Ecclesiastical law

Category: Liturgy and Law

Celebrating the Lord’s Day: The Ecclesiastical Regulation of Sunday

‘The Lord’s Day … is ever to be celebrated as a weekly memorial of our Lord’s Resurrection … particularly by attendance at Divine Service …’ (canon B6(1))

This blogpost is intended merely to provide a coherent narrative of the subject, rather than to say anything new. It therefore makes points that are discussed in more detail elsewhere on the blog.

The restrictions on Divine Service imposed as a result of the coronavirus situation are not discussed here. The legal basis of such restrictions – if they have one – is secular, not ecclesiastical.

If the restrictions are gradually being relaxed, now is arguably an appropriate time to pay renewed attention to the Sunday ecclesiastical laws.

Church Attendance

In the case of Jarrett v Steele (1820) 161 English Reports 1290, Sir John Nicholl, Dean of the Arches, held that ‘the possession of the [parish] church is in the [incumbent] and the churchwardens …’. In a later case he asserted the incumbent’s priority over the churchwardens. The incumbent ‘has, in the first instance, the right to possession of the key [to the church], and the churchwardens have only the custody of the church under him’ (Lee v Matthews (1830) 162 English Reports 1119 at p.1120).

Parishioners have rights over the church too. In Cole v Police Constable 443A (1936) 3 All England Reports 107, Mr Justice Goddard (later Lord Chief Justice Goddard) held that ‘the parishioner’s right to attend his parish church … may be described as a common law right. The church, by being dedicated to sacred uses, is being dedicated to the use of parishioners to be there for [public] worship …’. However, Jarrett v Steele held that ‘no person has a right to enter [church] when it is not open for Divine Service’, e.g for private prayer.

Thus all legal rights over the parish church serve the same purpose – the celebration of Divine Service. The rights of the incumbent and the churchwardens give effect to the parishioners’ right.

The churchwardens are responsible for managing church attendance. Their duty is ‘[to] maintain order and decency … during the time of Divine Service’ (canon E1). The stave, symbol of the churchwarden’s office, alludes to this function of keeping order. Churchwardens are assisted in their task by the parish sidesmen (canon E2).

Thus the churchwardens arrange seating (canon F7(1)). Parishioners, as is their right, enjoy priority over non-parishioners, who attend only on licence (cf canon F8(3)). Legal rights to occupy particular pews are still possible. The incumbent decides who gets to sit in the chancel.

If there is serious disorder, the churchwardens may require assistance from the secular law. ‘Riotous, violent or indecent behaviour’ in church is a criminal offence (Ecclesiastical Courts Jurisdiction Act 1860, s.2). The bishop has power (virtually never used) to exclude ‘notorious offenders’ from Holy Communion (canon B16). However, the exclusion of a parishioner from Divine Service will require a secular injunction, because such exclusion deprives him of a legal right.

Divine Service is, of course, the responsibility of the incumbent (cf canon C24). Just as the churchwardens are assisted by sidesmen, so the incumbent may be assisted by other clergy (e.g an assistant curate) and by licensed lay ministers. If the benefice is part of a team or group ministry, the responsibility will be shared with the other ministers of the team or group (Mission and Pastoral Measure 2011, ss.34 and 35).

The churchwardens have no direct responsibility for Divine Service, even if the incumbent fails in his. Theirs is ‘an office of observation and complaint, but not of control, with respect to Divine Worship … if the minister introduces any irregularity into the service, they have no authority to interfere, but they may complain to the ordinary’ [i.e the bishop] (Hutchins v Denziloe and Loveland (No 1) (1792) 161 English Reports 514, at p.516).

Only if there is a vacancy in the benefice, with no incumbent or licensed priest-in-charge, may the churchwardens acquire responsibility for the provision of Divine Service, and even this depends on the bishop’s direction or request (cf Mission and Pastoral Measure 2011, s.86(2): Dale’s Law of the Parish Church (7th edition 1998, p.73).

In discharging their respective functions, the incumbent and churchwardens must have ‘due regard’ to the ‘safeguarding’ guidance issued by the House of Bishops (Safeguarding and Clergy Discipline Measure 2016, s.5(1)).

Nowadays the time of Divine Service is invariably advertised on a notice placed near the church door (and online). However, a bell is the traditional mode of announcement. (In the old days many parishioners might be unable to read a notice.) The church should therefore have ‘at least 1 bell to ring people to Divine Service’ (canon F8). The bell usually starts ringing 5 or 10 minutes before Divine Service begins. All other bellringing is a matter for the incumbent’s licence. Canon F8 confirms that ‘No bell … shall be rung contrary to the direction of the [incumbent]’.

Divine Service

Provision. Canon B11 and canon B14 require services of Morning and Evening Prayer, and of Holy Communion, on all Sundays. Service must be held ‘in at least 1 church in each benefice or … plurality [of benefices]’. These requirements may be dispensed with for ‘good reason’, but Sunday worship must not be discontinued altogether, even on an occasional basis. The incumbent must provide at least 1 Sunday service.

The revised canons make similar provision for Divine Service in the cathedral, which is the parish church of the diocese (canons B10 and B13). The Cathedrals Measure 2021 empowers the chapter to ‘order the worship of the cathedral’ (s.11(1)(a)). The dean must ‘ensure that Divine Service is duly performed’ (s.12(2)(a)).

Divine Service in a shared building will be regulated by the sharing agreement, which agreement ‘may dispense, to such extent as may be necessary, with the requirement to hold certain [Sunday] services …’ (Sharing of Church Buildings Act 1969, s.4(2)).

Divine Service in an extra-parochial place, such as a college or hospital, will be regulated by the bishop’s licence to the chaplain thereof (Extra Parochial Ministry Measure 1967, s.2).

In a mission initiative, Divine Service will be determined by the bishop’s order constituting the mission (Mission and Pastoral Measure 2011, s.80(13)).

Sunday Communion in private chapels (as distinct from extra-parochial places) is discouraged, ‘so that the residents in the said house may resort to their parish church and there attend Divine Service’ (canon B41(1)).

Form. Church of England services are authorised by canon B1. Canon B1 services comprise

(1) Prayer Book services (which date from 1662) and

(2) modern services.

In view of his responsibility for Divine Service, the incumbent is expected ‘to have a good understanding of the forms of service used …’ (canon B1(2)). However, the incumbent’s choice of service requires the agreement of the parochial church council (‘the PCC’) (canon B3(1)).

Only canon B1 services may be used, subject to 2 very limited exceptions

(1) Canon B5 gives the incumbent discretion to make ‘variations which are not of substantial importance in any [canon B1 service]’. And the incumbent can introduce liturgical material of his own ‘on occasions for which no provision is made under [canon B1]’.

There is unlikely to be much scope for such material in ordinary Sunday worship. And the discretion conferred by canon B5 is still subject to the ‘pastoral guidance, advice or directions’ of the bishop.

(2) If an ecumenical scheme is in force, a special ecumenical service may be held (canon B43(8)).

Language. The normal language of Divine Service is English, but the House of Bishops may approve non-English translations of canon B1 services (canon B42). Use of such a translation requires the permission of the local bishop. Divine Service may be performed in sign language. Latin services are permitted in universities, public schools and ‘such other places of religious and sound learning as custom allows’.

Vesture. The incumbent and other officiating ministers are generally required to be robed for Divine Service, though the law on this important matter has recently been – rather clumsily – amended.

Canon B8, which is entitled ‘Of the vesture of ordained and [other] authorised ministers’ (so presumably lay ministers as well), now provides that the usual liturgical vesture is

(1) surplice or alb and

(2) scarf or stole.

The cassock is no longer mentioned, but is presumably implied when the surplice is worn. (At any rate a surplice looks rather odd without a cassock beneath it.) Nor does canon B8 stipulate that the stole may be worn only by ordained ministers, not lay ministers. Cassock and alb are now often combined in a single vestment.

‘When a stole is worn other customary vestments may be added’, i.e the catholic eucharistic vestments for Holy Communion, or a cope for special occasions.

However, canon B8 goes on to provide that ‘some other form of dress’ – presumably a reference to ordinary clothes – is possible, but only if the incumbent ‘has ascertained [i.e made certain] by consultation with the PCC that [such] other form of dress will be acceptable’. Even if so acceptable, ordinary clothes must still be ‘suitable to [the] office … a sign and mark of … holy calling and ministry, as well to others as to [regular worshippers]’ (canon C27).

A change of robes (e.g assuming or discontinuing eucharistic vestments) likewise requires the consent of the PCC.

Any disputes over the incumbent’s sartorial appearance must be referred to the bishop ‘whose direction shall be obeyed’.

Ornaments. Canon B8 is the modern replacement of 1 half of the famous Ornaments Rubric in the Book of Common Prayer, ‘the ornaments of the minister’. The other half – ‘ornaments of the church’ – are not regulated by the revised canons. Thus cross and lights on the altar, colourful altar frontals, hangings, flowers and suchlike will be regulated, if at all, by the faculty jurisdiction of the ecclesiastical courts.

Ceremonial. The revised canons are also silent about ceremonies, i.e ceremonial acts performed during Divine Service (e.g processions, ‘smells and bells’, elevation of the consecrated Bread and Wine, the Sign of the Cross). It is therefore argued that such actions are at the discretion of the incumbent. The incumbent’s discretion will extend to the appointment of altar-servers or acolytes to assist with ceremonies.

However, the incumbent’s freedom will be limited by any directions or rubrics contained in the form of service that is being used, and by the requirement that all worship must be ‘reverent and seemly’ (cf canon B5(3)).

Music, like ceremonies, is largely a matter for the incumbent’s discretion, as regulated by canon B20. The incumbent must ‘pay due heed to his [organist’s] advice’, but always retains ‘the final responsibility and decision’.

The incumbent must ensure that all musical items ‘are appropriate, both the words and the music, to the solemn act of worship … and to banish all irreverence’. The chosen music must also be appropriate ‘to the congregation‘. This may refer to the culture or churchmanship of the particular parish.

However, there seems to be no requirement for a parish church to have any music at all. Neither the organ or any musical instrument is identified as one of the ‘things appertaining to churches’ prescribed by section F of the revised canons.

The musical position of cathedrals is very different. In St John’s, Margate (1794) 161 English Reports 524, Sir William Scott held that ‘In cathedral churches [organs] would … be deemed necessary and the ordinary [bishop-visitor] may compel the dean and chapter to erect an organ …’ (p.525). All cathedrals are now required to ‘provide for the appointment of a person having the function of supervising music …’ (Cathedrals Measure 2021, s.5(1)(g)), aka the choirmaster.

Posture. Modern ecclesiastical law can do little to regulate the conduct of lay worshippers, other than by way of teaching or exhortation (like canon B6(1), quoted above). However, canon B9(2) provides that worshippers ‘shall have regard to the rubrics of the service and locally established custom in the matter of posture‘, but no longer insists upon the neglected practices of

(1) kneeling and

(2) ‘giving due reverence to the Name of the Lord Jesus’.

Publication. The incumbent must announce any important Holy Days that will fall during the coming week (e.g a major saint’s day, Ash Wednesday, Ascension Day) (canon B7). The preparation of a new electoral roll must be announced (Church Representation Rules 6(4)).

Banns of marriage must also be published at the principal Sunday service, using a prescribed form of words. They must be published from a special register, ‘and not from loose papers’ (Marriage Act 1949, s.7(3)). Banns may normally be published only by an ordained minister, but in certain limited cases a layperson may do so (s.9).

It is argued that the incumbent is bound to publish a pastoral letter or other communication to the parishioners from the bishop, who is ‘the chief pastor of all that are within his diocese’ (canon C18(1))

All publications not required by law will be at the incumbent’s discretion.

Collections are generally taken at Sunday services. The incumbent and PCC now ‘jointly … determine the objects to which all moneys … collected in church shall be allocated’ (PCC (Powers) Measure 1956, s.7(iv)).

Registration. The church must keep a register (possibly in electronic form), in which ‘shall be recorded every service of public worship, together with the name of the officiating minister and of the preacher … the number of communicants [at Holy Communion], and the amount of any …. collections and, if desired, notes of significant events’ (canon F12). It is not clear who does the recording, the incumbent and / or the churchwardens.

However, the register of banns must be signed by ‘the officiating clergyman, or by some person under his direction’ (1949 Act, s.7(3)).

Word and Sacrament

Divine Service is centred around

(1) the Bible and

(2) the Holy Communion, or Eucharist.

Roman Catholic law aptly describes Bible and Eucharist as the ‘twofold table’. Word and Sacrament. The written Word and the Word made flesh.

Ecclesiastical law regulates 4 aspects of the ministry of the Word, albeit rather perfunctorily. However, closer study of these 4 aspects might improve the quality of Divine Service.

(1) Bible. Canon F9 requires the provision of ‘a Bible’, or rather 2 Bibles: 1 for the incumbent and another ‘to be kept in the pulpit for the use of the preacher’. The incumbent’s Bible must include the Apocrypha, and must be ‘of large size’.

Apart from this, the revised canons seem to make no provision for the use of the Bible in Divine Service. In particular there is no provision for the approval of particular translations or versions of the Bible, so presumably any version will be acceptable (unless it contravenes the requirement of reverence) and a matter for the incumbent’s discretion. The Prayer Book (Versions of the Bible) Measure 1965 permits the use of different versions of the Bible in certain circumstances, but this applies only to Prayer Book services, not modern services.

(2) Sermon. Canon B18(1) provides that at least 1 sermon must be preached on Sunday, ‘except for some reasonable cause approved by the bishop’. The liturgical publication Common Worship suggests excitingly that ‘the sermon [can] include … the use of drama, interviews, discussion, audio-visuals’.

Licensed lay ministers may now preach, as well as clergy (canon E4 and E7). Canon B18(2) also provides that ‘another person’ besides an ordained or lay minister may preach at the invitation of the incumbent, though the permission of the bishop is required, either specifically or in accordance with diocesan regulations.

(3) Sunday School. The incumbent is required to provide a Sunday school for ‘children and young people’ (canon B26), i.e persons too young to profit from the sermon. The incumbent may teach the children personally, or appoint ‘some godly and competent persons’ (i.e Sunday school teachers) to do so.

The Sunday school curriculum must be based on

(a) the Bible

(b) the Book of Common Prayer and

(c) ‘especially’ the Church Catechism.

(4) Assisted Self-Examination. As canon B29(1) notes, Divine Service includes ‘the General Confessions of the congregation and … the Absolutions pronounced by the priest’.

The incumbent is supposed to teach parishioners ‘from time to time’ to prepare themselves to receive Holy Communion, ‘with such preparation as is required by the Book of Common Prayer’ (canon B15(2)).

The Prayer Book sternly exhorts the faithful ‘to search and examine your own consciences … to bewail your own sinfulness, and to confess yourselves to Almighty God, with full purpose of amendment of life …’.

General public confession and absolution following personal self-examination may not be sufficient in a particular case. Canon B29(2) therefore allows that ‘If … any [person] … requires further comfort or counsel, let him come to some discreet and learned minister of God’s Word; that by the ministry of God’s Holy Word he may receive the benefit of absolution, together with ghostly [i.e spiritual] counsel and advice, to the quieting of his conscience …’.

This wording suggests that private confession and absolution are part of the ministry of the Word rather than the Sacrament. An optional form of preparation for the Sacrament, but not a sacrament per se. This is, of course, consistent with Article 25, which denies that ‘penance’ is a sacrament of the Gospel.

Holy Communion begins with the uncovering of the altar or ‘holy table’ (canon F2). The altar is normally covered with a coverlet of ‘silk or other decent stuff’. This is replaced by ‘a fair white linen cloth’ for Holy Communion.

The churchwardens are responsible for providing the bread and wine (canon B17). The bread may be leavened or unleavened. The wine must be ‘fermented juice of the grape’. As the Legal Advisory Commission recently noted, this means that it must have some alcoholic content.

Only an episcopally ordained priest can officiate at Holy Communion in a canon B1 service (canon B12(1)). It is possible for another minister to officiate at a special ecumenical service, but the Anglican faithful must be warned of the lack of episcopal ordination (canon B43(11)).

However, laypeople assist at Holy Communion in various ways. They may read the epistle and the Gospel. As mentioned, a layperson may preach. Licensed laypeople usually assist with the distribution of the Sacrament (canon B12(3)).

Holy Communion comprises 2 distinct rites

(1) the Eucharist, the prayer of thanksgiving in which the bread and wine are consecrated and

(2) the Communion itself, the consumption or ‘reception’ of the consecrated elements.

The priest is the link between these 2 rites. Having celebrated the Eucharist, he must communicate himself (canon B12(2)).

The revised canons do not in terms require Holy Communion to be administered under both kinds. However, canon B17 obliquely refers to this by providing for ‘a sufficient quantity of bread and of wine for the number of communicants that shall … receive the same’ (canon B17(1)).

All Holy Communion services, from the first Book of Common Prayer in 1549 onwards, have required Communion in both kinds for all communicants. They are supported by Article 30, which invokes ‘Christ’s ordinance and commandment’.

The ‘necessitie’ provision in the Sacrament Act 1547 (at s.8) remains on the statute book, and provides a convenient, 500-year-old figleaf of authority for the present practice of withholding the Communion Cup. However, we have argued elsewhere that

(1) this provision applied only to the liturgy in use in 1547, and, though not expressly repealed, was nevertheless impliedly repealed by the subsequent Acts of Uniformity and / or

(2) even if still applicable, it does not apply to the coronavirus situation. (Parliament in 1547 would have described that as a ‘plague’, not a ‘necessitie’.)

The incumbent is responsible for washing the Communion vessels after the celebration (canon F3(2)). However, the revised canons make no provision for the disposal of unconsumed consecrated bread and wine. Reservation of the Sacrament, in an aumbry or tabernacle, though nowadays a near-universal practice and no longer controversial, remains a matter for the faculty jurisdiction.

Baptism, like Holy Communion, should also be administered on Sunday, ‘at, or immediately after, public worship, when the most number of people come together …’ (canon B21). Private baptism, like private Communion, is discouraged, ‘except for grave cause and necessity’ (canon B22(9)). The font is uncovered for baptism, just as the altar is uncovered for Holy Communion (cf canon F1(2)). The baptism must be registered afterwards (cf canon B39(1)).

Baptism founds the right to be admitted to Holy Communion. This right is now regulated by canon B15A. Communicants are expected to ratify their baptismal promises by episcopal confirmation, or at least be ‘ready and desirous’ to be confirmed. The bishop may permit young children to receive Holy Communion, but only if satisfied of ‘adequate provision for [their] preparation and continuing nurture in the Christian life’, a reference to Sunday School (Regulations of 2006). Practising Christians from non-episcopal Churches are admitted to Holy Communion.

The common law right to attend Divine Service is not explicitly linked to baptism in the authorities. However, possession of a baptismal font was originally the legal test that a building was a church, i.e a place of public worship, and therefore subject to the rights discussed earlier. Thus the font may be the foundation of parishioners’ rights over their parish church, even if baptism per se is not.

Smells and Bells: Services and Ceremonies

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.

The Lincoln Judgment

Read v Bishop of Lincoln (1890)

Edward King (1829-1910) is now commemorated in the Church of England’s liturgical Calendar (the nearest Anglican equivalent of canonisation), and by an impressive statue in Lincoln Cathedral, where he officiated as Bishop.  He was revered for his holiness, learning and pastoral zeal.  The Dictionary of National Biography suggests that he was the first Anglican bishop to wear a mitre.

However, Bishop King’s Anglo-Catholic ritualism was not to everyone’s taste.  The Church Association, a Low Church pressure group represented by Mr Read, complained about it to the Archbishop of Canterbury.

The complaints about the Bishop’s ritualism were similar to those made against the Rev Alexander Heriot Mackonochie (1825-1887), Vicar of St. Albans Church, Holborn, who also fell foul of the Church Association, represented this time by Mr Martin.  Mackonochie was prosecuted twice in the Court of the Arches.

Sir Robert Phillimore, Dean of the Arches (and original author of the famous commentary on ecclesiastical law), tried both the Mackonochie cases.  He upheld some of the complaints against Mr Mackonochie, but dismissed others.  However, the Church Association appealed to the Privy Council, which overruled Sir Robert and upheld the complaints that he had dismissed.

Mr Mackonochie was prosecuted under the Church Discipline Act 1840.  He was a mere vicar.  There was then no statutory procedure for the trial of a bishop.  The Archbishop of Canterbury, Edward White Benson, decided to try the case against Bishop King personally, under a common law procedure formally described as ‘the Court of the Archbishop’ (or, less formally, ‘the Archbishop in his library’).

In Bishop of St David’s Case (1699) 91 English Reports 126, the secular court accepted that ‘By the common law, the Archbishop has a metropolitical jurisdiction … Archbishops are over bishops, as well as bishops are over the other clergy’ (p.127).  Accordingly ‘the Archbishop hath a provincial power over all bishops of his province and may hold his court where he will, either at the Arches or elsewhere.  He may likewise convene the [accused] party before himself and judge himself …’ (p.711).  This was the authority for the Lincoln Judgment.

The Lincoln Judgment resembles Phillimore’s judgment in Martin v Mackonochie (No.1) (1868) Law Reports 2 Admiralty and Ecclesiastical 116.  Both are very long:  Sir Robert’s runs to 130 pages, the Archbishop’s to a mere 89 pages.  They are long for the same reason: copious citation and discussion of theological and historical materials.  The Privy Council later observed that the Archbishop ‘consulted ancient authors, historical and theological works, pictures, engravings and a variety of documents … (1892) Appeal Cases 644, at p.652.  All this erudition is impressive, but it also makes the judgments arduous to read.

The complaints against Mr Mackonochie and the Bishop of Lincoln mostly alleged the performance of illegal ceremonies.  The Archbishop defined a ceremony as ‘a formal symbolic gesture of religious meaning publicly made by the Minister in his character of Minister, rendering the delivery of language more solemn, and not merely expressing his private devotion’ (p.81).  Thus a ceremony is a public act, to be distinguished from a private devotional act.  A ceremony is an action.  It must therefore be distinguished from a rite (which is a form of words) and from an ornament (a physical item).

The Bishop was charged with the following offences

(1) Mixing Water with Wine

(2) Administering the Mixed Chalice

1549 rubric: ‘the minister … putting the Wine into the Chalice … [and] putting thereto a little pure and clean water’

1552 and 1558 rubrics: no equivalent

1662 rubric: ‘the priest shall … place upon the Table so much Bread and Wine, as he shall think sufficient’.  (No reference to water).

The Archbishop concluded that the removal of the 1549 rubric from the 1552 Prayer Book meant that the ceremony of mixing water with wine must be discontinued.

However, he concluded from a review of the historical evidence that

(1) mixing before the Communion Service had begun was the practice of the Early Church and

(2) the reformers were aware of this, and sought to replicate the practice.

Therefore mixing before the service was not an illegal ceremony, but a permitted practice.

(3) Ablution

1662 rubric: ‘if any [Bread and Wine] remain … which was consecrated … the Priest and such other of the Communicants as he shall call unto him, shall, immediately after the Blessing, reverently eat and drink the same’.

This rubric clearly contemplates that the consumption of leftovers may be done in public, as it provides that

(1) the priest may consume together with other communicants, not alone, and

(2) consumption shall take place immediately, without delay, therefore at a time when the congregation will still be present.

The Bishop’s action complied with the rubric and was not an illegal ceremony.

(4) Eastward Position

1549 rubric: ‘The Priest standing humbly before the middle of the Altar’

1552 rubric: ‘The Table … shall stand in the body of the Church, or in the Chancel … the Priest standing at the north side of the Table’.  (‘Table’, not ‘Altar’ any more.)

1558 and 1662 rubrics: ditto.

1662 rubric: on the Offertory ‘the Priest … shall humbly present and place it upon the Holy Table’.

The rubrics only refer to the Eastward and Northward positions in relation to the opening prayers in the Communion Service.  They are silent as to the correct position during the Consecration.  The Archbishop pointed out that the Offertory Rubric necessarily requires the priest to face east.

The Archbishop denied that the Eastward position ‘conveys some sacrificial doctrine of the Eucharist against the doctrine of the English Church’.  He observed that the Tractarians ‘habitually celebrated at the North End, and many who have used the Eastward position have done so with no thought that they were teaching any doctrine by it …’ (p.43).

He concluded that ‘The imputed sacrificial aspect of the Eastward position is new and forced, and can take no effect in rendering that position either desirable … or illegal’ (pp43-44).  It was therefore permitted.

(5) Not Breaking the Bread ‘before the People’

1662 rubric: ‘the Priest, standing before the Table, [should have] so ordered the Bread and Wine, that he may … break the Bread before the People’.

Breaking the Bread is one of the 5 Manual Acts

(1) Taking the Paten

(2) Breaking the Bread

(3) Touching the Bread

(4) Taking the Cup

(5) Touching the Cup and any other vessel containing Wine.

This rubric is difficult to reconcile with the Archbishop’s conclusion on the Eastward position. ‘The Minister, wherever he stands during the Prayer of Consecration, is bound to take care that the Manual Acts should not by his position be rendered invisible to the bulk of the Communicants’ (p.49).

As the Bishop was in the Eastward position during the Prayer of Consecration, the congregation could not see him breaking the Bread.  This contravened the Rubric.

Moreover, as the Archbishop himself acknowledged, ‘the tenor of the Common Prayer is openness … and specially to replace [i.e reinstate] the Eucharist in its [original] character as the communion of the whole Body of Christ’ (p.50).

(6) Reciting the Agnus Dei

The Agnus Dei is a prayer or hymn, therefore a rite, not a ceremony.  It appeared in the original Book of Common Prayer 1549, but was omitted thereafter.  The reason for this omission was ‘because it was associated with the Mass and the adoration of the Host’, but not because of any doctrinal objection.  On the contrary, the 2 clauses which compose the Agnus Dei are ‘taken out of the Bible’ (p.60).  They also appear in the Gloria In Excelsis, which was never omitted from the Prayer Book.

The Archbishop pointed out that it had never been considered illegal to sing a hymn or anthem during the Communion Service, even where this is not expressly prescribed.  The Act of Uniformity 1548 also provided that ‘it shall be lawful … to use openly any psalms or prayer taken out of the Bible at any due time’.

Recitation of the Agnus Dei was therefore not unlawful.  This conclusion actually contradicted that of Phillimore, who had held that it was unlawful: Martin v Mackonochie (No.2) (1874) Law Reports 4 Admiralty and Ecclesiastical 279.  However, his son and editor, Sir Walter Phillimore, conceded that ‘this question was argued more thoroughly [in the Lincoln case] than it had been previously’ (Ecclesiastical Law, 2nd ed 1895, p.776).  The Archbishop’s reasoning is indeed compelling on this point.

(7) Lighted candles on the Communion Table ‘as a matter of ceremony and when … not wanted for the purpose of giving light’.

Lighted candles were clearly lawful before the Reformation (p.66).  Were they outlawed at the Reformation?

There is no specific rubrical reference to candles, but candles are clearly ‘ornaments of the church’, and therefore governed by the Ornaments Rubric.  In Mackonochie (No.1), however, Phillimore considered that the use of lighted candles was a ceremony, and the Privy Council was ‘disposed to agree’: (1868) Law Reports 2 Privy Council 365, at p.385.  It pointed out that ‘There is a clear and obvious distinction between

[1] the presence in the church of things inert and unused and

[2] the active use of the same things as a part of … a ceremony’.

However, the Archbishop dealt with the lighted candles as ornaments, not ceremony.  He held that ‘it does not appear that [the Ornaments Rubric] … altered the legality of the 2 lights … if it was legal up to this time that they should so stand’ (p.71).

The conclusion that lighted candles were not illegal (whether qua ornament or qua ceremony) flatly contradicted the Privy Council’s decision in Martin v Mackonochie (No.1), though it agreed with Phillimore’s decision which the Privy Council had overruled.

Mr Read did not neglect to inform the Privy Council of the Archbishop’s apparent disregard of its authority.  The Privy Council admitted that ‘If the proof [i.e evidence] corresponded with the allegation [against the Bishop] … it would be a matter for grave consideration how far the Archbishop’s elaborate exposition of the history of the question … [has] afforded new materials for consideration since the decision of this Board in Martin v Mackonochie upon the same subject’ (pp.666-7).

However, nearly a quarter of a century had passed between the first prosecution of Mr Mackonochie and the Lincoln Judgment.  Judicial attitudes to ritualism were evidently more relaxed by then.  The Privy Council was obviously unwilling to overrule the Archbishop.  It therefore identified an ingenious distinction between the facts of the 2 cases.

The true issue in both cases was not whether lighted candles were lawful or unlawful, but whether Mr Mackonochie or the Bishop had acted illegally.  Mr Mackonochie had acted illegally, because he was a vicar and officiating in his own church when the candles were lit.  They must have been lit either by him personally or by someone else at his direction.

The Bishop, by contrast, had not acted illegally, because he had not lit the candles, nor caused them to be lit.  (At least, there was no evidence that he had.)  The candles were the responsibility of the vicar of the church where the Bishop was officiating.  The Bishop may have approved of the lighted candles but approval per se did not amount to an ecclesiastical offence.  Any criminality in respect of the candles attached to the vicar, not the Bishop, and the vicar was not on trial.

(This distinction might be persuasive if the bishop had been officiating outside his diocese, as a visitor or guest.  As it was, however, the Bishop was officiating in his own diocese, and therefore in a place where he had the chief cure of souls, and was the vicar’s canonical superior.  In these circumstances, it could well be argued that the Bishop was ultimately responsible for the candles.)

It was therefore on the basis of this dubious and hairsplitting technicality that the Lincoln Judgment was allowed to stand, notwithstanding the Privy Council’s contrary conclusion in Mackonochie.  The Privy Council did not actually accept the Archbishop’s conclusion on candles, and did not repent of its earlier decision.  It merely agreed with the Archbishop that the Bishop had not acted illegally, but for different reasons.

(8) Sign of the Cross in Absolution

The Prayer Book refers only to the Sign of the Cross in baptism, not elsewhere.  It was argued for the Bishop that ‘omission of a direction is not a prohibition’ (p.82).  The Archbishop considered that the ceremony could only be lawful if it had been practised in the mediaeval Church.  The Prayer Book could not be expected to prohibit a practice that was then unknown.

Having reviewed the mediaeval English liturgies, the Archbishop found that ‘there is no direction for even … private crossing of himself by the priest’ (p.83).

If it was not a revived mediaeval practice, the Sign of the Cross in Absolution must be ‘An observance … borrowed and introduced from foreign [i.e popish] usages’ after the Prayer Book was written (p.83).  Thus it could not be treated as a practice omitted, or tacitly approved, by the rubrics.  On the contrary, it was ‘an innovation which must be discontinued’ (p.84).

(9) Sign of the Cross in Benediction

1549 rubric: ‘the Priest turning him to the people, shall let them depart with this Blessing’

1552 rubric: ‘the Priest or the Bishop, if he be present, shall let them depart with this Blessing’

In the mediaeval Mass, apparently, there was no final blessing by the priest, merely a dismissal of the faithful with such words as Ite, Missa Est or Benedicamus Domino.  A blessing was pronounced only by the bishop, if he were present.  This special episcopal blessing did not involve the Sign of the Cross, merely the lifting up of the hand (p.85).

The closing blessing in the Prayer Book could not therefore be a continuation or revival of a mediaeval ceremony (p.87).  The Prayer Book blessing did not provide for or permit the Sign of the Cross, any more than the Absolution.

The conclusions reached by the Lincoln Judgment are generally persuasive, with the exception of (4), concerning the Eastward Position.  However, the Judgment can be criticised to the extent that it

(1) relied too much on extraneous material that was either irrelevant or of marginal relevance and

(2) paid insufficient regard to the Book of Common Prayer, which was the true source of authority for its conclusions.

Conclusion (8) best illustrates the confusion of erudition and authority.  The Archbishop held that the Sign of the Cross in Absolution was illegal because it was a modern, post-Reformation ceremony, and not a mediaeval ceremony.  If it had been a mediaeval ceremony, it would have been lawful.

Yet the Preface to the Book of Common Prayer ‘Concerning Ceremonies’ is unequivocally subtitled ‘Why some be abolished, and some retained’.  The dichotomy is clear.  A ceremony is either abolished, or it is retained.  All ceremonies not retained in the Prayer Book are abolished.  The question whether a particular ceremony is lawful must therefore be answered by consulting the Prayer Book, not extraneous sources.  If a particular ceremony is not retained in the Prayer Book then it is not permitted, regardless of whether it is mediaeval or modern.

The Privy Council observed in Mackonochie that the Preface ‘divides all ceremonies into … 2 classes: those which are retained are specified … none are abolished specifically … but it is assumed that all are abolished which are not expressly retained’ (p.388).  This was the essential reason why it overruled Sir Robert.

The Preface emphasised the self-contained, comprehensive character of the Prayer Book as a manual of public worship.  Retained ceremonies ‘are so set forth [in the Book of Common Prayer] that every man may understand what they do mean, and to what use they do serve’.  This does not require the brains of an Archbishop!  The Archbishop’s ‘elaborate exposition’ of history and theology, though impressive in a way, was irrelevant, and perhaps even positively misleading.  Phillimore’s erudite judgment in Mackonochie may be open to similar criticism.

This analysis shows that the Prayer Book rule concerning ceremonies was stricter than its rule concerning ornaments.  In the blogpost ‘What did the Ornaments Rubric mean?’, filed below, it is argued that the Ornaments Rubric, on its wording, required the use of some ornaments, but did not positively forbid others.  The Preface ‘Of Ceremonies’, by contrast, required the use of some ceremonies, but also did positively forbid all others.

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.