Ecclesiastical law

Category: Liturgy and Law

What did the Ornaments Rubric Mean?

‘Provided always … that such ornaments of [1] a church, and [2] the ministers thereof,

shall be retained and be in use as was [in use] in this Church of England by the authority of Parliament in [1549] until other order shall be taken by the authority of the Queen’s Majesty or of the Metropolitan of this realm [i.e the Archbishop of Canterbury] …’ (Act of Uniformity 1558)

‘the Minister, at the time of the Communion, and at all other times in his ministration, shall use ornaments in the church, as were in use by the authority of Parliament in [1549] according to the Act of Parliament [of 1558, above]’ (1558 rubric)

‘such ornaments of the church, and of the ministers thereof, at all times of their ministration, shall be retained, and be in use, as were in the Church of England, by the authority of Parliament [in 1549]’ (1662 rubric).

This question is phrased in the past tense advisedly.  The Ornaments Rubric no longer means anything to the English law of public worship.  The statutory authority that the Prayer Book rubrics once enjoyed was abolished by the Worship and Doctrine Measure 1974, except in respect of banns of marriage.  This is discussed in a separate post, filed below.

However, the Ornaments Rubric was discussed at length by the Court of the Arches and by the Privy Council in two celebrated 19th century ritual cases

(1) Liddell v Westerton (1857) and

(2) Elphinstone v Purchas, later Hebbert v Purchas (1870-1)

Liddell concerned the ornaments of the church.  A faculty was sought for the removal of various items associated with ritualism, such as cross and lights on the altar and colourful altar coverings.

Purchas concerned the ornaments of the minister.  The Rev Mr Purchas was charged with ‘wearing … whilst officiating in the communion service … a vestment called a chasuble … [and] a certain vestment called an alb, instead of a surplice’ (p.167), i.e the catholic eucharistic vestments.  Mr Elphinstone, the original prosecutor, died before the case reached the Privy Council, so Mr Hebbert had to be substituted.  (Death was not allowed to frustrate the continued pursuit of Mr Purchas, such was the gravity of the case.)

The erudite Sir Robert Phillimore, Dean of the Arches and original author of the famous commentary on ecclesiastical law, had no difficulty with the Ornaments Rubric: ‘the construction of this Rubric according to general principles of legal interpretation … appear[s] to me as plain and simple as any which is to be found in any statutory enactment’ (Phillimore’s Ecclesiastical Judgments, p.162).  He saw the irony of the Rubric being used to oppose ritualism when its original purpose was to protect the ornaments of church and minister from iconoclastic radical protestants who wished to get rid of them.

Phillimore also understood that the Rubric is expressed in mandatory, not prohibitive, terms.  It provides that the identified ornaments must be used.  It does not provide that only those ornaments may be used and no other.

Unfortunately the Privy Council interpreted the Rubric differently.  It observed in Liddell that, upon the accession of Queen Elizabeth I in 1558, ‘a great controversy arose between the more violent and the more moderate reformers as to the Church service which should be re-established’ (Six Privy Council Judgments (1872) ed W.G Brooke, p.52).  This controversy dated back to the reign of the Queen’s half-brother, the boy King Edward VI.  During his short reign, two Prayer Books (or two different versions of the same Prayer Book) were published.  The first Prayer Book, in 1549, was conservative and ‘catholic’ in character.  As the political balance of power shifted in favour of the radical reformers, the second Prayer Book, published in 1552, was more avowedly protestant.

The Elizabethan settlement of 1558 was therefore a compromise between the two parties.  Elizabethan public worship would use the forms of service in the ‘protestant’ 1552 Book, but retain the ornaments mentioned in the ‘catholic’ 1549 Book.  Protestant services with catholic ornaments.  That was the deal.

The Privy Council reasoned that ‘the word ‘ornaments’ applies, and in this Rubric [i.e the Ornaments Rubric] is confined to, those articles the use of which … is [positively] prescribed by [the 1549 Book]’ (p.52).  Ornaments not prescribed by the 1549 Book could therefore not be permitted.

Thus the apparent conclusion was that the Elizabethan compromise still bound the Church of England, and the courts, 300 years later.  If extra ornaments were permitted, this would be a breach of the compromise.  The violent reformers would be short-changed.

The Privy Council was careful to state that the phrase ‘ornaments of the church’ did not refer to all physical items within Victorian churches.  The Ornaments Rubric did not mean that all articles not expressly referred to in the 1549 Book are illegal.  The ‘ornaments’ referred to in the Rubric comprised ‘All the several articles used in the performance of the services and rites of the Church’ (p.51).  Items used to decorate the church rather than to perform liturgical actions were outside the scope of the Rubric, and so might be permitted.  Therefore ‘crosses … when used as mere emblems of the Christian faith, and not as objects of superstitious reverence … may still lawfully be erected as architectural decorations …’, even though not referred to in the 1549 Book (p.65).

So much for the ornaments of the church.  In Purchas, the Privy Council proceeded to examine the ornaments of the minister.

Prima facie the ritualists were on stronger ground here.  The 1549 Book provided that, at the holy communion, ‘commonly called the masse’, the officiating priest ‘shall put upon him … a white alb … with a [eucharistic] vestment or cope’.  Any clergy assisting him were required to wear ‘albs with tunicles’.

The Act of 1558, as quoted above, suggests that the Ornaments Rubric was intended to be a temporary provision only.  It was to apply only ‘until other order shall be taken’.  Yet the 1662 rubric, which was authorized over 100 years later, is almost exactly the same wording as the 1558 rubric.  This may suggest that no such ‘other order’ was ever taken, and that the compromise of 1558 was revived in 1662 without alteration.

This was Phillimore’s view.  Certain ‘Advertisements’ concerning public worship were published in the 1560s, but Phillimore held that ‘the Queen never gave her official or legal sanction to these’ (p.169).  The canons of 1603 make no reference to eucharistic vestments, and provide that ‘Every minister saying the public prayers, or ministering the sacraments [including holy communion] or other rites of the Church, shall wear a decent and comely surplice’ (canon 58).  At holy communion in cathedrals, likewise, the officiating clergyman was required to wear ‘a decent cope’, but again no eucharistic vestments (canon 24).

However, as Phillimore pointed out, the canons of 1603 were promulgated under the Submission of the Clergy Act 1533, a quite different statute from the 1558 Act of Uniformity.  Moreover, they did not have the sanction of the Archbishop of Canterbury, as the 1558 Act required, because the See of Canterbury was vacant at the time they were promulgated.  The Bishop of London had presided instead of the Archbishop.

Thus, while the canons of 1603 might permit clergy to officiate at holy communion in a surplice, they could not forbid clergy from wearing eucharistic vestments.  The canons of 1603 could not replace or override the 1558 Act.

Once again, the Privy Council disagreed.  It held that the Advertisements of the 1560s did have royal authority, and so did constitute ‘other order’ under the 1558 Act.  Moreover, they were enforced by royal commissioners.  The practical effect of this was ‘that within a few years after the Advertisements were issued the [eucharistic] vestments … entirely disappeared’ (p.170).  There was no attempt to revive them before 1662.  The canons of 1603 ‘ordered surplice only to be used in parish churches’ (p.176).

Although the wording of the 1662 rubric may seem almost identical to the 1558 wording, the Privy Council detected a critical difference.  The 1558 rubric contains a specific reference to holy communion.  It distinguishes between the ornaments of the minister ‘at the time of the communion, and at all other times’.  The 1662 rubric, by contrast, makes no separate reference to holy communion.

This means, or so the Privy Council reasoned, that in 1558 clergy were expected to wear different ‘ornaments’ when officiating at holy communion and when officiating at other acts of worship.  In 1662, by contrast, clergy were expected to wear the same vestments (i.e surplice only, or surplice and cope) at all acts of worship, including holy communion.

The Privy Council therefore held, with ruthless logic, that ‘If the minister is ordered to wear a surplice at all times of his ministration, he cannot wear an alb and tunicle … if he is celebrating holy communion in a chasuble, he cannot celebrate in a surplice’ (pp.178-9).

Chancellor Bursell described this interpretation of the Ornaments Rubric as ‘rigorist’.  It was unjust to Mr Purchas.  It may well be true that Eucharistic vestments were officially discouraged and fell into disuse in Elizabethan times, and that there was no wish to revive them in 1662.  It may also be true that the 1662 rubric envisages that clergy will officiate at holy communion in surplices.

However, the 1662 rubric does not forbid clergy from wearing eucharistic vestments.  The Rev Mr Purchas had been charged with an ecclesiastical offence.  In deciding his case, the Privy Council was exercising a disciplinary, indeed a ‘criminal’, jurisdiction.  He should not have been convicted of using Eucharistic vestments without a clearly worded rule positively forbidding such use.  The wording of the 1662 rubric is not nearly clear enough.

The Privy Council’s treatment of the canons of 1603 was also anachronistic.  The canons did not positively forbid Eucharistic vestments, any more than the rubric.  On their wording they do not order surplice only.  They were not directed against 19th century ritualists, but to upholding minimum liturgical standards against a radical Protestantism that wished to do away with all ecclesiastical vestments.

While the original Elizabethan provision for ornaments may have effected a stable compromise, the Privy Council’s interpretation of the Ornaments Rubric merely resulted in anarchy.  Its judgments were ignored by the Church of England, and the study and reputation of ecclesiastical law never recovered.


The Spirit of the Liturgy

This post, like two others written recently, is not directly concerned with ecclesiastical law but with a subject that is close to it.  It is mostly an appreciation of a commentary with the above title by Cardinal Joseph Ratzinger (later, of course, Pope Benedict XVI, now Pope Emeritus).  The English translation was published in 2000 by Ignatius Press.  Ratzinger chose the title in tribute to a book of the same title published in 1918 by Romano Guardini, another German Catholic theologian.  The concluding comments on the Church of England and the Anglican Communion do not represent anything stated in Ratzinger’s work, but were inspired by reading it.

Liturgy and Land

The need and the duty to worship God require first of all a sacred space.  Moses’ quest for the Promised Land was a quest for space in which to worship God (pp.15-17).

Christian liturgy, like Jewish liturgy and pagan cults, is based on sacrifice.  Thus the sacred space, the place of worship, was never a mere meeting place or school for religious instruction but a ‘cultic space reserved for the Deity’ (p.62).

However, for a long time before Christ, there had been a growing dissatisfaction among Jews with the sacrificial system centred on the Temple.  The Qumran community and many hellenised Jews rejected this system (p.45).  The Church proclaimed Christ as the new Temple, and the Eucharist as the sacrifice and gift of Christ.

Liturgy in relation to Time and Space

Christianity, like Judaism, is primarily a historical religion, concerned with the relationship between God and man in history (p.24).  This is in contrast to more primitive religions which concentrate on the cosmos (sun, moon, weather-events etc).

Yet Judaism and Christianity also have a cosmic dimension.  The Redeemer (historical) is also the Creator (cosmic).  There must therefore be a relationship between liturgy and creation, as well as between liturgy and history.

The Bible relates that God created the world in six days and rested on the seventh.  Hence the seventh day became the day of worship (p.25).  Therefore worship begins when creation is complete.  The giving of the ceremonial law to Moses and the Tent of Meeting make the connection between creation and liturgy (pp.26-7).  Liturgy is the divinisation, or surrender, of creation to God.  The divinisation of creation has been studied by theologians throughout the Church’s history.  The late Teilhard de Chardin (1881-1955) is the most distinguished modern contributor to this debate (pp.28-9).

Christian liturgy is also cosmically oriented.  Christian churches have from earliest times been built facing east, the rising sun being the symbol of the Risen Christ, just as synagogues were oriented towards the Temple (pp.64, 68).

The nativity of St. John the Baptist is celebrated in midsummer (on 24th June, six months before Christmas), when the days begin to shorten, while the nativity of Christ is celebrated as the days begin to lengthen again (p.109).  The date of Easter is the Sunday after the first full moon of spring.  The date thus reconciles the solar and lunar calendars (p.100).

The date of Easter has led to the modern difficulty that Easter in the southern hemisphere occurs in autumn, not spring.  This demonstrates that the historical aspect of liturgy takes priority over the cosmic (p.104).

In modern times the cosmic orientation of the liturgy, especially the eastward position, has been undermined by an abstract universalism.  However, while it is true that God is accessible everywhere, His universality is known to mankind only through Revelation, which is a particular, not a universal, event.

Neglect of the eastward position, like a fixed date for Easter, may lead to neglect of the uniqueness of Revelation.  It brings other dangers too.  If the priest faces the people, he may appear to be more important than God.  The liturgy is reduced to a mere communal celebration or get-together, rather than a sacrifice (pp.77, 80).

Art and Music

The use of painting and sculpture in church was attacked by iconoclasts and Protestant reformers as an offence against the Commandment forbidding any ‘graven image’. However, the Old Testament records that Moses was commanded to make two cherubim of gold to cover the Ark of the Covenant. Early icons depicted the Resurrection against the backdrop of the Ark (pp.115-6).

The relationship between art and worship has never been very clear. The second Council of Nicaea (which met in 787) affirmed the use of sacred art, and repudiated iconoclasm, but the implications of this affirmation have yet to be fully worked out (p.134).

The author argues that a distinction must be drawn betweeen sacred art, which is directly related to the liturgy, and religious-themed art in general (p.134). A similar distinction must be drawn in liturgical music (p.147).

Music, like art, has a biblical basis (for example, in the Song of Songs), and the word sing is one of the most commonly used words in the Bible (p.36). While art generally serves the historical aspect of liturgy, music serves its cosmic aspect (pp.151-2).

Liturgy and Communion

Liturgy is an entire way of life, not merely a form of worship.  The Ten Commandments illustrate this point (p.18).  It is the liturgy that makes the worshippers into one people, a comm-union.  Even secular societies have unifying rituals of some sort (p.21).

Liturgical rites are Apostolic, because they originated in the places where the Apostles preached.  They are therefore ‘forms of the Apostolic Tradition’ (p.164).  Their Apostolic origin reinforces the point that, although Christianity is universal, it still has a particular historical origin, and ‘can never be separated from the soil of sacred events’.  The rites originated in Alexandria, Antioch and Rome (p.163).  The Roman rite was influenced by the Alexandrian rite.  There was also a Byzantine rite, which was derived from the Antiochene liturgy.  The Antiochene liturgy had a profound influence on all subsequent liturgical practice (p.161).  (It was at Antioch, of course, that Jesus’ followers were first called Christians.)

Being of Apostolic origin, liturgical rites are of universal (hence Catholic) application, embracing different cultures and languages and drawing them all into a relationship of communion.  Elements of popular piety may become grafted onto a Catholic rite, and hence become part of the rite’s organic development.  There is inevitably a certain tension here.  A rite must be sensitive to the local culture while remaining Apostolic, one and universal.

Liturgy and Scripture

Liturgical rites, like the Scriptures, are the work of human authors.  Liturgy ‘contains an essential exposition of the biblical legacy’ (p.167), though academic study and the Magisterium of the Church also play a vital role in this work of exposition.  The seat of Moses, or shrine of sacred books in the synagogue, was replaced in Christian churches by the seat or ‘teaching chair’ of the bishop (p.72).

The foregoing account indicates that the Catholic understanding of liturgy is radically different from the Protestant.  For the Catholic Church, the liturgy is a link to the Apostles and, through the Apostles, to Christ.  This link would still exist even if there was no Canon of Scripture (just as the Magisterium would still link the Church to Christ without the Bible).  In Protestantism, by contrast, the Church is entirely dependent on the Bible for Word and Sacrament.  Liturgy therefore cannot link the Church to Christ and the Apostles, because it is not part of the Bible.  For the same reason liturgy cannot be a source of communion between different particular Churches, even if a number of Churches use the same liturgy.

At the Reformation many Protestant Churches, including the Church of Scotland, even abolished liturgy altogether, because it is unscriptural.  With the rejection of Catholic liturgical tradition, the Bible became the sole basis of Protestant Christianity.  The consequence of this principle of sola scriptura was that Protestant faith was at the mercy of modern biblical exegesis, with no liturgical tradition to support it.  Its only defence was to take refuge in a simple-minded fundamentalism.  By contrast, Apostolic liturgy, and the Magisterium, protect the Catholic faith against the errors both of modern exegesis and of biblical fundamentalism.

The Church of England, of course, did not abolish liturgy at the Reformation.  On the contrary, the Book of Common Prayer retains many elements of the mediaeval Catholic liturgy, translated into sublime English.  The undoubted beauty and dignity of the Prayer Book liturgy, and its partial resemblance to Catholic liturgy, may well serve to obscure the Protestant principle of sola scriptura.  However, the 39 Articles are clear that the Church’s true identity depends on Scripture, and not liturgy.  Liturgy is only permissible to the extent that it is agreeable to Scripture, and it is based only on human authority and culture.

Article 25 makes the dichotomy between the ‘biblical’ sacraments and the ‘liturgical’ sacraments.  Baptism and the Eucharist (‘the Lord’s Supper’) are the only two sacraments ‘ordained of Christ our Lord in the Gospel’.  The other five ‘commonly called sacraments’ are indeed found in the liturgy, but they ‘are not to be counted for sacraments of the Gospel … for they have not any visible sign or ceremony ordained of God’.  The Eucharist is understood only by reference to what the Bible says about it, not what the liturgy says about it.

Article 34 is the principal authority on the place of liturgy in the Church: ‘traditions and ceremonies … at all times have been divers, and may be changed according to the diversities of countries, times, and men’s manners … Every particular or national Church hath authority to ordain, change and abolish, ceremonies or rites of the Church ordained only by man’s authority’.

Modern Anglican governance follows Article 34.  The ‘Lambeth Quadrilateral’ of 1888 did not require acceptance of the Book of Common Prayer (or of any other liturgy) as a condition of Church unity.  The Worship and Doctrine Measure 1974, and the canons promulgated thereunder, provide only that new forms of service should be ‘neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter’ (s.4(1)).  No mention of the Apostles anywhere.

The liturgical freedom conferred by the 1974 Measure, and its equivalents in other Anglican Churches, has led to a multiplicity of modern Anglican liturgies, and to the relative marginalization of the Book of Common Prayer.  A commentary on the Prayer Book, written by an Anglican bishop, acknowledges that uniformity of worship has given way to a mere ‘family resemblance’ between the different liturgies: see The Oxford Guide to the Book of Common Prayer (OUP 2006), eds Hefling and Shattuck at p.238, per Colin Buchanan.

Lawful Authority and the Jus Liturgicum

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).

Forms of Service

The Worship and Doctrine Measure 1974 defines a ‘form of service’ as ‘any order, service, prayer, rite or ceremony whatsoever … including the catechism’ (s.5(2)).  On this definition, even a single prayer may constitute a form of service all by itself.  Canon B1(3) gives an even broader definition.  It provides that a form of service includes ‘any other matter to be used as part of a service’.  Thus the term ‘form of service’ may be applied to any component part of a service.

However, forms of service should not be confused with merely secular acts that are accompanied by prayer.  The saying of ‘grace’ before and after a meal does not turn the meal into an act of worship.

In an essay ‘Consecration, Ius Liturgicum and the Canons’ for English Canon Law (eds Doe, Hill and Ombres, University of Wales, Cardiff, 1998) Chancellor Rupert Bursell noted that the Book of Common Prayer makes no reference to the consecration of churches, yet such consecrations continued to be performed after the Reformation and after the Act of Uniformity 1662.

Bursell suggested a number of possible explanations for this apparent anomaly.  It may be that all ‘services of consecration’ were illegal because they were not prescribed by the Prayer Book.  However, this possibility is ‘unlikely in the light of the regular use of such services’ (p.73).

Another explanation is that the Prayer Book, as its full title implies, is concerned only with ‘common’ prayer, that is, with the usual, routine worship of the Church.  The Act of Uniformity ‘did not embrace services that were of an infrequent and unusual type’ (p.75).  On this view, consecration would be lawful if performed on the authority of the bishop. 

Yet another possible explanation is that consecration was outside the scope of the Prayer Book because it was not performed in a place of public worship.  A church is not a place of public worship until it has been consecrated.  The act of consecration is therefore necessarily performed only in an unconsecrated building or land. For this reason it could not be subject to the 1662 Act.

These speculations all rest on the assumption that the consecration of land or buildings is indeed a form of service, an act of worship.  However, it is arguable that consecration is not a religious service at all but a juridical act.  This view is supported by Lord Chief Justice Coleridge in the case of Wood v Burial Board of Headingley (1892) 1 Queen’s Bench 713:

‘No doubt a practice has grown up of accompanying the ceremony of consecration with certain suitable and seemly prayers: but that is not the consecration itself.  Consecration is effected by the decree of the competent ecclesiastical court … signed by the bishop, setting aside the ground or building in sacros usus.  That is what consecrates the legal act of consecration’ (p.725).

If consecration is merely a juridical act this would explain why it is not mentioned in the Prayer Book.  The Prayer Book makes no provision for the rites of induction of a new incumbent or the installation of a new bishop.  The reason is that induction and installation, like consecration, are merely juridical acts, aspects of ecclesiastical conveyancing, whereby incumbents and bishops are put into possession of their offices and churches.

Marson v Unmack (1923) Probate 163 helps clarify the definition of a form of service.  The Court of the Arches there observed that

‘A collection made during Mattins or Evensong … is not provided for in the Prayer Book.  It is an incident occurring during a service or interposed between different portions of it, but it is no more part of the service than a voluntary played on the organ … or lighting the gas while the service is in progress: such a collection is an interlude entirely at the option of the minister and has its sole justification in the sanction of long custom’ (pp.167-8).

Thus there is a distinction between form of service per se, and secular matters, such as the taking of a collection, which may occur during the course of the service.

The distinction is supported by s.5 of the Parish Notices Act 1837 (now repealed), which confirmed that the publication of banns of marriage and notices of future services, as well as publication of anything ‘enjoined by the Queen or by the ordinary of the place during the time of divine service’ are lawful, even though these matters are not part of the service.

It must be acknowledged that, in Cope v Barber (1872) Law Reports 7 Common Pleas 393, a secular court reached the surprising conclusion that ‘The giving of alms is as much a part of Divine Service as adoration or prayer’ because the service included the offertory prayer ‘We humbly beseech Thee … to accept our alms and oblations’ (pp.400-1).  Does this mean that a prayer of thanksgiving for the harvest makes the harvest a part of divine service?!

However, even if this dictum is accepted, it does not deny the point made in Marson v Unmack and in the 1837 Act.  Cope v Barber concerned a collection at the communion service, Marson was concerned with a service which did not include an offertory prayer.  Cope does not deny that acts may take place during a service which are not part of the service itself.

Liturgy and the Faculty Jurisdiction

St. Thomas, Pennywell (1995) Family 50

Public worship in the Church of England is now regulated by the Worship and Doctrine Measure 1974 and the canons promulged under the authority of that Measure.  Church courts have no jurisdiction under the 1974 regime.  They have no say in the authorisation of forms of service, or in the regulation of their use. 

However, the permission of the Church courts is still required for most dealings with the physical items used in connection with worship, and with the buildings in which public worship takes place, under the faculty jurisdiction.  The 1974 regime makes no reference to the faculty jurisdiction.  Thus the relationship between the 1974 regime and the faculty jurisdiction may be anomalous.

The apparent anomaly confused the chancellor who decided St. John’s Chopwell (1995) 3 Weekly Law Reports 606, a faculty case.  The chancellor held that ‘the final arbiter of the legality of any … variation or service used pursuant to canon B5 … is the ecclesiastical court’ (p.61).  This may be true if a clergyman is subject to disciplinary proceedings for contravening canon B5, but it is not true of faculty proceedings.

The same chancellor also decided the Pennywell case.  A faculty was sought for the introduction of a ‘sacrament house’ in which to reserve the Sacrament.  Yet the chancellor seemed to forget that he was being asked to approve a piece of furniture, and not a form of service.

The chancellor noted that the holy communion service in the 1662 Prayer Book (‘the BCP’) requires immediate consumption of the consecrated elements (which suggests that a sacrament house would be superfluous), but the modern form of service does not (which suggests that there may be some use for a sacrament house). 

However, the chancellor concluded that ‘if immediate consumption [of the consecrated elements] is not required … in [the modern] rite, it cannot be a matter of ‘substantial importance’ in [the BCP rite]’ (p.67).  Reservation of the Sacrament after the service was therefore not a matter of ‘substantial importance’ and so was within the discretion conferred by canon B5(1).  The sacrament house was allowed.

This reasoning is deeply confused.  The chancellor permitted the sacrament house, not because it would be useful, but because its use was unimportant.  It seems strange to permit a sacrament house on the ground that reservation of the Sacrament is unimportant.  If reservation is unimportant that ought to be a reason for refusing a sacrament house, not permitting one.

The chancellor also misinterpreted canon B5(1).  This provides that ‘The minister who is to conduct the service may in his discretion make and use variations which are not of substantial importance in any [authorised] form of service …’. 

Thus Canon B5(1) is addressed to the clergy who officiate at services, not to the ecclesiastical court which has no responsibility for services.  Moreover, canon B5(1) refers to unimportant variations of a particular form of service.  The chancellor was discussing the difference or contrast between two different forms of service.

However, as mentioned, the chancellor’s principal confusion was treating the sacrament house as if it was a form of service.  Obviously it was not.  Canon B5(1) was therefore not relevant.  The 1974 regime of public worship would only be relevant if it laid down a clear rule that reservation of the Sacrament was compulsory, permitted or forbidden.  However, no such rule is to be found in the 1974 Measure and canons.

There is, of course, a connection between public worship and the buildings in which it takes place.  If a sacrament house or other item would facilitate the performance of worship, that is a reason to permit it.  It it would impede worship, that is a reason to refuse it.  But this is a question of fact, not law.

It is important not to confuse worship and doctrine.  Reservation of the Sacrament is a liturgical practice, not a religious doctrine.  However, there is a connection between the liturgical practice of reservation and the Church’s doctrine of the Eucharist. 

The question therefore remains whether the Church’s doctrine forbids reservation, or whether the practice of reservation undermines or embarrasses the doctrine in some way.  If it does, a sacrament house ought not to be permitted.  However, this question engages the law of doctrine, not the law of worship.

The 1974 Measure provides that the Church’s doctrine ‘is grounded in the holy Scriptures, and in such teachings of the ancient fathers and Councils of the Church as are agreeable to the said Scriptures.  In particular such doctrine is to be found in the 39 Articles of Religion, the Book of Common Prayer and the Ordinal’ (s.5(1), also canon A5).

Thus the 1662 Prayer Book (the whole Book, not just the rubrics) remains a part, though only a part, of the source material identified by canon A5, from which the answer to the doctrinal question must be found.

The Rubrics of the Book of Common Prayer

The Act of Uniformity 1662 provided that ‘All and singular ministers in any cathedral, collegiate or parish church or chapel or other place of public worship … shall be bound to say and use … the Book of Common Prayer’ (s.1).

The Book of Common Prayer (‘BCP’) was scheduled to the 1662 Act.  For this reason, the Privy Council held that BCP rubrics were of statutory authority and therefore to be exactly applied in public worship: ‘the Rubric[s] … must be strictly observed: no omission and no addition can be permitted’ (Martin v Mackonochie (1868) 2 Law Reports, Privy Council, 365 at 382-3).

However, the provisions of the Act of Uniformity 1662 to which the BCP was scheduled were repealed by the Worship and Doctrine Measure 1974, s.6(3) and schedule 2.  The 1974 Measure introduced a new regime of public worship.

S.1(1)(b) of the 1974 Measure empowers the General Synod ‘to make provision by Canon … for any matter, except the publication of banns of matrimony, to which any of the rubrics contained in the Book of Common Prayer relate’.  This confirms s.7(2) of the Marriage Act 1949, which provides that ‘Banns of matrimony shall be published … in accordance with the form of words prescribed by the rubric prefaced to the office of matrimony in the Book of Common Prayer …’. 

S.1(2) of the 1974 Measure provides that ‘any such Canon shall have effect notwithstanding anything inconsistent therewith contained in any of the rubrics in the Book of Common Prayer’.

S.1(1)(b) further provides that ‘the powers of the General Synod … shall be so exercised as to ensure that the forms of service contained in the Book of Common Prayer continue to be available for use in the Church of England’.

The rubrics are defined as ‘all directions and instructions contained in the [BCP], and all tables, prefaces, rules, calendars and other contents thereof’ (s.5(2)).

Forms of service are defined as ‘any order, service, prayer, rite or ceremony whatsoever … and the catechism’ (s.5(2)).

Thus the 1974 Measure effectively divides the contents of the BCP into two categories

(1) forms of service and

(2) rubrics (which are everything in the BCP other than forms of service). 

The Measure provides that BCP forms of service should continue to be available for use.  However, the only BCP rubric saved by the Measure is the one concerning banns of marriage.

This means that, with the sole exception of banns of marriage, the 1974 Measure abolished whatever legal authority the rubrics may have had under the 1662 regime.  The Canons promulged under the 1974 Measure have replaced the rubrics.  Therefore the rubrics cannot now have the authority attributed to them by the Privy Council in the 19th century.  All pre-1974 interpretations of the rubrics, whether right or wrong, are irrelevant to the modern law of worship.

Chancellor Rupert Bursell discussed the law of worship in two faculty cases, St John the Evangelist, Chopwell (1995) 3 Weekly Law Reports 606 and St Thomas, Pennywell (1995) Family cases 50.  He also wrote a book on this subject, Liturgy, Order and the Law (Clarendon, Oxford, 1996).

However, although Chancellor Bursell wrote 20 years after the Worship and Doctrine Measure was passed, he seems not to have appreciated that the 1662 regime was actually abolished by that Measure.

Both cases were concerned with the introduction of items associated with ‘ritualism’, including sanctus bells, a thurible or censer and (in the Pennywell case) a ‘sacrament-house’.

The chancellor observed (no doubt correctly) that such items would formerly have been considered illegal.  However, he granted the faculties sought.  His explanation of the change in the law was that the ‘rigorist’ interpretation of the BCP rubrics favoured by the Privy Council in the 19th century ‘has now been swept away’ (Pennywell, p.65), in favour of a more lenient interpretation. 

Both judgments are peppered with references to the ‘rigorist interpretation’ of the BCP and its rubrics.  The Chancellor did not accept that it is actually the authority of the rubrics themselves that has been ‘swept away’, not any particular interpretation of them.

On the contrary, the Chancellor worried that the famous ‘ornaments rubric’ in the BCP ‘may still apply’ to the sacrament-house in Pennywell (p.62).  He even purported to extend the supposed authority of the BCP rubrics by suggesting that they (and not just those concerning banns of marriage) may apply to modern forms of service as well as BCP services.

This latter suggestion was prompted by comparison of different ordination services.  The Chancellor observed that the 1662 rubrics provide for objections to be made to the ordination of a priest or deacon during the ordination service.  Modern ordination services apparently do not make provision for objections.

The Chancellor stated that ‘It is inconceivable that the question whether a valid objection may be made depends upon the choice of ordinal’ (Pennywell, p.67).   His conclusion followed that ‘In these circumstances, the rubric in the BCP, being a rubric concerning Church order, must apply to both rites [i.e the BCP and the modern rite]’ (pp.67-8)  

It may indeed be anomalous and unsatisfactory that one form of ordination service makes provision for objections to a candidate while another does not.  However, the solution is contained in the 1974 Measure.  The General Synod can exercise its powers under that Measure either to promulge a canon requiring that an opportunity for objections must be given at every ordination service, or to decline to approve a new form of ordination service unless it includes provision for objections.

The 1974 Measure provides that the BCP remains one of the sources of the Church of England’s doctrine (s.5(1)).  The rubrics may therefore still be evidence of doctrine.  However, the law of doctrine is a different subject from the law of worship.