Occasional Papers by R.W. Church

R >> R.W. Church >> Occasional Papers

Pages:
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 | 29

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 Fenelon 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.

It would be highly unwise in those who direct the counsels of the
Church of England to accept a practical disadvantage for the gain of a
greater simplicity and consistency of system. The true moral to be
deduced from the anomalies of ecclesiastical appeals seems to be, to
have as little to do with them as possible. The idea of seeking a
remedy for the perplexities of theology in judicial rulings, and the
rage for having recourse to law courts, are of recent date in our
controversies. They were revived among us as one of the results of the
violent panic caused by the Oxford movement, and of the inconsiderate
impatience of surprised ignorance which dictated extreme and forcible
measures; and as this is a kind of game at which, when once started,
both parties can play, the policy of setting the law in motion to
silence theological opponents has become a natural and favourite one.
But it may be some excuse for the legislators who, in 1833, in
constructing a new Court of Appeal, so completely forgot or underrated
the functions which it would be called to discharge in the decision of
momentous doctrinal questions, that at the time no one thought much of
carrying theological controversies to legal arbitrament. The experiment
is a natural one to have been made in times of strong and earnest
religious contention; but, now that it has had its course, it is not
difficult to see that it was a mistaken one. There seems something
almost ludicrously incongruous in bringing a theological question into
the atmosphere and within the technical handling of a law court, and in
submitting delicate and subtle attempts to grasp the mysteries of the
unseen and the infinite, of God and the soul, of grace and redemption,
to the hard logic and intentionally confined and limited view of
forensic debate. Theological truth, in the view of all who believe in
it, must always remain independent of a legal decision; and, therefore,
as regards any real settlement, a theological question must come out of
a legal sentence in a totally different condition from any others where
the true and indisputable law of the case is, for the time at least,
what the supreme tribunal has pronounced it to be. People chafed at not
getting what they thought the plain broad conclusions from facts and
documents accepted; they appealed to law from the uncertainty of
controversy, and found law still more uncertain, and a good deal more
dangerous. They thought that they were going to condemn crimes and
expel wrongdoers; they found that these prosecutions inevitably assumed
the character of the old political trials, which were but an indirect
and very mischievous form of the struggle between two avowed parties,
and in which, though the technical question was whether the accused had
committed the crime, the real one was whether the alleged crime were a
crime at all. Accordingly, wider considerations than those arising out
of the strict merits of the case told upon the decision; and the
negative judgment, and resolute evasion of a condemnation, in each of
the cases which were of wide and serious importance, were proofs of the
same tendency in English opinion which has made political trials,
except in the most extreme cases, almost inconceivable. They mean that
the questions raised must be fought out and settled in a different and
more genuine way, and that law feels itself out of place when called to
interfere in them. As all parties have failed in turning the law into a
weapon, and yet as all parties have really gained much more than they
have lost by the odd anomalies of our ecclesiastical jurisprudence, the
wisest course would seem to be for those who feel the deep importance
of doctrinal questions to leave the law alone, either as to employing
it or attempting to change it. Controversy, argument, the display of
the intrinsic and inherent strength of a great and varied system, are
what all causes must in the last resort trust to. Lord Westbury will
have done the Church of England more good than perhaps he thought of
doing, if his _dicta_ make theologians see that they can be much better
and more hopefully employed than in trying legal conclusions with
unorthodox theorisers, or in busying themselves with inventing
imaginary improvements for a Final Court of Appeal.

III

PRIVY COUNCIL JUDGMENTS[4]

[4]
_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.

Pages:
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 | 29