On Joining the Ordinariate – Some Questions and Answers on the Legal Position
June 22, 2012 4 Comments
This is interesting. Dated to early last year (when things were beginning) it has been recently posted on the ‘net. The C of E legal position:
TAC Priest in South Africa.
4 Responses to On Joining the Ordinariate – Some Questions and Answers on the Legal Position
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It shows that the Church of England is highly legalistic and confrontational in its approach to Canon Law issues unlike the Roman Canon Law which is pastoral.
@Joseph Golightly
Actually, Joseph, what is shows, how much the CoE is a creature of the state.
The advice is on the letterhead of a firm of solicitors because the cleric who is Registrar of the Province of Caterbury is a partner of that firm who are, effectively, the in-house lawyers of the Province. It is “legalistic” in the secular sense because the law of the CoE is esswentially the law of the land.
The first issue addressed is not a canon law issue at all, but the impact of the Ecclesastical Diabilities Act 1870 – an Act of .Parlaiment. And the suggestion is actuially quite a helpful one – it suggests that bishops might instruct their diocesan registrars to shoulder the expense of drawing up and enrolling the deed required to in effect laicise the cleric from the CofE point of view. Given that the process is not cheap, that seems to me quite a charitable suggestion.
Next it considers the quite complex issues relating to church property and which in effect make it virtually impossilbe to alienate a Cof E parish church, the position of the members of the PCC and all the steps needed. to deal with the position where a Vicar and some of the Officers of the PCC decide to enter the Catholic Church.
It addresses the very patoral issue that by the law of the land all persons residing in a parish (of whatever religion) have the right to marry and be burie in the CofE parish of their residence and so forth ans so on.
And, while the Canol Law of the Univesal Church is pastoral – it is every bit as legalistic – indeed more so. It is much more prescriptive and gives much less latitude to clergy to “do as they please” in their parish.
See for Example Book V on Temporal Goods – Tile I:-
Can. 1262 The faithful are to give support to the Church by responding to appeals and according to the norms issued by the conference of bishops.
Can. 1263 After the diocesan bishop has heard the finance council and the presbyteral council, he has the right to impose a moderate tax for the needs of the diocese upon public juridic persons subject to his governance; this tax is to be proportionate to their income. He is permitted only to impose an extraordinary and moderate exaction upon other physical and juridic persons in case of grave necessity and under the same conditions, without prejudice to particular laws and customs which attribute greater rights to him.
Can. 1264 Unless the law has provided otherwise, it is for a meeting of the bishops of a province:
1/ to fix the fees for acts of executive power granting a favor or for the execution of rescripts of the Apostolic See, to be approved by the Apostolic See itself;
2/ to set a limit on the offerings on the occasion of the administration of sacraments and sacramentals.
Can. 1265 §1. Without prejudice to the right of religious mendicants, any private person, whether physical or juridic, is forbidden to beg for alms for any pious or ecclesiastical institute or purpose without the written permission of that person’s own ordinary and of the local ordinary.
§2. The conference of bishops can establish norms for begging for alms which all must observe, including those who by their foundation are called and are mendicants.
Can. 1266 In all churches and oratories which are, in fact, habitually open to the Christian faithful, including those which belong to religious institutes, the local ordinary can order the taking up of a special collection for specific parochial, diocesan, national, or universal projects; this collection must be diligently sent afterwards to the diocesan curia.
That’s pretty prescriptive – and more so than in the CofE where bishops have far less authority over what goes on in the parishes of their dioceses.
And for what it is worth, that’s a good thing.
Thank you. Are you as Canon lawyer?
Joseph: Thank you for your thank you. No, I’m not a canon lawyer, but I’ve been conducting litigation in the English courts and in other jurisdictions for over 40 years. As you will now know, the fact that the Church of England is established by law, much of what governs the CofE is part of the ordinary law of the land.
As Mr Tighe points out on another thread, a particular CofE clergyman made an number of applications to our Courts contendinng that the CoE would be acting unlawfully if it proceeded to ordain females as CofE priests and was mighlily upset to be told, both at first instance by a Divisional Court of the High Court and subsequently by the Court of Appeal that (I summarise”) “the beliefs and and doctrines of the Church of England are what Parliament says they are.”. He brought so many cases before the Courts that eventually the Attorney-General successfully applied to have him declared a vexatious litigant – which means that he was prohibited from commencing any legal proceedings in any court without first having applied to the court for permission.
So, in effect, it matters not what the bishops of the CofE might believe save tthat a few of them sit in a legislative capacity in the House of Lords. Parliament is supreme – it could abrogate the doctrine of the Trinity for CofE purposes – just as it declared against transubstantiation by the Test Act of 1673. That act made it a precondition to appointment to any public office for the candidate to make a declaration against transubstantiation and receive the sacrament according to the rites of the CofE.
The wording of the declaration was: “I, N, do declare that I do believe that there is not any transubstantiation in the sacrament of the Lord’s Supper, or in the elements of the bread and wine, at or after the consecration thereof by any person whatsoever.”
No Catholic could sign that and therefore no Catholic could hold any public office (very widely defined). These conditions were not removed until 1828 and 1829 respectively.