“THE question must be decided,” says the Court, (Judgment, p. 9,) “by the
articles and liturgy, and we must apply to the construction of those
books the same rules which have long been established, and are by law
applicable to the construction of all written instruments. We must by no
means intentionally swerve from the old established rules of
construction, or depart from the principles which have received the
sanction and approbation of the most learned persons in time past, as
being on the whole, the best calculated to determine the true meaning of
the documents to be examined.” It may be worth while, in reference to
their treatment, especially of the office for private baptism, to append
here a few words of the rule of construction as laid down by Blackstone.
“The construction shall be upon the _entire deed_, and not merely upon
disjointed parts of it, so that _every part_, if possible, shall _take
effect_, and _no word but what may operate in one shape or another_.”
(Comm. ii. 379.) It is manifest there was _no impossibility_, nay, _no
difficulty_, in such a construction of the office for private baptism as
should allow “_every part_” to “_take effect_;” such also that there
might be “_no word but what should operate_,” so far as merely making
that service agree with the other; the only difficulty was to give every
word its effect, _if both were to lead to a particular conclusion_.
E. p. 46.
ON a matter of so grave a character as that referred to in this place it
seems necessary to give at rather more length that part of Lord Denman’s
judgment (in the case of Dr. Hampden in the Queen’s Bench) delivered on
the 1st of February, 1848, which states his reasons for refusing to let
the writ issue, when two of the judges of his court were in favour of
doing so.
“Now comes the question which presses most on my mind. Having stated
my reasons for the opinion which I deliberately form, and
conscientiously entertain that this has never been at any time the
law in the Church of England, I must be of opinion that the court
ought to refuse the writ of mandamus; but upon that opinion I have
had the greatest difficulty, and have felt the greatest possible
hesitation in acting, because I feel the authority of my two learned
brothers, and the ungracious appearance of refusing the opportunity
of inquiry. In any ordinary set of circumstances, in the case of an
inclosure, of a railway, or matter of property, we should have no
question what ever that the doubt of any one on the bench would have
made further inquiry desirable. I should have instantly agreed. A
writ of error would lie in that case to correct any opinion that
might be shown on more discussion to be erroneous. But every judge
must act on his own conviction. I own that my opinion is so entirely
settled, and, I must say, so entirely unchanged by what I have heard
of the argument to-day, that feeling the utmost disposition to do all
that can be done to show my respect for my learned brothers, I do not
think that I can consent to say for my part that this writ ought to
go. I think it ought not. * * * * * I am satisfied that the only
effect would be to keep alive the dreadful agitation and frightful
state of religious, or rather, let me say, theological animosity,
which it is impossible not to observe in this country. There would
be a delay of at least two years; probably four more days would be
consumed in argument, and we cannot tell how much more when it would
come into the court of error. The bishopric all that time would be
vacant, perhaps other vacancies might occur, and no doubt the example
here set would be followed; and in every case I should expect, in the
excited state of men’s minds, that the archbishop would be called
upon to summon all mankind, to hear whether they had anything to say
against the bishop elect, and to open a court, that would probably
never be closed.”
* * * * *
“Now, under all these considerations, feeling the utmost respect for
my learned brethren, and the greatest regret that we do not take the
same view, I must own that I feel some deference is due also to the
high person who is named as the defendant in this rule. Some
deference is due to those who certify the fitness of Bishop Hampden
for the office to which he is elected. Still more deference is due
_to the peace of the Church_, and _to the tranquillity of the State_.
It seems to me that we should be _putting every thing to hazard_ and
_leading to consequences which it is impossible to foresee_, if we,
who are firmly convinced that there is no such law as that upon which
these parties seek to act, encouraged the smallest doubt as to its
existence. Reserving my opinion on that point till I had heard all
the observations of my learned brothers, and keeping my mind open to
the last, and free to say that this is a question which ought to be
discussed, I must fairly say, with all respect for my brother
Coleridge’s admirable argument, that it has confirmed me in the
opinion of the danger of exposing the Act of Parliament, and the most
simple construction of the plainest language, and the most inveterate
and universal opinion on its effect, to the speculations of those who
will bring their forgotten books down, and wipe off the cobwebs from
decretals and canons, before they can find one argument for
disturbing the settled practice of three hundred years.
“In my opinion this rule ought to be discharged.”—_Rule discharged_.
_Lord Denman’s Judgment in the Hampden case_. _Report_, _by R.
Jebb_, _Esq._ pp. 495, 496.
I have no doubt at all, that the honest conviction of the Lord Chief
Justice was, that his view of the law was the sound one; nor any, that he
thought he was doing rightly in using his power to refuse the writ; but
there can be no doubt on the other hand (for he explicitly avows it) that
the reasons upon which he arrived at such conclusion, and reversed the
universal practice not only of his own court but of every court in
Westminster Hall, were a _calculation of consequences_, and a regard to
_future contingencies_, _as they seemed dangerous or advantageous_ to his
eye: and this is precisely the point of view in which I have desired to
lay the matter before my readers in the body of my letter. It will be
observed that in nothing which I have here said am I impugning Lord
Denman’s Law, or giving any opinion as to the soundness of his view of
the matter then in question before the Court of Queen’s Bench. I appeal
not to any matter of opinion, but to matter of fact; to the incontestible
fact, that all the precedents of that and every other court of law in
this country for a very long period, were set aside by his Lordship on
that occasion. I give no opinion at all, save that to do such a thing
upon a ground of expediency, applying, as it appeared to him, to the
individual case, was a course calculated to shake persons’ confidence in
the administration of the law in cases where the Church is affected. Let
no man therefore say, “What are you, to set up your opinion against the
Chief Justice of the Queen’s Bench?” I say, again, I set up no opinion,
I appeal to no matter of opinion at all, but to the undisputed matter of
fact, that the usage of the court _was_ at any rate so set aside and set
at naught.
F. p. 48.
I CANNOT refrain from quoting here a few lines from the very able speech
of the Chairman of the Meeting of July 23, so singularly apposite and
illustrative do they seem to me of this passage in my letter written some
time previously.
“An instinctive reverence for the law, and a well-founded confidence
in the judges of our land exclude from the minds of some men even the
thought of questioning the propriety of this judgment”—(i.e. of the
Committee of Privy Council). “It is painful to shock this natural
sentiment—but when such grave interests are at stake, we must not
allow them to escape the responsibility to which they are
summoned.”—_Speech of J. G. Hubbard_, _Esq. at St. Martin’s Hall_,
_July_ 23, 1850.
G. p. 71.
I AM aware it may be said this act (1 Elizabeth, c. 1) was repealed when
the High Commission Court was abolished; but it has been held, I believe
by Lord Coke (I know I have lately seen it referred to, though I have not
marked the reference,) that though no longer binding as law, it would be
accounted probably of some authority to show the mind in which law would
deal with heresy, and as a guide to a judge in any such matter. Add to
which, this law indicating what was, _at any rate_, and _at the least_,
to be adjudged heresy was restrictive, not augmentative of the offence.
Even so, as we see, it allowed the authority of those first four general
councils, and therefore by its enactment is a special witness for their
reception by the English law. And its repeal by no means destroys the
force of this argument in their favour, because the law itself having
been, as I have said, restrictive, and no other act being passed upon its
repeal to limit again the judgment of the courts, they would revert at
once to the former rule, and the Church gain instead of losing by the
proceeding. In other words, the statute (1 Eliz. c. 1) shows what at all
events the law, when most bent upon restriction, acknowledged as to those
general councils, whilst its repeal only removes a limitation, and
restores things again to their ancient footing. This is well stated in
the following extract:—
“Our church law acknowledges many other heresies besides those which
were condemned by the four first œcumenical councils. The clause in
1 Eliz. c. 1, which I quoted as the least stringent measure of heresy
ever allowed among us, was repealed when the court which was
restrained by it (the High Commission Court) was abolished; and now,
whatever was heresy before the reformation is still heresy, (by 25
Hen. 8, c. 19, s. 7,) unless there have been special enactment to the
contrary. Now there can be no question that the African canons were
in force here before the reformation; for, whether received at
Chalcedon or no, they had been severally received by the whole
Church, both east and west. Therefore it still remains to be proved,
‘that a bishop or archbishop, acting on the late decision, will not
involve in direct heresy both himself and eventually all in communion
with him,’ by the very law of the Church as at present
existing.”—_Letter_, _J. K. Guardian_, _May_ 1_st._ 1850.
H. p. 128.
I WILL venture to print in this place, as illustrative of several points
touched upon in the preceding letter, and as showing that many of the
views there set forth have not been of recent growth, or merely taken up
as the readiest expedients to suit an emergency, part of a sermon
preached (in my turn, as Master of Arts) before the University of Oxford.
The sermon was preached upon St. Barnabas’ day, 1845. The early part, of
which I do not here print more than a few sentences, was occupied with
some considerations relating more immediately to the particular festival,
and to the thoughts suggested as to conduct under ministerial
discouragements by the “sharp contention” between Barnabas and Paul. The
latter part is taken up more directly with general topics, as to our own
difficulties and trials, and with some mention of the hope of a remedy by
means of a general council. These few remarks will sufficiently
introduce the extract which follows.
“Ye have need of patience.”
_Hebrews_ x. 36, former part.
PATIENCE would be unnecessary if there were no trial: consolation
would be out of place if there were no affliction. Without these,
“the son of consolation” would not have found his office, nor
received his distinctive name, in being added to the number of the
apostles. But He who knew that he came, “not to send peace, but a
sword;” whose advent was marked with blood, and his very birth,
though it were “glad tidings of great joy which should be to all
people,” yet gave occasion for the voice of “lamentation, and
weeping, and great mourning;” whose own end was even of a piece with
this beginning, when He had “blood sprinkled upon his garments,” and
all his “raiment stained” therewith; the intermediate time, too, of
whose mortal life was one of such hardship and privation that He had
“not where to lay his head;” He who foretold that if men called “the
Master of the house Beelzebub, much more would they so call them of
the household;” who _warned_ his disciples that they should be “_as_
their Master,” and _promised_ them that they should indeed “drink of
his cup, and be baptized with his baptism;” HE did not fail to supply
grace and consolation; a fitting and sufficient Paraclete for the
nature which was thus to be tried, and the circumstances which should
try it. And though, in the only full and perfect sense, the HOLY
GHOST is _the_ COMFORTER, and that divine PARACLETE; yet also in a
true, though inferior sense, as an instrument to the same end, such
as the ever-blessed Son of God saw to be needed, it was appointed
there should be one, even called by the same name, “a son of
consolation,” in that Joses, surnamed by the Apostles, Barnabas. * *
* * *
But here I would extend our subject, and come more particularly to
consider some of the trials and discouragements which we (weak and
unworthy followers of the holy apostles) meet with in our ministry.
“Ye have need of patience,” says the apostle. Let me then speak
to-day, brethren, upon some of those trials and discouragements which
beset the Church “in these last days when perilous times have come.”
It is far too wide and large a subject to be fully treated of. I
shall but touch on one or two points as I have found their pressure,
and in so doing shall speak familiarly of the parochial charge.
Now we know well that a distinctive character of the Church’s
teaching is this, that she instructs her members that God’s grace,
and therefore salvation, is not given (as we may say) at random, and
by a mere inner motion of each man’s heart or mind; that our grafting
into Christ, and our growth in Christian stature and grace (I mean,
of course, according to God’s ordinary mode of dealing with us, which
is what only we have practically to consider;) that these blessings
are not given according to a mere inner motion of each man’s heart or
mind, but that (of God’s will and commandment, and for our good) they
are, I say, in ordinary rule, linked and tied to ordinances: to a
certain method of bestowal, and a certain method of reception; to his
Church, and to the ministry of his word and sacraments. In other
words, he saves us, not after a manner of each man’s own heart’s
devising, _but by covenant_. If we would have his promises and his
grace, we must seek them in the way of, and according to the terms of
that covenant. So it is, we must teach; “Except any one be born of
water and of the Spirit, he cannot enter into the kingdom of God.”
By the terms of the covenant: no promise of salvation to the
unbaptized! Again: “Except ye eat the flesh of the Son of Man, and
drink his blood, ye have no life in you.” No promise of salvation to
the non-communicant! Again: “Whosesoever sins ye remit, they are
remitted unto them; and whosesoever sins ye retain, they are
retained;” and, “He that despiseth you, despiseth me, and he that
despiseth me, despiseth him that sent me.” No warrant, then, to any
one to think he has a share in the gospel covenant, if he despise
God’s ministry, and forsake his Church. Without these, _where_ are
the valid sacraments? Without these, _where_ are the channels of
saving grace? Without these, _where_ are the sure promises of the
covenant? Alas! for the hardness of heart and unbelief of this our
day, and this our country! Are such indeed God’s ways? are such his
words? are such his works? (Yea, “He worketh, and no man
regardeth.”) But is it not written (let us fear, lest it be for
_us_), “Behold, ye despisers, and wonder, and perish: for I work a
work in your days, a work which ye shall in no wise believe, though a
man declare it unto you?” If God indeed be strict with the
despisers,—with those who deride the power of his sacraments, and
their necessity,—how shall we abide it? If he come, and make
inquisition with us of our faith, and question with us of our
unbelief, shall not some one take up his parable against us as a
nation, and say, “Alas! who shall live when God doeth this?”
For indeed and in truth, if this _be_ truth touching the nature of
God’s covenant, _who_ are there among us that believe it? “_Who_
hath believed our report, and to whom is the arm of the Lord
revealed?” To a scanty few, I fear! Surely, comparatively to no
more; even among those who have been baptized into the Church, and
received the Church’s teaching. Let any man try seriously any
approach, (which is all I profess to have tried,) any approach to the
dealing with a parish upon the belief and system, that of those who
are not partakers of the sacraments of the Church—of those who,
though baptized, are not communicants, we have no right to hope,
according to the terms of the Gospel covenant; and not only how
arduous and discouraging a work will he find before him, from the
practical neglect of these things, but how direct and open-mouthed
will be the opposition of many, and how utter the disbelief of how
many more, ay, even among such as call themselves members of the
Church. Alas! the truth is, (let me say it, however sad, however
startling! it may be useful,) the real truth is, that the belief of
there being a ONE HOLY, CATHOLIC, AND APOSTOLIC CHURCH, is almost
gone from among us! The belief in ONE BAPTISM FOR THE REMISSION OF
SINS, is almost gone from among us! The belief in the REAL POWER OF
THE SACRAMENTS is almost gone from among us! The belief of there
being ANY CHRISTIAN PRIESTHOOD, and any _value_ in it, as such, is
almost, (nay, among the mass,) quite gone from among us! Alas! how
many of our people do not believe these things; will not endure them
to be said; will risk their souls upon the chance of their being
false; will sooner condemn the “quod semper, quod ubique, quod ob
omnibus” of the Church for 1500 years, as an idle fable, than give
the least reception into their hearts of such doctrines. And alas!
even among _us_ ourselves, the Christian ministry, there is, as men
phrase it, difference of opinion. Instead of unity of sentiment,
(rather, we should say, the one faith, once delivered,) there is
“contention so sharp” that we all but depart, or do “depart one from
the other:” and this gives the most frequent occasion both for
enemies to blaspheme, and for the ignorant to be bewildered. Instead
of our Church (i.e. by her ministers, and in her practical teaching:
I speak not of her formularies,) with one mind and one mouth
glorifying God, _these_ bring railing accusation the one against the
other; and _that_ speaks well-nigh the language of Babel: and the
consequence is, as might be expected, the lay people, if pressed with
the Church’s doctrines, and the neglect of the Church’s commands,
(which are Christ’s) find, of course, an easy solution of their
difficulty by observing that many clergymen think otherwise, and
attach no importance to these _views_, (as they call them) either
wholly neglecting them, or even speaking against them. And if a man
thus pressed with the objection of diversity of opinion now-a-days,
and at home, appeal to the concordant sense of the early Church, and
to the even now united and distinct voice of separate branches of the
Church, on such points as the nature and power of the Christian
priesthood, and Christian sacraments: the distinct voice, I say, of
all the Church, except ourselves, (for our’s, surely, practically in
expression as heard among us, is uncertain and confused, though in
itself it really have and bear the Catholic meaning,) if any one thus
appeal to the voice of the Church at large on such points; a voice in
some respects a more sure witness, as coming from those who are not
agreed among themselves in others, what happens but the immediate cry
of how many? “The man is false, and falleth away to the Chaldæans.”
Thus the truth is stifled and borne down by clamour, and the
authority of the Church is yet more set at nought, neglected, and
despised.
Many of those too, it is to be feared, who really are sound and
orthodox upon the doctrines themselves, have yet been too fearful of
stating the truth plainly, dreading the gainsaying of the multitude,
or else the imputation of magnifying themselves, if they should
endeavour to “magnify their office.” Nor, I suppose, will any man
maintain (not I myself _of_ myself, God knoweth,) that he has kept
clear of such offence, though he may have tried somewhat where his
lot has been cast, to make these doctrines of the Church and
sacraments, and salvation by the terms of a covenant, not according
to each man’s private feeling, or each man’s private judgment, the
basis on which to give the knowledge that might “make wise unto
salvation.” Yet _who_ will dare to say other than that he has failed
grievously, and fallen short miserably, both in the due development
of such views, and in the effects which they are intended to produce:
partly, no doubt, from his own deficiencies, but partly it may be
also from lack of those weapons to carry on the warfare with which
the Church intended to supply her soldiers; but which, alas! we are
hardly allowed to wield!
For, let us notice next, the most serious loss the Church sustains in
the almost total suspension of her discipline, of her power of
inflicting censures. Surely it is not wholly our people’s fault that
they do not know the sinfulness of sin; nor our ministers’ fault that
they cannot make them believe it, when the weapon with which they
should smite they are obliged to leave rusting in the scabbard, and
the pen with which they should write on a man’s forehead the penalty
of his sin, (that he is excluded from the house of God, and cut off
from Christian brotherhood,) is cast aside, and never used. Our
people sin, and no note is taken of it! Our people sin, and the
Church does not bear her witness against them! first, of private
rebuke, next of openly censuring, and lastly of exclusion from her
worship and sacraments, including herein (what would be a plain mark
also for the living to see,) the refusing burial to those who refuse
to seek reconciliation with her. She almost abdicates, as it were,
her office of binding and loosing, and shall we wonder that men know
not or care not whether they are bond or free? or, that with all ease
and security they consider they are all free, though committing sin,
which, in any period of effective discipline, would have received the
solemn warning and most sure witness to its sinfulness, of
excommunication. And how again, I say, does this work upon our
familiar intercourse and daily teaching, and attempts to make our
people believe the Church’s doctrines? They regard not what we say,
because we act as though we did not ourselves believe it. Those who
_would_ be excommunicate, were the canons but in half their measure
carried out, who die perchance in open schism, or other notorious
sin, _have_ yet claimed for them the offices of the Church in their
burial, and so, receiving these, the great witness of the Church
against such courses of living, is rendered nugatory, or even worse.
She even seems to witness _for_ them. How, then, shall the mass of
the careless and self-willed, be persuaded the Church thinks ill of
the state in which those have lived, who have received no public
censure, who have made their claim, and had it, at least passively
allowed, to be buried, as her faithful children? Further still,
regard this lack of discipline, as it affects the obedience of the
people to the Church’s voice, if she speak, or were to speak again,
with her just authority. _Who_ supposes that any real heed would be
given to a censure of the Church, declaring such or such a man to be
“rightly cut off” from its fellowship, “and excommunicate,” so that
he “ought to be taken of the whole multitude of the faithful as an
heathen man, and a publican, until he be openly reconciled by
penance?” _Who_, I say, supposes that such a sentence would now be
regarded? _Are_ such indeed regarded when rarely they _do_ occur?
Or, again, look at the state of things among us, as to the confession
of sin; I speak not of regular systematic confession; nor of
self-sought confessions on the part of a disturbed and awakened mind,
with the view to the benefit of absolution, together with ghostly
counsel and advice; but merely with regard to such points as the
Christian priest feels it often necessary to enquire into, lest a man
_wholly forget his sins_, and so, _wholly forget to repent of them_.
What is the awful result at which we arrive here also. Why, so
entirely are people unused to be charged with their sins; so entirely
are they accustomed to be let _remember_ what they please, and let
_forget_ what they please, that they are only too apt consider all
such helps to self-examination (I mean when it comes to particulars)
to be an unwarrantable intrusion: at least this would be so, were the
thing much attempted: and at any rate, so wholly are they used to
justify themselves, and bent upon doing it, and determined to do it,
that it sometimes requires the greatest caution and circumspection
before we can believe even a dying man’s account of his previous
life. Men will confess indeed what is notorious; what they know is
known; but where they think a matter hidden, there they will deceive.
Alas! I fear, people will speak untruly, even when spoken to most
solemnly on such points. They will speak untruly to God’s minister.
They will speak untruly to him on their sick bed. They will speak
untruly even on their death-bed. They will speak untruly, I fear,
even when _they know_ it is their death-bed. They will desire to
receive the Holy Communion, without having spoken the truth, but
whilst persisting in their lie. I do not say such extreme things are
common, or wholly attributable to any condition of want of
discipline, but I am certain they exist, and I do fear they are much
owing to our having no system of discipline, by which in health,
persons are made aware, that the priest of God is in any wise to be
had recourse to, as an adviser, and ghostly counseller, or that he
has any thing to do with their sins, or practically with the mode of
remitting them in the name of God. So the fear and shame attendant
on speaking to any one whom they have never considered in his true
relation to their sin, and to their souls, and with whom, it may be,
they have always had the natural desire to stand well, as with other
respectable persons in their parish; these things overpower all other
considerations, even in sickness and in death; and we not only very
scantily attain to true accounts, but have hardly even the power to
keep back from communion those who we may feel sure are thus
attempting to deceive us.
Now I think it is plain, these defects rest not entirely (surely we
may say, not chiefly) on individuals. What is, as a nation, our
great reproach, is, as individuals, our best excuse. The fault lies
in our system: in that practically worked and working system which we
have among us. We have well-nigh no weapons to fight with—and we
wonder that we gain no victory. We have no means to make people
believe the Church system, as it exists in theory, is true, or is
important, and we wonder men neglect the sacraments. We cannot
grapple with the wants of our people;—hardly with the cravings of the
earnest-minded on the one hand, and not at all adequately with the
mass of irreligion, infidelity, and schismatical proceeding on the
other.
These are but a few thoughts, on a small part, of a most large and
painful subject.
But truly, “enough,” it may be said, “we have of [ministerial] trials
and discouragements. Every one knows it. To what end then, merely
to enumerate, and bewail them? Where, rather is the remedy; and what
is the drift of these observations?”