THE LAW OF SPIRITUAL TRIBUNALS.
THE great contest is now close at hand. A few more weeks, and that mysterious scheme for the reform of the Final Court of Appeal in ecclesiastical causes will be unmasked. As yet, it has been hinted at, and praised, and proved to be neces- sary ; but the profane world has never been allowed to know what it is. Whether you show that ecclesiastics make bad judges, or that it would be unjust to expel a clergyman from the Church by ex post facto episcopal legislation, the result is always the same—your argument need not be answered be- cause the reformers do not propose that scheme. But while we wait for the revelation which the High-Church leaders promise us, it is very desirable, as Archdeacon Denison says, that the facts of the question should not be misrepresented. Before we reform the Judicial Committee of the Privy Council, let us at least understand what it is, and what new evils it has scattered over a smiling land. We therefore beg to con- gratulate the Archdeacon on the timely publication of the ecclesiastical judgments of the Judicial Committee, with a preface by the Bishop of London, which has recently appeared in the Times, and a historical introduction by Mr. Fremantle, one of the editors. Any person, however unlearned, may now by a few hours' reading ascertain " the facts," and it is to be hoped that the advocates of change will profit by the oppor- tunity. Whether the tribunal established by the Acts of 1832 and 1833 be or be not a satisfactory one, it is now pretty clear that the spiritual element is as well represented there as it ever was in the old Court of Delegates. Whatever colour there may be for the notion that questions of doctrine were ever decided by a purely spiritual court is to be found in a blunder of Bishop Gibson, whose statement, erroneous as it is, has been altered by eager controversialists into far more than he said. What is important, however, is not to establish Bishop Gibson's errors or those of his Anglican followers, but the unbroken policy of the Church of England. The farther we go back in history the less ground is there for the preten- sions of the Clerical party. In Saxon times there seem to have been no separate ecclesiastical courts at all, and even the Norman Sovereigns who severed them from the Civil Courts sturdily opposed appeals to Rome. Such matters were decided by the King with the advice of the lay and spiritual peers. From the time of John to the. Reformation the Popes were no doubt powerful enough to secure the recognition of their claim to appellate jurisdiction, but it was the constantsource of com- plaint. When the 25th Henry VIII., c. 19., prohibited appe..: 3 to Rome and transferred the Papal authority to the King in Chancery, or, in other words, to a Commission of Delegates appointed by the Chancellor, the Commissioners seem to have been sometimes prelates, but commonly Doctors of Civil Law, who were not necessarily ecclesiastics. The Act of Queen Mary which reconciled the kingdom to Rome stigmatized the judgments of the Delegates as proceeding from " lay authority," and at least in one case in the reign of Elizabeth the Commission was directed to two common law judges, to- gether with certain civilians. In fact, however, we know very little about the constitution of the Commissions of Delegates down to 1619, but for the twenty years following we have full information, and there is no ground for supposing that there was any sudden change in the practice at that period. There were 1,080 appeals between 1619 and 1639. In only two of them did Bishops sit alone, in only 24 did they sit alone with civilians, who by this time, however, would be laymen,—and in only about 90 were they present at all. On the other hand, the judges, or sometimes lay peers, were included in 182 commissions, and in 872 civilians only composed the Court. If in reply to these facts it is contended that causes involving doctrine went commonly before the Court of Star Chamber, it should be remembered that that Court also included laymen among its judges. After the Restoration it is certain that a mixed Court became the rule, the episcopal element gradually decreasing in strength, while the common- law element gained what it lost. Bishops have sat only in five appeals since 1754. Even the Commission of 1830, which included five bishops—among others Archbishop Howley and Bishops Kaye and Blomfield—reported that the Delegates in ordinary cases were three judges and three civilians, to whom were added in special cases three peers, who were not always bishops. And in the only three cases in which a clerk was tried before the Court of Delegates for heresy between 1688 and the abolition of that Court in 1832, the spiritual element was always in a minority. In " Salter v. Davis," 1692, there were three bishops to three judges and three civilians; and in "Havard v. Evanson," 1777, there were no bishops at all, only judges and doctors. The notion that the Court of Delegates was in any sense a clerical tribunal, or even that the lay element was less powerful in it than in the Judicial Com- mittee of the Council, finds no support whatever in " the facts " of history, and it is well that just now we Englishmen, who love to walk in the light of precedent, should be reminded of it.
The truth is that the desire to have causes involving doc- trine decided by clerical judges is a mere novelty. Traces of it may indeed be found at all times among the clergy, but it never became a party cry until after the resuscitation of High- Church notions by Dr. Newman and his followers. When the Judicial Committee was established in 1833 Bishop Blom- field, who some twenty years later was the mouthpiece of the clerical malcontents, breathed no syllable of opposition, and indeed he had been a member of the Commission which recom- mended the transfer of the jurisdiction of the Delegates to the Privy Council. No one denies that the transfer has been in every respect a change for the better where doctrine is not involved in the decision, and where doctrine is involved it will be hard to show that the transfer is a change for the worse. Of the two last charges of heresy which came before the Delegates we know that in one there was no decision at all, in the other the accused was acquitted. And the one alteration in the constitution of the Final Court of Appeal for which the Act of 1833 prepared the way, was that whereas for the last half century the court had beenpurely lay, it thenceforth became the practice to summon one or more of the Episcopal Councillors to act as assessors. Practically the spiritual element was revived, theoretically it was reduced or promoted from the position of a judge to that of an assessor. In 1840, however, the Episcopal Councillors were again made judges in appeals under the Church Discipline Act, and it was provided that at least one of them should be present. Whether the difference is very material is doubtful, and Dr. Tait in his preface in no way intimates that his opinion had any less weight in "Liddell v. Westerton" when he sat as assessor, than in the cases of the Essayists and Reviewers when he sat as a judge. But whatever be the reform proposed in the coming session, whether the judges are turned into assessors or the assessors into judges? whether the Bishops are to swamp the Judicial Committee or be totally excluded from it, we hope that its promoters will be consistent and reform all courts of ecclesiastical appeal alike. Cases of quare impedit, often involving the gravest questions of doctrine, are in the cognizance of the Courts of Common Law, and the appeal from them lies to the House of Lords. Will the new reformers give all the Bishops votes in such appeals or compel the Law Lords to accept their certificate of doctrine? But in either case who can contemplate without emotion Mr. Disraeli and Archdeacon Denison conspiring to lay their sacrilegious hands on the bulwark of the Constitu- tion ?
The Court of Final Appeal partakes therefore of the spiritual element substantially as much as it has ever done since the Reformation. If it is to be reformed, it mast be on grounds of expediency. But it can hardly be contended that if the question to be decided when a clergyman is accused of heresy is to remain unaltered the Court can be better composed than it is. While the question is, has the accused impugned the doctrine of the Established Church, the answer must be found by ascertaining the meaning of the Articles, formularies, and rubrics, of written documents which it is the especial province of lawyers to construe. Theologians are needed only to supply such external and historical facts as are necessary for the com- prehension of the subject-matter of the documents and the meaning of the technical words employed, and that object is at present fully secured. What seems to be desired is that where the Established Church teaches nothing authoritatively there shall be a declaration of the opinion of the Universal Church, or of the Church of England, if that can be held to exist as a metaphysical entity distinct from the Church established by law. Allowing that the Bishops or any body else can possibly ascertain the opinion of either the one or the other, what relevancy could the declaration have ? The Judicial Committee has never pretended to de- termine anything but the tenets of the Church established by law which must be found in the formularies which the law has sanctioned, and the clergy have never bound themselves to anything more. It has been argued, however, that the judges in the Civil Courts do in fact legislate when they assume to declare the common law in cases for which there is no precedent, and in the same way why should not judges in the Ecclesiastical Courts declare the law of the Church ? But there is no analogy whatever between the two cases. In the first place judges never do declare the common law so as to create new crimes, which is what the Judicial Committee is asked to do. In the next place, when A and B are quarrelling over an estate or a sum of money, the dispute must be decided somehow. If there is no precedent, the judge must ask himself what is just between man and man. If this principle is to be followed, the Court of Appeal, where the Articles and formularies are silent, will have to decide what is truth. The voice of the Universal Church is not neces- sarily truth, any more than the voice of the mercantile world is necessarily justice. Even Mr. Keble, with the fatality which seems to attend clergymen who meddle with law, fancies that "immemorial usage" enters into the definition of "common law." It has no more to do with it than with that of the Law of Moses. The definition of the common law is " right reason," or " the perfection of human reason," and when lawyers talk about declaring the common law they simply mean that in the absence of a precedent they do justice between man and man in a particular dispute.
Of course if Parliament shall enact that all clergymen shall in future be bound not to contradict the undeclared opinion of the Bench of Bishops or of a majority of their Lordships, it will not be unjust on the assumption that the opinion of the Bishops is always absolute truth. Even then, however, all clergymen already in orders ought to be exempted from the operation of the Act, and we fear that conscientious men will not be very eager to enter the ministry. But the attempt to declare truth authoritatively is absolutely absurd unless the authority which declares it is believed to be infallible, and the difficulty is precisely the same if the attempt be confined to the ascertainment of what has been gene- rally thought to be true for the last eighteen hundred years. The proposition of the High-Church reformers can only alter the law by reimposing on the clergy that yoke which our fathers broke at the Reformation. A man may bind himself not to dispute a written document, but he cannot bind himself not to contradict what has never been definitely formulated. Even the Church of Rome does not ask that of her clergy. If these critics of the Judicial Committee seek to make law judicially, it is only because they have no chance of making it to their minds by the ordinary, course of legislation. A minority of the Church which includes a majority of the clergy wants to impose its will on the majority by the transparent device of giving legislative power to a court of clerical judges. Mould their proposition how you will, to that complexion it must come at last, and it is satis- factory to know on the authority of one of our m)st eminent prelates that the scheme is as little consonant with historical precedent as with justice and reason. Let us see whether the proposed innovation will obtain the support even of the House of Lords.
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