FOOTNOTES.

“It has been asserted by the Privy Council that the baptismal and burial offices are parallel cases:—we hope that the child is regenerate: we hope the dead brother is to rise to eternal life?

“But are the cases parallel? Is it not a notorious fact, that at the Savoy Conference in consequence of the Puritan objections, the words ‘in sure and certain hope of resurrection to eternal life’ were altered into ‘in sure and certain hope of the’ (i.e. the general) ‘resurrection to eternal life.’ And on the other hand when the words ‘it hath pleased thee to regenerate this infant by thy Holy Spirit,’ were objected to by the same parties (on the ground that the ‘regeneration of every child that is baptised,’ is at least’ a ‘disputable point,’) no alteration was made. How came this to pass? Surely the Church of England wanted to show that her language with regard to the dead was only that of charitable hope; but that she held the doctrine of regeneration in baptism absolutely and without qualification.—Yours, faithfully,

“Solicitus.”

As I have said, the notion of the general resurrection being the object of the hope alluded to, appears never to have presented itself to the mind of the Court. If it did not; where was their ability? If it did; where their honesty; so entirely to suppress all mention of it, and force this service to one construction only, in order to open the door to many constructions in another?

“To know what the common law was before the making of a statute, whereby it may be seen whether the statute be introductory of a new law, or only affirmatory of the common law, is the very lock and key to open the windows of the statute. For it is not to be presumed that the Legislature intended to make any innovation upon the common law further than the case absolutely required; the law rather infers that the act did not intend to make any alteration other than what is specified, and beside what has been plainly pronounced: for if the Parliament had had that design, it is naturally said they would have expressed it.” [60a]

It appears to me that in some sense, i.e. in reference, at any rate, to posterior legislation, the pre-reformation doctrines may be called the common law of our Church; and if so, we shall readily see the analogy of the civil law, and the authoritative declaration of its rule of construction of statutes, is, that no alteration is made by subsequent enactments, but what is specified, or beside what is plainly pronounced;—that is to say, what is not “openly, plainly, and dogmatically” altered, remains as it was before. To the same purpose exactly Mr. Chambers adds another passage, stating again “the canon of construction appropriate to statutes,” and again quoting Mr. Dwarris:—

“Affirmative words do not take away the common law, former custom, or a former statute.” [60b]

And again, a little further on, citing further authorities:—

“When particular words are followed by general ones, the latter are to be held as applying to persons and things of the same kind only which precede,” [61a] so that “if a particular thing be given or limited in the preceding parts of a statute this shall not be altered by the subsequent general words of the same statute;” [61b] an observation surely of much weight to show how definitely any part of a statute must be examined, and how directly mentioned in order to its repeal, according to the usage of English law. Once more, to quote but one further passage to the same effect:—

“Unless the intention be apparent for that purpose, the general words of another and later statute shall not repeal the provisions of a former one.” [61c]

Such is the testimony from rules of English law to the principles I desire to maintain, that the pre-reformation dogmatic teaching remains to us, except where it has been “openly, plainly, and dogmatically” repealed.

I need hardly say, these extracts very inadequately represent the force of Mr. Chambers’s argument. A reference to the pamphlet itself will well repay the trouble.

I am persuaded no lawyer will contradict what I have here said, as to secular affairs, and I see no reason why the same measure should not be dealt forth in causes ecclesiastical and spiritual. I mean, that no lawyer will contradict the principle, that because a certain argument or line of defence has not been taken into consideration, or not admitted as conclusive upon the side on which it is advanced in any given instance, it should be looked upon as judicially condemned, or not be used again if occasion should arise. If even the reasons of a court of law on which it founds its sentence are really no formal part of the judgment, much less can the mere overlooking or ignoring a particular line of argument, disable or disfranchise that line of argument, so as to render it for ever unavailable.

“What law is that? ’Tis not the law of God, nor yet above it.”

“The Church of England so far from submitting either the rule, or her decisions according to the rule, to the judgment of her individual members, will not submit them even to the judgment of particular Churches, or to any tribunal less than that to which all particular churches are subject, that is, a general council, of which either the members shall truly represent the Church Catholic, or the decrees be universally received. * *

“We therefore no more submit the doctrinal decisions of the Church to the judgment of individual minds, than the canon of Scripture itself. We do acknowledge an authority higher than either the Church of England, or of Rome in particular. What hinders an appeal to that tribunal, Dr. Wiseman knows as well as we. But if such a council, truly general, freely assembled, should meet to-morrow, the rule of its decisions would be, ‘non sua posteris tradere, sed a majoribus accepta servare.’”—Pp. 25, 26, note.