Swine Flu and the Sacrament Act 1547

by Philip Jones

Section 8 of this ancient statute (1 Edw 6, c.1, therefore the very first Act of Parliament passed during the reign of King Edward VI) provides that holy communion shall ‘be hereafter delivered and ministered unto the people … under both the kinds … of bread and wine, except necessity otherwise require’.  The word ‘necessity’ is rendered ‘necessitie’ in the original spelling.

This reference to ‘necessitie’ was suggested as the legal justification for refusing to administer the wine during a ‘swine flu’ pandemic in 2009.  However, it is argued that this is a superficial and flawed interpretation of the 1547 Act.

It is true that the ‘necessitie’ provision remains in force, but it is questionable whether it applies to any form of service now in use.  The first Book of Common Prayer (‘BCP’) was authorised by the Act of Uniformity 1548 (2 & 3 Edw 6, c.1).  The 1547 Act was, of course, enacted the previous year or so.  It could not therefore apply to the BCP, which was not then in use.  It could only apply to the mediaeval liturgies (Sarum, York, Bangor etc).  However, these mediaeval liturgies were all abolished by the 1548 Act.  Thus the ‘necessitie’ provision was not repealed, but it could have no application after 1548, since the liturgies to which it applied were no longer in use.

The 1547 and the 1548 Acts were both repealed under the Catholic Queen Mary I.  The 1547 Act, including s.8, was then revived under Elizabeth I, by the Act of Supremacy 1558 (1 Eliz 1, c.1, the first Elizabethan Act of Parliament).  The BCP was then amended and authorised by the later Act of Uniformity 1558 (1 Eliz 1, c.2, the second Elizabethan Act of Parliament).

Thus the chronology repeated itself.  When revived, the 1547 Act applied to the liturgy favoured by Queen Mary, which was then in use.  That liturgy was abolished by the Elizabethan Act of Uniformity and replaced by the amended BCP, so the ‘necessitie’ provision could, again, have no further application.

It is also unlikely that the ‘necessitie’ provision was intended to apply to a public health scare.  It probably referred only to cases of material want, that is, where there was no wine to be had, or not enough wine for all communicants, or where the communicant was in danger of death and there was no time to obtain wine.

Canon 71 of 1603 provides that no clergyman should officiate in a private house ‘except it be in times of necessity, when any being … so impotent as he cannot go to the Church, or very dangerously sick’.  Canon 71 was, of course, written more than half a century after the 1547 Act.  Also, the ‘necessity’ to which it refers is that of administering holy communion outside the church building.  It does not equate necessity with public health.

People in the 16th and 17th centuries were far more familiar with deadly infections and pandemics than we are, and the BCP rubrics refer to ‘the Plague, Sweat, or such other like contagious times of sickness or disease’.  It is therefore significant that the rubrics make no provision of refusing the wine on such occasions.  Nor did the abortive revised Prayer Book in the 1920s, even though this was compiled just after the influenza pandemic that followed the first world war (and apparently killed more people).

Even if the ‘necessitie’ provision does apply to the BCP and authorised modern liturgies and to public health scares, it certainly does not empower Archbishops and bishops to order communion under one kind only.  S.8 is addressed directly to all the clergy as ministers of the sacrament, not to bishops or Church courts.  If there is a necessity justifying refusal of the communion cup, this is for the officiating clergyman to decide.

Moreover, as a matter of law, necessity is a defence, not a basis of authority.  It is a shield, not a sword.  The courts may accept necessity as a defence to an otherwise illegal act.  However, it cannot order the commission of an illegal act on ground of necessity.  Thus the Church authorities cannot order a clergyman to refuse to administer the wine.  They can, at most, accept the clergyman’s defence of necessity if a disciplinary complaint is made against him. 

It is argued that a clergyman could not rely on the 1547 Act as a defence.  The relevant, post-1548 law is contained in Article 30, and in the regime of public worship established by the Worship and Doctrine Measure 1974.  Article 30 provides that ‘both the parts of the Lord’s sacrament, by Christ’s ordinance and commandment, ought to be ministered to all Christian men alike’.  This wording suggests that communion under both kinds is a matter of divine law, not merely of liturgical discipline, in which case no human authority may dispense from it.  All authorised forms of service are clear that communion should be administered under both kinds.

Canon B5(1) permits individual clergy to ‘make and use variations which are not of substantial importance’ in forms of service, but refusal of the communion cup cannot be considered unimportant, in light of Article 30.  Nor does canon B5 empower bishops to order their clergy to make variations in services.  The wording of canon B5 is clear that minor variations are at the ‘discretion’ of the individual clergyman.

Refusal to administer the wine at holy communion, and any direction by bishops to their clergy not to administer the wine, therefore amounts to misconduct under s.8 of the Clergy Discipline Measure 2003.  Refusal is both a failure to do an act required by ecclesiastical law and neglect of the performance of the duties of office, since administration of the communion cup is a duty of office.  Any purported direction by the bishops to withhold the communion cup is also misconduct, being an act in contravention of ecclesiastical law.

The concern for public health may be understandable.  However, it cannot override the clergy’s duty to administer, and the communicant’s right to receive, communion under both the kinds.  Nor should the 1547 Act be used as a ‘figleaf’ to cover an arbitrary, illegal suspension of this fundamental duty and right.  If the communion cup is really a threat to public health, the proper course is to amend the law.