Chapter 2

This resolution begins the history of the fourth and last Act of Uniformity, which deserves a detailed examination. A Bill was introduced on June 29, and since the original Book could not be found, a printed copy of the year 1604 was annexed. It was read a third time on July 9, and sent up to the Lords. [28] Nothing more was heard of it for several months. The object of the Commons was simply to enforce with greater efficacy the existing law. But this would have rendered futile the labours of Convocation in revising the Prayer-book. The use of the revised Book would be forbidden under penalty. The Lords therefore held their hand. The Bill sent up from the Commons was at length read the first time on January 14, 1662. Three days later it was read a second time and committed. [29] The committee met several times and adjourned, waiting until they might see the revised Book prepared by Convocation. [30] At length, on February 24, this Book, certified under the Great Seal, was sent by the King to the House of Lords. On March 13 the committee reported the Bill with several amendments and additions. Before these were considered, the alterations in the Book were read over to the House, but not in any way discussed, and a vote of thanks to the Convocation for the pains taken in the matter was adopted. [31] On April 9 the Bill passed the third reading, with the revised Book annexed in place of the former printed copy, and so was returned to the Commons. [32]

Meanwhile the Convocation had, on March 5, commissioned three bishops to watch any alterations which might be imported into the Book by either House of Parliament. [33] On April 15 the Commons appointed a committee to compare the revised Book with the copy of 1604, and on the following day, upon the report of the committee, resolved by a narrow majority not to allow any debate on the alterations made. They reserved, however, the right to do so had they wished. [34] The clauses of the Bill were carefully gone through; a proviso inserted by the Lords, that no man should be deprived for not using the surplice or the Cross in Baptism, was thrown out; [35] several amendments were carried, and a conference of the two Houses was held for their consideration. [36]

On this occasion occurred two most significant incidents. The first arose out of the wish of the Commons to insert a proviso for

reverend and uniform gestures and demeanours to be enjoined at the time of divine service.

It was agreed in Conference that this matter was more proper for Convocation than for Parliament, and, therefore, by a vote of the House of Lords, Convocation was requested

to prepare some canon or rule for that purpose, to be humbly presented unto his majesty for his assent. [37]

The other incident arose from the discovery of the Commons' committee that in one of the rubrics of the revised Book the word _persons_ appeared to be written by mistake for _children_. On this

the Lord Bishop of Durham acquainted the House that himself, and the Lord Bishop of St. Asaph, and the Lord Bishop of Carlisle, had authority from the Convocation to mend the said word, averring it was only a mistake of the scribe, and accordingly they came to the clerk's table, and amended the same. [38]

In fact, on April 21, the bishops in Convocation had heard from the Chancellor of the mistake, and had taken measures accordingly, adding Cosin of Durham to their committee of March 5 appointed for such an emergency. [39]

The Act received the royal assent on May 19. I have dealt so fully with its course through Parliament because of the character of the incidents. In itself it does not contain much that is new as regards my subject. The preamble recites the statute of Elizabeth, and relates the fact of its non-observance, and the neglect of the Book of Common Prayer during the late troublous times; takes note of the King's commission for the review of the Book and its subsequent revision by Convocation; and records the message in which the King recommended to Parliament that the Book so revised should "be the Book" appointed to be used everywhere in the kingdom. This accordingly is enacted, and in the twenty-fourth section all the existing laws on the subject, including of course the statute of Elizabeth, are confirmed as referring to the revised Book and none other. The revised Book, as in 1552, is thus put in exactly the same legal position as the original, and the authentic copy, as on that occasion, is, for the purpose of reference, annexed and joined to the Act. The other lengthy clauses of the Act contain elaborate provisions for preventing nonconformity, but with one exception they do not throw any further light on the relation of the legislature to the Prayer-book. The exception is the fifteenth section, which provides

that the penalties in this Act shall not extend to the Foreiners or Aliens of the Forein Reformed Churches allowed, or to be allowed by the King's Majesty, his heirs and successors, in England.

An exception which had hitherto been made, as we have seen, by a stretch of prerogative, was now established by law. The exception illustrates the purpose of the Act. No sect or congregation of native-born dissenters was to be allowed any relief from the penalties imposed by law. The guarded promise of toleration made by the King before and after his restoration was ignored. The use of the forms of worship provided by the authorities of the Church was to be forced on the whole nation.

The conclusion that I would draw from this analysis of proceedings will be fairly obvious. The Prayer-book did not originate with Parliament, nor was it in any true sense authorized by the Crown in Parliament. The action of the legislature on the first and the last occasion is perfectly intelligible. A Book of Common Prayer was in existence, drawn up and approved by ecclesiastical authority, on the first occasion it is not quite clear after what fashion, on the last occasion by the unquestioned exercise of synodical powers. This Book, so approved, was then, by authority of Parliament, imposed upon the whole nation. This being clearly the case on the two occasions when the procedure is free from ambiguity, I think we may fairly argue for the same construction of those proceedings, on the other two occasions, which are more open to question. The policy of the Acts of Uniformity is to be taken as a whole. The writer of the paper in the Record Office to which I have referred, purporting to give an account of what was done in 1559, explains that parliamentary action is limited to enforcing the use of the Book by penalties. Further authority than this, he says emphatically, is not in the Parliament. Writing early in the seventeenth century he sets out exactly the procedure followed in 1662. He describes, in fact, the policy of Uniformity, which was, therefore, not peculiar to the last occasion. [40]

I shall describe it negatively. The Parliament was not legislating for the regulation of divine worship. In 1662, as we have seen, both Houses, while stiffly maintaining their right to interfere, expressly declined that task, and declared it the proper work of Convocation. This was not from want of interest. The Commons were eager to have some further rules for "reverend gestures." But these things were to be regulated rather by canon than by statute. The Convocation was not even asked to prepare something for submission to Parliament; "some canon or rule," enacted by Convocation with royal assent, would be the sufficient and proper authority. [41] There could be no clearer proof, that, according to the mind of Parliament, Convocation has full powers, and is the proper authority, for dealing with such matters.

But even if this be so, it is urged, on the other hand, that what is contained in the Prayer-book is actually prescribed and stands by authority of Parliament. The Book annexed is treated as a schedule of the Act of Uniformity. It is, says Dr. Stephens,

part of the statute law of the land; and all the legal and equitable principles of construction which apply to statutes in general, equally apply to the Book of Common Prayer. [42]

This opinion, supported as it is by a general consent of high authorities, I venture to contest. What is meant by the Book being "annexed" to the statute? Physically, it was attached by strings to the parchment on which the Act was engrossed. Was it legally a part of the statute? Was it a schedule? The procedure in Parliament, I submit, makes against this opinion. Can the schedule of a Bill in Parliament be amended otherwise than by the vote of the two Houses? But when a mistake was found in the Book annexed, it was corrected, as we have seen, not by the clerk under authority of Parliament, but by three bishops under authority of Convocation. Could any part of a Bill in Parliament have been so amended? The matter was trivial; there was the less reason for abnormal measures; and Parliament has always been jealous about small matters of procedure, and never more so than at that period. I submit that the Book annexed cannot be regarded as an integral part of the statute.

But if the Prayer-book is thus external to the statutes which require its use, can its meaning be affected by any of the provisions of those statutes? If the wisdom of Parliament had enacted on some occasion that Aldrich's Logic and the Elements of Euclid should be read in the Universities, would it follow that the rules of the syllogism and the axioms of geometry are to be interpreted by "the principles of construction which apply to statutes"? Or since geography is by statutory authority taught in our elementary schools, are we to infer that the world revolves on its axis subject to the British Constitution?

The Prayer-book is a liturgical document, and surely it should be interpreted by the principles which apply not to statutes, but to liturgies in general.

If the Acts of Uniformity are not laws for regulating divine worship, what are they? I should call them, briefly, laws of persecution. They were intended to enforce on all men by criminal process the observance of the Church's forms. That is persecution, I suppose, if anything can be so called. I shall not indulge in any moral reflexions on persecution. They may be taken for granted. I shall only note the dry fact that within thirty years of the last enactment the whole purpose of the statutes was destroyed by the Act of Toleration. A good part of them has been formally repealed, as may be seen by a glance at their text as printed in the Revised Statutes. What remains? A singular ruin. The effect of the law has been turned upside down. It was intended only to restrain dissenters; dissenters are now the only people to whom it does not apply. It was intended only to prevent unauthorized variations from the Prayer-book; it is effective now to prevent authorized variations alone. The one effect of the Acts of Uniformity at the present time is to render it practically impossible for the authorities of the Church to make the smallest amendment of the text of the Book of Common Prayer. In doing this they would run counter to the law which orders the use of this Book and none other. Unauthorized variations, on the other hand, are unchecked by the Acts of Uniformity. So far as they are restrained at all, they are restrained by the general disciplinary powers of the Church. Theoretically those who indulge in them are liable to the statutory penalties imposed by the Act of Elizabeth. Practically these cannot be enforced; their savagery makes it impossible. They stand as they were enacted in 1549, and again ten years later; they are now intolerable. I am told that no attempt has been made to enforce them since the year 1796, nor is there any chance of their being revived. The Acts of Uniformity, so far as they relate to the Prayer-book, have therefore no present effect but to hinder the activity of the Church. They began with fierce persecution on behalf of the Church. They end by being merely a nuisance.

APPENDIX

State Papers, Domestic, Elizabeth, Vol. VII., No. 46.

Ther returned into England upon Queene Maryes death that had bin Bishops in K. Ed. 6 tyme

1. Coverdale.

2. Scorye.

3. Chenye.

4. Barlowe.

Ther remaned Bishops for some tyme that were Bishops in Queene Maryes tyme,

1. Oglethorpe, B. of Carleile who crowned Q. Eliz.

2. Kichin, B. of Landafe,

Ther were Bishops in the Parlament holden primo Eliz. and in the Convocation holden at the same tyme

Edmunde B. of London.

John B. of Winton.

Richard B. of Wigorne.

Ralph B. of Covent and Lichfeilde.

Thomas B. of Lincolne.

James B. of Exon.

The Booke of Comon Prayer, published primo Eliz. was first resolved upon and established in the Church in the tyme of K. Ed. 6. It was re-examined with some small alterations by the Convocation consistinge of the said Bishops and the rest of the clergy in primo Eliz. which beinge done by the Convocation and published under the great scale of Englande ther was an Acte of Parlament for the same booke which is ordinarily printed in the beginninge of the booke; not that the booke was ever subjected to the censure of the Parlament but being aggreed upon and published as afforesaid, a law was made by the Parlament for the inflictinge of penalty upon all such as should refuse to use and observe the same; further autoryty then so is not in the Parlament, neyther hath bin in former tymes yealded to the Parlament in thinges of that nature but the judgment and determination therof hath ever bin in the Church, therto autorised by the Kinge which is that which is yealded to H. 8. in the statute of 25 his raygne. [Endorsed] Bishops.

******

Another copy follows, No. 47, written with modernised spelling. It is endorsed as follows:

(1) _Bishops_.

(2) _Power of the Convocn in framing the Book of Common Prayer &c. and of the Act of Parlt Sr. Th. Wilson's hand_.

The second endorsement of No. 47 (wrongly given in the Calendar as "Progress of the Convocation, etc.") is in the handwriting of Sir Joseph Williamson, Keeper of the State Paper Office, and from 1674 to 1679 Secretary of State. Sir Thomas Wilson was a confidential servant of Robert, Earl of Salisbury, who often employed him in matters of secret police. He was made Keeper of the S.P. Office in 1605 and died in 1629. A comparison with his letters and notes preserved in the Record Office shows that the copy in his handwriting is the earlier one, No. 46. It is written, however, more formally and with more archaic spelling than his original papers. It would therefore seem to be a copy of an older original. I venture to suggest that it may have been written for Salisbury's use in 1604, when revision of the Prayer-book was being discussed. There is nothing to show the provenance of the original, but the errors in point of fact make against an early date. Cheney is said to have been a bishop in the time of Edward VI.; he was in fact raised to the episcopate in the year 1562. Oglethorpe is said, like Kitchen, to have retained his bishopric under Elizabeth. He was in fact deposed on June 21, 1559, and died in the following December. The statement that the Prayer-book was submitted to the Convocation, "consisting of the said Bishops," is all but demonstrably false.

[1] Wilkins, _Concilia_, iv. 6; Strype, _Cranmer_, vol. i. p. 156; Cardwell, _Synod_., p. 421.

[2] Proclamation prefixed to _The Order of the Communion_, printed by Grafton, March 8, 1547/8.

[3] Cardwell, _Doc. Ann_., vol. i. p. 72. As the bishops were required "to cause these books to be delivered to every parson, vicar, and curate," within their several dioceses, the more scrupulous among these might fairly argue that they accepted the order on the authority of the diocesan. But it may be doubted whether such a refinement occurred to many at that time.

[4] Overall, _Accounts of the Churchwardens_, etc., p. 67.

[5] _Ibid_., p. 68. There exist among the MSS. of the British Museum many English renderings of parts of the Mass and the Divine Service, anterior to the Book of Common Prayer, with musical notation. These will shortly be discussed by Mr. W. H. Frere in the _Journal of Theological Studies_.

[6] C.C.C.C. MSS. 106, fo. 495, cited in Gasquet and Bishop, _Edward VI. and the Book of Common Prayer_, p. 147, from Cooper's Annals of Cambridge, ii. p. 18.

[7] Cardwell, _Synod_., p. 420; Strype, _Cranmer_, vol. i. p. 155. The petition of the clergy expressly says that this had been done _ex mandato convocationis_. Cranmer's notes on the proceedings, given in Cardwell, make them say that "by the commandment of King Henry VIII. certain prelates and other learned men were appointed to alter the service in the Church." It is probably an instance of two ways of regarding the same thing, and is not uninstructive.

[8] I venture on this suggestion as to the character of the much discussed "Windsor Commission," but it is beside my subject to debate the point. It seems to reconcile the many assertions that the Prayer-book was prepared by authority of Convocation with other assertions that all was done by a committee appointed by the Crown. See the preceding note. The statements are collected in Gasquet and Bishop, pp. 148-156.

[9] See Gasquet and Bishop, p. 178, and the notes of the debate on the Sacrament printed by them from MS. Reg. 17 B. xxxix., in their Appendix v. pp. 403, 404.

[10] The _Interim_ of 1548 was an attempt of Charles V. and the Diet of Augsburg to grapple with this state of things, and was so far analogous to the English Act of Uniformity, and a precedent for it.

[11] See the letters of Micronius and Utenhovius to Bullinger, _Orig. Lett_, pp. 568, 570, 587. The patent for the incorporation and protection of the congregation is given in French by Collier, _Records_, vol. ii. no. lxv. The date is July 24, 1550, and a _non obstante_ clause bars any interference "par aucun statute, acte, ordonance, provision, ou restriction, faits publietz, ordonnez, ou pourveus au contraire."

[12] I Mariae, sess. 2, cap. 2. Gibson, p. 304.

[13] And even this with some freedom. See Machyn's Diary, April 6 and 7, 1559. Jewel wrote to Peter Martyr on April 14: "Itaque factum est ut multis iam in locis missae etiam invitis edictis sua sponte ceciderint." _Zurich Letters_, ep. vi.

[14] Venetian State Papers, vol. vii. p. 57. Easter Day fell on March 26 that year. The particulars reported by _il Schifanoya_ are interesting. On the morrow of St. George's Day, he reports again, mass for the dead was said for the chapter of the Garter in the usual manner, but the Epistle and Gospel were said in English. _Ibid_., p. 74.

[15] _Zurich Letters_., ep. xii.

[16] See Caldwell, _Conferences_, pp. 19-21, and 47-54, 2nd ed.

[17] S.P. Dom. Eliz., vol. vii. no. 46. See below, p. 26, and Appendix.

[18] So all authors; I can find no evidence of the date.

[19] Nor was it so annexed in fact. Cardwell is here in error (_Conferences_, p. 30), and his mistake has been generally followed. If there were any doubt on the subject, it would be dispelled by the fact that in 1661 the House of Commons sought the Book annexed to the Act, not of 1559, but of 1552. See below, p. 21.

[20] See the Bishop of Chester's speech against the Bill, in Cardwell, _Conferences_, p. 116: "Marke, my lordes, this short discourse, I beseech your lordshippes, and yee shall perceave, that all catholike princes, heryticke princes, yea, and infidells, have from tyme to tyme refused to take that upon them, that your lordshippes go about and chalenge to do." Collier, vol. ii. p. 430, conjectures that the rubric about kneeling at Communion was omitted by the committee of revisers, and restored while the Bill was passing through Parliament; but there is no evidence on either point. The letter of Guest, to which he refers, probably belongs to an early stage of the revision, and contemplates other and more striking variations from the Book as finally revised. See especially the paragraphs in Cardwell, _Conferences_, p. 51.

[21] See Clay, _Liturgies, etc., of Queen Elizabeth_, pp. xii. seqq.

[22] Clarendon, _History_, vol. iii. p. 747, 8vo, ed. 1707.

[23] Ibid., p. 771.

[24] Cardwell, _Conferences_, p. 295. The Address of the Ministers, the King's Declaration of October 25, and the Letters Patent of March 25, are given by Cardwell in full, pp. 277-302.

[25] Cardwell, _Synod_., pp. 640-642.

[26] _Ibid_., pp. 651-660.

[27] _Commons' Journals_, viii. 247. This and the following citations from the Journals of the two Houses will be found collected in the Report of the Ecclesiastical Courts Commission, Appendix v.

[28] _Commons' Journals_, viii. p. 296. The "original Book" should mean the copy actually tied to the Statute of 1552. It was probably intended to mark in it the alterations mentioned in the Act of 1559. The actual Book was missing, and apparently no copy of the Prayer-book of that year could readily be procured. A copy of the year 1604 was probably selected as being anterior to the changes made by James I. after the Hampton Court Conference, and so presumably printed in accordance with the Act of 1559. It did not, however, as I have said above, strictly follow the Act. Two prayers printed "before the reading Psalms" were cancelled before the book was annexed to the Bill, but the other variations would probably be unknown to the examiners.

[29] _Lords' Journals_, xi. 364, 366.

[30] _Ibid_., xi. 383.

[31] _Lords' Journals_, xi. 406-408.

[32] _Ibid_., xi. 425.

[33] Cardwell, _Synod_., p. 666.

[34] _Commons' Journals_, viii. 406-408.

[35] _Ibid_., viii. 413.

[36] _Lords' Journals_, xi. 441-442.

[37] _Lords' Journals_, xi. 451.

[38] _Ibid_.

[39] Cardwell, _Synod_., p. 670.

[40] See Appendix.

[41] This fact should suffice to dispose of a theory propounded by some who attempt to save the face of the Church by representing the Act of Uniformity as the _ratification_ in Parliament of what had been already done by the Church. There is no historical basis for such a theory.

[42] _The Book of Common Prayer, etc., with notes, etc_., by A. J. Stephens, p. clxxiv.

Transcriber's notes: The footnotes were moved to endnotes and renumbered. Some words, such as "Mr" and "Parlt" are words that have a superscript ending with no punctuation.