The only remnant of ecclesiastical jurisdiction over the laity to survive the reforms of the 19th century is the power to exclude, or ‘repel’, a person from holy communion.
This power is now regulated by Canon B16, which provides that
‘if a minister be persuaded that anyone of his cure who presents himself to be a partaker of the Holy Communion ought not to be admitted thereunto by reason of malicious and open contention with his neighbours, or other grave and open sin without repentance, he shall give an account of the same to the bishop … and therein obey his order and direction …’.
Canon B16 makes clear that the bishop alone may order that a person be excluded from the Sacrament. The minister’s function is merely to inform the bishop and obey him.
It is true that Canon B16 confers an emergency power on the minister ‘in case of grave and immediate scandal to the congregation’. However, in these (rather unlikely) circumstances, the minister is required to report all to the bishop ‘within 7 days after at the furthest and therein obey his order and direction’.
Natural justice must be observed. Before making any order the bishop must ‘afford to [the sinner] an opportunity for interview’, to hear his side of the story. If the bishop orders exclusion from the Sacrament the sinner must first be advised of this by the minister and warned ‘that in any wise he presume not to come to the Lord’s Table’.
Canon B16 does not oblige the bishop to order exclusion, now matter how grave the sin. The bishop may confine himself to exhorting or rebuking the sinner. The wording of Canon B16 also suggests that any order excluding a person from the Sacrament must be confined to one church, or at most the area of one benefice. It starts by saying that ‘If a minister be persuaded that anyone of his cure etc’. A person excluded from the Sacrament within that cure may still be admitted to it elsewhere.
The grounds on which a person may be excluded from the Sacrament were examined by Sir Lewis Dibdin, Dean of the Arches, in Banister v Thompson (1908) Probate 362.
This case was decided before Canon B16 was promulged. The power to exclude was then conferred by the rubric of the Book of Common Prayer, which had the statutory authority of the Act of Uniformity 1662, and by the canons of 1603.
The rubric was differently worded from Canon B16. It provided that if any would-be communicant was ‘an open and notorious evil liver, so that the congregation by him is offended … the Curate having knowledge thereof shall warn him and advertise him … not to presume to come to the Lord’s Table until he have openly … repented’. It did not expressly require the minister to refer the matter to the bishop.
Mr Banister was a parishioner of Canon Thompson. He was a widower. He married his deceased wife’s sister in Canada, because such a marriage was illegal in England. Shortly afterwards, English law was changed to permit such marriages and retrospectively to legalise those already contracted.
This did not impress Canon Thompson, who refused to admit Mr Banister and his new wife to holy communion. Mr Banister complained to the ecclesiastical court. Canon Thompson’s defence was that he had a lawful cause of refusal, because Mr Banister’s marriage conflicted with the Church’s teaching on marriage.
The case did indeed expose a tension between the Church’s teaching and the secular law. Canon Thompson was correct that marriage with a deceased wife’s sister is contrary to the Church’s teaching. The secular law acknowledged this by permitting a clergyman to refuse to solemnise such a marriage, and by making clear that it would not protect a clergyman who married his own deceased wife’s sister from ecclesiastical discipline.
The Court of the Arches admitted the difficulty: ‘the recent Act seems to recognise a distinction between the civil and ecclesiastical aspects of marriage, and to alter the law as to the one without purporting to affect the law as to the other … This … creates some difficulty for those who are concerned with its administration’ (p.700).
Nevertheless the Court rejected Mr Thompson’s defence. It ruled that a priest has no inherent, ex officio power to exclude sinners from holy communion ‘in the absence of a judicial sentence of excommunication’ (p.383). Canon B16 now makes this clear.
The priest’s function is limited to exhortation. He ‘has authority to reprove, rebuke, exhort … He is to rebuke sin and to give warning of … ‘unworthy receiving’ of holy communion’ (p.387).
The normal rule is therefore that ‘the responsibility of separating a man from communion is thus left … to the voluntary action of the man himself, whose conscience is to be informed … by the exhortations of the clergy’ (p.383).
However, the Court acknowledged that there was a power in the Church to refuse the Sacrament to an ‘open and notorious evil liver’. It specified the conditions on which this power might be exercised:
(1) ‘By an evil liver is intended a person whose course of life, as distinguished from some particular action, is seen to conflict with the moral code of Christendom’ (p.385). This suggests that one sin alone, however grave, does not warrant exclusion. An objectionable course of conduct or lifestyle is required.
(2) ‘Open and notorious’ means ‘that the facts … of the evil living are so conspicuous and well known as to be indubitable’ (p.386). Mere suspicion is not enough. The wrongdoing must either be admitted by the sinner or be proved by incontrovertible evidence.
(3) ‘The evil living … must cause offence to the public conscience’ (p.387). The sinful conduct must be offensive to the sinner’s fellow communicants. Exclusion from holy communion will therefore be heavily influenced by cultural value judgement. The same sin may justify exclusion in one parish, if it shocks the congregation there, but not in a neighbouring parish, if the congregation is not shocked.
The purpose of exclusion is the public order of the Church, not the reformation of the sinner: ‘the clergyman in repelling any one is not … exercising godly discipline on the person repelled, but he is acting as a public officer for the protection of the whole community’ (p.385).
Applying this law to the facts of Canon Thompson’s case, the Court held that it was ‘impossible to say that [Mr and Mrs Banister], lawfully married … can … be so described [as evil livers] merely because they are living together as man and wife’ (p.390).
It might have added that Canon Thompson had not, apparently, produced any evidence that Mr Banister’s marriage had caused offence to the local congregation, as required by condition (3).
The Court of the Arches’ decision was supported by the secular courts in the subsequent Dibdin litigation, which is discussed elsewhere. The case also clearly influenced the drafting of Canon B16.
However, Canon B16 does not have statutory authority. Following the Worship and Doctrine Measure 1974, the rubric of the Book of Common Prayer no longer has statutory authority either. This raises the question whether the Church’s right to repel from holy communion has survived.
Mr Banister founded his right to receive holy communion on an ancient statute, the Sacrament Act 1547. This Act provides that the minister ‘shall not without lawful cause deny the [Sacrament] to any person that would devoutly and humbly desire it’.
However, the reference in the 1547 Act to a ‘lawful cause’ of refusal clearly implies that persons may lawfully be denied the Sacrament. There is overwhelming historical evidence that the Church has, from the earliest times, claimed and exercised the right exclude grave sinners from holy communion. The Church courts continued to excommunicate offenders, with the support of the secular courts, until the 19th century. Article 33 also affirms the Church’s right.
Refusal of the Sacrament was briefly discussed in Blunt v Park Lane Hotel (1942) 2 All England Reports 187. A litigant in an action for slander sought unsuccessfully to avoid embarrassing questions about her sex life by pleading privilege against self-incrimination.
Lord Goddard (then Lord Justice Goddard) acknowledged that a known adulteress might be liable to be repelled from holy communion, but held that this did not constitute a criminal penalty, and so could not attract the privilege.
The Sacrament Act provides that persons must ‘devoutly and humbly’ desire the Sacrament to qualify for admission. This suggests that a priest is within his rights to refuse the Sacrament to someone who is drunk or disorderly (a fairly common occurrence at Christmas midnight masses) without first requiring the bishop’s decision.