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Government. For a short time the Judicial Committee, that great stumbling-block of so many Churchmen, ceased to be the Court of Ecclesiastical Appeal, by the present Lord Chancellor's Judicature Bill of 1873, though it was accidentally revived after three years by that measure, otherwise most admirable, which restored the appellate jurisdiction of the House of Lords. So the Judicial Committee can now claim in its ecclesiastical aspect a continuous authority of no more than seven years, while its condemnation involved in the suggestions of the present Report relieves me from the necessity of explaining why it is that the constitution of that body unfits it for ecclesiastical functions. That which makes its actual judiciary system the disturbing element in the Church's otherwise prosperous progress is summed up in one word. It is an anachronism. Part of the system is too old, and part of it is too new; the old part much the worse for wear, the new so flimsy as not to have stood a very short term of wearing, and neither dovetailing into the other.
The reason of this exception to the increasing and elastic adaptability of the Church's resources to the wants of the day is not far to seek. The slumber of the Church in the days of our fathers and grandfathers procured peaceful times for the old ecclesiastical judicature, presented as it was in its best aspects by judges such as Lord Stowell. At last came the era of general effervescence and inevitable reform, and in this instance it came just a little too soon.
The creation of the Judicial Committee of the Privy Council as a body to fulfil the incongruous functions of Supreme Court of Appeal from India and the Colonies, and to take over the appellate jurisdiction, in Admiralty and ecclesiastical causes, of the Reformational Court of Delegates, was due to the erratic genius of Lord Brougham, and was brought into shape by him, while Chancellor, in two Acts of 1832 and 1833. It is said, on Lord Brougham's own authority, that the inclusion of ecclesiastical cases, which was an afterthought, was due to accident; but it would probably be more strictly accurate to say that it came of carelessness and the inability of grasping that 'the march of intellect' would in the coming time bestir itself about such matters. Those years 1832 and 1833 are memorable as the date of the rise of the great revival in the Church itself, which is now perforce admitted as a fact by those who dislike it most. So a change, which ought to have followed and taken colour from the revival, perversely fell upon days when the instinct of ecclesiastical wants and the knowledge of ecclesiastical law were at the lowest among our lawmakers. This meddling only affected the then very rare phenomena of second] appeals, below which the old courts of the Bishop and the Archbishop still existed in much decrepitude. In no long time, however, these courts were supplemented by the cumbrous and expensive, though well-meaning, proceedings created by the Church Discipline Act. That Act was passed in 1840 at a twilight
era, when public men had just learned enough to see dimly that the state ecclesiastical was, and was feeling itself to be, out of joint, but could not yet realise what they wanted nor how to keep clear of the pitfalls that lay in the road which they chose for themselves.
The final act of this comedy or tragedy of ambitious mismanagement was the Public Worship Regulation Act of 1874, the fruit of panic at the manifestation of a wide outburst of miscellaneous activity in the Church-wise, healthful, and salutary in some things, unwise and fantastical in others, and all lumped together under the name 'Ritualism.' This measure, which began so badly, resulted in creating the judicature of partisanship-an enactment which, in professing to deal indulgently with ritual irregularities, really left them under a harsher régime than moral offences; while the spiritual democracy, organised as the Church Association, to whose existence and powers of mischief the authors of the Act had perversely shut their eyes, made themselves masters of its machinery. However, there still existed, decrepit, as I have said, and much disfigured, and in ceremonial cases reduced to do the will of the Public Worship Act, the ancient and legitimate jurisdiction of the Church-the Episcopal and Archiepiscopal Courts. But what had happened during the last half-century affecting the quality of the men who composed them? Their jurisdiction and the profession which furnished their judges and advocates materially subsisted upon the possession of attributes some of which had better never have been saddled on the back of the Church. On the matrimonial jurisdiction I do not speak, for it has emphatically its ecclesiastical, its very ecclesiastical, side. No excuse, however, could be found for continuing to burden the Courts Christian' with their testamentary jurisdiction. They were well rid of this millstone; but when Parliament had taken away this attribute, it had abolished most of the material inducements for men who had to work to live any longer to keep up the profession of the civilian and canonist. Yet the Ecclesiastical Courts were still there, reduced to atrophy, although the suits requiring special knowledge of the ecclesiastical law have been more numerous, more difficult, and more fierce than at any other date since the Reformation. Still no formal sentence has been passed upon the whole profession, while its formal existence may actually work as a deterrent from the independent study of canon law. Shorn though it be of its privileges, the name still exists, the shadow of its real self, but capable of a useful revival, just as the Report shows, in proposing to set up again the diocesan and provincial tribunals; and the most unfortunate and incomprehensible omission of the Report is that of any reference to the actual present and possible future of the profession of the ecclesiastical law. scheme of courts, however ideally perfect, would be a failure if presided over and pleaded in by men ignorant of the law with which
they were professing to deal; and yet, so far as the Report goes, this is how it leaves the question. The oversight is more remarkable in proportion to the knowledge of those who drew the Report; for, if there is one man in England who knows better than another the difference between canon law and common law, it is Canon Stubbs. Still this is a fault of omission, and does not taint the spirit of the positive recommendations. It is in order to work them that I have emphatically to insist upon the revival in deed, and not merely in name, of the canon law as a living study, and of the canonist as a recognised and active profession. He has survived, and still exists in a fragmentary shape at our universities. Oxford, since Henry the Eighth forbade the study of canon law, only confers the degree of Doctor of Civil Law-D.C.L. But in practice graduates of this degree have been accepted as 'canonists' in the defunct fraternity of Doctors' Commons. But Cambridge has kept up, though under a veil, the degree in canon law. It may be merely nominally, but names are sometimes fructifying germs of realities. This university confers the degree of LL.D., though perhaps few people reflect what the reduplication of the L means: it is simply the plural abbreviation for Legum Doctor-Doctor of Laws-or, as it is expressed in some foreign universities, J.U.D.'- Juris Utriusque Doctor,' or Doctor of Canon and Civil Law. Is it past anticipation that the Universities of Oxford and Cambridge, in their unwearied search after multitudinous professorships, might possibly be induced to look at home and restore the much-desired study of ecclesiastical law? But then, objectors will ask, who will study on the principle of measuring the value of studies by what they are likely to bring back? That may be a plausible objection, but really it does not hold water. The active professions available for men of culture are choked, and scholars with active minds are hungering and thirsting for fresh openings, be they as narrow as the eye of a needle. The smallest ray of light will guide a man of energy and patience to force his way through and create the new profession in which, as pioneer, he may be the most prosperous. Where does the canon law stand on the mappa mundi of human learning? It stands somewhere in the neighbourhood of dogmatic theology, international law, local law, and ritual regulation-all of them flourishing studies of the day. The studies which I have named indicate fields of investigation upon which there are many people, both clergymen and laymen, who have for these late years entered with exceptional enthusiasm and industry. Everyone who has written systematically on the Councils of the Church, on the dogmas of the universal Church, or of the Church of England as compared with those of the Church Catholic; everyone who has dealt with the conflict of laws, or who has entered into the popular ritual and ceremonial controversy; every squire or literary man living on his own resources, of whom there are so many, interested
in Church questions, and also endowed with legal tastes which he can only gratify at petty and quarter sessions and in the grand jury, is in virtue of his studies or his pursuits a budding and incomplete canonist. It will not be so difficult to concentrate this varied mass of material, more abundantly, perhaps, diffused than at any previous period, and turn the man of ecclesiastical learning into the man learned in ecclesiastical law. His exclusive work will no longer be with books and theories, but with the material interests of fellow-men, who lean on his advocacy or his decision; for with the responsibility the training will come.
The temptation to embark on this revived career will not be weak, although the anticipated remuneration may be but moderate, if it carries with itself an assured position, respect and fame. I seek my recruits among the large class of men of so-called learned leisure who are willing, for fame, or for more unselfish motives, thus to systematise their studies. Even as things at present stand there are among the diocesan chancellors gentlemen whose tenure of that office illustrates my position; and in more than one member of the Commission I see those who have to take a very short step to find themselves occupying a very high level among ecclesiastical lawyers.
Then, as the Inns of Court now provide that the call to the Bar shall not be a bare formality, so no doubt will the Universities recast, with a view to the new requirements, their examinations in the degree of ' LL.D.' or 'D.C.L.' and add appropriate distinctions. As an ecclesiastical profession, ecclesiastical law has so close a connection with spiritual concerns, that I see no objection to allowing the man who practises it to be a clerk in holy orders.
The restoration, I repeat with all the seriousness of which I am capable, of the ecclesiastical law as a study and as a profession lies at the root of any healthy pacification; as its abeyance is a main source of our present disorder. In the case of Liddell v. Westerton in 1857, when the word 'shrines' came before the Judicial Committee in reference to the Injunction commanding them to be taken away, it hardly raised the bystanders' respect to see these great and learned jurists puzzled by that word, until Sir William Maule, the most acute of men when he knew what he was talking about, helped the matter by quoting a sentimental line from some minor poet of the last century. Then the Committee came to trindles,' and that was a mystery of iniquity alike to Judges and Bar. It is almost cruel to revive the incident, but in this Liddell and Westerton judgment, satisfactory as it was in its practical results, there was one little slip, as it was originally given to the world, which was very judiciously corrected in the form in which it appears in the book-namely, the assertion by Her Majesty's Judicial Committee that in the Prayer Book of 1552 there was no Prayer of Consecration in the Communion
Service. So much for my first postulate-the restoration of the ecclesiastical law.
The next point turns on different considerations, and on it I must fairly confess at the outset that, at this stage of the inquiry, we may be met by a difficulty which it is not wise to overlook. We may be told that complaints against the jurisdiction generally arise from some judgment having been pronounced which runs counter to some party persuasions of an influential section of Churchmen. The answer is that there must be something wrong about Courts which are habitually so charged, and not from one side only. But it would be very unfortunate if the Courts were to be reformed, and then to incur the imputation, however unfounded, of having been manipulated so as to secure the triumph of a foregone conclusion. Now it happens that, although several of the earlier judgments of the Judicial Committee which provoked criticism turned upon doctrinal matters, latterly the burning controversies have been concerned with ritual; so it would be desirable as far as possible before we construct the new Courts to clear off the legacy of contention which attaches to ceremonialism. When the Public Worship Regulation Bill was in Committee in the House of Lords, the Bishop of Peterborough made a well-intentioned proposal to neutralise some things--notably, the position of the priest at the Lord's Table. However, Lord Cairns proposed to include in the neutral zone the use of the Athanasian Creed, and naturally the suggestion collapsed. But it stands on record that men of distinction have entertained the idea of some such limitation as a legal possibility. When I was examined before the Ecclesiastical Courts Commission, I suggested that it would be a good thing if the Episcopate in private meeting, or the Convocations, could put out, not of course as claiming legal or parliamentary value for their conclusions, but with all the moral value of a joint determination from such a body, some concordat on ritual questions. The late Archbishop of Canterbury, who was examining me, asked me whether it would not be enough if every bishop in his own diocese were to put out his own declaration. I ventured to say that that would have been enough a few years ago, but not now; and the Archbishop inquired, Why not?' My answer was that people were more discontented, and that when they were more discontented they generally wanted To his further criticism that the appearance of collectively defying the law would wear a bad appearance, I replied in effect that rather desired to focus how much the law actually allowed. I still think such a declaration would be a good thing; but I must say that the longer Churchmen keep the peace together, and the more things morally indifferent obtain practical permission, the less will it be needed. The position from which I am considering the question is that of a moderate High Churchman of rather oldfashioned opinions, who values ceremonial worship, but who depre