Secularizing a Religious Legal System: Ecclesiastical Jurisdiction in Early Eighteenth Century England
Published Online: Jul 19, 2019
Page range: 1 - 36
DOI: https://doi.org/10.2478/bjals-2019-0001
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© 2019 Troy L. Harris, published by Sciendo
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
Explaining how religion goes from a significant and explicit force in public life to an essentially private affair is a complicated business. Political historians of early modern England divide into two camps on the matter. Until comparatively recently, the conventional answer was that religion ceased to be a significant force in public life after the Revolution of 1688.
What did the step toward secularization look like in 1730s England, and how did it happen? Three points emerge from the evidence surveyed here. First, as sketched in Section II, incompatible visions of religious authority in general and the legitimacy of the English ecclesiastical courts were publicly debated well before the 1730s. Second, as shown by the survey of printed literature in Section III, there was widespread support for voluntaristic and divine-right visions. Third, as explained in Section IV, a watershed moment occurred in 1736 when the King’s Bench held, in
As in earlier periods of political change, the proper jurisdictional boundaries between Church and State were very much a subject of discussion at the constitutional level in early eighteenth century England. The bloodless ouster of the Roman Catholic monarch James II and in favor of the Protestants William and Mary (dubbed “The Glorious Revolution” by later Whig historians) forced people to rethink the conceptual bases for many of the Church’s institutions, including the ecclesiastical court system. Why this should have been so is not difficult to understand. If the Lord’s anointed was not secure on his throne, was the one anointing any more secure on his? Stated in more traditional theological terms, was the government of the Church of divine or human establishment? The Act of Union of 1707 created one British state in which there were two established religions, the episcopalian Church of England in South Britain and the presbyterian Church of Scotland in North Britain, officially putting an end to hopes of one kingdom professing one official religion. If episcopal government were of divine origin, then why give up the fight to bring the Church of Scotland into line? If the Church of England’s government were of merely human origin, then why did the Church possess powers not enjoyed by other voluntary associations? For example, by what right did the ecclesiastical court system exist, and by what right did it enforce against lay people the canons of 1603, to which Parliament had not assented? Although such ecclesiological questions had long been the staple of debates between Churchmen and dissenters, such questions now divided the Church of England bishops themselves. The nature and legitimate extent of ecclesiastical jurisdiction was therefore an important battleground in the struggle to define the constitutional position of the Church after 1688.
The starting point for understanding the constitutional role of the Church of England in the eighteenth century is the Act of Union of 1707 uniting the Kingdoms of England and Scotland. The essence of the eighteenth century British constitution, according to Blackstone, consisted in the sovereignty of Parliament. 1
Upon these articles, and act of union, it is to be observed, 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them again, but an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be “fundamental and essential conditions of the union.” 2. That whatever else may be deemed “fundamental and essential conditions,” the preservation of the two churches, of England and Scotland, in the same state that they were in at the time of the union, and the maintenance of the acts of uniformity which establish our common prayer, are expressly declared so to be. 3. That therefore any alteration in the constitutions of either of those churches, or in the liturgy of the church of England, would be an infringement of these “fundamental and essential conditions,” and greatly endanger the union.
Historians have largely ignored or minimized the role of the Church of England and controversy surrounding its courts in their accounts of the eighteenth century British constitution.
The latent tension between Parliamentary sovereignty (premised upon a voluntaristic theory of government) and divine right episcopacy became patent in the Bangorian Controversy. Sir Leslie Stephen described the Bangorian Controversy as “one of the most intricate tangles of fruitless logomachy in the language.”
According to the conventional historiographical treatment of the Bangorian Controversy, it was an argument over the nature of the institutional Church, in which Benjamin Hoadly, then bishop of Bangor, challenged the legitimacy of divine right theories of episcopacy, arguing instead that the Church was a merely voluntary association.
The title of Hoadly’s sermon (“The Nature of the Kingdom, or Church, of Christ”) pointed to the fundamental premise of Hoadly’s argument: the Church was nothing more nor less than the Kingdom of Christ, which, as Christ told Pilate, was not of this world.
If any men upon earth have a right to add to the sanctions of his law; that is, to increase the number, or alter the nature, of the rewards and punishments of his subjects, in matters of conscience, or salvation: they are so far from kings in his stead; and reign in their own kingdom, and not in his.
Needless to say, there was not much room in this view of the Church for ecclesiastical courts judging the internal forum, nor their ultimate weapon, excommunication.
Although Hoadly ostensibly aimed his attack at the nonjurors’ theory of the Church as a divinely-ordained institution, his denial of the powers claimed by Church of England clearly implicated the ecclesiology of High Church Tories and Whigs as well. Drawing out the antinomian implications of Hoadly’s position, Sherlock claimed that Hoadly’s heresy was dangerous to civil as well as religious society, arguing that Hoadly had sapped the foundations of the moral law and, therefore, the basis upon which magistrates of all sorts ensured the existence of moral society.
[A]ll articles and creeds are destroyed at once, which were settled by men so assembled [i.e. “by legal authority, in due subordination to the civil magistrate”]. All acts of general councils were void and null from the beginning. Nay, even the decrees of the council at Jerusalem, held by the Apostles themselves, were never of any force; they sat there as usurpers, they never had a right to make any laws, which belongs solely and peculiarly to their King Christ Jesus. All, without exception, who have ever gathered themselves together in a synodical meeting, to join in the framing such canons, rules or ordinances, as have been thought proper to oblige others to a unity of profession, are, in your Lordship’s notion, no better than invaders of Christ’s Kingdoms, erectors of an illegal tribunal, and exercisers of an authority, that was never committed to them.
Upon these principles, I do not see how your Lordship can offer to take your place in the provincial synod: how you can require subscriptions or declaration of those whom you ordain, or exercise almost any act of episcopal jurisdiction.
In short, Snape implied, it was self-defeating for Hoadly to seize upon Christ’s statement to Pilate because, on Hoadly’s own terms, the council that decided to include the Gospel of John in the canon had no legitimate rule-making power. More to the point, Snape defended the legitimacy of “episcopal jurisdiction” as such, including the right to participate in making canons “to oblige others to a unity of profession.”
A similar point in defense of the Church’s coercive power was made by the nonjuror William Law. In his refutation of Hoadly’s view that the Church’s sentence of excommunication carried no weight with God, Law argued that
the power of excommunication, is a judicial power, which belongs to particular persons which they have a right to exercise from the authority of Christ; and that persons so excommunicated are not to be looked upon [as Hoadly argued], as persons who are only to be abhorred and avoided by Christians, as any man may avoid those he dislikes, but as persons who are to be avoided by Christians, because they lie under the sentence of God, and are by his authority turned out of his Kingdom.
Thus, Law rejected Hoadly’s notion of the Church as a voluntary association and, with it, the idea that excommunication was an illegitimate, human invention. Quite the contrary, Law argued, the coercive authority of the Church was directly from God.
Although the Bangorian Controversy is generally taken to have died down as quickly as it erupted, such was not the case. To the contrary, one of the central themes of the Bangorian Controversy, the legitimacy of ecclesiastical jurisdiction, continued to be debated, albeit in different contexts, well after the prorogation of Convocation in 1717.
There was widespread support for both the voluntaristic and divine-right view of ecclesiastical authority, and the legitimacy of the ecclesiastical courts was an important aspect of the debate in the 1730s over “Church power.”
One way in which political debates of the day were carried on outside London was through sermons, often printed for consumption by a wider audience than those present in person. What the assize sermon was to the assizes, the visitation charge was to the ecclesiastical courts. Not surprisingly, therefore, the visitation charge was often the occasion for clergy to reflect upon the nature of the post-Revolutionary Church and the place of the ecclesiastical courts in it. Bishops’ and archdeacons’ visitation charges to the clergy under their jurisdiction are of particular interest in this regard because the visitation was the occasion upon which the disciplinary jurisdiction of the ecclesiastical courts was exercised. Indeed, it is probably no coincidence that some of the most thorough defenses of the Church’s government were published as visitation charges. For example, Edmund Gibson used a visitation charge to attack Matthew Tindal’s
Bishops were expected to visit their dioceses in the first year after their enthronement (the “primary visitation”) and every third year thereafter (the “triennial visitation”), archdeacons conducting visitations in the years in which there were no episcopal visitations. John Ayliffe, Viviane Barrie-Curien, To be sure, the distinction between “High” and “Low” is not a hard-and-fast one. I use the terms simply to designate two different ways of thinking about ecclesiastical jurisdiction. “High Churchmen” (equivalent modern terms would be “right-leaning,” “conservative,” or “traditional” Churchmen) were generally sympathetic to divine-right theories of ecclesiastical authority. “Low Churchmen” (whose counterparts today would be styled “left-leaning,” “liberals” or “progressives”), on the other hand, viewed the Church as essentially human in origin and thus like other voluntary associations of people.
Because the chief object of the visitation was the inspection of persons and things subject to ecclesiastical jurisdiction, the role of the ecclesiastical courts in the discipline and government of the Church was a recurring theme in visitation charges, particularly among High Churchmen such as Edmund Gibson and Richard Smalbroke. Indeed, Gibson devoted a great deal of attention to the subject of visitations early in his career, while Archdeacon of Surrey. A collection of Gibson’s early writings on the subject published in 1717 contains themes that ran through many visitation charges.
In laying out the several steps and methods to be taken in a parochial visitation, I have pursued the course which I conceive to be strictly legal; by a citation in form, and by the attendance of register and apparitor, as well to make due proof of the citation, as to render the admonition for repairs a proper foundation for proceeding directly to ecclesiastical censures, in case they are disobeyed. But I have found by experience, that it is in many respects much more for the ease and convenience of archdeacons, and not less for the benefit of the Church, to proceed in that work unattended by officers, at least for the first time: and if it shall appear, that the directions which the archdeacon gives for repairs, in his own person and upon his own view, are disregarded (as they very rarely will be,) then may he have recourse to the other more solemn and judicial way.
Other bishops, too, used their visitation charges to encourage discriminating use of the Church’s courts. Under Canon 109, the primary responsibility for initiating proceedings in the ecclesiastical courts for morals offenses within the parish lay with the churchwardens. In addition, however, the clergy themselves were authorized to present such offenders, under Canon 113. Richard Reynolds, Bishop of Lincoln, saw in this dual responsibility an opportunity to reform the manners of the people, although, like Gibson, Reynolds stressed the use of the ecclesiastical courts only as a last resort.
Nor did Gibson shrink from suggesting how his clergy could make use of the ecclesiastical courts:
Two vices I will name in particular, which are more common and more daring than the rest, drunkenness and swearing: But notwithstanding they are so very common, and that the Canon concerning presentments makes express mention of those two by name, yet I believe they are seldom found among the crimes presented: For what reason I cannot conceive, unless it be, that the laws of the state have appointed temporal penalties for them. But as there is nothing in those laws that has taken away the authority of the Church, so is there no cause why the exercise of that authority in these particulars should be discontinued; at least, till we see the temporal laws executed with greater zeal and better effect.
Visitation charges also frequently touched upon the importance of the payment of ecclesiastical revenues, particularly tithes. Gibson, for example, was concerned that clergy would allow themselves to be deprived of the ecclesiastical revenues that were their due, to their own prejudice and to the prejudice of their successors.
This is a piece of prudence that would be extremely advantageous to the interests of the ecclesiastical body in general, of which every minister is a trustee as well as a member. And indeed, till this method be practiced more universally, every successor in a parochial cure is unavoidably in a state of ignorance for several years, and liable to be imposed on by those that are ready to make use of so inviting an opportunity; who, though very ignorant in other respects, are often very knowing in those affairs, within the narrow limits of their own parish, to which they have been bred and have confined their thoughts. Affairs, in which clergymen have been little instructed, and therefore come into an active state of life raw and unskillful in secular business, and that more especially from the retirements of the university. And if the impositions upon almost every clergyman during the first years of his incumbency on a parochial cure were duly computed, the benefit of the method now recommended would appear in a much clearer light.
The efficacy of the ecclesiastical courts as an instrument of Church government was subject to practical limitations, however. Because the Toleration Act meant that Trinitarian Protestants were no longer obliged to worship in the Church of England, a too-ready use of the courts, for example to enforce payment of tithes, could backfire, as John Dudley, Archdeacon of Bedford, pointed out:
If we betake ourselves to methods which the laws direct in vindication of our rights or injured characters, ‘tis no unusual thing for the more obstinate and illiterate sort immediately to turn their backs upon the Church to desert and forsake its worship and communion. The next step is to shelter themselves in a conventicle, and by this means they imagine, they shall fully avenge themselves upon their own pastor, by running into the embraces of such as are industrious to promote separation from the Church, to foment and encourage divisions and schisms.
In sum, many bishops and archdeacons used their visitations as opportunities to recommend the use of the Church’s judicial machinery to carry out the twin goals of inspection of persons and things. Significantly, the authority of the courts and canon law was not so much defended as assumed. The case was very different with other bishops and archdeacons, however.
One might expect Low Churchmen such as Hoadly to ignore or denounce the ecclesiastical courts in their visitation charges. In fact, however, their approach was rather more subtle. When Low Churchmen visited their jurisdictions at all, they tended to stress their view of the Church as a voluntary association, admitting the obligation of only those laws to which clergymen had explicitly assented. Hoadly, for example, plainly implied that, apart from the Act of Uniformity (which bound laity and clergy alike), clergymen were obliged to obey the law of the Church only insofar as they had voluntarily engaged to do so.
A similar tack was taken by Thomas Sharp, Archdeacon of Northumberland. In his visitation charge of 1731 on the “Different Degrees of Obligation to the Ecclesiastical Laws,” Sharp virtually rejected the authority of any laws to which individual clergy had not explicitly consented.
I apprehend we may look upon ourselves as discharged from all such [laws] as are by length of time, and through desuetude, antiquated and grown obsolete, though they were never actually repealed by any proper authority. . . . Of this sort are the provincial and legatine constitutions. . . . I should indeed except the spiritual courts. I do not know what weight the old constitutions may have in them. To those who study the canon law they may be perhaps of great service; but with respect to the parochial clergy, whose obligations I am now considering to conform themselves to the canon laws, these old constitutions seem to have lost their force and credit; and serve at present like old coins, rather for matter of curiosity or criticism, than for immediate use.
The canons of 1603 stood midway between the Prayer Book and the “old constitutions,” in point of obligation. However, even many of these, Sharp contended, were impracticable, and the clergy were not bound by such if they could claim an express or tacit dispensation from their observance.
That Low Churchmen saw visitation charges as a natural opportunity for reiterating their antipathy toward theories of divine-right episcopacy is shown with particular clarity in the 1731 charge of William Bowman, vicar of Dewsbury. In arguing that the clergy claimed powers they did not rightfully possess, Bowman echoed Hoadly’s argument in the Bangorian Controversy that the existence in England of a Church with temporal authority created an
If indeed the clergy of any nation have a power of making laws and canons independent of the civil powers, if they can assemble together in Convocation, when and where they think proper, to inquire into offenses and regulate the Church, they are so far from being subjects, that they are really the presidents and princes of the earth; kings of temporal kings, to whom all mankind are subjects. If they can do this, what should hinder them from unthroning majesty? What should hinder them from making laws contrary to laws, and overturning nations at pleasure?
With respect to the power of excommunication, Bowman likewise endorsed Hoadly’s position:
By authoritative absolution and excommunication, the clergy sometimes mean an absolute power of admitting into, or excluding from, the kingdom of heaven, whom they think proper; at other times a power of admitting them into, or excluding them from their society upon earth, in a judicial way.
In the later case, I have showed before they have no authority, but what they derive from the civil power; as it appears likewise from the procedure of all our ecclesiastical courts.
To the contrary, Bowman argued, the power of excluding people from heaven belonged to God alone.
One wag published a versification of Bowman’s sermon, in which the foregoing passage concerning Convocation’s power of enacting canons was rendered thusly:
Fine times indeed, were priests permitted
To make what acts and laws best fitted
Their int’rest or their inclination,
Without leave of the heads o’ th’ nation,
In Convocation meet, debate,
And what they pleas’d to regulate!
For thus o’er princes they’d be Kings,
And crowns and scepters useless things.
This once allow’d, the rogues would soon
Kick all their princes from the throne:
Laws against laws they wou’d enact,
And ev’ry nation be ransacked:
All Kingdoms be turn’d topside turvy,
To gratify their humour scurvy.
Bowman’s observations regarding excommunication received similarly witty treatment:
Authoritative absolution
Is ev’ry way a gross delusion;
A saucy impudent pretension,
An insolent high Church invention.
Sometimes this term in clergy hands
For pow’r without all limits stands,
Of shutting out of, or admitting
Such men to heav’n as they think fitting:
It signifies, at other times,
A pow’r, for some enourmous crimes,
To vote men in the Church communion,
Or seperated [sic] from its union.
In one sense I’ve already shewn,
Our bold pretenders pow’r have none,
But what they from the state receive,
Which pow’rs of every sort must give.
No argument like matter of fact is;
Remember therefore what’s the practice
O’ th’ courts ecclesiastical,
Since popery receiv’d its fall;
Then every word, I’ve utter’d here,
True as the Gospel will appear.
Not everyone was so sanguine about the import of Bowman’s sermon, however. One anonymous author responded that the Church’s authority over its members was entire, notwithstanding the legislative supremacy of Parliament.
Visitation charges were not the only form of practical literature that implicated the constitutional position of the Church and its courts. A characteristic feature of eighteenth century legal literature in general and the literature of the canon law in particular was its use of historical evidence to lend legitimacy to a particular political viewpoint. This section takes a close look at the work of two of the most important practitioners of the craft, Edmund Gibson and John Ayliffe.
By the early eighteenth century there were numerous specialized treatises on aspects of ecclesiastical jurisdiction which often had a clear polemical element. For example, William Bohun’s book,
The single most controversial defense of the ecclesiastical courts in the early eighteenth century was Edmund Gibson’s “Introductory Discourse, concerning the Present State of the Power, Discipline, and Laws, of the Church of England,” contained in his 12
Like the Bangorian Controversy and the visitation charges, the Gibson-Foster-Andrews debate over the constitutional position of the Church revolved around two related issues, the legitimacy of the Church’s coercive jurisdiction and the authority of the canon law. Gibson made explicit the divine-right premise upon which his “Introductory Discourse” depended:
The power which is vested in the bishops, for the due administration of government and discipline in the Church of England, appears by the form of consecration to have a twofold original, from the word of God, and from the laws of the land.
As a result of this “twofold original,” Gibson argued, the Church’s coercive jurisdiction over spiritual matters existed by divine right, but the specific manner in which the Church exercised that jurisdiction was derived from the Crown. Ecclesiastical Appeals Act 1532, 24 Hen. 8, c. 12 (Eng.); Gibson,
According to Gibson, the sources of English ecclesiastical law were three in number: the common law, the canon law, and the statute law. Consistent with Blackstone’s later classification, Gibson treated the common law as the common custom of the realm and therefore part of the
Foster took issue with both of Gibson’s arguments, denying that the Church had any power by divine right, much less the power to pass canons binding upon the laity without Parliamentary consent. He premised his attack on Gibson’s
When our blessed Savior was questioned by Pilate, concerning a kingdom he was charged to have aspired after, in opposition to the government under which he lived, he confessed that he came into the world in order to set up a kingdom in it; but he, at the same time, satisfied the Roman governor, that his kingdom could give no reasonable ground of jealousy to Caesar; for it would not interfere with any of Caesar’s rights. It was not a kingdom of this world; it was the empire of truth and righteousness in the hearts of his faithful subjects; whose obedience he intended to reward in his kingdom, in the future invisible state.
The result of this view of the Church was that any power the Church had was by virtue of human law alone. Indeed, a recurring theme in Foster’s critique of Gibson’s
With respect to the authority of Convocation to adopt canons binding upon the laity, Foster again echoed themes of the Bangorian Controversy:
If the
The response to Foster’s attack came not from Gibson himself but from one of the advocates of Doctors’ Commons, John Andrews. Andrews rejected the premise of Foster’s argument and, with it, the conclusions he derived:
The first objection, then is, that his Lordship [i.e. Gibson] by deriving the episcopal power from a twofold original, viz. from the word of God, and from the laws of the land, is either contradictory, or setting up a claim of independency on all human authority.
The law of God is one of the grounds of the laws of England, an essential and constituent part thereof, and by being incorporated therewith does not thereby lose its divine original, unless the author would insinuate that claiming a right from the law of God is setting up a foreign power. A recognition therefore of a right under a divine authority, cannot be called an original grant by the laws of the land; yet where a statute is declaratory, what is thereby declared may with great propriety be said to appear by that statute.
Moreover, Andrews denied that basing the jurisdiction of the Church upon divine law entailed erecting an
That the temporal and spiritual jurisdictions are separate and distinct, both flowing from the Crown, as the fountain of jurisdiction, and under his majesty as supreme head of both; is the language of all our laws, and the opinion of all our greatest lawyers.
Thus, the basic issue was the constitutional position of the Church: did the sovereignty of the King-in-Parliament over temporal matters extend to ecclesiastical matters as well (as Foster argued) or did sovereignty over ecclesiastical matters reside in the King-in-Convocation (as Andrews maintained)?
Andrews also addressed the authority of Convocation to legislate for the country. Noting that Foster had asserted that, “the subject is bound by no laws, to which he is not a party in person or by representation,” Andrews countered that,
I believe he will hardly persuade the gentlemen of Great-Britain, especially those of the House of Commons, so far to part with their temporal rights, as to discharge all those subjects of Great-Britain from their obedience to the laws made by them in Parliament as part of the legislature, who have no vote in the choice of members, who are at least three parts in four, and are therefore not otherwise represented than by the implication of law.
No, Andrews argued, the premise of Foster’s attack on Convocation served equally to undermine the authority of Parliament. Nor did Foster’s common law sources undermine Convocation’s authority, Andrews maintained. After reviewing the cases upon which Foster relied, Andrews concluded that, “as I am informed, there never yet has been any one determination in our courts of justice, that in matters spiritual the laity are not bound by the canons: And if there had, the Examiner [i.e. Foster] is not guilty of concealments of that kind, and would, no doubt, have mentioned it.”
Not content to meet Foster on legal grounds alone, Andrews also published a considerably less technical (and more personal) attack. Seizing upon Foster’s obvious allusion to Hoadly’s sermon, Andrews began his sarcasm-laden attack:
The author of the
In case Foster’s guilt was not sufficiently established by his association with Hoadlian theology, Andrews made a point of further associating Foster with the disaffected Parliamentary opposition to Walpole’s ministry generally. Thus, Foster
discovers mines, catches the Bishop [i.e. Gibson] laying trains, sees him at work deep under-ground, undermining the laity; he shews the clergy in all bad lights he can; thus acting, but stupidly, the Craftsman; the Bishop of London is his Sir R__ rt, and the Ministry his Ministry.
As Andrews’s allusion to Walpole suggested, ecclesiastical jurisdiction was very much an issue in Parliament as well as the press in the 1730s.
John Ayliffe (1676-1732) shared much of Foster’s view of the constitutional position of the post-Revolutionary Church. Ayliffe’s 12
Ayliffe opened the
The “Historical Introduction” merits detailed analysis for several reasons. First, as the name implied, it was a survey of the major historical sources of the canon law, from the Apostolic Constitutions to Ayliffe’s own day, with a particular focus upon the canon law in force in England. Second, Ayliffe’s citations revealed that many of the authors upon whom he relied were his contemporaries on the continent. Third, in addition to citing his contemporaries, Ayliffe also cited ancient and medieval authors as if they were his contemporaries, giving the work of his fellow canonists a certain timeless quality. Fourth, although the “Historical Introduction” shows that Ayliffe was well aware of the work of continental historians of the canon law, his substantive discussion of the canon law in England is almost entirely devoid of reference to the continental canonists. The significance of this approach is that Ayliffe, like the canonists of the Reformation period,
Ayliffe divided his “Historical Introduction” into three main topics: the canon law in general, the leading books on the canon law and their authors, and the canon law as it existed in England. Ayliffe,
The central argument of the “Historical Introduction” is that the canon law of England predated the rise of the medieval papacy and therefore should not be confused with the “papal law.” Thus, Ayliffe distinguished three aspects of the “canon law.” First, there was the canon law “properly and strictly speaking . . . which consists only of the canons of general and provincial synods.” Next was “papal-law, . . . [which] entirely depends upon papal usurpation and authority.” Finally, the law of the Church (
With reference to the canon law “properly and strictly speaking,” Ayliffe began by summarizing the available historical scholarship touching the Apostolic Constitutions ( Ayliffe, Melchior Canus,
Because of the persecution of Christians, Ayliffe argued, the Church was unable to legislate for itself prior to the reign of Constantine (306-337). The grant of Constantine’s license to the Church to assemble and pass laws for its own regulation was a mixed blessing, however. In language that might have come straight from Benjamin Hoadly or Michael Foster, Ayliffe argued that, since Constantine’s time, the clergy have “in several countries, contrary to the welfare and peace of the commonwealth, and the legal establishment of the civil power, erected themselves Ayliffe,
Having established that the English Church had its own canon law before the rise of papal lawmaking in the late eleventh-early twelfth centuries, Ayliffe surveyed the major texts and commentators associated with what he called the “papal law.” The rise of papal lawmaking reflected the rise in papal claims and pretensions, Ayliffe suggested. The thin edge of the wedge, he claimed, was the mangling of Justinian’s
In England, the papal usurpation began with Augustine of Canterbury who succeeded in subverting the ancient Christianity of the noble Saxons.
It likewise sufficiently appears that the canon law was received here in England, tho’ under certain limitations and restrictions from the common law of the realm, since the greatest part of the decretal constitutions in the canon law have been found to have been sent hither by several popes upon controversies here among us in ecclesiastical causes.
Ayliffe ended the “Historical Introduction” with a brief discussion of the place of the English canon law in the English legal system overall. Ayliffe identified the “three foundations” upon which the laws of England were built: general customs, statute law (“which is made by King, Lords, and Commons”), and foreign laws that have been received and “confirmed by usage and length of time.”
tho’ not particularly confirmed by Parliament; because they were made in pursuance of the authority given by Parliament, and confirmed by Royal Assent. For tho’ indeed no Canons of England stand confirmed by Parliament, yet they are the laws which bind and govern in ecclesiastical affairs. For the Convocation may with the King’s License and assent had under the Great Seal, make canons for the regulation of the Church, and that as well concerning laics as ecclesiastics.
Ayliffe’s “Historical Introduction,” like Gibson’s “Introductory Discourse,” reflected the balancing act carried on by High Church Whigs generally. They wanted to affirm both the sovereignty of the King-in-Parliament over temporal matters and the sovereignty of the King-in-Convocation over ecclesiastical matters. To avoid the problem of an
The events of 1688 served to undermine the authority of the Church in a number of ways. For present purposes, suffice it to note that the ouster of James II in favor of William and Mary was accomplished with the support of those who dissented from the Church of England, and those dissenters were rewarded with the Toleration Act of 1689. That the Church experienced a number of additional Parliamentary assaults in the period 1731 to 1736 has been noted by several historians.
The attacks of the 1730s upon “Church power” began with a frontal assault upon the clergy’s chief source of financial support, namely, tithes. The nature of the obligation, if any, to pay tithes had been a point of contention for many years, the Quakers’ insistence that ministry should be supported entirely by voluntary contributions being perhaps the most famous example of dissent from prevailing assumptions. But beneficed clergy were not the only ones entitled to receive tithes. Prior to the Reformation, tithes arising in many parishes had been “appropriated” to various religious houses. The right to continue receiving the tithes so appropriated passed with the former monastic lands into lay hands after the Reformation. According to Blackstone, more than one-third of the parishes in England had been appropriated to religious houses at the time of the dissolution. 1
Early in 1730/1, a bill was introduced into Parliament that would, “prevent suits for tithes, where none, nor any composition for the same, have been paid within a certain number of years.” 21 HC Jour. (1730) 650 (Eng.).
are by length of time burnt, lost, destroyed or defaced, and the said lands, tenements and hereditaments altered, severed or divided, and held and enjoyed by distinct purchases, conveyances or descents, and their old names, boundaries and descriptions by enclosures or otherwise wholly lost, so as it would be difficult now, and impossible in time to come to make out such discharges. 7 House of
Thus, the bill to prevent suits for tithes, if passed, would have cut of all claims for tithes asserted by both laymen and the clergy, in both ecclesiastical and civil courts where the tithes had not been paid for a specified number of years. The bill was read for the first time on 4 March 1730/1, 21 HC Jour. (1730) 659 (Eng.).
Although the bill to prevent suits for tithes had a relatively short Parliamentary career, it was long enough to provoke several interesting publications. The first salvo was fired in an anonymous pamphlet, variously attributed to Edmund Gibson and Thomas Sherlock.
Nor was the author impressed with the bill’s proposed solution to the alleged evils. As he pointed out, “The law concerning exemption from tithe, as it stands at present, is thus: If tithe be demanded by the incumbent, and the proprietor of the lands pleads an exemption, the incumbent insists upon common right as the general rule of law; and it rests upon the proprietor to prove the exemption.”
In a most revealing answer to the foregoing pamphlet, William Arnall, one of Walpole’s own pamphleteers, argued that the question was not what the law was but what the law ought to be. Arnall maintained that the forced payment of tithes was not justified by nature and, indeed, was a violation of liberty of conscience. 2
In 1732 and 1733 there continued to be much debate in the press over tithes generally as well as proposals to repeal the Test and Corporation Acts, but no new Parliamentary bills were introduced until 1733. With respect to the development of opposition politics, however, a significant change seems to have taken place. Whereas the opposition Whigs’ 1731 bill to prevent suits for tithes had been a solo effort, by 1733 opposition Whigs and Tories had made common cause. The 22 HC Jour. (1732) 37 (Eng.). No copy of the original petition appears to have survived.
The petition was referred to a committee, one remarkable feature of which was its leadership. Sykes,
What began as a matter of local concern quickly mushroomed. On 15 February 1732/3, two days after receipt of the Derbyshire petition, the Commons voted to instruct the committee handling the petition to consider not only the abuses alleged in the Lichfield consistory court, but also alleged abuses in the ecclesiastical court system throughout England. On 9 March 1732/3, the committee issued its report which recommended, Marriage Act 1753, 26 Geo. 2, c. 32 (Eng.);
The Church courts bill would have changed the procedures followed in the ecclesiastical courts in seven important ways. First, it would have eliminated any criminal suits begun by inquisition or denunciation; the only such suits that would have remained would have been those begun by accusation, with the accuser required to post with the court a bond promising “to prosecute such suit or information with effect, and to pay _____ costs to the defendant or party accused, in case such defendant shall not be found guilty; or if the suit or prosecution be abated or discontinued for the space of ________.” 7
Edmund Gibson responded anonymously to the Parliamentary scheme regarding the Church courts, leveling four specific objections against the bill. First, he pointed out that the fact-finding procedure of the ecclesiastical courts was no different from that of the Chancery, in which the Chancellor alone determined disputed issues of fact. Second, he argued that the temporal courts themselves recognized the validity of the canonical procedure. For example:
When a cause of property is depending before them, and is found to turn upon the point of marriage or no marriage, the judges of Westminster-hall do not send that fact to be tried by a jury, but they send it to the ecclesiastical court, to be examined and determined by the rules and methods of that court, to which the cognizance of matrimonial causes properly belongs.
Third, Gibson suggested that the ineffectiveness of the temporal courts in executing the laws against vice that were already on the books counseled against enlisting those courts’ help in enforcing all the other crimes of which the ecclesiastical courts had cognizance. Finally, Gibson argued that curtailing the ecclesiastical courts’ criminal jurisdiction would hamstring the ability of bishops to discipline their clergy:
it is easy to foresee what the consequences must be, if negligent or irregular incumbents were allowed to go on securely, as long as they can prevail with the churchwardens not to present them; when they know at the same time that the hands of the bishop are tied up, and have no cause to apprehend that any other accuser will be found, so zealously disposed, as to undertake the prosecution at his own charge.
Consistent with his earlier published reform proposals, Gibson had no objection to limiting the use of excommunication to spiritual causes. But the bill was ambiguous, arguably eliminating the availability of excommunication in both temporal and spiritual causes. If the more expansive reading were adopted, Gibson argued,
the Church of England will be thenceforth deprived of a right which belongs to every Christian church, and which all other churches actually enjoy at this day, viz. the right of judging what persons are fit or unfit to be excluded from Christian communion, and restored to it.
That the True Church had any such right to judge “what persons are fit or unfit to be excluded from Christian communion, and restored to it” was, of course, precisely what Benjamin Hoadly had denied in the Bangorian Controversy.
The Church courts bill was not only unnecessary but also unwise, some authors argued. Gibson gave two practical reasons why passage of the bill would be imprudent: failing to require the probating of wills would prejudice individuals’ property rights and effective elimination of the ecclesiastical courts’ jurisdiction would discourage the study of the civil law, the knowledge of which “is so useful and even necessary in all transactions with foreign powers, as being the known rule of conducting public treaties, and the only rule in which the several powers in Europe agree.” An anonymous author repeated may of Gibson’s arguments and added that tinkering with the ecclesiastical courts in the manner proposed would upset the nation’s delicately-balanced constitution:
But if be enacted, that the same fact, now triable by the ecclesiastical judge be tried by a jury, according to the customs of Westminster-hall, all contests relating to the regularity or validity of any controverted verdict, and indeed every dispute that arises while the cause is under jurisdiction of the secular court, will be determinable in the House of Lords, and is therefore depriving his Majesty of a part of his supremacy and ultimate jurisdiction, to the increase of power in other branches of the legislature. And such alteration, by enervating the power of the Crown, and throwing too much into another scale, must necessarily tend to the destroying of that balance, by the due preservation of which, we can alone be free from any apprehensions of anarchy on the one hand or tyranny on the other.
Moreover, the author argued, the bill exposed subjects to a greater danger of frivolous criminal prosecution, due to the difference in evidentiary standards of the common law and ecclesiastical courts:
the courts of common law admit of one evidence only, and convict upon the bare testimony of one single witness; whereas, by the civil and ecclesiastical law, no man can be convicted of any fact, but by the concurrent attestation of two credible persons. Many therefore would be convicted in the common law, where there is only one evidence to a fact, who would never have been so much as prosecuted in the ecclesiastical court, under its present situation and economy; since it is notorious, men cannot be convicted there upon the bare testimony of one single evidence.
Arguing in support of the bill’s proposed alterations, William Bohun sought to focus attention upon the alleged financial burden of the ecclesiastical courts.
Compared with the Church courts bill, the Church rates bill was a model of simplicity. It contained three major provisions, each of which increased the responsibilities of the justices of the peace at the expense of the ecclesiastical courts. First, it transferred authority for confirming Church rates from the ecclesiastical courts to the JPs, with a right of appeal to the Quarter Sessions. Likewise, it shifted jurisdiction for the prosecution of those who failed to pay their assessments from the ecclesiastical courts to the JPs. Third, it required the churchwardens to lay their accounts before the JPs, rather than any ecclesiastical authority. 7 House of
The Church rates bill excited relatively little attention in the press, possibly because the bill did not propose abolishing Church rates altogether, only changing the mechanism for their confirmation and collection. While such a transferal of jurisdiction from the ecclesiastical courts to the justices of the peace would seem to be entirely to the disadvantage of the former, disadvantaging the Church courts was not necessarily the same thing as conferring a positive benefit upon the JPs. Quite the contrary, a reasonable justice might well have regarded refereeing disputes over Church rates as an unwelcome addition to his judicial burden, especially if there were “frequent differences . . . which occasion great delays” over the collection of Church rates, as the bill asserted.
Gibson published a brief response to the bill, arguing that confirmation of rates had always been part of the bishop’s jurisdiction, pursuant to his duty to ensure that churches were kept in good repair.
The third proposal that came out of the Derbyshire petition was for a bill to prevent clandestine marriages. The same Committee that produced the Church courts bill and the Church rates bill presented four specific recommendations to be included in a bill on clandestine marriage, three of which the Commons voted to approve. The first proposal was that no marriage license be issued without the affidavit of one of the parties to be married, specifying their ages, qualities, and parishes. The second was that anyone seeking a marriage license should post a bond, which would be forfeitable in the event that the license had been procured on the basis of false information. Third, the committee proposed that no marriage license should be granted to anyone under age without the consent of that person’s parent or guardian. Finally, it was proposed that no clergy in prison or subject to the rules of any prison ( 22 HC Jour. (1733) 125 (Eng.).
As the proximate cause of the failure of the Church-Whig alliance, the Quakers’ tithe bill of 1736 has received more scholarly attention than the other Parliamentary assaults upon the ecclesiastical courts of the 1730s. 7 Taylor,
Lord Chief Justice Hardwicke’s opinion for a unanimous Court of King’s Bench in
The facts of the case were these: Thomas Crofts promoted a cause against John and Ann Middleton in the consistory court of the diocese of Hereford, alleging that the Middletons were married clandestinely, without banns or license as required by the canons of 1603. The Middletons sought a prohibition from the King’s Bench, on the basis that the statute 7 & 8 Will. 3, c. 35, which provided for recovery in the temporal courts of penalties against parties to a clandestine marriage, was the sole remedy in such cases. The first issue Hardwicke addressed in
Now the constant practice ever since the Reformation (for there is no occasion to go further back) has been, that when any material ordinances or regulations have been made to bind the laity as well as the clergy in matters ecclesiastical, they have been either enacted or confirmed by parliament; of this proposition the several acts of uniformity are so many proofs; for by these the whole doctrine and worship, the very rites and ceremonies of the Church, and the literal form of public prayers are prescribed and established. Middleton v. Crofts (1736) 26 Eng. Rep. 788, 792.
But Hardwicke stopped short of denuding the ecclesiastical courts of all non-Parliamentary authority. Quite the contrary, Hardwicke’s answer to the second issue raised in
If lay persons cannot be prosecuted or punished by force of these canons, whether the [ecclesiastical] court had jurisdiction of such a cause against them by the ancient canon law, received and allowed within the realm of England.
Hardwicke’s discussion of this issue reflected the conventional wisdom of the eighteenth century: to the extent that the Roman canon law had been received in England it was to be given effect:
I have had occasion already to mention the rule laid down by my Lord Coke in Cawdrie’s case, that such canons and constitutions ecclesiastical as have been allowed by general consent and custom within the realm, and are not contrary or repugnant to the laws, statutes and customs thereof, nor to the damage or hurt of the King’s prerogative, are still in force within this realm, as the King’s ecclesiastical laws of the same.
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It remains then to be inquired, whether that part of the canon law which prohibits clandestine marriages, hath been received and allowed in England.
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That the jurisdiction of proceeding by ecclesiastical censures against lay persons marrying clandestinely, has been received, used, and allowed, in England, was said, by Dr. Andrews in his argument to appear by many entries in the registry of the see of Canterbury, some whereof he cited particularly; and it must be admitted, that a long course of such precedents would be of great weight in a case of this nature, though a few instances would not, because they might pass
It is therefore more material, that this jurisdiction hath received the sanction of a judgment of this court in the case of
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This resolution is in point, and I can find no authority against it; it is also supported by the stronger reason, because though clandestine marriages have always been complained of as a great grievance, and highly detrimental to the public and private families, yet lay persons contracting such marriages, must, without such a jurisdiction in the spiritual court have been absolutely unpunished, until the late statute of W. 3, cap. 35, was made; which is not to be believed.
The significance of this part of the opinion should not be overlooked. Hardwicke treated the canon law as part of English customary law, thereby putting it on an equal footing—so far as Parliamentary sanction was concerned—with the common law. Blackstone echoed this view:
The
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The third branch of [the 1
To be sure, when called upon to resolve a doubtful point regarding the ecclesiastical courts’ jurisdiction, common lawyers such as Hardwicke were more impressed by precedents from their own courts, such as
That the decision in Bush,
While Harris,
The Bangorian Controversy and the debate over Parliamentary proposals to alter the jurisdiction of the ecclesiastical courts raised fundamental questions about the constitutional position of the post-1688 Church in general and its courts in particular. These questions were also discussed in the less overtly polemical literature of visitation charges and legal treatises, and there were very real disagreements regarding the legitimacy of the ecclesiastical courts and the canon law they applied. Everyone who wrote on the subject had an opinion, it seems, and there were many people writing on it. Men such as Gibson and Ayliffe attempted, explicitly or implicitly, to reconcile the contractarian political implications of the Hanoverian succession with divine-right theories of episcopal authority, while others such as Hoadly attempted to extend Lockean contractarian ideas from the state to the Church and its courts.
Hardwicke’s innovation in