Flavel Cook, Bristol, 1874

  

This case meets my criteria for inclusion in this study in a way that is unique. My tests are (1) that there should have been an accusation of heresy followed (2) by some form of official response. In every other case I have come across the official response is addressed to the accused - in this case the person who instigated the accusation was the person prosecuted. Exonerated in his first trial, he was condemned in the second.  

Part of the context, though beyond the stretch of my focus on heresy, was several court cases in the same year and earlier, on issues of worship and ritual as part of the continuing civil war in the church initially sparked by the Oxford Movement in the 1830s.

    

Background

In the summer of 1874 Rev Flavel Cook, incumbent of Christ Church, Clifton in Bristol, gave a series of sermons on the nature of rationalism. Amongst his congregation and audience was Mr Jenkins, a barrister of independent means. The men and their families lived a few houses apart on the same street and had in the past been friends. Jenkins now thoroughly disagreed with Cook’s argument and opinions, and told him so. He sent his vicar a note:

My dear sir, 

As one of your parishioners who accepts his conscience as the voice of God speaking within him, I beg to protest most emphatically against the irreligious tendency of your sermon last night. 

I quite believe that you would not willingly deceive others, but it is my opinion that no difficulties as to language or books should stifle what is imprinted in everyman's breast by his Maker—that is to say, the knowledge of right and wrong.

—l am, &c.. Henry Jenkins." 

Consequently Cook took from his shelves a book which Mr Jenkins had given him a few years earlier. Unread copies of a book gifted by the author are probably not uncommon. Now, however, Rev Cook was appalled by what he had shelved. Jenkins had printed a version of the Bible from which he had excised all those passages that he found morally reprehensible, many from the Old Testament and eight chapters of the New. He had systematically removed all reference to Satan, evil spirits and punishment after death.

The evangelical Cook was appalled: to edit the Word of God to suit an individual’s whim was wholly unacceptable. He determined to exclude Mr Jenkins from the sacraments. Had he had the power he would no doubt have excluded Jenkins from the church altogether. He consulted his Bishop, Ellicott (wiki), who havered. Thereafter, on two consecutive occasions, as Mr Jenkins knelt at the altar rail to receive the bread and wine, Rev Cook’s curate, under instruction, passed him by.

Bishop’s Commission

Cook’s action was prima facie against ecclesiastical law and Mr Jenkins initiated a case against his vicar. 

There were meetings and correspondence between Bishop and Cook, and correspondence between Bishop and Jenkins [See Timeline]. At times the process fell short of what might have been expected for a quasi-judicial response to conflict within a parish. In October 1874 and in the absence of an informal resolution, the Bishop established a commission of senior clergy in the Diocese to assess the case. The commission had no power to adjudicate the substantive issues but was a preliminary step to establish whether there was a case to answer. It was said to be the first case of its kind since the Reformation.

The accusation was that Mr. Jenkins had, by editing Scripture to reflect his personal views, "depraved the Book of Common Prayer" contrary to canon law. The Exeter Flying Post took a less solemn view, announcing that

Mr. Cook has been served with a notice to produce the Devil in Court, and if he does not the plaintiff will order the Devil to be called by the Apparitor three times outside the Court. That is a practical way of putting the matter to the test.

The Commission met on 8 December 1874. The central accusation was that Mr Jenkins “was a common and notorious depraver of the Book of Common Prayer, of the Word God, and of the Apostles’ and Creeds.” Both men were represented by barristers. There was no dispute over matters of fact. The question was whether Jenkins’ book, and the beliefs it evinced through its omissions, gave sufficient ground in law to justify refusing him communion. In effect the Commission tried the case in order to decide whether the matter should go forward to the Court of Arches, the highest church court in Canterbury Province. 

The relevant law was set out in the regulatory passages of the Book of Common Prayer, and the Canons of 1604. The introduction to the service of Holy Communion states:

And if any of those [who have indicated that they would attend Holy Communion] be an open and notorious evil liver, or have done any wrong to his neighbours by word or deed, so that the Congregation be hereby offended; the Curate, having knowledge there-of, shall call him, and advertise him, that in any wise he preſume not to come to the Lord’s Table, until he hath openly declared himself to have truly repented and amended his former naughty life, that the Congregation may thereby be satisfied, which before were offended; and that he hath recompenſed the parties, to whom he hath done wrong; or at least declare himself to be in full purpose so to do, as soon as he conveniently may. 

Canon 26, entitled Notorious Offenders not to be admitted to the Communion opens 

NO Minister shall in any wise admit to the receiving of the Holy Communion, any of his Cure or Flock which be openly known to live in Sin notorious without Repentance; nor any who have maliciously and openly contended with their Neighbours, until they shall be reconciled:

The Commission turned to the defence that Rev Cook offered for his actions. Cook argued that Jenkins had committed the spiritual offence of depraving the inspired word of God, the Book of Common Prayer - in particular the order for the administration of the Holy Communion - and also the Apostles’ and Nicene creeds. 

Dr Tristram, for Mr Jenkins, argued that what was at stake was the relationship between Anglican clergy and their congregations. Communicants should not be subject to the arbitrary whim of clergy to admit or refuse access to the sacraments. The only relevant rules, he said, were those in the rubrics. Canon law applied to clergy only and did not bind the laity. 

The Commission deliberated and concluded that there was a prima facie argument  for further proceedings and remitted the case to the Court of Arches.

The Court of Arches

Eight months later, 22 June, 1875, a crowded Court of Arches heard the case. The judge was Sir Robert Phillimore, Dean of Arches. Dr Tristram QC, was present again for Mr Jenkins, alongside Dr Deane QC and Mr Charles; Rev Cook had Dr Stephens QC and Mr Jeune in his corner. Bishop Ellicott, present as a witness was, oddly in my opinion, given a seat on the bench.

The course of the dispute was recapitulated. At hazard was not merely the standing of Rev Cook but the rights of both laity and clergy of the National Church. If, said Dr Deane, the court decided in favour of Rev Cook “laymen would be at the mercy of the clergy” and their liberties “considerably jeopardised and restrained” in matters of practice as well as doctrine if the canons were enforced against them. The judge accepted that it was for Rev Cook to justify his actions. 

For Rev Cook, Dr Stephens disclaimed any desire to encroach on the rights of the laity or “to tyrannise over the defendant”. Cook, he said, was seeking to carry out the obligations imposed on him by the Prayer Book and the Canons by “provisionally withholding the communion”. The dispute, he said, had arisen after Rev Cook had preached on the “certain punishment of impenitent sinners”, to which Mr Jenkins had taken exception. Discussion between the two men had not yet concluded, he said, and the advice of the bishop had not been given to the vicar, and therefore the Dean of Arches had no jurisdiction. Court adjourned for the day.

When the court reconvened on 24th June, Jeune reiterated that the bishop was fully cognisant of the facts and circumstances of the case, and had declined to make an order on the matter: he had left matters to the discretion of the Rev Cook. 

 

Jeune cited against Jenkins a letter in which he (Jenkins) explained that those passages he had excised, “in their generally received sense are quite inconsistent with religion and decency in my opinion.” These included passages referring to the Communion. For example, the sentence ‘For he that eateth and drinketh unworthily eateth and drinketh damnation unto himself, not discerning the Lord’s body,’ was omitted in Mr Jenkins’ Bible, and yet it was, in Jeune’s opinion, “an extremely important part of the Communion Service.”  

Mr Jeune quoted the Bishop of Exeter’s words from Sunday at Home, Nov 1874: “... that the most subtle of all the temptations is the temptation to disbelieve in and to deny his [the devil’s] existence.” It was evident said Mr Jeune, from the choice of passages he had omitted, that “... Mr Jenkins not only denied eternal punishment; he … denied punishment altogether.” whether in the here (as in the Old Testament) or in the hereafter (as in the New). 

Thus, Mr Jeune concluded, Jenkins was a depraver of the Book of Common Prayer and a slanderer of God’s Word. Consequently, and despite what Jenkins averred, he could not be a believer in the divine inspiration of the Scriptures. In such circumstances, a clergyman was bound by the Book of Common Prayer to refuse to administer the sacrament to an offender, albeit provisionally and temporarily. 

The Bishop of Bristol and Gloucester was called. He was not an impressive witness. He denied he gave any advice. Mr Cook had informed him of the actions he had taken, he said, and in conversation covered by confidentiality, he had offered assistance. Yet the Bishop had sent Cook a pencil draft of a letter which he might use to inform Jenkins of his decision and its rationale. The Bishop claimed that, anyway, conversation and correspondence with his clergy was covered by the complete confidentiality which bound all communication between Bishop and clergy. The Judge stopped further questioning of the Bishop.

Mrs Jenkins was called. She told the court that on 20 July 1874 she visited Cook to ask him not to carry out his threat, but he reiterated his intent, adding “Let him keep at arms length from me; he is an infidel.” She argued his character and moral qualities, but “He said that only made the case more difficult to manage.” 

Dr Deane’s closing arguments were, first, that Jenkins’ views simply did not warrant him being refused the sacrament: “To forbid a man the holy elements because he did not read in private such passages as these and say he was an evil liver, was a monstrous proposition.” More substantively, he found in the Bible, Prayer Book, or Articles of Religion that no “single passage so clearly and definitely laid down as an article of faith [that it was] necessary to salvation that they should believe in the personality of the devil.” And the decision of the Privy Council in ‘Wilson and Fendall’ established that “everlasting punishment was not such a fundamental doctrine of the Church of England that a man could be punished for doubting it.” In law, therefore, the basis on which Cook refused Jenkins Communion was no more than a difference of opinion between the two men. 

Judgment

Judgment was delivered by Sir Robert Phillimore on Friday 16 July 1874. He repeated his annoyance that the matter had not been dealt with in the Bishop’s own court and recapped the events and arguments of the case. He detailed the correspondence between Cook, Jenkins and the Bishop  and listed the passages Jenkins had excised from Scripture. 

Procedurally, he said, both Canons and rubrics gave the clergyman the responsibility to make the relevant decision and the duty to enforce it, subject to the ‘control  and supervision’ of the bishop. 

Phillimore dismissed Cook’s defence except for two points. First, in the words of Canon 26, a minister should not admit to Communion “any … which be openly known to live in sin notorious, without  repentance; nor any who have maliciously and openly contended with their neighbours, until they shall be reconciled; …” Second, Canon 27 declared that the minister shall not admit to Communion “... any that are common and notorious depravers of the Book of Common Prayer and administration of the of the Sacraments, and of the orders, rites, and ceremonies therin prescribed, or anything that is contained in any of the Articles … [of 1562] ...”

He acknowledged that Jenkins’ publication of his edited Bible was not an offence in itself. But subsequent correspondence had revealed the reasons why the omissions had been made and these reasons made Jenkins’ actions “tantamount to a denial of the doctrine and the truth of the facts contained in the omitted passages.” 

It was the duty of the bishop to advise the clergyman and (subject to some conditions) to take proceedings against the parishioner in the episcopal court.  However, “unfortunately”, in Phillimore’s judgement, “The Bishop ... in his anxiety to make peace, wavered somewhat, perhaps, in the expression of his opinion - accordingly as he addressed the defendant or the promoter; but, … if he did not, as I think he did, actually authorise the action of the defendant, he at least did not forbid it.”

Phillimore’s judgment did not waver. “I am of the opinion that the avowed and persistent denial of the existence and personality of the devil did, according to the law of the Church, as expressed in her canons and rubrics, constitute the promoter an “evil liver,” and a “depraver of the Book of Common Prayer and administration of the Sacraments,” in such a sense as to warrant the defendant in refusing to administer the Holy Communion to him, until he disavowed or withdrew his avowal of this heretical opinion; and that the same consideration applies to the absolute denial by the promoter of the doctrine of the eternity of punishment, and of course still more to the denial of all punishment for sin in a future state, which is the legitimate consequence of his deliberate exclusion of the passages of Scripture referring to such punishment.” He dismissed the suit with costs.

Post-trial comment

The case evidenced, first, that lay people had a right to institute proceedings against members of the clergy. Even if this right was seldom acted upon its mere existence changed the relationship between clergy and people: each lay member would be a potential inquisitor, a judge over the beliefs of their priest.

Second, belief in the Devil had been created as a new (or, at least, previously unspecified) article of faith within the Church of England, despite the facts that

There is not a word about the Devil in the Thirty-Nine Articles; there is not a word about the Devil in either of the Three Creeds, not even in the so-called Athanasian Creed, which gives us such minute particulars about the nature, essence, and substance of the Trinity. 

This part of Phillimore’s judgement had the potential to open a Pandora’s box of further litigation. 

Third, "The notion,” said Phillimore, "that a criminous layman, as well as a criminous clerk, was subject to ecclesiastical discipline had fallen into such comparative desuetude, that the statement of the law now made would create surprise, but it was, nevertheless, the law of the land." 

These conclusions could, if unaddressed, have added significantly to the instability and tension ever-present in the Church of England. Nor was Jenkins prepared to accept Phillimore’s judgement. He appealed to the supreme court of the day, the Judicial Committee of the Privy Council. 

Judicial Committee of the Privy Council

The matter was definitively concluded on appeal when the superior court reversed the decision of the Court of Arches and found in favour of Jenkins. 

When the court sat, on 28 January 1876, the focus was not on the propriety of Jenkins’ personal theology as revealed by his edited  Bible, but on the right of a lay person to receive communion. 

Dr. Deane, Q.C. for Jenkins, stated that if his client was “unworthy to receive the rite he claimed at the hands of his parish minister, he was unworthy to receive it at the hands of any. He became at once de facto—excommunicated.” Second, “If it were the law that any clergyman may refuse the administration of the Holy Sacrament to a layman under these circumstances, and then justify himself by private appeal to his Ordinary [Bishop], the layman would have no remedy.” And, third, Jenkins’ book had been wrongly judged as creating “a kind of constructive heresy” by its systematic omissions.   

The Lord Chancellor, courteously and firmly in charge of proceedings, narrowed the argument and focused the issue:  “A parishioner” he said “has a prima facie (iio) right to present himself to have the Holy Communion.” A clergyman could only refuse him on sufficient grounds or if the Bishop directed him to refuse Communion. In this case no order was made by the Bishop and so the pertinent question was “is there anything that takes away the right of the layman to proceed against the clergyman for improperly repelling him?” 

Mr. Fitzjames Stephen, for Rev Cook, focused on the one ground on which a clergyman might lawfully exclude a lay person: in the words of the Prayer Book’s introductory rubrics to the service, that the person concerned was “an open and notorious evil liver”.  The Lord Chancellor stated, creating a thread that would run to the end of the case, that “The words ‘notorious evil liver’ seem to refer to moral conduct.” adding, later, that heresy was not encompassed by the canon. There was discussion of some residual places where heresy lingered on the statute books, none of which were deemed relevant.

By a circuitous route, debate repeatedly recurred to the question of what might legally constitute an “evil liver”. In the Court of Arches Phillimore had concluded that Jenkins’ book was sufficient evidence of erroneous belief and, therefore, Jenkins was an evil liver by virtue of offending against the (rest of) the Canon. The Lord Chancellor started from the opposite end of the question: in ordinary use and in the rest of the Canon “evil liver” was a moral judgment. As there was no suggestion that Mr Jenkins lived anything but a moral life, there was no ground for refusing communion to him. 

This view prevailed: Jenkins was exonerated, Rev Cook was held to be in error, and the order was made that Jenkins be admitted to Communion. 

Readmitted to Communion

Rev Cook used the media platform the case had granted him to make his argument to a wider audience. The State, he said, was not competent to make doctrine. But, in this case, reinterpreting an old law had enabled it “to all intents and purposes establish a new doctrine.” The question he posed himself was what he should do as a  consequence. For a short time the papers speculated as to his answer. 

Others - from anxiety or optimism - held that the judgement brought the disestablishment of the Church of England closer than ever: “the liberty which this judgment accords to the laity to become their own conscience holders restrains us from expressing the slightest sympathy with the clergy in the hour of their trouble and tribulation.” such that “There can, in short, be no doubt that the days of the State-supported Church of England are numbered.” With hindsight, this judgment was a little premature.

Immediate attention focused on Rev Cook’s position. One report announced that “friends” would build a free church for him when the monition was duly served on him, while others declared that he “has not the slightest intention of leaving the Church.” 

The financial penalty of losing the case was substantial: under the sub-heading of “Spiritual Independence” costs of £3,000 for Rev Cook were mentioned, as well as his resignation, although the Liverpool Daily Post “authoritatively” stated that reports of resignation were premature. 

But, perhaps inevitably, it was Rev Cook who paid the price for being on the wrong side of the law. He resigned his living before the end of the month. The Council of the English Church Union donated £100 to Cook’s expenses, no doubt welcome but a long way from the costs of the case.

Implications

The judgement caused a predictable flurry of comment, approval and outrage, most of it transitory. 

The satirist and secular campaigner G.W. Foote took advantage. In ‘The Devil in the Church of England’. He summarised events leading to the prosecution and the conclusion of the first trial: 

“So far, so well; the Church of England was assured of the Devil and the eternal punishment it had always held dear.” 

However, after the final judgment, such assurance had evaporated: 

“As matters stand, the poor Church of England does not know whether, legally, it has a devil or not. Its Devil, its dear and precious old Devil, is in a state of suspended animation, neither dead nor alive; a most inefficient and burdensome Devil. He must either be restored to full health  and vigor (sic), or buried away decently for ever; decently and solemnly the Archbishop of Canterbury, in the presence of all their lordships of the Judicial Committee of the Privy Council, reading the appropriate church service over his grave.”

 

Conclusion

This was, on one level, a domestic heresy, an unnecessary and no doubt painful spat between former friends. 

Mr Jenkins erased from his bible any intimation of divine malevolence and thereby, physically and spiritually, could not see what he did not wish to see. Mr Cook, a sound evangelical, focused on Jenkins’ mutilation of the bible. Thus both evaded the substantial theological questions around God’s less than savoury action as recorded in scripture. 

The Bishop struggled to balance his pastoral and legal duties, his duty of confidentiality towards his clergy and his role as judge over them. He was unconvincing as mediator and as a witness in court. 

In his turn, Judge Phillimore, as the senior judge of the ecclesiastical courts, was overruled by the secular Judicial Committee of the Privy Council. Such is the reality of a State church.

The wider ramifications of the case might have been significant. It keyed into important questions of the nature and meaning of punishment and divine love, the reading and status of scripture, of the Devil in the Church of England. It also, uniquely, raised questions of the extent of a priest’s (and a Bishop’s) powers in relation to the expressed beliefs of a lay member and whether, and to what extent, the beliefs of lay members of the Church were justiciable. But, as ever, the courts completely sidestepped the most sensitive issues . 

And, once any immediate turbulence had passed, the comforting seas closed again over any disturbing question of competence to interpret scripture, or spiritual consequences of selective reading, or the relationship between priest and people, church and biblical authority. The press moved onto other matters, other church conflicts.