Sunday, 18 March 2012

The Church in court

One of the more curious features of Victorian history was a series of legal battles in which clergy and laypeople in the Church of England used the English civil courts to vindicate their various differing interpretations of orthodox Anglican belief and practice.

To this day, the highest judicial authority in the Anglican Church is a secular body of the British state, namely the Judicial Committee of the Privy Council.  These days, the Committee consists purely of senior judges.  In the 19th century, individual bishops and archbishops were members, or sat with the lay judges as assessors.

This odd state of affairs developed from two distinctive features of the Church of England which have characterised it since it was set up by King Henry VIII in the 16th century.  The first is that the C of E is an established church.  It is not a private organisation, free to determine its own doctrine and discipline without state interference; nor is it answerable to any supranational authority like the Catholic and Orthodox churches.  It was the creation of the English state, its bishops are appointed by the Crown, and its legislation remains subject to parliamentary oversight and the decisions of secular judges.  To this day, Canon A7 of the Church's code of canon law ("Of the Royal Supremacy") states:
We acknowledge that the Queen’s excellent Majesty, acting according to the laws of the realm, is the highest power under God in this kingdom, and has supreme authority over all persons in all causes, as well ecclesiastical as civil.
In principle, it is the Queen who rules on appeals in ecclesiastical lawsuits - the Privy Council merely "advises" Her Majesty what judgment to hand down.  It has exercised this function since 1833.

The second feature is that the C of E is not a confessional church.  Like all churches, it has various doctrinal statements and liturgical texts, such as the Thirty-Nine Articles and the Book of Common Prayer, but it does not exist to promote a specific system of theology.  This sets it apart from the likes of the Catholic Church, which exists to promote Catholicism, and the Lutheran and Presbyterian Churches, which exist to promote their respective brands of Protestantism.  There has never been a single coherent philosophy which can be called "Anglicanism".  This has allowed very different and mutually hostile factions to coexist within the borders of the Church, the most important fault lines being the one separating Catholic-minded Anglicans from their Protestant-minded brethren and the one dividing theological conservatives from liberals.

Most of the church litigation of the 19th century flowed from the Catholic/Protestant divide.  A movement had arisen affirming that the identity and faith of the Church of England was fundamentally Catholic rather than Protestant.  This movement is generally referred to using a series of distinct but overlapping terms: the Oxford Movement, ritualism, tractarianism, the Catholic revival and Anglo-Catholicism.  Its inception is often dated to a sermon on "National Apostasy" preached in Oxford by John Keble in 1833.  While it was (and is) a broad and variegated movement, its distinctive characteristics have included the following:
  • Practices which presuppose that the consecrated bread and wine in Holy Communion are truly the body and blood of Jesus Christ.  These include the reservation and adoration of the consecrated bread, the ceremony of benediction, and the celebration of the feast of Corpus Christi.
  • Liturgical texts and practices taken from the Tridentine Mass of the Catholic Church.  These include prayers from the Roman Canon, the priest facing east, the Agnus Dei, celebrations of the Eucharist where only the priest communicates, and the Mass of the Presanctified on Good Friday.
  • Catholic clerical vestments such as the chasuble.
  • The practice of confession to a priest.
  • Veneration of the Virgin Mary and the saints.
  • Veneration of images.
One major battleground in the struggles over ritualism was the "Ornaments Rubric" found in the Book of Common Prayer.  This directed priests to use the "ornaments" in public worship that had been in use in the second year of the reign of King Edward VI.  The intention appears to have been to restrict priests to using simple, post-Reformation, Protestant "ornaments", but Anglo-Catholics pointed out triumphantly that the old mediaeval Catholic accoutrements had not in fact been replaced until the third year of Edward VI's reign, so they were entitled to go on using them.

Two of the major players in the court battles were the English Church Union (founded 1860) on the Anglo-Catholic side and the Church Association (1865) on the Evangelical Protestant side.  There was great controversy over the use of secular courts to determine religious questions.  Parliament was used for the same purpose.  The Evangelical peer Lord Shaftesbury tried several times to introduce legislation to curb ritualism, and in 1874 Archbishop Tait of Canterbury succeeded in passing the anti-ritualist Public Worship Regulation Act with the support of Disraeli and Queen Victoria (legal actions had previously been brought under the Church Discipline Act 1840).

The stream of Victorian ecclesiastical litigation essentially began in 1847 with the case of the Rev. George Cornelius Gorham.  Gorham believed that the baptism of children was ineffective unless the individuals concerned personally ratified their baptismal promises in later life.  This idea is closer to that of continental Calvinism than to mainstream Anglican belief, and consequently Henry Phillpotts, the formidable Bishop of Exeter, refused to grant Gorham an appointment in his diocese.  Gorham appealed to the Court of Arches, an Anglican ecclesiastical court, and then to the Privy Council.  The Privy Council allowed his appeal in March 1850.  Bishop Phillpotts denounced the ruling and threatened to excommunicate any other bishop who gave Gorham a parish, including the Archbishop of Canterbury.  Nevertheless, the court's ruling stood, and Gorham spent the rest of his career as the Vicar of Brampford Speke in the diocese of Exeter.  It is said that the Gorham case precipitated Henry Edward Manning's conversion to Catholicism.

The first ritual case was initiated in 1854 again the Rev R. Liddell, the Vicar of St Paul's, Knightsbridge. Liddell had been using "ornaments" which included
the High Altar with the Cross elevated thereon or attached thereto, gilded candlesticks and candles, a credence table, various altar coverings, a chancel screen, and a Cross upon it.
The ecclesiastical courts found that the ornaments were illegal, with the exceptions of the candlesticks and candles, and the chancel screen.  Liddell appealed to the Privy Council, and in March 1857 the Council found that he was entitled to use the credence table, the coloured frontals or coverings, the cross on the chancel screen and the cross above the altar (but not placed on it).  Importantly, the Privy Council approved the ritualists' interpretation of the Ornaments Rubric.  This gave a shot in the arm to the ritualist cause, and Catholic-style liturgical practices accordingly increased.

The next case to reach the courts was that of George Denison.  Denison had preached sermons and otherwise promoted teachings which, amongst other things, affirmed the Catholic belief of the real presence of Christ in the bread and wine at Holy Communion.  Denison was sued by Joseph Ditcher, the vicar of the neighbouring parish, and the case reached Archbishop Sumner of Canterbury.  At a court held at Bath in August 1856, judgment was given for Ditcher.  Protests from Anglo-Catholics followed, and Denison appealed to the Court of Arches.  In April 1857, the Bath judgment was overturned on a legal technicality, and the following February the Privy Council declined to reverse this decision.  Once again, the civil courts had found in favour of a clergyman who had departed from mainstream Anglican orthodoxy.

That was nothing compared to what followed.  In 1864, the Privy Council abolished Hell.  This case arose out of the publication in 1860 of Essays and Reviews, a landmark volume of theological essays written from a liberal perspective.  I have blogged about this case elsewhere.  It did not go down well with conservative Anglican opinion.

A few years later, in 1867, the Rev. Alexander Mackonochie was sued by the Church Association for using ritualistic practices.  These included "the elevation of the host, the use of lighted candles and the mixed chalice together with incense, chasubles of coloured silk, confessionals, stations of the cross and other popish toys".  In March 1868, the Court of Arches found against Mackonochie on two counts and in his favour on a further three.  An appeal to the Privy Council followed, and in December 1868 the Council found against the defendant on all counts.  Further legal action against Mackonochie followed, and he ended up being suspended from his ministry for three months.

Before long, Mackonochie found himself in court again.  Another action was brought in March 1874: this reprised the old charges and added some new ones, including the use of processions with a crucifix, the Agnus Dei, and facing east during Holy Communion.  Mackonochie lost the case in June 1875, and was suspended for six weeks.  He continued to face legal troubles until he finally resigned as Vicar of St Peter's, London Docks, in December 1883.

The Church Association's next target was the Rev John Purchas of Brighton.  They laid against him 35 charges, including "the hanging of a stuffed dove over the altar".  Purchas did not defend the litigation, pleading poverty and ill-health.  In February 1870, he lost in the Court of Arches on some, but not all, points, and his accusers appealed to the Privy Council.  The following year, the Council ruled definitively against Purchas.  The conclusion was that Catholic-type vestments were illegal, along with the eastward-facing position and the use of the mixed chalice (i.e. a chalice containing both wine and water in the Catholic style) and the use of wafers as communion bread.  Purchas himself refused to comply with the judgment.

While all this was going on, there were those in the Church who wanted to bring matters to a final resolution.  In 1866, the bishops decided to seek counsel's opinion on the state of the law.  They consulted four barristers, who advised them that the law did not allow the use of Catholic vestments, altar-lights, incense, the mixed chalice or communion wafers.  The English Church Union responded by obtaining an opinion from nine barristers saying that most of the practices in question were legal (with the curious exception of the use of incense).  In 1867, a Royal Commission on Ritual was set up.  This failed to resolve the issue, and the result was the enactment of the Public Worship Regulation Act in 1874.  The Act established a new court to oversee matters of Church discipline, thus cementing the authority of Parliament and the civil justice system over religious questions.  A stream of lawsuits followed.  The Act signally failed to stamp out Anglo-Catholicism, and five priests ended up being imprisoned for contempt of court.  Prosecutions didn't stop until another Royal Commission reported in 1906, and the Act remained on the statute books until 1965.

One of the actions brought under the 1874 Act was the 1875 case of Clifton v Ridsdale.  This concerned the question of celebrating Holy Communion facing east, an issue which concerned a particularly large number of clergymen.  The practice had been condemned in the Purchas case, but there was concern that that decision had been unreliable because Purchas had not offered any defence to the court.  Also at issue were the wearing of Catholic vestments and the use of communion wafers.  At first instance, the decision went against Ridsdale.  In May 1877, the Privy Council gave a mixed decision.  It confirmed that the Catholic vestments were illegal, modified the ruling on communion wafers, and accepted the legality of the eastward-facing position, provided that what the priest was doing with his hands was not invisible to the congregation.

In 1888, the Church Association attempted to claim its first episcopal scalp: that of Bishop King of Lincoln.  The complaint concerned a series of ritualistic practices.  The case went before Archbishop Benson of Canterbury in November 1890.  The archbishop permitted, under certain conditions, the use of the mixed chalice and altar-lights, the eastward-facing position, and the singing of the Agnus Dei; he ruled against making the sign of the cross when giving the absolution and the benediction.  The Privy Council dismissed the inevitable appeal on all points in August 1892, save that they made no ruling on the altar-lights.