LI E) RAI^Y 
 
 OF THE 
 
 U N IVLRSITY 
 
 Of ILLINOIS
 
 
 LETTER 
 
 TO THB 
 
 - BIGHT HON. MOUNTAGUE BERNARD, 
 
 ^ D.C.L,, OF H.ar. PRIVY COUNCIL. 
 
 ' BT 
 
 W. F. HOBSON, B.A., 
 
 AUTHOR or "Sacerdotalism," "Vestments and Law," 
 "Church Innovations," &c. 
 
 PUBLISHED BY REQUEST. 
 WITH A REPRINT OF A 
 
 LETTER TO THE LORD BISHOP OF LINCOLN, 
 
 LONDON: 
 BASIL MONTAGU PICKERING, PICCADILLY,
 
 TO THE 
 
 RIGHT HON. MOUNTAGUE BERNARD. 
 
 Sir, — A letter appeared recently in the Guardian, 
 written by you to a friend privately, and the weight 
 of your name will secure attention to the views on 
 the P.W.R.A. therein set forth, and it is not on light 
 grounds that anyone should question these. I doubt 
 whether a private letttr should be so questioned in 
 public, and will therefore, if you permit me, consider it 
 in thus addressing you personally. 
 
 1. You state that under the Act Lord Penzance was 
 appointed a Judge of the provincial Courts, " which are 
 ecclesiastical Courts :" What exact force you attach to 
 the indefinite article does not appear ; but, after the 
 first mention of a Judge, the Act, and also the rules 
 of procedure, speak of the Judge,* 
 
 2. The provincial Courts doubtless remain as ecclesias- 
 tical Courts, for certain purposes ; but for the purposes of 
 the Act is not each Court functa oj^cio, eince their 
 essential character is ceased ? Each provincial was 
 (1) an Archbishop's proper Court, and (2) a Court of 
 Appeal. The P.W.R.A. created a Jurisdiction, cover- 
 ing that of both the provincial Courts, and the Judge 
 was also created co-ordinate to the jurisdiction. Except 
 in name there is now under the Act no proper Arch- 
 bi^hop's Court nor Court of Appeal, for the Judge is a 
 judge of First Instance. 
 
 * The formal appointment by the Archbishops, accordiug 
 to the Court of Arches' return obtained by Lord Limerick, 
 made Lord Penzance 'Uhe Judge of the provincial Courts 
 of Canterbury and York for the purposes of the said Act." — 
 April 5th, 1877.
 
 3. Every Jurisdictioa has its essential charaeteristio 
 determined, I suppose, by its origin, and by that which 
 it represents. The Church of England (legally "the Sacred 
 Synod of this Nation ") had no share in the creation of 
 the new Jurisdiction, nor is proper Church power repre- 
 sented by it, and therefore the Court of the Judge cannot 
 be an ecclesiastical Court proper. 
 
 4. What made any Court to be ecclesiastical ? Was 
 it not (1) its origin, and representative function, (2) its 
 canon of judgments, (3) its modes of procedure, (4) its 
 Judge being a person (lay or clerical) learned in the 
 ecclesiastical Laws ?*= All these tests (excepting, per- 
 haps, the second) fail in the Court sitting at Lambeth 
 tinder Lord Penzance. Is it possible to change all these 
 and retain for the Court a proper ecclesiastical character ? 
 No ; there i?, in a constitutional view, and in substance^ 
 a new Court and a new Judge, not an archiepiscopal Court 
 or Judge, but a national Crown Court and Judge. 
 
 5. That both provincial Courts are superseded, in Law, 
 seems plain from the language of the P.W.R.A., which 
 provides that, under it, proceedings are to be deemed and 
 taken to be in either Court-provincial, according to the 
 venue. The technical force of the words " deemed and 
 taken " so used is, I believe, to describe a legal fiction 
 and no more. The proceedings are not actually taken in 
 either Court of Appeal, but in a Court which, virtually 
 and legally, supersedes both and the Bishops' Courts also. 
 The Law will of course sustain its own words, and so much 
 only I suppose you mean by saying that proceedings 
 before Lord Penzance's Court are iii Law taken in the 
 provincial Courts ; but, however unquestionable may be 
 
 * The Act requires no qualification in the Judge except 
 that ho shall be "a Barrister of ten years' standing or a 
 Judge of one of the superior Courts of Law or Equity ;" as 
 if to stamp the uneccledasiical character of the Judge, no 
 Doctor of Civil or Canon Law is sought— only a State Judge, , 
 
 uiucj
 
 the Law, it may yet be the meana of irjary and an 
 iDfringement of constitutional principles. If my consti- 
 tutional right as a clergyman to be tried by my Bishop, a 
 spiritual person, in spiritual things be taken away, and 
 also my ria:ht of appeal to my Archbishop in his proper 
 Court, it will be no satisfaction to learn that by a legal 
 fiction I am still tried as of old. 
 
 6. You, Sir, affirm that Lord Penzance is an ecclesias" 
 tical Judge. I apprehend that the Judge is correlative to 
 the Jurisdiction, and that if the one be — as without question 
 it is — a civil and not an ecclesiastical creation, then the 
 Judge must have the very same character. You allow 
 that the Judge lacks the constitutional letters patent of 
 the Archbishop, the form of conveying authority and 
 jurisdiction to the ancient provincial Judges. Nor was 
 he appointed by either Archbishop alone, as of old their 
 Judge was, but by the two acting conjointly. Nor, 
 moreover, did they thus appoint him originately, but solely 
 under the authority of the Act— iha.t is, the two Arch- 
 bishops acted only ministerially. They together reprc 
 iented the civil poxcer in this Act. They could not, sepa- 
 rately or together, convey the jurisdiction created by the 
 Act by their own proper powers, for the jurisdiction was 
 new, and not ancient, and as the jurisdiction so is the 
 Judge. The two Archbishops, then, legally — for I am 
 speaking of the legal question now only — acted in 
 appointing the Judge only as the conditional patrons of 
 the office created by the Act and no farther.* On his 
 
 * Thanks to Lord Limerick, the actual instrument of 
 Appointment is now made public. From this it is clear 
 that the Archbishops acted baldly as State officers only 
 under the Act, with the new power it gave to them (which, 
 the Lord Chancellor or any other person might as well have 
 been empowered to exercise), and by a new civil form of 
 Appointment. There is in tbis form no reference to or 
 claim of their inherent ecclesiastical powers ; these are 
 not called into operation at all. So strong is the evidence 
 now of the ecclesiastical defect of the appointment of
 
 appointment the Judge no more in the ancient way 
 represented the Archbishops, a? such, than does a clergy- 
 man represent the patron of his benefice, who may be 
 Lord Chancellor or Lord Bishop. How far the con- 
 joint and voluntary action of the two Archbishops 
 might give a 5i<asi-ecclesia8tical character to the Judge, 
 I am not prepared to say, but, acting as aforesaid, they 
 could not, they were not empowered to, convey any 
 ancient ecclesiastical office — they might only give what 
 the Act created, and entrusted to their conditional nomi- 
 nation, a new Judgeship. 
 
 7. This view of the Judgeship becomes clearer when 
 regarded in connection with the real ancient office of 
 Ecclesiastical Judge, the " Dean of Arches " and the 
 •'OflScial Principal," which the Act conferred in futuro 
 upon the new Judge. These several appointments the 
 Act tooJc unto the civil potver as a legal possession aa 
 absolutely as if they were, like the new Judgeship, its 
 own creation. They were then not voided, and they 
 were made, ultimately, ciril appointments of the Crown; 
 for, failing the Archbishops' appointment, the Crown 
 appoints. Before the Judge sncceeded to these he acted 
 solely under the authority of the Act, and by process 
 originated by that, and, when he received the oiaine of 
 Dean, &c., he still was the creature of the Act, and his 
 process as lefore — not the old process of the Dean, &c. 
 Does not this prove that he is not the ancient officer 1 
 or (1) the source of his authority is changed, (2) his 
 
 liord Penzance that the Eight Hon. J. G. Hubbard, who 
 till recently held that there was no difference between the 
 new Court and office and the ancient Court of Arches, has, 
 with prompt candour and honourable boldness, admitted, 
 "on the evidence of the Court of Arches' Return," in a 
 published letter {Guardian, 4th April, 1877) that those 
 Courts " differ widely," and that the new Judge's " Judg- 
 ments, void apparently of any spiritual authority, must 
 with that defect be necessarily invalid."
 
 personal qualification is changed, and (3) his mode of 
 procedure is changed, if not his canon of judgment 
 also. Even as Dean, &c., his Court must proceed as the 
 Act provides. If these changes do not substatially and 
 constitutionally subvert the ancient offices of the Dean, 
 &c., it seems hard to imagine what more was needed to 
 that end. Nothing was lacking except the direct 
 abrogation of both name and character. The new 
 Dean is surely not the ancient Dean, and so the strong 
 assertion of the Judge's ecclesiastical character, grounded 
 upon his succession to the office of Dean, &c., seems 
 to be in reality a mere blind, a legal fiction, a sop which 
 the Church ought not to receive, a bit of legal or Court 
 plaister that may not heal the mortal wound of the 
 civil sword — " a rose by any name would smell as sweet," 
 but a nettle is not turned into a rose by calling it one. 
 
 May I offer an imaginary analogy ? Suppose an Act 
 of Parliament empowered Archbishops and Bishops to 
 appoint any one to exercise the functions, without 
 having the qualifications, of a Eector or Vicar (while 
 the Incumbent lived) without the old ecclesiastical and 
 legal forms, and gave to the Vicar or Rector so appointed 
 the right of succession to the office of Rural Dean, how 
 could the purely secular character of these new officers 
 (Vicar, Rector, and Dean) be denied or their ecclesiastical 
 authority sustained ? 
 
 8. You have named the Church Discipline Act as having 
 become a Court of First Instance, in order to obviate the 
 objection that the P.W.R.A. has changed the essential 
 character of the Provincial Courts as Courts of Appeal. 
 I might reply that two wrongs do not make a right. 
 But is the case really analogous ? I think not. The 
 Church Discipline Act, as first proposed, was most strongly 
 objected to by the Bishop of Exeter and others, on the 
 ground of its being against the constitutional rights of
 
 the Church and Clergy, but to the Act aa now fa force 
 that acute and legal-minded Bishop gave his cordial assent, 
 and the reason of this final acceptance of the Bill is to be 
 found in its difference from the P.W.R.A. ! It created 
 no new lay Judge. It abrogated no ancient Jurisdiction. 
 It left the Archbishops' Courts unchanged as Courts of 
 Appeal, and the Bishops' Courts are not superseded. 
 Cases " may " be sent hy Letters of Request to the Court of 
 Arches, &c., and thus this Act preserved the old con- 
 stitutional lines for Ecclesiastical Judgments. In two 
 points chiefly it introduced alterations — (1) by empowering 
 the Bishops, on consent of parties, to adjudicate personally 
 without the intervention of their Courts, and giving legal 
 effect to their decisions ; and (2) by creating a Court of 
 Commission of clergymen to decide whether there were 
 prima facie grounds for further proceedings or not. Now 
 here it is clear that the intention of the Act was to 
 sustain the authority of the Church and her officers, the 
 Bishops, and not to evacuate it, and to respect the 
 conscience and rights of the Clery to spiritual Judgments. 
 If there was irregularity in the doing of these things 
 Bolely by Act of Parliament, yet there is no appearance of 
 hostility to the Church or contempt of the constitutional 
 rights of the Clergy. On the contrary, the P.W.R.A. 
 evacuates, for the purposes of the Act, all jurisdictions save 
 its oion creation. Its provisions are compulsory and 
 absolute. The Bishops have no choice or power, but — at 
 the mere will of three complainants— to send cases out of 
 their dioceses to a new Jurisdiction and to a lay Judge, 
 called indeed Dean of Arches, &c., but being sub- 
 Btantially another officer, who, by a wonderful legal 
 fiction, hears with one ear at York and with the other in 
 Arcubus or at Doctors' Commons, but judges with his 
 brain as Parliametary Judge at Lambeth. 
 
 9. You seem to argue, Sir, that, as the Judge is 
 appointed by the Law and the ecclesiastical Law is a part
 
 of the Law of England, so the Judge is an eccUsiasticoU 
 Judge, being empowered to try ecclesiastical cases ; but 
 surely this is to introduce a confusion of ideas. The 
 ecclesiastical Law and its Courts have an immemorial 
 organisation of their own, separate and alien from the 
 Common or Statute Law and Courts ; and, though tho 
 Civil Law of the kingdom has adopted the Church's Law 
 and Courts into the general system, yet it has, hitherto, 
 been in bond fide recognition of such separate organisation, 
 and by giving civil sanction and authority to this ; but it 
 setms to me to be neither a logical nor a legal position lo 
 assume, from the actual relation of the ecclesiastical to 
 the general Law of the land, that the former sustains an 
 obligation upon the Clergy to accept an encoaching and 
 subversive Act of Parliament such as the P.W.R.A. 
 
 10. You candidly allow that "innovations from an 
 antecedent rule or practice " have been made, but do not 
 think they are " real and substantial transgressions of a 
 settled rule or rules of definite religious obligation." I 
 have tried to show that the innovations are real and 
 substantial. Whether they cross and clash with a definite 
 religious obligation may perhaps be determined by a reply 
 to the questions : — (1) Were the constitutional status and 
 rights of the Church infringed by the passing of the 
 P.W.R.A. without proper reference to and accord with the 
 Convocation then legally acting under the Queen's Letters of 
 Business? (2) Was the cons itutional right of the Church 
 to have her own Diocesan Courts and Courts of Appeal 
 practically denied by the new Jurisdiction created by the 
 Act ? (3). Does the religious obligation of the Church and 
 individual clergymen to obey what "this Church anci Realm 
 hath received " apply to what Parliament alone enacted 
 (4) Is the authority of the Church as to Rites and Cere- 
 monies (Art. XX.) a religious obligation, atd is not that 
 authoiity substantially set aside by the assumed authority 
 of Parliament acting alone ? (5) Is it not a clear con-
 
 w 
 
 travention of a rule of religious obligation that a Lay 
 Judge, appointed under the sole authority of Parliament, 
 in a Jurisdiction created by the same, should assume to 
 inhibit a clergyman from distinctly spiritual functions 1 
 That the authority which conferred spiritual character 
 can alone take it away, is, I believe, an unquestionable 
 truth. 
 
 If rules of definite religious obligation have not been 
 transgressed in the instances here referred to, it would be 
 desirable to know definitely what would constitute such 
 transgression. At least, an undoubtedly great religious 
 trial is being forced upon the Church and Clergy through 
 the, as I believe, unecclesiastical and unconstitutional 
 operation of the P.W.R.A., and a very violent strain is 
 being applied to the relations of Church and Parliament, 
 the issue of which may, I fear, and that speedily, be 
 disastrous. 
 
 I am your faithful servant, 
 
 W. E. HOBSON, 
 
 Chajplain. 
 
 Feb. 15, 1877.
 
 (A Eeprint from The Church Reviexo.) 
 
 TO THE 
 
 RIGHT KEY. THE LORD BISHOP OF LINCOLN. 
 
 My Lord, — That I write to you now with unchanging 
 deep respect and admiration is simple truth, and you will 
 believe that in here noticing an expression in your letter 
 in the last Guardian I do so sincerely for guidance and 
 the truth's sake. 
 
 I was most thankful to learn from you that in my 
 "Vestments and Law" I had come to a similar con- 
 culsion to your own (gained by a difftriog process and 
 with profouoder learning and experience), and I would 
 earnestly hope that now I may not err from your judg- 
 ment. 
 
 The expression before me is in your "earnest advice 
 and affectionate entreaty " to the clergy of your diocese 
 (which all dioceses will regard) to "submit to human laiv in 
 things that are not clearly contrary to the Divine law." 
 
 I will humbly beg of you to permit the expression of a 
 few questions and remarks : — 
 
 1 . As to the word " submit," I conceive a difference 
 may exist between submission and icillinr/ obedience. That 
 no one may resist a de facto law I allow ; if it be 
 unjust, he must still submit and " suffer wrongfully," and 
 there is no loss of moral ground by such submission, since 
 law, if not foixe, is yet the master of force ; but active 
 and still more willing, obedience is a different thing.* 
 
 * " He does not say that every one must always obeij, but 
 that he must schmit. 'Semper necesse est suljici, nan semper 
 necesse est ohedire,' says Bishop Sanderson (Prtelec. vi. 3)." 
 I had not seen this when writing to the Bishop (Lincoln) 
 whose words these are (Greek Test., on Rom. xiii. 1). — 
 W. F. H.
 
 12 
 
 Mr. Tooth I hold should have submitted to the inhibitian 
 under protest, and should not renst it by what seems to he 
 ■virtually physical force ; but I have a different feeling with 
 regard to his actively obeying Lord Penzance's decision as 
 to the ordering of Divine service and his own spiritual 
 functions. The7'e I think the final supremacy of conscience 
 might assert itself. In a personal case I obeyed toillingly 
 my ordinary's judgmpnt not to light my two altar-candles, 
 but after this /orma^ judgment certain persons who had 
 appealed for that judgment proceeded to "order" me to 
 remove the cross and candlesticks. I refused, and when, 
 with the ordinary's " sanction," without any direction to 
 me, they entered my chapel and took away by force both 
 cross and candlesticks (which the ordinary had not con- 
 demned) I simply submitted in silence. Is my distinction 
 valid ? 
 
 2. As to *' human law," I wholly followed your action 
 in the House of Lords and in Convocation, in your noble 
 and wise attempt to get the rubrics cleared of ambiguity, 
 and so to have the human law — the decisiors of the 
 Courts of the Realm — correctly defined, in order that the 
 human law should not possibly clash with the Divine, and 
 that varying and inconsistent decisions of the Courts should 
 not harass the conscience and hamper the actions of the 
 Clergy. My thought is that when the law is ultimately 
 pronounced, there is in the Church of England no option 
 for any (including Bishops) but to submit and obey or to 
 depart — the Nonjurors' principle ; but when there are two 
 discordant decisions, as in the St. Alban's and the 
 Purchas cases, a question arises as to which is then really 
 the human law. As to the Purchas decision, it was 
 attempted to force this (of least weight with some chief law 
 authorities) upon some dioceses. I then felt that the Arch- 
 bishop who admonished his clergy that they must obey 
 that decision when called upon individually to do so was 
 in error ; for, if the decision were human law really, then
 
 whether called upon or not, it was a matter of conscience 
 to obey it or submit to it. 
 
 3. The sweeping decisions of Lord Penzance may 
 puesibly not all stand the wider and more accurate investi- 
 gation3 of the new Court of Appeal. He has said a word 
 which I felt to be cruel to a condemned clergyman and 
 tending to diminish respect for the office of a Judge who 
 might so indifferently put off' responsibility. ** If my 
 decision is wrong the Court of Appeal must rectify it " (or 
 words to that effect), and it seems to me that, under these 
 heads 2 and 3, to decide that willing obedience is a duty is 
 questionable, though submission to a direct order of Court, 
 in particular cases and for the individual prosecuted, is in 
 both cases to me unquestionable. Am I in error ? 
 
 4. As to " Divine law," pray pardon me if I note 
 that widely different senses may be attached to these 
 words, varying between extremest Puritanism and 
 Ritualism, but I feel assured that your Lordship will 
 include in this term the essential and undoubted organ- 
 isation of " the Catholic Church." Now that organisa- 
 tion has ever included the internal ordering (if not more) 
 of t'le whole Church by the Church herself, and the 
 essential authority of the Bishops in their dioceses over 
 the official action, order, and administration of particular 
 churches or parishes and of the Clergy. These two 
 principles are moreover acknowledged in our Prayer Book 
 (which is of statutory obligation). "The Church hath 
 authority in rites and ceremonies," &c., and if any dispute 
 arise as to anything in the rubrics " the parties that so 
 doubt shall resort always to the Bishop of the diocese," 
 &c. (Preface to Prayer Book), 
 
 Is not the P.W.R. Bill, under which Lord Penzance 
 acts, " clearly contrary to the Divine law," since the 
 inherent authority of the Church is under it assumed by 
 a layman ? 
 
 Again, the diocesan authority of the Bishops (in their
 
 14 
 
 several Courts) is invaded, and ancient diocesan liberties 
 are infringed by a centralising secular power, and tbe 
 *' government of the Church of England " according to 
 Canon VII. is encroached upon. Novs^, if the authority 
 of the Bishops be of Divine order (even though their 
 Courts be not so), is not this " clearly contrary to the 
 Divine law"? llie very 'principle of the Papacy is 
 involved in the subjugation of diocesan Episcopal authority. 
 
 4. It may be said that the Bishops, exceptis excipiendis, 
 yielded their authority ; but if it be Divine, then was it a 
 trust which they had no power to yield. Nor might they, 
 still less, yield the ancient rights of Clergy and Laity in 
 those Courts, which, following the Common Law, were so 
 to be kept as to consult their "behoof" and convenience 
 (Canons XCVI. and CXXV.) The Divine right of the 
 Clergy to be judged by their diocesan is now taken away 
 virtually by this human law, which therefore seems to be 
 herein '"clearly contrary to the Divine law." Mr. Tooth's 
 offer to be judged by his Bishop, and his placing his 
 resignation upon the issue, however intentionally noble, 
 was vain, for the Bishop had lost his power in his own 
 Court. 
 
 5. Again, immemorial usage had prevailed that in the 
 Bishops' Courts their Official Principals and Judges should 
 be persons (lay or clerical) learned in the ecclesiastical 
 Laws (ecclesiastical lawyera), whose decrees, &c., were de 
 jure the Bishops', in whose usuaes proprio vigore they were 
 
 pronounced and executed ; but now under the new Act 
 the civilian Judge pronounces in his own name, and in his 
 own right, such decrees, &c., and that in sacris. Is it 
 not radically antagonistic to the Divine law that a lay 
 person should virtually occupy the Bishop's throne and 
 function ? 
 
 6. Again, the synodical action of the Church (in 
 England without or in conjunction with Parliament) is 
 her proper- function, as ancient substantially as the very
 
 15 
 
 existence of the Church ; and an Act affecting the Church 
 in her internal order, passed in neglect of the "Sacred 
 Synod of this nation in the name of Christ, and by the 
 King's authority assembled " (so actually sitting), as was 
 the P.W.R.A., although of valid force, is yet under solid 
 guspicion, at least, of being against the Divine law. At 
 the Restoration and the Revolution, the last two crises of 
 our Church, the Convocation, " the Church of England by 
 representation" (Canon CXXXIX.), was fully recognised 
 by the State, and no other "representation" of the 
 Church (say the spiritual peers) can be allowed to be valid 
 or lawful. 
 
 7. One other point only I will submit — viz., the 
 inhibition of clergymen by Lord Penzance's sole authority. 
 I again admit that this is, alas ! valid in law and force, 
 and therefore must be submitted to, under protest (in 
 which sense a letter will, I expect, appear in the next 
 Church Review) ;* but, my Lord, I must cease to believe in 
 the Divine origin and commission of the Church before I 
 can concede willing obedience to such an inhibition to be a 
 duty. The Parliament by its judge might, as the ultimate 
 power in things temporal, interdict the use of any church. 
 Such Judge might on the same principle commit to prison 
 for contempt of Court (whatever the subject matter of hia 
 judgment), but to inhibit a priest from spiritual functions 
 is inherently and inalienably the power alone oE the 
 spiritualty immediately from the Lord. Is not this act of 
 the secular Judge "clearly contrary to the Divine law" ? 
 I cannot see otherwise and I think that Mr. Tooth or 
 Mr. Dale might each hold the inhibition in this aspect to 
 be invalid in foro conscientice, and might use all spiritual 
 functions whenever and wherever they may find an 
 opening — on the principle of the Apostles as against the 
 
 * Church Eevieio, 6th Jan., 1877— " A Canterbury Suf- 
 ferer."
 
 1« 
 
 wrong of the ruling powers at Jerusalem — until foroe 
 were brought to bear to silence them. 
 
 Pray forgive me, my Lord, for intruding my thoughts 
 and anxieties before you ; but if it were possible for you 
 to write something (with or without reference to this 
 letter) in elucidation of the general terms of your exprea- 
 eion upon which I have written, it might be a vast boon 
 to many a vexed mind at this time, for we have, thanks 
 be to God, some Bishops to whom every priest would b5w 
 with deference, and most priests with willing obedience to 
 their guidance. 
 
 As to the " practices " named by you, I could wish that 
 much might be given up for peace and charity's sake, 
 though I fear the evil spirit of persecution now abroad 
 would not even thus be satisfied, — I subscribe to tha 
 reverent conclusion of your letter, and am your Lordship's 
 bumble servant, 
 
 W. F. HOBSON, 
 
 Chaplain. 
 
 Ath Jan., 1877. 
 
 LONDON : 
 % D MADDICK AND CO., PRINTERS CRANE COURT, ^IBBT STElSfi