The advice set out in this note is that given to the House of Bishops to inform its consideration of this matter at its meeting in May 2010. This is background to its statement set out in GS Misc 960.
1. This paper considers whether there is any impediment in law to the consecration as a bishop of a priest who:
(a) has re-married and, the wife of that marriage being living, has a former wife still living; or
(b) is married to a person who has been previously married and whose former husband is still living.
2. The fact that, from the Second Lateran Council onwards, clergy were subject to the rule of universal celibacy does not mean that the canon law relating to marriage could have no application to the clergy: issues relating to earlier marriages could be relevant to their ordination and their subsequent ministry since a man could, in principle, be ordained after the death of his wife if he did not intend to re-marry.
3. Under the pre-reformation canon law (which continued in force and was administered in the ecclesiastical courts in England until 1857) there were two types of divorce: divorce e mensa et thoro and divorce a vinculo. The former was available in the case of the commission of matrimonial offences such as adultery; but a person who was divorced e mensa et thoro was not free to remarry. The latter - divorce a vinculo - was available in cases where the marriage was void (on grounds of one of the parties not being of marriageable age, for example). As the effect of a divorce a vinculo was to put the parties in the position they would have been had their marriage never taken place, they were free to remarry.[1] (Decrees of nullity were also available in certain circumstances.)
4. Given that this was the position under the ancient canon law (and under the canon law that continued to apply in England after the Reformation) we cannot see how there can have been any scope for a canonical impediment to ordination - whether to the episcopate in particular or to the diaconate or the presbyterate - in relation to those who had divorced and remarried with a former spouse still living (or who were married to a person with a former spouse still living) because divorce and remarriage in that sense was simply not a possibility under canon law.
5. However, that does not dispose of the matter since the pre-Reformation canon law did provide for impediments to ordination that related to matrimonial matters.
6. Draft Canon LV included in the draft Canons attached to the Report of the Archbishops’ Commission on Canon Law (1947) contained a proposed prohibition on the admission to Holy Orders of any person who had remarried and whose former wife was still living, or who had married a person whose former husband was still living. The marginal annotation refers to Distinction 34 case 8 and Distinction 77 case 8 in the Decretum of Gratian (a collection of c.1140 systematising earlier canonical material). But the reference to those decretals does not mean that they were seen as establishing 'authority' for the proposition embodied in draft Canon LV in a legal sense: the annotations were intended to show the “pedigree” for the proposed new canon in question and “how the new canons arise quite naturally out of the past law of the Church…”. Further, their content is in any event such that they do not provide authority in a specific sense for the content of the draft canon. Indeed, the decretals cited seem dubious ‘pedigrees’ for a proposed canon concerned with the case of those who have “remarried according to the secular law but who [have] a former wife still living”.[2]
7. However, among the irregularitates[3] (that is, disqualifications from holy orders[4]) under the pre-Reformation canon law was the defect of ‘bigamy’. English provincial constitutions contained in Lyndwood (and reproduced by Gibson) include as a categories of irregularitates “…bigamists, husbands of lewd women, violators of virgins consecrated to God…”. ‘Bigamy’ had a different meaning under the canon law from that which it has for the purposes of modern English law, including (but not limited to) the position where a man married twice and either or both marriages were invalid. A man who had divorced e mensa et thoro and who then went through a ceremony of marriage during the lifetime of his wife would incur the irregularity of bigamy. But it seems (though the matter is not free from doubt) that so would a man whose first marriage was invalid (e.g. for consanguinity) who subsequently married validly.
8. Thus the concept of ‘bigamy’ under the pre-Reformation canon law could have had relevance to the situations described in paragraph 1 above.
9. So far as the continuing relevance of the pre-Reformation canon law is concerned, the first question to be considered is the impact of the Henrician legislation.
The Submission of the Clergy Act 1533
10. Section 1 of the Submission of the Clergy Act 1533 requires the Crown’s assent and licence for the making of any canon etc; and s.3 prohibits the making of a canon “which shalbe contraryaunt or repugnant to the kynges prerogative royall or the customes lawes or statutes of this realme”.
11. So far as the canon law in force immediately before the coming into force of the Act is concerned, s.7 of the Act (since repealed) provided that, until the Commission established under that Act to review canon law had finished its work, “all canons, constitutions, ordinances and Synodals Provincial already made which were not contraryant or repugnant to the law, statutes and customs of this realm, nor to the damage or hurt of the King’s prerogative” were to continue in force.
12. Thus the body of pre-Reformation law remains in force, as part of the common law of the realm, to the extent that it has not been abrogated by later legislative enactment or contrary custom. Given the possibility of abrogation by later custom, in order to show that any particular norm of the pre-Reformation canon law remains binding, it must be pleaded and proved to have been “received, observed and acted upon” in England since the Reformation[5].
13. If it could be shown that the mediaeval canon law relating to ‘bigamy’ as an irregularity continued to apply after the Reformation, it would have applied as much to the case of consecration to the episcopate as it did to ordination to the diaconate and prebyterate.[6] But it would seem very difficult (and probably impossible) to prove that the relevant canons were recognised, continued and acted upon in England after the Reformation. In Re St Peter's, Draycott[7] the Court of Arches said that where such an assertion is made recourse should be had to the Canons of 1603 for guidance. The Canons of 1603 are far more general than the mediaeval canon law in terms of the qualifications for ordination: Canon 34 of 1603 simply provides that where a candidate comes from another diocese he is to exhibit letters testimonial of his “good life and conversation”. That being so, unless it could be demonstrated that the pre-Reformation canon law in relation to bigamy as an irregularity had been uniformly recognised in England since the Reformation the conclusion must be that that canon law did not form part of the law of England.[8]
The Appointment of Bishops Act 1533 and the Suffragan Bishops Act 1534
14. As noted above, the pre-Reformation law only remains relevant if and in so far as it has not been abrogated by later legislative enactment. In that connection, further provisions of the Henrician legislation need to be considered.
15. So far as the appointment of diocesan bishops is concerned, s.3 of the Appointment of Bishops Act 1533:
(a) authorises the Crown, on the avoidance of a bishopric, to issue to the dean and chapter[9] of the relevant cathedral a licence under the great seal (the ‘conge d’elire’) authorising them to elect a person to the vacant see, together with a ‘letter missive’ containing the name of the person to be elected;
(b) requires the dean and chapter to elect the person named in the letter missive; and
(c) if the dean and chapter fail to elect that person within 12 days, authorises the Crown to nominate and present someone to the vacant see.
16. Section 4 of the 1533 Act:
(a) requires the relevant archbishop to consecrate any person presented or nominated by the Crown in default of election by the dean and chapter;
(b) provides that any election by a dean and chapter “shall stonde good and effectuall to all intents”;
(c) requires the relevant archbishop to confirm the election of a bishop elected by a dean and chapter and to consecrate that person; and
(d) requires the other archbishop and two other bishops, or four bishops, to confirm the election of an archbishop elected by a dean and chapter and to consecrate that person.
17. Section 5 of the 1533 Act provides that anyone consecrated in accordance with the procedures specified by the Act and having sued for their temporalities etc
“shalbe obeyed in all manner of thynges according to the name title and dignitie that they shalbe so chosen or presented unto, and doo and execute in every thynge and thynges touchyng the same, as any archebishop or byshop of this realme, without offendyng the prerogatyve royall of the crowne and the laws and customes of this realme mought at any tyme heretofore doo”.
18. It has been suggested that this framework would not allow any scope for objections to be taken to the suitability of the person named in the letter missive. The authorities relating to the process of confirmation of election - conducted by the Vicar General of the relevant archbishop on behalf of that archbishop - establish that objections are only allowed to be taken in that process on the ground that the election was defective in some matter of form or that the person presented was not the person on whom the Crown’s choice had fallen. Thus in Temple’s Case (1869) Sir Travers Swiss, the Vicar General said:
“I am of opinion that I have no power whatever to review the choice of the crown in regard to Dr Temple being a fit and proper person to be bishop of the see of Exeter. I think that what [counsel for the dean and chapter] has said is most pertinent, and it is to my mind conclusive – that where parties believe that the choice of the crown has been erroneous, it is their duty to apply at an earlier stage than this to have the matter set right. I think it is their duty if they think the choice of the crown has been erroneous to go to her Majesty and beseech her, or humbly request her, not to issue her mandate for the confirmation of the election.”
19. Similarly, in R v Archbishop of Canterbury[10] it was held that at the confirmation of the election of a bishop there was no jurisdiction to entertain objections founded upon questions of doctrine. In reaching that conclusion the court expressly rejected any suggestion that the process of confirmation imposed a duty on the archbishop to consider whether the candidate for election possessed any qualifications required by the former canon law[11].
20. However, the absence of any potential for the process of confirmation of election to take account of any objection based on the existence of an impediment cannot be the end of the matter. Were there to be an impediment, then the consecration of a person suffering from an impediment would remain unlawful; and it would be open to those who wished to object to the consecration by way of objection to petition the Crown to that effect and, if the Crown persisted in its nomination, to bring proceedings by way of judicial review – a possibility which would not have been available at the time when Temple’s Case and R v Archbishop of Canterbury were decided.
21. So far as the appointment of suffragan bishops is concerned, s.1 of the Suffragan Bishops Act 1534:
(a) authorises any bishop who wishes to have a suffragan bishop to nominate “two[12] honest and discrete spirituall parsonnes being lernyd and of good conversacion” whom they are to present to the Crown with the request that one of them be given the title of one of certain specified sees;
(b) requires the Crown, having selected a see, to present the person concerned to the relevant archbishop; and
(c) requires the archbishop to consecrate that person.
22. Section 3 of the 1534 Act provides that:
“…everie archebishop of this realme, to whome any the Kynges letters patentes yn the cases afore rehersid shalbe directed havinge no laufull impediment, shall pforme and accomplishe the effects and contentes of this Acte within the tyme of 3 monethes nexte after suche letters patentes shall come to their handes; any usages customes foreyn lawes privileges prescripcons or other thinge or thiges heretofore used had or don to the contrary hereof notwithstandinge”.
23. Thus in this case there appears to be an express qualification of the archbishop’s duty to consecrate in cases where there is an impediment (“having no lawful impediment”).
Conclusion
24. The pre-Reformation canon law relating to the irregularity of ‘bigamy’ would not have been abrogated by the arrangements made in relation to episcopal appointments by the Acts of 1533 and 1534. This is because these were essentially procedural rather than being concerned with substantive questions such as the qualifications of those who were to be elected and consecrated to the episcopate.
25. That that is the case would seem to be supported by the assumed continued existence until recent times of an impediment which, if the effect of the Henrician legislation had been to revoke the irregularity of bigamy, would also have been revoked: the impediment on the consecration as bishop of a person born out of wedlock was considered to have continued until repealed by Canon C 4.3 (now Canon C 4.2) which was made under the express authority of s.8 of the Clergy (Ordination and Miscellaneous Provisions) Measure 1964.
26. For the reasons given in paragraphs 12 to 13 above we do not consider that it can be demonstrated that the pre-Reformation canon law relating to bigamy as an impediment to ordination continued in force in England. But even if it could be shown to have continued in force, and if the effect of the Henrician legislation concerned with the appointment of bishops was not such as to abrogate it, nevertheless subsequent legislation will have done so. Nor has subsequent legislation imposed any new impediment as regards consecration to the episcopate.
The Matrimonial Causes Act 1857
27. Prior to the Matrimonial Causes Act 1857, divorce – in the modern sense of dissolving a valid marriage – was only obtainable by private bill[13]. The 1857 Act allowed the possibility of divorce by civil proceedings leading to a judicial decree dissolving the marriage. Section 57 of the Act provided that once a decree dissolving a marriage had been made under the Act (and absent any appeal) “it shall be lawful for the respective parties thereto to marry again, as if the prior marriage had been dissolved by death…”. (A proviso was added so that a clergyman could not be compelled to marry a person whose previous marriage had been dissolved under the Act.)
28. The clergy were not precluded (whether by the 1857 Act or otherwise) either from taking advantage of the possibility it offered to divorce and lawfully remarry, or from the possibility of lawfully marrying those who had been divorced under it.
29. A cleric divorced under the Act who remarried would not accordingly ‘know’[14] a woman who was not his wife: as a matter of law the new wife would simply be his wife. Thus with the passing of the 1857 Act English law changed; and in so far as (contrary to the view expressed above) the canon law relating to ‘bigamy’ continued in force as part of the law of England after the Reformation then, when English law changed in 1857, the question of what amounted to bigamy will have changed accordingly: a person divorced under the 1857 Act was as a matter of English law entitled to remarry and the law treated such a remarriage as lawful for all purposes. Were the canon law still at that point to have treated such a remarriage as ‘bigamy’ then the canon law would have been “contraryant or repugnant to the lawes statutes and customs of this realme” for the purposes of the Submission of the Clergy Act 1533 - and therefore would not, to the extent that it was “contraryant” or “repugnant”, have been enforceable.
30. The situation in that respect is comparable to that arising as a result of the passing of the Deceased Wife’s Sister's Marriage Act 1907: following that Act, those who married under the Deceased Wife’s Sister’s Marriage Act 1907 could not be excluded from the Holy Communion because entering into a marriage which was now sanctioned by the law of the land could no longer provide a ‘lawful cause’ for exclusion from the Sacrament under s.1 Sacrament Act 1545[15]
The Clergy (Ordination and Miscellaneous Provision) Measure 1964
31. Section 9 of the 1964 Measure provided that:
“9. (1) No person shall be admitted into Holy Orders who has re-married and, the wife of that marriage being living, has a former wife still living.
(2) No person shall be admitted into Holy Orders who is married to a person who has been previously married and whose former husband is still living.”
32. The provision made in reliance on s.9 was paragraph 3 of Canon C 4. Canon C 4, entitled ‘Of the Quality of such as to be ordained Deacons or Priests’, represented an amended version of draft Canon LV proposed in the Report of the Archbishops’ Commission on Canon Law (1947). Paragraph 3 of the Canon provided that:
“No person shall be admitted into Holy Orders who has remarried and, the wife of that marriage being alive, has a former wife still living; or who is married to a person who has been previously married and whose former husband is still living.”
33. The view appears to have been taken by the Canon Law Steering Committee (which oversaw the process of canon law revision) that statutory authority was needed to allow the making of the provision that came to be embodied in Canon C 4.3: the ‘Comments and Explanations’ prepared by the Legislative Committee on the 1964 Measure stated that:
“This Measure arises out of the revision of Canon Law. No Canon may be submitted for the Royal Assent if it contains anything which is contrary to the existing law. … Certain provisions in the canons in [section C dealing with ‘Ministers, Their Ordination, Function and Charge’] are not in accordance with the present law. …this Measure makes the necessary alterations to the law to enable the other canons in this section to be presented for the Royal Assent.”
34. We have not been able to establish in precisely what respect the Committee considered that provision to be inconsistent with the general law. However, it seems likely that the perceived need for statutory authority for the making of the provision contained in what became Canon C 4.3 was the introduction of civil divorce under the Matrimonial Causes Act 1857. Some support for that view may be found in a letter dated 2nd June 1964 from Mr M. F Elliott-Binns, Assistant Secretary to the Church Assembly, in which it is said that:
“while the impediments [relating to divorce] are new, they have been included to meet a new situation which has arisen since the 16th and 17th centuries, when the present law was framed.”
35. More particularly, the concern may have been that (reflecting what is said in paragraphs 29 and 30 above), in the same way that marriage under the Deceased Wife’s Sister’s Marriage Act 1907 could not be said to amount to a ‘lawful cause’ for refusal to admit to the Holy Communion, a canonical provision could not (in the absence of statutory authority) treat as an impediment conduct which, following the introduction of civil divorce under the 1857 Act, was similarly sanctioned by the law of the land.
36. So far as the intended effect of the provision made by s.9 of the 1964 Measure and what became Canon C 4.3 is concerned, it is apparent that it was not intended to have any application to bishops.
37. First, the wording of draft Canon LV proposed in the Report of the Archbishops’ Commission on Canon Law, from which what became Canon C 4.3 was derived, was such as to imply that the reference to ‘admission into Holy Orders’ was not intended to include consecration to the episcopate: so much seems apparent from its heading (‘Of the Quality of such as are to be ordained Deacons or Priests’) and from the terms of paragraph 2, which read:
“No person shall be admitted into Holy Orders who is suffering, or who has suffered, from any physical or mental infirmity which in the opinion of the bishop will prevent him from ministering the Word and Sacraments or from performing the other duties of the Minister’s office.”
38. The implication of the reference to ‘the opinion of the bishop’ is that the Holy Orders in question are ones to which the bishop can admit - namely those of the diaconate and the priesthood alone; and the reference to ‘admission to Holy Orders’ must be understood to be employed in that same sense throughout the draft Canon, including the paragraph (paragraph 3) relating to divorce.
39. Second, the wording of the draft Canon in a subsequent form was amended so as to include in a new paragraph 4 an impediment which plainly was intended to apply to consecration to the episcopate, but that was achieved by using language referring expressly to that, rather than by referring to ‘admission into Holy Orders’: whereas the impediments relating to physical or mental infirmity and divorce imposed by paragraphs 2 and 3 respectively of the draft Canon were expressed in terms of ‘admission to Holy Orders’, that imposed by paragraph 4 relating to illegitimacy read:
“No person shall be refused consecration as bishop [emphasis added] or ordination as priest or deacon on the ground that he was born out of lawful wedlock.”
40. Third, the understanding that paragraphs 2 and 3 did not apply to consecration to the episcopate was reflected in subsequent decisions as to the drafting of the Canon, the reference to ‘consecration as bishop’ in paragraph 4 being removed on the basis that the rest of the Canon (including the paragraph relating to divorce) did not apply to bishops. Thus in the Upper House of the Convocation of Canterbury on 19th October 1954 the Archbishop of Canterbury referred to a suggestion from the House of Laity that paragraph 4 be moved elsewhere and reported that:
“In the [Canon Law] Steering Committee we could not deny that it was anomalous to have a regulation about the consecration of bishops in a canon dealing with deacons and priests”.[16]
41. Similarly in the debate on the draft Canon 55 in the House of Laity on 11th November 1957 Mr Oswald Clark, in introducing the draft Canon, stated that:
“…Clause 4 as printed read: “No person shall be refused consecration as bishop or ordination as priest or deacon on the ground that he was born out of lawful wedlock”, and the words “consecration as bishop or” had been deleted by the Convocations because the title of the Canon referred only to deacons and priests and the other clauses dealt solely with deacons and priests [emphasis added]. The question of illegitimacy not being a bar to consecration as a bishop was now dealt with in another Canon…”.[17]
42. Consistently with this understanding, in the debate in the Church Assembly on 1st June 1962 on the draft of the 1964 Measure Mr Clark stated with reference to clause 9 of the draft that “…Here in this clause they were dealing with someone who was a layman [emphasis added}, who might be seeking ordination…”.
43. The use of the term “admitted into holy orders” so as to refer only to the ordination of deacons and priests – but not consecration to the episcopate – was entirely consistent both with long-established legislative practice and with the use of that expression elsewhere in the Revised Canons. For example, Canon 33 of 1603 provides –
“It hath been long since provided by many decrees of the ancient fathers, that none should be admitted either deacon or priest, who had not first some certain place where he might use his function: According to which examples we do ordain, that henceforth no person shall be admitted into sacred orders, except he shall at that time exhibit to the bishop, of whom he desireth impostion of hands, a presentation of himself to some ecclesiastical preferment then void in the diocese;…”.
44. It is clear that in Canon 33, the expression “admitted into sacred orders” is concerned only with ordination to the priesthood or diaconate. Canon 34 uses the expression in the same way:
“No bishop shall henceforth admit any person into sacred orders, which is not of his own diocese, except he be either of one of the universities of this realm, or except he shall bring letters dimissory (so termed) from the bishop of whose diocese he is; and desiring to be a deacon is three and twenty years old; and to be a priest is four and twenty years complete; and hath taken some degree of school in either of the two universities; or at least…”.
“[A]dmit… to sacred orders” is used here to mean ordain to the diaconate or priesthood. In neither Canon 33 nor Canon 34 could it possibly encompass consecration to the episcopate.
45. A number of modern legislative provisions proceed on the same basis. In paragraphs 1 and 4 of Canon C 5 it is clear that the expression “admitted into holy orders” refers only to the ordination of priests and deacons. Under paragraph 1, “any person to be admitted into holy orders” must produce to the bishop who it is intended will ordain him a certificate showing that he has a title post within the diocese. Under paragraph 4, it is provided that “no person shall be admitted into holy orders by any bishop other than the bishop of the diocese in which he is to exercise his ministry” unless he has letters dimissory. In both cases it is beyond doubt that “admitted into holy orders” does not include consecration to the episcopate.
46. There is nothing in the 1964 Measure or in the canonical provision made under it to suggest that “admitted to holy orders” means anything beyond ordination to the diaconate or priesthood. If it was intended to cover all three orders then one would have expected it to say so in terms – precisely as section 8 of the Measure (Illegitimacy no impediment to orders) refers to “ordination as deacon or priest or consecration as a bishop”. Moreover the canonical provision that section 9 of the 1964 Measure made possible – and which it was designed to make possible – formed part of a canon concerned solely with the ordination of priests and deacons. No equivalent provision was made (or was expected to be made) in the canon concerning consecration to the episcopate (Canon C 2).
47. The 1964 Measure accordingly:
(a) proceeded on the basis that there was no existing impediment in relation to divorce, in terms of ordination to the diaconate or the priesthood (and quite possibly on grounds which would have meant that there was no such impediment in relation to consecration to the episcopate either); and
(b) did not impose a new impediment as regards divorce in relation to consecration to the episcopate.
The Clergy (Ordination) Measure 1990
48. Section 1 of the 1990 Measure substituted a new version of s.9 of the 1964 Measure. It read:
“9. (1) Unless a faculty has been granted by the archbishop of the province in pursuance of a Canon made under subsection (2) of this section, a person –
(a) who has remarried and, the other party to that marriage being living, has a former spouse still living, or
(b) who is married to a person who has been previously married and whose former spouse is still living,
shall not be admitted into Holy Orders.
(2) It shall be lawful for the General Synod to make provision by canon for empowering the archbishop of a province, on an application made to him by the bishop of the a diocese, to grant a faculty to the bishop for admitting into Holy orders a person who otherwise could not be so admitted by reason of subsection (1) of this section.”
49. The Canon made in reliance on this provision was Amending Canon 9. It amended Canon C 4 by substituting new paragraphs 3 and 3A as follows:
“3. Subject to paragraph 3A of this Canon no person shall be admitted into holy orders who has remarried and, the other party to that marriage being alive, has a former spouse still living; or who is married to a person who has been previously married and whose former spouse is still living.
3A. The archbishop of the province, on an application made to him by the bishop of a diocese on behalf of a person who by reason of paragraph 3 of this Canon could not otherwise be admitted into holy orders, may grant a faculty for the removal of the impediment imposed by that paragraph to the admission of that person into holy orders, and any request made to a bishop for an application to be made on his behalf under this paragraph shall be made and considered, and any application made by the bishop to the archbishop shall be made and determined, in accordance with directions given from time to time by the Archbishops of Canterbury and York acting jointly.”
50. Section 9(2) of the 1964 Measure, as substituted by the 1990 Measure, refers to the granting of “a faculty to the bishop for admitting into Holy Orders a person who could not otherwise be so admitted” by reason of the impediment imposed by s.9(1). The clear implication is that the orders in question are ones to which the bishop of the diocese can admit - namely those of the diaconate and the priesthood alone.
51. Because of the way in which s.9 as a whole is constructed, it would be wrong to construe it so that the range of those to whom s.9(2) applies is narrower than the range of those to whom s.9(1) applies. That being so, the prohibition imposed by s.9(1) could also only apply to those being ordained to the diaconate or the priesthood and would not apply to those being consecrated to the episcopate. The use of the expression “admitted into holy orders” when only ordination to the priesthood and diaconate are intended to be covered is entirely consistent with the legislative precedents already cited above.
Canon C 18
52. Paragraph 1 of Canon C 18 provides that a bishop is to be “himself an example of righteous and godly living”.
53. The objection might be raised that a person who fell within either of the categories referred to in paragraph 1 above would not be “an example of righteous and godly living” and could not therefore be consecrated as a bishop. However, for the reason indicated in paragraph 28 above, the mere fact that a person had entered into a marriage which was lawful and as valid as any other under the law of the land would not, of itself, mean that this requirement was not capable of being met by that person.
Conclusion
54. There is no legal impediment to the consecration of a person falling within either of the categories referred to in paragraph 1 above because:
(a) the pre-Reformation canon law irregularity of ‘bigamy’ almost certainly ceased to be recognised, continued and acted upon in England after the Reformation;
(b) if that irregularity did continue to form part of the canon law of the Church of England after the Reformation, however, it would not have survived the enactment of the Matrimonial Causes Act 1857, since (i) from that point onwards it was lawful to remarry after being divorced under the Act and (ii) any impediment to ordination that involved treating such a marriage as constituting ‘bigamy’ under the canon law would have been “contraryant” or “repugnant to the lawes statutes and customs of this realme” under the Submission of the Clergy Act 1533 and would not, therefore, to that extent have been enforceable; and
(c) the 1964 and 1990 Measures did not establish any new, statutory impediment so far as consecration to the episcopate was concerned.
55. As there is no legal impediment to the consecration of a person falling within either of the categories referred to in paragraph 1 above, it is open to the Church to develop a policy as to whether such a person should be considered for preferment to the episcopate. However, any such policy would need to be formulated[18] in such terms as to be capable of withstanding legal challenge by reference to either:
(a) discrimination law - which would mean, in particular, that it would have to be expressed in terms which were such as to allow advantage to be taken of the exemption conferred by paragraph 2 of Schedule 9 to the Equality Act 2010 (which protects the imposition of requirements relating to marriage for the purposes of an organised religion where such requirements are imposed so as to comply with the doctrine of the religion or to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers; or
(b) the principles of judicial review - which would mean that it would need to avoid any of the grounds on which the decisions of public bodies can be challenged, in particular that of ‘irrationality’.
The Rt Worshipful Charles George QC |
Dean of the Arches and Auditor |
Sir Anthony Hammond KCB QC |
Standing Counsel |
Stephen Slack |
Chief Legal Adviser |
The Reverend Alexander McGregor |
Deputy Legal Adviser |
April 2010 |
|
[1] See Burn’s Ecclesiastical Law, title Marriage.
[2] Distinction 34 case 8 states that a person who ‘has known’ another woman besides his wife is not to be admitted to the clerical state. (Other cases included by Gratian under Distinction 34 deal with bigamy as described in paragraph 6. Case 10 includes bigamy (along with ignorance of letters and other factors) as an impediment to admission to holy orders and case 13 states that a person who takes for his wife a widow, either before or after baptism, is not to be admitted to Holy Orders, reflecting the wider view of bigamy that was held by the canon law - and which, interestingly, is inconsistent with the proposition contained in the draft canon that whether the person’s wife’s former husband was still living should be a material consideration.) Distinction 77 case 8 is concerned with the proposed admission to clerical office of persons who have been monks. In such cases, enquiries are to be made into the monk’s way of life to ensure there be no serious crime and that he should not have had a second wife nor be shown to have left a marriage.
[3] ‘Irregularity’ under the canon law had a much stronger meaning than its ordinary English meaning would suggest. Irregularity was a bar to admission to holy orders; and in the case of a person already admitted it was a cause of suspension from orders. The use of the term is preserved in the unrepealed part of Canon 113 of the Canons of 1603 which prohibits a priest from revealing what is said to him in confession “under pain of irregularity”. Breach of the prohibition is therefore a serious ecclesiastical offence. (See further Legal Opinions concerning the Church of England at page 38)
[4] See Phillimore The Ecclesiastical Law of the Church of England (1895) at page 94.
[5] ishop of Exeter v Marshall (1868) LR 3 HL 17, at pages 53 and 54; Re St Mary’s Westwell [1968] 1 WLR 513.
[6] This is because irregularity affected not only a person's qualification to be admitted to holy orders in the first place but also a person's ability to exercise Holy Orders once admitted. This would not have been wholly academic once the rule of universal celibacy had been imposed because the existence of an irregularity relating to an old marriage might only come to light after a person had already been ordained priest.
[7] [2009] 3 WLR 248, [2009] PTSR 1251.
[8] Any other conclusion would seem very surprising: we have never heard it suggested that under the post-Reformation law of England a person whose spouse had died and who had subsequently remarried - or who, without having previously been married, married a widow or widower - was ineligible for admission to Holy Orders. But that would be the effect if the pre-Reformation canon law as to ‘bigamy’ and ordination had remained in force. While some of the impediments to ordination contained in the pre-Reformation canon law remained in force, others did not. As the Divisional Court observed in Kensit v Dean and Chapter of St Paul’s [1905] 2 KB 249, 256-7, “[t]he word “impediment” related originally to a number of matters, some of which can no longer be regarded as such - as, for instance, bastardy, and certain physical defects as the loss of a limb or eye - but included impediments which would still be considered as a bar to ordination, such as the fact that the candidate was an unbaptized person or was not of the requisite age for the orders to which he proposed to be ordained.”
[9] By virtue of s.5(1) Cathedrals Measure 1999 the functions previously exercisable by the dean and chapter under the 1533 Act are now exercisable by the College of Canons for which provision is made in the 1999 Measure.
[10] [1902] 2 KB 503 (a case relating to the election of Charles Gore as Bishop of Worcester).
[11] Per Lord Alverstone CJ at page 546
[12] The effect of s.1 will be amended by s.1 Vacancies in Suffragan Sees and Other Ecclesiastical Offices Measure 2010 when it comes into force so as to require only one person to be presented.
[13] See Phillimore, The Ecclesiastical Law of the Church of England (1895) at page 641: “About a century and a half after the Reformation a practice crept in of setting aside the law and of allowing the marriage bond to be dissolved, causa adulterii, by separate act of parliament in each particular case.” The common law – following canon law – treated the marriage bond as indissoluble.
[14] See footnote 2 above.
[15] As decided by the House of Lords in Thompson v Dibdin [1912] AC 533. Whilst one member of the court (Lord Halsbury) may have relied on a narrower ground for his decision, namely that those who married under the 1907 Act could not be said to be ‘persons of notorious evil life’ for the purposes of the rubric in the Book of Common Prayer, the majority of the court appears to have taken the view that marrying under the 1907 Act could not amount to lawful cause for the purposes of s.1 of the 1547 Act: see in particular Lord Loreburn at page 540: “It is inconceivable that any Court of law should allow as lawful cause [for refusing the Sacrament] the cohabitation of two persons whose union is directly sanctioned by Act of Parliament and is as valid as any other marriage within the realm.” and Lord Ashbourne at page 543: “The effect of [the 1907 Act] was to make such a marriage lawful for all purposes, entitled to be recognized as such within the realm or without, and without stint or qualification. I am unable to see any room for doubt that the direct effect of s.1 was to remove such marriages from the class of marriages prohibited by the statutes of Henry VIII, and to make the description of ‘open and notorious evil livers’ entirely inappropriate to those who came within its provisions. Such a marriage of unimpeachable legality could not be a ‘lawful cause’ under the statute of Edward VI.”
[16] The minutes of the Canon Law Steering Committee meeting of 3 March 1954 record the view that “the reference to bishops in Clause 4 of Canon LV is out of place and ought to be included in this Canon [i.e. Canon 53]”; and in January and May of 1955, the minutes of the Committee that: “The point was raised that the reference to bishops in section 4 of Canon 55 was out of place and that instead a similar provision referring to them should be included in Canon 53…”, which related specifically to the consecration of bishops.
[17] Canon C 2 (originally 53) in the revised canons dated January 1962 is entitled “Of the Consecration of Bishops”, which specifically applies to the consecration of bishops. There is no clause equivalent to that contained at C 4.3 relating to the remarriage etc. of a bishop.
[18] Any such policy should be made public. As said (admittedly in a very different context) by Sedley LJ in Walmsley v Transport for London [2005] EWCA Civ 1540 para 57 “ …it is right to say that it is inimical to good public administration for a public authority to have and operate such a policy without making it public…It also exposes such an authority to the risk of lawsuits based on ignorance of how it has gone about taking the material decision. In an such proceedings the policy would probably have to be disclosed.”