Part 12
It appears to me that in some sense, i.e. in reference, at any rate, to posterior legislation, _the pre-reformation doctrines_ may be called the _common law_ of our Church; and if so, we shall readily see the analogy of the civil law, and the authoritative declaration of its rule of construction of statutes, is, that no alteration is made by subsequent enactments, _but what is specified_, or _beside what is plainly pronounced_;—that is to say, what is not “openly, plainly, and dogmatically” altered, remains as it was before. To the same purpose exactly Mr. Chambers adds another passage, stating again “the canon of construction appropriate to statutes,” and again quoting Mr. Dwarris:—
“Affirmative words do not take away the common law, former custom, or a former statute.” {60b}
And again, a little further on, citing further authorities:—
“When particular words are followed by general ones, the latter are to be held as applying to persons and things of the same kind only which precede,” {61a} so that “if a particular thing be given or limited in the preceding parts of a statute this shall not be altered by the subsequent general words of the same statute;” {61b} an observation surely of much weight to show how definitely any part of a statute must be examined, and how directly mentioned in order to its repeal, according to the usage of English law. Once more, to quote but one further passage to the same effect:—
“Unless the intention be apparent for that purpose, the general words of another and later statute shall not repeal the provisions of a former one.” {61c}
Such is the testimony from rules of English law to the principles I desire to maintain, that the pre-reformation dogmatic teaching remains to us, except where it has been “openly, plainly, and dogmatically” repealed.
I need hardly say, these extracts very inadequately represent the force of Mr. Chambers’s argument. A reference to the pamphlet itself will well repay the trouble.
{59b} A Review of the Gorham Case, by John David Chambers, M.A. Recorder of New Sarum.
{60a} Chambers’ Review, pp. 23, 24. Lord Coke, 2 Ins. 30; 3 Rep. 31, per Dwarris, 564.
{60b} Chambers, p. 34. Dwarris, 605.
{61a} Chambers, p. 44. Sandeman v. Breach, 7 B. and C. 96.
{61b} Ibid. Stanton v. University of Oxford, 1 Jon. 26.
{61c} Ibid. p. 45. Gregory’s Ca. 6 Rep. 196; Dwarris, 514.
{63} Speech of Edward Badeley, Esq. pp. 95–97.
{64} Badeley, p. 99.
{66a} Badeley’s Speech, pp. 101, 102.
{66b} Ibid. p. 102.
{69} The objection to be drawn from the sentence of the court in the case in question, with reference to Mr. Badeley’s argument from antiquity, and the teaching of the Church previous to the reformation, is even of less real weight than I have here implied; because that court does not appear at all to have applied itself to the principle for which Mr. Badeley contended. It seems rather to have forgotten its existence, than seriously to have examined and condemned it; and though it may be said, perhaps, that such passing it over affords a _presumption_ of its unsoundness, yet this, I think, is _all_ that can be made out of its treatment by that tribunal. Whatever, therefore, be the _presumption_, it is _certainly no proof_ and no _sentence_ as to the unsoundness of the position taken up by Mr. Badeley even for the purpose of the particular case, much less of its unsoundness generally. So many other causes may be conceived to have operated upon the Judges’ minds in coming to the conclusion they did; for instance, they _may have_ admitted Mr. Badeley’s principle, but thought the doctrine in question, as maintained by the Bishop of Exeter, was not sufficiently identified with the universal teaching of the Church; or that that very teaching was itself vague; or that posterior documents of the English Church absolutely contradicted the earlier doctrine; (however improbable, such reasons are conceivable as influencing the actual decision;) and thus we are not warranted in supposing there is any sentence unfavourable to the soundness of Mr. Badeley’s principle of catholic tradition, by the proceedings of this court of appeal in reference to it.
I am persuaded no lawyer will contradict what I have here said, as to secular affairs, and I see no reason why the same measure should not be dealt forth in causes ecclesiastical and spiritual. I mean, that no lawyer will contradict the principle, that because a certain argument or line of defence has not been taken into consideration, or not admitted as conclusive upon the side on which it is advanced in any given instance, it should be looked upon as judicially condemned, or not be used again if occasion should arise. If even the reasons of a court of law on which it founds its sentence are really no formal part of the judgment, much less can the mere overlooking or ignoring a particular line of argument, disable or disfranchise that line of argument, so as to render it for ever unavailable.
{71} Eccles. Polity, book viii. ch. ii. § 17, vol. iii. pp. 447–8, Keble’s Edit. See also Appendix G.
{75} Coke’s 4th Inst. p. 323.
{76} 25 Henry VIII. c. 19, § 7.
{78a} This, however, in the particular case, is an almost impossible supposition, because it was from the petition of the clergy themselves, however obtained, that the scheme emanated, and in accordance with its prayer that this board of two-and-thirty persons was to be appointed. 25 Henry VIII. c. 19, s. 1. See also Gladstone’s Letter to the Bishop of London, p. 9.
{78b} Gladstone, p. 9.
{78c} Ibid. p. 62.
{82} Badeley, p. 99.
{87} See p. 19.
{89} Second Letter, p. 42.
{90a} Second Letter, p. 57.
{90b} Ibid. p. 61.
{91} Second Letter, p. 63.
{92a} Second Letter, p. 72.
{92b} “As regards the Church of England in particular, it may be that the so-called reformation contained—perhaps unknown to the original promoters of it—poisonous seeds of evil, bringing in certain though slow decay; and that either new principles were then secretly established, which in their development would most surely lead to the destruction and confusion of essential truths, or old principles were, in ignorance, given up, which the gradual course of time would prove to be necessary, because they lie at the very foundation of Christianity itself. Or, once more, it may be with portions of the Church Catholic as with the vine, her mysterious type. ‘I am the vine, ye are the branches,’ were the words of our Blessed Lord, speaking of His body, the Church, of which he is himself the Head. And we may well conceive how a branch, full of sap and vigour, may be severed from the stem, and yet for a period—longer or shorter—still continue to put forth leaves, and perhaps the blossoms of fruit also; nevertheless, cut off all the while, and severed; requiring time to die, but death itself inevitable at last.”—Second Letter, pp. 72, 73.
{101} Maskell’s Doctrine of Absolution, p. 291.
{102} Letter, p. 16.
{105a} Letter in Guardian, March 20th, 1850.
{105b} Guardian, May 8th, 1850.
{106} Bishop of Exeter’s Letter, p. 90. I am not unaware that Mr. Keble has recently further explained his views on this matter in a second number of his “Church Matters in 1850;” and of course I am not forgetful that the Bishop of Exeter has repeated his protest and declaration on the point: but as these authorities serve only to confirm and strengthen the substance of what I had previously noted down, I do not see any occasion to withdraw or alter it.
{112} It may be useful to observe here, that nothing affecting our Church at large seems to me to result from the correspondence published in May last, between the Archbishop and Mr. Maskell. However unsatisfactory the answers given by the Archbishop to Mr. Maskell’s queries may be deemed, they do not, as it appears to me, commit the _Church of England_ to anything, but _himself_ only. I cannot but think his Grace is quite right when he says he cannot be understood, in an unofficial correspondence of that kind, to speak for the Church, but only for himself. Therefore, however his answers may serve as evidence of his own opinion, and be a help in determining how far he stands committed to having, personally, little or no dogmatic teaching on the subjects brought under his notice by Mr. Maskell; however, therefore, those answers may be valuable in the settlement of the question whether we are morally bound to withdraw from communion with his Grace, they prove nothing as to our Church at large, and can commit her to nothing unless accepted, confirmed, and adopted by herself; that is to say, they have no bearing at all in reference to the argument of this letter, and being unauthoritative statements, are no refutation of any proofs I may have given of our rule of dogmatic teaching. If the intentions of our reformers are not to be taken as evidence of the meaning of our various formularies, much less the construction of them by an individual archbishop.
{116} Neale’s Few Words of Hope, p. 22.
{120} No doubt there are persons whose habitual view is so absorbed in the majesty of human law, that they appear to forget there is any higher law with which we have to do. “Sir, I have had the honour to receive your letter, in which you intimate to me your intention of violating the law,” was an answer of some celebrity in its day. Perchance the question had not presented itself to the writer’s mind,
“What law is that? ’Tis not the law of God, nor yet _above_ it.”
{122} Convocations and Synods, by an Anglican Layman, p. 6.
{124} Convocations and Synods, p. 11–14.
{125a} Archdeacon Manning’s Letter, p. 23.
{125b} Ibid. p. 41.
{126} Manning, p. 23.
{127} Bramhall’s Works, p. 141. See also Manning’s Sermon on the Rule of Faith.
“The Church of England so far from submitting either the rule, or her decisions according to the rule, to the judgment of her individual members, will not submit them even to the judgment of particular Churches, or to any tribunal less than that to which all particular churches are subject, that is, a general council, of which either the members shall truly _represent_ the Church Catholic, or the decrees be universally _received_. * *
“We therefore no more submit the doctrinal decisions of the Church to the judgment of individual minds, than the canon of Scripture itself. We do acknowledge an authority higher than either the Church of England, or of Rome in particular. What hinders an appeal to that tribunal, Dr. Wiseman knows as well as we. But if such a council, truly general, freely assembled, should meet to-morrow, the rule of its decisions would be, ‘non sua posteris tradere, sed a majoribus accepta servare.’”—Pp. 25, 26, note.
{128} See Appendix H.
{131} Second Letter, p. 80.