The day the British state abolished Hell

An odd episode in legal history

The British state doesn’t just look after the material interests of its citizens. It looks after their spiritual destiny as well.

With not one but two state churches - the Church of England and the Church of Scotland - the United Kingdom is more than usually solicitous of its citizens’ religious welfare.

Today, all this is mostly theoretical. The existence of established churches is largely irrelevant to life in the UK (and they no longer exist in Wales and Northern Ireland). But in the nineteenth century it really, really mattered.

One of the more curious features of Victorian history was a series of legal battles in which clergy and laypeople in the Church of England used the court system to enforce differing interpretations of orthodox Christian belief and practice.

As an established church, the Church of England is not a private organisation, free to determine its own doctrine and discipline without state interference. Nor is it answerable to any supranational authority like the Catholic and Orthodox churches. It was the creation of the English state under Henry VIII. Its bishops are appointed by the Crown, and its legislation remains subject to parliamentary oversight. To this day, Canon A7 of the Church’s code of canon law states:

We acknowledge that the King’s excellent Majesty, acting according to the laws of the realm, is the highest power under God in this kingdom, and has supreme authority over all persons in all causes, as well ecclesiastical as civil.

One consequence of this is that the highest judicial body in the Church of England is a secular state body, the Judicial Committee of the Privy Council. These days, the Committee consists purely of senior judges. In the nineteenth century, bishops and archbishops were also members, or sat alongside the judges as assessors (advisers).

In principle, it is the monarch who rules personally on appeals in ecclesiastical cases - the Privy Council merely ‘advises’ the king or queen what judgment to hand down. It has exercised this function since 1833.

There is another important feature of the Church of England that must be borne in mind. The C of E is not a confessional church. That is, it does not exist to promote a specific system of theology, like Calvinism or Catholicism. Like all churches, it has various official texts, such as the Thirty-Nine Articles and the Book of Common Prayer. But ever since Anglicanism was created in the sixteenth century, it has been a compromise designed to keep differing factions on board. It is impossible - notoriously impossible - to extract a single unitary system of theology from the Church’s core texts.

This has allowed very different and mutually hostile factions to coexist within the borders of the Church. The most important fault lines are the one separating Catholic-minded Anglicans from their Protestant-minded brethren and the one dividing theological conservatives from liberals. In the nineteenth century, both of these fault-lines resulted in bitterly contested litigation which ended up being decided by the Privy Council.

This stream of litigation essentially began in 1847 with the case of the Rev. George Cornelius Gorham. Gorham believed that the baptism of children had no spiritual effect unless the people who were baptised personally endorsed their baptismal commitment in later life. This idea is closer to continental European Calvinism than to mainstream Anglican belief - and consequently Henry Phillpotts, the formidable Bishop of Exeter, refused to grant Gorham an appointment in his diocese. Gorham took his case to the Court of Arches, an Anglican ecclesiastical court, and then to the Privy Council. The Privy Council allowed his appeal in March 1850. Bishop Phillpotts denounced the ruling and threatened to excommunicate any other bishop, including the Archbishop of Canterbury, who might dare to give the heretic Gorham a parish. Nevertheless, the court’s ruling stood, and Gorham spent the rest of his career as the Vicar of Brampford Speke in Devon.

Most of the Victorian litigation flowed from the Catholic-Protestant divide. From the 1830s onwards, a movement arose in the Church of England affirming that the Church’s identity and faith were fundamentally Catholic rather than Protestant. This Anglo-Catholic movement did a number of things that alienated mainstream Protestant Anglicans. They adopted Roman Catholic practices of worship, including practices which treated the consecrated bread and wine in the Eucharist as being truly the body and blood of Jesus Christ. They began to practice personal confession to a priest. They engaged in the veneration of images and prayer to the Virgin Mary.

The main players in the court battles were the English Church Union (founded 1860), which supported the Anglo-Catholic side, and the Church Association (1865), which represented Evangelical Protestants. Not only did the courts get involved in the war of attrition: Parliament was dragged into it too. The Evangelical peer Lord Shaftesbury tried several times to introduce legislation to curb Anglo-Catholic ritual, and in 1874 Archbishop Tait of Canterbury succeeded in passing the anti-ritualist Public Worship Regulation Act with the support of Disraeli and Queen Victoria.

The first case brought against the Anglo-Catholics perhaps came in 1854 with disciplinary litigation against Rev. Robert Liddell, the Vicar of St Paul’s, Knightsbridge. Shortly afterwards, in 1856, Rev. George Denison was condemned by a church court at Bath for teaching that Christ is really present in the Eucharist. In both instances, the cases were appealed up to the Privy Council. In both cases, the Privy Council’s judgment went in favour of the accused priest.

That was nothing compared to what followed, however - and this brings us on to the Privy Council’s controversial decision against Hell.

The case in question arose out of the publication in 1860 of Essays and Reviews, a landmark volume of theological essays written from a liberal Christian perspective. It did not go down well with conservative Anglican opinion. It was published just months after Charles Darwin’s Origin of Species, and it appears to have had an even greater immediate impact. The controversy over the ideas expressed in the book continues today. Essentially, the contributors to Essays affirmed the basic tenets of modern liberal theology and advocated interpreting the Bible in line with contemporary critical scholarship.

This controversy was a liberal-conservative battle rather than a Protestant-Catholic one. On one side were progressive churchmen who accepted the findings of modern biblical research, and on the other were reactionaries who rejected those findings. This battle in turn formed part of the larger war between liberals and conservatives which shaped nineteenth- and early twentieth-century Christianity across the West.

Two of the priests behind the essays - Rowland Williams and Henry Wilson - were accused of heresy and convicted by the Arches Court of Canterbury. They appealed to the Privy Council, resulting in the memorable judgment of Williams v Bishop of Salisbury (1863) 15 ER 943.

The seven-member panel of the Privy Council which heard the appeal consisted of four judges and three bishops. Of the four judges, two were political Conservatives and two were Liberals; and they included three past, present and future Lord Chancellors. The bishops included the Archbishops of Canterbury and York. A star-studded cast indeed.

Judgment was given by the sitting Lord Chancellor, Lord Westbury, on 8 February 1864. To be fair to him, he did try to make it clear that it was not the court’s function to decide matters of faith or to determine what ought to be Anglican doctrine. The court’s function was simply to determine what Anglican doctrine was, and to find whether the defendants had offended against it.

Williams was charged with asserting that the Bible was not the inspired word of God and with teaching error on a relatively technical theological point known as imputed righteousness. Wilson was charged with denying the divine inspiration of the Bible and the doctrine of the Last Judgment, in which the righteous would be saved and the wicked damned for ever.

Lord Westbury had this to say about the Bible:

The proposition or assertion that every part of the Scriptures was written under the inspiration of the Holy Spirit is not to be found either in the [Thirty-Nine] Articles, or in any of the Formularies of the Church….

The framers of the Articles have not used the word ‘inspiration’ as applied to the Holy Scriptures; nor have they laid down anything as to the nature, extent, or limits of that operation of the Holy Spirit.

This was something of a smackdown for the Good Book. As to the suffering of the damned, the Privy Council had to decide whether it was compatible with Anglican orthodoxy to say that the suffering of the damned would only be temporary. If this was the case, the traditional doctrine of Hell would go out of the window, to be replaced with something more like the Catholic idea of a temporary Purgatory. The Lord Chancellor said:

The hope that the punishment of the wicked may not endure to all eternity is certainly not at variance with anything that is found in the Apostles’ Creed, or the Nicene Creed, or in the Absolution which forms part of the Morning and Evening Prayer, or in the Burial Service….

We are not required, or at liberty, to express any opinion upon the mysterious question of the eternity of final punishment, further than to say that we do not find in the Formularies… any such distinct declaration of our Church upon the subject, as to require us to condemn as penal the expression of hope by a clergyman that even the ultimate pardon of the wicked, who are condemned in the day of judgment, may be consistent with the will of Almighty God.

If the Privy Council did not exactly abolish Hell, it certainly abolished it from Anglican doctrine.

Interestingly, the two archbishops who sat in the case dissented from the part of the judgment that allowed a liberal view of whether the Bible was divinely inspired - but they concurred in what was said on Hell.

The Privy Council’s decision caused displeasure in some quarters and amusement in others. One judge, Charles Bowen, wrote that the Privy Council had ‘dismissed hell with costs’.

Williams v Bishop of Salisbury was not the last piece of Church litigation. In particular, the controversy between Anglo-Catholics and Evangelical Protestants continued to rage. The English Church Union and the Church Association continued to hire barristers to tell them what they wanted to hear and to fight each other’s members in court. Matters were only inflamed by the Public Worship Regulation Act 1874, which we referred to above. This Act established a whole new court to oversee matters of Church discipline, and a stream of lawsuits predictably followed. The Act failed to stamp out Anglo-Catholicism, and five priests ended up being imprisoned for contempt of court. The high water-mark was reached in 1888, when the Church Association took on a bishop, the saintly Edward King of Lincoln, for using a series of Catholic ritualistic practices. The Privy Council gave a mixed decision in the case.

These antics did not go unchallenged at the time. A number of Anglican churchmen were displeased at the spectacle of a secular tribunal exercising jurisdiction over religious matters. It was a point of some controversy in Victorian society. Yet this was a fertile time for Anglican doctrinal and liturgical disputes; someone had to rule on them, and in a state church it is no surprise that that someone ended up being a state body.

Things calmed down in the twentieth century. In particular, the battle over ritualistic practices largely died down after the report of a Royal Commission in 1906. Anglican clerics today rarely resort today to the civil courts to decide questions of doctrine, although there are some exceptions to this, such as quixotic attempts to prevent the ordination of women. But the possibility still remains. The final authority over the doctrine of the Church of England lies in Parliament and the state court system. God moves in a very mysterious way in England.