LI B RAHY 
 
 OF THE 
 
 U N IVE.RSITY 
 
 Of ILLI NOIS
 
 I 
 
 ,sthe k4%/^ 
 
 mnmms of ctfuRcfewTS 
 
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 REALLY IMPOSSIBLE? 
 
 BY 
 
 R. C. MOBERLY, D.D., 
 
 CANON OF CHRIST CHURCH. 
 
 a IReissue 
 
 WITH 
 
 AN INTRODUCTORY LETTER TO 
 
 THE DEAN OF CHRIST CHURCH 
 
 3ames parfter ant) Co, 
 
 OXFORD, AND 6 SOUTHAMPTON-STREET ; 
 
 STRAND, LONDON. 
 
 1899.
 
 H Xetter to tbe Bean of 
 Christ Cburcb, 
 
 My dear Dean, 
 
 It is said that the Convocation of Canterbury, of which 
 you are a member, will next week be invited to consider 
 important proposals in connection with the work of the 
 Ecclesiastical Courts Commission, appointed in 1881. 
 I hope you will allow me at such a moment to ask 
 your attention to the contents of a pamphlet on the 
 subject, which I was bold enough to write, as Vicar of 
 Great Budworth, in the early weeks of 1886. 
 
 You will not, I hope, think that I am interfering with 
 things that are beyond my reach. I am not dreaming, 
 of course, of criticizing any practical measures, of which 
 I cannot fully know whether they are, or are not, to be 
 proposed ; and can much less know the exact, or even the 
 general, contents and character. But for that very reason 
 this would seem to be a moment at which it is excep- 
 tionally convenient to call attention to some underlying 
 principles ; and, I must add, to some fallacies as to under- 
 lying principles, which have (it is to be feared) an almost 
 exclusive possession of the minds of men in this country, 
 who rely (as for practical purposes I admit that men 
 are often almost compelled to rely) rather upon current 
 impressions than upon careful thought of their own. 
 
 One such current fallacy meets me alas ! in pages no 
 less representative than those of this last week's Guardian, 
 as a "principle which in" its "general outline must be 
 frankly recognized if any good is to come of the proposed 
 legislation." It is the belief, held largely in this country, 
 without the least examination, because it is honestly be- 
 lieved to be a self-evident axiom, that the national estab- 
 lishment of a Church necessarily means the subordination
 
 2 A Letter to the Dean of Christ Church, 
 
 of its judicial procedure, in the last resort, to the review 
 of the secular power. If this belief, instead of being 
 assumed as self-evident, were seriously examined, the 
 formidablcness of its power would quickly dissolve. 
 Happily the evidence is close at hand by which it can 
 be proved, to absolute demonstration, that neither es- 
 tablishment in the abstract, nor establishment under the 
 British Crown and Constitution in particular, is for a 
 moment incompatible with a real freedom of either Church 
 councils or Church courts. There is one other Church 
 besides our own, which has been all this time, and is 
 at this moment, nationally established, on British soil 
 and under the British Crown. In it no appeal lies from 
 the Church courts to the secular power. Because the 
 ChurcJi is established under Royal Supremacy, therefore 
 the supreme court of the Church represents the Sovereign 
 in the act of speaking the last word for Church purposes, 
 in precisely the same way in which, for civil purposes, 
 the judgment of the secular court of appeal is the Sove- 
 reign speaking her last word. There is no more appeal 
 from the highest ecclesiastical court to the Sovereign, than 
 there is from the highest secular court to the Sovereign : 
 nor does the absence of appeal infringe the sovereignty of 
 the Sovereign in the one case any more than in the other. 
 There is no more appeal from the highest ecclesiastical 
 to the highest civil court, than there is from the highest 
 civil court to the highest ecclesiastical. I am speaking, 
 of course, of the Established Church of Scotland. If 
 any one would take the moderate pains required to read 
 the article by Lord Balfour of Burleigh, in the recent 
 volume of ' Essays on Church Reform,' he would find it 
 a simple impossibility ever again to assert that the ulti- 
 mate dependence of Church courts upon secular revising 
 was in any sense a necessary element in, or consequence 
 of, establishment. On the contrary, I fearlessly assert 
 that it is a direct infringement of what national estab- 
 lishment does, of right, either historically or logically 
 mean. It was not even in England the real meaning 
 of the theory, either of King Henry VIII. or Oueen 
 
 r\ 
 
 UIUC
 
 A Letter to the Dean of Christ Church. 3 
 
 Elizabeth on the one hand, or of the Churchmen who 
 accepted the principle of Royal Supremacy on the other. 
 I speak positively as the directest method of challenging 
 inquiry on this matter. And meanwhile I protest against 
 the use of language, by those who take either — or any — 
 point of view in the approaching discussions, as if there 
 were any reason whatever in the nature of things, why 
 English Churchmen should lay down a principle so in- 
 herently untrue as this. 
 
 I am not one of those who regard the maintenance 
 of establishment as being, in principle at least, of capital 
 importance. The reasons for shrinking from the respon- 
 sibility of disestablishing are indeed serious : but they 
 are practical and historical (to my mind) rather than of 
 abstract theory. The point is one as to which I hold 
 that a Churchman, at least as Churchman, should be 
 neutral. But in any case disestablishment is always 
 open to the nation. Because (if it be so) the nation 
 disapproves of the legislative or judicial development of 
 the Church ; because the nation considers that the Church 
 has become, or is becoming, other than that which- it had at 
 first meant, or is willing now, by establishment to recognize 
 and endorse ; or indeed for any other cause, good, bad, or 
 indifferent, it is open to the nation to disestablish, at any 
 moment, a Church with which it no longer wishes its 
 national life and procedure to be identified. If the nation 
 wishes no longer to accept the organization of the Church 
 as an aspect of itself; if it declines to accept Church 
 legislature, Church judicature, Church corporate life with 
 all the corollaries that are necessary to the corporate life 
 of the Church, the first step in logic and equity would be 
 to disestablish. 
 
 I have tried once before, and am certainly not trying 
 now, to discuss, on its merits, the problem of dises- 
 tablishing. But so long as Establishment remains, let 
 it be clearly understood that Establishment is a condition 
 not of servitude but of privilege. However far I may be 
 from advocating disestablishment, I am quite sure that 
 the Church's worst enemies are those who would conserve
 
 4 - / Letter to the Dcau of Christ Church. 
 
 establishment as a means of controlling and enthralling 
 the Church. The existing condition in Scotland is the 
 true and direct outcome, in logic and equity, of the idea 
 of establishment, and of the principle (I do not say of the 
 practice) of the Tudor Sovereigns in England. It is 
 by a tacit growth, the result largely of inattention and 
 accident, that establishment has come to be, in England, 
 the expression of a principle which precisely contradicts 
 its proper meaning ; and yet is now genuinely believed, 
 by I know not what majority of intelligent people, to 
 be as irreversible as a law of nature, or as self-evident 
 as an axiom of Euclid. 
 
 I should indeed be very far from admitting that the 
 loss of freedom to legislate for herself, and conduct her 
 own justice, within the things which properly belong to 
 her sphere, would rightly or reasonably follow even from 
 the disestablishment of the Church. The Church in 
 America, a purely voluntary association in a democratic 
 state, is for these purposes no less substantially free than 
 the Established Church in Scotland ; though of course 
 not armed, like the Scottish Establishment, with the 
 majesty of national recognition and secular power. If 
 the instinct of modern thought is wholly wrong in sup- 
 posing that a Church should be the less free because 
 it is established ; it is at least right in assuming that 
 a non-established Church ought to be free. Strange to 
 say, even this, though true elsewhere, is far from being 
 true, according to existing tradition and practice, in 
 England. But I must not enter into detail on these 
 points. This letter at least is meant rather to draw 
 attention to them than to argue them. There is some- 
 thing more about them in the pamphlet which I venture 
 to send : not based, of course, on any expert knowledge 
 of my own, but on that which the Blue Book of the 
 Commission of 1881 made public to the world. 
 
 I will only add here that, when I speak of ' eccle- 
 siastical ' legislature or judicature, I am far from meaning, 
 of necessity, the legislation or the judgment of what 
 are commonly called ' ecclesiastics.' The place of Church
 
 A Letter to the Dean of Christ Church. 5 
 
 laymen, as Church laymen, in Church courts or councils, 
 though immensely important, is yet, in principle, a ques- 
 tion of detail. An ecclesiastical council, committee, or 
 court, is one (however constituted in detail) which is, 
 for the purpose in hand, the genuine outcome and bona 
 fide representative, of the Church. 
 
 Meanwhile there is one other form of the fallacy I have 
 spoken of, to which attention is not drawn directly in the 
 pamphlet ; which I will ask leave, for that reason, to 
 make plain here. 
 
 It is very frequently supposed that even if Royal 
 Supremacy does not absolutely require an appeal from 
 the highest ecclesiastical to a secular court ; yet at least 
 some reference to such a court or committee may be 
 justified as if it were part of a (supposed) inherent visi- 
 tatorial power in the Crown, or as if it were parallel to 
 the historical principle of the appel comme d'abus in the 
 Gallican Church. The inherent visitatorial authority of 
 the Crown in respect of ecclesiastical judicature will be 
 more convincing when it is an established principle and 
 practice in respect of secular judicature. Whether any- 
 thing of the kind might be tolerable in principle, or in 
 policy, if the historic Church in England were dises- 
 tablished, is open to argument. But it has certainly no 
 legitimate place while the courts ecclesiastical are them- 
 selves the Queen's courts for ecclesiastical matters. 
 
 And the reference to the Gallican Church and the 
 appel comme d'abus is altogether fallacious. The appel 
 comme d'abns was the national self-protection against an 
 extra-national system of judicature. As long as Church 
 courts rested ultimately on a basis not national but 
 foreign ; as long as their system of Canon law was in 
 the main a foreign system, and the ultimate sanction 
 and authority which lay behind the administration of 
 it was the authority and sanction of the Roman court, 
 that is to say, of an irresponsible foreign power, claiming 
 to be more august than the national sovereignty ; so 
 long it was an imperative necessity that the national 
 sovereignty should have some mode of checking and
 
 6 A Letter to the Dean of Christ Church. 
 
 limiting Church courts. No doubt in practice, when the 
 Crown was strong, the appel comme d'abus gave the 
 Crown an almost unlimited opportunity of interference, — 
 unreasonable as well as reasonable. But so long as the 
 basis of the Church's authority was foreign, some visita- 
 torial power on the part of the Crown, some power of 
 review and veto in the name of the nation, was indis- 
 pensable for national freedom. Now no such machinery 
 of protective veto is, or can be, necessary to guard the 
 freedom of the nation or Crown against a judicature, 
 which is already the judicature of the Crown itself. 
 There is nothing at all of an Erastian nature in ac- 
 knowledging, what is as true in principle as it is in 
 practice, that all power of exercising a public jurisdiction 
 within the nation comes ideally from the ideal source 
 of all national jurisdiction, — that is, from the Crown. 
 There is no other source of jurisdiction in this realm, 
 within the region of material things, except only — I do 
 not say (where a Church is nationally established) the 
 secular power, but the Sovereign, who is the sole executive 
 head, whether of secular power or of ecclesiastical. The 
 Sovereign has no need of a power of visitatorial scrutiny, 
 to check or to veto Herself. 
 
 Royal Supremacy represents one theory, the theory 
 of a jurisdiction exclusively national. The appel comme 
 d'abus represents another, and an incompatible, theory, 
 the theory of an extra-national jurisdiction in Church 
 courts. It must be one theory, or the other. The appel 
 comme d'abus cannot illustrate, or proceed from, Royal 
 Supremacy. To try to combine these two incompatible 
 principles, or to make the one the method of the other, is 
 mere confusion. 
 
 Such machinery, then, as this is quite illogical in 
 a Church established under Royal Supremacy. It would 
 be illogical also in a disestablished Church. 
 
 Nevertheless, though I have been driven to write under 
 stress of conviction that some of these most fundamental 
 principles are generally neither recognized nor believed in 
 at all ; I am sincerely anxious on the other hand to dis-
 
 A Letter to the Dean of Christ Church. 7 
 
 claim the presumptuous desire of interfering with the 
 efforts of my betters to handle practical difficulties in 
 a practical way. And therefore, if any one should urge 
 that, in view of its unique national history in the past, the 
 Church of England, if disestablished, would still hold 
 so mighty a position within the nation, that some ma- 
 chinery analogous more or less to the appel comme d'abus, 
 though corresponding neither to precedent nor principle, 
 might yet be as a political expedient wise, if not per- 
 manently yet during a period of transition and experi- 
 ment ; I should not be very careful to resist the contention. 
 I will go one step further, and venture to add that even 
 if, on somewhat kindred grounds, such an expedient should 
 be proposed in an established Church, as for the moment 
 prudent diplomatically, though in principle unconstitu- 
 tional and irregular ; even that might lie outside my 
 present argument. I scrupulously abstain from saying 
 one word in the region of present practical politics. I am 
 only endeavouring to protest against false theories of con- 
 stitutional principle. But at least if anything should be 
 proposed on politic grounds, which is irregular and il- 
 logical in principle, I may urge that it is of the highest 
 practical importance, that it should be advocated rather as 
 being, what it is, a politic irregularity, than as if it were 
 what it is not, an illustration or outcome of principles 
 constitutionally true. 
 
 I cannot but hope that my disclaimer of any desire 
 to enter (save by clearing fundamental principles) within 
 the region of immediate practical politics, may moderate 
 somewhat of the grave displeasure which perhaps I must 
 on some sides expect, as the penalty of venturing to speak 
 at all. But at least in parting I may say, in general 
 terms, that I write as one who is sincerely convinced that 
 the difficulties of the Church in what is called her present 
 crisis — (it is strange how few parishes through the length 
 and breadth of the land are conscious, newspapers apart, 
 of any crisis at all) — will be settled in the best, the wisest, 
 and the most permanent manner, by the unfettered action 
 of the Church herself. They will be settled effectively
 
 8 A Letter to the Dean of Clirist Church. 
 
 just in proportion as it becomes freely possible, in the 
 present and the future, for the Church herself, in councils 
 and courts of her own, without imported excitement or 
 pressure from the outside, to work out by degrees, with 
 all the gravity of the responsible action of a body that is 
 effectively self-governing, the methods and the needs, the 
 judgment and the discipline, of her own life. 
 
 Forgive me, if you can, for my sudden intrusion upon 
 you. I do not of course venture to presume upon your 
 agreement in the things which I have said. But indeed, 
 I only wish that I could hope to be as indulgently inter- 
 preted by others, as I am sure that I shall be by you. 
 
 Yours affectionately, 
 
 R. C. MOBERLY. 
 Ch. Ch. 
 
 Jan. 30, 1899. 
 
 ERRATA. 
 
 Page 20, line 3, for pp. 16, 17, read 12, 13. 
 ,, 41, ,, 2, for body politic read body temporal.
 
 3s tbe Jnbepenbence of Cburcb 
 Courts realty impossible? 
 
 -M- 
 
 '"T^HAT religion should be absolutely free from State 
 1 control is impossible." This principle, in one form 
 of phrase or another, is so familiar just now upon the 
 lips and in the minds of men, that it is worth while to 
 distinguish some of the possible meanings which may 
 underlie it. The words themselves are borrowed from 
 a recent Charge of Archdeacon Palmer's ; and their con- 
 text in that Charge may suggest at once a distinction 
 which will be convenient at the outset. After asserting 
 the principle Archdeacon Palmer goes on, " The well- 
 known example of the Indian Thugs will illustrate my 
 position. A State cannot tolerate murder, because there 
 is a set of men within its borders who believe it to be the 
 fittest expression of devotion to the deity of their choice. 
 Another instance nearer home may be adduced. Poly- 
 gamy is a cherished practice with the Mormons. Yet 
 surely it is not wrong for a civilized nation to forbid the 
 re-introduction of such a practice." If these be accepted 
 as illustrations interpretative of the meaning of the princi- 
 ple, the principle itself will readily be conceded. But what 
 in that case does the principle mean ? It means that where- 
 as it is essential to the constitution of a State to prevent 
 certain kinds of action which would injure the State, it 
 would become necessary for the State to interfere with 
 any religion which should inculcate or encourage such 
 actions. Not even religion would be a sufficient defence 
 for actions which are per se offences against the laws of 
 a civilized community. The very statement implies a 
 certain instinct that the rules and constitutions of religion 
 
 B 2
 
 4 Is the Independence of Church Courts 
 
 should prima facie be held to be outside of the cognizance 
 of the State. Only it is asserted that this natural pre- 
 sumption might conceivably be rebutted ; that it is not 
 a truth so absolute as to be incapable of exception ; that 
 in certain extreme cases, capable of being hypothesized, 
 the natural immunity of religion might and would be 
 overruled, the State might and would so far overthrow the 
 proper order and distinctions of things as to interfere and 
 coerce within the sphere of religion. The emphasis is 
 upon the word ' absolutely : ' " that religion should be 
 absolutely," i.e. under all conceivable circumstances, and 
 in all its conceivable aspects, so only that it could claim 
 the name of religion, " free from State control is im- 
 possible." 
 
 Now in such a sense as this the principle is an un- 
 doubted truth. And because there is a sense in which 
 it is true, therefore the words themselves cannot be denied. 
 And because they cannot be denied, therefore the state- 
 ment remains, and is apt to be appealed to as a funda- 
 mental axiom in discussion about the relation of the 
 Church to the State. But then the words are ambiguous. 
 And there can be little doubt that the ordinary conception 
 of their meaning, as they are generally used in such argu- 
 ments, is something extremely different from that which 
 has just been stated. 
 
 " That religion should be absolutely free from State 
 control is impossible." We know that under existing laws 
 and customs in England no religious body is free from 
 State control. This is the case, in point of fact, in a very 
 much wider sense than that just given. It is not only 
 that under the administration of our law no religious body 
 is allowed to interfere with the fundamental moralities of 
 social and national life, but that in all disputed cases 
 whatever, within the circle of any religious body, the civil 
 courts are in fact the ultimate courts of appeal. 
 
 Many typical cases of disputes in Dissenting congrega- 
 tions have within recent years illustrated this fact. If 
 only the dispute be persisted in, its decision will come at 
 last from the civil judge, however many subtle questions
 
 really impossible f 5 
 
 of ecclesiastical polity, or of theological doctrine, may be 
 involved in the decision. That this is so in fact has been 
 abundantly insisted on in recent controversy. 
 
 I quote two or three sentences from an article, which is 
 full of information on the subject, published in the "Church 
 Quarterly Review" of April, 1885: "Our contention is 
 that Nonconformists are hopelessly subject to the juris- 
 diction of the State courts for the interpretation of the 
 doctrines in their trust-deeds, and absolutely subject to 
 the discretion of Parliament for their alteration." " Even 
 then [i.e. if they should resign all their property in order 
 to purchase freedom] the Dissenting communities would 
 not be free from State control in matters of religion, for, 
 after all, in such a case there would still remain some 
 necessity in their purely voluntary and non-property- 
 holding communities to exercise discipline, and in relation 
 to their exercise of this right they would still be liable to 
 have their ecclesiastical proceedings reviewed, and their 
 sentences, if need be, reversed by any judge of the civil 
 court to whom an aggrieved pa/ty might make an appeal 
 according as we have shewn." Again, " It would be suf- 
 ficient for the purpose of his argument to admit that 
 State control, such as we have described, does not extend 
 beyond the question of interest in property. But though 
 such an admission would be sufficient for the purposes of 
 the argument, it would not be an adequate admission and 
 representation of all the facts of the case, for the truth is 
 that State control extends to questions of discipline of 
 a purely voluntary society, meeting in a weekly-rented 
 upper room, holding no property, and having, as a society, 
 no interest in property whatever." And finally, with 
 reference to the 'Huddersfield case:' "Never was the sub- 
 jection, absolute and helpless, of any religious body in its 
 religious concerns more manifestly and unquestionably 
 complete ; and the more the case is inquired into and 
 discussed, the more readily and candidly this will be 
 admitted by all persons whose minds are open to the 
 irresistible force of the facts stated, which overwhelmingly 
 shew that in such a case there is no getting away from
 
 6 Is the Independence of Church Courts 
 
 State control in matters of religion, even by those who 
 imagine that they are altogether free from it." 
 
 Now when facts like these are loudly insisted on ; when 
 they arc urged upon us as arguments of immense force to 
 shew not only that the independence of the Church of Eng- 
 land would not, but that it could not be attained, either 
 by any smaller change, nor even by the formal separa- 
 tion of 'Church' and 'State,' — as they have been urged 
 on many a Diocesan Conference platform, and in many 
 a private discussion ; and when in this connexion words 
 are used like those which in a limited sense we admitted 
 just now, "That religion should be absolutely free from 
 State control is impossible," is it not plain that the words 
 themselves have begun to carry a totally different force 
 and meaning from that which we admitted ? They have 
 now become the erection into an abstract principle, and the 
 enunciation in the form of a necessary axiom, of that rule 
 of procedure which is asserted in the extracts just given, — 
 and no doubt asserted truly, — to be the existing practice 
 of the English courts. They now lay down that it is 
 inevitable, in the nature of things, that any questions, 
 religious or otherwise, in any religious community, estab- 
 lished or non-established, must (if the dispute be suf- 
 ficiently persevered in) come up, for their really ultimate 
 decision, before the court of the civil power. Is it at all 
 too much to say that it is in this sense, and with this pur- 
 pose, that maxims like that which has been quoted are 
 continually being laid down ? laid down as at once of 
 indisputable authority, and as the basis alike of many 
 arguments, and of many homilies ? 
 
 We have now reached the precise question which it is 
 the purpose of this paper to raise. The question is this : 
 Is it in the least necessary in the nature of things, or is it 
 in the least desirable, that questions of Church discipline 
 (such as almost all the " disputes" in religious communities 
 practically are) should receive their last word of settle- 
 ment from civil courts ? I decline to be answered by any 
 evidence as to what does happen in our law-courts now, 
 whether in reference to the Established Church or to
 
 really impossible ? 
 
 Dissenters. I am ready to concede absolutely that this is 
 the existing and traditional maxim and practice of English 
 courts. That fact is, of course, a weighty one. But; 
 whatever may be the exact significance of that fact, I 
 deny that it is any proof that the thing is necessary in the 
 nature of things, or that it could not possibly be otherwise. 
 I deny that it is any adequate justification for that popular 
 sense which would, I believe, at present be almost uni- 
 versally understood to attach to such a maxim as " That 
 religion should be absolutely free from State control is 
 impossible." 
 
 Does the received practice of the English courts repre- 
 sent in this matter what is absolutely necessary or right ? 
 
 That it is by no means necessary in the nature of things 
 is indeed a proposition easily demonstrable. But I submit 
 that any such demonstration, however obvious it may be, 
 is at this moment of very real importance. The circum- 
 stances of the present time make it exceedingly desirable 
 that the minds of Churchmen should look forward as 
 clearly as possible to the issues, and to the different al- 
 ternatives, which may open themselves in the future. 
 But so long as it is at all generally supposed that the 
 ultimate determination of its religious questions by civil 
 courts is a necessity which no religious community can 
 escape, so long the whole conception as to the conditions 
 of the future problem, and as to the lines upon which we 
 ought even now to be advancing to meet the future, is, in 
 one most important respect, fatally prejudiced and over- 
 clouded. And yet at this moment I venture to submit 
 that it is, very generally indeed, so supposed ; that is to 
 say, that it is really a general belief not only that the 
 courts do act in this way, but that there is no alternative 
 possible but that they should act in this way : I submit 
 that this supposition does, in effect, go a very long way 
 towards preventing Churchmen in general from even con- 
 sidering how far the present condition of things in this 
 respect is, or is not, desirable (for no doubt it is futile to 
 argue upon the desirableness of what could not be other- 
 wise) ; I submit that the prevailing supposition has really
 
 Ic 
 
 8 Is the Independence of Church Courts 
 
 no other ground than the admitted fact of the present 
 English maxim and practice : and I submit, finally, that 
 if once the phantom of its supposed necessity were really 
 and completely dissipated, there are grounds for thinking 
 that the wisdom of the English people, as it ceased to 
 think the existing practice a necessity, might very pro- 
 bably cease also to think it in any degree desirable or 
 wise. 
 
 If the present condition is arbitrary, and not necessary, 
 what other alternatives are open beside it ? 
 
 I am concerned only to make clear my alternative, 
 without staying to ask whether it is, or is not, the only 
 form of alternative possible. And I may add that, at the 
 present stage, I am only bound to shew that an alter- 
 native is fairly conceivable. Whether it would or would 
 not be also reasonably practicable in this country or in 
 this generation, is a question which I do not as yet profess 
 to have reached. 
 
 But surely a condition of society is at least imaginable, 
 in which ecclesiastical societies would be allowed to frame 
 their own rules of discipline, and to carry them out, de- 
 ciding for themselves all questions that might rise within 
 their own body as to doctrine, ritual, or procedure, — dis- 
 contents or complaints of aggrieved individual members 
 or ministers notwithstanding. Of course there would be 
 a limit to the scope of ecclesiastical discipline. The reli- 
 gious tribunals might pronounce whether an accused man 
 was, or was not, heretical, — was, or was not, capable of 
 retaining his post as an official of his society ; and if they 
 pronounced him heterodox, or insubordinate, or otherwise 
 unfit, they might proceed to dismiss him : but of course 
 in no case would they be able to interfere with his citizen- 
 ship, or any of its rights, — they could not order him, for 
 punishment, to be fined, or flogged, or imprisoned. Neither 
 could they, of course, except at their own peril, impose 
 » upon any of their members the duty of making overt war 
 against the fundamental laws of society. Subject, how- 
 ever, to the principle that they could not interfere with 
 citizenship, or make war against society, their decisions
 
 really impossible ? g 
 
 upon all questions involving the rules of their own com- 
 munity or the enjoyment of its privileges might be final, 
 and might be accepted as such by the civil tribunals ; so 
 that the civil tribunals, without re-trying the question of 
 rules or privileges, would (if need were) compel recalci- 
 trant members to submit, on matters belonging to the 
 discipline of their community, to the decisions formally 
 given by the formal tribunals of the community. 
 
 It would of course be necessary that religious commu- 
 nities should constitute tribunals and procedure, which 
 might be able to be recognized as the accepted tribunals 
 and procedure of the community. Till this were done it 
 would be impossible to say whether the case of Mr. A. or 
 Mr. B. appealing for the retention of their position in such 
 or such a religious body had ever been properly decided 
 upon its merits by the body they claimed to belong to. 
 But the moment it can be said Mr. A. claims or appeals 
 so and so — the proper tribunal or synod of his religious 
 society has tried the case according to its own rules, and 
 has pronounced against him ; from that moment it is pos- 
 sible for the civil tribunals to say, " We have nothing what- 
 ever to do with Mr. A.'s claims : he belongs to a society 
 which has, and ought to have, its own rules, and its own 
 power of interpreting its own rules : if they decide that 
 under their rules he is not one of them, then he is not one 
 of them ; if they attempt, indeed, to assault or maltreat 
 him we of course are ready to afford all legal protection : 
 but for us, after their decision, to attempt to re-try the 
 question on its merits, whether he is or is not loyal to 
 their doctrine, whether he is or is not to be accepted by 
 them as an orthodox representative and officer, would be 
 much worse than superfluous. It would not only be use- 
 less, but in reference to the proper distinction between 
 the political and religious administrations, it would be 
 disastrously unwise, and full of nothing but peril to the 
 peace and order of the commonwealth." 
 
 But there is one point which, according to the existing 
 manner of thought on these subjects, would almost cer- 
 tainly be urged here. It would be said, these things might
 
 io Is the Independence of Church Courts 
 
 perhaps be conceivable, if no questions of position or pro- 
 perty were involved. But every such decision necessarily 
 affects, not only the doctrinal position of a community, but 
 the pecuniary position of an individual ; and all questions 
 affecting position or property must in the nature of things 
 come before State courts, and therefore the position you 
 speak of is not really imaginable. Now if the Ecclesias- 
 tical tribunals were affecting to inflict fines by way of 
 penalties, whether of £5 or £5,000, this objection might 
 be valid : but they do not. The most which they do, or 
 would do, is to declare that a certain ecclesiastical posi- 
 tion is forfeited ; and the pecuniary loss complained of is 
 only a necessary incident (direct or indirect) of the eccle- 
 siastical position. It is true that Mr. A.'s private estate 
 cannot be touched upon to the extent of a single penny. 
 But Mr. A. has no private right whatever to the salary, or 
 other advantages, which are the incidents of his ecclesias- 
 tical position. If he has forfeited the position, he has 
 forfeited also its emoluments ; and no right whatever 
 which really belongs to him, whether of citizenship or of 
 property, is affected at all. It is necessary that the line 
 of distinction should be drawn in the strongest way be- 
 tween property to which there is any private right, and 
 property to which the only right, actual or possible, is 
 a mere result of the tenure of a particular responsible 
 post. It is a distinction which, broad as it is, appears to 
 be continually lost sight of. I utterly deny that there is 
 any necessary reason, any reason involved in the proper 
 constitution of a state, why decisions which affect property 
 that is of the nature of a salary must be capable of being 
 referred to civil courts. If the Wesleyans appoint an 
 officer with £1,000 a year, chosen on account of his loyal 
 exposition of Wesleyanism, to perform certain functions 
 of importance to the Wesleyan community ; and if he is 
 subsequently dismissed on account of the formal judgment 
 of the Wesleyan tribunals that his teaching is no longer 
 true to their principles, I utterly deny that the fact that 
 the position which he forfeited was a valuable one con- 
 stitutes the slightest reason why the Wesleyan tribunals
 
 really impossible ? 1 1 
 
 should not have been the bodies best able to judge of the 
 weight of the grounds on account of which alone it was 
 proposed to dismiss him, or why the State should be sup- 
 posed to neglect any one of its own essential functions, 
 or any just claim of citizenship on the part of the person 
 concerned, if it declines to review the merits of the decision, 
 but lets it stand as a matter of course, as a point decided 
 by those to whom it belonged to decide it, as much if 
 salary is involved as if it is not. 
 
 I do not, indeed, deny that there might possibly be 
 issues, collateral to the main one, which might have to 
 come before the civil courts, and might carry damages ; 
 as e.g. if a man were avowedly dismissed on the ground 
 of immorality or drunkenness, who could prove to the 
 satisfaction of the civil court that the imputation in ques- 
 tion was false in fact and slanderously and maliciously 
 made and received against him, it is possible that he might 
 claim from the court — not, indeed, forcible restitution to 
 the ecclesiastical position (which the court would have 
 nothing to do with), — but adequate, and possibly very 
 heavy damages, for the stigma falsely affixed upon his 
 character. But without staying to think further of other 
 extreme or exceptional hypotheses which might make 
 an indirect appeal to civil courts still undeniable, I do 
 claim that as a general principle, and in all ordinary cases 
 of discipline such as have come in fact before the English 
 courts in recent years, whether from the Established Church 
 or from Dissenting bodies, it is entirely conceivable as 
 a working condition of things, that the civil power should 
 leave to the ecclesiastical the entire determination of its 
 own questions, and the entire exercise of its own dis- 
 cipline ; and should accept the formal decisions of the 
 accredited tribunals of the several bodies as the proper 
 decisions of those bodies, to which all citizens who chose 
 to be members of the bodies must as a matter of course 
 submit — their own natural rights of citizenship being al- 
 ways untouched — so long as they desired to maintain 
 their membership. The State would thus be absolved 
 from the somewhat absurd possibility of solemnly pro-
 
 12 Ts lllC Independence of CkUTCk Courts 
 
 nouncing the ■ Baptist' orthodoxy, of one whom the whole 
 Baptist body had repudiated as unorthodox ; or the in- 
 admissibleness in the Church of teaching- or practices 
 which the Church herself had formally pronounced to 
 be Catholic. 
 
 I decline to despair of the acceptance of these prin- 
 ciples. I decline to despair of the prospect of hearing 
 them by and by enunciated as incontrovertible maxims, 
 at once of common law and of common sense. Can we 
 not imagine the sort of severely grave simplicity with 
 which some impartial Law Court in the future might lay 
 down the lines of its accepted theory as to the due relation 
 of secular and ecclesiastical jurisdiction ? lay them down 
 in maxims sweeping and decisive as these ? . . . " The 
 decisions of ecclesiastical courts are final, as they are the 
 best judges of what constitutes an offence against the 
 Word of God, and the discipline of the Church." " Civil 
 courts have duties and responsibilities devolved upon 
 them, and a well-defined jurisdiction to maintain. The 
 Church has more solemn duties, more weighty respon- 
 sibilities, and an authority granted by the infinite Author 
 of all things. We shall not enter in and ' light up her 
 temple from unhallowed fire.'" "We have no right, and 
 therefore will not exercise the power, to dictate eccle- 
 siastical law. We do not aspire to become de facto heads 
 of the Church, and, by construction or otherwise, abrogate 
 its laws and canons." "The Church should guard its own 
 fold ; enact and construct its own laws ; enforce its own 
 discipline ; and thus will be maintained the boundary be- 
 tween the temporal and spiritual power." The Church 
 members "joined the Church with a knowledge of its 
 defined powers, and as the civil power cannot interfere 
 in matters of conscience, faith, or discipline, they must 
 submit to rebuke or excommunication, however unjust, 
 by their adopted spiritual rulers." " Freedom of religious 
 profession and worship cannot be maintained, if the civil 
 courts tread upon the domain of the Church, construe 
 its canons and rules, dictate its discipline, and regulate 
 its trials. The larger portion of the Christian world has
 
 really impossible ? 1 3 
 
 always recognized the truth of the declaration, 'a Church 
 without discipline must become, if not already, a Church 
 without religion.' It was as much a delusion to confer 
 religious liberty without the right to make and enforce 
 rules and canons, as to create government with no power 
 to punish offenders." " In this controversy is involved 
 a greater question, and of deeper moment to all Christian 
 men, indeed to all men who believe that Christianity pure 
 and simple is the fairest system of morals, the firmest prop 
 to our government, the chiefest reliance in this life and 
 the life to come. Shall we maintain the boundary be- 
 tween Church and State, and let each revolve in its re- 
 spective sphere, the one undisturbed by the other? All 
 history warns not to rouse the passion or wake up the 
 fanaticism which may grapple with the State in a deathly 
 struggle for supremacy." 
 
 There is, it must be owned, a trumpet-like ring, and a 
 very sweeping inclusiveness about some of these last ex- 
 tracts ; but does any one suppose them to represent a 
 state of things literally inconceivable ? Can such a re- 
 lation between civil and ecclesiastical courts be found only 
 in the misty places of the imagination ? Is there* anything 
 in the nature of things, anything in the essential constitu- 
 tion of states, to make such an ideal relation impossible in 
 the prose of common life ? 
 
 But even if it be admitted to be in a real sense conceiv- 
 able, we shall still be told, I imagine, that it is not a rela- 
 tion which the practical instincts of modern nations will 
 ever really be content to accept. We shall be told, with 
 I know not what precise delicacy of phrase, — perhaps that 
 1 no state can tolerate the existence of an imperium in im- 
 perio] perhaps that ' every subject retains always an inde- 
 feasible right of appeal to the sovereign power," or under 
 the spell of some other equally celebrated and equally 
 fascinating dictum — that States, even though, if they 
 would, they might do this, yet will never consent to give 
 so much independence to Churches. No inherent neces- 
 sity but the jealousy of States will prevent it. They 
 desire to keep Churches more entirely under their own
 
 14 Is the Independence of Church Courts 
 
 authority. They will not part with any power, with any 
 clement or any means of control. They would be afraid 
 to do it. Out of fear, out of jealousy, out of desire to 
 control and restrain, out of anxiety as to the disorders 
 and discontents which might grow out of overmuch inde- 
 pendence—they migJit indeed do it, but they never will. 
 
 Now I might well argue in reply to such an assertion 
 of jealousy, that the conclusion supposed to follow from 
 it was, even upon the hypothesis, mistaken and impolitic 
 in the highest degree. The State will best maintain its 
 own dignity and authority, and the order and contentment 
 of all its citizens, not by retaining in its own hands the 
 maximum of direct authority, but rather by devolving as 
 much as possible, retaining so little only as is indispens- 
 able. Every step in the practical independence of Churches 
 is a step, not to say a stride, in the direction of national 
 contentment and security. The nation as such, and from 
 its own point of view, ought earnestly to desire such a 
 consummation. The task of deciding all the doctrines of 
 all the Churches, the burden of universal papacy, is a bur- 
 den heavier, and more dangerous, than it can bear. 
 
 But to develope arguments such as these is hardly part 
 of my present purpose. I prefer to ask whether, already, 
 the instincts of practical nations have not given the very 
 answer which some of us are inclined to think that they 
 can never give. Does not the testimony of facts already 
 shew that the practical immunity of ecclesiastical tribunals 
 from all State revision whatsoever, is not conceivable only 
 but an accepted and most living reality in the States of 
 the modern world ? and if this be so, is it even necessary 
 to plead, that the contrary practice in England has not 
 been conducive to greater smoothness among us of rela- 
 tions between Church and State, greater contentment 
 amongst citizens, or, by consequence, greater national 
 dignity or stability ? 
 
 I point to two instances only, but they appear to be 
 the two which should naturally be of greatest weight as 
 examples pertinent to the case of our own Church in 
 England. Besides the Church of England itself (whose
 
 really impossible f 1 5 
 
 condition in this respect is the point now in question) 
 there is one other conspicuous instance of a Church 
 1 Established ' under the British Crown and Constitution ; 
 that is the ' Established Church of Scotland.' On the 
 other hand, if we wish to see the bearings of the matter 
 apart from Establishment, by far the most considerable 
 instance of a non-established Anglican Church is the 
 ' Protestant Episcopal Church ' of America. But whether 
 we look to the great alternative instance of an Anglican 
 Church non-established, or to the great alternative instance 
 of a non-Anglican Church Established under the British 
 Empire, in either case, strange to say, we see in full ope- 
 ration that very condition of things which many of our 
 friends at home still seriously regard as hopelessly imprac- 
 ticable at least, if not inconceivable. 
 
 As setting forth the accepted doctrine on this subject of 
 the United States of America, there is an elaborate Ame- 
 rican judgment printed in full in the appendices to the 
 Report of the Ecclesiastical Courts Commission. The 
 judgment is that of the Supreme Court of Illinois, and 
 was given in January, 1871. But its significance is even 
 wider than its direct authority ; for it is introduced into 
 the English Blue Book not only on the ground that "the 
 very full way in which the relations between the Anglican 
 Church and the State in America are gone into seems to 
 make it desirable that it should be given, at length," but 
 also apparently because "that part of the doctrine laid 
 down which is agreed to by the whole court appears to be 
 generally recognized in the United States." 
 
 What, then, is the nature of the doctrine there laid 
 down ? Possibly it may be a surprise to some who did 
 not at the moment recognize them, to hear that all those 
 somewhat ringing quotations which were made two or 
 three pages ago, are taken verbatim et literatim from the 
 text of this formal, and representative, judgment. It may 
 be added that they all (with the possible exception of the 
 second extract) are taken from that part of the judgment 
 which was " agreed to by the whole court." 
 
 The general principles, then, upon which American
 
 1 6 Is the Independence of Church Courts 
 
 State courts would approach — or decline to approach — 
 such questions are singularly clear. But it will be worth 
 while to describe the case itself a little more exactly. A 
 clergyman was accused of omitting certain acts or words 
 which the rule of the Church required him to make use 
 of in public service, but to which he himself entertained 
 objections on doctrinal grounds. The case was tried 
 before the tribunal provided in the diocese for such a 
 purpose ; and the clergyman was condemned and de- 
 prived of his position. He thereupon made appeal to the 
 civil courts. The grounds of his appeal which are mate- 
 rial were of the following nature: (i) that the diocesan 
 tribunal, purporting to be constituted according to the 
 Canons of the Church, was in fact not constituted strictly 
 in accordance with those Canons ; (2) that the diocesan 
 tribunal did through prejudice decide unfairly upon the 
 merits of the case before it ; (3) that inasmuch as the 
 clergyman's salary and position were involved, and as 
 indeed the very right to preach was in itself property, 
 therefore the deprival of these was an infringement of the 
 clergyman's civil rights ; and that for this cause, if for no 
 other, it was necessary that the diocesan sentence should 
 be reviewed by the courts. The court decided against 
 the clergyman on all three points. It not only decided 
 against him, but decided against his right to a hearing 
 upon the merits of his arguments. It did so in respect 
 of the second and third of these three pleas unanimously ; 
 in respect of the first not unanimously but by a majority. 
 The decision of the majority in respect of the first plea 
 was of this nature. After alleging the facts that the dio- 
 cesan officials had intended and attempted to organize a 
 proper court for his trial, and that the clergyman com- 
 plained of a misconstruction or neglect of the canons on 
 their part, and a consequent want of authority in their 
 tribunal to try him, they say, "The same point was made 
 to that [i.e. the Diocesan] court, and its power denied. It 
 was urged with the same earnestness, and enforced with 
 the same arguments, there as here. That court overruled 
 the objection, and decided that it had jurisdiction. Five 

 
 really impossible ? 1 7 
 
 intelligent clergymen of the Church presumed to be deeply 
 versed in Biblical and canonical lore, were more competent 
 than this court to decide the peculiar questions raised. 
 Why should we review that, and not every other decision 
 which involved the interpretation of the Canons ? It is 
 conceded that when jurisdiction attaches, the judgment 
 of the Church court is conclusive as to purely ecclesiastical 
 offences. It should be equally conclusive upon doubtful 
 and technical questions, involving a criticism of the canons, 
 even though they might comprise jurisdictional facts. It 
 requires no more intellect, information, or honesty, to 
 decide what is an ecclesiastical offence, than to determine 
 the authority of the court according to the canons. The 
 distinction is without a difference." 
 
 To this particular doctrine, however, in the judgment, 
 viz. that the diocesan court was the exclusive judge of its 
 own jurisdiction, two out of seven judges demurred 3 -. 
 
 " The statement of the two dissentients is as follows : " We concur in the 
 decision of the case at bar announced in the foregoing opinion, and we also 
 concur in the opinion itself, except as to one principle therein. We under- 
 stand the opinion as implying that in the administration of ecclesiastical 
 discipline, and where there is no other right of property involved than the 
 loss of the clerical office or salary, as an incident to such discipline, a spiritual 
 court is the exclusive judge of its own jurisdiction, under the laws and canons 
 of the religious associations to which it belongs, and its decision of that 
 question is binding upon secular courts. This is a principle of so grave 
 a character, that, believing it to be erroneous, we are constrained to express 
 our dissent upon the record. 
 
 " We concede, that when a spiritual court has once been organized in con- 
 formity with the rules of the denomination of which it forms a part, and when 
 it has jurisdiction of the parties and of the subject-matter, its subsequent 
 action in the administration of spiritual discipline will not be revised by the 
 secular courts. The simple reason is that the association is purely voluntary, 
 and when a person joins it he consents that for all spiritual offences he will 
 be tried by a tribunal organized in conformity with the laws of the society. 
 But he has not consented that he will be tried by one not so organized, and 
 when a clergyman is in danger of being degraded from his office, and losing 
 his salary and means of livelihood by the action of a spiritual court, unlawfully 
 constituted, we are very clearly of opinion he may come to the secular courts 
 for protection. It would be the duty of such courts to examine the question 
 of jurisdiction, without regard to the decision of the spiritual court itself, and 
 if they find such tribunal has been organized in defiance of the laws of the 
 association, and is exercising a merely usurped and arbitrary power, they 
 •hould furnish such protection as the laws of the land will give. We consider 
 .his position clearly sustainable, upon principle and authority." 
 
 C
 
 1 8 Is the Independence of Church Courts 
 
 There is, then, a clear difference of opinion upon the 
 one question, whether or no a civil court is at liberty, 
 before compelling acceptance by Church members of the 
 decision of a Church tribunal, to entertain or examine for 
 itself the question whether that Church tribunal was re- 
 gularly constituted according to the rules of the Church 
 under which it professes to act ; though even here a ma- 
 jority of five judges to two affirmed the immunity of the 
 Church tribunal from all such examination. But upon 
 every other point raised the decision of the court was 
 unanimous. As to the plea that the clergyman's citizen- 
 rights were infringed by the penal withdrawal of emolu- 
 ments, or of that authorized status as minister and 
 preacher, which was itself (he urged) of the nature of 
 1 property/ or as to his claim to a ' vested right ' in his 
 status or office, they say, " No parish can form a part of the 
 diocese of Illinois unless with the consent of the Bishop, 
 and the formation of a constitution, as provided in 
 Canon 8, by which it ' accedes to, recognizes, and adopts 
 the constitution, canons, doctrine, discipline, and worship 
 of the Protestant Episcopal Church.' The minister hav- 
 ing been previously ordained, and pledged conformity to 
 the rules and doctrines of the Church, is installed as 
 Rector, according to Canon io, by the production of a 
 proper certificate from the Bishop. The vestry is re- 
 quired, by Canon 12, to obtain the amount stipulated for 
 his support by 'the gathering of offerings in divine service, 
 or by the procurement and collection of subscriptions or 
 of pew-rents.' It would be a mockery of language to 
 say that the agreement for a salary thus made consti- 
 tuted a vested right, a right which could not be sus- 
 pended. The salary depended upon the continued per- 
 formance of the duties of rector. The contract must be 
 construed and enforced by reference to the canons which 
 form a part of it. If the minister was suspended or 
 deposed for any ecclesiastical offence the payment would 
 cease. . . ." 
 
 " It is also claimed that there is value in the right to 
 pursue any lawful avocation. Of this we entertain no 
 doubt. We have no doubt either of the absolute right
 
 really impossible? 19 
 
 of every citizen under our constitution to teach and preach 
 the Gospel to whomsoever will listen. But in an organ- 
 ized Church, with written or printed rules, and established 
 doctrines and modes of worship, the right is qualified. 
 The continuance, power, and emoluments of the position 
 depend upon the will of the Church. The right is con- 
 tingent and restricted, and as a thing of value is very 
 much lessened. The sentence of the Church judicatory, 
 in a proper case, deprives of the position, and salary and 
 emoluments are gone." 
 
 It is, no doubt, obvious to remark that the facts here 
 recounted are in some respects different enough from 
 those with which we are familiar ; but across all such 
 differences the leading principle of the judgment on this 
 point will be none the less significant, viz. that emoluments 
 or privileges incidental to the tenure of an ecclesiastical 
 position can neither possess nor confer any title more 
 durable than the position itself to which they belong, nor 
 are they, in any necessary or natural sense, the ' property ' of 
 the incumbent of the office. If we in England have in any 
 degree artificially made them so, that is a peculiarity of our 
 own, the value of which may usefully be called in question. 
 But perhaps it needs neither Royal Commissions, nor Blue- 
 books, nor Liberationist energies, nor studies of America 
 or any other country, to make thoughtful Churchmen 
 desire that the system of ' freehold ' tenure of English 
 incumbencies might be greatly modified. There is always 
 a slightly strange ring about the word ' Freehold ' as 
 applied to a Pastor's position. And yet it is just this 
 word, and fact, of ' Freehold ' which seems sometimes to be 
 treated as though it were our one foundation-principle. 
 There is a sort of mysterious spell and fascination about it. 
 We are warned not to come near to touch or to question 
 it. It is clung to, it is idolized, with an almost super- 
 stitious reverence. But it is the stronghold of the scan- 
 dals which discredit and weaken us through the length 
 and breadth of the land. 
 
 As to any appeal upon the merits of the case itself, the 
 answer of the court, with its sweeping repudiation of the 
 
 C 2
 
 20 Is the Independence of Church Courts 
 
 functions thus attempted to be thrust upon it, has been 
 already sufficiently given in the vigorous language of the 
 quotations upon pp. *6; ij. Without repeating these 
 again, we may add to them an extract or two more. 
 First there are the words (which could not conveniently 
 be quoted then) of semi-apology for entertaining or notic- 
 ing some parts of the argument at all. The Court preface 
 the substantial judgment by saying, "Without asserting 
 the power of this Court in cases of this character, yet on 
 account of the earnest and elaborate argument of counsel, 
 we will notice the objection that the spiritual court had 
 no authority to adjudicate upon the alleged offence." 
 Then, a little further on, they quote, and accept, the follow- 
 ing language of another typical judgment in a somewhat 
 similar case : " The only cognizance which the Court will 
 take of the case is to inquire whether there is a want of 
 jurisdiction in the defendant to do the act which is sought 
 to be restrained. I cannot consent to review the exercise 
 of any discretion on his part, or inquire whether his judg- 
 ment or that of the subordinate ecclesiastical tribunal can 
 be justified by the truth of the case. I cannot draw to 
 myself the duty of serving their action, or of canvassing 
 its manner or foundation, any further than to inquire 
 whether, according to the law of the association to which 
 both of the parties belong, they had authority to act at all. 
 In other words, I can inquire only whether the defendant has 
 
 the power to act and not whether he is acting rightly 
 
 The refusal of the defendant to issue a commission to take 
 testimony, his refusal to grant a new trial, the alleged 
 misconduct of one of the court, are all matters which 
 relate to the mode of procedure, and not to the right to 
 proceed ; and I repeat that it is the latter only that I can 
 take cognizance of." 
 
 There is still one more quotation to be offered from the 
 text of the judgment. " The minister in a legal point of 
 view is a voluntary member of the association to which he 
 belongs. The position is not forced upon him, he seeks 
 it. He accepts it with all its burdens and consequences, 
 with all the rules, laws, and canons subsisting or to be
 
 really impossible? 21 
 
 made by competent authority, and can, at pleasure and 
 with impunity, abandon it. If they were merciful, and re- 
 gardful of conscientious examples, he knew it; if they were 
 arbitrary, illiberal, and attempted to chain the thoughts 
 and consciences, he knew it. They cannot, in any event, 
 endanger his life or liberty, impair any of his personal 
 rights, deprive him of property acquired under the laws, 
 or interfere with the free exercise and enjoyment of re- 
 ligious profession and worship, for these are protected by 
 the constitution and laws. While a member of the asso- 
 ciation, however, and having a full share in all benefits 
 resulting therefrom, he should adhere to its discipline, 
 conform to its doctrines and mode of worship, and obey 
 its laws and canons. If reason and conscience will not 
 permit, the connexion should be severed." 
 
 And now we have done with this most striking and 
 suggestive judgment, and with the conception which it so 
 vigorously sets forth as to the proper relations of civil and 
 ecclesiastical discipline. It can hardly be necessary to 
 disclaim the supposition that it is applicable in all points, 
 as it stands, to the existing condition of things in Eng- 
 land. But at least for the purpose for which it was 
 adduced it is most pertinent, and most effective. It 
 demonstrates incontestably that it is not ideally only 
 but most rationally and practically possible, in the most 
 prosaic and modern constitution of things, for the de- 
 cisions of ecclesiastical tribunals upon questions of eccle- 
 siastical things and persons to be accepted, without re- 
 view, as conclusive, by the highest State courts, if any one 
 should be so ill-advised as to attempt to move the State 
 courts to review or restrain them. It shews that the 
 American courts not only see their way to affirming this 
 independence, but that they are ready to affirm it in 
 vehement — I had almost said impassioned — language, as 
 the one great safeguarding principle against indefinite 
 confusion and peril. " Shall we maintain the boundary 
 between Church and State, and let each revolve in its 
 respective sphere, the one undisturbed by the other ? All 
 history warns not to rouse the passion or wake up the
 
 22 Is the Independence of Church Courts 
 
 fanaticism which may grapple with the State in a deathly 
 struggle for supremacy." 
 
 Such is the condition of things with a non-established 
 Church in the midst of a democracy ; a condition essen 
 tially different, quite as much from that of any non-Es- 
 tablished as from that of the Established Communion 
 amongst ourselves. No doubt it cannot but occur to 
 those who read the account of it, and notice the difference 
 of the circumstances implied, to ask themselves how far 
 the relation described is to be connected, in the way of 
 consequence, either with the democratic principle of the 
 Constitution, or with the fact that the Church is there in 
 the simple position of a voluntary body. And there is 
 sometimes a disposition to lay it down that Independence 
 and non-Establishment stand in a necessary connexion 
 with each other ; and that a Church which accepts the 
 privileges of Establishment must necessarily purchase 
 them by a greater or less surrender of liberty. 
 
 To this opinion we will refer again presently. Mean- 
 while that this independence of the American Church 
 is not inseparable from either of the two conditions, non- 
 Establishment or Democracy, is shewn sufficiently plainly 
 by the fact that the Scottish Kirk, an Established Com- 
 munion under the British Crown and Constitution, is itself 
 no less independent. We are indeed told, in reference to 
 the Established Church of Scotland, that it would be rash 
 to deny that cases might conceivably arise of such ex- 
 treme departure from the recognized condition of Church 
 settlement, as might possibly be held by the courts to 
 justify interference : but a proviso of such character as 
 this serves really rather to emphasize than to limit the 
 actual independence for all normal purposes whatever. 
 
 The general statement upon the point in the Blue-book 
 appendices runs thus : " No appeal lies to a Civil Court 
 in matters of discipline or on the ground of excess of 
 punishment. But if under the form of discipline the 
 Church courts were to inflict Church censures (involving 
 civil consequences) on a minister for e.g. obeying the law 
 of the land, a question would arise similar to some of
 
 really impossible? 23 
 
 those questions which arose in 1838-43 in connexion with 
 the Strathbogie ministers, and might be brought before 
 the Civil Court on the ground of excess of jurisdiction. It 
 is believed that in no case would the Civil Court entertain 
 an appeal from a judgment of an Ecclesiastical Court on 
 a question of doctrine, or enter on an examination of 
 the soundness of such a judgment before enforcing its 
 civil consequences. 
 
 ''Any questions which have arisen on matters of ritual, 
 such, for example, as the introduction of instrumental 
 music in the services of the Church, or the postures to be 
 observed in public worship, have hitherto been decided 
 exclusively by the Church courts. But it can scarcely be 
 affirmed that cases might not arise of such flagrant de- 
 parture from the ■ form and purity of worship ' established 
 by the Act 1707, appended to the Treaty of Union, as 
 might be held to constitute a violation of the provisions 
 of that Act, and consequently to justify, on the failure 
 to obtain redress from the General Assembly, an appeal 
 to the civil court." 
 
 The position is further illustrated by the quotation of 
 a judgment of Lord Lee in 1880. A minister who had 
 been condemned by the Presbytery, and, after appeal, by 
 the General Assembly, attempted to carry the case to 
 the civil court, on the ground of alleged irregularities in 
 the proceedings. The action, we are told, was at once 
 dismissed as incompetent. The following is an extract 
 from the judgment : — 
 
 u All the questions raised by the complainer are ques- 
 tions of Church law and procedure in a case clearly within 
 the province of the Church courts. In such cases it has 
 always been held that the Court of Session cannot inter- 
 fere upon an allegation that the forms of ecclesiastical 
 procedure have not been observed. As Lord Fullerton 
 said in the case of Campbell, ' If the Presbytery have 
 power to proceed independently of the remit, there is 
 an end of the case. But even if it were assumed that 
 they had not, what is the result ? Only that they, an 
 Ecclesiastical Court, did, in a case clearly within their pro-
 
 24 
 
 Is the Independence of Church Courts 
 
 vince, something which, according to the form of eccle- 
 siastical procedure, they were not entitled to do. But on 
 such a ground the Court of Session is clearly not entitled 
 to interfere.' The opinions of the other judges in that 
 case, and in the later cases, appear to the Lord Ordinary 
 quite conclusive against the competency of interfering 
 upon such allegations as are here presented. Thus the 
 Lord President Boyle, in Lockharr/s case, 'We have just 
 \ as little right to interfere with the proceedings of the 
 Church courts in matters of ecclesiastical discipline, as we 
 have to interfere with the proceedings of the Court of 
 Justiciary in a criminal question.' Lord Ivory, as well 
 as Lord Fullerton, explained the distinction between such 
 cases and the Auchterarder and Strathbogie cases b . 
 Again, in the case of Paterson, where a Presbytery was 
 said to have oppressively and illegally proceeded with 
 a prosecution, disregarding medical certificates of the 
 insanity of the accused, Lord President M c Neill laid it 
 down that the Church courts alone could regulate their 
 own order of procedure in regard to the matter. ' If 
 there was anything wrong or irregular in what the Pres- 
 bytery did, I think the proper appeal was not to the 
 court but to the superior Church tribunal. It is said that 
 in the meantime evidence might have been led in sup- 
 port of the charge. But that would have raised a ques- 
 tion of order of Procedure in the Ecclesiastical Court with 
 which we do not interfere.' The opinion of Lord Mon- 
 criefif (L.J.C.) in the case of Wight is still more distinct 
 and emphatic. 'If therefore,' he said, 'this were a case 
 in which we were called upon to review the proceedings 
 of an inferior court, I should have thought a strong case 
 had been made out for our interference. But whatever 
 
 b At the same time, a little further on, Lord Lee remarks : " It is impossible 
 to read the opinion of Lord Ivory and the judges who concurred with him in 
 the final stage of the [Strathbogie] case, without seeing that there was 
 ground for difference of opinion as to the competency of interfering even in 
 the exceptional circumstances there pi-esented." Certainly it may be doubted 
 whether this case, as the one prominent exception quoted, does not do more 
 to prove, than to shake, alike the fact and the credit of the usual rule.
 
 really impossible ? 25 
 
 inconsiderate dicta to that effect may have been thrown 
 out, that is not the law of Scotland. The jurisdiction 
 of the Church courts, as recognized judicatories of this 
 realm, rests on a similar statutory foundation to that 
 under which we administer justice within these walls. It 
 is easy to suggest extravagant instances of excess of 
 power, but quite as easy to do so in regard to the one 
 jurisdiction as to the other. Within their spiritual pro- 
 vince the Church courts are as supreme as we are within 
 the Civil, and as this is a matter relating to the discipline 
 of the Church, and solely within the cognizance of the 
 Church courts, I think we have no power whatever to 
 interfere.' " 
 
 To these quotations from the appendices of the Com- 
 mission's report may be added the following extract from 
 Mr. MacColl's evidence before the Commission : " In de- 
 livering judgment in the case of Sturrock v. Greig (in 
 1849) Lord Justice Clerk Hope used these words: 'The 
 first section (of the Confession of Faith) announces a great 
 truth of the Church, liable to misapprehension, doubtless, 
 but a doctrine which is the foundation of the whole au- 
 thority and government of the Church over its' members, 
 that is, that in the matter of discipline, whether as to doc- 
 trine or evil practice, or non-observance of Church ordi- 
 nances, the Church is exercising a government through 
 its Church officers, appointed by the Lord Jesus, distinct 
 from the civil magistrates. Whatever questions have been 
 raised as to the wider effect of this declaration, to which 
 I need not now advert, this is undeniable, that in regard 
 to discipline, the authority of the Church, as a distinct 
 and separate government, is derived from that source. 
 To that declaration, as the foundation of the exercise of 
 Church censure over the members of the Church, I think 
 courts of law must give full effect as much as to any 
 other statutory enactment. It is not our business to con- 
 sider the truth of that declaration ; if it were, I should be 
 prepared to defend it. Neither are we to consider whether 
 it will arm men with alarming power, capable of producing 
 great mischief. The statute has given the remedy in the
 
 26 Is the Independence of Church Courts 
 
 courts which it trusted — in the appeals competent to the 
 superior Church courts.' He goes on to say that the 
 Church courts ' have been trusted as a separate govern- 
 ment. The declaration of the authority under which they 
 act assumes that it must be separately administered, free 
 from control, from subjection, or subordination to civil 
 tribunals. They are distinct and supreme, and the autho- 
 rity under which they sit excludes any inquiry into their 
 motives by civil courts.'" 
 
 " Then in the case of Lockhart v. the Presbytery of 
 Deer, the four judges of the First Division of the Court 
 of Session laid down the law in similar terms. The Lord 
 President said, 'We have just as little right to interfere 
 with the proceedings of the Church Courts in matters of 
 ecclesiastical discipline as we have to interfere with the 
 proceedings of the Court of Justiciary in a criminal 
 question.' " 
 
 Now in the face of all this unimpeachable evidence, it 
 is surely not too much to assert, that much of the current 
 thought and language in England about the impossibility 
 of the ultimate independence of spiritual courts has been 
 shewn by the work of the Commissioners, not with any 
 greater or less amount of probability, but to absolute 
 demonstration, to be simply a fallacy. It is surely not 
 too much to claim that the current language on the sub- 
 ject — that confident laying down of sweeping principles in 
 an abstract form — should be discontinued ; and that those 
 who still assert the ' impossibility ' should understand and 
 admit the very different and qualified sense in which alone 
 their assertion is admissible at all. What the assertion 
 may mean still, and what it can only mean, is (i) that 
 such independence is not compatible with the received 
 tradition and practice of English law; and (2) that any 
 change in this tradition and practice, such as to admit of 
 it, is (in the opinion of the particular assertors) utterly im- 
 probable. The first of these two propositions is undeni- 
 able. The opinion which follows may or may not be true. 
 But it is, in any case, arguable ; and I have to submit that 
 it greatly concerns the present generation, alike on the
 
 really impossible ? 2J 
 
 side of the Church and on the side of the State, to ex- 
 amine it far more narrowly, and with far more openness 
 of mind, than has been even possible for those to whom 
 the ' impossibility ' of independence has appeared a fore- 
 gone conclusion. 
 
 I said just now that it is often asserted that (whatever 
 may be the case with voluntary societies) establishment 
 necessarily involves a surrender, more or less, of ecclesias- 
 tical liberty. The assertion has a fair and plausible sound, 
 and is apt to be therefore accepted without scrutiny ; and 
 yet it is a singularly hollow one. For first, it has been 
 already pointed out that establishment and ecclesiastical 
 independence do actually coincide in the case of the 
 Scottish Kirk. And more than this ; the Scottish Kirk 
 is more completely independent of State control than any 
 merely voluntary association could be. I quote a para- 
 graph from Mr. Spencer Holland's " Summary " of the 
 Report of the Commission : — 
 
 " Such being the admittedly independent position of the 
 Church courts in Scotland, its Establishment as a fact 
 secures it more liberty of action than if it were an inde- 
 pendent corporation. 
 
 " ' As to forms of procedure, the Established Church of 
 Scotland,' says Mr. ^Eneas Mackay in his text-book of 
 Scotch Law, ' has wider powers (than a Dissenting Church), 
 it having a statutory form of legislation as well as a statu- 
 tory Judiciary, and it can make laws or rules of proce- 
 dure having statutory authority ;' while as to Dissenting 
 Churches, although they equally may delegate govern- 
 mental duties to representative bodies [here the quotation 
 from Mr. Mackay is resumed], 'a question may, however, 
 be raised as regards their constitution which could not be 
 raised as regards the Courts of the Established Church, 
 namely, how far provisions excluding the jurisdiction of 
 the Civil Courts are legal ?' 
 
 " Again, where the existence or constitution of the 
 Established Church comes in any way before a civil court 
 it is accepted as a Body having forms and procedure re- 
 cognized by and known to the law, whereas a Dissenting
 
 28 Is the Independence of Church Courts 
 
 Church would have to prove its terms of association and 
 contract. 
 
 u * The former (says Mr. Mackay) possesses a jurisdiction 
 proper directly derived from the Crown, while the latter 
 has only a prorogated jurisdiction derived from the con- 
 sent of its members.' 
 
 " This, as he says, is the sole distinction between the 
 position of the Established Church or any other religious 
 corporation in the eyes of the law ; a distinction, as has 
 been pointed out, to the advantage of the Established 
 Church." 
 
 Now without going further into this, or caring to settle 
 how far what is here said agrees, or not, with the dicta of 
 the American judgment, it may be useful, from the point 
 of view of this last extract, to canvass for a moment the 
 meaning of the supposition that an Established Church is, 
 or should be, less "free" than a non-Established one. I 
 submit that such a view, however plausible at first sight, or 
 however generally held, will not bear examination for 
 a moment. It absolutely depends upon a conception of 
 the nature of Establishment, which is alien to every pos- 
 sible reading of historical facts ; a conception on which, 
 had it been true, the Church never would have been estab- 
 lished. Moreover it so completely inverts the leading 
 idea of ' Establishment,' as to make it a condition of ex- 
 ceptional disability instead of being one of exceptional 
 privilege. And yet surely if Establishment means any- 
 thing, it means at least this ; that the religious association 
 which is 'established' is more accepted by the State, more 
 trusted, and endowed with more powers and facilities than 
 those which are not established. Men allow themselves 
 to speak as though the essence of Establishment were 
 that the State gave to the Church money, or something 
 analogous to money ; — sometimes as though by its sup- 
 posed gift of money the State purchased, and paid hand- 
 somely for, the right of trampling at will over the Church ; 
 or even as though, by authenticating, it had actually 
 created a Church, where no Church before was ! No 
 doubt the State may give money, or it may not ; but in
 
 really impossible ? 29 
 
 any case this is but an accessory, What is of the essence 
 of Establishment is that the State accepts, facilitates, 
 authorizes with the stamp of secular as well as spiritual 
 authority, that which the Church is, whether established 
 or no. The Church is what it is. The Church is, before 
 it is established ; for otherwise certainly no establishment 
 ever will bring it into being. The State, so far as it es- 
 tablishes, accepts the Church for what it is, and authen- 
 ticates it to the nation. The State has no knowledge of 
 unestablished communions : but the Church which the 
 State establishes is known to the State, and acknow- 
 ledged, and authorized by it. Its standards, its principles, 
 its constitution, its procedure, the nation adopts and in- 
 corporates as a part of the national system. Is it not 
 an extraordinary inversion of any meaning that could 
 ever rightly attach to the conception of Establishment, 
 to represent that the Established Church means the one 
 among Churches that the State distrusts, gags, fetters 
 with disabilities ? that all others are free, but that she 
 alone is in servitude ? that all others have, or may have, 
 rules, principles, authorities whom the State may, if it 
 will, treat and listen to with respect, but that she whose I 
 whole system the nation has in such sense both known/ 
 and trusted that it has received and adopted it as being, 
 in its view, the truest and best presentment of Divine! 
 Truth, that she by virtue of this very act of acceptance 
 and homage should become the one society, professing 
 to be divinely constituted as a Church, which is to be 
 held, for ever and necessarily, incapable of finding out 
 or of determining any of her own principles or practices 
 for herself? Certainly this is something as remote as pos- 
 sible from anything that ' Establishment ' ever was his- 
 torically conceived or intended to mean. And if this is 
 what statesmen understand by it now, or if it is for this 
 that they or any of them desire to maintain Establish- 
 ment, then the sooner it is plainly avowed that the so- 
 called position of privilege means nothing really but the 
 most degrading of servitudes, the better it will be for 
 us all.
 
 30 Is the Independence of Church Courts 
 
 It is probable indeed that there arc very few, other 
 than professed enemies, who would acknowledge such 
 a principle. But there are a great many who indirectly 
 imply it, and use it, and build upon it. There are a great 
 many who lay down — and think that they are laying 
 down an unimpeachable, almost axiomatic, principle — 
 that the Church by the fact of Establishment has natu- 
 rally and necessarily lost its freedom of life and being 
 as a Church ; as though, indeed, the grip of the State 
 were so fatal, that it could not embrace a Church without 
 strangling it ; as though, in a word, the very title "Estab- 
 lished Church," instead of representing a great historical 
 reality, were a contradiction in terms ! 
 
 Undoubtedly the truth ought to lie the other way. 
 The position of an Established Church ought to be better, 
 not worse, than that of an unestablished. Whatever 
 amount of recognition or respect is capable of being paid, 
 in America or elsewhere, to a Church which is unes- 
 tablished, a fortiori, much more of the same respectful 
 recognition ought to be paid, as a consequence of course, 
 if the Church were recognized and accepted as the Estab- 
 lished Church of the nation. It cannot be admitted for 
 a moment that the freedom can reasonably be an incident 
 of the non-establishment. The argument from the one 
 to the other, from the non-established to the established, 
 can only be an a fortiori argument. In the case of Scot- 
 land it has been indicated already that this is so, at least 
 to a perceptible degree, in fact. It should be an essential 
 element in the fact of Establishment. Establishment 
 without this is a caricature of Establishment. 
 
 It may be worth while to notice incidentally one point 
 about the Scottish procedure which is sometimes urged 
 as if it constituted an answer to any arguments based 
 on the autonomy of the Established Church of Scotland. 
 We are reminded that the General Assembly (which is the 
 final court) "is composed of representatives elected an- 
 nually by every Presbytery in the Church, and numbers 
 about 440 members, in the proportion of about 260 minis- 
 ters to 180 elders; the four universities and the royal
 
 really impossible ? 31 
 
 burghs also send representatives to the Assembly ;" and 
 we are asked whether if we emulate their independence 
 we are prepared to imitate the constitution of their Assem- 
 bly by a large infusion of laymen in our governing bodies ? 
 As an argument nothing could be more irrelevant than 
 this question. We might quite as well be asked whether 
 because we admire their position in some points, we are 
 therefore ready to adopt their Presbyterianism. The point 
 is that their final Church Court (however according to 
 their system it may be constituted) is really final, — un- 
 revised by either State or Crown. If the question is 
 meant to imply that the court is any more a civil, or any 
 less an ecclesiastical court, because lay or semi-lay persons 
 are (by the constitution of their Church) seated as mem- 
 bers, it is simply a confusion of thought on the part of 
 the questioners. And yet on no other ground is the ques- 
 tion strictly relevant. If, however, it is merely meant 
 that we should do well to consider in what way, if we 
 could obtain a similar independence, our Church courts 
 should be constituted, and how far both in them and in 
 Councils it is right to hear the voice of laymen, the 
 answer is simple. Of course we should do well* to con- 
 sider. Everything ought to be considered. And the par- 
 ticular question of the admission of laymen to such posi- 
 tions, and its limits, appears to be a burden laid specially 
 upon the Churchmen of our own generation. But neither 
 their admission nor exclusion, which is purely an internal 
 Church question, affects in the smallest degree the ques- 
 tion of the compatibility of Establishment and Freedom, 
 or the relation which a Church established ought to bear 
 to the nation. 
 
 We are drawing towards the close of our present 
 argument ; but there are still two matters on which it will 
 be worth while (if it be not too presumptuous) to make 
 some remark, viz. first as to the nature and grounds of the 
 present method in the English Courts ; and secondly, 
 as to the meaning and outcome of the English " Royal 
 Supremacy." 
 
 It may not unnaturally be felt that even if everything
 
 32 Is the Independence of Church Courts 
 
 were conceded which has been either said, or inferred, 
 about the Scottish and American Churches, yet the most 
 that is hereby proved — the most indeed that has even 
 claimed to be proved — is that things can possibly be 
 otherwise than they are in England. Moreover it may be 
 urged that without any insular boasting of the superiority 
 of our own ways we are at least entitled to consider that a 
 system which has grown with our growth in England must 
 have a good practical account to give of itself. It may be 
 urged that the mere fact that the English rule and 
 practice are what they are towards every religious society 
 constitutes an argument of the gravest weight on behalf 
 of them ; and that there is at least undue self-confidence, 
 if not some flippancy, in freely conceding the fact as to 
 English law-courts, and yet ignoring the argumentative 
 weight of the fact. Why should English law-courts and 
 lawyers consistently have taken for granted one view of 
 the proper relation between the courts of the realm and 
 the rules of all religious societies, unless it be that that 
 view is in itself inherently reasonable ? Now if it were 
 impossible to return any direct answer to this question, 
 the argument which is implied in it would be more 
 formidable. But the argument fails, directly an alternative 
 answer can be given. 
 
 Just a word or two to clear the ground first, before 
 suggesting an answer. The conduct of English courts 
 towards the Established Church on the one hand, and 
 towards the " Free Churches M on the other, must be kept 
 as distinct ideas. The thought which is here meant to be 
 suggested is not so much that the English conception of 
 Establishment standing by itself is its own justification, 
 but rather that the treatment by English courts of the 
 " Free Churches M is an argument on behalf of the treat- 
 ment of the Established Church ; or at least that the 
 correspondence between the conduct of the State towards 
 the one and the other, — the fact that State courts even- 
 tually overrule both alike impartially is an argument to 
 prove that she does nothing wrong or unnecessary towards 
 the Established Church. It is implied that if there were
 
 really impossible? 33 
 
 anything oppressive or unjust in the treatment of the 
 State Church, we should see it brought into relief by the 
 contrasted independence of Dissenting Churches ; for that 
 it is extravagant to suppose that there can be anything 
 but the strictness of equity in the conduct of the State 
 towards them. Is not the subjection of the " Free Churches" 
 an evidence that the subjection of the Established Church 
 is no tyranny ? And how except on good grounds of 
 principle and history is it possible to account for the 
 undoubted subjection of the 'Free' Churches? Here lies 
 then the real point of the question ; and to this question 
 in this form it is perhaps not so difficult to suggest an 
 answer. 
 
 For has not the custom of dealing, as law-courts deal 
 now, with the rules of religious societies grown up as 
 a half-unconscious but not indirect result of that theory 
 of the Royal Supremacy, which has traditionally been 
 a sort of underlying principle of all dealing in England 
 with the Established Church ? No doubt it is a growth, 
 and a modern growth, the necessity of dealing with volun- 
 tary Churches at all. When the necessity began to arise, 
 was it not dealt with by men whose minds were saturated 
 with the old. Establishment theory of the Royal Supre- 
 macy ? The practical outcome of that theory has been 
 the reservation, as a matter of tenacious, almost (so to say) 
 of sacred principle, of a revising power to the Crown be- 
 hind all ecclesiastical judicature. If the minds of lawyers 
 have come to be traditionally imbued with this as a sort 
 of sacred principle of the constitution, it is natural that 
 when first religious questions in nonconforming bodies 
 began to be brought up to be dealt with by them, they 
 should, as a mere result of the training and atmosphere 
 of which their lives and their courts were full, take for 
 granted that the civil power was to go to the bottom for 
 itself of every question, interpreting all documents, and 
 pronouncing upon all creeds (as under the shadow of the 
 theory of the Royal Supremacy) without accepting any- 
 thing as authoritative from the members of the religious 
 societies themselves. In the Established Church itself 
 
 D
 
 34 Is the Independence of Church Courts 
 
 something analogous to this was done — though, it is true, 
 upon a different theory and under circumstances which, 
 if scrutinized, would be found to be different. In the Es- 
 tablished Church the Sovereign claimed the power as (so 
 to say) from within the Church, by virtue of his Church 
 authority, as supreme Church governor. But I submit 
 that it was the shadow of this theory and practice in deal- 
 ing with religious questions, which, before men's minds 
 were awake to the nature of the question, caused the law- 
 courts instinctively to deal with nonconformists' disputes 
 in a method of analogous kind ; and on a principle which, 
 when analyzed, is referrible to the Established Church 
 conception of the Royal Supremacy. They acted con- 
 servatively, as was natural ; and by instinct, at a time 
 when the real nature of the choice before them, or its 
 magnitude could hardly have been recognized by any one. 
 Of course it is not meant that they consciously applied 
 the theory of the Royal Supremacy to the case of un- 
 established communions : but that they used ideas which 
 only the case of the Establishment really supplied to 
 them, — not being conscious to what they owed them, or 
 from whence they came. Practically, then, their minds 
 were prejudiced — by the force of their traditional atmos- 
 phere ; and were far less open, than e.g. the American 
 law-courts, to perceive in its true bearings and decide 
 upon its real merits the question how best to deal with 
 disputes as to conscience or discipline internal to the life 
 of religious societies. May I compare this unconscious 
 debt of the lawyers to the received principles and atmos- 
 phere of the Established Church, to the unconscious debt 
 which — as has often been, and will have to be oftener, 
 pointed out — modern Agnosticism lies under to the prin- 
 ciples and instincts of Christian morality ? It acts by 
 them, thinks by them, — and knows not whence or why 
 it is moral : rather it falsely attributes its morality to 
 causes incapable of producing it. So the lawyers instinc- 
 tively and unconsciously borrowed from the methods tra- 
 ditionally in use in respect of the Established Church 
 (which methods themselves were due to the theory of the
 
 really impossible ? 3 5 
 
 Royal Supremacy) the principles on which they acted, and 
 still act, — supposing now, erroneously, that the principles 
 have their foundation in some abstract reason, — towards 
 the disputes of religious Societies. Were not the Ame- 
 rican law-courts, after all, more prescient and more prac- 
 tically wise ? 
 
 But if there be any shadow of truth in this suggestion, 
 then it is plain of course that the fact that the practice 
 of English law-courts is towards nonconformists what 
 it is, will not bear the weight of any argument at all. 
 Being itself a mere shadow of the English tradition to- 
 wards Establishment, that practice can contribute nothing 
 whatever to determine that which, after all, is the main 
 subject under discussion, viz. the question of the necessity 
 or wisdom of the English tradition. 
 
 But possibly what has been said upon this matter may 
 lead us to perceive more easily that which appears to be 
 the greatest paradox of all. The implied thought in the 
 above argument was that the independent Churches must 
 be presumed to be treated, as far as it was a possibility, 
 on principles of independence. Therefore, if they were 
 overruled, such overruling could be no infringement of 
 the utmost independence possible. Our suggestion in 
 reply, which we believe to be perfectly reasonable and 
 true, is that the independent Churches have really been 
 treated on the pattern of the treatment of the State 
 Church. But if Churches really meant to be treated as 
 independent came to be treated after the pattern of the 
 State Church, is it possible that this may be interpreted, 
 after all, and almost per impossibile, into meaning that the 
 pattern of the treatment of the State Church is itself, in 
 its real proper truth, a pattern not of subjection, but of 
 independence? 
 
 Paradoxical as it may sound to some ears, and opposite 
 as its modern results have been — to the State Church 
 first, and afterwards, by consequence from her, to the 
 Free Churches also — this is precisely what appears to 
 be the truth. I submit that the treatment of the Free 
 Churches in English law-courts is the more, in a sense, 
 
 D 2
 
 36 Is the Independence of Church Courts 
 
 paradoxical, because while it has grown imperceptibly as 
 a shadow of the treatment of the State Church, the his- 
 torical attitude meanwhile towards the State Church (of 
 which it is a shadow) has itself precisely contradicted the 
 real principles on which it was based. The practice which 
 has grown up, indeed, is that all Church decisions, on 
 what points of doctrine soever, are liable to authoritative 
 revision and overruling at the hands of the lawyers. But 
 the theoretical and constitutional position of the Church 
 is independent. The transition from the one state to 
 the other, great as it seems to be, is yet made not un- 
 naturally nor otherwise than easily, under cover of the 
 really ambiguous term " Royal Supremacy." 
 
 If I may, without extreme presumption, venture to com- 
 ment upon the phrase at all, it will at least be a modest 
 contention to begin by insisting that the phrase ' Royal 
 Supremacy' is one which has undergone a very practical 
 and very considerable modification. That which it really 
 was first meant to signify, or at least that underlying prin- 
 ciple which first gave it crucial importance, was (I suppose 
 we may safely venture to say) the competency of the 
 national Church to determine all its ecclesiastical ques- 
 tions for itself, without being bound by the ties of extra- 
 national allegiance towards Rome. But passing by all 
 discussion of this sense, in which it is directly equivalent 
 to an assertion of Anglican independence in respect of 
 those without ; and looking only to the mutual relation 
 which was signified by it between the Church and the 
 Crown at home ; yet can it be doubted that it meant 
 something wholly different from what it either does or can 
 mean now ? No doubt there were practical usurpations 
 and transgressions of its meaning, but, usurpations apart, 
 did it not mean that the Sovereign, being naturally the 
 fountain of all coercive jurisdiction within the realm, and 
 being moreover himself within the Church, was acknow- 
 ledged by the Church to be, both within the Church and 
 without it, both according to the ancient traditions of the 
 realm, and with the full consent of the Church herself — 
 the proper source of all other than strictly spiritual power?
 
 really impossible? 37 
 
 It was not he indeed who conferred upon spiritual officers 
 their spiritual office. But it was he who commissioned 
 them to be a State power in England. Quite apart from 
 him, Bishops of the Church would indeed have been Bi- 
 shops, and would have been possessed of all rights and 
 powers which belong to the inherent authority of their 
 office : but apart from him they would have had no licence 
 to act in any way as Bishops within the laws of this realm, 
 and would have exercised their spiritual influence at their 
 material peril. To him as Sovereign they acknowledged 
 that they owed all their public authorization, all right to 
 act in and through the ecclesiastical processes of the State, 
 all jurisdiction in the region of material things. There 
 was a sense no doubt in which the Crown, even if hea- 
 then, must still have had sovereign power over all its 
 subjects. But the acceptance by the Church of the Royal 
 Supremacy was a recognition that to a Christian sovereign, 
 himself in things spiritual a dutiful son of the Church, the 
 Church in all its persons and all its processes owed a di- 
 rectness and alacrity of obedience by which the merely 
 necessary submission and loyalty of subjects were trans- 
 figured into something of a religious character. The 
 Church was willing to receive from him all the civil and 
 national sanction of its functions ; and in acknowledgment 
 of, and in reliance upon, his dutiful Churchmanship, to 
 exercise its high office as spiritual council and legislature 
 only by and with his consent. Apart from his consent 
 indeed, its acts, however spiritually regular, could in no 
 case have had any legal validity ; and persons, or actions, 
 or tribunals of the Church which were non- legal, could 
 hardly then have been other than illegal also. The loyalty, 
 then, of Churchmen as Churchmen became his due, not 
 merely as symbolizing the national independence of Rome, 
 but because the Church exercised national rights and 
 powers, and because he was, whilst himself loyally and 
 wholly of the Church and in the Church, the personifi- 
 cation of all lawful executive power in the realm. 
 
 There was in all this not so much a submission to an 
 alien power standing coldly without and above, as a cheer-
 
 38 Is the Independence of Church Courts 
 
 ful acknowledgment that, in things not expressly per- 
 taining to God, the Churchman sovereign was indeed 
 sovereign over Churchmen. But then this sovereignty of 
 his was to be exercised in a Churchmanlike fashion ; and 
 what fashion this meant was not ambiguous at all. In 
 exercising it he was to be, not the supreme secular person 
 overriding the Church, but rather the Churchman to whom 
 God had entrusted all executive force, and whose privilege 
 therefore it was to give public effectiveness to the Church. 
 He was supreme as Churchman, acting Churchmanly ; 
 just as in the State he was supreme as Englishman, acting 
 within the English constitution and laws. He was no 
 more meant to be supreme as against or above Church 
 principles, or the proper ministers of them, than on the 
 civil side he was meant to be supreme as against or above 
 the laws of the land, or the judges who administered them. 
 In either case the judges, ecclesiastical or temporal, were, 
 when acting in their capacity as judges, independent of 
 him ; even whilst in either case they were personally, and 
 for their public position as judges, and for their autho- 
 rity to act in that position, dependent upon him. In either 
 case his supremacy was the sort of personified, yet half- 
 mysterious force lying behind, to give effect to — we may 
 say (if he acted dutifully) to give effective independence 
 to — that system (secular or spiritual) behind which it lay. 
 It still signified really the independence, not the subjec- 
 tion, whether of the civil or the ecclesiastical law and 
 judicature. 
 
 I do not contend that there were no exaggerations or 
 perversions of this conception on the part of the sovereign, 
 or that there were no high-handed acts of usurpation 
 which had to be, and were, more or less expressly sub- 
 mitted to on the part of the Church (as well as on the 
 part of the secular Parliament and courts) ; but that, ex- 
 aggeration and usurpation apart, the true conception of 
 the Royal Supremacy, that conception which made the 
 submission of Churchmen to it an honest and a reasonable 
 thing, that conception which was really present to the 
 conscience of Churchmen from the beginning, and did not 

 
 really impossible ? 39 
 
 die away, but outlived all the more dangerous threaten- 
 ings of usurpation, was of such a nature as this. Now 
 herein there is no such thing really as the ' temporalty ' over- 
 riding the ' spiritualty.' The sovereign, who was ideally 
 supreme, was by no means identical, as a conception, with 
 the temporalty. Rather he was the incarnation of a di- 
 vinely Sovereign Power, lying behind and over all eccle- 
 siastical and all temporal machineries alike. They are 
 side by side, they are co-ordinate, in their distinct do- 
 mains, the ecclesiastical and the temporal ; they neither 
 override the other : they do not meet, save only in that 
 unique sovereign personality, who is conceived of as the 
 ideally majestic fountain of all the legal jurisdiction of 
 them both. 
 
 In what it came afterwards to be, the ' Royal Supre- 
 macy ' is almost the exact antithesis to the principle which 
 underlies the American judgment so largely quoted just 
 now : but in its original conception it would not have 
 contradicted it at all. Nay, it is the American method, 
 and not the English one (however lineal the descent of 
 the latter may be) which really illustrates and giyes exact 
 practical expression to the proper meaning of the old 
 English principle. So directly is this the case that that 
 very American judgment can appeal to the old English 
 principle as the direct and original expression of its own 
 controlling idea, in a way in which no modern Privy 
 Council judgment could have done without a manifest 
 distortion of meaning. " The controlling principle " (I 
 quote once more from the text of the American judgment) 
 "is declared in the 24th statute of Henry VIII. : 'causes , 
 spiritual must be judged by judges of the spirituality, and 
 causes temporal by temporal judges.'" 
 
 This statement of principle is not merely compatible 
 with, but is part of the necessary exposition of, the real 
 purpose and meaning of the Royal Supremacy. 
 
 But the posture of times has changed. The Royal 
 position itself is modified. It is impossible that Royal 
 Supremacy can have for practical purposes an unchanged 
 Usurpations still quite apart, the growth of 

 
 40 Is the Independence of Chnrch Courts 
 
 events itself has been reading new senses into the phrase. 
 The ' sovereign' is now in fact identified with the total 
 civil administration. The phrase contains less and less 
 of the personality of the personal ruler, — be he Church- 
 man or Mohammedan, — and more and more simply repre- 
 sents the civil or secular power. It is obvious at a glance 
 that the 'supremacy of the secular power' will mean 
 something different in kind from what the ' Royal Su- 
 premacy,' on any admissible hypothesis, could ever have 
 been properly intended or understood to mean. It now 
 becomes the direct contradiction of that which was once, 
 in its own way, in England, and is now elsewhere, and for 
 justice and for safety should everywhere and always be 
 the maxim at least of modern states about Churches, viz. 
 that established or unestablished, they should themselves 
 be the guardians of their own rules, and should execute 
 their own discipline within themselves. The State can 
 certainly now-a-days disestablish a Church which it no 
 longer trusts. But to attempt to overrule a Church in its 
 own subject-matter is, at least in modern States, funda- 
 mentally impolitic. And this is precisely what we have 
 been brought to in England — not so much with open eyes 
 and deliberate intention, as by the gradual shifting of the 
 import of political terms, by the modification — nay the 
 reversal of the meaning of the once all-important phrase 
 1 Royal Supremacy.' As pressed upon us now-a-days it 
 is really pressed with no other outcome of meaning except 
 that the civil power shall override the spiritual ; except 
 (in other words) that the Church shall not be independent ; 
 except (that is) in direct and fatal contradiction of its own 
 proper meaning and value. 
 
 Is this inevitable ? The Royal Supremacy was once, 
 it is suggested, an ideal sovereignty, lying behind both 
 ecclesiastical and secular machineries, both the 'spiri- 
 tualty' and the ' temporalty,' which were themselves, in 
 the constitution, parallel. In both these spheres the 
 phrase and the idea remain. Call it fiction, or call it con- 
 stitutional principle : it is retained equally in both, but 
 with the most widely diverse signification. In the tern-
 
 really impossible? 41 
 
 poral sphere it now means practically that the ' body 
 politic' is guaranteed in perfect independence. In the 
 ecclesiastical sphere it now means that the 'body spiri- 
 tual' is held in subjection to the 'body temporal.' Is this 
 contrast of meaning inevitable ? Is it impossible that in 
 the spiritual as well as the temporal sphere it should 
 mean (that which would be now, I submit, its proper mean- 
 ing according to the modifications of the modern con- 
 ception of sovereignty,) a guaranteed independence ? If 
 this is really impossible, if it is really true that Roya 
 Supremacy now-a-days can have no meaning except such 
 as necessarily contradicts what it ought to mean ; is it 
 wise, is it conservative, to continue to be enamoured 
 of the phrase ? 
 
 If indeed it should be urged that the ideal conception 
 of sovereignty has but been gradually transferred in fact 
 from the personal sovereign to the 'body politic;' and 
 that all else that has followed has only followed as a 
 necessary corollary of that transfer ; it must be answered 
 that the considerations, half practical, half mystical, which 
 really justified to the conscience of Churchmen once the 
 recognition of an exceptional Church position in a loyal 
 mediaeval Churchman sovereign, could not possibly be so 
 transferred as to be made applicable to the heterogeneous 
 parliament of modern days. Such a many-headed despot 
 cannot possibly be supreme as Churchman, or as the 
 Church's half-consecrated champion. Supreme it can be, 
 no doubt ; but supreme only as Caesar, the great imperso- 
 nation of secular authority, the power of this world, ex- 
 ternal to and in contrast with the Church. 
 
 Until the last two or three years indeed we might have 
 been told that the Privy Council was no more external to 
 the Church than the Sovereign had been conceived to be ; 
 but that the voice it spoke with was indeed a Church 
 voice. They are no adverse court (it would once have 
 been said) overriding the Church ; but they are themselves 
 the supreme court of the Church ; they are the Church's 
 own last word. So long as this language was capable of 
 being used, it greatly aggravated the Church's wrong.
 
 42 Is the Independence of Church Courts 
 
 Churchmen could far better have borne the undisguised 
 yoke of coercion ist or even of persecutor ; but to be 
 relentlessly overruled by a will and force essentially alien, 
 and yet told in all sweetness that this alien and unintel- 
 ligent force was itself but the voice of the Church claiming 
 spiritual loyalty, was the bitterest injury and insult of all. 
 The Ecclesiastical Courts Commissioners have probably 
 saved us from all such language in the future. They have 
 done all that seemed to them practicable to narrow the 
 sphere of the Privy Council Court ; and to strip it of all 
 appearance of being a final overriding court of appeal. 
 Every single thing that they have done in this direction 
 has been of real value, and deserves lasting gratitude. 
 And yet in their tenderness to the venerable but shifting 
 conception of the Royal Supremacy they have, after all, 
 essentially left the court, and with it the elements of the 
 former complications. Men can see now that the Privy 
 Council Court is no Church court. Men can see now that 
 the Privy Council Court ought to have no power of final 
 overruling, no voice in really ecclesiastical decisions. 
 Yet in the last resort it retains the power ; nor is it easy 
 to doubt that practically all the ecclesiastical tribunals, as 
 lower courts subject to its ultimate revision and overruling, 
 would (if ever the recommendations of the Commission 
 were tested in practical working) come by-and-by to ad- 
 minister and interpret Church principles and rules, and be, 
 in effect, compelled to administer and interpret them, not 
 independently of, but in accordance with, the administering 
 and interpreting of the court of the Privy Council. But if 
 it be so, the essence of the confusion has not yet been 
 removed. Neither will it be, until the Church of England, 
 whether it be disestablished, or still more, — much more, — 
 if it continue to deserve and command the national trust 
 as Established, shall have been in all its ecclesiastical pro- 
 cesses and discipline, and in all their rightful consequences 
 wholly and absolutely emancipated from all secular over- 
 ruling. 
 
 It is possible that the change in English tradition and 
 procedure which I venture to plead for may still seem, on
 
 really impossible ? 43 
 
 many sides, exaggerated. Possibly some would say that 
 so great a modification of existing conditions necessarily 
 involves — perhaps even that it amounts to— Disestablish- 
 ment. Others with no less show of reason might answer 
 No : but it rather is the prudent reform which most truly 
 conserves the Establishment by averting at once the 
 danger and the need of Revolution. Upon any such 
 dispute as this I have no concern now to intrude. Only 
 upon whichever hypothesis, and under whichever title, 
 I submit that the modification is in itself a reasonable one; 
 and is necessary for the preservation of health.
 
 APPENDIX 
 
 Even Henry VIII. himself, whose exaggerated pretensions 
 are undeniable, could write and urge [I quote from Bishop 
 Stubbs' historical appendix to the Commission's report] " that 
 the title should not be strained so as to imply a denial of the 
 sole and supreme lordship of Christ, or to claim a headship of 
 the mystical body of Christ, or as more than meaning headship 
 of the clergy of England ; he insists that the headship is not 
 limited to temporal matters, but that ' all spiritual things by 
 reason whereof may arise bodily trouble and inquietation, be 
 necessarily included in princes' power :' that the spiritual things, 
 the ministration of which is by Christ committed to the clergy, 
 are not so far extended as the modern use of the word spiritual 
 assumes, but that as to persons, property, acts, and deeds, the 
 clergy are under the king as head ; that this headship does not 
 imply superiority in things in which emperors and princes obey 
 bishops and priests as doers of the message of Christ and His 
 ambassadors for that purpose ; the addition in temporalibus 
 would be superfluous, ' as men, being here themselves earthly and 
 temporal, cannot be head and governor to things eternal.' If 
 spiritualities ' refers to spiritual men, that is, priests, clerks, their 
 good acts and deeds worldly, in all this both we and all other 
 princes be at this day chief and heads.' He alleges, as illus- 
 trations of the existing headship, the Convocations assembled 
 under royal authority, the fealty of the bishops, licence and assent 
 to the election of abbots, cognizance of certain offences of the 
 clergy ; ' so as in all those articles concerning the persons of 
 priests, their laws, their acts, and order of living, forasmuch as 
 they be all temporal and concerning this present life only, in 
 those we, as we be called, be indeed in this real caput, and 
 because there is no man above us here, be indeed supremum 
 caput:" 
 
 Queen Elizabeth's explanation after the abandonment of the 
 supremum caput, is, perhaps, more entirely re-assuring. " And 
 further, her Majesty forbiddeth all manner her subjects to give
 
 Appendix. 45 
 
 ear or credit to such perverse and malicious persons which most 
 sinisterly and maliciously labour to notifie to her loving subjects 
 how by the words of the said oath it may be collected that 
 kings or queens of this realm, possessors of the crown, may 
 challenge authority and power of ministry of divine service in the 
 Church, wherein her said subjects be much abused by such evil- 
 disposed persons; for certainly her Majesty neither doth nor ever 1 
 will challenge any authority than that was challenged and lately 
 used by the said noble kings of famous memory, King Henry VIII. 
 and King Edward VI., which is and was of ancient time due to 
 the imperial crown of this realm; that is under God to have the, 
 sovereignty and rule over all manner of persons born within these 
 her realms, dominions, and countries, of what estate, either eccle- 
 siastical or temporal soever they be, so as no other foreign power 
 shall or ought to have any stcperiority over them. And if any 
 person, that hath conceived any other sense of the form of the 
 said oath, shall accept the same oath with this interpretation, 
 sense, or meaning, her Majesty is well pleased to accept every 
 such in that behalf as her good and obedient subjects, and shall 
 acquit them of all manner of penalties contained in the said Act 
 against such as shall peremptorily or obstinately refuse to take 
 the same oath." With this runs the language of the 37 th Arti- 
 cle, "When we attribute to the Queen's Majesty the chief go- 
 vernment, by which titles we understand the minds of some 
 slanderous folks to be offended, we give not to our princes the 
 ministering either of God's word or of the Sacraments, the which 
 thing the injunctions also lately set forth by Elizabeth our Queen 
 do most plainly testify, but that only prerogative, which we see to 
 have been given always to all godly princes in Holy Scriptures 
 by God Himself, that is, that they should rule all estates and 
 degrees committed to their charge by God, whether they be 
 ecclesiastical or temporal, and restrain with the civil sword the 
 stubborn and evil-doers." 
 
 The following passage from Dr. Liddon's evidence may be 
 added : — 
 
 " I should like to be allowed to refer to the language of Abp. 
 Grindal, soon after he was appointed to the see of Canterbury, 
 when a difference had arisen between him and Queen Eliza- 
 beth about the Puritan prophesyings. It shews how little the 
 legislation of Henry's reign had destroyed in the representatives 
 of the Church of England the sense of what was due to the spiri-
 
 46 Appendix. 
 
 tuality in matters of Christian doctrine and discipline. I quote 
 from his ' Remains in the Parker Society's Edition,' p. 387. 
 1 1 beg you, Madam, that you would refer all these ecclesiastical 
 matters which touch religion, or the doctrine and discipline of 
 the Church, unto the bishops and divines of your realm ; accord- 
 ing to the example of all godly Christian emperors and princes 
 of all ages. For indeed they are things to be judged (as an 
 ancient father writeth) in eee/esia, seu synodo, non in palatio. 
 When your Majesty hath questions of the laws of your realm, 
 you do not decide the same in your court, but send them to 
 your judges to be determined. Likewise for doubts in matters 
 of doctrine or discipline of the Church the ordinary way is to 
 refer the decision of the same to the bishops, and other head 
 ministers of the Church.' Then he goes on to address to Eliza- 
 beth the language which was used by St. Ambrose to Theodosius 
 and to Valentinian ; and he quotes with approval the statement 
 of the same father, that Constantius fell into Arianism 'because 
 he took upon him de fide intra palatium judicare? Grind al 
 represents what may be termed the extreme point of the Puritan 
 impulse which succeeded the Reformation ; Grindal is more of 
 a Puritan than either Parker or Whitgift. This language shews 
 how mistaken it is to suppose that the sensitive feeling about 
 the transfer of purely ecclesiastical duties to the Crown or to 
 laymen began with the High Church Caroline reaction. 
 
 " 7389. Have you any evidence that Elizabeth conducted her 
 ecclesiastical business in that way, that she withdrew the busi- 
 ness from the House of Commons because not fitted for the 
 laity? — Yes, she did. 
 
 " 739°- Was that her interpretation of it? — That was her in- 
 terpretation of it. The 37th Article refers to her injunctions. 
 And there is a passage in James the First's ' Apology for the 
 Oath of Allegiance ' which shews how he himself understood this 
 oath of supremacy. James had sufficiently high notions of the 
 prerogative, yet he writes as follows : ' I never did nor will pre- 
 sume to create any articles of faith, or to be judge thereof; but 
 to submit my exemplary obedience unto them [the bishops of 
 the Church] in as great humility as the meanest of the land,' 
 p. 269. To the same effect Bishop Andrewes, who was selected 
 by James to defend his supremacy against Bellarmine : Tortura 
 Torti, p. 380. Docendi munus vel dubia legis explicandi Rex 
 non assumit."
 
 Appendix. 47 
 
 Mr. MacColl concludes his evidence with a further quotation : 
 " If I might express my opinion in the language of Lord Coke, 
 I should like to be allowed to do so. What he lays down is this : 
 ' As in temporal causes the King by the mouth of his judges in 
 his Courts of Justice doth judge and determine the same by the 
 temporal laws of England, so in causes ecclesiastical and spiritual 
 .... the same are to be determined and decided by the eccle- 
 siastical judges according to the King's ecclesiastical laws of this 
 realm.' And in the fourth of his Institutes, he says: "And 
 certain it is that this kingdom has been best governed, and 
 peace and quiet preserved, when both parties — that is when the 
 Justices of the temporal courts and the ecclesiastical judges — 
 have kept themselves within their proper jurisdiction, without 
 encroaching or usurping one upon another. And where such 
 encroachments or usurpations have been made they have been 
 the seeds of great trouble and inconvenience.' " 
 
 Mr. Gladstone, in his letter to the Bishop of London in 1850, 
 wrote : " It is an utter mistake to suppose that the recognition 
 of the royal supremacy in matters ecclesiastical established in 
 the Church a despotic power. The monarchy of England had 
 been from early times a free monarchy. The idea of law was 
 altogether paramount in this happy constitution to that of any 
 personal will." . . . "Thus every body knew that there were 
 laws superior to the Sovereign, and liberties which he could not 
 infringe : that he was king in order to be guardian of those laws 
 and liberties, and to direct both the legislative and all other 
 governing powers in the spirit which they breathed, and within 
 the lines which they marked out for him :" . . . . "in making 
 Church law he was to ratify the acts of the Church herself, re- 
 presented in Convocation, and if there were need of the highest 
 civil sanctions, then to have the aid of Parliament also ; and in 
 administering Church law he was to discharge this function 
 through the medium of bishops and divines, canonists and civi- 
 lians, as her own most fully authorized, best-instructed sons, fol- 
 lowing in each case the analogy of his ordinary procedure as 
 head of the State." 
 
 " It is a well-established principle that the sovereign cannot 
 administer justice in his own person, unless authorized to do so, 
 as any officer of state might be, by statute. ' Edward I. fre- 
 quently sat in the Court of King's Bench ; and in later times 
 James I. is said to have sat there in person, but was informed
 
 48 Appendix. 
 
 by his judges that he could not deliver an opinion".' And it is 
 now an undisputed principle that ' though the king should be 
 present in a court of justice, he is not empowered to determine 
 any cause or motion but by the mouth of his judges, to whom 
 he has committed his whole judicial authority 1 '.' The doctrine 
 of this passage is, I believe, that of the great legal authorities. 
 Thus while the immense latitude of nominal prerogative was 
 overshadowed on the one side by the superiority of the com- 
 bined legislature, it was on the other barred from arbitrary 
 excess by the necessity of operating through responsible in- 
 struments. The ideal or legal monarch was invested with 
 these high attributes, while the living one was on almost all 
 sides limited by law, in order that the actual authority under 
 which the work of government is carried on throughout the 
 country in its details might be one and undivided, revered and 
 resistless." 
 
 It may perhaps, then, be also remarked that however fair and 
 constitutional it may sound at the first blush, there is no more 
 logical ground for laying down that there must be an essential 
 right of appeal to the person of the Sovereign in ecclesiastical 
 than in ordinary civil or criminal cases. It is no principle of 
 the constitution that the Sovereign in person, or through his 
 personal counsellors, may always be called upon to re-hear and 
 revise what the Lord Justices of Appeal have pronounced upon. 
 Neither is it necessary for the safe-guarding of any constitutional 
 or essential rights of the subject, that the Ecclesiastical Courts 
 of Appeal should not be final. 
 
 ■ Blackstone, iii. p. 41, note. b Allen on the Prerogative, p. 93. 
 
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