them. He trusted that the House would never part with this power. It might be said that the judges would never do these things. Wouldn't they? The first thing done by these Rules and Orders was to abolish the Bill of Exceptions which had been granted to suitors by Edward I., to prevent caprice and the exercise of what was called 'discretion' on the part of the judges. The Bill of Exceptions was one of the rights of the suitor. The judges ought to administer the law, and ought not to have the discretion' which would enable them to alter it. Another exceptional feature in the Rules and Orders was the power given to the Common Law judge over costs. The power of giving costs would be in the discretion of the judges, and it would totally alter the relations between the judges and the Bar. It was right that in Equity cases the judge should have the power of deciding as to the payment of costs, because he has the whole case before him. But imagine a case of libel, or of interference with personal liberty, which would come before a jury. If the judge took a view opposed to that of the jury, he might avenge himself—and it was necessary to speak out on this subject-by punishing the counsel, the suitor, and the jury, because he differed with them in opinion. At present, if a judge manifested caprice or lost his temper during a trial, the counsel bore it patiently, because they knew that the judge was subject to the laws. If he was wrong in his ruling they tendered a bill of exceptions; and if he overrode counsel they had the jury to appeal to. The Rules and Orders would alter all this, and produce changes such as no one at present realised.

It appears then that the clergy are not the only class in the community who gravely suspect the partiality of our tribunals in questions where the

prejudices of the judges are tolerably certain to come into play. And it must be allowed that the clergy have special reasons for suspiciousness, inasmuch as the questions which affect them are too often decided by judges who have at best no more than the merest rudimentary knowledge of them, and who consequently commit themselves to statements and conclusions which those who have studied these questions know to be quite erroneous. There was a time when English judges were profoundly versed in ecclesiastical history and Canon Law. How many are there on the Bench now who have seriously studied these questions? Is it so marvellous then that men who have studied them feel no great respect for judicial deliverances which, as in the case of the Purchas judgment, bristle all over with blunders ? For myself, I know not why I should reject the False Decretals of the Papacy and accept those of the Judicial Committee. After all, Historic Truth 'is great, and will prevail,' the Purchas judgment and its defenders notwithstanding.

But I hasten to add that I acquit the Judicial Committee of anything worse than unconscious bias. I have no doubt that the members of the Court have always acted with entire conscientiousness. But it is possible that the very conscientiousness of a judge may tempt him unconsciously to bend the law from the straight line of justice in the direction of some interest which he conceives to be of paramount importance. So that his conscientiousness, instead of being a protection to him, is a snare. The

late Sir George Cornewall Lewis has some observations on this subject, which are so pertinent that I shall take the liberty of quoting them :—

...

It is universally admitted that no man ought to be a judge in his own case. But, if the case were not his own, his competency to form a judgment upon it might be indisputable. So if any political measure be proposed which affects the interest of a profession, it may happen that persons belonging to that profession, though peculiarly competent to form an opinion respecting it, on account of their experience and knowledge, are disqualified on account of the probable bias of their judgment by personal considerations; and that the requisite indifference is only to be found among those who do not belong to the profession. Such outlying persons may be the only impartial judges in the matter. . . . The operation of a personal interest in perverting the judgment is so insidious, that great honesty, combined with perpetual vigilance, is necessary in order to guard against its influence. Men utterly incapable of telling a deliberate untruth, or deliberately expressing an insincere opinion, are nevertheless liable to be warped by personal interest in the deliberate formation of opinions. When a strong bias of this sort exists, their minds, ready to receive every tittle of evidence on one side of a question, are utterly impervious to arguments on the other. Hence we see opinions, founded on a belief (and often a radically erroneous belief) of self-interest, pervade whole classes of persons. Frequently the great majority of a profession, or trade, or other body, adopt some opinion in which they have, or think they have, a common interest, and urge it with almost unanimous vehemence against the public advantage. On occasions of this kind, the persons interested doubtless convince themselves of the

reasonableness of the view which they put forward; they are guilty of no hypocrisy or insincerity; but their judgment is warped by their belief as to their interest in the question.'

But the bias of self-interest is not always the most powerful bias. Many a man who knows himself too well to suffer the promptings of self-interest to bias him is readily influenced by the interest which he feels in a great cause or institution. Lord Cairns and Lord Selborne were far above the motives of selfinterest. But the former was a very strong Puritan, and both were devoted to the interest of the Church as an Establishment, and allowed their minds, I believe, to be biased against a party who, they thought, were imperilling the Establishment. I may shock some of my friends, but I will frankly own that the judge whom I should be disposed to trust in these questions would be a great and strong lawyer like the late Sir George Jessel, who, as a Jew, would have the requisite indifference.'

'Influence of Authority in Matters of Opinion, pp. 34-36; cf. Mill's Logic, ii. 286-7, third edition.

CHAPTER XI

ANGLICAN AND ROMAN ORDERS

WHEN one has a good case it is an error in tactics to stand on the defensive. I propose therefore in this chapter to test very briefly the validity of Roman Orders by the criterion applied by Leo XIII. to the validity of Anglican Orders in the Bull in which he declared their invalidity. In the most weighty, learned, and dignified "Answer' of our two Primates to that Bull it is shown conclusively that the argument on which the Pope bases his conclusion would invalidate the Orders of every Church in Christendom, and most of all the Orders of the Church of Rome. The retort of 'The Cardinal Archbishop and Bishops of the Province of Westminster,' in their 'Vindication of the Bull "Apostolicæ Curæ," is one of the weakest specimens of special pleading which it has ever been my lot to read. It is of course natural for Cardinal Vaughan and his colleagues to assume throughout the infallibility of the Pope. To those, who accept that dogma, further argument is obviously superfluous. The Pope has declared that Anglican Orders are invalid, and therefore causa finita est for all infallibilists. But for others Cardinal