.  It is therefore argued that such services do not engage s.46 at all.  Modern blessing services may resemble the marriage service to some extent, but they make clear that the couple are already married. The 1662 marriage service, of course, is based on the assumption that the couple are not already married.  The authority of the secular law is surely not required merely for the Church to bless a civil marriage.    The authorisation of blessing services is a matter for ecclesiastical law only (or in Wales, for the Constitution of the Church in Wales). 

The Roman Catholic Law

Roman Catholic law agrees with English law that there is only one marriage contract.  However, it claims exclusive jurisdiction over the contract where at least one of the parties is a Catholic.  Thus any civil marriage and any Anglican marriage involving a Catholic is generally considered invalid. 

The relevant Roman Catholic law is set forth in the Code of Canon Law 1983.  Secular jurisdiction over marriage is limited to the ‘civil effects’ of the contract (canon 1059).  A Catholic marriage must be solemnised by a Church official (usually a priest, but sometimes a deacon or authorised lay official) (canons 1108, 1112).

Marriage with a non-Catholic is still generally prohibited (canons 1124 and 1129).  However, the Church authority may grant permission for such a marriage ‘if there is just and reasonable cause’ (canon 1125).  The use of the word ‘permission’ (licentia) rather than ‘dispensation’ may imply a more positive attitude to mixed marriage and greater respect for freedom of marriage than in former times.

If permission is granted for a mixed marriage, the marriage should still normally be solemnised in a Catholic ceremony, because it is a Catholic marriage.  However, a dispensation (not a permission this time) is possible to relax the general rule and permit a non-Catholic religious ceremony.  This is only allowed if there would be ‘grave difficulties’ with a Catholic ceremony (canon 1127).  Clearly in this case there were no difficulties about a Catholic ceremony, there was no dispensation and so the normal rule applied.

If there is a Catholic marriage ceremony in accordance with the normal rule, there must not be another, non-Catholic religious ceremony ‘for the purpose of giving or renewing matrimonial consent’.  This reflects the Catholic teaching that marriage is a sacrament which, like baptism or ordination, cannot be repeated.  A non-Catholic religious ceremony might also be seen as impugning the validity or efficacy of the Catholic sacrament.

However, a secular marriage ceremony is not forbidden in Roman Catholic law.  In some countries couples are obliged to submit to a secular ceremony if their marriage is to be recognised by the local secular law.  In France, for example, it is apparently usual for couples to have two marriage ceremonies, one at the Town Hall and one in church.  Roman Catholic law pragmatically tolerates this requirement of secular law, even though it regards only the church marriage as the true marriage contract.

The sequence of marriages ceremonies in this case becomes clear:

(1) The couple could not have been married in the Anglican parish church, because theirs was a Catholic marriage.  Nor could they even have had their Catholic marriage blessed in the Anglican church.  However, they were permitted to make a civil marriage, even though civil marriage is not compulsory in English law as it is in French law. 

(2) The civil marriage in turn made possible the blessing in the Anglican church, because the blessing was of the civil marriage, not the Catholic marriage, which was made some time later.  The blessing would presumably have been somewhat meaningless from the official Roman Catholic viewpoint (despite the attendance of the Catholic priest), since it related to an invalid marriage, and was given by a vicar whose priestly orders are also considered invalid.  However, such a blessing is not actually forbidden by Roman Catholic law.

(3) If the bride had been an Anglican, like the groom, the couple’s marriage would obviously not have been a Catholic marriage.  Their civil marriage ((1) above) would then have been a valid sacramental marriage in Roman Catholic law.  If they had chosen to marry in the Anglican parish church, such marriage would likewise have been a valid sacramental marriage.

Exclusion from Holy Communion

The only remnant of ecclesiastical jurisdiction over the laity to survive the reforms of the 19th century is the power to exclude, or ‘repel’, a person from holy communion.

This power is now regulated by Canon B16, which provides that

‘if a minister be persuaded that anyone of his cure who presents himself to be a partaker of the Holy Communion ought not to be admitted thereunto by reason of malicious and open contention with his neighbours, or other grave and open sin without repentance, he shall give an account of the same to the bishop … and therein obey his order and direction …’.

Canon B16 makes clear that the bishop alone may order that a person be excluded from the Sacrament.  The minister’s function is merely to inform the bishop and obey him.

It is true that Canon B16 confers an emergency power on the minister ‘in case of grave and immediate scandal to the congregation’.  However, in these (rather unlikely) circumstances, the minister is required to report all to the bishop ‘within 7 days after at the furthest and therein obey his order and direction’.

Natural justice must be observed.  Before making any order the bishop must ‘afford to [the sinner] an opportunity for interview’, to hear his side of the story.  If the bishop orders exclusion from the Sacrament the sinner must first be advised of this by the minister and warned ‘that in any wise he presume not to come to the Lord’s Table’.

Canon B16 does not oblige the bishop to order exclusion, now matter how grave the sin.  The bishop may confine himself to exhorting or rebuking the sinner.  The wording of Canon B16 also suggests that any order excluding a person from the Sacrament must be confined to one church, or at most the area of one benefice.  It starts by saying that ‘If a minister be persuaded that anyone of his cure etc’.  A person excluded from the Sacrament within that cure may still be admitted to it elsewhere.

The grounds on which a person may be excluded from the Sacrament were examined by Sir Lewis Dibdin, Dean of the Arches, in Banister v Thompson (1908) Probate 362. 

This case was decided before Canon B16 was promulged.  The power to exclude was then conferred by the rubric of the Book of Common Prayer, which had the statutory authority of the Act of Uniformity 1662, and by the canons of 1603.

The rubric was differently worded from Canon B16.  It provided that if any would-be communicant was ‘an open and notorious evil liver, so that the congregation by him is offended … the Curate having knowledge thereof shall warn him and advertise him … not to presume to come to the Lord’s Table until he have openly … repented’.  It did not expressly require the minister to refer the matter to the bishop.

Mr Banister was a parishioner of Canon Thompson.  He was a widower.  He married his deceased wife’s sister in Canada, because such a marriage was illegal in England.  Shortly afterwards, English law was changed to permit such marriages and retrospectively to legalise those already contracted.

This did not impress Canon Thompson, who refused to admit Mr Banister and his new wife to holy communion. Mr Banister complained to the ecclesiastical court.  Canon Thompson’s defence was that he had a lawful cause of refusal, because Mr Banister’s marriage conflicted with the Church’s teaching on marriage.

The case did indeed expose a tension between the Church’s teaching and the secular law.  Canon Thompson was correct that marriage with a deceased wife’s sister is contrary to the Church’s teaching.  The secular law acknowledged this by permitting a clergyman to refuse to solemnise such a marriage, and by making clear that it would not protect a clergyman who married his own deceased wife’s sister from ecclesiastical discipline.

The Court of the Arches admitted the difficulty: ‘the recent Act seems to recognise a distinction between the civil and ecclesiastical aspects of marriage, and to alter the law as to the one without purporting to affect the law as to the other … This … creates some difficulty for those who are concerned with its administration’ (p.700).

Nevertheless the Court rejected Mr Thompson’s defence.  It ruled that a priest has no inherent, ex officio power to exclude sinners from holy communion ‘in the absence of a judicial sentence of excommunication’ (p.383).  Canon B16 now makes this clear.

The priest’s function is limited to exhortation.  He ‘has authority to reprove, rebuke, exhort … He is to rebuke sin and to give warning of … ‘unworthy receiving’ of holy communion’ (p.387). 

The normal rule is therefore that ‘the responsibility of separating a man from communion is thus left … to the voluntary action of the man himself, whose conscience is to be informed … by the exhortations of the clergy’ (p.383).

However, the Court acknowledged that there was a power in the Church to refuse the Sacrament to an ‘open and notorious evil liver’.  It specified the conditions on which this power might be exercised:

(1) ‘By an evil liver is intended a person whose course of life, as distinguished from some particular action, is seen to conflict with the moral code of Christendom’ (p.385).  This suggests that one sin alone, however grave, does not warrant exclusion.  An objectionable course of conduct or lifestyle is required.

(2) ‘Open and notorious’ means ‘that the facts … of the evil living are so conspicuous and well known as to be indubitable’ (p.386).  Mere suspicion is not enough.  The wrongdoing must either be admitted by the sinner or be proved by incontrovertible evidence.

(3) ‘The evil living … must cause offence to the public conscience’ (p.387).  The sinful conduct must be offensive to the sinner’s fellow communicants.  Exclusion from holy communion will therefore be heavily influenced by cultural value judgement.  The same sin may justify exclusion in one parish, if it shocks the congregation there, but not in a neighbouring parish, if the congregation is not shocked.

The purpose of exclusion is the public order of the Church, not the reformation of the sinner: ‘the clergyman in repelling any one is not … exercising godly discipline on the person repelled, but he is acting as a public officer for the protection of the whole community’ (p.385). 

Applying this law to the facts of Canon Thompson’s case, the Court held that it was ‘impossible to say that [Mr and Mrs Banister], lawfully married … can … be so described [as evil livers] merely because they are living together as man and wife’ (p.390).

It might have added that Canon Thompson had not, apparently, produced any evidence that Mr Banister’s marriage had caused offence to the local congregation, as required by condition (3).

The Court of the Arches’ decision was supported by the secular courts in the subsequent Dibdin litigation, which is discussed elsewhere.  The case also clearly influenced the drafting of Canon B16.

However, Canon B16 does not have statutory authority.  Following the Worship and Doctrine Measure 1974, the rubric of the Book of Common Prayer no longer has statutory authority either.  This raises the question whether the Church’s right to repel from holy communion has survived.

Mr Banister founded his right to receive holy communion on an ancient statute, the Sacrament Act 1547.  This Act provides that the minister ‘shall not without lawful cause deny the [Sacrament] to any person that would devoutly and humbly desire it’.

However, the reference in the 1547 Act to a ‘lawful cause’ of refusal clearly implies that persons may lawfully be denied the Sacrament.  There is overwhelming historical evidence that the Church has, from the earliest times, claimed and exercised the right exclude grave sinners from holy communion.  The Church courts continued to excommunicate offenders, with the support of the secular courts, until the 19th century.  Article 33 also affirms the Church’s right.

Refusal of the Sacrament was briefly discussed in Blunt v Park Lane Hotel (1942) 2 All England Reports 187.  A litigant in an action for slander sought unsuccessfully to avoid embarrassing questions about her sex life by pleading privilege against self-incrimination. 

Lord Goddard (then Lord Justice Goddard) acknowledged that a known adulteress might be liable to be repelled from holy communion, but held that this did not constitute a criminal penalty, and so could not attract the privilege.

The Sacrament Act provides that persons must ‘devoutly and humbly’ desire the Sacrament to qualify for admission.  This suggests that a priest is within his rights to refuse the Sacrament to someone who is drunk or disorderly (a fairly common occurrence at Christmas midnight masses) without first requiring the bishop’s decision.

Modern Ecclesiastical Jurisdiction

Lord Penzance

Lord Penzance, Dean of the Arches in the late 19th century, did much to modernise ecclesiastical jurisdiction.  In Phillimore v Machon (1876) 1 Probate Division 481 he signified the Church courts’ recognition of the loss of their jurisdiction over the laity.  In Combe v de la Bere (1881) 6 Probate Division 157 he remoulded the jurisdiction over the clergy from a jurisdiction pro salute animae into a modern disciplinary jurisdiction.

The process of modernisation was completed by Lord Penzance’s successor as Dean of the Arches, Sir Lewis Dibdin, in Banister v Thompson (1908) Probate 362, which clarified the law governing exclusion from Holy Communion.  This is discussed separately.

In the case of Peek v Trower (1881) 7 Probate Division 21, Lord Penzance also effectively inaugurated the modern faculty jurisdiction, though unfortunately his judgment in the later case of Nickalls v Briscoe (1892) Probate Division 269 gave rise to subsequent misunderstandings.  This is also discussed separately.

Phillimore v Machon

Mr Machon was a farmer, not a clergyman or churchwarden.  Walter Phillimore, son of Sir Robert, was Vicar-General of Lincoln, though aged just 30.  He prosecuted Mr Machon in the ecclesiastical court for allegedly swearing a false affidavit in order to obtain a marriage licence.

Lord Penzance was plainly irritated by the precocious Phillimore’s attempt to revive the (by then) obsolete ecclesiastical jurisdiction over the laity.  The difficulty, however, was that the jurisdiction to try this particular offence had not been expressly abolished by Act of Parliament.

The difficulty was solved by holding that the ecclesiastical jurisdiction had been inferentially abolished by an Act of Parliament.  This Act had conferred criminal jurisdiction in respect of false oaths on the secular courts.  By doing this Parliament had withdrawn the jurisdiction from the ecclesiastical court.

Lord Penzance cited Coke:

‘where the common or statute law give remedy in foro seculari … the conusans of that cause belongs to the King’s temporal courts only: unless the jurisdiction of the ecclesiastical court be saved or allowed by the same statute to proceed …’ (p.489). 

Phillimore’s suit was dismissed with costs.

The case is useful for its approach to outdated law.  Lord Penzance noted that ‘the punishment of the laity for the good of their souls by the ecclesiastical courts would not be in harmony with modern ideas’ (p.487).  However, he acknowledged that contemporary thought alone ‘form[s] no reason for rejecting the jurisdiction, if it exists in law, but [it] ought to make the Court careful in asserting such a jurisdiction if its existence is not plainly established …’.

Phillimore had not been very careful in this respect.  Lord Penzance noted that he had been unable to cite a similar prosecution in an ecclesiastical court within the previous 200 years.

These dicta acknowledge that a jurisdiction may be abolished only by statutory authority, express or implied.  However, they also suggest that, where the jurisdiction is plainly anachronistic, it is wrong, as a matter of policy or discretion, for the Court or its officials to seek to revive it.

Combe v de la Bere

The Rev Mr de la Bere was convicted of various ‘ritualist’ offences: ‘unlawful use of lighted candles … unlawful elevation of the paten … unlawfully kneeling or prostrating himself …’ (p.158).  The Court of the Arches suspended him for six months.  He defiantly continued to officiate in his church and also obstructed the clergyman appointed to stand in for him during his suspension.

Such flagrant disobedience left the Court with little alternative but to deprive Mr de la Bere of his living.  However, Lord Penzance carefully discussed the origin and scope of deprivation as an ecclesiastical penalty.  He found that there were ‘very meagre records of ecclesiastical law’ on the point (p.162).

Deprivation is deprivation from office.  It therefore necessarily affects property rights.  However, Lord Penzance noted that ‘in [no] case of purely spiritual cognizance [have] the temporal courts … questioned the propriety of this sentence or the right of the [ecclesiastical] court to inflict it’. 

Thus he concluded that the ecclesiastical court had jurisdiction at common law to deprive a clergyman from office.  (Later, of course, the penalty was sanctioned by statutory authority.)

Citing Ayliffe, Lord Penzance held that ‘All the causes of deprivation may be reduced to these three heads …

[1] want of capacity,

[2] contempt and

[3] crimes’ (p.163).

‘Want of capacity’ may refer to some medical incapability or to legal incapacity (for example, if the incumbent is not an ordained priest).  ‘Contempt’ is disobedience to ecclesiastical law, or to the lawful orders of the ecclesiastical authority.

Lord Penzance then stated the criteria for deprivation: ‘the gravity of the offence in each particular case taken in connection with its attendant circumstances’ (pp.169-70).  Also ‘one mode of measuring the gravity of an offence is to consider the obligations which have been broken through the committing of it’ (pp.174-5).

The case established that the purpose of modern ecclesiastical discipline is not ‘the soul’s health’ or the offender’s ‘reformation of manners’.  Discipline serves the public order of the Church, which demands the exclusion from office of those guilty of serious or persistent misconduct.

Combe v de la Bere was affirmed by the Court of the Arches in Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012.

The Rev Mr Bland did not get on with his parishioners.  He was convicted in the consistory court of various offences of neglect of duty and unbecoming conduct.

Mindful of the fraught situation in Mr Bland’s parish, the chancellor sentenced him to be deprived of his living, holding that ‘I should be failing in my duty if I did not … ensure that the convicted clerk and the cures where he was working part company now for ever’ (p.1021).

However, the Arches strongly disapproved of this sentence, holding that it was ‘a wholly wrong approach’ to use deprivation as a tool to resolve a difficult pastoral situation.  It followed Combe in holding that ‘the paramount consideration in selecting the appropriate sentence … should be the gravity of the offence … or the totality of the offences …’.

However, the Court of the Arches agreed that, if the proven offence was of sufficient gravity to warrant deprivation, it may be relevant to consider ‘the interests of the parish together with the other relevant circumstances’.

On Mr Bland’s appeal, the Court of the Arches overturned all his convictions, except a conviction for writing a number of rude letters, and sent him back to his parish with a rebuke.  (The pastoral situation there did not improve, indeed it deteriorated, and for many years Mr Bland’s Sunday services were attended only by his housekeeper.)

R v Dibdin

(1907) Probate 57 and 101

This once-famous case concerned the Deceased Wife’s Sister’s Marriage Act 1907.  The 1907 Act permitted a man to marry his deceased wife’s sister (‘DWS’), and retrospectively validated any marriages with a DWS contracted before the Act came into force.  Moreover the Act permitted such marriages to be solemnised in church.

The religious difficulty with the Act was that an earlier Act, passed during the reign of Henry VIII, not only forbade marriage with a DWS, but described such a marriage as ‘against the law of God’ (p.79).  The doctrine of the Church of England held that marriage to a DWS contravened the ‘Levitical laws’ in the Old Testament.

The Rev Canon Thompson refused to give Holy Communion to a parishioner, Mr Banister, who had married his DWS.  For this refusal he was disciplined by the Court of the Arches, of which Sir Lewis Dibdin was then Dean.  He then applied, unsuccessfully, to the secular courts for an order restraining the disciplinary proceedings against him in the ecclesiastical court.

The proceedings in the Court of the Arches are reported as Banister v Thompson (1908) Probate 362.  However, the secular case is interesting in its own right, as it is probably the only case in which the secular courts have discussed at length the tension between Church doctrine and modern ‘permissive’ legislation (now more usually known as ‘equality law’).

The Divisional Court boldly sought to construe the divine law as well as the human law.  It concluded that marriage with a DWS was not against divine law.  One judge stated that, before the 1907 Act, such a marriage was ‘bad in law, not because it always was against the law of God, but merely because the statutes of the realm declared it to be unlawful’ (p.79).  He held that ‘this marriage, which before was contrary to the law of God merely because the [Henrician] statute condemned it as such, is so no longer’ (p.81).

Another judge reached the same theological conclusion: ‘the words ‘contrary to the law of God’ [in the Act of Henry VIII] cannot be meant literally … for the Pope … grant[ed] dispensations in these cases, and Henry VIII himself married under such a dispensation’ (p.97).

One judge suggested that the Act of 1907 had not disturbed the theological position: ‘The Act … give[s] the persons contracting such marriages their full civil rights [i.e human rights] but no more … It does not repeal the Act of Henry VIII which declared that such marriages were contrary to God’s law’ (p.88).

The judges of the Divisional Court was clearly reluctant to accept the possibility that an Act of Parliament could be contrary to divine law: ‘Were the meaning of the Act not what I suggest, it would provide … that a clergyman … might solemnise … a marriage contrary to the law of God, and this we must not lightly suppose Parliament to have intended’ (p.81).

The Court of Appeal largely agreed with the Divisional Court’s theological conclusions, adding that prohibition of marriage to a DWS ‘was not in accordance with the general practice of Christian countries and Churches’ (p.119 – in other words, such marriages were permitted in most other countries by the time the 1907 Act was passed). 

One Lord Justice even suggested something resembling a doctrine of parliamentary infallibility: ‘this right of individual judgment which created the Reformation necessitates some ultimate arbiter, for the opinions of men … will differ, and the state is the only possible arbiter’ (p.132).

Of all the judges who spoke in the case, only the Master of the Rolls, Cozens-Hardy, declined to enter the theological discussion.  Instead he took a clear positivist view that an Act of Parliament is the law and requires no further justification.  The judges’ function is merely to interpret and apply the Act, not to reconcile it with divine law.  Cozens-Hardy MR stated that ‘marriages … with [a] DWS were [fomerly] declared to be prohibited by God’s law … That was the then view of the Legislature.  It is not for any court to consider whether they were in truth forbidden by God’s law’ (p.107).

Mr Justice Darling probably had the clearest insight into the policy behind the 1907 Act: ‘in reality, Parliament had not any settled intention whatever, except … to legalize these marriages … perhaps desiring to leave altogether unsolved the many embarrassing questions of conscience … arising out of it’ (p.82).

Both courts affirmed that the Church and the clergy were subject to the 1907 Act, regardless of its consistency or inconsistency with divine law.  The Master of the Rolls stated that a marriage ‘is one and the same thing whether the contract is made in church … or before a registrar … the Established Church has never refused to recognize any marriage which by our law is valid as being otherwise than a good marriage for ecclesiastical purposes’ (p.109).

One Lord Justice remarked sternly that ‘No man has a right to become a clergyman of the Church of England who is not prepared to perform the lawful duties of that office … If the [performance of a lawful duty] would do violence to his conscience, he should abstain from entering holy orders’ (pp.129-30).

Tension between secular law and Church doctrine obviously becomes acute when the law obliges the Church to do something incompatible with its doctrine. 

The legislature’s solution to ’embarrassing questions of conscience’ arising from the solemnisation of marriage has been the insertion of a ‘conscience clause’ in the relevant Act, relieving individual clergy from the obligation of solemnising marriages which they regard as contrary to the Church’s teaching.  The conscience clause concerning the marriage of divorced persons in church is now contained in the Matrimonial Causes Act 1965, s.8(2).

This device seems to have avoided direct conflict in the century since Dibdin was decided.  In the Civil Partnership Act 2004, Parliament apparently inserted a conscience clause for the entire Church by providing that civil partnerships may not be registered on religious premises (s.6(1)).  This has recently been amended (s.6A, introduced by the Equality Act 2010, s.202).  However, there is no guarantee that secular authority’s delicacy towards embarrassed religious consciences will continue in the future. 

The attempts of the judges in the Dibdin case to reconcile divine law with an inconvenient Act of Parliament may well seem clumsy and confused.  Their modern counterparts apparently decline to acknowledge that there is a divine law (or at least they plead ignorance of it).  Any claim of divine law is treated as a matter of individual religious belief only.  The religious belief (not the divine law) is then required to be proved by evidence. 

This current attitude fails to appreciate that divine law is still incorporated into English ecclesiastical law to some extent (by the Worship and Doctrine Measure 1974, s.5).  Nor can the tension between divine law and human law be got rid of by simply denying divine law.  Secular authority may try to deny divine law, but it cannot escape religious belief and conscience, which are the human response to that law.  Judges who now try to reconcile this human response to divine law with secular law, while rejecting divine law itself, are likely to end just as clumsy and confused as their predecessors were in the Dibdin case.