THE sin of appealing to or appearing before secular Courts of law upon matters of doctrine is one from which neither party in the Church of England has been quite free. But in the confusion of mind as to the different provinces of Church and State into which years of Erastianism had plunged us, it was perhaps no wonder that those who felt themselves aggrieved in doctrinal teaching should, in an "Established Church," that is, in a Church muddled up with the State, suppose that a true remedy lay in the Courts of law, and confound the law of the land with the law of GOD; nor, even yet, has this confusion entirely disappeared.
It is not the least of those things which we owe to Mr. Bennett that his action when prosecuted has set this matter in a clear light, and we may hope that, following his example, the Catholic section of the Church will never again make any appearance in secular Courts of law on doctrinal subjects, as either plaintiffs or defendants. [I deeply regret to add that since these words were written a clergyman has appeared before the lay Courts as defendant on a purely doctrinal question.]
But, as we shall see, the true way of regarding this matter did not dawn even on Mr. Bennett at first.
In 1853 Archdeacon Denison was prosecuted by the Evangelical Alliance, under the name of Mr. Ditcher, the Vicar of South Brent, in Somerset, for his Eucharistic teaching.
After some preliminary sparring the Court of Queen's Bench "Mandamus'd" the Archbishop of Canterbury to hear the case under the Church Discipline Act--the Bishop of Bath and Wells having refused to proceed. Upon this the Archbishop held a Court at Bath, "contrary to the Canons," says Mr. Bennett, "invading the Diocese of Bath and Wells." He, or rather his "assessor," decided that the "legal" meaning of the Articles was against the Archdeacon, who appealed to the Provincial Court of Arches. There, in 1857, the "Dean" reversed the judgment at Bath, and the Evangelical Alliance appealed to the Privy Council. But the case reached no decision "on its merits," for the whole proceedings were quashed on a point of law, depending on the fact that the Archdeacon's living of East Brent was in the gift of the Bishop of Bath and Wells.
The result was a curious illustration of the need of ritual in teaching doctrine, as the Archdeacon was wont to point out; for whereas on this escape the parishioners of East Brent drew the Archdeacon and Mrs. Denison in their carriage from the boundaries of the parish to the church in triumph, yet when a few years later he endeavoured to set forth those same doctrines by a very moderate amount of ritual, a great deal of opposition arose.
But the Tractarian leaders were of course dissatisfied with such a lame and impotent conclusion, and a protest was speedily drawn up against the Bath judgment of the Archbishop's Court. It affirmed the propositions for which the Archdeacon had been condemned, and was signed by all the leaders of that time: Pusey, Carter of Clewer, Keble, Grueber, Neale, Oxenham, Isaac Williams, Woodford, and others.
Mr. Bennett was, however, not contented with signing protests, and he put forth, in 1857, "An Examination of Archdeacon Denison's Propositions of Faith on the Doctrine of the Holy Eucharist." It had a prefatory letter to the Bishop of Bath and Wells, in which he says that he holds and believes, and intends to teach, maintain, and propagate, as far as in him lies, the identical propositions condemned by the Archbishop's Court. He challenges the Bishop to try the case over again in his person, the benefice of Froome-Selwood not being in the Bishop's patronage. The Bishop had no wish to do so.
It is worth while to point out that Archdeacon Denison's opinion of these Courts quite agreed with Mr. Bennett's, to be presently explained.
"If there had been so much as the shadow of a shade," the Archdeacon says, in his "Notes of my Life, 1878," "of a decently fair tribunal, rather, I should say, if there had been any tribunal in England recognized by the Constitution in Church and State as competent to pronounce in matters of doctrine, I might possibly have considered about taking the case upon its 'merits! But fairness and competency were alike lacking. And, indeed, where could a decision upon the merits be had, entitled to the smallest respect? From the packed Commission? From the packed Court? As for the Courts of first and second appeal--the first in its subordination to the second, the second in its own nature--they were devoid of legitimate authority in matters of Faith and Worship."
For these reasons the Archdeacon thought himself quite justified in sheltering himself under a legal point. But in 1869 it was Mr. Bennett's own turn to be prosecuted for these same opinions. In 1867 he contributed to a volume called "The Church and the World," edited by Mr. Orby Shipley, an essay on "Some Results of the Tractarian Movement of 1833." In the same year he published a pamphlet, "A Plea for Toleration in the Church of England," in the form of a letter to Dr. Pusey. For the Eucharistic teaching in these writings he was prosecuted by the "Church Association." The nominal prosecutor was Mr. Sheppard, of Froome, who afterwards much regretted having allowed the Association to use his name. We, I think, can hardly coincide in this regret, inasmuch as the result was the complete vindication of the highest Eucharistic teaching in the Church of England and the most disastrous defeat which the Protestant party has suffered in the Church of England since the Restoration.
There is not unfrequently traceable in Mr. Bennett's writings an evidence of the busy life he led as a parish priest. To the haste of composition caused by his many parochial labours must be ascribed two unfortunate expressions in his letter to Dr. Pusey. In the two first editions he used the word "visible" concerning the Presence of our Lord upon the altar. The word is, of course, indefensible except in the sense in which he quotes Bishop Cosin, "to eye with their minds the Body and Blood of Christ," and he had himself in other works used the very opposite word, "invisible," as applied to the Presence. In the same pamphlet he wrote--
"Who myself adore and teach the people to adore the consecrated elements," an inaccurate expression, [The incorrect phrases occasioned remonstrance before there was any talk of prosecution] and for these passages he substituted in the third edition, at the suggestion of Dr. Pusey himself, the words--
"The real and actual Presence of our Lord under the form of Bread and Wine upon the altars of our churches," and, "Who myself adore, and teach the people to adore, Christ present in the Sacrament under the form of Bread and Wine, believing that under their veil is the sacred Body and Blood of my Lord and Saviour Jesus Christ.
"My meaning, and that which passed through my mind," he says, "in writing the original passages, was precisely the same as that which is conveyed by the words substituted, but as the original words were liable to a different construction from that in which I used them, I therefore most willingly in this edition adopt another formula to express my meaning."
A brief history of the case will be instructive.
The Cause was instituted in the Arches Court, by virtue of letters of request from the Bishop of Bath and Wells, on April 23, 1869, but the Dean, Sir Robert Phillimore, refused at first to accept them. He was, however, ordered by the Privy Council to do so, and the case was at last heard on June 16, 17, and 18, 1870. The Dean struck out one of the "Articles" which referred to "the reception by the wicked," on the ground that no proof of Mr. Bennett's opinions on this subject had been adduced. He further "reformed the articles" of accusation by allowing the substituted words of the third edition. On July 23, 1870, Sir Robert Phillimore decided in favour of Mr. Bennett on all the three remaining points, the Real, Objective Presence, the Sacrifice, and the Adoration. He further pronounced the opinion, for which he was afterwards scolded by the Privy Council, as being beyond the scope of what he had to judge, that--
"the objective, actual and real presence, or the spiritual, real presence, a presence external to the act of the communicant, appears to me to be the doctrine which the formularies of our Church, duly considered and construed so as to be harmonious, intended to maintain."
From this judgment the Church Association of course appealed to the Judicial Committee of the Privy Council. Before them the case was heard on November 28, 29, and 30, and December 1 and 2, 1870. Their Lordships took a long time to consider whether they should pronounce "a judgment of policy," and having finally decided that the best policy would be honesty, they also pronounced in favour of Mr. Bennett on all points, on June 8, 1872.
However little we may like the Judicial Committee as a Court of Appeal in Ecclesiastical Causes, and remarkable as some of their pronouncements in things spiritual have been, it is impossible not to admire the clearness and fairness with which this particular judgment was drawn up. If such a Court was to adjudicate on such questions at all, it could not lay down for itself principles better than these--
"This Court has no jurisdiction or authority to settle matters of faith or to determine what ought to be the doctrine of the Church of England.
"It is not the part of the Court of Arches, nor of this Committee, to usurp the functions of a Synod or Council. Happily their duties are much more circumscribed, namely, to ascertain whether certain statements are so far repugnant to or contradictory of the language of the Articles and formularies, construed in their plain meaning, that they should receive judicial condemnation."
They further laid down that they had nothing to do with the opinions of those who drew up the Articles, etc., some of whom were on one side, some on the other, but solely with the result of their contests and deliberations as found in those formularies of the Church on which the compilers managed to agree.
Lastly, they remind us frequently that "these proceedings are highly penal," and that the person accused of false doctrine is in the position of a prisoner at the bar in whose favour every doubt must be construed. It may be as well that this principle should be remembered by any one who feels inclined to appeal to the Privy Council on questions of doctrine, for we may be well assured that the Judicial Committee will never condemn any one for doctrine if they can find any possible loop-hole.
Happily it was abundantly clear that Mr. Bennett's words were within the meaning of the Articles of Religion and the other formularies of the Church of England, and from the opinion which their Lordships gave to this effect we may be allowed to draw a somewhat obvious conclusion. The said Articles are for the most part directed against the additions of the Church of Rome to the faith. Whatsoever, therefore, was the doctrine of the Church before the "Reformation," and was not excluded by these barriers against Roman additions, must be the doctrine of the Church of England still. The doctrines for which Mr. Bennett was prosecuted, not being so excluded, must therefore be the doctrines of the English Church, and one can only commend the honesty and logic of those who in consequence of the Bennett judgment, being unable to accept those doctrines, left the Church for Dissent.
Throughout the proceedings Mr. Bennett disregarded them entirely. The Citation, was served on him July 26, 1869. All he would reply to the person who brought it was, "Put it down on the table!" And "laid on the table" it remained. "No appearance," says the judgment, "was made to the Citation, and in default of appearance Articles were filed in accordance with the practice of the Court."
Nevertheless, mistaken reports were spread abroad, and he wrote to the Guardian, to contradict them.
"I observe a statement in your paper which is incorrect. It is stated on p. 695 that 'the Commissioners, the proceedings before whom were public, examined witnesses on oath and heard counsel on both sides. The counsel for Mr. Bennett cross-examined some of the witnesses on the other side.'
"I beg to inform you that I never employed any counsel in this case. I know nothing of the 'proceedings,' and I have never interfered in what is going on in any way whatever. I should be very much obliged to you to state this."
Mr. Bennett's resolve thus to ignore all the Courts from the beginning--being, as it is, one of the most important lessons which he has taught us--deserves clearly to be explained by a history of his opinions on the subject, as shown in his own writings.
That the Church has an inherent right to settle her own doctrines without interference by the State is clear--the province of the State is not Religion. The matter becomes confused when any National Church suffers from so-called "Establishment." But the right remains, and it is clear that when any point of doctrine is in dispute it is the business of the Church herself to settle what her own doctrine is, and to appoint the authority which shall adjudicate on any question that is raised.
The first time that the matter of the Courts became acute in Mr. Bennett's lifetime was the battle of Gorham, in 1850. The Arches Court declared the doctrine of Baptismal Regeneration to be an essential doctrine of the Church of England, and pronounced against Mr. Gorham, who had denied it. Mr. Gorham appealed to the Judicial Committee, as already recorded.
At this point Mr. Bennett published two sermons against the Privy Council as a Court of Appeal in doctrinal questions, together with a Protest, and a petition to the Queen to give licence to the Convocation to devise a proper appellate tribunal for "determining with the authority of the Church all questions of doctrine and other matters purely spiritual," the decisions of such Court to be binding on the temporal Courts. He drew up also addresses to the Archbishops and the Bishop of London to the same effect.
In these writings he calls the Arches Court "the Spiritual Court of the Church," and gives the history of appeals in spiritual cases. Before Henry VIII., he says, appeals were made to Rome, but by an Act in the twenty-fourth year of his reign such appeals were to be finally determined by the Archbishop of the Province. The next year, however, it was allowed to appeal from the Archbishop to the King in Chancery, and the King appointed "Delegates" who were to hear and determine appeals. This continued till the time of William IV., when the Court of Delegates was abolished and the Judicial Committee of the Privy Council was appointed to hear the appeals. Thus the Judicial Committee is a Court appointed solely by the State, for Convocation had not been called together since 1717, and the Church had in no way sanctioned any such Court. It was an aggravation that the Court 'might consist of persons out of communion with the Church. "But it is," says Dr. Pusey, "an aggravation only. The fundamental defect is that the doctrines of the Church should for any purpose be authoritatively determined by any other than the Church herself."
Mr. Bennett further makes the important point that the Presbyterian Church of Scotland, though "Established," is "exempted from the power of the civil Courts in causes of doctrine, the State enforcing the decrees of the Governing Body, and its General Assembly is the sole and final Court of Appeal in such causes, whereby the injustice of a contrary law in the Church of England is the more manifest."
In the same way those who protested against the judgment of the Archbishop's Court in the Denison case, appealed to--
"a free and lawful Synod of the Bishops of the Province of Canterbury; and then, if need be, to a free and lawful Synod of all the Churches of our Communion, when such by GOD'S mercy may be had."
Next came, 1868, the judgment of the Privy Council (in which they displayed their learned theology by talking about "the Symbolical use of Water in Baptism!") in the ritual case of Mr. Mackonochie, of S. Alban's, Holborn, and again Mr. Bennett protested. He published a pamphlet, "Obedience to the Lesser [of course, the State]; Disobedience to the Greater [the Church]."
In this he points out that, in this condemnation of ritual, was involved, and was meant to be involved, doctrine also, and he prophesies (what was speedily fulfilled) that "The doctrine of the Real Presence of our Blessed Lord in the Eucharist will be called in question to be judged by that very same Court." He wound up this pamphlet by inviting all who agreed with these ideas to sign a declaration repudiating the authority of the Privy Council Court.
In the next year, 1869, he published "State Interference in matters Spiritual," a reprint from papers written by Richard Hurrell Froude about 1833, in which Froude came to the conclusion that, by the gradual but complete alteration of the Constitution, "the CONDITIONS on which Parliament was by our predecessors allowed to interfere in matters spiritual are cancelled."
This opinion of Froude's Mr. Bennett adopts in his preface to the reprint.
Hitherto he had allowed the Arches Court to be one which Churchmen might obey, but when his own case was before that Court he refused to appear before it (as we have seen), on the ground that it had held itself not to be an independent Court, but to be bound by the decisions of the Privy Council. Its authority was thus vitiated, and it ceased to have any more authority than the Judicial Committee itself. This conclusion appears unavoidable, and this attitude of the Court of Arches left the Church of England without any real Court whatever, and amply justified Mr. Bennett's disregard of it.
We may well follow here Mr. Bennett's subsequent doings in this part of the contest.
In 1874 came the Public Worship Regulation Act--which stands self-condemned by its very title as purely Erastian. The Court which it set up was, of course, without the smallest Church authority, and Mr. Bennett made his protest in a sermon preached at Bovey Tracey on June 16.
"You must now make your choice between an Erastian Establishment and a Divine Church. You must say whether Christ Jesus is the director of your faith or the Queen's Judges in a temporal Court."
The Public Worship Court had at least this advantage, that no one could possibly suppose any conscientious obedience was due to it.
But it had brute force behind it, and, as a result, two priests who disobeyed its usurped authority were imprisoned. Mr. Bennett thereupon, on Advent Sunday, 1880, preached (and published "by request") a sermon "On the Authority of the Church, in reference to the Imprisonment of Thomas Pelham Dale, Priest, and Richard William Enraght, Priest." In this he replies to the argument "that we should obey the law" by the simple fact that the law in question is the law of the Parliament without the concurrence of the Church. "We must obey God rather than man," and "do things contrary to the decrees of Caesar."
He put forth also at the same time a little pamphlet, "Is Thomas Pelham Dale, Priest of the English Church, now a prisoner in Holloway Gaol, RIGHT or WRONG?" In this he points out that the priests of the English Church bound themselves to obey the laws of the Church and Realm, but that the Public Worship Regulation Court and the Privy Council Committee were creations of the Realm but not of the Church. Further, that the decision they had made as to the vestments, etc., was on grounds which were absurd, namely, that the Advertisements, supposed to have been put forth by Queen Elizabeth, repealed the Ornaments rubric which was inserted in the Prayer-book in the time of Charles II.! Moreover, that Sir Fitzroy Kelly, one of the Judges in the Privy Council Court, openly said that the judgment of the Court in an important case was made only for expediency or policy and was utterly bad in law. Mr. Bennett quotes Dr. Pusey, "It is not the law but a misinterpretation of the law which Mr. Dale has contravened." Mr. Dale was therefore Right, is his answer.
His last publication on this subject is a very curious one, "A letter to the Priests of the English Church, written in the great snowstorm of January 18 and 19, 1881."
There had been arranged for that day a meeting of twenty-four representative priests at the Westminster Palace Hotel, to take council as to what should be done in the then position of affairs.
At that time three priests had been imprisoned as the result of the Public Worship Regulation Act: Mr. Dale, Mr. Enraght, and now Sidney Faithorne Green. It is worth while to note in passing, as a hint for times to come, that their going to gaol, instead of yielding, practically destroyed the Act, and that the certainty that Mr. Bennett would follow their example probably prevented him from being prosecuted for ritual. But this result was not then foreseen, and Mr. Bennett compares the state of the Church to the fearful tempest outside.
"The snowstorm raging without was a type (as it seemed to me) of the storm raging within; a false imprisonment had been made of three priests, and they had been placed in common gaols, cut off from their people; and a sentence of deprivation had been passed upon another, by which he was cut off from his priestly offices and from administering the Sacraments, and his goods were confiscated to the law; and all this by an unlawful judge and in an unconstitutional Court. It seemed a great storm. The eyes of the Church were blinded by gusts of a terrific hurricane, driving hither and thither, so that men were losing sight of all truth--confused and bewildered in the arms of Erastus and Caesar."
The twenty-four clergy, under the chairmanship of Archdeacon Denison, drew up a memorial to the Convocation--that the new Court possessed no authority from the Church but was of the Realm alone. They therefore prayed that no further proceedings should be allowed by the Bishops, under the judgment as to the Ornaments rubric, till a proper Court was established, and that no attempt be made to alter the Ornaments rubric.
This was Mr. Bennett's last publication on the subject of the usurping Courts, and completes the story of his opinions on this matter. It remains for us to finish the story of his own prosecution.
It is traditional that on the days when the case was before the Courts, Mr. Bennett, though he could not in any way recognize their powers, nevertheless celebrated the Eucharist with the "intention" that the result might be overruled to the vindication of the truth. We may well believe that those prayers were answered.
Soon after the promulgation of the Privy Council judgment, June 8, 1872, came the "Octave" at Froome. On this some of the newspapers, unaware that this was now an annual festival, announced that there had been great rejoicings at Froome on account of Mr. Bennett's acquittal. But the only special way in which this was done publicly was by a solemn Te Deum after the judgments given by the Arches Court and by the Judicial Committee.
And during the Octave of 1872, the only allusion which Mr. Bennett made publicly to the case was at the meeting of the local branch of the English Church Union, at which the President of the E.C.U. (then the Hon. Charles Wood, now Lord Halifax) took the chair. Mr. Bennett said that the one objection which he had to the judgment was that they had called him "The Respondent." Now, a "respondent" is a person who makes an answer, and he had certainly not made any answer of any sort.