Canon 113

Canon 113 of the 1603 code read (in the standard English translation of the definitive Latin text) as follows:

The text falls into three parts: the first (‘Because…’) sets out the reason for the enactment, the second (‘We ordain…’) is the enactment itself, and the third (‘provided always…’ – the proviso) qualifies the enactment in one particular. The meaning of the first two parts is plain: because those lay officers and others who ought to address ‘sin and wickedness’ among the laity often failed to do so, the canon permitted incumbents (or, in their absence, their curates or substitutes) to join the lay officers in presenting (reporting) to the court of the archdeacon or bishop those whose behaviour needed to be addressed – or, if the lay officers were unwilling, to do so without them.

The traditional understanding of the proviso is that it reflects the seal of confession – the requirement, enshrined in Canon 21 of the Fourth Lateran Council and in an English provincial canon included in Lyndwood’s authoritative Provinciale,Footnote ⁵ that priests should under no circumstances reveal sins disclosed to them in sacramental confession. This understanding of the proviso is by no means a modern novelty.Footnote ⁶ In his Codex Juris Ecclesiastici Anglicani (1713), Edmund Gibson quoted the proviso at the end of the first chapter (‘Confessions, in order to Penance’) of Title XXI (‘The Two Popish Sacraments of Penance and Extreme Unction’), with a marginal gloss referring back to the canon in Lyndwood’s Provinciale.Footnote ⁷

It would seem that the proviso was added because without it the permission given in the new canon might appear to allow priests to break the seal, which would mean that the new canon would conflict with the inherited canon included in the Provinciale. The meaning of the proviso is not as clear as it might be (was it perhaps drafted hastily, as an afterthought, to avoid the potential conflict with the inherited canon law?), but the sense would seem to be (1) to underline that the main body of the canon is permissive (‘we do not any way bind the said Minister by this our Constitution’): it does not require the clergy to present those guilty of crimes to the Ordinaries and (2) that the permission given in the main body of the canon is qualified by a requirement (‘we … do straitly charge and admonish him … under pain of irregularity’Footnote ⁸ ), not merely a recommendation, that anything disclosed in confession should not be revealed by the priest to anyone. When the canon was promulged, the caveat ‘except they be such crimes as by the laws of this realm his own life may be called into question for concealing the same’ was already a dead letter, because there were in fact no longer any such crimes.Footnote ⁹ However, the caveat serves to underline that the proviso means that sins disclosed in confession should not be divulged in order to comply with a legal requirement imposed by the state – unless failure to comply would incur the death penalty.Footnote ¹⁰

The proviso to Canon 113 was therefore not intended to be a substantive enactment of the seal of confession: rather, it reflected an existing duty – embodied in the canon included in Lyndwood’s Provinciale – not to break the seal. The fact that the proviso reflected the pre-Reformation canon could thus be taken as evidence of the latter’s continuing force after the Reformation by virtue of section 7 of the Submission of the Clergy Act 1533 and/or as ‘custom’.Footnote ¹¹

Report of the Canon Law Commission (1947)

The 1947 report of the Archbishops’ Commission on Canon Law recommended two draft canons relating to the ministry of absolution: LXV (Of Priests hearing Confessions) and LXVI (Of the Duty of Priests towards any who resort to them to confess any Secret or Hidden Sin).Footnote ¹²

Draft Canon LXV (in four sections, covering nearly two pages) forbad any priest to hear a private confession unless he fell into one of one of seven categories:

1. i. Suffragan and assistant bishops within their diocese

2. ii. Deans, provosts and *residentiary canons within their cathedral

3. iii. Deans and *canons of collegiate churches within their churches

4. iv. Priests with cure of souls in their churches and in relation to those in their cure

5. v. *Priests with a general licence within the diocese

6. vi. *Chaplains within their institutions and in respect of their residents

7. vii. Religious superiors in respect of members of their communities

Those asterisked would also require permission from the minister with the cure of souls. Only for priests with cure of souls, and only in respect of those in their cure, would permission extend beyond their diocese. Bishops could additionally give any priest written authority to hear confessions in all or part of a diocese in respect of all or some persons. And all priests could hear confessions of those in danger of death or for ‘some other urgent or weighty cause’.

Draft Canon LXVI re-enacted the seal of confession as a substantive enactment reflecting the inherited canon law, rather than merely as a proviso intended to be consistent with it. Its terms were therefore much fuller than the proviso to Canon 113:

The canons cited in a marginal note as those that the draft canon was intended to codify were Canon 21 of the Fourth Lateran Council (1215), the canon in Lyndwood’s Provinciale, and Canon 113 of 1603.

Draft Canon XXXVA: 1950–1953

The Upper House of the Convocation of Canterbury began considering Draft Canon LXV in September 1950. The evangelical Bishop of Rochester, Christopher Chavasse, had put down an amendment to replace the whole canon with a short text quoting the end of the Holy Communion exhortation in the Book of Common Prayer, together with a statement that only priests who are office-holders and those with written permission from their bishop have authority to exercise such ministry.

This prompted the Archbishop of Canterbury, Geoffrey Fisher, to propose a more elaborate replacement. Clause 1 of this:

1. i. Began with a general reference to confession of sins in words drawn from the Prayer Book: with small amendments this eventually became Canon B 29 para (1);

2. ii. Quoted the Holy Communion exhortation: with only very minor stylistic amendment, this is now Canon B 29 para (2);

3. iii. Stated that ‘no man should come to the Holy Communion but with a full trust in God’s mercy and with a quiet conscience’; and

4. iv. Quoted the Visitation of the Sick regarding confession: with small amendments this became Canon B 29 para (3).

Clause 1 of Fisher’s draft canon was approved, as was his suggestion that it be moved from the section on Ministers (now section C of the Canons) to the section on Divine Service and Administration of the Sacraments (now section B), in which it would follow the canon on confirmation as Draft Canon XXXVA.Footnote ¹³ Thus, Canon B 29 (including its location in what became section B of the Canons) was Archbishop Fisher’s idea, and – with small amendments – its first three paragraphs are his work.

The new Draft Canon XXXVA was sent down to the Canterbury Lower House, which approved it with amendments in May 1951. The Upper House considered these amendments and produced a revised draft, and the joint Steering Committees then produced their own revised text. The Steering Committees omitted the third limb of Fisher’s original draft, arguing that comment on the state in which people should come to Holy Communion was not relevant to a canon about confession and should instead be considered in the revision of what eventually became Canon B 15 (Of the receiving of Holy Communion).Footnote ¹⁴

This revised text was approved by the York Convocation in September 1951, by both Canterbury Houses in January 1952, and by the House of Laity of the Church Assembly (where it was introduced by Oswald Clark, a future Chairman of the House of Laity) in November 1953: it thus had ‘stage 1 approval’.Footnote ¹⁵ (It had been agreed that, although the power to legislate by canon belonged to the Convocations, the House of Laity of the Church Assembly would be consulted about each canon.) The revised text approved at stage 1 differed in only minor points from the final text of paras (1)–(3) of Canon B 29 (as promulged in 1969 and not subsequently amended).Footnote ¹⁶

Draft Canons LXV and LXVI: 1950–1951

Clauses 2 and 3 of Fisher’s September 1950 draft were intended to replace draft Canon LXV. Clause 2 stated positively and more succinctly (although still in four sub-paragraphs) which priests could normally hear confessions, while Clause 3 retained the permission for all priests to hear confessions of those in danger of death or if there is ‘some other urgent or weighty cause’. After debate in the Canterbury Upper House, Fisher revised this part of his proposal.Footnote ¹⁷

The Canterbury Upper House resumed its consideration of Fisher’s draft, as now revised, in May 1951. Bishop Chavasse of Rochester proposed a new, simpler draft addressing the matters covered by both Canon LXV (who can hear confessions) and LXVI (the seal). In four paragraphs, this would:

1. i. Limit the hearing of confessions to those who had been in priest’s orders for two years and had the requisite authority either by virtue of the office to which they had been instituted or licensed or by holding the bishop’s written permission;

2. ii. Limit the hearing of confessions in any place to those with either the permission of the minister with the cure of souls or the express authority of the bishop;

3. iii. Retain the permission in respect of danger of death or ‘some other urgent or weighty cause’;

4. iv. Re-enact the seal in terms that followed the proviso to Canon 113 of 1603 much more closely, but without the redundant reference to peril to the priest’s life or the ‘secular’ word ‘crime’:

After some debate on the wisdom of enacting, or alternatively of omitting, a reference to the seal, the bishops approved the Bishop of Rochester’s draft.Footnote ¹⁸ The York Convocation, meeting in full Synod in York at the same time, held a general discussion only and referred the matter to the Steering Committee. Archbishop Garbett concluded the debate with these words: ‘I would only add my very strong feeling that nothing ought to be done to water down or reduce in any kind of way the absolute secrecy of any statement made to us in confession’.Footnote ¹⁹

The Bishop of Rochester’s draft was duly recommended by the joint Steering Committees in their 1954 report as Draft Canon 65, replacing the 1947 Draft Canons LXV and LXVI. (In this report, Roman numerals were replaced by Arabic numerals: so, for example, Draft Canon XXXVA became Draft Canon 35A.) Clauses 1–3, which replaced Canon LXV, filled half a page instead of nearly two pages. Curiously, a note stated ‘Clauses 1 to 3 were approved by Canterbury U.H. in May 1951ʹ: the fact that the Upper House had approved Clause 4 at the same time was left unmentioned.Footnote ²⁰

Draft Canon 65: 1954–1956

In May 1954 the York Convocation, meeting in full synod, approved the new Draft Canon 65 in both Houses (with three votes against in the Lower House), but with some debate about the limitation of hearing confessions. The Superior of the Community of the Resurrection, Fr Raymond Raynes CR, questioned the more restrained wording regarding the seal. The response of the mover of the motion, Canon G W O Addleshaw (who had been Secretary of the Canon Law Commission), implied that the Steering Committee thought there was more chance of getting Crown approval if Clause 4 did not go beyond the terms of the proviso to the 1603 Canon.Footnote ²¹

In January 1955, in response to the York debate and debate in the Canterbury Lower House, the Steering Committees recommended a revised form of Clause 1. The previous lengthy prelude was removed, as it effectively duplicated what was now said in Draft Canon 35A.Footnote ²² So too was the requirement for a priest to have been in priest’s orders for two years before hearing confessions, which was thought overly prescriptive. A new reference to bishop’s regulations was intended to allow for institutions such as retreat houses. The new text read:

The new text also included a stylistic change to Clause 2 (‘this ministry’ instead of ‘such ministry’).Footnote ²³ These amendments were approved by the York Convocation, meeting in full synod, in July 1955.Footnote ²⁴

In October 1955 the amendments to Draft Canon 65 were also approved by the Canterbury Lower House, but with the substitution of ‘office’ for ‘benefice’. In May and October 1956 there was a tussle between the Canterbury houses over the latter point. The Upper House resisted the change because it would permit assistant curates (holders of an office but not a benefice) to hear confessions as of right, rather than only with the bishop’s written permission: the Lower House gave way.Footnote ²⁵

The Steering Committees also proposed to remove from Clause 2 the bishop’s power to permit a priest to hear confessions without the permission of the minister with cure of souls. The York Convocation approved this proposed omission, but it was initially resisted by the Canterbury Upper House. In October 1956 the Canterbury Convocation gave in to pressure from the Steering Committees and the York Convocation on this point.Footnote ²⁶

Draft Canon 35A: January 1958

The Convocations and the House of Laity had now approved, at stage 1, Draft Canon 35A (Of Confession of Sins). The Convocations (but not the House of Laity) had also approved, at stage 1, Draft Canon 65 (Of the Hearing of Confessions). In January 1958 the Steering Committee proposed deleting Draft Canon 65 and instead adding two additional Clauses (4 and 5), based on it, to Draft Canon 35A (which ultimately became Canon B 29), so that all aspects of confession and absolution would be addressed in the same canon.Footnote ²⁷

The first paragraph of the proposed new Clause 4 was a boiling down of Clauses 1–2 of Draft Canon 65:

The second paragraph of the proposed new Clause 4 was a stylistic re-wording of Clause 3 of Draft Canon 65 (a proviso relating to danger of death or other urgent or weighty cause). In Canon B 29, Clause 4 is a single paragraph, but it differs only stylistically (and in punctuation and capitalisation) from the 1958 version.Footnote ²⁸ The proposed new Clause 5 was Clause 4 of Draft Canon 65, embodying the seal in words based on the 1603 proviso.

A note in Archbishop Fisher’s copy of The Revised Canons of the Church of England Further Considered (1954) says that the new Clauses 4 and 5 were drafted by Sir Thomas Barnes.Footnote ²⁹ According to the Oxford Dictionary of National Biography, Barnes was ‘the outstanding government lawyer of his generation’. After retiring as Treasury Solicitor in 1953, he took a leading part in the canon law revision project.Footnote ³⁰ According to Fisher’s note, Barnes had wanted to qualify the seal by adding to Clause 5 ‘unless compelled to do so by the laws of this Realm’. Clearly, the Steering Committees would not support such a qualification.

Introducing the revised text to the York Convocation in January 1958, Canon Addleshaw (who was now a Deputy Prolocutor of the Lower House, and later became Dean of Chester) explained:

The conflated Draft Canon 35A – including Clause 5, based on the 1603 proviso – was approved (at stage 1) by both Convocations in January 1958 without any debate (other than a quibble from one York member about the phrase ‘secret and hidden sin’ in Clause 5). Introducing the business to the Canterbury Convocation on behalf of the Steering Committee, Canon Eric Kemp (later Bishop of Chichester) concluded his speech with a gnomic comment that there ‘might be further discussion’ about Clause 5 at stage 2.Footnote ³²

The Act of Convocation: 1958–1959

In fact, that discussion arose only nine months later. As Secretary of the Steering Committee, Canon Kemp explained to the Convocation of Canterbury in October 1958 that the Crown would not grant Royal Assent to a Canon that did not accord with the present law of England, and furthermore, both government and ecclesiastical lawyers advised that in their view:

This legal advice was supplemented by ‘political advice’ from the government lawyers that ‘there would be the very strongest opposition in Parliament to any attempt to get the law changed in this respect’, since others, including Roman Catholic priests, doctors and lawyers, could be expected to demand similar legal exemptions. The Steering Committee therefore proposed that Clause 5 be deleted from the draft Canon. Canon Kemp added that it was not proposed to repeal the existing Canon 113. Therefore, ‘if the proposal to drop Clause 5 was accepted, the situation with regard to the seal would go on being what it had been in the past’.Footnote ³⁴ Canon Kemp later added that legal advice had indicated that, if the words ‘subject to the Law of England’ were added to the Clause, that would remove any objection. The Steering Committee had unanimously rejected that possibility, however, because it would ‘qualify the obligation of the seal’ and to do that would attract ‘the strongest opposition from very large numbers of people – including … members of the Upper House’.Footnote ³⁵

On 30 September 1958 the proposal to delete Clause 5 was ‘heavily defeated’ in the York Convocation. As Canon Kemp put it when reporting their decision to the Convocation of Canterbury the following day, ‘They wished to retain the Clause and to face whatever might come’.Footnote ³⁶ When the Convocation of Canterbury debated the proposal in full synod, concern was expressed at the possibility of the Church deferring, on a matter of doctrine, to Parliament. The first speaker, Canon A C Williams, said:

The Rev’d G B Timms (later Archdeacon of Hackney), spoke even more strongly:

He suggested at least postponing the deletion of Clause 5 until the Convocations had passed a resolution upholding the seal of confession as absolute. In this he was supported by the next speaker, Canon F F G Warman (later Archdeacon of Aston), who began by saying that ‘as an Evangelical, he supported wholeheartedly what Mr Timms had said’; he was further supported by the Bishop of Exeter, Robert Mortimer, and then, from the chair, by Archbishop Fisher.Footnote ³⁹

When the Lower House debated the matter on 2 October, an amendment was duly moved ‘That the proposal to delete Clause 5 be reconsidered at such time as the obligation of the seal of the confessional shall have been affirmed by Act of Convocation’. In the debate, doubt was expressed as to whether the legal advice was correct: it was noted that some ecclesiastical lawyers took a different view, given that the canons form part of the law of England. This point was academic, however, since the Government would be advised by its lawyers that a canon containing this Clause should not receive Royal Assent. The proposal to defer consideration of Clause 5 until a suitable Act of Convocation had been passed was carried, as it was later in the Upper House.Footnote ⁴⁰

In his Presidential Address to the Convocation of Canterbury on 28 April 1959, Archbishop Fisher summarised the position as follows. ‘First, there is little reason to be dissatisfied with the working of the present position, and nobody wishes to challenge the principle of the seal …’. Secondly, although there were contrary opinions, the view of the Crown’s law officers that Clause 5 could only be approved if Parliament granted a statutory exemption to the duty to answer a judge in a court of law (which it would not) had to be accepted. ‘Thirdly, … it would be unwise and widely misunderstood if Convocation merely dropped Clause 5.’ However:

The archbishop explained that Canon Kemp would therefore move a motion to reaffirm the text of Clause 5 of the draft Canon as ‘an essential principle of Church doctrine’. If both Houses of the Convocation approved this, the archbishop, as president, would declare it to be an act of convocation, giving it a higher status than a mere resolution.Footnote ⁴¹ (Acts of Convocation were the forerunners of the present acts of synod, which are described in the Standing Orders of the General Synod as ‘the embodiment of the will or opinion of the Church of England as expressed by the whole body of the Synod’.Footnote ⁴² )

The next day, 29 April 1959, Canon Kemp moved the following motion in full synod:

During the debate, the Venerable Maxwell Dunlop, Archdeacon of Aston, argued that if a man confessed to a murder for which another man was to be hanged, a priest should be able in conscience to break the seal.Footnote ⁴⁴ This would seem to be the only occasion in the 22 years from 1947 (when the Canon Law Commission’s report was published) to 1969 (when the 1603 proviso was left unrepealed) when a reservation about the principle of the seal of confession was expressed in a Convocation debate. There was also some discussion of the terms of the motion and the sense in which Evangelical Anglican clergy were covered by it. In response, the High-Church Bishop of Oxford, Harry Carpenter, commented that it did not address confidential pastoral conversations in general but was intended to apply to ‘occasions … in which the penitent, by whatever procedure, said “I am guilty of sin before God”’.Footnote ⁴⁵ The Reverend Maurice Wood (a leading Evangelical who was Vicar of St Mary’s Islington, and subsequently Principal of Oak Hill Theological College and Bishop of Norwich), commented:

Archbishop Fisher commented in response:

At the end of the debate, the Chronicle of Convocation recorded, ‘[t]he Resolution was carried without dissent in both Houses’. The Archbishop then said, ‘[t]he declaration of principle contained in Resolution 1 has been passed in both Houses without dissent, and it is an important principle. In view of that fact, I now declare it to be an Act of Convocation’.Footnote ⁴⁷ The York Convocation passed the resolution (in the form ‘That this Synod…’) the same day, without recorded opposition.Footnote ⁴⁸

Further debate over Clause 5 of Draft Canon 35A:  April 1959

Securing agreement to delete Clause 5 of the draft canon was more difficult, however. Addressing the York Convocation on the day before the resolution reaffirming the seal and the deletion of Clause 5 were to be debated, Archbishop Michael Ramsey had pleaded that prolonged discussion should be avoided: ‘The reports of such discussion may suggest quite wrongly that there is any [sic] weakening or doubt or novelty in a principle which from time immemorial we have practised in conscience towards God’.Footnote ⁴⁹

Introducing the proposals, the Bishop of Chester, Gerald Ellison, referred to the case of Timothy Evans and John Christie, who were hanged for the Rillington Place murders. The Anglican prison chaplain had given to a subsequent investigation information from a non-sacramental pastoral conversation with Christie, but the Roman Catholic priest to whom Evans had made his confession had not been asked to give evidence to the investigation. Defending the difference in the House of Commons in 1953, the Home Secretary, Sir David Maxwell Fyfe, had said, ‘It is entirely news to me that it is possible for contemplation that a statement made sub signo confessionis could be given at all’. The Anglo-Catholic MP Tom Driberg had intervened: ‘I hope that the Right Hon. and learned Gentleman is not suggesting that there is any difference on that point between the Churches’, to which the Home Secretary had replied, ‘I would not suggest that for a moment’.Footnote ⁵⁰

There were four strong speeches against deleting Clause 5, the first by the High-Church Dean of York, Eric Milner-White. The only speaker in favour, the Archdeacon of Auckland, Charles Stranks, intervened at the end with a brief impromptu speech. He commented,

The Convocation thought otherwise, however. While the Upper House voted 7 to 4 to delete Clause 5, the Lower House voted 48 to 29 against.Footnote ⁵²

The Canterbury Convocation considered the proposal to delete Clause 5 on 30 April, the day after it passed the Act of Convocation. In the Upper House, the evangelical Bishop of Rochester (Chavasse) and the High-Church Bishops of Exeter (Robert Mortimer) and Lincoln (Kenneth Riches) all spoke against deleting Clause 5, while the evangelical Bishop of Leicester (Ronald Williams) argued that consideration of the proposal to do so should be postponed. Only Fisher (at length, repeatedly, and apparently with increasing exasperation) spoke in favour of deletion.Footnote ⁵³ At one point he interjected,

Eventually the Upper House resolved to postpone further consideration of the proposal and to refer the matter back to the Steering Committee. The Lower House then resolved, with little debate, to defer consideration of the proposal to delete Clause 5 until stage 3 of the process.Footnote ⁵⁵

The report Canon Law Revision 1959 set out the new canons as they stood in November 1959. They had been re-numbered to make the structure of sections clearer. Draft Canon 35A became Canon B 28 under the title ‘Of the Ministry of Absolution’. (Later in the process, insertion of a new canon resulted in it becoming Canon B 29.) Clauses 1–3 were the original Draft Canon 35A, which both Convocations and the House of Laity had approved at stage 1. Clauses 4–5 (the replacement for Draft Canon 65) had been approved by the Convocations at stage 1 but had not been sent to the House of Laity because of the stand-off over the proposal to delete Clause 5.Footnote ⁵⁶

This stasis continued for several years. In May 1963 (four years after the proposal to delete Clause 5 had been resisted), Archbishop Fisher’s successor Michael Ramsey told the Canterbury Convocation, ‘I have to report that the Steering Committee is not yet ready to proceed with this Canon’.Footnote ⁵⁷

Deletion of Clause 5: October 1966

In the event, it was not until October 1966, more than seven years after the convocations had failed to agree to delete Clause 5 from the draft canon, that the Steering Committees raised the matter again. The reason that they advanced for doing so seems rather flimsy:

Moving the deletion of Clause 5 (now called ‘paragraph 5ʹ) at ‘stage 2ʹ, in a rare joint synod of the two convocations on 10 October 1966, the Bishop of Chester, Gerald Ellison, stressed that the problem with it was an academic one:

Canon Kemp seconded the resolution. Three priests spoke against, but Bishop Mortimer of Exeter now spoke in favour. The resolution to delete paragraph 5 was carried in all four houses. The Joint Synod then referred Canon B 28 (as it then still was) to the House of Laity for comment.Footnote ⁶⁰

Canon B 29: 1968–1969

In May 1968 the Steering Committees proposed (at stage 3) that in paragraph 1 of what had in the meantime become Canon B 29 ‘word or deed’ should be replaced by ‘act or omission’. This change, which had been requested by the House of Laity, was agreed by the Convocations.Footnote ⁶¹

In October 1968 the Convocations approved the Petition to the Crown for licence to promulge those new canons (including those in section B) that had not already been promulged.Footnote ⁶² These were set out in the first schedule to the petition, together with a further canon, which was set out in the second schedule. The canon in the second schedule was a ‘Canon repealing the Code of 1603 and re-naming a section of the Revised Code’. Paragraph 1 of this canon began thus: ‘1. The following Canons are hereby repealed:– (a) all Canons of the Code of 1603 so far as unrepealed, except the proviso to Canon 113ʹ. The new canons, including the canon in the second schedule, received the Royal Licence and Assent and were duly promulged in May 1969.Footnote ⁶³ Thus the proviso to Canon 113 was left unrepealed with the agreement of the Crown. It would have been possible for the Crown to refuse the Royal Licence and Assent for the canon repealing the Code of 1603 unless it also repealed the proviso, but that would probably still have provoked a clash between Church and state. The Church compromised by not embodying the seal in a new canon, but the state also compromised in permitting the proviso that reflected the seal to be left unrepealed.

Concluding reflections

This article has described how a modern canon addressing the ministry of absolution was formulated and revised, and explained how it came about that the 1603 canonical text that reflects the seal of confession was left unrepealed. In conclusion, some reflections on this process of deliberation, spanning almost 20 years, will be offered.

Successive attempts to impose canonical limitations on which priests could hear confessions and where they could do so ran into the sand. A lengthy list seemed too detailed for inclusion in a canon, and any provisions (especially more succinct provisions) were likely to exclude some priests whose exclusion would be controversial. In particular, the proposal that priests should normally be excluded from hearing confessions in their first two years in priest’s orders was contested. Moreover, any attempt to limit the ministry of absolution to some priests while excluding others conflicted with the Prayer Book’s apparent assumption that all priests were empowered to exercise that ministry in any circumstances.

At no point in the process did anyone suggest that the right of incumbents to hear confessions could be limited by canon. The large proportion of the clergy who were already incumbents could therefore not be required to undergo training in the ministry of absolution as a pre-condition for being permitted to (continue to) exercise that ministry.

On the other hand, there was no resistance whatsoever to the embodiment in a canon entitled ‘Of the Ministry of Absolution’ of quotations from the 1662 services of Holy Communion and Visitation of the Sick referring to private absolution by a priest (as distinct from absolution pronounced in public worship in response to general confession). This was accepted on all sides as forming part of the Church of England’s doctrine, even though variations in the exercise of a private ministry of absolution were recognised.

The 1947 proposal to embody the seal in a new canon that was couched in stronger terms than the proviso to Canon 113 (because it sought to re-enact the medieval canon law rather than simply to avoid conflict with it) was discussed only very briefly and in very general terms by the Canterbury Upper House and the York Convocation, and was never debated by the Canterbury Lower House at all. It was replaced at the outset of the process, in May 1951, by a draft proposed by the Evangelical Bishop of Rochester, Christopher Chavasse, that largely embodied the wording of the proviso. While this reflected hesitance about going beyond the terms of the existing post-Reformation canon law, it also pointed to universal acceptance of the principle that it enshrined.

There was some discussion of the extent to which the pastoral conversations of evangelical clergy were covered by the principle expressed in the proviso, but on only one occasion in the 22 years from 1947 to 1969 did any member of either Convocation suggest that there were any circumstances in which it would be acceptable for a priest to reveal what had been said to him in formal confession. The Archdeacon of Aston, who did so in April 1959, was a lone voice in the Canterbury Convocation, and there is no reason to disbelieve Archdeacon Stranks’s assertion in the York Convocation on the same day that ‘[t]here is not a soul in this House, I am sure, who does not believe entirely in the secrecy of the confessional’. Debate was mostly about the advisability and practicality of embodying the seal in a new canon, and then about the potential negative consequences of withdrawing the draft text that had been intended to embody it – which, it should be remembered, had originally been proposed by a leading evangelical bishop. Overwhelmingly, the seal itself was uncontroversial.

The general assumption (by members of the Convocations and, as reported to the Convocation, by parliamentarians, by judges, and by government and ecclesiastical lawyers) was that a judge would never seek to compel a priest to give evidence about what had been said to him in confession.Footnote ⁶⁴ The discussion about whether the doctrine of the seal could or should be embodied in canon law was therefore seen on all sides as an academic one about the right of the Church to assert Christian doctrine in its canon law where this conflicted with what was asserted to be the theoretical position in secular law: the outcome of that discussion was not seen as likely to have practical consequences.

That being said, Archbishop Fisher (in 1959) and Bishop Gerald Ellison (in 1966) both stated in terms in the Convocation of Canterbury that if a judge were to seek to compel a priest to reveal what he had heard in confession, he should refuse to do so. In this, they reflected the general view of speakers in the Convocation debates, also expressed in voting during the canonical revision process, that the Church’s overriding duty was to uphold Christian doctrine even where it conflicted with secular law. It was such thinking that had prompted the bishops to respond to Parliament’s rejection of the 1928 Prayer Book by publishing the book in an edition intended for use in worship (despite a note stating that it was not ‘authorised for use in churches’) and had prompted the Convocations to resolve, in response to the Matrimonial Causes Act 1937, that the marriage service should not be used where a former partner was still alive.Footnote ⁶⁵ As Robin Ward has recently pointed out, the intellectual basis for the belief that canonical precepts (providing they are just and rational, and are properly promulged) bind the consciences of Christians, lay as well as ordained, was set out in theological and ecclesiological terms by the Anglican canonist E G Wood in his book The Regal Power of the Church (1888). The Canon Law Commission had included it in the bibliography of its 1947 report, and Eric Kemp caused it to be re-published in 1948, with a view to the process of canonical revision that was about to begin, as ‘probably the best extant introduction in English to the principles of the Canon Law’.Footnote ⁶⁶

Ultimately, in 1968–1969 Church and state each accepted a compromise whereby the Crown permitted the Church to retain the existing canonical provision in relation to the seal but the Church did not seek to embody the seal in a new canon. Had either the 1947 Draft Canon LXVI (which reflected the full terms of the medieval canons) or the proposed Clause 5 of what became Canon B 29 (which reflected the more limited wording of the 1603 proviso) been enacted, it might have been argued that the modern canon had effectively superseded the medieval canons that embodied the seal. Instead, the proviso to Canon 113 was left unrepealed rather than being enacted afresh. The consequence must be that it continues to fulfil its original function – not supplanting the medieval canon law embodying the seal, which therefore continues in force, but pointing to it (enacted to ensure that a new canon did not conflict with it; left in place as a testimony to it).

Although the Convocations’ inability to enact a modern canon embodying the seal of confession was disappointing to many at the time, the outcome of the abortive legislative process was in fact to strengthen the seal. Previously merely a canonical provision, it is now the subject of an Act of Convocation, passed in 1959 without dissent, which declares it, as expressed in the terms of the proviso to Canon 113, to be ‘an essential principle of Church doctrine’.