ecclesiasticallaw

Ecclesiastical law

Month: November, 2015

In Persona Christi: Eucharistic Sacrifices

The author of this blog recently attended, for the first time, a service of Mass in the Extraordinary Form, also known as the Tridentine Mass or the Mass of Ages – i.e the traditional Latin Mass.  It was organised by the Latin Mass Society, with the permission of the genial local priest.  ‘Come along out of nostalgia!’, he winkingly encouraged his parishioners when announcing the event.  Almost none did.  There were only about six in the congregation.  The parish priest himself gave the Mass a miss.

As an aesthetic experience, the Mass was disappointing.  It was quickly over.  The sublime Latin of the Roman Canon was inaudible, as the celebrant dropped his voice to a near-whisper, ‘the blessed mutter of the Mass’.  It was only possible to follow the action by the elevation of the Host and the Chalice and the ringing of the bell.

And yet, from the 6th century (or even earlier) until as recently as the 1960s, this was the Mass of the Latin Church.  Untold millions of Catholics down the centuries knew no other.  Compared to it, the new Mass, which was only introduced in 1970, is a mere blink of the eye.  It inspired the Elizabethan martyrs of England and Wales to suffer hideous torture and death (and their fellow countrymen to inflict this on them).

Today the Eucharist is generally regarded as an ecumenical success story.  The Church of England has always agreed with the Catholic Church that the Eucharist is a sacrament ‘ordained of Christ our Lord in the Gospel’ (Article 25), by means of which ‘the Body and Blood of Christ … are verily and indeed taken and received by the faithful’ (Catechism).  The Holy See acknowledged that, of all ecumenical issues, ‘it is in respect of Eucharistic doctrine that the [Anglican-Roman Catholic] Commission were able to achieve the most notable progress towards a consensus’ (Response to Final Report, 1991).

The principal ecumenical difficulty concerns the Eucharist as sacrifice rather than sacrament.  English ecclesiastical law at first seemed to reject any belief in a Eucharistic sacrifice.  Article 31 holds that ‘the sacrifices of Masses … were blasphemous fables, and dangerous deceits’.  All mediaeval references to the priest as sacrificer were removed from the reformed ordination rite.  (This was one reason why Anglican orders were held invalid by Pope Leo XIII in Apostolicae Curae (1896).)

Liturgical practices that suggested sacrifice were also suppressed.  Altars were replaced by ‘convenient and decent tables’ (canon 82 of 1603) placed in the chancel or in the centre of the church.  The east end, where Mass was formerly celebrated, was used to display the Ten Commandments instead.  Unleavened bread was replaced by ‘bread such as is usual to be eaten’.  And, of course, the Eucharist was celebrated in English, not Latin.

The case of Faulkner v Litchfield and Stearn(1845) 163 English Reports 1007 may be the first legally reported ritual case.  The Court of the Arches refused a faculty for a stone altar, described as a ‘table’, on the grounds that it was not a communion table within the meaning of the Prayer Book rubric and the 1603 canon.  In later cases the Privy Council held that Eucharistic vestments, unleavened bread and the eastward position were all unlawful (Hebbert v Purchas(1871) Law Reports 3 Privy Council 605), as were candles on the communion table ‘when [they] were not wanted for the purpose of giving light’ (Martin v Mackonochie (1868) Law Reports 2 Privy Council 365).  The Court of the Arches also held in Mackonochie that the elevation of paten and chalice was unlawful ((1868) 2 Admiralty and Ecclesiastical 116).

However, the Book of Common Prayer retained one phrase from the Latin Mass which describes the Eucharist as a ‘sacrifice of praise and thanksgiving’.  Citing this rather slender authority, the Bishop of Chichester, Eric Kemp, held in St Stephen’s Walbrook (1987) 2 All England Reports 578 that ‘a doctrine of the Eurcharistic sacrifice which is not that of a repetition of the sacrifice of Calvary can lawfully be held in the Church of England …’ (p.583).

The old regime of public worship was finally abolished by the Worship and Doctrine Measure 1974.  Liturgical practices that were formerly unlawful are now permitted, and many have indeed become almost universal.  Canon F2 of the revised canons continues to refer to the ‘holy table’ rather than the ‘altar’, but allows that a communion table may be made of stone, and hence indistinguishable from an altar.  In St Stephen’s Walbrook, the Court of Ecclesiastical Causes Reserved permitted the introduction of a stone altar by Henry Moore.  Bishop Kemp, who was one of the judges, held that ‘an altar falls within the wide bounds of what can reasonably be called a holy table’ (p.581)

Just as the Church of England began to rediscover the Eucharistic sacrifice, so the Catholic Church seemed to move towards the Anglican conception of the Eucharist as a communal celebration, a sacrament of unity and charity rather than a sacrifice.  The new Mass is almost always celebrated in the vernacular, it provides for active participation by the laity and it disdains the eastward position.  In this country, at least, High Mass now usually begins and ends with the singing of rousing Protestant hymns.

The Oxford Dictionary of the Christian Church (3rd ed 1998) noted that the Anglican-Roman Catholic ‘Agreed Statement’ on the Eucharist in 1971 (just after the introduction of the new Mass) ‘relegat[ed] the term transubstantiation to a footnote’.  Canon law also softened the emphasis on sacrifice.  A commentator relates that the original Code of Canon Law 1917 treated the sacrifice and the sacrament of the Eucharist in separate chapters.  The modern Code, promulgated in 1983, presents a more ‘integral’ treatment of the Eucharistic action (The Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.643).  The author of this blog recalls a bright young Anglican theologian asserting, in 1985 or 1986, that the Catholic Church no longer believed in transubstantiation.

However, the 1983 Code is clear that ‘the Eucharistic Sacrifice [is] the memorial of the death and Resurrection of the Lord, in which the Sacrifice of the Cross is for ever perpetuated’ (canon 897).  The Code also provides explicitly that the priest (described as sacerdos in the definitive Latin text), acting in persona Christi, ‘bring[s] into being (conficere valet) the Sacrament of the Eucharist’ (900).

These provisions explain the Catholic Eucharistic Sacrifice.  As Bishop Kemp recognised in the Walbrook case, the Catholic sacrifice is not a repetition of Christ’s sacrifice (as the reformers may have erroneously concluded).  On the contrary, the sacrifice offered by the priest is one and the same as the sacrifice of Christ.  Hence the priest is acting, as the canon says, in persona Christi.

Today the structure and ceremonial of the Eucharist qua sacrament may be almost identical in the Catholic and Anglican Churches.  However, the Eucharistic sacrifices offered by the two Churches remain radically different.

Article 31 is entitled ‘the one oblation of Christ finished upon the Cross’. It asserts that ‘The offering of Christ once made, is that perfect redemption, propitiation and satisfaction for all the sins of the whole world … and there is none other satisfaction for sin, but that alone’. Hence its rejection of ‘the sacrifices of Masses’.  The Prayer Book liturgy follows Article 31 by asserting Christ’s ‘one oblation of himself once offered … a full, perfect and sufficient sacrifice’.

Therefore, while the Catholic sacrifice is one and indivisible,  the Anglican Eucharist is concerned with 2 separate sacrifices:

(1) the once-for-all sacrifice of Christ offered in Palestine 2000 years ago and

(2) the sacrifice of praise and thanksgiving offered by the Church in response to Christ’s sacrifice.

Modern Anglican liturgies may perhaps move (1) and (2) closer together than they are in the Prayer Book, but the distinction between them never disappears.

There is a metaphysical link or bridge between (1) and (2).  This enables those who receive the bread and wine in (2) thereby to receive the Body and Blood of Christ given in (1).  However, this is subject to the recipient’s piety of disposition.  Article 28 affirms that ‘The Body of Christ is given, taken and eaten … only after an heavenly and spiritual manner.  And the mean whereby the Body of Christ is received and eaten … is faith’.  Article 29 makes clear that ‘The wicked, and such as be void of a lively faith, although they do carnally and visibly press [the bread and wine] with their teeth … yet in nowise are they partakers of Christ’.

On this doctrine, the priest cannot act in persona Christi, because Christ’s sacrifice is once for all, finished.  Christ is the only true sacerdos.  So far from acting in persona Christi, the priest acts in persona ecclesiae.  He, or she, offers the Church’s sacrifice to Christ, but not vice versa.

The Anglican Eucharist, freed at last from all the restrictions imposed by the Privy Council, is often richly clothed in elaborate and colourful ritual that was originally inspired by the Catholic Eucharistic sacrifice.  This may serve to obscure the difference between the two.  The folksy informality of some modern Catholic worship may have the same effect, of course.  But the effect is superficial, not a truly ecumenical convergence.

Even though it was reduced to a footnote, the discussion of transubstantiation in the 1971 Agreed Statement is helpful: ‘The term [transubstantiation] should be seen as affirming the fact of Christ’s presence and of the mysterious and radical change which takes place … not … as explaining how the change takes place’.

The doctrine of transubstantiation is often associated with St. Thomas Aquinas and with mediaeval scholastic philosophy.  However, Aquinas and his colleagues were merely offering a rational explanation, or model, of how bread and wine become the Body and Blood of Christ.  They were not defining any religious belief.  As this footnote makes clear, the Catholic Church believes, and has always believed, that transubstantiation does occur, but it does not require acceptance of the Thomist explanation (or any other explanation) of how it occurs.

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Part Time Churches: Closed for Regular Public Worship, but Open for Occasional Public Worship

A recent Church of England report contains some interesting suggestions on the future management of church buildings (Church Buildings Review Group, September 2015).

The canons of 1603 emphasised the sacred character of churches as places of worship.  Canon 88 lays down a general rule that ‘no plays, feasts, banquets, suppers, church-ales, drinkings [etc] or any other profane usage to be kept in the church, chapel or churchyard’.  However, this rule was apparently not absolute.  ‘Profane’ activities could be allowed for ‘good cause’, and with the permission of the incumbent and churchwardens.

Canon F16 of the revised canons cautiously permits plays, concerts, and exhibitions in churches, but only if they ‘are such as befit the House of God, are consonant with sound doctrine, and make for the edifying of the people’.  Permission is subject to any general directions issued by the bishop or other ordinary.  If the minister is in any doubt he must refer the matter to the ordinary ‘and obey his directions therein’.

The Sharing of Church Buildings Act 1969 permits the Church of England to share its places of worship with other Christian denominations, by means of an agreement under seal (s.1(8)).  A sharing agreement may provide for different denominations to hold their own services in the same building.  It may also dispense with the requirement to hold Church of England services on Sunday ‘to such extent as may be necessary’ to enable non-Anglican worship to take place (s.4(1)).

Shared churches must remain in the sole ownership of the Church of England if they are consecrated (which they generally will be) (s.5(1)).  The parochial church council (‘the PCC’) will also remain responsible for the care of a shared parish church, though the sharing agreement may provide for the other denominations to assist or make financial contributions (s.3(4)).

The ecclesiastical courts were initially conservative on the use of places of worship.  In the case of St. John’s, Chelsea (1962) 2 All England Reports 850, the Deputy Chancellor took the extreme (and absurd) position that churches are so sacred that any secular use of consecrated land is forbidden, even if no church is actually built on the land, or likely to be built in the future.

However, as churches grew short of worshippers and of money, the ecclesiastical courts pragmatically permitted income-producing secular use (delicately described as ‘shared use’ or ‘communal use’) that went considerably further than the scope of canon F16 and the Sharing of Church Buildings Act, a complete U-turn from St. John’s, Chelsea.  (See the blogpost ‘Shared Use’, which is filed below.)

Ecclesiastical law facilitated this new liberalism by the Pastoral (Amendment) Measure 2006 (now consolidated as s.68 of the Mission and Pastoral Measure 2011), which enabled the ecclesiastical court to sanction a lease of part of a church, subject to the restriction that the church premises ‘are, taken as a whole, used primarily as a place of worship’ (s.68(3)).

The obvious practical need for extending the secular use of a church is that the church might have to close altogether if the use is not permitted.

Common law made no provision for the closure of a parish church.  It may have regarded churches rather like highways: ‘once a church, always a church’.  However, it was held in Church Estate Charity, Wandsworth (1871) Law Reports 6 Chancery Appeals 296 that ‘at common law, parishioners are not bound to rebuild a church which has fallen down’ (p.299). In St George’s, Birmingham (1960) 1 Weekly Law Reports 1069, the chancellor held that the ecclesiastical court had an ‘ancient jurisdiction’ to permit the demolition of a church, without requiring statutory authority (p.1170). The church in that case was in ‘a very dangerous condition’ and it was ‘quite unrealistic to expect [it] to be preserved or reconstructed’ (p.1171).  So perhaps common law accepted that churches might cease to be used as such on account of destruction or extreme dilapidation.

The Church Building Act 1845 provided that a church might be demolished under the authority of a faculty, but only where a new church was built to replace it (s.1).  The faculty jurisdiction to replace a old church with a new one is now regulated by ss.17 and 18 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (recently amended by the Miscellaneous Provisions Measure 2014, s.13).  A church may be demolished by faculty only if the court is satisfied that another church will be erected on the site or curtilage.  A faculty may permit the demolition of part of a church.  S.18 also confers an emergency power on the chancellor to authorise the demolition of the whole or part of a church without a normal faculty.

Replacement of one building with another on the same site is not the same as closing down a church altogether.  The statutory procedure for making a ‘superfluous’ church redundant seems to have been first introduced by the Union of Benefices Measure 1923 (ss.19-27).  This was followed later in the 20th century by the Pastoral Measures 1968-1983.

Then the Dioceses, Pastoral and Mission Measure 2007 provided that the nasty words ‘redundant’ and ‘redundancy’ should no longer be applied to any dealings with churches. Redundant churches would henceforth be merely ‘closed for regular public worship’.  In a commentary on the 2007 Measure, Ms Ingrid Slaughter carefully explained that the r-word was considered ‘unhelpful’, not to mention ‘unduly negative and not a wholly accurate description of the outcome of the process’ (Ecclesiastical Law Journal, January 2009, pp.6 and 20).

The redundancy / closure procedure is now consolidated in the Mission and Pastoral Measure 2011.  There are 2 stages to the procedure

(1) closure, terminating the building’s constitution as a parish church and

(2) disposal, i.e deciding what is to be done with the church after it has been closed as such.

(1) and (2) both require the authority of a statutory scheme, not a mere faculty.  They may require separate schemes.  Closure of a church is effected by a pastoral church buildings scheme (so called to distinguish it from other pastoral schemes which do not involve closure).  A church buildings scheme may then be followed by a pastoral (church buildings disposal) scheme.

S.42 of the 2011 Measure provides that a declaration of closure may be made in respect of a church or chapel, or part of one, if it is not required, or will cease to be required as a result of the scheme.  (Thus the definition of redundancy remains, even if the terminology does not.)  Closure may be ordered even if the parish is left without a church as a result.

It is possible for both closure and subsequent disposal to be dealt with by a church buildings scheme only, without a separate disposal scheme.  A single scheme will be acceptable if

(1) a new church or licensed place of worship will be provided in the area of the benefice and there are satisfactory proposals for the future of the old building or

(2) the old building will be preserved or put to a suitable use. 

There is also a special expedited procedure in respect of certain long-disused churches (if there are any left).  If the bishop certifies that a church, or part of a church, has not been used for public worship since 1st April 1964, the Church Commissioners may dispose of the building without a scheme, but only if the incumbent, patron and PCC all agree (s.66).

S.66(2) provides that, where a church has already been demolished otherwise than under statutory authority, a disposal scheme may be made in respect of the site.  S.66(2) will apply in situations similar to that in St. John’s, Chelsea (1962), where the church had been destroyed by wartime bombing.

When a church has been closed but not yet disposed of, the legal ownership of the building and the responsibility for its care and maintenance both pass to the diocesan board of finance (s.61).  The parochial liability ceases.  The building also ceases to be subject to the faculty jurisdiction, unless the scheme provides otherwise (s.74(1)).

S.63 prescribes 4 options on a disposal:

(1) the appropriation of the church building to a ‘suitable’ permanent use, as specified in the scheme.

(2) the preservation of the building, if it is sufficiently important.  If preservation is ordered, the church is transferred to the Churches Conservation Trust (s.71(7))

(3) the building may remain vested in the diocesan board of finance for specified uses, and may be let or licensed by the board to a third party

(4) only if none of the above options is feasible is demolition permitted.  Demolition is the last resort.

S.79 of the 2011 Measure usefully provides that a closed church, whether vested in the board or the Trust, may be transferred by agreement to the government or to English Heritage, a secular body.  This will, of course, relieve the Church of the cost of maintaining the building.  A s.79 agreement effectively overrides the disposal process.  Any disposal provision ceases to apply when its subject is acquired by the secular body.  The secular body is not bound by it.

As Ms Slaughter implied, an ex-parish church can still be used for some sort of worship

The Churches Conservation Trust may permit the use of a preserved church for worship as authorised by the bishop (s.57(9)).  This may include non-Anglican Christian worship.  Likewise the diocesan board of finance may permit such worship ‘occasionally’ in its church buildings (s.61(2)).  Such worship is always a permissible use to which a closed church may be appropriated (s.63(13)).  Also, a closed church may be reopened and restored to use as a place of worship by a subsequent church buildings scheme (s.70).  This is possible even if the church has been transferred under s.79, but only if the secular body consents.

The recent report seems to propose, or at least hint at, a kind of spectrum of use of church buildings. A church at one end of the spectrum will remain in full and exclusive use as a place of worship. A church at the other end will be completely given over to secular use.  Churches in between will be subject to shared use, which may be predominantly religious or predominantly secular. A church might become a ‘festival church’, its religious use being limited to occasional worship on important festivals (para 147).

To this end, the report recommends (para 133) an amendment of the Parochial Church Councils (Powers) Measure 1956, so that the care of open churches should be legally transferable from the PCC to another body, whether secular or ecclesiastical, that is willing to assume the responsibility, while retaining the incumbent’s freehold.  A local community trust or parish council, or some national body might be an appropriate body to look after the parish church.  Or the Churches Conservation Trust might do so, even though the church has not been closed and is still a parish church.

Our account suggests that this model of church use is not particularly radical, but merely continues the trend of modern ecclesiastical law.