Tuesday, August 2, 2011

Lincoln Judgment

LINCOLN JUDGMENT. The trial of Bishop King for ritual nonconformity by Archbishop Benson in 1890 is remarkable, perhaps even “epoch-making,” on account of the adoption of certain principles as the basis of its judgment, every one of which had been decisively rejected as unsound by the Supreme Court of Appeal. The importance of these fundamental principles has never yet received the attention which is due to the far-reaching results which were thus foreshadowed as possible.

Two preliminary questions had to be decided: (1) That a diocesan bishop is subject to the jurisdiction of his metropolitan; (2) that a bishop is subject, like every other “minister,” to the rubrics and canons of the Church of England when officiating in divine service. The former of these points was decided by the Privy Council itself, which held that “the archbishop has jurisdiction in this case. They are also of opinion that the abstaining by the archbishop from entertaining the suit is matter of appeal to her Majesty.”

Nevertheless Bishop King lodged a formal protest “that the Provincial Synod is the only Court before which a bishop can be tried,” and
that “bishops are not included among the ministers to whom the provisions of the Act of Uniformity apply.” The archbishop, however, gave judgment on May 12, 1899, in favour of his own sole jurisdiction; and it is erroneously stated in the Encyclopedia Britannica that he was supported in this by his suffragan assessors. Such was not the case; their lordships dissented, yet were compelled to listen to the very able judgment in which Archbishop Benson ruled that he was competent to sit in judgment upon them all! A report of this judgment, with illustrative notes, is published by the Church Association (Tract 104).

Bishop King thereupon decided to appear by counsel, but under protest, as not acknowledging the jurisdiction claimed. Nor has the English Church Union, of which he was a member, and which supported the Bishop of Lincoln throughout, ever admitted the jurisdiction of the primate to be well founded. The archbishop further ruled that a bishop, when officiating in any service contained in the Prayer Book, is bound by the same rules as any other “minister.” In this ruling he was supported by all his assessors except Bishop John Wordsworth.

These preliminaries having been decided, the hearing on the merits was reached in February 1900, and judgment was delivered on November 21 in the same year. It introduced the novel claim that a Court of first instance is entitled to review and set aside the previous judgments of the Court of Appeal a principle in itself sufficiently revolutionary. But the decisions ultimately reached did not greatly alter the legal position, except as regards the singing of the “Agnus Dei.” The following summary exhibits the changes actually effected:--

1st Charge. Mixing water with the wines during the service. Before the Lincoln Judgment this was illegal. After the Judgment it still remains illegal; the “Judgment” given being on a point not raised in the articles of charge.

2nd Charge. Hiding the Manual Acts. Before the Judgment this was illegal. After the Judgment it still remains illegal.

3rd Charge. Making the sign of the Cross. Before the Judgment this was illegal. After the Judgment it still remains illegal.

4th Charge. Ministering wine which had been mixed with water during the service. Before the Judgment this was illegal. After the Judgment it still remains illegal; the “Judgment” given being on a point not raised in the suit.

5th Charge. Using lighted candles, “before the sacrament.” Before the Judgment this was illegal. After the Judgment it still remains illegal; the Judgment in the Supreme Court in Martin v. Mackonochie being unaffected by the appeal. On this point the Privy Council merely said that the bishop was not responsible, but they did not legalise the use of lighted candles.

6th Charge. Drinking the ablutions during divine service. Before the Judgment this was illegal. After the Judgment it still remains illegal. On this point the judges declared the drinking of the rinsings after the close of the service to be lawful.

7th Charge. The eastward position during the entire ante-Communion service. This was a new point, and therefore could not affect any previous judgment.

8th Charge. The singing of the “Agnus Dei.” Before the Judgment this was illegal. After the Judgment it is permitted to be done with impunity. This, therefore, though a most important point, is the only one on which a judgment was given at complete variance with former decisions.

But the really grave feature of this Judgment was that it discarded the rationes decidendi, upon which all former judgments in ritual suits had been based. The Privy Council had laid down the dictum that canons and constitutions relating to divine service prior to the Reformation, and even royal Injunctions of any earlier date, “must be taken, if of force at the time of passing of any of the Acts of Uniformity, to have been repealed by those Acts” (Martin v. Mackonochie, L.R. 2 P.C. 389). In Westerton v. Liddell, the first of these suits, it was held that “the word ‘ornaments’ applies, and in this [‘the ornaments’] rubric is confined to those articles the use of which in the services and ministrations of the Church is PRESCRIBED BY the Prayer Book of Edward the Sixth” (Moore’s separate report, p. 156). The importance of these elementary bases of Church Law (which were adopted and followed in all subsequent judgments), arises from the fact that ritual mainly centres around the doctrine of the sacraments and the worship supposed to be due (or to be prohibited) in reference to the supposed indwelling Deity within the consecrated species. In other words, it involves the question of the “continuity” of sacramental doctrine before and after the “Reformation” in England.

The Privy Council had solved these questions by saying, “The Prayer Book, in the Preface, divides all ceremonies into these two classes: those which are retained are specified, whereas none are abolished by name; but it is assumed that all are abolished which are not expressly retained” (Martin v. Mackonochie, ut supra). This elementary principle was fully adopted by the two Archbishops of Canterbury and York in their published “Opinion” on Incense and Processional Lights, July 31, 1899, when the ceremonial use of either was held to be prohibited under section 27 of Elizabeth’s Act of Uniformity, which renders “void and of none effect all laws, statutes, and ordinances whereby any other service ... is limited, established, or set forth to be used within this realm.”

In open defiance of this principle, Archbishop Benson actually adduced such “authorities” as Pope Leo IV., who directed that “Nullus cantet sine lumine . . . et casual” in A.D. 847, and Pope Honorius III., who ordered a priest to be deprived because “sine igne sacrificabat et aqua” (L.R. 1891, P.C., p. 95). This same Pope instituted elevation of the Host and its adoration, according to Fleury (xv. 663). See Cranmer’s Remains, p. 154, and Lord’s Supper, p. 238. These “authorities” were cited in support of the decree of the papal legate, Langton, in the Synod at Oxford in 1222, at which he formally promulgated the decrees of the Fourth Lateran Council ordering the punishment by death of “heretics” who denied the doctrine of transubstantiation (first decreed at Lateran), and had himself taken part in that “General Council.” Another “authority” cited by Archbishop Benson (L.R., p. 96) is John de Burgh, A.D. 1385, who warned English priests to put out the light if the wafer had been consumed, lest “idolatry” ensue, and that if the priest gave an unconsecrated wafer, the communicant must needs commit idolatry because “manducans adorat quod manducat.” He adduced Lev. vi. 13, “fire shall ever be burning on my altar,” as the reason for altar lights! Whereupon the archbishop observes, “It would be contrary to the history and interpretation of the two lights on the Holy Table to connect them with erroneous and strange teaching as to the nature of the sacrament.”

Edward’s Injunction of 1547 was also adduced, ignoring the fact that the “Six Articles” Act was then in full force, and that the statute which gave “the authority of Parliament” to these Injunctions was repealed before the “second year of Edward VI.” had commenced. Lord Cairns had pointed out that the Royal Visitation Articles of 1549, published by Wilkins, Cardwell, and Burnet, forbidding the “setting any light on the Lord’s Board at any time” as being a “counterfeit of the Popish mass,” were evidence of the meaning of the First Prayer Book, and were acted upon by the Ordinaries under that book (4th Report Rit. Comm., p. 220, col. 2); whereas this Judgment assumed that these were (unlike all other Visitation Articles) not enforcements of existing law, but irregular attempts at legislation. In the same spirit they mention that Ridley merely “exhorted” churchwardens in June 1550, to “remove” altars, and urge that this was ultra vires (Judgment, Macmillan’s, p. 20); but are careful not to mention that after the Order in Council of November 23, Ridley at once “required and commanded,” in the king s name (Fox, vi. 744), this (no longer doubtful) alteration. The so-called “historic” treatment is throughout of the same one-sided character, having always this uniform object, viz., to “dissemble and cloak” the notorious fact that an enormous alteration of ritual had designedly resulted from the doctrinal changes which took place in 1548-52, and that the inculpated ritual was regarded by everybody, on both sides, as the recognised expression of the distinctive belief of the “Romanensians.” In pursuit of this object, the draftsman of the Judgment was guilty of very numerous misquotations, of glaring suppressions of evidence, and of downright misrepresentations of fact. For detailed evidence of this, see Historic Grounds of the Lambeth Judgment, published by J. F. Shaw. The very points on which the Judgment turned, e.g. the alleged fact that the communion tables were placed lengthwise down the church at the time when the north-side rubric was devised, is quietly assumed as though it were indisputable, though it is contrary to all the contemporary evidence. Nor was the Judgment even consistent with itself. For example, mixing water with wine during the service was disallowed because the rubric directing this to be done had been struck out in 1552, and had never been restored. Yet the “Agnus” which was not merely struck out, but was, at the last revision, again deliberately rejected by Convocation when its restoration was proposed, was held to be perfectly legal! But perhaps the chief objection to this extra ordinary farrago of sham “learning” is, that if papal decrees, pre-Reformation precedents, and foreign bishops may be adduced as evidence of the existing “law” of the Reformed Church of England, there can be no limit to the application of this Romanising process until the Established Church has been screwed up by clerical judges to the Italian standard. The Judgment of the Privy Council on appeal is hardly worth referring to. Little or no trouble had been taken to assign any reasons for accepting the conclusions of the Court below. The reasoned judgments previously laid down by judges like Lords Kingdown, Cairns, and Selborne were set aside whenever necessary, and without any attempt at confutation; nor was the smallest particle of evidence adduced to supply the lack of relevant vouchers in the Archbishop’s Judgment. The Lord Chancellor seemed determined at any cost to avoid a collision with the priest-party, and willing to accept any way of escape which the Primate’s ingenuity had suggested, as a pretext for avoiding the duty of enforcing the law as laid down by a long succession of the foremost judges in the land. [J. T. Tomlinson.]

No comments:

Post a Comment