729 (1879) 4 QBD 525 CA 730 (1880) LR 5 AC 214.

Bishop o f Chichester732 and Elphistone v Purchas733 wherein the right of the bishop not to proceed under the CDA had been established. In his judgment he stated:

Complaint is made that there may be a wrong unpunished. So there may be at Common Law. The Queen may pardon, the Attorney General may enter a nolle prosequi to any indictment. Why may not the bishop, who is in the nature of

prosecutor, do the same? It is strange that if Mr Carter should be indicted for these offences, the prosecution could be stopped, but cannot be if proceedings are in the Ecclesiastical Courts734

but, that

it does seem to me (I speak with sincere respect) that the discretion here has been most erroneously exercised. It is as though a public prosecutor should refuse to prosecute a man guilty of persisting in a public nuisance against the rights and to the injury of the neighbourhood, because the offender was old and respected and because some of the neighbours worked for him, and because

n ' l c

some prosecutions for nuisance had recently failed.

In the House of Lords Lord Penzance stated that ‘the judge always had a right and

H'lf.

power to refuse to permit his office to be promoted if he sought fit. ’

Mackamess, by his own admission737 was aware of the illegality of Carter’s ritual. However, he was well aware that ‘there are few churches in England in which some

' J ' l O

departure from exact uniformity of ritual may not be found.’ He was not in favour of ‘unrestrained license for wilful departure from the usage and ritual of the church’739 but in favour of ‘as large a measure of liberty as the faith and discipline of the Church would bear.’740

732 (1859) 2 EL & EL 209. In this case the possibility o f the office o f judge being promoted by another had been established. Also that the bishop had discretion whether or not to issue a commission. The court in this case would not have issued a mandamus in any case as the applicant was a stranger to the parish and diocese and had no personal interest in the investigation o f the charges.

733 Elphistone v Purchas (1845) LR 3 PC 245. 734 (1879) 4 QBD 525 at 553 735 At 556. 736 (1880) LR 5 AC 214 at 229. 737 Mackamess Memorials, 156- 178. 738 Mackamess Memorials, 157. 739 Mackamess Memorials, 176. 740 Mackamess Memorials, 177.

Therefore, the approach of Mackamess was that whilst he was not personally in favour of advanced ritual,741 he was in favour of a certain amount of toleration of illegal practice for the greater good of the Christian Church. In this he was, eventually, supported by Tait who, in Convocation in 1881 admitted to turning a blind eye to illegality:

What a Bishop is entitled to say is “I shall shut my eyes, I shall not press hard upon you with regard to a matter of that kind. Of course there are limits, but I shall take care that you are not molested so far as I am concerned”742

Mackamess, in a similar vein, stated that he was prepared to tolerate certain irregularity provided he knew about it and that what he was prepared to tolerate he was ‘prepared to justify in the House of Lords.’743

Conclusions

The ritual controversies of the late nineteenth and early twentieth centuries show a protracted battle between strict application of the law and the setting aside in certain circumstances of that strict application. Central to this battle and debate were the bishops of the Church of England.

Bishops are given an authority by the rubrics of the BCP to resolve doubts on the interpretation of rubrics and to provide or authorise services for occasions for which there is no provision in the BCP. However, that right was not held to extend to overrule ‘what is expressly ordered and prohibited by the rubric’. In such cases the Bishop has ‘no jurisdiction to modify or dispense with the mbrical provisions.’744 Bishops also had a specific role to play in the processes leading to prosecution under the CDA and

PWRA. In the former they were empowered to prosecute, or to allow their office to be

promoted by another. In the latter they had a power to veto any prosecution brought by another eligible party.

In the ordination service the new bishop undertakes to ‘banish and drive away from the Church all erroneous and strange doctrine contrary to God's Word; and both privately

741 He quietly counselled clergy to withdraw from the Society o f the Holy Cross. Mackamess

Memorials, 84.

742 Chronicle o f Convocation 1881, 174. 743 Mackamess, Memorials, 41.

and openly to call upon and encourage others to the same’ and to ‘correct and punish, according to such authority as you have by God’s Word, and as to you shall be committed by the Ordinance of this Realm’. However, in the ordination prayer itself, immediately prior to the laying on of hands, the ordaining bishop or archbishop prays that the new bishop may ‘use the authority given him, not to destruction, but to salvation; not to hurt, but to help’.745 It seems clear that during the ritual controversies of the nineteenth century there was a real tension within the church and within the episcopate between the competing Episcopal functions of discipline and mercy. There were those on the one hand who saw the clear duty of the bishop to ‘banish and drive away’ ritualism and the perceived error it represented and who, when faced with an example such as the Clewer case, would see Mackamess’s refusal to allow prosecution as contrary to his ordination promise to ‘encourage others to the same’. There were also those on the other hand, as has been shown, and particularly the bishops themselves, who saw the dangers in such action and the threat of ‘destruction’ rather than ‘salvation’ in the protraction of legal, ritual and doctrinal infighting within the Church of England.

In evidence to the RCED a number of bishops referred to the jus liturgicum as attaching to the bishop by virtue of his consecration and office. They derived this claim from pre-Reformation canon law, and defined it loosely as the authority inherent in the bishop to make provision for and to regulate the services of the Church. In evidence they claimed this right as justification, inter alia, for leaving unchecked customary liturgical practices contra legem and sanctioning additional, sometimes informal

746 services.

Bishop Moule of Durham gave evidence of occasions on which he had authorised informal services, but also of having authorised the conveying of the sacrament to the sick (not permitted under the BCP rubrics) and of not enforcing the prohibition on Eucharistic vestments.747 Bishop Compton of Ely claimed that ‘it appears that the Act of Uniformity did not deprive the bishop of his Jus Liturgicum\ which he exercised

745 The Form o f Ordaining or Consecrating o f an Archbishop or Bishop, in BCP, 1662.

746 RCED PP 1906 xxxiii para 43. See written evidence o f the Archbishop o f York in RCED PP 1906 xxxiii Appendix A, 4-5.

747RCED PP 1906 xxxiii Appendix A, 16-17. The Archbishop o f York also allowed the carrying of communion to the sick.

mainly by not enforcing prohibitions on ritual practices.748 Bishop Paget of Oxford was happy to go beyond the strict interpretation of the Act of Uniformity as ‘it seemed to [him] that some further liberty was required by practical needs and allowed by almost universal custom.’749

Thus, by the beginning of the twentieth century a number of ritual and ceremonial practices that would have been unthinkable a century earlier had become common in the Church of England. The sometimes conflicting and contradictory judgments of the various courts which had the opportunity to try these matters make clarity on any particular question difficult to attain. The bishops had, since 1881 at least, preferred to veto legal proceedings in favour of (often unsuccessful) attempts to persuade more advanced ritualists to moderate their behaviour. This confusing picture then becomes the backdrop for the attempted liturgical reforms of the early twentieth century.

RCED PP 1906 xxxiii Appendix A, 17 ff. 749 RCED PP 1906 xxxiii Appendix A, 32.