Project Canterbury

REPORT OF THE ROYAL COMMISSION ON ECCLESIASTICAL DISCIPLINE.

Presented to both Houses of Parliament by Command of His Majesty
1906.

transcribed by Mr Thomas J W Mason
AD 2001


CHAPTER X.
CAUSES OF THE FAILURE TO
CHECK IRREGULARI
TIES, AND SUGGESTED REMEDIES
.

Though in the above narrative we have endeavoured to indicate the main incidents in the ritual controversies of the last half-century, we have no means of making a detailed or exact statement respecting the increase of particular usages during successive years; and we believe that precise information upon this point cannot be obtained [In this context we would again refer to the information contained in the ñTouristÍs Church Guide,î 1902 (see paragraph 90).]. The fact of that increase, however, if undoubted; and we now proceed to inquire how and why the existing methods have been unsuccessful in checking irregularities by such discipline, control, and repression as occasion might require.

At the outset it must be recognised that, in proportion as the requirements of the law are minute, the range of possible disobedience is increased. It will be seen from what has already been stated that the public worship of the Church of England should be regulated by one fixed standard, laid down once for all, and to be maintained in all places and for all time without excess or defect, has never been carried out in practice. The inclination, characteristic of the temper of the sixteenth century, to ignore all varieties of feeling and opinion existing among men of the same generation, and to make no provision for changes of feeling and opinion as one age succeeded another, is one far-reaching cause of irregularity. In the sixteenth century, when the requirement of uniformity in the Church of England received the form which it has ever since retained with little alteration, the ideas of religious liberty and toleration were, in Church and State alike, unrecognised, if not indeed unknown. In Church and State alike these ideas have now won their way to undisputed prevalence; and in the general life of the nation almost every restriction or disability which was at conflict with them has been removed. Doubtless, in the public worship of a national Church the ideas of religious liberty and toleration are rightly bounded by the limits proper to that Church. It is nevertheless incongruous that the precise and uniform requirements which were in harmony with the Elizabethan ideas of administration should still stand as the rule for the public worship of the Church, under altered conditions and amidst altered ways of thought. While a large comprehensiveness in matters of doctrine has grown up, the rigidity of the law as to the rites and ceremonies of the ñopen prayerî which is for all ñto come untoî has been maintained. The result has been a widespread disobedience to the letter of the law, which, though acquiesced in, in quiet times, has made the enforcement of uniformity, when startling innovations rendered appeal to the law inevitable, difficult and invidious. It has proved impracticable to obtain complete obedience to the Acts of Uniformity in one particular direction, because it is not now, and never has been, demanded in other directions.

Another strongly operative cause of the failure to secure obedience to the law has been the constitution of the court of Final Appeal for ecclesiastical causes. Much attention has been devoted during the last generation to the subject of Ecclesiastical Judicature generally, and especially to the history of its development in England. There has resulted a clearer perception of the functions which are appropriate to a Court exercising the Royal supremacy in ecclesiastical causes, whether it be the Judicial Committee of the Privy Council or any other tribunal. It is recognised that the authority exercised by this Court of that of the Crown and not that of the Church. Without being itself a Church Court and without pretending to possess spiritual jurisdiction, it has the duty of revising, where necessary, judgments given in Church Courts possessing spiritual jurisdiction. To quote the Report of the Ecclesiastical Courts Commission (1883): ñEvery subject of the Crown who feels aggrieved by a decision of any [spiritual Court] has an indefeasible right to approach the throne itself with a representation that justice has not been done him, and with a claim for the full investigation of his cause.î But, while there must be an appeal to the Crown from the Church Courts, it is not meant that ñKings and Queens in their own proper persons are by judicial sentence to decide the questions which rise about matters of faith and Christian religionî„a proposition which Hooker described as ñabsurd.î According to the same authority the Sovereign exercises his power ñin far other sort than such as have ordinary spiritual power.î The preamble of 24 Henry VIII., cap. 12, declares that the final determination of matters and jurisdiction to render justice belongs to the King, who, nevertheless, if any cause of the law divine or of spiritual learning happen to come in and question, is to have it declared, interpreted, and showed by the spirituality, or English Church. Coke, writing early in the seventeenth century, states this statute to be declaratory of the ancient laws of England, and asserts that, ñas in temporal causes the King by the mouth of the judges in his Courts of Justice doth judge and determine the same by the temporal laws of England, so in causes ecclesiastical . . . cognisance whereof belongs not to the common laws of England, the same are to be determined and decided by ecclesiastical judges according to the KingÍs ecclesiastical laws of this realm.î Article 37 states the position in a few words thus: ñWe give not to our princes the ministering either of GodÍs Word or of the Sacraments . . . . . but that only prerogative which we see to have been given always to all godly princes in Holy Scriptures by God himself; that is, that they should rule all states and degrees committed to their charge by God, whether they be ecclesiastical or temporal, and restrain with the civil sword the stubborn and evil doers.î Queen Elizabeth in the draft ñDeclaration of the QueenÍs proceedings since her reign (1570),î disowns ñany superiority to ourself to define, decide, or determine any Article of point of the Christian faith and religion, or to change any rite, or ceremony of the Church from the form before received and observed by the Catholic and Apostolic Church, or that we do challenge or use any function or office belonging to any ecclesiastical prelate or person of what degree soever being a minister of the Word or Sacraments in the Church.î the Elizabethan Act of Uniformity, which gave authority to the Justices of Assize to inquire, hear, and determine cases of offences against uniformity, contained a further provision by which it was enacted that every Archbishop and bishop ñshall himself by virtue of this Act to the . . . . . Justices of Assize at every . . . . . sessions to be holden in any place within his diocese for and to the inquiry, hearing, and determining of the offences aforesaid.î Similar provisions were contained in the first Act of Uniformity, 2 and 3 Edward VI., cap. 1, sections 4 and 5.

We have not attempted to do over again the work of the royal Commission on Ecclesiastical Courts (1881-83), but we desire to refer to the Report of that Commission, in which the history of the complex relations of Church and State in England is stated with great care and learning.

Starting from these premises, the constitutional position which the final Court ought to occupy may, we think, be stated as follows:„

(1) It should be open to any party who conceives himself to have been denied justice in any Ecclesiastical Court to appeal to the Crown for remedy.

(2) This appeal to the Crown should be dealt with by a Court consisting of persons commissioned by the Crown and armed with the power of the State, whose function it should be to enquire whether the Church Courts, deriving their spiritual jurisdiction by delegation from the Bishops and depending on the State for the enforcement of their sentences, have properly exercised their authority.

(3) In hearing an appeal, the Crown Court should decide all questions of fact in contest between the parties, including the proper construction of words and documents (if any) which are the subject matter of the complaint.

(4) For the purpose of deciding whether the facts so ascertained establish that an offence against the doctrine or discipline of he Church of England has been committed, the Crown Court, when any question arises not governed by statute or other documents having the force of an Act of Parliament, ought to act on the advice of the Spirituality, which for this purpose is represented by the Bishops. The great lay judges who usually and suitably compose the Crown Court neither occupy such an official position in the Church of Christ as would give spiritual authority to their decisions, nor possess as a necessary qualification of office any special training in religious learning. It is reasonable, therefore, that, whenever the need arises, they should turn to those who, according to the constitution of the Church, have been appointed to be her chief teachers and who in fact possess the knowledge requisite to enable them to be so.

We observe that there has been some divergence between the course to which these principles would lead and the course which has in fact been taken, and that this divergence has grown more conspicuous in recent times.

The Court of Delegates, from 1533 to 1832, and the Judicial Committee of the Privy Council, from 1833 to the present time, have exercised the final appellate jurisdiction of the Crown in ecclesiastical causes. There has been no difference in principle between the two. Both have been Courts acting solely under the authority of the Crown. Both have dealt with appeals from Church Courts, and, so far as is known, with all sorts of such appeals. But the Court of Delegates was long over-shadowed and practically superseded by the High Commission. Though, so far as is known, few cases of doctrine or ritual came before the Court of Delegates, the Judicial committee has heard several important appeals involving such questions. In deciding these cases, the Judicial Committee has acted on its own view of doctrine and ritual, as stated in the formularies of the Church of England, without seeking to obtain the opinion of the Bishops as a body. Individual Archbishops and Bishops formerly sat in some cases as members of the Court, and since 1876 have sat with the Court as assessors.

It does not appear that similar action of the Court of Delegates, if it occurred, excited attention, much less opposition. It must be remembered that Bishops and canonists were more numerous and more prominent in the Court of Delegates in the sixteenth and seventeenth centuries than they have been in the Judicial Committee. Moreover, the distinction between Officers of the State and of the Church was much less sharply drawn in the days when the former were necessarily members of the Church, and high offices of State were sometimes held by ecclesiastics. In those days HookerÍs view of the Church and state, as but one body regarded in different capacities, was not inconsistent with patent facts. Whatever the explanation, it is the fact that, so far as is known, the Court of Delegates was not objected to as a Court of Appeal for ecclesiastical causes. But from the time of the Gorham litigation (1850), and even from an earlier date, there has been as already mentioned (paragraphs 333 to 353) a continuous and growing objection to the constitution of the Judicial Committee of the Privy Council as the Court of Final Appeal in matters of doctrine. That objection was stated by Bishop Blomfield in the House of Lords (June 3, 1850) as follows:„ ñIn all matters requiring judicial acuteness and calmness, impartiality and firmness, for the discovery of the truth of facts, and for the explanation and application of the law, nothing more is to be desired. It is only when questions of doctrine arise, and points of faith are to be determined, that I object to that tribunal as incompetent; it is competent to decide all questions of ecclesiastical law, but not matters purely spiritual, involving questions of divine truth; for this office it is not properly qualified, with reference either to the churchÍs original constitution, or to the personal qualifications of the judges. . . . But, my Lords, I would not be understood to rest my case entirely upon the probabilities of superior fitness in point of theological learning. I rest it also, and in the first place, on the inherent and indefeasible right of the Church to teach and maintain the truth by means of her spiritual pastors and rulers; a right inherent in her original constitution, and expressly granted to her by her Divine Head, on the terms of the Apostolical Commission . . . . . . I cannot conclude without protesting against an inference . . . . that I think lightly of what is in truth the fundamental and vital principle involved in this subject, namely, the inherent and inalienable right of the Bishop of the Church of England to be the judges of questions of its doctrine duly submitted to them.î

As time has passed, not only has the number of those who share Bishop BlomfieldÍs view greatly increased, but the area of criticism has been enlarged. The series of Privy Council judgments, which were given between the years 1868 and 1877, and which dealt with rites and ceremonies as distinguished from doctrine, extended to cases of ritual the objection which was felt to the Judicial Committee deciding questions of doctrine. The replies, evidently framed on this point in a settled form, which a large number of the clergy have made to the complaints of witnesses, well illustrate both the prevalence and intensity of the opposition to the present constitution of the Courts of final Appeal in Ecclesiastical Causes.

The result has been unfortunate in many ways. Bishops and others have been naturally slow to appeal to a court the jurisdiction of which was so widely challenged; clergymen have claimed the liberty, and even asserted the duty, of disobedience to the decisions of a tribunal the authority of which they repudiate; and judgments of the Judicial Committee, though at least the reasoned statement of very eminent judges, are treated as valueless because they are Privy Council judgments. A Court dealing with matters of conscience and religion must, above all others, rest on moral authority if its judgments are to effective. As thousands of clergy, with strong lay support, refuse to recognise the jurisdiction of the Judicial Committee, its judgments cannot practically be enforced. Those who most desire to repress irregularities are those who have most to gain by the substitution of an effective tribunal for a Court which, because it is powerless, encourages rather than represses disorder. The establishment of a Court, the authority of which could not be disputed, would destroy any foundation for the claim now in fact made by a section of the clergy to decide for themselves the limits of canonical obedience.

The recommendations of the Ecclesiastical Courts Commission in 1833 were designed to remove the difficulty by a reconstruction of the final Court without violation of constitutional principle. It is, in our opinion, to be regretted that so many years should have passed away without any effective effort to carry out the reforms thus suggested. These reforms have received a large amount of support from the Convocations; and the criticism upon them has been chiefly directed to the one point as to which we recommend a modification of the scheme of the Ecclesiastical Courts Commission.

The failure of the Court of final Appeal to command the obedience of the clergy is a source of inevitable weakness in the Provincial and Diocesan Courts. It is objected that these Courts are bound to adopt the rulings of the Crown Court which hears appeals from them; and that decision of the Provincial and Diocesan Courts based on judgments of the Judicial Committee cannot logically be accepted by those who repudiate the authority of the latter in spiritual matters. Further, although there are many point connected with the law of public worship as to which, there having been no decision of the Judicial Committee, the Provincial and Diocesan Courts may be said to have a more or less free hand, yet the clergy who do not accept the authority of the Judicial Committee complain that, if these Courts decide in their favour, the case may be carried by their opponents to the Judicial Committee, where conscience forbids their appearance; while, if the Provincial and Diocesan Courts decide against them, they have no Court of which, without sacrifice of principle, they can carry an appeal.

There are other reasons which, in the opinion of witnesses, hinder the effectiveness of the Provincial and diocesan Courts: the difficulty of applying the appropriate sentence (e.g., monition, suspension, deprivation) to a particular case: the unsuitableness of imprisonment, however inevitable in the last resort as the direct penalty for refusal to obey ecclesiastical sentences; the archaic character of the practice in Church Courts; the delay and expense of proceedings in those Courts: the lack of solicitors and counsel conversant with ecclesiastical law; the absence of the Bishops from the judgment-seat of their own Courts, and the want of any machinery for procuring the assistance of expert advisers on questions of doctrine and ritual; the want of sufficient means by which a Bishop, as distinguished from a parishioner, can take action to obtain the removal of ornaments illegally placed in a parish church, or to prevent the replacement of such ornaments after they have been removed; and lastly, and perhaps chiefly, the existence of the Episcopal veto, which makes proceedings against a clergyman in a Church Court impossible if the Bishop of the diocese decides to forbid them.

The alleged complication of ecclesiastical procedure, and the delay add expense supposed to be thus caused, are apparent, rather than real, defects. Any procedure which is rarely used is likely to be difficult, on account of its unfamiliarity. Ecclesiastical litigation, like all other litigation, is expensive where the notoriety of the particular case leads to the employment of eminent counsel, or where the obscurity of the matters in issue occasions investigation by experts. The lack of professional lawyers skilled in ecclesiastical law is the inevitable result of the decline of this branch of legal business, since matrimonial and probate cases were withdrawn from the cognisance of the Ecclesiastical Courts. The adoption of the recommendations of the Ecclesiastical Courts Commission with regard to Provincial and Diocesan Courts would, in our opinion, greatly strengthen those Courts, and make them fully adequate to discharge the work„of importance out of all proportion of its bulk„which the efficient administration of the law of the Church of England demands of them.

We have reprinted in Appendix G the recommendations of the Ecclesiastical Courts Commission which concern the Church Courts and the Court of Final Appeal. The most important of these recommendations, so far as we desire to adopt them, may be summarised as follows:„

The Diocesan Court is to consist of the Bishop and a Legal Assessor, who is to be his Chancellor, or some other person learned in the law, at the discretion of the Bishop. In cases of heresy or breach of ritual, as distinguished form misconduct or neglect of duty, the Bishop must sit in person with a Theological Assessor in addition to the Legal Assessor. This Theological Assessor is to be chosen pro häc vice by the Bishop with the advice of his Dean and Chapter, if there be any.

The Bishop may, if he think proper, send a case direct to the Provincial Court, if both parties consent. An appeal shall lie from the Diocesan Court to the Court of the Province.

In the Provincial Court, in cases of heresy or breach of ritual, the Archbishop is to determine in each case whether he will leave the case for the decision of his Official Principal, or will hear it himself. If he adopts the latter course, the Official Principal musty sit with him as Legal Assessor; and the Archbishop, if he thinks fit, may appoint to sit with the Court any number of Theological Assessors not exceeding five, being Bishops of the Province of Professors part or present of one of the English Universities. An Assessor is defined to be a person who advises the Judge but has no voice in any decision.

An appeal shall lie from the Provincial Court to the Crown; and the Crown shall appoint a permanent body of lay Judges to whom such appeals shall be referred. Every person so appointed shall, before entering on his office, declare that he is a member of the Church of England as by law established. the number summoned for each case shall not be less than five, who shall be summoned by the Lord Chancellor in rotation.

When, on appeal to the Crown, the judgment of the Church Court is to be varied, the case shall be remitted to the Court whose judgment is appealed against, in order that justice may be done therein according to the order of the Crown. On an appeal to the Crown, the Judges are not to be bound to state reasons for their decision; but, if they do so, each Judge shall deliver his judgment separately, and the actual decree shall be alone of binding authority; the reasoning of the written or oral judgments shall always be allowed to be reconsidered.

The Ecclesiastical Courts Commission further recommended in cases of heresy and breach of ritual as follows:„ñThe Judges shall have the power of consulting the Archbishops and bishops of the Province, or if thought advisable, of both Provinces, in exactly the same form as the House of Lords now consults the Judges of the land upon specific questions put to them for their opinion, and shall be bound so to consult them on the demand of any one or more of their number present at the hearing of the appeal.î The Court was not to be bound to adopt the opinion of the Archbishop and Bishops; the decision of every question in the case, both as to law and fact, resting entirely with the Court.

We have already stated our opinion (paragraph 358) that the Court must itself decide all questions of fact, including the proper construction of words or documents (if any) which are the subject-matter of complaint. The construction of Acts of Parliament and of all documents having the force of Acts of Parliament also belongs to the Court. We think, however, that in the case of any appeal raising questions of doctrine or ritual which, in the opinion of the Court, are not governed by the plain language of documents having the force of Acts of Parliament, but which questions involve the doctrine or use of the Church of England proper to be applied to the facts found by the Court, the opinion of the Archbishops and Bishops of the two Provinces should be taken upon questions submitted to them by the Court; and such opinion should be final and conclusive for the purposes of the appeal. We have in our recommendations formulated our suggestion on this matter, and we believe that a declaration of the law by a Court so constituted and advised would secure the obedience of the Church.

In the event of our recommendations being carried out, the Church Discipline Act, 1840, will require modification.

In order to complete the statement of our view as to the influence of the Ecclesiastical Courts and their procedure in producing the present prevalence of irregularity, it remains to consider what has been the effect of the BishopÍs veto in operation. The question of the BishopÍs veto on proceedings against clergymen has long been keenly debated. Prior to the Church Discipline Act, 1840, the Ecclesiastical Courts were in fact open to any person who desired ñto promote the office of the Judge,î provided he were solvent and not actuated by unworthy motives and the matter was one of ecclesiastical cognisance; and there is no known case in which any person desiring to prosecute was actually prevented from proceeding. the Church Discipline Act, 1840, gave, as the Courts subsequently decided, an absolute discretion to a Bishop to sanction or forbid suits under that Act. The Public Worship Regulation Acts, 1874, gave an express power to a Bishop not to proceed on a representation made to him under that Act, subject to the condition that he should consider ñthe whole circumstances of the case,î and, if he should decide not to proceed, give his reasons in writing. the Clergy Discipline Act, 1892, which deals with offences against morality committed by clergymen, empowers a Bishop to disallow a prosecution if he deems the complaint too vague or frivolous to justify proceedings. All suits against clergymen for ecclesiastical offences must be brought under one or other of the above Acts.

The Benefices Act, 1898, amending the Pluralities Acts, 1838-1887, provides machinery, which the Bishop can set in motion at his discretion, for dealing with the inadequate discharge of ecclesiastical duties by an incumbent.

It appears that, at any rate so far as the Public Worship Regulation Act is concerned, it was not intended that the BishopÍs jurisdiction should be confined to the mere question whether there had been an infraction of the law. With regard to that Act, Lord Lindley stated his opinion in the St. PaulÍs reredos case as follows:„ñIn any such case it appears to me that the Bishop may properly consider what are called the interests of the Church in the matter, by which I understand the advantages or disadvantages (to other persons than those complaining or complained of) which will result from stopping further litigation. To exclude such considerations would in my opinion be unduly to limit his power and duty to consider ïthe whole circumstances of the case.Íî

In exercising the discretion thus conferred upon them, the bishops appear to have acted on the principle of declining to allow a clergyman to be prosecuted who was willing to obey his Bishop, and of themselves refusing to prosecute except in extreme cases of disobedience to their injunctions. Whatever may have been the advantage of this course to the interests of the Church at large in preventing strife, it did not in itself tend to discourage breaches of the law.

Evidence of the circumstances of thirty-three cases in which the veto was exercised has been given before us. Opinions will differ as to the merits of these cases. In some of them there can little doubt that the veto was wisely used; in others it would appear to have been unwisely and erroneously used; but it seems useless for the purposes of this inquiry to discuss now the acts of men who have passed away, done under circumstances which occurred thirty, forty, and even fifty years ago. The only recent case of the exercise of the veto has reference to a series of proceedings which were initiated by Colonel Porcelli in 1900 and were disallowed. The facts as to these cases are stated in the evidence.

It is certain that the failure of the ritual suits thirty years ago to achieve the purpose of their promoters, and the technical flaws which delayed or defeated some suits, created an impressions that efforts to repress ritual irregularity by appeals to the law were hopeless; and the fact that several cases were vetoed by Archbishop Tait and other Bishops was probably one of the circumstances which helped to produce this impression. It appears from the evidence that in several dioceses it has in recent years been authoritatively announced that prosecutions by parishioners in respect of extreme practices would not be vetoed; nevertheless there have been scarcely any recent prosecutions by parishioners.

It must also be remembered that the imprisonment (already mentioned in paragraph 340) of certain clergymen, and the forced sale of the furniture of one of these clergymen to pay the promoterÍs costs, created a strong feeling in the public mind against litigation, and was probably one main reason for the practical disappearance of prosecutions.

The Ecclesiastical Courts Commissioners were divided in the question of the desirability of retaining the Episcopal veto. The report (8 out of 25 Commissioners dissenting) declined to recommend its abolition. It stated as follows:„ñBut since the principal branch of the ecclesiastical jurisdiction which now remains to the Courts is concerned with the correction of the clergy, it seems reasonable that the Bishop rather than any private person should decide whether the interests of the Church in any particular case require that a clerk should be prosecuted.î

In our opinion, the necessity of some power to control freedom of prosecution is largely dependent on the present system, which makes even the least departure from the standard laid down by the Acts of Uniformity an ecclesiastical offence. So long as the clergy are technically liable to be prosecuted in the Ecclesiastical Courts for acts and defaults as numerous as they may be trivial, and those Courts are not empowered to exercises in trivial matters the same discretion as the Civil Courts, it is difficult to question the justice of some arrangement to protect the clergy against useless or oppressive suits. It has been suggested that there should be substituted a preliminary consideration of the complainantÍs case by some Court of Judge; but although a judicial power of veto might give adequate protection in cases of idle of frivolous prosecution, it would be impossible for a Judge to have regard to those wider grounds, such as the general good of the Church, which have been judicially declared to have been properly regarded by a Bishop. On this ground it would not in our opinion be practicable to transfer the power of veto from the Bishop to a Court. On the other hand, to bar the entrance to a Court of Justice and to deny a man who has a complaint the opportunity of stating it before the only tribunal which can give him redress, is so grave a matter that in our opinion the abolition of the Episcopal veto is desirable, if it can be accomplished without risk of injustice. We think that the relaxation of the requirement of rigid uniformity in the rites and ceremonies of public worship, and the allowance of reasonable variety, subject to general regulation by the Bishops as a body, and within limits to be clearly defined, will make such abolition possible. We have framed our recommendations accordingly.

It will be seen from the foregoing paragraphs that the present structure of the ecclesiastical judicature, taken as a whole, is in our view one chief cause of the growth of ritual irregularities in the Church of England. The same cause has not hindered the efforts of the Bishops to remedy neglect of the proper conduct of public worship, because irregularities of this kind are naturally matters of administration rather than of litigation, and are seldom brought before the Courts. The remedies which we propose cannot be carried into effect without legislation; and we assume that, before any Bill for this purpose is brought before Parliament, its provisions will have received the consent and authority of the Church ascertained by constitutional means.

The Bishops, whose attitudes and influence with regard to ritual irregularities we proceed to consider, have never, as a body, been in favour of litigation a practical means of dealing with them. In recent years, however, ritual suits have been instituted by individual Bishops in certain cases. The Bishop of London (Dr. Ingram) in two cases has practically initiated proceedings, which were only stopped by the resignation or submission of the incumbent. The present Bishop of Oxford also commenced proceedings against one of his clergy, which were arrested on the eve of the trial by the defendantÍs undertaking to abandon the practices which were the subject of the suit.

The reluctance of a Bishop to initiate litigation against any of the clergy towards whom his relation is primarily paternal is of course natural. The distress of taking extreme measures against men of good life, and in some cases of such devoted self-denial as to make them deeply beloved by their people, must be great; and Bishops have naturally shrunk from setting the law in motion against any of those who are grappling with the task of ministering to the overcrowded poor in great cities. Moreover the prospect of costly litigation is not rendered less formidable by the knowledge the every device of legal ingenuity and pressure of popular agitation, which the resources of rich and powerful organisations can command, will be unsparingly used. Further, the lapse of time during which extreme practices have continued with impunity obviously increases the difficulty of the repression. If a Bishop should now determine to administer the Acts of Uniformity with absolute strictness, he would have to make requirements which would hinder the fruitful activities of many clergy, others which would entail a great deal of useless trouble, and others which would produce an indignant agitation in many congregations. It must also be borne in mind that suits for repressing the irregularities which he was setting himself to stop might, as the law now stands, have to be carried to a Court the authority of which is repudiated by many of the clergy whose submission would be demanded; and that the judgement of that Court might have to be enforced by penalties so unsuitable that their infliction is an offence against public opinion.

When we come to consider the administrative actions of the Bishops as distinguished from coercive measure in the Ecclesiastical Courts, it appears to be undeniable that the period of greatest growth of ritual excess, at any rate in the metropolitan area, was during the ten or twelve years which followed 1885. It seems clear that this growth was in a considerable degree assisted by the inaction of the Bishops, especially in the diocese of London, where, as already mentioned, a great liberty was allowed which made it more difficult to maintain discipline in the neighbouring dioceses and indirectly affected other dioceses.

When Bishop Creighton came to the see of London in 1897, he found grave disorders. Illegal practices and services in close imitation of Roman rites were exciting public attention. There was a certain amount of agitation; there were disgraceful scenes in several churches; and the difficulty of the situation was aggravated by the irritation which these violent interruptions of public worship caused. The BishopÍs hands were weakened because his action had the appearance of having been forced on him by public clamour. Nevertheless he endeavoured to grapple with the prevailing illegalities, with some success. It appears from our evidence that he was mistaken in supposing that he had secured in all cases that the Communion Services should be said without additions or omissions; that he had stopped the use of manuals not in accordance with Anglican teaching; or that all services going beyond the Prayer Book had practically creased. But in the last respect much was undoubtedly done. A very large number of forms of service were at Bishop CreightonÍs directions sent to him and examined. Much objectionable matter was struck out. Moreover, services such as the Veneration of the Cross, Corpus Christi processions with the Reserved Sacrament, benediction with the Reserved Sacrament, and washing of altars, which were then coming into use, were definitely checked by Bishop Creighton; and, in consequence of the efforts of the present Bishop of London in the same direction, they are, so far as we have been able to ascertain, now very rare. It appears to be almost universally admitted that a Bishop must be obeyed in the matters of special services. The evidence appears to show that a similar obedience with regard to unauthorised interpolations into and omissions from the regular services might have been given had it been more firmly demanded.

But it is with reference to ceremonies and ornaments that the BishopsÍ action in recent years has been most affected by the difficulties which the rigidity of the Acts of Uniformity has created for the present generation. It appears from the evidence that the Bishops generally, in their private and personal dealings with their clergy, have made constant efforts to bring about in the several dioceses that measure of conformity with the Book of Common Prayer, which they believed to be the utmost that under the prevalent conditions they could effectually or equitably require; and the influence thus exerted has, we believe, been far greater than is commonly realised. But there has not been the same disposition to insist upon obedience to the law of the Church of England as declared by the Courts. Some Bishops indeed have stated in their evidence that, disagreeing with the judgments in some of the well-known ritual suits, they regard themselves as justified in existing circumstances in allowing the clergy to adopt or continue certain practices which those judgments declared to be illegal. The situation, sufficiently embarrassing in every diocese, has been specially so in those which include the metropolis. Confronted by a state of thins in which ritual divergences of very varying importance were prevalent, and in which the removal of all divergences and the universal establishment of the standard of the Acts of Uniformity was plainly impossible. Bishops Creighton and Ingram, in London north of the Thames, and Bishop Talbot in South London, in an exceptionally difficult positions, have been driven to attempt a solution of the problem by forbidding some and tolerating other irregularities. But it is not surprising that this course, which has been adopted more or less distinctly by other Bishops also, has led to results which must be regretted.

For example, the Court of Arches having many years ago decided that the ceremonial use of incense was unlawful, the question was in 1899 raised again at the Lambeth Hearings. The Archbishops delivered an Opinion that any use of incense in, and as part of, public worship was illegal, because such use is not authorised by the Act of Uniformity. They guarded themselves against being supposed to say that ñincense in itself is an unsuitable or undesirable accompaniment to Divine worship.î The Bishops published a joint memorandum strongly urging the discontinuance of the use of incense. Bishop Creighton required his clergy to obey the law in this respect. A certain number of incumbents presented a protest. The Bishop then entered into an arrangement which was called a ñcompromise.î Churches which had grown use accustomed to the use of incense were to be allowed to continues its use so long as it was not employed ceremonially during one of the regular services. The altar might be censed immediately before the Communion Service began; and incense might be carried in a procession. As already stated, it had long been decided that such a use of incense is illegal, because it is impossible to separate it from the services with which it is connected. It being pointed out that a standing vessel with incense burning in it, to which no legal objection could be taken, could not be kept alight throughout a celebration, the Bishop as a further compromise, allowed the vessel to be swung, so long as it was swung for the purpose of keeping the incense alight, and not for the purpose of censing persons or things during the service. This compromise was adopted in most of the churches concerned; but certain churches stood out. Two of them, however, were allowed another type of compromise, according to which incense was not to be used at all except on the great festivals, when its full ceremonial use was to be permitted. It was left to the clergy to define the great festivals; and they have included All SoulsÍ Day in that category. The remaining churches, six in number, where even this compromise as declined, are regarded as ñunder discipline,î the nature of which has already been explained (paragraph 143). The present Bishop of London maintains the compromises of his predecessor.

The Bishop of Southwark, after the publication of the ArchbishopsÍ Opinion concerning incense and portable lights, communicated to each of the fourteen incumbents in his diocese who had used incense his ñopinion and desireî that it should be obeyed. All but one agreed to suspend the liturgical use of incense. But subsequently four receded from this agreement and resumed a complete use of incense, while three others returned to a modified use of it. The Bishop told these incumbents that they acted ñagainst his wishî; but they have persevered, and no action has been taken. Certain of the churches in question have, however, been placed by the Bishop ñunder discipline,î which, so far as his diocese is concerned, means that the Bishop does not personally visit the churches so placed, either for the purpose of holding confirmations or for any other purpose, but does not mean that he refuses to license curates.

The way in which the practice of public reservation of the Sacrament has been dealt with is equally significant. Reservation for any purpose was declared illegal by the Archbishops at a Lambeth Hearing. The present Bishop of London has endeavoured to prevent public reservation, while permitting reservation for the sick under certain safeguards. Yet he allows the Sacrament to be kept on an altar in the rood-loft of one church, where the fact is well known; and a light burning before the tabernacle is fully visible from the floor of the church. At another church he allows a tabernacle to be seen through the open-work gates of a chapel and sanctions a celebration there once a week„necessarily open to the public„when the sacred elements are changed.

The Bishop of Southwark explained to his Diocesan Conference in October, 1900, that he accepted the interpretation of the Archbishops as to reservation and believed it to be the true interpretation. But he added that ñthe question of interpretation is, however, only part of the matter. There remains that question of administration of the law so interpreted. . . . The judge has to decide what is the law; the administrator how far and how strictly it can be enforced.î Dealing with the matter administratively, the BishopÍs actions fell far short of enforcing the Lambeth Opinions in their entirety. He forbade reservation in any part of the church open to congregation, and advised the clergy ñloyally to accept the law of the Church of England as interpreted, for their rule and standard, to deflect from it in practice, if they deflect at all (whether in the manner suggested by the Archbishops or by carrying it to the sick in certain cases what has been consecrated in church) only under real stress of necessity or urgency . . . . .î Two incumbents declined to discontinue absolutely the practice of public reservation or to accept the BishopÍs suggested modifications in their entirety. But, except that their churches were regarded as ñunder discipline,î nothing further was done. Bishop Creighton appears to have sanctioned the services of Tenebrû with its attendant ceremonies (under the name of a night office), and also a procession of palms. The Bishop of Southwark deprecates the title ñVespers of the Dead,î but allows the service.

Theses instances„many others might be given„are illustrations of the inconsistency into which administrators, even men so distinguished and respected as those we have mentioned, are driven, who, encountering breaches of the law, are, in the lack of any regulative authority, compelled by the force of circumstances to meet the difficulty by compromises of their own. It may be that greater firmness and a clearer appreciation of definite lines both of policy and of principle might have led to better results. But, in our view, the real remedy is (1) the substitution of a carefully defined elasticity for one fixed standard of rites and ceremonies; (2) a power vested in the Bishops, as a body, of authorising special services and prayers and of regulating the use of hymns and anthems; (3) reservation to the office of the individual Bishop of a due power of control within the limits thus determined.

It has been urged before us that the Bishops might do much to stop illegal practices by refusing to institute to a benefice a presentee who antecedents render it practically certain that he will, if instituted, disobey the law. There are only a few instances in which any Bishop appear to have felt themselves justified in adopting this course. We recognise that a difficulty exists in the state of the law. At present we understand that a Bishop has no general right to require an undertaking from a presentee that he will obey the law in any particular; although, if a clerk has in a former sphere of duty rendered himself by his conduct liable to prosecution, the Bishop has a right to refuse him institution, and, as a condition of not exercising his right, may require the clerk to give an undertaking to obey the law. We think that, if the BishopÍs power in this respect were rendered clearer and larger, the refusal to institute should be steadily maintained in all cases of grave irregularity; and we have made a recommendation with that view.

Our attention has been drawn in several instances to the fact that clergymen, as to whose conduct of services just complaint has been made, have been collated to their present benefices by Bishops, with the result that grave irregularities, which might have been put down, have been continued. Such reasons as can be alleged in defence of these appointments, may be found in the evidence of the Bishops concerned. We feel bound to express our regret that the advice of Archbishop Temple has not been always acted upon, and advantage taken of a vacancy in a living in Episcopal patronage to put a stop to at least the graver irregularities in the conduct of public worship in the church of that parish. The control of a Bishop over the curates of his diocese is, we need not say, very much greater than in the case of incumbents, and is no doubt exercised to a larger extent than the public realise. Some instances of the exercise of this control occur in the example, the author of ñCatholic Prayers for Church of England Peopleî„described by the present Bishop of London as ña thoroughly disloyal workî„has been allowed to hold a license in the diocese of London under successive Bishops, without being required to withdraw the book from circulation; especially as that book contains, together with other matter described in paragraph 281 of our Report, the actual service for the use of which Bishop Ingram took proceedings that brought about the resignation of the Rev. H.M.M. Evans.

We think that, where a sentence passed on an incumbent under the Church Discipline Act, 1840, is wilfully disobeyed, it should be competent for the promoter, and if he neglect to do so, it should be the duty of someone officially representing the Bishop, for instance his secretary, to bring the matter before the Court by which the sentence was pronounced, on a summary application without the institution of a fresh suit. On this application it should be the duty of the Court, if satisfied of such wilful disobedience, to declare the benefice of the incumbent vacant with the same consequences as in a vacancy caused by death. We have made a recommendation on this subject.

We recommend alterations in the procedure for the removal of ornaments and objects of decoration placed in church without faculty. Further, we think it is desirable, in order to ensure that applications for faculties should be made, as required by law, before the introduction of ornaments and objects of decorations into churches, that the fees for those faculties, known as ñMinor Faculties,î should be as small as possible; and we are of opinion that 25s., which is already the amount of the fees in some dioceses, might well be adopted as the legal charge for such faculties in all dioceses.

The evidence, including that of more than one bishop, shows that in many cases the Bishops are insufficiently acquainted with the condition of their dioceses in regard to the matters which are the subject of our inquiry. It is doubtless the fact, as some of the Bishops pointed out, that the great size of many dioceses, by preventing effectual Episcopal supervision, indirectly conduces to the prevalence of irregularities in the conduct of public worship; and we make a recommendation on this important matter. But we think that more use might be made of Episcopal and Archidiaconal visitations and of Rural DeansÍ inspections of churches, in order to keep the Bishop informed of the ornaments in parish churches and the services therein, and of the results of any directions he may have given with regard to them. With respect to any habitual practice, such as frequent celebrations without communicants, it ought not to be impossible for the Bishop, by means of periodical returns, to ascertain whether the law of the Church is being broken or evaded in any parish, and to take steps accordingly.

There can, in our opinion, be no doubt of the wisdom of reserving the employment of legal coercion for grave cases which do not yield to milder measures. We think, however, that occasions have arisen more often than has been realised by the Bishops when the interests of the Church and her due administration demanded that discipline should be enforced by action in the Ecclesiastical Courts. The deliberate persistence in spite of a BishopÍs monition in practices significant of teaching repudiated by the Church of England ought to be met by an attempt at least to assert in a constitutional way the ChurchÍs claim to obedience. If such attempts failed, the case for reorganisation of the Ecclesiastical Courts would be strengthened. But the fact that reforms are needed is not an adequate reason for allowing defiant lawlessness to go unchecked pending their adoption. Among the practices which we have already distinguished as being of special gravity and significant will be found the following:„

The interpolation of the prayers and ceremonies belonging to the Canon of the Mass.

The use of the words ñBehold the Lamb of God,î accompanied by the exhibition of a consecrated wafer or bread.

Reservation of the Sacrament under conditions which lead to its adoration.

Mass of the Prû-sanctified.

Corpus Christi processions with the Sacrament.

Benediction with the Sacrament.

Celebration of the Holy Eucharist with the intent that there shall be no communicant except the celebrant.

Hymns, prayers, and devotions involving invocation of or confession to the Blessed Virgin Mary or the Saints.

The observance of the festivals of the Assumption of the Blessed Virgin Mary, and of the Sacred Heart.

The veneration of images and roods.

These practices have an exceptional character as being marked by all the three following characteristics:„(1) they are clearly inconsistent with and subversive of the teaching of the Church of England as declared by the Articles and set forth in the Prayer Book; (2) they are illegal; and (3) their illegality cannot with any reason be held to depend upon judgments of the Judicial Committee of the Privy Council, or to be affected by any view taken of the constitutional character of that tribunal. Any observance of All SoulsÍ Day or of the festival of Corpus Christi which inculcates or implies ñthe Romish doctrine concerning Purgatoryî or transubstantiation falls under the same censure. The arguments, based upon history and the usage of the Church before the Reformation, which have been urged before us upon many of the matters to which we have directed our attention, are, in the case of the practices to which we now refer, irrelevant. We desire to express our opinion that these practices should receive no toleration; and that, if Episcopal directions for their prevention or repression are not complied with, the Bishops should take or permit coercive disciplinary action in the Church Courts for that purpose. Further, in the case of these practices, it is, in our opinion, unnecessary and undesirable to postpone proceeding until the reforms which we have recommended in connexion with the Final Court of Appeal in ecclesiastical causes and the diocesan and Provincial Courts can be carried into effect.


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