Art. 9.-EXCOMMUNICATION.

1. Banister and wife v. Thompson. Law Reports (Probate), 1908, p. 362.

2. The King v. Dibdin. Law Reports (Probate), 1910, p. 57, and Times,' June 21, 1912.

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THE case of Banister v. Thompson, which raised the issue whether a clergyman is entitled to refuse the Holy Communion to a man who has married his deceased wife's sister, has at last been brought to an end; or rather the attempt to reopen the decision of the case arrived at in the Court of Arches just four years ago has definitely failed. The English Church Union, which has made itself the real litigant, has appealed to one civil court after another, with monotonous ill-success, until at length the furthest possible limit has been reached. The Divisional Court, the Court of Appeal, and now the House of Lords, have successively been invited to issue a Prohibition to the Court of Arches, the effect of which would have been to annul the whole proceedings in that court. The only justifiable ground for prohibition, though by no means the only one urged, was that the Dean of the Arches had based his decision on a wrong interpretation of the Deceased Wife's Sister's Marriage Act, 1907. These tribunals, one and all, have come to the conclusion, and, with the exception of a single judge in the Divisional Court out of eleven Judges, Lords Justices and Law Lords, have come to it unanimously, that no mistake has been made, and that the Act has been correctly construed. The secular courts have therefore refused to prohibit the Court of Arches. A great deal of time-these abortive proceedings have lasted nearly four years-and a very large sum of money-the English Church Union appealed in 1910 for 1000l., in 1911 for 1500l., and in 1912 for 1000l. to defray the costs-have thus been somewhat fruitlessly expended. It will not be surprising if the faithful, as they make their offerings towards payment of the inevitable bill, think a little wistfully of former times when Prohibition was a word of happy omen in 'Catholic' circles, and provided the field for many a notable victory. The mere form of proceeding is the same, but the men behind and the results are very different. If this were all, the

public need be little concerned; but the fact is that very important issues, which Churchmen cannot afford to ignore, and which all this pathetic blundering has done a great deal to confuse, are involved in the Banister case.

It has been plain for many years past that divergence between Church and State in England is growing, and that the occasions of collision are not merely actual schemes for Disestablishment and Disendowment. A nearer and perhaps deeper peril lies in the possibility of such alterations in the law of the land as are so out of harmony with the teaching and beliefs of the Church of England as to make the present relations of the two impossible-impossible, that is, for a Church which believes in its divine origin and has a conscience, and for a State which refuses to see its laws flouted by the officers of an established Church. It is difficult to define the limits of this area of possible conflict, but there are some matters on the border-line between morals and mere legal regulation which clearly lie within it. Of these, marriage is, we may safely say, the most momentous. Who may and who may not marry; what (if any) ceremony or act is necessary to effect a marriage; and whether, when established, marriage is or is not essentially monogamous and indissoluble these are the main subdivisions of this great subject, and both the Church and the State have an intimate connexion with all of them. It is obvious that the State is deeply concerned in this, the most important of all social relations; and the Church has, as a matter of historical fact, controlled and administered marriage law not only in England but throughout Europe for a great part of the last nineteen centuries.

How far the Church of England is bound by fidelity to the Christian Faith and Revelation to claim a voice in the matter or, in other words, to have a marriage law of its own at all, is a difficult question. It may be argued that the Christian Church had marriage jurisdiction forced upon it, in the first instance, by the condition of society in the later Roman Empire; and that it corresponds to no essential part of the Church's duty, but properly belongs to civil government. It will hardly be claimed, even by the most rigid of ecclesiastical purists, that the judicial settlement of all marriage questions (e.g. suits for declaration of nullity of marriage) is an

inherent function of the Christian society; and that the transfer of matrimonial jurisdiction from ecclesiastical to civil courts in 1857 was therefore merely an invasion of the Church's exclusively spiritual domain. On the other hand, it cannot be denied that it was because some of the usages of marriage and divorce recognised by the State were, in the opinion of the early Church, entirely inconsistent with God's law' and subversive of the kind of life demanded of Christians, that the Church set up its own separate marriage law, to which it required its members to conform. Few, for instance, will deny that unions of near blood-relations are and must always be anti-Christian, no matter what the secular law for the time being may permit.

It is plain, then, that marriage cannot be treated as a subject altogether outside the province of religious interference; but to what extent it is inside is another matter, as to which history and tradition seem insufficient guides. The Church has often had to struggle for existence in an anti-Christian State, and in England it has long lived in a professedly Christian State; but what its attitude, especially in respect of control over the social relations of its members, ought to be in a frankly non-Christian State, such as England is becoming, is a problem which, perhaps because it is new, has not yet been fairly faced. When we speak of conflict between the law of the Church and that of the State, we ought to remember that the former is in some of its parts no more immutable than the latter. By the law of the Church we mean (1) the rules recognised by the Church as binding on its members by virtue of their membership; and (2) the teaching underlying those rules. According to the old definition of Canonists, it is composed (1) of Divine Law, which consists of the revelation of God's will in the Scriptures and in nature, and is unchangeable; and (2) of Human Law, which may be altered from time to time by the Church's own act. In Human Law are included all ordinances made and customs approved by the councils, synods and other organs of government of the Church.

But, while we must bear in mind the human side of Church law, its quality of change, and the possible necessity for change under the new conditions which

have developed in England, these considerations do not directly affect the actual situation which the recent Act legalising marriage with a deceased wife's sister has created for members of the Church of England. It ought to be regarded as axiomatic that the existing laws of the Church of England as a Christian society are binding upon, and, in proportion to their importance, will be respected by, all loyal members of that society, whatever possibility there may be of those laws being hereafter altered; and, further, that those laws, especially any which lay down rules of membership of the Christian society, cannot be altered by external authority, such as that of Parliament. If, therefore, marriage with a deceased wife's sister is held to be void by the Church of England, the recent Act, by causing a divergence between the laws of Church and those of State, would seem to have created just such an occasion of collision as we have described. Assuming this to be so-and a very large number of people, including nearly all the clergy, have no doubt of it-the vastly important question arises, What is the proper attitude of the Christian society towards members who, under statutory protection, break its rules in a gravely material respect? Ought they to be treated as excommunicated persons?

As

Excommunication, or exclusion from spiritual privileges and sacraments, is the natural and obvious weapon of defence which the Christian society possesses against defiant disobedience to its rules. It has used it in every age, but with greatly varying degrees of facility. When discipline was vigorous and toleration little esteemed, excommunications were common, far too common. discipline slackened and toleration became general, excommunications grew rarer until they fell into almost complete disuse. That this is so, is made obvious by the ignorance of Church order and rule, which those who are most bent on defending the Church's rights have shown in their treatment of the Banister case. In order to make the situation intelligible, it is desirable therefore to recall the position with regard to excommunication in the Church of England to-day.

The Christian Church has, from the time when it acquired a settled organisation, recognised three ways by which a Christian may be debarred from Holy

Communion. 1. A penitent who has put himself under the direction of a priest may, as part of the discipline to which he is subjected, be required not to communicate. This case is thus described in the Dean of the Arches' judgment.*

'But if the accused person admitted his wrongdoing, expressed sorrow and asked to be admitted to the discipline of repentance, he was dealt with as a penitent. The handling of a penitent apparently soon came to be a normal part of the pastoral duty (derived from the Bishop) of the priest having cure of souls in the place to which the penitent belonged. The priest had rules for his guidance, which, as time went on, became more elaborate. At first there was a public confession of wrongdoing and public penance in church. A series of penitential stations, or positions in church, occupied by penitents and indicating successive stages in the process of their reconciliation, was established. The process night take weeks or months or years, according to the nature of the offence and the view of the priest; but during the whole period, whether short or long, the penitent was in a state of separation; and it was only at the end of it that he was readmitted to communion. As age succeeded age, this discipline of the Christian Church slackened. Public confession and public penance were laid aside, except in rare cases of public crime. The reconciliation of the penitent became a matter between himself and his confessor. Private penance became general, and there arose the practice of redeeming and commuting penances by money payments, which at and for a long time before the Reformation had become a regulated and generally accepted system. But the condition precedent, which was essential to the infliction of penance, was still the submission of the penitent.'

This was, no doubt, the normal method in England before the Reformation; but, save for exceptional cases, it lies outside the present constitution of the Church of England. No one can read the various forms of the Reformed Liturgy, from the Order of Communion of 1548 to the present Prayer-Book of 1662, without observing a marked and progressive intention to throw responsibility on the individual, and to require him, after self-examination, to decide for himself whether he is fit to attend Holy Communion or not. If he cannot thus 'quiet his own

* Law Reports' (Probate), 1908, p. 380.