SIR JOHN COLERIDGE ON THE PURCHAS CASE[5]

  [5]
  Remarks on Some Parts of the Report of the Judicial Committee in
  the Case of "Elphinstone against Purchas." A Letter to Canon Liddon,
  from the Right Hon. Sir J.T. Coleridge. Guardian, 5th April 1871.

No one has more right to speak with authority, or more deserves to be listened to at a difficult and critical moment for the Church, than Sir J.T. Coleridge. An eminent lawyer, and a most earnest and well-informed Churchman, he combines in an unusual way claims on the attention of all who care for the interests of religion, and for those, too, which are so deeply connected with them, the interests of England. The troubles created by the recent judgment have induced him to come forward from his retirement with words of counsel and warning.

The gist of his Letter may be shortly stated. He is inclined to think the decision arrived at by the Judicial Committee a mistaken one. But he thinks that it would be a greater and a worse mistake to make this decision, wrong as it may be, a reason for looking favourably on disestablishment as a remedy for what is complained of. We are glad to note the judgment of so fair an observer and so distinguished a lawyer, himself a member of the Privy Council, both on the intrinsic suitableness and appropriateness of the position[6] which has been ruled to be illegal, and on the unsatisfactoriness of the interpretation itself, as a matter of judicial reading and construction. A great deal has been said, and it is plain that the topic is inexhaustible, on the unimportance of a position. We agree entirely—on condition that people remember the conditions and consequences of their assertion. Every single outward accompaniment of worship may, if you carry your assertion to its due level, be said to be in itself utterly unimportant; place and time and form and attitude are all things not belonging to the essence of the act itself, and are indefinitely changeable, as, in fact, the changes in them have been countless. Kneeling is not of the essence of prayer, but imagine, first prohibiting the posture of kneeling, and then remonstrating with those who complained of the prohibition, on the ground of postures being unimportant. It is obvious that when you have admitted to the full that a position is in itself unimportant, all kinds of reasons may come in on the further question whether it is right, fitting, natural. There are reasons why the position which has been so largely adopted of late is the natural and suitable one. Sir John Coleridge states them admirably:—

[6] The Eastward Position at the celebration of the Holy Communion.

As to the place of standing at the consecration, my feeling is with them. It seems to me not desirable to make it essential or even important that the people should see the breaking of the bread, or the taking the cup into the hands of the priest, and positively mischievous to encourage them in gazing on him, or watching him with critical eyes while so employed. I much prefer the spirit of the Rubric of 1549—First Book of Edward VI.—which says, "These words before rehearsed are to be said turning still to the Altar, without any elevation, or showing the Sacraments to the people." The use now enforced, I think, tends to deprive the most solemn rite of our religion of one of its most solemn particulars. Surely, whatever school we belong to, and even if we consider the whole rite merely commemorative, it is a very solemn idea to conceive the priest at the head of his flock, and, as it were, a shepherd leading them on in heart and spirit, imploring for them and with them the greatest blessing which man is capable of receiving on earth; he alone uttering the prayer—they meanwhile kneeling all, and in deep silence listening, not gazing, rather with closed eyes—and with their whole undistracted attention, joining in the prayer with one heart and without sound until the united "Amen" breaks from them at the close, and seals their union and assent.

But, of course, comes the further question, whether, an English clergyman is authorised to use it. He is not authorised if the Prayer Book tells him not to. Of that there is no question. But if the Prayer Book not only seems to give him the liberty, but, by the prima facie look of its words, seems to prescribe it, the harshness of a ruling which summarily and under penalties prohibits it is not to be smoothed down by saying that the matter is unimportant. Sir John Coleridge\'s view of the two points will be read with interest:—

You will understand, of course, that I write in respect of the Report recently made by the Judicial Committee in the Purchas case. I am not about to defend it. No one, however, ought to pronounce a condemnation of the solemn judgment of such a tribunal without much consideration; and this remark applies with, special force to myself, well knowing as I do those from whom it proceeded, and having withdrawn from sharing in the labours of the Committee only because age had impaired, with the strength of my body, the faculties also of my mind; and so disabled me from the proper discharge of any judicial duties. With this admission on my part, I yet venture to say that I think Mr. Purchas has not had justice done to him in two main points of the late appeal; I mean the use of the vestments complained of and the side of the communion-table which he faced when consecrating the elements for the Holy Communion. Before I state my reasons, let me premise that I am no Ritualist, in the now conventional use of the term. I do not presume to judge of the motives of those to whom that name is applied. From the information of common but undisputed report as to some of the most conspicuous, I believe them entitled to all praise for their pastoral devotedness and their laborious, self-denying lives; still, I do not shrink from saying that I think them misguided, and the cause of mischief in the Church. So much for my feeling in regard to the vestments. I prefer the surplice at all times and in all ministrations.

This is feeling—and I see no word in the sober language of our rubric which interferes with it—but my feeling is of no importance in the argument, and I mention it only in candour, to show in what spirit I approach the argument.

Now Mr. Purchas has been tried before the Committee for offences alleged to have been committed against the provisions of the "Act of Uniformity"; of this Act the Common Prayer Book is part and parcel. As to the vestments, his conduct was alleged to be in derogation of the rubric as to the ornaments of the Church and the ministers thereof, which ordains that such shall be retained and be in use as were in the Church of England by the authority of Parliament in the second year of the reign of King Edward VI. The Act of Uniformity is to be construed by the same rules exactly as any Act passed in the last session of Parliament. The clause in question (by which I mean the rubric in question) is perfectly unambiguous in language, free from all difficulty as to construction; it therefore lets in no argument as to intention otrier than that which the words themselves import. There might be a seeming difficulty in fact, because it might not be known what vestments were in use by authority of Parliament in the second year of the reign of King Edward VI.; but this difficulty has been removed. It is conceded in the Report that the vestments, the use of which is now condemned, were in use by authority of Parliament in that year. Having that fact, you are bound to construe the rubric as if those vestments were specifically named in it, instead of being only referred to. If an Act should be passed to-morrow that the uniform of the Guards should henceforth be such as was ordered for them by authority and used by them in the 1st George I., you would first ascertain what that uniform was; and, having ascertained it, you would not inquire into the changes which may have been made, many or few, with or without lawful authority, between the 1st George I. and the passing of the new Act. All these, that Act, specifying the earlier date, would have made wholly immaterial. It would have seemed strange, I suppose, if a commanding officer, disobeying the statute, had said in his defence, "There have been many changes since the reign of George I.; and as to \'retaining,\' we put a gloss on that, and thought it might mean only retaining to the Queen\'s use; so we have put the uniforms safely in store." But I think it would have seemed more strange to punish and mulct him severely if he had obeyed the law and put no gloss on plain words.

This case stands on the same principle. The rubric indeed seems to me to imply with some clearness that in the long interval between Edward VI. and the 14th Charles II. there had been many changes; but it does not stay to specify them, or distinguish between what was mere evasion and what was lawful; it quietly passes them all by, and goes back to the legalised usage of the second year of Edward VI. What had prevailed since, whether by an Archbishop\'s gloss, by Commissions, or even Statutes, whether, in short, legal or illegal, it makes quite immaterial.

I forbear to go through the long inquiry which these last words remind one of—not, I am sure, out of any disrespectful feeling to the learned and reverend authors of the Report, but because it seems to me wholly irrelevant to the point for decision. This alone I must add, that even were the inquiry relevant, the authorities on which they rely do not appear to me so clear or cogent, nor the analogies relied on so just, as to warrant the conclusion arrived at. For it should never be forgotten that the defendant in a criminal case, acquitted as to this charge by the learned judge below, was entitled to every presumption in his favour, and could not properly be condemned but by a judgment free from all reasonable doubt. And this remark acquires additional strength because the judgment will be final not only on him but on the whole Church for all time, unless reversed by the Legislature.

On the second point he thus speaks, in terms which for their guarded moderation are all the more worth notice:—

Upon the second point I have less to say, though it is to me much the most important. The Report, I think, cannot be shown conclusively to be wrong here, as it may be on the other; still it does not seem to me to be shown conclusively to be right. You have yourself given no reason in your second letter of the 8th March for doubting at least.

Let me add that, in my opinion, on such a question as this, where a conclusion is to be arrived at upon the true meaning of Rubrics framed more than two centuries since, and certainly not with a view to any such minute criticism as on these occasions is and must be applied to them, and where the evidence of facts is by no means clear, none probably can be arrived at free from reasonable objection. What is the consequence? It will be asked, Is the question to receive no judicial solution? I am not afraid to answer, Better far that it should receive none than that injustice should be done. The principles of English law furnish the practical solution: dismiss the party charged, unless his conviction can be based on grounds on which reasonable and competent minds can rest satisfied and without scruple. And what mighty mischief will result to countervail the application of this rule of justice? For two centuries our Church has subsisted without an answer to the question which alone gives importance to this inquiry, and surely has not been without God\'s blessing for that time, in spite of all much more serious shortcomings. Let us remember that Charity, or to use perhaps a better word, Love, is the greatest of all; if that prevail there need be little fear for our Faith or our Hope.

Having said this much, Sir John Coleridge proceeds to the second, and indeed the main object of his letter—to remonstrate against exaggeration in complaint, both of the particular decision and of the Court which gave it:—

I now return to your letter. You proceed to attempt to show that the words of Keble to yourself, which you cite, are justified by remarks in this Report and some previous judgments of the same tribunal, which appear to you so inconsistent with each other as to make it difficult to believe that the Court was impartial, or "incapable of regarding the documents before it in the light of a plastic material, which might be made to support conclusions held to be advisable at the moment, and on independent grounds." I wish these words had never been written. They will, I fear, be understood as conveying your formed opinions; and coming from you, and addressed to minds already excited and embittered, they will be readily accepted, though they import the heaviest charges against judges—some of them bishops—all of high and hitherto unimpeached character. A very long experience of judicial life makes me know that judges will often provoke and bitterly disappoint both the suitors before them and the public, when discharging their duty honestly and carefully, and a man is scarcely fit for the station unless he can sit tolerably easy under censures which even these may pass upon him. Yet, imputations of partiality or corruption are somewhat hard to bear when they are made by persons of your station and character. When the Judicial Committee sits on appeals from the Spiritual Courts, it may certainly be under God\'s displeasure, the members may be visited with judicial blindness, and deprived of the integrity which in other times and cases they manifest. Against such a supposition there is no direct argument, and I will not enter into such a disputation. I have so much confidence in your generosity and candour, on reflection, as to believe you would not desire I should.

In the individual case I simply protest against the insinuation. I add a word or two by way of general observation.

No doubt you have read the judgments in all the cases you allude to carefully; but have you read the pleadings and arguments of the counsel, so as to know accurately the points raised for the consideration of those who were to decide? To know the offence charged and the judgment pronounced may suffice in some cases for an opinion by a competent person, whether the one warranted the other; but more is required to warrant the imputation of inconsistency, partiality, or indirect motives. He who takes this on himself should know further how the pleadings and the arguments presented the case for judgment, and made this or that particular relevant in the discussion. Every one at all familiar with this matter knows that a judgment not uncommonly fails to reflect the private opinion of the judge on the whole of a great point, because the issues of law or fact actually brought before him, and which alone he was bound to decide, did not bring this before him. And this rule, always binding, is, of course, never more so than in regard to a Court of Final Appeal, which should be careful not to conclude more than is regularly before it. Let me add that a just and considerate person will wholly disregard the gossip which flies about in regard to cases exciting much interest; passing words in the course of an argument, forgotten when the judgment comes to be considered, are too often caught up, as having guided the final determination.

Such words are a just rebuke to much of the inconsiderate talk which follows on any public act which touches the feelings, perhaps the highest and purest feelings of men with deep convictions. Perhaps Mr. Liddon\'s words were unguarded ones. But at the same time it is necessary to state without disguise what is the truth in this matter. It is necessary for the sake of justice and historical truth. The Court of Final Appeal is not like other courts. It is not a pure and simple court of law, though it is composed of great lawyers. It is doubtless a court where their high training and high professional honour come in, as they do elsewhere. But great lawyers are men, partisans and politicians, statesmen, if you like; and this is a court where they are not precluded, in the same degree as they are in the regular courts by the habits and prescriptions of the place, from thinking of what comes before them in its relation to public affairs. It is no mere invention of disappointed partisans, it is no idle charge of wilful unfairness, to say that considerations of high policy come into their deliberations; it has been the usual language, ever since the Gorham case, of men who cared little for the subject-matter of the questions debated; it is the language of those who urge the advantages of the Court. "It is a court," as the Bishop of Manchester said the other day, speaking in its praise, "composed of men who look at things not merely with the eyes of lawyers, but also with the eyes of statesmen." Precisely so; and for that reason they must be considered to have the responsibilities, not only of lawyers, but of statesmen, and their acts are proportionably open to discussion. Sir John Coleridge urges the impossibility of any other court; and certainly till we could be induced to trust an ecclesiastical court, composed of bishops or clergymen, in a higher degree than we could do at present, we see no alternative. But to say that a clerical court would be no improvement is not to prove that the present court is a satisfactory one. It may be difficult under our present circumstances to reform it. But though we may have reasons for making the best of it, we may be allowed to say that it is a singularly ill-imagined and ill-constructed court, and one in which the great features of English law and justice are not so conspicuous as they are elsewhere. Suitors do not complain in other courts either of the ruling, or sometimes of the language of judges, as they complain in this. But when this is made a ground for joining with the enemies of all that the English Church holds dear, to bring about a great break-up of the existing state of things, we agree with Sir John Coleridge in thinking that a great mistake is made; and if care is not taken, it may be an irreparable one. He writes:—

I hasten to my conclusion too long delayed, but a word must still be added on a subject of not less consequence than any I have yet touched on. You say, "Churchmen will to a very great extent indeed find relief from the dilemma in a third course, viz. co-operation with the political forces, which, year by year, more and more steadily are working towards disestablishment. This is not a menace; it is the statement of a simple fact." I am bound to believe, and I do believe, you do not intend this as a menace; but such a statement of a future course to depend on a contingency cannot but read very much like one—and against your intention it may well be understood as such. You do not say that you are one who will co-operate with the political party which now seeks to disestablish the Church in accomplishing its purpose, and I do not suppose you ever will. But on behalf, not so much of the clergy as of the laity—on behalf of the worshippers in our churches, of the sick to be visited at home—of the poor in their cottages, of our children in their schools—of our society in general, I entreat those of the clergy who are now feeling the most acutely in this matter, not to suffer their minds to be so absorbed by the present grievance as to take no thought of the evils of disestablishment. I am not foolishly blind to the faults of the clergy—indeed I fear I am sometimes censorious in regard to them—and some of their faults I do think may be referable to Establishment; the possession of house and land, and a sort of independence of their parishioners, in some cases seems to tend to secularity. I regret sometimes their partisanship at elections, their speeches at public dinners. But what good gift of God is not liable to abuse from men? Taken as a whole, we have owed, and we do owe, under Him, to our Established clergy more than we can ever repay, much of it rendered possible by their Establishment. I may refer, and now with special force, to Education—their services in this respect no one denies—and but for Establishment these, I think, could not have been so effectively and systematically rendered. We are now in a great crisis as to this all-important matter. Concurring, as I do heartily, in the praise which has been bestowed on Mr. Forster, and expecting that his great and arduous office will be discharged with perfect impartiality by him, and with a just sense of how much is due to the clergy in this respect, still it cannot be denied that the powers conferred by the Legislature on the holder of it are alarmingly great, even if necessary; and who shall say in what a spirit they may be exercised by his successor? For the general upholding of religious education, in emergencies not improbable, to whom can we look in general so confidently as to the parochial clergy? I speak now specially in regard to parishes such as I am most familiar with, in agricultural districts, small, not largely endowed, sometimes without resident gentry, and with the land occupied by rack-renting farmers, indifferent or hostile to education.

In what Sir John Coleridge urges against the fatal step of welcoming disestablishment under an impatient sense of injustice we need not say that we concur most earnestly. But it cannot be too seriously considered by those who see the mischief of disestablishment, that as Sir John Coleridge also says, the English Churrh is, in one sense, a divided one; and that to pursue a policy of humiliating and crippling one of its great parties must at last bring mischief. The position of the High Church party is a remarkable one. It has had more against it than its rivals; yet it is probably the strongest of them all. It is said, probably with reason, to be the unpopular party. It has been the stock object of abuse and sarcasm with a large portion of the press. It has been equally obnoxious to Radical small shopkeepers and "true blue" farmers and their squires. It has been mobbed in churches and censured in Parliament. Things have gone against it, almost uniformly, before the tribunals. And unfortunately it cannot be said that it has been without its full share of folly and extravagance in some of its members. And yet it is the party which has grown; which has drawn some of its antagonists to itself, and has reacted on the ideas and habits of others; its members have gradually, as a matter of course, risen into important post and power. And it is to be noticed that, as a party, it has been the most tolerant. All parties are in their nature intolerant; none more so, where critical points arise, than Liberal ones. But in spite of the Dean of Westminster\'s surprise at High Churchmen claiming to be tolerant, we still think that, in the first place, they are really much less inclined to meddle with their neighbours than others of equally strong and deep convictions; and further, that they have become so more and more; and they have accepted the lessons of their experience; they have thrown off, more than any strong religious body, the intolerance which was natural to everybody once, and have learned, better than they did at one time, to bear with what they dislike and condemn. If a party like this comes to feel itself dealt with harshly and unfairly, sacrificed to popular clamour or the animosity of inveterate and unscrupulous opponents, it is certain that we shall be in great danger.