Although the requirement for a cleric to take an oath of canonical obedience did not appear in the Constitutions and Canons Ecclesiastical 1604, the provisions of Canon 14 in the present Canons of the Church of England are by no means new. Indeed, as Canon C 1, paragraph 3, underlines, such a requirement is of very ancient origin:
According to the ancient law and usage of this Church and Realm of England, the priests and deacons who have received authority to minister in any diocese owe canonical obedience in all things lawful and honest to the bishop of the same, and the bishop of each diocese owes due allegianceFootnote 1 to the archbishop of the province as his metropolitan.
These ‘ancient laws’ were referred to in the marginal note to The Canon Law of the Church of England Being the Report of the Archbishops' Commission on Canon Law Footnote 2 but there are other ancient references in addition.Footnote 3 Certainly there is little doubt that the oath in some form or other pre-dates the Reformation.Footnote 4 Bray concludes:
The form of oath used today is undoubtedly very ancient, although it does not seem to appear in print before 1713, when the feudal order which lies behind it was already dead. It is a form which has managed to survive all the changes and upheavals of the centuries, presumably because successive generations of churchmen have considered it important enough to be retained in substantially its original form.Footnote 5
Bray also points out that originally the oath was connected to church administration.Footnote 6 Certainly, although the requirement of a promise to obey a cleric's ‘Ordinary, and other chief Ministers of the Church and them to whom the Charge and Government over you is committed’ is mentioned by Gibson in relation to the ordination of both priestsFootnote 7 and deacons,Footnote 8 the actual form of the oath is set out in relation to institutions to benefices.Footnote 9 Nonetheless the oath is nowadays required at least of every cleric who is to serve in England.Footnote 10 Canon C 14, paragraph 1, states:
Every person whose election to any bishopric is to be confirmed, or who is to be consecrated bishop or translated to any bishopric or suffragan bishopric, or who is to be licensed as an assistant bishop, shall first take the oath of due obedience to the archbishop and to the metropolitical Church of the province wherein he is to exercise the episcopal office in the form and manner prescribed in and by the Ordinal.Footnote 11
Similarly, Canon 14, paragraph 3, states:
Every person who is to be ordained priest or deacon shall first take the OathFootnote 12 of Canonical Obedience to the bishop of the diocese by whom he is to be ordainedFootnote 13 in the presence of the said bishop or his commissary, and in the form following:
I, A B, do swear by Almighty God that I will pay true and canonical obedience to the Lord Bishop of C and his successors in all things lawful and honest: So help me God.
Finally, Canon C 14, paragraph 5, states:
Every bishop, priest or deacon who is to be translated, instituted, installed, licensed or admitted to any office in the Church of England or otherwise to serve in any place shall reaffirm the Oath of Canonical Obedience or his solemn affirmation taken at his ordination or consecration to the archbishop of the province or the bishop of the diocese (as the case may be) by whom he is to be instituted, installed, licensed or admitted in the presence of the said archbishop or bishop or his commissary in the form set out in this Canon.Footnote 14
This oath of canonical obedience, therefore, based as it is on the provision of the ancient law and usage of the Church, is not dependent upon the form of the oath being set out in the present Canons but on the basic provisions of the canon law, hence the description ‘oath of canonical obedience’ or ‘oath of due obedience’.Footnote 15 However, it is certainly possible that Gibson only used the description ‘canonical’ obedience in contradistinction to the oath of obedience at that time taken by all clerics to the monarch.
TO WHOM IS OBEDIENCE OWED?
In the first instance Canon C 14, paragraph 1, makes it clear that obedience is owed by a bishop to the archbishop and to the metropolitical Church of the province and their successors ‘where he is to exercise episcopal office’.Footnote 16 It also makes it clear that if the bishop is translated to a diocese in another province, the oath is taken to the archbishop and metropolitical Church of the new province.Footnote 17 Perhaps a little confusedly, a suffragan therefore owes obedience to the archbishop and not to his diocesan bishop, although his authority flows from the latter.
Similarly, Canon C 14, paragraph 3, makes it clear that the oath is made by any person to be ordained priest or deacon ‘to the bishop of the diocese by whom he is to be ordained’. It follows that obedience is not owed to a suffragan and a suffragan has no authority to alter the form of oath set out in Canon C 14, paragraph 3, in an attempt to create such a duty.Footnote 18
BY WHOM IS THE OATH TO BE TAKEN?
Canon C 14, paragraph 5, states:
Every bishop, priest or deacon who is translated, instituted, installed, licensed or admitted to any office in the Church of England or otherwise to serve in any place shall reaffirm the Oath of Canonical Obedience or his solemn affirmation taken at his ordination or consecration to the archbishop of the province or the bishop of the diocese (as the case may be) by whom he is to be instituted, installed, licensed or admitted in the presence of the archbishop or bishop or his commissary in the form set out in this Canon.
If the priest or deacon is to continue to serve in the same diocese, continuity to the bishop's successors is ensured. However, the Canon does not provide for the eventuality of the cleric moving to another diocese; nonetheless, common sense demands that on moving dioceses the oath made to the bishop of the previous diocese is automatically abrogated. Moreover, this seems to be the implication of Canon C 1, paragraph 4, which reads:
Where any bishop, priest or deacon ceases to hold office in the Church of England or otherwise ceases to serve in any place he continues to owe canonical obedience in all things lawful and honest to the archbishop of the province or the bishop of the diocese (as the case may be) in which he resides for the time being.
Indeed, the cleric may, of course, decide to move dioceses, as the words ‘in which he resides for the time being’ recognise. In any event, the use of the words ‘continues to owe canonical obedience’ seems to imply that the oath is not personal to the particular bishop but reflects the basic canon law which demands obedience only to the bishop where the cleric actually lives. (This argument, of course, depends upon the presupposition that the Canon does recognise the possibility of a move to another diocese. Certainly such a move would normally be expected of a bishop on the termination of his post.)
An oath of due obedience is also to be taken by a deaconessFootnote 19 and a reader on their admission.Footnote 20 On being licensed the reader takes a similar oath as that taken on admission, although the oath now includes the words ‘and [to] the minister in whose cure I may serve’.Footnote 21 These canons are new; prior to 1963 such persons had no separate legal status,Footnote 22 although the same principles of interpretation will apply regarding the meaning of the oath as to the oath taken by a cleric. It is, however, arguable that the actual scope of the oath may be somewhat different, as all lay persons were previously subject to canon law, although necessarily in different ways and situations.Footnote 23
IN WHAT CIRCUMSTANCES DOES A DUTY TO OBEY ARISE?
It is easy to overlook the facts that the original form of the oath of canonical obedience was in Latin and that the oath, whether in English or Latin, is no more than an explicit statement of a duty imposed by the general canon law.Footnote 24 This is important as the oath is not free-standing and in its English form is no more than a translation of its Latin form, ‘Ego AB juro, quod praestabo veram & Canonicam Obedientiam Episcopo … ejus.’ The Latin may, therefore, on occasions help to throw some light on the meaning of the English words ‘in all things lawful and honest’, words that have raised queries among some commentators.Footnote 25 In this regard it should be noted that the Latin word ‘licitus’ means what is ‘permitted, allowed, allowable, lawful’ or ‘legitimate, licit, lawful’.Footnote 26 The Latin word ‘honestus’ means ‘belonging to or deserving of honour, honourable, creditable, worthy, virtuous, decent, proper, becoming’ or ‘honest, decent, noble’.Footnote 27 Nonetheless, it is unclear merely from the wording whether it is the bishop's order that must be lawful and honest or the things that are ordered to be done that must otherwise be lawful, although it is inconceivable that the law would insist on a cleric carrying out a direction to do something unlawful.
For this it is necessary to turn to the general canon law. Unfortunately there are few reported authorities.Footnote 28 The earliest case on canonical obedience referred to since the Reformation is to be found in Phillimore's The Ecclesiastical Law of the Church of England, namely, Huntley's Case (1626):
Mr Huntley, rector of Stourmouth, was required by Dr Kingsley, archdeacon of Canterbury, to preach a visitation sermon, which he refused: and being cited before the high commissioners, it was urged that he was bound to the performance of that office in pursuance of the archdeacon's mandate, by virtue of his oath of canonical obedience. He answered that he was not a licensed preacher according to the Canons of 1603, and especially that he was not bound thereunto by his said oath, which implied only an obedience to the canon law, as it was in force in this realm; and that there is no canon, foreign or domestic, which required him to do this; but on the contrary, that the ancient canon law injoined the visitor himself to preach at his own visitation. But the court admonished him to comply; and on his refusal fined him 500l. and imprisoned him till he should pay the same, and also make submission; and afterwards degraded and deprived him.Footnote 29
It should be noted that it does not seem to have been argued by the Reverend Mr Huntley that the archdeacon's order was not covered by his oath at all; either the form of oath was wider than the present form of oath or the archdeacon's mandate was treated as if from the diocesan bishop himself. Be that as it may, Phillimore comments that this case is ‘but one instance, among others, in which that court while it subsisted carried matters with a pretty high hand’.Footnote 30 It is particularly worth noting not only that the case confirms that the duty of obedience survived the Reformation but also that Mr Huntley argued that his oath ‘implied only an obedience to canon law’.
The next reported case is that of Barnes v Shore, where an Anglican clergyman was proceeded against for officiating in an unconsecrated chapel;Footnote 31 his licence to do so had previously been revoked by the bishop and he had been strictly enjoined to abstain from continuing to officiate in the building. Once his licence had been revoked, Mr Shore purported to claim the benefits of the Toleration Acts. In the result Sir Herbert Jenner Fust stated, perhaps unsurprisingly: ‘To read in this allegationFootnote 32 of Mr Shore's “conscientious grounds” for seceding from the Established Church, seems to me palpably absurd, when it appears his conscience remained quite undisturbed till after the bishop revoked his licence.'Footnote 33 Fust continued:
Mr Shore admitted he received the order of priest from the Church of England, and he even now pleads he is in ‘holy orders’. From what source can these orders be, but from that whence he derived them? Here, again, it was to be proved that a clergyman can divest himself at pleasure from his orders; but I heard nothing to establish that position. The spirit of the canons is certainly at variance with such a position, as well as common sense. I should like to be informed on what principle it can be contended that one, who has been in the Church of England, and promised canonical obedience, is not amenable to discipline. Is it meant to be said that such a one being guilty of immorality can exempt himself from the censures of the Church, by saying he has taken certain oaths, and qualified himself as a dissenting teacher? Were that so, there would be an end of all Church discipline; the notion is too preposterous.Footnote 34
The same matter then came before the civil courts under the name of Shore v Barnes where it was argued that ‘it would be most unreasonable that a person once ordained should be enabled at pleasure to release himself from ecclesiastical obedience by simply declaring that he dissents from the discipline (not doctrine) of the Church of England.’Footnote 35 Again perhaps unsurprisingly, in his judgment Lord Denman concluded: ‘when [Mr Shore] vowed and promised canonical obedience to that Church; from … that vow and promise he can be released only by the same authority which … enjoined and received [them]’.Footnote 36 Once more, it seems by implication that the obedience promised was to the general ecclesiastical law.
The main authority on canonical authority is Long v Bishop of Cape Town, a decision of the Judicial Committee of the Privy Council on appeal from the Supreme Court of the Cape of Good Hope.Footnote 37 However, in spite of this provenance, as Lord Kingsdown said on delivering the opinion of the court, the case was decided on the basis that:
We think that the acts of Mr Long must be construed with reference to the position in which he stood as a Clergyman of the Church of England, towards a lawfully appointed bishop of that Church, and to the authority known to belong to that office in England; and, we are of the opinion, that by taking the oath of canonical obedience to his Lordship, and accepting from him a licence to officiate, and the cure of souls of the parish of Mowbray, subject to revocation for just cause and by accepting the appointment to the living of Mowbray, under a deed which expressly contemplated as one means of avoidance the removal of the incumbent for any lawful cause, Mr Long did voluntarily submit himself to the authority of the Bishop to deprive him of his benefice for any lawful cause, that is, for such cause as (having regard to any differences which may arise from the circumstances of the Colony) would authorise the deprivation of a Clergyman by his Bishop in England. We adopt the language of Mr Justice Watermeyer, that ‘for the purpose of the contract between the Plaintiff and the Defendant, we are to take them as having contracted that the laws of the Church of England shall, though only as far as applicable here, govern both’.Footnote 38
On that basis the Privy Council decided that
The oath of canonical obedience does not mean that the Clergyman will obey all the commands of the Bishop against which there is no law, but that he will obey all such commands as the Bishop by law is authorised to impose ….Footnote 39
Indeed, both Phillimore and Cripps find it unnecessary to cite any other authority, or to make any further comment, on the meaning of the oath other than to cite this passage.Footnote 40
Coincidentally, the case of Tuckniss v Alexander was decided in the same year as Long v Bishop of Cape Town and was concerned with a common marriage licence granted by the diocesan bishop.Footnote 41 In the course of giving judgment Kindersley VC stated:
it appears to me, that if a licence is produced to a clergyman from his ordinary, from his diocesan, directing him, or in terms authorising him, to marry two persons in his church or chapel, his canonical obedience requires him, as well as the rights of the parties require him, to perform that marriage according to that licence …. His function is to act according to the licence of his diocesan.Footnote 42
Five years later, in Rugg v Bishop of Winchester, there were two chapelries with a church within each chapelry;Footnote 43 these were united in one benefice by an Order in Council. Thereafter the incumbent of the benefice on some Sundays omitted to perform any service in one church, having closed it, while having two services in the other. The diocesan bishop thereupon gave the incumbent notice that he would require him to perform alternative morning and evening prayer in each church but the incumbent disobeyed. In giving the opinion of the Judicial Committee of the Privy Council Lord Chelmsford said:
If, then, the Appellant has neglected or refused to perform the spiritual duty which was imposed on him by his induction into the Benefice, has he not committed an offence against the Ecclesiastical Law? This in itself might render him liable to be proceeded against under the Church Discipline Act. But, beyond his neglect of duty, he has exposed himself to such a proceeding by his contumacious refusal to obey the lawful order of his Bishop.Footnote 44
In other words, the disobedience to a lawful order of the bishop was a separate ecclesiastical offence.Footnote 45 In Combe v De la Bere an incumbent was proceeded against inter alia for what the judge described as ‘obstinate disobedience to his ordinary’.Footnote 46 In his judgment Lord Penzance said:
Protected … from vexatious proceedings from without, the clergy are bound to yield obedience to the authorities set over them within the Church; it cannot, therefore, be a matter of surprise that the mere fact of being ‘incorrigibly disobedient’ to the ordinary should find a prominent place in old ecclesiastical books as a good cause for deprivation.
Lord Penzance then went on ‘not without regret’ to refer to what he regarded as ‘another and still stronger reason for placing disobedience to the ordinary, by an ordained priest, among the highest of ecclesiastical offences’, namely, the priest's ordination promise of obedience.Footnote 47
In Bishop of St Albans v Fillingham, contrary to the direction of his bishop an incumbent priest purported to ordain another person as a priest.Footnote 48 It was held that for an incumbent, not himself being a bishop, to purport to carry out an ordination was an ecclesiastical offence. At the end of his judgment the Dean of the Arches, Sir Lewis Dibdin, added:
His offence is aggravated by his disobedience to the monition of the Bishop of St Albans, who required no more of Mr Fillingham than that he should obey the law as I have stated it. Contumacy is an ecclesiastical offence in itself …. But it is also a circumstance, in the transaction of the pretended ordination, which materially adds to Mr Fillingham's responsibility for the greater offence. I treat the one as merged in the other.Footnote 49
In none of the cases following that of Long v Bishop of Cape Town was it necessary for the latter authority to be referred to but it is clear than in each case the disobedience was against commands that the bishop by law was authorised to impose. None of them, therefore, in any way derogate from that decision. More particularly, the case of Rugg v Bishop of Winchester makes it clear that it is the lawfulness of the bishop's command that is relevant and not the lawfulness of the cleric's actions in response to that command.
However, the case of Long v Bishop of Cape Town was referred to in Calvert v Gardiner, an action in the civil courts against the Bishop of Exeter in relation to an alleged nuisance caused by the ringing of church bells in one of his parishes.Footnote 50 In dismissing the case against the bishop Mr Justice Burton said:
(1) The oath [of canonical obedience] is one of true and canonical obedience, ie not just obedience, but obedience in according to the Canons.
(2) If, as I conclude, the bishop has power to discipline only in that limited way, then he has no power to give orders, particularly orders in relation to matters such as the bells, which are by Canon vested with the vicar, and he can have no duty to exercise a power that he does not have, and by failing to exercise a power which he does not have, he cannot have authorised a nuisance.Footnote 51
Two matters are of particular note: first, this statement of the law in so far as it considers matters wider than the ringing of bells is not a mere obiter dictum because the judge's decision as to the bells is specifically based on the wider proposition; second, it was the bishop who was relying on the restricted scope of the duty of canonical obedience.Footnote 52
It is therefore by reference to the ecclesiastical law (including the Canons) that it must be decided whether a bishop has the authority to direct obedience in relation to any particular matter. One example, as has already been seen, is in relation to a common marriage licence. Another would be in relation to a direction given by the diocesan bishop under Canon B 5, paragraph 4.Footnote 53 Nonetheless, the question necessarily arises whether the bishop may direct compliance with national and diocesan regulations, policies or guidelines.Footnote 54 In this regard, care must be taken to consider the legal force of any such provision. For example, directions given under the Ecclesiastical Offices (Terms of Service) Regulations 2009Footnote 55 are enacted in the form of statutory instruments.Footnote 56 In contrast, an act of convocation only has moral and not legal force,Footnote 57 although in some cases it may have legal force as delegated authority.Footnote 58 It is likely that an act of the General Synod similarly has no more than moral force,Footnote 59 especially as it may in any event pass binding legislation in the form of Measures and Canons. Equally, diocesan synods have no power to make binding regulations.Footnote 60 Whether regulations or directions made by a diocesan bishop about any matter – for example, as to the reservation of the holy sacrament and exorcism – are lawfully enforceable will depend upon the law underlying those matters.Footnote 61
However the matter does not end there. The Upper House of the Convocation of each province is made up solely of bishopsFootnote 62 and it would seem in principle that one House of Convocation can in the ordinary course of events have no greater authority, if as much, as the whole Convocation meeting together. Equally, it is difficult to see how the House of Bishops of the General Synod, which is formed by the joining together of both Upper Houses, can have as much authority as the Synod as a whole. Nonetheless, the law as to national and diocesan regulations is fluid and complicated. This is made particularly clear by the disciplinary case of Re Robinson where the disciplinary tribunal was concerned with the meaning of the words ‘neglect … in the performance of the duties of [the cleric's] office’ in section 8 of the Clergy Discipline Measure 2003.Footnote 63 Distinguishing the case of Bland v Archdeacon of Cheltenham,Footnote 64 the tribunal held that the words ‘neglect … in the performance of the duties of [the cleric's] office’ are wider than the words ‘neglect of duty’ in section 8 of the Ecclesiastical Jurisdiction Measure 1963. It then concluded that an incumbent is under a duty to ascertain, pay regard to and generally act in accordance with the House of Bishops' and diocesan guidelines on child safeguarding,Footnote 65 ‘notwithstanding that there is no prescribed legal mechanism for the transition of such child protection policies into legal duties’.Footnote 66 Nevertheless, the tribunal said:
we do not think that every policy pronouncement of the House of Bishops or its refinement at diocesan level by those responsible for formulating policy at diocesan level will automatically give rise to ‘duties of office’. The matter will be fact sensitive, depending upon both the topic covered by the policy, and the language used in the policy.Footnote 67
In these circumstances it follows that, in deciding whether a diocesan bishop has the right in law to demand obedience in regard to any particular national or diocesan policy or guideline, the terms of that policy or guideline must be very carefully considered, as well as the position that the relevant cleric holds and therefore the effect of that policy or guidelines on that cleric's duties.Footnote 68 For example, an incumbent may have particular duties that a curate does not. However, it must always be borne in mind that consideration must equally be given to the fact that the bishop is not entitled to give orders to an incumbent with regard to matters which are vested in the incumbent alone,Footnote 69 even though the bishop is the chief pastor of all persons who are within his diocese.Footnote 70
THE VIEWS OF LEGAL WRITERSFootnote 71
It has already been noted that Phillimore and Cripps accept the authority of Long v Bishop of Cape Town and this without criticism or further comment. In addition the duty to take the oath is mentioned by Mark Hill, by Timothy Briden and Brian Hanson, by Lynne Leeder and by Will Adam without further comment.Footnote 72 David Parrott deals with the matter in more detail. He sets out the terms of the oathFootnote 73 and then states
Clergy of the Church of England owe a duty of canonical obedience to the bishop to the bishop in all things lawful and honest. The meaning of these oaths [sic] is quite clear on the surface, although there is much debate as to the finer meaning of the words ‘lawful’ and ‘honest’. It has been held that the duty only extends to obedience of an episcopal direction which is expressly authorised by law.Footnote 74 This is not a very broad interpretation of the spirit of the oaths, but it represents the legal position. The Privy Council said, in 1863: ‘the oath of canonical obedience does not mean that every clergyman will obey all the commands of the bishop against which there is no law, but that he will obey all such commands as the bishop is authorised by law to impose.Footnote 75
Sparrow Simpson cites with approval a quotation from Bingham's The French Churches’ Apology for the Church of England:Footnote 76
Now we have no controversy with Dissenters, about the meaning of this Promise or Oath [of canonical obedience], it is agreed on both sides that Canonical Obedience, in effect, is no more than Obedience to the Orders and Canons of the Church, and does not subject men to any unlimited power, or require by virtue of the Canons: so that if the Canons be lawful, one would think the Oath of Canonical Obedience should be lawful also.Footnote 77
In addition, when noting that it was the Oxford Movement which was responsible for bringing the subject of canonical obedience into Anglican discussion,Footnote 78 Sparrow Simpson refers to a quotation from a charge delivered by the Archbishop of Canterbury in 1899, ‘Canonical Obedience is the obedience which is to be rendered to the Bishop when he gives a command which he has a right to give.’Footnote 79 He then concludes:
Canonical Obedience has been constantly understood to represent obedience in accordance with the Canons of the Church. But the obligation is complicated by the difficulty of determining beyond dispute what the Canon Law of the English Church precisely is.Footnote 80
For this reason Sparrow Simpson advocated the revision of the canon law. As he said:
to impose an oath of Canonical Obedience, if that means obedience to the Canons, without defining what the Canons are to which obedience is required, is to insure perplexity. So long as any uncertainty remains about the scope and meaning of the Church regulations, the value of the Oath of Canonical Obedience is largely neutralised. It is true that Obedience of the inferior to the superior is an obligation in the various ranks of the Church independently of any oath about it. But the contents of the ecclesiastical obligation require to be defined.Footnote 81
Clearly a cleric is put in a very difficult position when he or she does not know the law that applies to him or her upon ordination and there would seem therefore to be an obligation upon the Church to educate the clergy in the ecclesiastical law. Although ignorance of the law is no excuse, a diocesan bishop may, if he considers the performance of an office-holder affords grounds for concern, instigate an inquiry into the capability of that office-holder to perform the duties of his or her office.Footnote 82 In addition there is a duty on every diocesan to ensure that an office-holder holding a training post has suitable training,Footnote 83 and also to use all reasonable endeavours to ensure that every office-holder in the diocese is afforded opportunities to participate in such education or training as is appropriate to promote that office-holder's ministerial development.Footnote 84
Doe, in The Legal Framework of the Church of England, raises as his first ‘critical observation’ that Canons C 14 and C 1, paragraph 3, are ‘legally superfluous’ as they amount ‘to a promise to fulfil a pre-existing obligation to obey episcopal directions’.Footnote 85 He therefore describes the oath as having ‘merely symbolic significance’; nonetheless, he recognises the argument that ‘the general duty is made specific and personal by the oath’.Footnote 86 However, its repetition may also be seen as emphasising the oath's importance, as does its saving by section 12 of the Clerical Subscription Act 1865 and its inclusion in the modern Canon C 14; moreover, such a personalisation may be seen as of particular importance when there is no general education of the clergy in ecclesiastical law.
His second criticism is that there is no definition of the words ‘inferior clergy’, but these words in Canon C 1, paragraph 3, have been replaced since November 2005 by the words ‘priests and deacons’.Footnote 87 Third, Doe complains that the words ‘who have received authority to minister in any diocese’ in that paragraph are ambiguous. As to this he suggests two alternative interpretations: the narrow interpretation being obedience only to the bishop who authorises the cleric to minister in his diocese, the wider interpretation being that obedience is owed to the bishop of another diocese when visiting that diocese. However, no oath is necessary in the latter case as, if law applies, it must in any event be obeyed. Indeed, as Doe recognises, the expression criticised may be unnecessary because of the terms of Canon 14 itself. As to orders of suffragans, their authority only derives from the diocesan bishop. Nonetheless, as has already been noticed, a difficulty arises in relation to letters dimissory and it would clearly be preferable if this were to be clarified. Doe also points out that, although not caught by the terms of Canon 14, those with permissions to officiate have ‘received authority to minister’ in a diocese and therefore owe canonical obedience to the diocesan bishop.Footnote 88 Further, he points out that no oath is required to the archbishop other than by a bishop, but there seems little application for such an addition in practice.Footnote 89
Doe's fourth criticism relates to the meaning of the word ‘lawful’. This has more substance, as he points out (and has already been considered above) that it is unclear precisely what legal authority some directions, policies and guidelines may have. He also suggests that
In so far as episcopal directions, in the form of administrative norms, executive, judicial, or quasi-judicial orders, are expressly or impliedly authorised by law and are not ultra vires, disobedience may be unlawful.Footnote 90 Problems arise when the law is silent on either the bishop's direction or the minister's conduct. It is arguable that when ministerial conduct is not prohibited by law (expressly or impliedly), but is conduct which nevertheless the bishop forbids, then the minister cannot be prohibited from that conduct by his bishop. There seems to be no authority on this problem. Equally, when the episcopal direction is not prohibited by law (when there is no law which says that a bishop cannot direct) it is arguable that the bishop's direction will be lawful. The scant authority that exists would suggest otherwise, however: in Long v Bishop of Cape Town (1863), the Privy Council decided that ‘the oath of canonical obedience does not mean that every clergyman will obey all the commands of the Bishop against which there is no law, but that he will obey all such commands as the Bishop by law is authorised to impose’. This suggests that when there is no law forbidding the episcopal direction there is no ministerial obligation to obey: clerics are obliged to obey only those episcopal directions authorised by and not contrary to law. Needless to say, it is unclear when an episcopal order which is lawful but not honest might be disobeyed.Footnote 91
Nonetheless, merely because there is ‘scant authority’ and Long v Bishop of Cape Town was decided in 1863 does not mean that it is not good and binding authority. Moreover, the example of ‘when ministerial conduct is not prohibited’ is, indeed, covered by that authority when it expressly states that the minister ‘will obey all such commands as the Bishop by law is authorised to impose’. As the opinion of the Privy Council is binding in all matters (other than on appeal in those matters relating to doctrine, ritual or ceremonial), its decision is as a result far more than a mere suggestion: rather, it states the law.Footnote 92 However, Doe's criticism in relation to the word ‘honest’ is well made, although, as has been suggested, the word should be read in the light of the meaning of the word ‘honestus’ in Latin.
Bray, in his monograph The Oath of Canonical Obedience, repeats the criticisms made by Doe but adds the erroneous argument that precedent has no place in the ecclesiastical law. However, he expands Doe's point as to the word ‘honest’:
There is no consensus about the meaning of the word ‘honest’ in the phase ‘all things lawful and honest’. Is it possible for something to be lawful, but not honest? Whose standards are to be used when the question of a thing's ‘honesty’ is being decided? We have already had occasion to note that for some people, swearing on oath violates their conscience and so presumably is not ‘honest’ in their view, but does any individual have the right to impose his standards on others in a case like this? In the end it is hard to see how a viable distinction can be maintained between what is ‘honest’ and what is ‘lawful’, even if we all recognise that such a distinction can and does exist.Footnote 93
These points, too, are well made, although, however difficult, if the question arises it will ultimately be for the relevant court to decide what is or is not honest in any given circumstances. Indeed, in this context it is worthy of note that in Re Petition Against Revd Clifford Williams the Provincial Court of the Church in Wales said:
We would understand ‘lawful’ (in ‘lawful and honest’) to refer to the provisions of the Canon Law, the constitution of the Church in Wales, and such synodical resolutions (ie the Governing Body), as may be in force for the time being; ‘honest’ may be taken to refer to the constraints of natural justice. This is all a very proper defence of the clergy against the dictates of episcopal whim.Footnote 94
This view carries with it the great weight of common sense but it would nevertheless have no more than persuasive authority in an English court, whether civil or ecclesiastical.
