Act of 1840, nor does it appear to have occurred to anyone at that early period of the jurisdiction that the law and doctrine of the Church on so momentous a subject as the administration of baptism lay in danger from being defined by the legal councillors of the Sovereign and determined by Her Majesty on their advice.

The next case in the Privy Council Reports is that of the Rev. Erskine Head, a clergyman of the diocese of Exeter, against whom proceedings were instituted by his Bishop, under the Church Discipline Act, for having openly affirmed positions in derogation of the Book of Common Prayer in a published letter. The question decided by the Judicial Committee was one of strict law as to the form of proceeding under the new Act, and this point being decided against the defendant, the cause was remitted to the Court of Arches to be heard on the merits. The Bishop of London sat on this appeal, with Lord Campbell, V. C. Knight Bruce, and Dr. Lushington. Mr. Head was subsequently condemned, with costs, by the Dean of the Arches and suspended ab officio et beneficio for three years, from which sentence he did not again appeal.

The diocese of Exeter has been fruitful in ecclesiastical suits ever since it has been blessed with a prelate skilled in the law of the Church and jealous of his pastoral authority. Bishop Philpotts next turned these weapons against the Rev. James Shore, a clerk in holy orders, who had committed the offence of publicly reading prayers in an unconsecrated building at Berry Pomeroy. The question really involved in the case was whether a clergyman of the Church of England can divest himself of his character and turn dissenting minister. The Dean of the Arches held that he cannot. Accordingly, Mr. Shore was declared to be obnoxious to ecclesiastical censure, and admonished, but as it was not a case to call for his deposition, this was all that could be done. Mr. Shore appealed to the Privy Council, and the judgment of the Court of Arches was affirmed, with costs, by a Court consisting of the Archbishop of York, the Master of the Rolls, Lord Campbell, Dr. Lushington, and Mr. Pemberton Leigh, now Lord Kingsdown.

These passages of arms were, however, of small account in comparison with the great Gorham case, in which the Bishop of Exeter had resisted the institution of a beneficed clergyman on theological grounds-obtained a sentence against him in the Court of Arches-and was finally defeated in the Privy Council. As this suit originated in what is called by the canonists a duplex querela, and not under the Church Discipline Act, the

prelates who are members of the Privy Council had no seats of right at the board, nor was their presence required by the statute. But Her Majesty was advised that as this cause raised questions deeply interesting in a theological point of view to a large portion of the clergy and the laity, it was proper to take the opinions of the episcopal members of the Privy Council upon it. The Archbishops of Canterbury and York and the Bishop of London were therefore summoned, by the Queen's command, to attend, in addition to the six lay members of the Privy Council who heard the appeal.* The opinions of the prelates were fully expressed by each of them in the Committee before the judgment was framed by Lord Langdale. But it was afterwards intimated that the Bishop of London and one of the lay members dissented from the terms of the judgment adopted by the seven other Privy Councillors. The Gorham case has been so often and so fully discussed in these pages, and elsewhere, that it would be a waste of time to enlarge here upon the principles it established. Those principles have constantly been maintained and adhered to in all the cases which have since been decided. They clearly laid down that the sole duty of the Court of Appeal was to ascertain and interpret the written law of the Church of England, and not to enter upon the field of theological controversy; and it is satisfactory to recollect that this view was fully sanctioned by Archbishop Sumner and Archbishop Musgrave, and has been confirmed by every legal authority who has since had occasion to examine that decision.

It is unnecessary to dwell upon the case of Craig v. Farnall, or that of Mr. Speer, or that of Mr. Bonwell. Proceedings were instituted under the Church Discipline Act against these clergymen by their diocesans, for acts of incontinence or debauchery, and the suits were eventually heard on appeal by the Lords of the Judicial Committee and one or more prelates. But it is important to remark the essentially criminal character of these cases. Offences charged against the clergy may be offences against the moral obligations, or they may be offences against the dogmatical precepts, of the Church, but the jurisdiction and procedure are identical. The consequence that the Court proceeds with the circumspection peculiar to English Judges in the application of penal laws. In Mr.

*Every member of the Judicial Committee was summoned on this occasion, but six only attended besides the prelates. The Judicial Committee consists of about eighteen lay members, but of these several take no part in its proceedings.

Craig's case the sentence which had been given against him was reversed on legal grounds, because the offences charged were not proved with legal strictness. It is obvious that this state of things is an immense security to the lower clergy. They cannot be denounced, prosecuted, and condemned on mere surmise or moral presumption; they live under the protection of the law; and except by the law and in conformity with the law neither their conduct nor their opinions can be made the subject of proceedings against them-a powerful protection of personal freedom and intellectual independence, things not less dear, we hope, to the clergy than to the laity of England, in the measure of their duties. Yet, strange to say, the clergy have raised their voice against the civil power in the Final Court of Appeal which is the safeguard of their own liberties, and which, if taken away, would consign them to the uncontrolled authority of clerical boards and episcopal visitations. Although questions of doctrine may occasionally arise on these cases, it is not the object of the proceedings to decide doctrine at all. The question before the Court is simply whether the defendant has done an act which renders him obnoxious to legal punishment--everything else is incidental; but the difference between a legal and a clerical tribunal is that the former looks exclusively to the particular case on the evidence, the latter seeks to lay down broad principles, to declare doctrines, and to extend the common law of the Church, at the risk of grievous injustice or no justice to the individual who is the subject of the prosecution. It is as a Criminal Court especially that the Final Court of Ecclesiastical Appeal must be regarded. In the ecclesiastical judgments collected in this volume, all, except that of Liddell v. Westerton, are of this penal character, that is, they involved penal consequences to clergymen by depriving them of their functions

and emoluments.

In the case of Mr. Poole, which was argued before the Archbishop of York and five lay members of the Privy Council in 1861, this very point was strongly pressed. Mr. Poole was a stipendiary curate at St. Paul's, Knightsbridge. The Bishop of London had seen fit to revoke his license. Mr. Poole appealed to the Archbishop of Canterbury in person, who confirmed this decision, for it was an administrative rather than a judicial act of the Bishop. Nevertheless Mr. Poole endeavoured to prosecute his appeal to the Queen in Council, but it was decided that no right of appeal lay, and that the revocation of curates' licenses is a discretionary act of the bishop, and not a sentence between litigants. This case is important, as it shows that curates do not possess the

same protection in the Court of Appeal as the beneficed clergy, and that they have in vain sought to obtain it. The law has not given it to them.

The well-known dispute between Mr. Liddell and the Churchwardens of St. Paul's and St. Barnabas was not a penal or a doctrinal question, except in so far as doctrines may be inferred from church architecture and church ornaments. The question tried was simply whether the ornaments introduced by the incumbent of St. Paul's into his churches are consistent with the injunction prefixed to the Book of Common Prayer, that such ornaments shall be retained and be in use as were in this Church of England by the authority of Parliament in the second year of King Edward VI.' The suit not being prosecuted under the Church Discipline Act, the prelates had no voice in the decision of it, but Her Majesty again commanded the ecclesiastical members of the Privy Council to be summoned: the Archbishop of Canterbury and the Bishop of London attended; the lay members of the Committee were Lord Wensleydale, Mr. Pemberton Leigh (Lord Kingsdown), Sir John Patteson, and Sir William Maule.

We pass over the proceedings instituted against the Rev. George Anthony Denison for opinions expressed in a sermon preached by him on the Eucharist, because they fell to the ground on a technical point-the Privy Council being of opinion that the first step in the suit was not taken within the time required by Act of Parliament. was not therefore heard on the merits. said in the last ecclesiastical appeals heard by the Privy Council, which have drawn public attention in so marked a manner to this judicature-we refer to the case of Mr. Heath, and the proceedings against two of the authors of Essays and Reviews.'

Mr. Denison's case But this cannot be

Mr. Heath was a beneficed clergyman of peculiar opinions, in the Isle of Wight, who published a volume of sermons. Had these sermons come before ourselves, or any ordinary tribunal of literary criticism, we should have dismissed them as ill-written, unintelligible, and absurd productions. But the clergy of the island urged the bishop of the diocese to take more formidable measures, and accordingly proceedings were instituted against Mr. Heath under the 13 Elizabeth, a highly penal statute, which sentences to absolute deprivation clergymen advisedly maintaining any doctrine directly contrary or repugnant to any of the Thirty-nine Articles. It can hardly be disputed that although Mr. Heath was a learned and pro

bably a worthy man, he was entirely unfitted by the extreme singularity of his opinions to be the parson of an English parish. A clergyman who deliberately applied himself to convince his parishioners and all England that the idea of forgiveness of sins as having anything to do with the Gospel must be totally rejected,' could hardly remain a minister of that Gospel in the received sense of words. And some of these strange views were expressed in terms which would, from any other source, have been considered blasphemous. There was, therefore, no doubt on the part of the legal advisers of the Crown, any more than on that of the Archbishop of York and the Bishop of London, that Mr. Heath lay within the mischief of the statute. An attempt was made to show that a man could not be guilty of heresy whose language was unintelligible; but the Court held that the meaning of his doctrines was of no account provided it was clear that they are repugnant to the Articles of the Church of England. Mr. Heath was therefore deprived, and justly deprived, of his parish. But the appeal to the Queen in Council secured to him, and to all the clergy, two important results. It was ruled that in order to conduct a suit of this nature the charge must accurately and precisely specify the passages to which heresy is imputed, and also the passages in the Thirty-nine Articles to which the incriminated writings are opposed; and that no vague or general charge can be sustained. It was also ruled that down to the very latest moment, if Mr. Heath had thought fit to retract the opinions declared to be erroneous and heterodox in his writings, he would have escaped all punishment. These points were of no advantage to a man constituted as Mr. Heath appears to have been; but they were and are of infinite moment to the future administration of justice to the clergy, for they established the distinction between a positive sentence of a Court of Justice, supported by precise allegations, and the loose expression of ecclesiastical censures, resting on assumptions, generalisation, or inquisitorial investigation.

The proceedings before the Privy Council in the recent prosecution of two of the writers in Essays and Reviews,' are so familiar to our readers and to the public that it is unnecessary to dwell upon them in this place. These appeals attracted an unusual degree of attention from the talent with which the inculpated clerks defended their opinions without impugning the Articles, and from the extravagant importance attached to those opinions by the extra-judicial sentence of their adversaries. But before the Privy Council these cases were decided

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