THE CIVIL POWER LN ITS RELATION TO THE CHURCH; OR, THE SWORD AND THE KEYS.*

WHEN a book starts with a petitio principii, and yet contains a good deal of valuable information well arranged, it is difficult in the limited space of which we can avail ourselves to convey an estimate of its actual value.

In this instance, the subject under discussion is the present system of ecclesiastical appeal ; but throughout the book Mr. Joyce assumes, 1st, that, even in the interests of the English Church, spiritual persons ought to decide in spiritual causes ; 2ndly, that the most important function of the final Court is the decision of cases of doctrine. Whatever be the truth as to the comparative importance of the cases, the fact is that doctrine is less often the subject of argument in that Court than any other kind of question which comes before it. Hardly five per cent. of ecclesiastical cases are on points of doctrine. But even when doctrinal cases do occur, the existing formularies afford a legal and statutable statement of the doctrines of the Church of England, and so ecclesiastical cases resolve themselves into merely legal questions as to the conformity of the preaching and practice of the salaried officers of the Church of England with her doctrines and ordinances, "the former," in the words of Lord Romilly, "being fixed and immutable, the latter equally fixed until altered by statute."

The function of the Final Court, then, is simply to interpret existing and authoritatively expressed law. But it is contended that, in close analogy with the common law, such a procedure in ecclesiastical affairs must tend to entrust to that Court the power of constructing new doctrine. And it is also objected that a civil court is not competent to interpret ecclesiastical law. To these two objections, taken together, we may reply, first, that it must be clear to any one who is able and willing to reason dispassionately on this subject that those men who have made it the work of their lives to attain the power of giving correctly the interpretation and application of general laws in particular and constantly varying cases, must be the most thoroughly qualified persons for such an office, whether the laws to be interpreted and applied regulate expressions of the doctrines of particular religious sects, or the rules of the Stock Exchange, the religious rites and : monial observances of different divisions of the Christian Church, or the regulations and customs of an Australian jockey club.

And if in common law the result of interpretation has not been to destroy or paralyze the force of laws made for a different state of society, but simply to adapt them to present necessities, we may justly hope that even on doctrinal or ceremonial points the dispassionate habit of mind which is a safeguard to the intention of the secular law will no leas safely preserve the intention of the laws which relate to the preaching and practice of the English Church. In ecclesiastical matters, whether of doctrine or ritual, as in any other technical class of questions, members of the particular church whose cause is before the court might be admitted to give evidence (and so far "cuique in suet arse credendum"), but not judgment, for it is essential that interpretation and application of the law be left to legal persons, as a protection against that development of which we have seen the fruits in the Church of Rome, and which is the necessary result of intrusting doctrine to a hierarchy. In the first two chapters of the book Mr. Joyce gives an account of our actual position at the present time, and a general sketch of the methods by which that position has been reached, sarcasm being generously poured on the composition of the Judicial Committee with regard to Ecclesiastical Appeals. Then follows an account of the changes effected by the Act for Restraint of Appeals (24 Henry VIII., cap. 12, A.D.1532, 0. S.), and the Clergy Submission Act (25 Henry VIII. cap. 19), with remarks on the manner in which the Courts before whom cases have been tried have dealt with these statutes, and with the opinions of subsequent text-writers on them. It will be noticed in connection with this part of the subject that the expressions " king's causes," " causes touching or concerning the king," &c., are frequent, and that such causes were to be decided by an ecclesiastical court without further appeal appears to be considered a great point to have made. But though, of course, thole phrases do not exclusively apply to cases concerning royal matrimony, hardly any questions were ever dealt with finally by such Ecclesiastical Courts of equal importance with those of Catherine of Arragon, Anne Boleyn, and Ann of Cleves, in respect of which causes perhaps theless said the better for the credit of the Parliament and convocations of that reign. And indeed it appears that the seemingly triumphant conclusion that the Upper Houses of the Convocations were by statute courts of final appeal applies only to causes touching the king, and that in other causes the archbishop's courts having been made final by the Statute of Appeals in 1533, continued so for one year, for appeal to the king in Chancery was enjoined by the Clergy Submission Act in 1534.

At the conclusion of his review of this portion of the history our author gathers :

" (1) That at the first institution of the Appeal to the Crown (25 Henry VIII., cap. 19), it was intended (in the Reformatio Legum) that in cases of doctrine, the cause by Royal order should go either to a provincial synod or to three or four delegated bishops ; (2) that this Court of Delegates sank into disuse during the tyrannical usurpations of the Star Chamber and High Commission ; (3) that after their annihilation, when the Court of Delegates was revived from lapse, the principles of its original constitution were forgotten ; (4) that thus instances of doctrinal cases having been carried in later times before lay delegates may be quoted, (5) but that these are so few, being only four at the most, as under the conditions of the case to afford no valid precedent for a continuance of a like practice." But the Reformatio Legum never became law, and whatever evidence may be drawn from subsequent events is in favour of the present plan, as in conformity with the intention of the Legislature which founded the English Church.

Three hundred years pass unnoticed, and Mr. Joyce resumes the attack at the point where, in 1832, the appeal to the King in Council was substituted by 2 and 3 William IV., cap. 92, for

appeal to the King in Chancery. Here he indulges in some satire on the "grave blunder," the "constitutional miscarriage," the " unhappy mischance" by which that change was effected. And he urges as the reason for regretting the change, that if in the case of appeals a Committee of Council were formed in each case pro hcic vice, the result would have been the statutable revival of the Star Chamber for ecclesiastical causes. In enlarging on the accidental character of the present system, he really attaches some importance to the account which ascribes its origin to the verbiage of the individual draughtsman to whom the drawing of 3 and 4 William IV., cap. 41, was committed. But if our readers will refer to the Act and the context of Bishop Blomfield's words, quoted by Mr. Joyce, it will be plain to them, first, that the reason for enumerating the Courts specified

in that Act which are Courts in which chiefly cases connected with foreign interests were tried, does not apply to ecclesiastical

appeals ; secondly, that the recital of 2 and 3 William IV., cap.

92, and the reference to 25 Henry VIII., cap. 19, show that it was present to the minds of those who drew and dealt with the Act that ecclesiastical causes would be affected by it ; thirdly, that the gist of Bishop Blomfield's speech (June 3rd, 1850) was really that the doctrinal kind of ecclesiastical questions occurred so very rarely for decision to the Final Court, that the contingency of such appeals did not occur as an important consideration with regard to this measure. So that it is not the fact that the present system owes its origin to an unfortunate blunder or accident. And after all, its effect is merely to render complete the appeal to the Queen from all subordinate jurisdictions within her dominions, she being "in all causes, as well ecclesiastical as civil, within these her dominions supreme." This, by the way, Mr. Joyce does not deny (perhaps he has used that very expression ere now in the bidding prayer before a sermon), but he takes occasion to lament the use of the Anglo-Saxon version of it, viz., " Head of the Church."

"The objections against the present Court of Final Appeal in causes ecclesiastical are so numerous, that it is really somewhat perplexing to decide on which first to fasten." These are the opening words of the first of five chapters (vii. to xi.) devoted to adverse criticism of the Court of Final Appeal. However, a method of attack is suggested to Mr. Joyce by a sentence from a certain " volume which has appeared under the sanction of very high ecclesiastical authority," viz., the Collection of Judgments of the Judicial Committee of Privy Council, edited by Brodrick and Fremantle, with a preface by Dr. Tait, then Bishop of London. In the preface the following words occur :—" If in its constitution such a court contravenes no great principle, religious, ecclesiastical, or political, and if it does its work well," &c. Mr. Joyce accordingly endeavours to prove that " the Court contravenes great principles, religious, ecclesiastical, and constitutional ;" that it is "incompetent for the discharge of its functions," that " its principles of proceeding are inadequate and its methods unsatisfactory," and, finally, that the whole system is a solecism.

With regard to the religious principles, the whole point lies in the question already discussed whether construction is the necessary consequence of interpretation ; and if so, whether not only one office, but both, are better entrusted to spiritual or legal persons. The words of Scripture, the acts of primitive councils, the opinions of divines, and even the profession of the State are adduced in support of the principle of Apostolical succession, which Mr. Joyce says is directly contravened by this Court, inasmuch as the Church is " not free in her judgments." But if there is one predominating tendency manifested by the method of dealing with ecclesiastical subjects which has been adopted by the Courts of law, it is not a tendency to restrict the freedom of " the Church " to teach " the Word," but to widen and increase the limits within which that teaching may be carried on.

By the precedent drawn from the Council of Jerusalem, attention is directed to the emphasis with which Mr. Joyce wishes to lay down " the principle that questions of doctrine and spiritual discipline should be decided by the ordained teachers of the Word, and by them only," laymen therefore being excluded. As a matter of fact, this is very questionable. Aud even if it be so, the reflection that whereas that Council met only seventeen years after the crucifixion in an unestablished church, now, on the other hand, more than seventeen centuries have elapsed since then, and the church we have to deal with is established, To not appear to have occurred as relevant to the question. To the remark that it is idle to introduce the question of supremacy, we must take leave to reply that the question of supremacy is the whole of the issue. It is asked what the State professes to hold on Apostolical succession, we reply, nothing ; the State, for the good of the people, protects the interests of that portion of the Christian Church which appears likely to be most useful in this country for the purposes of civilization and good government. The State, as such, has no creed. With regard to the "principles ecclesiastical," we have only to recall once more the fact that the interpretation of the ecclesiastical law is (in Cases of appeal, i.e., of default of justice in ecclesiastical Courts) entrusted to those who are most capable of adhering closely to the spirit of the law, placed before them for interpretation, and that this arrangement is made for the express purpose of preserving intact the existing principles of ecclesiastical law.

Constitutional principles are next invoked in support of the thesis of the book, and here we have again to join issue with the author. The Church we have to deal with in this question is the English Reformed Church as established by English statute law, and that certainly not earlier than the reign of Henry VIII. Mr. Joyce will hardly be prepared to deny that Queen Elizabeth, in whose time (to say nothing of Henry VIII.) the Establishment was made complete, was recognized by the National Church as supreme in all causes ecclesiastical as well as civil. That having been the case when our Church was first united as National in the Constitution with the State, it is no overstatement of the case with regard to the Church of England to say that the hearing of appeals by the Crown was an "original prerogative." Mr. Joyce does not seem to have realized that the Protestant Church of England cannot avail herself of the advantages of establishment, and at the same time enjoy the complete freedom from State control which the other parte of the Christian Church in England have purchased to themselves by complete independence of State support. If connection between Church and State is constitutional, the ultimate control of both by the power which is supreme in both is constitutional also.

It only remains to direct attention to chapter xii., which gives an interesting account of the systems of ecclesiastical appeal in Greece, Russia, Belgium, France, Scotland, and the United States. They assume in Mr. Joyce's eyes a " couleur de rose" from the contrast presented to them by the English system, in which " the only exception to the application of the principle of equal justice to all religions bodies " is the case of the established and endowed National Church. To the natural concluding question, " What is to be substituted for the present Court ?" our author appears to intend to answer, "A jury of Divines or the assembling of Synods." But while there is a National Church of England, it would be impossible to impanel a jury of Divines who would not either represent only one or two phases of opinion, or else be reduced to such negative and superficial points of agreement as to contribute nothing towards the solution of the questions at issue ; while with regard to synods, it is becoming yearly more impossible to convene a clerical assembly which could be accepted by the English nation as adequately representative of its Church.

As, however, we do not intend to detract from the beneficial effect of so laborious an investigation of the facts of the case as that of Mr. Joyce, we can without hesitation recommend the book as full of facts and information, particularly on account of its appendix, which is a collection of the statutes bearing on the Church, and of the judgments of the Privy Council, delivered subsequently to the publication " under very high ecclesiastical authority" of the volume above mentioned. But ab protest against the legitimacy of his conclusions, and instead of lamenting the existence of the Established Church, we are thankful for what Coleridge calls the "blessed accident" that it is Christian and Protestant.