ecclesiasticallaw

Ecclesiastical law

Tag: Canons of 1603

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  This echoes s.10 of the Act of Uniformity 1662 (now repealed).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.

Ecclesiastical Preferment: Canon 33 and Martyn v Hind

Canon 33 of 1603, The Titles of such as are to be made Ministers, provided that

‘no person shall be admitted into sacred orders, except he shall …

[1] exhibit to the Bishop … a presentation of himself to some ecclesiastical preferment then void in that diocese; or shall

[2] bring to the said Bishop a … certificate that either he is provided of some church within the … diocese … or of some minister’s place vacant …’.

It goes on to warn that

‘if any Bishop shall [ordain] any person … that hath none of these titles … then he [the Bishop] shall keep and maintain him … till he do prefer him to some ecclesiastical living.  And if the said Bishop shall refuse to do so, he shall be suspended … from giving of Orders by the space of a year’.

Canon 33 was discussed in the case of Martyn v Hind (1776) 98 English Reports 1174.  The case sheds an interesting sidelight on the status of Church of England ministers.

Mr Martyn was a newly ordained curate.  He sued his rector (or former rector), Dr Hind, after the latter dismissed him.

When appointing Mr Martyn, the rector had stated that ‘I … promise to allow him a yearly sum of 50 guineas for his maintenance … until he shall be otherwise provided of some ecclesiastical preferment …’.  Mr Martyn was referred to in the third person because the statement was addressed to the Bishop, not to him.

Some time after his appointment as curate, Mr Martyn took on the office of ‘parish reader’, an appointment in the gift of the vestry that had nothing to do with the Bishop.  (Presumably he needed the extra money.)  The rector took the view that Mr Martyn was now ‘otherwise provided of some ecclesiastical preferment’, and that this in turn had the effect of releasing the rector from his promise of payment and entitling him to dismiss Mr Martyn.

When sued for the 50 guineas, the rector tried to argue that he had no liability to Mr Martyn, because the promise had been made only to the Bishop, to satisfy the requirements of Canon 33.

However, the court held that the rector’s statement ‘[was] not a contract with the Bishop to indemnify him: but a certificate and assurance to the Bishop of a matter of fact’, viz that Mr Martyn had a suitable job to go to (p.1177).  The instrument was ‘merely a matter of information to the Bishop: the contract [was] with the curate’ (p.1178).  As well as complying with the requirements of Canon 33 and the Bishop, the rector’s act of appointment also created a contract between himself and Mr Martyn.

The court held that Canon 33 ‘shows that … it is not barely necessary that [an ordination candidate] should have a maintenance [i.e an income]: but that he should likewise have … some church where he may exercise his ministerial function: for that is the ground upon which the Bishop is entitled to ordain’ (p.1177).

This suggests that the Bishop’s right to ordain a candidate is conditional on the candidate’s possession of a title, an ecclesiastical office.  If the candidate lacks a title, that will not invalidate the ordination, but Canon 33 effectively obliges the Bishop to obtain a title for the candidate himself.  (An ordained minister could not undertake secular employment.)

The same point also disposed of the rector’s next argument.  He claimed that Mr Martyn had never really been his curate at all, because, though ordained, he had not been licensed by the Bishop.

However, the court held that the ordination itself constituted a licence to officiate as curate.  Mr Martyn had not been ordained simpliciter.  On the contrary, the Bishop had ordained him to the particular curacy.  The office of curate was ‘the very foundation and title of the ordination: therefore he [Martyn] is licensed to all intents and purposes’ (p.1178).

Canon 33 was replaced by Canon C5 of the revised Canons.  Canon C5 does not repeat the threat of financial liability on a bishop who ordains without title.  However, it still requires that an ordination candidate ‘shall first exhibit to the bishop … a certificate that he is provided of some ecclesiastical office  … which the bishop shall judge sufficient’.

However, the new regime of ‘common tenure’ suggests that it is now the Bishop’s responsibility to certify the office, not the candidate’s.  The Terms of Service Regulations 2009 provide that an ecclesiastical office ‘may be designated as a training post if the office holder is required by the … bishop to undertake initial ministerial education’ (29(3)).  Like other officeholders one newly ordained is also entitled to a written statement of particulars of office (including remuneration) from a diocesan officer nominated by the Bishop (3(1)).  This may mean that an ordination candidate is ordained to the diocese more than to a particular office.

To return to Martyn v Hind.  The court doubted that Mr Martyn really was a parish reader: ‘The term reader has confounded us … [Mr Martyn] is not a reader in any sense of the law.  This is nothing more than a parish employing a clergyman … to read prayers, and they call him a reader’ (p.1178).

As the court observed, a reader (or lector) ‘is one of the 5 minor orders of the Roman Church, inferior to the deacon’.  It was therefore a lay office: ‘a reader known to the canon law is always put in opposition to a clergyman: they [readers] are always considered laymen’.  That was why the court doubted that Mr Martyn could be a reader, because he was an ordained clergyman.

The reader’s status was a matter of contemporary practice, as well as ‘foreign’ canon law.  The court noted that parishes would appoint lay readers where clergy were lacking.  For example, ‘in the Welch dioceses, where there is no endowment worth the while of a clergyman to accept … many persons officiate as readers ‘in opposition to clergymen”.

Whatever the precise nature of the parochial office bestowed on Mr Martin, it was not an ‘ecclesiastical preferment’.  This was because ‘the office [is] such as requires no licence or authority [from the Bishop].  Therefore … it is impossible to consider this as an ecclesiastical preferment’.  So the court awarded Mr Martyn his 50 guineas.

The court’s conclusion was therefore that the office of reader could not be an ecclesiastical office because

(1) it was an intrinsically lay office and

(2) it lacked episcopal authority.

Today a reader is still a lay officeholder (1).  The revised Canons are clear that only ‘a lay person’ can become a reader (cf Canon E4(1)).  An ordained minister is not eligible.  However, the office now requires episcopal authority just as much as that of an ordained minister (2).  It is no longer a parochial appointment but an episcopal one.

Thus a lay reader must be both (1) admitted to office and (2) licensed to officiate by the Bishop (Canons E5 and E6).  The Bishop may not licence a stipendiary reader unless satisfied that ‘adequate provision’ has been made for the reader’s maintenance (E6(4)).  A stipendiary reader also holds common tenure on the same terms as stipendiary clergy (Terms of Service Measure 2009, s.1(1)).

What did the Ornaments Rubric Mean?

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

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

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

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

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

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

(1) Liddell v Westerton (1857) and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Unknown Bellringer: Bells and Organs

‘The control of access to church for bellringing purposes [is] analogous to the control of sporting associations’

TH v Chapter of Worcester Cathedral et al (2016) High Court (Administrative) 1117, at para 77.

In this case, the Chapter forbade a bellringer from ringing at the Cathedral after a ‘safeguarding’ investigation made findings of sexually inappropriate conduct against him.  The bellringer applied for judicial review of the decision on various grounds, including breach of his human rights.

The court granted the bellringer anonymity, but refused his application.  There was no jurisdiction to review the Chapter’s decision, because the Chapter was not exercising any ‘governmental or public administrative function’ in taking the decision (para 67).  It was merely exercising a proprietary, and private, right (para 71).  The Chapter controlled the bell-tower on behalf of the Cathedral, and was therefore entitled to decide who might or might not enter it.  Although its decision was motivated by concerns about safeguarding, the Chapter was not acting as a safeguarding authority or exercising a legal safeguarding power.

(The informative and erudite blog Law and Religion UK provides a detailed summary of this case, posted 20th May 2016.)

The bellringer brought his claim merely as a private citizen aggrieved by the action of a public authority.  He did not attempt to argue that a Cathedral bellringer is an officeholder of the Cathedral, or that the Chapter’s decision had wrongfully interfered with his tenure of an office.

The Administrative Court’s likening of bellringing to a sporting or recreational activity (as quoted above), rather than to a strictly ecclesiastical function, is supported by a dictum in Pearce and Hughes v Rector of Clapham (1830) 162 English Reports 1063.  As the Court of the Arches pointed out in that case, ecclesiastical law only requires a church to possess one bell, not a whole ring of bells.  ‘There must be a bell to ring to church, and to toll at funerals: but that is all’ (p.1065).  Canon F8 now provides for ‘at least one bell to ring the people to divine service’.

On Sundays, the ring of bells usually falls silent 5 or 10 minutes before the time of divine service, and the bellringers depart.  The single bell is then rung until the service begins.  It is this single bell that performs the constitutional function prescribed by ecclesiastical law, not the ring of bells that precedes it.

The canons of 1603 restricted the recreational use of bells.  Bells were ‘[not] to be rung superstitiously upon Holy Days or Eves abrogated by the Book of Common Prayer, nor at any other times, without good cause to be allowed by the Minister … and by [the churchwardens]’ (canon 88).  Persons who disturbed divine service by ‘untimely ringing of bells’ suffered ecclesiastical discipline (canon 111).

Canon F8 now provides that ‘No bell … shall be rung contrary to the direction of the Minister’.  The incumbent controls the belfry of the parish church, just as the Chapter does the Cathedral belfry.  Churchwardens are said to have the property in any parish bells and bellropes.

However, while ecclesiastical law makes certain provision for bells, the bellringer himself would seem to be ‘a person unknown to ecclesiastical law, either as an official of the Church, or as a servant of the parish’.  This dictum was originally applied to organists rather than bellringers, but it is no longer true of organists.

It may be instructive to compare the relationship of bells and organs, and those who operate them, to ecclesiastical law.  The Pearce case concerned a faculty for the installation of a new organ (which was granted).  The Court of the Arches held that

‘Most certainly an organ is not necessary in a parish church for the decent performance of worship [any more than a ring of bells]: therefore the parishioners are not bound to provide an organ: but, though it is not necessary, it is extremely decent, proper and even customary in a parish … of extent and opulence’ (p.1064).

On this view, an organ has the same ecclesiastical status as a ring of bells.  It is a desirable, but not essential ornament, of divine service.  The revised canons still do not provide that parish churches must have organs (or any musical instruments).  However, since 1988, ecclesiastical law has addressed the appointment and removal of parish organists.  Canon B20(1) provides that

‘the functions of appointing any organist, choirmaster … or director of music, and of terminating the appointment … shall be exercisable by the minister with the agreement of the parochial church council [PCC], except that, if the archdeacon … in the case of the termination of the appointment, considers that … the requirement as to the agreement of the PCC should be dispensed with, the archdeacon may direct accordingly’.

Thus the effect of canon B20(1) is that the incumbent and the archdeacon may force the dismissal of an organist against the will of the PCC.  Canon B20(1) does not address the question of who picks up the bill if a secular tribunal or court rules that a dismissal is unfair, and awards compensation to the sacked organist.  Even if the organist is hired on a self-employed basis only, without an employment contract, a dismissal may still breach his rights under the so-called ‘equality’ laws.

A cathedral, unlike a parish church, must have a ‘director of music’ by law (Cathedrals Measure 1999, s.9(1)(g)).  Further provision concerning this office is a matter for the constitution and statutes of the particular cathedral.

It seems that parish organists, unlike their cathedral counterparts, cannot be officeholders.  The case of Royce (1940) 1 Chancery 514 concerned a bequest ‘for the benefit of the [parish] choir’.  There was a dictum of Lord Hardwicke which apparently suggested that such a gift might be invalid, ‘as choristers never were allowed in parochial churches’ (p.518).

However, the court allowed the bequest, and offered this clarification:

‘what perhaps the Lord Chancellor [Hardwicke] had in mind … [was] that, as distinguished from a cathedral or collegiate church, of which the choristers might still remain part of the body [i.e they are part of the cathedral or college foundation], in parochial churches … choristers were not recognised as part of the church body or organisation … But to say that it was illegal to have a choir in the parish church … [is] a proposition for which there is no authority’ (pp.518-520).

There is no specific reference here to an organist or choirmaster, but the case suggests that the members of a parish choir, and by implication its organist or director, cannot be officeholders.  Therefore they must either be volunteers from the congregation, or paid servants or contractors.

In Persona Christi: Eucharistic Sacrifices

The author of this blog recently attended, for the first time, a service of Mass in the Extraordinary Form, also known as the Tridentine Mass or the Mass of Ages – i.e the traditional Latin Mass.  It was organised by the Latin Mass Society, with the permission of the genial local priest.  ‘Come along out of nostalgia!’, he winkingly encouraged his parishioners when announcing the event.  Almost none did.  There were only about six in the congregation.  The parish priest himself gave the Mass a miss.

As an aesthetic experience, the Mass was disappointing.  It was quickly over.  The sublime Latin of the Roman Canon was inaudible, as the celebrant dropped his voice to a near-whisper, ‘the blessed mutter of the Mass’.  It was only possible to follow the action by the elevation of the Host and the Chalice and the ringing of the bell.

And yet, from the 6th century (or even earlier) until as recently as the 1960s, this was the Mass of the Latin Church.  Untold millions of Catholics down the centuries knew no other.  Compared to it, the new Mass, which was only introduced in 1970, is a mere blink of the eye.  It inspired the Elizabethan martyrs of England and Wales to suffer hideous torture and death (and their fellow countrymen to inflict this on them).

Today the Eucharist is generally regarded as an ecumenical success story.  The Church of England has always agreed with the Catholic Church that the Eucharist is a sacrament ‘ordained of Christ our Lord in the Gospel’ (Article 25), by means of which ‘the Body and Blood of Christ … are verily and indeed taken and received by the faithful’ (Catechism).  The Holy See acknowledged that, of all ecumenical issues, ‘it is in respect of Eucharistic doctrine that the [Anglican-Roman Catholic] Commission were able to achieve the most notable progress towards a consensus’ (Response to Final Report, 1991).

The principal ecumenical difficulty concerns the Eucharist as sacrifice rather than sacrament.  English ecclesiastical law at first seemed to reject any belief in a Eucharistic sacrifice.  Article 31 holds that ‘the sacrifices of Masses … were blasphemous fables, and dangerous deceits’.  All mediaeval references to the priest as sacrificer were removed from the reformed ordination rite.  (This was one reason why Anglican orders were held invalid by Pope Leo XIII in Apostolicae Curae (1896).)

Liturgical practices that suggested sacrifice were also suppressed.  Altars were replaced by ‘convenient and decent tables’ (canon 82 of 1603) placed in the chancel or in the centre of the church.  The east end, where Mass was formerly celebrated, was used to display the Ten Commandments instead.  Unleavened bread was replaced by ‘bread such as is usual to be eaten’.  And, of course, the Eucharist was celebrated in English, not Latin.

The case of Faulkner v Litchfield and Stearn(1845) 163 English Reports 1007 may be the first legally reported ritual case.  The Court of the Arches refused a faculty for a stone altar, described as a ‘table’, on the grounds that it was not a communion table within the meaning of the Prayer Book rubric and the 1603 canon.  In later cases the Privy Council held that Eucharistic vestments, unleavened bread and the eastward position were all unlawful (Hebbert v Purchas(1871) Law Reports 3 Privy Council 605), as were candles on the communion table ‘when [they] were not wanted for the purpose of giving light’ (Martin v Mackonochie (1868) Law Reports 2 Privy Council 365).  The Court of the Arches also held in Mackonochie that the elevation of paten and chalice was unlawful ((1868) 2 Admiralty and Ecclesiastical 116).

However, the Book of Common Prayer retained one phrase from the Latin Mass which describes the Eucharist as a ‘sacrifice of praise and thanksgiving’.  Citing this rather slender authority, the Bishop of Chichester, Eric Kemp, held in St Stephen’s Walbrook (1987) 2 All England Reports 578 that ‘a doctrine of the Eurcharistic sacrifice which is not that of a repetition of the sacrifice of Calvary can lawfully be held in the Church of England …’ (p.583).

The old regime of public worship was finally abolished by the Worship and Doctrine Measure 1974.  Liturgical practices that were formerly unlawful are now permitted, and many have indeed become almost universal.  Canon F2 of the revised canons continues to refer to the ‘holy table’ rather than the ‘altar’, but allows that a communion table may be made of stone, and hence indistinguishable from an altar.  In St Stephen’s Walbrook, the Court of Ecclesiastical Causes Reserved permitted the introduction of a stone altar by Henry Moore.  Bishop Kemp, who was one of the judges, held that ‘an altar falls within the wide bounds of what can reasonably be called a holy table’ (p.581)

Just as the Church of England began to rediscover the Eucharistic sacrifice, so the Catholic Church seemed to move towards the Anglican conception of the Eucharist as a communal celebration, a sacrament of unity and charity rather than a sacrifice.  The new Mass is almost always celebrated in the vernacular, it provides for active participation by the laity and it disdains the eastward position.  In this country, at least, High Mass now usually begins and ends with the singing of rousing Protestant hymns.

The Oxford Dictionary of the Christian Church (3rd ed 1998) noted that the Anglican-Roman Catholic ‘Agreed Statement’ on the Eucharist in 1971 (just after the introduction of the new Mass) ‘relegat[ed] the term transubstantiation to a footnote’.  Canon law also softened the emphasis on sacrifice.  A commentator relates that the original Code of Canon Law 1917 treated the sacrifice and the sacrament of the Eucharist in separate chapters.  The modern Code, promulgated in 1983, presents a more ‘integral’ treatment of the Eucharistic action (The Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.643).  The author of this blog recalls a bright young Anglican theologian asserting, in 1985 or 1986, that the Catholic Church no longer believed in transubstantiation.

However, the 1983 Code is clear that ‘the Eucharistic Sacrifice [is] the memorial of the death and Resurrection of the Lord, in which the Sacrifice of the Cross is for ever perpetuated’ (canon 897).  The Code also provides explicitly that the priest (described as sacerdos in the definitive Latin text), acting in persona Christi, ‘bring[s] into being (conficere valet) the Sacrament of the Eucharist’ (900).

These provisions explain the Catholic Eucharistic Sacrifice.  As Bishop Kemp recognised in the Walbrook case, the Catholic sacrifice is not a repetition of Christ’s sacrifice (as the reformers may have erroneously concluded).  On the contrary, the sacrifice offered by the priest is one and the same as the sacrifice of Christ.  Hence the priest is acting, as the canon says, in persona Christi.

Today the structure and ceremonial of the Eucharist qua sacrament may be almost identical in the Catholic and Anglican Churches.  However, the Eucharistic sacrifices offered by the two Churches remain radically different.

Article 31 is entitled ‘the one oblation of Christ finished upon the Cross’. It asserts that ‘The offering of Christ once made, is that perfect redemption, propitiation and satisfaction for all the sins of the whole world … and there is none other satisfaction for sin, but that alone’. Hence its rejection of ‘the sacrifices of Masses’.  The Prayer Book liturgy follows Article 31 by asserting Christ’s ‘one oblation of himself once offered … a full, perfect and sufficient sacrifice’.

Therefore, while the Catholic sacrifice is one and indivisible,  the Anglican Eucharist is concerned with 2 separate sacrifices:

(1) the once-for-all sacrifice of Christ offered in Palestine 2000 years ago and

(2) the sacrifice of praise and thanksgiving offered by the Church in response to Christ’s sacrifice.

Modern Anglican liturgies may perhaps move (1) and (2) closer together than they are in the Prayer Book, but the distinction between them never disappears.

There is a metaphysical link or bridge between (1) and (2).  This enables those who receive the bread and wine in (2) thereby to receive the Body and Blood of Christ given in (1).  However, this is subject to the recipient’s piety of disposition.  Article 28 affirms that ‘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 29 makes clear that ‘The wicked, and such as be void of a lively faith, although they do carnally and visibly press [the bread and wine] with their teeth … yet in nowise are they partakers of Christ’.

On this doctrine, the priest cannot act in persona Christi, because Christ’s sacrifice is once for all, finished.  Christ is the only true sacerdos.  So far from acting in persona Christi, the priest acts in persona ecclesiae.  He, or she, offers the Church’s sacrifice to Christ, but not vice versa.

The Anglican Eucharist, freed at last from all the restrictions imposed by the Privy Council, is often richly clothed in elaborate and colourful ritual that was originally inspired by the Catholic Eucharistic sacrifice.  This may serve to obscure the difference between the two.  The folksy informality of some modern Catholic worship may have the same effect, of course.  But the effect is superficial, not a truly ecumenical convergence.

Even though it was reduced to a footnote, the discussion of transubstantiation in the 1971 Agreed Statement is helpful: ‘The term [transubstantiation] should be seen as affirming the fact of Christ’s presence and of the mysterious and radical change which takes place … not … as explaining how the change takes place’.

The doctrine of transubstantiation is often associated with St. Thomas Aquinas and with mediaeval scholastic philosophy.  However, Aquinas and his colleagues were merely offering a rational explanation, or model, of how bread and wine become the Body and Blood of Christ.  They were not defining any religious belief.  As this footnote makes clear, the Catholic Church believes, and has always believed, that transubstantiation does occur, but it does not require acceptance of the Thomist explanation (or any other explanation) of how it occurs.

Part Time Churches: Closed for Regular Public Worship, but Open for Occasional Public Worship

A recent Church of England report contains some interesting suggestions on the future management of church buildings (Church Buildings Review Group, September 2015).

The canons of 1603 emphasised the sacred character of churches as places of worship.  Canon 88 lays down a general rule that ‘no plays, feasts, banquets, suppers, church-ales, drinkings [etc] or any other profane usage to be kept in the church, chapel or churchyard’.  However, this rule was apparently not absolute.  ‘Profane’ activities could be allowed for ‘good cause’, and with the permission of the incumbent and churchwardens.

Canon F16 of the revised canons cautiously permits plays, concerts, and exhibitions in churches, but only if they ‘are such as befit the House of God, are consonant with sound doctrine, and make for the edifying of the people’.  Permission is subject to any general directions issued by the bishop or other ordinary.  If the minister is in any doubt he must refer the matter to the ordinary ‘and obey his directions therein’.

The Sharing of Church Buildings Act 1969 permits the Church of England to share its places of worship with other Christian denominations, by means of an agreement under seal (s.1(8)).  A sharing agreement may provide for different denominations to hold their own services in the same building.  It may also dispense with the requirement to hold Church of England services on Sunday ‘to such extent as may be necessary’ to enable non-Anglican worship to take place (s.4(1)).

Shared churches must remain in the sole ownership of the Church of England if they are consecrated (which they generally will be) (s.5(1)).  The parochial church council (‘the PCC’) will also remain responsible for the care of a shared parish church, though the sharing agreement may provide for the other denominations to assist or make financial contributions (s.3(4)).

The ecclesiastical courts were initially conservative on the use of places of worship.  In the case of St. John’s, Chelsea (1962) 2 All England Reports 850, the Deputy Chancellor took the extreme (and absurd) position that churches are so sacred that any secular use of consecrated land is forbidden, even if no church is actually built on the land, or likely to be built in the future.

However, as churches grew short of worshippers and of money, the ecclesiastical courts pragmatically permitted income-producing secular use (delicately described as ‘shared use’ or ‘communal use’) that went considerably further than the scope of canon F16 and the Sharing of Church Buildings Act, a complete U-turn from St. John’s, Chelsea.  (See the blogpost ‘Shared Use’, which is filed below.)

Ecclesiastical law facilitated this new liberalism by the Pastoral (Amendment) Measure 2006 (now consolidated as s.68 of the Mission and Pastoral Measure 2011), which enabled the ecclesiastical court to sanction a lease of part of a church, subject to the restriction that the church premises ‘are, taken as a whole, used primarily as a place of worship’ (s.68(3)).

The obvious practical need for extending the secular use of a church is that the church might have to close altogether if the use is not permitted.

Common law made no provision for the closure of a parish church.  It may have regarded churches rather like highways: ‘once a church, always a church’.  However, it was held in Church Estate Charity, Wandsworth (1871) Law Reports 6 Chancery Appeals 296 that ‘at common law, parishioners are not bound to rebuild a church which has fallen down’ (p.299). In St George’s, Birmingham (1960) 1 Weekly Law Reports 1069, the chancellor held that the ecclesiastical court had an ‘ancient jurisdiction’ to permit the demolition of a church, without requiring statutory authority (p.1170). The church in that case was in ‘a very dangerous condition’ and it was ‘quite unrealistic to expect [it] to be preserved or reconstructed’ (p.1171).  So perhaps common law accepted that churches might cease to be used as such on account of destruction or extreme dilapidation.

The Church Building Act 1845 provided that a church might be demolished under the authority of a faculty, but only where a new church was built to replace it (s.1).  The faculty jurisdiction to replace a old church with a new one is now regulated by ss.17 and 18 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (recently amended by the Miscellaneous Provisions Measure 2014, s.13).  A church may be demolished by faculty only if the court is satisfied that another church will be erected on the site or curtilage.  A faculty may permit the demolition of part of a church.  S.18 also confers an emergency power on the chancellor to authorise the demolition of the whole or part of a church without a normal faculty.

Replacement of one building with another on the same site is not the same as closing down a church altogether.  The statutory procedure for making a ‘superfluous’ church redundant seems to have been first introduced by the Union of Benefices Measure 1923 (ss.19-27).  This was followed later in the 20th century by the Pastoral Measures 1968-1983.

Then the Dioceses, Pastoral and Mission Measure 2007 provided that the nasty words ‘redundant’ and ‘redundancy’ should no longer be applied to any dealings with churches. Redundant churches would henceforth be merely ‘closed for regular public worship’.  In a commentary on the 2007 Measure, Ms Ingrid Slaughter carefully explained that the r-word was considered ‘unhelpful’, not to mention ‘unduly negative and not a wholly accurate description of the outcome of the process’ (Ecclesiastical Law Journal, January 2009, pp.6 and 20).

The redundancy / closure procedure is now consolidated in the Mission and Pastoral Measure 2011.  There are 2 stages to the procedure

(1) closure, terminating the building’s constitution as a parish church and

(2) disposal, i.e deciding what is to be done with the church after it has been closed as such.

(1) and (2) both require the authority of a statutory scheme, not a mere faculty.  They may require separate schemes.  Closure of a church is effected by a pastoral church buildings scheme (so called to distinguish it from other pastoral schemes which do not involve closure).  A church buildings scheme may then be followed by a pastoral (church buildings disposal) scheme.

S.42 of the 2011 Measure provides that a declaration of closure may be made in respect of a church or chapel, or part of one, if it is not required, or will cease to be required as a result of the scheme.  (Thus the definition of redundancy remains, even if the terminology does not.)  Closure may be ordered even if the parish is left without a church as a result.

It is possible for both closure and subsequent disposal to be dealt with by a church buildings scheme only, without a separate disposal scheme.  A single scheme will be acceptable if

(1) a new church or licensed place of worship will be provided in the area of the benefice and there are satisfactory proposals for the future of the old building or

(2) the old building will be preserved or put to a suitable use. 

There is also a special expedited procedure in respect of certain long-disused churches (if there are any left).  If the bishop certifies that a church, or part of a church, has not been used for public worship since 1st April 1964, the Church Commissioners may dispose of the building without a scheme, but only if the incumbent, patron and PCC all agree (s.66).

S.66(2) provides that, where a church has already been demolished otherwise than under statutory authority, a disposal scheme may be made in respect of the site.  S.66(2) will apply in situations similar to that in St. John’s, Chelsea (1962), where the church had been destroyed by wartime bombing.

When a church has been closed but not yet disposed of, the legal ownership of the building and the responsibility for its care and maintenance both pass to the diocesan board of finance (s.61).  The parochial liability ceases.  The building also ceases to be subject to the faculty jurisdiction, unless the scheme provides otherwise (s.74(1)).

S.63 prescribes 4 options on a disposal:

(1) the appropriation of the church building to a ‘suitable’ permanent use, as specified in the scheme.

(2) the preservation of the building, if it is sufficiently important.  If preservation is ordered, the church is transferred to the Churches Conservation Trust (s.71(7))

(3) the building may remain vested in the diocesan board of finance for specified uses, and may be let or licensed by the board to a third party

(4) only if none of the above options is feasible is demolition permitted.  Demolition is the last resort.

S.79 of the 2011 Measure usefully provides that a closed church, whether vested in the board or the Trust, may be transferred by agreement to the government or to English Heritage, a secular body.  This will, of course, relieve the Church of the cost of maintaining the building.  A s.79 agreement effectively overrides the disposal process.  Any disposal provision ceases to apply when its subject is acquired by the secular body.  The secular body is not bound by it.

As Ms Slaughter implied, an ex-parish church can still be used for some sort of worship

The Churches Conservation Trust may permit the use of a preserved church for worship as authorised by the bishop (s.57(9)).  This may include non-Anglican Christian worship.  Likewise the diocesan board of finance may permit such worship ‘occasionally’ in its church buildings (s.61(2)).  Such worship is always a permissible use to which a closed church may be appropriated (s.63(13)).  Also, a closed church may be reopened and restored to use as a place of worship by a subsequent church buildings scheme (s.70).  This is possible even if the church has been transferred under s.79, but only if the secular body consents.

The recent report seems to propose, or at least hint at, a kind of spectrum of use of church buildings. A church at one end of the spectrum will remain in full and exclusive use as a place of worship. A church at the other end will be completely given over to secular use.  Churches in between will be subject to shared use, which may be predominantly religious or predominantly secular. A church might become a ‘festival church’, its religious use being limited to occasional worship on important festivals (para 147).

To this end, the report recommends (para 133) an amendment of the Parochial Church Councils (Powers) Measure 1956, so that the care of open churches should be legally transferable from the PCC to another body, whether secular or ecclesiastical, that is willing to assume the responsibility, while retaining the incumbent’s freehold.  A local community trust or parish council, or some national body might be an appropriate body to look after the parish church.  Or the Churches Conservation Trust might do so, even though the church has not been closed and is still a parish church.

Our account suggests that this model of church use is not particularly radical, but merely continues the trend of modern ecclesiastical law.

Preaching as a Profession: Against Ignorance and Sedition

The canons of 1603 provided that the Christian religion should be taught from:

(1) the Catechism contained in the Book of Common Prayer

(2) the authorised books of homilies and

(3) sermons preached by authorised preachers.

Clergy were required to ‘examine and instruct the youth and ignorant persons of [the] parish, in the Ten Commandments, the Articles of the Belief [i.e the Creed], and in the Lord’s Prayer: and shall diligently hear, instruct and teach them the Catechism set forth in the Book of Common Prayer’ (canon 59).  This duty was shared with licensed schoolmasters (canon 79).  Familiarity with the Catechism was an essential precondition of confirmation: ‘none shall be presented to the Bishop for [confirmation] but such as can render an account of their faith, according to the Catechism …’ (canon 61).

There are two authorised books of homilies, dating from 1547 and 1571 respectively.  The canons of 1603 anticipated that further homilies would be authorised in the future.  Thus canon 49 refers to ‘the Homilies already set forth, or hereafter to be published by lawful authority …’ (see also canon 46).  Every church was required to possess copies of the homilies, as well as the Bible and the Book of Common Prayer (canon 80).

As a general rule, the teaching function of the clergy was limited to (1) and (2) above.  They were required to teach the Catechism and to read the authorised Homilies to their parishioners, but not to preach their own sermons.  Not only were clergy in general not required to preach, they were positively forbidden to do so.

It is easy to forget this now.  However, as the Court noted in the case of Colefatt v Newcomb 92 English Reports 296, ‘By the old canon law preaching was not part of the minister’s office … but only reading mass and administering the sacraments: and nobody preached then without licence of the bishop, but he appointed preachers’.

This is confirmed by Lyndwood’s Provinciale (circa 1432), which provides that

‘no [ordained clergyman] which is not authorised by the law, or otherwise specially privileged, to preach the Word of God shall take upon himself the office or use of preaching the said Word of God … except he first present himself to the Diocesan [bishop] of that place where he intendeth to preach and … be then sent to preach by the Diocesan unto one certain parish, or unto many, as it shall seem expedient …’ (Book 5, Title 1, Chapter 1).

The reformers appreciated the importance of preaching, but there were difficulties, as Phillimore records:

‘The clergy in Queen Elizabeth [I]’s time being very ignorant … and moreover the state having a jealous eye upon them, as if they were not very affected to the Reformation none were permitted to preach without licence, but they were to study and read the homilies … and they that were instituted subscribed a promise to the same effect’ (Ecclesiastical Law, 2nd edition 1895, p.786).

The situation had evidently not improved when King James I succeeded to the throne.  Another commentator observed that ‘The canons of 1603 have many provisions on the subject of preaching, there being at that time a close association between the pulpit and sedition’ (The Book of Church Law, 10th edition 1905, p.120).

Preaching was indeed closely regulated by the 1603 canons.  Preachers were the clerical elite.  Cathedral dignitaries were ex officio preachers (cf canon 43).  However, other clergy required a special licence to preach from a bishop, the Archbishop, or from Oxford or Cambridge Universities (cf canon 51).  At the very least they required permission to preach from their diocesan bishop (canon 49).

Thus canon 49 provided that ‘No person whatsoever, not examined or approved by the Bishop of the diocese, or not licensed … for a sufficient and convenient preacher, shall take upon him to expound in his own cure, or elsewhere, any Scripture or matter of doctrine: but shall only study to read plainly and aptly (without glossing or adding) the [authorised] Homilies ….’.

Incumbents who were also licensed preachers were supposed to preach in their churches every Sunday. Unpreaching incumbents were required to ‘procure’ sermons at least once a month (canon 47). A non-resident incumbent was expected to supply a preaching curate ‘if the worth of the benefice will bear it’. If no preacher was available, an authorised homily would be read instead of the sermon. Cathedral dignitaries were required to preach in their own churches (canon 43).

Preaching was allowed in private or institutional chapels, and in private houses when ministering to those too ill or frail to attend church (canon 71). However, preaching ‘in market towns or other places’ was forbidden ‘without the licence and direction of the Bishop … first obtained and had under his hand and seal …’ (canon 72).

All preaching activity was carefully controlled.  Incumbents and churchwardens ‘shall [not] suffer any man to preach within their churches … but such as, by showing their licence to preach, shall appear unto them to be sufficiently authorised thereunto’ (canon 50).  Cathedral chapters were likewise obliged to forbid unlicensed preaching in their cathedrals (canon 51).  Visiting preachers were required to sign a special register recording the date of the sermon and the name of the preacher’s licensing bishop (canon 52).

Preachers shared a collective responsibility for the Church’s preaching ministry.  They were required to refrain from controversy inter se.  A preacher was not supposed to ‘impugn or confute any doctrine delivered by any other preacher in the same church, or in any church near adjoining’ without the bishop’s permission (canon 53).  Thus any doctrinal disputes were supposed to be referred to the bishop for resolution, not fought out from opposing pulpits.  As canon 53 wisely observed ‘upon such public dissenting and contradicting there may grow much offence and disquietness unto the people’.  The bishop could impose silence on a controversial preacher.  Preachers who refused to submit to professional discipline lost their licences (canon 54).

In Gates v Chambers (1824) 162 English Reports 259, the Court of the Arches observed that, by the early 18th century, this old regime of preaching had fallen into desuetude and that licences to preach ‘are now included either in letters of orders or in the licences of ministers to particular cures’ (p.264).  Writing in the late 19th century, Phillimore noted cheerfully that ‘the bishops do generally and justly forbear to put the [1603] Canons as to [preaching] in execution: and every priest is permitted to preach, at least in his own cure …’ (ibid, p.786).

The Worship and Doctrine Measure 1974 provides, somewhat vaguely, that the Prayer Book Catechism, being a ‘form of service’ contained in the Book of Common Prayer shall ‘continue to be available for use in the Church of England’ (s.1(2)).  The revised Canons are vague too.  The Prayer Book Catechism is no longer specifically referred to.  Reference is made only to ‘the Church Catechism‘ (canons B26(1) and B27(2)), but this is not identified further.  It is not made clear whether any other Catechism has been authorised, or when, or where such Catechism is to be found.

The Oxford Dictionary of the Christian Church (3rd edition 1998) relates that a revised Catechism ‘was in 1962 commended by the Convocations for use during a period of 7 years, which has been repeatedly extended’.  To have proper authority, any revised Catechism will now require the approval of the General Synod, by a two-thirds majority in all 3 Houses (canon B2).

No further books of homilies have been authorised since 1571.

The modern legal regulation of preaching is rather more perfunctory than that of 1603.  Canon B18(1) provides that at least one sermon shall be preached on Sunday, ‘except for some reasonable cause approved by the bishop’.  The purpose of a sermon is said to be ‘to minister the word of truth, to the glory of God and to the edification of the people’ (B18(3)).  The modern liturgical book Common Worship suggests excitingly that ‘the sermon [can] include … the use of drama, interviews, discussion, audio-visuals’.

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

The revised canons confirm that Oxford and Cambridge Universities can still grant licences to preach, notwithstanding that both were separated from the Church of England and secularised in the 19th century. Canon C8(2)(c) even provides that a minister who has such a licence ‘may preach the Word of God in any diocese … throughout England … without any further authority from the bishop thereof’. However, this privilege is hard to reconcile with s.15 of the Act of Uniformity 1662, which provides that a person is not permitted to preach in any place of public worship without the approval and licence of the appropriate bishop or Archbishop.

Although lay ministers may now preach, the administration of the 7 traditional sacraments is still reserved to ordained ministers.  Lay ministers may only assist the ordained to administer the sacraments (though any layperson may administer baptism in an emergency.)

In the Roman Catholic Church, by contrast, only clergy may preach at the Eucharist (Code of Canon Law 1983, canon 767).  This is not because clergy are necessarily better preachers than laypeople, but because of ‘the closely connected functions of teaching and sanctifying’ (cf Instruction on the Collaboration of Non-Ordained Faithful in the Sacred Ministry (1997)).  Only ordained ministers are capable of combining those two functions, which are both celebrated at the Eucharist.  (It should be remembered that ‘clergy’ in the Roman Catholic Church include married permanent deacons, as well as priests and bishops, and the function of permanent deacons may be hard to distinguish in practice from that of licensed lay readers.) Laypeople may preach on other occasions outside the Eucharist if this is ‘necessary or … advantageous’, subject to local law (canon 766).

Ignorance and sedition may not be the serious problems that they once were, but it is possible that a more exact and detailed regulation of catechesis and preaching might improve the quality and efficacy of the Church of England’s teaching ministry.

The Case of Archbishop Abbot

W Adam, ‘The Curious Incident of the Homicidal Archbishop: The Dispensation Granted to Archbishop George Abbot, 1621’ (September 2015) 17 Ecclesiastical Law Journal, p.306.

This article, just published, is an important contribution to the study of ecclesiastical law, in particular its relationship with canon law.  As the learned author points out, the case of Archbishop Abbot, though well known to history, is virtually unknown to ecclesiastical law.  This scholarly legal account of the case is therefore especially welcome.

In 1621, when Archbishop of Canterbury, Abbot accidentally killed a gamekeeper while out hunting.  This caused a flutter in ecclesiastical circles for a specific legal reason.  Mediaeval canon law provided that, if an ordained minister unlawfully killed someone, he was ipso facto (i.e automatically and immediately) inhibited from officiating as such.  Any official function performed by the minister while inhibited was therefore prima facie illegal or ‘irregular’.  This rule survives in modern Roman Catholic law (see canons 1041.4 and 1044.1.3 of the Code of Canon Law 1983).

One of the principal functions of an Archbishop is, of course, the consecration (ordination) of new bishops.  Four bishops-elect (including William Laud, Abbot’s successor as Archbishop of Canterbury) objected to being consecrated by Abbot, fearing that their consecrations would be irregular, and therefore ineffective to constitute them as Church of England bishops, on account of the mediaeval canon.

Abbot argued, with some justification, that the canon did not apply to his case.  The inquest into the gamekeeper’s death had exonerated him.  It found that the accident was caused by the gamekeeper’s own misadventure.  However, Adam’s account indicates that Abbot, like the four bishops-elect, accepted that the mediaeval canon still had the force of law, notwithstanding the break with Rome nearly a century earlier.

If (God forbid) a modern Archbishop were to be involved in such a terrible accident, any disciplinary consequences would be regulated by the Clergy Discipline Measure 2003.  However, there was no statutory regime concerning the discipline of bishops and Archbishops in the 17th century.  The canons of 1603 are also silent on the subject.

The effect of the mediaeval canon was that an ordained minister who was guilty of homicide was automatically inhibited unless and until his ecclesiastical superior granted a dispensation, thus restoring him to the exercise of his orders.  The Pope was the Archbishop of Canterbury’s superior before the Reformation.  Thus a mediaeval Archbishop in Abbot’s predicament would have applied to the Pope for a dispensation.

The papal jurisdiction was, of course, abolished at the Reformation.  The Ecclesiastical Licences Act 1533 provided that the Pope’s power to grant dispensations should in future be exercised by … the Archbishop of Canterbury! (s.3).  The Archbishop could hardly grant a dispensation to himself.  King James I settled the matter by appointing a commission of bishops and directing them to grant ‘a precautionary and excessive dispensation’ to Archbishop Abbot ‘concerning all irregularity and taint of irregularity, if perchance you have incurred any’.  Adam’s erudite article includes an English translation of the full Latin text of the dispensation.

As Adam points out, this dispensation could not plausibly have been authorised by the 1533 Act.  That Act regulated dispensations granted by the Archbishop, not to him.  The Act does empower the Monarch to commission other bishops to grant dispensations, but only if the Archbishop wrongfully refuses to grant them (s.11).

But if, contrary to the view of the protagonists in Abbot’s case, the mediaeval canon no longer had the force of law then no dispensation was necessary.  Adam refers to the Reformation legislation, which provided that mediaeval canons might continue in force, provided that they ‘be not contrary nor repugnant to the laws, statutes and customs of this realm, nor to the damage or hurt of the King’s prerogative royal’ (Submission of the Clergy Act 1533, s.7).

The purpose of the mediaeval canon, ridding the Church of homicidal clergy, is obviously just and reasonable.  Of course a priest or bishop (or Archbishop) who culpably causes a person’s death should be inhibited from officiating – but how?  The rule of ipso facto irregularity was extremely hurtful to the royal prerogative when applied to the Archbishop of Canterbury.  English law jealously guarded the Monarch’s right to appoint bishops.  The Archbishop of Canterbury is, of course, the senior bishop, the Primate of All England.  Not only that, the Monarch requires the Archbishop to consecrate his episcopal appointees.  The Archbishop is therefore the source of holy orders throughout the province.

If the rule of ipso facto irregularity applied to Archbishops and bishops, this would not deny the Monarch’s right to appoint them, but it could still cause grave difficulties.  The Monarch might appoint an Archbishop or bishop, but the mediaeval canon could render the appointee incapable of officiating as such.  The Archbishop might be incapable of consecrating the Monarch’s chosen bishops.  The lawfulness of consecrations performed by the Archbishop might be put in doubt.  This in turn might impugn the ordinations of priests by the bishops who had been consecrated by the Archbishop.  The regularity of the entire ordained ministry might be undermined.

It is hard to accept that a rule of mediaeval canon law would be allowed to survive the Reformation, when it had such potentially devastating consequences for the reformed Church.  If the rule remained in force, one would at least expect the law to confer a clear power on the Monarch (not just on bishops) to dispense from any irregularity in the exercise of the Archbishop’s function.  There is no such power.

The silence of the canons of 1603 on the discipline of Archbishops also suggests that this was regarded as a matter for the Monarch’s jurisdiction.

Adam does not reach any definite conclusion on the legal force of the mediaeval canon.  However, it is argued here that the canon did not survive the Reformation.  The dispensation was granted to humour a few tender episcopal consciences.  E Garth Moore relates that King James I ‘thought the whole matter ridiculous’ (Introduction to English Canon Law, 3rd edition 1993, p.135).  Even if Abbot had been held responsible for the gamekeeper’s death, his ability to officiate as Archbishop of Canterbury, and to consecrate new bishops lawfully, would have continued unless and until King James inhibited him from doing so.

Reformatio Legum Ecclesiasticarum: Of Martyrs and Mice

‘A Simpler Way of Reforming Church Legislation’ (General Synod Miscellaneous Paper 1103, issued 13th April 2015)

In the mid-20th century the cause of ecclesiastical law reform had a powerful supporter in the person of Archbishop Geoffrey Fisher, Archbishop of Canterbury from 1945 to 1961.  Fisher was not a lawyer, but as a former headmaster he possessed a natural appreciation of the importance of discipline.  As bishop, he had to contend with rebellious ritualists in the liturgical anarchy which followed Parliament’s rejection of the revised Prayer Book in the 1920s.

The commission that eventually produced the 1947 report The Canon Law of the Church of England was appointed before Fisher became Archbishop, but Fisher was apparently the driving force behind the revision of the canons of 1603.

The Archbishop’s interest in ecclesiastical law was not widely shared by his contemporaries.  One commentator was scornful: ‘An extraordinary feature of the Church of England in the post-war years was the fact that, faced … with its mission to the nation and … immense administrative problems, its representative bodies spent such an inordinate amount of time on the revision of the canon law …’ (Paul Welsby, A History of the Church of England 1945-80, OUP 1984, p.41).  Archbishop Fisher, he relates, ‘was probably never happier than when he was spending long hours in drafting canons in exact phraseology’ (p.42).  One dignitary apparently compared ‘canon law’ revision to rearranging the furniture when the house was on fire!

Despite his strong commitment, forceful personality and a lengthy tenure as Archbishop, Fisher’s efforts at law reform enjoyed only limited success.  The revised canons were not finalised until 1969, more than 20 years after the 1947 report and some years after Fisher’s departure from Lambeth Palace.  The late Owen Chadwick described the whole project as ‘a pregnancy that lasted for years and gave birth to a mouse’ (Michael Ramsey, OUP 1991, p.336).  (It must also be admitted that the Church in Wales never adopted Fisher’s canons, choosing to stick to the canons of 1603, and seems none the worse for this.)

Nor was Fisher the first Archbishop of Canterbury to be interested in law reform.  The Submission of the Clergy Act 1533 provided for the appointment of a royal commission with authority ‘to view, search and examine the said canons, constitutions and ordinances provincial and synodal heretofore made’ (s.2).  Archbishop Thomas Cranmer was put in charge of this commission.  Cranmer is now remembered for his unique contribution to Anglican liturgy, but he was also much occupied with the law.  Yet what his biographer calls ‘Cranmer’s cherished canon law revision project’, the reformatio legum ecclesiasticarum, never came to fruition (D MacCulloch, Thomas Cranmer, Yale 1996, p.500).  In 1640, on the eve of the civil war, Archbishop William Laud, another enthusiast for ecclesiastical discipline, promulged a new set of canons, but these were never recognised as lawful.

The 19th century litigation over public worship did nothing to enhance the prestige of ecclesiastical law.  Sir Robert Phillimore, the original author of Phillimore’s Ecclesiastical Law, strove gallantly to produce a workable, coherent liturgical law.  His judgment in the case of Martin v Mackonochie (1868) 2 Admiralty and Ecclesiastical Cases 116 is 130 pages long.  However, his formidable erudition was in vain.  As Dean of the Arches, he was liable to be overruled by the Privy Council.  He himself observed wryly that ‘The cross was holden to be lawful when on a chancel screen [but] unlawful when attached to the holy table [i.e the altar].  The result seems to be that a cross is lawful everywhere except on the holy table.  It is not easy to discover any principle on which [this law] rest[s]’ (Ecclesiastical Law, pp.732-3).

In 1874 Parliament passed the Public Worship Regulation Act, an attempt to enforce the 1662 regime of public worship on romanizing ritualists.  (The original Bill was apparently drafted by yet another Archbishop of Canterbury, Archibald Campbell Tait).  It failed.  Clergy who disdained the Act’s provisions were imprisoned, thereby becoming martyrs for the ritualist cause.  In 1906 a royal commission concluded that the 1662 regime was unenforceable.  Yet the present regime of public worship was not finally settled until the Worship and Doctrine Measure 1974, a full 100 years after the Public Worship Regulation Act.  Archbishop Michael Ramsey spent his last day in office trying (successfully) to persuade the House of Lords to approve the Measure.

The anarchic state of public worship regulation for such a long time made ecclesiastical law appear irrelevant at best and obstructive at worst.  It is not surprising that Archbishop Fisher’s efforts at law reform met with apathy and scepticism.

This depressing narrative may suggest that ecclesiastical law reform for its own sake is a hopeless cause.  If even Archbishops of Canterbury are unable to effect significant law reform, who can?

However, there is a glimmer of hope on the horizon.  The General Synod’s consultation paper, cited above, seems to envisage a new programme of law reform.  The Ecclesiastical Law Society has just issued its dignified Response to the consultation paper (published on its internet website 20th July 2015).

The Response laments the lack of interest in law reform hitherto.  The Society has been ‘a voice crying in the wilderness’ on this subject (para 2.3).  The Response relates, with a hint of wounded pride, that the Society proposed its own programme of law reform as long ago as 1987, but this was ignored by the ungrateful legislators.  Nevertheless, despite being thus ill-used for so many years, the Society magnanimously ‘renews its offer to place at the General Synod’s disposal its collective experience and the expertise of its members’.

The consultation paper refers to ‘The Presenting Problem‘ (singular), but it seems to identify two separate problems:

(1) the legislative procedure laid down by the Church of England Assembly (Powers) Act 1919 is too lengthy and onerous (cf paras 7-8) and

(2) the present volume of ecclesiastical legislation is too large and complex.

These problems are different in character, and should not be confused.  Problem (1) is procedural, and it is concerned with future lawmaking.  Problem (2), by contrast, concerns the substantive law, not procedure, and it is concerned with the past, with legislation that has already been made.

What are the proposed solutions to these two different problems?

(1) Most ecclesiastical legislation should in future be secondary legislation, in effect statutory instruments.  This means that it will no longer be subject to the scrutiny of the Ecclesiastical Committee of Parliament, as required by s.3 of the 1919 Act.

This is reasonable.  As the consultation paper points out, most secular legislation is now secondary legislation, so why should most ecclesiastical legislation be primary legislation?  We have suggested elsewhere that the Ecclesiastical Committee may have outlasted its usefulness (‘Does Parliament need an Ecclesiastical Committee?’, filed below).  The Committee’s essential function, which is safeguarding ‘the constitutional rights of all … subjects’ (s.3(3)) is now exercised by the High Court, which has power to ‘quash’ secondary legislation that is considered unconstitutional.

The Ecclesiastical Law Society gives cautious approval to the proposal, suggesting that secondary legislation may be appropriate in matters where the Church of England is ‘properly autonomous’, while retaining primary legislation for matters which engage Church – State relations and the rights of individuals (Response, para 3.4).

This distinction is important.  The 1919 Act permits a very broad scope to Church Measures.  Measures may legislate on anything ‘touching matters concerning the Church of England’ (recital).  If secondary legislation is to become the norm of ecclesiastical law, its permitted scope will have to be narrower than that.

(2) The consultation paper proposes ‘pruning and simplifying the Church’s over-elaborate statute book’ (para 12), by means of a statutory power similar to that conferred by the Legislative and Regulatory Reform Act 2006.  This Act empowers the (secular) government to amend both primary and secondary legislation by order.  An order may be made for one of two purposes:

(1) ‘removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation’ (s.1, quoted at para 10) or

(2) simplifying the language of primary legislation so that it is more accessible or more easily understood.

The consultation paper’s advocacy of a burden-reducing power similar to (1) may be based on a careless reading of the 2006 Act.  The ‘persons’ referred to in the Act are private persons, not public authorities and officials.    The Act is intended to relieve citizens, not officials.  S.1(4) of the Act makes clear that an order ‘may not be made … in relation to any burden which affects only a Minister of the Crown or government department, unless it affects the Minister or department in the exercise of a regulatory function’.  The reference to a regulatory function means that an order may be made to relieve citizens of a burden imposed on them by a particular regulatory regime.  The Act is not intended to lighten the load on public authorities, only on persons whose activities are subject to regulation by those authorities.

It is argued that there is no proper scope for an order of this type in the Church.  Apart from the regulation of weddings and funerals (in particular the fees involved), it is hard to see how ecclesiastical legislation imposes any burden on ordinary churchgoers, let alone non-churchgoers.  Parishioners may be affected by pastoral reorganisation (e.g closure of a church or merger of parishes) or by works done to the parish church, but ecclesiastical law makes scrupulous provision for reorganisation and faculty proposals to be publicly advertised and objections to them considered.  The ‘burden’ of ecclesiastical legislation falls almost exclusively on ecclesiastical officials and authorities and their employees, i.e those involved in the Church’s governance and ministry.  Yet, as mentioned, the order under the 2006 Act does not apply to officials and authorities.

It may, of course, be appropriate to remove a particular burden on an ecclesiastical institution or office, or to alter its function in some way.  But this is a matter for ordinary legislation, not any special order.  As the Ecclesiastical Law Society points out, obsolete legislation could easily be repealed wholesale by an uncontroversial Revision Measure (Response, para 4.4).

It is also hard to accept to accept that ecclesiastical legislation is unduly complex and in need of a language-simplifying order similar to (2).  Some ecclesiastical legislation, perhaps even quite a lot of it, is undeniably boring to read, but that does not make it complex.  It is certainly easier to read than much secular law.  Reading ecclesiastical legislation requires a knowledge of its subject-matter (the institutions, ministry and property of the Church) and a degree of patience.  Ecclesiastical officeholders and employees should be expected to possess both, and, as mentioned, they are the only people who are likely to be directly affected by most ecclesiastical legislation.  And they can always call on free advice from the Church’s legal officers.

It may well be true that some ecclesiastical legislation is ‘over-elaborate’, but whose fault is that?  Since 1919, the Church has been free to legislate for itself, subject only to the veto of Parliament.  No external authority forces legislation on the Church.  Any difficulty is therefore entirely self-inflicted.  If the General Synod is troubled by the volume and detail of legislation, it should just approve less and simpler legislation.

Some provisions of Church Measures can indeed be irritatingly petty and pedantic.  There are seemingly endless requirements to obtain consent, consult, inform, consider representations, convene meetings.  Not much is left to the wisdom of common law, let alone common sense and common courtesy.  A casual reader might conclude that the draftsmen of ecclesiastical legislation must have a low opinion of the competence and integrity of its subjects!

On the other hand, the minuteness of ecclesiastical legislation may be a credit to synodical government.  The synodical process, and the ecclesiastical legislation which it has produced, may be admired for its inclusiveness, the stable balance of conflicting interests that it has maintained since 1919.

The legislative importance of a particular matter is a question of interest.  The synodical process is a dialogue between a number of interests.  Bishops seek effective powers of oversight.  Lesser clergy seek autonomy and security of tenure.  Persons of particular ‘churchmanship’ seek to express this in their preferred styles of worship, and under the guidance of like-minded clergy (and clergy of particular gender, of course).  Ecclesiastical judges, with the conservation lobby behind them, seek to maintain their control over dealings with Church property.  Cathedral chapters seek to preserve their mediaeval privileges.  The Church Commissioners seek to avoid excessive demands on their resources.  Diocesan authorities seek to manage their investments efficiently.  Legal advisers seek to minimise the risk of litigation.

The settlement of ecclesiastical law on the basis of interest may be another reason for Fisher’s limited success.  His project did not engage any practical vested interest in the Church, only a minority intellectual interest, so it had little momentum.  (Perhaps Cranmer’s project failed for the same reason.)

Modern ecclesiastical legislation may be praised for its pragmatism.  However, there is an unedifying contrast between its jealous micro-regulation of the Church’s property and interest, and its much briefer references to the Church’s religion.  The selection and training of candidates for the ordained ministry is almost entirely regulated by quasi-legislation, i.e informal guidelines and codes of practice, not by proper law.  The remarriage of divorced persons in church is also dealt with by quasi-legislation which contradicts the proper law forbidding such remarriage.  There is virtually no legislation concerning catechesis, or the use of the Bible in worship.

The legislators may reply that this is as it should be.  Legal regulation of religion should be minimal.  The proper function of ecclesiastical law, like secular law, is the regulation of worldly matters such as property, not other-worldly ones.  It is anachronistic and pre-modern to suggest that the separation of law and religion undermines both, and even separates man from God, and that human rights and human authority can only be understood correctly in the context of the rights and authority of God.

 

Ecclesiastical Burial: Disposal, Decency and Disturbance

This is an account of ecclesiastical law’s treatment of human remains.  It does not address all the legal rights, duties and functions connected with ecclesiastical burial.

Disposal

There is a helpful summary of ecclesiastical burial rights in the case of West Pennard Churchyard (1991) 4 All England Reports 124:

(1)  the common law right of burial in the churchyard (or other ecclesiastical burial ground) extends only to resident parishioners, and to strangers who die in the parish.

(2)  The common law right is extended by the Miscellaneous Provisions Measure 1976 to persons on the parish electoral roll (s.6(1)).

(3)  Anyone else seeking burial in the churchyard may obtain permission from the incumbent, under s.6(2) of the 1976 Measure.  S.6(2) provides that the incumbent’s discretion is subject to ‘general guidance given by the parochial church council’ (PCC).

(4)  A person may acquire a right of burial by obtaining a reservation faculty.  This is ‘wholly in the judicial discretion of the [consistory] court’ (p.126).  Such a faculty may, exceptionally, be granted to a non-parishioner.

Rights of burial are obviously subject to the availability of space in the churchyard.  In West Pennard, the consistory court stated that ‘no churchyard is full and ripe for closure until all parts of it in which reburial is possible have been buried over again at least once’.

The Miscellaneous Provisions Measure 1992 confirms that a person who has a right of burial in a churchyard has the same right to burial of his cremated remains (s.3(1)).  It further provides that, although the common law right applies only to open churchyards, the burial of cremated ashes in a closed churchyard remains permissible under the authority of a faculty.  A faculty may also permit the designation of a particular area within a closed churchyard for the burial of cremated remains generally.

Apart from these general provisions, it is possible that a person may enjoy a special statutory right of burial.  For example, the Consecration of Churchyards Act 1867 empowers a donor of land which is added to a churchyard to reserve a right of burial over part of that land, not to exceed one-sixth of the total (s.9).  Any such reservation must be recorded on the instrument of consecration.

There is a common law right to burial in the churchyard, but no legal duty to be buried there.  Halsbury’s Laws states that ‘There is a duty to dispose decently of a dead body on the personal representatives or person lawfully in possession of the corpse’ (5th edition, vol 24 title Cremation and Burial, para 1103), but this does not require an ecclesiastical burial.

Halsbury’s Laws also affirms that ‘The general rule of common law still stands, that there is no property in a dead body’ (para 1105).  This rule applies to bodies buried on ecclesiastical premises.  The duty to dispose of the body gives to those responsible a right of possession of the corpse.  Once the corpse has been buried, however, this right of possession ceases, as the duty has been completed.

In Burial Board of St. Margaret’s Rochester v Thompson (1871) 40 Law Journal New Series 213, the Court of Common Pleas explained that ‘the [common] law [of ecclesiastical burial] was plain: dead Christian parishioners had a right

[1] to have burial within the consecrated burial-yard of the parish and

[2] to have the ordinary [burial] service of the Church performed over them’ (p.217).

The ecclesiastical duty was divided between the clergyman and the sexton (or verger): ‘the clergyman had to perform the religious part of the ceremony, the sexton the ministerial [part]’.  The ‘religious’ duty was to read the burial service.  The ‘ministerial’ duty was twofold, to (1) dig the grave and (2) toll the bell.

Thus common law conferred on the parishioner the right both to burial and to a burial service.  The only distinction was that the work was divided between two different ecclesiastical persons.

However, it was not possible to choose burial but reject a burial service (or vice versa).  Canon 68 of 1603 made clear that burial and the burial service had to be performed together.  The Court of the Arches added that ‘our Church knows no such indecency as putting a body in the consecrated ground without service being at the same time performed’ (Kemp v Wickes (1809) 161 English Reports 1320, at p.1330). In R v Coleridge (1819) 161 English Reports 1343, Chief Justice Abbott confirmed the secular courts’ acceptance that ‘the mode of burial is of ecclesiastical cognisance alone’.

The inseparability of the burial from the Anglican burial rite caused friction between the Established Church and other denominations, who wished to bury their departed adherents according to their own rites.  The ‘churchyards controversy’ was particularly acute in Wales.  The Welsh Church Act 1914 originally provided for the secularisation of all churchyards, by transferring them into the ownership and control of the local authorities (though many of them were later handed back to the Church, under the Welsh Church (Burial Grounds) Act 1945, because the local authorities could not afford to maintain them).

The older ecclesiastical law only permitted burial rites in the churchyard or other ecclesiastical burial ground.    As churchyards became closed to further burials in the 19th century, municipal cemeteries were opened. Cemeteries may include a part specially consecrated for Anglican use.  The consecrated part of a cemetery is treated as an ecclesiastical burial ground.

However, the link between ecclesiastical burial and ecclesiastical (or consecrated) ground has been weakened in modern times.  The Burial Laws Amendment Act 1880 eased the sectarian tensions by permitting burial of non-Anglicans in a churchyard ‘either without any religious service, or with [a] Christian and orderly service at the grave’ (s.6). Therefore non-Christian religious services are still not permitted.

Shortage of consecrated burial space may also necessitate ecclesiastical burial in unconsecrated ground.  The 1880 Act makes clear that burial rites may be used in unconsecrated ground (s.12).  Canon B38(5) of the revised canons provides that, on such occasions, the officiating minister must first bless the unconsecrated grave.

Crematoria are unconsecrated, of course, and often a considerable distance from the church and churchyard.  Canon B38(4) therefore provides that, in cremations, ‘the burial service may precede, accompany or follow the cremation, and may be held either in the church or at the crematorium’.

Canon B38(4) further provides that cremated ashes ‘should be interred or deposited, by a minister, in consecrated ground’.  Of course, the Church is not in a position to enforce this latter provision, since the minister cannot have possession or control of the ashes at the crematorium.  The deceased person’s family may prefer an unhallowed destination for the ashes (e.g a vase on the living room mantelpiece, or scattering in some place of sentimental importance).

Decency

Phillimore’s Ecclesiastical Law suggests that ‘[the] practice of praying for the dead seems to have been the true origin of churchyards’ (2nd ed, 1895, p.658).  By burying the corpses of deceased parishioners in the very centre of the parish, in and around the parish church, rather than in some discreet out of the way place, the mediaeval Catholic Church emphasised the communion between the living and the dead, the Church on earth and the metaphysical Church.  As Phillimore implies, it encouraged the parishioners to pray for the souls of the departed, and, of course, to remember their own mortality.  The old rule of canon law which denied burial in consecrated ground to the unbaptised, excommunicates and suicides made the point that such persons were outside the communion of the Church.

In Blagdon Cemetery (2002) 4 All England Reports 482 the Court of the Arches made an unconvincing attempt to update the theological position.  It referred to ‘The general presumption of permanence [of burial] … [which] originates in the Christian theology of burial.  This theology underlies the consecration of land … for burials and … the [burial] rites of the Church of England …’ (pp.486-7).  For this reason ‘It is … very important that cemetery managers and funeral directors give a simple explanation to the bereaved about the difference between consecrated land (to which the theology of burial has application) and unconsecrated land’ (pp.487-8).

Yet this alleged ‘Christian theology’, with its assertion of a link between consecration and burial rites, is hard to reconcile with the modern ecclesiastical law discussed above, which has weakened the link between consecration and burial.  It is also hard to see how human remains in an unconsecrated municipal cemetery are treated any differently from those in a churchyard (let alone the consecrated part of the same municipal cemetery).  How is burial any less ‘permanent’ in unconsecrated ground than in consecrated ground?

The only principle apparent from the modern ecclesiastical law is that of decent treatment of the dead.  Decency is, at least to some extent, a matter of cultural value judgement.  Cremation was a controversial practice at first.  The Cremation Act 1902 gave clergy the right to refuse to officiate at crematoria (s.11). This provision was not repealed until as late as 1992, by the Miscellaneous Provisions Measure of that year.  However, Canon B38(3) now confirms that ‘cremation of a dead body is lawful in connection with Christian burial’.

The case of Caistor-on-Sea (1958) 1 Weekly Law Reports 309 concerned a proposal to reinter about 80 unidentifiable dead bodies in a communal grave.  The chancellor refused to grant a faculty for this work.  However, he noted that ‘Although communal burial may seem distasteful … yet that practice has long been followed, particularly in cases of natural disaster: it followed often … after heavy bombing raids during the war …’ (p.311).

Modern legislation makes clear that decent treatment of the dead is not inconsistent with public amenity.  Thus the Open Spaces Act 1906 empowers a local authority to hold a closed burial ground, including a closed churchyard, for ‘the enjoyment thereof by the public’ as an open space (s.10).  Sporting activities are allowed on an open space, subject to faculty.  It may also be permissible to use an open space as a carpark.

The Disused Burial Grounds Act 1884 permits building on a closed churchyard, but only for the purpose of ‘enlarging’ an adjoining church or chapel, and subject to faculty (s.3).  The Mission and Pastoral Measure 2011 provides that a statutory scheme under the Measure (not a faculty) may authorise building on burial grounds, but only if there have been no burials in the previous 50 years, or, if there have been more recent burials, no relative or personal representative objects (s.44(4)).  A very recent change in the law means that a faculty can now be granted for building on a disused burial ground, subject to the same conditions as for a statutory scheme, even if the building does not constitute an enlargement of the church (Care of Churches and Ecclesiastical Jurisdiction Measure 1991, s.18A, which was inserted by an Amendment Measure of 2015, s.4).

The burial of human remains is a different subject from the building of gravestones and other funerary monuments.  Gravestones are not inseparable from the remains that they commemorate.  The court observed in Holy Trinity Church, Freckleton (1995) 3 Weekly Law Reports 299 that ‘The right to be buried … does not include a right to erect a memorial’ (p.1590).  In St. James, Heywood (1982) 1 Weekly Law Reports 1289, the chancellor allowed that ‘gravestones do have a very special significance by being placed above burial places of those commemorated’ (p.1292).  However, he maintained that ‘this significance … probably is largely emotional’.  He pointed out that it is not uncommon for memorials to be erected inside a church to commemorate a person buried outside it.

Decent treatment of the dead should not be confused with delicacy to family feelings.  If a gravestone or monument is to be moved, this may cause distress to the deceased’s relatives (and for wholly understandable reasons), but nevertheless will not engage the principle of decent treatment of the deceased’s remains.

Gravestones and monuments, unlike remains, are property and therefore capable of legal ownership.

Disturbance

The account of ecclesiastical burial thus far suggests two points concerning the disturbance or exhumation of human remains:

(1) if there is no property in a dead body, it follows that relatives can have no right either to demand the exhumation of the body, or to veto its exhumation.  The body does not belong to them

(2) if exhumation is permitted too readily or casually, this is inconsistent with the principle of decent treatment of the dead.

In Blagdon Cemetery (2002) 4 All England Reports 482 the Court of the Arches permitted the exhumation of a body for reburial in an unconsecrated municipal cemetery.  This decision was consistent with the modern ecclesiastical law discussed earlier (though it was inconsistent with the Court’s own theological musings on burial in consecrated ground).  Ecclesiastical burial is no longer confined to consecrated ground.  It is, however, necessary for the ecclesiastical court to be satisfied that the remains will be decently reinterred and cared for elsewhere.

The Court made the sensible point that, if there is a proposal to remove a body to the unconsecrated part of a local authority cemetery ‘it is reasonable for the consistory court to conclude … that the new grave will be cared for in a seemly manner and will be protected in this sense [of being cared for]’, though ‘Reinterment in unconsecrated ground which is not a local authority cemetery is a different matter.  No general inference of … suitability … can properly be drawn’ (p.486).

Cremated remains may be buried in caskets, and will therefore be capable of exhumation (Christ Church, Alsager (1999) Family 142).

Ecclesiastical exhumation cases may be divided into three categories

(1) public

(2) private (family)

(3) scientific interest.

(1) Public.  A reordering or development of a churchyard may well involve disturbance of remains buried therein.  Like other dealings with churches and churchyards, this is a matter for the faculty jurisdiction, though subject to s.3 of the Disused Burial Grounds Act 1884 mentioned earlier.

The Mission and Pastoral Measure 2011 provides for the disposal of human remains where a church is ‘closed for regular public worship’ (i.e made redundant) and where the building or land is given over to secular use (at s.78 and schedule 6).  The ecclesiastical court is not involved in this procedure, and no faculty is required. Instead the landowner (i.e the owner/lessee/licensee) of the land or building must advertise its intention to dispose of the remains before doing so.  Personal representatives and relatives must also be informed, if the interments are less than 25 years old.  Personal representatives and relatives (or the War Graves Commission, if appropriate) may claim the remains for reinterment elsewhere, or for cremation.  Otherwise the landowner must remove the remains and reinter them in land indicated by the bishop as ‘reasonably available’.  If the bishop gives no direction, the landowner/lessee must either reinter the remains in another burial ground, or cremate them.  All exhumations, reinterments and cremations are subject to any general directions given by the Secretary of State.

(2) Private faculties are often sought by relatives to remove a loved one’s remains to another location.  One difference between public and private exhumation cases is that, in the former, exhumation may cause distress if it is ordered, while in the latter, distress is likely if exhumation is refused.

Mistake is an obvious reason for ordering private exhumation.  If those involved in the burial were unaware of something which, had it been known at the time, would have caused them to dispose of the deceased differently, then the ecclesiastical court may order exhumation, rather as the High Court may set aside the action of a trustee for mistake.

Mark Hill refers to two unpleasant cases where exhumation was granted after an extra-marital affair and sexual abuse of a child, respectively, came to light after the funerals of the perpetrators (Ecclesiastical Law, 3rd edition (2007), p.268n).  When they discovered the truth, the relatives understandably did not care to be reminded of the perpetrators’ existence, nor to have the remains buried near those of other family members.

In Watson v Howard (also known as St Luke’s, Holbeach Hurn) (1990) 2 All England Reports 749, the consistory court ordered the exhumation of Mrs Howard’s remains from a plot that had been reserved, by faculty, to Mrs Watson.  The bereaved family had not been aware of Mrs Watson’s faculty.  However, Mrs Watson insisted on her legal priority, so Mrs Howard had to be moved elsewhere.

The Court of the Arches in Blagdon was concerned that private exhumations were being permitted too readily.  Although it did not limit exhumation to cases of mistake, it held that ‘a faculty for [private] exhumation will only be exceptionally granted’ (p.389).  It concluded sympathetically that the case before it was such an exception. The deceased had died suddenly, at a young age.  He had expressed no wish as to his place of burial.  There was no link between the deceased and the community where he was buried.  Moreover, his parents’ itinerant working circumstances had prevented them acquiring a permanent home at the time of his death.

Apart from this, the Court suggested that exhumation might be ordered if the medical condition of a bereaved relative demands it, though ‘any medical reasons … would have to be very powerful indeed … serious psychiatric or psychological problems … [linked to] the question of location of the grave …’ (p.490).  However, exhumation is unlikely to be permitted merely on account of a relative’s ‘advancing years and deteriorating health and change of place of residence’ (p.489).

(3) Scientific Interest.  Exhumations may be sought so that the corpse can be examined for reasons of historical or other scientific interest.  The leading case in this category is Holy Trinity, Bosham (2004) 2 Weekly Law Reports 833, which concerned remains alleged to be those of Harold II, the last Saxon King of England.  The case suggests that two criteria must be satisfied for a faculty to be granted:

(1) the subject of the investigation must be ‘a matter of great national, historical or other importance’ (p.845) and

(2) the investigation itself must hold out ‘the prospect of obtaining a meaningful result’ (p.846).

A faculty was refused.  The investigation of King Harold’s alleged remains satisfied criterion (1), but not (2).  The court accepted evidence that there would be no scientific means of establishing the identity of the remains, due to the passage of time.

The consistory court’s decision on King Harold was followed by the Court of the Arches in the St. Nicholas, Sevenoaks (2005) 1 Weekly Law Reports 1011, in which the Court refused to permit DNA testing on the remains of a man whose descendants believed him to be an illegitimate grandson of Queen Victoria.  However, exhumation was permitted in St. Mary Sledmere (2007) 1 Weekly Law Reports 1538, in favour of a professor of virology who wished to examine two bodies to carry out research into the influenza virus.

The court in Sledmere added a slight twist to the two Bosham criteria: ‘if public benefit is only in terms of increased historical knowledge … a high likelihood of success [is] required’ (p.1542).  However, if the case concerns ‘advances in treatment of dangerous diseases, then … an uncertain chance of success may suffice’.  In other words, the greater the importance of the investigation (criterion (1)) the easier it will be to satisfy criterion (2).  Medicine is more important than history.