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The Clerical Oath of Allegiance

Published online by Cambridge University Press:  01 September 2015

Rupert Bursell QC
Rupert Bursell QC*
Affiliation:
Chancellor of the Diocese of Durham
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Abstract

The taking of oaths of allegiance to the Crown has a long history pre-dating the Reformation. However, the shifting balance of power in the sixteenth century gave greater political weight to the taking of oaths, and developments in the monarchy were matched by developments in the oaths required of clerics. In the present day all clergy are required to take the Oath of Allegiance prior to ordination and on taking up clerical posts. Other office-holders in the church are also required to do so.

Keywords

oathsroyal supremacyChurch of Englandordination

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Type
Articles
Information
Ecclesiastical Law Journal , Volume 17 , Issue 3 , September 2015 , pp. 295 - 305
Copyright
Copyright © Ecclesiastical Law Society 2015 

St Augustine appreciated that persons were being ordained without knowing what the canon law that applied to them was. He therefore persuaded the Council of Carthage that thenceforth every ordinand should have the canons read to them before ordination. Canon XVIII of the Council reads: ‘It seemed good that before bishops or clerics were ordained the provisions of the canons should be brought to their notice lest they might afterwards repent of having through ignorance acted contrary to law.’Footnote 1

Nonetheless, it seems that in the Church of England many, if not most, ordinands today are ordained with little or no knowledge of the law that will apply to them after ordination.Footnote 2 Many, too, are apparently unaware of the purport of the oaths and the declaration of faith that they must take prior to ordination. Such oaths and declarations are not restricted, however, to the time of ordination nor to the clergy. Apart from the oath of obedience,Footnote 3 these are now the oath of allegiance and the declaration of faith; a declaration against simony is no longer required.Footnote 4

THE HISTORY OF THE OATH OF ALLEGIANCE

The oath of allegiance to the Crown is very ancient and is founded in the common law;Footnote 5 indeed, it was required of every freeman at the age of 12, although the general clergy were exempt as they could not be compelled to attend the leet or tourn where the oaths were administered. However, bishops and abbots were required to pay homage to the king for their temporalities or baronies after their election or appointment, during which an oath of allegiance would be made.Footnote 6 In spite of this, at their consecration (or blessing) bishops and abbots took an all embracing oath to the Pope and the See of Rome:

I, John, bishop or abbot of A, from this hour forward shall be faithful and obedient to St Peter, and to the holy church of Rome, and to my lord the pope and his successors canonically entering. I shall not be of counsel nor consent, that they shall lose either life or member, or shall be taken, or suffer any violence or wrong by any means. Their counsel to me credited by them, their messengers or letters, I shall not willingly discover to any person: The papacy of Rome, the rules of the holy fathers, and the regality of St Peter, I shall help and maintain and defend against all men. The legate of the see apostolic, going and coming, I shall honourably entreat, the rights, honours, privileges, and authorities of the Church of Rome, and of the pope and his successors, I shall cause to be conserved, defended, augmented, and promoted. I shall not be in counsel, treaty, or any act in the which any thing shall be imagined against him or the Church of Rome, their rights, seats, honours, or powers. And if I know any such to be moved or compassed, I shall resist it to my power, and as soon as I can I shall advertise him, or such as may give him knowledge. The rules of the holy fathers, the decrees, ordinances, sentences, dispositions, reservations, provisions, and commandments apostolic, to my power I shall keep, and cause to be kept by others. Heretics, schismatics, and rebels to our holy father and his successors, I shall resist and persecute to my power. I shall come to the synod when I am called, except I be letted by a canonical impediment. The thresholds of the apostles I shall visit yearly personally or by my deputy. I shall not alienate or sell my possessions without the pope's counsel. So God help me and the holy evangelists.Footnote 7

Clearly there were tensions between these conflicting royal and papal jurisdictions and this was recognised as early as the reign of William Rufus (1087–1100) in relation to Archbishop Anselm.Footnote 8 As a result a further oath was also taken to the king which attempted to qualify the allegiance to Rome:

I, John, the bishop of A, utterly renounce and clearly forsake all such clauses, words, sentences, and grants, which I have or shall have hereafter of the pope's holiness, of or for the bishopric of A that in any wise hath been, is, or hereafter may be, hurtful or prejudicial to your highness, your heirs, successors, dignity, privilege, or estate royal …Footnote 9

Indeed, these tensions caused Archbishop Cranmer on his consecration to enter a protestation disclaiming ‘not only all such clauses in the [papal] Oath, as might interfere with his duty to God and the king, but all such, likewise, as might be interpreted restraints upon him from endeavouring a Reformation in the Church’.Footnote 10

When the Reformation occurred, unsurprisingly all persons, whether ecclesiastical or lay, were required to take oaths in support of the king's succession.Footnote 11 However, the new oaths were deemed inadequate and were replaced by An Act for the Establishement of the King's Succession 1543. That oath included the words:

And I shall bear faith, truth and true Allegiance to the King's Majesty, and to his Heirs and Successors … And that I shall accept, repute and take the King's Majesty of the King's Majesties [sic] Reign: and that I shall accept, repute, and take the King's Majesty, his Heirs and Successors (when they or any of them shall enjoy his place) to be the only Supreme Head in Earth, under God, of the Church of England and Ireland, and of all other His Highnesses Dominions …Footnote 12

Thereafter, oaths of allegiance and supremacy often went hand in hand.Footnote 13

Indeed, the royal supremacy was already enshrined in Canon 1 of the Constitutions and Canons Ecclesiastical 1603. This read:

As our duty to the King's most excellent Majesty requireth, we first decree and ordain, That the Archbishop of Canterbury, (from time to time), all Bishops of this province, all Deans, Archdeacons, Parsons, Vicars, and all other Ecclesiastical Persons, shall faithfully keep and observe, and (as much as in them lieth) shall cause to be observed and kept of others, all and singular laws and statutes, made for restoring the Crown of this kingdom the ancient jurisdiction over the State Ecclesiastical, and abolishing all foreign power repugnant to the same. Furthermore, all Ecclesiastical Persons, having cure of souls, and all other Preachers, and Readers of Divinity Lectures, shall, to the uttermost of their wit, knowledge, and learning, purely and sincerely, without any colour or dissimulation, teach, manifest, open, and declare, four times every year at the least, in their sermons and other collations and lectures, that all usurped and foreign power (forasmuch as the same hath no establishment for ground by the law of God) is for the most just causes taken away and abolished; and that therefore no manner of obedience, or subjection, within his Majesty's realms and dominions, is due unto any such foreign power, but that the King's power, within his realms of England, Scotland, and Ireland, and all other his dominions and countries, is the highest power under God; to whom all men, as well inhabitants, as born within the same, do by God's laws owe most loyalty and obedience, afore and above all other powers and potentates in the earth.Footnote 14

Furthermore, the (original) Canon 36 required all who were to be ordained to subscribe to the royal supremacy:

That the King's Majesty, under God, is the only Supream Governour [sic] of this Realm, and of all other His Highness's Dominions and Countries, as well in all Spiritual or Ecclesiastical Things or Causes, as Temporal, and that no Foreign Prince, Person, Prelate, State or Potentate, hath or ought to have any Jurisdiction, Power, Superiority, Preheminence [sic] or Authority Ecclesiastical or Spiritual, within His Majesty's said Realms, Dominions or Countries.Footnote 15

In 1689 the form of the two oaths was altered:

And that the oaths hereafter mentioned shall be taken by all persons of whom the oaths of allegiance and supremacy might be required by law, instead of them; and that the said oaths of allegiance and supremacy be abrogated.

‘I, AB do sincerely promise and swear, that I will faithfully, and bear true allegiance, to their majesties King William and Queen Mary. So help me God.’

‘I, AB do swear, that I do from my heart abhor, detest, and abjure, as impious and heretical, that damnable doctrine and position, that princes excommunicate, or deprived by the Pope, or any authority of the see of Rome, may be deposed or murdered by their subjects, or any other whatsoever. And I do declare, that no foreign prince, person, prelate, state or potentate hath or ought to have, any jurisdiction, power, superiority, pre-eminence, or authority, ecclesiastical or spiritual within the realm. So help me God.’Footnote 16

The 1689 Act created difficulties for those who nevertheless felt bound by their original oaths; nine bishops and some four hundred other clergy were deprived of their posts for refusing to swear the oath of allegiance and supremacy to the new sovereigns.Footnote 17 Canon 36, of course, remained in force and declared the supremacy of the monarchs as governors of the Church.Footnote 18 The monarch's supremacy may also be seen to have been the basis for the legality of what became known as ‘special worship’, a term which ‘embraces the full range of occasions for which the civil authorities … [o]rdered departure from normal religious observance’. This ranged from the publication of ‘special services’ to the addition of a single prayer to the normal liturgy.Footnote 19 However, these directions as to special worship caused some clergy crises of conscience because of the Act of Uniformity.Footnote 20

The Clerical Subscription Act 1865 only required an oath of allegiance: ‘I … do swear that I will be faithful and bear true allegiance to her Majesty Queen Victoria, her heirs and successors according to law. So help me God.’Footnote 21 At the same time the original Canon 36 was replaced with a different form of words which omitted any reference to allegiance to the Crown. Nonetheless, the provisions of Canon 1 in relation to the royal supremacy remained unchanged.

In 1939 the Archbishops' Commission on Canon Law was appointed at the request of the Lower House of the Convocation of Canterbury by the Archbishop of Canterbury in conjunction with the Archbishop of York.Footnote 22 When the revision of the Canons finally came to fruition in 1964 and 1969, Canon A 7 (‘Of the royal supremacy’) and Canon C 13 (‘Of the oath of allegiance’) were laid out in virtually identical terms to those proposed by the Commission. Today Canon A 7 reads: ‘We acknowledge that the Queen's excellent Majesty, acting according to the laws of the realm, is the highest power under God in this kingdom, and has supreme authority over all persons in all causes, as well ecclesiastical as civil.’ Footnote 23 Canon C 13, paragraph 1, reads:

Every person whose election to any archbishopric or bishopric is to be confirmed, or who is to be consecrated or translated to any suffragan bishopric, or to be ordained priest or deacon, or to be instituted, installed, licensed or admitted to any office in the Church of England or otherwise serve in any place, shall first, in the presence of the archbishop or bishop by whom his election to such archbishopric or bishopric is to be confirmed, or in whose province such suffragan bishopric is situate, or by whom he is to be ordained, instituted, installed, licensed or admitted, or of the commissary of such archbishop or bishop, takeFootnote 24 the Oath of Allegiance in the form following: ‘I, AB, do swear that I will be faithful and bear true Allegiance to Her Majesty Queen Elizabeth II, her heirs and successors, according to law; So help me God.’Footnote 25

However, any person may choose to make a solemn affirmation instead of taking the oath.Footnote 26

WHO IS TO TAKE THE OATH

Canon C 13, paragraph 1, reflects the provisions of sections 4 and 5 of the Clerical Subscription Act 1865. Section 4 enacts:

Every person about to be ordained priest or deacon shall, before ordination, in the presence of the archbishop or bishop by whom he is to be ordained at such time as he may appoint, … take and subscribe the oath of allegiance and supremacy …Footnote 27

Section 5 reads:

Every person about to be instituted or collated to any benefice, or to be licensed to any perpetual curacy, lectureship, or preachership, shall, before institution or collation is made or licence granted, … take the said oath of allegiance and supremacy, in the presence of the archbishop or bishop by whom he is instituted, collated, or licensed, or the commissary of such archbishop or bishop.Footnote 28

Nonetheless, the bishop may dispense certain overseas clergy from the requirement to take the oath of allegiance on admission to a benefice or certain other offices.Footnote 29 Canon C 13 therefore reads:

The aforesaid Oath of Allegiance shall not be required to be taken (a) by any subject or citizen of a foreign state whom either the archbishop, calling to assist him such bishop as he thinks fit, shall consecrate to officiate as a bishop in any foreign state, or (b) by any overseas clergyman to whom section 2 of the Overseas and Other Clergy (Ministry and Ordination) Measure 1967 applies or any other person ordained under section 5 of that Measure for overseas ministry, if the bishop dispenses with the said oath.Footnote 30

The oath is also required from the Dean of the Arches and Auditor, any deputy of the Dean, those appointed to sit in the Arches Court and Chancery, all diocesan chancellors, deputy chancellors and any person appointed to preside over a court in lieu of the chancellorFootnote 31 before entering on the execution of his or her office.Footnote 32 Similarly provincial and diocesan registrars must take and subscribe the oath of allegiance.Footnote 33

THE TAKING OF THE OATH

Prior to the passing of the Clerical Subscription Act 1865 the oath of sovereignty was taken by the bishop, priest or deacon during the service of consecration or ordination.Footnote 34 It took the following form:

I A. B. do utterly testifie [sic] and declare in my conscience, That the Kings Highness is the only Supream Governour [sic] of this Realm, and of all other His Highnesses Dominions and Countries, as well in all Spiritual or Ecclesiastical things or causes, as Temporal: And that no foreign Prince, Person, Prelate, State, or Potentate hath, or ought to have any jurisdiction, power, superiority, preeminence or authority Ecclesiastical or Spiritual within this Realm. And therefore I so utterly renounce and forsake all foreign jurisdictions, powers, superiorities and authorities; and do promise, That from henceforth I shall bear faith and true allegiance to the Kings Highness, His Heirs and lawful Successors, and to my power shall assist and defend all jurisdictions, privileges, preeminences and authorities granted or belonging to the Kings Highness, His Heirs and Successors, or united and annexed to the Imperial Crown of the Realm; So help me God, and the contents of this Book.

No oath may now be administered during an ordination or consecrationFootnote 35 and the present oath is taken before the consecration or ordination in the presence of the relevant archbishop or bishop at such time as he or she may appoint.Footnote 36 In the case of admission to an office it is taken before the relevant archbishop or bishop or his or her commissary.Footnote 37 In the case of an ecclesiastical judge it is taken either before the relevant archbishop or bishop in the presence of the diocesan registrar or in open court in the presence of the registrar.Footnote 38 As noted above, provincial and diocesan registrars must also take the oath of allegiance. The person taking the oath must do so holding the New Testament in his or her hand.Footnote 39

EFFECT OF BREACH BY A CLERICFootnote 40

Nowadays if an archbishop or bishop were to ordain any person without first requiring the taking of the oath of allegiance it is likely that the subsequent ordination would be irregular but nevertheless valid.Footnote 41 Nevertheless, the archbishop or bishop would be guilty of a breach of a duty imposed both by an ecclesiastical statute and by Canon; the consecrated or ordained cleric (other than a deacon) would be similarly in breach.Footnote 42 Ignorance of the law would be no excuse.Footnote 43 Similarly any cleric admitted to an ecclesiastical office without first taking the oath would be in breach of a duty imposed by ecclesiastical statute and Canon. Any ecclesiastical judge or registrar who did not take the oath (or, in the relevant circumstances, administer the oath) would equally be in breach of an ecclesiastical statute. If ordained the judge or registrar would also be in breach of the Canon.Footnote 44 Any cleric who subsequently acts in a manner contrary to his or her oath of allegiance would be in denial of that oath and therefore liable to ecclesiastical penalty. Similarly any cleric who denies the royal supremacy would be in breach of Canon A 7, even though the royal supremacy is no longer embraced within the oath of allegiance.Footnote 45

References

1 The numbering of the councils of Carthage has been disputed by historians but, according to J Bullard, Constitutions and Canons Ecclesiastical 1604 (London, 1934) p 184, this occurred at the Third Council. The decision was later adopted by the wider African Church at a later Council of Carthage (ad 418) and embodied in Canon XVIII of the Codex Ecclesiae Africanae (ibid).

2 Doe, N, ‘Obedience to doctrine in canon law: the legal duty of intellectual assent’, (1992) 7 Denning Law Journal 23–40 at 23Google Scholar: ‘Anglican ordinands in England and Wales receive no formal, comprehensive and systematic training in canon law, nor do the practitioners of church law, such as diocesan chancellors, diocesan registrars, and archdeacons'. However, the new framework for ordination training through Durham University's Common Awards in Theology, Ministry and Mission does contain modules in ‘Law and the public minister’ and the Ecclesiastical Law Society provides a booklet, L Yates and W Adam, Canon Law for the Newly Ordained (third edition, 2011), to candidates at the point of ordination.

3 Required by Canon C 14. See Bursell, R ‘The oath of obedience’, (2014) 16 Ecc LJ 168–186Google Scholar. For further information about the oath of obedience, see Bullard, Canons and Constitutions 1604, pp 183–188.

4 See Amending Canon 5 promulgated on 5 July 1977. Nevertheless, simony remains misconduct under the Clergy Discipline Measure 2003, as well as being, on occasion, a temporal offence: see Halsbury's Laws of England, vol 34 (fifth edition, London, 2011), paras 391, 616 and 1136.

5 E Coke, The Second Part of the Institutes of the Lawes of England (London, 1642), p 73; R Burn, Ecclesiastical Law (sixth edition, London, 1797), vol 3, p 12.

6 Burn, Ecclesiastical Law, vol 3, p 12. The form of this homage, at least after the Restoration, is set out in J Godolphin, Repertorium Canonicum; or an abridgement of the ecclesiastical laws of this realm (second edition, London, 1689), p 27: ‘the Bishop is introduced into the King's presence to do his Homage for his Temporalities or Barony, by kneeling down, and putting his hands between the hands of the King, sitting in the Chair of State, and by taking a solemn Oath, to be true and faithful to his Majesty, and that he holds his Temporalities of Him’. This remains the case even today: see Halsbury's Laws, vol 34, para 191.

7 E Gibson, Codex iuris ecclesiastici Anglicani (second edition, Oxford, 1761), vol 1, pp 116–117.

8 Ibid: ‘Illum nequequam fidem quam sibi debebat, simul & Apostolicae Sedis Obedientam … posse servare’ (‘In order to serve he must give to him such fidelity as is due and, to the Apostolic See, obedience’).

9 Ibid, p 117. The oath then continued as an oath of obedience in temporal matters.

10 Ibid.

11 See Succession to the Crown Act 1533, s 14; Succession to the Crown Act 1534, ss 1–3. By the Succession to the Crown: Marriage Act 1536, s 21, it was enacted: ‘He shall swear to bear faith, truth and allegiance alonely [sic] to the Kings Majestie, Supreme head in earth under god of the Church of England during his life, and to the heires of his body’. See also See of Rome Act 1536. G Bray The Oath of Canonical Obedience (London, 2004), p 18, n 19, suggests that the oath of obedience may have been extended to non-beneficed clergy as a result of the imposition of the oath of allegiance to the sovereign, although he points out that there is no documentary evidence to support the suggestion.

12 An Act for the Establishement of the King's Succession 1543, s 11.

13 See, for example, the Act of Supremacy 1558, ss 19 and 25; The Act 1 Will & Mar 1688 (c 1), ss 5–7; Oaths of Allegiance and Supremacy Act 1688, s 8; Bill of Rights 1688, s 3.

14 Bullard, Constitutions and Canons, p 40.

15 Quoted in Gibson, Codex, vol 1, p 148. As Bullard, Constitutions and Canons, p 183, points out, ‘Behind Canon XXXVI, beside Convocations and Royal Letters Patent, is the authority of the Act of Royal Supremacy.’

16 An Act declaring the Rights and Liberties of the Subject, and settling the Succession of the Crown 1689, s 3: ‘The usurped jurisdiction of the pope being abolished, and there being no longer any danger to the liberties of the Church or State from that quarter, and divers sovereigns of England having entertained more exalted notions of the supremacy, both ecclesiastical and civil, than were deemed consistent with the regal establishment and constitution, it was thought fit at the Revolution to declare and express how far the regal power, in matters spiritual as well as temporal, doth extend. For this purpose the following became part of the coronation oath:– Archbishop or Bishop: Will you to your utmost of your power maintain the laws of God, the true profession of the Gospel, and Protestant Reformed Religion established by law? And will you preserve to the bishops and clergy of this realm, and to the churches committed to their charge, all rights and privileges as by law do, or shall, appertain unto them, or any of them? The King or Queen shall answer: All this I promise to do.’ See A Stephens, The Book of Common Prayer: with notes legal and historical (London, 1854), vol 3, pp 2086–2087. See also Bill of Rights 1688, s 1; Coronations Oaths Act 1688, ss 2–4; Act of Settlement 1700, s 2; Accession Declaration Act 1910; Halsbury's Laws, vol 34, para 810. (The oath is now taken either at the coronation or on the first day of the meeting of the first Parliament after the accession: Halsbury's Laws, vol 34, para 810, n 4.) In their turn the archbishops and bishops acknowledge their fealty to the monarch during the coronation (ibid, para 810, n 12).

17 For these non-jurors, see Head, Royal Supremacy and the Trial of the Bishops 1555–1725 (London, 1962), pp 110–115; ‘Nonjurors, English’ in F Cross and E Livingstone (eds), The Oxford Dictionary of the Christian Church (third edition, Oxford, 1997), pp 1159–1160.

18 ‘Allegiance, Oath of’ in Cross and Livingstone, Oxford Dictionary of the Christian Church, p 42.

19 See N Mears, A Raffe, S Taylor and P Williamson (with L Bates), National Prayers: special worship since the Reformation, vol 1 (Woodbridge, 2013), p xlvi.

20 See W Phillimore, The Ecclesiastical Law of the Church of England (second edition London, 1895), vol 1, pp 809–812.

21 Clerical Subscription Act, ss 4, 5 and 9. See also the Promissory Oaths Act 1868, ss 2, 8 and 14(1).

22 The Canon Law of the Church of England (London, 1947), p iii. The Commission's terms of reference gave it the title ‘Canon Law Commission’ (see the Introduction to Canon Law, p viii) but the title of its actual report reads ‘Being the Report of the Archbishops’ Commission on Canon Law …’. It is of note that the Commission report states: ‘This revised body of canons will, if it becomes part of the Ecclesiastical Law, take the place of the Canons of 1603, and, together with the Book of Common Prayer and the Statutory Provisions, will [sic] in our opinion give the Church a body of law simple, up-to-date, and sufficient for its needs, without either being too detailed or revolutionizing the characteristics of our law, and will at the same time leave the ancient Canon Law as the source of the principles of our ecclesiastical jurisprudence’ (p 86). At the time there was a rigorist interpretation in relation to the Book of Common Prayer: see Westerton v Liddell (1857) Moore's Special Report 1 at 188; Martin v Machonochie (1868) LR 2 PC 365 at 382–383; R Bursell, Liturgy, Order and the Law (Oxford, 1996), pp 11–13. There were, of course, prayers for the King's Majesty in both Morning and Evening Prayer, as well as collects for the King in the service of Holy Communion.

23 Draft Canon X read: ‘We acknowledge that the King's Most Excellent Majesty, acting according to the laws of the realm, is the highest power under God in this kingdom, and has supreme authority over all persons in all causes, as well ecclesiastical as civil.’

24 The Clerical Subscription Act 1865, s 4, makes it clear that the cleric must not only take but also ‘subscribe’ the oath of allegiance. See also Draft Canon LXVII (n 25 below).

25 Draft Canon LXVII read: ‘Every person whose election to any Archbishopric or Bishopric is to be confirmed, or who is to be consecrated or translated to any Suffragan Bishopric, to be ordained Priest or Deacon, or to be instituted to any Benefice, or to be licensed to any Perpetual Curacy, Lectureship, or Preachership, shall first, in the presence of the Archbishop or Bishop by whom his election to such Archbishopric or Bishopric is to be confirmed, or in whose Province such Suffragan Bishopric is situated, or by whom he is to be ordained, instituted, or licensed, or of the Commissary of such Archbishop or Bishop, take and subscribe the Oath of Allegiance in the form following: I, A.B., do swear that I will be faithful and bear true Allegiance to His Majesty King GEORGE VI, His Heirs and Successors, according to law; So help me God.’

26 Oaths Act 1978, s 5; Canon C 13, para 3. The wording is: ‘I, AB, do solemnly and truly declare and affirm that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors, according to law.’ In the case of ecclesiastical judges the choice must equally be open by reason of section 5, in spite of the ambiguous wording of Canons G 2, para 3(a), G 3, para 5, and G 4, para 3.

27 As amended by the Church of England (Worship and Doctrine) Measure 1974, s 6(5), sch 2, and the Statute Law Revision Act 1875. In spite of the words ‘oath of allegiance and supremacy’ in s 4 of the 1965 Act, the form of oath as substituted by the Promissory Oaths Act 1858, s 8, is that prescribed by section 2 of that Act (headed ‘Form of oath of allegiance’). However, it makes no specific mention of supremacy: ‘The oath in this Act referred to as the oath of allegiance shall be in the form following; that is to say, “I, [name], do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, her heirs and successors, according to law. So help me God.”’

28 As amended by the Church of England (Worship and Doctrine) Measure 1974, s 6(3), sch 2 and the Church of England (Miscellaneous Provisions) Measure 1976, s 1, sch, pt I. All perpetual curacies were converted into vicarages by the Pastoral Measure 1968, s 87 (repealed).

29 Overseas and Other Clergy (Ministry and Ordination) Measure 1967, ss 2 and 5.

30 Canon C 13, para 2.

31 That is, by virtue of the Ecclesiastical Jurisdiction Measure 1963, s 27(1).

32 Ecclesiastical Jurisdiction Measure 1963, ss 2(5), 3(6)(7), 4(2), 27(2), sch I, pt 1.

33 Canon G 4, para 3.

34 ‘And before the Gospel, the Bishop sitting in his Chair shall cause the Oath of the King's Supremacy, and against the power and authority of all foreign Potentates to be ministered unto every one of them that are to be ordered’ (Rubric in The Form and Manner of Making of Deacons in The Form and Manner of Making, Ordaining and Consecration of Bishops, Priests and Deacons). The oath was taken by those being ordained priest after the reading of the Gospel and by those being consecrated archbishop or bishop after the sermon and the vesting with the rotchet. Stephens, Book of Common Prayer, p 2084, remarks: ‘Whatever were the immediate motives of King Henry VIII in rejecting the power of the Pope in the supremacy of the Church, no doubt can remain in the rational and reflecting breast that he was quite right in point of principle, as well as of law. Notwithstanding his arbitrary notions and despotic rule, in a conciliating moment he declared to the Convocation at York, “the sense of the supreme head of the Church, though offensive to ignorant ears, yet claimeth nothing more thereby than what Christian princes in the primitive times assumed to themselves in their own dominions”’.

35 Clerical Subscription Act 1865, s 11.

36 Ibid, s 4; Canon C 13, para 1.

37 Clerical Subscription Act 1865, s 5; Canon C 13, para 1.

38 Ecclesiastical Jurisdiction Measure 1963, ss 2(5)(a), 3(6)(7), 4(2), 27(2), sch I, pt 1; Canons G 2, para 3, and G 3, para 5. The registrar must record the taking of the oath, save (surprisingly) in respect of those appointed in accordance with s 27 of the Measure (ie trial judges nominated by the chancellor in lieu of himself): ss 2(5), 3(8), 4(2).

39 Oaths Act 1978, s 1(1).

40 As to enforcement against the laity see Halsbury's Laws vol 34, para. 9, n 11.

41 Canon C 1, para 1, states: ‘The Church of England holds and teaches … no man shall be accounted or taken to be a lawful bishop, priest, or deacon in the Church of England, or suffered to execute any of the said offices, except he be called, tried, examined, and admitted thereunto according to the Ordinal or any form of service alternative thereto approved by the General Synod under Canon B 2, authorized by the Archbishops of Canterbury and York under Canon C 4A or has had formerly episcopal consecration or ordination in some Church whose orders are recognized and accepted by the Church of England.’ The taking of the oath of allegiance is, of course, no longer required by the ordinal.

42 See the wording of the Clerical Subscription Act 1865, s 4, and Canon C 13, para 1. A deacon would only be in breach of the statute as the provisions of the Canon do not predate the Reformation and would not therefore bind a person as yet still a lay person: Case of Convocations (1611) 12 Co Rep 73; Bishop of St David's v Lucy (1699) Carth 484; Matthew v Burdett (1703) 2 Salk 412; Cox's Case (1700) 1 P Wms 29.

43 HM Procurator General v Stone (1808) 1 Hag Con 424 at 432.

44 As to the position of lay ecclesiastical judges and registrars, see Halsbury's Laws of England, vol 34, para 10, n 12.

45 Matthew v Burdett (1703) 2 Salk 412.