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Published online by Cambridge University Press: 31 July 2008
I confess that I am not a natural early riser but it is still a great joy for me to celebrate at my parish's 8 o'clock Holy Communion service, especially when the rite is the Holy Communion service from the Book of Common Prayer. I am not saying that I do not enjoy, and do not see the worth of, the rites in the Alternative Service Book, but there is something very special about the rhythms and cadences of the old service and I personally want to see the continuation of all those services contained in the Book of Common Prayer. I therefore want to pose four questions:
(1) How has the Church of England (Worship and Doctrine) Measure 1974 attempted to ensure the continuing availability of the forms of service contained in the Book of Common Prayer?
(2) What are the ‘occasions for which no provision has been made’ embraced by the provisions of Canon B5, para 2?
(3) What, if any, is the legal status of a form of service once, but no longer, authorised?
(4) To what extent does the ecclesiastical law relating to the liturgy bind lay ministers?
1 Church of England (Worship and Doctrine) Measure 1974 (No. 3). s 1(1).
2 In Concerning the Service of the Church.
3 See Briden, and Hanson, . Moore's Introduction to English Canon Law (3rd edn) (Mowbray, 1992). p 57.Google Scholar
4 Stephen, . The Book of Common Prayer (Ecclesiastical Historical Society. 1849). vol I. p 123.Google Scholar
5 Hutchins v. Denziloe and Loveland (1792) 1 Hag Con 170 at 175 180: Rend v. Bishop of Lincoln [1892] AC 644. at 659–661. PC.
6 Oxford. 1683.
7 The rubric after the Creed in the Holy Communion according to the Book of Common Prayer slates: ‘Then shall follow the Sermon, or one of the Homilies already set forth, or hereafter to be set forth, by authority.’ The Act of Uniformity 1662. s 25. also provided for limited amendments to collects and prayers concerning royalty ‘according to the direction of lawful authority’. There is no suggestion that any such ‘lawful authority’ might delegate its discretion. even within narrow limits, to ecclesiastical ministers.
8 Ash Wednesday: Joel 2: Monday before Easter: Isaiah 63: Tuesday before Easter: Isaiah 50: XXV after Trinity: Jeremiah 23: Presentation of Christ in the Temple: Malachi 3: Annunciation of the BVM: Isaiah 7: St John the Baptist: Isaiah 40.
9 Re Todd (1844) 3 Notes of Cases. Supp li.
10 Elphinstone v. Purchas (1870) 3 A & E 66 at 111.
11 Briden, and Hanson, . Moore's Introduction to English Canon Law (3rd edn). p 50.Google Scholar
12 See the Alternative Service Book (Clowes. SPCK. Cambridge University Press. 1980). pp. 130–149.
13 Church of England (Worship and Doctrine) Measure 1974. s 1(1).
14 Ibid, s 1(l)(b).
15 Ibid, s 5(2).
16 (1868) LR 2 A & E 116 at 135. 136. Compare Re Robinson. Wright v. Tugwell [1897] 1 Ch 85. at 96. CA. per A L Smith LJ: ‘What the exact meaning of the word “rite” is has not been decided. …’
17 The Church of England (Worship and Doctrine) Measure 1974. s 1(2). reads: ‘Any Canon making any such provision as is mentioned in subsection (1) of this section, and any regulations made under any such Canon, shall have effect notwithstanding anything inconsistent therewith contained in any of the rubrics in the Book of Common Prayer’. However, this does not necessarily mean that the present rubrics may be altered: it may only mean that the present rubrics do not themselves limit the scope of any alternative rubric.
18 The Times. 9 March 1994. For a fuller transcript see Hill, . Ecclesiastical Law. (Butterworths, 1995). p 77et seqGoogle Scholar, especially at pp 80. 81. Here I would only add a comment that this argument, if valid, still does not affect the legal efficacy of the legislation as to women priests.
19 Kemp v. Wickes (1809) 3 Phillim 264 at 269: Newbery v. Goodwin (1811)1 Phillim 282 at 282f: Martin v. Mackonochie (1868) LR 2 PC 365 at 382f: Combe v. De la Bere (1881) LR 6 PD 157 at 173.
20 Re St Thomas. Pennywell []995] Fam 50 at 65 A-E: Re St John the Evangelist, Chopwell [ 1995] Fam 254 at 260 B–C.
21 Church of England (Worship and Doctrine) Measure 1974. s 1 (5)(b).
22 Canon B5. para 4. Quaere whether this prevents other courts from considering the question?
23 Some guidance is given in Re St Thomas. Pennywell [1995] Fam 50 at 67 F–H and Re St John the Evangelist. Chopwell [ 1995] Fam 254. passim.
24 Cf Re St Peter and St Paul. Leekhampton [1968] P 495. where Chancellor Garth Moore stated that a rubric in The Alternative Services (second series) then had ‘as much … force of law as the Rubric in the 1662 Book of Common Prayer’.Google Scholar
25 Legal Opinions concerning the Church of England (Church House Publishing. 1994). p 235.Google Scholar
26 Church House Publishing. Cambridge University Press. SPCK. 1986.
27 See the Note by the Archbishop of Canterbury immediately before the Introduction.
28 This is borne out by the fact that the Archbishop's Note also makes it clear that diocesan bishops may authorise its use under Canon B4.
29 In a letter to the Church Times dated 17 November 1995. the Revd J M Kilpatrick argues: ‘The use of the Roman Missal appears to be outside the spirit of the promise to adopt only forms of service authorised or allowed by canon. However, it is arguably within the letter of it: Canon B 5 allows variations on the authorised services not contrary to “the doctrine of the Church of England in any essential matter”.
The notes and rubrics of the ASB Rite A accommodate most of the Roman Rite, with the exception of the eucharistic prayer (EP). EP11 of the Missal is to be found in its entirety (save mention of the Pope) in the South African Rite. The Church of England is in full communion with these provinces. The Roman Canon itself (EPI) is inherited from the undivided Church, other than whose doctrine, according to Archbishop Fisher, the Church of England claims none as its own….’
This argument is based on Canon B5. para 3. but. even without knowing what precise ‘accommodation’ within the notes and rubrics is envisaged, it seems to ignore the provisions of Canon B5. para 1. on which it also purports to rely. The wholesale adoption of an unauthorised eucharistic prayer would almost certainly be of ‘substantial importance’, especially if it were not according to particular circumstances’. Moreover, the form of service must be looked at in its entirety, not piecemeal. In addition, an amalgam of rites is unacceptable, whether of authorised (see Legal Opinions concerning the Church of England (Church House Publishing, 1994). p 234) or unauthorised rites.Google Scholar
30 During the London conference it was suggested by Bishop Colin Buchanan that the words referred to an event, such as a Mother's Union service, for which no type of service has already been authorised. This may well point a further ambiguity but seems, at the least, to run counter to the commendation of the House of Bishops in Lent. Holy Week. Easter. If this suggestion were correct, the special Good Friday liturgy there set out could never be authorised by the minister having the cure of souls under Canon B5. para 2: this is because it could not be an ‘event’ for which no type of service has already been authorised.
31 Church House Publishing. 1995.
32 Patterns for Worship, p 239. It should, however, be noted that the apparent advice is given by means of a quotation from a fictitious letter from a bishop's legal advisor rather than as specific guidance.
33 See p x.
34 I am indebted to Miss Ingrid Slaughter for this reference.
35 Legal Opinions concerning the Church of England (Church House Publishing, 1994). p 235.Google Scholar
36 See Halsbury's Laws of England (4th edn), Vol 1(1), para 30.
37 It might, however, found an argument for staying any proceedings based on abuse of process: see Archbold, , Criminal Pleading, Evidence and Practice (Sweet & Maxwell, 1995), vol I, paras 4–44 et seq.Google Scholar
38 (1995) 3 Ecc LJ 441–443.
39 (1994) 3 Ecc LJ 354. The Working Party has now reported back to the General Synod: see GS 1164–1166. See, too, (1996) 4 Ecc LJ 533.
40 Indeed, a lay person ministering at an emergency baptism after 1662 would legally have been bound not only to use the Trinitarian formula as set out in the Book of Common Prayer but, arguably, also to say the prayer beginning ‘We yield thee hearty thanks …’: see the Ministration of Private Baptism of Children in Houses. However, the use of the Trinitarian formula was also required by the pre-Reformation canon law: see Lyndwood, , Provinciale Angliae (Oxford, 1679). p 245.Google Scholar
41 (1995)3 Ecc LJ 442,443.
42 See Forbes v. Eden (1867) LR 1 Sc & Div 568 at 576, 577, HL, per Lord Chelmsford; cf the Synodical Government Measure 1969, Sch 2, art 6(a)(ii). See, too. Brundage, , Medieval Canon Law (Longman, 1995), p 187Google Scholar; ‘Members of those Christian communions that maintain systems of canon law—Roman Catholics, Anglicans, and Eastern Orthodox—implicitly agree as a condition of membership in their churches that they will submit themselves and their disputes to canonical judges for adjudication and will comply with their decisions’.
43 See the various Acts of Uniformity and Lyndwood, , Provinciale Angliae (Oxford, 1679). p 226Google Scholar. as well as the Canons passim.
44 When so doing the lay person was under a duty to use a specific form of words which the clergy were under a duty to teach them: see Bursell, , Liturgy, Order and the Law (Oxford University Press, 1996). p 141Google Scholar. especially footnote 87. There is no reason to doubt that, if a different form of words were used, the lay person could at that time have been proceeded against in the ecclesiastical courts.
45 See Middleton v. Crofts (1736) 2 Atk 650.
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