*« 
 
 
 
 
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 LI B R.ARY 
 
 OF THE 
 
 U N IVLRSITY 
 
 Of ILLINOIS
 
 33 
 A LETTER 
 
 THE ARCHBISHOP OF YORK, 
 
 EBPOET 
 
 OP THE 
 
 COMMISSION ON ECCLESIASTICAL COURTS. 
 
 BY HIS CHANCELLOR AND VICAR-GENERAL, 
 
 Sir EDMUND BECKETT, Bart., ll.d., q.c. 
 
 SECOND EDITION, REVISED AND ENLARGED. 
 
 LONDON: 
 JOHN MURRAY, ALBEMARLE STREET, W. 
 
 1884.
 
 CONTENTS. 
 
 PAGE 
 
 4. The Commission has exceeded 
 
 its Authority. 
 
 5. Unfit to invent new Judica- 
 
 ture. 
 
 6. Archbishop Tait's Speech on 
 
 Address for it. 
 
 7. The real Cause of the Com. 
 
 mission ignored. 
 
 8. Its odd Composition. 
 
 10. The " Surrender of the Mi- 
 
 nority." 
 
 11. Report of the Ritual Commis- 
 
 sion of 1867 ignored. 
 
 13. Lord Brougham's story about 
 
 the Delegates and Privy 
 Council. 
 
 14. The Commission on Eccle- 
 
 siastical Courts, of 1832. 
 
 16. The Supreme Head of the 
 
 Church on Earth. 
 
 17. Prayer Books of Edward VI 
 
 and Elizabeth. 
 
 18. The Elizabethan Convoca- 
 
 tions did nothing. 
 
 19. The Submission of the Clergy 
 
 to Henry VIII, and the 
 Act thereon. 
 
 19. Convocations never allowed, to 
 
 meddle with Judicature. 
 
 20. The High Commission Court 
 
 and the Delegates. 
 
 21. The State never "agreed" 
 
 with the Clergy. 
 
 22. Relations of Parliament and 
 
 Convocations. 
 
 PAGE 
 
 23. Parliament alone has never 
 
 made Doctrine. 
 
 24. Canon Stubbs on the Inter- 
 
 pretation of Statutes. 
 
 25. Clerical Jurists v. the 
 
 Judges. 
 27. Convocation Resolutions of 
 
 1882 
 30. The New Court of High 
 
 Commission. 
 
 32. Assessors and Executioners. 
 
 33. Martyrdom of Contumacious 
 
 Primates. 
 
 34. The " Indefeasible right to 
 
 approach the Throne." 
 
 35. The Episcopal Veto on Suits. 
 
 37. Obiter dicta, and reasons for 
 
 decision. 
 
 38. Latcyers the only fair Judges. 
 
 40. The new Scheme for fluctuat- 
 
 ing Judgments. 
 
 41. The Pure has and Rids dale 
 
 Judgments to be reversed. 
 
 42. Their legal principles. 
 
 42. Elizabeth's Advertisements 
 received by three Convoca- 
 tions. 
 
 44. Proved by evidence of a 
 
 century. 
 
 46. The only legislation necessary. 
 
 47. The netv Cathedral Com- 
 
 mission. 
 
 48. Separate Reports of some 
 
 Commissioners. 
 
 49. Lord Penzance's Report.
 
 EEMAEKS 
 
 ON THE 
 
 REPORT OF THE ECCLESIASTICAL COURTS 
 COMMISSION. 
 
 My dear Lord Archbishop, 
 
 You asked for the opinion of your Vicar- General about 
 the Report of the Royal Commission which was appointed in 
 May 1881, " to Inquire into the Constitution and Working 
 of the Ecclesiastical Courts as created or modified under the 
 Reformation Statutes and other subsequent Acts." I could 
 not give you an answer of any use in less than a pamphlet, 
 as I certainly cannot say that I approve of the Report, and 
 it is no use saying that I disapprove, without explaining 
 how and why. 
 
 I might perhaps have said that I have expressed my own 
 notions of what ought to be done, in the Bill which the 
 Commission asked me for, and have printed in vol. ii, 402, 
 and also in an article on "The Ritualists and the Law," 
 in The Quarterly Review of January 1881. But I should 
 now make one material alteration in consequence of the 
 separate reports of your Grace, the Lord Chief Justice, Lord 
 Penzance, and five other Commissioners, and some of the 
 evidence, about the episcopal veto on ecclesiastical suits, and 
 a few minor ones. I might also say that I agree generally 
 with the criticism of the Report in The Quarterly 'Review 
 of last October ; and now (January 1884) still more, with 
 the article on " Ecclesiastical Jurisdiction " in the current 
 Edinburgh Review. But I have sundry things to say 
 besides. The first is that I can find no authority whatever, 
 in the Commission, or the Address for it, or in the late 
 Archbishop 's speech in moving it, or the Lord Chancellor's 
 in giving the assent of the Government, or anywhere else, 
 
 1 *
 
 4 No Authority to Becommend Legislation, 
 
 for inventing any new judicature, or making any recommen- 
 dations at all. I have already quoted all the significant 
 words in the Commission and Address. Yet every t( religious 
 newspaper/' and every speaker on it at Congresses and Con- 
 ferences (so far as I have seen), have assumed that this was 
 what the Commission was appointed for and instructed to 
 do — and to do conclusively, subject only to the approval of 
 Convocation; and straightway to have their scheme turned 
 into an Act of Parliament and forced upon the nation. 
 
 Nor can there be any pretence for saying that there was 
 a general understanding that the Commission was intended 
 to propose a new Judicature Bill. For Archbishop Tait 
 distinctly said that he made the motion in that form at the 
 request of the bishops, among whom the matter had been 
 discussed. So it is quite clear that this body of ecclesiastics, 
 lawyers, and amateurs, had no more right or authority to do 
 what they have done than a Grand Jury summoned to " find 
 Bills " of Indictment have to present a Bill for Reform of 
 the Courts of Law or of Parliament. It is rather significant 
 of some consciousness of this preliminary objection, that the 
 Report, after fifty-one pages of historical and other state- 
 ments, conspicuously changes its literary style (certainly not 
 for the better), and is struck with <c apprehension that it is 
 our duty to proceed to Recommendations : " which looks 
 very like real apprehension that they would be accused of 
 exceeding their duty and gratifying their wishes. And the 
 more so, because we shall see afterwards how scrupulous 
 they were not to exceed their instructions by taking the 
 momentous step of recommending that their Report should 
 be laid before the Convocation of Canterbury in return for 
 its Resolutions, to which they say, most truly, that they 
 "have paid very careful attention." I shall advert to that 
 again when I speak of the Resolutions themselves as the 
 least that will be " satisfactory " to that body. 
 
 Nor will it avail them or anybody else to say that, whether 
 authorized or not, the opinion of such a collection of persons 
 who had heard all that evidence must be worth attending 
 to. That entirely depends upon their fitness as a whole — 
 
 ^ 
 
 UIUC 
 
 rs*
 
 This Commission unfit for that purpose. 5 
 
 not the fitness of a few of them — for what they have volun- 
 teered to do. I have not the least hesitation in saying that 
 such a Commission as that, was and is unfit in every possible 
 way for anything but a mere inquiring one, if for that ; and 
 it is absolutely ludicrous, except that the matter is too 
 serious to laugh at, for such a body to undertake the reform 
 of all the ecclesiastical judicature of England, and (according 
 to their own theory of what Courts do) to alter gradually 
 the whole ecclesiastical law of England. The Eitualists 
 and all their adherents, and some others who do not deserve 
 that name any more than that of lawyers, are continually 
 telling us that any Court which has to interpret the law of 
 the Church makes the law of the Church ; and so it does 
 not lie in their mouths to deny that whoever is allowed to 
 influence the Church Courts will be able gradually to alter 
 the legal doctrines and ceremonies of the Church, and make 
 them what they please ; and moreover, their scheme at once 
 alters the relations of the clergy to the State; the very 
 thing that the Puseyites and Ritualists have been avowing, 
 for just half a century now, that they intend. Archbishop 
 Tait gave some specimens of their sayings in his speech on 
 the Public Worship Regulation Bill in 1874, and they made 
 no secret of it in their evidence before you. In short, their 
 object has long been, and is, to undo the Reformation both 
 theologically and politically ; which concerns everybody in 
 England, whatever may be his creed. 
 
 If anybody says the Commission would have wasted its 
 time and sat for nothing, if it had not proposed a new 
 judicature, he shall be answered by no less a person than 
 the very Bishop (of Peterborough) who, Archbishop Tait 
 said, had moved for the Commission among the bishops, 
 and answered the only objector to it in the House of Lords. 
 He took a more sanguine view of what they might succeed 
 in doing than anybody else, and the Lord Chancellor, for 
 the Government, distinctly said he did not share it, or 
 expect much good from the Commission. But the Bishop 
 said, " If the result be nothing else but the publishing of a 
 Blue Book, with a statement of the various theories held on
 
 6 Archbishop Tail's Speech. 
 
 these questions, and an examination of those theories (which 
 they have not given us), with the evidence in support of 
 them ... I will venture to say that the Commission will 
 have conferred great benefit, and there is the hope that it 
 will tend to a larger knowledge," &c. That is exactly what 
 Archbishop Tait had said was the real object of having the 
 inquiry. I might quote half his speech, but this will be 
 enough : " I am convinced that there is an immense amount 
 of misinformation and prejudice about the Supreme Court. 
 . . . Lord Selborne said on the Public Worship Regulation 
 Bill, that the State had always arranged the mode in which 
 the Ecclesiastical Courts were to act. On this point there 
 is great misunderstanding in the country, especially among 
 the clergy. ... I beg to say we have no intention whatever 
 of going back beyond the Reformation." And yet they 
 spent hours and days in so going back, even to the judica- 
 ture of Constantine, and give us pages without end about 
 that of other countries and churches; and finally restore 
 as much of the ante-Reformation system, as they dare — all 
 but the Pope ; for whom the Ritualists substitute themselves. 
 They do not even see the difference between ante-Reforma- 
 tion times, when the clergy made the doctrine and ritual 
 what they chose from time to time, and post-Reformation 
 times, when it has been made and stereotyped for the 
 Church of England, leaving Dissenters to adopt what they 
 choose. 
 
 Archbishop Tait was a singularly wise and powerful man, 
 who rose with his advance in position as small men sink ; 
 and I am much struck with the ability of his long examina- 
 tions of all kinds of witnesses. But he did not foresee one 
 thing, which you may remember that some smaller people 
 did, viz., that a Commission might do all that he contem- 
 plated : might collect and publish opinions, the most absurd, 
 extreme, and contradictory, which he and you and others 
 might expose by cross-examination ; and yet the Commis- 
 sion might do a vast deal of harm in other ways, especially 
 if it contained a strong " representation " of the very party 
 whose extravagances and " misinformation " he wanted to
 
 1 
 
 The Real Cause of the Commission Ignored. 7 
 
 correct. And it might even state them strongly, and leave 
 them uncorrected. He certainly did not forget that he 
 might die before he finished his work, but I doubt if he 
 calculated what the consequences of that might be to the 
 Report, especially in such a body as that ; and he could not 
 guess what that would be when he moved for it. I venture 
 to think that you yourself discovered before long that your 
 own first thoughts, and not your second, were the best ; for 
 you told the Lords that your first had been against it. 
 
 What was the cause avowed by everybody for having the 
 Commission ? Simply the rebellion of the Eitualists (as 
 Archbishop Tait called them throughout) against the written 
 law where it is too clear for any honest man to doubt, and 
 against the decisions of the Courts where it was not. They 
 have said in every possible way that they neither mean to 
 obey it, nor any conceivable Court now : that there has 
 been no real Supreme Ecclesiastical Court since the Refor- 
 mation, and still less since 1832, and no genuine Provincial 
 Court since 1874; and a great deal more of the same kind : 
 of which not a word appears in the Report ; but it intimates 
 on the contrary that its scheme "would command obe- 
 dience," which had hitherto " been refused" (p. vi) : for 
 which there is not a scrap of evidence from any single 
 Ritualist. Would any statesman or nation that has not lost 
 the art of governing appoint or listen to a Commission on 
 which those very people are largely represented, as the 
 inventors and proposers of a new judicature to deal with 
 them, or their verdict that the present judicature is incom- 
 petent or unsatisfactory, as the southern Convocation says, 
 and they agree ? Substitute any less respectable kind of 
 rebels — say poachers, smugglers, or any other determined 
 breakers of positive law that you like ; and then would any 
 man out of Bedlam put a large, or an} T , number of them on 
 a Commission to invent some better means for " restraining" 
 them? 
 
 Not only were the party of rebellion largely represented 
 in the Commission, but they actually had a large majority 
 more or less favourable to them, as was evident to everybody
 
 8 Packing of the Commission. 
 
 from the beginning. The Edinburgh Review says the 
 majority at first proposed was even larger, but the Prime 
 Minister yielded a little to the remonstrances of the late 
 Archbishop, taking care however to retain a very decisive 
 preponderance for what is notoriously his own side : which 
 may be a warning to some other agitators for a Prayer 
 Book reforming Commission. The principal bone of con- 
 tention among you was sure to be, and was, the episcopal 
 veto ; about which there was such evidence that the Lord 
 Chief Justice says it is " fast becoming intolerable in prac- 
 tice, besides being indefensible in theory " (see p. 49, here). 
 The Bishop of Winchester was the man who induced the 
 House of Lords in 1874 to reject the amendment of the 
 Commons, giving an appeal against a veto to the Archbishop, 
 as the great Commission of Bishops and Judges of 1832 had 
 before. And it has been incidentally proved that such an 
 appeal would have been no real protection to the laity of the 
 Province of Canterbury. One other bishop's name had been 
 conspicuously connected with the veto in legal proceedings, 
 as well as with the English Church Union, the body which 
 exists merely to defend clerical rebellion : at least the Edin- 
 burgh Review says so of him. And of him Lord Bramwell 
 said, even while deciding in favour of his legal right to veto 
 an ecclesiastical suit (" Law Reports/' 4 Q. B. Div. 555) : — 
 " By what means Mr. Carter has persuaded himself that 
 he can receive the wages of the State [i.e., secured to him 
 by the State] to do a certain duty, and not to do it, but that 
 which is opposed to it, I cannot conceive. And, with all 
 submission, I feel a nearly equal difficulty in understanding 
 how it can seem right to the Bishop (of Oxford) not to 
 bring him to justice. It does seem to me that the discre- 
 tion has been most erroneously exercised. It is as though 
 a public prosecutor should refuse to prosecute a man persist- 
 ing in a public nuisance against the rights and to the injury 
 of the neighbourhood, because the offender was old and 
 respected and because some of the neighbours worked for 
 him and because some prosecutions for nuisance had recently 
 failed."
 
 
 Amateur and Partisan Commissioners. 9 
 
 Yet these two bishops, and one other who has always 
 been reckoned as a High Churchman, were the only three 
 besides the two Primates who were selected for impartial 
 judges whether the quite modern invention of the episcopal 
 veto should be retained. In this case the High Church party 
 prefer the modern "use" to the ancient. I shall have more 
 to say about that farther on. At present I am only on the 
 constitution of the Commission, and its claims to have its 
 recommendations listened to. 
 
 It is not the least exaggeration to say that every question 
 put by sundry other members, from one end of the 800 
 columns of evidence to the other, might have been put by 
 counsel for the Church Union, with all sorts of interjections, 
 sometimes rude enough when the answers did not please 
 them. I make no objection to their so displaying them- 
 selves as partisans bringing out their own views, and 
 exhibiting their own unfitness to invent new courts to try 
 them, or to give an impartial account of the complaints 
 against the present courts, which were never heard of till 
 the decisions against their party ; and proving the utter 
 worthlessness of the Report, except as a manifesto of the 
 Sacerdotalists, and a warning to the laity of England to look 
 after them. 
 
 It would be equally absurd to pay any attention to the 
 recommendations on such a difficult subject as judicature, 
 which requires the best legal and ecclesiastical knowledge 
 and experience, from a set of mere amateurs, as many of 
 these Commissioners are, and all the more so if they are 
 partisans. Deduct these two classes, joint and several, and 
 then see how many remain of this body of successors to the 
 great statesmen of Elizabeth, or the learned and powerful 
 Commission of 1832, which substituted the Privy Council 
 and its Judicial Committee for the old precarious Delegates, 
 of whom the Ritualists have become enamoured because 
 they are irrecoverably gone. 
 
 But no doubt many a reader is already thinking, is this 
 Vicar-Greneral forgetting that his own Archbishop signed 
 this very Report ? No, I am not. But the chief organ of 
 
 2
 
 10 The " Surrendering Minority " 
 
 the High Cliurcli party (though not of the highest) has kindly- 
 saved me all trouble upon that score. I had the luck to 
 see a leading article in The Guardian of 17 October, 1883, 
 advising the clergy to accept the recommendations of the 
 Commission, however short of their • desires and hopes, for 
 this reason: " They have presented a virtually unanimous 
 [i.e. j not unanimous] Keport. Several of them, we may be 
 sure, must have made a very large surrender of individual 
 preferences iu order to do this ; and if their Report is in 
 substance accepted by the clergy [the laity are of course 
 ignored], their surrender will remain operative. If, on the 
 other hand, it is not" — in short, the triumph will be lost. 
 Much the same kind of language has been used at most of 
 the Conferences ; where the Report has been welcomed as 
 at least a step in the right direction, and an instalment of 
 the rights of the clergy, and so forth ; and Mr. Beresford 
 Hope, who is always playing the game of the Ritualists, 
 and declaring that he does not even understand the name, 
 boasts that they have " slain [the Jabberwok] the Judicial 
 Committee," and have only to ride on and conquer, and 
 "put on the coping-stone." 
 
 I have my own opinion whether this evident minority on 
 the veto did wisely or unwisely in not joining Lord Penzance, 
 who made no surrender, but a separate report. Nor am I 
 going to volunteer conjectures here as to why you did so, 
 beyond remarking on the unfortunate (the other side will 
 say Providential) removal of the powerful hand of Archbishop 
 Tait in his commanding position, at the critical moment 
 between taking all the evidence and making the Report. 
 I am quite sure there would have been none such if he had 
 lived a year longer. I am content to take the assertion of 
 the friends of the majority, that your signature is not to 
 be thought of as a real agreement, but only as the best 
 compromise which a minority could get. They had much 
 better have got none. Accordingly, whenever I say the 
 Commission I mean only the majority, whether exactly 
 divided from the minority by the line of the veto or by 
 others from time to time. The subsequent publication of
 
 Commission on Ritual of 1867 unnoticed. 11 
 
 a paper of conclusions of the Lord Chief Justice proves 
 that the dissent of the minority was really greater than 
 appears from their separate reports. 
 
 Before going into any details, I say that to any man of 
 common sense who means the supremacy of the Crown 
 and State over the clergy to be maintained, apart from all 
 questions of doctrine, and however little he may care for 
 the Reformation theologically, this Report is condemned 
 already by the exultation of the party who want the 
 supremacy of the Church, as they call it, meaning the 
 supremacy of the clergy, and want to repeal the " Sub- 
 mission of the Clergy" in 1532; and the more so because 
 they only take it as an inadequate instalment, and in that 
 sense complain of it. People who will not, or cannot, 
 examine it in detail, may be sure that the Ritualists know 
 their own business and interests very well. And for those 
 who care to know any more, I proceed to show that those 
 rejoicings are quite right. 
 
 The first thing that occurs to me to point out is the 
 singular omission of any word of notice of the unanimous 
 Report of the twenty-nine Commissioners on Ritual in 1867, 
 containing this sentence : — ' ' We are of opinion that it is 
 expedient to restrain in the public services of the Church all 
 variations in respect of vesture [and a fortiori, ceremonies] 
 from that which has long been the established usage/'' &c. 
 Lord Penzance is equally struck with the omission, and I 
 gladly refer to his further remarks upon it. It is the more 
 extraordinary because that very sentence had been brought 
 into unusual notice while this Commission was at work by 
 the history of it in that suicidal and parricidal third volume 
 of the "Life of Bishop Wilberforce," who boasted, as he was 
 fond of doing, of the success of his own management in 
 getting " restrain '* unanimously accepted instead of " pro- 
 hibit " or "abolish." Nevertheless, Pusey wrote to him that 
 even restrain " seemed to him a complete extirpation of the 
 vestments, root and branch; an absolute and complete 
 defeat " (" Life of Bishop Wilberforce," iii, 215) . It is also 
 
 2 *
 
 12 The Ritual Commission's Report of 1867. 
 
 worth notice that the 1867 Report was signed by six arch- 
 bishops and bishops, four of the most distinguished and 
 learned deans, four canons, two ecclesiastical judges (Sir R. 
 Phillimore being one), and Lords Hatherley and Coleridge, 
 besides some notoriously High Churchmen among the 
 amateurs. The second Report of the same Commission 
 dealt expressly with ceremonies, and recommended that the 
 usage of three centuries should be conclusive. All that was 
 fully laid before this Commission by Mr. Valpy, solicitor, 
 and every word of it ignored ; and so is his catalogue of the 
 fate of all the suits prosecuted or vetoed. 
 
 Mr. Hope hopes that this new Report will not be " pigeon- 
 holed." It certainly has done its best to pigeon-hole its 
 predecessor and hide it away for ever, while it notices 
 and prints almost every other old document which has 
 any kind of bearing on this question, with some curious 
 omissions, as we shall see. One omission of another kind, 
 which every impartial reader of the evidence must have 
 noticed, is that of the smallest expression of opinion by 
 the Commission about the Ritualists' objections to all the 
 present judicature, which they set forth with such elaborate 
 minuteness that it is easy to count sixteen of them. 
 One would think that people who apprehended it ,to 
 be their duty to proceed to volunteer recommendations 
 would have felt it rather more their duty to say whether 
 they considered those objections well or ill founded which 
 were to be their motives for action. The only qualification 
 that they introduce is the bare intimation (in the first page) 
 that " as to many of the objections' . . . there were decided 
 expressions on the part of some, that no changes, or merely 
 slight changes, were required or would be justifiable ; " which 
 everybody knew beforehand. Of course every indifferent 
 reader concludes that they consider the objections to the 
 present judicature substantial and well founded, and the 
 " decided expressions of some the other way "■ — not worth 
 attending to : and they treat them so. 
 
 I can easily understand the difficulty the majority were 
 in. It was impossible to express the opinion they wanted
 
 The Ecclesiastical Court Commission of 1832. 13 
 
 to express without throwing off your weighty minority into 
 an independent orbit altogether, which would have ruined 
 the course of the majority : so they state the objections to 
 the present system as strongly as they can, and then put 
 in that feeble parenthesis for the minority, that some of 
 the witnesses had a decided opinion the other way. But 
 we shall see greater things than these ; and here is one 
 brilliant specimen of ecclesiastical history. The Ritualists 
 have been dinning in our ears, ever since one of them 
 fished it out of Hansard, that Lord Brougham said in a 
 debate about a Bill of Bishop Blomfield's in 1850 for 
 referring all doctrinal questions to the bishops, which was 
 rejected by a large majority, including Brougham himself, 
 that the "Judicial Committee of the Privy Council had 
 been framed without the expectation of questions like the 
 [G-orham one] being brought before it. It was created 
 for the consideration of a totally different class of cases, 
 and he had no doubt that if it had been constituted with 
 a view to such cases, some other arrangement would have 
 been made." Canon Stubbs quotes all that in one of his 
 " Historical Appendices," with the introduction that what 
 it implies "was recognized as a fact " proved thereby (p. 48), 
 and repeats it even more strongly at p. 51, and actually 
 goes the length of saying that the appeal to the Crown in 
 the Privy Council in Church cases (and by the same reasoning 
 any appeal to the Crown) " is neither part of the Reformation 
 Settlement nor a necessary historical consequence of it:" 
 which is all founded on the assumption that the Commis- 
 sioners of 1831-2 did not know what they were doing, and 
 what the Delegates had done before, who were specially 
 made the Court of Ecclesiastical Appeal by 25 Hen. VIII, 
 c. 19, and had always been so since. 
 
 The Commission adopts this story, without naming 
 Brougham, in the Report (xliv). "It cannot fail to.be 
 noticed (they say) that neither in their examination of 
 witnesses, nor in their Report, do the Commissioners (of 
 1831-2) appear to have given any special consideration to 
 appeals on matters of doctrine as distinguished from other 
 ecclesiastical causes." , .
 
 14 Lord Brougham's Story adopted, 
 
 I suppose no lawyer of much experience has ever believed 
 a word of that thoroughly Broughamic story, or thought it 
 worth the trouble of hunting down. But these Coruniis- 
 sioners have unconsciously given us the means of doing so 
 without more trouble than reading those two reports, which 
 they apparently have not, but [print in their Appendices 
 (pp. 192 to 207), and fortunately with the signatures of the 
 Commissioners, of whom Brougham was not one, but signed 
 the receipt of them as Chancellor. So, first of all, he could 
 not possibly know eighteen years afterwards what was in 
 their minds — any more than Sir Fitzroy Kelly could know 
 that he and Sir R. Phillimore and one other were the 
 only impartial members of the Judicial Committee in the 
 Bidsdale case ; and therefore that there was not one honest 
 judge in the preceding Purchas judgment to the same effect. 
 Secondly, who do you think they were that are thus asserted 
 to have forgotten all about Church discipline and offences 
 of a spiritual kind as subjects of appeal ? Only six prelates, 
 including the five strongest and most learned of that time, 
 except Philpotts, who was then almost the youngest : three, 
 then or afterwards, great ecclesiastical judges, and one of 
 the Admiralty Court : all the Common Law Chiefs : the 
 Judge Advocate; and one other, whose position I forget. 
 A very likely team indeed to have run away and forgotten 
 Church discipline suits, and to know less about the Delegates 
 than this Commission chiefly of amateurs, partisans and 
 clergymen who were mostly little boys then. 
 
 But these are probabilities. Let us see the facts, and 
 whether this present Commission and their historian had 
 the smallest loophole of excuse for saying what they have. 
 Turn to p. 195 of the Appendices, and you will see in the 
 Report of 1832: "The ecclesiastical jurisdiction compre- 
 hends causes .... lastly, some purely spiritual. . . . The 
 third class includes Church discipline and the correction of 
 offences of a spiritual kind. . . . Among these are offences 
 committed by the clergy themselves, such as neglect of 
 duty, immoral conduct, advancing doctrines not conform- 
 able to the Articles, &c These offences are punished 
 
 by monition .... suspension, and deprivation." And
 
 and its Contradiction ignored. 15 
 
 further, they express their satisfaction that the number 
 of clerical prosecutions had been very few within the last 
 five years. So much for the notion of that Commission 
 forgetting what sort of causes the Privy Council would have 
 to try. 
 
 Even that is not all. You had all either been present 
 when, or had read that, Lord Coleridge told a witness and 
 the Commission that Brougham's story was u absolutely a 
 mistake, and impossible - " (pp. 301 and 534). And Arch- 
 bishop Tait said so too. Yet, without another word of any 
 kind in support of it, there it stands in different forms, three 
 times over, in the Report and the Appendices, for every 
 Ritualist to repeat (< on the unimpeachable authority of 
 a Royal Commission" (as we shall see presently), as a 
 " recognized fact," and one which the Commission says 
 " cannot fail to be noted from the (1832) Report itself." Did 
 they note it themselves ? Did they ever look at the signa- 
 tures of all those great bishops and ecclesiastical and other 
 lawyers ? Did they ever read at all the very document they 
 parade as proving this impossible piece of nonsense, or did 
 they take it all second-hand from somebody, and whom ? 
 And is a report or a history made up in that way worth — 
 I won't say the 3s 4d marked on it, but three farthings — 
 except for the copies of the documents which refute it ? 
 
 This strange mistake however, and some others, have an 
 incidental value ; for they show how little real concurrence 
 in the Report is implied by the mere signatures of the 
 aforesaid minority. For here is this very statement, which 
 Lord Coleridge had specially contradicted, as no doubt 
 some more of you remembered, left standing in the Report 
 signed by him and you all. I can easily understand the 
 minority subsiding into a state of disgust and indifference, 
 and not being disposed to waste more months in trying to 
 correct every mistake in a partisan Report with which it 
 was as impossible as The Guardian says for them to have 
 any cordial agreement or feel it to be their own. 
 
 Before leaving the Delegates I remark that the Professor of 
 History struggles through two columns at p. 47 to make out
 
 16 a The Supreme Head of the Church;" 
 
 that the Act of. Hen. VIII, c. 19, did not mean what it said, 
 with a distinctness which modern Act-makers have lost, and 
 that the Court of Appeal established by it was never intended 
 to try heresy. If the Act were ambiguous instead of clear, 
 and the practice had been in the direction that he wants, he 
 would have been justified by legal principles in saying what 
 he does. But as the Act is quite clear and the Delegates 
 did try heresy appeals for just 300 years, the ' ' contention 
 as a historical fact" that the Act was never intended 
 to give the Crown jurisdiction over heresy, is another 
 historical accuracy of the Report (p. v). The rarity of such 
 appeals while t( heresy " was not rare is amply accounted 
 for by their going to the High Commission Court which was 
 established under Elizabeth and lasted till William III : and 
 Professor Stubbs confesses that no less than 193 doctrine 
 and discipline cases went to the Delegates besides : all 
 without real jurisdiction, if his law-making is right. And 
 the records are confessedly imperfect. He has however 
 blown to pieces that audacious guess of Pusey's, which was 
 of course adopted as a historical fact by his followers, that 
 the delegates on heresy were always bishops for a long 
 time. They simply never were : there was always a pre- 
 ponderance of lawyers. 
 
 Now for a little more of their history. Here is their 
 account of the resumed Reformation under Elizabeth (p. 
 xxxiv). " The title of Supreme Head of the Church was, by 
 her Protestant advisers, represented as unscriptural, and was, 
 as she knew, a form heartily disliked by all those adherents 
 of the unreformed religion whose support was indispensable 
 to her. She had not, like Edward, any strong bias towards 
 the religious teaching of the Continental Reformers, and 
 her advisers were, for the most part, men of compromise. 
 The result of this combination was, in the revision of the 
 Prayer Book, some small but important alterations in the way 
 of compromise. In the re-settlement of Church government 
 her action was more free and her recurrence to her father's 
 principles more decided." This passage is itself such a 
 compromise that it may mean anything. Why could they
 
 
 and the Elizabethan Prayer Booh. 17 
 
 not tell us the course of the Elizabethan Keformation in a 
 straightforward way, with facts instead of inferences from 
 them ? Nobody who does not know already could even 
 gather from their account whether the Act of Uniformity, 
 1 Eliz. c. 2, restored the more Popish first or the more 
 Protestant second Prayer Book of Edward, and what the 
 " small but important alterations " made upon it were. It 
 was the second. And the alterations were some in the 
 Lectionary (as it is now the fashion to call it), and in the 
 iC form [i.e., arrangement) of the Litany," both of no con- 
 sequence ; and these <( two only " (as the Act says) in the 
 Communion : the first Edwardian Prayer Book had the first 
 part only of the two delivery sentences, dividing at " life ;" 
 and the second book had the second part only : Elizabeth's 
 combined them. That is all that was done to justify the 
 term " compromise " in the revision of the Prayer Book. 
 Every man ordained after 1 Eliz. c. 1 swore allegiance to 
 " the [Queen] as the only supreme governor, as well in all 
 spiritual or ecclesiastical things or causes, as in temporal," 
 instead of the former vague title of " supreme head of the 
 Church on earth." It is worth notice that Henry VIII and 
 Parliament never accepted the quantum per legem Ghristi 
 licet by which the clergy wanted to qualify their Sub- 
 mission, and it is not there, or in any Act. So much for that 
 fi compromise." I am not going to forget the clause about 
 " ornaments " in her Act of Uniformity, which was illegally 
 and inaccurately turned into a rubric of the Elizabethan 
 Prayer Book : but that will come farther on. 
 
 There is another passage about the legislation of that 
 reign in the Appendix (p. 143) which wants a little quali- 
 fying. Canon Stubbs gives a very sufficient reason and 
 explanation of the Protestant Prayer Book being restored 
 by 1 Eliz. c. 2, without consulting the Convocations ; viz : 
 that " they were hostile to the change " from Mary's 
 Popery ; " but," he adds, " from the moment that Elizabeth 
 had secured the support of the recruited body of bishops, 
 and was able to collect a Convocation willing to accept the 
 Prayer Book [not that they ever formally did, for it was by
 
 18 The Clergy have never been 
 
 that time law] ; she did her utmost to prevent the Parlia- 
 ment from meddling with ecclesiastical laws. Her eccle- 
 siastical supremacy was to be exercised according to the 
 ideas which she inherited from her father ; in legislation by 
 the Canons of Convocation, and in judicature by the Court 
 of High Commission/' which she was authorized to establish ; 
 and all the powers of the Ecclesiastical Courts — and no more 
 — were given to it, as Lord Penzance and Lord Coleridge 
 had to instruct the President of the Church Union when he 
 was plunging a good deal beyond his depth. 
 
 Who would suppose from that version that there never 
 was the smallest power, under either Elizabeth or Edward 
 or Henry, in the Convocations, even with the concurrence 
 of the Crown, to legislate an inch beyond the limits of the 
 Prayer Book and the existing Acts of Uniformity, or for 
 the laity at all, or to vary any doctrine or ceremony of the 
 Church in the smallest degree ? Nor were any canons ever 
 sanctioned by any of those sovereigns, though some were 
 made by Convocation under Elizabeth, which were after- 
 wards revised into those of 1603. The Commissioners' 
 summary of the Elizabethan legislation only just notices (at 
 p. xxxv) and not by its proper title, and the Appendix only 
 in the smallest type (p. 145) the great Act of 13 Eliz. c. 12, 
 " for Ministers to be of sound Beligion," which defines no 
 doctrines except by reference to the Prayer Book and 
 Articles, and under which all the deprivations for contra- 
 vening or ■■ depraving " it have taken place ; for it is still 
 "in viridi observantid" Neither is it among the Acts 
 printed in the Appendix. Nor is the Act of Uniformity 
 of 1661, establishing the present Prayer Book. Convoca- 
 tion had nothing to do with that Act of Elizabeth any more 
 than with her others : nor with any Act having reference to 
 judicature, either in that reign or any other Protestant one, 
 including Henry VIIFs. The present Lord Chancellor 
 distinctly said so in his speech before -mentioned, besides 
 what Archbishop Tait quoted from him. 
 
 I am not much surprised however, at seeing in the news- 
 papers that the President of the Church Union (whose
 
 consulted about Judicature. 19 
 
 father-in-law was one of the Commissioners and went evem 
 beyond them in a separate report) is going about the 
 country using this kind of language : " We now have 
 it on the unimpeachable authority of a Eoyal Commission, 
 that the Courts which have attempted to decide these 
 solemn matters arrived at their authority by a mistake- 
 In old times the secular side of Church business (wills 9 
 tithe-suits, divorces, &c.) was decided by the Ecclesias- 
 tical Courts, and what really happened a few [i.e., 359] 
 years ago was, that instead of allowing these matters to be 
 taken out of the kingdom [to Rome], it was agreed thas 
 they should be decided in Chancery." My business is not 
 with the Church Unionists, but with the unimpeachable 
 Commission. And though they have in one place called 
 the right of appeal to the Crown against every ecclesiastical 
 decision " indefeasible," they have left it to pass for a "his- 
 torical fact " (as we have seen), entirely uncontradicted hj 
 themselves, that " it was never intended at the Reformation 
 to give an appeal to the Crown in questions of heresy." 
 
 Apparently they do not see, too, that ifc is fatal to the 
 whole theory of " agreement " between the clergy and the 
 State as to Courts, or what they were to try, or appeals 
 about the performance of " divine service," that the Sub- 
 mission of the clergy, on 16th May, 1532 — not the "Act 
 for the submission of the clergy " in the following year 
 (25 Hen. VIII) — said not a word about Courts or Dele- 
 gates or Chancery, or causes or appeals of any kind, but 
 only "promised in verbo sacerdotii, submitting ourselves 
 humbly to your highness, that we will never hencefortlt 
 presume to make or promulgate any canons in our Convo- 
 cation without your highnesses consent." And then it goes 
 on to authorize the king to appoint the sixteen lay and 
 sixteen clerical Commissioners to overhaul the old Canons 
 (as we say now) ; who however never were appointed to do> 
 that work. Such is the confused arrangement of the twelve 
 historical Appendices, that it took me some time to find the 
 Submission at all, imbedded among other things at p. 71, 
 and far away from the Act that followed it. Nor do I see 
 
 3 *
 
 20 Convocation never legislated beyond Canons. 
 
 any reference to it or quotation of it in any of the places 
 where it is alluded to, nor the least intimation that the 
 Commissioners appreciated that vital distinction between 
 mere canon-making and legislating on judicature. 
 
 Again, their historiographer says at p. 34 that " the Act 
 (of 1533) incorporates the language of the submission of 
 the clergy made in (May) 1532, and also makes provision 
 for appeals in ecclesiastical causes supplementary to the 
 Statute of Appeals, 24 Henry VIII, c. 12 (1535). It is a 
 moot point whether this Act received the assent of Convoca- 
 tion ; " of which he admits that "there is no direct evidence." 
 No, nor indirect either, unless he thinks it " indirect evi- 
 dence " to say that l< there is no evidence that clauses 4, 5, 
 and 6 (all those beyond the submission) were not laid before 
 the clergy ; " " and that there is evidence (i.e., that somebody 
 said) they were prevailed upon to accept some repulsive 
 legislation." That is a queer way of making history. 
 However, if I wanted the strongest possible case against 
 the clerical claims to meddle with judicature, I should 
 accept Dr. Stubbs's conjectural history at once. For if 
 " the Convocations consented to that statute as a whole/' 
 they thereby conceded to the Crown for ever unlimited 
 jurisdiction over all ecclesiastical suits by unlimited Dele- 
 gates to try them. The Act of 1833 only limited the 
 Delegates to the Judges and ex- judges and Bishops of the 
 Privy Council, with two others. So he and his friends may 
 take their choice between the actual and the imaginary 
 history. 
 
 It is equally strange that these new historians of the 
 Reformation should imagine that it signifies one farthing 
 whether appeals about heresy or the performance of divine 
 service lawfully or unlawfully went to Rome or not ; when 
 the Act of 24 Hen. VIII, c. 12 — before the Submission 
 of the Clergy Act — had prohibited appeals to Rome about 
 a multitude of things, including "sacraments and divine 
 service, and all other things within this realm," under the 
 penalties of, first, a year's imprisonment, and then prae- 
 munire (see p. 215 App.). It is true that they had never
 
 The State has never "agreed" with the Clergy. 21 
 
 gone there lawfully, but that was no reason why they should 
 not be peremptorily stopped under strong penalties. And 
 suppose they had never gone at all, what then ? The Act 
 for the submission of the Clergy established the Delegates 
 as a new Court of Appeal from the Archbishops, which the 
 previous Act had prohibited altogether, except where the 
 King was concerned. I may remind you that the attempt to 
 set up the Upper House of Convocation as the final judge 
 of heresy was made after the Gorham judgment, on the 
 ground that the king was patron, by applying to all the 
 Law Courts in succession for a prohibition against insti- 
 tuting him, and was repelled by all of them, as contrary to 
 the second Act.* What is the value of a Report which leaves 
 all this in confusion and ambiguity, and rather suggests 
 the opposite conclusion, when there is no doubt about it, 
 and the question has been actually decided by three Courts ? 
 As the Ritualists make much of Elizabeth's giving up the 
 title of Supreme Head of the Church, forgetting the more 
 definite one which was given her, we may as well observe 
 what she and her statesmen, ' ( men of compromise," as this 
 Commission calls them, said in the very clause of 1 Eliz. c. I, 
 which authorized the High Commission Court (App. 225) : 
 " And that it may please your Highness that it may be 
 established and enacted that such jurisdictions, privileges, 
 superiorities, and pre-eminences spiritual and ecclesiastical, 
 as by any spiritual or ecclesiastical power or authority, hath 
 heretofore been, or may lawfully be, examined or used for 
 the visitation of the ecclesiastical state or persons, and for 
 reformation, order, and correction of the same, and of all 
 manner of errors, heresies, schisms, abuses, offences, con- 
 tempts, and enormities, shall for ever, by authority of this 
 present Parliament, be united and annexed to the imperial 
 crown of this realm." And then comes the power to appoint 
 or create that Court. The idea of any English king or 
 Parliament having made any bargain or " settlement " with 
 the clergy (I do not say ' ' against " them) is a pure fiction 
 
 * Brodrick and Fremantle's "Ecclesiastical Judgments," p. 115. 
 It is a pity that they or somebody else do not continue that book, now 
 that there are ample materials for another volume.
 
 22 Relations of Parliament and Convocation. 
 
 contradicted by every bit of history. The nation has no 
 more made bargains with them than with the Pope, or the 
 Methodists or the Freemasons. They all go their own way 
 within the limits of the law of England. 
 
 Every ecclesiastical Act that was ever passed shows this 
 "besides. Whether they made bargains before the Refor- 
 mation or not I neither know nor care, nor had this 
 Commission any business to inquire, and Archbishop Tait 
 said they would not. It seems the fashion now for Com- 
 missions and Committees for revising anything, up to the 
 Bible, to take the bit between their teeth and disregard all 
 instructions and promises and go where they please. I do 
 know however, as most people do, I suppose, that the 
 nation always asserted its right to legislate against the 
 Pope, and did so when it chose before the Reformation as 
 well as after. That fundamental error of a right of the 
 clergy as a legislative body to bargain with the Crown and 
 the State runs through every High Church argument. 
 Even their " Submission, " recited in the Act of that name, 
 was an abject submission and no bargain. The very word 
 makes an end of it ; and so does the failure of their attempt 
 to qualify it by the " quantum per legem Christi licet/' 
 which they would have interpreted as they chose. On that 
 also the Commission and their historian are silent. The 
 ie Reformation Settlement/' which they are so fond of 
 talking about, was a settlement made by the State for its own 
 supremacy over the Clergy. 
 
 The High Commission Act however did recognize the 
 power of <( Parliament with the assent of the clergy in their 
 Convocation" to define heresy, but of neither of them 
 without the assent of the other (1 Eliz. 1, s. 20, p. 228) ; 
 smd that is their present real constitutional position and 
 relation, which neither party has any moral right to alter. 
 Doctrine and jurisdiction are very different things. So you 
 see that Canon Stubbs's version of the Elizabethan Refor- 
 mation has to be slightly altered into this : Convocation 
 never legislated at all, or was allowed to interfere with 
 Parliamentary legislation throughout her reign ; and Parlia-
 
 Parliament alone has never made Doctrine. 23 
 
 ment without Convocation passed the Conformity Act, and 
 had previously established an entirely new ecclesiastical 
 court, in which ecclesiastics might sit if they were appointed, 
 and which became so tyrannical and odious that it was twice 
 abolished with the two abolished Stuart kings. In short, 
 Convocation was not allowed to do a single thing in her reign, 
 except to prepare some canons which she did not ratify. 
 
 It is however also true, and I am as ready to insist 
 on that as any Ritualist, that Parliament alone never did 
 alter the doctrines or ceremonies of the Church, or the 
 Prayer Book, or the Articles, except at the beginning of 
 Elizabeth's reign, when it was absolutely necessary, in order 
 to prevent the Reformation being destroyed again by the 
 Marian clergy. All the Commissions which were authorized 
 under Henry and Edward to revise the old canons, and to 
 "make new ecclesiastical laws," 3, 4 Ed. vi., c. 11 (not 
 printed in the Report), were to have as many bishops and 
 divines as laymen ; and their only actual work, the Refor- 
 matio Legum, was never ratified, and came to nothing. 
 But not even that was entrusted to any Convocation. I 
 can see no more right (except might) for Parliament 
 to alter the Prayer Book without the general concurrence 
 of the clergy as well as the laity of the Church than 
 to alter the doctrines of the Methodists against the 
 wishes of their Conference, or to open Popish chapels to 
 Protestant preachers. All that would be pure tyranny and 
 robbery, which of course any supreme power can commit, 
 whether its "number is six hundred three score and six" or 
 one. If we are to profess to stand upon the Reformation 
 settlement, as both sides do, I feel bound to say that that is 
 it, though I should no more have been deterred from doing 
 the necessary thing in the first year of Elizabeth, or at two 
 later periods, by abstract theories about either kings or 
 churches, than the great men of those times were. 
 
 Parliament has from time to time legislated for various 
 dissenting bodies with their own proved consent, and in 
 order to give legal effect to their wishes. It does so from 
 time to time for the Church, and it would be only another 
 kind of tyranny to refuse to do it when there is no doubt
 
 24 Canon Stubbs on the Interpretation of Statutes. 
 
 about the real opinion of the whole Church to the satisfac- 
 tion of men of sense, which may be sometimes proved in one 
 way and sometimes in another, but is certainly not proved 
 by any act of the Convocations of clergy alone, who are not 
 a hundredth part of the adult members of the Church of 
 England. The Convocations never were the Church, nor 
 ever recognized as representing it, but only part of it. The 
 Houses of Parliament represented the other part until they 
 ceased to be necessarily Churchmen, that is, during all the 
 time that any " Reformation settlement, " or restoration of it 
 in the next century, was being made. I am glad to find 
 that this substantially agrees with the conclusion of another 
 Oxford Professor of History, Mr. Montagu Burrows, in his 
 " Parliament and the Church of England." Mr. Tomlin- 
 son's lately published " Review of the Report" proves still 
 more than I have, that when Professor Stubbs has a theolo- 
 gical object in view his historical object-glass is not only 
 far from achromatic, but so defective that vision through 
 it is altogether distorted, and its "images" altogether 
 imaginary. He seems to feel at liberty to " read" anything 
 "into" Acts of Parliament, and anything out of them, 
 according to his own theories or any contemporary gossip 
 as to what was intended to be done by somebody. The 
 Edinburgh Reviewer evidently thinks the same of him. 
 
 Lest I should be thought to have spoken too strongly, I 
 will give a specimen of the process by which the Commis- 
 sioners and their historian make statutes say and do what 
 they want. At p. xxxi, practically following the historical 
 Appendix, they foist into their account of the appeal clauses 
 of the Act of Submission, 25 Hen. VIII, c. 19, the words 
 " in which the [i.e., any] right of appeal lay," implying that 
 none did lie before as to heresy ; and then they add, " this 
 jurisdiction may not improbably have, if exercised at all, 
 been confined to matrimonial and testamentary causes." 
 The elegance of the style is striking ; but the accuracy is 
 more striking and more important. It is hardly credible 
 that there is not a single word of such "confinement" 
 in that Act, which expressly says that "all manner of
 
 All the Law Courts refuted by Mr. Joyce. 25 
 
 appeals shall thenceforth be made after such manner and 
 form as is limited for appeals in causes of matrimony, tithes, 
 &c, by the Statute " of Appeals of the previous year ; " and 
 for lack of justice in the Courts of the Archbishops, to the 
 King's Court of Chancery; and on every such appeal a 
 Commission shall be directed to " Delegates, the previous 
 Act having been prohibited all appeals beyond the Court of 
 Arches. And what makes it worse, all this had been 
 explained fully by Lord Campbell in the Grorham prohibition 
 case, citing Lord Coke, and other old decisions to the same 
 effect, including one about the deprivation of a dean, which 
 went four times to Delegates under three sovereigns, and 
 was finally confirmed. 
 
 One of the clerical jurists of the Ritualists, Mr. Joyce, has 
 been at their favourite game again of denouncing the 
 ignorance of the highest judges, and their judgments, 
 because Lord Campbell then made one or two insignificant 
 mistakes about dates (see Guardian of Jan. 23). But, like 
 this Commission, he has overshot the mark, by adding that 
 those mistakes were exposed and laughed at in the other 
 two Courts ; which nevertheless gave the same judgment. 
 All these things, and indeed all the proceedings of the 
 Commission, are valuable in showing us the fitness of ie the 
 Spirituality" for supreme judges, which is their object 
 throughout. 
 
 And can anything be more ludicrous than the Ritualistic 
 quibbling and hair-splitting about the exact nature of a truly 
 spiritual Court, on which the late Archbishop and the Lord 
 Chief Justice thoroughly posed several of the witnesses, in- 
 cluding the legal historian himself, who suddenly discovered, 
 'pro hdc vice, that such things were " rather out of his line," 
 when every one of the four Acts of Uniformity and every 
 clerical jurisdiction Act since have given or retained con- 
 current jurisdiction to the Assizes to try clergymen for dis- 
 obeying the Prayer Book, and to deprive, and imprison 
 them — the third time, for life — the Bishop sitting with the 
 Judges, if he likes ? This Commission was doubtless wise 
 in its generation in setting three such amateurs, and not 
 
 4
 
 26 How is the Church represented now ? 
 
 one even of their own High Church lawyers, to compose its 
 legal history, and to { ' go behind the Eeformation " as they 
 have, in spite of the Archbishop's promise for them. Perhaps 
 you may remember my saying that you or the Crown would 
 get better information on the professed subject of the Com- 
 mission from any two competent lawyers in a month for a 
 few guineas than from a large Commission — even if a fair 
 one — in two years. 
 
 Probably the aimers at clerical supremacy will ask, u Who 
 then represents the laity of the Church now ? Parliament 
 does no longer, and so who is left but Convocation," whether 
 Convocation should be itself enlarged to admit a few well- 
 behaved laymen or not — those mixtce personce, as Archbishop 
 Tait called a conspicuous one of those who are always 
 acting as a kind of gratuitous acolytes to the Convo- 
 cationists ? And on the other hand, we are told by those 
 tyrannical people who call themselves Liberationists, that 
 the Church has to pay the penalty of submission to all the 
 Jews, Papists, Infidels, and Heretics in Parliament for being 
 an " established " or a " State Church." If all that were 
 true, it would not make the Convocations into the Church 
 of England a bit more, though it would be — and to some 
 extent is — unfortunate, but inevitable. But no more so to 
 us than to every sect. None can flatter itself, nor all of 
 them together, that even this House of Commons represents 
 them any more than, or as much as the Church. The fact 
 is that we all, Church, Papists, Dissenters of all degrees, 
 have to trust to Parliament not tyrannically oppressing any 
 of us, but legislating for us in our turns fairly as we 
 want, in matters only affecting ourselves. Hitherto it has 
 generally done so, though of late not always, but has robbed 
 the Church as it never has any Dissenters. But that issue 
 is not between us and the enemies of the Reformation, but 
 between us and Dissenters in the opposite direction. And 
 it will puzzle the High Churchmen to invent any better 
 et working theory " than this. They may invent visionary 
 ones, which are all cunningly contrived to work out their 
 own supremacy, just like the concessions they have got from
 
 The Convocation Resolutions of 1882. 27 
 
 this Commission. But Parliament has not abdicated yet, nor 
 is going to undo all the Keformation statutes at the bidding 
 of the majority of this packed Commission. 
 
 Probably a very small proportion of the readers of the 
 Report have paid as much attention to the following 
 passage (already referred to) as its solemnity, and its 
 significance in another way, deserve (p. lv) : — "We have 
 thought it right to pay very careful attention to the resolu- 
 tions of the Lower House of the Convocation of Canterbury, 
 communicated to us, &c." (see next page). And they 
 recommend the reciprocal attention of their Report being 
 " ordered by your Majesty to be laid before the Convoca- 
 tion ; " or rather they would, if they dared to take such a 
 solemn step without instructions : ' ' it does not come within 
 the scope of our instructions to make a formal recommenda- 
 tion on the subject ;" and so they only venture to be cc not 
 insensible of the advantage which might ensue " from such 
 a revelation. What charming scrupulosity, to be sure, and 
 what timid shrinking from the responsibility of advising 
 without instructions, that a couple of Blue Books should be 
 sent across the street to the people who are the most certain 
 in all England to have already devoured them, and to have 
 begun talking of them as a public document as soon as 
 possible. No instructions to make a formal recommenda- 
 tion of a formal sending to people of what they had got long 
 before ! Where then did they find any instruction to make 
 formal recommendations of a million times more conse- 
 quence, amounting to an ecclesiastical revolution ? These 
 swallowers of that enormous camel seem to be choked with 
 very small gnats. In the same way they dare not include 
 the necessary three lines (see my Bill, in vol. ii, p. 406) for 
 dealing with offending bishops, because that also was not 
 specifically in their instructions ; and yet they did ask many 
 questions about it, and learnt that bishops have been con- 
 victed and deprived, and the proceedings upheld. 
 
 But I now ask your Grace and other people to follow their 
 example, and to pay " very careful attention " to those
 
 28 The Convocation Resolutions : 
 
 Convocation resolutions of February 1882, for they deserve 
 it. Here they are (see ii, 400) : — 
 
 I. "No settlement of ecclesiastical judicature will be 
 satisfactory [to Convocation] which does not proceed upon 
 the principle that the ancient canonical courts be preserved, 
 subject to such amendments as may be deemed necessary, 
 and shall receive synodical approval " [i.e., that the ancient 
 courts shall now be reformed by Convocation] . 
 
 IV. That the bishop may stay all proceedings, or hear the 
 cause [which hardly any bishop has done since the Reforma- 
 tion] either in camera or in his court. 
 
 VI. That in cases of appeal to the crown for the main- 
 tenance of justice [are there some appeals for the main- 
 tenance of injustice, and what are they ?] in questions 
 involving doctrine and ritual, the judgment of the spirituality 
 shall be required on the precise points of doctrine or ritual 
 which are involved ; and 
 
 VIII. That "the spirituality" be taken to mean the 
 [bishops], assisted, if they think fit, by learned divines. 
 [Fancy the bishops wanting the assistance of divines.] 
 
 X. That where a clerk has been acquitted, no appeal shall 
 be allowed. 
 
 XI. That Her Majesty be requested to grant her royal 
 license to convocations to enact such canons as may be 
 necessary. 
 
 I know that the Commission does not adopt all this, but 
 we shall see how near it goes, and we must for other reasons 
 see what it means. It means, first, a new set of canons, which 
 will forthwith repeal the old ones of 1603 which recognize 
 " the Advertisements (Admonitiones) published anno septimo 
 Eliz.," and order surplices, and not albs and other Popish 
 vestments, which had vanished forty years before ; for every- 
 body knows that is the first thing that all the Ritualists 
 want, exactly contradicting the two aforesaid reports of the 
 Ritual Commission of 1867, much more unanimous than this. 
 
 On that particular proposal this Commission is silent. 
 But on those relating to the judicature which is to unsettle 
 all those judgments, they are far from silent. What is the
 
 What they mean. 29 
 
 meaning of their telling Her Majesty that though they do 
 not presume to recommend, they are not insensible to the 
 advantages of (in plain English) consulting the Convocations 
 about reforming ecclesiastical judicature, for the first time 
 in English history, from the Statute against appeals to Rome 
 down to Bishop Wilberforce's last bit of boasted scheming 
 in 1873, to degrade his three great rivals from judges, as 
 a prelude to reviving his and Blomfield's and Philpotts's 
 cherished scheme of practically making all the bishops a 
 court of appeal from the Privy Council. He threatened the 
 House of Lords then with " the alienation of the whole 
 Church of England if they rejected it," which they forth- 
 with did by a large majority. (See his "Life," iii, 417, and 
 "Hansard "of June 1850.) 
 
 The next of the Convocation demands which this Com- 
 mission practically concedes and recommends, is that the 
 judgment of the spirituality, embodied in the bishops, assisted 
 by other theological assessors, "shall be required in questions 
 involving doctrine or ritual f 3 and that not only in appeals 
 (as Convocation said), but in inferior Courts too. So there 
 you have the whole scheme (for the details are immaterial 
 just yet), which practically means a new Court of High 
 Commission, consisting of some five "permanent lay judges," 
 assessed by all the bishops of the province or of all 
 England, if any one lay judge chooses to invoke them : an 
 odd condition certainly, if the judgment of the spirituality 
 is worth anything. 
 
 It is true that the bishops are only to be assessors to the 
 final court, on which the ecclesiastical law of England is to 
 depend (as all these people say) ; and Mr. Beresford Hope 
 said in his evidence that "an assessor's only privilege is 
 to have his advice disregarded ;" and he has now come to 
 wonder how he was ever "fascinated by Bishop Wilberforce's 
 purely lay court." He actually did not see what Wilber- 
 force was scheming after under that guise : nor probably 
 did many other Members of Parliament then, or the trick 
 would not have succeeded, even with Mr. Gladstone's help, and 
 more discreet silence. But Mr. Hope's friends can see farther
 
 30 The New Court of High Commission. 
 
 than he does. A mere assessor is not a very formidable 
 creature; and when a Judge or Court is ignorant of 
 specialities, as engineer arbitrators of the laws of evidence, 
 and legal ones of engineering, and an Admiralty judge of 
 some nautical technicalities, and possibly a whole court of 
 legal Churchmen of the phrases of the Church, which no 
 more belong to the clergy than to them, an assessor or two 
 may be useful to inform the Court of what it may not know. 
 And real information is not likely to be disregarded. Advice 
 on what the Court can judge of as well as the adviser may 
 be, and ought to be if the Court thinks it wrong. 
 
 Therefore a multitude of assessors are of no use, and 
 are out of place, and were never heard of before the five 
 episcopal Assessors in rotation were absurdly foisted 
 into the Judicial Committee in 1876. The Commission 
 evidently calculated that a large number of assessors would 
 hardly be disregarded if they should be tolerably unanimous. 
 It is quite clear that the Convocation thought so, and there- 
 fore the majority of the Commission made the assessors far 
 exceed the judges in their new Judicial Committee, or 
 nominally lay Court of High Commission; for it is only 
 the old enemy under a new name, with a whole province or 
 kingdom of episcopal advisers. Mr. Hope boasts that the 
 Eeport "has slain the Judicial Committee" for them — 
 that is, by this new assessment ; for otherwise it is to be 
 simply a body of lay judges te learned in the law," appointed 
 by the Crown again. Moreover, they may be anybody 
 whom the Prime Minister is pleased to pronounce " learned 
 in law," as the present one did a man who had never prac- 
 tised it, and yet was put into the Judicial Committee four 
 days before it sat on the most important doctrinal case ever 
 tried there, Sheppard v. Bennett (L. R. 4 P. C. 371), and 
 for aught we know, made the majority, which was all but 
 announced to be as small as possible. After his death it 
 was published, and was well known before, that he was 
 intimately connected with the Guardian; so was one of 
 the clerical members of this Commission, according to the 
 Edinburgh Review. A Prime Minister however can only
 
 The Assessment Scheme. 31 
 
 make two such members of the present Committee. Of the 
 Commissioners' Judicial Committee he could make any 
 number — surrounded by a Province of advisers. With a 
 sufficient amount of packing of Commissions and Courts and 
 the Bench of Bishops, the Ritualists need not despair of 
 undoing the Reformation, if other people go to sleep. 
 
 It seems funny, that of all the ecclesiastical Judges in 
 the world, the one they leave naked of assessors is that very 
 Dean of Arches about whose uncanonical appointment the 
 High Churchmen are always raving, and Ritualists pretend 
 that that is why they don't obey him — as if they ever 
 obeyed his most orthodox and canonical predecessor a bit 
 more. On the other hand, a bishop is not to be trusted to 
 sit alone in his own Court, or even with his Chancellor- 
 degraded into an assessor, as the Archbishops have been in 
 the Privy Council, but he must get a theological adviser 
 too, and by the advice of his Dean and Chapter, if he has 
 the bad luck to possess one, for otherwise he is allowed to 
 choose his own; but a theological adviser he must have, 
 as the Pope has a confessor. 
 
 But though the Dean of Arches is left without assessors, 
 he is to be provided with a new functionary — an execu- 
 tioner : not the crier of the Court, who used to et nonsuit " 
 plaintiffs in the Courts of Nisi Prius till the Judicature Act 
 came and swept him away ; not the Registrar reading the 
 formal judgment after the Judge has signed it ; but nothing 
 less than an Archbishop : whether in full canonicals, or in 
 Convocation robes, or in his modern walking dress, the 
 Report forgets to prescribe. The poor Archbishop may 
 think the Dean as wrong as Archbishops Sumner and 
 Musgrave did the then Dean who decided against Gorham ; 
 the reversal of which decision by the Privy Council, or at 
 any rate the reasons for it, and the doctrine invented for 
 Mr. Gorham — it now turns out, by Archbishop Sumner (see 
 Ed. Rev. 247 and Ev. 6592) — appears to be thought by all 
 parties, including Gorham himself, to have been wrong, 
 as it was at the time by one of the ablest of judges, 
 Knight-Bruce, L.J. The High Churchmen are crying out
 
 32 The New Executioners, 
 
 long before they are hurt, in assuming that that decision 
 would not be " open to reconsideration and dispute" in the 
 Court of Appeal, though of course not in an inferior one, in 
 any future suit on some assertion about Baptismal Regene- 
 ration. Still the Archbishop must do the bidding of his 
 Dean, and execute the man whom he considers innocent, 
 under this new scheme of Ecclesiastical Judicature. And 
 there are some minute directions for getting exactly the 
 right bishop to execute if the proper one is " unable." 
 This Commission has learnt nothing of the danger of 
 prescribing details from those two wretched pieces of 
 legislation, the Clergy Discipline and the Public Worship 
 Regulation Acts. For now, just when the lawyers have 
 found their way, by the advantage of many suits, through 
 all these labyrinths, and got it pretty well marked out, they 
 are to be started afresh into another maze of blunders and 
 litigation from over-legislation, and a still greater number 
 of appeals — probably two more in each case, as one bishop 
 is to sit first and all the bishops last, if required. 
 
 Besides that, if this new Court, receiving its instructions 
 from " the spirituality " who have heard the case argued 
 before them — probably after the Court has heard it once — 
 is convinced that it ought to vary a decree of the Dean of 
 Arches letting off somebody who they think ought to 
 have been suspended or deprived, the Court of Appeal 
 cannot do it, but must send the cause down again with 
 orders to the Dean to order his archiepiscopal executioner 
 to come in and do that awful business. They have 
 evidently " got rather mixed," as the slang goes, between 
 deprivation, degradation from orders, and institution to 
 livings. The last is a kind of corporeal operation, but 
 can be done even by the lay deputy of a bishop ; and we 
 read continually in the newspapers of the Vicar General 
 of Canterbury doing it ; and donatives have no institution. 
 Degradation used to be called " pulling a man's gown over 
 his ears." When collegers at Eton were sent off to King's, 
 they underwent the terrific operation of " ripping " in my 
 time. I dare say that has been reformed away now because
 
 
 Possible Martyrdom of an Archbishop. 33 
 
 it was so old, though it was only the gown that suffered, 
 not the boy. I see no objection to degradation, if there is 
 any such thing still, being done by the same hands that 
 confer orders. But deprivation is absolutely nothing but 
 saying and signing the sentence of the judge, which makes 
 a living vacant ; and suspension is still less. Yet this new 
 grand jury of ecclesiastical masters of ceremonies think 
 " our present unhappy divisions" are going to be "healed" 
 by sending the Primate of all England into Court to repeat 
 a few words after Lord Penzance, which words he may think 
 utterly wrong, and say so. 
 
 It is hardly credible, except on the hypothesis that 
 they mean to make every ecclesiastical prosecution as 
 costly and as ridiculous as possible, that after all the 
 experience we have had of defied suspensions, and now 
 deprivations, as I predicted in my evidence, they propose to 
 begin that game again, and that there are to be two succes- 
 sive suspensions defied, before even deprivation is to begin, 
 by what they facetiously call ''summary process," after 
 waiting three months more. They pretend to abolish im- 
 prisonment for defying deprivation, suspension, or inhibition, 
 and yet say that the rebel is to be treated as a disturber of 
 public worship, under the Act of 1860, who may be im- 
 prisoned by two justices for two months and then come out 
 and begin disturbing again, and being again imprisoned. 
 
 But a more dreadful catastrophe may happen under this 
 new judicature Act than the imprisonment of clergymen 
 who persist in " standing where they ought not," in pulpits 
 from which they have been suspended or deprived. I 
 wonder what the bishops who profess to be shocked at 
 those inevitable imprisonments think they would do with 
 clergymen who persisted in preaching infidelity to the 
 admiring congregation which they would doubtless get, 
 and could not be stopped without that ultima ratio of the 
 law. The very two bishops who helped to invent this 
 execution scheme have said also that the Archbishops ought 
 to refuse at all hazards to obey an order of the Court to 
 deprive or suspend if they dissent from it : which is to
 
 34 Plaintiffs to have no Appeal. 
 
 assume a final veto besides the initial one. The present 
 Primate of all England has not yet declared whether he 
 agrees with them. But if he does, and if it is true that he 
 is employing a celebrated Church Union lawyer to build 
 a Bill on the lines of the Report, and can get it turned into 
 an Act, we may see a vicarious martyrdom on the grandest 
 scale. The Queen's Bench would not hesitate five minutes 
 about " attaching " an Archbishop who returned " non 
 possumus " to their mandamus to obey his own Court or the 
 new Appeal Court. And the rebelling parson would escape, 
 because the scheme provides no substitute for an archiepis- 
 copal executioner, who only refuses to act ; and it would be 
 merely making fun of the Archbishop if it did. 
 
 The abolition of appeals against acquittals, proposed by 
 Convocation and Sir R. Phillimore and Lord Devon, involves 
 a more important confusion of ideas, for the other is mere 
 formal rubbish. If a man is acquitted wrongly of stealing 
 a goose, it does not alter the law of theft a bit, whether the 
 rule of no appeal in such cases is, on the whole, wise or 
 unwise. There it has been in all ages. But if there had 
 been no appeal against acquittals for nonconformity in 
 either doctrines or ceremonies, every reversed decision of 
 Sir R. Phillimore that certain things are the law and 
 doctrine of the Church of England would have been law to 
 this day, and irreversible by any known process. And so 
 would every decision that a clergyman may do anything 
 and preach anything that a semi-popish or unbelieving Dean 
 will tolerate. Nay, every decision of a High Church bishop 
 of O. or E. in favour of his own party, and of a Low Church 
 bishop of L. or N. in favour of his party, whether by trial 
 or veto, would settle the law of England in one way in E., 
 O., &c, and the other way in L., N., &c. For nobody will be 
 able to open this preliminary turnstile against a bishop's will 
 if the veto is retained after your strong reports against it. 
 
 They forget too (indeed what do they remember of these 
 things ?), that no clergyman is ever more than monished for 
 only mistaken nonconformity apart from contumacy : not 
 even for heresy, if he retracts it. Nor is deprivation for
 
 The Bishop's Veto. 35 
 
 punishment, but to protect the laity of the Church of 
 England, who outnumber the Ritualistic clergy a thousand 
 times, from having their pulpits usurped by real Dissenters 
 from the law and doctrines of the Church. The Bishop of 
 Oxford put it to me that by deprivation " the man is burnt " 
 (5676), and "cannot repent" (5669). I never object to a 
 joke, or to a reasonable metaphor, unless I see it is to be 
 made the basis of an argument, and then I do. So I re- 
 minded his lordship that there is a rather practical difference 
 between being burnt and being sent about your business, 
 to go and preach your favourite heresy, or perform your 
 ceremonies, and wear your chasubles and albs and tunicles 
 in any other place that will have you, but not in our churches, 
 where these things are not the prescribed wedding garment, 
 but proscribed, as the supreme tribunal has decided so often 
 that no clergyman can possibly be more ignorant of it than 
 poachers of the game laws. He is no more burnt than an 
 obstinate claimant of Cuddesdon Palace, who would be 
 ejected by law, and then kept in prison if he defied it. 
 
 After the bishops have practically abandoned again the 
 power which was foolishly given them by the Clergy 
 Discipline Act, of sitting as judges in the Diocesan Courts, 
 and now always send these cases to the Provincial Court at 
 once, why need these philosophers of Laputa step in and 
 declare that they know better, and tell the bishops that 
 they ought to increase the expense of suits by sitting 
 themselves, and with all their new assessorial paraphernalia, 
 just for the pleasure of being always appealed against if 
 they condemn anybody, and being abused as partisans if 
 they acquit ? 
 
 Much that I have said applies to the question of the veto ; 
 and, after the remarks of Lord Bramwell, quoted at p. 8 
 and the separate reports of yourself, the Lord Chief Justice, 
 Lord Penzance, and the others, I have only one thing to 
 add about it, and that is from the Commissioners them- 
 selves, though one would rather have expected it in one of 
 the minority reports. They say solemnly several times over 
 that " their scheme must be regarded as a whole;" and
 
 36 The " indefeasible right " to appeal. 
 
 then (p. liii) " The scheme is framed on the assumption 
 that every subject of the Crown who feels aggrieved by a 
 decision of any ecclesiastical Court has an indefeasible right 
 to approach the throne itself with a representation that justice 
 has not been done him, and with a claim for the full 
 investigation of his case. No ecclesiastical Court can so 
 conclude his suit as to bar this right." An admirable 
 sentiment, and very grandly expressed, if with a little 
 redundance of words, and if open to a little cross-exami- 
 nation which I would rather have to apply than to undergo. 
 But grand maxims generally are ; and therefore accepting 
 it as an axiom, may I ask how the Englishman's indefeasible 
 right to approach the throne for justice and a full investiga- 
 tion of his case, from a bishop or au archbishop sitting in 
 his court, becomes defeasible, and no right at all, when the 
 bishop sits in his own room reading a complaint and the 
 snswer to it without a word of proof for either. I am quite 
 unable to guess at the answer, and I look in vain in the 
 Eeport for any, beyond the statement that abolishing the 
 veto would lead to '.' complications" (liii). I should say 
 that its existence has led to a good many already, if it were 
 necessary to answer such a statement ; which only indicates 
 that the writer did not know what to say, and his colleagues 
 could not help him. I am convinced by the evidence that 
 the balance has been turned by the action of some bishops 
 decidedly against the veto ; and that the risk of frivolous 
 and vexatious suits can be obviated by giving the Court 
 power to dismiss them with full costs as soon as it perceives 
 them to be so. The law must provide for the worst 
 specimens of bishops, as of other people, not the best. 
 
 And for that reason too they are, as a class, not generally 
 fit to be judges. All other judges are specially appointed 
 for their supposed fitness to act as judges. Bishops are 
 not, and need not be. There are always a few who would 
 probably be very good ones, but many who certainly would 
 not. Lord Penzance gives other reasons, perfectly good and 
 unanswerable, which I now reprint here (see p. 54). That 
 does not the least interfere with the recommendations of
 
 Obiter Dicta of Judges. 37 
 
 your Grace and him, and the Lord Chancellor on a former 
 occasion, that all complaints should go first to the Bishop, 
 and that he should have powers of monition, subject to 
 bond fide appeal ; for which also my Bill provides, declaring 
 disobedience an ecclesiastical offence, as Lord Penzance 
 says it is already. 
 
 I promised at the beginning to say a few words on 
 another subject on which the views of the Commission are 
 evidently hazy. I am afraid I tried in vain to make clear 
 to so learned a man as the Bishop of Winchester the 
 difference between judicial dicta not necessary to support 
 the judgment, which lawyers call obiter dicta, and the reasons 
 which are logically necessary for it. Nor could I do any 
 better than at last say No, to his proposition that it is 
 ' ' rather formidable for the Church that the Privy Council 
 should sometimes decide by the voice of one man/' that 
 (for instance) Mr. Bennet was not deprivable for publishing 
 the amendment which Pusey invented for him as the nearest 
 approach that was safe to venture on to the assertion of 
 the Keal Presence "in the hands" of the communicants, 
 according to the famous Keble revision of not into as. 
 I said " It is no use calling a thing formidable which is 
 inevitable. If a Court is divided it is divided." Judges 
 cannot yet be starved into agreement on legal propositions, 
 or be shut up like the Cardinals till they elect a Pope by 
 a good large majority. Even Lord Cairns's Privy Council 
 order, which the late Chief Baron and most other lawyers 
 thought illegal, attempting to interpret an oath by Royal 
 authority, not "to regulate practice in the Privy Council," 
 but to direct the judges what they may talk about outside, 
 and which could not be enforced if disputed, does not 
 order judges who dissent to say that they agree. 
 
 Then as to the question of " interpretation making law." 
 If a written law is doubtful, what are judges for but to 
 ascertain it ? Indeed what is all judging for, except to deal 
 with people who either dispute or break the law ? The real 
 question is, whether we are to have honest judges who
 
 38 Lawyers the only fair Judges. 
 
 will decide on the best logical and legal reasons, or some 
 others, who have decided everything in their own minds 
 beforehand, and are impregnable to arguments. Lawyers 
 are not honester than other people ; bnt their very business 
 of advocacy, which is entirely different from partisanship or 
 personal feeling, and constantly having to act against it 
 and against their own friends and interests, and their know- 
 ledge that the eyes of all the profession are upon them, make 
 them far more impartial judges than any other class of 
 people. No doubt they may have strong prepossessions on 
 subjects which they have fully considered ; and then they 
 will naturally follow them, unless they are convinced by some 
 new arguments. But they often change their minds in the 
 course of a discussion, upon some unexpected thing turning 
 up — or without it ; and very often say they are sorry that 
 the law is what it is, but they are not there to amend the 
 law but to declare it. One of the strongest (late) judges of 
 the Court of Appeal told me, and probably others of his 
 friends, that two of them actually changed their minds 
 while writing their judgments in the great Penzance v. 
 Gochburn case, and so the majority was changed, and the 
 decision given for the Dean of Arches, which the House of 
 Lords affirmed unanimously. 
 
 Yet this Commission wants to overwhelm supreme and 
 great judges of this kind with a heap of clerical assessors, 
 who are of course meant to be their masters, and not " to 
 have the privilege of being disregarded." And they say 
 (liii) as an excuse for it, " considering how widely different 
 [how widely ?] a matter the legal interpretation of docu- 
 ments must often be from the definition of doctrine, we 
 [those amateur laymen as to law] hold it to be essential that 
 only the actual decree, as dealiug with the particular case, 
 should be binding authority in the judgments hitherto [there 
 we have the entire cat let out of the bag] or hereafter to be 
 delivered, and that the reasoning in support of those judg- 
 ments, and the obiter dicta [which last now go for nothing, 
 as every lawyer knows] should always be allowed to be 
 reconsidered and disputed." And they had said just before,
 
 The Scheme for fluctuating Judgments. 39 
 
 "It is not the function of lay judges appointed by the 
 Crown to determine what is the doctrine of the Church, but 
 to decide whether the impugned opinions or practices are 
 in conflict with the authoritative formularies of the Church 
 in such a sense as to require correction ? " 
 
 Do they not know that this last statement is exactly what 
 the Judicial Committee itself has said over and over again, 
 and other great ecclesiastical judges before it ? So it need 
 not be either reformed away, or (i slain, " or overridden by 
 assessors, in order to teach it that it has not to determine 
 what the doctrine of the Church is, but only what it is not. 
 
 Again, have they forgotten that the right of the Court 
 itself, but of no inferior one, to reconsider both its decisions 
 and the reasons for them was asserted by the Judicial Com- 
 mittee itself, and acted on in the very case which has raised 
 the greatest fury among the Ritualists, because on most 
 points, though not quite all, it repeated the previous decisions 
 against them. Certainly it does not " reconsider and 
 dispute them " to the extent of treating the previous ones 
 as no decisions or reasons worth attending to, but only as 
 not to be reversed without very clear proof that they were 
 wrong. When this Commission professes to want ' ( only the 
 actual decree as dealing with the particular case to be of 
 binding authority/'' they really mean that they want it not to 
 be of binding authority, and so to have no Act of Uniformity 
 at all ; which is just what all the most candid Ritualists 
 avowed. But it is needless to hunt down the folly of this 
 scheme of enacting that judges are to pay no respect to the 
 reasons and judgments of their predecessors, and so to keep 
 the ecclesiastical law of England in a state of perpetual flux : 
 surplices to be the only lawful wear to-day, albs and 
 chasubles next week ; Baptismal Regeneration, with Arch- 
 bishops Sumner and Musgrave, and Bishop Baring (suppose) 
 for assessors, to mean regeneration at any time except 
 baptism, and to mean what it says, with Bishops Blomfield 
 and Philpotts and Bethell \ and the " Real Presence in the 
 hands " to be the doctrine of the Church, or not, as the 
 majority of the Bishops of the Province and of the day may
 
 40 The Commission Scheme for fluctuating Judgments. 
 
 think. There is nothing like concrete examples to make 
 people understand abstract propositions. 
 
 I should like to know why " the definition of doctrine " 
 from written documents " must be widely different from the 
 interpretation of documents/' if doctrine had to be defined, 
 as ritual inevitably has, but doctrine not. What the Eccle- 
 siastical Court has to do, and what the Civil Courts have to 
 do for Dissenters when they dispute what doctrines may 
 legally be preached in their chapels, is simply to compare 
 two written documents, the one complained of as heretical 
 (by that branch of Christians) and the other their settled 
 standard of faith — Prayer Books, Westminster Confessions, 
 and all sorts of things, even down to the known faith of the 
 founder of Lady Hewley's charity. How is that any harder, 
 or wanting more assessors to overbear the real judges, than 
 the absolute interpretation of one legal document which has 
 often to be made in civil cases ? 
 
 It must not be forgotten that the High Church party 
 avow distinctly that their new Judicial Committee encom- 
 passed with clerical assessors is only their second best 
 scheme, and a step to what they really want. Canon 
 Liddon volunteered to say to the Commission that their 
 proposal of lay judges in preference to the old mixed court 
 with one or two episcopal judges on it was "prima, facie 
 inconsistent" with their avowed desire to have a purely 
 clerical one (7325). He tried to explain away the incon- 
 sistency, with such success as may be guessed. Bishop 
 Wilberforce had done it better as " S. Oxon," when he 
 first began moving Mr. Gladstone to get it done, to whom 
 he wrote, and his son publishes it for him, " The first and 
 great object is to get the bishops off the Privy Council. 
 Their presence there gives to the Court the look of an 
 Ecclesiastical Court, and so commits us. If we can get 
 nothing more, I would far rather be rid of them there *■ 
 (" Life," iii, 103). And he quoted Bishop Philpotts as saying, 
 " I decidedly prefer abandoning the Court to the lawyers, if 
 we can thereby secure a reference of doctrinal questions to 
 the Church " — meaning the Bishops. This new plan of the
 
 The Ridsdale and Purchas Judgments. 41 
 
 Commission is that very thing ; and everybody who attends 
 to these matters knows very well that it is all a means to 
 an end, and that end is the reversing of every decision of 
 the Judicial Committee on these subjects, except those on 
 the Bennett and Heath and Yoysey heresy cases (see Dean 
 Cowie's evidence, 4483). 
 
 The Ridsdale one is the most important to them, and as 
 it involves a purely legal judicature question I will add a 
 little to explain it. I have been particularly asked to do 
 so, on account of the Law Reports being inaccessible to 
 most people, and the Ritualist writers taking care never to 
 notice the most important parts of the judgment on the 
 most undisputed facts. Canon Stubbs put it to me, rightly 
 enough, that it stands logically on the basis of the Adver- 
 tisements of 7 Elizabeth (May 1566), which he evidently 
 did not think were sufficiently proved to have been issued 
 by her order or authority under her Act of Uniformity. 
 One of them is : — " Every minister saying public prayers 
 or ministering the sacraments shall wear a comely surplice 
 with sleeves." But neither he nor one clergyman in a 
 thousand seems to have the least idea of the principles on 
 which the legality of usages which may have had a legal 
 origin is determined in every Court of this kingdom, and 
 always has been by the greatest judges. It has been held by 
 all such judges, as people may see in the Ridsdale judgment 
 if they choose,* and in Lord Campbell's above-mentioned 
 judgment in the Gorham case, that long and undisputed 
 usage proves its own legal origin, if such an origin was 
 possible ; and here there was actual provision made for it. 
 
 So that evidence of the usage alone would be enough, if 
 there were not a word of anything else surviving, except 
 that Act. Of the universal usage from the time of the 
 Advertisements till quite lately, there is no dispute. More- 
 over the fact that they were completely authorized has been 
 attested by nothing less, and by many things more, than 
 three Convocations, in some canons of 1571, only five years 
 after the Advertisements ; of 1603, and of 1640 ; which last 
 
 * 2 Probate and Divorce, 304. And reprinted by H. King & Co., 
 the Folkestone Ritual Case," 1877.
 
 42 Three Convocations received the Advertisements. 
 
 call them, not only ' ' published in the 7th year of Elizabeth M 
 as the others do, but " the Advertisements of Queen 
 Elizabeth of blessed memory.'" It does not signify for this 
 purpose that the canons of 1571 and 1640 were or became 
 invalid for different reasons (see Cardw ell's "Synodalia"). 
 They are equally the utterances of Convocation, to whose 
 judgment we are now told that every such question ought 
 to be referred. And what can be more absurd than 
 members or supporters of Convocation now setting up for 
 knowing better what was done than three Convocations 
 within a century of the time when it was done, and all the 
 bishops and great men whom I will name presently, and 
 even the vacillating and High Church Cosin, and the bishops 
 after the Savoy Conference, who either anticipated or met the 
 Puritan objection that the Ornament Rubric might t( bring 
 back the vestments " which had then been gone for just 
 a century. If they did not mean to obviate it they were 
 rogues and nothing else. It was true that the (illegal) 
 rubric of the Jacobean Prayer Book, which had not the word 
 " retained, 33 till these bishops so inserted it, would have 
 legally restored the vestments. It is singular that they 
 never were restored even while that rubric stood through 
 the two first Stuart reigns. In fact both parties were 
 really fighting about the surplice only. 
 
 Lord Eldon once said that he would presume a private Act 
 of Parliament, if necessary, to support a long-established 
 usage, not contrary to the general law ; and he several 
 times did presume authorized variations of old College 
 Statutes without a scrap of direct evidence but usage. 
 People who think they know better forget that, if the judges 
 were as foolish as themselves, the longer any usage has 
 lasted the more certain it would be to be condemned the 
 first time it comes into Court; for the less chance there 
 would be of any direct evidence of its legal origin surviving. 
 And they spend their time in fishing up superfluous proofs 
 that Elizabeth did not do this or that particular thing up 
 to 28 March 1566 ; as if all that could prove that she did 
 not do the requisite thing afterwards, before her Metro-
 
 Three legal Principles support tliem. 43 
 
 politan and those three Convocations solemnly accepted the 
 Advertisements, and every bishop and clergyman in England 
 began obeying them for three centuries. 
 
 The other legal principle which they either cannot or 
 will not understand, or rather two combined, are (1) that 
 obscure laws like the Ornament Rubric of 1662 are to be 
 interpreted by clear ones like canons 25 and 58, ordering 
 surplices only, and not clear ones by subsequent obscure 
 enactments ; and (2) that, if the two can stand together, the 
 earlier is not repealed by the later.* The absurdity and 
 impudence of calling the rubric " plain/' when its meaning 
 is the very thing the two parties differ about, and nobody 
 dreamed of their " plain meaning" till a few years ago, 
 does not seem to strike the ritualistic pamphlet-writers ; or 
 that of assuming that " retained" means "restored." I 
 dare say the majority of your late colleagues are prepared 
 to say that the interpretation of ecclesiastical laws and 
 customs " differs so widely " from civil ones that they are 
 entitled to " plead their clergy," and be exempt from legal 
 principles ; and every Ritualist is confident that a genuine 
 ecclesiastical court of ecclesiastics would soon make mince- 
 meat of them. Probably they would, or of any others that 
 might stand in the way of their previous theological conclu- 
 sions. But the people in England are not yet such fools as to 
 deliver over the laws of England to a few thousand clergy, if 
 they only understand what they are doing. My present object 
 is to help them to understand it. The Ritualists had better 
 understand too, that the moment they get the Church dis- 
 established, into the civil courts they go, and may whistle 
 for clerical assessors and privilege of clergy there, but none 
 will come j besides that they would soon be trampled to 
 death by laymen with the power of the keys — of the money- 
 box and of the ballot-box. One of their own bishops said 
 "nine out of ten laymen are against them." 
 
 Not that the judgments against restoring the vestments 
 rest only on those principles, which are principles of 
 common sense as well as common law. They proceed also 
 * See Maxwell on the Interpretation of Statutes, cap. vii.
 
 44 The Advertisements proved by Evidence of a Century. 
 
 on the Visitation Articles and acts and writings of more than 
 forty bishops, besides other officials, continuously from the 
 date of the Advertisements till the Puritan rebellion ; all of 
 which Articles and acts and statements would have been 
 lies or illegalities, and certain to be resisted as such, if 
 "order had not been taken by the Queen with the advice 
 of her Commissioners or the Metropolitan," as these acts 
 and documents all inserted or implied. Archbishop Parker, 
 who was complaining up to the date I mentioned that he 
 could not get the Queen's approval of the Advertisements, 
 and saying that he would not stir without it, was sooq 
 afterwards, viz., in May 1566, telling the other bishops 
 to enforce them, and they were doing it. And they were 
 mentioned by name or indisputably referred to as law, by 
 the other Archbishop, Grindal, in 1576, by the next Metro- 
 politan, Whitgift, in 1584, by Parkhurst of Norwich in 1569, 
 by Cox of Ely about 1572, by Hooker in 1594, by Thorn- 
 borough of Bristol in 1603, besides the three Convocations ; 
 and also by Richard Cosin, Chancellor of Worcester and 
 Dean of Arches in the latter part of Elizabeth's reign.* 
 Among the bishops who enforced them were the most High 
 Church ones of those days, Laud and Wren, and, somewhat 
 later, Cosin (John) . I need hardly say that these few pages 
 are a very brief summary of the principal arguments, but I 
 think sufficient for this purpose.f 
 
 It must be remembered that surplices, copes, hoods, albs, 
 chasubles, tunicles, were all to be used under the first 
 Edwardian Prayer Book, and the second hardly lasted a 
 year before the old vestments were all revived by Mary ; so 
 that they would be literally " retainable until further order " 
 under Elizabeth, though it would have been nonsense in 
 1662 if it meant things that had been out of use for a 
 century, which surplices alone had not. 
 
 People will naturally ask, as I did till I learnt from 
 
 * In his " Answer to two Treatises of a certain factious libel put 
 forth under the title of an Abstract of certain Acts of Parliament, 
 &c, 1584." It vras anonymous, but stands in the catalogue of Lincoln's 
 Inn Library as his. 
 
 t See the Purchas judgment in (L. E.) Privy Council, iii, 349.
 
 The Ritualists have no Answer. 45 
 
 meeting and reading the pamphlets and articles of the 
 literary champions of the vestments, How do they profess 
 to answer all this ? By the best of all methods in such 
 cases, viz., ignoring it altogether in their writings ; and in 
 their talk, when they must answer, saying that the Judicial 
 Committee made more of something else, viz., the earlier 
 letters of Archbishop Parker up to that 28 March 1566 : 
 which is as untrue as any assertion could be, and immaterial 
 if true; and then by such others that I had to end the 
 discussion thus : " You are the most unfortunate contro- 
 versialists in the world : you are beset by a host of con- 
 spirators of the highest rank and character, including three 
 of your own parliaments, for a whole century after the 
 critical epoch, and by the undisputed use of two more 
 centuries, and now by two judgments of the Supreme 
 Court. You all but say these have been all liars, fools and 
 rogues ; and so they have, if the Advertisements were never 
 duly issued.-" If they were, the surplice (and cope, black 
 tippet or stole,* and hood) were the only vestments of 
 the first Edwardian Prayer Book and the Canons that 
 remained either actually or legally in use at the Restoration 
 and long before it, and therefore the only ones capable of 
 being ' c retained : " which the Ritualists never meet at all. 
 
 This wretched Report has really made legislation more 
 hopeless than ever — like the Revised Version. But the 
 only thing that is needed to make the Public Worship Act 
 work, under which proceedings are simpler than under 
 the old ones, is the removal of the condemned episcopal 
 veto on " the indefeasible right of every man to approach 
 the Crown" and its Courts " for a full investigation of his 
 cause," and of the insane allowance of three years for a 
 convicted defendant to say whether he means to obey. All 
 that may be done by an Act of a single clause like this : — 
 
 * Stola ah utroque humero pendula, et ad talos demissa, Bishop 
 G-rindal said, which incidentally proves the orthodoxy of long surplices 
 instead of the fashionable Popish white spencers usque ad genua, or 
 less. Coloured or decorated stoles are directly contrary to the Canon, 
 and have been pronounced illegal.
 
 46 The only Legislation necessary. 
 
 f< Be it enacted that the consent of a bishop shall not be 
 requisite for the institution of any ecclesiastical suit ; but 
 the Court may dismiss the same with all or any of the costs 
 incurred by the defendant if it thinks the suit frivolous, or 
 unnecessary, or vexatious, even though the complainant 
 may be technically right. And the word years, where it 
 first occurs in the 13th section of the Public Worship Regu- 
 tion Act 1874, shall be read as weeks;" which the Lord 
 Chancellor said was long enough. Also, that stupid piece 
 of timidity in the Purchas judgment, which caused all the 
 subsequent rebellion, ought to be cured by enacting that 
 disobedience to any sentence shall be at once punished by 
 deprivation without a new suit. 
 
 I do not mean that it would not be desirable to do 
 more; in fact, all that is in my Bill, except the veto. 
 But the Samsons of this Commission have pulled the legis- 
 lative house down while flattering themselves they were 
 "restoring" it for Convocation. And the experience of all 
 modern ecclesiastical legislating and commissioning is by no 
 means encouraging. They mention the Dilapidations Act 
 1871, which has been absolutely condemned by a Committee 
 of the House of Commons, and ought to be called An Act 
 for the benefit of diocesan surveyors, some of whom contrived 
 it. It was an utterly unnecessary and mischievous piece 
 of meddling. I suspect that the Act of Elizabeth about 
 dilapidations was overlooked. The Incumbents* Resigna- 
 tion Act is doing enormous injustice now, in consequence of 
 giving the resigners fixed sums instead of a fixed proportion 
 of the net income received, besides other defects. The 
 Commission professes to want some more legislation to 
 make the practice in different dioceses about faculties 
 "uniform." They have evidently no idea whether they 
 mean it to be " the Use of Sarum " or " the Use of York," 
 or some new invention, probably worse than any that 
 exists ; or that uniformity in badness would make all the 
 better ones worse ; or what good uniformity alone would do. 
 Nor do I see a bit of evidence against any practice, except 
 that the cost of faculties still remains in some dioceses much
 
 The Cathedral Commission. Ail 
 
 higher than in ours; but it is often increased by not 
 applying directly to the Registrars. 
 
 Another of these variegated Commissions is threatening 
 us with a lot of new Cathedral Statutes, of which all that 
 they have issued yet leave the most notorious difficulties 
 unsolved, and rather perpetuated, and some are full of the 
 most trifling ceremonial details. And no wonder, when the 
 very Visitors of every cathedral are excluded from the Com- 
 mission, except the one who now represents them all, and 
 actually not the Primate of one province; and now that 
 Archbishop Tait is gone, of neither. I am glad not to see 
 his name to any of the published Statutes. Perhaps your 
 absence is sufficiently made up for by the presence of — which 
 of the lay amateurs shall I say ? I had better say, Sir 
 W. C. James, because his aid was thought essential to the 
 success of both Commissions. Perhaps future historians, 
 who may know that there was a great Judge called Sir 
 W. M. James in these days, will speculate whether the 
 name of the Reformer of the Cathedrals and the Church of 
 England was misprinted in these two Commissions. 
 
 But I must not imitate the Commission on Ecclesiastical 
 Courts by wandering outside of my commission and your 
 question; so I remain 
 
 Your faithful Chancellor and Vicar- General, 
 
 EDMUND BECKETT. 
 
 33, Queen Anne Steeet, W. 
 
 November 1883 : Revised, February 1884. 
 
 [I] am requested to reprint here the following separate 
 Reports alluded to in the preceding pages.]
 
 APPENDIX. 
 
 The Report of the Royal Commission was signed with the 
 following Reservations, among others : — 
 
 In signing the Report I am compelled to record my dissent 
 from it in two important particulars. 
 
 1. In allowing anyone to lodge a complaint, the Report makes 
 the hearing of the complaint depend absolutely upon the 
 permission of the Bishop. Except with this permission the 
 Courts will be closed entirely to a layman, who will have no 
 right of appeal from this absolute decision, however great the 
 wrong which he may conceive himself to have sustained. 
 
 2. Great evils have resulted from litigation in the past. To 
 prevent the evils for the future, something should be done to 
 afford a means of direction and arbitration without resort to the 
 Courts. One such means is supplied by the Prayer Book, in the 
 reference to the authority of the Bishop when doubts or divers 
 interpretations prevail. But unless the decisions of the Bishop 
 are held to be binding, until they are appealed against, they are 
 of no avail. Let the Bishop have power to make an order in 
 all matters affecting the conduct of public worship, which shall 
 be binding until reversed by the Court of Appeal. Let there 
 be an appeal to the Archbishop's Court either from such an 
 order, or from a trial in the Diocesan Court. Once make the 
 Bishop's authority a reality, and not an utterance of which no 
 Court will take notice, and he would be able to compose many 
 of the disputes which now arise about such subjects without 
 prolonged litigation. W. Ebor. 
 
 We concur in these reservations. 
 
 J. J. Stewart Perowne. F. H. Jeune. 
 
 Lord Chichester, Dr. Deane and Canon Espin also concurred 
 in the first. 
 
 I desire to express my concurrence in the second of these 
 reservations, having written separately as to the first. 
 
 Coleridge, c.j. 
 
 I am unable to concur in the recommendation made by my 
 brother Commissioners that the Bishop's assent should be made 
 a condition precedent to the taking of proceedings to enforce 
 the law, whether moral or ritual, against a clergyman. 
 
 I believe that practically this is a power claimed and exercised 
 by Bishops for the first time since the Church Discipline Act. 
 I do not question the great power of a Bishop in the Middle 
 Ages ; or that in practice he could probably have prevented any 
 proceedings against a clergyman in the Church Courts which
 
 Separate Reports of Some of the Commissioners. 49 
 
 lie chose to prevent. But since the Reformation, though the 
 fiction of permission was kept up by the forms of the Court, 
 yet it was a fiction only, and the practice was as declared by the 
 highest authority, Lord Stowell, for the assent to be given as a 
 matter of course if the Bishop were made safe as to costs. I 
 am very clearly of opinion that this ought to be so, and that the 
 active interference of the Bishops to prevent the law of the 
 land being enforced against those who have deliberately broken 
 it is as indefensible in theory as, I must confess, it seems to me 
 to be fast becoming intolerable in practice. 
 
 The right as now claimed and exercised covers everything, 
 moral delinquency of the gravest kind, doctrinal error the most 
 extreme, ritual excess, whereby in spite and defiance of the law 
 a repugnant congregation may be compelled to assist at a cere- 
 monial which they think symbolizes an abject and mischievous 
 superstition. It is obviously no answer in reasoning to say that 
 the right claimed would never be so abused. But besides, this 
 is a right clearly capable of being abused, more likely to be 
 abused in proportion to the strength and earnestness of character 
 of those who claim it; finally, one which, desiring to speak 
 with true respect, I must think in fact has been abused. 
 
 The English people have, in my opinion, a right to see that 
 the condition upon which they have granted or secured great 
 privileges to the maintainers of a particular set of religious 
 opinions are carefully observed, a right which ought not to be 
 limited by the will of a few distinguished men amongst those 
 to whom these very privileges have been granted or secured on 
 these very conditions. 
 
 It is true that as the Bishops may abuse their right of inter- 
 ference, so the people at large may abuse their right of prose- 
 cution. But I think that competent judges with absolute power 
 over costs would very soon restrain, and indeed altogether put 
 an end to merely frivolous litigation. 
 
 There are some other points on which the Report does not 
 represent my individual opinion, but they are none of them, 
 except the one as to which I have ventured to express myself 
 above, serious enough to justify me in withholding my signature 
 from a Report, the recommendations of which, on the whole, I 
 regard as very valuable, and as likely, if adopted, to bring about 
 a very beneficial change. 
 
 Coleridge, c.j. 
 
 REPORT OF LORD PENZANCE. 
 
 Having been prevented by ill-health from attending a great 
 number of the meetings of Your Majesty's Commissioners, and 
 taking part in their discussions in connection with the volu-
 
 50 Report of Lord Penzance 
 
 minous evidence which they have received, I do not feel com- 
 petent to give a general assent to their Report, although there 
 are some parts of it with which I entirely agree. 
 
 I shall best, I think, discharge the duty imposed upon me 
 under Your Majesty's Commission by embodying some con- 
 clusions at which I have arrived in the form of a separate 
 Report. 
 
 There are some matters of law and constitutional history to 
 which I think a closer attention should be drawn than appears 
 to have been thought necessary. 
 
 Two main propositions have been put forward by those who 
 find fault with the constitution of the existing Courts V — 
 
 1 . That the Ecclesiastical Courts of this country, as a matter 
 of constitutional history, are Courts which derive their authority 
 and jurisdiction from the Church, independent of the Sovereign 
 or the State, and as a corollary from this, that the Legislature 
 is exceeding the proper limits of its authority if it interferes 
 with, or attempts to regulate them, without the consent of the 
 Church, thereby meaning the clergy in Convocation assembled. 
 
 2. That the judges who administer the ecclesiastical law 
 ought, according to the ancient and true constitution of these 
 Courts, to be either ecclesiastics or persons upon whom a quasi- 
 spiritual character has been impressed by the Bishops or Arch- 
 bishops whom they represent. 
 
 These objections have not been dealt with directly by aflirma- 
 tion or denial in the Report, but as some of the statements and 
 recommendations to be found in the Report appear to me to give 
 a tacit adhesion to them, at least, in some degree, I will state 
 very shortly why it is that in my opinion they cannot be 
 maintained. 
 
 Until the Conquest, whatever ecclesiastical jurisdiction was 
 exercised in this country through the medium of a constituted 
 Court, as distinct from the personal power and control of the 
 Bishops, was exercised in what were the temporal Courts of the 
 country, the Bishop sitting there by the side of the temporal 
 judges. This is stated to be the case by, I believe, all historians 
 of repute, including both Lingard and Collier. The existing 
 Ecclesiastical Courts first existed, and were erected and created, 
 by and under a charter of William the Conqueror. Whether 
 this charter emanated from the Sovereign in Council, or whether 
 it partook of the nature of what was afterwards known as a 
 charter in Parliament, it is needless for my present purpose to 
 inquire. The charter professes, on the face of it, to be made 
 "communi consilio " of the Archbishops, Bishops, and Abbots, 
 " et omnium principum regni mei." The date of this charter 
 is, I believe, unknown, but its terms are still extant. " Mando 
 et Regia auctoritate praecipio ut nullus episcopus vel archidia- 
 conus de legibus episcopalibus amplius in hundretto placita 
 teneant nee causam quae ad regimen animarum pertinet ad 
 judicium secularium hominum adducant sed quicunque secundum
 
 under the Boyal Commission. 51 
 
 episcopales leges de quacunque causa, vel culpa interpellatus 
 f uerit ad locum quem ad hoc episcopus elegerit et nominaverit 
 veniat, ibique de causa sua respondeat, et non secundum 
 hundrettum sed secundum canones et episcopales leges rectum 
 Deo et episcopo suo faciat." 
 
 Having thus provided for the holding of separate courts for 
 the administration of the "episcopales leges" at places to be 
 nominated by the Bishops, the Conqueror went on to give effect 
 and coercive jurisdiction to these Courts over his subjects to the 
 following language : — 
 
 " Si vero aliquis per superbiam elatus ad justitiam episcopalem 
 venire non voluerit vocetur semel et secundo et tertio ; quod si 
 nee sic ad emendationem venerit excommunicetur et si opus 
 fuerit ad hoc vindicandum fortitudo et justitia regis vel vice- 
 comitis adhibeatur" 
 
 It was under this authority, and from this time, that the 
 Bishops first " nominated," as they were ordered to do, the 
 fixed places where they would hold their Courts, and the Arch- 
 bishop of Canterbury fixed upon the Church of St. Mary-le-Bow, 
 where the Court of Arches first sat. 
 
 "Before this reformation of justice (says Collier, vol. ii, 
 p. 44), as the charter calls it, the Bishop used to sit with the 
 sheriff in the County Court, and with the hundredary in the 
 Hundred Court, if he pleased, where ecclesiastical and civil 
 causes were tried by their joint authorities, but from this con- 
 stitution of King William's the separation of both jurisdiction 
 bears date." 
 
 It was the King, therefore, who created, as he says in his 
 charter, "regia auctoritate," a separate set of tribunals for the 
 treatment of questions of ecclesiastical law, and the practical 
 exercise of purely spiritual jurisdiction. It was the Sovereign, 
 and not the Church, who authorized the holding of these separate 
 Courts for the administration of ecclesiastical law, which have 
 come down, with many alterations no doubt, but without losing 
 their identity, to modern times, and are the Ecclesiastical Courts 
 of the present day. 
 
 To go no further than this, therefore, it appears to me that 
 what the Sovereign of his own supreme authority, with the 
 advice of his Council or Parliament, set up and created, the 
 Sovereign, with the advice of Parliament, may well alter and 
 amend. But as a matter of fact and of history, the Sovereign, 
 by the advice of Parliament, has never hesitated to do so when 
 thought desirable, and every alteration which has been made in 
 the jurisdiction, the practice, or the constitution of these original 
 Ecclesiastical Courts as they first existed under the Conqueror's 
 charter, have been made by the authority of the Sovereign in 
 Parliament, and by that authority alone. The Bill of Citations, 
 as it was called, which is the Statute 23 Hen. VIII, c. 9, did 
 very largely interfere with, and restrict, the action and juris- 
 diction of the Ecclesiastical Court of the Province, when it
 
 52 Beport of Lord Penzance 
 
 provided that the Archbishop's Court should no longer entertain 
 original suits for breach of ecclesiastical law within the province 
 except at the request of the Bishop of the diocese. Before this 
 statute was passed the King's subjects used to be cited from all 
 parts of the province to appear at the Archbishop's Court in 
 London ; and the grievous expense and vexation thereby caused 
 gave rise to the statute, but a graver or more distinct interference 
 with the Archbishop's original jurisdiction could hardly be 
 conceived. 
 
 It is needless to call attention in detail to the numerous 
 statutes passed since then, modifying, changing, restricting, and 
 amending the jurisdiction of the Ecclesiastical Courts, some 
 carrying away from ecclesiastical cognizance entire classes 
 of causes, such as the testamentary and matrimonial causes, 
 others restricting ecclesiastical censures in their application to 
 the laity, such as that which transferred the offence of brawling 
 in church from the category of ecclesiastical to that of civil 
 offences, and that which put an end to proceedings for defa- 
 mation ; and others again dealing with the practice and procedure 
 of these Courts, such as the Church Discipline Act, the Act 
 under which evidence is now taken viva voce in open court, the 
 Acts for the imprisonment of contumacious persons and, lastly, 
 the Public Worship Regulation Act. 
 
 It is not of course intended by these statements to be suggested 
 that the Conqueror set up or created for the first time the exercise 
 of spiritual censure in this country. For there is no doubt that 
 before the Conquest the Bishops did exercise authority and control 
 here, as elsewhere in Christendom, over both clergy and laity ; 
 but that authority was, as is stated in the Report, p. 17, "a 
 judicial authority inherent in the person of the Bishop rather 
 than in the Court, and might be exercised in synod, in visitation, 
 in camera, or in itinere." The extent, however, to which this 
 spiritual control was exercised by the Bishops before the 
 Conquest, and the manner of its exercise, are not (so far as I am 
 aware) susceptible at the present day of any very exact or cogent 
 proof. But the erection of constituted Courts with a coercive 
 jurisdiction, to be enforced if need be by the civil power, over 
 the King's subjects, was a different matter. It could only be 
 done, as the Charter said it was done, " Regia auctoritate," with 
 the advice of his Parliament, by and under which authority, says 
 Lord Coke, alone all Courts of Justice have had their existence 
 in this country, 4 Inst. 200. 
 
 The older law books are not silent upon this subject. I will 
 only refer to the following passages from the digest of Chief 
 Baron Comyn, tit. Prerogative D 9. " All ecclesiastical juris- 
 diction began originally by the grant of William I, or rather by 
 Parliament, before ecclesiastical causes were determined in the 
 Hundred," 2 Rol. p. 216, 1. 20. And again, " The jurisdic- 
 tion of the Bishops, &c, began by the King's grant," 2 Rus. 1343. 
 And again, " The ecclesiastical laws, though derived from others,
 
 under the Royal Commission. 53 
 
 yet being approved and allowed here by general consent, are the 
 King's Ecclesiastical Laws," 5 Co. 9 a, Dav. 70 b. 
 
 I come therefore to the conclusion that there is no warrant to 
 be found in the legal or constitutional history of this country for 
 the proposition that there have existed at any time since the 
 Conquest, or indeed before it, Spiritual Courts deriving their 
 original authority from the Church independent of the Sovereign 
 or the State, and that the authority for the jurisdiction of the 
 existing Ecclesiastical Courts did, on the contrary, emanate 
 directly from the Crown. I do not offer any opinion whether 
 it would or would not be an improvement if the Spiritual Courts 
 had a more independent existence. I desire only to place on 
 record their actual constitution and origin. 
 
 I now pass to the suggestion that the judges of the Ecclesias- 
 tical Court ought to be ecclesiastics. 
 
 I will presently consider this suggestion in the character of a 
 proposed change from the existing state of things. But if it is 
 intended, as I rather think it is, by those who urge it, to assert 
 that the administration of the ecclesiastical law in the Spiritual 
 Courts by laymen is in any degree a modern innovation, I must 
 record my dissent from such an assertion. The practice of 
 delegating the authority of the Archbishops and Bishops to 
 laymen learned in the law, under the name of officials or chan- 
 cellors, is many centuries old, and has been continued almost 
 without intermission down to the present day. I have nothing 
 to add to the statement on this matter to be found in the Report 
 at page 19. It is beyond doubt, however, that the notion that 
 ecclesiastics ought to preside in the Spiritual Courts is not 
 a new one. In Bishop Gibson's " Codex," at p. 984, will be 
 found a reference to the institution of Archbishop Chichely, 
 temp. Hen. V, by which it was provided that no lyman 
 should exercise ecclesiastical jurisdiction. The same thing was 
 enjoined by some portion of the canon law, but whether it was 
 received and acted upon in this country before the Reformation 
 to any, and if so, to what extent, it is not easy to say. The 
 matter, however, was finally set at rest by the statute of 37 
 Hen. VIII, c. 17, which declared this restriction to be one of the 
 abuses of Papal power, and expressly provided and declared that 
 laymen might lawfully exercise all manner of ecclesiastical 
 jurisdictions, and " all censures and coercions appertaining 
 to the same." This statute has never been repealed, and has 
 been followed by an almost unbroken practice (I speak of the 
 Archbishops' officials) of appointing lawyers to these judicial 
 offices. 
 
 But the question remains whether it is desirable that this 
 practice should continue ; and a prominent suggestion made in 
 the Report is that it should not, so far at least as the Diocesan 
 Court is concerned, where the Bishop himself, it is recommended, 
 ought to preside. I cannot agree in this recommendation. I will 
 presently state in what way it seems to me that the personal
 
 54 Report of Lord Penzance 
 
 authority of the Bishop in the control of his clergy, which dates 
 from the earliest periods of ecclesiastical history, would be best 
 revived and exerted at the present day. To effect this object 
 by providing that he should preside in the Diocesan Court is, 
 I think, objectionable for the following reason. The admini- 
 stration of law, whether civil or ecclesiastical, by a Court, implies 
 the application to individual cases of strict and constant rules, 
 adhered to continuously, not only in the Court itself, but uniformly 
 by all Courts of similar jurisdiction throughout the realm. It is 
 thus and thus only that a consistent body of legal decision and 
 settled interpretation of the written rules, regulations, and other 
 written documents in which the law is embodied is gradually 
 built up, accumulated, and maintained, and it is thus and thus 
 only that men come to know what is forbidden and what allowed 
 to them by the law, and are able to guide their conduct accord- 
 ingly. Speaking generally, where discretion begins the proper 
 administration of the law as such comes to an end. 
 
 For the administration of strict law in this sense I do not 
 think that an ecclesiastic is, by his training and acquirements, 
 well qualified. It is, I think, to be apprehended that a Bishop 
 would not be careful to follow decided cases, with which, 
 perhaps, he would be little familiar ; that he would be apt to 
 import into his enunciation of the law considerations of policy 
 and the elasticity of discretion, while in controversial matters 
 of doctrine there would be room for the apprehension that he 
 might bring to judicial decision opinions already formed, and 
 perhaps strongly held, on one side or the other of the controversy. 
 The probable result would be a startling divergence of decision 
 in the different dioceses, which, by rendering the law uncertain, 
 would bring it into discredit and impair its efficacy. 
 
 But while holding these views as to the Bishop presiding in 
 the Diocesan Court, I am strongly of opinion that, historically 
 and constitutionally, the primary authority for the correction of 
 excesses in the clergy resides personally in the Bishop, and that 
 the exercise of that authority, which was vigorously asserted in 
 times past by the Bishops in their visitations, ought to be 
 restored to them. 
 
 It is well known that as visitor of his diocese, the Bishop 
 used to enforce obedience upon his clergy by suspension and even 
 deprivation, though the right to proceed to deprivation without 
 a regular suit, and the exhibition of written articles, has been 
 questioned. As visitors, the Bishops acted without set forms or 
 the cumbrous formalities of regular suits. The old legal defi- 
 nition of a visitor's mode of proceeding was as follows : — 
 " Summarie, simpliciter et de piano, sine strepitu aut figura 
 judicii." 
 
 It is this personal power and jurisdiction of the Bishop's (with 
 any safeguards that might be thought necessary) which I would 
 revive. Let. all complaints of the conduct of the clergy in 
 respect of ritual or doctrine be made to them ; let them have
 
 under the 'Royal Commission. 55 
 
 power to take evidence on oath, and institute what inquiries 
 they think right and in the way they think right ; then let them 
 issue any admonition they think fit to the offender, and if he 
 does not obey, let them pass a sentence of suspension. An 
 appeal from any such sentence might lie to the Provincial Court, 
 and, on the other hand, if the Bishop refuse to act, or fails to act 
 with effect, the complainant should be allowed to promote the 
 office of judge against the offender in the Provincial Court, the 
 leave of the judge having been first obtained, whose duty it 
 should be to refuse it if he found the complaint to be frivolous, 
 trivial, vexatious, or urged without sincerity. From the Pro* 
 vinoial Court an appeal should lie in all cases to the ultimate 
 Court of Appeal. 
 
 If it be allowed that the laity have any rights in the due and 
 proper administration of the services and ceremonials of the 
 Church, it seems to me to follow that, if the Bishop is unable or 
 unwilling to maintain those rights, any parishioner who is 
 aggrieved by a breach of the law in this respect, ought to be 
 permitted to assert them in the Spiritual Courts, provided always 
 that his complaints, or supposed grievances, are not trivial, or 
 frivolous, or vexatious, and are honestly put forward. 
 
 In support of these views I venture to refer to the following 
 passage from the First Report of the Commissioners, dated the 
 19th of August, 1867, under the Commission issued by Your 
 Majesty in the month of June of that year, in reference to the 
 conduct of public worship : " We are of opinion that it is expe- 
 dient to restrain, in the public services of the United Church of 
 England and Ireland, all variations, in respect of vesture, from 
 that which has long been the established usage of the said United 
 Church, and we think this may be best secured by providing 
 aggrieved parishioners with an easy and effectual process for 
 complaint and redress." This Report was signed by the whole 
 twenty Commissioners, of whom several were Archbishops and 
 Bishops and the rest distinguished lawyers and laymen most 
 conversant with the subject, and presents a strong body of 
 opinion in favour of the proposition, that (in the last resort, at 
 least) means should be secured to the laity of enforcing the law 
 in respect of vestments, and by parity of reasoning in respect of 
 other departures from the Ceremonial Rubrics. 
 
 In making the above suggestions for the intervention of the 
 Bishops before a resort to the Courts of law, I regard the position 
 of the Bishops in these matters rather as that of superior officers 
 entitled to control and direct the clergy by their commands than 
 as merely judges correcting them by censures of law. It is a 
 strong confirmation of this view of their position that mere dis- 
 obedience to the Ordinary, without more, is a distinct ecclesiastical 
 offence, warranting ecclesiastical censure in the Ecclesiastical 
 Courts, while "incorrigible disobedince to the Ordinary" is 
 declared, over and over again in the law books, to be properly 
 punished by deprivation. It is also to be borne in mind that
 
 56 Separate Beport of Lord Penzance. 
 
 every ordained priest has at his ordination taken a solemn 
 oath to obey his Bishop. Great good would, I think, ensne from 
 thus conferring on the Bishops a large personal jurisdiction 
 and discretion in composing disputes, restraining excesses, and 
 settling the differences between a clergyman and his parishioners 
 without an appeal to the law, which should only be invoked 
 where the Bishop has failed. In a word, I would only appeal to 
 the law and the Courts of law in the last resort. If an appeal 
 to a Court of law could be avoided, it would be no longer neces- 
 sary to send solicitors' clerks to attend Divine service in order 
 to obtain definite and legal evidence of the way in which the 
 service is conducted. 
 
 Court of Appeal. — I will only remark upon the recommenda- 
 tion in this part of the Report, that in future " The actual decree 
 should be alone of binding authority, the reasoning of the written 
 or oral judgments should always be allowed to be reconsidered 
 and disputed." 
 
 If this only means that what are known among lawyers as 
 obiter dicta are not to be held binding on future cases, I have 
 nothing to say to it ; these judicial utterances never, so far as 
 I am aware, have been treated as anything but the expressed 
 opinion of the individual judge upon points or matters not 
 directly in question, and which did not arise for judgment in the 
 particular case. But the language of the recommendation goes 
 much further. It appears to me to propose that in future, in 
 place of asking upon what principle was this or that case decided, 
 the only question should be — did the Court decide (in reference 
 to the ascertained facts) for the promoter, or for the defendant, 
 for that is all which the actual decree will show. Such a system, 
 if adopted, would result in this, that no case would become a 
 precedent for the decision of cases arising after it, except those 
 in which every circumstance was identical. No legal principle 
 would be asserted or established, no general interpretation of the 
 terms and directions involved in the Rubrics of the Prayer Book, 
 or of the language in which the doctrine or the ceremonial of 
 the Church has been expressed by lawful authority, could be 
 arrived at or ascertained. Every fresh point, though in reality 
 falling under a general category with which the Court had pre- 
 viously dealt, would become necessarily the subject of a fresh 
 suit to settle it, and until it was brought to adjudication, no man 
 would be able to tell what the law might be held to be. In a 
 word, such a system, if acted upon for half a century, would 
 destroy the ascertained law altogether ; and had it been main- 
 tained. in the temporal Courts from early times, it is not too much 
 to say that what is known as the common law of the land could 
 have had no existence. 
 
 All which matters I beg humbly to report and submit to Your 
 Majesty. Penzance. 
 
 G. NORMAN AND SON, PRINTERS, HART STREET, COVENT GARDEN, LONDON.
 
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