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 SPEECH 
 
 OP THE 
 
 BISHOP OF LONDON, 
 
 IN 
 
 ^f)t l^ouse of Uortrs, 
 
 ON MOVING THE SECOND READING 
 
 OP 
 
 T H E B I L L 
 
 RELATING TO 
 
 APPEALS FKOM THE ECCLESIASTICAL COURTS, 
 
 On MoNDAr, June 3, 1850. 
 
 LONDON: 
 B. FELLOWES, LUDGATE STREET. 
 
 1850. 
 
 7:
 
 LONDON : 
 K. n.\Y, PUTNTER, lillF.AD STRKF.T IIII.I..
 
 PREFACE. 
 
 The subject of the following Speech is of such extreme 
 importance, that I have thought it advisable to put 
 forth a more accurate report of it than any of those 
 which have appeared in the public journals. The 
 main question, upon which it touches, is that of the 
 Royal Supremacy ; that of expediency being only of 
 secondary magnitude; and the ground, which- was 
 taken by the opponents of the Bill under discussion, 
 with reference to the Supremacy, was such as to 
 make it the more necessary that my arguments 
 should be clearly understood. 
 
 I had intended to enter at some length into the 
 question in this preface : but the subject has been 
 so fully and so ably discussed by my excellent friend,
 
 IV PREFACE. 
 
 Mr. Gladstone, in a Letter which he has just pub- 
 Ushed, addressed to me, " On the Royal Supremacy, 
 as it is defined by Reason, History, and the Consti- 
 tution," that I deem it unnecessary to do more 
 than refer my readers to his publication. He has 
 undertaken to prove, and I think has succeeded in 
 proving, 1. That the statutes of the Reformation did 
 not involve an abandonment of the duty of the 
 Church to be the guardian of her Faith. 2. That 
 the present composition of the tribunal of ultimate 
 appeal in spiritual matters is not conformable either 
 to reason, or to the statutes of the Reformation and 
 the spirit of the Constitution as expressed in them. 
 3. That the Royal Supremacy, according to the 
 Constitution, is no bar to the adjustment of the 
 appellate jurisdiction in such a manner, as that it 
 should convey the sense of the Chiu-ch on questions 
 of doctrine. 
 
 The general principles, laid down by Mr. Glad- 
 stone, are those which I have briefly asserted in my 
 Speech, that the powers of the State, in regard to 
 the legislative office of the Church, are powers of 
 restraint; that the jurisdictions united and annexed 

 
 PREFACE. V 
 
 to the Crown are corrective jurisdictions; and that 
 their exercise is subject to the general maxim, that 
 the laws ecclesiastical are to be administered by eccle- 
 siastical judges. 
 
 Mr. Gladstone adduces the authority of Lord Coke, 
 whose testimony in favour of the Church's jurisdic- 
 tion is all the more decisive, as coming from a high 
 prerogative lawyer, and of Erastian tendencies. He 
 states, in passages referred to by Mr. Gladstone, that 
 the 24th Hen. VIH. c. 12. is a great constitutional 
 statute, distinctly marking out the separate provinces 
 of ecclesiastical and civil causes ; 
 
 That the laws ecclesiastical are for the settle- 
 ment of "causes of the law divine, or of spiritual 
 learning;" 
 
 That the laws temporal are "for trial of property 
 of lands and goods, and for the conservation of the 
 people of this realm in unity and peace, without 
 rapine or spoil; " 
 
 That the laws ecclesiastical are necessarily to be 
 administered in ecclesiastical courts, and by ecclesi- 
 astical judges ; as the laws temporal are " admi- 
 nistered, adjudged, and executed by sundry judges
 
 VI PREFACE. 
 
 iind ministers of the other part of the mid bodi/ jyolitic, 
 called the teraporalty ; and both these authorities and 
 jurisdictions do conjoin together in the due adminis- 
 tration of justice, the one to help the other ; " 
 
 That " the Archbishops, Bishops, and their officers. 
 Deans, and other ministers which have spiritual juris- 
 diction," arc "the King's Judges for ecclesiastical 
 purposes ;" 
 
 That the Convocation of the Clergy is a court, of 
 which " the jurisdiction is to deal with heresies and 
 schisms, and other mere spiritual and ecclesiastical 
 causes ; " and " therein they did proceed juxta legem 
 divinam et canones sanctce Ecclesice ;" 
 
 That the purpose of the Reformation statutes, as 
 understood and solemnly expressed by their framers, 
 was to vindicate and restore to the Crown the ancient 
 jurisdiction which it had enjoyed in previous times ; 
 and which ancient jurisdiction extended over all eccle- 
 siastical and spiritual causes. 
 
 It is most important, for the right understanding 
 of the question, to bear in mind, that the Refor- 
 mation statutes alluded to were directed to two 
 objects, the exclusion of the Pope's intrusive juris-
 
 PREFACE. Vll 
 
 diction, and the re-assertion of the Crown's ancient 
 prerogative ; and not to that of claiming for the 
 Crown of this reahn any authority in matters merely 
 spiritual, or even in matters ecclesiastical, which did 
 not belong to it of ancient right or custom. If 
 Queen EHzabeth asserted for herself a greater stretch 
 of authority in Church matters, and met with no 
 resistance from those, who gladly took shelter under 
 the royal prerogative from the imminent dangers 
 which then threatened them in the possible re-esta- 
 blishment of the papal supremacy, tliat in no way 
 affects the argument drawn from the intentions of 
 the framers of those laws, which were designed to 
 transfer from the Pope to the Sovereign so much of 
 ecclesiastical authority as had anciently belonged to 
 the one, but had been usurped by the other; so 
 much, that is, as gave to the Sovereign full power of 
 external and co-active jurisdiction, and no more. 
 
 For a full and exact discussion of the whole ques- 
 tion, I would again direct my reader to Mr. Glad- 
 stone's valuable Letter ; and I will conclude with the 
 words of Hooker, who wrote at a time when these 
 subjects were much considered, and when their prac-
 
 Vlll PREFACE. 
 
 tical bearing upon the Church was felt, as it now 
 again is felt, to be of the highest importance. 
 
 " It is neither permitted," he says, " to Prelate nor 
 Prince, to judge and determine at their own dis- 
 cretion, but law hath prescribed what both shall do. 
 What power the King hath, he hath it by law ; the 
 bounds and limits of it are known. The entire 
 community giveth general order by law, how all 
 things publicly are to be done ; and the King, as head 
 thereof, the highest in authority over all, causeth ac- 
 cording to the same law every particular to be framed 
 and ordered thereby." . . . ** All men are not for 
 all things sufficient ; and therefore public affairs being 
 divided, such persons must be authorized judges in 
 each kind as common reason may presume to be 
 most fit; which cannot of kings and princes ordinarily 
 he presumed in causes merely ecclesiastical ; so that 
 even common sense doth rather adjudge this burden 
 unto other men.''* 
 
 * Eccl. Pol. vol. iii. pp. 555, & 549, ed. Keble.
 
 A SPEECH. 
 
 I RISE to move your Lordships to give a second 
 reading to a Bill for Amending the Law with refer- 
 ence to the administration of justice in Her Majesty's 
 Privy Council in appeal from the Ecclesiastical Courts ; 
 and I do so, under an almost overpowering sense of 
 the difficulty of the task which I have undertaken, 
 and of my own inability to perform it, in a manner 
 at all adequate to its importance — its importance, my 
 Lords, with reference to the consequences which are 
 likely to follow from your Lordships' reception, or 
 rejection of the measure. My Lords, I am not apt 
 to indulge overstrained or extravagant feelings of hope 
 or fear, nor am I accustomed to employ exaggerated 
 language in expressing them ; but I do assure your 
 Lordships, in the words of truth and soberness, that 1 
 believe it to be impossible to over-rate the momentous 
 consequence of the issues which hang upon that 
 alternative. I will not now describe them more par- 
 ticularly. It is enough to say that they involve not 
 only the peace, but the integrity of the Church of this
 
 empire. I allude to them now, ouly for the purpose of 
 showing to jour Lordships why it is that I approach 
 this question with fear and trembHng, under a painful 
 apprehension, lest the sacred and important interests 
 which it involves, should suffer detriment from the 
 injudicious arguments, or feeble reasoning of its advo- 
 cate. But, my Lords, I feel at the same time that 
 just measure of confidence, which ought to be in- 
 spired by a settled conviction, that the cause which 
 I have undertaken to plead, is substantially the cause 
 of justice and truth; and that whatever may be the 
 measure of success which "will now attend it, it is a 
 cause which must ultimately prevail. We contend, 
 my Lords, for a great fundamental principle. We 
 may possibly suffer a disappointment ; but we shall 
 not be disheartened ; we may be perplexed, but not 
 in despair. 
 
 My Lords, I am so deeply impressed with the 
 importance of the duty which I have to perform, and 
 so fearful of omitting any argument which might be 
 urged in favour of the measure which I desire to 
 recommend, that I may perhaps bo led to trespass 
 upon your Lordships' patience at somewhat greater 
 length than it is my wont to do. If such should be 
 the case, I must crave your Lordships' indulgence. 
 For my own sake I will study all practicable brevity ; 
 for it is not without difiiculty that I now stand to 
 address your Lordships. But if I should be forced 
 to occupy a larger portion of your time than it may
 
 be convenient or agreeable to your Lordships to devote 
 to me, I must intreat your indulgence, in consideration 
 both of the great importance of the subject, and of 
 the peculiar circumstances under which I address you. 
 For, my Lords, it is a difficulty of a peculiar kind 
 which embarrasses me. I must state it fairly and 
 frankly, and I hope so to state it as not to be want- 
 ing in the respect due to your Lordships, nor so as 
 to give any just cause of offence. But the truth is, 
 my Lords, that the subject which I have to bring 
 before you is one with which your Lordships are not 
 so familiar as I could wish you were. 
 
 I have to invite your Lordships' most serious and 
 earnest consideration of a question, which, I fear, is 
 far less interesting to you than the ordinary topics 
 which engage yom' attention in this House. I have 
 to awaken, if possible, a new set of thoughts and 
 feelings, and to enlist them in favour of a measure 
 which has none of the attractions of party interests, or 
 political affections. I have to persuade you, (would 
 I could hope to succeed in the attempt ! ) to lay 
 aside for a time your every-day habits of thought, 
 as relating merely to the concerns of civil govern- 
 ment; and to think and act in yoiu- character of 
 members of that great spiritual polity, to which 
 you are bound by ties of duty as sacred and 
 as stringent as those by which we, who are its 
 ministers, are bound ; although the duties which 
 you owe to it be not all of them the same in
 
 kind. But, my Lords, let me not be misunderstood. 
 Do not imagine that I desire you to put out of sight, 
 for an instant, while legislating for the Church, its 
 relations to the State, nor the mutual claims and duties 
 of the two. On the contrary, it is because 1 hold it 
 to be essential to the well-being of the State, that 
 the Church should be enabled to discharge its own 
 proper functions without let or hindrance, and that 
 the one should forbear from invading the legiti- 
 mate province of the other, that I now earnestly 
 entreat your Lordships to direct your attention, more 
 closely and thoughtfully than you are commonly re- 
 ([uired to do, to the peculiar nature of those functions — 
 the functions which belong to the Church, as the 
 keeper and teacher of God's Truth. 
 
 Before I proceed to submit to your Lordships 
 some reasons in favour of the Bill, I wish to remove 
 some objections which may possibly be made. It may 
 be said— I do not suppose that it will — but it may, 
 perhaps, be said, that this Bill has had its origin in 
 the feeling excited by a recent judgment of the 
 Judicial Committee of the Privy Council, in a case too 
 well known to make a more particular description 
 necessary. And undoubtedly, my Lords, it must be 
 admitted, that the very great importance of that Judg- 
 ment, and the conflict of opinions and feelings to which 
 it has given rise, have forced us to a nearer and more 
 critical examination of the question relating to a 
 Court of Appeal in cases of false doctrine, and have
 
 imposed upon us the duty of endeavouring to devise 
 some modification of the existing tribunal, which 
 might remove what are very generally considered 
 to be grave objections to its present form. But 
 the necessity of . -some change in this department 
 of our ecclesiastical jurisprudence was felt long before 
 the recent appeal, at a time when the probability of 
 such an appeal was not in contemplation. It is only 
 surprising that it was not clearly perceived at the time 
 when the Judicial Committee was substituted for the 
 old Court of Delegates. But no such necessity was then 
 alluded to. The reason of which, I suppose, was this : 
 that appeals to that court in suits involving questions of 
 doctrine had been so exceedingly rare — not more than 
 three or four from the first institution of that court — 
 that the contingency of such an appeal came into no 
 one's mind ; and as to all other kinds of appeal in 
 ecclesiastical suits, the Judicial Committee appears to 
 be an unobjectionable tribunal, with one exception 
 only, viz. that its members are not necessarily, as 
 they ought to be, members of the Church of England, 
 In the Bill which I had the honour of presenting to 
 your Lordships in 1847, an important change was 
 proposed in the court of ultimate appeal in cases of 
 false doctrine ; or rather, the substitution of an entirely 
 new court for the Judicial Committee of Privy Council : 
 and that proposition was assented to by the Select 
 Committee, to whom your Lordships refused the Bill. 
 That Committee included all the Peers who had filled
 
 G 
 
 liigli legal offices (except, I believe, the noble and learned 
 Lord Avho then tilled with so much honour to himself 
 and so much advantage to the country, the office 
 of Chief Justice of the Queen's Bench.) Amongst 
 them certainly was the noble and learned Lord, who 
 now discharges with so much ability the duties 
 of that high office. The clause relating to a new 
 Court of A])peal was carefully considered, and finally 
 assented to by the whole of the Select Committee. 
 The only objection hinted at, was a doubt, whether it 
 would be such a Court as could work, for want of the 
 necessary machinery. It having been found impossible 
 to caiTy the Bill through Parliament that session, it 
 was not pressed to a second reading : but the same 
 Bill, as amended by the Select Committee, w^ns re- 
 introduced in the Sessions of 1848, 1849 ; and in both 
 years, owing to various causes of delay, was suffered to 
 remain in suspense. A Bill with the same object was 
 read a first time early in the present session, con- 
 taining a clause which provided for the erection of a 
 somewhat different Court of Appeal. That clause 
 had been framed in compliance with the suggestion 
 of some eminent persons, whose opinions were entitled 
 to my respect. But finding that many persons did 
 not consider it to be so satisfactory as could be Avishcd, 
 I thought it my duty to refer the subject to my Right 
 Reverend Brethren, whom the Most Reverend Primate 
 at my re(|ucst called together for the purpose of con- 
 sidering it.
 
 The result of our deliberation was, that it would 
 be better to look at the question of a Court of Appeal 
 by itself, and to make it the subject of a distinct and 
 substantive Bill, seeing that the principle it involves 
 is regarded by the Clergy in general as of so great 
 importance, as to throw into the shade all other 
 measures for the regulation of Church discipline. The 
 question was carefully and calmly considered by us at 
 several meetings, attended by twenty-five out of the 
 twenty-seven Bishops of England and Wales ; and the 
 result was, an almost unanimous agreement, as to the 
 propriety of introducing into your Lordships' House 
 the Bill now before you. I do not say that we were 
 quite unanimous, or that all of those who agreed to 
 the introduction of this Bill were entirely of one mind 
 as to its provisions; but any difference of opinion 
 which prevailed, related rather to the details of the 
 Bill than to its general principle ; and the very few 
 who withheld their approval of its introduction, did 
 so, not so much from any objection to the measure 
 itself, as from a doubt as to the expediency of bringing 
 it forward, without having first ascertained that it 
 would have the support of Her jMajcsty's Government. 
 Some of my Right Reverend Brethren thought that the 
 Bill would require, or admit of, some modification : and 
 if it should be suffered to go into Committee, I shall be 
 ready to pay the most respectful attention to any sugges- 
 tions for that purpose, provided that they do not mate- 
 rially interfere with the essential principle of the Bill.
 
 s 
 
 My Lords, 1 liavc said enough to prove, that tlie 
 proposal for modifying the existing Court of Appeal is 
 not the offspring of recent excitement, but had its 
 origin in an opinion long entertained, that some 
 change was absolutely necessary in the constitution of 
 that Court, as a court of ultimate appeal in cases of 
 false doctrine. 
 
 Another objection, whicli may possibly be made to 
 this Bill, I deem it necessary to meet by anticipation, 
 as being one of far greater importance, but, as it ap- 
 pears to me, not less easily removed than the former, 
 viz : that it interferes with the Royal Supremacy. And 
 yet I can hardly think that such an objection will be 
 seriously urged against the present Bill, when no 
 demur was made on that ground, by those who 
 were most competent to discern such a fault, in the 
 Bill of 1847, the provisions of which, as it seems to 
 me, were far more open to the objection. If indeed, 
 my Lords, that objection could be substantiated, if 
 it could be proved that this Bill went to interfere \a ith 
 the Royal Supremacy, properly understood, I should 
 at once desist from urging your Lordships to give 
 it a second reading. 
 
 My Lords, I am not one of those who think that 
 the Royal Supremacy, in matters ecclesiastical, is an 
 intolerable burthen on the Church, in principle at 
 least, whatever it may be made in practice. It was 
 not only acknowledged, but gladly resorted to by the 
 early Chm-ch. The history of the Councils abounds
 
 9 
 
 in examples. I regard it, not as an inevitable evil, but 
 as a substantial good ; a protection against foreign 
 domination and spiritual tyranny, and no unimportant 
 security even for civil liberty. It is a prerogative of 
 the Sovereign, not resting on the ground of any 
 recent or newfangled claim, but a jewel in the ancient 
 crown of this realm, plucked from it for a time by u 
 foreign and intrusive power, and transplanted to his 
 own tiara ; but re-asserted to its rightful owner by 
 the unanimous determination of the spiritualty and 
 temporally just before the Reformation. It is in 
 truth, that just and necessary prerogative, which, as 
 our Articles express it, "we see to have been given 
 always to all godly princes in Holy Scriptures by 
 God himself, that they should rule all estates and 
 degrees committed to their charge by God, whether 
 they be ecclesiastical or temporal, and restrain Avith 
 the civil sword the stubborn and evil doer." 
 
 But this supremacy of jurisdiction, my Lords, is to 
 be exercised by the Sovereign in things ecclesiastical, 
 as it is in things temporal, by means of duly con- 
 stituted Courts. Our Monarch is supreme Governor 
 in all spiritual and' ecclesiastical things, as in all 
 temporal causes and things ; in the latter by means 
 of judicial tribunals, established either by common 
 law, (which presupposes the universal consent of the 
 nation,) or by statute law, which implies such con- 
 sent given through its organ the Parliament ; in the 
 former, by means of Courts established either by 
 
 c
 
 10 
 
 ancient custom in the Church, (which supposes an 
 original canonical authority,) or by the Crown, with 
 the assent of tlic Church's parHanient, its Convoca- 
 tion. The Sovereign then is supreme Governor, in 
 causes spiritual, under precisely the same restrictions 
 as in causes temporal. 
 
 Whatever court, therefore, legally constituted, is 
 the Queen's Court, is a means whereby the royal 
 supremacy is exercised, and cannot be said to in- 
 fringe it. The Church indeed may have some reason 
 to complain of an ecclesiastical tribunal, which is 
 established without its consent given in Convocation ; 
 but the Sovcreif/)i can have none, on the score of 
 the supremacy. 
 
 But one great recommendation of this present Bill, 
 as compared with those to which I have alluded, is, 
 that it does not go to substitute a /lew Court for 
 that which already exists, but only directs a particular 
 course of proceedings in certain specified cases of a 
 very peculiar nature, requiring a peculiar provision. 
 I will now proceed, my Lords, with all j)racticable 
 brevity, to trace the history of that Court, and to 
 show how there has been a gradual and almost un- 
 noticed departure from what I think may properly 
 be called constitutional princijj/cs. 
 
 The tirst Statute respecting Appeals, is that of 
 24 Hen. VIII. c. 12 (153:2), which relates only to Ap- 
 peals in causes of Wills, Matrimony, Divorce, Tithes, 
 Oblations, and Otterings. It is deserving of obser-
 
 11 
 
 vatioii tliat this Statute, which refers in its preamble 
 to the prerogative of the Crown, as supreme in its 
 authority to render justice in all causes, temporal or 
 spiritual, expressly recognises the authority of that part 
 of the body politic, called the Spiritualty — as ''suffi- 
 cient and lueet of itself, to determine all doubts, when 
 any cause of the Law Divine happens to come in ques- 
 tion, or of spiritual learning," It makes Appeals to the 
 Archbishop's Courts final, in the causes to which it 
 relates, except where the King is concerned, and then 
 the Appeal is directed to be made to the Upper House 
 of Convocation, whose decision is to be conclusive. 
 
 In the following year, (1533,) the Statute 25 
 Hen. VIII. c. 19, was passed, which enacted, that 
 " for lack of justice in any of the Courts of the 
 Archbishops of this realm," an Appeal should lie to 
 the King in Chancery, and that upon every such 
 Appeal, the Crown should appoint Delegates to hear 
 and definitively determine the cause. Afterwards, 
 however, in virtue of the prerogative, the Crown 
 was considered to have the power of issuing a Com- 
 mission of Review, for the purpose of revising the 
 judgment of the Delegates. This statute determined 
 the course of appeals without any reference to the 
 royal supremacy. 
 
 The Stat. 26 Hen.VIII. c. ] , declared the King to be 
 supreme head in earth of the Church of England, and 
 gave him authority to " visit, repress, and correct errors, 
 heresies and abuses, which by any manner of spiritual
 
 1:2 
 
 authority iniglit lawfully be reformed." This statute 
 was repealed in Queen Mary's time, and was never 
 revived. But the Stat. 1 Eliz. c. 1, gave a like power 
 to the Queen ; and it also gave her w^hat the former 
 statute had not given to the Crow^n— -the means of 
 exercising that power by the Higli Commission Court, 
 afterwards made an instrument of great oppression 
 and cruelty, and finally, and deservedly abolished by the 
 If) Car. I. c. 11. But inasmuch as this Court pos- 
 sessed not an appellate, but an original jurisdiction, 
 the ancient appellate jurisdiction of the Court of 
 Delegates remained in force, having been in the first 
 instance established by the legislature, independently 
 of the royal supremacy, and before that supremacy had 
 been clothed by the statute-law^ with any jurisdiction. 
 In process of time the Court of Delegates fell into 
 disrepute, from causes which the noble and learned 
 Lord opposite (Lord Brougham) had pointed out, when 
 at an earlier period of the session 1 touched upon the 
 question of a new Court of Appeal. The statute of 
 the 2d and 3d William IV. c. 9.2, abolished that 
 Court, and directed appeals to be carried to the King 
 in Council, and that no Commission of Review should 
 in future be granted. 
 
 In the following year an Actw'as passed constituting 
 a Committee of the Privy Council, consisting of certain 
 specified members of the Council, to whom the King 
 might from time to time, by appointment, or his 
 sign-manual, add any other two Privy Councillors, to
 
 13 
 
 hear all appeals vvliich niiglit be brought before His 
 Majesty in Council, and to make a report, or recom- 
 mendation thereon, to His Majesty in Council for his 
 decision thereon. 
 
 It is now, my Lords, my duty, a delicate and 
 painful duty, but clearly necessary to the right per- 
 formance of my task, to point out what I consider to 
 be the principal objections to the existing Court of 
 Appeal. It is a painful and delicate duty, because 
 I speak in the presence of some of those distinguished 
 persons who are members of that Court, for whom 
 individually I feel the sincerest respect. No person 
 is more thoroughly impressed than I am wi'h a con- 
 viction, that as judges, in all matters relating to the 
 administration of the law, they perform their duty in 
 the most admirable manner. My objection is rather 
 to the principle on which that Court is constituted, 
 than to the mode in which its members discharge 
 their judicial functions. I am bound to say, that, as 
 far as my own observation extends, and judging from 
 the reports of others, there can hardly be a more 
 satisfactory tribunal of ultimate appeal, in all cases 
 but those which involve a question of purely spiritual 
 discipline, than the Judicial Committee of the Privy 
 Council as at present constituted. In all matters 
 requiring judicial acutencss and calmness, impartiality 
 and firmness, for the discovery of the truth of facts, 
 and for the explanation and application of the law, 
 nothing more is to be desired. It is only when
 
 {jucstioiis of doctrine arise, and points of faitli arc to 
 be determined, that I object to that tribunal as incom- 
 petent ; it is competent to decide all questions of 
 ecclesiastical law, but not matters purely spiritual, 
 involving questions of divine truth ; for this office 
 it is not properly qualified, with reference either to 
 the Church's original constitution, or to the personal 
 qualifications of the judges. 
 
 And here, before I proceed to examine that ques- 
 tion, I will venture to state generally what in my 
 opinion are the objects which the State and the 
 Church may be supposed to have in view, in con- 
 stitutinsr ecclesiastical tribunals. So lonsf as these 
 objects are steadily kept in view by both parties, there 
 is no ground of alarm for either ; and I beg to assure 
 your Lordships, that it is with a view to these objects 
 alone that I now seek to remodel — no, not to remodel 
 — but to give new efficiencv to the existinsj Conrt of 
 Appeal. I apprehend it to be the duty of the State 
 to preserve inviolate the original sfatfs of doctrine 
 and discipline agreed upon by the Church and State ; 
 and secondly, to keep all ecclesiastical judges to the 
 terms of that settlement, and within the limits of their 
 lawful jurisdiction. On the otiier hand, the duty of 
 the Church, I conceive, is to preserve its doctrine pure, 
 and its discipline inviolate ; and, secondly, to have in 
 the last resort a fiona fide ])ower of correcting errors 
 in those respects connnitted by the civil tribunal, and 
 so to avoid the danger of a collision with the State.
 
 15 
 
 I know what would be the constitutional mode of 
 carrying these purposes into effect ; namely, to permit 
 the Church to deal synodically with questions of heresy 
 or false doctrine. But my whole course of argument 
 proceeds on the assumption that such permission is 
 not likely to be conceded to us at the present moment, 
 and that the want of that freedom makes the present 
 measure all the more necessary. Suffer me, my 
 Lords, to remind you in passing, that the Church of 
 England is the only Church in Christendom which is 
 deprived of the privilege of sy nodical deliberation. 
 I do not now intend, my Lords, to touch upon that as 
 a groLUid of complaint — the subject is too large and 
 too important to be discussed incidentally ; but I 
 allude to it as a strong reason for acceding to the 
 wish entertained by a very large body of Churchmen, 
 both lay and clerical, that questions of false doctrine, 
 when they arise, and must of necessity be decided, 
 may be referred, for decision, to the Bishops of the 
 Church of England. 
 
 I now proceed to state some of the reasons why I 
 think that the Judicial Committee is not altogether a 
 competent tribunal for the determination of such 
 questions. In the first place, the Judges are ex- 
 clusively laymen, some of whom are not qualified 
 by their previous studies and habits of mind to 
 deal with purely spiritual questions. Secondly, some 
 of them, possibly a majority, may not only not be 
 members of the Church of England, but many enter-
 
 10 
 
 tain opinions diametrically opposite to the Cliurch's 
 doctrines. Bnt I am not disposed to dwell upon this 
 objection, because I believe it will be generally con- 
 ceded, that in this respect a change is necessary, and 
 that no judges should sit to determine a question of 
 Church doctrine, who are not members of the Church. 
 Putting aside also, for the present, the question 
 whether the Judicial Connnittee can be considered as 
 properly a Church Tribunal, I proceed to speak of its 
 incompetency. I am loth to use that word ; but I 
 find it difficult to employ any word which shall not be 
 capable of an offensive meaning; and I must speak 
 the truth, plainly, but with the most perfect respect 
 for the individual members of that Court. I object, 
 then, to that tribunal on the ground that its members 
 arc not competent judges of such spiritual questions 
 as are likely to be submitted to their decision. I am 
 aw\nre it may be said that every educated member of 
 the Church must be considered to have a competent 
 knowledge of its doctrines. I know that this ought 
 to be the case, but 1 put it to your Lordships to say 
 whether it be so indeed. There are indeed some 
 leading features of the Church's doctrine so plain and 
 pali)able, that scarcely any one of its members, who 
 has received any religious instruction, can be ignorant 
 of them, l^ut there are many grave and diflicult 
 questions in divinity, depending upon a right con- 
 struction of the Articles, which scarcely ever engage 
 the attention of tlic laity; (^sj)eeially of those whose
 
 17 
 
 profession necessarily turns their minds to other sub- 
 jects. I can easily imagine a case of this sort brought 
 before lay judges, altogether new to them, and scarcely 
 to be understood without previous study and thought ; 
 where they might be puzzled to understand the exact 
 meaning of terms, which, to persons conversant with 
 such matters, are the mere alphabet of theology. 
 Is it likely that they will be able to decide satisfac- 
 torily such a question, involving, perhaps, in its 
 consequences, the peace and unity of the Church, 
 when all their previous studies have been in an 
 entirely different direction, and when their minds have 
 not been prepared by the habitual consideration of 
 such matters, to take an exact and comprehensive 
 view of the case before them in all its bearings ? 
 
 Your Lordships are well aware how much of the 
 law of the land has been formed by the decisions of 
 the Judges. Every decision of a point of doctrine by 
 the Judicial Committee, would form, as in other 
 Courts of final appeal, a precedent. Such precedents 
 settle, or modify the law ; and at last become law 
 themselves. And thus a supreme court of justice 
 may, in some sense, not only administer but make 
 laws. I am well aware that the Judicial Committee 
 of the Privy Council has disclaimed both the intention 
 and the power of determining any question of doc- 
 trine, properly so called. But is it so obviously 
 impossible, as to render unnecessary any attempt to 
 prove it, that they can give any decision upon a ques- 
 
 D
 
 . • 18 
 
 tion which turns upon a point of doctrine, without 
 aticcting to some extent the doctrine itself, as one 
 which is insisted upon, or not, by the Church? Take 
 any one case of this kind. Suppose them called 
 upon to decide a question, whether such or such a 
 doctrine is, or is not, the doctrine of the Church of 
 England. Their judgment may be to this effect : It 
 cannot be denied that the doctrine in question is the 
 doctrine of the Church of England, but we do not 
 think it indispensably necessary that a person should 
 believe that doctrine, in order to the exercise of his 
 ministry in the Church. AVho does not see that a 
 succession of such judgments would injure the cha- 
 racter of the Church of England as a teacher and 
 maintainer of the Truth ? Again : the Judges of our 
 Courts of Law, when called upon to decide new cases, 
 decide upon certain fixed principles, perfectly familiar 
 to them, which they have only to apply to the facts 
 of the particular case. These decisions are looked 
 upon as faithful and true expositions of the law, because 
 they proceed from those whose thorough acquaintance 
 with the whole system of English jurisprudence, 
 both in theory and practice, renders them perfectly 
 competent to give them ; and so it may be, that those 
 w'ho are set to administer the law, do in some cases 
 make it. So in cases involving questions of doctrine, 
 the Judges, who are ultimately to decide them, may by 
 degrees alter, or modify the laws which relate to them. 
 But then they are not versed in divinity, as the
 
 19 
 
 judges of the temporal courts are in the common and 
 statute law, or in the rules of equity. There may be 
 some exceptions to this ; indeed I have had the 
 advantage of knowing more than one ornament of 
 the judicial bench, who was well read in theology. 
 But this will not be a case of common occm-rence. 
 On the other hand, I think it will not be denied, that 
 in respect of the knowledge and experience required 
 for coming to a right judgment on doctrinal questions, 
 the collective body of the English Bishops would form 
 a competent and trustworthy tribunal. 
 
 And this brings me to a consideration of the prin- 
 ciple which is embodied in the Bill now under your 
 Lordships' consideration ; that the decision of purely 
 spiritual questions should be left to spiritual judges 
 — not merely ecclesiastical, but spiritual judges. 
 I venture to call this a constitutional principle; one 
 which has been recognized in the constitution of this 
 Christian country from the earliest period of its 
 history ; and as an evidence of its soundness and 
 expediency I would remind your Lordships of a 
 dictum of that great jurist, who is reckoned, by 
 universal consent, the oracle of the common law — 
 Lord Coke. His words are these : " Certain it is, 
 that this kingdom hath been best governed, and peace 
 and quiet preserved, when both parties, that is, w^hen 
 the justices of the temporal courts, and the ecclesi- 
 astical judges, have kept themselves within their 
 proper jurisdiction, without encroaching, or usurping
 
 •20 
 
 one upon anotlicr : and where such encroachments or 
 usurpations have Ijcen made, they have been the 
 seeds of great trouble and inconvenience" This, 
 indeed, is said of the distinct jurisdiction of the tem- 
 poral courts, and of the ecclesiastical, commonly so 
 called; but the principle applies to the non-inter- 
 ference of lay-judges in matters purely spiritual. 
 Your Lordships may perhaps smile, if in illustration 
 of this I go back to the times of our Saxon ancestors ; 
 but I wish to trace up the distinction to the foun- 
 tain head of our laws ; and, indeed, I shall have 
 to go much further back before I have done. In 
 those times, as is well known, the Bishop of the 
 Diocese, and the Alderman, or Sheriff, of the County, 
 sat together in the County Court. The opinion of 
 one prevailed in spiritual causes, of the other in 
 temporal. The laAvs of King Edgar say, " Celeber- 
 rimo huic conventui Episcopus et Aldermannus inter- 
 sunto, quorum alter jura divina, alter humana populum 
 edoceto." And so it continued till the introduction 
 of Norman laws and customs. The Statute of 
 Articuli Cleri was not merely an enacting statute, 
 but, as Lord Coke says, declaratory of the common 
 law and custom of the realm. The 13t.h chapter 
 runs thus : " Also it is desired that spiritual persons, 
 whom our Lord the King doth present unto benefices 
 in the Church, if the Bishop will not admit them, 
 (either for lack of learning, or for other reasonable 
 cause,) may not be under the examination of lay
 
 21 
 
 persons, but that they may sue to an ecclesiastical 
 judge, to whom it of right belongs, for the obtaining 
 of such a remedy as may be just." The answer is, 
 "Of the fitness of a person presented to a benefice 
 the examination belongs to the ecclesiastical judge. 
 So it hath been heretofore used, and shall be so in 
 future." 
 
 It is said by Lord Coke, that "if the cause of 
 refusal to institute be spiritual, the Court" (in the case 
 of a Writ of Qiiare ImpecUtJ " sliall write to the 
 Metropolitan to certify thereof." In Specot's case, 
 the Court of King's Bench admitted that " it doth 
 not appertain to the King's Court to determine 
 schisms or heresies; and that where the original 
 cause of the suit is matter whereof the King's Com't 
 hath cognizance, the King's Court is to consult 
 with Divines, to know whether it be schism or not." 
 Blackstone says, " If the cause of refusal to institute 
 be of a spiritual nature, as heresy, particularly alleged, 
 the fact, if denied, shall be tried by a jury ; and 
 if the fact be admitted, or found, the Court, upon 
 consultation and advice of learned divines, shall de- 
 cide its sufficiency." Now this is very nearly the 
 arrangement which I desire to see established with 
 respect to spiritual causes which come before the 
 Judicial Committee. No persons can be better judges 
 of the facts of a case than the learned and able 
 members of that Court ; and it would be for them to 
 inquire and determine as to the fact of A. B.'s having
 
 taught certain doctrines, alleged to have been taught 
 by him ; and, if he had, then to consult the Bishops 
 whether those doctrines be heretical or not. 
 
 The Reformatio Legum, the recommendations of 
 which, if King Edward VI. had lived a little longer, 
 would probably have become law, provided, that 
 where any cause of heresy should devolve to the 
 Crown, it should be settled, if a grave cause, by 
 a Provincial Council, or by three or four Bishops 
 appointed by the Crown. 
 
 I have already directed your Lordships' attention 
 to the fact, that the first Statute of Appeals expressly 
 declares " that part of the body poUtic, called the 
 Spiritualty, to be sufficient and meet of itself to 
 determine all doubts when any cause of the Law 
 Divine happens to come in question, or of spiritual 
 learning." And when power was given to the King 
 to hear appeals by the Delegates, I conceive it never 
 to have been contemplated, that those Delegates 
 should be other than ecclesiastics, or the Judges of 
 ecclesiastical courts; and your Lordships will bear 
 in mind, that down to the reign of Henry VIII. the 
 Judges of these courts were mostly clergymen ; and 
 if not clergymen, they were the substitutes and 
 representatives of the Bishops, or of other spiritual 
 persons. It is by no means unimportant to remark, 
 that during the reigns of Henry VIII. and Elizabeth, 
 there is no trace of any of the Nobility, or Common 
 Law Judges, in any Commission of Delegates, nor
 
 23 
 
 afterwards in one Commission out of forty, till the 
 time of the Great Rebellion. In the celebrated case 
 of Whiston, Queen Anne, in answer to a petition 
 respecting the authority of Convocation to deal with 
 charges of false doctrine, declared it to be the opinion 
 of eight out of the twelve Judges, and of the Attorney 
 and Solicitor- General, that " a jurisdiction in matters 
 of heresy, and condemnation of heretics, is proper to 
 be exercised in Convocation." 
 
 Having thus, my Lords, traced the principle of 
 entrusting the decision of spiritual questions to spi- 
 ritual persons, through the history of the English 
 law, I must now call your Lordships' attention to 
 the practice of the early Church, I have already said 
 that it willingly recognized the principle of regal 
 supremacy, and had recourse to it for protection and 
 support in the discharge of its spiritual functions. 
 The Emperors not only summoned General Councils, 
 but sometimes presided over them, either in person or 
 by their legates ; not for the purpose, at least not 
 for the avowed purpose, of overawing their decisions ; 
 but simply to take care that all their proceedings 
 should be regulated according to the canons of the 
 Church, and that there should be no extravagation 
 beyond the line which those canons had marked out 
 as that, within which the Church was to exercise its 
 proper jurisdiction. De Marca, in his well-known 
 Treatise De Concordia Sacerdotii et Imperii, cites, as 
 an instance of this, the proceedings of the Emperor
 
 24 
 
 Theodosius witli respect to the Council of Ephesus. 
 Spetiking of the Roman emperors, who claimed the 
 right of hearing and determining appeals from ecclesi- 
 astical tribunals, he says, "Eximia auctoritate potiti 
 sunt Imperatores Romani in rebus et judiciis ecclesi- 
 asticis. Sed nullum, ut existimo, proferri potest 
 exemplum judicii canonici, ab uno episcopo redditi, 
 de quo statim recta via querela delata est ad Prin- 
 cipem. Illi judices ecclesiasticos dabant ; uunquam 
 autem de re canonica cognitionem suscipiebant, sed de 
 ordine judiciorum." Van Espen, the most celebrated 
 of modern Canonists, says, " Indubitatum, examen 
 ac decisionem fidei Ecclcsia), ejusque ministris, non 
 autem Principibus laicis a Deo concreditum. Nee id 
 unquam Principes Catholici sibi attribuerunt, sed 
 ipsos Pontifices, et Episcopos, et Ecclesiae Pastores, 
 judices doctrinsc nunquam non cognoverunt." And 
 again, " Aliud enim longe est, Principem se interponere 
 promulgationi novae legis per suas provincias, ejusque 
 executioni : et aliud, velle judicare de ipsis articulis et 
 dogmatibus, sive quid de fide credendum, vel non 
 credendum, definire — nunquam enim a Principis officio 
 alienum esse existimatum est, externum illud jus quod 
 consistit in iraperando, cogendo, promulgando, paceni 
 custodiendo." 
 
 This is the ])rinciplc which regulated the exercise 
 of the imperial, or royal supremacy in the Appellatio 
 tajiquam ab abusu, of which so nuicli was written by 
 the French lawyers and divines, and which is still a
 
 25 
 
 subject of discussion, — the Appel comvie d'abiis. The 
 interference of the supreme civil power is Hmited, 
 according to M. Laine, as quoted by M. Dupin, in his 
 Manuel du Droit Ecclesiastique, to — 1. Excess of 
 power in spiritual matters ; 2. Violation of the laws 
 and regulations of the kingdom and of the rights of 
 citizens; and, 8. Outrage or violence in the exercise of 
 ecclesiastical functions. But no right of interference 
 has ever been claimed in the determination of purely 
 spiritual questions. This question Avas agitated in the 
 well-known contest for the liberties of the Gallican 
 Church, in Avhich the celebrated Bossuet bore so 
 conspicuous a part. But long before his time the 
 authority of Bishops in deciding questions of faith, 
 independently of the Pope and, a fortiori, of the 
 Prince, had been strenuously asserted by the Doctors 
 of the Sorbonne, as belonging to the episcopal office 
 by divine institution. One of their most celebrated 
 writers, Petrus AlKacensis, afterwards Archbishop of 
 Cambrai and a Cardinal, in a treatise addressed, in 
 the name of the Faculty of the Sorbonne, to Pope 
 Clement VIL, asserted, that to exclude Bishops from 
 the examination and decision of matters of faith, was 
 contra jus turn divinuni quum humanum. This prin- 
 ciple is still acknowledged in the ecclesiastical law 
 of Prance ; for, though the A2:)pel comme d'abus is 
 still admitted, it is only in matters which affect the 
 rights and liberties of the subjects, not in questions of 
 faith.
 
 21) 
 
 1 now proceed, my Lords, to adduce some arguments 
 in favour of the Bill, from the analogy of our Courts 
 of Law, I am aware that the analogy is not perfect ; 
 that it does not extend to that provision in the present 
 Bill, which makes the opinion of the Bishops com- 
 pulsory upon the Court of Appeal ; but still it 
 justifies, 1 think, the essential principle of the Bill, 
 which is, that the Court shall take for its guide the 
 judgment of competent persons. Your Lordships are 
 aware that it is a maxim in our com'ts of law, that 
 cuique in sua arte credendum ent ; in pursuance of 
 which, when any matter comes before a Coiu-t which it 
 is not competent, for want of knowledge, to decide, it 
 refers for advice and guidance to those who are. I will 
 read to your Lordships a brief statement relating to 
 the Court of Chancery, furnished me by a learned 
 friend who practises in that court : — 
 
 " When a disputed question of common law arises in 
 the course of a Chancery suit, and is necessary to be 
 determined before the suit can be finally disposed of, 
 it is the practice of the Court of Chancery either to 
 direct the parties to try the question in an action to 
 be brought by one of them against the other for that 
 purpose in a connnon law court, or to order a special 
 case to be stated and sent to a common law Court, for 
 the purpose of obtaining the opinion of that Court 
 upon such question. In the former case, the result 
 of an action binds the parties, and is acted on as 
 conclusive' by the Court of Chancery ; but the Lord
 
 27 
 
 Chancellor is not bound to act on the opinion certi- 
 fied b}^ the judges in answer to a special case, but 
 may, and often does, send a second case, stating the 
 same question, to a second Court of law; and even a 
 third case to a third Court. It is true that in theory 
 a judge in Chancery might refuse to act upon any of 
 these opinions, but, practically, the certificate of one 
 or more of the common law Courts (according as the 
 case may have been sent to one or more) is adopted 
 and acted upon by the judge in Chancery, and is made 
 the foundation of the decree, as far as relates to the 
 legal question." 
 
 With regard to foreign law there was more diffi- 
 culty, obviously, in ascertaining what it was : — 
 
 " Our Com'ts do not take judicial notice of any 
 foreign law^s ; and, when a question of foreign law 
 arises, either in Chancery or before the common law 
 Courts, it is dealt with as a question of science, to be 
 proved (like matters of fact) by the testimony of wit- 
 nesses practically conversant with the subject. The 
 principle and mode of proof is exactly the same, 
 whetlier the question be one of chemistry, or of me- 
 chanics, or of French law. None of our Courts have 
 jurisdiction to direct any mode of trial before a foreign 
 court ; but the evidence on Avhich they proceed is the 
 sworn opinion, orally delivered, of a person learned 
 and experienced in the foreign law." 
 
 I will here read to your Lordships the opinions 
 of learned judges, whose names will carry infinitely
 
 28 
 
 greater weight than any statements of mine. The 
 first is from that learned and excellent person, whom 
 I have already mentioned in terms — I was going to 
 say of commendation, but I feel that it would be pre- 
 sumptuous to use terms of commendation respecting 
 him ; most gladly do I pay the tribute of my deep 
 and unfeigned respect to the Late Lord Chief Justice 
 of the Queen's Bench — Li the Baron de Bode's case, 
 Lord Denman said ; 
 
 " There is a general rule, that the opinions of per- 
 sons of science must be received as to the facts of 
 their science. That rule applies to the evidence of 
 legal men ; and I think it is not confined to unwritten 
 law, but extends also to the written laws which such 
 men are bound to kno^v. Properly speaking, the 
 nature of such evidence is not to set forth the con- 
 tents of the written law, but its effects, and the state 
 of law resulting from it. The mere contents, indeed, 
 might often mislead persons not familiar with the 
 particular system of law ; the witness is called upon 
 to state what law does result from the instrument." 
 Mr. Justice Coleridge, in the same case, said, " What 
 in truth, is it that we ask the witness ? Not to tell 
 us what the written law states, but, generally, what 
 the law is. The question for us is, not what the 
 language of the written law is, but what the law is 
 altogether, as shown by exposition, interpretation, and 
 adjudication."
 
 29 
 
 In the case of the Duchy of Bronte, Lord Langdale 
 expressed his opinion thus : 
 
 " With foreign laws an EngHsh judge cannot be 
 famiHar ; there are many of which he must be totally 
 ignorant ; there is, in every case of foreign law, an 
 absence of all the accumulated knowledge and ready 
 associations which assist him in the consideration of 
 that which is the English laAV, and of the manner in 
 which it ought to be applied, in a given state of 
 circumstances to which it is applicable. He is not 
 only without the usual and necessary assistance afforded 
 by the accumulated knowledge and able suggestions 
 contained in the arguments which are addi'essed to 
 him, but he is constantly liable to be misled by the 
 erroneous suggestions of analogies which arise in his 
 own mind, and are pressed upon him on all sides. 
 These difficulties are obvious enough, even in cases in 
 which he may have before him the very words of that 
 which has proved to have been the law applicable to 
 the event in question. Even if we suppose it to be 
 proved that the law has not been legislatively repealed 
 or varied, and has not fallen into disuse, and that the 
 words have been accurately translated, still the words 
 require due construction ; and the construction depends 
 on the meaning of words to be considered with refe- 
 rence to other w^ords not contained in the mere text of 
 the law, and also with reference to the subject matter, 
 which is not insulated from all others. The construc- 
 tion may have been, probably has been, the subject of
 
 30 
 
 judicial decision ; instead of one decision, there may 
 have been a long succession of decisions, varying more 
 or less from each other, and ultimately ending in that 
 which alone ought to be applied in the particular case. 
 The difficulty which arises under such circumstances is 
 obviously very great ; but it is vastly increased when 
 the law itself, or the form or collocation of words in 
 which the law is expressed, has never been authori- 
 tatively expounded, but is to be discovered from 
 decisions or usages, or from the opinions of unautho- 
 rized writers, who may have written much that is 
 acknowledged to be existing law, and also, in the same 
 books, much w^iich is contrary to existing law. The 
 decisions were subject to be, and may have been, 
 altered by subsequent decisions, and the precise appli- 
 cation of them to the case in question may only be 
 ascertainable by means of an accurate historical and 
 legal deduction from all that has passed in the Courts 
 on the subject ; and a judge who seeks information as 
 to a foreign law has not, in himself, the means of dis- 
 tinguishing the correct from the incorrect proposition 
 of a text writer. Whoever has considered the nature 
 of the difficulties which frequently arise in our own 
 Courts in the investigation of English law, applicable 
 to particular cases, and the mode of reasoning and 
 investigation by which it is endeavoured to surmount 
 those difficulties, will perceive what presumption it 
 would often, nay, generally be, in an English judge to 
 attempt to apply the same process to the investigation
 
 31 
 
 of a foreign law, and the consideration of its proper 
 application to particular cases. The rule of English 
 law, that no knowledge of foreign law is to be im- 
 puted to an English judge sitting in a Court of only 
 English jurisdiction, is undoubtedly well-founded ; and 
 as cases arise in which the rights of parties litigating 
 in English Courts cannot be determined without ascer- 
 taining, to some extent, what is the foreign law appli- 
 cable in such cases, the foreign law and its application, 
 like any other results of knowledge and experience in 
 matters of which no knowledge is imputed to the 
 judge, must be proved, as facts are proved, by appro- 
 priate evidence, i.e. by properly qualified witnesses, or 
 by witnesses who can state, from their own knowledge 
 and experience, gained by study and practice, not only 
 what are the words in which the law is expressed, but, 
 also, what is the proper interpretation of those words, 
 and the legal meaning and effect of them as applied to 
 the case in question." 
 
 I may refer also to the practice of the High Court 
 of Admiralty. When any question comes before it, 
 which is to be decided according to the rules of nauti- 
 cal science, the Judge of that Court calls to his assist- 
 ance some of the Elder Brethren of the Trinity House, 
 and by their opinion he is invariably guided in his 
 decision. 
 
 I have not yet quite done with the argument 
 from analogy. From our own Courts of Law I 
 would now direct your Lordships' attention to the
 
 32 
 
 practice of otlicr Cliurclies. In the Established 
 Church of Scotland, the final decision of all questions 
 relating to false doctrine rests with the Church Courts. 
 True, they consist of lay elders as well as ministers ; 
 but they are strictly Church Courts according to the 
 constitution of the Scottish Kirk, for the lay Elders 
 are office-bearers in the Kirk. The decision of 
 spiritual questions is left entirely to those Courts 
 which the Church considers to be competent to decide 
 them. In the Churches of Prussia such frequent 
 changes have been made, and not only, I am sorry to 
 say, in external regulations and questions of discipline, 
 but as to the profession of vital and essential doctrines, 
 that it is not easy to say what the present state of 
 those Churches really is. But according to the pro- 
 jected Constitution of 1850, a question of false doc- 
 trine, taught by a minister of the Evangehcal Church, 
 is to be decided by the Church itself, represented by a 
 General Assembly, a mixed assembly of Clergy and 
 laity. AVith regard to the Roman-catholic Church, 
 subsisting in Silesia, and the Rhenish Provinces of 
 Prussia, there is no interference whatever in questions 
 of false doctrine, on the part of the Government, but 
 they are left to the authorities of the Church, even in 
 the case of Professors in the Universities. 
 
 I have now, my Lords, in the last place, to notice, 
 very briefly, some of the objections which have been 
 made to this Bill, partly in the public papers, and 
 partly in petitions against it. And I must say that if
 
 83 
 
 no weightier arguiuents can be adduced against it than 
 those which have been hitherto urged, I do not tliink 
 that I have much to fear. One objection is, that the 
 Bill proposes to constitute a new legislative body, 
 having power to frame new doctrines. It is enough 
 to say, in answer to this objection, that no power will 
 be possessed by the new Court, which is not pos- 
 sessed by the present. Supposing that it was in con- 
 templation to invest any persons with the power, not 
 simply of determining of any particular opinion, 
 whether it be consistent with the Church's doctrine, 
 (which is all that the Court of Appeal will have to 
 determine,) but of framing new doctrines ; surely the 
 Bishops would be more competent to exercise that 
 power, than the Court as at present constituted. 
 
 Another objection is, that the laity are to be 
 excluded. Now one peculiar merit of the Bill is, 
 that it retains the laity in the exercise of their proper 
 and legitimate functions. It will not displace the 
 members of the Judicial Committee from their office, 
 as judges of fact, judges of the law, and of the rules 
 of justice ; but they will have to take their measure of 
 true or false doctrine from those, who, I am bold to 
 say, are more competent than themselves to judge 
 of such questions. I am most anxious, my Lords, 
 that the laity should know and exercise their privileges 
 as members of the Church. By the fundamental 
 principles of the Church of England all its different 
 members, laity as well as Clergy, have certain rights, 
 and certain duties, upon the faithful discharge of 
 
 ¥
 
 34 
 
 which the safety and efficiency of the Cliurch itself 
 depend. There are common duties to be performed 
 by all ; but there are also particular duties to be 
 performed by particular members, and they are not 
 to interfere with one another. 
 
 I am clearly of opinion that no judicial tribunal is 
 likely to be properly conducted, which is not presided 
 over by a lawyer. There is a peculiar habit of mind 
 formed in lawyers by study and long practice. When 
 I was a younger man I used to fancy myself a toler- 
 ably good ecclesiastical lawyer ; but when I grew older, 
 I learned to recognize that peculiar habit of obser- 
 vation and thought, a sort of idiosyncrasy of legal 
 minds, the result of long training and practice, which 
 enables a lawyer to detect a flaw in argument, and to 
 see at once the real strength, or weakness of a case, 
 and to apply to it the rules of law. I would have 
 them employ that peculiar power of mind, in eccle- 
 siastical causes, upon any legal question incident 
 thereto ; but I do not consider that it qualifies them 
 to decide any point of religious doctrine. 
 
 A third objection is of a rather singular character ; 
 the possibility of heterodoxy amongst the Bishops. 
 Now this may be a very good reason for requii'ing 
 some change in the mode of appointing Bishops; but 
 not for depriving them of their legitimate jurisdiction 
 and inherent rights, when they have been appointed 
 to their office. 
 
 A fourth objection is, that the Bill will give to a
 
 85 
 
 majority of the Bishops tlie power of determining the 
 fitness of any man to hold office in the Church. If 
 this objection has any weight, it apphes much more 
 strongly to the power, which a single Bishop possesses, 
 of preventing any person fi'om entering into the 
 sacred ministry of the Church, by refusing him ordi- 
 nation—a power which, I am persuaded, no man 
 thinks of questioning. Besides, my Lords, as this 
 power must reside somewhere, it is surely much 
 better, if we look to the competency of the judges, 
 that it should be entrusted to fourteen or fifteen 
 Bishops, than to six or seven Lawyers. 
 
 A difference of opinion amongst the Bishops on a 
 point of doctrine would undoubtedly present a diffi- 
 culty ; but this is equally true with respect to Convo- 
 cation, or a Council ; and whatever the difficulty may 
 be, we must look it boldly in the face. The Bill may 
 possibly be modified in Committee so as to obviate 
 that difficulty ; but at all events it is not to be put in 
 competition with the important principle involved 
 in the Bill. 
 
 The last objection, which I think it necessary to 
 notice, is one which has been urged in a public print 
 of great influence, namely, that it may be doubted, 
 how far such an assembly of Bishops as the Bill pro- 
 poses, can be taken to represent the authority of the 
 Church. ]\Iy Lords, it certainly would not represent 
 that authority. According to the constitution of the 
 Church; no person, nor any body of persons, can be
 
 36 
 
 held to possess, or represent its authority, except its 
 legal representatives in Convocation assembled. The 
 meeting of Bishops, contemplated in this Bill, would 
 not be a synod of the Church, nor would it have the 
 authority of the Church. 
 
 My Lords, I will no longer trespass upon your 
 indulgence. I have already done so at greater length 
 than I wished; but on a subject, with which your 
 Lordships coidd not be expected to be familiar, I 
 have thought it necessary to explain my views more 
 in detail than would be necessary on ordinary occa- 
 sions. I now leave the matter in your Lordships' 
 hands. It remains for you to decide a question of 
 supreme importance to the Church, with whom is to 
 rest, at least for some considerable time to come, the 
 final adjudication of any doubt which may arise, and 
 must be solved, whether a doctrine, alleged to be at 
 variance with the teaching of the Church of England, 
 be really so, or not. Putting aside for a moment 
 the inquiry, who ou(j]it to be the judges of such a 
 matter, according to the first principles of Church 
 government, the practice of the early Chm-ch, and the 
 theory of our own, I would humbly ask. Who arc 
 most likely to bring to its examination the qualifica- 
 tions necessary to insure a right decision ; a number 
 of lay judges, whose studies and thoughts have taken 
 a direction altogether away from the subject-matter to 
 be decided ; whose minds have been engrossed by 
 pursuits and enquiries of an entirely different nature;
 
 37 
 
 or the collective episcopate of England, consisting of 
 men, who must be supposed to have been trained up 
 from their early years in the study of theology, 
 especially of those branches which relate to the 
 distinctive doctrines of their own Church ; men, to 
 whom the consideration of such questions must, from 
 the uatiu-e of their ordinary duties, be almost of every 
 day occmTcnce ; who are more likely than any other 
 persons to have looked at the doctrine submitted to 
 them in every point of view, and to have qualified 
 themselves to pronounce a just and well-grounded 
 opinion, as to its accordance with the Church's stan- 
 dards of truth ? 
 
 But, my Lords, I would not be understood to 
 rest my case entirely upon the probabilities of supe- 
 rior fitness in point of theological learning. I rest it, 
 also, and in the first place, on the inherent and inde- 
 feasible right of the Chmxh to teach and maintain the 
 truth by means of her spiritual pastors and rulers ; 
 a right inherent in her original constitution, and 
 expressly granted to her by her Divine Head, in the 
 terms of the Apostolical commission. On this point 
 I will say no more. It will probably be dwelt upon 
 by some of those who will follow me in the debate ; 
 bat I cannot conclude without protesting against an 
 inference, which may possibly be drawn, from the fact 
 of my having laid so much stress upon Acts of 
 Parliament, and ancient practice, and upon the ques- 
 tion of comparative competency and fitness of judges.
 
 38 
 
 that I think lightly of what is in truth the funda- 
 mental and vital principle involved in this subject, 
 namely, the inherent and inalienable right of the 
 Bishops of the Church of England to be the judges 
 of questions of its doctrine, duly submitted to them. 
 I now commend this measure to your Lordships' 
 calm and serious consideration. I am myself almost, 
 overpowered by a contemplation of the results which 
 are likely to follow from its rejection. I commit it 
 to yom* Lordships' judgment, not without anxiety and 
 apprehension; but at the same time not without 
 hope. Looking to its extreme gravity and importance, 
 your Lordships will not be surprised, if I conclude, 
 with somewhat more than ordinary solemnity, by the 
 expression of a devout and earnest wish, that He, 
 who has committed to His Church the sacred deposit 
 of His truth, may guide you to a right conclusion.
 
 NOTE io p. 25. 
 
 The following passage from Rechbergen's Enchiridion Juris Eccle- 
 siastici Austriaci, VI. 3. as quoted in the Report of the Select 
 Committee of the House of Commons, on the Regulation of Roman- 
 catholic Subjects, (fee. 2o June, 1816, has been pointed out to me 
 by a friend. He is speaking of the right of the Civil Power to 
 receive Appeals tanquavi ah ahusu : " If the matter relates to the 
 defence of civil rights, to the maintenance of the tranquillity and 
 safety of the country, or to the integrity of its privileges, it 
 undoubtedly behoves the Sovereign, or the Civil Judge, to pro- 
 nounce in such cases, when he is recurred to. But if the question 
 merely turns upon ecclesiastical rights, recourse to the Sovereign 
 is then only allowable, in so far as the Ecclesiastical Judge, pro- 
 ceeding to violence, or overstepping the bounds of right, is 
 understood to have injured the Appellant ; in which case it is the 
 province of the Civil Judge, who is in no tvise to touch upon the 
 internal state, or merits of the cause (as they are usually called); 
 but merely to compel the Ecclesiastical Judge to observe that 
 order of proceeding which is prescribed by the laws." Mr. Palmer 
 (On the Church, I. p. 353) quotes the Answer of Prince Kaunitz, 
 Chancellor of the Empire, to the Papal Nuncio, Garampi, a.d. 
 1781, which asserts that "the reform of abuses, tvhich do not 
 concern dogmatical or merely spiritual points, belongs exclusively 
 to the Sovereign." Archbishop Bramhall (Works, p. 63) under- 
 stands the Statute of Appeals (24 Hen. VIII. c. 12.) to have 
 empowered the King " to receive the last appeals of his own 
 subjects, without any fear of review from Rome, or at Rome, 
 for all matters ecclesiastical and temporal ; ecclesiastical by his 
 Bishops, temporal by his Judges."
 
 L<.>XI>ON : 
 
 PKINTED BY RICHARP CLAV, 
 
 BREAD STRK.KT HILL.
 
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