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IV. Gladstone and the Composition of the Final Court in Ecclesiastical Causes, 1850–73
Published online by Cambridge University Press: 09 December 2010
Extract
The ‘Final Court’ of Appeal in causes ecclesiastical in this period was the Judicial Committee of the Privy Council as amended by 3 and 4 Viet. c. 86, s. 16, whereby every archbishop or bishop who was a Privy Councillor was made a full member of the Committee for Ecclesiastical Appeals, and one at least of them had to sit. The function of the Judicial Committee as the final arbiter of legal questions which might involve Anglican doctrine and usage was much criticized by churchmen throughout the nineteenth century. Criticism was directed mainly along two channels. It was argued that the Church's freedom to mould her own spiritual life could not be absolute while the Crown, through the Judicial Committee, might, by accident or intention, interfere in questions of doctrine. This argument aimed at removing the Church from all external judicial supervision and implied the eventual dis-solution of the constitutional bond between Church and State—a prospect which a few extreme High Churchmen regarded with equanimity. The other main criticism was that the Judicial Committee, as amended by 3 and 4 Viet, c. 86, was neither a truly civil nor a truly ecclesiastical court, but merely, as Gladstone described it in 1850, ‘pseudo-ecclesiastical’. Of this point of view, Bishop Wilberforce was the most consistent and the most powerful representative.
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References
1 By 2 and 3 Will. IV, c. 92, s. 3, the Privy Council replaced the Court of Delegates as the final court of appeal in causes ecclesiastical. In the following year, 1833, the Judicial Committee of the Privy Council replaced the Privy Council for such purposes, under 3 and 4 Will. IV, c. 41. Between 1833 and 1840, ‘the judicial committee… called in archbishops and bishops being privy councillors as assessors in one or two ecclesiastical appeals’ ( Philli-more, R. J., Ecclesiastical Law of the'Church of England, 2nd ed. London, 1895, 11, 975).Google Scholar Finally, the ‘spiritual element’ was incorporated in the Judicial Committee for purposes of ecclesiastical appeal, by 3 and 4 Viet. c. 86. Its omission, under Lord Brougham's legislation, had been accidental. Thus, during the disturbance surrounding the Gorham judgement in 1850, ’ it was stated, on the authority of Lord Brougham, that when the old Court of Delegates was superseded in 1833 by the Judicial Committee, it was forgotten and not contemplated that questions on Church doctrine would ever come before this new tribunal’ ( Ashwell, A. R. and Wilberforce, R. G., Life of Samuel Wilberforce, London, 1880-1883, II, 39)Google Scholar.
2 Remarks on the Royal Supremacy (London, 1850), p. 83.Google Scholar
3 Quoted in Phillimore, op. cit. I, 495-6.
4 Quoted in ibid, II, 851.
5 Quoted in ibid, II, 851-2.
6 The Provincial Court, in each case, of the archbishop of Canterbury and of the archbishop of York.
7 Phillimore, op. cit. I, 495.
8 29 Apr. 1850. In Lathbury, D. C. (ed.), Correspondence on Church and Religion of W. E. Gladstone (London, 1910), 1, 100–2Google Scholar.
9 Coke had said, in connexion with Cawdrey's case: ‘By the ancient laws of this realm, this kingdom of England is an absolute empire and monarchy, consisting of one head, which is the king, and of a body compact and compounded of many and almost infinite, several, and yet well-agreeing members, all which the law divideth into two several parts, that is to say, the clergy and laity, both of them next and immediately under God subject and obedient to the head’ (quoted in Phillimore, op. cit. I, 6).
10 Subtitled: A Letter to the Lord Bishop of London (London, 1850).Google Scholar The date at the end of the letter is given as 4 June 1850.
11 Ibid. p. 73. The ‘present composition of the appellate tribunal’ consisted of the Judicial Committee amended, as already described, by the Church Discipline Act of 1840, 3 and 4 Viet. c. 86.
12 Blomfield. He had dissented from the Privy Council judgement in the Gorham Case. The archbishop of Canterbury, Sumner, and the archbishop of York, Musgrave, had, how-ever, concurred in it.
13 Parl. Debates, series in, vol. CXI, col. 598; and Blomfield, A. (ed.), A Memoir of C. J. Blomfield (2nd ed. London, 1864), pp. 304–8.Google Scholar The Bill was supported by Bishop Wilberforce.
14 Remarks on the Royal Supremacy, p. 83.
15 Ibid.
16 Ibid.
17 As provided for by 3 and 4 Viet. c. 86, s. 16.
18 Remarks on the Royal Supremacy, p. 81. Bishop Blomfield had dissented from the judgement.
19 Even this raised difficulties: for it was argued that while the Lower House of Convocation fairly represented the opinion of the Church, the Upper House, by reason of the influence of the Crown in appointing its members, did not necessarily do so.
20 Archbishops and bishops who were Privy Councillors to be members of the committee for ecclesiastical appeals.
21 Gladstone to Blomfield, 16 July 1850, in Lathbury, op. cit. I, 105—8. In 1856, when Archdeacon Denison's case (Denison v. Ditcher) was before the archbishop of Canterbury, Gladstone feared that the archbishop would condemn the archdeacon for ‘his profession of those principles which imply belief in the Eucharist as a substantive reality’ and added: ‘a contingency of this kind is what I have contemplated as too probable almost ever since the appointment of Archbishop Sumner, and to a great degree in consequence of that appointment’ (Gladstone to Aberdeen, 13 August 1856, in ibid. 1, 372-3).
22 Remarks on the Royal Supremacy, p. 83.
23 Wilberforce to Gladstone, 31 Oct. 1857, in Ashwell and Wilberforce, op. cit. II, 351-2.
24 Gladstone to Wilberforce, 2 Nov. 1857, in ibid, II, 352-4.
25 Ibid.
28 Gladstone to Wilberforce, 11 Jan. 1861, in ibid, in, 104–5. Gladstone's proposed Court was to consist of the archbishops of Canterbury and York, the bishop of London, the two senior bishops of the Province of Canterbury and two other bishops from that Province to be chosen by all the comprovincials, the two senior bishops of the Province of York and the archbishops of Dublin and Armagh. (By a curious error in anyone so meticulous, Gladstone supposes that a Court so constituted will consist of 12 persons; and continues his letter to Wilberforce, 11 Jan. 1861, on this assumption. Wilberforce, in his reply, 16 Jan. 1861, in ibid. III, 105—6, does not mention the error.)
27 Wilberforce to Gladstone, 9 Jan. 1861, in ibid, in, 103-4.
28 Ibid. pp. 441–4, Appendix A, Reasons for altering, as follows, the 3rd and 4th Viet. cap. 86, sec. 16, so far as concerns the Supreme Court of Appeal. The Board was to consist of the arch-bishops of Canterbury, York, Armagh and Dublin, and the bishop of London; four other bishops of the Province of Canterbury, to be elected by their comprovincials; two bishops of the Province of York and one each from the Provinces of Armagh and Dublin chosen, in each case, by their comprovincials.
29 Gladstone to Wilberforce, 24 March 1862, in ibid. pp. 107-8.
30 Wilberforce to Westbury, 27 June 1863, in ibid. pp. 109-10. He cites the Gorham case as a possible example. Thus, in that case,’ the lawyer would still, it may be, have decided that Mr Gorham's book did not so categorically contradict the formularies and articles as to subject him to deprivation. But with this would have gone out the ecclesiastical answer that the Church of England taught that every rightly baptized infant was regenerate, and this would have saved us from the great schism under which we have ever since languished.’
31 Gladstone to Wilberforce, 6 Sept. 1864, B.M. Add. MSS. 44,344, fos. 290-2. Copy-corrected in Gladstone's hand. His suggestions for the composition of the ‘body of Assessors’ provided that, in a Canterbury case, two bishops of that Province ‘chosen by the body of the Province’, should sit ‘with the present Assessors’; in a York case, ‘one Bishop (York); in a Dublin case, or an Armagh case, the Archbishop of each respectively’. But as this might leave the body of Assessors ‘rather small’, he also suggested that, ‘taking into view the dignity of the See, and the residence in or near London’, Winchester might be added to ‘the present three’ assessors.
32 Ibid.
33 Gladstone to Cavendish, 18 Dec. 1864, B.M. Add. MSS. 44,124, fos. 353-5.
34 Gladstone to Cavendish, 9 Jan. 1865, B.M. Add. MSS. 44,124, fos. 357-8.
35 Wilberforce to Gladstone, 3 July 1873, B.M. Add. MSS. 44,345, fos. 248-50. See also Gladstone's holograph memorandum dated 3–4 July 1873, in which he says that Hardy ‘came to me in the House at midnight’. Hardy had obtained Disraeli's support for the proposed amendment. Gladstone continues: ‘I told him that I would consult the Cabinet; and that I did not see my way to any change on the instant in the 18th clause, as it might be dealt with on the Report or on the intended recommitment.’ Gladstone consulted six members of the Cabinet who were present; and they, together with the Law Officers, all ‘agreed that the thing should be done’. The matter seems later to have been referred to the whole Cabinet (B.M. Add. MSS. 44,761, fos. 160-1).
86 Parl. Debates, series in, vol. ccxvi, col. 1788. The following gravamen had been presented in the Lower House of Convocation by Lord A. Compton on 7 May 1873: ‘That the constitution of the present Final Court of Appeal in causes ecclesiastical is unsatisfactory in many respects, more especially in that it is a mixed court of spiritual persons and laymen. That a Bill is now before Parliament for establishing a new Final Court of Appeal for all causes arising in England, except causes ecclesiastical. That such new Final Court of Appeal will be far fitter to entertain ecclesiastical causes in the last resort than the present Final Court of Appeal in such causes. Reformandum.—Causes ecclesiastical may not be excepted from those which are to come under the cognizance of the said Court’ (Chronicle of Canterbury Convocation, 8 Viet. 5, 1873, p. 311).
87 Parl. Debates, series in, vol. ccxvi, cols. 1794-5.
38 Gladstone to Wilberforce, 4 July 1873, B.M. Add. MSS. 44,542, fo. 135.
89 Parl. Debates, series m, vol. ccxv, cols. 1465 ff.
40 Gladstone to Tait, 4 July 1873, B.M. Add. MSS. 44,542, fo. 135.
41 Quoted in Davidson, R. T. and Benham, W., Life of A. C. Tait (3rd ed. London, 1891), 11, 121Google Scholar.
42 Tait to Gladstone, 5 July 1873, B.M. Add. MSS. 44,331, fos. 105-8.
43 , Davidson and , Benham, op. cit. 11, 121Google Scholar and , Selborne, Memorials (London, 1896-1898), Part 11, vol. 1, p. 312Google Scholar.
44 By 39 and 40 Viet. c. 59. Rules for assessors were made under this Act by Order in Council dated 15 Nov. 1876 (Phillimore, op. cit. II, 975).
45 19 July 1873.
46 Gladstone to Rev. H. E. Lowe, 22 Oct. 1873, B.M. Add. MSS. 44,440, fos. 242-3. Also in Lathbury, op. cit. 1, 170-1.
47 3 and 4 Will. IV, c. 41 which created the Judicial Committee of the Privy Council.
48 Thomas Pemberton Leigh.