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By the late
Sometime Rector of Whatley, Dean of St. Paul's,
Honorary Fellow of Oriel College

In Two Vols.--VOL. II

Macmillan and Co., Limited
New York: The Macmillan Company


_First Edition February_ 1897
_Reprinted April_ 1897




































_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

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

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]

_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

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

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

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

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.



_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.



_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.



_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

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

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.



_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.

His anxieties are characteristic. The paper shows, we think, that it
has not escaped him that disestablishment, however compensated as some
sanguine people hope, would be a great disaster and ruin. It would be
the failure and waste to the country of noble and astonishing efforts;
it would be the break-up and collapse of a great and cheap system, by
which light and human kindliness and intelligence are carried to vast
tracts, that without its presence must soon become as stagnant and
hopeless as many of the rural _communes_ of France; the blow would at
the moment cripple and disorganise the Church for its work even in the
towns. But though "happily improbable," it may come; and in such a
contingency, what occupies Mr. Gladstone's thoughts is, not the
question whether it would be disastrous, but whether it would be
disgraceful. That is the point which disturbs and distresses him--the
possibility that the end of our later Church history, the end of that
wonderful experiment which has been going on from the sixteenth
century, with such great vicissitudes, but after every shock with
increasing improvement and hope, should at last be not only failure,
but failure with dishonour; and this, he says, could only come in one
of two ways. It might come from the Church having sunk into sloth and
death, without faith, without conscience, without love. This, if it
ever was really to be feared, is not the danger before us now.
Activity, conviction, energy, self-devotion, these, and not apathetic
lethargy, mark the temper of our times; and they are as conspicuous in
the Church as anywhere else. But these qualities, as we have had ample
experience, may develop into fierce and angry conflicts. It is our
internal quarrels, Mr. Gladstone thinks, that create the most serious
risk of disestablishment; and it is only our quarrels, which we have
not good sense and charity enough to moderate and keep within bounds,
which would make it "disgraceful."

The main feature of the Letter is the historical retrospect which Mr.
Gladstone gives of the long history, the long travail of the later
English Church. Hardly in its first start, under the Tudors, but more
and more as time went on, it instinctively, as it were, tried the great
and difficult problem of Christian liberty. The Churches of the
Continent, Roman and anti-Roman, were simple in their systems; only one
sharply defined theology, only the disciples and representatives of one
set of religious tendencies, would they allow to dwell within their
borders; what was refractory and refused to harmonise was at once cast
out; and for a certain time they were unvexed with internal
dissensions. This, both in the case of the Roman, the Lutheran, and the
Calvinistic Churches of the Continent, requires to be somewhat
qualified; still, as compared with the rival schools of the English
Church, Puritan and Anglican, the contrast is a true and a sharp one.
Mr. Gladstone adopts from a German writer a view which is certainly not
new to many in England, that "the Reformation, as a religious movement,
took its shape in England, not in the sixteenth century but in the
seventeenth." "It seems plain," he says, "that the great bulk of those
burned under Mary were Puritans"; and he adds, what is not perhaps so
capable of proof, that "under Elizabeth we have to look, with rare
exceptions, among the Puritans and Recusants for an active and
religious life." It was not till the Restoration, it was not till
Puritanism had shown all its intolerance, all its narrowness, and all
its helplessness, that the Church was able to settle the real basis and
the chief lines of its reformed constitution. It is not, as Mr.
Gladstone says, "a heroic history"; there is room enough in the
looseness of some of its arrangements, and the incompleteness of
others, for diversity of opinion and for polemical criticism. But the
result, in fact, of this liberty and this incompleteness has been, not
that the Church has declined lower and lower into indifference and
negation, but that it has steadily mounted in successive periods to a
higher level of purpose, to a higher standard of life and thought, of
faith and work. Account for it as we may, with all drawbacks, with
great intervals of seeming torpor, with much to be regretted and to be
ashamed of, that is literally the history of the English Church since
the Restoration settlement. It is not "heroic," but there are no Church
annals of the same time more so, and there are none fuller of hope.

But every system has its natural and specific danger, and the specific
English danger, as it is the condition of vigorous English life, is
that spirit of liberty which allows and attempts to combine very
divergent tendencies of opinion. "The Church of England," Mr. Gladstone
thinks, "has been peculiarly liable, on the one side and on the other,
both to attack and to defection, and the probable cause is to be found
in the degree in which, whether for worldly or for religious reasons,
it was attempted in her case to combine divergent elements within her
borders." She is still, as he says, "working out her system by
experience"; and the exclusion of bitterness--even, as he says, of
"savagery"--from her debates and controversies is hardly yet
accomplished. There is at present, indeed, a remarkable lull, a "truce
of God," which, it may be hoped, is of good omen; but we dare not be
too sure that it is going to be permanent. In the meantime, those who
tremble lest disestablishment should be the signal of a great break up
and separation of her different parties cannot do better than meditate
on Mr. Gladstone's very solemn words:--

The great maxim, _in omnibus caritas_, which is so necessary to
temper all religious controversy, ought to apply with a tenfold
force to the conduct of the members of the Church of England. In
respect to differences among themselves they ought, of course, in
the first place to remember that their right to differ is limited
by the laws of the system to which they belong; but within that
limit should they not also, each of them, recollect that his
antagonist has something to say; that the Reformation and the
counter-Reformation tendencies were, in the order of Providence,
placed here in a closer juxtaposition than anywhere else in the
Christian world; that a course of destiny so peculiar appears to
indicate on the part of the Supreme Orderer a peculiar purpose,
that not only no religious but no considerate or prudent man
should run the risk of interfering with such a purpose; that the
great charity which is a bounden duty everywhere in these matters
should here be accompanied and upheld by two ever-striving
handmaidens, a great Reverence and a great Patience.

This is true, and of deep moment to those who guide and influence
thought and feeling in the Church. But further, those in whose hands
the "Supreme Orderer" has placed the springs and the restraints of
political movement and of change, if they recognise at all this view of
the English Church, ought to feel one duty paramount in regard to it.
Never was the Church, they tell us, more active and more hopeful; well
then, what politicians who care for her have to see to is that she
shall have _time_ to work out effectually the tendencies which are
visible in her now more than at any period of her history--that
combination which Mr. Gladstone wishes for, of the deepest individual
faith and energy, with forbearance and conciliation and the desire for
peace. She has a right to claim from English rulers that she should
have time to let these things work and bear fruit; if she has lost time
before, she never was so manifestly in earnest in trying to make up for
it as now. It is not talking, but working together, which brings
different minds and tempers to understand one another's divergences;
and it is this disposition to work together which shows itself and is
growing now. But it needs time. What the Church has a right to ask from
the arbiters of her temporal and political position in the country, if
that is ultimately and inevitably to be changed, is that nothing
precipitate, nothing impatient, should be done; that she should have
time adequately to develop and fulfil what she now alone among
Christian communities seems in a position to attempt.



_Guardian_, 14th October 1885.

This generation has seen no such momentous change as that which has
suddenly appeared to be at our very doors, and which people speak of as
disestablishment. The word was only invented a few years ago, and was
sneered at as a barbarism, worthy of the unpractical folly which it was
coined to express. It has been bandied about a good deal lately,
sometimes _de coeur leger_; and within the last six months it has
assumed the substance and the weight of a formidable probability. Other
changes, more or less serious, are awaiting us in the approaching
future; but they are encompassed with many uncertainties, and all
forecasts of their working are necessarily very doubtful. About this
there is an almost brutal clearness and simplicity, as to what it
means, as to what is intended by those who have pushed it into
prominence, and as to what will follow from their having their way.

Disestablishment has really come to mean, in the mouth of friends and
foes, simple disendowment. It is well that the question should be set
in its true terms, without being confused with vague and less important
issues. It is not very easy to say what disestablishment by itself
would involve, except the disappearance of Bishops from the Upper
House, or the presence of other religious dignitaries, with equal rank
and rights, alongside of them. Questions of patronage and
ecclesiastical law might be difficult to settle; but otherwise a
statute of mere disestablishment, not easy indeed to formulate, would
leave the Church in the eyes of the country very much what it found it.
Perhaps "My lord" might be more widely dropped in addressing Bishops;
but otherwise, the aspect of the Church, its daily work, its
organisations, would remain the same, and it would depend on the Church
itself whether the consideration paid to it continues what it has been;
whether it shall be diminished or increased. The privilege of being
publicly recognised with special marks of honour by the State has been
dearly paid for by the claim which the State has always, and sometimes
unscrupulously, insisted on, of making the true interests of the Church
subservient to its own passing necessities.

But there is no haziness about the meaning of disendowment. Property is
a tangible thing, and is subject to the four rules of arithmetic, and
ultimately to the force of the strong arm. When you talk of
disendowment, you talk of taking from the Church, not honour or
privilege or influence, but visible things, to be measured and counted
and pointed to, which now belong to it and which you want to belong to
some one else. They belong to individuals because the individuals
belong to a great body. There are, of course, many people who do not
believe that such a body exists; or that if it does, it has been called
into being and exists simply by the act of the State, like the army,
and, like the army, liable to be disbanded by its master. But that is a
view resting on a philosophical theory of a purely subjective
character; it is as little the historical or legal view as it is the
theological view. We have not yet lost our right in the nineteenth
century to think of the Church of England as a continuous, historic,
religious society, bound by ties which, however strained, are still
unbroken with that vast Christendom from which as a matter of fact it
sprung, and still, in spite of all differences, external and internal,
and by force of its traditions and institutions, as truly one body as
anything can be on earth. To this Church, this body, by right which at
present is absolutely unquestionable, property belongs; property has
been given from time immemorial down to yesterday. This property, in
its bulk, with whatever abatements and allowances, it is intended to
take from the Church. This is disendowment, and this is what is before

It is well to realise as well as we can what is inevitably involved in
this vast and, in modern England, unexampled change, which we are
sometimes invited to view with philosophic calmness or resignation, as
the unavoidable drift of the current of modern thought, or still more
cheerfully to welcome, as the beginning of a new era in the prosperity
and strength of the Church as a religious institution. We are entreated
to be of good cheer. The Church will be more free; it will no longer be
mixed up with sordid money matters and unpopular payments; it will no
longer have the discredit of State control; the rights of the laity
will come up and a blow will be struck at clericalism. With all our
machinery shattered and ruined we shall be thrown more on individual
energy and spontaneous originality of effort. Our new poverty will spur
us into zeal. Above all, the Church will be delivered from the
temptation, incident to wealth, of sticking to abuses for the sake of
gold; of shrinking from principle and justice and enthusiasm, out of
fear of worldly loss. It will no longer be a place for drones and
hirelings. It is very kind of the revolutionists to wish all this good
to the Church, though if the Church is so bad as to need all these good
wishes for its improvement, it would be more consistent, and perhaps
less cynical, to wish it ruined altogether. Yet even if the Church were
likely to thrive better on no bread, there are reasons of public
morality why it should not be robbed. But these prophecies and
forecasts really belong to a sphere far removed from the mental
activity of those who so easily indulge in them. These excellent
persons are hardly fitted by habit and feeling to be judges of the
probable course of Divine Providence, or the development of new
religious energies and spiritual tendencies in a suddenly impoverished
body. What they can foresee, and what we can foresee also is, that
these _tabulae novae_ will be a great blow to the Church. They mean
that, and that we understand.

It is idle to talk as if it was to be no blow to the Church. The
confiscation of Wesleyan and Roman Catholic Church property would be a
real blow to Wesleyan or Roman Catholic interests; and in proportion as
the body is greater the effects of the blow must be heavier and more
signal. It is trifling with our patience to pretend to persuade us that
such a confiscation scheme as is now recommended to the country would
not throw the whole work of the Church into confusion and disaster, not
perhaps irreparable, but certainly for the time overwhelming and
perilous. People speak sometimes as if such a huge transfer of property
was to be done with the stroke of a pen and the aid of a few office
clerks; they forget what are the incidents of an institution which has
lasted in England for more than a thousand years, and whose business
extends to every aspect and degree of our very complex society from the
highest to the lowest. Resources may be replaced, but for the time they
must be crippled. Life may be rearranged for the new circumstances, but
in the meanwhile all the ordinary assumptions have to be changed, all
the ordinary channels of activity are stopped up or diverted.

And why should this vast and far-reaching change be made? Is it
unlawful for the Church to hold property? Other religious organisations
hold it, and even the Salvation Army knows the importance of funds for
its work. Is it State property which the State may resume for other
uses? If anything is certain it is that the State, except in an
inconsiderable degree, did not endow the Church, but consented in the
most solemn way to its being endowed by the gifts of private donors, as
it now consents to the endowment in this way of other religious bodies.
Does the bigness of the property entitle the State to claim it? This is
a formidable doctrine for other religious bodies, as they increase in
influence and numbers. Is it vexatious that the Church should be richer
and more powerful than the sects? It is not the fault of the Church
that it is the largest and the most ancient body in England. There is
but one real and adequate reason: it is the wish to disable and
paralyse a great religious corporation, the largest and most powerful
representative of Christianity in our English society, to exhibit it to
the nation after centuries of existence at length defeated and humbled
by the new masters' power, to deprive it of the organisation and the
resources which it is using daily with increasing effect for impressing
religious truth on the people, for winning their interest, their
confidence, and their sympathy, for obtaining a hold on the generations
which are coming. The Liberation Society might go on for years
repeating their dreary catalogue of grievances and misstatements.
Doubtless there is much for which they desire to punish the Church;
doubtless, too, there are men among them who are persuaded that they
would serve religion by discrediting and impoverishing the Church. But
they are not the people with whom the Church has to reckon. The
Liberationists might have long asked in vain for their pet
"emancipation" scheme. They are stronger men than the Liberationists
who are going in now for disendowment. They are men--we do them no
wrong--who sincerely think Christianity mischievous, and who see in the
power and resources of the Church a bulwark and representative of all
religion which it is of the first importance to get rid of.

This is the one adequate and consistent reason for the confiscation of
the property of the Church. There is no other reason that will bear
discussion to be given for what, without it, is a great moral and
political wrong. In such a settled society as ours, where men reckon on
what is their own, such a sweeping and wholesale transfer of property
cannot be justified, on a mere balance of probable expediency in the
use of it. Unless it is as a punishment for gross neglect and abuse, as
was alleged in the partial confiscations of the sixteenth century, or
unless it is called for as a step to break down what can no longer be
tolerated, like slavery, there is no other name for it, in the estimate
of justice, than that of a deep and irreparable wrong. This is
certainly not the time to punish the Church when it never was more
improving and more unsparing of sacrifice and effort. But it may be
full time to stop a career which may render success more difficult for
schemes ahead, which make no secret of their intention to dispense with
religion. This, however, is not what most Englishmen wish, whether
Liberals or Conservatives, or even Nonconformists; and without this end
there is no more justice in disendowing a great religious corporation
like the Church, than in disendowing the Duke of Bedford or the Duke of
Westminster. Of course no one can deny the competence of Parliament to
do either one or the other; but power does not necessarily carry with
it justice, and justice means that while there are great and small,
rich and poor, the State should equally protect all its members and all
its classes, however different. Revolutions have no law; but a great
wrong, deliberately inflicted in times of settled order, is more
mischievous to the nation than even to those who suffer from it.
History has shown us what follows from such gratuitous and wanton wrong
in the bitter feeling of defeat and humiliation lasting through
generations. But worse than this is the effect on the political
morality of the nation; the corrupting and fatal consciousness of
having once broken through the restraints of recognised justice, of
having acquiesced in a tempting but high-handed wrong. The effects of
disendowment concern England and its morality even more deeply than
they do the Church.



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