Chapter 2

"In the most limited monarchy," as he says truly the "King is represented in law books, as in theory an absolute sovereign." "Even now," says Mr. Gladstone, "after three centuries of progress toward democratic sway, the Crown has prerogatives by acting upon which, within their strict and unquestioned bounds, it might at any time throw the country into confusion. And so has each House of Parliament." But if the absolute supremacy of the Crown _in the legal point of mew exactly the same over temporal matters and causes as over spiritual_, is taken by no sane man to be a literal fact in temporal matters, it is violating the analogy of the Constitution, and dealing with the most important subjects in a mere spirit of narrow perverseness, to insist that it can have none but a literal meaning in ecclesiastical matters; and that the Church _did_ mean, though the State _did not_ to accept a despotic prerogative, unbounded by custom, convention, or law, and unchecked by acknowledged and active powers in herself. Yet such is the assumption, made in bitterness and vexation of spirit by some of those who have lately so hastily given up her cause; made with singular assurance by others, who, Liberals in all their political doctrines, have, for want of better arguments, invoked prerogative against the Church.

What the securities and checks were that the Church, not less than the nation, contemplated and possessed, are not expressed in the theory itself of the royal prerogative; and, as in the ease of the nation, we might presume beforehand, that they would be found in practice rather than on paper. They were, however, real ones. "With the same theoretical laxity and practical security," as in the case of Parliaments and temporal judges, "was provision made for the conduct of Church affairs." Making allowance for the never absent disturbances arising out of political trouble and of personal character, the Church had very important means of making her own power felt in the administration of her laws, as well as in the making of them.

The real question, I apprehend, is this:--When the Church assented to those great concessions which were embodied in our permanent law at the Reformation, had she _adequate securities_ that the powers so conveyed would be exercised, upon the whole, with a due regard to the integrity of her faith, and of her office, which was and has ever been a part of that faith? I do not ask whether these securities were all on parchment or not--whether they were written or unwritten--whether they were in statute, or in common law, or in fixed usage, or in the spirit of the Constitution and in the habits of the people--I ask the one vital question, whether, whatever they were in form, they were in substance sufficient?

_The securities_ which the Church had were these: First, that the assembling of the Convocation was obviously necessary for the purposes of taxation; secondly and mainly, that the very solemn and fundamental laws by which the jurisdiction of the See of Rome was cut off, assigned to the spiritualty of the realm the care of matters spiritual, as distinctly and formally as to the temporalty the care of matters temporal; and that it was an understood principle, and (as long as it continued) a regular usage of the Constitution, that ecclesiastical laws should be administered by ecclesiastical judges. These were the securities on which the Church relied; on, which she had a right to rely; and on which, for a long series of years, her alliance was justified by the results.

And further:--

The Church had this great and special security on which to rely, that the Sovereigns of this country were, for a century after the Reformation, amongst her best instructed, and even in some instances her most devoted children: that all who made up the governing body (with an insignificant exception) owned personal allegiance to her, and that she might well rest on that personal allegiance as warranting beforehand the expectation, which after experience made good, that the office of the State towards her would be discharged in a friendly and kindly spirit, and that the principles of constitutional law and civil order would not be strained against her, but fairly and fully applied in her behalf.

These securities she now finds herself deprived of. This is the great change made in her position--made insensibly, and In a great measure, undesignedly--which has altered altogether the understanding on which she stood towards the Crown at the Reformation. It now turns out that that understanding, though it might have been deemed sufficient for the time, was not precise enough; and further, was not sufficiently looked after in the times which followed. And on us comes the duty of taking care that it be not finally extinguished; thrown off by the despair of one side, and assumed by the other as at length abandoned to their aggression.

Mr. Gladstone comes to the question with the feelings of a statesman, conscious of the greatness and excellence of the State, and anxious that the Church should not provoke its jealousy, and in urging her claims should "take her stand, as to all matters of substance and principle, on the firm ground of history and law." It makes his judgment on the present state of things more solemn, and his conviction of the necessity of amending it more striking, when they are those of one so earnest for conciliation and peace. But on constitutional not less than on other grounds, he pronounces the strongest condemnation on the present formation of the Court of Appeal, which, working in a way which even its framers did not contemplate, has brought so much distress into the Church, and which yet, in defiance of principle, of consistency, and of the admission of its faultiness, is so recklessly maintained. Feeling and stating very strongly the evil sustained by the Church, from the suspension of her legislative powers,--"that loss of command over her work, and over the heart of the nation, which it has brought upon her,"--so strongly indeed that his words, coming from one familiar with the chances and hazards of a deliberative assembly, give new weight to the argument for the resumption of those powers,--feeling all this, he is ready to acquiesce in the measure beyond which the Bishops did not feel authorised to go, and which Mr. Gladstone regards as "representing the extremest point up to which the love of peace might properly carry the concessions of the Church":--

That which she is entitled in the spirit of the Constitution to demand would be that the Queen's ecclesiastical laws shall be administered by the Queen's ecclesiastical judges, of whom the Bishops are the chief; and this, too, under the checks which the sitting of a body appointed for ecclesiastical legislation would impose.

But if it is not of vital necessity that a Church Legislature should sit at the present time--if it is not of vital necessity that all causes termed ecclesiastical should be treated under special safeguards--if it is not of vital necessity that the function of judgment should be taken out of the hands of the existing court--let the Church frankly and at once subscribe to every one of these great concessions, and reduce her demands to a _minimum_ at the outset.

Laws ecclesiastical by ecclesiastical judges, let this be her principle; it plants her on the ground of ancient times, of the Reformation, of our continuous history, of reason and of right. The utmost moderation, in the application of the principle, let this he her temper, and then her case will be strong in the face of God and man, and, come what may, she will conquer.... If, my Lord, it be felt by the rulers of the Church, that a scheme like this will meet sufficiently the necessities of her case, it must be no small additional comfort to them to feel that their demand is every way within the spirit of the Constitution, and short of the terms which the great compact of the Reformation would authorise you to seek. You, and not those who are against you, will take your stand with Coke and Blackstone; you, and not they, will wield the weapons of constitutional principle and law; you, and not they, will be entitled to claim the honour of securing the peace of the State no less than the faith of the Church; you, and not they, will justly point the admonitory finger to those remarkable words of the Institutes:--

"And certain it is, that this Kingdom hath been best governed, and peace and quiet preserved, when both parties, that is, when the justices of the temporal courts and the ecclesiastical judges have kept themselves within their proper jurisdiction, without encroaching or usurping one upon another; and where such encroachments or usurpations have been made, they have been the seeds of great trouble and inconvenience."

Because none can resist the principle of your proposal, who admit that the Church has a sphere of proper jurisdiction at all, or any duty beyond that of taking the rule of her doctrine and her practice from the lips of ministers or parliaments. If it shall be deliberately refused to adopt a proposition so moderate, so guarded and restrained in the particular instance, and so sustained by history, by analogy, and by common reason, in the case of the faith of the Church, and if no preferable measure be substituted, it can only be in consequence of a latent intention that the voice of the Civil Power should be henceforward supreme in the determination of Christian doctrine.

We trust that such an assurance, backed as it is by the solemn and earnest warnings of one who is not an enthusiast or an agitator, but one of the leading men in the Parliament of England, will not be without its full weight with those on whom devolves the duty of guiding and leading us in this crisis. The Bishops of England have a great responsibility on them. Reason, not less than Christian loyalty and Christian charity, requires the fairest interpretation of their acts, and it may be of their hesitation,--the utmost consideration of their difficulties. But reason, not less than Christian loyalty and charity, expects that, having accepted the responsibilities of the Episcopate, they should not withdraw from them when they arrive; and that there should be neither shrinking nor rest nor compromise till the creed and the rights of the Church entrusted to their fidelity be placed, as far as depends on them, beyond danger.

II

JOYCE ON COURTS OF SPIRITUAL APPEAL[3]

[3] _Ecclesia Vindicata; a Treatise on Appeals in Matters Spiritual_. By James Wayland Joyce. _Saturday Review_, 22nd October 1864.

Nothing can be more natural than the extreme dissatisfaction felt by a large body of persons in the Church of England at the present Court of Final Appeal in matters of doctrine. The grievance, and its effect, may have been exaggerated; and the expressions of feeling about it certainly have not always been the wisest and most becoming. But as the Church of England is acknowledged to hold certain doctrines on matters of the highest importance, and, in common with all other religious bodies, claims the right of saying what are her own doctrines, it is not surprising that an arrangement which seems likely to end in handing over to indifferent or unfriendly judges the power of saying what those doctrines are, or even whether she has any doctrines at all, should create irritation and impatience. There is nothing peculiar to the English Church in the assumption, either that outsiders should not meddle with and govern what she professes to believe and teach, or that the proper and natural persons to deal with theological questions are the class set apart to teach and maintain her characteristic belief. Whatever may ultimately become of these assumptions, they unquestionably represent the ideas which have been derived from the earliest and the uniform practice of the Christian Church, and are held by most even of the sects which have separated from it. To any one who does not look upon the English Church as simply a legally constituted department of the State, like the army or navy or the department of revenue, and believes it to have a basis and authority of its own, antecedent to its rights by statute, there cannot but be a great anomaly in an arrangement which, when doctrinal questions are pushed to their final issues, seems to deprive her of any voice or control in the matters in which she is most interested, and commits them to the decision, not merely of a lay, but of a secular and not necessarily even Christian court, where the feeling about them is not unlikely to be that represented by the story, told by Mr. Joyce, of the eminent lawyer who said of some theological debate that he could only decide it "by tossing up a coin of the realm." The anomaly of such a court can hardly be denied, both as a matter of theory and--supposing it to matter at all what Church doctrine really is--as illustrated in some late results of its action. It is still more provoking to observe, as Mr. Joyce brings out in his historical sketch, that simple carelessness and blundering have conspired with the evident tendency of things to cripple and narrow the jurisdiction of the Church in what seems to be her proper sphere. The ecclesiastical appeals, before the Reformation, were to the ecclesiastical jurisdiction alone. They were given to the civil power by the Tudor legislation, but to the civil power acting, if not by the obligation of law, yet by usage and in fact, through ecclesiastical organs and judges. Lastly, by a recent change, of which its authors have admitted that they did not contemplate the effect, these appeals are now to the civil jurisdiction acting through purely civil courts. It is an aggravation of this, when the change which seems so formidable has become firmly established, to be told that it was, after all, the result of accident and inadvertence, and a "careless use of terms in drafting an Act of Parliament"; and that difficult and perilous theological questions have come, by "a haphazard chance," before a court which was never meant to decide them. It cannot be doubted that those who are most interested in the Church of England feel deeply and strongly about keeping up what they believe to be the soundness and purity of her professed doctrine; and they think that, under fair conditions, they have clear and firm ground for making good their position. But it seems by no means unlikely that in the working of the Court of Final Appeal there will be found a means of evading the substance of questions, and of disposing of very important issues by a side wind, to the prejudice of what have hitherto been recognised as rightful claims. An arrangement which bears hard upon the Church theoretically, as a controversial argument in the hands of Dr. Manning or Mr. Binney, and as an additional proof of its Erastian subjection to the State, and which also works ill and threatens serious mischief, may fairly be regarded by Churchmen with jealousy and dislike, and be denounced as injurious to interests for which they have a right to claim respect. The complaint that the State is going to force new senses on theological terms, or to change by an unavowed process the meaning of acknowledged formularies in such a body as the English Church, is at least as deserving of attention as the reluctance of conscientious Dissenters to pay Church-rates.

Mr. Joyce's book shows comprehensively and succinctly the history of the changes which have brought matters to their present point, and the look which they wear in the eyes of a zealous Churchman, disturbed both by the shock given to his ideas of fitness and consistency, and by the prospect of practical evils. It is a clergyman's view of the subject, but it is not disposed of by saying that it is a clergyman's view. It is incomplete and one-sided, and leaves out considerations of great importance which ought to be attended to in forming a judgment on the whole question; but it is difficult to say that, regarded simply in itself, the claim that the Church should settle her own controversies, and that Church doctrine should be judged of in Church courts, is not a reasonable one. The truth is that the present arrangement, if we think only of its abstract suitableness and its direct and ostensible claims to our respect, would need Swift himself to do justice to its exquisite unreasonableness. It is absurd to assume, as it is assumed in the whole of our ecclesiastical legislation, that the Church is bound to watch most jealously over doctrine, and then at the last moment to refuse her the natural means of guarding it. It is absurd to assume that the "spiritualty" are the only proper persons to teach doctrine, and then to act as if they were unfit to judge of doctrine. It is not easy, in the abstract, to see why articles which were trusted to clergymen to draw up may not be trusted to clergymen to explain, and why what there was learning and wisdom enough to do in the violent party times and comparative inexperience of the Reformation, cannot be safely left to the learning and wisdom of our day for correction or completion. If Churchmen and ecclesiastics may care too much for the things about which they dispute, it seems undeniable that lawyers who need not even be Christians, may care for them too little; and if the Churchmen make a mistake in the matter, at least it is their own affair, and they may be more fairly made to take the consequences of their own acts than of other people's. A strong case, if a strong case were all that was wanted, might be made out for a change in the authority which at present pronounces in the last resort on Church of England doctrine.

But the difficulty is, not to see that the present state of things, which has come about almost by accident, is irregular and unsatisfactory, and that in it the civil power has stolen a march on the privileges which even Tudors and Hanoverians left to the Church, but to suggest what would be more just and more promising. A mixed tribunal, composed of laymen and ecclesiastics, would be in effect, as Mr. Joyce perceives, simply the present court with a sham colour of Church authority added to it; and he describes with candid force the confusion which might arise if the lawyers and divines took different sides, and how, in the unequal struggle, the latter might "find themselves hopelessly prostrate in the stronger grasp of their more powerful associates." His own scheme of a theological and ecclesiastical committee of reference, to which a purely legal tribunal might send down questions of doctrine to be answered, as "experts" or juries give answers about matters of science or matters of fact, is hardly more hopeful; for even he would not bind the legal court, as of course it could not be bound, to accept the doctrine of the ecclesiastical committee. He promises, indeed, on the authority of Lord Derby, that in ninety-nine cases out of a hundred the lawyers would accept the answer of the divines; but whatever the scandal is now, it would be far greater if an unorthodox judgment were given in flat contradiction to the report of the committee of reference.

As to a purely ecclesiastical Court of Appeal, in the present state of the Church both in England and all over the world, it ought to console those who must be well aware that here at least it is hardly to be looked for, to reflect how such courts act, after all, where they have the power to act, and how far things would have gone in a better or happier fashion among us if, instead of the Privy Council, there had been a tribunal of divines to give final judgment. The history of appeals to Rome, from the days of the Jansenists and Fénelon to those of Lamennais, may be no doubt satisfactory to those who believe it necessary to ascribe to the Pope the highest wisdom and the most consummate justice; but to those who venture to notice the real steps of the process, and the collateral considerations, political and local, which influenced the decision, the review is hardly calculated to make those who are debarred from it regret the loss of this unalloyed purity of ecclesiastical jurisdiction. And, as regards ourselves, it is true that an ecclesiastical tribunal would hardly have been ingenious enough to find the means of saying that Messrs. Wilson and Williams had not taught in contradiction to the doctrines of the English Church, and that they actually, under its present constitution, possessed the liberty which, under a different--and, as some people think, a better--constitution, they might possess. But it ought also to be borne in mind what other judgments ecclesiastical tribunals might have given. An ecclesiastical tribunal, unless it had been packed or accidentally one-sided, would probably have condemned Mr. Gorham. An ecclesiastical tribunal would almost certainly have expelled Archdeacon Denison from his preferments. Indeed, the judgment of the Six Doctors on Dr. Pusey, arbitrary and unconstitutional as it may be considered, was by no means a doubtful foreshadowing of what a verdict upon him would have been from any court that we can imagine formed of the high ecclesiastical authorities of the time. It undoubtedly seems the most natural thing in the world that a great religious body should settle, without hindrance, its own doctrines and control its own ministers; but it is also some compensation for the perversity with which the course of things has interfered with ideal completeness, that our condition, if it had been theoretically perfect, would have been perfectly intolerable.