EPISCOPAL DISCRETION.
THE Clewer case is at last at an end, and the conclusion arrived at in the Court of Final Appeal is entirely con- sonant with common-sense. With the Judges of the Queen's Bench Division unanimous on one side, and the Lords Justices of Appeal unanimous on the other, it was not for the laity to have any opinion on the question until the House of Lords had spoken. Now, by a curious coincidence, four Law Lords have been found equally unanimous with the Judges of the Courts below. The Lord Chancellor, Lord Selborne, Lord Penzance, and Lord Blackburn are all alike of opinion that the judgment of the Queen's Bench Division was rightly re- versed by the Lords Justices of Appeal, and that in the Church Discipline Act the words "it shall be lawful" give the Bishop entire discretion to take or refuse to take proceedings against a Clerk charged with any offence against the laws ecclesiastical. They hold that where those words occur, the presumption is in favour of discretion, and that, in order -to overrule this presumption, there must be something in the context or in the general scope and objects of the Statute which makes it the duty of the person in whom the discretion is vested to use it in a particular way. " The cardinal error," said Lord Blackburn, " on which the judgment of the Court of Queen's Bench is based, is that of treating the words 'it shall be lawful' as ambiguous words, capable of bearing several mean- ings. The words are not ambiguous at all, and there is no public or private right conferred by the statute which requires that the power given to the Bishop should be exercised."
The result of this decision is, beyond doubt, very greatly to increase the powers and the responsibility of the Episcopate. Under the Public Worship Act, discretion whether they shall give or refuse their consent to proceedings being taken is expressly given to the Bishops. Under the Church Discipline Act, it is now given to them by judicial construction. Powers of this large and general kind are naturally exercised in the first instance with a good deal of diffidence, but when their existence is confirmed by successive judgments of the Court of Appeal and the House of Lords, the time when this diffidence is either graceful or useful may be regarded as past. It is now a settled point that the Bishops have an absolute discretion as regards proceedings under either of the two statutes which have of late been so frequently invoked. If, therefore, such pro- ceedings are injurious to the peace of the Church, if they bring neither certainty nor unity by way of make-weight for the loss of tranquillity, and if it rests entirely with the Bishops whether they shall be instituted, the Bishops will be to blame for whatever harm comes to the Church by reason of their being instituted. We frankly admit that this was not always our opinion. Before
the Clewer case had been decided, and when it was quite pos- sible that the words in the Church Discipline Act which appeared to confer discretion conferred none at all, it seemed reasonable to suppose that even the positive discretion con- ferred by the Public Worship Regulation Act might have been intended by Parliament to be exercised with some qualifica- tion,—that a Bishop, for example, might refuse to allow a case to be tried, while another in which the same points were raised was pending, or if the clergyman against whom the charges were brought had given way except in some unimportant particulars ; but that in the event of an undoubted and serious breach of the law having been committed he would be bound to allow the trial to go on. Now, the whole situation has changed. It has always been admitted that the Public Wor- ship Regulation Act gave a larger discretion than the Church Discipline Act. Indeed, it is to this difference that the Clewer case owes its existence. The prosecutors elected to proceed under the Church Discipline Act,because they felt they had no chance of succeeding under the Public Worship Regulation Act. Now, it is decided that under the Act which was sup- posed to be least favourable to Episcopal discretion, the Bishop has an absolute right to bar proceedings. His discretion is beyond challenge and beyond criticism. A fortiori, therefore, it is so under the Public Worship Regulation Act. The result of the two statutes, therefore, is that the Bishop of the diocese, not the Church Association, nor an aggrieved parishioner, nor any other person whatsoever, will be the real author of any future proceedings against the Ritualist Clergy. Under the one Act, the BiShop has authority to bar such proceedings without being obliged to give any reasons ; under the other, he has authority to bar such proceedings without any liability to be called to account for the reasons he gives. A Bishop who has such an authority, and refuses or omits to exercise it, is as much to blame for any evil consequences that may follow upon such refusal or omission as if he were himself the prosecutor.
There is another opinion which we have expressed with re- gard to Ecclesiastical prosecutions which is qualified by the final decision in the Clewer case. On the assumption that a dropping fire of ecclesiastical prosecutions might be kept up, whether the Bishops liked it or not, we thought that the more frequent these disturbances were, the better it would be for the Church of England. If no one had the power to prevent them, the one thing to be desired was that the public should as speedily as possible be disgusted with them. The more often they were set on foot, the sooner would this result be brought about, and by consequence, the Bishop who did most to facilitate and multiply prosecutions would be, in the end, the best benefactor the Church could have. On the assumption, however, that the Bishops have the power to make this dropping fire die out altogether, and to prevent it from being again opened, they become charged with a duty of a different kind. Instead of making things as bad as possible, in the hope that when they come to the worst they will mend, their business is to use the powers vested in them for preventing things from becoming bad.
It will not be pretended that prosecutions of Ritualist clergymen, as at present carried on, do good to any one, except the lawyers concerned in them. They do not help to decide the law, on the contrary, they help very much to un- settle it. The Final Court of Appeal in Ecclesiastical cases delivers a series of judgments minutely setting forth where a clergyman may not stand, what he must not wear, and what he must not allow to be sung. Upon all these points the law has been ascertained. As a matter of fact, indeed, it is broken in some particular or other in every church in the kingdom, but there is no doubt what the law of Anglican Ritual upon the points raised during recent controversies really is. Fresh prosecutions do not make this any clearer ; they only serve to show that familiarity with the law may breed contempt of it. What conceivable end can the Bishops suppose will be answered by making the law despised? Is it not plain that the present state of the Church of England calls for one of two remedies,—either that Ritualism be let alone, or that it be dealt with by fresh legislation ? In our judgment, the whole legislative attack upon Ritualism has been a blunder, directed to a wrong end and proceeding by wrong means. But it is not in the least necessary to take this view in order to see that, if the dignity of the Law is to be maintained, what is needed is that fresh laws should be made, not that the existing laws should be further expounded. They have been expounded until every one is tired of hearing about them. If anything more is wanting, it is some additional provision to ensure their being enforced. Under these circumstances, the duty of the Bishops seems to us perfectly clear. They must see, equally with other people, that these repeated Ritual prosecutions have become nothing more than a bad joke, but unlike other people, they have the power of putting an end to them for the future. If, therefore, they neglect to use this power, they will be directly instrumental in bringing the law into ridicule ; and this is not a part which the Episcopate has any business to play. An intimation that, in the present state of the law, the Bishops had come to the conclusion that it would not be expedient to authorise any more prosecutions under either Act would prevent a recurring scandal, and leave the Church Association to its true remedy,—an application to Parliament to arm it with a more effective weapon wherewith to put down its adversary.
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