Ecclesiastical Appeals in the JCPC

Dr. Charlotte Smith, School of Law, University of Reading

The Nature of Ecclesiastical Suits

Before the abolition of ecclesiastical jurisdiction over matrimonial causes, wills and probate, tithes, defamation and brawling in the mid-nineteenth century the ecclesiastical courts heard a wide range of suits brought by and against lay people.  Here, though, we are concerned with suits brought against the clergy of other officers of the Church of England.  The number of these so-called clergy discipline suits increased in the second half of the nineteenth century and some attracted high levels of controversy and public attention.  Increased litigiousness was the product, in part at least, of heightened sensitivities and ideals of clerical conduct, resulting from the Evangelical and High Church revivals of the late eighteenth and early nineteenth centuries, deeper divisions between the different “parties” of the Church, and varied and contentious developments in sacramental theology, liturgical practices and biblical criticism.

There were three broad types of clergy discipline suits.  The first and least contentious of these was concerned with clerical immorality.  Famous examples of clerics proceeded against for immorality include Dr. Drax Free – who kept pigs in the church yard, abused his parishioners, and had his wicked way with a string of housekeepers – and Wilfred Speer – who frequently performed divine service while drunk and in an indecent and irreverent manner.  The second species of suit concerned false doctrine or heresy.  Targets for such prosecutions included advanced Evangelical doctrine on baptism (the Gorham controversy), High Church teaching on the Eucharist (including the suit against Archdeacon Denison), and advanced biblical criticism and liberal theology (most famously in the Essays and Reviews controversy).  The third type of suit, which might overlap with the second, was the so-called ritual suits.  These referred to alleged abuses in the ornaments of the church or the minister, or the ceremonial or ritual used in divine service.  Usually such suits were brought against advanced High Churchmen (“Ritualists”) for, amongst other things, introducing stone altars and Stations of the Cross into their churches, wearing rich vestments, and bowing or genuflecting before the consecrated elements of the Eucharist.

Whatever the substantive subject-matter of a suit, it might be proceeded with in a number of different ways.  Any suit might, for example, be brought under the procedure of duplex querela, which challenged a bishop’s alleged failure to do justice, e.g. in not admitting a clergyman to an ecclesiastical living to which he had been appointed by a patron because of his alleged propagation of false doctrine.  Sometimes a faculty suit might be brought, for example against a High Church cleric who had introduced ornaments to his church without the proper authority, or against a corrupt vicar who had chopped down the trees in his churchyard or damaged the pews.  In either case such miscreants might equally well be prosecuted under the Church Discipline Act 1840, as too could a heretical priest.  Finally, in the case of ritual suits, litigation might be brought under the alternative procedure provided by the Public Worship Regulation Act 1874.

The choice of procedure could be motivated by several tactical concerns.  The mode of procedure determined who had standing to bring a suit to court, and whether or not their case could proceed as of right.  Under the Church Discipline Act, for example, a suit could be instigated by anyone who complained to the bishop, although the bishop then had a right not to proceed with the suit.  By contrast, only a parishioner or other interested party could bring a faculty suit, but if the litigant proved the required interest then their suit proceeded as of right.  Again, under the Public Worship Regulation Act a suit could only be brought by an archdeacon, churchwarden or three parishioners who were members of the Church of England, and the bishop had a right to veto proceedings subject to a duty to provide written reasons.  Sometimes issues of standing were conclusive because, for example, no qualified parishioner could be found to complain, or because a litigant knew that the bishop would veto their suit if he was given the chance.  On other occasions however, would-be litigants chose their means of proceeding according to the process attaching to it.  Under the Church Discipline Act, for example, there was a preliminary commission of inquiry before any case came to court and two possible levels of appeal. By contrast, under the Public Worship Regulation Act there was one summary hearing and one possible appeal.  In theory, then, the Public Worship Regulation Act provided for a quicker and cheaper resolution to a case.  As we shall see below, the mode of proceeding was also significant for our purposes because it determined the composition of the courts which heard suits, including that of the court of final appeal.

The JCPC as the Court of Final Ecclesiastical Appeal

The JCPC became the court of final ecclesiastical appeal under the Privy Council Appeals Act 1832 and the Judicial Committee Act 1833, which implemented a recommendation orchestrated by Lord Chancellor Brougham and put forward in the Special Report of the first royal commission on the ecclesiastical courts (1830).  Although the transfer of ecclesiastical appeals to the JCPC was treated as being advantageous and unproblematic at that time, it soon became an on-going and apparently unresolvable source of difficulty and controversy within the Church.

Unlike the High Court of Delegates, which it replaced and which consisted of secular and ecclesiastical lawyers and bishops, the JCPC was staffed only by lay and (mostly) legally qualified peers. The only concession to the possible need for the Church to be represented in ecclesiastical appeals, and for the court to have access to theological learning, was found in the convention that the Lord President would call one or more Privy Councillor bishops to attend such appeals.  This was neither a legal guarantee that the bishops would be present at such hearings, nor a means by which they could sit as judges. Further, the judges who did sit were not normally learned in ecclesiastical law and there was no requirement that they should be members of the Church of England.

The Church Discipline Act 1840, s16 sought to address these difficulties by stipulating that at least one bishop should sit as a judge on the JCPC in appeals brought under that Act.  This requirement only, though, applied to proceedings brought under the Act, and did not apply to suits brought by other means.  As such the composition of the JCPC in ecclesiastical appeals varied according to the procedure under which a suit was initially commenced. In actions under the 1840 Act it had to include a bishop amongst its judges; but in actions brought under duplex querela it might legally include no bishops amongst its number, or one or more bishops sitting by convention as assessors only. Following numerous failed Bills, reports by the Church’s Convocation, much pamphleteering, and brief flirtations with the ideas of a court staffed entirely by ecclesiastics, or solely by lawyers, the composition of the JCPC in ecclesiastical appeals was finally standardised under the Appellate Jurisdiction Act 1876, s3.  That Act provided that in all ecclesiastical appeals the JCPC was to be staffed by lay and (usually) legally trained judges, assisted at their discretion by a panel of three bishops acting as assessors and advising them on questions of theology and doctrine.

Understanding Debates about the Work and Composition of the JCPC as the Court of Final Ecclesiastical Appeal

The 1876 Act, though it introduced a longstanding provision for the composition of the JCPC in ecclesiastical matters, did not end disputes about how it should be staffed, what its work was, and whether it possessed the requisite authority to bind the clergy to obedience.  Such disputes were tied up in differing conceptions of the relationship between the Church and the State, and of the resulting nature of the Church of England and its laws.

The relationship between Church and State in England meant that the Church and its laws partook of both spiritual and temporal aspects.  On one level the Church claimed temporal authority and access to coercive jurisdiction as a national institution and an Established Church.  On another level it claimed spiritual authority as a doctrinally true and Reformed branch of the Church of Christ.  This duality carried through to its formularies and doctrines which, though spiritual in content, were often enshrined in prerogative acts issued by the crown and statute law passed by Parliament.  The role of the JCPC itself was a clear example of the junction between Church and State since it represented an appeal to the crown as the temporal head of the Church.

Sometimes objections to the JCPC focussed on the so-called Reformation Settlement which was said to set the terms of the relationship between Church and State.  On this basis, some of its detractors rejected the JCPC because it was not the mixed court provided for by the Reformation Settlement in the form of the Court of Delegates, and because ecclesiastical appeals had been transferred to it by Act of Parliament alone and without consulting or obtaining the consent of the Church.  For some the lack of a spiritual mandate for its jurisdiction was fatal to its claims to possess authority over the clergy in spiritual matters.  Even if concerns about its authority could be settled, arguments remained about its proper staffing.  Some conceptualised the JCPC as dealing with doctrine, and thus needing the expertise of theologians.  Others saw it as interpreting and applying laws, and thus as being most properly staffed by lawyers.  Further, in the heat of theological controversy few were happy with what it did.  The presence of bishops as assessors caused some to argue that it was making judgments based on policy rather than law.  Equally, when it applied rigorous legal rules to the evidence and pleadings before it, few were happy with its failure to condemn what many perceived to be unacceptable doctrinal positions or liturgical practices.

Suggested Further Reading

This essay draws on a fuller discussion of this subject contained in C. Smith, “The Quest for an Authoritative Court of Final Appeal in Ecclesiastical Causes: A Study of the Difficulties,c.1830-76,” (2011) 32(2) Journal of Legal History 189-213.  See also:

C. Smith, “Ridsdale v Clifton: Representations of the Judicial Committee of the Privy Council in Ecclesiastical Appeals” (2008) 19(3) King’s Law Journal 551–74

C. Smith, “Martin v Mackonochie/Mackonochie v Penzance: A Crisis of Character and Identity in the Court of Arches?” (2003) 24(3) Journal of Legal History 36-58

Good introductions to this area of legal history include:

Arthur Burns, The Diocesan Revival in the Church of England, c. 1800 – 1870(Oxford, 1999) ch. Seven

Robert E. Rodes, Jn., Law and Modernization in the Church of England: Charles II to the Welfare State (London, 1991) ch. Four

M. D. Stephen, “Gladstone and the Composition of the Final Court in Ecclesiastical Causes, 1850-1873” (1966) 9(2) The Historical Journal 191-200

S. M. Waddams, Law, Politics and the Church of England: the career of Stephen Lushington 1782-1873 (Cambridge, 1992) 238-248

For more detailed treatments of particular ecclesiastical cases see:

Ieuan Ellis, Seven against Christ: a study of “essays and reviews” (Leiden, 1980) 

R. B. Outhwaite, Scandal in the Church of England: Dr. Edward Drax Free, 176 –1843 (London, 1997)

Bernard Palmer, Reverend Rebels: five Victorian clerics and their fight against authority (London, 1993)

If you are interested in carrying out further research in this area then you should consider looking in more detail at the following sets of sources.

Materials relating to various reform initiatives, including:

  • Parliamentary Debates (Hansard)
  • Parliamentary Papers – particularly:
    • The Special and General Reports of the Ecclesiastical Courts Commission (HCSP No. 199 of 1831-2)
    • First Report of the Ritual Commission (C. 3951 of 1867)
    • Second Report of the Ritual Commission (C. 4016 of 1867-8)
    • Third Report of the Ritual Commission (C. 17 of 1870)
    • Fourth Report of the Ritual Commission (C. 218 of 1870)
    • Report of the Royal Commission on Ecclesiastical Courts (C. 3760 of 1883)
    • Report of the Royal Commission on Clergy Discipline (C. 3040 of 1906)
  • Chronicles of Convocation (Lambeth Palace Library)
  • Reports of Church Congress (Lambeth Palace Library)

Whether looking at reform initiatives or individual cases it is necessary to look at a wide array of pamphlet literature.  Lambeth Palace Library has an extensive collection and very many can be accessed on Google Books and similar sites.  In addition, a variety of newspapers dealt with such matters.  Many of these can now be accessed online and the British Newspaper Library in London has an extensive collection.  Newspapers of particular note include:

  • The Church Times (High Church)
  • The Record (Evangelical)

Often both individual cases and proposed reforms were discussed exhaustively in private correspondence.  Such letters are widely dispersed, but may (with a bit of luck) be found by searching the National Register of Archives at Collections of particular note include:

  • Archbishops Papers (Lambeth Palace Library)
  • Fulham Papers (Lambeth Palace Library)
  • Selborne Papers (Lambeth Palace Library)
  • Cairns Papers (National Archives)
  • Halifax Papers (Borthwick Institute, York)

Individual cases may have been reported in the official law reports as well as in the daily newspapers.  In addition, you may find the original case records at:

  • Classmark PCAP at the National Archives (for appeals to the JCPC – though note it is worth checking that they have not been left with the main case records of the JCPC)
  • Records of the Court of Arches (Lambeth Palace Library)
  • Records held in various diocesan record offices