it consists as the first, second, and third, &c. "counts" of that indictment, and I shall reserve the word "articles" to denote the thirty-nine articles of religion.

The first question which will naturally attract your lordship's attention; the first question which was considered on similar occasions, by your lordship in the case of Burder v. Heath, and by the Privy Council in the all-important case of the Bishop of Exeter v. Gorham, is this-What are the principles upon which the judge is to regulate his decision?

First then-In what capacity do you sit here? You are sitting here as judge and jury in a criminal case—as a judge administering a code of criminal law—as a jury, to deal with the evidence which is submitted to you. In the one capacity you are bound to construe strictly the letter of the law, and in favour of the defendant, if there is the possibility of a doubt. In the other capacity, you are bound to give the defendant the benefit of any doubt which may exist in your mind.

On the other hand, you are not sitting here as a divine. You are not to decide on the truth of Dr. Williams's opinions; you are to decide on this question only-Was he forbidden by law to maintain the opinions which he has maintained, under pain of being punished by deprivation of the living of Broad Chalke? That is the narrow issuenarrow in one sense, wide enough in another-to which you are confined.

This being so, what is the principle upon which you are to proceed? I lay down in the very first instance— because I propose to make it the basis and foundation of the whole of my case this broad principle, that your lordship is bound by the decision of the Privy Council in the case of the Bishop of Exeter v. Gorham. That principle-a principle which will, I think, be looked upon in

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future times as the Magna Charta of the clergy of the Church of England-is contained in these words:" If it were supposed that all points of doctrine were decided "by the Church of England, the law could not consider any point as left doubtful. The application of the law or "the doctrine of the Church of England to any theological question which arose must be the subject of decision, and "the decision would be governed by the construction of the "terrns in which the doctrine of the Church is expressed, "viz. the construction which, on the whole, would seem "most likely to be right."* I pause for a moment on that paragraph. It describes the ordinary principle upon which the courts of common law exercise functions committed to them by the Constitution. In questions of contract, and in questions of tort, there is no such thing as an open question. When a man comes before the court and says, "I have experienced such a wrong; I have "entered into such an agreement," it is not competent to a court of common law to say, "This is a matter which has never been decided before; it is a matter upon which we "have no authority; it is, therefore, a matter on which we decline to express any opinion." Your lordship knows that there are a class of cases known by the collective name of "cases of first impression," which are amongst the most important cases decided by the common law courts. As familiar instances, I may mention the great case of Ashby v. White,† in which it was decided, for the first time, that to refuse to take a man's vote was to inflict upon him a wrong for which damages could be recovered, and that upon the broad general principle that the law of England allows no wrong without a remedy. Another case of less importance, but still of some importance, and *Report of the Gorham Case, by Moore, p. 464. † 1 Smith's Leading Cases, p. 1.

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*

belonging to the same class, has been decided in modern times. I allude to the well-known case of Priestly v. Fowler, in which it was, for the first time, decided that if two persons were in the service of one master, and one suffered by the negligence of the other, the master was not liable to the sufferer. When that case came before the Court of Exchequer, they had to decide upon first principles. They had to say in substance-What, upon the whole, would the authors of the Common Law of England have thought this question if it had been brought under their notice? To come back to the words I have just read, they had to apply to the case, "that con"struction which, on the whole, would seem most likely to "be right."

Having illustrated that paragraph, I pass on to the next, which points out this vital distinction-that in the ecclesiastical courts a different principle prevails-that in them open questions are permitted; that many doctrinal questions have not been decided by the Church of England, and that upon the questions which have not been decided full and entire liberty is left to the clergy. The paragraph is as follows:-"But if the case be, as un“doubtedly it is, that in the Church of England many

points of theological doctrine have not been decided, "then the first and great question which arises in such "cases as the present is whether the disputed point is or "was meant to be settled at all, or whether it is left open "for each member of the Church to decide for himself, "according to his own conscientious opinions. If there "be any doctrine on which the articles are silent or "ambiguously expressed, so as to be capable of two meanings, we must suppose it was intended to leave that "doctrine to private judgment, unless the Rubrics and

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* 3 Mee and Wel. i.

"Formularies clearly and distinctly decide it. If they "do, we must conclude that the doctrine was decided as "the doctrine of the church; but, on the other hand, if "the expressions used in the Rubrics and Formularies "are ambiguous, it is not to be concluded that the church. "meant to establish indirectly, as a doctrine, that which "it did not establish directly as such by the Articles of "Faith, a code avowedly made" (I cannot press those words too strongly)" a code avowedly made for the avoiding of diversities of opinion, and for the establish"ment of consent touching true religion."

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That is the fundamental principle upon which I propose to argue this case-the principle of open questions; and I will dwell for a moment on the mode in which it is stated by the Privy Council. They decide this-If the Articles say a thing that is conclusive: if the Rubrics and Formularies say a thing that is conclusive also; but greater plainness is required of the Rubrics and Formularies than is required of the Articles. If there be any ambiguity in the Rubrics and Formularies (and the court will look more narrowly to the Rubrics and Formularies than to the Articles, to see if there be any ambiguity), it is not to be supposed that the church meant to establish indirectly, as a doctrine, that which it did not establish directly by the Articles of Faith.

Contrasting this principle with the indictment against Dr. Williams, I am irresistibly driven to the conclusion that the indictment is a skilful, an artful, and an insidious attempt to overthrow the fundamental doctrine of the Gorham case; for, my lord, of what does the indictment consist? It charges Dr. Williams with a variety of offences, in holding false doctrine; and it asserts, amongst other things, that it is contrary to the teaching of the church, as contained not only in various articles of reli

gion, but in a variety of passages of the Bible, which the church orders to be read upon certain days as gospels, as epistles, or as proper lessons.

The first point, then, to which I have to call your lordship's attention is this:-I request you to reform this indictment, even if you should not quash it altogether, by striking out every one of the references to anything except the Articles, the Rubrics, and the Formularies, and specially by striking out every single reference to every passage of Scripture whatever. This, I know, is a matter of pleading, but it is a matter of such vast importance that, impressed as I am with the vital importance of the case itself, with its vital importance to truth, and with its vital importance to the Church, I do conscientiously say that I am by no means sure that the question of pleading is not more important than the question of doctrine. My lord, observe what the result of this mode of, framing the indictment is: they say, wherever the Church requires a passage of Scripture to be read in church, it means to lay down a certain doctrine which must not be impugned under pain of deprivation; and this court is from time to time to declare what that doctrine is. Thus, for example, your lordship is reminded* that on All Saints' Day part of the seventh chapter of Revelation is read as the epistle for the day; and you are asked to say that that is an averment upon the part of the Church that the Book of Revelation is a part of canonical Scripture. Similarly, in another count, you are asked to infer from the fact that the first chapter of the Epistle to the Hebrews is read on Christmas Day, that the Church believes that the Bible contains a special revelation from God. I do not now dispute that this is the opinion of the Church, but you are asked to infer from the fact that Hebrews i. *See 10th count.