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Tag: Canons of the Church of England

Apostolicae Curae 1896: A Vicar is not a Catholic Priest

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

Pope Leo XIII

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

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

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

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

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

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

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

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

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

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

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

Apostolicae Curae

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

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

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

The Pope gave 3 reasons for this withering conclusion:

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

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

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

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

Saepius Officio

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

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

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

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

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

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

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

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

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

A Century On

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

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

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

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

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

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

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

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

Papal Teaching Authority

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

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

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

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

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

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

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

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

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

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

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

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

To answer this question, it is necessary to distinguish between

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

(2) its function (which is not).

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

Anglican Ministry: Catholic Structure, Protestant Function

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Priestly Function and the Formularies

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Church Attendance

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

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

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

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

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

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

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

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

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

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

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

Divine Service

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

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

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

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

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

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

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

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

(2) modern services.

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

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

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

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

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

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

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

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

(1) surplice or alb and

(2) scarf or stole.

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) kneeling and

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

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

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

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

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

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

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

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

Word and Sacrament

Divine Service is centred around

(1) the Bible and

(2) the Holy Communion, or Eucharist.

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

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

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

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

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

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

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

The Sunday school curriculum must be based on

(a) the Bible

(b) the Book of Common Prayer and

(c) ‘especially’ the Church Catechism.

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

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

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

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

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

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

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

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

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

Holy Communion comprises 2 distinct rites

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

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

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

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

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

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

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

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

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

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

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

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

Smells and Bells: Services and Ceremonies

The Abolition of the 1662 Regime

When studying ecclesiastical law for the first time, it comes as a surprise to learn that liturgical practices now widespread, even universal, in the Church of England, practices with which the student has been familiar since early childhood, were once considered illegal.  The reasons for this are discussed in 2 posts, on the Ornaments Rubric and the Lincoln Judgment, filed below.

Some liturgical practices have been accepted more readily than others.  The burning of incense has probably been the most consistently controversial practice.  (That and the ringing of a bell during the Prayer of Consecration in the Communion Service.)  ‘Smells and bells’ continued to inspire mild resentment until relatively recently, and were identified with a small clique of Anglo-Catholic ritualists.

In the case of Martin v Mackonochie (1868) Law Reports 2 Admiralty and Ecclesiastical 116, Sir Robert Phillimore, the Dean of the Arches, found that incense ‘is not directly ordered in any Prayer Book, canon, injunction, formulary or visitation article of the Church of England since the Reformation’ (p.215).  He therefore concluded, with obvious reluctance, that ‘although … it be an ancient, innocent and pleasing custom, I am constrained to pronounce that the use of it … is illegal’.

There is actually nothing Christian or ‘catholic’ about incense.  It is an inheritance from pagan antiquity (which may be a good reason for opposing its use in church services).  But the aesthetic charms which seduced Sir Robert have evidently prevailed at last.  Incense now seems to be uncontroversial and widely used in cathedrals and churches throughout England, by Archbishops and bishops as well as lesser clergy, its use no longer confined to a small clique.

Are the liturgical practices forbidden in Victorian times now legal?  Surely they must be, or they would not be so widespread?  But it still behoves ecclesiastical lawyers to explain how they are lawful, even if nobody else is interested.  General acceptance per se does not prove legality.

The full title of the Book of Common Prayer is ‘The Book of Common Prayer and Administration of the Sacraments, and other Rites and Ceremonies of the Church according to the Use of the Church of England’.  In Martin v Mackonochie, Phillimore defined rites as ‘services expressed in words’ and ceremonies as ‘gestures or acts’ (pp.135-6).  On this definition the burning of incense is a liturgical action, therefore a ceremony.

The Preface of the Book of the Common Prayer concerning ceremonies is subtitled ‘Why Some be Abolished, and Some Retained‘.  This was the basis of the Victorian case law.  All ceremonies not retained in the Prayer Book (either expressly or at least by necessary implication) had been abolished, including incense.  Their use was therefore illegal.

The authority for the Prayer Book, including the Preface, came from the Act of Uniformity 1662. just as previous versions of the Prayer Book, from 1549 onwards, depended on earlier Acts of Uniformity.

The Act of Uniformity was repealed by the Worship and Doctrine Measure 1974.  Schedule 2 of the Measure says of the 1662 Act ‘Extent of Repeal … The whole Act except ss.10 and 15′ (which sections provide that only episcopally ordained clergy may be appointed to benefices and officiate at Holy Communion, and that preachers or ‘lecturers’ must be licensed).

S.1 of the Worship and Doctrine Measure empowers the General Synod ‘to make provision by canon with respect to worship’, and that ‘any such canon shall have effect notwithstanding anything inconsistent therewith … in … the rubrics of the Book of Common Prayer’.

S.5(2) of the 1974 Measure expressly includes the prefaces of the Prayer Book within its definition of ‘rubrics’.  The only 1662 rubric which continued to have the force of law after 1974 was that concerning the publication of banns of matrimony (s.1(1)(b)).

Commentaries on ecclesiastical law do not explain the effect of the 1974 Measure with anything like sufficient clarity.  The reader may be left with the impression that the 1974 Measure merely amended the 1662 regime, rather than replaced it.  The suggestion persists that the rubrics and prefaces of the Book of Common Prayer continue to have the force of law, and that the cases thereon are, or at least may be, still ‘good law’ (i.e current law).  (The confused cogitations of Chancellor Bursell QC, the leading commentator on the subject, are discussed in other posts, filed below in this category.)

Yet, subject to the narrow exceptions just mentioned, the 1662 regime of public worship is no more.  It has ceased to be.  The voluminous case law concerning liturgical ceremonies can therefore no longer be good law.  It may be true that the case law forms an important part of the context of the modern post-1974 law, explaining why and how the new law came to be what it is.  So it may still be relevant to the study of ecclesiastical law.  Nevertheless it is no longer part of the law itself.

The 1974 Regime

The repeal of the 1662 regime could not, of course, have the effect of reviving or reinstating the mediaeval liturgical practices abolished at the Reformation.  However, it does mean that liturgical practices not retained or referred to in the Book of Common Prayer are prima facie permitted, no longer forbidden – subject, of course, to the canons made by the General Synod under s.1 of the Worship and Doctrine Measure.

Public worship is now governed principally by canons B1 to B5 of the revised canons (‘the liturgical canons’), which were promulged under the authority of s.1.

Although the 1974 Measure provides greater diversity of worship than the 1662 regime, it is far from being a liturgical free-for-all.  Canon B1 is entitled ‘Conformity of Worship‘, and contains the strict injunction that ‘Every minister shall use only the forms of service authorised by this canon’ (B1(2)).

However, there are 2 exceptions to this rule, at canon B5

(1) an officiating minister may introduce ‘variations which are not of substantial importance’ into an official service and

(2) an incumbent (not just any officiating minister) may use or permit ‘forms of service considered suitable by him’, but only ‘on occasions for which no provision is made in [the official services]’.

The 1974 Measure specifically authorised the General Synod to allow these exceptions (s.1(5)).  However, the discretionary powers in canon B5 are not unfettered, but subject to the ‘pastoral guidance, advice or directions’ of the bishop (B5(4)).

If an official service contains a rubric or direction expressly permitting the use of incense (or some other ceremony considered illegal under the 1662 regime) then this ceremony will obviously be lawful for use in that service.  The legal position will be equally clear if an official service positively provides that incense shall not be used at the service.  But what if (as seems to be the case in practice) official forms of service are silent about such ceremonies?

To answer this question it is first necessary to answer another question: what is a ‘form of service’?

The Worship and Doctrine Measure defines a form of service as ‘any order, service, prayer, rite or ceremony’ (s.5(2)).  This reference to rites and ceremonies echoes the language of 1662.

The revised canons at first gave no definition of ‘form of service’.  Then in 1994, 20 years after the Worship and Doctrine Measure was passed, the liturgical canons were amended.  Canon B1(3) now provides that

form of service shall be construed as including

(i)   the prayers known as collects

(ii)  the lessons designated in any Table of Lessons

(iii) any other matter to be used as part of a service

(iv) any Table of Rules for regulating a service

(v)  any [approved] Table of Holy Days …’.

Thus the explicit reference to ceremonies in the 1974 Measure does not appear in the liturgical canons, either in canon B1(3) or elsewhere.  (The phrase ‘rites and ceremonies’ does appear in canon B3(1), but only as part of the definition of a church building, not in relation to a form of service.)

It is hard to believe that this omission was accidental.  There may have been a deliberate policy of silence on the subject, to avoid reviving old disputes, or from fear that the 1974 regime would prove just as ineffectual at regulating ceremonies as its predecessor.

However, although canon B1(3) does not expressly refer to ‘ceremonies’, it does define ‘form of service’ as ‘any other matter to be used as part of a service’.  Is this wording broad enough to include ceremonies?  Chancellor Bursell considered that the reference to ‘forms of service’ in the liturgical canons does indeed include ceremonies, and that therefore ceremonies are regulated by canons B1 to B5 (cf St John’s, Chopwell (1995) 3 Weekly Law Reports 606, p.611 and p.615).

If Bursell is right about this (and he may be) then prima facie the position will be similar to that which obtained in Victorian times.  Ceremonies will be just as illegal now as they were then, unless they are clearly permitted by the rubrics of an official service.

But now, of course, there are the 2 exceptions to the general rule that only official forms of service may be used.  The burning of incense and other ceremonies will be lawful if

(1) they can be accommodated within the canon B5 discretions, and

(2) the bishop is prepared to accept them.

However, the language of canon B5 may not be very apt to permit the use of incense and other ritualistic practices.  Exception (2) refers to forms of service for special occasions, not to ordinary Sunday and weekday worship.  Exception (1) clearly does apply to ordinary worship.  However, the word ‘variations’ suggests that the exception concerns the alteration of the liturgical text, its structure and wording.  It does not refer to the addition of ceremonies that are not referred to in that text.

Many years before the 1974 Measure was passed, the report The Canon Law of the Church of England (1947) proposed a draft canon which would have permitted ‘deviations (whether by way of addition, omission, alternative use or otherwise)’ from Prayer Book services (p.113), but this proposal was not followed.

In the view of the long and bitter controversy over ritualism, it may be hard to argue that ritualistic practices are ‘not of substantial importance’.  Clearly they were very important both to the ritualists and their Low Church opponents.  In the 19th century a few ritualist clergy were even prepared to go to prison rather than conform to the 1662 regime.  It is also unclear why a ceremony should be permitted if it is ‘not of substantial importance’, but forbidden if it is of substantial importance.

A Policy of Silence

It is therefore argued that, contrary to Bursell’s view, canons B1 to B5 do not attempt any general regulation of liturgical ceremonies.  The Worship and Doctrine Measure certainly empowers the General Synod to regulate ceremonies, but the General Synod has (thus far) not chosen to exercise the power.

This is the obvious explanation for the lack of explicit reference to ceremonies in the liturgical canons.  The enigmatic reference in canon B1(3) to ‘any other matter to be used as part of a service’ should be understood as a reference to the written texts of services, not to ceremonies.

If it is accepted that canons B1 to B5 do not refer to ceremonies in general, this avoids an overly strict, neo-Victorian interpretation of the principle of liturgical conformity.  It also avoids the awkwardness of accommodating ceremonies within the language of the canon B5 exceptions.

The principle of conformity means that

(1) clergy must only use official forms of service, not services devised by themselves, or services ‘borrowed’ from other sources, except for a special occasion for which no official form is provided, and

(2) when using an official form of service, the officiating minister must respect the structure and wording of the text, and not take liberties, except to the limited extent permitted by canon B5(1).

However, the liturgical canons do not forbid, or even restrict, ceremonial actions performed during official services, so long as such actions do not conflict with the structure and text of the service.

There may be an analogy between ceremonies and music. Music is obviously an important part of worship, but it has not been suggested that canons B1 to B5 regulate music.  Music is  regulated by canon B20.  Canon B20 entrusts the control of liturgical music to the officiating minister, though the minister is required to ‘pay due heed’ to the organist or choirmaster, and also to ensure that the music is ‘appropriate … to the solemn act of worship’, and ‘to banish all irreverence’.

It is argued that an officiating minister has a similar control of liturgical ceremonies as of music.  It may be anomalous that music is specifically regulated by the revised canons while ceremonies are not.  However, music has proved much less controversial in the past than ceremony, and is therefore easier to regulate.

The silence of the revised canons concerning ceremonies is consistent with a sensible policy of tolerance and avoiding controversy.  Moreover, the silence does not mean that ceremonies are entirely at the whim of the individual vicar.  There are 3 legal restrictions on ceremonies

(1) as mentioned earlier, a ceremony will be unlawful if used during a form of service which positively forbids it.  A vicar who performed such a forbidden ceremony, and ignored the bishop’s warning to desist, would be guilty of an ecclesiastical offence of disobedience under the Clergy Discipline Measure 2003, s.8.

(2) a ceremony which conflicts with the Church’s doctrine will be unlawful, even if it is not positively forbidden by official forms of service.  The Ecclesiastical Jurisdiction Measure, s.10(1), continues to provide for disciplinary action to be taken in respect of offences against doctrine, though no such action has ever been taken.

(3) all ceremonies are subject to the requirement of reverence.  The revised canons repeatedly insist that public worship must be performed ‘reverently’ (canons B10, B11(1), B13(1), B14(1)).  Reverence may be a matter of cultural value judgement to some extent.  But a vicar who introduced some ceremonial action that was considered so grossly inappropriate (an example will not be attempted) as to contravene the requirement of reverence would also be liable to disciplinary action for disobedience under the Clergy Discipline Measure.

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)).

Cathedral Governance: A Constitutional Monstrosity

Kathleen Edwards, The English Secular Cathedrals in the Middle Ages (Manchester University Press, 2nd edition 1967)

This is a most helpful commentary on the confused subject of cathedral governance.  It explains the cause of the confusion, and also demonstrates how little the subject has changed since the middle ages.

The constitution of a cathedral church ought to be a simple thing.  Everyone knows that a cathedral is so called because it contains the cathedra, the official seat of the bishop.  The bishop’s relationship to the cathedral is analogous to that of an incumbent to a parish church.  The bishop is the incumbent of the diocese.  The cathedral is the bishop’s church, the church from which he officiates as bishop.  It is therefore the parish church, or ‘mother church’, of the whole diocese.  The proper function of any other cathedral clergy is to assist the bishop with his official duties, just as the curate assists the vicar.

But of course the constitution of an English cathedral is not nearly so simple.  Edwards relates that ‘the [mediaeval] bishop was more and more drawn away from his cathedral city, both on affairs of state and through … looking after a large diocese.  During his long absences there began to develop some sort of home government among the cathedral clergy’ (p.98).

Thus the cathedral chapter obtained a degree of autonomy from the bishop.  The absent bishop’s place at the head of the chapter was taken by the dean (cf.p.137).

Edwards quotes a graphic and prescient early warning against this separation of bishop and chapter, dating from 1313: ‘the bishop and the chapter … make one body, of which body the bishop is the head and the chapter are the members.  Therefore to argue that the dean is another head is to argue two heads in one body, which is like a monster, and prejudicial to the bishop’ (quoted, p.97).  Needless to say, this powerful argument was not accepted at the time, or subsequently.

However, the mediaeval separation of bishop and chapter makes the point that the bishop’s position is not precisely analogous to that of a parochial incumbent.  The bishop has a power of governance which incumbents do not share.  He is the principal ordinary of the diocese, and also has some responsibility for secular governance, through membership of the House of Lords (canon C18(2) and (8)).

In the old days, such responsibilities necessitated lengthy absences from the cathedral, but the cathedral still had to function without the bishop.  So perhaps the chapter had to have some autonomy then.  Of course, modern transport and communications should make it possible for the bishop to govern both the diocese and the secular state without prolonged absence from the cathedral.  (And bishops usually live right next door to their cathedrals.)  However, these improvements have not, as yet, led to the constitutional reunion of bishop and chapter.

The cathedra is always situated in the choir area of the cathedral.  It is generally an ornate and imposing structure, as befits the ‘principal seat and dignity in the cathedral’ (Cathedrals Measure 1999, s.6(1)).  It is often regally described as the bishop’s throne, an allusion to the power of governance.  However, Edwards points out that cathedra also means a professorial teaching chair (p.177).  Thus the cathedra symbolises not only the bishop’s governance, but also his pastoral function of teaching and guiding.

Moreover, the bishop did not exercise the power of governance in the choir.  The choir was a place of worship, where the Divine office was celebrated.  Governance was done in the chapter house.  (The consistory court would meet in the chapter house.)

The separation of bishop and chapter did not affect the bishop’s liturgical position in the choir.  The bishop continued to enjoy an undisputed precedence at all services at which he was present, and to exercise his pastoral ministry of preaching, ordaining and confirming.

However, the chapter house, as the seat of governance, became the subject of competing claims by the bishop and the chapter.  These claims were settled by the constitution of the particular cathedral.

In the middle ages, the chapter had two functions:

(1) governing body of the cathedral (as it still is) and

(2) bishop’s council, which he consulted about the governance of the diocese.

In other words, the original function of the chapter was to assist the bishop’s governance of both the cathedral and the diocese.

Cathedral constitutions could vary widely.  At Chartres Cathedral, apparently, ‘the bishop was not allowed to enter the chapter house on any pretext’ (p.106).  York Minster ‘denied to its bishop all statutory right to sit in chapter’.  However, most cathedral constitutions gave their bishop some say in the governance of his cathedral.

The competing claims of bishop and chapter were generally resolved as follows:

(1) the bishop had no right to attend ordinary meetings of the chapter, because he was not a member of the chapter

(2) however, the bishop could attend chapter meetings on a visitation, i.e an inquiry into the governance of the cathedral, if he had a constitutional right of visitation in the first place.  Bishops generally did have the right to inquire into the governance of their cathedrals, but the right might be limited in various ways, e.g to particular times or occasions.

(3) the bishop could also convene and preside over the chapter qua bishop’s council, in order to consult it about the governance of the diocese, rather than the cathedral.

Today, of course, the cathedral chapter has no responsibility for the governance of the diocese.  The bishop’s council is now a committee of the diocesan synod, which is completely different from the chapter (Synodical Government Measure 1969, schedule 3.28).

Thus the constitutional separation of bishop and chapter eventually resulted in the constitutional separation of the cathedral from the rest of the diocese.  Yet this separation is hardly consistent with the cathedral’s role as the ‘mother church’ of the diocese.

Nothing illustrates the confused state of cathedral governance so starkly as the position of archdeacons therein.  The function of archdeacons is to assist the bishop’s governance of the diocese within their respective archdeaconries (canon C22(2) and (4)).  But archdeacons, qua archdeacons, have no responsibility for the cathedral.

Edwards notes that ‘The place of archdeacons in secular cathedrals in the middle ages was peculiar … their chief work was in their archdeaconries outside the cathedral precincts’ (p.243).  She suggests that ‘in most mediaeval cathedral churches archdeacons had come to be regarded as the bishop’s official guests, to be treated with the honour due to guests’ (p.249).

Yet archdeacons can be ex officio members of the chapter, even though the bishop, whose diocesan governance they assist and whose church the cathedral is, cannot.  The Cathedrals Measure 1999 further provides that archdeacons, and suffragan bishops too, must be ex officio members of the college of canons established by the Measure for every cathedral (s.5(2)).  But the diocesan bishop is still excluded from ex officio membership of the college.  Not monstrous, perhaps, but all rather absurd.

The Cathedrals Measure 1999, and the bishop’s status as visitor of the cathedral, are discussed in separate posts, filed below.

Baptism: Sin, Sacrament, Sacrilege and Salvation

‘Baptism, where it may be had, is necessary to salvation’ (Church in Wales Prayer Book 1984, rubric)

Sin

Protestantism started from a deep consciousness of sin.  Of course, human beings commit grave actual sins, but the problem is worse than that.  The whole human race, the human condition per se, is innately sinful.  It suffers from original sin, also called birth sin.  Article 9 sternly teaches that ‘in every person born into this world, it [birth sin] deserveth God’s wrath and damnation’, even though a new-born baby is incapable of actual sin.

The remedy for this seemingly hopeless condition is faith, faith in the redeeming love of God.  Article 11 is reassuring: ‘that we are justified by faith only (sola fide) is a most wholesome doctrine, and very full of comfort …’.

Yet the comfortable doctrine created a difficulty.  If human beings are saved by faith alone, then baptism and the other sacraments are prima facie superfluous.

Article 27 seeks to reconcile baptism with justification sola fide.  It suggests that baptism is to some extent dependent on the faith of the recipient: ‘they that receive baptism rightly are grafted into the Church …’.  Baptism certifies the faith of the believer: ‘the promises of forgiveness of sin, and of our adoption to be the sons of God … are visibly signed and sealed; faith is confirmed and grace increased by virtue of prayer‘.

This may suggest that baptism is for adults only.  It should only be administered when the candidate is of sufficient age and understanding to make a personal act of faith.  However, Article 27 affirms that ‘The baptism of children is … to be retained … as most agreeable with the institution of Christ’.  From its first publication in 1549 until 1662, the Book of Common Prayer made no provision for the baptism of adults, only infants.  (Ronald Knox, a Catholic convert, once scoffed that ‘Quakers and Baptists are the only truly logical Protestants’.)

Whatever their ambivalence about baptism, the 39 Articles are unequivocal in their condemnation of relativism: ‘They … are to be had accursed that presume to say, that every man shall be saved by the law or sect which he professeth … For holy Scripture doth set out … only the Name of Jesus Christ, whereby men must be saved’: Article 18.

Sacrament and Sacrilege

The rubrics of the Book of Common Prayer lay down 2 rules about baptism:

(1) it must not be repeated and

(2) subject to emergencies, it should be administered in church.

Canon law (i.e Roman Catholic law) is clear that baptism cannot be repeated because it imprints an indelible character on the recipient (Code of Canon Law 1983, canon 845(1), also canon 849).  To attempt to repeat a valid baptism is sacrilegious, because it denies the indelible character of the original baptism.

However, conditional baptism is allowed if there is a ‘prudent doubt’ about the validity of an earlier baptism (canon 845(2)).

The rubrics follow Catholic doctrine in providing that a child baptised privately ‘is lawfully and sufficiently baptised, and ought not to be baptised again in the church’.  The priest had to check that the child was indeed baptised: ‘if they that bring the infant to church do make such uncertain answers to the priest’s questions, as that it cannot appear that the child was [validly] baptised’, then the priest must baptise conditionally: ‘If thou art not already baptised, N, I baptise thee etc’.

The public baptism service formerly required the priest to check that the child was not baptised already, before administering the sacrament (rubric).

Baptism may be validly administered by anyone, not just an ordained minister.  As the Court of the Arches pointed out, ‘if lay baptism had been considered as one of the errors of the Romish Church, it would have been corrected [at the Reformation]’ (Kemp v Wickes (1809) 161 English Reports 1320, p.1326).  The Court later affirmed that ‘The law of the Church is beyond all doubt that a child baptised by a layman is validly baptised’ (Mastin v Escott (1841) 163 English Reports 553, p.586).

Home baptism seems to have been widespread until as late as the 19th century.  High infant mortality is one obvious explanation.  In the middle ages, priests were required to warn expectant mothers to ‘have water ready prepared to baptise the child if necessity shall so require’ (Lindwood Provinciale Book 1, Title 11, chapter 2).  However, in the case of Bennett v Bonaker (No.2) (1829) 162 English Reports 1066, the Court of the Arches noted disapprovingly that ‘It has become … a sort of fashion to have … children christened in their houses instead of at church and … too many of the clergy comply with [this] practice …’ (p.1075).

Unofficial baptism is valid in principle, but, as the rubrics indicate, its validity may be doubtful in practice if administered by an unauthorised and uninstructed minister and without reliable witnesses.  It may also be corrupted by superstitious or pagan practices.

Moreover, baptism confers membership of the Church.  The baptised is thereby ‘grafted into the body of Christ’s Church’.  For this reason baptism should be administered publicly, in facie ecclesiae, ‘on Sundays or other Holy Days at or immediately after public worship when the most number of people come together’ (canon B21).  Even after a private baptism, the child ‘shall be brought to the church and there, by the minister, received into the congregation of Christ’s flock’ (canon B22(8)).

Possession of a baptismal font was once regarded as the legal test for determining that a building is a parish church and therefore a place of public, rather than private, worship.  The font is traditionally located by the door, at the opposite end of the building from the altar, to symbolise the sacramental entry into the Church.

Canon F1(2) follows tradition by laying down a general rule that the font ‘shall stand as near to the principal entrance [to the church] as conveniently may be’, though a faculty may permit the location of the font elsewhere in the church.  Canon 81 of 1603 required ‘a font of stone … to be set in the ancient usual places’.

(There is an amusing twist here.  The older ecclesiastical law insisted that the font be made of stone, but also insisted that the altar or ‘communion table’ should not be made of stone.  The modern law allows that the altar may be made of stone, and that the font need not be.)

Ecclesiastical law makes provision for the sanctity of baptism.  Canon F1 provides that the font must be ‘decent’ and have ‘a cover for the keeping clean thereof’.  Moreover, the font must be used exclusively for baptism, ‘and for no other purpose whatsoever’.

The mediaeval Church was not concerned only with cleanliness: ‘The baptising font must be kept close under lock, for fear of witchcrafts‘ (Lindwood Book 3, Title 25, chapter 1).  Water used for emergency baptism ‘[should] for the reverence of baptism either be poured into the fire or  be brought to the church to be poured into the font, and let the vessel be burned or deputed to the church’s use’ (Title 24, chapter 1).

Access to the altar is via the font, but the baptised must still make the journey from the font to the altar.  Canon law holds that baptism is a necessary precondition to valid reception of all other sacraments.  Baptism is the ‘gate’ (ianua) of the sacraments (1983 Code, canon 849).  In the Catholic Church, of course, there are six other sacraments besides baptism, but in the Church of England only one, ‘the Supper of the Lord’ (Article 25).  English law is clear that only the baptised may be admitted to holy communion (cf canon B15A).

However, the legal relationship between baptism and marriage is confused.  The report The Canon Law of the Church of England (1947) proposed a new canon that ‘No minister shall allow matrimony to be celebrated in his church between two persons neither of whom has been baptised: and if … one of [them] has not been baptised … shall refer the matter to the Bishop … [for] his order and direction’ (p.126).  This canon was rejected for fear that it infringed the common law right of unbaptized parishioners to marry in their parish church.

It is argued that this fear was misplaced.  It ignored the font at the entrance to the church.  The common law right originated at a time when marriage was still a sacrament, therefore accessible only by baptism, and when only baptised persons were married in church.  The Prayer Book marriage service clearly assumes that the couple will both be baptised, for it provides that they ‘should receive the holy communion at the time of their marriage, or at the first opportunity after …’.  The Marriage Act 1753 required marriages to be solemnised in the parish church, but excepted Quakers and Jews from this requirement, because they were not baptised.  This implies that church marriage is for baptised persons only.

Moreover, ecclesiastical law (like canon law) formerly denied Christian burial to the unbaptised (cf canon B38(2)).  It is illogical that an unbaptised person should be entitled to a church wedding but denied a church funeral.  (However, the illogicality has been cured.  An unbaptised person may now have a church funeral.)

Salvation

The Prayer Book Catechism seems to affirm the Catholic doctrine that baptism, not just faith, is necessary to salvation.  Baptism makes the recipient ‘an inheritor of the Kingdom of Heaven’.  It brings ‘A death unto sin, and a new birth unto righteousness’.

Private baptism ‘in tyme of necessitie’, i.e if the infant was in danger of death, was retained in the Prayer Book.  This also implies a link between baptism and salvation.  Baptism is considered necessary, even though the dying infant is too young to have committed any actual sin.

The fault-line between justification sola fide and salvation through baptism was exposed in the famous Victorian case of Gorham v Bishop of Exeter (1849-50).  The Rev Mr Gorham apparently doubted that baptism ipso facto imprints an indelible character.  He held that ‘the grace of regeneration [rebirth] does not so necessarily accompany the act of baptism, that regeneration invariably takes place in baptism … [regeneration] may be granted before, in or after baptism … baptism is an effectual sign of grace … but only in such as worthily receive it …’ (Phillimore Ecclesiastical Law, 2nd edition 1895, p.496).

The Bishop refused to institute Mr Gorham to a benefice because of these doubts.  He was supported by the Court of the Arches.  However, the Privy Council controversially overruled them both, and ordered Mr Gorham’s institution.  Its conclusion was that English law does not deny the indelible character of baptism, but does not insist on it either.  There is liberty of belief in the matter.

The Catholic Church does not, of course, hold that faith is irrelevant to baptism.  On the contrary, the recipient of baptism is required to co-operate in the work of salvation.  This is the reason for the promises required at public baptism, to ‘renounce the devil and all his works, … and constantly believe God’s holy Word, and obediently keep His Commandments’.

Canon law therefore makes it a condition of baptism that ‘there be a realistic hope that the infant will be brought up in the Catholic religion: if such a hope is altogether lacking, the baptism is to be deferred (differatur)’ (canon 868(1), avoiding the word ‘refused’).

Modern English law has again followed canon law in emphasising the importance of co-operation with baptism.  In the 20th century, clergy became concerned that baptism was becoming a mere social convention, an occasion to celebrate the baby’s birth and show it off to family and friends, but with no intention of observing the baptismal promises and bringing the child up as a Christian.

Canon B22(3) of the revised Canons of the Church of England therefore requires the minister to instruct parents in their responsibilities.  Canon B23(2) provides that godparents must be ‘persons who will faithfully fulfil their responsibilities both

[1] by their care for the children committed to their charge and

[2] by the example of their own godly living’.

A clergyman is protected from disciplinary action if he refuses or delays baptism from concern that co-operation with the sacrament will not be forthcoming.  The parents may refer the matter to the bishop, who must first consult the clergyman and then ‘give such directions as he thinks fit’ (canon B22(2)).  (This is discussed further in the post ‘Baptism and Godly Living’, which is filed below.)

Modern ecclesiastical law rightly provides for the co-operation of parents and godparents in the child’s baptism, but, like the older law, it assumes that parents will want to have their child baptised in the first place.  The 20th century concern may seem anachronistic now.  The children who were baptised then, whether for social or religious reasons, now decline to have their own children baptised at all.  When congratulating devout elderly churchgoers on the birth of a grandchild, the author of this blog has learned not to make any reference to christening, for fear of the embarrassed silence that often follows.

Parents may decline baptism out of indifference, or outright rejection of religion, but a more insidious reason may be advanced: the children should be free to decide for themselves whether they want to be baptised and go to church, when they are old enough to do so.

Such parents are asserting their right, and maybe their duty, to decline baptism for their child, in order to preserve the child’s right to choose whether or not to be baptised later on.  This sounds plausible because it is in harmony with the prevailing secularist conception of human rights, according to which religious belief and practice are no more than an individual lifestyle choice.

Such a muddle-headed concept of religious freedom is, of course, highly conducive to secularism.  It implies that there is something wrong with infant baptism.  And very few people who are denied baptism as infants are likely to seek it in later life.

If baptism really is necessary to salvation, no loving parent would refuse it and leave the child to make its mind up later.  No more than refuse inoculation against a dangerous disease in the hope that the child will not catch it.  But in a secular, pluralist society, either there is no such thing as salvation, or everybody is saved regardless of faith and baptism.  The Protestant fear of sin and Catholic hope are both lost.

What can ecclesiastical law do if parents do not want to have their children baptised?  In practice, virtually nothing.  We have to admit, of course, that parents cannot and should not be forced to have their children baptised (in the way that they can be forced to send their children to school).

Canon B26(2) exhorts ‘All parents and guardians [to] take care that their children receive [religious] instruction’, but the revised canons do not seem to impose any duty on them to have their children baptised.  Ecclesiastical law formerly required the clergy to ‘often admonish the people that they defer not the baptism of their children …’, but this rubric was removed by the Prayer Book (Further Provisions) Measure 1968, s.3(2).

Though ineffectual in practice, ecclesiastical law may at least inform the confused and secularist-dominated debate about religious freedom:

(1) Baptism, above all, proves that religion is corporate and public, not merely individual and private.  Nobody can baptise himself.  Baptism is administered by the Church and it confers membership of the Church.  It therefore proves that the Church exists.  Though uncertain of its precise effect, English law is clear that baptism is ‘ordained of Christ our Lord in the Gospel’ (Article 25).  If baptism is Divinely ordained, then so is the Church which administers it.  Therefore the Church cannot be reduced to a mere private contract between individuals.

(2) If baptism is ordained of God, if it is God’s Will for everybody, then there cannot be a human right to choose whether or not to be baptised.  Such a right blasphemously subordinates Divine ordination to mere human choice.  It reduces baptism to the level of a political or consumer choice (which party to vote for in the election, which bank to get a loan from).

(3) However, a person does have a right not to be baptised against his will.  The distinction between a right (1) to choose whether or not to be baptised and (2) not to be baptised against one’s will may seem a fine one, even non-existent.  However, it is argued that the distinction is critical, because it brings the human right into alignment with the Divine ordination of baptism.  It is also consistent with the rite of baptism, which assumes the cooperation of the recipient, either personally or vicariously through parents and godparents.

(4) Of course, an infant cannot be baptised against its will.  The Divine ordination of baptism, and the affirmation of Article 27 that infant baptism is ‘most agreeable with the institution of Christ’ make clear baptism is the infant’s right.  It is therefore the duty of parents to give effect to the child’s God-given right to be baptised, not to deny it in favour of a non-existent right to ‘choose’.

The Clerical Declaration of Assent

Chancellor Rupert Bursell QC, article in the Ecclesiastical Law Journal (2016) vol 18(2), May 2016, p.165.

This is an interesting account of the history and content of the Declaration contained in Canon C15(1) that clergy are required to make.  However, there are difficulties with its speculations about the disciplinary consequences of a ‘breach’ of the Declaration by an officeholder.

The learned author suggests that any disciplinary case involving the Declaration is likely to constitute a ‘reserved matter’, i.e an offence against doctrine, ritual and ceremonial (p.185).  Reserved matters are still regulated by the Ecclesiastical Jurisdiction Measure 1963, not the Clergy Discipline Measure 2003.

To date, no prosecution has ever been brought under the 1963 procedure for reserved matters.  There seems to be no reported case either under the 1963 Measure or the 2003 Measure concerning a breach of the Canon C15(1) Declaration.

Although described as ‘The Declaration of Assent‘, the word ‘assent’ does not appear in the text of the Declaration.  The Declaration is in the following terms:

‘I, A.B …

[1] declare my belief in the faith which is revealed in the Holy Scriptures and set forth in the Catholic Creeds and to which the historic formularies of the Church of England bear witness and

[2] in public prayer and the administration of the sacraments, I will use only the forms of service which are authorized or allowed by Canon’.

It will be apparent from this wording that ‘the Declaration’ is actually two declarations, as to (1) religious belief and (2) compliance with the Church’s law of worship.

The two declarations are significantly different in character.  Only Declaration (2) is concerned with conduct.  Declaration (1) concerns state of mind.  Declaration (1) is expressed in the present tense.  It affirms the clergyman’s religious belief as at the time it is made.  It contains no guarantee of what the clergyman may or may not believe in the future.  Declaration (2), by contrast, is an undertaking as to future conduct.

It is difficult to see how Declaration (1) could give rise to disciplinary action, as it refers only to a state of mind.  As Dr Johnson observed, ‘Every man has a physical right to think as he pleases, for it cannot be discovered how he thinks’.  Perhaps disciplinary action would be possible if there was evidence that an officeholder had knowingly made a false declaration (e.g ‘I only made the Declaration to get the job’), though such a case might be hard to prove.

The ‘forms of service’ which are the subject of Declaration (2) are now ‘authorised or approved’ under the authority of the Worship and Doctrine Measure 1974, which was, of course, passed some years after the 1963 Measure.  The reserved jurisdiction over ritual and ceremonial in the 1963 Measure applied to the old 1662 regime of public worship.  The 1662 regime was abolished by the Worship and Doctrine Measure.  It might therefore have been appropriate to abolish the reserved jurisdiction over ritual and ceremonial at the same time, but this was not done.

Canon B2 now provides that ‘Every minister shall use only the forms of service authorised by this Canon, except so far as he may exercise the discretion permitted by Canon B5′.

Thus if an officeholder breaks the rule laid down by Canon B2, or exceeds the discretion permitted by Canon B5, this will clearly constitute disobedience, ‘doing [an] act in contravention of the laws ecclesiastical’, which is misconduct under s.8(1) of the Clergy Discipline Measure.  There will be no need to invoke the 1963 reserved jurisdiction, even if such misconduct is cognisable under this jurisdiction.

The learned author asserts that ‘Once made, the Declaration is binding unless and until a cleric formally renounces his or her orders’ i.e by exercising a deed of relinquishment (p.183).  He makes this assertion not just once but twice (at p.183 and p.187).  (It must be important to him, for some reason.)

Canon C15(1)(6) is cited as authority.  This provides that

‘Where any bishop, priest or deacon ceases to hold office in the Church of England or otherwise ceases to serve in any place, the Declaration made under this Canon shall continue to have effect insofar as he continues to minister in the Church’.

On this wording, Canon C15(1)(6) does not provide that the Declaration continues until a clergyman formally renounces his orders.  It provides only that the Declaration continues as long as the clergyman continues to officiate.  It makes no reference to renunciation of orders.

Canon C15(1)(6) means in effect that a retired bishop or vicar (or a vicar on a career break) who helps out by taking services, as retired clergy do, will not have to take the Declaration again after retirement, but will be expected to honour the Declaration made while still in ‘active’ ministry.  It simply does not apply to clergy who do not officiate at all.  And clergy who do not officiate in the Church will have no opportunity to act in breach of the Declaration, regardless of whether they have executed a deed of relinquishment.

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.