Before the Public Worship Regulation Act

Although the religious and legal crisis created by the Ritualist cases appears to have come as a surprise to contemporaries, it is possible now to identify a range of factors that contributed to the situation. These included the reform of the ecclesiastical courts in the 1850s, which removed from them the extensive work of probate and defamation cases, and resulted in the abolition of Doctors’ Commons and the loss of a tradition of civil law jurisprudence that might have been less sharply divisive. This was also an era in which the Victorian parson, secure in his freehold and locally derived income, was even more free from conventional accountability than clergy are today, and thus able to adopt practices and beliefs according to conscience.

Key in the background, however, was the fervent state of theological discussion which had developed in the 19th century since the emergence of first the Evangelical movement at the beginning of the century, followed by the Tractarians from 1833. Doctrinal questions had already reached court in decisions like the Gorham Judgment of 1850.Footnote ² All this took place in what we might now recognise as, in its own way, a social media frenzy. To be sure, it moved at the pace of the Victorian postal service (rather faster than our own) instead of online, and 1,300-word pamphlets were more the style than 130-character ‘tweets’, but it feels like the same atmosphere of fervid competing opinion, where everyone felt able to devise their own theory and to develop detailed rebuttals of competing arguments. And an aspect of developing opinion among more Catholic commentators, especially following Gorham, was the legal analogue to the Tractarian suspicion of Parliament as no longer an Anglican assembly. The court of final appeal where Gorham was settled, the Judicial Committee of the Privy Council, was a secular court unsuitable, many argued, to determine spiritual matters. For some the only answer was to submit to Rome; for others to work for the revival of Convocation to give the Church her own voice again.

It was against this background that the first liturgical cases emerged in the 1860s, in the form of complaints against clergy who had advanced from the catholic theology of the Oxford Movement to introduce the catholic liturgical practices of vestments, candles, incense and associated actions, and interpolations to the text of the Book of Common Prayer. These attracted the horror of establishment Protestants like Lord Shaftesbury, who declared that he had discovered the ‘worship of Juno and Jupiter’Footnote ³ off Oxford Street. Informed by the critique of the Privy Council, Anglo-Catholic clergy entered the fray pre-disposed to defy authority, as one commentator observed of Father Mackonochie of St Alban, Holborn, around whom a great number of cases were fought:

It was in these early cases that a distinction emerged between the Court of Arches under Sir Robert Phillimore as Dean, who though not tolerating everything, judged in favour of many details of ritual practice like lit candles and vestments, and the Privy Council which on appeal delivered more Protestant-leaning decisions, only reinforcing the belief that it was not a legitimate authority.Footnote ⁵

The Public Worship Regulation Act 1874

The official response, significantly the last time Parliament intervened to attempt to direct the life of the Church of England, took the form of the Public Worship Regulation Act 1874. It was introduced to the House of Lords by Archbishop Tait, who discomfited many clergy by announcing his plans first in The Times rather than to ecclesiastical company, and who did so in collaboration with Disraeli as Prime Minister and the background approval of Queen Victoria, who had no enthusiasm for the Ritualists.Footnote ⁶ The opportunities for criticism of the legislation were increased by the choice of Lord Penzance as judge of the new court (to become Dean of the Arches and Auditor as those offices fell vacant, uniting them as they remain to this day) who had built his legal reputation in the Court of Probate and Divorce. Penzance himself then refused to take the customary oath as an ecclesiastical judge on the grounds that he had been named in the legislation and so it was unnecessary.Footnote ⁷

All these conditions facilitated the response of the Ritualist clergy, who decided that the new court had no authority to try them, and (with the exception of Father Ridsdale) refused to appear before it. The Society of the Holy Cross (commonly known as SSC, Societas Sanctae Crucis) functioned as an effective ‘trade union’ where the priests concerned could meet and privately discuss their responses to fortify one another in defiance.

The names of Fathers Tooth, Dale, Enraght, Green and Cox are treasured amongst Anglo-Catholic historians as the five ‘Ritual Martyrs’ who were imprisoned for contempt as a result of their defiance. Their ordeal, deliberately publicised, transformed public opinion from hostility at what had been seen as Romish innovations to sympathy for prisoners of conscience, and obscure legal technicalities were identified to release all of them as soon as practicable. There were also much-reported scandalous details like the ‘Bordesley Sacrilege’ in the case of Father Enraght of that parish, when the (Protestant) Church Association spy had pocketed the Sacrament to provide evidence of his illegally using wafer bread. When produced in court it was taken as evidence and stamped with the court seal. With an influence denied archbishops today, Tait managed to obtain it and assure the public he had personally consumed it.Footnote ⁸ No technicality was found for Sidney Green, who languished in prison for a year and a half and whose wife and children were evicted from the vicarage, adding to public sympathy.

The outcome of these cases was that by 1881 the bishops had largely agreed to exercise the discretion afforded them by the Act to not bring further cases (commonly, if somewhat inaccurately, described as the ‘bishop’s veto’).Footnote ⁹

Veto, liberty and informal discipline

This general veto of ritual cases did not, however, end the liturgical warfare. A renewed phase of dispute, particularly in London, is known as the ‘Church Crisis’ of 1898–1904 studied by the late Bishop Alan Wilson in his (unpublished) 1988 DPhil dissertation.Footnote ¹⁰ The Church Association, led now by John Kensit, sought to bring the civil law into play by, for example, claiming assault from being involuntarily asperged, and the bishops seemed to disappoint everyone by their lack of decisive power to resolve the situation. In Parliament and The Times, Sir William Harcourt, former Home Secretary and Chancellor of the Exchequer, argued the anti-Ritualist cause with passion. Wilson’s observations of the situation seem as relevant to 1988, or 2014:

Unwilling to return to prosecution, the two Archbishops issued declarations on their own undefined authority in 1899 and 1900 against incense and reservation, respectively, resulting in some compromise but also continued defiance.Footnote ¹²

Although a few isolated cases directed at clergy who practised Benediction took place in the 20th century, many bishops resorted to placing those priests they regarded as liturgically errant ‘under discipline’.Footnote ¹³ This implies writing formally, and such restrictions as refusal to visit to confirm, to license curates, or to invite clergy to diocesan or deanery gatherings. Paradoxically, the consequent isolation almost certainly fortified the separate Anglo-Catholic subculture, and encouraged workarounds like inviting colonial bishops on furlough in to confirm, perhaps anticipating today’s episcopal visitors.

On the official level, energy was directed into the Royal Commission on Ecclesiastical Discipline, which gathered a huge amount of information to report in 1906. The conclusions were clear. First, ‘the law of public worship in the Church of England is too narrow for the religious life of the present generation’.Footnote ¹⁴ In other words, in the absence of much provision for variety in the Book of Common Prayer, clergy and others had taken matters into their own hands and introduced great variations in both rite and ceremony, and in spite of the controversy, had supporters whose faith was sustained by them. Second, ‘the machinery for discipline has broken down’,Footnote ¹⁵ a conclusion readily supported by the accounts of the trials, and non-trials, as described above.

Towards the 1928 Prayer Book

The outcome of the 1906 Report was the commencement in the Convocations of a slow process to revise the Prayer Book, held up by both the First World War and the need to re-argue all the details through the newly constituted Church Assembly from 1920. The resultant 1928 Prayer Book has often been studied as a step on the road of liturgical reform, drawing on and contributing to parallel developments around the Anglican Communion, and to subsequent revisions from the 1960s onwards when parts of it were revived as Series 1. However, foremost in the mind of many in the 1920s was the desire to create a book that could once again be enforced as a liturgical standard. It was for this reason that as well as being opposed by Protestant Anglicans seeing signs of Catholicism, it was also opposed by the strongest Anglo-Catholics as a likely curb on their liturgical freedom.

However, the question of the value of the new Prayer Book for discipline also contributed directly to its notorious defeat in the House of Commons in December 1927 (and again in 1928 when presented with slight revisions). The main argument presented against the revisions, both unsuccessfully in the Church Assembly and successfully in Parliament, was that by revising the Holy Communion service and allowing reservation of the sacrament, and by including prayers for the dead, this undermined the Protestant character of the Church of England (and so by implication, England itself). However, advocates of this view such as prominent Tory politicians Thomas Inskip (at the time Solicitor-General) and William Joynson-Hicks (Home Secretary) were also unconvinced that discipline would actually be enforced. Like others, they felt that ‘… in previous decades, the bishops had developed a reputation for inconsistency, weakness and even duplicity in their attitudes towards ritualistic practices’.Footnote ¹⁶

It appears that Inskip and Hicks corresponded with Archbishop Davidson and other bishops to seek assurance that the new Prayer Book would be enforced, but were disappointed by the ambiguity of the answers received.Footnote ¹⁷ As ever, counterfactual history is speculation, but if the bishops had responded with a convincing show of support for renewed discipline, it is possible that the two cabinet ministers would have muted their opposition in the Commons. This might not have shifted the vigorous non-conformist votes against, but as the critical vote was 240 to 207, it seems very possible that the revised Prayer Book would have been carried, with a very different liturgical and constitutional history following. But it might only have led to renewed strife, as Dean Inge observed: ‘The rejection of the Book really saves [the bishops] from a humiliating position; for they would not have been obeyed’.Footnote ¹⁸

The uncertain status of liturgical law was only confirmed by the creatively ambiguous response of the bishops to the defeat of the revised Prayer Book. They allowed the final version (as rejected by the Commons again in 1928) to go to print, with a note on the inside page setting out the background but concluding firmly, ‘The publication of this Book does not directly or indirectly imply that it can be regarded as authorised for use in churches’.Footnote ¹⁹ At the same time, however, they issued a public declaration that they would not disapprove of any deviations from the 1662 Prayer Book which stuck to the limits of 1928, implying precisely that they were willing to see it used. In reality there was no enforcement at the level of formal legal action occurring of deviations outside the 1928 limits any more than within, though they may have provided a standard for informal persuasion towards conformity.

Revision of canon and courts but no revival of discipline

The post-war era saw a concerted effort to reform the institutions of the Church of England, with an agenda for reform of Canon Law set by a Report of 1947, taken up enthusiastically by Archbishop Fisher. As I have recently explored in depth for the example of liturgical dress elsewhere,Footnote ²⁰ much of the canonical revision laid to rest the debated texts of the 16th century and the contested judgments of the 19th century in favour of permissive canons allowing a degree of freedom that satisfied most parties. However, Fisher himself set out an understanding that even so, the new canons were to be regarded as ‘the norm of family regulations’ rather than ‘a rigid code of law’.Footnote ²¹

Reform of the Canons was followed by reform of the ecclesiastical courts, a report of 1954 leading to the Ecclesiastical Jurisdiction Measure 1963, partly still in force. This abolished the Public Worship Regulation Act of 1874 and all previous disciplinary structures, and built on the Clergy Discipline Act 1892 to form a strong distinction between matters which did, or did not, involve ‘doctrine ritual or ceremonial’. The processes to be adopted for the latter (which seem to involve all forms of liturgical disobedience) are deliberately ecclesiastical, with review by a commission from Convocation followed by trial in the new Court of Ecclesiastical Causes Reserved, consisting of a majority of bishops sitting with senior judges. Yet this precise structure seems calculated to discourage cases (none have ever been brought against clergy) and the first judges appointed were advised they were unlikely ever to sit.Footnote ²²

Perhaps most significantly for the practical ordering of liturgy, from the introduction of Series 1 in the 1960s, the Church of England embarked on a generation-long project of liturgical revision and writing. Under the Worship and Doctrine Measure 1974 the integrity of the (almost unchanged) 1662 Book of Common Prayer is preserved, with all new texts offered as alternatives, and in practice most new texts, especially in the era of Common Worship, are themselves a range of options for each possible occasion. Furthermore, a large proportion are not authorised as the sole legitimate text for the purpose, but commended by the House of Bishops under Canon B5, meaning that clergy are still at liberty to select other comparable texts, and many do.

Bringing the history up to the present is the emergence of the present Clergy Discipline Measure 2003 at around the turn of the century, much discussed in this Journal.Footnote ²³ The 1996 report Under Authority Footnote ²⁴ proposed replacing all the disciplinary processes of the 1963 Measure, and including a new offence of teaching or preaching doctrine contrary to that of the Church of England. This could potentially have given a framework for complaints about the conduct of unorthodox liturgy. In the event, Synod amended the proposals to leave ‘doctrine ritual and ceremonial’ under the inactive 1963 provisions. A further attempt to introduce doctrinal discipline was defeated in Synod in 2004 (in the House of Clergy only).Footnote ²⁵ At the time of writing the draft Clergy Conduct Measure retains the distinction which leaves ‘doctrine ritual and ceremonial’ under the 1963 provisions.

The present situation

Where does this leave the Church of England today? Clearly a good deal of informal liturgical discipline does take place. It comes in the form of clergy asking bishops and archdeacons for advice, and being given clear direction. It also sometimes comes from bishops and archdeacons successfully directing clergy to do or not do something in response to a complaint, using their moral persuasion and general sense of authority. Quite properly, such processes are not always recorded, and certainly not publicised. But it remains the case that if a parish or minister is determined to use some unauthorised liturgy (or no authorised liturgical text at all) in defiance of such directions, there appears to be no appetite for any sanction to be imposed upon them in response.

For some, this will be scandalous and frustrating, and only go to prove their opinions of the Church of England. For others, including this author, it demonstrates a certain paradoxical wisdom about how authority can, and cannot be used in a Church founded on the Cross, where the redemption of the world was achieved by submission to, not exercise of, worldly authority, by a Saviour who called men and women to follow him but did not compel them. But this is not a new thought. Writing near the end of his long career in the Church of England, Bishop Hensley Henson of Durham looked out at a Church which sounds very familiar to this day: