Illegitimacy And Anglican Canon Law

It’s not every day that Anglican canon law makes the headlines, but the revelation that the Archbishop of Canterbury was the product of his mother’s affair with Sir Winston Churchill’s private secretary has reminded the world that illegitimacy used to be an impediment to ordination in the Church of England. Although the Daily Telegraph ran a brief article on the history of the subject, it’s not terribly accurate.

The article mentions the canons of 1604, but the reference is something of a non-sequitur since the canons don’t mention illegitimacy. The prohibition against the ordination of illegitimate persons actually stems from medieval Roman Catholic canon law. It first arose in the late eleventh century under Pope Urban II, who declared that the illegitimate children of priests couldn’t be ordained unless they joined certain religious orders, and the Council of Poitiers reaffirmed this prohibition at the very beginning of the twelfth century.[1] Although the ban was initially confined to the sons of priests, the Liber Sextus Decretalium extended the prohibition to all illegitimate children.[2]

Illegitimacy was a widespread problem in the Middle Ages.[3] Many priests were resistant to the idea of clerical celibacy and continued to father children by concubines. Among the laity, cohabiting was sometimes preferable to marriage, particularly if the couple couldn’t marry due to canonical impediments or societal pressure. But the severity of the law was tempered by the fact that an illegitimate child could obtain a dispensation from the ‘defect of birth.’ For the most part, they were readily available. Anyone who could pay the required fee could hope to obtain a dispensation.[4]

Although Pope Boniface VIII declared that the Pope alone could dispense with the defect of birth, he also allowed bishops to grant dispensations to individuals within their dioceses who sought minor orders without cure of souls.[5] Eventually, the papacy received so many requests for dispensations that further delegation was necessary.[6] In England, the Archbishop of Canterbury enjoyed the right to grant dispensations for illegitimacy by virtue of his position as perpetual papal legate.[7]

The bulk of the old Roman Catholic canons remained on the books even after the Reformation. This was supposed to be a temporary expedient. But while there were several attempts to replace the ancient canons in the years following the break with Rome, they all failed in the end. As a result, the ancient canons remained in force alongside newer canons passed by the Convocations of Canterbury and York.

The pre-Reformation system of dispensations also survived, though they were now based on statute rather than papal authority. The Archbishop of Canterbury continued to issue a wide range of dispensations through the Court of Faculties.[8] Although illegitimate persons still needed a dispensation in order to be ordained, the prohibition fell by the wayside by the eighteenth century.[9] It was dusted off again in the twentieth century,[10] though in practice dispensations were practically automatic. It was finally swept away for good by Canon C4(4) in 1964.[11]

There have been suggestions in the media that, if weren’t for this change, Archbishop Welby’s ministry would have come to an end once his true paternity was revealed. In reality, that would be unlikely to happen. We’ve already seen how it was possible to circumvent the ban on the ordination of illegitimate persons through dispensations. There were even cases where dispensations were granted after a cleric was already in office, so it’s possible to retroactively validate an illicit ordination.

However, there would be one kink to work out. Dispensations for illegitimacy are issued under the authority of the Archbishop of Canterbury, and Welby could hardly issue a dispensation to himself. But there is an alternative: the Queen could commission several bishops to issue a dispensation to Welby under section 11 of the Ecclesiastical Licenses Act 1533.[12] This is what James I did when Archbishop Abbot was held to be canonically irregular after accidentally killing a gamekeeper (for a more detailed discussion of this strange case, see this post), and it would probably be the best way forward today as well.

NOTES

[1] Wilfrid Hooper, “The Court of Faculties,” The English Historical Review 25 (1910): 673.

[2] Bk. I, tit. XI.

[3] Jussi Hanska and Kirsi Salonen, Entering a Clerical Career at the Roman Curia: 1458-1471 (Farnham: Ashgate Publishing Limited, 2013), 37-38.

[4] Hooper, 673.

[5] Hanska and Salonen, 39.

[6] Hanska and Salonen, 39-41.

[7] Hanska and Salonen, 54-55.

[8] Despite the name, the Court of Faculties isn’t a court in the conventional sense since it doesn’t hear cases. However, its presiding officer, the Master of Faculties, acts discretionally rather than ministerially, and he sometimes sits in iudicio to hear arguments regarding his powers. Hooper, 676.

[9] See William Blackstone, Commentaries on the Laws of England, vol. 1 (Oxford: Clarendon Press, 1765-1769), 447.

[10] Hooper, 681. For the text of the dispensation in the early twentieth-century, see n. 38.

[11] This canon explicitly declared that illegitimacy was not a bar to ordination. This supersedes any contrary provisions found in the ancient canons since they are only in force to the extent that they do not conflict with subsequent enactments.

[12] It states that, if the Archbishop of Canterbury refuses to issue a dispensation, the Sovereign may commission two or more bishops to grant it in his stead. This power has also been held to encompass cases where the Archbishop is unable rather than unwilling to act.

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