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.

The Easter Offering: Duty and Charity

‘[At] the Offertory, so many as are disposed, shall offer unto the poor men’s box every one according to his ability and charitable mind.

And at the offering days appointed, every man and woman shall pay to the Curate [i.e the incumbent] the due and accustomed offerings.’  (Book of Common Prayer 1549, rubric)

There seem to be 2 widely held assumptions concerning the Easter offering, that:

(1) it is the collection taken at church services on Easter Day and

(2) the proceeds are part of the incumbent’s official income, at least if the incumbent wishes to claim them.

The 1549 rubric quoted above suggests that this assumption is mistaken.  The rubric indicates a clear distinction between the Easter offering and the normal offertory collection, including the collection taken on Easter Day.  The Easter offering is separate from, and additional to, the offertory collection.

Moreover, the two payments are different in character.  The offertory collection is a voluntary charitable donation for the relief of poverty.  The Easter Offering, by contrast, is a ‘due’ payment, not a gift determined by charitable disposition.  A due is a duty (just like a duty on imported goods).  The Easter Offering is a compulsory payment, a tax payable to the incumbent.

As the rubric implies, Easter was not the only ‘offering day’ in the middle ages.  Phillimore relates that there were originally 4 offering days in all, Christmas, Easter, Whitsun-Pentecost and the feast of the dedication of the parish church (Ecclesiastical Law, 2nd edition 1895, p.1243).

However, from 1552 onwards, Easter is the only offering day referred to in the Book of Common Prayer.  The revised rubric provides that

‘yearly at Easter, every parishioner shall reckon with his parson, vicar or curate … and pay to … him all ecclesiastical duties, accustomably due …’.  The word offering no longer appears.

This revised wording, of course, makes more explicit the compulsory nature of the payment, and its difference from the voluntary donation for the poor.

Phillimore suggests that the Easter duty was a common law right of all incumbents (p.1243).  Therefore an incumbent did not have to prove his right to payment.  An Easter offering was a larger payment than the common law duty, but it was payable only if the incumbent could prove an immemorial custom in the parish for payment of the offering (i.e a custom dating from 1189, very difficult to prove).

Victorian legislation permitted individual parishes ‘to enter into a parochial agreement for the commutation of Easter offerings’ (p.1244), i.e to cancel the parish offering in return for payment of a one off lump sum to the incumbent.

Although reference to Whitsun as an offering day was removed from the Prayer Book in 1552, Pentecostals (Whitsun offerings or duties) may have continued after that time.  The Ecclesiastical Jurisdiction Measure 1963 provides that Pentecostals ‘shall cease to be exigible’ (demandable) (s.82(3)), but does not mention the Easter duty / offering.

The Easter duty / offering referred to in the Prayer Book has not been generally abolished, but it has been effectively destroyed by inflation.  The common law duty was a mere twopence a head (2d), so would now be impossible to enforce in practice.  An immemorial offering (if it can be proved) will only be worth a few pence more.  Common law and customary payments may not be adjusted for inflation (see the case of Bryant v Foot (1867) 2 Law Reports Queen’s Bench 161).

On our analysis, therefore, the incumbent’s only legal right is to the compulsory, though negligible, Easter duty.  He has no a priori common law right to keep the voluntary Easter collection for himself (any more than collections taken on other Sundays).  Even though it was removed from the rubric as long ago as 1552, the word ‘offering’, with its connotation of voluntary donation, has served to conflate the two payments artificially, encouraging a perception that they are one and the same.  However, they are clearly distinct in law.

The rubric concerning the offertory collection has changed since 1549.  It now provides that ‘the money given at the Offertory shall be disposed of to … pious and charitable uses’.  This, of course, allows a broader scope of use of the money than that available in 1549.  The money can now be applied to many uses other than the relief of poverty.  However, it is hard to argue from this that the incumbent’s personal benefit constitutes a ‘pious and charitable’ use.

The Parochial Church Councils (Powers) Measure 1956 empowers the parochial church council (‘the PCC’) ‘jointly with the minister to determine the objects to which all moneys to be given or collected in church shall be allocated’ (s.7(iv)).   If they cannot agree, the bishop decides instead (s.9(3)).

This power was originally expressed to be ‘subject to the directions contained in the Book of Common Prayer as to the disposal of money given at the offertory’.  The incumbent and PCC (and the bishop) therefore remained bound by the rubric.  They could decide how, exactly, the collection money was to be spent, but it still had to be spent on pious and charitable uses.

This restriction on the use of the collection money was removed in 1988, so the incumbent and PCC are no longer bound by the rubric at all.  However, it is arguable that, even in its amended form, the 1956 Measure does not confer an unfettered discretion on the incumbent and the PCC.  It suggests that the collection money must still be applied for the benefit of ‘objects’, i.e purposes or causes, rather than the benefit of particular people.

It has been pointed out that the rubric in the Book of Common Prayer applies only to the collection taken at Holy Communion.  The Prayer Book makes no provision for collections taken at Morning and Evening Prayer and other services.

In the case of Marson v Unmack (1923) Probate 163 the Court of the Arches suggested that ‘Collections … other than … the offertory, may lawfully be made for objects determined by agreement between the incumbent and the PCC.  Such objects may be and … ought to be announced to the congregation before collection …’ (p.169).  Again, the reference is to ‘objects’, and the Easter collection is not specifically discussed.

Apart from the wording of the 1956 Measure, it is arguably inconsistent with the incumbent’s trusteeship of the collection money for him to be able to determine that it should be paid to himself, even with the agreement of the PCC and the bishop, and even if the congregation is fully informed.  There is a clear conflict of interest.  A trustee may not profit from his trust.

If the incumbent’s claim on the voluntary Easter collection has no basis in common law it obviously requires a statutory basis.  It might therefore be appropriate to amend the 1956 Measure to provide this.

Moore’s Introduction to English Canon Law (3rd edition 1993) suggests that nowadays incumbents do not bother to claim the Easter collection, ‘since such offerings merely result in a pro tanto reduction in the [stipend] paid by the diocese’ (p.92).  Thus the stipend is simply reduced by the amount of the Easter collection money so the incumbent is no better off.

The Terms of Service Regulations 2009 confirm that an incumbent’s right to be paid the national minimum stipend is not absolute, but is subject to ‘any [other] income received by the office holder from other sources which is related to or derived from the duties of the office’ (reg 11.1).

Nevertheless the question of the Easter collection may still be relevant, even if incumbents no longer benefit personally.  A large sum of donated money is at stake.  If the incumbent makes a purported covenant or assignment of the Easter collection (to the diocese or elsewhere), this will be invalid if he is not entitled to the money in the first place.  (Nemo dat quod non habet).  Likewise, any decision on the allocation of the money, taken under the powers conferred by the 1956 Measure, may be flawed if it is influenced by the mistaken belief that the incumbent has a legal claim on it.

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 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.