The Abolition of the 1662 Regime
When studying ecclesiastical law for the first time, it comes as a surprise to learn that liturgical practices now widespread, even universal, in the Church of England, practices with which the student has been familiar since early childhood, were once considered illegal. The reasons for this are discussed in 2 posts, on the Ornaments Rubric and the Lincoln Judgment, filed below.
Some liturgical practices have been accepted more readily than others. The burning of incense has probably been the most consistently controversial practice. (That and the ringing of a bell during the Prayer of Consecration in the Communion Service.) ‘Smells and bells’ continued to inspire mild resentment until relatively recently, and were identified with a small clique of Anglo-Catholic ritualists.
In the case of Martin v Mackonochie (1868) Law Reports 2 Admiralty and Ecclesiastical 116, Sir Robert Phillimore, the Dean of the Arches, found that incense ‘is not directly ordered in any Prayer Book, canon, injunction, formulary or visitation article of the Church of England since the Reformation’ (p.215). He therefore concluded, with obvious reluctance, that ‘although … it be an ancient, innocent and pleasing custom, I am constrained to pronounce that the use of it … is illegal’.
There is actually nothing Christian or ‘catholic’ about incense. It is an inheritance from pagan antiquity (which may be a good reason for opposing its use in church services). But the aesthetic charms which seduced Sir Robert have evidently prevailed at last. Incense now seems to be uncontroversial and widely used in cathedrals and churches throughout England, by Archbishops and bishops as well as lesser clergy, its use no longer confined to a small clique.
Are the liturgical practices forbidden in Victorian times now legal? Surely they must be, or they would not be so widespread? But it still behoves ecclesiastical lawyers to explain how they are lawful, even if nobody else is interested. General acceptance per se does not prove legality.
The full title of the Book of Common Prayer is ‘The Book of Common Prayer and Administration of the Sacraments, and other Rites and Ceremonies of the Church according to the Use of the Church of England’. In Martin v Mackonochie, Phillimore defined rites as ‘services expressed in words’ and ceremonies as ‘gestures or acts’ (pp.135-6). On this definition the burning of incense is a liturgical action, therefore a ceremony.
The Preface of the Book of the Common Prayer concerning ceremonies is subtitled ‘Why Some be Abolished, and Some Retained‘. This was the basis of the Victorian case law. All ceremonies not retained in the Prayer Book (either expressly or at least by necessary implication) had been abolished, including incense. Their use was therefore illegal.
The authority for the Prayer Book, including the Preface, came from the Act of Uniformity 1662. just as previous versions of the Prayer Book, from 1549 onwards, depended on earlier Acts of Uniformity.
The Act of Uniformity was repealed by the Worship and Doctrine Measure 1974. Schedule 2 of the Measure says of the 1662 Act ‘Extent of Repeal … The whole Act except ss.10 and 15′ (which sections provide that only episcopally ordained clergy may be appointed to benefices and officiate at Holy Communion, and that preachers or ‘lecturers’ must be licensed).
S.1 of the Worship and Doctrine Measure empowers the General Synod ‘to make provision by canon with respect to worship’, and that ‘any such canon shall have effect notwithstanding anything inconsistent therewith … in … the rubrics of the Book of Common Prayer’.
S.5(2) of the 1974 Measure expressly includes the prefaces of the Prayer Book within its definition of ‘rubrics’. The only 1662 rubric which continued to have the force of law after 1974 was that concerning the publication of banns of matrimony (s.1(1)(b)).
Commentaries on ecclesiastical law do not explain the effect of the 1974 Measure with anything like sufficient clarity. The reader may be left with the impression that the 1974 Measure merely amended the 1662 regime, rather than replaced it. The suggestion persists that the rubrics and prefaces of the Book of Common Prayer continue to have the force of law, and that the cases thereon are, or at least may be, still ‘good law’ (i.e current law). (The confused cogitations of Chancellor Bursell QC, the leading commentator on the subject, are discussed in other posts, filed below in this category.)
Yet, subject to the narrow exceptions just mentioned, the 1662 regime of public worship is no more. It has ceased to be. The voluminous case law concerning liturgical ceremonies can therefore no longer be good law. It may be true that the case law forms an important part of the context of the modern post-1974 law, explaining why and how the new law came to be what it is. So it may still be relevant to the study of ecclesiastical law. Nevertheless it is no longer part of the law itself.
The 1974 Regime
The repeal of the 1662 regime could not, of course, have the effect of reviving or reinstating the mediaeval liturgical practices abolished at the Reformation. However, it does mean that liturgical practices not retained or referred to in the Book of Common Prayer are prima facie permitted, no longer forbidden – subject, of course, to the canons made by the General Synod under s.1 of the Worship and Doctrine Measure.
Public worship is now governed principally by canons B1 to B5 of the revised canons (‘the liturgical canons’), which were promulged under the authority of s.1.
Although the 1974 Measure provides greater diversity of worship than the 1662 regime, it is far from being a liturgical free-for-all. Canon B1 is entitled ‘Conformity of Worship‘, and contains the strict injunction that ‘Every minister shall use only the forms of service authorised by this canon’ (B1(2)).
However, there are 2 exceptions to this rule, at canon B5
(1) an officiating minister may introduce ‘variations which are not of substantial importance’ into an official service and
(2) an incumbent (not just any officiating minister) may use or permit ‘forms of service considered suitable by him’, but only ‘on occasions for which no provision is made in [the official services]’.
The 1974 Measure specifically authorised the General Synod to allow these exceptions (s.1(5)). However, the discretionary powers in canon B5 are not unfettered, but subject to the ‘pastoral guidance, advice or directions’ of the bishop (B5(4)).
If an official service contains a rubric or direction expressly permitting the use of incense (or some other ceremony considered illegal under the 1662 regime) then this ceremony will obviously be lawful for use in that service. The legal position will be equally clear if an official service positively provides that incense shall not be used at the service. But what if (as seems to be the case in practice) official forms of service are silent about such ceremonies?
To answer this question it is first necessary to answer another question: what is a ‘form of service’?
The Worship and Doctrine Measure defines a form of service as ‘any order, service, prayer, rite or ceremony’ (s.5(2)). This reference to rites and ceremonies echoes the language of 1662.
The revised canons at first gave no definition of ‘form of service’. Then in 1994, 20 years after the Worship and Doctrine Measure was passed, the liturgical canons were amended. Canon B1(3) now provides that
‘form of service shall be construed as including
(i) the prayers known as collects
(ii) the lessons designated in any Table of Lessons
(iii) any other matter to be used as part of a service
(iv) any Table of Rules for regulating a service
(v) any [approved] Table of Holy Days …’.
Thus the explicit reference to ceremonies in the 1974 Measure does not appear in the liturgical canons, either in canon B1(3) or elsewhere. (The phrase ‘rites and ceremonies’ does appear in canon B3(1), but only as part of the definition of a church building, not in relation to a form of service.)
It is hard to believe that this omission was accidental. There may have been a deliberate policy of silence on the subject, to avoid reviving old disputes, or from fear that the 1974 regime would prove just as ineffectual at regulating ceremonies as its predecessor.
However, although canon B1(3) does not expressly refer to ‘ceremonies’, it does define ‘form of service’ as ‘any other matter to be used as part of a service’. Is this wording broad enough to include ceremonies? Chancellor Bursell considered that the reference to ‘forms of service’ in the liturgical canons does indeed include ceremonies, and that therefore ceremonies are regulated by canons B1 to B5 (cf St John’s, Chopwell (1995) 3 Weekly Law Reports 606, p.611 and p.615).
If Bursell is right about this (and he may be) then prima facie the position will be similar to that which obtained in Victorian times. Ceremonies will be just as illegal now as they were then, unless they are clearly permitted by the rubrics of an official service.
But now, of course, there are the 2 exceptions to the general rule that only official forms of service may be used. The burning of incense and other ceremonies will be lawful if
(1) they can be accommodated within the canon B5 discretions, and
(2) the bishop is prepared to accept them.
However, the language of canon B5 may not be very apt to permit the use of incense and other ritualistic practices. Exception (2) refers to forms of service for special occasions, not to ordinary Sunday and weekday worship. Exception (1) clearly does apply to ordinary worship. However, the word ‘variations’ suggests that the exception concerns the alteration of the liturgical text, its structure and wording. It does not refer to the addition of ceremonies that are not referred to in that text.
Many years before the 1974 Measure was passed, the report The Canon Law of the Church of England (1947) proposed a draft canon which would have permitted ‘deviations (whether by way of addition, omission, alternative use or otherwise)’ from Prayer Book services (p.113), but this proposal was not followed.
In the view of the long and bitter controversy over ritualism, it may be hard to argue that ritualistic practices are ‘not of substantial importance’. Clearly they were very important both to the ritualists and their Low Church opponents. In the 19th century a few ritualist clergy were even prepared to go to prison rather than conform to the 1662 regime. It is also unclear why a ceremony should be permitted if it is ‘not of substantial importance’, but forbidden if it is of substantial importance.
A Policy of Silence
It is therefore argued that, contrary to Bursell’s view, canons B1 to B5 do not attempt any general regulation of liturgical ceremonies. The Worship and Doctrine Measure certainly empowers the General Synod to regulate ceremonies, but the General Synod has (thus far) not chosen to exercise the power.
This is the obvious explanation for the lack of explicit reference to ceremonies in the liturgical canons. The enigmatic reference in canon B1(3) to ‘any other matter to be used as part of a service’ should be understood as a reference to the written texts of services, not to ceremonies.
If it is accepted that canons B1 to B5 do not refer to ceremonies in general, this avoids an overly strict, neo-Victorian interpretation of the principle of liturgical conformity. It also avoids the awkwardness of accommodating ceremonies within the language of the canon B5 exceptions.
The principle of conformity means that
(1) clergy must only use official forms of service, not services devised by themselves, or services ‘borrowed’ from other sources, except for a special occasion for which no official form is provided, and
(2) when using an official form of service, the officiating minister must respect the structure and wording of the text, and not take liberties, except to the limited extent permitted by canon B5(1).
However, the liturgical canons do not forbid, or even restrict, ceremonial actions performed during official services, so long as such actions do not conflict with the structure and text of the service.
There may be an analogy between ceremonies and music. Music is obviously an important part of worship, but it has not been suggested that canons B1 to B5 regulate music. Music is regulated by canon B20. Canon B20 entrusts the control of liturgical music to the officiating minister, though the minister is required to ‘pay due heed’ to the organist or choirmaster, and also to ensure that the music is ‘appropriate … to the solemn act of worship’, and ‘to banish all irreverence’.
It is argued that an officiating minister has a similar control of liturgical ceremonies as of music. It may be anomalous that music is specifically regulated by the revised canons while ceremonies are not. However, music has proved much less controversial in the past than ceremony, and is therefore easier to regulate.
The silence of the revised canons concerning ceremonies is consistent with a sensible policy of tolerance and avoiding controversy. Moreover, the silence does not mean that ceremonies are entirely at the whim of the individual vicar. There are 3 legal restrictions on ceremonies
(1) as mentioned earlier, a ceremony will be unlawful if used during a form of service which positively forbids it. A vicar who performed such a forbidden ceremony, and ignored the bishop’s warning to desist, would be guilty of an ecclesiastical offence of disobedience under the Clergy Discipline Measure 2003, s.8.
(2) a ceremony which conflicts with the Church’s doctrine will be unlawful, even if it is not positively forbidden by official forms of service. The Ecclesiastical Jurisdiction Measure, s.10(1), continues to provide for disciplinary action to be taken in respect of offences against doctrine, though no such action has ever been taken.
(3) all ceremonies are subject to the requirement of reverence. The revised canons repeatedly insist that public worship must be performed ‘reverently’ (canons B10, B11(1), B13(1), B14(1)). Reverence may be a matter of cultural value judgement to some extent. But a vicar who introduced some ceremonial action that was considered so grossly inappropriate (an example will not be attempted) as to contravene the requirement of reverence would also be liable to disciplinary action for disobedience under the Clergy Discipline Measure.