THE ROYAL COMMISSION ON ECCLESIASTICAL COURTS.
IN the Gazette of Tuesday all who care to do so may read the names of the Royal Commissioners appointed to " inquire into the constitution and working of the Ecclesiastical Courts, as created or modified under the Reformation Statutes of the 24th and 25th years of King Henry VIII., and any subsequent Act." As the eye passes over the long list, begin- ning with " Our Right trusty and Right entirely-beloved Councillor Archibald Campbell, Archbishop of Canterbury," and ending with " Our trusty and well-beloved Samuel Whit- bread, Esq.," it is difficult not to wonder whether one single member of the Commission imagines that anything will come of its deliberations. Perhaps, those who have the clearest convictions upon this point are those who had most to do with the Commission's being granted. The imprisonment of certain clergymen had created. a general feeling that some- thing ought to be done, and as the authorities in Church and State were not prepared to do what was really wanted, they were naturally anxious to do something else. When a remedy has to be discovered, the first step towards making the search successful is to be quite clear about the disease. There is a sense, no doubt, in which it is true that the grievance of the Ritualists has to do with the constitution of the Ecclesiastical Courts, inasmuch as they now refuse to recognise the juris- diction either of Lord Penzance's Court, whatever it is to be called, or of the Judicial Committee of the Privy Council. It is permissible, however, to suspect that this disillusionment as to the authority of the Courts, was mainly due to a pre- vious disillusionment as to the use the Courts would make of their authority. If the Judicial Committee had held sound views upon the interpretation of the Ornaments Rubric, the invasion of the province of the Church by a secular tri- bunal would have been tolerated, if not welcomed. It was the evil working of the Court, in fact, which opened the eyes of the Ritualist party to the vices of its constitution. It is natural enough that men should accept a Court so long as they expect its decision to be in their favour, and repudiate it BO soon as they have ascertained that it is against them. It is possible, of course, that the Commissioners will assume that they have a right to make recommendations bearing upon the particular judgments which have made so much noise. Such a conclusion can only be arrived at by considerable straining of the terms of the Commission, but if the Commissioners like to strain them, we do not know that any one will complain. Unless they are prepared to go this length, and make some suggestion by which the judgment in the Ridsdale case shall no longer be held to be law, they may as well not trouble themselves to sit. The Commissioners might recommend, and Parliament Might sanction, any kind of Court that can be named ; but if this Court is to start from the status quo and take the judg- ments of its predecessor for granted, the root of the Ritualist grievance will not be touched. As it is, Ritualism is virtually forbidden by law, and what the Ritualists ask is that this pro- hibition should be rescinded. No change in the constitution of the Ecclesiastical Courts can do this, if it stops short at their constitution. If the recommendations of the Com- mission are to be of any avail, they must not shrink from creating a Court favourable to the straightforward interpretation Of the Ornaments Rubric, and providing that the next case which the Church Association selects for prosecution shall be heard as though it were a case of First Instance. It is hardly to be expected that any Royal Commission should go this length, and still less that its authors should have looked forward to its going this length. It seems fair to say therefore that those who had most to do with the Commission's being granted are the least hopeful as to its results.
We do not doubt, however, that to whatever the dislike of the Ecclesiastical Courts may be due, that dislike does now exist among a large body of the Clergy, including many who can in no sense be called Ritualists. Further than this, it may be admitted that if this dislike could be removed, a great stumbling-block to the harmonious relations of Church and State would be removed at the same time. A well-grounded confidence in the authority and fairness of the tribunals which administer the law is of immense importance to the well-being of society ; and where the jurisdiction of a Court deals only with a particular class, it is very desirable that this particular class should feel this confidence. We should be sorry if even housebreakers did not believe that they would have justice done them at the Bar. Now, upon these two points,—abthority and fairness, a large number of the Clergy feel very:dissatisfied with the present tribunals. They object to them because they are Lay Courts claiming jurisdiction in spiritual things, and because the Judges who compose them are suspected of having something else in view than the bare law which they have to declare. As regards the first point, the case seems to us altogether beyond remedy. So long as the Church of England remains Established, the supreme authority within it must be the Crown, and the jurisdiction of the Court of Final Appeal in Ecclesiastical Cases must be derived from the Crown. We do not mean, of course, that this state of things is inseparably associated with an Established Church. In countries in which the Established Church is Roman Catholic, the ultimate authority is the Pope, and the Court of Final Appeal in Ecclesiastical
Cases derives its jurisdiction from the Pope. So, too, it is quite conceivable that the Church of England might remain Established, and yet the Archbishop of Canterbury or the whole Episcopate he recognised as exercising supreme authority within it, and the Court of Final Appeal in Ecclesiastical Cases be held to derive its jurisdiction from him or them, and not from the Crown. When we say that so long as the Church of England remains Established the supreme authority within it must be the Crown, and that the Court of Final Appeal in Ecclesiastical Cases must derive its jurisdiction from the Crown, we mean that it is altogether inconceivable that Parliament should sanction any other arrangement,—that it should at the same time maintain the Church as by law Esta- blished, and make the Court of Appeal in Ecclesiastical Cases isadependent of the Crown. As regards the second point, it Might he possible to make the Court one which should decide the cases brought before it without any reference to con- siderations of public policy, though even this might be more difficult to secure, as it is less often secured, than is ordinarily supposed. But even a Court acting on the nar- rowest. interpretation of the law may give an unexpected de- cision ; and notwithstanding all that has been said to the con- trary by indignant Ritualists, the authority and purpose of the Ornaments Rubric do not seem to us so unmistakable as to make it impossible for the Ridsdale judgment to be affirmed, even by the most pedantic lawyers that ever put aside the world they
are living in, in order to place themselves more completely in a world that has passed away.
We frankly confess, therefore, that the appointment of a Royal Commission to inquire into the constitution and working of the Ecclesiastical Courts, seems to us unfortunate. It will tend to divert attention from that legislation which alone can settle the Ritualist controversy, to antiquarian inquiries which, however interesting they may be to legal historians, have little or nothing to do with present questions. Given, however, that a Commission was to be appointed, no exception can be taken to the persons of whom it is composed. The two Archbishops are, of course, members ex officio, and their lean- ing towards the Low-Church side of the controversy is cor- rected by the High-Chureh tendencies of the three other Episcopal members,---the Bishops of Winchester, Oxford, and Truro. Lord Penzance is there to defend the jurisdiction of his Court, and to excuse the blunders which have characterised his own administration of it. Lord Coleridge is Lord Chief Justice, and so is naturally a member of a Legal Commission. Sir Robert Phillimore contributes his long experience as an Ecclesiastical Judge, while Mr. Charles and Mr. Jeune repre- sent the youngest and most fighting stage of ecclesiastical advocacy, and Dr. Deane maintains the traditions of Doctors' Commons. Professor Stubbs and Mr. Freeman are the fore- most names among our living historians. Lord Chichester and Lord Devon, Sir Richard Cross and Mr. Whitbread, represent lay common-sense. The Deans of Durham and Peterborough balance one another as regards the solution which they wish so see applied to the Ritualistic problem. Lord Bath, Lord Blachford, and Sir W. James have probably been nominated by reason of their individual interest in the welfare of the Church of England, as well as their known ability. A report framed by such a body is sure to be interesting and exhaustive. We wish that we could think that it would be of the slightest
practical value. •
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