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.