Page:The Green Bag (1889–1914), Volume 11.pdf/211

 188

might take cognizance. Under the Public Worship Act, passed in 1874, to " put down ritualism," it occupies a peculiar position. A judge (Lord Penzance) was appointed to exercise jurisdiction under the act. He was to be " Judge of the Provincial Courts of Canterbury and York," and on the retire ment of Sir Robert Phillimore from the offi cial principalship of Canterbury, he was to succeed to that office, and all proceedings taken before him in Canterbury were to be "deemed to be taken " in the court of arches. Lord Penzance did succeed Sir Robert Phillimore, and Archbishop Tait granted him a patent purporting to confirm him in the official principalship. But the patent was not in turn confirmed by the dean and chapter, and accordingly Lord Penzance's title has always been open to dispute. The ultimate court of ecclesias tical appeal is the judicial committee of the privy council which took over by act of parliament, in 1833, the jurisdiction of the high court of delegates. It adopts in eccle siastical causes, the principle that its own decisions are always liable to be revised, and, if need be, reversed, in the light of fresh historical investigation. Such are the English ecclesiastical courts as they stand. Wherein do they require re form? The answer is : at almost every point in their structure. The ritual prosecutions of twenty years ago, discredited Lord Pen zance's court. The result was a cessation of appeals to it. The consequence of that, in turn, was the growth of a body of consistorial law, characterised by utter want of uniformity and numerous mutual contradictions. It is not too much to say that the issue of an application for a faculty for chancel gates, or a rood screen, or altar lights, depends almost entirely on the diocesan court in which it is made. Again the chancellors have largely usurped the jurisdiction of the bishops in their own courts. This has given rise to grave difficulties in regard to the granting of licenses for the remarriage of di

vorced persons. The objections to the court of arches have been already indicated. There is room for the contention, that it is now a purely secular tribunal and its methods of procedure are quaint. In a recently reported appeal, Lord Penzance gave judg ment, through his surrogate, before he had heard a word of argument on one side or the other. The judicial committee lies open to the criticism of not being a spiritual court, and to the further disadvantage that only one judgment is delivered in causes that come before it. A striking illustration of this defect is afforded by what occurred in the case of Ridsdale v. Clifton. The point at issue was the legality of the eucharistic vestments, and notably the chasuble in the Anglican church. Under two earlier decisions of the committee, Westerton v. Liddell, and Martin v. Mackonochie, these vestments were lawful. Under the later case of Elphinstone v. Purchas, they were un lawful. There was an intensely strong feel ing in legal circles that the last-named decision was (as both it and the Ridsdale case are now pretty generally admitted to be) bad law, and consequently the issue of the Ridsdale case was awaited with much interest. The committee again decided against the vestments. But Chief Baron Kelly, who was one of the judges, not only dissented, but took occasion to publish, in unusually emphatic terms, the fact of his dissent. An order in council soon after wards reaffirmed the binding authority of the "ancient rule and practice " of the judicial committee against the publication of dis senting judgments, or any indication of how the voices of the judges went. But the episode is interesting as showing the incon venience to which the existing rule may give rise in hotly contested cases. The reforms now contemplated (on the lines of the report of 1883) are these. Any complaint, say as to ritual, is to be made to the bishop in the first instance, as under the Public Worship Regulation Act the bishop