THE EOYAL COMMISSION ON
ECCLESIASTICAL DISCIPLINE AND
THE OENAMENTS EUBEIC
BY TEE SAME AUTHOR.
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THE
REFORMATION SETTLEMENT:
Examined in the Light of History and Law.
LONGMANS, GREEN, & CO., 39 Paternoster Row, London,
New York, and Bombay
THE ROYAL COMMISSION
AND
THE OBNAMENTS BUBRIC
BY THE
KEY. MALCOLM MAcCOLL, D.D.
CANON RESIDENTIARY OF RIPON
LONGMANS, GREEN, AND CO,
39 PATERNOSTER ROW, LONDON
NEW YORK AND BOMBAY
1906
All rights raserved
CONTENTS
INTRODUCTION
Reason why this book was written Unconscious bias of some
of the Commissioners Sir George Cornewall Lewis on the
influence of unconscious bias Unconscious bias of judges
attested by great legal authorities John Stuart Mill on
unconscious bias Unconscious bias in the Gorham and other
Judgments delivered by the Judicial Committee Judgments
of policy Blunders committed by the Judicial Committee
Eminence in one branch of law does not prove a judge
competent in other branches Study of the Common Law
may disqualify a man for adjudicating in Ecclesiastical cases
The principles and doctrines of these two branches of the
law mutually antagonistic Ecclesiastical Law is based on
authority and tradition; the Common Law on positive
enactments to express national sentiment from time to time
The former governed questions of Doctrine and Ritual in
England till 1832-1833, when it was superseded by the
Judicial Committee The Judicial Committee is now * only a
consultative body,' and ' has no jurisdiction,' yet claims to
be a Final Court of Appeal It suppresses differences of
opinion among the judges, and violates a fundamental prin-
ciple of British Justice Burke, Lord Brougham, and the
late Chief Baron Fitzroy Kelly quoted against the practice of
the Judicial Committee Dr. Stubbs and Mr. Gladstone on
the Judicial Committee The pledge given in 24 Henry VIII.
c. 12 must be redeemed Difference between the King in
Council and the King in Chancery Doctrine of Lord Coke
and of Queen Elizabeth Not the ability or the integrity of
the judges, but their knowledge, is in question Disuse of
Eucharistic Vestments no proof of their illegality Recom-
mendations of the Royal Commission of 1689 Macaulay on
those recommendations and on the policy of the Churches of
Rome and England respectively towards religious movements
Persecution of the Tractarians a warning and a lesson
vi CONTENTS
PAGE
Equal justice must be meted out to all parties Best remedy
for present disorders Ritualism and Secularism Mr. W. R.
Greg on the working classes and the Ritualists The three
parties in the Church check each other beneficially Passion
for Uniformity mischievous Not Popery, but irreligion, is the
danger of the day Predestined mission of the Church of
England xiii-cx
CHAPTER I
Queen Elizabeth's Religious Belief and Policy on her Accession, as
intimated to the Spanish Ambassador Sir Lewis Dibdin and
Dr. Gibson discredit the story 1-5
CHAPTER II
The Augsburg Confession and Henry VIII. The Augsburg Con-
fession on the Mass and Auricular Confession Proposed
Agreement on Religion between Anglicans and Lutherans
Death arrested Henry VIII.'s Reformation Policy Henry
VIII. requested Cranmer to pen a Form to turn the Mass into
a Communion The Order of the Communion was the Result
Facts thus confirm the accuracy of Elizabeth's reported
Conversation with the Spanish Ambassador .... 6-14
CHAPTER III
A great part of Divine Service was in English at the death of
Henry VIII. There was a process going on for some years
previously of translating various portions of the Latin Services
into English The Epistles and Gospels were read in English
from the year 1537 Examples of various Editions Occa-
sional Services in English in Henry VIII.'s Reign The
Primers explained The Breviary of the Laity Henry VIII.'s
Last Primer Froude and Dixon on the Primer . 15-37
CHAPTER IV
The Order of the Communion and the Book of Common Prayer
were drafted in Henry VIII.'s Reign The Book of 1549 was
but the filling in of the Outline This was the Result of a
CONTENTS vn
FAGS
long Process Examples given Statutory authority of Picked
Committees for ordaining Rites and Ceremonies by 32
Henry VIII. c. 26 38-47
CHAPTER V
Main lines of the Reformation laid in Henry VIII.'s Reign
Erroneous views on this subject The Church took the lead in
repudiating Papal Supremacy Examples given No new
Formulary of Doctrine issued in Edward VI.'s Reign . 48-57
CHAPTER VI
Religious Policy of Edward VI. and Elizabeth compared
Cranmer opposed to Edward's Second Prayer- Book The
Constitutional Reformers alienated by the Revolutionary
Policy of the Puritans Elizabeth's disapproval of the Policy
of the Puritans Elizabeth's own feelings and Religious
Policy . 58-66
CHAPTER VII
Elizabeth's Political Necessities coincided with her Religious
Convictions Numerical Proportion of Religious Parties in
1559 The Problem which Elizabeth had to face on her
Accession She steered a Middle Course 67-73
CHAPTER VIII
Meaning of ' by Authority of Parliament in the Second Year of
the Reign of King Edward VI.' Judicial Decisions That of
Sir John Dodson as Dean of the Arches in the case of Wester-
ton v. Liddell Decision of the Judicial Committee of the
Privy Council in the same case Those Judgments criticised
and shown to rest on Historical Errors The Entry in King
Edward VI.'s Journal Two Interpretations of the Ornaments
Rubric and the Ornaments Clause in Elizabeth's Act of
Uniformity Meaning of ' made ' as applied to Acts of Parlia-
ment The Ornaments Rubric and the Act refer to the usage
of Edward's Second year Historical examples in proof of
this . . . 74-95
viii CONTENTS
CHAPTER IX
PAGE
The Latin Act of Uniformity Its bearing on the meaning of the
Ornaments Bubric Dr. Gibson's reasons for considering the
Appeal to the Latin Act of Uniformity irrelevant, examined
Proof that the Latin Act of Uniformity was contem-
poraneous with the Latin Prayer-Book of 1560, and also
authorised The Latin Prayer- Book proves that ' the second
year ' in the Ornaments Rubric refers to the legal usage of
that year, and therefore not to any usage prescribed by the
Act of Uniformity of 1549 96-110
f
CHAPTER X
The Royal Assent to the first Prayer-Book impossible in the
second Regnal year of Edward VI. Evidence adduced
to prove this Arguments to the contrary of Sir Edward
Clarke, Sir Lewis Dibdin, and other Commissioners examined
seriatim Was a specific date fixed for the coming into force
of the Act of Uniformity of 1549 ? Did that Act, ipso facto,
release the prisoners mentioned in its Preamble ? Argument
from statutes being in the form of Petitions examined The
General Pardon Act proves that the Act of Uniformity re-
ceived the Royal Assent on March 14, in the third year of
Edward's reign The burden of proof is on those who deny
this 111-129
CHAPTER XI
To what does by authority of Parliament ' in the Ornaments
Rubric refer? The Author's view criticised by Sir Lewis
Dibdin, Sir Edward Clarke, and Dr. Gibson Authors
appealed to by Author Dr. Gee on Sandys's assertion that
the Ornaments Rubric authorised the ornaments which were
used in the first and second year of King Edward Bearing of
26 Henry VIII. c. 1 on the Ornaments Rubric Further,
32 Henry VIII. c. 26 gave statutory authority to the Order
of the Communion The contention that this Act was
repealed by 1 Edward VI. c. 12, as maintained by Sir Lewis
Dibdin and Sir Edward Clarke, would play havoc with
English History The contention examined in detail, and
authorities quoted to the contrary The success of the
Author's argument would not, as suggested by Sir Lewis
Dibdin, supersede the necessity of Acts of Uniformity
Sandys on First and Second Year ' of Edward VI. . 130-159
CONTENTS ix
CHAPTER XII
PAGE
The Prayer-Book of 1549 no exhaustive Directory of Public
Worship Authorities quoted The Puritans Unpopular in
1549 Use of first Prayer-Book never Universal Question of
Kneeling at reception of Holy Communion raised by Knox as
King's Chaplain Cranmer on Puritan objections to the first
Prayer-Book Second Prayer-Book of doubtful authority
Used very partially Primary Cause of the Eeformation
Authorities quoted in proof Elizabeth's own account . 160-176
CHAPTER XIII
Dr. Gibson on the last year of Henry VIII. and the first and
second years of Edward VI. Religious changes in 1547-9
Appeal to Facts The Ritual usage sanctioned in Edward VI.'s
second year Chantries in 1547-1548 . . . 177-182
CHAPTER XIV
Cosin and other Commentators on the Ornaments Rubric
Cosin confuses the second and third years of Edward's reign,
mistaking 1549 for the second year, and thus misleading
subsequent writers Cosin understands the second year to
cover the usage of that year Reconciliation of Cosin's
apparent discrepancies with the exception of his mistaking
1549 for the second year Another contemporary writer
makes the same mistake . 183-191
CHAPTER XV
The Advertisements did not repeal the Ornaments Rubric
Indirect Repeal Explained Case of Mastin v. Escott upsets
Purchas and Ridsdale Judgments Liturgical Ignorance of
the Judicial Committee illustrated Courts should not con-
strue against the Statute The Advertisements had no
Statutory force They were aimed at the Puritans alone
Evidence of Puritan Leaders and Impartial Historians The
Queen's own Testimony She explains the intention of the
Advertisements The Advertisements had only Episcopal
Authority The Argument summed up Why the Queen re-
fused her formal sanction to the Advertisements The Legal
Status of the Advertisements irrelevant to the Argument, and
CONTENTS
PAGK
why Bishops Home and Grindal on the Advertisements
The Advertisements avowedly directed against the Puritans
Legal Status of the Advertisements repudiated by the House
of Lords in 1641 192-228
CHAPTER XVI
Dr. Gee's Theory based on two documents The * Device ' and
Guest's Letter Summary of the * Device ' Probably
inspired by Cecil A third Document also inspired by Cecil
Cross Currents in the Revision of 1559 Dr. Gee's View
tested by the Declarations of Elizabeth and by the Attitude of
Puritan Leaders The Puritans antagonistic to Elizabeth's
Policy Cecil's Wishes and Guest's Letter Guest's Letter
quoted Cecil and Guest's Letter Dr. Gee's Argument
examined Internal Evidence against Dr. Gee's Theory
The Author's Explanation of the Revision of 1559 . . 229-266
APPENDIX A
Elizabeth's Conversation with Count De Feria, the Spanish
Ambassador State of Religion at the Death of Henry VIII.
Divine Service partly in English in Henry VIII. 's reign
The Ornaments Rubric and the Order of the Communion
The Order of the Communion had Statutory Authority
Authority cited Was 32 Henry VIII. c. 26 repealed by
1 Edward VI. c. 12 ? Import of 25 Henry VIII. c. 19
It was confirmed by 35 Henry VIII. c. 19 Dilemma as to
' Second Year ' Parliamentary Use of ' Made ' Meaning of
the ' Second Year ' Does it refer to the Usage of that year ?
Or to Parliamentary Authority given in that year ? Appeal
to alleged precedents None of the cases relevant. Onger
and Greensteed Statute not a case of usus loquendi Had
first Act of Uniformity a special date for coming into force ?
De Feria and De la Cuadra Elizabeth and the Confession
of Augsburg Guest's Letter and Strype's Suggestion Dr.
Gee on Guest's Letter Judicial Decisions and the Ornaments
Rubric Letter of Sandys Meaning of First and Second
Year Cosin on the Usage of the Second Year Sir Edward
Clarke on the Ornaments Rubric and on the Assent to a Bill
CONTENTS xi
by Royal Commission ending the Session Sir Edward Clarke
on the Disuse of the Eucharistic Vestments Elizabeth's
intention in 1559 Date of the Act of Uniformity of 1549
Edward VI.'s Journal Mr. Drury on Ceremonies Latin Act
of Uniformity Cosin on the Ornaments Rubric Primers
used in Public Services Elizabeth and Henry VIII.
Elizabeth and Mary Disappearance of Vestments The
Cope obligatory, yet disappeared Withdrawal of an admission
General and Specific Repeals of Acts of Parliament . 269-372
APPENDIX B
1 Edward VI. c. 12 quoted 373-375
INDEX 377
Errata
Page 195, headline : for Martin read Mastin
Pages, 341, 342, 344, headlines : for Date of her Act of Uniformity read
Date of the Act of Uniformity
INTRODUCTION
THE Eoyal Commission on Ecclesiastical Discipline
did me the honour of inviting me to give evidence
as to the meaning, in my opinion, of c the second
year ' in the Ornaments Eubric and in the Eliza-
bethan Act of Uniformity which ratified it. On
my accepting the invitation I was asked to send
the Commissioners a summary of the points on
which my opinion was based, which of course I did.
Meanwhile a copy of my book on the Reformation
Settlement was supplied to each of the Commis-
sioners without my knowledge, and T thus found
myself unexpectedly cross-examined on various
points in a book which I had not read for five years.
My examination, or rather cross-examination,
lasted five days, and I had to come up in mid-
winter from various parts of Yorkshire where I had
promised to help some of the clergy. My books,
moreover, were packed up, preparatory to removal
to a new home. I was thus unable to make any
preparation for each day's examination, even if I
knew, which I did not, the questions which were
to be put to me. On two evenings only I had time
xiv INTRODUCTION
to consult books in a club library, and verify my
recollections. Under pressure of cross-examina-
tion from able and learned men like Sir Lewis
Dibdin, Sir Edward Clarke, and Dr. Gibson (now
Bishop of Gloucester), I was induced to
Errata.
As the author's reference to some of his examiners on
p. xv has been misunderstood by one of his reviewers, he
wishes to say emphatically that he was treated by all the
commissioners with great courtesy and consideration. All
he meant, as he goes on to explain, was that one or two of
his examiners seemed to him occasionally not to give its
proper weight to one class of evidence which he placed
before them; and this he attributed to unconscious bias
due to imperfect acquaintance with some of the facts or to
an imperfect knowledge of the canons which govern the
interpretation of ecclesiastical law.
the Commission has been formally presented. The
Chairman courteously allowed me to possess a
copy of the official report of my examination, and
I give it in full in the Appendix, so that the reader
may be able to judge for himself how far I have
been successful in vindicating my accuracy against
its impugners.
I am sure that the Commissioners intended to
be perfectly fair. But those of them a small
minority who took the leading part in my ex-
INTRODUCTION XV
amination seemed to me to forget the purpose for
which they were appointed, which was to inquire
impartially into facts and present a report based
upon those facts. I was there by invitation of the
Commission to give such information as I might
possess on a disputed point in ecclesiastical
history. I held no brief for any person or party,
and I told the Commission what I believed to be
true, quite regardless of any private opinions or
predilections of my own. If I were an Agnostic
in matters of religion I should have given precisely
the same evidence, for truth and justice are in-
dependent of personal opinions and beliefs. Yet
I found myself cross-examined by some of the
Commissioners as if the Commission were a judicial
tribunal and I a hostile witness in a criminal
prosecution. They seemed to me less intent on
getting at the plain facts and forming an indepen-
dent judgment on them than on finding evidence
in support of a foregone conclusion. 1 The reader,
however, has the means of judging for himself in
the short-hand report of my examination, which
he will find in the Appendix. The great difficulty
in matters of controversy and perhaps in religious
controversy more than in any other is to exclude
unconscious bias and secure what Sir George
Cornewall Lewis calls ' the requisite indiSerence ' ;
by which he means indifference to all considera-
1 I except from this criticism the Primate, the Bishop of Oxford,
Sir John Kennaway, Mr. Talbot, Mr. Prothero, and Lord St. Aldwyn.
a
xvi INTBODUCTION
tions except truth and justice. The passage is worth
quoting :
Ifc 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 pecu-
liarly 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 per-
sonal 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 in-
fluence. 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 erro-
neous 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 judg-
INTKODUCTION xvii
ment is warped by their belief as to their interest in the
question. 1
But the bias of self-interest is not always by
any means the most powerful bias. Many a man
who would instantly repel the promptings of self-
interest is easily influenced by loyalty to a great
cause, or institution, or political party. The
Judicial Bench is in this country proverbially free
from the temptation of perverting justice through
self-interest. But is it equally free from perverting
justice through the subtle influence of uncon-
scious bias ? Have not judges been accused even
in our own time of yielding to this temptation ?
Let me give some examples. Lord Selborne, when
he sat in the House of Commons in 1868 as Sir
Eoundell Palmer, offered a strenuous opposition to
the transference of election petitions from the
House of Commons to the judges on the ground
of what he thought the inevitable political bias of
the judges. These are his words :
Judges, like other men, have their politics, but at
present cases in which political bias might be supposed to
affect their minds were rare, although in these cases they
frequently gave their judgments according to their politics. 2
And is it not true that no general election has
passed since then without accusations of partisan-
1 The Influence of Authority in Matters of Opinion, p. 34.
5 Hansard, third series, cxii. 286-7.
a 2
xviii INTEODUCTION
ship against some of the judges' decisions in
election petitions ?
When the Supreme Court of Judicature Act
was before the House of Commons, and it was
proposed by the Government to give discretionary
power to the judges in the matter of assessing costs
and in a few other particulars, the Bar flew to
arms in dismay, and proclaimed its profound
distrust of the impartiality of our judges in cases
where their political sentiments were likely to be
strongly engaged. Let the following extracts from
the speeches of two distinguished members of
the House of Commons, afterwards elevated to the
judicial bench, suffice by way of example. Mr.
Lopes said : 1
When the proper time came he should move an
amendment that the bill of exceptions should be pre-
served. Again, under the Act of 1873 and this Bill, if
a judge misdirected a jury, or improperly received or
rejected evidence, a new trial was not to be granted unless
the Court before whom the case came should be of opinion
that the miscarriage of justice was caused by the mis-
direction unless the jury had been affected by it.
Judges were so apt to think they were right when
they were wrong that this would be a very dangerous
inroad indeed. Hitherto, save in a few very excep-
tional cases, costs always followed the event, and in
no case was the successful party deprived of his costs ;
but the Bill proposed to give a judge absolute discretion,
so that a judge who disapproved a verdict might order
a successful defendant to bear the costs of an action.
1 See Times of July 6, 1875.
INTRODUCTION xix
Mr. Watkin Williams used even stronger lan-
guage, as the following extract from his speech
will show :
These Kules and Orders would be made by the judges
and would come into operation, and then in the month of
March or next Easter the House might interfere. But
suppose the judges abolished meanwhile trial by jury.
The Lord Chancellor might order cases to be tried by
a judge instead of before a jury, and when the matter
came to be discussed in Parliament all manner of proceed-
ings would be taken under these Rules and Orders, and
they would be told that the greatest inconvenience would
be caused by the House repealing 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 Kules
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 sub-
ject by punishing the counsel, the suitor, and the jury,
xx INTEODUCTION
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 over-
rode 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.
Mr. Justice Neville, whose appointment to the
judicial bench has been hailed with satisfaction by
the Bar and Press, said in the course of a speech
in the House of Commons some twenty years ago
that
He had never assented to the argument so often heard
in the House, that because a man was made a judge one
must treat it as certain that no prejudice on his part will
interfere with the soundness of his judgments.
One of the ablest and most learned, and cer-
tainly one of the most conscientious, lawyers who
ever adorned bench or senate, was the late Lord
Herschell ; yet he, great as was his admiration of
British justice in general, did not hesitate to im-
peach the findings of British judges on occasions
on which their political feelings were strongly en-
listed on one side. In a debate in the House of
Lords, on March 21, 1890, on the Special Commis-
sion to inquire into the conduct of Mr. Parnell and
some of the Irish Nationalists, Lord Herschell
said :
I know it was said the tribunal was non-political.
Non-political judges who have never mixed in politics
INTKODUCTION xxi
have their views as strong as other men, and I have
heard the bitterest things said against them. I am not
saying that they always act on them, but when men
closely connected with politics and political life come into
controversy, I should consider it wholly material that the
case should not be determined by those whose political
prepossessions were either one way or the other. I differ
from no one in admiration of the judges and of their
inviolate integrity, but when it is said their political pre-
judices never bias their judgment, that is so completely
contradicted by matters within my own experience that
I am unable to agree with it. I maintain it is in the
highest degree dangerous that a party should select a
tribunal and nominate its members, and should take no
care that the tribunal should be impartial in the sense of
bias, or that if there was bias one way there should be
bias the other.
Since members of the Bar themselves, who
have the best opportunity of knowing, are thus
suspicious of the partiality of judges under stress
of political or party bias, is it so very strange that
laymen should occasionally distrust the partiality
of judges on questions of religion? If, as Lord
Chancellor Selborne said, ' Judges, like other men,
have their politics, which are apt sometimes to
bias their judgment,' may we not say that judges,
like other men, have their theological prejudices
also, which are at least as likely as their politics to
sway their minds in the direction of their prejudices ?
John Stuart Mill has some excellent observa-
tions on the indirect power of bias to warp the
mind in weighing evidence all the more potent
xxii INTRODUCTION
because indirect, and therefore unsuspected. Bias,
he says, is not f a direct source of wrong conclusions.'
If it were, an honest man would detect it at once
and avoid being influenced by it :
* The most violent inclination to find a set of proposi-
tions true will not enable the weakest of mankind tc
believe them without a vestige of intellectual grounds,
without any, even apparent, evidence. It can only act
indirectly ' and therefore all the more dangerously ' by
placing the intellectual grounds of belief in an incomplete
or distorted shape before his eyes. It makes him shrink
from the irksome labour of a rigorous induction when he
has a misgiving that its result may be disagreeable ; and
in such examination as he does institute, it makes him
exert that which is in a certain measure voluntary, his
attention, unfairly giving a larger share of it to the
evidence which seems favourable to the desired conclusion,
a smaller to that which seems unfavourable. And the
like when the bias arises not from desire, but fear.' l
This unsuspected influence of unconscious bias
is, I believe, largely responsible for the extra-
ordinary distortions of law and history which per-
vade some of the judgments in ecclesiastical
matters which have been delivered by the Courts,
and especially by the Judicial Committee of
the Privy Council, during the last half-century.
Ignorant of scientific theology and ecclesiastical
law, and very little versed in ecclesiastical history,
they have regarded the Church as a secular rather
than as a divine organisation, and have shown
1 System of Logic, ii. 286.
INTEODUCTION xxm
themselves impatient of any views or practices
which seemed to them calculated to imperil the
existence of an institution so august and useful.
They have therefore framed their judgments mainly
with a view to averting the peril. Mr. Gorham
was supposed to represent the Evangelical party,
and it was feared that the condemnation of his
doctrine would cause a serious secession and
jeopardise the Church as an Establishment. To
ward off that catastrophe the plain language of the
Prayer-Book was distorted into a sense flagrantly
contrary to its plain meaning. The Prayer-Book
says : ' We beseech Thee, for Thine infinite
mercies, that Thou wilt look upon this child ; wash
him and sanctify him with the Holy Ghost.'
4 Almighty and immortal God, the aid of all that
need, the helper of all that flee to Thee for succour,
the life of them that believe, and the resurrection
of the dead, we call upon Thee for this infant, that
he, coming to Thy holy baptism, may receive re-
mission of his sins by spiritual regeneration.'
' Give Thy Holy Spirit to this infant, that he may
be born again, and be made an heir of everlasting
salvation.' ' Eegard, we beseech Thee, the sup-
plications of Thy congregation ; sanctify this
water to the mystical washing away of sin, and
grant that this child, now to be baptized therein,
may receive the fulness of Thy grace, and ever
remain in the number of Thy faithful and elect
children.' Then, after baptism : c Seeing now,
xxiv INTRODUCTION
dearly beloved brethren, that this child is regenerate
and grafted into the body of Christ's Church.'
< We yield Thee hearty thanks, most merciful
Father, that it hath pleased Thee to regenerate
this infant with Thy Holy Spirit, to receive him
for Thine own child by adoption, and to incor-
porate him into Thy holy Church.'
Is it possible to express the doctrine of
baptismal regeneration in language more plain
and unambiguous? Not baptismal regeneration
in general, let it be observed, but baptismal re-
generation in the case of every infant baptized. It
is for the regeneration of ' this child,' ' this present
infant,' that minister and congregation pray. It is
for the actual regeneration by baptism of ( this child '
that the minister and congregation give thanks
after baptism. c These words,' says an honest
witness, whose own bias was in a contrary direction,
( to all minds not sophisticated appear to assert the
regenerating virtue of the Sacrament.' l Yet the
Judicial Committee decided that the words just
quoted do not teach baptismal regeneration. The
words, they affirmed, do not go further than a
charitable hope that the child may be and has
been regenerated. Mr. Gorham taught a doctrine of
baptismal regeneration by predestination and elec-
tion. Not every child was regenerated in baptism,
but only such children as had been predestinated
by Almighty God to receive the gift of ' prevenient
1 Macaulay'e History of England, iii. 473.
INTEODUCTION xxv
grace ' before baptism, < to make them worthy,'
thus representing God as an arbitrary and capri-
cious Deity, bestowing and withholding grace
solely on grounds of pure favouritism. There was,
therefore, such a thing as baptismal regeneration
in the abstract, but it was impossible to predicate
it in the concrete of any child in particular. And
this doctrine the court affirmed not to be contrary
to the formularies of the Church of England ! It
was evidently a judgment of policy, not of law and
justice. Is it surprising that a court of law which
could conscientiously reverse the meaning of plain
language in this way, * doing evil that good might
come,' should fail to command the confidence or
even respect not on]y of those whom it wronged,
but of a large section of impartial persons in addi-
tion ? It is the business and duty of a court of
justice to declare what the law is, not what, in the
opinion of the court, it is expedient that the law
should be. A judicial tribunal has nothing to do
with consequences, and when it allows conse-
quences to influence its judgment it ceases to be a
court of justice. It no longer administers law, but
makes it.
Twenty-one years later Mr. Bennett was tried
on the charge of teaching erroneous doctrine con-
cerning the Eucharist. He had certainly used
crude and careless language which could not be
defended on theological grounds. But, acting on
sound advice, he discarded his own language in
xxvi INTRODUCTION
favour of words suggested by Dr. Pusey. ' My
meaning,' Mr. Bennett explained, i and that which
passed through my mind in writing the original
passages, w r as precisely the same as that which is
now conveyed in the words substituted. 7 And he
adds :
The three great doctrines on which the Catholic
Church has to take her stand are these : 1. The real
objective Presence of Our Blessed Lord in the Eucharist.
2. The sacrifice offered by the priest. 3. The adoration
due to the Presence of Our Blessed Lord therein.
The court, though censuring Mr. Bennett's
language, acquitted him of contravening the doc-
trine of the Church of England on the points on
which he had been impeached. But if his con-
demnation did not embrace that of the High
Church party, with disastrous consequences to the
Church, it is probable that the result would have
been different.
Some years previously a clergyman of the name
of D unbar Heath was tried for heresy on the sub-
ject of the Atonement. Deprived by the Dean of
Arches, Dr. Lushington, he appealed to the Judicial
Committee. In the interim he took some pains to
explain himself to his diocesan and to the Court of
Appeal, but without avail. I quote the last para-
graph of their Lordships' judgment :
Their Lordships have had their attention directed to
a letter addressed by Mr. Heath to the Lord Bishop of
Winchester on January 2, 1860, in which he states that,
INTRODUCTION xxvii
if he has laid down any doctrine or position at variance
with the Articles or formularies, he has done so un-
wittingly and in error, and in which he requests his
diocesan to point out in what respects he has done so,
that he may correct whatever error he has fallen into.
Another and more formal document has also been brought
before their Lordships, in which Mr. Heath has stated
that, if it appears to the Ordinary, and to the Official
Principal of his Grace the Archbishop of Canterbury, that
his language does contain or teach a doctrine directly
contrary or repugnant to any of the Thirty-nine Articles
of Eeligion, he expresses his regret and revokes his error.
I knew Mr. Dunbar Heath, who was a Broad
Churchman. He was a Fellow of Trinity College,
Cambridge, and was Senior Wrangler of his year.
But the effort to obtain that distinction had appa-
rently exhausted his intellectual energy. I have
seldom met a man of a more confused mind. He
was always in the clouds when he joined in the
discussions of a literary society of which we were
both members, and he seemed to labour under an
incurable incapacity to give intelligible expression
to his ideas. He was emphatically a man towards
whom every possible indulgence should have been
shown on a charge of heresy. He offered to with-
draw any expressions to which the court or his
diocesan objected, and to substitute other expres-
sions of which the court might approve. But he
had no backing. No party felt itself involved in
his condemnation. His overtures were accordingly
rejected and the sentence of deprivation was con-
xxviii INTRODUCTION
firmed. Mr. Gorham was acquitted in spite of his
flat contradiction of the formularies which he had
subscribed. Mr. Bennett was allowed to substitute
orthodox language for that which had been im-
pugned. Both had a numerous and powerful party
behind them, and serious consequences might have
followed the condemnation of either. Mr. Dunbar
Heath's condemnation carried no consequences
except to himself ; there would be no secession,
and the Church Establishment would receive no
shock.
But in some of their decisions in ecclesiastical
matters the Judicial Committee erred from their
ignorance of the subjects with which they had to
deal. A few instances will show the almost in-
credible character of that ignorance.
In Westerton v. Liddell the court said that
the first Prayer-Book of Edward VI. spoke of the
rite itself as the Lord's Supper, commonly called
the High Mass.' This blunder betrays ignorance
of the very rudiments of liturgiology.
Again, comparing and contrasting the first and
second Prayer-Books of Edward VI., the court
said:
But by the time when the second Prayer-Book was
introduced, a great change had taken place in the opinion
of the English Church, and the consequence was that,
on the revision of the Service, these several matters were
completely altered ; the use of the surplice was substituted
for the several vestments previously enjoined ; the prayer
INTEODUCTION xxix
for consecration of the elements was omitted, though in
the present Prayer Book it was restored. 1
Just imagine a final Court of Appeal seriously
declaring that the Prayer of Consecration in the
Prayer-Book was omitted for a hundred years,
from 1552 to 1662. One can see how the court
fell into this error. In Cardwell's < Two Books of
Common Prayer compared with each other ' the
contents of these Books are put in parallel columns,
and the parts which the two Books have in
common are omitted from the column containing
the Book of 1552. From this their Lordships of
the Judicial Committee hastily concluded that the
Prayer of Consecration was omitted altogether
from the Book of 1552. Is it tolerable that the
final decision of ecclesiastical affairs should be
entrusted to a tribunal so entirely ignorant of the
whole domain of liturgiology ? Surely it is not
necessary to be a ' Ritualist ' (in the popular sense
of that word) in order to see and deprecate the
scandal of such a state of things.
The court was equally astray in affirming that
1 by the time when the second Prayer-Book was
introduced a great change had taken place in the
opinion of the English Church.' No change at
all l had taken place in the opinion of the English
1 This extraordinary blunder was pointed out as soon as the judg-
ment was published, and for the passage in italics the following words
were substituted in the official Report : ' material alterations were
made in the prayer of consecration.'
xxx INTRODUCTION
Church.' The second Prayer-Book was not
the offspring of the Church of England. Its
parentage was foreign, not English. Calvin,
Bucer, Peter Martyr, and the English exiles trained
by them, were the real authors of the Book of 1552.
The English Church had no opportunity of revising,
or of expressing any opinion upon it. And even
its Parliamentary authority is somewhat shady.
The Prayer-Book which the second Act of Uni-
formity sanctioned was withdrawn from publica-
tion before the date on which it was to come into
use ; and it never came into use except partially
in London and the neighbourhood. Cranmer ex-
pressed a doubt of the legality of the Book after
being i altered again without Parliament.' l In-
deed, the Judicial Committee would have found
a decisive refutation of their theory of 'a great
change in the opinion of the English Church '
between the first Prayer-Book and the second, if
they had only taken the trouble to read the Act of
Uniformity which sanctioned the second Book.
The preamble of that Act bears the following
emphatic testimony to the unqualified merits of
the first Book :
Whereas there has been a very godly order set forth
by the authority of Parliament for common prayer and
administration of the Sacraments to be used in the
mother tongue within the Church of England, agreeable
to the Word of God and the Primitive Church, very com-
1 See p. 166.
INTKODUCTION xxxi
fortable to all good people desiring to live in Christian
conversation, and most profitable to the estate of this
realm, upon the which the mercy, favour, and blessing of
Almighty God is in no wise so readily and plenteously
possessed as by common prayer, due use of the Sacra-
ments and often preaching of Gospel, with the devotion
of the hearers :
And yet, this notwithstanding, a great number of people
in divers parts of this realm, following their own sensuality,
and living either without knowledge or due fear of God,
do wilfully and damnably before Almighty God abstain
and refuse to come to their parish churches and other
places where common prayer, administration of the Sacra-
ments, and preaching of the Word of God is used upon
the Sundays and other days ordained to be holy days.
For reformation hereof [that is, of the prevailing un-
godliness, not of the first Prayer-Book], be it enacted, &c.
The Act proceeds to enact stringent ecclesias-
tical and civil penalties against all who shall con-
tinue to abstain from attendance on Church ser-
vices and administration of Sacraments ; and it
* charges all the archbishops, bishops, and other
ordinaries ' to see to the execution of the law in
this respect. And to enable them to do this effec-
tually the Act gives them ampler power i to reform,
correct, and punish ... all and singular persons
which shall offend within any their jurisdictions or
dioceses.'
The Act, moreover, goes on to say that such
objections as were made to the first Prayer-Book
were caused ' rather by the curiosity of the minister
and mistakers than of any other worthy cause.'
b
xxxii INTEODUCTION
The truth is that the second Prayer-Book owes
its origin to two causes. Edward VI., under the
influence of the Swiss Keformers, threatened that
if Convocation and Parliament thwarted him he
would use his royal prerogative in furthering the
views of Calvin and his disciples. His Council, on
the other hand, supported him in his high-handed
policy because that policy promised no small
amount of plunder, the greater part of which w r as
likely to find its way into their own coffers. Vest-
ments for altar and clergy, gold and silver and
jewelled plate, valuable pictures, and books, and
manuscripts, if abolished as superstitious, would be
valuable as plunder. Not only church ornaments
of great value, but priceless libraries, the property
of cathedral, and college, and monastic institu-
tions, were sold and dispersed among private
families. The library of Westminster Abbey was
involved in the general ruin. The King sent a
letter for purging it of superstitious books and
manuscripts. ' The persons are not named, but the
business was to cull out all superstitious books, as
missals, legends, and such like, and to deliver the
furniture of the books, being either gold or silver,
to Sir Anthony Aucher.' ' These books/ says
Collier, with caustic humour, ' were many of them
plated with gold and silver, and curiously em-
bossed : thiSj as far as we can collect, was the super-
stition that destroyed them. 1 The libraries of Merton
College, Balliol, Exeter, Queen's and Lincoln were
INTEODUCTION xxxiii
similarly destroyed. * The public library made up
in a great measure of the books given by Anger-
ville, Bishop of Durham ; Cobham, Bishop of
Worcester; and Humphrey, the good Duke of
Gloucester underwent the same fate. The books
marked with red were generally condemned at a
venture for Popery, and where circles and mathe-
matical figures were found they were looked upon
as compositions of magic, and either torn or burnt ;
and thus an inestimable collection, both for number
and value, were seized by the visitors, turned into
bonfires, or given to binders and tailors for the
use of their trade.' L And it is to this wanton
ruin, the fruit of greed or senseless bigotry, that
our courts of justice have sometimes appealed in
proof of the illegality of Church ornaments thus
destroyed !
So much as to the ' great change in the opinion
of the English Church ' between the first and
second Prayer-Books of Edward VI. And the
worst of it is that the judges are not agreed among
themselves. The Judicial Committee in the case
of Westerton v. Liddell declared, as we have seen,
that the two Prayer-Books of Edward were
materially different in consequence of ' a great
change ' in the religious belief of the English
Church in the interval. But the same court in a
previous case declared that there was no material
change between the two Prayer-Books of Edward,
1 Hist. v. 417.
b2
xxxiv INTBODUCTION
o* between either and the Prayer-Book of Eliza-
beth. 1
Nor is the Judicial Committee the only secular
tribunal which is apt to lose its way hopelessly
among the landmarks of history. In adjudicating
on one of the issues of the Gorham case the Court
of King's Bench decided that King Henry VIII.
was ' impatient to marry Anne Boleyn ' five months
after her daughter Elizabeth was born ; thus in-
directly pronouncing the great queen illegitimate.
The same court, on the same occasion, declared
that Sir Thomas More was Lord Chancellor when
24 Hen. VIII. c. 12 was passed : that is, eleven
months after More had resigned the Great Seal.
It made a similar blunder in the case of Lord
Chancellor Audley. Sir Fitzroy Kelly made fine
sport of these historical fictions in the Court of
Common Pleas. But are they not almost inevitable
in the case of judges who are obliged to grope their
way in the dark among matters which lie outside
their studies and professional practice ?
I have the highest respect for lawyers, but
* sutor ne ultra crepidam ' is as applicable to the
legal profession as to any other. A man may be
a great lawyer without being necessarily more
competent than an ordinary mortal to sit in judg-
ment on a disputed passage in Plato or Tacitus,
and is likely to be less competent than a man who
1 Mattin v. Escott. The judgment was delivered by Lord Brougham.
INTEODUCTION xxxv
has made Plato or Tacitus a special study ; and is
it not true, though it may seem paradoxical to say
so, that the more successful a lawyer is in his own
profession, the less likely he is to be a good judge
in matters outside his own profession ? What time
has a successful barrister to master questions
which lie outside his ordinary studies, and which
he may think uninteresting and unprofitable ?
Indeed his opportunity of mastering even his own
branch of the law is in an inverse ratio to the ex-
tent of his practice. Lord Keeper North observed
that what a lawyer did not learn while he was a
student he would be little likely to learn at a later
time. And it is related of Lord Loughborough
that, thinking he would have more leisure after
reaching the judicial bench, he began to study the
history of our law after he became Lord Chief
Justice, but had to give it up, being too tired for
serious intellectual work after sitting six hours a
day in court. 1 When I read the record of such a
strenuous life as that of the late Lord Selborne,
who, after pleading all day in court, his mind on
full stretch, had sometimes to sit up the whole
night to master a case, my wonder is not that he
should go astray on the question of the Advertise-
ments of 1566, but that he should know as much
of ecclesiastical history as he did. The Judicial
Committee of the Privy Council usually consist
of retired judges, or judges borrowed from other
1 Auckland Correspondence, i. 382.
xxxvi INTEODUCTION
courts, and retired officials from India and the
Colonies. What can such men know, however
great their ability and their skill in matters
with which they are conversant, about such ques-
tions as those discussed in this book ? Such
knowledge is not obtained by the light of nature,
nor can it be acquired in a few days. Is it not
probable that an ordinary person of average ability
and education, who has made a special study of
such questions, is more likely to arrive at right
conclusions than a lawyer, however eminent, who
has never studied them at all ?
Indeed I am inclined to think that the study
of the common law has a tendency to mislead
rather than assist a common law judge in adjudi-
cating in ecclesiastical cases. Burke says that
'no man comprehends less the majesty of the
Constitution than the nisi prius lawyer, who is
always dealing with technicalities and precedents/
Whether that be true or not as regards constitu-
tional law, it can hardly be doubted that it holds
good in the case of ecclesiastical law. The prin-
ciples and doctrines of these two branches of the
law are different, if not mutually antagonistic.
The principle underlying ecclesiastical law is tradi-
tional belief, sanctioned by Church authority, and
enshrined in the common law of Christendom.
The principle of secular law is national opinion
enshrined from time to time in positive enact-
ments, and therefore changing according to the
INTEODUCTION xxxvii
varying moods of the national sentiment and
temper. The former accordingly retains the old
doctrine and ritual where it has not been expressly
altered ; the latter holds, on the contrary, that
1 omission is prohibition.' The former principle is
laid down very authoritatively by the Church of
England. The canon of 1571 concerning preachers
enjoins the clergy ' never to preach anything to be
religiously held and believed by the people except
what is agreeable to the doctrine of the Old or
New Testament, and which the Catholic Fathers
and bishops have collected from that doctrine/
The thirtieth canon of 1603 explains the rationale
of the canon of 1571. After defending against the
Puritans the use of the sign of the cross in baptism,
the canon proceeds to lay down as follows the
general principle underlying the appeal of the
English Church to antiquity :
Thirdly, it must be confessed that in process of time
the sign of the cross was greatly abused in the Church
of Borne, especially after that corruption of Popery had
once possessed it. But the abuse of a thing doth not
take away the lawful use of it. Nay, so far was it
from the purpose of the Church of England to forsake
and reject the Churches of Italy, France, Spain, Germany,
or any such-like Churches, in all things which they held
and practised, that, as the Apology of the Church of
England confesseth, it doth with reverence retain those
ceremonies which do neither endamage the Church of
God, nor offend the minds of sober men; and only
departed from them in those particular points wherein
they were fallen both from themselves in their ancient
xxxviii INTRODUCTION
integrity, and from the Apostolical Churches which were
their first founders.
Lastly, the use of the sign of the cross in haptism,
being thus purged of all Popish superstition and error,
and reduced in the Church of England to the primary
institution of it, upon those true rules of doctrine con-
cerning things indifferent, which are consonant to the
Word of God and the judgment of the ancient Fathers,
we hold it the part of every private man, both minister
and other, reverently to retain the use of it prescribed by
public authority.
This constitutional doctrine was confirmed by
Act of Parliament in the year 1559, which says
emphatically that ' such person or persons ' as may
hereafter f have or execute any jurisdiction, power,
or authority spiritual . . . shall not in any wise have
authority or power to order, determine, or adjudge
any matter or cause to be heresy, but only such
as heretofore have been determined, ordered, or
adjudged to be heresy, by the authority of the
Canonical Scriptures, or by the first four general
councils, or any of them, or by any other general
council wherein the same was declared heresy by
the express and plain words of the said Canonical
Scriptures, or such as hereafter shall be ordered,
judged, or determined by the High Court of Parlia-
ment of this realm, with the assent of the clergy
in their Convocation/ l
The reader will find, by looking at Appendix A,
that my principal examiners on the Eoyal Com-
1 1 Eliz. c. 1.
INTKODUCTION xxxix
mission brushed all this aside as irrelevant. They
repudiated, as entirely outside the province of their
inquiry, the idea of a common law of Christendom
in doctrine and ceremonial by which the Church
of England was confessedly bound in matters which
were not expressly abrogated. The questions put
to me by Sir Lewis Dibdin, Sir Edward Clarke,
and Dr. Gibson are saturated with that fallacy,
and it pervades all the decisions of the Judicial
Committee. In fact the principle of interpretation
adopted when the Judicial Committee was sub-
stituted for the Court of Delegates was nothing
less than a revolution in the English Constitution,
as it was settled by the statute of ' The Eestraint
of Appeals,' 1 which laid down in clear and noble
language the respective domains of the ecclesias-
tical and civil judicatures and their mutual rela-
tions. Here is the preamble, which cannot be
abridged without spoiling it :
Where, by divers sundry old authorities, histories, and
chronicles, it is manifestly explained and expressed that
this Realm of England is an empire, and so hath been
accepted in the world, governed by one supreme head
and king, having the dignity and royal estate of the
imperial crown of the same ; unto whom a body politic,
compact of all sorts and degrees of people, divided in
terms and by names of spiritualty and temporalty, ben
bounden and owen to bear, next to God, a natural and
humble obedience : he being also institute and furnished
by the goodness and sufferance of Almighty God with
1 24 Hen. VIII. c. 12.
xl INTKODUCTION
plenary, whole, and entire power, preeminence, authority,
prerogative, and jurisdiction, to render and yield justice
and final determination to all manner of folk, residents,
or subjects within this his Eealm, in all causes, matters,
debates, and contentions happening to occur, insurge, or
begin within the limits thereof, without restraint or pro-
vocation to any foreign princes or potentates of the world :
the body spiritual whereof having power, when any cause
of the law divine happened to come in question, or of
spiritual learning, then it was declared, interpreted, and
shown by that part of the said body politic called the
spiritualty, now being usually called the English Church,
which always hath been reputed, and also found of that
sort, that both for knowledge, integrity, and sufficiency
of number, it hath been always thought, and is also at
this hour, sufficient and meet of itself, without the inter-
meddling of any exterior person or persons, to declare and
determine all such doubts, and to administer all such
offices and duties, as to their rooms spiritual doth apper-
tain : for the due administration whereof, and to keep
them from corruption and sinister affection, the king's
most noble progenitors, and the antecessors of the nobles
of this Eealm, have sufficiently endowed the said Church
both with honour and possessions : and the law temporal,
for trial of property of lands and goods, and for the
conservation of the people of this Realm in unity and
peace, without ravin or spoil, was and yet is adminis-
tered, adjudged, and executed, by sundry judges and
ministers of the other part of the said body politic, called
the temporalty : and both their authorities and juris-
dictions do conjoin together in due administration of
justice, the one to help the other.
This settlement lasted in its main features down
to the Acts of 1832 and 1833 which established
INTBODUCTION xli
the Judicial Committee on its present basis, and
thereby destroyed completely the ecclesiastical
judicature and put a purely secular tribunal in
its place. And, as if this were not enough, the
Judicial Committee has been so manipulated in
practice that its procedure in ecclesiastical causes
constitutes a gross violation of one of the funda-
mental principles of British justice. It now claims,
for the sake of policy, a dual character, which is
not only inconsistent with its origin, but is
destructive of one's elementary conception of
justice in addition. It claims to be both a consul-
tative body and a Final Court of Appeal : claims
which are mutually destructive. After the Ridsdale
case in 1877 Lord Cairns, who was then Lord
Chancellor, finding that it became known that the
judges were not unanimous in their decision, issued
an Order in Council imposing silence and secrecy
on the members of the Judicial Committee, on the
ground that the Committee was a consultative
body and not a court exercising judicial jurisdic-
tion. 1 The late Lord Selborne defended this
rule by anticipation in a debate in the House of
Commons in 1867. His words are :
I now come to the Judicial Committee of the Privy
Council. This is a very eminent tribunal. . . . The
Court undoubtedly has worked well, and I cannot but
1 See speech by Lord Cairns in a debate on the Judicial Committee
on April 80, 1872 : Beyond all doubt the Judicial Committee has no
jurisdiction, and is only a consultative body.' Surely this raises the
xlii INTRODUCTION
think it in some respects a model of what a good Supreme
Court of Appeal ought to be. ... It gives judgment by
the mouth of a single judge, usually well considered, and
written or even printed, and suppresses the difference of
views which may possibly exist among the members of
the tribunal. I cannot but think the practice of the
Judicial Committee in that respect a wise one, giving the
authoritative judgment of the Court, from which there is
no further appeal, without the expression of individual
opinions calculated to detract from or neutralise its
authority.
This is an amazing allegation from an eminent
Equity lawyer, who became soon afterwards Lord
High Chancellor. If the suppression of ' difference
of views ' on the part of the Judicial Committee
be a ' wise ' thing, forming ' a model of what a good
Supreme Court of Appeal ought to be/ one may
ask in wonder why this mark of model wisdom
should not characterise all our courts of law. Not
long after this, Lord Selborne himself, in con-
junction with Sir John (afterwards Lord) Coleridge
and Dr. Deane, gave the following opinion on the
supremacy of the Crown and its power over causes
in the courts of common law :
The Crown is supreme over all causes ecclesiastical in
the same, and in no other sense, and to no greater extent
than the Crown is supreme over causes temporal, and by
question whether the so-called judgments of the Judicial Committee
have any coercive validity. How can the Committee be ' only a
consultative body' and a final court of supreme jurisdiction? But
that is what it claims to be. In truth there is no end to the labyrinth of
confusion in which this hybrid tribunal has involved the course of justice.
i
INTKODUCTION xliii
means of the various courts of law. The Submission of
the Clergy Act made it lawful for the parties grieved by
any decision of an ecclesiastical judge to appeal to the
King in Chancery, for which Court of Appeal the Judicial
Committee of the Privy Council is now substituted. This
is an appellate jurisdiction.
When the custom of suppressing individual
opinions in the Judicial Committee came before a
Committee of the House of Lords in 1872, Lord
Westbury, one of the ablest lawyers who ever sat
on the woolsack, declared bluntly that the practice
which Lord Selborne had eulogised in the House
of Commons namely, the delivery of a judg-
ment as the unanimous opinion of the court
when it was not so was ' inconsistent with the
truth.'
Lord Cairns's Order in Council on February 4,
1878, imposing silence and secrecy on the judges
of the Judicial Committee, was a revival of one of
the worst precedents of Stuart despotism : namely,
the Order in Council of 1627, which suppressed
differences of opinion among the members of the
Council. It is alien from the whole genius of
British justice and antagonistic to the practice and
precedents of our courts. The whole subject was
treated exhaustively by a Committee of the House
of Commons in connection with the trial of Warren
Hastings. The Eeport of the Committee, which
was written by Burke, and supported by the
opinions of the most distinguished members of
xliv INTBODUCTION
both Houses of Parliament and of all the judges
who were consulted in the matter, is so luminous,
and so pertinent to my complaint against the
Judicial Committee, that I will venture to make
some extracts from it as follows :
Upon the soundest and best precedents the Lords
have improved on the principles of publicity and equality,
and have called upon the parties severally to argue the
matter of law previously to a reference to the judges ;
who, on their parts, have afterwards in open court, 1
delivered their opinions, often by the mouth of one of the
judges, speaking for himself and the rest, and in their
presence : and sometimes all the judges have delivered
their opinion seriatim (even when they have been unani-
mous in it), together with their reasons upon which their
opinion has been founded. This, from the most early
times, has been the course in all judgments in the House
of Peers. Formerly even the record contained the reasons
of the decision. ' The reason wherefore ' (said Lord Coke)
' the records of Parliaments have been so highly extolled
is that therein is set down, in cases of difficulty, not only
the judgment and resolution, but the reasons and causes
of the same by so great advice.'
Upon a point of law in the trial of Lord Straf-
ford ' the judges delivered their opinion, and each
argued it (though they were all agreed) seriatim
and in open court. 1
Again :
Your Committee do not find any positive law which
binds the judges of the Courts in Westminster Hall
1 Here and elsewhere in these extracts the italics are Burke's.
INTRODUCTION xlv
publicly to give a reasoned opinion from the bench in
support of their judgment upon matters that are stated
before them. But the course hath prevailed from the
oldest times. It hath been so general and so uniform
that it must be considered as the law of the land. It has
prevailed, so far as we can discern, not only in all the
courts which now exist, whether of law or equity, but in
those which have been suppressed or disused, such as
the Court of Wards and the Star Chamber. An author,
quoted by Kush worth, speaking of the constitution of that
Chamber, says, ' and so it was resolved by the judges on
reference made to them ; and their opinion, after deliberate
hearing and view of former precedents, teas published in
open court. 1 It appears elsewhere in the same compiler
that all their proceedings were public, even in deliberating
previous to judgment. The judges in their reasonings
have always been used to observe on the arguments
employed by the counsel on either side, and on the
authorities cited by them, assigning the grounds for re-
jecting the authorities which they reject, or for adopting
those to which they adhere, or for a different construction
of law, according to occasion. This publicity, not only
of decision but of deliberation, is not confined to these
several courts, whether of law or equity, whether above
or at nisi prius, but it prevails where they are assembled,
in the Exchequer Chamber or at Serjeants' Inn, or
wherever matters came before the judges collectively for
consultation and revision. It seems to your Committee
to be moulded in the essential frame and constitution of
British judicature. Your Committee conceives that the
English jurisprudence has not any other sure foundation,
nor consequently the lives and property of the subject any
sure hold, but in the maxims, rules, and principles, and
juridical traditionary line of decisions contained in the
notes taken, and from time to time published (mostly
under the sanction of the judges), called reports.
xlvi INTBODUCTION
Again :
To give judgment privately is to put an end to reports,
and to put an end to reports is to put an end to the law
of England. It was fortunate for the Constitution of this
Kingdom that, in the judicial proceedings in the case of
shipmoney, the judges did not venture to depart from
the ancient course. They gave and they argued their
judgment in open court. Their reasons were publicly
given, and the reasons assigned for their judgment took
away all its authority. 1 The great historian, Clarendon,
at that time a young lawyer, has told us that the judges
gave as law from the bench what every man in the hall
knew not to be law.
Once more :
Your Committee is of opinion that nothing better
could be devised by human wisdom than argued judgments,
publicly delivered, for preserving unbroken the great
traditionary body of the law, and for marking, whilst that
great body remained unaltered, every variation in the
appreciation and the construction of particular parts ; for
pointing out the ground of each variation, and for enabling
the learned of the Bar, and all intelligent laymen, to
distinguish those changes made for the advancement of
a more solid, equitable, and substantial justice, according
to the variable nature of human affairs, a progressive
experience and the improvement of moral philosophy,
from those hazardous changes in any of the ancient
opinions and decisions which may arise from ignorance,
from levity, from false refinement, from a spirit of inno-
1 I believe that I have shown in the course of this work that this
criticism is exactly applicable to the ecclesiastical judgments of the
Judicial Committee in so far as the reasons for them have been
published.
INTRODUCTION xlvii
vation, or from other motives of a nature not more
justifiable. 1
Previously to Lord Cairns's Order in Council
forbidding the publication of any differences of
opinion on the part of the judges in the Judicial
Committee, it was optional with that court to pub-
lish such differences or not. Even that was most
objectionable, and was severely condemned by
Lord St. Leonards, whom the late Chief Baron
Fitzroy Kelly, in his trenchant criticism on Lord
Cairns's Order, calls ' the most learned and able
lawyer of this (the nineteenth) century, and the
judge of the longest experience among the judges
of the present age.' The Chief Baron quotes the
following solemn declaration by Lord St. Leonards :
Now, for myself, I would not sit upon any appeal or
any court in the kingdom if I were not at liberty to
express the opinion which I entertain ; and I am clearly
of opinion that the law never can flourish as a science
unless the judge is permitted to do so. . . . Could that
be endured ? Would any man do it ? Ought it to be
done?
The Chief Baron adds : < The learned lord kept
his word to the end of his life, and never once, after
delivery of these opinions, sat as a Privy Coun-
cillor in the Judicial Committee. I would further
say that he often expressed these sentiments, in
reference to the Judicial Committee, in private
1 Burke's Works, viii. 55, 56, 63, 64, Kivington's edition.
C
xlviii INTRODUCTION
conversation with myself, during the last ten years
of his life.' l
The last unfortunately, as I presume to think
of the Chief Barons quotes Lord Brougham,
who established the Judicial Committee, as saying
that the advocates of the suppression of the differ-
ences of opinion on the part of the judges ' forget
the compensation which is afforded in respect
of responsibility itself from the watchful eyes of
brother judges ; a tribunal fully more formidable
than the public or even the Bar, and a tribunal
whose members must needs know a great deal
more intimately than any spectators the errors
and negligences of each other . . . The same
reasoners forget the security which is afforded,
and may always be obtained, against improper
judicial appointments, or inefficient judicial exer-
tions, by requiring each judge to give, either
always or in rotation, his reasons, and still more
by requiring on great questions that these reasons
be reduced to writing.' This course of proceeding,
which he recommends, was adopted while Lord
Brougham presided over the Judicial Committee.
Where a difference of opinion existed it was always
avowed. And therefore, as Chief Baron Fitzroy
Kelly says, 'Lord Brougham must have agreed
with Lord Westbury that to state a judgment or
opinion to be the judgment or opinion of their
1 ' A Letter to the Lord High Chancellor upon the late Order in
Council of the 4th of February, 1878,' p. 49.
INTRODUCTION xlix
lordships is really not consistent with the truth,
unless it be unanimous ; and when there is a diffe-
rence of opinion that it can be described only as
the judgment of " the majority. " And if this be so,
to declare that a judgment is the judgment of their
lordships is really to declare, if the words are read
and interpreted according to their natural mean-
ing, that which is absolutely untrue in fact. And
though indeed men may differ as to the meaning of
words, if the Lord Chancellor of the day happens
himself to dissent from the judgment which he is
called upon to pronounce as the organ and chief of
the court, I cannot understand how he can declare
with a safe conscience that " their lordships " (and
not a majority of their lordships) " are of opinion
that the appeal " (as it may be) " should be allowed
or dismissed."
In accordance with these sentiments Lord
Chief Baron Kelly repudiated with indignation
Lord Chancellor Cairns's Order in Council, accusing
of violation of oath and of duty to the Sovereign
any Privy Councillor who divulged differences of
opinion among the members of the court. After
declaring that Lord Cairns's Order in Council in
effect < stigmatised as the violators of their duty
and of their oaths ' ' no less than seven prelates,
including in their number five archbishops, and
nineteen judges, including five who had attained
the office of Lord High Chancellor/ the Chief
Baron proceeds :
c2
1 INTRODUCTION
My Lord, I myself should shrink with unfeigned
humility from even the mention of my name in the same
category with these eminent and distinguished personages,
but I, who must upon the same ground have been guilty
likewise of this violation of my duty to my Sovereign and
my oath of secrecy in my office of Privy Councillor, have
to defend myself against the stigma thus cast upon me,
and the dishonour which it would attach to my name ;
for I have at many times and in many places, since the
judgment in the Eidsdale case was delivered, freely,
openly, and publicly stated that I, with two other Privy
Councillors (one of them perhaps the most learned and
experienced in ecclesiastical causes among living men),
and without ever dreaming that I was violating my duty
to my Sovereign and my oath of office that I and these
two eminent Privy Councillors had dissented from the
judgment of the majority.
The question is a very important one, and may
become a very acute one on the publication of the
Report of the Royal Commission on Ecclesias-
tical Discipline. I offer no apology, therefore, for
making one more quotation from Chief Baron
Kelly's pamphlet. He was leading counsel in the
case of Westerton v. Liddell, and had studied the
question with great care, as I know personally, for
I enjoyed the privilege of his friendship and often
talked those matters over with him. Like all men
who plead for justice to an unpopular party, Lord
Chief Baron Kelly was himself accused of being
a Ritualist ; to which he made reply : ' I am quite
aware of the prejudice which not unnaturally
exists in the minds of many eminent and excellent
INTEODUCTION li
persons against what is called " Ritualism/* I
have myself been called a " Ritualist " ; but I am
no more a Ritualist than I am a Mohammedan or
a Russian. I have seen with regret that in some
churches what are called the High Church clergy
have indulged in excesses, in what I myself have
thought mere matters of form, in the performance
of divine service,' with more to the same effect.
But he failed to see that the unpopularity of certain
practices and ceremonies had anything whatever
to do with their legality ; and he recognised the
insuperable difficulties which the judgments of the
Judicial Committee created for the clergy. For
instance :
But here a new danger arises. Let me again take
the case of Mr. Bidsdale as example. He finds from the
judgment of their lordships that it is unlawful to wear
the vestments mentioned in the alleged Bubric, and is
desirous of knowing upon what authority that judgment
rests, inasmuch as he knows that it is his duty, on the
one hand, to obey the law, and he feels that it is his duty
also, and he believes a higher duty, to observe the Articles
of Beligion and conform in all things to the true doctrines
of the Church of England in the performance of Divine
Service ; and he conscientiously believes that it is his
duty to wear these vestments at a particular period of the
Service, on these grounds. Some twelve years ago the
questions about these vestments having arisen, but having
as he and many other Ministers of the Gospel, Privy
Councillors, and Judges supposed, been definitely settled
in favour of the right, if not the duty, to wear these
vestments, by what fell from the Judges in the case of
lii INTEODUCTION
Wester ton v. Liddell, but also because, the question having
been revived, a body of the clergy submitted a case to
some seven or eight of the most eminent men at the Bar
of England upon this very question, including (I would
omit to mention myself, though I was one consulted) the
late Lord Chief Justice Bovill, the present Chief Justice
of the Common Pleas, Lord Coleridge, Sir Eobert Philli-
more, Sir James Hannen, now Judge of the Divorce
Court, and Lord Justice James, now all Privy Councillors ;
and to these were added Dr. Deane, Q.C., Mr. Prideaux,
Q.C., and Mr. J. Cutler, Professor of Law, King's College ;
and all, without any approach to a doubt, advised that the
Eubric was as much a part of the Prayer-Book, and made
law by the Act of Parliament, as the Lord's Prayer, the
Creeds, or the Litany ; and as affecting the obligatory
nature of the Kubric, to this may be added that part of
the judgment of your Lordships in the Kidsdale case, in
which it was held that this Eubric, if law at all, was
imperative or obligatory. If, in the perplexity and diffi-
culty in which Mr. Eidsdale was thus placed, he had
appealed to your Lordship or any member of the Privy
Council, praying to be informed upon what weight of
authority this judgment rested, seeing that he was called
upon on the one hand to obey the law, and so to do
violence to his conscience, or, on the other hand, rather
than violate what he believed to be a paramount duty, to
continue to wear the vestments, and so to expose himself
to another prosecution, and ultimately to privation,
which to him would be destitution and ruin, or to resign
his benefice, which would have the same effect ; if in
this state of things he had appealed, as I have observed,
to any member of the Privy Council, the answer to him,
if indeed he had been fortunate enough to obtain an
answer, must have been : ' Our judgment makes the law,
and you are not to know, and we are forbidden to tell,
whether the judgment was unanimous or whether, as it
INTBODUCTION liii
may be, the Lord Chancellor and Lord Selborne and all
of the highest authority in the Council were not in the
minority and overruled by half a dozen judges, who,
though eminent and most learned in the law, were wholly
unfamiliar with these ecclesiastical and doctrinal questions,
which you of the Church have studied throughout the
greater part of your lives.'
Add to this that the Lord Chancellor of the
day may, at his discretion, pack the Committee
with partisans of his own religious opinions, so as
to secure a judgment in favour of his own views
and prejudices. In his work on the British Con-
stitution l Lord Brougham, who remodelled the
Judicial Committee in 1833, says :
The Judges, four at least, and there are seldom more,
take the causes in rotation, as virtually presiding, and
each in his turn thus draws up the judgment with the
reasons and communicates it to the others, who make
such alterations as they think fit, and when all are agreed
it is delivered as the judgment of the Court ; or, if they
differ, as that of the majority.
In secular matters the procedure of the Judicial
Committee, described by Lord Brougham, has
generally been followed; the judges have sat by
rotation and delivered their judgment in each case
as that of the majority alone when there has been
a difference of opinion. In ecclesiastical appeals
the court is now usually constituted by the nomi-
nation of the Lord Chancellor, who may thus, from
1 P. 378.
liv INTRODUCTION
motives of policy and what he may conceive to be
the interest of the Church or State, form a court
ad hoc to carry out a particular policy. And since
Lord Cairns's Order in Council of February 4, 1878,
the Judicial Committee has ceased to be even a
judicial tribunal, and is now a consultative body
only, deliberating in secret and suppressing any
differences of opinion among its members. It is
therefore possible that the court may be equally
divided in opinion and the majority may be consti-
tuted by the casting vote of the President, while
the minority thus artificially created may in
authority and learning far outweigh the ofiicial
majority. But this is concealed from the public.
We should not have known without Chief Baron
Fitzroy Kelly's revelation that himself and two
other members of the court, ' one of them perhaps
the most learned and experienced in ecclesiastical
causes among living men/ dissented from the
judgment in the Eidsdale case. I venture to think
that in no other matter would the anomalous con-
stitution of the Judicial Committee and its despotic
procedure, borrowed from one of the most arbitrary
periods of English history, be endured. But any-
thing appears to be considered good enough as an
ecclesiastical tribunal. As a matter of fact, the
Judicial Committee has forfeited its title to the
appellation of ' judicial ' since it declared itself to
be a consultative body without jurisdiction. Is it
not monstrous that, in order to find an excuse for
INTRODUCTION Iv
suppressing differences of opinion among its mem-
bers, the court should declare itself to be not a
court at all, yet issue judgments which all con-
cerned are bidden to obey without appeal on pain
of being denounced and punished as law-breakers.
For the reasons, then, which I have given in
this Introduction, and for others stated in the body
of this volume, I submit that the Judicial Com-
mittee has proved itself utterly incompetent as a
Final Court of Appeal in ecclesiastical causes.
Policy, prejudice, unconscious bias, ignorance, have
presided over its ecclesiastical judgments. The
late Bishop Stubbs, with his passion for justice
and his reverence for historical truth, did not hesi-
tate, in a letter to a friend (afterwards published),
to accuse the Judicial Committee of ' deliberate
falsehood ' in its ecclesiastical decisions. So im-
possible did it seem to such a master of historical
erudition to explain in any other way the violent
perversions of history which have usually character-
ised the judgments of that august tribunal. I have
never made such an accusation myself, because my
experience has taught me that an inveterate preju-
dice has power to blind the mind to the plainest
facts. But it is well to bear in mind the impres-
sion which the proceedings of the Judicial Com-
mittee have made on a mind so competent and so
fair and impartial as that of Dr. Stubbs. Two
extracts from letters of Mr. Gladstone to Bishop
Wilberforce will show that those proceedings made
Ivi INTRODUCTION
an equally painful impression on his mind. For
example :
Two things are pretty plain : the first, that not only
with executive authorities, but in the sacred halls of
justice, there are now two measures, and not one, in use :
the strait one for those supposed to err in believing too
much, and the other for those who believe too little.
The second, that this is another blow at the dogmatic
principle in the Established Church : the principle on
which as a Church it rests, and on which as an Establish-
ment it seems less and less permitted to rest.
Again :
It is neither disestablishment, nor even loss of dog-
matic truth, which I look upon as the greatest danger
before us, but it is the loss of those elementary principles
of right and wrong on which Christianity itself must be
built. The present position of the Church of England
is gradually approximating to the Erastian theory, that
the business of an Establishment is to teach all sorts of
doctrines and to provide for ordinances for all sorts of
people, to be used at their own option. It must become,
if uncorrected, in lapse of time a thoroughly immoral
position. 1
I am ignorant, of course, of the character of the
Eeport about to be presented by the Eoyal Com-
mission on Ecclesiastical Discipline, and of the
recommendations which the Commission may make.
But of one thing I am very sure : namely, that
peace cannot be restored to the Church till there
is an end made of enforcing the judgments of the
1 Life of Bishop Wilberforce, ii. 353.
INTBODUCTION Ivii
Judicial Committee as the law of the Church, and
until another tribunal has been substituted for that
discredited court. The principle and pledge incor-
porated in 24 Hen. VIII. c. 12, which was rashly
abolished when the Court of Delegates was super-
seded by the Judicial Committee, must be restored
and redeemed. 'When any cause of the law
divine happens to come in question, or of spiritual
learning,' it must be ' declared, interpreted, and
shown by that part of the body politic called
the spiritualty.' And in case the Courts of the
Bishops and Archbishops failed to do justice,
25 Hen. VIII. c. 19 (The Submission of the Clergy
and 'Restraint of Appeals) provided an appeal to
the King in Chancery. 1 I quote the words :
And for lack of justice in the Courts of the Arch-
bishops of this realm, or in any the King's dominions,
1 Not to the King in Council, as has been sometimes erroneously
alleged, e.g. in Brodrick and Fremantle's Ecclesiastical Judgments
of the Privy Council, p. 4 : ' The claim to hear final appeals in
matters ecclesiastical, being preeminently one of the original pre-
rogatives of the Crown, is, as such, naturally exercised by the King in
Council.' On the contrary, the King in Council has never exercised
judicial jurisdiction of any kind. Down to 1832, when the Court of
Delegates was abolished, not a single case exists of an appeal to
the King in Council in ecclesiastical causes. It was invariably to the
King in Chancery. The difference is fundamental. For in Chancery
the King exercised his prerogative as the fountain of justice through a
Court of Delegates, the majority of whom were necessarily ecclesiastics,
or ecclesiastical lawyers : that is, laymen learned in both canon and
civil law. The Judicial Committee, establishing an appeal to the King
in Council besides its proved incompetence in other respects was
thus surreptitiously a violent infringement of the two great Reforma-
tion statutes, The Restraint of Appeals, and The Submission of the
Clergy and Restraint of Appeals.
Iviii INTRODUCTION
it shall be lawful for the parties grieved to appeal to the
King's Majesty in the King's Court of Chancery, and that
upon every such appeal a commission shall be directed
under the Great Seal to such persons as shall be named
by the King's Highness, his heirs or successors, like as in
case of appeal from the Admiral's Court, to hear and
definitely determine such appeals and the causes con-
cerning the same. Which Commissioners, so by the
King's Highness, his heirs or successors, to be named or
appointed, shall have full power and authority to hear
and definitely determine every such appeal, with the
causes and all circumstances concerning the same; and
that such judgment and sentence as the said Commis-
sioners shall make and decree, in and upon such appeal,
shall be good and effectual, and also definitive ; and no
further appeals to be had or made from the said Commis-
sioners for the same.
This is quite plain. The members of the Court
of Delegates appointed to hear appeals in ecclesias-
tical causes were to be ' like as in cases of appeal
from the Admiral's Court. 7 In other words, as the
members appointed to hear appeals in Admiralty
cases must be persons skilled in Admiralty law, so
persons delegated to hear appeals in ecclesiastical
cases must be persons skilled in ecclesiastical law ;
ordinarily, bishops or ecclesiastical dignitaries of
requisite learning ; or, after the Act allowing lay-
men to be ecclesiastical judges, trained ecclesias-
tical lawyers.
There is an ignorant prejudice against eccle-
siastical courts. But surely it stands to reason
that judges in ecclesiastical affairs should be men
INTRODUCTION lix
learned in ecclesiastical law and history. It is so in
Scotland. There is no appeal from the ecclesiastical
courts there so long as they act within the limits
of their jurisdiction and consticutional powers;
and that system works well.
In truth this division of labour has been at
least till lately the rule in all branches of our
judicature. Let us hear Lord Coke :
As every court of justice hath laws and customs for
its direction, some by the common law, some by the civil
and canon law, some by peculiar laws and customs, &c. ;
so the High Court of Parliament suis propriis le gibus et
consuetudinibus subsistit. It is by the lex et consuetude
parliamenti that all weighty matters in any parliament
moved, concerning the peers of the realm, or commons
in parliament assembled, ought to be determined, ad-
judged, and discussed by the court of parliament, and
not by the civil law, nor yet by the common law of this
realm used in inferior courts. This is the reason that
judges ought not to give any opinion of a matter of
parliament, because it is not to be decided by the
common laws, but secundum leg em et consuetudinem
parliamenti ; and so the judges in divers parliaments have
confessed. l
When, in the year 1586, some Puritan members
of the House of Commons sought to invade the
domain of the spiritualty, the Queen sent them a
peremptory refusal by the mouth of the Lord
Keeper, on the ground that l if anything were
amiss it appertaineth to the clergy more properly
1 Inst. 4, p. 15.
Ix INTRODUCTION
to see the same redressed.' In enforcing this royal
message the Lord Keeper quoted the proverbial
warning : Unicuique in sua arte credendum. Quam
quisque novit artem, in hac se exerceat. Navem
agere ignarus navis timet. This rule of ' every man
to his art ' prevails in all departments of the State
except in the present administration of the law of
the Church of England. The army, the navy, and
the Established Church of Scotland, all have their
own independent tribunals. Yet any haphazard
pilot, though he may never have looked into a chart,
and be quite incapable of taking a nautical observa-
tion, is considered perfectly qualified to navigate
the good ship of the Church of England through all
the dangers of the deep. But for the ' Divinity
that shapes our ends,' she must have suffered
shipwreck long ago.
It is not a question of the ability or integrity
of the judges, but of their knowledge. Let as look at
the composition of the Judicial Committee as com-
pared with the Court of Delegates which it super-
seded. From 1534 to 1832 the Sovereign, acting
through the Lord Chancellor, who must be a pro-
fessed member of the Church of England, selected
delegates from all England, including learned
clergy or ecclesiastical lawyers learned in common
law and ecclesiastical history. By the existing
law the Lord Chancellor, or the President of the
Council, who need not even be a Churchman,
chooses out of a body of about thirty a quorum
INTRODUCTION Ixi
who need not be more than three, and not one of
whom is obliged to be a Churchman. Ecclesiastics
are excluded from the court by law, and ecclesias-
tical lawyers by necessity. For the race of eccle-
siastical lawyers came to an end as a branch of
the law on the extinction of Doctors' Commons.
As regards its judiciary, therefore, the position of the
Church of England is anomalous and unique among
religious bodies. A final court of appeal has been
imposed upon her without her consent, not a single
member of which is obliged to be a Churchman.
Her doctrines and ritual are under the control of a
quorum of three of the Judicial Committee ; and not
only so, but the whole quorum may and are likely
to be quite ignorant of the questions on which
they are called upon to give a final decision. But
if they were all of necessity Churchmen it would
make very little difference as to their competence.
Let me put a favourable case.
Sir Edward Clarke is a sincere Churchman,
a most able man, a brilliant advocate with a great
reputation at the Bar, accomplished, conscientious ;
yet if any of my readers who understand these
questions will look at Sir Edward Clarke's exami-
nation of me (see Appendix A, pp. 328-339) they
will, I think, agree with me that this distinguished
lawyer is rather impeded than aided by his practice
at the Bar in arriving at right conclusions on
questions of ecclesiastical law. He recognises no
common law of Christendom in doctrine and ritual
Ixii INTEODUCTION
though it is plainly laid down by the existing
statute and canon law. He insisted on my giving
him c a definite rule ' as to ritual and ceremonial
observances, ' mandatory and not permissive.'
When I answered that in the sixteenth century
' a standard was adopted which legalised every-
thing within that standard, but something less
was permitted because it was very difficult, if not
impossible, in some cases to bring all the clergy up
to the standard,' he retorted, c Never mind what
was the case at that time.' He could see no
difference between ' a definite mandatory rule ' and
leaving c everybody free to do as he liked.' He
brushed aside, with an ' Oh, no,' my assertion that
in the sixteenth century the Eoyal assent to a Bill
by Commission put an end to the session unless
special provision was made to the contrary. Yet
what Sir Edward Clarke thus waved aside is an
undoubted fact. He insisted that the disuse of
the Bucharistic vestments proved their illegality,
although it is an accepted maxim even of the
common law that desuetude is not repeal, and that
no statute can be abrogated except by a subsequent
statute which repeals the former absolutely, or by
necessary implication. And when I reminded him
of the disuse of the cope, which nevertheless the
Judicial Committee on two occasions pronounced
not only legal, but obligatory, Sir Edward said, f I
assure you that I do not find any difficulty about
the cope.' The law and practice of Elizabeth's
INTRODUCTION Ixiii
reign, he said, ' has nothing to do with it.' He
must have an instance of some clergyman wearing
a chasuble since 1662, when the last Act of Uni-
formity was passed, sanctioning the present form
of the Ornaments Eubric ; forgetting that the
Convocation and Legislature of 1661-2 were simply
and avowedly restoring the old law, not making a
new one. I reminded him that the present form
of the rubric was framed by Cosin, and that Cosin
has declared emphatically that the intention of
the rubric was to restore the disused vestments.
But all in vain. Nothing short of positive evi-
dence that the vestments had been worn since 1662
would satisfy Sir Edward Clarke. Some persons
who have not gone deep into the question date the
origin of the Church of England from the reign of
Henry VIII. ; others from the reign of Edward VI.,
or Elizabeth ; and refuse to recognise any doctrine
or ritual as legal which precedes those dates. Sir
Edward Clarke draws the line at 1662, and will
not recognise any custom or law of the English
Church of an anterior date. That mental attitude,
natural to a lawyer of Sir Edward's branch of the
profession, and characteristic of the Judicial Com-
mittee, is a positive disqualification for sitting in a
Court of Appeal in ecclesiastical causes.
Now I hold that the use or non-use of the
Eucharistic vestments since 1662, or even since
1559, has nothing to do with their legality. The
cope went completely out of use, even in cathedrals ;
d
Ixiv INTRODUCTION
yet the Judicial Committee has declared that its
use is still obligatory in law. Let it be re-
membered that the Eucharistic vestments were
only used at the celebration of the Holy Com-
munion, which was a rare event from the middle
of Elizabeth's reign till the Kestoration : generally
once a quarter, in many places only once a year ;
even in cathedrals only once a month. The
tradition of the vestments thus died out in most
parishes in England even before the death of
Charles I. The Commonwealth made a clean
sweep of all church ornaments, and at the Bestora-
tion the Church found herself empty and desolate.
Laud, strong-willed as he was, found it impossible
to restore the general use of the surplice in any
ecclesiastical ministrations, and it was not restored
universally before the Tractarian movement. The
Eoyal Commissioners appointed in 1689 to revise
the Prayer-Book recommended that the use of
the surplice should be made optional. 'If any
minister/ says the Eeport of the Commissioners,
' should come and declare to his bishop that he
cannot satisfy his conscience in the use of the
surplice in divine service, in that case the bishop
shall dispense with his using it ; and if he shall
see cause for it, he shall appoint a curate to
officiate in a surplice.'
Fancy a parish in which the incumbent ob-
jected to the surplice and was dispensed from its
use, but was assisted by a curate clothed in sur-
INTEODUCTION Ixv
plice, to satisfy such parishioners as desired that
garment! And the Commission which recom-
mended that piebald piece of ritualism consisted
of one Archbishop and nine Bishops, in addition to
the Deans of St. Paul's, Canterbury, Peterborough,
Winchester, Norwich, and of Christ Church ; in
addition also to two Eegius Professors from Oxford
and one from Cambridge, as well as the Master
of Trinity and five archdeacons, besides five
prebendaries. Fortunately, Convocation rejected
the recommendations of the Commissioners and
saved the Church from a grotesque and unwork-
able innovation. But the incident proves the
absurdity of arguing on the assumption that the
Ornaments Eubric was always obeyed even in
regard to the surplice. It was no more obeyed,
even when its meaning was not disputed, than
the rubric which orders the use of the Athanasian
Creed is now by a large number of the clergy.
Dean Prideaux, a learned and distinguished divine
of the period, published a pamphlet in defence of
the recommendations of the Koyal Commissioners.
Here is his solution of the surplice question :
As to the surplice, I am sufficiently satisfied that
nothing is more unreasonable than those cavils which are
risen against it. ... But when through the malice of
some in working strange objections against it into the
minds of men, and the weakness of others in receiving
and believing them, it is now become so great a stumbling-
block of offence as to drive multitudes to forsake our
churches, and be disaffected to the worship of God which
d2
Ixvi INTEODUCTION
is performed in them, whatsoever was the reason of its
first appointment, sure I am that from hence there is
much greater to lay it aside, and appoint another that
may be less offensive in its stead. The union of the
Church and the benefit which the souls of men may
receive thereby being certainly things of far greater
moment than to be sacrificed to so trivial a matter as that
of a garment. 1
' Totally to lay aside ' the surplice was certainly
a less objectionable as well as a more logical
solution than providing a surpliced curate for the
incumbent whose conscience would not let him
put on his own back what he had no objection to
see on the back of his curate.
But the surplice was not the only stumbling-
block to scrupulous consciences at that time. The
Athanasian Creed was another, and drastic pro-
posals were made regarding it also, which I will
pass by. The reader will be surprised to learn
that kneeling at the reception of the Holy Com-
munion was another grievance which it was
proposed to abolish or leave optional. 2 I quote
Dean Prideaux's defence of the proposed altera-
tion :
Kneeling at the Sacrament of the Lord's Supper is a
posture so proper to that Holy Ordinance, that of all the
constitutions of our Church this is the last I should be
1 A Letter to a Friend Relating to the Present Convocation at
Westminster, by Humphrey Prideaux, D.D., p. 49.
2 The Commissioners recommended that a communicant who, after
conference with his minister, declared that he could not conscientiously
receive the Sacrament kneeling, might receive it standing.
INTKODUCTION Ixvii
willing to part with ; because I think the highest posture
of devotion is that which is always most natural for us to
be in when we are receiving from it so great and inestim-
able benefits as those which are reached out unto us in
that Holy Mystery. But since the weakness of many,
who are good and well-meaning men, has been so far
imposed on by several fallacious arguments, which they
have not skill enough to see through, as to think it sinful
to receive in that posture, and hereby the table of the
Lord becomes deserted, and the souls of many deprived
of the benefit of that spiritual food which is administered
thereon, contrary to the intention of our Saviour, who
hath by no means empowered us on any such account as
this to debar men from communion, and deprive them
thereby of those benefits of salvation which we are sent to
administer unto them, it is time for us now to abate our
rigour in this matter ; and when we are not able to bring
men up by reason of their weakness to the constitutions
of the Church, be so far indulgent as to descend to them,
and give them the Sacrament in their own way rather
than, for the sake of a posture only, debar them of the
benefits which their souls may receive thereby; and
to do otherwise, I doubt, will not only be a sin
against Christian charity, in prejudicing the salvation
of many, but also be an abuse of the commission en-
trusted to us.
A long sentence, as confused in syntax as in
logic. I need not discuss other alterations which
it was then proposed to make in the Prayer-Book.
The recommendations of the Eoyal Commission
were rejected by Convocation, and nothing came
of them. This was fortunate, for if they had been
carried into effect there can hardly be a doubt
that they would have resulted in the disintegration
Ixviii INTRODUCTION
of the Church of England. 1 Who would have
cared to maintain an ecclesiastical establishment
in which the use of creeds and ceremonies was left
1 It was fortunate also in the interest of literature. For the re-
volutionary recommendations of the Eoyal Commissioners did not
spare even the incomparable English of the Book of Common Prayer.
* The style of the Liturgy, however, did not satisfy the Doctors of the
Jerusalem Chamber. They voted the Collects too short and dry ; and
Patrick was entrusted with the duty of expanding and ornamenting
them.' (Macaulay's Hist. iii. 476.) Even the Latitudinarian gorge of
Macaulay rose in revolt against this barbarism. * The diction of our
Prayer-Book,' he says, * has directly or indirectly contributed to form
the diction of almost every great English writer, and has extorted the
admiration of the most accomplished infidels and of the most accom-
plished Nonconformists ; of such men as David Hume and Robert
Hall. ... In one respect at least the choice of Patrick, to improve
the style of the Prayer-Book, seems to have been unexceptionable ; for,
if we judge by the way in which Patrick paraphrased the most sublime
Hebrew poetry, we shall probably be of opinion that, whether he was
or was not qualified to make the Collects better, no man that ever
lived was more competent to make them longer. I will give two
specimens of Patrick's workmanship. " He maketh me," says David,
" to lie down in green pastures ; He leadeth me beside the still waters."
Patrick's version is as follows : " For as a good shepherd leads his
sheep in the violent heat to shady places, where they may lie down
and feed (not in parched, but) in fresh and green pastures, and in the
evening leads them (not to muddy and troubled waters, but) to purer
and quiet streams ; so hath He already made a fair and plentiful pro-
vision for me, which I enjoy in peace without disturbance." In the
Song of Solomon is an exquisitely beautiful verse : " I charge you,
daughters of Jerusalem, if ye find my beloved, that ye tell him that I
am sick of love." Patrick's version runs thus : " So I turned myself to
those of my neighbours and familiar acquaintance who were awakened
by my cries to come to see what the matter was ; and conjured them,
as they would answer it to God, that, if they met with my beloved,
they would let him know what shall I say ? what shall I desire you
to tell him, but that I do not enjoy myself now that I want his
company, nor can be well till I recover his love again ? " Fancy our
Book of Common Prayer * expanded and ornamented ' in this style !
In saving such a classic from such an outrage Convocation is surely
entitled to the everlasting gratitude of every lover of the English
language.
INTRODUCTION Ixix
optional ? The lack of statesmanship and feeble
grasp of principle which the Commissioners' re-
commendations and Dean Prideaux's pamphlet
exhibit indicated a state of spiritual apathy which
went on increasing till Wesley appeared to rouse
the nation from its lethargy. We know the re-
ception which he and his followers received from
the well-to-do and from the authorities in Church
and State. Macaulay has some remarks on this
subject which are worth quoting. Contrasting the
different policies of the Churches of Kome and
England in dealing with new religious movements,
he says of the former :
She thoroughly understands, what no other Church
has ever understood, how to deal with enthusiasts. In
some sects, particularly in infant sects, enthusiasm is
suffered to be rampant. In other sects, particularly in
sects long established and richly endowed, it is regarded
with aversion. The Catholic Church neither submits to
enthusiasm nor proscribes it, but uses it. She considers
it as a great moving force which in itself, like the
muscular powers of a great horse, is neither good nor
evil, but which may be so directed as to produce great
good or great evil ; and she assumes the direction to her-
self. . . . The ignorant enthusiast whom the Anglican
Church makes an enemy, and, whatever the polite and
learned may think, a most dangerous enemy, the Catholic
Church makes a champion. ... In this way the Church
of Home unites in herself all the strength of Establish-
ment and all the strength of Dissent. ... At Eome the
Countess of Huntingdon would have a place in the
calendar as St. Selina, and Mrs. Fry would be foundress
and first Superior of the Blessed Order of Sisters of the
Ixx INTRODUCTION
Gaols. Place Ignatius Loyola at Oxford. He is certain
to become the head of a formidable secession. Place
John Wesley at Rome. He is certain to be the first
General of a new society devoted to the interests and
honour of the Church. 1
Wesley was discouraged and repelled, and the
immense spiritual force of Methodism, which
might have been enlisted in the service of the
Church of England, was thus alienated, and driven
to energise, not always in a friendly spirit, outside
her pale.
But Wesley's example was not altogether fruit-
less inside the Church. It led the way to the
Evangelical revival, which, like reforms in general,
was one-sided ; dwelling too much on the subjec-
tive side of religion, and too little on its external
framework and sacramental character. The Oxford
Movement came to redress the balance. And how
were the rank and file of that movement received
by their own generation ? It is now the fashion to
extol the Tractarian party as loyal Churchmen, led
by a band of brilliant and able and self-sacrificing
men. Very different was the judgment passed
upon them in their own day. The most brilliant
of them, after he was driven out of a Church which
knew not how to use his gifts, culled a posy of
excerpts from episcopal charges of which the
following will suffice as a specimen :
1 Critical wa Historical Essays (Essay on Banke), iii. 129,
INTKODUCTION Ixxi
'Let us diligently search the well of life,' said one,
' and not run after the stinking puddles of tradition,
devised by men's imagination.' 'It is a subject of deep
concern,' said another, 'that any of our body should
prepare men of ardent feelings for a return to the Koman
Mass-book.' ' Already,' said a third, * are the foundations
of apostasy laid. Antichrist is at the door. I am full of
fear : everything is at stake ; there seems to be something
judicial in the rapid spread of these opinions.' ' Our
glory is in jeopardy,' cries a fourth. ' Tractarianism is
the masterpiece of Satan,' says a fifth.
But space would fail me if I were to quote in
detail. Let it, then, suffice to say that the leading
Tractarians were denounced as
' superstitious,' ' zealots,' ' mystical,' ' malignants,' ' Oxford
heretics,' 'Jesuits in disguise,' 'tamperers with Popish
idolatry,' ' agents of Satan,' ' a synagogue of Satan,'
' snakes in the grass,' men who were ' walking about our
beloved Church, polluting the sacred edifice and leaving
their slime about her altars,' 'miscreants, whose heads
may God crush.' l
And the Press vied with the Episcopate in these
violent denunciations of the leading Tractarians.
In a number of the c Standard ' of the year 1841 I
find a leading article in which it is said : t There is
not a particle of true intellectual vigour, or man-
hood, or candour in his [Newman's] whole sect.'
The c Times,' to do it justice, tried for three years
gallantly to stem the torrent of abuse. In the
same year (1841) in which the ' Standard ' denied
1 Newman, Lectures on Certain Difficulties felt by Anglicans in
submitting to the Catholic Church, p. 92,
Ixxii INTRODUCTION
that there was ' a particle of true intellectual
vigour, or manhood, or candour ' in Newman and
his friends, the c Times ' wrote :
No man, however widely differing from them, can
open any of their publications without perceiving that
they write with learning, ability, forbearance, and courtesy
of language towards their adversaries. No man can know
anything of their lives without being aware that they act
consistently with their professions.
In 1844 the l Times ' joined the assailants of
the Tractarian party, and the motive cause was the
insistence by the leading Tractarians on the weekly
offertory even when there was no celebration of the
Holy Communion. I am bound to say that the
' Times ' seems to me to have had the best of the
argument. The Tractarian movement, like most
earnest and enthusiastic movements, had its ' fads '
and puerilities. It elevated the weekly offertory
into a kind of sacrament. 'For himself,' said
Bishop Blomfield who was hardly a Tractarian
to a deputation on this subject, ' he at once de-
clared that he would not preach in any church in
his diocese where the ceremony regarding the
offertory was not observed.' The line the c Times '
took was that the offertory was an adjunct to the
celebration of the Holy Communion, and that the
weekly revival of the one implied the accompani-
ment of the other :
If the Bishop of London [it said] chooses to hold to
the decision of antiquity, he must first restore weekly
INTBODUCTION Ixxiii
communion, and then the weekly offertory is sure to
come. . . . Let the clergy, especially the younger ones,
remember that as words are the signs of ideas, so forms
and ceremonies are but the outward expressions and
features of a vast spiritual soul. The church revivers
may be right or they may be wrong in wishing to get
back the old system ; but if we were their enemies, we
could not recommend them a more pernicious course than
that which some are pursuing. To introduce bits and
fragments and under present circumstances the weekly
offertory, without communion, is but a contemptible scrap
of an ancient system, without first having saturated
themselves and their flocks with a ' primitive ' life and
doctrine, is a puerility.
This seems to me good sense and sound doc-
trine, and the ' Times ' would have done admirable
service if it had continued to write in this wise
style of calm and judicious criticism. But it
yielded at last to the current and gave the as-
sailants of the Oxford Movement the inestimable
advantage of its heavy batteries.
' The best of prophets of the future is the past. 7
A true knowledge of history confers a kind of gift
of prophecy. To look backward intelligently and
sagaciously is potentially to look forward. Political
and religious movements commonly obey everlast-
ing laws and travel through the stages of known
cycles, which thus ensure enough of resemblance
to guarantee the general outline of an accurate
prophecy. Let us then take a sort of bird's-eye
view of the various stages of the ' Eitual ' contro-
Ixxiv INTEODUCTION
versy from the year 1844 to the forthcoming Eeport
of the Eoyal Commission on Ecclesiastical Disci-
pline. It will make interesting, and perchance
instructive, reading. My quotations shall be all
from the ' Times/ because, however violent its lan-
guage may seem now, its violence was surpassed
by most of the leading organs of public opinion at
the time. The following is from a leading article
in the ' Times ' of December 31, 1844 :-
Throughout the whole of this unhappy contest the laity
have behaved with consistency; they have stood their
ground firmly ; they have made known, intelligibly enough,
over and over again, their strong repugnance to the intro-
duction of the obnoxious novelties ; they have respect-
fully requested the removal of them ; to be allowed to
worship as their fathers worshipped, and to observe the
same ritual to which they have been accustomed from
their infancy. . . . The year, it appears, is to close over
this fiery controversy of which no one can tell the final
issue. . . . We look upon it as a strife, not of words, but
of principles, and therefore the more lasting and im-
portant in its effects.
These are the words with which the i Times '
rings out the year 1844. The area of the strife
extended during the following year, and so, un-
fortunately, did its bitterness. The Press had re-
porters war correspondents they might be more
fitly called to watch and describe the develop-
ment of events. One of these, writing from Exeter
on January 20, 1845, opens his description of the
fray as follows ;
INTRODUCTION Ixxv
After the disgraceful exhibition of Sunday last at the
church of St. Sidwell's the excitement and irritation
shown in the church the hootings and yellings in the
streets by an indignant population at the Eev. Mr.
Courtenay for continuing observances and ceremonies
in the service of the church to which the parishioners
had expressed their repeated and decided objection it
was hoped by many that a regard for the decorous
observance of the Sabbath, and for the quieting of men's
minds, would have induced that gentleman to yield.
But ' that gentleman ' apparently was proof
even against the soothing influences of the Sabbath,
and performed accordingly the service in a way
which led to results described as follows by the
c Times ' correspondent :
On leaving the church the congregation mingled with
a crowd of 700 or 800 people who were assembled outside,
and waited for the appearance of Mr. Courtenay. He
left the church in the centre of a dozen gentlemen,
headed by the churchwardens, and was received by the
crowd with hootings and yellings, which continued as he
and his friends rapidly made their way through, protected
by policemen.
This was in the morning.
In the evening [continues the reporter], although it
rained in torrents, the church of St. Sidwell's was densely
crowded. It was a strange and unbecoming scene of
excitement. Again Mr. Courtenay preached in his sur-
plice, following all the same objectionable observances as
in the morning. On his entering the pulpit the congrega-
tion appeared all to rise from curiosity ; many went out ;
the church porch and lobby were densely crowded ; and
Ixxvi INTRODUCTION
so great a noise prevailed that the opening prayer before
the sermon was scarcely audible. . . . The service ended,
the scene outside the church beggars description. It
rained in torrents ; yet the streets were like a fair.
About two thousand persons were assembled to hoot
Mr. Courtenay as he left the church. Gibes, and shouts,
and laughter rang through the air. The rev. gentleman
was again surrounded by a party of his friends to protect
him as he left the church. A strong body of the police
made a lane through the crowd for him, and then formed
in close file round him to keep off the crowd. . . . The
indignation of the people is certainly excusable, for the
cause of all the mischief was Mr. Courtenay and a white
gown. It was generally rumoured that the Mayor had
called on Mr. Courtenay before the afternoon service, and
represented to him the danger to the peace of the town,
and the great probability of a fight with the police if he
persevered, and had put it to him as a clergyman if he
thought it proper to run the risk of such a result by
persisting in the line of conduct he was pursuing.
These scenes went on for several Sundays,
and then the ' Times ' opened its batteries on Mr.
Courtenay. ' Quousque tandem ? ' demanded the
leading journal, as if Mr. Courtenay were an eccle-
siastical Catiline, conspiring against the institutions
of his country.
How long is it to go on ? How long is the public
patience to be abused by the impertinence of such men as
the Eev. Mr. Courtenay in those ceremonial absurdities
which even his Bishop has been forced to discountenance ?
... As to reasoning the point any longer, it is out of the
question. For the peace of society, for the comfort of
the townspeople, for the cause of quiet and devotion in
INTEODUCTION Ixxvii
the public service of the church, this may not and must
not be. Mr. Courtenay's career has had its full share of
experiment upon the general feeling of Exeter ; and if he
will not comply with the audible expression of opinion
which he has already received, but will collect a crowd to
repeat their detestation of his doings, and put in requisi-
tion a whole force of police to guard him home, he must
be put down as a common nuisance.
Let us now leap over three years. Poor Mr.
Courtenay was worried into his grave in the inter-
val, and the Eev. J. Ingle appears as the hero of
the scene which is thus described in the ' Times '
of November 6, 1848 :
A KIOT IN CHUECH. On Sunday, the 29th ult., the
church of St. Sidwell's, in the city of Exeter, was the
scene of a disgraceful riot during the time of the evening
service in consequence of the Eev. J. Ingle entering the
pulpit in his surplice. . . . The uproar commenced with
a general ' coughing down.' Several persons then moved
towards the door, making a great noise in their progress ;
a young woman went off in a fit of hysterics, uttering
loud shrieks, whilst a mob outside besieged the doors of
the building. A cry of ' Fire ! ' was raised, followed by
an announcement that the church doors were closed, and
a rush was made to burst them open. Some persons
cried, ' Turn him out ! ' ' Put out his lights ! ' In the
galleries the uproar was at its height, whistling, the noise
of cat-calls, and such cries as are heard in theatres,
hurrahing, &c., echoed throughout the edifice. Mr. Ingle
still persisted to read his text, but was quite inaudible,
and the row increased, some of the congregation waving
their hats, standing on the seats, brawling, roaring, and
gesticulating, like a mob at an election.
Ixxviii INTRODUCTION
These doings were in the far West. Let us
now see how matters fared in the metropolis. On
March 15, 1845, there was an excited meeting held
in the parish of St. George's-in-the-East, London.
The chairman of the meeting was the senior
churchwarden of the parish, who bore the ill-
omened name of Liquorish. But the orator of the
occasion was a certain Mr. Baddeley, of whom
history, as far as I know, records nothing more.
Mr. Baddeley made a speech which appears to
have evoked much applause, and which, no doubt,
expressed the genuine feelings of the man and of
those who cheered him. The following extracts
will give some idea of his line of argument :
It was lamentable that a parish consisting of upwards
of 43,000 souls should be disturbed to its centre at the
will of one individual, who at his mere pleasure disturbed
and deranged the beautiful and solemn ceremonial of
church service which had been handed down to us un-
changed for more than two centuries. These were not
the days to trifle with the laity. Men could not now be
dragooned into a belief or compelled to a ceremonial.
Fortunately there was an organ of incalculable power
and extent to preserve and support the creed of their fore-
fathers : the * Times ' was that powerful organ. . . . Their
rev. rector talked of peace while he was at the very time
fomenting discord by introducing a Jim Crow sort of
buffoonery into the peculiarly solemn and impressive
decencies of our simple and affecting church service.
Until this innovation was palmed upon them there was
not a more happy or united parish in the whole kingdom
than theirs.
INTEODUCTION Ixxix
Other speakers followed in a similar strain, and
then the ' Times ' reporter relates a pathetic inci-
dent :
Several old parishioners, some of whom were affected
even to tears, came forward to protest against practices
which drove them from the church where their fathers
had worshipped, and where healing memories of holy
things soothed, while they sanctified, their Sabbath visits.
All this, they said, was changed by the practice of their
rector. The son passed by the grave of his father ; the
widower, of his wife ; the mother, of her child, to seek
in some remote and unaccustomed house of worship that
spiritual sustenance which the novel practices of their
new rector had rendered unacceptable at his hands.
Scarcely less pathetic was the declaration of a
gentleman at Hurst, in Berkshire. This gentleman
is described as ' the owner of Hurst House,' and
here is his tale of woe tinged, however, with one
ray of pensive satisfaction :
Alluding to his aunt, who attained the great age of
100 years, he observed that it was a satisfactory reflection
to him and his brother that the latter days of their ex-
cellent aunt were not embittered by such proceedings as
had lately taken place in the parish, and that she had not
lived to be driven, by the mistaken course which had
been pursued, from the church which she had so many
years attended.
The fate from which the Angel of Death had
mercifully snatched this good old lady was that of
witnessing the collection of an offertory and hearing
Ixxx INTRODUCTION
the Church Militant Prayer on Sundays on which
the Holy Communion was not celebrated.
But what were these ' novel practices,' the ' Jim
Crow sort of buffoonery/ which had wrought such
dire havoc in a once peaceful and happy parish ?
Spectatum admissi risum teneatis, amid ? ' The
very head and front of ' the rector's c offending '
was that he preached in the surplice, turned to the
Bast at the recital of the Creed, and that ' the re-
sponses after the Commandments, which are prayers
for mercy, and n
