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The Oath of Canonical Obedience

  • Rupert Bursell (a1)

Abstract

The requirement for an oath of canonical obedience (or due obedience) pre-dates the Reformation although a printed text has so far only been traced back to 1637. It is taken by every bishop, priest and deacon, as well as by deaconesses and readers. There are few cases on the scope and meaning of the oath but the Privy Council case of Long v Bishop of Cape Town (1863) decided that the oath only requires obedience to such commands as the superior is otherwise by law authorised to impose. This case is still a binding authority, although difficulties arise as to its application in relation, for example, to national and diocesan regulations, policies and guidelines.

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1 In this context ‘due allegiance’ seems to be the equivalent of canonical obedience, as Canon C 1, paragraph 4, seems to make clear: ‘Where any bishop, priest or deacon ceases to hold office in the Church of England or otherwise ceases to serve in any place he continues to owe canonical obedience in all things lawful and honest to the archbishop of the province or the bishop of the diocese (as the case may be) in which he resides for the time being’ (emphasis added). In draft Canon L II, paragraph 3, in the Report of the Archbishops' Commission on Canon Law, the words ‘due obedience’ appear instead of the words ‘due allegiance’ (The Canon Law of the Church of England (London, 1947), p 141); that the words mean the same thing is made clear by the provisions of Canon C 14, paragraph 1; see, too, the Clerical Subscription Act 1865, s 12. However, as Bray, G, The Oath of Canonical Obedience (Oxford, 2004), p 19, points out, ‘There can be no doubt that the oath of canonical obedience as we now know it bears the strong imprint of medieval feudalism, nor that its closest relative is the oath of allegiance to a secular lord, comparable to the one which the clergy have sworn to the monarch since the late sixteenth century.’ In the Ordinal the episcopal oath is described as ‘The Oath of Due Obedience to the Archbishop’.

2 Report of the Archbishops' Commission, p 141. The references are: C9, Q3, cc1: X, i, 33.13. (These references are to Gratian's Decretum as are those in the next note, although in slightly different form.)

3 Gibson, in the second edition of his Codex Juris Canonici Anglicani (Oxford, 1761), p 810, refers to Extra. 1. 2. t 24, c 5. Bray, Canonical Obedience, pp 19–20, also points to the negative evidence in Liber extra 1.33.3 and Liber extra 2.24.5. The latter references date from the papal reigns of Leo I (440–461) and Urban II (1088–1099) respectively. In the former, Pope Leo told a correspondent that a clergyman need not take an oath of obedience if he were not engaged in church administration; in the latter Pope Urban said that no bishop could force a clergyman to take such an oath unless some form of church administration had been granted to him (ibid, p 20).

4 Bray (ibid, p 20, n 25) surmises that the fact that Gibson gives the oath in its Latin form ‘probably indicates its pre-reformation origins, as the other, post-reformation oaths (of allegiance and against simony) are given in English’. The form is: ‘Ego AB juro, quod praestabo veram & Canonicam Obedientiam Episcopo … ejus Successoribus, in omnibus licitis & honesties. Sic me Deus adjuvet.’ See also n 8 below.

5 Ibid, p 20. Bray gives the page reference for the second edition; the correct reference in the first edition is p 854. The oath does, in fact, appear in its Latin form in 1637: see Forms of Oaths and Allegiance, Supremacy, and Canonical Obedience, etc. Proclamation declaring that the Proceedings of His Majesties Ecclesiastical Courts and Ministers, are according to the Laws of the Realm (London, 1637).

6 Ibid. He comments, however, that the term ‘church administration’ is a ‘a term which is not altogether clear but would certainly have included institution to a benefice, once benefices came into existence’. Bray suggests that the extension of the oath to non-beneficed clergy may have occurred as a result of the imposition of the oath of allegiance to the sovereign, although he points out that there is no documentary evidence to support this suggestion (ibid, p 18, n 19).

7 Gibson, Codex, p 175 (1st edition), p 152 (2nd edition). The priest's response is: ‘I will so do, the Lord being my Helper.’

8 Ibid, p 172 (1st edition), p 150 (2nd edition). The deacon's response is: ‘I will endeavour my self, the Lord being my Helper.’ The difference in response between priest and deacon does not seem to have any legal significance.

9 Ibid, p 854 (1st edition), p 810 (2nd edition). According to Stopford, E, A Hand-book of Ecclesiastical Law and Duty for the Use of the Irish Clergy (Dublin, 1861), p 329, the oath ended ‘So help me God and the contents of this book.’

10 Canon C 14, paragraph 2, states ‘Either archbishop consecrating any person to exercise episcopal functions elsewhere than in England may dispense with the said oath’.

11 The form is ‘In the Name of God. Amen. I N Chosen Bishop of the Church and See of N do profess and promise all due reverence and obedience to the Archbishop and to the Metropolitical Church of N and to their Successors: So help me God, through Jesus Christ.’ An archbishop does not take any oath of canonical obedience, as the rubric following the oath makes clear.

12 A solemn affirmation may be taken instead of the oath. See Canon C 14, para 4.

13 Halsbury's Laws of England, Vol 34 Ecclesiastical Law (4th edition, London, 2011), para 390, n 10, remarks ‘it is unlikely that it is intended that at an ordination under letters dimissory the oath should be other than to the bishop who issued the letters’.

14 If a bishop requires a cleric to reaffirm an oath of obedience on being granted a permission to officiate it seems this may be done by letter.

15 Indeed, the Clergy Subscription Act 1866, s 12, included a saving as to the oath of obedience taken to bishops and the oath of due obedience taken to archbishops.

16 See also Lucy v Bishop of St David's (1699) 1 Ld Raym 447.

17 The similar provision in Canon C 14, para 3, omits reference to the metropolitical Church and, indeed, it is unclear what this latter part of the oath signifies in practice.

18 However, a suffragan's jurisdiction or episcopal power depends upon what has been ‘licensed or limited to him to use, have, or execute by the [diocesan] bishop’: see Canon C 20, para 2. In practice this is usually accomplished by means of an instrument made under s 13 of the Diocesan, Pastoral and Mission Measure 2007. This document may delegate the diocesan's authority in such a way that a valid direction from the suffragan, if disobeyed, would amount to canonical disobedience. That disobedience, nonetheless, would be disobedience to a (delegated) direction by the diocesan.

19 Canon D 2, para 5. A deaconess is not in holy orders: see Canon D 1, para 5.

20 Canon E 5, para 4.

21 Canon E 6, para 2. Compare Martyn v Hind (1785) Rothery's Precedents, No 178 at 89.

22 Arguably they are still so bound: see Halsbury's Laws of England, vol 34, at para 10, n 12.

23 Halsbury's Laws of England, vol 34, at para 10, n 11. The Canons do not proprio vigore bind any member of the laity: Middleton v Crofts (1736) Atk 650 at 653. However, they probably apply to deaconesses, readers and lay workers by reason of their being consensually bound: see Long v Bishop of Cape Town (1863) I Moo PCNNS 411 at 462–463; Forbes v Eden (1867) LR I Sc & Div 568 at 576; Halsbury's Laws of England, vol 34, at para 10, n 12.

24 This is implicit in Canon C 1, para 3. See also below.

25 See, for example, Doe, N, The Legal Framework of the Church of England (Oxford, 1996), p 214; Parrott, D, Your Church and the Law (2nd edition, Norwich, 2011), pp 8889.

26 Lewis, C and Short, C, A Latin Dictionary (Oxford, 1958), p 1063; Stelten, L, Dictionary of Ecclesiastical Latin (Peabody, MA, 1999), p 150.

27 Lewis and Short, Latin Dictionary, p 861; Stelten, Dictionary, p 116.

28 But see Combe v De la Bere (1881) 6 PD 157 at 172: ‘Protected thus from vexatious proceedings from without, the clergy are bound to yield obedience to the authorities set over them within the Church; it cannot, therefore, be a matter of surprise that the mere fact of being “incorrigibly disobedient” to the ordinary should find a prominent place in old ecclesiastical books as a good cause for deprivation.’ Doe, Legal Framework, p 214, describes the existing authority as ‘scant’.

29 Phillimore, R, The Ecclesiastical Law of the Church of England (London, 1895), p 1053.

30 Ibid. The Court of High Commission was abolished in 1640 and, having been revived by James II, was declared ‘illegal and pernicious’ by s 1 of the Bill of Rights 1688. It is therefore unlikely that any of its decisions will now be regarded as authoritative.

31 (1846) 1 Rob Eccl 382.

32 That is, ‘pleading’.

33 Ibid, at 388–389.

34 Ibid, at 389–390.

35 (1846) 8 QB 640 at 658.

36 Ibid, at 671.

37 (1863) 1 Moo PCCNS 411. For a longer recital of the facts, see also P Jones, ‘Canonical obedience’, available at <http://ecclesiasticallaw.wordpress.com/2012/11/03/canonical-obedience/>, accessed 11 February 2014.

38 (1863) 1 Moo PCCNS 411 at 462–463.

39 Ibid, at 465. Bray, Canonical Obedience, p 39, suggests that ‘the Judicial Committee of the Privy Council, which acted as a final court of appeal in ecclesiastical causes from 1833 to 1965 cannot now be regarded as having set a binding precedent, since canon law does not operate according to the norms of English common law. Modern canon lawyers might well argue that an ecclesiastical court is free to ignore and reverse the 1863 decision as it might choose, since the legal system which it operates does not recognise the notion of “precedent” in the English common law sense.’ However, this view is entirely misplaced, as precedent certainly does apply in the ecclesiastical courts: see Halsbury's Laws of England, vol 34, para 1032. Indeed, ss 45(3) and 48(5) of the Ecclesiastical Jurisdiction Measure 1963 specifically enact that the Court of Ecclesiastical Cases Reserved and a Commission of Review are ‘not bound by any decision of the Judicial Committee of the Privy Council in relation to matter of doctrine, ritual or ceremonial’. This makes it clear that decisions of the Privy Council continue to be binding in other courts but also that a question of canonical obedience (even within the context of a doctrine, ritual or ceremonial case) would not normally be regarded as itself a matter of doctrine, etc. Ten years later this reasoning was applied in New South Wales: Ex parte Thakery (1874) 13 SCR (NSW) 1. I am indebted to Professor Doe for this authority.

40 Phillimore, Ecclesiastical Law, pp 103–104; Cripps, H, The Law Relating to the Church and Clergy (8th edition, London, 1937), p 271.

41 (1863) LJ Ch 794.

42 Ibid, at 806.

43 (1868) LR 2 PC 223.

44 Ibid, at 235.

45 As such it would fall within the ambit of s 8(1)(b) of the Clergy Discipline Measure 2003 rather than subsection (d), which might require a failure to obey on more than one occasion. Of course, as Earl Cairns LC pointed out in Julius v Bishop of Oxford (1868) LR 2 PC 223 at 235, a bishop should not consider proceedings if the offence against the ecclesiastical law is ‘of so trifling and insignificant a nature that no one, having any discretion in this matter, ought to allow it to be the subject of litigation’.

46 (1881) 6 PD 157 at 171.

47 Ibid, at 172.

48 [1906] P 163.

49 Ibid, at 185.

50 [2002] EWHC 1394 (QB); [2002] All ER (D) 168 (May); The Times, 22 July 2002; (2002) 7 Ecc LJ 99.

51 [2002] EWHC 1394 (QB) at para 63, emphasis in original.

52 See also General Synod, ‘Report of the Steering Committee for the Draft Legislation on Women in the Episcopate’ (GS 1924), p 17, n 2, available at <http://www.churchofengland.org/media/1872454/gs%201924%20-%20report%20of%20the%20steering%20committee%20for%20the%20draft%20legislation%20on%20women%20in%20the%20episcopate.pdf>, accessed 7 February 2014. Having set out the provisions of Canon C 1, para 3, the note continues: ‘By way of the acknowledgement of that duty, under Canon C 14 clergy are required on various occasions to make or reaffirm the Oath of Canonical Obedience to their diocesan bishop. But we are advised that, in the light of the decision of the Privy Council in Long v Bishop of Cape Town (1863), the duty of obedience does not require the cleric to comply with any and every direction given by the bishop; rather, it required the cleric to obey such directions as the bishop is authorised by law to give.’

53 Such a direction, however, is ‘without prejudice to the matter in question being made the subject matter of proceedings under the Ecclesiastical Jurisdiction Measure 1963’: Canon B 5, para 4.

54 See Halsbury's Law of England, vol 34, at para 6.

55 SI 2009/2108.

56 Regulation 23(6).

57 Bland v Archdeacon of Cheltenham [1972] Fam 157 at 166.

58 See Hill, M, Ecclesiastical Law (3rd edition, Oxford, 2007), para 1.35; Halsbury's Law of England, vol 34, at para 6.

59 See Doe, Legal Framework, p 70.

60 See Long v Bishop of Cape Town (1863) 1 Moo PCCNS 411. Ayliffe, Contrast J, Parergon Juris Canonici Anglicani (London, 1726), p 124, although he adds: ‘But yet’ tis observed, That a Bishop cannot ordain or appoint any Thing that is contrary to the general Canons of the Church'.

61 See Doe, N, Hill, M and Ombres, R (eds), English Canon Law: Essays in Honour of Bishop Eric Kemp (Cardiff, 1998), p 99.

62 Halsbury's Law of England, vol 34, at para 154.

63 Available at <http://www.churchofengland.org/media/1343886/p%20robinson.pdf>, accessed 7 February 2014.

64 [1972] Fam 172.

65 Protecting all God's Children: The Child Protection Policy for the Church of England. The tribunal was concerned with the third edition, published in 2004; the most up-to-date edition is the fourth edition, published in 2010.

66 Re Robinson (see n 63 above) at para 120. It would seem that the obligation on an incumbent would include, for example, a duty to co-operate in putting the policy into effect by responding to any enquiry from an appropriate diocesan officer whether proper training has been given or undertaken. Care must be taken, however, to ensure that confusion does not arise between such a duty to co-operate implicitly imposed by the safeguarding policy and a request to respond, which should more appropriately be made through a visitation. It must also be borne in mind that this argument based on the wording ‘duty of office’ cannot apply in a jurisdiction such as the Channel Islands, where the provisions of the Clergy Discipline Measure 2003 do not apply.

67 Ibid, at para 119.

68 See <www.thinkinganglicans.org.uk/archives/003154.html>, accessed 7 February 2014. Whether or not the Guidelines referred to by the Bishop of London are such to have legally binding force, it is likely that the service conducted by Dr Dudley was in breach of Canon B 1, para 2. Even if the service was an occasion ‘for which no provision is made’ within the meaning of Canon B 5, para 2, in the light of the House of Bishops' Guidelines it seems likely that the form of service would be seen as ‘contrary to, [or] indicative of [a] departure from, the doctrine of the Church of England’ in an essential matter: see Canon B 5, para 3. Canon B 5, para 4, of course, states: ‘If any question is raised concerning the observance of the provisions of this Canon it may be referred to the bishop in order that he may give such pastoral guidance, advice or directions as he may think fit’.

69 Calvert v Gardiner [2002] EWHC 1394, [2002] All ER (D) 168 (May). See also Hutchins v Denziloe and Loveland (1792) Hag Con 170 (a bishop has no power to limit a discretion in the choice of alternative forms of services permitted by law).

70 Canon C 18, para 1.

71 I am grateful for being sent copies of Julian Andrews' LLM dissertation, ‘Divided loyalties: a study of obedience in military chaplaincy’ (2003) and John Paddock's LLM dissertation, ‘Canonical obedience: law and obedience in church and society’ (2007). See also F Clerke, Praxis in Curiis Ecclesiasticis, at xci (c1610, Harvard Law School Library HLS MS 516); Anon, Officium Cleri, Desiderium Populi (London, 1691).

72 Hill, Ecclesiastical Law, para 4.07; Briden, T and Hanson, B, Moore's Introduction to English Canon Law (4th edition, London, 2013), p 42; Leeder, L, Ecclesiastical Law Handbook (London, 1997), paras 7.22 and 7.23; Adam, W, Legal Flexibility and the Mission of the Church (Farnham, 2011) pp 192193.

73 Parrott, Your Church and the Law, p 85.

74 Parrott here quotes Doe, Legal Framework, p 214, and the suggestion that the bishop's direction must be ‘expressly or impliedly authorised by law, and … not ultra vires’ but omits reference to Doe's footnote (see n 87 below).

75 Parrott, Your Church and the Law, pp 88–89, quoting Long v Bishop of Cape Town (1863) 1 Moo PCCNS 411 at 465.

76 Bingham, J, The French Churches' Apology for the Church of England (London, 1706), p 228.

77 Simpson, W Sparrow, Dispensations (London, 1935), pp 211212.

78 Ibid, p 213. For such an argument, see J Parker, Canonical Obedience: A Paper read at the Church Congress at Derby (1882).

79 Sparrow Simpson, Dispensations, p 219.

80 Ibid, p 219.

81 Ibid, pp 223–224.

82 Ecclesiastical Offices (Terms of Service) Regulations 2009, reg 3(1).

83 Ibid, reg 29(1). There is a concomitant duty on the office holder to participate in the training: reg 20.

84 Ibid, reg 19(4).

85 Doe, Legal Framework, p 213. See also Doe, N, Canon Law in the Anglican Communion (Oxford, 1998), pp 150153.

86 Doe, Legal Framework, p 213, n 245, referring to Atiyah, P, Promises, Morals and Law (Oxford, 1981), pp 187190.

87 Amending Canon No 24. Doe, Legal Framework, 213, n 246, points out that archdeacons and deans take oaths of obedience to their bishops but this obligation is, of course, embraced within the words ‘admitted to any office in the Church of England’ in Canon C 14, para 5. He also states (quoting Barrett, P, Barchester: English Cathedral Life in the Nineteenth Century (London, 1993), p 327, n 8) that the Dean of Norwich does not take such an oath but, if that is still so, that in itself is a breach of Canon C 14, although the duty of obedience nonetheless remains.

88 Doe, Legal Framework, p 214.

89 One application would be obedience to the provisions of a special licence.

90 Here Doe refers in a note to Bishop of St Albans v Fillingham [1906] P 162 at 185 and continues: ‘it is unlawful to disobey an episcopal command to “obey the law”’. It is these final words, of course, which are critical, as they make it clear that any direction must be in relation to a matter that the law already requires to be obeyed.

91 Doe, Legal Framework, p 214.

92 Indeed, this seems to be the actual opinion of Doe himself as he says in The Law of the Church in Wales (Cardiff, 2002), pp 149150: ‘When the law is silent as to the bishop's direction, according to the judicial statement referred to above [that is, from Long v Bishop of Cape Town], it would seem that clerical obedience is not required – it cannot be said, in such a case, that the law authorises the bishop's direction.’

93 Bray, Canonical Obedience, pp 37–40.

94 Referred to in Doe, Law of the Church in Wales, p 149, n 39.

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