Jersey & Guernsey Law Review – October 2012
Shorter articles
1623 REVISITED
William Bailhache
1 At the Royal Palace at Greenwich, on 21
June 1623, George Abbott, Archbishop of Canterbury, Lancelot Andrews, Bishop of
Winchester, and John Williams, Bishop of Lincoln, signed an Order in Council
given by King James I, addressed to the Bishop of Winchester, the Governor, Sir
John Peyton, the Bailiff and Jurats and to all ministers, officers and
inhabitants of the island, ratifying and approving the Canons and
ecclesiastical constitutions of the Church of England in Jersey. They had been
drawn up on the admission of the new Dean because it was thought necessary to
settle the regular government of the Island in ecclesiastical causes, and
conform it to that which applied in the realm of England, as near as might be
convenient. Indeed, the King had persuaded the Convocations of Canterbury and
York (see below) to adopt the Canons of the Church of England in 1603–1606
respectively. They are generally referred to as “the 1604 Canons”
2 The
1604 Canons in England
covered a variety of subjects, some trivial and some important. Some repeated
pieces of general law of the Church. Others dealt with the Reformation changes.
Some went into extraordinary detail such as Canon 74 which prescribed the dress
of clergymen in and out of church, and even in their beds (at least in their
own houses). It is interesting that even as long ago as 1623 there was no
assumption that a piece of English church legislation would be repeated word
for word in Jersey because the 1623 Canons
definitely do not attempt that.
3 Some
of the history has been referred to in Advocate Kelleher’s article
concerning the Poingdestre commentaries on the Canons. Reading between the lines
of the Order in Council, one suspects that there had been the usual jockeying
for position amongst the Dean, the Governor and the Bailiff. The Order does
make it clear that the Dean and the Ministers prepared the
draft of the Canons, which they presented to the King, but the Bailiff and
Jurats took exception to them and three Jurats—all de Carterets—made
personal representations to the three signatories of the Order. We do not have
the first draft unfortunately, but it was “read, examined, corrected and
amended” so that it was by consent of those Jurats and the Dean that the
Canons were settled. They were ordered to be “duly observed . . .
for the perpetual government of the said Isle in Causes Ecclesiastical”;
but interestingly, the order made provision that the Canons could be amended by
mutual consent of the Bishop of Winchester, the Governor, the Bailiff, Jurats,
Dean and Ministers and other royal officers of the Island—an early
recognition of the possible exercise of a power of amendment by the Island
authorities of a legislative Act of the Sovereign, qualified only by the need
to have the Bishop of Winchester’s consent.
4 The
original Canons were drawn up in French of course, but by the time of the
publication of the 2nd edition of Falle’s Caesarea, published in
1734, there was an English translation in the opposite column. They contain
much that is of historical interest to those with that turn of mind. The first
Canon is unsurprisingly about the supremacy of the King. But why does it
contain this language—
“. . . no manner of obedience or
subjection is due, within the Kingdoms and Dominions of his Majesty to any
[foreign] Power; but that the King’s Power within the Kingdoms of
England, Scotland and Ireland
and other his Dominions and Countries, is the highest Power under God . . .”?
5 One
can understand why in those days the King might not pay too much attention to
the relatively newly acquired colonies such as Virginia. But what happened to Wales? It would
have been enough to get the Welsh Nationalists moving if they had been able to
understand French! No—the clue lies in the fact that the Church of
England then included the two provinces of Canterbury and York, which consisted
of 35 dioceses and which matched the 52 counties of England and Wales,
supplemented by the Channel Islands and the Isle of Man. The Welsh church was
not disestablished until the Welsh Church Act 1914.
6 Today
it would be unusual—and contrary to the European Convention on Human
Rights—to contemplate legislating for the required behaviour of the
people on a Sunday. But then, all persons were enjoined to submit to divine
service on the Lord’s Day, which was to be hallowed by exercises of
public prayer and the hearing of God’s Word. Divine service would also be
read on Wednesday and Friday mornings; and if the Dean and his Ministers could
secure the consent of the Governor and the Civil Magistrate (the Bailiff), extraordinary days of fasting could be celebrated when an
urgent occasion warranted it. This, the 6th Canon, is an example, even in those
days, of a compromise between the Church and the secular authority.
7 By
Canon 7, godfathers could only be admitted to that role if they were
communicants,
and in Falle’s day this was still strictly observed so that a godfather
from another parish would only be allowed if he brought with him a certificate
from his Minister to that effect. Women of course could not act as godmothers
on their own.
8 Fathers
and masters of a family were exhorted to ensure that their children and
domestic servants be instructed in the knowledge of God and that they went to
church.
9 The
Canons contained many other provisions and there is no need to repeat all of
them here. They established, however, that the Dean in 1623 was a good
negotiator, because the jurisdiction to issue probate of wills and letters of
administration (which continued until the Probate (Jersey)
Law 1949) was conferred upon him. The Canons also contained detailed provision
for the offices of church wardens and almoners. The wardens had a tough job—not
just the ordinary tasks of keeping the church in good repair and keeping the
books, but also searching places suspected of being gambling dens during divine
service and also, with the assistance of the Connétable, searching
taverns and tippling houses to round up the recalcitrants to attend church and
to hear the homilies of the minister.
10 Although
there had been some small changes to these Canons in the mid-1900s, these 1623
Canons remained largely intact until 2012; this is not really a complete
insular disgrace as the 1604 Canons in England were not repealed and replaced until
1964 and 1969, and we are familiar with the concept of seeing how English
legislation works before we adopt it! By an Order in Council on 14 March 2012,
Her Majesty in Council ordered the registration of new canons—the Canons
of the Church of England in Jersey. The title
to the new Canons is of interest in itself—they are not the Canons of the
Church of Jersey,
but it is recognised that there are differences between the Island and the kingdom of England—hence
the canons of the Church of England in Jersey.
Similarly, it has always been the view that the church in Jersey is attached to,
but not part of the diocese of Winchester.
11 But what are the Canons? The sources of canon law—as
distinguished from the Canons—are really these:
1. Theology, to be
garnered from the usual sources, primarily the Bible, but also the patristic
writings, the pronouncements of the Lambeth conferences, the liturgical
formularies such as the 39 Articles and the Book of Common Prayer, and much
else besides. It is curious that theology, often said to be the queen of
sciences, is so imprecise in its sources.
2. The whole body of pre-Reformation
law save that of course that has been changed by the Reformation, such as the
doctrine of papal supremacy or of transubstantiation.
3. The common law of England.
4. Ecclesiastical
legislation. This comes in three forms—Acts of Parliament, Measures and
Canons.
12 This
list prompts many questions. What is sometimes forgotten today is that the idea
of the church being one body and the state another is, compared with the time
the church has existed, of relatively recent origin. Those who were members of
the Church of England were members of the Commonwealth of England.
It was only the Reformation that saw the introduction of the practice of
calling the clergy by the name of the church, as in the Act of Appeals, which
describes the “spirituality now being usually called the English Church”. It is interesting that
although it has become common practice today to talk about the church of
England as the “Established Church”, there has never been any
formal Act of Parliament which sets this out as the legislature’s choice
of the preferred or official religion (unlike the express legislation which
established the Presbyterian church in Scotland). Until the days of Henry VIII
it would not have occurred to anyone that there could be a hard and fast
dividing line between church and state. There were temporal and spiritual
courts and both were the King’s courts. The judgments of both were
effectively enforced. Thus the old common law of
the church and state made “heresy” a penal
offence, where that term was interpreted as dissent from the church. The Acts
of Uniformity, passed in the period from Edward VI to Charles II, imposed
serious penalties on those dissenting from the doctrines established. Later,
these were supplanted by the various Toleration Acts, and of course more
recently, the Human Rights Act 1998 giving effect to art 9 of the European
Convention and ensuring that freedom of religious belief is enshrined in the
law.
13 The
development of the difference between church and state was emphasised by the
emerging strength of parliamentary democracy. It was obvious that the imperial
parliament was composed of some people who were members of the Church of
England and some who were not. In the 16th and 17th centuries, parliament
recognised that the body of church law was best left to the church. The
Convocations of Canterbury and York, the historic church parliaments, were left
to make Canons, which still required royal assent. But these were of limited
effect—they could not overrule the law of the land, whether statutory or
the common law, and they only affected the ecclesiastical personae such as the
clergy, churchwardens and chancellors. The duty of parliament to the community
at large was not always easily reconciled with its duty to the church. Thus
arrived the Church
of England Assembly
(Powers) Act 1919, which gave statutory recognition to the National Assembly of
the Church of England and conferred on that Assembly, consisting of the
Convocations of Canterbury and York, legislative authority for Measures which
would now carry the authority equivalent to an Act of Parliament, and indeed
can repeal Acts of Parliament. Nonetheless, Parliament has not surrendered its
powers—although it does not create church legislation, that legislation
needs royal assent and this cannot be given unless both Houses of Parliament
have adopted a resolution that the Measure be submitted to the Queen for
assent.
14 In
1970, the Church Assembly was renamed the General Synod of the Church of
England as part of a new and reorganised scheme of church government which had
been adopted in the Synodical Government Measure 1969. This Measure was
extended to Jersey by Order in Council in 1970 by the Synodical Government (Channel Islands) Order 1970. As a result, there is a
Deanery Synod in Jersey, which sends its messages (by resolutions) to and
receives messages from the Diocesan Synod in Winchester, which similarly gathers in the views of the other deaneries in the diocese for
transmission to the General Synod. In each synod, there are separate houses of
clergy and laity, and in the General Synod there is also the house of bishops.
Jersey sends one lay representative to the General Synod and there is a place also
for the Deans of Jersey and Guernsey
alternately every five years. Jersey and Guernsey
each sends a number of representatives to the Diocesan Synod. Elections to the
Deanery Synod in Jersey take place every three
years. Each parish has lay representatives and a clergy representative as well.
15 Ecclesiastical
legislation thus comes in the form of Measures and Canons, the former being the
superior in the sense that they have the effect of a statute of Parliament, the
latter being probably the more ancient form of legislation.
16 Measures,
like Acts of Parliament, were generally thought not to apply in Jersey. This was potentially inconvenient. Thus, the
Channel Islands (Church Legislation) Measures of 1931 and 1957 set out the arrangements
for the extension of Measures to the Channel Islands.
The process is this. The Bishop of Winchester draws up a scheme for extending a
measure to one or both Bailiwicks and submits it to the General Synod. There it
can be either adopted or rejected but not amended. If adopted, it is presented
to the Queen for extension to the relevant Bailiwick by Order in Council. The
Measure requires the Bishop to have consulted the Decanal Conference in the Island, now the Deanery Synod, and transmitted the scheme
to the Home Secretary, now the Justice Secretary, so that it is considered by
the States. In Jersey, this is of course now a
necessary precondition of registration of the Order in Council by reason of art
31 of the States of Jersey Law 2005. Thus for example, the legislation for the
ordination of women arrived in Jersey by the Women Priests (Channel Islands)
Order 1999, applying with some amendments the Priests (Ordination of Women)
Measure 1993 and the Ordination of Women (Financial Provisions) Measure 1993 to
the Channel Islands, after the Scheme prepared by the Bishop of Winchester had
been considered by the States and adopted by the General Synod.
17 Work
on revising the 1623 Canons started in Jersey
in the early 1990s. The Legislation Committee of the Deanery Synod, consisting
of lay and clergy representatives, decided to start with the then current
English canons, and revise them for use in the Island.
It soon became apparent that the new Canons would cover much material that was
suitable for Measures as well as Canons, because in Jersey there remains the
crossover between the church and the parochial authorities
as a matter of civil law, such as in, for example, the Loi (1804) sur les assemblées paroissiales. The new Canons
therefore provided the structural arrangements for the church in the Island as
well as providing the formal direction for the Island clergy which the late
Canon Lawrence Hibbs, erstwhile member of the Deanery Legislation Committee, in
an article in the Bulletin of the Société
Jersiaise
emphasised as the driving reason for updating from 1623, for without it
reliance would have to be placed on those historical arrangements which could
not be expected to cut the mustard in the twentieth century.
18 In
an article of this kind one can only dip into the detail—it may be of
contemporary interest to note that Canon B30—
“affirms according to our Lord’s teaching,
that marriage is in its nature a union permanent and life-long, for better for
worse, till death them do part of one man and one woman to the exclusion of all
others on either side . . .”,
which would
prohibit gay marriage; or Canon C2.5 which says firmly that “Nothing in
these Canons shall make it lawful for a woman to be consecrated to the office
of bishop”, another hot topic for the General Synod at its last session.
It may be thought surprising that it was thought necessary to include this
Canon because, apart from anything else, it would seem unlikely in the extreme
that any bishop would be consecrated—by an archbishop—in Jersey, which has no diocese of its own.
19 The
position of the Dean is explained in more detail. Of course in 1623 the Dean
was expected to act as the Bishop, because communication and transport links
were then such that the Bishop of Winchester had a relatively small part to
play in Island church life. Indeed it was
really only from the time of Bishop Colin James in the 1980s that the Bishop of
Winchester commenced regular visits to the Island.
Even so, while Canon C16 provides that the Bishop of Winchester is the chief
pastor of all that are in the Island, both
laity and clergy, it also goes on to set out that the Dean is his Commissary
General and can exercise all the Bishop’s jurisdiction in accordance with
his Letters Patent and the Bishop’s own commission. Flesh is put on these
bones by the detail of Canon C17—such as the requirement for the Dean or
his vice Dean to visit every parish in person every three years for the purpose
of ensuring that everything is being satisfactorily
provided by the Church wardens, who are the Dean’s wardens, and that any
problems are brought to his attention.
20 The
big stumbling block in taking the revised Canons forward was the question of
clergy discipline. The previous arrangements had matters of discipline brought
before the Dean who would have the advice of the Ecclesiastical court, with an
appeal from the Dean’s order to the Bishop. This was structurally
hopeless in the late 1990s and the coming into force of the Human Rights Law
made things worse, assuming one took the view that the Dean was a “public
authority” for these purposes. Even without such considerations, the fact
was that the Dean could not at the same time be the provider of advice to one
of his clergy colleagues who was facing problems, and at the same time have all
that knowledge available to him for the purposes of applying some disciplinary
sanction at a later date. In addition, the ministers who formed the
ecclesiastical court would not want to be sitting in judgment on one of their
colleagues. Before this became politically popular, the new Canons came up with
the idea of sharing the resources of Guernsey and Jersey, although securing
agreement to follow a different disciplinary arrangement from that which
existed in England
took some negotiation. The Canons establish created a new disciplinary panel,
comprising clergy and lay members, presided over by the Vice President of the
Clergy Disciplinary division of the ecclesiastical court who is to be a Royal
Court Commissioner or an advocate or solicitor of at least 10 years’
standing. The clergy members of the panel would be drawn from the Guernsey clergy, while there would be a sufficiency of
lay members who did not know the clergy member faced with disciplinary
proceedings to ensure a fair hearing. Arrangements of this kind were intended
to ensure that the disciplinary tribunal would have a good handle on insular
life in a way that might not be guaranteed if the hearing had been conducted in
England,
and yet would also be a human rights compliant tribunal able to deliver justice
in the cases before it.
21 Once
the new Canons were ready for adoption, the remaining issue was how to bring
them into force. The options were a Scheme drawn up by the Bishop and put to
the General Synod for extension to the Island under the Church Legislation (Channel Islands) Measures of 1931 and 1957, or an Order
in Council from Her Majesty. The former suffered the disadvantage that the
General Synod would still be faced with a document that did not quite look like
its own Canons and there was a risk of uninformed debate on why peculiarly Jersey provisions had been included. The latter was
something of an oddity for 2012 in that the Crown has not legislated directly
for Jersey without the authority of parliament
in any matter for quite some time. In the event, the problem was overcome by
the States approving the draft of the Canons so that they
might be submitted to the Crown with a request for the issue of an Order in
Council, a not too dissimilar process than that which applied in 1623, but
perhaps one which is rather more democratic. The States were advised that the
draft had been approved by the Bishop of Winchester, the Bailiff and the
Lieutenant Governor (for consistency with the provisions of the 1623 Order in Council),
by the Ecclesiastical Court
and the Deanery Synod. All bases covered. Praise the Lord!
William Bailhache has been the Deputy Bailiff of Jersey since 2009. He held the office of Attorney General
of Jersey from 2000 until his appointment as
Deputy Bailiff.