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Such is the judgment against which Mr. Cheyne appealed to the College of Bishops; and, according to the principles which govern the law of Appeal in this country, in causes civil and ecclesiastical, the Bishops had three, and only three, legal courses before them. They might dismiss the appeal, or they might sustain it, or they might modify the sentence of the inferior Court. They had not the power to add severity to the sentence appealed against, by altering its terms, or introducing new matter. But this is precisely what the College of Bishops did in Mr. Cheyne's case. The Bishop of S. Andrew's, speaking on behalf of the majority of the Court, said,
“ I would earnestly hope, therefore, that if the Court expresses its disapproval of the general tenour of these sermons, and at the same time points out the particular passages which appear to us most objectionable, as tending to subvert the teaching of the Church, from which alone he has derived all his authority to preach and to minister, the Appellant will not refuse to recall the passages more particularly objected to, and express his regret for those passages.”
Here we see, the Court of Appeal claims the power, not only of “expressing its disapproval of the general tenour” of Mr. Cheyne's Sermons,-a matter with which, as a Court of Appeal, they had nothing to do—but, further, of “pointing out particular passages” which were to be retracted and apologised for. In short, they claim the functions, not of a Court of Appeal at all, but of a Court of First Instance. They entirely overlook the fundamental principle that it is ultra vires of a Court of Appeal to “point out," for penal purposes, any “particular passages” other than those which formed the ground of Appeal. The question, then, is this. Did the “particular passages," pointed out by the Court of Appeal cover more than those pointed out by the Bishop of Aberdeen ? They did. The Bishop of Aberdeen acquitted Mr. Cheyne of the the Cross, because the Priest is the same in both, and the victim the same in both. .... On the Cross He offered a bloody Sacrifice through death, but He is now offering Himself an everliving Victim without shedding of blood : and so in the Eucharist, by the ministry of the Priest, He is offering Himself an unbloody Sacrifice, under the form of bread and wine. But in both cases the offering is the same, differing only in the manner of offering.” “We pray that all the whole Church' may receive through this Sacrifice the benefits of the LORD's Passion,-each, of course, according to his needs, and his capacity of receiving. ... Whence the Eu. charist is called a Sacrifice for the Living and the Dead.”
"b. We do not kneel to the outward visible signs in the Sacrament; we kneel to the LORD Himself, invisibly present. under the form of bread and wine;' though even to the outward things after consecration we give religious honour."
"c. It is not necessary, in order to obtain a participation in the benefits of the Sacrifice, that all who join in offering it should at the same time receive the Com. munion .... the only thing necessary to the completion of the Sacrifice is the Communion of the Priest, which is required to complete the idea of Sacrifice, as an act of Communion between God and Man.”
1 We believe the Court of Cassation in France has this power ; but we have the authority of an eminent lawyer for saying that it is altogether foreign to the spirit and letter of British law.
accusation in the Presentment, under head B.; the Court of Appeal reintroduced that accusation, and asked Mr: Cheyne to retract the doctrine therein impeached. The Finding of the Court of Appeal was as follows:
“At Edinburgh, the 4th day of November, 1858, the College of Bishops having resumed consideration of the Appeals, at the instance of the Rev. Patrick Cheyne, Find that the teaching of the Appellant complained of in the Presentment is erroneous, and more or less in contradiction to and subversive of the doctrines of the Church, as explained in the opinions of the majority of the Court now delivered. But considering that the Appellant did not take part in the discussion of the merits of the cause during its dependence before the Bishop of Aberdeen, and being desirous of still affording him an opportunity of retracting the said teaching, if so minded, after having heard the opinions now delivered, direct the Clerk to furnish him with a copy of that part of the opinion of the majority, in which the said teaching, so held to be erroneous, is specified, and in the mean time, and before further procedure, adjourn the Court to the 2nd day of December next.”
The College of Bishops, let us repeat, had no power whatever to adjudicate on any point beyond those pointed out by the Bishop of Aberdeen for retractation. Let us now then test the finding by this rule. “The teaching of the Appellant complained of in the Presentment is erroneous." But what had the Court of Appeal to do with “the teaching of the Appellant complained of in the Presentment," except in so far as that Presentment was sustained by the Bishop of Aberdeen ? Nothing whatever; but what of that? Bishop Wordsworth had enunciated a short time previously, with reference to another illegal act of the Episcopal College, the following extraordinary juridicial maxim :
“We doubt not that legal objections might be raised, perhaps even sustained, against the Bishops' Acts. But these Prelates had too high and holy a duty to bind themselves with such fetters; and so far from being rightly censurable, if they did exceed their vested powers, they may rather claim from the Church especial thanks."'l
This very novel theory of a judge's office—novel among civilised nations, at least, Bishop Wordsworth, and his colleagues under his influence, acted on in Mr. Cheyne's case. The following sentence in Mr. Cheyne's Sermons is characterised in the Presentment as “plainly subversive of the doctrine of the Reformed Anglican Church :"
“When I speak of the Real Presence, I mean, as the Church means, that, after consecration, whole CHRIST, God and Man, is really, truly, and substantially present in the Eucharist, under the form of bread and wine."
1 See Scott. Eccl. Journal for June, 1858.
The Bishop of Aberdeen “ dismissed the complaint ” of the Presenters on this point; and, therefore, this branch of the Presentment was not before the Court of Appeal in any sense. Bishop Wordsworth, however, thought, as he tells us," that Bishop Suther made a mistake, and so he sets himself to rectify the error in a very ingenious way. He first scolds Mr. Cheyne for not having defended himself before the Appeal Court on the very point on which he was acquitted by the inferior Court. Then, in the formal Finding, “the teaching of the Appellant complained of in the Presentment” is condemned, and he is asked to “retract the said teaching." There is no qualification of any sort. All “ the teaching complained of in the Presentment” is condemned in the lump. The object of this is clear; it enables Bishop Wordsworth to bring back surreptitiously that part of the Presentment which was actually dismissed in the inferior Court. Having got thus far, let us examine Bishop Wordsworth's next specimen of intellectual legerdemain. It would have been too glaring to ask Mr. Cheyne, point blank, to retract the passage regarding which the Bishop of Aberdeen acquitted him. At the same time Bishop Wordsworth is determined that Mr. Cheyne shall retract that passage ; so what does he do? He very quietly inserts the passage as a preamble to the three propositions which the Bishop of Aberdeen condemned, so that Mr. Cheyne's retractation might cover all. The paper con. taining “the particular passages,” which the Court of Appeal handed to Mr. Cheyne for retractation, and which is printed on the back of Bishop Wordsworth’s “Opinion,” actually contained the very passage which the Bishop of Aberdeen dismissed in the Diocesan Court, and which, therefore, was not before the Court of Appeal at all!
Again, the Presentment charged Mr. Cheyne's doctrine with being “plainly subversive of the doctrine of the Reformed Anglican Church in general, and of the Episcopal Church in Scotland in particular.” The Bishop of Aberdeen, on the other hand, decided that it was only “in direct contradiction to the doctrines founded on.” In other words, his sentence was not in terms of the Presentment, and it was therefore legally null and void. The Bishops who sat in the Court of Appeal saw this ; so they corrected the Bishop of Aberdeen's sentence, by re-inserting the terms of the Presentment, together with those of Bishop Suther's judgment. This was quite irregular, and ultra vires of the Court of Appeal.
Again, the Bishop of Aberdeen asked Mr. Cheyne simply to retract; the Court of Appeal demanded a retractation and an apology.
Once more, the Bishop of Aberdeen imposed no test on Mr. Cheyne; the Court of Appeal imposed Bishop Wordsworth’s “Opinion” as a test. Of this there can be no doubt. Let our
readers look at the Finding. It condemns Mr. Cheyne's teaching, not simpliciter, but in a certain sense—the sense “ explained in the opinions of the majority of the Court now delivered.” What does that mean? It means Bishop Wordsworth’s “Opinion;" for the two Bishops, who composed the majority with him, delivered no opinion of their own; they “concurred” in Bishop Wordsworth’s. Accordingly, the next sentence in the Finding describes it in the singular, as “ the opinion of the majority.” It cannot, therefore, be regarded as Bishop Wordsworth's private opinion; the Court adopted it formally as its own, and thereby committed the Scotch Church to its teaching, whatever that may be..
So far our argument is clear and conclusive. Bishop Wordsworth's “Opinion” is the eucharistic symbol of the Supreme Court, and, consequently, of the Church in Scotland, till she repudiates it. But was it imposed on Mr. Cheyne as a test ? Potentially, it is binding—as far as the College of Bishops can make it binding, on the whole Scotch Church,-on Mr. Cheyne, therefore, inclusively. But we will go further, and say that it was actually imposed on Mr. Cheyne as a test. The Bishops asked him to retract his doctrine; but they did not mean to make his mind a theological tabula rasa. No, they offered him Bishop Wordsworth's “Opinion,” to fill the vacuum which the retractation of his own doctrine would cause. They not only asked him to retract his doctrine, but to do so “as explained in the Opinion” of Bishop Wordsworth. They offer him “ an opportunity of retracting the said teaching, if so minded, after having heard the opinions (Bishop Wordsworth’s) now delivered ;” and “ direct the clerk to furnish him with a copy of that part of the opinion of the majority, (i. e., Bishop Wordsworth’s,) in which the said teaching, so held to be erroneous, is specified.”' Why, Bishop Wordsworth's “Opinion” is thrust into Mr. Cheyne's face at every turn. They first condemn his teaching “ as explained” in Bishop Wordsworth’s “ Opinion.” Then they ask him to retract, “ after having heard” Bishop Wordsworth’s « Opinion.” Then they deliberately call the three condemned propositions, plus Bishop Wordsworth’s interpolation, already mentioned, a “part” of Bishop Wordsworth’s - Opinion," thus identifying still more closely the retractation with the “Opinion.” And, finally, they repeat, still more emphatically, that Mr. Cheyne must retract his teaching in the sense in which it is “held to be erroneous" in Bishop Wordsworth's “ Opinion ;" for the adverb “s0,” we presume must be taken in connection with “opinion of the majority.” Add to this, that Mr. Cheyne, a year later, pressed the Court of Appeal on this very point, and its silence was a virtual acknowledgment that the interpretation, which Mr. Cheyne bad put on the force and scope of the November Finding, was correct. And, after all this, shall we be told seriously that Bishop Wordsworth’s “Opinion” was not formally the opinion
of the Court, nor made binding on Mr. Cheyne? With the Bishops' intentions we have nothing to do. It is a question, not of intention, but of fact and grammar. Whatever the Bishops intended, it is a simple matter of fact, that the 4th of November Finding did two things; it committed the Scotch Church generally to Bishop Wordsworth’s “ Opinion,” and it offered that “Opinion” as a test to Mr. Cheyne in particular.
It is, no doubt, satisfactory to see the “Opinion” now repudiated by some of the Scotch Bishops individually; but we must not forget that the Church in Scotland is formally committed to it so long as the November Finding remains among the acknowledged Acta of her highest Court of Appeal. The Church was committed to the “Opinion” by a formal act, and nothing but a formal act can rid her of it—the “Opinion” and the Finding are so interlaced, that they must stand or fall together.
And now we venture to suggest the following course to the Bishops—a course which would be at once dignified and just. The November Finding is illegal on the face of it. It is not an affirmation of the sentence appealed against, but a new sentence altogether, differing in four important points from the sentence of the lower Court, and each of these points being an addition to Mr. Cheyne's punishment. Let the Bishops then-as an act of grace, if they will—say, “We understand that this Finding is the cause of much misunderstanding and perplexity, and therefore, in the interest of peace, we declare that the Scottish Church is not committed to it.” By this, they would simply be declaring, in explicit words, what they have already declared implicitly in act. For, let it be remembered, at the meeting of the adjourned Court a month later, (Dec. 2, 1858), the Bishops then did what they ought legally to have done in November; they simply dismissed Mr. Cheyne's Appeal, and entirely ignored the November Finding. It thus, as the Guardian very justly says, “occupies an ambiguous position which makes it a dangerous weapon if unscrupulous hands ever came to handle it." Nor is its existence necessary to the consistency of the Bishops in any degree ; in getting rid of it, they will merely be getting rid of a troublesome informality, to which only two of them are formally committed, which even those two can have no reasonable motive for adhering to, and which is certainly the chief, if it is not the only, barrier to peace. It is quite evident that Mr. Cheyne cannot move a step till the 4th of November Finding is somehow disposed of. Men on both sides are now anxious to banish strife, and to be friends again. We hope most sincerely that such a consummation will not be frustrated by
i We do not forget that at a later stage of this unhappy controversy, the College of Bishops decided, by a majority, that a judge's sentence was to be interpreted by the intention of the judge, and not by the literal meaning of his words; and Mr. Cheyne was actually punished for not knowing that the Bishop of Aberdeert meant the very reverse of what he said !