Legal Confusion (1)

The liturgy imposed by the Reformation state on the Church of England was embodied in statute and interpreted by the organs of the Crown. In 1868 the Judicial Committee of the Privy Council adjudged that " It is not open to a Minister of the Church, or even to their Lordships in advising Her Majesty as the hightest Ecclesiastical Tribunal of Appeal, to draw a distinction, in acts which are a departure from or violation of the Rubric, between those which are important and those which are trivial". Thus a legal straightjacket was deemed to exist unlike any which had ever existed in Catholic liturgical tradition. Before the invention of printing, in Gregory Dix's words, "broadly speaking, the sanction in liturgy was not 'law' but 'custom'."

But - you cry - especially those of you schooled by Fr Zed to Say the Black and Do the Red - what about the minute regulation clamped upon the Roman Communion by S Pius V? Was this not another Law of Medes and Persians?

No. Although the Counter-Reformation church was a tighter ship than the craft which had cheerfully navigated the preceding fifteen liturgical centuries, it didn't operate like the English Privy Council. As J O'Connell put it in 1940, "Even usage contra legem can obtain the force of custom, even against the rubrics ... the Sacred Congregation of Rites has never declared that no usage which is contrary to the rubrics may ever become a custom ... and from time to time it has not only tolerated usages contra or praeter legem, but has approved them, and sometimes even ordered them to be observed."

In the Church of England, the clergy of the Catholic Revival cheerfully operated on such principles and, by the second and third decades fo the 20th Century, a whole gamut of customs had been nurtured which went beyond (praeter) or contrary (contra) to the statute law. Bishops and Crown lawyers tried to do something about this. But what hindered them at every turn was the fact that it was not only Catholics who disregarded the law, but everybody else too. Evangelicals ignored what they saw as relics of popery surviving in the Prayer Book, and middle-of-the-road men interfered pragmatically and pastorally with the strict letter of the law.

Things got worse after 1928, Parliament turned down a new draft Prayer Book - and the Bishops promptly said that they would tolerate the use of it, thus conniving in the use of a rite which, in 'Establishment' legality, had no more authority than the Liturgy of S John Chrysostom. The 'authorities' would have liked to turn a blind eye to 'sensible' flexibility while exterminating 'Romish' illegalities ... but the illogicality and unfairness of attempts to do this were glaringly apparent. (Concludes tomorrow)