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An Illegitimate Archbishop

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On Saturday 9 April the newspapers filled their front pages with the revelation that DNA testing showed that Justin Welby, Archbishop of Canterbury since October 2013, was not fathered by his mother’s first husband, Gavin Welby, an alcoholic former whisky salesman. Instead, he was the result of a fling immediately before  their wedding, with Sir Anthony Montague Browne, Private Secretary to Sir Winston Churchill. Serious newspapers noted that it was fortunate that the Church of England had amended its canon law in the 1960s to remove a longstanding prohibition on illegitimate men becoming bishops, claiming that otherwise Archbishop Welby’s appointment to Canterbury (and previously as Bishop of Durham) would be void ab initio, along with all his actions in that role.

That approach would call into question the validity of the controversial Measure adopted by the General Synod of the Church of England on 17 November 2014, which enabled women to be ordained as bishops, since it required the assent of the Archbishops of both Canterbury and York.

But would this necessarily be the case? Could normal principles of statutory interpretation, applied to canon law rather than Acts of Parliament, produce a different outcome?

The Council of Poitiers, under Pope Paschal II (1099-1118), prohibited the ordination as priests of all persons of illegitimate birth. This was an element in the ’tightening up’ of church discipline after a long period of laxity, which included the enforcement of clerical celibacy for the first time. Indeed, Paschal’s immediate predecessor, Urban II, found it necessary to forbid the ordination of illegitimate sons of priests. The context is not hard to find, as medieval history is fairly littered with examples of the illegitimate sons of kings, noblemen and bishops being appointed to bishoprics and major abbacies. According to the Catholic Encyclopaedia:

This law is not established and laid down as a punishment for the person to whom it is applied. …The clerical state which has the dispensing of the mysteries of God must be beyond reproach. No stain should be upon it, no blame possible. …The danger of the father's incontinence being continued in the life of the son is greatly lessened, for strong indications of purity of life must be given before the door of God's ministry can be opened.

The Church of England took its canon law largely unaltered from the Catholic Church, and the version promulgated in 1604 remained in use until 1964, when the prohibition on ordination of illegitimates was repealed after a review ordered by Archbishop William Temple. The Catholic Church, however, still applies the prohibition, most recently restated by the Council of Trent (1545-63).

Pope Paschal’s prohibition had no immediate effect. Henry II (1154-89) procured the election of his illegitimate son Geoffrey as Bishop of Lincoln in 1173, although he had no interest in the religious life and was not even a priest. After enjoying the revenues for seven years, Geoffrey was given a papal ultimatum to be ordained or resign. Geoffrey resigned. However, his half-brother Richard I (1189-99) obtained both his appointment as Archbishop of York and ordination; after a markedly stormy career as a prelate, Geoffrey went into exile in 1207. Even in the sixteenth century, matters had scarcely improved. Pope Paul III (1534-49) forbore to appoint his illegitimate son, Pier Luigi Farnese, as a Cardinal, but appointed two of his grandsons (both immortalised by Titian) as Cardinals instead.

What is illegitimacy for this purpose? The Decretals of Pope Gregory IX (1227-41) defined five categories, including ‘adulterine’ illegitimates – those born to a mother married to a man other than the father at the time of the birth and/or conception. This covers Archbishop Welby’s situation, but the matter is complicated by the fact that he did not know, and apparently could not have known, about his true paternity until after his elevation to Canterbury. Newspaper interviews he gave at that time referred to a ’messy’ childhood with Gavin Welby, and make it clear that he believed him to be his natural father.

Statutory interpretation, in English law, seeks to establish the intention of Parliament in passing legislation in particular terms. The starting point is the natural and ordinary meaning of the words used, hence frequent judicial resort to dictionaries. However, the judiciary increasingly choose the interpretation which best accords with the purpose underlying the legislation.

What was Pope Paschal’s purpose in prohibiting the ordination of illegitimates? To maintain the dignity of the church and to prevent the abuse of episcopal appointments -  used as a convenient means of giving wealth and power to those of irregular birth. His intention was not to exclude worthy individuals from high religious office on grounds of parental sin. Indeed, as the Catholic Encyclopaedia notes, the impediment to ordination can be removed by the individual taking solemn vows in an approved religious order. Thus a man, by committing himself fully to the religious life, can extinguish the defect of his illegitimacy. 

Clearly, Archbishop Welby is a good and holy man – even The Guardian, at the time of his appointment to Canterbury, declared that he not only had no enemies in a very divided church, but no critics either.  On a purposive interpretation, and recognising that he was ordained priest and then bishop entirely in good faith, the prohibition would not have been applicable. 

Please note: Views expressed are those of the author.

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