_A Collection of the Judgments of the Judicial Committee of the Privy
Council in Ecclesiastical Cases relating to Doctrine and Discipline;
with a Preface by the Lord Bishop of London, and an Historical
Introduction_. Edited by the Hon. G. Brodrick, Barrister-at-Law, and
Rev. the Hon. W.H. Fremantle, Chaplain to the Bishop of London.
_Guardian_, 15th February 1865.
The Bishop of London has done a useful service in causing the various
decisions of the present Court of Appeal to be collected into a volume.
There is such an obvious convenience about the plan that it hardly
needed the conventional reason given for it, that "the knowledge
generally possessed on the subject of the Court is vague, and the
sources from which accurate information can be obtained are little
understood; and that people who discuss it ought in the first place to
know what the Court is, and what it does." This is the mere customary
formula of a preface turned into a rhetorical insinuation which would
have been better away; most of those who care about the subject, and
have expressed opinions about it, know pretty well the nature of the
Court and the result of its working, and whatever variations there may
be in the judgment passed upon it arise not from any serious
imperfection of knowledge but from differences of principle. It was
hardly suitable in a work like this to assume a mystery and obscurity
about the subject where there is really none, and to claim superior
exactness and authenticity of information about a matter which in all
its substantial points is open to all the world. And we could conceive
the design, well-intentioned as it is, carried out in a way more
fitting to the gravity of the occasion which has suggested it. The
Bishop says truly enough that the questions involved in the
constitution of such a court are some of the most difficult with which
statesmen have to deal. Therefore it seems to us that a collection of
the decisions of such a court, put forth for the use of the Church and
nation under the authority of the Bishop of London, ought to have had
the dignity and the reserve of a work meant for permanence and for the
use of men of various opinions, and ought not to have had even the
semblance, as this book has, of an _ex parte_ pamphlet. The Bishop of
London is, of course, quite right to let the Church know what he thinks
about the Court of Final Appeal; and he is perfectly justified in
recommending us, in forming our opinion, to study carefully the facts
of the existing state of things; but it seems hardly becoming to make
the facts a vehicle for indirectly forcing on us, in the shape of
comments, a very definite and one-sided view of them, which is the very
subject of vehement contradiction and dispute. It would have been
better to have committed what was necessary in the way of explanation
and illustration to some one of greater weight and experience than two
clever young men of strong bias and manifest indisposition to respect
or attend to, or even to be patient with, any aspect of the subject but
their own in this complicated and eventful question, and who, partly
from overlooking great and material elements in it, and partly from an
imperfect apprehension of what they had to do, have failed to present
even the matters of fact with which they deal with the necessary
exactness and even-handedness. It seems to us that in a work intended
for the general use of the Church and addressed to men of all opinions,
they only remember to be thoroughgoing advocates and justifiers of the
Court which happens to have grown into such important consequence to
the English Church. The position is a perfectly legitimate one; but we
think it had better not have been connected with a documentary work
like the present, set forth by the direction and under the sanction of
a Bishop of London.
In looking over the cases which have been brought together into a
connected series, the first point which is suggested by the review is
the great and important change in the aspect and bearing of doctrinal
controversies, and in the situation of the Church, as affected by them,
which the creation and action of this Court have made. From making it
almost a matter of principle and boast to dispense with any living
judge of controversies, the Church has passed to having a very
energetic one. Up to the Gorham judgment, it can hardly be said that
the ruling of courts of law had had the slightest influence on the
doctrinal position and character of the Church. Keen and fierce as had
been the controversies in the Church up to that judgment, how often had
a legal testing of her standards been seriously sought for or seriously
appealed to? There had been accusations of heresy, trials,
condemnations, especially in the times following the Reformation and
preceding the Civil War; there had been appeals and final judgments
given in such final courts as existed; but all without making any mark
on the public mind or the received meaning of doctrines and
formularies, and without leaving a trace except in law reports. They
seem to have been forgotten as soon as the particular case was disposed
of. The limits of supposed orthodox belief revived; but it was not the
action of judicial decisions which either narrowed or enlarged them.
Bishop Marsh's Calvinists never thought of having recourse to law. If
the Church did not do entirely without a Court of Final Appeal, it is
simply a matter of fact that the same weight and authority were not
attached to the proceedings of such a court which are attached to them
now. But since the Gorham case, the work of settling authoritatively,
if not the meaning of doctrines and of formularies, at any rate the
methods of interpreting and applying them, has been briskly going on in
the courts, and a law laid down by judges without appeal has been
insensibly fastening its hold upon us. The action of the courts is
extolled as being all in the direction of liberty. Whatever this praise
may be worth, it is to be observed that it is, after all, a wooden sort
of liberty, and shuts up quite as much as it opens. It may save, in
this case or that, individual liberty; but it does so by narrowing
artificially the natural and common-sense grounds of argument in
religious controversy, and abridging as much as possible the province
of theology. Before the Gorham case, the Formularies in general were
the standard and test, free to both sides, about baptismal
regeneration. Both parties had the ground open to them, to make what
they could of them by argument and reason. Discipline was limited by
the Articles and Formularies, and in part by the authority of great
divines and by the prevailing opinion of the Church, and by nothing
else; these were the means which each side had to convince and persuade
and silence the other, and each side might hope that in the course of
time its sounder and better supported view might prevail. But now upon
this state of things comes from without a dry, legal, narrow
stereotyping, officially and by authority, of the sense to be put upon
part of the documents in the controversy. You appeal to the
Prayer-book; your opponent tells you, Oh, the Court of Appeal has ruled
against you there: and that part of your case is withdrawn from you,
and he need give himself no trouble to argue the matter with you.
Against certain theological positions, perhaps of great weight, and
theological evidence, comes, not only the doctrine of theological
opponents, but the objection that they are bad law. The interpretation
which, it may be, we have assumed all our lives, and which we know to
be that of Fathers and divines, is suddenly pronounced not to be legal.
The decision does not close the controversy, which goes on as keenly
and with perhaps a little more exasperation than before; it simply
stops off, by virtue of a legal construction, a portion of the field of
argument for one party, which was, perhaps, supposed to have the
strongest claim to it. The Gorham case bred others; and now, at last,
after fifteen years, we have got, as may be seen in Messrs. Brodrick
and Fremantle's book, a body of judicial _dicta_, interpretations,
rules of exposition, and theological propositions, which have grown up
in the course of these cases, and which in various ways force a meaning
and construction on the theological standards and language of the
Church, which in some instances they were never thought to have, and
which they certainly never had authoritatively before. Besides her
Articles and Prayer-hook, speaking the language of divines and open to
each party to interpret according to the strength and soundness of
their theological ground, we are getting a supplementary set of legal
limitations and glosses, claiming to regulate theological argument if
not teaching, and imposed upon us by the authority not of the Church or
even of Parliament but of the Judges of the Privy Council. This, it
strikes us, is a new position of things in the Church, a new
understanding and a changed set of conditions on which to carry on
controversies of doctrine; and it seems to us to have a serious
influence not only on the responsibility of the Church for her own
doctrine, but on the freedom and genuineness with which questions as to
that doctrine are discussed. The Court is not to blame for this result;
to do it justice, it has generally sought to decide as little as it
could; and the interference of law with the province of pure theology
is to be rather attributed to that mania for deciding, which of late
has taken possession pretty equally of all parties. But the
indisputable result is seen to be, after the experience of fifteen
years, that law is taking a place in our theological disputes and our
theological system which is new to it in our theological history; law,
not laid down prospectively in general provisions, but emerging
indirectly and incidentally out of constructions and judicial rulings
on cases of pressing and hazardous exigency; law, applying its
technical and deliberately narrow processes to questions which of
course it cannot solve, but can only throw into formal and inadequate,
if not unreal, terms; and laying down the limits of belief and
assertion on matters about which hearts burn and souls tremble, by the
mouth of judges whose consummate calmness and ability is only equalled
by their profound and avowed want of sympathy for the theology of which
their position makes them the expounders and final arbiters. A system
has begun with respect to English Church doctrine, analogous to that by
which Lord Stowell made the recent law of the sea, or that by which on
a larger scale the rescripts and decrees of the Popes moulded the great
system of the canon law.
This is the first thing that strikes us on a comparative survey of this
set of decisions. The second point is one which at first sight seems
greatly to diminish the importance of this new condition of things, but
which on further consideration is seen to have a more serious bearing
than might have been thought. This is, the odd haphazard way in which
points have come up for decision; the sort of apparent chance which has
finally governed the issue of the various contentions; and the
infinitesimally fine character of the few propositions of doctrine to
which the Court has given the sanction of its ruling. Knowing what we
all of us cannot help knowing, and seeing things which lawyers and
judges are bound not to allow themselves to see or take account of, we
find it difficult to repress the feeling of amazement, as we travel
through the volume, to see Mr. Gorham let off, Mr. Heath deprived, then
Dr. Williams and Mr. Wilson let off, and to notice the delicate
technical point which brought to nought the laborious and at one time
hopeful efforts of the worthy persons who tried to turn out Archdeacon
Denison. And as to the matter of the decisions, though undoubtedly
_dicta_ of great importance are laid down in the course of them, yet it
is curious to observe the extremely minute and insignificant statements
on which in the more important cases judgment is actually pronounced.
The Gorham case was held to affect the position of a great party; but
the language and theory actually examined and allowed would hardly, in
legal strictness, authorise much more than the very peculiar views of
Mr. Gorham himself. And in the last case, the outside lay world has
hardly yet done wondering at the consummate feat of legal subtlety by
which the issue whether the English Church teaches that the Bible is
inspired was transmuted into the question whether it teaches that every
single part of every single book is inspired. It might seem that
rulings, of which the actual product in the way of doctrinal
propositions was so small, were hardly subjects for any keen interest.
But it would be shortsighted to regard the matter in this way. In the
first place, whatever may have happened as yet, it is manifestly a
serious thing for Church of England doctrine to have been thrown, on a
scale which is quite new, into the domain of a court of law, to lie at
the mercy of the confessed chances and uncertainties of legal
interpretation, with nothing really effective to correct and remedy
what may possibly be, without any fault in the judges, a fatally
mischievous construction of the text and letter of her authoritative
documents. In the next place, no one can fail to see, no one in fact
affects to deny, that the general result of these recent decisions,
capricious as their conclusions look at first sight, has been to make
the Formularies mean much less than they were supposed to mean. The
tendency of every English court, appealed to not as a court of equity
but one of criminal jurisdiction, is naturally to be exacting and even
narrow in the interpretation of language. The general impression left
by these cases is that the lines of doctrine in the English Church are
regarded by the judicial mind as very faint, and not much to be
depended upon; and that these judgments may be the first steps in that
insensible process by which the unpretending but subtle and powerful
engine of interpretation has been applied by the courts to give a
certain turn to law and policy; applied, in this instance, to undermine
the definiteness and certainty of doctrine, and in the end, the
understanding itself which has hitherto existed between the Church and
the State, and has kept alive the idea of her distinct basis,
functions, and rights.
This is the view of matters which arises from an examination of the
proceedings contained in this volume. What is the argument urged in the
Historical Introduction to justify or recommend our acquiescence in it?
It seems to us to consist mainly in a one-sided and exaggerated
statement of the Supremacy claimed and brought in by Henry VIII., and
of the effect in theory and fact which it ought to have on our notion
of the Church and of Church right. The complaint of the present state
of things is, that those who may be taken to represent the interests of
the Church in such a matter as the character of her teaching are
practically excluded from having any real influence in the decision of
questions by which the character of that teaching is affected. The
answer is that she has no right to claim a separate interest in the
matter, and that the doctrine of the Royal Supremacy was meant to
extinguish, and has extinguished, any pretence to such a claim. The
_animus_ which pervades the work, and which is not obscurely disclosed
in such things as footnotes and abridgments of legal arguments, is thus
given--more freely, of course, than it would be proper to introduce in
a book like this--in some remarks of Mr. Brodrick, one of the editors,
at a recent discussion of the question of Ecclesiastical Appeals in a
committee of the Social Science Association. He is reported to have
spoken as follows:--
The Church of England being established by law, could not be
allowed any independence of action; and those who wished for it
were like people who wanted to have their cake and eat it. As to
the Privy Council, he had never heard its decisions charged with
error. What was complained of was that it had declined to take the
current opinions of theologians and make them part of the
Thirty-nine Articles. There was no need whatever for the Privy
Council to possess any special theological knowledge. The only
case where that knowledge was necessary was when it was alleged
that doctrines had been held in the Church without censure. That
was a case in which considerable theological lore was required;
but it was within the province of counsel to supply it. Divines
had now discovered, what lawyers could have told them long ago,
and what he knew some of them had been told--namely, that it would
not do to treat the Thirty-nine Articles as penal statutes;
because, if that were done, a coach might be easily driven through
them. If they had wished to maintain the authority of the
Articles, they would have done best to have kept quiet.
The present Court of Appeal is deduced, in the Historical Introduction,
as a natural and logical consequence, from Henry VIII.'s Supremacy.
Undoubtedly it is scarcely possible to overstate the all-grasping
despotism of Henry VIII., and if a precedent for anything reckless of
all separate rights and independence should be wanted, it would never
be sought in vain if looked for in the policy and legislation of that
reign. So far the editors are right; the power over religion claimed by
Henry VIII. will carry them wherever they want to go; it will give
them, if they need it, as a still more logical and legitimate
development of the Supremacy, the Court of High Commission. Only they
ought to have remembered, as fair historians, that even in the days of
the Supremacy the distinct nature and business of the Church and of
Churchmen was never denied. Laymen were given powers over the Church
and in the Church which were new; but the distinct province of the
Church, if abridged and put under new control, was not abolished. Side
by side with the facts showing the Supremacy and its exercise are a set
of facts, for those who choose to see them, showing that the Church was
still recognised, even by Henry VIII., as a body which he had not
created, which he was obliged to take account of, and which filled a
place utterly different from every other body in the State. Henry VIII.
played the tyrant with his Churchmen as he did with his Parliament and
with everybody else; and Churchmen, like everybody else, submitted to
him. But the "Imperialism" of Henry VIII., though it went beyond even
the Imperialism of Justinian and Charlemagne in its encroachments on
the spiritual power, as little denied the fact of that power as they
did. He recognised the distinct place and claims of the spiritualty;
and, as we suppose that even the editors of this volume hardly feel
themselves bound to make out the consistency of Henry, they might have
spared themselves the weak and not very fair attempt to get rid of the
force of the remarkable words in which this recognition is recorded in
the first Statute of Appeals (24 Henry VIII. c. 12). The words would,
no doubt, be worth but little, were it not that as a matter of fact a
spiritualty did act and judge and lay down doctrine, and even while
yielding to unworthy influence did keep up their corporate existence.
But when the ecclesiastical legislation of Henry VIII. is referred to,
not merely as the historical beginning of a certain state of things
which has undergone great changes in the course of events, but as
affording a sort of idea and normal pattern to which our own
arrangements ought to conform, as supplying us with a theory of Church
and State which holds good at least against the Church, it seems hard
that the Church alone should not have the benefit of the entire
alteration of circumstances since that theory was a reality. Those who
talk about the Supremacy ought to remember what the Supremacy pretended
to be. It was over _all_ causes and _all_ persons, civil as well as
ecclesiastical. It held good certainly in theory, and to a great extent
in practice, against the temporalty as much as against the spiritualty.
Why then are we to invoke the Supremacy as then understood, in a
question about courts of spiritual appeals, and not in questions about
other courts and other powers in the nation? If the Supremacy, claimed
and exercised as Henry claimed and exercised it, is good against the
Church, it is good against many other things besides. If the Church
inherits bonds and obligations, not merely by virtue of distinct
statutes, but by the force of a general vague arbitrary theory of royal
power, why has that power been expelled, or transformed into a mere
fiction of law, in all other active branches of the national life?
Unless the Church is simply, what even Henry VIII. did not regard it, a
creation and delegate of the national power, without any roots and
constitution of its own, why should the Church be denied the benefit of
the common sense, and the change in ideas and usage, which have been so
largely appealed to in civil matters? Why are we condemned to a theory
which is not only out of date and out of harmony with all the
traditions and convictions of modern times, hut which was in its own
time tyrannous, revolutionary, and intolerable? Arguments in favour of
the present Court, drawn from the reason of the thing, and the
comparative fitness of the judges for their office, if we do not agree
with them, at least we can understand. But precedents and arguments
from the Supremacy of Henry VIII. suggest the question whether those
who use them are ready to be taken at their word and to have back that
Supremacy as it was; and whether the examples of policy of that reign
are seemly to quote as adequate measures of the liberty and rights of
any set of Englishmen.
The question really calling for solution is--How to reconcile the just
freedom of individual teachers in the Church with the maintenance of
the right and duty of the Church to uphold the substantial meaning of
her body of doctrine? In answering this question we can get no help
from this volume. It simply argues that the present is practically the
best of all possible courts; that it is a great improvement, which
probably it is, on the Courts of Delegates; and that great confidence
ought to be felt in its decisions. We are further shown how jealously
and carefully the judges have guarded the right of the individual
teacher. But it seems to us, according to the views put forward in this
book, that as the price of all this--of great learning, weight, and
ability in the judges--of great care taken of liberty--the Church is
condemned to an interpretation of the Royal Supremacy which floats
between the old arbitrary view of it and the modern Liberal one, and
which uses each, as it happens to be most convenient, against the claim
of the Church to protect her doctrine and exert a real influence on the
authoritative declaration of it. We all need liberty, and we all ought
to be ready to give the reasonable liberty which we profess to claim
for ourselves. But it is a heavy price to pay for it, if the right and
the power is to be taken out of the hands of the Church to declare what
is the real meaning of what she supposes herself bound to teach.
IV
SIR JOHN COLERIDGE ON THE PURCHAS CASE[5]
[5]
_Remarks on Some Parts of the Report of the Judicial Committee in
the Case of "Elphinstone against Purchas."_ A Letter to Canon Liddon,
from the Right Hon. Sir J.T. Coleridge. _Guardian_, 5th April 1871.
No one has more right to speak with authority, or more deserves to be
listened to at a difficult and critical moment for the Church, than Sir
J.T. Coleridge. An eminent lawyer, and a most earnest and well-informed
Churchman, he combines in an unusual way claims on the attention of all
who care for the interests of religion, and for those, too, which are
so deeply connected with them, the interests of England. The troubles
created by the recent judgment have induced him to come forward from
his retirement with words of counsel and warning.