Chapter XXXII: Lord Blachford (1)

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 Fénelon 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.