THE ECCLESIASTICAL COURT OF APPEAL.
THE change which took place so quietly yesterday fortnight in the proposal in relation to the highest Court of Ecclesi- astical Appeal,—namely, the substitution of the purely legal Appellate Court for the Judicial Committee of the Privy Council, in which, for ecclesiastical causes, the two Archbishops and the Bishop of London are included,—will make a real difference in the position of the State Church. Appar- ently the only people who at first regretted it were those who liked to see the Bishops degraded by being com- pelled to lend a kind of sanction to the decisions of a sub- stantially lay tribunal,—who thought, indeed, that by that means the clergy were displayed in their proper subserviency to the State, and who now fear that, as a oonsequence of the proposed change, the Clerical order will have a more plausible pretext for abjuring all responsibility for the latitudinarian policy of the Judicature and the Legislature. For the rest, the change appeared likely to excite quite too little remark till the letter of " Anglicanus " appeared in the Times of Thurs- day. The High Church observed, with a placid satisfaction, that the tests of Anglican orthodoxy,—so far as there are any,—would by this change be still more dearly dis- tinguished from the tests of legal comprehension. The lawyers and politicians noted with complacency the abolition of a sham and the reduction of the question of comprehension to one of the legal interpretation of articles of belief by pro- fessional men who are trained to construe a test involving penal consequences, with a view to discover rather what it was in- tended to exclude, than what it meant. Again, the friends of Diseetablishment were pleased to see the highest Ecclesiastical Court in the realm deprived of even the semblance of theological qualification, and thought that this would conduce to the down- fall of the Establishment. And on the other hand, the friends of a State Church flattered themselves that in future even new decisions as liberal as that in the case of "Essays and Reviews" would disturb the Church less, since no bishop's or archbishop's name would be connected with them, and that the Episcopal Bench would be left in peace, "with all faithful diligence to banish and drive away all erroneous doctrine contrary to God's Word," though doing so exclusively by the perfectly impotent means of preaching against it, which has no tendency at all to drive it away. Thus all parties appeared to be satisfied. Mr. Beresford Hope and Mr. Vernon Harcourt had clasped hands, Mr. Gladstone and Mr. Gathorne Hardy had kissed each other, over the amendment. Indeed, whatever else it effects, it certainly brings the form of ecclesiastical appeal nearer to the bare fact.— by eliminating an element in the existing Court of Ecclesiastical Appeal which has never been a very powerful element in it, —namely, the Episcopal vote as to what the judgment should be. No doubt the purely legal opinion has always and very properly prevailed in determining the exact value of exclusive formulEe. But no doubt also, as " Anglicanus " very justly points out in Thursday's Times, the tendency of reducing the Final Cloud of Ecclesiastical Appeal to purely legal con- stituents, will be to sever one more tie between the laity and the clergy, and to make the Episcopal Bench more likely than before to feel completely uncommitted to the principle of comprehension which the Judges will, of course, continue to enforce.
Now, we must say that we hold, with " Anglicanus," that this step is of very doubtful wisdom. We observed last week that the change would make it evident to Eng- land that "ecclesiastical law, so far as it affects the Church of England, is a law, indeed, that binds ecclesiastics, but that is administered solely by laymen, in the interests of laymen, and by laymen not infected with the ecclesiastical spirit." Now, will that be a salutary lesson, especially for the Clergy? Was not. every influence which made the clergy feel that their cause and that of the laity is identical, a wholesome influence for the Church ? and is not every influence which tends to widen the chasm between the laity and the clergy positively dangerous ? Again, is it not inevitable that the Bishops and Clergy generally will feel more at ease in disavowing the principles of comprehension enforced by the law, as not of their making and not agreeable to them, when they see the Final Court of Ecclesiastical Appeal purged of all clerical elements? Nobody who has watched the recent controversies can doubt that the two Archbishops have been rendered far more statesmanlike by their complicity, so to speak, in the judgments of the Final Court of Ecclesiasti- cal Appeal, and that that statesmanlike element in them has filtered down from them among their clergy. The effect of the proposed change must, as it seems to us, be to cut off this tempering influence over clerical opinion ; indeed, it is precisely on that account that the High-Church party rejoice in it. Moreover, if the Bishops are to be banished from the Court of Appeal because there is no specially clerical or theo- logical principle involved in the interpretation of the conditions imposed upon our clergy, would not the same argument tend to banish them from the House of Lords, and so to cut off another great and powerful tie between the mind of the laity and the mind of the clergy of the National Church ? No doubt it is acting in accordance with the bare facts of the case to exclude all theological bias from the Court which determines the exact interpretation of ecclesias- tical fornaulat, since the fairness shown in the interpreta- tion of them really depends on a judicial, and not on an opinionative frame of mind. But then, is it not of the first importance that the authorities of the Church should share this judicial frame of mind And is it not obvious that by excluding Bishops from the Judicial Bench, you also exclude the Judicial Bench from the Bishops,—in other words, cut them off from the advantage which at least the most important and influential of our prelates now really possess, of being to some extent imbued with the judicial spirit ? There can be no doubt that Archbishop Tait has profited greatly by his long experieni first as Bishop of London, then as Arch- bishop of .Clanterbury, in co-operating with the Judges in interpreting the Law of the Church,—that it has given an even increased tone of wise sobriety and temperate equity to all his public speeches. It is to this tone of Archbishop Tait's, in great measure at least, that we owe the unexpected calm- ness with which, first, the decision in the case of "Essays and Reviews," and then the Bennett decision, was taken by the English Clergy, both decisions being generally unpalatable to them, but coming recommended by a prelate in whom they had a very just confidence. It is to this also that we owe the general dissaste with which the clergy have beard Lord Shaftesbury's violent and mischievous harangue the other day, which did all that the most furious prejudice can do to diminish the well- founded aversion of Englishmen for the practice of Confession. We cannot help feeling that while clergymen were among the judges, even though their votes were quite rightly merged in the votes of the judicially-trained members of the Privy Council, the judges' spirit was to some extent at least among the clergymen, —being diffused by the leaders, and so leavening, at least partially, the whole lump of the clergy. The more carefully you declericalise the State, the more carefully you delaicise the clergy, and we doubt if either process is really a desirable one.
"Anglicanus" has pointed out another danger in the new plan. The Final Court of Appeal will have a great deal to do, and there is some reason to fear that the Judges detailed to try Ecclesi- astical causes will not always be the men of most commanding minds. In a Court containing the ArChbishops and the Bishop of London, it was almost necessary to have men of great emi- nence to secure full strength to the judicial element. Will it be so when there are no longer these dignitaries of the Church to reckon with ? Is there not a good deal of danger that the half-confessed feeling will be that the ecclesiastical work may be safely left to the weakest Judges of the Court? And if so, will not the clergy very soon begin to feel disloyal to the lay judges who so cavalierly lay down the law, and will not the tendency to Disestablishment be in that manner fomented It is perfectly certain that if the Court fell into what may be called a narrow lay groove,—and we must be pardoned for believing that lawyers and laymen are quite as capable of losing all distinct apprehension of the real beliefs of the Church, as clergymen are of losing all distinct apprehension of the manly equity of lay tribunals,—the sense of lay tyranny will very soon be as keen as the sense of ecclesiastical tyranny generally is in countries where the Church is at the top. Hitherto the rank of the ecclesiastics on the Judicial Com- mittee has secured the attention to these causes of our most weighty judges, and has secured also a tone of dignified im- partiality in dealing with theological questions that has done much to reconcile the clergy to the large comprehension of spirit displayed in the judgments. But we fear that a Court of Appeal in which there are no such prelates might deliver judgments of very different tone, in which there would be far less consideration for the average run of clerical opinion. [fit were so, the change would unquestionably foment the Disestablishrnent cry.
It may be said, however, why should we expect any judg- ments in a purely lay Court of Final Appeal inferior in tone to those which were delivered in the Court of Arches by such men as Dr. Lushington,—a great lawyer, but not by any means one of an ecclesiastical mind, and who yet, if any- thing, al ways satisfied the clergy, even better than the Judicial Committee of the Privy Council itself ? We reply, that in the case of a lawyer whose Court deals solely with ecclesiastical causes, there is far less danger of flimsy and impatient treatment, than in the case of a Court the very principle of which is to be that all the Judges are available for any class of causes ; and that even Dr. Lushington's judg- ments, had they not been subject to appeal in a Court includ- ing the Archbishops and the Bishop of London, would not have carried the weight they did. The weight attached to the judgment of a Court of First Instance, when it is unchal- lenged, ought not to be attributed exclusively to the personal authority of the judge, but in great measure to the authority of that Appeal Court to which the defeated party does not dare to appeal. It is argued that he must believe that there will be no reversal of the opinion of the Court below, or else he would appeal. We cannot believe, therefore, that the very great re- spect no doubt entertained for Dr. Lushington's judgmente, at all shows the probable efficiency of a Court of Final Appeal, of which the members will not necessarily be either spenially versed in ecclesiastical law, or even compelled by the presence of great ecclesiastics to depute the most eminent of their number to hear the ecclesiastical causes. On the whole,
we greatly distrust the tendency of the new change. We fear it will cat off a very healthy lay influence now directed upon the clergy, and that it may also diminish, in the Final Court of Appeal itself, that element of insight into clerical ideas which is necessary to ensure for its judgments the bond fide adherence of the Clergy. In both ways, the tendency may but too likely be in the direction of Disestablishment.
Previous page
