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.

In looking over the cases which have been brought together into a connected series, the first point which is suggested by the review is the great and important change in the aspect and bearing of doctrinal controversies, and in the situation of the Church, as affected by them, which the creation and action of this Court have made. From making it almost a matter of principle and boast to dispense with any living judge of controversies, the Church has passed to having a very energetic one. Up to the Gorham judgment, it can hardly be said that the ruling of courts of law had had the slightest influence on the doctrinal position and character of the Church. Keen and fierce as had been the controversies in the Church up to that judgment, how often had a legal testing of her standards been seriously sought for or seriously appealed to? There had been accusations of heresy, trials, condemnations, especially in the times following the Reformation and preceding the Civil War; there had been appeals and final judgments given in such final courts as existed; but all without making any mark on the public mind or the received meaning of doctrines and formularies, and without leaving a trace except in law reports. They seem to have been forgotten as soon as the particular case was disposed of. The limits of supposed orthodox belief revived; but it was not the action of judicial decisions which either narrowed or enlarged them. Bishop Marsh\'s Calvinists never thought of having recourse to law. If the Church did not do entirely without a Court of Final Appeal, it is simply a matter of fact that the same weight and authority were not attached to the proceedings of such a court which are attached to them now. But since the Gorham case, the work of settling authoritatively, if not the meaning of doctrines and of formularies, at any rate the methods of interpreting and applying them, has been briskly going on in the courts, and a law laid down by judges without appeal has been insensibly fastening its hold upon us. The action of the courts is extolled as being all in the direction of liberty. Whatever this praise may be worth, it is to be observed that it is, after all, a wooden sort of liberty, and shuts up quite as much as it opens. It may save, in this case or that, individual liberty; but it does so by narrowing artificially the natural and common-sense grounds of argument in religious controversy, and abridging as much as possible the province of theology. Before the Gorham case, the Formularies in general were the standard and test, free to both sides, about baptismal regeneration. Both parties had the ground open to them, to make what they could of them by argument and reason. Discipline was limited by the Articles and Formularies, and in part by the authority of great divines and by the prevailing opinion of the Church, and by nothing else; these were the means which each side had to convince and persuade and silence the other, and each side might hope that in the course of time its sounder and better supported view might prevail. But now upon this state of things comes from without a dry, legal, narrow stereotyping, officially and by authority, of the sense to be put upon part of the documents in the controversy. You appeal to the Prayer-book; your opponent tells you, Oh, the Court of Appeal has ruled against you there: and that part of your case is withdrawn from you, and he need give himself no trouble to argue the matter with you. Against certain theological positions, perhaps of great weight, and theological evidence, comes, not only the doctrine of theological opponents, but the objection that they are bad law. The interpretation which, it may be, we have assumed all our lives, and which we know to be that of Fathers and divines, is suddenly pronounced not to be legal. The decision does not close the controversy, which goes on as keenly and with perhaps a little more exasperation than before; it simply stops off, by virtue of a legal construction, a portion of the field of argument for one party, which was, perhaps, supposed to have the strongest claim to it. The Gorham case bred others; and now, at last, after fifteen years, we have got, as may be seen in Messrs. Brodrick and Fremantle\'s book, a body of judicial dicta, interpretations, rules of exposition, and theological propositions, which have grown up in the course of these cases, and which in various ways force a meaning and construction on the theological standards and language of the Church, which in some instances they were never thought to have, and which they certainly never had authoritatively before. Besides her Articles and Prayer-hook, speaking the language of divines and open to each party to interpret according to the strength and soundness of their theological ground, we are getting a supplementary set of legal limitations and glosses, claiming to regulate theological argument if not teaching, and imposed upon us by the authority not of the Church or even of Parliament but of the Judges of the Privy Council. This, it strikes us, is a new position of things in the Church, a new understanding and a changed set of conditions on which to carry on controversies of doctrine; and it seems to us to have a serious influence not only on the responsibility of the Church for her own doctrine, but on the freedom and genuineness with which questions as to that doctrine are discussed. The Court is not to blame for this result; to do it justice, it has generally sought to decide as little as it could; and the interference of law with the province of pure theology is to be rather attributed to that mania for deciding, which of late has taken possession pretty equally of all parties. But the indisputable result is seen to be, after the experience of fifteen years, that law is taking a place in our theological disputes and our theological system which is new to it in our theological history; law, not laid down prospectively in general provisions, but emerging indirectly and incidentally out of constructions and judicial rulings on cases of pressing and hazardous exigency; law, applying its technical and deliberately narrow processes to questions which of course it cannot solve, but can only throw into formal and inadequate, if not unreal, terms; and laying down the limits of belief and assertion on matters about which hearts burn and souls tremble, by the mouth of judges whose consummate calmness and ability is only equalled by their profound and avowed want of sympathy for the theology of which their position makes them the expounders and final arbiters. A system has begun with respect to English Church doctrine, analogous to that by which Lord Stowell made the recent law of the sea, or that by which on a larger scale the rescripts and decrees of the Popes moulded the great system of the canon law.

This is the first thing that strikes us on a comparative survey of this set of decisions. The second point is one which at first sight seems greatly to diminish the importance of this new condition of things, but which on further consideration is seen to have a more serious bearing than might have been thought. This is, the odd haphazard way in which points have come up for decision; the sort of apparent chance which has finally governed the issue of the various contentions; and the infinitesimally fine character of the few propositions of doctrine to which the Court has given the sanction of its ruling. Knowing what we all of us cannot help knowing, and seeing things which lawyers and judges are bound not to allow themselves to see or take account of, we find it difficult to repress the feeling of amazement, as we travel through the volume, to see Mr. Gorham let off, Mr. Heath deprived, then Dr. Williams and Mr. Wilson let off, and to notice the delicate technical point which brought to nought the laborious and at one time hopeful efforts of the worthy persons who tried to turn out Archdeacon Denison. And as to the matter of the decisions, though undoubtedly dicta of great importance are laid down in the course of them, yet it is curious to observe the extremely minute and insignificant statements on which in the more important cases judgment is actually pronounced. The Gorham case was held to affect the position of a great party; but the language and theory actually examined and allowed would hardly, in legal strictness, authorise much more than the very peculiar views of Mr. Gorham himself. And in the last case, the outside lay world has hardly yet done wondering at the consummate feat of legal subtlety by which the issue whether the English Church teaches that the Bible is inspired was transmuted into the question whether it teaches that every single part of every single book is inspired. It might seem that rulings, of which the actual product in the way of doctrinal propositions was so small, were hardly subjects for any keen interest. But it would be shortsighted to regard the matter in this way. In the first place, whatever may have happened as yet, it is manifestly a serious thing for Church of England doctrine to have been thrown, on a scale which is quite new, into the domain of a court of law, to lie at the mercy of the confessed chances and uncertainties of legal interpretation, with nothing really effective to correct and remedy what may possibly be, without any fault in the judges, a fatally mischievous construction of the text and letter of her authoritative documents. In the next place, no one can fail to see, no one in fact affects to deny, that the general result of these recent decisions, capricious as their conclusions look at first sight, has been to make the Formularies mean much less than they were supposed to mean. The tendency of every English court, appealed to not as a court of equity but one of criminal jurisdiction, is naturally to be exacting and even narrow in the interpretation of language. The general impression left by these cases is that the lines of doctrine in the English Church are regarded by the judicial mind as very faint, and not much to be depended upon; and that these judgments may be the first steps in that insensible process by which the unpretending but subtle and powerful engine of interpretation has been applied by the courts to give a certain turn to law and policy; applied, in this instance, to undermine the definiteness and certainty of doctrine, and in the end, the understanding itself which has hitherto existed between the Church and the State, and has kept alive the idea of her distinct basis, functions, and rights.

This is the view of matters which arises from an examination of the proceedings contained in this volume. What is the argument urged in the Historical Introduction to justify or recommend our acquiescence in it? It seems to us to consist mainly in a one-sided and exaggerated statement of the Supremacy claimed and brought in by Henry VIII., and of the effect in theory and fact which it ought to have on our notion of the Church and of Church right. The complaint of the present state of things is, that those who may be taken to represent the interests of the Church in such a matter as the character of her teaching are practically excluded from having any real influence in the decision of questions by which the character of that teaching is affected. The answer is that she has no right to claim a separate interest in the matter, and that the doctrine of the Royal Supremacy was meant to extinguish, and has extinguished, any pretence to such a claim. The animus which pervades the work, and which is not obscurely disclosed in such things as footnotes and abridgments of legal arguments, is thus given—more freely, of course, than it would be proper to introduce in a book like this—in some remarks of Mr. Brodrick, one of the editors, at a recent discussion of the question of Ecclesiastical Appeals in a committee of the Social Science Association. He is reported to have spoken as follows:—

The Church of England being established by law, could not be allowed any independence of action; and those who wished for it were like people who wanted to have their cake and eat it. As to the Privy Council, he had never heard its decisions charged with error. What was complained of was that it had declined to take the current opinions of theologians and make them part of the Thirty-nine Articles. There was no need whatever for the Privy Council to possess any special theological knowledge. The only case where that knowledge was necessary was when it was alleged that doctrines had been held in the Church without censure. That was a case in which considerable theological lore was required; but it was within the province of counsel to supply it. Divines had now discovered, what lawyers could have told them long ago, and what he knew some of them had been told—namely, that it would not do to treat the Thirty-nine Articles as penal statutes; because, if that were done, a coach might be easily driven through them. If they had wished to maintain the authority of the Articles, they would have done best to have kept quiet.

The present Court of Appeal is deduced, in the Historical Introduction, as a natural and logical consequence, from Henry VIII.\'s Supremacy. Undoubtedly it is scarcely possible to overstate the all-grasping despotism of Henry VIII., and if a precedent for anything reckless of all separate rights and independence should be wanted, it would never be sought in vain if looked for in the policy and legislation of that reign. So far the editors are right; the power over religion claimed by Henry VIII. will carry them wherever they want to go; it will give them, if they need it, as a still more logical and legitimate development of the Supremacy, the Court of High Commission. Only they ought to have remembered, as fair historians, that even in the days of the Supremacy the distinct nature and business of the Church and of Churchmen was never denied. Laymen were given powers over the Church and in the Church which were new; but the distinct province of the Church, if abridged and put under new control, was not abolished. Side by side with the facts showing the Supremacy and its exercise are a set of facts, for those who choose to see them, showing that the Church was still recognised, even by Henry VIII., as a body which he had not created, which he was obliged to take account of, and which filled a place utterly different from every other body in the State. Henry VIII. played the tyrant with his Churchmen as he did with his Parliament and with everybody else; and Churchmen, like everybody else, submitted to him. But the "Imperialism" of Henry VIII., though it went beyond even the Imperialism of Justinian and Charlemagne in its encroachments on the spiritual power, as little denied the fact of that power as they did. He recognised the distinct place and claims of the spiritualty; and, as we suppose that even the editors of this volume hardly feel themselves bound to make out the consistency of Henry, they might have spared themselves the weak and not very fair attempt to get rid of the force of the remarkable words in which this recognition is recorded in the first Statute of Appeals (24 Henry VIII. c. 12). The words would, no doubt, be worth but little, were it not that as a matter of fact a spiritualty did act and judge and lay down doctrine, and even while yielding to unworthy influence did keep up their corporate existence.

But when the ecclesiastical legislation of Henry VIII. is referred to, not merely as the historical beginning of a certain state of things which has undergone great changes in the course of events, but as affording a sort of idea and normal pattern to which our own arrangements ought to conform, as supplying us with a theory of Church and State which holds good at least against the Church, it seems hard that the Church alone should not have the benefit of the entire alteration of circumstances since that theory was a reality. Those who talk about the Supremacy ought to remember what the Supremacy pretended to be. It was over all causes and all persons, civil as well as ecclesiastical. It held good certainly in theory, and to a great extent in practice, against the temporalty as much as against the spiritualty. Why then are we to invoke the Supremacy as then understood, in a question about courts of spiritual appeals, and not in questions about other courts and other powers in the nation? If the Supremacy, claimed and exercised as Henry claimed and exercised it, is good against the Church, it is good against many other things besides. If the Church inherits bonds and obligations, not merely by virtue of distinct statutes, but by the force of a general vague arbitrary theory of royal power, why has that power been expelled, or transformed into a mere fiction of law, in all other active branches of the national life? Unless the Church is simply, what even Henry VIII. did not regard it, a creation and delegate of the national power, without any roots and constitution of its own, why should the Church be denied the benefit of the common sense, and the change in ideas and usage, which have been so largely appealed to in civil matters? Why are we condemned to a theory which is not only out of date and out of harmony with all the traditions and convictions of modern times, hut which was in its own time tyrannous, revolutionary, and intolerable? Arguments in favour of the present Court, drawn from the reason of the thing, and the comparative fitness of the judges for their office, if we do not agree with them, at least we can understand. But precedents and arguments from the Supremacy of Henry VIII. suggest the question whether those who use them are ready to be taken at their word and to have back that Supremacy as it was; and whether the examples of policy of that reign are seemly to quote as adequate measures of the liberty and rights of any set of Englishmen.

The question really calling for solution is—How to reconcile the just freedom of individual teachers in the Church with the maintenance of the right and duty of the Church to uphold the substantial meaning of her body of doctrine? In answering this question we can get no help from this volume. It simply argues that the present is practically the best of all possible courts; that it is a great improvement, which probably it is, on the Courts of Delegates; and that great confidence ought to be felt in its decisions. We are further shown how jealously and carefully the judges have guarded the right of the individual teacher. But it seems to us, according to the views put forward in this book, that as the price of all this—of great learning, weight, and ability in the judges—of great care taken of liberty—the Church is condemned to an interpretation of the Royal Supremacy which floats between the old arbitrary view of it and the modern Liberal one, and which uses each, as it happens to be most convenient, against the claim of the Church to protect her doctrine and exert a real influence on the authoritative declaration of it. We all need liberty, and we all ought to be ready to give the reasonable liberty which we profess to claim for ourselves. But it is a heavy price to pay for it, if the right and the power is to be taken out of the hands of the Church to declare what is the real meaning of what she supposes herself bound to teach.