Cornell University Library BX 5154.T65 The "legal history" of Canon Stubbs:bein 3 1924 017 836 572 (Sorndl Cam ^rtyonl Ctbratg THE "LEGAL HISTORY" CANON STUBBS: BEIKO THE BASIS OF THE NEW SCHEME; OF ECCLESIASTICAL COURTS PROPOSES 11Y j&jxc llflpl Commissioners of 1881-3. REVIEWED 1J1' J. T. ^DMLINSON (fcAT-MEMBEK OF TirE MANCHESTER DIOCESAN rONFEHEVCE). ^■^*SB j > 0-^ LONDON : EDWARD STANFORD, 55, CHARING CROSS, S.W. Price Sixpence. II Cornell University B Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017836572 THE "LEGAL HISTORY" OF CANON STUBBS BEING THE BASIS OF THE NEW SCHEME ECCLESIASTICAL ..COURTS PROPOSED BY THE EOTAL COMMISSIONEKS OF 1881-3. BEVIEWED BY J. T. JOMLINSON (Lay-Member of the Manchester Diocesan Conference). %ariCsan: EDWARD STANFORD, 55, CHARING CROSS, S.W. G. NORMAN AND SON, PRINTERS, HART STREET, COVENT GARPEN. TABLE OF CONTENTS. Chapter I. iNTBODtTCTION. PAGE Origin, of the New Scheme 5 Hostility to the Judicial Committee ....... 6 Mr. Gladstone, Bishop Wilberforce. Selection of the Royal Commissioners 7 Method of their Inquiry 8 Archbishop Tait : his death a grievous loss ..... 8 Canon Stubbs suggests a change in the Inquiry, and incomplete Returns 9 Author of the" Historical Appendix," and of the Report . . 10 His bias against the Judicial Committee . . . . .11 His theory of the Reformation 11 Chaptbb II. Spieitual Jurisdiction. Confused Terminology ......... 13 Meaning of '" Jus" and " Jurisdiction" U Nebulous views of Witnesses ........ 16 Liddon, Phillimore, Body, Mackonochie, Wood, Comvpton, Wilkinson Meaning of " Spiritual" 17 What is a " Spiritual Court ?" No definition . . . .18 Btubbs, Phillimore. Jurisdiction defined by the Commission 20 1 * IV Chapter III. " History " versus the Statute Book. PAGE ' Supremacy 22, 25, 62 Bests on National Will . . 24 Expressed by Statute 25, 27 [For List of Statutes, see p. 21.] Singular Resolutions moved by Canon Stubbs .... 63, 64 Chapter IV. Recommendations oe the Commissionehs. Valuable Features of Commissioners' Scheme 65 Their Misuse of the word " Church," 66 Consequent craving for " Clerical " Judges ...... 67 Failure to deal with " Canon Law " 68 Discipline of the Laity 70 Abuse of Excommunications, 8fc. ....... 71 " Synods" as " Legislative" Courts 72 1. The Court oe First Instance. " Personal " Court Undesirable, being — 1. Unfit . : 72 2. A Proved Failure 73 3. Condemned by Royal Commission 0^1832 . . . .74 Clerical Canonists 76 The Veto 77-80 Incompetency of Fee-paid Officials in Petty Courts . . . .80 2. The Arches Court. Us Constitution 81 Its Relation to the Appeal Court 82-3 3. The New Court oe Appeal Its " Personnel " Lowered 84 Its Weight Divided 84 Its Action Hampered 85 Its Rulings " Counter-blasted " . . . . . . . .86 Its Impotence Secured 87 Analytical Index 89 ANALYSIS EEPOET OF THE EOYAL COMMISSION APPOINTED TO "INQUIRE INTO THE CONSTITUTION AND WORKING OF THE ECCLESIASTICAL COURTS, AS CREATED OR MODIFIED UNDER THE REFORMATION STATUTES OF THE 24 AND 25 HENRY VIII, AND ANY SUBSEQUENT STATUTES." Mat 16, 1881. N.B. — The references throughout are to Vol. I. of the Report, except otherwise specified. The figures i. and ii. relate to the column of the page named. Figures in block type (e.g. 25) relate to pages of this Pamphlet. CHAPTER I. INTRODUCTION. Oeigin of the Royal Commission. The failure in 1850 of the attempt to overthrow the Gorham Judgment was due to a unanimous declaration by all the Judges of the Queen's Bench, of the Exchequer, and of the Common Pleas,* that no appeal in heresy lay from the Court of Arches to Convocation, and that 24 Hen. VIII, c. 12, s. 4, was " in effect repealed " by the "subsequent statute," 25 Hen. VIII, c. 19.f Many Churchmen * These judgments are given at length in Dr. Stephens' " Notes, Legal and Historical, on the Book of Common Prayer," Vol. II., pp. 1382-1419. f These two statutes are "The Reformation Statutes" named in the oyal Commission ; and the Judicial Committee of Privy Council succeeded the Court of Delegates created by 25 Hen. VHI, c. 19. felt strongly upon the subject, amongst whom was Mr. Gladstone, the head of the present Government. His opinions, which may- be fairly taken to represent those of a party in the Church, were published during the same year (1850) in a pamphlet on the " Eoyal Supremacy," in which he attacked the Judicial Committee of Privy Council. This pamphlet he has reprinted at various dates, in 1865, 1877, and 1879, thus showing the persistence of his hostility to the Judicial Committee. From the published "Life of Bishop Wilberforce," it appears that in consultation with Sir R. Phillimore and the then Bishop of Oxford, Mr. Gladstone concerted several schemes for getting rid of the Judicial Committee. One such scheme, that of 1855, embraced the main features of the scheme of the Royal Commissioners, 1883. It proposed to "repeal the Act of "Win. IV" constituting the Judicial Committee ; to give ' ' a reference which need not be binding, "to the Bishops of the province;" "letting the Lay Court, as a "Lay Court, decide the individual cause, . and trying to guard the " precedent." In reporting this, Bishop-Wilberforce adds :^-> . " Gladstone looks forward to clerical Chancellors, when the clergy are " educated for it hereafter." — Life of Bishop Wilberforce, 11-288. The reproduction of these ideas in the Report of the Royal Commissioners may perhaps not be surprising when it is remem- bered that Mr. Gladstone was in a position to select the members of the Commission, and. (as we learn from the minutes of the second meeting) gave a dispensation for non-attendance to a Commissioner (Mr. Freeman)£who was appointed on the sub- committee to draft the Report. Even the points which are omitted by the Commissioners were indicated for postponement years ago by Mr. Gladstone, who remarked as to the " discrepancies " of the law " (which surely must affect the " working of the " Ecclesiastical Courts "), that — " This might be dealt with at an after time, the rule in our time being, " as to all Church matters, to put the cart before the horse."— Life of Bishop Wilberforce, III-105. This may explain what is otherwise inexplicable : the total ignor- ing in the Report of the chaotic state of the so-called "law" now adminitsered in Ecclesiastical_Courts. It explains also the. selection of pronounced Ritualists, like the Marquis of Bath, the Earl of Devon, member of £the English Church Union ; Sir R. Phillimore (who in the Bennett Case pronounced an " extra-judicial opinion" in favour of " the adorable sacrifice of the Mass "*) ; Bishop Mackar- ness (ex-member of the English Church Union, who claimedf to have " vindicated the old historical independence of the Church Courts " by vetoing the Clewer Case) ; Dean Lake, Canon Stubbs, and Prebendary Ainslie (all signatories of the " Remonstrance " against the Purchas Judgment) ; Mr. Ereeman (a well-known admirer " of S. Thomas of Canterbury " and apologist for mediaeval insti- tutions) ; Sir R. Cross, and Mr. Whitbread, both of whom voted against allowing any appeal from the Bishops' veto when the Public Worship Regulation Bill was befoi-e the Commons; and Mr. Charles, the counsel of the English Church Union : these, from their known antecedents, seemed likely to secure the wished-for result which Mr. Gladstone had indicated; while the Bishops of Winchester and Truro might be paired off against the two Arch- bishops — who, of course, were inevitable. There remain only to be enumerated — beside Lord Coleridge, Canon Westeott and Mr. Jeune — Lord Penzance, Rev. Chancellor Espin, and Dr. Deane (whose professional existence is bound up with the " Spiritual Court " system) ; two clerically-minded laymen, Lord Blachf ord J and Sir W. James ; and last of all two (!) evangelicals, the Earl of Chichester and Dean Perowne, who not being specially conversant with the subject would be unlikely to issue a separate Report. It is known that a methodized and systematic agitation had been kept up for years, stimulated by controversial writers who attacked each judgment of the Privy Council in turn, accusing Lords Selborne, Cairns, Hatherley, Chelmsford, Kingsdown, and their colleagues, of ignorance, incompetence, and dishonesty. Meetings had been held in various parts of the country, at which these incriminating statements were reiterated, until, being seldom contradicted, they came to be regarded in some quarters as beyond * See p. 18 of " Is Lord Penzance fit to succeed Sir E. Phillimore ?" (London: Marlborough, 51, Old Bailey. Price Id.) t Report, Vol. II., p. 196. $ Author of the Apophthegm, " Cranmer burnt well," preserved in Eev. T. Mozley's " Keminiscences," Vol. II., p. 230. contradiction ! The result was the production of considerable discontent. The Eoyal Commissioners very properly invited representative men to explain the grounds of their discontent, but unhappily no attempt was made to tabulate or to compare the curiously-incon- sistent and conflicting replies. As, however, the evidence thus given is supposed to be in some sense the basis of the recommenda- tions for future legislation, an Analytical Index is submitted herewith, to enable students of the Report to see at a glance the extravagant incoherence of views now entertained. (See p. 93.) The examination of witnesses was conducted "with wisdom, *' experience, and tact " (as his fellow-Commissioners gratefully acknowledge, p. 11) by Archbishop Tait, whose unshaken Protes- tantism is seen throughout in his shrewd exposure of sentimental grievances. (See especially Qq. 5902, 5961-2, 5975, 6176, 6240-1, 6251, 6873.) His views were known to be favourable to the retention of the Judicial Committee of the Privy Council, for reasons which he published in his preface to " Brodrick and " Fremailtle's Privy Council Judgments," and again in 1877 in " The Church and Law." But his health was known to be failing, and he died on December 3, 1882. A resolution to postpone the consideration of the final Court of Appeal till " the spring of 1883 " was moved by the Marquis of Bath on July 21st, 1882. The resolution was lost : but that proved to be the last meeting which the Archbishop was able to attend ; the sub-committees for drafting the Report having been appointed only the day before. His Grace's absence was a grievous loss to the Church, for we can hardly doubt that many obnoxious proposals which were carried by narrow majorities — seven to five, nine to eight, and nine to seven (see minutes of subsequent meetings) — would have been rejected had the chair been occupied by Archbishop Tait. The attack upon the Judicial Committee had, however, been in preparation long before this. So early as the third meeting, June 17th, 1881, Canon Stubbs submitted suggestions on the method of treatment of historical questions, which were printed : on July 14th these were " amplified and explained," and notice was given to move for returns : on July 22nd he moved accordingly for eight returns, the first of which he " offered himself to make " to eluci- date " the constitution and working of the Ecclesiastical Courts as " created, modified, or otherwise recognized under the Reformation " Statues of the 24th and 25th years of King Henry VIII, and "subsequent statutes." The interpolation of "otherwise recog- "nized" enabled the abolished and suppressed courts to be included as well as those indicated in the terms of the Royal Commission. The second return moved for, and furnished by Canon Stubbs, was a list of trials for heresy " up to the year 1533." This seemed a curious way of illustrating the working of courts " created "or modified" at that very date!* But, whatever the intention, it led to the exclusion of the case of Lambert, who, in 1538, appealed from the Court of the Archbishop, and was tried for heresy by the King sitting in person, with the whole peerage and the twelve judges acting as assessors. It enabled also the trials for heresy in the reign of Mary to be hidden from consideration, for though subsequent in date, they illustrate the received theory of the Un-Reformed Anglo-Roman Church, seeing that Mary sought throughout to go back to the "twentieth year'' of Hen. VIII. Such details would have been fatal to Canon Stubbs' theory ; because, as Mr. Droop brought to his notice [Vol. II, p. 94, Q. 2165], Cranmer was examined by the commissary of the Pope who sent his sentence of condemnation for heresy direct from Rome ; and as it was essential to the argument that the jurisdic- tion of the Pope in heresy should be denied, the economy of excluding this evidence by limiting the return to the period prior "to the year 1533 " will be obvious. On November 3rd, 1881, the returns are reported as "made by " Canon Stubbs," and were printed. On December 20th he added an " explanatory note." On February 23rd, 1882, the preparation of " a preliminary Report as to the historical matters considered by " the Commission " was postponed " until the materials for such a * It should be understood that the lift gives a mere per-centage of the recorded cases. It excludes men like James Bainham, burned only a few weeks after " the Great Statute of Appeals " (Brewer's " State Papers," V-772), upon a sentence given only by the Vicar-General, April 20, 1532. It excludes also, John Frith, the indignation at whose death is supposed to have occasioned the passing of 25 Hen. VIII, c. 11 (Foxe, Act and Mon. V-66, note), and scores of others. 10 " report had been collected by Canon Stubbs, who had undertaken "the collection." This was six months before it was (on July 20th) "resolved that Canon "Westcott, Canon Stubbs, and Mr. E. A. " Freeman be appointed as a committee to frame drafts of those " portions of the Report which will deal with — (1) " The origin and nature of the ecclesiastical jurisdiction over '' clergy and laity. (2) " The principle of the limitations and restraints of it imposed- by " the civil power. (3) "An account of the courts which have exercised ecclesiastical "jurisdiction in England," &c. &c. It turns out that all this was a foregone conclusion. The so-called " Historical Appendix " (p. 21) was written, as the Report states, by a " member of our body " (p. xvi.), viz., CanonStubbs, and was written expressly as a "Draft Report" {see p. 47, col. i.), containing curious " asides " or rubrics as to arguments to be expanded, or varied by the "reporters." [See p. 29, col. ii. ; 31-i. ; 41-i. ; compare p. 37 with Report, xxxi.] The two other committee-men were merely "Assessors " in the sense of the Report, and the Report itself from pp. xvii. to xlv. is " taken over bodily "with a few transpositions, from this " Historical Appendix." The tentative suggestion (p. 39-i.) "it might be argued" is changed into the bolder statement "it "would seem from this." (p. xxix.) Once the Report fairly con- tradicts the Draft when it says (p. 46-ii.), "it is not easy to adduce " instances " of a Bishop sitting in his own court since the Refor- mation ; this is changed (p. xxxviii.) into the positive statement, " instances may be adduced." With such trivial changes, however, we may say that the theoretical portion of the Report was written by Canon Stubbs. It would seem that his " Draft Report " was written mainly with the purpose of attacking the Judicial Committee of the Privy Council. Strong feeling on the subject is shown, for instance in the suggestion (on p. 48-ii.) that the Delegates suppressing the " grounds of their decisions had at all events the effect of saving j " the country from the infliction of an authoritative exposition " of law from inexperienced judges.'' In copying the passage into the Report (p. xliv.), this was wisely left out. Similarly, on p. xl. 11 (the , Commissioners omit an attack (in p. 50-ii. of the Draft) upon "prelates like Parker, Andrewes and Laud" for being " content to act under such commissions " as are irreconcilable with Canon Stubbs' theories. He sums up his paper (p. 51) in a series of " conclusions " of which we may notice the last three. In the seventh, he repeats his objection to the Judicial Committee, viz., that the Act appointing the Privy Council in lieu of the Delegates did not make " any provision for the trying of such points by judges " who had either spiritual authority or theological competence.'" His eighth conclusion is that the existing state of things has been brought about by " the assumption of successive generations of " lawyers, and the laches or want of foresight on the part of the " clergy." His final conclusion, to which all the paper has been working up, is " that under these circumstances the maintenance of " the existing jurisdiction of the Judicial Committee of Privy " Council as a final tribunal of appeal in matters of doctrine and " ritual, is not to be regarded as an essential part or necessary " historical consequence of the Reformation Settlement." These conclusions were not formally endorsed by the Commissioners ; but the whole of this so-called "Historical Appendix " is the pleading of an advocate who is anxious to establish a theory, rather than to ascertain and develop the whole truth : and it is an unusual instance of deference to ecclesiastical "authority" that the Commission should have accepted implicitly as "irreformable'' the series of historical myths which were put before them in this " Draft " Report." Canon Stubbs' theory is this: the "Reformation" was merely an anti-Papal movement ; the Pope had then no appeals in heresy or discipline ; the King merely succeeded to the de facto then existing powers of the Pope ; consequently the King had no appeals in heresy or discipline. Therefore the King's "Delegates" could not try heresy, the King's powers being merely visitatorial, analogous to the appel com/me d'abus; and all beyond this was due to a claim of " headship," which is undefined, and was laid aside as " uncon- " stitutional " by Elizabeth. From all which he deduces the welcome hypothesis that the Crown is not the source of ecclesias- tical jurisdiction, but merely exercises, as from without, a visitatorial 12 or corrective superintendence over an independent set of courts, the judicial authority in which "proceeds from and resides in "the Bishops. It is to give effect to this theory that the recommenda- tions of the Eoyal Commissioners were framed, and in the presence of so great a danger it behoves us to examine in detail the theory itself. CHAPTER II. Spiritual Jurisdiction. Before however plunging into the intricate detail of the " His- " torical " Appendix, it is necessary to appreciate the root fallacy which underlies the whole Eeport. Canon Stuhbs had urged upon the Commissioners " the extreme importance of ... . careful " limitation of the terms used." (p. 22.) Tet neither his " Draft " nor the Eeport pays the slightest attention to the fundamental importance of the two words "spiritual" and "jurisdiction" to which their attention had been formally called by a "Memorial " (of which, by request of their secretary, a copy had been sent to each Commissioner in December,* 1881). The Commissioners at their twenty-second meeting refused to print this Memorial, although they had already reprinted from The Church Times of June 24, 1881, an Address by the President to the members of the English Church Union of double the length of the " Memorial," and this in addition to giving his " evidence." By ignoring all attempt to clear up the meaning of technical terms, it became possible to describe *' moral and consensual authority " as working " through volun- " tary obedience and the use of simply spiritual authority," and in the same breath to call it " the jurisdiction of ecclesiastical judica- " ture." (Vol. I., p. 22-i.) Such language is neither " historical " nor accurate. " Voluntary and consensual " obedience depends entirely upon the will of the person who chooses to obey ; recognizes no " law " but such as he willingly chooses and consents to acknow- ledge ; it begins when he chooses, is changed as he chooses, and * "Memorial of Laymen's Defence Association to the Royal Commissioners on Ecclesiastical Courts," published by Marlborough, 51, Old Bailey, London. Price 4d. 14 ceases when Be pleases. It has no more to do with " jurisdiction ' than has the tossing up of a coin by which two schoolboys agree to determine a dispute. " ' Jurisdiction,' which is a term of the Civil Law, was not adopted " into the Canon Law as applied to Bishops until the 12th century. " ' Jurisdiction ' was never attributed to Bishops until Emperors' and " Kings had conferred on the Bishops a power of exercising, in their own " Courts, an external coercion ov.er the bodies and goods of men. Then, " and not before, we meet the term ' spiritual jurisdiction.' " — Dr. Stephens' Correspondence with the Archbishop of Armagh, p. 10. Dr. Littledale in his " Plain Reasons " (Preface, p. xxvi.) cites Dupin for the " Remarkable fact that during the eight first centuries of the Church, "whenever mention was made of Church authority, these terms " 'jurisdiction, sovereignty (majestas) or tribunal ' were not employed, " but only that of Ministry of the Chair." The Church Times, in an editorial answer to correspondents, January - 5th, 1883, says :— "Jurisdiction has nothing to do with Orders. A newly-elected Pope, " even if still a layman, receives at once jurisdiction over the Roman " Church before his ordination or consecration, and the same holds good' " of any priest or layman nominated to be Bishop of a Eoman diocese, " for he enters at once on all legal powers within it. It is thus a mere " creature of human law." Our English lawyers have always claimed for the Crown exclusive " jurisdiction," i.e., the power (juris dicendi) of defining those^ CORRELATIVE RIGHTS AND OBLIGATIONS WHICH ARE THE CREATIONS OP LAW. " Jus is the scheme of rights subsisting between men in the relations, "not of all, but of civil society," says Mr. Gladstone, quoting Cicero. " Jus hominum situm est in generis humani societate."— Royal Supremacy; p. 26. This sense of the word, Mr. Gladstone says, was that of Lord Coke, and he adds : — " Excludes altogether that of the canonists and [is] also a sense which " appears to have been the genuine and legitimate sense of the word in " its first intention. Now, when we are endeavouring to appreciate the " force and scope of the legal doctrine concerning ecclesiastical and 15 " spiritual jurisdiction, it is plain that we must take the term employed " in the sense of our law, and not in the different and derivative sense in "which it is used by canonists and theologians. But canonists themselves " bear witness to the distinction which I have now pointed out. The "one kind is ' jurisdictio coactiya, propria dicta, priucipibus data ;' the " other is ' jurisdictio improprie dicta ac merS spiritualis, ecclesia) " ejusque episcopis a Christo data.' "* — Royal Supremacy, p. 25, citing Van Bspen. This distinction was clearly perceived by Henry VIII. [see Letters of the Spanish Ambassador, under dates February 14 and May 13, 1532. Kepor't, Vol. I., pp. 89, 93.] He pointed out to Bishop Tunstal (p. 36-i.) that " as to spiritual things, meaning by them " sacraments . . forasmuch as they be no worldly nor temporal " things, they have no worldly nor temporal head, hut only Christ " who did institute them, by whose ordinance they be ministered " here by mortal men . . who for the time they do that and in that " respect ' tanquam ministri versantur in his, quae hominum potestati " non subjiciuntur ; in quibus si male versantur sine scandalo, " Beum ultorem habent ; si cum scandalo, hominum cognitio et "vindicta est.'"f Hence ''all spiritual things by reason whereof " may arise bodily trouble and inquietation be necessarily included " in the prince's power," while the persons, laws and acts of priests " be indeed all temporal, and concerning this present life only." J This was a clear and statesmanlike view, viz., that the " minister- " ing of the word and sacraments " (Art. 37) as such, was not a matter of " jurisdiction " at all, but was reserved to God and the day of His Judgment ; except, and so far as it produced a " scandal," which overt act brought it AS A scandal within the sphere of " juris- " diction." The utter confusion which results from neglecting this plain * " Coercive jurisdiction, properly so-called, given to Princes," and " jurisdiction, " improperly so-called and merely spiritual, given by Christ to the Church and its " Bishops." t " As ministers are employed in things which be not subject to the power of men : " in which, if they act amiss without scandal, they have God for an Avenger : if " with scandal, the cognizance and punishment belong to man." % It should be noticed that this letter of King Henry is " curiously reticent as to " the exclusion of Papal authority," as Canon Stubbs notes (p. 36-i.) ; the King " had not formally broken off relations with the Pope ;" but his relations with his own Clergy were the subject of " Reformation." 16 distinction was well illustrated, by some of the "spiritual" witnesses. Canon Liddon, for instance, cites Bishop Andrewes as saying " Docendi munus vel dubia legis explicandi, rex non " assumit."* (Q. 7390.) Now, at page 380 of " Tortura Torti," to which Canon Liddon refers, it will be found that Legis is printed with a capital "L," for which, in correcting the notes, Canon Liddon , has unadvisedly substituted a small " 1," and thereby concealed from himself the distinction which Bishop Andrewes is careful to make in that very passage between the Divine " Law " and human "jus." The former is not the subject of "jurisdiction;" the latter is ; and Bishop Andrewes goes on to assert, as the Royal prerogative; " Omnibus omnium ordinum jus dicendi : . . . etiam "Abiathar ipsum, si ita meritus, pontificatu abdicandi."f Dr. W. Phillimore similarly confounds " jurisdiction " with power to "bind and loose" (Q. 1353), or "the power to bind " consciences " (Q. 1892) ; and Canon Jenkins, referring to the same fancy, says (Q. 2906), " when we gave up the Sacrament of Penance "we kept, as it were, the whole framework which had been built " upon it remaining still ; although we had destroyed thefoundation, " we proceeded as if we still had the same jurisdiction remaining " which was transferred to the Crown and the civil courts :" whereas, urges Canon Liddon (Q. 7323), " Our Lord Jesus Christ has given " no authority to laymen to rule authoritatively questions of Christian " discipline and doctrine." But doctrine, as doctrine, cannot possibly be the subject of " jurisdiction," so as to be " ruled authoritatively" by litigation in " Courts " to be either true or false. As Mr. Body says, " Judicial power resides in the Church's Head " (Q. 3725), which is, of course,, quite true in the sense of King Henry, " Deum " ultorem habent." The Royal Commissioners are themselves guilty of the same confusion : they speak (p. xvii.) of a "jurisdiction " in " disputes " which did not admit of or require legal decision," yet which was exercised, they tell us, in a "proper Ecclesiastical Court;" yet, on the preceding page, they take credit for using " language of definite * " The king does not assume the office of teaching, nor of explaining doubtful ' matters of the law." •f "Of declaring 'jus' to all men of all orders . . . even of dismissing ' Abiathar from the High-Priesthood if he so deserved. " 17 " import !" No wonder that the witnesses lost themselves in such a fog. Mr. Maokonochie says, " I do not think that coercive juris- " diction ought to exist at all in a Christian Church." (Q. 6164.) Mr. "Wood declared that at no time would doctrine have been " tried in the Ecclesiastical Courts." (Q. 971.) Mr. B. Compton, on the other hand, is clear that the Bishop's "forum domesti- " cum is no forum at all." (Q. 2719.) Canon Wilkinson expresses the same thought with charming noCivete, " My Bishop is very busy ; " he has not had the leisure that I have had to study the history and " teaching of the Church, however great and good he may b& as a " Bishop. Over the Bishop is the Church with all her long history " of precedents. I have studied them, and taken advice from men " who have studied them even more deeply than myself. . . . So, " my lord, while I respect you personally, I do not recognize in " what you have now said spiritual authority." (Q. 1832.) That is an amusing illustration of the distinction between " spiritual " authority" and " jurisdiction :" the former depends evidently upon subjective assent, notwithstanding all its fine professions of abstract deference ; while the latter in no way rests upon such assent, but is exercised for the most part " in invitos," the " stubborn and evil- " doers " of the 37th Article. The other word whibh the Commissioners omitted to define was the term " spiritual;" yet a good deal of obscurity and glamour is created by the use made of it. If we simply substitute the word " clerical " for it wherever it occurs in the Report we shall not have altered the meaning of the sentence, but we shall often completely shatter its force. The mere selfish professional trades- unionism stands naked and bare when the claim for "spiritual " independence of the Church " is seen to mean in plain English the " clerical independence of the clergy." Before the Reformation, the word " Church " had come to mean " clergy," and in this sense it is used on the very first page of the Report. " Religion " had come to mean monkery ; and " Spiritual " naturally fell to the priests. Being thus established in the usage of the day and employed in older statutes it was retained in this narrow and inaccurate meaning in the earlier "Reformation Statutes." But " subsequent Statutes " have recognized that " the Church " means now the assembly of the faithful (Art. 23, 37, &o.) and modern 2 18 usage assigns to the word " spiritual " its older and natural sense of relating to the Divine or human "spirit." Doctrine (and its vehicle, Ritual), and, in a less direct way, Discipline, are " spiritual " matters in both senses of the word. But "jurisdiction " has nothing to do with them in the last-mentioned sense. Only spiritual weapons — argument, persuasion, appeals to the reason, conscience, heart, imagination; and to hopes and fears which relate to the unseen, and the future world — these are " spiritual" in the true sense of the word; but on that very account are not, and cannot be made subjects of human "jurisdiction," " JDeum ultorem liabent."* In reading the Eeport, therefore, it is necessary to bear in mind that the only legitimate applicability of the term " spiritual " to Courts is in the narrow and obsolescent sense of "clerical." Tet, even so, ambiguity is not got rid of. What is a clerical court ? Is it (1) a court dealing with the professional concerns of clergymen (and in a less degree with laymen who are acting in their concerns) ; or (2) a court presided over oy a clergyman; or (3) a court deriving its authority from clergymen ; or (4) a court of the Crown "sanctioned; " by Convocation," or by some other clerical organ ? The Commissioners do not seem to have agreed at all as to the true answer. Archbishop Tait put to Canon Stubbs this awkward question (Q. 1103) : — " Is it the person who exercises the authority, " or the person from whom the authority proceeds, that constitutes " it spiritual ? " To which came this modest reply : — " I should " not like to answer. It is rather out of my line, and' it is a " question to which there is a good deal of theory attaching." (Compare Vol. I., p. 40, col. ii.) How much " theory " there is may be discerned from the list given in the Index, p. 93. Dr. W. Phillimore, however, is clear that a Spiritual Court means a Court having a clericalJudge. (See Qq. 1929,. 1892.) As a lay Chancellor himself, and the son and grandson of Official Principals, the follow- ing touching confession can only have been wrung from him by the power of conscience. (Q. 1360.) " The true court was a court " where the Bishop sat, with a select number of his clergy and " that every derogation from that is a derogation from the true " standard, and that a court where an official principal sits is the " They have God for their Avenger." 19 " furthest possible deviation from that standard." • Tet in a very- instructive passage of arms between him and the Lord Chief Justice (Vol. II., p. 82), Dr. Phillimore is compelled to admit that even a Bishop cannot absolve, except after process in Court, and in accordance with the judgment of a " Judex," who may be a layman. To get over this scandal, this learned civilian invented a distinction between an " Ecclesiastical" and a " Spiritual" Court (Q. 1929), which added still further to the confusion. On the whole the third " theory " seemed most popular. The fourth was largely favoured until it was pointed out that the first two Canons of 1604 sanctioned the Court of Delegates and the Judicial Committee, and so gave " the sanction of Convocation." (Qq. 3707-11.) The Prolocutor of York Convocation, however, said, " The Canons of 1603 are very little authority. No one " knows exactly what authority they have." (Q. 4530.) (Compare Hope, Q. 6412.) It may seem strange that a Royal Commission should pronounce upon " Spiritual Courts " without ascertaining or defining what was meant by the term. But they had left themselves in the hands of Canon Stubbs ; and Canon Stubbs, as we have seen, felt that "a good deal of theory" is needed to account for the plain historical fact, that Spiritual Courts of every grade have been " created and modified by Statutes," have been presided over by laymen, under Royal Commissions, and have suspended and deprived Archbishops, Bishops, and other clergymen, and inflicted upon them the censures and excommunication of " Holy Church." None of the transcendental " theories '' would fit these facts, so nothing was left but to use the word "jurisdiction" in a loose sense, some- times for the mere terrorism of superstition, sometimes for the due administration of "jus'' in the "King's Ecclesiastical " Courts ;" while " spiritual " could be used throughout theTEteport so as to cast upon laymen and their laws the implied censure of being less Divine than canons, constitutions, and other clerical bye- laws. What feats of deception cannot be played even upon Royal Commissioners when verbal ambiguities are permitted to the sophist ? At least let us recognize — what the Commissioners failed to recognize — the need of using the same words in the same sense, 2 * 20 and of defining the technicalities upon which we propose to build our theories. At p. liii. of their Report, the Commissioners have given (inci- dentally) a very fair definition of " jurisdiction," viz., the " deter- " mining whether impugned (doctrines or) practices conflict with " authoritative formularies in such sense as to require correction and "punishment." The " authoritative formularies " and the " punishment " are both alike fixed by " jus." For instance, " Heresy " is defined by statute 1 Eliz. c. 1, sec. xx. ; Clerical Subscription by 13 Eliz. c. 12 ; Ritual by 1 Eliz. c. 2, and so on. The " function " of all judges, whether of diocesan, provincial or other courts is always just this, and nothing either more or less. Whether the judges are lay or clerical does not affect this point ; both alike are to declare and apply — riot theology, but "jus." An elementary and almost infantine proposition, but one apparently lost sight of by the Royal Commissioners. CHAPTER III. " History " versus the Statute Book. List of Statutes whose treatment by the Commissioners is Discussed in this Chapter. 5 Bichard II, st. 2, c. 5, p. 27. 2 Henry IV, c. 15, p. 28 and p. 46 n. 23 Henry VIII, c. 9, p. 29. 23 Henry VIII, c. 20, p. 30. 24 Henry VIII, c. 12, p. 31. 25 Henry VIII, c. 14, p. 46. 25 Henry VIII, c. 19, p. 37. 25 Henry VIII, c. 20, p. 47. 25 Henry VIII, o. 21, p. 47. 26 Henry VIII, c. 1, p. 47. 27 Henry VIII, c. 20, p. 39. 28 Henry VIII, c. 7, p. 48. 28 Henry VIII, c. 19 (Ireland), p. 25. 31 Henry VIII, c. 14, p. 48. 32 Henry VIII, c. 26, p. 48. 34 & 35 Henry VIII, c. 1, p. 49. 35 Henry VIII, e. 5, p. 49, 37 Henry VIII, c. 17, p. 49. lEd. VI, c. l,p. 51. 1 Ed. VI, e. 2, p. 51. 1 Ed. VI, c. 12, p. 52. 2 & 3 Ed. VI, c. 1, p. 52. 2 & 3 Ed. VI, c. 13, p. 39. 2 & 3 Ed. VI, c. 21, p. 53. 2 & 3 Ed. VI, e. 23, p. 39. 3 & 4 Ed. VI, c. 10, p. 53. 3 & 4 Ed. VI, c. 11, p. 53. 5 & 6 Ed. VI, c. 1, p. 54. 1 Eliz. c. 1, p. 58. 1 Eliz. c. 2, p. 26. 2 Eliz. c. 1 (Ireland), p. 27. 13 Eliz. c. 12, p. 60. 29 Car. II, c. 9, p. 40. We have next to examine, one by one, the steps of the argument set forth in the Report. The first assumption is that the Reformation, so far as it concerns this inquiry, was merely an axAi-Papal movement, and substituted the King for the Pope ; but this leaves out of sight many pertinent facts. In the first place, the very " creation 22 " and modification " of Courts by " Statutes " implied and asserted the control of Parliament. It is not enough to say with the Report (p. xxxv.) that 1 Eliz. c. 2 " recognized and confirmed " the power of the Ordinary." It conferred upon the Ordinaries a new jurisdiction. " For their authority " they " shall have " full power and authority by this Act to reform, correct, and " punish by censures of the Church," &c, are the words of the statute. Then, as now, the Legislature created the jurisdiction which the Crown exercised by its judges, whether " spiritual " or lay. The essence of " The Reformation," ecclesiastically speaking, lay in this, that it was an uprising of the laity (the " ecclesia " of Scripture) to claim for themselves a voice in Reforms, both doctrinal and disciplinary, the introduction of which was resisted by the clergy. In a Parliament consisting exclusively of Church- men, there was felt to be nothing unfit in legislating for the Church, which they virtually if not formally represented, although the Convocation claimed to " represent " not only the clergy, but " doctam Eccl. Angl. partem." (Burnet, " Hist. Ref .," I-ii-312.) As legislators, Parliament alone (with the King) could either " create or modify ecclesiastical courts." " The importance of the new measures," says Mr. Green,* " lay really " in the action of Parliament. They were an explicit announcement that " Church reform was now to be undertaken, not by the clergy, but by " the People at large." " The partie of the clergie," as King Henry called them,+ were indignant at this recovery by the laity of their rightful position. The divorce of Katharine was far from commending itself to the people, yet the detestation of the clergy was so general (as the Spanish Ambassador repeatedly testifies — Report, pp. 79, 81, 89, 90), that bill after bill passed into law, " to the great "rejoicing of lay people, and the great displeasure of spiritual " persons."} Nor is it correct to say that the King merely took over such powers as the Pope had acquired. On the contrary, the very first Act named in the Royal Commission (24 Hen. VIII c. 12) * " Hist. Eng.," II-148. f Burnet, " Hist. Kef.," IU-ii-209 J Green, "Hist. Eng.," 11-149. 23 was careful to specify not only " such cases where heretofore the "King's subjects have used to pursue" to Eome, but "all other " cases of appeals." (p. 215-ii.) So Elizabeth's Supremacy Act claimed not only such jurisdictions as by any spiritual power " hath " heretofore been," but it immediately adds or may lawfully be." (1 Eliz. c. i., sec. viii., p. 225-ii.) But the Commissioners say that " the statements of the several " STATUTES WHICH DECLAEE ALL AUTHORITY OP THE OeDINAEIES TO BE " DERIVED FROM THE KlNG MUST BE TAKEN WITH SUCH LIMITATION AS " legal history compels us to make." (p. xxxvi.) Surely such an extravagant claim was never before made. If this were a merely literary inquiry, we should feel that (as Professor Stubbs says) "there is a good deal of theory about it." But for persons who have received the Royal Command to report upon Courts* " as " created or modified by Statute," to claim the right of substi- tuting their theories of " Legal History " for " the language of "the Statutes" is surely an unprecedented piece of presumption. The change has been made under the pretext that they wish to make their recommendations "consistent with historical con- " tenuity." (p. xvi.) But they ignore the flaw in that "historical " continuity "—the " fault " as geologists might call it— to preserve which, the very terms of the Royal Commission (as explained by Archbishop Tait and the Lord Chancellor of England when the Address to the Grown was voted in the House of Lords) purposely pledged the Government. To enable them to get "behind" the Reformation (as The Church Times expresses it) the Commissioners claim (p. xvi.) that "the scope of their inquiry is found to include "the whole history." If so, why mention the "Reformation " Statutes " at all ? And why specify merely " subsequent " Statutes "? Canon Stubbs, it will be remembered, had shown the way by adroitly interpolating the words "or otherwise recog- " nized." {Supra, p. 9.) How completely " the language of the " statutes " is at variance with " Legal History" may be seen from the following table : — * N.B. — To inquire into Courts " as modified " by a statute is not the same thing as to inquire into Courts which had heen so modified : the former = the " Reformation Settlement," the latter = Stubbs' legal " history." The Commis- sioners have substituted the latter for the subject named in their Commission. 24 LANGUAGE. " The King at sundry Parliaments . . . ' made laws for the conservation of the ' pre-eminences of the Imperial Crown ' of this realm and of the jurisdiction ' spiritual of the same." "The know- ' ledge of testamentary, &c, causes hy ' the goodness of the Princes of this 'realm and by the laws and customs of ' the same appertaineth to the spiritual 'jurisdiction of this realm." This language may be illustrated by the King's letter to Bishop Tunstal the previous year : " Some crimes we remit by our " sufferance to the judges of the clergy. . . . Other crimes we leave '' to be ordered by our clergy, not because we may not intermeddle " with them," &c. : also, by his letter, just after the passing of this Statute, to the Primate, " to whose office it has been and is " appertaining, by the sufferance of us and our progenitors ... to " judge and determine mere spiritual causes within this our realm, '' because ye be under us by God's calling and ours the most " principal minister of our spiritual jurisdiction within this our " realm." [Wilkins, III-764. Collier, Vol. IX-103.] 1534 1534 25 Hen. VIII, c. 19 25 Hen. VIII, c. 21 LANGUAGE. Canons made " frustrate and of none " effect " by Parliament, and a new Spiritual Court created hy Statute. " Your Grace's realm ... is free from "subjection to any man's laws, but only "to such as have been devised . . . " within the realm ... or to such other "as by sufferance of your Grace and "your progenitors, the people of this "your realm have taken at their free " liberty by their own consent ... as to " the customed and ancient laws of this " realm, originally established as laws "of the same, by the said sufferance, "consent, and custom, and none other- 25 This is well illustrated by Lord Hale's celebrated declaration. ^ "All the strength that either the Papal or Imperial" [i.e., "civil"] " laws have obtained in this kingdom, is only because they have been ^'received and admitted." . . . "Their authority is founded merely on " their being admitted and received by us, which alone gives them their " authoritative essence, and qualifies their obligation."* " "Which laws," said Hooker.f " being made among us are not by any of |* us so taken or interpreted as if they did derive their force from power "which the Prince doth communicate unto Parliament, or unto any other "Court under him, but from power which the whole body of the Eealm "being naturally possessed with hath by free and deliberate assent " derived unto him that ruleth over them." So little warrant is there for regarding the Keformation as an affair between the Bang and the Pope. 1534 1537 1545 STATUTE. 26 Hen. VIII, c. 1 LANGUAGE. 28 Hen. VIII, c. 19 (Ireland) 37 Hen. VIII, c. 17 " By authority of this present Par- '' liament the King shall have and enjoy, " annexed and united to the said Im- " perial Crown, all jurisdictions to 1he " dignity of supreme Head of the same " Church belonging ; and visit, reform, " order and amend all heresies which " by any manner spiritual authority or " jurisdiction ought or may lawfully be " reformed, ordered," &c.J Repeats verbatim the language of 25 Hen. VIII, c. 21, above quoted. " King hath ' full power and authority "'to correct heresies, and to execute " ' all manner of jurisdiction, commonly " ' called Ecclesiastical Jurisdiction.' " (sec. 2.) Archbishops, Bishops, &c, " have no manner of jurisdiction eccle- " siastical but by, under, and from your " Royal Majesty." * Stephens' "Eccl. Stat.," Vol. I., p. 161 ; see also Lord Coke and C. B. Comyns, as cited by Lord Penzance, Report, p. Ixy. t "Eccl. Pol.," B. VIII., p. 428. X The State Paper drawn up at the time to explain this Act says : " The King " hath power to suppress all such extorted powers, as well of the Bishop of Home " as of any other within this Realm, whereby his subjects may be grieved." — Froude, 11-219. (See below, p. 470 26 1547 1 Edw. VI, e. 1 154,7 1 Edw. VI, c. 2 1558 1 Eliz. c. 1 1559 1 Eliz. c. 2 Provides for communion in both, kinds " by authority of Parliament, any " ordinance or custom notwithstanding." The Bill was introduced into Parlia- ment before Convocation consented (p. 143, and Wake, 592), which it did only " nemine contradicente." The Lower House " kept silence in hope of a pos- " sible reaction." (p. 142.) Eive Bishops voted against it in the Lords. (Burnet, II-i-84.) Convocation was not con- sulted as to the " Order of Communion," which was drawn up by certain Bishops and learned men after the Act passed, and issued by Eoyal Proclamation, March, 1548. " All authority of jurisdiction, spiritual " and temporal, is derived and deducted " from the King's Majesty . . . and that " all Courts Ecclesiastical within the said " two realms be kept by no other power " or authority, either foreign or within " the realm, but by the authority of His " Most Excellent Majesty." Upon this Act, see below, p. 51. " By the authority of Parliament such " jurisdictions spiritual as by any spiri- " tual authority hath heretofore been, " or may lawfully be, for correction of " errors, heresies, and schisms, shall be " united and annexed to the Crown." Section 20 defines by authority of Parliament what shall and what shall not be 'heresy;' no consent of Con- vocation, nor of the spiritual Peers was given to this definition. Section 4 confers upon Archbishops and Bishops " ' full power and authority " ' by this Act to reform, correct and »' ' punish by censures of the Church,' " any other provision heretofore suffered " to the contrary notwithstanding." The . Act being described as that of the "Lords Temporal and the Commons" only. 1560 2 Eliz. c. 1 (Ireland) 27 " Repeats language of 1 Eliz. c. 1, but " omits the * assent of the Clergie ' " as a condition of any future Parliamentary definition of " heresy." (Section 17.) By the Elizabethan Statutes an oath was imposed upon every clergyman " to assist and defend all jurisdictions — granted or ;• " belonging — or united and annexed to " the Crown. This oath con- tinued to be taken down to the Revolution of 1688. The " Reformatio Legum " which the Commissioners quote with respect, p. xxxii. (having been drafted by Cranmer, and being the solo outcome of three Statutable Commissions, though never enacted) , lays down the doctrine that " omnis jurisdietio* et ecclesiastica et 1 " secularis ab eo tanquam ex uno et eodem fonte derivantur." Richard Cosin, Dean of the Arches, a.d. 1589, published tables, showing the "Ecclesiastical Government," in which under " Potestas " Regia " he reckons " Jurisdictionesf quaslibet concernentes jnris- " dictionem ecclesiasticam." Sir John Lambe, Dean of the Arches in a.d. 1636, is cited in the appendix to the Report, p. 190, saying " The King is the Supreme t " Governor, from whom the execution of all Ecclesiastical Jurisdic- " tion is derived unto Archbishops and Bishops." It appears from the evidence of Sir John Gell, that Manx appeals went direct to the Crown at the same date. (Vol. II., p. 333-i.) . Such is the " language of the Statutes," and the interpretation which they received at the time from the Ecclesiastical and other Judges. Let us now see the methods adopted by the Commissioners for "limiting " this language by their theory of " legal history." 5 Rich. II, St. 2, c. 5. I;,: (a.d. 1382.) This, is given (p. 53) as the earliest Statute against " Heresy," i.e., Lollardy. Its " legal history " is most instructive. It had been smuggled through the Upper House in May, and fraudu- * " AH jurisdictions, both ecclesiastical and secular, from him (the King), as from one and the same fountain are derived." "Jurisdictions of every kind concerning ecclesiastical jurisdiction." — Table XI., "Wekett's Edition, 1729. 28 lently entered on the Rolls of Parliament. But in October of tie same year the "Commons petitioned for the annulling of the "Act as passed without their consent. But this had no effect," says Canon Stubbs. (p. 53.) Yet the same authority had told us that it " was repealed in the same year,"* the Commons protesting that it was never their intent to " bind themselves more to the Prelates "than their ancestors had done ;"f and this was so far from "having " no effect," that the same authority tell us " all attempts at further " persecution ended for the time. The Clergy had to content them- " selves with the old process of the Spiritual Courts."J (See Professor Burrows' " Wiclif's Place in History," p. Ill, note.) Canon Stubbs' apology for these "burning" Statutes against "the way " which they call heresy," may be seen in Q. 1142, and is supported by Dr. Phillimore in Qq. 1902, 1955, Rev. B. Compton (Q. 2702),, where it may be seen to what lengths a passion for " historicai- " continuity " may carry even a Professor of History. Compare Canon Jenkins. (Q. 2871.) 2 Hen. IV, c. 15. (a.d. 1400. "-De liceretico comburendo." Report, Vol. 11-47.) The next "burning" act was forced through Parliament by the clergy during the weakness of the reign of a Usurper. In the Parlia- ment Rolls it is entitled " Petitio Cleri contra HEereticos."§ The assent only mentions the petition by Bishops and clergy. The Act begins "Item cum domino regi, et ex parte preelatorum et cleri " regni sui Anglise in proesenti Parlamento sit ostensum," &c.|| The clause " ac etiam communitates dicti regni,"^J was added by the priests.** * Stubbs' " Constitutional History," Vol. II., 470. f Burnet, II-ii-50. Foxe " Act and Mon." V-37, 808. Cotton's "Abridgment," p. 285. Parry's " Parliaments and Councils of England " (Murray, 1839), p. U7. + StubbsVC. History," III-356. " The Petition of the Clergy against the Heretics.'' " Item, since it hath been shown to our Lord the King on the part of the prelates and clergy of his Kingdom of England," &c. 1T ' And also the Commons of the said Kingdom." — See Cotton's " Abridgment," p. 09. Strype, " Eccle. Mem.," III-458. Ed. 1721. I ** The Bishop was not required to sit " in person" under this Heresy Act, nor under 2 Hen. "V, c. 7. 29 For" the interesting circumstances which accompanied the revival of this statute by the murderous statute, 1 & 2 Philip & Mary, c. 6, see Coke's " Institute," IY-17; Strype, " Eccl. Mem.," III-155, 166. 23 Hen. VIII. c. 9. &■■ (March 20, 1532. "Statute of Citations," p. 209.) This measure, which emanated from the Commons and was opposed by the Bishops in Parliament (" Hist. App.," I-33-ii.), was a striking instance of Parliament's interference to change and destroy the jurisdiction of the Archbishop's Court, and the procedure of the Diocesan Court, in spite of clerical opposition. Yet the Com- missioners fail to note the relevance of these particulars to their Inquiry (p. xxviii.), although Lord Penzance pointed out that " a graver or more distinct interference with the Archbishop's " original jurisdiction could hardly be conceived." (p. lxiv.) Neither Canon Stubbs, nor the Commissioners, notice that this Statute gave to aggrieved parishioners remedies in the temporal Courts against the Ordinary and against any and every Ecclesiastical Judge in the shape of " double damages and costs." (sec. iii.) Dr. W. Phillimore, in Q. 1933, completely misrepresented the "language of the statute," which is printed in the Report, p. 209.* The Act speaks of " the Arches, Audience, and other high Courts of " the Archbishops," and provides penalties against the "Immediate "Ordinary," the " Commissary, Official," or other "Judge," without the slightest reference to Convocation. Tet the learned canonist declared that it related to the Archbishop (not as sitting in Court, but) " in his Synod." Whereas Mr. Valpy had justly insisted on the fact that the "reservation of the Archbishop's jurisdiction, without "reference to Convocation, would seem to show that no such "jurisdiction had been vested in that body." (Report, Vol. II., p. 298, ii.) A very interesting point was raised by Mr. Blakesley and by Mr. * Thesame authority having wrongfully stated (Q. 1232), that "the Common " Law Judges were never referred to " in Whiston's case, though their formal answers to the Crown are on record (Brod.-and Eremantle, p. 322), substituted the more accurate statement that he " forgot." (Q. 1953.) Compare Q. 1965. 30 Valpy, viz., whether under this statute the Archbishop may not now act when the Bishop refuses ; the powers of 23 Hen. VIII, c. 9, being expressly reserved under the 19th section of (3 and 4 Vic. c. 86) the " Church Discipline Act," 1840. The Commissioners quietly ignored the point ; but when Mr. Jeune at the fifty-eighth meeting moved : — " That the reservation of jurisdiction to the Court of the Province in " case of a Bishop refusing to allow a prosecution, contained in the 19th " section of the Church Discipline Act, 1840, should be continued. The " motion not being seconded, Dropped." Perhaps few readers will have noted the importance of this Minute. " Historical continuity " found no advocates when it gave an appeal from the individual caprice of a Diocesan. Tet the principle of an appeal from the Bishop's veto was sanctioned* by this ancient Statute as being more ancient than itself. 23 Hen. VIII c. 20. (A.Di 1532. Payment of Annates. "Report, p. 210.) It is difficult to conjecture why this Act, which does not in any way relate to the " Courts," was printed by the Commissioners, especially since they have thought it right to suppress so many relevant Acts. They fail to notice that this Statute — 1st. Provides penalties against Ordinaries. 2nd. Orders the consecration and installation of Bishops. 3rd. Orders clergy to administer sacraments, &c. "without any scruple " of conscience." 4th. Forbids prelates to " execute " Papal ' censures or excom- munications. And all this, of course, " by authority of Parliament" alone. Mr. Dibdin (Q. 7438) said that it was passed "at the request of "Convocation." But the evidence shows that the Bishops all voted against it, and opposed it in Parliament. (Compare p. 33-i. ; 34-ii.; 89-i.) The Act, as is well known, was at once a threat, and a bribe to the Pope, to procure his sanction for the iniquitous divorce of Queen Katharine. Hence the King obtained from Parliament the 31 curious provision of an interval of eighteen months during which he might annul or give effect to the Statute (as seemed best adapted to suborn the Pope). He did not, in fact, issue his Letters Patent until July 9, 1533. Even after the passing of the 24 Hen. VIII, c. 12, so late as April 15, 1533, he offered to " revoke all," if the Pope would come to terms. (Report, p. 99.) But to prevent the appeal of Queen Katharine to the Pope, he procured the passing of 24 Hen. VIII, c. 12. {April 7, 1533. For the restraint of Appeals .) Having got the Canterbury Convocation to assent to the prin- ciple of the divorce on April 5, thereupon the Bill passed, and Parliament was immediately adjourned, April 7, 1533. It would seem that Henry had contemplated making his servile Convocations to serve as a " Spiritual Court " for the purpose of his divorce. His confidence was not misplaced, for the two Convocations did, in" fact, solemnly sanction with all the prestige of " holy Church" three successive adulteries of their crowned "head." Strange to say, there are English Churchmen who point with pride to these dis- graceful antecedents in proof that Convocation was a Court of Appeal. This was gravely asserted by Canon Trevor (Vol. II., 378), and the Hon. C. L. Wood (Vol. II., p. 29-i). But Canon Stubbs pre- ferred to follow the " Memorial "* before referred to when he said (Vol. I., 39-i.) that none of these were " in course of law." The Com- missioners (of course) follow his lead, pp. xxix., xxxvii. : and he is no doubt quite right when he says " this jurisdiction" (viz., thatcreated by 24 Hen. VIII, c. 12, § 4) " does not appear to have been ever "exercised;" but he overlooked one proof of the fact, viz., that these quasi "Courts" sat as Courts of first instance, and not on appeal, which alone the Act would have sanctioned. The " legal " history " being full of shame to the English clergy, it might seem strange that this Act should be dwelt upon so fondly by priest- partisans. They call it the " Great Statute of Appeals." Mr. Glad- stone revels in its preamble (" Roy. Suprem.," p. 32) : the Commis- * P. 13, n. 32 sioners (following Stubbs, p. 39) plead that it "is still in force." They forbear to allude to the fact mentioned in the opening of this paper, that every Judge in every one of the Superior Courts concurred in ruling that this Statute (so far as it related to appellate jurisdiction) was " in effect repealed :" indeed the Commissioners themselves (in the very same page xxix., line 13, and in page xxxvii., line 30) admit that it was "superseded" as to sections 3 and 4 by the 25 Hen. VIII, c. 19, passed within a twelvemonth after by the same Parliament. The " stammering lips " with which they, hesitate between " the language of the statutes" and their theoretical " history " find speech in the following choice sentence : — " It is to be observed finally that this Act is not repealed by the statute "25 Hen. VIII, c. 19; that in all the later repeals and revivals it is " repealed and revived as co-ordinate with that Act y that it is expressly " referred to in that Act as valid; and therefore in all points in which it " is not implicitly repealed thereby it is still in force." This is surely a puzzling sentence which assumes that the Act is not, and yet implicitly is, repealed by another Act, somehow. The explanation is simple enough. If we turn to the Acts them- selves in the Appendix, pp. 213, 217, it will there be seen that the former Act (24 Hen. VIII, c. 12) merely dealt with three classes of " causes : " but the later Act (25 Hen. VIII, c. 19) directed " all manner of appeales of what nature or condicion* soever they "be of, or what cause or matter soever they concerne," to "he " made ... as is limited for appeals ... in causes of matri- "mony, tithes and oblations," by 24 Hen. VIII, c. 12. Now, whatever else may be doubtful, one thing is certain, that the Legislature would not have troubled itself to pass a second Act to transfer other appeals, "any usage, custom or prescription to the " contrary notwithstanding," if it were known (as Canon Stubbs contends, p. 31-i.) that the only appeals to Rome were those which had been already withdrawn by the same Parliament twelve months before. "What could be the point of comparison "after such " manner, form, and condicion," if no separate classes of cases were referred to ? Yet this hopelessly-unreasonable theory is the very- heart of the Commissioners' " Legal History." They must have * On the word "condicion" see Stephens' "Notes on Com. Pr.," p, 1401-i 33 forgotten that between the passing of the two Acts the breach with the Pope had widened, and, what is of more consequence, that afteb the passing of 24 Hen. VIII, c. 12, viz. (Mar. 5, 1534) " The " Commons desired Reformation," . . complaining to the King of their treatment in the Spiritual Courts, the " calling them to Courts " ex officio, and not knowing their accusers, causing them to abjure " or else to bum them for pure malice," . . and of the clergy being " judges and parties in their own cause," p. 103-ii.* Now " abjuring" and " burning " clearly related to heresy. Compare p. 87-ii. So early as 1532 the Spanish Ambassador complains that "The King also wishes Bishops not to Lave power to lay hands on " persons accused of heresy, saying that it is not their duty to meddle " with bodies, and that they are only doctors of the soul. . . The Bishops " oppose him." (p. 93-i.) At the opening of this Parliament in January, 1534, according to the statement of the Ambassador, the King took pains to pack the house, (p. 101-i.) On March 27 the Bill of 25 Hen. VIII, c. 19, had passed the Commons (pp. 104-ii. and 34-i.), and on March 30 it received the B.oyal assent, and the same day Parliament was prorogued, (p. 34-i.) Now, the Spanish Ambassador on that very day mentions that " the King has got the Parliament to pass an " Act that no Bishop or other clergyman shall act as a Judge in a " case of heresy, but only those who shall be deputed on his part," i.e., Delegates ; and the Commissioners themselves point out that 25 Hen. VIII, c. 14 (the only other Act to which this might have been supposed to relate), "still left to the Ecclesiastical " Judge " his ancient jurisdiction in heresy, (p. xxxii.) (See below, P- 46.) It is clear that the three classes of causes named in 24 Hen. VIII, c. 12, viz., tithes, divorce, and money payments to the clergy, were all, to use modern language, "temporal." They were so described in the Queen's Bench judgment cited by Mr. Valpy,f and have been transferred, as such, long ago to the " Tem- * Compare Latimer's appeal that " secular persons of the Council should be "present at his trial" for heresy, p. 85, col. i. f Report, Vol. II., p. 300, col. ii. o 34 " poral " Courts ; yet these, in the jargon of the day, were then called " causes of the law divine and of spiritual learning." The 24 Hen. VIII, c. 12— " Still allowed an appeal to the Pope in all spiritual suits " [i.e., in the modern sense of the word " spiritual "], " and it was framed upon the " principle that, while all temporal matters which were discussed in the " Ecclesiastical Courts should be finally determined by Courts sitting " within the realm, the spiritual jurisdiction which belonged to the Pope " as supreme head of the Western Church should remain unaffected. " Accordingly this statute is confined to causes about wills, to causes " about matrimony and divorce, and to causes about tithes and " oblations."* Sir Fitzroy Kelly, who represented the Bishop of Exeter in that case, admitted the truth of this, saying, " No doubt every other " description of causes in the Court Spiritual might have still gone "to Eome."f Dr. Phillimore (Q. 1211), and Canon Stubbs (Q. 1161), admit that these three classes of suits (which would now be called " temporal," were specifically the classes contem- plated by the term "causes of the law divine and of spiritual " learning," of which, according to the preamble of 24 Hen. VIH, c. 12, none but a "spiritual" person might "judge." But then, what is that Preamble worth ? A preamble is, binding upon nobody even when hot from the legislative mint ; it contains only such a statement of motives and reasons as it suits the legislators jx> assign for the enactments which follow it. Canon Stubbs brushes away the Preambles of contemporary Acts as "the false Preambles of " Henry's statutes " (p. 37) ; but this one, because it speaks in glowing language of the spiritualty, J must be claimed as " still in " force." (p. xxix.) It may enable us to estimate the value of the mutual flatteries of King Henry and his clergy to place side by side a sample of each : — * Lord Campbell, in Queen's Bench Judgment, GorJiam v. Bishop of Exeter. It will be noticed that, not being a Canonist, Lord Campbell " deviated into common- " sense" in his use of the words " spiritual " and " temporal." f Stephens' " Notes on Common Prayer," p. 1390. t The Attorney-General in the Court of Exchequer remarked upon the altered tone of the later statute (25 Hen. VIII, t . 19), that " the Preambles of the two " Acts contrast strangely." — Stephens' Notes on Common Prayer p. 1410 35 a.d. 1531. Address of " Sacred Provincial "Synod" to the King. "Ecclesiam* studio- sissimo calamo defen- dit etootemam gloriam inde promernit, atque adccelosviam aperuit, et ingressum sibi pa- tefecit . . . ecclesia; et cleri Anglicani singu- larem protectorem," &c. — Report, p. 70. a.d. 1533. Preamble of 24th Hen. VIII, c. 12. "English Churchhath always been reputed and also found for knowledge, integrity, and sufficiency of numbers sufficient and meet of itself " (i.e., without Pope), to determine " Spi- ritual" Causes, f a.d. 1533. April (i.e., same month as last). King Henry to Abp. of Canterbury. " Great blame has been arrected to the clergy, especially the heads, because they have not hitherto stu- died and travelled for to put out of doubt . . . to set some direc- tion in the said cause of matrimony," &c. — ColUer, IX-103. a.d. 1540. On Third Divorce being sanc- tioned by Convoca- tion. " Viros esse plurimos tarn graves, literatos, honestos,acpios, quam nspiam locorum alibi reperiri possent." J — Report, 1-124-ii. Tet the admirable 'merits of the clergy did not blind either the King or the Parliament, in 1533, to the fact (mentioned above p. 24) that the /'knowledge whereof" (i.e., of the three causes mentioned in the Act), " by the goodness of Princes of this Realm, " and by the laws and customs of the same, appertaineth to the " spiritual jurisdiction of this Realm." This formally excluded all idea of an independent jurisdiction. If the preamble of 24 Hen. VIII, c. 12, is good for anything, it proves that " spiritual jurisdic- " tion " was lodged in the clergy solely by " Princes and laws of " the realm." Even the account of the "realm " or "kingdom" as an " empire " and as a " body politic," of which the " spiritualty" was a " part," the jurisdiction used by them being that of the " Realm," and in virtue of their being part of that body politic, viz. (not the Church, but) the "Realm," really proves the same thing, though careless readers might fancy the " Church " there a separate body from the State. " Church " in that statute means not the ecclesia (which was then co-terminous with the State), but * " He defends the Church with his most diligent pen, and thence hath " thoroughly merited eternal glory, and opened a way to heaven, and made wide the " entrance for himself ... the singular protector of the English Church and " clergy." t The toning down of the Preamble of 24 Hen . VTCI, c. 1 2 as originally drafted by Henry VIII (see Vol. I., p. 213) is another indication of his desire to conciliate the clergy prior to his Divorce. J " Men, very many, as grave, lettered, honest, and pious as could in any place "elsewhere be found." 3 * 36 the clergy, as "part of the said body politic" (see p. 164, col. ii.). The clergy are there considered not as the officers of a separate corporation, but as constituent members and ministers of the King's "Eealm." As such, alone, had they anything to do with "juris- " diction." To sum up therefore, as to 24 Hen. VIII, c. 12. The Preamble never had the force of an Enactment ; Canon Stubbs admits (Q. 1165) that it is unreasonable to "read it into" subsequent Acts of Parliament ;. its recognition of the clergy as constituting "the " Church" has been disallowed by " subsequent Acts ; " it recog- nizes that "spiritual jurisdiction" belongs to the "realm," and is due to " Princes and laws of realm " even when exercised exclusively by spiritual persons : and it provides by authority of Parliament that every Priest who refuses to administer sacraments, &c, on account of excommunications, &c, shall be imprisoned. (Report, p. 215.) So much for the Preamble. Sections 2 and 3 cut off appeals to Rome in the three quasi- " spiritual " causes named, but provide that not only customary but '' all other " appeals in those causes should lie to the Archbishops' Courts. This portion of the Act still stands, and is the basis of the comparison made in 25 Hen. VIII, c. 19, as a standard for all other " spiritual causes." But the fourth section is " in effect repealed." It forbade any appeal from the Arches ; whereas the 25 Hen. VIII, c. 19, gave an appeal from the Arches to the Crown. It also gave an appeal to the Upper House (only), of one Convocation (only), from the Arch- bishops' Courts, in suits relating to the King. That .provision however, ' was never once acted upon : it was made to serve the King's lust, and he found a shorter cut to his end, viz., by a trial in the Archbishop's own Court. As Canon Stubbs says, " It does not appear to have " ever been exercised;" the actionof Convocation in the three Divorces being, as the Commissioners report, p. xxix., " not in course of law," though technically, of course, all of them " Spiritual " Acts. " The Great Statute of Appeals " (so-called) was only of per- manent importance because it served as a basis for 37 25 Hen. Till, c. 19, Passed March 30, 1534. (" The Submission of the Clergy, and Bestraint of Appeals.") The statement of the Commissioners that " in all the later " repeals and revivals, 24 Hen. VIII, c. 12 is repealed and revived " as co-ordinate with that Act," and " is expressly referred to in that " Act as valid" (p. xxix.), is only. true in the very limited sense that its procedure was adopted and extended by the latter Act, by which it was superseded. " All " appeals were, after Easter, 1534, to be " after such manner . . ess is limited " in 24 Hen. VIII, c. 12, for the three appeals there specified : and the latter were to be no longer finally decided in the Court of the Archbishop,* but (by Section 4) might thenceforth go, like the rest, to the Crown. There was absolutely no limit either as to the nature of the cause appealed in, or as to the qualification of the Judges. The latter were simply required to be the King's " Delegates " in Chancery. This is expressly admitted by the Commissioners, p. xli. The Act 25 Hen. VIII, c. 19, consists of two parts which have a separate history. The first three sections relate to the Laws of the Ecclesias- tical Courts ; the fourth, fifth, and sixth, to Appeals ; while the final proviso, we learn, was added by the House of Lords. The first part was founded upon the Submission of the Clergy which the King forced upon Convocation in words formulated by himself, (p. 92-i.) It provided that no canons should in future be made without the King's assent beforehand and his ratification afterwards. Next, that since the existing "constitutions provincial" were "overmuch onerous to the King's subjects," they should be weeded by a Commission half- lay in composition ; finally that the King's assent must be given to the residue. This latter provision was strengthened in the Act by the words " so that the King's most " Royal assent under his Great Seal he first had to the same." No * Because, though tithes and oblations had been specially dealt with in April, 1533, by 24 Hen. VIII, c. 12, the Commons still complained (March, 1534) of the Clergy as " taking tithes and offerings contrary to justice, and being judges " and parties in their own cause." 38 such assent under the Great Seal was ever given. " One direct result " of the measure was that the study of Canon law almost imme- " diately fell into desuetude, and the Universities were forbidden to " confer degrees in that faculty." (Report, p. xxvii.) " In one point, " the employment of lay Judges, the Canon law was distinctly " repealed " (Report, p. xxxii.) ; and this repeal is expressly attributed by 37 Hen. VIII, c. 17, to this very statute of 25 Hen. Vni, c. 19. The only legal vitality preserved to the old Canon law was by the final proviso that the then existing canons which were not obnoxious " shall now be still used and executed AS they were " afoee the making of this Act till such time as they be viewed," &c, by the aforesaid Commission. Here two things must be noted. First, the Canon law never had any authority of Parliament " before the passing of this Act," consequently it had no such authority after it, by the Act. Second, that " till such time as " they be viewed " is not equivalent to " in default of such review ;'' therefore this revision of the canons having become impossible by the death of Henry, the clauses which were to operate only until that event, became a dead letter. As in the law of real property, " if an estate be limited to a man and his heirs until (A) shall "attain the 'age of twenty-one, the estate will determine if (A) " should die under that age."* As Lord Denman observed in the Queen's Bench judgment in Bishop Hampden's case, "the Canon " law is not part of the law of England, unless it is made so by " authority of Parliament here, or by ancient and uninterrupted "use and acknowledgment. The burden of proving that a " particular part of that law is the law of England rests with those " who assert it to be so."f Now the Commissioners in their summary on p. xxvii. leave out the important words "under the Great Seal" from the Royal sanction, and " as they were afore the mating of this Act " from the recognition of existing canons. This enables "legal history" to supplant " the language of the statutes," and to claim (p. 38-ii.) * " Preston on Estates," p. 55. Cited by Mr. B. Shaw in Contemporary Review, Vol. I., p. 19. The argument is stated at length by Dr. A. J. Stephens in the " Second Eeport of the Eitnal Commission," p. 342. t " Case of Dr. Hampden," p. 211. (Bell and Daldy.) 39 that the ancient canons subsist as law " without provision made for " the previous authorization by the King " under s. 7. The Report says (p. xxxvi.) : — " The King's Ecclesiastical Laws not less than (!) the Canon law, were " administered by the Ecclesiastical Courts. Both were, where they did " not conflict, of equal validity, and, where they did conflict, the Statute " law over-ruled the Canon." * Why ? If the jurisdiction were independent, as the Commis- sioners assert, why should the Spiritual Court ignore its own Canons, seeing that they were of " equal "validity? In the "Hist. App." it is explained (p. 45, col. i.) that the phrase " King's Ecclesiastical "Laws" meant merely statutes and Royal injunctions in contra- distinction to canons. This is called " Legal History ; " but the "language of the Statutes" needs a good deal of "limiting" before it can be made to fit. Language of the Statutes as to the "King's Ecclesiastical Laws." a.d. 1535. 27 Hen. VIII, c. 20. Parson may convent " by due " process of the King's Ecclesiastical Laws of the Church of England." "According to the said Ecclesiastical Laws and Statutes of the " Bealm." (Stephens' "Ecclesiastical Statutes," 195.) a.d. 1548. 2 and 3 Ed. VI, c. 1, sec. , 12. " Excommunication and " other censures by the King's Ecclesiastical Laws." (Report, p. 222.) a.d. 1548. 2 and, 3 Ed. VI, c. 13, sec. 13. In " King's Ecclesiastical " Court " the " King's Ecclesiastical Judge " decides " according to the " King's Ecclesiastical Laws." a.d. 1548. 2 and 3 Ed. VI, c. 23. " Brings back the state of the law " to the state and order of the King's Ecclesiastical Laws " prior to a.d. 1540. (Report, 41-ii.) a.d. 1558. 1 Eliz., c. 2, sec. xi. " Ordinaries ... in their Visitation " Synods to punish by excommunication, censures, heretofore &c, as "hath been used in like cases by the Queen's Ecclesiastical Laws." (p. 231.) a.d. 1590. The Judges having been consulted in Caudrey's case, "it " was resolved . . . albeit the Kings of England derived their Ecclesias- " tical Laws from others, yet so many as were proved, approved, and " allowed here, by and with a general consent, are aptly and rightly " called the King's Ecclesiastical Laws of England, which whosoever * Contrast the statement of Blackstone : — " It appears beyond a doubt that the " Civil and Canon laws, though admitted in some cases ty custom in some courts, " are only subordinate, and leges sub grtmwte lege." (Introd., sec. 3.) 40 " shall deny, lie denieth that the King hath full and plenary power " to deliver justice to all his subjects." (Eeport, p. 164.) (Compare| 25 Hen. VIII, c. 21 ; cited above, p. 24.) _ * ; a.d. 1624. Lord Coke, speaking of " practices reputed Popish," said "the not observing the King's Ecclesiastical Laws was a matter for " our consideration." (Eeport, p. 151.) . a.d. 1676. 29 Car. II, c. 9. Abolishing "De Hseretico comburendo.'" " Nothing in this Act shall abridge jurisdiction of Protestant Archbishops," &c, but they may punish " according to His Majesty's Ecclesiastical " Laws, by excommunication, censures, &c." (Stephens' " Ecclesiastical Statutes," 623.) The instances given (p. 46) of the removal of Chancellors by the Crown, and the quotations by Lord Penzance from Lord Coke and Chief Baron Comyns (p. lxv.), further illustrate the principle that the " Reformation Statutes " and all " subsequent "statutes" alike regard all "spiritual jurisdiction " as inherent in, or "granted" to and "annexed and united " to the Crown, by the " authority of Parliament.'' This cuts at the root all theories of an " independent " jurisdiction whether in the foreign ; or domestic priests. " Historic continuity " is therefore , illegal if it goes behind this transfer, and is purely antiquarian in its interest. Before leaving this first part of 25 Hen. VIII, c. 19, we may notice an illustration of Canon Stubbs' method in " legal history." (p. 34.) He is anxious throughout to show that Convocation had a voice in all legislation affecting the Church of England. He urges (in the absence of a single scrap of evidence that the appellate portion of the Act was ever submitted to Convocation) that "there is no evidence " that the clauses 4, 5, and 6 were not laid before the clergy:", fearing that this might not be deemed conclusive, he adds that the Spanish Ambassador spoke, on March 25, of certain unnamed Acts passed by the Commons as " to-day ratified by the nobles " and clergy." (p. 105.) Feeling, that even this might be deemed inconclusive, he continues (p. 104-i.) : " The last clause (7) " seems to have been added during the passage of the Bill through " Convocation," as the document ends with the usual formula " soit " bailie aux communes " and " a cette provision les communes sont " assentez." This is how " legal history " makes itself . The"pro- " vision " in question, we are told by the journal of the Lords, was 41 per dominos imposita. (Eeport, p. 106.) Canon Stubbs suppresses the statement of Wilkins loco citato, " a ceste bille, avecune provision " annexe, les Seigneurs sont assentuz ; " and tb.e statement of Wake, pp. 478-550, that it was " made by the Lords," although (without naming him) he adopts his words, p. 34. Now it might occur to a student ^of " legal history " that a provision* made by the Lords on March 28, was unlikely to have been " forced through the Convocation " on March 25 ; and again that it could hardly be said that " nothing is wanting but the "King's confirmation " (p. 105), unless the " nobles and clergy " who are said to have then ratified it, had been the House of Lords. To make the thing smoother, Canon Stubbs then drops " the nobles " from his quotation (p. 34), and says the Spanish Ambassador spoke " of the clergy " as being employed in this discussion. Tet he is good enough to add that the evidence is " not decisive," the fact being that there is no " evidence " at allf except of the wishes of Canon Stubbs. It is not even certain that the Acts referred to by the Ambassador included the 25 -Hen. VIII, c. 19, which he mentions just afterwards as one which he had " forgot to mention " (vide supra, p. 33) : especially as that Bill did not, in fact, come up from the Commons till March 27th (p. 104-ii.) at which date it did not contain the "provision." Canon Stubbs says (p. 34), " It is difficult to say on what ground "the opposition could have been based," to a Revision of Canon law by the Royal Commission. If he turns to his own " Appendix IV." (p. 92, 93), ho will see where the shoe pinched. "The "Prelates replied that if the King would show them anything "unreasonable in their constitutions, they would amend it without "the interference of Laymen." Very much to the point therefore was the petition of the clergy to the King complaining of the legislation of this very Parliament (which passed both the " Re- " formation Statutes " mentioned in the Royal Commission of 1881) * This proviso did not relate to the Court of Appeal, but belonged to the earlier sections of the Act relating to Canon Law. f It is not known where Wilkins got the " Bill " which he gives " as " from the Eegister of Convocation, says Mr. Dibdin. (" Church Courts," p. 95.) 42 " Enervating the Canonical Sanctions and incurring manifest peril to the " souls of those who enacted them and of those who executed them, " notoriously and damnahly incurring the sentence of excommunication "* by Statutes ..." to the, mating of which they (the Clergy) have not con- " sented by themselves nor by their proctors, nor have they teen consulted " concerning the same." With what fairness then can it be said (p. 34), " It seems most " probable, on the analogy of the King's other proceedings at this " date, that in some shape or other (!) the consent of the clergy was " given to this Statute as a whole.'" As to the second part of the Statute 25 Hen. VIII, c. 19, its wide-sweeping language giving to the Delegates " all manner of " appeals of what nature or condition soever they be of, or what " cause or matter soever they concern . . . any usage, custom, or " prescription to the contrary notwithstanding," is so comprehensive that even the " Draft Report " admits (p. 39-ii.) that it " extends " the subject-matter to all matters on which appeals could lie." In copying the context (at p. xxix. of the Report) the Commissioner^ have eliminated this admission. Why ? They only allow that it extended the "'process " of 24 Hen. VIII, c. 12, to other subjects. But that is completely inaccurate. No " process " was created by 24 Hen. VIII, save in the matter of the King's causes, and this so far from being extended to any other matter, " does not appear ever to have been exercised " (p. xxix.), being " superseded by the Act of the following year." (p. xxxvii.) The same "process" in all matters went on as before the "Re- " formation Statutes," which only provided a new Court of Appeal, and, as we have seen, placed the whole "spiritual" jurisdiction on the foundation of Royal supremacy, i.e., of the national will expressed through its " Supreme Head." The Commissioners had half-committed themselves to a theory (at pp. xxv. and xli.) that heresy cases were never allowed to be appealed even from the Diocesan Court to the Arches. The Hon. C. L. Wood had "ventured to point out that if there had "been an appeal from the Bishop to the Archbishop's Court * " Sanctiones canonicas enervantinm '■ . . . " sententiamque excommuni- "cationis notorie et damnabiliter incurrendo." This "cursory observation'' is omitted by Canon Stubbs. (p. 92, ii.) 43 "in regard to strictly spiritual matters, there -would also have "been an appeal from the Archbishop's Court to the Roman " Curia " (Q. 836), and Canon Jenkins (Q. 2895) admits that the appeal " ab Archiepiscopo " given in the Reformatio Legum " looks "as if there had been an appeal previous to that." This seems reasonable, since the Report tells us that from the Conquest "the " sentences or authoritative answers to questions delivered by the " Pope " were " laws of the Church of England " (p. xviii.) ; and again (p. xxv.), that the definitions of Archbishop Courtenay, &c, against "Wycliffe were the standards of heresy. For these not merely defined transubstantiation, but made it heresy, and not mere error, to say " That if the Pope is under a decree of reprobation, an "ill man, he has no authority over the faithful;" or "that all " Christendom ought to live independently, like the Greek Church."* Clearly the burthen of proof lies on those who deny that there was an Appeal to the Pope in Heresy, when trumpery squabbles about elections (Q. 1123) confessedly went to the reputed Head of the Church. A glance at the Index, page 91, under the head " "Was heresy appealed to the Pope ?" will show what the evidence was on this point. It is difficult to believe that Canon Stubbs can seriouslyf suppose that the Pope was not held to be the ultimate referee, when he himself tells us (p. 54) how "Wycliffe was tried by " Judges Delegate named in the Pope's bull," a.d. 1377 ; how, at request of the Archbishop, Bishop Buxton was reserved " until the " Apostolic see Should determine about him," a.d. 1384 ; how Convocation in June, 1425, appointed a Proctor, "pro parte cleri " to appear in the Court of Rome against Russell, who had appealed to Rome, and "granted a farthing in the pound for expenses " (p. 63) ; in the case of Bishop Pecock, 1457, Canon Stubbs tells us (" Const. Hist.," 11-317) that " the Pope was requested to deprive i " him." This fact for some reason he omits to place in his ' Table, ' p. 68,' although it was brought in evidence by Mr. Droop (Q. 2494). Lastly, how the Papal Legate Wolsey sat in the Province of * Collier, III-158. : j It is still more difficult to excuse his suppression of the fact brought to notice in evidence (Q. 2191-2) that by Canon Law the victims were to be burned rinsT, " the appeal being postponed." The absence of appeals is thus sufficiently 1 accounted for. {See Index, p. 91) 44 : Canterbury, with the Archbishop of Canterbury for his Assessdr^ a.d. 1527, to try Bilney for heresy, (p. 68.) But after all, it is quite immaterial to the inquiry what was the pre-Reformation use, because, as has been seen (supra, pp. 25, 37), the King's appellate jurisdiction was not limited to that formerly usurped by the Pope. So also, at p. 47, it will be seen that 25 Hen. VIII, c. 14, didmoi render c. 19 inapplicable to heresy/; The notion that only matrimonial suits went to the Pope was confidently put forward by the Hon. C. L. Wood, but was repudiated by Canon Stubbs, upon whose authority he professed to rely, but whose language is inconsistent with itself. (Compare Q. 1128 with p. 31-i. of his " Draft Report.") A more plausible objection was the suggestion that the appeal given by section 4 being " for lack of justice " was merely analogous to the appel comme d'alus ; but this is refuted by the " language of the " statute," which assigned the Delegates to " definitively determine " every such appeal with the causes and all the circumstances:} " concerning the same ;" or, as the parallel Irish Act 28 Hen. VIII, c. vi, expressed it " and in the principal matter and in all the cir- " cumstances and dependents thereupon." (Stephens' "Eccl. Stat.," p. 204).* It was pointed out by Dr. Phillimore (Q. 1374) and by Sir R. Phillimore (Q. 6946) that prohibition rather than appeal^ is the true analogue of the appel commie d"abus. Lastly, the objection that Heresy did not go to the Delegates, because such cases were taken to the High Commission Court, is urged (p. 47-i.) ; but it fails in three respects. First, it proves too much, for all ecclesiastical courts were similarly interfered with; as Bishop Hacket is quoted (p. 185, note) to prove that the Diocesad Courts ' " Became in a manner despicable, because the matters belonging tff " every diocese were followed before the High Commission. That it might " be said to the neglected prelates at borne, Are ye unworthy to judge the " smallest matters ?" (Compare p. xxxiii., line 22.) Secondly, the absence of the records of heresy cases before the * Audley writes to Cromwell, August H, 1535, and calls the draft of this Bill " the Act for the appeals in all spiritual matters." (" State Papers " Hen. VIII 1830, .Vol. 1-139.) 45 Delegates is thus accounted for by Mr. Rothery (whose return is the basis of all our knowledge (p. 188) :— " Considering the scanty materials from which the earlier periods of "the return have been compiled, the fact that no instance has been " found of an appeal to the Delegates in a doctrinal case prior to the year " 1660, can hardly be -taken as a sufficient proof that no such case came " before the Court. . . . The records of the sixteenth century are almost " entirely wanting." But that does not entitle us to fill them up with imaginary "legal history." One hundred and ninety-three cases in which doctrine and discipline were concerned came before the Delegates between 1568 and 1838, and Canon Stubbs admits that — " So long as the Court of High Commission existed no case was " likely to reach the Court of Delegates, even if right of appeal from the " Archbishop's Court to the Delegates were likely to be recognized." (p. 50-52.) Thirdly, we have in the case of Lambert (a.d. 1538), before mentioned (p. 9) , proof that the King's Delegates did hear appeals in Heresy from the Archbishop's Court when 25 Hen. VIII, c. 19, was recently enacted. The " legal history " of the High Commission Court is simply that under the Tudor monarchs so many of the Bishops were at first hostile to the Reformation and at a later period were secretly conniving at irregularities, as to necessitate extraordinary " visita- " tion " on the part of the Crown. The High Commission Court being a court of first instance, without appeal, and backed by the Government, its process was swift, and it is not wonderful that the Delegates should for a time have been little heard of, seeing that " more than one third of the whole number of appeals were " discontinued or abandoned," owing to the vexatious delays of that court. (Rothery's Return, p. 183.) The causes of these delays should be studied in Mr. Rothery's Return, because, as will be seen hereafter (p. 63), Canon Stubbs sought to reproduce in the proposed Court of Appeal the dead-lock system which died with the Delegates. 46 25 Hen. VIII, c. 14 (March 30, 1534. Repealed ly 1 Edw. VI, c. 12, a.d. 1547), ' ■which provided for increased activity in the burning of Heretics, may hardly seem a " Reformation Statute." Yet it mitigated the iniquity of the older processes which are glossed over under the name of " Canonical Sanctions." (p. 40-ii.) The same phrase was adopted by the Commissioners, p. xxxii., to hide the " inquisitorial' " process," as the Royal Commission of 1832 called it. The description there given (p. 202), is expressed in more homely fashion by the complaint of the Commons (p. 103) : — " Calling them " to courts ex officio and not knowing their accusers, causing them " to abjure, or else to burn them for pure malice, taking tithes and " offerings contrary to justice, and being judges* and parties in " their own cause." In 1532 the Commons had complained of " subtle examinations in heresy by which men are beguiled into " error and heretical statements." (p. 90.) And this renders it probable that the complaint of the clergy that they were " not " consulted in the making of the statutes " of 25 Hen. VIII related to tTiis Bill, since that complaint expressly names the " ener- " vating the canonical sanctions " by Statute. (See above, p. 42.) Hence, it is also probable that the twin Bill, 25 Hen. VIII, c. 19, which came up from the Commons, and also was ratified by the King, on the same day with 25 Hen. VIII, c. 14, came under the same clerical; condemnation. " There is no reference (in 25 Hen. VIII, " c. 14) to the right of appeal or to any right of discretion as to the " issuing of the royal writ 'de hasretico comburendo,' " says Canon Stubbs. (p. 34-i.) The reason is obvious ; by the companion measure 25 Hen. VIII, c. 19, f these defects had been neutralized by providing * In 1515, King Henry had told the clergy, "As for your decrees, we are well " assured that you of the Spiritualty. . . interpret your decrees at your pleasure." He refused the appeal to the Pope, urged by the Spiritualty in this case (Dr. Standish's), which they deemed one of Heresy. (Burnet, I-i-34, and Bp. Gardiner's Oration, published by Longmans, p. 20.) t That these two Acts were regarded as dealing jointly with Heresy is probable, too from Audley's letter to Cromwell on the proposed extension of them to Ireland : " I have left the Act of Heresy and the Act of the Submission of the " Clergy for this time ; for I think it is not necessary for that land ; for the Statute "of King Henry IV, in cases of Heresy, was neyer put in execution in that land, " as I am informed." (" State Papers" of Hen. VIII (1 830), Vol. I., p. 441,) 47 an appeal in all causes from the Bishop to the Archbishop and from him to the Delegates. Without this provision, the complaints of the Commons — with whom both measures originated — would not have been met ; and if the Commissioners are right in following Canon Stubbs in his strange notion that heresy could not have been appealed before 1534, even into the Arches, from any petty diocesan consistory {supra, p. 42), although it was a question of life and death as well as of theological difficulty — yet, even so, the 25 Hen. VIII, c. 19, should have been gratefully recognized by a "legal "historian" as putting an end to the "historic continuity" of a practice as cruel as it was unreasonable. 25 Hen. VIII, c. 20. (a.d. 1534. Annates, p. 210.) This Act like the 23 Hen. VIII, c. 20 hardly deserved a place among Statutes to be reprinted by the Commission as bearing on " Courts." It provides that Deans and Chapters shall " elect " under penalty of praemunire the person named by the King who, if they fail to do so, is to present by Letters Patent. And a like penalty of prcemunire against any Archbishop or Bishops who refuse to consecrate. 25 Hen. VIII, c. 21, before quoted (p. 24), is ignored by the Commissioners. Sir Thomas Audley, a layman, being the Lord Chancellor, it is pro- vided that an Injunction in Chancery shall issue, if need arise, to compel the Archbishop to grant licences, &c. 26 Hen. VIII, c. 1. (November 17, 1534. Supremacy Act.) This short Act the Commissioners forbear to print; yet they build much upon the supposed contrast between the " Headship " herein claimed and the " Supreme Governorship " of later times. The Act is merely declaratory, and did not enact* the " Headship " which it * " The King's Grace hath no new authority given hereby that he is recognized " as supreme head of the Church of England." Contemporary State Paper in Fronde, 11-219. Mr. Gladstone holds that this Statute is repealed : but the contrary is maintained by Stephens ("Eccl. Stat.," 177), Comyn's "Digest.," Vol. II., D. 17, ed. 1822. Dyer 98, and 4 Inst. 325. 48 said had been "recognized by the clergy in their Convocations"; but it only " corroborated and confirmed" what already " rightfully " is and ought to be." It will be remembered that the Court of Delegates and their Appellate Jurisdiction were altogether prior to this Act. The stress laid by " legal historians " on this " headship " is purely verbal, unreal, and misleading. (Compare Green's " Hist- " of England," 11-153.) 28 Hen. VIII, c. 7 .• (a.d. 1536. Attainder of Anne Boleyn), ignores the instrument drawn up by the clergy sanctioning the divorce from. Anne Boleyn more than a month after her death. This is regarded by Canon Trevor (Vol. II., p. 378) and the Hon. C. L. Wood (Q. 805 and p. 42) following herein Mr. Joyce,* as a trial under 24 Hen. VIII, c. 12, forgetting the pertinent fact that Queen Anne was beheaded May 19, 1536, and Convocation did not meet till June 9. (p. 112.) 31 Hen. VIII, c. 14. (a.d. 1539.) The notorious " Six Articles' Act " rehearses the assent of the " Clergy in their Convocation." No need here of " legal history/.' to supply that which is lacking, (p. 117.) 32 Hen. VIII, c. 26 (a.d. 1539), is misrepresented by the Commissioners (p. xxvii.) as " the Kiig " acting with the advice of divines." Mr. Valpy, however, had pointed out (Vol. II., p. 299, col. ii.) that the recital of the Act specifies His Majesty " with the advice of his most honouraT|§ " Council and such as His Highness hath appointed or shall from " time to time appoint." This makes it clear that the clerically draf tedf formulas had to be submitted to and accepted by the Privy * In his "Sword and Keys" (p. 133), for which "the thanks of the Com- " missioners were conveyed to Mr. Joyce. " (p. 5.) ( f Even the Drafting was not necessarily by " Archbishops, Bishops, and Doctors " now appointed," for the Act gave the alternative " or other persons.'' So in 49 Council, or by a Royal Commission before being " decreed." "Legal History," it seems, preferred to ignore this fact. (p. 35-i.) 34 and 35 Hen. VIII, c. 1 (a.d. 1543), euphemistically described (p. xxxi.) as "an Act for the advance- "ment of true religion," but really directed against Tyndale's translation of the New Testament into English, was " mainly based " upon a resolution of Convocation." (p. 35-i.) It allowed in lieu of the Ordinary and Judge, two of the King's Council, (p. 40.) 35 Hen. VIII, c. 5. (a.d. 1543. Amending " Six Articles' Act.") Canon Stubbs notices the "presentment by jury" (pp. 40-ii.), but omits to mention that of the two Commissioners appointed by the Act " one of them to be a Lay person." 37 Hen. VIII, c. 17. (December 22, A.d. 1545. Lay and Married Men to be Spiritual Judges.) In 1542 this measure had been thrown out by the Bishops (p. 128), but in 1545 it ran through Parliament in a week. (Report, p. 35.) [Compare Stephens' "Ecclesiastical Statutes," 288.] Being a short Act and dealing directly and exclusively with the " constitution and working of the Ecclesiastical Courts," it is not printed by the Commissioners. This is the more to be regretted because both the Report (p. xxviii.) and the Draft (p. 39) in citing it, omit the words italicized in the following passage : — " All and singular persons, as well Lay, as those that be married . . . "which shall be made .... Chancellor, &c, by Your Majesty . . . " or by any Bishop . . or other person, having authority under Your "Majesty . . to make any Chancellor," &c. the State Paper, quoted by Froude (11-220) it is said, " if any of the doctors of "the Church, or the Clergy have, by any of their laws or decrees, declared any " Scripture to be of that effect, Kings taking to them their Counsellors, and such "of their Clergy as they shall think most indifferent, ought to be judges " whether their declarations and laws be made according to the truth of Scripture " or not." 4 50 Canon Stubbs admits that it "implies the possession of all "Ecclesiastical jurisdiction, and that exclusive of any inherent "jurisdiction in the clergy." A very important admission when we remember that it is under this Statute that every Chancellorship in the kingdom is now filled. He is not accurate, however, in saying (p. 39-ii.) that the Act speaks of Lay rights in Ecclesiastical jurisdiction being disparaged by " Canon Law as yet unrevised." The Act speaks of that law as "utterly abolished" ten years previously, being as the Commissioners say (p. xxviii.) " abrogated " by the Statute 25 Hen. VIII, c. 19." Canon Stubbs is very angry with it, declaring its statement of the Supremacy to be " based upon no legislative Act " (although the Act expressly mentions 25 Hen. VIII, c. 19, as the basis of the wholef enactment), and he denounces it as one of " the false preambles of " Henry's Statutes," of which " the Great Statute of Appeals" was one. (p. 37-i.) Similarly, he asserts (p. 40-i.) that the interpretation of 37 Hen. VIII, c. 17, by the Judges in Walher v. Lamb was "grounded upon an extreme- view of the Supreme Headship"; whereas the Headship is not so much as once referred to in that i Judgment. (Croke's Eeport, Car. 258.) The preamble which offends him says : — " The Bishop of Eome and his adherents — in their councils and synods " provincial, have made constitutions that no lay or married man might/; "exercise any Jurisdiction Ecclesiastical — -lest tlieir false and usurped " power, which they pretended and went about to have in Christ's Church " should decay ' . . . " which constitutions provincial . . . standing and " remaining in their effect, not abolished by Your Grace's laws, did sound " to appear to make greatly " for the Pope. Sec. 2 continues, " and albeit " the said decrees, ordinances and constitutions by a Statute made in the " twenty-fifth year of your noble reign BE utterly abolished, frustrate, " and of none effect ; yet because the contrary thereunto is not used nor "put in practice by the Archbishops, Bishops, Archdeacons, and other " ecclesiastical persons who have no manner of jurisdiction ecclesiastical " but by under and from your Royal Majesty " . . . . it enacts that lay and married men may exercise Ecclesiastical Jurisdictions, "and all censures and coercions appertaining unto "the same." Considering the importance attached by the Com- missioners to the "personal " Judgeship of Bishops, their suppression 51 of this Act which is in viridi observantid* (while they take up space with an Act relating to Primitive Methodists (p. 240), and matter relating to other private societies) marks their motive rather than pertains to their ostensible purpose. 1 Ed. VI, c. 1 (December 20th, 1547. Communion in both hinds), revived by 1 Bliz. c. 1, allowed Bishops to advise the Justices of Quarter Session who, with a Jury, took cognizance of the offences against this Act. Canon Stubbs forbears to note that this was a recurrence to the principle of Anglo-Saxon times. (.See Q. 4338.) Compare Lord Hardwick's account of the true function of Convo- cation, as advising the Legislature rather than legislating, (p. 167.) Convocation " accepted the principle of communion in both kinds " (p. 41), but it was " during the progress of the Bill through the " Lords." (p. 143.) The Lower House of Convocation, says Canon Stubbs (p. 142), largely " consisted of men who were indisposed to " the new policy, and kept silence in hopes of a possible reaction." Five Bishops voted against the Bill in the Lords. 1 Ed. VI, c. 2. (December 20th, 1547.) This Act stands in a position in " legal history " curiously parallel to that of "the Great Statute of Appeals." Both were repealed under Mary ; both were revived (viz., by 1 Eliz. c. 1, and 1 Jas. I, c. 25, s. 8, respectively) ; both were " in effect repealed " and "■superseded," as to the main purpose of their original enactment. f (See above, p. 32; Collier, V-231.) Tet the difference of treatment which they receive at the hands of the Commissioners is curious ; * This Act, which was merely declaratory of the old law, was repealed by the " Statute Law Revision Act, 1863," but subject to a proviso that this repeal "shall not affect any principle or rale of law or equity or established jurisdiction " . . in any manner affirmed, recognized or derived by, in, or from any enact- " ment hereby repealed." ■f 1 Ed. VI, c. 2, anticipated the legislation recommended by the Royal- Com- mission of 1832, as to "probates of testaments, administrations, and inventory." It was not finally repealed till 1863, by the Statute Law Revision Act. 4 * 52 the reason is found in the language of their respective preambles* {Supra, p. 26 and 35.) 1 Ed. VI, c. 12 (December 2ith, 1547. Repealing Heresy Ads), was opposed by five Bishops. (Burnet, " Hist. Bef .," II-i-81.) Canon Stubbs says Convocation " discussed the repeal of the ' Six " Articles' Act.' " (p. 41.) He does not report the result of the discussion; but Mr. Dibdin says "it does not appear that the "repeal was expressly sanctioned by Convocation." ("Church Courts," p. 23.) 2 and 3 Ed. VI, c. 1 (January 22nd, 1549. First Prayer Boole), recites that the King had appointed a Boyal Commission of Bishops and other learned men (who met at Windsor, not at Lambeth), but the Act is silent as to any sanction from Convocation.* " Foxe, who published in Elizabeth's reign, and Fuller and Heylin,t " who wrote under the Commonwealth," says Mr. Droop, " all " agree in saying that this Prayer Book was drawn up by certain " Bishops and learned men appointed by the King, and enacted by " Parliament. The records of the Canterbury Convocation were " then extant, and both Fuller and Heylin examined them. It was " only after the destruction of the records of Convocation in 1666 " that Atterbury appealed to the passage quoted from Wilkins IV- " 35, as proving that the Convocations were consulted about the " Prayer Book." Atterbury's more trustworthy contemporary, Archbishop "Wake (" State of the Church," p. 495), is silent on #he point. The original Commission had to be cut down to less than half, before the book could be got through Committee ; J and * It will be seen from Cardwell's " Synodalia" (p. 421 ), to be very doubtful whether the Henrician revision of the service book which the Lower House of Convocation asked to see (p. 143), was the first Book of Edward. f Heylin, "Hist. Kef.," 1-139; "Life of Laud," p. 307 j " Historical Tracts,'] p. 38. Ed. 1681. ' ? % "Book of Common Prayer Illustrated," by W. Keatinge Clay, p. 190 (note). 53 even then, five of its' so-called "Compilers" disliked it; indeed, Bishops Da,y, Skip, and Thirlby, were among- the eight Bishops, who voted against it in the Lords. It was utterly rejected by Bonner, on the one hand (Collier, V-342), and by Hooper on the other (" Original Letters," p. 79), and rebellions in Devon, Norfolk, and Oxfordshire attest its unpopularity. The Act gave the Bishop the same power of advising the Justices of Assize as noted before under 1 Ed. VI, c. 1. (See also supra, p. 39.) 2 and 3 Ed. VI, c. 21. (a.d. 1549.) Marriage of Priests. Nine Bishops voted against it (Burnet, "Hist. Ref.," II-i-183 ; Collier, V-304). 3 and 4 Ed. VI, c. 10 (a.d. 1550), opposed by six Bishops (Burnet, " Hist. Ref.," II-i-294), abolished ancient office books and images {i.e., Church " Ornaments") lest they should be a hindrance to the Prayer Book " of late set forth "by authority of Parliament." Offences tried before Justices. (Raithby's " Statutes at Large," 11-294.) 3 and 4 Ed. VI, c. 11. (a.d. 1550. Report, p. xxxii.) Revision of Canons. Ten Bishops voted against it ; and Collier (V-373), supposes it was because there were only two Bishops among the thirty- two Commissioners. Canon Stubbs omits to note that the Royal "Warrant • under the Great Seal was required to give them validity. (Compare supra, p. 37, and Burnet, " Hist. Ref.," II-i-291.) Canon Stubbs says (p. 42) : The Bishops complained that " by " the use of public proclamations" their jurisdiction had fallen into contempt. He gives no authority for this statement, and it is difficult to see what " proclamations " had to do with it. Burnet's account is that Parliament was unwilling " to give the Bishops any " power while the rules of their Courts were so little determined or 54 " regulated." The danger of praemunire hung still over any -who attempted to put in- use Canons -whose authority (like that of the Canons referred to above (p. 49) forbidding lay or married men to judge Ecclesiastical causes) had been undermined by 25 Hen. VIII, c. 19. Hence, Mary (March 4th, 1554), before the repeal of 25 Hen. VIII, c. 19, urged " all having Ecclesiastical jurisdiction " to boldly proceed* without fear of danger to be incurred of any such " our laws as might anywise grieve you, whatsoever be threatened " in any such case." (Card., " Doc. Ann.," 1-111.) Hence, too, the Edwardine clergy had petitioned " so that all Judges Ecclesiastical, " proceeding after those laws, may be without danger and peril." (Card., " Synod.," 11-420.) This explains the solicitude of the clergy for a revision of the Canons which should be authorized. The revision for which they petitioned was one " according to the "Statute." (Seep. 132.) The Draft omits to note this. (p. 35-i.) It was not so much reform, as power which was the object of this series of petitions. • Nor was it merely that the " Lords thought " the pretensions of the Bishops too great." (p. 42-ii.) But as the Lords themselves said, that — " The greatest part of the Bishops and clergy were still Papists at "heart; so that if power were put into such men's hands, they would " employ it against those who favoured the Reformation." (Burnet, ILi-198.) This is confirmed by King Edward's journal (in the very next • sentence to the one quoted by Canon Stubbs, p. 42) : — " Because those Bishops who should execute it, some for papistry, some " for ignorance, some for age, some for their ill name, some for all these, " are men unable to execute discipline.""!" This explains the meaning of " those that be of the best sort." (p. 42-ii.) 5 and 6 Ed. VI, c. 1. (April 14v irXetoviov (2 Cor. ii. 6), who thus "put away "from among themselves" (1 Cor. v. 13) the offender, has nothing in common with a process in Court, which fails to carry conviction to any litigant's conscience, or to be ratified by the sense of the Christian community. Surely it is time that this profane travesty of sacred things should cease. All over Europe the attempt to "play Providence" over the morals of the laity has been abandoned as a failure and something worse. Canon Stubbs tells us that King Henry VIII " made use of the anti-clerical feeling in the " House of Commons." (p. 32.) He had previously told us, in his " Constitutional History" (Vol. III., p. 523), how this anti-clerical feeling arose. It was — "Especially the ever-spreading and rankling sore produced by the " inquisitorial, mercenary, and generally disreputable character of the " Courts of Spiritual Discipline, an evil which had no slight share in " making the Eeformation inevitable, and which outlived the Eeforma- "tion, and did its worst in alienating the people from the Church " reformed." Perhaps the learned Canon is mistaken here, since it may he that by adopting the recommendations of the Royal Commissioners of 1883, the " worst " has still to come. Those who yearn to see "Discipline of the laity" restored should study the Reformatio Legvm, which provides that some of the " ancients of the parish " should be associated with the minister ; and in the " form of " receiving penitents " the minister was to " ask the people whether " they would grant his desires ; who were to answer they would ; then " the pastor was to absolve," &c. This was regarded in the sixteenth century as a return to " Church " principles as contrasted with sacerdotal autocracy, and it is on these lines, if at all, rather than in " Courts," and by " personal " judges that the " power of the " keys " may be profitably exercised hereafter. The argument pressed by the " Synod " party for having a purely 72 clerical Court of Appeal, was that " judge-made law " might sup- plement or even supersede the tradition of the Church. But this consideration is evidently a reason for providing means of legislat- ing for the Church, not a reason for confounding the functions of a judge with those of a legislator. If it be true that no suitable organ of legislating can he found, owing to Convocation having failed to gain the confidence of the laity, that does not warrant our trying to alter the law by means of Courts clericalized for that purpose. The very definition of tyranny has been said to be the union of legislative, executive, and judicial powers in the same person ; yet this is precisely what the system of "personal" Courts involves. Objections to the Commissioners' scheme may be conveniently discussed under its three heads of Diocesan, Arches, and Appeal Courts. 1. The Bishop's Personal Court is objectionable for the following reasons : — I. Himself a clergyman, elderly, and in easy circumstances, who has to " live with " his clergy, the Bishop is described in the Report (p. xvii., xxiv.) as the official "Protector* of the clergy;" but then, such laissez-faire favouritism to the clergy is unfair to those from whom he " protects " them. Canon Trevor witnesses (Q. 7554) that there is " great ill-feeling at the Bishop hushing it up and "letting a man off." (See Qq. 4081 and 7644-9.) In some cases, again, the Bishop is the " Adviser " of the churchwardens and others ' who consult him, and who act, or decline to act, upon his advice ; he is a therefore, manifestly unfit to sit afterwards as a " Judge " upon the results of that action. He is Inquisitor natus (p. xxv.)t and, as such, in cases of heresy and scandal both prosecutor and judge ! He is adminis- trator and chief Pastor in his diocese, and, as such (unless his * Chancellor Espin's anecdote, in which a Commission reported that there was " no prim& facie case," though the Spiritual Person had already been in gaol two months for an indecent assault (Q. 599), his second offence, illustrates the danger of professional bias. f Abp. Courtney, " Legate of the Apostolic See," in 1382, tells the Bishops of his Province that " by the institution of the sacred Canons, they be in their " respective Dioceses, Inquisitors of heretical pravity." — F one, 111-24. 73 •mouth be unduly closed, and his action crippled), he must be known to have committed himself publicly on the very questions litigated before him. His real strength lies in the influence and persuasion which his character and position enable him to bring to bear, but this is at once destroyed by making him the executive officer of a coercive jurisdiction " residing " in his own breast. He is a law-maker for the Church, and as such ought not to be the judicial interpreter also. He is a hardworking busy man, and as such, unable to be master of that chaotic system of archaic, obscure, and very questionable bye-laws which the scheme requires him to lay down with undivided responsibility. For, though the assessors must be creatures of his own, chosen pro hdo vice, so as to facilitate the particular decision wished for in each case, yet the dummy-assessor " has no voice in any decision."* (p. lviii.) These assessors, if Theologians, are already marked with stars and daggers in the i " Clerical Directory " so as to ensure prejudice ; while the lay-assessor is no longer to be necessarily the trained and irremovable Chancellor, but may be some amateur lawyer who may be as ignorant of ecclesiastical law as the Bishop himself, but may also be known by the Bishop to share his own views. Canon Stubbs actually claims (see 46-ii., answer 4 to question 4, p. 45-ii.) that the Bishop is free from restraint by the precedents of his own Court ! Mr. Beres- ford Hope counts that the Bishops will agree upon a " code " and " work it according to their discretion." (Q. 6432.) The legal assessor may be changed at discretion from case to case pro Jidc vice. (p. lv.) Such a Court among secular persons would be called a "packed" one.f II. — The " personal " Court has been already tried and found wanting. The reason assigned by the antiquarian witnesses for the appointment of lay-commissaries is that the " Archbishops and " Bishops " (who were at that time more numerous in proportion to the population) " had so much to do" that the Archdeacon's Court became the more popular, since the Archdeacon could be chosen for his knowledge of Church law, and had leisure to administer it. * " An assessor who, after all, has only the privilege of being disregarded, " stands in a very anomalous position,'' says Mr. B. Hope. (Q. 6350.) t So Bishop Wilberforce designated in the Denison case the very court which the Commissioners now recommend. (" Life," 11-327.) 74 " They were generally kept in deacon's orders in order that sacerdotal' "hands might not he soiled with the questionable matter that was " brought before them," says Canon Stubbs. (p. 26, i.) The Bishops were compelled very early to appoint Chancellors lest all the business should leave their Courts. (Qq. 1282-4.) So early as A.D. 1303 this was the case in the diocese of London. (Q. 3242.) Sir Edmund Beckett tells us that the Bishop for ages had no power of sitting judicially, except through his Chancellor, until (in the year 1840) Bishop Philpotts slipped into the Church Discipline' Act (the repeal of which is recommended by the Commissioners), a clause giving the Bishop power to sit instead of the Chancellor. (Q. 5634.) But this Act-of- Parliament-made Court, though both "personal" and "spiritual," has proved an utter failure ; all parties give it the go-by in order to get into the Arches Court, where no Bishop sits. So again, under the Public Worship Regulation Act there is provision made for the decision of the suit by the Bishop sitting personally ; but in not one of the nineteen representations under that Act has the clergyman consented to submit to this personal jurisdiction. (Qq. 4129 and 4482.) Mr. Mackonochie, Mr. Bodington, and Mr. Green (Q. 4182) are in evidence as having refused this spiritual and personal judge.* (Supra, p. 67.) III. — The Royal Commission of 1830-2 (on -which sat Archbishop Howley and Bishops Blomfield, Van Mildert, Kaye, Carey, and Bethel, with Chief Justice Tenterden, Chief Justice Tindal, Chief Baron Alexander, Sir John Nicholl, Dr. Lushington, and other distinguished judges and civilians) made a Report, in two parts, from one of which considerable extracts are given in the report of the present Commission, Vol. I., pp. 194-207. Dr. Joseph Phillimore, the Chancellor of Oxford, gave evidence and made an excellent suggestion, viz., to retain the "voluntary or consensual juris- " diction," i.e., in plain English, the purely administrative and ministerial part of diocesan government, adding that "it would " be of infinite advantage that the contentious jurisdiction of all the * Nor is such distrust at all new. Mr. Ffoulkes, the Vicar of St. Mary the Virgin, Oxford, said he could cite numbers of mediajval Canons " where just the " same language is used against the constitution of some of those courts in those " days as was afterwards used in the Commission of 1830." (Q. 2271.) 75 "diocesan Courts should he taken away." (Eeport, 1832, p. 152, Qq. 21, 23.) This would leave such matters as the grant of marriage licences, faculties, institutions to livings, &c, untouched. More- over, it would be easy to graft upon it the suggestion of. the Archbishop of York (p. Ixi.), viz., that with consent of both parties the Bishop might make an Order which should be binding, if not appealed against, until reversed. The same safeguard against collusion might be imposed as in " faculty " cases, and the Bishop's "discretion" be limited to points not already ruled by higher Courts. For, as Mr. Girdlestone excellently observed, " the Bishop " may and often does exercise benevolent and fatherly care .... "but when the parties have got beyond fatherly treatment — when " they appeal to justice, they are entitled to receive justice according " to law." (Q. 4080.) In other words, " spiritual " influence, properly so-called, ends where "law" and "Courts" begin. (Q. 6331.) The Eoyal Commissioners of 1832 reported that " the teans- " PEKENCE TO THE PeOVINCIAL CoUETS OP THE JURISDICTION HITHEETO " exercised by the dlocesan couets, would be a geeat impeove- "ment in the administeation op Ecclesiastical Law." In 1855 the late Dr. Stephens, under the direction of the Solicitor- General,* drafted a Bill for cutting down the fifty Diocesan Courts of England and Ireland to six. Dr. Tristram, the Chancellor of London and of Hereford, witnesses that " it would be more con- " venient that all questions of doctrine should be determined, in " the first instance, in the Metropolitan Courts, also questions of " ritual, unless both parties desire the trial to take place in the " Consistorial Court." (Q. 3321.) The reason assigned by the Eoyal Commissioners of 1832 (p. 199) was that it was then impracticable to get judges duly qualified, "with a competent bar and skilful ""practitioners," for, the "emoluments of , the judges and other " officers and of practitioners in these Courts make it impossible in " the greater number of dioceses that efficient Courts can be main- " tained . . . from these considerations it appeared to us advisable " to recommend the transfer of the whole contentious jurisdiction to * See "Correspondence upon the proposed Church Discipline and Begistry " Act, 1855," with the Archbishop of Armagh. " the Provincial Courts." The reasons which were powerful then are ten times more powerful now. (p. li.) All the testamentary and matrimonial suits have been since taken away from these Diocesan Courts : Doctors' Commons has been sold and the property • divided* (Q. 3194.) Hence some of the Priest-party advise that the clergy shall study canon law and practice at the bar of these Diocesan Courts, and for this purpose the chairs in canon law which were swept away on the passing of the Reformation Statute of 25 Hen. VIII, c. 19 (p. xxviii.), are to be restored. (Qq. 3198, 6407.) These gentlemen forget that already by 33 and 34 Vic. c. 28, s. 20, an attorney or solicitor may practice as proctor in the Diocesanf Courts : and this circumstance, together with the recommem* dation before mentioned for assimilating procedure to that of the Supreme Court of Judicature, may possibly infuse into these Courts an uncanonical element of justice and common sense. If it were true that the numbers of the clergy are so much in excess of the work- to be done, that it is desirable to find employ- ment for the superfluous members of the profession, this plan of educating clerical canonists might deserve respectful con- sideration ; but, on the other hand, there would have to be considered the danger to the clergy themselves of saturating their minds with a system of canon law which was formulated at a time when the most arrogant theocratic pretensions of the clergy found ready acceptance at the hands of an uneducated and semi- barbarous laity : when materialistic conceptions had obscured the very meaning of the word " spiritual ;" when thaumaturgic powers were believed to be lodged in the hands of the priesthood ; and when wholesale forgeries had been successfully employed as the basis of the received system of spiritual "law."J An ingenious writer in "The Churchman" Magazine based his hopeful anticipation of a good effect upon the clergy from their study of law upon the idea that the national law * "In the late financial year £55,809. 16s Id was paid to the officers of the " abolished Ecclesiastical Courts." — Times, October 15, 1883. Does not this prove the value of "historic continuity"? (Q. 4343.) f By the Legal Practitioners' Act, 1876, this has been extended to the Pro- vincial Courts. J See Janus, chapter iii. Probably the earliest . of these forgeries was the " Apostolic Constitutions." But forgery has always been a " Catholic practice." 77 of England would be the subject of their studies ; but no two things can be more opposed in spirit than the National common law of a free people and the enslaving superstitions which found expression in " Canon Law." A very curious feature brought to light in the Report is the disparagement of the merely English "canons." (See p. xxxvi, of. 144, 150.) Doubtless it is hoped that under the ruling of clerical Judges "historic continuity" will supplement what is merely " insular " and " Anglican," by what is truly mediaeval and "Catholic" (sic). * IV. — But by far the gravest blot upon the scheme of the Com- missioners is their proposal to give to individual Bishops the power of vetoing all proceedings at their individual " discretion." The most perfect system of simplified and codified law, and the best constituted Courts would be alike worthless if access to the portals of justice is to be thus barred. Beference to the Index under the head of " Veto " will show that the evidence of witnesses was all the other way. The witnesses who favoured the veto were unable to give any evidence, but substituted theories of what they Isupposed to be expedient. Instead of the clergy being surrounded, as was supposed, in every parish by loyal and enthusiastic supporters | whose sympathy might be relied on beyond what is granted to members of any other profession, these witnesses drew a picture of the clergy- as surrounded by cantankerous and malignant foes, against whom a Clerical " Judge " in the Diocesan Court was their natural protector.- Lawyers and doctors know what it is to be prosecuted for malpractice by unscrupulous and worthless people, who try to extort money ; and no one has yet proposed to " protect" them by -giving a veto upon proceedings to the heads of those professions. Tet if a Eoyal Commission could be got to listen to such proposals, no doubt many " witnesses" could be found who would urge upon them theories of this kind. In the " Church " ; alone, " Martyrdom " pays. The veto is unknown in the Isle of Man (Q. 6717), where ecclesiastical suits are very cheap. (Q. 6679.) f It is unknown also in the Established Kirk of Scotland, where " Any male parishioner may prosecute for heresy, and the Presbytery i " have no power to decline taking up the ease. And it is not necessary ;■ " that a parishioner should be in communion with the Church." — Lines' Law of Creeds in Scotland, p. 211. 78 It is remarkable that this fact is not mentioned in the Commis- sioners' account of the Scottish Establishment, (p. ix.) Frivolous suits are unknown where the law is clear, and definitely ascer- tained, and where its enforcement is swift and cheap — as in Scotland and in the Isle of Man* In England, frivolous suits might by this means be prevented ; for, as the Right Hon. E. P. Bouverie testifies, " the ordinary Englishman does not like to "put himself forward: he is a very diffident man, and does "not like to stand forward and oppose what is being done by "a man who is respected and liked in the parish." (Q. 5113.) And moreover, as Mr. Girdlestone urged, "the social and pecu- " niary dangers attendant upon an effort to obtain justice against " a clergyman are so great." (Q. 4261.) Even if it were true that clergymen, like exotic plants, need extraordinary solicitude to " protect " them, it need not be at the cost of denying justice to everybody else. At least two other plans were proposed. Mr. Droop would make the veto subject to an appeal (Q. 2645) ; and this might be either to the Archbishop personally, or to the Arches Court. Then Mr. Valpy suggested that the certificate of a barrister (of seven years' standing) that the complaint is made bona fide and relates to points ruled to be illegal, or which involve a breach of trust, should suffice. But the majority insisted upon conferring upon each individual Bishop power to dispense his clergy from obedience to the law of "this Church and realm." They say, indeed, " it is better to make the Bishop responsible " (p. liii.) ; but they are careful to provide that there shall be no one on earth to whom he is "responsible." Readers of " The Life of Bishop Wilberforce," who remember how Sir R. Phillimore was a member of that inner circle who met each day in private before the meetings of the rest of the Ritual Commissioners, and who, as the biographer tells us, " did virtually settle the Report " (" Life of Wilberforce," III-214), will notice with interest that Sir Robert never thought it worth while to attend another meeting of the present Commission after the Veto had been carried. He naturally felt that with the Veto it mattered little what the " law " or the constitution of the Courts might be. Lords Penzance and Chichester, with Dr. Deane, were Which is to retain its ancient freedom, p. Ix. 79 among the absentees at that division tipon the Veto question. Another point of resemblance to the Ritual Commission may be noted. Bishop Wilberforce's biographer records with a chuckle : " ' The judicious use ' (by the Ritual Commissioners) ' of the word "'restrain' with regard to the vestments, instead of the word ."'abolish,' or 'prohibit.' The main body of the Commissioners "failed, to perceive the elasticity of this word, which, in fact, did " leave a loophole." {Ibid.) The language of the Minute of March 9, 1883, was no less "judicious." It spoke only of "leaving it to the "Bishops to give permission to the complainant to proceed." A harmless-looking suggestion which perhaps the majority "failed " to perceive " involved the power to refuse permission. No doubt, at the following meeting, Archbishop Tait being no longer chair- man, this was ruled to have been decided, for no division took place. With how little wisdom can a great Church be governed ! In vain had Mr. Blakesley reminded the Commissioners of that article of Magna Charta, " we will sell to no man, we will deny to "" no man, nor make any difference as to justice and right." " Judg- "ment, justice, and truth," it seems, are secular matters; but I" Spiritual " judges must in future be armed with a dispensing power to condone violations of the law, committed with a high hand, and (it may be) even by public conspiracy. Mr. Valpy pointed out that in eight cases in which the episcopal Veto had shielded the wrongdoer every one of the illegal practices went on as before. (Q. 6253.) Bishops we know are peculiarly liable to backstairs' influences. Every mail brings them letters from ardent partisans, or weeping mothers appealing to their emotional susceptibilities, or conservative timidity. We are told how " Lord " Aberdeen in translating Lord Auckland from Sodor and Man to " the See of Bath and Wells, stipulated that he should neither per- " secute Mr. Bennett, nor prosecute Archdeacon Denison." (" Life "of Bishop. Wilberforce," 11-240.) We learn from Vol. III., 268, of the same valuable work, that the Prime Minister attempted to influence the " Judicial " action of Archbishop Sumner. These influences explain the otherwise startling fact that the Denison case broke down ultimately through delays occasioned by the negligences of three successive Bishops refusing in their judicial 80 capacity to administer the law of -which they -were the appointed guardians.* Apart from the pressure which a Prime Minister (himself, per- haps, a hit of a theologian) might exert, we have now-a-days an organized system of lampooning in " religious " newspapers which stir up sedition in every diocese, of which the administrator dares to do his duty. In the words of the amendment moved by the Archbishop of York, and seconded by the Dean of Peterborough, " The investing the Bishop with the unconditional power of veto on " any complaint against a clergyman would deprive the laity of the " power of obtaining a decision in case of wrong, and would lead to variety '•' of practice in different dioceses and would also be invidious toward, the " Bishop as making him practically the prosecutor in every case where " the proceedings went on." (p. 12.) " The active interference of the Bishops to prevent the law of the land " being enforced," said the Lord Chief Justice Coleridge, " is as indefen- " sible in theory as it is fast becoming intolerable in practice." He added, most justly, that this power is " more likely to he abused in proportion " to the strength and earnestness of character of those who claim it ; " finally it is one which, desiring to speak with all respect, I must think " has in fact been abused." (p. lxii.) 'No one who reads the evidence of Messrs. Girdlestone, Valpy and Howard, especially that of the first-named witness, will fail to see that Bishops cannot prudently be trusted with such unconsti- tutional and dangerous " dispensing " powers. Before quitting the subject of our numerous petty Diocesan Courts it is well to turn to the Index where, under the head of " Court of Pirst Instance " (p. 95), "Registrar's Blunders," will be found a few illustrations of the cost of payment (by fees) of this class of officials. The Rev. Chancellor Espin wishes to increase the fees of the spiritual officials by sweeping into their net the election of Churchwardens and other business belonging to the " secular " tribunals from time immemorial, (p. 17-ii.) 2. The Arches Court. The Commissioners of 1832 sugggested the fusion of the two Provincial Courts. The 6 and 7 Victoria, c. 38, sec.17 (1843), * See " Statement of the Proceedings in Ditcher v. Denison " (Hatchard) and Monthly Intelligencer for March, 1883, p. 38. (John F. Shaw.) 81 ■©mtemplated it, and its advantages are obvious. The avoidance of conflicting decisions in Courts of equal status, the improvement in the salary of the ill-paid Judge, and the possibility of having the very best man in the country, with the formation of a resident Bar, are among those advantages ; but the objections before raised to the " personal " Court apply with increased force to the Arch- bishops' Courts. " So many other qualities are of necessity to be regarded in the " choice of Archbishops," says Mr. Gladstone, "that they can very 4* rarely be the best theologians of the Episcopal Bench." (" Royal Supremacy," p. 54.) A worthy Bishop is much too busy and useful as an Ambassador of Christ to be a learned lawyer ; much less, then, can an Archbishop be fit to revise "personally," and bring into permanent reconciliation, the conflicting judgments of the Diocesan Consistories of a whole Province. One of the Com- missioners — who, as Dean of the Arches, had more of his judgments i reversed than any of his predecessors — reported that there ought to be no appeal from the Archbishop's Court, (p. lxiii.) His fellow- Commissioners had agreed with him (p. vi.) that the Dean of the Arches is "the principal Judge of the Church of England," and that the Ecclesiastical Courts were " Courts of the Church as " distinguished from the State" (whereas the Reformation statutes had described them as Courts of the " Realm," a " body politic," of which the King was "head"). The Dean of Arches, they said, had " unquestionable ecclesiastical authority, whilst his Court is to " be subject to an appeal to a purely lay tribunal." (p. liv.) This is explained (p. liii.) on the principle that " no Ecclesiastical Court " can bar the right " of access to the Throne, and on this ground alone " judges learned in the law " were to hear the appeal from "spiritual judges." This assumes that the Court of Appeal is not an " Ecclesiastical Court," hut a " Crown Court " — a foreign power, as it were — interfering with a jurisdiction not its own, but derived from another source — a doctrine which, however true, is clean contrary to the "Reformation statutes." The apologetic way in which the Commissioners palliate the profane intrusion of a ?" lay "Court shows how gladly they would minimize its control. "This is accordingly done by several provisions. Before considering them, however, the following sentence should be noted (p. liii.) : — 6 82 " The function of such lay judges as may be appointed by the Crown " to determine appeals is not in any sense to determine what is the " doctrine or ritual of the Church, but to decide whether the impugned "opinions or practices are in conflict with the authoritative formularies " of the Church in such sense as to require correction or punishment." That is perfectly true ; but it would have been equally true to have said "the function of spiritual judges is the same." All " judges," as judges, and all " courts," as courts, have the same function.* For instance, Sir H. J. Fust, Dean of the Axches, said, in FaulJcner v. Litchfield : — " As I understand the question, it is simply one of the construction of " the rubric and Book of Common Prayer, which are incorporated into " the Statute of Uniformity passed in the 13 and 14 Charles II, and of " the Canons. In proceeding to consider this statute, the Court must " proceed precisely in the same manner as it would in construing other " Acts of Parliament." — 1 Robertson, p. 198. Again, in the case of Shejppard v. Bennett, the superior Court censured the expression of "extra-judicial opinions " on theological subjects by the Dean of the Arches, remarking that " it is not the " part of the Court of Arches, nor of this Committee, to usurp the " functions of a Synod or Council." Similarly, Lord Stowell, the Judge of the Consistory Court of London, said : — "If any article is really the subject, of dubious interpretation,' it " would be highly improper that this Court should fix one meaning " and prosecute all those who hold a contrary opinion regarding its " interpretation." — 1 Haggard, p. 429. But if Clerical Judges, presiding "personally," are taught by a Royal Commission that it is the business of Spiritual Courts to " determine the doctrine or ritual of the Church " in contra- distinction to the " Lay " Court which deals only with "authori- "tative formularies," we shall soon have "changed all that." There is not a single important decision of the Judicial Com- mittee which does not contain a disclaimer of interference with the theological aspects of doctrine or ritual which come before it, and which are considered solely and exclusively as questions * See the admission of Rev. B. S. ITfoulkes (Q. 2281), and Canon Bright (Q.S49S), and the catena of "spiritual" judgments furnished by Mr. Valpy. (Q. 6305.) 83 of law ; so that in this respect the new Court of Appeal makes no change. The Commissioners propose that ''only the actual " decree should be of binding authority in the judgments . . . " and that the reasoning . . . should always be allowed to be " reconsidered and disputed." This again makes no change what- ever. The witnesses proved that this is, and has always been, the received theory and practice of the Judicial Committee (see Reeves, Qq. 6725-6734, and Beckett, Q. 5543) which has even permitted a re-hearing. (Qq. 5644, 6752.) Up to this point, then, we have seen no reason assigned (apart from the enumeration of the opinions of witnesses contradicted by other witnesses — p. v. ; and see Index, " Privy Council," p. 98) for discarding the Judicial Committee. The Report says (p. liii.), " we hold it to be essential that only "the actual decree, as dealing with the particular case, should be " of binding authority in the judgments hitherto or hereafter to "be delivered." A writer in The Churchman for December, 1883, p. 217, has called attention to the interpolation into this sentence of the word " hitherto," -which is not found in the original resolution of April 5th, 1883 (p. 14) ; which resolution is correctly cited in p. lviii. of the Report, but into it the draughtsman has contrived to introduce here* the apparently unauthorized word " hitherto " for the purpose of evacuating all " historic continuity " in spiritual matters by abolishing precedents. If this enormous change is to be introduced into English law it ought to be done in a more grave and formal manner than by an inference from a single word (interpolated, apparently, by a single individual), the force of which the majority of the Commissioners may have " failed to perceive." As Lord .Penzance observed (p. Ixvii.) — the effect would be that " no legal " principle would be asserted "or established," and that " such a " system, if acted upon for half a century, would destroy the "ascertained law altogether." t * Without providing it with any corresponding tense of the verb " deliver." t The Commissioners of 1831 recommended the Privy Council (p. 194) as the Court of Appeal because " It is usual at the Privy Council for the I" presiding Law Lord to deliver the grounds of the judgment, which, being " thus known and reported, tend to settle principles and to establish uniformity "of decision." R * 84 3. The Final Court of Appeal. The objections to the Commissioners' changes in the Appeal Court amount to this, that the changes seem to have for their object to make the control of the Supreme Court over the inferior Courts altogether nugatory. 1. They degrade the standard of qualification for its members. The Commissioners say (p. xliv.) : — " The reasons given for the abolition of the Court of Delegates are . . . " the want of uniformity in its decisions, and the silence observed by the " Court as to the grounds of its judgments. The reasons given for the " substitution of the Privy Council are chiefly the superior qualifications "of its members, the permanent existence of the tribunal, and the " publicity given to the reasons of the judgments." They explain (p. xlii.) that — " The practice was to appoint the Delegates according to a rota," and " the fact that the reasons for their judgments were not given seems to ■' have been regarded as infusing an element of uncertainty as to the '' nature of the law administered by the Court." (p. xliii.) It seems hardly credible that after giving this just summary of the recommendations of a former weighty Royal Commission, the Commissioners of 1883 should proceed to recommend every one of the condemned features as (retrograde) changes to be adopted in the new Court of Appeal. 2. The Commissioners of 1832 said (p. 193) s " The division of " opinion of a Court so constituted being known, becomes a ground " of dissatisfaction to suitors." The Commissioners of 1883 say (p. lviii.) : " each Judge shall deliver his judgment separately." The effect of dissident opinions in weakening the deliverance of a Judg- ment intended to be " final " was well pointed out by Mr. Gladstone to Bishop Wilberforce (1862) when, deprecating any individual utterances of episcopal judges, he wrote as follows : — 1. " Constitute these episcopal referees into a body ; make them not " plural but singular, by calling them a Court, Committee, or— perhaps " better— a Board. It is only as a body, not as individuals, that they " can have any good title. 2. " Whatever else happ " ' several opinions,' and I " objectionable, and almost to destroy the whole merit of the plan. It 2. " Whatever else happens, strike out ' or if they do not agree, their " ' several opinions,' and again twice ' or opinions.' To me this seems 85 " would be far better that the Court should simply throw overboard the "opinion of the whole, than that it should pretend and be authorized " to pretend to act as umpire between parts. The majority is de jure " the whole, and the President, without reference to his own individual " opinion, would subscribe, or a seal might be affixed, for the whole. 3. " I am doubtful about the assignment of reasons. If they are given " they are given to be debated. Now the opinion contemplated is in " everything but its being binding, a verdict ; it is upon a matter exclu- " sively committed to those who deliver it, and I am afraid the reasons "would weaken the authority."— Wilberforce's Life, Vol. III., p. 107. The use to be made of dissident opinions is well illustrated by the Minutes of the Commissioners' Meeting, April 13th, 1883, when the " opinion of Sir W. Erie, in the case of Martin v. Mackonochie," was presented by the Secretary of the English Church Union, (p. 15, ii.) The Minutes do not tell us whether the passage which the Rev. T. "W. Perry suppressed on a former occasion had been restored ; nor whether the letter of H. Reeve, Esq., C.B., D.C.L., the Secretary to the Privy Council, which appeared in The Guardian of January 24th, 1883, correcting Mr. Perry's mis-statements, was also submitted to the Commissioners. But the intention to detract from the weight of the Judgment in Martin v. Macleonochie can hardly have escaped their notice, and may even have inspired their recommendation. 3. In order to weaken the Court still further, it is provided that any one of the Judges may call for the opinion of the Archbishop and Bishops of the Province, (p. lviii.) " Such an arrangement it is feared would have many practical incon- " veniences. When a man is tried for contravening the Articles and ■' " Formularies he is accused of violating certain plainly written laws.- Are " the Judges who try him, it is asked, not to use their own discretion in " pronouncing whether or no he has violated these laws ? Are they to " refer to some other body to say what the written laws mean ? Is this " other body then, to make what is equivalent to new laws for the parti- " cular case, or is it simply to direct the attention of the Judges to " passages in the old written law, which they had before them when they " made the reference ? If the former, it is said, they are constituted a " perpetual Court of Legislation — a sort of General Council in, Commis- " sion, to make new laws according to the Church's emergencies. If the " latter, their office is useless, and they cannot give the assistance which i " legal Judges chiefly require, viz., advice on each point as it casually " arises in the sifting of the case, and guidance to the attainment of 86 " theological accuracy in the terms in which they clothe their Judgment. " It is fully granted that competent theological learning is necessary to " aid lawyers in the right application of Ecclesiastical laws ; but must not " such learning, if it is to be of use, be found in the Court itself which " pronounces judgment, not in some other anomalous body to which the " Supreme Court mates some undefined reference ?" — Archbishop Tait, Pre/, to Brod. and Fremantle. (p. xvi.) That this reference was designed to weaken the Court can hardly be doubted by any one who studies the evidence. Arch- bishop Tait asked (Q. 6440) :— " If the bench of Bishops met and said, * We hold a different opinion ' '•'.... it would be a very awkward state of things P ' Yes,' replied Mr. " Beresford Hope, 'if they unluckily adopted smth. form of words' " He added (Q. 6441): — " I'think the thing might be done in such a form of words " that danger might be avoided. I fully agree with your Grace in object- " ing to make a formal defiance." Again (Q. 7006), " Supposing they "made a new Canon to set at naught the judicial decision? 'I do not " ' see why they should not,' said Dean Church, 'it seems a fair right of " ' the Church to do so.' ' Convocation need not consider the latter " ' Court ?' ' Quite so.' " (Q. 7071.) Any reader of the Report who will turn to Qq. 4413, 4396, 4409, 4538, 4596, 5466, 7335, 7364, 7551, or to the " Life of Bp. Wilber- force," 11-352, will be able to judge whether this conclusion is not .inevitable. 4. Lest, however, this should not suffice, Canons Westcott and Stubbs moved, March 16th, 1883, that the Bishops should take counsel and having regard " to the circumstances of the time, to issue " such statements on subjects brought into dispute as may seem to be " required." This, with slight verbal variations was adopted in the Report, (p. liv.) "Whether the Bishops are to prejudice the case ' by fulminations while the " subject " is sub judice ; or whether they are afterwards to issue a Counterblast in the form of an Allocution urbi et orbi, so as to lash up the " faithful" to resistance, is left by the Commissioners to the Episcopal " discretion ;" but either way, its effect upon the " working of the Courts" could hardly have been contemplated in issuing a Royal Commission. 5. But the most conclusive proof that the Commissioners wish the control of the Appeal Court to be ineffective, is, that they give to it no power of enforcing its own decisions, (p. liv.) It is merely authorized to remit the cause to the Archbishop, sitting in person 87 in order that "justice may be done." And the teaching of history- is that justice may not be done. The Primate of All England and Metropolitan, sitting "in person," may not like to admit in public that there has been " lack of justice " on his own part. The Hon. C. L. Wood, President of the English Church Union, counts upon his resistance. "It is always open to the Archbishop and his " comprovincials to refuse " (Q. 937), and the Commissioners have provided no means either for compelling the Archbishop to take action, or for "justice being done" by some other "spiritual" person in his stead: yet they had admitted in words (p. liv.), that — " It is desirable that any scheme should make provision foe " compelling on theie paet obedience to the law." This " desirable " thing is not merely desirable ; it is essential to any " working " of the Courts, and the Commissioners knew that "historic continuity" would necessitate some provision like that contained in the long series of statutes, including " the Great " Statute of Appeals" (p. 2 16-ii.), all of which provide severe penalties ' j|, against the Ordinaries who neglect to execute Acts of Parliament.* Beside the penalty, the 25 Hen. VIII, c. 21 provided, " and over that ' " it shall be lawful to your Highness, for every such default, to give " power and authority, by Commission under your Great Seal, to "two such spiritual prelates or persons, to be named by your "Highness, as will do and grant such licences, faculties, and "dispensations refused, or denied to be granted by the said " Archbishop."— Stephens' Ecd. Stat., p. 168. One of the Commissioners, Bishop Mackarness, once told the House of Lords that "if by legislation Bishops were required to be the " deliverers of sentences prepared for them, some of the Bishops " might object to ,be mere machines in that way. To use a word of " the day, they might ' strike :' "f and the suggestion resulted in the omission from the " Public "Worship Regulation" Bill of the 'original provision, which was that the Judge should "report" to the Bishop, and the Bishop should " give judgment." That * Among them are 23 Hen. VIII, c. 9 ; 23 Hen. VIII, a 20 ; 25 Hen. VIII, c. 20 ; 28 Hen. VHI, c. 19 ; 3 and 4 Edward VI, c. 10 ; 2 Elizabeth, c. 4, Ireland ; 5 Elizabeth, c. 28. g: + Hansard, 219, p. 958. 88 Bill was, therefore, amended to enable the Judge to enforce his own decisions. And " historic continuity " would suggest a similar provision. For though the 37 Hen. VIII, c. 17, which regu- , lates our Diocesan Courts to this day, and was, therefore, not reprinted in the Eeport, recites that Canons forbidding lay or married persons to exercise ecclesiastical jurisdiction had been abolished, yet (says Mr. Gladstone, " Roy. Suprem.," p. 34), " the " Bishops and other spiritual persons acted at that date (a.d. 1545) " as if the disqualification had been still in force." The statement of the Act itself was, that the laws were " not used, nor put in practice " by the Archbishops, Bishops, Archdeacons, and other spiritual " persons, who have no manner of jurisdiction, but by, under, and " from your Royal Majesty." And this Judicial malversation of trust, it will be observed, was long after the Spiritual Persons had themselves publicly forsworn allegiance to the Pope. " The thing that hath been, is that which shall be." " History," of which Canon Stubbs is a Professor, " is Philosophy teaching by " examples." The Commissioners have shown how easy it is to exchange the Jurisdiction " AS modified by Reformation Statutes," for the " Whole Fabric " which was then so modified, and whose history they find it to " include." (p. xvi.) It will go hard, but our Priest partisans shall better the instruction. "We seem to hear the coming footsteps of the successor of S. Thomas of Canterbury, who shall haughtily defy the " Lay " Court of Appeal, which the Commis- sioners have rendered contemptible : and it may be that future Historians who chronicle the triumph of the " Church " over secular laws and institutions will trace the beginnings of the change to the " Report of the Royal Commissioners on Ecclesiastical Courts, " 1883." ANALYTICAL INDEX TO THE EVIDENCE OF WITNESSES CONTAINED IN VOL. II. OF THE COMMISSIONERS' REPORT. 1.-LAITY Are the "Holy Church," Milton, Q. 1470. " Assent to canons when they apply to Ecclesiastical Courts," Shelley, p. 137. " Canvass and cook" Lord A. Compton, p. 206 ; the House of Commons being void of " personal knowledge and professional experience," p. 207. Compromised by worship more than by teaching, Beckett, p. 261. Doctrine, but not creed, may be consulted on : — Hubbard, p. 152. Heygate, p. 216. Liddon, p. 362. " Go a mile off," if discontented, may, Bayley, p. 164. Imprisoned by the " Prince " for the " Church," should be, Phillimore, p. 80, Qq. 1869-72. No promise of Holy Spirit, have, Lord A. Compton, p. 201. Not authorized to go to Bishop by preface to Prayer Book, Compton, p. 119. ■ Not equal before the Bishop, Girdlestone, p. 173. "Nowhere " and " have no rights," Miller, p. 249. Ought not to object if Priest celebrates Mass, Q. 6823, Rev. G. Sarson. creeps to Gross, Q. 6823. withholds cup, Q. 6838. has Jewish Passover, Q. 6851. all by way of " experiment and development," Q. 6854. 90 Persecute the " Church," said to, by Lord A. Compton, p. 200. Proper subjects of Ecclesiastical Courts, are the, Wood, p. 54 ; cf. Report, pp. xxii., xxiv. Safeguard of Commission of 1840, were the, Lee, p. 19. Voice in elections, have no, Mackonochie, p. 283, Q. 6133, yet ought to have veto on admission of incumbent, p. 286. Voluntary Councils won't work, Oakley, p. 108. 2— ENFORCEMENT OP SPIRITUAL SENTENCES. Burning useful to " convert " : — Canon Stubbs, p. 49, Q. 1142. Phillimore, pp. 81, 84, Qq. 1902, 1955=" recant." B. Compton, Q. 2702 ; cf. Q. 2871. " Church " calls on " Prince " to coerce : — PhiUimore, p. 80, Q. 1869. B. Compton, p. 118, Q. 2670 ; p. 121, Q. 2764. Deprivation should precede imprisonment, Girdlestone, Q. 4165, and would render imprisonment unnecessary if " the Bishop required his Licensee to do his duty." (Ibid.) Deprivation, summary, for Contempt, Girdlestone, p. 192. „ after six months, for contumacy, Valpy, Q. 6253. ,, to disqualify for preferment until Submission, Valpy, Q. 6253. Excommunication, only by Priests, Phillimore, p. 81, Q. 1889 ; yet only by sentence of ' Court-" Judex," pp. 82, 84, Qq. 1923-7-8. Excommunication cannot be stopped by Grown, Phillimore, p. 59, but see per contra, Report, Vol. I., p. 28, col. i. ; and pp. 165, 167; and p. xxvii. Imprisonment inevitable : — Moore, p. 13. "Wood, p. 34. Phillimore adds, especially for laity, Q. 1872. Imprisonment among Soman Catholics : — Ffoulkes, p. 101. Droop, p. 112. (Compare Vol. I., p. 109.) " Prince " has no option, p. 122, Q. 2764 ; of. Jenkins, p. 126. 91 Moore, p. 7. Egerton, "after three months," p. 144. 3.— WAS HERESY APPEALED TO THE POPE? Undoubtedly •" — Droop, pp. 94, 95. Ffoulkes, p. 98. No appeal was ever statutable, Ffoulkes, Q. 2254. Wilfrid appealed in doctrine, 7th century, Ffoulkes, Q. 2250. Other cases given by Ffoulkes, p. 98-ii. Droop, Q. 2511 and p. 113. Harrison, Q. 5388. Cardwell, Vol. I., p. 37-ii., note. Appeals to Pope rare, because : — 1st. Appellations postpositd, Droop, Qq. 2191, 2192. 2nd. Victim burnt first. (Ibid.) 3rd. Appeals to Council had supplanted them, Ffoulkes, Q. 2253. 4th. Papal schisms, Stubbs, Vol. I., p. 30-i. ; of. Report, xxvi. Pope's Legate = Pope •:■ — Fremantle, Qq. 2079-86. Droop, pp. 94, 95. Jenkins, Q. 2881. "Sentences of Pope" forming part of our "Laws," Report, Vol. I., p. xviii. Appeals said to be only matrimonial, Wood, Q. 805 ; Rebutted by Stubbs, Q. 1123. Appeals said not to lie from Diocesan Court, Qq. 834, 836. (Compare Report, pp. xxv., xli.) Appellatio db Archiepiscopo in Reformatio Legum implies previous appeal to Crown, Jenkins, Q. 2895. • • Appeals rendered rare by High Commission Court, Phillimore, Q. 1431. (Compare Rothery, Vol. I., p. 188, ii.) Heresy not tried in Court at all, Report, p. v. ; so Wood, Q. 825 ; yet two cases before Chancellor given, Vol. I., p. 68. Nor in Bio san Synods, Canon Bright, Q. 5433. 92 4 —INCONSISTENCIES OF PRIEST-PARTY. Admit that Canons I and II sanctioned Delegates, Body, Q. 3707. Appealed to a Jew, in Prestbury Case, Girdlestone, Q. 4292. (Compare Brod. and Fremantle, p. 158.) Appealed to Privy Council in Denison case against the " Spiritual " Court proposed by Commissioners, Girdle- stone, Q. 4176. Appealed to Privy Council in Exeter Reredos Case, Q. 3099. Approve fusion of two Provincial Courts : — Hubbard, Q. 3468. Egerton, Q. 3345. Beckett, 5608. Condemn Judgments rather than Court ; — Hubbard, Q. 3512. Oakley, Q. 2449. Compton, Q. 2768. Beckett, Q. 5504. MacColl, Qq. 6541-4, 6576. Preferred .fay-Delegate to the two Archbishops, in Grorham Case, Foulkes, Qq. 2234, 2329. Refuse to obey Bishops " personally ": — Mackonochie, Qq. 3438, 3450. Bodington, Q. 4126. Green, Qq. 5976. , Say there has been "no Court since Reformation" : — Body, Qq. 3546, 3649, 3570. Littledale, Q. 4865. Mackonochie, Q. 6105. Cf. Phillimore, Q. 6948. Miller, Q. 5241, a.d. 1745. Shelley, Qq. 3142-5, 3158. Heygate, Q. 4587. Church, Qq. 6947-8. Wood, Qq. 870, 971. Want Court " not simply of Man," Body, Qq. 3570, 3649. 93 5.— THEORIES AS TO "SPIRITUAL" COURTS. I. Bishops alone : — Bright, p. 257. Compare Stubbs, Vol. I., p. 45, col. i. = Archbishop in Synod, not Synod, so Report, pp. v. and xvii. Bishops as "Experts :" — Littledale, p. 227, Q. 4845.- Wilkinson, Q. 1832. LiddoD, (?) Q. 7351. Bishops not as Experts : — Phillimore, p. 57, Q. 1351. Lord A. Compton, Qq. 4429, 4454, 4457. Bright, p. 258. Presbyters to vote as eo- Judges : — B. Compton, pp. 120, 123. Littledale, p. 228. Presbyters not co- Judges : — Wood, p. 33, Q. 889. Bright, p. 257. Trevor, p. 373. Presbyters, their Assessorship : — " Ancient and Catholic," Lord A. Compton, p. 210. Tet mischievous, Littledale, p. 229, Q. 4894. Diocesan Synods not Primitive Court for Heresy. Bright, p. 257. Synods not Courts : — Wood, p. 28, 36. Phillimore, " doubts," p. 51 ; cf. 56, 57, 83 (where 23 Henry VIII, c. 9, is misrepresented). Synods only from TVth Century : — Jenkins, p. 127. Bright, p. 257, Q. 5433. Synods = Counting Noses : — Berdmore Compton, p. 124, Q. 2845. Courts not Synods : — Ref. Legum, p. 33. Stubbs, p. 48. Pfoulkes, p. 99, Q. 2265. Droop, p. 114. 94 Elected Bishops " essential :" — Philjimore p. 82, Q. 1911. Mackonochie, p. 283, Q. 6132. To be ultimately " Pan- Anglican," Oakley, p. 110. Convocation, viz., Upper House : — Stubbs, (?) p. 50, 51. Miller, p. 249. Convocation, both Houses : — Phillimore, (?) p. 84. B. Compton, p. 120. Shelley, p. 137. , Littledale, p. 230. Church, p. 350. Convocation, Qy. as to Lower, "Wood, p. 39 ; but see 44-ii. and 46-ii. England, " unique," B. Compton, p. 120. All coercive jurisdiction illegitimate, Mackonochie, p. 284 ; of. Jenkins, Q. 2931. No appeal to Crown, Wood, p. 35. The " great thing " was to avoid Crown, Jenkins, p. 127, who proposes a Congregation of Rites, p. 128 ; cf. Espin, Q. 703. 6.-COURT OF FIRST INSTANCE. "Forum Domesticum" = no "forum" at all: — B. Compton, Q. 2719. Girdlestone, Q. 4174. Secrecy objectionable : — Tristram, Q. 3263. Girdlestone, Qq. 4069-77, 4212. Tinder Act of 1840 the Preliminary Committee : — BAD. Lee, p. 17-20. Acquitted a man in gaol, being a " spiritual " person, on ground of no " primd facie evidence," Espin, p. 22. Ditto, with three Assessors under Sees. xi. and xii., dead : — Moore, p. 9. Of. Denison Case, ibid. 95 Espin claims three cases, one of which appealed ; hut he sent np his only Ritual case, p. 26; cf. Report, p. xlvi. Bishop's Court unpopular till Chancellor appointed, PhilHmore, p. 55. Bishop's "Personal " Court disappeared in London, since a.d. 1303, Tristram, p. 140. Bishop without Priests at " lis own peril" B. Compton, p. 123. Bishop is "protector of the clergy," Report xvii., xxiv. ; cf. p. 22, Q. 597; Hence "secrecy," Lee, p. 15, Qq. 325, 383, 423 ; Trevor objects to this secrecy, p. 375. Bishop is " Inquisitor Natus," Stubbs, Yol. I., p. 29, col. ii. Bishop "works " Ritual '' according to his discretion," Hope, p. 309. Bishop has no " discretion " except in things doubtful, Girdlestone, Qq. 4046, 4204, compare Bishop Selwyn, p. 176, col. i. Lay- Chancellor permissible : — Hope, p. 308. Church, p. 349. MacColl, p. 312. Lay- Chancellor not permissible : — Heygate, p. 215. " Would be disobeyed," by Canon Law, p. xix. ; Report, pp. vi., xviii. I/a^-Chancellor may excommunicate, Report, xxvii. ; cf. xx. and Vol. I., p. 26-ii. Lay- Chancellor may " Visit," Phillimore, p. 55. Registrars' Blunders : — Tristram, p. 141 and 143. Oakes, Q. 5882. Girdlestone, p. 186, 192. Valpy, p. 290. Howard, p. 381. " Great people," Beckett, p. 263, Q. 56] 4. Veto " Unconstitutional," Blakesley,p. 60, "Nulli Negabimus " Reduces National Church to Congregational Sect. Inskip, p. 218. " Unprecedented," Lord Cairns, p. 302. Illegalities persist in eight cases, Valpy, p. 291; Girdlestone, p. 171 ; Howard, Qq. 7702-3. 96 " Saves us from everything," Church, p. 351. Yet he admits " it does not matter much," Q. 6913. Dangerous : Girdlestone, Qq. 4147, 4152, 4158. Abuse of Veto, evidence excluded by Commissioners, Girdlestone, Q. 4116 with 4166, 4333-4. Unknown in Isle of Man, Gell, p. 320. Veto should be subject to Appeal, Droop, p. 116, Q. 2645. " Frivolous suits," not known to Blakesley, p. 70. Bouverie, p. 240. Girdlestone, Q. 4098. New scheme not to apply to Diocesan Court in Isle of Man, I-15-ii., or Channel Islands. 7.-CONVOCATION. Not " Spiritual," Milton, p. 67. Appeals to, Historical Genesis of, Stubbs, p. 49. " Not a Court of Appeal " ruled in Whiston's Case, Valpy, p. 303. Combines Legislative with Judicial functions : — Littledale, p. 230. Liddon, p. 365. Per contra, Seely, p. 250. As Legislature, Co-ordinate with Parliament, Littledale, p. 233. Consented to Bill of Attainder of Ann Boleyn, Bouverie, p. 242. Archbishop's Jurisdiction reserved by 23 Sen. VIII, e. 9, without Reference to Convocation : — Valpy, p. 298. Droop, p. 115. Doctrine of Coke Examined, Droop, p. 115 ; compare Stubbs, Vol. I., p. 45-ii. Convocation not in R&pyngdon's and Hereford's Cases, Droop, p. 111. Not in Lord Cobham's Case, Jenkins, p. 135. Not Seat of Jurisdiction when Sitting with Archbishop, Stubbs, Vol. I., p. 45-ii. ; Jenkins, Qq. 2866-78. (See Synods.) 97 8.— CROWN COURT OP APPEAL. Bound by the Bishops ? — Fes— Hubbard, p. 152, Q. 3525. Lord A. Compton, p. 199, Q. 4390. Trevor, Qq. 7518, 7540 (p. 373). B. Comptou, p. 118. Cowie, p. 214, Q. 4538. Liddon, Qq. 7335, 7341. (This view finally rejected by Commissioners, Vol. I., p. 14-i.) No— Oakley, p. 106. Mixed Lay and Clerical : — " Best "— Egerton, p. 147. Tristram, p. 140, Qq. 3248-9. B. Hope, p. 308. Beckett, p. 260. " Worst "—Liddon, p. 362. Trevor, p. 373. Phillimore, p. 61. Cowie, p. 213. MacColl, pp. 312, 315. Church, p. 348. Appel Comme d'Abus not analogous to Appeal but to Prohibition : — Phillimore, p. 58. Church, p. 349. Compare Stubbs, Vol. I., p. 39-i. Appel Comme d'Abus rejected by Commissioners, I-13-i. ; cf. 14-ii. Appellatio ab Archiepiscopo in Reformatio Begum implies previous Appeal to Crown, Jenkins, p. 126, Q. 2895. [Appeal to Crown only open to Defendant (Ainslie, Vol. I-16-i.).] Dean of the Arches should be one of the Quorum. Tristram, Q. 3224. . 9— CROWN. " In Commission,'' Theory approved by : — Dibdin, p. 371. Archdeacon Harrison, p. 253. Rejected by Milton, p. 34, Q. 913. fv 98 Heard Spiritual Appeals direct from Bishop's Court (up to A.D. 1636), in Isle of Man. Gell, p. 332. Person of King : — Cowie, p. 214. Church, p. 348. This View out of Date, Wood, p. 43, col. i. Persona Mixta, belongs to 5th Century : — Bright, p. 259. Ex. gr. Czar, p. 364. Persona Mixta, Maintained by Milton, p. 66, Phillimore, p. 81. Persona Mixta Rejected by Dibdin, p. 371 ; Heygate, p. 216. Meaning of "Persona Mixta" Unknown to Stubbs, p. 48. Source of Authority of " Spiritual " Court : — Ffoulkes, p. 97. Egerton, Q. 3408 and 3422. Bouverie, p. 242. Compare Lambe, Dean of Arches (a.d. 1636), p. 190 in Vol. I. Not Source : — B. Compton, p. 123, Q. 2833. Body, p. 154, " not of Man ;" cf. p. 156. Heygate, p. 216. Mackonochie, p. 280, 284-5. Church, p. 350. Trevor, p. 377, Q. 7610. Phillimore, p. 55, Qq. 1304-5, 1419 ; Stubbs (?), Vol. 1-40, col. ii. Unknown whether Source or not, Stubbs, Q: 1103 ; cf. Espin, Qq. 657-8. Does not Appoint all Secular Judges, Phillimore, p. 401. 10— PRIVY COUNCIL. " Admirable" for Legal Questions, Oakley, Q. 2411. Not disapproved by Egerton, p. 145, 146. " On right lines," Archdeacon Harrison, p. 253. Approved by InsMp, Q. 4660; Bayley, Q. 3911; Beckett, Q. 5644 ; Bardsley, Q. 5706 ; Gedge, Q. 3735 ; Girdle- stone, Qq. 4211, 4300. 99 Better than Delegates, Milton, Q. 1578 ; Fremantle, Q. 2032. " Collective Judgment," Best : — Reeves, Q. 6802. Tristram, Q. 3253. Phillimore " does not much care," p. 56, Q. 1330. Prolocutor doubts, however, whether this applies to Bishops, Q. 4456 and 4458. Objections to, are really to Grown : — Wood, p. 31, Qq. 845, 870. Phillimore, p. 55, Qq. 1304, 1419. Objections to Privy Council were really against their Judgments : Hubbard, Q. 3512. B. Compton, Qq. 2768, 2716-7. Oakley, Q. 2449. Beckett, Q. 5504. Judgment in Essays and Reviews approved by Canon Jenkins, p. 130, Q. 2969 ,■ and MacColl, p. 311, Q. 6464. In. Ridsdale Case, "strongest Court that ever sat," Dr. Tristram, p. 140. In " Purchas Case," their timidity mischievous, Beckett, p. 265. " Too lax with heretics" Cowie, p. 212. 11— REFORM OP COURTS. A.— PROCEDURE. Civil Procedure : — Droop, p. 117. Girdlestone, p. 189. Valpy, p. 238. Beckett, = County Court, p. 262, 264. Clergyman should be dealt with as a Trustee, Valpy, Q. 5070. Non- Appearance = Judgment by Default, Girdlestone, Qq. 4232- 50. Execution to follow Judgment as of course, and not as now by extraordinary processes, Girdlestone, Q. 4261. Injunction to abstain from wrong-doing to issue from Court : — Girdlestone, Qq. 425-160. Tristram, Qq. 3309-10. Process to be served, not by Bishop or Registrar, but by Parties, Girdlestone, Qq. 4167-72 ; Valpy, Q. 6253. 100 Rules and Orders need improvement, Girdlestone, Qq. 4214-6, 4261 Costs, Security for, to be furnished by both sides alike and only when ordered by Judge, Girdlestone, Qq. 4300to 4318. Costs may fairly be subscribed for, Girdlestone, Qq. 4305 to 4317 and 4330. Costs to be allowed where proceedings frivolous, Valpy, Q. 6345. B.— COURTS. Graft the Eccl. Courts into Supreme Court of Justice : — Girdlestone, p. 191. Baxter, p. 380. Littledale (as to crime), p. 227, Q. 4856. Bright admits "Contract," p. 259. By the same Author. FIVE COUNTER-THEORIES TO THE RIDSDALE JUDGMENT. PBIOE FOVRPENOE. THE CATHOLIC DOCTRINE . OP EUCHAEISTIC SACEIFICE WHAT IS IT? PRICE FOVRPENCE. LONDON : E. MARLBOROUGH, 51, OLD BALLET, E.O.