to sit with him in judgment on one of their own order (Watson, Bishop of St. David's), it was to the Court of Delegates, that is, the Sovereign acting in Chancery, that the accused Bishop appealed, and by this Court was the case decided.1 The same paramount jurisdiction is now exercised by the Queen in Council under an Act of the last reign. According to the Constitution, there lies no further appeal from a Court so directly representing the Sovereign to any body in Church or State: not to the House of Lords as to the temporal effects of the Judgment; not to any of the several Convocations of the Church. Indeed, the Judges, who in Whiston's case were of opinion that the Convocation of Canterbury might be a Court for trying heresy, conceded this on the distinct understanding that an appeal would lie from Convocation to the King. The only way in which, in former times, decisions of the Court of Appeal could constitutionally be set aside was through the Sovereign, by the advice of the Lord Chancellor, issuing a Commission of Review; and, since the last changes in the Court, this has become impossible. Proposals, then, as to the remodelling of this Court raise questions of the gravest moment, if we look only to the importance of its functions.

3

Now such a Court may have assumed its distinctive form in virtue of the original contract according to which the relations of Church and State were settled, either in their first union or after some momentous political or ecclesiastical revolution or it may have grown to its existing development in the course of years through changes sanctioned by the distinct legislation or the acquiescence of the two contracting bodies.

The opinion is widely spread, that, when the power of the Crown as exercised through the Court of Delegates was transferred, first to the Privy Council in 1832, and, secondly, to the Judicial Committee of that body in 1833, amid the variety of causes, testamentary and the like, coming before that Court,

1 Cf. Appendix, p. 337, and also vide Burnet, O. T. vol. iv. p. 481.

2 Cf. Appendix, p. 323.

3 Vide Special Report of Commissioners on Ecclesiastical Courts. 1831. Page 6. Also the Historical Introduction to this work, p. lxi.

there was no thought of causes ecclesiastical in the higher and most restricted sense, or, as it is more proper to call them, causes spiritual. On the other hand, it must be allowed to be strange if such causes were overlooked in the Act of 1833, seeing that both that Act and the previous Act of 1832, which it amended, were founded on two reports of a Commission, on which Archbishop Howley and Bishop Blomfield, with other Bishops, sat, and that the latter of these two reports, presented in February, 1832, devotes five folio pages to a minute consideration of the mode of dealing with the offences of the clergy, and specifies "advancing doctrines not conformable to the Articles of the Church" amongst such offences;1 while with regard to the modification of the Judicial Committee of the Privy Council as the Court of Appeal, which took place in 1840, this was effected by that Church Discipline Act which, from first to last, deals with spiritual causes and none other.

But, in truth, if in its constitution such a Court contravenes no great principle, religious, ecclesiastical, or political, and if it does its work well, men now-a-days will not be more scrupulous in searching into its origin and growth than they are in tracing out the antiquarian questions connected with other Courts of justice; while on the other hand, if any Court in Church or State works ill, no care in its original formation, nor well-adjusted symmetry of theoretical adherence to great principles, will save it from rough criticism and reform, if not abolition. Probably this Court, like others in the Church or realm, will practically be praised or blamed according to the way in which it discharges its high functions, and the good or evil which results from its judicial action. Hence the propriety of a calm review of what it has actually done.

It is, however, granted that, besides the inquiry into its usefulness, or the reverse, tested by practical results, there must be other intricate points connected with the constitution of such a Court which ought not to be overlooked by

1 Vide as above, Reports of Commissioners on Ecclesiastical Courts, reprinted, 1855. Compare p. 13 with pp. 55 to 61.

those who entertain any project for altering it. Some of these it is now proposed to notice in this short preface.

At the time of the Reformation the difficulties which must always beset the constitution of a Court of Final Appeal for causes ecclesiastical in a national established Church, were, no doubt, keenly felt, and they recur in their full force whensoever men turn their minds to the question whether they ought to seek any changes in such a Court.

On the questions which thus naturally arise, conflicting opinions have of late years been expressed by persons of very high authority both in Church and State. Of course this work does not aspire to settle these questions; but it seeks to supply information indispensable for their settlement. I do not wish in this preface to conceal in what direction my own feelings and conclusions tend in reference to these questions; but still I desire, as far as possible, to reserve my final opinion, in order that, if any definite proposal for the alteration of the Court be brought before the Legislature, I may be able to examine it on its own merits, impartially and unpledged. I have, however, thought it very important, that, in indicating the following points as entering necessarily into any complete discussion of the questions at issue, I should give especial prominence, under each head, to that view which would appear to have been least considered in recent publications, and which is certainly entertained by a large body of attached members of the Church.

I. The idea of a national Church, remaining indeed still a member of the great Catholic Church of Christ in virtue of its adherence to the one Faith, but still independently managing its own affairs, and deciding within itself all its own cases of discipline, had been well-nigh lost in times of Papal encroachment. The problem which the English Reformers had to solve was, how to break away from the dominion of a foreign tyranny and assert independence for English Churchmen, while they still maintained a firm bond of internal unity both in ecclesiastical legislation and in ecclesiastical judicature. There was danger lest, when the forced and unnatural chain forged by Rome was shivered, the Church might resolve itself into its primitive elements, and all out

ward unity be lost-lest each Diocese, if not each congregation, or insignificant aggregate of congregations, might set up a claim to make its own laws and try its own causes. Happily the English Church in its ancient constitution was not left thus disunited. Besides its anciently recognised legitimate subordination, in many important matters, to the one Chief of the State, it had two great Archiepiscopal centres round which its several Dioceses might revolve. If the power of the Western Patriarch was renounced to save the Church from his usurpations, and from the fatal errors in doctrine and practice which his usurped power fostered, English Christians could still rally round the King and their Metropolitans.

It has been maintained, that as each Archbishop could, under certain restrictions, summon a Convocation of his own Province for legislation, so the experiment was tried for one year of allowing each to hold in his Provincial Court an irresponsible power of judicature without further appeal.1 But, if this expedient would have avoided the utter disunion which would have followed from acknowledging the independence of separate Dioceses, it still would not have secured union in the national Church as a whole. There were two Archbishops in England, each with his own Province independent of his brother Metropolitan. In Ireland there were four Archbishops. The Archbishop of Canterbury is not Patriarch over the others. We may judge to what confusion this expedient would have led as a precedent in the Church generally, if we suppose it applied to other countries, where there are many Archbishops. In France there are at present eighteen. Obviously the national unity could not be guarded by leaving each Archbishop irresponsible; hence it is scarcely probable that this arrangement was ever tried, even as a temporary expedient for one year. During that one year appeals to Rome were not forbidden except in matrimonial and testamentary causes, and questions of tithes, and the like that is, spiritual causes would not be finally decided in the Archbishops' Courts. Now those who feel these difficulties insist

124 Henry VIII. c. 12.

2 See below, Introd. p. xxxvii. xxxviii.

that the national settlement dates from the Act of the following year, when appeals to Rome in spiritual causes were first forbidden, and the rule of appeal to the King from all the Archbishops' Courts, the principle of which has ever since been maintained, was finally settled.

The problem for the Reformers was, how to secure national Church unity. With the wider union of the various national Churches in the universal Church, they were not for the present occupied. Renouncing the Pope's authority, they looked for the outward manifestation of that wider unity to the representation of various national Churches in general Councils gathered together according to ancient precedent, not without the will of civil rulers. And it is contended, if each national Church, consisting perhaps of several ecclesiastical Provinces, was to be bound together in one outward constitution, this union could not be cemented without a national Head of some kind. The Reformers knew that Metropolitans had become centres for uniting Bishops, and Patriarchs for uniting Metropolitans, not through any institution of Christ, but by the exigencies of the Christian community in past times; and they turned now not unnaturally to the civil ruler of the nation, as affording a ready means whereby the several Dioceses and Provinces in a Christian realm could be welded into one outward body.

At first, there was a tendency in our Reformers to overlook the distinction between the sacred functions of the clergy and the duties of the civil magistrate: both were acknowledged to derive their authority from the same. source, and there might be a misconception as if they derived this authority in the same way. But this misunderstanding, against which a protest was afterwards recorded in the thirty-seventh of the XXXIX Articles, produced no lasting practical evil. A marked line was soon recognised, now as of old, as separating clerical functions, and all that purely spiritual authority which Theologians comprehend under "the power of the keys," from temporal dominion.

The Sovereign had always in England been endeavouring 125 Henry VIII. c. 19.