to be compatible with the highest philosophy, and peculiarly consonant to our present faculties and position in the universe. And if in this ocean of disquisition fogs have been often mistaken for land,' as in so many other regions of science, we may at least affirm that the charts are more correctly laid down than ever before; the bearings better ascertained; and that our can hardly be shipwrecked on this great argument, if common caution be observed in the course we pursue.

ART. II.-1. Toleration Act Amendment Bill.

Ordered by the

House of Commons to be printed. 9th August, 1848. 2. Clergy Relief Bill. Ordered by the House of Commons to be printed. 5th March, 1849.

3. Clergy Relief Bill, as amended by the Select Committee. Ordered by the House of Commons to be printed. 3rd April, 1849.

4. Clergy Relief Bill. Brought from the Commons, and ordered by the House of Lords to be printed. 25th July, 1849.

AS

S it is sufficiently well known that there are various matters, civil and ecclesiastical, with respect to which the clergy are looking for relief by legislation, it is easily to be conceived that many a member of that body may have had his curiosity agreeably excited during the past Session, by observing in the newspapers certain parliamentary discussions from time to time under the inviting title of Clergy Relief Bill.' Nor is it more difficult to imagine his feelings of disappointment, when, upon examining a little further into the matter, he may have found, that the clergy relief proposed to be granted was not a relief of any sort to clergymen continuing such, but simply a relief, to those disposed to accept of it, and so far as this depends on legislation, from being clergymen at all. We trust, however, that the choice of this title, infelicitous at best, and degrading if it had been made with full knowledge and consideration, is to be ascribed not to the mover of the Bill, Mr. Bouverie, but to some officer of the House of Commons, whose duty it may be to dress the outside of bills, and to know nothing of what is within, and especially to select for what we understand is termed, under a recent regulation, the short title' of a Bill, some designation not running beyond a very limited number of syllables. Such a proceeding is doubtless recommended by convenience, with a view to the frequent repetition of the title of Bills required by the rules of the House at their various stages; but it has led in the instance before us to a misnomer. Members of parliament,

however,

however, have had to use this title in default of a better, and we must follow their example.

The clergy then, whom Mr. Bouverie proposes to relieve, are, as appears from the longer or statutory title of the Bill, Persons in Holy Orders of the United Church of England and Ireland, declaring their dissent therefrom.' The subject thus offered to our view is indeed limited in scale, but of the very highest importance and it is one to which we now the more earnestly desire to draw the attention of all persons interested in the permanent and essential welfare of the Church, because its importance is rather latent in the principles it involves, and in the ulterior application of those principles, than betokened by notes lying upon the surface. The general sentiment with regard to clergymen who have been seduced from their loyalty, in whatever direction they may have wandered, is undoubtedly a desire that, if they cannot see their error and repent of it, the Church should be relieved from all further connection with them; and, finding that the reported purpose of Mr. Bouverie's Bill is coincident with this wish of their own, most men are content to pass it by with a sentiment of favour as to its end, which leaves not much room for jealousy as to the means employed in attaining it.

On

Nor is it our intention at all to detract from the value justly attaching to any measure which, without incurring greater evils, should clear up and disentangle the ambiguous relations now subsisting between the Church and her seceding ministers. the contrary, we utter from the heart our fervent aspirations for the success of such a measure: and do not hesitate to affirm, that the more clear and trenchant the line of demarcation drawn, the more complete and absolute for all purposes the legal liberty bestowed, the better for all parties concerned.

The primary purpose of Mr. Bouverie's Bill was to obtain the release from prison of a certain Mr. Shore, who recently officiated as a clergyman of the Church of England, and who now acts as a dissenting minister in the same parish, district, and chapel. It is perhaps on the whole fortunate that that weak and ill-advised person has regained his liberty by the discharge of the bill of costs, the non-payment of which was the sole cause of his confinement: because the knowledge that a gentleman in holy orders was in prison, with the prevailing ignorance and the frequent misstatement of the cause, was unfavourable to the dispassionate discussion of the questions involved in the Bill.

We shall not turn aside from our purpose, which is to promote such consideration, by entering upon the merits of the case of Mr. Shore. No man need hereafter attempt, on the part of the

Bishop of Exeter, that which he has performed so effectually for himself in his Letter to the Primate: and we shall only offer, in justice to that prelate, a single remark upon a matter of fact in connection with it. Before the appearance of the Letter, we observed that it was usual with many of the liberal members of the House of Commons to make Mr. Bouverie's Bill an occasion for inveighing against the vindictive, bigoted, and tyrannical proceedings of the Bishop; but from the day of its publication the whole crowd of acrimonious critics at once became silent and abashed. Ut videre virum, fulgentiaque arma per umbras, Ingenti trepidare metu.

Or let us rather say, it was the force of facts which brought about this change in the tone of critics in some sense responsible: abuse and falsehood were left to a meaner order of assailants out of doors; but the debates in parliament from that moment lost their personal aspect, and turned upon the general merits of the measure. We must add with pain, that the perusal of the documents contained in the Bishop's letter left upon many minds a conviction that, of the parties engaged, not the Bishop, not Mr. Shore, but an individual of higher temporal rank and name than either, had by far the greatest reason to deprecate any further controversy respecting the causes which separated Mr. Shore, and the chapel in which he officiates, from the Church of England.

Turning then to the more general aspect of the question, we have to remind the reader that the proceedings in the case of Mr. Shore brought fully before the public the state of the law in regard to clergymen desiring to separate themselves from the Church. Numerous as had been the cases of such clergymen during the long period since the passing of the Toleration Act, the public at least, and the parties concerned-though we presume it was not so with lawyers-had up to the present day remained in very general ignorance of their legal position. It was indeed well known what the effect of the Ecclesiastical Law must be in regard to that class of persons. In the view of the Church, a character had been impressed upon them at their ordination to the priesthood, which, strictly understood, was altogether indelible by schism, by heresy, or even by apostacy. As a baptized person remains under the obligations incurred at baptism, and retains in a certain sense and for certain purposes the powers and qualifications which it conferred-so a priest, renouncing (with whatever aggravation) the vows which he has made and the gifts which he has received, is not absolved from the one, but remains under his whole responsibility, and cannot lose the possession of the other, though he may forfeit the right to any exercise of his sacerdotal functions. Upon repentance and return to

duty,

duty, as there can be no re-baptism, so there can be no re-ordination. Accordingly, where Church-law and State-law exactly coincide, a clergyman whose inward sentiments might have become inconsistent with the discharge of his sacred office must still continue through life under his original obligations in respect to it, externally and legally, as well as in a religious sense.

Among ourselves, indeed, there does not appear to be any law by which a clergyman, unless holding a cure or benefice, can be compelled to perform any clerical duty whatever. All those, therefore, who are inclined simply to abandon their calling, have always been practically free to take that course. But the case was different with persons who, departing from the Church, might become dissenting ministers of any existing body, or might fashion a new mode of faith and of ministry for themselves; there was no case, we believe, applicable at all points to the present state of our statute law and to acts of simple non-conformity in an unconsecrated building, so that it had to be determined by the sentence of a Court whether such acts done by a clergyman were or were not legally punishable. The negative course of desisting from the exercise of clerical functions might be adopted with impunity: the question remained whether those clergymen who added a positive infraction of the laws of the Church, by taking to themselves the discharge of religious offices forbidden by her, were in like manner secure, or were amenable to the jurisdiction of her tribunals.

It was held on the side of Mr. Shore, that his case (which may be taken as representing all cases whatever of Protestant dissent) was covered by the Toleration Acts, as they take no distinction in terms between clergymen and laymen of the Church of England, as against the former. The eighth section of the Toleration Act (1 W. & M. c. 18) provides that no person dissenting from the Church of England, in holy orders or pretended holy orders, or pretending to holy orders,' if he take certain oaths and make certain declarations, shall be liable to a penalty for officiating in any congregation allowed by the Act. The nineteenth of George III. (c. 44) uses the same language in describing the persons who were to obtain benefit by the Act. In 1742 (Burn, ii. 189) Lord Hardwicke said,—

'The Act of Toleration was made to protect persons of tender consciences, and to exempt them from penalties; but to extend it to clergymen of the Church of England, who act contrary to the rules and discipline of the Church, would introduce the utmost confusion.' The statute of 1812, however, extends its relief, on the conditions specified in the Act, to every person who shall teach or preach at or officiate in or shall resort to any congregation of Protestants.

Protestants (c. 155, sect. 4). In Carr v. Marsh, a proceeding against a clergyman for preaching in a chapel of the Church of England without consent of the incumbent, Sir John Nicholl gave his judgment that the effect of the Act of 1812 was confined to Dissenters.* And recently, in the case of Mr. Shore, Lord Denman has declared that he

'cannot divest himself of the character of a priest in holy orders, with which he has been clothed by the authority of the Church of England, when he was ordained by one of the Bishops, and when he promised canonical obedience to that Church. From that character, or from that vow or promise, he can only be released by the same authority which conferred the one and enjoined and received the

other.'

Mr. Shore has prosecuted the case by appeal, with no other effect, we apprehend, than that of further confirmation to this view of the law.

Thus then the broadest distinction is declared to exist between the civil liberty of laymen and of clergymen to dissent from the Church. With respect to acts of non-conformity committed by the former, within the conditions of certain statutes, the discipline of the Church is not merely enfeebled, but so far as regards all direct penal consequences annulled. annulled. But with respect to the clergy, it appears that the Toleration Acts are now clearly shown to have no legal effect; and the discipline of the Church is in full force with regard to them, qualified only by the dilatory, cumbrous, or costly nature of any process which may be necessary in order to apply it through the medium of the existing ecclesiastical courts. Nor is it difficult to find a distinction of principle which may be thought to lie at the ground of this distinction in fact. A layman, as such, is under the vows of his baptism; a priest, as such, is under the vows of his priesthood. A non-conforming layman, whatever be his relation to the particular laws of the Church, does not renounce his baptism; but a nonconforming priest does renounce his priesthood. And as we presume our law would not recognise the renunciation of Christianity, so neither—as is now made to appear-will it recognise the renunciation of priesthood. If, however, this be a valid distinction, it is so, we apprehend, rather in the abstract than historically. There ought, as we think, to be a great difference in the strictness of discipline with respect to laity and to clergy; but the Legislature has proceeded in these matters too much at hap-hazard,

*Phillimore's Burn, ii. 220, e. We have pleasure in acknowledging the valuable labours of Dr. R. Phillimore in his edition of Burn, as well as in respect to other subjects connected with his branch of the legal profession.

and