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Unrepealed: why the proviso to Canon 113 of 1603 remains in force
Published online by Cambridge University Press: 07 March 2025
Abstract
The proviso to Canon 113 of 1603 was not a substantive enactment of the seal of confession, but rather was intended to ensure that the canon did not conflict with a continuing canonical duty not to disclose sins revealed in confession. The 1947 Canon Law report proposed two draft canons, one regulating which priests could hear confessions, and one enacting the seal substantively. In response to criticism of these drafts, Archbishop Fisher proposed what became paragraphs 1–3 of Canon B 29. Attempts to restrict hearing of confessions to certain categories of priests were eventually abandoned in favour of what became paragraph 4. The draft canon embodying the seal was replaced by a draft Clause based on the proviso, but Government lawyers indicated that it would not receive royal assent. Instead, the proviso was left in place. An act of Convocation based on it was also passed to signal the Church’s continued espousal of the seal as a doctrinal principle. The Convocations eventually agreed to delete the proposed new Clause, while a canon explicitly retaining the proviso when the rest of the 1603 code was repealed received royal assent. That no priest would in practice break the seal, even if instructed to do so by a judge, was almost universally accepted.
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Footnotes
Clerk to the General Synod, 2011–2013; Director of Forward in Faith, 2013–2020
References
1 The Canons of the Church of England: Canons Ecclesiastical promulged by the Convocations of Canterbury and York in 1964 and 1969 and by the General Synod of the Church of England from 1970, 8th edn (London, 2022), 209.
2 Quoted by Hill, M, ‘Change and Decay – The Twilight Years of an Established Church: 1994–2023’ in Doe, N and Coleman, S (eds), The Legal History of the Church of England from the Reformation to the Present (Oxford, 2024), Google Scholar.
3 For another such illustration, concerning liturgical vesture, see N Patterson ‘The Post-War Church – Revision and Stability: 1947–94’ in Doe and Coleman (eds) (note 2), 193–212, at 196–198.
4 Constitutions and Canons Ecclesiastical, 1604, Latin and English, with notes by J V Bullard (London, 1934), 116–119. The canons promulged by the Convocation of Canterbury in 1604 are known as the canons of 1603 because the relevant convocation began in that year.
5 Book V, Titulus XVI, Chapter VIII: Bullard, J and Bell, H Chalmer (eds), Lyndwood’s Provinciale: The Text of Canons therein contained, reprinted from the Translation made in 1534 (London, 1929), 149–150Google Scholar. On Lyndwood’s Provinciale more generally see Cavill, P, ‘The First Readers of Lyndwood’s Provinciale’ (2022) 24 Ecc LJ 2–13Google Scholar.
6 As suggested, for example, by A Atherstone, ‘Is the “seal of the confessional” Anglican?’, <https://www.psephizo.com/life-ministry/is-the-seal-of-the-confessional-anglican>, accessed 3 June 2024. For a detailed response to Atherstone’s arguments by Russell Dewhurst, see R Dewhurst and C Podmore, ‘The Unrepealed Proviso to Canon 113 of 1603/4’ in ‘The Report of the Ecclesiastical Law Society Working Party on the Seal of Confession, 30 June 2023’: <https://ecclawsoc.org.uk/seal>, accessed 3 June 2024.
7 E Gibson, Codex Juris Ecclesiastici Anglicani (London, 1713), vol 1, 422–489.
8 ‘Irregularity’ is a term denoting a canonical impediment to reception of holy orders or (as in this case) to the exercise of any of the functions of holy orders already received.
9 The Ministry of Absolution (GS Misc 1085, 2014), n 1: ‘As is apparent from the text, the Canon allowed for an exception to the duty of confidentiality where nondisclosure could have rendered the priest himself vulnerable to prosecution for a capital offence. This provision was, however, never operative since by 1603 parliament had already legislated to abolish the common law capital offence for a person who had knowledge of a treasonous plot not to reveal the plot to the Crown. Instead, it had created a statutory offence of misprision of treason, with a maximum sentence of life imprisonment’.
10 For interpretations that differ to some extent from that presented here, see Bursell, R, ‘The Seal of the Confessional’, (1990–92) 2 Ecc LJ 84–109Google Scholar at 84, and Doe, N, The Legal Framework of the Church of England: A Critical Study in a Comparative Context (Oxford, 1996), CrossRefGoogle Scholar.
11 See Doe, N, ‘Pre-Reformation Roman Canon Law in Post-Reformation English Ecclesiastical Law’ (2022) 24 Ecc LJ 273–294Google Scholar. As the Church of England’s working group on the seal pointed out in 2018, ‘The rule of the pre-Reformation canon law concerning the priest’s duty of absolute confidentiality in relation to auricular confession has been “recognised, continued and acted upon in England since the Reformation”’: ‘Report of the Seal of Confessional Working Party’ (2018), 22: <https://www.churchofengland.org/sites/default/files/2019-05/seal-of-the-confessional-full-document-final-may-2019.pdf>, accessed 17 August 2024. Therefore, by 1969, when section 7 of the Submission of the Clergy Act 1533 was repealed, the seal of confession was well established as customary law.
12 The Canon Law of the Church of England: being the Report of the Archbishops’ Commission on Canon Law, together with Proposals for a Revised Body of Canons; and a Memorandum ‘Lawful Authority’ by the Honourable Mr Justice Vaisey (London, 1947), 155–158.
13 Chronicle of Convocation: 13 September 1950, 459–463.
14 Chronicle of Convocation: 22 May 1951, 56–65; 23 May 1951, 81–85; 16 January 1952, 6, vii, 31.
15 Chronicle of Convocation: 16 January 1952, 6, vii, 31; 17 January 1952, 95–98; House of Laity Minutes, 9 November 1953 (C.A. 1097/L), 6.
16 The three differences, resulting from amendments made in the 1960s, were all in para (1): ‘act or omission’ instead of ‘word or deed’, ‘their sins’ instead of ‘sins’, and ‘Absolution’ rather than ‘Absolutions’.
17 Chronicle of Convocation: 13 September 1950, 459–463.
18 Chronicle of Convocation: 22 May 1951, 35–39; 23 May 1951, 97–103.
19 York Journal of Convocation: 23 May 1951, 96–108.
20 The Revised Canons of the Church of England Further Considered (London, 1954), 82–83.
21 York Journal of Convocation: 12 May 1954, 27–31.
22 See pages 11–12, above.
23 Manuscript note by Archbishop Fisher on page 83 of his copy of The Revised Canons of the Church of England Further Considered (1954) in Lambeth Palace Library; Convocations of Canterbury and York, Memorandum from the Canon Law Steering Committees, May Group of Sessions 1955.
24 York Journal of Convocation: 6 July 1955, 94–95.
25 Chronicle of Convocation: 13 October 1955, 417–418; 16 May 1956, 82–83; 17 May 1956, 149–150, 191.
26 Chronicle of Convocation: 16 May 1956, 83–84; 17 May 1956, 150; 9 October, 219–221, 258–261; 10 October 1956, 291.
27 Convocations of Canterbury and York, Revision of the Canons Ecclesiastical, Stage 1, Memorandum from the Steering Committees, January, 1958.
28 The differences are: ‘that place’ instead of ‘such place’, ‘the Canon’ for ‘this Canon’, ‘a priest’ not ‘any Priest’, ‘if there is’ for ‘if there be’, and ‘some urgent’ instead of ‘some other urgent’.
29 Fisher’s manuscript note is on page 39 of this copy, which is in Lambeth Palace Library.
30 R Speed (revised), ‘Barnes, Sir Thomas James (1888–1964)’, Oxford Dictionary of National Biography, <https://doi.org/10.1093/ref:odnb/30608>, accessed 21 July 2024.
31 York Journal of Convocation: 25 January 1958, 66.
32 York Journal of Convocation: 25 January 1958, 66–67; Chronicle of Convocation: 14 January 1958, 24.
33 Chronicle of Convocation: 1 October 1958, 250.
34 Chronicle of Convocation: 1 October 1958, 250–251.
35 Chronicle of Convocation: 2 October 1958, 343.
36 York Journal of Convocation: 30 September 1958, 6, 45–51; Chronicle of Convocation: 1 October 1958, 251.
37 Chronicle of Convocation: 1 October 1958, 253.
38 Ibid, 254.
39 Chronicle of Convocation: 1 October 1958, 253–259.
40 Chronicle of Convocation: 2 October 1958, 325–348; 308–309.
41 Chronicle of Convocation: 28 April 1959, 157–160.
42 General Synod of the Church of England, Standing Orders (July 2024 edn), 19: SO 41 (2).
43 Chronicle of Convocation: 29 April 1959, 224.
44 Ibid, 225.
45 Ibid, 229–230.
46 Ibid, 230.
47 Ibid, 231.
48 York Journal of Convocation: 29 April 1959, 81–96.
49 York Journal of Convocation: 28 April 1959, 33.
50 York Journal of Convocation: 29 April 1959, 83.
51 Ibid, 93.
52 Ibid, 96.
53 Chronicle of Convocation: 30 April 1959, 272–289.
54 Ibid, 281.
55 Ibid, 289, 324–326.
56 Canon Law Revision 1959 (London, 1960), 72–74.
57 Chronicle of Convocation: 6 May 1963, 12.
58 Convocations of Canterbury and York, Sessions of October, 1966, Memorandum from the Canon Law Steering Committees.
59 Chronicle of Convocation: 10 October 1966, 246.
60 Ibid, 250; Convocations of Canterbury and York, Revision of the Canons Ecclesiastical, Stage 3, May, 1968.
61 Chronicle of Convocation: 15 May 1968; York Journal of Convocation: 14 May 1968, 35–37.
62 Chronicle of Convocation: 8 October 1968, 125; York Journal of Convocation: 8 October 1968, 18–20.
63 York Journal of Convocation: 6 May 1969, 7; Chronicle of Convocation: 7 May 1969, xi.
64 For a recent analysis of the current position, see Hill, M and Grout, C, ‘The seal of the confessional, the Church of England, and English law’ in Hill, M and Thompson, A K (eds), Religious Confession and Evidential Privilege in the 21st Century (Redland Bay, Queensland, 2021), 139–164Google Scholar.
65 See Podmore, C, ‘Self-Government Without Disestablishment: From the Enabling Act to the General Synod’, (2019) 21 Ecc LJ Google Scholar.
66 R Ward, ‘The Regal Power of the Church: The Work of Edmund Wood Revisited’ (Ecclesiastical Law Society London lecture, 2024); E Kemp, ‘Preface’, vi in E Wood, The Regal Power of the Church or The Fundamentals of the Canon Law, new edn (London, 1948).