Secular Court in United Kingdom

The church and the law courts

In 1833 the supreme jurisdiction of the Court of Delegates was transferred to the judicial committee of the privy council. Before this court came an appeal by a clerk named Gorham, 452 whom the bishop of Exeter refused to institute to a benefice because he denied unconditional regeneration in baptism, and in 1850 the court decided in the appellant’s favour. The decision was followed by some secessions to Rome, and high churchmen were dissatisfied that spiritual questions should be decided by a secular court. The “papal aggression” of that year, by which Pius IX. appeared to claim authority in England, roused violent popular indignation which was used against the high church party. However, it afforded an argument for the revival of convocation, and, chiefly owing to the exertions of Bishop Wilberforce of Oxford, convocation again met in 1852 (see Convocation in this legal Encyclopedia).

Meanwhile broad church opinions were gaining ground to some extent owing to a reaction from the Oxford movement. Among the clergy the broad church party was comparatively small, but it included some men of mark. In 1860 appeared Essays and Reviews, a volume of essays by seven authors, of whom six were in orders. The book as a whole had a rationalistic tendency and was condemned by convocation: two of the essayists were suspended by the Court of Arches, but its judgment was reversed by the judicial committee. Crude attacks on the authority of the Scriptures and the position of the English Church with respect to it having been published by Colenso, bishop of Natal, he was deposed by his metropolitan, Bishop Gray of Cape Town, in 1863, but the judicial committee decided that the bishop of Cape Town had no coercive jurisdiction over Natal. Convocation declared Colenso’s books erroneous, abstaining in face of this judgment from acknowledging as valid the excommunication which Bishop Gray pronounced against him. It followed from the decision of the council that the English Church in a self-governing colony is a voluntary association.

Opposition to the dogmatic principle in the church was maintained. Some practices introduced by clergy desirous of bringing the services of the church to a higher level came before the judicial committee in the case of Westerton v. Liddell in 1857, with a result encouraging to the ritualists, as they then began to be called. An increase in ritual usages, such as eucharistic vestments, altar lights and incense, followed. In 1859-1860 disgraceful riots took place at St George’s-in-the-East, London, where an advanced ritual was used. In 1860 the English Church Union was formed mainly to uphold high church doctrine and ritual, and assist clergy prosecuted for either cause, and in 1865 the Church Association, mainly to put down such doctrine and ritual by prosecution. A royal commission appointed in 1867 recommended that facilities should be granted for enabling parishioners aggrieved by ritual to gain redress, and in 1870 that a revised lectionary and a shortened form of service should be provided. A new lectionary was approved by the two convocations and enacted, and convocation having received letters of business in 1872 and 1874 drew up a shortened form of prayer which was also enacted, but the commission had no further direct results.

Between 1867 and 1871 two decisions of the judicial committee were adverse to the ritualists, and by exciting dislike to the court among high churchmen indirectly led to an increase in ritual usages. Among those who adopted them were many self-devoted men; their practices, which they believed to be incumbent on them, were condemned as illegal, yet they saw the rubrics daily disregarded with impunity by others who trod the easy path of neglect. In 1873 a declaration against sacramental confession received the assent of the bishops, and in 1874 Archbishop Tait of Canterbury introduced a bill for enforcing the law on the ritualist clergy; it was transformed in committee, and was enacted as the Public Worship Regulation Act. It provided for the appointment of a new judge in place of the old ecclesiastical judges, the officials principal, of the two provinces. Litigation increased, the only check on prosecutions being the right of the bishop to veto proceedings, and in 1878-1881 four clergymen were imprisoned for disobedience to the orders of courts against whose jurisdiction they protested. In consequence of the scandal raised by this mode of dealing with spiritual causes, a royal commission on ecclesiastical courts was appointed in 1881, but its report in 1883 led to no results, and the bishops strove to mend matters by exercising their veto. Advanced and illegal usages became more frequent. Proceedings in respect of illegal ritual having been instituted against Bishop King of Lincoln, the archbishop of Canterbury (Benson) personally heard and decided the case in 1890, and his judgment was upheld by the judicial committee (see Lincoln Judgment).

The spiritual character of the tribunal and the authority of the judgment which sanctioned certain usages and condemned others, had a quieting effect. Increase in ritualism, however, caused agitation in 1898, and in 1899 and 1900 the two archbishops, Temple of Canterbury and Maclagan of York, delivered “opinions” condemning the use of incense and processional lights, and the reservation of the consecrated elements. Finding himself unable to put down illegal practices, Bishop Creighton of London adopted a policy of compromise which was followed by other bishops, and encouraged illegality. Disregard of law both in excess and defect of ritual being common, a royal commission on ecclesiastical discipline was appointed in 1904. The commissioners presented a unanimous report in 1906, its chief recommendations being, briefly, that practices significant of doctrines repugnant to those of the English Church should be extirpated; that the convocations should prepare a new ornaments rubric, and frame modifications in the conduct of divine service; that the diocesan and provincial courts and the court of final appeal should be reformed in accordance with the recommendations of 1883, the last to consist of a permanent body of lay judges who on all doubtful questions touching the doctrine or use of the church should be bound by the decision of an episcopal assembly; that the Public Worship Regulation Act should be repealed, and the bishops’ power of veto abolished.

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Resources

Notes and References

1. Encyclopedia Britannica (11th Edition)

See Also

Further Reading

F. W. Maitland, Roman Canon Law in the Church of England (London, 1898)
J. W. Burgon, Lives of Twelve Good Men (2 vols., London, 1888); R. W. Church, History of the Oxford Movement (London, 1891); J. T. Coleridge, Life of Keble (Oxford, 1869); R. T. Davidson and W. Benham, Life of Archbishop A. C. Tait (2 vols., London, 1892); H. P. Liddon and J. O. Johnston, Life of Pusey (4 vols., London, 1893-1895); T. Mozley, Reminiscences of Oriel and the Oxford Movement (2 vols., London, 1882); J. H. Newman, Apologia pro Vita sua (London, 1864); R. Prothero, Correspondence of Dean A. P. Stanley (2 vols., London, 1893); R. G. Wilberforce and A. Ashwell, Life of Bishop S. Wilberforce (3 vols., London, 1879) Report of the Royal Commission on Ecclesiastical Courts (1883), and Report of the Royal Commission on Ecclesiastical Discipline (1906)