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The Clerical Declaration of Assent
Published online by Cambridge University Press: 15 April 2016
Abstract
Following the Reformation, uniformity was a key principle undergirding worship in the Church of England. The Crown claimed the prerogative to order the use of, and to alter, Church services in spite of the provisions of any Act of Uniformity, the Canons or any Declaration of Assent. This caused confusion among the clergy and others as to who had ‘lawful authority’ to permit such usages or changes. This confusion was exacerbated by episcopal claims to a jus liturgicum. Statute and case law, as well as the wording of the Declaration, also ensured rigidity in doctrinal adhesion. Since the Church of England (Worship and Doctrine) Measure 1974 and recent amendments to the Canons and the Declaration of Assent, this rigidity has been relaxed and clarity provided as to who may authorise services or permit departure from otherwise authorised forms of service.
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References
2 See M Davie, Our Inheritance of Faith: a commentary on the Thirty Nine Articles (Malton, North Yorkshire, 2013), pp 72 ff; C Podmore, Aspects of Anglican Identity (London, 2005), pp 44 ff.
3 See Davie, Inheritance of Faith, pp 22 ff.
4 Subscription and Assent to the Thirty-nine Articles: a report of the Archbishops’ Commission on Christian Doctrine (London, 1968), para 1.
5 An Act for the Ministers of the Church to be of Sound Religion 1571, ss 3 and 5; see also A Stephens, The Statutes Relating to the Ecclesiastical and Eleemosynary Institutions, 2 vols (London, 1845), vol 1, p 432, n 2. The 1571 Canons provided: ‘Subscribet omnibus Articulis de Religione Christiana, in quos consensum est in Synodo; et publice ad populum, ubicunque Episcopus jusserit, patefaciet conscientiam suam, quid de illis Articulis et universa doctrina sentiat’ (‘… subscribe to all the articles of the Christian religion agreed to in Synod and (wherever the bishop directs) shall publicly make known to the people his adherence to those Articles and to the whole of Christian doctrine’): E Gibson, Codex Juris Ecclesiastici Anglicani, 2 vols (Oxford, 1761), vol 1, p 148, note bb.
6 See HM Procurator General v Stone (1808) 1 Hag Con 421; Sanders v Head (1843) 3 Curt 565; Hodgson v Oakley (1845) 1 Rob Ecc 322; Gorham v Bishop of Exeter (1849) 2 Rob Ecc 1, on appeal (1850) 7 Notes of Cases 157; Re Dennison (1856) 27 LTOS 300; Heath v Burder (1862) 15 Moo PCC 1; Fendall v Wilson (1862) 7 LT 474; Williams v Bishop of Salisbury (1864) 2 Moo PCCNS 375;Voysey v Noble (1871) LR 3 PC 357; Sheppard v Bennet (1871) LR 4 PC 371.
7 As to which articles, see Stephens, Statutes, vol 1, p 430, n 1.
8 It was decided in HM Procurator General v Stone (1808) 1 Hag Con 424 at 432 that a mere promise of future silence ‘is no revocation; and that is the demand of the statute. It might be satisfied, if mere future silence was all that is required; but that is no revocation of the past.’
9 N Mears, A Raffe, S Taylor and P Williamson with L Bates (eds), National Prayers: special worship since the Reformation, 3 vols (Woodbridge, 2013), vol 1, p lxii, says: ‘As canon 72 made clear, a lawful authority included the “ordinary”, that is (normally) the diocesan bishops, who could order special acts of worship and even fasts in parishes under their jurisdiction.’ However, the Canon does no more than refer to solemn fasts and, indeed, may not go so far as to permit a direction without a prior application from the relevant minister.
10 Subscription and Assent to the Thirty-nine Articles, para 22: ‘The ends in view were to restrain domestic controversy about the five anti-Arminian Articles which were decreed by the Synod of Dort in 1619, and to curb the claim of Parliament to settle matters of the Church's doctrine and discipline by its own actions’. The Articles were not regularly bound up with the Prayer Book until after the Restoration: ibid, para 22, n 1, para 72e.
11 The Act of Uniformity 1558 had made provision for the ornaments of the Church and its ministers to be altered by the Queen with the advice of the High Commissioners or the Metropolitan (s 25). Section 26 further provided that ‘if there shall happen any contempt or irreverence to be used in the Ceremonies or Rites of the Church, by the misusing of the Orders appointed in [the Elizabethan Prayer Book], the Queen's Majesty may, by the advice of the said Commissioners or Metropolitan, ordain and publish such further Ceremonies or Rites as may be most for the advancement of God's glory, the edifying of his Church, and due reverence of Christ's holy Mysteries and Sacraments.’ It was under this latter provision that a new Kalendar was published (Gibson, Codex, vol 1, p 271, note g). It was also under this provision that the minor alterations to the then Prayer Book were made at the Hampton Court Conference in 1604: Gibson, Codex, vol 1, p 273, note h; E Daniel, The Prayer Book: its history, language and contents, twentieth edition (London, 1901), pp 44–45; C Hefling and C Shattuck (eds), The Oxford Guide to The Book of Common Prayer (Oxford, 2006), pp 48–49. See, especially, the Proclamation made by King James I in which the King nonetheless spoke of ‘that Duty which is the chieftest of all kingly Duties, that is, to settle the Affairs of Religion and the Service of God before our own’ (ibid). W Phillimore, Ecclesiastical Law, second edition (London, 1895), vol 1, p 746, speaks of the King's ‘assumption … which is very questionable in point of law’ that he was so empowered by these statutory provisions.
12 The difference in emphasis between these two words is clearly aimed at those clergy who did not want to give entire agreement to the Articles.
13 Gibson, Codex, vol 1, p 280, note p.
14 I have been unable to discover who made this manuscript note.
15 Hefling and Shattuck, Oxford Guide, p 73; F Proctor and W Frere, A New History of the Book of Common Prayer (London, 1962), p 645.
16 These were 3 Jac I c 1; 12 Car II c 14; 12 Car II c 30.
17 Hefling and Shattuck, Oxford Guide, p 73; Proctor and Frere, New History, p 646; B Cummings (ed), The Book of Common Prayer: The Texts of 1549, 1559 and 1662 (Oxford, 2011), pp 790–791. These services were printed together with the Book of Common Prayer until they were removed by the similar authority of a royal warrant on 17 January 1859: Proctor and Frere, New History, p 647.
18 The earliest recorded instance in the Church of England of special prayers on behalf of a new sovereign is that of Richard II in 1377: Daniel, Prayer Book, p 535.
19 For the 1640 Canons, see G Bray (ed), The Anglican Canons 1529–1947 (Woodbridge, 1998), pp 560–561. In 1661 the statute 13 Car II c 12 forbade the enforcement of these Canons.
20 Proctor and Frere, New History, p 647.
21 There is no other possible legal basis, in spite of the limits to the royal prerogative in relation to legislation set in AG v De Keyser's Royal Hotel [1920] AC 508 (see also below).
22 Despite the wording of the royal warrant and of the title of the service itself (which may be seen as ambiguous), the service's use is authorised but not compulsory.
23 ‘Special worship’ is the phrase used in Mears et al, National Prayers, vol 1, p xlvii: ‘“Special worship” is an awkward phrase, which was not used by contemporaries and for which there is no historical authority … [I]t is a phrase which embraces the full range of occasions for which the civil and religious authorities in the British Isles ordered a departure from normal religious observance. These ranged from special services, such as those for the 1563 fast [in relation to a plague epidemic] or the 2012 thanksgiving [in relation to Elizabeth II's Diamond Jubilee], to occasions when a single prayer was added to the normal daily liturgy. They also included annual religious commemorations such as the observance of the anniversary of the gunpowder plot on 5 November. Second, the phrase avoids the privileging of any of the terms used by contemporaries, whether fast and thanksgiving days, days of humiliation or intercession or national days of prayer, terms which have particular chronological associations and which often express important changes in the nature of these occasions across five centuries.’ Phillimore Ecclesiastical Law, vol 1, p 809, speaks of ‘days of special service’; Hefling and Shattuck, Oxford Guide, p 73, refer to ‘state services’ and Proctor and Frere, New History, p 646, use the term ‘special services’. These forms of worship might be a special prayer or prayers, a special service or services, a fast day or a day of thanksgiving: see Mears et al, National Prayers, vol 1, pp lv–lvi and lxii. Although the numbers must be treated conservatively, between 1533 and 2012 there were some 866 ‘particular occasions of worship and … nine annual commemorations’; such special worship included the issue of a special homily against disobedience (ibid, p lxxx).
24 Mears et al, National Prayers, vol 1, p lxi, n 10: ‘Partial exceptions occurred in the mid-nineteenth century, as ideas on ecclesiastical authority began to change’.
25 Ibid, vol 1, pp lvi–lviii; N Mears, ‘Special nationwide worship and the Book of Common Prayer in England, Wales and Ireland, 1533–1642’ in N Mears and A Ryrie, Worship and the Parish in Early Modern Britain (Farnham, 2013), pp 31–72.
26 See The Canon Law of the Church of England (London, 1947), p v. See also Mears et al, National Prayers, p lxi, n 10: ‘The grounds and expression of the crown's authority over special worship … are not entirely clear, partly because they evolved through the period [1533–1688] and partly because orders have not survived for several occasions’. On the wording of the Canons, see ibid, pp lxi–lxii; but also see what is said above in relation to Canon 72.
27 W Adam, Legal Flexibility and the Mission of the Church (Farnham, 2011), pp 51–52; see also E Stillingfleet, The Second Part of Ecclesiastical Cases (London, 1704), pp 61 ff. As to the clerical oath of allegiance, see R Bursell, ‘The clerical oath of allegiance’, (2015) 17 Ecc LJ 295–305.
28 J Johnson, A Clergyman's Vade Mecum (London, 1709), vol 2, pp 198–199.
29 Phillimore, Ecclesiastical Law, vol 1, p 810.
30 Ibid, vol 1, pp 810–812. Phillimore suggests that the prosecution may have proceeded because of the publication by Johnson of his book The Case of Occasional Days and Prayers.
31 Report of Her Majesty's Commissioners Appointed to Consider the Subscriptions, Declarations, and Oaths Required to be Made and Taken by the Clergy of the United Church of England and Ireland (London, 1865), appendix 7, para 28.
32 The appendix here cites the case of R v Sparkes (1621) Win 6; 124 ER 5.
33 D Waterland, The Case of Arian-subscription considered: and the several pleas and excuses for it particularly examined and confuted, second edition (Cambridge, 1721, reprinted by ECCO Print Editions), p 7. Referred to in Subscription and Assent to the Thirty-nine Articles, para 11.
34 G Faber, Jowett: a portrait with background (London, 1957), p 147. Article 8 of the Thirty-nine Articles reads: ‘The Three Creeds, Nicene Creed, Athanasius's Creed, and that which is called the Apostles’ Creed, ought thoroughly to be received and believed: for they may be proved by most certain warrants of Holy Scripture.’
35 O Chadwick, The Victorian Church Part II 1860–1901 (London, 1972), p 135.
36 Quoted in ibid, p 132.
37 See, eg, HM Procurator General v Stone (1808) 1 Hag Con 424; Hodgson v Oakley (1845) 1 Rob Ecc 322; Gorham v Bishop of Exeter (1849) 2 Rob Ecc 1; Re Denison (1856) 27 LTOS 300; Burder v Heath (1862) 15 Moo PCC 1; Fendall v Wilson (1862) 7 LT 474; Williams v Bishop of Salisbury (1864) 2 Moo PCCNS 375; Voysey v Noble (1871) LR 3 PC 357; Sheppard v Bennett (1871) LR 4 PC 371. See, generally, R Rodes, Law and Modernization in the Church of England (Notre Dame, IN, 1991), pp 250 ff; T Briden, Moore's Introduction to English Canon Law, fourth edition (London, 2013), p 145, n 24. It is surprising, at least to a lawyer, that in Subscription and Assent to the Thirty-nine Articles; Davie, Inheritance of Faith, pp 90–94; G Bray, The Faith We Confess: an exposition of the Thirty-nine Articles (London, 2009), appendix I; and Podmore, Aspects of Anglican Identity, ch 4, there is little discussion of the fact that the Articles have been given a legal interpretation by the courts.
38 Burder v Heath at p 45.
39 Williams v Bishop of Salisbury at 375. In applying the rules of statutory interpretation the courts were usually disposed to allow a reasonable latitude in the interpretation of the Church's formularies: 34 Halsbury's Laws of England, fifth edition (London, 2011), para 1131, n 7.
40 J Bullard, Constitutions and Canons Ecclesiastical 1604 (London, 1934), p 40.
41 Strangely, Phillimore, Ecclesiastical Law, does not give any guidance as to the meaning of the phrase ‘lawful authority’ although he comments (vol 1, p 810): ‘Some have questioned by what authority of law this solemnity [namely, the service of thanksgiving for the Sovereign's inauguration], as also the other occasional thanksgivings and fasts appointed by the king are kept. Upon which Mr Johnson observes, that it is sufficient in this case (as he thinks) that the two houses of parliament have and do own this power to be lodged in the crown, as they do by submitting to these royal commands in observing such days, and sometimes petitioning him to order these religious solemnities.’ Nevertheless, the words ‘as he thinks’ seem to distance Phillimore somewhat from Johnson's argument. Lambeth Opinions on Incense and Processional Lights of the Archbishops at Lambeth Palace (July 1899) states: ‘the only authority which can bind or authorise the clergyman to make any variation whatever from what is contained in the Book [of Common Prayer] is either an Act of Convocation, legalised when necessary by Parliament, or the order of the Crown, issued with the advice and consent of the metropolitan under the Act of 1559 or a direction of the ordinary under the Act of Uniformity Amendment Act 1872.’ Bullard, Constitutions and Canons, p 183, states: ‘Behind Canon 36, beside Convocations and Royal Letters Patent, is the authority of the Act of Royal Supremacy’. Halsbury's Laws of England, third edition (London, 1957), in the volume Ecclesiastical Law, p 328, note o, having set out the provisions of section 21 of the Act of Uniformity 1662, states: ‘In other cases not expressly provided for by the statute the jus liturgicum of the archbishops and bishops is now often invoked, but it is very doubtful whether this has any legal basis.’
42 Bullard, Constitutions and Canons, p 183.
43 ‘Exact observance of the Prayer Book is enjoined by the Act of Uniformity, and to fail to observe it is an offence not only against that statute, but against the Queen's ecclesiastical laws’: Combe v De la Bere (1881) 6 PD 157 at 173 per Lord Penzance.
44 ‘In this unmistakable manner have the canons of the Church added their sanction and authority to that of the Legislature for the strict observance of the forms prescribed by the Prayer Book, to the exclusion of all other forms not so prescribed’: Combe v De la Bere (1881) 6 PD 157 at 173 per Lord Penzance.
45 (1857) Moore's Special Report 1 at 188.
46 (1868) LR 2 PC 365 at 382–383. Surprisingly, perhaps, there were nonetheless a few exceptions. In Hutchins v Denziloe and Loveland (1792) 1 Hag Con 170 at 175–180, it was decided by Sir William Scott that by reason of liturgical practice, both ancient and at the Reformation, the singing of psalms and hymns during a service according to the Book of Common Prayer was legal. The singing of the Agnus Dei in English during the reception of the elements during Holy Communion was also held to be legal in Read v Bishop of London [1892] AC 644 at 659–661 (in effect overruling Elphinstone v Purchas (1870) LR 3 A & E 66 and Martin v Machonochie (No 2) (1874) LR 4 A & E 279). Another exception was the changing of a name at confirmation: In re Parrott, Cox v Parrott [1946] Ch 183 at 186 per Vaisey J. See, too, R Bursell, ‘Consecration, ius liturgicum and the Canons’ in N Doe, M Hill and R Ombres, English Canon Law (Cardiff, 1998), pp 71–81.
47 Podmore, Aspects of Anglican Identity, p 45, points out: ‘At the time, it was thought by some (including speakers in the parliamentary debates) that the replacement of subscription “willingly and from the heart” with “assent” somehow made the assent required only “general”. However, against this view it was held, both in 1865 and subsequently, that “in law”, “assent” must be taken to mean “complete legal acceptance”.’ See, too, Subscription and Assent to the Thirty-nine Articles, paras 1–8; Davie, Our Inheritance of Faith, p 77.
48 See R Bursell, Liturgy, Order and the Law (Oxford, 1996), pp 1, 273–274.
49 Canon Law of the Church of England, p viii.
50 This led Chancellor Garth Moore to comment in An Introduction to English Canon Law (Oxford, 1967), pp 62–63: ‘Much ink has been spilt and many words poured forth in an attempt to discover the meaning of lawful authority, and it is now clear that the meaning is elusive and that no interpretation is likely to meet with general acceptance. By far the most workable explanation is that provided by Mr Justice Vaisey. He suggests that lawful authority can be determined only by reference to the context of the occasion on which the deviation is made. Thus, at one end of the scale, the addition of prayers of thanksgiving by the whole nation for deliverance from some national catastrophe might be lawfully authorized by royal proclamation with the approval of the two archbishops; lower in the scale, prayers for the success of some diocesan venture might be lawfully authorized by the bishop of the diocese concerned; and, lower still, intercessions in respect of some sudden, local disaster (in, for example, a mining village) could be lawfully authorized by the parish priest. It is by no means universally accepted that the learned Judge's explanation is the right one.’
51 See the foreword in Canon Law of the Church of England, p v, and ibid, pp 160–161. The Clerical Subscription Act 1865 was still in force but no suggestion was made as to its amendment.
52 The proposed Canon was not to the prejudice of the episcopal right to appease diversity and resolve doubts pursuant to the Preface to the Book of Common Prayer: see Canon Law of the Church of England, p 113.
53 Ibid, pp 112–113.
54 Such as the parish priest in the example given by Chancellor Garth Moore (see above, n 50). The words ‘shall be deemed to have been, and to be’ seem in retrospect to have been an admission of defeat.
55 Mears et al, National Prayers, vol 1, pp lxii–lxiii.
56 Ibid, vol 1, p lxi. (Volumes 2 and 3 of this work, dealing with the years from 1689 to 2012, have yet to be published but the legal principle remains the same. See, however, P Williamson, ‘National days of prayer: the churches, the state and public worship in Britain, 1899–1957’, (2013) 128 English Historical Review 323–366.) The discontinuance by the episcopal authority may possibly be explained by the bishops’ bowing to the pressures of the royal prerogative.
57 Bishop of Exeter v Marshall (1868) LR 3 HL 17 at 53–54; Re St Mary's, Westwell [1968] 1 WLR 513; 34 Halsbury's Laws of England, para 9.
58 Bursell, ‘Consecration, ius liturgicum and the Canons’, p 73, n 17: ‘Consecration … provides one of the rare occasions when it is possible to demonstrate that a usage of pre-Reformation canon law has been recognized, continued and acted upon since the Reformation’. As to the legality of such services see ibid, pp 72–76. E Stopford, A Handbook of Ecclesiastical Law and Duty for the Use of the Irish Clergy (Dublin, 1861), p 291, said: ‘The use of such service is in no way contrary to the Acts of Uniformity, which have not touched the matter of consecration of churches.’ However, Phillimore, Ecclesiastical Law, vol 2, p 1390 says: ‘Consecration services therefore rest, as originally all services rested, on the authority of the bishop. It is to be supposed (in the view of the editor) that either consecration services are outside the scope of the acts of uniformity, or that bishops (notwithstanding the decision in Read v Bp. of Lincoln [1899] 14 PD 148]) are, when officiating, outside its scope. Otherwise it would be difficult to find legal warrant either for these well established services or for those of dedicating sacred vessels, or bells, or lifeboats, or colours or ships about to be launched.’ (Subsequently, however, Read v Bishop of Lincoln was affirmed on appeal: [1892] AC 644.) As to the ius liturgicum, see also 34 Halsbury's Laws of England, para 732, n 10.
59 Williamson, ‘National days of prayer’, p 330. It is necessary to bear in mind that the limits of the royal prerogative in relation to legislation were set in Attorney-General v De Keyser's Royal Hotel [1920] AC 508.
60 The Canons of the Church of England, seventh edition (London, 2012), xi.
61 By the Statute Law (Repeals Act) 1969, s 1, Sch, Part II.
62 J Simpson, ‘The new alternative services’, (1966) 80:1 The Churchman 26–33, available at <biblicalstudies.org.uk/pdf/churchman/080-01_026.pdf>, accessed 2 February 2016; Moore, Introduction to English Canon Law, p 63.
63 The Measure also repealed, inter alia, the Act of Uniformity 1548, the Act of Uniformity 1558 (in so far as previously unrepealed), the Act of Uniformity 1662 (save for ss 10 and 15) and various parts of the Clerical Subscription Act 1865, as well as the Prayer Book (Alternative and Other Services) Measure 1965.
64 Section 4 is concerned with the safeguarding of doctrine. Any provision must be ‘such as in the opinion of the General Synod is neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter’ (s 4(1)). However, ‘the final approval by the General Synod of any such Canon or regulation or form of service or amendment thereof shall conclusively determine that the Synod is of such opinion with respect to the matter approved’. Therefore, although the provision in n 2 annexed to the Common Worship service of Emergency Baptism (Common Worship: Pastoral Services, second edition (London, 2005)) in relation to ultimate salvation seems to indicate a change of doctrine from that in the Book of Common Prayer (see Bursell, Liturgy, Order and the Law, pp 131–132; N Doe, ‘Obedience to doctrine in canon law: the legal duty of intellectual assent’, (1992) 7 Denning Law Journal 23–40 at 33; 34 Halsbury's Laws of England, paras 40, n 3, and 733, n 3), s 4(1) ensures that the change of doctrine has been made even though the procedural rules of the General Synod as to such a change were apparently not adhered to.
65 Section 5(1) defined ‘Form of service’ as meaning ‘any order, service, prayer, rite or ceremony whatsoever, including the services for the ordination of priests and deacons and the consecration of bishops and the catechism or form of instruction before confirmation’.
66 These words cannot give the Crown authority to create new forms of service.
67 In re St Thomas, Pennywell [1995] Fam 50 at 62–67; In re St John the Evangelist [1995] Fam 254 at 258; Re St Nicholas, Arundel [2001] All ER (D) 382 (Jun) at 12–15; Bursell, Liturgy, Order and the Law, pp 11–13.
68 Re St Peter and St Paul, Leckhampton [1968] P 495; In re St Thomas, Pennywell at 62–65; Bursell, Liturgy, Order and the Law, p 14; 34 Halsbury's Laws of England, para 752.
69 Canon B 1, para 2. The first paragraph sets out those forms of service which are authorised and the third paragraph gives a very wide definition of the words ‘forms of service’.
70 Any such variations or forms of service must be ‘reverent and seemly and shall be neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter’: Canon B 5, para 3.
71 Podmore, Aspects of Anglican Identity, p 43, comments: ‘When representatives of the Church of England are asked in ecumenical discussions for a definition of the Church's position, it is to the Declaration of Assent and its Preface that they increasingly turn.’ He goes on to emphasis that the Declaration of Assent is ‘a defining text for the Church's identity’. See, too, the Report to the Church of England Synod by the House of Bishops entitled The Nature of Christian Belief (published April 1986) and the discussion in Doe, ‘Obedience to doctrine’, in relation to the debates in the General Synod about doctrinal offences.
72 By Amending Canons 4, 15 and 24 (promulgated 4 July 1975, 11 July 1992 and 16 November 2005 respectively). Although the form of the last amendment was approved by the General Synod in 2000, it was not formally enacted until 2005.
73 Re Christ Church, Waltham Cross [2002] Fam 51 at para 24 per Bursell Ch. See, too, Re St Thomas, Pennywell [1995] Fam 50 at 58; Davie, Our Inheritance of Faith, pp 78–79.This does not mean that there has been a change in doctrine within the Articles but, rather, that the scope of doctrine is wider than the Articles: see Re St Michael the Archangel, Warfield (2013) 16 Ecc LJ 247. In commenting on the wording of the Declaration of Assent, Bray, The Faith We Confess, pp 223–224, states: ‘By this form of words, the Church of England has been able to satisfy those who still uphold the authority and integrity of the Thirty-nine Articles (not to mention the other sources of doctrine and worship listed in the Preface) without allowing them to hold other members of the church accountable for their failure to do the same.’
74 [2013] Fam 158 at para 24. In Shergill v Kaira [2014] UKSC 33 at para 59, the Supreme Court emphasised that the court ‘may have to adjudicate upon matters of religious doctrine and practice’; a fortiori this is true in relation to Anglican ecclesiastical law, which is as much the law of the land as any other part of the law (Edes v Bishop of Oxford (1667) Vaugh 18 at 21; Mackonochie v Lord Penzance (1881) App Cas 424 at 446). See, too, The Ecclesiastical Jurisdiction Measure 1961, ss 6(1)(a), 7(1)(b), 10(1)(a), 14(1)(a); Faculty Jurisdiction Rules 2015 rr 7(3)(1), 22(2)–(4), 23(3)(a).
75 Canon B 1, para 1(a)(b).
76 See Canon B 1, para 1(c)–(f). The words ‘lawful authority’ had previously led to very many different interpretations: Canon Law of the Church of England, p v.
77 Emphasis added.
78 The words ‘form of service’ are given a wide definition by Canon B 1, para 3.
79 [1920] AC 508. Although it might be argued that this case is concerned with non-ecclesiastical matters and that the Sovereign is in a different position vis-à-vis the Church by reason of the royal supremacy (see Canon A 7), any Measure passed by the General Synod has the force and effect of an Act of Parliament once it has received the royal assent, and that in itself makes it probable that the Crown is in a similar position in both jurisdictions, at least in so far as ecclesiastical legislation is concerned: Church of England Assembly (Powers) Act 1919, s 4; Synodical Government Measure 1969, s 2(2), Sch II, para 6(a)(i). It also means, for example, that the Crown cannot (at least now) dispense from any provisions of the Book of Common Prayer which are enshrined by the Church of England (Worship and Doctrine) Measure 1974, s 1, proviso. Moreover, as a Canon made under the 1974 Measure only has ‘the same legislative force as Canons heretofore made, promulgated and executed by the Convocations of Canterbury and York’ (Synodical Government Measure 1969, 1(1)(3)(5a), Sch I, para 1, Sch II, para 6(a)(ii)) and cannot be ‘contrary or repugnant to the Royal prerogative’ (Submission of the Clergy Act 1533, ss 1, 3; Synodical Government Measure 1969, s 1(3)(b)), it is nevertheless highly improbable that the Crown would now attempt to dispense from any forms of service authorised only under Canon.
80 [1892] AC 644.
81 Canon C 15, para 1(4).
82 Canon C 15, para 1(3).
83 Canon C 15, para 1(5).
84 Canon C 15, para 2.
85 Canon C 15, para 3.
86 Clerical Disabilities Act 1870, ss 3 and 4. See ‘Crematorium funerals and parochial fees’, issued by the Legal Office of the Church of England, <https:// www.churchofengland.org/about-us/structure/churchlawlegis/guidance.aspx>, accessed 21 January 2015.
87 Canon D 2, para 5.
88 Canon E 5, para 4.
89 Canon G 2, para 3(b); Canon G 3, paras 5 and 6.
90 It must be made in each case with such adaptations as are appropriate: Canon C 15, para 1(2).
91 Canon C 15, para 3.
92 Canon C 15, para 4. In such a case the minister must make the Declaration either on the first Lord's Day on which he or she officiates in the church or one of the churches in which he or she is to serve, or, in the case of a minister instituted or licensed to serve in a guild church, in that church on such weekday as the bishop may approve.
93 Canon C 15, para 2.
94 Canon C 15, para 1(4). Any person who in pursuance of a request and commission from a bishop of any diocese in England is ordained by an overseas bishop within the meaning of the Overseas and Other Clergy (Ministry and Ordination) Measure 1967, or of a bishop in a Church not in communion with the Church of England whose orders are recognised or accepted by the Church of England, shall be deemed to be ordained by a bishop of a diocese in England and accordingly shall make the Declaration of Assent: Canon C 15, para 5.
95 Canon C 15, para 1(5). This does not apply if the clerk has been ordained on the same day and made the Declaration.
96 Canon C 15, paras 1(3), 2, 3 and 4.
97 Canon C 15, para 1(3). See Podmore, Aspects of Anglican Identity, pp 54–56.
98 Canons D 2, para 5; Canon E 5, para 4.
99 Canon G 2, para 3.
100 Canon G 3, paras 5 and 6.
101 Canon G 4, para 3.
102 As to enforcement against the laity, see 34 Halsbury's Laws of England, para 10, nn 11 and 12.
103 Doe, ‘Obedience to doctrine’, p 40 (emphasis in original). See also N Doe, The Legal Framework of the Church of England (Oxford, 1996), p 267.
104 Doe, Legal Framework, p 267. See also N Doe, Christian Law (Cambridge, 2012), pp 209 ff.
105 Ecclesiastical Jurisdiction Measure 1963, ss19(b) and 20.
106 Clergy Discipline Measure 2003 s 7(2). See also Re St Alkmund, Duffield [2002] Fam 51; Re St Michael the Archangel, Warfield (2013) 16 Ecc LJ 247. See, generally, R Bursell, ‘Turbulent priests: clerical misconduct under the Clergy Discipline Measure 2003’, (2007) 9 Ecc LJ 250–263 at 252–255. There seems to be no appreciable difference between an offence ‘involving matter of doctrine, ritual or ceremonial’ (the wording used in the 1963 Measure) and an allegation that an act or omission ‘relates to matters of doctrine, ritual or ceremonial’ (the wording of the 2003 Measure).
107 [1972] 1 All ER 1012.
108 Ibid, at 1016(g)–(h).
109 Ibid, at 1017(c)–(e).
110 See Bursell, ‘Turbulent priests’, p 254. Canon B 5, para 4, states: ‘If any question is raised concerning the observance of the provisions of this Canon it may be referred to the bishop in order that he may give such pastoral guidance, advice or directions as he may think fit, but such reference shall be without prejudice to the matter in question being made the subject matter of proceedings under the Ecclesiastical Jurisdiction Measure 1963.’ In spite of this, it is suggested that in appropriate circumstances a complaint may be laid under the 2003 Measure. This is particularly so in the example given, as the provision in Canon B 1, para 2, that ‘[the minister] shall endeavour to ensure that the worship offered glorifies God and edifies the people’ is not subject to a similar (possible) restraint.
111 34 Halsbury's Laws of England, para 1131: ‘the general effect of recent legislation has clearly been to give the clergy, among others, a greater liberty of interpretation than the law had allowed in the past with respect to the church's formularies’. It is true that only the Court of Ecclesiastical Causes Reserved and Commissions of Review are no longer bound by ‘any decisions of the Judicial Committee of the Privy Council in relation to matter of doctrine, ritual or ceremonial’ (Ecclesiastical Jurisdiction Measure 1963, ss 45(3) and 48(5)) but, in the light of so many alterations to the law upon which those cases were based, it is likely that no other court or tribunal will now be bound by them as a matter of precedent: see Re St Thomas, Pennywell [1995] Fam 50 at 70; Re St Nicholas, Arundel [2001] All ER (D) 382 (Jun).
112 Canon C 15, para 1(6). Although an archbishop is not specifically mentioned, and in spite of the legal maxim expressio unius est excusio alterius (‘the expression of one thing excludes all others’), it is inconceivable that an archbishop is not on this occasion embraced within the word ‘bishop’.
113 In Pilling v Whiston (1714) 1 Hag Con 433 n, a suit was promoted for heresy in publishing doctrines contrary to the Articles of Religion; the Elizabethan statute was not mentioned. After a number of procedural actions it was decided that the case might proceed. However, the suit was dropped after there had been full arguments on the merits. In Williams v Bishop of Salisbury the defendant was prosecuted for publishing heretical doctrines in contravention of the Thirty-nine Articles.