Chapter IX. Martin versus Mackonochie.
Position of religious parties in 1863--The Church Association--Action taken by Lord Shaftesbury--The Ritual Commission--Fresh prosecution at St. Alban's--Judgment given by Court of Arches, March 25, 1868--Its results--Mr. Mackonochie before the Privy Council--First suspension, 1870--Protests--Fresh suit instituted, 1875--Further Protests--Mr. Tooth's case--Public Worship Regulation Act--A new jurisdiction--Three years' suspension, 1878--Appeal to Lords dismissed--Resignation of St. Alban's--Sequestration of St. Peter's, London Docks--The Royal Supremacy
[The following chapter and the history of the Ecclesiastical Courts, given in the Appendix, were written by Dr. Littledale.--Ed.]
The situation in 1863, the year when St. Alban's Church was consecrated, was a critical one for the Church of England. The High Church revival had been largely directed, from the delivery of the judgment in Liddell v. Westerton, to the adornment of public worship, so as to bring it into more harmony with the newly restored or newly erected churches whose beauty and magnificence contrasted so strongly with the squalor and meanness which had been prevalent earlier in the century. If the judgment itself had been intended to check the beginnings of ritualism, just faintly discernible at its date, the unfamiliarity of the Judges with the subject-matter prevented them from noting how much more the positive factors in their finding--those admitting the legality of all the Edwardine ornaments, and the permissibility of subsidiary articles not prescribed by any rubric--made in favour of ritualism, than the negative factors and specific prohibitions made against it. Consequently, the spread of ceremonial observances which had been long in abeyance was both wide and rapid from this time forward, and caused as much resentment amongst the members of one school in the Church as satisfaction to those of the competing school. And it happened that just then various circumstances combined to put the Evangelical party into a very favourable position for organising a campaign against the innovations which were so unwelcome to it. The most prominent member of their party was a nobleman universally respected for his ardent philanthropy, which made the Earl of Shaftesbury a tower of strength to any cause he was willing to champion, and he was heart and soul opposed, not only to the external observances of ritualism, but to the whole theology from which they sprang. His influence with Lord Palmerston, his near connection, enabled him virtually to nominate the bishops appointed during Lord Palmerston's ministry, and thus in 1865 the proportion of Evangelicals in possession of Sees was larger than it had been since the time of Queen Elizabeth, while several prelates who could not be classed along with them were, from other points of view, quite as hostile to the ceremonial movement. Not more than six bishops could be accurately described as High Churchmen, though a few were found including the Primate, Archbishop Longley, who were so styled because they could not be reckoned as cither Broad or Low Churchmen, but not because they had any firm grasp of High Church theology, or any sympathy with the new development. Thus a powerful majority of the Episcopate could be safely depended on to do what they could for the suppression of ritualism; and at the same time a like hostility was felt by some of the principal lawyers of the day, who were all but certain to find a place on any Committee of Privy Council before which suits to repress ceremonial might be brought. These facts did not escape the observation of the Evangelical leaders, who had noted all along from the date of the Gorham Judgment the temper of the Judicial Committee, and felt that it could be relied upon as their firm ally. Accordingly, a new organisation was set on foot in 1865, in opposition to the English Church Union, which was to be specifically occupied with counteracting ritualism, and that not only by the ordinary methods of controversy, but by stirring up litigation, instituting prosecutions, and supplying the funds to meet the legal expenses, and it took the name of the 'Church Association.' Nor was this all. Two years later, the weapons which the new society had so far lacked were forged and placed in its hands by its unacknowledged allies. Its own most prominent member, Lord Shaftesbury, was preparing a Bill for putting down ritualism by the direct action of Parliament, and without any reference to the Church, for which scheme he had secured the support of the greater number of the Bishops, who did not at first see the grave peril of such a course, almost certain as it was to have provoked a schism.
They had come to this conclusion upon the receipt of an elaborate report on the subject of the ritualism recognised in the Prayer Book, drawn up by a committee of the Lower House of the Convocation of Canterbury, to which they had replied in the following terms:
Our judgment is that no alteration from long-sanctioned and usual ritual ought to be made in our churches until the sanction of the bishop of the diocese has been obtained thereto.
When it was made clear to them that they could not safely unite themselves with Lord Shaftesbury in his legislative plans, their next idea was that the Archbishop of Canterbury should himself introduce a Bill into Parliament on very similar lines, and with a like neglect of the constitutional initiative of the ecclesiastical assemblies. The history of the crisis can be read in the 'Life of Bishop Samuel Wilberforce' (vol. iii. pp. 204-210); and the salient facts are that Lord Shaftesbury's Bill was to make the fifty-eighth canon (which enjoins the surplice for use in all ministrations) the sole rule for the ornaments and vestments of the Church of England, and that the whole of the Northern Bishops and all the Southern ones save three were in favour of it. The Bishop of Oxford drew Mr. Gladstone's attention to the serious peril thus threatening the Church, and he succeeded in dissociating the Primate from the coalition, and inducing him to obtain from Lord Derby a Royal Commission of inquiry into the whole ritual question, instead of the summary process of an Act of Parliament.
Lord Shaftesbury, however, did not await the result of this step, but introduced his Bill into the House of Lords, where a majority of the Bishops (eleven as against eight) voted in its favour; but it was thrown out by a majority of fifteen votes, mainly in consequence of a speech by the Bishop of Oxford, who pointed out that the principle on which the Church of England was constituted was not that of compromise, whereby one neutral type of opinion was made the only standard for all its members; but that of comprehension, so as to include men of widely differing schools, and that it would be most unwise to destroy this comprehensiveness by legislating in the interest of one party exclusively. Accordingly, upon the rejection of the Bill, the alternative method was proceeded with, and a Commission was appointed, consisting of fourteen ecclesiastics and fifteen laymen, but so composed that eighteen out of the twenty-nine were certain to report against Ritualism, whatever the evidence might be, and only six who were likely to give it a fair hearing. Five of the Commissioners were ultra-Puritans, six were Bishops who had all pronounced against ritualism, two were Broad Church deans who had done the like, three were high and dry Churchmen who had also declared against the ritualists, and two were lawyers who had been active upon the same side. It should be said here that in 1866 a carefully garbled case was drawn up on behalf of the Archbishops and several of the Bishops, in a sense adverse to the revived ceremonial, and an opinion had upon it, signed by the then Attorney-General, Sir Roundell Palmer (since Earl of Selborne), Sir H. M. Cairns (afterwards Earl Cairns), Mr. Mellish and Mr. Barron. They took the view that the Statute of Elizabeth had been altered by the document known as the Advertisements of 1564-6, that having been the 'taking of other order,' as provided for in the Statute, and that this other order had prevailed down to 1662, while no change was introduced then, the new ornaments rubric pointing merely to the retention of such ornaments as had continued in use, and not to the revival of such as had become obsolete. . . . This opinion was delivered on May 29, 1866, and is the instrument whereby the findings in Hibbert v. Purchas and Ridsdale v. Clifton were effected. Its legal untenability will be discussed presently, it suffices to set down the fact alone now.
An opposing case was drawn up on behalf of the English Church Union, and submitted to nine counsel of at least equal distinction, none of whom, besides, were so definitely committed by obstinate prejudice to one side in the controversy as the two most prominent of those named above. They were Sir R. J. Phillimore, the chief ecclesiastical lawyer of his day, Sir Fitzroy Kelly (later Lord Chief Baron), Sir William Bovill (later Lord Chief Justice of Common Pleas), Mr. W. M. James, Dr. Deane, Mr. J. D. Coleridge (now Lord Chief Justice Coleridge), Mr. C. G. Prideaux, Mr. J. Hannen, and Mr. J. Cutler. These nine advised with entire unanimity in favour of the legality of the vestments, six of them in favour of altar lights (one, Sir Fitzroy Kelly, was unable to give his opinion, having been raised to the Bench meantime), and they were variously divided upon the remaining points in dispute, except that they were generally agreed against the legality of the ceremonial use of incense. This opinion was delivered by instalments between July 13 and November 17, 1866; and these two competing documents formed part of the apparatus of the new Ritual Commission. The Commission began to sit on June 17, 1867, and examined seventeen witnesses, of whom eight represented various shades of Anti-Ritualism, and nine as many of its opposite. A careful analysis of the evidence yields the following results: Only eight of the witnesses touched upon the question of vestments--obviously the most contentious element in the inquiry--and of these eight four spoke definitely in support of the vestments, stating that they were very popular where used, and had helped to fill once empty churches; while, curiously enough, the only direct testimony of a contrary kind came from one gentleman who had seceded from the Church of England in a parish where ritualism prevailed, and had opened a meeting-house, ministered in by a Nonconformist pastor. But it came out in the course of his evidence that his quarrel with the clergy dated from 1844, of course many years before any ritualism had appeared, that he had opened the meeting-house in 1860, some years before the adoption of vestments in the parish church, and, finally, that only two of the parishioners attended his services, while it was not alleged that even these two had ever been Churchfolk, and not Dissenters. Consequently, as a matter of the evidence adduced before the Commission, the case against the vestments broke down utterly. Nevertheless, in their first Report sent in upon August 19, 1867, the Commissioners spoke as follows:
We find that while these vestments are regarded by some witnesses as symbolical of doctrine, and by others as a distinctive vesture whereby they desire to do honour to the Holy Communion as the highest act of Christian worship, they are by none regarded as essential, and they give grave offence to many. We are of opinion that it is expedient to restrain in the public services of the United Church of England and Ireland all variations in respect of vesture from that which has long been the established usage of the said United Church, and we think that this may best be secured by providing aggrieved parishioners with an easy and effectual process" for complaint and redress.
They were not content with thus misrepresenting the general tenor of the evidence as to this part of the inquiry, but were almost more culpably silent concerning faults of omission. For they were not commissioned to examine one part of the question solely: their duty was to inquire into the whole subject of public worship in the Church of England, for the terms of the Commission run, that as differences of practice have arisen from varying interpretations put upon the rubrics, orders, and directions for regulating the course and conduct of public worship, the administration of the Sacraments, and the other services contained in the Book of Common Prayer, according to the use of the United Church of England and Ireland, and more especially with reference to the ornaments used in the churches and chapels of the said United Church, and the vestments worn by the ministers thereof at the time of their ministration, ... it is expedient that a full and impartial inquiry should be made into the matters aforesaid, with the view of explaining or amending the said rubrics, orders, and directions, so as to secure general uniformity of practice in such matters as may be deemed essential.
Thus, as just said, the entire subject was intrusted to the Commissioners, and they were bound to report upon all of it. But although a large body of evidence was laid before them of systematic violation of plain directions of the Prayer Book by members of the Puritan school, and also that these violations caused much distress and pain to many persons, even driving them from their parish churches (just the kind of testimony which was not forthcoming upon the other side), not one syllabic in the Report so much as hints at this aspect of the matter. Nor did the Commissioners say anything as to the legal merits, although this issue came up directly before them, seeing that the High Church witnesses alleged themselves to be complying with the clear intention of the law in adopting the vestments and attendant ceremonial; while, contrariwise, the Puritan witnesses did not allege the law as justifying them, save in respect of omitting daily service, and wearing the black gown in the pulpit.
But, unfair as the Report was, it did not content the party in whose interest it was framed, because it not only expressed no condemnation of the doctrines connected with the revived ceremonial, but by using the word 'restrain' instead of 'prohibit,' in reference to the vestments, it left a loophole open for their use wherever the authorities happened to be favourable, or where no formal complaint by three aggrieved parishioners was lodged.
The force of this difficulty in the path of those who were resolved on extirpating ritualism was felt to be considerable, and all the more because the legality of the vestments had never been seriously contested at any time since the Restoration till quite recently, for all the older liturgical writers and others who have occasion to discuss the question are absolutely unanimous in pronouncing them legal. So the Presbyterian ministers at the Savoy Conference; [Cardwell, History of Conferences, p. 314.] so Baxter, 'Considerations on the Book of Common Prayer;'' so Delaune in 1704; so Dr. Nicholls in 1710; so Wheatley at the same date." Indeed, the first attempt to contest this position seriously was made in 1830 by Bishop Mant of Down and Connor, in his treatise 'The Clergyman's Obligations Considered,' wherein he argued that the actual usage and the assent of the governors of the Church thereto abrogated the former law, and made the vestments illegal, though of course at that date the question was a purely abstract one, and not so much as dreamed of as being within the range of practical politics. But he was directly confuted by Dr. Stephens in his 'Book of Common Prayer, with Notes Legal and Historical,' wherein he observes:
The irresistible answer to Bishop Mant's argument is that neither the 'governors of the Church' nor 'usage' can supersede the positive enactments of the Statute Law. . . . All the directions contained in the First Book of Edward VI. as to the ornaments of the Church and of the ministers thereof at all times of their ministration are, by Stat. 14 Car. II. c. 4, the Statute Law of the Anglican Church.
It is important to keep these facts in mind, as they establish that the legality of the vestments was no novel idea suddenly evolved by a few black-letter ritualists, and sprung unexpectedly upon a public reared in a contrary belief, but the opinion which had been held consistently by all serious students of the question for the two centuries which had elapsed since the last revision of the Book of Common Prayer. And consequently those clergymen who revived their use had ample reason for holding that they were not merely availing themselves of an indirect permission, but obeying a definite injunction of the law.
Such, then, was the general position when the recrudescence of litigation began. From the consecration of St. Alban's, Holborn, in 1863, the ritual of the Holy Eucharist adopted there included the eastward position, unleavened bread, the mixed chalice, altar-lights, and linen vestments, the last-named having been provided by the patron. In 1864 coloured silk vestments, presented by the congregation in the previous year, and incense, were added. No objection was raised against any of these details by those practically concerned, the regular attendants at the services; but they gave great offence to the Church Association, which was quick to see much more danger to the system it upheld in the spread of ornate services to the classes represented in the congregation of St. Alban's than had threatened it so long as they were confined to the section of society attending such churches as St. Paul's, Knightsbridge, and St. Barnabas', Pimlico.
Accordingly, a prosecution was resolved upon, and a technically qualified prosecutor was found in a Mr. Martin, a solicitor residing in the parish of St. George, Bloomsbury, and having his offices in New Square, Lincoln's Inn, but whose name stood on the rate-book of the district of St. Alban's in consequence of his holding the office of secretary to some schools situate therein. He was not the first person selected as promoter in the suit, but was chosen to occupy the vacancy left by the death of the gentleman first selected. He was not himself specially anxious to move in the matter, but pressure was put upon him by the Church Association.
The Bishop sent Letters of Request to the Arches Court on March 28, 1867, and the citation to Mr. Mackonochie issued thence on April 5, but the case did not actually come on for hearing until June 15. The Dean of Arches was then Dr. Lushington, and had he heard the case to the end, there is no doubt that he would have condemned Mr. Mackonochie upon all the issues involved, which were the mixed chalice, altar-lights, kneeling during the Prayer of Consecration, elevation of the chalice and paten, and censing persons and things. But Dr. Lushington retired from office soon after the opening of the case, and was succeeded by Sir Robert Phillimore (who had previously been retained as counsel for Mr. Mackonochie in this suit), before whom the case was heard, and who decided it, together with the cognate action of Flamank: Simpson, in a single judgment, pronounced on March 28, 1868, the anniversary of the day upon which the Letters of Request had been issued.
This judgment, a very learned and careful one, was to the effect that (1) it is not lawful to elevate the cup and paten during the celebration of the Holy Communion in a greater degree than is necessary to comply with the rubric; (2) it is not lawful to use incense for censing persons and things, or to bring in incense at the beginning of or during the celebration, and to remove it at the end of the celebration; (3) it is not lawful to mix water with the wine during the celebration; (4) it is not unlawful for the celebrant to kneel during the Prayer of Consecration, at least unless the Bishop has in his discretion made an order forbidding it; (5) it is lawful to place two lights upon the Holy Table during the celebration. A further point was also ruled, but it concerned the other suit only, and need not be cited here.
On these several points it should be said that in respect of the first-mentioned, that of elevation, Mr. Mackonochie had discontinued the kind and degree of elevation which he had previously practised, having had a conference with his diocesan, and having agreed to modify his usage; while the censing of persons and things had been discontinued from the date of the opinion of the nine counsel consulted by the English Church Union; and the disallowance of the ceremonial mixing of the chalice was based upon the ground of the omission of any such ceremony from the manual acts prescribed in the existing rubric, though a non-ceremonial mixing in the sacristy before service was pronounced admissible. No order was made as to costs, partly because some of the points were given in favour of the defendant, while he had spontaneously altered his procedure as to others before the institution of the suit; but still more because the promoter was neither a churchwarden nor a resident parishioner, whose business it might be to interfere, but had merely the technical right conferred by the diocesan's acceptance of him as promoter in the suit.
Further, two principles of interpretation laid down by Sir Robert Phillimore in this judgment directly negatived two of the main arguments relied on and urged by the prosecution: in that he set out with much force and clearness the historical and legal continuity of the pre-Reformation and post-Reformation Church of England, as against the contention that a wholly new body was constituted by the changes in the sixteenth century; and that he dwelt upon the legal distinction between 'non-user,' the mere abeyance of any once lawful practice, and 'dis-user,' its formal repeal, which the prosecution had treated as convertible and even identical terms, although the leading advocate upon that side was the very Dr. Stephens who had confuted Bishop Mant upon this precise issue.
And consequently, though most of the secular journals agreed in treating the judgment as a very heavy blow and discouragement to the ritualistic school, and it was known that Mr. Mackonochie had expressed his readiness to submit to it, yet the Puritan school was far from content with it, and notice of appeal to the Privy Council was lodged immediately. The case was argued before the Judicial Committee from November 17 to November 20, and the Court which sat to hear it consisted of Lord Cairns, then Chancellor, Lords Chelmsford and Westbury, Sir William Erie, Sir J. W. Colvile, and the Archbishop of York. The appeal was limited to the permission of kneeling in the course of the prayer of Consecration, the use of altar-lights, and the disallowance of costs, and on all three the decision was given in favour of the prosecution, which was also allowed the costs of the appeal.
This partisan finding was not only discredited alike by the dissent of the two ablest lawyers composing the Court, Lord Westbury and Sir William Erie, by the neutral position taken up by Sir J. Colvile, and by the adhesion of the Archbishop of York (by whose casting vote it was thus carried), but it proved exceedingly distasteful to the very party which had invited it. For in order to compass the condemnation of Mr. Mackonochie upon the count of kneeling during the prayer of consecration, the Court ruled thus:
Their Lordships entertain no doubt on the construction of this rubric, that the priest is intended to continue in one posture during the prayer, and not to change from standing to kneeling, or vice versa; and it appears to them equally certain that the priest is intended to stand, and not to kneel. They think that the words 'standing before the Table' apply to the whole sentence; and they think this is made more apparent by the consideration that acts are to be done by the priest before the people as the prayer proceeds (such as taking the paten and chalice into his hands, breaking the bread, and laying his hands on the various vessels) which could only, be done in the attitude of standing.
But this ruling at once struck at and made unlawful the ordinary Puritan usage of removing the bread and wine from the centre of the altar to the north end, and proceeding to consecrate there. And this view of the ruling was at once acted upon by many persons who had till then been in the habit of consecrating at the north end, including Bishop Wilberforce, and was accepted subsequently in the Court of Arches as decisive upon this issue.
The judgment, however, by its condemnation of the altar-lights, contrived to evacuate a good deal of the finding in Liddell v. Westerton, in accordance with which, as already stated, all articles or utensils 'used under' the First Book of Edward VI. continue to be lawful. The Court upon this latter occasion, while ostensibly agreeing with the ruling of the earlier judgment, that the words 'authority of Parliament' in the ornaments rubric apply solely to the Act legalising the First Book, or do not cover any injunctions or the like having statutory authority at that time, yet practically reversed its conclusion upon a vital issue: that the ornaments rubric legalises all articles actually used anno 2 Edward VI. in the course of divine worship, but does not touch mere inert decorations, such as an altar cross or a banner. The limitation now introduced was that instead of all that was 'used under' the First Prayer Book being legal, nothing remained so except what was 'prescribed by' that Book. As the candles upon the altars of SS. Paul and Barnabas were not lighted at the time of the suit of Liddell v. Westerton, and as the lawfulness of the candlesticks and unlighted candles had been ruled by Dr. Lushington, this particular count had not come up before the Judges on that occasion, since there was no appeal raised upon it; but it is reasonable to conclude that the Court would have ruled the legality of altar-lights, as unquestionably 'used under' the First Book.
Another dictum of the Mackonochie judgment was of an even more sweeping range, namely, that 'by necessary implication a rubric abolished what it does not retain': a thesis readily confuted by such disproofs as the failure, at the very outset of Morning Prayer, to prescribe the dress, the place, and the posture of the officiating minister; the existence of formally prohibitory rubrics, which would be superfluous if the dictum were true; and such a fact as the absence, ever since the substitution of the Second Book of Edward VI. for the First Book, of any direction to pour wine into the chalice. There is a positive direction of the kind in the First Book:
'And putting the wine into the chalice, or else in some fair and convenient cup, prepared for that use (if the chalice will not serve);' but nothing equivalent is in the present Prayer Book, nor has there been in any Prayer Book legal since 1552, so that, on the showing of the Court in this case, it has been illegal to put wine into the chalice for the last three centuries. No more crushing demonstration of the mingled bad faith and ignorance of the judgment could be adduced. And the animus displayed in the matter of costs is in notable contrast with the action of the Judicial Committee in the case of Liddell v. Beal in 1860, when Mr. Beal complained that the monition directed to Mr. Liddell had been disobeyed on three points. The Court found against Mr. Beal on all three counts, and mentioned further that Mr. Beal had no locus standi, and was heard merely because Mr. Liddell had consented to waive the objection of his being no longer a parishioner; yet it allowed him his costs. But in the Mackonochie case, although four out of the six points charged had been given for him in the lower Court, and the promoter had never been a parishioner, the whole of the costs were given against him.
The monition to refrain from sundry specified ceremonial acts issued upon January 19, 1869, and was complied with at St. Alban's. Nevertheless, the Church Association, acting through Mr. Martin, lodged a complaint on December 2 against Mr. Mackonochie before the Privy Council for disobedience to the monition in continuing to elevate the chalice and paten, in using lighted candles when not required for necessary light, and in kneeling and prostration during the prayer of Consecration. Mr. Mackonochie conducted his own case on this occasion, and the Judges were Lord Chancellor Hatherley, Lord Chelmsford, Sir J. W. Colvile, Sir Joseph Napier, and the Archbishop of York. On the first count he pleaded that he had obeyed the monition, which had forbidden one kind of elevation only, that above the head of the celebrant, and had practised only the lesser elevation conceded by the Arches judgment; on the second, that the lights were no longer used at the time prohibited; and on the third, that he had entirely ceased from kneeling, had not at any time practised prostration, but that he had bent his knee in the course of the consecration prayer, and might possibly have once or twice touched the ground when doing so, but not intentionally. That genuflexion is not kneeling, and therefore he was entitled to construe a penal injunction in the narrowest way, a literal compliance being all that the law exacts in such cases, and thus he was free to use the less demonstrative gesture.
The decision of the Court was that he had established his compliance with the monition on the two counts of lights and elevation, but that he had disobeyed it in genuflecting, which was constructively forbidden by the prohibition to kneel, as being in part materiel, and he was condemned in the costs of the appeal, for having adhered to the letter of a criminal judgment, though it is a recognised maxim of English jurisprudence that every such judgment shall be construed in the narrowest and most rigid manner.
Ten days after the delivery of this finding, the Church Association again sent spies to St. Alban's, and on receiving their report, again charged Mr. Mackonochie with disobeying the monition by sanctioning on the part of others the acts he was forbidden to do himself, to wit, elevation and kneeling, or prostration; and affidavits were filed describing the acts done by the officiating clergy upon seven Sundays in the months of December 1869, January and February 1870. The hearing was appointed for March 26; but Mr. Mackonochie, acting under legal advice, did not appear by counsel to defend himself, but filed counter-affidavits from the accused officiants and from the churchwardens, denying the truth of the charges alleged.
Hereupon he received notice that the case would not be proceeded with; but, nevertheless, three fresh affidavits, said to be in reply to those he had put in, were filed in July; but, in point of fact, they also related to an alleged offence committed by himself upon June 17, and the hearing came on before the Judicial Committee (consisting of Lords Hatherley and Chelmsford and the Archbishop of York) upon November 16 and 18. Three counsel, Ur. Stephens, Mr. Archibald, and Mr. Benjamin Shaw, with their proctors, appeared for Mr. Martin, the promotor; Mr. Mackonochie was unrepresented, and the matter turned entirely upon the credit to be attached to the rival affidavits. Those filed by Mr. Mackonochie and the other clergymen charged not only specifically denied the truth of the charges, but brought counter-charges of grave misconduct in church against the informers, to which they in their turn replied in a supplemental affidavit, denying the charges. The first day's proceedings were mainly formal, and the principal matter which occurred was the permission granted by the Court for the very unusual course of oral examination of the witnesses whose affidavits had been put in. Mr. Mackonochie himself was the first to be examined, and his testimony was to the following effect: (1) that when the monition issued, he had told his curates that he intended to obey it, but did not remember giving them any directions to do the like; (2) that he had never practised the forbidden elevation since 1866, and that he had told the curates that there was henceforth to be no genuflexion in the course of the consecration prayer, and that he himself intended to bow instead of kneeling; (3) that his object had been to obey the law of the Church without disobeying the law of the State.
Judgment was pronounced upon November 25, and was to the effect that Mr. Mackonochie had not complied with the monition in respect of elevation; that the low bow he had substituted for genuflexion was 'a humble prostration of the body in reverence,' and was also a disobedience to the monition, and therefore that he should not only, as on the former occasion, pay all the costs of the application, but be suspended from office and benefice for three months; and it was specifically observed that his main offence was that he had 'carefully scanned the monition and the Order in Council, to see how nearly he could preserve the prohibited ceremonies . . . without disobeying the law of the State;' but that he had been again foiled in his 'attempt to satisfy his conscience, and shelter himself behind a strictly literal obedience.'
This monstrous outrage upon justice falsified the first count, by declaring that acts had been done which were denied on oath, not only by those charged, but by the churchwardens and other members of the congregation, who must have seen them if they had taken place; and violated the laws of English and of common sense by putting an untenable gloss on the word 'bow,' to make it include the forbidden prostration; and which made it a chief ground for censuring the defendant that he had followed the invariable rule of law in construing a penal sentence in the most literal manner. One remark upon the condemnation of any kind or degree of elevation, beyond what is necessarily involved in the act of the priest taking the paten and chalice into his hands, as enjoined by the rubrics, will not be out of place. In the 'Essays and Reviews' suit, the charge against Mr. Wilson that he had offended against the formularies by denying the eternity of future punishment was dismissed by the Court on the ground that the omission from the Thirty-nine Articles of the clause in Edward VI.'s Forty-two Articles, condemnatory of such as denied that tenet, is fatal to a prosecution of any such persons; even though it be not disputed that no corresponding change in the doctrine of the Church, so as to bring it into agreement with such denial, has taken place.
Now, the case of elevation is legally identical with this; for it was prohibited explicitly in the First Book of Edward VI.. but the prohibition was struck out in the Second Book, and has never been replaced. Nor can the last clause of Article XXVIII. be imported into the question, as helping to decide it. For that document is not a law or rubric affecting the conduct of public worship; it confines itself to making a statement of an historical kind, and contains no words declaring any of the four usages it mentions in connection with the Holy Eucharist (reservation, carrying about, lifting up, and worshipping) cither illegal or even morally wrong; and there is besides one convincing piece of contemporary evidence by way of practical exposition of its degree of bearing upon the point at issue: that in the Latin Prayer Book, issued in Elizabeth's reign for use in the Universities, there is a rubric prefixed to the office for the Communion of the Sick, as follows:
If the sick person cannot come to church, and asks that the Sacrament may be given him at home, he is to signify the day before or early in the morning to the parish priest how many are willing to communicate with him.
And if it happen that the Lord's Supper is celebrated in the church that same day, then the priest shall reserve so much of the Sacrament in the Supper as suffices for the sick person, and presently, when the Supper is ended, lie shall go to the sick person, together with some of those who are present, and shall first communicate those who are tending the sick person, and were present at the Supper, and lastly with the sick person.
Here, then, are two of the usages named in Article XXVIII., to wit, reservation and carrying about of the Sacrament, expressly enjoined, and the book so enjoining them continued in legal use till a date long subsequent to the promulgation of the Thirty-nine Articles; whence it follows that as Article XXVIII. cannot be construed as forbidding reservation and carrying about, it cannot be construed as forbidding elevation or worship cither, seeing that all four acts are on precisely the same footing in that Article.
An attempt was made by the faction in whose interest this judgment was delivered to palliate its iniquity, by alleging that it merely aimed at foiling Mr. Mackonochie's disingenuous evasions of the previous monition; but to this he made a conclusive reply in the letter which appeared in the 'Church Times' of December 9, 1870.
The services were carried on without any change during the term of Mr. Mackonochie's suspension, and resumed by himself at its close precisely as before, but no fresh action was taken thereupon by the prosecution at that time. However, at the annual meeting of the Church Association on March 27, 1874, the chairman informed the audience that a fresh suit was to be instituted against Mr. Mackonochie, not only renewing all the former complaints, but introducing a new count, that of having erected a confessional in the church, and given notice of the times at which confessions would be heard. Hereupon, the congregation of St. Alban's began to take measures to protect themselves against such external interference with their concerns; and the first step taken, under the advice of the Bishop, was the removal of a large crucifix, which had been employed during the then recent mission of 1874, and also that of the curtains hung up to secure privacy for persons coming to confession at the church. But as these concessions in no degree checked the advance of the fresh litigation, the congregation held a large meeting, and addressed a memorial to the Bishop, to which the following Memorial and Protest against the interference with religious liberty were appended, both documents being signed by nearly two thousand communicants:
To the Right Reverend Father in God, the Lord Bishop of London.
The humble Petition of the undersigned Parishioners and Members of the Congregation of the Parish Church of St. Alban the Martyr, Holborn,
I. That your Petitioners learn with great sorrow that the clergy and congregation of the above church are threatened with a renewal of the annoyances and prosecutions to which they have been before subjected with regard to certain observances which are highly esteemed by them as exponents of the Catholic Faith professed by the Church of England.
II. That your Petitioners, knowing from past experience the grievous injury done to the work of the parish by that which they deem to be an unwarrantable interference with their privileges as loyal members of the Church, and fully believing in your Lordship's sympathy with every work which tends to the glory of Almighty God and the salvation of souls, beg very respectfully to lay the following statement before your Lordship:
(a) This petition emanates solely from the laity who worship at the Church of St. Alban the Martyr, and they have taken this step in order to show to your Lordship that they consider themselves deeply aggrieved.
(b) The ritual that has been gradually developed has been requested at each successive stage by the laity, so that there is no pretence for saying that it has been forced upon an unwilling, congregation.
(c) We feel that the interest taken by us in the work of the parish sufficiently warrants us in petitioning your Lordship; and although unwilling to speak of our personal deeds, we cannot on this occasion forbear to state that a great amount of actual work is done by the laity, and that a very large sum of money, not less than 50,000l., has been expended during the past eleven years upon the services of the church, the schools, and various works of mercy.
(d) We firmly believe in all the doctrines of which ritual is but the outward sign. We value lights, incense, and kneeling, because they teach the Real Presence of our Blessed Lord in the Holy Eucharist. We lament the removal of the Crucifix, because it so eloquently preached Christ crucified. And we regret the removal of the Confessionals, which has been caused by an interference which is inconsistent with religious liberty.
(e) We feel that if the opposition be honest, it is aimed rather at doctrine than at ritual; so that while we have the plain words of the Prayer Book to teach us the former, we claim the right of having the latter to set it forth more clearly.
(f) We further believe that the ritual used is entirely in accordance with the law of the Church of England, and with the spirit of the Prayer Book, which cannot be interpreted by the neglect of past years, and upon which the conflicting judgments in recent suits throw no light whatever.
III. That your Petitioners in laying this statement before your Lordship, simply ask for toleration. And that they pray your Lordship to protect the priests of this church, whose self-denying labours have, under the blessing of Almighty God, resulted in such a marked way in the spread of our Holy Religion and in the due observance of its ordinances.
And your Petitioners will ever pray, &c.
To the Right Reverend Father in God, the Lord Bishop of London.
My Lord,--Before the preceding Memorial could be presented, we learnt that a prosecution had commenced, and therefore venture to protest to your Lordship, as strongly as we can, against the course adopted by our opponents, and to submit that we feel most deeply in the first place, the great evil which must result to this parish from the interference with the work of our priests; and secondly, our annoyance at the attack on religious liberty to which as Englishmen we feel that we are justly entitled.
My Lord, this question touches the laity very deeply. We ourselves feel that the time has arrived when we must speak and act publicly in this matter, and declare that we fully believe in all those doctrines which are really being attacked under the pretence of an attack on the outward symbolism of ritual. In this belief, my Lord, we do not stand alone; there are thousands of members of the Church of England who think as we do; and we venture to assert that the events of past years point unmistakably to the fact that the laity will not be content unless their faith is set forth by a corresponding ritual.
In conclusion, we declare our unfeigned devotion to our branch of the Church Catholic. We beg your Lordship to remember that the Church of England has under its present constitution always embraced men of various schools of thought. And we venture to leave in your Lordship's hands this our strongest possible protest, desiring only that liberty and toleration which is extended to all other schools in the Church.
We must consider this letter, together with the draft Memorial and your Lordship's reply, as intended for publication.
We are, my Lord, your Lordship's humble and faithful servants.
But neither these documents themselves nor the oral remonstrances of the deputation which presented them prevailed with Bishop Jackson to withdraw his sanction from the new proceedings, and they came on in due course in the Court of Arches, where Mr. Mackonochie appeared under protest.
The charges were: use of lighted candles during morning prayer; undue elevation of the paten and chalice; processions with banners, crucifix, and candles; singing the Agnus Dei after the Consecration; making the sign of the cross; kissing the Prayer Book; wafer-bread; vestments; and the eastward position.
An acquittal was pronounced upon the charge of undue elevation, but Mr. Mackonochie was condemned to six weeks' suspension upon all the remaining counts.
Mr. Mackonochie at first entered an appeal against the judgment, but subsequently withdrew it, and addressed a letter to the Bishop, giving his reasons for so acting.
Upon the sentence of suspension taking effect, the congregation of St. Alban's addressed the following protest to the Archbishop of Canterbury:
May it please your Grace:--We, the undersigned, churchwardens, parishioners, and members of the congregation of the church of St. Alban the Martyr, Holborn, desire to make a respectful remonstrance and protest to your Grace against the sentence of suspension pronounced in the Court of Arches against the Rev. Alexander Heriot Mackonochie, vicar of this parish, as being morally indefensible upon several distinct grounds:
I. In the first place, the sentence has been obtained on the promotion of the office of the judge by one person only, namely, Mr. John Martin, who is not legally a parishioner, such as even the Public Worship Regulation Act requires as a complainant, and who has no moral claim to interfere, as he has never been a worshipper at the church of St. Alban, nor has contributed a penny towards its expenses.
II. On the other hand, a large and devout congregation, averaging 700 persons, and amounting in the aggregate to 2,000 persons, accepts entirely Mr. Mackonochie's view of the matters in dispute, and has testified its sincerity by contributing upwards of 50,000l. to the church expenses.
III. Whereas Mr. Mackonochie, whose blameless character is undisputed even by his chief opponents, and whose pastoral diligence has won high commendation from those best fitted to judge, has been singled out for repeated prosecution for what, at the worst, is over-zeal for the beauty and order of divine worship; on the contrary, no attempt whatever is made to bring legal coercion to bear upon clergymen notorious either for immorality, for gross neglect of duty, or for defiant violation of what they confess to be the law; several of whom receive, not merely impunity, but countenance and encouragement from those in authority.
IV. That Mr. Mackonochie cannot be justly charged with resistance to the law, nor with obstinate refusal to modify his practice, since he made at once and without difficulty, though sorely against his own wishes and convictions, many concessions in the mode of performing divine service on the injunction of the Court of Arches, which other clergymen who have never been presented have never made at all; so that under these circumstances he was fairly entitled to consideration which he has not received.
V. That several of the matters upon which the sentence of suspension rests are in truth unsettled, are under discussion by the lawful assemblies of the Church in both provinces, and are likely to be made the subject of speedy future legislation, so that it is contrary to public policy to make them the ground for criminal prosecution now.
VI. That the Court of Arches, in pronouncing sentence, followed, as a matter of precedent, the finding of the Judicial Committee of the Privy Council in the case of Hibbert v. Purchas; a finding in an undefended suit, marked throughout with the strongest partisan bias, disfigured by serious misquotations, interpolations, and misconstructions of the evidence to which it professes to refer, widely discredited amongst the legal profession, and openly disavowed in more or less of its statements and conclusions by such eminent lawyers as Sir John Taylor Coleridge, Lord Coleridge, Lord Cairns, and Lord Selborne.
On all these grounds therefore we appeal to your Grace against Mr. Mackonochie's suspension, as having no moral ground whatever, and a legal ground which is not only much disputed, but which few competent authorities believe to be as much as tenable.
The correspondence which ensued is here appended:
Lambeth Palace, S.E., June 26, 1875.
Sir,--I beg leave to acknowledge the receipt of your letter, dated the 23rd instant.
You inform me that 'at the request of the churchwardens of the parish church of St. Alban the Martyr, Holborn, in the diocese of London, you forward to me a copy of a protest against the suspension by the Court of Arches of the Rev. Alexander Heriot Mackonochie, vicar of the said parish, which was adopted at a meeting of the congregation held on Monday, the 21st instant;' and you further request me 'to appoint a day, after the 5th of July, when it will be convenient to me to receive a deputation to present the protest in due form, with signatures thereto.'
I have read the printed copy of the protest which you have forwarded to me, and must point out that it would be quite inconsistent with my duty formally to receive the document in question. You appear to desire to appeal to me personally against the decision of the Judge of my Provincial Court, and to cast the gravest censure upon the judgment pronounced by him as Official Principal of the Metropolitan.
The constitution under which we live in Church and State has provided proper means whereby any proved violation of duty on the part of a judge may be dealt with. On this point the best way to inform yourselves how to proceed, supposing you are convinced that there has been any miscarriage of justice, will be, if you think it necessary to do so, to consult your legal adviser; but the reception of such a protest by me individually would be a most irregular proceeding, and could lead to no good result.
I shall however be always ready to give my best advice to any members of the Church of England who may desire it, provided I am approached in a way consistent with the constitution of our Church; and if there is any point on which you at present desire my counsel, I shall be glad to advise you to the best of my ability.
Believe me to be yours faithfully,
A. C. Cantuak. G. R. Jellicoe, Esq.
My Lord Archbishop,--I am directed by the churchwardens of the parish church of St. Alban the Martyr, Holborn, acting on behalf and with the authority of the congregation, to acknowledge the receipt of your Grace's letter of the 26th June, declining to receive a deputation with protest against the suspension of Rev. A. H. Mackonochie.
I am further instructed to beg of your Grace to reconsider your purpose, and to lay before you some comments upon your letter which may perhaps induce you to do so.
1. Your Grace observes that it would be inconsistent with your duty to receive an appeal against the decision of the Judge of your own Provincial Court, which involves the gravest censure upon him. I am instructed to remind your Grace that you made no difficulty, on May 5th, 1870, in receiving and welcoming a deputation whose practical object was to protest against the acquittal of Mr. Bennett, in the case Shepherd v. Bennett, both by your Official Principal and by the Final Court of Appeal, and to complain of the toleration thus allowed to a great historical school within the Church of England; and further, to point out that if we were indeed bringing a charge against your Grace's Official Principal, it would in that case be your Grace's imperative duty to receive it, inasmuch as that officer is directly responsible to your Grace for the fitting discharge of his duty, and you would therefore be the proper person to call him to account for any malversation of his office.
But we allege no graver charge against Sir Robert Phillimore than that of his having given a piece of mere professional etiquette the preference over the superior duty of rightly interpreting the ecclesiastical law of England.
What we ask of your Grace is to uphold the decision of your Official Principal in the case of Hibbert v. Purchas, which has been set at nought and overridden by the Judicial Committee of the Privy Council, whereby your Grace's authority in your own Court has been materially infringed and lowered in the eyes of the public.
We desire to remind your Grace that the finding of the Judicial Committee in the case of Hibbert v. Purchas, upon which the suspension of the Rev. A. H. Mackonochie rests, is a patent and notorious miscarriage of justice, which, to use your Grace's own words, 'misinterprets the law for unrighteous party purposes.'
It is no part of the 'constitution under which we live in Church and State,' to which your Grace refers us, that four men should be empowered to set aside the statute law of the realm, when, and because, it happens to conflict with their private bias in matters of religion.
Not merely does the judgment in Hibbert v. Purchas directly conflict with that in Liddell v. Westerton (delivered by a Committee much more respectable for numbers, attainments, and character), which laid down explicitly that the same dresses and utensils which were used under the First Book of Edward VI. may still be used; and with that in Martin v. Mackonochie, which ruled that the words 'standing before the Table' apply to the whole rubric of the Prayer of Consecration; but the notion of bad faith is inevitably suggested by its incessant misquotation of the documents to which it professes to refer as evidence.
Errors on points of religious opinion, such as those which disfigure the obiter dicta of the Privy Council judgment in Shepherd v. Bennett, may be reasonably ascribed to unfamiliarity with theology and to unconscious prepossession; but a much more charitable hypothesis is needed to palliate continual misrepresentation of plain matters of historical and legal fact, which misrepresentation, moreover, in order to be even colourably plausible, has to rest on inaccurate citation of the evidence in several particulars. We may draw your Grace's attention especially to the manner in which the word 'only' has been twice interpolated after the word 'surplice' in two separate documents (i.e. the Advertisements of 1564, and the Canons of 1603), so that it appears that the exclusive use of that vestment was intended; and to the substitution of the date 16S7 for 1627, when it was sought to show that Cosin's visitation articles supplied a comment on the Rubric of 1662 unfavourable to the action of Mr. Purchas. We are not unaware that an attempt has been made to deny the existence of this last-mentioned error in the original text of the judgment, and to ascribe it to a mere misprint in unofficial copies; but such denial is confuted, not only by the authoritative documents themselves, but also by the internal proof that the true date, 1627, would have been quite useless for the matter in hand, which was to show how the Rubric of 1662 was subsequently construed by the person supposed to have framed it.
2. Your Grace is good enough to point out to us that the Constitution provides 'proper means whereby any proved violation of duty on the part of a judge may be dealt with.' We are not unaware of this fact, but as the persons inculpated in this case are members of the House of Lords and of the Final Court of Appeal, the means are practically limited to impeachment, and we beg to point out that your Grace, as the chief official of the body whose laws and discipline have been thus trenched upon, is the proper person to make that impeachment from your place in the Upper House of Parliament.
But your Grace's duty in the matter has yet a deeper basis than that of your rank as Primate of the Established Church. Your Grace is also the chief minister of the Christian religion in this country, and should therefore be principal guardian of morality and piety. No sin save the shedding of innocent blood is so sternly denounced in Holy Scripture, and has such awful penalties threatened against it, as the wresting of judgment and the condemnation of the guiltless.
That this sin has been committed, in its very gravest form, by the Judicial Committee of the Privy Council is widely believed by a powerful section of the English people, and any attempt to stifle inquiry will be very perilous to the characters of those who resolve on such a line of policy, and to confidence in the integrity of our highest courts of law.
Your Grace, by receiving our deputation and furthering its prayer, will deliver yourself from this responsibility, and will materially aid in vindicating that justice which has now been denied to faithful members of the Church of England.
On these and other grounds, I am requested to repeat the prayer contained in my first letter, that your Grace will be pleased to appoint an early date on which it will be convenient to receive a deputation.
I am, my Lord Archbishop, Your Grace's humble and obedient servant,
Geo. R. Jellicoe, Hon. Sec. to the Committee in the above matter.
Lambeth Palace, S.E., July 9th, 1875.
Dear Sir,--I beg leave to acknowledge the receipt of your letter of July 4th, in which you repeat the request contained in your previous letter of June 23rd, that I will appoint an early day to receive a deputation from the churchwardens and parishioners of St. Alban the Martyr, Holborn, to present a protest against the suspension by the Judge of the Court of Arches of the Rev. A. H. Mackonochie; and in which you urge various reasons why I should comply with your request. On carefully considering your second letter, I am constrained to abide by my previous decision, and I can give no other answer to your request than that which is contained in my letter to you of the 26th June.
I would, however, repeat what I have already stated, viz., that I shall be ready to give you my best advice in the difficulties which you at present feel, provided that I am approached in a way consistent with the constitution of our Church.
Believe me to be, dear Sir, Yours faithfully,
G. R. Jellicoe, Esq. A. C. CANTUAR.
14, Clement's Inn, W.C., London, 13th July, 1875. To his Grace the Lord Archbishop of Canterbury. My Lord Archbishop,--On behalf of the Committee of the congregation of St. Alban the Martyr, I have to acknowledge the receipt of your Grace's letter of the 9th instant, and I am now instructed to say that we regret that your Grace still adheres to your decision not to receive our deputation. We had hoped that your Grace would have been willing to listen to an alleged grievance of even the humblest members of the Church in which you hold the highest office, more especially as that grievance arises from the fact that the Judge of your own Court has adopted the decision of the Judicial Committee of Privy Council in the case of Hibbert v. Purchas, the injustice of which is notorious, and which is more widely discredited every day; and we are at a loss to conceive how we could act in any way more in accordance with the constitution of our Church. The only course now left open to us, therefore, is to publish the correspondence with your Grace.
I am, my Lord Archbishop, Your Grace's humble and faithful servant,
Geo. R. Jellicoe, Hon. Sec. to the Committee in the above matter.
The Bishop of London took practically the same line as his superior, and directed Mr. Stanton, the senior curate of St. Alban's, to carry on the services upon the lines of the Purchas judgment during the term of Mr. Mackonochie's suspension; a proceeding which drew forth a strongly-worded remonstrance from the Committee of laymen acting for the congregation, who reminded the Bishop that he could not possibly believe the Purchas judgment to be an honest exposition of the law, and that he had thus no moral right to enforce it; while Mr. Mackonochie also addressed an individual remonstrance to a similar effect, further pointing out that whereas the Purchas judgment told against every school, nay, every clergyman in the Church of England, it was nevertheless put in operation against those of one school exclusively, while entire impunity was granted to all others. After the close of the term of suspension, there was a virtual truce for a time, so far as St. Alban's, Holborn, was concerned, but a circumstance connected with another of the Puritan prosecutions, that of Mr. Tooth, calls for mention, as having a direct bearing on the closing incidents of the long-protracted litigation of which Mr. Mackonochie had been made the subject.
It was incidentally remarked that the Public Worship Regulation Act, as passed against the express protest and repudiation of Convocation, has never been a valid statute of the realm, being in conflict with Magna Charta and the Statute of Appeals, and certainly not cured of this defect by the votes given for it by Bishops in the House of Lords, since they sit there not as officers of the Church, but as temporal barons, in which capacity they have no spiritual powers. But it was not then added that the two Archbishops who engineered the Bill were bent on disguising the real character of the tribunal to be set up under it, in order to prevent the clergy from noting that a very grave encroachment upon the liberties of the Church was thus being made by the civil power. If it could be made to appear that nothing more was effected by the Bill than to modify the procedure of the ancient ecclesiastical Courts in particulars where the assent of the lay Parliament was clearly necessary to give coercive legality to such changes, they introduced clauses into the draft that upon the avoidance of the judgeships of the Provincial Courts of Canterbury and York, the judge of the new Public Worship Regulation Act Court should succeed to both vacancies, and exercise all jurisdiction thereto attached; and that, as regards the Province of Canterbury, proceedings taken in this Court should 'be deemed to be taken in the Court of Arches.' From the date of the passing of the Act, then, Archbishop Tait invariably professed to speak of the new Court as though it were the old tribunal, and Lord Penzance, the person whom he and the Archbishop of York selected as a suitable instrument for their purpose, has systematically posed as Dean of Arches, and given himself out as such, from the time when the contingency provided for in the Act became fact by the resignation of Sir Robert Phillimore.
But when Mr. Tooth's case for wrongful imprisonment came before the Queen's Bench Division, represented by three exceptionally strong Judges, Chief Justice Sir Alexander Cockburn, and Justices Mellor and Lush, on November 19, 1877, this very contention, that Lord Penzance had tried the case as Dean of Arches, was adduced by the counsel on his part. But the Chief Justice said:
This Act--the Public Worship Regulation Act--is the foundation of a new jurisdiction. Mr. Benjamin has argued that the jurisdiction of the Dean of Arches is not touched by this Act; but it is not as Dean of Arches that Lord Penzance has this jurisdiction. . . . The jurisdiction is the creation of the statute; ... it is undoubtedly, to my mind, an entirely new office, and one with which no former Dean of Arches had anything to do.
Justice Mellor was not less emphatic in refuting the pretended claim. He said:
I cannot doubt that it had occurred to Parliament that the existing law and tribunals were not sufficient to meet the exigencies of the case, and that what was to be done was not merely to improve and extend the jurisdiction of the Dean of the Arches, but to erect an entirely new tribunal, which has no relation at all to the office of Dean of Arches.
And when to these weighty words the fact is added that in the only patent ever conferred upon Lord Penzance for his new office he was not named Dean of Arches, it is plain that he never has enjoyed that dignity, and that the claims he still lays to it are untenable; so that he is merely the secular judge of a secular (and therefore illegal and unconstitutional) Court for the trial of spiritual causes which it is not competent to evoke before it.
The importance of these considerations is due to the fact that when the prosecution of Mr. Mackonochie was resumed after a brief interval, it was under the Public Worship Regulation Act that proceedings were taken, and in Lord Penzance's Court that the issues were tried.
In March 1878 an application was made to Lord Penzance to enforce upon Mr. Mackonochie the monition issued by Sir Robert Phillimore in 1875, already cited. But Lord Penzance said that as no attempt had been made on the part of the prosecution to get the monition enforced within a reasonable time after its issue, being content to let it lie dormant for some years, he would pronounce no fresh sentence then, but would give Mr. Mackonochie the opportunity of conforming himself to the decisions affecting him, on the understanding that a severe sentence would be passed in the event of his refusing to do so; and, while thus refusing the application, sentenced Mr. Mackonochie to pay the costs of it. The application was renewed upon June 1, 1878, and upon evidence being adduced that Mr. Mackonochie had not in the meantime conformed to the monition, Lord Penzance sentenced him to suspension ab officio et bencficio for three years. The technical ground upon which this sentence was based was that the monition appended to the earlier finding was of the nature of a perpetual injunction, so that any breach of it constituted a continuance of the former offence, and could be dealt with under the judgment already delivered, not requiring a fresh suit to be instituted. But the Queen's Bench Division held that this reasoning was unsound, and granted a writ of prohibition to Mr. Mackonochie against the sentence of Lord Penzance, on the ground that an entirely fresh trial should have preceded the issue of any such sentence. And the Chief Justice specifically added, in reference to the precedent set by the Judicial Committee by its suspension of Mr. Mackonochie for three months for contumacy, that the Court then 'usurped an authority it did not possess,' and delivered a judgment 'contrary to fundamental principles.' The former of these two charges against the Privy Council was explained thus by Sir Alexander Cockburn:
The authority and power of a Court of Appeal, however high its position, can be no greater than those of the Court appealed from. It can annul the judgment, or it can confirm it, or in some cases it can reform it; but it can pronounce only the judgment which the Court below should and could have given.
And no precedent for any similar sentence pronounced by the old ecclesiastical Courts could be produced, as was acknowledged even by the very wording of the judgment which was thus illegally delivered. This finding of the Queen's Bench Division was appealed against, and was reversed in the Court of Appeal by a majority of one in a court of five Judges on June 28, 1879; whereupon, as Mr. Mackonochie declined to appeal at this stage to the House of Lords, the sentence of suspension for three years was pronounced anew in the Public Worship Regulation Court by Lord Penzance on November 15, 1879, to take effect upon November 23 next following. Upon that day, a Sunday, the Rev. W. M. Sinclair, a chaplain of the Bishop of London, accompanied by Mr. Lee, the Bishop's secretary, presented himself at St. Alban's Church, and tendered a licence which the Bishop had issued to him, appointing him curate-in-charge, to conduct the services during the continuance of the suspension. Mr. Mackonochie declined to acknowledge the validity of either the suspension or his own supersession as minister of the church, and Mr. Sinclair withdrew, no further steps being taken at the time.
In June 1880 a fresh application was made to Lord Penzance to decree deprivation against Mr. Mackonochie for having disregarded the various decisions against him, but it was dismissed on the ground that no steps had been taken to enforce the former decree of suspension, and that the Court could not well issue a second sentence of a different kind while its previous finding remained inactive. Mr. Mackonochie appealed from the decision of the Court of Appeal to the House of Lords, which dismissed the appeal with costs on April 7, 1881, and affirmed the three years' suspension pronounced in 1878.
On the other hand, Lord Penzance's judgment, refusing to pronounce deprivation as a punishment for continued disobedience to the monition issued to Mr. Mackonochie, was appealed from by Mr. Martin, and the Privy Council, on February 3, 1882, reversed that finding, remitting the case anew to Lord Penzance to decree punishment. Before this matter proceeded any further, Mr. Mackonochie, acting on the counsel of the Archbishop of Canterbury, resigned the incumbency of St. Alban's, and was appointed, with the consent of the Bishop of London, to that of St. Peter's, London Docks, thus legally ending all proceedings against himself in his quality of incumbent of St. Alban's. Nevertheless, when the suit came once more into the Public Worship Regulation Act Court, Lord Penzance declared that no substantial change was made in the situation by this avoidance of the benefice, that if Mr. Mackonochie had been unbeneficed, the appropriate sentence would have been perpetual inhibition from officiating, but that as he held some benefice, it was immaterial where it was situate, and that sentence of deprivation should accordingly be pronounced, as was clone then and there, July 21, 1883. The Bishop of London soon afterwards issued a writ of sequestration to the churchwardens of St. Peter's, London Docks, appointing them sequestrators during the vacancy thus occasioned; but no overt act followed to remove Mr. Mackonochie, and he continued in possession of the incumbency till he resigned it on December 31, 1883, thereby, as the event proved, terminating his official connection with the temporal side of the Established Church, and so wherewith, but so only, bringing to a close the rancorous persecution with which he had been harassed for more than sixteen years, with no support from those whose duty it was to have upheld him in his compliance with the ecclesiastical laws of this Church and realm.
It is plain, from the details thus accumulated, that a persistent miscarriage of justice marked the proceedings from the first, and that a travesty of law was all that the Courts concerned vouchsafed to administer. And the conclusion hence is that the whole application of the Royal Supremacy in the ecclesiastical sphere has become disorganised, and is in need of wholesale reform and reconstruction.
The facts are simply that, while the personal supremacy of the Sovereign is still the legal theory in both Church and State, yet for the temporal side of government this has long been fundamentally modified, and the Sovereign now exercises supreme authority, not directly, but through the instrumentality of Ministers virtually elected by Parliament, to which they are responsible, as well as to the Crown. But as the Church is a body politic in itself, diverse in origin, and in the nature of its sanctions, from the civil society of the nation, the Sovereign must act in the same manner towards it. Unless it is merely a department of the Civil Service, it cannot be constitutionally brought under the supremacy of Parliament, to which it owes, upon its spiritual side, no allegiance whatsoever, though Parliament can unquestionably enact laws affecting its temporal accidents. No statute can be adduced merging the Church in the State, or transferring the rights and liberties of the Church to the State, nor the powers of the Crown over the Church to Parliament. And therefore it may at the very least be said that the largest and most ancient religious body in the country is entitled to as much freedom in the management of its own internal concerns as any of the sects tolerated and protected here, and which are to the full as much 'established' by that legal fact. That Parliament has failed when endeavouring to legislate for the Church is openly manifest and indisputable: the laws affecting ecclesiastical matters have been clumsily and ignorantly drafted, and have proved futile too often, when they have not been actively mischievous; the tribunals set up by the State for the trial of ecclesiastical causes have become a by-word for gross imcompetence and grosser partisanship; the whole system is branded with disgrace and failure.
What is needed is simply the recognition of the change which has passed over society since the laws which originally erected the Royal Supremacy were enacted, and the reconstitution of the relations between the Crown and the Church on those yet older bases which are practically identical with those now admittedly the only valid ones in the civil sphere, namely, that the Crown may not act despotically, nor through any alien instrumentality, but must govern through ministers belonging themselves to the body politic which they administer, and responsible to that body for any malversation in office. But a mixed Parliament, containing a large element which is outside the Church of England, an element which may quite conceivably at any given time constitute a majority in the Legislature, and which must always contain a considerable body of non-English members having no direct concern with the Church of England, is for the purpose in hand an alien agency, and not constitutionally fit to intermeddle with the internal concerns of the Church. Free election of Bishops, granting the Crown a vote; free Convocations, as unfettered in their sphere as the lay Parliament, which they far exceed in age, and of which they served as the model; and freely constituted ecclesiastical Courts, in which it shall be impossible for judges to sit who are totally ignorant of the system they are called on to administer; such are the necessary factors in any wholesome reform, which shall readjust the relations now disorganised and thrown out of gear by the incapacity or the bad faith of Crown nominees in high places, of Church and State alike.