LORDS PENZANCE AND COLERIDGE ON ECCLE- SIASTICAL JUDICATURE.
TF Lord Penzance had been particularly anxious to reconcile High Churchmen and Ritualists to legislation on the lines of the Report of the Ecclesiastical Courts Commission, he could not have devised a more effectual method of achieving his purpose than that which he has adopted, presumably from an opposite motive. He has declined to put his name to the Report of the other Commissioners, and has published a separate Report of his own, in which he criticises and con- demns the main features of the Report signed by all his .colleagues. It is not altogether, though it is partly, his own fault that his career as an Ecclesiastical Judge has been a .singularly unsuccessful one. The Act to which he owes his existence in that capacity was the offspring of an unreasoning panic, and came into the world with a tainted character. It was passed avowedly "to put down Ritualism,"—that is, not for the sake of doing justice, but in order to make justice sub- servient to prejudice and passion. This initial taint might have been somewhat neutralised, if the two Primates had appointed as the first Judge under the Public Worship Regulation Act a man who had some knowledge of ecclesiastical history and law, and some rudimentary acquaintance with theology. But the man selected, however estimable in other respects, was absolutely without any training or special qualification for his office. That was sufficiently unfortunate. But the two Primates showed their ignorance of human nature still further, by selecting from the category of unsuitable persons the one man whose judicial experience was certain to make his appoint- ment most distasteful to the Clergy. The Divorce Act, whether justifiably or unjustifiably, has been particularly obnoxious to the Clergy. It was, therefore, a singular want of judg- ment on the part of the two Archbishops to nominate an ex- Judge of the Divorce Court as the regulator of the doctrine, ritual, and discipline of the Church of England. And the malign influence which tainted the birth of the Public Worship Regulation Act and presided over the selec- tion of its first Judge has pursued Lord Penzance all through his career as Dean of the Arches. He refused to qualify for his office in the usual way, preferring to derive his authority as an Ecclesiastical Judge from an entirely secular source. Partly, therefore, from this osten- tatious parade of Erastianism, and partly from causes beyond his control, Lord Penzance started as Dean of the Arches with a disputed title and a general want of confidence on the part of the large majority of Churchmen. The Act from which he drew his title was, moreover, so badly drawn, or he was so careless in administering it, that several of his earlier judg- ments were upset on appeal to the secular Courts. Irritated by these misadventures, he was so ill-advised as to sneer publicly at the Court of Queen's Bench for its ignorance of ecclesiastical law. Chief Justice Cockburn retaliated in an exceedingly caustic pamphlet, in which he made himself merry at Lord Penzance's claim to ecclesiastical erudition. That Lord Penzance should, under these circumstances, stand out against the recommendations of his colleagues on the Ecclesiastical Courts Commission, is very likely to make the Ritualists, and indeed Churchmen in general, more favourably disposed than they would otherwise have been to accept tribunals based on those recommendations. There will be an antecedent bias in favour of Courts to which Lord Penzance is opposed ; nor will the reasons by which he supports his opposition diminish the prejudice to which any proposals coming from him will be exposed. Indeed, nothing proves more plainly his disqualification for the office of an ecclesiastical Judge than those reasons. After quoting various authorities, whom he strangely misunderstands, he says :—" I come, therefore, to the conclusion that there is no warrant to be found in the legal or Constitutional history of this country for the proposition that there have existed at any time since the Conquest, or indeed before it, Spiritual Courts deriving their original authority from the Church, independent of the Sovereign or the State ; and that the authority for the existing Ecclesiastical Courts did, on the contrary, emanate directly from the Crown." The historical accuracy of this proposition is more than questionable. The true state of the case is put succinctly as follows, in the body of the Report from which Lord Penzance dissents :—" The origin and nature of the relations between the ecclesiastical and civil powers in the Christian Church had assumed a definite form before the Church of England was founded, and was a part of the common inheritance of Christian civilisation which was introduced at the conversion of the English. It is sufficient to note that in the historical growth of ecclesiastical judicature in national Churches three principles are involved :—(1), The existence of an ecclesiasti- cal law anterior to the national law ; (2), the acceptance by the nation of that law, so far as it is of general obligation, as the law of religion of the National Church ; and (3), the annexation by the nation to the sentences of the law so accepted, under varying limitations, of the coercive power by which alone the sentences can be enforced upon the unwill- ing." Certainly, Lord Penzance must have an extraordinary confidence in himself, when he ventures to oppose his own crudely formed opinion to a statement which is not only obvious to every historical student, but which is, in this case, authenticated by authorities like Dr. Stubbs, Mr. Freeman, Lord Blachford, Sir Robert Phillimore, and Lord Coleridge, as well as by the standing counsel for the English Church Union and the Church Association. Lord Penzance's whole argu- mentation is vitiated by the fundamental fallacy that the Church is a mere department of Civil Government, like the Army or Navy. If we are to have our ecclesiastical judicature re- modelled, we ought to face the facts fairly. And the fact is that the Church, historically considered, is a society claiming an origin apart from and independent of the civil power; with a code of doctrines, therefore, and with laws which are anterior to the laws of any civil government with which the Church, as locally distributed, chances to enter into relations. It carries its original charter with it into any compact which it may make with the civil power. But the Church has no coercive jurisdiction. It cannot enforce its own laws on its recalcitrant members. The consequence is that when the civil power con- sents to enforce the laws of the Church, it rightly claims to ascertain for itself that this enforcement does not violate any civil right. The right of the Churchman, as a citizen, is, for example, invaded, if the ecclesiastical tribunal has departed from its own recognised laws and procedure, and in such a case the civil power is justified in refusing to give force to the ecclesiastical sentence, and in sending the case back to the ecclesiastical authorities for reconsideration. But this does not prove that the Church has no original jurisdiction of her own, but derives it all from the State. Mr. Gladstone is sustained by the clearest Constitutional authority in asserting, in his masterly Essay on the Royal Supremacy, that the statute law of England "contains no trace of such a meaning as that the Crown either originally was the source and spring of ecclesiastical jurisdiction, or was to become such in virtue of the annexation to it of the powers of" the Reformation statutes. This view is amply borne out by the mass of evid- ence collected by the Ecclesiastical Courts Commission. There is, of coarse, a sense in which all jurisdiction flows from the Crown,—the sense, namely, in which it is explained in the grand preamble of the statute of 1532. There the body politic is described as consisting of two spheres, the "Spiritually and Temporally." "When any cause of the law divine happened to come in question, or of spiritual learning,
then it was declared, interpreted, and showed by that part of the body politic called the Spiritualty, now being usually called the English Church." The Sove- reign's jurisdiction consists in seeing that justice is done in both the temporal and spiritual spheres, in accord- ance with their respective laws. The laws of the temporal body are derived from the Temporalty. Those of the spirit- ual from the Spiritualty. The essential difference between the two jurisdictions is marked on our Constitution in a number of ways. Thus the Sovereign summons and prorogues Parlia- ment. The Primate summons and prorogues Convocation. The Crown gives "leave" to Convocation to " decree " canons. It gives " power " to Parliament to make laws. It "enacts" statutes ; " ratifies " ecclesiastical canons. Civil statutes have no existence till they receive the Royal assent. Ecclesiastical canons do not owe their being, only their secular force, to the Crown.
These are rudimentary distinctions to the ecclesiastical lawyer. Lord Penzance's Report shows that his mind is in a state of baptismal innocence respecting them. Moreover, he argues as if the Parliament of to-day were identical with the Parliament of Norman and Tudor times. What can be more fallacious or more absurd than to apply to our circumstances the practices of a time when none but Churchmen could sit in Parliament, and when the numerical majority of what was then the more powerful of the two Houses of Parliament con- sisted of Bishops and Abbots?
But much as we differ from Lord Penzance in his argu- ments and statement of facts, we have no fault to find with him on grounds of good-feeling and taste. We regret to add that we cannot say as much of the inflammatory protest of Lord Coleridge against the veto which the large majority of the Commissioners propose to give the Bishops on the initia- tion of a snit. He thinks this veto "has been abused." He ought to have substantiated so grave an accusation. Does he refer to the veto of the Bishop of Oxford, in the case of Mr. Carter ? If he does, he will find hardly any one, who is not a member of the Church Association, to agree with him. "The right, as now claimed," he says, "covers ritual excess, 'whereby, in spite and defiance of the law, a repugnant con- gregation may be compelled to assist at a ceremonial which they think symbolises an abject and mischievous superstition." This kind of Exeter-Hall claptrap, coming from the Chief Justice of England, is deplorable. If respect for ecclesiastical decisions is to be restored among the Clergy, a beginning ought surely to be made by an observance of judicial propriety. Suppose Lord Coleridge should be nomi- nated one of the new Judges of the Final Court of Appeal, how can he expect a large section of the Clergy to have any con- fidence in him, after this outburst of partisanship ? And the offence is all the more glaring if, as the ecclesiastical papers declare, Lord Coleridge is himself an habitual worshipper in a church where this "abject superstition" is practised. The deadliest enemies of law and order are eminent Judges who give substantial grounds for suspecting, however unjustly, that they aim more at popularity than at justice. Lord Coleridge does not specify any "repugnant congsegation " which has been "com- pelled to assist at an abject and mischievous superstition"
through the Episcopal veto, and we think that he ought not to have thrown out such an accusation against the Episcopal
Bench without substantiating it. So far as we know, the Episcopal veto has never been used without the great body of rational public opinion behind it. And, as a rule, the Bishops are far too timid to act without clear evidence of hearty lay support.
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