LEGAL AND PAROCHIAL

APOSTOLICAE CURAE AND CANON LAW

POPE LEO XIII ISSUED Apostolicae Curae on 13 September 1896, stating that

...we pronounce and declare that ordinations performed according to the Anglican rite are utterly invalid and altogether void.

It is a document which has deeply rankled with Anglicans ever since, even though its conclusions were shown to be unsustainable in the published response of the Anglican archbishops in Saepius Officio, of February 1897. Dom Gregory Dix exposed still further the weakness of Pope Leo’s case in his study, The Question of Anglican Orders, in 1944.

The politicking at Rome in 1895-6 which resulted in the issue of such a demonstrably flawed statement is well described, ironically enough, in Shane Leslie’s 1953 biography of Cardinal Gasquet, who provided the evidence to convince the papal commission which actually produced Apostolicae Curae. It was of course the heirs of the Oxford Movement to whom Apostolicae Curae gave the greatest offence, precisely those within the Church of England who had sought most strenuously to maintain Catholic faith and order, who looked to reunion of the Western Church as their goal, and who had hoped that Lord Halifax’s mission to the Pope would secure a recognition of Anglican orders, to pave the way for ecumenical progress.

Shane Leslie’s study of Cardinal Gasquet is both revealing and instructive in understanding how Apostolicae Curae came about. The first impressions made in Rome by Lord Halifax and his advisers were extremely favourable, causing great alarm to Gasquet and the English Roman Catholics, who feared that all the sacrifices made since the Reformation in order to preserve a separate Roman presence in England would be undone, should the English Prayer Book and Ordinal be recognised as conferring valid orders. And a careful calculation appears to have taken place in certain quarters, whether Anglicans would return to the Roman fold more quickly if their orders were acknowledged, or if they were condemned: a gross miscalculation as it turned out, with only the barest trickle crossing the Tiber.

Cardinal Gasquet, as well as wishing to avoid any claim that the clergy of the Church of England were validly ordained and therefore able to offer mass, also hoped that the condemnation of Anglican orders would result in widespread conversions from the Church of England. The Converts’ Aid Society was launched, to provide financial assistance to former Anglican clergy and religious seeking admission to the Roman Church. In the event, Apostolicae Curae provoked only disdain. The Roman Catholic novelist, Piers Paul Read, recently argued in the Church Times that Roman Catholics nowadays do not regard Anglican orders as bogus, in the sense in which Gasquet and his contemporaries understood Leo XIII’s Epistle. He quotes the Decree on Ecumenism of the second Vatican Council, which recognised that grace might be effective outside the boundaries of the Roman Catholic Church. Nevertheless, he still unconsciously refers to Anglicans as “non-Catholic Christians”, and goes on to repudiate the suggestion that Anglicans share the same beliefs about the nature of the Eucharist as Roman Catholics. And the official Roman Catholic view continues to be, despite Saepius Officio, and the later Malines Conversations, and the fresh impetus given to ecumenism by Vatican II, and despite many years of painstaking work by ARCIC, which have revealed to both sides the substantial measure of shared belief which exists in the two Communions, that the effects of Pope Leo’s 1896 pronouncement remain unchanged.

Anglicans who seek to become Roman Catholics must receive a form of Confirmation before being admitted to Holy Communion; and Anglican priests, who may have been exercising a priestly ministry for many years, perhaps even using the Roman Liturgy and Divine Office, must be ordained as if they were laymen, receiving Holy Orders for the first time. Anglicans married to Roman Catholics may not, officially, receive Holy Communion together, unless they first become Roman Catholics. Their Roman Catholic partners are forbidden to receive Holy Communion in the Church of England, whose clergy are judged incapable of consecrating the Sacrament.

The situation is particularly incomprehensible for Anglicans whose beliefs mirror almost exactly those of their Roman Catholic friends and counterparts. It is as if there has been a complete failure to grasp what Anglicanism believes and teaches, despite all the ecumenical documents published by ARCIC, and the thawing of inter-church relations since Vatican II. There is also, on the Anglican side, a deep-rooted inability to reckon with the ethos of the Roman Catholic Church, in which the restraining presence of canon law is far more pervasive and influential than members of the Church of England generally seem able to comprehend.

The leading Roman Catholic canon lawyer, Fr Robert Ombres OP, gave a lecture to the Ecclesiastical Law Society at a meeting in 1988, in which he outlined the influence of canon law in the Roman Catholic Church. As Fr Ombres put it,

For Roman Catholics, in so far as their life in the Church is concerned, the canon law operates as a juridical expression of the Church’s doctrine about itself, and of its pastoral responsibility for bringing the faithful to the complete awareness of and response to the redemption once wrought for them by God in Christ.

The canon law of the Church of England, both in its 1603 and its 1969 revisions, is markedly less concerned with matters of doctrine than its Roman counterpart, most lately revised in 1917 and again in 1983. English canon law is also considerably less prescriptive in matters of detail. English law has always preferred to leave much more to the decision of the courts, and to establish a body of precedents which interpret the law.

The so-called common law of England differs in this from the Roman or civil law upon which the Codex Iuris Canonici is based, with its preference for codification at the outset. Ombres points out that Canon 16(3) actually establishes that judicial decisions bind only the persons appearing before the court, and do not form a body of law in their own right. There is a way round Apostolicae Curae, which states within itself that it will always stand as the final decision of the Roman Catholic Church on the question. The will to achieve this will depend very much on other, external factors, especially the disposition of Anglicanism towards other issues which are matters of close concern in Rome. If rapprochement can be brought about on remaining issues, such as the role of the papacy in a reunited episcopal communion, then the apparently final nature of Apostolicae Curae may conceivably be resolved by introducing into the practice of Roman canon law the principle of judicial review. This has had considerable impact on American and English law in recent years, enabling the courts to go behind the text of legislation or of decisions made by executive bodies, and declare that they have been wrongly formulated, or are contrary to basic constitutional principles.

It would then be open to the Roman authorities to invite fresh consideration of the evidence which led to the 1896 verdict on Anglican orders, and to include subsequent study of the issue in arriving at a judgement on Apostolicae Curae itself. If it should become clear that Leo XIII was given mistaken, even misleading advice by Gasquet and his colleagues, a declaration could then be issued revoking the 1896 judgement, and providing for the new insights which a full century, including an ecumenical council, has brought about.

Stephen Trott is the Rector of Pitsford with Boughton in the diocese of Peterborough.

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