A Defence of the Public Worship Regulation Act 1874

Although the 1874 Act singularly failed to live up to its title, it did introduce one reform that has endured to the present day.  By s.7, it combined the 3 most senior judicial offices of the Church of England in a single officeholder

(1) the Dean of the Arches, the Archbishop of Canterbury’s provincial judge

(2) the Auditor, the Northern equivalent of the Dean and

(3) the Master of the Faculties, the official who exercises the Archbishop of Canterbury’s special faculty jurisdiction over both English Provinces, to grant licences to marry and to practice as a notary public.

As a result of the Act these 3 offices, like the Trinity, are 3 in 1 and 1 in 3.  The Dean of the Arches and Auditor (and Master of the Faculties) is in effect the Lord Chief Justice of the Church of England.  Ms Morag Ellis KC is the current holder of the 3 combined offices.

The Public Worship Regulation Act was a response to illegal ritualism, i.e illegal liturgical practices.  Such practices involved 

(1) ornaments of worship – whether of the fabric of the church (or churchyard), the movable furniture therein, or the vestments worn by officiating ministers.  In 1874, these were governed by the famous Ornaments Rubric of the Book of Common Prayer.

(2) rites and ceremonies.  Rites are the words used in public worship.  Ceremonies are liturgical acts or gestures.  These were likewise governed by the rubrics and other directions contained in the Prayer Book.

The purpose of the Act was therefore to uphold the rules of public worship laid down by the Book of Common Prayer (cf.s.8). 

Before the 1874 Act, ritualist clergy were prosecuted under the Church Discipline Act 1840.  However, such prosecutions were very expensive and could last several years.  The primary object of the 1874 Act was therefore to reduce expense and delay.  (This was the reason for combining the senior judicial offices in a single judge.)  However, the Act was also intended to conciliate the offending ritualists.

The 1874 Act did not repeal the 1840 Act.  It merely provided an alternative procedure (cf. s.5). An incumbent whose case was decided under the 1874 Act could not be proceeded against under the 1840 Act (or vice versa) (1874 Act, s.18).

The great difference between the Church Discipline Act and the Public Worship Regulation Act is that, while the former was criminal and penal in character, the latter provided a civil procedure.

The Public Worship Regulation Act sought to decriminalise ritualism, and treat it as a civil wrong instead.  Its purpose was not to punish past offences but to secure future compliance. 

It is, of course, particularly ironic that a law intended to decriminalise ritualism resulted in ritualist clergy being sent to prison.

Thus the 1874 Act provided that ‘Proceedings taken under this Act shall not be deemed to be such proceedings as are mentioned in the [Church Discipline] Act, s.23’, i.e that such proceedings are not a ‘criminal suit or proceeding’. The Act deliberately eschewed the language of criminal law and clergy discipline.  Hence the use of the word ‘regulation’, rather than ‘discipline’.  The long title of the Act refers only to ‘the better administration of the laws respecting the regulation of public worship’. 

Proceedings under the 1874 Act were commenced by a representation, not a charge (s.8).

The 1874 Act discouraged Low Church legal activism against ritualists by limiting the class of potential complainants.  Only the incumbent’s local archdeacon, his churchwarden(s) or any 3 male parishioners could make a ‘representation’ against him (s.8).  Complaints against cathedral clergy could be made by any 3 male inhabitants of the diocese (the cathedral being the parish church of the diocese).  Bishops were not subject to proceedings under the 1874 Act.

The Act also excluded old grievances.  No representation was allowed in respect of an illegal adjustment of the church fabric, if this had been completed more than 5 years previously.  Alleged illegal practices had to have occurred no more than 12 months previously.

The bishop could veto proceedings on a representation ‘after considering the whole circumstances of the case’ (s.9).  This meant that he could stop proceedings on grounds of mere expediency, even if the incumbent clearly had acted illegally.

The Act also provided a form of arbitration.  If he did not veto the proceedings, the bishop was required to invite both the incumbent and the complainant(s) ‘to submit to the directions of the bishop touching the said representation, without appeal’.  Thus the bishop could settle the dispute on a consensual basis.  The bishop’s decision, like an arbitration award, bound only the parties to the dispute.  It was not a binding judicial precedent.

The bishop’s arbitration function under the 1874 Act echoed his function in the Book of Common Prayer

‘to appease all such diversity … and for the resolution of all doubts, concerning the manner how to understand, do, and execute, the things contained in this Book: the parties that so doubt, or diversely take any thing, shall alway resort to the Bishop … who by his discretion shall take order for the quiet and appeasing of the same …’ (Preface).

The Act also permitted the parties to agree a special case, i.e an agreed statement of facts, for judicial determination of the correct law, thereby avoiding the need for a contested trial.

Only if these options were declined by the parties did the case go to a full trial, with pleadings, evidence and legal submissions. The Dean of the Arches and Auditor, who is described simply as ‘the judge’ in the 1874 Act, ‘shall pronounce judgment on the matter of the representation’ (s.9).  There was a right of appeal to the Privy Council.

The only remedies that could be awarded if a ‘representation’ was upheld were

(1) a monition or warning to the incumbent to desist from unlawful ritualism in future and / or

(2) a faculty to remove an unlawful ornament (cf.s.14).

If a warning (1) went unheeded the incumbent could be inhibited, i.e suspended from office.  Thus inhibition / suspension was not a remedy per se.  Its purpose under the 1874 Act was to enforce a monition. 

A suspension would be lifted upon the incumbent giving a written undertaking ‘to pay due obedience to [the] monition or order’ (s.13).  A suspended incumbent was allowed up to 3 years to submit.  Only then could he finally be removed from office altogether.

The Public Worship Regulation Act probably has the worst reputation of any modern ecclesiastical legislation.  It is argued that this is undeserved.  Probably very few people have actually read the Act.  Its provisions seem perfectly fair and reasonable, with nothing that is obviously objectionable.  The text of the Act gives no clue as to the controversy that it inspired.  Its moderation is in dignified contrast to the crass intransigence of the ritualists.

The fatal flaw in the Act was its naïve assumption that clergymen – of all people – would obey the law.  They did not.

That is why they had to be sent to prison.  There is no reference to imprisonment in the 1874 Act itself.  As mentioned, the Act provides no sanctions more severe than warning and suspension from office.  But the ritualists ignored these, and persisted with their illegal practices.  The court observed in the case of Serjeant v Dale that ‘Mr Dale [the ritualist] from first to last took no notice of the proceedings’ (1877) 2 Queen’s Bench Division 558 at p.561).

Mr Dale was therefore imprisoned for contempt of court, not for illegal ritualism per se.  However, this important distinction may not have been widely appreciated.

Nor was the contempt of court entirely passive.  The Reverend Mr Tooth was only incarcerated after he and a gang of supporters had physically obstructed the clergyman sent by the bishop to officiate in his place.  Once the obstruction was overcome, and the replacement clergyman safely installed, Mr Tooth was released: ‘let the order for his discharge be drawn up at once’ (Hudson v Tooth (1877) 2 Probate Division 125 at p.140).

Owen Chadwick relates that a grand total of 5 clergy were imprisoned for contempt:  The Victorian Church, vol 2 (1970) p.348.  The Reverend Mr Green’s imprisonment lasted over 18 months (‘They did not know how to get Green out’).  The others were released after a few weeks.  The aforementioned Mr Dale and Mr Tooth later had their committals quashed on technical grounds.

Why did the ritualists ignore the proceedings against them, even at the cost of imprisonment?  Chadwick suggests that ‘in their eyes a non-Anglican Parliament had no more right than the Emperor of Japan to determine [their conduct of public worship]’.  The ritualists were martyrs for the Church against the infidel secular state.

No doubt they convinced themselves of that.  However, the case for the ritualists’ martyrdom is not compelling.  Secular authority was not imposing some newfangled regime of public worship on the Church of England.  On the contrary, it sought to uphold the Book of Common Prayer, the very essence of Anglican tradition.  The 1874 procedure was indeed an Act of Parliament.  But Parliament passed the Act at the request of the bishops.  The then Archbishop of Canterbury, Archibald Campbell Tait, even drafted the original Bill himself (Oxford Dictionary of the Christian Church).  As mentioned, the Act encouraged ritualists to submit to the judgment of their bishop, an ecclesiastical authority.

Lord Selborne observed that the ritualists ‘claimed all the privileges of Establishment, while at the same time they repudiated all its conditions’ (Parliamentary Debates, Series 3, vol 219, col 949).  Their rejection of episcopal authority as well as parliamentary authority was inconsistent with a  Catholic belief in the Apostolic Succession of bishops.

(The response to the Public Worship Regulation Act reinforces the conclusion that so-called ‘Anglo-Catholic’ ritualism is neither Anglican nor Catholic, inasmuch as it repudiates both Anglican tradition and Catholic teaching.  Ritualism is just that – an exaggerated love of ritual.)

The ritualists were a small and eccentric minority.  However, their ‘martyrdom’ under the Public Worship Regulation Act was a characteristically exaggerated response to a real issue.  In the 19th century, the Anglican theocracy created at the Reformation was gradually replaced by the modern secular state.  This meant that the Church of England was governed by legislators and judges (i.e the Privy Council) who were not even nominally members of the Church.

The radical solution to this issue was Disestablishment, i.e complete severance of the link between Church and state.  Conservatives sought autonomy, a measure of ecclesiastical self-government, but maintaining the link between Church and state (with its concomitant privileges, of course).

It might be argued that the Church of England already enjoyed a measure of self-government, through the system of ecclesiastical courts.  However, even the Church courts were affected by 19th century secularisation.  Doctors’ Commons, the ecclesiastical inn of court since the 16th century, was closed in the late 1850s-early 1860s.  Sir Robert Phillimore DCL, original author of the famous commentary on ecclesiastical law, was the last inhabitant of Doctors’ Commons to officiate as Dean of the Arches.  (He was himself the son of another Doctor, Joseph Phillimore.)

When the 1874 Act was passed, Sir Robert and the then Auditor both retired, in order to facilitate the combination of their respective offices.  The first holder of both offices, the first Dean of the Arches and Auditor, was Lord Penzance. 

Lord Penzance was a retired secular judge and barrister, with no connection to Doctors’ Commons.  The Dictionary of National Biography suggests that he was a man of liberal sympathies, ‘concerned with issues of social change.  In his maiden speech [in the House of Lords] he justified the Disestablishment of the Church of Ireland …’.  This may not have endeared him to High Churchmen.  It is ironic that a supporter of Disestablishment became instrumental in sending people to prison for rejecting ecclesiastical authority.  (The way of the liberal is extremely hard!)

Apologists for the Public Worship Regulation Act correctly pointed out that Lord Penzance had the same function as his predecessors, and presided over the same courts.  However, the Church courts underwent a profound cultural change in the mid-19^th century, and the 1874 Act drew attention to this.  Ecclesiastical law ceased to be a discrete profession with its own particular body of learning and custom.  Ecclesiastical judges, like Lord Penzance, were now mere secular lawyers who happened to go to church.  And the failure of the 1874 Act did nothing to improve the reputation of ecclesiastical law and the Church courts.

The convocations were therefore the only credible vehicle for ecclesiastical self-government.  Suppressed in the early 18^th century, they were revived about the same time that Doctors’ Commons was closed down.  Chadwick relates that the practice began of proposed ecclesiastical legislation being debated by the convocations before being presented to Parliament (p.361).  Thus the failure of the Public Worship Regulation Act produced the embryo of the modern legislative procedure codified by the Church of England (Assembly) Powers Act 1919.

Phillimore suggests that the Public Worship Regulation Act was already a dead letter by the end of the 19^th century (Ecclesiastical Law, 2^nd edition 1895, p.1036).  A royal commission report of 1906 recommended repeal.  However, the Act was not repealed until as late as 1963, by the Ecclesiastical Jurisdiction Measure, s.87.

It was easier to criticise the Public Worship Regulation Act than to replace it.  A revised Book of Common Prayer was controversially rejected by Parliament in the 1920s.  The law that currently regulates public worship, the Worship and Doctrine Measure, was only passed as recently as 1974, a whole 100 years after its unfortunate predecessor.

Canon B5 and the Prayers of Love and Faith

Legal Office Note, GS Misc 1339, January 2023

The Note discusses certain liturgical Prayers, described as ‘Prayers of Love and Faith’, which have been commended by the House of Bishops for use with same-sex couples.

Canon B5 regulates ‘the discretion of ministers in conduct of public prayer’.  It provides that ‘all forms of service [i.e liturgical prayers] used … shall be

[1] neither contrary to,

[2] nor indicative of any departure from,

the doctrine of the Church of England …’ (canon B5(3)).

The Church of England’s doctrine opposes same-sex relationships in 2 respects. It asserts that

(1) ‘Marriage is in its nature a union … of 1 man with 1 woman’ (canon B30(1)).  This is ‘the teaching of our Lord, affirmed by the Church of England … in the Book of Common Prayer’ (B30(2)) and

(2) the baptismal duty of every Christian is ‘to keep my body in chastity’ (Book of Common Prayer, Catechism).

The Legal Office ‘has carefully examined’ the commended Prayers.  Its Note addresses both the doctrinal difficulties:

(1) The Prayers ‘recognise that the couple’s relationship has been marked by their entering into a particular civil status … regarded by the State as ‘marriage’ (para 8).  However, recognising the status is not the same as blessing it. The Prayers ‘do not bless civil marriages (or civil partnerships)’ (para 4).

(2) ‘A sexual relationship is not inherent in a same-sex marriage, any more than it is in a civil partnership.  The draft Prayers contain no implication that what is being celebrated or blessed is a sexual relationship … they are simply silent on that point’ (para 9). Silence is not approval.

For these reasons, the Legal Office concludes (most fortunately) that the proposed Prayers do not depart from the Church’s doctrine, and are therefore lawful under canon B5(3)).

Thus the Legal Office’s view is that the Prayers are not offered either for

(1) the contractual relationship between the same-sex couple – whether this takes the form of a ‘marriage’ contract, a civil partnership agreement or a ‘covenanted friendship’ (cf para 4) or

(2) any sexual relationship between the couple.

This raises the question – what is the point of the Prayers at all?  What are they offered for, if not for the contractual and sexual relationship between the couple?

The Note concentrates much more on what the Prayers do not bless, than on what they do bless.  It suggests, rather tersely, that ‘any blessing is of the couple and the good in their relationship’ (para 4).  It does not expand on what this ‘good’ is.  Presumably it refers to ‘the mutual society, help and comfort’ (to use the language of the Prayer Book) that is possible in a same-sex relationship.

So the Note identifies 3 aspects of a same-sex relationship

(1) contract

(2) sexual activity (if any) and

(3) ‘the good in [the] relationship’.

The proposed Prayers are offered only for (3), not (1) or (2).

This, of course, implies that the 3 possible aspects of the same-sex relationship are discrete and separable.  It is possible to bless (3) without blessing (1) or (2).

It may be instructive to compare the Legal Office’s Note with a similar Roman Catholic document issued by the Congregation for the Doctrine of the Faith, or ‘CDF’ for short.  (Perhaps the Legal Office is the nearest Anglican equivalent of the CDF!)  The CDF Note was published in February 2021, almost exactly 2 years ago now, with the express approval of the Pope.

Unsurprisingly, the CDF reached the opposite conclusion from the Legal Office.  It held that the Church does not have the right to bless same-sex relationships.

The CDF agrees with the Legal Office about the possible good in a same-sex relationship.  It acknowledges ‘the presence in such relationships of positive elements, which are in themselves to be valued and appreciated’.

However, the CDF disagrees with the Legal Office about the separability of the good in a same-sex relationship, i.e aspect (3) above, from aspects (1) and (2).  On the CDF’s view it is not possible to bless (3) without also blessing (1) and (2).  A liturgical blessing of a same-sex relationship must either bless the totality of the relationship (including its contractual and sexual aspects) or none of it.

Thus a liturgical blessing of a same-sex relationship ‘would constitute a certain imitation or analogue of the nuptial blessing’, even if this is not intended.  The Note quotes from a document issued by the present Pope which states unequivocally that ‘there are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God’s plan for marriage and family’ (Amoris Laetitia, para 251).

Acknowledging the good in a same-sex relationship does not mean ignoring the sexual aspect of such a relationship: ‘it is not licit to impart a blessing on relationships … even stable, that involve sexual activity outside of marriage’.  Monogamy is preferable to promiscuity. But it is not the same as chastity.

Thus the CDF implicitly rejects the contention that a sexual relationship is ‘not inherent’ in a same-sex contract, i.e is not characteristic of such contract, as the Legal Office suggests.  Of course it is possible to have a same-sex contract with no sexual activity, just as it is possible to have an unconsummated marriage.  But it is going too far to suggest that sexual activity is not characteristic of a same-sex contract. 

The CDF Note also draws attention to the difference between the Church’s liturgical function and its pastoral function.

The Legal Office refers to ‘blessing … the couple and the good in their relationship’ (para 4).  This effectively identifies the couple with their relationship.  The CDF, by contrast, asserts ‘the fundamental and decisive distinction between persons and the [same-sex] union’. 

The liturgical function cannot separate out the good aspect of a same-sex relationship from its other aspects, and bless that in isolation.  However, the pastoral function is more subtle and flexible than the liturgical function.  The pastoral function can, and should, acknowledge and encourage the good in such relationship.

Thus the CDF Note observes that ‘pastors are called to welcome with respect and sensitivity [homosexual] persons … and … find the most appropriate ways, consistent with Church teaching, to proclaim to them the Gospel …’.

Liturgy is, by definition, public.  (The very word ‘liturgy’ originally meant ‘public function’.)  As its title makes clear, canon B5 is concerned with the ‘conduct of public prayer’.  Ecclesiastical law does not, and realistically cannot, regulate private prayer.  The whole point of these ‘Prayers of Love and Faith’ is that they are, or will be, public, used in public, as part of the Church’s liturgy.

If the public character of liturgy is understood, the true meaning of canon B5(3), as quoted above, becomes clear.  Canon B5(3) imposes a 2-stage test of the liturgy that it authorises

(1) doctrinal soundness and

(2) public perception.

Hence the requirement of canon B5(3), in [2] above, that prayers must not be ‘indicative of any departure from … doctrine’.  It is not sufficient that they are merely not contrary to doctrine.  Prayers may still confuse or mislead the public about the Church’s doctrine, even without actually contradicting that doctrine.  Canon B5(3) is worded to prevent this.  Like justice, sound doctrine must not only be done, it must be seen to be done – by Anglican lay worshippers, and by persons of any religion and none.  Not just by the Legal Office.

It is argued that the Legal Office Note fails to understand and apply the 2-stage test imposed by canon B5(3).  It effectively treats the 2 stages as one and the same.  The Note asserts more than once that the commended Prayers are ‘not indicative’ of any departure from doctrine.  But not indicative to whom?  The Note neither asks nor answers this question.  It fails to consider the public perception of the commended Prayers.

This failure to apply B5(3) correctly means that the Legal Office’s conclusion on the commended Prayers is flawed.  Even if it was possible to accept that the Prayers do not actually contradict Church doctrine, it is still necessary to consider how they will affect the public perception of that doctrine.  

The Double Meaning in LGBT Ideology

‘in the womb of the Blessed Virgin, of her substance … 2 whole and perfect Natures, that is to say, the Godhead and Manhood, were joined together in 1 Person, never to be divided, whereof is one Christ …’ (Article 2, ‘Of the Word or Son of God, which was made very Man’)

Is the Church of England at last about to surrender to LGBT ideology? The Church Times has reported that ‘the bishops acknowledge that simply to restate the existing ban on same-sex blessings or marriage in church is not an option’. Accordingly ‘formal proposals will be presented to the General Synod in February 2023’, not long now (reported 2nd November 2022). Several bishops are already flying white flags.

The surrender has already been given on the other side of the Severn. Last year the Church in Wales amended its Constitution to authorise the liturgical blessing of same-sex relationships. Now the present author’s beloved parish church – almost a second home since childhood, and a constant place of refreshment, light and peace – is awaiting the imminent arrival of a new incumbent who, according to the official announcement, ‘lives with his partner Jim’, and proudly advertises this arrangement by wearing a wedding ring. (Website accessed today.)

It is no use being nostalgic, of course. Political activism is not an option. Nor does ecclesiastical law help much. The purpose of this blogpost is merely to

(1) examine the seemingly unstoppable phenomenon of LGBT ideology and

(2) ask what, if any, intellectual response to it is now possible.

The Failure of Pan-Anglicanism

The only significant attempt to halt the advance of LGBT ideology in the present century was a policy that may conveniently be labelled ‘Pan-Anglicanism’, which sought a closer integration of the member Churches of the Anglican Communion. The idea was to oppose, or at least balance, Western LGBT ideology with the cultural values of non-Western Churches which were strongly resistant to it.

The Lambeth Conference of 1998 passed a robust resolution ‘rejecting homosexual practice as incompatible with Scripture … the legitimising or blessing of same sex unions [and] ordaining those involved in same gender unions’. However, such resolutions have no authority other than the personal opinion of the bishops who vote for them.

The then Archbishop of Canterbury therefore appointed a high-powered commission, which was tasked with seeking ‘the highest degree of communion that may be possible’ within the Anglican Communion (mandate). One of the members of the commission was Professor Norman Doe, the leading commentator on ecclesiastical law.

The commission proposed a pan-Anglican Covenant, to be ratified by the member Churches, in order to ‘make explicit and forceful the loyalty and bonds of affection’ (118) (i.e an application of tough love!). The Covenant was to be the means of strengthening the Anglican inheritance on the dubious basis that the member Churches enjoyed only a limited autonomy, rather than absolute independence of each other.

Professor Doe was rewarded for his services with a Lambeth doctorate in civil law (DCL). However, the Anglican Communion Covenant itself got nowhere. The LGBT lobby, of course, saw the threat that it represented to them, and resisted it articulately and successfully. There was also a general reluctance among member Churches to compromise their independence.

Pan-Anglican opposition to LGBT ideology forced the postponement of the Lambeth Conference that was due to take place in 2018. The coronavirus situation necessitated a further postponement. The Conference finally met this year, 2022. However, Professor Doe, the erstwhile Apostle of Pan-Anglicanism, failed to persuade even his fellow legal advisers to agree on a definition of marriage. The latest edition of Principles of Canon Law Common to the Churches of the Anglican Communion (2022) lamely admits that ‘it has not been possible to discern a common principle of canon law on who may marry whom’ (p.97)

The last vestige of Pan-Anglican policy now seems to consist of trying to persuade non-Western Churches that, in English law, a civil partnership agreement is something completely different from a marriage contract. Just 3 weeks ago, the present Successor of St. Augustine authorised a response to criticisms of his new Cathedral Dean, which referred to ‘international confusion about the nature of … civil partnerships … civil partnerships are not recognised as marriage’ (Anglican Communion News Service, 21st October 2022). Wedding rings notwithstanding.

This is disingenuous, to say the least. There is no substantive difference between civil partnership and marriage. The only difference concerns the terminology and formalities involved. It is argued that the intention of Parliament in passing the Civil Partnership Act was to create a same-sex marriage contract, but not to call it marriage, because of a political calculation that public opinion was not yet ready (this was nearly 20 years ago now) to accept same-sex marriage in terms.

Jacqueline Humphries provides a most helpful analysis of this issue in ‘The Civil Partnership Act, Same-Sex Marriage and the Church of England’ (Ecclesiastical Law Journal, January 2006). As she says ‘It is clear that, culturally, civil partnerships are being seen as gay marriage’. Indeed they are. Public perception accords with parliamentary intention. Pace the Archbishop, there is no ‘international confusion’ on this point.

The Trojan Horse of Traditionalism

Anglican tradition should not be difficult to identify. It is found in the 3 historic formularies of the Church of England – the Book of Common Prayer, the Ordinal and the 39 Articles of Religion. These date from the 16th and 17th centuries, the early modern period.

Anglo-Catholic ritualism, by contrast, originated centuries later, in Victorian times. It is romantic and aesthetic, driven by devotional practices and devotional materials that are pleasing to the heart, with elaborate ceremonial, ornate decoration and rich colours to please the eye, fine music to delight the ear, fragrant incense to pleasure the nose.

There is nothing inherently wrong with any of these things, of course. The heart and the senses do have their rightful place in religion and in worship. Anglo-Catholic ritualism has probably done much to improve the quality of Anglican worship.

However, there is an ever-present danger of exaggeration. The heart and the senses must not become divorced from authority and reason. Religion that ignores authority and reason, and that exists only in the romantic imagination and the senses is, frankly, bad religion (if it can be called religion at all).

Ritualism has never had an easy relationship with authority. Its refusal to comply with the 1662 regime of public worship has, of course, provided a rich source of material for the study of ecclesiastical law.

Another, hidden, source of tension with authority was the undeniable presence within ritualism of a homosexual culture (or sub-culture). Resistance to the liturgical regime of the historic formularies was accompanied by a latent resistance to the moral regime that they imposed.

It is ironic, therefore, that Anglo-Catholic ritualism came to be seen as ‘traditionalist’. There are 2 reasons for this

(1) its (unsuccessful, and now largely abandoned) resistance to female ordination and

(2) its (apparently successful) resistance to liberal Biblical exegesis. Academic theologians might deny the Virgin Birth, but pilgrimages to Walsingham kept increasing.

A commentator once lightly characterised ritualism as ‘hairsplitting and hypocrisy’. However, in the present century the hypocrisy has been absolved and redeemed by ideology. The gay culture in ritualism is no longer half-hidden behind clouds of incense. Its latent resistance to traditional morality has become overt. It now asserts a contrary, LGBT morality.

Ritualism has therefore been something of a Trojan Horse to tradition. Anglican tradition repudiates Catholic teaching on the eucharist, but affirms Catholic teaching on marriage. (The Prayer Book marriage service is the most Catholic part of the formularies, being taken almost verbatim from the mediaeval Sarum rite.) Anglo-Catholic ritualism affects devout adherence to Catholic teaching on the Eucharist, while repudiating Catholic teaching on marriage. It thereby repudiates both Anglican tradition and Catholic teaching. Under the influence of LGBT ideology, the divorce of romantic ritualism from authority (and from reason) has become absolute.

Traditionalists who oppose LGBT ideology – perhaps of a certain age now – face the uncomfortable reality that the momentum for the ideology has come largely from their own side. (Certainly more than from heterosexual liberal exegetes!) There have been individual secessions to the Roman Catholic Church, and to breakaway Anglican Churches. Otherwise the only course for traditionalists is to follow the Archbishop of Canterbury in pretending that civil partnership is substantively different from same-sex ‘marriage’.

Scripture, Tradition and Reason

Biblical literalism seems to offer the only intellectual resistance to LGBT ideology at present. It may have enthusiastic and articulate adherents. But it is a blunt instrument, and also a rather weak one. It is, frankly, simple-minded. When read in isolation, the Bible is notoriously capable of meaning almost anything. One passage of Scripture can always be opposed by another. It can be plausibly explained away. A harsh-sounding Scriptural reference can be attractively countered by a pleasant-sounding abstraction.

Tradition can offer no resistance, and not only because of the treachery of its false friend, ritualism. Its thought and language come from a different age, of course. The sublime English prose of the Prayer Book is still widely appreciated, but modern Anglicanism is very ignorant of its own tradition. There seems to be almost no systematic study of the historic formularies (perhaps even less than of ecclesiastical law). The historic formularies are treated as just that – of historical interest only.

As mentioned, Anglican tradition is, in part, inherited from the Catholic Church, with which the Church of England shares the Sacrament of Baptism and the historic episcopate. Can ecumenical dialogue do anything to save the situation?

The record here is not encouraging. In the 20th century, several explicit papal warnings against female ordination were ignored. In 2009 the then Pope established Anglican Ordinariates (in this country and overseas) as a bridge across the Tiber, but to little effect. Ecumenists (and their superiors) now seem positively to avoid controversial subjects. The late Father Edward Yarnold SJ, a shrewd observer of Anglican-Roman Catholic interactions, noted that they suffer from ‘the danger inherent in bilateral dialogues, that the ecumenical left hand may not know, or may ignore, what the right is doing’ (Anglican Orders (1996), p.70).

So reason alone is left. It has its own limitations, of course. But it can penetrate further than Biblical literalism and traditionalism. The latter can only address the effects or symptoms of the LGBT ideology (e.g same-sex marriage or transgenderism). Reason can address the ideology itself. It can explain

(1) what the ideology is and

(2) why it is not compatible with the Christian religion.

What is LGBT Ideology?

It is important to begin an analysis of LGBT ideology by admitting that IT IS PARTLY TRUE. (It is another weakness of Biblical literalism that it can appear to deny that there is any truth in the ideology.)

But if LGBT ideology is partly true, reason dictates that it is partly false.

LGBT ideology consists essentially of the assertion of rights – LGBT rights, gay rights. What does this mean, exactly? It is argued that the assertion of ‘LGBT rights’ or ‘gay rights’ is ambiguous. It carries a double meaning, as follows:

(1) it could mean simply that persons of particular sexual orientation, or gender orientation, have exactly the same rights as all other persons have. Equal rights with everybody else. Equal rights of reputation, privacy, freedom of association and freedom of expression.

If that was the only meaning of ‘LGBT / gay rights’ there would be no difficulty. It is, of course, true.

The problem is that this is not the only meaning of LGBT / gay rights. There is a second, quite different meaning

(2) that a sexual orientation or gender orientation is itself a source of rights, that it is productive of rights. That a sexual orientation or gender orientation, of itself, confers rights on the person who experiences it.

The rights purportedly conferred by sexual or gender orientation include the right to ‘marry’ a person of the same sex, the right to engage in genital activity with such person, and the right to choose or change one’s gender.

This second meaning of LGBT / gay rights (2) is certainly not true. The false rights asserted by (2) must therefore be distinguished from the genuine rights asserted by (1).

Thus LGBT ideology does indeed contain an element of truth (1). But, unfortunately, behind the element of truth, there is a lie (2). It is this lie that separates the ideology from the Christian religion.

It is possible to identify a certain structure to LGBT ideology. The element of truth in it (1) is used to protect and conceal the falsehood (2). The lie at the heart of the ideology is concealed by a protective veneer of truth. This means, of course, that it is difficult to oppose (2) without appearing to oppose (1).

It is also possible to see a resemblance between LGBT ideology and romantic ritualism. The LGBT assertion of sexual or gender orientation as a source of rights is in harmony with the tendency of ritualism to assert the sovereignty of the heart and the senses.

Why is LGBT ideology not compatible with the Christian religion?

Biblical and traditionalist approaches to the phenomenon of LGBT, by addressing only its symptoms or effects, are largely concerned to explain only what is wrong with it. This inevitably fixes them with an unattractively negative, judgmental character.

What is right or wrong is ultimately determined by what is true or false. By addressing the LGBT ideology itself, not just its effects, reason can explain what is true and false, not merely what is right or wrong.

Morality is undeniably concerned with (right and wrong) behaviour, but it is much more than that. Christian morality is the doctrine of Man himself. Just as Christianity has a particular belief about God, so it has a particular belief about Man.

Our analysis has indicated 2 objectionable characteristics of LGBT ideology

(1) it contains a lie and

(2) it misuses truth by using it to conceal or protect the lie.

Any lie must be incompatible with true religion. Christian witness is like witness in court – to the truth, the whole truth and nothing but the truth. It is not about half-truth, nor about negotiating some kind of bargain between truth and falsehood.

Does the lie in LGBT ideology matter much? It engages the God-given constitution of Man himself. It denies the constitution of the human person as male and female. It denies the constitution of marriage as a bodily union or ‘one flesh’ (see blogpost ‘The Constitution of Marriage: Consensus-Copula’). It denies the God-given nature of both gender and marriage. If gender and marriage are determined only by individual orientation, they cease to be God-given and become man-made instead.

By engaging the God-given constitution of Man, LGBT ideology also engages Man’s relationship with God. God not only created Man in His own image, He Himself became Man.

This is powerfully and beautifully expressed by Article 2, quoted above. Jesus was, and is, both God and Man. To follow Jesus is therefore to accept the truth about both, not just about the one or the other. God and Man cannot be divorced from each other. They stand or fall together. It is no good asserting the truth of the Virgin Birth while denying the truth about marriage.

It follows from this that an individual who patterns his lifestyle on LGBT ideology, or who appears to do so, is not an appropriate person to teach the Christian religion, or lead a Christian community. And a vicar who does not tell the truth about Man cannot tell the truth about God.

Apostolicae Curae 1896: A Vicar is not a Catholic Priest

This year marks the 125th anniversary of the famous (or infamous) papal letter concerning Anglican Orders. The centenary in 1896 was commemorated by an impressive collection of essays contributed by distinguished Anglican and Roman Catholic commentators, and edited by R William Franklin (‘the Centenary Essays’). This publication included English translations of both Apostolicae Curae and Saepius Officio, the Anglican response thereto.

Pope Leo XIII

Gioacchino Vincenzo Pecci (1810-1903) was elected Pope in 1878, and took the name Leo XIII. The choice of name presaged a confident and ambitious policy of advancing the position of the Church – and the Pope – in the hostile and atheistic modern world.

Despite physical frailty, he reigned for a quarter of a century (nearly as long as St. John Paul II) and lived longer than any of his predecessors. His aristocratic dignity, personal austerity, immense learning and political wisdom commanded the respect of his contemporaries. (Perhaps helped by an uncanny physical resemblance to Voltaire.) He easily outshone the unimpressive Head of the newfangled Kingdom of Italy. The latter grumbled peevishly that ‘[people] … come to see him, not me. It is he who still rules in Rome; I have only the edge of the chair to sit on’ (D.A Binchy, Church and State in Fascist Italy, OUP 1941, p.34).

Leo XIII’s greatest encyclical, Rerum Novarum (1891), on the treatment of workers and their families, is moving to read and the cornerstone of modern Catholic social teaching:

‘To defraud anyone of the wage due him is a great crime that calls down avenging wrath from Heaven … workers are not sufficiently protected against injustices and violence … their property, being so meagre, ought to be regarded as all the more sacred’ (para 32).

He also shaped the intellectual life of the modern Church in 2 encyclicals

(1) Aeterni Patris (1879) concerned the study of theology, and the correct relationship between faith and reason. St Thomas Aquinas is commended as a role model for scholars, but the scholastic method is not compulsory. On the contrary, any scholastic thesis of ‘too great a subtlety’, or which is ‘improbable’, should not be followed (para 31).

(2) Providentissimus Deus (1893), on the Bible and the ‘historical’ method of interpretation. Biblical accounts of natural events may be accepted as ‘figurative’ and not literally true. But the Bible must be studied holistically. Heresy is essentially the result of reading particular Biblical passages out of their context. In studying the Bible, scholars should ‘by all means … make use of … apposite erudition of an external sort’ (para 13), and even non-Catholic commentaries may be studied, though caution is required (para 15).

Another 2 encyclicals should be required reading for all students of ecclesiastical governance

(1) Immortale Dei (1885), on the relationship of the Church to international law, and

(2) Satis Cogitum (1896), which explains the Apostolic constitution of the Church, and the relationship between the Pope and the bishops (and anticipated the teaching of the Second Vatican Council on this subject).

Leo XIII’s interactions with ‘the noble people of England’, as he described them, were generally happy. One of his first acts as Pope was to confer the Red Hat on Newman, vindicating the latter’s reputation after decades of Roman suspicion and hostility. As a young diplomat he had visited London and been received by Queen Victoria. As Pope he opposed the nationalist cause of Catholic Ireland. (His experience of its anti-clerical Continental equivalents would not have disposed him to favour it.) No doubt grateful for this support, the Queen even signed herself ‘de votre saintete la fidele amie‘, in a letter to him on the Golden Jubilee of his priesthood in 1887 (Binchy, p.33). Shortly before his death, he welcomed her son, King Edward VII, to the Vatican – the first ever meeting between the Successor of Peter and the Supreme Head of the Church of England.

Apostolicae Curae

However, in the context of Anglican – Roman Catholic relations, Pope Leo is now remembered only for his controversial conclusion that

‘ordinations performed according to the Anglican rite have been, and are, completely null and void’ (para 36).

The ‘Anglican rite’ is that contained in the Ordinal, which was first authorised in 1549.

The Pope gave 3 reasons for this withering conclusion:

(1) Custom, ‘the best interpreter of law’ (para 16). His predecessors had always refused to recognise Anglican Orders. Anglican clergy who wish to become Catholic priests were and are required to be ordained again. Yet the Sacrament of Orders cannot be repeated any more than Baptism. Therefore, if Anglican Orders were valid, ‘it was … quite impossible that the Apostolic See should tacitly allow or tolerate such a custom [of reordination]’. The Roman custom of reordination proves that the Anglican rite is not effective to confer the Sacrament.

(2) Intention. The very introduction of the 1549 Ordinal indicated a repudiation of Catholic priesthood. If the Church of England had intended to keep the Catholic priesthood it would have kept the mediaeval ordination rite, not introduced a new rite.

(3) Form. The Anglican Ordinal ‘ha[s] been deliberately stripped of everything which … sets forth the dignity and functions of the priesthood’ (para 27). This means that it lacks the form of the Catholic Sacrament.

In the original 1549 Ordinal, the ordination formula was merely ‘Receive the Holy Ghost’, with no explicit reference to priesthood. The clarifying words ‘for the office and work of a priest’ were only added in 1662, but this came too late to repair the defect of form, and ‘rather proves that the Anglicans themselves had recognised that the first form had been defective and unsuitable’ (para 26).

Saepius Officio

The then Archbishops of Canterbury and York, Temple and Maclagan, replied to Apostolicae Curae with a letter of their own, Saepius Officio (1897), an encyclical addressed ‘to the whole Body of Bishops of the Catholic Church’, rather than to the Pope personally.

Unsurprisingly, they rejected both the conclusion of ‘our Venerable Brother’ (para 3), and his reasons therefor

(1) Custom. The Holy See did not unequivocally reject the 1549 Ordinal during the brief revival of its authority over the English Church in the reign of Queen Mary Tudor (1553-1558). Papal instructions concerning the 1549 Ordinal ‘are imperfectly known’ (para 6). Of the clergy ordained according to that rite ‘some, and perhaps the majority, remained in their benefices without reordination’, though it is conceded that some clergy were reordained (‘how slippery and weak the judgment of the Church of Rome has been in this matter’ – not at all a good interpreter of law).

(2) Intention. Merely reforming the ordination rite does not amount to a repudiation of Catholic priesthood: ‘the intention of the Church must be ascertained … from its … definite pronouncements … not from its omissions and reforms’ (para 8). So far from repudiating Catholic priesthood, the Preface to the Ordinal manifests the intention that ‘these Orders of ministers in Christ’s Church; Bishops, priests and deacons … may be continued … in the Church of England …’ (cf para 20).

(3) Form. The validity of an ordination rite cannot be decided solely by reference to the contemporary Roman rite. Different forms of ordination have been practised at different times and places in the Church’s history, without any suggestion that the ordinations are invalid. Eastern ordination rites differ from the Latin rite, yet they have always been accepted as valid (cf para 20).

Moreover the Roman rite itself has changed over time. The references to priesthood to which the Pope attached such importance were not even Roman in their origin, but ‘Gallican embellishments … [with] added ceremonies borrowed from the Old Testament in order to emphasise the distinction between people and priests’ (para 19). The earliest Roman rite, like the 1549 Ordinal, made no explicit reference to priesthood. The compilers of the Ordinal ‘went back almost to the Roman starting-point’, i.e the early Roman rite was itself a model for the Anglican rite.

Fortified by these arguments, Their Graces delivered a robust retort to Leo XIII:

‘in overthrowing our Orders, he overthrows all his own, and pronounces sentence on his own Church’.

(Upon reading Saepius Officio, the Pope is said to have remarked that he wished his cardinals could write such good Latin. But he did not change his mind about Anglican Orders.)

A Century On

Despite the Archbishops’ professed indifference to Apostolicae Curae (‘we are not at all disturbed by the opinion expressed in that letter’ (para 2)), Leo XIII’s rejection of its Orders did touch a raw nerve in the Church of England. According to Paul Bradshaw it prompted ‘a firm desire to make 20th century revisions of Anglican ordination rites impregnable against any further attacks on the same grounds … throughout the processing of drafting [modern rites] the shadow of Apostolicae Curae hung over the drafters’. Apparently the drafters themselves admitted as much (Centenary Essays, p.75).

Apostolicae Curae also seems to have encouraged the involvement of ‘Old Catholic’ bishops in Anglican ordinations. The Old Catholics broke away from the Roman Catholic Church in the 18th and 19th centuries, but their Orders are nevertheless recognised by Rome, and they themselves recognise Anglican Orders. For this reason Old Catholic bishops have been invited to join in the laying on of hands of new Anglican bishops. Apparently all Church of England bishops can now claim an Old Catholic pedigree (p.70).

One Anglican commentator suggested optimistically that ‘the participation of Old Catholic bishops in Anglican consecrations during this [20th] century has meant that there has been a confluence of traditions through the mutual co-consecrations of Anglican and Old Catholic traditions … offer[ing] the Roman Catholic Church an opportunity to place [Apostolicae Curae] against the background of a broader canvas …’ (p.27).

However, Father Edward Yarnold SJ poured scorn on the practice: ‘it presupposes a crude ‘pipeline’ … it would be crassly materialistic to envisage Apostolic Succession as an unbroken chain of physical contact … reaching back to one of the Apostles’ (p.70). He evidently did not think much of Old Catholic bishops, dismissing them as ‘unattached dilettanti … episcopi vagantes‘ (pp.70-1).

Yet for all the Anglican defensiveness, Apostolicae Curae seems to have caused greater difficulty for the Catholic Church itself. It jarred painfully against the heady optimism and friendly engagement of the postwar ecumenical era. A Catholic commentator related that ‘Catholic theologians who have been engaged in ecumenical dialogue with members of the Anglican Communion are now considerably embarrassed by Leo XIII’s negative findings’ (p.123).

Nor is the embarrassment purely social. Modern research, impressively surveyed in the Centenary Essays, seems to vindicate Saepius Officio completely. Leo XIII’s criticisms of the Anglican Ordinal are now apparently destitute of scholarly support.

Thus a Catholic contributor observed of the Centenary Essays that ‘None of these papers has defended the contemporary adequacy of Apostolicae Curae‘s historical reasoning or theological arguments’ (p.123). Another Catholic was particularly critical of his late Supreme Pontiff: ‘Leo XIII was trapped in … a defective theology of tradition … indefinitely delaying the reconciliation of the Churches’ (p.47).

It is therefore not surprising that the suggestion ‘Is it not now time … to reopen the issue of Anglican Orders?’ (p.123) came to enjoy widespread Catholic support (even from some cardinals, apparently).

Papal Teaching Authority

The suggestion may seem plausible, in view of the scholarly consensus. But it faces a fundamental difficulty. Leo XIII was fully aware of the modern intellectual challenges to Catholic teaching (hence his 2 encyclicals mentioned earlier). He knew very well that he would be accused of being out of date and ‘trapped in tradition’. (Such criticisms of papal teaching are nothing new.) Yet in Apostolicae Curae he declared unequivocally that the question of Anglican Orders may not be reopened:

‘the present Letter and the whole of its contents cannot at any time be attacked or impugned on the ground of … any defect whatsoever … it shall be now and for ever in the future valid and in force, and … to be inviolably observed … by all persons …’ (para 40).

Canon law makes clear that Catholic faith demands trust in papal teaching. Canon 752 of the 1983 Code provides that

‘a religious submission (obsequium) of intellect and will is to be given to any doctrine which the Supreme Pontiff … declare[s] upon a matter of faith and morals … Christ’s faithful [must] avoid whatever does not accord with that doctrine’.

The official Latin word obsequium connotes obedience, not mere respect. Canon 754 also obliges the faithful ‘to observe the constitutions and decrees … issue[d] for the purpose of proposing doctrine or proscribing erroneous opinions: [especially] those published by the Roman Pontiff ….’.

So does acceptance of Apostolicae Curae mean retreating into an anti-intellectual papalism? Simply ignore the inconvenient modern research. Rome has spoken, the case is closed. Peter has spoken through Leo. No, that would be both absurd and wrong. Faith must not be divorced from reason (as Leo himself made clear).

Yarnold pointed the way out of the apparent Catholic difficulty (even if he was unaware that he did so), when he asked rhetorically ‘what does it mean to say [Anglican] Orders are invalid?’ (p.73).

This is the right question to ask. Leo XIII’s well-known phrase ‘absolutely null and void’ obviously has a negative and dismissive sound. It would not, presumably, appear in a papal document today. But never mind how it sounds. What does it actually mean?

It is argued that it means simply this: a vicar is not a Catholic priest.

If Leo XIII’s conclusion is understood thus, the difficulties with Apostolicae Curae fall away. Acceptance of it requires minimal, if any, Catholic obsequium. It requires no rejection of modern scholarship. The conclusion does no more than state an obvious – blindingly obvious – fact.

The fact was not obvious in the 1550s. This would explain any Roman inconsistency towards clergy ordained according to the 1549 Ordinal. Even today, of course, it is not obvious to quite everyone. Anglican clergy will say that they are Catholic priests. They are just not Roman Catholic priests. But it can hardly be denied that ‘the noble people of England’, including the majority of faithful Anglican churchgoers, recognise no distinction between ‘Catholic’ and ‘Roman Catholic’.

Apostolicae Curae closed the question ‘is a vicar a Catholic priest?’ (of course not), but not the question ‘why is a vicar not a Catholic priest?’. (Or perhaps, ‘why is a vicar not a priest in the Roman Catholic sense?’.) The modern reaction to Apostolicae Curae suggests that the question is much in need of fresh study.

To answer this question, it is necessary to distinguish between

(1) the constitutional structure of the Anglican ordained ministry (which is indeed Catholic) and

(2) its function (which is not).

To make this distinction, it is in turn necessary to read the Ordinal in the context of the other 2 ‘historic formularies’ of the Church of England, the Book of Common Prayer and the 39 Articles. The Ordinal defines the structure of Anglican ministry. The other 2 formularies define its function.

Anglican Ministry: Catholic Structure, Protestant Function

What is a priest? Jean Guitton (a Catholic) observed that ‘since the Reformation, the idea of the priest [has] been put in question. The whole Reformation centres around that’ (Dialogues (1967), English translation 1968, p.242).

The unique and essential function of the Catholic priest is to represent Christ. The priest is said to act in persona Christi. Canon 901 affirms that the priest ‘in the person of Christ can confect the Sacrament of the Eucharist’.

This function is closely linked to the mystery of the Crucifixion, hence to Christ’s Sacrifice. At the altar the priest re-presents Christ’s Sacrifice upon the Cross. Canon 897 refers to ‘the Eucharistic Sacrifice … in which the Sacrifice of the Cross is for ever perpetuated’. Canon 899 affirms that ‘In [the Eucharist] Christ the Lord, through the ministry of the priest, offers Himself, substantially present under the appearance of bread and wine, to God the Father …’.

The classic Protestant view of this priestly function is that it is blasphemous. A mere man cannot represent God, or mediate between God and man.

The pejorative English word impersonate may bring the Protestant objection into sharp focus. The word implies pretence and deceit. A fraudster impersonates someone else in order to practise a criminal deception. An actor or comedian does so to amuse an audience. To impersonate Christ is both fraudulent and a blasphemous mockery. Thus Western Christendom divided over a function essential to Catholics but intolerable to Protestants.

However, although united in their rejection of the ‘impersonating’ function of the priest, Protestants could not agree on how to reform the Church’s ministry. Some were so distressed by the blasphemy that they sought to eradicate all trace of Catholic priesthood, root and branch. This meant abolishing its structure as well as its function.

The Church of England, of course, declined to follow this fundamentalism. It was more sensitive to history. (Newman once observed that ‘to be deep in history is to cease to be a Protestant’.) The Preface to the Ordinal states that the Orders of bishop, priest and deacon have existed in the Church ‘from the Apostles’ time’. Therefore they should not be abolished but continued.

By retaining the Catholic ministerial structure, the Church of England distanced itself from other reformed Churches. The modern British Constitution bears witness to this. There is much talk now of Scottish independence. This refers to the secular states of England and Scotland, which were united by the Act of Union 1707. However, the ecclesiastical states of England and Scotland, i.e their Churches, have always been strictly independent of each other. Their separation, though little discussed, is a fundamental constitutional principle.

There are no bishops or priests in the Church of Scotland. It has a Presbyterian ministerial structure. The Anglo-Scottish Union was, in part, a religious settlement. Macaulay observed that ‘the nations [of England and Scotland] are one because the Churches are two’.

The Preface to the Book of Common Prayer records the Church of England’s tenacious adherence to its Catholic ministerial structure. The structure was triumphantly reasserted in 1662 ‘upon His Majesty’s [King Charles II’s] happy Restoration’, following ‘the late unhappy confusions’ and ‘usurped powers’ of the Cromwell era. The clarifying words of ordination ‘for the office and work of a priest’ were part of this reassertion.

The 24th August 1662 has been described ironically as ‘the St Bartholomew’s Day massacre’. The Act of Uniformity came into force on that day. All clergy who dissented from it were summarily ejected from their benefices (s.3), (though nobody was literally massacred, unlike the French Protestants in the previous century). Any would-be minister who lacked episcopal ordination was thenceforth ineligible for ecclesiastical preferment, and was also forbidden ‘to consecrate and administer the Holy Sacrament of the Lord’s Supper’ (s.10).

The Church of England undoubtedly bears a closer resemblance to the Catholic Church than do most other Reformed Churches, on account of its ministerial structure. Without this structure, the question of Anglican Orders would never even have arisen. (Certainly there does not seem to be much discussion of the validity of Scottish Orders!)

This resemblance to the Catholic Church was acknowledged by the Second Vatican Council, which met in the 1960s. It held that ‘Among those [Reformed Churches] in which some Catholic traditions and institutions continue to exist, the Anglican Communion occupies a special place’ (Decree on Ecumenism, Unitatis Redintegratio 1964, para 13).

The then Cardinal Ratzinger wrote of the Anglican Communion that ‘the survival of the episcopate retains the fundamental structure of the pre-Reformation Church [which] assures a fundamentally positive attitude to the doctrinal tenets of the pre-Reformation Church’ (Church, Ecumenism and Politics (1987), English translation 1988, p.73).

On this modern Catholic view, then, the Anglican ministry is a sympathetic and respectful reminder of the pre-Reformation priestly function, on account of its Catholic structure. As such, it is a basis for ecumenical hope and engagement. (It also makes possible an imaginative reconstruction of the priestly function in Anglo-Catholic worship.)

Nevertheless, though it retained the Catholic ministerial structure, the Church of England, with the other Reformed Churches, did repudiate the function that originally went with it, that of representing or impersonating Christ.

The Priestly Function and the Formularies

It is true that the Ordinal itself contains no explicit repudiation of the Catholic priestly function. As we have seen, Pope Leo XIII’s arguments for an implied repudiation ran into strong counter-arguments.

However, the counter-arguments suffer from the same weakness as Apostolicae Curae. They consider the Ordinal only in isolation, or in the context of other, and earlier, ordination rites. They ignore the relationship between the Ordinal and its contemporaries, i.e the other Anglican historic formularies.

As canon A4 of the revised canons points out, the Ordinal is ‘annexed’ to the Book of Common Prayer. It must therefore be read in the context of the Prayer Book. And the Prayer Book itself must be read in the context of the 39 Articles.

The words of the 1662 Ordinal ‘for the office and work of a priest’ make clear that the priest is ordained to a function, not to a structure. But they also beg the question. What is the function of the priest? The Ordinal is concerned with ministerial structure. The ministerial function is determined by the other 2 formularies.

These 2 formularies repudiate the Catholic priestly function explicitly and unequivocally. They prove the obvious fact that Apostolicae Curae, whatever its limitations, sought to point out.

The 39 Articles, the most overtly Protestant of the formularies, contains a full-throated denunciation of

‘the sacrifices of Masses, in the which … the priest did offer Christ for the quick and the dead, to have remission of pain or guilt, [are] blasphemous fables and dangerous deceits’ (Article 31).

On the contrary, Christ’s Sacrifice is ‘once made … that perfect redemption … for all the sins of the whole world’. His Sacrifice is ‘finished upon the Cross’. It cannot be re-made or perpetuated by the priest.

In the Eucharist the consecrated bread and wine have ceased to be ordinary food. They are ‘the sign or Sacrament’ of the Body and Blood of Christ (cf Article 29). However, they are not the Body and Blood of Christ per se. ‘The Body of Christ is given, taken and eaten … only after an heavenly and spiritual manner. And the mean whereby the Body of Christ is received and eaten … is faith‘ (Article 28). This again denies the mediating or in persona Christi function of the priest.

The Prayer Book echoes the teaching of the Articles. The Eucharistic Prayer recalls Christ’s ‘full, perfect and sufficient Sacrifice, oblation and satisfaction, for the sins of the whole world’. The Eucharist is ‘a perpetual memory of that His precious death, until His coming again’. The consecrated elements are administered to the communicant with the words ‘feed on [Christ] in thy heart by faith‘.

The final rubric of the Communion Service is even more explicit: ‘the Sacramental Bread [and] Wine remain still in their very natural substances, and therefore may not be adored … for that were idolatry …’.

Thus the communicant who receives the consecrated bread and wine with a faithful disposition thereby receives the Body and Blood of Christ in his heart, by a metaphysical grace.

The 2 Archbishops pointed out in Saepius Officio that the Communion Service does refer to a Eucharistic Sacrifice, notwithstanding the deprecatory reference to ‘the sacrifices of Masses’ in the Articles. The Anglican Eucharist is not merely ‘a bare commemoration of the Sacrifice of the Cross’:

‘[1] we offer a ‘Sacrifice of praise and thanksgiving

[2] then we set forth and reproduce before [God] the Father the Sacrifice of the Cross …

[3] finally we offer the sacrifice of ourselves [‘ourselves, our souls and bodies’] to the Creator … a sacrifice which we have already signified by the oblations of His creatures [of bread and wine]’ (para 11)

So what is the Anglican priestly function, and how does it differ from the Catholic equivalent?

It is argued that the critical difference is that the Anglican priest acts in persona Ecclesiae, in the person of the Church, not in persona Christi. He cannot act in persona Christi, because Christ’s Sacrifice is once for all, finished. Christ is the only true Sacerdos.

There is an Anglican Eucharistic sacrifice, but again, that sacrifice is radically different from the Catholic equivalent. The Anglican priest does 2 things at the altar (or ‘holy table’, as it is officially described in the revised canons):

(1) he recalls the Church, in the presence of God, to the once-for-all Sacrifice of Christ and

(2) he offers the Church’s own sacrifice of praise and thanksgiving, and also its practical self-sacrifice, in response to Christ’s Sacrifice.

Recalling Christ’s Sacrifice, and responding to it. The Anglican priestly function is good and edifying as far as it goes. But it still repudiates the Catholic function. It refers to 2 distinct sacrifices, that of Christ and that of the Church. The Catholic Eucharistic Sacrifice is indivisible, one and the same as the Sacrifice of Christ.

Thus, despite their similar constitutional structures, the Anglican priest and the Catholic priest are in different, indeed opposite, places. The function of the Catholic priest is to bring Christ to the Church. The function of the Anglican priest is to bring the Church to Christ.

This radical difference of function answers the question of Anglican Orders. A Catholic priest is a Catholic priest because he has been ordained to bring Christ to the Church. An Anglican priest is ordained to bring the Church to Christ. Logic dictates the inevitable conclusion: an Anglican priest is not a Catholic priest.

Theological opinion has, of course, changed considerably since the Reformation. Nobody in the Anglican Church now suggests that the Catholic priestly function is blasphemous and fraudulent. And since Victorian times there have been Anglo-Catholic clergy who genuinely and devoutly believe the Catholic doctrine of priesthood, and believe that they exercise the Catholic priestly function in the Eucharist.

However, the Anglican priesthood and the Anglican Eucharist remain constituted by the historic formularies. They are not determined by current theological opinion, nor by the opinion of the individual vicar (however devoutly held).

The Anglican priestly function is now mostly exercised according to modern liturgies, not the Book of Common Prayer. However, these liturgies are required by law to be doctrinally consistent with the historic formularies (Worship and Doctrine Measure 1974, s.4(1)). They do not in terms reinstate the Catholic priestly function.

The Constitution of Marriage: Consensus-Copula

‘Marriage … is a lifelong union between one man and one woman …’ (Professor Norman Doe, Christian Law (2013), p.394)

Though formulated less than a decade ago, this alleged ‘principle of Christian law common to Christian Churches’ has not aged well. It was, of course, published in the same year that Parliament approved the Marriage (Same Sex Couples) Act.

Now the Professor’s own ‘ecclesial community’, as he describes it (p.viii), the Anglican Church in Wales, is considering a proposal to authorise a liturgical rite of blessing of same-sex marriage. (Blessing only, because the solemnisation of same-sex marriage in church is at present forbidden by the secular law.)

The proposal is accompanied by an ‘Explanatory Memorandum’ signed by all 6 of the Welsh bishops. This argues that blessing a same-sex marriage is justified by the Bible, as interpreted with the aid of ‘new social, scientific and pyschological understandings of sexuality’.

Despite a widespread and 2,000-year-old perception to the contrary, the Bible does not condemn homosexual acts per se. It condemns only lust (or porneia in Greek), albeit it tends to identify lust with homosexual acts rather than heterosexual ones. The moral quality of a homosexual act therefore depends, not on the act itself, but on the intention or motive of the actors. An act that is motivated by lust is bad. However, one that is motivated by love is good.

Persons who enter a same-sex marriage demonstrate thereby that they are motivated by love, not lust. The Church should therefore bless such marriage.

In pre-modern times legal discussion of marriage concentrated on the conditions necessary for a valid marriage (consent, absence of impediments, dispensation from impediments, ceremonial formalities) and the consequences of invalidity (the legitimacy of children, title to property). Recent incidents of forced marriage, and of marriage ceremonies not recognised by law, have led to a revival of interest in these matters. In modern times, discussion turned to the circumstances (if any) in which a marriage can be dissolved, and the consequences of marriage breakdown (financial support, custody of children).

However, the recent phenomenon of same-sex marriage raises the most fundamental issue of all. What is marriage? Assuming that all conditions for its validity are satisfied, how does a marriage come into being?

The Church in Wales Memorandum does not begin to address this question. Even if it was possible to accept its biblical exegesis on homosexual acts, this does not explain how a same-sex relationship, with or without sexual acts, is capable of constituting a marriage. Allusions to marriage are expressed in fluffy abstractions: ‘faithful and mutual commitment’, ‘loving and faithful commitment’, ‘lifelong fidelity and mutual comfort’.

Recent political controversies on both sides of the Atlantic have prompted much discussion of the constitutions of the United States and the United Kingdom. The American and British constitutions are different in many ways, but they have one thing in common: they are both man-made.

Like the United States and the United Kingdom, marriage also has a constitution. Unlike them, however, this constitution is God-given, not man-made. The Book of Common Prayer teaches that marriage was ‘instituted of God [i.e constituted by God] in the time of man’s innocency’. In the case of Dalrymple v Dalrymple (1811) 161 English Reports 665, Sir William Scott, Lord Stowell, observed that marriage ‘is the parent, not the child, of civil society’ (p.669). This God-given constitution of marriage is the foundation of all other constitutions of human society.

Consensus-Copula

Marriage has 2 essential constitutive elements, which are conveniently summed up in 2 Latin words (1) consensus and (2) copula.

The Prayer Book describes marriage as a covenant. Lord Stowell described it as ‘a contract according to the law of nature … wherever 2 persons of different sexes engage by mutual contracts to live together (Lindo v Belisario (1795) 161 English Reports 530, p.636). The different terminology reflects the dual heritage of Christianity, Jewish-Biblical (covenant) and Graeco-Roman (contract, natural law).

Secular law agrees with ecclesiastical law. ‘The contract [of marriage] itself, in its essence … is a consent on the part of a man and a woman to cohabit with each other, and with each other only’ (Harrod v Harrod (1854) 69 English Reports 344, p.349)

Consensus or contract / covenant is, of course, not remotely unique to marriage. A vast multitude of human relationships – economic, political, international and ecclesiastical (including the Church in Wales itself, of course) – are constituted by contracts of one sort or another.

The unique constitutive element of marriage is therefore the union, or copula, that proceeds from the consensus.

Consensus is inseparable from copula. Lacey and Mortimer confirm that ‘the institution [of marriage] consists in [1] a contract [consensus] and [2] its fulfilment [copula]’ (Marriage in Church and State (1912-47), p.39). They explain the relationship between the two

‘the surrender of the body is common alike to marriage and to illicit intercourse … the intention which makes it marriage cannot be adequately expressed without words or their equivalent’.

Thus sexual intercourse per se does not constitute copula. Copula requires prior consensus. Pre-marital intercourse between the couple is not consummation.

Lord Stowell observed that ‘A marriage is not every casual commerce [i.e sexual relationship]; nor would it be so even in the law of nature … But when 2 persons agree to have that commerce for the procreation and bringing up of children, and for such lasting cohabitation … That, in a state of nature, would be a marriage and … in the sight of God’ (Lindo v Belisario again, p.636).

Union, or copula, has both a metaphysical and a physical dimension.

The Prayer Book tends to emphasise the metaphysical dimension of union. The couple are ‘joined together by God’. Marriage signifies ‘the mystical union that is betwixt Christ and His Church’. However, the Prayer Book does refer to the physical dimension of union as ‘one flesh’.

The concept of marriage as one flesh is, of course, of biblical origin, and is affirmed by Christ Himself

‘the Creator made them from the beginning male and female … For this reason a man shall leave his father and mother, and be made one with his wife; and the two shall become one flesh … they are no longer two individuals; they are one flesh’ (Matthew 19, vv4-6).

This makes clear that marriage engages, not merely the constitution of all human society, but the very constitution of the human person, created male and female.

A married couple are joined together by a metaphysical act. Marriage is made in Heaven. But even Divine Grace yet requires human cooperation. The newlyweds cannot simply rely on God to effect their union. They are called to do their bit as well! The physical dimension of copula is effected by marital intercourse. Intercourse between the couple completes, or consummates, their marriage. The biblical phrase ‘one flesh’ could hardly make this clearer.

The precise relationship between consensus and copula was much discussed in the mediaeval Church. Robert E Rodes noted that ‘mediaeval canon law vacillated between [1] consent and [2] marital intercourse as the effective consummation of the marriage’ (‘Canon Law as a Legal System’, Natural Law Forum (1964) p.47n)

Messrs Coriden, Green and Heintschel relate that

‘the Paris school [theologians] taught that consent alone was necessary for a true marriage, while the Bologna school [canonists] held that consent was the beginning of marriage, but only with sexual consummation did a true marriage come into existence’ (The Code of Canon Law. A Text and Commentary (1985), p.812)

The papacy, characteristically, struck a compromise between these 2 schools of thought

‘true marriage exists from the moment of consent; when this consent is completed with sexual intercourse, the property of absolute indissolubility is added … the two becoming one flesh’.

Law has much more to say about consensus than about copula. If a marriage contract is validly made then consummation is presumed. However, proven non-consummation is a ground of nullity in law.

It is interesting to compare the English and Roman Catholic laws on this matter. Non-consummation is not an automatic ground of nullity under either law. In England and Wales, an unconsummated marriage is said to be voidable rather than void. There is a prima facie right to a decree of nullity, but this may be lost on equitable grounds (Matrimonial Causes Act 1973, ss.12 and 13).

In Roman Catholic law an unconsummated marriage may be dissolved, rather than annulled, for a ‘just cause’ (1983 Code, canon 1142). This power forms a rare exception to the Catholic teaching that a valid marriage contract is indissoluble. In England and Wales a non-consummation case can be decided by the local county court. In the Catholic Church such cases are reserved to the Pope himself. No lesser authority may decide them.

English law therefore implies a spouse’s right to consummation of the marriage. Roman Catholic law implies the couple’s joint duty to consummate. However, both laws make clear that an unconsummated marriage is constitutionally incomplete.

Constitution and Purpose

The Prayer Book identifies 3 purposes of marriage, ‘the causes for which matrimony was ordained’:

(1) children. Thus children are not constitutive of marriage. Copula does not require conception. The Prayer Book explicitly acknowledges this by providing that a prayer for the procreation of children ‘shall be omitted where the woman is past child-bearing’.

(2) sexual love. Influenced, no doubt, by celibate mediaeval theologians, the Prayer Book is somewhat grudging in its treatment of this purpose, describing it as ‘a remedy against sin, and to avoid fornication, [for] such persons as have not the gift of continency …’. (This also explains the paucity of reference to marriage as ‘one flesh’.)

Lacey and Mortimer astutely point out that marriage qua ‘remedy against sin … seems to conflict with the statement that it was instituted in the time of man’s innocency’ (op cit, p.28).

Modern liturgies are more generous. Common Worship states that ‘Marriage brings husband and wife together in the delight and tenderness of sexual union’. Its predecessor, the Alternative Service Book (1980), stated that marriage is given so that the couple ‘may know each other in love, and, through the joy of their bodily union, may strengthen the union of their hearts and lives’.

(3) Archbishop Cranmer, the first married Archbishop of Canterbury, sought to balance the negative mediaeval view of sex by the providing that marriage is also ‘for the mutual society, help, and comfort, that the one ought to have of the other, both in prosperity and adversity’ (D MacCulloch, Thomas Cranmer (1996), pp.420-1)

Purposes (2) and (3) are essentially the same – love. They merely refer to different aspects of married love, erotic or sexual love, and friendly, companionable love. Thus marriage has 2 essential purposes, love and children.

It is important not to confuse the constitution of marriage (what is marriage?) with the purpose of marriage (what is it for?). Pleasant-sounding abstract references to marriage (such as those in the Church in Wales Memorandum) tend to do this.

Faith assures that God constituted marriage out of love for humanity, and love is, of course, a good motive for marriage. But love, like children, is not constitutive of marriage. Sad though it is, a marriage can still exist without love, just as it can exist without children.

Mere tender feelings cannot be constitutive of marriage. And the suggestion that love is constitutive of marriage carries the false implication that the only valid marriage is a happy one.

The Marriage Quadrilateral

The phenomenon of same-sex marriage raises 2 questions, which this analysis has sought to answer

(1) What is marriage? Marriage is consensus-copula.

(2) What is marriage for? Love and children.

Consensus, copula, love, children. Having identified this marriage quadrilateral, let us apply it to a same-sex relationship.

A same-sex relationship is not incompatible with consensus. It is, of course, perfectly possible for 2 persons of the same sex to make a contract, or ‘covenant’, to live together unto their lives’ end.

A same-sex relationship is biologically incapable of producing children. However, as discussed, children are not constitutive of marriage. A childless marriage is prima facie just as validly constituted as any other.

A same-sex relationship is capable of love. But again, love, like children, is not constitutive of marriage.

However, a same sex relationship is incompatible with copula. Even the current secular law does not deny the obvious biological fact, which it has no power to change. As amended by the 2013 Act, it acknowledges that its non-consummation provisions (discussed above) ‘do not apply to the marriage of a same-sex couple’ (1973 Act, s.12(2)).

It may be thought that the mediaeval uncertainty about consensus-copula affords some sort of precedent for same-sex marriage. However, that debate concerned only the indissolubility of marriage, a different issue. It involved no denial that sexual consummation is a duty of marriage, or that procreation is a purpose of marriage.

Modern permissiveness is essentially the divorce of consensus-copula, albeit for contradictory reasons. Cohabitation outside marriage (what used to be called ‘living in sin’) implies that prior consensus is not necessary to copula, and may even hinder or restrict copula in some way. Same-sex marriage, by contrast, implies that consensus alone constitutes marriage, without the need for copula. Thus the permissive society both rejects the marriage contract and insists upon it.

Same-sex marriage is also the divorce of the 2 purposes of marriage, love and children. Children are not constitutive of marriage. And marriage is not, of course, a guarantee of children. As the Prayer Book makes clear, children are a blessing, not a right, of marriage. But the constitution of marriage serves the purpose of procreation. A same-sex relationship, by contrast, is constitutionally incapable of serving this purpose. A same-sex relationship is therefore not comparable to a childless marriage.

The link between married love and children first became controversial in the mid-20th century. The famous papal encyclical Humanae Vitae (1968) affirmed ‘the inseparable connection, established by God, which man on his own initiative may not break, between

[1] the unitive significance [love] and

[2] the procreative significance [children]

which are both inherent to the marriage act’ (para 12).

The Lambeth Conference 1930 loosened this connection somewhat by suggesting that ‘where there is … a clearly felt moral obligation to limit or avoid parenthood and where there is a morally sound reason for avoiding complete abstinence … other methods [than complete abstinence] may be used …’ (resolution 15).

However, despite the 20th century confusion over the precise nature of the link between married love and children, there was no denial that the link exists.

It is controversial to equate same-sex love with married love. It may seem self-evident that married love is unique to marriage, i.e consensus-copula. The Catholic Church apparently denies that same-sex love is of the same quality as married love. Homosexualitatis Problema (1986) (not an encyclical, but a letter issued with papal approval) stated that ‘the [homosexual] inclination itself must be seen as obiective inordinata‘ (para 3). The harsh-sounding Latin phrase could perhaps be rendered ‘confused’ in vernacular English. But law and love (and Latin) are different subjects, of course.

The authorities and commentaries discussed above support Professor Doe’s ‘common principle’. A same sex relationship is capable of 1 of the constitutive elements of marriage, and arguably resembles 1 of its purposes. However, it is not capable of the other 2 elements of the marriage quadrilateral. It is therefore not on all fours with the constitution of marriage to which the common principle bears witness.

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.

Holy Communion: Consecration and Consumption

The English law of Holy Communion may be conveniently studied under 3 headings

(1) Who may administer Holy Communion

(2) to whom and

(3) how, when and where?

However, to understand the relevant law, it is important not to confuse the Communion with the Eucharist.

Who?

Canon B12(1) of the revised canons provides that ‘No person shall consecrate and administer the Holy Sacrament … unless he shall been ordained priest by episcopal ordination’.  This echoes s.10 of the Act of Uniformity 1662 (now repealed).  The words ‘consecrate and administer’ may mean that the priest must not only consecrate the bread and wine, but must also control and preside over the whole Communion Service, including the distribution of the consecrated elements to the communicants.

The Prayer Book (Further Provisions) Measure 1968 permitted authorised laypeople to assist the priest by distributing Holy Communion to communicants.  This lay assistance is now regulated by canon B12(3) and the Admission to Holy Communion Regulations 2015.

Canon B44 allows that a minister of a non-episcopal Church may celebrate Holy Communion in a Church of England church where a local ecumenical partnership has been established ((1)(f)).  This provision makes clear that episcopal ordination is, as Paul Avis described it, merely the ‘house rule’ of the Church of England, a rule of discipline, not religious belief.  Article 19 confirms that one particular ministerial structure is not essential in the Church, just so long as ‘the pure Word of God is preached, and the Sacraments be duly ministered according to Christ’s ordinance’.  However, canon B44 requires that the Anglican faithful be warned of the officiating minister’s lack of episcopal ordination (cf 4(3)(a)(b)).

To Whom?

Baptism alone does not qualify a person to receive Holy Communion.  Reception requires

(1) commitment to Baptism

(2) instruction in the faith and

(3) repentance.

The Book of Common Prayer 1662 required that communicants should be ‘[episcopally] confirmed … or … ready and desirous to be so confirmed’ (rubric).  Confirmation candidates ‘being now come to the years of discretion, and having learned what their godfathers and godmothers promised for them in Baptism … with their own mouth and consent … ratify and confirm the same; and also promise that … they will evermore endeavour themselves faithfully to observe such things …’.

Confirmation is therefore

(1) confirmation by the candidate of his baptismal promises and

(2) the assurance of Divine Grace to support the candidate’s commitment to these promises ‘that he may continue Thine for ever; and daily increase in the Holy Spirit more and more …’.

There is no reference to Holy Communion in the 1662 Confirmation rite itself, only in the rubric.  Confirmation is concerned with Baptism rather than Holy Communion.  The phrase ‘ready and desirous’ makes clear that Confirmation is not essential to Holy Communion.  (In the old days, bishops were often absent from their dioceses, indeed never even visited them, so a candidate might have to wait a long time to be confirmed.)

Canon B27(3), again echoing the 1662 rubrics, provides that ‘The minister shall present none to the bishop [for Confirmation] but such as are come to the years of discretion and can say the Creed, the Lord’s Prayer and the Ten Commandments, and can also render an account of their faith according to the … Catechism’.  Canon B27(2) requires the minister to use his best endeavour to instruct [Confirmation candidates] in the Christian faith and life’.

The modern canon B15A, which now regulates admission to Holy Communion, repeats the 1662 rubric about Confirmation, but allows that other persons may receive Holy Communion too, viz

(1) (b)  baptized persons who are communicant members of other Churches which subscribe to the doctrine of the Holy Trinity, and who are in good standing in their own Church

(c)  any other baptized persons authorized to be admitted under regulations of the General Synod; and

(d)  any baptized person in immediate danger of death.

Thus practising Christians from Churches which lack episcopal ministry and Confirmation may now be admitted to the Anglican Sacrament.  This rule, like canon B44, is consistent with Article 19.  It is also consistent with Article 25, which teaches that Confirmation is not a Sacrament ‘ordained of Christ our Lord in the Gospel’.  ‘Good standing’ is not defined, but suggests an assumption that such persons will have received sufficient instruction in their own Churches.

The Admission of Baptised Children to Holy Communion Regulations 2006 were made under the authority of Canon B15A(1)(c) above.  Young children who are not confirmed, or even ready to be confirmed, may now receive Holy Communion.  However, this is subject to the bishop’s discretion.  Regulation 5 provides that ‘the bishop must first satisfy himself … that the [child’s] parish … has made adequate provision for preparation and continuing nurture in the Christian life and will encourage any child admitted to Holy Communion … to be confirmed at the appropriate time’.  So commitment and instruction are still required.

Although canon B15A may have lowered the bar to Holy Communion somewhat, canon B15(2) requires that ‘The minister shall teach the people … that they come to this Holy Sacrament with such preparation as is required by the Book of Common Prayer’.

The 1662 Prayer Book does indeed insist on careful preparation to receive the Sacrament.  Prospective communicants are sternly exhorted ‘to consider the dignity of that holy mystery, and the great peril of the unworthy receiving thereof; and so to search and examine your own consciences … and that not lightly …’.

The minister must also invite a penitent prospective communicant ‘who … cannot quiet his own conscience … [to] come to me, or to some other … minister … and open his grief; that … he may receive the benefit of absolution …’.  Private confession and absolution are therefore at the option of the penitent, a concession to human weakness, not an obligation.

The Prayer Book rubric indicates that the invitation in the Communion Service to ‘make your humble confession to Almighty God, meekly kneeling upon your knees’ is specifically addressed ‘to them that come to receive the Holy Communion’, not to any other persons present.

Cathedral clergy are expected to set an example to everybody else, both fellow clergy and laypeople, by receiving the Sacrament ‘every Sunday at the least’ (canon B13(2)).  The lay faithful are expected to receive ‘regularly, and especially at … Christmas, Easter and Whitsun’ (canon B15(1)).  This rule follows the canons of 1603, which enjoined reception of the Sacrament ‘oftentimes’ (canon 21) and ‘at least thrice in a year’ (canon 23).

The bishop has power (virtually never used) to order the exclusion of ‘notorious offenders’ from Holy Communion (canon B16).  This power is discussed in a separate post, filed below.

How, When and Where?

The provision of bread and wine for Holy Communion is governed by canon B17.  The bread may be leavened or unleavened.  The vestments to be worn are prescribed by canon B8(2) and (3).  The ‘table of the Lord’ (i.e the altar) must be covered with ‘a fair white linen cloth’ (canon F2(2)).  The provision and cleaning of communion vessels and linen are dealt with by canons F3 and F4 respectively.

All incumbents, or ‘priests having a cure of souls’, must ‘celebrate, or cause to be celebrated, the Holy Communion on all Sundays and other greater Feast Days and on Ash Wednesday’ (canon C24(2)).  Canon B14 confirms that Holy Communion should be celebrated ‘at least’ on those days in parish churches.  However, canon B14A permits some variation of this general rule.  In cathedrals, Holy Communion should be celebrated ‘as often as may be convenient’ (canon B13(1)), which is usually every day.

Holy Communion must normally be administered in a consecrated or licensed place of worship.  It can be administered in any place where there is a sick person who cannot go to church.  Other venues require the bishop’s permission (canon B40).  Holy Communion may be administered in a private chapel, but ‘seldom upon Sundays and other greater Feast Days, so that the residents … may resort to their parish church and there attend divine service’ (canon B41).  This rule stresses the communal character of the Sacrament.

The Eucharist and the Communion

This survey indicates that the sole purpose of Holy Communion in English law is the reception of the consecrated bread and wine by the  communicants.  The terminology used (Communion, Lord’s Supper) also carries this implication.  The Sacrament is never described as the Eucharist.

In Anglican parlance the words ‘Eucharist’ and ‘Communion’ are often used interchangeably, but they are distinct liturgical rites. The word Eucharist means Thanksgiving.  The Eucharistic Prayer is the prayer of thanksgiving which includes the Words of Institution by which the bread and wine are consecrated.  The Communion rite comes later.  Thus, in English law, the purpose of the Eucharist is the Communion which follows it.

Canon 21 of 1603 suggests that some contemporary clergy failed to appreciate the connection between Eucharist and Communion.  It ordered that ‘no bread or wine … shall be used; but first the Words of Institution shall be rehearsed, when the said bread and wine be present upon the Communion-table’.  Evidently the bread and wine were sometimes administered without being consecrated first.

The modern canon B12 affirms that Eucharist and Communion, though distinct, are inseparable, by requiring the officiating priest always to receive Holy Communion himself.

The English and Roman Catholic laws concerning the administration of Holy Communion are on similar lines (though they are far from  identical).  However, there is virtually no English law concerning the Eucharist.  This is the great difference between the two laws.  The Roman Catholic law concerning Holy Communion is but a part of its law concerning the Eucharist: see the Code of Canon Law 1983, canons 897 to 958, entitled ‘The Most Holy Eucharist’.  In English law, it is the other way around.  The law concerning the Eucharist (such as it is) is part of the law of Holy Communion.

In the Church of England, canon B6 enjoins ‘attendance at Divine Service‘ every Sunday, but not specifically attendance at Holy Communion.  Attendance at Morning or Evening Prayer will do just as well.  For a long time in England, weekly attendance at Holy Communion was impossible for most people, because the Sacrament was only celebrated once a month (‘Sacrament Sunday’).

In the Roman Catholic Church, by contrast, the faithful are obliged to attend the Eucharist (Mass) every Sunday and on other important Holy Days (1983 Code, canon 1247).  Attendance at another act of worship will not fulfill this obligation.  However, the obligation to receive Holy Communion is limited to just once a year (canon 920.1).  The severe Eucharistic fast from midnight, without even a glass of water, which was only modified as recently as the 1950s, made frequent communion difficult.  (Sometimes Catholics would receive Communion at an early service before attending the Eucharist.)

The 1662 rubrics made clear that ‘there shall be no celebration of the Lord’s Supper, except there be convenient number to communicate with the priest … 4 communicants (or 3 at the least)’ are the absolute minimum required.

This requirement does not appear in the modern canons of the Church of England.  However, canon C24(2) makes clear that the duty to ‘celebrate, or cause to be celebrated’ the Holy Communion is owed to parishioner-communicants.  Priests without a cure of souls have no duty to celebrate the Eucharist / Holy Communion, nor indeed any right to do so.

This is another difference from the Roman Catholic law, which states that ‘priests [i.e all priests] are … earnestly invited to offer the Eucharistic Sacrifice daily …’ (1983 Code, canon 276(1)).

The English legal emphasis on reception of Holy Communion has its basis in religious belief, of course.  The 1662 Catechism teaches that ‘the Lord hath commanded [the Sacrament] to be received‘.  Hence the emphasis on relatively frequent Communion.  Also that ‘The Body and Blood of Christ … are verily and indeed taken and received by the faithful in the Lord’s Supper’.

Article 25 affirms that ‘in such only as worthily receive the [Sacraments] they have a whole effect or operation’.  Article 28 draws the Catechism and Article 25 together: ‘to such as rightly, worthily, and with faith, receive the same, the Bread … is a partaking of the Body of Christ; and likewise the Cup … is a partaking of the Blood of Christ’.  It adds that ‘The Body of Christ is … eaten only after an heavenly and spiritual manner.  And the mean whereby the Body of Christ is received and eaten in the Supper is faith’.

2 actions are therefore required for a communicant to receive the Body and Blood of Christ

(1) consecration of the bread and wine and

(2) worthy and faithful consumption thereof

The teaching in Article 29 is critical: ‘The wicked, and such as be void of a lively faith, although they do carnally and visibly press with their teeth … the Sacrament of the Body and Blood of Christ: yet in no wise are they partakers of Christ: but rather, to their condemnation, do eat and drink the sign or Sacrament of so great a thing’.

This makes clear that the effect of consecration is that the bread and wine have ceased to be ordinary food.  They are now a sign and Sacrament of the Body and Blood of Christ.  Any irreverent use of them will incur Divine condemnation.  (Hence the great importance of instruction and repentance prior to Communion.)  However, they are not the Body and Blood of Christ per se.  

This in turn means that, while irreverent use incurs condemnation, it is also wrong to venerate or worship the consecrated bread and wine, since they are a mere sign and Sacrament.  The communicant receives the Body and Blood of Christ only by worthy consumption.

This teaching on the Eucharist is in contrast to that of the Roman Catholic Church, which holds that

(1) consecration alone does constitute the bread and wine as the Body and Blood of Christ.  ‘In [the Eucharist] Christ the Lord, through the ministry of the priest … [is] substantially present under the appearance of bread and wine’ (1983 Code, canon 899.1).

(2) reception of communion is not the only purpose of consecration.  Canon 901 affirms that ‘A priest is entitled to offer Mass for anyone, living or dead’.  Indeed bishops and pastors must apply the Eucharist pro populo, i.e for the people of their dioceses and parishes, every Sunday and Holy Day of obligation (canons 388(1) and 534(1)).

The 39 Articles oppose 2 purposes of the Eucharist affirmed by the Roman Catholic Church

(1) application of the Eucharist for a metaphysical purpose, known as an intention.  Article 31 strongly condemns ‘Masses in the which it was commonly said that the Priest did offer Christ for the quick and the dead, to have remission of pain or guilt’ as ‘blasphemous fables and dangerous deceits’.

(2) worship of the consecrated elements.  Article 28 provides that ‘the Sacrament of the Lord’s Supper was not by Christ’s ordinance reserved, carried about, lifted up or worshipped’.  Article 25 observes that ‘The Sacraments were not ordained of Christ to be gazed upon, or to be carried about, but that we should duly use them’.

It will be noted that the condemnation of (1) is much stronger than (2) in the Articles.  Purported applications of the Eucharist other than for Communion are dangerous and blasphemous.  However, the Prayer Book rubric warns that ‘the sacramental [i.e consecrated] bread and wine remain still in their very natural substances, and therefore may not be adored (for that were idolatry …)’.

The ceremonial of modern Communion Services is very similar to that of the modern Catholic Mass.  This may obscure the difference of Eucharistic action.  Canon B8 permits the ‘customary vestments’, i.e the Catholic Eucharistic vestments, but also makes clear that ‘the vesture worn by the minister … is not to be understood as implying any doctrines other than those now contained in the [historic] formularies’.

Intention

In the case of Bourne v Keane (1919) Appeal Cases 815, Lord Chancellor Birkenhead suggested that the application of the Eucharist for a metaphysical intention is the essential difference between the Catholic Mass and the Communion Service (cf p.837).  (Nothing to do with ‘smells and bells’ ritualism.)  Bl John Henry Newman (a Catholic convert, of course) suggested that ‘the doctrine of intention … viewed in all its parts, constitute[s] a new religion’ (Loss and Gain, 1848).

The belief that the Eucharist can be applied for a metaphysical purpose derives in turn from the belief that the Eucharist is a sacrifice (not just a sacrament) ‘in which the Sacrifice of the Cross is for ever perpetuated’ (1983 Code, canon 897).  This is discussed in another post ‘In Persona Christi: Eucharistic Sacrifices’, filed below.

As every schoolboy knows, the Protestant reformers complained (with some justice no doubt) that the metaphysical ministrations of the mediaeval Church, including Mass intentions, were exploited for material gain.  (The sale of indulgences etc.)

Modern Roman Catholic law addresses this concern by seeking to prevent ‘even the semblance of trafficking or trading’ in Eucharistic applications / intentions.  Multiple Masses are not allowed (canons 905, 953).  A priest should not celebrate the Eucharist without a congregation of at least 1 person (an altar-server), though solitary celebration is permitted for ‘a good and reasonable cause’.

Nevertheless the payment of a stipend or offering for a Eucharistic intention is not only lawful, but positively encouraged.  Such offerings ‘contribute to the good of the Church’ (canon 946).  ‘Any priest … may accept an offering to apply the Mass for a specific intention’ (canon 945(1)).  He may not demand a larger sum than that prescribed by local law, but may still accept ‘an offering voluntarily made’, even if it exceeds the local rate (canon 952(1)).  Intentions, and the offerings therefor, must be recorded (canons 955, 958).  The bishop must see to it that all Mass obligations are fulfilled (canon 957).

In Bourne v Keane, the House of Lords ecumenically held (by a majority) that a fund for the saying of Roman Catholic Masses was a valid and lawful trust in English law.  The Lord Chancellor traced the dichotomy between the mediaeval Mass and the reformed Communion Service to the ‘Protestant’ Prayer Book of 1552.  The first, ‘Catholic’ Prayer Book of 1549 did not make a complete break between the two, because ‘the name Mass was retained [in that Book]’ (p.836).

The 1552 Book was unambiguous, however.  There could be ‘no doubt that this [1552] service was a Communion Service pure and simple, and that Mass had disappeared … from the Book of Common Prayer’ (p.837).

The Elizabethan Act of Uniformity 1559 completed the work of 1552.  ‘[Its] effect was to render the celebration of Mass illegal’.  By a later Elizabethan statute ‘the saying or singing of Masses was expressly declared to be a criminal offence’ (p.838).  (A crime punished by death in some cases.)  The result of the 16th century legislation, of course, was that Mass trusts could not be lawful, because ‘such trusts were pernicious and dangerous to the state’ (p.846).

Mass was not decriminalised till the first Roman Catholic Relief Act 1778.  Then at last the Relief Act of 1829 was passed, as a result of which ‘the Roman Catholic religion was recognised as one which could be practised without any penal consequences or breach of the law’ (p.852).  Thus the law forbidding Mass trusts ‘perished as a consequence of [the Relief Acts]’ (p.857).

In the modern Church of England, ‘catholic’ vicars apply, or purport to apply, the Eucharist for particular intentions, and publicise this in parish newsletters etc, notwithstanding Article 31.  It could be argued that this constitutes a ‘reserved’ offence against doctrine under s.14(1) of the Ecclesiastical Jurisdiction Measure 1963: ‘maintaining doctrines repugnant to the 39 Articles’ (Halsbury’s Laws, vol 14, para 1354).

However, no prosecution for any reserved offence has ever been brought since 1963.  Mass intentions are evidently uncontroversial nowadays, no longer considered blasphemous and dangerous.

It would be a different case if a vicar considered the authorised Eucharistic Prayers inadequate vehicles for his intentions, and used a Roman Catholic prayer instead.  This would constitute misconduct rather than a doctrinal offence, cognisable under the Clergy Discipline Measure 2003, ‘doing [an] act in contravention of the laws ecclesiastical’ (s.8(1)(a)).  (It would also infringe the Catholic Church’s copyright).  Canon B1(2) is clear that ‘Every minister shall use only the forms of service authorised …’.  All clergy are required to make a Declaration ‘[to] use only the forms of service which are authorised or allowed by canon’ (canon C15.1(1)).  But again, there is no legally reported case of a vicar being disciplined for using the Roman rite.

A vicar who accepted or solicited payments for his intentions should also be liable to discipline, since he has no right to such payments, and his intentions are not recognised by law.  Any trust fund similar to that in Bourne v Keane, but for Anglican Eucharistic intentions instead, would arguably fail for the same reasons.

Reservation

It is argued that Article 28 need not preclude custody of the Sacrament where there is an unavoidable delay between consecration and communion, for example to bring the Sacrament to the sick, or to a congregation which lacks a priest.  Christ did not ordain the practice of reservation, but neither did He positively forbid it.  Nor, on its plain wording, does Article 28.  As discussed earlier, the religious difficulty is not reservation per se, but the danger that it may encourage ‘idolatrous’ adoration or worship of the Sacrament.

It is true, however, that the Book of Common Prayer allows no scope for reservation.  The post-Communion rubric provides that leftover consecrated elements ‘shall not be carried out of the church, but the priest and such other of the communicants as he shall then call unto him shall, immediately after the Blessing, reverently eat and drink the same’.

It has been suggested that this rubric was aimed at preventing, not superstitious veneration, but profane consumption, i.e as part of the vicar’s Sunday lunch.  The 1552 Prayer Book had sacrilegiously provided that ‘if any of the bread or wine remain [whether consecrated or unconsecrated], the curate [the vicar] shall have it to his own use’.  (See Moore’s Introduction to English Canon Law, ed T Briden, 4th ed 2013, p.93).  But the 1662 rubric still provides no authority for reservation.

The 1662 Prayer Book provides a special service for ‘Communion of the Sick’, but this clearly requires the priest to consecrate the bread and wine ‘[at] a convenient place in the sick man’s house’, and to receive the Sacrament himself.  It does not authorise him to bring pre-consecrated bread and wine.

In 1899 the 2 Archbishops jointly opined that reservation was unlawful, even for sick Communion.  The combination of

(1) Article 28

(2) the Prayer Book’s requirement of immediate consumption and

(3) lack of any evidence that reservation was practised after the Reformation

all pointed to this conclusion.

The Revised Prayer Book of 1927 proposed that, ‘to secure that any sick person in his last hour may not lack the benefit of the … Sacrament, … the priest, if the Bishop shall so permit, may … reserve so much of the consecrated bread and wine as is needed for the purpose’.  The 1927 rubrics were careful to make clear that the Sacrament ‘shall be reserved only for the Communion of the Sick … and … for no other purpose whatever’, i.e not for adoration.

A supporter of the Revised Prayer Book made the reasonable point that ‘at the present time the whole [Communion] service has to be read [to the sick person] and that the priest has to communicate himself.  No one can think it right that a priest should be forced to communicate 30 or 40 times a week’ (House of Commons Official Record, volume 218, column 1222).

However, Parliament was unmoved by the difficulty and rejected the Revised Book.  Protestant prejudice against reservation was apparently a major cause of this.

For their part, the ecclesiastical courts held that a tabernacle (a receptacle in which the Sacrament is reserved) was forbidden by the famous Ornaments Rubric.  In St. Mary, Tyne Dock (1954) Probate 369, the Chancellor correctly held that ‘If [a tabernacle] is not [authorised by the Ornaments Rubric] then the bishop’s sanction cannot save it, for the consent of the bishop cannot render an illegal church ornament legal’ (p.371).

In Lapford Church (1954) Probate 416, the Chancellor suggested that the Ornaments Rubric could be circumnavigated by reserving the Sacrament in an aumbry (a receptacle discreetly cut into the church wall, less showy than a tabernacle, and less suggestive of adoration).  He explained that ‘for a long time now, an aumbry has been treated as not constituting an ornament at all, but as part of the furnishings of the church’, and therefore permissible.

The Lapford case actually concerned the introduction of a tabernacle, not an aumbry, so the Chancellor refused a faculty.  However, the Court of the Arches granted the faculty on appeal, confidently asserting that its ratio decidendi was ‘common sense’: (1955) Probate 205, at p.214.  The Court accepted that ‘All the deviations and additions contained in the [Revised Prayer] Book remained, strictly speaking, illegal’ (p.213), but also observed, no doubt correctly, that ‘the [1662] law as it stood was evidently too rigid … the power of enforcing compliance with the law rested with the bishops’ (p.213-14).

So, if the bishops declined to enforce the law on their clergy on account of its rigidity, and indeed positively approved unlawful practices, then this was nothing to do with the ecclesiastical courts.  On the contrary

‘The duty of a diocesan chancellor … is ancillary.  He is not responsible for reservation: but if he finds that reservation is in fact practised with the sanction of the bishop … it is his duty to see that the provision [illegally] made for keeping the consecrated bread and wine is both safe and seemly’ (p.214).

On this view, the protection of the illegally reserved Sacrament is more important than adhering to the law.  Casuistry rather than common sense.

The modern canon regulating sick Communion, canon B37(2), is ambiguous.  It provides that, if a sick or housebound person ‘is desirous of receiving the most comfortable Sacrament … the priest … shall … visit him, and … reverently minister the same’.  This wording, of course, allows scope for holding an entire Communion Service where the sick person is, or administering pre-consecrated bread and wine.

The 1662 regime of public worship was finally brought to an end by the Worship and Doctrine Measure 1974.  The Ornaments Rubric and the rubric requiring immediate consumption ceased to have the force of law.  Meanwhile reservation has ceased to be controversial, and now seems to be practised universally.  It is impossible to imagine Parliament objecting to it today.  And with the 1662 regime gone, the General Synod can legislate by canon, which does not require Parliamentary approval.

Yet reservation is still unregulated by ecclesiastical law.  No Measure or canon provides for it.  It remains a matter for the discretion of the ecclesiastical courts and bishops on a case by case basis.

There are a number of possible explanations for this.  Perhaps there is concern that any legislative recognition of reservation would contradict the Church’s doctrine, or appear to do so.  The practice should therefore be managed on an informal, unwritten basis (like remarriage after divorce).

There may be a mistaken belief that the Ornaments Rubric still is part of the law, notwithstanding the Worship and Doctrine Measure.  In St Thomas, Pennywell (1995) Family 30, Chancellor Bursell seemed to labour under this misapprehension.  He granted a faculty for a ‘Sacrament house’, not on the basis that the Ornaments Rubric was no longer law, but on the basis that the law no longer interpreted the Rubric with its previous rigour.  (This case is discussed in ‘Liturgy and the Faculty Jurisdiction’, filed below, under category ‘Liturgy and the Law’).

Or maybe the Church is simply content leave the practice of reservation to the ecclesiastical courts.  Certainly this does not seem to have caused any significant practical difficulty since 1974.  However, it is arguable that care and custody of ‘the sign or Sacrament of so great a thing’ demand formal legal recognition and regulation.

The Married State

Daniel Hill, ‘The State and Marriage: Cut the Connection‘ (Law and Religion UK, blogpost, 21st June 2018)

The title of this polemical blogpost is admirably succinct and self-explanatory.  The learned author does not have a good word to say about the state’s involvement in marriage.  He makes 3 specific criticisms:

(1) ‘the state is intruding itself as a third party into our marriages’

(2) state involvement in marriage discriminates against couples who ‘have chosen not to go through a legally binding ceremony of marriage’.

(3) last, but not least, the bureaucratic character of state involvement in marriage is ‘romance-killing’.

Criticisms (2) and (3) are unpersuasive.  The author writes movingly about an unmarried couple of his acquaintance whose ‘commitment to each other … does not seem to me to be less than the commitment … of many legally married couples’.  Yet their lack of legal marriage means that ‘they are not eligible for [marriage-related] tax breaks … so, what justifies the state in discriminating against them?’

A possible answer to this question is that the state can hardly be expected to appreciate the couple’s ‘commitment’ to each other (no matter how obvious this may be to family and friends) if the couple neglect or refuse to notify it to the state, by means of a legal marriage.

As for ‘romance-killing’, it is arguable that the legal formalities of marriage are a salutary reminder that marriage is rather more than mere romantic feelings.  The learned author himself describes marriage as ‘a form of shared life’.  It is not merely a shared feeling.

Criticism (1) may have some force, though perhaps not what the author intended.  It is true that a man and a woman marry each other.  They are not married by the state.

The Book of Common Prayer teaches that ‘holy matrimony … is an honourable estate, instituted of God in the time of man’s innocency’, long before the state existed.  Marriage is a God-given status, not a status conferred by mere human law.  It has been argued that the modern state has undermined or corrupted the Divine status of marriage by sanctioning the dissolution of marriages (‘Those whom God hath joined together, let no man put asunder’), and, more recently, by permitting same-sex ‘marriage’.

In the case of Dalrymple v Dalrymple (1811) 161 English Reports 665, Sir William Scott observed that ‘Marriage in its origin is a contract of natural law … It is the parent, not the child, of civil society’ (p.669).  He also observed of ancient Jewish law that ‘Amidst the manifold ritual provisions made by [Moses] there is no ceremony prescribed for the celebration of marriage’.

Indeed for many centuries in England a couple might validly marry without an official ceremony (a ‘common law marriage’).  Common law marriage continued to be valid until Lord Hardwicke’s Marriage Act 1753 provided that no marriage would be recognised at law without an official ceremony (in the parish church).

The 1753 Act was not uncontroversial at the time.  It meant that Roman Catholics and Protestant non-conformists had to submit to the Anglican marriage rite.  Poor people could ill afford the fees.  Grand families may have found it distasteful to marry amidst the hoi polloi of the parish, rather than in the seclusion of private chapels.  Many freedom-loving Englishmen took the view that it was a man’s own business where and how he got married.  Horace Walpole wrote sarcastically to a friend ‘It is well that you are [already] married’, and complained that the 1753 Act was ‘impudent’ and contained ‘as many impediments and formalities … as a treaty of peace’ (Cobbetts Parliamentary History, volume 15, column 32).

Although an official ceremony only became essential in 1753, the state (or the Church, which is the ecclesiastical state) has always exercised jurisdiction over the marriage contract, whether or not the contract was made in an official ceremony.

The learned author is rather vague about what marriage actually is.  He describes it as a ‘commitment’, a ‘personal and intimate relationship’ and ‘a form of shared life’, but not as a contract or status.  However, there is nothing vague about his proposal.  Not only would there be no officially recognised ceremony, but the state would lose all jurisdiction over the constitution, validity and subsistence of the commitment / relationship / shared life that is marriage.  Marriage would become a contract without a jurisdiction, a status unknown to the law.

So who would decide the constitution, validity and subsistence of a marriage, if the state could not?  The parties themselves, presumably.  Yet why should the parties be trusted to respect the God-given status of marriage, any more than the state?  If marriage depends on nothing more than the present wishes and feelings of the parties, it will soon lose the character of both a status and a contract.  It would become a mere sociological phenomenon, or an academic subject for students of natural law.

There is also the likelihood that, absent state authority, marriage questions would be decided, not by the parties jointly, but by the stronger party.  The case of A v L (2010) 2 Family Law Reports 1418 refers to the ability of a husband under Muslim (Sharia) law to divorce his wife by unilateral decision.  The Bible, of course, relates that ‘Moses command[ed] that a man give his wife a certificate of divorce and send her away … because your hearts were hard‘ (Matthew 19, 7-8).

We trust that the learned author is not hard-hearted in seeking to ‘cut the connection’ between marriage and the state.  But his marriage proposal, though thought-provoking, is singularly ill-considered, and should be turned down.

The Solemnization of Matrimony: Duties and Deposits

It was reported in the news media last week that a vicar has taken to charging a deposit of £100 for weddings in his church.  He then forfeits the deposit if the bride arrives late for the ceremony.  (This is, of course, a well known bridal prerogative, but it seems that some brides have been abusing the prerogative by as much as 20 or 25 minutes.)

The vicar’s exasperation at such gross unpunctuality may be understandable.  But is he legally entitled to charge, and forfeit, a deposit in these circumstances?

It is universally assumed that parishioners have a common law right to marry in their parish church.  However, the incumbent and the Church authorities have no general common law right to charge a fee (not even a refundable deposit) for publication of the banns or solemnisation.  A contractual fee for performing the ceremony would constitute the sin of simony (cf Ecclesiastical Committee, 229th Report, para 58).

Common law would enforce an ‘accustomed duty’ of the kind described in the Prayer Book marriage service (i.e a customary marriage fee in a particular parish).  However, such a duty / fee was difficult to prove ‘from time immemorial’, and would only be worth a few pence in the money values of today.

So marriage fees are now charged under statutory authority.  This is provided by the Ecclesiastical Fees Measure 1986, as amended by an Amendment Measure of 2011.  The fees themselves are fixed by a parochial fees order made under s.2 of the 1986 Measure.

(S.12(2) confirms that the Ecclesiastical Fees Measure applies only to England.  How the Church in Wales is able to charge marriage fees is one of the great unsolved mysteries of ecclesiastical law, as the common law right is the same on both sides of the Severn.)

Under the Parochial Fees Order 2017, 2 fees are payable for a marriage service, to

(1) the diocesan board of finance (‘the DBF’) and

(2) the parochial church council (‘the PCC’).

Following the 2011 Amendment, marriage fees are no longer payable to incumbents (cf.s.1(1)).  This is a sensible reform.  Weddings are part of an incumbent’s paid duty.  He should not be paid twice for the same work.  Many weddings are solemnised by non-incumbent clergy.  And the DBF is now responsible for payment of all stipends and other clergy remuneration.  Hence the DBF is the appropriate recipient of the fee that was formerly payable to the incumbent.

These 2 statutory fees correspond to the 2 elements of the common law right

(1) the duty of the incumbent to solemnise the marriage, either personally or by deputy and

(2) the use of the church building for the ceremony.  As the Prayer Book rubric says ‘the persons to be married shall come into the body of the church with their friends and neighbours …’.  The PCC is now responsible for the upkeep of the church building.

As amended, the 1986 Measure empowers an incumbent to waive a fee payable to the DBF in a particular case (s.1(9)).  He may likewise waive a fee payable to the PCC, though only after consulting the churchwardens (s.1(10)).

These provisions indicate that the vicar may waive part of a marriage fee, i.e reduce it by £100, as an incentive to bridal punctuality.  But they do not empower him to impose an additional deposit, over and above the statutory fees.

However, the common law right to marry in church is a bare right, limited to what is legally necessary for the solemnisation, i.e reading the marriage service in the church.  It does not extend to the traditional accompaniments of a church wedding, such as music, bells, flowers and photography.  The extras, as they are called.  All these require the incumbent’s licence.

Canon B35(5) of the revised canons confirms that ‘When matrimony is to be solemnised … it belongs to the minister of the parish to decide what music shall be played, or what furnishings or flowers should be placed in or about the church for the occasion’.  Canon F8(2) provides that ‘No bell … shall be rung contrary to the direction of the minister’ (see also canon F15(1)).

Thus, although an incumbent could not charge a deposit in respect of a bare solemnisation, he may attach reasonable conditions to his licence for any extras.  He is therefore arguably within his rights to charge a deposit against late arrival, as a condition of granting  permission for the extras.

Those who supply the extras (organist, choir, bellringers) generally expect to be paid for their services.  Provision of the extras will then be a matter of contract. The incumbent will usually be the link between the couple and at least some of the suppliers of the extras.  He will be involved in making arrangements for the extras.

It may therefore be possible for the incumbent to charge a deposit on a contractual basis, as event organiser for the couple and / or as agent for the suppliers.

So the vicar in this case may be entitled to charge a deposit, on the basis of licence and / or contract.  However, the boundary between

(1) common law right (for which only statutory fees are chargeable) and

(2) extras (for which additional fees may be charged)

must always be respected.  Couples will be illegally overcharged if it is not.

Introducing the 2011 Amendment Measure, the Bishop of Exeter admitted that ‘there is considerable variation between parishes on services that are charged as extras over and above the statutory fees … people who are getting married are surprised to be asked for substantial sums for administration, vergers’ fees and so on …’ (House of Lords Official Report 23rd March 2011, column 794).

The Ecclesiastical Committee confirmed that ‘the PCC [has] never had a power to set fees of its own … over and above the statutory fees’ (229th Report, para 70).  If the incumbent has no common law right to charge a marriage fee, a fortiori the PCC has no such right.

The 2011 Measure was intended to resolve the confusion between rights and extras, but it may not have been entirely successful in this.  The 2017 Fees Order explains that the cost of lighting the church is included in the statutory fee, but that the cost of heating it is a contractual extra.  It also provides that the verger (if any) is a contractual extra.  Yet it is arguable that a verger’s work pertains to the use of the building, and is therefore covered by the statutory fee.