The present Court of Appeal is deduced, in the Historical Introduction, as a natural and logical consequence, from Henry VIII.'s Supremacy. Undoubtedly it is scarcely possible to overstate the all-grasping despotism of Henry VIII., and if a precedent for anything reckless of all separate rights and independence should be wanted, it would never be sought in vain if looked for in the policy and legislation of that reign. So far the editors are right; the power over religion claimed by Henry VIII. will carry them wherever they want to go; it will give them, if they need it, as a still more logical and legitimate development of the Supremacy, the Court of High Commission. Only they ought to have remembered, as fair historians, that even in the days of the Supremacy the distinct nature and business of the Church and of Churchmen was never denied. Laymen were given powers over the Church and in the Church which were new; but the distinct province of the Church, if abridged and put under new control, was not abolished. Side by side with the facts showing the Supremacy and its exercise are a set of facts, for those who choose to see them, showing that the Church was still recognised, even by Henry VIII., as a body which he had not created, which he was obliged to take account of, and which filled a place utterly different from every other body in the State. Henry VIII. played the tyrant with his Churchmen as he did with his Parliament and with everybody else; and Churchmen, like everybody else, submitted to him. But the "Imperialism" of Henry VIII., though it went beyond even the Imperialism of Justinian and Charlemagne in its encroachments on the spiritual power, as little denied the fact of that power as they did. He recognised the distinct place and claims of the spiritualty; and, as we suppose that even the editors of this volume hardly feel themselves bound to make out the consistency of Henry, they might have spared themselves the weak and not very fair attempt to get rid of the force of the remarkable words in which this recognition is recorded in the first Statute of Appeals (24 Henry VIII. c. 12). The words would, no doubt, be worth but little, were it not that as a matter of fact a spiritualty did act and judge and lay down doctrine, and even while yielding to unworthy influence did keep up their corporate existence.
But when the ecclesiastical legislation of Henry VIII. is referred to, not merely as the historical beginning of a certain state of things which has undergone great changes in the course of events, but as affording a sort of idea and normal pattern to which our own arrangements ought to conform, as supplying us with a theory of Church and State which holds good at least against the Church, it seems hard that the Church alone should not have the benefit of the entire alteration of circumstances since that theory was a reality. Those who talk about the Supremacy ought to remember what the Supremacy pretended to be. It was over all causes and all persons, civil as well as ecclesiastical. It held good certainly in theory, and to a great extent in practice, against the temporalty as much as against the spiritualty. Why then are we to invoke the Supremacy as then understood, in a question about courts of spiritual appeals, and not in questions about other courts and other powers in the nation? If the Supremacy, claimed and exercised as Henry claimed and exercised it, is good against the Church, it is good against many other things besides. If the Church inherits bonds and obligations, not merely by virtue of distinct statutes, but by the force of a general vague arbitrary theory of royal power, why has that power been expelled, or transformed into a mere fiction of law, in all other active branches of the national life? Unless the Church is simply, what even Henry VIII. did not regard it, a creation and delegate of the national power, without any roots and constitution of its own, why should the Church be denied the benefit of the common sense, and the change in ideas and usage, which have been so largely appealed to in civil matters? Why are we condemned to a theory which is not only out of date and out of harmony with all the traditions and convictions of modern times, hut which was in its own time tyrannous, revolutionary, and intolerable? Arguments in favour of the present Court, drawn from the reason of the thing, and the comparative fitness of the judges for their office, if we do not agree with them, at least we can understand. But precedents and arguments from the Supremacy of Henry VIII. suggest the question whether those who use them are ready to be taken at their word and to have back that Supremacy as it was; and whether the examples of policy of that reign are seemly to quote as adequate measures of the liberty and rights of any set of Englishmen.
The question really calling for solution is—How to reconcile the just freedom of individual teachers in the Church with the maintenance of the right and duty of the Church to uphold the substantial meaning of her body of doctrine? In answering this question we can get no help from this volume. It simply argues that the present is practically the best of all possible courts; that it is a great improvement, which probably it is, on the Courts of Delegates; and that great confidence ought to be felt in its decisions. We are further shown how jealously and carefully the judges have guarded the right of the individual teacher. But it seems to us, according to the views put forward in this book, that as the price of all this—of great learning, weight, and ability in the judges—of great care taken of liberty—the Church is condemned to an interpretation of the Royal Supremacy which floats between the old arbitrary view of it and the modern Liberal one, and which uses each, as it happens to be most convenient, against the claim of the Church to protect her doctrine and exert a real influence on the authoritative declaration of it. We all need liberty, and we all ought to be ready to give the reasonable liberty which we profess to claim for ourselves. But it is a heavy price to pay for it, if the right and the power is to be taken out of the hands of the Church to declare what is the real meaning of what she supposes herself bound to teach.
IV
SIR JOHN COLERIDGE ON THE PURCHAS CASE[5]
[5]
Remarks on Some Parts of the Report of the Judicial Committee in
the Case of "Elphinstone against Purchas." A Letter to Canon Liddon,
from the Right Hon. Sir J.T. Coleridge. Guardian, 5th April 1871.
No one has more right to speak with authority, or more deserves to be listened to at a difficult and critical moment for the Church, than Sir J.T. Coleridge. An eminent lawyer, and a most earnest and well-informed Churchman, he combines in an unusual way claims on the attention of all who care for the interests of religion, and for those, too, which are so deeply connected with them, the interests of England. The troubles created by the recent judgment have induced him to come forward from his retirement with words of counsel and warning.
The gist of his Letter may be shortly stated. He is inclined to think the decision arrived at by the Judicial Committee a mistaken one. But he thinks that it would be a greater and a worse mistake to make this decision, wrong as it may be, a reason for looking favourably on disestablishment as a remedy for what is complained of. We are glad to note the judgment of so fair an observer and so distinguished a lawyer, himself a member of the Privy Council, both on the intrinsic suitableness and appropriateness of the position[6] which has been ruled to be illegal, and on the unsatisfactoriness of the interpretation itself, as a matter of judicial reading and construction. A great deal has been said, and it is plain that the topic is inexhaustible, on the unimportance of a position. We agree entirely—on condition that people remember the conditions and consequences of their assertion. Every single outward accompaniment of worship may, if you carry your assertion to its due level, be said to be in itself utterly unimportant; place and time and form and attitude are all things not belonging to the essence of the act itself, and are indefinitely changeable, as, in fact, the changes in them have been countless. Kneeling is not of the essence of prayer, but imagine, first prohibiting the posture of kneeling, and then remonstrating with those who complained of the prohibition, on the ground of postures being unimportant. It is obvious that when you have admitted to the full that a position is in itself unimportant, all kinds of reasons may come in on the further question whether it is right, fitting, natural. There are reasons why the position which has been so largely adopted of late is the natural and suitable one. Sir John Coleridge states them admirably:—
[6] The Eastward Position at the celebration of the Holy Communion.
As to the place of standing at the consecration, my feeling is with them. It seems to me not desirable to make it essential or even important that the people should see the breaking of the bread, or the taking the cup into the hands of the priest, and positively mischievous to encourage them in gazing on him, or watching him with critical eyes while so employed. I much prefer the spirit of the Rubric of 1549—First Book of Edward VI.—which says, "These words before rehearsed are to be said turning still to the Altar, without any elevation, or showing the Sacraments to the people." The use now enforced, I think, tends to deprive the most solemn rite of our religion of one of its most solemn particulars. Surely, whatever school we belong to, and even if we consider the whole rite merely commemorative, it is a very solemn idea to conceive the priest at the head of his flock, and, as it were, a shepherd leading them on in heart and spirit, imploring for them and with them the greatest blessing which man is capable of receiving on earth; he alone uttering the prayer—they meanwhile kneeling all, and in deep silence listening, not gazing, rather with closed eyes—and with their whole undistracted attention, joining in the prayer with one heart and without sound until the united "Amen" breaks from them at the close, and seals their union and assent.