Project Canterbury

Fasting Communion:
How Binding in England by the Canons.

By the Rev. Hollingworth Tully Kingdon, M.A.

Assistant Curate of S. Andrew’s, Wells-Street;
Late Vice-Principal of Salisbury Theological College.

London: James Parker and Co., 1873.
Transcribed by Mary Brownrigg, 2003.

To the Reverend Benjamin Webb, M.A., F.S.A.,
Vicar of S. Andrews, Wells-Street.

My Dear Vicar,

I should be sorry to do or say anything in public which I thought would be out of sympathy with your wishes; partly because of my ordination vow to obey my “chief minister” partly because I value your sympathy.

For nearly thirty years your name has been with me a household word. I heard of you at school, I heard of you at home, I was reminded of you abroad. It has been an exquisite satisfaction to me to have been working under you now for three years and a-half, benefiting by your example, your learning, and your counsel.

I thank you for allowing me to dedicate this pamphlet to you, without committing you to any of the statements made, or opinions advanced. I hope that your critical eye, when it sees the faults of rapid and interrupted writing, will glide over them with pity, knowing, as you do, how much work we have to do, though you take the lion’s share yourself.

I remain, yours obediently,

H. TULLY KINGDON.

CONTENTS.

INTRODUCTION

CHAPTER I. HOW CANON LAW BINDS.

SECT. I.—Difference between Canons

SECT. II.—Canons, how binding

SECT. III.—Disuser abrogates Canon Law

CHAPTER II. APPLICATION OF THE FOREGOING REMARKS TO THE QUESTION OF FASTING COMMUNION.

SECT. I.—Foreign and Domestic Canons generally quoted.

SECT. II.—The Canon of Constance

SECT. III.—Interpretation of Canons .

SECT. IV.—Inconveniency of private Selection of Rules to be enforced

SECT. V.—The Fast before the Jewish Passover

SECT. VI.—The Authority of Individual Fathers

SECT. VII.—The Fast after Communion

CHAPTER III. THE ADVISABILITY OF FASTING COMMUNION

INTRODUCTION.

A FEW years ago a Jesuit father, English by birth and education, was conducting a retreat for priests in the north of France. One day, at the time of recreation, the parish priest called on his brethren to sympathize with him in his satisfaction at having that day communicated two men. The English priest was astonished; “What, only two!” and the answer was, “I have never seen such a sight before, during the twenty years that I have been here as Curé.”

This seems shocking to us to hear of now; but it was probably the state of things in England just before the Reformation, which the Church then struggled to amend. Biel[1] says that a layman is only bound to communicate once a-year, and that not by our Lord’s own command, but by the law of the Church. He does not accept our Lord’s words as a law, being constrained by the denial of the cup to the laity to expound spiritually the command, “Except ye eat the Flesh of the Son of man, and drink His Blood, ye have no life in you.”

It is much to be feared that the action of those priests in the Church of England, who are spoken of on all sides as insisting on fasting Communion as a necessity, even (as it is said) under pain of committing a mortal sin, will (if not checked) issue in some such neglect of communicating as was the rule before the Reformation, and is the rule in some foreign countries now. If it be true that some of these rigorist priests have refused to communicate invalids, because the medical man had directed food to be taken every two hours, and have distressed devout aged persons by saying they were committing a mortal sin by supporting their enfeebled nature with a little food before communicating,—if this be true, it is clearly advisable that some enquiry should be made into the grounds of this teaching.

Now there are three grounds taken up by those who are said to be teaching thus. The first is, greater reverence ‘to the Sacrament; the second is, the obligation of canons of the Church; and the third is, the assimilation of our rule to that of other Churches. The main object of this pamphlet is to enquire into the obligation of canons on this subject; but perhaps a little may be said, by way of introduction, and in the course of the enquiry, on the other two heads.

With respect to greater reverence to the Sacrament. All physical and physiological questions should be out of question here, for all men are not constituted alike, and all men have not the same ideas of reverence. It may please some to argue that, because digestion goes on much more rapidly when the work of day in brain or body is proceeding than during sleep, therefore a man is really more fasting at 12 o’clock in the day after a light breakfast, than he would be at six in the morning after a heavy supper. But this convinces no one who feels bound by the technical law that a man who is to celebrate or communicate must be fasting from the middle of the preceding night. For such a man would feel at liberty to celebrate or communicate soon after midnight, though he supped a short time before: since, as Merati observes in his notes on Gavanti,[2] “Strictly speaking, there is nothing to hinder a priest from celebrating on Christmas night, though he have eaten just before midnight.” Then, again, English ideas of reverence are at present different from those of foreigners. Foreign canonists[3] say that neither snuff, nor smoking, nor chewing tobacco, break the fast of the priest about to celebrate; whereas to wash out the mouth, or to suck an aromatic capsule to remove the adventitious stench, would be forbidden. Indeed, if a priest feels it necessary to wash his face before celebrating, he must carefully keep his lips shut, lest any water should enter his mouth and mix with his saliva. To English minds, or, at all events, to English senses, there is a perception of lack of reverence in the odour of tobacco being breathed in the face of fasting communicants; and it might be thought that acquired foulness of breath should be avoided as much as anything else. It might almost be said that real piety must be at a low ebb, when reverence must depend upon the dicta of physiological professors.

But, apart from this, ideas of reverence are very various; and if it be thought at one time that it is necessary, out of reverence to the Sacrament, to receive fasting, it was thought at another, equally necessary to receive, on Maundy Thursday at least, after a banquet or Maundy.[4] This was the custom in North Africa, and was the subject of many canons of councils. Nay, St. Augustine was much perplexed in mind, as it would seem, for he has expressed himself on the subject, in language which is certainly rather obscure, and which has been rendered as obscurely into English. He had been asked about that custom of the African Church which required a banquet or Maundy on Maundy Thursday, immediately before the celebration of the Eucharist. In A.D. 397, some two years after St. Augustine had been consecrated bishop, the third Council of Carthage had adopted this custom; and in A.D. 400 he writes to Januarius on the point. He sums up his views thus:—[5]

“Honestius autem arbitror ea hora fieri, ut qui etiam jejunaverit, post refectionem, quse horâ nonâ fit, ad oblationem possit occurrere. Quapropter neminem cogimus ante Dominicam illam cœnam prandere, sed nulli etiam contradicere audemus.”

There is some little difficulty about the first clause of this passage, which is thus rendered by Mr. Cunningham, M.A.:—

“I think that, in this case, it would be more seemly to have it celebrated at such an hour as would leave it in the power of any who have fasted to attend the service before the repast which is customary at the ninth hour.” [Mr. Cunningham reads ante instead of post, on authority of seven MSS.][6]

Here is a curious paraphrase from Mr. Blunt’s “Theological Dictionary:”—

“But I think it is better to observe the hour (!), and to remain fasting until after the refection, which takes place at 3 o’clock, before coming to the oblation.”[7]

This seems unlikely to have been St. Augustine’s meaning, as he might have expressed it with greater distinctness. The simple rendering seems most probable. St. Augustine was pressed by the Council of Carthage, which recognised the Maundy[8] as the anniversary of the day of institution of the Sacrament; he was also pressed, on the other hand, by the strictness of the Lenten fast, as laid down in the Apostolic Canons.[9] He may also have had in his mind the fiftieth canon of Co. Laodicea, dr. A.D. 372, which insists that the fast of Lent shall not be broken on Maundy Thursday, as this would be “to dishonour the whole Lent,” i.e. to deprive the Lenten fast of its whole merit. Therefore, it would seem, St. Augustine strikes out a middle line. True, (he says,) it is the custom of North Africa to communicate after a Maundy on this day: it would be better then to have the celebration of the anniversary of the institution after 3 o’clock;[10] then the Maundy can take the place of the usual refection at this hour, and a man may attend the oblation, and, by keeping from food till 3 o’clock, he will not break the merit of the Lenten fast. This will probably make the place clearer, and certainly give better sense, and good grammar:—

“But I think it would be more seemly to celebrate it at such an hour, that a man, who has also kept his fast, may attend the oblation after the refection, which takes place at 3 o’clock. On which account we compel no one to dine before that Lord’s Supper, neither dare we say he may not.”

From this passage, then, we can see that St. Augustine probably thought more of the binding character of the Lenten fast than of the fast before Communion. And this seems borne out by the twenty-ninth canon of the Quinisext Council, (A.D. 692,) which is of great historical interest, but of no binding force, as it was never received except in the Patriarchate of Constantinople.

“The Canon of them at Carthage declares, that the [mysteries] of the Holy Altar are not to be celebrated except by fasting men, excepting one day in the year, whereon the Lord’s Supper [viz., the yearly commemoration of the Institution of the blessed Sacrament] is celebrated, perhaps at that time from certain local reasons profitable to the Church, those holy fathers using such an observance; since then nothing induces us to leave our strictness, following the traditions of the Apostles and Fathers, we decree, that it is unlawful to relax the Thursday of the last week in Lent, and to dishonour the whole Lent.”

Here it is most clear that what weighed with the fathers of the council was the strictness of the Quadragesimal Fast, and not the fasting Communion. Hence, in the question of reverence, they would attach more importance to the reverence due to Lent and the Apostolic Canon, than to the custom of receiving fasting.

It must further be remembered, that in our northern climate there is a greater demand upon the resources of the body for heat than in southern climates; and often distress of body in those who are not quite hardy and strong prevents what is of chief importance,—reverence of mind. So that if real reverence be desired, many are compelled to obviate extreme distraction and anxiety by some slight partaking of food. For it is clear that if our service of God is to be rational and spiritual, and not merely bodily and external, then reverence of reason and spirit must prevail over mere reverence of body, unless there is some definite command of God or man compelling the conscience to the contrary. Now all agree that there is no Divine command binding the conscience to fasting Communion; almost all agree that there is a Divine command to receive Communion, and all must agree that there is a Divine command to worship, especially in spirit and in truth. It follows, that recollectedness of mind, and devout reverence of spirit, must be of more importance than accidental disposition of body.

Therefore, without discussing the material questions of physiology (which, though shocking to some, may be useful for others) about the action of the saliva in the mastication of the element, or the period of duration of digestion, it may be concluded that if the feeble, or aged, or sick, find their minds distressed by a fasting body, they do not otherwise than well in taking some small portion of food to quiet the distress of body. For, as Mr. Poyntz has well said, “The highest reverence that can be paid is that It should be received by a devout and earnest Christian.”[11] Anything that disturbs devotion and earnestness detracts from due reverence.

The third ground relied on is the necessity of assimilating our rule to that of other Churches, with especial view to future union. May God in His mercy grant that union, which all Christians must long for! It may be doubted whether any course of action which is likely to hinder many from the “Sacrament of union” in England would be likely to forward union. The extreme rigour of fasting Communion has been variously relaxed in various places. The communicating after a Maundy hindered not the union of North Africa with Rome and Constantinople.[12] The refusal of the Mechlin and Roman Rituals to allow Communion to the sick who had broken fast, except by way of Viaticum to the moribund,[13] hindered not union with Cambray, where the Manuale allowed the sick, who cannot remain fasting, to communicate often in the same illness. Is it possible to suppose that Pope Leo III., an old man, could have habitually performed his seven or nine masses a-day[14] without some portion of food taken before some of them? Must we suppose that children going to or coming from school were absolutely fasting when they were taken into church to consume the remains of the consecrated elements, as was done at Constantinople and at Macon?[15] or, if it be argued that Christian children might have been fasting, was the Hebrew child fasting to whom a portion was given, as recorded by Evagrius?[16]

But the giving the Cup to the laity, pronounced a heresy by the Council of Constance, is quite as likely to hinder union in the West as the relaxation of the rule of fasting Communion; for those who are not able to communicate fasting have not yet been called heretics openly.[17] It may not be well to give up much in prospect of problematical success.

With excellent intention, Mr. Poyntz[18] has learnedly argued that it is within the power of each diocesan bishop to grant a dispensation from this fast, which, therefore, should be sought at his hands. If the argument of this pamphlet is correct, there is no law binding in England to require this, and so no English diocesan bishop would grant a dispensation, if asked to do so. If we accept the dicta of foreign canonists as our own, and say, for the sake of some nearer prospect of union, that the law of fasting Communion is binding in England, then the suggestion of Mr. Poyntz does not help us. For he seems to have overlooked, or ignored the fact, that the same extern authorities say that none but the Pope himself can grant the dispensation.[19] True it is that Charles V. never received fasting, but he had a running dispensation from Pope Julius III.

When the arrogant pride of the exclusive Ultramontane is lowered so as to render union possible, it will not be impossible to lessen any difficulty on this score by insisting that the infirm shall receive a dispensation. Until this blessed consummation be arrived at, it may be doubted whether a sudden attempt at rigour may not do more harm than good. Violent language about “mortal sin” is too easily used; it may attract attention to subjects too long neglected, but it often wounds earnest Christians, shocks those who are growing in the faith, and imperils the health of souls. It is, therefore, earnestly to be deprecated.

We must now try to see what is the law of the Church.

CHAPTER I.

HOW CANON LAW BINDS.

SECTION I.—Difference between Canons.

THE authority of the Church to make laws, and to enforce them upon those within her pale, depends upon the commission of our Lord to the first rulers of the Church. There must exist within every society some power to make rules for its well-being and guidance. In the Church this power was first conveyed to St. Peter, and then to all the Apostles by the Lord Himself:[20] the same power was afterwards declared by the Church (under the guidance of the Holy Spirit) to have descended to the successors of the Apostles, the Bishops. “I will give thee the keys of the kingdom of heaven, and whatsoever thou shalt bind on earth shall be bound in heaven, and whatsoever thou shalt loose on earth shall be loosed in heaven,” is the commission to St. Peter: then to all the Apostles, “Whatsoever ye shall bind on earth shall be bound in heaven, and whatsoever ye shall loose on earth shall be loosed in heaven.” This power, thus delegated, would include that which was afterwards specially conveyed, viz. the power of remitting and retaining sins; but now there was the further power of legislation and government.

That this power was thus understood at the time to be conveyed would appear from the words used by our Lord to St. Peter. For here, as elsewhere, the Lord accepts a custom or formula in common use, and incorporates it into His own institution. He commonly adapted to His own use what He found ready to hand in the existing Jewish commonwealth, which had been no doubt divinely guided to adopt that which afterwards would prove useful in the Gospel kingdom. He appoints chief disciples under Him to be His constant attendants; they are twelve in number, according to the number of the twelve tribes. He calls them Apostles; a name well-known amongst the Jews, as borne by those messengers who were sent to collect the taxes and voluntary offerings of the dispersion to the temple worship. Later on, He appoints others under the twelve; these are seventy in number, according to the number of the council that assisted Moses. He gives a prayer; there is but one clause new. He appoints Sacraments; Baptism was then at all events well known, just after St. John the Baptist; the Holy Eucharist is allowed on all hands to be the adaptation of some ceremony in common use. One while, He takes a parable from the Rabbis, and sublimates it to His own use; another while, He takes the well-known formula or proverb, and vivifies and quickens it to bear a deep spiritual meaning. If He gives a form of benediction to His ministers, it is the common form of blessing amongst His countrymen, “Peace be with you;” but it is made instinct with quickening grace. If He preaches a sermon, He takes as His text some custom or precept of His own time. Thus was the Church built on the ruins of the synagogue, though the glory of the latter house was to be far greater than that of the former.

Here, then, in this particular of giving power of internal legislation binding on the conscience of Christians, the Lord adopted a well-known formula amongst the Jews. When one was appointed Rabbi, which was the highest academical degree, there was given him a key to denote that then was given him the power of opening the law by authoritative exposition, and of locking up or releasing the consciences of men. At the same time, we are told,[21] there was said: “We give thee power to bind and to loose;” that is, they had power given them to decide in matters of casuistry what was binding and what was not. These decisions became gradually incorporated in books of decrees, and answered very much to the canons, as the Talmud would answer to the Decretum of Gratian. In these words, then, probably the power of making canons was conveyed to the Church; first, to St. Peter alone, and then to all the Apostles.

This power was exercised by the Apostles. The first council or synod at which they met to issue such decisions, was that recorded in Acts xv.; where many Apostles were assembled, and St. James, as Bishop of Jerusalem, presided and summed-up. At this council certain canons were decided upon; and succeeding councils or synods seem to have followed the example of this first synod at Jerusalem. They were summoned to meet some pressing need, or to decide some urgent question, and they issued such canons as seemed requisite to the occasion.

But, first of all, there has ever been a distinction between councils; some are esteemed (I.) general, and some, (II.) special, or particular.

(I.) General Councils.

The definition of a general council depends upon the views of the one who defines. If he be an ultramontane, he has his own peculiar definition; if he be a cismontane, his definition is different. So, too, the number of general councils varies: but the whole Church is agreed to acknowledge four at least, or six according to some. This is much the same, as the fifth and sixth did practically little more than confirm the canons of the preceding four. It may be convenient to name them:—

1. Council of Nicaea, A.D. 325.
2. Council of Constantinople, I., A.D. 381.
3. Council of Ephesus, A.D. 431.
4. Council of Chalcedon, A.D. 451.
5. Council of Constantinople, II., A.D. 553.
6. Council of Constantinople, III., A.D. 680.

Now if we take the common cismontane, or Gallican definition of a general council, viz.: one (I.) that was general or universal in convoking; (2.) that was free in deliberation; (3.) that has been generally or universally received, it will be seen that the determinations of such councils are to be received with the utmost respect. II. Particular or Special Councils.

These have ever been subdivided by canonists into three classes: I. National, including all bishops within a nation or realm. 2. Provincial, including all the bishops in a province, with a metropolitan at their head. 3. Diocesan; a bishop may sit in synod with his chapter.

Particular or local councils may make canons to bind within the limits of their authority. Thus with us, “The Lord Chancellor and the then chief judges declared that by the common law of England, every bishop in his diocese, and the archbishops in convocation, may make canons to bind within the limits of their jurisdiction.”[22]

Sometimes, by general acceptance, the canons of a small provincial council may become binding even further than the canons of a general council.

But as the authority for making canons varies, so also the canons themselves vary. There are canons of faith and canons of discipline.[23] Canons of faith can never vary or become obsolete, because the faith is one and indivisible, at all times and in all places. Directly, therefore, a council defines an article of faith, that article or canon is at once binding within the limits of the jurisdiction of the council. For a local or particular council may define an article of faith, subject to the revision of a general council: and as a matter of fact, the Nicene faith was affirmed at several local councils before it was universally declared in the first general council.

It is not so with a canon of discipline. Discipline may and does vary with the times, and with places; so that canons of discipline passed by a general council need not bind everywhere,[24] nor need they bind the conscience at all times: for the manners of different places vary, and so also the manners of different times; and variation of manners would require variation of discipline.

SECTION II.—Canons, how binding.

The Church, then, has power to draw up canons binding on the conscience of its members. This is true, as we have seen, as well of a bishop in his diocese, as of an archbishop (or metropolitan) in his province, and of the whole Catholic Church in a general council. Of such canons so drawn up, canons of faith are at once binding upon all who owe obedience to the council, particular or general:[25] but canons of discipline are not so binding.

We must now confine ourselves to the canons of discipline, and see how these bind the conscience. But first let us remark how, in apostolic times, this distinction was observed.

The first epistle to the Corinthians is most instructive on this head. It is in a great measure an inspired answer to certain questions of conscience, which had been submitted to the Apostle by the Church at Corinth. Some of these questions were questions of faith, some were questions of discipline. It is, then, interesting and profitable to observe how the Apostle deals with these.

First, then, with questions of faith. Some had been denying the resurrection of the dead; and the Apostle has to meet this denial. On this point he clearly and unequivocally lays down the faith as once for all delivered to the saints; he shews that this had been sufficiently declared to them, that they had received it, and that it was necessary to their salvation: “Moreover, brethren, I declare unto you the Gospel which I preached unto you, which also ye have received, and wherein ye stand: by which also ye are saved, if ye keep in memory what I preached unto you, unless ye have believed in vain.” He then goes on to quote the canon of faith, which seemingly formed part of the Apostolic Creed as framed and delivered by the Apostles: “For I delivered unto you first of all that which I also received, how that Christ died for our sins according to the Scriptures, and that He was buried, and that He rose again the third day according to the Scriptures.” Then, and not till then, the Apostle proceeds to argument, not as if there were two possible views, either of which might be accepted without sin, but insisting on the fact that there is but one way—the acceptance of the faith; though, out of condescension to their weakness, he argues for the doctrine, putting aside the objections of opponents. Then he ends with a glorious statement of the faith, crowning all with a stirring peroration.[26]

How different is his manner with a question of discipline! Let us choose out one which presents the most striking features. The Corinthians had asked about the lawfulness of eating meats which had been offered in sacrifice unto idols. Now this was one of the matters which had occupied the attention of the Apostles, who had been gathered at Jerusalem to decide on the whole question of the admission of the Gentiles to the Church of Christ. St. Paul himself had been present at this council; he had been himself sent back to Antioch with the authentic and autograph letter of the council; he therefore knew its canons and decrees perfectly well; indeed, in his progress “throughout Syria and Cilicia,” “as they went through the cities they delivered them the decrees for to keep, that were ordained of the Apostles and Elders which were at Jerusalem.” We should therefore expect that the Apostle’s answer would be short and decisive, and somewhat of this kind:—”This is a question which has been decided in a general council of the Apostles and Elders at Jerusalem, and you must therefore abstain from eating such meats under pain of mortal sin.” At all events, this would be the decision of some amongst us now. But what is his real reply? He deals with the question as perfectly open, and to be decided chiefly, if not entirely, by the law of charity, which avoids giving offence to the weaker brethren. There is no allusion whatever, however distant, to the canons of discipline issued by his own means from Jerusalem; at the outset, he lays down the duty of humility and charity: “We know that we all have knowledge: knowledge puffeth up, but charity edifieth.” The Apostle then goes on to argue that an idol is a nonentity, and therefore there cannot be any inherent evil in eating that which has been offered to an idol; and in conclusion he gives his decision in three rules, which embody the laws of charity and common sense. His three rules are these:—I. Buy what is sold publicly in market, and don’t ask any questions as to where it came from; for it is sufficiently consecrated to your use by being part of the fulness of the earth, which is the creation and property of your Lord. 2. If you are invited to dine with a heathen, go if you like; and when there eat all that is set before you without hesitation, asking no questions. 3. If, however, some one says that you are eating an idol-sacrifice, you had better refrain for his sake, not for your own conscience’ sake, which would not be touched.

Here, then, is a private matter which affected only the individual conscience; the Apostle lays down that it is indifferent whether or no a Christian man eats of meat consecrated to an idol, though this practice ‘had been condemned in a council of Apostles. When, however, the act became a scandal to others, the Apostle earnestly deprecated it. Just as, in another matter of discipline affecting public scandal, he speaks with peremptory utterance:—“If any man seem to be contentious, we have no such custom, neither the Churches of God.”

Having thus seen how St. Paul deals with canons of discipline, let us go on to consider what vigour they have since been held to obtain, and how they bind the conscience.

Here, again, we must first remember that canons of discipline have been distinguished into those that enforce divine law, and those which only declare human law.

Each of these classes has been again subdivided, and we have, I. divine law natural, and 2. divine law positive.

I. Divine law natural is invariable and immutable. It is the light of reason (properly illuminated) about those things which we owe to God and man. The Ten Commandments are an abridgement of this divine law, and all the moral precepts of the Old Testament are only explanations of the same. The summary of natural law is declared by our Lord to be the essence of the precepts of the Old Testament: “Whatsoever ye would that men should do unto you, even so do unto them: for this is the law and the prophets.”

2. Divine law positive can change and has changed. We find it in the Old and New Testament, and in the traditions of the Church from Apostolic times which explain the New Testament.

Human law is subdivided into, I. written, and 2. unwritten. I. Written human law of the Church is contained in those commonly called canons or constitutions; and 2. unwritten human law is called custom.

Now some canons of discipline contain natural law, and these, so far as they contain this, are always binding;[27] but where they contain positive human law they are not binding any where, until they have been promulged and accepted.[28] This is true of canons of discipline of general councils as well as of particular councils. It is but following the Apostolic rule. St. Paul had received a letter of canons from Jerusalem to the Churches of Syria and Cilicia, in answer to their appeal for a decision on a matter of deep importance; as he went throughout these provinces he “gave them the decrees for to keep, that were ordained of the Apostles and Elders which were at Jerusalem.” But these canons had not been promulged in Corinth, therefore the Apostle does not seem to have regarded them as binding there, nor does he refer to them at all.

The same method has ever been observed. Thus, after the first General Council of Nicaea, letters were written to the bishops who were not at the council, with a copy of the canons. Similarly, also, after the Council of Ephesus a circular letter was written to all the bishops who were not present, that they might make the canons known.[29]

The minister of publication, then, is the bishop, the successor of the Apostles in his diocese. As Pope Leo IV. wrote to the bishops of Britain: “Since in the holy councils rules have been promulged and received by bishops, who besides bishops have power to be publishers of the decrees of the canons?”

Some persons have thought that a Church is bound by the decrees of a council, if representatives of the Church were there. But this has never been allowed Jay good canonists, and, indeed, it has never obtained. The British Church was represented by three bishops at the Council of Aries, in 314 A.D.; yet the canons of that council about Easter never seem to have obtained in Britain, in consequence of such representation; nor did the Church in our land keep Easter as the rest of the Western Church did, until St. Augustine of Canterbury promulged this canon of discipline for the Christians of his obedience in the seventh century. It is, therefore, of no more than historical interest to us to learn that representatives of the English Church were present at the Synod of Dort, and that one of our bishops preached the opening sermon.

First, then, for the binding of canons of discipline on the conscience, canons of discipline must be promulged and accepted in the various provinces and dioceses.

It is, then, clearly open to particular Churches to refuse to accept certain canons of discipline.[30] Thus the Church of England refused to accept the foreign canons about marriage. When the papal legate endeavoured to impose them, there was the now proverbial cry, “Nolumus leges Angliæ mutari;” so it has often, in some cases, been doubted whether certain canons were ever received in England.

To give a most remarkable and noteworthy example of this. The disciplinary canons of Trent were not considered as binding in England by the Roman Catholics resident in our midst. Why is this? Because they were never promulged and accepted, therefore they had no binding force.[31] And from this follows one of the most striking proofs that the Roman Catholics do not represent the old Church of England; for they distinctly lack identity of law. When the missioners trained in foreign seminaries came over to England, at the end of Elizabeth’s reign and the beginning of the reign of James I., they probably knew nothing of, and cared less for, the law of the Church of England. So, in one noteworthy particular at least, they introduced the law they knew best. The canons of Trent had never been imposed in England, so these they brought not (except where they suited their convenience, seemingly), but they introduced the old foreign canon law existing on the continent before the Council of Trent. No doubt they thought this was the old English law, or ought to have been, if it was not. To take this noteworthy particular,

The law of the Church of England as to a valid marriage has never altered. This was declared plainly and distinctly in the judgment of the higher Court of Appeal in 1843.[32] The Church of England has always required that it is necessary to a valid marriage that it should be, (i.) per verba de præsenti, by mutual contract; (ii.) in facie ecclesiæ, “in the face of this congregation;” (iii.) per presbyterum sacris ordinibus constitutum, in the presence of a priest in holy orders. This old law of the Church of England is still asserted in the rubrics of our marriage service. But this is not the law of the “Roman obedience” in England; they hold pretty much the same law as that of Scotland, which does not require the presence of a priest.[33] Hence the great efforts made in mixed marriages, to prevent the marriage ceremony from being performed first in an English church. This would be a valid Sacrament in their eyes, that it should be per verba depræsenti being all that is required; another service would be a sacrilegious iteration of the Sacrament. This law, that consent made Holy Matrimony, was never accepted in the English Church; hence the Roman Catholics in England have no legal identity with the ancient Ecclesia Anglicana.

Canon law, then, to be binding on the conscience, must have been promulged and accepted. What, then, are the disciplinary canons of Carthage or of Constance to us? Absolutely nothing more than historical documents of no small interest, unless it can be shewn that they have been promulged and enforced in England: and then they do not bind by their having been passed at this or that foreign council, but by their acceptance amongst us.

SECTION III.—Disuser abrogates Canon Law.

Canons of discipline must then be published, that they may have binding force: but still more for this binding force to continue, they must be continually enforced, or “put in use;” they must be enjoined constantly, so that it may be known that they are binding.

This is the reason why councils so constantly repeat the same canons over and over again. It must astonish those who are commencing to read the canons, to find how constantly councils seem to repeat what has been said before, to the same effect if not in the same words. The canon had been either badly kept, “male observatus,” or abrogated by disuser, “abrogatus per non usum;” therefore it required to be re-enacted.

If, therefore, we want to know what is binding, we must find out what is being enforced. “Pour connoître les Lois et les coutumes qui sont en vigueur, il faut voir celles qui sont le plus constamment suivies dans les jugements,” is the rule given by Fleury, the great ecclesiastical historian: and again,—“Et généralement, on n’est point obligé d’observer les Lois écrites, qui demeurent notoirement sans exécution.”[34]

This, no doubt, is the reason of the answer given by Abp. Sumner to a priest who was in doubt about the force of canons, an answer said to have been acquiesced in by the late Bp. Philpotts of Exeter. The decision was, that the rubrics were binding on the conscience, but that canons were only binding when enforced by the bishop. Whether this had respect to the fact that the rubrics had become statute law or not, does not matter; the same distinction will apply in either case. For when canon law becomes incorporated in rubrics, it becomes continually binding, as being constantly enforced in the book which priests are bound to use continually. Hence the “rubricæ generales” of the missals, and the “cautelæ,” which incorporate the general canons and rules affecting the celebration and reception of the Sacrament of the Altar, bind those who belong to Churches which use the unreformed office books. These canons, by being thus continually enforced, are binding on the users of the book; so that that which is therein contained becomes really binding, more by being in the rubrics than by being in the canons.

In similar manner, other canons are continually enforced by the proper officer, the bishop, at his visitation. This is the very end and object of the visitation, that the bishop may see that such canons as are in force are observed, and that he may punish the offender against them. Hence articles of visitation, and enquiries to which the clergy and churchwardens have to make answer. If these things fall into desuetude, on the conscience of the bishops be it; they are directly responsible to the Great Head of the Church for their conduct.

It was for this that the earlier councils used to number on their canons from the canons passed at preceding councils. Thus, the first canon of the Council of Ancyra would be numbered “twenty-one” in the code of canons received and enforced, since there were twenty canons passed at the Council of Nicaea; and by this numbering the council recognised and re-enforced all the twenty canons. Thus the Council of Chalcedon quoted the ninety-fifth canon of Antioch, which council only issued sixteen new canons; but when the twenty canons of Nicæa, the twenty-five of Ancyra, the fourteen of Neocæsarea, the twenty of Gangra, and the sixteen of Antioch are all added together, the number ninety-five is arrived at, and we find the canon quoted at Chalcedon.[35] Thus the canons of preceding councils were at each council again accepted as binding.

But as time went on and canons were multiplied, there was a kind of digest of canons made to be read at the opening of a council, that the council might see what had been already ordained, and either accept all that had been so published, or such parts of them as seemed good. The digest written by the great Durandus,[36] and read at the Council of Vienna, was printed in 1545, in case the Council of Trent might find it useful. In this the renowned Juris Speculator points out the advisability or propriety of re-enacting certain ancient canons as if they had lost force, though they were in Gratian’s Decretum: in other cases he suggests some for discussion, e.g., “Hoc in plerisque mundi partibus non servatur, pensandum est an expediret servari.”

From a similar cause, too, canons have been constantly codified and reduced to order, that they might the more easily be known and enforced. Thus, in the African code, we find the canons of various councils reduced to method, and re-enacted. Nor can there be much doubt that when the book of canons was drawn at London in 1603-4, that book was intended to be for the Church of England what the “Codex Ecclesiæ Africanæ” was to the Church of North Africa, viz., the book containing all the canons then binding on the English Church; for there is very little new in them. They merely incorporate and re-enact old canons. That this was intended seems probable, to say the least, from the fact that the visitation articles of the bishops[37] directly after the passing the code, do not travel much beyond the lines laid down in the canons, or rubrics.

The following passage from a good English canonist, Bp. Stillingfleet, is so much to the purpose, that it is cited at length.[38]

“There are some canons, where the general disuse in matters of no great consequence to the good of the Church or the rights of other persons may abate the force of the obligation; especially when the disuse hath been connived at, and not brought into articles of visitation, as Can. 74, about gowns with standing collars, and cloaks with sleeves. But the general reason continues in force, viz., that there should be a decent and comely habit for the clergy, whereby these should be known and distinguished by the people; and for this the ancient custom of the Church is alledged. . . If we do strictly oblige persons to observe all ecclesiastical canons made by lawful authority, we run down into endless scruples and perplexities; and Gerson himself grants that many canons of general councils have lost their force by disuse, and that the observation of them now would be useless and impossible.”

But it will naturally be asked how long must disuse prevail, and how widely, to remove binding force from a canon? Here Gibert, the French canonist, shall give us answer.[39] He says:—

“Abrogated canons have lost the force of law, because the superior consented to their disuse, which has prevailed for more than forty years without disturbance or interruption.”

In similar manner he points out how a contrary custom abrogates canon law.[40]

“That a canon should be abrogated by contrary usage, there are required but three points:—I. That the usage should be reasonable, that is, not adverse to good morals. 2. That it should be lawfully pleaded, that is, that it should obtain for forty years without the protest of the Church. 3. That it should be general, that is, in the Universal Church, if the question is of universal abrogation; or in the nation, if of national disuser; or in the whole province or diocese, if the matter be of provincial or diocesan abrogation.”

When a canon has thus been abrogated either by disuser or by contrary usage, it becomes practically dead; it cannot be revived as binding on the conscience, except by the same authority which first enacted it; therefore, as the bishop has ever been regarded as the diocesan officer for the publication of ecclesiastical law, it is evident that no canon which has become dead by disuser, can be revived by a mere priest to make it binding on the conscience. It may be adopted by an individual as a useful rule for himself, so long as it does not affect others; or it may be recommended to other individuals, but it clearly may not be laid down as a general rule, binding the consciences of the laity or clergy in general.

CHAPTER II.

APPLICATION OF THE FOREGOING REMARKS.

SECTION I. —Foreign and Domestic Canons generally quoted as enforcing Fasting Communion.

THE first thing that strikes a man who begins to investigate this question is, that it is difficult to find canons which enforce fasting Communion. If he hunt through the three massy folios containing the Decretum, the Decretals, and the Extravagants, he only finds one short paragraph about the fasting Communion of the laity, and that no ancient canon law, nor any canon of any general or particular council, but an extract, and it may be said an unfair extract, from St. Augustine’s letter to Januarius, from which a few words have been already quoted. It would seem to imply that in St. Augustine’s time there was no exception to fasting Communion, whereas in the same letter he says that “he dares not forbid” communion after food, at all events on a certain day.

This extract seems to have misled, if one may venture such a supposition, even St. Thomas himself; for St. Thomas quotes two portions of the letter, both of which are in Gratian’s extract;[41] and it is clear that St. Thomas could never have read the epistle throughout, or he would not have quoted it as deciding in a manner exactly opposite to the real decision of St. Augustine. Thus St. Thomas alleges the famous canon of the Third Council of Carthage, which excepts Maundy Thursday from fasting Communion, and recites the objection:—

“Therefore on that day at least a man can take the body of Christ after other food.”

To this objection he thinks it sufficient answer to quote St. Augustine’s letter, written three years after this council, at which he probably was present:—

“But now this has been abrogated: for, as Augustine says, (1. c.) this custom is held throughout the whole world, i.e. that the body of Christ should be taken by the fasting.”

Yet St. Augustine does not seem to say it is abrogated. He had been asked these questions:—” What ought to be done on Maundy Thursday? Ought we to offer in the morning, and again after supper, as it is written, ‘Likewise after supper?’ or must we fast and offer only after supper? or must we fast and sup after the oblation, as we are accustomed?”

To this the end of St. Augustine’s answerb is as follows:—

“But a pleasing idea has attracted some, that on one fixed day in the year, when the Lord gave the Supper, it should be lawful that the Body and Blood of the Lord should be offered and received after food, as if for a more striking commemoration. But I think it more seemly that it should be done at such an hour, that he who has also fasted can come to the oblation after the refection, which takes place at 3 o’clock. Wherefore we compel none to dine before that Lord’s Supper, but also we dare forbid none to do so.”

St. Thomas could not have read this when he quoted St. Augustine as forbidding the African custom, which was in full vigour in his day.

Neither in our English canonist, Lyndwood, do we find a prohibition of lay communion after meat, though he does prohibit those who have not confessed.

But there are certain canons usually adduced, and it will be well here to recount some of them, and see how they bind.

In Mr. Blunt’s “Theological Dictionary,” under the head “Fasting,” we find fasting Communion spoken of, and the canons quoted as follows:—

“Council of Carthage[42] III. [A.D. 397], c. 29. The Sacrament of the altar shall be celebrated only by those who are fasting, except on the one anniversary, when the Supper of the Lord is commemorated. [For if there must be offered the commendatory of any dead, whether bishops, clergy, or others, in the afternoon, it must be offered with prayers only, if they who offer have lunched.]

“Council of Braga II. [A.D. 572], c. 10. If any presbyter shall be found in this madness after this our edict, so as to consecrate the oblation not fasting, but after having taken any food, let him be immediately deprived of his office, and deposed by his own bishop.

“Council of Macon II. [A.D. 585], c. 6. No presbyter with full stomach, or having indulged in wine, shall touch the sacrifices, or presume to celebrate mass on private or festive days, for it is unjust that bodily food should take precedence of spiritual: but if any continue to do so, let him lose his dignity. [The canon then cites the above canon of Carthage, and ends thus:— ‘Whatever unconsumed parts of the sacrifices remain over in the sacrarium after mass has been gone through, let children (innocentes) be brought to church some Wednesday or Friday, by him whose business it is, and a fast[43] having been enjoined them, let them receive the same residue with wine poured over, (vino conspersas)’].

“Council of Auxerre [circ. A.D. 578], c. 19. No presbyter, deacon, or subdeacon, shall touch the mass after eating meat or drink, [nor stop in church while mass is being said],

“Council of Toledo VII. [A.D. 646], c. 2. Lest what has been advised by reason of the languor of nature should be turned into a dangerous presumption, let it be understood that no one shall celebrate mass after taking any even the least meat or drink.

“Council of [? in] Trullo [A.D. 692], c. xxix. After quoting the canon of Carthage with reference to Maundy Thursday, it is said, ‘Although for some local reasons profitable to the Church, those divine fathers made such a regulation, yet since there is no inducement for us to abandon the strict line, we determine in accordance with the apostolical traditions of our fathers, that in the last week of Lent the fifth day must not be broken, for it is dishonouring of the whole Lent.’

“Council of Mayence (1549), c. xxxiii. We seriously enjoin all parish priests and ministers of churches not to give the Eucharist to any except those who are fasting and have made confession, unless it be in cases of infirmity and necessity.”

The first thing to be observed about these canons is that they are all local canons, and cannot be supposed to bind beyond their own limits. The canon of Carthage is clearly the most known, for it is cited by two others, that of Macon and the Trullan Council. The Trullan Council (called so from being held “in Trullo,” in the vaulted room of the emperor’s palace at Constantinople), called also “Quinisextum,” from its supplementing the fifth and sixth general councils, has some pretensions to be a general council. But its canons were never received in the West; indeed, Anastasius, the Vatican librarian,[44] says that it was never received except in the Patriarchate of Constantinople, so that its decrees can only be historically valuable, and of no binding vigour in England. Still it is interesting as shewing that they cared more for the breaking the Lenten fast than for the reception of the Eucharist after food. For the reason of their repudiating the canon of Carthage was not at all that they thought dishonour clone thereby to the Sacrament, but to the Lenten fast; for they say the Maundy breaks the merit of the whole fast.

With respect to the Council of Mayence, no one could pretend that it has the least force in England. If those of the Roman obedience keep not this or that canon of Trent because it has never been received (or, if you will, imposed), why should it be thought that the canons of an obscure council at Mayence in 1549 should have more value for us than that of the dimmest historic interest? It may, however, be said that it shews that the question was attracting notice at that time on the continent, and herein, it is of some value; but it binds us not one whit.

Next, we must observe that all these canons, except that of Mayence, have respect to the clergy, and not to the laity. There is not one word, excepting the strange ending to the canon of Macon, (which Mr. Blunt’s contributor leaves out,) that has respect to the laity. For if it be supposed that the Trullan canon may include them, yet it has respect to the canon of Carthage, which is clearly restricted to the priests by the ending (omitted in the Dictionary), which speaks of the offering for a newly-departed prelate or other person.

Now a canon of discipline binding the laity may à fortiori be supposed to bind the clergy, but there is nfi shadow of a reason for thinking that a canon binding the clergy must, therefore, be alleged as affecting the laity. For example, the canons about the marriage of the clergy are severe, and in force on the continent. Are the laity affected by them?

So far, then, as canonical obligation goes, there is not one of the canons cited in the “Theological Dictionary” of that “learned and painful clerk” Mr. Blunt, that is at all binding upon the laity.

But another canon is cited in a pamphlet by Mr. Poyntz,[45] to which we cannot allude without expressing admiration for its courage and research. This is a canon of Constance, and, as it is of some importance, it will be dealt with in a section by itself,[46] and domestic canons will now be spoken of.

Mr. Baron cites Anglo-Saxon witness to the custom of fasting Communion, and these arc much to the point. In the renowned Pœnitentiale of Theodore we have the penance allotted:—

“Whosoever shall eat before he go to Housel, and after that partake of the Housel, let him fast seven days.”

He also quotes three other passages or canons.

There can be no doubt that these are of great interest and value to us; but they bind not the conscience so as to make it a sin to disobey them. For they have remained notoriously without enforcement[47] in our Church for many years; and it is allowed by canonists that a general custom, even if a bad one, however it may bear upon the introducers of the custom, yet brings no guilt upon those who follow it, when it has obtained for some time. Then, again, it has been seen that a canon is abrogated by disuser, where the Church, by its bishops, has not been protesting against that disuse. For when the bishops had made a continuous protest, it becomes a canon badly kept, and not an abrogated canon.

Now, no one can deny that there has been no attempt on the part of our bishops to insist on fasting Communion for three centuries. There is no doubt that individuals have themselves adopted the rule, or have handed on the rule as a pious custom; but there is no evidence that any bishop has enforced it as a canon of the Church. Therefore I maintain that disuser has voided it as canon law. It must be remembered that, at present, all that is asserted is that no canon hitherto alleged is binding on the conscience, so that not to observe it entails sin, much less mortal sin, as some rigorist priests among us have been known to assert. Other questions may be dealt with hereafter; the only matter in hand is to see how certain alleged canons bind the conscience, and, with respect to those cited hitherto, it is affirmed on the foregoing argument that they bind not at all.

SECTION II.— The Council of Constance.

Mr. Poyntz[48] in his valuable pamphlet, cites a canon of the Council of Constance (A.D. 1415), as binding the consciences of Englishmen now.

“The subject was again brought up at the Councils of Constance, in 1415, when it was enacted as follows:—‘The praiseworthy authority of the sacred canons and the approved custom of the Church has held and still holds that a Sacrament of this kind ought not to be celebrated after supper, nor received by the faithful who are not fasting, except in case of infirmity or other necessity, or a right either granted or admitted by the Church.’ This is the latest decision on the subject, and the one that should govern our practice; for the English Church was represented at Constance, and, according to the admitted rule, this canon, not having been repealed, is still in force.”

On this passage it must first be remarked, that if the foregoing arguments be true, there are two errors in the last sentence; first, that the presence of representative bishops at a council binds the Church represented; and secondly, that all unrepealed canons are in full vigour.

First, Mr. Poyntz says that if a Church be represented at a council, it is therefore bound by the conclusions of that council. We have seen that this has not always held. The Church of Britain was not bound by the Council of Aries in A.D. 315, though represented there by three bishops who signed the canons.[49] The West did not receive the canons of the Quinisext Council in A.D. 692, though represented there by legates from Rome, who also, as the Greeks assert, and as Anastasius the librarian of the Vatican[50] acknowledges, (writing about A.D. 870,) signed the canons there passed. The disciplinary canons of Trent were not universally received. Nor, indeed, is the Church of England bound by the Synod of Dort,. however much some Calvinists would wish to make it out. It need not follow, therefore, that because the English were represented at Constance, all its canons of discipline are now binding on the English Church.

Next, Mr. Poyntz says that it is “an admitted rule” that an unrepealed canon still binds. This rule is not admitted, if by “repealed” a distinct contrary enactment of a council is meant. As has been seen, disuser with the silent consent of the bishop, even for forty years, is held by Gibert the canonist to annul and make void a canon.

But now for the canon of the Council of Constance itself: to understand this, we must enquire into its history,[51] which is most instructive.

Complaint was made to the council that Jacobel de Misa, parish priest of St. Michael, in Prague, had established communion under both kinds, and that his example had been followed by other churches. The council referred the matter to their theologians, who, after much discussion, reported their decision under six conclusions, which were as follows:—

1. The Lord instituted the Eucharist under two kinds.

2. It was a praiseworthy custom not to administer this Sacrament after supper, except to invalids.

3. Though it was the custom of the primitive Church to communicate under the two kinds, yet to avoid all risk, it was lawful to introduce the custom of communicating the laity under the sole kind of bread.

4. This custom, observed for so long a time, ought to pass for a law, which none ought to disapprove or change without the authority of the Church.

5. He who says that it is unlawful to observe this custom is in error.

6. Those who wilfully maintain the contrary, ought to be reckoned as heretics, and as such repressed and punished.

The council then formulated these conclusions into a canon, part of which is quoted by Mr. Poyntz.

Now there is no trace whatever that any complaint or representation was made to the council that the Eucharist was celebrated after supper.[52] Jacobel, in his answer, asserts this. It is quite true that Lenfant finds in a MS. that there were floating rumours, totally devoid of foundation, that the Wicklifites and Hussites were in the habit of such profanation: but he says that there is no trace in the records of the council, nor in the history of the times, that such a thing was practised or reported to the council. Nor, indeed, is it alluded to in the short heading of the canon. The headings of the request for the decree, the decree, and the sanction of the canon,[53] run as follows:—

“Condemnation of the Communion of the laity under both kinds of bread and wine is asked for.

“Condemnation of Communion under two kinds lately revived among the Bohemians by Jacobel de Misa.

“That no presbyter, under pain of excommunication, communicate the people under both kinds of bread and wine.”

It is quite clear from this, that the question of celebration after supper is introduced only by way of argument; just as afterwards, Bossuet, defending communion under one kind, argues that, as some other attendant ceremonies such as posture of communicants, and their number, &c., had been changed, so might the giving of the cup be also changed. The theologians of the council were clearly anxious to adduce some parallel to the interference with the rite as it had been instituted. True, they say, it was instituted in two kinds, but it was also instituted after supper. The Church has altered the latter, with general consent, therefore it has power to alter the former. That this was the reason of the introducing the question of the supper may also be seen from one of the treatises published by command of’ the council. Maurice of Prague wrote (A.D. 1417) in answer to Jacobel; and, amongst other arguments, he cited certain points wherein the Church had altered the institution of our blessed Lord, and the four points he insists on are these. The Church has broken the Lord’s institution or command,—

1. By communicating fasting.
2. By using leavened bread.
3. By enforcing celibacy on priests.
4. By allowing laity, and even women, to baptize.

It is clear, then, that the matter in hand was the denial of the cup to the laity, and that the question of fasting Communion was only introduced as an argument in favour of the power of the Church to alter the institution of our Lord. Indeed, Lenfant writes that it is not at all clear whether the council meant to condemn communicating after supper, or after any food at all: it did not care to make it clear, for it was only used as an argument to bolster up the monstrous decision to withhold the cup.

Now the Church of England (thank God!) has deliberately put aside the enactment of the Council of Constance, refusing the cup to the laity, which is the special enactment of the canon. This has been done by introducing the contrary practice, by inserting rubrics directing the giving of the cup, and by asserting in a public document that “the cup of the Lord is not to be denied to the lay people.” It might well be said that, as the main enactment of the canon has been repealed by the Church of England, the arguments which were employed to support the enactment will fall with it; just as when a judgment is reversed, all obiter dicta uttered in giving judgment lose whatever value they ever had,—and that, say all lawyers, is nothing at all.

But, whatever may be said on that score, the words of the canon of Constance may be used in England against the binding force of the rule of fasting Communion. For it must be evident that the language of the canon is very carefully worded; and worded according to the rules laid down by canonists in order that a custom may have force of law. The argument of the canon will therefore hold for any contrary custom which has obtained; for the whole canon or decree of the council runs thus:—

“Although Christ instituted this venerable Sacrament after supper, and administered to His disciples under both kinds of bread and wine; yet this notwithstanding, the excellent authority of the ancient canons, and the approved custom of the Church, has held, and holds, that this Sacrament ought not to be celebrated after supper, nor be received by the faithful who are not fasting, except in case of infirmity or otherwise of necessity of right yielded or acknowledged by the Church. And just as this custom was reasonably introduced for the avoiding certain dangers and scandals, so by a like or greater reason it could be introduced and reasonably observed, that, although in the primitive Church this Sacrament was received by the faithful under two kinds, yet since then it should be received by the celebrants under both kinds, and by the laity under the species of bread only: since it is most firmly to be believed, and in no wise to be doubted, that the whole Body and Blood of Christ are truly contained as well under the species of Bread as under the species of Wine. Whence, since this custom has been reasonably introduced by the Church and holy fathers, and has been observed for a very long time, it is to be regarded as a law which none may disapprove or alter at his own will, without the authority of the Church. Wherefore, it ought to be thought erroneous to say that it is sacrilegious or unlawful to observe this custom or law; and those that obstinately [pertinaciter] assert the opposite of the foregoing are to be restrained as heretics