§ Order of the Day for the Second Reading, read.
The BISHOP of LONDON* I rise to move your Lordships to give a second reading to a Bill for amending the law with reference to the administration of justice in Her Majesty's Privy Council in appeal from the Ecclesiastical Courts; and I do so, under an almost overpowering sense of the difficulty of the task which I have undertaken, and of my own inability to perform it in a manner at all adequate to its importance—its importance, my Lords, with reference to the consequences which are likely to follow from your Lordships' reception or rejection of the measure. My Lords, I am not apt to indulge overstrained or extravagant feelings of hope or fear, nor am I accustomed to employ exaggerated language in expressing them; but I do assure your Lordships, in the words of truth and soberness, that I believe it to be impossible to over-rate the momentous consequence of the issues which hang upon that alternative. I will not now describe them more particularly. It is enough to say that they involve not only the peace, but the integrity of the Church of this empire. I allude to them now, only for the purpose of showing to your Lordships why it is that I approach this question with fear and trembling, under a painful apprehension lest the sacred and important interests which it involves, should suffer detriment from the injudicious arguments or feeble reasoning of its advocate. But, my Lords, I feel at the same time that just measure of confidence, which ought to be inspired by a settled convic- 599 tion, that the cause which I have undertaken to plead, is substantially the cause of justice and truth; and that whatever may be the measure of success which will now attend it, it is a cause which must ultimately prevail. We contend, my Lords, for a great fundamental principle. We may possibly suffer a disappointment; but we shall not be disheartened; we may be perplexed, but not in despair.
My Lords, I am so deeply impressed with the importance of the duty which I have to perform, and so fearful of omitting any argument which might be urged in favour of the measure which I desire to recommend, that I may perhaps be led to trespass upon your Lordships' patience at somewhat greater length than it is my wont to do. If such should be the case, I must crave your Lordships' indulgence. For my own sake I will study all practicable brevity; for it is not without difficulty that I now stand to address your Lordships. But if I should be forced to occupy a larger portion of your time than it may be convenient or agreeable to your Lordships to devote to me, I must entreat your indulgence, in consideration both of the great importance of the subject, and of the peculiar circumstances under which I address you. For, my Lords, it is a difficulty of a peculiar kind which embarrasses me. I must state it fairly and frankly, and I hope so to state it as not to be wanting in the respect due to your Lordships, nor so as to give any just cause of offence. But the truth is, my Lords, that the subject which I have to bring before you is one with which your Lordships are not so familiar as I could wish you were.
I have to invite your Lordships' most serious and earnest consideration of a question, which, I fear, is far less interesting to you than the ordinary topics which engage your attention in this House. I have to awaken, if possible, a new set of thoughts and feelings, and to enlist them in favour of a measure which has none of the attractions of party interests, or political affections. I have to persuade you—would I could hope to succeed in the attempt!—to lay aside for a time your everyday habits of thoughts, as relating merely to the concerns of civil government; and to think and act in your character of members of that great spiritual polity, to which you are bound by ties of duty as sacred and as stringent as those by which we, who are its ministers, are bound; although the duties which you owe to it be not all 600 of them the same in kind. But, my Lords, let me not be misunderstood. Do not imagine that I desire you to put out of sight, for an instant, while legislating for the Church, its relations to the State, nor the mutual claims and duties of the two. On the contrary, it is because I hold it to be essential to the well-being of the State, that the Church should be enabled to discharge its own proper functions without let or hindrance, and that the one should forbear from invading the legitimate province of the other, that I now earnestly entreat your Lordships to direct your attention, more closely and thoughtfully than you are commonly required to do, to the peculiar nature of those functions—the functions which belong to the Church, as the keeper and teacher of God's truth.
Before I proceed to submit to your Lordships some reasons in favour of the Bill, I wish to remove some objections which may possibly be made. It may be said—I do not suppose that it will—but it may, perhaps, be said, that this Bill has had its origin in the feeling excited by a recent judgment of the Judicial Committee of the Privy Council, in a case too well known to make a more particular description necessary. And undoubtedly, my Lords, it must be admitted, that the very great importance of that judgment, and the conflict of opinions and feelings to which it has given rise, have forced us to a nearer and more critical examination of the question relating to a court of appeal in eases of false doctrine, and have imposed upon us the duty of endeavouring to devise some modification of the existing tribunal, which might remove what are very generally considered to be grave objections to its present form. But the necessity of some change in this department of our ecclesiastical jurisprudence was felt long before the recent appeal, at a time when the probability of such an appeal was not in contemplation. It is only surprising that it was not clearly perceived at the time when the Judicial Committee was substituted for the old Court of Delegates. But no such necessity was then alluded to. The reason of which, I suppose, was this: that appeals to that court in suits involving questions of doctrine had been so exceedingly rare—not more than three or four from the first institution of that court—that the contingency of such an appeal came into no one's mind; and as to all other kinds of appeal in ecclesiastical suits, the Judicial Committee appears to be an unobjectionable tribunal, with one excep- 601 tion only, namely, that its members are not necessarily, as they ought to be, members of the Church of England.
In the Bill which I had the honour of presenting to your Lordships in 1847, an important change was proposed in the court of ultimate appeal in cases of false doctrine; or rather, the substitution of an entirely new court for the Judicial Committee of Privy Council: and that proposition was assented to by the Select Committee to whom your Lordships referred the Bill. That Committee included all the Peers who had filled high legal offices, except, I believe, the noble and learned Lord who then filled with so much honour to himself and so much advantage to the country the office of Chief Justice of the Queen's Bench. Amongst them certainly was the noble and learned Lord who now discharges with so much ability the duties of that high office. The clause relating to a new Court of Appeal was carefully considered, and finally assented to by the whole of the Select Committee. The only objection hinted at, was a doubt whether it would be such a court as could work, for want of the necessary machinery. It having been found impossible to carry the Bill through Parliament that Session, it was not pressed to a second reading; but the same Bill, as amended by the Select Committee, was reintroduced in the Sessions of 1848, 1849; and in both years, owing to various causes of delay, was suffered to remain in suspense. A Bill with the same object was read a first time early in the present Session, containing a clause which provided for the erection of a somewhat different Court of Appeal. That clause had been framed in compliance with the suggestion of some eminent persons, whose opinions were entitled to my respect. But finding that many persons did not consider it to be so satisfactory as could be wished, I thought it my duty to refer the subject to my right rev. Brethren, whom the most rev. Primate at my request called together for the purpose of considering it.
The result of our deliberation was, that it would be better to look at the question of a Court of Appeal by itself, and to make it the subject of a distinct and substantive Bill, seeing that the principle it involves is regarded by the clergy in general as of so great importance as to throw into the shade all other measures for the regulation of Church discipline. The question was carefully and calmly considered by us at several meetings, attended by twenty- 602 five out of the twenty-seven Bishops of England and Wales; and the result was, an almost unanimous agreement as to the propriety of introducing into your Lordships' House the Bill now before you. I do not say that we were quite unanimous, or that all of those who agreed to the introduction of this Bill were entirely of one mind as to its provisions; but any differ-once of opinion which prevailed, related rather to the details of the Bill than to its general principle; and the very few who withheld their approval of its introduction, did so, not so much from any objection to the measure itself, as from a doubt as to the expediency of bringing it forward, without having first ascertained that it would have the support of Her Majesty's Government. Some of my right rev. Brethren thought that the Bill would require, or admit of, some modification; and if it should be suffered to go into Committee, I shall be ready to pay the most respectful attention to any suggestions for that purpose, provided that they do not materially interfere with the essential principle of the Bill.
My Lords, I have said enough to prove that the proposal for modifying the existing Court of Appeal is not the offspring of recent excitement, but had its origin in an opinion long entertained, that some change was absolutely necessary in the constitution of that court, as a court of ultimate appeal in cases of false doctrine.
Another objection, which may possibly be made to this Bill, I deem it necessary to meet by anticipation, as being one of far greater importance; but, as it appears to me, not less easily removed than the former, namely, that it interferes with the Royal Supremacy. And yet I can hardly think that such an objection will be seriously urged against the present Bill, when no demur was made on that ground by those who were most competent to discern such a fault, in the Bill of 1847, the provisions of which, as it seems to me, were far more open to the objection. If, indeed, my Lords, that objection could be substantiated, if it could be proved that this Bill went to interfere with the Royal Supremacy, properly understood, I should at once desist from urging your Lordships to give it a second reading.
My Lords, I am not one of those who think that the Royal Supremacy, in matters ecclesiastical, is an intolerable burden on the Church, in principle at least, whatever it may be made in practice. It 603 was not only acknowledged, but gladly resorted to by the early Church. The history of the Councils abounds in examples. I regard it, not as an inevitable evil, but as a substantial good; a protection against foreign domination and spiritual tyranny, and no unimportant security even for civil liberty. It is a prerogative of the Sovereign, not resting on the ground of any recent or newfangled claim, but a jewel in the ancient Crown of this realm, plucked from it for a time by a foreign and intrusive Power, and transplanted to his own tiara; but reasserted to its rightful owner by the unanimous determination of the spirituality and temporality just before the reformation. It is in truth that just and necessary prerogative, which, as our Articles express it, "we see to have been given always to all godly princes in Holy Scriptures by God himself, that they should rule all estates and degrees committed to their charge by God, whether they be ecclesiastical or temporal, and restrain with the civil sword the stubborn and evil doer."
But this supremacy of jurisdiction, my Lords, is to be exercised by the Sovereign in things ecclesiastical, as it is in things temporal, by means of duly constituted Courts. Our Monarch is supreme Governor in all spiritual and ecclesiastical things, as in all temporal causes and things; in the latter by means of judicial tribunals, established either by common law, (which presupposes the universal consent of the nation,) or by statute law, which implies such consent given through its organ the Parliament; in the former, by means of Courts established either by ancient custom in the Church, (which supposes an original canonical authority,) or by the Crown, with the assent of the Church's Parliament, its convocation. The Sovereign then is supreme Governor, in causes spiritual, under precisely the same restrictions as in causes temporal.
Whatever court, therefore, legally constituted, is the Queen's Court, is a means whereby the Royal Supremacy is exercised, and cannot be said to infringe it. The Church, indeed, may have some reason to complain of an ecclesiastical tribunal, which is established without its consent given in convocation; but the Sovereign can have none, on the score of the supremacy.
But one great recommendation of this present Bill, as compared with those to which I have alluded, is, that it does not go to substitute a new Court for that which 604 already exists, but only directs a particular course of proceedings in certain specified cases of a very peculiar nature, requiring a peculiar provision. I will now proceed, my Lords, with all practicable brevity, to trace the history of that Court, and to show how there has been a gradual and almost unnoticed departure from what I think may properly be called constitutional principles.
The first Statute respecting Appeals, is that of 24: Hon. VIII. c. 12 (1532), which relates only to appeals in causes of wills, matrimony, divorce, tithes, oblations, and offerings. It is deserving of observation that this Statute, which refers in its preamble to the prerogative of the Crown, as supreme in its authority to render justice in all causes, temporal or spiritual, expressly recognises the authority of that part of the body politic, called the Spiritualty—as "sufficient and meet of itself, to determine all doubts, when any cause of the law divine happens to come in question, or of spiritual learning." It makes appeals to the Archbishop's Courts final, in the causes to which it relates, except where the King is concerned, and then the appeal is directed to be made to the Upper House of Convocation, whose decision is to be conclusive.
In the following year, (1533,) the Statute 25 Hon. VIII. c. 19, was passed, which enacted, that "for lack of justice in any of the Courts of the Archbishops of this realm," an appeal should lie to the King in Chancery, and that upon every such appeal, the Crown should appoint delegates to hear and definitively determine the cause. Afterwards, however, in virtue of the prerogative, the Crown was considered to have the power of issuing a Commission of Review, for the purpose of revising the judgment of the delegates. This statute determined the course of appeals without any reference to the Royal Supremacy.
The Statute 26 Hon. VIII. c. I, declared the King to be supreme head in earth of the Church of England, and gave him authority to "visit, repress, and correct errors, heresies and abuses, which by any manner of spiritual authority might lawfully be reformed." This statute was repealed in Queen Mary's time, and was never revived. But the Statute 1 Eliz. c. 1, gave a like power to the Queen; and it also gave her what the former statute had not given to the Crown—the means of exercising that power by the High Com- 605 mission Court, afterwards made an instrument of great oppression and cruelty, and finally and deservedly abolished by the 16 Car. I. c. 11. But inasmuch as this court possessed not an appellate but an original jurisdiction, the ancient appellate jurisdiction of the Court of Delegates remained in force, having been in the first instance established by the Legislature, independently of the Royal supremacy, and before that supremacy had been clothed by the statute law with any jurisdiction. In process of time the Court of Delegates fell into disrepute, from causes which the noble and learned Lord opposite (Lord Brougham) had pointed out, when at an earlier period of the Session I touched upon the question of a new court of appeal. The Statute of the 2nd and 3rd William IV. c. 92, abolished that court, and directed appeals to be carried to the King in Council, and that no commission of review should in future be granted.
In the following year an Act was passed constituting a Committee of the Privy Council, consisting of certain specified Members of the Council, to whom the King might from time to time, by appointment, or his sign-manual, add any other two Privy Councillors, to hear all appeals which might be brought before His Majesty in Council, and to make a report, or recommendation thereon to His Majesty in Council for his decision thereon.
It is now, my Lords, my duty, a delicate and painful duty, but clearly necessary to the right performance of my task, to point out what I consider to be the principal objections to the existing Court of Appeal. It is a painful and delicate duty, because I speak in the presence of some of those distinguished persons who are members of that court, for whom individually I feel the sincerest respect. No person is more thoroughly impressed than I am with a conviction, that as Judges, in all matters relating to the administration of the law, they perform their duty in the most admirable manner. My objection is rather to the principle on which that court is constituted, than to the mode in which its members discharge their judicial functions. I am bound to say, that, as far as my own observation extends, and judging from the reports of others, there can hardly be a more satisfactory tribunal of ultimate appeal, in all cases but those which involve a question of purely spiritual discipline, than the Judicial Committee of the Privy Council as at present constituted. In all 606 matters requiring judicial acuteness and calmness, impartiality and firmness, for the discovery of the truth of facts, and for the explanation and application of the law, nothing more is to be desired. It is only when questions of doctrine arise, and points of faith are to be determined, that I object to that tribunal as incompetent; it is competent to decide all questions of ecclesiastical law, but not matters purely spiritual, involving questions of divine truth; for this office it is not properly qualified, with reference either to the Church's original constitution, or to the personal qualifications of the Judges.
And hero, before I proceed to examine that question, I will venture to state generally what, in my opinion, are the objects which the State and the Church may be supposed to have in view, in constituting ecclesiastical tribunals. So long as these objects are steadily kept in view by both parties, there is no ground of alarm for either; and I beg to assure your Lordships, that it is with a view to these objects alone that I now seek to remodel— no, not to remodel—but to give new efficiency to the existing Court of Appeal. I apprehend it to be the duty of the State to preserve inviolate the original status of doctrine and discipline agreed upon by the Church and State; and, secondly, to keep all ecclesiastical Judges to the terms of that settlement, and within the limits of their lawful jurisdiction. On the other hand, the duty of the Church, I conceive, is to preserve its doctrine pure, and its discipline inviolate; and, secondly, to have in the last resort a bonâ fide power of correcting errors in those respects committed by the civil tribunal, and so to avoid the danger of a collision with the State.
I know what would be the constitutional mode of carrying these purposes into effect; namely, to permit the Church to deal synodically with questions of heresy or false doctrine. But my whole course of argument proceeds on the assumption that such permission is not likely to be conceded to us at the present moment, and that the want of that freedom makes the present measure all the more necessary. Suffer me, my Lords, to remind you in passing, that the Church of England is the only Church in Christendom which is deprived of the privilege of synodical deliberation. I do not now intend, my Lords, to touch upon that as a ground of complaint—the subject is too large and too important to be discussed incidentally; but 607 I allude to it as a strong reason for acceding to the wish entertained by a very large body of Churchmen, both lay and clerical, that questions of false doctrine, when they arise, and must of necessity be decided, may be referred for decision to the Bishops of the Church of England.
I now proceed to state some of the reasons why I think that the Judicial Committee is not altogether a competent tribunal for the determination of such questions. In the first place, the Judges are exclusively laymen, some of whom are not qualified by their previous studies and habits of mind to deal with purely spiritual questions. Secondly, some of them, possibly a majority, may not only not be members of the Church of England, but may entertain opinions diametrically opposite to the Church's doctrines. But I am not disposed to dwell upon this objection, because I believe it will be generally conceded, that in this respect a change is necessary, and that no Judges should sit to determine a question of Church doctrine, who are not members of the Church. Putting aside also, for the present, the question whether the Judicial Committee can be considered as properly a Church tribunal, I proceed to speak of its incompetency. I am loth to use that word; but I find it difficult to employ any word which shall not be capable of an offensive meaning; and I must speak the truth plainly, but with the most perfect respect for the individual members of that court. I object, then, to that tribunal on the ground that its members are not competent judges of such spiritual questions as are likely to be submitted to their decision. I am aware it may be said that every educated member of the Church must be considered to have a competent knowledge of its doctrines. I know that this ought to be the case; but I put it to your Lordships to say whether it be so indeed. There are, indeed, some leading features of the Church's doctrine so plain and palpable, that scarcely any one of its members, who has received any religious instruction, can be ignorant of them. But there are many grave and difficult questions in divinity, depending upon a right construction of the Articles, which scarcely ever engage the attention of the laity, especially of those whose profession necessarily turns their minds to other subjects. I can easily imagine a case of this sort brought before lay judges, altogether new to them, and scarcely to be understood without previous study and 608 thought; where they might be puzzled to understand the exact meaning of terms, which, to persons conversant with such matters, are the mere alphabet of theology. Is it likely that they will be able to decide satisfactorily such a question, involving, perhaps, in its consequences, the peace and unity of the Church, when all their previous studies have been in an entirely different direction, and when their minds have not been prepared by the habitual consideration of such matters, to take an exact and comprehensive view of the case before them in all its bearings?
Your Lordships are well aware how much of the law of the land has been formed by the decisions of the Judges. Every decision of a point of doctrine by the Judicial Committee, would form, as in other courts of final appeal, a precedent. Such precedents settle or modify the law; and at last become law themselves. And thus a supreme court of justice may, in some sense, not only administer but make laws. I am well aware that the Judicial Committee of the Privy Council has disclaimed both the intention and the power of determining any question of doctrine, properly so called. But is it so obviously impossible as to render unnecessary any attempt to prove it, that they can give any decision upon a question which turns upon a point of doctrine, without affecting to some extent the doctrine itself, as one which is insisted upon, or not, by the Church? Take any one case of this kind. Suppose them called upon to decide a question, whether such or such a doctrine is, or is not, the doctrine of the Church of England. Their judgment may be to this effect: It cannot be denied that the doctrine in question is the doctrine of the Church of England, but we do not think it indispensably necessary that a person should believe that doctrine, in order to the exercise of his ministry in the Church. Who does not see that a succession of such judgments would injure the character of the Church of England as a teacher and maintainer of the truth? Again: the Judges of our courts of law, when called upon to decide new cases, decide upon certain fixed principles, perfectly familiar to them, which they have only to apply to the facts of the particular case. These decisions are looked upon as faithful and true expositions of the law, because they proceed from those whose thorough acquaintance with the whole system of English jurisprudence, both in theory and practice, renders them per- 609 fectly competent to give them; and so it may be, that those who are set to administer the law, do in some cases make it. So in cases involving questions of doctrine, the Judges, who are ultimately to decide them, may by degrees alter or modify the laws which relate to them. But then they are not versed in divinity, as the Judges of the temporal courts are in the common and statute law, or in the rules of equity. There may be some exceptions to this; indeed I have had the advantage of knowing more than one ornament of the judicial bench, who was well read in theology. But this will not be a case of common occurrence. On the other hand, I think it will not be denied, that in respect of the knowledge and experience required for coming to a right judgment on doctrinal questions, the collective body of the English Bishops would form a competent and trustworthy tribunal.
And this brings me to a consideration of the principle which is embodied in the Bill now under your Lordships' consideration; that the decision of purely spiritual questions should be left to spiritual judges—not merely ecclesiastical, but spiritual judges. I venture to call this a constitutional principle—one which has been recognised in the constitution of this Christian country from the earliest period of its history; and as an evidence of its soundness and expediency, I would remind your Lordships of a dictum of that great jurist, who is reckoned, by universal consent, the oracle of the common law—Lord Coke. His words are these:—
Certain it is, that this kingdom hath been best governed, and peace and quiet preserved, when both parties, that is, 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.This, indeed, is said of the distinct jurisdiction of the temporal courts, and of the ecclesiastical, commonly so called; but the principle applies to the non-interference of lay judges in matters purely spiritual. Your Lordships may perhaps smile, if in illustration of this I go back to the times of our Saxon ancestors; but I wish to trace up-the distinction to the fountain-head of our laws; and, indeed, I shall have to go much further back before I have done. In those times, as is well known, the bishop of the diocese, and the alderman, or sheriff, of the county, sat together in the county 610 court. The opinion of one prevailed in spiritual causes, of the other in temporal. The laws of King Edgar say, "Celeberrimo huic conventui Episcopus et Aldermannus intersunto, quorum alter jura divina, alter humana populum edoceto." And so it continued till the introduction of Norman laws and customs. The statute of Articuli Cleri was not merely an enacting statute, but, as Lord Coke says, declaratory of the common law and custom of the realm. The 13th chapter runs thus:—Also it is desired that spiritual persons, whom our Lord the King doth present unto benefices in the Church, if the bishop will not admit them, (either for lack of learning, or for other reasonable cause,) may not be under the examination of lay persons, but that they may sue to an ecclesiastical judge, to whom it of right belongs, for the obtaining of such a remedy as may be just.The answer is—Of the fitness of a person presented to a benefice, the examination belongs to the ecclesiastical judge. So it hath been heretofore used, and shall be so in future.It is said by Lord Coke, that "if the cause of refusal to institute be spiritual, the Court" (in the case of a writ of Quare Impedit) "shall write to the Metropolitan to certify thereof." In Specot's case, the Court of King's Bench admitted that "it doth not appertain to the King's Court to determine schisms or heresies; and that where the original cause of the suit is matter whereof the King's Court hath cognisance, the King's Court is to consult with Divines, to know whether it be schism or not." Blackstone says, "If the cause of refusal to institute be of a spiritual nature, as heresy, particularly alleged, the fact, if denied, shall be tried by a jury; and if the fact be admitted, or found, the Court, upon consultation and advice of learned Divines, shall decide its sufficiency." Now, this is very nearly the arrangement which I desire to see established with respect to spiritual causes which come before the Judicial Committee. No persons can be better judges of the facts of a case than the learned and able members of that court; and it would be for them to inquire and determine as to the fact of A. B.'s having taught certain doctrines, alleged to have been taught by him; and if he had, then to consult the Bishops whether those doctrines be heretical or not.The Reformatio Legum, the recommendations of which, if King Edward VI. had lived a little longer, would probably have 611 become law, provided, that where any cause of heresy should devolve to the Crown, it should be settled, if a grave cause, by a Provincial Council, or by three or four Bishops appointed by the Crown.
I have already directed your Lordships' attention to the fact, that the first Statute of Appeals expressly declares "that part pf the body politic, called the Spiritualty, to be sufficient and meet of itself to determine all doubts when any cause of the law divine happens to come in question, or of spiritual learning." And when power was given to the King to hear appeals by the Delegates, I conceive it never to have been contemplated, that those Delegates should be other than ecclesiastics, or the Judges of ecclesiastical courts; and your Lordships will bear in mind, that down to the reign of Henry VIII. the Judges of these courts were mostly clergymen; and if not clergymen, they were the substitutes and representatives of the bishops, or of other spiritual persons. It is by no means unimportant to remark, that during the reigns of Henry VIII. and Elizabeth, there is no trace of any of the nobility, or common law Judges, in any commission of delegates, nor afterwards in one commission out of forty, till the time of the Great Rebellion. In the celebrated case of Whiston, Queen Anne, in answer to a petition respecting the authority of Convocation to deal with charges of false doctrine, declared it to be the opinion of eight out of the twelve Judges, and of the Attorney and Solicitor General, that "a jurisdiction in matters of heresy, and condemnation of heretics, is proper to be exercised in Convocation."
Having thus, my Lords, traced the principle of entrusting the decision of spiritual questions to spiritual persons, through the history of the English law, I must now call your Lordships' attention to the practice of the early Church. I have already said that it willingly recognised the principle of regal supremacy, and had recourse to it for protection and support in the discharge of its spiritual functions. The Emperors not only summoned General Councils, but sometimes presided over them, either in person or by their legates; not for the purpose, at least not for the avowed purpose, of overawing their decisions, but simply to take care that all their proceedings should be regulated according to the canons of the Church, and that there should be no extravagation beyond the line 612 which those canons had marked out as that within which the Church was to exercise its proper jurisdiction. De Marca, in his well-known Treatise De Concordia Sacerdotii et Imperii, cites, as an instance of this, the proceedings of the Emperor Theodosius with respect to the Council of Ephesus. Speaking of the Roman Emperors, who claimed the right of hearing and determining appeals from ecclesiastical tribunals, he says—
Eximia auctoritate potiti sunt Imperatores Romani in rebus et judiciis ecclesiastieis. Sed nullum, ut existimo, proferri potest exemplum judicii canonici, ab uno epiacopo redditi, de quo statim recta via querela delata est ad Principem. Illi judices ecclesiasticos dabant; nunquam autem de re canonica cognitionem suscipiebant, sed de ordine judiciorum.Van Espen, the most celebrated of modern Canonists, says—Indubitatum, examen ac decisionem fidei Ecclesiæ, ejusque ministris, non autem Principibus laicis a Deo concreditum. Nee id unquam Principes Catholioi sibi attribuerunt, sed ipsos Pontifices, et Episcopos, et Ecclesisæ Pastores, Judices doctrinæ nunquam non cognoverunt.And again—.Aliud enim longe est, Principem se interponero promulgationi novæ legis per suas provincias, ejusque executioni: et aliud, velle judicare de ipsis articulis et dogmatibus, sive quid de fide credendum, vel non credendum, definire—nunquam enim a Principis officio alienum esse existimatum est, externum illud jus quod consistit in imperando, cogendo, promulgando, pacem, custodiendo.This is the principle which regulated the exercise of the imperial or royal supremacy in the Appellatio tanquam ab abusu, of which so much was written by the French lawyers and divines, and which is still a subject of discussion—the Appel comme d'abus. The interference of the supreme civil power is limited, according to M. Lainé, as quoted by M. Dupin, in his Manuel du Droit Ecclésiasticjue, to—1. Excess of power in spiritual matters; 2. Violation of the laws and regulations of the kingdom and of the rights of citizens; and, 3. Outrage or violence in the exercise of ecclesiastical functions. But no right of interference has ever been claimed in the determination of purely spiritual questions. This question was agitated in the well-known contest for the liberties of the Gallican Church, in which the celebrated Bossuet bore so conspicuous a part. But long before his time the authority of bishops in deciding questions of faith, independently of the Pope and, à fortiori, of the Prince, had been strenuously assertedby the Doctors of the Sorbonne, as 613 belonging to the episcopal office by divine institution. One of their most celebrated writers, Petrus Alliacensis, afterwards Archbishop of Cambrai and a Cardinal, in a treatise addressed, in the name of the Faculty of the Sorbonne, to Pope Clement VII., asserted, that to exclude bishops from the examination and decision of matters of faith, was contra jus tum divinum quum humanum. This principle is still acknowledged in the ecclesiastical law of France; for, though the Appel comme d'abus is still admitted, it is only in matters which affect the rights and liberties of the subjects, not in questions of faith.I now proceed, my Lords, to adduce some arguments in favour of the Bill, from the analogy of our courts of law. I am aware that the analogy is not perfect; that it does not extend to that provision in the present Bill, which makes the opinion of the Bishops compulsory upon the Court of Appeal; but still it justifies, I think, the essential principle of the Bill, which is, that the court shall take for its guide the judgment of competent persons. Your Lordships are aware that it is a maxim in our courts of law, that cuique in sua arte credendum est; in pursuance of which, when any matter comes before a court which it is not competent, for want of knowledge, to decide, it refers for advice and guidance to those who are. I will read to your Lordships a brief statement relating to the Court of Chancery, furnished roe by a learned friend who practises in that court:—
When a disputed queation of common law arises in the course of a Chancery suit, and is necessary to be determined before the suit can be finally disposed of, it is the practice of the Court of Chancery either to direct the parties to try the question in an action to be brought by one of them against the other for that purpose in a common law court, or to order a special case to be stated and sent to a common law court, for the purpose of obtaining the opinion of that court upon such question. In the former case, the result of an action binds the parties, and is acted on as conclusive by the Court of Chancery; but the Lord Chancellor is not bound to act on the opinion certified by the Judges in answer to a special case, but may, and often does, send a second case, stating the same question, to a second court of law; and even a third case to a third court. It is true that in theory a Judge in Chancery might refuse to act upon any of these opinions, but, practically, the certificate of one or more of the common law courts—according as the case may have been sent to one or more—is adopted and acted upon by the Judge in Chancery, and is made the foundation of the decree, as far as relates to the legal question.With regard to foreign law there was more 614 difficulty, obviously, in ascertaining what it was:—Our courts do not take judicial notice of any foreign laws; and, when a question of foreign law arises, either in Chancery or before the common law courts, it is dealt with as a question of science, to be proved—like matters of fact—by the testimony of witnesses practically conversant with the subject. The principle and mode of proof is exactly the same, whether the question be one of chemistry, or of mechanics, or of French law. None of our courts have jurisdiction to direct any mode of trial before a foreign court; but the evidence on which they proceed is the sworn opinion, orally delivered, of a person learned and experienced in the foreign law.I will here read to your Lordships the opinions of learned Judges, whose names will carry infinitely greater weight than any statements of mine. The first is from that learned and excellent person, whom I have already mentioned in terms—I was going to say of commendation, but I feel that it would be presumptuous to use terms of commendation respecting him; most gladly do I pay the tribute of my deep and unfeigned respect to the late Lord Chief Justice of the Queen's Bench. In the Baron de Bode's case. Lord Denman said—There is a general rule, that the opinions of persons of science must be received as to the facts of their science. That rule applies to the evidence of legal men; and I think it is not confined to unwritten law, but extends also to the written laws which such men are bound to know. Properly speaking, the nature of such evidence is not to set forth the contents of the written law, but its effects, and the state of law resulting from it. The mere contents, indeed, might often mislead persons not familiar with the particular system of law; the witness is called upon to state what law does result from the instrument.Mr. Justice Coleridge, in the same case, said—What in truth, is it that we ask the witness? Not to tell us what the written law states, but, generally, what the law is. The question for us is, not what the language of the written law is, but what the law is altogether, as shown by exposition, interpretation, and adjudication.In the case of the Duchy of Bronte, Lord Langdale expressed his opinion thus:—With foreign laws an English Judge cannot be familiar; there are many of which he must be totally ignorant; there is, in every case of foreign law, an absence of all the accumulated knowledge and ready associations which assist him in the consideration of that which is the English law, and of the manner in which it ought to be applied, in a given state of circumstances to which it is applicable. He is not only without the usual and necessary assistance afforded by the accumulated knowledge and able suggestions contained in the arguments which are addressed to him, but he is constantly liable to be misled by the erroneous suggestions of analogies which arise in his own 615 mind, and are pressed upon him on all sides. These difficulties are obvious enough, even in cases in which he may have before him the very words of that which has proved to have been the law applicable to the event in question. Even if we suppose it to be proved that the law has not been legislatively repealed or varied, and has not fallen into disuse, and that the words have been accurately translated, still the words require due construction; and the construction depends on the meaning of words to be considered with reference to other words not contained in the mere text of the law, and also with reference to the subject matter, which is not' insulated from all others. The construction may have been, probably has been, the subject of judicial decision; instead of one decision, there may have been a long succession of decisions, varying more or less from each other, and ultimately ending in that which alone ought to be applied in the particular case. The difficulty which arises under such circumstances is obviously very great; but it is vastly increased when the law itself, or the form or collocation of words in which the law is expressed, has never been authoritatively expounded, but is to be discovered from decisions or usages, or from the opinions of unauthorised writers, who may have written much that is acknowledged to be existing law, and also, in the same hooks, much which is contrary to existing law. The decisions were subject to be, and may have been, altered by subsequent decisions, and the precise application of them to the case in question may only be ascertainable by means of an accurate historical and legal deduction from all that has passed in the courts on the subject; and a Judge who seeks information as to a foreign law, has not, in himself, the means of distinguishing the correct from the incorrect proposition of a text writer. Whoever has considered the nature of the difficulties which frequently arise in our own Courts in the investigation of English law, applicable to particular cases, and the mode of reasoning and investigation by which it is endeavoured to surmount those difficulties, will perceive what presumption it would often, nay, generally be, in an English Judge to attempt to apply the same process to the investigation of a foreign law, and the consideration of its proper application to particular cases. The rule of English law, that no knowledge of foreign law is to be imputed to an English Judge sitting in a Court of only English jurisdiction, is undoubtedly well founded; and as cases arise in which the rights of parties litigating in English Courts cannot be determined without ascertaining, to some extent, what is the foreign law applicable in such cases, the foreign law and its application, like any other results of knowledge and experience in matters of which no knowledge is imputed to the Judge, must be proved, as facts are proved, by appropriate evidence, i.e. by properly qualified witnesses, or by witnesses who can state, from their own knowledge and experience, gained by study and practice, not only what are the words in which the law is expressed, but, also, what is the proper interpretation of those words, and the legal meaning and effect of them as applied to the case in question.I may refer also to the practice of the High Court of Admiralty. When any question cornea before it, which is to be 616 decided according to the rules of nautical science, the Judge of that Court calls to his assistance some of the Elder Brethren of the Trinity House, and by their opinion he is invariably guided in his decision.I have not yet quite done with the argument from analogy. From our own courts of law I would now direct your Lordships' attention to the practice of other churches. In the Established Church of Scotland, the final decision of all questions relating to false doctrine rests with the Church Courts. True, they consist of lay elders as well as ministers; but they are strictly Church Courts according to the constitution of the Scottish Kirk, for the lay elders are office-bearers in the Kirk. The decision of spiritual questions is left entirely to those courts which the Church considers to be competent to decide them. In the churches of Prussia such frequent changes have been made, and not only, I am sorry to say, in external regulations and questions of discipline, but as to the profession of vital and essential doctrines, that it is not easy to say what the present state of those churches really is. But, according to the projected constitution of 1850, a question of false doctrine, taught by a minister of the Evangelical Church, is to be decided by the Church itself, represented by a General Assembly, a mixed assembly of clergy and laity. With regard to the Roman Catholic Church, subsisting in Silesia, and the Rhenish provinces of Prussia, there is no interference whatever in questions of false doctrine, on the part of the Government, but they are left to the authorities of the Church, even in the case of professors in the universities.
I have now, my Lords, in the last place, to notice, very briefly, some of the objections which have been made to this Bill, partly in the public papers, and partly in petitions against it. And I must say that if no weightier arguments can be adduced against it than those which have been hitherto urged, I do not think that I have much to fear. One objection is, that the Bill proposes to constitute a new legislative body, having power to frame new doctrines. It is enough to say, in answer to this objection, that no power will be possessed by the new court, which is not possessed by the present. Supposing that it was in contemplation to invest any persons with the power, not simply of determining of any particular opinion, whether it be consistent with the Church's doctrine, (which is all that the Court of Appeal will 617 hare to determine,) but of framing new doctrines; surely the Bishops would be more competent to exercise that power than the court as at present constituted.
Another objection is, that the laity are to be excluded. Now one peculiar merit of the Bill is, that it retains the laity in the exercise of their proper and legitimate functions. It will not displace the Members of the Judicial Committee from their office, as judges of fact, judges of the law, and of the rules of justice; but they will have to take their measure of true or false doctrine from those who, I am bold to say, are more competent than themselves to judge of such questions. I am most anxious, my Lords, that the laity should know and exercise their privileges as members of the Church. By the fundamental principles of the Church of England all its, different members, laity as well as clergy, have certain rights, and certain duties, upon the faithful discharge of which the safety and efficiency of the Church itself depend. There are common duties to be performed by all; but there are also particular duties to be performed by particular members, and they are not to interfere with one another.
I am clearly of opinion that no judicial tribunal is likely to be properly conducted, which is not presided over by a lawyer. There is a peculiar habit of mind formed in lawyers by study and long practice. When I was a younger man I used to fancy myself a tolerably good ecclesiastical lawyer; but when I grew older, I learned to recognise that peculiar habit of observation and thought, a sort of idiosyncrasy of legal minds, the result of long training and practice, which enables a lawyer to detect a flaw in argument, and to see at once the real strength or weakness of a case, and to apply to it the rules of law. I would have them employ that peculiar power of mind, in ecclesiastical causes, upon any legal question incident thereto; but I do not consider that it qualifies them to decide any point of religious doctrine.
A third objection is of a rather singular character; the possibility of heterodoxy amongst the bishops. Now this may be a very good reason for requiring some change in the mode of appointing bishops; but not for depriving them of their legitimate jurisdiction and inherent rights, when they have been appointed to their office.
A fourth objection is, that the Bill will give to a majority of the bishops the power of determining the fitness of any man to 618 hold office in the Church. If this objection has any weight, it applies much more strongly to the power, which a single bishop possesses, of preventing any person from entering into the sacred ministry of the Church, by refusing him ordination—a power which, I am persuaded, no man thinks of questioning. Besides, my Lords, as this power must reside somewhere, it is surely much better, if we look to the competency of the judges, that it should be entrusted to fourteen or fifteen bishops, than to six or seven lawyers.
A difference of opinion amongst the bishops on a point of doctrine would undoubtedly present a difficulty; but this is equally true with respect to convocation, or a council; and whatever the difficulty may be, we must look it boldly in the face. The Bill may possibly be modified in Committee so as to obviate that difficulty; but at all events it is not to be put in competition with the important principle involved in the Bill.
The last objection which I think it necessary to notice, is one which has been urged in a public print of great influence, namely, that it may be doubted, how far such an assembly of bishops as the Bill proposes, can be taken to represent the authority of the Church. My Lords, it certainly would not represent that authority. According to the constitution of the Church, no person, nor any body of persons, can be held to possess, or represent its authority, except its legal representatives in convocation assembled. The meeting of bishops, contemplated in this Bill, would not be a synod of the Church, nor would it have the authority of the Church.
My Lords, I will no longer trespass upon your indulgence. I have already done so at greater length than I wished; but on a subject with which your Lordships could not be expected to be familiar, I have thought it necessary to explain my views more in detail than would be necessary on ordinary occasions. I now leave the matter in your Lordships' hands. It remains for you to decide a question of supreme importance to the Church, with whom is to rest, at least for some considerable time to come, the final adjudication of any doubt which may arise, and must be solved, whether a doctrine, alleged to be at variance with the teaching of the Church of England, be really so, or not. Putting aside for a moment the inquiry, who ought to be the judges of such a mat- 619 ter, according to the first principles of church government, the practice of the early church, and the theory of our own, I would humbly ask. Who are most likely to bring to its examination the qualifications necessary to insure a right decision; a number of lay judges, whose studies and thoughts have taken a direction altogether away from the subject-matter to be decided; whose minds have been engrossed by pursuits and inquiries of an entirely different nature; or the collective episcopate of England, consisting of men, who must be supposed to have been trained up from their early years in the study of theology, especially of those branches which relate to the distinctive doctrines of their own church; men, to whom the consideration of such questions must, from the nature of their ordinary duties, be almost of every day occurrence; who are more likely than any other persons to have looked at the doctrine submitted to them in every point of view, and to have qualified themselves to pronounce a just and well-grounded opinion, as to its accordance with the Church's standards of truth?
But, my Lords, I would not be understood to rest my case entirely upon the probabilities of superior fitness in point of theological learning. I rest it, also, and in the first place, on the inherent and indefeasible right of the Church to teach and maintain the truth by means of her spiritual pastors and rulers; a right inherent in her original constitution, and expressly granted to her by her Divine Head, in the terms of the apostolical commission. On this point I will say no more. It will probably be dwelt upon by some of those who will follow me in the debate; but I cannot conclude without protesting against an inference, which may possibly be drawn from the fact of my having laid so much stress upon Acts of Parliament, and ancient practice, and upon the question of comparative competency and fitness of judges, that I think lightly of what is in truth the fundamental and vital principle involved in this subject, namely, the inherent and inalienable right of the bishops of the Church of England to be the judges of questions of its doctrine, duly submitted to them.
I now commend this measure to your Lordships' calm and serious consideration. I am myself almost overpowered by a contemplation of the results which are likely to follow from its rejection. I commit it to your Lordships' judgment, not without 620 anxiety and apprehension; but at the same time not without hope. Looking to its extreme gravity and importance, your Lordships will not be surprised, if I conclude, with somewhat more than ordinary solemnity, by the expression of a devout and earnest wish, that He, who has committed to His Church the sacred deposit of His truth, may guide you to a right conclusion.
§ The MARQUESS of LANSDOWNEfelt it right to take the earliest opportunity of stating the view which he in common with the rest of Her Majesty's Goverment entertained with respect to this most important—he might almost add perilous—measure. He felt the disadvantage under which he laboured in attempting partially to follow a right rev. Prelate who spoke with so much authority upon any subject, but more especially upon one to which he had given so much consideration; in the absence, too, of a noble and learned Lord whom he might still call his much-esteemed and revered Colleague, the Lord Chancellor, who had for years sat upon the Woolsack, and who, if he had been present, would have stated the objections that are to be urged against the Bill with much greater authority and ability than he could. He (the Marquess of Lansdowne) was bound frankly and openly and explicitly to state the alarm he felt at this measure. In stating the grounds of that apprehension, he was sure he might claim the same favourable interpretation on the part of their Lordships which the right rev. Prelate had claimed, that nothing which he should say might be construed to imply anything so contrary to his intention as the slightest disrespect to that sacred and learned body whom the right rev. Prelate proposed to constitute into a new tribunal, for which rev. body, in their proper functions, he entertained the utmost respect. He might state in the very outset that his motive for troubling their Lordships thus early was because he objected at the present moment to any legislation at all on this subject; for he thought that misconstruction would inevitably be put upon any decision for altering in haste that tribunal which was the constitutional tribunal of this country for the trial of such cases, and which had for centuries exercised those functions. He said "in haste," because he could not conceal from himself that the anxiety for passing the Bill in the present Session had been connected with the dissatisfaction which had 621 been felt, if not expressed at the decision of what, as only nominally belonging to it, he might call that august tribunal which was invested by the Crown, by the law, and by the constitution, with the administration of Her Majesty's prerogative. He was satisfied, however, that whatever doubts the right rev. Prelate might have felt as to the particular sentence of that tribunal, he would disclaim the intention to pass a censure upon the judgment which, after solemn argument and consideration, had recently been adopted by that body. But would the public entertain the same feeling? Would not they be led to think that it was because a certain decision had been pronounced by that tribunal, that, within four months afterwards. Parliament was called upon to interfere for the reconstitution of such tribunal? He (the Marquess of Lansdowne) spoke without any difficulty, and without any affectation of modesty upon this subject, as being himself only nominally a member of that tribunal, for it was well known to their Lordships, though it might not be equally well known to the public, that although, as President of the Council, he had necessarily a right of entrance to all its Committees, yet, upon questions of a judicial nature, he had thought it his duty never to interfere. The only connexion he had had with the proceedings of the Privy Council in this matter had been to tender his advice that the right rev. Prelate himself, the most rev. Prelate at the head of the Church, and the Archbishop of York, being Privy Councillors, should be especially summoned and invited to attend that tribunal for the purpose of affording their advice and assistance. He would not conceal from their Lordships that he, in common, as he believed, with the great portion of the clergy of this country, and with a still larger portion of the Church laity, considered the judgment given by that tribunal to be one that had proved satisfactory. ["Hear, hear!" and a cry of "No, no!"] To all Churchmen, in the present unhappy—he had almost said distempered—state of men's minds upon these subjects, it was impossible that any decision could have given perfect satisfaction; but he believed the decision which had been pronounced had given as much satisfaction as the nature and difficulties of the subject permitted. He would ask their Lordships whether they did not think that, under these circumstances, any attempt, not to set aside that tribunal, but to leave it with- 622 out a judgment, without an opinion stripped of all dignity, was not practically an imputation upon that body, to which none of their Lordships who were not prepared to make a great change in the constitution, could assent? He would ask what would be thought if any decision of a court called upon to administer the law, and which attracted more than an unusual share of public attention, was immediately followed by an attempt to alter the constitution of such a court, or to set it entirely aside? Supposing that after the Court of King's Bench, then presided over by Lord Mansfield, had given its decision on the important question of general warrants, a Bill had been instantly brought into Parliament to take away the jurisdiction of that court in cases of libel, would it not have been regarded by all mankind as a reflection upon the judgment so delivered? But although many noble Lords had been much dissatisfied with that decision, no one had suggested that the Court of King's Bench should be deprived of its powers, or placed upon a footing different from that on which it then stood. For these reasons, then, he was not prepared to give his assent on the part of the Government to proceeding further with this Bill, or, at the present moment, with any legislative measure whatever, subject as such measure must be to manifest misinterpretation and misconstruction in the public mind. His objection undoubtedly applied to any Bill whatever upon this important subject—a subject the importance of which he was satisfied their Lordships appreciated to its full extent. While, however, he objected generally to any legislation on this subject, he entertained the strongest objection to the particular measure proposed by the right rev. Prelate. That measure, in his opinion—and he thought it right to state it distinctly—struck a blow at Her Majesty's prerogative, and for the first time introduced into this country a tribunal, the decisions of which, in the language of the Bill, were to be considered as "binding and conclusive," depriving Her Majesty's Privy Council, and consequently Her Majesty Herself, of a power which—not in Protestant times only, since the Reformation, but from the earliest times previously to the Reformation—had always been considered the essential prerogative of the Crown—the government of the Church. The right rev. Prelate had said, that he did not think the exercise of that power had been an intolerable burden to the Church—
The BISHOP of LONDONI went much further; I said I considered, not merely that it was not an intolerable burden, but that I thought it a great good.
§ The MARQUESS of LANSDOWNEwould go further than the right rev. Prelate, for he considered that power indispensable to the liberty of the Church; but by the present Bill, Her Majesty and her advisers would be shackled by decisions proclaimed upon the face of the measure to be binding and conclusive; and whatever opinions Her Majesty might entertain as to the course of judicature she was bound by oath to administer, she would be deprived of all power to carry those opinions out. Every Privy Councillor was required to take an oath, that upon all questions that came before him, he would speak his mind and act according to the decision of that mind; but how was he to do so if this Bill passed, and a decision was sent to him which was to be binding and conclusive, and with regard to which he had no option except that of recording such decision as binding upon the Crown? The agency of a body which was assumed to possess some dignity—the Privy Council—was to be employed for the mere ministerial purpose of sending questions in the first instance to a convocation of bishops, and receiving the decision of that convocation, without being able to touch or alter the judgment, whatever the opinions of the Council might be on the subject. This was a function which he (the Marquess of Lansdowne) thought would be quite as well discharged by his excellent friend Mr. Greville, the clerk of the Privy Council, without setting the whole Council in motion to carry out the decrees of the right rev. Prelates. It was most important to keep in view that the power of the government of the Church was one which, at all times, before the Reformation, at the Reformation, and since the Reformation, had formed one of the most essential prerogatives of the Crown. He was glad to find that this was acknowledged as a constitutional principle in what were called Catholic times. He had in his hand an extract from the Laws of King Edward the Confessor, where it was said, Illos decet vocari reges qui vigilanter defendunt et regunt ecclesiam Dei et populum ejus, imitati Regem Psalmographum dicentem 'Non habitabit in medio domûs meœ qui facit superbiam.'" In the Statutes of Clarendon it was also laid down that—'If appeals arise they ought to proceed from the archdeacon to the bishop, from 624 the bishop to the archbishop, and lastly to the King (if the archbishop fail in doing justice), so that the controversy be ended in the Archbishop's Court by a precept from the King, and so that it go no further without the King's consent." From the period of the Reformation there were a series of examples which he thought established beyond a doubt the fact that the Crown had uniformly exercised the power of controlling decisions in ecclesiastical causes, of pronouncing upon such causes through persons whom it thought fit to employ, and of setting aside the decisions of those persons. He begged to remind the House that the Court of Delegates was constituted not of ecclesiastics only, but of some ecclesiastics and some civilians. The right rev. Prelate had stated, that no noblemen were appointed members of that court, but he had not stated that among the members there were uniformly civilians. He (the Marquess of Lansdowne) had been informed, also, by one of the most eminent civilians in this country, who had had occasion to look through the commissions constituting the Court of Delegates, that when questions of fact and not of doctrine were to be decided, it was required that no decree should be pronounced without the presence and assent of a common law Judge. This led him to take notice of a fallacy which ran through great part of the right rev. Prelate's speech. It should never be forgotten that the question to be determined in the case supposed was a question of fact and law, not a question of what the law ought to be. If the questions to be decided by the Privy Council were questions of doctrine in the sense the right rev. Prelate implied requiring the power—questions relating to the doctrines that ought to be taught, and requiring for their decision the careful study of theology—he (the Marquess of Lansdowne) would entirely agree with the right rev. Prelate, that such a tribunal ought to be constituted of spiritual persons, and of spiritual persons only. But he denied the interpretation of the right rev. Prelate. He considered that they were dealing with arguments and rules which were facts, and homilies that were facts, and that they were not, in the present century, to endeavour to discover whether new doctrines should be added, or old doctrines altered. He was not prepared for this; and if we must enter on such an inquiry, he should not be prepared to conduct it in the way to which the right rev. Prelate pointed. 625 He was no friend to the expediency of re viving convocations, well remembering the emphatic words of one of the greatest statesmen in this country, and one of those most attached to its ecclesiastical establishment—he meant Mr. Burke—who, while stating that the convocation and its powers, though dormant, still existed in this country, and might he called forth at any moment, observed, that those who did restore it might find they had conjured up a spirit which would dare to defy them. He (the Marquess of Lansdowne) doubted whether the calling together of the convocation would conduce to peace; but, if he did advise the assembling of the convocation, he would not exclude from it the inferior clergy. He would not have the assembly composed of bishops, and exclude from it all men who had the misfortune not to be bishops. [The Bishop of LONDON: Hear, hear!] He was glad to hear the right reverend Prelate intimate his assent. If they were to raise up new doctrines, and modify old doctrines, they could only do it by a convocation, and there could be no convocation, according to the laws and constitution of this country, unless it included with the bishops the inferior clergy. He did not say that it would be wrong or unconstitutional to call together the convocation, but he thought it would he in the highest degree inexpedient. The object of the right reverend Prelate, as he had stated, was to produce peace and concord: but it was certain that, when they had got rid of the present tribunal, composed of a limited number of persons, and had substituted for it another tribunal composed of a much greater number of persons, bringing to that tribunal preconceived opinions—he would not call them preconceived prejudices—did their Lordships believe that when all the scattered winds of doctrine which unfortunately prevailed at this moment in this country were forcibly driven within the walls occupied by this new body, a state of harmony and peace would be immediately produced? He doubted whether such harmony would be established either within the precincts of the tribunal, or among the public without the walls who entertained conflicting opinions on the points at issue. If it should unfortunately become notorious that, under this Bill, there was a bare majority of the bishops entertaining a particular view of the doctrinal question submitted to them, while the minority—including perhaps the two archbishops, and perhaps those prelates who were believed by the 626 public to possess the greatest amount of learning and information on the subject—held opposite opinions, did the right rev. Prelate think that the acquiescence of the public—aye, of the clergy—would be given to the decision? Those persons must be very ignorant of human nature who entertained such an opinion—who thought that because in a body of 32 persons 17 or 18 persons decided one way, and 14 or 15 another, the minority would give up their opinions for those of the majority—or that, when the members of the Lower House of Convocation were altogether excluded from the deliberation, they would for the sake of peace and harmony abandon their own views. The right rev. Prelate had said, that the object of his measure was to take the decision of these questions out of the hands of incompetent persons, and intrust it to persons who were competent, giving the reality to the latter, and leaving nothing but the form to the others. He almost thought that the rev. Prelate at one time seemed to intimate that the decisions of this body would, by being repeated one after the other, gradually lead to an alteration or amelioration of the doctrine of the Church.
§ The MARQUESS of LANSDOWNEwas exceedingly glad to hear it. If the object of this tribunal was not in any way to affect existing doctrines—if its powers were to be confined, as he thought they ought to be, to the decision of facts, to determine whether certain doctrines were or were not held by the Church of England, then he could only say that he thought learned laymen were best fitted to determine such matters. The right rev. Prelate had said, that he had observed that pecular idiosyncracy—that constitution of men's minds acquired in practising the law, which singularly enabled them to detect and sift bad from good evidence, and upon that good evidence to found a just decision. He (the Marquess of Lansdowne) asked them for a just decision, not from persons pretending to be conversant with theology, but from persons able to distinguish what were authorities in theology and what were not. The courts of law were frequently called upon to decide difficult cases, with respect to which they did not possess those particular branches of knowledge which would enable them confidently to come to a decision. But what did they do in such a case? Did they call upon the Queen to establish another tribunal? No; but they 627 called before them, as the Privy Council did in the case they recently decided, the persons best qualified by learning and experience to give information on the subject. That had been done with regard to other not unimportant sciences, as well as with regard to theology, which was undoubtedly, in many respects, the most important of all sciences. When the originality of Mr. Watts's invention, which involved the most abstruse and minute questions of chemistry, for which he claimed a patent, was disputed, the case came before the Court of Chancery; but although that court was composed of laymen, who had probably little or no chymical knowledge, and their decision affected various important interests, it never occurred to any one in Parliament to call upon the Crown to constitute a new tribunal, consisting of Dr. Priestley, Dr. Black, or other great chymists of the day, who might thoroughly understand the subject, to decide the case. The Court of Chancery called before it chymist after chymist; it took time to deliberate, and pronounced a judgment which gave to all parties, chymists included, the most perfect satisfaction. Upon the question which had recently been agitated, he (the Marquess of Lansdowne) could pretend to give no authoritative opinion; but, from looking at the declarations of our ancestors, at the statements of eminent divines holding various opinions, at the Articles of the Church, and at the opinions of the best writers on those Articles, he had come to the conclusion that it was the wise intention of the founders of the Church to leave a certain latitude; and he considered that any attempt to go back from that wise policy, so far from conducing to peace and quiet, would be an incitement to dissension. To adopt the principle proposed, would be, in his opinion, the surest way of preventing the efficacious union of good and wise and holy men for the purpose of advancing those truly great interests in which our religion, our prosperity, our happiness here and hereafter were involved. Make points of doctrine a question of the decision of a bare majority of the bishops, and the ferment in the public mind, so far from being appeased, would simply resolve itself into the form of agitated speculation as to the time when other bishops should come with different opinions to form a majority deciding the other way. In such a state of things, when a bishop should be appointed, the question with the public would be, not whether he was a good man, a wise man, 628 a pious man, but what were his views with reference to the last decree of the bishops? There would be endless consideration and reconsideration of doctrines, which, if raised, should be decided once for all—decided by an impartial tribunal—that was to say, by a tribunal with no preconceived opinions, learned in the law, accustomed to weigh evidence, and thus best prepared, when called upon by their Sovereign, to inform Her what ought to be the doctrine, what was the fact, and what the law. Having said thus much, he had no objection to state that, though not prepared to legislate on the subject, he considered it desirable, while preserving the judicature established by his noble and learned Friend opposite, and the prerogatives of the Crown as hitherto exercised, that, for the purpose of showing the public that these questions could not be determined without the great authorities of the Church being fully heard, it should not be left to the Crown, or to the President of the Council, as in the recent case, merely to invite the attendance of right rev. Prelates, but that any bishop, being a Privy Councillor, should de jure be a member of the tribunal in such cases; and he considered further, that any member of the Council, not being a member also of the Church of England, ought not to sit in such cases. He thought that these regulations might very advantageously be a subject for future consideration; but as to the Bill before their Lordships, believing that its only effect would be to aid in keeping alive the heats and differences now unhappily existing, he should move, and he did so most respectfully, that it be read a second time that day six months.
LORD BROUGHAMsaid, having heard the able and practical speech of the right rev. Prelate, as well as the forcible argument of his noble Friend the President of the Council, he considered that he had now heard all that could be said on both sides of the question. He was afraid he should find himself in a position not unusual with Members who belonged to no party in the State—that of giving satisfaction to neither side, being unable either to adopt the Bill, or instantly to reject it. If he was called upon to say "Aye" or "No" to the Bill, as it now stood, he should vote for postponing the second reading. The position in which he himself stood was so peculiar as to encourage him to grapple with the difficulties, neither few in number nor small in amount, that surrounded this important question— 629 important because it trenched upon great constitutional principles, because the people of England had their eyes directed to the controversy, but, above all, important for this reason—that they now saw the venerable fabric of the Church placed in circumstances—God forbid that he should have to say of jeopardy! but—such as must cause anxiety to her sincere well-wishers. It was his (Lord Brougham's) Bill that constituted the Judicial Committee; it was he, also, who had abolished the Court of Delegates. He believed his noble and learned Friend on the Woolsack would agree with him, that the abolition of the old Court of Review did take away from the Church, to a certain extent, the security which she had possessed for the soundness of her doctrines. There was a great schism, at least, of opinion in the Church. That the Church was now threatened with an extension of this schism, with a widening of the breach, he could not doubt; and the House was called upon to take care that no measure should receive their sanction which had the least chance of extending the schism and widening the breach. They were, therefore, called upon, not hastily, or without the fullest consideration, to reject a measure proposed with a view of healing the breach. Upon these considerations he was opposed to an immediate rejection of the Bill; but at the Same time he was favourable to a consideration of how far the objections to it could be removed, which, if they continued unremoved, must of necessity lead to his pronouncing a direct negative against it. He could not help feeling that the Judicial Committee of the Privy Council had been framed without the expectation of questions like that which had produced the present measure being brought before it. It was created for the consideration of a totally different class of cases; and he had no doubt that, if it had been constituted with a view to such cases as the present, some other arrangement would have been made. But was it, as his noble Friend said, dangerous to introduce any measure at all?
§ The MARQUESS of LANSDOWNEI said it was inexpedient at the present moment.
LORD BROUGHAMHis noble Friend Said, it was inexpedient, at present, to legislate, when men's minds were in a fervour upon the subject, and that it was not desirable to make any change in the Constitution of the Judicial Committee just after the recent decision. He agreed with 630 his noble Friend, that if it were proposed to change the constitution of the Judicial Committee radically, that argument would be irresistible; but his noble Friend must not be led away by his own argument. Such was not the proposition. At the same time, as he had already observed, there were objections to the Bill which must be removed before he could assent to it. One of its first provisions was, that by the decision of the prelates as to the doctrines of the Church, the Judicial Committee should be bound. He utterly objected to any such proposition. As a member of that body, he objected to bind the Judicial Committee by any decision out of it; because ho, as a member of it, was sworn to administer justice there according to his own conscience, and not according to the decisions of any other party whatever. But it was said that this provision was analogous to the practice of the Court of Chancery, which directed cases to be sent to the courts of law for their opinion. No doubt such was the practice of the Court of Chancery; but the Court of Chancery was not bound by the opinions of the courts of law. His noble and learned Friend upon the woolsack well remembered the case which Lord Eldon was so fond of telling. Lord Eldon had a question before him —whether an estate was an estate in fee, for life, or in tail; and he asked for the opinions of the courts of law upon it. One court said it was an estate in fee, another that it was an estate for life, and the third that it was in tail. Whereupon, said Lord Eldon, "I decided that there was no estate at all, and I had the unanimous concurrence of all Westminster Hall," except, he supposed, of the three courts. This would convince his right rev. Friend that he was completely wrong in supposing there was any analogy between his own proposition and the practice of the Court of Chancery; for the Bill, as it stood, called upon the Judicial Committee to follow the answer given in any case sent to them by the first meeting of the assembled prelates, which might be carried there by the barest majority. There were twenty-seven bishops, and he feared the history of human weakness precluded the possibility of their being unanimous upon any case so sent to them. There might, then, be fourteen one way, and thirteen another. But the Bill pvovided that a bare majority—a majority of fourteen to thirteen—should bind the Judicial Com- 631 mittee, though upon the evidence before them they might all the while be of opinion that the thirteen were the more trustworthy guides. The Judicial Committee might find that in the thirteen were contained the flowers of the flock, and that in the fourteen were contained—he could not say anything but flowers—but certainly not the most brilliant flowers. It was monstrous to suppose that such a plan could ever be agreed to, for there was no reason or common sense in it. But then it was said, there was great advantage in these opinions being obtained. He thought they would be rather injurious to the peace and character of the Church, as well as to the Judicial Committee. Men were not likely to agree together solely upon account of the great importance of a question, and he feared least of all in theological matters; for he had generally observed in the history of such matters, that they were like gravitation—the attraction was inversely as their distance from each other. The nearer two opinions were together, the greater the heat of controversy between their supporters. Fourteen bishops decide one doctrine not to be the doctrine of the Church; thirteen, that it is. But this was not all. If Mr. Gorham was right, the other party was wrong. Was that all? Was Mr. Gorham alone found to be wrong? No such thing—for there must be a case sent for the opinion of the prelates. See then the responsibility incurred by the Judical Committee. They must pronounce thirteen bishops, the minority, heterodox. Such would be precisely the effect of twenty-seven bishops being consulted upon a man's orthodoxy; for the majority could not decide that Mr. Gorham was orthodox, without also practically deciding that their own minority were heretodox, or, in plain terms, that they were guilty of heresy. How then was this difficulty to be removed? Before entering upon that question, he would just advert to the prevailing errors with which the Judicial Committee were surrounded among the public upon this question. Nothing was more common than to hear the question, "Why do the Judicial Committee, who are mere laymen, presume to reverse the decision of an ecclesiastical court? "His reply to that was, that Sir Herbert Jenner was just as much a layman as he was. "Aye," but it was added, "he is appointed by the Archbishop." But that would neither make him a prelate, a minister, nor even a deacon of the Church, 632 much less a spiritual person; and Sir Herbert Jenner, except he took holy orders, would continue a layman to the end of his time. He was no spiritual judge then, but a lay judge. Then, it is reiterated, he was appointed by the Archbishop, and that made him in some way a spiritual judge. No doubt; but he (Lord Brougham) was appointed to the Judicial Committee by the head of the Church direct, the Sovereign who appointed the Archbishop himself; therefore he was just as little a layman as Sir Herbert Jenner, and his court, the Judicial Committee, was as much a spiritual court as Sir Herbert Jenner's. Then it was asked, how can lay judges arrive at the soundest decisions upon doctrinal questions? Why, just as the Judges arrived at sound decisions upon questions of rights of patent, of chemistry, of optics, of mechanics, or any other science. They would form their own opinions upon the evidence of the most skilful and learned men upon these several subjects; and he contended that it might be just the same with theological doctrine. The doctrines of the Church of England were prescribed by the Act of Uniformity, her Articles, her Liturgy, and her discipline. He would have questions upon these doctrines decided by the Judicial Committee, upon the evidence and the opinions of such learned men as were brought before them; and, in respect to the great importance of the subject, and to divisions of opinion or principle, he was for trying whether any easy and practicable mode could not be given for the explanation of their judgment upon questions of difficulty when they came before them. First, then, with regard to the analogous powers of the Court of Chancery. He was most distinctly in favour of the Judicial Committee being enabled to take the opinion of qualified prelates; but on no account would he consent to their opinion being binding upon the Judicial Committee. In the next place, in order to avoid the anomalous and perilous, or, at any rate, most inconvenient consequences of twenty-seven prelates meeting for discussion, he was for having no such convocation whatever. But he would enable the whole body of prelates, if they pleased, to choose three or four of their number (he should prefer three), whose opinion should be reported to the Judicial Committee to aid them, to inform the consciences of the Committee in arriving at a final decision. But another course had been suggested well deserving of attention—substitute a 633 certain number of prelates, to whom a case, after the manner of the Court of Chancery, may be sent by the Judicial Committee, that is, to the prelates whom they may choose. They would choose, say four, persons in whom the Church had the greatest confidence, and receive the opinions of those four prelates, acting by the majority, as the opinions of the court of law are given. His (Lord Brougham's) mind went entirely with this, and he had reason to think if the Bill went elsewhere it would be considered as materially improving the measure. He spoke as a member of the Judicial Committee over which he had presided for seventeen years, and he declared that in some cases he required the aid of a spiritual body in forming his judgment. He had felt the want of it in Eslin v. Mascot severely. He had now stated his opinion in the hope that these suggestions, being adopted, would lead to a cordial concurrence in the second reading. He trusted they would be adopted. He was against the Bill as it stood, for he considered it perilous in the extreme; but as a sincere Member of the Church, he hoped they would, at least ultimately, be assented to. This was his earnest hope and trust, for he found, from all the communications he received, how alarming and vexing this question was to sincere members of the Church, of whom he was one. Of all churches that ever existed that Church was the most pious, the most tolerant, and the most learned; or, he should rather say, combined these great qualities the most signally. No church but the Anglican Church combined within itself so much of the qualities indispensable to a true church—piety the first, and learning the next, with charity, meekness, and toleration. Of all the intelligent Dissenters with whom he had had intercourse, he had hardly known one whose opinion was worth consulting, who did not say, "God forbid that evil should happen to the Church! for where should we find another so tolerant and so charitable?" He hoped therefore that the existing breach, instead of being widened by legislation, would be healed; that the schism, disquiet, animosity, and anxiety that now prevailed and vexed so many of our fellow-countrymen belonging to the Establishment, but which gave such pleasure to its enemies, would cease; and that the Church itself might rise, renewed and strengthened by its temporary obscuration caused by schism, was a wish in which he heartily joined the right reverend Prelate.
The BISHOP of ST. DAVID'Ssaid, that until recently he had entertained a hope, and at one time a very sanguine hope, that it might have been in his power to give his humble support to the Bill brought in by his right rev. Friend (the Bishop of London); but it had been with great pain that, after very anxious and mature consideration, he had found himself bound to abandon that hope. He, therefore, felt that it was due to himself and to his right reverend Brethren, that he should trespass for a few minutes on their Lordships' attention while he stated the grounds which had forced him to that conclusion. Even though he had continued to entertain, with regard to the measure, that degree of favourable opinion which he once felt for it, he should still have found it impossible to give his assent to it without some material qualifications. He should have thought it neccessary to protest against being considered as agreeing or sympathising with the view taken of this measure by some of its supporters. He should have felt himself called upon to state that certain features in the Bill, which were regarded, he believed, by many as among its chief attractions and its highest recommendations appeared to him as objections and disadvantages, which, though not absolutely fatal, nor sufficient in themselves to require that he should dissent from it, were exceedingly injurious to it. He could not assent to the doctrine which he had seen stated out of doors, and which, if he was not mistaken, he had even heard uttered in the course of the present debate, that there resided in the body of bishops, in their official character, any peculiar and exclusive prerogative, or even any such pre-eminent and transcendent qualification, as to render them the only proper judges on questions of doctrine which might arise within the Church. So far was he from sharing in that opinion, that he should have thought that the constitution of the proposed Court of Appeal would have been greatly improved if there had been associated with the Prelates, or with any number of them, a certain number of members drawn, not only from the other orders of the clergy, but also from the laity. He was not prepared to say whether such an admixture would have been found practicable or not; but he was certainly strongly inclined to think that it would have been an improvement in the constitution of the court, and that it would have removed a material objection to that tribunal. But had there 635 been no question involved in the measure more serious than this, he might, perhaps, have found it consistent with his duty to vote for the second reading, in the hope that its imperfections might be so far removed as to avoid the disadvantages which appeared to him likely to result from the proposed constitution of the court. But there were other grounds of objection to the measure, as proposed by his right rev. Friend, and abstractions from the amendments which had been suggested to their Lordships, which he, at all events, found it impossible to surmount. One of the most exceptionable portions of the Bill, in his judgment, was that clause which rendered the opinion of the assembled bishops upon a point of doctrine binding and conclusive on the members of the Judicial Committee. That clause had been objected to in the course of the present debate upon grounds the strength and cogency of which must be evident to all; and yet he did not think that the arguments which had already been urged against it were either the only ones, or the strongest and most cogent that it was possible to advance. There were others which had not been noticed, but which appeared to him more powerful still. The principal reason why he protested against that clause was, that it interfered in a great degree with the rights of conscience of the members of the Judicial Committee considered not merely as such, but also as Christian men, and as members of the Church of England. The expediency and propriety of having the Committee composed exclusively of members of the Church had been repeatedly insisted upon; and this point being granted, he would ask how it could be reasonably desired or expected that a lay member of the Church, who had devoted much of his attention to questions of this kind, who—barring the alleged spiritual prerogative—was as competent to form an intelligent opinion on them as any bishop of the Church, and who had arrived at a positive and conscientious conviction on the subject—how, he asked, was it reasonable, or desirable, or how was it consistent with the rights of conscience, that such a man should be bound and fettered by the opinions of other men, and that he should be compelled, not only tacitly to adopt them, but practically to carry them into effect? This was in itself a grave objection to the Bill, and yet it was not the objection which weighed most in his mind. He was not insensible 636 to the force of the arguments by which his right rev. Friend had endeavoured to show that the measure was in perfect harmony with the genius and spirit and principles of the Church. He was willing, for argument's sake, to admit that at a different period, and under different circumstances, the Bill might have been well adapted to the general purpose for which it was intended; but he held that they had no right to consider the measure in that general light, but that they were bound to take it in connection with existing circumstances. He could not at all go along with his right rev. Friend in that part of his speech in which he endeavoured to remove from their Lordships' minds the impression which so generally prevailed, that the measure had originated in the peculiar circumstances and transactions of the time. And when his right rev. Friend alluded to the proceedings which took place among the bishops, assembled to consider the measure, his recollection did not quite go along with him on that point. It was very true and was quite notorious, that his right rev. Friend had long been engaged in framing a measure for the same general purpose as the present; but it had always appeared and did still appear to him, that the measure in its peculiar distinctive character bad arisen entirely out of the excitement occasioned by the recent judgment. Indeed, until he heard his right rev. Friend's speech, he had not supposed that there was a man in the country who doubted that fact. He must, therefore, take the liberty of assuming that the special design of the measure was to provide a remedy for a recent existing evil, and to restore peace, tranquillity, and harmony to the Church. And then he would ask their Lordships to consider whether the means were or were not adapted to the end. If the object was to produce peace and tranquillity in the Church, he should wish to know what party in the Church it was likely to conciliate or satisfy. There was a large and powerful party in the Church who, though they did not adopt certain opinions which were supposed to be affirmed by the recent judgment, nevertheless he believed that the judgment was substantially right—that it was a great blessing to the Church—and that it had averted from her a serious evil and danger. He did not mean to deny that even among those persons there were many, probably the majority of them, who were very much dissatisfied with the constitution of the 637 existing court of appeal in spiritual matters, for they bad objected most strongly to the court below, which passed the sentence that had been reversed by the existing court of appeal; and he had a right, therefore, to infer that they were equally dissatisfied with the constitution of the Judicial Committee of Council as a court for deciding questions of this description. But still he believed it to be a clear and incontestable fact, that this was not the party whom the present measure would conciliate. On the contrary, they viewed it with a considerable degree of distrust, jealousy, and alarm. Who then were the persons who were to be conciliated by it? Were they those who had expressed alarm, dismay, and consternation—for such was the language which he had seen used—at the recent decision? Many of them had publicly declared themselves dissatisfied with the present measure. Others, indeed, there were who approved of it. But he would beg their Lordships to consider what were the grounds on which these persons hailed it with their approval. Was it that they were satisfied with it as a final measure? Or was it not rather because they regarded it as a stepping-stone by which they might advance to something beyond it? And this was just the point in which he saw an insurmountable objection to the present Bill. He could not describe its probable practical effect as anything but this—to open a new arena of the logical controversy, and to invite new combatants to try their strength in it, and fight what they would call the battle of the Church. He begged that he might not be misunderstood. He did not mean to intimate that there would be any disposition in the members of the proposed tribunal, either collectively or individually, to give the smallest encouragement to such a spirit. On the contrary, he was convinced that they would do everything in their power to check it. And he would say, with little fear of contradiction, that, if they were to select from the whole body of the Church, and from every order in it, a set of persons to be appointed for this purpose, it would be very difficult to find the same number of men who would in all probability exercise the powers to be vested in them with a greater degree of discretion, moderation, and impartiality, than he firmly believed would be found in the proposed court of appeal. But unfortunately it would not rest with them whether such a spirit should be evoked or not. It would 638 rest with a few unquiet spirits, who would seize this opportunity, would rush into the arena, and grasp the instrument which would thus be placed in their hands for the purpose, consciously or unconsciously, of widening that breach in the Church which their Lordships must all deplore. He thought it was impossible for any one who attended to the signs of the times to say that this was an imaginary or chimerical danger. For his own part he could not shut his eyes to what was passing around him, or his ears to the language used on public occasions by persons who did not scruple to avow that they looked forward to a disruption between Church and State as a possible contingency; as a calamity indeed, but not as the greatest of calamities, but rather as the least of two evils—the other evil being the failure of their own peculiar schemes for the improvement of the Church. And if there were persons who did not scruple to avow this, he could not but strongly suspect that there were others who viewed such a disruption in a still more favourable light, not as an evil at all, but as a positive good. But this much at least he was sure of, that if, as was very commonly suspected—and he wished it was without sufficient grounds—there were persons who considered the "Euthanasia" of the Church of England to be its final merging in the Church of Rome, and who were desirous of hastening that consummation, the course which he thought such persons would be most likely to take for that object would be to produce, if possible, such a rupture and division within the Church as would eliminate from it those of its members who were most firmly attached to the principles of the Protestant Reformation; because they would readily suppose that as soon as that consummation took place, there would be interposed but a feeble obstacle to that which they looked forward to beyond. "Divide et impera," he believed, was still a Roman maxim, and he was afraid it was fast becoming an English one; and he believed that those who were most eager to promote the division would be the foremost to give in their allegiance to the subsequent dominion. There was one way in which this measure would directly tend to that end, and that was by rendering almost inevitable a fatal division in one great body of the Church, namely, the Episcopate. That evil had been already pointed out in the course of the debate; and to his mind it was an 639 unavoidable consequence of the measure, and one which he thought would defy-even the genius and learning of the noble and learned Lord (Lord Brougham) to disentangle from it. He saw, also, great evil and inconvenience in decisions affecting the civil rights of the clergy on account of their adherence to opinions held possibly by a large minority of the bishops of their Church. But he viewed even that inconsistency and inconvenience, great as they were, with less alarm than the possible collisions of the bishops amongst themselves, and the consequent abatement of their authority and influence, both in the Church at large, and in their several dioceses. He did not wish to conceal that in the temporary adhesion which he had given to this measure, he had been chiefly influenced by the authority of the right rev. Prelate who had introduced this Bill, to whom, on account of his eminent station, his long experience, his great ability, and, above all, on account of the uniform moderation with which he had steered, cautiously and judiciously, between opposite extremes of opinion and party, he conceived that such deference was legitimately due. But, after all, he must act on his own convictions, and not on those of another man. Still he did not feel himself bound to divide against a measure from which a majority of his right rev. Brethren anticipated, he believed, much benefit. But it was quite impossible for him, with the convictions and opinions he had expressed, to share with them the responsibility of an experiment which he believed in his conscience, so far from being a remedy for existing evils, was likely greatly to multiply and aggravate the difficulties and dangers of the Church.
LORD REDE SCALEregretted the change of opinion avowed by the right rev. Prelate, because it was another instance of that want of courage in the bench of Bishops which had led to so much of our present difficulties. What was wanted now was a clear and well-defined statement of the doctrine of the Church; and yet the right rev. Prelate seemed to think that the Church might be left to go on with its ministers holding every variety of opinion. Such a state of things was impossible. It was impossible, in the present crisis in the Church, that matters could be left to stand as they now were without more serious evils and more undesirable effects being produced. The right rev. Prelate said that the measure 640 was viewed with doubtful satisfaction by both parties—that it was disliked by low Churchmen, and regarded by high Churchmen only as a step to some ulterior purpose. He (Lord Redesdale) wished there was no such thing as party in the Church. It was the duty of their Lordships, at all events, to disregard party, and to legislate for that body of the Church, that large and important body of men, who accepted the Church as the Church, and were willing to be bound by her Articles, her Liturgy, her formularies. The course now pursued was to give a little temporary triumph to the one party or the other, and by that triumph to weaken the Church; for those who were most active in keeping up extreme parties were not the most numerous or the best members of the Church. In petty disputes, perhaps, the right rev. Prelate's prescription of letting things take their chance might do no harm; but when the doctrines of the Church were assailed, her usefulness impeded, and her members discouraged and distressed, that was the time for the prelates of the Church to stand forward and pronounce, fearlessly and boldly, what her doctrines were. At the present moment, no man doubted what those doctrines were. Not even the Committee of the Privy Council imagined for a moment that the doctrines held by Mr. Gorham were in accordance with the teaching of the Church. All that they decided was, that Mr. Gorham did not so clearly dissent from that which was laid down in the Articles, Liturgy, and formularies that he ought not to be allowed to hold a living. He begged their Lordships to consider this point, for it was one which men did not often put to themselves—too great liberty to the clergy was injury to the laity. Supposing he (Lord Redesdale) lived in the parish to which Mr. Gorham was appointed, was it no injury to be placed under such a man as that? Not one of the right rev. Prelates would say that they entertained the same opinions as Mr. Gorham on the doctrine in dispute; and, indeed, could any one say the doctrine could be held without a variance with the Articles, Liturgy, and formularies of the Church? By this decision, be (Lord Redesdale) would be bound for his whole life under the teaching of a man of notoriously unsound doctrine, and would be bound, with his children and dependents, to submit to it. Were not all the laity who desired to give obedience to those doctrines laid down in the Liturgy, Ar- 641 ticles, &c., in their pure, literal, and natural sense, without any non-natural interpretations, in that position? Their Lordships ought to protect the laity against injury from all or any extremes. The right rev. Prelate (the Bishop of Worcester) very properly withdrew his licence, the other day, from a curate who entertained opinions of a tendency approaching to Rome, and thus protected the parish from teaching contrary to the Church. The right rev. Prelate at the table (the Bishop of Exeter) was equally right in refusing to admit an individual who held opinions of another tendency, but equally dissonant from the pure and literal meaning of the Church's formularies, &c. He could tell their Lordships that the decision against the Bishop of Exeter was only looked upon with satisfaction by men of extreme parties; and by none so much as by the Roman Catholics and the most violent Dissenters. They viewed it with satisfaction, because they saw that it lowered the Church in the eyes of the world, and enabled them to taunt those who remained in the Church with denying one of the Articles of the Christian faith. Was that a position in which they ought to be placed? And, being in that position, the bishops ought to come forward to their relief. The objections raised against the Bill, which placed such matters in the hands of the bishops, appeared to him to be unworthy of any great consideration. That which had been suggested, on the ground that the court might be nearly equally divided, 13 against 14, or something like that, he did not believe to be possible. It certainly would not have occurred in regard to the question recently decided. Was a possible difference of opinion any argument against the establishment of a court? He could not conceive a court in which such a contingency was less likely to arise. It would be composed of learned men, all conscious of the sacred duty they would have to perform, and they were not likely to have great differences of opinion. He accepted the Bill because it constituted the only Church tribunal there appeared to be any chance of getting at the present moment. He had never exhibited any violence of opinion on questions of this kind. No one bad stronger objections to any violent change, and no person was more strongly impressed with the danger of continued agitation; and he should, therefore, have accepted also any alteration in the Bill proposed by the Government in a fair 642 manner, and with a disposition to afford relief to the Church. But when he saw the Government come forward to oppose this measure as a party question, he had very little hopes of anything being done except by the Church bestirring itself in a manner which it had not hitherto done. The necessity for some change had come. Who then could doubt that there was a possibility, nay, that there was a probability, that the next person appointed to a bishopric would be Mr. Gorham. [A laugh.] That laugh would seem to say that such a thing was impossible, but by far the greater number of appointments recently made had been made with a view of showing the subserviency of the Church to the State. A bishop, not along ago, was appointed who laboured under the censure of his university for heresy; and if Mr. Gorham was fit to hold a living, he was also fit to hold a bishopric. Every man who reflected upon the condition of the Church must see it could not last, and, with the Government of the day exhibiting such dispositions, he felt bound to avow himself a "reformer" with regard to the present question between Church and State. A large body of earnest men were now rapidly coming to the same conclusion. The relations of Church and State had been materially altered by changes in the latter, and common sense demanded a revision of the subject. He denied that it was any honour or advantage to the Crown, as the Sovereign, with the most awful responsibility upon Her as head of the Church, to have any person forced upon her by the Ministry. The prosperity of the Church was the strength of the monarchy; and, so far from disloyalty being involved in an advocacy of an alteration in the supremacy, he contended that such a course would, on the contrary, strengthen the Crown. He should support the second reading of the Bill.
LORD CAMPBELLsaid, that if the present were a mere party question, he should not have troubled their Lordships with any observations; but he thought it a great constitutional question, upon which it was his duty to offer his opinions, which he would do very briefly. He could say, with the greatest sincerity, that it would have given him great pleasure if he could have conscientiously supported the second reading of the Bill which the right rev. Prelate had introduced, to whom he gave the fullest credit for the sincerity of his intentions. There was no more sincere 643 friend of the Church than he (Lord Campbell) was. He believed it to be an institution deeply beloved by the great bulk of the people of this country, and that it had conferred, and was likely to confer, the greatest blessings upon the kingdom, and it was with a view to its prosperity that he felt it necessary to condemn the Bill before their Lordships. After a most careful and impartial consideration of its details, it appeared to him to be a most unconstitutional Bill, and one tending to bring about that very disruption of the Church which it was its professed object to prevent. The right rev. Prelate who had introduced it objected to the present constitution of the Judicial Committee of the Privy Council; but it appeared to him (Lord Campbell) that the objections arose from not considering what were the functions of that tribunal. If that Committee had the power to lay down canons for the Church, its constitution would be objectionable; but it was merely a court of construction. Its duty was to explain the meaning of legal documents. He might speak of it with more freedom than other members of it, because, from the nature of the duties which he had now to perform, it was very probable he should never sit as a member of it again. And he had no hesitation in saying that it was better calculated to explain the meaning of the Articles and liturgies of the Church than a court formed from the bench of the right rev. Prelates opposite. He knew it had been said that it was a lay tribunal; but he quite agreed with his noble and learned Friend (Lord Brougham) that it was no more a lay tribunal than the Court of Arches. It was in that respect like the courts of some of the bishops, where laymen were appointed as judges to decide the legal questions sent before them, which the Prelates of the Church would be no more competent to decide than any other class of persons not lawyers. The Prelates to whose sees those courts appertained had appointed laymen to act as their substitutes. Such was the capacity in which his learned friend Sir H. Jenner Fust presided over his court; and in like manner did his learned friend Dr. Lushington preside over his—the one as the representative of the Archbishop of Canterbury, the other as the representative of the Bishop of London. From the constitution of the Church there was an appeal from the Archdeacon to the Bishop, from the Bishop to the Archbishop, and from 644 the Archbishop to the Sovereign. At all times the Sovereign of this country had been considered the head of the Church. The appeal had ever lain from the Archbishop to the Sovereign. It was so in the old Saxon times—it was so in the Constitutions of Clarendon—and so also it had been triumphantly established at the time of the Reformation; and as every Prelate of the Church had his advisers, so the Sovereign had his or her advisers. From these considerations, it appeared to him that offence had been most unnecessarily taken at the Judicial Committee of the Privy Council being a lay tribunal, in contradistinction to the inferior tribunals of the Prelates. But how was it proposed to remedy the complaints? Why, by the substitution of another tribunal, which should be a court purely consisting of Prelates from the two provinces of Canterbury and York. Now, if he thought he would give satisfaction to the Church by supporting the second reading of the Bill, he would do so with pleasure; but he felt that it would be a mere mockery, and that it would be much more respectful to the right rev. Prelates at once to say that it should be read a second time that day six months. The new tribunal, instead of merely advising the Queen, was to bind Her by its decisions. It set forth—"And it shall be binding and conclusive for the purpose of the appeal in which such reference may be issued." So that its decision was to be binding upon the Judicial Committee of the Privy Council; and when they should have reported it to Her Majesty, it was to be binding and conclusive upon Her, and She should have merely to register the decrees of Her bishops. Now it was admitted that the Monarch was the head of the Church of England. Well, but by the Bill before their Lordships, the supremacy would be now vested in the bishops, the Queen having only to record their decisions. The supremacy was no longer in the head of the Church, but in the assembly of bishops who were to dictate to the Sovereign what decree it was necessary to pronounce. For his own part, he greatly preferred the Bill which the right rev. Prelate had introduced at the commencement of the Session. He had said truly that he (Lord Campbell) had been a member of the Select Committee upon a somewhat similar Bill which had been introduced a few Sessions back. But the Court proposed by that Bill was to consist of the three senior bishops, who 645 were merely to be consulted, if necessary. And it was not to be even compulsory upon the Judicial Committee to send a case before that tribunal. It was to be merely optional. It was a permissive power given to the Judicial Committee to ask advice of the bishops.
LORD CAMPBELLbegged to differ with the right rev. Prelate as to the construction of the Bill. His Lordship read the clause, and contended that he had put the true construction upon it. The right rev. Prelate now wanted to throw away that tribunal, and to substitute one that he (Lord Campbell) thought would be the Church's ruin. It was to consist of an assemblage of twenty-seven bishops from the provinces of Canterbury and York, with the Bishop of Sodor and Man, but without any provision for the Irish bishops being present or represented. As the right rev. Prelate had said, there could be no court without lawyers, and therefore there were to be lawyers admitted. Counsel were to be heard on both sides; and after having heard them, the twenty-seven members of the court were to consult together, and give their decision. Now, if there were even a provision in the Bill that their judgment should be unanimous, he would agree to the second reading. But it was by the majority that the decision was to be given, and the minority was to be held up to public obloquy, for the names and opinions and votes of all were to be reported. The appointment of such a tribunal would, he thought, be most mischievous. It would lead to agitation, and finally to the disruption of the Church; and for these reasons he should most decidedly oppose it.
§ LORD LYTTELTONsaid, he felt it his duty as a lay Member of the House, to support the right rev. Prelates on this occasion. He felt, like his noble Friend (Lord Redesdale) that the course of events had so much changed, since the Reformation, the relation as it had then been settled between the Church and the Crown, that some statutory alteration, such as was now proposed, was needed in the letter of that settlement, in order to adhere to its true spirit. It was not accurate to say, that it was intended at the Reformation to give unqualified power to the Crown to judge of doctrine: for, whatever expres- 646 sions were to be found in the statute of that period on the subject, should be construed in the sense of the preamble of the first and greatest of them, the Statute of Appeals; which declared that the supremacy of the Crown was to be exercised in matters temporal through the temporal power, in matters spiritual through the spiritual power, the spiritualty being one of the distinct estates of the realm. And according to this was the scope of the present Bill; of which the essential principle was, not that the appeal should be to a tribunal composed solely of bishops, but that it should be to a court composed of spiritual and ecclesiastical persons; and therefore that the constitution of the present Judicial Committee was a bad one. This was according both to the ancient law, and to the authoritative expositions of it, such as those of Lord Coke and Blackstone. With regard to the existing controversy, he would only say that he should look to a well-considered statement of doctrine on the part of such a tribunal as this Bill would constitute, as tending to consolidate and unite opposing parties in the Church, and not to widen or confirm their dissensions. The right rev. Prelates, and they alone, had even now the moral right and the moral influence that could make a decision on these subjects satisfactory to the great body of Churchmen; and he supported this Bill as only giving them by law what they already had morally, and according to the ancient law of the Church and constitution of England.
§ The EARL of CHICHESTERwould oppose this Bill not only as an unconstitutional, but as a most impolitic measure. It had been said by a noble Lord opposite, that those who opposed this measure did so from party considerations. For himself, he must say that he opposed it not as a supporter of Her Majesty's Government, though he rejoiced, indeed, that the Government had felt it their duty to oppose any measure of this sort; but he opposed it because he considered, with all the respect that was so eminently due to the right rev. Prelate who had brought it forward, that it was an unwise and a dangerous measure. He had given to this important subject the most attentive consideration, and he had done so as one sincerely attached to the constitution, but still more deeply interested in the welfare of the Church. He believed that our civil and ecclesiastical institutions, as they now existed, afforded a far better security for the truth, and for liberty of conscience, than 647 could reasonably be expected under the provisions of the Bill now under consideration. It had already been so ably shown that this measure was a direct violation of the supremacy of the Crown, that he did not think it necessary to argue that question further; it would be sufficient for him to observe that the Bill introduced a great change into the constitution of the country, and that he saw no sufficient reason to justify them in mating that change. His noble Friend who last addressed them had referred to the party feeling now existing in the Church as an argument in favour of this measure. Now, much as he deplored those divisions, it seemed to him that the very existence of them was the strongest possible reason against the measure. The measure would, in his opinion, supersede the appellate jurisdiction of the Judicial Committee of Privy Council, and would have the effect of giving to a portion only of the bishops the power of introducing into the Church new articles of faith. ["No, no!"] Yes, it might have that effect; for if the decision of the bishops was to be binding, their decisions would be as authoritative as the Articles now existing. If they were not to be binding upon future bishops, and upon the Church, such decisions would afford a constant motive to controversy and agitation. He wished to know in the case of a question of heresy being sent from the Court of Privy Council to the new court, what was to be the process; would they send before them the whole case, or only extracts from it? In the former case the bishops might say that there were parts of a man's teaching or opinion which were unsound; but that, taking the whole facts and circumstances into account, he ought to be acquitted. On this supposition, the new court would, in fact, be trying, not a special, but the general issue, and would entirely supersede the Judicial Committee. On the alternative supposition, the new court would be limited to the trial of certain words or extracts from the writings or teaching of the accused, and would have to find whether these were or were not consistent with the teaching of the Church. But this would be most unjust towards the accused, who might thus be convicted of heresy upon a partial and imperfect statement of the case. A man might very probably be convicted in this way by the very same bishops who, if they had heard the whole case, would have acquitted him. He was satisfied that the alteration now 648 proposed would be one of the greatest causes of disunion and discord that had ever happened to the Church. If he were rightly informed, and if he might judge from the language of some of the petitions that had been presented to their Lordships, he thought it was pretty clear that the party urging on this Bill were not likely to be satisfied with it, or with any other alteration in the administration of ecclesiastical law. He believed it was the professed object of that party—he knew it was the open and avowed object of the leaders of the party—by means of this Bill to oust from the Church a number of their brethren whose doctrines they disapproved. He knew it had been said that this Bill might have the effect of driving out of the Church the very party who were supporting it. Now he declared that entirely as he dissented from the views and opinions of that party—much as he deplored their great, and he must admit their growing influence in the Church, he had no wish to drive them out, still less would he consent to their being driven out by a process so unjust as that provided by this Bill. But if the measure was to act, as some hoped it would, against another section of the clergy, he should deprecate it still more strongly, because in that case it would deprive the Church of a body of clergymen whom in his conscience he believed to be amongst the purest in their lives, the most diligent in their duties, and the most faithful in preaching the great doctrines of the gospel. If such was indeed the object of this Bill, he trusted that their Lordships would refuse to sanction so mischievous a measure for so unrighteous a purpose.
LORD STANLEYwould not presume to enter at any length into the discussion of the Bill, which he thought had been exhausted by the able and masterly speeches which had been delivered by right rev. Prelates upon the subject; but he could not resist, in a few words, expressing his regret that the noble Marquess should have thought it necessary not only to object to the provisions of the Bill, but on the part of the Government to put his veto upon the introduction of any measure of any description or character purporting or intending to obviate what he himself admitted to be a great existing evil. [The Marquess of LANSDOWNE: At this moment.] The noble Marquess said, at this moment. That reminded him that the right rev. Prelate (the Bishop of St. David's) who opposed 649 the measure on what seemed to him (Lord Stanley) a very singular mode of argument, said, that up to that evening he had never heard it doubted by a single human being, that this measure was introduced with a special reference to, and in consequence, of the late decision of the Judicial Committee of the Privy Council. Why, the right rev. Prelate had for three years endeavoured to effect an improvement in the law, and it was therefore not in reference to any individual case that the Bill had been introduced. It was notorious that a great and practical evil existed. That great evil was this—that at this moment the Church of England was placed in a position more disadvantageous than any other religious body on the face of the globe. She had in herself no authoritative means of declaring through her recognised organs and teachers and heads, her doctrines when cases of heresy arose, or when doctrines were in dispute. Nothing was more certain than that at the time of the Reformation it was intended to confirm to the Church the fullest power of authoritatively declaring her own doctrines. There might be objections—he knew there were great and grave objections—to renew the convocation of the clergy; and yet nothing could be clearer than that, according to the declaration of the Crown in 1562, it was intended, that "out of our princely care to the Church, and that Churchmen may do the work that is proper unto them, the bishops and clergy from time to time, in convocation, upon their humble desire, shall have licence under the broad seal to deliberate and do all such things as, being-mentioned by them and assented to by us, shall concern the settled doctrines and discipline of the Church of England as now established." It was impossible that words could be more clear to show that it was intended that a spiritual body under the authority of the Crown should, from time to time, not introduce new innovations or fresh arguments, but should explain and expound the doctrine and teaching of the Church of England, and that such explanation should be intrusted, not to all, but to spiritual persons only. He would not enter into the question as to the propriety of summoning a convocation. He would rest contented with the admission of the noble Marquess, that the present is not a satisfactory tribunal, and that by changes of legislation the Judicial Committee of the Privy Council might have to decide on matters affecting the doctrine of the Church of England when the majority of them 650 might not be members of the Church. The noble Marquess and the noble Earl had taken a very high tone in speaking of the proposed new tribunal—one of them saying that it was unconstitutional, and the other that it was a violation of the constitution of the country. Now what was this unconstitutional tribunal? The noble Marquess the other day spoke with extreme reverence of the antiquity of the constitution of New South Wales, and of the danger of disturbing that antiquity, which was six or seven years old; and now it was said to be unconstitutional to disturb that tribunal of which the antiquity dated back no further than 1833. But it was said the proposed alteration would interfere with the supremacy of the Crown. Why, the supremacy of the Crown was exercised through the courts of the Crown, and the Crown was bound by the decision of its courts of appeal, regularly and legitimately constituted. And how were these tribunals constituted? Not by any Act of the prerogative, but by the will of Parliament. The Judicial Committee of Privy Council was as much the creation of Parliament as the tribunal now proposed by the right rev. Prelate, the object of which was only to aid and assist in the deliberations of the Judicial Committee. But even if it were intended to substitute the jurisdiction of the tribunal for the Judicial Committee, the change might be advantageous or disadvantageous, but neither in the one case nor the other would it affect the supremacy of the Crown. Now what were the cases intended to be tried by this tribunal? Were they most fit to be tried by laymen or ecclesiastics? The early Reformers thought they came properly under the cognisance of ecclesiastical and spiritual persons. But, said the noble Earl, if you give this power to this tribunal, you are giving the power of establishing new articles of religion. Then the noble Earl must contend that the Judicial Committee of Privy Council had the power of establishing such new articles of religion now, because the utmost that could be said was, that this was an attempt to place this new tribunal, composed of all the bishops and archbishops of the Church, in the same position that the Committee of Privy Council enjoyed now, with the same powers and no more. He should much regret, if either the one tribunal or the other had the power of establishing new articles of faith; but if he were to choose which of the two should have the power to bind the Church, of which he was a humble and unworthy member, he could 651 not hesitate to take the power from a body who might not he members of the Church, and confer it upon those members of the Church who were authoritatively set forth as the spiritual guides and instructors of the Church. With a knowledge of the dangers now threatening the Church, he deeply regretted that the noble Marquess had declined entering into a consideration of the remedy now suggested by the right rev. Prelate. He did not sympathise with those who, when they found the Church of England hampered and fettered by her connexion with the State, were prepared to separate from her communion. He could not conceal from himself the fact, that if their Lordships, by rejecting the second reading of this Bill, should determine to apply no remedy—should declare they would do nothing to remedy the grievance of which Churchmen loudly and justly complained—that they would run the risk of separating from the communion of the Church, so fettered and controlled by the State, a number of its ablest and most devoted members. He belonged to no party in the Church—he was not one of those who advocated extreme opinions—he was not one of those who desired to see points which had been wisely left by our ancestors with a certain latitude, brought forward and dogmatically laid down, and perhaps unnecessarily excluding, on one side or the other, members who might conscientiously hold opinions which are not emphatically condemned by the Church; but he did say this, that it was right that the Church should have the power through its authorised representatives, with the articles and teachings and writings of the fathers of the Church in their hands, to declare that such is now, that such ever has been from the commencement, the doctrine and the teaching of the Church; or, on the other hand, to declare that such and such a question is one upon which many sincere clergymen have entertained different opinions—upon which the Church allows a latitude, and has not declared itself in any formal and authorised manner. It had been said, that the present Bill would tend to multiply dissensions in the Church. Now, he entertained a very different opinion. He did not believe that there was the smallest possibility that upon any question simply arising, "Is this, or has this particular point been the undoubted doctrine and teaching of the Church?"—his respect for the Episcopal bench prevented him from believing that on such a question there could arise such a difference 652 of opinion as that there should be 14 members on one side, and 13 on the other. There might be a difference in this as in many other cases; and he knew of no other way of providing for it except by the authority of the Judges who were called upon to decide. But while he had no apprehension about the supremacy of the Crown, and about the unconstitutional nature of the alteration proposed—nay more, while he had no fear of the exercise of the power which the Bill proposed to vest in the Bishops of the Church of England, yet, in voting for the second reading, he must say that he should see with satisfaction some alteration made in Committee which would not withdraw from the Judicial Committee of the Council the power of passing a sentence, if, in point of fact, that appeared to be an important reservation. He would not constitute the bishops a court for the purpose of passing their sentence; but he thought the Bill would be a great improvement upon the present state of things, and that it was worthy of consideration whether the bishops of the Church of England might not, with regard to all matters of doctrine and teaching, be placed precisely upon the same footing upon which, with regard to matters of law, the Judges of the land are placed when they are called upon to advise their Lordships as the highest tribunal on any matter of doubt. As he would intrust to the Judges the interpretation of the civil law, so he would intrust the bishops of the Church of England with the interpretation of the Articles of the Church of England, and would receive with implicit confidence the judgment and authority of the bishops. It would not be absolutely necessary for the Judicial Committee to follow the advice so tendered. Certainly when the opinions of the Judges were so tendered, their Lordships were guided by them, although there had been some memorable exceptions. There was one in particular in which their Lordships were not guided by the opinions of the majority of the Judges; but in other cases their Lordships were always in the habit of being guided by the opinions of the Judges. [The Marquess of LANSDOWNE: Not always.] As a general rule, their Lordships were in the habit of being guided by the opinions of the Judges, to whom they constitutionally referred; and he was convinced that in 99 cases out of 100, the Judicial Committee would be directed by the opinion of the bishops upon questions of doctrine in precisely the same manner. He certainly 653 should object to refer to the discretion of any party—to the discretion of the Judicial Committee of the Privy Council, or the Minister of the day, that selection of the archbishop or bishops—for the guidance and direction of the whole Church. Of this he was quite sure, that it would be a matter of satisfaction to the great body of Churchmen in this country if they knew that upon any question raised they had an opportunity of obtaining—not the direction of the Judges—not the direction of the Legislature, but for their own guidance as dutiful members and sons of the Church the authoritative declaration of the united heads of the Church in matters affecting doctrine. It was because he saw an evil with which it was necessary to grapple without loss of time that he could not follow the example of one right rev. Prelate, who, because he was desirous of condemning the Bill, declared he would record his vote against the second reading. Here was a Bill brought forward on the authority of a right rev. Prelate, for whom no man entertained a higher respect than he did. He believed the Bill had received the assent of a majority of the Members on the Episcopal Bench, and he knew it was supported by a large body of clergymen of various shades of opinion, and by many of the laity; and seeing no other remedy for the great and grievous evil which existed, he could not consent to vote against the second reading of the Bill, which he would rather accept in its present shape than have no measure at all; but which, when modified in Committee, would answer the reasonable expectations of all who desired a change of the present system.
LORD BROUGHAMexplained that he should be as decidedly opposed as his noble Friend to any proposition for giving the Minister of the day a power to select particular bishops to advise the Committee of Privy Council.
The EARL of HABROWBY* I have to apologise to the House for intruding on their attention at this late hour and on such a subject; but the pain which I feel at finding myself in the unusual position of being compelled to differ from so many of the right rev. Prelates of our Church, and more especially with our respected diocesan, the promoter of the Bill before us, makes me unwilling to pass to a division without explaining the grounds of my opposition. If, indeed, I could feel with my 654 noble Friend behind me (Lord Stanley), that we might safely affirm the principles of the Bill, and attempt to alter any objectionable provisions in the Committee, although the widely different views entertained by him and by the noble and learned Lord (Lord Brougham) of the amendments required, give little encouragement to expect that we should be able to come to a satisfactory settlement in the Committee, I would most willingly consent to such a course; but seeing in this Bill, as I think I do, a principle as new to our legislation as, in my opinion, it would be dangerous in its consequences, I feel myself compelled to oppose it in the present stage. For what is the principle of the Bill? I can see in it no other principle than this, that in the interpretation of the standards, what I may call the statutes, of our Church, we shall consent to be determined solely by the clerical portion of the Church, and out of them by one Order of the Church, the bishops; in the interpretation, my Lords, not the formation of her standards, though even in the formation of these standards other Orders than the Episcopal always took a considerable share, and the laity were called in to give their sanction, before they became the law of our Church.
Now, if it be true, as the venerable Prelate (the Bishop of London) seemed in his closing observations to intimate, rather than to assert that the Episcopal bench have a divine title to assume this authority—that this power of interpretation of doctrines once settled by a Church has been devolved upon the bishops by divine commission, why then, indeed, we have no right to discuss the question; it is one which has been settled by higher authority than any which your Lordships can pretend to—cadit quœstio—all discussion is precluded. But as that rev. Prelate only introduced these observations at the close of his speech, and laid little stress upon the point, and adduced no arguments to establish it, I am inclined to think that they were loss the expression of his own distinct opinion than an act of deference to the opinions of others; and I conclude that the question is really still open to discussion, and that there is, in fact, no divine title set up to exclude it. For myself, I believe the principle to be perfectly new, at least since the Reformation, and I am satisfied to go no further back. I will not stop to debate the question as to times before that date, or to the practice of other 655 churches. But since the Reformation, the only courts, by which all questions of doctrine in this country have been decided, are the Court of Delegates (until, indeed, the present Judicial Committee of the Privy Council took its place) and the High Commission Court, until it was abolished, as your Lordships all know, in the reign of Charles I.
In neither of these courts was the authority in purely spiritual hands. I have heard it said, indeed, that for seventy years after its first institution, the Court of Delegates was purely spiritual in its composition; that "none but bishops sat in it;" but happily I have been enabled to trace the source of the assertion, and to ascertain its incorrectness. I find it in Dr. Pusey's late volume on the Royal Supremacy (p. 202), resting upon no authority, apparently, but a passage of Gibson, which does not justify it, for Dr. Pusey adds, "A partial, gradual, and as yet unexplained declension took place under the first Stuarts, in which, however, until 1639, 'the name of any civil judge is found only in one commission out of forty.'" "'From thence, i. e. from the downfall of bishops and their jurisdiction, which ensued, we may date the present rule of mixtures in that court;' "and he quotes at the bottom of the page as his authority for the words he has given in inverted commas, "Gibson, Codex, Introd., p. xxi." But, oh! the faith of controversialists! My Lords, I look to the passage referred to, and I find, "There are no footsteps of any nobility or common law judges in commission until the year 1604, i. e. for seventy years after the erecting of the court, nor from 1604 are they found in above one commission in forty till the year 1639," &c.
Now, why did not the learned controversialist quote the very words? Why did he substitute for them expressions, which might produce an impression, as they have done, different from that of the original, from which he quoted, and why did he build upon them the assertion of the fact, that for the first seventy years after the foundation of the court, spiritual persons only had sat in it as judges? Whereas, canonists, civilians, civil judges, did sit in that court and decide in cases of doctrine during that time. It may be said, to be sure, that these civil judges were canonists, not judges at common law; but his assertion is, that none but bishops sat, which is not the fact; and that they were canonists does not touch the question!
656 They were not the less for that, mere civilians, mere laymen. Canonists have no spiritual character; they may be chosen to decide in such cases from their greater supposed familiarity with questions of the kind than other men, as a matter of expediency; but there is no principle involved in the preference for them over other judges. Their decision is but the decision of laymen after all; and the place which they occupied originally in the Court of Delegates gives no ground, but the contrary, for the claim of spiritual persons, still less of bishops, exclusively to decide in questions of heresy. The pretension was indeed made by the Romanists in the reign of Queen Elizabeth; but Bishop Jewell will teach us in what light it was held by our Reformers. A friend, more conversant in these matters than myself, has kindly furnished me with the following passage on the subject, which, with the permission of your Lordships, I will read, as possibly not a little applicable to the present times. It is from Bishop Jewell's Defence of his celebrated Apology for the English Church:—
A king, ye say, may not take upon him to judge or pronounce in matters of religion, be they never so clear, but only must hearken and be ready to execute whatever shall be thought good and commanded by your bishops, as if he were only your bishop's man.Such, apparently, is the position which it is desired by some that the supreme power of the State shall now occupy; but such has not been the pretension, at any time, that I am aware of, of the English Church. Since the revival of the Court of Delegates on the Restoration, no question is raised but that it has been uniformly a mixed court of lay and spiritual persons, and no discussion is needed upon that point. But, my Lords, how was it with regard to another court, which in the early times after the Reformation, during these favourite seventy years, as well as later, took a still more active part in the decision of heresies than the Court of Delegates—I mean the High Commission Court, of notorious memory; a court specifically empowered to search out and decide upon all heretical opinions, all repugnances "to the articles of religion, or to the confession of the true Christian faith, or to the doctrines of the sacraments, as laid down in the articles?" Was this court, the instrument of Laud himself, exclusively composed of bishops, of ecclesiastics, or even of canonists? No, my Lords, one half of the commissioners 657 were simple laymen, Secretaries of State, Privy Councillors, and common law judges, knights, and esquires; and neither bishops nor ecclesiastics, nor even canonists, had any exclusive possession of these courts of heresy.I think then, my Lords, I have sufficiently established that the pretension is entirely new. The only question remains, and it is perfectly opened to us, unfettered by authority or precedent, to discuss it, whether it would be expedient to establish for the first time—whether, as it appears to me at least, it would not be most highly mischievous—that the bench of bishops, or any exclusively spiritual body, should decide exclusively and definitively upon the interpretation of the standards of our Church, our Articles, and our Book of Common Prayer. I say, my Lords, on the interpretation of our standards, not on their formation; and we must always recollect that this is the question before us. It is no question of the formation of a creed. That has been done for us longago. These standards of the doctrine of the English Church were constructed, after due deliberation by all orders of the Church combined, and ultimately received the sanction of the State, as an important portion of the Church, Our business now is simply to interpret, not to construct. Let us take care that, under the guise of interpretation, the work of construction or legislation is not undertaken by inferior authority to that which originally established. It is true, my Lords, as observed by my noble Friend (Lord Stanley), that it is difficult to secure practically the separation of these two functions; it is true that he who interprets is apt in fact to legislate; and in the mind of my noble Friend, if such be the case, it is better that the chance of such indirect legislation should be left with bishops than with judges. The view is natural and plausible: but I cannot come to my noble Friend's conclusion, and I will tell your Lordships why. You cannot altogether escape from some risk upon the subject. Butin my mind the risk is infinitely less in the hands of judges than of bishops, and of less serious consequence. The question is, who are the parties most likely to confine themselves to the simple duty of interpretation—men who have been trained all their lives to the duty of separating their own opinions from those of the laws which they interpret, or men who have had no such training? who, on the contrary, have probably identified themselves, or are 658 identified in public opinion, with decided, what may be called professional, opinions upon the subjects at issue? who, in fact, are hardly at liberty in such matters to be mere judges, without the imputation of indifference, on the points which they may themselves consider, and which, at any rate, some portion of the Church in times of controversy will be sure to consider, as important, if not essential, points of faith and doctrine? What has been just passing on a late occasion is pretty good evidence how little liberty would be given to bishops in such cases.
Under such circumstances bishops cannot be mere judges, mere interpreters. The more zealous, the more earnest in up holding what they believe to be the truth, the less are they fitted for such a function; and their opinions would become practically the law of the Church. Under such a system our Church might have been nailed to Calvinism under Whitgift, to semi-popery under Laud, and to I know not what under the latitudinarian tendencies of the early part of the last century. To such a condition I, at least, am not prepared to bring my Church, as long as I can help it.
But it is said, my Lords, that the Judges are not trained to such discussions, that the subjects are new to them, the language strange, and that they are therefore incapable of coming to sound conclusions, and unfitted to decide, in matters of theology. Trust me, my Lords, the heresy which cannot be made patent to five or six able, sagacious, honest men, aided by all the lights which can be thrown upon the subject, by all the knowledge and arguments which can be brought to boar upon it, by the most expert theologians, the most able canonists, is a heresy, if it be one, which you had better leave alone. It may be well fitted for controversialists to discuss; a tribunal to define it may be the basis of a sect: but trust me, no national church, in a free country, can rest upon such a process. It may succeed in a church or in a country where there is no free discussion: in such cases you may crush the human mind into real or apparent acquiescence in a minute and narrow uniformity upon every point; but in a Church like ours, which courts free discussion, and whose Articles happily leave, and were intended to leave, no inconsiderable latitude to private judgment on obscure and controverted points, and in a country like ours, where men are accustomed to the free exercise of thought 659 upon every subject, to expect to be able to rest upon distinctions of doctrine which, by the hypothesis, none but the microscopic eyes of practised professional theologians, of doctors of the Sorbonne, should be able to appreciate themselves, or make plain to such men as constitute the existing tribunal, is most wild and dangerous. Our Church could not rest upon it for a day.
I have said, my Lords, that in my mind, the risk of false decision, in the hands of judges, would be of less serious consequence than in the hands of bishops. A mistaken decision of the present tribunal may be a calamity, if you please, but as it cannot pretend to be a decision of the Church itself, it has little right to distress the conscience of any man. Even a series of such decisions, though it might have grave inconveniences practically, could not pretend to affect the conscience. Every Churchman would point to the Articles, the Liturgy, and the creeds, and say, "These are the standards of my Church, and the misinterpretations of a court cannot affect them. But let there be a decision or course of decisions, of a synod of bishops which should be offensive to the feelings or opinions of a party in the Church, and how much more heavily would such decisions press upon the conscience of individuals differing from the majority of the bishops! How painful and difficult would it be for them to continue in a church if holding doctrines so denounced by a body so constituted and so authorised; and would not the inevitable consequences, in days like these, be the early secession of some considerable party, and the narrowing of the Church's basis to an extent inconsistent with the intentions of her founders, and incompatible with her continued existence as the national Church of England? And do not think, my Lords, that this is any ideal danger—that such a weapon of theological warfare would be allowed to sleep. I have full confidence in the prudence of the Episcopal body, that they themselves would not lightly call it into action; but I have no security and no confidence that it would not be called into action by some one member, and the whole body would be compelled to act, whatever their opinion of the fitness or danger of the occasion might be. Other inconveniences have been already pointed out in the proposed reference of points of doctrine to a synod of bishops assembled upon the occasion—inconveniences which I cannot but think 660 have been treated too lightly. Would it indeed be a light matter, that after solemn discussion on the point of heresy, the minority of bishops, be they many or few, should be branded with heresy, as identified with certain opinions, which they refused to condemn, and that, so branded, they should remain upon the bench, while the peccant presbyter was ousted from his living, and expelled from the Church's pale?
Is there then, my Lords, any consideration which should make you overlook the inconveniences of introducing so new, so dangerous a principle into your Church legislation? Is there any urgency for introducing at once even those changes which the noble Marquess has suggested, and in which your Lordships would probably all acquiesce? I do not say that the existing tribunal might not be amended. The noble Marquess, although he is unwilling to introduce a change at the present moment, acquiesces in the propriety of providing that all the members of that tribunal shall be members of the Established Church; and that the prelates who are members of the Privy Council shall always be called in on such occasions to act as members of the Court. I agree with his suggestions. Not that I have any doubt myself that men who fill the high station of judges in such a court, even if they were not members of the Church, would discharge their duty honestly, and faithfully, and successfully in such a case of interpretation. The Judges who decided, in Lady Hewley's case, on the claims of Dissenters as to the right of preaching in a hundred chapels, were not Dissenters themselves, but were members of the Church of England, and had imposed upon them the duty of comparing catechisms and forms of doctrine with which they had no sympathy; and they have exercised similar functions in fifty other cases, in which religious tenets other than their own have been concerned; and we have never heard them accused of ignorance or partiality. But at the same time, as there is no practical difficulty in the way, it is a fair concession to any apprehension of bias that may exist, and would give additional sanction and authority to their decisions. Nor, as they are reasonable in themselves, do I know that I should have objected to the immediate introduction of such provisions. But, at the same time, I cannot but be sensible to the force of the objections which the noble Mar- 661 quess stated to that course. I cannot but feel that, introduced at such a moment, it would be difficult that such a modification of a tribunal, immediately consequent on the delivering of an important judgment, should not wear the character of a reflection upon the tribunal itself, and of an expression of dissatisfaction with that judgment; that it should not, in fact, appear to be a protest against it; and nothing could be more disastrous than such an impression. I, at least, should be most unwilling to take any step which should have the slightest tendency in that direction, or throw doubt upon a judgment which, in my mind, in substance (I will not enter into every particularity of language in which it was conveyed) was not only most consonant with the justice of the case, but most important for the Church's welfare.
But, if we come to the further question, whether it is expedient, in spite of the novelty and danger of the principle, to admit it for the sake of retaining certain parties in the Church, who are supposed to be prepared to quit it, if this principle be not admitted, I would implore your Lordships not to be swayed by this inducement. I know, and am grieved to know, that many men, who have no leaning to another Church—men of undoubted attachment to our Protestant faith—have taken up the notion, which has been perseveringly urged upon them by fallacious arguments and imperfect facts, that it is new and unfitting and un-church-like, that questions of interpretation of doctrine should be decided by others than ecclesiastics; though oven they may well doubt whether such interpretation should be left to one Order in the Church, subject to varying influences, as that Order must naturally be. But such men will not leave the Church, however your Lordships may decide; the ties which attach them to her pure and apostolical forms of doctrine and discipline are not so slight as to be snapped asunder by your refusal to admit a new principle of administration into her government. They have had, in recent changes in the constitution of the State, and in some circumstances which I will not now enter into, no doubt they have had, reasons for feeling, that on some points the connexion which has hitherto existed between the State and the Church, needs revision. They have had reasons for feeling, that in some points they are not dealt with so kindly or considerately as they were wont to be; and this feeling ought not to be neglected; nor, 662 on proper occasions, my Lords, I am confident, would you neglect it. But such men ought not to leave the Church, and would not, whatever your decision on this occasion may be.
They do not, if I may use the expression, so ride at single anchor in our ports. If, on the other hand, there be men so slightly attached to our Church, so ill-grounded in her principles, so little valuing her privileges, so regardless of consequences of every kind, social and religious, that the adverse decision of a court of law, or the refusal to establish for the first time a new court of doctrine in our Church of a purely spiritual composition, shall induce them to quit her hallowed precincts, be assured, my Lords, that no concession you can make will long retain them; be assured, that though their scruples or their associations may still retain them for a while, their affections are already placed elsewhere. Men, who have always talked of schism, and denounced schism, as the worst, the most fatal, of all crimes, cannot, for so slight a cause, be prepared to encounter so deep a sin. They have always denounced schism even in those who felt themselves called upon to incur the risk of it, when compelled to do something or assert something contrary to their own conscientious convictions. But this would be a schism, because something could not be enforced upon others; because more latitude of interpretation had been given or might be given to a Church's standards than certain men approved, or because their Church's courts were not constituted as they thought right. Was ever in the history of the Church a schism rested on such a ground? What Church could hold together if men were to quit it for such a cause? In vain may the Articles of my Church be sound, her services devotional and scriptural, and nothing required of my own conscience within her pale which I object to; if I cannot reconstruct to my mind, and on a new principle, the Court of Appeal, which is to decide on other men's heresy, I leave her. Is this the language of a devoted Churchman? Can such men be long retained by such concessions?
No, my Lords, if in your judgment there is no reason in itself for admitting the principle of the Bill before you; if you are satisfied that it is new—if you are satisfied that it would be dangerous, do not let your own judgment be overborne by the apprehension of a schism if you act upon your own conclusions. If any seces- 663 sion shall be the consequence, rest assured that it will be of such as no concession could long retain. Consider—consider at proper time, not as the expression of dissatisfaction at a judgment which your Lordships would be most unwilling to revense, but on its own merits, any suggested improvement of a tribunal, which certainly was not specially constituted for its present purpose, and which may well admit of amendment to satisfy scruples and apprehensions. But do not, my Lords—do not, for the first time, admit the principle of leaving the interpretation of your faith in our highest courts to a purely spiritual body. In my conscience I believe our Church could not long survive the process. Her creed and her congregations would become narrower day by day. I must, therefore, resist the second reading of this Bill.
The BISHOP of OXFORDsaid, he had never risen with so much reluctance in that House as on that occasion—a reluctance which was founded not on any doubt as to the vote he was about to give or the side he ought to advocate, nor even the feeling that in the part he took he would be subjected to the imputation (which he confessed he thought amounted to an unbecoming freedom) of party motives or party feeling, or that he was desirous of promoting the separation of Church and State. He was prepared, in a cause that he believed to be the truth, to bear any amount of obloquy. In order to discuss this question fairly and without prejudice, he wished to bring them back to first principles. What, he asked, was the object and the purpose of the Church about which they were to legislate? Was it for the gratification of the feelings of individuals? The noble Marquess had said, that he was the friend of the Church, and spoke of it as if he was not indisposed to give it a little aid. The noble Lord was a member of the Church on one side of the river, and not a member of the Church on the other side. But the noble Marquess had said, he was a great friend of the Church. Now, he would ask that friend of the Church if the Church was founded that men might belong to it or not, as they wished—as if it were a club formed for their convenience, whenever they wished to repair to it. The Church was founded to maintain a certain deposit of truth. For that object it must have the means of declaring what was the truth, whenever the truth was impugned. Then with whom was that power lodged, 664 and by whom was it to be administered? He asked any noble Lord, the most determined opponent of the Bill, who had come down to the House pledged to vote against the Bill without having heard a single argument for or against it—who were the judges of what was the original deposit of truth? Must it be men outside the Church, or men in it? The noble Earl who spoke last said that, so far from ecclesiastics being the best, they were the worst judges, because they knew too much. If this argument were good for anything, why not appoint Jews to be the judges, for they knew nothing whatever about Christianity, although they might have a good knowledge of the English language? The same fallacy ran through the arguments of the noble Marquess. There was a truth revealed that was not to be added to nor diminished till the end of time. In ancient times the laity and the clergy were employed to draw out the creeds and Articles of the Church, and were empowered, should they be impugned, to declare not the new truth, but the old truth. A great philosopher had said that time was the great innovator. The authority was established to prevent the corruption of the great innovator, and that authority must say, "This is new, and therefore, it must be wrong." When the Church had assembled at Nicæa, it met merely to decide the meaning of the single word "Son." The question on which the faith of the Church hinged in the third century was settled by the decision of the officebearers of the Church—men who were trained to the consideration of such subjects, and who bore the commission which the bishops of the present day bore. At the Council of Nicæa, Athanasius vindicated his claim to greatness, not by inventing a new doctrine, but by preventing Arius from doing so. Now he would ask the noble Marquess (the Marquess of Lansdowne) whether he would be content to leave the issue of such a question as that which had been settled at Nicæa to the decision of the Judicial Committee of the Privy Council? The duty of the Church was to declare and define, not to enlarge and develop what had been handed down for the guidance of the faithful. It was for the officebearers of the Church to determine what had been handed down, and it was the duty of the laity to adopt and ratify as truth that which the Church offered for their acceptance as such. The officebearers of the Church have been appointed 665 trustees of the deposit of the truth, and it was not competent for them to shrink from their duty or to cast it aside. For whom were they trustees? Not for themselves, but for others. He did not mean to propound any doctrine so absurd and irrational as that the clergy and dignitaries of the Church constituted the Church itself. He knew that the laity were the heart, marrow, and body of the Church, and that the clergy were only their ministers for Christ's sake; but he knew that they were also the trustees for the deposit of the truth; and he, for one, could never consent to their foregoing the duties incidental to their character. It would not do for a trustee, even in worldly matters, to disown the duties committed to him; and the ministers of the Church of Christ were held by a still heavier responsibility to the exemplary discharge of their more exalted functions. If ever there was a time when the principle of excluding Churchmen from the decision of questions in which the interests of the Church were vitally concerned was fraught with danger, the present was such a time. It could not with any truth be asserted that a pertinacious attachment to dogmas was a peculiar characteristic of the present day. An impatience of all control—an impatience of all fixed external truths, of what description soever, was, he grieved to say, amongst the most peculiar features of our age. If they were now to do away with the Church's office of deciding questions of doctrine, and settling what was the ancient rubric, it would be impossible to exaggerate the disastrous consequences of such a proceeding. If they would deal with a living body as if it had no life in it—if they would deal with the truth as if it were a plastic form of lifeless clay, which they could fashion according to their caprice, and on which they could stamp any impress they pleased, he warned them that they would commit as fatal an error as human folly had ever fallen into. They would find that, in dealing with the Church of Christ, they were dealing with a living model whose lineaments were eternal and unchangeable. He implored of their Lordships to give this Bill a second reading, and to afford an opportunity of trying whether it might not be possible so to arrange its details in Committee as to make it operative of good. He disclaimed the idea of being actuated by extreme party motives; nor did he give any credit to those who represented that this measure was supported only by those who held extreme 666 party views. He did not himself belong to any extreme party; but he would support the Bill because he believed that its principle was sound and righteous, and that its operation would be beneficial for the Church and for the country. One hundred and forty clergymen in one archdeaconry of his own diocese had petitioned in favour of the Bill; and petitions in its favour had also been presented by the Lord Lieutenant of their county, and from 100 to 200 of the most important of the gentry. Long before the recent decision of the Privy Council, the question was one which had excited the deepest interest, and for three or four years it had been the subject of continual discussion amongst the clergy. It was idle to pretend that the Queen's supremacy was injuriously affected b\' the Bill. No man valued the Queen's supremacy more than he; but he did not believe that it was a correct or constitutional interpretation of that supremacy to say that the occupant of the Throne should settle, in his or her own individual capacity, articles of faith, or any other questions whatsoever. He was sure that the exalted Personage who at present occupied the Throne would be Herself the first to repudiate so unconstitutional a doctrine. The supremacy of the Crown meant nothing more or less than this, that the Crown had the ultimate appeal on all questions ecclesiastical and civil—deciding such questions not as of Herself, but through Her proper constitutional agents. How could it be said to interfere with the supremacy of the Crown to give additional means of information to the Judges appointed under the Crown? How could it be said to encroach on the Royal prerogatives to enact that for the future the law Lords, when called upon to decide in matters of faith and spirituality, should do so with the assistance and cooperation of the dignitaries of the Church? He entreated of their Lordships to reflect on the consequences of refusing to give a second reading to this Bill. By such a refusal they would alienate hearts, without the affections of which the Church of England would be weak and emasculated. They should be warned by what had taken place in Scotland, and take heed how they sowed the seed of a spiritual schism in England. There was persons whom their vote to-night, if it were adverse to the Bill, would dissever from the body of the Church. Let them beware how they did anything that would lead to the establishment of a free episcopal church in this country. Lov- 667 ing the Church of England as he did, and believing her to be God's chiefest blessing amongst blessings unnumbered to this happy land—believing, too, that that Church was the bulwark of the Throne, and the surest safeguard of the liberties of the people, he could not bear to see any measure rudely rejected which tended to her welfare. He solemnly adjured their Lordships by the blessings which they themselves had received from the Church—the undivided Church of this land—that they would break not her noble heart. Let them not say, after having given to every sect greater freedom of action, and more power to settle their own affairs, to the Church of their fathers, that nothing shall be done for her except increasing her burdens, and adding greater weight to her yoke. Let them not say to her what they dare not say to the sister establishment, that she shall not have the power to maintain her own purity of doctrine. If they would accord to the Church of England what they accorded to the Kirk of Scotland, she would be abundantly satisfied; but she did not ask so much. All she asked was to have confirmed to her a power she had long possessed. It had been said that their Lordships by the Bill were asked to upset the customs of centuries; but the noble Lord (Lord Stanley) had shivered to atoms the sophism, and shown that this mighty work had been introduced only two years ago; and the noble Lord who originally proposed it had said that it never was intended to meet cases of the kind. It was an institution of mushroom growth, and yet to hear the speech of the noble Marquess it might have been supposed that Magna Charta was about to be crushed. He trusted their Lordships would not be led away by such representations. The consciences of men, stirred to their lowest depths, hung on the decision of that night. Singular wisdom had been displayed at the time of the Reformation. At that time, the Church, passing from the usurpation of Popery, it might have been expected, not unnaturally, that too great power might have been given to the Crown over things spiritual; but even at that time it was found that, although such periods were like a river overflowing its natural channels, and unable afterwards to regain them, so deep were the channels of ancient church-rule that they were not disturbed, and the power was left undisturbed in her hands, until, to her great dismay, she found it slipped from her grasp 668 and transferred to the Judicial Council. He entreated them not to be led by party feeling or by empty fears to do an unjust action; for, in the speech of every one who opposed the Motion, the fear had peeped out that the establishment of this court would weaken a certain judgment. If it were such an admirable judgment, surely there was no reason for such a fear. Unless there was some secret lurking belief that the judgment might be upset, if we had a good court, there would not have been this uneasiness. He besought them not to be actuated by such a manifestly unjust principle as to refuse a right lest something which was thought inexpedient should come to pass. He entreated them to follow the more generous course of going into Committee on the Bill, and seeing, if it had faults, whether they could be amended. [Turning to the Ministerial benches, the right rev. Prelate said]—Do not alienate from you as a party, finally and for ever, the whole body of the English Church! [Loud cries of "Oh, oh!" and expressions of dissatisfaction from the Ministerial side.] Yes, I dare to admonish you, and I do so again. Do not alienate from you as a party the whole body of the English Church, by showing them that at your hands they must not look even for justice. Deal more liberally and justly with her; listen to her complaints; do not rudely repulse her when she comes to you for redress, and, seeing her value, her purity of doctrine, and teaching more than earthly possessions, hasten to remedy her wrongs.
§ The MARQUESS of LANSDOWNE, in explanation, said, he had never stated or implied that, in the selection of bishops, if the Bill passed, the Ministers of the Crown would be guided by reference to the individual's peculiar views. What he did say was, that the Bill would incur the danger, by its being notorious that disputed points of doctrine were from time to time to be determined, of public opinion being diverted from the general moral and spiritual qualifications of the party, to the particular opinions he might be supposed to entertain upon one narrow disputed point. He was not aware that he had spoken with more earnestness than usual; but if he had, it was caused by a conviction that the inevitable effect of a series of conflicting decisions on the part of a bench of bishops divided in opinion would be great danger to the Church, which he was as desirous of seeing maintained as the right rev. Prelate himself.
§ The EARL of CARLISLEwas surprised to hear the right rev. Prelate state that his noble Friend the President of the Council had manifested something like fierceness in his opposition to that measure; this was not an attribute of his noble Friend on this or any other question. The Lords Spiritual were a component part of their Lordships' House, and had seats in it which they had derived from a very remote period in the history of the constitution, and they had ever commanded that respect with which they were so warmly regarded in the present day. In objecting, then, to the unprecedented functions which it was proposed to confer upon them by this Bill, he could assure them that it did not arise from any disrespect to them. A noble Lord (Lord Redesdale) had censured the bench of bishops for not having taken an active part in the differences which had arisen in the Church, and for not having taken upon themselves absolutely to decide upon certain points of doctrine; but he (the Earl of Carlisle) was satisfied they deserved the highest merit for the course they had adopted in abstaining from that interference. The noble Lord also stated that the Government, in their mode of dealing with this matter, had done all in their power to make it a party question; but he denied that there was any foundation for such an assertion. The noble Lord also said that he was a man of moderate views; but it required the absolute assurance of the noble Lord to satisfy the House as to that fact. He also stated that Mr. Gorham might be made a bishop, and that this probably would be the case if the Prime Minister entertained certain opinions with regard to baptism. He (the Earl of Carlisle) should have thought that the noble Lord would have objected to the decision of a bench of bishops appointed by such a Minister of the Crown from being regarded as final and conclusive. In not being able to concur in the views of the right rev. Prelates on this matter, he might state that, although they thought it advisable at that period to throw down the subject for public and Parliamentary discussion, it was not impossible that at some future time some modifications might be made which could be adopted. In common with his noble Friend the President of the Council, he would not object, at the proper time, to some Members of the bench of Bishops who were Privy Councillors being members of the court of appeal. On the present occasion he was not 670 prepared to give a second reading to this Bill, or to go into Committee to adopt a variety of propositions which were at variance with each other, and others which were departures from the principle involved in the proposal of the right rev. Prelate. The proposal really was to make an ecclesiastical tribunal whose decision must he final. This was a bold measure, brought forward, as was supposed, to secure the authority of the Church. What would be the effect if a majority of the bench of bishops recommended a certain decision to the Judicial Committee of the Privy Council, which the latter body, from a conscientious feeling, felt bound not to give its assent to? Would not such a result have a most injurious effect on the union and peace of the Church? The question they had to deal with was, whether the proposal of the right rev. Prelate was an improvement on the present appellate court of the Privy Council, and whether it was expedient to adopt such change at the present time without too curious a reference either to precedent, or the 24th Henry VIII. The proposition of the right rev. Prelate was for constituting a tribunal, the decision of which involved a binding and final determination; but at present the decision of the Judicial Committee of the Privy Council, on such questions as would be affected by this Bill, was not final and conclusive, as any subject might be referred back to it again and again, and no step could be taken until the whole matter had been referred to the Queen, and only by the opinion of Her responsible advisers could a decision be sanctioned by Her. He confessed the question touching the Queen's supremacy was not one which he so much cared to dwell upon; but the question was, how it would affect them as Christians and as members of the Church, and how it would affect the supremacy of God's word. It was asked whether questions of mere abstract doctrines might not safely be left to the bench of bishops to decide; but if noble Lords would look to the practical bearing of most of these cases, they would see that they affected the interests, the property, and the livelihood of large numbers of individuals. The right rev. Prelates must excuse him for saying that he believed such questions would be more satisfactorily and impartially considered, and more dispassionately judged, by men who were accustomed to weigh the value of terms, and to decide in accordance with prescription and past 671 practice, infinitely better than the best House of Convocation that could be called together. He might not go far enough to satisfy the right rev. Prelate who spoke last; but he could not help feeling that at all times the best men differed as to the means of ensuring the soul's health, and in this country men were entitled to hold their own opinions on this all-important subject. He objected also to the period at which this measure was brought forward, and when it was proposed to apply it. He should shrink, with those who delivered the judgment in the Privy Council, from the expression of any opinion in the doctrine involved in the case of Gorham, if, indeed, he was a hundred times more competent than he was to give an opinion on a subject which was of too high and mysterious a nature to be dealt with in that dogmatic tone which had been too frequently used on both sides of this question. Hitherto, both in and out of the Church, some of the most excellent men on earth had adopted widely different views of the doctrine in question; they therefore might draw some satisfaction from the judgment of the Committee of the Privy Council. He should have regretted to find that it had been decided in such a way that the holders of either set of opinions would have been virtually declared unworthy of, or incapacitated from, holding preferment in the Church. Such, indeed, must have been the effect of the Committee of the Privy Council giving any opinion on the doctrine; and he should most deeply regret that anything should occur in the House that night which would apparently imply the censure of their Lordships on the Judges who gave the decision in the Privy Council, and on the most rev. Prelates who approved of that judgment. The right rev. Prelate, in the most feeling and able manner, alluded to the present condition of the Church. He alluded to the possibility of some of the greatest ornaments of it withdrawing from its communion. The right rev. Prelate evinced some dissatisfaction at this; but he (the Earl of Carlisle) hoped that he might be permitted to say that, bitterly as he should regret the loss of such men as the pride and ornament of the Church, he could not help feeling that if they were shaken oft" from it by any decision the House might come to that night, these gems of the Church must sit very loosely upon her garment. If the Church was disposed to remain to- 672 wards the State and public at large on the footing which it now held; if no symptoms of aggression were manifested on its part; and if no attempts were made to grasp at new powers—it would be placed in a situation of greatly increased usefulness; for not only every year, but almost every week, the land was being covered with new churches and chapels and schools, in which religious instruction was given, but also the great portion of the popular education of the country was under the control of the Church. In the words of the promise which it was her office to promulgate, "in quietness and confidence should be her assurance for ever." But if, on the other hand, she showed any intention to encroach upon the powers or privileges of other bodies of the State—if she assumed preferences not clearly her own—if she sought to acquire pecuniary resources from the national funds, and power not now belonging to her—then, in proportion to the peace which her political quiescence would obtain for her, would be the weakness and the impotence that would come upon her. He had no wish to give a harsh or overstrained judgment against the Bill of the right rev. Prelate. He believed it to be a well-meant though mistaken effort to restore peace, and to compromise conflicting opinions. But he thought it had no chance of success. Even if it were adopted that night by their Lordships, he did not think it had any chance of ultimate success. His right rev. Friend near him had made use of the extraordinary observation that the Government were resisting the demands of the Church. He held in his hand an answer to that observation. It was a protest against the measure by a large body of the clergy of the right rev. Prelate's own diocese. And he believed that a vast body of the clergy throughout the country would have sent forward similar protests, but that they felt assured the measure would not be suffered to pass. By far the most preferable course for their Lordships to pursue would be to prevent the measure from being further discussed—not to adopt a course which should keep it afloat as a subject upon which differences would be kept alive, but to allow it at once respectfully to close its career.
The BISHOP of LONDONbriefly replied. With reference to the argument that the questions of false doctrine which would be referred to the proposed tribunal, would in- 673 volve questions of property as well, inasmuch as the parties were mostly holders of benefices, he begged leave to say that if they held benefices, they held them upon the condition of preaching the truth as it was taught in the Church of England—so that that argument was easily disposed of. With regard to another objection that had been urged, that the opinion of the Episcopal Court would be binding in every sense of the term, he assured their Lordships that that was not so. The opinion of the bishops would be binding upon the Judicial Committee, so far as that they would be obliged to report it to Her Majesty; but it would not be binding upon Her Majesty, who might refuse her sanction to it if She thought proper. As to all the other objections to the Bill, including those connected with the question of the Royal supremacy, he had answered them so fully and completely by anticipation, that it would be unnecessary to offer any further remarks upon them. He should, therefore, merely ask their Lordships to give the Bill a second reading.
LORD CAMPBELLmaintained that the opinions of the new tribunal would be binding and conclusive upon the Sovereign as well as upon the Judicial Committee. The words of the Act were—"that it shall be binding and conclusive for the purposes of the appeal." [The Bishop of LONDON: Read on.] He assured their Lordships that clause contained no words which left the Queen the slightest discretion to alter the decision. The words in continuation were—" and shall be adopted and acted upon by the said Judicial Committee so far as may be necessary for the decision of the matter under appeal, and shall be specially reported by the said Judicial Committee to Her Majesty in Council, together with their advice to Her Majesty upon such appeal." These words, he maintained, were cumulative, not qualifying.
§ The DUKE of CAMBRIDGEbegged to be allowed to state the course he meant to pursue with regard to the Bill. He acted from conscientious motives only; and, guided by conscientious views, he felt it to be his duty to vote against the Government. He regretted being obliged to come to such a decision, but he should vote according to his conscience. He had attended carefully to the debate from beginning to end, and he had not heard any satisfactory aguments urged against the Bill. Those who knew him knew that he was no bigot. He looked upon the ques- 674 tion purely as one of religion, and he felt that he could not conscientiously vote against the Bill.
§ The House then divided:—Content 51; Not-Content 84: Majority 33.
| List of the NOT-CONTENTS. | |
| DUKES. | VISCOUNTS. |
| Bedford | Hill |
| Manchester | Lismore |
| Norfolk | Strangford. |
| MARQUESSES. | BISHOPS. |
| Anglesey | Durham |
| Breadalbane | Down |
| Cholmondeley | Worcester. |
| Donegal | Norwich |
| Headfort | BARONS. |
| Lansdowne | Alvanley |
| Westmninster. | Ashburton |
| ERALS. | Bateman |
| Bruce | Byron |
| Carlisle | Clarina |
| Chichester | Castlemaine |
| Cowper | Camoys |
| Denbigh | Campbell |
| Effingham | Carrington |
| Enniskillen | Colborne |
| Fitzhardinge | Cremorne |
| Fitzwilliam | Delamere |
| Galloway | Dufferin |
| Goslbrd | Eddisbury |
| Granville | Erskine |
| Grey | Foley |
| Harrowby | Glenelg |
| Hchester | Hatherton |
| Leitrim | Howden |
| Lanesborough | Keane |
| Mountcashell | Kinnaird |
| Minto | Langdale |
| Morley | Lilford |
| Pomfret | Middleton |
| Roden | Methuen |
| Sheffield | Monteagle |
| Sefton | Overstone |
| Scarborough | Poltimore |
| Spencer | Rayleigh |
| Strafford | Say and Sele |
| St. Germans | Sudeley |
| Suffolk | Vivian |
| Verulam | Wodehouse |
| Waldegrave | Wrottesley |
| Yarborough. | Wharncliffe. |
| Paired off. | |
| FOR. | AGAINST. |
| Earl of Zetland | Earl of Eglintoun |
| Lord Elphinstone | Duke of Buccleuch |
| Earl Cornwallis | Earl of Powis |
| Lord Heytesbury | Lord Douglas |
| Earl of Roseberry | Marquess of Huntley |
| Lord Crewe | Earl of Rosse |
| Lord Londesborough | Marquess of Winchester |
| Lord De Freyne | Earl of Glengall |
| Duke of Grafton | Marquess of Ely |
| Earl of Bessborough | Lord Southampton |
| Lord Portman | Earl of Cardigan |
| Viscount Combermere | Lord Dunraven |
| Earl of Morton | Earl of Kinnoul |
| Duke of Leinster | Marquess of Westmeath |
| Earl of Shaftesbury | Viscount Gage |
| Lord De Mauley | Earl of Desart |
| FOR. | AGAINST. |
| Lord Farnham | Lord Wynford |
| Viscount St. Vincent | Lord Brougham |
| Earl of Camperdown | Lord De Ros. |
§ On Question, that "now" stand part of the Motion, Resolved in the Negative.
§ Bill to be read 2a on this day six months.
§ House adjourned till To-morrow.