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Chapter 5



The principle of Uniformity has received its best explanation at the hands of Sir John Nicholl, one of the greatest of Anglican ecclesiastical lawyers, in the case of Newbury v. Goodwin, which came before the Court of Arches in 1811. Goodwin was the incumbent of Heathfield, a village in Sussex, and in reading the First Lesson on a Sunday morning he omitted certain verses of which he disapproved. The suit was promoted by an aggrieved parishioner who liked his Prayer Book service in its entirety. In giving judgement Sir John Nicholl said: ‘The law directs that a clergyman is not to diminish in any respect, or add to the prescribed form of worship; – uniformity in this respect is one of the leading and distinguishing principles of the Church of England – nothing is left to the discretion and fancy of the individual.’ [I Phillimore, 282.]

In the latter clause Sir John Nicholl puts his finger on the motive which lay behind the seventeenth-century liturgists’ stress on uniformity. If the liturgy is the prayer of the Church, it must be the same wherever it is celebrated. If the individual can change it according to his discretion and fancy, it ceases at once to be the prayer of the Church and liturgical life disappears. During the Commonwealth the liturgists had bitter experience of what could happen when there was no uniform rite. L’Estrange records how one minister denied the mediatorship of Our Lord by refraining from addressing prayers either directly to Him or through Him to the Father. Another thought the mere mention of sin ‘impertinent in those who are planted into Christ’, and so cut out all forms of confession and prayers of a penitential nature. [op. cit., p. 52.]

Even after the Restoration individual clergy added to and omitted from the Prayer Book services anything they thought fit. In a letter of January 1683, written by a gentleman of the Inns of Court, probably to Dean Granville, there is a complaint that in London there are as many ways of worship as there are ministers. The practices he complains of include: leaving out the opening Sentences, Exhortation, Confession, and Absolution at Mattins and Evensong; substituting a metrical psalm for the Benedictus or Jubilate; interpolating the Visitation of the Sick into Altar Prayers; the substitution of a prayer of the minister’s own composition for the Prayer for the Church Militant; omitting the opening Our Father and the Nicene Creed from the Communion Office. [Wickham Legg: English Church Life, pp. 111-17.] After the Restoration the liturgists are constantly inveighing against the practice of the minister using a prayer of his own in the place where the Bidding Prayer is ordered.

To divines who believed that a liturgy was the prayer of the Church and not of particular individuals, that one of the properties of liturgy was the proclamation of divine truth, and that each prayer had a particular meaning in the particular place which it occupied, the absence of uniformity seemed destructive of all they were fighting for. It allowed each minister to undermine the liturgical life of the Church. When Granville wants to praise a brother priest, he calls him ‘a good rubric man’ [Remains, I, p. 209]; he has nothing but contempt for those ‘who prefer their own voluntary and private dictates before the public and approved forms of the Church’. [Ibid., p. 253.] This insistence on uniformity is due to a great deal more than love of legalism. Tillotson’s famous taunt to Beveridge, ‘Doctor! doctor! charity is better than rubrics’ does not really meet the point at issue. To the liturgists it was only through conformity to the rubrics, through a faithful and exact reading of the prayers, and the disciplined and balanced Christianity which they gave, that the faithful could be brought to the divine charity which is the end of the Christian life.

Thorndike, whose defence of the principle of uniformity is the fullest and most adequate, shows that the reasons which led the liturgists to attach to it so much importance are primarily not legal but pastoral and devotional. He contends that prayers of the minister’s own choice or composition, however moving and homely they may be, can never compensate his congregation for being deprived of the liturgy. Such prayers are not the prayer of the Church but the private devotions of the minister in which the congregation are allowed to share. They can never adequately represent the needs of the Church; in fact the only thing which they represent is the minister’s own spiritual experience. Instead of being allowed to sink themselves in the age-long prayer of the Corpus Christi, the faithful have inflicted on them the minister’s own personality. They are at his mercy; he can impose on them any religious or political eccentricity which at the moment has captured his interest or enthusiasm; the service can degenerate into an act of intercession for what he thinks desirable in Church and State. The congregation find it hard to enter heart and soul into the service; they are distracted by wondering what is coming next; the service often only ministers to curiosity and excitement. [Works, I, pp. 240-3; Taylor; Works, V, pp. 233, 302; Beveridge: Works, VI, pp. 371-4. Cf. also Cosin: Works, V, pp. 403-5; L’Estrange, op. cit., pp. 24-5; Wickham Legg: Principles and Services of the Prayer Book, p. 137.]

The Puritans maintained that extemporary services showed far more evidence of the Holy Spirit’s inspiration than the formality and dignity of the Prayer Book. But as Thorndike, and at the end of the century Stillingfleet, point out, it is illogical and arbitrary to limit the inspiration of the Holy Spirit to the liturgical productions of individuals and to exclude it from the liturgy of the Church, the product of the age-long wisdom and devotion of Christendom. They also add that the very badness of services, which are the work of liturgical amateurs, is calculated to bring the work of the Holy Spirit into contempt and make Christian worship ridiculous. [Stillingfleet: Works, ed. 1710, III, pp. 629-30.] Sir Leoline Jenkins reaches a conclusion, representative of High Church opinion on this subject, when in a letter dated 30 July 1659 to his friend Mr. Athanasius Davies, he writes, ‘that method in public offices must needs be most acceptable to God, and most warrantable as to men, which is according to His word, established by the Church, whom Christ hath authorized and promised to assist in such cases’. [Life, op. cit., pp. 645-6.]

Thorndike thinks too of the spiritual life of the clergy. Not only the congregation suffers when they liturgy is altered or abandoned by the individual minister; his own spiritual life suffers too. He is perpetually thinking of what to do or say next and so cannot possibly worship; if he has prepared his prayers beforehand, his mind is occupied with what effect they are having on his congregation. He becomes self-conscious; he strains after impressiveness instead of sinking himself in the impersonality of the liturgy. [Works, I, pp. 240-3.]



It is clear from Thorndike’s treatment of uniformity that the liturgists in expounding the principle had in mind the evil results which ensued to the life of the Church when each minister was allowed to alter the liturgy as he liked, or substitute services of his own in its place. But the principle raises a further question of equal importance, that of change and development in the liturgy. The High Churchmen realized that a liturgy cannot be static, that new conditions may make changes necessary, that it is built up out of the devotion of every age. Did they, in spirt of this, interpret the principle of uniformity to mean that the Church is for ever bound to the Prayer Book of 1662? This was the interpretation adopted by the Privy Council in the last century in the ritual cases of Westerton v. Liddell (1857) and Martin v. Mackonochie (1868); their Lordships declared that the directions in the Prayer Book were to be strictly observed, and that no omission or addition could be allowed. [Moore: The Cases of Westerton v. Liddell, p. 187; Martin v. Mackonochie, 2 P.C. Appeal Cases, at 383.] The Church courts today enforce this interpretation; it means that anyone who adds to or deviates from the 1662 services, even if in his additions or omissions he is following not his own liturgical invention, but a widespread practice of the Church, whether he is a bishop or a priest, he is guilty of an offence against the laws of the Church.

The solution of the Privy Council was due to a peculiar view on the nature of the Prayer Book itself. Because it was annexed to the Act of Uniformity of 1662, it was held to be part of statute law, and therefore subject to the principles of interpretation governing statute law. Stephens in his Notes on the Book of Common Prayer gives the classical statement of this view: ‘The original Manuscript Book of Common Prayer and the "Sealed Books" are part of the statute law of the land; and all the legal and equitable principles of construction, which apply to statutes in general, equally apply to the Book of Common Prayer, and any omission from or addition to its text, unless expressly authorized by subsequent statute, is illegal.’ [A. J. Stephens: Notes on the B. C. P., Introduction, p. clxxiv.]

In all fairness to the Privy Council it should be said that they did not originate this method of treating the Prayer Book. It is first found explicitly used in the Court of Arches in 1845 in the case of Faulkner v. Litchfield, when Sir Herbert Jenner Fust pronounced credence tables to be an illegal ornament because nothing was said about them in the Prayer Book. [I Robertson’s Ecclesiastical Reports, at 212-13, 259.] Something very like the method appears as early as 1629 in Smart’s case when the judge, in reference to Cosin’s ceremonial usages at Durham, said that those who did more as well as those who did less than what was commanded in the Elizabethan Act of Uniformity were breaking the law. This was not the judge’s settled view; for he later decided that there was no law under which Cosin could be charged for his ceremonial practices, though they found no mention in the Elizabethan Prayer Book. [Cosin: Correspondence, I, pp. 156-8.] The tendency to administer the Prayer Book like statute law will always be found amongst those who exalt Parliamentary sovereignty; its triumph in the nineteenth century was due to the gradual decline in the understanding of the traditional principles and workings of ecclesiastical law.

The solution of the Privy Council has the merit of being simple, logical, and coherent; unfortunately it has proved unworkable, witness the contradictory opinions which the Privy Council has given in ritual cases. And it has proved unworkable because it is an attempt to rule by statute law something which by its very nature cannot be understood by applying the ordinary rules governing the interpretation of a statute. Treating the Prayer book as a statute means the subjection of the liturgy to a system of law, which in its necessary rigidity is alien to the Church’s life; the liturgy needs a delicacy and suppleness of treatment which the hard and fast methods used in interpreting a statute are quite unable to give. Herein lies the importance of the Lincoln Judgement (1890), described by Dean Church as the most courageous thing which had come from Lambeth for two hundred years. The Church owes an enormous debt of gratitude to Archbishop Benson, not so much for his decisions on the particular points it issue, but for his courageous recognition that the rules employed by temporal lawyers in the interpretation of statutes make nonsense when applied to the liturgy, that the liturgy is something living, only to be understood in the light of the Church’s life and history.

The Privy Council interpretation of the principle of uniformity has other disadvantages. It conveys the impression that the authority of the liturgy rests on its embodiment in an act of Parliament, and not on the consent of the Church expressed through the Convocations. Parliamentary legislation ultimately becomes the sole means of effecting any changes in the liturgy. A good case can be made out for Parliamentary legislation in Church affairs in the seventeenth century; but subsequent events have deprived Parliament of all living contact with the Church, and made it a body quite unfitted to deal with such a sacred and intimate part of Church life as the liturgy.

The Church is unable to express itself as a living, organic body. Being a community, its prayer, the liturgy, is bound in some degree to change with the passage of time. New conditions, new possibilities, will make changes and additions desirable; old prohibitions will become an encumbrance since the purpose they were meant to serve has been accomplished. But treating the Prayer Book as an act of Parliament has prevented it keeping pace with the changing life of the Church. Any alterations which the Church may make to meet new needs, either spontaneously through the action of custom, or of set purpose through legislation in Convocation, are labeled illegal unless they possess the sanction of Parliament. The dead hand of statute law stifles the liturgical life of the Church.

In actual fact the Church, being a living body, has refused to let its liturgical life be imprisoned in statute law; by additions, modifications, omissions, the 1662 Prayer Book has been altered. But according to the theory, which since the Privy Council cases of the last century has been regarded as ‘official’ in the Church of England, they are illegal; for it is an accepted maxim of English law that neither non-usage nor contrary custom can abrogate statute law. The result has been liturgical chaos. In the absence of any reputable authority capable of altering the liturgy or guiding the changes imposed by custom, it has altered and changed under no coherent plan. Each individual congregation has adapted the Prayer Book to its personal tastes. In an effort to keep the liturgy in touch with the Church’s life, we have come perilously near to losing sight of the liturgy as the prayer, not of individuals, but of the whole Church.

The solution of the Privy Council is the principle of uniformity gone wrong; it ends in the destruction of all genuine life in the Church and makes liturgical worship impossible. The seventeenth-century liturgists frankly recognized that in some things the Prayer Book was deficient, and remedied these deficiencies from other authorities, a course followed by the ecclesiastical and temporal courts down to the forties of the last century. Their method of reconciling the necessity of change with the principle of uniformity becomes apparent when we examine their own views and those in the legal judgements of the period, on such things as the nature of the authority attaching to the 1662 Act of Uniformity, the so-called jus liturgicum of each bishop, and the relationship between the Prayer Book rubrics and the customary law of the Church.

There is one striking difference between the liturgists writing before and those writing after the Restoration. The former in speaking of the authority on which the Prayer Book rests, pay little attention to the Elizabethan Act of Uniformity; they are content with declaring that the Prayer Book is the Church’s liturgy without going into details on the precise source of its authority. The latter, on the other hand, tend to pay increasing attention, as the century goes on, to the fact that it is annexed to an act of Parliament. They appeal to the Caroline Act of Uniformity as one reason for obeying the Prayer Book directions; in an age which was fast losing all sense that the Church has power to impose its own discipline, temporal law became the only authority which men were prepared to accept in the practice of their religion. Churchmen tended to regard it as a matter of congratulation that their liturgy had received the authority of statute law. After the Restoration the liturgists are inclined to take a static view of the Prayer Book. They felt that in 1662 they had obtained all they wanted. The Prayer Book rubrics embodied many of the features desired by the Laudian divines. The difficulty of getting a minimum of the Prayer Book directions obeyed, in an England which still retained a taste for extemporary services, made them afraid that further improvements might render ineffectual the efforts they were making to win the country back to its use. The growing rationalism aroused a fear that any further revision would mean the end of those elements in the liturgy which they valued intensely as linking the worship of the seventeenth century with the primitive Church. All this resulted in an inclination to contemplate the existing Prayer Book as a model of perfection, and to expound its beauties with an occasional regret that it was not more like that of 1549.

It is easy to interpret both the emphasis laid by the later liturgists on the 1662 Act of Uniformity, and their dislike of change, as an inclination to accept only the authority of Parliament on matters liturgical. In fact their attitude has been advanced as an argument in favour of the Privy Council’s opinion. It is startling to find a staunch High Churchman like Johnson of Cranbrook justifying a refusal to use the Accession Service on the ground that it did not possess the authority of Parliament. [Cf. his tract, The Case of a Rector refusing to preach a Visitation Sermon, 1723.] Yet in spite of all that High Churchmen say about the Act of Uniformity, they are quite clear that it is not the legislative enactment which made the 1662 Prayer Book the liturgy of the Church. The Convocations are the proper bodies for this kind of legislation; but they would have added that the lack of Church discipline made it desirable for the conclusions of the Convocations to receive Parliamentary authority. Wheatly in the introduction to his rationale takes great pains to point out that the authority on which the Prayer Book rests is not statute law, but that of the bishops and clergy in provincial synods, ‘the king and parliament only establishing by civil sanction what was there done by ecclesiastical authority’. [op cit., Introductory Discourse.] As passed by the Convocations the Prayer Book is obligatory in foro conscientiae; as confirmed and ratified by Parliament it becomes obligatory in foro civili. As an instance of what he means, Wheatly says that the Act of Toleration has made nonconformists no longer liable to the penalties imposed by statute for not attending the services of the Church of England; but they are still guilty of the sin of schism for not attending the services imposed by due authority in the Catholic Church of the country. Sparrow treats the Acts of Uniformity in much the same way. The authority of the Prayer Book comes from the Convocations; Parliament had no hand in drawing it up; it merely gave it the confirmation of temporal law.

In Cawdry’s Case, Coke had pointed out that the Elizabethan Act of Uniformity did not deprive the Church of its jurisdiction in its own courts over offenders against the liturgy, a jurisdiction which it had possessed from time immemorial; it merely made them liable in addition to proceedings as well in the temporal courts. [77 English Reports, at 7.] Much the same is said about the Caroline Act of Uniformity by Nicholls in his commentary on the Prayer Book. To the seventeenth-century liturgists the authority of the Prayer Book rested not on its embodiment in an act of Parliament, but on the approval, even though this approval was not expressed by formal canon, given to it by the Convocations on the 20th December 1661; the approval of the Upper Houses expressed in the words redigimus, recepimus, et approbavimus, and the assent of the Lower Houses in the words consensimus et subscripsimus. Its embodiment in the Act of 1662 gave it the enhanced authority of temporal law; but it did not increase the obligation of churchmen to use it; it would still be the Church’s service book even if it hat never received Parliamentary sanction. [Joyce, England’s Sacred Synods, p. 273.] The Act did not deprive the Church of the right of administering it in the ecclesiastical courts and interpreting it according to the rules and maxims of ecclesiastical law.

Both the Elizabethan and Caroline Prayer Books were lacking in such services as the consecration of churches and churchyards, and the benediction of altar plate, services necessary in the life of the Church. It was usual for each bishop to draw up such services for use in his diocese as occasion required; and his right thus to put out services for which the Prayer Book made no provision does not seem to have been questioned. It is noticeable, however, that the practice of each bishop drawing up consecration orders stopped when the Convocations issued one in 1712. Apart from the right to supplement the Prayer Book, the bishop’s jus liturgicum is strictly limited to the giving of directions in cases where the interpretation of the rubrics is in dispute. He cannot dispense with what has been established by an act of Parliament or provincial legislation. [Keble: Life of Thomas Wilson, I, p. 22; Johnson: Canons, xlv.] In Smart’s case which has previously been mentioned, one of the charges against Cosin was standing up at and singing the Nicene creed; this was evidently regarded as a matter in which the meaning of a rubric was in doubt. The bishop intervened and claimed in a letter supposedly written to Laud that he had ‘provided for an uniformity in the divine service, according to the ancient use of that Church, before the late alterations’. [Cosin: Correspondence, I, p. 201.] The last words are interesting; the bishop evidently did not feel at liberty to interpret the doubtful rubrics according to his own ideas; he acted in the light of previous usage.

Much of the seventeenth-century ceremonial could not claim the authority of either the Elizabethan or Caroline Prayer Book rubrics. The liturgists were quite conscious of this and not in the least worried. In defence of their ceremonial they appealed to authorities outside the Prayer Book in a way which was quite logical and coherent, and which received the sanction of the ecclesiastical and temporal courts. The authorities to whom they appeal are the 1604 canons, and the customary usage of the Church, some of it dating from time immemorial, some of it of post-Reformation origin. The details of the customary usage retained in the Church they found in the fuller rubrics of the 1549 Prayer Book and in the canons of 1640 [Granville: Remains, II, p. 94]; at the end of the seventeenth century the 1549 Prayer Book was looked on as a guide to ceremonial in matters where that of 1662 was silent or deficient. [Thomas Sharp: The Rubric in the Book of Common Prayer, etc., 1753, pp. 26, 28.]

Up till the end of the seventeenth century the canons of 1604 were regarded as an authoritative part of the ecclesiastical law, though they had never received the sanction of Parliament. The modern view that the canons of Convocation only bind the clergy proprio vigore dates from Lord Hardwicke’s famous judgement in Middleton v. Crofts (1736); Lord Hardwicke based his judgement on the argument that laws were best made by the landed gentry and that the clergy were not really representative of the laity [2 Atkyns, at 652-4], a remarkable piece of legal perversity; it is difficult to believe that the creator of Uncle Toby did not know better what the ordinary man was thinking than Lord Chesterfield.

But the canons of 1604 dealt very little with ceremonial; so the liturgists had recourse to the age-long practice of the Church contained in no written law but in custom of the community; a course of action in which they received the support of the courts. In 1573 one Robert Johnson, a noted Puritan divine, was imprisoned by the Court of High Commission for administering unconsecrated wine at the Eucharist; the chalice had become exhausted, and he had then proceeded to administer ordinary wine without repeating the words of consecration. ‘For as it had not the word’, as the Bishop of London said at the trial, ‘it was no sacrament, and the people were mocked.’ Johnson defended himself on the ground that a fresh consecration was not ordered by the Elizabethan Prayer Book. The judges dismissed the contention on the ground that by a divine ordinance there could be no valid Eucharist unless the words of institution were said over the elements. They appeal to Our Lord’s example in His blessing the elements at the Last Supper. His action had become the usual and customary practice of the Church at the Eucharist, and was still the law of the Church of England. [Brook: The Lives of the Puritans, I, pp. 176-88.]

In Smart’s case already referred to, the judge, presumably for the same reason, said there was no law under which Cosin could be charged for his ritualistic practices which included such things as the use of lighted candles; they were in accordance with the customary law of the Church, though not ordered in the Prayer Book. The most famous case, illustrating the authority paid to the unwritten ceremonial law of the Church, is one of 1622, the case of Elizabeth Shipden. The Chancellor of the Norwich diocese had made an ordinance ordering all women coming to be churched to wear a white veil. Mrs. Elizabeth Shipden refused to obey and was excommunicated. A prohibition was moved in the Court of King’s Bench on the ground that the ordinance was an innovation, not allowed by any ancient custom or canon or other law of the Church. The judges asked the opinion of Archbishop Abbott; he assembled six other bishops who were in London, and they certified the action of the Chancellor to be in accordance with an ancient custom of the Church of England that all women coming to be churched should wear white veils. The judges accepted the bishops’ verdict and refused to grant a prohibition; a definite recognition that the ancient customary ceremonial of the Church, though not mentioned in the Prayer Book, was still part of the Church’s law in matters liturgical. [Palmer: Reports, 296; cf. Wickham Legg: Ecclesiological Essays, p. 242.]

In one report of Elizabeth Shipden’s case the judges are said to have declared that the Chancellor’s ordinance was only binding because it was a declaration of a pre-Reformation custom; they expressly say that a custom whose origin is subsequent to the Reformation does not enjoy such an authority. [Rolle: Abridgment, p. 221.] Much, however, of seventeenth-century ceremonial, such as the use of a credence table, the turning to the east for the Creed and Gloria, the bowings and genuflexions, the offertory processions, certainly as they were practised by the liturgists, could claim no greater authority than that of post-Reformation customary usage. Yet before the civil wars the ecclesiastical courts were enforcing this post-Reformation customary usage; one John Smith of Stambridge Magna in Essex was brought before the Archdeacon’s court in 1638 for, amongst other things, not turning to the east for the Creed and Gloria. [Hale: A Series of Precedents and Proceedings, p. 261.] After the Restoration, however, when statute law was beginning to strangle the liturgical life of the Church, the authority of the customary law gradually declined. Granville laments that it can no longer be imposed by a priest on his people with any great authority or practised by himself except in moderation. [Remains, II, p. 97.] On the other hand at the time when Bishop Wilson was ordained in 1683, these ‘ancient, commendable and devout’ usages are said to have been practised by thousands of good people. [Keble: op. cit, p. 23.]

The liturgists not only admit the authority of custom in cases where the Prayer Book is silent; they occasionally maintain that a customary usage can abrogate a rubrical direction in the Prayer Book in spite of the fact that it is statute law. It must be admitted that after 1662 such instances become very infrequent. In spite of the 1662 rubrics on the Offertory, Bishop Bull is known to have placed the elements on the altar before the service began, a practice which is thought to have been by no means uncommon. Wheatly explains for the neglect of the ornaments’ rubric on the ground of desuetude. [op. cit. ch. II, 4, 4.] Granville mentions a conversation which he had with Fell, Bishop of Oxford, when they discussed the possibility that the rubric on weekly celebrations in cathedrals had been abrogated by custom. [Remains, I, p. 172.]

Usually the High Churchmen prefer to say that the rubrics must be interpreted to agree with the liturgical practices of the Church prior to the Reformation unless they were expressly abrogated by the Prayer Book. For instance, the Puritans objected to the congregation saying Christ have mercy in the Kyries between the Creed and the Our Father in the daily offices, on the grounds that the Prayer Book assigns it to the minister. To this cavilling, Cosin says: ‘Let ancient custom prevail, the thing which our Church chiefly intended in the review of this service.’ [Cosin: Works, V, p. 65.] In the anonymous pamphlet published in 1723 [Two Discourses, pp. xviii—xxii, vide supra, p. 54.] there is an interesting discussion on the legality of the mixed chalice. The writer admits that the rubrical direction for the commixture in the 1549 Prayer Book and its subsequent omission is strong evidence that the practice is contrary to the existing rubrics. On the other hand the practice dates from the Fathers, and the writer takes the view that the liturgy should be interpreted in accordance with the customs of the early Church; it was in use amongst the Jacobean divines whose knowledge of liturgiology and devotion to the Prayer Book, the writer argues, make it inconceivable that they can have wittingly practised something which the Reformers had forbidden. But even if the mixed chalice was forbidden after 1549, there were special circumstances at the Reformation which made a prohibition desirable, namely, the presence in the Church of those who thought such a practice a relic of popery. The mixed chalice was forbidden from a desire not to offend them. But the increased knowledge of early liturgies has shown that it is a harmless and edifying practice; and the people whom the prohibition was meant to conciliate have disappeared. On the principle, therefore, of lex cessat causante, the prohibition is no longer binding.

The argument that the Prayer Book rubrics are to be interpreted against the background of primitive usage contains in germ a method of treating the rubrics which was elaborated and developed by Sir John Nicholl in the Arches case of Kemp v. Wickes in 1809, Sir Herbert Jenner Fust in the Arches case of Breeks v. Woolfrey in 1838, and Lord Brougham in that of Escott v. Mastin which came before the Privy Council in 1842. All these judgements take a line directly contrary to the later principle of the Privy Council that in using the Prayer Book no additions or omissions can be permitted. In the cases of Kemp v. Wickes and Escott v. Mastin the interpretation of a rubric was in dispute; and in both cases it was held that a rubric dealing with a matter which has already been the subject of direction in the written or unwritten law of the Church must use express terms in order to abrogate the previous directions; otherwise both remain in force, and the rubric must be interpreted in agreement with the previous directions. [Kemp v. Wickes, 3 Phillimore, at 286; 4 Moore, 130-1.] A very similar line of argument was taken by Sir Herbert Jenner Fust in the case of Breeks v. Woolfrey. A Mrs. Woolfrey had put on her husband’s tombstone the words ‘Pray for the soul of John Woolfrey’; her vicar prosecuted her in the Arches Court; but the judge dismissed the case on the ground that though the 1552 and subsequent Prayer Books discouraged prayers for the dead, the practice had the authority of the primitive Church and was not directly forbidden in the Prayer Book. [I Curteis: at 898, 903. I am indebted to Mr. S. Royle Shore, the distinguished church musician and ecclesiastical lawyer, for calling my attention to these cases.]

By recognizing that the sources of the liturgy were wider than the Prayer Book, the liturgies, and up to the middle of the last century the lawyers too, allowed the liturgy of the Church to keep pace with its changing life. In the authority which they attach to custom, not only in adding new ceremonies, but in interpreting and correcting the exaggerated prohibitions of the Reformation, they had a legal weapon perfectly justifiable according to the principles of canonical jurisprudence, and which in liturgical matters was capable of saving the Church from the legalism of statute law. It is chiefly in the matter of rubrics and ceremonial that the liturgies pay regard to custom. They do not appear to have discussed the possibility of allowing changes in the prayers, their words, and their order, on its authority. Nor is there any recorded instance of this authority being used to justify the additions to or omissions from the rite which the liturgists lamented; the alterations were made from a dislike of liturgy itself.

It can very reasonably be argued that the authority which the liturgists attached to custom in matters of ceremonial destroys the principle of one uniform service; for a minister might on the plea of custom adopt any ceremony, however peculiar and eccentric. The liturgists, when talking of custom never seem to have contemplated this situation. The ceremonial which they had in mind was that mentioned in the last chapter, widespread in the Church and uniform in its main features; since it was not ordered in the Prayer Book, they found their authority for its use in custom. Although much of this ceremonial grew up in the seventeenth century, they never seem to have discussed what was necessary to give an alteration in the liturgy the force of customary law. In western canonical jurisprudence, which forms the basis of Anglican ecclesiastical law, a custom to become law must be prescriptive and rational. Prescriptive refers to the amount of time it has been in existence, and the ecclesiastical courts insisted on a period of forty years. [I Lee, at 205.] Rationality refers to the moral quality of the custom; for a liturgical custom to be rational, they would probably have said that it must not contradict but bring out and emphasize the central features of the Anglican Liturgy, its corporateness, its regard to divine truth, the special plan and structure on which each service was built up. It may be that by applying the views of the seventeenth century on the authority of custom in matters liturgical, we may find a solution of the existing muddle and make our liturgical life a coherent and ordered thing.

Summing up this chapter we may say that the liturgists as their third key principle, lying at the root of all liturgical life, maintained that the liturgy must be uniform throughout the Church. No changes in it could be made by either individual ministers or bishops on their own authority. [It was only changes in the liturgy that the principle forbade; in the case of Rex v. Sparkes (3 Mod. 79), it was held that the minister was legally able to hold unliturgical services, provided they were not instead of those in the Prayer Book. High Churchmen had an intense dislike for this decision; they were afraid that unliturgical services would succeed in ousting the liturgy.] But this uniformity did not mean that the Church was tied to the 1662 Prayer Book till Parliament decided to sanction changes, or that the liturgy could not develop and expand. The proper authorities for effecting alterations were either customary usage or legislation in the Convocations; although in view of the times it was deemed desirable to get Parliamentary sanction for decisions of the latter. The ceremonial in particular was based primarily on the age-long customary ceremonial usages of the Church, much of it not mentioned in the Prayer Book, in agreement with which the Prayer Book rubrics were to be interpreted unless they expressly abrogated it on any point. The liturgy could be added to and expanded by the force of custom to meet the changing needs of the Church. But it was not open to any individual minister to start new departures on his own authority; or if he did so, they only became defensible when they were taken up by the community and had fulfilled the conditions necessary for custom to become law.

The only exception to the principle of uniformity was the freedom in the choice of hymns allowed to the officiating minister. Long continued usage based on the 1549 Act of Uniformity sanctioned the introduction of hymns into the liturgy. But the minister’s freedom was held to be limited both as to the manner of singing and the place which the hymns occupied in the service. Parish churches were not supposed to imitate cathedrals; the tunes were to be such as all could sing. According to the 1549 Act of Uniformity any psalm or prayer from the Bible may be used, ‘not letting or omitting thereby the service or any part thereof’. This means, hymns may not be used instead of any prescribed part of the liturgy; nor may they disrupt the order of the service. They must come at natural breaks in the liturgical action. [Cf. E. F. Roscoe: The Bishop of Lincoln’s Case, pp. 148-52.] The Elizabethan Injunctions allowed hymns at the beginning and end of the daily offices, and the Prayer Book rubric provides for an anthem after the Third Collect. Other hymns were sung in the Eucharist as an Introit, Offertory, and Communion; their use here was sanctioned by custom and comes at a natural break or pause in the action. It was not uncommon in the period for a metrical psalm to be sung after the Second Lesson: the liturgists always disliked the practice, as it disturbed the movement of the service. The same objection does not apply to an office hymn after the First Lesson; the hymn comes quite naturally as the Church passes from the contemplation of the Old to the New Covenant. The liturgists and High Churchmen in general had not much interest in hymns; the only collections of any size in popular use, which they knew, were the metrical psalms of Sternhold and Hopkins, dating from 1562, and the Evangelical hymnals, beginning with John Wesley’s collection in 1737. The great age of Anglican hymnody comes after our period. The liturgists concentrated on preserving the order and dignity of the liturgy from being spoilt by unsuitable hymns; apart from Wither and Ken they had no constructive policy on building up a vernacular hymnody suited to the liturgy. [For the legal position on hymns, vide Lord Stowell’s judgement in Hutchins v. Denziloe and Loveland, Haggard: I Consist. at 175-80.]

In interpreting the principle of uniformity it is important to remember that it was evolved by seventeenth-century High Churchmen to preserve liturgical life amongst the faithful, not to stop liturgical growth. They were thinking of a Church with no religious communities and whose places of worship were for the most part parish churches. They never envisaged the problem raised by religious communities who obviously find insufficient a rite which caters for clergy and laity living in the world. It is therefore illegitimate to interpret the principle as forbidding religious communities from having a rite different from the Prayer Book; at Little Gidding the Ferrars recited the whole Psalter daily according to a scheme of their own.

To the liturgists uniformity was the safeguard necessary for the continued existence of the liturgy in England as the prayer of the Church; it ensured that clergy and laity alike were nourished on the riches of liturgical worship, a worship which is a sine qua non of the Christian life. Uniformity guaranteed that the liturgy proclaimed Christian truth, and that its rites and ceremonies were worthy of the divine majesty and holiness.


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