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Ecclesiastical law

Tag: Sacrament Act 1547

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.

Exclusion from Holy Communion

The only remnant of ecclesiastical jurisdiction over the laity to survive the reforms of the 19th century is the power to exclude, or ‘repel’, a person from holy communion.

This power is now regulated by Canon B16, which provides that

‘if a minister be persuaded that anyone of his cure who presents himself to be a partaker of the Holy Communion ought not to be admitted thereunto by reason of malicious and open contention with his neighbours, or other grave and open sin without repentance, he shall give an account of the same to the bishop … and therein obey his order and direction …’.

Canon B16 makes clear that the bishop alone may order that a person be excluded from the Sacrament.  The minister’s function is merely to inform the bishop and obey him.

It is true that Canon B16 confers an emergency power on the minister ‘in case of grave and immediate scandal to the congregation’.  However, in these (rather unlikely) circumstances, the minister is required to report all to the bishop ‘within 7 days after at the furthest and therein obey his order and direction’.

Natural justice must be observed.  Before making any order the bishop must ‘afford to [the sinner] an opportunity for interview’, to hear his side of the story.  If the bishop orders exclusion from the Sacrament the sinner must first be advised of this by the minister and warned ‘that in any wise he presume not to come to the Lord’s Table’.

Canon B16 does not oblige the bishop to order exclusion, now matter how grave the sin.  The bishop may confine himself to exhorting or rebuking the sinner.  The wording of Canon B16 also suggests that any order excluding a person from the Sacrament must be confined to one church, or at most the area of one benefice.  It starts by saying that ‘If a minister be persuaded that anyone of his cure etc’.  A person excluded from the Sacrament within that cure may still be admitted to it elsewhere.

The grounds on which a person may be excluded from the Sacrament were examined by Sir Lewis Dibdin, Dean of the Arches, in Banister v Thompson (1908) Probate 362. 

This case was decided before Canon B16 was promulged.  The power to exclude was then conferred by the rubric of the Book of Common Prayer, which had the statutory authority of the Act of Uniformity 1662, and by the canons of 1603.

The rubric was differently worded from Canon B16.  It provided that if any would-be communicant was ‘an open and notorious evil liver, so that the congregation by him is offended … the Curate having knowledge thereof shall warn him and advertise him … not to presume to come to the Lord’s Table until he have openly … repented’.  It did not expressly require the minister to refer the matter to the bishop.

Mr Banister was a parishioner of Canon Thompson.  He was a widower.  He married his deceased wife’s sister in Canada, because such a marriage was illegal in England.  Shortly afterwards, English law was changed to permit such marriages and retrospectively to legalise those already contracted.

This did not impress Canon Thompson, who refused to admit Mr Banister and his new wife to holy communion. Mr Banister complained to the ecclesiastical court.  Canon Thompson’s defence was that he had a lawful cause of refusal, because Mr Banister’s marriage conflicted with the Church’s teaching on marriage.

The case did indeed expose a tension between the Church’s teaching and the secular law.  Canon Thompson was correct that marriage with a deceased wife’s sister is contrary to the Church’s teaching.  The secular law acknowledged this by permitting a clergyman to refuse to solemnise such a marriage, and by making clear that it would not protect a clergyman who married his own deceased wife’s sister from ecclesiastical discipline.

The Court of the Arches admitted the difficulty: ‘the recent Act seems to recognise a distinction between the civil and ecclesiastical aspects of marriage, and to alter the law as to the one without purporting to affect the law as to the other … This … creates some difficulty for those who are concerned with its administration’ (p.700).

Nevertheless the Court rejected Mr Thompson’s defence.  It ruled that a priest has no inherent, ex officio power to exclude sinners from holy communion ‘in the absence of a judicial sentence of excommunication’ (p.383).  Canon B16 now makes this clear.

The priest’s function is limited to exhortation.  He ‘has authority to reprove, rebuke, exhort … He is to rebuke sin and to give warning of … ‘unworthy receiving’ of holy communion’ (p.387). 

The normal rule is therefore that ‘the responsibility of separating a man from communion is thus left … to the voluntary action of the man himself, whose conscience is to be informed … by the exhortations of the clergy’ (p.383).

However, the Court acknowledged that there was a power in the Church to refuse the Sacrament to an ‘open and notorious evil liver’.  It specified the conditions on which this power might be exercised:

(1) ‘By an evil liver is intended a person whose course of life, as distinguished from some particular action, is seen to conflict with the moral code of Christendom’ (p.385).  This suggests that one sin alone, however grave, does not warrant exclusion.  An objectionable course of conduct or lifestyle is required.

(2) ‘Open and notorious’ means ‘that the facts … of the evil living are so conspicuous and well known as to be indubitable’ (p.386).  Mere suspicion is not enough.  The wrongdoing must either be admitted by the sinner or be proved by incontrovertible evidence.

(3) ‘The evil living … must cause offence to the public conscience’ (p.387).  The sinful conduct must be offensive to the sinner’s fellow communicants.  Exclusion from holy communion will therefore be heavily influenced by cultural value judgement.  The same sin may justify exclusion in one parish, if it shocks the congregation there, but not in a neighbouring parish, if the congregation is not shocked.

The purpose of exclusion is the public order of the Church, not the reformation of the sinner: ‘the clergyman in repelling any one is not … exercising godly discipline on the person repelled, but he is acting as a public officer for the protection of the whole community’ (p.385). 

Applying this law to the facts of Canon Thompson’s case, the Court held that it was ‘impossible to say that [Mr and Mrs Banister], lawfully married … can … be so described [as evil livers] merely because they are living together as man and wife’ (p.390).

It might have added that Canon Thompson had not, apparently, produced any evidence that Mr Banister’s marriage had caused offence to the local congregation, as required by condition (3).

The Court of the Arches’ decision was supported by the secular courts in the subsequent Dibdin litigation, which is discussed elsewhere.  The case also clearly influenced the drafting of Canon B16.

However, Canon B16 does not have statutory authority.  Following the Worship and Doctrine Measure 1974, the rubric of the Book of Common Prayer no longer has statutory authority either.  This raises the question whether the Church’s right to repel from holy communion has survived.

Mr Banister founded his right to receive holy communion on an ancient statute, the Sacrament Act 1547.  This Act provides that the minister ‘shall not without lawful cause deny the [Sacrament] to any person that would devoutly and humbly desire it’.

However, the reference in the 1547 Act to a ‘lawful cause’ of refusal clearly implies that persons may lawfully be denied the Sacrament.  There is overwhelming historical evidence that the Church has, from the earliest times, claimed and exercised the right exclude grave sinners from holy communion.  The Church courts continued to excommunicate offenders, with the support of the secular courts, until the 19th century.  Article 33 also affirms the Church’s right.

Refusal of the Sacrament was briefly discussed in Blunt v Park Lane Hotel (1942) 2 All England Reports 187.  A litigant in an action for slander sought unsuccessfully to avoid embarrassing questions about her sex life by pleading privilege against self-incrimination. 

Lord Goddard (then Lord Justice Goddard) acknowledged that a known adulteress might be liable to be repelled from holy communion, but held that this did not constitute a criminal penalty, and so could not attract the privilege.

The Sacrament Act provides that persons must ‘devoutly and humbly’ desire the Sacrament to qualify for admission.  This suggests that a priest is within his rights to refuse the Sacrament to someone who is drunk or disorderly (a fairly common occurrence at Christmas midnight masses) without first requiring the bishop’s decision.

Swine Flu and the Sacrament Act 1547

Section 8 of this ancient statute (1 Edw 6, c.1, therefore the very first Act of Parliament passed during the reign of King Edward VI) provides that holy communion shall ‘be hereafter delivered and ministered unto the people … under both the kinds … of bread and wine, except necessity otherwise require’.  The word ‘necessity’ is rendered ‘necessitie’ in the original spelling.

This reference to ‘necessitie’ was suggested as the legal justification for refusing to administer the wine during a ‘swine flu’ pandemic in 2009.  However, it is argued that this is a superficial and flawed interpretation of the 1547 Act.

It is true that the ‘necessitie’ provision remains in force, but it is questionable whether it applies to any form of service now in use.  The first Book of Common Prayer (‘BCP’) was authorised by the Act of Uniformity 1548 (2 & 3 Edw 6, c.1).  The 1547 Act was, of course, enacted the previous year or so.  It could not therefore apply to the BCP, which was not then in use.  It could only apply to the mediaeval liturgies (Sarum, York, Bangor etc).  However, these mediaeval liturgies were all abolished by the 1548 Act.  Thus the ‘necessitie’ provision was not repealed, but it could have no application after 1548, since the liturgies to which it applied were no longer in use.

The 1547 and the 1548 Acts were both repealed under the Catholic Queen Mary I.  The 1547 Act, including s.8, was then revived under Elizabeth I, by the Act of Supremacy 1558 (1 Eliz 1, c.1, the first Elizabethan Act of Parliament).  The BCP was then amended and authorised by the later Act of Uniformity 1558 (1 Eliz 1, c.2, the second Elizabethan Act of Parliament).

Thus the chronology repeated itself.  When revived, the 1547 Act applied to the liturgy favoured by Queen Mary, which was then in use.  That liturgy was abolished by the Elizabethan Act of Uniformity and replaced by the amended BCP, so the ‘necessitie’ provision could, again, have no further application.

It is also unlikely that the ‘necessitie’ provision was intended to apply to a public health scare.  It probably referred only to cases of material want, that is, where there was no wine to be had, or not enough wine for all communicants, or where the communicant was in danger of death and there was no time to obtain wine.

Canon 71 of 1603 provides that no clergyman should officiate in a private house ‘except it be in times of necessity, when any being … so impotent as he cannot go to the Church, or very dangerously sick’.  Canon 71 was, of course, written more than half a century after the 1547 Act.  Also, the ‘necessity’ to which it refers is that of administering holy communion outside the church building.  It does not equate necessity with public health.

People in the 16th and 17th centuries were far more familiar with deadly infections and pandemics than we are, and the BCP rubrics refer to ‘the Plague, Sweat, or such other like contagious times of sickness or disease’.  It is therefore significant that the rubrics make no provision of refusing the wine on such occasions.  Nor did the abortive revised Prayer Book in the 1920s, even though this was compiled just after the influenza pandemic that followed the first world war (and apparently killed more people).

Even if the ‘necessitie’ provision does apply to the BCP and authorised modern liturgies and to public health scares, it certainly does not empower Archbishops and bishops to order communion under one kind only.  S.8 is addressed directly to all the clergy as ministers of the sacrament, not to bishops or Church courts.  If there is a necessity justifying refusal of the communion cup, this is for the officiating clergyman to decide.

Moreover, as a matter of law, necessity is a defence, not a basis of authority.  It is a shield, not a sword.  The courts may accept necessity as a defence to an otherwise illegal act.  However, it cannot order the commission of an illegal act on ground of necessity.  Thus the Church authorities cannot order a clergyman to refuse to administer the wine.  They can, at most, accept the clergyman’s defence of necessity if a disciplinary complaint is made against him. 

It is argued that a clergyman could not rely on the 1547 Act as a defence.  The relevant, post-1548 law is contained in Article 30, and in the regime of public worship established by the Worship and Doctrine Measure 1974.  Article 30 provides that ‘both the parts of the Lord’s sacrament, by Christ’s ordinance and commandment, ought to be ministered to all Christian men alike’.  This wording suggests that communion under both kinds is a matter of divine law, not merely of liturgical discipline, in which case no human authority may dispense from it.  All authorised forms of service are clear that communion should be administered under both kinds.

Canon B5(1) permits individual clergy to ‘make and use variations which are not of substantial importance’ in forms of service, but refusal of the communion cup cannot be considered unimportant, in light of Article 30.  Nor does canon B5 empower bishops to order their clergy to make variations in services.  The wording of canon B5 is clear that minor variations are at the ‘discretion’ of the individual clergyman.

Refusal to administer the wine at holy communion, and any direction by bishops to their clergy not to administer the wine, therefore amounts to misconduct under s.8 of the Clergy Discipline Measure 2003.  Refusal is both a failure to do an act required by ecclesiastical law and neglect of the performance of the duties of office, since administration of the communion cup is a duty of office.  Any purported direction by the bishops to withhold the communion cup is also misconduct, being an act in contravention of ecclesiastical law.

The concern for public health may be understandable.  However, it cannot override the clergy’s duty to administer, and the communicant’s right to receive, communion under both the kinds.  Nor should the 1547 Act be used as a ‘figleaf’ to cover an arbitrary, illegal suspension of this fundamental duty and right.  If the communion cup is really a threat to public health, the proper course is to amend the law.