The Legal Position of the Clergy Part 6

CHAPTER V

DIVINE SERVICE

1. Every deacon and priest before his ordination, and, as mentioned above, every inc.u.mbent, before he is admitted to his benefice, and every stipendiary curate, on entering upon his curacy, declares that in public prayer and administration of the sacraments he will use the form prescribed in the Book of Common Prayer and none other except so far as ordered by lawful authority.[162] This uniform use is enjoined by the Acts of Uniformity and the Prayer Book itself, which has legal force as part of the Act of 1662, and by the 14th Canon, except so far as modifications are permitted under the Act of Uniformity Amendment Act of 1872, which, like the Act of 1662, was pa.s.sed at the instance of Convocation.[163] No clergyman, therefore, may alter, add to, or diminish the form of wors.h.i.+p therein prescribed, including the lessons.[164] The expression "lawful authority" occurs in the Act of 1662, which directs that in those portions of the Prayer Book which relate to the King, Queen, or Royal progeny the names shall be altered from time to time as occasion requires according to the direction of lawful authority. This is explained by Bishop Gibson to mean, according to practice, the authority of the Sovereign in Council.[165] The archbishops and bishops have no authority, combined or singly, to order modifications of or additions to the forms of Divine service, except to the extent permitted by the Act of 1872. The Preface to the Prayer Book "Concerning the Service of the Church" expressly contemplates that in lieu of diversity of use in different dioceses and parts of the realm, all shall henceforth have but one use. The only function of the prelates which it recognises in the matter is the power of the bishop to set at rest any doubts which may arise as to the construction of the Prayer Book and the proper practice thereunder, with liberty to him, if he is himself in doubt, to refer to the archbishop. But the Act of 1872 permits (_a_) the use, upon a special occasion approved by the ordinary, of a special form of service approved by him, and containing nothing except anthems or hymns, which does not form part of the Holy Scriptures or Book of Common Prayer, and also (_b_) the use, on any Sunday or holy day, as supplementary to the services prescribed by the Prayer Book, of an additional form of service, approved by the ordinary as to its form and mode of use, and containing no portion of the Communion Service and nothing except anthems or hymns which does not form part of the Holy Scriptures or Book of Common Prayer. The same Act authorises the use of a shortened order for Morning or Evening Prayer on any day except Sunday, Christmas Day, Ash Wednesday, Good Friday, and Ascension Day; and the use of the Morning Prayer, the Litany, and the Communion Service, in varying order as separate services,[166] and the saying of the Litany after the third collect in Evening Prayer, without prejudice to any legal powers vested in the ordinary, and either with or without a sermon, lecture, or homily; and also the preaching of a sermon without being preceded by a service appointed by the Prayer Book, provided that it be preceded by a service authorised by the Act, or by a collect from the Prayer Book with or without the Lord's Prayer.

2. The Prayer Book contains an "Order for Morning and Evening Prayer daily to be said and used throughout the year"; and under the prefatory heading "Concerning the Service of the Church," it is directed that all priests and deacons are to say daily the Morning and Evening Prayer either privately or openly, not being let by sickness or some other urgent cause. And the curate who ministers in a parish church, being at home and not being otherwise reasonably hindered, is to say the same in the church, after summoning the people by a bell to come and hear G.o.d's word and pray with him. A bishop, however, has no power to enforce daily services;[167] and daily service has been held not to be requisite under a trust to perform the service "in strict and literal accordance with the order of the Book of Common Prayer."[168] But the Act of Uniformity of 1662, s. 1, expressly enacts that the morning and evening prayers contained in that Book shall, on every Lord's Day, and on all other days and occasions, and at the times therein appointed, be openly read by every minister or curate in every church, chapel, or other place of public wors.h.i.+p.[169] And the 14th and 15th Canons direct that the Common Prayer shall be said or sung distinctly and reverently upon such days as are appointed to be kept holy by the Prayer Book and their eves, and that the Litany shall be said or sung when and as prescribed in the Prayer Book; and in particular on Wednesdays and Fridays weekly, though they be not holy days, the minister at the accustomed hours of service is to resort to the church and say the Litany after warning the people by tolling a bell. A later enactment empowers the bishop, at his discretion, to order two full services (each, if he so directs, to include a sermon or lecture) on every Sunday throughout the year or any part of the year in the church or chapel of any benefice, whatever its annual value or population, and also in certain cases where a benefice is composed of more than one parish or chapelry, in the church or chapel of each of them.[170] And where he considers that the population requires it, he may direct the celebration on Sundays and the great festivals of a third service, being either the Morning or Evening Service with a third sermon, and for the performance of this third service may insist on a curate being nominated, whose salary is to be provided by the pews being specially let for the service or by subscription.[171] It is rarely necessary in the present day to put in force these powers, since in most parishes the number of services considerably exceeds the legal _minimum_.

3. Under the rubrics following the Nicene Creed and at the beginning of the Marriage Service, as modified by the Parish Notices Act, 1837,[172]

the minister is alone authorised to give out notices during Divine service; and he may not publish either during or after Divine service notices of proceedings in ecclesiastical courts, or of vestry meetings, or of any other matter except banns of matrimony, announcements of the Communion, and of holy days and fasting days during the ensuing week, and of anything else prescribed by the Prayer Book or enjoined by the King or the ordinary. Other notices must be put up at or near the church door. Banns are to be published at the time of Morning Service (or of Evening Service if there is no Morning Service) immediately after the Second Lesson. Other lawful notices are to be given at the close of the Nicene Creed.

4. The only rubrical provision for the collection of money during Divine service is at the time when the offertory sentences are read, whether a Communion follows or not. The money is then to be received by the deacons, churchwardens, or other fit person,[173] and is to be disposed of to such pious and charitable uses as the minister and churchwardens think fit; wherein if they disagree, it is to be disposed of as the ordinary shall appoint. Money collected at other times during Divine service ought to be brought up to the minister to be placed on the Holy Table, like the offertory money; but, unlike this, it is under the sole control and disposal of the inc.u.mbent; unless it is collected for church expenses or repairs for which the churchwardens are responsible, in which case it should be handed over to them.[174] And if the purpose for which the collection is made is announced beforehand, there is, of course, a legal as well as moral obligation to apply the money collected to that purpose. Offertory alms collected in a chapel are at the disposal of the inc.u.mbent and wardens of the parish church.[175]

5. Questions arose during the last century as to (_A_) the legality of certain ornaments of the Church, (_B_) the dress of the clergy, and (_C_) ceremonies in connection with Divine service, and especially with the Holy Communion; having regard, among other considerations, to the Ornaments Rubric in the Prayer Book. According to the legal decisions on these questions:[176] (_A_) The Holy Table must be of wood and, according to Canon 82, should be covered during Divine service with a carpet of silk or other decent stuff, and with a fair linen cloth at the time of the ministration.[177] A crucifix, except as a mere architectural decoration or as part of an historical representation of the Crucifixion, is illegal; but a cross is legal, provided it be not upon or in actual or apparent contact or connection with the Holy Table.[178] Candlesticks and vases of flowers are legal even in such contact or connection,[179] and so are pictures or sculptures of an historical or allegorical character, whether in a reredos or elsewhere in the church, except those known as the Stations of the Cross, which have been held liable to superst.i.tious abuse.[180] The legality of isolated figures, whether painted or sculptured, depends on whether from their character and position there is no likelihood of their being superst.i.tiously reverenced.[181] A credence table is legal and proper.[182] A second Holy Table is only legal if placed in a part of the church closed in, by lattice work or otherwise, as a separate place of wors.h.i.+p for services attended by few wors.h.i.+ppers.[183] Chancel gates are permitted, if required for the protection of the chancel when the church is accessible for private prayer; but they must be always kept open during Divine service.[184] The erection of a baldacchino or canopy over the Holy Table is not permissible.[185] But the introduction of legal ornaments and additions into a church will not ordinarily be sanctioned without the approval of the paris.h.i.+oners, expressed by a resolution of the vestry.[186] (_B_) The legal attire of the ministering clergy at the Holy Communion, as well as in other ministrations, has been decided to be that laid down by the Advertis.e.m.e.nts of 1566, which are followed in Canons 24, 25, and 58, and prescribe the wearing of a surplice with the proper hood of the university degree (if any); except that in cathedral and collegiate churches the celebrant and gospeller and epistler shall wear copes. The rubric of the First Prayer Book of Edward VI., had directed that the celebrant should wear a white albe plain with a vestment (_i.e._ a chasuble) or cope, and any a.s.sistant priests or deacons should wear albes with tunicles.[187] Stoles, as distinguished from the scarves of chaplains, have no legal authority.[188] A biretta (the foreign form of a college cap) must not be worn during the Communion Service.[189] In preaching (except, possibly, during the Communion Office) the surplice or the black gown are equally legal.[190] (_C_) The ceremonial use of incense and processions with lighted candles are illegal,[191] but a celebration of Holy Communion with two lighted candles on or above the table is permissible.[192] The administration of the mixed chalice is legal, but the wine and water must not be ceremonially mixed during the service.[192] Wafers, not consisting of bread "such as is usual to be eaten," have been held illegal.[193] The singing of the Agnus Dei or of any other hymns during the administration of the elements is permissible.[194] A minister may stand either on the north or the west side of the table during the service; but not so as to hide the manual acts from the people.[192] He must not kneel or bow before the elements during the Prayer of Consecration, or elevate them above his head during administration; nor may he use the sign of the cross during the absolution or benediction.[195] Ablutions of the paten and chalice after the benediction, being no part of the service, are not illegal.[196] Reservation of any parts of the consecrated elements at the close of the Communion Service is illegal.[197]

6. No minister is to refuse or delay to christen according to the form of the Book of Common Prayer any child brought to him to the church for that purpose on a Sunday or holy day, after notice given to him overnight or in the morning before the beginning of Morning Prayer. The ceremony should take place immediately after the second lesson at either Morning or Evening Prayer. The congregation can then testify the receiving of the newly baptized into the number of Christ's Church, and all present are reminded of their own profession made to G.o.d in their baptism. But if necessity requires, children may be baptized on any other day.[198] The law is the same as regards children of Church people and of Dissenters, and as regards legitimate and illegitimate children.

If a minister is duly informed of the weakness and danger of death of an unbaptized infant in the parish, and is desired to go and baptize him, he must not refuse or so delay that the infant dies through his fault unbaptized.[199] But in every other case a male child must have two G.o.dfathers and one G.o.dmother, and a female child one G.o.dfather and two G.o.dmothers; and a minister will, of course, not admit as a sponsor a person notoriously leading an immoral life or otherwise manifestly unfit for the office. G.o.dparents must have received the Holy Communion, and a father cannot be G.o.dfather for his own child.[200] In 1865 the Canterbury Convocation, with the Royal licence, framed a new canon repealing this prohibition; but the canon was never ratified by the Crown, nor was any similar canon pa.s.sed by the York Convocation. The Form for the ministration of Private Baptism in houses contains a service for the public reception in church, as one of the flock of true Christian people, of a child who, in case of emergency, has been baptized at home, and also a formula of conditional baptism to be subst.i.tuted for the words of actual baptism in cases where there is a doubt whether the essential parts of the Sacrament were observed in the private performance of the ceremony. The rubrics direct immersion in the case of the public baptism of infants, if the G.o.dparents certify that the child can endure it, and affusion, if they certify that the child is weak. Naturally, affusion alone is directed in the case of private baptism. In the case of the baptism of adults, immersion or affusion are directed as alternatives, the discretion being left with the minister and not with the G.o.dparents. The rubric directs that, before adult persons are to receive baptism, not less than one week's previous notice shall be given to the bishop, or a person appointed by him, by the parents or some other discreet persons, in order that due care may be taken for their examination as to their knowledge of the principles of the Christian religion, and that they may be exhorted to prepare with prayers and fasting for the reception of that holy Sacrament. The baptismal services throughout contemplate the performance of the ceremony by a priest; but in the Form of Making of Deacons a deacon is expressly authorised to baptize infants in the absence of the priest.

Lay baptism is valid in case of emergency; but, of course, a layman is not at liberty to use the baptismal service.

7. The Holy Communion is to be administered in every parish church and chapel so often and at such times as that every paris.h.i.+oner may communicate at least twice in the year (whereof the feast of Easter shall be one).[201] Warning is to be given to the paris.h.i.+oners "publicly in church at Morning Prayer" on the Sunday before every time of administering the Holy Communion,[202] and the present rubric requires that so many as intend to be partakers of the Sacrament shall signify their names to the curate, meaning the inc.u.mbent, at least some time the day before. In the First Prayer Book of Edward VI. this rubric ran: "So many as intend to be partakers of the Holy Communion shall signify their names to the curate overnight or else in the morning afore the beginning of Matins or immediately after."[203] The inc.u.mbent must not deny the Sacrament, without lawful cause, to any person that devoutly and humbly desires to receive it.[204] But he is directed both by the Canons and by the rubric to repel from Communion, until repentance, open and notorious evil livers, and those who have wronged their neighbours by word or deed so as to offend the congregation, and those between whom he perceives malice and hatred to reign. The Canons add to the list common and notorious depravers of the Book of Common Prayer, or the Ordering of Bishops and Priests, or the Thirty-nine Articles, or depravers of the sovereign authority of the King in causes ecclesiastical, and those who refuse to kneel when receiving the Communion or to be present at public prayers according to the order of the Church of England. When any one is so repelled, the inc.u.mbent must report the matter to the ordinary within fourteen days, or sooner if required by the offending person or by the ordinary himself, and must obey his order and direction in reference to it. The rubric directs that the ordinary shall proceed against the offender according to the Canon, that is to say, by such ecclesiastical censures and punishments as can be inflicted.[205] In Jenkins _v._ Cook[206] the meaning of a "common and notorious depraver of the Book of Common Prayer" was discussed, and the Judicial Committee of the Privy Council held that it did not include a person who omitted certain parts of the Bible from his family reading because he held them, in their generally received sense, to be incompatible with religion or decency. But while they a.s.sumed that being a depraver of the Prayer Book would be as valid a cause for denying Communion as being an open and notorious evil liver, they did not actually decide whether the Canons, which do not as such bind the laity, can of their own authority prescribe causes, sufficient or lawful, for denying Communion within the meaning of the Act of 1547.[207] It would not be expedient in the present day for an inc.u.mbent, under Canons 28 and 57, to refuse the Communion to persons merely because they came from outside his parish to communicate in his church instead of in their own parish church. Nor can he lawfully refuse it to a person who occasionally attends or even communicates in a dissenting place of wors.h.i.+p.[208] The question of admitting to Communion persons who have been baptized in another communion or Christian body, and have not been confirmed in the Church of England, is one of more difficulty. The rubrics in the Communion Office itself are silent on the subject. But the exhortation at the close of the Public Baptism of Infants directs that the child shall be brought to the bishop to be confirmed without delay after a sufficient course of instruction. The rubric at the close of the Baptismal Service for Adults declares the expediency of every person so baptized being confirmed by the bishop with all convenient speed after baptism, that so he may be admitted to the Communion; and the rubric at the end of the Order of Confirmation prescribes that there shall none be admitted to the Communion until such time as he be confirmed, or be ready and desirous to be confirmed. These rubrics must be read together, and are clearly framed with a view to persons baptized in the Church of England. In fact the Prayer Book nowhere contemplates the case of a person who, having been validly baptized in another communion or body, afterwards joins the Church of England, or the case of a person belonging to some other communion who, while temporarily resident in England, desires, without forsaking his own communion, to communicate with his fellow Christians of our Church. As the rubrics stand, such persons, unless and until actually confirmed, have no right to require a clergyman to admit them to Communion, and he commits no legal offence by refusing to do so. On the other hand, a considerable number of such persons do, as a matter of fact, communicate in our Church without having been confirmed or being desirous to be confirmed; and a clergyman who admits them, in the absence of any direction of the bishop to the contrary,[209] may be acting in a wise and Christian manner.

8. The rubrics of the Communion Office prescribe that a sermon or one of the authorised homilies shall follow the Nicene Creed whenever that portion of the office is used, whether a Communion actually takes place afterwards or not. And the 45th Canon enjoins the preaching of one sermon every Sunday of the year. The power of the bishop to require a second and even, in certain cases, a third sermon has already been noticed.[210] But, inasmuch as the Prayer Book contains no direction that sermons shall follow Matins or Evensong, such sermons may be regarded as in the nature of separate or additional services. The 55th Canon prescribes that all sermons, lectures, and homilies shall be preceded by what is called the Bidding Prayer and the Lord's Prayer. But this rule is not in practice observed in the case of sermons in the middle of the Communion Service or immediately following some other service. Under the Act of Uniformity Amendment Act of 1872, Morning and Evening Prayer, the Litany, and Holy Communion may any of them be used with or without the preaching of a sermon or lecture or the reading of a homily; and a sermon or lecture may be preceded either by one of the services appointed by the Prayer Book or by a service authorised by that Act, or by a Collect taken from the Prayer Book, with or without the Lord's Prayer.[211]

9. Regular catechising is enjoined both by the Canons and by the Prayer Book. But the direction in the 59th Canon, that it shall take place for half-an-hour or more before Evening Prayer, is superseded by the rubric at the end of the Catechism, which requires the inc.u.mbent of every parish diligently upon Sundays and holy days, after the second lesson at Evening Prayer, openly in the church to instruct and examine so many children of his parish sent to him as he shall think convenient, in some part of the Catechism.

10. The Churching of Women is regulated by the rubrics at the commencement and close of the service for the occasion in the Prayer Book. It is contemplated as the first service in which a woman takes part after recovery from childbirth; but no specific time is prescribed for it beyond the recommendation that she should receive the Holy Communion if there be a Communion. In former times a woman was not to be churched after an illegitimate birth unless she had previously done penance or acknowledged her fault before the congregation at the time of her churching. Since penance has fallen into disuse, a clergyman must exercise his own discretion in such cases; but he will, of course, neither church nor admit to Communion a woman who impenitently continues a sinful life. The rubric directs that "accustomed offerings" shall be offered at a churching, but their amount is not regulated by any general or well-established rule.[212]

Footnotes

[162] Ch. ii. -- 6 (i.); ch. iii. -- 1; (1865) 28 & 29 Vict. c. 122, ss.

1, 4-8.

[163] (1559) 1 Eliz. c. 2; (1662) 14 Cha. 2, c. 4; (1872) 35 & 36 Vict.

c. 35; Westerton _v._ Liddell (1857) Moore's Special Report, 187; Martin _v._ Mackonockie (1868) L. R. 2 P. C. 365, at p. 383; 38 L. J. Eccl. 1, at p. 11.

[164] Newbery _v._ Goodwin (1811) 1 Phill. 282.

[165] Gibs. Cod. 280; see note to ch. ii. -- 6 (i.) above.

[166] As to the normal order independently of the Act, see the Rubrics and note to -- 7 below.

[167] Cripps, 576.

[168] _Re_ Harts.h.i.+ll Endowment (1861) 30 Beav. 130.

[169] This applies only to a church served by a distinct minister, and not where there are two churches in one parish. But even in such a case the inc.u.mbent has no right wholly to close one church and hold all the Sunday services in the other; Rugg _v._ Bp. of Winchester (1868) L. R. 2 P. C. 223; 38 L. J. Eccl. 23.

[170] (1838) 1 & 2 Vict. c. 106, s. 80.

[171] (1818) 58 Geo. 3, c. 45, ss. 65, 66.

[172] 7 Will, 4 & 1 Vict. c. 45.

[173] The appointment of such person rests with the inc.u.mbent or princ.i.p.al officiating minister; a clergyman in priest's orders is not a "fit" person to collect the offertory money. Cope _v._ Barber (1872) L.

R. 7 C. P. 393.

[174] Sm. Churchw. 80; Reg. _v._ O'Neill (1867) 31 J. P. 742; Howell _v._ Holdroyd (1897) P. 198. An inc.u.mbent often takes sole charge not only of money collected in church but of money collected by appeals within and outside the parish. He should in all such cases lodge it at a bank on a separate account, and notify in his appeal that this will be done. He cannot otherwise reasonably expect to be entrusted with money by strangers; and if the money is mixed with his own, it may be difficult or impossible to disentangle it in the event of his sudden illness and death.

[175] Moysey _v._ Hillcoat (1828) 2 Hag. Eccl. 30, at p. 56.

[176] As stated in ch. i. -- 4, these decisions are part of our Church law, until reversed or altered by future judicial decisions or by legislation. As intimated in the Preface, no opinion is here expressed as to their correctness, or as to what the law ought to be on the points with which they deal. It has been questioned whether in the Ornaments Rubric and in the Act of Uniformity of 1559 (1 Eliz. c. 2), from which it is derived, the mention of such ornaments as were in the Church by authority of Parliament in the second year of Edward VI. refers to the ornaments sanctioned by the First Prayer Book of Edward VI., the use of which was enjoined by the Act of Uniformity of 1549 (2 & 3 Edw. 6, c.

1), or to those previously in use. It may be observed that this Act is referred to as made in the second year of the reign in the later Act of Uniformity of 1552 (5 & 6 Edw. 6, c. 1, s. 4), and the Book itself is a.s.sociated with that year in the 36th Article. In the Bp. of Winchester's Case (1596) 2 Co. Rep. 40 a, the Payment of t.i.thes Act of the same session (2 & 3 Edw. 6, c. 13) is referred to as made in the Parliament holden in the second year of Edward VI. See also Westerton _v._ Liddell (1857) Moore's Special Report, 156, 160; Martin _v._ Mackonockie (1868) L. R. 2 P. C. 365, at p. 390; Elphinstone _v._ Purchas (1870) L. R. 3 A. & E. 66, 94.

[177] Faulkner _v._ Litchfield (1845) 1 Rob. Eccl. 184; Westerton _v._ Liddell (1857) Moore's Special Report, 176-185. A variety of embroidered cloths is permissible; _Ib._188. But the decision in _Re_ St. Luke's, Chelsea (1904) P. 257, that marble is "stuff" within Canon 82, seems open to question.

[178] Phill. Eccl. Law, 733-5; Liddell _v._ Beal (1860) 14 Moo. P. C. 1, 14; Durst _v._ Masters (1876) 1 P. D. 373; Ridsdale _v._ Clifton (1877) 2 P. D. 276; Bradford _v._ Fry (1878) 4 P. D. 93, 106; _Re_ St.

Matthias, Richmond (1897) P. 70; _Re_ St. Ethelburga (1900) P. 80; _Re_ St. John Baptist, Paignton (1905) P. 111.

[179] Liddell _v._ Beal, _ubi sup._; Elphinstone _v._ Purchas (1870) L.

R. 3 A. & E. 66.

[180] Boyd _v._ Phillpotts (1874) L. R. 4 A. & E. 297; (1875) 6 P. C.

435; Hughes _v._ Edwards (1877) 2 P. D. 361; _Re_ St. Mark, Marylebone (1898) P. 115; Davey _v._ Hinde (1901) P. 95; (1903) P. 221.

[181] _Re_ St. Lawrence, Pittington (1880) 5 P. D. 131; _Re_ St. John, Pendlebury (1895) P. 178.

[182] Westerton _v._ Liddell (1857) Moore's Special Report 187,8; overruling Faulkner _v._ Litchfield (1845) 1 Rob. Eccl. 184.

[183] _Re_ Holy Trinity, Stroud Green (1887) 12 P. D. 199; _Re_ St.

Mark, Marylebone (1898) P. 115.

[184] _Re_ St. Agnes, Toxteth Park (1885) 11 P. D. 1; _Re_ St. John Baptist, Timberhill (1895) P. 71.

[185] White _v._ Bowron (1873) L. R. 4 A. & E. 207; 43 L. J. Eccl. 7.

[186] Groves _v._ Rector of Hornsey (1793) 1 Hag. Cons. 188; Clayton _v._ Deane (1849) 7 Not. of Ca. 46, 53; Vicar of Tottenham _v._ Venn (1874) L. R. 4 A. & E. 221; Peek _v._ Trower (1881) 7 P. D. 21; Nickalls _v._ Briscoe (1892) P. 269. See also note (1) on p. 146 below.

[187] Ridsdale _v._ Clifton (1877) 2 P. D. 276. See note (1) on p. 87.

[188] Elphinstone _v._ Purchas (1870) L. R. 3 A. & E. 66.

[189] Enraght's case (1881) L. R. 6 Q. B. D. 376; (1882) 7 A. C. 240.

[190] _Re_ Robinson: Wright _v._ Tugwell (1897) 1 Ch. 85.

[191] Sumner _v._ Wix (1870) L. R. 3 A. & E. 58; The Archbishops on Incense and Lights in Processions: Hearing at Lambeth (1899) _Times_, Aug. 1 (also published by Macmillan & Co., 1899, price 1s.)

[192] Read _v._ Bishop of Lincoln (1891) P. 9; (1892) A. C. 644.