The circumstance of the fifth of November in last year (1837) falling upon a Sunday, brought to light a remarkable difference of opinion and practice existing among the Clergy, in regard to the proper service to be used upon that day; which has since been the subject of lengthened discussion in two Ecclesiastical Periodicals, the British Magazine and the Church of England Gazette, involving, as it obviously does, questions of considerable importance; as, for instance, the authority of Convocation, and the extent of the royal prerogative, in regulating Divine Offices. There appear to have been no less than three distinct varieties of opinion upon the subject, producing corresponding difference of conduct. 1. There were some who held the authority of the Book of Common Prayer to be so paramount and exclusive as to oblige them to use only the ordinary service prescribed by it. 2. There were others who considered the particular service as printed now at the end of the Prayer Book to have “every possible authority,” and therefore felt themselves bound to use it. 3. Others, again, considered the particular service now existing to be destitute of due authority, but readily conceded that authority to the particular service of 1662, and accordingly used such parts of that service as were left untouched in the subsequent alterations of it.
With the first the authority of the Civil Legislature, viz. of the Parliament and the Crown; with the second the authority of the Crown alone; with the last the authority of the Ecclesiastical Legislature, i.e. of the Convocations and the Crown, seemed most to be regarded in the celebration of Divine Offices. But, probably, the circumstances connected with the day set people upon the alert to scrutinize the authority of the special services appointed to be used on it with a strictness which they would hardly otherwise have thought it necessary to use. To a considerable portion of the Queen’s subjects, those who adhere to the Church of Rome, the observation of the day is on every account galling and offensive. The original purpose for which it was set apart, namely, that of celebrating the discovery and defeat of the Gunpowder Plot, serves to keep alive in men’s minds a transaction so foul and disgraceful on the part of some members of their Church, as can hardly fail to implicate, in some degree, the community to which they belonged, and in the behalf of which it was undertaken. But the additional parts of the service, in commemoration of the triumphs of William the Third, must sound to the Irish adherents of Rome as a thanksgiving for their especial overthrow, as offensive as “Boyne Water.” To another, not very numerous, but highly respectable body, the Episcopalians of Scotland, those additional parts of the service appear like thanksgivings for the overthrow of their Church, which fell under the civil power of William the Third, when their Bishops refused to transfer to a foreigner the allegiance they were under oath to pay to their native King, and to his heirs. Those, again, in England who revere the memory of the seven Bishops, (five of whom were confessors for the truth under both reigns, committed to the Tower by the Papal King for not betraying their Church, and deprived of their bishopricks by the Presbyterian for not betraying their Sovereign,) and who think that foreign invasion, and royal parricide, to name no other marks by which the æra of 1688 may be noted, call rather for national humiliation than national thanksgiving, are naturally disinclined to the additions to the service which seem to involve all who use them in an approval of the questionable courses which were then taken in hand. [The seven Bishops committed to the Tower by James II. were Sancroft, Canterbury; Ken, Bath and Wells; Turner, Ely; Lake, Chichester; Lloyd, St. Asaph; White, Peterborough; and Trelawny, Bristol. Of these all, save Trelawny and Lloyd, were deprived by William III., and, in addition to these, Lloyd of Norwich, and Frampton of Gloucester.] But whatever might be the grounds of the differences of opinion, those differences, as above stated, both existed and were acted upon. It is very possible that documents relating to this subject may be in existence which may oblige us to qualify or alter the views which these here collected are calculated to convey. But since “de non existentibus et de non apparentibus eadem est ratio,” I hope I shall not be deemed worthy of blame, if, after a fruitless search after others, I make the best use I can of these here presented to the reader. If others should hereafter be produced, I shall hold myself as free to alter my view according to them, as I do now to maintain the conclusion I have drawn from these.
In order to understand the subject, some distinctions must be attended to, which in many instances have been overlooked. 1. First it must be noted that the “particular services” do not, and never did, form part of “the Book of Common Prayer.” II. The observance of the three days, (8th November, 30th January, 20th May.) and the services appointed for them, must be distinguished from the observance of the day of the Sovereign’s Accession, and the service provided for it; for these rest on different authorities. III. The observance of the three days must be distinguished from the use of the services appointed for them; for these also rest on different authorities. IV. The old “particular services,” provided in 1662, must be distinguished from those now appended to the Prayer Book; for these again rest on different authorities. First, The “particular services” do not, and never did, form part of “the Book of Common Prayer.” The Book of Common Prayer was completed in 1661, by the Convocation, with the King’s authority, thus obtaining the force of Ecclesiastical law; and was in the same year ratified and confirmed by the Parliament and the Crown, thus receiving the force of statute law also. The particular services for the three days, were provided by Convocation with the Crown in 1662, and thus have the force of ecclesiastical law; but these were never submitted to Parliament. They were published, and ordered to be annexed to the Common Prayer, by Royal Proclamation.
II. It appears that for the Sovereign’s Accession there is no Act of Parliament, even indirectly recognizing any particular service, nor any Act of Parliament enjoining the observance of any day in any manner. There is a Canon of Convocation, 1640, expressly enjoining the observance of the day, and recognising, as of authority, a particular form of service then in existence, which the reader will find below. But there is also an Act of Charles II., 1661, (13 Car. II. c. 12,) forbidding the enforcement of any Canon passed in 1640: hence those Canons cannot (according to the Act of Submission) be regarded as forming any part of our Ecclesiastical law. So that for the observance of the day of the Sovereign’s Accession, and for the use of the particular service (which, moreover, is not the same as that of 1640), usually bound up with our Prayer Books, there is no law whatever, neither civil nor ecclesiastical. The observance of the day and the use of the service rest only on a Royal Proclamation; and if a clergyman were to be indicted in the Court of King’s Bench, or in the Ecclesiastical Courts, for using the special service on that day, authorized by Royal Proclamation, in lieu of the ordinary service, enjoined by the Act of Uniformity, and to which he is bound by his subscription to the second article in the thirty-sixth Canon, it may admit of a doubt what the decision of the Courts would be. In respect, then, of the day of the Sovereign’s Accession, and of the service provided for it, it would seem that they who hold the exclusive authority of the Common Prayer Book, can make out a fair case to vindicate themselves from using the particular service. But, as was before observed, the case of the three other days and their services is somewhat different; different, and (as it should seem) better authority being to be adduced in their behalf. III. Let us distinguish between the days and the servicesappointed for them. For the celebration and observance of the days, that is to say, of the 5th of November, of the 30th of January, and of the 29th of May, there are, in the first place, three several Acts of Parliament, which will be found below; 3 Jac. I. c. 1; 12 Car. II. c. 30; and 12 Car. II. c. 14. But none of these Acts speak of any particular service being provided; all that they enjoin is, that people shall go to Church on those days; that the souk of January shall be observed with fasting and that, on the two other days, the Minister shall give public thanks, but they leave the form of his so doing to his own discretion; and the injunctions of the Acts would be fully complied with by his mere insertion of a clause in the general thanksgiving.
There is however another Act, 24 Geo. II. c. 28, confirming the celebration of the days, and giving a sanction, at least indirect, to certain particular services provided for them. This Act is that establishing the alteration of style, and ordering the alteration of the times of observing the festivals accordingly, and for this purpose a new calendar was appended to it, and received, together with it, the force of an Act of Parliament. In this calendar these three days are mentioned as “certain days for which particular services are appointed.” So that the question, as concerns those who have urged the exclusive authority of the Common Prayer, in vindication of their total omission of the particular service on the 5th of November, turns upon this, namely, whether the indirect sanction to the particular services afforded by this Act would avail to warrant them in departing from the Act of Uniformity, by using them. It should seem, that in the Court of King’s Bench it probably would be held permissive, and that therefore the Clergy are at liberty, as far as the Act of Parliament is concerned, to use the particular service, should they think fit. That they are also at liberty, as regards Ecclesiastical law, is still more easily demonstrable; as it was the Ecclesiastical Legislature which provided a special service, and the article in the 36th Canon, by which every clergyman binds himself to use the Book of Common Prayer, and none other, must be regarded as an acknowledgment of the authority of Convocation in respect to the Liturgy, and, therefore, as virtually binding men to observe all alterations put forth by the same authority, where not contrary to the law of the land, but none other. Hence it should seem, that if the obstacle which the letter of the Act of Uniformity presents, may be considered removed by the statute of 24 Geo. II. indirectly sanctioning the special services for the three days, the Clergy would be under obligation, by the Rules of their Church, to make use of the special services.
IV. The “particular services” of 1662 are to be distinguished from the particular services now appended to the Common Prayer. The reader will see below that they are, different, and the authority is likewise different which can be adduced in respect of them. The particular services of 1662 were prepared and passed by Convocation with the authority and ratification of the Crown, and therefore, unless there be any law of the land opposed to them, the rubrics enjoining them are as much and as truly Ecclesiastical law, as any which has ever been so considered. In respect to the service for the 5th of November, it has been supposed by some that the service, as it now stands, was revised in Convocation in 1689. But from the detailed account given by Wilkins, in his Concilia, iv. 619-621, of the proceedings of that Convocation, de die in diem, in which no mention whatever is made of such a transaction, it does not appear that such was the case. It should seem, rather, that William III. so far trode in his predecessor’s footsteps as to dispense with the laws in this instance; and to set up a Royal Proclamation against and above an Act of the Ecclesiastical Legislature. The first question, then, between the advocates of the service of 1063, and the advocates of the present services (who both argue on the supposition that there is no hindrance on account of the Act of
Uniformity) is this:—Has the Crown the power, by itself, to set aside what has been agreed to by Convocation and Crown together? If it has, then the existing services, if not, then the services of 1662, have the prior claim upon our observance. Is then the Crown absolute in the Church? I can only say I know no ground upon which such an assertion can be maintained. The Clergy acknowledge the Crown to be supreme as well in all Ecclesiastical matters and causes as temporal (Canon 36); which seems to mean equally supreme, not more so: and therefore as it is certain that the Crown is not absolute in temporal causes, so it seems necessarily to follow, that neither is it absolute in Ecclesiastical: and accordingly, though we find many and repeated decisions of what are called the Superior Courts affirming the power of Convocation and the Crown to make Ecclesiastical law, I have met with none, and have in vain asked those who differ in opinion with me to produce any, affirming the power of the Crown alone to make Ecclesiastical law. But if the Crown has no power to make Ecclesiastical law, then it follows that the rubrics enjoining the use of the existing services for the 5th of November, 30th of January, and 29th of May, have not the force of law, nor can be enforced in any Court, Temporal or Ecclesiastical. While on the other hand, if Convocation and the Crown have power to make Ecclesiastical law, then it follows that the rubrics enjoining the use of the old services, which, together with the services, were passed by Convocation and ratified by the Crown, have the force of Ecclesiastical law, being unrepealed, and may be enforced in the Ecclesiastical Courts, with aid, if need be, from the Temporal Courts also.
But this is not the only question between the advocates of the old special services and the advocates of the new. The last confidently appealed to the statute of George the Second, of which mention has been made above, and affirmed that by it the new services received the force of an Act of Parliament.
But since it appears that there is no allusion whatever to the services in the body of the Act, and that in the Calendar appended to and confirmed by the Act, the only mention is of “Certain days for which particular services are appointed,” it should seem, as was before observed, that the utmost effect of the Act, in regard to the services, is permissive; that is to say, it probably would avail to screen a Clergyman using them from any penalty arising from the Act of Uniformity, with which, for these days, it may be deemed to dispense; but can hardly be construed compulsorily, so that a Clergyman who failed to use the services could be indicted under it. But, certainly, permissive sanction seems to be given by this Act to certain special services; and the question is, to which set of special services the permission applies; whether to those of 1662, or to those which are appended now to the Prayer Books, as altered by James the Second, and William the Third? As these alterations were in existence before the passing of this Act, we might not unreasonably imagine, if we decided without looking at the Act, that whatever sanction it afforded would be in favour of the altered services. But when we come to examine it, we find reason to alter that opinion. In the first place, it is worthy of observation, that neither the body of the Act, nor the Calendar, take any notice whatever of any day to be observed in celebration of the Sovereign’s Accession, nor of any particular service appointed for it, though a particular service for that purpose was in existence and in use at the time; and enjoined by all the authority that a Royal Proclamation can convey. In the next place, the body of the Act only speaks of those days already enjoined by Act of Parliament; which are the same for which services had been provided by Convocation in 1662. In like manner the Calendar at the end of the Act (the same Calendar, with the exception of the alteration as to style, as provided by Convocation in 1661-2, which now, for the first time, was confirmed by Civil Statute), speaks only of those “Certain days for which particular services had been appointed” by Convocation. If we further observe how the days are described, we shall be struck with the same impression: they are spoken of as days “kept in memory” of those events for which they had been enjoined to be kept by the several Acts relating to them respectively, and for which services had been provided by Convocation. Thus 12 Car. II, c. 14. had enjoined the 29th of May to be kept in memory of the birth and return of the King, Charles II. And the Convocation had provided a service accordingly; but James II., dispensing with the laws of Church and State, by way of diminution, ordered it to be observed in memory of the Restoration of the Royal Family, altered the service, and omitted all mention of the King’s birth. The Act of Geo. II. takes no notice of any thing of this, but speaks of it still as the day kept in memory of the birth and return of King Charles II., to which the Convocation service is applicable, but the Crown service is not. In like manner the Act 3 Jac. I. c. 1. had enjoined the 5th of November to be kept in memory of the Gunpowder Treason, or Papists’ Conspiracy; and the Convocation had provided a service accordingly, celebrating this event only. But William III., like his predecessor, dispensing with the laws of Church and State, by way of addition, ordered it to be observed also in memory of his landing, and altered the service accordingly. The Act of Geo. II. takes no notice of any thing of this: the only event, in memory of which it speaks of the 5th of November as being kept, is the Papists’ Conspiracy, to which the Convocation service is applicable, which it is not to the two-fold purpose of William III.
If this was done through inattention, it will not alter the force of the Act; littera scripta manet: but if (as has been urged by some persons), it was duly and maturely weighed and considered, it is still more worthy of remark; amounting, as in that case it virtually does, to a deliberate refusal of the Parliament to sanction by an ex post facto Act the infringements of the temporal and ecclesiastical laws which James II. and William III. had both alike taken in hand in this matter.
The different footing on which the observance of the three days and their services rests from that on which the observance of the Sovereign’s Accession and its service is grounded, has been noticed above, section 2. It is worthy of record that this distinction was observed in the Royal Proclamations until the end of the reign of George II. Up to that time there were two Proclamations, one enjoining the three services to be appended to the Book of Common Prayer: this Proclamation having been first made by Charles II. on account of the Convocation services of 1662; and another ordering the service for the Sovereign’s Accession to be printed and published, but containing no direction that it should be appended to the Book of Common Prayer. At the accession of George III., for the first time, there was one Proclamation enjoining all four services to be appended to the Prayer Book; and then first the Calendar, provided by Convocation, and confirmed by Act of Parliament, was interpolated, without warrant from either, as it now stands to this day; four days being enumerated instead of the original three.
From the foregoing statements, the accuracy of which the following documents will establish, the conclusion seems unavoidable; namely, that the particular services for the three days provided by Convocation in 1662, have the express force of Ecclesiastical law, and the, at least indirect, sanction of statute: and that the observance of them may therefore be enforced in the proper courts; but that the four services at present appended to the Prayer Book cannot be enforced, no authority being to be adduced in their behalf which would be deemed valid and sufficient in any court in the kingdom. A further question may be raised, namely, whether the printers to the Crown and to the Universities are not liable to be called to account for appending the four services last mentioned to the Common Prayer, instead of the three more duly authorised ones; and for interpolating the calendar established and confirmed by 24 Geo. II.
If this state of things is inconvenient, the remedy is simple, and at hand; namely, by the assembling of Convocation: with whose advice and consent Her Majesty may set forth, in a legitimate manner, proper services for all four days; and may afterwards, if she think fit, recommend to Parliament to confirm by civil sanction the decree of the assemblies of the Church.