Lawful Authority and the Jus Liturgicum

by Philip Jones

Mr Justice Vaisey, ‘Lawful Authority’, a memorandum appended to a Church of England report The Canon Law of the Church of England (SPCK, London, 1947, pp.215-222)

This is a discussion of the famous ‘exceptive words’ introduced into the Declaration of Assent by the Clerical Subscription Act 1865.  The words appeared in a declaration required of clergy that

‘in public prayer and administration of the sacraments I will use the form in the [Book of Common Prayer] and none other, except so far as shall be ordered by lawful authority‘.

The original Declaration did not contain any exceptive words.  It bound the clergy to use only the forms contained in the Prayer Book and none other.  The exceptive words therefore apparently qualified the original Declaration.

Vaisey’s principal conclusions on the exceptive words were twofold:

(1) ‘the three words, ‘ordered’, ‘lawful’ and ‘authority’, both separately and as … conjoined, could hardly be more ambiguous’ (p.218), and that ‘precise definition of lawful authority is impossible’ (p.221) and

(2) consequent on (1), the ambiguity and imprecision of the exceptive words had the effect of altering and relaxing the regulation of public worship to some extent.

Specifically, the words authorised or recognised ‘deviations allowed by such episcopal authority as can be brought within the Bishop’s power to ‘appease diversity and resolve doubts’ referred to in the Book of Common Prayer (p.219).  They also allowed the ‘familiar and generally accepted abridgements [which] must be within the discretion of the parish priest … for matters of minor moment’ (p.220).

Vaisey J’s analysis was a brave attempt to reconcile the law and practice of public worship.  The judgments of the Privy Council in the 19th century and Parliament’s rejection of a revised Prayer Book in the 1920s had rendered the law of public worship unenforceable.  The modern law was not finally settled until the Worship and Doctrine Measure 1974.  Thus the tension between liturgy and law was still acute at the time Vaisey wrote. 

Vaisey sought to resolve the impasse by arguing that bishops and other Church authorities possessed an inherent power, known as the jus liturgicum, to regulate public worship, and that this power was consistent with the Act of Uniformity 1662.  To support this thesis he cited

(1) the exceptive words in the 1865 Act and

(2) the reference in the Prayer Book itself to the bishop’s authority to resolve doubts.  

Yet the thesis is questionable.  The phrase ‘lawful authority’ may be a tautology (authority is by definition lawful), but that does not render it meaningless.  A complete, exhaustive definition of lawful authority may well be impossible, but it is far from impossible to decide whether a particular liturgical practice or form of service has lawful authority or not.

It should also be remembered that Vaisey J was writing some 80 years after the exceptive words became law.  It is surprising that the 19th century courts had no apparent difficulty with the words, if their meaning was as difficult as he thought.  

As Vaisey acknowledged, there are other interpretations of the exceptive words.  The words refer to ‘lawful authority’, not ‘the lawful authority’, thus implying that there may be more than one authority capable of regulating public worship.  The Act of Uniformity 1662 provided that, in the prayers for the Royal Family, the relevant names could be altered ‘according to the direction of lawful authority’ (s.21, now repealed).  That authority was the Monarch in Council rather than the bishops.  The exceptive words can also be interpreted as applying to any authority which might be constituted in the future.  However, the exceptive words did not per se constitute a new authority.

The passage in the Book of Common Prayer cited by Vaisey provided that

‘for the resolution of all doubts, concerning … how to understand, do and execute the things contained in this Book … the Bishop … by his discretion shall take order for the quieting and appeasing of the same: so that the same order be not contrary to anything contained in this Book.  And if the Bishop … be in doubt, then he may send for the resolution thereof to the Archbishop’ (‘Concerning the Service of the Church’, emphasis supplied).

This power of the Bishop (and Archbishop) is quasi-judicial in character.  The Bishop is required to interpret the contents of the Prayer Book where necessary, and thereby resolve any doubts or disputes over their meaning.  However, it is clearly stated that the Bishop’s interpretation must not contradict the provisions of the Prayer Book.

The jus liturgicum suggested by Vaisey, by contrast, is quasi-legislative in character.  It suggests a power in the bishop, or even the individual clergyman, to relax or modify the prescriptions of the Prayer Book.

The suggestion that bishops, let alone clergy, possess some inherent power to regulate public worship was categorically rejected by the Privy Council in the 19th century cases.  Nor did it impress the celebrated liturgical scholar and Anglican, Dom Gregory Dix, writing almost contemporaneously with Vaisey:

‘We have heard a lot in England of late years of the bishop’s jus liturgicum.  The term is entirely unknown to the canon law or to any writer in any country before the later 19th century, when it comes into use among a certain group of Anglican ecclesiologists, who invented it as a means of lifting the dead hand of Parliamentary statutes off Anglican worship’ (The Shape of the Liturgy (1945), p.55).