TO THE EDITOR OF THE SPECTATOR.
Lincoln's Inn, 28th March 1850.
Sui—Your courtesy tempts me to trespass again. Illustrations arc dan- gerous things I find fault with your parallel between the Church and the Army ; and you retort upon me with respect to mercantile law, " that mer- chants, though they do not apply the law, declare what it is, and that the courts accept their declaration as final." This is, however, not quite ac- curate. Tice custom of merchants is received in evidence ; the judge deter- mines whether it is to be binding. He generally recognizes it as binding in cases in which it does not conflict with unwritten law, and in some few in which it does ; these, however, are but few; and custom is never allowed to contravene or alter written law, or to expound it if expressed in plain English. If the rules of the Stook Exchange were in writing and sanctioned by competent authority, the courts would themselves interpret their mean- ing; or, if they admitted custom to assist in their interpretation, it would only be on the ground of long usage,—a ground on which the Privy Council, perhaps too laxly, admitted certain evidence, to which you, Sir, perhaps with greater technical accuracy, take an objection.
Now, Sir, what is the question in Gorham's case .? Competent authority has reduced the essential doctrines of the Church into certain formulae, and requires its members to assent to the doctrines so expressed. It is therefore a fair assumption, that any proposition may be held by a member of the Church which is not logisly excluded by these formulae. Mr. Gorham as- sents to these formulae, but also asserts his belief in a proposition which the Bishop alleges to be inconsistent with them. The t for the Privy Coun-
cil is, whether there is any such inconsistency. proposition A stand with proposition B ? Does the language of the one exclude the other ? This is the point on which they. decide ; not, be it observed, upon the truth or general bearing of a doctrine, but simply on the meaning of the expressions of the Church on the subject. They decide upon it just as they would de- cide upon the intention of a testator contained m the expressions of his will. What is there in this which laymen are incapable of doing ? In deciding what the doctrine Of a Church is to be, the legislative power has to consider the truth or falsehood and the moral and general bearing of the opinion it adopts ; which is a task for other than more lawyers : but when a doctrine has been adopted and embodied in formal propositions, it becomes, so far as it can be used as a test, a matter of dry intellect ; and the question in the case of a man accused of heresy is, whether his opinions are logically consistent with it,—a question which may be just as well decided by persons who do not believe in the existence of any fact represented by it, as by persons who do. Tests of opinion may be extremely foolish things ; but if they are to exist, for Heaven's sake let them be embocliedin iitten forms, and applied by lawyers who will construe them judicially, and not by clergy- men who will import their own views into every case, and who think it wrong to treat such matters otherwise than with strong party feeling.
I confess I was astonished by your observation, that lawyers are incompe- tent to understand the retnements of theology. Want of subtilty is an im- putation they seldom incur ; and I submit with confidence, that men who are habitually acquainted with the mysteries of pleading, or the air-built system of springing uses, are as competent as any other existing class to thread the mazes of scholastic divinity, and to recognize subtile distinctions in subjects which are to be learnt, not by experience, but by intellectual ap- plication. Why, Sir, Vice-Chancellor Knight Bruce would triumph in tracing specific differences between subdivisions of Semi-Arianian, and Baron Parke would, if it be possible, make the distinctions intelligible.
I have purposely abstained from alluding to rights of property, since they only affect the mode of raising the question and not the question itself : but I would ask, whether, when rights of property raise similar questions, as they often do, in other religious bodies, each of such bodies is to have a se- parate tribunal composed of members of its own persuasion ? On the more important question, whether the Church should have legis- lative power, I am disposed to agree with you ; assuming that there is a large proportion of laymen in her counsels, and that the State has a distinct voice in them. Moreover, though conscious that the Church has always existed by compromise, I agree with you in thinking her present condition most unsatisfactory. Exclusion, repression of thought, cowardice, and hy- pocrisy, are the results. But a cautious man may be pardoned for hesitating on the brink of a movement which must lead either to reconstruction of the National Church upon some other basis than that of doctrine, or to a total demolition of that time-honoured and deep-rooted social fabric. F.
[Our correspondent would be a "tough customer" if we desired to measure swords with him in a controversial struggle ; which we must decline. He admits the whole of our argument, though he qualifies it with a "perhaps," in saying that the Judicial Committee received evidence laxly. A profes- sional witness is judge, within his province, of the matters proper to form the data for the evidence demanded of him on a particular point; the lawyer's duty is, to see that the evidence is from an authentic source, and then that it is properly applied. Only ecclesiastics can tell what are the authoritative doctrines of their church ; the lawyer may apply the law re- specting the doctrine thus identified. We do not question the ratiocinative subtilty or activity of the legal mind, or its faculty for sporting with theologi- cal exercitations ; but, holding much that forms the matter of religious belief and doctrine to be beyond the scope of mere intellectual manipulation, we apprehend that the ultra-ratiocinative or ultra-intellectual nature of legal studies tends to disqualifs, the lawyer from the congenial handling of re- ligious doctrine. In his main conclusions our correspondent does not widely dissent from our own.—En.]
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