ERRATA.

Page 24, line 7, for hsa; read has.

32,

25, for ἂνθπωπῶν—read ἂνθρωπῶν. 42, 10, for voluntarism; read voluntaryism. 3, for Babalonians; read Babylonians.

133,

The Church as Established in its relations

with Dissent.

CHAPTER I.

EXTANT THEORIES.

That it is the duty of the governing body to profess and maintain the true religion, is a proposition which may be supported by proofs the most various. Indeed the history of the controversy has actually elicited this variety of treatment.

"The judicious Hooker" has, as it will be remembered, employed a line of argument marked by the idiosyncrasies of his own splendid intellect; but which has perhaps lost something of its original force, in consequence of the changes which, since his day, have passed over English law and English society. In his "Ecclesiastical Polity" it is contended "that the same persons compose the church

B

and the commonwealth of England generally." "We hold," says Hooker, "that, seeing there is not any man of the Church of England but the same man is also a member of the commonwealth, nor any member of the commonwealth who is not also of the Church of England; therefore, as in a figure triangle, the base doth differ from the sides thereof, and yet one and the self same side is both a base and also a side- -a side simply: a base if it chance to be the bottom and underlie the rest; so, albeit, properties and actions of one do cause the name of a commonwealth; qualities and functions of another sort the name of a church, to be given to a multitude, yet one and the self same multitude may in such sort be both. Nay it is so with us, that no one pertaining to the one can be denied also to be of the other."

Hooker's fundamental position-and that upon which his entire theory is constructed, is that of a supposed identity of the church with the nation. Such a position, as need hardly be said, is by no means that which the exigencies of the controversy at present demand; nor that upon which any churchman, in the present day, is prepared for a moment to insist.

Taken from the point of view of the law, his theory held good both in logic and in fact, as it does in a very considerable degree even now. Every subject was at that time in the eye of the law a bona fide member of the established church, whatever his doctrinal and political antipathies. It was a legal fiction, it is true; but like

many other such fictions of the law, it had all the influence and importance of a fact. A fiction, when it is permitted to affect the interpretation of the laws, has a substantial existence.*

* Legal fictions are far from uncommon, and are thus defined by Jeremy Bentham :-" J'entends par fiction un fact notoirement faux, sur lequel on raisonne comme s'il était vrai.

a. Le célèbre Coceiji, rédacteur du Code Frédéric fournit,”—adds our author,—"un exemple de cette manière de raisonner au sujet de testamens......... C'est que l'héritier et le défunt ne sont qu'une même et seule personne, et par conséquent l'héritier doit continuer à jouir du droit de propriété du défunt.'—Code Frédéric, part. II., 1. 110, p. 156.

Le raison sérieuse, la raison judiciaire, c'est l'identité du vivant avec le mort.”—Traités de Législation Civile et Pénale, Ed. par M. Et. Dumont, Vol. I. p. 125, Paris, 1830.

b. The case of attainder furnishes a similar example. For not only is the attainted person subjected himself to forfeiture, but also his natural heir upon the ground of a fictitious hereditary taint.

c. That "the King can do no wrong"; that he "is immortal”; that he is parens patriæ; and that he is legally ubiquitous ;—are all fictions of the law of the utmost importance in practice.

d. By legal fiction, husband and wife are for many important purposes one person in law. It is only by fiction that they can be thus regarded; and yet important consequences follow upon it :

1. "By the common law, a man cannot in general grant anything to his wife, or enter into covenant with her; nor can any action be brought between husband and wife; for the grant, covenant, or suit, would suppose her separate existence."

2. "It is generally true that all compacts between them when single, are avoided by the inter-marriage."

3. Upon the same principle of the identity of person between husband and wife, they are not allowed on trials of any sort to be witnesses for and or against each other."-Blackstone's Commentaries on the Laws of England (Stephen's Edit.) Vol. II. pp. 296, 297, 484, and 543.

This last rule is, however, set aside in certain criminal cases.

From this point of view the argument of Hooker is irrefragable. And it is a question as to how far modern legislation has modified the bearing of the laws upon the case of nonconformity. Thus much is certain, that as long as the government makes provision-as by its connexion with the Church of England it does-for the spiritual wants of all its subjects, it virtually and theoretically ignores any other similar provision. By such act all the labours of Dissent are disallowed. So that even yet the theory of Hooker,—much as it may seem at variance with the actual religious distribution of the people, is, nevertheless, the only theory on the subject, which the spirit of the law and the constitution justifies. In extending toleration to nonconformists the law does not properly recognize them in that character; but rather as subjects desiring a larger measure of political freedom. The statutes which inflicted disabilities upon Roman Catholic and other dissidents,— inflicted such disqualifications upon them, not because they were dissenters, but because they were turbulent and disaffected; and the removal of such disabilities—the repeal of such statutes cannot, with any due regard to the spirit of the laws, be taken as any recognition, on the part of the state, of Dissent as such; but rather as an expression of its confidence in the present fitness of such classes of its subjects for the exercise of political functions and privile

ges.

But although the doctrine set forth in the Ecclesiastical Polity is not to be surrendered as obsolete and valueless, it is nevertheless in no sense necessary to the determination of the present enquiry.