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OCCASIONAL PAPERS
SELECTED FROM THE GUARDIAN, THE TIMES, AND THE SATURDAY REVIEW 1846-1890
By the late R.W. CHURCH, M.A., D.C.L. Sometime Rector of Whatley, Dean of St. Paul's, Honorary Fellow of Oriel College
In Two Vols.—VOL. II
London Macmillan and Co., Limited New York: The Macmillan Company
1897
First Edition February 1897 Reprinted April 1897
CONTENTS
I MR. GLADSTONE ON THE ROYAL SUPREMACY
II JOYCE ON COURTS OF SPIRITUAL APPEAL
III PRIVY COUNCIL JUDGMENTS
IV SIR JOHN COLERIDGE ON THE PURCHAS CASE
V MR. GLADSTONE'S LETTER ON THE ENGLISH CHURCH
VI DISENDOWMENT
VII THE NEW COURT
VIII MOZLEY'S BAMPTON LECTURES
IX ECCE HOMO
X THE AUTHOR OF "ROBERT ELSMERE" ON A NEW REFORMATION
XI RENAN'S "VIE DE JESUS"
XII RENAN'S "LES APOTRES"
XIII RENAN'S HIBBERT LECTURES
XIV RENAN'S "SOUVENIRS D'ENFANCE"
XV LIFE OF FREDERICK ROBERTSON
XVI LIFE OF BARON BUNSEN
XVII COLERIDGE'S MEMOIR OF KEBLE
XVIII MAURICE'S THEOLOGICAL ESSAYS
XIX FREDERICK DENISON MAURICE
XX SIR RICHARD CHURCH
XXI DEATH OF BISHOP WILBERFORCE
XXII RETIREMENT OF THE PROVOST OF ORIEL
XXIII MARK PATTISON
XXIV PATTISON'S ESSAYS
XXV BISHOP FRAZER
XXVI NEWMAN'S "APOLOGIA"
XXVII DR. NEWMAN ON THE "EIRENICON"
XXVIII NEWMAN'S PAROCHIAL SERMONS
XXIX CARDINAL NEWMAN
XXX CARDINAL NEWMAN'S COURSE
XXXI CARDINAL NEWMAN'S NATURALNESS
XXXII LORD BLACHFORD
I
MR. GLADSTONE ON THE ROYAL SUPREMACY[1]
[1] Remarks on the Royal Supremacy, as it is Defined by Reason, History, and the Constitution. A Letter to the Lord Bishop of London, by the Right Hon. W.E. Gladstone, M.P. for the University of Oxford. Guardian, 10th July 1850.
Mr. Gladstone has not disappointed the confidence of those who have believed of him that when great occasions presented themselves, of interest to the Church, he would not be found wanting. A statesman has a right to reserve himself and bide his time, and in doubtful circumstances may fairly ask us to trust his discretion as to when is his time. But there are critical seasons about whose seriousness there can be no doubt. One of these is now passing over the English Church. And Mr. Gladstone has recognised it, and borne himself in it with a manliness, earnestness, and temper which justify those who have never despaired of his doing worthy service to the Church, with whose cause he so early identified himself.
The pamphlet before us, to which he has put his name, is the most important, perhaps, of all that have been elicited by the deep interest felt in the matter on which it treats. Besides its importance as the expression of the opinion, and, it must be added, the anxieties of a leading statesman, it has two intrinsic advantages. It undertakes to deal closely and strictly with those facts in the case mainly belonging to the period of the Reformation, on which the great stress has been laid in the arguments both against our liberty and our very being as a Church. And, further, it gives us on these facts, and, in connection with them, on the events of the crisis itself, the judgment and the anticipations of a mind at once deeply imbued with religious philosophy, and also familiar with the consideration of constitutional questions, and accustomed to view them in their practical entanglements as well as in their abstract and ideal forms. It is, indeed, thus only that the magnitude and the true extent of the relations of the present contest can be appreciated. The intrinsic greatness, indeed, of religious interests cannot receive addition of dignity here. But the manner of treating them may. And Mr. Gladstone has done what was both due to the question at issue, and in the highest degree important for its serious consideration and full elucidation, in raising it from a discussion of abstract principles to what it is no less—a real problem of English constitutional law.
The following passage will show briefly the ground over which the discussion travels:—
The questions, then, that I seek to examine will be as follow:—
1. Did the statutes of the Reformation involve the abandonment of the duty of the Church to be the guardian of her faith?
2. Is the present composition of the appellate tribunal conformable either to reason or to the statutes of the Reformation, and the spirit of the Constitution as expressed in them?
3. Is the Royal Supremacy, according to the Constitution, any bar to the adjustment of the appellate jurisdiction in such a manner as that it shall convey the sense of the Church in questions of doctrine?
All these questions I humbly propose to answer in the negative, and so to answer them in conformity with what I understand to be the principles of our history and law. My endeavour will be to show that the powers of the State so determined, in regard to the legislative office of the Church (setting aside for the moment any question as to the right of assent in the laity), are powers of restraint; that the jurisdictions united and annexed to the Crown are corrective jurisdictions; and that their exercise is subject to the general maxim, that the laws ecclesiastical are to be administered by ecclesiastical judges.
Mr. Gladstone first goes into the question—What was done, and what was the understanding at the Reformation? All agree that this was a time of great changes, and that in the settlement resulting from them the State took, and the Church yielded, a great deal. And on the strength of this broad general fact, the details of the settlement have been treated with an a priori boldness, not deficient often in that kind of precision which can be gained by totally putting aside inconvenient or perplexing elements, and having both its intellectual and moral recommendations to many minds; but highly undesirable where a great issue has been raised for the religion of millions, and the political constitution of a great nation. Men who are not lawyers seem to have thought that, by taking a lawyer's view, or what they considered such, of the Reformation Acts, they had disposed of the question for ever. It was, indeed, time for a statesman to step in, and protest, if only in the name of constitutional and political philosophy, against so narrow and unreal an abuse of law-texts—documents of the highest importance in right hands, and in their proper place, but capable, as all must know, of leading to inconceivable absurdity in speculation, and not impossibly fatal confusion in fact.
The bulk of this pamphlet is devoted to the consideration of the language and effect, legal and constitutional, of those famous statutes with the titles of which recent controversy has made us so familiar. Mr. Gladstone makes it clear that it does not at all follow that because the Church conceded a great deal, she conceded, or even was expected to concede, indefinitely, whatever might be claimed. She conceded, but she conceded by compact;—a compact which supposed her power to concede, and secured to her untouched whatever was not conceded. And she did not concede, nor was asked for, her highest power, her legislative power. She did not concede, nor was asked to concede, that any but her own ministers—by the avowal of all drawing their spiritual authority from a source which nothing human could touch—should declare her doctrine, or should be employed in administering her laws. What she did concede was, not original powers of direction and guidance, but powers of restraint and correction;—under securities greater, both in form and in working, than those possessed at the time by any other body in England, for their rights and liberties—greater far than might have been expected, when the consequences of a long foreign supremacy—not righteously maintained and exercised, because at the moment unrighteously thrown off—increased the control which the Civil Government always must claim over the Church, by the sudden abstraction of a power which, though usurping, was spiritual; and presented to the ambition of a despotic King a number of unwarrantable prerogatives which the separation from the Pope had left without an owner.
On the trite saying, meant at first to represent, roughly and invidiously, the effect of the Reformation, and lately urged as technically and literally true—"The assertion that in the time of Henry VIII. the See of Rome was both 'the source and centre of ecclesiastical jurisdiction,' and therefore the supreme judge of doctrine; and that this power of the Pope was transferred in its entireness to the Crown"—Mr. Gladstone remarks as follows:—
I will not ask whether the Pope was indeed at that time the supreme judge of doctrine; it is enough for me that not very long before the Council of Constance had solemnly said otherwise, in words which, though they may be forgotten, cannot be annulled....
That the Pope was the source of ecclesiastical jurisdiction in the English Church before the Reformation is an assertion of the gravest import, which ought not to have been thus taken for granted.... The fact really is this:—A modern opinion, which, by force of modern circumstances, has of late gained great favour in the Church of Rome, is here dated back and fastened upon ages to whose fixed principles it was unknown and alien; and the case of the Church of England is truly hard when the Papal authority of the Middle Ages is exaggerated far beyond its real and historical scope, with the effect only of fastening that visionary exaggeration, through the medium of another fictitious notion of wholesale transfer of the Papal privileges to the Crown, upon us, as the true and legal measure of the Royal Supremacy.
It appears to me that he who alleges in the gross that the Papal prerogatives were carried over to the Crown at the Reformation, greatly belies the laws and the people of that era. Their unvarying doctrine was, that they were restoring the ancient regal jurisdiction, and abolishing one that had been usurped. But there is no evidence to show that these were identical in themselves, or co-extensive in their range. In some respects the Crown obtained at that period more than the Pope had ever had; for I am not aware that the Convocation required his license to deliberate upon canons, or his assent to their promulgation. In other respects the Crown acquired less; for not the Crown, but the Archbishop of Canterbury was appointed to exercise the power of dispensation in things lawful, and to confirm Episcopal elections. Neither the Crown nor the Archbishop succeeded to such Papal prerogatives as were contrary to the law of the land; for neither the 26th of Henry VIII. nor the 2nd of Elizabeth annexed to the Crown all the powers of correction and reformation which had been actually claimed by the Pope, but only such as "hath heretofore been or may lawfully be exercised or used." ... The "ancient jurisdiction," and not the then recently claimed or exercised powers, was the measure and the substance of what the Crown received from the Legislature; and, with those ancient rights for his rule, no impartial man would say that the Crown was the source of ecclesiastical jurisdiction according to the statutes of the Reformation. But the statutes of the Reformation era relating to jurisdiction, having as statutes the assent of the laity, and accepted by the canons of the clergy, are the standard to which the Church has bound herself as a religious society to conform.
The word "jurisdiction" has played an important part in the recent discussions; whether its meaning, with its various involved and associated ideas, by no means free from intricacy and confusion, have been duly unravelled and made clear, we may be permitted to doubt. A distinction of the canonists has been assumed by those who have used the word with most precision—assumed, though it is by no means a simple and indisputable one. Mr. Gladstone draws attention to this, when, after noticing that nowhere in the ecclesiastical legislation of Elizabeth is the claim made on behalf of the Crown to be the source of ecclesiastical jurisdiction, he admits that this is the language of the school of English law, and offers an explanation of the fact. That which Acts of Parliament do not say, which is negatived in actual practice by contradictory and irreconcilable facts, is yet wanted by lawyers for the theoretic completeness of their idea and system of law. The fact is important as a reminder that what is one real aspect, or, perhaps, the most complete and consistent representation of a system on paper, may be inadequate and untrue as an exhibition of its real working and appearance in the world.
To sum up the whole, then, I contend that the Crown did not claim by statute, either to be of right, or to become by convention, the source of that kind of action, which was committed by the Saviour to the Apostolic Church, whether for the enactment of laws, or for the administration of its discipline; but the claim was, that all the canons of the Church, and all its judicial proceedings, inasmuch as they were to form parts respectively of the laws and of the legal administration of justice in the kingdom, should run only with the assent and sanction of the Crown. They were to carry with them a double force—a force of coercion, visible and palpable; a force addressed to conscience, neither visible nor palpable, and in its nature only capable of being inwardly appreciated. Was it then unreasonable that they should bear outwardly the tokens of that power to which they were to be indebted for their outward observance, and should work only within by that wholly different influence that governs the kingdom which is not of this world, and flows immediately from its King? ... But while, according to the letter and spirit of the law, such appear to be the limits of the Royal Supremacy in regard to the legislative, which is the highest, action of the Church, I do not deny that in other branches it goes farther, and will now assume that the supremacy in all causes, which is at least a claim to control at every point the jurisdiction of the Church, may also be construed to mean as much as that the Crown is the ultimate source of jurisdiction of whatever kind.
Here, however, I must commence by stating that, as it appears to me, Lord Coke and others attach to the very word jurisdiction a narrower sense than it bears in popular acceptation, or in the works of canonists—a sense which excludes altogether that of the canonists; and also a sense which appears to be the genuine and legitimate sense of the word in its first intention. Now, when we are endeavouring to appreciate the force and scope of the legal doctrine concerning ecclesiastical and spiritual jurisdiction, it is plain that we must take the term employed in the sense of our own law, and not in the different and derivative sense in which it has been used by canonists and theologians. But canonists themselves bear witness to the distinction which I have now pointed out. The one kind is Jurisdictio coactiva proprie dicta, principibus data; the other is Jurisdictio improprie dicta ac mere spiritualis, Ecclesiae ejusque Episcopis a Christo data....
Properly speaking, I submit that there is no such thing as jurisdiction in any private association of men, or anywhere else than under the authority of the State. Jus is the scheme of rights subsisting between men in the relations, not of all, but of civil society; and jurisdicto is the authority to determine and enunciate those rights from time to time. Church authority, therefore, so long as it stands alone, is not in strictness of speech, or according to history, jurisdiction, because it is not essentially bound up with civil law.
But when the State and the Church came to be united, by the conversion of nations, and the submission of the private conscience to Christianity—when the Church placed her power of self-regulation under the guardianship of the State, and the State annexed its own potent sanction to rules, which without it would have been matter of mere private contract, then jus or civil right soon found its way into the Church, and the respective interests and obligations of its various orders, and of the individuals composing them, were regulated by provisions forming part of the law of the land. Matter ecclesiastical or spiritual moulded in the forms of civil law, became the proper subject of ecclesiastical or spiritual jurisdiction, properly so called.
Now, inasmuch as laws are abstractions until they are put into execution, through the medium of executive and judicial authority, it is evident that the cogency of the reasons for welding together, so to speak, civil and ecclesiastical authority is much more full with regard to these latter branches of power than with regard to legislation. There had been in the Church, from its first existence as a spiritual society, a right to govern, to decide, to adjudge for spiritual purposes; that was a true, self-governing authority; but it was not properly jurisdiction. It naturally came to be included, or rather enfolded, in the term, when for many centuries the secular arm had been in perpetual co-operation with the tribunals of the Church. The thing to be done, and the means by which it was done, were bound together; the authority and the power being always united in fact, were treated as an unity for the purposes of law. As the potentate possessing not the head but the mouth or issue of a river, has the right to determine what shall pass to or from the sea, so the State, standing between an injunction of the Church and its execution, had a right to refer that execution wholly to its own authority.
There was not contained or implied in such a doctrine any denial of the original and proper authority of the Church for its own self-government, or any assertion that it had passed to and become the property of the Crown. But that authority, though not in its source, yet in its exercise, had immersed itself in the forms of law; had invoked and obtained the aid of certain elements of external power, which belonged exclusively to the State, and for the right and just use of which the State had a separate and independent responsibility, so that it could not, without breach of duty, allow them to be parted from itself. It was, therefore, I submit, an intelligible and, under given circumstances, a warrantable scheme of action, under which the State virtually said: Church decrees, taking the form of law, and obtaining their full and certain effect only in that form, can be executed only as law, and while they are in process of being put into practice can only be regarded as law, and therefore the whole power of their execution, that is to say, all juris diction in matters ecclesiastical and spiritual, must, according to the doctrine of law, proceed from the fountain-head of law, namely, from the Crown. In the last legal resort there can be but one origin for all which is to be done in societies of men by force of legal power; nor, if so, can doubt arise what that origin must be.
If you allege that the Church has a spiritual authority to regulate doctrines and discipline, still, as you choose to back that authority with the force of temporal law, and as the State is exclusively responsible for the use of that force, you must be content to fold up the authority of the Church in that exterior form through which you desire it to take effect. From whatsoever source it may come originally, it comes to the subject as law; it therefore comes to him from the fountain of law.... The faith of Christendom has been received in England; the discipline of the Christian Church, cast into its local form, modified by statutes of the realm, and by the common law and prerogative, has from time immemorial been received in England; but we can view them only as law, although you may look further back to the divine and spiritual sanction, in virtue of which they acquired that social position, which made it expedient that they should associate with law and should therefore become law.
But as to the doctrine itself, it is most obvious to notice that it is not more strange, and not necessarily more literally real, than those other legal views of royal prerogative and perfection, which are the received theory of all our great jurists—accepted by them for very good reasons, but not the less astounding when presented as naked and independent truths. It was natural enough that they should claim for the Crown the origination of ecclesiastical jurisdiction, considering what else they claimed for it. Mr. Allen can present us with a more than Chinese idea of royal power, when he draws it only from Blackstone:—
They may have heard [he says, speaking of the "unlearned in the law"] that the law of England is founded in reason and wisdom. The first lesson they are taught will inform them, that the law of England attributes to the King absolute perfection, absolute immortality, and legal ubiquity. They will be told that the King of England is not only incapable of doing wrong, but of thinking wrong. They will be informed that he never dies, that he is invisible as well as immortal, and that in the eye of the law he is present at one and the same instant in every court of justice within his dominions.... They may have been told that the royal prerogative in England is limited; but when they consult the sages of the law, they will be assured that the legal authority of the King of England is absolute and irresistible ... that all are under him, while he is under none but God....
If they have had the benefit of a liberal education, they have been taught that to obtain security for persons and property was the great end for which men submitted to the restraints of civil government; and they may have heard of the indispensable necessity of an independent magistracy for the due administration of justice; but when they direct their inquiries to the laws and constitution of England, they will find it an established maxim in that country that all jurisdiction emanates from the Crown. They will be told that the King is not ony the chief, but the sole magistrate of the nation; and that all others act by his commission, and in subordination to him.[2]
[2] Allen on the Royal Prerogative, pp. 1-3.
"In the most limited monarchy," as he says truly the "King is represented in law books, as in theory an absolute sovereign." "Even now," says Mr. Gladstone, "after three centuries of progress toward democratic sway, the Crown has prerogatives by acting upon which, within their strict and unquestioned bounds, it might at any time throw the country into confusion. And so has each House of Parliament." But if the absolute supremacy of the Crown in the legal point of mew exactly the same over temporal matters and causes as over spiritual, is taken by no sane man to be a literal fact in temporal matters, it is violating the analogy of the Constitution, and dealing with the most important subjects in a mere spirit of narrow perverseness, to insist that it can have none but a literal meaning in ecclesiastical matters; and that the Church did mean, though the State did not to accept a despotic prerogative, unbounded by custom, convention, or law, and unchecked by acknowledged and active powers in herself. Yet such is the assumption, made in bitterness and vexation of spirit by some of those who have lately so hastily given up her cause; made with singular assurance by others, who, Liberals in all their political doctrines, have, for want of better arguments, invoked prerogative against the Church.
What the securities and checks were that the Church, not less than the nation, contemplated and possessed, are not expressed in the theory itself of the royal prerogative; and, as in the ease of the nation, we might presume beforehand, that they would be found in practice rather than on paper. They were, however, real ones. "With the same theoretical laxity and practical security," as in the case of Parliaments and temporal judges, "was provision made for the conduct of Church affairs." Making allowance for the never absent disturbances arising out of political trouble and of personal character, the Church had very important means of making her own power felt in the administration of her laws, as well as in the making of them.
The real question, I apprehend, is this:—When the Church assented to those great concessions which were embodied in our permanent law at the Reformation, had she adequate securities that the powers so conveyed would be exercised, upon the whole, with a due regard to the integrity of her faith, and of her office, which was and has ever been a part of that faith? I do not ask whether these securities were all on parchment or not—whether they were written or unwritten—whether they were in statute, or in common law, or in fixed usage, or in the spirit of the Constitution and in the habits of the people—I ask the one vital question, whether, whatever they were in form, they were in substance sufficient?
The securities which the Church had were these: First, that the assembling of the Convocation was obviously necessary for the purposes of taxation; secondly and mainly, that the very solemn and fundamental laws by which the jurisdiction of the See of Rome was cut off, assigned to the spiritualty of the realm the care of matters spiritual, as distinctly and formally as to the temporalty the care of matters temporal; and that it was an understood principle, and (as long as it continued) a regular usage of the Constitution, that ecclesiastical laws should be administered by ecclesiastical judges. These were the securities on which the Church relied; on, which she had a right to rely; and on which, for a long series of years, her alliance was justified by the results.
And further:—
The Church had this great and special security on which to rely, that the Sovereigns of this country were, for a century after the Reformation, amongst her best instructed, and even in some instances her most devoted children: that all who made up the governing body (with an insignificant exception) owned personal allegiance to her, and that she might well rest on that personal allegiance as warranting beforehand the expectation, which after experience made good, that the office of the State towards her would be discharged in a friendly and kindly spirit, and that the principles of constitutional law and civil order would not be strained against her, but fairly and fully applied in her behalf.
These securities she now finds herself deprived of. This is the great change made in her position—made insensibly, and In a great measure, undesignedly—which has altered altogether the understanding on which she stood towards the Crown at the Reformation. It now turns out that that understanding, though it might have been deemed sufficient for the time, was not precise enough; and further, was not sufficiently looked after in the times which followed. And on us comes the duty of taking care that it be not finally extinguished; thrown off by the despair of one side, and assumed by the other as at length abandoned to their aggression.
Mr. Gladstone comes to the question with the feelings of a statesman, conscious of the greatness and excellence of the State, and anxious that the Church should not provoke its jealousy, and in urging her claims should "take her stand, as to all matters of substance and principle, on the firm ground of history and law." It makes his judgment on the present state of things more solemn, and his conviction of the necessity of amending it more striking, when they are those of one so earnest for conciliation and peace. But on constitutional not less than on other grounds, he pronounces the strongest condemnation on the present formation of the Court of Appeal, which, working in a way which even its framers did not contemplate, has brought so much distress into the Church, and which yet, in defiance of principle, of consistency, and of the admission of its faultiness, is so recklessly maintained. Feeling and stating very strongly the evil sustained by the Church, from the suspension of her legislative powers,—"that loss of command over her work, and over the heart of the nation, which it has brought upon her,"—so strongly indeed that his words, coming from one familiar with the chances and hazards of a deliberative assembly, give new weight to the argument for the resumption of those powers,—feeling all this, he is ready to acquiesce in the measure beyond which the Bishops did not feel authorised to go, and which Mr. Gladstone regards as "representing the extremest point up to which the love of peace might properly carry the concessions of the Church":—
That which she is entitled in the spirit of the Constitution to demand would be that the Queen's ecclesiastical laws shall be administered by the Queen's ecclesiastical judges, of whom the Bishops are the chief; and this, too, under the checks which the sitting of a body appointed for ecclesiastical legislation would impose.
But if it is not of vital necessity that a Church Legislature should sit at the present time—if it is not of vital necessity that all causes termed ecclesiastical should be treated under special safeguards—if it is not of vital necessity that the function of judgment should be taken out of the hands of the existing court—let the Church frankly and at once subscribe to every one of these great concessions, and reduce her demands to a minimum at the outset.
Laws ecclesiastical by ecclesiastical judges, let this be her principle; it plants her on the ground of ancient times, of the Reformation, of our continuous history, of reason and of right. The utmost moderation, in the application of the principle, let this he her temper, and then her case will be strong in the face of God and man, and, come what may, she will conquer.... If, my Lord, it be felt by the rulers of the Church, that a scheme like this will meet sufficiently the necessities of her case, it must be no small additional comfort to them to feel that their demand is every way within the spirit of the Constitution, and short of the terms which the great compact of the Reformation would authorise you to seek. You, and not those who are against you, will take your stand with Coke and Blackstone; you, and not they, will wield the weapons of constitutional principle and law; you, and not they, will be entitled to claim the honour of securing the peace of the State no less than the faith of the Church; you, and not they, will justly point the admonitory finger to those remarkable words of the Institutes:—
"And certain it is, that this Kingdom hath been best governed, and peace and quiet preserved, when both parties, that is, when the justices of the temporal courts and the ecclesiastical judges have kept themselves within their proper jurisdiction, without encroaching or usurping one upon another; and where such encroachments or usurpations have been made, they have been the seeds of great trouble and inconvenience."
Because none can resist the principle of your proposal, who admit that the Church has a sphere of proper jurisdiction at all, or any duty beyond that of taking the rule of her doctrine and her practice from the lips of ministers or parliaments. If it shall be deliberately refused to adopt a proposition so moderate, so guarded and restrained in the particular instance, and so sustained by history, by analogy, and by common reason, in the case of the faith of the Church, and if no preferable measure be substituted, it can only be in consequence of a latent intention that the voice of the Civil Power should be henceforward supreme in the determination of Christian doctrine.
We trust that such an assurance, backed as it is by the solemn and earnest warnings of one who is not an enthusiast or an agitator, but one of the leading men in the Parliament of England, will not be without its full weight with those on whom devolves the duty of guiding and leading us in this crisis. The Bishops of England have a great responsibility on them. Reason, not less than Christian loyalty and Christian charity, requires the fairest interpretation of their acts, and it may be of their hesitation,—the utmost consideration of their difficulties. But reason, not less than Christian loyalty and charity, expects that, having accepted the responsibilities of the Episcopate, they should not withdraw from them when they arrive; and that there should be neither shrinking nor rest nor compromise till the creed and the rights of the Church entrusted to their fidelity be placed, as far as depends on them, beyond danger.
II
JOYCE ON COURTS OF SPIRITUAL APPEAL[3]
[3] Ecclesia Vindicata; a Treatise on Appeals in Matters Spiritual. By James Wayland Joyce. Saturday Review, 22nd October 1864.
Nothing can be more natural than the extreme dissatisfaction felt by a large body of persons in the Church of England at the present Court of Final Appeal in matters of doctrine. The grievance, and its effect, may have been exaggerated; and the expressions of feeling about it certainly have not always been the wisest and most becoming. But as the Church of England is acknowledged to hold certain doctrines on matters of the highest importance, and, in common with all other religious bodies, claims the right of saying what are her own doctrines, it is not surprising that an arrangement which seems likely to end in handing over to indifferent or unfriendly judges the power of saying what those doctrines are, or even whether she has any doctrines at all, should create irritation and impatience. There is nothing peculiar to the English Church in the assumption, either that outsiders should not meddle with and govern what she professes to believe and teach, or that the proper and natural persons to deal with theological questions are the class set apart to teach and maintain her characteristic belief. Whatever may ultimately become of these assumptions, they unquestionably represent the ideas which have been derived from the earliest and the uniform practice of the Christian Church, and are held by most even of the sects which have separated from it. To any one who does not look upon the English Church as simply a legally constituted department of the State, like the army or navy or the department of revenue, and believes it to have a basis and authority of its own, antecedent to its rights by statute, there cannot but be a great anomaly in an arrangement which, when doctrinal questions are pushed to their final issues, seems to deprive her of any voice or control in the matters in which she is most interested, and commits them to the decision, not merely of a lay, but of a secular and not necessarily even Christian court, where the feeling about them is not unlikely to be that represented by the story, told by Mr. Joyce, of the eminent lawyer who said of some theological debate that he could only decide it "by tossing up a coin of the realm." The anomaly of such a court can hardly be denied, both as a matter of theory and—supposing it to matter at all what Church doctrine really is—as illustrated in some late results of its action. It is still more provoking to observe, as Mr. Joyce brings out in his historical sketch, that simple carelessness and blundering have conspired with the evident tendency of things to cripple and narrow the jurisdiction of the Church in what seems to be her proper sphere. The ecclesiastical appeals, before the Reformation, were to the ecclesiastical jurisdiction alone. They were given to the civil power by the Tudor legislation, but to the civil power acting, if not by the obligation of law, yet by usage and in fact, through ecclesiastical organs and judges. Lastly, by a recent change, of which its authors have admitted that they did not contemplate the effect, these appeals are now to the civil jurisdiction acting through purely civil courts. It is an aggravation of this, when the change which seems so formidable has become firmly established, to be told that it was, after all, the result of accident and inadvertence, and a "careless use of terms in drafting an Act of Parliament"; and that difficult and perilous theological questions have come, by "a haphazard chance," before a court which was never meant to decide them. It cannot be doubted that those who are most interested in the Church of England feel deeply and strongly about keeping up what they believe to be the soundness and purity of her professed doctrine; and they think that, under fair conditions, they have clear and firm ground for making good their position. But it seems by no means unlikely that in the working of the Court of Final Appeal there will be found a means of evading the substance of questions, and of disposing of very important issues by a side wind, to the prejudice of what have hitherto been recognised as rightful claims. An arrangement which bears hard upon the Church theoretically, as a controversial argument in the hands of Dr. Manning or Mr. Binney, and as an additional proof of its Erastian subjection to the State, and which also works ill and threatens serious mischief, may fairly be regarded by Churchmen with jealousy and dislike, and be denounced as injurious to interests for which they have a right to claim respect. The complaint that the State is going to force new senses on theological terms, or to change by an unavowed process the meaning of acknowledged formularies in such a body as the English Church, is at least as deserving of attention as the reluctance of conscientious Dissenters to pay Church-rates.
Mr. Joyce's book shows comprehensively and succinctly the history of the changes which have brought matters to their present point, and the look which they wear in the eyes of a zealous Churchman, disturbed both by the shock given to his ideas of fitness and consistency, and by the prospect of practical evils. It is a clergyman's view of the subject, but it is not disposed of by saying that it is a clergyman's view. It is incomplete and one-sided, and leaves out considerations of great importance which ought to be attended to in forming a judgment on the whole question; but it is difficult to say that, regarded simply in itself, the claim that the Church should settle her own controversies, and that Church doctrine should be judged of in Church courts, is not a reasonable one. The truth is that the present arrangement, if we think only of its abstract suitableness and its direct and ostensible claims to our respect, would need Swift himself to do justice to its exquisite unreasonableness. It is absurd to assume, as it is assumed in the whole of our ecclesiastical legislation, that the Church is bound to watch most jealously over doctrine, and then at the last moment to refuse her the natural means of guarding it. It is absurd to assume that the "spiritualty" are the only proper persons to teach doctrine, and then to act as if they were unfit to judge of doctrine. It is not easy, in the abstract, to see why articles which were trusted to clergymen to draw up may not be trusted to clergymen to explain, and why what there was learning and wisdom enough to do in the violent party times and comparative inexperience of the Reformation, cannot be safely left to the learning and wisdom of our day for correction or completion. If Churchmen and ecclesiastics may care too much for the things about which they dispute, it seems undeniable that lawyers who need not even be Christians, may care for them too little; and if the Churchmen make a mistake in the matter, at least it is their own affair, and they may be more fairly made to take the consequences of their own acts than of other people's. A strong case, if a strong case were all that was wanted, might be made out for a change in the authority which at present pronounces in the last resort on Church of England doctrine.
But the difficulty is, not to see that the present state of things, which has come about almost by accident, is irregular and unsatisfactory, and that in it the civil power has stolen a march on the privileges which even Tudors and Hanoverians left to the Church, but to suggest what would be more just and more promising. A mixed tribunal, composed of laymen and ecclesiastics, would be in effect, as Mr. Joyce perceives, simply the present court with a sham colour of Church authority added to it; and he describes with candid force the confusion which might arise if the lawyers and divines took different sides, and how, in the unequal struggle, the latter might "find themselves hopelessly prostrate in the stronger grasp of their more powerful associates." His own scheme of a theological and ecclesiastical committee of reference, to which a purely legal tribunal might send down questions of doctrine to be answered, as "experts" or juries give answers about matters of science or matters of fact, is hardly more hopeful; for even he would not bind the legal court, as of course it could not be bound, to accept the doctrine of the ecclesiastical committee. He promises, indeed, on the authority of Lord Derby, that in ninety-nine cases out of a hundred the lawyers would accept the answer of the divines; but whatever the scandal is now, it would be far greater if an unorthodox judgment were given in flat contradiction to the report of the committee of reference.
As to a purely ecclesiastical Court of Appeal, in the present state of the Church both in England and all over the world, it ought to console those who must be well aware that here at least it is hardly to be looked for, to reflect how such courts act, after all, where they have the power to act, and how far things would have gone in a better or happier fashion among us if, instead of the Privy Council, there had been a tribunal of divines to give final judgment. The history of appeals to Rome, from the days of the Jansenists and Fenelon to those of Lamennais, may be no doubt satisfactory to those who believe it necessary to ascribe to the Pope the highest wisdom and the most consummate justice; but to those who venture to notice the real steps of the process, and the collateral considerations, political and local, which influenced the decision, the review is hardly calculated to make those who are debarred from it regret the loss of this unalloyed purity of ecclesiastical jurisdiction. And, as regards ourselves, it is true that an ecclesiastical tribunal would hardly have been ingenious enough to find the means of saying that Messrs. Wilson and Williams had not taught in contradiction to the doctrines of the English Church, and that they actually, under its present constitution, possessed the liberty which, under a different—and, as some people think, a better—constitution, they might possess. But it ought also to be borne in mind what other judgments ecclesiastical tribunals might have given. An ecclesiastical tribunal, unless it had been packed or accidentally one-sided, would probably have condemned Mr. Gorham. An ecclesiastical tribunal would almost certainly have expelled Archdeacon Denison from his preferments. Indeed, the judgment of the Six Doctors on Dr. Pusey, arbitrary and unconstitutional as it may be considered, was by no means a doubtful foreshadowing of what a verdict upon him would have been from any court that we can imagine formed of the high ecclesiastical authorities of the time. It undoubtedly seems the most natural thing in the world that a great religious body should settle, without hindrance, its own doctrines and control its own ministers; but it is also some compensation for the perversity with which the course of things has interfered with ideal completeness, that our condition, if it had been theoretically perfect, would have been perfectly intolerable.
It would be highly unwise in those who direct the counsels of the Church of England to accept a practical disadvantage for the gain of a greater simplicity and consistency of system. The true moral to be deduced from the anomalies of ecclesiastical appeals seems to be, to have as little to do with them as possible. The idea of seeking a remedy for the perplexities of theology in judicial rulings, and the rage for having recourse to law courts, are of recent date in our controversies. They were revived among us as one of the results of the violent panic caused by the Oxford movement, and of the inconsiderate impatience of surprised ignorance which dictated extreme and forcible measures; and as this is a kind of game at which, when once started, both parties can play, the policy of setting the law in motion to silence theological opponents has become a natural and favourite one. But it may be some excuse for the legislators who, in 1833, in constructing a new Court of Appeal, so completely forgot or underrated the functions which it would be called to discharge in the decision of momentous doctrinal questions, that at the time no one thought much of carrying theological controversies to legal arbitrament. The experiment is a natural one to have been made in times of strong and earnest religious contention; but, now that it has had its course, it is not difficult to see that it was a mistaken one. There seems something almost ludicrously incongruous in bringing a theological question into the atmosphere and within the technical handling of a law court, and in submitting delicate and subtle attempts to grasp the mysteries of the unseen and the infinite, of God and the soul, of grace and redemption, to the hard logic and intentionally confined and limited view of forensic debate. Theological truth, in the view of all who believe in it, must always remain independent of a legal decision; and, therefore, as regards any real settlement, a theological question must come out of a legal sentence in a totally different condition from any others where the true and indisputable law of the case is, for the time at least, what the supreme tribunal has pronounced it to be. People chafed at not getting what they thought the plain broad conclusions from facts and documents accepted; they appealed to law from the uncertainty of controversy, and found law still more uncertain, and a good deal more dangerous. They thought that they were going to condemn crimes and expel wrongdoers; they found that these prosecutions inevitably assumed the character of the old political trials, which were but an indirect and very mischievous form of the struggle between two avowed parties, and in which, though the technical question was whether the accused had committed the crime, the real one was whether the alleged crime were a crime at all. Accordingly, wider considerations than those arising out of the strict merits of the case told upon the decision; and the negative judgment, and resolute evasion of a condemnation, in each of the cases which were of wide and serious importance, were proofs of the same tendency in English opinion which has made political trials, except in the most extreme cases, almost inconceivable. They mean that the questions raised must be fought out and settled in a different and more genuine way, and that law feels itself out of place when called to interfere in them. As all parties have failed in turning the law into a weapon, and yet as all parties have really gained much more than they have lost by the odd anomalies of our ecclesiastical jurisprudence, the wisest course would seem to be for those who feel the deep importance of doctrinal questions to leave the law alone, either as to employing it or attempting to change it. Controversy, argument, the display of the intrinsic and inherent strength of a great and varied system, are what all causes must in the last resort trust to. Lord Westbury will have done the Church of England more good than perhaps he thought of doing, if his dicta make theologians see that they can be much better and more hopefully employed than in trying legal conclusions with unorthodox theorisers, or in busying themselves with inventing imaginary improvements for a Final Court of Appeal.
III
PRIVY COUNCIL JUDGMENTS[4]
[4] A Collection of the Judgments of the Judicial Committee of the Privy Council in Ecclesiastical Cases relating to Doctrine and Discipline; with a Preface by the Lord Bishop of London, and an Historical Introduction. Edited by the Hon. G. Brodrick, Barrister-at-Law, and Rev. the Hon. W.H. Fremantle, Chaplain to the Bishop of London. Guardian, 15th February 1865.
The Bishop of London has done a useful service in causing the various decisions of the present Court of Appeal to be collected into a volume. There is such an obvious convenience about the plan that it hardly needed the conventional reason given for it, that "the knowledge generally possessed on the subject of the Court is vague, and the sources from which accurate information can be obtained are little understood; and that people who discuss it ought in the first place to know what the Court is, and what it does." This is the mere customary formula of a preface turned into a rhetorical insinuation which would have been better away; most of those who care about the subject, and have expressed opinions about it, know pretty well the nature of the Court and the result of its working, and whatever variations there may be in the judgment passed upon it arise not from any serious imperfection of knowledge but from differences of principle. It was hardly suitable in a work like this to assume a mystery and obscurity about the subject where there is really none, and to claim superior exactness and authenticity of information about a matter which in all its substantial points is open to all the world. And we could conceive the design, well-intentioned as it is, carried out in a way more fitting to the gravity of the occasion which has suggested it. The Bishop says truly enough that the questions involved in the constitution of such a court are some of the most difficult with which statesmen have to deal. Therefore it seems to us that a collection of the decisions of such a court, put forth for the use of the Church and nation under the authority of the Bishop of London, ought to have had the dignity and the reserve of a work meant for permanence and for the use of men of various opinions, and ought not to have had even the semblance, as this book has, of an ex parte pamphlet. The Bishop of London is, of course, quite right to let the Church know what he thinks about the Court of Final Appeal; and he is perfectly justified in recommending us, in forming our opinion, to study carefully the facts of the existing state of things; but it seems hardly becoming to make the facts a vehicle for indirectly forcing on us, in the shape of comments, a very definite and one-sided view of them, which is the very subject of vehement contradiction and dispute. It would have been better to have committed what was necessary in the way of explanation and illustration to some one of greater weight and experience than two clever young men of strong bias and manifest indisposition to respect or attend to, or even to be patient with, any aspect of the subject but their own in this complicated and eventful question, and who, partly from overlooking great and material elements in it, and partly from an imperfect apprehension of what they had to do, have failed to present even the matters of fact with which they deal with the necessary exactness and even-handedness. It seems to us that in a work intended for the general use of the Church and addressed to men of all opinions, they only remember to be thoroughgoing advocates and justifiers of the Court which happens to have grown into such important consequence to the English Church. The position is a perfectly legitimate one; but we think it had better not have been connected with a documentary work like the present, set forth by the direction and under the sanction of a Bishop of London.
In looking over the cases which have been brought together into a connected series, the first point which is suggested by the review is the great and important change in the aspect and bearing of doctrinal controversies, and in the situation of the Church, as affected by them, which the creation and action of this Court have made. From making it almost a matter of principle and boast to dispense with any living judge of controversies, the Church has passed to having a very energetic one. Up to the Gorham judgment, it can hardly be said that the ruling of courts of law had had the slightest influence on the doctrinal position and character of the Church. Keen and fierce as had been the controversies in the Church up to that judgment, how often had a legal testing of her standards been seriously sought for or seriously appealed to? There had been accusations of heresy, trials, condemnations, especially in the times following the Reformation and preceding the Civil War; there had been appeals and final judgments given in such final courts as existed; but all without making any mark on the public mind or the received meaning of doctrines and formularies, and without leaving a trace except in law reports. They seem to have been forgotten as soon as the particular case was disposed of. The limits of supposed orthodox belief revived; but it was not the action of judicial decisions which either narrowed or enlarged them. Bishop Marsh's Calvinists never thought of having recourse to law. If the Church did not do entirely without a Court of Final Appeal, it is simply a matter of fact that the same weight and authority were not attached to the proceedings of such a court which are attached to them now. But since the Gorham case, the work of settling authoritatively, if not the meaning of doctrines and of formularies, at any rate the methods of interpreting and applying them, has been briskly going on in the courts, and a law laid down by judges without appeal has been insensibly fastening its hold upon us. The action of the courts is extolled as being all in the direction of liberty. Whatever this praise may be worth, it is to be observed that it is, after all, a wooden sort of liberty, and shuts up quite as much as it opens. It may save, in this case or that, individual liberty; but it does so by narrowing artificially the natural and common-sense grounds of argument in religious controversy, and abridging as much as possible the province of theology. Before the Gorham case, the Formularies in general were the standard and test, free to both sides, about baptismal regeneration. Both parties had the ground open to them, to make what they could of them by argument and reason. Discipline was limited by the Articles and Formularies, and in part by the authority of great divines and by the prevailing opinion of the Church, and by nothing else; these were the means which each side had to convince and persuade and silence the other, and each side might hope that in the course of time its sounder and better supported view might prevail. But now upon this state of things comes from without a dry, legal, narrow stereotyping, officially and by authority, of the sense to be put upon part of the documents in the controversy. You appeal to the Prayer-book; your opponent tells you, Oh, the Court of Appeal has ruled against you there: and that part of your case is withdrawn from you, and he need give himself no trouble to argue the matter with you. Against certain theological positions, perhaps of great weight, and theological evidence, comes, not only the doctrine of theological opponents, but the objection that they are bad law. The interpretation which, it may be, we have assumed all our lives, and which we know to be that of Fathers and divines, is suddenly pronounced not to be legal. The decision does not close the controversy, which goes on as keenly and with perhaps a little more exasperation than before; it simply stops off, by virtue of a legal construction, a portion of the field of argument for one party, which was, perhaps, supposed to have the strongest claim to it. The Gorham case bred others; and now, at last, after fifteen years, we have got, as may be seen in Messrs. Brodrick and Fremantle's book, a body of judicial dicta, interpretations, rules of exposition, and theological propositions, which have grown up in the course of these cases, and which in various ways force a meaning and construction on the theological standards and language of the Church, which in some instances they were never thought to have, and which they certainly never had authoritatively before. Besides her Articles and Prayer-hook, speaking the language of divines and open to each party to interpret according to the strength and soundness of their theological ground, we are getting a supplementary set of legal limitations and glosses, claiming to regulate theological argument if not teaching, and imposed upon us by the authority not of the Church or even of Parliament but of the Judges of the Privy Council. This, it strikes us, is a new position of things in the Church, a new understanding and a changed set of conditions on which to carry on controversies of doctrine; and it seems to us to have a serious influence not only on the responsibility of the Church for her own doctrine, but on the freedom and genuineness with which questions as to that doctrine are discussed. The Court is not to blame for this result; to do it justice, it has generally sought to decide as little as it could; and the interference of law with the province of pure theology is to be rather attributed to that mania for deciding, which of late has taken possession pretty equally of all parties. But the indisputable result is seen to be, after the experience of fifteen years, that law is taking a place in our theological disputes and our theological system which is new to it in our theological history; law, not laid down prospectively in general provisions, but emerging indirectly and incidentally out of constructions and judicial rulings on cases of pressing and hazardous exigency; law, applying its technical and deliberately narrow processes to questions which of course it cannot solve, but can only throw into formal and inadequate, if not unreal, terms; and laying down the limits of belief and assertion on matters about which hearts burn and souls tremble, by the mouth of judges whose consummate calmness and ability is only equalled by their profound and avowed want of sympathy for the theology of which their position makes them the expounders and final arbiters. A system has begun with respect to English Church doctrine, analogous to that by which Lord Stowell made the recent law of the sea, or that by which on a larger scale the rescripts and decrees of the Popes moulded the great system of the canon law.
This is the first thing that strikes us on a comparative survey of this set of decisions. The second point is one which at first sight seems greatly to diminish the importance of this new condition of things, but which on further consideration is seen to have a more serious bearing than might have been thought. This is, the odd haphazard way in which points have come up for decision; the sort of apparent chance which has finally governed the issue of the various contentions; and the infinitesimally fine character of the few propositions of doctrine to which the Court has given the sanction of its ruling. Knowing what we all of us cannot help knowing, and seeing things which lawyers and judges are bound not to allow themselves to see or take account of, we find it difficult to repress the feeling of amazement, as we travel through the volume, to see Mr. Gorham let off, Mr. Heath deprived, then Dr. Williams and Mr. Wilson let off, and to notice the delicate technical point which brought to nought the laborious and at one time hopeful efforts of the worthy persons who tried to turn out Archdeacon Denison. And as to the matter of the decisions, though undoubtedly dicta of great importance are laid down in the course of them, yet it is curious to observe the extremely minute and insignificant statements on which in the more important cases judgment is actually pronounced. The Gorham case was held to affect the position of a great party; but the language and theory actually examined and allowed would hardly, in legal strictness, authorise much more than the very peculiar views of Mr. Gorham himself. And in the last case, the outside lay world has hardly yet done wondering at the consummate feat of legal subtlety by which the issue whether the English Church teaches that the Bible is inspired was transmuted into the question whether it teaches that every single part of every single book is inspired. It might seem that rulings, of which the actual product in the way of doctrinal propositions was so small, were hardly subjects for any keen interest. But it would be shortsighted to regard the matter in this way. In the first place, whatever may have happened as yet, it is manifestly a serious thing for Church of England doctrine to have been thrown, on a scale which is quite new, into the domain of a court of law, to lie at the mercy of the confessed chances and uncertainties of legal interpretation, with nothing really effective to correct and remedy what may possibly be, without any fault in the judges, a fatally mischievous construction of the text and letter of her authoritative documents. In the next place, no one can fail to see, no one in fact affects to deny, that the general result of these recent decisions, capricious as their conclusions look at first sight, has been to make the Formularies mean much less than they were supposed to mean. The tendency of every English court, appealed to not as a court of equity but one of criminal jurisdiction, is naturally to be exacting and even narrow in the interpretation of language. The general impression left by these cases is that the lines of doctrine in the English Church are regarded by the judicial mind as very faint, and not much to be depended upon; and that these judgments may be the first steps in that insensible process by which the unpretending but subtle and powerful engine of interpretation has been applied by the courts to give a certain turn to law and policy; applied, in this instance, to undermine the definiteness and certainty of doctrine, and in the end, the understanding itself which has hitherto existed between the Church and the State, and has kept alive the idea of her distinct basis, functions, and rights.
This is the view of matters which arises from an examination of the proceedings contained in this volume. What is the argument urged in the Historical Introduction to justify or recommend our acquiescence in it? It seems to us to consist mainly in a one-sided and exaggerated statement of the Supremacy claimed and brought in by Henry VIII., and of the effect in theory and fact which it ought to have on our notion of the Church and of Church right. The complaint of the present state of things is, that those who may be taken to represent the interests of the Church in such a matter as the character of her teaching are practically excluded from having any real influence in the decision of questions by which the character of that teaching is affected. The answer is that she has no right to claim a separate interest in the matter, and that the doctrine of the Royal Supremacy was meant to extinguish, and has extinguished, any pretence to such a claim. The animus which pervades the work, and which is not obscurely disclosed in such things as footnotes and abridgments of legal arguments, is thus given—more freely, of course, than it would be proper to introduce in a book like this—in some remarks of Mr. Brodrick, one of the editors, at a recent discussion of the question of Ecclesiastical Appeals in a committee of the Social Science Association. He is reported to have spoken as follows:—
The Church of England being established by law, could not be allowed any independence of action; and those who wished for it were like people who wanted to have their cake and eat it. As to the Privy Council, he had never heard its decisions charged with error. What was complained of was that it had declined to take the current opinions of theologians and make them part of the Thirty-nine Articles. There was no need whatever for the Privy Council to possess any special theological knowledge. The only case where that knowledge was necessary was when it was alleged that doctrines had been held in the Church without censure. That was a case in which considerable theological lore was required; but it was within the province of counsel to supply it. Divines had now discovered, what lawyers could have told them long ago, and what he knew some of them had been told—namely, that it would not do to treat the Thirty-nine Articles as penal statutes; because, if that were done, a coach might be easily driven through them. If they had wished to maintain the authority of the Articles, they would have done best to have kept quiet.
The present Court of Appeal is deduced, in the Historical Introduction, as a natural and logical consequence, from Henry VIII.'s Supremacy. Undoubtedly it is scarcely possible to overstate the all-grasping despotism of Henry VIII., and if a precedent for anything reckless of all separate rights and independence should be wanted, it would never be sought in vain if looked for in the policy and legislation of that reign. So far the editors are right; the power over religion claimed by Henry VIII. will carry them wherever they want to go; it will give them, if they need it, as a still more logical and legitimate development of the Supremacy, the Court of High Commission. Only they ought to have remembered, as fair historians, that even in the days of the Supremacy the distinct nature and business of the Church and of Churchmen was never denied. Laymen were given powers over the Church and in the Church which were new; but the distinct province of the Church, if abridged and put under new control, was not abolished. Side by side with the facts showing the Supremacy and its exercise are a set of facts, for those who choose to see them, showing that the Church was still recognised, even by Henry VIII., as a body which he had not created, which he was obliged to take account of, and which filled a place utterly different from every other body in the State. Henry VIII. played the tyrant with his Churchmen as he did with his Parliament and with everybody else; and Churchmen, like everybody else, submitted to him. But the "Imperialism" of Henry VIII., though it went beyond even the Imperialism of Justinian and Charlemagne in its encroachments on the spiritual power, as little denied the fact of that power as they did. He recognised the distinct place and claims of the spiritualty; and, as we suppose that even the editors of this volume hardly feel themselves bound to make out the consistency of Henry, they might have spared themselves the weak and not very fair attempt to get rid of the force of the remarkable words in which this recognition is recorded in the first Statute of Appeals (24 Henry VIII. c. 12). The words would, no doubt, be worth but little, were it not that as a matter of fact a spiritualty did act and judge and lay down doctrine, and even while yielding to unworthy influence did keep up their corporate existence.
But when the ecclesiastical legislation of Henry VIII. is referred to, not merely as the historical beginning of a certain state of things which has undergone great changes in the course of events, but as affording a sort of idea and normal pattern to which our own arrangements ought to conform, as supplying us with a theory of Church and State which holds good at least against the Church, it seems hard that the Church alone should not have the benefit of the entire alteration of circumstances since that theory was a reality. Those who talk about the Supremacy ought to remember what the Supremacy pretended to be. It was over all causes and all persons, civil as well as ecclesiastical. It held good certainly in theory, and to a great extent in practice, against the temporalty as much as against the spiritualty. Why then are we to invoke the Supremacy as then understood, in a question about courts of spiritual appeals, and not in questions about other courts and other powers in the nation? If the Supremacy, claimed and exercised as Henry claimed and exercised it, is good against the Church, it is good against many other things besides. If the Church inherits bonds and obligations, not merely by virtue of distinct statutes, but by the force of a general vague arbitrary theory of royal power, why has that power been expelled, or transformed into a mere fiction of law, in all other active branches of the national life? Unless the Church is simply, what even Henry VIII. did not regard it, a creation and delegate of the national power, without any roots and constitution of its own, why should the Church be denied the benefit of the common sense, and the change in ideas and usage, which have been so largely appealed to in civil matters? Why are we condemned to a theory which is not only out of date and out of harmony with all the traditions and convictions of modern times, hut which was in its own time tyrannous, revolutionary, and intolerable? Arguments in favour of the present Court, drawn from the reason of the thing, and the comparative fitness of the judges for their office, if we do not agree with them, at least we can understand. But precedents and arguments from the Supremacy of Henry VIII. suggest the question whether those who use them are ready to be taken at their word and to have back that Supremacy as it was; and whether the examples of policy of that reign are seemly to quote as adequate measures of the liberty and rights of any set of Englishmen.
The question really calling for solution is—How to reconcile the just freedom of individual teachers in the Church with the maintenance of the right and duty of the Church to uphold the substantial meaning of her body of doctrine? In answering this question we can get no help from this volume. It simply argues that the present is practically the best of all possible courts; that it is a great improvement, which probably it is, on the Courts of Delegates; and that great confidence ought to be felt in its decisions. We are further shown how jealously and carefully the judges have guarded the right of the individual teacher. But it seems to us, according to the views put forward in this book, that as the price of all this—of great learning, weight, and ability in the judges—of great care taken of liberty—the Church is condemned to an interpretation of the Royal Supremacy which floats between the old arbitrary view of it and the modern Liberal one, and which uses each, as it happens to be most convenient, against the claim of the Church to protect her doctrine and exert a real influence on the authoritative declaration of it. We all need liberty, and we all ought to be ready to give the reasonable liberty which we profess to claim for ourselves. But it is a heavy price to pay for it, if the right and the power is to be taken out of the hands of the Church to declare what is the real meaning of what she supposes herself bound to teach.
IV
SIR JOHN COLERIDGE ON THE PURCHAS CASE[5]
[5] Remarks on Some Parts of the Report of the Judicial Committee in the Case of "Elphinstone against Purchas." A Letter to Canon Liddon, from the Right Hon. Sir J.T. Coleridge. Guardian, 5th April 1871.
No one has more right to speak with authority, or more deserves to be listened to at a difficult and critical moment for the Church, than Sir J.T. Coleridge. An eminent lawyer, and a most earnest and well-informed Churchman, he combines in an unusual way claims on the attention of all who care for the interests of religion, and for those, too, which are so deeply connected with them, the interests of England. The troubles created by the recent judgment have induced him to come forward from his retirement with words of counsel and warning.
The gist of his Letter may be shortly stated. He is inclined to think the decision arrived at by the Judicial Committee a mistaken one. But he thinks that it would be a greater and a worse mistake to make this decision, wrong as it may be, a reason for looking favourably on disestablishment as a remedy for what is complained of. We are glad to note the judgment of so fair an observer and so distinguished a lawyer, himself a member of the Privy Council, both on the intrinsic suitableness and appropriateness of the position[6] which has been ruled to be illegal, and on the unsatisfactoriness of the interpretation itself, as a matter of judicial reading and construction. A great deal has been said, and it is plain that the topic is inexhaustible, on the unimportance of a position. We agree entirely—on condition that people remember the conditions and consequences of their assertion. Every single outward accompaniment of worship may, if you carry your assertion to its due level, be said to be in itself utterly unimportant; place and time and form and attitude are all things not belonging to the essence of the act itself, and are indefinitely changeable, as, in fact, the changes in them have been countless. Kneeling is not of the essence of prayer, but imagine, first prohibiting the posture of kneeling, and then remonstrating with those who complained of the prohibition, on the ground of postures being unimportant. It is obvious that when you have admitted to the full that a position is in itself unimportant, all kinds of reasons may come in on the further question whether it is right, fitting, natural. There are reasons why the position which has been so largely adopted of late is the natural and suitable one. Sir John Coleridge states them admirably:—
[6] The Eastward Position at the celebration of the Holy Communion.
As to the place of standing at the consecration, my feeling is with them. It seems to me not desirable to make it essential or even important that the people should see the breaking of the bread, or the taking the cup into the hands of the priest, and positively mischievous to encourage them in gazing on him, or watching him with critical eyes while so employed. I much prefer the spirit of the Rubric of 1549—First Book of Edward VI.—which says, "These words before rehearsed are to be said turning still to the Altar, without any elevation, or showing the Sacraments to the people." The use now enforced, I think, tends to deprive the most solemn rite of our religion of one of its most solemn particulars. Surely, whatever school we belong to, and even if we consider the whole rite merely commemorative, it is a very solemn idea to conceive the priest at the head of his flock, and, as it were, a shepherd leading them on in heart and spirit, imploring for them and with them the greatest blessing which man is capable of receiving on earth; he alone uttering the prayer—they meanwhile kneeling all, and in deep silence listening, not gazing, rather with closed eyes—and with their whole undistracted attention, joining in the prayer with one heart and without sound until the united "Amen" breaks from them at the close, and seals their union and assent.
But, of course, comes the further question, whether, an English clergyman is authorised to use it. He is not authorised if the Prayer Book tells him not to. Of that there is no question. But if the Prayer Book not only seems to give him the liberty, but, by the prima facie look of its words, seems to prescribe it, the harshness of a ruling which summarily and under penalties prohibits it is not to be smoothed down by saying that the matter is unimportant. Sir John Coleridge's view of the two points will be read with interest:—
You will understand, of course, that I write in respect of the Report recently made by the Judicial Committee in the Purchas case. I am not about to defend it. No one, however, ought to pronounce a condemnation of the solemn judgment of such a tribunal without much consideration; and this remark applies with, special force to myself, well knowing as I do those from whom it proceeded, and having withdrawn from sharing in the labours of the Committee only because age had impaired, with the strength of my body, the faculties also of my mind; and so disabled me from the proper discharge of any judicial duties. With this admission on my part, I yet venture to say that I think Mr. Purchas has not had justice done to him in two main points of the late appeal; I mean the use of the vestments complained of and the side of the communion-table which he faced when consecrating the elements for the Holy Communion. Before I state my reasons, let me premise that I am no Ritualist, in the now conventional use of the term. I do not presume to judge of the motives of those to whom that name is applied. From the information of common but undisputed report as to some of the most conspicuous, I believe them entitled to all praise for their pastoral devotedness and their laborious, self-denying lives; still, I do not shrink from saying that I think them misguided, and the cause of mischief in the Church. So much for my feeling in regard to the vestments. I prefer the surplice at all times and in all ministrations.
This is feeling—and I see no word in the sober language of our rubric which interferes with it—but my feeling is of no importance in the argument, and I mention it only in candour, to show in what spirit I approach the argument.
Now Mr. Purchas has been tried before the Committee for offences alleged to have been committed against the provisions of the "Act of Uniformity"; of this Act the Common Prayer Book is part and parcel. As to the vestments, his conduct was alleged to be in derogation of the rubric as to the ornaments of the Church and the ministers thereof, which ordains that such shall be retained and be in use as were in the Church of England by the authority of Parliament in the second year of the reign of King Edward VI. The Act of Uniformity is to be construed by the same rules exactly as any Act passed in the last session of Parliament. The clause in question (by which I mean the rubric in question) is perfectly unambiguous in language, free from all difficulty as to construction; it therefore lets in no argument as to intention otrier than that which the words themselves import. There might be a seeming difficulty in fact, because it might not be known what vestments were in use by authority of Parliament in the second year of the reign of King Edward VI.; but this difficulty has been removed. It is conceded in the Report that the vestments, the use of which is now condemned, were in use by authority of Parliament in that year. Having that fact, you are bound to construe the rubric as if those vestments were specifically named in it, instead of being only referred to. If an Act should be passed to-morrow that the uniform of the Guards should henceforth be such as was ordered for them by authority and used by them in the 1st George I., you would first ascertain what that uniform was; and, having ascertained it, you would not inquire into the changes which may have been made, many or few, with or without lawful authority, between the 1st George I. and the passing of the new Act. All these, that Act, specifying the earlier date, would have made wholly immaterial. It would have seemed strange, I suppose, if a commanding officer, disobeying the statute, had said in his defence, "There have been many changes since the reign of George I.; and as to 'retaining,' we put a gloss on that, and thought it might mean only retaining to the Queen's use; so we have put the uniforms safely in store." But I think it would have seemed more strange to punish and mulct him severely if he had obeyed the law and put no gloss on plain words.
This case stands on the same principle. The rubric indeed seems to me to imply with some clearness that in the long interval between Edward VI. and the 14th Charles II. there had been many changes; but it does not stay to specify them, or distinguish between what was mere evasion and what was lawful; it quietly passes them all by, and goes back to the legalised usage of the second year of Edward VI. What had prevailed since, whether by an Archbishop's gloss, by Commissions, or even Statutes, whether, in short, legal or illegal, it makes quite immaterial.
I forbear to go through the long inquiry which these last words remind one of—not, I am sure, out of any disrespectful feeling to the learned and reverend authors of the Report, but because it seems to me wholly irrelevant to the point for decision. This alone I must add, that even were the inquiry relevant, the authorities on which they rely do not appear to me so clear or cogent, nor the analogies relied on so just, as to warrant the conclusion arrived at. For it should never be forgotten that the defendant in a criminal case, acquitted as to this charge by the learned judge below, was entitled to every presumption in his favour, and could not properly be condemned but by a judgment free from all reasonable doubt. And this remark acquires additional strength because the judgment will be final not only on him but on the whole Church for all time, unless reversed by the Legislature.
On the second point he thus speaks, in terms which for their guarded moderation are all the more worth notice:—
Upon the second point I have less to say, though it is to me much the most important. The Report, I think, cannot be shown conclusively to be wrong here, as it may be on the other; still it does not seem to me to be shown conclusively to be right. You have yourself given no reason in your second letter of the 8th March for doubting at least.
Let me add that, in my opinion, on such a question as this, where a conclusion is to be arrived at upon the true meaning of Rubrics framed more than two centuries since, and certainly not with a view to any such minute criticism as on these occasions is and must be applied to them, and where the evidence of facts is by no means clear, none probably can be arrived at free from reasonable objection. What is the consequence? It will be asked, Is the question to receive no judicial solution? I am not afraid to answer, Better far that it should receive none than that injustice should be done. The principles of English law furnish the practical solution: dismiss the party charged, unless his conviction can be based on grounds on which reasonable and competent minds can rest satisfied and without scruple. And what mighty mischief will result to countervail the application of this rule of justice? For two centuries our Church has subsisted without an answer to the question which alone gives importance to this inquiry, and surely has not been without God's blessing for that time, in spite of all much more serious shortcomings. Let us remember that Charity, or to use perhaps a better word, Love, is the greatest of all; if that prevail there need be little fear for our Faith or our Hope.
Having said this much, Sir John Coleridge proceeds to the second, and indeed the main object of his letter—to remonstrate against exaggeration in complaint, both of the particular decision and of the Court which gave it:—
I now return to your letter. You proceed to attempt to show that the words of Keble to yourself, which you cite, are justified by remarks in this Report and some previous judgments of the same tribunal, which appear to you so inconsistent with each other as to make it difficult to believe that the Court was impartial, or "incapable of regarding the documents before it in the light of a plastic material, which might be made to support conclusions held to be advisable at the moment, and on independent grounds." I wish these words had never been written. They will, I fear, be understood as conveying your formed opinions; and coming from you, and addressed to minds already excited and embittered, they will be readily accepted, though they import the heaviest charges against judges—some of them bishops—all of high and hitherto unimpeached character. A very long experience of judicial life makes me know that judges will often provoke and bitterly disappoint both the suitors before them and the public, when discharging their duty honestly and carefully, and a man is scarcely fit for the station unless he can sit tolerably easy under censures which even these may pass upon him. Yet, imputations of partiality or corruption are somewhat hard to bear when they are made by persons of your station and character. When the Judicial Committee sits on appeals from the Spiritual Courts, it may certainly be under God's displeasure, the members may be visited with judicial blindness, and deprived of the integrity which in other times and cases they manifest. Against such a supposition there is no direct argument, and I will not enter into such a disputation. I have so much confidence in your generosity and candour, on reflection, as to believe you would not desire I should.
In the individual case I simply protest against the insinuation. I add a word or two by way of general observation.
No doubt you have read the judgments in all the cases you allude to carefully; but have you read the pleadings and arguments of the counsel, so as to know accurately the points raised for the consideration of those who were to decide? To know the offence charged and the judgment pronounced may suffice in some cases for an opinion by a competent person, whether the one warranted the other; but more is required to warrant the imputation of inconsistency, partiality, or indirect motives. He who takes this on himself should know further how the pleadings and the arguments presented the case for judgment, and made this or that particular relevant in the discussion. Every one at all familiar with this matter knows that a judgment not uncommonly fails to reflect the private opinion of the judge on the whole of a great point, because the issues of law or fact actually brought before him, and which alone he was bound to decide, did not bring this before him. And this rule, always binding, is, of course, never more so than in regard to a Court of Final Appeal, which should be careful not to conclude more than is regularly before it. Let me add that a just and considerate person will wholly disregard the gossip which flies about in regard to cases exciting much interest; passing words in the course of an argument, forgotten when the judgment comes to be considered, are too often caught up, as having guided the final determination.
Such words are a just rebuke to much of the inconsiderate talk which follows on any public act which touches the feelings, perhaps the highest and purest feelings of men with deep convictions. Perhaps Mr. Liddon's words were unguarded ones. But at the same time it is necessary to state without disguise what is the truth in this matter. It is necessary for the sake of justice and historical truth. The Court of Final Appeal is not like other courts. It is not a pure and simple court of law, though it is composed of great lawyers. It is doubtless a court where their high training and high professional honour come in, as they do elsewhere. But great lawyers are men, partisans and politicians, statesmen, if you like; and this is a court where they are not precluded, in the same degree as they are in the regular courts by the habits and prescriptions of the place, from thinking of what comes before them in its relation to public affairs. It is no mere invention of disappointed partisans, it is no idle charge of wilful unfairness, to say that considerations of high policy come into their deliberations; it has been the usual language, ever since the Gorham case, of men who cared little for the subject-matter of the questions debated; it is the language of those who urge the advantages of the Court. "It is a court," as the Bishop of Manchester said the other day, speaking in its praise, "composed of men who look at things not merely with the eyes of lawyers, but also with the eyes of statesmen." Precisely so; and for that reason they must be considered to have the responsibilities, not only of lawyers, but of statesmen, and their acts are proportionably open to discussion. Sir John Coleridge urges the impossibility of any other court; and certainly till we could be induced to trust an ecclesiastical court, composed of bishops or clergymen, in a higher degree than we could do at present, we see no alternative. But to say that a clerical court would be no improvement is not to prove that the present court is a satisfactory one. It may be difficult under our present circumstances to reform it. But though we may have reasons for making the best of it, we may be allowed to say that it is a singularly ill-imagined and ill-constructed court, and one in which the great features of English law and justice are not so conspicuous as they are elsewhere. Suitors do not complain in other courts either of the ruling, or sometimes of the language of judges, as they complain in this. But when this is made a ground for joining with the enemies of all that the English Church holds dear, to bring about a great break-up of the existing state of things, we agree with Sir John Coleridge in thinking that a great mistake is made; and if care is not taken, it may be an irreparable one. He writes:—
I hasten to my conclusion too long delayed, but a word must still be added on a subject of not less consequence than any I have yet touched on. You say, "Churchmen will to a very great extent indeed find relief from the dilemma in a third course, viz. co-operation with the political forces, which, year by year, more and more steadily are working towards disestablishment. This is not a menace; it is the statement of a simple fact." I am bound to believe, and I do believe, you do not intend this as a menace; but such a statement of a future course to depend on a contingency cannot but read very much like one—and against your intention it may well be understood as such. You do not say that you are one who will co-operate with the political party which now seeks to disestablish the Church in accomplishing its purpose, and I do not suppose you ever will. But on behalf, not so much of the clergy as of the laity—on behalf of the worshippers in our churches, of the sick to be visited at home—of the poor in their cottages, of our children in their schools—of our society in general, I entreat those of the clergy who are now feeling the most acutely in this matter, not to suffer their minds to be so absorbed by the present grievance as to take no thought of the evils of disestablishment. I am not foolishly blind to the faults of the clergy—indeed I fear I am sometimes censorious in regard to them—and some of their faults I do think may be referable to Establishment; the possession of house and land, and a sort of independence of their parishioners, in some cases seems to tend to secularity. I regret sometimes their partisanship at elections, their speeches at public dinners. But what good gift of God is not liable to abuse from men? Taken as a whole, we have owed, and we do owe, under Him, to our Established clergy more than we can ever repay, much of it rendered possible by their Establishment. I may refer, and now with special force, to Education—their services in this respect no one denies—and but for Establishment these, I think, could not have been so effectively and systematically rendered. We are now in a great crisis as to this all-important matter. Concurring, as I do heartily, in the praise which has been bestowed on Mr. Forster, and expecting that his great and arduous office will be discharged with perfect impartiality by him, and with a just sense of how much is due to the clergy in this respect, still it cannot be denied that the powers conferred by the Legislature on the holder of it are alarmingly great, even if necessary; and who shall say in what a spirit they may be exercised by his successor? For the general upholding of religious education, in emergencies not improbable, to whom can we look in general so confidently as to the parochial clergy? I speak now specially in regard to parishes such as I am most familiar with, in agricultural districts, small, not largely endowed, sometimes without resident gentry, and with the land occupied by rack-renting farmers, indifferent or hostile to education.
In what Sir John Coleridge urges against the fatal step of welcoming disestablishment under an impatient sense of injustice we need not say that we concur most earnestly. But it cannot be too seriously considered by those who see the mischief of disestablishment, that as Sir John Coleridge also says, the English Churrh is, in one sense, a divided one; and that to pursue a policy of humiliating and crippling one of its great parties must at last bring mischief. The position of the High Church party is a remarkable one. It has had more against it than its rivals; yet it is probably the strongest of them all. It is said, probably with reason, to be the unpopular party. It has been the stock object of abuse and sarcasm with a large portion of the press. It has been equally obnoxious to Radical small shopkeepers and "true blue" farmers and their squires. It has been mobbed in churches and censured in Parliament. Things have gone against it, almost uniformly, before the tribunals. And unfortunately it cannot be said that it has been without its full share of folly and extravagance in some of its members. And yet it is the party which has grown; which has drawn some of its antagonists to itself, and has reacted on the ideas and habits of others; its members have gradually, as a matter of course, risen into important post and power. And it is to be noticed that, as a party, it has been the most tolerant. All parties are in their nature intolerant; none more so, where critical points arise, than Liberal ones. But in spite of the Dean of Westminster's surprise at High Churchmen claiming to be tolerant, we still think that, in the first place, they are really much less inclined to meddle with their neighbours than others of equally strong and deep convictions; and further, that they have become so more and more; and they have accepted the lessons of their experience; they have thrown off, more than any strong religious body, the intolerance which was natural to everybody once, and have learned, better than they did at one time, to bear with what they dislike and condemn. If a party like this comes to feel itself dealt with harshly and unfairly, sacrificed to popular clamour or the animosity of inveterate and unscrupulous opponents, it is certain that we shall be in great danger.
V
MR. GLADSTONE'S LETTER ON THE ENGLISH CHURCH[7]
[7] Guardian, 29th October 1884.
Mr. Gladstone's Letter, read at the St. Asaph Diocesan Conference, will not have surprised those who have borne in mind his deep and unintermitted interest in the fortunes and prospects of the Church, and his habit of seeking relief from the pressure of one set of thoughts and anxieties by giving full play to his mental energies in another direction. Its composition and appearance at this moment are quite accounted for; it is a contribution to the business of the conference of his own diocese, and it was promised long before an autumn session on a great question between the two Houses was in view. Still the appearance of such a document from a person in Mr. Gladstone's position must, of course, invite attention and speculation. He may put aside the questions which the word "Disestablishment"—which was in the thesis given him to write upon—is likely to provoke—"Will it come? ought it to come? must it come? Is it near, or somewhat distant, or indefinitely remote?" On these questions he has not a word to say. But, all the same, people will naturally try to read between the lines, and to find out what was in the writer's thoughts about these questions. We cannot, however, see that there is anything to be gathered from the Letter as to the political aspect of the matter; he simply confines himself to the obvious lesson which passing events sufficiently bring with them, that whatever may come it is our business to be prepared. |
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