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 Fénelon 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.