THE LEGAL EFFECT OF THE NEW SUBSCRIPTION.
IT was with real pleasure that we read the remarks recently made by the Archbishop of York upon the new Subscrip- tion Act and the general position of the clergy. When we find that a prelate, holding such a distinguished post in the Church as that filled by Dr. Thomson, considers that it is better to trust to the good faith of the clergy in matters of opinion rather than to resort to the sentences of ecclesiastical tribunals, we realize more than ever that the days of religious State trials are drawing to a close. In the face of such an admission we can almost reconcile ourselves to the presence of the clerical element in the Court of Final Appeal, and can for- give his Grace for the course which he adopted as one of the minority of judges in the case of the Essayists. It is only to be regretted that these sensible opinions were not announced before the report of the late Subscription Commission was drawn up. We might in that case have been able to con- gratulate the Church and the country on the embodiment in an Aet of Parliament of the comprehensive suggestion of Dean Milman But if we must "rest and be thankful" for the in- stalment of Church reform gained by the passing of the new Subscription Act, it is a great thing to find the Archbishop accepting so loyally the spirit of the measure. We had feared that there was only too much truth in the rumours that the Bishops' chaplains generally had received instructions to be more than ordinarily vigilant, not only in " driving away all erroneous and strange doctrine contrary to God's word," but in preventing the entrance into the Church of any free opinion whatever upon those points which the highest ecclesiastical tribunal has declared to be " open." The Archbishop's charge reassures us. He admits that the new Act was passed to
relieve consciences. He thinks, although he does not define in what respects, that it will have a more extended operation than is generally supposed. We quite concur with him in this view, and will now point out some particulars as to its effect.
It is most important to remember that the new Subscription Act leaves the Articles of Religion absolutely untouched. Every clergyman must still wear the old fetters, although, as we shall see, without so deep a sense of bondage. The strength of the old chains, however, had been tested on several occasions before the passing of the recent Act. High Church,
Low Church, and Broad. Church in turn had appealed unto Omar for an interpretation of the language of their obligation.
The decisions of the Judicial Committee of the Privy Council in the cases of Mr. Gorham, and Dr. Williams, and Mr.
Wilson are too well known to require notice here. Baptismal regeneration, the inspiration of the Scriptures, and the mysterious doctrine of eternal punishment were declared to be to a certain extent open questions. A simple principle of interpretation was established, to be applied in every case of a charge brought against a clergyman of having contravened the Articles. This principle was thus expressed in the Gorham case :—" This Court has no jurisdiction or authority to settle matters of faith, or to determine what ought in any particular to be the doctrine of the Church of England. Its duty extends only to the consideration of that which is by law established to be the doctrine of the Church of England, upon the true and legal construction of her Articles and formularies."
The application of the rule on each occasion gave rise to much controversy. It was loudly asserted that there was a common law of the Church underlying the Articles and formularies, an unwritten mass of Catholic doctrine which was not expressed, either because it had not, at the time of the framing of the Articles, become matter of controversy, or else because it was necessarily implied in the language actually used. It was further objected that the Court of Final Appeal, from ignorance of that which men of sound theological learn- ing and orthodox theological opinions knew to be the import of the words, had dealt with the laws of the Church in the spirit in which English criminal lawyers deal with a penal statute, more careful that the accused should have the benefit of a doubt than that the Church should be protected from the taint of heresy. The storm of opinion on each occasion raged for a time, and then subsided. The Archbishop's pre- sent attitude is the best proof how nearly the strong constitu- tion of the Church has recovered the last shock, which cer- tainly was the most severe of all.
Such, then, was the position of the law of clerical obligation at the time when the new Act was passed. There was a liberal con- struction put upon the Articles, but a certain under-current of dissatisfaction at the decisions of the Church tribunal ; both Houses of Convocation expressly condemning the opinions which the law had by its latest decision pronounced harmless. Scarcely an opportune time, one would have supposed, for a change in the subscription ! It might have been expected that at such a period, if any change were made, it would have been in the direction of binding rather than loosening the bonds of the clergy, or at any rate that a resolute front would have been shown by the leaders of opinion in the Church in favour of the preservation of the old regime. The opponents of a liberal construction might have hoped that when the longed- for new Tribunal of Final Appeal should be created, in which the voice of the Church, as represented in Convocation, would be heard, it would consider itself free to disregard the decisions of the lay tribunals, and would establish a new mode of in- terpretation of the Articles more in harmony with the feelings, if not the opinions, of the clergy at large ; and that the duty of following the solemn decisions of their predecessors, so strong in the legal mind, which recognizes the force of pre- cedent even in the highest Court in the land, would not be felt by the new council in expounding the common law of the Church. But nothing of the kind took place, A change was made—a change in the direction of relaxation, and not of restraint. It was effected by the authority of Parliament, and was afterwards confirmed by Convocation. The extent to which Church and State thus pledged themselves legally and morally becomes a question of the utmost im- portance. Even if the old terms of subscription had been simply re-affirmed, a great step would have been taken. It is one of the soundest and best established legal rules of construction, that if once an Act of Parliament or any other document has received an interpretation by the decisions of a court of competent jurisdiction, and the same language is re- enacted or again used, that is a conclusive recognition of the interpretation which has so been put upon it. This is in accordance with the plainest dictates of common sense. If the true intent of a contract between two merchants has been the subject of dispute and of adjudication, and they after- wards use exactly the same language in a new contract, it ought of course to be held that they used it designedly, in the sense which had been judicially affixed to the docu- ment, and that they adhered to the precise words in order to have the benefit of legal certainty. The form of policies of assurance now universally adopted is a familiar example. So if a clause in an Act of Parliament has been judicially construed, however much doubt may have previously existed, or however much difference of opinion may still continue to exist. as to the soundness of the construction, if that clause be re-en- acted ipsissiniis verbis in a Consolidation or any other statute, it is considered that the Legislature uses the words in the sense judicially attributed to them, and because that sense has been so affixed. What before had only the force of judicial decision thus acquires the weight of positive law. If, then, Parliament and Convocation, being aware of the liberal interpretation put by the Judicial Committee of the Privy Council upon the clerical subscription as it stood, and also of the controversies to which this had given rise, had re-enacted and confirmed the old form of subscription without any qualification, the interpretation would have been so indelibly stamped upon the subscription that the courts of justice and the Church would have been
bound to recognize it to the fullest extent. But this duty would be greatly increased, if instead of the new enactment being in the same words as that which preceded it, an alteration were made with the express in- tention of relieving the consciences of the subscribers.
Yet such has been the course followed in framing the new subscription. The letter of the obligation has been altered in the spirit of relaxation. Parliament has sanctioned and both Houses of Convocation have confirmed the alteration. The old subscription was fixed by the 86th Canon, the 3rd Article of which provided that every clergyman must " allow " the Book of Articles and Religion, and acknowledge " all and every the Articles therein contained, being in number nine and thirty, besides " (that is to say, with deference to Mr. Goschen, not counting) " the ratification, to be agreeable to the word of God." By the new Act he is required to " assent " to the Articles, the Book of Common Prayer, and of the ordering of priests and deacons, and to believe the doctrine therein set forth to be agreeable to the word of God. We will not now pause to discuss the comparative force of the words " allow " and " assent." We are willing to admit that, according to modern usage, less is implied by the use of the latter than the former. But in the omission of the words " all and every," and the insertion of the word " doctrine " in the singular, we recognize an important change. It is to these little words " all and every " that we owe the rise of what may be called the feeling of caste in the National Church. They created the mischievous impression that an honest clergyman must believe something more than was expected from an honest layman. They denied to the priest that inestimable privilege possessed by every lay Churchman—without which our Church mustlong since have been divided into a number of narrow, bitter sections—of faithfully accepting the doctrine and discipline of the Church, her creeds and the spirit of her liturgy, and at the same time reserving an opinion upon doctrinal conclusions, some of which are preserved in the Articles, like the armour of the Black Prince in Canterbury Cathedral, as records of a conflict in bygone times. Henceforward he who sympathizes in the main with the doctrine and polity of the Church will be able to assume the garb of a priest, without that secret feeling of having kept something back which, perhaps more than the temptations of more lucrative worldly advantages, has in this age of free discussion turned so many of our best University scholars away from ordination. A Church without a creed would be, to use Dr. Newman's expres- sion, a place of confusion," if it did not prove " a house of bondage." We do not, however, need to exact from a clergyman as strict an oath of allegiance as if he were swearing an affidavit. It is right that in a court of justice a wit- ness should be exhorted to speak not merely the truth, but " the whole truth, and nothing but the truth." But the form of the new subscription properly reminds us that if the Church is to be a living voice we must be content to accept the hearty submission of the clergy to her doctrine generally, and must not paralyze their moral power by the adoption of too severe a code of faith or devotion.
Whether the true effect will be given to the amended sub- scriptions depends entirely upon the conduct of the Bishops. Our Church polity gives them an absolute power of opening or closing the doors of the Church to candi- dates for ordination. If they act with that good faith which we are justified in expecting from them after the sanc- tion given by Convocation to the change, we believe that a fresh and more desirable supply of candidates for holy orders will be produced. The insufficient requirements prior to ordi- nation in some of our northern dioceses have recently placed those dioceses under a cloud. Is it too much to ask the Arch- bishop of York to give effect to his views as to the breadth of the recent Act, by suggesting to the bishops of his province the policy of restoring their prestige by avowing their adoption of a new and better method of reviving learning in the Church ?
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