(2012) Ecclesiastical Law Journal, 14, 407–413
1 September 2012
Ecclesiastical Law Journal > 2012 - Volume 14 > Issue 3, 1 September > Articles
Ecclesiastical Law Journal
Comment
Burkhard
Steinberg
© Cambridge University Press 2012
Ecclesiastical
Law
Royal
Peculiars are an oddity of the Church of England. Churches and chapels that
would normally come under the jurisdiction of the local bishop are in fact
(2012) Ecclesiastical Law Journal, 14, 407–413 at 408
'peculiar'
when they have an ordinary who is not the local bishop but someone appointed by
the Crown — and in some cases the Queen herself. In the Channel Islands, the
whole deaneries of Jersey and Guernsey rather than individual churches claim to
be Royal Peculiars. Whether this claim is valid is not easy to determine. While
together with the Isle of Man, but excluding Ireland, they form part of the
British Islands, they are not part of the United Kingdom.1 The
United Kingdom government is responsible for the defence
and international relations of the Channel Islands, but the Crown is ultimately
responsible for their good government, and Acts of the British Parliament do
not apply to the Channel Islands.
So
how did they end up in this extraordinary state of near independence? The
Channel Islands were part of the Duchy of Normandy when William set sail and
perhaps fortuitously acquired the throne of England at Hastings. The
Anglo-Norman Realm as it then became, survived barely 150 years before King
John lost continental Normandy in June 1204. John managed to retain sovereignty
over the islands, however, which remained of strategic importance during the
many centuries of war between England and France. There were temporary
occupations by the French, and more recently by the Germans for five long
years. The Crown never sought to incorporate the islands into the realm of
England, so the two Bailiwicks of Jersey and Guernsey have enjoyed a degree of
self-determination over the centuries wholly disproportionate to their size.
For all domestic matters, the Islands' parliaments, the States of Deliberation,
make their own laws.2 The islands have wide powers of
self-government, although primary legislation passed by the assemblies requires
approval by the Queen in Council.
In
fulfilling its responsibilities to the Channel Islands, the Crown acts through
the Privy Council. The Secretary of State for Justice and Lord Chancellor is
the Privy Counsellor primarily concerned with the affairs of the Channel
Islands. In the islands, the Queen is known as the Duke of Normandy: at
official functions, islanders raise the loyal toast to 'The Duke of Normandy,
our Queen'. The Royal Court, established in the thirteenth century, applies a
common law based on the custom of Normandy.
All
these legal distinctions also apply to those churches in the islands that are
in communion with the Church of England. So are they, in fact, members of the
Church of England? That is one of many questions about the claim to be Royal
Peculiars. An example can be found in ecclesiastical legislation. The Channel
Islands (Church Legislation) Measures 1931 and 1957 provide that Measures
(2012) Ecclesiastical Law Journal, 14, 407–413 at 409
passed
by the Church Assembly or, subsequently, the General Synod may be applied to
the Channel Islands but only if the measure contains express provision that it
may be so applied.3 The mechanism for incorporation of Measures into
insular law is by Order in Council. For instance, the Priests (Ordination of
Women) Measure 1993 was incorporated into Jersey law by Order in Council in
1999.4 This raises another question about the status of peculiar:
are the Channel Islands in the Province of Canterbury, and, more immediately of
relevance, in the diocese of Winchester? The Isle of Man is in a very similar
legal situation to the Channel Islands,5 but it cannot claim to be a
peculiar as it has its own diocese and the Bishop of Sodor and Man.
The
Deanery of Guernsey comprises 16 parishes, 14 in Guernsey and one each for the
islands of Alderney and Sark. Similarly, the Deanery
of Jersey has 18 parishes, and the dean is the Rector of St Helier
Parish Church. The deans are very senior members of insular society. The Dean
of Jersey ranks next after the Lieutenant Governor, Bailiff and Deputy-Bailiff
and is an ex-officio member of the States. The Dean of Guernsey ranks third
after the Lieutenant Governor and Bailiff, and, though not a member of the
States of Deliberation, he is a member of the States of Election. The earliest
record of the appointment of a Dean of Guernsey dates from 1295; since 1435 the
Dean of Jersey has been appointed by the Crown.6
The
Dean of Jersey writes:
The Dean is appointed by the Crown and arrives in Jersey with Letters Patent from Her Majesty and is sworn in during a very impressive ceremony in the Royal Court. He also receives the Commission of the Bishop of Winchester (or if there is a vacancy, the Archbishop of Canterbury) which empowers him to do, as the Bishop of Winchester put it to me 'What I would do if I were here'. I can't ordain or confirm but everything else, including clergy appointments, the Ecclesiastical Court and clergy discipline comes under the Dean.7
As 'Commissaries' (acting in a surrogate role for the bishop), the deans conduct all institutions to benefices and preside over the Ecclesiastical Court.
The
fact that the Dean of Jersey is directly appointed by the Queen, and that the
deans are presidents of their respective ecclesiastical courts, goes some way
(2012) Ecclesiastical Law Journal, 14, 407–413 at 410
to
showing that the deaneries over which they preside are Royal Peculiars.
However, there is general confusion as to their status. The Deans of Jersey and
Guernsey are listed in The Church of
England Yearbook alongside the Deans of the (non-royal) Peculiars of
Battle, Bocking and Stamford.8 Crockford's
Clerical Directory does not include the Channel Islands in its list of
Royal Peculiars but nor does it include the Royal Peculiars of King's College
and Trinity College in the University of Cambridge. Those listed come under the
administration of the Clerk of the Closet, a bishop and member of the Queen's
household.9 The Cambridge colleges are Royal Peculiars because Henry
VI and Henry VIII respectively exempted them from the jurisdiction of their
diocesan, the Bishop of Ely, but they have no connection with those under the
administration of the Clerk of the Closet. The Channel Islands are also not
under this household official and fall into a different category. Nevertheless,
the fact that Her Majesty appoints the deans by virtue of her right as Duke of
Normandy points to them being Royal Peculiars.
The
question of episcopal jurisdiction is bound up in the complicated
ecclesiastical history of the islands. In the year 912, Rollo, the first Duke
of Normandy, transferred the Channel Islands to the Diocese of Coutances, in Normandy. This was the position of the Church
in the islands when William landed in England. With the separation of the
islands from mainland Normandy in 1204, the English sovereign King John
acquired the right of presentation to their benefices. This is possibly the
origin of the islands becoming Royal Peculiars. At this time, the Channel
Islands came under the Diocese of Exeter, but after a short time were reunited
with the Diocese of Coutances.10 There they continued, by the Treaty
of Bretigny in 1360, in which the French abandoned
any claims to the Channel Islands in return for English recognition of the
Bishop of Coutances. There occurred another blip in
the history of the Diocese of Coutances, probably not
in fact affecting the Channel Islands at all: in 1378, during the papal schism,
the diocese was transferred by the Urbanite pope to that of Nantes, but when
the schism ended in 1417, the islands returned to Coutances.11
There
is confusion about a Bull of Pope Alexander VI: according to Duncan, the Bull
of 5 November 1496 separated the Channel Islands from the Diocese of Coutances and transferred them to the Diocese of Salisbury.12
However, according to Wainewright, the Bull was dated
20 January 1500 and transferred them to the Diocese of Winchester.13
As both Bulls are mentioned by Marr, it is entirely
(2012) Ecclesiastical Law Journal, 14, 407–413 at 411
possible,
if inconsistent, that both were executed, although he states that that they
remained de facto under the Bishop of Coutances.
Wainewright questions whether these Bulls were
ever revoked. However, in 1550 Edward VI, by Order in Council, confirmed the
ecclesiastical jurisdiction of Bishop of Coutances as
diocesan bishop of the Channel Islands 'in all things not contrary to the laws
of the realm', so it appears that the Bulls were either revoked or, more
probably, ignored. Perhaps Edward made this transfer because Stephen Gardiner,
the opponent of the Archbishop of Canterbury, Thomas Cranmer, was the Bishop of
Winchester at the time, until his sequestration on 19 July 1551. Evidently, the
Channel Islands were still Roman Catholic. The Ecclesiastical Licences Act 1533, which replaced the papal authority to
grant ecclesiastical dispensations with that of the Archbishop of Canterbury
under the authority of the King in Council, would not have applied to the
Channel Islands. Nor would the Acts of Supremacy, which were hardly necessary
as the sovereign was the suzerain of a feudal state. An Order in Council of
Elizabeth I of 11 March 1569 finally placed the Channel Islands under the
episcopal jurisdiction of the Bishop of Winchester. That Order in Council
remains the foundation upon which ecclesiastical jurisdiction is still
exercised in the Channel Islands, although there followed a long period of
Presbyterianism until the Restoration of Charles II re-established the
deaneries.14
The
problems with the deaneries' claim to be Royal Peculiars are several and
sparsely documented. Crockford notes
an 'Archdeaconry of the Channel Islands', but there is no Archdeacon of the
Channel Islands.15 However, the deans have archidiaconal functions
and are members of the Southern Group of Archdeacons. The former Bishop of
Winchester considers the Islands only 'peculiars in the technical sense', but
believes that the bishop is their ordinary.16 Although he is the
ordinary, this was by virtue of Elizabeth I's Order in Council, and not, I
believe, by right as diocesan bishop.
This
is not a question of new legislation but rather of new interpretation. One
hates to question a legal authority, but even that can be wrong. The 1957
edition of Halsbury's Laws of England stated,
'The Channel Islands form part of the Diocese of Winchester'.17 This
was corrected in the new 2011 edition, where it is made clear that the Islands
are 'annexed to' Winchester.18 This means that they are not within,
or part of, the Diocese of Winchester, but that the bishop has ordinary
jurisdiction in the islands in ecclesiastical causes. In fact, the correct
interpretation of the Order in Council of 11 March 1569 is probably that
Elizabeth I transferred only the ecclesiastical jurisdiction to the Bishop of
(2012) Ecclesiastical Law Journal, 14, 407–413 at 412
Winchester;
at no time has the evolution of the Channel Islands' constitution involved
amalgamation with, or subjection to, the Government of the United Kingdom.
Unfortunately, the actual Order in Council is missing from the Privy Council
Records.
There
is a document held in Hatfield House that refers to 'Articles to be considered
by the Queen's Privy Council', and that speaks of the spiritual government of
Jersey being that of the Diocese of Countances. This
gives credence to the Order in Council of Edward VI of which the Privy Council
Office could find no trace. The articles to be considered include
That the Bishop of Winchester may have the superintendence of the spiritual 'regiment' in Jersey and Guernsey, saving always to the Bishop of Coustances such rights and duties as by any payments appertaineth to that see, or at the least such rights and duties as the reformed churches in the diocese of Coustances yield there for the consequence that dependeth thereof.19
If that was indeed the text that became part of Elizabeth I's Order in Council, then the conclusion would be that, although the Bishop of Winchester has spiritual jurisdiction, the Channel Islands are not within his diocese. It could even be interpreted that there is residual presence of the Diocese of Coutances.
The
Pope did not have such a problem, as he claimed universal jurisdiction. It
seems that the only time that the Channel Islands were clearly within the
boundaries of a diocese was when Rollo incorporated them into the Diocese of Coutances. With the division of the territory of the Duchy
of Normandy in 1204, the bishop would have ceased to exert any control over
what was now a foreign region which had once been part of his diocese.
The
Dean of Jersey agrees that the islands are not fully part of the Diocese of
Winchester. The Vicar-General of the Province of Canterbury has stated 'I am
not sure that these are the true peculiars — first anomalies.'20 A
nineteenth-century definition of peculiars states that things 'exempt
jurisdiction are so called, not because they are under no ordinary; but because
they are not under the ordinary of the diocese, but have one of their own.
These are therefore called peculiars, and are of several sorts'.21
The Royal Peculiar definition means that it is not part of a diocese, but that
the Crown has provided for ecclesiastical jurisdiction.
(2012) Ecclesiastical Law Journal, 14, 407–413 at 413
My
contention is that the deaneries of Jersey and Guernsey are Royal Peculiars. The various reasons for reaching this
conclusion include the facts that the deans are appointed by Her Majesty the
Queen, that they fall into a special category of peculiars and that the Bishop
of Winchester is not the diocesan bishop but is appointed by the Queen to
exercise episcopal jurisdiction in her feudal territory of the Channel Islands.
They are thus under the ecclesiastical jurisdiction of the Bishop of Winchester
(and, failing that, under the Archbishop of Canterbury) but are not part of his
diocese. They do fall under the definition of peculiar in having episcopal
jurisdiction by an ordinary appointed by the Crown, failing to have a bishop of
their own, as they are not in any diocese with episcopal jurisdiction; nor,
indeed, are they in the same country.
End of Document