Project Canterbury

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

CHAPTER III.
DEPARTURES FROM THE STANDARD OF THE ACTS OF UNIFORMITY.

It is right that we should observe that, ever since the time of the Reformation, the Crown has exercised a power of dealing with the services of the Church, with the result of a departure from a rigid adherence to the standard prescribed by the Acts of Uniformity. Thus, in the case of hymns, the Prayer Books of Edward VI. and Elizabeth, departing from the example of the Breviary, restricted the use of hymns in the public services to the very few (e.g., canticles at Morning and Evening Prayer) which form a fixed part of the several services. Nevertheless the Queen’s Injunctions (1559) purported to permit hymns to be sung congregationally at the beginning and end of Morning and Evening Prayer; and metrical psalters were published in various versions and editions, under royal authority, to be used in churches, in the sixteenth and seventeenth centuries; with the result that, while in the present Prayer Book the only rubrical direction for an “anthem” is “in quires and places where they sing” after the third collect at Morning and Evening Prayer, metrical psalms and hymns have been habitually introduced at various parts of the services, the only condition — not always observed — being that no part of the Prayer Book form should be “let” or “omitted.” Finally, hymns had the judicial sanction of Lord Stowell in 1792; and in the Lincoln Case (1890) Archbishop Benson held that the Agnus Dei, sung “in the Communion time” without interrupting the service, was allowable as a hymn. He said, “The singing in none of those place is permissible by the words of any statute or rubric; but no court or authority would consent to declare it illegal, because the prevalent use of it is, by the principles of law, a very safe assurance that it is not illegal.” The Judicial Committee, in approving the Archbishop’s judgment, took the same view, and based their decision on “usage ever since the passing of the Act of Uniformity.” The repetition of the words “Glory be to Thee, O Lord.” before the Gospel, required by thee first Prayer Book of Edward VI. but omitted from all subsequent Prayer Books, may similarly be justified by long usage. Yet the difficulty of this defence is illustrated by the Judicial Committee itself when, in another context, it quotes with approval the dictum of Dr. Lushington that usage, though entitled to the greatest respect, “cannot contravene or prevail against positive law.”

In Queen Elizabeth’s reign various forms of special services were issued for use in parish churches, some by ecclesiastical and some by civil authorities without statutory sanction. Again, in the “Admonition” prefixed to the Second Book of Homilies (published in 1563 as “set out by the authority of the Queen’s Majesty and to be read in every parish church agreeably”), ministers are recommended, when it may chance that a chapter of the Old Testament ought according to the Lectionary to be read on the Sunday or Holy-day “which were better changed with some other of the New Testament of more edification,” “to consider well of such chapters beforehand.” Again the 72nd Canon (1604) contemplates an exercise by the Bishops of a discretion in the appointment of Fast-days not named in the Prayer Book. The words are: “No minister or ministers shall, without the license and direction of the Bishop of the diocese first obtained and had under his hand and seal, appoint or keep any solemn fasts, either publicly or in any private houses, other than such as by law are or by public authority shall be appointed.”

The State services (namely, those to commemorate the Accession of the Sovereign, the Execution of Charles the First, the Restoration, and the Discover of the Gunpowder Plot) were promulgated by Royal proclamation. The last three, dating from the seventeenth century, were discontinued in obedience to a Royal proclamation in 1859. The Accession service has been frequently changed; and a new service drawn up by Convocation was issued under Royal authority in 1901. Special prayers and thanksgivings for use in churches are from time to time published under Royal authority, without regard to the restrictions of the Acts of Uniformity. When the terms of the Declaration of Assent taken by clergymen at Ordination were considered by Parliament in 1865, words were inserted so as to cover the use of such services and prayers not prescribed by the Acts of Uniformity. The Declaration now runs: “And in public prayer and administration of the Sacraments I will use the form in the said book prescribed and none other, except so far as shall be ordered by lawful authority."

Side by side with the action taken by the Crown as described in the preceding paragraphs, there has been throughout the post-Reformation history of the Church of England a looseness of practice on the part of the clergy which covers a far wider area. As a matter of history, deviations from the standard set up by the Acts of Uniformity can be shown not only to have existed but also to have been tolerated in every period since the Act of Uniformity of 1559. Nor does it appear that any systematic attempt to enforce general conformity to the rubrics has ever been made except upon thee occasions:—

(1.) in the reign of Elizabeth, after the Advertisements were issued in 1566;

(2.) during the primacy of Archbishop Laud (1633—1646);

(3.) in the period following the Restoration of 1660.

On none of these occasions was the result wholly satisfactory, only a partial measure of conformity to the rubrics being established, and even this not without secession on the part of many of the recalcitrants. For the first six or seven years of Elizabeth’s reign, many of the Puritan clergy habitually ignored some of the plainest directions of the Book of Common Prayer without interference from authority; and, even after the attempt to enforce conformity with the rubrics and the use of the surplice, coupled with the refusal to allow any change in the system of Church government had led to the formation of separate bodies, there were still striking instances of acquiescence in a lower standard than that which the Prayer Book demanded. The same thing is true of the reigns of James I. and Charles I., when even the direction to use the surplice was widely ignored; while on the other hand, when the law was once more strictly enforced during the Laudian period, not a few instances may be quoted of the practice of rites and ceremonies, sometimes recommended by authority, for which no provision was made by the rubrics. At the revision of the Prayer Book in 1662 the directions of the rubrics were rendered fuller and more detailed, and a new Act of Uniformity was passed; but the attempt then made to enforce universal compliance was quickly abandoned. Even after the ejection of the Nonconformists on August 24, 1662, practices for which the rubrics gave no sanction were freely used (e.g., long extempore prayers in the pulpit before the sermon); and there was widespread neglect of the positive directions contained in the Prayer Book. This greatly increased as time went on; and throughout the nineteenth century the clergy were to come considerable extent guided by custom in the conduct of Divine Service that some of the plainest requirements of the Prayer Book (e.g., the observance of Holy-days, and the saying of the Litany of Wednesdays and Fridays) were in very many cases suffered to become a dead letter. Departures from the directions of the rubrics during this period, though mainly of a different character from those chiefly complained of in the present time, were nevertheless real departures from the provisions of the Acts of Uniformity and the requirements of the Book of Common Prayer. Thus, from the sixteenth century down to the present time there has existed a contrast between the theory of the law clearly expressed in the Acts of Uniformity and the practice of the clergy in the conduct of public worship.

These deviations from the legal standard have varied greatly in their causes, their nature, and their importance. Some have been common for a time and have then ceased. Some have only become prevalent in comparatively recent years. Some were additions to the ceremonies or ornaments connected with public worship; some were omissions. Some have been changes demanded by general convenience, if not necessity; some have been the outcome of mere negligence. Some, especially in the sixteenth and seventeenth centuries, were the expression of theological and ecclesiastical difference resembling those which in our own day, divide churchmen. An historical memorandum illustrating these deviations, prepared by the Bishop of Gloucester, is appended to our report (Appendix C.).

A large amount of evidence has been laid before us in respect of the following contentions:—

1. That the Judicial Committee of the Privy Council, to which many of the important judgments dealing with ecclesiastical law delivered in the nineteenth century are due, is not a competent court for dealing with such matter; that its position as the ultimate tribunal in questions of doctrine and ritual is unconstitutional; and that its decisions are not binding on the consciences of the clergy, and ought not to be enforced. This contention will be referred to later.

2. That the leading Privy Council judgments are incorrect in substance; (a) in holding that the Ornaments Rubrics refers, as a standard for ornaments, to what was authorised by the first Prayer Book of Edward VI.; it is alleged that the standard set up by the Ornaments Rubric is the use in the services in the second year of Edward VI. before the first Prayer Book came into force; further, it is maintained by some persons that the Ornaments Rubric so construed governs not only ornaments, but ceremonies also— (b) in holding that the Advertisements of 1566 ought to be read into the Ornaments Rubric so as to alter the direction on the face of that rubric requiring the vestments of the first Prayer Book (or of the second year of Edward VI.) to be worn by the clergy.

We have though it right to receive the evidence proffered on the above points; and the witnesses tendering it were closely examined with a view to bringing out on each point the degree of real difficulty and uncertainty which can be alleged. We hope that the publication of this evidence, thus tested, may be of service for the ultimate settlement of the questions raised. It would be unfitting for the Commission, which is not a judicial body, to express opinions by way of criticism of, or agreement with, the judgments of the Privy Council; nor do we deal with the question whether any fresh light thrown on the case of Ridsdale v. Clifton by the evidence given before us would be likely to affect the decision given in that case. The judgments of the Privy Council, as has earlier been pointed out by Lord Halsbury, are open to reconsideration by the Court itself, which will not only look carefully at the fresh light of facts not laid before it on a previous occasion, but will also examine the reasons upon which the previous decisions rest and give effect to its own view of the law. This, however, cannot be considered as affecting the authority which these decisions have as the latest judicial interpretation of the rubrics.

A claim has been advanced that a power resides in each Diocesan Bishop to control the public services of the churches in his diocese, and to authorised additions and omissions therein to an extent which no witness has exactly defined, but which is apparently supposed to cover a larger area of immunity from the requirements of the Acts of Uniformity than any construction of the shortened Services Act would warrant. This right, under the name of jus liturgicum, was claimed definitely by at least two Bishops, and less distinctly by another, as a power inherent in the Episcopal office, which has never been specifically taken away from Bishops of the Church of England. It is claimed by other Bishops only in respect of services other than the regular services controlled by the Acts of Uniformity. A power which in operations appears to be almost as extensive as that claimed under that name of jus liturgicum, is exercised by some Bishops who regard themselves as authorised by a wide construction, adopted by Archbishop Temple, of the Shortened Services Act, to allow special services and parts of services (e.g., collects) which, although not in terms taken from the Prayer Book, are in harmony with its contents. But many of their Lordships, while stating their emphatic opinion that the needs of the Church of England make it essential that the Bishops should exercise, or continue to exercise, some such power, do not claim for it any legal foundation.

There cannot, in our opinion, be any doubt that the Acts of Uniformity bind Bishops as well as other clergymen; and that the law does not recognise any right in a Bishop to override the provisions as to services, rites, and ceremonies contained in those Acts. The question whether the law ought not to be modified so as to confer on the Bishops wider powers of authorisation, and also control, or public services, than any they at present posses, is an important one to which we shall return at a later stage of our Report. At the present stage it is enough to say that, though Bishops have from time to time used a certain liberty of action with a view to relax the stringency of the Acts of Uniformity, it does not appear to us that there is any legal ground for assuming that, apart from statutory provision, the Bishop of a diocese has an inherent right to dispense the clergy from observing the provisions of those Acts. Such an assumption would, in our opinion, be inconsistent with the constitutional relations of Church and State in England; and it seems reasonable also to hold that, on the principles of ecclesiastical order, the collective actions of the Bishops assembled in the Convocations of both Provinces, which in 1662 they appointed the use of the Prayer Book, has precluded the claim of any individual Bishops to set aside or alter what is therein prescribed. The test of legality or illegality in the conduct of Divine Service must be applied without reference to any such claim.