THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
THE BISHOP OF LINCOLN'S CASE.
REPORT OF THE PROCEEDINGS
IN THE
COURT OF THE ARCHBISHOP OF CANTERBURY
OBJECTIONS TO THE JURISDICTION.
{REPRINTED FROM ''THE LAW REPORTS," WITH THE SAXGTWN OF THE INCORPORATED COUNCIL OF LAW REPORTING.)
WITH AN
APPENDIX
CONTAINING THE PLEADINGS,
AND A
SELECTION FROM THE AUTHORITIES CITED.
BY
E. S. ROSCOE,
I!AnUISTEK-AT-LAW.
LONDON :
WILLIAM CLOWES AND SONS, Limitep,
27, FLEET STEEET, E.G.
1880.
I, ON' DOM: l-UIMKH IIY WILLIAM CLOWES AND .'-ONS, Limited,
STAUFUIIU aTUEET AND CHARING CKUSS.
TABLE OF CONTENTS.
rAOR
Introduction .. .. .. .. .. .. ,, .. v
Prkfatoey Note .. .. .. .. .. .. .. vii
Eeport of Case as to the Jurisdiction of the Archbishop over a
Provincial Bishop .. .. .. .. .. .. .. 1
Eeport of Case as to Obligation of Bishop to obey Rubrics when
officiating as a Minister ., .. .. .. .. ..43
APPENDICES.
1. Judgment of Privy Council ., .. .. .. ..46
2, 3. Pleadings .. .. .. .. .. .. .. 4G
AUTHOEITIES CITED.
4. Recognition of the General Councils by the Council of
Hatfield .. .. ., .. .. .. .. 54
5. Recognition of the General Councils by Synods of Northern
AND Southern Provinces .. .. .. .. ..54
6. Eecognition of the General Councils by the Canons of
Aelfric .. .. .. .. .. .. .. .. 65
7. General Council of Constantinople .. .. .. ..55
8. General Council OF Chalcedon.. .. .. .. .. 50
9. Council of Antioch .. .. .. .. .. .. 5G
10. Apostolic Canons .. ,. .. .. .. .. .. 57
11. WiNFRiD, Bishop OF Lichfield .. ,. .. .. .. 57
12. Wilfrid, Bishop of York .. ,. .. .. .. 57
13. TuNBERHT, Bishop of Hexham ,. .. .. .. .. 58
14. WuLSTAN, Bishop OF Worcester.. .. .. ,. ..58
15. JocELiN, Bishop of Salisbury .. .. .. .. ..58
16. Godfrey, Bishop of St. Asaph .. .. .. .. ..59
17. Trial of Bishops .. .. .. .. .. .. .. 60
18. Extract from Lewis' Life of Peacock .. .. .. ..60
19. Cheney, Bishop of Gloucester .. .. .. .. ..61
20. Goodman, Bishop of Gloucester ., .. .. ..62
is2.i:>s^
IV
Tal'li vf ( '(-/</' )i(:i.
Ar; KNincRj — fi>«/inHt<I.
21. AWton, Bisiioi' ok Covksiuy and Lkiiiiei.I)
22. IlACKt.TT, lilSUOr OF l\nVN AMI CONNOK.,
23. lilSUlIAM's OriNION
24. IUx^kkk's Orixiox ,.
2o. TUIAL OK 13lSH0I*S ..
20. Dates of Proceedings ok Lucy r. AVatsox, Bishop ftr
David's .. 27. Taut I. — Eriscorus St. Davu' v. Lucy „ IL — Ll'cy r. Bisuor of St. David's
St.
G8 69
70
70
2G 72
77
INTRODUCTION.
The following pages contain a report reprinted from " The Law Reports," with the sanction of the Incorporated Council of Law Reporting, of the case of Bead v. The BisJwp of Lincoln, upon the point as to the jurisdiction of the Metropolitan over the Bishops of the province, and also upon that as to the duty of a Bishop to conform to the Rubrics when officiating as a minister at Divine service. There is also an appendix which contains the pleadings on which these two points were argued, and a selection from the very numerous and lengthy authorities referred to in the argu- ments. The judgment of the Archbishop of Canterbury is given verbatim, the arguments of counsel are in the form of a precis.
Each of the above questions is entirely distinct from any which may hereafter arise in the course of this litigation : the first is essentially historical in character, and so long as there exists an established Church, it must be of interest to every student of our constitutional history.
The object of the following pages is to furnish a convenient and permanent record of this noteworthy decision.
E. S. ROSCOE.
Temple,
Odolcr, 1889.
PREFATORY NOTE.
On June 2, 1888, a petition was presented to the Archbishop of Canterbury at Lambeth Palace, asking for a citation to be issued, calling on the Bishop of Lincoln to answer Articles alleging that he had offended against the law ecclesiastical by certain offences in regard to ritual.
On June 26 the Archbishop after consideration declined to issue the citation.
A petition on appeal from this refusal was then presented to the Privy Council, which was heard on July 20, and August 8, 1888 (1), the Bishop of Lincoln not appearing. The Privy Council allowed the appeal. (2)
On January 4, 1889, the citation was issued by the Archbishop of Canterbury. (3)
On February 12 the Bishop of Lincoln appeared, under protest, before the Archbishop at Lambeth, with whom were sitting as assessors the Bishops of London, Winchester, Oxfurd, and Salis- bury, and Sir J. P. Deane, Vicar-General.
The following statement was read by the Bishop of Lincoln : —
" My Lord Archbishop :
" I appear befoie your Grace in deference to the citation which I have received, and in accordance with my Oath of 'due rever- ence and obedience ' to your Grace and the See of Canterbury ;
(I) There were present the Lord (2) The proceedings are reported
Chancellor Lord Halsbury, and Lords L. R. 13 P. D. 221. The judgment
Herschell, Hobhouse, MacNaghten, is given in App. 1.
and Sir Barnes Peacock, and as (3) The substance of the citation
assessors the Bishops of London, was the same as the Articles, for which
Salisbury, Ely, Manchester, and see A[)p. 2. Sudor and Man.
( Mii )
Imt 1 iiinu'iir undor prutost, desiring', with all respect, to (|iic.stiun the juris(li»'tii>n which your (truce projxisps to exercise.
*• I have hccii suininonctl to answer certain c]iar<;es preferred ajiainst nie before your (irace or your (Jrace's \'icar-(«eiieral ; and if it should appear that such is the Canonical Court before which one of your Grace's suffragans ought to be tried for such alleged spiritual offences, and wherein such offences can be fully and freely ad juilii-ated Jijiou on their merits, I shall be ready and tiiankful t«.i answer for myself.
'* But your Grace will pardon me if I submit that, as an accused [Hjrson, and also in view of the grave issues involved in this case, and of their bearing on the whole Church of England, as well as upon the position of all your Grace's suifragans, I feel obliged, at the outset, to do what in me lies towards securing for myself, and therein for all members of the English Epis- copate, that form of ecclesiastical procedure by which your Graces metropolitical authority can be most fittingly and regu- larly exercised.
" There can be no doubt that in accordance with the practice of the Primitive Church, the most proper method for the trial of a bishop in such cases would be before the Metropolitan with the comprovincial bishops.
" It may also be held that a trial before the Archbishop as sole judge might impair the rightful position of your Grace's suffragans, both individually and in relation to the province.
" I would, therefore, humbly pray your Grace to allow me to be heartl by counsel on this point, whether your Grace's jurisdiction would not be more properly exercised, with regard to the matters charged against me, by your Grace as Metropolitan with the comprovincial bishops, such matters to be adjudicated upon on their merits by your Grace with the advice and consent of the bishops of the province, and whether, this being the case, I ought not to be dismissed from making any answer to the present citation.
"Having made this statement, I beg most respectfully to appoint my proctors, and leave all legal matters in their hands and those of my counsel."
( ix )
The extended protest, answer, and conclusion were, after some interlocutory proceedings, in due course filed. (1)
The question of jurisdiction was argued on March 12, 13, 14, 20, 21, 26, 27, and judgment was given on May 11. In the following pages the substance of this argument and the judg- ment of the Archbishop of Canterbury, as reported in the Law Eeports, 14 P. D., p. 88, is given.
Subsequently the Articles (2) were brought in, and also certain grounds of objection, which were as follows : —
" The grounds on which the proctors for the defendant will object to the admission of the Articles are the following : —
1. There is no such jurisdiction as alleged in the Articles, and especially in Article 16.
2. The matters charged, seeing that they are charged as being done by the defendant as bishop, are not offences against the laws, canons, and constitutions of this Church and realm and of the province of Canterbury."
A further question of law was thus raised as to whether the word minister in the Eubrics and Acts of Uniformity included a bishop, and was argued on July 23 and 24, 1889. The argument and judgment is given after that on the judicial jurisdiction of the Archbishop of Canterbury.
With any further proceedings in this litigation the present report is not concerned.
(1) See App. 3. (2) See App. 2.
[IN THE COURT OF THE ARCHBISHOP OF CANTERBURY. (1)1 March 12, 13,
14, 20, 21, 26,
READ V. BISHOP OF LINCOLN. 27;
May 11.
Ecclesiastical Law — Bishop — -Illegal Practices in Conduct of Divine Service —
Jurisdiction of Arclihisliop of Canterbury.
The Bishop of Lincoln was cited to appear before the Archbishop of Canter- bury to answer the charge of having been guilty of illegal practices in the conduct of divine service. The bishop appeared under protest denying that the archbishop had jurisdiction to try a bishop of the Province of Canterbury, and affirming that the proper tribunal was the archbishop and other bishops of the province assembled in Convocation or otherwise: —
Held, that the archbishop sitting alone or with assessors had jurisdiction to entertain the charge.
Objection to the jurisdiction. The promoters in the suit were E. Eead, W. Brown, T. F. Wilson, and J. Marshall. The respondent was the Lord Bishop of Lincoln.
By a citation dated January 4, 1889, the Bishop of Lincoln was summoned to appear before the Archbishop of Canterbury at Lambeth Palace for having committed several ecclesiastical offences, viz. (1) having used lighted caudles on the communion table, or on a ledge over it, for ceremonial purposes ; (2) for having used water and wine for the purpose of the Holy Sacrament and consecrated the same ; (3) for having stood with his back to the people while reading the Prayer of Consecration ; (4) for having permitted the hymn Agnus Dei to be sung ; (5) for having made the sign of the cross ; (G) fur having taken part in the ceremony of ablution, i.e., pouring wine and water into the })aten and chalice. These offences were alleged to have been committed on December 4, 1887, in the church of St.-Peter-at- Gowts ; (7), (8), (9), and (10) were offences of the same kind, alleged to have been committed on a different day in Lincoln Cathedral. This citation the Archbishop of Canterbury had previously refused to issue, not being satisfied that he had juris-
(1) The Vicar General of the Pro- Bi.iliops of London, Winchester, Ox- vincc of Canterbury (Sir J. P. Leane) ford, and Salisbury, as assessors, sat with the Archbishop and also the
B
( '^ )
1889 ilii'tu'u in the matter. On ai)peiil to tiio i*iivy C\)un('il IVoin tho
Rkao refusal, it was held that tho archbishop had jurisdiction. (1) Uiiaroi-ur *^" I'l'l'io;'!'} 1-. 1''*">'^I*, the r>ishoi» of Ijincoln appeared under LiMvLs. -protest at I.ainhcth I'alace before the Arclibisho[) ol' Canterbury, anil his assessors, anil prayed that he might bo heard by counsel iu supjuirt of his protest.
On February 10, the extension of the protest of the Bishop of Lincoln was brought iu. The grounds of the protest were that there was no jurisdiction to cite tho bishop before the archbishop, because the citation did not cite tho bishop to appear in any Court whereof the laws, canons, and constitutions, take cog- nizance ; second, because the bishop was not bound to appear before the archbishop sitting alone, or before the Yicar-General of the archbishoj) ; third, because the Bishop of Lincoln as a bishop of the Province of Canterbury ought not to be tried for the offences with which he was charged, except by the arch- bishop and the other bishops of the province assembled either in Convocation or otherwise'; and fourth, because the charges in the citation were not such as the bishop was bound to answer or be tried for by any Ecclesiastical Court.
On March 1, the answer of the promoters was brought in denying the averment of the extended protest.
On the same day the Vicar-General concluded the pro- ceedings.
]\larch 12. The arguments as to the jurisdiction of the arch- bishop were begun.
Sir W. Phillimore and Jeune, Q.C. {A. B. Kemj^e, with them), for the Bishop of Lincoln. There are three objections, raised by the protest, to the jurisdiction of the archbishop as sole judge ; first, that he cannot, sitting alone, try, condemn, or sentence a bishop of the province, because the proper tribunal consists of the bishops of the province together with the archbishop, assembled in synod, that is summoned by writ from the Crown to sit in convocation. Secondly, a bishop is not bound by the rubrics of the Prayer Book, so far as they refer to priests and ministers. (2) The Bishop
(1) Ex parte Read, 13 P. D. 221.
(2) As to this point, see p. 12, note (1).
( 3 )
of Lincoln was therefore at liberty to depart from those rubrics, and the citation discloses no ecclesiastical offence, inasmuch as it refers only to acts in respect of which the rubrics are binding on ministers and priests. Thirdly, assuming that the Bishop of Lincoln is not bound by these rubrics, proceedings in respect of the acts charged against him cannot be brought in an Ecclesi- astical Court. For they are offences, if offences at all, created by the Acts of Uniformity, and cognizable only by the temporal Courts.
As to the first head of argument. A preliminary point in respect of this head is that the authority of the archbishop before the Keformation, as legate of the pope, must be distinguished from his authority as metropolitan. His jurisdiction as metro- politan must be ascertained by reference to the law of the Church of England, which has been defined as follows : " The law of the Church of England and its history are to be deduced from the ancient general canon law — from the particular constitutions made in this country to regulate the English Church — from our own canons, from the rubric, and from any Acts of Parliament that may have been passed on the subject ; and the whole may be illustrated also by the writings of eminent persons." (1)
See also Evans v. Ascuiihe (2), per Dodderidge, J. A further authority is the case of Beg. v. Millis (3), where dicta to the same effect are to be found.
As regards the canon law. The canons of the first four general councils support the first ground on which the protest is based. They form part of the ecclesiastical law of England, because they have been accepted {a) by English synods, (h) by Parliament, (c) by the Courts. Only such of the general canons as have been accepted in this country are authoritative. The first authority for the statement that these canons have been accepted by English synods is the recognition of the general councils by the council of Hatfield, a.d. 680 (4), the second their recognition by synods of the northern and southern provinces,
1889
Kead
V.
Bishop of Lincoln.
Argument.
(1) Per Sir J. Nicholl, Kemp v. Wiclc'g, 3 Pbill. 276.
(2) Palm. 457.
(3) 10 Clark & Finnelly, 534, at
pp. 678, 680, 745.
(4) Iladdan and Stubbs, Councils and Ecclesiastical Documents, vol. iii. p. 142. App. 4.
li 2
( -t )
IUad
BWHOP OF
A.n. 787 {I), the tliirtl, thoir roco^uitioii by the ciiiions of .l^ll'ric in A n. l>70. (2) TIjo autliorities for tho stiiteincnt that they hiivo been reoopniscd by rarliaimnt arr '2") lien. 8, e. xix. s. 7; 1 Eliz. o. 1, s. ."Hi.
Tho authority for tho statcnient that thcso canons have been rocoiinisoil by the Courts is the case of Rer/. v. Arclihishop of Canterhunj, in which CVtleriiljjjo, J., says: " Thocaseon the j)art of the applicants commenced \vitii evidence oflered even from the npt)stolic ages of the Church. I am content to start from the "•cneral councils. I presume the authority of these councils, on ft matter of Church government iu England before the Eeforma- tion, will not be questioned. Even as to matters of doctrine, their authority is expressly recognised by the legislature, after the Reformation, in the Statute 1 Eliz. c. 1, s. 36." (3)
The canons relied on as shewing that the archbishop alone has not jurisdiction to try a provincial bishop, but that the proper tribunal is the synod are Canon G of the General Council of Constantinople (4), Canons 1 and 9 of the General Council of Chalcedon (5), Canons 9, 12, 13, 14 and 15 of the Council of Antioch (6), and Canons 27 and 66 of the Apostolic Canons. (7)
The cases of Win/rid, Bishop of Lichfield (a.d. 673) (8), and Wilfrid, Bishop of Yorh (a.d. 678) (9), which have been confused by Lord Holt, are authorities in favour of the present contention, as each prelate was removed by the synod and not by Archbishop Theodore. Then follows the case of Tunherht, Bishop of Hex- ham (a.d. 684). (10) Even William the Conqueror when he tried to depose Wuhtan, Bishop of Worcester (11), summoned a synod
(1) Uaddan and Stubbs, Councils pp. 20, 33, 4th ed. App. 10.
and Ecclesiastical Documents, vol. iii. pp. 448, 4.')0; App. :'..
(2) Wilkins' Concilia, vol. i. p. 254 ; Hook's Lives of the Archbishops of Canterbury, vol. i. p. 441. App. 6.
(.3) 11 Q. B. Rep. 483.
(4) Johnson's Vade Mecum, part ii. p. 129, 4th ed. App. 7.
(.0) .Johnson's Vade Mecum, part ii. p. 130, 4th ed. App. 8.
(6) Johnson's Vade Mecum, part ii. pp. 91, 95, 96, 97, 4th ed. App. 9.
(7) Johnson's Vade Mecum, part ii.
(8) Anglo-Saxon Chronicle (RuU's Ed.) vol. ii. p. 29. App. 11. Bede'sEcc. Hi.st. bk. 4, ch. vi. (Bohn's Ed. p. 18.S).
(9) EddiusVitaS.Wilfridi, cap.lv.- Ivi. in Gale Scriptores xv. vol. i. p. 83. App. 12.
(10) Florentius Wignrnensis (ed. Thorpe, 848), p. 38. App. 13.
(11) Malhew Paris, Chronica Majora (Boll's ed.) vol. ii. p. 40. App. 14. Ilistoria Anglorum (Arches ed.) vol. i. p. 53.
( 5 )
for the purpose. In the case of Jocelin, Bishop of Salisbury (I), in 1166, the bishops protested against Becket's action in suspend- ing him without their authority, and in that of Godfrey, Bishop of St. Asaph (2), in 1175, the archbishop acted with the autho- rity of the bishops in synod. The case of Nicholas, Bishop of Llandaff (d), in 1177, has been relied on by a writer, the Arch- bishop of Spalatro, as shewing that the archbishop had the power of trying and deposing a bishop. But that instance is not in point. There was there litigation between the Abbot of Malmes- bury and the Bishop of Salisbury. The Bishop of Llandaff was not a party to the proceedings, and was suspended for not obey- ing an inhibition or prohibition — in fact, for contempt of Court. There is also the opinion of the Bishop of Winchester at the Council of Oxford. (4) Another authority in 1344 is the state- ment in a petition of bishops to the king that the pope alone could judge one of them. (5)
In 1359 there was the case of the Coadjutor Bishop of Here- ford,(Q) who was cited by the archbishop to appear before Convoca- tion for neglect of his duties. In 1457 came the important case of Peacoch, Bishop of Chichester, (7), but this was a proceeding against the books rather than the writer of them, and throughout the proceedings there was no sign of the archbishop having jurisdiction alone ; he formed a part of the council.
Next in order follows the case of Cheney, Bishop of Glouces- ter (8), in 1571 ; the proceedings in it are those of Convocation.
1889
Kead
V,
Bishop op
Lincoln.
Argument.
(1) Materials for Hist, of Becket (EoU's ed.) vol. v. pp. 403, 406, 407, 421. App. 15.
(2) Haddan and Stubbs' Councils and Ecclesiastical Documents, vol. i. p. 377 ; Wilkins' Concilia, vol. i. p. 479, n. App. 16.
(3) Haddan and Stubbs' Councils and Ecclesiastical Documents, vol. i. p. 385.
(4) Malmesbury Historia Novella, lib. Ji. 21 ; ed. Hardy, 1840. Ai)p. 17.
(5) Eutuli Parliamentorum, vol. ii. p. 151; Gibson's Codex Ecclesiaslicus, vol. i. ch. vii. p. 129.
(G) Wilkins' Concilia, vol. iii. p. 45.
(7; Lewis' Life of Peacock, ed. 1820. App. 18. Hook's Lives of the Arch- bishops of Canterbury, vol. v. p. 293; Eegistrum Abbati Johannis Whet- hamstede (i. 279 et seq. Iloll's Series); Wilkins' Concilia, vol. iii. p. ;'i76 ; Babington's Preface to Pea- cock's Repressor; Loci e Libro Veri- tatum, Passages Selected from Gas- coigne's Theological Diet. (Liber Ve- ritatum) by J. E. T. Rogers, Oxford, 1881, pp. 208 et seq.
{Sj Strype's Parker, Vdl. ii. p. 52; For form of excommunication, Strype's Parker, vol. iii. p. 182. App. 19.
( ^ )
1SS9 Then follows the cnso of Gooihuan, Bishop of GJouccsfey (1), in Hkap 1<»10, who wns on the jioint of being (le]trive(l by the archbishop *■• , and bishops in synod wlun ho altered his mind and escaped. In ljsa»u\. 108-4 there is the case of Wooil, liishoj) of Lichfield, who was A irutufnu snspended by the itflicial principal of the Conrt of Arches ; this was a civil snit by the execntors of his predecessor for dilapida- tions, which was referred to the arbitration of Bishops of London and reterboron<:i;h, and there was also a criminal snit which was likewise referred, and an award was made against the bishop and also a sentence of deprivation by the arbitrators, which was con- lirmcd oflicially (2) — it is no anthority for or against the Bishop of Lincoln, the proceedings were altogether irregular. In 1686 it was attempted to suspend Bislwp Compton of London through the agency of Lords Commissioners, by virtue of King James' prerogative, for not having himself suspended a priest who had preached a seditions sermon, (3)
In 1672 occurred the Irish case oi Hachet, Bishop of Down and Connor (4), who was deprived by a species of commission con- sisting of the Bishops of Meath, Dromore, and Derry ; this case does not shew any exercise of jurisdiction by the Metropolitan alone.
Next, as to the authorities to be found in the writings of autho- ritative and eminent writers. The writings of M. A. De Dominis, Archbishop of Spalatro, were relied on by Lord Holt in the Bishop of St. David's Case for the proposition that an archbishop has the same authority over a suffragan bishop as the bishop over one of his inferior clergy. (.5) But this writer is not a sound authority: there is no inconvenience in assembling synods as he asserts, there is no positive law giving sole jurisdiction to the archbishop, and there are no precedents to this effect. The instance which the Archbishop of Spalatro relies on in s. 15,
(1) Gibson's Synodus Anglicana (3) State Trials, vol. xi. p. 1123, (Oxfonl ed ) pp. I'Jl, 195. App. 20. et seq.
Fuller'fi Church Hist. Bk. x. cent. 17. (4) Mant's History of the Church
(2) Canhvell'sDocumentary Annals, of Ireland, vol. ii. p. 41. App. 22.
p. 3.52. An original extract from the (5) L)e I'lepublica Ecclesiastica., Bk.
registry of the Arches Court of Can- iii. ch. 7, ss. 1, 2, 9, 12, 15, 16, 17, 18,
terbury was also read by counsel. 19, 20. App. 21.
( 7 )
namely, the action of Pope Gregory, is not to the point, that of St. Basil has not been given accurately by him, and is no autho- rity for his statement (1), nor is that of Florentius (2), Bishop of Epidaurus. The book was written to assert the authority of the Metropolitan against the Pope, and with a partisan object. The whole argument in it is based on the idea that the power of synods passed into the hands of the Metropolitans. This may have been so in other countries where synods fell into disuse, but in this country Convocation did not lose its powers, but always exercised them.
The following eminent writers are in favour of the theory on which the protest is based in this case. Of these, the first is Bingham (3), then follows Hooker (4), then Barrow (5), then Eoger Twisden. (6) Johnson says of the synod, "this assembly has power to correct and depose bishops " (7) ; Archbishop Parker (8) is also an authority to the same effect.
The following authorities are of a negative character : that is, the powers of the archbishop are fully enumerated, but that of deposing a bishop is not mentioned, and therefore it may be assumed that it did not exist. They are Strype — Life of Archbishop Parker (9), Mocket (10) (1617), Cosin (11) (1634), Zouch (12), Clarke (13) (1596), and Godolphin (14) (1687). Noticeable also is the letter of Archbishop Sheldon in answer to the Archbishop of Gnesen in Poland. (15) [All the above authorities were examined and referred to in detail.]
1889
Ebad
V.
Bishop of Lincoln.
Argument.
(1) 53rd Ep. of St. Basil.
(2) St. Gregory's Epistles, Bk. iii. Ep. 8.
(3) Antiquities of the Christian Church, bk. ii. ch. 16, ss. 14, 16. App. 23.
(4) Ecclesiastical Polity, bk. vii. ch. 16, s. 7. App. 24.
(5) Treatise of Pope's Supremacy, vol. vii. p. 494 (ed. 1830).
(6) An historical vindication of the Church of England in point of schism as it stands sei)arated from Home, and as reformed primo Elizabeth, p. 25.
(7) Johnson's VadeMccum(Gthed.) ch. 16, p. 154.
(8) De Antiquitate Britannicaj Ec- clesise et Privilegiis Ecclesise Cantua- rensis, p. 37.
(9) Vol. iii. p. 177.
(10) Politia Ecclesiaj Anglicante, ch. iv. p. 29 (3rd ed.).
(11) Ecclesiaj Anglican^ Politia, ch. iii.
(12) Descriptio Juris et Judicia Ec- clcsiastica Anglicana, pt. iii. s. 3.
(13) Praxis in Curiis Ecclesiasticis, T. 4, T. 5 (2nd ed.).
(14) An Abridgment of Ecclesiasti- cal LavvF, ch. ii. p. 18.
(15) Wilkius' Concilia, vol. iv. p. 597.
( 8 )
|j{>«) Tlio cannns of 1<I'>I arr aninuativt' t'\ idciiff ; they j^ivo powor
Ijgj^j, t»» the arrhbisliop tt) susptMul ii ItisliDj) iVoin ordaining priests for
. '• ii limited time, ami even in the case of suspemliu}' a bishop from
iiNv«.u\. one o( his functions only, tliey require the archbishop to bo
Ar^unirtiL ai^sisteil bv another bisliop. It wouhl be vi-ry aiioniah»us that
the ardibislioj) ahmo shouM be able to deprive a bishoji, but
not suspeml him from one of his functions. This shews, there-
ft)re. that the power of deprivation •generally could not exist in
an archbishop. ( 1 )
There are also some autliorities to be mentioned, which are supposed to be against the Bishop of Lincoln, but are in reality not so. The iirst is Lyndwood (2), in which the wonl " pr;ela- torum " means not bishops but abbots ; compare on this point the Constitution of l^>ishop Poore of Salisbury and Bishop Richard of Durham (3), llolle's Abridgement (-1), Viner's Abridge- ment (5), Speed (6), and Eadmer. (7) A passage in the Year Books (8) which has been relied on as supporting the arch- bishop's jurisdiction to deprive a bishop for dilapidations is no more than the argument at the'bar of counsel; the so-called Bishoj) of Salish>n-i/s Case (9) is no authority, for on investiga- tion it has been found that no Bishop of Salisbury was de- prived or tried. Neither is there any authority for Sir Simon Degge's (10) statement to the same effect. ^Moreover, it appears by the note to the statement that the deprivation is to be judicio episcoporum. Of the best writers after the Bishoj) of St. David's Case, it is suflicient to say that their view of the law is based on that case and adds no weight to it. These writers are Onghton (11), Ayliffe (12). and Gibson. (13) [The above authorities were also examined at length.]
(1) Canon xxxiii., Canon xxxv., eil. p. 44G, s. 13
Canon xxxvi., Wilkius' Concilia, (7) Ilistoria Novorum (Roll's ed.)
vol. iv. p. 353. pp. 141, 142.
(2) Provinciale, App. p. 30, citing (8) Y. B. 2 Hen. 4, 3 b. Cunstitutiun of ArchbisLop Edmund (9) Godbolt's liep. 259.
(12;i4;. App. 2.5. riO) The Parson's Counsellor, pt. i.
(3^ Sjxjlman'H Concilia, vol. ii. )>[>. ch. viii.
145, 170. ()1) Prolegomena, p. 16, s. 11.
(4) 'Evcsquc (G.) Investiture T. (12) Parergon, p. 92 (2nd ed.).
(5) Evt'.xjiue (G ) Investiture I. (13) Codex, vol. ii. p. 133, and p. (*'>) History ot Great B;itain, 2nd lOOfj, n.
( 9 )
The case of Lucy v. Watson, Bishop of St. David's (1) is re<^arded as the main authority in favour of the jurisdiction of the arch- bishop. But in none of its various stages, nor in any of the courts before which it went, is it any authority. When Bishop Watson appeared under protest it was only to guard his privileges as a peer. The ground of his objection to the archbishop's juris- diction on February 20, 1699, was that the offences with which he was charged were cognigable by the temporal and not the Ecclesiastical Courts. His appeal to the delegates on February 16, 1700, was dismissed because he took objection to the arch- bishop's jurisdiction at too late a period. The first prohibition was applied for and refused — (a) on the ground that the form of execution was bad ; (b) that the matters were proper for the decision of a temporal court. In the House of Lords, on Decem- ber 6, 1699, the bishop's application to resume his privilege was negatived by a party vote, and there is nothing to shew that the question of the jurisdiction of the archbishop was involved in the decision. [The learned counsel then criticised the argu- ments of the counsel before the House of Lords.] The second prohibition was applied for generally, but the decision of the Court is no authority on the present point, because it was not an attempt on the part of the bishop to prove that the arch- bishop could not pass a sentence of admonition but that he could not deprive. Further, Lord Holt refused the prohibition on the
1889
Read
V.
Bishop op Lincoln.
Argument.
(1) For the proceediDgs in the Bishop of St. David's Case, in chronolo- gical order, see A pp. 26 ; for judgment of Lord Holt, App. 27. The proceed- ings before the delegates are noted in the Delegates' Processes, vols, ccxxvii. pt. i. p. 1 ; p. 208, d. ; p. 831, d., and in the Delegates' Assignation Book. The case in the Queen's Bench on the first proceedings for a prohibition is re- ported 1 Ld. Eaym. 447 ; 12 Modern, 237 ; and Garth. 484 ; and the pro- ceedings for the second prohibition, 1 Ld. Eaym. 539 ; those on which the writ excommunicato capiendo was quashed, 2 Ld. liaym. 817. The pro- ceedings for intrusion in the Court of
Exchequer were cited from Queen's Remembrancer, Memoranda EoU, Mich. 13 Will. III. mcix. App. 27.
The proceedings in the House of Lords are reported in 14 State Trials, p. 447, et seq.; Dr. Body's MSS. Lambeth Palace Library, p. 3 ; Journals of the House of Lords, March 7, 18, 20, 1695-6; Nov. 29, Dec. 4, 6, 1699; March 1, 2, 5, 8, 1699-1700 ; Dec. 14, 22, 1704; Jan. 12, 17, 21,25, 1704, 1705. The case is also noted in Luttrell's Diary, vols, iii., iv. and v., and in Hurnet's History of His Own Time, vol. iv. pp. 17, 21, 25. (Claren- don Press Ed. 1823.)
( 10 )
1889 jjrouiul tlmt tho not tiikinjj; h\ tho arclibisliop of tliinl persons
KtAii to liis assistani'O was not •jjronnd lor a prohibition, and also
Itisiioror booauso it was without precetlont to j^rant a prohibition to an
Liscvi-x. Eoolesiastii'al Court if tho ])roi'00(lin<^s therein were contrary to
ArjwuenL ^\^^ oiuous. Tlio appeal to tho House of Lords, on I\Iar(di 2,
1700, was rejected, because error cannot be brought on refusal of
a proliibition, and it did not involve tho present point: and
the writ excommunicato capiendo was quashed on a point of
pleading.
[They also argued that in the time of Lord Holt the granting of a writ of prohibition was discretionary: St. Johns College, Cambridge v. Toddingtoii (clerk) (1), Mayor of London v. Cox. (2)]
The Bishop of St. AsapKs Case (3) in 1701 is no authority ; he confessed his oflfence and was suspended. The case of the Bishop of Clogher (4) is at most of no greater weight than that of the Bishop of St. David's, on which it was partly based. But it is opposed in some ways to that case ; the tribunal was com- posed of the Archbishop of Armagh and four bishops of the province, of the remaining three one was the incriminated party, one was dying, and one was abroad. [The learned counsel read the sentence signed by the archbishop.] Dr. Stephens, a writer with exceptional knowledge of Irish ecclesiastical law, asserts that all the bishops were summoned to remove any doubt as to the proper tribunal. But the case of the Bishop of St. David's, assuming that it decides what the promoters of this suit assert that it does, has been overruled by the Privy Council. In Long V. Bishop of Capjetown (5) it was held that Mr. Long had bound himself to obey the authority of his bishop, the extent of that authority being determined by the laws of the Church of Eng- land, so far as they were applicable to the colonies. In the later case, Ex parte Bishop of Natal (6), this same consensual jurisdic-
(1) 1 Burr. 159. (4) Philliraore, Ecc. Law, p. 91;
(2) Law Rep. 2 E. & I. 239. Stephen's Laws of the Clergy, i. 167 ;
(3) Tracts of the Archbishops and Burns' Ecc. Law (edited by Phillimore) Bishops (Lambeth Library Collection), 1. p. 415 (R. R.).
p. 113, K. 17 ; State Trials, vol. xiv. (5)1 Moo. P. C. (N.S.) 411;
p. 468; Burnet's History of His Own Broderick & Freemantle, p. 204. Times (Ed. 1823), iv. p. 450. (0) 3 Moo. P. C. (N.S.) 115.
( 11 )
tion, but as between a bishop and his metropolitan, was relied on, but the Privy Council held that it is not incident to the office of suffragan and metropolitan in English law that the latter can deprive a bishop : Bisliop of Natal v. Gladstone (1) is to the same effect. If the archbishop has the power contended for by the promoters, then sede vacante, it is in the Dean and Chapter of Canterbury : Case of the Dean and Chai^ter of York (2), Parham v. Templar. (3) Having, it is submitted, shewn that the arch- bishop has not the jurisdiction contended for by the promoters in this suit, it can be proved positively that Convocation is a judicial tribunal with jurisdiction to try bishops and ministers. The authorities for the contention are. Lord Coke (4); Sawtres Case (1400) (5); Herbert v. Seygno (1402) (6); Rector of Wor- thams Case (1416) (7); Biehard Walker's Case (1419) (8); Tailour's Case (1421) (9) ; BiiSselVs Case (1424) (10) ; Mungyn's Case (1428) (11); Hugh Latimer s Case (1530) (12); Bishop Cheney'' s Case (13); Bishop Goodman s Case (14); Whistons Case (1710) (15). [The learned counsel read the several cases at length with comments.]
The Statute of Citations (23 Hen. 8, c. 9), is not an authority in favour of the archbishop's jurisdiction. It deals not with Con- vocation but with the Courts of the archbishops, bishops, and other ordinaries : it is intended by it to deal only with spiritual offences, as the refusal of a bishop to institute to a living, to grant a marriage licence, and to prevent the citation of persons out of their own diocese, as for example, the Bishop of London from citing any one within the " peculiar " of St. Paul's who
1889
Read
V.
Bishop of
Lincoln.
Argument.
(1^ Law Eep. 3 Eq. 1.
(2) 2 Q. B. 1 ; Kothery's Return, p. 29.
(3) 3 Phill. 223.
(4) Institutes, 4th pt. ch. 74, Of Ecclesiastical Courts.
(5) Wilkins' Concilia, iii. p. 255 ; Fitzherbert Natura Brevium, ii. p. 269.
(6) Wilkins' Concilia, iii. p. 270.
(7) Wilkins' Concilia, iii. p. 377.
(8) Wilkins' Concilia, iii. p. 393.
(9) Wilkins' Concilia, iii. p. 404, (10) Wilkins' Concilia, iii. p. 428.
(11) Wilkins' Concilia, iii. p. 501.
(12) Wilkins' Concilia, iii. p. 725.
(13) Strype's Parker, ii, p. 52; iii. p. 182.
(14) Gibson's Synodus Anglicana (Oxford Ed.), pp. 191, 195 ; Fuller's Church Hist. bk. xi, cent. 17.
(15) Broderick & Freemantle, p. 320 ; Card well's Synodalia, ii. p. 753; 15 State Trials, p. 714. The above cases are also collected : Report of the Eccle- siastical Courts Commission, 1881, App. 2, p, 54.
( \'2 )
l^**"'' wouM bo stibjoct only to the jiirisdictittii ol' tlie I )oiin ami Kkau Chrtnter. ( 1 ) liisiu.r or '^"' ^^- /^'"v//, (^.C, ami Tn'tttram, Q.C. (T)a)icJiirerts, witli tliem), LiNimv f^,j. ^jj^^ j)ronu>ters. The airhbishop, sitting with assessors, has ^rsuuuui. jurisiliotion to try this case. The va.se oi Lncij v. The Bishoj) of St. DiwiiVs (2) is a liiial ami a hinding decision to this eflect : the point as to the jurisiliction ol" the arohbishop was taken, not only in the Court of Queen's Dench, but also before the delegates on the hearing of the appeal ou February 10, 1700; for the latter tribunal decided that it was " unanimously of oi)inion tliat tlie archbishop had and that this Court hath, jaiisdictiou in this cause." In the Court of Queen's Bench the personal jurisdiction of the archbishop was directly in issue on the first and on the second occasion. On the second occasion it was decided that the archbishop had jurisdiction to deprive, which necessarily included the minor proposition that he could try. The same questicm of jurisdiction was directly decided in the House of Lords with the assistance of ten judges ; the same points which have been raised in the present case were therefore raised in that of Lucjj v. Bishop of St. DavitVs. (2) The same question of the archbishop's jurisdiction was raised and decided before the Court of Ex- chequer in the hearing of two informations of intrusion against Bishop Watson and his wife : Q. R JMemoranda Roll. [They referred to passages beginning at p. 80, line 28; p. 81, line 19 ; p. 82, line 5 ; p. 83, line 2 ; p. 84, line 18 ; p. 85, line -1 ; p. 8G, line 31 ; p. SG, line 48 ; p. 87, line 27 ; p. 89, line 32. (3jJ The argument that Bishop Watson failed to take the objection to the jurisdiction in time has no weight, because an objection which goes to the root of the jurisdiction may be taken at any time in prohibition : Roherts v. Eumlij (4), Maijor of London v. Cox (5). The same principle applies to objections in the Ecclesiastical Courts, as an objection to the jurisdiction could be taken before
(1) It was arranged, with the con- p. 8, note (11); and for dates, see sent of the Court, that the arguments App. 26; for judgments, App. 27.
on the two second objections should (3) A translation prepared for this
stand over for the decision on the case was referred to. App. 27.
first objection. (4) 3 Mee. & W. p. VIO
(2) For references, <^--c., see ante, (5; Law Rep. 2 H. L. 239.
( 13 )
the delegates : Taylor v. Mozley (1) Consett's Practice of the Ecclesiastical Courts, p. 66; Lucy v. Bisliop of St. David's (2ud appeal to delegates).
The case of Ex parte Bishop of Natal (2) does not affect the jurisdiction of the Archbishop of Canterbury, it only decides that as the Queen has no power by letters patent to erect a Court having coercive jurisdiction in a colony, therefore the taking of the oath of canonical obedience by a coloni^il bishop did not give his metropolitan coercive jurisdiction. As to the canons of the Church — the disciplinary canons of the first four councils have never been received as part of English law, the canons which have been received affect matters of doctrine ; and it can only be by shewing usage that authority can attach to them : Wilson v. MoMath (3), Bex v. ArchhisJwp of Cauterhury. (4) Canon 12 of the Council of Antioch (5) is incompatible with the Queen's supremacy and so cannot be part of English law.
[They referred to the recognition of the Canons of the Council of Hatfield (6), by the Synods of the Northern and Southern. Provinces (7), and by the Cautms of ^Ifric (8), and argued that they were only recognitions of doctrine.]
As to authorities cited on behalf of the Bishop of Lincoln, the opinion of the Bishop of Winchester at the Council of Oxford (9), is of no value. The complaint of the Bishops to Pope Alex- ander (10) proves nothing: if anything, it is in favour of the promoter's contention ; nor is the letter of Archbishop Shel- don (11) an authority. Tlie case of the coadjutor Bishop of Hereford (1359) (12), is an instance in favour of the present promoters, he was, it is true, summoned to appear before tlie archbishop '' in concilio," but the archbishop was and describes
1889
Read
V.
Bishop op Lincoln.
Argument.
(1) 1 Curteis Rep. 470, p. 484. (2; 3 Moo. P. C. (N.S.) 115. (3) 3 Phill. 79. . (4) 11 Q. B. Rep. 649.
(5) Johnson's Vade Mecuin, part ii. p. 95, 4th ed.
(6) Haddan & Stubbs" Councils and Ecclesiastical Documents, iii. p. 142. App. 4,
(7) Haddan & Stubbs' Councils and Ecclesiastical Documents, iii. pp. 448,
450. App. 5,
(8) Wilkins' Concilia, vol. i. p. 254; Hook's Lives of the Archbishops of Canterbury, p. 444.
('.)) Malmesbury Historla Novella Lib. ii. s. 21 (Ed. Hardy, 1810;. App. 17.
(10) Materials for Hist, of Bccket, vol. V. pp. 40G, 407, 421.
(11) Wilkins' Concilia, vol. iv. p. 597.
(12) Wilkins' Concilia, vol. iii. p. 45.
( H )
1889
Ueau
r.
Bisiior or
Ljncvln.
Ar^uiueiit.
himself as " judox :" ho at tlio time merely happened to bo sitting in the synotl. In the pn)ree(lin;j;s in tlic earlier case (in 1177) of the Abbott of ^[aIlncsbu)'lf, the l)ishop o( UandalT was snspended by the authority of the archbishop himself, " uos uutem suspendi- mus" arc the witnls in the record. (1) It is contended that in all the cases referred to the archbisht)p exercised a personal jurisdic- tion, sometimes havinp; to sit in Convocation, sometimes with assessors : the case of Bishop Peacock (2) is a direct instance of the latter fact and a precedent for the present proceedings, for the assessors were the Bishops of Winchester, Lincoln, and Rochester. The cases (3) relied on from Saidres Case to Goodmans Case shew no fixed practice and prove, if they prove anything, that an archbishop cannot try a priest except in Convocation. The cases of Biithoj) Cheney, (4) and Bishop Goodman, (5), do not disclose strictly ecclesiastical offences at all, they shew arbitrary usurpations of power.
The opinion of the judges in Whiston's Case (6) was not a judicial opinion or a judicial precedent, but no result was at- tained because, as Bishop Burnet points out, it was not known how the Court was to be constituted. Lyndwood's Provinciale is an authority, for in his comments on this Constitution, he says in explanation of it, " Proelatorum, sc. episcoporum, qui, etc," (7) Lvndwood was the most eminent of English canonists, and his authority is accordingly great. The Canons of 1604 (8) are in favour of the promoters, for the jurisdiction of the archbishop is assumed, and in some instances they create new ecclesiastical offences, in others they regulate the jurisdiction. The Statute of Citations (23 Hen. 8, c. 9), recognises the jurisdiction of the arch- bishop, and of the possibility of a bishop being cited before him. Again, in 25 Hen. 8, c. 19, abolishing an appeal to the jjope
(1) Iladdan & Stubbs' Councils and Ecclesiastical Documents, vol. i. p. 385.
(2) Lewis' Life of Peacock (Ed. 1820), pp. 143-157. App. 18.
(3) See ante, p. 11, for cases and references.
(4) Strype's Parker, vol. ii. p. 52 ; vol iii. p. 182. App. 19.
(5) Gibson's Synodus Anglicana
(Oxford ed.), pp. 191, 195; Fuller's Church History, Bk. xi. cent. 17. App. 20.
(6; 15 State Trials, p. 714, and see ante, p. 11, note (15).
(7) See ante, p. 8, note (2) ; Spelman's Concilia, pp. 145, 170.
(8) Wilkius' Concilia, vol. iv. p. 353.
( 15 )
and substituting an appeal to the king in Council from the 1889 archbishop, there is no mention of an appeal from Convocation, Read thus shewing that jurisdiction is in the archbishop alone. Bishop op
Sir W. PhiUimore, in reply. The decision on the information Lincoln. of intrusion is that of Lord Keeper Wright only, thoug^h Holt The Archbishop
^ ^ . . o^ Canttrbury.
and Trevor, C.JJ., were called in : the only point relied on by the Bishop of St. David's was that he was a Peer of Parliament, this report has therefore no weight as an authority.
Cur. adv. vult.
1889. May 1 1. The Archbishop of Canterbury. Before I proceed to deliver judgment on the protest, I desire to express my very great obligations to the learned and right reverend prelates who are with me, for their goodness in hearing the argu- ments along with me, and giving me the benefit of their advice on various points. It will be remembered that the appointment of their Lordships as assessors was for the hearing of the case on its merits. The appearance under protest gave rise to a question totally distinct (except on one reserved point) from those affect- ing the merits, and their Lordships could not be called upon to discharge the ofBce of assessorship, properly speaking, in con- sidering the validity of jurisdiction which potentially affects themselves and their acts. It will therefore be understood that the judgment which I shall presently deliver on that part of the protest which concerns the jurisdiction only, is not to be looked upon as other than my own judgment.
The Court has now to give its decision on the protest raised on behalf of the Lord Bishop of Lincoln against the jurisdiction of the Court in this matter.
First, it will be necessary to consider the case stated in the protest ; secondly, the authorities and the arguments against and in support of the archiepiscopal jurisdiction ; thirdly, to state the conclusion arrived at, and declare the course to be taken upon the decision.
L The protest says : — 1. That the citation issued does not cite the Lord Bishop of Lincoln to appear in any Court or in any proceedings whereof the laws, canons, and constitutions ecclesi- astical of this Church and realm and of the Province of Can-
( H5 ) \»9 terbury take ciignizanoc. 2. That by the said hiws, cauoiis, and
Ri-j^u constitutions, the Lor<l Bishop of Lincoln is not bound and
Bisiioror ^'"p^'t nut to iippoar before or be tried by the archbishop sitting
ijsixiLs. alone, or to appear before or to be tried by tlie Vicar-General of
•nx- Arxht. siiop the archbishop ; and that the fact that the arclibishop pro-
wlCoimcrbury. * .....
poses to sit with assessors does not confer a jurisdiction which he would not otherwise have. 3. That by the said laws, canons and constitutions, the Lord Bishop of Lincoln as a bishop of the Province of Canterbury ought not to be tried for the ofiences (if any) with which he is charged in these proceedings, save by the Archbishop of Canterbury together with the other bishops of the ])rovin('e, his coniprovincials, assembled either in the Convoca- tion of the said province or otherwise. 4. That the charges set forth in the citation are not such charges as by the said laws, canons, and constitutions, the said Lord Bishop of Lincoln is bound, or ought to be tried for before or by any Court of eccle- siastical jurisdiction. The consideration of this fourth point was deferred, without prejudice to his Lordship's position, until the case (in the event of the protest being overruled) should come to be heard on its merits. By the first three articles of tlie protest, two questions are raised : (1) Has the archbishop, eitlier sitting alone or with assessors in the xVrchiepiscopal Court of his province, jurisdiction? (2) Has the archbishop jurisdiction only when sitting together with the other bishops of the province assembled in convocation " or otherwise " ? The word " otherwise " is not explained. 15ut the second question (2) would not require con- sideration if the first (1) were decided in tiie affirmative. If it were proved that the archbishop has jurisdiction when sitting in Convocation, this would not in itself prove that he has jurisdic- tion only when so sitting. It is obvious that such jurisiliction might exist concurrently with a jurisdiction exercised by the archbishop alone or with assessors.
11. The arguments in support of the protest and the authorities cited have extended over a wide range. The records of early synods and councils have been much relied upon. As documents ancient, and solemnly accepted, these records deserve all the scholarship and attention with which they have been handled by the learned counsel. Not for this immediate pjurpose only, but
( 17 ) for ourselves always and our beliefs, they have the highest value 1889
and weight. It is desirable, therefore, to ascertain, if possible, Read exactly what kind and amount of support the contention receives bishot of from their authority. General impressions are easily created even Lincoln. by raising a contention on such srrounds, and then conscientious Ti,e Archbishop
'' , D ' of Canterbury.
difficulties gather round those impressions. It is therefore quite worth while to examine in some detail the canons cited, but only for the purpose for which they are cited. The argument which was advanced is very clear and connected. The first canon of the Council of Chalcedon received the canons of "all the holy synods" held before it. The Engli.sh Church receives the Council of Chalcedon as one of the four general councils. All the canons, therefore, of this and of the earlier synods referred to have become and, if the law has not been altered, are still part of the law of the realm. It is agreed, at the same time, that if the directions contained in ancient canons are ever so clear and definite, they still cannot determine any question of canonical or other law in England unless they have been received and put in use. There is, however, no doubt that in matters of faith and doctrine the decrees of the first four general councils have been so received, as declared in the statute law (25 Hen. 8, c. 13, s. 37 ; 1 Eliz. c. 1, s. 36). Canons also therein made, when strictly applicable, and when not " contrariant to the law of the Church and realm," have authority.
We proceed then to consider how far this authority extends in the present cas'e. Extracts in support of the view that the canons determine the method of procedure in trial of bishops were put in by the learned counsel for the Bishop of Lincoln. Among these are two of the canons called apostolic, and other canons of the Councils of Constantinople, Antioch, and Chalce- don. We will take them in order, and consider both their contents and their reception. The canons called apostolic pro- bably belong, in the opinion of the most learned critics, for the most part to a period in which the Crown or Government had entered into no relations with the Church. For this reason, as well as on account of other social changes, many of the most important of these canons nowhere now survive in use, and could nowhere be acted upon in the Catholic Church as it is. Of
c
( IS )
1889 canon 27 (i>ther\viso X] or .■>">), tho part wliirli lui8 seemed to Kkm. touch this question is (as oiteil by the learned counsel) — "The „ *" bishops of every province ou;rht to own him who is chief amoni'
LixLVLN. tliom, ami esteem him as their head, and to do nothinpj extra- Th# Archt.uh p ordiiuirv i-rrtptTTor) without liis consent; but every one those things only which concern his own parish {TrapoiKia) and the country subject to it. Nor let him (that is chief bishop) do any- thing (extraordinary) without the consent of all." (1) But (not to discuss the exactness of this translation) if anywhere the chief bishop has a court and jurisdiction, that which he does regularly within this, in the exercise of that jurisdiction, is not extra- onlinary. The canon assumes that he has some authority more than diocesan ; and to allege the canon generally against a jurisdiction not otherwise proved to be outside this is to beg the question. Again canon 6G (otherwise 73 or 74) directs that the bishops shall summon before themselves any credibly accused bishop, and try to secure his appearing, and shall sentence him. But even if this canon were held now to empower bishops to cite one of their own number before them, it still could have no force to override a jurisdiction otherwise shown to reside in their metropolitan.
Next, as to the reception of these canons in our Church. It was argued that the apostolic canons were held to be included among those adopted by the first canon of the general Council of Chalcedon, and therefore received by the Church of England, and so part of our own law. It is, however, matter of history ([ refer to Hefele, " Hist, of Councils," App. vol. i.) that the apostolic canons were adopted by the Synod in Trullo, a.d. 792, under the patriarch John Scholasicus, into the code of the Greek Church. That would not have been necessary if they had been held to have been already adopted by the Council of Chalcedon in A.D. 341. After the Council in Trullo they remained binding on the Greek Church only, until, after having been added to the list of apocryphal books condemned by papal authority in the sixth century (inserted probably by Hormisdas in the Gelasian Decree, Labbe, t. v. c. 31)0), they regained credit, and the first fiitv of them were in the eleventh century added to the orthodox (1) Johnson, ii. 19.
( 19 ) rules (regulis orthodoxis) of the Roman Church. (Hefele, 1889
OF
App. vol. i.). It is therefore difficult to see how these two canons, Read unless they have had some definite reception here, which is not Bishop shewn, are not still formally part of "that foreign canon law " as Lincoln. to which Sir W. Phillimore rightly, "as an English lawyer, The Archbishop denied that it could be put into effect." They do not, as we have seen, apply to this case even as to their contents. And if they did, still (precious as they are as illustrations of early Christian practice) they are not part of the discipline of the English Church. We come next to the sixth canon of Constan- tinople, The reception of this canon is even more questionable. Critics agree that it was not passed at all in the second general council, the Great Council of Constantinople of the year 381, but at the synod which was held there a year later. Four canons only were passed at the council. (Hefele, B. vii. s. 98 ; Beveridge, Ballerini, etc., App. Hef.) The so-called fifth and sixth were not read apparently at Chalcedon, they are not alluded to by the Greek historians of the council, and were not included in any of the four early Latin versions of its canons, and as late as the year 865, Pope Nicolas the Great writes of this sixth canon to the Emperor Michael at Constantinople, as being " not found among us (in the West), though asserted to be kept among you (in the East)." (Hefele, 1. c. and sub can. vi. ; Jaffe Eegesta P.P.R., sub anno ; Nic. I. Ep. 8 ad Michaelem Imp. Proposueram, etc. Labbe, Venet. 1729, v. 9, c. 1321 E.) It was not passed, then, in the Second General Council, there is no evidence that it was sanctioned in the third, and it was not in the code at Rome, nearly two centuries after it has been argued that it was received at Hatfield, and became binding to this day as the law of the English Church. But what is its purport ? It excludes heretics, schismatics, and excommunicate persons from bringing eccle- siastical suits against bishops. It excludes ecclesiastical suits against bishops from being instituted in the temporal courts ; and from being instituted in general councils (or great synods) except on appeal from the provincial synods which ought to receive and hear such causes. If, then, this canon had been received in England it might probably have been the earliest authority for such jurisdiction in the provincial synod as may
c 2
( 20 ) 1889 jHJSsibly exist in it from some source; although that reception
Read Could uot have excluded concurrent developments which a more
Bisuor or t^fr^ni^^^^^ period was sure to produce in the modes of jurisdiction.
Lu\tx)LN. 13ut even that probability is extinguished by the evidence that
Tbf ArvhM^i.pp it was not known in the West until long after the Council of
ulCAiitrrbury. ^ _ "
llattield. Wo come, thirdly, to the canons adduced from the ISynod of Antioch, which, although it was in reality only an Oriental synod, w ithout any representation of the Western Church, has acquired large authority, apparently, as Hefele thinks, through the goodness of its enactments. Of the ninth canon we need not speak ; its point has been touched under the Apostolic Canon 27 (33 or 35), of which it is an expansion — unless that is an abridgment of this. Canons 12 (not 11), 14, 15, deal with cases of bishops who have been tried or deposed by synods. They do not order that bishops should be tried only by synods, but they speak of this as the obvious mode of procedure at that time — which of course it was. But the 13th canon was quoted by Sir W. Phillimore as if it did order that mode distinctly. " All is null," he read from Johnson, " that is done by bishops coming without invitation " (i.e., intruding foreign bishops), " and they are to be deposed by a sacred synod." The original will bear no such interpretation. It is " Kadrjpriixevov evTevOev ijBr] inro rf]<; ayLa<i avvuZov." That nearly answers in form to the form of the phrase " ipso facto excommunicated, and not restored until," etc., in our own canons of 1604; and "the Holy Synod" is that then sitting (compare in Canon 14, " eho^e t^ ay la avvohw^). So the latest historian of the councils takes it (Hefele). So the early Latin translators : Dionysius Exiguus, " Ex hoc jam damnatus a sancto concilio " (Labbe, t. ii. c. 601, Ven.), and Isidorus Mercator, " tanquam depositus a sancta synodo et propter hujus modi prae- sumptionem jam prsedamnatus " (Labbe, t. ii. c. 609). All men were to regard the intruding bishop as ipso facto deposed by his own act. This was the only sense in which the canon could have been accepted or known in the West, and there is no direction at all for the trial of a bishop by a synod. On the contrary, the 11th canon (which was not quoted) gives a distinct indication, at least in certain cases, of another mode of trial. It provides for a bishop, if necessity arose, transferring his cause directly to the
( 21 ) judgment of the Crown (the emperor) — not limiting the kind of 1889
cause to civil causes — by permission and with commendatory read letters from his metropolitan or comprovincials. Lastly, we come I3li,J^^■,p q^ to the General Council of Chalcedon, a.d. 451. I do not under- Li^ouln. stand how the ninth canon can be alleged in support of the con- TUe Archbisbop
o 1 tr ^, Canterbury.
tention raised. It is a purely clerical canon, concerned only with disputes and complaints arising among clergy. It places the civil affairs of the clergy, as well as ecclesiastical matters, under the control of the bishops. The highest judicial authority therein named for the greatest causes is the Exarch of the " diocese," as superior metropolitan, or the " Throne " (Patriarch) of Constan- tinople. (Hefele, B. xi. s. 200, pp. 107-8, Goschler.) It seems needless to say that such a canon has never been received here. But indeed all the canons of Chalcedon, including the first, were applicable only to the Greek Churches. The Western represen- tatives had departed from the council as soon as questions of faith were over, and long before the canons of discipline were passed. These last were all proposed and passed together in the fifteenth session, and it is held that only the first six sessions, those which dealt with matters of faith, had an oecumenical character. To sum up the result of this closer examination of the antient canons alleged in support of the protest, it amounts to this : The trial of bishops by synods is not enacted in them, though this is implied in the English version which was cited of one of the canons of Antioch. Such trial is treated as a usual and obvious function of synods. But deposition in other form, and trial in other form, and before the metropolitan or the patriarch is already recognised. The conclusion which the Court must draw is that it cannot satisfy itself from the evidence alleged that the authority of early Church councils establishes that the trial of a bishop ought to rest with a synod of bishops only. It is not necessary to repeat what has been observed as to the absence or slightness of the evidence for the reception in the Western Church of the particular canons alleged. The learned counsel argued that all were covered by the first canon of Chal- cedon, and although that might be true for the Greek Church, yet the disciplinary canons of that council have never been conceived to have coqumenical authority. I have thought it
( 1^2 )
ISK) important to outer miiiutt.'ly into this j)iirt of tho arpjumont Ukad becrtuso, when it lias been ehihorately nuiinlaine<l that the Bisjioror I^riniitive councils allowed connnund a mode ol" trial iut-onsistcnt LtxixtLN. ^vitli that in use and now proceeding, even if the jurisdiction of ^cimcrbu'*''' ^^^^ t'owrt be established, u certain prejudice is evoked, which, under present circumstances, it is right to dispel. The Court itself, owing to the character of tho protest, has been placed on its defence, as it were, in a singular manner, which would not Lave been the case had these pleadings been advanced else- where. It will be understood that nothing here said impugns the authority of the first four General Councils — " tho first perfection," as Hooker calls them, " of so gracious a thing." But their work was twofold, and it is necessary to observe the distinction between the two parts. Their symbols or creeds, their articles of faith, and definitions of doctrine are our rule, as a faithful expression of the sense of Holy Scripture on the great verities. Thus, in the case referred to by Sir Walter Phillimore of Kemp V. Wickes (1), the authority assigned to the four councils seems limited to matters of faith and doctrine. But the canons of order and discipline passed in those same councils and at less important synods as to matters of ecclesiastical procedure and legal practice are on another footing. The creeds and sacred definitions deal with things eternal. The canons and tho dis- cipline deal with things of spiritual concernment, but in temporal regions and for temporary uses. The canons themselves take into account the conditions of their own times and countries. So must the ecclesiastical procedure of every age and nation. The procedure and practice of Courts must of necessity vary with the constitution of a country, and the institutions, organ- izations, and usages of communities, both ecclesiastical and civil. These have been in perpetual movement and life, and those canons as they stand do not now answer to the actual practice of any Christian Church. That is no disparagement of their excellence. They do not claim to bind a scheme of judica- ture on the Church at large or the Church of ages. They will not bear the strain which this contention puts on them. But whatever system of procedure appears in those canons, it has
(1) 3 PbiU. 276.
( 23 ) been argued that the canons form part of the law of the land, 1889
inasmuch as they have been accepted in terms by synods of the Kead English Church. Reference was made to the Council of Hatfield, bish'op of the Synods of the Northern and Southern Provinces in 787, and Lincoln. to the canons of .^Ifric. (1) 1. The Council of Hatfield, a.d. The Archbishop
of Canterbury.
680. The conclusions of the Council of Hatfield (whatever be its authority) had reference, so far as we can ascertain, to nothing but matters of faith and doctrine, unless there was some re- arrangement of Euglish dioceses. It was called by the arch- bishop " in order " (as Dr. Bright accurately says) " to certify the pope as to the orthodoxy of the Church under his rule." (2) Along with other dogmatic declarations it " enforced," he says, " the theology of the five CEcumenical Councils which had then been holden." Its members describe themselves as " we who with Theodore have expounded the Catholic faith." (3) Phrases describing as the one object of their assembly the affirmation of " the right and orthodox faith," " the divinely inspired doctrine," abound in their synodal letter and in Bede's narrative. It is said that Agatho had proposed that it should also examine " de eccle- siasticis statutis " (p. 133), but there is not one word as to the reception of any disciplinary canons, or discipline at all ; and this is the more remarkable if there were any theories as to the trial of bishops, because a commissary from the pope attended the council, and at this very moment one of themselves, the great Wilfrid, was at Rome comj)lainiDg that he had been improperly deprived. The learned counsel next cited the Synods of the North and South, or, as we might call them, the Double Synod of Finchale and Chelsea held in 787 a.d. under the papal legates. (4) These deal with Church order very closely — regulating monasteries, judicial proceedings, marriage, churches, services, &c. They order that any bishop in any way concerned in the death of a king shall be deposed and degraded. But they do not touch the process. They receive the "synodal edicts of the six universal councils (the sixth having now been held), together with the decrees of the Roman pontiffs." We have
(1) Iladdan & Stubbs, iii. pp. 135, (3) Haddan&Stubbs,vol. iii. p.l41. 153. {i) lliddan & Stubbs, vol. iii. p.
(2) Early Eng. Ch. Hist., p. 317. 447.
( ^-1 )
1W9 alreudy examined the origiiuil bearing upon the present question
lUuu of the canons of the Four Councils which we receive, and the
BisiKU' or ^^^^ synods neither add new force to them, nor interpret them
LiNcvLK. j^ interfering with that spiritual jurisdiction already exercised
The Arv-i.i.»awp jjj England. It has been already observed that some of those
canons were at this date not received in the West. The other
quoted example of synods of the English Church "having so
accepted in terms " those canons, that they now *' form part of
the law of the land," was the canons of -ZElfric, a.d. 970. (1) I
sujipose the contention was serious. But in fact the Canons of
iElfric represent no synod or legislative authority. They are a
bishop's charge. A charge written for the use of the Bishop of
Dorchester, by -^Ifric, his " humilis frater." And there is no
more to say about them. There is, therefore, no evidence that
the early English synods either formally received or enjoined
any special form of procedure in the trial of bishops.
If we examine the early English illustrative instances they bear not only the same negative witness as the documents, but witness which contradicts the contention. The first alleged was that of Winfred of Lichfield. (2) The Anglo-Saxon Chronicle was quoted to prove that he was deprived by a synod, contrary to the nearly contemporary statement of Bede (Bede was twenty years old when Theodore died), that he was deprived by the Arch- bishop Theodore (Bede, H. E., 1. iv. c. 6). If the passage had been genuine the chronicle itself belongs to two centuries after the event. But the passage is no part of the original Chronicle. The translation may take no notice of the fact, but the critical edition of the original shews the passage to be a late interpolation — mixed with a spurious charter and probably of the twelfth century. In the second instance, that of Wilfrid of Yorke, we have, against all conjectures about synodical action, Wilfrid's own written petition to the pope, given in his own words by his friend and biographer. Wilfrid says that he had been deprived (privatum) by Theodore (of whom he speaks with great venera- tion), "absque consensu cujuslibet episcopi." It was urged that Wilfrid was " given his place in a synod assembled in Eome,"
(1) Wilkins' Concilia, vol. i. p. 250; (2) Rolls' Edition, vol. i. p. 53;
Johnson's English Canons, pt. i. p. 382. vol. ii. p. 20.
( 25 ) and that, " before he had been ultimately restored he was (thus) 1889
recognised by the Pope as a lawful bishop," that is, that Theo- read dore's deprivation of him was not recognised. But the facts are bishoV op these. Besides the synod in which his appeal was heard, there Lincoln. were two synods at Rome while Wilfrid was there (1): the one The Arcbwshop
•^ . . , \ y ' of Canterbury.
in which Wilfrid sate as a bishop was after his restoration ; in the synod which was held while he was still under the archi- episcopal sentence he was not present, although its special business was the state of the Church of England, without reference to his own diiBculties. Yet more, the Bishop of Toul, who was Wilfrid's travelling companion to Eome, did sit in that synod. So far, therefore, the action of the pope involves a recognition of Theo- dore's jurisdiction. Lastly, in the sentence of restoration not a doubt is thrown on Theodore's jurisdiction. Wilfrid had asked for a decision as to whether he was " privatus " (p. 138). The sentence was, " Episcopatum, quem nuper habuit, recipiat." The partitioning of Wilfred's diocese into three, which Theodore had carried in council with the king, was affirmed, though the persons appoiated to them were to be changed. As the climax of the conduct for which Wilfrid was deprived was his threaten- ing to appeal to Eome, he receives from the pope much com- mendation for his dutifulness, but he is replaced only in the diminished see. The legendary story of Wulfstan, who was not deprived, and was not tried in any way which could be called synodical, seems to have no bearing on the question except as shewing by what authority Anglo-Saxon and Norman bishops believed that they held their sees (Freeman's Norman Con- quest. (2)) The Court has considered also the other instances up to the end of the twelfth century, but they only shew what is unquestioned, and continues to appear, that there was more than one way in which episcopal causes were heard. With respect to the complaint against Becket for suspending the Bishop of ' Salisbury, it should be observed that it is not rested upon the use or abuse of legatine power, since the complaint is of his acting " absque (episcoporum) consilio," or, as they state it them- selves, " priusquam causa comprovincialium aut aliquorum etiam fuisset arbitrio comprobata." It is exactly the same ground as (I) Haddan & Stubb?, vol. iii. pp. 131, 13G. (2; Vol. iv. p. 37i).
( 2r> )
1889 WiltViil allej^ed ngainst Tlieodoro, iiiul it 1ms not oven been
Keau aririied that the objectit)!! was eiitortaiiiod (^latLM-ials for Hist, of BisHoroF l*<-''^'J^»-^t- (D) After reviewiiip; the earliest evidence, the canons, LiNcvLN. their reception elsewhere, their reception in England, the in- Tiw Arvna*iK.p stances of jurisdiction, the Court fails to satisfy itself that up to that date there was an exclusive jurisdiction over these cases in a synod of bishops. Before we leave this division of the subject, the three passages should be noticed which were cited to prove that the antient canons have parliamentary authority as law in Enirland. The first (25 lien. 8, c. 19, s. 7), simply continues the authority whatever it was which the canons already possessed. The second (1 Eliz. c. 1, s. 3G), relates to the Four Councils only as ruliug what was heresy, when they rested on Scripture. Also it has long disappeared from our Statute-book. The third was found in an Exhortation in the Ordinal, where there is a refer- ence to "antient canons" which echo the Scripture precept " not to be hasty in laying on of hands." It was said that the reference is to the second and eighth Apostolic Canons. I do not see the resemblance ; but the allusion is undoubtedly to the Fourth Council of Carthage, which is actually referred to by name in one of the old Latin Pontificals in the corresponding exhortation (Martene, Ant. Ecc. Eit. vol. ii. p. 386). It will scarcely be argued that the canon of the Fourth Council of Carthage became English law through that ' quotation, but if it would not neither would the others. This is all the parlia- mentary authority advanced.
But it was argued that English usage shews that at a later time, " The true mode of judging a bishop is not by the arch- bishop alone, but by Convocation, Council, or Synod, whatever phrase you choose to employ." It had before been put to the Court (and no exception is taken to the statement), that Convo- cation is a provincial synod or council, and as such has certain judicial functions. Therefore we proceed at once to the consi- deration of the cases which have been cited as distinct incontro- vertible examples of trials of bishops by Convocation. The first case, urged as a forcible proof that the jurisdiction of the arch- bishop over bishops must be exercised in Convocation is that of (1) Vol. V. pp. 106, i2L
( 27 )
the Coadjutor of Hereford in 1393. He was summoned to trial 1889
by the archbishop with high assertion (it is said) of his judicial ^[^
authority, but summoned before Convocation and tried there. ^ ^
Bishop op It is, however, a case of no importance. The Coadjutor of Here- Lincoln.
ford was not a bishop ; and he was a member of Convocation. The Archbishop
He was cited to appear before the archbishop at the next Convo- "" *" ^"^ ^^^'
cation, which he was bound to attend. It is not pretended that
the archbishop might not have corrected him by his visitorial
power and in other ways, and it is not to be imagined that a
Court such as the present would be convened to decide a case of
negligence in a presbyter who was commissary to his sick bishop.
Many cases found their way, as this did, to Convocation to meet
the convenience or feeling of the bishop. Gibson writes thus :
" If a bishop in his diocesau Court upon examination did not see
cause to deliver over the party accused to the secular power,
either the degree or evidence of the crime falling short . . . the
person was frequently brought before Convocation." (1) The
reluctance of the bishops to hand over the person to the secular
arm, and the odium aroused when they did so, are visible through
the whole fourteenth century. Convocation did no more in the way
of inflicting penalties than the bishop himself could have done
if he had chosen. The Calendar of Authenticated Trials for
Heresy prior to the year 1533 (2) shews how many cases of this
class, in which the process was initiated in Courts of bishops and
of the archbishop, came thus before Convocation. The coadjutor's
case is one of discipline taking the same course. It has no
relation to trials of bishops. The second case is that of Bishop
Cheney, (3) in 1571. But the Case of Bishop Cheney is no trial
by synod. It is a mere case of wilful contumacy in and against
Convocation. At the opening of every Convocation it is declared
that all members who are absent without necessary and approved
reason will be visited as contumacious with the canonical
penalty ; " iutendimus . . . contumacias eorum qui abseutes
fuerint canonice punire." The canonical penalty is the " Major
Excommunication " (4) : and there is an instance of many
(1) Synodus Anglicana, ch. xiv. (3) Strype's Parker, vol. ii. p. 52, p. 169. ('!) Gibson's Syuodus Anglicana,
(2) 2nd Appendix, Ecc. Courts pp. 27, 26. Coram. Report.
1889
( iis )
mombors being suspoiulod for siu-h contumacy by Archbishop Read Wliitjjfift, "a colebmtiono diviiioruui et omniniodo oxercitio BisHoror ccde^jiastica^ jnrisdictionis " in ir>S(j. (1) liishop Cheney avoided ^'l^^''- signin<x the Tiiirty-nino Articles for nine years, from 15G2 to ^«\**'ciru/i>tl!v!' ^^^^ (being " popishly aflected ") ; and wlHully absenting himself from the Convocation which was to sign them (before publication) in the latter year, was excommunicated for con- tumacy and contempt according to the forms of Convocation (see JStrype's Parker. (2)) The suspension of Bishop Goodman, (3) in 1G40 is equally destitute of any appearance of a trial by synod. It was an act, and an arbitrary and oppressive act, of the President and Houses of Convocation. The account is minutely given in the acts of Convocation for that year. (See Gibson's App., pp. 51 if.). The signing of the draft canons of 1640 having been fixed for May 29, Bishop Goodman alone of the two Houses refused to sign. Three canonical monitions to him to sign were compressed into the time occupied by the rest in signing. He still refused. The archbishop then not only pro- nounced (decrevit) that he should be deprived, but ordered his official principal to draft the sentence of deprivation. He then took the sense of the House, which, as well as his own voice, was necessary to the validity of the act. In Convocation of course all bishops are " assistentes," and all have votes. The majority, which was all that was required, was seen to be for deprivation ; and Goodman signed. The archbishop then required him to declare whether he signed " voluntarily, ex animo, without equivocation, evasion, or mental reservation." Goodman replied that he had signed and would say no more. Nevertheless, both Houses pursued the case, and both resolved that now he should be suspended from office and benefice for the " scandal " he had caused. Further, the Lower House petitioned the archbishop that he should be called upon to take a new oath required by the new canon just signed, which had not yet received the Royal assent, and to answer the question which had been put to him. He was ordered not to leave London (Westminster ?) until he had taken the oath, and the archbishop then suspended him
(1) Gibson's Appendix, p. 163. (2) Vol. i. p. 51 ff, and Appendix.
(3) Sec note (1), p. 0.
( 29 )
(cum consensu totius Synodi . . . suspendendum fore decrevit), 1889
This all took place in one day and in one sitting. Thus the two rbad
instances supposed to establish the trial of bishops before Con- bishop op
vocation are, in fact : (1) one of them, a mere putting in execu- Lincolk.
tion of the canonical penalty for the enforcement of attendance : The Archbishop
. ' of Canterbury.
(2) the other, in form simply an act of Convocation. It was argued that the voting of the bishops in Bishop Cheney's and Bishop Goodman's cases shewed that they were judicial proceed- ings. But this is an error ; a majority would be necessary in any act of Convocation. The Eoyal assent to any Act requires the " greater number of the bishops whereof the president to be one." But "in trials before Convocation the members do not vote " (evidence of Dr. Stubbs, Bishop of Oxford, in Ecclesias- tical Courts Commission Eeport, question 1155). The same great historical authority writes (App. (1) to report already referred to, p. 45), " before the Keformation the Provincial Con- vocation may be fairly regarded as a court attendant on and assessing to the archbishop, discussing cases of litigation or correction which were brought before him therein or were laid by him before his clergy. But we are inclined to believe that so far as jurisdiction was concerned the authority resided in the metropolitan and not in the synod." This passage perhaps may seem to illustrate how the function of Convocation as assessors to the archbishop in the exercise of his jurisdiction may be dis- charged by certain members of the body. Further, in claiming Convocation (regarded as the Provincial Synod) as the proper Court for the trial of a bishop it was not explained how the necessity for the concurrence of a majority of the Lower House, which is required for the validity of the acts of Convocation, is consistent with the supposed requirements of antient councils that a bishop should be tried by comprovincials only. However, it is not necessary at present to go further into the question. It may also be observed that from the year 1551 to 1662 no autho- rity was likely to be producible bearing either way upon the right of the archbishop, whether in his own court, or in synod, or Convocation, to try a suffragan, for as long as the Court of High Commission lasted all important offenders in causes touching doctrine or ritual were brought before it, as well as
( 30 )
persons, wliether laity or clorjjy, nccusod ot' ininionility or mis-
\ir\v i'i>iithu't, rerusancy or iioiu'Dnformity (Hist. App. (I), p. 50).
„ •■• Lastly, while in the bej^iiinin}:: of the seventeenth century the
Bisiior or • ...
List-ouM. opinion oi' the judjj^es in ]V/iis(on's Case, given witii the reservation
T»i«- AnhLisiiup that upon argument they might alter their view, is in support of
of e*iucrl>urv. ..... . ' . . . • i i
Some jutluMal jiower m Convocation, it remains uncertain whether they intended that it could be exercised against persons or only against doctrines as in books, and it is in no way adverse to a jurisdiction residing elsewhere as in the metropolitan. (1) The Court therefore holds that while Convocation is a Court of which the president " sedet judicialiter " with the bishop's " assis- tentes," and while there may be causes, processes, or contro- versies which would be necessarily and usefully heard and determined there (proper conditions being fulfilled), it has not been established that it is the only proper Court for the trial of a bishop, and no instance of such a trial has been adduced.
It now remains to consider the arguments on the jurisdiction of the metropolitan. The antient canons themselves, w ithin even the seventy years from Constantinople to Chalcedon, shew the tendency towards that centralization which was impossible before the Church emerged from isolation and oppression, and from the first traces of this there appears all through a jurisdiction vesting in and exercised by the metropolitan, sometimes with, sometimes only in a synod, and sometimes separately. Thus we observed that as early as a.d. 451 the highest trials between bishops are to be taken before either the Exarch of the dioicesis or the Arch- bishop of Constantinople. xVnd thus we find still earlier among a small number of bishops who assembled in a counter-synod at Ephesus in a.d. 441 some bishops who " many years before had been deposed for grave causes by their own metropolitans — TT/ao iroWcov ircov eVi Secvat^; alTLai<; Kad-pprj/jbivot and twv IBicov fj,r)Tpo7ro\i,T6)v " (" Epist. Synod Cone. Eph. ad Ccelestinum," Labbe, Paris, v. iii. p. 364). In England some of the early synods which tried bishops were not synods of bishops or clergy exclusively, and up to the end of the twelfth century sentences pronounced by the archbishop alone, in the exercise of this juris- diction, are sometimes appealed or protested against to king or (1) Broderick & Freemantle, pp. 325, 326.
( 31 ) to pope, but never set aside (if set aside at all) on the ground that 1S89
he had no such jurisdiction. It is scarcely necessary to enter read upon the question of the legatine jurisdiction, since no cases are Bishop op alleged as examples of its being employed in trials of this kind. Lincoln. But as it has been suo:2;ested that the archbishop might have had The Arcbbishop
°° , . of Cuuterbury.
powers as legatus natus which he had not as metropolitan, I may refer to the opinion of one of the most competent authorities of our own or other times. The acceptance of the legatine commis- sion by the archbishops " is of less constitutional importance than might at first sight seem probable." . . . (Its) " effect was not the creation of new legatine Courts, but the clothing of the ordinary Courts with some shadow of legatine authority." " Eng- land resisted the intrusion of foreign legates, sent from time to
time to ... . supersede the action of the metropolitans
Not only the kings, but archbishops like Anselm, remonstrated against the aggression. According to Anselm, the archbishops of Canterbury, by the law and custom of the Church, possessed all the rights and powers that were by the delegation of the pope's powers bestowed upon the legates — a statement which, interpreted by history, means that they were customarily free and indepen- dent of foreign interference in the administration of their pro- vince." " But the practical decision of the investiture controversy .... seems to have impressed the English bishops with the belief that it was better to seek for themselves the office of legate than to leave the Church open to arbitrary and mischievous interference from without " (Bishop of Oxford, Historical Appen- dix (1) II. to Keport of Commission on Ecclesiastical Courts, 1883, p. 25). Against the continuous positive evidence of jurisdiction in the archbishop, the letters and extracts put in " On the Powers of the Archbishop," offer at the best, and merely by implication, negative evidence. The authorities from the Year-books do not seem to establish the point for which they are cited. The petition to Edward III. and the reply refer entirely to criminal offences, and are now contrary to the law of the realm. The case of Bishop Pecocke, a.d. 1457, requires to be considered by itself. It offers an example of the difficulties sometimes attending even written contemporary notices by competent persons. These notices, with such other documents as exist, and some later accounts have been
( 32 )
1889 exftminod by many srholiirs. IStill, it remtiins uncertain whether
IUad recoi'ko was deprived, or, after appealing to the pope, resigned on
Bisuoi'or P»'"^i^<> i^f »^ jionsion from the king. Fnrther, there is a donble
LiNoiLs. iiuulo of prooeilnro. Alter withdrawing I'rom the king's council
Tiio Arvhbisiiop at Westminster under pressure (which seems something: like the
of C^uiterbur)-. ...
waiving of privih^ge in U\i{so)is Case), Pecocke appeared at Lam- beth, where the archbishop sate with three bishops described as assessors — Waynliete, Bishop of Winchester; Ciiedworth, Bishop of Lincoln, and Lowe, Bishop of Rochester — received the books wliich Pecocke submitted, and delivered them to twenty-four examiners; received their report ; condemned six articles which were said to be extracted from the books ; caused the condemna- tion of these to be published at Paul's Cross, and subsequently received Pecocke's formal retractation. All this, which is not a mere reporting on the subject but is judicial, is combined with other proceedings in the King's Council at Westminster, where still Pecocke is said by Whethamstede, "citari coram archi- episcopo ;" and there " proesente tarn Domino Rege quam multis proceribus," the archbishop gave him his choice between abjura- tion and death. W^hethamstede's observation is that " reformavit (eum) archipraesularis auctoritas." This combination leaves the action of the jurisdictions which were employed to secure the suppression of Pecocke ambiguous. It should be further observed that, this trial taking place in a.d. 1457, the archbishops of Canterbury had held five trials for heresy since the year 1410, sitting with episcopal assessors. In two cases there were also assessors who were not bishops (Calendar of Trials for Heresy, ut sup.). And though in the instruments belonging to the Process (Gascoine) by which Pecocke was tried the archbishop has the usual style of legatus, there is no token that anything was done by virtue of legatine power. Neither is there any allusion throughout the records to Convocation.
Mr. Jeune has urged in evidence of the plea of the non-exist- ence of the jurisdiction under consideration that Archbishop Parker takes no notice of it in the account which he gives of the privileges and prerogatives of the See of Canterbury in his De Antiquitate Ecclesioe Britannica3 (p. 37, ed. Drake), whilst he gives a minute description of the Courts of Arches, audience and
( 33 ) prerogative in testamentary, matrimonial, and other causes, as 1889
well as of the peculiar (p. 41) jurisdiction of the see. But here, Eead in fact, lies the explanation. lie gives an exact statement of the bishopof scope and practice, the officers, and the advocates of courts which Lincoln. were in daily request — "tam late patentis iurisdictionis," as he The Archbishop
•' ^ . of Canteibiiry.
writes. There was no occasion for him to go into details upon a jurisdiction which, however real and necessary, had not been exercised for more than a century. But he does indicate clearly that there was a wider range of jurisdiction than he actually describes. He not only says that it was the business of the archbishop " provincialia cuncta negotia arbitrio suo moderari et temperare " (p. 43) ; he goes much farther, and too far. He writes (p. 37) : " Archiepiscopi Cantuariensis authoritas non certis atque definitis archiepiscopalis aut metropoliticas jurisdic- tionis cancellis concluditur, sed ordinaria. libera, pa^neque arbi- traria per suam provinciam excurrit et diffunditur." It is impossible to conclude that, when such is his language, Parker excluded suffragan jurisdiction by mere silence when giving the particulars of his every-day courts ; and especially while he was at the same time revising the Reformatio Legum. It is un- reasonable to suppose that jurisdiction in the case of an accused suffragan was excluded from terms so large ; inasmuch as other- wise, large as they are, the most important case of all would be unprovided for, since Convocation had never dealt with or been invoked in such a case. But the Reformatio Legum shews that where it was necessary to codify, Parker and his colleagues expressed themselves in plain terms. That code, begun in 1549, was " carefully framed by Archbishop Cranmer (Strype's Parker, ii. 62) and the committee, which consisted of thirty-two most eminent bishops, divines, civilians, and common lawyers." After abundant labour spent on it, " the whole code as revised and approved by Archbishop Parker," who had been a member of the committee from first to last, "was made public with the archbishop's consent in (1571) the same year in which the Thirty-nine Articles were signed by Convocation and ratified by Parliament" (Cardwell, pref. to R. L. (1)). It is hardly necessary to remark that it is cited here simply in evidence, not
(1) rage 11.
D
( -I )
1889 rts cunstitutional iiutlmiit y. I'ikIit titlo Do EtH'lesia, ^Vc. c. K!, KitAU after provision lor nppfiils to tlio archliislKip ami for his atl- BisHoi'OK JHiliiMtiii^ oil (|iiestit)ns bctwieii his coinproviiirials — ".Index Lisua.N. pj liiiitor inter cos esto archiopisfopiis " — the article proccedH TbeAtvbbWiop thus: — "Fnrtlior, ho shall hear and iudiro accusations ajrainst the bishops of his own province." " Ad ba3C audiet et jndicabit accusationes contra episcopos sna> provincia>." A more definite direction cannot be ci)nceived, nor ii clearer testimony to the settled opinion of I'arker at the very time \vhen it is urged that the De Antiquitate shewed he never thought of such a jurisdic- tion. The Keformatio Legum was published com[)lete in 1571, and the I)e Antiquitate iu 1572. I should add that in title De Deprivatione, c. 4 (Cardwell (1) ), it is ordered that, if a bishop is in peril of being deprived for any crime, the archbishop, with two bishops named by the Crown, are to take up the cogni- zance of the afifair. But before we part from the evidence which Parker thus bears to the range and application of the jurisdiction, it is desirable to notice how in his magnifying of the office one point which he wishes to make clear is that along with it the Metropolitical See had received the fullest possible rights of dis- pensation (De Ant. (2) ). The wording of the passage, "totum illud legum rigorem mitigandi jus, quod dispensare dicitur," seems to shew that, in Parker's view, the duty of tolerance was the complement of power. A letter from Parker to Sir William Cecil of April 28, 1566 (Correspond. Parker, L. ccxxv. Par. Soc. (3) ), was alleged as shewing the archbishop's own sense that he had no jurisdiction as to suffragans. But read in its con- nection with the history, that letter is not concerned with jurisdiction, but with the impossibility of enforcing obedience so long as the queen was unwilling to give the help of her Council. Such being the jurisdictioi], there is therefore no difficulty as to the canons of 1604. The ground taken by Sir W. Phillimore was that, affirming recent canons made from 1580 onwards, by which the archbishop, first alone and then with an assessor, formed a tribunal, they created a ne\y court expressly for the suspension of bishops. The argument was that this proves that
CI) Page 166. (2) Page 37.
(3) Page 280.
( 35 ) previously the archbishop's was not a court capable of such act 1889
of suspension. But it was not the court that was new, but the Read penalty. Previously it was part of the common law of the Church j^^^^^
HOP OF
that a man should not be ordained without a title, unless the Lincoln. bishop was prepared to maintain him: nor without examina- The Archbishop
, , of Canteibuiy.
tion of his qualifications and character (see Phillimore, Eccl. Law (1)). But there had been no penalty under previous enact- ments, and the scandals are well known which were brought about through neglect of the rule. Accordingly the 33rd and 35th canons of 1604 fix penalties, as the enactments of 1580, 1585, 1597, had done (though shortening the term in one case) in the form of suspension by the archbishop from conferring holy orders. They give to the archbishop (as the court has to be named), according to apparently unbroken precedent, the benefit of assessorship, but only one assessor, since cases so simply proved required no more. In the 36th canon, where the question was mere matter of fact as to whether the candidate had subscribed the three articles, it is simply stated that the bishop who had not required him to do so shall be suspended, without even naming the authority by whom. We must here observe that if Con- vocation, or the archbishop in Convocation, had really been the proper and usual court for the suspension of a bishop, this could not have failed to be asserted in canons made by the Convocation itself. It is not necessary to examine the general language cited from authors, or from practice books, althongh they do not all point one way, nor to refer to such great canonists as Thomassin or Beveridge, who were not cited, because no opinions of the kind can affect the grounds which are before us as fully or more fully than before the writers. The great specific learning and ecclesiastical science of Antonio de Doniinis, Archbishop of Spalatro, and Dean of Windsor, even if of his numerous proofs all may not be equally valid, cannot be lightly set aside. His conclusion, after elaborate research and argument, is that the metropolitan " ordinariam jam habere in episcopos sua) [)rovinci{L» potestatcni," or otherwise that he is " ordiiiariiis admonitor corrector et judex adversus suoruin suffragancoruiti vel negligentiam vel cxccssus." The "ordinary power," wliich
(1) Page 11^0.
D 2
( .'J^'' )
lSSi» wrts supposed to have boon (limiiiislied by an Act of Charles L, IUad was restored with certain savings by the Act of 13 Car. 2, c. 12. BisHoror ^^Iien Archbishop SheUh)irs hotter in 1()7() is qnotcd witli Lisivijj. ,^ yij>^y ^^■, shew that in his judgment this particuhir judicial . ArviiMsixp power did not reside in tho archbishop because he makes no mention of it, it can scarcely have been observed that neither docs ho mention the Court of his Yicar-General, nor the Court of Arches, nor the Court of Audience, nor yet that judicial power which it is argued that the archbishop had in synod, Convocation, or other. If Archbishop Sheldon's silence as to the judicial power now under discussion means that it did not exist, then neither did any of the others exist, not even the power in Convo- cation which is contended for in the protest. Why he omits the formal mention by name of these judicial functions I do not know (perhaps because of the detail necessary to discriminate them), but it is observable that he does say very distinctly that the archbishop "episcoporum in regimine episcopali errata et neslijrentias corrigit." This cannot have been done without some kind of Court, not proprio motu, or arbitrarily. And Sheldon is not speaking of the visitorial power throughout the province. He deals with that some lines lower down. The case of Bishoj) Wood of Lichfield (1684) tells but little. It was an arrangement. Two suits about dilapidations (in one of which he was plaintiff, in the other the archbishop's office was promoted against him), and a third, brought against him for non-residence, were, by consent, referred to the arbitration of two bishops. The arbitration was allowed and the award confirmed by the Court of Arches, and the sentence, part of which was suspension, was formally pronounced by the archbishop in Lambeth Chapel, a bishop of the province and another bishop (not the arbitrators) being present. In two other cases the learned counsel argued that the resort to special commissions by royal authority shewed that trial before the archbishop was not recognised as a possible course — the cases of Bishoj) Compton and of Bishoj) Haclcet. With regard to Bishop Compton' s Case (1686) it is obvious that James II., intending him to be not only tried but condemned, had no other resource than an ecclesiastical commission. It was hopeless to expect that Archbishop Bancroft would himself execute the
( 37 )
king's purpose. There was this further gain in a commission — i889 that, in the absence of the archbishop, it would be presided over ^^
(as was the case) by Lord Chancellor Jeffries. In the case of r^ '"•
Bishop of Bishop Hachet, of Down and Connor, 1693, we need not resort to Lincoln.
the fact that the Bill of Rights did not then run in Ireland in The Arci.bisi.op
, ,.,. Ill . of Canterbury.
order to explain whj it was heard by a commission from the Crown and not by the archbishop. The archbishop. Primate Boyle of Armagh, was incapacitated from the performance of public functions. He had taken no part for ten years past even in con- secrating bishops for his own province, though six consecrations took place between 1683, when he officiated for the last time (see Eecords of Consecration of Irish Bishops, supplement to Irish Ecclesiastical Gazette, 1866), and 1702, when he died, at the age of ninety-three, " his memory gone, deaf, and almost blind, a mere wreck of the past " (Abbey, " Eng. Church," vol. ii. p. 315). Up to this point, then, no precedent has been found to shew that, either by canon, statute, or usage. Convocation or any synod in the realm has exclusive jurisdiction ousting the jurisdiction of the archbishop to try a bishop of his province. On the other hand, frequent indications and mention, and examples, both in- direct and direct, of the exercise from time to time of the arch- bishop's jurisdiction are found continuously from the earliest times. And when the issue definitely appeared in the case Lucy V. Bishop of St. David's, the validity of the jurisdiction was dis- tinctly affirmed, and has been accepted ever since. The suit was promoted ex officio before the archbishop, who held his Court in Lambeth Palace, with his Yicar- General, assisted on each occa- sion by several of the five bishops who were his assessors. Upon proof being offered, and several witnesses examined on each side, the bishop tendered a protest on the suggestion that matters contained in the articles were of a temporal character. The arch- bishop overruled the protest. The bishop appealed to the Court of delegates. The appeal when it came on was heard by five peers, five bishops, five common law judges, the judge of the Admiralty Court, and four other doctors. They dismissed the appeal. But pending the appeal, the bishop moved for a prohi- bition, and Sir B. Shower argued for it, " That it does not appear that the Bishop of St. David's was cited to appear in any Court
( .'hS ) 1889 whereof tlio law takes notice, for the citation is tliat lio slioukl
liiiAu nppenr bei'oro the Arclibisliop of Cunterbury, or his Yicar-General, u. .r\. .V. in the hall of l.aniboth-honsc, which is not any Court whereof the L!.Ncx>i..\. 1,1^^ takes notice. For the archbishop has the same power over iiip AaiibiM.-'i' his sulVrajran bishops as every bishop has over the clerp;y of his diocese, but no bishop can cite the clergy before himself, but in his Court, and therefore the citation ought to have been in the Arches, or in some other court of the archbishop." (1) The argu- ment may in form not be the same, but in substance is identical with the first ground of protest on behalf of the Lord Bishop of Lincoln. No doubt other grounds were shewn in the Bishop of St. David's Case (2), but the prohibition was denied, on all except one article, as to the abuse of a charity. The whole Court held that "the citation was good," and "that as to that which relates to the of^ce of a bishop, the spiritual Court may proceed against him to deprive him." Against sentence of deprivation the bishop appealed a second time to King's Bench for a prohibition ; to the Lords for leave to resume his privilege ; and a second time to the delegates. The King's Bench, in refusing the prohi- bition, declared itself with reference to the case "fully satisfied that the archbishop had jurisdiction," that "by the common law he hath metropolitical jurisdiction," and hath "power to de- prive." The bishop brought a writ of error before the House of Lords on the refusal of the prohibition by King's Bench. It was not received. In the House of Lords, counsel for both sides and the Attorney-General for the Crown were ordered to be heard before the judges. The question of jurisdiction was fully argued, and the ten judges were unanimous for it. The Lords did not pronounce on that specific point, but refused leave to resume privilege. The delegates (an equally strong Court as before, indeed almost the same) were unanimously of opinion (Rothery) that the archbishop had jurisdiction, confirmed the decree of the archbishop, and remitted the cause to him. After that Bishop Watson retained lands of the see, and the palace. Two informa- tions of intrusion were exhibited before the Court of Exchequer which turned on the lawfulness of the deprivation. Judgment was given against him on both. On the former he appealed to (1) 1 Lord llayra. 4-17. App. 27. (2) See ante, p. 9, note (1).
( 39 )
the Exchequer Chamber and juflgment was confirmed ; on the 1889 second to tlie House of Lords, but did not proceed with his writ Read of error. Thus by the dele'>ates twice, in the Kincf's Bench t, ^'
*' ° ' f' BlSlIOI' OF
twice, in the Court of Exchequer twice, by the Exchequer Lincoln. Chamber, and by the House of Lords twice, iudgments were xue Arciibisiiop
. . T 1 JO ot Canterbury.
given which in some instances directly, and in others by neces- sary implication, bore witness to the metropolitan jurisdiction now questioned. A consensus of jurisdictions affirmed and re- affirmed it. The case of Lucy v. Bishop of St. David's (1) is referred to inAylifife's Parergon(2),Eoger's Ecclesiastical Law (3), Stephens' Law of the Clergy (4), Phillimore, Ecclesiastical Law (5), Cripps's Law of the Church (6), and by Lord Denman in Dean of York's Case. (7) No doubt is thrown on the decisions by any of these authorities. Two new objections are, however, now raised to the authority of the St. Bishop of David's Case (1) as a precedent. The one is personal to Lord Chief Justice Holt, and need not be considered. The other is that the absolute appearance to the citation in the first instance was a bar to the bishop's raising the question of jurisdiction subsequently. The Bishop of St. David's and his advisers were not likely to miss this point if it could have been taken before the archbishop with any reasonable hope of success. Sir B. Shower would not have argued the question of jurisdiction if he had thought that the bishop's absolute appearance in the Ecclesiastical Court made such contention useless in moving for the prohibition. Mr. Lucy's counsel would simply have answered Sir B. Shower that the objection was taken too late. The distinction stated by Dr. Tristram is on principle sound. Where the matter is one of form appearance will waive the objection, but where the matter is one of substance, such as jurisdiction in criminal suits, the objection may be taken at any time. " Prohibition may be granted at any time to restrain a Court to intermeddle with, or execute, a thing which by law they ought not to hold plea of .... And the King's Court .... may lawfully prohibit ....
(1) See ante, p. 9, note (1). (4) Tagc U07.
(2) Page 92. (5) Pages 1235, 135'J.
(3) Page 107. (6) Page 97.
(7) 2 Q. B. 1.
: ( 10 )
1SS9 as well iiftor jiulLTmout iind exocution as boforo." (Answer of the
Keau jml^es, Artiouli Cleri, Cuke 2d Instit. p. 002.) " Where it a])i)ciirs
Hi-iHoj- or ^^"^^ ^^^^ matter was iu)t within the jurisdiction of the spiritual
l.i.N\x>Lx. Court, a prohil)itii)n lies after sentence or before." Comyns' Di^.
The .\rvi.i.i»i.oi. tit. rrohibition, 1). And same title, F, " where the Court has
uf Ciuit-ruury.
no jurisdiction a prohibition may bo granted upon the request of a stranger, as well as the defendant himself." Compare Taylor v. Morley (1) ; Roberts v. Uunibij. (2) Further, the Bisliop of St. David's Case (3) is an authority for holding that the arch- bishop's right to cite a sulVragan of the province is not interfered with by the Statute of Citations (23 Hen. 8, c. 9). And therefore it is convenient here to remark on what was said (on one of these later cases) touching that statute. That Act was for the protec- tion of persons resident within and subject to the jurisdiction of the ordinary. And while it provided that persons should not be liable to be cited out of the diocese in which they reside, it makes exceptions in the case where the offence is committed " by the bishop .... or other person having spiritual jurisdiction .... or by any other person within the diocese or other jurisdiction whereunto he shall be cited." The bishop may be cited out of his diocese. Accordingly, among all the objections raised in the St. JDavicVs Case (3), the Statute of Citations was not alleged. In the contemporary case oi Bishop Jones of St. Asaph (4) the steps were these : a complaint from the clergy of the diocese ; a metropolitan visitation by commissioners to collect evidence; "a process against the bishop to appear and answer certain articles ;" allegations by the bishop in vindication ; a formal hearing appointed by the archbishop, June 5, 1700 ; suspension decreed, June, 1701, " for six months et ultra donee idonie [sic] satisfecerit in premissis, et aliter a nobis vel successoribus nostris ordinatum fuerit." His " purgation " was not satisfactory, and the sentence was continued for six months more. No objection was taken at law to the jurisdiction or its exercise. (See Narrative, &c., Lambeth Library, 113 K. 17.) Several other recent cases w^ere cited in the argument besides Lucy v. Bishop of St. David's (3) ;
(1) 1 Curteib' Rep. 481. (3) See ante, p. 9, note (1).
(2) 3 Mee. & W. 120. ( i) See ante, p. 10, note (3).
( 41 ) for instance, the Bean of Yorh's Case (1), (in which, as it hap- 1889
pened, prohibition was granted after sentence) ; Loiig v. BisJiop Read
of Cape Town (2) ; Ex parte Bishop of Natal (3) ; Beg v. Arch- bishop of
hishop of Canterbury (4) ; Bishop Comptons Case (5) ; Borter v. Lincoln.
Bochester. (6) In the case of Ex parte Bishop of Natal (3) it The ArchWshop
was laid down that no coercive legal jurisdiction in cases of
heresy was transferred to the Metropolitan of Cape Town over
his suffragan bishops either by law or consensually. But neither
this nor any of these cases, in the opinion of the Court, shew that
the Archbishop of Canterbury has not the jurisdiction as settled
in the Bishop of St. David's Case. (7) Further, recent authority
has confirmed the law as cleared and defined in that case. By
the advice of the law officers of the Crown, Sir Christopher
Eobinson, Sir Eobert Gifford (afterwards Lord Gifford) and Sir
John Copley (afterwards Lord Lyndhurst), that case was acted
upon and proceedings instituted before the metropolitan against
the Bishop of Clogher in 1822. (8)
The Court does not enter upon the question of the Vicar- General of the Province of Canterbury correctly acting as judge instead of the Archbishop of Canterbury because it does not practically affect the present case.
The Court has now examined in detail the facts and reason- ings which have been submitted to it as ecclesiastically grounds against the validity of its jurisdiction. It desires to express its obligations to the learned counsel on both sides for the learning and lucidity with which they have illustrated the subject and fortified their several contentions. The Court finds that from the most ancient times of the Church the archiepiscopal juris- diction in the case of suffragans has existed ; that in the Church of England it has been from time to time continuously exercised in various forms; that nothing has occurred in the Church to modify that jurisdiction ; and that, even if such jurisdiction could be used in Convocation for the trial of a bishop, consistently with the ancient principle that in a synod bishops only could
(1) 2 Q. B. 1. (5) 11 State Trials, 23.
(2) 1 Moo. P. C. (N.S.) 46. (6) Coke, pt. 13, p. 396.
(3) 3 Moo. P. C. (N.S.) 115. (7) Sec ante, p. 9, note (1).
(4) 11 Q. B. Eep. 483, at p. G49. (8) Phill. Ecc. Law, p. 92.
( IL' )
lS8y hoar such ii causo, it noveiilieh^ss riMuains clear tliat the uietro-
RK.iD |>*>litan has rei^uhuly I'MMcisetl that jurisdiction hoth ahme ami
BisHoror ^^*^'' assessors. The I'iuses came all umler *tne jurisdiction, but in
Lincoln, many I'orms : in synods, episcopal, clerical or mixed, in council,
Th* AtvhbWiop in the Upper House of Convocation, with both Houses, in the
Court of Arches, in the Court of Audience (some hold), throuL:;h
the Vicar-Oeucral, through arbitrators, with one assessor, with
three or four or five assessors, alone absque consensu cujuslibet
Episcopi, but always, except for some impediment, personally —
ob reverent iam otlicii and ob reverentiam fratris. Nor is it
stmnge that while the jurisdiction is one, forms should be many
and cases few. The question now before us is touching the
action of the archbishop, sitting together with comprovincial
assessors. There is no form of the exercise of the jurisdiction in
this country which has been more examined into and is better
attested and confirmed.
III. The Court, therefore, although by an entirely different line of inquiry, has arrived at the same conclusion which was arrived at on purely legal principles by the unanimous judgment of the Lord High Chancellor with four judges and five bishops who constituted the Judicial Committee of the Privy Council to advise Her ^Majesty in August, 1888. (1) The Court decides that it has jurisdiction in this case, and therefore overrules the protest.
Proctors for promoters : Waimoriglit & Baillie.
Proctors for the Bishop of Lincoln : Brooks, Jenldns, & Co.
E. S. E. (1) 13 P. D. 221.
( 43 )
[IN THE COUUT OF THE ARCHBISHOP OF CANTERBURY. (1)] 1889
July 23, 24. EEAD V. BISHOP OF LINCOLN.
Ecclesiastical Laio — Bishop — Rubrics — Acts of Uniformity (1 Eliz. c. 2, and 13 & 14 Car. 2, c. 4).
The word " minister," in the rubrics relating to the administration of the Holy Communion, must be taken to include a bishop, and a bishop oificiating as minister in the service of the Holy Communion is bound to celebrate it in the order and form prescribed by the Book of Common Prayer.
Objections to articles (2) : The Bishop of Lincoln was charged by the articles in this suit with having, when officiating as bishop and principal celebrant at a service of the Holy Communion, and being bound to celebrate it in the order and form mentioned in the Book of Common Prayer, failed to do so, whereby he had offended against the ecclesiastical law of England. The articles were substantially the same as the citation in the suit, and the present objection was substantially the same as that raised by the fourth objection of the protest to the jurisdiction, which was not argued when the principal objection was argued. (3) The first objection to the admission of the articles was also the same as that already decided (3) ; the second objection was in the following terms : " The matters charged, seeing that they are charged as being done by the defendant as bishop, are not offences against the laws, canons, and constitutions of this Church and Eealm, and of the Province of Canterbury."
A preliminary application to amend the articles was made by counsel for the promoters, and this having been refused, the objec- tion was argued.
Sir W. PhiUimore, and A. B. Kemi)e (Jeune, Q.C., with them), for the Bishop of Lincoln. The articles do not disclose any legal ground for proceeding against the defendant ; a bishop is not within the scope of the rubrics, and does not offend against eccle-
(1) The Vicar-General of the Pro- ter, Oxford, and Salisbury, as as-
vince of Canterbury (Sir J. P. Deane) sessors.
sat with the Archbishop, and also the (2) See App. 2, p. 4G.
Bishops of London, Hereford, Roches- (3) Reported ante, p. 1.
Liscous.
( M )
^^^ siast'u'iil law by net^Moi-tinjj; to follow llioin, unless tlio ritiuil he Keak employs connotes hereticul doctrines, or is olVonsivo or unseemly, Disiioi'OF *^r 1^ eontrary to tlie directions i2;ivcn ior some {mrticular servu'es in whii'h a liislu^p is sjiecilically mentioned, such as consecration and ordination services, and other purely episcopal functions. The fact that there exists no case of a bishop ever liaving been tried for deviation from ritual shews that a bishop was left to his own discretion, looking generally to the l*rayer l>ook as a guide: Bingham, Antiquities of the Christian Church (1) ; Hook, Lives of Archbishops of Canterbury. (2) In former ages of the Church the bishop of a diocese could alter the missals as he pleased : Kemp v. Wicl'es. (3)
If a bishop is within the Acts of Uniformity then various modern services at which he ofliciates, services for the opening of churches, admission of deaconesses and others, are illegal. If the term " minister " in the ornaments rubric in the first Prayer Book of Edward VI. (1549) is taken to include bishop, then, as the Act of Uniformity of Elizabeth revived that rubric, bishops should wear the vestment prescribed by that rubric, which they do not ; again, if the term " minister " in the Advertisements (Cardwell's Documentary Annals, vol. i. p. 326) includes a bishop, then he ought only to wear a surplice, for the Privy Council have pronounced surplices to be obligatory : Ridsdale v. Clifton. (4) It is clear that the word " minister " in the rubric to the com- munion service does not include bishop, nor does it in the Canons of James I. [They referred to canons 14, 26, 27, 33, 36, 38, 39, 55, 58, 62, 63, 65, Qd>.'\ It is also contended that the words " all and singular ministers," and " any manner of parson, vicar, or other whatsoever minister " in the Act of Uniformity of Elizabeth (1 Eliz. ch. 2, ss. 3, 4) do not include bishop : Archhisliop of Caiiterhurifs Case (5), Copland v. Poivell (6), Cope v. Barber. (7) Very similar words in the Act of Uniformity of Charles II. (13 & 14 Car. 2, c. 4), ss. 2, 3, 6, 24, do not include a bishop.
Sir H. Bavey, Q.C., and Tristram, Q.C. {Danchwerts, with them), for the promoters. The word " minister " in the rubrics must be
(1) Bk. II., ch. vi., s. 1. (4) 2 P. D. 276.
(2) Vol. vii. p. 299. (5) Coke's Rep., Pt. II. 555.
(3) 3 Phill. 264 (268). (6) 1 Bing. 3G9. (7) Law Pep. 7 C. P. 393 (103).
( 45 )
taken to include a bishop, it is a general word applicable to any persons who minister in a service of the Church ; in the second Prayer Book of Edward VI. it is stated that there have been three " orders of ministers in Christ's Church, bishops, priests, and deacons." [They referred to the prefaces to the several Prayer Books, the present Service for the Consecrating of Bishops, to canons 24 and 55 of 1603, and to Shipley's Glossary of Eccle- siastical Terms — Minister.] It was contemplated that the Acts of Uniformity should apply to every one in the Church, and it is contended that the words of the Act, both of Elizabeth and of Charles II., include bishops ; the Prayer Book of Charles II. is annexed to the Act of that reign. Sir W. Phillimore, in reply.
The Akchbishop of Canterbury. We have before us the objections raised by counsel for the Bishop of Lincoln to the admission of the articles in this suit. The first objection was not pressed ; as regards the second, the Court is of opinion that when a bishop ministers in any office prescribed by the Prayer Book he is a minister bound to observe the directions given to the minister in the rubrics of such office.
1889
Read
Bishop op Lincoln.
The Bishop of Salisbury dissented.
Objection overruled.
Proctors for promoters : Waimvright & Baillie. Proctors for Bishop of Lincoln : Broolcs, Jenh'ns, t& Co.
E. S. R.
( -I'i )
APPKXDI \
APPENDIX L
1888 Kx I'AurK Jvl'-Al)
July 20; '1^'*' judgment of the Privy Ciuincil was as fallows and was dulivoiod by
Loun llAi.sni'RY. " Tlicir Lordshiiis are of opinion that the Archln.sliop has jurisiliction in this case. Tlicy are also of opinion that the abstainiujj; by the Archbishop from entertaining the suit is a matter of appeal to Her Majesty ; they desire to express no opinion wliatever as to whether the Archbishop has or lias not, a discretion wliether he will issue a citation ; and they will humbly advise Her Majesty to remit the case to the Archbishop to be dealt with according to law."
Aluj. 3.
APPENDIX 2.
ARTICLES.
In the Coukt of His Grace the Lord Aeciidisiiop of Canterbury.
THE OFFICE OF HIS GRACE THE LOED ARCHBISHOP OF CANTER- BURY AS JUDGE PROMOTED liY ERNEST DE LACY READ WILLIAM BROWN FELIX THOMAS WILSON akd JOHN MARSHALL
THE RIGHT REYEREXD EDWARD By Divine Permission LORD BISHOP OF LINCOLN.
In the Name of God Amen.
We Edward White by Divine Providence Lord Archliishop of Canterbury Primate of All England and Metropolitan To you The Right Reverend Father in Christ Edward By Divine Permission Lord Bishop of Lincoln All and singular the articles heads and Intei rogatories hereunder written touch- ing and conciming your Souls health and the lawful correction of your manners and more especially fur having when ofliciating as Bishop and the principal Celebrant in the adniini.-tratiun of the Holy Communion in the Church of St. Peter at Gowts in the City of Lincoln and in the Cathedral Church of Lincoln in the month of December One thousand eight hundred and eighty-seven licen party to and taken part in the observance of certain unlawful rites and ceremonies namely the using and permitting to be used lighted candles on the Communi(jn Table during such service as a matter of ceremony and when not wanted for light the mixing of water with the sacramental wine and the conse- crating and the administering of the same lo the communicants when so mixed
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the ojionly and ceremoniously niakin'j; the si^n of the Cross during such service Tleadings.
the observance of the ceremony of ablution and standing yourself whilst reading
the Prayer of Consecration on the west side of the Holy Table with your back to the people in such manu' r that the communicants could not see you bref-k the bread and take the cup into your hands and for having also been party to the singing of the Agnus Dei after you read the Prayer of Consecration and imme- diately before the reception of the sacramental elements all of which acts observances ceremonies and additions to the said service were in contravention of the ecclesiastical laws of England do by virtue of our office at the voluntary pro- motion of Ernest de Lacy Read of Cleethorpe in the County and Diocese of Lincoln salesman and auctioneer William I'rown of Great Grimsby in the County and Diocese of Lincoln solicitor of the Supreme Court Felix Thomas Wilson of the said Parish of St. Peter at Gowts in the City of Lincoln in the same Diocese and John Marshall of the same Parish gardener article and object as follows to wit : —
1. — That in the year One thousan<l eight hundred and eighty-five you the said Right Reverend Edward by Divine Permission Lord Bishop of Lincoln (then the Reverend Edward King D.D.) were nominated elected confirmed and enthroned or installed to the Bishopric of Lincoln in the Province of Canterbury with its rights members and appurtenances and from that time to the jDresent time have been and still are Lord Bishop of Lincoln and that as such you are bound to observe the laws statutes canons and constitutions of this Realm.
2. — That by two Acts of Parliament passed in a Session of Parliament holden in tlie first year of the rtiu,n of Queen Elizabeth CiiajD. 2 and in the ISih and 14th years of the reign of King Charles the Second Chapter 4 and by the 14th 36th and 38th of the Constitutions and Canons Ecclesiastical made in the reign of King James the First all Bishops are (among other things) bound to say and use the Celebration and Administration of both tlie Sacraments in such order and form as is mentioned in the book intituled The Book of Common Prayer and Administration of the sacraments (annexed and joined to the said last-mentioned statute) And other Rights and ceremonies of the Church according to the use of the Church of England and are bound openly to use no form or order of ad- ministration of Sacraments rights or Ceremonies in any Church or Cliapel other than what is prescribed and appointed to be used in and by the said book and that any Bishop offending against the said statute Constitutions and Canons ought to receive such Ecclesiastical sentence as the nature of the offence and the exigency of the law demand.
3. — That you the said Riglit R verend Edward by Divine Permission Lord Bishop of Lincoln in the Church of St. Peter at Gowts in the County of the City of Lincoln in the Diocese of Lincoln and in the Province of Canterbury on Sunday morning the Fouith day of December One thousand eight hundred and eighty-seven when you were officiating as Bishop or Minister and the principal celebrant in the Service for the Administration of the Holy Communion in the same ( hurch used and permitted to be used li;^hted Candles on the Connnunion Table or on a ledge immediately over the said Table so constructed as to appear to form part of the said Communion Table during such service as a matter of ceremony and when such lighted candles were not wanted for the purpose of giving light.
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rtKAUiNos. -i- — Tl»;\t you tlic said Right Rovcrciul Eilwnnl by Piviiio Pi'rmissi(Mi Lord
Bishop of Linoohi in the Church of St. Peter at Ciowts alorcssiiil iu the Diocoso
ami lV)viuco aforostuil on the said Sundiiy I^rorniiifT of the snid fourth day of iVcomWr One thousiind eii^ht htuuhvd and iMghtv-scvon when you wrro ofliciat- iug as Uisliop or Minister and the Principal Celebrant in the Service for tlio ad mi lustration of the Holy Conununion in the preceding Article mentioned in the sjiuie Chtu-ch caused iK'rmiltcd and were a party to and took jwrt in the mixing of water witli the Sacramental Wino intended to bo used in the adminis- tratiou of tlie Holy Comnumion at such Service and subsequently at the said Service consecrated the said Wino and Water so mixed and thereupon admini- stereil the s;\id Wine and Water so mixed to the Communicants at sucli Service. 5. — That you the said lUi^ht Reverend Edward by Divine Permission Lord Bishop of Lincoln in the Church of St. Peter at Gowts aforesaid in the Dioceso and Province aforesaid on the said Sunday Morning of the said fourth day of December One thousand eight hundred and eighty-seven when you were ofliciat- ing as Bishop or Minister and the Principal Celebrant in the service for the administration of the Holy Communion in the last preceding Article mentioned stood while reading the prayer of Consecration in such service on the West side of the Uoiy Table with your face to the East and between the people and the Holy Table and with your back to the people in such wise that the Communi- cants present being then conveniently placed for receiving the Holy Communion when you broke the bread and took the Cup into your hand could not see you break the bread and talie the cup into your hand according to the directions in that behalf contained in the Rubric immediately before the Prayer of Consecration.
6. — That you the said Right Reverend Eilward by Divine Permission Lord Bishop of Lincoln in the said Church of St. Peter at Gowts in the Diocese and Province aforesaid on the said Sunday Morning of the said fourth day of December One thousand eight hundred and eighty-seven when officiating as the Bishop or Minister and Principal Celebrant in the Service for the Administration of the Holj' Communion in the last preceding Article mentioned in such Church caused or permitted to be said or sung before the reception of the Elements and immediately after the reading of the Prayer of Consecration in such service the Words or Hymn or Prayer commonly known as the Agnus that is to say Oh Lamb of God that takest away the Sins of the World — Have mercy upon us.
7, — That you the said Right Reverend Edward by Divine Permission Lord Bishop of Lincoln in the said Church of St. Peter at Gowts in the Diocese and Province aforesaid on the said Sunday Morning of the said fourth day of Decem- ber One thousand eight hundred and eighty-seven when officiating as the Bishop or Minister and Principal Celebrant in the Service for the Administration of the Holy Communion in the last preceding Article mentioned in such Church whilst pronouncing the absolution conspicuously and ceremoniously having both your hands elevated and looking towards the Congregation made with your hand the sioii of the Cross and also that you again in like manner whilst pronouncing the Benediction in the same service made the sign of the Cross such sign being a ceremony in addition to and other than a ceremony prescribed to be used in the Service for the Administration of the Holy Communion by the Book of Common Prayer and Administration of the Holy Communion and other Rites and Ceremonies of the Church.
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8. — That you the said Right Reverend Edward by Divine Permission Lord Pleadings.
Bishop of Lincoln in the said church of St. Peter at Gowts in the Diocese and
Province aforesaid on the said Sunday Morning of the said Fourth day of December One tliousand eight hundred and eighty-seven when officiating as the Bishop or Minister and Principal Celebrant in the Service for the Administration of the Holy Communion in the last preceding Article mentioned in such Church without any break or interval and as connected with and as forming part of the Rites and Ceremonies of such Service caused practised permitted and were a jDarty to and took part in the ceremony of Ablution — that is to say of iiouring wine and water into the paten and chalice which had been used for the Adminis- tiatiou of the Holy Communion at such Service and by then yourself diinking up such wine and water in the face of the Congregation being a ceremony in addition to and other than a ceremony prescribed to be used in the Service for tlie Administration of the Holy Communion by the Book of Common Prayer and Administration of the Sacraments and other 'Rites and Ceremonies of the Church.
9. — That you the said Right Reverend Edward by Divine Permission Lord Bishop of Lincoln in the paid Cathedral Church of the Blessed Virgin Mary of Lincoln in the City Diocese and Province aforesaid on Sunday the eighteenth day of December One thousand eight hundred and eighty-seven when officiating as the Bishop or Minister and Principal Celebrant in the Service for the Administra- tion of the Holy Communion stood during to the whole of such service down to the ordering of the Bread and Wine before the Prayer of Consecration on the West side of the Holy Table and not on the North side thereof.
10. — That you the said Right Reverend Edward by Divine Permission Lord Bishop of Lincoln in the said Cathedral Church aforesaid when officiating as Bishop or Minister and the Principal Celebrant in the Service for the Administra- tion of the Holy Communion in the last preceding Article mentioned stood whilst reading the Prayer of Consecration in such service on the West side of the Holy Table with your face to the East and between the people and the Holy ""J'able and with your back to the people in such wise that the Communicants present being then conveniently ])laced for receiving the Holy Sacrament could not when yc^u broke the Bread and took the cup into your hands see you break the Bread and take the Cup into your hands according to the directions con- tained in the Rubric immediately before the Prayer of Consecration.
11. — That you the said Right Reverend Edward by Divine Permission Lord Bishop of Lincoln in the said Catheilral Church aforesaid on Sunday the eighteenth day of December One thousand eight hundred and eighty-seven when officiatin"' as Bishop or Minister and the Principal Celebrant in tlie Service for the admini- stration of the Holy Communion conspicuously and ceremoniously whilst pro- nouncing the Absolution having both your hands elevated and looking towards the Congregation made with your hands the sign of the Cross and that you also in like manner whilst pronouncing the Benediction in such Service again made the sign of the Cross such sign being a ceremony in addition to and other than a ceremony prescribed to be used in the service for the Administration of the Hdly Communion by the s-aid Book of Common Prayer and Administration of the Sacramental and other Rites and Ceremonies of the Clnuxh.
12. — That you the said Riglit Reverend Edward by Divine Permissiun Lord
E
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PusAiuNos. Uishop of Lincoln in the 8;iid Crttlie<lral Cliuali :iforos;iitl on Suulay tlie ci>;litcc'nth »l;»y of DivtMulRT Olio thoiisiuul ei^lit iumiiroil und cii;lity-seveii inimcHliatcly aftor pu>no<UK-iiig tlu- lU'iioliction in tlio sorvico for the Ailniiiiistration of tiie Holy (.'oninumion aiul without any break or interval ami as ei>nnecteil witli ami fi>rniins \K\rt of the Kites ami Ceremonies of such service caused or iK^rmitted and were jviuty to and took part in the Corcniony of Ablution that is to say of lHuirin;4 Wine and Water into the Paten and Chalice which had been used for the adnuiiistration of the Holy Communion at such service and by then yourself drinking up such Wine and "Water in the face of the cong'egation bein;^ a ('ere- luuny in additii>u to and otlier than a ceremony prescribed to be used in the service for tlic Administration oi the Holy Communion by the said Book of Common Prayer and Administration of the Sacraments and otlier rites and Cere- monies of the Church.
13. — That the use of the lightetl candles the mixing the water with the Sacra- mental Wine the saying or sinking immediately after the reading of the Prayer of Consecration of the Agnus "Oh Lamb of God that takestaway the sins of the World — Have nurcy U[xiu us" the conspicuously and ceremoniously making the sign of the cross and the ceremony of Ablution as Articled and complained of against you the Pight Eeverend Edward by Divine permission Lord Bishop of Lincoln in the third fourth sixth seventh eighth eleventh and twelfth preceding Articles are respcctivfly unlawful additions and variations from the form and order prescribed and apiM)inted by tlie sai<l Statutes ?nd ot the order of the administration of the Holy Communion contained in the Book of Common Prayer and are resjiectively contrary to the said Statutes and to the Rubrics of the order of the Administra- tion of the Holy Communion and tn the 14th SGtli and 38th of the said Constitu- tions and Canons,
14. — That the mixing of w.itcr with the Sacramental Wine and the consecrat- ing and administering the same when so mixed as articled and complained of against you The Right Reverend Edward by Divine permission Lord Bishop of Lincoln in the fourth preceding Article were acts done in contravention of the I)rovi>ions of the Rubrics prescribing the elements to be used in the ailmiiiistra- tionof the Holy Communion and in respect of the consecration and administering of the same.
15. — Thit jour s'anding whilst reaUng the prayer of Conseciation on the West side of the Holy Table with your back to the ])eople so that the Communi- cants present being conveniently placed for receiving the Holy Communion when you broke the bread and took the cup into your hands could not see you perform the manual acts as prescribed by the Rubrics as articled and complained of against you The Right Reverend Edward by Divine permission Lord Bishop of Lincoln in the Fifth and Tenth jireceding Articles was in contravention of the directions of the Rubric immediately before the Prayer of Consecration.
16. — That you the said Right Revereml Edward by Divine Permission Lord Bishop of Lincoln as Bishop of Lincoln are a Bishop Suffragan of the Province of Canterbury and therefore and by reason of the premises were and are subject to the jurisdiction of this Court.
17. — That the said Ern( st de Lacy Read William Brown Felix Thomas Wilson and John ilarshall the Promoters in the Cause have rightly ami duly complained of the jiremises to us the Judge aforisaid and to this Court.
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18. — That all and singular the premises are true and the Solicitors for the PLEADivns.
Promoters pray that on legal proof thereof being made Your Grace The Lord
Archbishop of Canterbury as Judge of this Court will be pleased to pronounce that the said Eight Keverend Edward by Divine permission Lord Bishop of Lincoln has offended against the Laws Statutes Constitutions and Canons Eccle- siastical of England in the particular matters hereinbefore alleged or in some one or more or all of ihem that Your Grace as such Judge will be further pleased to pass such Ecclesiastical sentence on the said Eight Eeverend Edward by Divine permission Lord Bishop of Lincoln as the nature of the offences proved and the exigency of the law demand. And that Your Grace as such Judge be further pleased to condemn the said Eight Eeverend Edward by Divine permission Lord Bishop of Lincoln in the costs made and to be made on the part and behalf of the said Ernest de Lacy Eead, William Brown, Felix Thomas Wilson and John Marshall the Promoters to this Cause and that the said Eight Eeverend Edward by Divine permission Lord Bishop of Lincoln be compelled to the due payment thereof.
Horace Davey, Q.C.
Thomas H. Tristram, Q.C, D.C.L.
W. 0. Danckwerts.
APPENDIX 3.
PEOTEST.
Before His Grace the Lord Archbishop of Canterbury. The Office of His Grace the Lord Archbishop of Canterbury promoted by
EENEST DE LACY EEAD, WILLIAM BEOWN, FELIX THOMAS WILSON, and JOHN MAESHALL,
V.
THE EIGHT EEVEEEND EDWAED LOED BISHOP OF LINCOLN.
The Nineteenth day of February in the year of our Lord One thousand eight
hundred and eighty-nine.
On which day Brooks and Jenkins referring to their Appearance under Protest for the Eight Eeverend Edward Lord Bishop of Lincoln in exten- sion of such their Protest alleged that the said Lord Bishop of Lincoln is ready to pay all due Iteverence and Obedience to His Grace the Lord Archbishop of Canterbury and to submit himself to his Metro political Jurisdiction so far and in such Form and Manner as is allowed and required by his Oath made in that behalf and by the Laws Canons and Constitutions Ecclesiastical of this Church and Eealni and of the Province of Canterbury But they said that there was no jurisdiction to cite and that the said Lord Bishop of Lincoln ought not to be cited to appear and answer in these Proceedings for the Eeasons following : — 1. — The said Citation docs not cite the said Lord Bishop of Liiicdhi to a])[iiAr
E 2
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ruurixa$. in «iny Court or in unv PriKHH-tliii ,'s wluTcMf tlio said Laws Canons and Coiistitii- tiiuis take Ci>f:niz:inro.
2. — Uy tlu< s;ud Laws Canons and Constitutions tlio said Lord Hisliop of liincolu is not Kmnd and ouijlit n^t to appear iH-fore or he triod by tho said Lord Arch- liialiop of Cantorbury s:ttinj» alono, or to appear before or be tried by tlic Vicar- (leneral of tho srtid Lord Archbisliop of Canterbury ; and the fact tliat tlie said Lord AR-hbisliop of Canterbury proixises to sit with Assessors docs not confer a juria^liction which lie would not otherwise have.
o. — By tho said Laws Canons and Constitutions the said Lord Bishop of liincoln jis a Bishop of the Province of Canterbury ouj^ht not to be tried for the Ollcnccs (if any) with whicli he is charged in these Proceeding's save by tlie said Lord Arch- bishop of Canterbury together with tlie other Bishops of tlie said Bruviuce his Cora- provincials assembled either in the Convocation of the said Province or otherwise. 4. — The Charges set forth in the Citation are not such Charges as by the said Laws Canons and Constitutions the said Lord Bisliop of Lincoln is bound or ought to answer or be tried for before or by any Court of Ecclesiastical Jurisdiction.
WiiKREFOUE they prayed that this their Protest might be sus- tained and that the Proceedings herein might be dismissed and that otherwise Ri-ht and Justice might be done. George II. Buot>KS. Walter G. F. Philumore.
Edgar F. Jenkins. F. El. Jeune.
A. B. Kemi'e.
ANSWER. In the Court ok His Grace the Lord Archbishop of Canterbury. The Office of His Grace the Lord Archbishop of Canterbury promoted by
EPvNKST DE LACY READ, WILLIAM BROWN, FKLIX THOMAS WILSON, and JOHN MARSHALL,
V.
THE RIGHT RKVEREND EDWARD LORD BISHOP OF LINCOLN.
The First day of March iu the year of our Lord One thousand eight hundred and
eighty-nine.
On which day Wainwright and Baillie referring to the extended Protest brought in by Brooks and Jenkins as Proctors for tiic Right Reverend Edward Lord Bishop of Lincoln and denying that His Grace the Lord Archbishop of Canterbury has no Metropolitical Juiisdiction to cite the said Lord Bishop of Lincoln before His Grace's Metropolitical Court duly constituted for tlie hearing of this cause expressly denied that the said Lord Bishop of Lincoln ought not to be cited to appear and answer on these proceedings for the reasons in the said extended Protest stated. And further denied — 1. — That the said citation did nut cite tlie said Lord Bishop of Lincoln {o
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appear in any Court or in any proceedings whereof the 'said Laws Canons and Pleadings. Constitutions talve cognizance as in the first paragi'aph of the said Extended Protest alleged.
2. — That by the said Laws Canons and Constitutions the said Lord Bishop of Lincoln is not bound and ought not to appear before or be tried by the said Lord Archbishop of Canterbury sitting alone or to appear before the Vicar-General of the said Lord Archbishop of Canterbury or that the fact that the said Lord Archbishop of Canterbury proposes to set with Assessors does not confer a juris- diction which he would not otherwise have as the second paragraph of the said Extended Protest alle':;ed.
3. — That by the said Laws Canons and Constitutions the said Lord Bishop of Lincoln as a Bishop of the Province of Canterbury ought not to be tried for the offences (if any) with which he is charged in these proceedings save by the said Lord Archbishop of Canterbury together with other Bishops of the said Province his Comprovincials assembled either in the Convocation of the said Province or otherwise as in the third paragraph of the said Extended Protest alleged.
4. — That the charges set forth in the Citation are not such charges as by the said Laws Canons and Constitutions the said Lord Bishop of Lincoln is bound or ought to answer or be tried for before or by any Court of Ecclesiastical Jurisdic- tion as in the fourth paragraph of the said Extended Protest alleged.
Wheeefore they prayed His Grace the Lord Archbishfip of Canterbury to reject the Prayer of the Proctors for the said Lord Bishop annexed to the said Extended Protest and prayed that the Proceedings herein might be continued and that the said Lord Bishop of Lincoln might be condemned in the costs of the Pro- moters occasioned by and incidental to the said Extended Protest and that otherwise llight and Justice might be done.
Amended by Order of the Vicar-General dated 1st March, 1889.
G. W. R. Wain'wright. T. J. Baillik.
CONCLUSION.
Before His Grace the Lord Archbishop of Canterbury.
Tlie Office of His Grace the Lord Archbishop of Canterbury pronictcd by
ERNEST DE LACY READ, WILLIAM BROWN, FELIX THOMAS WILSON, and JOHN MARSHALL,
V.
THE RIGHT REVEREND EDWARD LORD BISHOP OF LINCOLN.
On Friday the First day of March in the year of our Lord One thousand ci^lit hundred and eighty-nine.
Both Proctors alleged and prayed as btfore. Wliercupon the Vicar-Oeiicral concluded the Pleadings on tlie Protest- of llie
AlTHORITIBS.
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Proctor for the Ri^ht Reverend tlio Lord Bishop of Lincoln and assi^jned tho same for Informationa before His Grtxco tlie Lord Arolibishop of Caiitii\)uiy whensiH'ver.
G. W. W. W.MNWiur.iiT, Edoau V. .Tknkins,
Proctor for tlie Promoters. Proctor for the Lord
Bishop of Lincoln.
AUTIIOIUTIES CITED. APPENDIX 4.
AP. CSO. RECOGNITION OF THE GENERAL COUNCILS BY THE COUNCIL
OF HATFIELD.
ITcpc quoque sancta Synodiis suis literis addit : — " Susccpimus sanctas et universales quinque Syncxlos iieatorum et Deo acceptabilium patrum ; id est, qni in Nica-a conc^ro^ati fuerunt trecentorum decern et octo, contra Ariiim impii- simum et ejiisdem dogmata ; et in Constautinopoli centum quinquac;enta, contra vesaniam Macedonii et Eudoxii et eoruni dogmata ; et in Epheso prime ducentorum, contra nequissimum Nestoriam et (jusdcm dogmata; et in Chalce- done sexcentonim et triginta, contra Entychen et Nestoriiim, et eornm dogmata ; et iterum in Constantinopoli quinto congregati sunt concilio in tempore Justiniani minoris, contra Theodorum, et Theodoreti et Ibje epistolas et eonim dogmata contra Cyrillum." Et paulo post : " Et Synodum quai facta est in urbe Roma, in tempore Martini Papa? beatissimi, indictione octava, imperante Constantino piissimo anno nono, suscepimus." — Councils and Ecclesiastical Documents, Eaddan & Stubbs, Vol. 111., p. 142.
APPENDIX 5.
AD 787. RECOGNITION OF THE GENERAL COUNCILS BY SYNODS OF
NORTHERN AND SOUTHERN PROVINCES.
(See as to these — Councils and Ecclesiastical Documents, by Uaddan & Stubbs,
Vol. III., p. 447.)
I " Primo omnium admonentes, ut sancta et inviolata fides Niceni concili,
ab omnibus qui sacro cullui mancipantur, fideliter et firmiter teneatur, et omni anno in synodalibus convcntibus ab Episcopis singularum ecclesiarum presbyterii qui populiim erudire debent, de ipsa fide diligentissime examinrntur, ita ut Apostolicara fidera et universalem sex Synoflorum per Spiritum Sanctum pro- batam sicut tradita est nobis a sancta Romana Ecclesia, per omnia confiteantur, teneest et prajdicent : et si opportunum venerit, pro ea mori non pcrtimescant : et quoscunque sancte universalia concilia susceperunt, suscipiant, et quos ilia damnaverunt, eos et corde rejiciant, et condemnent "
4_ «« Quartus sormo, ut Episcopi diligcnti cura provideant, quo onmes
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canonici qui canonice vivaut. . . . Qua de re suademus, ut synodalia edicta Authorities,
universalium sex conciliorum cum decretis Pontificum Romanorum sa?pius
lectitentur, observentur, et juxta eorum exemplar Ecclesias status corrigatur, ut ue quid novi ab aliquibus introdiici permit tatur, ne sit schisma in Ecclesia Dei. . . ." — Iladdan & Stubhs, Vol. III., pp. 448, 450.
APPENDIX 6.
EECOGNITION OF THE GENERAL COUNCILS BY THE CANONS a.d. 970.
OF AELFRIC.
Canon XXXHL — "Quatuor Synodi erant pro vera fide adversus hjereticos, qui stulte loquebantur de sacra Trinitate, et salvatoris humanitate ; prima fuit Nic£eae, prouti antea memoravimus; et secunda fuit deinde Constantinopoli e centum quinquaginta episcopis, Sanctis Dei viris ; tertia fuit Epliesi, ubi ducenti ei)iscopi erant ; et quarta fuit Chalcedonii, ubi multaj centuriaj episcoporum erant ; et lii omnes unanimes fuerunt inter se in constitutione, quaj stabilita fuit Nica?ae, et reparavenmt quicquidde ea violatum fuit. Ha3 quatuor Synodi obser- vandaj sunt, prouti quatuor Christi libri in ecclesia Christi. Multai Syno U deinde congregabantur, sed quatuor illse sunt prrecipuje, quoniam extmxerunt ha^rcticas illas ddCtrinas, quos hferetici invenerunt ha?retice adversus Deum ; et ii etiam constituerunt cccksiasticum miuisterium."' — WilHns'' Cone, Vol. I., p. 254.
APPENDIX 7.
GENERAL COUNCIL OF CONSTANTINOPLE. a.d. 38L
Canon 6, — "If any one bring a private or personal accusation against a Bishop, as having been oppressed or injured by him, no regard sliall be had uf the person or religion of liim Avho brings the accusation: but if an ecclesiasiical crime be objected against the Bishop, then the peison ut' him who brings the accusation shall be considereil ; that so heretics and scliismatics may not accuse orthodox Bishoi'S ; and that they of the clergy or laity that stand condemned, or deposed, or excommunicated, may not accuse a Bishop till they are cleared from the crimes charged upon them ; and that, likewise, they who are themselves accused beforehand, be not allowed to accuse a Bishop or clergyman, till they have proved themselves to be innocent. An information against a Bishop must first be preferred before the Provincial Bishops, and if they be not sufficient to rectify n)attirs, then let it be brought before the Great Synnd of the Diocese ; and let not the informers be permitted to produce their allegations till they have obliged themselves in writing to some penalty equal [to what the Bishop, in case he be convicted shall incur] if it be made to appear that the information
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At TiioKiTiKS njiainst the Bishop \va< falso ami feij^ncil : luit if any one daro tnmblo tlio KiniH^ror's oars, or the toinporal juilioaturo-*, or a Ooneral Council, noi;lootin;j; tlio nisliojw of tlio Diiveso, lio shall hy no means be ulluweil to ^ivo inforniatiou, as biinj; one tliat throws conten»|it and reproach <ipon the Canons, and subverts tlio ccdesiiisticjU order." — Johnson's ViKlf Mintm, Vol. If., p. \2d, 4th I'Jd.
APPENDIX 8.
A.o 4:,i. OENEKAL COUNCIL OF CIIALCEDON.
Canon 1. — "We pronounce it to be fit and just that the Canons of the Holy Fathers made in every Synod to this present time be in full force."
Canon 9. — "If one clergjiiian have a controversy with another, k't him first lay it before his OAvn Bishop, or let it be tried by referees chosen by each ]iarty, with the consent of the Bishop. Let him that does otherwise be liable to Canonical censure. If a clergyman have a complaint against his own or another Bishop, let it be determined by a Provincial Synod : hut if a Bishop or clergyman have a dispute with his Metropolitan, let him apply himself to the Exarch of the Diocese, or to the Throne of Constantinople." — Johnsons Vade Mecum.
APPENDIX 9.
A.D. 341. COUNCIL OF ANTIOCH.
Canon 9. — " It behoves the Bishops in every Province to own him that presides in the Metropolis ; because the Mctro[)olis is a place of universal con- course ; therefore it is decreed that he have special honour paid him, and that the other Bishops do nothing extraordinary without him, according to the Ancient Canon which was in force [in the a^e of] our fathers. Let every Bishop have power over his own parish and the adjacent country to ordain priests and deacons, and determine everything with judgment; but let him do nothing else without the Bishop of the Metropolis, nor he without consent of the rest."
Canon 11. — "If any Priest or Deacon, being deposed by his Bishop, or any Bishop being deposed by the Synod, dare trouble the Emperor, he shall he incapable of pardon, or having his cause heard again ; for he ought to apply himself to a Great Synod, and to submit to their examination and judgment."
Canon 13. — " Let no B'shop go from one Province to another to ordain men to the dignity of the liturgy, though he have others with him, except he be invited by the letiers of the Metropolitan, and the Bishops that are with him, into whose Province he goes. All is null that is done by Bishops coming without invitation, and they are to be deposed by a Holy Synod."
Canon 14. — "If any Bishop, upon an information against him, be tried by the Biahops of the Province, and they cannot agree in their sentence, let the
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Metropolitan call others from some neighbouring Province, to determine the Authorities. controversy, together with the Provincial Bishops."
Canon 15. — " If any Bishop upon an accusation preferred against him be condemned by all the Bishops of the Province unanimously, he shall not have his cause heard over again by others, but the unanimous sentence of the Provincial Bishops shall stand." — Johnsoii's Vade Meciim.
APPENDIX 10.
APOSTOLIC CANONS. a.d. 250-350.
Canon 27. — " The Bishops of every Province ought to own him who is chief among them, and esteem him. as their head, and to do nothing extraordinary without his con'^ent ; but every one those things only which concern his own Parish, and the country subject to it. Nor let him [that is Chief Bishop] do anything [extraordinary] without the consent of all."
Canon 66.—" If a Bishop be accused by credible persons that are communicants, let him be cited by the Bishops, and if he appear and plead and be convicted, let sentence be passed ; but if he do not obey the summons, let him be cited by two Bishops a second time ; and if he do not then appear, a third time ; and if then he be guilty of contempt in not appearing let the Synod pronounce such a sentence against him as tliey think fit." — Johnson's Vade Mecum.
APPENDIX 11.
WINFEID, BISHOP OF LICHFIELD. a d. G73.
Afterwards came another Archbishop to Canterbury, who was called Theodore; a very good man and wise : and held his Synod with his Bishops and his clergy. There was Winfrid, Bishop of the Mercians, deprived of his Bishopric ; and Saxulf, Abbot, was there chosen Bishop; and Cuthbald, Monk of the same Minster, was chosen Abbot. This Synod was holden after Our Lord's Nativity, 673 winters. — Anglo-Saxon Chronicle (Eolh Edition), Vol. IL, p- 29.
APPENDIX 12.
WILFRID, BISHOP OF YORK. a.d. 078.
.... in Cantuaria rcgione portum sahitis Deo adjuvante invcnerunt. lUic autemArcliiepiscopo Bt-rthvaldo invento, Saucti [Wilfridi] Poiitifiiis nostri nuntii cum eo loquebantur. Qui eis spopondit mitigare judicia dura olim in Synudo statuta. . . . Denique post non multi temporis spatimn, Ethelredo amico suo docento, Sanctus Pontifex nostcr electos nuntios Padwinum Presbyterum et
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ArTiu>Knir!«. AI>b.\Uin, niiij;istruinque Alfridnm :\il Alfriilum ritra-Uinbrensium Ivt'-^ein,
sibiqiio untos cinisit^ . . . Qtiibiia lU'X, sicut consiliarii ejus jwrsiiascrunt, rc-
Rjxnulit : 0 fratres niilii nmlH> veiu-niliilis, jiotite i\ mo vnbisnu-t ipsia ncccssaria, vt t*g(> jimptor rovcrfuliam vo.stram donalK) vubis. l)e causa vcro WilfricU Domini vestri iiolito mc ab bi>c tlic iliutius fla<^ilarc. Quia ipuKl ante pranlc- ct'ssitrcs mi'i lu-gt'S, et Arcbitpiscopus, cum consiliariis suis ceusucrunt, ct qiicnl jKwU'a nns cum Arcbiopiscopo ab Apistolicc scile cmisso cum (unnibus i>eno l^ritaiinia? vcstra> j^cntis Pra,>sulibus juilicavjinus; boc, inqnam, quamdiu vixcro, jiro])ter Aix>atolioa3 sedis (ut dicitis) scripta nun^uam volo mutare. — Eddius, Vita S. Wil/ridi, Cap. I.V.-LVI., Gale. Scriptons AT., Vol. L, p. 83.
APPENDIX 13.
A.n, (".84. TL'NBERUT, BISHOP OF IIEXIIAM.
Congregata synodo sub pr»sentia re^is Ecgfridi juxta fluvium Alne, in loco qui ciicitur Twifurd, cui TliecKlorus aichiepiscopus pra^sidebat, 'luubcilito ab cpiscopatu dciH)sit(i, unianimo omnium consensu ad episcopatum IIau:ustaldendis ecclesije Cutbberht eligitiir. — Florentius Wigornensis (Ed. Thorpe 1848) p. 38.
APPENDIX 14.
A.v. 1075. WULSTAN, BISHOP OF WORCESTER.
Rex tandem "Wiilelmus de negotiis tractare disponena ecclc^iasticis, anno Domiui millesimo septuagesimo qninto, fecit apud Westmonasterium Synodum congregari, cui pnusidens Lamfrancus Cantuaiiensis Archiepi-scopus cum suis suflfraganeis, ca'pit corri;j,euda corrigere, clericis etiam ct monacbis lionestiorem Vivendi formam pradjerc; apud hunc Archiepiscopum beatus Wlstauus sim- plicitatis et illiteraturje accusatur, et quasi homo idiota, qui linguam Galliranam non noverat nee regiis consiliis interesse poterat, ipso rege consentiente et hoc dictaute, decemitur deponendus. Igitur Lamfrancus inter caitera concilii statuta virum Dei Wlstanum jubet ut baculum cum anulo resignaret. — -Matthew Paris, Chronica Maj'ora (Rolls Edition), Vol. IT., p. 40.
APPENDIX 15.
AD nCC. JOCELIX, BISHOP OF SALISBURY.
Episcopji et derus Cantuariensis Provincial ad Alexandram Papam. Minis qiioque gravibus superaddita sunt graviora. Quosdam namque fideles et faniiiiares domini nostri regis primarios regni proccres, regiis spccialiter assi.s-
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tentes secretis, in quorum manu consilia regis et regni negotia diriguntur, non Authouities.
citatos, non defensos, non (ut aiunt) culpje siije conscios, non convictos aut
confesses, excommunicationis iunodavit sententia, et excommunicates publice denuntiavit. Adjecit etiam lit venerabilem fratrem nostrum dominum Sares- bericnsem episcopimi absentem et indefensum, non confessum aut convictiim, sacerdotali i)riiis et episcopali suspenderet officio quam suspensionis ejus causa comprovincialium aut aliquorum etiam fuisset arbitrio comprobata. Si hie ita(]ue judiciorum ordo circa regem, circa regnum, tam pra^postere, ne dicamiis inordinate, processerit, quidnem consequi posse putabimus ? — Materials for History of Becket, Vol V., pp. 40.-7,
ThorruB Cantuariensi Archiepiscopo Nicolaus de Monte-Bothmagensi.
Eadnlfiis de Hospitali, veniens ab Anglia, dixit nobis quod episcopi convenientcs circa ft stum Sancti Joliannis appellaverunt contra vos ad Viri Galila^i, eo quod episcopum Sarisberieiisem absque eorum consilio suspendistis. — Materials for History of Becket, Vol. F.,j9. 421.
APPENDIX 16.
GODFREY, BISHOP OF ST. ASAPH. a.d. 1175.
"In ipso autem concilio" (^Council of Westminster under the presidency of Richard Archbishop of Canterbury) "clerici Ecclesite Sancti Asaph petierunt a Cantuariensi Archiepiscopo, ut in vi obediential pra3ciperet Godefrido Ecclesiaj Sancti Asaph Episcopo ad sedem Ecclesias sua? redire, cui prajfuit pontificali potenlia, vel ut prasdictus Archiepiscopus alium E[)iscopum loco ipsiiis Godefridi institueret. Ipse enim Godefridus Episcopatum suum deseruit, jiaupertate et Walensium iiifestatione compulsus. Veniensque in Angliam, a Christianissimo Rege Henrico benigne et honorifice susceptus est. Et tradidit ei Rex abbatiam Abendonia3 vacantem, in custociia, donee ad sedem propriam Uberum habaret regressum. Itaque prajfatus Cantuar. Archiepiscopus in ipso concilio ad in- stantiam j)ra3nominatorum clericorum, et admonitione Alexandri summi Pontificis, necnon et concilio venerabilium coepiscoporum suorum, convenit jam dictum Godefridum,ut in vi obedientiaj ad sedem propriam rediret, vel curam pastoralem, qufB sibi erat commissa, in manu ipsius libere et absolute resi;naret. Ipse vero Godefridus, sperans quod Abbatia de Abbedonia quai tradita fuerat ei ad custo- diendum posset sibi remanere, Episcopatum suum nullo cogcnte, resignavit in manum Cant. Archiepiscopi, et tradidit ei aimvdmn suum et baculum pastorak'm, et ipse Cantuar. privavit exmi concessi ordinis dignitate et loco, et s'atuit loco ipsius et consecravit Magistrum Adam in Episcopum Sancti Asajjh." — Haddan <fc Stubbs, Councils and Ecclesiastical Documents, Vol. L, p. 377, and Wilkiiis' Concil., Vol. I., p. 479 note.
ArrnoRiTiES.
A I.. ii:u\
( (!0 ) APrENVJX 17.
TltlAL OF RISIIOPS.
Cocxni- OF OxKORP. — Alii contra, quorum jurtibus assistebat H( iiricus "Wfntoiu'iisis (.'pisctipus, scilis Ainx-itolica' in Anjilia logatus, fiatcr regis HU'pliani, ut ante ilixi ; quern ncc fraterna noccssituilo, ncc jeiicuJi nietus, a vcro tunc txorbitarc cogobat. Sic jxirro diccliat : "Si ciiiscojii franiitcm justitiaj in aliquo *' transgrcdcrentur, non esse regis, sed canonum juilicium ; sine publico ct cccle- siastico concilio illos nulla jwssessione privari debuisse," — Malmesbury. Ilisloria Xoi-ella. lib. IF. § 21. (Eilition Ilanhj, 1840, Vol IL, p. 718.)
APPENDIX IS.
A.i>. 1457. The following extract from Lewis' Life of Peacock is the most mateiial of
those cited : —
" However this be, we are told that our Bishoj/s opinions wliich he had pro- pagated among the common people, by publishing them in English, coming to the ears of those men who were the more valiant champions of the faith, and bolder soldiers of the ecclesiastical courts, they resolved to nip this plague in the bud, and provide themselves of such a remedy as might effectually stop the mouth of him who uttered such ]ierverse things, and cut off his hand, who wrote tilings not only to be suspected, but which deserved to be burnt. That going therefore to the Archbishop, the solid hinge and stout pillar of the Church of England, they bi sought him that for the preservation of the faith, now in danger of being sunk, his Grace would cause the Bishop to be cited, and appoint him the da}', hour, and place to appear be'bre him to answer those things which should be objected to him in a cause of faith.
"The Archbishop, to satisfy the importunity of these Doctors, &c., ordered the Bishop to be cited to appear before him and to bring with him the books he had written and published, against which exceptions had been taken, so that they might be examined according to a decree made and promulgated some time before." Sect. 21, p. 147.
" This citation of our Bishop to appear before the Archbishop and jiroduce the books he had written, in order to their being examined as above said, soon made a great noise ; and it was presently published in the pulpits by such of the clergy as were prejudiced against the Bishop, at Paul's Cross and elsewhere, that Lis lordship had written in the said books certain conclusions contrary to the orthodox faith, and did pertinaciously hold and defend them. Of this the P.ishop seems to have complained to the Archbishop, as very injurious to his state and good fame, and an immense grievance of himself and his opinions. The Arch- hishop, therefore, issued forth his mandate at his manor of Lambeth, October 22, 1457, and directed it " to all and singular persons, vicars, chaplains, curates, and not curates, clerks, and learned men whomsoever, throughout the Province of
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Canterbury, commanding and enjoining them publicly and generally to admonish Authorities.
all and singular who would oppose anything against the conclusions of the said
Bishop, had or contained in his books or writings, freely to appear before the Archbishop or his commissaries on the 20th day after this nomination made to them by them, wheresoever the Archbishop, &c., should then be, in the city, diocese, or Province of Canterbury, sufficiently and fully to propose and allege in writing whatever heretical or erroneous things thej^ have to say or propose against the conclusions of this kind in the books aforesaid, that they do not presume in any manner out of court to assert, judge, or preach anything to the prejudice or scandal of the aforesaid Lord Bishop Reynold, whilst this affair of the Bishop and discussion of his books and conclusions before hiai or his commissaries was depending and unfinished."
" This wai not only an act of justice to the Bishop ; but what was necessary to preserve the power and authority of the Archbishop's Court ; since if the credit and reputation of men must fall or be condemned by the malice and prejudice of private persons, without their having any opportunity to answer their accusers and defend themselves, as the most innocent cannot possibly be safe, so it must make the judgments or legal sentences of Courts of little weight or authority when private persons thus presume to take the cause out of their superiors' hands and prejudge for them." Sect. 23, p. 148.
APPENDIX 19.
CHENEY, BISHOP OF GLOUCESTER.
Notice was taken at this third session (which was April 23), that Richard, Bishop of Gloucester, had not appeared, neither in person nor proxy, in any of these three sessions; and that he had been that day in Westminster, and was out of town without any leave asked of the President (whatever was the cause, whether, being popishly affected in some things, he liked not what was to be done this Convocation, or whether he cared not to subscribed to the XXXIX. Articles, which was to be done by all the members of the Synod, is nnknown). This was taken into consideration by the House; and having been summoned, and not appearing neither in person nor jToxy, and before declared contumacious for absence, it was unanimously agreed by the Archbishop and his brethren, that he ought to be excommunicated ; and consequently the Archbishop read the sentence of excommunication against him. The form whereof may be found in the Appendix. — Strypes Parker, Vol. II., p. 52.
THE APPi'NDIX, No. LXL
Tltefonn of tJic Excommunication of the Bishop of Gloucenlcr, pronounced in/ the Archbishop in Synod, anno 1571.
In Dei nomine Amen. Cum Nos Mattha^us iirovidciitia Divina Cantuaricn. Archiepiscopus, totius Angliae Primus et MetroiHiJilaiius, rite et legitime pro- cedens, reverendum in Christo Patrem Doni. Richardiim Gldcestren. E|iisc(i[ium, ac Commendatarium Episcopatus Bristolien., alias propter suani contumaciam cL
A.D. 157J.
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AiTiioRiTiKs, maiiifostum contomptuin in Hi'ii coiiii>;irtinlo coram iiobis, iunimc jhm- sc ii('(iiic jut rri>ciiratt>n>in suum, in liao pra-sfiiti ("imvcoiitioiio sivo sacra Syiiodo iiruviiiciali in ilonio capltulari ccclcsijii c^ithctlralis 1). Taiili Lomlnn, tirtio iHo pra'siMitis nu-nsia April, inclioata et ctlobrata, ac do dio in diem us(pu>ad iios diem et locum anitimiataet prorogrtta,juxta citationcmet monitiouem ultimamet pcremptoriam alias sibi ex parte nostra fact': proiumtiaverimus contumaccm, jKcnam contu- maci.T, sivc humoi. ad arbitrium m^strum rcservaudo; Nos Mattli.TUs Archie- jiiscopus antwlict. |H\niam contumacia* dicti Episcopi et Commcndatarii de con- sensu confratrum nostrorum nobiscum in liac pra'scnti Convocatione assidcntiuin, cxcjmmnnicavimns in liiis scriptis.
Lect. i>er pra'fatum revcrcndiss. Patrem D. Matthieum Arcliieinscopum Cant. in Cajx'Ua Ilogis llenrici VII. infra ccclesiam CoUegiatam D. Petri Wcstmon. XX° die MensLs Ai)ril., Anno Dom. 1571.
Concordat cum registro,
Inceiit, liegistrarius. — Strype's Parker, Vvl. III., p. 18'_*.
APPENDIX 20.
A.n. 1C40. GOODMAN, BISHOP OF GLOUCESTER.
Acta in superiore Domo Convocationis, incasptse decimo quarto die Aprilis, anno 1G40.
Ultima sessio.
Die Veneris 29°, viz. die mensis Mail, anno Domiui lG-10, inter boras. Sec, reverendissimus, &c., judicialiter sedens; prolocutor venit cum quibusdem aliis e coctu domus inferioris, et proposuit quendem canonem. Tunc, eo dimisso, habitoque tractatu inter reverendissimum patrem antcdictum et confratres sues su\^eT eodem canone, prolocutor cum toto ccetu domus inferioris pradictaj rever- tcbat ; et reverendissimus cum uuanimi consensu pradatorum et cleri Imjus sacra> Synodi dccrevit regiam majcstatem supplicandam fore, ut liber pubJicarum precum, in Latinum versus, reprimalur, prout in actu Synodico sequcnti con- tinetur, viz. : — " Discernimus insuper," &c. Deinde, leverendissimus, in pra;- scntiis dicti domiui prolocutoris, et totius coctus domus inferioris, protulit librum canonum in hac sacra synodo tractat. continentem septemdecim capitula canonum. Qnem reverendissimus in manibus suis tenens, cum domino prolocutore, alta et inttlligibili voce legebat. Quo jjerlecto, reverendissimus, et reverendi patres antedicti (excepto domino epit^copo Gloucestren. antedicto, subscribere pro temjiore denegan.) ac dominus prolocutor et totus ccetus doums inferioris aiite- dictaj, isto die comparentes, noniinibus suis et aliorum pro quibus constituti sunt consensum et assensum sues eisdem canonibus pra^stiterunt, et eorum nomine manibus suis jropriis eisdem respective subscripserunt. Et reverendissimus, inter hasce subscrijjtiones, interrogavit dictum domiuum ejiiscojjimi Glor.ccstren. an dictis canonibus assensimi suum pra-bere, et nomen subscribere velit ; idem douiinus episcopus resitondei.do dene^avit, Vnde revert nd;ssinius ])rimo, secundo et tertio, njonuit tundem domiuum episcopum ad subscribendum. Ipse refutavit,
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et sic ad sccundam et tcrtiam monilionem canouicam respondebat, nisi ad sub- Authorities.
scribendum negative, pctendo beneficium synodi. Tunc revercndissimus eundem
dominum episcopum Gloucestreu. ob contumaciam et inobedientiam suam bujiis- modi, ad ej^iscopatu siio pro parte sua deprivandum fore decrevit, ac monuit et jussit dominum Joliannem Lambe militem tunc pra3seutem, ad concipiendum sententiam deprivationis ; et ad vota et suffragia prtelatorum ad eundem efl'ectiim processit. Post aliquem processum hujusmodi liabitum, major pars prtelatorum vota sua deprivationi dicti domini episcopi pra3buit. Tunc praafatus dominus episcopus obtulit ad scribendum, et de facto nomen suum dicto libro apposuit. Quibus sic gestis, dictoque ruverendo patre interrogate per reverendissimum ad rogatum prolocutoris et aliorum e coetu domus inferioris, ac ipse subscripsit voluntarie et ex animo, sine a^quivocatiune, auimi evasione, et secreta reservatione ; respondebat, quod ipse subscripsit, et aliter denegavit respondere. Deinde dimisso domino prolocutore cum toto coetu domus inferioris, reverendissimus et confratres sui prajdicti super istud grave scandalum, ecclesiai Anglicanje, et huic sacr^e Synodo per dictum dominum episcopum illatum inter se tractarunt, et unani- miter vota sua dederunt pro suspensione ejusdem episcopi ab officio et beneficiis suis ecclesiasticis. Et mox dominus prolocutor cum toto ca?tu domus inferioris revertebat, ac nomine suo et totius coetus prjedicti, dixit se et totum ccetum domus suae, citra istud scandalum ecclesise huic Anglicauaj et Synodo sacra? pre dominum episcoj^um Gloucestr. illatum, tractasse, et vota sua et eorum suspen- sioni ejusdem episcopi ab ofticio et benefices praibuisse. Et ulterius dominus prolocutor, nomine suo et eorum, dominum archieijiscojjum imploravit, ut dictus dominus episcupus Gloucestr. ante recessum suum ab Lac civitate, juramentum in sexto canone in hac sacra Synodo tractat. meniioi at. pra^staret; et ut reverend- issimus interrogaret eundem dominum episcopum an ipse subscripsit bona fide sine a3quivocatione et animi evasione. Unde facta monitione dicto domino episcopo Gloucestren. quod non rccedat a civitate, donee juramentum prajdictum ei oblaturum pra^stiterit et subierit, reverendissimus cum consensu totius Synodi dictum dominum episcopum Gloucestren. ab officio et episcopatu suo Gloucestr. et ab omnibus beneficiis suis ecclcfeiasticis suspeudendum fore decrevit, donee serenissimo domino nostro regi et sacraj ecclesite ob magnum hujusmodi dedecus et grave scandalum illatum, satisfecerit. Eumque in scriptis suspendebat, prout in schedula sequenti continetur, viz. " In Dei nomine, Amen. Nos Gulielmus," &c. — Gibson''s Synodus Antjlicana (Ed. 1854), p. 195.
APPENDIX 21.
WOOD, LlSHOr OF COVENTIIY AND LICHFIELD. Extracted from the Registry of the Arches Court of Canterbury.
D Epus Coven et Licheii coii D" Hacket ofi"' Dui promot p Jacob con D" Epam Coven, etc.
IN DEI NOMINE AMEN. Cum coram Nobis lUchardo Lloyd Milite et Leguui Ductore Suirogalo veuerabilis et egregii viri Dni lioberti Wyseman Mililis
ic-is
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ArTMoRmEs. Pt Legum Dix;toris Almft> CurioD Cnntimriensis i\o Arclmbus Loivloil OflicialU
rriiu'ip:»lis li-gitimo cmistitnti. Qua>dnm Causa Dilnpiilntiouisi't Iluina? in Judicio
inter lu-vori'iuUiin in Christo Tatri'm ac Doniininn l\)niinuni Tiioniani porniissione tHvin;! Covefi ct Lichen Kpiun partem npMitoni ct iiuerelafi ex nna et Duniinutn Anilreain llackett Militcin Kxecutoroni Testanicnti Hevcrciuli in (liristu Patris nc Dni Dni Johannis ixTinissione diviua nuper Coven et Lichefi Episcopi deft |>artem roam et querelal vertebatur et pemlcbat vcrtituicg adhuc et pendet (luoad prolatiouem seuteutiaj nostra* definitivai indecisa Partibus jx-a'diclis per earuni PriKTires coram Xobis in Judicio Itime comparentibus Partefp pra'fivti Kcvercndi Patris ac Dni Dni Tlioma> perniissione divinaCovcil et Lichefi Episcopi just itiam
fieri pro parte sua Parte vcro
p'fati Dni Andreas Hacl^ett Justitiam
etiam pro jiarte sua instanter respe postulafi et peten Cumcg etiam quadchim Negotium Officii coram Nobis in Judicio inter Pliilippum Jacob Gefi partem idem Negotium promoventem ex uiia et p'fatum Eeverendum Patrem Thomam permissione divina Coveu ct Lichen Epum partem contra quam idem Negotium promovetur, vertebatur et pendebat vertiturcg adhuc et pendet quoad prolatiouem scfiia; nostra? Definitiva- indecisum Partibus jira'diciis per earum Procures coram Nobis in Judicio Itimc comparentibus Partcfg i)'f.iti Philipii Jacob pnjinotoris
Officii pra'dict Sententiara fieri
pro parte sua, Parte vero prajfati Reverend! in Christo ac Domini Domini Thomie permissione divina Coven et Lichen Episcojii justitiam .... etiam pro parte sua instanter postulaii et peteii Ad nostra) Sentential sive nostri finalis decreti prolatiunem in causis sive Negotiis preit feientl sic duximus proceden3 fore et procedimus in hunc qui soquitur modum. Quia in Processu prsedictaj Causa Dilapidationis et ruin* invenimus Eandem fuisse P Partes in eadem, comissam et relatam Arbitrio Peverendorum in Christo Patrum ac Dominorum Henrici ] ermissione divina Londifi Episcopi ac Willimi permisse divini Petriburgeii Ej iscopi Aibitrorum hincinde electorum per eos audiend ct terminanS, pTout in Actis hujns Curiae Tenoris sequentis viz Die Sabbathi Si'ptimo die Junii Anno Domini 1684° coram vefdi viro Domino Pichardo Lloyd ^lilite et Legum Doctore Surrogate venerabilis et egregii viri Domini Roberti "Wyseman Militis et Legum Doctoris Alma* Curiaa Cantuaf de Archubus London Officialis principalis hgitimeconstituti in Camera dicti Dni Richardi Lloyd infra Hospitium Duminorum Advocatorum London situat p'sente Thoma Tyllolt Notario Publico. Dominus Episcopus Lichen et Coven con Dominum HacketL in causa Dilapidationis Francklyn Exton. Quibus die et loco comparuerunt fiersonair dictus Reverendus in Christo Pater ac Dnmiims Dominus Thomas I ermissione divina Lichen et Coven Epus et dcus Dominus An^lreas Hackett Miles et expresse consensarunt ut hajc cau.ea sive Negotium referatur arbitrio Reverendi in Christo Patris ac Domini Dni Henrici permissioiie di>ina Londofi Epscopi et Reverendi in Christo Patris ac Dni Dni \Villinu permitisi'me divina Petriburgen Episcoj'i Arbitrorum hincinde indifferenter electorum iiereosaudiend et terniinanfl: in vel ante ViccssiniQ qua-tum diem mensis instantis Junii et ut interim omnis processus in hac causa sistatur, et ut hac causa continuetur in statu quo nunc ixistit us^ ad et in decern dii s ^wst finalem Auditionem istius causa; per dictcs Arbitros casu quo lidem Arbitri post auditionem ejusdem quoad decisioneni ct detemiinationcm eju.>-deni in imam et eandem sentcntiam non
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consenseriut, et partes prt'edicta3 respective consenserunt lit decisio et determinatio istius causaj qaas fuerit per dictos Arbitros facta et in Scriptis redacta et eorum mauibus respe subscripta p seutentiam delinitivam Dni Judicantis hujus Curia? ejusve Surrogati ferenS confirmetur et ratificetur Et ut nulla Appellatioex aliqua parte ab eadem facta interposita aut prosequita fuerit et ut onines partes prjedictfe eidem sentential consentiant et omni Appellationi ab cadem renuncient, Thos : Litch : et Co : Andr : Hackett. Ita testor Thos : Tylott Notarius Publicus, liquet et apparet. Et quia etiam invenimus in processu p''fati Negotii Officii dictum Ne- gotium fuisse per p'fatum Philijipum Jacob promotorem dicti officii cum consensu Reverendissimi in Christo Patris ac Dni Dni Wilhelmi providentia divina Cantuarien Archiepiscopi totius Angliaj Primatis et Metropolitani ac p dictum Keverendum Patrem Tliomam perinissione divina Coveii et Lichen Episcopum comissum et relatum arbitrio dictorum Reverendormn Patrum Henrici permissione divina London Episcopi ac Willimi eadem permissione Petriburgeii Episcopi Arbitrorum hincinde electorum per eos audienS et terminanS prout in Actis hujus Curije tenoris sequentis viz Die Jo vis Vicesimo secundo die mensis Maii Anno Domini 1684, inter horas tertiam et quintam Pomeridianas ejusdem diei coram venerabili et egregio viro Domino liichardo Lloyd Milite Legum Doctore Surrogato vonerabiles et egre;;ii viri Domini Roberti Wyseman Militis etiam et Legum Doctoris Almaj Curiaj Cant de Archubus Loudon Offilis priniis ttimecoustituti in Camera dicti Domini Richardi Lloyd infra HospitiumDominorum Advocatorum de Archubus Loudon situat p'sente Thoma Tyllott Notario Publico &c. officium Domini promotum per Philippum Jacob Geii contra Reverendum in Christo Patrem Thomam permissione divina Licheii et Coveii Episcopum Exton ffrancklin. Quibus die horis et loco comparuerunt pcrsnnalr dCus Philippus Jacob promotor officii venerabilis et egregii Viri Domini Roberti Wyseman Militis Legum Doctoris Domini Judicantis hujus Curia? in hoc Negotio et dictus Reverendus in Christo Pater Thomas permissione divina Lichen et Coveii Epus Et tunc dictus Philippus Jacob promotor antedictus tam nomine suo quam ex consensu Reverendissimi in Christo Patris ac Domini Domini Wilhelmi providentia divina Cantuariensis Archiepiscopi Et dictus Fieverendus in Christo Pater Dnus Thomas permissione divima Lichen et Coven Episcopus expresse consenserunt ut hoc Negotium referatur Arbitrio Reverendi in Christo Patris ac Domini Henrici permissione divina Londoii Episcopi et Reverendi in Christo Patris ac Dni Dni Willimi eadem permissione Episcopi Petriburgeii vel in ejus absentia Reverendi in Chiisto Patris ac Domini Domini Francisci e§,dem permissione Roffeii Episcopi Arbitrorum hincinde indifferenter elec- torum per eos audienS et terminanS in vel ante Vicesimum quartum diem Mensis Junii imediate proximo sequeutem et ut interim omnis processus in ha3c causa sistatur et ut hajc causa continuetur in statu quo nunc existit uscg ad et in decern dies post finalem auditionem istius Negotii per dictos Arbitros casu quo iidem Arbitri post auditionem ejusdem quoad dccisionem et determinationem ejusdem in unam et eandem sententiam non consenseriut Et dictus Phillippus Jacob tam nomine suo quam ex consensu dicti Reverendissimi in Christo Patiis ac Domini Domini Wilhelmi providentia divina Cautual Archiepiscopi, et dictus Reverendus in Christo Pater et Dc^minus Dominus Thomas permissione divina Lichen et Coven Epus respective ccn- censerunt ut decisio et determinatio istius causa? officio quae fuerit per dictos
F
Authorities.
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AiTnoRTTiES. Arliiti>>s facta et in Sori|>tis rodartft ot ooriiin manihus respc subscripta jHjr sontfiitiain lU'fmitivain lX)niini .ludicAiitia hujus Curia) cjusvo Surrogati ferondani cinitirinetiir et nitificetur et ut nulla apiK'llutio ox nliqua parte ab eailcin facta interivwita aut jirascquut« fiiorit et ut omncs partes pr.xHt eidem sententia) ciMistntiftiit et omni apjH'llacoi ab eailom rciuincient. Philip. Jacob. Tlio: Litcli et (a>: Ita testor Tho: Tyllott No'"' l'ut)cua. liipict et ap]>aret. Et quia ptcrca Inveninuis dictos Reverendos Patres per quoddain judicium Laudum Decisionem et Dctemiiuationf'ni conim manibus et sigillis respective .subscribt et sigillai et penes Regi strum hujus Curia) renianefi diet Causas sive Ncgotia infra Tern pus ei3 in dictis Actis limifatum audivisso et finaliter determinassc Cujus quidem Judicii Laudi et Decisionis sequitur et est talis, viz., To all Christian People to whonie this present writing indented shall come Henry Lord Bishop of London and William Lord Bishop of Peterborough, send greeting. Whereas divers con- troversies and debates in law hentoforo have been had, moved, and yet are dejx'nding between Doctor Thomas Wood Lord Bishop of Coventry and Litchfeild on the one part and S' Andrew Ilackett of MoxuU in the County of Warwicke Knight Executor of the Last Will and Testament of Doctor John Hackott late Bishop of Coventry and Litchfield on the other part And when as divers Articles have been exhibited by Philip Jacob of the Parish of Lambeth in the County of Surrey Gentleman in the Court of Arches against the said Dr. Thomas Wood the present Lord Bishop of Coventry and Litchfeild, And whereas the said Partyes (that is to say) Doctor Thomas Wood Lord Bishop of Coventry and Litchfeild S' Andrew Hackett Knight and Philip Jacob Gentleman for the appeasing and full determining of the said Controversies and Law suites have by consenting to two Acts of Court hereunto annexed voluntarily agreed and sub- mitted to the Arbitration Award Judgement and determination of the said Right Reverend Father in God Henry Lord Bishop of London and William Lord Bishop of Peterboruugh without any Appcale as appeares more at large from the said Acts of Court hereunto annexed And whereas the said Right Reverend ffathers in God Henry Lord Bishop of London and William Lord Bishop of Peterborough Arbitrators indifferently Chosen by the said Partyes have in pursuance of the said Acts of Court accepted of the Reference to them made and mett divers times in pursuance of it and heard the Learned Councell on all sides and between all the Partyes herein mentioned, Now know Yee That Wee Henry Lord Bishop of London and William Lord Bishop of Peterborough taking upon us the Charge of the said Reference arbitram' and Judgement betweene the said Partyes and having heard the sayings allegations and proofes of all the said partyes concerning the premisses and minding to sett them at unity and friendshipp concerning the same Doe thereupon make and publish this our Award Arbitrament and Judgment concerning the premisses in manner and forme following viz' First, imjjrimis Wee doe order and award that the said S' Andrew Hackett shall pay or cause to be well and truely payd the sumo of Fourteene Hundred Pounds of lawiuU monej' of England into the hands of S' Richard Lloyd Knight Doctor of Lawes and Surrogate to the ofBciall of the said Arches Court, or of sucb person as liis Grace the present Lord Archbishop of Canterbury shall direct within the space of three months next ensueing the ]>ublication of this Award and the Sentence of the Court thereupon for and towards the rebuilding the two Palaces or Mansion houses belonging to the
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Bishopricke of Coventry and Litchfeild (That is to say) For tlie rebuilding of the Authorities.
Palace in or neare Litchfeild Close and the Castle of Eccleshall which suffie soe
pay'd and deposited as aforesaid shall be layd out and expended for the uses aforesaid by the direction and approbation of the most Heverend ffatlier in God William by divine Providence the present Lord Arch Bishop of Canterbury his Grace or of the Lord Arch Bishop of Canterbury for the time being, Secondly Wee order and award that the said Dr. Thomas Wood the present Lord Bishop of Coventry and Litchfeild shall pay or ciuse to be pay'd the sume of Two thousand six hundred pounds of lawfuU money of England into the Hands of the said S' Eichard Lloj'd or of such person as his Grace the present Lord Arch Bishop of Canterbury shall direct and approve of & that within the space of three moneths next ensueing the publication of this award, and the sentence thereupon, for and towards the rebuilding his two Palaces (that is to say) The Palace of Litchfeild and the Castle of Eccleshall which sume soe pay'd and deposited shall be layd out and expended upon the rebuilding of the Palaces aforesaid by the directions and approbation of the present Lord Arch Bishop of Canterbury or of the Lord Arch Bishop of Canterbury for the time being. Thirdly Wee doe order and award that Doctor Thomas Wood the present Lord Bishop of Coventry and Litchfeild shall over and above the said suihe of Two thousand six hundred pounds pay all Costs and Charges that Philip Jacob the Plaint iflfe or promoter of the oiEce against him hath been att which Costs Wee tax at the sume of sixty five pounds lawfull money of England to be paid to the said Philip Jacob or his Procurator within the time aforesaid. Fourthly, Wee doe order and award that the said S' Andrew Hackett shall over and above the said sume of fourteen hundred pounds pay unto the said Dr. Thomas Wood Lord Bishop of Coventry and Litchfeild the some of One hundred and twenty pounds uf lawfull money of England for all costs and charges that he hath lay'd out and expended in the said Arches Court of Canterbury, within the time aforesaid. Fifthly. Wee doe further Judge and determine that Doctor Thomas Wood Lord Bishop of Coventry and Litchfeild bee suspended from his Episcopall Office and ffunction and the benefits jirofits and Pquisites of his Bishopricke untill such time as he the said Doctor Thomas Wood the present Bishop of Coventry and Litchfeild make a full and becoming submission to his Grace the present Lord Archbishop of Canterbury for his Absence from his Diocesse and the neglect of his duty and all other crimes alledged and proved against him in the Depositions read before us and exhibited in certaine Articles by Philip Jacob Gentleman against him the said Lord Bishop of Coventry and Litchfeild. Lastly Wee doe adjudge and determine that all the partyes mentioned in this Arbitration shall upon their compliance with, and submission to, and performance of this award, (and not otherwise) scale and deliver generall releases mutually to each other for the absolute and finall discharging of each other of all suites. Actions, Claimes, and all other differences and demands whatsoever from the beginning of the world untill the date of these presents. In Wittm sse whereof wee the Arbitrators chosen indifferently by and between the said partyes have hereunto putt our hands and scales this eighteenth day of Jnne in the six and thirtieth yeare of the reigne of our Sovercigne Lord Charles the Second of England Scotland ffrance and L-eland King defender of the ffaith &c. and in the yeare of our Lord 1684. n. London, William Peterborough. Signed scaled and delivered in the
F 2
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AmiORiTiES. l''!*<»co of Will: Truiiilnill TIk) : Tvllott No'". Piil)'. Idcirco Nos IviL'luiriUis
LU'Vil Milos I't Lcgmn DiK'tor Jiulcx nntctlictus i)orlectis i)raHlictis Actis nocnon
fra'fivt Jiulicio Lavulo Di>cisione vt torminationc j/fiitor Ut'vcrcudorum I'atrum
ftc l")omiiiorum Honrici jwnnissiono diviiia Lomlofi Episcopi et Willimi pcrniis-
sioiH" ilivina Pttriburgi'fi Ei>iscopi Arbitror pra>it Idem Judicium Laudum
IXvisioiu'in ot doU'rmiiiatiouom omniafg et siii;^nlac >ntenta in cisdem ad omiieni
juris etToctum mtifu-anuis et conlirmamus per lianc nram seiiteutiam definitivam
sive Ikx." uostrum liiuUo decrotQ cjuam sivo quod ferimus et promiil^ainus in his
Scriptis.
RICU : LLOYD
Sur:
Locta fiut liac fnia per Dnum Ric'^um Lloyd Surrum &c in Aula comuni infra hospitium ^norum Advocators &c. vicesimo Septimo Junii 1084° putibus Carolo Hedges Stcpbano Brice, fiishero Littleton Georgio Oxendcn ct Gcorgio Bramston legum dcuribus Advocatis &c. et fl'rancisco Nixon Ko'bto Chapman Gixlfrido Lee Jotiu Miller et Jo'he Lovell noriis i)ublcis peuribus &;c.
[Endorsed] Dnus Epus Lichen cou Duum llackcttet ofliciuin Dni pmot Jacob.
SeuteC.
27 Junii, 1G84°.
APPENDIX 22.
RACKET, BISHOP OF DOWN AND CONNOR. A.D. t)Ji. j^ jgy2 Thomas Hacket, a native of England, but a graduate of Dublin,
beneficed in Hertfordshire, and a chajilain of King Charles II. had been promoted to the diocese of Down & Connor. But for the twenty succeeding years he had been notoriously negligent of his pastoral office, and for the most part absent from his sphere of duty, and resident in England. His diocese suffered the natural consequences of his absence and neglect, in the deteriorated condition of his clergy. A dis^wsition apjiears to have at one time existed, in a quarter not distinctly indicated, to extend an unmerited and unbecoming indulgence to this delinquency. This is intimated in the answer to a letter of congratulation from Primate Boyle, on the elevation of Dr. Tillotson to the archbishoprick of Canter- bury, wherein the archbishop says, " As to your former letter, dated three days before, concerning a coadjutor for the bishopric of Down, I never heard the least syllable of it : and, if any such were designed, I would oppose it to my power, as an example of very ill consequences. I think it much fitter to have the bishopric made void, for the bishop's scandalous neglect of his charge."
This letter is dated June 11, 1601. But notwithstanding the decided language of Archbishop Tillotson, and the evident proj^riety and urgency of the intended proceeding, two years and a half elapsed before any movement was made in the affair. Then, however, a royal commission was issued, Dec. 19, 1603, addressed to the Bishops of Meath, Dromore, and Derry, for inquiring into his alleged neglect : and the commissioners, or any two of them, were empowered by the king and queen to " exercise all manner of jurisdictions, privileges, and pre- eminences, touching any spiritual or ecclesiastical jurisdiction in the diocese of
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Down and Connor, and to visit and reform all errors, abuses, offences, contempts, Authorities.
and enormities, committed or peiTQitted by the said Bishop Hackett, or any of the
clergy in the said diocese." Wiseman, bishop of Dromore, was prevented by bad health from acting. But the commission was executed by Dopping, bishop of Meath, and King, bishop of Derry, who, on the 13th of March, 1694, suspended him from the exercise of his office ; and on the 21st of the same month deprived him for simony in conferring ecclesiastical benefices, and for other grievous enormities committed in the exercise of his jurisdiction. — ManVs History of the Church of Ireland, Vol. II., pjo. 41, 42.
APPENDIX 23.
BINGHAM'S OPINION.
" But here I must observe that this power of Metropolitans was not arbitrary ; for though no Bishop was to be elected or advanced without their consent, yet they had no negative voice in the matter, but were to be determined and con- cluded by the major part of the Provincial Synod. For so the Council of Aries decreed that it' there arose any doubt or hesitation betwixt the parties the Metro- politan should side with the greater number. And the Council of Nice to the same purpose : — If two or three, out of a contentious humour, shall oppose the common election, duly and regularly made according to the canons of the Church, in this case let the majority of voices prevail."
" Their great office was to preside over their provincial Bishops, and if any controversy arose among them to interpose their authority to end and decide them. As also having the accusations of others and complaint of iujury done them by their own Bishops, from whom there was liberty always to appeal to their Metropolitan. Thus, in Africa it was ordained by the Council of Melevis that if two Bishops disputed about the bounds of their dioceses the Metropolitan should appoint a committee of Bishops to hear and determine their controversy. If a presbyter or deacon was excommunicated by his own Bishop, the Council of Sardica allows him liberty to appeal to the Metropolitan of his province; or, if he were absent, to the Metroiwlitan of the next province, to desire a new hearing of his cause. In such cases as these the Metropolitan had three ways of pro- ceeding. Either, first, he was to appoint a sekct number of Bishops to be Judges, which was the practice of Africa, where such Judges were therefore called indices electi, and their number assigned to be twelve, if a Bishoj/s cause was to be tried before them ; or, secondly, he was to refer the matter to a provincial synod, which seems to have been the general practice, when those called the Apostolical canons were made ; one of which orders that when a Bishop is accused he shall be con- vened before a synod of Bishops; another says the Primate shall do nothing without the consent of all the other Bishops ; so concord will be preserved, and God will be glorified; and another, twice a year let there be a synod of Bish()i;s to examine the doctrines of religion and determine all ecclesiastical controvei'sies that mny happen ; but, thirdly, by the Justinian law, a Metropolitan has power to hear the cause hiniself, on appeal, with(;ut a syntnl; yet whetlicr he could
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AvTuoamES. proct^l so far as to depose a Bishop by his solo authority is qucstiom-il. Spaln- tcusis ixftvo some instancos of Bishops wlio were lU'posoil by their ML-troiKilitanH, bat for aught that npiK-ars it was done in a synoil ; and, whether it was or was not, matters not much ; for still, in all casis, by the same law of Justinian and the canons, there lay an ai'jieal from the Mctroix.litan to a provincial synod, of which he was only jirosiilent, or nuxicrator, and director of business in it." — Binghiints Antiquities of the Christian Church, lik. If., Ch. !(!, ss. 11, 1('>.
APPENDIX 24.
HOOKER'S OPINION.
" Archbishops were chief among Bishops, yet Archbisliops had not over Bishops that full authority which every Bishop had over his own particular clergy; Bishops were not subject unto their Archbishops as an Ordinary, by whom at all times tliey were to be judged, according to the maimer of inferior pastors, within the compass of each diocese, A liishop might susjiend, excommunicate, deiK)se, such as were of his own clergy without any Bishop's assistance ; not so an Archbishop the Bishops that were in his own province, above whom divers prerogatives were given him, howbeit no such authority and power as alone to be judge over them. For as a Bishop could not be ordained, so neither might he be judged by any one on'y Bishop, albeit that Bishop were his Metroixtlitan." — Ilooker's Ecclesiastical Polity, Bk. VII., Ch. 16, s. 7.
APPENDIX 25.
A.D. 1234. TRIAL OF BISHOPS.
De Denunciatoiubus Criminum.
Sint autcm in quolibet Dccanatu duo vel tres viri, Deum habentes pras oculis, qui excessus publicos Pra3latoruin, et aliorum Clericorum, ad mandatum Archi- episcopi, vel ejus Officialis, ipsis denuncient. — Constitution of Archbishop Edmund. LyndwooiTs Provinciale, Appendix, p. 30.
A.D. 1217. Ne PCENITENTIA INJUNGATUR SINE IiESTITUTIONE.
.... Sint etiam in quolil>et Decanatu duo vel tres viri Deum praj oculis habentes, qui excessus publicos Prajlatorum et aliorum Clericorum, ad mandatum Episcopi, vel ejus Officialium, ipsis denuncient. — Constitution of Bishop Poore of Salisbury, Spelmanris Concilia, Vol. II, p. 145.
A.D. 1220.
De Inquisitobibus.
Item in quolibet Decanatu, duo vel tres viii Deum prai oculis habentes sint, qui excessus publicos Pra'la;orum, Personarum, et aliorum Clericorum, ad
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mandatum Episcopi vel ejus Officialium ipsi denuncient, i^er quos ctiam public^ Authorities.
poenitentes de eodcm Decanatu ad clavem pocnitentiaj admittantur: et ad
pr£edictos Confessores in Ecclesia Dunelmensi constitutis trausmittantur cum litteris, genus et quantitatem peccati continentibus, in capite jejunii et alio tempore competenti. — Constitution of Bishop Eichard of Durham, Spelmann''s Concilia, Vol. II., p. 170.
Lyndwood's Commentary on the Constitution of Edmund is —
" Prajlatorum, sc. Episcoporum qui inquantum Suflfra^anei sunt, subjacent
imediate Archie[ iscopo, et eius officiali, et etiam officiales ipsorum Episcoporum
quod die ut legitur."
APPENDIX 26.
LUCY V. WATSON, BISHOP OF ST. DAVID'S. Dates of Proceedings (1).
1695, Aug. 23.— Citation issued.
„ Oct. 24. — Watson appears, but claims his privilege.
1696, Mar. 7. — Lucy petitions the House of Lords to refuse the privilege.
„ „ 20. — Lords reject the petition on Watson undertaking to waive his
privilege. „ April 2.— Articles. 1699,Feb.20. — Watson protests to the jurisdiction on the ground that the offences alleged are mostly temporal. Protest overruled. Appeal. „ Mar. 13. — Commission of Appeal issued. Easter Term. — Prohibition moved for on the grounds (1) that the case should have been brought in the Arches Court; (2) that the case is one of temporal cognizance. Kefused. App. 27, j^ost. „ June 8. — Delegates dismiss appeal. „ Aug. 3. — Sentence of deprivation. „ „ 5. — Appeal from sentence. „ „ 19. — Suspension, pendente lite. „ Nov. 23. — Watson resumes privilege.
„ Dec. 6. — House of Lords refuses leave to resume privilege. 1700, Jan. 29. — Prohibition moved for on the ground that the Archbishop had no jurisdiction to deprive. Refused. See App. 27, j^ost. „ Feb. 13. — Petition to Lords against refusal of Prohibition. Rejected. „ „ 16. — Appeal to delegates comes on for hearing, " The Council (sic) for the Bishop of St. David's, insisting that the Arch- bishop had not jurisdiction in this cause ; the Court having considered the arguments on both sides, and de- bated the matter, is unanimously of opinion that the Archbishop had, and this Court hath, jurisdiction in this cause, and doth order the Council to proceed in the same." — Delegates Assignation Book. (1) Compiled by A. 1$. Kempe, Esq.
(
)
AvTiiORiTTES. ITOO, FoV. 22. — Pelopatcs cimfinn sentence.
„ „ 22.— Potition for Writ of Error.
„ „ 25. — Writ of Krror sealed.
„ Mar. 2. — Writ «>f Error refused l)y Lords on tlie ground that none can
lie liroui^ht in cases of refusal of IVoliibition. „ ,, 11. — Motion in House of Lords for jK'tilion to Crown not to fill up the Bishojirick. Abandoned. Watson subsequently excommunicated and arrested for non-jiaynicnt of costs. 1702, Michaelmas. — Writ de excommunicato capiendo (piashcd.
Information of Intrusion exhibited against Watson in Ex- chequer. Judgment against him. Appeal to Exchequer Chamber. Judgment confirmed. 1701. — 5. — Writ of Error in House of Lords. Dismissed for want ol prosecution.
APPENDIX 21: PARTI.
1700. January.
EPISCOPUS ST. DAVID v. LUCY. (1)
A prohibition does not lie to the spiritual court, for proceeding contrary to the canon law. The right of deputation is incident to the right of visitation. S. C. Salk. 134.
An archbishop may by the common law deprive any of his suffragan bishops. 6. C. Salk. 134.
The same persons may be appointed commissioners' delegates upon an appeal from a definitive sentence in the spiritual court as were appointed on an appeal from an interlocutory decree.
A prohibition cannot in strictness be moved for until after the suggestion is entered on the roll. Semb. ace. 5 Mod. 435.
A mandamus does not lie to the spiritual court to admit allegations.
Error does not lie upon the refusal of a prohibition. S. C. Salk. 136.
The reason why a bisliop is a lord of parliament is because he holds his tempo- ralties by barony. Vide Co. Litt. 97 a. 70 b. 13th Ed. n. 2. 1 Bl. Com. 155, 156.
Pending the suit against the bishop of St. David's before the archbishop, he appealed to the delegates; and pending his appeal, he moved in B. li. Pasch. eleventh of this king, for a prohibitiim to be directed to the delegates upon divers suggestions, which prohibition was denied (2). After which the commissioners
1699.
(1) The following is the report of the proceedings in the Court of King's Bench, A.D. 1700, reported 1 Ld. Kaym. 539.
(2) The following is the material portion of the previous decision of the King's Bench (reported 1 Lord Raymond, 44") : —
The Bishop of St. David's c. Lucy.
Lucy promoted a suit ex officio, &c., before the Archbishop of Canterbury against the Bishop of St. David's upon several articles for simony and other of-
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delegates over-ruled his appeal, and the archbisliop pronounced sentence of Authorities.
deprivation against him ; from which sentence he appealed to the commis-
sioners delegates ; and seeing that they were of opinion to affirm the sentence, he moved by his counsel for a prohibition now to be granted by this court to the commissioners delegates, to stay their proceedings in the appeal from the sentence of the archbishop ; upon a suggestion, 1. 1'hat by the canon law the archbishop alone could not deprive a bishop ; and 2. That the delegates refused to admit his allegations ; and the counsel for the prohibition argued, that the archbishop had not any authority over his suffragan bishops ; that the bishops are lords of parliament, and so peers to the archbishop, and therefore he could not have authority over them, quia par in parem non agit ; that there are no instances of such proceedings, nor hath this point been determined in onr books;
fences. To which articles Dr. Thomas Watson, the Bishop of St. David's, put in his answer. And proof being offered on the part of the promoter, the bishop ap- pealed to Commissioners, delegates. And pending the appeal he moved in the King's Bench for a prohibition, upon a suggestion that the matters contained in the articles were of temporal conusance, &c. And at the beginning Sir Bartholomew Shower argued for the prohibition ; that it does not appear that the Bishop of St. David's was cited to appear in any court whereof the law takes notice ; for the citation is, that he should appear before the Arch- bishop of Canterbury, or his Vicar-General, in the hall of Lambeth House, to answer, &c., which is not any court whereof the law takes notice. For the archbishop has the same power over his suffragan bishops, as every bishop hath over the clergy of his diocese ; but no bishop can cite the clergy before himself, but in his Court. And, therefore, the citation ought to have been here, to appear in the Arches, or some other court of the archbishop, &c. But to this it was answered by Wright, King's Sergeant, that without doubt the archbishop had jurisdiction over all the clergy, as well bishops as others, within this province. And for that he cited the case of Dr. Wood, Bishop of Litchrield and Coventry, who in the year 1687 was sus- pended by Archbishop Sancroft for dilapi- dations, and the profits of the bishoprick were sequestered, and the episcopal palace was rebuilt out of them ; and he died under that sequestration. He cited also the case of Marmaduke Middleton, Bishop
of St. David's, who upon the 8th of May, in the year 1582 was suspended by the High Commissioners for misapplication and abuse of the charity of Brecknock (which is one of the crimes of which this bishop is accueed): Whitgift's Register, 177. And though that suspension was made by the High Commission Court, yet that will make no difFei'ence ; because the High Commissioners have not any new jurisdiction^ or greatei', than the arch- bishop by 1 Eliz. c. 1, s. 18. And, Holt, Chief Justice, said, that the admitting of that point of the jurisdiction to be dis- puted, would be to admit the disputing of fundamentals, which the counsel of the other side attempt to subvert, not duly considering the respect due to the Pri- mate and Metropolitan of England ; for the Archbishop of Canterbury has with- out doubt provincial jurisdiction over all his sufifragan bishops, which he may exer- cise in what place of the province it shall please him ; and it is not material to be in the Arches, no more than any other place ; for the Arches is only a pecu- liar, consisting of twelve parishes in Lon- don, exempt from the Bishop of London, where the Archbishop of Canterbury exer- cises his raetropolitical jurisdiction ; but he is not confioed to exercise it there. And the citation is here, to appear before the archbishop himself, or his vicar-gencral, who is an officer of whom the law takes notice ; for the vicar-general in the pro- vince is of the same nature as the chan- cellor in every particular diocese ; and the Dean of the Arches is the vicar-general of the archbishop in all the province.
( '4 )
ArTHORiTiES. luui thorcforo being ft matter of threat consequence, it ought to bo settled by
niiituri' ileliU-ration. That tlio (U'j>rivi\tions of bishops, whirh have been here-
tt>fon', huvo Ix'on by the ecclesiastical connuission, or in convocation, or by act of jmrliament ; ami therefore by J.ittltton^s rule, a. 108. Co. Litt, 81. o. h. if sucli a thin-; might have been done, it should be intended, that it would have been put in practice Insforo this time. That though the archbishop may visit and censure the bishoj^s, yet it does not ft)llo\v that he can deprive ; because deprivation docs not follow the visitatorial jKiwer, as a necessary consequence. That the law has provided for the temporalties, as 14 Ed. 3. st. 4 c. 'i. that their temporalties shall not Ix? seized into the king's hands, but upon lawful cause, aud judgment there- upon given according to the law of the land ; and 25 Ed, 3. st. 3. c 6. that their temporalties shall not be seized for a contempt ; and that in the case of the arch- bishop of York and the bishop of Durham, in Riley's Placita Parliumentaria 135. there is a distinction made between their temporal state and their eccle- siasticil; and tiie archbishops have no authority over them as to their temporal state ; and therefore since this sentence of deprivation takes away their temporal- ties from them, over which they have no jurisdiction, the king's bench will grant a prohibition, to examine into the jurisdiction of the archbishop, to the end that if he has not such jurisdiction, the bishop may not be deprived of his temporal- ties. Another objection was made, that the same commissioners, who were in the commission of delegates ufwu the appeal pro^Jter gravamen, were commis- sioners in the commission upon the apjieal to the merits, where the whole matter, as well the gravamen as the rest of the cause, might be urged ; and so they would be judges in the same cause which they had determined against the bishop upon the former apjieal, which was unreasonable. E contra, it was argued, by the attorney general and the other counsel for the promoter against the prohibition, that the suggestion for the prohibition was founded only upon the canon law, and not upon the common law or any act of parliament ; and therefore very proper before the delegates upon the appeal, but not any ground fur a prohibition. And as to the objection that the bishop is a lord of parliament, that is only in respect that he holds his temporalties by barony, which temporalties are annexed to his bishoprick, and therefore being deprived of the bishoprick, he will in con- sequence be deprived of the temporalties, and of his seat in parliament. There is not any other jurisdiction for such purpose, for the convocation is more properly a legislative than an executive authority. If the archbishop has no such authority, what is the meaning of the exce[ition in 23 Ikn. 8. c. 9. s. 3. that bishops may be cited out of their diocese ? The act as to clergymen in general was reasonable, because there is a jurisdiction within the diocese, to which they are subject ; but the exception was of necessity in case of bishops, because they were not subject to any other jurisdiction than that of the archbishop. Before the statute of 16 Car. 1. c. 11. which took away the high commission court, which statute is since confinncd by 13 Car. 2. st. 1. c. 12. they proceeded before the commissioners appointed by virtue of the power given to the queen, by 1 El. c. 1. and the bishops were deprived by them, because it was a more expe- ditious way of proceeding; but now by the said acts the old jurisdiction is restored, as it was upon 26 II. 8. c. 1. And also upon 29 Car. 2. c. 9. which takes away the writ de haeretico comburendo, there is a saving for the jurisdiction of archbishops and bishops, &c.
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Wright king's serjeant of the same side urged, that a power of deprivation was Authorities.
incident to the visitatorial power ; and the case in Ilyley 186, admitting the power
of the archhisliop in spiritual cases, it must follow of consequence, that he has a power of deprivation ; because deprivation is the punishment proper for some cases.
This matter was moved several times at the bar. And the whole court was of opinion, that the prohibition should not be granted. And as to the authority of the archbishop, Holt chief justice said, that there are archbishops, who have authority over their suffragan bishops ; and there are primates, who are superior to them. The archbishop of Spalata says in his book, that an archbishop has the same authority over his suflragan bishops, that the bishop has over his inferior clergy ; and though there may be a co-ordination jure divino, yet there is a sub- ordination jure ecclesiastico qua huraana ; not of necessity from the nature of their offices, but for convenience. And for what other purpose have archbishops been instituted by ecclesiastical constitutions ? The power of an archbishop was very great here in England anciently ; the same jurisdiction of supremacy as the patriarchs of Constantinople, &c. The pope used to call him, alter ius orbispapam, and he exercised the same jurisdiction with him. Theodore, who was archbishop soon after the first constitution, not more than the fourth, fifth, or sixth, of St, Austin, deprived Winifred bishop of York, for the said see was not then metropolitical, but subject to the archbishop of Canterbury ; and yet at the same time there was a council held ; and Beda commends Theodore for it. But after- wards in the time of Henry I. and king Stephen, the pope usurped the authority of the archbishops ; in exchange for which they became legati nati of the pope. See for this Roger Twisden de Schismate ; and that is the reason why this practice cannot be found to have been put in use for so long time ; for when the archbishop had divested himself of his supremacy, and the pope had gained all his jurisdic- tion, the bishops being created by the pope, and consequently having better interest at Bomf, at least as good as the archbishop, it was in vain to intermeddle. And if there are any instances found, of bishops who were deprived in the said time, it was where the archbishop had more interest with his holiness, and so the bishop perceiving it acquiesced. But at this day, by the Act of 24 H. 8. c. 12. this jurisdiction is restored. It was always admitted, that the archbishop had metropolitical jurisdiction, and the bishops swear canonical obedience to him ; and where there is a visitatorial power, there is no reason to question the power of deprivation; for the same superiority, which gives him power to pass ecclesiastical censures upon the bishops, will give him power to deprive, it being only a diflerent degree of punishment for a different degree of offence. This ajipcars upon the statutes 26 //. 8. c. 1. and 1 El. c. 1. where, notwithstanding that there is not one word of deprivation, but only to visit, repress, redress, reform, correct, and amend ; yet they have been construed to give a power of deprivation. And by virtue of the 26 n. 8. c. 1. Bonner was deprived. Dr. Burnett the bishop of Salisbury in his book of the reformation believes that Bonner was depiived because he had accepted letters patent of Henry 8. to the bishop ; but that cannot be a legal reason, for he being bishop before for his life, acceptance (1) of a patent durante beneplacito could not determine it. So the high commissioners, by virtue of the act of 1 El. c. 1, deprived ; and yet there is not one word of deprivation in the
(1) Vide Co. Litt. 16. b. 13th Ed. n. 2.
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AiTUOBtTiKS. saia not, but only visit, itr. as in the sai.l act of 2(5 //. S. c. 1. Aiul tlio reason,
that it is an inherent preroj^ative in llie kinj^, is but an ailditional reiuson; for it
is phiin, that k^foro the statute of Elizahth tiie king couM not have j^rantcil a Ct>nunissiou for nxlressiug ami reforuiinf? ecclesiastical matters, and therefore tho jH>\ver that they hati procoeiled from the said act ; for tho king exercises hia ixvlosiastical supremacy by his ecclesiastical judges, as he exercises his temporal by his temiKiral judges. And ho said, tliat he did not know any subordinate visitatorial iH>\ver in any case but tliat of an archdeacon, which is a subordinate jurisiliction, and for informing the bishop, and he is called oculm cjiiscoj'i. But where there is an unlin:itcd lower of visitation, there must be of consequence a jxtwer of deprivation. This jurisdiction of the archbishop has notice taken of it in acts of parliament. Because that the act of 16 Car. 1. c. 11. which took away the high commission court, was thought to have lessened the jurisdiction of archbisho[is and bishops ; therefore it was repealed quoad, by 13 Car. 2. st. 1. c. 12. And the act of 29 Car. 2. c. 9. which takes away the writ de hueretico comburendo, has a saving of the jurisdiction of the protestant archbishops and bishops. If issue was joined (as his brother Gould justice well observed) in a real action upon the deprivation of a bishop, to whom could the court write, unless to the archbishop? In case of deiirivation of a parson, the court writes to the bishop to certify. Then if the archbishop had such authority, as it is plain he had, by what law is he restrained ? Mention is made of an old canon of Antioch, but that was never received in England. And if tlie non-usage should be an argument against it, which proceeded from a particular reason, as appears before, it would also be a reason why bishops should never be depiivc'l at all, because no bishop was ever deprived from the time of IJenry II. until Henry VIII. and no other jurisdiction can be shewn, to which they are subject : for all the same objections may be made to the power of the convocation ; for a convocation has no power over a peer qua peer; but the objection will not prevail for tlieir peerage is but accessory, and they have their temporalties as they are bishops. And in ancient times there were abbotts, who were lords of parliament, and yet their visitors bad power to deprive them. So that if any ecclesiastical jurisdiction is allowed to be over them, this objection will fail. And in fact it signifies notlung, because their peerage is but grafted upon their being bishof s. And the notion of the deprivation of bishops by the convocation is new, and started by Sir Baiiholomew Shotver, and (by him) the convocation has not any such power : and if there was such power in the convocation, it is presumable that care would have been taken in the act of Henry 8. that there should be an appeal from them. Farther, it seems by the writ de hatretico comlurendo, F. N. B. 269. that what is done in convocation, is the act of the archbishop, and only ihe consent of the rest of the clergy in convocation. He agreed, that (1) the spiritual court has not any jurisdiction in case of freehold ; but in this case the freeliold follows the jier- son being under such capacity. lie agreed also, that the spiritual court cannot (2) examine institution after the induction, because that makes a plenarty; and therefore the declaring of institution to be void, would be avoiding a temporal act. But these instances are not like the present case. The reason of the case in Eyley was plainly because the archbishop punished him for matter in which the bishop of Durham acted in his temporal capacity as count jialatine of
(1) R. ace. ante 212. Str. 1013. Vide Com. Prohibition. F. 2. 2(1, Ed. vol. 4. p. 492.
(2) R. Ilob. 15.
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Dwham ; which appears by the question asked, whether the gaol was the gaol of Authobittes.
tlie county palatine ? and whether it had not always been delivered by lay people ?
And (by him) to question this authority of the archbishop, is to question the very foundations of the government. And Gould justice said, that in 2 H. 4. 10. a. where the ecclesiastical jurisdictions are enumerated, the account begins with archbishops. And it appears by our books, that bishops may be deprived for dilapidations, 11 Co. 49. b. 3 Inst. 204. 29 Ed. 3. 16. a. 2 H. 4. 3. b. And such deprivation seems to be by the archbishop ; for otherwise to whom should the court write ? For which reason it must be pleaded by whom it was done, as Bro Deposition, 5. The court cannot write to the convocation ; and it is strange, if the bishops are deprivable, that the law should place it at such a distance, as to refer it to the convocation. And in 1 Boll. Ahr. 882. 10 Vin. 509. O. pi. 1. Anselmus archbishop of Canterbury is said to have deprived several j^relates. And there is no case, where a person hath power of visitation, but he hath also power of deprivation, F. N. B. tit. Prohibition. But when there was such a summary way of proceeding before the high commission, it is no wonder if such a tedious iDroceeding before the archbishop was not used. But Holt chief justice said, that though he was fully satisfied in his opinion that the archbishop had such jurisdiction, yet he woidd not make that the ground of denying a jiro- hibition in this case. The matter of the suggestion is, that the archbishop is restrained by the canon law from proceeding, (fee, without assistance, &c. Now it must be, that the court take notice that the archbishop by the common law hath metropolitical jurisdiction, and for that purpose he was constituted ; that there are two in England, who are primates in their respective provinces ; and then they have sufficient jurisdiction, and being the judges, though perhaps by the canon law they ought to take other persons to their assistance, yet their pro- ceeding without such assistance cannot be a ground for a prohibition. If in fact the archbishop extended his jurisdiction farther than he could by the rules of the common law, that might be a ground for a prohibition ; but where all the autho- rity that he makes use of is no more than what the common law allows him ; but there are some ecclesiastical canons which restrain him from exercising the jurisdiction which he hath by the common law ; that is matter proper for the conusance of the delegates upon the appeal, but no ground to prohibit them from proceeding. And it is without precedent, to grant a prohibition to the ecclesias- tical court, because they proceed there contrary to the canons. And Gould justice said, that (1) if a tortious judgment be given, that is jDroper matter for appeal, and not for prohibition. And of that opinion lord Hobart is expressly. And as to the objection concerning the commissioners of the commission of delegates. Holt chief justice said, that they upon a second appeal could not determine the gravamen at another time. And if the said objection should be allowed, where their course is, upon allowing the gravamen to retain the cause, there the arch- bishop might make the same objection, that they were not proper persons to be judges for the bishop, because they had determined the gravamen against the archbishop, and so they should not proceed at all, it being but the reverse of the said objection. And he was of opinion, that being appointed judges by a new commission, it was well enough. And the prohibition was denied by the whole court. And Holt chief justice ordered the counsel for the bishop to enter their
(1) Vide ante, 449, and the cases there cited. [This refers to tlie first ajiplicatiou to the King's Bench.]
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ArTnonmKS. suii2;ostion u|xmi roconl, ami they would cMitor the reasons of tho denial of tlio
pmhibition. Autl Holt said, that if the other narty liad insisted upon it, thoy
could not have niovcil for a proliibition before their sujif^ostion was entered upon tho roll. Then Mr. MouUnjuc on behalf of the bishop moved tho court, that they would <jnint a maiidunnis lo tho coniniissioners delegates, to admit the bishop's alleijations. And he eom|»ared it to tho eases where tliey jirant man- damtists, to coraiK'l the granlinj^ of probates of wills and letters of admiuistration. But jyer Holt chief justice, the king's licnch cannot grant a mandamus to them, to comjx'l them to proceed according to their law. Indeed mandamuses arc grantablo to compel j^robatcs of wills, because it concerns temporal right; and to comjiel tho grant of letters of administration, because the statute directs to whom they shall be granted. But in the present case a mandamus was denied. Ex relatione m^ri Jacob.
Note ; that after this denial of the prohibition, the bishop of St. David's j>etitioned the lord chancellor Somers, to have a writ of error ujwn this denial of the prohibition, who having some doubt, whether it would lie or not, referred it to the attorney general ; who certified his opinion to be, that a writ of error would lie in this case. Upon which the suggestion was entered ujion record, and the denial of the prohibition ; and the writ of error was granted, and the whole record brought by the chief justice into parliament. And afterwards upon hearing of his opinion, the lords of parliament were of opinion, that a writ of error would not lie in this case. Note, that Holt chief justice told me, that if the lords had been of opinion, that the prohibition ought to have been granted, he never would have granted it.
APPENDIX 27 : PART 11 (1)
j^ P 1-02. LUCY V. BISHOP OF ST. DAVID'S.
QUEEN'S REMEMBRANCER MEMORANDA ROLL.
Michaelmas, 13 William III., mcix.
^Translation.']
l^Poriions in brackets are those cited to the Court.] BRECON
Of judgment for the Lady Queen Anne delivered up<jn a demurrer joined upon the information ex- hibited by the Attorney- General of the Lord the King apainst Thomas ^Vatson Professor of Sacred Theo- logy and others for intrusion into several messuages lands and tene- ments in Christs Colledge in the
Be it remembered that Edward Northcy Esquire Attorney-General of the Lord the King that now is who follows for the same Lord the King, pre- sent here in Court on the seventeenth day of
. . ^,, . . „ „ . .... November in this term, in his proi^er person gave ments in Chnsta Colledge in the I . i- i i o
County aforesaid parcel of the poa- { it to be understood and informed for the same
eeesions of the Bishopric of St. t i xi, Tr- mL i. i
- »-.-.. Lord the King, That whereas two messuages,
five hundred acres of land three hundred acres of meadow four hundred acres of pasture and five hundred acres of furze and heath lands with ap- purtenances lying and being in Christ Colledge
in the County of Brecon aforesaid, parcel of the lands and possessions of the (1) The following is a report of the proceedings in the Exchequer, a.d. 1702.
David's being in the bands uf the King by rea8<jn of the vacancy of the Episcopal S<-e Afurcsaid Aud of the judgment afore^aid aflfirmed by the Lord Keeper of the Great S<-al and the Lord Treasurer upon a writ of error.
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Bishopric of St. David's, on the first day of April in the twelfth year of the ArTHORixiES.
reign of the said Lord the now King and long before and always afterwards
and thitherto were in the hands and possession of the said Lord the now Kin^ and of right have been and ought to be, in right of his crown of England by reason of the vacancy of the Episcopal See of St. David's, the same see then and as yet being vacant, as more fully appears of record in very many Eecords, Kolls and Memoranda of this Exchequer. Which same Thomas Watson, Professor of Sacred Theology, Edward Gwynne, clerk, Thomas Morgan, clerk, and William Williams, gentleman, not reverencing the laws of the same Lord the now King but intending and designing the disinherison of the same Lord the now King in the premises with force and arms, etc. on the aforesaid first day of April in the twelfth year aforesaid entered intruded and made ingress in and upon the possession of the premises of the said Lord the now King and the issues and profits thereof coming, received and had to their own proper use and as yet receive and have by that trespass and intrusion, from the same first day of April in the twelfth year aforesaid and hitherto continue in contempt of the said Lord the now King and against his laws whereof the aforesaid Attorney- General of the said Lord the now King, for the same Lord the King, seeks the advice of the Court in the premises, and that the aforesaid Thomas Watson, Edward Gwynn, Thomas Morgan and William Williams, may come here to answer to the said Lord the King of and to the premises. Upon which it was agreed that the aforenamed Thomas Watson, Edward Gwynn, Thomas Morgan and William Williams should be attached by their bodies wheresoever, &c. to answer to the said Lord the King of and to the premises. And it is commanded the sheriff of the said County of Brecon that he attach them, the aforenamed Thomas Watson, Edward Gwynn, Thomas Morgan and William Williams, in form aforesaid. So, &c. in the Octaves of St. Hilary, at which day the sheriff did not return the writ, yet the aforesaid Thomas Watson, Edward Gwynn, clerk, Thomas Morgan, clerk, and William Williams, gentleman, at the same day came here, by John Thompson, their attorney, and pray a hearing of the information aforesaid, and it is read to them, &c. Which letters being heard and understood by them, they complain that they by colour of the premises are gravely vexed and inquieted, and this unjustly because by protesting that the information afore- said and the matters in the same contained are not sufiicient in the law, and they are not bound nor by law of the land are they held to answer thereupon protesting also that elsewhere and long before the exhibiting of this informa- tion, to wit, in Easter term in the twelfth year of the reign of the said Lord the King a like information was exhibited to the same Court of Exchequer of the Lord the King, here, by Sir Thomas Trevor, knight, then Attorney- General of the said Lord the King, on behalf of the same Lord the King, against them, the same Thomas Watson, Edward Gwynn, Thomas Morgan, and William Williams, now defendants, of and for the self same intrusion in and upon the possession of the same Lord the King of and in the self same tene- ments with appurtenances above specified and supposed to be made by the same Thomas Watson, Edward Gwynn, Thomas Morgan, and William Williams, on the same first day of April in the twelfth year abovesaid and continued from the same day to the day of the exhibiting of that former information in the self same words in manner and form as in this information
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AiTuoRiTiEs. aWn-e it is supiKiseil. And that the same Thomas Watson, Edward Gwynn,
Thomas Morgan and William Williams to the same former information then in
tlio sjimo Ciuirt duly appeared and pleailed at bar and the said then Attorney- CionenU for the said Li)rd the Kinj; made replication thereupon and the same Thomas Watson, Edward Gwynn, Thomas Morj;:ui and William Williams, then and now defendants, thereupon then rejoined, and the same Attorney-General for the same Lord the King, then to the same rejoinder demurred and so those parties then here put themselves upon the judgment of the same Court and imjvvrlance thereof was duly continued in the same Court from thence from term to term unto Tuesday the eighth day of July in the term of Holy Trinity last past, not determined, and at the same eighth day of July, in the same term the aforesaid Edward Xorthey, Estiuire, then Attorney-General of the now Lord the King (who followed for the same Lord the King), present in the same Court before the Barons of this Exchequer, in his proper person, said that he for the same Lord the King did not wish to prosecute further in the premises against the aforenamed Thomas Watson, Edward Gwynn, Thomas Morgan and William Williams. Therefore it was then considered by the same Barons that the aforesaid Thomas Watson, Edward Gwynn, Thomas Morgan and William Williams should then go thereof without a day, saving always the action of the Lord the King if otherwise, &c. as by the rolls, memoranda, and records of this Exchequer more fully appears. And nevertheless the same Attorney- General for the same Lord the King renewed that information against the same Thomas Watson, Edward Gwynn, Thomas Morgan, and William WiJliams so as is aforesaid in the like and the self same words as he exhibited and now follows with the former information (the name of same Attorney- General and the time of the exhibiting only excepted) whereof they complain by protesting that they are mightily and excessively grieved, vexed, and inquieted, [yet for plea to that information, now against them prosecuted, the same Thomas Watson, Edward Gwynn, Thomas Morgan, and William Williams as to the coming with force and arras or whatsoever is in contempt of the said Lord the now King they say that they are in no wise thereof guilty, and of this they put themselves upon the country and the aforesaid Edward Northey Esquire, Attorney-General of the said Lord the now King, for the said Lord the King, likewise. And as to the remainder of the trespass aforesaid to wit the entry, intrusion and ingress into the tenements aforesaid with appurtenances in the said information above specified and the aforesaid receiving of the issues and profits thereof, above supposed to be done, the same Thomas, Edward Gwynn, Thomas Morgan and William Williams, say that it is well and true that the same tenements with appurtenances were and are parcel of the lands and possessions of the aforesaid Bishopric of St. David's as by the same informa- tion above is alledged but the same Thomas, Edward Gwynn, Thomas Morgan and William Williams say that long before the aforesaid first day of April in the twelfth year abovesaid in which it is supposed that the intrusion aforesaid was made, to wit, on the twenty-sixth day of June in the third year of the reign of the Lord James the Second, late King of England, &c., at Christs Colledge aforesaid (the Episcopal See of St. David's aforesaid being then and before that vacant by the natural death of John Lloyd, Professor of Sacred Theology then last Bishop of that Bishopric, and by reason thereof the tempo-
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ralities of the Bame Bishopric then being in the hands and possession of the AcTHOBiTiKa. eaid late King) the same Thomas Watson, Professor of Sacred Theology, was in due manner elected, consecrated and made Bishop of that Bishopric and then and there became and was and as yet is, Bishop of St. David's.] And the same Thomas, being so Bishop of the said Bishopric of St, David's, the same late King James the Second by his letters patent sealed under the Great Seal of England, bearing date at Westminster on the first day of July in the above said third year of his reign (which the same Thomas, Edward Gwynn, Thomas Morgan, and William Williams, preferred here in Court) restored to the same Thomas, the aforesaid temporalities of the same Bishopric. And afterwards, to wit, on the twenty-third day of the same month of July in the abovesaid third year, the same Thomas was in due manner inducted, installed, and enthroned in the real, corporal, and actual possession of the same Bishopric, with all and singular, all its rights, members, and appurtenances (that is to say) at Christs Colledge aforesaid, by which the same Thomas long before the aforesaid time in which, &c. to wit on the same twenty-third day of July, in the abovesaid third year entered into the tenements aforesaid with appurtenances in the information aforesaid specified, parcel of the temporalities of the same Bishopric restored to him in form aforesaid, [and from thence and hitherto was and as yet is thereof seized in his demesne as of fee in right of that Bishopric and he in his own proper right as such Bishop, and the aforesaid Edward Gwynn, Thomas Morgan, and William Williams, as servants of the same Thomas, Bishop of St. David's, and by his command, received and had and as yet receive and have the issues and profits of the same tenements with appurtenances for the time aforesaid in the said information specified, as was and is well lawful to them, without that that on the aforesaid first day of April in the abovesaid twelfth year, or at any time after the same Thomas Watson was made Bishop of that Bishopric as is aforesaid, he vacated the aforesaid Episcopal See of St. David's, or it was or is vacant as by the information aforesaid above is supposed, all and singular which things the same Thomas Edward Gwynn, Thomas Morgan, and William Williams are prepared to verify as the Court, etc., whereof they pray judgment, and that they as to the premises and every of them may be dismissed from this Court, etc.] And the aforesaid Edward Northey, Attorney-General of the said Lord the King that now is, who follows for the same Lord the King, present here in Court at the same day in his proper person, protesting that the afore- said Thomas Watson, Edward Gwynn, Thomas Morgan, and William Williams entered, intruded and made ingress in and upon the possession of all the tem- poralities of the same Bishopric of the said Lord the King that now is, and received and had the issues and profits thereof coming to their own proper use, and protesting and not acknowledging anything in the plea of the aforesaid Thomas Watson, Edward Gwynn, Thomas Morgan, and WUliam Williams by them above pleaded, to be true in manner and form as the aforesaid Thomas Watson, Edward Gwynn, Thomas Morgan, and William Williams above alledge in pleading for the plea or replication, yet the same Attorney-General for the same Lord the King says that it is well and true that the aforesaid Thomas Watson on the aforesaid twenty-sixth day of June, in the third year of the reign of the said Lord James the second late King of England, etc., was elected, consecrated and made Bishop of the Bishopric of St. David's and then became
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ArnioiUTiBei. ami was Bishop of St. David's aforosaul, and that thcriMiiuMi tlie saino late Kin^
Jtvim's tlu> Soooiul b}' his letters patent restoreil to the said Thdmas Watson,
then Hishi>i> of St. David's aforesaid, tlio temporalities of tho said Risliopric in
manner and form as tho aforesaid Tliomas Watson, I'idward Qwynn, Thomas
Morj:an and William Williams above alledj^o in pleading. [But tho samo
Attorney-General of tho said Lord the now King for tho samo Lord tho King
further says that aftcrward.s to wit, on tho third day of tho month of August
in tho year of our Lord ono thousand six hundred and nincty-nino at Ciirists
Colledgc aforesaid in a certain cause or matter of correction instituted by virtue
of his office by a certain Robert Lucy Esquire moved before Tht>inas, by divine
providence then and as yet Archbishop of Canterbury, Primate and ^letropo-
litan of All England, against tho aforesaid Thomas Watson, then Bishop of
St. David's aforesaid, and then eulTragan of the Province of Canterbury, on
account of divers crimes or excesses committed by the aforesaid Thomas Bishop
of St. David's and especially tho crime of Simony, tho aforesaid Thomas Watson
was on account of simony then and there removed and deprived in lawful and due
manner those things being done which in that behalf of right were required by
the aforesaid Thomas, Archbishop of Canterbury from his honour, dignity and
place of Bishop of the Cathedral Church of St. David's and from the Bishopric of
St. David's aforesaid by definitive sentence of tho same Archbishop rightly and
canonically pronounced.] By reason whereof the temporalities of the said
Bishopric came to the hands of the said Lord the now King and were and as yet
ought to be in the hands of the said Lord the now King. And the aforesaid
Attorney-General, for the said Lord the now King, further says that afterwards,
to wit, on the twenty-second day of February in the year of our Lord last above
said, at ChristsCoUedge aforesaid upon the appeal of the aforesaid Thomas Watson
from the aforesaid definitive sentence the aforesaid sentence was by John, Earl
of Bridgewater, Thomas, Earl of Stamford, Ford, Earl of Tankerville, Lewis,
Lord Rockingham, Simon, by Divine permission Bishop of Ely, John, by the
same permission Bishop of Norwich, John by the same permission Bishop of
Bristol, James by the same permission Bishop of Lincoln, John, by the same
permission Bishop of Chichester, Sir George Treby, knight, then Chief Justice
of tho Bench of the said Lord the now King, Sir Edward Ward, knight, then
and as yet Chief Baron of the Exchequer of tho said Lord the now King, Sir
John Powell, knight, then one of the Justices of the Bench of the said Lord
the King, Sir Littleton Powys, knight, and Sir Henry Hatsell, knight, then two
Barons of the Exchequer aforesaid of the said Lord tho King, Sir Charles
Hedges, knight, Doctor of Laws, Judge, Lieutenant or President of the Supreme
Court of Admiralty of England, William King and Andoenus Wynne, Doctors
of Laws, Judges, Delegates in that behalf rightly and lawfully constituted and
• appointed by letters patent or of commission under the great seal of England,
bearing date at W^estminster on the nineteenth day of August, in the eleventh
year of the reign of the said Lord the now King, in that behalf in due manner
made, by their definitive sentence or final decree to all effect of right, then and
there confirmed and ratified. All and singular which things the aforesaid
Attorney-General of the said Lord the now King, for the said Lord the King,
is ready to verify as the Court, etc. and whereof he prays judgment and that
the aforesaid Thomas Watson, Edward Gwynn, Thomas Morgan and William
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Williams and every of them may be convicted of the entry, intrusion and Authorities.
ingress aforesaid. [And the aforesaid Thomas Watson (asserting that lie is as
yet Bishop of St. David's) and the aforesaid Edward Gwynn, Thomas Morgan and William Williams protesting that the same Thomas Watson in no lawful manner was convicted of any Simony nor thereof tried nor ever was thereof guilty nor of any other crime on account of which he or any Bishop ought or could lawfully be deprived or removed of or from his Bishopric, protesting also that the aforesaid replication or plea of the aforesaid Attorney-General for the said Lord the King above pleaded in replying, and the matters in the same contained are not sufficient in the law to convict the same Thomas Watson, Edward Gwynn, Thomas Morgan and William Williams of the premises in the information aforesaid specified for this cause (among others) that is to say because that replicatiun is expressly repugnant and contradictory to the aforesaid protestation thereof, and the matter next and immediately following thereupon. Yet for their plea the same Thomas Watson, Edward Gwynn, Thomas Morgan and William Williams, say that the same Thomas being Bishop of St. David's as is aforesaid, and the temporalities of that Bishopric in form aforesaid, being restored to him as they above alledged, and as the aforesaid now Attorney-General also above acknowledged, afterwards and before the promulgation of the sentence aforesaid of the aforesaid Arch- bishop, to wit, on the twelfth day of October in the seventh year of the reign of the said Lord the King William the Third of England, etc. a certain writ of the same Lord the King out of his Chancery (the same Chancery then being at Westminster aforesaid) issued, directed to the same Thomas Bishop of St. David's, by the name of the Eeverend Father in Christ, Thomas, Bishop of St. David's, by which same writ - reciting that — whereas the same Lord the King William, by the advice and assent of his Council for certain arduous and urgent matters concerning the same King, the estate and defence of his king- dom of England and the English Church, had ordained a certain Parliament of the same King to be held at his City of Westminster on the twenty- second day of November then next to come and therewith the same Thomas, Bishop of St. David's and with other Prelates Magnates and Nobles of his said Kingdom to hold conference and treaty — he commanded the same Bishop, firmly enjoining him by the faith and love by which he was held to the Lord the King, that considering the difficulty and imminent perils of the business and setting aside every excuse he should be personally] present on the said day and place with the same King and with the Prelates Magnates and Nobles aforesaid to treat about the said business and render his counsel. And this he, in nowise, should omit, as he loved the same King and his honour and the safety and defence of the Kingdom and Church aforesaid and the furtherance of the said business, warning the Dean and Chapter of his church of St. David's and the Archdeacons and all the clergy of his diocese, that the same Dean and Archdeacon in tlieir proper persons, and the said Chapter by one and the same Clergy by two fit proctors having severally full and suflicient power from the same chapter and clergy, should personally be present on the aforesaid day and place to consent to those things which should then and there happen to be ordained by the common counsel of the said kingdom (the divine clemency being favourable) ; which same writ, afterwards and before the said twenty-second day of Novem-
( HI )
AiTnoniTiE*. ^HT, to wit on tho first Aixy of tho samo month of Novombor in tho naid BCTcnth
yviXT, at Christs ColUnlgo iiforosaiil wi\s doHvoreil to tho Kiiino Thomas Watson
as Hisliop of St. DavUi's by virtuo of wliich writ tho solf saino Tlioinas Watson Rs Uishop of St. David's on the .'saiiio 22nd day of NoveinWr apitt'arcd and was present at Westminster aforesaid in the House of tho Lords of that rarliament there, among the Magnates and Nobles of this kingdom of Knghiud. And so among them was and continued as ono of tho Lords Spiritual in the same Parliament assembled during that session of that Parliament and by virtuo of peveral other like writs of tho same Lord tho King William tho Third directed by tho same Thomas Watson as Bishop of St. David's in form aforesaid, ho likewise appeared and was present in tho said House of Lords among the Magnates and Nobles aforesaid at several other Parliaments of tho same Lord the King, held at W^estminster. And with the same had treaty and rendered his counsel as one of tho Prelates and Lords Spiritual of those Parliaments upon the business aforesaid, according to tho tenor and exigency of those writs, as by the memoranda and records of Parliament remaining in tho same Uouso of Lords of the Parliament at Westminster aforesaid more fully appears of record, and is sufficiently evident. [Tho same Thomas Watson, Edward Gwynne, Thomas Morgan, and William Williams therefore say that neither by the law of the land of this kingdom of England nor by any other ecclesiastical right of the English Church, nor by any canons of the Holy Church, the aforesaid Thomas, Archbishop of Canterbury, had any jurisdiction authority or lawful power to remove and deprive the same Thomas VVatson, Bishop of St. David's and being one of the Lords Spiritual of Parliament (as is aforesaid) from his Bishoprick aforesaid, or from his honour, dignity, and place of Bishop, but he the paid Archbishop by his mere judgment and of his will wrongfully by bis definitive sentence on the aforesaid third day of August in the year of our Lord sixteen hundred and ninety-nine abovesaid, he adjudged the same Thomas Watson being Bishop of St. David's and a Spiritual Lord in Parliament (as is aforesaid) to be removed and deprived from his honour dignity and place of Bishop of the Cathedral Church of St. David's and from the Bishopric of St. David's aforesaid, and so that sentence was void and of no effect in law and not able to be ratified or confirmed in form aforesaid, and therefore the aforesaid confirmation and ratification of that sentence was also void invalid and of no effect in law], and this they are prepared to verify as the Court, etc. whereof as before they pray judgment and that they the same Thomas Watson Bishop of St. David's, Edward Gwynn, Tbonr.as Morgan and William \\ illiams, and every of them as to the premises may be dismissed from this Court etc. And the aforesaid Edward Northey, Attorney- General of the said Lord the King, that now is who follows for the same Lord the King, present here in Court on the same day in his proper person, for the same Lord the King, says that the aforesaid Thomas Watson, Edward Gwynn, Thomas Morgan and William Williams, above jdeaded in rejoining and the matters in the same contained are not sufiicient in the law to which the same Attorney-General of the said Lord the King is not bound nor by the law of the land is held for the same Lord the King in any manner to answer and for reasons of a demurrer the aforesaid Attorney- General shews and demonstrates here in Court these following reasons, because the rejoinder of the aforesaid Thomas Watson Edward Gwynn Thomas Morgan
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and William Williams is-crafty and uncertain and lacks form and has departed Authobities.
from their former plea and because the rejoinder aforesaid does not contain matter '
of fact nor answer to the facts in the replication of the same Attorney-General contained, but is a verification of the law upon fact against the law because [it sufficiently appears to the Court here that the aforesaid 'I'homas Archbishop of Canterbury had jurisdiction authority and lawful power to remove and de- prive the same Thomas Watson from the Bishopric of St. David's in manner and form in the aforesaid Rei^lication of the same Attorney-General above contained.] All and singular which things the aforesaid Attorney-General for the said Lord the King is ready to verify, whereof the aforesaid Attorney-General for the said Lord the King as above prays judgment. And the same Thomas Watson Edward Gwynn Thomas Morgan and William Williams and every of them may be convicted of the entry intrusion and ingress aforesaid, &c. And the afore- said Thomas Watson Edward Gwynne Thomas Morgan and William Williams (of whom the said Attorney-General of the now Lord the King does not show or demonstrate any thing or any things in which or wherefore the aforesaid rejoinder of the same Thomas Watson Edward Gwynn Thomas Morgan and William is crafty or uncertain or lacks form and of which the matter in the said rejoinder contained is sufiicient answer to the facts and matter in the replication of the said Attorney-General contained and newly assigned as the confession and avoidance thereof and in no wise has departed from their former plea because the removal and deprivation of the said Thomas Bishop of St. David's from the honour and dignity and his place of Bishop and from the Bishopric aforesaid are wholly new matters and before being alleged could not be answered, and the said rejoinder and every the like plea not concluded ought to be verified to the country) say that (the causes and objections afore- said notwithstanding) their plea aforesaid above pleaded in rejoining and the matter in the same contained are good and sufficient in the law, to the repli- cation aforesaid and to exonerate the same Thomas Watson Edward Gwynn Thomas Morgan and William, from the premises in the Information aforesaid specified against the said Lord the King which same matter they are ready to verify. And because the said Attorney-General of the now Lord the King did not deny that matter for the same Lord the King neither did he in anywise answer to it but wholly refused to admit that verification, the same Thomas Watson, Edward, Thomas Morgan, and William as before pray judgment, and that they and every of them concerning the premises may be dismissed from this Court, &c. Therefore to judgment. And because the Barons here wish to inform themselves of and in the premises before they give their judgment thereof, day is given here to the aforenamed Thomas Watson Edward Gwynne Thomas Morgan and William Williams in the same state as now until a day within the three weeks of Easter, to hear their judgment thereof. Because the same Barons thereof not yet, &c. Before which day the said Lord the King William the Third closed his last day, and the Lady the now Queen Anne succeeded the same Lord the late King William the Third to the rule of thia Kingdom and took upon her the rule of the same Kingdom. At which same three weeks of Easter the same Thomas Watson Edward Gwynn Thomas Morgan and William Williams came here as before. And because the Barona of the Exchequer of the said Lady the now Queen here wished further to inforni
( 86 )
Amn>RiTiB. themselves of nntl In tho premiaos beforo they give their Judgment thereof: a
further ihiy is given here to the nforenauicil Thoinns Watson Edward Gwynne
Thomas Mori;nn and William Williams, in the same state as now, unto the morrow of Holy Trinity to hear their judj^nient thereof. Because the same Barons thereof not yet <S:c. At which day the same Thomas Watson Kdward liwynno Thomas ^lorijan and William Williams came here as hefore. And Kvause tho barons here wished further to inform themselves of and in tho premises before they givo their judgment thereof day thereof is further given here to the aforenamed Thomas Watson Edward Gwynne Thomas Morgan and William Williams, in the same state as now, until a day within three weeks of St. Michael to hear their judgment thereof, because the same Barons thereof, not yet, (S:c. At which day the same Thomas Watson Edward Gwynne Thomaa Morgan and William Williams came here as before. And because the Barons here wished further to inform themselves of and in the premises before they give their judgment thereof day thereof is further given here to the aforenamed Thomas Watson Edward Gwynne Thomas Morgan and William Williams, in the same state as now, unto the Octaves of St. Hilary to hear their judgment thereof, because the same Barons not yet &c. At which day the same Thomas Watson Edward Gwynne Thomas Morgan and William Williams came here as before. And because the Barons here wished further to inform themselves of and iu the premises before they give their judgment thereof further day is given here to the aforenamed Thomas Watson Edward Gwynne Thomas Morgan and William Williams, in the same state as now, until a day within fifteen days of Easter, to hear their judgment thereof, because the same Barons thereof not yet, &c. At which day the same Thomas Watson Edward Gwynne Thomas Morgan and William Williams came here as before. And because the Barons here wished further to inform themselves of and in the premises before giving their judgment thereof, day thereof is further given here to the aforenamed Thomas Watson Edward Gwynne Thomas Morgan and William Williams in the same state as now unto the morrow of Holy Trinity to hear their judgment thereof, because the same Barons thereof not yet, &c. [At which day the same Thomas Watson Edward Gwynne Thomas Morgan and William Williams came here as before. And because the Barons here wished further to inform them- selves of and in the premises before they give their judgment thereof, a day thereof is further given here to the aforenamed Thomas Watson Edward Gwynne Thomas Morgan and William Williams, in the same state as now, unto a day within three weeks of St. Michael thereof, to hear their judgment thereof, because the same Barons not yet, &c. At which day the same Thomas Watson Edward Gwynne Thomas Morgan and William Williams came here as before. And the aforesaid Sir Edward Northey, Knight, now Attorney-General of the said now Lady the Queen, who follows for the same now Lady the Queen, present here in Court at the same day in his proper person, having relinquished the verification of the issue above joined to be tried by the country, says that he does not wish further to prosecute as regards the issue aforesaid for the said Lady the Queen against the aforesaid Thomas W^atson Edward Gwynne Thomas Morgan and William Williams.] Therefore it is considered by the Barons here that the aforesaid Thomas Watson Edward Gwynne Thomas Morgan and W iLliam Williams may thereof go without a day. [And as regards the aforesaid
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plea of the aforesaid Thomas Watson Edward Gwynne Thomas Morgan and Authorities.
William Williams by them above pleaded in rejoining whereof the aforesaid
Attorney- General and the aforesaid Thomas Watson Edward Gwynne Thomas Morgan and William Williams above put themselves upon the judgment of the Court, the same Attorney-General of the said Lady the Queen for the same Lady the Queen prays judgment. Whereupon the premises being viewed by the Barons here and mature deliberation being had thereupon between the same. Because it seems to the same Barons that the aforesaid plea of the aforesaid Thomas Watson Edward Gwynne Thomas Morgan and William Williams by them above pleaded by in rejoining and the matters contained in the same are not sufficient in the law to exonerate the same aforesaid Thomas Watson Edward Gwynne Thomas Morgan and William Williams from the entry intrusion and ingress aforesaid in the information aforesaid specified. It is considered by the same Barons that the aforesaid Thomas Watson Edward Gwynn Thomas Morgan and William Williams be convicted of the intrusion and entry aforesaid in the information aforesaid specified and that each of them be convicted and that they be and every of them removed from the possession of the aforesaid premises in the information specified. And that they the aforesaid Thomas Watson Edward Gwynn Thomas Morgan and William Williams be attached by their bodies wheresoever &c., to make a fine with the said Lady the Queen for the entry intrusion and ingress aforesaid, whereof they were convicted in form aforesaid, and it is commanded to the sheriff, &c.
Afterwards to wit, on the 24th day of November in the second year of the reign of the said Lady Queen Anne, the same Lady the Queen sent here her writ close under foot of the Great Seal of England, directed to the Treasurer and Barons of this Exchequer in these words : — To wit [writ set out].
[At which same 26th day of November the Most Noble Sir Nathan Wright, Knight, Lord Keeper of the Great Seal of England and Sidney Lord Godolphin Lord Treasurer of England came in their proper persons into the aforesaid Council Chamber next the Exchequer aforesaid called le Counsell Chamber and caused to come before them in the Chamber aforesaid the Eecord and process aforesaid with all things touching them and at the same day and place before the aforesaid Lord Keeper of the Great Seal and the Lord Treasurer came as well the aforesaid Thomas Watson professor of Sacred Theology Edward Wynne Thomas Morgan and William Williams as the aforesaid Sir Edward Northey Knight Attorney-General of the said Lady the Queen in their proper persons and the same Thomas Watson Edward Gwynne Thomas Morgan and William Williams forthwith say that in the Eecord and process aforesaid and also in the rendering of the judgment aforesaid there is an error in this — namely, that the judgment aforesaid was rendered for the aforesaid Lady the Queen against them the aforesaid Thomas Watson Edward Gwynne Thomas Morgan and William Williams where the judgment aforesaid ought to be rendered for the aforesaid Thomas Watson Edward Gwynne Thomas Morgan and William Williams against the aforesaid Lady the Queen Therefore there is manifestly an error in it And this the aforesaid Thomas Watson Edward Gwynne Thomas Morgan and William Williams are prepared to verify And they pray that the judgment aforesaid be reversed, annulled, and altogether held for nothing on account of the error aforesaid, and the other things being in the
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AiTHOKmEs. Rivonl and process aforesaid], and that they the same Thomas Watson, Edward
(.t\vyniu>, Thomai« MoF'jim, and William Williams may bo restored to all tho
thin>'s which thoy lost by reason of tho juil^ment aforesaid And the aforesaid Sir Edward Northcy, Knight, Attorney-Cieueral of tl>o said Lady the Queen — a hearing l>oing hatl of the Record and process aforesaid, also of tho error afore- said by tho aforesaid Thomas Watson, Edward Gwynno, Thomas Morgan, and William Williams — above assigned for tho same Lady the Queen, says that there is no error in the Record and process aforesaid, and in the rendering of the judgment aforesaid, and he prays for tho same Lady the Queen that tho Court of the Lady the Queen here may proceed to tho examination as well of the Record and process aforesaid as of the matters aforesaid above assigned for the error and that the judgment aforesaid bo affirmed in all things. And the aforesaid Thomas Watson, Edward Gwynne, Thomas Morgan and William Williams likewise pray. And because tho aforesaid Lord Keeper of the Great Seal and the Lord Treasurer wish to deliberate in the premises before further &c. a day is given as well to the aforesaid Thomas Watson, Edward Gwynno, Thomas Morgan and William Williams as to the aforesaid Attorney-General of the said Lady the Queen until Tuesday the 1st day of February in the Term of S. Hilary next to come in tho same state as now in the Chamber aforesaid. At which same 1st day of February aforesaid the Lord Keeper of the Great Seal and the Lord Treasurer did not come into the aforesaid Council Chamber next the Exchequer aforesaid called le Counsell Chamber but Sir Thomas Trevor knight Chief Justice of the Common Bench came at the same day into the Chamber aforesaid and was then and there present according to the form of the Statute in such case made and provided. And at the said day and place before the aforesaid Chief Justice came as well the aforesaid Thomas Watson, Edward Gwynne, Thomas Morgan and William Williams as the aforesaid Attorney-General of the said Lady the Queen in their proper persons and the aforesaid business and suit of errors is further adjourned by the aforesaid Chief Justice and continued by virtue of the Statute aforesaid until Tuesday the 16th day of !May in Easter Term next to come. And the same day is given here as well to the aforesaid Thomas Watson, Edward Gwynne, Thomas Morgan and William Williams as to the aforesaid Attorney-General of the said Lady the Queen in the same state as now in the Chamber aforesaid. At which same 16th day of May the aforesaid Lord Keeper of tho Great Seal and the Lord Treasurer came into the aforesaid Council Chamber next the Exchequer aforesaid called le Counsell Chamber and were then and there present according to the form of the Statute aforesaid and at the same day and place before the aforesaid Lord Keeper of the Great Seal and the Lord Treasurer came as well the afore- said Thomas Watson, Edward Gwynne, Thomas Morgan and AVilliam Williams as the aforesaid Attorney-General of the said Lady the Queen in their proper persons. And the aforesaid business and suit of errors is further adjourned by the aforesaid Lord Keeper of the Great Seal and the Lord Treasurer, and con- tinued by virtue of the statute aforesaid until Tuesday, the 27th day of June, in the Term of Holy Trinity next to come. And the same day is given here as well to the aforesaid Thomas Watson, Edward Gwynne, Thomas Morgan and William Williams as to the aforesaid Attorney-General of the said Lady the Queen in the same state as now in the Chamber aforesaid. At which same
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27th day of June the aforesaid Lord Keeper of the Great Seal of England and Authorities.
the Lord Treasurer of England did not come into the aforesaid Council Chamber
next the Exchequer aforesaid called le Counsell Chamber, nor did either of them come but the aforesaid Sir Thomas Trevor, Knight, Chief Justice of the said Lady the Queen of the Common Bench came at the same day in the chamber aforesaid and was then and there present according to the form of the statute aforesaid. And at the same day and place before the aforesaid Chief Justice came as well the aforesaid Thomas Watson, Edward Gwynne, Thomas Morgan and William Williams as the aforesaid Attorney-General of the said Lady the Queen in their proper persons and the aforesaid business and suit of errors is further adjourned by the same Chief Justice and continued by virtue of the statute aforesaid until Tuesday the 31st day of October in the Term of S. Michael next to come. And the same day is given here as well to the afore- said Thomas Watson, Edward Gwynne, Thomas Morgan and William Williams as to the aforesaid Attorney-General of the said Lady the Queen in the same state as now in the Chamber aforesaid. At which same 31st day of October the aforesaid Lord Keeper of the Great Seal of England and the Lord Treasurer of England did not come into the aforesaid Council Chamber next the Ex- chequer aforesaid called le Counsell Chamber, nor did either of them come but the aforesaid Sir Thomas Trevor, Knight, Chief Justice of the said Lady the Queen of the Common Bench came at the same day in the Chamber aforesaid and was then and there present according to the form of the Statute aforesaid, and at the same day and place, before the aforesaid Chief Justice, there came as well the aforenamed Thomas Watson, Edward Gwynne, Thomas Morgan, and William Williams, as the aforenamed Attorney-General of the said Lady the Queen, in their proper persons and the aforesaid business and suit of error was further adjourned by the aforenamed Chief Justice and continued by virtue of the statute aforesaid unto Tuesday the twenty-first day of November in the same term of St. Michael and the same day is given here as well to the afore- named Thomas Watson, Edward Gwynne, Thomas Morgan, and William Williams as to the aforenamed Attorney-General of the said Lady the Queen in the same state as now in the chamber aforesaid. [At which same twenty- first day of November the aforenamed Sir Nathan Wright, knight. Lord Keeper of the Great Seal of England, and Sidney Lord Godol[ihin, Lord Treasurer of England, in the aforesaid Council Chambers next the Exchequer aforesaid called le Counsell Chamber, came and were then and there present according to the form of the statute aforesaid, and at the same day and place before the aforenamed Lord Keeper of the Great Seal of England, and the Lord Treasurer came as well the aforenamed Thomas Watson, Edward Gwynne, Thomas Morgan and William Williams as the aforenamed Attorney-General of the said Lady the Queen in their proper persons. Whereupon the premises being viewed by the same Lord Keeper of the Great Seal of England and the Lord Treasurer, having taken to themselves Sir John Ilolt Knight Chief Jus- tice of the said Lady the Queen assigned to hold pleas before the Queen herself and the aforenamed Sir Thomas Trevor, Knight, Chief Justice of the Common Bench of the said Lady the Queen, and being called before the aforenamed Lord Keeper of the Great Seal of England and the Lord Treasurer, and the Barons of the Exchequer aforesaid, and having heard the informations of the same Barons
H
( iH> )
AiTHOKiriEs !">il tilt' reasons of their judji^ment nforosaiil, and niatiiru doliberation being had
thereof by tho aforesaid Lord Keeper of the Great Seal of England and the
Lord Treasurer because it seems to the aforenanic<l Lord Keeper of the Great Sejvl and the Lord Treasurer of the advice of the aforenamed Chief Justice that in the record and process aforesaid, and in the rendering of the judgment afore- said there wivs in no wise error.
Therefore it is considered by tho same Lord KeeiHjr of the Great Seal of England and the Lord Treasurer of England that the judgment aforesaid in all things shall be aflirmed, and shall stand in its full strength and vigour, the said matter above by the error assigned in any wise notwithstanding, and that the record aforesaid shall be sent back into the Exchequer for execution thcreol to be made for the said Lady the Queen as is right.]
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