Chapter 4

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 Why are we condemned to a theory which is not only out of date and out of harmony with all the traditions and convictions of modern times, hut which was in its own time tyrannous, revolutionary, and intolerable?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.

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 admirably:--

[6] 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 should.

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:--