Modern Influences
Method of determining ecclesiastical law — James II. — Declaration of Indulgence — Trial of the Seven Bishops — Oath of Allegiance and William III. — Non-Jurors — Composition Prayer Book suggested by William III. — Latitudinarians and Whigs — High Church and Tories — Queen Anne's Bounty — Jacobite tendencies of Tories — No Convocation, 1717 to 1850 — Cession of Wesleyans — Relief of Nonconformists — Emancipation of Roman Catholics — Tractarian Movement — Church Discipline Act, 1840 — Public Worship Regulation Act, 1874 — Ritual trials, Clifton v. Ridsdale, Read v. Bishop of Lincoln — Bishop of Oxford v. Healy — Report of the Upper House of Convocation — Enabling Act — Church Assembly — Permissive Measures, 1927 and 1928 — Rejection by the House of Commons — Bishops' modus vivendi.
As it has been laid down on various occasions in the Courts that long-continued practice consistent with a special view of ecclesiastical law may be taken into consideration in determining its true meaning, a hurried glance must be given to the events which followed the production of the Prayer Book of 1662, and the passing of the Act of Uniformity (14 Car. II. c. 4).
In 1687 King James II., who was a Papist, endeavoured to insist on his royal prerogative of pardoning criminals by granting indulgences before the commission of the offence, so that he permitted Papists to hold commissions in the army and other offices. Eventually he sent the “Declaration of Indulgence” to the Bishops, requiring it to be read in all the Churches, whereby he suspended all the penal clauses against all Nonconformists contained in the Act of Uniformity.
In reply to this, seven of the Bishops sent a petition to the King, stating that it was against their consciences, for which they were tried for libel (by this term it must be explained that the statement of claim is termed the libel in ecclesiastical law), but were acquitted.
Shortly afterwards James II. fled to France and William of Orange landed in England. But many of the bishops and clergy would not recognize the elective character of the sovereign, and became what were called non-jurors in 1690, resigning their benefices rather than take the oath of allegiance. These included Archbishop Sancroft and five other bishops and some 400 clergy.
This produced the anomaly that many of the clergy who had been foremost in opposing the actions of James II. found themselves in opposition to his successor.
William III., who was a Calvinist, sought to introduce a composition Prayer Book in 1689 without consulting Convocation, but Parliament would not accept it until the matter had been brought up in Convocation, where it received so much opposition that it was dropped.
Thus it came about that the Latitudinarian or Low Church Party, who were not so adverse to Calvinistic tendencies, became identified with the Whigs in Parliament, whilst the High Church Party or Carolines became identified with the Tory Party in Parliament. William did not allow the Houses of Convocation to meet for eleven years, and the Whig Party filled all the Bishoprics, so that when the Convocation of Canterbury met in 1701 the Upper House was largely Whig and the Lower House Tory; upon which the Lower House asserted an independence based upon an analogy with Parliament for which there was no precedent. Until at last, in 1710, Queen Anne, herself a Tory, found herself at the head of a Tory Government with a Tory and High Church majority in the House of Commons.
It was during this reign in 1704 that Queen Anne's Bounty was originated, being a grant by the Crown of the first-fruits of all benefices, which right it had held at any rate since Henry VIII., in fact, our old friend the ‘Annates’, to form a fund for the augmentation of poor benefices.
But owing to the Jacobite tendencies of the Tories, not one became a minister from 1714 to 1761, and no House of Convocation was allowed to sit from 1717 to 1850.
It is not necessary here to trace the cession of the Wesleyans and Methodists about 1784, nor of the gradual repeal of penalties against Nonconformists and toleration of the Roman Catholics, beyond mentioning the Abolition of the Tests and Corporation Acts in 1828 as regards the former and the Roman Catholic Emancipation Act 1829 as regards the latter.
In that year Keble wrote the Christian Year, and Dr. Arnold became headmaster of Rugby. The former was a High Churchman, more noted for his poetry than the College at Oxford named after him; the latter was the first to extend latitudinarianism into the Broad Church, which formed the third school of thought in the Victorian age, though it is difficult to identify the Modernists of to-day as their direct descendants. From 1833 to 1840 the Tractarian Movement was prominent at Oxford, which sought to rescue the Caroline principles from beneath the burden of latitudinarian thought which had practically ruled the Church throughout the whole of the Georgian period.
This activity, which was so contrary to the latitudinarian spirit of the repression of all enthusiasm, alarmed the episcopacy, and as a first step, the Church Discipline Act, 1840 (3 and 4 Vict. c. 86) was passed, which repealed the old Statute of 1 Hen. VII. c. 4 (for the punishment of rebellious priests), and simplified the procedure, but gave the ultimate appeal to the Judicial Committee of the Privy Council, with a proviso that at least one archbishop or bishop, who was not involved in the suit and who was a Privy Councillor, should sit in such Court with the usual judges.
It may here be noted that the Ecclesiastical Commission was brought into being in 1836, which still effects a redistribution of much of the Church's revenue.
The defection of Newman in 1845 and Manning in 1851, both of whom subsequently became Cardinals, did much to diminish the effects of this movement.
A series of prosecutions on the question of ritual was aggravated by the passing of the Public Worship Regulation Act, 1874 (37 and 38 Vict. c. 85), which created a new civil court to deal with these alleged offences instead of allowing them to be tried in the old ecclesiastical courts, but because this Act had been promoted by Archbishop Tait it attracted the support of all his bishops.
The three most important cases, that of Clifton v. Ridsdale in 1876, Read v. Bishop of Lincoln in 1892, and Bishop of Oxford v. Healy in 1907, were based upon the assumption that the Advertisements of Archbishop Parker in 1566 were such alterations of the Ornaments Rubrics of 2 Edw. VI. as were provided for by the Elizabethan Act of Uniformity (1 Eliz. c. 2), and that in consequence of this the Ornaments Rubric in the Prayer Book of 1662, which referred to 2 Edw. VI., must be read as referring to it, coupled with such alterations as were legally in force at the time of the Rebellion, to which the legislation at the time of the Restoration generally referred.
However, subsequent historical research has clearly shown that these Advertisements were only a minimum, which, in consequence of the request of Queen Elizabeth for better Order in the Church, Archbishop Parker sought for the time to enforce. Hence the report of the Upper House of Convocation in 1908 which dealt with the whole matter at great length, definitely decided that these legal decisions were based upon historical inaccuracies. With this report in existence, how could the Bishops attempt to enforce these legal decisions, which had been found to be wrong, and yet, since they must bind further cases in the same courts, could but perpetuate a falsity if further legal action were taken.
Further, the Royal Commission, which had been created in 1904 for a report on the general revision of the Prayer Book, had made its report in 1906, which was similar in effect to the subsequent report in 1908 mentioned above.
To endeavour to get out of this impasse, and at the same time to give the laity a greater voice in the Church, parochial councils were formed from the communicants in each parish, and representatives of these, together with the old House of Laymen and the whole of Convocation, were formed into a New Advisory Body called the Church Assembly by an Act of Parliament called the Church of England Assembly (Powers) Act, 1919 (9 and 10 Geo. V. c. 76), generally referred to as the Enabling Act.
In consequence of the deliberations of this body, the Permissive Measures of 1927 and 1928, which embodied the alternative use of a revised Book of Common Prayer and Ordinal, were presented to Parliament, but in each case rejected by the House of Commons. As at present no one actually conforms to the rubrics of the existing Book of 1662, the bishops as a modus vivendi decided to take disciplinary steps as Ordinaries only against those who comply with neither the one nor the other. Further, in the hope of inducing conformity in the matter, the Bishops in both Upper Houses of Convocation of Canterbury and York in July 1929 passed resolutions to which they obtained the approval of the Lower Houses to the effect that: they could not regard the use of the additions or deviations contained in the Book of 1928 (having been approved in Convocation and the Church Assembly) as inconsistent with loyalty to the principles of the Church of England, and would be so guided in the exercise of their administrative discretion, provided that such use was with the goodwill of the Parochial Church Council, or in the case of the Occasional Offices with the consent of the parties concerned.