Lords Sitting of 15 July 1864

MINUTES.
— SELECT COMMITTEE — Report— Railway Companies (Borrowing Powers* (No. 127).
PUBLIC BILLS—First Reading—Mutual Surrender of Criminals (Prussia)* (No. 204); Naval Discipline* (No. 205); Thames Embankment and Metropolis Improvement (Loans)* (No. 206); Highway Act Amendment* (No. 207); Expiring Laws Continuance* (No. 208); Isle of Man Harbours Act Amendment* (No. 209); Militia Ballots Suspension*.
Second Reading—Judgments, &c., Law Amendment* (No. 194), and referred to Select Committee; College of Physicians* (No. 114); Inland Revenue (Stamp Duties)* (No. 198); Inclosure (No. 2)* (No. 177); Trespass (Ireland)* (No. 202).
Committee—Accidents Compensation Act Amendment* (No. 158); Street Music (Metropolis)* (No. 196); Railways (Ireland) Act Amendment* (No. 178); Drainage and Improvement of Lands (Ireland)* (No. 189).
Report—Street Music (Metropolis)* (No. 196); Railways (Ireland) Act Amendment* (No. 178); Drainage and Improvement of Lands (Ireland)* (No. 189).
Third Reading—Factory Acts Extension* (No. 176); Indemnity* (No. 197); India Stocks Transfer Act Amendment* (No. 195); Defence Act Amendment* (No. 193),and passed.

POWERS OF CONVOCATION TO PASS SYNODICAL JUDGMENT ON BOOKS.— ESSAYS AND REVIEWS.—QUESTION.
LORD HOUGHTON,in rising to put the Question of which he had given notice, as to the powers of the Convocation of the Province of Canterbury to pass a synodical judgment on books written by either clergymen or laymen, said: My Lords, I should hardly be acting with due respect to your Lordships, or to the Law Officers of the Crown, if I did not accompany the Question which I am about to ask with a few comments, for the purpose of showing, as well as I am able, that I am not calling your attention to a speculative or fanciful subject, but to a practical grievance and to
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an immediate danger. I think, also, that I am bound to show in a few words, that there is sufficient doubt and difficulty as to the interpretation of the law upon this subject to justify me in asking Her Majesty's Government to require the opinion of the Law Officers with respect to it. The subject which I now desire to bring before your Lordships is the synodical judgment lately pronounced in the Convocation of the Province of Canterbury on a certain book called Essays and Reviews. The censure or condemnation of books has from the earliest times been a prompt and available means which both the ecclesiastical and the civil powers have employed for the suppression of opinions of which they disapproved; and, therefore, the combination of an entire liberty of the press with good social order is justly regarded as the highest triumph of modern civilization. From the time when the Emperor Charles V. prohibited the use of certain books in the University of Louvaine, from the time when the Pope Alexander Borgia established the system of licences at Rome, that power has been freely exercised, both by Churches and by States. Therefore, there is nothing peculiar in the fact that Convocation has desired to exercise, or has attempted to exercise, this power. But, at the same time, I think your Lordships will regard it as worthy of consideration, whether that power can at the present time be legally, and, perhaps, afterwards you will consider whether it can be constitutionally, exercised. The synodical condemnation which has been pronounced by the Convocation of the Province of Canterbury with respect to this book is in the following terms:—
"That this Synod, having appointed Committees of the Upper and Lower House to examine and report upon the volume entitled Essays and Reviews, and the said Committees having severally reported thereon, doth hereby synodically condemn the said volume, as containing teaching contrary to the doctrine received by the United Church of England and Ireland, in common with the whole Catholic Church of Christ."
My Lords, I am not going to enter, nor do I wish your Lordships to enter, into any theological controversy; my sole interest, here at least, is for the freedom of opinion and the liberties of literature. The opinions expressed in this book, therefore, I will set aside as matters which it does not become me to discuss. The nature and structure of the work, however, are

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so peculiar as to make the case against the censure so much stronger, that your Lordships will permit me to state what it is. Some years ago a young and enterprising publisher formed a scheme for establishing a theological review, which should hare a larger latitude of speculation and scope of criticism than is usual with publications of that character at the present day in this country. For that purpose he collected certain articles; but he afterwards abandoned the project, and published in one volume the essays which were collected for the purpose of forming that review. Thus, then, the volume of Essays and Reviews was collected together without any mutual arrangement on the part of the contributors, and without any connection of the subjects whatever; and it is, therefore, as varied a work as might be any number of the Quarterly or Edinburgh Reviews, to which I believe that some of your Lordships or of your relations occasionally contribute. Therefore, I wish your Lordships to understand that in the condemnation of this work the Convocation of the Province of Canterbury have committed an act Which, if followed up, as of course it will be, will enable them to condemn in toto, in like manner and with the same authority, any work in which they find any one article which contains theological propositions with which they do not agree. Now, this seems to me to be a very perilous precedent, and one carrying with it very serious consequences: for your Lordships will see that this condemnation does not fall upon any propositions which have been selected by Convocation as objectionable in themselves, and which therefore it was their duty to produce, but that it falls upon all the authors of papers in this book, although one of them is a layman and another a clergyman, I believe, Mr. Pattison, in whose essays no one has ever pretended to find anything objectionable. I think that in itself it is a matter of regret that a book of this nature should have been selected by Convocation as the commencement of the Index Expurgatorius of which English literature may expect to be the subject in future, unless prompt objection is taken to this process; and I hope that your Lordships will see that this is a question of pressing and immediate difficulty. Now, as to the law of the subject, the law relating to Convocation is exceedingly doubtful and difficult. Your
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Lordships are aware how almost contemporaneous was the reformation of the English Church with the invention of printing, consequently there were very few opportunities for the condemnation of works by the Houses of Convocation before the Reformation. But it is worth your Lordships' consideration, and I think it conveys a moral which may be of some advantage to the right rev. Prelates, that in the year 1555, in the reign of Queen Mary, the first works which we find condemned by the Convocation of Canterbury are these—a work on The Sacrament of the Altar by Archbishop Cranmer; a Communion Book, which is, in fact, our present Book of Common Prayer; and a suspect version of the Bible, which is the foundation of our present translation. At that time Convocation interfered with matters with which at the present day it would hardly think it right to meddle. I have been told by my friend Mr. Froude, that he has found during his researches among the records an address from both Houses to Her Majesty Queen Elizabeth, requesting Her Majesty as soon as possible to put an end to the life of Mary Queen of Scots, "as being an idolater she was perfectly justified in doing." But this particular question of the suppression of books hardly appears in the history of the English Convocation until those times when secular and ecclesiastical motives were so mixed up with one another that it would be unfair to attribute to the Church of England those defects and errors which really belong to the State. In the times of King William and Queen Anne ecclesiastical politics ran so high, and had so much effect upon the general distribution of patronage and power in this country, that it is no wonder that Convocation took the part it did. Therefore, I would rather direct your Lordships' attention to one great peculiarity of these attempts to censure and suppress books, which is this—that when the Lower House of Convocation were led away by political violence or religious zeal, they were in almost every case restrained by the superior wisdom of the Prelates, which prevented any considerable evil from being done. Thus I find that in 1689, when a work upon St. Athanasius's Creed was presented by the Lower House of Convocation as a subject for condemnation, the Upper House took counsel with the lawyers of the time, and they reported that having consulted those learned in both

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laws they were of opinion that Convocation could not proceed judicially. In the year 1700 there was a still stronger case with regard to a work by Toland, called Christianity not Mysterious, a work which at that, as at all times, would be most offensive to devout persons, believers in the Christian religion. The work was presented by the Lower House to the Upper for condemnation. And what was the conduct of the Upper House? The Upper House took legal advice, and this is the answer they gave—
"Upon our consulting with counsel learned in the law concerning heretical, impious, and immoral books, and particularly concerning a book of Toland's, sent up to us from the Lower House, we do not find how, without a licence from the King, which we have not yet received, we can have sufficient authority to censure judicially any such books; but, on the contrary, we are advised that by so doing both Houses of Convocation may incur the penalties of the statute of the 25 Henry VIII."
In the same year, the Lower House, unchecked it seems by this rebuke, presented for censure no less a book than The Exposition of the Articles, the work of one of the Bishops themselves — Bishop Burnet. This, no doubt, naturally excited some indignation on the part of the Upper House, who returned this reproof, which I will venture to recommend to the attention of the right rev. Prelates, because the case is similar to that which I am now bringing before you—not certain propositions, but the whole book being condemned—
"That the Lower House of Convocation censuring the book of the Bishop of Sarum in general terms, without mentioning the particular passages on which the censure is grounded, is defamatory and scandalous."
I come next to a case, on which, I have no doubt, the right rev. Prelates have very much relied—namely, the celebrated case of Mr. Whiston, in 1710. In that case the works of Mr. Whiston were presented by the Lower to the Upper House for condemnation. The Upper House was at that time presided over by Archbishop Tillotson, and I wish that any of your Lordships who take an interest in the subject would read the letter which was written by the Archbishop—a letter characterized by such great moderation and such profound respect for the law of the land, that I cannot help thinking that it may have been the very document which inspired a right rev. Friend of mine with the strong dislike and distrust of that pre-
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late which he lately expressed. In this letter, which is too long to read, Archbishop Tillotson sums up in the most masterly manner all the objections to the action of Convocation in questions of thi3 kind. He cites all the legal objections to which I have already alluded, and points out that the Act of 17 Charles II., which repealed the Tithe Commission, enacted that no court for dealing with ecclesiastical matters should be set up without the authority of the Crown; and he concludes by saying that it was necessary that the result of the deliberations should be laid before her Majesty, with an humble request that She might be pleased to submit the case to her revered Judges for their opinion. That was accordingly done, and the Judges consulted arrived at a decision which would no doubt carry with it great weight on such matters. Twelve Judges out of sixteen—[Lord CHELMSFORD: There were only twelve Judges altogether]— I am much obliged to the noble and learned Lord for the correction; but eight Judges and the Attorney and Solicitor General reported that this jurisdiction might be exercised in Convocation. They, however, add a proviso at the conclusion of their judgment, which appears to me to deserve great consideration. They say that this being a matter on which an application for a prohibition on the part of the person prosecuted might come on for judgment before some of them, they desired to be understood as giving their opinion, reserving to themselves entire liberty of altering it in case any records or proceedings which they were at the time strangers to should be laid before them, or any new considerations suggested to them which might convince them that they had made a mistake. Now I think that qualification, referring, as it no doubt does, to the possibility of an attempt being made to prohibit such a censure, by mandamus or other legal process, considerably modifies the effect of the judgment. It is, nevertheless, I admit, a document of great importance, and carries with it very serious weight. After their judgment was delivered, the Queen gave to Convocation plenary powers. But a curious historic fact is, that, when acting upon the Judgment and the Queen's Letter giving to Convocation such plenary powers as they required, they proceeded to pronounce sentence on Mr. Whiston, and to submit the sentence to the approval of the Crown; the Crown would not give that approval, and they could never find

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the Queen under such circumstances as to enable them to procure her assent; so that Mr. Whiston escaped. The only other case to which I shall call attention was that of Dr. Clarke, in 1714, whose book on the Trinity was condemned by both Houses of Convocation. He made, however, a submission, which was considered sufficient by the Upper House, but not by the Lower. The result was that there was a most unseemly difference of opinion, and Convocation was dissolved without any condemnation of Dr. Clarke having been passed. There is, therefore, nothing to guide us in this instance, except, perhaps, the case of Mr. Whiston, and connected with that case there were, as your Lordships have seen, great doubts and difficulties. There has since that time been a great deal of legislation with respect to ecclesiastical matters, and I think it a question worthy of consideration, whether the Act 3 & 4 Vict. c. 86, s. 23, does not affect this case. By that Act it is declared that no criminal proceedings shall be instituted against any clergyman in holy orders for any offence against ecclesiastical law in any ecclesiastical court otherwise than was therein enacted and provided. That being so, I consider myself justified in putting my first Question to Her Majesty's Government, Whether they have taken or are willing to take the opinion of the Law Officers of the Crown as to the powers of the Convocation of the Province of Canterbury to pass a synodical judgment on books written either by clergymen or laymen? If it should be determined that Convocation has the power of passing these censures, it still appears to me that it is required not only that the Act should be legal, but that it should be privileged; because, unless it is privileged, in the same way as the Acts of your Lordships' House and the House of Commons, surely it is competent for any person who considers himself damaged in fortune or reputation by any one of those judgments to appeal to the Courts of the land for that protection which the laws of England afford to every British subject. This, it appears to me, is a very grave matter, and can be got rid of only by the argument that those censures are not of such a nature as to inflict any injury on a man's character or prospects. I, however, deny the justice of that argument. I say that those who inflict those censures mean that they should punish, and by punishing injure. It is intended when a censure is passed that it should be
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injurious to the person censured, and it is regarded as a punishment. Let me take the case of the first author whose name appears in this volume of Essays and Reviews—the Rev. Dr. Temple, a most distinguished man, the Master of Rugby School, of the excellence of which the late Royal Commission spoke in such high terms. It seems to me that it may be very well argued that Dr. Temple's interests in that school are seriously injured by the decision which has been pronounced by Convocation. It may be that it may have the effect of preventing parents from sending their boys to the school, or of inducing them to remove them from it, and thereby inflict an injury on Dr. Temple in his status and emoluments. Then there is the case of the last author whose name appears in this book—Mr. Jowett, a Professor of Oxford, who has been treated with such signal injustice as to excite even the strongly expressed feeling of your Lordships' House. Can any one say that Professor Jowett may not have suffered injury in his future career from the censure to which I am referring? Let me suppose the case of one of those eminent writers rising to the highest position in the Church, and occupying a seat on the right rev. Bench—might they not have this censure still hanging over them, diminishing their influence, and preventing them from occupying that position in the State to which by their talents they are entitled? And if Convocation has the power to inflict so serious an evil as that to which I have drawn your Lordships' attention, must they not for very consistency continue their course of condemnation and censure, condemning such works as that of Bishop Colenso, which has created so much excitement lately—or any other work which the earnest clergy of this country may be disposed to regard as heretical? I contend that Convocation has no right to pick out this one book for censure; they should direct their attention equally to all other books of a similar character, and then who can say how far they would have to go? But, supposing this power to be legal and privileged, still even then it ought, I contend, to be accompanied by some degree of form and procedure. It has been urged that it is an essential vice in the constitution of Convocation that it has no power to call for evidence or papers, and does not possess the other attributes of a court of justice. Convocation cannot proceed to make a new canon without the express license of the Crown, and I

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can see no true distinction between making a new canon and pronouncing a sentence of this sort. I wish, therefore, to know explicitly from the Government whether this censure ought not to have been pre ceded by a license from the Crown, and whether it has really any meaning without that license? The fact that Dr. Williams after having made a strong application to Convocation to be heard in his defence was refused permission, and condemned unheard, I am sure will be repulsive to your Lordships' sense of justice. In a letter he has written to me Dr. William complains of this act of injustice, and hi says—
"The nature of a suit in the Ecclesiastics Courts is to deal only with legal issues. The defendants in such a suit are excluded from all the moral bearings which depend upon literary, scientific, or other research. Convocation, by refusing to hear me, has declared I shall be hears nowhere."
My Lord, I feel deeply, not only this act of injustice, but also the mistake which Convocation has made in diverging from the path of useful and practical reform on which it has entered of late years to an attempt to limit freedom of expression and thought in this country. The newly appointed Dean of Lincoln, Dr. Jeremie, Professor of Divinity at Cambridge, spoke with excellent sense on this point in Convocation. He said—
"If we once do so we shall be involved in endless difficulties. I believe that the whole tide of public sympathy, now in our favour, will turn against us, and we shall ultimately lose the means of usefulness we now possess, and which we cannot hope to retain unless we confine our attention to reforms of a particular nature."
If Convocation persists in proceeding in this path, I fear the result will be a reversion to the constitutional form which has been adopted before to check its eccentricities; whereas if they will employ argument to meet argument, knowledge to meet knowledge, and intellect to meet intellect, they will do all which will be the best for their Church and their country. I will, in conclusion, put to Her Majesty's Government the Question of which I have given notice—
"Whether they have taken or are willing to take the Opinion of the Law Officers of the Crown as to the Powers of the Convocation of the Province of Canterbury to pass a Synodical Judgment on Books written either by Clergymen or by Laymen; as to the immunity of the Members of that Body from Proceedings at Common Law consequent on such Judgments; and as to the Forms according to which such Judicial Power must be exercised if it belongs to that Body?"
THE LORD CHANCELLOR: My Lords, the speech of my noble Friend (Lord Houghton) has been so able, that it relieves me in a great degree from any difficulty as to my answer. There are three modes of dealing with Convocation since it has been permitted, which I deeply regret, to come into action again and transact business. The first is, while they are harmlessly busy, to take no notice of their proceedings; the second is, when they seem likely to get into mischief, to prorogue them and put a stop to their proceedings; the third, when they have done something clearly beyond their powers, is to bring them to the bar of justice for punishment. Now, before what Court could they be brought, and what would be the punishment that could be inflicted on them? All the laws about which my noble Friend has addressed you were passed at the time of the Reformation, and were passed for a purpose which the Legislature had most at heart—to secure the supremacy of the Crown. The supremacy of the Crown is guarded by strict words, which carefully enunciate this truth—that the Crown is the fountain of all jurisdiction, ecclesiastical and spiritual as well as temporal, and that none shall presume to exercise that jurisdiction, either directly or indirectly, without the special warrant of the Crown and with an appeal to the Crown. But as if there were an expectation that the clergy would endeavour to usurp the rights and powers which history tells us they have at all times been anxious to obtain, the statutes have carefully provided that the express license of the Crown should be necessary to enable Convocation to act in any manner, and that if Convocation should attempt to pronounce any sentence, or execute any law or ordinance, without the previous license Mid authority of the Crown, they shall incur the penalties of a prœmunire. The enactment of the 25 Henry VIII. c. 19 s, that the clergy shall not presume to it attempt, allege, claim, or put in use, any constitutions or ordinances or canons in heir Convocations without the King's license so to do. Words could not more precisely or accurately define that all jurisdiction to be exercised by Convocation is to be under the power and authority of the sovereign, and that without an express authority they are prohibited from alleging r putting in use any ordinance or canon, hat is, from passing any judgment, option or sentence. But the caution of

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the Legislature did not even stop there. Not only did it require that Convocation must be put in motion by the Crown, but it said that no ordinances or sentences —nothing which Convocation might choose to pronounce—should have any validity until it had received the sanction of the Crown, and that if any attempt were made to give any force to them without that sanction the parties so offending should incur the penalties of prœmunire. I am afraid my noble Friend has not considered what the pains and penalties of a prœmunire are, or his gentle heart would have melted at the prospect. The most rev. Primate and the Bishops would have to appear at this bar, not in the solemn state in which we see them here, but as penitents in sackcloth and ashes. And what would be the sentence? I observe that the most rev. Primate gave two votes— his original vote and a casting vote. I will take the measure of his sentence from the sentence passed by a Bishop on one of these authors—a year's deprivation of his benefice. For two years, therefore, the most rev. Primate might be condemned to have all the revenues of his high position sequestrated. I have not ventured —I say it seriously—I have not ventured to present this question to Her Majesty's Government; for, my Lords, only imagine what a temptation it would be for my right hon. Friend the Chancellor of the Exchequer to spread his net and in one haul take in £30,000 from the highest dignitary, not to speak of the oi polloi— the bishops, deacons, archdeacons, canons, vicars—all included in one common crime, all subject to one common penalty! I cannot contemplate that possibility, and, therefore, your Lordships will not be surprised to hear that I have refrained from approaching the subject — that I have shrunk altogether from taking the first step of asking counsel of the Law Officers of the Crown in the matter. Had I taken that step I have no doubt I should have been advised, that if there was a synodical judgment it would be a violation of the law; I should then have been placed in the disagreeable position of having to advise a prosecution; and, entertaining as I do a sincere affection for the Episcopal Bench and a sincere personal regard and affection for many members of the Episcopate, I am happy to find myself relieved from such great difficulty and embarrassment. But the question is a most serious one for the right rev. Bench; and, in the hope that
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I might save my right rev. Friends from danger, I was extremely anxious to know from them what the thing was which they call a synodical judgment, but in which, as it seems, no person has been condemned. I thought it right, however, to remind the right rev. Prelates that they were under no necessity of producing the records of Convocation if they thought it more prudent not to do so. The most rev. Prelate has not favoured me with a copy of the judgment, and therefore I have been obliged to have recourse to the ordinary sources of information. But assuming that the report of the judgment which I have read is a correct one, I am happy to tell your Lordships that what is called a synodical judgment is a well-lubricated set of words— a sentence so oily and saponaceous that no one can grasp it. Like an eel, it slips through your fingers. It is simply nothing, and I am glad to tell my noble Friend (Lord Houghton) that it is literally no sentence at all. I have had recourse to a publication which seems to have some authority, and I find that the sentence was in terms to this effect—
"That this Convocation having appointed Committees of the Upper and Lower Houses to examine and report on the book entitled Essays and Reviews, and the Committees having severally reported thereon, this Convocation does hereby synodically condemn such book, as containing teachings contrary to the doctrines received by the United Church of England and Ireland, in common with the whole Catholic Church."
If, my Lords, the book had been the work of one hand, this sentence might have had some effect; but seeing that the book is nothing but a pair of covers holding together seven separate essays, being the distinct works of so many authors, and seeing that this sentence does not attribute any offence to anything but the volume containing those separate writings, no one of the authors is condemned, and each one of them may say, "This thing that is condemned is not mine; it is no child of mine — it belongs to you." In this way the volume and the sentence which condemns it may be handed round from one to another, and the application of the sentence be repudiated by the authors in succession. Convocation could not have been more successful if they had synodically sat down to produce a sentence of no meaning, than they were when in their labour they produced this ridiculus mus. As a judgment, this sentence has no meaning whatever— this judgment is no judgment at all. And though, if I desired to be strict and severe

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—as I have certainly no desire to be—I might bring the whole body that have sought to exercise this jurisdiction within the penalties of the statutes, for they have equally broken the law, although their sentence is abortive; yet I am happy to assure my noble Friend, as no one is hurt by this oily form of words—as no one can say that he is injured by them—that having regard to the impotency of the thing, Her Majesty's Government intend to take no action in the matter, Solvuntur tabuæ risu. But, my Lords, I would remind the right rev. Bench that the question raised by this proceeding is a very serious one, and in order, if possible, to prevent Convocation being misled hereafter, I wish to explain exactly how the case stands. The question does not depend, as I have seen it stated, upon the Act of Henry VIII alone. That was one out of a number of statutes. But the Legislature was anxious to repeat again and again the great principle of the law upon which the constitution of the country as regarded the union of Church and State depended—namely, the supremacy of the Crown in all matters civil and ecclesiastical. That principle is most clearly stated in the language of the 17th section of the 1st of Elizabeth, c. 21, which is as follows—
"And that also it may likewise please your Highness that it may be established and enacted by the authority aforesaid, that such jurisdictions, privileges, superiorities, and pre-eminences, spiritual and ecclesiastical, as by any spiritual and ecclesiastical power or authority hath heretofore been or may lawfully be exercised or used for the visitation of the ecclesiastical state and persons, and for reformation, order and correction of the same, and of all manner of errors, heresies, schisms, abuses, offences, contempts, and enormities, shall for ever by authority of this present Parliament be united and annexed to the Imperial Crown of this realm."
Now, if there had been ten thousand times the jurisdiction attaching to Convocation, the whole of it would be taken away and annexed to the Crown. It could not remain in Convocation, and for this plain reason— because the statute of Henry VIII., con firmed by the statute of Elizabeth, has declared the final ownership of all this jurisdiction shall be vested in the Crown. But from Convocation no appeal is given. Now, it is impossible that any body can exercise ecclesiastical jurisdiction without appeal to the Crown; from Convocation there is no appeal; it therefore can exercise no jurisdiction to condemn either books or authors even if it had a license so to do. In the introductory part of the statute of 37 Henry VIII. c. 17, the Crown
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is described as being Supreme Head on earth of the Church of England, having full power and authority to correct, punish, and repress all manner of heresies, &c., and to exercise all other manner of jurisdiction, commonly called ecclesiastical jurisdiction. Again, in the same preamble, it is stated—
"Inasmuch as your Majesty is the only head of the Church of England and Ireland, to whom by Holy Scripture all authority and power is wholly given to hear and determine all manner of causes ecclesiastical, &c."
Again, by the antecedent statute of Henry —23 Henry VIII. c. 9—it is declared, that no person is to be cited to appear be fore any spiritual jurisdiction out of the diocese "wherein he dwelleth," except by the Archbishop acting as a Court of Appeal. All those statutes taken together must bring us to this conclusion—that it was the intention of the Legislature to marshal ecclesiastical jurisdiction for trying all ecclesiastical offences in this order—first, the diocesan of the diocese in which the person cited lives; then the Archbishop in court of appeal; and lastly, the Crown, as the supreme head and the final administrator. But if you interpose your Convocation you interpose a body that is not exercising any accountable jurisdiction—that is, not controlled by any court of appeal. It would therefore be an anomalous body exercising an anomalous jurisdiction, not falling at all within the order of arrangement contemplated by the statutes, and not amenable to the final jurisdiction of the Crown if it should attempt to exercise anything in the nature of jurisdiction. It is impossible that Convocation can exercise anything like this jurisdiction. With regard to your meeting among yourselves as a debating club, expressing your opinion whether this or that book is a good or a bad one, even that is not a very small nor is it a very proper thing, because you may thereby involve yourselves in circumstances of great peril. You cannot declare that the book of a clergyman is heretical without involving the author in the charge of heresy. Let me bring before you the predicament in which any individual member of the Episcopal Bench may stand. You, the Upper House, come to a particular determination. But suppose the author of one of these essays is presented to a living or any other piece of ecclesiastical preferment, and suppose that one of the Bishops who has been a party to these proceedings is called upon to institute.

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The Bishop will naturally say, "How can I institute a man whose work I have joined in condemning for heretical opinion?" But in declining to institute the Bishop might be involved in very serious consequences, and be subject to a proceeding denoted by another hard word, a duplex querela. I call upon the Bishops to pause before they again place themselves in such a position— to pause for their own sake, even if they have no regard to the injustice, to the anomaly, to the unreasonable spectacle of condemning a man whom they have no power to convene, whom they have no authority to hear, and whom, when he presents himself as a suppliant, their own timidity and fear of going beyond their tether compel them to dismiss. Those who do not concur in these proceedings may probably think that, by protesting against such a course, they may save themselves from consequences; but, if they will take my recommendation, whenever there is any attempt to carry Convocation beyond its proper limits, their best security after protesting will be to gather up their garments and flee, and, remembering the pillar of salt, not to cast a look behind. I am happy to say that in all these proceedings there is more smoke than fire. The words of condemnation are innocent and innocuous, though they do not, probably, proceed from a spirit that is equally harmless. As to the Question of the noble Lord, after what, I trust, may be an intelligible statement of the law, I have only to assure the noble Lord that it is not the intention of the Government to take any steps in the matter.
THE ARCHBISHOP OF CANTERBURY: My Lords, I assure your Lordships that I feel the great disadvantage under which I must labour after the two speeches which have just been made, and especially after that of the noble and learned Lord on the Woolsack. At the same time I must be allowed to express my sincere regret that in the concluding words of the noble and learned Lord's address he should have imputed motives. I can assure your Lordships that in the course which we took there was no touch of malice, and that our object was simply and solely to vindicate the Church of England from complicity with opinions which we considered most mistaken and dangerous. I cannot but lament that it was not thought right that the Law Officers of the Crown should give their opinion in this matter. It was not my fault that their opinion was not ob-
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tained. Before I took a single step on this subject in Convocation I said, "I will not move till I am satisfied that I am entering on a legal course." A case was accordingly drawn up and submitted to the Law Officers of the Crown, who hesitated, however, in pronouncing upon it; and the answer they at last returned was that they ought not to give their opinion. I regretted this extremely, because the question was one which touched the Royal supremacy, and I did think that it behaved the Government to procure the opinions of the Law Officers on such a question, and to shield Convocation from pursuing a wrong course. Being deprived, however, of this valuable assistance, the case was submitted to Sir Hugh Cairns and Mr. Rolt, who were unequivocally of opinion that we were proceeding in a legal course. This was the case submitted to them—
"Is the Convocation of the Province of Canterbury, when legally assembled under the Queen's writ, estopped by the statute of 25 Henry VIII. c. 19, or by any other statute, from proceeding to pronounce synodical condemnation upon a book, not intending to proceed against the author, without receiving the special Royal License for the purpose?"
The opinion of Sir Hugh Cairns and Mr. Rolt was as follows:—
"We are of opinion that the Convocation of the Province of Canterbury is not estopped by the 25 Henry VIII. c. 19, or any other statute, from expressing by resolution or otherwise their condemnation or disapprobation of a book, although no special Royal License is given for the purpose. Exception was taken early in the last century to the proposal of Convocation to pass synodical censure on a sermon preached by Bishop Hoadley, but it was not alleged that they were disabled by statute from so doing."
My Lords, I know it is very presumptuous in me to venture to bring forward any legal argument; but I cannot help quoting a single passage from a pamphlet which I hold in my hand upon Convocation and Provincial Synods. I do so because I think the gist of this question has been entirely overlooked by both the noble Lords who have addressed your Lordships on the subject. They have spoken as though we were attempting to condemn a person; whereas the question is whether we may not condemn a book or condemn opinions. Now, speaking of the necessity of the Royal Assent before passing a canon, the pamphlet says—
"Not only is the power of Convocation to make canons thus limited, but it is very doubtful, to say the least, whether the Upper House, as such has any jurisdiction or power to try or condemn

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a clergyman for the publication or preaching of heretical opinions. In the celebrated case of Mr. Whiston, in the reign of Queen Anne, the Queen, on the petition of the Upper House, took the opinions of the Judges on this question. They were divided in opinion; and, although the majority were of opinion that such a power did belong to the Upper House, they reserved to themselves the power to decide otherwise if the question were brought before them by prohibition."
Now, this is the material passage—
"They were, however, of opinion that heretical opinions might be examined and condemned in Convocation without convening the authors or maintainers of them."
If that is the law, Convocation is now within it. I think, therefore, that all the dreadful penalties which the noble and learned Lord spoke of as being in store for us may be passed over without any great concern. There is a passage in the judgment of the Privy Council in the case which seems to me to invite the very thing which has been done by Convocation—
"A few short extracts only are before us, and our judgment must by law be confined to the matter which is therein contained. If, therefore, the book, or these two essays, or either of them as a whole, be of a mischievous and baneful tendency, as weakening the foundations of Christian belief, and likely to cause many to offend, they will retain that character, and be liable to that condemnation notwithstanding this our judgment."
This passage surely shows that the book itself might be justly liable to condemnation, though the Court, having only "a few short extracts" before it, could not take cognizance of all the matters contained in it. Apprehensions are entertained lest Convocation should proceed continually in the same direction as it has lately taken, constantly condemning books as they are brought before them; but I ask your Lordships whether since the Reformation there has been any crisis in the English Church of so grave a character as that through which it is now passing; and whether there is ever likely to occur in the next 200 or 300 years so serious a case or one calling so urgently upon Convocation, the Synod of the Church, to pronounce its opinion. The very passage I have quoted from the judgment seems to me to intimate that the book does strike at the foundations of Christian belief. I will abstain from entering into theological questions; but, taking one sentence only from the book, "no testimony can reach the supernatural," I say that that strikes at the root of Christian belief, and that if such a doctrine is to prevail there is an end to the Gospel of our Lord Jesus Christ.
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I ask again, was there ever a case which called so loudly for our interference? Here is an address which was forwarded to me from 500 or 600 of the clergy of one diocese only—the diocese of Rochester— who say—
"Believing, as we do, that imminent danger will accrue to the truth, and to the Church of England and Ireland as a witness of the truth, and an instrument in the hands of God for the salvation of men's souls, if steps are not taken by which the said disastrous effects on the popular mind may be promptly met, and, if possible, prevented, we earnestly beseech your Grace to take counsel with the rest of the archbishops and bishops of the Church of England and Ireland with a view to the adoption of such measures as may clear the Church from any supposed acquiescence in an interpretation of its articles and formularies which we hold to be at variance with their plain meaning and with the true faith."
Now, with such appeals as these could we really sit with our hands folded and say, "We know we have the power of pronouncing condemnation, but we are afraid of the outcry which may be raised if we condemn the book, and so we will not condemn it?" I say we should have been unworthy of our position in the Church if we had adopted such a course.
THE LORD CHANCELLORsaid, that in his quotation as to the power of Convocation the most rev. Prelate had omitted a passage declaring that tenets and opinions might be examined and condemned under the authority of a Royal license.
THE ARCHBISHOP OF CANTERBURY: I hope, in conclusion, that three or four clergymen of the Church of England will never again be found to combine—for such, I must assert, is the proper term to use in this case — to publish opinions of such a dangerous tendency. I know that in the Edinburgh Review and elsewhere the charge of combination has been denied, but combination I must call it, and that there was concert between these clergymen I cannot but believe. I think it is hardly fair to say that the parties to this question have not been heard. If there should ever be a renewal of the agitation which has existed in the Church since this publication, I trust that Convocation will be found ready to act again; bat I hope it will be long before any such crisis does occur in the history of the Church of England. I will only repeat that I regret very much that the opinion of the Law Officers of the Crown was not obtained, and that their opinions had not been pronounced upon it before Convocation proceeded to take cognizance of the case. "We took the best

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opinions we could get, and we believed that we were fully authorized to act upon those opinions.
THE BISHOP OF LONDON: My Lords, I think the most rev. Prelate has good ground of complaint that his desire to obtain the opinion of the highest legal authorities was not granted. There is no subject which may not be treated with ridicule, and perhaps there are matters which may be more easily disposed of by ridicule than by more serious treatment; but, still, we know that very grave consequences often arise from very small causes—and upon no subject are those consequences more likely to arise than on the intricate relations between the power ecclesiastical and the power temporal. The experience even of the last fifteen or twenty years has shown that these disputes between the civil power and the ecclesiastical power, unless attended to in the beginning with great care and caution, are likely to lead to very serious evils. A cloud no bigger than a man's hand may spread until it bursts into a hurricane. Within the last fifteen years experience has shown us that if the Government of Sir Robert Peel had been advised to treat with due respect the little and insignificant squabble which arose, I believe, in the Presbytery of Auchterarder, we should not have been reduced to the unfortunate predicament of seeing the Established Church of Scotland rent in twain, and one very large section of the religious feeling of that country become entirely separated from the Established Church. It does, therefore, seem to me that when such questions arise, however limited their sphere, and however unimportant, it is desirable that those who are at the head of affairs should take such steps as will, if possible, settle the disputed questions before they attain a gravity which may be dangerous. The noble and learned Lord has favoured us, who formed the minority in Convocation, with some advice; but if your Lordships had ever attended a meeting of Convocation you would know that the summonses are couched in most imposing language, and I know not what penalties are threatened to those who may be regardless of the commands of their superiors, and refuse to take any part in the proceedings. It is all very well to call this a debating society, but it is a debating society which must meet when the Queen summons it; and it would be hardly decorous in me without grave cause to refuse to obey the
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summons. If, therefore, there is the slightest chance that the law may be violated by such a body, it is undoubtedly necessary that the very highest legal authority should as soon as possible be consulted and should pronounce upon what is the law, and what is the course which each individual belonging to that assembly ought to take. This was done in the reign of Queen Anne in Whiston's case, when the matter was referred to the twelve Judges. I am not sure that that opinion has been correctly stated by the noble Lord who opened this discussion. Unless I am mistaken, the question referred to the twelve Judges was whether, under the circumstances in which Convocation then met, it could proceed to censure the book of Mr. Whiston? Those circumstances were somewhat peculiar, for the Queen had summoned Convocation to take into consideration the religious condition of the country; and although the Queen had not actually named the book of Mr. Whiston, yet she had given a general license to Convocation to deal with all similar books. Therefore, so far as I can judge, I am distinctly of opinion that Mr. Whiston's case did not in any way establish the rule that Convocation without the Royal Assent was entitled to enter upon a consideration of such matters. That was not a case of Convocation entering upon a matter without the Royal license so to do; but a case in which Convocation was called together by the Queen to enter upon such subjects generally, and then the opinion of the twelve Judges was taken whether that general license entitled them to consider a particular branch of the general subject. Now, undoubtedly, there is no such general license in the present instance, and therefore doubts may fairly arise, and did present themselves to the most rev. Prelate, as to whether he would be justified in proceeding to do that which the clergy, not of one diocese alone, but of many dioceses, called upon him to do. No one can know the most rev. Prelate without being convinced that he would not proceed in this or any other matter without being clear and distinct as to what was his duty. The natural course for him was to request that the highest legal authority should set him right if he were likely to go wrong, and that step he took upon this occasion. It would have been well if the noble and learned Lord had spoken at the proper time with that

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clearness and precision with which he usually speaks, and has spoken now, or if the Law Officers of the Crown had been permitted to deliver their opinions upon this matter. Instead of that course, however, the noble and learned Lord held his peace while Convocation was proceeding, and after they had concluded their deliberations he now comes forward to pronounce, with all the force of his great authority, against the legality of their judgment. Now, the most rev. Prelate had, it appears, taken privately the advice of two of the most eminent lawyers of the day. But it must be admitted that, even with the authority of two such eminent men in his favour, Convocation is not necessarily acting legally; for their Lordships knew how frequently men most eminent in the law proved to be mistaken in their opinions. I need only refer again to the northern portion of this kingdom an instance. One of the peculiarities of the difficulty which led to the Scottish disruption was that those who held ecclesiastical authority in Scotland at that time were advised by one of the most eminent lawyers of the day to take the steps which they did take. The name of the lawyer still survives in his son, the present Lord Advocate of Scotland, and he was regarded as a most able and acute lawyer. He gave a distinct opinion, which afterwards turned out to be wrong; but that he was mistaken was not found out until the dispute had become too serious to be settled quietly. It is well to be forearmed in such matters, not only with an able opinion, but with the opinions which have the highest authority. Let it not be supposed that there is anything like a desire on the part of the clergy to violate the law, or to stretch their ideas of ecclesiastical rights beyond what is legal and proper. No body of men are more anxious to obey the law than the clergy, but they must know what the law is before they can obey it, and you (the Government) do not tell them. You leave them to find it out for themselves, to go to the best counsel for advice; and when they act upon the opinion thus obtained you tell them—very properly tell them—that they have done wrong, only it would have been better by a timely opinion to have prevented their wrong doing. There was, indeed, good reason for the most rev. Prelate taking the opinion of counsel upon this matter. I hold in my hand a somewhat remarkable document,
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an address of the Bishop of Exeter to his clergy in the course of last summer. I do not know whether that rev. Prelate still retains the opinions which he then expressed, but upon that occasion, speaking of Convocation, which he understood had entered upon a similar examination of a book which has been alluded to already in this debate, he said—
"They are sober, discreet, as well as learned and able men, and they would not have rushed into such a danger of violating an Act of Parliament—the Act which relates to the supremacy of the Crown in these matters—without great caution, and without being sure that they were right. Now, we know this is not the first occasion on which Convocation has dealt with heretical books, so called. But I see that on those occasions the wise men—our predecessors—who had to deal with them took special care not to proceed without the license of the Crown. I hold in my hand an answer of the archbishops and bishops in the year 1702, when the Lower House of Convocation called upon them to deal with the book of Toland, in which they said, 'We do not find how, without the license from the King, which we have not yet received, we can have sufficient authority. We know not how, without that license, we can have sufficient authority to censure judicially any such works'—not men, which is an important distinction—'but, on the contrary, we are advised that by so doing both Houses of Convocation may incur the penalties of the statute 25 Henry VIII.'"
The right rev. Prelate having expressed that opinion, it was not unnatural that doubts should have presented themselves to the most rev. Prelate, and that he sought to have those doubts dispelled by the highest authorities. In the course of the debates in Convocation on the matter now under discussion, further doubts on the legality of the proceedings were expressed. It was there stated—
"In Burnet's case, 1700, the Lower House having made a general representation against his book on the Thirty-nine Articles (Bull and Sherlock protesting in the minority), the Upper House answered—' That the Lower House of Convocation censuring the book of the Bishop of Sarum in general terms, without mentioning the particular passages on which the censure is grounded, is defamatory and scandalous.'"
This was one of the points raised against the present judgment. Another was, that it is not according to the precedents of this Synod to censure any writings which have been previously judged in the Ecclesiastical Courts. It is obvious, therefore, that the present case was one requiring to be solved in limine by the highest legal authority. I do not myself think that it is possible to find any precedents for what has been done by Convocation in this case. The case of Bishop

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Hoadley has been quoted. He was attacked twice—once before he was made a Bishop, and once after he became Bishop. When he preached a certain sermon before he became Bishop, it was brought under the censure of the House of Convocation, and the very question now argued was brought forward. It was said that the Bishops hesitated to proceed, because they could not believe that they possessed any power so to do, without the authority of the Crown. When Bishop Hoadley's case came on again ten years afterwards, the Court was dissolved—solvuntur risu—and although it was revived again for a short time, Convocation was soon afterwards dissolved, and did not meet again for 100 years, scarcely entering on any other such, except it were that of Dr. Clarke. The mention of Dr. Clarke's name reminds me that I am not so hopeful as the most rev. Prelate in believing that we may never have any more such books as those referred to in this debate. This is, no doubt, a grave crisis through which the Church of England is passing. I look with as much sorrow as any man on the dangerous opinions which are current in the present day; but I trust that the truth will ever prevail. There is one who watches over His Church with greater power than Convocation, and I, for one, do not doubt that by the help of sound argument, learning, and pious lives, the clergy will more successfully maintain the truths committed to them than by the intervention of such censures as those of which we have heard. Thus the Church has been preserved in former trials. I doubt whether the present trial through which the Church is passing is as great as when the Rector of St. James's (Dr. Clarke) suggested an amended edition of the Prayer Book, from which all mention of the Trinity was omitted. There was at that time a large and recognized Arian party in the Church, and this may remind us that the Church has had other and more severe periods of trial from which she has happily passed uninjured. Men always exaggerate the importance of the questions of their own time, and if the only way of meeting errors of this kind is by the censure of Convocation, we may expect a long catalogue of such conflicts as the present. I trust that this will not be the case, and that the peace and harmony of the Church may be preserved by the good sense and good feeling of the clergy. Convocation is not a large body,
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and comparatively few of its members attend. At the meeting now in question perhaps not more than forty to fifty members were present. [The ARCHBISHOP OF CANTERBURY: Sixty.] At any rate I think it probable that the Church, having its attention called to the subject, will think it desirable to treat these matters in another way. We shall, however, be greatly assisted by knowing whether the course which has now been taken, and which many of us deem unwise, be legal or not. We may be called upon by ecclesiastical authority, though I hope not, to take a similar course again. I desire to know the law for my own protection, and I do not know how I am authoritatively to ascertain the law unless I can have the opinion of the Law Officers of the Crown. With regard to Convocation and the position it holds in this country, no one will deny that there is a growing disposition to revert to the action and authority of Convocation. If that is the case, it is the more imperative on the part of that body to see that it maintains its dignity in the sight of this Empire, and to perceive that, if it seeks immunity from criminal proceedings by saying that its resolutions, however high sounding, have no validity, it then, indeed, occupies a humiliating position. In former times, when I filled a lower position in the Church, I never felt so strongly as some of my brethren the necessity for resuscitating this body from its slumbers. Since I have been called to my present office in the Church, finding Convocation resuscitated, I have always endeavoured to perform my duty as a member of Convocation. I do think, however, that our position will be intolerable if we are told, on the one hand, that we are violating the law, and if, on the other, we cannot obtain an authoritative opinion as to what the law really is.
LORD WENSLEYDALE (who was most indistinctly heard)said, that his most rev. Friend the Archbishop ought to take the best possible advice whether Convocation had a right to act judicially, and condemn a work as heretical, or merely to express their opinion upon the qualities of the work as injurious to the Church. In the one case, it had the qualities of a judgment of a court of competent jurisdiction. They might publish it with impunity, whether libellous or not; they could not be punished or rendered liable to an action, however unjust it might be. But if they were not invested with judicial

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powers, the publishers or the document would be liable to action, and only have the common protection of every individual in commenting honestly on every published document; and if they were found to have exceeded that universal privilege, they were liable to punishment or to make the injured party compensation. His most rev. Friend ought not to rely on any barrister's opinion, even that of the Attorney and the Solicitor General. This House had unquestionably the power of taking the best possible opinion — that of the Judges; a power which had in his own time been exercised on a Motion by the right rev. Bishop of Exeter as to the Canadian Reserves, and he strongly advised the most rev. Archbishop to move the House to obtain that opinion.
THE BISHOP OF OXFORD: My Lords, it was a matter for the discretion of my noble Friend (Lord Houghton) whether he should or should not bring forward this Question; but having determined to bring this matter before your Lordships, I for one—and I believe my right rev. Brethren agree with me—have nothing whatever to complain of in the tone or manner in which my noble Friend has discharged the duty he has imposed upon himself. My noble Friend, however, fell not unnaturally, for one unacquainted with ecclesiastical matters, into a few palpable mistakes, which detracted somewhat from the weight of his remarks. There was, for instance, considerable confusion in his account of what the twelve Judges agreed upon, and upon what they differed, when their judgment was asked by Queen Anne. The whole Bench, including the Attorney and Solicitor General, agreed in declaring that the Convocation had a jurisdiction which it was free to exercise as to books. They said they conceived that a jurisdiction existed in matters of heresy and the condemnation of heretics. Four of the Judges differed on the second clause of the jurisdiction over the man, but they united with their brethren in asserting the jurisdiction of Convocation over books. They said, "We conceive that heretical tenets and opinions may be condemned, if authorized by Royal license." The authority of the Royal license is the license which calls Convocation together. I say so for this reason—that there is no instance of any license other than this being received for the exercise of this jurisdiction by Convocation. The Queen's Letter was no license; and here was the second error into which
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my noble Friend fell. He spoke of the Queen's Letter accompanying the answer of the Judges, informing Convocation of their powers, as if that was a Royal license. But a Royal license is drawn in certain peculiar words, it gives certain peculiar powers. It is framed upon the Act of Submission of Henry VIII., and does not agree in any one point with the Letter of the Queen accompanying the opinion of the Judges. It is, therefore, simply a mistake to suppose that that was a license under the broad seal as is required by the Act of Submission, to enable Convocation to do this thing. It had no relation whatever to it, but was simply a letter accompanying the answer of the Judges, giving an opinion with respect to the legal question asked by Convocation. That is a most important point in the argument, and therefore it is that I have noticed it, and not from any pleasure which I take in showing that my noble Friend has fallen into error. He also fell into another error of the same class when he said that at all events the Clergy Discipline Act, which required that in every suit against a clerk a certain line should be followed, had taken away from Convocation all power to deal with clerks. But how does that touch the condemnation of the book? That was the power the Judges maintained that Convocation possessed; that was the power which was exercised in Convocation upon the authority of the twelve Judges of England, never yet contradicted by any authoritative sentence. But if I have no ground to complain of the tone of the speech of my noble Friend, I think that— I do not say in common with my right rev. Friends, but in common with this House—I have good ground to complain of the tone of the noble and learned Lord on the Woolsack. If a man has no respect for himself, he ought, at all events, to respect the tribunal before which he speaks; and when the highest representative of the law of England in your Lordships' House upon a matter involving the liberties of the subject and the religion of the realm, and all those high truths concerning which this discussion is, can think it fitting to descend to a ribaldry in which he knows that he can safely indulge, because those to whom he addresses it will have too much respect for their character to answer him in like sort—I say that this House has ground to complain of having its high character unnecessarily injured in the sight of the people of this land by one

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occupying so high a position within it. But, my Lords, this is not all. I venture to say that in such a discussion as this there is one duty which more than another it is imperative upon one holding the high place of the noble and learned Lord to be careful to discharge: it is that he does not by any license of speech, or by any carelessness of assertion, mislead your Lordships as to one single fact or one single point of law. Such carefulness, I venture to say boldly in your presence, my Lords, has not been exercised to-night. I will take but one instance. The noble and learned Lord stated that he had applied to my most rev. Friend and myself to give him a copy of the judgment pronounced in the Upper House of Convocation of Canterbury; that he had accompanied the request with a caution that no man was bound to criminate himself; and that my most rev. Friend and I had acted with a wise prudence in not venturing to produce the document. My Lords, what are the facts? After I came into the House this evening the noble and learned Lord asked me to speak to him on the Woolsack. He said, "Have you with you in the House a copy of your judgment?" I replied, "I have not." He said, "I should have liked, if you had, to have seen it." I replied, "I wish that you had told me so before, for nothing would have given me greater pleasure than to have produced it to you." The noble and learned Lord asked the same question of my most rev. Friend the other night, and received an answer exactly similar to that which I gave him to night—that we were most ready to put into his hands the document for which he asked. I ask your Lordships is it the way in which this House should be treated that such a request so answered should be transfigured into the charge which the noble and learned Lord has thought fit to bring against the most rev. Prelate and myself to-night. I must say that I think throughout the whole time he was dealing with the great question of law, the same misleading tendency pervaded the speech of the noble and learned Lord. Throughout he endeavoured to suggest to your Lordships that the question which we were raising was this—whether jurisdiction resided in us spiritual persons as separate from the Crown in virtue of our spiritual character; or whether, as he maintained, jurisdiction in this land comes all of it, ecclesiastical as well as civil, from the
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Crown? That was a suggestion that we were in this case attempting to claim a jurisdiction independent of the Crown. My Lords, it is scarcely conceivable that one having the knowledge of the law possessed by the noble and learned Lord on the Woolsack could really have thought that what we claimed, sitting under the Queen's Writ, acting because we are called together under the Queen's Writ according to Act of Parliament, was to act by a power opposed to the Royal supremacy— when we meet together at the call of the Queen, because we acknowledge that she has such supremacy, and do our duty as the Queen's subjects in a Court which she has called together. The attempt was to suggest that here was one of those reaches of power of which he said the clergy were always guilty, by attempting to set up something against the jurisdiction of the Crown. There was an attempt to make your Lordships believe that which was not only not the fact, but which the very fact of our so sitting contradicted in the act of our sitting. I complain of this; and I complain also of the way in which the noble and learned Lord quoted the 37 Henry VIII. c. 17, to make out his case, when he said that our laws gave to the Queen the title of "the Head of the Church." Are your Lordships aware that though that title was so given in that Act Queen Elizabeth refused to receive or bear it, and that in the revival of the old Acts providing for the Royal jurisdiction, the part which declared the Sovereign to be the Head of the Church, was by Her own special command excluded from the revival? In these cases, I think that this House has a right to have all these matters stated by this high authority in the way in which your Lordships can be most religiously preserved from taking any wrong view of the matter upon which you are addressed. And, my Lords, when at last we are told that it was timidity only which had prevented the Upper House of Convocation from proceeding against the man in this case, here was an imputation of motives, unworthy, I will not say, of those who sit in that House, but unworthy of those who dared to throw out such an imputation. But I leave this to the good taste of your Lordships' House. I have not a doubt how in this House, and how throughout the country, all that I have ventured thus lightly to touch upon will be received. I know enough of this House, and of the people of Eng-

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land, to know that it is not by trying, in words which shall blister those upon whom they fall, to produce a momentary pain on those who cannot properly reply to them, that great questions will be solved; but that it is by dealing with them with calmness, with abstinence from the imputation of motives, and above all with the most scrupulous regard to stating upon every point that which shall prevent any man in this House being led to a conclusion other than that which the facts warrant. But, my Lords, I must say, with the most rev. Prelate, that I consider this to be one of those peculiar cases in the history of the Church which call for unusual remedies to redress the evil. What was it that was before us? My noble Friend (Lord Houghton) has said that there was an attempt to repress the liberty of thought. For one, I utterly disavow any such desire. I do not believe that people can be kept to a right belief by any such means. No one can go further than I do in saying, "Let argument be met by argument, learning confronted by learning, and the right shall prevail." But was that our question? Our question was this—men bound by the most solemn obligations that man can possibly take to teach according to the particular line of doctrine laid down by the Church, as the condition of their holding the ministry—these men, in the judgment of this Bench, taught publicly, and in virtue of that sacred office, the opposite to that which they had undertaken to teach. Our action was for the maintenance of truth, and to hold to engagements, and it was not to put down opinion. We had to deal with this question—"Shall the Church of England see these false doctrines stated by those who hold her ministry; and shall we, her highest ministers, having under our Queen the opportunity of, for the ministry of that Church, disavowing these errors—shall we timorously hold our tongues; because if we speak we may be subject to ribald reproach; or shall we, in the name of the Church of England, clear that ministry from being supposed to be at liberty to declare one thing as the condition of taking it, and then to speak another as the habit of its exercise?" It was not, my Lords, to put down opinion, it was to prevent men breaking their solemn obligations, that this step was taken. Nor let it be thought that you have heard the whole facts of the case when you have been told, as you have been told to-night, that the censure was a mere general one,
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and that no propositions were abstracted. There were propositions carefully extracted from the book, and cited as the grounds of the judgment, and this course has been always followed on the part of Convocation. In the case of Mr. Whiston the propositions were stated separately from the judgment, but the judgment was founded on the propositions. That was the course which we pursued. We took out of the book the specific propositions which we deemed it most essential to condemn, and we then spoke the condemnation. It was said that in doing this we resorted to the un-English unfairness of condemning men who were not allowed to answer the charges which were brought against them. But I pray your Lordships to mark how the matter stood. We, in the first place, did not condemn the men, while we censured much that was in the book. But is it true that the individuals concerned had no opportunity of answering the charges which were made? Why, edition after edition of the work was published after the passages which were objected to were known, and if the writers wished to explain they had ample opportunity to do so. It is, I would add, one thing to condemn a man, and another to censure a book. The man might not have intended any harm, and if you proceed to censure him you must give him an opportunity of stating what it was he did mean, so that he might be enabled to retract what was found fault with if he were so disposed. The book, however, cannot retract itself. It cannot explain itself. It stands a litera scripta—a document in court which speaks on its own behalf. And if any one of these writers found himself in the company of men who expressed themselves against the religion of the country in a way which he thought incompatible with his position as a clergyman, had not he, I would ask, sufficient opportunity of saying, "I will no longer appear in such company?" Inasmuch, however, as no such attempt was made, and as each successive author allowed his name to be given to the world in the same companionship in each successive edition of the work, he, I maintain, rendered himself thereby morally responsible for the whole of its contents. Here is the true question. We are set in trust in this land for this—that we may be the depository of the truth which God has revealed, as held by this reformed Church of England. Was it or was it not our duty, when we saw the peace of the Church

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assailed, to use the instrument which, as we believed and still believe—I may say with additional force when we see the nice avoidance of the expression of any opinion that we were really in the wrong—firmly was our right, and because it was our right, imposed upon us a corresponding duty? One thing I venture to state is this—that I would rather subject myself, in the presence of my countrymen and of your noble House, to any amount of that invective and insinuation, and all those arts of I will not say what part of the Bar of England of which we have seen something to-night—I would, I repeat, rather a thousand times incur it all, than have to look back on my death-bed on myself as one of those who had not striven for the truth of our Established Church, and had not encountered, because I was afraid, personally, of the consequences, anything which the maintenance of that truth might entail. There is, my Lords, a single further remark which I would wish to make. We have heard of the importance of preserving peace and quietness on such questions as that which we are discussing: I firmly believe that such a judgment as that which we have pronounced is the best means of restoring peace to the Church. I believe, indeed, that that effect has already been produced. I know, at all events, that from all parts of this country I have myself received assurances of minds quieted, permitting men to go again about their ordinary duties without being stirred up by the feeling that the Church was resting under an imputation of having allowed to pass uncontradicted false doctrines promulgated by her teachers; and I am satisfied that if you would avoid the recurrence of such a state of things as you have witnessed you will find that the best way in which that can be done is by allowing the Church in her authorized manner to pronounce for her followers, as she has done in this instance, that she disclaims for her living ministry this erroneous teaching.
THE LORD CHANCELLOR: My Lords, the right rev. Prelate has thought proper to accuse me of having misrepresented what took place between us in a manner which will serve as a warning to me how I hold communication with him in future. The lesson will not be thrown away upon me. He has thought proper to construe a statement which I made, in the most perfect good nature, into a charge against himself and the most rev. Prelate
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beside him. But the most rev. Prelate at all events does not, I trust, look upon anything which I have said as conveying a serious charge against him, as having improperly desired to withhold the sentence passed by the Convocation. I should be the last man to make such a charge; but, should the most rev. Prelate feel that he has any grounds for complaint, I beg most freely to express my regret that any words of mine should have produced that impression. To return to the right rev. Prelate, I find that he has in the same excited manner which characterized the greater portion of his speech —and at which I beg to say that I was not at all surprised—with much license of language charged me with misrepresenting a passage in an Act of Parliament. My apology for him, I think, must be that he himself docs not quite understand it. The passage cited claims for the Crown, as head of the Church, all jurisdiction and authority; but he says that the title was disclaimed by Queen Elizabeth. So it was in a spiritual sense, but "Head of the Church" is in common phraseology the ordinary mode of expressing the supremacy of the Crown; it occurs in subsequent statutes, and Queen Elizabeth claimed to herself jurisdiction in a more effective manner as supreme Governor of the Church of England.

MUTUAL SURRENDER OF CRIMINALS (PRUSSIA) BILL [H.L.]
A Bill for giving Effect to a Convention between Her Majesty and The King of Prussia for the mutual Surrender of Criminals—Was presented by The Earl Russell; rend 1a*; to be printed; and to be read 2a on Monday next. (No. 204.)

NAVAL DISCIPLINE BILL [H.L.]
A Bill to make Provision for the Discipline of the Navy—Was presented by The Duke of Somerset; read 1 a to be printed; and to be read 2a on Tuesday next. (No. 205.)
House adjourned at a quarter before Eight o'clock, to Monday next, Twelve o'clock.