L I E) RARY OF THE U N IVERSITY or ILLINOIS IS CONSTITUTIONAL ORDER THE Eigbtful Claim of tbe Cftutcb of Cnglanti CONSTITUTIONAL ORDER THE laijjljtful Claim of tlje Cj^urclj of €nslanti A LETTER TO HIS GRACE THE LORD ARCHBLSHOP OF CANTERBURY BY THE REV. T. T. CARTER RECTOR OF CI-EWER ; HON. CANON OF CHRIST CHURCIf, OXFORD RIVINGTONS WATERLOO PLACE, LONDON MDCCCLXXVII A LETTER My Lord Archbishop, May I venture in all respectfulness to offer some remarks on the present sore distress of tbe Churcli in regard to two momentous questions ; one concerning ritual, the other concerning juris- diction ? Let me first speak of the question of ritual, before I enter more fully into that of jurisdiction. I would not dwell on details ; I rest my case upon principles which exhibit the mind of the Church, and were therefore intended to determine details ; or, if other principles have asserted for themselves a standing ground within the Church, those which I am about to illustrate as of authority, ought at least to find fair play and free expression. With this view^ then, my Lord, let me recall some of the past Declarations of the Church at the most critical periods of her history, and on occasions of primary moment. In the Act of Uniformity of 1548 ^ the king appointed that " the Archbishop of Canterbury ^ 2 and 3 Edward VI. s. 1. 4 Declarations of the Church and certain of the most learned and discreet bishops and other learned men of this realm, having as well eye and respect to the most sincere and pure Christian religion taught by the Scrip- ture as to the usages of the 2:>rimitive Churchy should draw up and make one convenient and meet order, rite, fashion," etc. Before the Savoy Conference in the reign of Charles II., when our Prayer Book was revised, and cast into the form in which it has come down to us, certain Commissioners were appointed "to advise upon and review the said Book of Common Prayer, comparing the same with the most ancient Liturgies which have been used in the Church in the primitive and purest times." ^ In other documents also, touching the same point, the expressions occur, as fixing the standard to be aimed at, " generally received in the Catholic Church ; " ** Catholic consent of antiquity ; " '' Catholic usages of primitive times ; " " customs of the Churches of God," etc.^ Among the Canons of 1604, which have hitherto regulated the action of our ecclesiastical courts, and which were revised in 1865, there is one (the 30th) which determines the lawful use of the cross in baptism, and in settling this usage, lays down this general principle : " The abuse of a thing doth not take away the lawful use of it. Nay, so far 1 Caedw. Conf. p. 298. 3 lUd. pp. 337, 338, 339, 355, 359, etc. (ed. 1840). u,uc| concerning Ritual. 5 was it from the purpose of the Church of England to forsake and reject the Churches of Italy, France, Spain, Germany, or any such like Churches, in all things which they held and practised, that, as the apology of the Church of England confesseth, it " doth with reverence retain those ceremonies which do neither endamage the Church of God nor offend the minds of sober men : and only departed from them in those particular points, wherein they were fallen both from themselves in their ancient integrity, and from the Apostolical Churches which were their first Founders." The same principle pervaded the proceedings of the Hampton Court Conference, as expressed in this general dictum : " Their (Roman) abuses are new ; but the things which they abused we retain in their primitive use, and forsake only the novel corruption." ^ The careful regard paid to general Catholic usage appears also in the very forefront of our Prayer Book, where ^ it is said : " Of the sundry alterations proposed unto us, we have rejected all such as were either of dangerous consequence (as secretly striking at some estab- lished doctrine, or laudable practice of the Church of England, or indeed of the whole Catholich Church of Christ)," etc. These statements, be it observed, cover the whole ground from the Reformation downwards to the last revision of the Prayer Book, and re- 1 Caedw. Conf. p. 199. ^ See the Preface. 6 Declarations of the Church main stamped with the full authority of that revision, as the unchanged expression of the mind of the Church. It is to be noted that every cpestion of retention or alteration turned throughout on the results of reference to primi- tive times, and to the usages of other portions of Catholic Christendom. Whatever then may have been the variations, deflections, or omissions, which in course of time have crept into the service of the Church, or whatever the failing to carry out in practice its rubrical directions, it is most important to remark, that up to the present time we have had no other standard set before us by the Church, or recognised by the State^ than what is embodied in the above-stated authoritative documents. Such principles were understood, more or less con- sciously, as the mind of the Church of England, and the groundwork of its system, whether as to its doctrine or its services, when we were or- dained, and gave in our adhesion for life to use " faithful diligence always so to minister the doc- trine and sacraments, and the discipline of Christ, as the Lord hath commanded, and as this Church and realm hath received the same."^ The teaching of the last forty years, which has revived our Church life from its old sources, has but awakened and deepened within us these principles, as the rule by which to measure the emerging questions of these eventful times, in ^ Ordering of Priests. concerning Rihial. 7 which, during at least the last few years, no fact is more remarkable than the increased interest in, and knowledge of, ritual. Now, by bearing these principles in mind, the startled indignation with which the late judgments of the Privy Council were received may be un- derstood. And was such a feeling unjustifiable, my Lord, when these judgments are contrasted with the above Declarations, against which there is literally nothing to show of an opposite character that can be regarded as of authority ? Of the late judgments I would select one principle only, which is embodied in the following propositions : " All ceremonies are abolished which are not expressly retained." — Martin v, Mackonochie. " By necessary implication, a rubric must be construed as abolishing what it does not retain." — Ibid. " Additional ceremonies are excluded by impli- cation." "An additional ceremony, and so unlaw- ful." — Hebbert v, Purchas. '' Acts not j)rescribed to be taken as forbidden." — Sheppard v, Bennett.^ Or, in other words, " omission is jDrohibition." With this rule underlying all the above proposi- ^ See Mr. Gnieber's Three Becent Decisions, j-tp. 37-40, 43. Parker and Son, Oxford and London. In this careful and elaborate letter, addressed, by permission, to Lord Selborne, will be found lists of the various particulars under our different Prayer Books, which have been practised, and most of them necessarily practised, from the lack of any direction whatever. 8 Their contrast zuith tions, I would connect the studied and persistent refusal by the Court to admit the explanation of any doubtful point in the rubrics, by refer- ence to the primitive Church, or the customs of other Catholic Churches, as grounded on the similar principle of confining all attention to the bare letter. Now, considering that these principles of inter- pretation at once cut us off from primitive customs known to have been continued on by men of highest authority since the Eeformation, without let or hindrance, and one such usage, the mixed chalice, acknowledged by the Court itself to have been practised by our Lord Himself at the insti- tution of the Last Supper, and uniformly continued with exceeding care, as following our Lord, by the 'whole Church from the beginning, — that they condemned what Churchmen everywhere had been habitually doing, and were continuing to do, most innocently, as hereditary usages of the English Church from all time, such as saying, " Glory be to Thee, Lord," before, and, " Thanks be to Thee, God," after, the Gospel ; singing- hymns nowhere appointed during the services ; preaching at other times beside during the Com- munion Service ; saying a collect or the " invo- cation " before, and the " ascription " after, the sermon ; turning to the east during the Creed, etc. etc., — tliat everything would be thrown into inextricable confusion, because there were neces- the late ytidgments. 9 sarily, with our scant proportion of rubrics, in- numerable acts, some of real importance, some tending to reverence, in what had to be done in some way or other, and yet no directions what- ever given, — that by submission to such interjDre- tations we should be forced into a line of ritual use which harmonised only witli the ultra-Pro- testant communities, as opposed to that of all other portions of the Catholic Church, while all our Church's Declarations, as already shown, tended in the opposite direction, — considering, I say, these consequences of submission, was it strange, my Lord, that, forced as we were to choose between the authoritative Declarations of the whole post- Reformation period, such as I have quoted above, and these wholly novel and unprecedented, and really impracticable views, so many decided to adhere to the former line, as they were best able to see their way ? To reconcile the two principles so directly opposed to each other was simply impossible. Moreover, whether your Grace admits the in- sinuation, or not, as fair towards the judges, it is but honest to say, that we were influenced by the instinctive conviction that, except on a subject matter in which religious feelings were concerned, and so open to the bias of the strongest prejudices, it was inconceivable that such principles as under- lay these late unhappy judgments could have been admitted for a moment. Let me illustrate my I o Unreasonableness of the Rule, meaning by an anecdote taken from a popular biography of recent date. In Mr. Evelyn Ashley's Life of Lord Palmerston ' occurs the following passage, containing part of a private despatch from Lord Normanby, when ambassador at Paris : '*Lord Normanby sent Lord Palmerston the following record of his personal observations during these events : " Paris, March 13, 1848. " When, in addition to this, in assertion of the illegality of the banquets, the Minister of Justice made the astounding declaration from the tribune, that every act that was not expressly permitted in the Charter was thereby forbidden, the Opposition thought it necessary to make a striking declaration of their rights." So that, my Lord, what a statesman like Lord Normanby rejected with astonishment at its bare mention, has been adopted as a standard of inter- pretation by the higher Court, to which we are expected to submit ourselves with an absolute obedience ; and a principle considered wholly in- admissible in this world's diplomacy, was to be forced upon our consciences as an abiding law in the things of God. Many, my Lord, speak of us often unkindly as guilty of presumption in setting up, as they regard it, our own judgment against the judgment of the Courts. I hope I have shown that this has not ^ Vol. i. pp. 69-72. Omission is Prohibition, 1 1 necessarily been so. The case rather was that we had conflicting principles of interpretation placed before us, and we preferred one hitherto recog- nised by the Church to a novel mode altogether unknown to any age of the Church. We had, besides, the examples and judgments of many of highest mark in our reformed Church, who under- stood the mind of the Church in the same way. We had also the judgments of Convocation, and of your Grace's late Dean of Arches, who also viewed the question in debate from the same standpoint. There is no doubt abundant room for question as to details ; I speak only of principles of interpretation. Much, too, has been said of the perverseness of men of the more moderate section of High Church- men casting in their lot with the more advanced men, and defending them. But what, my Lord, was to be done ? Do you find that the moderate members of a political party can keep aloof from the more advanced members in the settlement of burning questions ? In every movement there will be some who, from circumstances or temperament, go beyond the rest, the Tr/od/xaxot of the advancing host. The attack naturally fell on these more prominent members, and in their persons there- fore the critical questions at issue had to be tried. Is it honourable to desert those who are thus attacked, because there are shades and degrees of difference ? Or would it be safe ? Had the higher 1 2 The necessity of Union Court adopted the policy of sanctioning the main questions for which we contended, and left certain special excesses to be dealt with separately, the result would most probably have been different. But the onslaught, my Lord, was along the whole line. The upholder of only the eastward position was dealt the same measure of condemnation as the ritualist of most extreme type. It was a case of, "Proximus ardet," etc. The Privy Council raised up a whole army imperilled by the fatal error which, like ambition, o'erleapt itself. It would have been an equally fatal error in the High Cliurch party, viewing the matter merely selfishly, to have allowed a principle to be worked to the extermination of the few more marked and unpopular among their ranks, which could after- wards have been used as readily, under favourable circumstances of an adverse bishop, or uncon- genial congregation, against some of the quietest and least demonstrative parish priests. For your Grace must be aware that a relentless faction is leagued together in the determination to root out, wherever possible, the whole of what is understood under the term, the Catholic side of the Church of England. What, then, I would venture to urge upon your Grace is this, that as long as the Declarations which I have quoted above exist, so long there cannot fail to be resistance to what plainly conflicts with them. They express what I understand by the constitutional principles of interpretation for among High Churchmen, 13 determining questions of ritual, and only an ad- herence to them can produce order and peace, for only thus can there be justice and consistency. Let me proceed to lay before your Grace these further remarks on the yet more critical question of jurisdiction. The immediate cause of the disturbance afflicting the Church lies in the new Court instituted under the Public Worship Regulation Act. No doubt very much of the strong resistance it has met with, is due to the fact that it has been seized upon at once, not by congregations to defend themselves, as was its ostensible object, but by one party within the Church to crush another, the three requisite complainants being the men of straw that represent the Church Association. Had this mode of working the Act (which was indeed pointed out) been foreseen by Parliament, that it would arm a central organisation with the means of dis- turbing the peace of united congregations in every district throughout England, it surely could never have been carried through. Granting, however, that much of the indigna- tion against the new Court arises from the spirit in which it is capable of being worked, and is being worked, there remains a deep-seated aversion to it wholly irrespective of its consequences, on its own merits, from a sense, more or less clearly defined, of its Erastian character. It were, of course, mere fanaticism to say that 14 Public Worship the Arches* Court, previously to the carrying of the Public Worship Regulation Act, was per- fectly true to the primitive principles of episcopal jurisdiction, or that it had not been greatly modified by various changes, partly through the interference of the civil power, which had tended to secularise it. But the contention is, that through the policy of 1874 an excess of State interference has been reached, wholly unprecedented, leaving far be- hind all previous steps taken in this direction. In order to make this portion of my remarks intelligible, it is necessary to refer back to the past history of episcopal jurisdiction. Suffer me, then, my Lord, not as giving information to your Grace, but to make my meaning clear to others, to explain briefly the original principles of episcopal jurisdiction, and the changes to which, in the course of time, it has been subjected. Jurisdiction is an integral part of the Divine commission of the bishop, to be exercised by him freely under certain conditions. According to the primitive constitution of the Church, the bishop judged, seated in his synod, assisted by his presbyters, but giving his judgment of his own mind. After a time, when the State became allied with the Church, the bishop had his legal adviser, at first a cleric, later on a layman, yet still giving judgment freely in his own person. By degrees the legal adviser .became the judge, uttering his decisions of Regiilation Act, 15 himself, at first only in certain causes specially committed to him, afterwards in all causes brought before the Court. Hence arose the official prin- cipals and chancellors of our own ecclesiastical courts. Yet all along it was of the essence of such courts that the judge, whether clerical or lay, should be freely appointed by the bishop, because he was nothing more than his representa- tive or delegate. " For a bishop," as Burn says,^ quoting Bishop Stillingfleet, " by appointing a chancellor, doth not divest himself of his own ordinary power ; but he may delegate some parts of it by commission to others, which goes no farther than is expressed in it ; . . . . neither can use or custom enlarge such a powder, which depends on another's will." So entirely was this the idea of the status of the ecclesiastical judges of our Church courts, that, as Burn goes on to say, " however by modern practice the patents for such places have passed for the life of the persons to whom they were first granted, yet it was not so by the ancient ecclesiastical law of England." The reason given for these life patents by Lind- wood is, " that the bishop may not have an official against his will, perhaps disagreeable to him ; " for, as Burn again observes, " the legal acts of the Court are the bishop's acts, by whose authority he (the chancellor) sits there." Among our Church Courts there was this distinction, that while each ^ Ecclesiastical Law, vol. i. c. ii. p. 29 (Chancellors, sec. G). 1 6 History of Episcopal Jurisdiction, diocese had its separate court, the Arches' Court of Canterbury and the Chancery Court of York, as representing the metropolitans respectively, received appeals from the dioceses within their provinces ; but neither the Arches', nor the Chan- cery Court of York, had any jurisdiction in other dioceses, except on appeal ; neither of them were courts of first instance^ not even in the dioceses of Canterbury and York. For our present purpose, the important point to mark is, that until the unhappy legislation of 1874, our Provincial Church Courts so far retained their original integrity, that the judges were freely ap- pointed by the respective Primates, by virtue of the inherent rights of their sees, without any interference on the part of the State; and the judges freely gave their judgments. These links remained of the constitutional liberties of the Church, connecting the present with the past. For our present purpose it is also necessary to mark carefully the essential distinction that exists between the Court of Arches and Lord Penzance's new Court. As above stated, the Arches' is not a Court of first instance even for the diocese of Canterbury, only a Court of Appeal for all dioceses within the Province. The new Court is a Court of first instance only, and that for every diocese in England. With regard to the causes brought before the Courts, the Arches' deals with doctrine equally as with other ecclesiastical matters. The The Nciu Court. i 7 new Court is confined to the one subject of divine worship and its accessories. The only true parallel to Lord Penzance's Court is to be found in the Probate or the Divorce Court. As testamentary causes were taken out of the Church Courts, and made the special object of a new Court, the Pro- bate Court; and as matrimonial causes were in like manner transferred to the Divorce Court, so all matters relating to divine worship have been taken from the Church Courts by the Public Worship Regulation Act, to be dealt with in this new Court. This new Court is indeed currently spoken of as the Arches', and is so styled as by authority in the public journals and law reports, while yet the only connection between it and the Arches* is this — that the judge of the new Court had by the Act a right of succession to the Deanery of the Arches when it should become vacant, and also that the Act provided that on this contingency occurring, proceedings taken in this new Court were to be deemed to be taken in the Arches'. It would be a similar case if an Act were passed, providing that the Lord Chief Justice should succeed to the Lord Chancellorship when that office became vacant, and on such event proceedings taken in the Court of Queen's Bench were to be deemed to be taken in the Court of Chancery ; excepting only that in our present case a new Court has been formed by the will of the State to assume the likeness of the old Arches', in B 1 8 The Neiu Cottrt the supposed case two old Courts would be con- founded together. Tlie change, therefore, that has now taken place is marked mainly by two important features. In order to be more concise I confine my remarks to the case of the Arches' only, excluding the parallel case of the Chancery Court of York. (1) '' The administration of the laws relating to the performance of divine service " is taken out of the old Courts, and is committed to what is really and practically, though not avowedly, a new Court, which cannot be the Arches', because the Arches' still separately exists, but which for all the purposes of the Act is, by legal fiction willed by Parliament, identified with the Arches', because the Act says, " all proceedings taken before the judge shall be deemed to be taken in the Arches'." And this new sphere of action, which we cannot but look upon as a new Court, depending entirely on statute, is made by the Act a Court of first instance extending its powers throughout England. (2) The new judge is appointed by the Arch- bishops, subject to the approval of the Crown, to be signified by sign manual, which now means that of the Prime Minister ; and, being thus appointed, he succeeds to the office of Dean of Arches, not by fresh appointment, but by virtue of the Act. Thus the free representative character of the official principal of the province is surrendered created by Parliament. 19 to the control of the State ; for your Grace could no longer appoint your official principal, as your predecessors were accustomed to do ; but, as it were in lieu of that loss, your Grace joins with his Grace of York, subject always to the Crown, in appointing the judge to act in his Court of first instance, fixed or moveable at pleasure, in every diocese throughout England. And whence does Lord Penzance receive his commission to judge in the new Court ? Not from your Grace, because your Grace is represented only in the Arches'. Whence but from the State which established the new judge and his sphere of action, simply of its own will ? But the State has no spiritual power, and can convey none. Some say that this matters the less, because the judge thus appointed deals with ritual only. But if he sits in the new Court, judging ritual only, he sits in the Arches', to which Parliament has willed that he should succeed, judging doctrine. I am perfectly at a loss to see how some in high place among us can speak of these changes as " a distinction without a difference," or " a distinction so fine that the mind fails to grasp it." It is surely all the difference between the Church's independent right, and the State's in- trusive control ; between the Church's liereditary order of jurisdiction, and one of a quite novel character. To take a crucial instance, we cannot but B 2 20 Canonical Authority think, my Lord, that Mr. Tooth was impri- soned by an unconstitutional stretch of the civil power, and therefore unjustly. For (1) he was judged as to the exercise of his spiritual func- tions by a judge appointed under merely par- liamentary enactment ; and (2), granting tliat the Dean of Arches', as representing the appellate jurisdiction of your Grace over the Diocesan Courts, has by custom acquired power to inhibit and deprive priests a sacris, yet, as we hold, Mr. Tooth was not judged in the Arches', nor on appeal, and therefore could not canonically be subjected to such power. It has been a purely State arrangement, and can the State rightfully give that power ? We are thus forced, my Lord, to choose as to possible claims to submission between the Act of Parliament and the Canons of the Church ; not Canons of the past, obsolete and dead, but Canons made binding on the clergy by renewed affirma- tions of the Church. As in the case of ritual, we are forced to choose between the Church's own principles, and the principles of the Privy Council Judicial Committee, so, as to discipline, we are forced to choose between an Act of Parliament and Canon law. There are other grave points in this new process, my Lord, which I pass over, lest my remarks should extend beyond bounds, such as that the judge may be any barrister often years' standing, thus showing m conflict with the New Cotirt. 2 1 the novel character of the Act, as ignoring Canon law, the knowledge of which is required by the Canons of 1604^ as the necessary qualification of an ecclesiastical judge ; and the far graver provi- sion which to our mind places both Archbishop and Bisho23 in a false and humihating position, in being obliged ^ to carry out the decrees of the new judge by providing for the services of the church of a priest thus uncanonically inhibited, and instituting his successor when he is uncanonically deprived, and this, whatever the bisho23's own mind may be. But I pass on to consider more fully the momentous point as to the establishment of the new Court, that it was by the pure will of the State without the concurrence, or rather against the declared will, of Convocation. I am aware that I shall here be met by the statement, that the ecclesiastical Courts have always been subject to regulation by Act of Par- liament, and that the poHcy of 1874 is simply another instance of the exercise of a power which the Church has long been accustomed to, and habitually accepted. But to this I entirely demur. It is a question of fact ; and I proceed to lay before your Grace in some detail, because of its vital importance, and yet as briefly as the subject ^ Canon 127. 2 The Act, indeed, only says (Sect. 13) the Bishop " may make due provision," etc., but in the two cases which have ah'eady occurred, the Bishops of London and Rochester seem to have interpreted may to mean must. 2 2 Qtcestion of Parliame^itaiy admits, the history of what has passed since the Eeformation as to the regulation of procedure in our ecclesiastical Courts. It is, of course, clear that all coercive jurisdic- tion proceeds from the Crown ; and that, viewed under this purely external aspect, and in no other, as I conceive, ecclesiastical Courts may be spoken of as the Queen's Courts ; that mixed causes, such as those relating to marriage or administration of wills, being committed to the Church Courts by the State, will be regulated by the State; that Canons at variance with statutes of the realm are ipso facto void ; that Canons to be valid in the realm require the sanction of the Crown. Such points are, of course, at once admitted ; but they do not, I submit, touch the question at issue. To secure accuracy, I will take a list, drawn up by Lord Selborne,^ of statutes since the Eeforma- tion, " relating, more or less, to matters of proce- dure in the provincial and diocesan courts of England." They are thus stated : 23 Henry YIII. cap. 9 (a.d. 1531), forbidding any person to be cited into any ecclesiastical court out of the diocese in which he resides, except in certain specified cases. 24 Henry VIII. cap. 12 (a.d. 1532), the statute in restraint of appeals, regulating the ^ Lord Selborne in correspondence with a Sussex priest on the Pubh'c Worship Regulation Act, entitled, Cano7i or Statute. London : llaycs, Lyall Place, interference with CJmrch Courts. 23 course of appeals from tlie diocesan to the pro- vincial courts. 25 Henry YIII. cap. 19 (a.d. 1533) (submission of the clergy, etc.), giving an appeal from the Archbishop's Court to the King's Majesty in the King's Court of Chancery, etc. 23 Car. II. cap. 12 (a.d. 1661), abolishing the oath ex officio in all ecclesiastical courts. 27 Geo. III. cap. 44 (a.d. 1787), prescribing limits of time beyond which the ecclesiastical courts are not to entertain suits against certain kinds of oifenders. 53 Geo. III. cap. 127 (a.d. 1813), "for better regulation of ecclesiastical courts in England," etc. etc. 5 Geo. lY. cap. 41 (a.d. 1824). " Act to regulate the duties, etc., of the officers, clerks, and ministers of certain ecclesiastical courts in England." 2 and 3 AA^ill. lY. cap. 92 (a.d. 1832). Act trans- ferring to the Judicial Committee of the Privy Council the powers of the Court of Delegates, etc. 2 and 3 Will. lY. cap. 93 (a.d. 1832). Further provision for cases of contumacy in ecclesiastical courts. 3 and 4 Will. lY. cap. 41, sect. 28 (a.d. 1833). Farther powers given to the Judicial Committee of the Privy Council, etc. 3 and 4 Yict. cap. 86 (a.d. 1840). Church Dis- cipline Act, by which the whole procedure in all the ecclesiastical courts against clergymen ac- 24 Changes after the cused of offences against the law ecclesiastical was regulated, etc. Now, viewing this important list, be it observed, what a striking difference there is between what passed from the time of Henry YIII. till the middle of the reign of George III. — a period of upwards of two hundred and fifty years — and the subsequent brief period of less than one hundred years from George III. until now. During the former period, with the exception of the statutes relating to appeals, of which I shall have to speak presently, there is no interference whatever with the constitution of the Courts, nor even with their procedure, except in the one instance of 13 Car. II. cap. 12, abolishing oaths ex officio; but this ap- parently was, as suggested by the Sussex Priest, "jDassed under very peculiar circumstances, to repeal an Act of the Long Parliament, the 16 Car. I. cap. 11, which (it was thought) had altogether abrogated the exercise of ecclesiastical jurisdiction in England."^ On the contrary, when we come to the latter period of the Georgian era there is a constant interference. The cause of this striking difference is obvious. During the former period, at least its greater part, Convocation was in the full exercise of its func- tions ; and the mutual action between Church and State was preserved with more or less of compa- rative fairness and mutual recognition of each * Canon and Statute, p. 29. suppression of Convocation. 25 other's rights. The terms of the compact were ordinarily, at least, observed. It was during the spiritual dearth of the Georgian era, after Convocation had been suppressed, that the new order commenced, and the Church being practi- cally silenced, the State intruded itself more and more into the spiritual demesne. Some corrective power doubtless was needed, and the torpid Church, past feeling any wrong done to its spiritual life, acquiesced. And now, because during the last eighty or ninety years the Church, bound hand and foot, and only just awakening from its lethargic sleep, made no remonstrance against this ever-encroach- ing exercise of State power, this our darkest and most degraded period is quoted against us as our normal state, and a prescriptive right of inter- ference to any extent is claimed as the law to which we have voluntarily committed ourselves, and as the proper and intended relation between Church and State. It is, my Lord, a matter to us of the deepest moment to recall the fact, that throughout the whole period during which Convocation was in action, the interior regulations of our Church Courts w-ere made by that body, receiving, of course, afterwards the sanction of the Crown. There is a regular succession of cases in which the State recognised the rights of Convocation, and referred to it, as one of its proper functions, 26 The Action of Convocation the regulation of procedure in the Church's Courts. As the need of adaptation of the Church's laws to changing times and circumstances arose, this reference was made, till Convocation was silenced. Thus the Canons of 1G04 regulated the whole course of action, the qualification and duties of officers, the objects and modes of procedure, etc. etc. Thus, as an instance of the manner in which Church questions were then conducted, in 1662, during the passing of the Act of Uniformity, the Eeport of the Conference of the two Houses has this statement : " Whereas it was intimated at the Conference yesterday, at the desire of the House of Commons, ' That it be recommended to the Convocation to take order for reverend and uniform gestures and demeanour to be enjoined at the time of Divine Service and preaching,' it is ordered by this House, and hereby recommended to the Lords the Bishops and the rest of the Con- vocation of the clergy, to prepare some canon and rule for that purpose, to be humbly presented unto His Majesty for his assent." ^ This was done, as thus stated by Lathbury : " The subject was discussed on 10th, in the Upper House, when it was decided that the Canon of 1604, under the title of ' Solemn Reverence during the Celebration of Divine Service,' should be considered by the Lower House; and on the 12th of May the said ^ Lords' Journals, ii. 450. regulating the Courts. 2 7 Canon, being the eighteenth of 1604, was approved and confirmed." ^ Thus in 1689, in the reign of William and Mary, in a Royal Commission sent to Convocation, the following passage occurs : " And whereas the Book of Canons is fit to be reviewed, and made more suitable to the state of the Church ; and whereas there are defects and abuses in the Ecclesiastical Courts and jurisdictions," etc. etc.^ Again, in a.d. 1710, in the reign of Queen Anne, license was given to Convocation, empowering that body to " agree of and upon such canons, orders, ordinances, and constitutions," as they *' shall think necessary, fit, and convenient for the honour and service of Almighty God, the good and quiet of the Church, and the government thereof, as by law established, to be from time to time observed, performed, fulfilled, and kept, as well by the Archbishops of Canterbury, the bishops, and the rest of the whole clergy, . . . and also by all and every judges of the said Archbishop's Courts, guardians of spiritualities, chancellors, deans and chapters, archdeacons, commissaries, and their in- ferior ministers whatsoever of the same Province of Canterbury, in their and every of their distinct courts, and in the order, manner, and form of their and every of their proceedings, and by all ^ Hist, of Convocation^ 2ncl edit. 1853. He refers to Rennet's Ttegister, 1671, 680; Sijn. Aug. Ill, 112; Wilkins, iv. 575. 2 Cabdw. Synodalia, ii. p. 694. 28 CJmrch not committed by other persons within the said part of Great Britain, called England, as far as lawfully being members of the said churches may concern and oblige them."^ Again, in a.d. 1715, in the reign of George I., the Crown committed to Convocation " the re- gulating proceedings in excommunication " and commutation of penance ; and the regulating licences for matrimony according to the canon, in order to the more effectual prevention of clan- destine marriages.^ It is only since Convocation was silenced, and not indeed until about seventy years after its suppres- sion, far on in the Georgian era, that the present mode of parliamentary interference commenced. I shall have afterwards to speak of the Final Court of Appeal ; but so far as the Courts of first and secondary instance, those of the several dioceses and the provinces, were concerned, the liberties of the Church were, on the whole, fairly respected, and this during upwards of two hundred and fifty years subsequent to the Reformation. During all that time we see Convocation supported in its own sphere, and the Courts regulated by it. When it is urged that we are committed to this new system of Act of Parliament regulation, be- cause it has been acquiesced in now for many years, I ask where is the proof of such acceptance? ^ Cardw. Synodalia, ii. p. 728. 2 IhUl. ii. p. 818. the Statutes of later Years. 29 When it began, there was no representative Church body to watch and resent it ; no voice to speak. Moreover, as long as such interference concerned merely the internal regulation of the Courts, it would not be noticed, or even known, by the parochial clergy. They would hardly heed either such interference, even if known, when it con- cerned merely the discipline of morals. Englishmen do not much regard principles till practical results touch them, and lead them to question. It requires a sore grievance to arouse hard-working clergymen to engage in public strife. *' While men slept," changes went on in the ecclesiastical Courts during many years, of which no notice was taken. But immediately the case has occurred of judgments affecting our spiritual and daily ministrations, to be enforced by new methods, and the old constitution of the Courts sacrificed for this end, instantly the agita- tion has begun, and Convocation, partially relieved from its long silence, remonstrated, speaking, as far as was permitted, the mind of the Church. Where in this has there been any sign of accep- tance of such State intrusion ? For the Church to " receive " an order of Grovernment, or fresh modes of jurisdiction, must imply a formal act, not merely a passive acquiescence, where no grievance is felt. Directly the State interference touched a chord which vibrated to the heart, the resistance arose. In civil matters, my Lord, it is the same. 30 Appellate Jurisdiction Only deep-felt grievances lead men to look closely into the methods pursued. Yet they are not sup- posed on that account to have already approved and assented to them. Acts of Parliament and constitution of Courts are among the last tilings that parish priests think of, unless brought into conflict with them in their daily work. It ^eems to me a cruel aggravation of our difficulties to be told, when sore and anxious at these new judicial methods, that we have been long accustomed to such a system of government. But I pass, my Lord, to what is unquestion- ably our greatest difficulty, that of the Final Court of Appeal. It is said that, much as we are bound to consider the Church's constitutional rights in its own proper Diocesan and Provincial Courts, yet if these are liable to be always domi- nated by a higher Court, it matters little as to practical results what they decide, or even what they are. If they are merely mouth-pieces of the higher power, why struggle about them? I do not assent to this, for it is worth a struggle to preserve our proper Church Courts, rightly constituted, as a witness, and in the hope of the higher Court being at some future day more eccle- siastically organised, rather than let all alike become Erastianised. But still for practical pur- poses, it is true that the great question now at issue as to the jurisdiction to which we are called of the Crown of England. 31 to submit, turns eventually upon the claims of the Final Court of AjDpeal. The argument as against us is this : The statute of Henry YIIL, giving a right of appeal to the Court of Delegates, and that of William lY., trans- ferring the same powers to the Judicial Committee of the Privy Council, being accepted by the Church and recognised by all priests as the law of the English Church, binds them in conscience, so as to preclude all grounds of reasonable objection to the claims made upon them. The case, my Lord, may, as I believe, be more truly stated thus : The State has failed to fulfil the promise held out in the statute which first proclaimed the principles in- tended to regulate appeals. The consequences of such non-fulfilment of the implied compact, for reasons which I will presently allude to, were not felt till of late years, when those reasons no longer applied ; but immediately such consequences were felt to touch the Church's vital system, oppo- sition was aroused, and has never ceased, some- times openly expressed, sometimes only silently brooded over. Nothing can be fairer or more consistent with a just compact between Church and State than the declarations of the Act^ which abolished the appellate power of the Pope in this realm, and substituted for it that of the Sovereign, thus reviving what the kings of England had claimed ^ 24 Hen. VIII. c. 12. 32 Conjoint Action in pre-Reformation times. The Preamble thus expresses its object : " This realm of England is an empire^ governed by one supreme head and king, having dignity and royal estate of the imperial crown of the same, unto whom, a body politick compact of all sorts and degrees of people, divided in terms and by names of spiritualty and temporalty, be bounden and owen, to bear next to God, a natural and humble obedience ; he being also institute and furnished .... to render and yield justice and final determination to all manner of folk . . . . within this his realm, in all causes .... without restraint or provocation of any foreign princes or potentates of the world ; the body spiritual whereof having power, when any cause of the law divine happened to come in question, or of spiritual learning, that it was declared, interpreted, and shewn by that part of the said body politick, called the spiritualty .... which has also been reputed of that sort, that both for knowledge, integrity, and sufficiency of number, it hath always been thought, and is also at this hour, sufficient and meet of itself, without the intermeddling of any exterior person or persons, to declare and determine all such doubts, and to administer all such offices and duties, as to their vows spiritual do appertain." And then, after stating the principle of administration of justice by the " tem- poralty," it closes with the declaration that " both of Chnrch and State. 33 their authorities and jurisdictions do conjoin to- gether in the due administration of justice, the one to help the other." In this view, my Lord, of the royal supremacy, we were instructed, and felt that to those principles only we were pledged ; and this has been the accepted and ordinary view set before priests of the Church of England during their preparation for holy orders by those in highest esteem as our teachers, as e. g. of late in a volume now generally recommended to candidates for the ministry. The passage relates to legislation in Church matters, but entirely corresponds with the principles which the Preamble of the statute lays down as to jurisdiction. " The supremacy of the Crown must not (accord- ing to our constitution in Church and State) be considered as an arbitrary and unlimited supre- macy. Everything in England is limited by law, and nothing more than the power of the Sovereign. In matters of State, the power of the Crown is limited bv the two Houses of Parliament ; in the affairs of the Church, it is limited also by the two Houses of Convocation. Legally and constitu- tionally the Sovereign, or the Sovereign's Govern- ment, can do nothing concerning the state of the Church, her doctrine, and discipline, without first consulting the clergy in Convocation, and the laity in Parliament ; so that, when we acknowledge the supremacy of the Crown^ we do not put our con- sciences under the arbitrary guidance of the Sove- c 24 Why not committed reign or the Ministry ; for we know that legally nothing can be imposed upon us but what has received the consent of our clergy and laity as represented respectively." ^ This same principle is declared to be the law by which we are to be ruled in the Declaration placed before the Thirty-nine Articles, and thus enshrined in the Prayer Book, where it is stated, that the claim of the Sovereign is to be " supreme governor of the Church of England," but that as to the mode of carrying out this supremacy, " if any dif- ference arise about the external policy, concerning the injunctions, canons, and other constitutions whatsoever thereto belonging, the clergy in their Convocation is to order and settle tliem, having first obtained leave under our broad seal so to do." These, then, are the standard principles, the constitutional modes of exercising legislation and jurisdiction in which we have been taught, and which live on in the authoritative statements by which we have been enabled alike to meet the cavils of Koman adversaries, to save often from Rome those of our brethren whose minds had been troubled on the subject, and to confirm us in the belief that our Church had not deviated from our Lord's command, to " render unto Caesar the things which are Caesar's, and to God the things that are God's." ^ Harold Browne, now Bishop of Winchester, Exposition of Tliirty- nine ArticleSy Art. xxxvii. to present Covert of Appeal. 3 5 But how are we to explain our position in reference to the Acts of Parliament quoted above, which have determined the formation of the pre- sent Final Court of Appeal, and the absence of any remonstrance against it till within the last few years ? The explanation appears to me not to be difficult. During the Elizabethan and Stuart reigns, and that of Anne, the State more or less actively sup- ported the Church, and for the most i^art High Church principles prevailed. The Crown was favourable, and Parliament, composed only of Churchmen, was often more High Church than the bishops themselves. Convocation had a living- voice, and was, not uniformly, yet ordinarily, the referee in all matters within its S23here ; and though at times passed by, the Sovereign autho- rity ignoring it, yet in principle it was always recognised as the constitutional organ of Church government. The Court of Delegates was for a long period composed only of bishops and ecclesiastical lawyers, and from 1609 up to 1832 that court had only had three cases of heresy brought before it, none of which came to any issue, one being disposed of in another form by the Court of Queen's Bench, one going to Convocation, and in the third the appeal was dropped.^ The Church, if it could trust the State, has never ^ Mr. Gladstone's Remarks on the Royal Supremacy, p. 70. c 2 36 Cha7ige of Circnmstances been exact in claiming its rights in matters of external policy. Anomalies might thus occur in practice, while yet the general constitutional prin- ciple ordinarily prevailed. Even had it been otherwise, we are not accustomed to refer to the Tudor or the Stuart reigns as patterns for consti- tutional precedent. Then the Greorgian era came, with its loss of any sense of the spiritual character of the Church or its claims ; and this lasted on till quite modern days ; so much so, that when the appellate jurisdiction of the Crown was transferred by Parliament from the Court of Delegates to the Judicial Committee of Privy Council, as the late Lord Brougham remarked, there was no thought of Church questions being affected by the change. Nor, indeed, was it till the Gorham Judg- ment occurred that men awoke to perceive the inroad of State jurisprudence, that had imper- ceptibly crept in to the general secularisation of the Church's judicial system. For these reasons, my Lord, I believe myself warranted in saying that, while it is clear that the appellate jurisdiction is vested in the Crown of this realm, it is not true that the Church is committed to the form of the Court by which this j)ower is now being exercised. It is not in accordance with the Statute of Appeals. The persons composing it are not necessarily even in communion with the Church. The Church has had no voice in its for- mation. During the period above alluded to no aggravating the Case. 37 hostility arose, partly because of the concurrent action of Convocation which served as a safeguard, partly because of the favourable attitude of the State; partly, also, because no questions arose on which there happened to be any collision. But now all these circumstances are reversed. The Crown acts through the Prime Minister, who is the representative of the popular will ; the popular mind is guided by journals which recog- nise only the world-power. Large masses of the population, separated from the Church, direct all their energies to lower its doctrine and its dis- cipline, and many are leagued together to destroy it. Parliament is composed of men of all creeds. The intensely active mind of the day is ceaselessly stirring controversy, and questioning the most vital points of doctrine. Convocation, though slowly recovering life, is studiously disparaged, and practically ignored by the State. These changed circumstances have involved the Church in a far worse condition as to constitutional privileges, than it occupied during the former period ; worse now under a juster administration of laws, as to all but spiritual things, than under the comparative tyranny of the Tudor and Stuart reigns; the State becoming truer to the spirit of the constitution in secular matters, but far less true to the Church. And yet, from the circum- stances noted above, guarantees for her truth are far more imperatively called for. 38 Real Dangers Do not suppose, my Lord, that I am writing in the interests of disestablishment. I dread disesta- blishment, with its enormous losses, its unknown risks, its terrible probability of the disruption of this great historic Communion. I would not have exposed myself to possible misconception, and the displeasure, it may be, of some whose favourable opinion is dear to me, in thus venturing publicly to address your Grrace at such a critical juncture, but from a desire to avoid such a catastrophe, and entreat a hearing for what alone, as I believe, will bring "peace" to our "Jerusalem." Let the present strain continue ;. let the established Courts still enforce what we hold to be a double wrong, an untrue interpretation of the mind of the Church, and an unconstitutional method of juris- diction ; let it be taught, as lately in a letter, made public, of one whom all regard with respect, that the precept, " submit yourselves to every ordi- nance of man," means obedience to statute law in all Church matters short of the contradiction of a positive divine commandment, so that C^sar be- comes the representative of Grod in spiritual equally as in temporal tilings;^ and if, which most surely 1 Let me, in contrast with the letter alluded to in the text, quote from a well-known and standard commentary, to show in what counter-principles we have been instructed as to the interpretation of the Word of God ; "The Apostles and elders meet in council in Jerusalem, they frame and promulgate a decree, and the question is settled. Thus the dispute was made to be a source of peace by which disputes are ended. It was made to supply a precedent and rule for the practice of the Church in all ages, and to establish a principle of universal application— that for needing to be met. 39 is the case, thousands and tens of thousands, yea, and hundreds of thousands, reject this view of the Church of England, firm in their convictions, and resolved to uphold them at all cost, then, my Lord, what possibly can be our prospect but perpetuated, or rather increasing conflict, and breaches opening in the walls of the holy city, through which the enemy will pour like a flood to despoil the sanc- tuary of God ; and even quiet men, most favourable to the union of Church and State, welcome the portentous change, from very weariness, as the only available relief from the bitterness of con- troversy ; though the strife cease not, only, the reli- gious difficulty being shelved out of the world's way, its bitterness continue under new forms and other conditions. Nor think, my Lord, that I am supposing an imperium in imperio, or a free Church in a free State, as if we could expect, or should wish, to have the benefits of establishment without its restraints, or the support and sympathy of this great people without the concurrent action of the laity within their proper sphere. I am taking it for granted all along that the consent and approval of the Crown is needed for our sy nodical action, and the settlement of controversies, whether concernin;j; doctrine or discipline, and for the quieting of men's minds, and the appeasing of strife, resort should be had, not to any one man in the Church, not to Peter, not to the Bishop of Rome, but to the Holy Ghost Himself, speaking in Councils and Convocations of the Church, praying for His guidance, and building their decrees upon His Word." — Bishop of Lincoln's l7itroduction to the Acts of the Apostles, p. xxi. Quarto edit. 1857. 40 Suggestions for Consiitictional Reform, the sanction of Parliament equally needed for what concerns the laity ; and that we of the priest- hood should be amenable to Courts, and subject to our bishops, acting according to canonical rule. I do not plead for avofiia, or for a licence which is destructive of true liberty, or, as some charge us with desiring, that the self-autonomy of the priest should be the rule of the parochial life of Eng- land. Far from it ; I plead for the restoration in spiritual things of that for which every true Eneflishman would do battle to the death in civil things — our constitutional rights and liberties. If I am asked what kind of government would be true to this ideal, and what I should feel would rightfully command a conscientious obedi- ence (while incompetent to enter into details on such a complex range of subject matter), I would venture to suggest, as a rough sketch, the follow- ing principles as capable of being applied to a true readjustment of the relations between Church and State. Let Convocation, as the sacred synod in this realm, be bond fide regarded as the legislative chamber of the Church, its acts, if approved, re- ceiving legal force from the Crown or from Par- liament, as the case may be. Such questions as that now agitating the Church would, I conceive, be far more properly decided in Convocation than by dry pleadings in a court of law — a revision or settlement of our ceremonial Suggestions for Constitutional Reform, 41 system being as much a matter for Church legisla- tion as the revision of the Liturgy. Let there be attached to Convocation, but sitting outside of it, a body of lay referees, whose assent should be requisite to any measure before it is submitted to Parhament to obtain legal force, according to the provision of a bill proposed by tlie present Bishop of London. Let the old Diocesan Consistory Courts and the Provincial Courts be reformed to meet the needs of the present time, by regulations made in Convoca- tion with the approval of the State. For the settlement of such questions as Lord Penzance's' Court has been created to adjudicate, supposing Convocation had laid down the main lines of our ceremonial system, the Prayer Book rule might then well be followed, " the parties that so doubt, or diversely take anything, shall always resort to the Bishop of the diocese, who by his discretion shall take order for the quieting and appeasing of the same," ^ the Bishop applying to individual cases the rules of service generally determined by Convocation with consent of Par- liament ; not the Bishop acting personally alone, but assisted by some court, or by assessors. With regard to the great crux, the Court of Final Appeal, it would be impossible for the Church of England ever to be content with it, as it is. For such a Court to decide what is the ^ Preface concernino; the Sers^ice of the Church. 42 Constitutional Refo7nn doctrine or the use of the Church, cannot but be fraught with danger to the Church's highest interests. As such a Court, in matters of science, would necessarily refer to experts for their opinion, so surely, on the face of it, it must appear reason- able that on strictly theological questions reference should be made to theologians. Bishop Blomfield, with the approval of certain other bishops, pro- posed in the House of Lords, that in all cases of doctrine such a reference should be made to the Upper House of Convocation. This gives an idea of the j^rinciple to be pursued ; but it might, I conceive, be better carried out by a body, com- posed partly of bishops, partly of theologians, chosen by the whole of Convocation, which we acknowledge to be " the Church of England by representation." A judgment thus obtained from representatives of the spiritualty ought surely to be regarded by the State as decisive in matters of pure doctrine or usage, while the State Court would judge of matters of fact, and questions of temporalities. If the Church is acknowledged to be the " witness and keeper of Holy Writ," it could be no loss of dignity to the State to accept at its hands the declaration of what is or may be held among us. Should some such constitutional reforms as I suggest be impracticable, then the only means that remain to give hope of peace would be the more generous dealing with the High Church party, the trne Remedy. 43 giving fair play to the Catholic side of the Church, which holds to and jealously endeavours to pre- serve its continuity with the past ; an allowance of the main points in dispute being assured to us at least as permissible ; which would to some extent tide over the difficulty, supposing the unhappy policy of 1874 be suffered to rest undisturbed as a dead letter on the Statute book. At all events, I would beg most earnestly to be understood as not wishing to be disobedient to law, or recognised authority, only let the law and the authority be such as the Church can accept, and such as it canonically receives, consistent with its spiritual claims and the liberties which the State by its many pledges has bound itself to maintain — such as alone can guarantee to us the truth we are bound to uphold^ and the glory and the beauty of the worship of Almighty God, which is the true expression of our life in Him. In conclusion I would remind your Grace of two important facts in the recent history of the English people. Twice within our memory England has been brought to the verge of a revolution ; once through an insurrectionary spirit aroused by the dispropor- tionate representation of the people in the House of Commons ; the other time through a similar spirit caused by the artificial restrictions upon com- merce, resulting in the dearness and consequent scarcity of food. In the first case, the disturbance 44 Conclusion. was calmed, and the danger averted, by a truer adaptation of our representative system to the increase and changes which had taken place in the population since its original settlement. In the other case, the distress was removed and peace restored by a more enlightened regard to the laws which determine the wealth of nations, the surplus produce of one country being intended to supply the deficiency of another. In both cases the remedy was the same ; it was found in having recourse to constitutional principles ; in the one case by a reform grounded on a truer regard to the principles of our popular government ; in the other by a relaxation of restraints, grounded on principles of a higher order, the laws of the good providence of God. I would express my conviction that the unhappy disorder and imminent danger now affecting the Church of England can, by God's blessing, be remedied only by similar means, viz. by having regard to the principles of her constitution. If, my Lord, in thus venturing to speak, I have said aught at all disrespectfully, I would earnestly beg your forgiveness. If I err in any particulars, I would gladly acknowledge my error. After five and forty years' ministry in the Chuicli of England, however unworthily fulfilled, having now nothing that concerns me so much as the account which I must shortly give at a higher than any earthly tribunal, without a thought of Co7ichision, 45 questioning the great mission of our Church, and the gracious Providence that has guarded it, and its mighty powers for good to an ever enlarging portion of the world, I cannot but urge an earnest prayer that, overlooking any faults committed through earnest zeal, your Grace, together with the rest of the bishops, may be not unwilling to consider the causes that underlie the agitation that now prevails, and, under the guidance of the good Spirit of God, provide some remedy adequate to the need, and true to the divine character of our Church. I am. Your Grace's faithful and obedient servant, T. T. CAETER.