^ 
 
 ^^hTt-a
 
 L 1 B RA RY 
 
 OF THE 
 
 U N IVLR.S1TY 
 
 or 1 LLl NOIS
 
 From the Author. // 
 
 CONSIDERATIONS^ 
 
 ECCLESIASTICAL COURTS 
 
 AND 
 
 CLERGY DISCIPLINE. 
 
 BY 
 
 CHARLES JAMES BURTON, M.A., 
 C^auaUor of Carlisle. 
 
 LONDON: JAMES PAllKER & CO. 
 CARLISLE: CHAS. THURNAM & SONS. 
 
 1875.
 
 CONSIDERATIONS 
 
 ON THE 
 
 ECCLESIASTICAL COUFITS 
 
 AND 
 
 CLERGY DISCIPLINE 
 
 BY 
 
 CHARLES JAMES BURTON, M.A., 
 tfbanrtllor of (farUslc. 
 
 LONDON: JAMES PARKER & CO. 
 CARI^ISLE: CHAS. T II U R N A M & SONS. 
 
 187
 
 CONSIDERATIONS. 
 
 The Church of England stands, in respect of its discipline, 
 in a position exciting a very justifiable wonder. It is subject 
 to the rule of no less than three different systems. There 
 is the ancient Consistory Court; there is the jurisdiction 
 created by the Discipline Act of 1840; and there is the Act 
 of the last Session of Parliament, called " The Public Wor- 
 ship Regulation Act." We are, indeed, promised the intro- 
 duction of a measure for the remedying of the defects and 
 mistakes of the Act of ] 840, but not the slightest hint has 
 been given of the character of it ; all we are permitted to 
 suggest to ourselv^es is, that the Parliament of 1875 will be 
 called on to condemn the proceeding of the Parliament of 
 1840 ; that is, as is usual in ecclesiastical legislation, those 
 who are the most deeply interested are not to be informed 
 until it shall be too late to remonstrate with effect. Attempts 
 at hasty legislation are always unsatisfactory, and often 
 mischievous. Let us take for example the Act of the last 
 Session, to which I have referred. The debates on the subject 
 amongst the Bishops began, as we have good reason to be- 
 lieve, in the month of January ; but the measure itself, on 
 which they then determined, was unknown until presented 
 to the House of Lords towards the end of April : the con- 
 sequence was its rejection, with the instant and ill-considered 
 substitution of another, which, in its turn, yielded to another, 
 and which, with considerable and so material alterations as 
 to have an absolute appearance of beginning de novo, was 
 sent to the Commons : there again changes upon changes 
 were made, and the Bill was sent back to the Lords with
 
 much that was new, and much also that was opposed to the 
 presumed wish of that House, 'J'hus we have a measure 
 which in all respects satisfies no one. A proper means of 
 out-of-doors consideration, and an ingenuous desire of shew- 
 ing a singleness of purpose in the advancement of the 
 character and of the right interests of the Clergy, who 
 would not have been found an unreasonable body, with at 
 the same time an unmistakeable guidance to Church prin- 
 ciples, leaving no room for suspicion of undue leaning to 
 party or personal purposes, would have commanded attention 
 and deference. 
 
 I offer no excuse for the step I am taking. The state of 
 the ecclesiastical law as to discipline has occupied my mind 
 during many years ; and I have also endeavoured to do 
 something towards its improvement. I have hitherto 
 worked ineffectually, though, I must add, not without 
 encouragement, which, however, had no realization. The 
 documents, consisting of a Charge to the Clergy of the 
 Diocese of Carlisle in 1865, the Form of a Parliamentary 
 Bill drawn in the same year at the instance of the then 
 Bishop of Carlisle, and a Paper delivered at the Carlisle 
 Diocesan Conference in August last, and all which I now re- 
 print, will fully explain my meaning throughout. I have 
 been Judge of the Consistory Court of Carlisle nearly 
 twenty years, and have in that capacity been called on to 
 decide in cases involving almost every variety of ecclesias- 
 tical law, and may, therefore, be presumed to be not 
 indifferently acquainted with either the advantages or the 
 defects observable. Until the year J 840 the powers, or 
 duties, of these Courts were very extensive. They took 
 cognizance generally of ecclesiastical matters, including 
 testamentary ; those concerning matrimony and divorce or 
 separation were considered to be rightly of ecclesiastical 
 cognizance, as indeed they were, marriage being of Divine 
 ordinance and rule. In 1840 the Legislature thought fit, 
 at the instance of the Bishops, there being then no actual
 
 Convocation to consult, to pass the Church Discipline Act. 
 Some years afterwards it also removed from these Courts 
 testamentary and matrimonial and divorce causes. Then 
 came the last measure affecting the Church, the Act for the 
 Regulation of Public Worship. The jurisdiction of the 
 Courts now extends but to the Churches and their appur- 
 tenances, or, to questions of rebuilding, of restoring, and of 
 improving ; of order, and government in conduct ; the Act 
 I have named last transferring elsewhere the two latter 
 articles from a future early date. It is requisite to bear all 
 this in mind, because the proceedings under the Act of 1840 
 have been much charged on the Consistory Courts, whereas 
 they have no concern with anything relating to them. I 
 may not disguise from either myself or others that it is the 
 entire abolition of these Consistory Courts which seems to 
 be desired, and likewise aimed at ; nor, if the public 
 service required, consistently with the integrity of the 
 Church, would I raise an objection ; nor would I for an 
 instant oppose any real improvement ; but, it is because 
 I believe, that, far from the public service requiring, 
 far from its not being detrimental to the interests of the 
 Church, it would be directly injurious to both, that I do 
 give it such opposition as I am enabled. The Act of 1840 
 professes to remove or to remedy the defects of the Con- 
 sistory Courts, and throws the cases with which it deals into 
 the hands, personally, of the Bishops, retaining only the 
 authority of the Provincial Courts as Courts of Reference, or 
 for removal in certain instances of them, and as Courts of 
 Appeal : in fact, doing in some part what the Pubhc 
 Worship Regulation Act proposed to do still further ; 
 extending the personal powers, or, to speak more correctly, 
 the personal responsibilities, of the Bishops. The diminution 
 of expense, and the prevention of delays, were the alleged 
 purposes ; but, what has followed ? Expenses have not been 
 diminished ; delays have not been less ; and in truth it may 
 be said of it as of much else, that the old complaint, " Reform
 
 is a very costly affair," is not untrue. Under this Act 
 four trials are provided ; one before a Commission, having 
 all the attributes of a regular Court of law, a Commission 
 appointed by the Bishop, one member out of the five con- 
 stituting it being named by the party implicated ; the 
 second before the Bishop himself, assisted by five Com- 
 missioners appointed by himself; the decision being in 
 himself, however the five may differ from it ; the third on 
 an appeal to the Judge of the Provincial Court ; and the 
 fourth on an appeal to the Judicial Committee of Privy 
 Council, one member at least of which must be a Bishop. I 
 have often wondered with what face such a measure, with 
 the profession of being an amendment of the law, and a 
 simplification of proceedings, could have been proposed. 
 This, nevertheless, was solemnly presented as a beneficial 
 reform ; and as one of kindly intention to all parties. This 
 was the remedy for all grievances ; making prosecution 
 cheap, and defence easy. We know too well what both 
 complaining and defending parties have been subjected to 
 by it, the ruinous expenses, the long anxieties, the hindrances 
 of justice, the non-settlement of doubtful questions, nay, the 
 very adding of doubts, and the confusion not to say discredit 
 of law. No benefit has been obtained. The Public Worship 
 Kegulation Act touches on but one point of ecclesiastical 
 discipline, that of cases in respect of the regulation of public 
 worship : it does not comprehend any of what we may call 
 personal discipline ; but rather directs its notice to disputed 
 points of practice, seeming to have a character, and making 
 it be thought to be an encourager, of contention : it does not 
 give to the Court it institutes any cognizance in relation 
 to personal discipline : it proposes but to interfere with 
 certain non-compliances or certain superfluities which may 
 now be legally declared to be such, or which may here- 
 after be so declared, as concerns the conduct of public 
 worship and the character of its appliances. The notice 
 to which I have referred, promises to deal with the whole
 
 state of Clergy discipline, as is the only reasonable con- 
 jecture we can form of it, and that all matters relating 
 to Clergy discipline will be brought, or proposed to 
 be brought, under one jurisdiction ; and authorises the ex- 
 pectation that it shall likewise include all matters which are 
 at present under the cognizance of the Consistory Courts ; so 
 far effecting a revolution ; and it is on this conjecture, and I 
 wish it were less reasonable than it is, that I have formed the 
 purpose now in hand, and which, besides, induces me to set 
 these Courts in their true light and position. It is un- 
 doubted, no one will attempt to say otherwise, that the pro- 
 ceedings in the Consistory Courts do require revision ; they 
 do require to be relieved from many incuiubi-ances and 
 hindrances which stand in the way of as speedy decisions as 
 may be compatible with justice, and of many expenses in- 
 cident to protracted suits. This is an observation which may 
 apply to all our Courts of Law ; and, in general defence, I 
 will add, it is mainly to be attributed to the disputing 
 parties themselves, not to any action of the Courts, and from 
 the desire of each one to take advantage of other, whether 
 by means of the creation of delays, or the captious raising of 
 objections, and which it is very difficult for any Court suf- 
 ficiently to restrain. I may add, though I am well aware of 
 the danger I am incuriing in the remark, the large items in 
 many instances of advocates' fees : these, as has been shown 
 frightfully of late, swell the amount of costs to an extent we 
 may equally wonder at and lament, but, in present circum- 
 stances, cannot control. But, who are in fault? not the 
 Courts : they have neither power nor advantage herein : it 
 is the eagerness of litigants to which it is really attributable. 
 All this is no new discovery, and is but of passing reference. 
 I am now engaged on the question of the Consistory Courts ; 
 it has during the last sixty years or more been strongly 
 pressed on the Legislature, but any attention to the subject 
 was long refused ; and when it did at length give an ear to 
 the call made on it, it was only to assent to the unhappy
 
 measure of 1840, as the first instalment ; and then, some 
 time afterwards, to relieve these Courts from their jurisdiction 
 in testamentary and matrimonial causes ; when I use the 
 word " relieve/' I must not be understood to speak appro- 
 vingly, but as using a legal term ; I ought, however, to 
 mention the introduction of oral evidence as a valuable im- 
 provement ; and rejoice that I can find one point to rest on 
 with satisfaction. In other respects the Courts have been 
 left in their original state ; with, however, certain episodes 
 in ecclesiastical legislation which may not be unnoticed ; the 
 removal of cases of slander, a true relief in its real and not 
 legal meaning, with also that of immoral conduct in Laymen ; 
 the abolition of the penalty of excommunication ; and the 
 transferring to the ordinary Justices of Peace of the cogni- 
 zance of disturbance in and about our Churches. It will not 
 be improper that I should here express a deep regret that the 
 question was not taken up on the early introduction of it by 
 one, more fitted than any one else, by his vast learning and 
 experience, the late Lord Stowell. He lived, and was in the 
 full vigour of his strength and intellect, in the early time of 
 its agitation ; and if he had, as was at one time expected, 
 given his mind to the subject, I doubt not that he would 
 have settled it usefully and justly. What I am desirous of 
 urging is, that if these Courts were allowed to proceed much 
 in the same manner as our ordinary Temporal Courts, I do 
 not include the Courts of Chancer}^, it would be more ad- 
 vantageous to leave all questions of discipline with them 
 than to pass them over to any other jurisdiction. It is to 
 be borne in mind that the offences to be dealt with are 
 mainly such as would be offences in conscience only in other 
 parties, and not legally amenable ; other offences such as 
 those that come under the Public Worship Regulation Act, 
 are of the peculiar character the entertainings of which must 
 be provided for by exceptional law; all such involving 
 doctrine in some shape or other, if not in reason, yet in im- 
 putation ; such as, for instance, the setting up of a cross, the
 
 " eastward/' or other position, a reredos, even a credence 
 table, or a vestment. It is but in common sense that a 
 resort in all such cases should be had to a tribunal, not only- 
 competent as to knowledge or ability, but in the direction 
 of the mind to such peculiar subjects ; and, let any miscon- 
 strue me as they may, a distinctive Church character should 
 be attached. How this proposition can be denied by Lawyers, 
 with the Courts of Chancery, and all their exceptional 
 power before us, I do not understand ; I know there is a great 
 desii-e with many of the legal profession to reduce all to one 
 system ; but I have always believed, and still do believe, 
 that our varieties of system, comprehending every possible 
 case and circumstance, have been a just subject, J will not 
 say of boast, but of thankfulness. Lawyers themselves, at 
 least those who have contemplated a course advantageous 
 both to themselves and to the public, have directed their 
 principle and method of education with the more special 
 bearing on the course most suited to their presumed bent and 
 capacity ; and thus, whatever legal question may have 
 arisen, has always been met by a reliable answer. My view 
 of the Public Worship Regulation Act may be learnt by a 
 reference to the accompanying paper. I will only say here 
 that I object to it, and am discontented with it, as partial in 
 its proposed operation, and misunderstanding in its assump- 
 tions ; it deals with but one set of offences, or alleged offences, 
 when such a tribunal ought not to have been constituted 
 without a full development of its purpose, actual and 
 prospective : it seems to be not only an experiment in law, 
 but a drifting on unknown waters. It is also chargeable 
 with leading, as it stands, to no final result, except where an 
 appeal is permitted ; I mean where decisions are to rest with 
 the Bishops. If the practice of appeals fiom interlocutory 
 decrees in the Consistory Courts were abolished, and in all 
 cases a simple declaration with counts were enabled, vexatious 
 and delaying pleas, or allegations would be avoided, there 
 being but one appeal, and that on points of law, in application
 
 10 
 
 to the Court of Final Adjudicature. I know it is strongly- 
 maintained by some that there should be an intermediate 
 appeal, such as to the Provincial Court. I think otherwise.* 
 The only reason for it must be, and is professed, that it would 
 too much burthen the Final Court ; but I do not doubt that 
 it would eventually very much relieve that Court : the de- 
 cisions of the Final Court would cease to be hampered with 
 the decisions which must always be taken into some account, 
 and so have a more simple course before them. The decisions 
 of the Final Court would necessarily be of the highest 
 authority; and, when we look into the constitution of it, 
 we are satisfied not only that true law will be delivered, but 
 be received as incontestable, as an imperative rule, and so 
 guide the Primary Court, whatever it may. be, as to be a 
 great preventative of further dispute. It might happen with 
 the Intermediate Court, that its decisions from some cause or 
 other might, though faulty, be acquiesced in, and so be no 
 authority for future cases, but to which the recorded decisions 
 of the Final Court would always give a ready solution. The 
 Act to which I have referred gives a large power to — or to 
 speak more properly, for I am not to suppose it is power as 
 such which is sought after — imposes a heavy and very un- 
 desirable responsibility on the Bishops, and with which they 
 ought not to be burthened. Their duties are weighty 
 enough, and in some instances actually more than enough, 
 already. We have had constant reminders, and even com- 
 plaints, from themselves that they are so. The procedures 
 under this Act are very remarkable, and must have called 
 forth some singular ability of invention. On a repre- 
 sentation to the Bishop by persons named, and in form and 
 circumstances described in the eighth section, he may stay 
 any proceedings, simply depositing in the Registry of the 
 Diocese and sending a copy of the same to a complaining 
 party, and also to the party complained of So the case will 
 be closed for that turn. Admitting that it is very desirable 
 and very proper that, in many cases of dispute, frivolous or
 
 f 
 
 11 
 
 unimportant, there should be not a controlling but a per- 
 suading agency, the interposition of the Bishop may be very 
 valuable, happily settling disputes and able to restore peace 
 and good feeling ; and seeing that all this may be effected 
 without legal enactment, a judicial authority in any such 
 respect is to be deprecated. It may lead to much partial 
 doing, and likewise injuriously interfere with other duties of 
 the Bishop where his voice and admonitions ought to be 
 without dispute ; it at least will not tend to the settlement 
 of difficulties, or the discouragement or allaying of feelings 
 inconsistent with the Christian profession. If the Bishop 
 shall determine that there is sufficient cause for proceeding, 
 he shall propose to the parties to submit to his decision 
 without appeal ; if they consent, he shall hear the case in 
 any way he may think fit, either publicly or privately, or 
 with or without legal advice or assistance. Who, other than 
 the Clergy, would have had such a proposal made to them ? 
 By whom else would it have been listened to with patience ? 
 No appeal, thus, will lie from the Bishop's decision ; and 
 though the decision may not, as it cannot, settle any point 
 of law, it shall be final in the case. A more un-English 
 proceeding can hardly be imagined. " The parties may" 
 indeed, the parties, it is to be remarked, " may at any time, 
 after the making of the representation to the Bishop, join 
 in stating any questions arising in such proceedings in a 
 special case signed by a Barrister-at-Law for the opinion of 
 the Judge ; and the parties, after signing and transmitting 
 the same to the Bishop, may require it to be transmitted to 
 the Judge for hearing, and the Judge shall hear and deter- 
 mine the question or questions arising thereon, and any 
 judgment pronounced by the Bishop shall be in conformity 
 with such determination." Not one party, but both parties 
 must, in order to obtain the opinion, be concerned in the 
 requirement. It is not likely that the two parties will so 
 agree ; such a course may be suitable to the purpose of one 
 and not of the other. In point of fact, this very enactment
 
 12 
 
 declares the incompetency of the Bishop as a Judge ; it 
 supposes something to arise with which he has no means of 
 dealing. This, moreover, is one of the methods invented for 
 the avoiding of vexation, expense, and delay. Such questions, 
 raised whether by both or either one of the parties, will be 
 exhaustless, very soon wearying both the Bishop and the 
 Judge. Any Lawyer will tell us of the wretchedness of this 
 provision : any will tell us that all might be avoided by 
 allowing no legal sentence to be given without a means of 
 stating and arguing it on legal authorities and in legal 
 manner. For my own part, I cannot recognize a Judge 
 in camera unpossessed of the usual qualities and circum- 
 stances of judicial constitution. It will not be irrelevant 
 that I state, in observation of the assigning to the Bishop the 
 oflSce of a Judge without appeal on consent of the parties a 
 strong case in point. Many years ago, on a proceeding in 
 my own Court, the respective parties proposed that I should 
 settle the matter on the allegations and the evidence, with- 
 out argument on either side ; accepting their joint under- 
 taking to abide by any decision without appeal. I accepted 
 the former part of the proposal, but refused the latter. I 
 would not incur the responsibility of such a method ; 
 accordingly, I decided the case as requested, saving the 
 right of appeal : and what followed ? Both parties became 
 dissatisfied : each one submitted a case to eminent Counsel, 
 seeking advice on the fitness of an appeal. An appeal was 
 not advised. If I had assented to the proposal of an obli- 
 gation not to appeal, a lasting discontent would have been 
 entertained by both, and the judgment would not have been 
 respected ; and the question would, in all probability, have 
 been raised again in some other form. I may add that the 
 judgment has to this day been regarded with satisfaction. 
 A strong lesson is this, not to abrogate, even with the con- 
 sent of the parties concerned, a positive right : the abrogation 
 will some day be quarelled with, with the aggravation of a 
 presumed act of folly in the assent to it. Now we are to see
 
 13 
 
 how the matter can be brought before the Judge appointed 
 under the Act. To qualify themselves for this privilege, the 
 arbitrary decision of the Bishop must be resisted or refused ; 
 the Bishop will then send the representation to the Arch- 
 bishop of the Province, and the Archbishop will send it to 
 the Judge, requiring him to appoint a hearing at any place 
 within either the Diocese or the Province, or in London or 
 Westminster. We should not forget that the lessening of 
 expense is one point said to be aimed at ; but, how that so 
 desirable object shall be accomplished by the removal of a 
 cause from Carlisle to York or London, with all its array of 
 witnesses, I am at a loss to imagine. The Judge is then 
 directed to give twenty-eight days notice to the several 
 parties of the time and place when and where he will hear 
 the cause ; having before such notice required from the 
 complainant or complainants such security for the costs as 
 he shall think fit. This is the most sensible part of the 
 whole measure. It is to be remarked that the Judge is not 
 bound to any space of time within which he is to give his 
 notice ; he may possibly give it within a month, or a yeai', 
 or even a longer term ; nor indeed can he be confined to any 
 limited period ; for, if the amount of business should at all 
 approach to such as alone could authorize this measure, the 
 fixing of a date for any one case would be almost an im- 
 possibility. Within twenty-one days after the Judge's 
 notice the party complained of may "make a succinct answer" 
 to the representation ; and, if he shall not do so, he shall be 
 taken to deny the allegations. Of course he will make no 
 "succinct answer" ; he would gain no advantage, but might 
 rather damage himself by it : if the silence were to be taken 
 for confession, I could understand it ; but, as it stands, I 
 must be permitted to say that it looks very much like non- 
 sense. We next arrive at the tribunal of the Judge. I have 
 no observation to make on the proceedings before him ; it 
 may be taken as certain that they will be conducted with 
 ever^ form and feature befitting his office, I have none to
 
 14 
 
 offer on the Court which is to decide definitively, that is, on 
 appeal. Our open Courts of Justice may always be relied 
 on. But, I will ask, how is a single Judge to perform all 
 this work, and such more work as I apprehend will be 
 assigned to him ? Then, if we are to have an additional 
 Judge or Judges, will it not be found necessary that there 
 should be an additional Court or Courts ? and, if so, where 
 will be the pecuniary gain which is so much looked to in 
 legislative reforms? This brings me to a very material 
 point, very material assuredly with some, with most people, 
 the general expense : a certain stipend is to be appointed to 
 the Judge, no provision being made for anything beyond. 
 The travelling expenses of the Judge may be large, and 
 ought not to be scant ; and he must have officials usually 
 appurtenant ; with much circumstance besides, necessi- 
 tating expenses of the amount of which we can form no 
 calculation. And what if we should have two or more 
 Judges ? Our seconomicals do not seem to have taken these 
 points into consideration. But they must be both con- 
 sidered and met. There was indeed a notable scheme of 
 charging the expenses on the funds of the Ecclesiastical 
 Commission, or on our ill-endowed benefices to which in 
 fact, in law, and in justice, those funds belong. I believe 
 that is, as it ought to be, finally abandoned. Our Consistory 
 Courts are no charge on the public revenue ; all their 
 expenses are provided by fees, and these individually of 
 small amount, however it has suited some persons, by taking 
 the full amount of all as a reflection on each one, to make 
 out a swollen aggregate, much swollen also by the non- 
 deduction of necessary charges and expenses ; T say they 
 are of small individual charge on litigating parties, and 
 others who seek to its authority in aid of their own lawful 
 purposes ; assisted, too, by the fees on marriage licences 
 which are no harm on and no burthen to any one, a poition, 
 and not a small one of which too, goes into the public purse 
 as stamp duty ; and let me add that the office of Judge in
 
 15 
 
 these Courts is not sought for emolument ; if any shall so 
 seek to it, except in a very small number of the more 
 populous Dioceses, they will be grievously disappointed. 
 The Court of the Judge may be holden anywhere. Let us 
 look at the matter in its most serious light, that of the 
 nature of the business to be transacted. If it were to end 
 within the limits of the Regulation Act, the contentious 
 business under it might be managed by the Court it con- 
 stitutes, or the Courts it will be found necessary to con- 
 stitute, provided the active interference of the Bishops were 
 abstracted ; being but one portion, and that a very important 
 one, of what is contemplated. The powers of the Act of 
 1 840 are, I doubt not, to be transferred to this Court ; and 
 he must be a bold man, who will venture to enter so broad 
 a battle-field ; all questions relating to the conduct of the 
 Clergy are to be contested and decided in it. Need I say 
 more ? Next, for the Regulation Act may not be considered 
 but as a step in legislation on this particular subject, all 
 questions, I say, relating to all ecclesiastical matters now 
 cognizable by the Consistory Courts, are, we may, not 
 unsafely presume, to be referred to the Court of this Act, 
 or the Courts which are contemplated, provided the Bishops 
 so agree ; with all applications for faculties or licences for 
 the improving, or restoring, or rebuilding of Churches, and 
 other licences which the Consistory Courts may now grant 
 for various privileges and liberties ; all questions, also, 
 concerning the difficult and delicate and doubtful meaning 
 of the law of Church seats. These, and all other kinds of 
 business, which at present are under the direction and 
 responsibility of twenty-seven Courts, and the personal 
 jurisdiction of twenty-seven Bishops, under the Act of 
 1840, will have to be placed, as the law now stands, and we 
 believe is to be pi-oposed, in the hands of one, if there shall 
 be but one so ill-starred a Judge. But, I presume and I 
 repeat, it is not really intended there should be but one 
 Judge, and this the Bishops will do well to consider ; they
 
 16 
 
 will do well rather to turn their minds to the improvement 
 of their own Courts, by labouring for a better facility and 
 readiness of action. The principle of their Constitution is 
 right ; and it is but a regulation in conformity with the 
 natural improvements which a different state of society may 
 have called for, and which have been recognized in other 
 departments, that are required. I refer to the draft of a 
 Bill appended hereto, as setting out my whole plan ; and if 
 the difficulties be removed in some such sort as it points to, 
 I do not see what more can be required. Twenty years' 
 experience, and many more than twenty years of anxious 
 thought, have satisfied me that these Courts may be made 
 available to every purpose of ecclesiastical regulation. 
 
 I do not think it necessary to observe further on the 
 Regulation Act, whatever opinion I may have on the remain- 
 ing parts of it, many difficulties as I may see in its operation, 
 especially as relating to the questions which may arise be- 
 tween the Consistory Courts if they shall be permitted to 
 remain, with the authority of the Bishops, and with that of 
 the Judge, and also as to the penalties and the methods to be 
 applied to in regard of them ; I merely wish to show how 
 unadvisable it is in its principle ; and, if I be conceded to 
 therein, the other portions will be easily disposed of ; and I 
 will proceed at once to and conclude with some few observa- 
 tions on the Consistory Courts. They form a subject of vast 
 importance, and are to be dealt with in a very serious 
 manner. The business, now left to these Courts, as I have 
 said already, concerns the maintenance and care of the 
 Churches, the preservation of order within them, and that 
 general superintendence which is necessary to the securing of 
 them in the possession of their proper purposes. They are 
 presided over by a Judge, the Chancellor of the Diocese, the 
 Chancellorship being combined of two offices, that of Vicar- 
 General and that of Official-Principal of the Consistory 
 Court ; in the Diocese of Canterbury these offices are divided, 
 and the holder of neither is called Chancellor ; there is a,
 
 17 
 
 Yicar-General, and there is a Judge of the Court of Arches, 
 who is both the Diocesan and the Provincial Judge : there is 
 also a Commissary, as is the case in some other dioceses, 
 either for the convenience of remote parties, or from some 
 peculiar circumstances belonging to them ; an arrangement 
 of very early existence. Attached to these Courts, each one, 
 are a Registrar and an Apparitor ; and, until within the last 
 few years, all causes were conducted by advocates called 
 Civilians and Proctors, and all of whom were appointed or 
 admitted by the Bishop, presumed to be a competent judge 
 of their fitness respectively ; and who were also considered 
 to be, by their education and learning, specially skilled in 
 ecclesiastical and civil law. The courts are now thrown open 
 to all branches of the legal profession. All Barristers may 
 plead in them ; all Solicitors or Attorneys may practise in 
 them. By the confinement of the practice to the original 
 partieg, a more particular attention to the principles and 
 rules of the Courts was necessitated ; and I must say in 
 justification, that, even when the Courts were in full possession 
 of their former powers, the business, impeded as it was by the 
 difficulties I have spoken of, was admirably conducted. Any 
 inquiry into appeals would shew that they were compara- 
 tively few, and that, even when they did take place, the 
 decisions of these Courts were very i-arely reversed. I do not 
 think the extension to have been beneficial ; nor do I think 
 the public have gained by the system which has carried 
 business from it elsewhere : the expenses in testamentary 
 matters have been undoubtedly increased, and but few will 
 be found to believe that either public or private morality or 
 domestic peace has been better maintained under the new 
 matrimonial and divorce law. The division of legal practice 
 into several branches used to be looked on as a great excel- 
 lence of our system ; some one, under it, was always to be 
 found who had made each case as it arose his special study ; 
 thus, we had the accomplished Chancery Lawyer ; thus, the 
 ready and skilled Advocate in Statute and Common Law ;
 
 18 
 
 thus, the Civilian, and the Ecclesiastical Lawyer; thus, navi- 
 gation, and mercantile, and international law had their 
 special proficients. Let the case be what it would, some one 
 could be found conversant with all the legal bearings of it. I 
 doubt, I say, the advantageousness of the change. A multi- 
 farious study is not the most pi-ofitable ; that is a general rule ; 
 and the study of law is not exempt from it. Well, to return to 
 the immediate point. The Consistory Courts are constituted 
 as I have shewn. The Chancellors are the Judges, Judges as 
 Officials-Principal. And who are the Chancellors ? They 
 are appointed by the Bishops, and are their representatives, 
 as our other Judges are the representatives of the Crown ; 
 and, in their action, they are as independent of the in- 
 fluence, direct or indirect of the Bishops, as those others of 
 their source and head — the Crown. By the Canons, the 
 Chancellor must be "one that is learned in the civil and eccle- 
 siastical laws, and is at least a Master of Arts, or Bachelor of 
 Law, and is reasonably well practised in the course thereof" 
 The changes in the jurisdiction of the Courts have modified 
 these requirements, but a competent knowledge of the law 
 on which the}^ act is still essential. He may be either a 
 Layman or an Ecclesiastic. At present theie are twenty Lay 
 Chancellors or Judges, and seven Ecclesiastics. The office of 
 Chancellor, it should be borne in mind, as stated, consists of 
 two parts, that of Vicar-General, and that of Judge or 
 Official-Principal of the Consistory Court ; and it is in the 
 latter character he presides in that Court. The office of 
 Vicar-General is of a different description. It is thus in 
 every diocese, except that of Canterbury, where the Vicar- 
 General is one individual and the Judge of the Court, or 
 Dean of Arches, another. " The word Chancellor is not 
 mentioned in the commission, and but rarely in our ancient 
 records, but seemeth to have grown into use in imitation of 
 the like title in the State ; inasmuch as the proper office of a 
 Chancellor as such was to be keeper of the seals of the Arch- 
 bishop or Bishop, as appears fi'om divers entries in the
 
 19 
 
 Registry of the Archbishops of Canterbury. This office, as 
 it is now understood, includeth in it two other offices, which 
 are distinguished in the commission by the titles of Official- 
 Principal and Vicar- General. The proper work of an Official 
 is, to hear causes between party and part}'-. The proper work 
 of a Vicar- General is, the exercise and administeration of 
 jurisdiction purely spiritual, by the authority and under the 
 direction of the Bishops, as visitation, correction of manners, 
 granting institutions, and the like, with a general inspection 
 of men and things, in order to the preserving of the dis- 
 cipline, and good government, of the Church. And although 
 these two offices have been ordinarily granted together, yet 
 we find in the Acts and Records of the several Sees frequent 
 appointment of Vicars-General separately upon the occasional 
 absences of the Archbishops or Bishops.""^ Ail Lawyers agree 
 that " this office is so necessary to support the Episcopal 
 power, that, in case a Bishop shall neglect to dispose it, the 
 Archbishop may nominate and impose one upon him.""^ 
 These authorities are sufficient to this point ; and I avoid all 
 multiplication. An objection has been raised to the holding 
 of the office of Chancellor by an Ecclesiastic : it being urged 
 that it ought to be in the hands of a professional Lawyer ; 
 and I might be thought disingenuous if I did not state that 
 Bishop Gibson has expressed an earnest wish that the two 
 offices of Vicar-General and Official-Principal should be 
 holden separately ; the former being an Ecclesiastic, and the 
 latter a Layman — a Lawyer ; and mainly on the principle 
 that the Judge of the Court should be an actual legal prac- 
 titioner ; but he in somewhat overthrows his own argument 
 by insisting that the Vicar General should be a resident 
 Clergyman, competent to advise the Bishop in all matters ; 
 and how is he to exclude legal matters from either require- 
 ment or consideration ? The Bishop seems to suppose that an 
 Ecclesiastic can have no skill in ecclesiastical or civil law. 
 
 * Gibson, Burn, Stephens, &c.
 
 20 
 
 He was himself a striking example to the conti-ary ; and 
 many others likewise might be so named. It is not for me 
 to say much on the holding of the office by an Ecclesiastic ; 
 but I will presently offer a few words on that point. I must 
 first observe on the exclusive appointment of a professional 
 Lawyer. I do not intend either to argue or to object ; but I 
 will ask a first and an important question, — Can you ensure 
 the actual performance of the duties by such an one ; the 
 regular and constant performance, not the occasional at- 
 tendance on the demand of some extraordinary cause ; but 
 the ever-watchful care ? We know that the professional and 
 non-resident Chancellors have been largely represented in 
 the Courts by Surrogates, usually Clergymen in the Cathedral 
 towns. These Chancellors are for the most part resident in 
 London, the abiding place of all Lawyers of eminence. It is 
 only necessary to name this difficulty in order to shew that 
 the office cannot be effectively filled by the confinement of 
 it to such persons. It may be so in London ; it may to a 
 certain extent be so in Canterbury ; but not elsewhere. The 
 London resident will never find it worth his while, it would 
 be a serious damage to him personally, to travel once a 
 month, or once a quarter, to a considerable distance, for the 
 purpose of presiding in the Consistory Court. He has never 
 done so hitherto. Besides, there is a great advantage of the 
 residence within the Diocese, of which neither Bishop nor 
 Clergy ought to be deprived, of a Legal Adviser to both : 
 many questions may thus be settled without litigation ; and 
 much useful advice may be given, disinterested and reliable, 
 in more matters than can be named. I will say but little 
 on the appointment of an Ecclesiastic. He can always be 
 resident ; with him near at hand there need be no delays in 
 the holding of Courts, and the consideration of causes. With 
 him, as one of themselves, there will be neither difficulty nor 
 scruple in the resort to him for advice where they may con- 
 sider it to be required. He, also, as Pars Episcopi, may to 
 the advantage of both parties, be, on fitting occasions, the
 
 2] 
 
 agent, if I may so term him, of both Bishop and Clergy. It 
 may be presumed, that twenty-five or even twenty-seven, 
 qualified for the office, may be found amongst our thirteen 
 thousand ecclesiastical Incumbents ; twenty-seven, who may 
 have added the study of ecclesiastical law to that of 
 theology. There has been but little failure where they have 
 holden the office ; and, as I have noticed, from the rarity of 
 appeals, and the still more remarkable rarity of reversals, 
 but little complaint can be made, and no ground, assuredly, 
 for general incompetence. 
 
 A few observations are now requisite on the business to 
 which the jurisdiction of the Consistor}^ Courts is confined. 
 The most prominent part of it is that of faculties as relating 
 to Churches and their appurtenances. In all cases of ordi- 
 nary repair, the interference of the Court is neither needed 
 nor intended ; but in any unusual or essential changes, such 
 as improvement, or restoring, involving any change, or re- 
 building, it is obvious enough that the work cannot be 
 safely or satisfactorily accomplished without due authority, 
 and that what may so materially affect the Parishioners as 
 well as the Church should not be enterprized without an 
 adequate inquiry before and with the assent of a competent 
 and responsible authority. The Church is of public interest ; 
 and we are bound to maintain that interest with care and 
 even jealousy ; and to fence it in with every possible safe- 
 guard. This is the intention of the Consistory Courts. They 
 are, or should be, watchful over every proposed change, 
 assuring that even in improvement no interests, public or 
 private, are damaged, and that no innovations should be 
 permitted to exercise either a false ingenuity or a capricious 
 taste : we know the mischiefs which have arisen and which 
 may arise from any such doings ; and experience has shewn 
 me that improvers and restorers, yea, and even architects, 
 do require a restraining power upon them. I am sure that, 
 if the Courts had been invariably applied to, much that we 
 may regret might have been avoided. The Consistory Court
 
 2^ 
 
 enters into a full inquiry ; it acts openly ; it enables all wlio 
 are interested to appear, and to assent or dissent ; if it were 
 otherwise, private, to the detriment of public, interest might 
 prevail, and common rights be disregarded ; and I fear that, 
 if such public inquiry were to be stayed, such would be a 
 very usual case. Heretofore, under the existence of Church 
 rates, the very question of costs, which had to be borne pro- 
 portionately by every one, should have been reason enough 
 for every one who should be under liability to be heard in 
 any such matter. Now that that part of the circumstance 
 has been removed, and that the cost must fall on those only 
 who promote the change or whatever it may be, there is 
 still the right or the interest which every one has in his 
 Church, and in which he ought to be protected ; and even 
 because others find the material means, and may, perhaps 
 naturally, though not reasonably, claim a more commanding 
 voice, even because of this I will say that the general interest 
 and feeling are to be yet more jealously guarded, and care be 
 taken that an undue ownership be not usui-ped ; mere local 
 influence might thus be too powerful, and common and 
 equal rights be disregarded or denied. It is the duty of 
 the Consistory Courts to maintain these rights, and none 
 but public Courts can maintain them ; and, if the authority 
 of these Courts be taken away, or they be destroyed, all 
 such questions being left to less authorized parties, it may 
 and most probably will end in that abuse of power which is 
 always to be looked for in those who are enabled to act less 
 publicly, less formally, and are, therefore, in their own ideas, 
 less responsible. The very knowledge that such a power, as 
 that of these Courts, does exist, and can be applied to, and 
 will act on public principle, and is to be unswayed by per- 
 sonal feeling, and inaccessible to personal influence, will be 
 a wholesome restrainer of even a thought of abuse. Schemes 
 that I have heard of local arbitration, or permission, or 
 what may be rather called connivance, will I trust never 
 be realized. The question, so delicate, so difficult, and so
 
 
 23 
 
 dangerous, of claims to Church seats, is another object of 
 consideration and settlement by the Consistory Courts. It 
 is one of great importance, from the very bitterness it some- 
 times creates, requiring prudence, and kindness too, in the 
 decision ; and we ought to have the ability of saying that 
 an Ecclesiastical Judge will be specially qualified in either 
 respect ; while he adheres to the law in true exposition, he 
 may well be expected so to declare it as to shew the obli- 
 gation of Christian submission, as well as of all avoiding of 
 contentious feeling. But, I may ask who will be satisfied 
 without an actual decision of i-esponsible authority where 
 diflfej-ences do unfortunately arise ? Is this obligation to be 
 thrown on the Bishop ? He can act only on inquiry, and 
 information, that is, he must depend on others for the ground 
 on which he has to form his judgment ; others in whom is 
 no responsibility ; besides which, it is here, as in other cases, 
 to be seen, that such a multiplication of duties will be over- 
 whelming to one who is already too heavily burthened. 
 There is yet a. great question to be considered, reverting 
 to the subject of faculties : it regards the permission to 
 erect monuments, to appropriate ground to individual 
 families for vaults or graves. There may be circumstances 
 in which such privileges are proper, but they ought to have 
 legal limits, and, in consequence, must be subject to some 
 jurisdiction, whether for permission or restraint. The Con- 
 sistory Court is at present this authority ; and, when we 
 consider that the Church and its appurtenances are, strictly 
 speaking, the general property, and that the larger privilege 
 allowed to one is in effect an encroachment on the rights of 
 others, my position will be admitted at once. It may be 
 desirable that this privilege should be granted ; it may 
 happen that it ought to be refused ; in either case there 
 should be a fitting resource. The Minister may object; the 
 Churchwardens may object ; any Parishioner may object. 
 It may be observed that such privilege has often been 
 granted by the local authorities, that is, the Court has
 
 u 
 
 not been applied to. A few words of explanation may 
 be useful. The Court trusts that neither Minister nor 
 Churchwarden, nor others will permit what in itself is 
 wrong, nor any appropriation which may be reasonably 
 objected to. The Rector or Vicar is the more concerned as 
 the quasi owner of the freehold, and also in his more 
 responsible character, and may be presumed to have a 
 higher interest in it, on either account, than any other ; and 
 the Court naturally trusts that he will be careful in any 
 sufferance to which he may be a party. It is usual, and it 
 is natural, where there is an ability, to desire the erection of 
 some memorial to the departed ; hence the multitude of 
 ordinary grave stones, and more costly monuments ; this 
 desire could not be realized, if upon every occasion it would 
 be requisite to apply to the Court, and, as I have said, it 
 trusts to the discretion of the parties I have named. With 
 respect to the more costly monuments, if they encroach too 
 much, the sanction of the Court should be solicited, and 
 opportunity be given for objection. Thus, also, with respect 
 to vaults. We do not quarrel with the desire of relatives 
 to have their resting places as near together as may be ; 
 " Let me be buried in the grave of my father and of my 
 mother," is a holy feeling ; but its due consideration should 
 be given to the general interest : it should never be forgotten 
 that the right of each one is a sacred right, and is entitled 
 to the fullest protection. I should lament, and most 
 sincerely, any impediment placed in the way of monumental 
 erections ; I respect also the other point I have just 
 mentioned ; but appropriations and privileges should have 
 limits ; and there must, in common sense, be an authority 
 to apply to, when any attempt shall be made to overpass 
 them. I may remark that the Regulation Act has made no 
 change in the position of the Churchwardens in relation to 
 the Consistory Court, They yet remain as heretofore ; 
 whether, or in what manner it is intended to interfere with 
 this relation we know not, but it is hardly to be expected
 
 25 
 
 that it will be left untouched. They are the officers of the 
 Court, and they are also the guardians of the interests of the 
 Parish on all matters concerning the Church and its services : 
 all furniture, all things necessary to be provided for the due 
 celebration of the offices of the Church are to be provided 
 by them, — must be provided by them ; or I should rather 
 say, they may be called on or required to provide them ; 
 and it is for the Court to take cognizance of any neglect, or, 
 I may add, any unlawfulness, as to them. The Regulation 
 Act imposes penalties on the Incumbent of a Church, but 
 takes no notice of what may be done by those whose especial 
 duty it is to take care that all things be done " decently 
 and in order." All this is still left to the Court. There is 
 another and a very important duty, connected with the 
 Consistory Courts, yet to be mentioned ; the issuing of 
 sequestrations on the vacancy of a benefice. It is essential, 
 that, on a vacancy, the spiritual charge of the parish should 
 be immediately settled, and also that the temporalities should 
 be secured. To this end the law has directed the Chancellor 
 of the Diocese to issue a writ, appointing competent persons, 
 usually the Churchwardens and a neighbouring Clergyman, 
 to provide, under the direction of the Bishop, for the former, 
 and also to protect the temporalities. It is, or ought to be, 
 the practice of the Churchwardens to give instant notice to 
 both the Bishop and the Chancellor of the vacancy ; without 
 this provision, or in any instance of the neglect of it, great 
 damage might ensue in either respect ; the Parishioners 
 might be deprived of their rightful services, or they might 
 be given carelessly and irregularly ; and an injury in regard 
 to temporalities might be inflicted on the succeeding Incum- 
 bent. I have known this in either case. I repeat such is 
 the duty of the several parties I have mentioned. The 
 Chancellor is bound to issue his writ at once ; there is a just 
 confidence that he will issue it ; if he do not I will say that 
 just complaint will lie against him, for he cannot free himself 
 from his responsibility. Tliis duty lies upon him as Official-
 
 26 
 
 Principal of the Consistory Court ; and we may remark 
 that, being so, great caution in this, as in any other respect 
 ought to be exercised in any dealing with these Courts : it 
 shews how all off-hand measures ought to be avoided, and 
 how care should be taken that important interests, such as 
 those may be, should not be trifled with. We have been, as 
 I have said, during many years past, very unfortunate in 
 ecclesiastial legislation ; and no one deserves blame who 
 presses for more care, and urges a better insight into what 
 is really required, and warns of the further danger which 
 wrong steps may yet occasion. High interests are not to be 
 dealt with on sudden impulse, or without the most searching 
 inquiiy into what may be the results. It is real improve- 
 ment, it is permanency, it is as well the maintenance of 
 what is right as the removal of what is wrong, which it is 
 to be hoped will be the ground on which the Legislature 
 will stand ; and that it will be remembered that change 
 does not necessarily lead to improvement. 
 
 In conclusion, let me not be misunderstood. In all that 
 I have said, I have had no mere view, and been influenced by 
 no mere consideration, of Ecclesiastical Chancellors ; but I 
 have certainly acted on a purpose of maintaining their true 
 and proper character to our Ecclesiastical Courts ; and 
 this, so far as I can see, is a principle which is now in 
 danger. Let this principle be maintained in its thorough- 
 ness, and let professional Lawyers alone be appointed to 
 the ofiice, if you will, and if you can. But let them be 
 such as will be rightly interested in and fairly transact 
 the business of these Courts in person, and with prompti- 
 tude and dispatch ; and here will be found the difficulty 
 should any such expedient be resorted to. I will add, that, 
 except in extraordinary emergency, unavoidable emergency, 
 no such one ought to act as Judge. It seems to me, and has I 
 know so seemed to many others, that a practising Advocate 
 should not act as Judge : there is some little of inconsistency 
 in the Advocate of yesterday and of to-morrow acting as the 

 
 2? 
 
 Judge of to-day ; and I do hope, I do anxiously trust, that 
 the office of Chancellor, of Judge in points of deepest interest, 
 will not be made an appendage of Assize or Quarter Sessions 
 practice. That I feel strongly is natural ; but that I am 
 wedded to a system solely because I occupy a prominent 
 place in it, is not true : it is the principle of the system to 
 which I look ; it is the right of our Church, which has 
 assuredly an equal claim with any other religious body, I 
 wish to uphold; and it is the frittering away of its just 
 means of support, and, above all, the security of its sacred 
 character and vital usefulness, for which I do, and to which 
 I always will, with God's permission, direct my endeavours. 
 The exclusion of Ecclesiastical Chancellors from counselling 
 in episcopal adjudication, which runs through all our proposed 
 measures, is sufficiently ominous. I need not dwell upon it ; 
 while I do understand it. Take care lest it go further than 
 is even intended. If the true service of the Church, and if 
 the true interests of our people demand our retirement, I 
 will cheerfully yield, and pra}^ that all the advantages looked 
 for may be obtained ; but I will not willingly submit to a 
 sacrifice which shall be injurious to the cause and to the 
 duties of it which I have solemnly engaged myself to support 
 and to perform. May God, in His wisdom and goodness, 
 direct our rulers aright, and effect, that, uninfluenced by 
 favour as by fear, they may proceed steadily on a straight- 
 forward path, obtaining to themselves the blessing of His 
 Church, and the gratitude of His people.
 
 CLERGY DISCIPLINE. 
 A CHARGE 
 
 TO THE CLF.RGY OF THE DIOCESE OF CARLISLE, 
 DELIVERED IN MAY, 1865. 
 
 Reverend Brethren, 
 
 Our Church has taught us in terms 
 strong and unraistakeable, the two great quaHfications, on 
 which, under God, the usefulness of its Ministers must 
 depend. In the former of the prayers, directed to be used 
 in the Ember Weeks, it is the language of supplication, 
 " To those which shall be ordained to any holy function, 
 give Thy grace and heavenly benediction, that both by 
 their life and doctrine they may set forth Thy glory, and 
 set forward the salvation of all men." — In the latter, " So 
 replenish them with the truth of Thy doctrine, and endue 
 them with innocency of life, that they may faithfully serve 
 before Thee, to the glory of Thy great name, and the benefit 
 of Thy Holy Church." — In the Litany, " That it may 
 please Thee to illuminate all Bishops, Priests, and Deacons, 
 with true knowledge and understanding of Thy word, and 
 that both by their preaching and living they may set it 
 forth and shew it accordingly." — In the prayer for the 
 Church militant, " Give grace, O heavenly Father, to all 
 Bishops and Curates, that they may both by their life and 
 doctrine set forth Thy true and lively word, and rightly 
 and duly administer Thy Holy Sacraments." And, does 
 not each of the solemn services for the Consecration of
 
 30 
 
 Bishops, and for the Ordination of Priests and of Deacons, 
 breathe the same spirit, and speak to the same effect ? Life 
 and doctrine, — conduct and preaching, — are clearly they by 
 which the way of salvation is to be shewn, under the 
 guiding influence of that Holy Spirit which it is its constant 
 and earnest endeavour to invoke for all who may be enlisted 
 into this its special and most responsible service — conduct, 
 manifested in innocencj^ and righteousness ; and preaching, 
 in the performance of every duty demanded by the minis- 
 terial offices. At this time, when the Church seems to be 
 standing very singularly on trial, the direction of our 
 thoughts to these points not only cannot be out of place, 
 but may very much aid in the work set us to do. Genuine- 
 ness of doctrine, and unexceptionableness of living, are they 
 which nmst distinguish the Minister of Christ's truth, if he 
 would be justified of God and man. He must be learned in 
 the doctrine, and convinced of the integrity of his own 
 sense of it : he must be of innocent life, because the true 
 fruit of the doctrine is holiness; and, it must be evident 
 to all men that this fruit has been produced in himself. 
 " Doctrine" is a word of large signification ; and we cannot 
 but be aware how different conceptions of Gospel-doctrine 
 even, that doctrine which is really single in itself, men have 
 suffered themselves to form. We cannot, also, but be aware 
 of the differences which prevail with respect to the deduc- 
 tions our own Church has drawn from the Scriptures, and 
 the various interpretations which have been given to them. 
 It is a weakness of our nature we may not hope to see 
 remedied in a state of imperfectness, that it should be so ; 
 still, it adds to our difficulties, and stands greatly in the 
 way of our meeting the more glaring errors that may arise. 
 There are errors, we know too well, so militating against 
 our convictions of truth, as to draw us perforce into a direct 
 resistance ; a resistance involving hostility ; and, thus, it 
 becomes a serious question, Who is to judge? The authors 
 of such errors will, undoubtedly, press upon us the disagree-
 
 31 
 
 ments amongst ourselves ; and, although their objection 
 may be of an easy refutation, it will equally give a damaging 
 blow to any decision that may be had, and place incon- 
 veniences in ^^c progress towards it. I have no intention 
 of entering into a disquisition on subjects of doctrine ; and 
 I do but design, in this preliminary remark, to shew the 
 desirableness, yea, the need, of an endeavour on the part of 
 us all to be right in matters of faith, and not to permit 
 pride or conceit to draw us from a godly agreement. We 
 admit the necessity of truth in our confession of faith, and 
 our teaching, and, further, the obligation of " driving 
 away false doctrine." How is this to be done? Assuredly, 
 it is the first and the readiest answer, by being true in 
 doctrine ourselves. Knowledge, and an honest application of 
 it, are the immediately obvious requisites. Whatsoever per- 
 sons obtain admission into our Ministry, not provided and 
 qualified by adequate knowledge, do it a grievous wrong, 
 and peril their own welfare ; and, whoever, having the due 
 knowledge, either pervert it, or neglect the opportunities it 
 gives them, that is, the obligations it imposes on them, do 
 wrong also, and incur a fearful risk. They, the Bishops, to 
 whom the admission into holy orders is entrusted, may pre- 
 vent the first case by " laying hands suddenly on no man," 
 and by " faithfully and wisely making choice of fit persons 
 to serve in the sacred Ministry of God's Church.'' A great 
 charge has been committed to them, and an awful responsi- 
 bility lies on them. The giving of a commission to teach, 
 and to bring into the way of salvation, is, indeed, a responsi- 
 bility we may not doubt deeply felt by every Bishop : the 
 safety of souls lies in the performance of this duty ; and let 
 us hope they have that assurance of it, which shall, with 
 Divine help, lead them rightly, and sei've to the constant 
 supply of well instructed Ministers. In the other part of the 
 question, they cannot be so assured : they cannot dive into 
 the depths of a man's mind ; they cannot judge of the 
 genuineness of his professions ; they cannot sec where he
 
 will be strong, and where he will be weak ; and sad ex- 
 perience has told us that the apparently most hopeful may- 
 be led astray, and that, moreover, the most profound know- 
 ledge does not always avail to maintain in the truth. The 
 pride of knowledge does sometimes, oftentimes, lead into the 
 veriest fallacies, shewing us all, in the strongest light, that our 
 dependence must not be on our own strength. To be satisfied 
 of that other qualification which our Church demands, inno- 
 cency of life in candidates for holy orders, may seem an easier 
 matter. Our goings out and our comings in are of instant 
 intelligence ; and it is generally well understood whether a 
 man be correct or incorrect in his conduct, morally speaking ; 
 and the bishop must receive the prescribed testimony as fact : 
 he must rely upon it for its purpose. Nevertheless, neither 
 is there a certainty here : the heart is deceitful above all 
 things ; and the very correct man of to-day may be otherwise 
 to-morrow. The Bishop accepts as presented to him, with 
 the addition of his own careful inquiry ; trusting that God 
 will direct all to His own just ends, and, in the event of any 
 dissappointment or failure, will look on himself with a gentle 
 eye, not visiting him with his anger for what has not been 
 of his wilful default ; and will consider, that he, like his 
 brethren, is but a weak and short-sighted man, and must 
 depend for acting aright on the Only-Wise and Holy 
 Guidance. I now come to my instant proposal. How are 
 failures in either of these respects to be met ? How is false 
 doctrine to be dealt with ? How, ill personal conduct ? Re- 
 peating, Who is to judge ? It is certain that false doctrine 
 ought not to be endured ; its permitted, unresisted, existence 
 must be injurious to our Christian Church. We are under 
 a strict obligation to withstand it, and to drive it away. It 
 is the solemn question at the ordination of a priest, " Will 
 you be ready, with all faithful diligence, to banish and drive 
 away all erroneous and strange doctrines, contrary to God's 
 Word" — and the same is repeated, at the consecration of a 
 Bishop, with the addition, " and both privately and openly 

 
 33 
 
 to call upon and encourage others to do the same ?" Christian 
 truth calls for this ; and an indifference to truth or falsehood 
 is of natural tendency to drive truth out of the world : but, 
 Christian prudence is likewise to be regarded, and its direc- 
 tions are to be sought and submitted to : it behoves us to be 
 circumspect even in the resistance of error : an unwise 
 method, a weak argument, or an unconsidered action, may be 
 detrimental to its own good cause. In the first place, we 
 must be careful that we ourselves do not depart from what 
 our consciences, under the correcting influence of God's 
 Word, and with supplication for His assisting grace, shall 
 tell us to be the truth ; we must defend it in that best of 
 ways — the maintenance of our people in it by our own teach- 
 ing, and the manifestation of our own convictions ; and if 
 we do by this means defeat the adversary, our success will 
 be the more satisfactory. If however, in the next place, we 
 be compelled to resort to other means, — to a more public re- 
 futation, our proceeding must be marked by prudence ; we 
 must be sure of our ground ; and on every step we take, while 
 we do not shrink from duty, stern as it may be, we must con- 
 tend, or, to speak more properly, plead as the disciples of a 
 merciful and loving Saviour, who came to recover, and 
 not to condemn. If, again, such means fail, we must, in 
 scriptural language, " tell it unto the Church," seeking the 
 expulsion of what is wrong, from rightful authority ; com- 
 passing the casting away of the unworthy member, if he be 
 persistent in his error ; applying to such means as shall 
 relieve ourselves from the offence, and vindicating our faith 
 before that tribunal which the united voice of the spiritual 
 and temporal authorities shall have established for our 
 protection and justification. Our Church has always had 
 tribunals for the trial of such cases. I do not design to 
 enter into any account of their origin ; it would serve to 
 no present useful purpose to do so ; nor will I take any 
 historical view of their proceedings : it may be suflicient 
 to observe, that they have been adjudged, at least in
 
 34 
 
 principle, until later times, adequate to their intention ; 
 and we may add that, if partaking of the imperfectness 
 which must attach to all things of time, they have, in 
 their descent to us, become in some instances, unsuitable 
 to modern notions and practice, they yet contain in them 
 the ability of every safe and reasonable improvement. 
 Changes indeed, they have undergone within no very 
 distant space ; but that those changes have not been 
 altogether improvement the general dissatisfaction testifies. 
 It will be convenient to unite in one argument the case of 
 them in their cognizance of ofiences in matters whether of 
 doctrine or of personal conduct. These are, both of them, 
 of vital concernment to the interests of the Church. The 
 subject of ecclesiastical discipline, more especially as re- 
 garding personal conduct, has long and painfully occupied 
 the public attention : again, and again, has the notice of the 
 Legislature been called to it ; scheme after scheme has been 
 proposed ; and disappointment after disappointment has 
 been experienced. It has seemed as though it were more 
 difficult to deal with the Ministers of our Church than with 
 any other members of the community ; but the fault does 
 not lie with them ; I mean our portion of the Ministry : 
 no obstacle has been ofiered by them : in truth, they have 
 in many instances, submitted to what they disliked, rather 
 than be charged with a contentious spirit ; in the present 
 respect, as well as in other matters, they have stood in 
 patient endurance and expectation, rather than be per- 
 sonally pressing or importunate. They have, besides, as was 
 natural, and as they were entitled, looked to the episcopal 
 body for such proposals of amendment as might be thought 
 advisable ; and whatever did come from thence was always 
 received and considered with a reverential deference. With 
 a body so chosen, so privileged, and so possessed of influence 
 and the power of applying it, it was not too much to hope 
 that every interest of the Clergy should be speedily and 
 adequately cared for ; and it, undoubtedly, was not to be
 
 expected that questions so affecting them and their useful- 
 ness should have been so protracted. We, however, cannot 
 know what difficulties were to be encountered, of themselves 
 or of others, and wdiat impediments they have met with. 
 I must, nevertheless, insist, and with equal openness and 
 respect, that it is not becoming the condition of such a 
 Church establishment as ours to be so pleading grievances, 
 and so calling for correction ; it casts no slight reflection on 
 our rulers in both Church and State. But, not to occupy 
 your time on that point, for it would not help us in our 
 general subject — when the scheme, which ended in the Act 
 of 1840, was propounded, the Clergy submitted ; persuaded 
 as they were for the most part that it would shew itself to 
 be no improvement, they would still let it have its chance, 
 and it is hardly necessary for me to remark to you how it 
 has failed, and how it has increased instead of lessening 
 difficulties. I admit that our Ecclesiastical Courts did call 
 for consideration ; so, from time to time, do all other 
 Courts ; the lapse of time, as I have already intimated, and 
 changes in other institutions, had introduced inconveniences 
 which it would have been wise to remedy, and which might 
 have been remedied if the parties who undertook the matter 
 had been contented with simj)ly endeavouring after what 
 would be useful, and had divested themselves of the vain 
 and mischievous fancy of inventing something new. I will 
 not refer to the removal from these Courts of large 
 portions of their jurisdiction, as the testamentary and matri- 
 monial, further than can be avoided : a passing notice 
 will be sufficient. The Legislature had the fullest right 
 to remove the former ; and I will not dispute the 
 propriety of the removal, though I may doubt the success 
 of it : I must lament the latter, deeply lament it, as 
 the occasion of much and serious evil, and, also, an 
 undue interference with a sacred law — and, I say it with 
 sorrow too, we might have hoped a better resistance of it 
 from our spiritual heads and representatives, Tl^e avoidance
 
 36 
 
 of all unnecessary delay and expense is essential to the 
 proper administration of justice ; and, it is beyond question, 
 that this maxim applies with equal, we might almost say, 
 greater force, in ecclesiastical suits, than in any other ; those 
 suits, I mean, in which the character and integrity of the 
 Clergy are concerned ; for, whatever affects their usefulness, 
 is of interest to the whole community. On this ground, it 
 had been a fair subject of regret that the practice of our 
 Courts, or, rather, the obstacles with which their peculiar 
 method enabled parties to encumber their proceedings, did 
 admit much delay, and create no ordinary cost. But could 
 not these grievances have been remedied without the inven- 
 tion of new tribunals ? Could not our Courts have received 
 authority from the Legislature to amend whatever had 
 become unsuitable to circumstances ? Could they not have 
 been empowered to simplify their proceedings ? I believe 
 that whatever change was desirable might have been effected 
 without encroachment on their jurisdiction. Had they been 
 enabled to adapt themselves more to the usages of some of 
 our other Courts, the conduct of a suit need not have been 
 liable to a charge of either protraction or onerous expense. 
 The reformers of ecclesiastical law did not, as I think, apply 
 to their task with any such view : if they did, they have 
 signally failed. It seems to have been a removal of jurisdic- 
 tion they were endeavouring to compass ; and thus their 
 proposals and their efforts on ecclesiastical discipline ended 
 in the Act to which I have alluded — one of the most extra- 
 ordinary and unconstitutional instances of legislation this 
 country has ever witnessed. It has not diminished, I repeat, 
 but augmented expense ; it has not saved from protraction, 
 but carried it onwards — and, has it ensured the true ends of 
 justice ? A brief glance will give us an answer. Under it, 
 the Bishop is authorized, of his own mere motion, or at the 
 request of any other party, if he think fit, — mark that, if he 
 think fit ; — commencing with the bestowal upon him of an 
 absolute and dispensing power ; constituting him, primarily,
 
 
 37 
 
 a Judge, — to issne a Commission " to five persons, one of 
 whom shall be his Vicar-General, or an Archdeacon, or Rural 
 Dean, within the diocese," the other four not confined to any- 
 class or condition, to inquire into any charge of " offence 
 against the Laws Ecclesiastical" by " any Clerk in holy- 
 orders," or, " concerning whom there may exist scandal or 
 evil report as having offended against the said laws." The 
 power of the Consistory Court is delegated to these Com- 
 missioners, so far as their purposes require. There is all the 
 solemnity of an usual Court of Justice, without the obliga- 
 tion under which all other Law Courts are constituted, the 
 obligation of an oath to do rightly ; there is the compulsory 
 attendance of witnesses ; there is the binding of the witnesses 
 by oath ; there is, or there may be, the publicity of an open 
 court. These Commissioners are called on, ostensibly, to 
 determine whether there be " a prima facie ground" for 
 further proceeding, or not ; if they find in the affirmative, 
 the Bishop may, with the consent of the party accused, give 
 sentence at once ; otherwise a second tribunal is to be erected 
 by him ; a second trial is to take place ; witnesses are to be 
 summoned again. If the party accused shall refuse or neglect 
 to appear and make answer to the articles of accusation, 
 " other than an unqualified admission of the truth thereof, 
 the Bishop shall proceed to hear the cause, with the assistance 
 of three assessors, to be nominated by the Bishop, one of 
 whom shall be an advocate who shall have practised not less 
 than five years in the Court of the Archbishop of the Province, 
 or a Sergeant-at-Law, or a Barrister of not less than seven 
 years' standing, and another shall be the Dean of his 
 Cathedral Church, or of one of his Cathedral Churches, or 
 one of his Archdeacons, or his Chancellor ; the position of 
 the third, as in the previous commission, not being described 
 or limited ; and the Bishop shall pronounce sentence there- 
 upon according to ecclesiastical law." It is the Bishop 
 throughout. He is the accuser : he is the constitutor of the 
 members of the Courts : he is the judge : the assessors are
 
 3H 
 
 but his advisers ; and he may form his sentence on his own 
 opinion, however contrary it may be to theirs. If, however, 
 the Bishop so please, he may, instead of hearing the cause 
 himself, send it by letters of request to the Archbishop of 
 the Province, in which case it will be conducted according to 
 the ordinary rules of his Court. I need not argue on this 
 arrangement : it has been tried, and found faulty : the 
 expenses, more than one Bishop can tell you, are such as 
 almost to forbid prosecution. The power which the Eccle- 
 siastical Courts now exercise of taking oral evidence, has 
 operated as a great relief in the jurisdiction yet remaining 
 to them ; and, if they were to be further assisted by an 
 ability to prevent the delays occasioned by interlocutory 
 questions, there is no doubt that two or three sittings of the 
 Court would be sufficient for any cause. My proposal is, 
 that the jurisdiction of the Courts in ecclesiastical discipline 
 should be restored, with a proviso that any complainant 
 should, as a preliminary step, give security for costs ; and 
 that they should be enabled to simplify proceedings ; and for 
 this purpose I would extend to them the authority given by 
 the thirteenth section of the Church Discipline Act to the 
 Provincial Court : " Provided always, that the Judge of the 
 said Court may and he is hereby authorized and empowered 
 from time to time to make any order or orders of Court for 
 the purpose of expediting such suits or otherwise improving 
 the practice of the said Court, and from time to time to 
 alter and revoke the same : Provided also, that there shall 
 be no appeal from any interlocutory decree or order not 
 having the force or effect of a definite sentence, save by the 
 permission of the Judge of such Court." I do not consider 
 the Bishop, personally, to be the proper Judge. The Court 
 is the Bishop's Court, as our other Courts of Law are the 
 Queen's Courts ; and it is idle to say that one more than the 
 other could preside personally with advanage to justice. 
 Those other duties, which the Bishop must discharge in his 
 own person, would be a hindrance to him, if there were no
 
 31) 
 
 other reason, and would place him, of necessity, in the hands 
 of private and irresponsible advisers. 
 
 An appeal lies to the Archbishop of the Province, and 
 from the Archbishop to the Judicial Committee of Privy- 
 Council. It is worth considering, whether, by agreement of 
 the respective parties, and with consent of the Bishop and 
 Archbishop, the appeal to the Archbishop may be foregone. 
 I think it may. 
 
 I arrive at a point of high importance, and one on 
 which the minds of Clergy and Laity have been greatly 
 agitated and divided — that of the Court of Final Appeal. 
 It is not necessary to travel back over ground gone by, or 
 to take any long view of the question of appeal ; oiu inquiry 
 is not so much into what has been as what is, and what is 
 most to be desired ; thus we shall the more usefully direct 
 ourselves to the Court of Final Appeal as it stands, and 
 consider its adaptation or unadaptation to its purposes ; and, 
 if we find it not adapted, or but partially so, to inquire how 
 it may be amended. We are to bear in mind that the 
 Sovereign is " the supreme governor of the Church within 
 these her dominions," and that " unto her the chief govern- 
 ment of all estates of the realm, whether they be ecclesiastical 
 or civil, doth appertain." Hence it is that our final appeals 
 are to the Sovereign. So when we speak of the appeal to 
 the Judicial Committee of Privy Council, we mean an appeal 
 to her ; the Judicial Committee hear and advise, and the 
 decision, though formed on that advice, is really hers. The 
 Act of Parliament, under which this Committee has been 
 selected, has, in fact, and notwithstanding, restrained the 
 Royal authority by specifying the individuals of whom advice 
 should be taken ; still, as I have said, the decision is that of 
 the Sovereign, and her supremacy is recognized in it all. 
 The constitution of the Committee has been described by 
 the Archbishop of Canterbury in a recent Charge to the 
 Clergy of his Diocese ; and I cannot do better than set it 
 before you in his own words : — " There can be no doubt that
 
 4-0 
 
 the present Court of Appeal in ecclesiastical causes is more 
 unfavourable to the Church than that for which it was the 
 substitute. When all appeals to Eome were forbidden by 
 the 24th of Henry 8, c. 12, A.D. 1533, it was enacted that 
 every cause ecclesiastical should be finally decided in the 
 Archbishop's Court, excepting that where the rights of the 
 King were concerned there should be a final appeal to the 
 Upper House of Convocation. Thus far, then, the last resort 
 in each suit was to a Court composed solely of spiritual per- 
 sons. In the next year a new system was introduced. In the 
 case of every appeal in an ecclesiastical cause, a Eoyal Com- 
 mission under the great seal was to be issued, appointing 
 certain persons to hear and decide the same, no further appeal 
 from their sentence being allowed, except that in extraordinary 
 cases the King would issue a Commission of Eeview to revise 
 the sentence delivered. This was the origin and constitu- 
 tion of the Court of Delegates ; and the power which 
 formerly belonged to the Pope, and with which the Arch- 
 bishop was for a short time invested, thenceforth rested with 
 the Crown. But in the statute constituting the Court of 
 Delegates a proviso was introduced, that when any cause 
 touching the law divine or spiritual learning happened to 
 come in question, then it was to be declared and interpreted 
 by that part of the body politic called the Spiritualty. In 
 consequence of this provision we find no trace of any temporal 
 Peer, or Judge of the common law, being appointed to sit in 
 the Court of Delegates on such a case, until the beginning of 
 the seventeenth century. At a later period the Court used 
 to consist of about an equal number of Bishops, of Judges 
 of common law, and of Civilians, or Doctors in civil or 
 canon law ; and it continued to be the ultimate Court of 
 Appeal till the year 1832. An Act was then passed trans- 
 ferring the final appeal in such cases from the Court of 
 Delegates to the Privy Council. The Privy Council, how- 
 ever, was before long found to be a body too large to 
 constitute a proper tribunal for these purposes, and a statute
 
 41 
 
 was passed in the following year, 1833, creating a Judicial 
 Committee of the Privy Council as the final Court of Appeal 
 in all matters which used to be brought before the Court of 
 Delegates ; but no spiritual persons of the Privy Council 
 were by law appointed members of this Committee. This 
 omission, however, was remedied by the Church Discipline 
 Act of 1840, which provided that when any cause, com- 
 menced under this Act, should come before the Judicial 
 Committee of the Privy Council, every Archbishop and 
 Bishop of the United Church of England and Ireland who 
 is a Privy Councillor should be a member of the Judicial 
 Committee of the Privy Council for that purpose." It is 
 the question, " Is this tribunal sufficiently protective of the 
 interests of the Church ? Various opinions have been set 
 forth. It is said by one to be altogether wanting ; by 
 another, to be not competent, because it is not entirely 
 spiritual, that is, ecclesiastical, in its composition ; and by 
 another, that the very ecclesiastical element ought to be 
 eliminated, as is the expression. The true circumstance is 
 much overlooked by all parties. It seems to be forgotten 
 that the Committee is a Court of Advice to the Sovereign. 
 I forbear to enter into controversy more than is requisite ; it 
 is more agreeable to the bent of my mind to declare what 
 strikes me as being the best course than to enter into any 
 contentious discussion. I am not satisfied with this Com- 
 mittee, as it is constituted for ecclesiastical purposes. I 
 object to a mere spiritual Court: suspicions of encroachment 
 would be constantly arising, and throwing discredit on its 
 proceedings ; and who can say that its decisions would be 
 unprejudiced, and that it would not rather tend to the setting 
 up of new than to the maintenance of now authorized con- 
 struction ? The Cliurch is divided into parties, and the 
 decisions would necessarily be governed by the prevalence in 
 the Court of the one or the other ; and there would be no 
 check on any. The argument applies, qualified Ijy the fact 
 of the Lay element, to its present constitution even ; the
 
 42 
 
 peculiar opinions of the respective members will have their 
 influence, and, as it is not to be expected that they will have 
 that legal intelligence which shall temper a bias, they can 
 but add to difficulty. There is, too, another striking 
 objection. The Lay members of the Committee are not 
 barred by the opinion of the Bishops, even if they be 
 unanimous ; they may decide against it : and, then, where 
 is the confidence of the Church in the decision ? It had 
 been better that the Bishops had given no opinion at all ; 
 the Church will appear, through their very presence, to 
 have sustained a defeat. Again, is the whole body of the 
 Church prepared to be governed by the opinion, unanimous 
 though it may be, of the three individuals who may happen 
 at the time to occupy the sees of Canterbury, York, and 
 London ? For, although other Bishops may be nominated 
 to the Council, it is not likely that the long custom of 
 confining the seats there to those three will ever be inter- 
 fered with. The Church at large has no part or voice 
 in the appointment of its Bishops, and may not always be 
 satisfied of their fitness, and with the motives which have 
 obtained the individual selections ; and, unquestionably, those 
 selections will have no view to the discharge of such a duty as 
 that now under om- consideration. But, if their opinion be 
 adverse to our general feeling, will it not be injurious to the 
 peace and welfare of the Church ? What will be the condition 
 of a house so divided, not merely in theory, be it remembered, 
 but in practical issue ? Lastly, are we to exclude the ecclesi- 
 astical element altogether ? The Committee must have some 
 means of information on any doubts or differences regarding 
 ecclesiastical matters ; some assistance therein must be 
 open to them. Now, looking to the intention of a Court of 
 Appeal, which is to rectify any error into which another 
 Court may have fallen ; considering that ecclesiastical causes 
 have undergone full investigation in their own Courts, and 
 that whatever is simply ecclesiastical has been subjected to a 
 complete investigation before those who are best versed in its 

 
 43 
 
 case ; and further, that the ground of appeal is, that judgment 
 has not been given according to law and evidence, we come 
 to a conclusion that the question is really very limited — 
 limited to this point. The Court of Appeal may, it is true, 
 remit for fiu-ther evidence ; it may direct feigned issues to be 
 tried for its better information ; yet its business is essentially 
 law, with its bearing on evidence. It is not within its pro- 
 vince to determine what is, or what is not, the docti'ine or 
 the discipline of the Church ; that has been already settled ; 
 but whether the matter complained of be or not an offence 
 against the one or the other. It does not, in truth, or at 
 least usually, require the instruction of an ecclesiastical 
 person on that point. At the same time, while, as we have 
 seen, the Committee is complete, as the adviser of the 
 Crown, without the ecclesiastical element, and while it must 
 be confessed that the omission of it, as a component part, 
 would appear to prevent the Church from being unduly com- 
 promised, it is desirable that the Committee should be 
 enabled to resort to some quarter specially on behalf of the 
 Church ; and to this end, I propose that it should be em- 
 powered and directed to petition the Sovereign to name some 
 person or persons, learned in ecclesiastical matters, being in 
 holy orders, with whom to take counsel, whenever it shall be 
 deemed requisite. This is a method, seeming to me one that 
 would obviate the existing difficulty ; it would keep the 
 Committee unhampered by contrary judicial opinions ; and 
 even Bishops may differ one with another ; and when they 
 do, which is to be attended to ? It would cease to present 
 the Committee as at variance in itself, and would preserve 
 intact the supremacy of the Crown. This is no mere novelty, 
 — to me no slight recommendation : it is but enabling the 
 Committee, as acting for the Sovereign, to do what it is the 
 Sovereign's acknowledged right, to seek counsel in doubt. 
 
 The most reverend Prelate, to whose Charge I have 
 referred, is of opinion, that the Committee should be com- 
 posed, with a proviso, of Laymen only ; he says, " When we
 
 u 
 
 calmly consider this difficult and important subject, we shall 
 at once perceive that with the theological question, there will 
 always be a question of civil right also mixed up ; and shall 
 acknowledge it to be eminently desirable, if not absolutely 
 necessary that points of law, strictly so called, should be 
 decided by those who have been thoroughly conversant with 
 the principles which ought to guide such decisions. But 
 where points of doctrine are involved, it is equally reasonable 
 that the legal members of the Court should have the 
 Spiritualty to guide them. So, it may be argued, they now 
 have, by the Act of 1840. But the anomaly of the present 
 system is, that whereas the Court of Appeal has to interpret 
 the teaching of the Church (albeit of the majority of that 
 Court some may not even be members of the Church of 
 England, and all are sure to be Laymen), a binding decision 
 may be given as to what is that teaching, though all the 
 ecclesiastical members of it be adverse to that view. The 
 Church thus seems to be compromised by any such judgment 
 (inasmuch as some of its Prelates were sitting on that 
 tribunal), although the voice of the Church in general might 
 be adverse to the decision at which the Court arrived. For 
 my own part, I have always considered that the preferable 
 system would be to have the Court composed of Laymen only ; 
 that any question of doctrine should be submitted to the 
 Bench of Bishops for their opinion ; but that this opinion 
 should not be binding on the Court as to the sentence to 
 be pronounced." I concur to a certain extent with this view ; 
 His Grrace would have no ecclesiastical person upon the 
 Committee ; but he would give it the advantage of ecclesias- 
 tical assistance. So far, I say, I concur ; but I cannot go 
 further with him in his proposition ; that is, I object to the 
 kind and method of the assistance ; and, with great and 
 sincere respect, I prefer the mode I have suggested. The 
 submission of the question to the Bench of Bishops would 
 give rise to much inconvenience ; it would occasion debates, 
 perhaps to be regretted, and might make an exhibition of 

 
 45 
 
 differences we would all of us wish to be avoided ; and the 
 decision of the majority would place the minority, it may be, 
 in the position of parties holding- opinions contrary to the 
 doctrines of the Church ; and it would not only be setting 
 them as a Court over the Court of Appeal, but would be 
 bringing- recognized doctrines again into dispute. It is true 
 it is proposed that the Committee should not be bound by 
 the finding of the Bishops ; but, if they did not so decide, 
 their decision could not have the weight it ought, and would 
 always be regarded as faulty — a doubt would ever rest upon 
 it. Moreover, are we prepared to put the Bishops into this 
 position, for either their own sakes or ours ? The plan I 
 propose would have none of the inconvenience mentioned ; 
 for it would not be a judgment they would seek from the 
 party so assigned to them by the Sovereign, but a testimony 
 on behalf of the Church, which they would weigh and receive 
 in aid of their own deliberations ; nor would it be what 
 might be called a standing Court, qualified or not qualified 
 to advise or inform on the particular case, but what would be 
 sought out as specially adapted to it. In truth, the proposal 
 of His Grrace would be to remit the question to the Upper 
 Houses of the Convocation, and what would the Lower 
 Houses say to that ? I deprecate all such discussion before 
 either of them. The Church would be no gainer : I conceive 
 its doctrines to be settled in its Liturgy and its Articles ; 
 and the only question as to doctrine for the Committee is, 
 how the subject on which it is called on to decide affects it. 
 Let us be careful lest we provoke a dangerous jealousy, 
 raising dissensions and conflicts it may not be easy either to 
 allay or pass through without damage. With the help I 
 have named, the Committee must be regarded as adequate to 
 its purpose. Indeed, I look on it, as a Court, to be of the 
 highest competency : it has been formed with no ordinary 
 wisdom, and ought to be trusted ; and it will be trusted, 
 while it confines itself to the matter legitimately before it, 
 avoiding all unnecessary disquisitions, and not falling into
 
 46 
 
 that mistake, which is not without example, of prefacing a 
 judgment with observations that may bear an injurious con- 
 struction ; but establishing itself, in theological and ecclesi- 
 astical questions, on the principle that the Holy Scriptures 
 are true in all they propound, that the doctrines of the 
 Church are definite, and that its law is precise. The temporal 
 head cannot alter the profession of faith : it does not affect 
 any such power, its authority consisting in the maintenance 
 of the faith as professed ; it is for it to oversee, and it is to 
 judge of the performance or non-performance of the duties 
 allotted and undertaken. Neither have the Ministers of the 
 Church any power of alteration : they are to minister as they 
 have received, and in what they are authorized. The glory 
 of our land is our Church — our Church in its connection 
 with the temporal government. Our kings are its nursing 
 fathers, and our queens its nursing mothers. May the 
 Providence of Grod ever continue the blessing to us I 
 
 I have addressed you on one only of the many subjects 
 which now press upon us in relation to the Church ; and it 
 may be more useful so to confine ourselves, than to wander 
 over the large field of inquiry that lies open to us. The 
 subject I have chosen has a great importance, both from its 
 direct bearing on the constitution and character of the 
 Church, and the prominence, which, by a general consent, 
 has been given to it. My observations have, of necessity, 
 been concise ; the occasion does not warrant a very lengthened 
 discussion, and much that I may have failed to urge will, doubt- 
 less, have suggested itself to you. It belongs to the position 
 I occupy to set my views plainly before you, and to invite 
 your further deliberate consideration of them. The subject 
 certainly is one on which we cannot be either too informed 
 or too guarded. We must be prudent in all our proceedings 
 upon it, well assured that they are founded in the strictness 
 of right. We have to contend for the security of the Church, 
 not as for our own personal authority, or influence, or 
 advantage, — not for what would serve us, but for what would
 
 47 
 
 serve it. We are servants, not masters — servants of Christ, 
 and for His and His work's sake, servants of our brethren 
 also. To our teaching-, to our watchfulness, to our living, 
 they are to look as guides to themselves ; and if we 
 have not both sufficiency and soundness of doctrine and 
 innocency of life to present, we shall be doing them a 
 wrong ; and whatever may be our idea of the various schemes 
 of ecclesiastical policy, and however we may differ with one 
 another in respect of it, we cannot mistake those obligations, 
 we cannot misunderstand the admonitions to them with which 
 the Scriptures abound, nor can we swerve from them without 
 the consciousness of guilt before God. Upon whom is it 
 so bounden to search the Scriptures and to ascertain the 
 truth, and to adhere to it ? upon whom so bounden to 
 cultivate holiness and to walk uprightly ? upon whom to be 
 living examples of the power of Grod ? The evils to result 
 from an unfaithful, an ignorant, or an undiligent Ministry 
 are fearful — are indescribable ; the thought of the souls that 
 have been lost, and might have been saved, is overwhelming. 
 It is too fearful a picture to dwell on ; and one, I pray none 
 of you may ever realize. Yet, may not argument be drawn 
 from hence of the requirements in a Minister of Christ? 
 May we not, and ought we not, to exhort one another to the 
 performance of the duties of each one's station, to the fulness 
 of the grace and power God has given ? And, does it not 
 justify us in our endeavour to labour after that means by 
 which unfitness may be prevented, and unsoundness or other 
 unworthiness be put away from us? and that we should 
 present all help and furtherance to maintain our Christian 
 fabric entire ? The age is one of inquiry ; and, unhappily, 
 more than that : inquiry in a proper spirit we would not 
 resist, knowing it must lead to an increased persuasion of 
 the truth. There is, however, a dangerous spirit abroad ; 
 not a spirit of fair inquiry in an informed mind, and with 
 an upright heart ; but a spirit of pride and of vanity, 
 causing men to seek to be " wise above that which is
 
 48 
 
 written," and nnsubmissive to the word and counsels of Grod. 
 Here is a battle-field on wbich we must enter, and in which 
 our fidelity and our courage are to be proved. Let " Grod 
 and His truth" be our watchword ; and may He grant us the 
 strength for the combat, and so carry us through it as to 
 secure the salvation both of ourselves and of those whom He 
 has given to our charge !
 
 PROPOSAL. 
 A BI LL 
 
 INTITULED " AN ACT FOR CLERGY DISCIPLINE.' 
 
 I. Whereas the Manner of proceeding in Causes for the 
 Correction of Clerks in Holy Orders requires Amendment : 
 Be it enacted by the Queen's Most Excellent Majesty, by 
 and with the Advice and Consent of the Lords Spiritual 
 and Temporal, and Commons, in this present Parliament 
 assembled, and by the Authority of the same. That an Act 
 passed in the Third and Fourth Year of Her present 
 Majesty, intituled " An Act for better enforcing Church 
 Discipline," be and is hereby repealed. 
 
 II. And be it enacted. That an Act passed in the First 
 Year of the Reign of King Henry the Seventh, intituled 
 " An Act for Bishops to punish Priests and other Religious 
 Men for dishonest lives," repealed by the Act aforesaid 
 hereby repealed, shall be and continue to be repealed. 
 
 III. And be it enacted, That, unless it shall otherwise 
 appear from the Context, the Term "Preferment," when 
 used in this Act, shall be construed to comprehend every 
 Deanery, Archdeaconry, Prebend, Canonry, Office of Minor 
 Canon, Priest Vicar, or Vicar Choral in Holy Orders, and 
 every Precentorship, Treasurership, Sub-Deanery, Chancel- 
 lorship of the Church, and other Dignity and Office in 
 any Cathedral or Collegiate Church, and every Mastership, 
 Wardenship, and Fellowship in every Collegiate Church, and 
 all Benefices with Cure of Souls, comprehending therein all
 
 50 
 
 Parishes, Perpetual Curacies, Donatives, Endowed Public 
 Chapels, Parochial Chapelries, and Chapelries or Districts 
 belonging or reputed to belong, or annexed or reputed to 
 be annexed, to any Church or Chapel, and every Curacy, 
 Lectureship, Preachership, Office, or Place which requires 
 the Discharge of any Spiritual Duty, and whether the same 
 be or be not within any exempt or peculiar Jurisdiction, and 
 also all Sinecure Eectories, holden by Spiritual Persons as 
 such ; and the Word " Bishop," when used in this Act, shall 
 be construed to comprehend " Archbishop" ; and the Word 
 " Diocese," when used in this Act, shall be construed to 
 comprehend all Places to which the Jurisdiction of any 
 Bishop extends under and for the Purposes of an Act passed 
 in the Second Year of Her present Majesty, intituled " An 
 Act to abridge the holding of Benefices in Plurality, and to 
 make better Provision for the Residence of the Clergy" ; 
 and the words "Clerk in Holy Orders" shall comprehend 
 " Priest and Deacon." 
 
 IV. And be it enacted that in every Case of any Clerk 
 in Holy Orders, of the Church of England, who may be 
 charged with any Offence against the Laws Ecclesiastical, or 
 who shall have been convicted of any Felony or of any 
 Misdemeanour, wheresoever convicted within Her Majesty's 
 Dominions, subjecting to other than a Pecimiary Penalty, 
 and to whom Her Majesty's Free Pardon under the Gfreat 
 Seal shall not have been granted, it shall be lawful for the 
 Bishop of any Diocese within which such Clerk shall be 
 beneficed or licensed, or for any other Person having know- 
 ledge thereof, to apply to the Consistory Court of the said 
 Diocese, notwithstanding the Offence shall have been com- 
 mitted or alleged to have been committed within any other 
 Diocese, for a Citation to the Party so charged, and which 
 Citation the Judge of the said Court is hereby directed to 
 issue forthwith, summoning the said Party so charged, to 
 shew Cause at the holding of the said Court next ensuing to 
 the Issue of the said Citation, provided such holding of the
 
 51 
 
 said Court be not within Thirty Days from the Service of 
 the said Citation, and, if otherwise, at the Court which shall 
 be so holden as to give at least the space of Thirty Days 
 from the Day of the Service of the said Citation to the Day 
 of the holding of the said Court, exclusively of the Day of 
 such Service, and the Day of such holding, against Articles 
 setting forth such alleged Offence, or such Conviction : Pro- 
 vided always, that, where the Party, so applying for the 
 said Citation, be other than the Bishop of the Diocese, 
 Security for Costs be taken to the Satisfaction of the Judge 
 of the said Court, previously to the issuing of the said 
 Citation. 
 
 V. And be it enacted. That the Bishop, or other Party 
 as aforesaid, shall. Twenty Days at the least before the holding 
 of the said Court, exclusively of the Day of the holding of 
 the Court, and of the Day of Filing, file, in the Eegistry of 
 the said Court, Articles setting forth the alleged Offence, or 
 the Conviction, as the Case may be, approved and signed by 
 an Advocate practising in Doctors Commons. 
 
 VI. And be it enacted. That a Copy of the Articles so 
 filed shall be forthwith, that is, not later than the Day 
 next following such Filing, served on the Party accused, 
 by personally delivering the same to him, or by leaving 
 the same at the Eesidence House of any Preferment holden 
 by him, or, if there be no such Eesidence House, then at 
 his usual or last-known Eesidence : and it shall not be 
 lawful to proceed on any such Articles until after the 
 Expiration of Fourteen Days after the Day on wliich such 
 Copy shall have been so served. 
 
 VII. And be it enacted. That, except as hereinafter 
 provided, at the Court next following the Expiration of 
 Fourteen Days as aforesaid, the Party accused shall appear, 
 and make and file his Answer in Writing, and shew Cause 
 against the said Articles. 
 
 VIII. And be it enacted, That, if it shall seem fit to the 
 Judge of the same Court, on the Application of either the
 
 52 
 
 Party complaining or the Party accused, to adjourn the 
 Hearing, it shall be lawful for the said Judge to adjourn for 
 such purpose, so that the Adjourned Court be holden within 
 Thirty Days after such Adjournment. 
 
 IX. And be it enacted. That any Notice and Requisition 
 to be given to any Witness in the Cause shall be served on 
 the Party to whom the same respectively relate in the same 
 manner as is hereby directed with respect to the Service of a 
 Copy of Articles on the Party accused. 
 
 X. And be it enacted, That, if the Party accused shall 
 refuse or neglect to appear and make answer, and shew Cause 
 against the said Articles, it shall be lawful for the said 
 Judge to receive Evidence, and give Sentence thereon, not- 
 withstanding such Non-Appearance. 
 
 XI. And be it enacted. That all Witnesses in such Cause 
 shall be examined orally in Court. 
 
 XII. And be it enacted. That where the Charge is a 
 Conviction in a Criminal Com-t, a Copy of the Record in the 
 Case, duly attested, shall be deemed and taken to be sufficient 
 Evidence. 
 
 XIII. And be it enacted. That the Free Pardon of Her 
 Majesty under the Grreat Seal shall, at any Time pending 
 the Proceedings, terminate any Suit on Criminal Con- 
 viction. 
 
 XIV. And be it enacted. That the Judge of the said 
 Court may, and he is hereby authorized and empowered from 
 Time to Time to make any Order or Orders of Court for 
 the Purpose of expediting such Suits, or otherwise improving 
 the Practice of the said Court, and from Time to Time to 
 alter and revoke the same : Provided, also, that there shall 
 be no Appeal from any Interlocutory Decree or Order, not 
 having the Force or Effect of a Definitive Sentence : Pro- 
 vided, also, that such Order or Orders shall be in accordance 
 with and under the Authority of Rules of Court, to be 
 drawn up by the Dean of the Arches, the Chancellor of the 
 Province of York^ and the Chancellor of the Diocese of
 
 53 
 
 London ; and which Rules they, the said Dean and Chan- 
 cellors, are hereby directed and empowered to draw up. 
 
 XV. And be it enacted, That every Suit against any 
 Clerk in Holy Orders shall be commenced within Three 
 Years after the alleged Commission of the Offence in respect 
 of which the Suit shall be instituted, and not afterwards : 
 Provided always. That whenever any such Suit shall be 
 brought in respect of an Offence for which a Conviction 
 shall have been obtained in any Criminal Court, such Suit 
 may be brought against the Party convicted at any Time 
 within Six Calendar Months after such Conviction, although 
 more than Three Years shall have elapsed since the Com- 
 mission of the Offence in respect of which such Suit shall 
 have been so brought. 
 
 XVI. And be it enacted. That in any Case, otherwise 
 than where Sentence of Deprivation or Deposition may be 
 incurred, it shall be lawful for any Bishop within whose 
 Jurisdiction any Preferment of any Party accused may be 
 situated, on the Submission of such Party rendered under 
 his Hand in Writing, after the Filing of Articles, and 
 before any Answer thereto, and on Payment of Costs, to 
 grant to such Party a Licence of Non-Residence, not exceed- 
 ing Three Years from the Date thereof, in the Body of which 
 Licence it shall be stated to have been granted " In pur- 
 suance of the Provisions of the ' Act for Clergy Discipline,' " 
 and that such Licence, except as hereinafter directed, shall 
 be a Bar to any Prosecution for the Offence as alleged : 
 Provided always, That Copies of such Licence, with the 
 Reason thereof, and a Copy of the Articles, shall within Ten 
 Days of the Grant of it, be transmitted to the Archbishop 
 of the Province, and the Lord President of Her Majesty's 
 Privy Council ; and that it shall be lawful for such Arch- 
 bishop, or Lord President, within Fifteen Days from the 
 Receipt thereof, to dissent from the Grant of the said 
 Licence, and to direct the Suit to proceed. 
 
 XVII. And be it enacted. That in every Case, whether
 
 of Suspension by Sentence of the Judge of the Court, or o^ 
 Submission, as aforesaid, on the Part of the Accused, it shall 
 be lawful for the Bishop of the Diocese, within which any 
 Preferment of such Party shall be situated, and he is hereby 
 required, to nominate and License a Curate or Curates, or 
 such other duly qualified Substitute, as the Case may require, 
 and to assign such Stipend or Stipends as may be assigned 
 by Law to the Curate or Curates of any Non-Eesident Incum- 
 bent, or any Stipend or Stipends to the amount of one-half 
 in excess thereof, or where no such Stipend is or shall be 
 assigned by Law, as to the said Bishop shall seem just and 
 reasonable : Saving herein any Statutable or other Legal 
 Eights of Cathedral and Collegiate Bodies in the Arrange- 
 ment of and Eemuneration for, the Performance of Divine 
 Services in their Cathedral and Collegiate Churches. 
 
 XVIII. And be it enacted. That any Clerk in Holy 
 Orders, suspended or licensed as aforesaid, shall not be 
 permitted to resume the Performance of the Services of his 
 Church, before presenting to the Bishop a Testimonial under 
 the Hands of Three Beneficed Clergymen, countersigned as 
 to the Credibility of such by the Bishop of the Diocese 
 within which their Benefices may be situated, if such Bene- 
 fices be within any other Diocese than of the Bishop as 
 aforesaid, of such Clerk having been of sober Life and Con- 
 versation, and otherwise qualified, according to the usual 
 Form and Substance of Testimonials required by Bishops in 
 order to Institution, Collation, or Licence, of Clerks in Holy 
 Orders, either during the Term of such Suspension, or by 
 the Space of Three Years immediately succeeding, as the 
 case may be ; such Testimonial being subscribed, and stated 
 to be subscribed, by the Parties thereto, in the presence of 
 each other, and of the Archdeacon, or his lawful Substitute : 
 and that thereupon the Licence to any Curate or Curates 
 as aforesaid, shall cease and be void. 
 
 XIX. And be it enacted, That the Bishop shall transmit, 
 or cause to be transmitted, to the Bishop of every Diocese
 
 55 
 
 within England and Wales, a Notice of the Suspension or 
 Licence, as aforesaid, of any Clerk in Holy Orders. 
 
 XX. And be it enacted, That no Clerk in Holy Orders, 
 suspended or licensed as aforesaid, shall, under Pain of 
 Penalties of Misdemeanour, perform, or assist in the Per- 
 formance of, the Service of any Church or Chapel, or other 
 Place licensed for the Performance of Divine Service, accord- 
 ing to the rites, ceremonies, and usage of the Church of 
 England, during the Term of such Suspension or Licence, 
 and until the Presentation to the Bishop of a Testimonial as 
 herein before directed. 
 
 XXI. And be it enacted. That when any Clerk in Holy 
 Orders shall be sentenced to Imprisonment for any Offence 
 by any Criminal Court, and no Suit be instituted in respect 
 thereof in the Consistory Court, he shall not be liable to the 
 Penalties of Non-Residence during the Term of such imprison- 
 ment : Provided, That in any such case the Bishop shall 
 nominate a Curate or Curates, or other Substitute, and assign 
 a Stipend or Stipends, as heretofore provided in Cases of 
 Submission or Suspension. 
 
 XXII. And be it enacted. That nothing in this Act con- 
 tained shall prevent or be construed to prevent any Bishop 
 from remitting, as he has been accustomed to remit, any Case 
 by Letters of Request to the Archbishop of the Province : 
 Provided always, That such Suit, by such Letters of Request, 
 shall be instituted and conducted in the Court of the said 
 Archbishops as is here enacted and provided in the Consistory 
 Court of the Bishop. 
 
 XXIII. And be it enacted, That it shall be lawful for any 
 Party who shall deem himself to be aggrieved by any Sentence 
 pronounced against him in the Consistory Court of the Bishop, 
 to appeal to the Archbishop of the Province ; and such 
 Appeal shall be heard before the Judge of the Coiurt of the 
 Archbishop ; Notice of such Appeal being given according to 
 the Rule of the Consistory Court ; and the said Appeal shall 
 be proceeded with in the said Court of Appeal, in the same
 
 Olj 
 
 Manner as m this Act provided for Suits in the Consistory 
 Court of the Diocese ; and further Appeal, according to the 
 present Form and Condition of Appeal, may be made to the 
 Queen in Council to be heard before the Judicial Committee 
 of Privy Council. 
 
 XXIV. And be it enacted. That with Consent of the 
 Archbishop and Bishop, on the joint Application of the 
 Parties in the Case, the Appeal to the Court of the Archbishop 
 may be foregone ; and an Appeal be carried direct from the 
 Consistory Court of the Diocese to the Judicial Committee of 
 Privy Council. 
 
 XXV. And be it enacted. That, for the purposes of this 
 Act, it shall be lawful for Her Majesty, on the Application 
 of the Members of the said Judicial Committee, to call in 
 Two or more Persons in Holy Orders, learned in Theology and 
 Ecclesiastical Law, to inform and advise on such Points as 
 they shall deem expedient on any Matter of Appeal : Provided 
 always, That such Persons so called in, shall have no Vote in 
 the Decision of the Case, even though they, any or either of 
 them, may be a Member or Members of Her Majesty's Privy 
 Council. 
 
 XXVI. And be it enacted. That, in any Case, where the 
 Judge shall give Sentence of Suspension with Costs against 
 the Party accused, it shall be lawful for such Judge, if it 
 shall appear to him that such Party so sentenced, shall not 
 be possessed of other Means of Payment of Costs, or shall 
 evade Payment of them, to issue Sequestration against any 
 Benefice of such Party within his Jurisdiction ; and, where 
 the Benefice of such Party shall be within the Jurisdiction of 
 any other Consistory Court, the Judge of such other Court 
 shall on Certificate from such first-named Judge, issue 
 Sequestration against such Benefice ; and which shall continue 
 until the whole Costs be defrayed : Provided always. That it 
 shall be lawful for such Judges respectively to allow, for the 
 Maintenance of the Party so suspended, such Portion of the 
 Income of the Benefice as shall seem fit.
 
 Sf 
 
 XXVII. And be it enacted, That in any Case, in which 
 Sentence of Deprivation shall be pronounced, and it shall 
 appear, as aforesaid, that the Party deprived with Sentence 
 of Costs, shall not possess the Means of defraying the Costs, 
 the Benefice of which he shall be thus deprived shall be placed 
 under Sequestration, and not be presented to, until such 
 Costs be defrayed from the Eevenues and Profits thereof: 
 Provided always, That no Lapse be incurred for Non-Pre- 
 sentation to such Benefice, unless it shall remain vacant by 
 the Space of Six Calendar Months after the Service on the 
 Patron or Patrons, either personally or at his or their usual 
 or last-known Place of Eesidence of a Certificate (which 
 Certificate the Eegistrar of the Court is hereby directed to 
 give), that such Costs have been fully defrayed, and such 
 Sequestration removed. 
 
 XXVIII. And be it enacted. That no Sentence of De- 
 privation shall be pronounced by the Judge, but in the 
 presence of Three Beneficed Clergymen of the Diocese, to be 
 nominated by the Bishop. 
 
 XXIX. And be it enacted. That no Sentence of Deposition 
 from the Ministry be pronounced but by the Bishop, on the 
 Eequisition of the Judge, or some other Bishop duly 
 authorized by him, or by such Judge in the presence of such 
 Bishop respectively ; and in the presence, also, of Three 
 Beneficed Clergymen of the Diocese, to be nominated by the 
 Bishop, one of whom shall be a Dean or an Archdeacon. 
 
 XXX. And be it enacted. That nothing in this Act con- 
 tained shall be construed to affect any Authority over the 
 Clergy of their respective Provinces or Dioceses which the 
 Archbishops and Bishops of England and Wales may now 
 according to Law exercise personally and without Process in 
 Court. 
 
 XXXI. And be it enacted, That this Act may be amended 
 or repealed by any Act to be passed in this Session of 
 Parliament.
 
 REMAEKS ON THE PUBLIC WORSHIP 
 REGULATION ACT, 
 
 DELIVEEED AT THE CARLISLE DIOCESAN CONFERENCE 
 IN AUGUST LAST. 
 
 My Lord Bishop, — If the measure, which has lately 
 received the sanction of the Legislature, intituled " An 
 Act for the better Administration of the Laws respecting 
 the Regulation of Public "VN^orship," had received that 
 sanction under no engagement of an enlarged consideration 
 of the general subject of Church and Clergy discipline, I 
 should not have undertaken the office proposed to me by 
 your Lordship and the Conference Committee. If it could 
 have been regarded as of final intention, I should rather 
 have taken an independent course, in the reserving to 
 myself the right of remarking upon it more, if I may so 
 say, on my own responsibility. As the matter now stands, 
 we see a distinct engagement that the whole question shall 
 be raised, and, if possible, settled in the next Session of 
 Parliament ; and, what is important as it is significant, 
 this measure itself is, in its very enactment, suspended as 
 to operation until July in next year. We must, therefore, 
 necessarily conclude, that the present provisions may be, 
 in some degree at least, dependent on what shall then be 
 determined ; for it is obvious that all must be resolved into 
 the one question, the great question of dealing with all 
 offences against the laws ecclesiastical. I have, during 
 many years past, endeavoured to draw attention to this 
 subject ; and, at one time, from certain encouragement 
 given to me, but which failed in action, I had strong cause 
 for believing that some success would have followed from
 
 60 
 
 my efforts. I had throughout a very ill opinion of the Act 
 of 1840. Professing to remedy and to simplify, it did 
 but increase difficulties, expenses, and delays, forming no 
 decisive or uniform means for the effecting of its own 
 declared purpose, and presenting no guard against evasion 
 or subterfuge. And it has been amazing to me, I speak 
 with due deference, and with no wish to impute M^rong or 
 carelessness, as of design, in any quarter, that such a ques- 
 tion, affecting both Clergy and Laity, for the interests of 
 the one are closely interwoven with the position and circum- 
 stance of the other, should have been left so long without 
 the called-for reconsideration. I may remind, that this Act 
 of 1840 removed all cognizance of such offences from the 
 Diocesan Courts ; but, from the manner in which late dis- 
 cussions have been conducted, impressions have been made 
 otherwise. The Archbisliops' Courts alone have, so far as 
 Ecclesiastical Courts are in any way implicated, any jurisdic- 
 tion or right- of interference ; these may be set in motion, 
 on the appointment of the Bishop, as Courts in the first 
 instance, as well as Courts of Appeal from the personal (I 
 use the word advisedly) decisions of the Bishop. The Act, 
 on which I have to observe, deals with but one class of 
 offences, those relating to public worship. It is intituled, 
 as I have stated, " An Act for the better Administration of 
 the Laws respecting the Eegulation of Public Worship" — 
 the laws as they are ; it creates none of a new character. 
 Its preamble is also to the like effect : " Whereas it is 
 expedient that in certain cases further regulations should 
 be made for the administration of the laws relating to the 
 performance of Divine Service according to the use of the 
 Church of England." It does not enlighten us as to these 
 laws ; it gives us no practical information how offences 
 against them may be committed, or how avoided ; it rather 
 confesses, or, I should say, its promoters confess, that they 
 do not understand them, or have no conclusive opinion 
 regarding them, from the postponement of the operation of
 
 61 
 
 this Act, and from the awaiting of certain deliberations of 
 Convocation : it may seem, also, in default of further action, 
 to leave the construction of the laws to the discretion of 
 the Administrator, first of the Bishop, there securing no 
 uniformity, and, on appeal, of the Judge appointed under 
 it. It has been conceded, I may say voluntarily avowed, 
 that practices in one particular direction have occasioned 
 this resort to the Legislature ; thus intimating plainly 
 enough that either the laws have been uncertain in their 
 voice, or that no means exist for their effectual enforcement. 
 None of us will deny, that, if they be so defective, or so 
 uncertain, they ought to be amended or explained ; and, 
 we shall, too, as readily admit that they ought to be obeyed, 
 though somewhat repugnant to our feelings individually, or 
 in somewhat of opposition to our own opinions. We have 
 made a compact of obedience to the laws, and, while that 
 compact exists, it must be holden sacred. Yet, surely, 
 before we are made chargeable with an offence against or a 
 disregard of the laws, we are entitled to an intelligible and 
 a full instruction in their relative purpose and effect ; and 
 there, to my mind, is one great faultiness of this measure. 
 It does not understand its own ground. 
 
 I shall best carry out what I have proposed, the setting 
 before the Conference the inadequacy, I will not go so far as 
 to say the result, for it is doubtful to many persons whether 
 there will be any result at all, of this Act. It proclaims " a 
 better administration," and leaves, I repeat, to the tribunals 
 it creates to decide on the nature, or bearing, or character, 
 of the laws whose better administration it seeks. In the 
 first place, it creates the Bishop into a Court of Discretion, 
 of Inquiry, and of Decision. On the representation of 
 certain parties, either an Archdeacon, or a Churchwarden, 
 or three Parishioners, he is to receive and consider the case ; 
 if he deem it frivolous, or unfounded, or likely to be futile, 
 he may dismiss it at once ; he may dismiss it, but it may be 
 immediately renewed by some other parties, the Act giving
 
 62 
 
 neither limitation nor restraint ; making him, in fact, a 
 Judge of Appeal from himself; so that his exemption from 
 the authority of the Archbishop will be of no material 
 advantage to him. Where he shall be of opinion that 
 further proceedings ought not to be taken, he is to state 
 that opinion in writing, and to transmit a copy of it, having 
 first deposited one in the Eegistry of the Diocese, to each of 
 the respective parties ; where he shall decide on fiurther pro- 
 ceedings, he is to offer to the choice of the parties an obli- 
 gation to bind themselves by his decision without appeal; 
 and, on their consent, shall " proceed to hear the matter of 
 the representation in such manner as he shall think fit, and 
 shall pronounce such judgment, and issue such monition (if 
 any) as he may think proper, and no appeal shall lie from 
 such judgment or monition." Here I may remark that the 
 old grievance of interlocutory appeals is let in : at any time 
 after representation made, either of the parties may require 
 the opinion of the Judge, specially appointed under the Act, 
 on any question of law arising in the proceedings. This 
 provision declares the incompetence, I do not use the word 
 offensively, but in a legal sense, of the Bishop, while it 
 assists to the protraction of the case. Care should have been 
 taken that the Com-t of First Instance should, as such, be 
 competent to decide on a question of law with the usual 
 right of appeal ; and then, if bound as he ought to be to 
 give his decision, as also to have heard the case, in open 
 Court, it would generally happen that such care would be 
 taken in the exposition of and acting on the law, as to save 
 all further trouble and expense. There is a provision, which 
 it may be well to notice before I proceed further. It is 
 this : " Provided that no judgment so pronounced by the 
 Bishop shall be considered as finally deciding any question 
 of law so that it may not be again raised by other parties" — 
 by other parties, not by those whom it affected in the former 
 case — however erroneous the judgment may have been in 
 point of law, it may not be disputed. If there be no
 
 03 
 
 agreement for the bearing of the case by tbe Bisbop, the 
 representation is to be sent by him to the Archbishop of the 
 Province ; and the Archbishop is to require the Judge to 
 hear it, on the complaining parties giving secm-ity for costs ; 
 and it is to be heard " at any place within the Diocese or 
 Province, or in London or Westminster." The parties con- 
 cerned will derive but little satisfaction from this erratic 
 enactment. If we were not permitted to conjecture that the 
 ultimate design is to remove all ecclesiastical cases from any 
 cognizance of the Bishop, destroying ecclesiastical right and 
 jurisdiction in name as well as in fact, this amendment, so 
 called, but more properly to be named revolution, in law, 
 would be inexplicable. The Church is in intimate con- 
 nection with the State, or Temporal Government : let not 
 that connection be made subversive of its proper condition 
 and usefulness, its purpose and its character ; let what is due 
 on both sides be well acknowledged and maintained ; and 
 then the connection will continue to be a mutual support 
 and advantage. Though having no wish, and making no 
 pretension to any interference that may be thought undue, 
 with Cathedral and Collegiate bodies, yet, bound as I am to 
 consider the whole purpose of this Act, I cannot pass by its 
 dealing with them unnoticed. It is enacted that the duties 
 " to be performed," in respect of them, " under this Act by 
 the Bishop of the Diocese, shall be performed by the Visitor 
 thereof." This is somewhat obscvu-e. The office of Visitor, 
 and the office of Bishop, are distinct offices : they may be 
 vested in the same person, but they are distinct in operation. 
 An appeal lies from the Bisliop, as Bishop, to the Arch- 
 bishop ; but there is no appeal from the decision of the 
 Visitor. He may be put in motion by the Court of Queen's 
 Bench ; but there all authority over him ceases. This Act 
 gives an appeal from the Visitor to the Judge, without any 
 saving of his authority as Visitor ; serious questions may 
 arise hereon. These bodies, so prominently placed, must 
 have an almost greater anxiety than any other to shew
 
 64 
 
 deference and obedience to the law ; but it ought to be so set 
 out and explained as to admit no mistake, to leave in no 
 doubt, and no ambiguity. 
 
 I have, to go back a little, named the parties, who may 
 complain, or make representation. They are, first, the 
 Archdeacon ; next, a Churchwarden ; then, three Parishioners ; 
 to which I may add, in the case of any Cathedral or Collegiate 
 Church, three inhabitants of the Diocese. A word may be 
 introduced as to the finding of the means for payment of the 
 costs of prosecution. Whence are they to be really derived, 
 and who is to offer himself as secm-ity ? No Archdeacon, and 
 no Churchwarden, will consent to be the public prosecutor, 
 under this heavy responsibility ; and the law forbids, broken 
 as it has notoriously been, the combining of parties, not 
 immediately concerned, for any such purpose. It rightly 
 considers that no individual can stand secure against a 
 powerful combination ; it therefore says there shall be no 
 interference on the part of any who have not a direct 
 interest in the matter. The three Parishioners, or the three 
 inhabitants, may receive help from others in similar position 
 with themselves ; the Churchwarden, acting on behalf of 
 the parish, may also be assisted by any Parishioner or 
 Parishioners ; the Archdeacon must stand alone, on his own 
 resources. He must not seek assistance elsewhere. How, 
 then, can he put himself forward in the execution of this 
 Act ? While he is endeavouring to maintain the law in one 
 respect, he must not subject himself to the charge of breaking 
 it in another. I wish not to be misapprehended. I repeat, 
 and I do so distinctly, advisedly, unequivocally, that a 
 combination to prosecute, other than I have admitted, is an 
 offence against the law of England, as it is also contrary to 
 every feeling of justice. Surely, the facilities the law allows 
 to Churchwardens and others, as complaining parties, are 
 sufficiently disadvantageous to an unfortunate Incumbent 
 without leaving him subject to the overwhelming force of, it 
 may be, a persecuting combination, It is now necessary that
 
 65 
 
 I should state the cases, on which a representation to the 
 Bishop may be made. These are contained in three Articles. 
 The first is, " That in such Church," the Church in relation 
 to which the representation is to be made, " any alteration in 
 or addition to the fabric, ornaments, or furniture thereof, has 
 been made without lawful authority, or that any decoration 
 forbidden by law has been introduced into such Church." It 
 is to be borne in mind that the whole of this is directed 
 against the Incumbent: the Incumbent is the sole party 
 contemplated in this Act. We know very well that alterations 
 and additions cannot be legally made without a licence or 
 faculty from the Consistory Court : that Court is the lawful 
 authority indicated ; and whoever makes any such alteration 
 or addition, is liable to the penalties of the law. It seldom 
 happens, the instances must be very rare indeed, where the 
 Incumbent is thus the agent or offender. Any Churchwarden, 
 or any Parishioner, may stay him ; and the Chm'ch wardens, 
 who are to guard the Church, and to watch over it, and to 
 restrain irregular and unlawful doings by calling in the aid 
 of proper authority, will, if they neglect their duty, be 
 cognizable parties; and the Incumbent may plead their 
 complicity ; but the Churchwardens are not prosecutable 
 imder the Act ; and the Incumbent cannot be disjoined from 
 them. Next, we have mention of ornaments or furniture, 
 " without lawful authority." I take these words to mean the 
 ordinary and necessary furniture from time to time, and 
 ornaments becoming a place of public worship intended to be 
 permanent. The question concerns the meaning of the 
 expression " lawful authority" ; and it is to be remarked that 
 the two words " furniture and ornaments" are brought into 
 the same description or character, and so must be governed 
 by the same rule. The Churchwardens are the " lawful 
 authority" for the providing of the furniture, as they are 
 bound by their office to provide all things convenient and 
 necessary for the performance of the Service, and the ex- 
 pression must be received as recognizing them to be the
 
 66 
 
 lawful authority in either case. The introducing of such 
 " furniture and ornaments" would not be received into the 
 consideration of the Court, unless some illegal character were 
 appended to them. Thus the Incumbent has no liability in 
 respect to them, unless he should, which is not very likely, 
 take upon himself a duty of the Churchwardens. The Article 
 then directs itself against any " decoration forbidden by law"; 
 forbidden by law : the actual forbidding of the law, the 
 decree of the law upon it, must be shewn in order to the 
 creation or exercise of any right of cognizance. Besides, we 
 are not to forget, that in his Deed of Collation or Institution, 
 the Incumbent is " invested," I use the exact words, " with 
 the Grovernment of the Church" ; and thus, in such respect, a 
 certain discretion is granted him. The words must have a 
 meaning. I have stated " ornaments," in the application I 
 have made of them, to imply a permanent character ; but I 
 do not so consider " decorations," and that, therefore, 
 decorations, innocent in themselves, may be introduced for 
 temporary purposes, and on seasonable occasions ; and, if 
 brought, on their account, under legal cognizance, the 
 answer will be, They are not forbidden by law ; and if not 
 forbidden by law, how are they to be brought within the 
 meaning of the Act ? It will be seen that a large power is 
 already possessed by the Churchwardens : but we must not 
 misapprehend it. Furniture, and ornaments of a permanent 
 character, are, we say, to be provided by them ; yet, they have 
 no absolute authority to reject where the Incumbent offers 
 his aid; they may object; they may not remove; and where 
 the Incumbent believes that the Church and its services may 
 be benefited by ornament or furniture of his own or others' 
 providing, and the Churchwardens do object, the decision of 
 the Court is to be sought. A misunderstanding on this 
 point may be hurtful : not only may the Church be wronged 
 by the loss of serviceable gifts, but imseemly and damaging 
 contentions may be given rise to. It is the intention of the 
 law, not to discourage voluntary offerings, but to take care
 
 67 
 
 that nothing inconsistent with the character of the Church, 
 or incongruous or hindering to its services, be brought in. 
 The Second Article is, " That the Incumbent has, within the 
 preceding twelve months, used or permitted to be used in 
 such Chm'ch or Burial Grround any unlawful ornament of the 
 Minister of the Church, or neglected to use any prescribed 
 ornament or vesture." Here, again, the unlawfulness 
 must be expressly shewn and proved. It is to be remem- 
 bered that this is a penal statute ; charges must be 
 distinctly specified, and the grounds of them sub- 
 stantial and proved : it will not admit mere argument 
 or inference. It, likewise, orders the use of the " prescribed 
 ornament or vesture." What are they ? They are gravely 
 and extensively disputed. There is, indeed, a direction in 
 the Book of Common Prayer, which would seem to settle the 
 point. " And here it is to be noted, that such ornaments of 
 the Church and of the Minister thereof, at all times of their 
 ministration, shall be retained, and be in use, as were in 
 this Church of England, by the authority of Parliament, in 
 the second year of the reign of King Edward the Sixth." 
 This equally applies to the ornaments of the Church, one of 
 the subjects of the First Article ; but I have reserved my 
 notice of it until now for the better convenience of dis- 
 cussion. A great question has been raised upon them ; some 
 contending they are and ever must be so hidden in obscurity 
 as to be undiscoverable ; and others, that they are still in 
 real force, and are or may be ascertained. When the 
 framers or promoters of this Act caused it to be declared 
 an offence against the law either to use an unlawful orna- 
 ment, or not to use a " prescribed ornament or vesture," and 
 the difference was so great, it was a bounden duty to declare 
 what was unlawful, and what was prescribed. It might have 
 been thought that the raising of any such point would have 
 endangered the measure ; and far better that the measure 
 should have been endangered than that point be unsettled. 
 There was no need for precipitation, but every reason that
 
 68 
 
 the whole matter should be maturely and fully considered. 
 It is true that the measure was a long time before Parlia- 
 ment, but with no real means for the formation of an advised 
 opinion upon it. The subject was first propounded in a Bill 
 introduced by the Archbishop of Canterbury in the month of 
 April ; but scarcely a vestige of that Bill remains ; and this 
 Act cannot be in any wise called His Grace's measure. An 
 amended Bill was introduced at the instance of the Arch- 
 bishop of York, the character of which was very soon lost. 
 Then the Bill, to which the Lords gave their consent, re- 
 ceived essential changes in the Commons. In all this cir- 
 cumstance, where changes were looked for, and indeed made, 
 from day to day, how could any profitable consideration be 
 given ? The fact is, it was not well considered in the first 
 instance, and hence its whole feature of impracticability. 
 That I have a strong opinion myself, upon as well the force 
 as the intention of the law, I will avow ; but I do not judge 
 it convenient to be more explicit at present. The Third 
 Article is, " That the Incumbent has within the preceding 
 twelve months failed to observe, or to cause to be observed, 
 the directions contained in the Book of Common Prayer, 
 relating to the performance, in such Church or Burial 
 GTround, of the services, rites, and ceremonies ordered by 
 the said Book, or has made or permitted to be made any 
 unlawful addition to, alteration of, or omission from, such 
 services, rites, and ceremonies." The word " unlawful," ap- 
 plied here, admits no question : the directions, as well as 
 the rites, ceremonies, and services, are plain to any honest 
 understanding ; and any addition, alteration, or omission, 
 come immediately under cognizance ; and no defence or 
 excuse can be fairly offered ; and I must add that I cannot 
 conceive how any Minister of our Chm-ch feels justified 
 in any disregard or evasion of this essential Kule. He 
 has entered, voluntarily entered, into a solemn engagement 
 to conform to the Book, the whole Book, of Common 
 Prayer ; and it would almost seem to be a reproach,
 
 69 
 
 amounting to an insult, to suppose that he would not 
 maintain it. 
 
 Time will not permit me to go further ; nor does the 
 purpose of our Conference need it. I have said enough to 
 shew the incompleteness of the Act before us, and its un- 
 adaptation to the necessity, as it has been termed, of passing 
 some such one. The remaining points of it are but con- 
 sequent, and do not call for om* present attention. I will 
 only, in conclusion, entreat, that the law, so far as it can 
 be known, be obeyed : I will entreat that individual wishes 
 yield, where the preservation of peace and unity require it, 
 always provided that conscience be not offended ; insisting, 
 nevertheless, firmly and unalterably, that whoever shall take 
 upon him the arraignment of another, shall be careful to 
 keep himself within due bounds. That thus it may be, 
 I pray Grod to grant : I pray that He may so order all 
 things that om' Church may be made to rest on that its 
 sure foundation. His own Holy Will and Word ; that its 
 usefulness may grow more and more, and its blessings be 
 enlarged ; the gracious influences of the Holy Spirit keeping 
 it in the acceptable acknowledgment of Christ's kingdom, 
 for the glory of Grod, and the salvation of man. 
 
 Caklisle, January, 1875. 
 
 PKINTED AT THE OFFICES OF C. THOKNAM AND SONS, 0AKLI8LE.
 
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