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Tag: Revised canons

Apostolicae Curae 1896: A Vicar is not a Catholic Priest

This year marks the 125th anniversary of the famous (or infamous) papal letter concerning Anglican Orders. The centenary in 1896 was commemorated by an impressive collection of essays contributed by distinguished Anglican and Roman Catholic commentators, and edited by R William Franklin (‘the Centenary Essays’). This publication included English translations of both Apostolicae Curae and Saepius Officio, the Anglican response thereto.

Pope Leo XIII

Gioacchino Vincenzo Pecci (1810-1903) was elected Pope in 1878, and took the name Leo XIII. The choice of name presaged a confident and ambitious policy of advancing the position of the Church – and the Pope – in the hostile and atheistic modern world.

Despite physical frailty, he reigned for a quarter of a century (nearly as long as St. John Paul II) and lived longer than any of his predecessors. His aristocratic dignity, personal austerity, immense learning and political wisdom commanded the respect of his contemporaries. (Perhaps helped by an uncanny physical resemblance to Voltaire.) He easily outshone the unimpressive Head of the newfangled Kingdom of Italy. The latter grumbled peevishly that ‘[people] … come to see him, not me. It is he who still rules in Rome; I have only the edge of the chair to sit on’ (D.A Binchy, Church and State in Fascist Italy, OUP 1941, p.34).

Leo XIII’s greatest encyclical, Rerum Novarum (1891), on the treatment of workers and their families, is moving to read and the cornerstone of modern Catholic social teaching:

‘To defraud anyone of the wage due him is a great crime that calls down avenging wrath from Heaven … workers are not sufficiently protected against injustices and violence … their property, being so meagre, ought to be regarded as all the more sacred’ (para 32).

He also shaped the intellectual life of the modern Church in 2 encyclicals

(1) Aeterni Patris (1879) concerned the study of theology, and the correct relationship between faith and reason. St Thomas Aquinas is commended as a role model for scholars, but the scholastic method is not compulsory. On the contrary, any scholastic thesis of ‘too great a subtlety’, or which is ‘improbable’, should not be followed (para 31).

(2) Providentissimus Deus (1893), on the Bible and the ‘historical’ method of interpretation. Biblical accounts of natural events may be accepted as ‘figurative’ and not literally true. But the Bible must be studied holistically. Heresy is essentially the result of reading particular Biblical passages out of their context. In studying the Bible, scholars should ‘by all means … make use of … apposite erudition of an external sort’ (para 13), and even non-Catholic commentaries may be studied, though caution is required (para 15).

Another 2 encyclicals should be required reading for all students of ecclesiastical governance

(1) Immortale Dei (1885), on the relationship of the Church to international law, and

(2) Satis Cogitum (1896), which explains the Apostolic constitution of the Church, and the relationship between the Pope and the bishops (and anticipated the teaching of the Second Vatican Council on this subject).

Leo XIII’s interactions with ‘the noble people of England’, as he described them, were generally happy. One of his first acts as Pope was to confer the Red Hat on Newman, vindicating the latter’s reputation after decades of Roman suspicion and hostility. As a young diplomat he had visited London and been received by Queen Victoria. As Pope he opposed the nationalist cause of Catholic Ireland. (His experience of its anti-clerical Continental equivalents would not have disposed him to favour it.) No doubt grateful for this support, the Queen even signed herself ‘de votre saintete la fidele amie‘, in a letter to him on the Golden Jubilee of his priesthood in 1887 (Binchy, p.33). Shortly before his death, he welcomed her son, King Edward VII, to the Vatican – the first ever meeting between the Successor of Peter and the Supreme Head of the Church of England.

Apostolicae Curae

However, in the context of Anglican – Roman Catholic relations, Pope Leo is now remembered only for his controversial conclusion that

‘ordinations performed according to the Anglican rite have been, and are, completely null and void’ (para 36).

The ‘Anglican rite’ is that contained in the Ordinal, which was first authorised in 1549.

The Pope gave 3 reasons for this withering conclusion:

(1) Custom, ‘the best interpreter of law’ (para 16). His predecessors had always refused to recognise Anglican Orders. Anglican clergy who wish to become Catholic priests were and are required to be ordained again. Yet the Sacrament of Orders cannot be repeated any more than Baptism. Therefore, if Anglican Orders were valid, ‘it was … quite impossible that the Apostolic See should tacitly allow or tolerate such a custom [of reordination]’. The Roman custom of reordination proves that the Anglican rite is not effective to confer the Sacrament.

(2) Intention. The very introduction of the 1549 Ordinal indicated a repudiation of Catholic priesthood. If the Church of England had intended to keep the Catholic priesthood it would have kept the mediaeval ordination rite, not introduced a new rite.

(3) Form. The Anglican Ordinal ‘ha[s] been deliberately stripped of everything which … sets forth the dignity and functions of the priesthood’ (para 27). This means that it lacks the form of the Catholic Sacrament.

In the original 1549 Ordinal, the ordination formula was merely ‘Receive the Holy Ghost’, with no explicit reference to priesthood. The clarifying words ‘for the office and work of a priest’ were only added in 1662, but this came too late to repair the defect of form, and ‘rather proves that the Anglicans themselves had recognised that the first form had been defective and unsuitable’ (para 26).

Saepius Officio

The then Archbishops of Canterbury and York, Temple and Maclagan, replied to Apostolicae Curae with a letter of their own, Saepius Officio (1897), an encyclical addressed ‘to the whole Body of Bishops of the Catholic Church’, rather than to the Pope personally.

Unsurprisingly, they rejected both the conclusion of ‘our Venerable Brother’ (para 3), and his reasons therefor

(1) Custom. The Holy See did not unequivocally reject the 1549 Ordinal during the brief revival of its authority over the English Church in the reign of Queen Mary Tudor (1553-1558). Papal instructions concerning the 1549 Ordinal ‘are imperfectly known’ (para 6). Of the clergy ordained according to that rite ‘some, and perhaps the majority, remained in their benefices without reordination’, though it is conceded that some clergy were reordained (‘how slippery and weak the judgment of the Church of Rome has been in this matter’ – not at all a good interpreter of law).

(2) Intention. Merely reforming the ordination rite does not amount to a repudiation of Catholic priesthood: ‘the intention of the Church must be ascertained … from its … definite pronouncements … not from its omissions and reforms’ (para 8). So far from repudiating Catholic priesthood, the Preface to the Ordinal manifests the intention that ‘these Orders of ministers in Christ’s Church; Bishops, priests and deacons … may be continued … in the Church of England …’ (cf para 20).

(3) Form. The validity of an ordination rite cannot be decided solely by reference to the contemporary Roman rite. Different forms of ordination have been practised at different times and places in the Church’s history, without any suggestion that the ordinations are invalid. Eastern ordination rites differ from the Latin rite, yet they have always been accepted as valid (cf para 20).

Moreover the Roman rite itself has changed over time. The references to priesthood to which the Pope attached such importance were not even Roman in their origin, but ‘Gallican embellishments … [with] added ceremonies borrowed from the Old Testament in order to emphasise the distinction between people and priests’ (para 19). The earliest Roman rite, like the 1549 Ordinal, made no explicit reference to priesthood. The compilers of the Ordinal ‘went back almost to the Roman starting-point’, i.e the early Roman rite was itself a model for the Anglican rite.

Fortified by these arguments, Their Graces delivered a robust retort to Leo XIII:

‘in overthrowing our Orders, he overthrows all his own, and pronounces sentence on his own Church’.

(Upon reading Saepius Officio, the Pope is said to have remarked that he wished his cardinals could write such good Latin. But he did not change his mind about Anglican Orders.)

A Century On

Despite the Archbishops’ professed indifference to Apostolicae Curae (‘we are not at all disturbed by the opinion expressed in that letter’ (para 2)), Leo XIII’s rejection of its Orders did touch a raw nerve in the Church of England. According to Paul Bradshaw it prompted ‘a firm desire to make 20th century revisions of Anglican ordination rites impregnable against any further attacks on the same grounds … throughout the processing of drafting [modern rites] the shadow of Apostolicae Curae hung over the drafters’. Apparently the drafters themselves admitted as much (Centenary Essays, p.75).

Apostolicae Curae also seems to have encouraged the involvement of ‘Old Catholic’ bishops in Anglican ordinations. The Old Catholics broke away from the Roman Catholic Church in the 18th and 19th centuries, but their Orders are nevertheless recognised by Rome, and they themselves recognise Anglican Orders. For this reason Old Catholic bishops have been invited to join in the laying on of hands of new Anglican bishops. Apparently all Church of England bishops can now claim an Old Catholic pedigree (p.70).

One Anglican commentator suggested optimistically that ‘the participation of Old Catholic bishops in Anglican consecrations during this [20th] century has meant that there has been a confluence of traditions through the mutual co-consecrations of Anglican and Old Catholic traditions … offer[ing] the Roman Catholic Church an opportunity to place [Apostolicae Curae] against the background of a broader canvas …’ (p.27).

However, Father Edward Yarnold SJ poured scorn on the practice: ‘it presupposes a crude ‘pipeline’ … it would be crassly materialistic to envisage Apostolic Succession as an unbroken chain of physical contact … reaching back to one of the Apostles’ (p.70). He evidently did not think much of Old Catholic bishops, dismissing them as ‘unattached dilettanti … episcopi vagantes‘ (pp.70-1).

Yet for all the Anglican defensiveness, Apostolicae Curae seems to have caused greater difficulty for the Catholic Church itself. It jarred painfully against the heady optimism and friendly engagement of the postwar ecumenical era. A Catholic commentator related that ‘Catholic theologians who have been engaged in ecumenical dialogue with members of the Anglican Communion are now considerably embarrassed by Leo XIII’s negative findings’ (p.123).

Nor is the embarrassment purely social. Modern research, impressively surveyed in the Centenary Essays, seems to vindicate Saepius Officio completely. Leo XIII’s criticisms of the Anglican Ordinal are now apparently destitute of scholarly support.

Thus a Catholic contributor observed of the Centenary Essays that ‘None of these papers has defended the contemporary adequacy of Apostolicae Curae‘s historical reasoning or theological arguments’ (p.123). Another Catholic was particularly critical of his late Supreme Pontiff: ‘Leo XIII was trapped in … a defective theology of tradition … indefinitely delaying the reconciliation of the Churches’ (p.47).

It is therefore not surprising that the suggestion ‘Is it not now time … to reopen the issue of Anglican Orders?’ (p.123) came to enjoy widespread Catholic support (even from some cardinals, apparently).

Papal Teaching Authority

The suggestion may seem plausible, in view of the scholarly consensus. But it faces a fundamental difficulty. Leo XIII was fully aware of the modern intellectual challenges to Catholic teaching (hence his 2 encyclicals mentioned earlier). He knew very well that he would be accused of being out of date and ‘trapped in tradition’. (Such criticisms of papal teaching are nothing new.) Yet in Apostolicae Curae he declared unequivocally that the question of Anglican Orders may not be reopened:

‘the present Letter and the whole of its contents cannot at any time be attacked or impugned on the ground of … any defect whatsoever … it shall be now and for ever in the future valid and in force, and … to be inviolably observed … by all persons …’ (para 40).

Canon law makes clear that Catholic faith demands trust in papal teaching. Canon 752 of the 1983 Code provides that

‘a religious submission (obsequium) of intellect and will is to be given to any doctrine which the Supreme Pontiff … declare[s] upon a matter of faith and morals … Christ’s faithful [must] avoid whatever does not accord with that doctrine’.

The official Latin word obsequium connotes obedience, not mere respect. Canon 754 also obliges the faithful ‘to observe the constitutions and decrees … issue[d] for the purpose of proposing doctrine or proscribing erroneous opinions: [especially] those published by the Roman Pontiff ….’.

So does acceptance of Apostolicae Curae mean retreating into an anti-intellectual papalism? Simply ignore the inconvenient modern research. Rome has spoken, the case is closed. Peter has spoken through Leo. No, that would be both absurd and wrong. Faith must not be divorced from reason (as Leo himself made clear).

Yarnold pointed the way out of the apparent Catholic difficulty (even if he was unaware that he did so), when he asked rhetorically ‘what does it mean to say [Anglican] Orders are invalid?’ (p.73).

This is the right question to ask. Leo XIII’s well-known phrase ‘absolutely null and void’ obviously has a negative and dismissive sound. It would not, presumably, appear in a papal document today. But never mind how it sounds. What does it actually mean?

It is argued that it means simply this: a vicar is not a Catholic priest.

If Leo XIII’s conclusion is understood thus, the difficulties with Apostolicae Curae fall away. Acceptance of it requires minimal, if any, Catholic obsequium. It requires no rejection of modern scholarship. The conclusion does no more than state an obvious – blindingly obvious – fact.

The fact was not obvious in the 1550s. This would explain any Roman inconsistency towards clergy ordained according to the 1549 Ordinal. Even today, of course, it is not obvious to quite everyone. Anglican clergy will say that they are Catholic priests. They are just not Roman Catholic priests. But it can hardly be denied that ‘the noble people of England’, including the majority of faithful Anglican churchgoers, recognise no distinction between ‘Catholic’ and ‘Roman Catholic’.

Apostolicae Curae closed the question ‘is a vicar a Catholic priest?’ (of course not), but not the question ‘why is a vicar not a Catholic priest?’. (Or perhaps, ‘why is a vicar not a priest in the Roman Catholic sense?’.) The modern reaction to Apostolicae Curae suggests that the question is much in need of fresh study.

To answer this question, it is necessary to distinguish between

(1) the constitutional structure of the Anglican ordained ministry (which is indeed Catholic) and

(2) its function (which is not).

To make this distinction, it is in turn necessary to read the Ordinal in the context of the other 2 ‘historic formularies’ of the Church of England, the Book of Common Prayer and the 39 Articles. The Ordinal defines the structure of Anglican ministry. The other 2 formularies define its function.

Anglican Ministry: Catholic Structure, Protestant Function

What is a priest? Jean Guitton (a Catholic) observed that ‘since the Reformation, the idea of the priest [has] been put in question. The whole Reformation centres around that’ (Dialogues (1967), English translation 1968, p.242).

The unique and essential function of the Catholic priest is to represent Christ. The priest is said to act in persona Christi. Canon 901 affirms that the priest ‘in the person of Christ can confect the Sacrament of the Eucharist’.

This function is closely linked to the mystery of the Crucifixion, hence to Christ’s Sacrifice. At the altar the priest re-presents Christ’s Sacrifice upon the Cross. Canon 897 refers to ‘the Eucharistic Sacrifice … in which the Sacrifice of the Cross is for ever perpetuated’. Canon 899 affirms that ‘In [the Eucharist] Christ the Lord, through the ministry of the priest, offers Himself, substantially present under the appearance of bread and wine, to God the Father …’.

The classic Protestant view of this priestly function is that it is blasphemous. A mere man cannot represent God, or mediate between God and man.

The pejorative English word impersonate may bring the Protestant objection into sharp focus. The word implies pretence and deceit. A fraudster impersonates someone else in order to practise a criminal deception. An actor or comedian does so to amuse an audience. To impersonate Christ is both fraudulent and a blasphemous mockery. Thus Western Christendom divided over a function essential to Catholics but intolerable to Protestants.

However, although united in their rejection of the ‘impersonating’ function of the priest, Protestants could not agree on how to reform the Church’s ministry. Some were so distressed by the blasphemy that they sought to eradicate all trace of Catholic priesthood, root and branch. This meant abolishing its structure as well as its function.

The Church of England, of course, declined to follow this fundamentalism. It was more sensitive to history. (Newman once observed that ‘to be deep in history is to cease to be a Protestant’.) The Preface to the Ordinal states that the Orders of bishop, priest and deacon have existed in the Church ‘from the Apostles’ time’. Therefore they should not be abolished but continued.

By retaining the Catholic ministerial structure, the Church of England distanced itself from other reformed Churches. The modern British Constitution bears witness to this. There is much talk now of Scottish independence. This refers to the secular states of England and Scotland, which were united by the Act of Union 1707. However, the ecclesiastical states of England and Scotland, i.e their Churches, have always been strictly independent of each other. Their separation, though little discussed, is a fundamental constitutional principle.

There are no bishops or priests in the Church of Scotland. It has a Presbyterian ministerial structure. The Anglo-Scottish Union was, in part, a religious settlement. Macaulay observed that ‘the nations [of England and Scotland] are one because the Churches are two’.

The Preface to the Book of Common Prayer records the Church of England’s tenacious adherence to its Catholic ministerial structure. The structure was triumphantly reasserted in 1662 ‘upon His Majesty’s [King Charles II’s] happy Restoration’, following ‘the late unhappy confusions’ and ‘usurped powers’ of the Cromwell era. The clarifying words of ordination ‘for the office and work of a priest’ were part of this reassertion.

The 24th August 1662 has been described ironically as ‘the St Bartholomew’s Day massacre’. The Act of Uniformity came into force on that day. All clergy who dissented from it were summarily ejected from their benefices (s.3), (though nobody was literally massacred, unlike the French Protestants in the previous century). Any would-be minister who lacked episcopal ordination was thenceforth ineligible for ecclesiastical preferment, and was also forbidden ‘to consecrate and administer the Holy Sacrament of the Lord’s Supper’ (s.10).

The Church of England undoubtedly bears a closer resemblance to the Catholic Church than do most other Reformed Churches, on account of its ministerial structure. Without this structure, the question of Anglican Orders would never even have arisen. (Certainly there does not seem to be much discussion of the validity of Scottish Orders!)

This resemblance to the Catholic Church was acknowledged by the Second Vatican Council, which met in the 1960s. It held that ‘Among those [Reformed Churches] in which some Catholic traditions and institutions continue to exist, the Anglican Communion occupies a special place’ (Decree on Ecumenism, Unitatis Redintegratio 1964, para 13).

The then Cardinal Ratzinger wrote of the Anglican Communion that ‘the survival of the episcopate retains the fundamental structure of the pre-Reformation Church [which] assures a fundamentally positive attitude to the doctrinal tenets of the pre-Reformation Church’ (Church, Ecumenism and Politics (1987), English translation 1988, p.73).

On this modern Catholic view, then, the Anglican ministry is a sympathetic and respectful reminder of the pre-Reformation priestly function, on account of its Catholic structure. As such, it is a basis for ecumenical hope and engagement. (It also makes possible an imaginative reconstruction of the priestly function in Anglo-Catholic worship.)

Nevertheless, though it retained the Catholic ministerial structure, the Church of England, with the other Reformed Churches, did repudiate the function that originally went with it, that of representing or impersonating Christ.

The Priestly Function and the Formularies

It is true that the Ordinal itself contains no explicit repudiation of the Catholic priestly function. As we have seen, Pope Leo XIII’s arguments for an implied repudiation ran into strong counter-arguments.

However, the counter-arguments suffer from the same weakness as Apostolicae Curae. They consider the Ordinal only in isolation, or in the context of other, and earlier, ordination rites. They ignore the relationship between the Ordinal and its contemporaries, i.e the other Anglican historic formularies.

As canon A4 of the revised canons points out, the Ordinal is ‘annexed’ to the Book of Common Prayer. It must therefore be read in the context of the Prayer Book. And the Prayer Book itself must be read in the context of the 39 Articles.

The words of the 1662 Ordinal ‘for the office and work of a priest’ make clear that the priest is ordained to a function, not to a structure. But they also beg the question. What is the function of the priest? The Ordinal is concerned with ministerial structure. The ministerial function is determined by the other 2 formularies.

These 2 formularies repudiate the Catholic priestly function explicitly and unequivocally. They prove the obvious fact that Apostolicae Curae, whatever its limitations, sought to point out.

The 39 Articles, the most overtly Protestant of the formularies, contains a full-throated denunciation of

‘the sacrifices of Masses, in the which … the priest did offer Christ for the quick and the dead, to have remission of pain or guilt, [are] blasphemous fables and dangerous deceits’ (Article 31).

On the contrary, Christ’s Sacrifice is ‘once made … that perfect redemption … for all the sins of the whole world’. His Sacrifice is ‘finished upon the Cross’. It cannot be re-made or perpetuated by the priest.

In the Eucharist the consecrated bread and wine have ceased to be ordinary food. They are ‘the sign or Sacrament’ of the Body and Blood of Christ (cf Article 29). However, they are not the Body and Blood of Christ per se. ‘The Body of Christ is given, taken and eaten … only after an heavenly and spiritual manner. And the mean whereby the Body of Christ is received and eaten … is faith‘ (Article 28). This again denies the mediating or in persona Christi function of the priest.

The Prayer Book echoes the teaching of the Articles. The Eucharistic Prayer recalls Christ’s ‘full, perfect and sufficient Sacrifice, oblation and satisfaction, for the sins of the whole world’. The Eucharist is ‘a perpetual memory of that His precious death, until His coming again’. The consecrated elements are administered to the communicant with the words ‘feed on [Christ] in thy heart by faith‘.

The final rubric of the Communion Service is even more explicit: ‘the Sacramental Bread [and] Wine remain still in their very natural substances, and therefore may not be adored … for that were idolatry …’.

Thus the communicant who receives the consecrated bread and wine with a faithful disposition thereby receives the Body and Blood of Christ in his heart, by a metaphysical grace.

The 2 Archbishops pointed out in Saepius Officio that the Communion Service does refer to a Eucharistic Sacrifice, notwithstanding the deprecatory reference to ‘the sacrifices of Masses’ in the Articles. The Anglican Eucharist is not merely ‘a bare commemoration of the Sacrifice of the Cross’:

‘[1] we offer a ‘Sacrifice of praise and thanksgiving

[2] then we set forth and reproduce before [God] the Father the Sacrifice of the Cross …

[3] finally we offer the sacrifice of ourselves [‘ourselves, our souls and bodies’] to the Creator … a sacrifice which we have already signified by the oblations of His creatures [of bread and wine]’ (para 11)

So what is the Anglican priestly function, and how does it differ from the Catholic equivalent?

It is argued that the critical difference is that the Anglican priest acts in persona Ecclesiae, in the person of the Church, not in persona Christi. He cannot act in persona Christi, because Christ’s Sacrifice is once for all, finished. Christ is the only true Sacerdos.

There is an Anglican Eucharistic sacrifice, but again, that sacrifice is radically different from the Catholic equivalent. The Anglican priest does 2 things at the altar (or ‘holy table’, as it is officially described in the revised canons):

(1) he recalls the Church, in the presence of God, to the once-for-all Sacrifice of Christ and

(2) he offers the Church’s own sacrifice of praise and thanksgiving, and also its practical self-sacrifice, in response to Christ’s Sacrifice.

Recalling Christ’s Sacrifice, and responding to it. The Anglican priestly function is good and edifying as far as it goes. But it still repudiates the Catholic function. It refers to 2 distinct sacrifices, that of Christ and that of the Church. The Catholic Eucharistic Sacrifice is indivisible, one and the same as the Sacrifice of Christ.

Thus, despite their similar constitutional structures, the Anglican priest and the Catholic priest are in different, indeed opposite, places. The function of the Catholic priest is to bring Christ to the Church. The function of the Anglican priest is to bring the Church to Christ.

This radical difference of function answers the question of Anglican Orders. A Catholic priest is a Catholic priest because he has been ordained to bring Christ to the Church. An Anglican priest is ordained to bring the Church to Christ. Logic dictates the inevitable conclusion: an Anglican priest is not a Catholic priest.

Theological opinion has, of course, changed considerably since the Reformation. Nobody in the Anglican Church now suggests that the Catholic priestly function is blasphemous and fraudulent. And since Victorian times there have been Anglo-Catholic clergy who genuinely and devoutly believe the Catholic doctrine of priesthood, and believe that they exercise the Catholic priestly function in the Eucharist.

However, the Anglican priesthood and the Anglican Eucharist remain constituted by the historic formularies. They are not determined by current theological opinion, nor by the opinion of the individual vicar (however devoutly held).

The Anglican priestly function is now mostly exercised according to modern liturgies, not the Book of Common Prayer. However, these liturgies are required by law to be doctrinally consistent with the historic formularies (Worship and Doctrine Measure 1974, s.4(1)). They do not in terms reinstate the Catholic priestly function.

Celebrating the Lord’s Day: The Ecclesiastical Regulation of Sunday

‘The Lord’s Day … is ever to be celebrated as a weekly memorial of our Lord’s Resurrection … particularly by attendance at Divine Service …’ (canon B6(1))

This blogpost is intended merely to provide a coherent narrative of the subject, rather than to say anything new. It therefore makes points that are discussed in more detail elsewhere on the blog.

The restrictions on Divine Service imposed as a result of the coronavirus situation are not discussed here. The legal basis of such restrictions – if they have one – is secular, not ecclesiastical.

If the restrictions are gradually being relaxed, now is arguably an appropriate time to pay renewed attention to the Sunday ecclesiastical laws.

Church Attendance

In the case of Jarrett v Steele (1820) 161 English Reports 1290, Sir John Nicholl, Dean of the Arches, held that ‘the possession of the [parish] church is in the [incumbent] and the churchwardens …’. In a later case he asserted the incumbent’s priority over the churchwardens. The incumbent ‘has, in the first instance, the right to possession of the key [to the church], and the churchwardens have only the custody of the church under him’ (Lee v Matthews (1830) 162 English Reports 1119 at p.1120).

Parishioners have rights over the church too. In Cole v Police Constable 443A (1936) 3 All England Reports 107, Mr Justice Goddard (later Lord Chief Justice Goddard) held that ‘the parishioner’s right to attend his parish church … may be described as a common law right. The church, by being dedicated to sacred uses, is being dedicated to the use of parishioners to be there for [public] worship …’. However, Jarrett v Steele held that ‘no person has a right to enter [church] when it is not open for Divine Service’, e.g for private prayer.

Thus all legal rights over the parish church serve the same purpose – the celebration of Divine Service. The rights of the incumbent and the churchwardens give effect to the parishioners’ right.

The churchwardens are responsible for managing church attendance. Their duty is ‘[to] maintain order and decency … during the time of Divine Service’ (canon E1). The stave, symbol of the churchwarden’s office, alludes to this function of keeping order. Churchwardens are assisted in their task by the parish sidesmen (canon E2).

Thus the churchwardens arrange seating (canon F7(1)). Parishioners, as is their right, enjoy priority over non-parishioners, who attend only on licence (cf canon F8(3)). Legal rights to occupy particular pews are still possible. The incumbent decides who gets to sit in the chancel.

If there is serious disorder, the churchwardens may require assistance from the secular law. ‘Riotous, violent or indecent behaviour’ in church is a criminal offence (Ecclesiastical Courts Jurisdiction Act 1860, s.2). The bishop has power (virtually never used) to exclude ‘notorious offenders’ from Holy Communion (canon B16). However, the exclusion of a parishioner from Divine Service will require a secular injunction, because such exclusion deprives him of a legal right.

Divine Service is, of course, the responsibility of the incumbent (cf canon C24). Just as the churchwardens are assisted by sidesmen, so the incumbent may be assisted by other clergy (e.g an assistant curate) and by licensed lay ministers. If the benefice is part of a team or group ministry, the responsibility will be shared with the other ministers of the team or group (Mission and Pastoral Measure 2011, ss.34 and 35).

The churchwardens have no direct responsibility for Divine Service, even if the incumbent fails in his. Theirs is ‘an office of observation and complaint, but not of control, with respect to Divine Worship … if the minister introduces any irregularity into the service, they have no authority to interfere, but they may complain to the ordinary’ [i.e the bishop] (Hutchins v Denziloe and Loveland (No 1) (1792) 161 English Reports 514, at p.516).

Only if there is a vacancy in the benefice, with no incumbent or licensed priest-in-charge, may the churchwardens acquire responsibility for the provision of Divine Service, and even this depends on the bishop’s direction or request (cf Mission and Pastoral Measure 2011, s.86(2): Dale’s Law of the Parish Church (7th edition 1998, p.73).

In discharging their respective functions, the incumbent and churchwardens must have ‘due regard’ to the ‘safeguarding’ guidance issued by the House of Bishops (Safeguarding and Clergy Discipline Measure 2016, s.5(1)).

Nowadays the time of Divine Service is invariably advertised on a notice placed near the church door (and online). However, a bell is the traditional mode of announcement. (In the old days many parishioners might be unable to read a notice.) The church should therefore have ‘at least 1 bell to ring people to Divine Service’ (canon F8). The bell usually starts ringing 5 or 10 minutes before Divine Service begins. All other bellringing is a matter for the incumbent’s licence. Canon F8 confirms that ‘No bell … shall be rung contrary to the direction of the [incumbent]’.

Divine Service

Provision. Canon B11 and canon B14 require services of Morning and Evening Prayer, and of Holy Communion, on all Sundays. Service must be held ‘in at least 1 church in each benefice or … plurality [of benefices]’. These requirements may be dispensed with for ‘good reason’, but Sunday worship must not be discontinued altogether, even on an occasional basis. The incumbent must provide at least 1 Sunday service.

The revised canons make similar provision for Divine Service in the cathedral, which is the parish church of the diocese (canons B10 and B13). The Cathedrals Measure 2021 empowers the chapter to ‘order the worship of the cathedral’ (s.11(1)(a)). The dean must ‘ensure that Divine Service is duly performed’ (s.12(2)(a)).

Divine Service in a shared building will be regulated by the sharing agreement, which agreement ‘may dispense, to such extent as may be necessary, with the requirement to hold certain [Sunday] services …’ (Sharing of Church Buildings Act 1969, s.4(2)).

Divine Service in an extra-parochial place, such as a college or hospital, will be regulated by the bishop’s licence to the chaplain thereof (Extra Parochial Ministry Measure 1967, s.2).

In a mission initiative, Divine Service will be determined by the bishop’s order constituting the mission (Mission and Pastoral Measure 2011, s.80(13)).

Sunday Communion in private chapels (as distinct from extra-parochial places) is discouraged, ‘so that the residents in the said house may resort to their parish church and there attend Divine Service’ (canon B41(1)).

Form. Church of England services are authorised by canon B1. Canon B1 services comprise

(1) Prayer Book services (which date from 1662) and

(2) modern services.

In view of his responsibility for Divine Service, the incumbent is expected ‘to have a good understanding of the forms of service used …’ (canon B1(2)). However, the incumbent’s choice of service requires the agreement of the parochial church council (‘the PCC’) (canon B3(1)).

Only canon B1 services may be used, subject to 2 very limited exceptions

(1) Canon B5 gives the incumbent discretion to make ‘variations which are not of substantial importance in any [canon B1 service]’. And the incumbent can introduce liturgical material of his own ‘on occasions for which no provision is made under [canon B1]’.

There is unlikely to be much scope for such material in ordinary Sunday worship. And the discretion conferred by canon B5 is still subject to the ‘pastoral guidance, advice or directions’ of the bishop.

(2) If an ecumenical scheme is in force, a special ecumenical service may be held (canon B43(8)).

Language. The normal language of Divine Service is English, but the House of Bishops may approve non-English translations of canon B1 services (canon B42). Use of such a translation requires the permission of the local bishop. Divine Service may be performed in sign language. Latin services are permitted in universities, public schools and ‘such other places of religious and sound learning as custom allows’.

Vesture. The incumbent and other officiating ministers are generally required to be robed for Divine Service, though the law on this important matter has recently been – rather clumsily – amended.

Canon B8, which is entitled ‘Of the vesture of ordained and [other] authorised ministers’ (so presumably lay ministers as well), now provides that the usual liturgical vesture is

(1) surplice or alb and

(2) scarf or stole.

The cassock is no longer mentioned, but is presumably implied when the surplice is worn. (At any rate a surplice looks rather odd without a cassock beneath it.) Nor does canon B8 stipulate that the stole may be worn only by ordained ministers, not lay ministers. Cassock and alb are now often combined in a single vestment.

‘When a stole is worn other customary vestments may be added’, i.e the catholic eucharistic vestments for Holy Communion, or a cope for special occasions.

However, canon B8 goes on to provide that ‘some other form of dress’ – presumably a reference to ordinary clothes – is possible, but only if the incumbent ‘has ascertained [i.e made certain] by consultation with the PCC that [such] other form of dress will be acceptable’. Even if so acceptable, ordinary clothes must still be ‘suitable to [the] office … a sign and mark of … holy calling and ministry, as well to others as to [regular worshippers]’ (canon C27).

A change of robes (e.g assuming or discontinuing eucharistic vestments) likewise requires the consent of the PCC.

Any disputes over the incumbent’s sartorial appearance must be referred to the bishop ‘whose direction shall be obeyed’.

Ornaments. Canon B8 is the modern replacement of 1 half of the famous Ornaments Rubric in the Book of Common Prayer, ‘the ornaments of the minister’. The other half – ‘ornaments of the church’ – are not regulated by the revised canons. Thus cross and lights on the altar, colourful altar frontals, hangings, flowers and suchlike will be regulated, if at all, by the faculty jurisdiction of the ecclesiastical courts.

Ceremonial. The revised canons are also silent about ceremonies, i.e ceremonial acts performed during Divine Service (e.g processions, ‘smells and bells’, elevation of the consecrated Bread and Wine, the Sign of the Cross). It is therefore argued that such actions are at the discretion of the incumbent. The incumbent’s discretion will extend to the appointment of altar-servers or acolytes to assist with ceremonies.

However, the incumbent’s freedom will be limited by any directions or rubrics contained in the form of service that is being used, and by the requirement that all worship must be ‘reverent and seemly’ (cf canon B5(3)).

Music, like ceremonies, is largely a matter for the incumbent’s discretion, as regulated by canon B20. The incumbent must ‘pay due heed to his [organist’s] advice’, but always retains ‘the final responsibility and decision’.

The incumbent must ensure that all musical items ‘are appropriate, both the words and the music, to the solemn act of worship … and to banish all irreverence’. The chosen music must also be appropriate ‘to the congregation‘. This may refer to the culture or churchmanship of the particular parish.

However, there seems to be no requirement for a parish church to have any music at all. Neither the organ or any musical instrument is identified as one of the ‘things appertaining to churches’ prescribed by section F of the revised canons.

The musical position of cathedrals is very different. In St John’s, Margate (1794) 161 English Reports 524, Sir William Scott held that ‘In cathedral churches [organs] would … be deemed necessary and the ordinary [bishop-visitor] may compel the dean and chapter to erect an organ …’ (p.525). All cathedrals are now required to ‘provide for the appointment of a person having the function of supervising music …’ (Cathedrals Measure 2021, s.5(1)(g)), aka the choirmaster.

Posture. Modern ecclesiastical law can do little to regulate the conduct of lay worshippers, other than by way of teaching or exhortation (like canon B6(1), quoted above). However, canon B9(2) provides that worshippers ‘shall have regard to the rubrics of the service and locally established custom in the matter of posture‘, but no longer insists upon the neglected practices of

(1) kneeling and

(2) ‘giving due reverence to the Name of the Lord Jesus’.

Publication. The incumbent must announce any important Holy Days that will fall during the coming week (e.g a major saint’s day, Ash Wednesday, Ascension Day) (canon B7). The preparation of a new electoral roll must be announced (Church Representation Rules 6(4)).

Banns of marriage must also be published at the principal Sunday service, using a prescribed form of words. They must be published from a special register, ‘and not from loose papers’ (Marriage Act 1949, s.7(3)). Banns may normally be published only by an ordained minister, but in certain limited cases a layperson may do so (s.9).

It is argued that the incumbent is bound to publish a pastoral letter or other communication to the parishioners from the bishop, who is ‘the chief pastor of all that are within his diocese’ (canon C18(1))

All publications not required by law will be at the incumbent’s discretion.

Collections are generally taken at Sunday services. The incumbent and PCC now ‘jointly … determine the objects to which all moneys … collected in church shall be allocated’ (PCC (Powers) Measure 1956, s.7(iv)).

Registration. The church must keep a register (possibly in electronic form), in which ‘shall be recorded every service of public worship, together with the name of the officiating minister and of the preacher … the number of communicants [at Holy Communion], and the amount of any …. collections and, if desired, notes of significant events’ (canon F12). It is not clear who does the recording, the incumbent and / or the churchwardens.

However, the register of banns must be signed by ‘the officiating clergyman, or by some person under his direction’ (1949 Act, s.7(3)).

Word and Sacrament

Divine Service is centred around

(1) the Bible and

(2) the Holy Communion, or Eucharist.

Roman Catholic law aptly describes Bible and Eucharist as the ‘twofold table’. Word and Sacrament. The written Word and the Word made flesh.

Ecclesiastical law regulates 4 aspects of the ministry of the Word, albeit rather perfunctorily. However, closer study of these 4 aspects might improve the quality of Divine Service.

(1) Bible. Canon F9 requires the provision of ‘a Bible’, or rather 2 Bibles: 1 for the incumbent and another ‘to be kept in the pulpit for the use of the preacher’. The incumbent’s Bible must include the Apocrypha, and must be ‘of large size’.

Apart from this, the revised canons seem to make no provision for the use of the Bible in Divine Service. In particular there is no provision for the approval of particular translations or versions of the Bible, so presumably any version will be acceptable (unless it contravenes the requirement of reverence) and a matter for the incumbent’s discretion. The Prayer Book (Versions of the Bible) Measure 1965 permits the use of different versions of the Bible in certain circumstances, but this applies only to Prayer Book services, not modern services.

(2) Sermon. Canon B18(1) provides that at least 1 sermon must be preached on Sunday, ‘except for some reasonable cause approved by the bishop’. The liturgical publication Common Worship suggests excitingly that ‘the sermon [can] include … the use of drama, interviews, discussion, audio-visuals’.

Licensed lay ministers may now preach, as well as clergy (canon E4 and E7). Canon B18(2) also provides that ‘another person’ besides an ordained or lay minister may preach at the invitation of the incumbent, though the permission of the bishop is required, either specifically or in accordance with diocesan regulations.

(3) Sunday School. The incumbent is required to provide a Sunday school for ‘children and young people’ (canon B26), i.e persons too young to profit from the sermon. The incumbent may teach the children personally, or appoint ‘some godly and competent persons’ (i.e Sunday school teachers) to do so.

The Sunday school curriculum must be based on

(a) the Bible

(b) the Book of Common Prayer and

(c) ‘especially’ the Church Catechism.

(4) Assisted Self-Examination. As canon B29(1) notes, Divine Service includes ‘the General Confessions of the congregation and … the Absolutions pronounced by the priest’.

The incumbent is supposed to teach parishioners ‘from time to time’ to prepare themselves to receive Holy Communion, ‘with such preparation as is required by the Book of Common Prayer’ (canon B15(2)).

The Prayer Book sternly exhorts the faithful ‘to search and examine your own consciences … to bewail your own sinfulness, and to confess yourselves to Almighty God, with full purpose of amendment of life …’.

General public confession and absolution following personal self-examination may not be sufficient in a particular case. Canon B29(2) therefore allows that ‘If … any [person] … requires further comfort or counsel, let him come to some discreet and learned minister of God’s Word; that by the ministry of God’s Holy Word he may receive the benefit of absolution, together with ghostly [i.e spiritual] counsel and advice, to the quieting of his conscience …’.

This wording suggests that private confession and absolution are part of the ministry of the Word rather than the Sacrament. An optional form of preparation for the Sacrament, but not a sacrament per se. This is, of course, consistent with Article 25, which denies that ‘penance’ is a sacrament of the Gospel.

Holy Communion begins with the uncovering of the altar or ‘holy table’ (canon F2). The altar is normally covered with a coverlet of ‘silk or other decent stuff’. This is replaced by ‘a fair white linen cloth’ for Holy Communion.

The churchwardens are responsible for providing the bread and wine (canon B17). The bread may be leavened or unleavened. The wine must be ‘fermented juice of the grape’. As the Legal Advisory Commission recently noted, this means that it must have some alcoholic content.

Only an episcopally ordained priest can officiate at Holy Communion in a canon B1 service (canon B12(1)). It is possible for another minister to officiate at a special ecumenical service, but the Anglican faithful must be warned of the lack of episcopal ordination (canon B43(11)).

However, laypeople assist at Holy Communion in various ways. They may read the epistle and the Gospel. As mentioned, a layperson may preach. Licensed laypeople usually assist with the distribution of the Sacrament (canon B12(3)).

Holy Communion comprises 2 distinct rites

(1) the Eucharist, the prayer of thanksgiving in which the bread and wine are consecrated and

(2) the Communion itself, the consumption or ‘reception’ of the consecrated elements.

The priest is the link between these 2 rites. Having celebrated the Eucharist, he must communicate himself (canon B12(2)).

The revised canons do not in terms require Holy Communion to be administered under both kinds. However, canon B17 obliquely refers to this by providing for ‘a sufficient quantity of bread and of wine for the number of communicants that shall … receive the same’ (canon B17(1)).

All Holy Communion services, from the first Book of Common Prayer in 1549 onwards, have required Communion in both kinds for all communicants. They are supported by Article 30, which invokes ‘Christ’s ordinance and commandment’.

The ‘necessitie’ provision in the Sacrament Act 1547 (at s.8) remains on the statute book, and provides a convenient, 500-year-old figleaf of authority for the present practice of withholding the Communion Cup. However, we have argued elsewhere that

(1) this provision applied only to the liturgy in use in 1547, and, though not expressly repealed, was nevertheless impliedly repealed by the subsequent Acts of Uniformity and / or

(2) even if still applicable, it does not apply to the coronavirus situation. (Parliament in 1547 would have described that as a ‘plague’, not a ‘necessitie’.)

The incumbent is responsible for washing the Communion vessels after the celebration (canon F3(2)). However, the revised canons make no provision for the disposal of unconsumed consecrated bread and wine. Reservation of the Sacrament, in an aumbry or tabernacle, though nowadays a near-universal practice and no longer controversial, remains a matter for the faculty jurisdiction.

Baptism, like Holy Communion, should also be administered on Sunday, ‘at, or immediately after, public worship, when the most number of people come together …’ (canon B21). Private baptism, like private Communion, is discouraged, ‘except for grave cause and necessity’ (canon B22(9)). The font is uncovered for baptism, just as the altar is uncovered for Holy Communion (cf canon F1(2)). The baptism must be registered afterwards (cf canon B39(1)).

Baptism founds the right to be admitted to Holy Communion. This right is now regulated by canon B15A. Communicants are expected to ratify their baptismal promises by episcopal confirmation, or at least be ‘ready and desirous’ to be confirmed. The bishop may permit young children to receive Holy Communion, but only if satisfied of ‘adequate provision for [their] preparation and continuing nurture in the Christian life’, a reference to Sunday School (Regulations of 2006). Practising Christians from non-episcopal Churches are admitted to Holy Communion.

The common law right to attend Divine Service is not explicitly linked to baptism in the authorities. However, possession of a baptismal font was originally the legal test that a building was a church, i.e a place of public worship, and therefore subject to the rights discussed earlier. Thus the font may be the foundation of parishioners’ rights over their parish church, even if baptism per se is not.

Reformatio Legum Ecclesiasticarum: Of Martyrs and Mice

‘A Simpler Way of Reforming Church Legislation’ (General Synod Miscellaneous Paper 1103, issued 13th April 2015)

In the mid-20th century the cause of ecclesiastical law reform had a powerful supporter in the person of Archbishop Geoffrey Fisher, Archbishop of Canterbury from 1945 to 1961.  Fisher was not a lawyer, but as a former headmaster he possessed a natural appreciation of the importance of discipline.  As bishop, he had to contend with rebellious ritualists in the liturgical anarchy which followed Parliament’s rejection of the revised Prayer Book in the 1920s.

The commission that eventually produced the 1947 report The Canon Law of the Church of England was appointed before Fisher became Archbishop, but Fisher was apparently the driving force behind the revision of the canons of 1603.

The Archbishop’s interest in ecclesiastical law was not widely shared by his contemporaries.  One commentator was scornful: ‘An extraordinary feature of the Church of England in the post-war years was the fact that, faced … with its mission to the nation and … immense administrative problems, its representative bodies spent such an inordinate amount of time on the revision of the canon law …’ (Paul Welsby, A History of the Church of England 1945-80, OUP 1984, p.41).  Archbishop Fisher, he relates, ‘was probably never happier than when he was spending long hours in drafting canons in exact phraseology’ (p.42).  One dignitary apparently compared ‘canon law’ revision to rearranging the furniture when the house was on fire!

Despite his strong commitment, forceful personality and a lengthy tenure as Archbishop, Fisher’s efforts at law reform enjoyed only limited success.  The revised canons were not finalised until 1969, more than 20 years after the 1947 report and some years after Fisher’s departure from Lambeth Palace.  The late Owen Chadwick described the whole project as ‘a pregnancy that lasted for years and gave birth to a mouse’ (Michael Ramsey, OUP 1991, p.336).  (It must also be admitted that the Church in Wales never adopted Fisher’s canons, choosing to stick to the canons of 1603, and seems none the worse for this.)

Nor was Fisher the first Archbishop of Canterbury to be interested in law reform.  The Submission of the Clergy Act 1533 provided for the appointment of a royal commission with authority ‘to view, search and examine the said canons, constitutions and ordinances provincial and synodal heretofore made’ (s.2).  Archbishop Thomas Cranmer was put in charge of this commission.  Cranmer is now remembered for his unique contribution to Anglican liturgy, but he was also much occupied with the law.  Yet what his biographer calls ‘Cranmer’s cherished canon law revision project’, the reformatio legum ecclesiasticarum, never came to fruition (D MacCulloch, Thomas Cranmer, Yale 1996, p.500).  In 1640, on the eve of the civil war, Archbishop William Laud, another enthusiast for ecclesiastical discipline, promulged a new set of canons, but these were never recognised as lawful.

The 19th century litigation over public worship did nothing to enhance the prestige of ecclesiastical law.  Sir Robert Phillimore, the original author of Phillimore’s Ecclesiastical Law, strove gallantly to produce a workable, coherent liturgical law.  His judgment in the case of Martin v Mackonochie (1868) 2 Admiralty and Ecclesiastical Cases 116 is 130 pages long.  However, his formidable erudition was in vain.  As Dean of the Arches, he was liable to be overruled by the Privy Council.  He himself observed wryly that ‘The cross was holden to be lawful when on a chancel screen [but] unlawful when attached to the holy table [i.e the altar].  The result seems to be that a cross is lawful everywhere except on the holy table.  It is not easy to discover any principle on which [this law] rest[s]’ (Ecclesiastical Law, pp.732-3).

In 1874 Parliament passed the Public Worship Regulation Act, an attempt to enforce the 1662 regime of public worship on romanizing ritualists.  (The original Bill was apparently drafted by yet another Archbishop of Canterbury, Archibald Campbell Tait).  It failed.  Clergy who disdained the Act’s provisions were imprisoned, thereby becoming martyrs for the ritualist cause.  In 1906 a royal commission concluded that the 1662 regime was unenforceable.  Yet the present regime of public worship was not finally settled until the Worship and Doctrine Measure 1974, a full 100 years after the Public Worship Regulation Act.  Archbishop Michael Ramsey spent his last day in office trying (successfully) to persuade the House of Lords to approve the Measure.

The anarchic state of public worship regulation for such a long time made ecclesiastical law appear irrelevant at best and obstructive at worst.  It is not surprising that Archbishop Fisher’s efforts at law reform met with apathy and scepticism.

This depressing narrative may suggest that ecclesiastical law reform for its own sake is a hopeless cause.  If even Archbishops of Canterbury are unable to effect significant law reform, who can?

However, there is a glimmer of hope on the horizon.  The General Synod’s consultation paper, cited above, seems to envisage a new programme of law reform.  The Ecclesiastical Law Society has just issued its dignified Response to the consultation paper (published on its internet website 20th July 2015).

The Response laments the lack of interest in law reform hitherto.  The Society has been ‘a voice crying in the wilderness’ on this subject (para 2.3).  The Response relates, with a hint of wounded pride, that the Society proposed its own programme of law reform as long ago as 1987, but this was ignored by the ungrateful legislators.  Nevertheless, despite being thus ill-used for so many years, the Society magnanimously ‘renews its offer to place at the General Synod’s disposal its collective experience and the expertise of its members’.

The consultation paper refers to ‘The Presenting Problem‘ (singular), but it seems to identify two separate problems:

(1) the legislative procedure laid down by the Church of England Assembly (Powers) Act 1919 is too lengthy and onerous (cf paras 7-8) and

(2) the present volume of ecclesiastical legislation is too large and complex.

These problems are different in character, and should not be confused.  Problem (1) is procedural, and it is concerned with future lawmaking.  Problem (2), by contrast, concerns the substantive law, not procedure, and it is concerned with the past, with legislation that has already been made.

What are the proposed solutions to these two different problems?

(1) Most ecclesiastical legislation should in future be secondary legislation, in effect statutory instruments.  This means that it will no longer be subject to the scrutiny of the Ecclesiastical Committee of Parliament, as required by s.3 of the 1919 Act.

This is reasonable.  As the consultation paper points out, most secular legislation is now secondary legislation, so why should most ecclesiastical legislation be primary legislation?  We have suggested elsewhere that the Ecclesiastical Committee may have outlasted its usefulness (‘Does Parliament need an Ecclesiastical Committee?’, filed below).  The Committee’s essential function, which is safeguarding ‘the constitutional rights of all … subjects’ (s.3(3)) is now exercised by the High Court, which has power to ‘quash’ secondary legislation that is considered unconstitutional.

The Ecclesiastical Law Society gives cautious approval to the proposal, suggesting that secondary legislation may be appropriate in matters where the Church of England is ‘properly autonomous’, while retaining primary legislation for matters which engage Church – State relations and the rights of individuals (Response, para 3.4).

This distinction is important.  The 1919 Act permits a very broad scope to Church Measures.  Measures may legislate on anything ‘touching matters concerning the Church of England’ (recital).  If secondary legislation is to become the norm of ecclesiastical law, its permitted scope will have to be narrower than that.

(2) The consultation paper proposes ‘pruning and simplifying the Church’s over-elaborate statute book’ (para 12), by means of a statutory power similar to that conferred by the Legislative and Regulatory Reform Act 2006.  This Act empowers the (secular) government to amend both primary and secondary legislation by order.  An order may be made for one of two purposes:

(1) ‘removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation’ (s.1, quoted at para 10) or

(2) simplifying the language of primary legislation so that it is more accessible or more easily understood.

The consultation paper’s advocacy of a burden-reducing power similar to (1) may be based on a careless reading of the 2006 Act.  The ‘persons’ referred to in the Act are private persons, not public authorities and officials.    The Act is intended to relieve citizens, not officials.  S.1(4) of the Act makes clear that an order ‘may not be made … in relation to any burden which affects only a Minister of the Crown or government department, unless it affects the Minister or department in the exercise of a regulatory function’.  The reference to a regulatory function means that an order may be made to relieve citizens of a burden imposed on them by a particular regulatory regime.  The Act is not intended to lighten the load on public authorities, only on persons whose activities are subject to regulation by those authorities.

It is argued that there is no proper scope for an order of this type in the Church.  Apart from the regulation of weddings and funerals (in particular the fees involved), it is hard to see how ecclesiastical legislation imposes any burden on ordinary churchgoers, let alone non-churchgoers.  Parishioners may be affected by pastoral reorganisation (e.g closure of a church or merger of parishes) or by works done to the parish church, but ecclesiastical law makes scrupulous provision for reorganisation and faculty proposals to be publicly advertised and objections to them considered.  The ‘burden’ of ecclesiastical legislation falls almost exclusively on ecclesiastical officials and authorities and their employees, i.e those involved in the Church’s governance and ministry.  Yet, as mentioned, the order under the 2006 Act does not apply to officials and authorities.

It may, of course, be appropriate to remove a particular burden on an ecclesiastical institution or office, or to alter its function in some way.  But this is a matter for ordinary legislation, not any special order.  As the Ecclesiastical Law Society points out, obsolete legislation could easily be repealed wholesale by an uncontroversial Revision Measure (Response, para 4.4).

It is also hard to accept to accept that ecclesiastical legislation is unduly complex and in need of a language-simplifying order similar to (2).  Some ecclesiastical legislation, perhaps even quite a lot of it, is undeniably boring to read, but that does not make it complex.  It is certainly easier to read than much secular law.  Reading ecclesiastical legislation requires a knowledge of its subject-matter (the institutions, ministry and property of the Church) and a degree of patience.  Ecclesiastical officeholders and employees should be expected to possess both, and, as mentioned, they are the only people who are likely to be directly affected by most ecclesiastical legislation.  And they can always call on free advice from the Church’s legal officers.

It may well be true that some ecclesiastical legislation is ‘over-elaborate’, but whose fault is that?  Since 1919, the Church has been free to legislate for itself, subject only to the veto of Parliament.  No external authority forces legislation on the Church.  Any difficulty is therefore entirely self-inflicted.  If the General Synod is troubled by the volume and detail of legislation, it should just approve less and simpler legislation.

Some provisions of Church Measures can indeed be irritatingly petty and pedantic.  There are seemingly endless requirements to obtain consent, consult, inform, consider representations, convene meetings.  Not much is left to the wisdom of common law, let alone common sense and common courtesy.  A casual reader might conclude that the draftsmen of ecclesiastical legislation must have a low opinion of the competence and integrity of its subjects!

On the other hand, the minuteness of ecclesiastical legislation may be a credit to synodical government.  The synodical process, and the ecclesiastical legislation which it has produced, may be admired for its inclusiveness, the stable balance of conflicting interests that it has maintained since 1919.

The legislative importance of a particular matter is a question of interest.  The synodical process is a dialogue between a number of interests.  Bishops seek effective powers of oversight.  Lesser clergy seek autonomy and security of tenure.  Persons of particular ‘churchmanship’ seek to express this in their preferred styles of worship, and under the guidance of like-minded clergy (and clergy of particular gender, of course).  Ecclesiastical judges, with the conservation lobby behind them, seek to maintain their control over dealings with Church property.  Cathedral chapters seek to preserve their mediaeval privileges.  The Church Commissioners seek to avoid excessive demands on their resources.  Diocesan authorities seek to manage their investments efficiently.  Legal advisers seek to minimise the risk of litigation.

The settlement of ecclesiastical law on the basis of interest may be another reason for Fisher’s limited success.  His project did not engage any practical vested interest in the Church, only a minority intellectual interest, so it had little momentum.  (Perhaps Cranmer’s project failed for the same reason.)

Modern ecclesiastical legislation may be praised for its pragmatism.  However, there is an unedifying contrast between its jealous micro-regulation of the Church’s property and interest, and its much briefer references to the Church’s religion.  The selection and training of candidates for the ordained ministry is almost entirely regulated by quasi-legislation, i.e informal guidelines and codes of practice, not by proper law.  The remarriage of divorced persons in church is also dealt with by quasi-legislation which contradicts the proper law forbidding such remarriage.  There is virtually no legislation concerning catechesis, or the use of the Bible in worship.

The legislators may reply that this is as it should be.  Legal regulation of religion should be minimal.  The proper function of ecclesiastical law, like secular law, is the regulation of worldly matters such as property, not other-worldly ones.  It is anachronistic and pre-modern to suggest that the separation of law and religion undermines both, and even separates man from God, and that human rights and human authority can only be understood correctly in the context of the rights and authority of God.

 

Baptism and Godly Living

‘Godparents shall be persons who will faithfully fulfil their responsibilities … by the example of their own godly living’ (Canon B23(2)).

It has been reported in the newspapers that a vicar has refused to baptise a baby because its parents are not married to each other.

Yet Canon B22(4) is clear that

‘No minister shall refuse … to baptise any infant within his cure that is brought to the church to be baptised, provided that

[1] due notice has been given and

[2] the provisions relating to godparents [not parents] … are observed’.

Godparents must normally be baptised and confirmed, though the minister may dispense with the requirement of confirmation (Canon B23(4)).  But that is not all. Canon B23(2), quoted above, implies that the officiating minister must also be persuaded of their suitability to act as godparents.

Ecclesiastical law can decide who a child’s godparents may be, but not who its parents may be.  (That is determined by natural law, of course, or by secular law in the case of adoption.)  However, Canon B22(3) provides that

‘The minister shall instruct the parents … that the same responsibilities rest on them as are in the service of Holy Baptism required of the godparents’.

This suggests that the vicar has the right, indeed the duty, to exhort unmarried parents to regularise their union.  It is clear, however, that having godly living parents is not a pre-condition of a child’s baptism.  (It is, after all, the child that is being baptised, not the parents.)

If the vicar has no right to refuse baptism in these circumstances, does his refusal amount to disciplinary misconduct?

In the case of Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012, the Court of the Arches held that a deliberate refusal to baptise (as distinct from a failure to baptise due to forgetfulness or laziness) should be charged as an offence of disobedience to ecclesiastical law rather than as neglect of duty (p.1016).  It also held that ‘evinc[ing] a clear and final intention not to baptise the child if and when brought to the church for baptism … would constitute a refusal’ (pp.1017-1018).

However, the alleged refusal to baptise in Bland occurred before the present revised canons had come into force.  The case was therefore governed by the canons of 1603, which make no provision for godly living by either parents or godparents.  Canon 68 of 1603 bluntly provided that refusal to baptise should be punished by 3 months’ suspension.  As the Court of the Arches noted, this penal provision does not appear in the revised canons.  On the contrary, the revised canons provide a different procedure.  This apparently had a twofold purpose

(1) ‘to provide some relief from the strict letter of the law as in canon 68’ and

(2) ‘to avoid any indiscriminate baptism of infants, without going to the opposite more rigorous extreme’ (p.1018).

In other words, the policy of the revised canons was to provide guidance and support to clergy who have a conscientious objection to a particular baptism, or who find themselves dealing with problematic parents.

Thus Canon B22(2) provides that

‘If the minister shall refuse or unduly delay to baptize … the parents … may apply to the bishop … who shall, after consultation with the minister, give such directions as thinks fit’.

There is no longer a prescribed penalty for refusal to baptise, or even a threat of disciplinary action.  Moreover, the bishop is required to consult the minister before giving his directions, not merely to hear his side of the story.

It is therefore arguable that an incumbent’s refusal to baptise will not, without more, constitute disciplinary misconduct.  Any misconduct will depend on the bishop’s directions under Canon B22(2).

If the bishop directs the incumbent to administer the baptism, and the incumbent still refuses, then he will be guilty of misconduct.  However, the bishop might direct only that the incumbent should permit another clergyman to officiate in his place, out of delicacy to his scruples.  Then there will be no misconduct (provided, of course, that the incumbent does not obstruct the other clergyman).  Or again, the bishop might direct that the baptism be delayed to allow the incumbent to give further instruction to the parents.

Despite the broad wording ‘as he thinks fit’, it is unlikely that Canon B22(2) empowers the bishop to support an outright refusal to baptise a baby merely because of disapproval of the parents’ lifestyle.  That would be to impose a condition of baptism that is not found in ecclesiastical law.  The dictum in Bland quoted above suggests that the bishop’s power is limited to agreeing that the incumbent may delay the baptism.  It is true, however, that any delay may be indefinite, in which case there may be little practical distinction between delay and refusal.

The Bishop: Pastor, Minister and Ordinary

The constitutional functions of a bishop are now the subject of much detailed statutory regulation.  There is also much commentary and case law to be found on the subject in the older ecclesiastical law.  However, the three functions are helpfully outlined and summarised in the revised Canons of the Church of England, principally Canon C18.

Pastor

The bishop is ‘the chief pastor of all that are within his diocese, as well laity as clergy’.  He therefore has a direct pastoral responsibility for both clergy and laity. 

The pastoral function towards the laity is known as the cure of souls.  This is shared with the incumbents of benefices.  The shared cure of souls is made clear by the traditional wording of the bishop’s deed of institution to a new incumbent ‘habere curam animarum, et accipe curam tuam et meam‘ (quoted in Phillimore’s Ecclesiastical Law, 2nd edition 1895, at p.354).  Incumbents are assisted in their pastoral duties by other priests, also by deacons and lay ministers.  In Bishop of Winchester v Rugg (1868) 2 Admiralty and Ecclesiastical 247, the Court of the Arches suggested that the Bishop ‘has cura curarum animarum within his diocese’ (p.252).

The bishop’s principal duty as pastor of the laity is to supply them with clergy.  Only a bishop may confer holy orders, and no minister, ordained or lay, may minister within the diocese without the bishop’s authorisation.  Canon C18(6) therefore requires the bishop to ‘be faithful in admitting persons into holy orders and … [to] provide, as much as in him lies, that in every place within his diocese there shall be sufficient priests’.  There is no express requirement on the bishop to supply lay ministers.

The bishop’s pastoral responsibility towards the laity also includes consecrating new churches, churchyards and burial grounds (Canon C18(4)).

However, the bishop is also pastor of his clergy, as Hooker says, ‘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’.

The bishop has a pastoral responsibility for both clergy and laity who are opposed to women priests.  The 1993 Episcopal Ministry Act of Synod requires him to ‘make pastoral arrangements so far as possible within his diocese for appropriate care and oversight of the [opposed] clergy and parishes’ (s.3). 

A diocesan bishop may be assisted by one or more suffragans, and also by bishops specially appointed under the 1993 Act of Synod to care for opponents of women priests.  The word ‘suffragan’ is derived from the Latin word suffragari ‘to help’.  Canon C20 suggests that the suffragan’s relationship to the diocesan is analogous to that between an assistant curate and an incumbent.  It rather labours the point:

‘(1) Every bishop suffragan shall … execute such things pertaining to the episcopal office as shall be commissioned to him by the bishop of the diocese …

(2) Every bishop suffragan shall use, have  or execute only such … authority … as shall be licensed or limited to him … by the [diocesan] bishop’.

As chief pastor the bishop is generally required to reside within his diocese.  However, unlike other clergy, senior bishops have a constitutional responsibility for the governance of the secular state.  Canon C18(8) therefore provides that the bishop is permitted to reside in London ‘during his attendance on the Parliament, or on the Court, or for the purpose of performing any other duties of his office’.  Such absence in London is deemed to be residence in the diocese.

According to Canon C17(4) the Archbishop is the principal minister of the province.  However, the Archbishop is not the chief pastor of the province.  Thus there is no pastor superior to the bishop.

Minister

What is the purpose of the bishop’s pastoral duties?  It is the administration of the Divine Word and Sacraments.  This ministry is the raison d’etre of the bishop’s office.  The bishop’s pastoral function is not an end in itself.

The words pastor and minister are often used interchangeably but they have different meanings.  Canon C18 rightly draws a distinction between the bishop’s pastoral and ministerial functions.  ‘Pastor’ implies leadership or oversight of a community.  ‘Minister’ implies a responsibility for the thing, or things, that are administered. 

The bishop is ‘the principal minister’ of his diocese.  He possesses the ‘fullness of ministry’ (or fullness of priesthood), since he alone may administer the ‘sacramental’ rites of confirmation and ordination (Canon C18(4)).  Otherwise, his ministerial function is shared with all ordained and lay ministers, though administration of the sacraments is reserved to ordained ministers.

The most important ministerial acts of a bishop are confirmation and ordination, but he has certain other ministerial prerogatives.  The bishop traditionally preaches in his cathedral on the great feasts of Christmas, Easter and Pentecost.  Canon C18(4) suggests that the bishop also has the right to officiate at divine service in any church or chapel within his diocese, ‘save in places … exempt by law or custom’.

Archbishops have the particular ministerial function of ordaining new bishops (Canon C17(4)), though with the assistance of other bishops.  The Archbishop of Canterbury is, of course, the minister of the ancient rite of the coronation of the Monarch.  It seems that the Archbishop of York has the right to crown a Queen Consort.

Ordinary

Canon C18 confirms that the bishop has ‘jurisdiction as ordinary’ within his diocese.  The bishop’s function and raison d’etre as principal minister of the diocese requires a power of governance. 

‘Jurisdiction as ordinary’ means immediate, ex officio jurisdiction.  These characteristics distinguish ordinary authority from delegated authority, which must be specifically conferred on the delegate by the ordinary.  The delegation of authority by the ordinary must in turn be distinguished from the ordinary’s taking advice or assistance when exercising authority personally.

The ordinary power of governance, unlike the bishop’s pastoral and ministerial functions, is not generally shared with other clergy and lay ministers.  Among the diocesan clergy, only the archdeacons share the bishop’s ordinary authority. 

Canon C22(2) provides that ‘Every archdeacon within his archdeaconry exercises the jurisdiction which he has therein as an ordinary jurisdiction’.  However, C22(4) makes clear that ‘Every archdeacon shall … carry out his duties under the bishop and shall assist the bishop in his pastoral care and office’.  The archdeacons are therefore the assistant ordinaries of the diocese. 

Trollope succinctly summarised the constitutional relationship between bishop and archdeacons in The Warden: ‘when a bishop works, archdeacons have but little to do, and vice versa’.

The chancellor also has ordinary authority in the diocese at common law.  The dean and chapter are the ordinary authority of the cathedral.  Thus there are four diocesan ordinary authorities at common law:

(1) the bishop

(2) the archdeacons

(3) the chancellor and 

(4) the cathedral chapter.

Although they share his ordinary authority, the archdeacons may not share the bishop’s pastoral ministry, because they are not ex officio parish priests.  Thus Halsbury’s Laws suggests that it is ‘doubtful whether the archdeacon as such has a cure of souls’ (4th edition, para 496).  Cathedral canons have no cure of souls for the same reason, though the older ecclesiastical law understood that the dean has the cure of souls of the chapter and of other cathedral officeholders (Phillimore Ecclesiastical Law, 2nd edition, 1895, pp.130 and 140).  

The traditional expression of ordinary authority in the diocese is the archdeacon’s annual visitation of all the parishes in the archdeaconry.  Canon 60 of 1603 provided that the bishop should visit his diocese once every three years and use the occasion to administer confirmation.  The archdeacons only visited two years in every three.

The revised Canons relieve the bishop of the duty to make a triennial visitation.  (A visitation is no longer necessary for the bishop to administer confirmation.)  However, Canon C18(4) affirms that the bishop has the right to hold a visitation of his diocese ‘at times limited by law or custom’.  Canon G5(2) provides that when the bishop holds a visitation the ordinary jurisdiction of the archdeacons is automatically suspended or ‘inhibited’.

Canon E1(4) confirms that the churchwardens are the officers of the ordinary within the parish.  As his officers, the churchwardens traditionally flank the bishop in procession when he attends their church.  The rural dean (or area dean) may also be a kind of officer of the ordinary, having the responsibility to ‘report to the bishop any matter within the deanery which it may be necessary or useful for the bishop to know …’ (Canon C23(1)).

The pastoral arrangements made for those opposed to women priests do not impair the bishop’s ordinary jurisdiction.  The 1993 Act of Synod confirms that the bishop continues as ordinary of his diocese. 

Canons C18(3) and C22(3) provide that a bishop or archdeacon may delegate his ordinary authority, in the bishop’s case, to ‘a vicar-general, official or other commissary’, and in the archdeacon’s case, to an ‘official or commissary’.  However, the revised Canons provide no definition of a ‘commissary’.  Canon 128 of 1603 was rather more specific, providing that ordinary authority could only be delegated to a beneficed priest or a suitably qualified ecclesiastical lawyer.  The grant of marriage licences is delegated to officials known as ‘surrogates’, who are usually senior parish clergy.

Suffragan bishops are not ordinaries at common law, nor indeed in statute law.  Their original function was to assist the diocesan bishop with his pastoral work, usually by ordaining and confirming, while the archdeacons assisted with jurisdiction.  Today, however, the distinction between suffragans and archdeacons is becoming increasingly blurred (perhaps to the point where the distinction can no longer be justified). 

The Dioceses, Pastoral and Mission Measure 2007 continues the modern trend towards the sharing of episcopal functions, both of ministry and governance, within the diocese.  Under s.13 of the 2007 Measure the bishop may delegate to a suffragan or assistant bishop on an ongoing basis.  The 2007 Measure does not turn suffragan bishops into ordinary authorities.  However, a permanently delegated authority is, in practice, hard to distinguish from ordinary authority.

The functions delegated under s.13 must be specified in the instrument of delegation.  Any and all episcopal functions may be delegated except

(1) the power under Canon 4(3A) to request permission to ordain a divorced person and

(2) any power to refuse to permit women to be ordained or to officiate as priests within the diocese.

Episcopal functions may be delegated subject to conditions and may, but need not, be limited to a particular area of the diocese.  The instrument of delegation may provide for functions to be shared between the bishop and the suffragan.  A delegation under s.13 must normally be approved by the diocesan synod, but in a case of urgency the approval of the bishop’s council will suffice.  The diocesan bishop may vary or revoke a delegation, again subject to synodical approval.  The instrument may provide for its own termination after a specified period of time.

While the bishop and archdeacons exercise ordinary jurisdiction in the diocese, the Archbishop exercises metropolitical jurisdiction over the province.  The nature of this jurisdiction is explained by Canon C17(2):

‘The archbishop has throughout his province at all times metropolitical jurisdiction, as superintendent of all ecclesiastical matters therein, to correct and supply the defects of other bishops, and, during the time of his metropolitical visitation, jurisdiction as ordinary …’.

Canon C17(3) confers a similarly vague power of delegation on the Archbishop to that conferred on bishops and archdeacons.

The wording of Canon C17(2) makes clear that the constitutional relationship between the Archbishop and the diocesan bishop is not analogous to that between the bishop and the archdeacons.  The bishop’s authority does not automatically yield to that of the Archbishop.  Metropolitical jurisdiction is only engaged for some specific reason connected with the bishop’s inability to exercise his ordinary jurisdiction effectively. 

Thus in 1996 the Archbishop of Canterbury held a metropolitical visitation of Lincoln Cathedral in response to the unseemly squabbling there.  Recently there has been a metropolitical visitation of the Chichester diocese.

The Revised Canons

For the purposes of legal study and analysis, the revised canons may be divided into 5 categories:

(1) regulations made under statutory power conferred by a ‘parent’ Measure, in effect secondary legislation

(2) regulations made under the ancient legislative power of the Convocations, recognised by common law and now vested in the General Synod (Synodical Government Measure 1969, s.1 and schedule 1)

(3) declarations or summaries of, or references to, statute and common law already in force

(4) mere exhortation, advice and guidance

(5) doctrinal statements

In the first edition of the revised canons, published in 1969, the canons comprised only categories (2) to (5).  Category (1) canons were not introduced until the 1970s. 

A single canon may fall into more than one category, and different provisions of the same canon may fall into different categories.  Categories (3) to (5) are not proper legislation at all.  The difference between categories (2) and (3) is often unclear.  A particular canon may be introducing a new rule for the very first time, or merely restating an old rule.

The 1969 canons resemble a legal ‘handbook’, a guide to the relevant law for those involved in the ministry of Word and Sacrament.  The 1969 edition was the fruit of the 1947 report The Canon Law of the Church of England.  The draft canons appended to the 1947 report cite statutes, legal commentaries and case law for their authority.  This suggests that the intention was to declare or clarify existing law, rather than make new law.

Category (4) canons may have derived from category (3).  They originated at a time when people were legally obliged to attend their parish church, and to pay for its repair through church rates.  Such obligations are, of course, no longer enforceable.  Hence they have been recast as guidance for churchgoers, particularly those involved in parochial administration.  Many of the canons in section F (‘Things appertaining to Churches’) take the form of guidance.

The ‘parent’ Measures in category (1) of the revised canons were passed between 1972 and 1993, a period of approximately 20 years:

(1) Admission to Holy Communion Measure 1972

(2) Clergy (Ordination and Miscellaneous Provisions) Measure 1964, s.9(2), though inserted much later by the Clergy (Ordination) Measure 1990, s.1

(3) Deaconesses and Lay Ministry Measure 1972

(4) Deacons (Ordination of Women) Measure 1986

(5) Ecumenical Relations Measure 1988

(6) Legal Aid and Miscellaneous Provisions Measure 1988

(7) Miscellaneous Provisions Measure 1976

(8) Priests (Ordination of Women) Measure 1993

(9) Worship and Doctrine Measure 1974

The Admission to Holy Communion Measure provides that ‘the rubric … shall not prevent the General Synod from making provision by canon and regulations …’.  The wording of the other ‘parent’ Measures is that ‘It shall be lawful for the General Synod to make provision by canon …’.

Whatever their benefit to the Church, the post-1969 canons have spoiled the character of the 1969 canons as a coherent, unified code or handbook of law for those involved in ministry.  Their subject-matter is the same as that of the 1969 canons, but their character is different.  They are the secondary legislation of different parent statutes, so do not sit comfortably with a single unified code.  Nor were they introduced simply to clarify existing law.  Rather, their purpose was to reform the Church’s ministry of Word and Sacrament.  This required the authority of primary legislation.

The Worship and Doctrine Measure 1974 was central to the policy of reform.  That Measure and the canons promulged under its authority (canons B1-5) form a code of law in their own right, regulating the public worship of the Church following the abolition of the 1662 regime.

The other post-1969 legislation is a response to the sociological changes that have occurred since 1662.  The right of baptised non-Anglicans to receive Holy Communion is confirmed (Admission to Holy Communion Measure).  Joint worship and ministry is permitted between the Church of England and non-conformist Churches under the Ecumenical Relations Measure 1988.  The 1988 Measure and the canons promulged thereunder (B43-44) constitute a code of ecumenical law, similar to the 1974 code of liturgical law.

Lay ministers are given a considerable responsibility for ministry (Deaconesses and Lay Ministers Measure 1972).  Women may be ordained (1986 and 1993 Measures).  Divorced persons may also be ordained (amended 1964 Measure).  Formalities of admission to office that are deemed anachronistic may be abolished (1976 Measure).

The doctrinal canons of category (5) are not secondary legislation, but they now depend for their legal force on the definition of doctrine now contained in the Worship and Doctrine Measure 1974, s.5(1).

Canons are amended from time to time to take account of changes in the statute law, but such amendments do not constitute secondary legislation.

It is nearly 20 years now since the canons were last used as a form of secondary legislation (the 1993 Measure).  The next use of canons as secondary legislation is likely to be the ordination of women to the episcopate.