PRINCETON, N. J. % Presented by Mr. Samuel Agnew of Philadelphia, Pa. BX 5157 .J89 1869 Joyce, James Wayland, 1812' 1887. The civil power in its relations to tbo p_hurch RIVINGTONS Tonfcon .. .. .. .. .. .. Waterloo Place ©ifort High Street CEambrttrgc Trinity Street THE CIYIL POWER IN ITS RELATIONS TO THE CHURCH; CONSIDERED WITH SPECIAL REFERENCE TO THE COURT OF FINAL ECCLESIASTICAL APPEAL IN ENGLAND. WITH APPENDIX CONTAINING ALL STATUTES ON WHICH THE JURISDICTION OF THAT TRIBUNAL OVER SPIRITUAL CAUSES IS FOUNDED; AND ALSO, ALL ECCLESIASTICAL JUDGMENTS DELIVERED BY IT SINCE THOSE PUBLISHED BY THE LORD BISHOP OF LONDON IN 1865. By JAMES WAYLAND JOYCE, M.A. ONE OF THE CLERGY -rROC'TORS FOR THE DIOCESE OF HEREFORD. KIVINGTONS, ttonlroit, ®y(ovn, antr CamfcriUgc. 1869. 'E^ovcri fj.lv yap /cat ol KpaTovvres enl ttJs yjjs ttjv tov Becr/xeiv liovatav, SlXXcl crai/AaTtuv p-ovov' ovros Be 6 Becrp.6s avrr) KCt ' 8ia.fia.ivei tovs oipavovs, k.t.A.. S. Jo. Chrysost., Lib. iii. §. 5. TO THE PROVINCIAL SYNODS OF CANTERBURY AND YORK, €l)t£i Creative, ON SUBJECTS AFFECTING THEIR SACRED DUTIES AND CONSTITUTIONAL RIGHTS, IS, WITH FILIAL RETERENCE FOR "THE TRUE CHURCH OF ENGLAND BV REPRESENTATION," MOST HUMBLY DEDICATED BY THE AUTHOK. a Digitized by the Internet Archive in 2015 https ://arch ive.org/detai Is/civi Ipoweri n itsrOOjoyc CONTENTS. PAGE INTRODUCTION 1 CHAPTER I. OUR EXACT POSITION. 1. Duties of Chief Pastors of the Church. — 2. Final Court. — 3. Court of Delegates. — 4. Judicial Committee of Privy Council. — 5. Present members of Judicial Committee. — 6. Spiritual Persons sometimes united with Judicial Committee 3 CHAPTER II. HISTORICAL DETAILS. .1. Gradation of Ecclesiastical Appeals settled in Early Times.— 2. Constitutions of Clarendon. — 3. Archbishops' Courts final within the Realm. — 4. Appeals to Rome.— 5. The Great Statute of Appeals, 24 Henry VIII. 12.— 6. First Establishment of Court of Delegates by 25 Henry VIII. 19 — 7. Jurisdiction of Delegates transferred to Privy Council by 2 & 3 Will. IV. 92 — 8. Juris- diction transferred from Privy Council to Judicial Committee by 3 & 4 Will. IV. 41.— 9. Summary 10 CHAPTER III. remarks on the change introduced by 24 henry viii. 12, a.d. 1533. 1. Upper Houses of Convocations Final Resorts. — 2. Final Judgments of Convo- cations on Royal Marriages. — 3. Endeavours to disable 24 Henry VIII. 12. — a 2 viii Contents. 4. By a late Volume entitled " Ecclesiastical Judgments." — 5. By Common Law Courts. — 6. Court of Queen's Bench. — 7. Court of Common Pleas. — 8. Court of Exchequer. — 9. Archhishops' Courts made absolutely final in certain causes. — 10. Doubts suggested in a late volume entitled " Ecclesiastical Judgments " on this subject 19 CHAPTER IV. remarks on the change introduced by 25 hen. viii. 19, a.d. 1534. 1. Jurisdiction of Upper Houses of Convocation as Final Appeal Courts, continued. — 2. Establishment of Court of Delegates. — 3. Power of the Crown extended. — 4. " Reformatio Legum." — 5. Modern arguments touching Court of Delegates. — 6. Example of Thomas Cromwell invoked in " Ecclesiastical Judg- ments." — 7. Some Conclusions 56 CHAPTER V. REMARKS ON THE CHANGE INTRODUCED BY 2 & 3 WILL. IV. 92, A.D. 1832. 1. Reports of Commissioners in 1831-32. — 2. Star Chamber a Committee of Privy Council. — 3. Court of Delegates abolished, Functions transferred to the Privy Council. — 4. A Constitutional Miscarriage 70 CHAPTER VI. REMARKS ON THE CHANGE INTRODUCED BY 3 & 4 WILL. 41, A.D. 1833. 1. Present System introduced in 1833 by an Accident.— 2. Detail of that Accident, — 3. This Accident disallowed as such in " Ecclesiastical Judgments " . .75 Contents. ix CHAPTER VII. THE PRESENT COURT OF FINAL APPEAL IN MATTERS SPIRITUAL OBJECTIONABLE. PAGE 1. Objections against the Court numerous. — 2. Remarkable Sentence in the Volume entitled " Ecclesiastical Judgments " 84 CHAPTER VIII. THE COURT CONTRAVENES GREAT PRINCIPLES — " RELIGIOUS." 1. A Final Court not only interprets, but constructs.— 2. The Court contravenes a Principle established by our Lord Himself. — 3. Contravenes a Principle confirmed in the Primitive Church by the Council of Jerusalem. — 4 Con- travenes a Religious Principle adopted by the English Civil Legislature. — 5. Contravenes a Principle expressed by devout minds of antiquity. — 6. Contra- venes a Principle expressed by devout minds in later times. — 7. Marked dis- tinction between Spiritual and Civil authority 89 CHAPTER IX. THE COURT CONTRAVENES GREAT PRINCIPLES — "ECCLESIASTICAL." 1. Arbitration on Spiritual Questions restrained to Spiritual Persons, an Eccle- siastical Principle. — 2. A Principle confirmed by the examples of Christian Emperors. — 3. A Principle affirmed by the most learned Canonists. —4. A Dilemma 106 CHAPTER X. THE COURT CONTRAVENES GREAT PRINCIPLES — "POLITICAL." 1. Surprising announcement touching an original prerogative of the Crown. — 2. Civil Power restrained from Spiritual Judgments before the Conquest. — 3. Civil Power restrained from Spiritual Judgments from Conquest to reign of King John. — 4. Civil Power restrained from Spiritual Judgments from reign X Contents. of King John to reign of King Henry VIII. — 5. Distinction between Spiritual and Civil authority recognized in the reign of King Henry VIII.; in the reign of King Edward VI. ; in the reign of Queen Elizabeth ; in the reign of King James I. ; in the reign of King Charles I. ; in the reign of King William and Queen Mary. — 6. Coronation Oath. — 7. Distinction between Spiritual and Civil authority recognized by Law Courts. — 8. Recognized by Text Writers 119 CHAPTER XI. ADDITIONAL GROUNDS OF DISSATISFACTION WITH THE COURT. 1. Introductory. — 2. Incompetency of Court. — 3. Principles of Proceeding in the Court inadequate. — 4. Methods of Proceeding in the Court unsatisfactory (i.), (ii.), (iii-). — 5. The Soloecisui of a Civil Court affecting Spiritual Juris- dictions ' 151 CHAPTER XII. ECCLESIASTICAL APPEALS IN OTHER COUNTRIES. 1. Introductory. — 2. Ecclesiastical Appeals in Greece. — 3. In Bussia. — 4. In Belgium.— 5. In France. — 6. In Scotland. — 7. Ecclesiastical Jurisdiction in the United States of America 169 CHAPTER XIII. POSSIBLE REMEDIES FOR THE DISORDERS IN OUR ECCLESIASTICAL APPEAL SYSTEM. 1. General principles governing Ecclesiastical Appeals. — 2. A new and strange principle introduced here by Establishment of the Judicial Committee of Privy Council. — 3. Question of Royal Supremacy not involved in present argument. — 4. Principles hitherto governing Secular Courts here when dealing with Spiritual Questions. — 5. " Cuique in sua arte credendum," a principle generally adopted in our Jurisprudence ; in questions of Foreign Contents, XI PAGE Law ; in questions of Domestic Law. — 6. This principle ignored by the Judicial Committee of Privy Council. — 7 Application of this principle to the case before us suggested. — 8. Method of application. — If a " grave cause," a Provincial Synod to be consulted; if not a "grave cause," learned Divines to be consulted. — Mode of their appointment. — 9. Summary of suggestions . ■ . . . 200 CONCLUSION 230 APPENDIX A. I. 24 Hen. VIII., cap. 12. — For the Restraint of Appeals . [1] II. 25 Hen. VIII., cap. 19. — The Submission of the Clergy, and Restraint of Appeals [10] III. 2 & 3 Will. IV., cap. 92.— An Act for transferring the Powers of the High Court of Delegates, both in Ecclesiastical and Maritime Causes, to His Majesty in Council [16] IV. 3 & 4 Will. IV., cap. 41. — An Act for the better Administration of Justice in His Majesty's Privy Council ....... [20] V. 3 & 4 Vict., cap. 86. — An Act for better enforcing Church Discipline . [36] VI. 6 & 7 Vict., cap. 38. — An Act to make further Regulations for facilitating the hearing Appeals and other Matters by the Judicial Committee of the Privy Council [48] APPENDIX B. I. Judgment of the Lords of the Judicial Committee of the Privy Council in the matter of the Petition of Complaint of the Right Rev. John William Colenso, D.D., Lord Bishop of Natal ; delivered 20th March, 1865 ; and Judgment of the Rolls Court in Dr. Colenso's case, printed in parallel columns [59] II. Judgment of the Lords of the Judicial Committee of the Privy Council on the Appeal of the Rev. E. Parker v. Leach, from the Chancery Court of York ; delivered 20th November, 1866 [113] III. Judgment of the Lords of the Judicial Committee of the Privy Council on the Appeal of the Rev. Thomas Berney v. the Lord Bishop of Norwich, from the Court of Arches; delivered 28th February, 1867 . . . [122] Xll Contents. PAGE IV. Judgment of the Lords of the Judicial Committee of tlie Privy Council on the Appeal of Simpson v. Flamank, from the Court of Arches; delivered 29th June, 1867 [131] V. Judgment of the Lords of the Judicial Committee of the Privy Council on the Appeal of Rugg v. Kingsmill, from the Court of Arches ; delivered 11th March, 1868 . . . [134] VI. Judgment of the Lords of the Judicial Committee of the Privy Council on the Appeal of Rugg v. the Bishop of Winchester, from the Court of Arches ; delivered on the 23rd December, 1868 [139] VII. Judgment of the Lords of the Judicial Committee of the Privy Council on the Appeal of Martin v. Mackonochie, from the Court of Arches ; delivered on the 23rd December, 1868 [149] INTRODUCTION. Chief func- Of all the functions which the Ecderiasidcd executive authority of the Church Courts. 0 f England has to discharge, those relating to doctrine are unquestionably of the highest and most lasting importance. For decisions in this respect settle what may and what may not be taught as Divine truth by clergymen to the people committed to their spiritual charge. This subject is necessarily one of vital impor- tance to all faithful laymen, as they ought to be enabled to rest in firm assurance, when they resort with their wives, children, and servants to their parish churches, that no doctrine will, with such authority as a clergy- man's character and position impart, there be taught which is not in accordance with the faith of the Church. And it is beyond all controversy one of the primary objects and duties of Ecclesiastical Courts, as well as of Archbishops and Bishops exercising their authority in such Courts, when milder measures fail, to confirm this assurance by providing that the teaching of the national B 2 Introduction. Clergy shall be conformable to the national standards of faith. Of course, under such circumstances, questions connected with a court of last resort, which affects to control all ecclesiastical jurisdictions, are of para- mount importance. Its history, its consti- tution, its powers, its agreement or disagree- ment with the inherent principles of Church authority established by our Lord Himself and ratified by venerable antiquity, its fitness or unfitness for the functions it undertakes — all these can hardly fail of being subjects of deep interest. They are therefore worthy of careful and calm consideration. To such and cognate matters the reader's attention is now asked. Our Exact Position. CHAPTER I. OUE EXACT POSITION. 1. Duties of Chief Pastors of the Church.— 2. Final Court.— 3. Court of Delegates. — 4. Judicial Committee of Privy Council. — 5. Pre- sent members of Judicial Committee. — 6. Spiritual Persons sometimes united with Judicial Committee. „ . It will be well at the outset to 1. Duties of chief Pastors state tne exact position of affairs m of the Church, -mii -i r> -i i • • i England as denned by imperial legislation on this subject. Primarily it is beyond question the office and duty of the Chief Pastors of the Church to ordain fit men to the ministry, to institute them to the cure of souls, and afterwards to superintend, and, if needs be, to correct them in the discharge of their spiritual functions. Indissolubly bound up with the last named duties is the respon- sibility of providing that pure doctrine shall be preached and false doctrine banished. For this end, among others, the Bishops' and Arch- bishops' Courts are not only ecclesiastically, but constitutionally and even statutably armed with large powers, enabling them to correct by censure, suspension, and, in extreme cases, by deprivation of office. But after a Bishop has decided that a clergyman holds false b 2 ' Eccl. Judg- ments, pp. 37. 356. 4 Our Exact Position. [Ch. I. Pari. Pap. 322, Sess. 1850. Eccl. Judg- rncutSj Introd. xlvi. doctrine, and after an Archbishop has con- firmed that judgment, there is a final Court in England which, whatever be the legal theory, practically undertakes to correct both Bishop and Archbishop, and in fact to reverse the decisions of the Chief Pastors of the Church, in respect of those persons to whom the cure of souls is to be committed in this country. Now it is certainly of the gravest 2. Final Court. . . . . importance, if such high functions are in practice entrusted to any Court what- soever, that it should be constructed with the most careful regard to the duties consigned to it, so that no great principles, religious, eccle- siastical, or constitutional, should be contra- vened by its existence or its action; and further, that it should be constructed with the most careful regard to the character and qualifications of its members, so that it may be thoroughly fitted to wield the very large spiritual powers which it affects. 3. Court of From the reign of King Henry Delegates. yjTJ. unt {\ t h e l agt f ew y ear s, the Sovereign had statutable power, dating from the year 1534, to constitute such a Court from time to time "pro hdc vice as occasion should require. The instances, however, of the exercise of this power, in cases of heresy or false doctrine, are extremely rare, not more than three, or at the most four, remain- ing on record. At any rate, as the consti- tution of the Court was entrusted wholly Sec. 2 — 4.] Our Exact Position. to the Sovereign's discretion, and the choice of the Delegates who should compose it was left at large, there was at least the possibility of a selection being made of those persons throughout the whole country who were by character and qualifications most fitted to rule the questions at issue. But by the legislation of the years 1832 and 1833 (a most serious blunder and legislative oversight occurring in the latter year), this power of general selection was statutably taken from the Sovereign, and the appellate jurisdiction was practically committed to a fixed Court, composed of a comparatively small body of persons defined by Act of Parliament, 3 & 4 Will. IV. 41, and denominated the Judicial Committee of Privy Council. 4 jud.Com.of That body is composed by the Privy council. statute last men tioned of such members of Her Majesty's Privy Council as hold or have held certain offices, together with two other Privy Councillors appointed by royal sign manual. The body, of course, under such circumstances is variable in num- bers. At the present time it consists of rather less than thirty persons, who (with two exceptions at most) may be all Dissenters. But it never sits in its entirety. By statute three of its members form a quorum, though it is usual for a somewhat larger number, averaging five or six, to sit in each case, and these are selected by the Lord President of 2 & 3 Will. IV. 92. 3 & 4 Will. IV. 41. Sec. 1. 6 & 7 Vic. c. 38. 6 Our Exact Position. [Ch. I. the Privy Council for the time being. The practical effect of the changes made in 1832-3 is this, that whereas between the years 1534 and 1832 the Sovereign, by the Lord Chan- cellor, who must be a professed member of the Church, selected Delegates from all England, of course including ecclesiastics, at the present time, by the general law, the Lord President, who may be a Dissenter, selects out of the body of persons above mentioned, a quorum to form a court, eccle- siastics being excluded. This, then, is our exact position now, that the Archbishops and Bishops of England, in them spiritual super- intendence and jurisdiction over the English Clergy and the doctrines taught by them, are practically subject to the control and correc- tion of a quorum selected in each controverted case pro hdc vice by the Lord President out of the Judicial Committee of Privy Council : those who compose the quorum being by the general law necessarily all laymen, and possibly all dissenters from the Church's faith. _ _ That there may be a clear under- 5. Jrresent _ .... Members of standing as to the limits within which his Lordship's selection is confined, a list of the present Judicial Com- mittee is inserted, as existing in the year 1867. The Dcke op Maelboeough, Lord President. The Duke of Buccleugh The Marquis of Salisbury The Duke of Buckingham Lord Westbury The Earl of Lonsdale Lord Cranworth Sec. 5, 6.] Oar Exact Position. 7 The Earl Granville Lord Brougham Lord Wensleydale Lord Chelmsford Lord Cairns Right Hon. S. Lushington Right Hon. Sir J. Wigram Right Hon. Sir F. Pollock Right Hon. Sir G. J. Turner Right Hon. Sir J. T. Coleridge Right Hon. Sir J. P. Wilde Lord S. Leonards Lord Kingsdown Lord Romilly Right Hon. Sir A. E. Cockburu Right Hon. Sir W. Erie Right Hon. Sir E. V. Williams Right Hon. Sir J. W. Colvile Right Hon. Sir E. Ryan Right Hon. Sir L. Peel Right Hon. Sir R. T. Kindersley Right Hon. Sir W. Bovill. It is, then, to a quorum, consisting usually of about five, selected at the discretion of the Lord President out of the above body of noblemen and gentlemen, that the correction of our Archbishops' and Bishops' decisions in questions of doctrine is at the present time committed by statute law. That is our exact position. 6. Spiritual I say that such is our exact thneTmiit'ed 5 ' position, because such is the precise with Jud. Com. s tate of the case under the present general law; for the presence of any spiritual persons whatsoever at the sittings of the Court, though sometimes they appear, is abnormal. However, when any spiritual person does ap- pear, his attendance may be accounted for by one or other of the two following reasons. (1) By a statute passed in 1840, it was en- acted that every Archbishop and Bishop of the United Church of England and Ireland, being a Privy Councillor, should be a " member " of the Judicial Committee for the purposes of that Act, but, it must be clearly understood, of that Act only, as this provision does not 3 & 4 Will. IV. c. 41. 6 & 7 Vic. c. 38. 3 & 4 Vic. 86. Sec. 11. 8 Our Exact Position. [Ch. I. 3 & 4 Will. IV. 41. Sec. 5. 25 Ed. III. st. 6, sec. 2. 3 & 4 Vic. 86. Williams v. Bp. of Salisbury. Wilson v. Fen- dall, Feb. 8th, 1864. extend to general cases. (2) Or his presence may be accounted for by this fact, that under a clause in the " Judicial Committee Act " itself power is given to summon any Privy Councillor not being a member of the Judicial Committee " to attend the meetings," not, be it observed, as a member of the Court, but "to attend the meetings" only. At the present time only three spiritual per- sons are Privy Councillors — the Archbishops of Canterbury and York, and the Bishop of London — a number of far slenderer propor- tion than seems to have prevailed of old, for we are assured by the authentic records of this country that the " Kings of England in times past were wont to have the greatest part of their Council of Prelates and Clerks." However, under present circumstances, one or more of the three prelates above mentioned now sit as "members" of the Judicial Com- mittee in any appeal arising under the par- ticular statute before referred to, or governed by its provisions, but then only. The influence which they are allowed to exercise when mem- bers of the Court may be illustrated by the pro- ceedings in a late case, when it appears from the last words of the final judgment delivered that the authority of the Archbishops of Canterbury and York was confined to the scant measure of a formal dissent from conclusions arrived at by the residue of the Judicial Committee. And if such is the amount of authority con- Sec. 6.] Our Exact Position. 0 ceded when they are "members" of the Court, one can hardly suppose that it would be largely extended when they appear not as members, but only as summoned " to attend the meetings," in accordance with the second provision above mentioned. Indeed, when summoned " to attend the meetings," they appear under conditions no way corre- sponding, considering the circumstances of the case, to their proper character and con- dition ; and in reality, as it would seem from late experience, are only admitted in order to put a graver face on proceedings which would otherwise carry their own condemnation on their very front. The exact position, then, being that above mentioned, some historical details will now follow of the events which have led to the state of the law as at present existing. 10 Historical Details. 1 CHAPTER II. HISTOEICAL DETAILS. 1. Gradation of Ecclesiastical Appeals settled in Early Times. — 2. Constitutions of Clarendon. — 3. Archbishops' Courts final within the Realm. — 4. Appeals to Rome. — 5. The Great Statute of Appeals, 24 Henry VIII. 12. — 6. First Establishment of Court of Delegates by 25 Henry VIII. 19. — 7. Jurisdiction of Delegates transferred to Privy Council by 2 & 3 Will. IV. 92.-8. Juris- diction transferred from Privy Council to Judicial Committee by 3 & 4 Will. IV. 41.— 9. Summary. i. Gradation of The present condition of the law AppSstettLd na s grown out of sundry changes in Early Times. wn i cn have taken place from time to time ; the last change of all having been made by a mistake and oversight, as will be more particularly shown on arriving at that period of our inquiry when the change was made. So far back as the history of Eccle- siastical Courts in England can be traced, it appears that the gradation of appeals, with the exception of the final resort, has from earliest times been practically the same as that which exists at the present hour, for it is needless to consider now the fusion of the Arches' Court with the Provincial Court of Canterbury. Indeed, from the very consti- tution of the Church, and its fixed and un- changing rules of authority, this could hardly Historical Details. be otherwise. However, it will be un- necessary for our present purpose to travel backward in our research farther than the twelfth century, though perhaps on some matters connected with this subject I may hereafter have to go back much farther still. 2 Constitu- In the year 1164, by the Consti- tions of cia- tutions of Clarendon, the gradation of ecclesiastical appeals as handed down from former times, and as then existing, was accepted and ratified as part of the written law of England. By the 8th of those Constitutions it was enacted as follows : — " Ab Archidiacono debebit procedi ad Episcopum, ab Episcopo ad Archiepiscopum, et si Arcbiepiscopus defuerit in justitia exhibenda, ad Dorninum regem perveniendum est postreind, cujus mandato Con- troversies in Curia Archiepiscopi terminetur ; ita quod non debeat ultnl procedi, abscpae assensu Domini Regis." 3. Archbishops' By the above Constitution we wZ?ntbe al see tnat > as now ( tne final resort Realm. excepted), the first step was from the Archdeacon to the Bishop ; the second from the Bishop to the Archbishop ; and thirdly, for lack of justice before the Arch- bishop, recourse might be had to the King, by whose orders the controversy was to be finally decided in the Archbishop's Court; and neither party might move for any further remedy without leave from the Crown, i. e. neither might appeal to Rome from the Arch- bishop's Court without royal permission. Now, whatever strange announcements on this subject may have been proclaimed by the 11 Matt. Par. ad. an. 1164. Cone. M. B. i. 435. Coll.Eccl.Hist. ii. pp. 273, 274. 12 Judgment, Court of Ex- chequer, July 8th, 1850. Eccl. Judg- ments, Intro- duc. p. xxvii, note. Coll. Eccl. Hist, ii. p. 276. Cone. M. B. i. pp. 247—8. Thierry, Norm. Conq. i.p. 144. Cone. M. B. i. p. 315. Inett Orig. Ang. p. 387. (rib. Cod. p. 96. Historical Details. [Ch. II. learned Barons of the Exchequer, or what- ever ingenious, and indeed odd, suggestions may have been made in a volume lately- published, under very high authority, it is perfectly plain that under the terms of this 8th Constitution of Clarendon, though for lack of justice before the Archbishop recourse might be had to the King, yet that the con- troversy was still to be determined in the Archbishop's Court, and not elsewhere. The cause was not to be taken out of the hands of the Church ; the judges were to be eccle- siastics, and the forms of proceeding governed by the methods of the Courts Christian. 4. Appeals to ^ is also observable, that in the Rome. ] as £ c i ause of the Constitution above quoted an appeal to Rome without the King's leave is forbidden. The ancient independence of the English Church on Eome, asserted on a notable occasion by Dunstan, and for nine- teen years maintained by the last of our Saxon Archbishops, Stigand, was undoubtedly compromised by the influx of foreigners at the Norman Conquest. But the national unwillingness to permit appeals to Rome was continually manifesting itself notwithstanding. In the reign of King William II. the English Bishops and Barons declared to Anselm that " it was a thing unheard of for any one to go to Rome " (by way of appeal) " without the King's leave." In the reign of King Henry I. a formal complaint was made from Rome Sec. 4, 5.] Historical Details. " that the King would suffer no appeals to be made " thither. And though Henry de Blois, Bishop of Winchester, did in the time of Stephen encourage appeals to Rome, yet we are assured by Huntingdon that this was a novel encroachment on national rights, and " by ill-example cruelly enforced." However, by this 8th Constitution of Clarendon it was distinctly laid down that no appeal should be carried to Rome without royal assent, and so it is no wonder that Pope Alexander III. should have busied himself in assaulting this article of our national jurisprudence. And though notwithstanding the above written law, and notwithstanding the Acts quoted on the margin, some of them known com- monly as statutes of provisors and prae- munire, appeals were made from time to time to Rome on account of a tendency among those in high places to wink at such proceedings, yet it is quite certain that such a course was opposed to the general mind and will of this nation. However, we learn from the Constitution above quoted — the formal declaration of En- glish law at that time — that the final resort for all ecclesiastical causes whatsoever was within the realm to the Archbishops' Courts ; and so the matter remained unchanged down to the year 1533. 5.TheGt.stat. In the year 1533 two changes of Appeals. 24 .. , „. ° Hen. viii. 12. were made by the Great Statute 13 Eadmer ap. Gib. Cod. 96. L. 8, p. 395, apud. Gib. Cod. 96. 25 Ed. III. st, 5 c 22 25 Ed. III. st. 6. 27Ed.III.c.l. 38 Ed. III. 12 Rich. II. c 15. 13 Rich. II. st. 2, c. 2. 13 Rich. II. st. 2, c. 3. 16 Rich. II. c. 5. 2 Hen. IV. c. 3. 6 Hen. IV. c.l. 7 Hen. IV. c.8. 9 Hen. IV. c. 8. 3 Hen. V. c. 4. 14 Historical Details. [Ch. II. 24 Hen. VIII. 12. Sec. 9. Sec. 2. 25 Hen. VIII. 19. Sec. 3. of Appeals. 1. The Upper House of the Convocation of each province was substi- tuted for the Archbishops' Courts for cer- tain specified classes of causes in case the " matter or contention .... hath, doth, shall, or may touch the King, his heirs or successors." 2. The power of the Crown to permit an appeal to Rome from the Arch- bishops' Courts was annihilated as regarded the same classes of causes in an ordinary case. So that now the Archbishops' Courts, for all the causes specified by the Act, — an appeal to Rome being forbidden, — became absolutely final by statute ; unless indeed they "touched the King," in which case, as above said, they would be referred to the Upper House of the Convocation of that province in which they arose. 6 rirst esta- ^ ne y ear 1^34 the final juris- biishmentof diction of the Upper Houses of Court of Dele- rl gates by 25 the Convocations was extended, c ' by statute, to all Ecclesiastical Causes whatsoever which " touched the King;" it being now enacted that — " All manner of appeals of what nature or condition soever they be of, or what cause or matter soever they concern, shall be made and appeals to be had ... . by a statute .... (24 Hen. VIII. 12) . . . and according to the form and effect of the said statute, any usage, custom, prescription, or any thing or things to the contrary hereof notwithstanding." An appeal in all Ecclesiastical Causes Sec. 6.] Historical Details. 15 whatsoever " not touching the King " was given from the Archbishops' Courts to the Crown, so that from that date the Arch- bishops' Courts ceased to be final resorts. The statute provided that — " For lack of Justice at or in any the Courts of the Arch- bishops of this realm, or in any the King's dominions, it shall be lawful to the parties grieved to appeal to the King's Majesty in the King's Court of Chancery, and that upon every such ap- peal a Commission sball be directed to such persons as shall be named by the King's Highness .... to hear and definitively deter- mine such appeals .... which Commissioners .... shall have full power and authority to hear and definitively determine every such appeal .... and that such judgement and sentence as the Lord Commissioners sball make and decree .... shall be good and effectual and also definitive, and no further appeals to be had or made from the Lord Commissioners for the same." By this clause the High Court of Delegates for Causes Ecclesiastical " not touching the King" was introduced. The members of that Court being called Delegates on account of the special " delegation they receive from the Prince for the hearing and determining every particular case." On this occasion the Archbishops' Courts first became Courts of inferior jurisdiction within the realm ; and this strange novelty was introduced into our Jurisprudence, that their decisions should be subject to the correction of Commissioners appointed by the Crown. The power to appoint this Court of Delegates resided with the Crown for 298 years, i. e. from the year 1534 to 1832, when the next change took place. Sec. 4. Gib. Cod. 1082. 16 I Historical Details. [Ch. II. 2 & 3 Will. IV. 92. Sec. 3. 3 & 4 Will. IV. 41. Sec. 1. 7. Jurisdiction of Delegates transferred to Privy Council by 2 & 3 Will. IV. 92. In the year 1832, in consequence of the reports of two Commissions, the Court of Delegates was abolished, and the jurisdiction previously exer- cised by that Court over the Arch- bishops' Courts was transferred by statute to the whole Privy Council. In theory, the juris- diction previously exercised by the Crown in Chancery was conferred on the Crown in Council, thenceforward to be exercised by the Privy Council, subject to such rules, orders, and regulations as His Majesty by Order in Council should direct. And so the whole Privy Council became the ultimate re- sort in all Causes Ecclesiastical which did not "touch the King." In the following year, 1833, another change was made. The jurisdiction given in 1832 to the whole Privy Council was again transferred to a Committee of that body by statute, that Committee being com- posed of the following persons : — " The President for the time being of His Majesty's Privy Council, the Lord High Chancellor of Great Britain for the time being, and such of the members of His Majesty's Privy Council as shall from time to time hold any of the offices following — that is to say, the office of Lord Keeper or First Lord Commissioner of the Great Seal of Great Britain, Lord Chief Justice or Judge of the Court of King's Bench, Master of the Rolls, Vice-Chaneellor of England, Lord Chief Justice or Judge of the Court of Common Pleas, Lord Chief Baron or Baron of the Court of Exchequer, Judge of the Prerogative Court of the Lord Archbishop of Canterbury, Judge of the High Court of Admiralty, and Chief Judge of the Court in Bankruptcy, and also all persons members of His Majesty's Privy Council who shall have been Presi- dent thereof or held the office of Lord Chancellor of Great Britain, 8. Jurisdiction transferred from Privy Council to Jud. Com. by 3 & 4 Will. IV. 41. Sec. 7—9.] Historical Details. or shall have held any of the offices hereinbefore mentioned." And it was also enacted, " that it shall be lawful for His Majesty from time to time, as and when he shall think fit, by his sign manual to appoint any two other persons, being Privy Councillors, to be members of the said Committee." 17 9. Summary. The foregoing are the changes which have from time to time been made by statute in the matter of final Eccle- siastical Appeals. In the following Chapters some remarks will be made on the circum- stances connected with each of those changes in chronological order. The reader mean- while is requested to remember, that — 1. In 1164 the usages previously existing were ratified. The Archbishops' Courts were de- clared final within the realm, and any appeal to Rome without Royal assent was forbidden. 2. In 1533, first the Upper Houses of Convo- cation in each province were made the last appeal courts for certain specified causes, in case they touched the King; and, secondly, Royal permission to allow of an appeal to Rome for those specified causes in other cases was abolished, and so the Archbishops' Courts became for them absolutely the final resorts. 3. In 1534 the jurisdiction of the Upper Houses of the Convocations was extended from the certain causes specified by the Act of 1533, to all causes whatsoever in case they "touched the King." In case they did not, for all causes whatsoever an appeal from the Arch- bishops' Courts was given to the Crown in Chancery, whence was appointed in each case, c Const. Clar., Spel. Cone, ii. 63. Cone. M. B. i. 43 i. Matt. Par. ad an. 1164. 24 Hen. VIII. 12. 9. Sec. 2. Ibid. Sec. 6. 2t Hen. VIII. 12. 2. 25 Hen. VIII. 19. 3. 25 Hen. VIII. 19. 4. 18 Historical Details. 25 Hen. VIII. 19.4. 2 & 3 Will. IV. 92. 1. Ibid. sec. 3. 3 & 4 Will. IV. 41. 1. pro hdc vice, a Court of Delegates to give definitive judgment. 4. In 1832 the Court of Delegates was abolished, and the appeals " not touching the King " which that Court had been empowered to receive were given to the Crown in Council, i. e. really to the whole Privy Council. 5. In 1833 the Judicial Committee of Privy Council was substituted instead of the Privy Council itself. This brings us down to our exact position before described, and now defined by the general law. Remarks on Change made, Sfc. CHAPTER III. REMARKS ON THE CHANGE INTRODUCED BY 24 HENRY VIII. 12, A.D. 1533. 1. Upper Houses of Convocations Final Resorts. — 2. Final Judgments of Convocations on Royal Marriages. — 3. Endeavours to disable 24 Henry VIII. 12.— 4. By a late Volume entitled " Ecclesiastical Judgments." — 5. By Common Law Courts. — 6. Court of Queen's Bench. — 7. Court of Common Pleas. — 8. Court of Exchequer. — 9. Archbishops' Courts made absolutely final iu certain causes. — 10. Doubts suggested in a late volume entitled " Ecclesiastical Judgments " on this subject. 1. Upper Houses of Con- vocations Final Resorts. As we have seen above, the Upper House of Convocation in each province was made in certain special causes "touching the King" a Court of final resort in 1533 by 24 Hen. VIII. 12. 9. This provision was confirmed and extended to all such causes in 1534 by 25 Hen. VIII. 19. 3. These two statutes having been subsequently repealed in Queen Mary's reign, were revived together, and conjointly in the next succes- sion by 1 Eliz. 1, sees. 4, 6, 10; and as no alteration in this respect has ever since been made, it is tolerably clear that the matter now remains as settled in 1534. Indeed, every text writerof any consideration whatever has always so treated of it, and has spoken of the Upper c 2 19 Vid.Sup. p. 14. 1 & 2 Ph. and Mary, c. 8. 20 Upper Houses of [Ch. III. Houses of the Convocations as final appeal courts in all " matters touching the King." 2. Final Judg- r£\ ie truth is that this provision merits of Con- 1 vocationson of the statute of 1533 was in- Royai Mar troduced with direct reference to the nullification then pending of the marriage of King Henry VIII . with Catharine of Arra- gon. The marriage, that princess having been widow of the King's elder brother, Prince Arthur, was without doubt by Ecclesiastical, and, as many believe, by Divine law, null " ab initio;" but having been contracted under a dispensation from Pope Julius II., it was esteemed desirable, if not necessary, that a formal nullification should take place in order to legalize any future progeny from another alliance. The interminable endeavours which were made to induce the Pope of that time to revoke his predecessor's act and disable the original dispensation, are matters of history. They were of course unsuccessful ; for if Clement VII. had undone the act of Julius II. Roman infallibility would have reeled under the shock. So King Henry VIII. and this country were very properly led to look to the Provincial Synods of England among other authorities for the expression of Ecclesiastical law on this subject; and consequently, on application being made for their opinion, the English Clergy decided in a manner quite worthy of them. In the Canterbury Con- vocation, together with other matter con- Sec. 2.] Con vocations Final Resorts. nected with the subject, it was decided by 263 votes to 19 oil April 2, 1533, that it was unlawful to marry a deceased brother's wife, for that such a union was " prohibited by God's law, and above the Pope's dispensa- tion." The same conclusion was come to in the York Convocation directly afterwards, on a division, by 51 votes to 2. And the formal instruments having been drawn in the Canter- bury and York Convocations, under the direc- tion of Dr. Tregonwell and Master Rolland Lee respectively, who appeared as Counsel on the King's behalf, the formal sentence of nullifica- tion was pronounced by Archbishop Cranmer, attended by sundry Bishops and "many great Clerks," on the 23rd of May following, in S. Peter's Church, Dunstable, in the diocese of Lincoln, and in the immediate neighbour- hood of Catharine's residence at Ampthill. Now, it is observable that this matter was finally settled with the King's legal representa- tive, Master Eolland Lee, in the York Convo- cation, on May 13, 1533. For there seems to have been a desire to make the matter doubly sure by securing the formal authority of both our Provincial Synods. The statute 24 Hen. VIII. 12, giving final appeals to the Convoca- tions in "matters touching the King," if we date its authority from the last day on which Parliament sat in that year, came into opera- tion on April 7, and so it is pretty clear that its provision making the Upper Houses of 21 Cone. M. B. iii. 756—8. Cone. M. B. iii. 767. Cone. M. B. iii. 757—8, 767— 8. Lord Herbert's Life Hen. VIII., p. 344. 22 Upper Souses of [Ch. III. 24 Heii. VIII. 12. 25 Hen. VIII. 19. Eccl. Judg- ments, Intro- iluc. xxxviii. Cone. M.B. Ill - 803. the Convocations final resorts, was to forbid by statute any appeal from the Synodical deci- sions just about to be promulgated in a matter " touching the King " as nearly as can well be imagined. Nor is there any good ground for asserting that this provision in the statute before us was annulled by the Act of the following year. For, notwithstanding the remarkable announcements to that effect delivered by the learned Justices of the Queen's Bench in that memorable essay in history with which they favoured the world on April 25, 1850; notwith- standing a similar judgment of the learned Justices of the Court of Common Pleas, deli- vered May 27, in the same year; and not- withstanding the assurance given us in a volume lately published under very high authority, that " the provision relating to the King's causes never tooh effect;" yet, it must be said that it seems to have taken not only speedy effect in the case of Catharine of Arra- gon, above recorded, but, moreover, to have exerted very lasting and permanent influ- ences in after years over other cases " touch- ing the King," and those of the very highest constitutional importance. For a second instance of this provision relating to the "King's causes" taking effect, reference may be made to the sentence of divorce between King Henry VIII. and Anne Boleyn, which was introduced more than Sec;. 2.] Convocations Final Resorts. three years after the enactment of the statute under view, into the Convocation of Canter- bury, and was there furnished with the neces- sary seals, and also with the signatures of the members. For another instance of the provision re- lating to the " King's causes " taking effect, reference may be made to the nullification of the marriage between King Henry VIII. and Anne of Cleves, which took place more than seven years after the enactment of the statute before us. This cause, like the two before mentioned, very nearly "touching the King," was subjected to Convocational authority. And, indeed, the whole circumstances of the case afford a most imposing instance of a Synodical trial. To make assurance doubly sure, as in Catharine of Arragon's case, the authority of both the Canterbury and York Convocations was invoked, a large number of the Northern Synod appearing in London. Archbishop Cranmer detailed the object of the meeting ; Gardiner, Bishop of Winchester, opened the case for the King. A Committee, consisting of the two Archbishops, Cranmer and Lee, the Bishops of London, Durham, Winchester, and Worcester, with some others, were appointed to examine witnesses and to receive evidence. This Committee selected a Sub-delegation of five persons out of their body to impose oaths on the witnesses, and reduce their evidence to writing. This cause 23 24 Hen. VIII. 12. Cone. M. B. iii. 804. Cone. M. B. iii. 851. Ibid. Ibid. Ibid. Cone. M. B. iii. 852. 24 Upper Houses of [Ch. III. ibid. Coll. v. 64. Cone. M. B. iii. 854. " touching the King," moreover, loses none of its significance when we consider the high figure of the witnesses who appeared before the Court of Sub-delegation. Among the wit- nesses examined were — Lord Chancellor Audley, the Dukes of Norfolk and Suffolk, Lord Southampton, Lord High Admiral Rus- sell, Lord Cobham, Sir Anthony Browne, Sir Thomas Heneage, Sir Anthony Denny, and others of inferior degree. Among the evi- dence put in was a deposition of King Henry VIII. himself. Eventually the Synod de- cided, after mature investigation of the evi- dence produced and of the merits of the case, that the royal marriage was null, on the ground, I believe, of pre-contract, and that both parties were at liberty by the Divine law to engage in a fresh nuptial alliance. The instrument, sealed with the seals of the Arch- bishops of Canterbury and York, and sub- scribed by other members of the Synod, bears date July 9, 1540. To these historical proofs that in cases " touching the King," the clause in 24 Hen. VIII. 12 took effect in after years, it is no answer to aver that these royal causes were heard by the Convocations respectively in the first instance and not on appeal. For in ecclesiastical causes it has been a common usage to go to the higher Court at once, "prima vice " as is testified to this day by the practice of sending cases by letters of Sec. 3.] Convocations Final Resorts. request from the diocesan consistories to be tried in the first instance in the Provincial Appeal Court. Nor, in the second place, does it disable these historical proofs to affirm that while the statute gave the jurisdiction in ques- tion to the Upper Houses of the Convocations, yet that members of the Lower Houses are found to have joined in the investigations and proceedings. In theory, the Upper and Lower Houses of a Convocation are ecclesiastically one Synod, and this is specially the case in discharging judicial functions. So far as our records remain, and there is abundance of them on this subject, I believe it can be shown that previously to the Reformation the two Houses invariably sat together in trials for heresy and false teaching, and specially in pronouncing judgment ; and so it is more than likely that the Upper Houses in exercising their new statutable jurisdiction in "matters touching the King" did not choose so far to disregard all previous Synodical practice as to exclude the lower clergy from joining as of old in the final pro- ceedings. „ „ , I have been, perhaps, over par- 3. Endeavours , § . . to disable 24 ticular in pressing this matter on Hen. VIII. 12. , , f. , r tne reader s attention. My excuse must be found in the pertinacious endeavours which have been made to disable this statute by asserting that from the date of its enact- ment its most remarkable provision " never 25 Hody. Hist, of Eng. Councils and Convoca- tions, Part III. p. 247. Eccl. Judg- uieuta, Intro- iluc. xxxviii. 26 Eccl. Judg. Introduc. Ibid. 24 Hen. VIII. 12. 9. Upper Houses of Convocations, Sfc. [Ch. III. took effect," and by suggesting doubts as to whether its other important provisions would have been permitted to prevail while the Act remained in its integrity. 4. By a late Indeed, in a volume lately pub- tWed^Ecci li sne( l under very high authority, Judgments." it is affirmed by way of disabling the appellate jurisdiction of the Convocations in " King's causes " as follows : — " In the matter of the divorce, Queen Catharine did not appeal, having refused to acknowledge the authority of the Archbishop's Court." But the ecclesiastical, legal, official, and lite- rary contributors to that volume failed to inform their readers that the divorce had been discussed, adjudged, and that the instru- ments legalizing it had been formally signed and sealed by both Convocations before Arch- bishop Cranmer pronounced the sentence. How, therefore, an appeal could have lain from those tribunals back to themselves after they had, under the new statute, already ad- judged the matter, or how an appeal could have been prosecuted from the Archbishop's Court, which was not responsible for the judg- ment, is not explained. And this difficulty appears the more incapable of solution when one remembers that the Convocational deci- sion in such matters was under the terms of the statute, " Never after to come in question and debate, to be examined in any other court or courts." Seo. 4 — 6.] Court of Queen's Bench, Sfc. 27 5. By Common It is matter of notoriety that both Law Courts, history and law have experienced the same rough treatment in our common law courts as in the volume above referred to. The jurisdiction of the Convocations in causes "touching the King" came under discussion in the Courts of Queen's Bench, Common Pleas, and Exchequer in the year 1850. The argu- ment arose in each on three several applica- tions for a prohibition to prevent the Arch- bishop of Canterbury from instituting a clerk to a benefice in the diocese of Exeter, " or otherwise carrying into execution an order of Her Majesty in Council of March 9, 1850." The Court of Queen's Bench then held that the Convocational juris- 6. Court of Queen's Bench diction over the " King's causes given by the statute of 1533, was taken away by a statute of the following year, 1534. This, however, seems a remarkably odd conclusion, considering that the Act of 1534 specially and unequivocally in terms confirms in its 3rd section " the manner, form, and condition " of all manner of ap- peals as settled in 1533 ; except, of course, so far as any alteration was specifically made by the second statute. But no alteration what- ever was even hinted at, much less made, as regards the "King's causes." However, as the decision of the Queen's Bench was illustrated by fictions and based on grounds which flatly contradicted the acknowledged facts of history, Gorham v. Bp. of Exeter. Eccl. Judg- ments, 107. Judgment, Ap. 25, 1850. 24 Hen. VIII. 12. 25 Hen. VIII. 19. Ibid. 28 Court of Queen's Bench, Sfc. [Ch. III. Eccl. Judg. merits, p. 110. Ibid. 109. Cott. MSS., Tit. B. 1. it gave no satisfaction. For instance, the Court decided that King Henry VIII. was " impatient to marry Anne Boleyn " at the time when the issue of that union, the Princess Elizabeth, was five months old ; the Court thus boldly and unequivocally affirming the Crown of England to have been illegitimate in the person of our renowned Queen in the third succession, the notable Elizabeth. The Court further decided that " Sir Thomas More, a rigid Roman Catholic, ivas Lord Chancellor" when 24 Henry VIII. 12 was passed; i. e., between February 4 and April 7, 1533. This again is altogether wide of matter of fact, for that learned person surrendered the seals on May 16, 1532. Once again, the Court held that Audley succeeded to the Chancellorship between April, 1533, and January, 1534. This is equally untrue, for that pliant courtier attained to the dignity of Lord Keeper on May 20, 1532, and to that of Lord Chan- cellor January 6, 1533. And so, as the Court of Queen's Bench missed its way so irrecoverably among the acknowledged land- marks of history, and was in truth so unfortu- nate as to trample down facts and dates into a hopeless mass of inextricable confusion, it is not surprising that a judgment founded on such performances has hitherto found no credit whatsoever. Nor has it been usual for any body to refer to it with any satis- faction as a true exponent either of fact or Sec. 7.] Court of Common Picas, fyc. 29 law, or indeed otherwise than with jocular hilarity, until it was lately solemnly quoted, and indeed reprinted in the volume published under very high auspices and entitled "J Collection of the Judgments of the Judicial Committee of the Privy Council, fyc." The Court of Common Pleas Common Seas. Came t0 the Same Conclusion as the Court of Queen's Bench — that the Upper Houses of the Convocations were not final appeal courts in matters " touching the King ;" but, of course, not in consequence of the same methods of reasoning, nor by a like onslaught upon history. The deserved ridicule which had been cast on the previous judgment of the Court of Queen's Bench, the witty sallies of a learned advocate in the case, and the hilarity among the audience which greeted his exposures of the marvellous fictions affirmed as true by the Court of Queen's Bench, served as a signal warning to the learned justices of the Common Pleas to avoid with extremest caution the historical track of their predecessors. So the main endeavours of this Court were directed towards disabling the testimony of all the eminent text writers on this subject, who, it seems, without one solitary exception, have held that the Upper Houses of the Con- vocations are courts of final appeal in " mat- ters touching the King." In truth, one may say that the contest resulted in a general Ecel. Judg- ments, xxxviii. Ibid.107— 115. Judgment, May 27, 1850. Ct. C P., May 2, 1850. Vid. Speech, Sir P. Kelly, Court Ex., Jul v 1, 1850. 30 Court of Common Pleas [Ch. III. Vid. Speech, Sir F. Kelly, Court of Ex- chequer, July 1, 1850. 24 Hen. VIII. 12. 25 Hen. VIII. 19. engagement between the Court of Common Pleas and the text -winters. However, it was thought necessary by the Court to make some preliminary demonstra- tions before assaulting so formidable a phalanx. The Court therefore approached its enterprise by throwing in a few somewhat unintelligible distinctions regarding the words manner, form, and condition, by way of dis- abling some very intelligible words in the two statutes before it, at the same time confessing, with what some people may think very needless modesty, that the interpretation adopted did perhaps " not exhaust " the whole meaning of the words. Then the Court cited a list of cases which, as was asserted, had been tried in the Court of Delegates. But of these the most consider- able, and indeed those on which the Court dwelt at far the Greatest length, and mean- while under the gravest misapprehensions, were not tried in the Court of Delegates at all, but by a totally different tribunal — the Court of Review, — upon which I shall have occasion hereafter to remark. Having thus opened the attack, the Court proceeded to assault the most eminent text writers in de- tail, who have, in combined array, declared the Upper Houses of the Convocations to be final appeal courts in "matters touching the King." And this was done with remark- able eagerness, and as some have thought Sec. 7.] on Appeal to TJ. H. of Convocations. 31 with a violence more headstrong than com- mendable. It was no doubt clear to the Court of Common Pleas, as indeed to every one else, that unless the text writers could be silenced there was not the remotest chance of carrying the coveted position : viz. that the Upper Houses of the Convocations were not final appeal courts in "matters touching the King." And so upon the text writers, one by one, the attack was directed with the liveliest vigour and the most unwearied pertinacity. First, the Court fell upon Coke armed with his 4th Institute, emblazoned with this device (24 Hen. VIII. 12. 1 Bliz. 1), a most ominous combination, and remarkably conspicuous from the omission of an intervening statute, which was throughout this whole engagement reliedon as having annihilated the one first cited. Coke, however, holding a position peculiarly threaten- ing to the justices of the Common Pleas, and resting moreover on Lord Dyer's manifest sup- ports, had these two mottoes legibly inscribed under the device above mentioned : — " If any cause shall depend in contention in any Ec- clesiastical Court which may or shall touch the King, his heirs or successors, the party grieved shall or may appeal to the Upper House of Convocation, within fifteen days after sentence given;" and again, "Where the matter toucheth the King, the appeal, within fifteen days, to be made to the higher 25 Hen. VIII. 19. 24 Hen. VIII. 12. Coke Inst. 4. 74, p. 323. Ibid. p. 339. 32 Court of Common Pleas [Ch. III. See Judgment, Ct. Excheq., July 8, 1850, inf. sec. 8. Abridgment, Tit. Ecclesias- tical Courts, Letter B. Digest. Tit. Convocation, D. Ibid. Tit. Appeal. D. Lectures, vol. i. 76. Convocation House, and no further, but finally to be there determined." This renowned jurist received very barbarous treatment at the hands of the Court of Common Pleas, as must be confessed by every body except his oppo- nents. No fair regard was paid to the ap- proved rules of legal warfare, and so Coke was most unhandsomely despatched. Next appeared Bacon, who opposed a very bold front. He maintains, " If the matter con- cerns the King the appeal must be to the higher House of Convocation." His real weakness, however, seems to have been that he relied too implicitly on the aids of Dyer and Coke, and so Bacon was somewhat cavalierly disposed of. Then Comyn was engaged. He indeed affirms, on two different occasions, " In causes ecclesiastical if the King be concerned there shall be an appeal to the Upper House of Convocation ;" and again, " If the King be concerned the appeal shall be to the Upper House of Convocation." This Chief Baron was maimed partly by the former charge of relying too confidently on Dyer and Coke ; but, farther, he had what must be called rather an unfair advantage taken of him and so he was, as one may say, struck down from behind. Then "Woodeson's positions were assailed. He says, " If indeed the cause affect the King an appeal may by the statute (24 Hen. VIII. 12) be brought to the Upper House of Convocation." And he further pro- Sec. 7.] on Appeal to JJ. H. of Convocations. ceeds to affirm, " This provision does not seem abrogated by the subsequent statute (25 Hen. VIII. 19), by which appeals are to be made from the Archiepiscopal Courts to the King in Chancery." So as this lec- turer was very defiant in his challenges, a remarkably lively volley was poured on him in these words : " The authority of this pas- sage referring only to the 4th Institute before observed upon cannot be deemed entitled to any weight." And thus Woodeson fell. Then there was some clashing with Burn. But as he only set out the law as detailed on the statute book and referred to by Coke, the law and Coke having been previously disabled, this ecclesiastical jurist's engagement was a slight affair, and his overthrow was of course inevitable. Then appeared Blackstone on the field. He threatened a remarkably stout resistance, for directly under the quotation of the statute 25 Henry VIII. 19 these words were some- what ostentatiously displayed on his front : " But in case the King himself be party in any of these suits the appeal does not then lie to him in Chancery, which would be absurd, but by the statute (24 Henry VIII. 12) to all the Bishops of the realm assembled in the Upper House of Convocation." This was a serious check ; and so batteries from various quarters were played off upon Blackstone. First, an attempt was made to disable what he did say Judgment, Court C P., May 27, 1850. Ecclesiastical Law, Tit. Ap- peal, vol. i. p. 57. Comm. vol. iii. pp. 66, 67. 34 Court of Common Pleas [Ch. III. Stephens, vol. iii. 433. Hovenden, vol. iii. 67. Parergon,p.84. 24 Hen. VIII. 12. by references to what lie did not say on other occasions. Secondly, a charge was made which I must respectfully take leave to say involved what is substantially quite untrue in matter of fact. And thirdly, there was an endeavour to take a very unfair advantage of him, and to weaken his defences by introducing a somewhat doubtful statement of one of his modern editors, referring to matters which had occurred since our champion's death. But the Court meanwhile entirely omitted to refer to the notes of another editor, who emphatically and in terms affirms, and indeed illustrates, the position maintained by the learned commentator on the laws of England. At any rate, though it is difficult to say exactly how, Blackstone was silenced. The last stand, and that was a forlorn hope, was made by Ayliffe. His " Parergon" was the remaining outwork. His words are, " And if the cause or suit concerns the King, the party grieved may within fifteen days appeal to the prelates assembled by the King's writ in Convocation then next in being or ensuing in the Province where the suit was begun, and there it shall be finally determined." He was finally ridden down by a charge of inaccuracy in his mention of the statute in question. But it must be said, that upon a comparison of Ayliffe's words with the terms of the statute, the charge of inaccuracy fairly seems to lie the other way. Seo. 7.] on Appeal to U. H. of Convocations. Thus were the text writers disposed of in detail. But as we find the authority of Coke, Bacon, Comyn, Woodeson, Burn, Blackstone, and Ayliffe in one balance, while that of C. J. Wilde and Justices Maule, Creswell, and Talfourd has to be weighed in the other, it must be left to the consideration of the reader which side of the scales, so far as authority is concerned, is likely in the esti- mation of posterity to kick the beam. The extraordinary historical and constitu- tional misapprehensions under which the last named four learned justices laboured while preparing their judgment must not be passed over in silence, because upon those misappre- hensions the conclusions of the Court were mainly grounded, and because such serious errors do not tend to recommend its autho- rity in preference to that of the text writers. 1. The first error is one into which the authors of the recent volume, published under very high episcopal authority, also fell when they asserted, as before remarked, that " the provision relating to the King's causes never took effect." Whether this assertion was copied from the judgment before us, or from that of the Queen's Bench, or is an original item of information, does not appear. If it was copied, it would have been safer to have relied on surer guides. However, to return to the consideration exclusively of the judgment of the learned justices of the Common Pleas. d 2 35 Eccl. Judg- ments, &p., Iutroduc. Ibid. p. 112. 36 Court of Common Pleas [Ch. III. Gorhain v. Hp. Exeter, Judg- ment, CP. May 27, 1850. Ibid. Ibid. Cone. M. B. iii. 804. Ibid. iii. 851- 85 4. The Court affirmed that " after due in- quiry and investigation no instance has been discovered of an appeal in such cases to the Convocation ;" and again repeating that " no appeal has been discovered to have been made to the Convocation," it grounded, in the antepenultimate sentence of its judgment, its " decision simply on the construction of these particular ancient statutes, as sup- ported by the usage in the only instances of appeals in matters touching the Crown known to have occurred since they passed." Now as it is barely credible that in this " due inquiry and investigation " instances so important and so nearly " touching the King" as Royal matrimonial suits could have been overlooked, one must conclude that these learned justices followed the Queen's Bench example, and confusing their historical dates (not to speak now of the nul- lification of Catharine of Arragon's marriage in 1533), must have concluded that the divorce of Anne Boleyn and the nullification of the marriage of Anne of Cleves were anterior to the enactment of the statutes in question. But as the statutes were enacted in 1533 and 1534 respectively, as the divorce of Anne Boleyn was ratified by the Canter- bury Convocation in 1536, and as the nulli- fication of the marriage of Anne of Cleves was decided by the same authority in 1540, it is unquestionably clear that these most Seo. 7.] on Appeal to U. H. of Convocations. 37 important cases in matters " touching the King " occurred after the statutes under view were passed, and not before. Nor will it at all serve the purpose of the learned justices in support of their history to ride off upon the averment that these causes were not brought before the Convocations on appeal but in first instance. Such causes might be carried at once by ecclesiastical usage and practice, which is the usage and practice we have here to do with, to the highest Court. And so this frail vehicle of escape breaks down under the weight of true history. The learned justices indeed endeavoured to disable the written law by the asserted lack of precedent, a very questionable pro- ceeding, but the lack of precedent was alto- gether misreported, and that made the pro- ceeding more questionable still. Thus stand the historical errors. 2. The other serious misapprehensions under which these learned Justices of the Com- mon Pleas laboured were constitutional ones; and as this matter lay strictly and unequivo- cally within the circle of their own profes- sional reading, they were perhaps the less pardonable. These judges mistook one Court for another, as was above remarked. The "High Court of Delegates" was substituted both in their minds and in the express terms oi then* judgment tor the Court ot Review. Now, it would be difficult to name in the See appli- cation to C. of Excheq., July 1, 1850. Coke, Inst. 4. 341. 38 Court of Common Pleas [Ch. III. Oughton, t)rd. .lud. i. 437. Gib. Cod. 1083. Burn, Eccl. Law, i. 56. 25 Hen. VIII. 19. 4. Queen's Bench 39 Eliz. Dyer, 273. LitfcL 232. Coke, 4, Inst. 341. Gib. Cod. 1083. whole range of English judicature any two Courts which date their origin from prin- ciples more diametrically opposite. The first owes its birth to a specific clause of a specific statute; the second sprang from an entirely different source. It boasts a somewhat shadowy parentage, and was established on the foundations of some old Papal claims sup- posed to be transmitted to the Crown of Eng- land. But not only were these two Courts established on totally different foundations, the jealousies, and indeed open collisions, oc- curring between them are very notorious in the history of legal warfare. Such clashing took place in the reigns both of Queen Eliza- beth and also of King Charles I., and the arguments by which the authority of the " Court of Review " over the "Court of Dele- gates" was then upheld, and indeed finally established, are so surprising that it is hardly possible but that the nerves of any sensitive constitutional reader, upon bare perusal, would have received such a shock as would be ex- tremely difficult to recover from afterwards. Certainly, unless the memory of any man, however insensitive, was very treacherous, those arguments could hardly fail, if he had once seen them, to leave such an impression on his mind as would forbid him thenceforth at any time from confounding together the " High Court of Delegates " and the " Court of Review." This catastrophe, however, mani- Sec. 7.] on Appeal to U. H. of Convocations. 39 festly befell the learned justices of the Court of Common Pleas, and, as it appears, in- fluenced their judgment. To sum up this matter as it emerged from the Courts of Queen's Bench and Common Pleas. " If," in the words of a very learned lawyer, referring to the text writers above quoted, " the judgments of these Courts are right, then this long, unbroken chain of authority is entirely wrong." And further, if the Court of Queen's Bench was justified in deciding that the clause in the Act of 1533, constituting the Upper Houses of Convocation final appeal Courts in " matters touching the King," was repealed by the Act of 1534; if the Court of Common Pleas was justified in coming to the same conclusion, in what pos- sible manner, by what conceivable ingenuity, can the facts be accounted for that Anne Boleyn was divorced in 1536, and that Anne of Cleve's marriage was declared null and void in 1540, by Convocational authority? The jurisdiction thus exercised was clearly founded on the 9th section of the Great Statute of Ap- peals of 1533, thus remaining unrepealed in 1536 and 1540, and consequently unrepealed to this hour : for no one has ever even sug- gested that matters do not stand at this moment as they did at the last named dates. Indeed, if these causes " touching the King" did not come before the Convocations by virtue of the statute of 1533, it is impossible to con- sir F. Kelly, Ct. Excheq.j July 1, 1850. Eccl. Judg- ments, p. 111. 24 Hen. VIII. 12. 9. 25 Hen. VIII. 19. 4. Gorham v. Bp. Exeter, Judg- ment, May 27, 1850. Cone. M. B. iii. 803, 804. Cone. M. B. ;ii..851— 4. 24 Hen. VIII. 12. 24 Hen. VIII. 12. 40 Common Laiv Courts [Cii. III. ceive any reasonable supposition whatsoever which can account for those most important cases having been submitted to the tribunals which gave final decision upon them. It is observable, that the Courts of Queen's Bench and Common Pleas, when the question under view was raised before them, both re- fused to grant rules nisi, by which the advan- tages of further argument and fuller informa- tion — and these, to say the least, seem to have been no more than necessary — would have been secured. Those Courts appeared unwilling to allow any further argument in a case which it must be confessed placed these remarkably disagreeable alternatives, as they supposed, before them; though, indeed, the learnedBarons of the Exchequer, as we shall see, afterwards avoided both horns of the apparent dilemma. On the one hand it probably appeared a very serious matter to grant a prohibition to in- hibit the Archbishop of Canterbury, acting under circumstances then existing, from in- stituting a clerk in the diocese of an unwilling suffragan. On the other hand it was, without any doubt, a very serious matter to put on our great constitutional statutes a construction which contradicted the received rules of legal interpretation, and disabled the authority of an unbroken chain of the most eminent text writers on the subject under htigation. As regards the first alternative, no one who has attained to the least smattering of legal Sec. 7.] on Appeal to U. H. of Convocations. history would venture even to surmise that it could be any way generally disturbing to a Common Law Court to grant a prohi- bition against an archbishop or against eccle- siastical jurisdiction. For the Common Law Courts have been often over-forward in this direction ; and it would not be difficult to point out an occasion on which they received a severe Royal rebuff for their readiness. Indeed, the judges of Queen's Bench and Common Pleas, together with the Barons of the Exchequer, have before now had to deliver their answers to the Lords of the Privy Council on complaints exhibited against them for such proceedings. And though Sir E. Coke would have those answers to be " the highest authority in law," yet other people will remember that the authors of them were for the time removed from the bench to plead at the bar; or rather, perhaps, that their size shrank down to the stature of defendants in the suit. They were charged with overstrain- ing their authority to the prejudice of others. So it was not their judgment that was sought, but a justification of their practice that was required before a superior authority to their own, as they themselves acknowledged by their answers. That " no man should be judge in his own cause " — " iniquum est aliquem suae rei esse judicem" — is a maxim which has exerted a sensible effect on our jurisprudence, and one, indeed, which Sir 41 Strype's Ann. iv. 398. Coll. iii. 12— 40 ; vii. 314. Cone. M. B. iv. 417. Inst. ii. fol. 601. Coll. iii. 41. 42 Rep. viii. fol. 117. 8 Kich. II. c. 2. 13 Hen. IV. c. 2. 33 Hen. VIII. c. 2i. Cone. M. B., iv. 417. 9 Ed. II. Inst. ii. fol. 601. Coll. iii. 12— 40. Common Law Courts, 8[c. [Ch. III. E. Coke has himself cited when interpre- tation and not conquest was his aim. And as it has never been supposed that the studies of the learned profession would pre- vail to emancipate its members from such frailties as are common to mankind, specific statutes have been made to relieve our judges as far as may be from all temptation in this respect. So when the Common Law judges had to put in their answers to the complaints against them, which ran in the name of the whole clergy, and were framed on the statute "Articuli Cleri," those answers must be looked upon not as judgments from the bench, but as pleas in the defence, not as Sir E. Coke would have them, the " highest authority in the law," but rather as rejoinders in the suit. Delivering themselves in favour of their own privilege and jurisdiction, they were clearly interested parties in the case, and so Sir E. Coke's description swelled their pleas or re- joinders to a romantic bulk. However, to return to the first alterna- tive which, as they themselves thought, was placed before the Courts of Queen's Bench and Common Pleas on the occasion we have been considering; one does not mean to suggest that it would have appeared under ordinary circumstances a serious matter at all to a Common Law Court to have granted a prohibition against the Archbishop of Can- terbury or the proceedings of his provincial Sec. 8.] Court of Exchequer, fyc. tribunal; only in this case his Grace was about to act under the authority of a judg- ment of the Judicial Committee of Privy Council, or, to speak technically, of " the decision of Her Majesty in an appeal." And to inhibit him under those circumstances probably appeared a very serious matter in- deed. For the Judicial Committee, though comparatively a brand-new Court, not yet thirty-five years old, for some reason or other seems to be looked upon with solemn and almost mysterious reverence in many quarters, and to be an object of far more devoted regard than our ancient established ecclesiastical judicatures. As regards the second alternative above referred to : viz. an abandonment of the received rules of legal interpretation, and a contradiction of an unbroken chain of the most eminent text writers ; that, it seems, did not appear to the Justices of the Queen's Bench and Common Pleas so serious a matter as many other people have thought it and still think it. And so those Courts adopted this second alternative, and decided that the Upper Houses of Convocation were not final appeal Courts in " matters touching the King." The above decisions gave very little satisfaction to persons per- fectly well qualified to judge, and so application was made to the Court of Exchequer on the same question. Now the 8. Court of Exchequer. 43 Eccl. Judg- ments, &c., In- troduc. lxxvi. aud pp. 105 — 7. Eccl. Judg- ments, passim. 44 Court of Exchequer [Ch. III. Court Eicheq., June 11, 1850. Ibid. Sir J. Jervis. Court Eich., June 29, 1850. Sir J. Jervis's Speech. learned Barons of that Court, as was indeed reasonable, appearing to mislike, or at least mistrust, the fictitious history and misstated facts, if not the interpretation of law as pro- pounded by the Queen's Bench and Common Pleas, did not follow their example in re- fusing opportunities for additional argument and information, but granted a rule nisi for further hearing. Thus they took some time for consideration, thinking it, in their own words, " right that we should ourselves refer to and carefully examine all the autho- rities cited." Doubtless in so acting, and avoiding the examples, or rather profiting by the warnings lately supplied, they showed a wise discretion, and that discretion was re- warded by an escape from either horn of the forementioned dilemma being suggested to them. The Attorney-General of that day, who was engaged against the jurisdiction of the Convocations, finding that the decisions in his favour in the other Courts were utterly untenable on the grounds avowed, and alarmed at the exposures of those judgments which had been made, put forward a happy sugges- tion to the Court of Exchequer, of which it was not slow to avail itself. "Why," said the learned gentleman, " should there not be a double and concurrent appeal ? If so, this rule would be discharged." Meaning, that if in a case " touching the King," a concurrent appeal lay to the Judicial Committee or to Sec. 8.] on Appeal to JJ. H. of Convocations. 45 the Upper House of Convocation of the pro- vince, then the rule in this particular case would be discharged and no prohibition would issue. The learned advocate did not inform the Court or the world what final event might ensue from having two concurrent Courts of ultimate appeal in case one of the parties to a litigated suit should apply to one Court and the other party to another. But though he made no endeavour to solve this apparent difficulty, his suggestion met with remarkable favour. While the learned Barons refused to grant a prohibition in the particular case, they declined to affirm that the Upper Houses of Convocation were not final resorts in mat- ters "touching the King." And very wisely did they thus decline to adopt the conclusions of the Queen's Bench and Common Pleas, for reasons thus assigned in their own words — " We feel, however, that the authority of Lord Court Excheq., " in re Qornam, Coke is not to be lightly disregarded, and Judgment, certainly in the 4th Institute he speaks of the ^ Court of Convocation as a Court to which there was an appeal under the statutes in question in cases ' touching the King.' This is expressly stated under the head Court of Convocation, and again under the head of Appeals. It is true that in the latter passage Lord Coke is not speaking from his own mind, but is only giving the report of Lord Dyer. But we think it must be inferred that he meant to adopt as good law what he so 46 Court Excheq., Judgment, July 8, 1850. Eccl. Judg- ments, p. 290. Judgment, Privy Council Chamber, on Petition of Dr. Colenso, March 20, 1865. Court of Exchequer [Ch. III. states himself to have received from Lord Dyer. What Lord Coke thus states, namely, that in matters which touch the King there is an appeal to the Upper Houses of Convo- cation, has been adopted by a great number of writers of the highest eminence The result of the whole is, that Lord Coke, writing long after the time of Henry VIII., says there is in matters ' touching the King ' an appeal to the Convocation, and many sub- sequent text writers of great eminence down to very modern times assert the same." And though the learned Barons thought this question in the case then before them " rather matter of curious speculation than of any practical importance," yet one may venture, without any rashness, to affirm that, judging from some late proceedings, it might be in some cases of the greatest possible practical importance whether a cause was carried in last resort before the Judicial Committee of Privy Council or the Upper House of Convo- cation in either province. It is true that the learned Barons, while declining to rule the main question whether the Upper Houses of Convocation were or were not final appeal Courts in " matters touching the King," did say that if they were compelled to decide it they might come to the same conclusion as the other Courts of Westminster Hall, yet some of the grounds assigned for this hypothetical agreement 4 Sec. 8.] on Appeal to U. H. of Convocations. under possible circumstances are so very remarkable as to require some notice. The first and chief ground was the asserted " fact that no appeal to Convocation ever has taken place during the three centuries and upwards which have elapsed since the passing of these statutes ;" and consequently, that the previous judgments of the Queen's Bench and Common Pleas had adopted a construction " supported by all the practice that is known to exist on the subject and opposed by none." But the above asserted fact was no fact at all, for suits " touching the King " in the cases of Catharine of Arragon, Anne Boleyn, and Anne of Cleves — above mentioned, — had been brought before the Convocations during the time which had elapsed since the passing of the statutes in question, and so the decisions of the Queen's Bench and Common Pleas were not only not supported by " all the prac- tice known to exist," but were opposed to the most remarkable exercises of it. The last ground for the hypothetical agree- ment of the learned Barons under possible circumstances with the two other Courts shall be given in their own words, for it is so extremely surprising that one really fears misreporting it by any alteration whatever in its terms. " Lastly," they said, " we may remark that the statute 25 Henry VIII. c. 19, by giving the appeals in all causes eccle- siastical from the Archdeacon to the Bishop 47 Court Excheq. Judgment, in re Gorham, July 8, 1850. Ibid. Sup. pp. 20—23. Court Excheq. Judgment in re Gorham, July 8, 1850. 48 Courts of Common Law [Ch. III. or ordinary, and from him to the Metro- politan or Archbishop, and from him to the King, and no further (if such was the effect of the statute), did but restore the ancient law of the land as settled on this point by the Constitutions of Clarendon in the reign of Henry II., anno Domini 1164." Here two distinct propositions are involved. (1) That the ancient law of the land gave appeals in all causes ecclesiastical in final resort to the King. But this is altogether wide of matter of fact. Because the ancient law of the land, from the earliest records to the date of which the learned Barons were speaking, 1534, not only gave no final appeal in causes ecclesias- tical to the King, but absolutely forbid his de- ciding any such causes whatsoever, as may be seen by reference to the abundant proof of this fact which shall be hereafter given. (2) The second proposition involved in the learned Barons' averment is, that their asserted pro- vision in the ancient law of the land was settled on this point by the Constitutions of Clarendon. This is equally wide of matter of fact, as may be seen by reference to the 8th of those Constitutions recited above, at p. 11. What that Constitution, the only one of the whole sixteen Articles ratified at Clarendon, which touches our present subject, did settle was, that all ecclesiastical controversies should within the realm be finally decided in the Archbishop's Court, and that is directly con- Seo. 8.] on Appeal to U. H. of Convocations. tradictory to the assertions of the learned Barons on this point. Now, considering that the learned Barons did not, as it was unlikely they would, adopt the historical essay of the Court of Queen's Bench as grounds for their de- cision ; considering that so far from adopt- ing the criticisms of the Court of Com- mon Pleas, on the concurrent authority of the text writers, as such grounds, they in terms dissented from those extraordinary sallies ; and, considering that they averred some other grounds for their conclusion, which admitted the theory of a double and concurrent appeal, it should be clearly under- stood that the matter was differently ruled on different grounds in the different Courts. The history of the Court of Queen's Bench was misliked by the Court of Common Pleas, the interpretation of the text writers by the Court of Common Pleas was misliked by the Court of Exchequer, and if the learned Barons had (1) been rightly informed on the subject of the Royal divorces in 1533, 1536, and 1540, (2) if they had been acquainted with the ancient law of the land, and (3)Mf they had studied the Constitutions of Clarendon in their integrity, one must suppose, from the tenor of their own argument, that even their hypo- thetical agreement with the other two Courts would have been impossible. For their three asserted grounds for that hypothetical agree- 50 Courts of Common Law, Sfc. [Ch. III. ment are not only no grounds at all, but the subject-matter of" them, if rightly reported, leads by the adopted mode of argument straightway to a directly contradictory con- clusion. In place of no appeals to Convo- cation having taken place since the passing of the statutes, the most imposing instances of such proceedings had occurred. In place of the ancient law of the land being restored by the statute of 1534, and having given eccle- siastical appeals in final resort to the Crown, the ancient law of the land was diametrically opposed to the statute of 1534, and had consistently, continuously, unintermittingly forbidden such proceedings. In place of the Constitutions of Clarendon having settled such an asserted practice, it was by them dis- tinctly laid down, that it should never, under any circumstances, be adopted. It is moreover, amid such contradictions, very encouraging to reflect, whatever conclusions against the sole authority of the Convocations in the matter before us were arrived at by the learned Barons in the Court of Exchequer in 1850, that two of the present ornaments of that Bench, at least, unless they have seen cause entirely to change their minds since, enter- tain the very strongest convictions against the correctness of a judgment which they then most eloquently deprecated. It is quite idle to say that . there was a united agreement among our three Common Sec. 9.] Archbishops' Courts absolutely Final. 51 Law Courts to the effect that the Upper Houses of Convocation were not final re- sorts in matters touching the King. The justices of the Queen's Bench and Common Pleas doubtless have so decided, but upon grounds such as have been above detailed. The Barons of the Exchequer have not so decided, but have admitted the theory of a double and concurrent appeal. Yet even that approach to the decision of the other two Courts was based on different grounds from those by them adopted. And, so as the Courts have varied in their judgments, and, what is still more noteworthy, have supported all their antagonism to the Convocational juris- diction on dissimilar grounds, of which by far the most important turn out upon inquiry to be no grounds at all, it is but reason to believe that the Upper Houses of Convocation are by statute law courts of final appeal in " matters touching the King." In this belief one closely adheres to the plain meaning of the words of the statute book, and prudently abstains from contradicting the concurrent authority of an unbroken chain of all the text writers on the subject. Having considered the first bishopJcourts change referred to as made by lutdyfi^d. the G " reat Statute of Appeals : viz. the establishment by Act of Parliament of the Upper Houses of Con- vocation as final appeal courts in " mat- 24 Hen. VIII. 12.9. 24 Hen. VIII. 12. 2. Doubts suggested in [Ch. III. ters touching the King," some remarks will now be made on the second change above set down as effected by that statute in 1533. The power of the Crown to permit an appeal to Rome from the Archbishops' Courts, as allowed by the Constitutions of Clarendon, was now for such classes of causes as were specified by the Act statutably annihilated, so that the Archbishops' Courts became abso- lutely final in those causes unless they " touched the King." io. Doubts sug. But though the statute is un- fof*" E£ei he deniably and unequivocally explicit judgments." on this subject, a high ecclesias- tical authority of the present day, while deprecating the disunion which it is sug- gested must have arisen from allowing the independence of two Metropolitans, and seem- ing also to have for the moment forgot- ten that methods for securing harmony and unity between neighbouring provinces and Metropolitans are not altogether un- heard of in the history of the Church, has lately affirmed as follows : — " Obviously, the national unity could not be guarded by leav- ing each Archbishop irresponsible, hence it is scarcely probable that this arrangement was ever tried even as a temporary expedient for one year." But upon what this impro- bability is grounded, considering that the arrangement was decisively and in terms quite unmistakeably set out on the face of Sec. 10.] " Ecclesiastical Judgments." the statute book, it is somewhat puzzling to discover ; and, in fact, one would have been left quite in the dark on this point if we had not found some light thrown upon it in a subsequent passage of the volume published under the same authority. We are there informed again (Introduction, p. xxxviii.) that it is doubtful if the Archbishops would have been allowed to decide finally on the causes specified arising within their several jurisdictions. And the reasons for the fore- going asserted improbability and doubt are then distinctly assigned in the following words : " Notwithstanding the stringency of the language used (viz. that the causes shall be finally determined without any other pro- cess or appeal), it might have been held that an appeal lay of common right to the King, as it was afterwards held that a Commission of Review might be issued notwithstanding the provisions in the statutes." Now, though it must be frankly admitted that these reasons for the suggested improbability in the " Pre- face," and for the doubts raised in the " Introduction " of the volume referred to have only clerical initials subscribed, yet it is tolerably clear from internal evidence that all the advantages of assistance and advice from some member, if not members, of the learned profession on this matter were secured, and in- deed the title-page of the book, and the con- tents of the advertisement at p. xxii. tend to 53 24 Hen. VIII. 12. 6, 7. Eccl. Judg- ments, &c, Introduc. 54 Archbishops' Courts absolutely Final. [Ch. III. lust. 341. Cod. 1083. Eccl. Law, vol. i. p. 56. 26 Hen. VIII. c. 1. confirm such a conviction. If so, it is a fair ground of serious complaint that any learned gentleman or gentlemen should thus mislead the unwary and confiding, and should thus impose on simpler joint authors. For surely gentlemen of the long robe must know (or if they do not, here is a more serious complaint still, that they advise in great ignorance) that the Court of Review, according to Coke, Gibson, Burn, and all other text writers on the subject, was in terms exclusively and wholly in the affirmative sense founded on a statute which was not passed, to speak most guardedly, till at the least nineteen months after the Act before us which constituted the Archbishops' Courts final resorts. And there- fore neither the example of the Court of Re- view, nor the grounds on which it was founded, can with any, even the least, truth, or reason, or propriety be invoked to disable the pro- visions of the preceding statute, 24 Hen. VIII. 12, during the " one year " which immediately succeeded its enactment. It is now time to take leave of the legisla- tion of 1533, at the same time begging for- giveness of the reader for having detained him so long at this period of our legal and ecclesiastical history. My apology must be sought in the exceedingly rough treatment which the Act 24 Hen. VIII. 12 has re- ceived from various quarters, and meanwhile in the vital importance to the Church that its Sec. 10.] Jus Cyprium. 55 provisions respecting " matters touching the King " should be maintained in their in- tegrity. The importance of those provisions it requires no remarkable ecclesiastical or constitutional foresight to realize. The Act itself, both in its preamble and in its contents, is a noble monument to Church authority consecrated among the annals' of the country as a record of the true distinctions between functions civil and functions ecclesiastical. It was the statutable sanction of the restora- tion of the " Jus Cyprium" to this national Church. But these facts, so far from re- commending it to willing obedience and dutiful regards, seem to have produced quite the contrary effects. For our Common Law Courts, as above detailed, have, at the expense of law and facts, and in defiance of the highest authority, treated its statutable provisions in a most unfilial spirit of legal re- bellion ; and the authors of the above quoted volume lately published have not only con- tradicted the patent evidence of history, but have invented highly imaginative and abso- lutely untenable suppositions in attempting to disable its powers. Cone. Eph. Cau. 8. Tbeoph. Angl. p. 164 sq. Eccl. Judg- ments, Introduc. xxxviii. 11. 5, 6. Pref. ix. 1. 31 sqq. Introduc. xxxviii. 1. 11 sqq. 56 25 Hen. VIII. 19, a.d. 1534. Vid. Sup. p. 14. 25 Hen. VIII. 19. 3. 25 Hen. VIII. 19. CHAPTER IV. REMARKS ON -THE CHANGE INTRODUCED BY 25 HEN. VIII. 19, A.D. 1534. 1. Jurisdiction of Upper Houses of Convocation as Pinal Appeal Courts, continued. — 2. Establishment of Court of Delegates. — 3. Power of the Crown extended. — 4. " Reformatio Legum." — 5. Modern Arguments touching Court of Delegates. — 6. Ex- ample of Thomas Cromwell invoked in Ecclesiastical Judg- ments. — 7. Some Conclusions. 1. Jurisdiction of Upper Houses of Con- vocation as Final Appeal Courts, con- tinued. By the general terms of the 3rd section of 25 Henry VIII. 19, usually called the " Clergy Sub- mission Act," the jurisdiction of the Upper Houses of the Convoca- tions as Final Appeal Courts was continued, and indeed enlarged, so as to embrace all eccle- siastical cases, " what cause or matter soever they concerned," if they " touched the Eng." „ ^ t ri . , As regards all other ecclesi- 2. Establish- ° ment of Court astical cases, that is to say, such as did not " touch the King," an appeal was now given by the 4th section of the above-mentioned Act to the Crown in Chancery, whence delegates were to be appointed in each case of appeal jpro hdc vice. Hence the origin of the High Court of Delegates in causes ecclesiastical, and their Court of Delegates. 57 decision, according to the terms of the statute, 25 Hen. vm. was to be : — 19 "good and effectual, and also definitive ; and no further appeals to be had or made from the said Commissioners for the same." One readily yields to the temptation here of setting down the exact words of the statute, in order that the reader may have the advan- tage of admiring the remarkable ingenuity of those members of the learned profession, who justified, in the time of Queen Elizabeth and of 39 Eliz - King Charles L, the practice of constituting 4 Car. 1. a Court of Review, notwithstanding the statu- table words above recited, to revise, and it might be to reverse, the decisions of this Court of Delegates. If that justification had been maintained by a high prerogative lawyer cutting, after the fashion of a dragoon, sword in hand, headlong through the statute, one's interest in the enterprise might perhaps have been less sensible ; but considering that the course pursued claims to be conducted ac- Gibson's Cod., cording to the approved methods of forensic P engagement and argumentative warfare, one may venture to point it out as remarkably in- structive. However, as the Court of Review has been statutably abolished, and is not 1^92^3"' necessarily connected with a due discussion of our particular subject, enough has been said. 3. Power of the Crown extended. Previously to the year 1533 and the enactment of the Great Statute of Appeals, the power of the Crown 24 Hen. VIII. 12 58 Court of Delegates. [Ch. IV. Sup. pp. 14. 50. Eccl. Judg- ments, Introduc. lii. and passim. in causes ecclesiastical was confined to per- mitting an appeal to be carried from the Archbishops' Courts to Eome; but now, as we have seen, that permission having been barred by law, and the Crown having further obtained statutable authority, by 25 Hen. VIII. 19, to appoint a Court of Delegates to receive appeals within the realm from the Archbishops' Courts, a new principle, hitherto entirely unknown to English jurisprudence, was introduced into this Country. For as there was no specification in this statute restricting the choice of delegates, it was rendered pos- sible for the Crown to appoint laymen to the office. Beyond doubt such a possibility was then introduced, and though in some cases of ecclesiastical cognizance — such as those of wills, tithes, obventions, and divorces — no religious objections could be reasonably raised against laymen as judges in the last resort, yet it is very plain when questions of doctrine and of spiritual learning come into question that the whole question assumes a totally different aspect. A remarkable confusion upon this point seems to exist in the minds of some persons who have lately devoted themselves to an inquiry on our subject. And though a strenuous endeavour has been made to show that there was a deliberate national intention then existing of introducing laymen as judges of doctrine in final resort, yet many people are entirely unconvinced by 4. Reformatio Lesrum. Sec. 4.] " Reformatio Legum." the arguments produced in proof of this asser- tion, and it certainly seems that very good reason for being dissatisfied with them may be found in the following considerations. By the same statute which es- tablished the Court of Delegates for causes ecclesiastical, a commission of thirty-two persons was established to revise the ecclesiastical law of this country; and it may be fairly presumed that the principles adopted under that provision would be the same as those which under- lay the general intention of the Act. This matter originated with the consent of the clergy to the revision of the ecclesiastical laws on May 15, 1532. The plan first re- ceived statutable authority in 1534, by the Act before us, and the matter seems con- tinually to have engaged the attention of our authorities in Church and State, for we find enactments on the subject again repeated in 1536 and 1544, and in the following year, 1545. Consequently upon the latter statute a draft of the laws was brought to such per- fection that it wanted nothing but the Royal confirmation, and indeed a letter was drawn up for that purpose for the King to sign. However, from some unexplained reason, this code was not published in the reign of King Henry VIII. Subsequently, in the Canterbury Convoca- tion of 1547, the first year of King Edward 59 25 Hen. VIII. 19. Sec. 4. Cone. M. B. iii. 754. 27 Hen. VIII. 15. 35 Hen. VIII. 16. Strype's Cran. 133. Ibid. App.No. xxxiv. 60 " Reformatio Legum." [Ch. IV. Cone. M. B. iv. 15. Strvpe's Cran. p. 271. Ref. Leg. ad init., Strype's Cran. 271. VI., we find a petition from the Lower to the Upper House, couched in these words, " That provision be made that the ecclesiastical laws may be examined and promulged according to that statute of Parliament in the 35th year of King Henry VIII." And so the matter was again revived statutably by 3 & 4 Ed. VI. 11, and in the fifth year of that King, 1551, the following thirty-two persons, -in accordance with the provisions of the statutes above referred to, were appointed to bring the matter to a final issue. Archbp. & Bps. Divines. Civilians. Lawyers. Canterbury London Winchester Ely Exeter Gloucester Bath Rochester Mr. Taylor Almoner Cox — Parker — Latimer — Cook — P.Martyr — Cheke — J. Alasco Mr. Peter — Cecyl Sir Thos. Smith — Taylor Dr. May Mr. Traheron Dr. Lyel Mr. Skinner Justice Hales — Bromly — Goodrick — Gosnal — Stamford — Carel — Lucas Recorder Brook. Although these thirty-two persons were now appointed in accordance with the pro- visions of the statutes, it appears from a letter of King Edward VI., dated from Westminster, Nov. 11, 1551, that out of this number eight were specially selected for the management of the business ; that is to say, out of the Pre- lates, Archbishop Cranmer and the Bishop of Ely ; out of the Divines, Cox and P. Martyr ; out of the Civilians, Taylor and May ; out of the Common Lawyers, Lucas and Goodrick. They applied themselves closely to the work, the Archbishop supervising the whole; and the result of their labours is that well-known Sec. 4.] " Reformatio Legum." book entitled, " Reformatio legum Ecclesiasti- carum ex authoritate primum Regis Henrici VIII. inchoata : deinde per Regem Edovardum VI. provecta adauctaque in hunc modum, atque nunc ad pleniorem ipsarum reformationem in lucem edita." This revised code of ecclesiastical law never received Royal ratification, in accord- ance with the statutes under which the en- terprise was carried on. The matter was delayed, " partly by business and partly by enemies," and on account of the early death of the young King, and the change of policy in the next succession, the whole matter slept. But though the contents of this code are not legally binding, it is of extreme historical value, as showing what were the opinions of our reforming statesmen and divines on the subject here treated of, what were the regu- lations which they thought expedient for the welfare of the nation and of the Church, what were the intentions of the Legislature, and what would have been the authoritative rules of ecclesiastical law and policy if those intentions had been fairly and finally carried out. For it is to be remembered, that we have embodied in the " Reformatio Legum" not haphazard thoughts thrown off under stress of time, but the well-digested results of the labours of the most renowned divines and statesmen, undertaken and carried on under the auspices of two proceedings in 61 Strype. Cran. 271. Cone. M. B. iii. 754. Ibid. iv. 15. 62 "Reformatio Legum." [Ch. IV. 25 Hen. VIII. 19. 27 Hen. VIII. 15. 35 Hen. VIII. 16. 3 & 4 Ed. VI. 11. Ref. Leg. in Tit. 25 Hen. VIII. 19. Ref. Leg., De Jud. Cont. Hser. c. i. Ref. Leg., De Appel. c. xi. Convocation, of four Acts of Parliament, of at least two Commissions, and under the special directions of two successive Sove- reigns. And as these labours were statutably originated by the selfsame Act as that which established the Court of Delegates it is surely to the "Reformatio Legum" that we may fairly look for an enunciation of the principles and a direction of the practice which, as was then intended, should govern that Court in causes ecclesiastical. Moreover, the contents of the book itself confirm the reasonableness of such a conclusion. Now, in the first place, it is observable that in this book, under the title De judiciis contra hmreses, the very subject of our inquiry, the first chapter lays down the gradation of the proceedings in exact accordance with the statute establishing the Court of Delegates : viz. " From the Bishop to the Archbishop, and from the Archbishop to^the Crown." And then, under the title De Appellationibus, the subject of appeals is fully treated of, and in the 11th chapter the whole gradation is specifically laid down. There the appeal from the Archbishop's Court, as settled by the statute 25 Hen. VIII. 19. 4, is mentioned as lying to the Crown, and then these words are put into the Sovereign's mouth : " And when the cause shall have been referred hither we desire to conclude it by a provincial synod, if it is an important case, or by three or four Sec. 5.] Court of Delegates. 63 bishops to be appointed by us for the pur- pose '." Thus we learn of what the Court of Delegates for the purposes under view was in ordinary cases to have been composed, i. e. of three or four bishops, according to the spirit and intention of our reforming divines and statesmen, and it may be fairly supposed of the legislation which established it. In the more important causes it was ruled that the appeals from the Archbishops' Courts to the Crown should be settled, not by dele- gates at all, but by reference to a provincial synod, thus assimilating the final resort in such causes to that which was already statu- tably established for " cases touching the King." Notwithstanding this evident arguments intention, that the final resort in o^Deiega^r 4 ecclesiastical appeals should be a spiritual one, i.e. either to a Convo- cation or to three or four bishops, as testified by the above-mentioned results of the Com- missions appointed under the provisions of the same statute which gave appeals from the Archbishops' Courts to the Crown, the most laborious endeavours have lately been made 1 "Ab Archidiaconis, Decanis et his qui sunt intra pontificiain digni- tatem, et jurisdictionem Ecelesiasticam habent, ad Episcopum liceat appellare, ab Episcopo ad Archiepiscopum, ab Archiepiscopo verd a. Bp. of Norwich. Arguments suggested by, Sfc. from the legal advocates engaged before it, and to render subsequent apologies and explanations necessary on the part of the chief mouth-piece of the Court, — however well, I again repeat, some people may think that such a Court does its work, yet other people may be of quite a contrary opinion, and so upon such debatable ground it is no part of my intention here to enter at length. But as regards the three, former of the foregoing suppositions, suggesting — 1, that no great principle "religious ;" 2, that no great principle " ecclesiastical ;" 3, that no great principle " political," is contravened by the establishment and existence of this Court — as these suggestions involve matters of fact, not of opinion, it is quite worth while to consider them with some particularity. In truth, these three suppositions shall serve as heads for the treatment of the subject before us, and I think it can be shown as matter of fact, and beyond all controversy, that the present Court of Final Ecclesiastical Appeal in England does contra- vene great and acknowledged principles — 1, Religious ; 2, Ecclesiastical ; and 3, Political — in as direct a manner as can well be conceived. Under these three heads, then, thus suggested by the sentence above quoted, some remarks shall now follow in order. Religious Principles contravened, Sfc. CHAPTER VIII. THE COURT CONTRAVENES GREAT PRINCIPLES 1. A Final Court not only interprets, but constructs. — 2. The Court contravenes a Principle established by "our Lord Himself. — 3. Contravenes a Principle confirmed in the Primitive Church by the Council of Jerusalem. — 4. Contravenes a Religious Principle adopted by the English Civil Legislature. — 5. Contravenes a Principle expressed by devout minds of antiquity. — 6. Contra- venes a Principle expressed by devout minds in later times. — 7. Marked distinction between Spiritual and Civil authority. i. a Final Now, as a first and foremost objection to the existence of this constructs. Court, I assert that it contravenes a fundamental religious principle which was established by our Lord Himself, adopted by His Apostles, and followed in the practice of the Primitive Church. That principle was, that the "teaching of the Word" should belong to those called to the Christian ministry, and not to others. But this Court, in effect, assumes authority over the " teaching of the Word " in the very widest and highest sense, though by the general law the Court is com- posed exclusively of laymen, not one single ordained person being numbered among its members. One is quite aware that it may be said that 90 Religious Principles contravened [Ch. VIM. Hans. 3rd S. vol. cxi. p. 643. it is no duty of a Court to construct doctrine, but only to apply doctrine already settled to the particular case under hand. The Judi- cial Committee, in Lord Campbell's -words, " was merely a Court of construction, its duty was to explain the meaning of legal docu- ments." This is a principle generally ad- mitted, and one which has been frequently declared by the Court itself. Doubtless the framers of doctrine for any Church, whether established or unestablished, are not properly any Courts whatsoever, but the synods of that Church. The Liturgy, Articles, and Canons of the English Church are the ex- ponents of her doctrines, and they have been defined by her synods. Indeed, this is the very footstone of the compact between Church and State, that the code thus framed and subsequently accepted by the civil power should be the law which every Court, whether ecclesiastical or civil, is bound to apply in questions of doctrine to each case submitted to its judgment. And so it may be colourably said, if this Court has only to apply doctrine already established to the case before it, and is never formally charged with the construction of new doctrine, that it is in no sense a " teacher of the Word." But to this proposition, on consideration, one can no way assent. For though the Court is not charged with authority to con- struct new doctrine, it is clear that the prac- Sec. 1.] by Court of Final Appeal. 91 tical effect of its decisions may be to do so. And while the Judicial Committee itself dis- claims either the power or the intention to frame new doctrine, yet every one must know, in the words of the late Bishop of London, — " how much of the law of the land has been made by the decisions of the judges. Every decision of a point of doctrine by the Judicial Committee would form, as in other Courts of Final Appeal, a precedent. Such precedents settle or modify the law, and at last become law themselves. And thus a Supreme Court of Justice may, in some sense, not only ad- minister, but make laws." Such is in effect emphatically and unmis- takably the case with the Court before us ; for it is plain that after a final judgment of this tribunal accrediting or disallowing any particular doctrine, such doctrine might be either legally affirmed or legally denied throughout the whole region of the Church's instructions. And so, while, according to its own declarations, the Court has no power to touch the faith of the Church, yet the in- structions given to the people might be most assuredly affected. For supposing the Court to err, that which was not the Church's doc- trine might be taught with legal impunity and commendation, while that which was the Church's doctrine would be legally forbidden. Thus, while the presumed duty assigned to this Final Appeal Court in matters involving Hans. 3rd S. vol. cxi. p. 609. 92 Sup. pp. 58 — 62. Counc. Brasted. Spelm. i. 194. Mag. Car. ad init. Religious Principles contravened [Ch. Vlil. doctrine is simply to interpret, not to construct, vet it is but too likely that under the guise of in- terpretation the work of construction may from time to time be carried on. And this thought may perhaps throw some light on the wisdom of our forefathers in the Church, who made Synods and not Courts the tribunals of final appeal in cases of disputed doctrine, in ac- cordance with that venerable legal maxim, Cujus est condere ejus est inter prretari. And it may also commend that provision in the "Re- formatio Legym" above detailed, which com- mitted "a weighty cause" when referred to the Crown to a provincial synod in final resort. For in such case the final tribunal would be endowed not only with power of interpre- tation, but at the same time with power of construction too, and so could fearlessly, fully, and authoritatively deal with all ques- tions which might be submitted to its judg- ment, whether previously defined or not ; as, for instance, in the case of a new heresy being invented, — a contingency not altogether un- known in our own days. It is indeed quite clear that the ancient and time-honoured principle of our Constitution in Church and State, so early laid down, so often subsequently ratified, that the Church should be " free in her judgments," was established under the firm and reasonable conviction that final authoritative judgments on questions of faith or doctrine are the very — i — Sec. 2.] by Court of Final Appeal. 93 highest expression of the " teaching of the Word." The proposed effect of such judg- ments is, beyond all controversy, intended to govern and define the ministration of the Word throughout the whole region of the National Church. And such final judgments are practically a " teaching " of far more im- pressive influence, of far more powerful effect, and of far wider extent, than the teaching of any individual preacher whatsoever, or, in- deed, of any number of individual preachers. For the influence of such judgments is authoritatively directed and charged to pre- vail throughout the entire range of the Church's instructions, whenever, wherever, by whomsoever given. This, then, to revert to our 2. The Court contravenes a principle es- argument, supplies the first objec tablished by our Lord Him •self. tion to the present Court, that by practically submitting " the teach- ing of the Word" to a body of laymen, it contravenes a great principle — "religious." For that must be considered a great religious principle which was established by our Lord Himself, ratified by His Apostles, adopted by the primitive Christians, and handed down through every succeeding age of the Church , even to our own. It is, in the words of the late Bishop of London, " the inherent and indefeasible right of the Church to teach and maintain the truth by means of her spiritual pastors and rulers, a right inherent in her Hans. 3rd S. vol. cxi. p. 619. 9-t S.Mark vi. 37. Ibid. iii. 14. S. Matt. x. 5. Ibid. 7. S. Luke x. 1. Ibid. 16. S. Jobn xx. 19 —24. Ibid. 21. S. Mark xvi. 15. Religious Principles contravened [Ch. VIII. original constitution, and expressly granted to her by her Divine Head in the terms of the Apostolical Commission." Indeed, that command which the Lord, multiplying earthly supplies for the hungry multitude in the desert, addressed to His ministering servants, — " Give ye them to eat," — is but typical of the power and duty of feeding His people with the bread of life which He conferred on those whom He chose to. teach His "Word when " He ordained twelve that they should be with Him, and that He might send them forth to preach " — when He " sent forth " those twelve to " preach, saying the king- dom of heaven is at hand " — when He " appointed other seventy also, and sent them two and two before His face into every city and place whither He Himself would come ;" meanwhile fortifying them with this assurance, "He that heareth you heareth Me ; and he that despiseth you despiseth Me ; and he that despiseth Me despiseth Him that sent Me " — when He said to the Ten, as they were gathered together on the evening of the Resurrection, " As My Father hath sent Me, even so send I you" — when, as the Eleven sat at meat, He empowered them to teach the Word, saying, " Go ye into all the world, and preach the Gospel to every creature " — and, when lastly, He gave on the Galilean Mount that final commission to His Apostles, which should, according to His own declaration, Sec. 3.] by Court of Final Appeal. 95 reach down by a continuous succession to every age of His Church, "Go ye therefore, and teach all nations .... teaching them to observe all things whatsoever I have com- manded you : and, lo, I am with you alway, even unto the end of the world." 3. Contra- This fundamental principle, es- venes a prinei- tablished and consecrated bv our pie confirmed J in the Primi- Lord Himself — that those who tive Church by , the Council of were called and ordained to be His ministers should be the authorized teachers of His Word — was distinctly recog- nized and acted upon in the Primitive Church. For it clearly formed the footstone of her authoritative proceedings in resolving doubts in matters of faith which early arose within her borders. That primitive Christian Council — the Council of Jerusalem — (providing a pattern for subsequent synods, as it does for the English Convocations, — bishops and pres- byters there uniting in council) was sum- moned about seventeen years after our Saviour's Crucifixion, to determine, among other matters, a question which had arisen at Antioch as to the necessity of circumcision among the Gentile converts to Christianity. For the settlement of this question it was agreed that SS. Paul and Barnabas should go up to Jerusalem. And on due consideration of the sacred narrative it is clear that in the early model Christian council then held in S. Matt, xxviii. 19, 20. 96 Religious Principles contravened [Ch. VIII. Acts xv. 2. Ibid. 6. Tbid. xvi. 4. Ibid. xv. 22. Ibid. 23. Text uncertain. that city, this principle was closely adhered to, that questions of doctrine and spiritual discipline should be decided by the ordained teachers of the "Word, the " Apostles and Elders," and by them only. For when SS. Paul and Barnabas went up to Jerusalem we are distinctly informed (1) that it was " unto the Apostles and Elders about this ques- tion " that they were sent, and to them only. (2) We are told with equal distinctness that, " the Apostles and Elders came together for to consider of this matter," and they only. (3) And further, the judgment given at this council is afterwards mentioned in Holy "Writ as having been determined by the "Apostles and Elders," and by them only. For when S. Paul proceeded on his second journey, in company with Silas, as they passed through the cities, " They delivered them the decrees for to keep that were ordained of the Apostles and Elders which were at Jerusalem." It is fully admitted that " the whole Church" at Jerusalem joined with the Apostles and Elders in sending messengers to Antioch, and it may be that the " brethren " joined with the Apostles in the encyclical letter thither de- spatched. But those are acts which might well become the lay brethren in every age. "What is here maintained is, that SS. Paul and Barnabas were sent to the " Apostles and Elders," and to them only — that the "Apostles Sec. 4.] by Court of Final Appeal. 97 and Elders," and they only, came together for deciding the question ; and further, that the judgment is mentioned in the sacred narrative as that of the "Apostles and Elders," and of them only. Now this fundamental principle of the Christian Church, ordained by our Lord Him- self, and illustrated by the early practice of primitive times — that it is "the inherent and indefeasible right of the Church to teach and maintain the truth by means of her spiritual pastors and rulers," may be distinctly affirmed to be a great religious principle. And this great religious principle is directly contravened by the action of this Court of final appeal; which has, as a fact, adjudged, in defiance of the authority of English bishops and archbishops, that certain doctrines by them disallowed may lawfully be preached in the Church of England. 4. Contra- Of course no one who is at all venes a reli- • . n • .i t n gums principle acquainted with some modern torms ggg S e of thought which have become rife Legislature, among us of late, can overlook the fact that any claim for the spiritu- alty to be the final arbiters of the rule of faith in the Church, will in many quarters be received with a sneer. This endowment of the Lord Himself, ratified by Apostolic example, commended by the practice of the primitive Christians, and handed down by a continuous succession through every age of the Church, will doubtless by many be disallowed. For the H Bp. of London, Hans. 3rd S. vol. cxi. p. 619. 98 Works, vol. i. p. 112. Senn. vol. i. p. 23. 3 & 4 Will. IV. 41. Religious Principles contravened [Ch. VIII. great truth on which this endowment now depends, thus enunciated by Archbishop Bram- hall — " Apostolical succession is the nerve and sinew of Apostolical unity;" and thus confirmed by Bishop Beveridge — "Aposto- lical succession is the root of all Christian communion" — is too apt to be made light of. But what private persons may affirm or deny on this subject can by no means be reasonably allowed to affect the present argu- ment. The question is not what any private opinion may be, but this is a direct issue between the Church and the State, certain pre- misses having been admitted by both. The State has established a Court of laymen for trial of doctrine, in direct defiance of the prin- ciples which the State has itself professed, and of this the Church may reasonably complain. I say the State has established such a Court, for it is idle to introduce the questions of Royal prerogative and supremacy into this inquiry. The Judicial Committee of Privy Council is a new statute law Court, depending for its existence on a late Act of Parliament, and is now unmistakably and unequivocally a creature of modern legislation. Whatever, therefore, may be the results of private judg- ment or private opinion on the matters under consideration, the real questions are, What does the State profess to hold on the doctrine of Apostolical succession, its effects and its Sec. 4.] by Court of Final Appeal. 99 necessary results and consequences ? And has the State in the establishment of this Court contravened principles to which the State is itself wholly committed, and which it has itself formally and solemnly adopted ? Now what the State does hold in this respect is manifest from the contents of the Book of Common Prayer, which has been adopted by the State under the sanction of statute law. The whole theory of the offices in that book, from beginning to end, is based on the doctrine of an Apostolical succession, with the accompanying powers and gifts. As a marked example, among a legion of others, one may specify the second ordination service ; and that, with all other parts of the book, has been accepted by the State, and has had the seal of an Act of Parliament set to it. Thus, in a question between the Church and State, it is quite needless to go about either to prove on the one hand the historical fact of a direct Apostolical succession, or on the other the necessity of it, whether to the existence or perfection of a Church. All this, on proper occasion, might well demand research, learning, and proof. But for the present purpose is quite needless in a case where both Church and State are unmis- takably agreed ; for they both assert in common this great religious principle before us — a principle diametrically contravened by the action of the present Court. H 2 13 & 14 Car. II. 4. 100 Religious Principles contravened [Ch. VIII. Horn, in Verb. Is. Vidi Dom. p. 757, Paris, 1636. Ibid. p. 758. De Sac. iii. 5. 5. Contra- venes a princi- ple expressed by devout minds of anti- quity. spiritual seems to To proceed : that a great prin- ciple religious is contravened by- subordinating the spiritual to the civil authority in matters of pure cognizance, is a truth which have been present to the most devout minds of venerable antiquity. And it is a truth, moreover, which has found utterance in the most eloquent language, in successive ages of the Church. S. Chrysos- tom writes thus : — " Distinct are the limits of the temporal kingdom from those of the priesthood, nobler is the power of the latter The King must not be judged of by the gems which stud his apparel, nor by the gold with which he is adorned. His province is to rule earthly things, but the authority of the priesthood reaches to heavenly things — whatsoever ye shall bind on earth shall be bound in heaven. To the King are entrusted earthly things, to me heavenly things." And the same revered authority in another place enforces the like thoughts in the fol- lowing golden words : — ■ " To the King's authority are entrusted men's bodies, to the priests' their souls. The King remits their debts, the priest their sins. The one compels, the other exhorts. The one acts by force, the other by persuasion. One wields sensible weapons, the other spiritual. He wars against barbarians, I against the evil angels, and the latter is the nobler exercise of power." And again — " Civil rulers have power to bind on earth, yet so far only as men's bodies are concerned ; but this (the spiritual) bond applies to the soul, and reaches to heaven." Of this distinction between spiritual and temporal authority, S. Jerome speaks in the words following : — ■ Seo. 5, 6.] by Court of Final Appeal. 101 "The King governs the subjects whether they will or not, the bishop governs none but the willing. One keeps them in subjection by law, while the other is in some sort their servant. The one holds men's bodies in custody for death, the other preserves their souls for life." 6. Contra- To come down to later times, venes a princi- n • , i , i n , n pie expressed and recalling the thoughts oi some minSkter of tlie devoutest minds, we find the times. same sentiments to have prevailed. Thus writes Bishop Andrewes, of revered memory : — " The King in no way allows authority to be assigned to him of burning incense with Uzziah or of touching the Ark with Uzzah. . . . He does not assume the office of teacbing or of explaining the doubtful matters of the law [divine], or of preaching, or of ministering sacred rites, or of celebrating Sacraments, or of consecrating persons or things. He does not assume the power of the keys or of censure. To be brief, neither does he, nor do we, believe any authority to belong to him which respects the priestly office or depends upon the power of ordination. The King discards all this, and banishes it utterly." To the same purpose writes Bishop Bilson in several places : — " That princes may prescribe what faith they list, what service of God they please, what form of administering Sacraments they think best, is no part of our doctrine We give princes no power to devise or invent new religions, to alter or change Sacraments, to decide or debate doubts of faith, to disturb or infringe the canons of the Church We never said that princes had any spiritual power, and the sword which they beare we never called but externall and temporall, for the true spirituall and eternal sword is the Word of God." The learned Isaac Casaubon expresses the same thoughts when he distinguishes between internal spiritual authority and external co- active jurisdiction, in the following words : — Epitaph. Nepotiani, c.7. Tortura Tort, p. 380. Christian Sub- jection, p. 297. Ibid. p. 327. Ibid. p. 352. Hook. Eccl. Religious Principles contravened [Ch. VIII. " Priuces should consider that it is one thing to act as a priest, to interpret the Scriptures from the pulpit, to administer Sacraments, to bind and loose in the Name of Christ : that it is another thing to provide by their authority that the priest should perform those functions which pertain to the priestly office." It would be waste of the reader's patience to multiply further indi- 7. Marked distinction between spiri- tual and civil vidual testimony to this fact, that it has been held by the highest authorities in the Church from age to age that a great religious principle is involved in limiting controversies of faith to spiritual arbitrament. The decision of such questions has, if one may so speak, been always looked upon as a sacred inheritance, not to be abandoned at the challenge of any one ; as a Divine trust, entailing holy possessions not to be disposed of to any who should be so over bold as to lay claim to them. " The Church," said Ambrose, when urged by the younger Valentinian to give up her material fabrics to the Arians, " is the house of God, and those things that are God's are not to be yielded up and disposed of at the Emperor's will and pleasure. His palaces he might grant to whomsoever he pleaseth, but God's own habitation not so." And as the edifice of Christian truth is more fair, so it is more tender and fragile, than her material buildings, and should be maintained inviolate even with greater determination and more careful cir- cumspection. A most learned man has told us, that he Sec. 7.] by Court of Final Appeal. 103 accounted it " absurd " that Kings or Queens should hear and determine causes apper- taining to the Church, or " decide the ques- tions which do arise about matters of faith and Christian religion." He would not have the very highest lay authority, still less a delegated one, invoked for such a purpose. For those consecrated even to the most august civil office do not partake of that peculiar character, nor do they inherit those peculiar powers and duties with which the Lord of the Church has invested His servants therein called to the ministry of His Word and Sacraments. The acknowledgment of this fact was (as we shall see directly) uni- versal in the earlier ages of the Church, and has been maintained throughout the whole stream of history, and very distinctly in our own land, down to comparatively recent times. Indeed, by no thoughtful and devout mind can a distinction fail to be drawn between the powers of this world and the exercise of His delegated authority who has said, "My kingdom is not of this world." Our most venerated writers all bear testi- mony to this distinction. Hooker says — " Of this most certain we are, that our laws do neither suffer a spiritual Court to entertain those causes which by the law are civil, nor yet, if the matter be indeed spiritual, a mere civil Court to give judgment of it." The learned schoolman Field, speaking on the Vid. two next Chapters. Eccl. Pol. iii. 359, 360. 104 Religious Principles contravened [Ch. VIII. Of the Church, B. v. p. 646. Works, vii. 208. Ibid. 209. Serm. 57, vol. iii. p. 311. Vind. Ch. Eug. p. 228. De Civ. Dei. v. 24. subject of spiritual judgments, says — " We all teacli that laymen have no voice decisive, which may be confirmed by many reasons," some of which he proceeds with his usual eloquence to specify. Jeremy Taylor assures us that the intrusion of lay judges into spiritual arbitrations is "an old heretical trick," and he speaks of it as "a pretty pageant, only that it is against the Catholic practice of the Church, against the exigence of the Scripture, which bids us require the law at the mouth of our spiritual rulers." The learned Barrow contributes his testimony when he asserts that " the power of managing ecclesiastical matters did, according to primi- tive usage, wholly reside in spiritual guides." And finally, the golden-penned Francis Mason repudiates any other view than that main- tained by this stream of venerable authority when he asks — " Which of us did ever assert that princes are the supreme judges or de- terminers in controversies of faith and re- ligion ?" No indeed ! such assertions were never made by the wise and learned and good men of former days, they are reserved for our times, and their authors would do well to ponder on the weighty words of S. Augustine, in his " City of God," when he thus writes — " Those Emperors we call happy who . . . are not elated by tongues that extol highly, or obsequiousness that flatters humbly, but who remember that they are but men, and in pro- Sec. 7.] by Court of Final Appeal. moting the worship of God subordinate their own authority to His Majesty." In fine, that must be acknowledged to be a great religious principle which, being in- terwoven with the original establishment of Christ's Church on earth, was ratified by Apos- tolic precedent and adopted by the primitive Christians, which has been handed down and received as a governing religious principle in succeeding generations, which has been pre- sent as a religious principle to devout minds of all times, and has, as such, been illustrated by the venerable language of antiquity and the concurrent testimony of the worthiest writers of later ages. And thus I conclude this first fundamental objection to the Judi- cial Committee of Privy Council as a Court of Final Appeal in Spiritual Causes, by assert- ing that a great principle " religious," is con- travened by subordinating the judgments of spiritual persons to the judgments of lay persons in matters of faith and doctrine — a principle, as above said, not held by the Church only, but unequivocally adopted by the State itself, and moreover thus enshrined in one of the worthiest records among our country's constitutional archives, which tells us that, " The holy Church of England .... was founded .... to inform .... the King, earls, barons, and other nobles .... and the people of the law of God." Sup. pp. 97, i)8. 25 Ed. III. st. 6, s. 1. Ap. Gib. Cod. i. 76. 106 Ecclesiastical Principles contravened Eccl. Judg- ments, Pref. p. vii. CHAPTER IX. THE COURT CONTRAVENES GREAT PRINCIPLES "ECCLESIASTICAL." 1. Arbitration on Spiritual Questions restrained to Spiritual Persons, an Ecclesiastical Principle. — 2. A Principle confirmed by the examples of Christian Emperors. — 3. A Principle afiirmed by the most learned Canonists. — 4. A Dilemma. i. Arbitra- The next step is to show that tion on spiri- . t r* . . tuai questions the Court contravenes great prm- spSai pe^- ciples ecclesiastical, and here I must sons -an ec- frankly confess that it would have clesiastical * principle. appeared to me quite unnecessary to produce proof for any proposition so mani- festly plain as this, were it not for that hypo- thesis contained in the volume lately issued under very high ecclesiastical authority ; viz., that the present Court contravenes no great principle " ecclesiastical." Such a suggestion, coming from such a quarter, challenges, and doubtless among many persons will obtain, considerable credit. It seems therefore essen- tial to inquire whether it really has any foundation at all. Now if principles ecclesiastical mean, — and they can mean nothing else, — the principles which have governed the written laws of the Church, the regulations of Christian princes, by Court of Final Appeal. and the legislation of Christian kingdoms in relation to the Church from the earliest times, then it must be said that no ecclesiastical prin- ciple has been more unvarying and unchange- able than this, no exception, so far as I know, ever having in earlier ages interrupted its uni- versal adoption ; viz., that the authoritative arbitration of spiritual questions should be confined to spiritual persons. As regards the Church, from the Council of Milevi downwards, continuously and universally this principle has been plainly asserted. As regards the State, from the mixed Council of Brasted, a.d. 696, down to the great charter of King William I., in our own annals one declaration pervaded all national documents on the subject, and asserted that causes spiritual should not be submitted to secular tribunals. And this principle was sub- sequently consecrated for many centuries after- wards by the more formal legislation of this country, as we shall see in detail hereafter. To quote the decrees of patriarchs, metro- politans, and bishops, the acts and proceed- ings, the canons and constitutions of synods and councils, in confirmation of this point, would be to transcribe folios. And moreover, to attempt proof by such means of what is so transparently manifest on ecclesiastical re- cords, would be to pay a very ill compli- ment to one's reader, as betraying a most unpardonable suspicion of his competent knowledge of Church history. But though 107 Can. xix. Spel. Cone, i. 194. Blacks. Com. hi. 62. Infra, c. x. 108 Ecclesiastical Principles contravened [Ch. IX. Eccl. Judg- ments, Pref. vii. this means of proving the point before us shall be entirely eschewed, for the reason above mentioned, yet some evidence of another kind shall be produced which cannot be charged with ecclesiastical bias or priestly proclivities, and which from its courtly origin may perchance have greater weight with some minds than any ecclesiastical testimony whatever. Now it is distinctly to be under- stood, that in the following evidence, proving the point before us — that the present Court contravenes great principles "ecclesiastical" — not one single ecclesiastic shall be called on for his testimony. No canon, no constitu- tion of any synod or council whatever shall be invoked. Reliance will be placed on Royal and lay testimony only, and it may be hoped that such evidence, if ever they should happen to peruse it, may shake even the convictions of the contributors to the volume which has supplied this head of argu- ment. Now for evidence of this charac- ter on this point, we cannot of course go farther back than to the time when the civil power first acknow- ledged the truth of Christianity, and adopted it as the State religion — that is, to the age of Constantine the Great. Yet immediately after that event we find at once an abundant supply of the Royal testimony now desired. It is continued throughout the whole stream 2. A principle confirmed by the examples of Christian Emperors. Sec. 2.] by Court of Final Appeal. 109 ibid. Ibid. c. xvii. Ibid. c. xx. of subsequent history, and shall be produced in chronological order. The Emperor Constantine, when attending at the Council of Mce, though dazzling the l^-J 1 ,'* . Const. 1. 2, eyes of all beholders with the splendour of his apparel and the radiance of the gold and precious stones which adorned his garments, yet indicated his humility by his downcast eyes, a blush on his countenance, and the tenour of his whole demeanour. He professed himself the fellow-servant of those rulers of the Church there collected, and confessed that what was transacted in the sacred councils of the bishops was to be set to the account of the Divine will. And using the word " Episcopos " in its true meaning of overseer, he said, in no offensive sense to the Bishops, " Ye indeed are overseers of those things which are within the Church, I of those things which are without it." Indeed, in such sort did he regard the decrees of bishops I1,id - c - xxvii promulged in councils, that he forbad any secular magistrate to rescind them. And moreover, on the occasion of this great Council of Nice, testifying his joy at finding himself surrounded by so august an assembly, he declared that — ■ " He himself desired to appear in the council simply as one of the Man. Counc. p. faithful, and that he freely left to the bishops the sole authority to *"»*• settle the question of faith." Moreover, the public management of this Emperor was quite consistent with this rea- Ibid. 1. 4, c. xxiv. 1 110 Ecclesiastical Principles contravened [Ch. IX. Mosh. Eccl. H. p. 141, Helms. Soz. vi. 7. Eccl. Pol. B. viii. Ch. v. 2. Coll. Eccl. Hist, vi. 247. Ep. xsi. Val. Imp. Gest. Cone, quil. s. 5. sonable declaration, for " he separated eccle- siastical jurisdiction into two parts, external and internal ; the latter he left to bishops and councils, the external he assumed to himself." The Emperor Valentinian the elder, who died just fifty years after the Council of Xice, on a condemnation of Arianism being pro- posed, thus writes — " It is unlawful for me, who am placed among the laity, to meddle with matters of faith. Let then the priests and hishops, to whom this case belongs, meet apart by themselves wherever they will." Valentinian' s rescript adds its testimony — " Thy father enacted that in matter of faith or ecclesiastical order that person who is neither in office unequal nor in law unlike should be judge. These are the words of the rescript .... he willed that priests should judge of priests When did you hear that laymen ever judged bishop or priest in matters of faith ? Considering Holy Scripture or ancient times, who will deny that bishops are wont to judge Christian emperors, not emperors bishops. If I am to confer on the faith, the conference must be before priests, as was the case under Constantine of august memory, who did not initiate any laws, but left the judgment free to priests." The Emperor Gratian, the eldest son of | Valentinian the elder, succeeding his father in the purple a.d. 375, convened the Council of Aquileia on the explicit ground that ■ matters of faith should be settled by the spiritualty. And the testimony to this fact | we learn from words addressed to that as- sembly as follows : — " Lo, what a Christian emperor hath ordained. He would not wrong priests, he made bishops interpreters of the faith." The Emperor Theodosius the Great, who Sec. 2.] by Court of Final Appeal. Ill swayed the Imperial sceptre when the first Council of Constantinople against the Mace- donians was held, a.d. 381, made no scruple to confess that — " It is not lawful for a man who has not the episcopal character to interpose in religious affairs." The Emperor Honorius, born 384, who wore the purple between the dates of the Councils of Constantinople and Ephesus, and who took no part in any (Ecumenical Synod, yet delivered himself as follows : — " If any thing is to be settled in matters of religion, the judgment ought to be episcopal, for the interpretation of Divine things belongs to them ; to us the obedience of religion." The Emperor Theodosius II. appears as a most serviceable witness to our cause, coupled with his brother Emperor Valentinian III., though on the testimony of the latter one would not lay much stress in considera- tion of his youth at the period when his evidence was contributed. These emperors wielded the sceptre of the civilized world at the time of the Council of Ephesus, 431, and considerable patience must be exacted from the reader while pressing their somewhat lengthened testimony on his attention. Thus writes Theodosius II. to Cyril of Alex- andria : — Coll. Eccl. Hist. vi. 247. Epist. Honor, ad Arcad. " We will not permit this doctrine to remain unexamined, of which those must be the judges who bear authority in the priesthood, and by whose means we ourselves both are and will be maintained steadfast in the truth." Ep. Theod. ad Cyril. Labb. et Coss. t. 3, p. 436. 112 Ep. Theod. et Valent. ad Syn. Eph. Labb. et Coss. t. 3, pp. 443, 444. Eccl. Jud. Iut. xxxii. Edict, propos.a Praefectis apud Cone. Eph. Labb. et Coss. t. 3, p. 1216. Ecclesiastical Principles contravened [Ch. IX. The following is again the testimony of the brother Emperors to their conviction that laymen should not be allowed to interfere in authoritative decisions of faith. When they sent Candidianus, a layman, to represent the Imperial authority at Ephesus during the sessions of the third (Ecumenical Council, they signified by a letter under the inscription of their hands that he was despatched — " Under this restriction and condition, that he should in no way whatsoever interfere with questions and controversies concerning dogmas of faith. For it is impious in any man whose name is not enrolled in the most holy bishops' list to mix himself up in eccle- siastical business and discussion." And here it may just be remarked, as it were in a parenthesis, and by the way, that these Emperors thus gave no countenance whatever by this example to that odd figure which Thomas Cromwell assumed when sent by King Henry VIII. to a Canterbury Synod in later times, a mission insisted on with apparent satisfaction in the late volume pub- lished on our subject under high authority. In the same sense as the passage last quoted are the words of the prefectorial edict pub- lished with that same imperatorial sanction. " No dogma on a matter of religion ought to have any weight except that which has been approved of by the most reverend and most holy bishops, &c." And the testimony to our argument sup- plied by these two Emperors shall be now summed up in their own words, when they proclaimed in a solemn edict that — Sec. 2.] by Court of Final Appeal. 113 " No interference with ■ matters which were consecrated to the honour of religion ought to result from the rashness of any man," and that, " in proportion as they themselves afford a spectacle of more retiring authority, so is there promised to them a higher mea- sure of the majesty of empire." We must not, however, finally take leave of Theodosius II. without reference to the Theodosian code in which the principle was formally laid down in more places than one — that causes ecclesiastical should be confined to ecclesiastical Courts. The following is one instance — " We sanction by a perpetual law, that no bishop, nor any one in the service of the Church, be drawn into the Courts of any judges ordinary or extraordinary so far as relates to ecclesiastical causes, which ought to be decided by episcopal authority." The Emperor Justinian, that acknowledged Nestor of jurisprudence, ecclesiastical and civil, who succeeded to the Imperial throne in 527, and swayed the sceptre at the second Council of Constantinople in 553, has left in his Novels most irrefragable testimony to our purpose — " If the offence be ecclesiastical, requiring ecclesiastical judgment and correction, let the most holy bishop give judgment — the most illustrious civil judges in no way interposing. For we will that such causes should be by no means entertained by secular authorities, according to the sacred and divine rules which our laws do not disdain to follow." And again — " But if the offence is ecclesiastical, then the trial and penalty proceed under the bishop alone, according to the canons, other judges having no connexion with causes of this character." r Edict. Theod. et Val. ap. Cone. Eph. Labb. et Coss. t. 3, p. 1241. Cod. Theod. 1. xvi. t. xii. de Ep. Jud. 1. 3. Cod. Theod. 1. xvi. t. ii. de Episc. Leg. xxiii. et t. xi. de Bel. Leg. 1. Eose, Bio- graph. Diet, in loco. Imp. Just. Novel. Const. No. 83, Ed. H. Steph. 1558. Imp. Just. Novel. Const. No. 77, Lugd. 1561. 114 Hose, Bio- graph. Diet, in loco. Alloc. Basil, ad viii. Svn. ac. x. Ecclesiastical Principles contravened [Ch. IX. The Emperor Basilius, who established his sole Imperial sway in 867, and illustrated his reign by a new digest of the Code of Juris- prudence, which had not been revised since the time of Justinian, in no way receded from the principles of his predecessor before re- counted. In the second year of Basilius' reign the Council of Constantinople was con- vened (falsely called the eighth (Ecumenical Council) against the heresy of the Monothe- lites, and to that assembly he addressed the following words, plainly indicating that eccle- siastical judgments were still confined to ecclesiastical persons : — " I say it is not permitted to any layman whatsoever to move questions on ecclesiastical subjects, or to stand against the whole Church or an (Ecumenical Synod. For to search out these things belongs to patriarchs, and priests, and teachers, to whom the office of ruling is assigned, to whom the power to consecrate, to loose and to bind, is given, who have the keys of the Church and of heaven; for the layman, although he is full of all reverence and wisdom, is yet a layman and a sheep, and not a shepherd." The foregoing contains considerable evi- dence, though it is by no means an exhaustive list of the testimonies, from the mouths and acts of Emperors, which might be produced to prove the point before us. As before said, no account whatever has been taken of Synods, Canons, Patriarchs, Metropolitans, Bishops, lesser Clergy, or, indeed, of any ecclesiastical testimony whatsoever. Had this course been pursued, example and autho- rity might have been multiplied to a vast ex- tent. But I have consistently restrained all the most learned canonists. Sec. 3.] by Court of Final Appeal. the evidence produced within the region of the Imperial purple, in the faint hope that such testimony may have some weight, as it ought to have, with those who cherish over- expansive notions of the extent of regal authority, and, at least as it appears to me, sometimes invoke a blow of the sceptre to demolish the fairest arguments and to disable even the most sacred rights. _ . . . , It is on the above account that 3. A principle affirmedby 0 ne hopes to be forgiven by some readers, at least, for having some- what pertinaciously insisted on Im- perial testimony, which shall now be fortified by the words of two of the most learned canonists which the world has produced. Van Espen thus writes : — " Without doubt the examination and decision of matters of faith was confided by God to the Church and her ministers, but not to lay authorities Nor did Christian princes ever assume this authority to themselves, but invariably acknowledged .... bishops and pastors of the Church as judges of doctrine." Again, the learned Belgian Jurisconsult thus writes to the same effect : — " It is one thing for a prince to exert his authority in the pro- mulgation and execution of a new law throughout his provinces ; it is a very different thing to undertake to judge of articles and dogmas of faith, or to define what is to be held or not to be held as ' de fide.' " De Marca, speaking of Imperial proceed- ings with reference to ecclesiastical juris- diction, thus confirms the testimony of his brother canonist : — " The Roman Emperors certainly exercised high authority in eccle- siastical affairs and judgments ; but I do not believe that any T 2 115 De promulg. Leg. Eccl. t. iv. fol. 164, Lovan. 1753. Ibid. 116 Ecclesiastical Principles contravened [Ch. IX. De Concord. Sac. et Imp. Bm. iii.fol.200. toamb. 1788. Rose, Bio- graph Diet, in loc. Is. Casaub. do Libert. Ecc. Cott. Lib. Vesp. D. 18, fol. 114 Coll. Eccl. H. vL 246. example can be adduced of a canonical judgment pronounced by one bishop from whom an appeal was carried directly to the prince. They invoked ecclesiastical judges, yet never did they themselves take cognizance of subject-matter which was canonical, but only of the regularity of judgments." To this evidence may be added that of Isaac Casaubon, whose name has almost passed into a proverb for learning, and who, though born at Geneva, may in some sort, at least from the place of his residence, death, and burial, be claimed as a countryman of our own. He thus writes : — " Appeals are made to them, i. e. the bishops, who assembled in a synod, and are the lawful judges of divine affairs, as to those to whom the cognizance of such controversies belongs. But the prince is appealed to, not that he should pronounce sentence concerning divine matters, but that he should command it to be duly and orderly pro- nounced." This whole subject is so tersely summed up in a speech delivered by Scott, Bishop of Chester, before the House of Lords, in the reign of Queen Elizabeth, on the subject of the Uniformity Bill of that reign, that a part of his Lordship's address shall be here tran- scribed. And one is the more inclined to refer to that prelate's words, as in some sense they pretty closely apply to the subject of our whole inquiry. " Your Lordships," said that bishop, "may please to remember the great danger you draw upon yourselves by undertaking to judge in the cause, especially if you should happen to make a wrong decision ; for then, besides the misfortune of your own persons, you will prove the unhappy occasion of misleading Sec. 4.] by Court of Final Appeal. 117 others. King Jeroboam has this mark set upon him as an aggravation of his misbe- haviour, that, besides his personal miscar- riage, he made Israel to sin. My Lords, I entreat you would be very careful to prevent the application of this text Those who are well read in ecclesiastical history, and acquainted with the methods of the Church in debating religious controversy, can easily inform your Lordships that these mat- ters have been all along decided by the clergy, and not by the laity. The Arian heresy, in the reign of Constantine the Great, was can- vassed and condemned in the Council of Nice. The heresy of Macedonius in the first Council of Constantinople, in the time of Theodosius the Great. The heresy of Nestorius in that of Ephesus, in the reign of Theodosius the Younger. The heresy of Eutyches in the Council of Chalcedon, under Martin [Marcian is meant]. But here we are to observe that none of these religious Emperors ever con- vened their temporal nobility or commons to advise or determine in these causes." Now if any persistent reader should have been endued with sufficient pa- tience to struggle through the foregoing dry details, he will see good reason for reserving his assent to the hypothesis which denies that the present Court of Final Appeal con- travenes great principles ecclesiastical. At any rate, thus much may be said without any 4. A dilemma. 118 Ecclesiastical Principles contravened, fyc. Preface, p. vii fear of contradiction — if the hypothesis sug- gested in the preface to " Eccl. Judgments" " that no great principle ecclesiastical is con- travened by the present Court," is true, then the Emperors above quoted, — and some of them have hitherto been accounted the greatest authorities in civilized jurisprudence, — as well as the canonists who have followed in their track, must all have sadly missed their way, and, having been involved in one common error, must have handed down to posterity, by their acts, words, and writings, a concurrent testimony to ecclesiastical prin- ciples which is utterly false. Constitutional Principles contravened. 119 CHAPTER X. THE COURT CONTRAVENES GREAT PRINCIPLES " POLITICAL." 1. Surprising announcement touching an original prerogative of the Crown. — 2. Civil Power restrained from Spiritual Judgments before the Conquest. — 3. Civil Power restrained from Spiritual Judgments from Conquest to reign of King John. — 4. Civil Power restrained from Spiritual Judgments from reign of King J ohn to reign of King Henry VIII.— 5. Distinction between Spiritual and Civil authority recognized in the reign of King Henry VIII. ; in the reign of King Edward VI. ; in the reign of Queen Elizabeth ; in the reign of King James I. j in the reign of King Charles I. ; in the reign of King William and Queen Mary. — 6. Coronation Oath. — 7. Distinction between Spiritual and Civil authority re- cognized by Law Courts. — 8. Recognized by Text Writers. 1. Surprising THE last hypothesis tO be COIl- announcement . , , "I l' '~ j 1 " T» touching an sidered as suggested by the Pre- rogative o^'he f ace to the volume lately published Crown. under high authority is, " that the Court contravenes no great principle political." By "political" here, " constitutional" is doubt- less meant ; and in that aspect the principle shall be viewed. Now considerable light is thrown on the fall meaning and intention of this hypothesis by a sentence which occurs in another part of that volume to which this Preface serves to introduce the reader. We are there in- formed that, " the claim to hear final appeals Eccl. Judg- ments, Pref. p. Ibid. Intro- duc. lxiv. Constitutional Principles contravened [Ch. X. in matters ecclesiastical being pre-eminently one of the original prerogatives of the Crown, is, as such, naturally exercised by the "King in Council/' Xow of course if this assertion as to "an original prerogative " was warranted by fact or supported by any authoritative docu- ments of the realm, the present Court, being an offset of the Privy Council, might be truly said to contravene no great constitutional principle. But if upon investigation the above-quoted assertion should be found not only to have no foundation whatsoever, either in history, law, or fact, but, on the other hand, to be absolutely contradictory to them all, then quite another conclusion must be drawn. Had this assertion, " that it was one of the original prerogatives of the Crown to hear final appeals in matters ecclesiastical," slipped from the pen of a divine whose studies might have been supposed never to have lain in this direction, one would even then have been somewhat astonished at so strange an announcement. But considering that the volume which has vouched this as the truth had the great advantage of assist- ance (as appears patent upon the title-page and Advertisement) contributed by gentle- men of the learned profession, one is posi- tively amazed. It is really difficult to believe one's own eyesight. For the world has been invited to accept, under all the high authority by which the book is distinguished, this Sec. 1.] by Court of Final Appeal. 121 assertion concerning " an original prerogative of the Crown" which not only has no imaginable foundation whatsoever, except it may be in a desire that it was true on the part of its authors, but is absolutely and positively contradicted by public records scat- tered abundantly over all periods of our na- tional history. From the earliest dawn of a civilized jurisprudence in this land down to comparatively recent times, decrees of great councils, Eoyal charters, oaths of Sovereigns, constitutions, and Acts of Parliament, com- bine with one concurrent and ever recurring testimony to assure us not only that it was no " original prerogative of the Crown " to hear ecclesiastical causes, either in first instance or final resort, but that the Crown was directly and distinctly restrained from any such in- terference, and that, in accordance with all previous precedent in all Christian States, ecclesiastical causes were to be left here to ecclesiastical judges. That no doubt what- ever may be left lurking in any one's mind on this point, some testimony shall now be produced. And as it has been asserted in the volume before us to be an " original prerogative " of the English Crown to hear final ecclesiastical appeals, care shall be taken to go back sufficiently far into our country's annals lest any suspicion should remain, gen- dered by the high authority now questioned, that this was a prerogative which as being " an 122 Constitutional Principles contravened [Ch. X. Spel. Cone. i. 194. Kennett'sEccl. Syn. pp. 212, 213. Spelm. Cone, i. 242. Cone. M. B. i. 205. original " one could boast of a date anterior to the adverse evidence now to be put in. 2. civil power We will go therefore to the very frouTspfrituai r0 °t °f the- matter, and inspect lefbrethe 8 the earliest legal records of our Conquest. country. For this purpose it is impossible to get much farther back than the mixed Council of Brasted, held near Sevenoaks in Kent by King Withred, in the year 696. In that, among the first of our recorded as- semblies, was laid down the footstone which supported all subsequent policy both as re- garded the enactment as well as the execution of ecclesiastical laws. And the very first clause in the acts of that mixed Council is — "Let the Church be free, and maintain her own judgments." It would be tedious and beyond the present purpose to show in detail how consistently this principle was adhered to in those earlier times, as for instance at the mixed Council of Cliff at Hoo, Kent, in 747, under Ethel- bald, and at the Wittenagemote of Grately by Andover, under Athelstan, in 928. But as we pass on to later ages of the Saxon period it may be observed that the principle was still maintained by the laws of King Edgar. Then the bishops, and sheriffs or aldermen, presided in the County Courts, the first for the decision of spiritual, the latter for the decision of civil suits, and the principle that spiritual questions should be restrained within the jurisdiction of the spiritual judge was Sec. 2, 3.] by Court of Final Appeal. distinctly expressed in the laws of that King, as follows : — " At the most august assembly let the bishop and the alderman be present, of whom let the one interpret to the people the law of God, the other the laws of man." The words of that same King to the as- sembled ecclesiastics in the year 969 enforce the same distinction between spiritual and civil authority. These were his words to Archbishop Dunstan and his suffragans : — " I wield the sword of Constantine, you that of Peter." And now to pass from Saxon to Norman times. We find this prin- ciple, that spiritual causes should be confined to spiritual judges, en- forced with no less precision and vigour. In the charter of King William I., a.d. 1085, the following words occur : — " Nor should any cause which pertains to the soul's health be brought before laymen. But if any man be impleaded in any cause, or for any offence under the laws of the Church, let him come to the place which the bishop shall have chosen and appointed, and there let him plead in the cause or to the offence. . . . But this I forbid, and by my authority disallow, that any viscount, or magistrate, or minister of the king, or indeed any layman, should interfere with the laws which belong to the bishop." To pass onwards, we come to the time of Stephen, who swore solemnly — "That ecclesiastical persons should be subject only to episcopal jurisdiction." Subsequently, in the reign of King Henry II., the code known as the "Constitutions of Clarendon " was ratified, in 1164. And the reader must forgive a repetition of what has been said before, as the evidence of this 3. Civil power restrained from spiritual judgments from Conquest to reign of King John. 123 Leges. Edg. c. v. Cone. M. B. i. 246. Spelm. Cod. 310. Sup. pp. 11—13. 46, 47. 12-4 Const. Clar. Matt. Par. ad arm. 1164. Labb. et Coss. ii. 1431. Cone. M. B. i. 435. Sup. p. 12. Coll. Eccl. Hist. ii. pp. 274—6, and sup. pp. 46, 47. Comm. iii. 66, Judg. Ct. Excheq. July 8, 1850. Constitutional Principles contravened [Ch. X. code must now be put in in its chronological order, as we follow the stream of our con- stitutional history. By the Constitutions of Clarendon ecclesiastical appeals were specially dealt with, and indeed the whole gradation was then distinctly laid down thus : — " From the archdeacon process must be had to the bishop ; from the bishop to the archbishop ; and if the archbishop should be slack in doing justice, recourse must be had to the King, by whose order the controversy is to be settled in the Archbishop's Court, in such sort that no further process can be had without the Royal assent;" i. e. the parties could not appeal to Rome. And here it is remarkable, in case the arch- bishop failed to do justice in the first instance, and recourse was had to the Crown, that still the controversy was to be decided in the Arch- bishop's Court, and not elsewhere. It was not, as before said, to be taken out of the judgment of the Church ; the decision in the case was to be a spiritual one, and the proceedings governed by the methods of the Court Chris- tian. And now to explain how the learned Barons of the Exchequer on this point, in de- livering a judgment on the subject of eccle- siastical appeals, fell into their deplorable complication of error on July 8, 1850. They missed their way sadly from the path of consti- tutional law by taking Blackstone's mutilated extract from this Constitution instead of con- sulting a genuine copy. For they ruled that it was " settled .... by the Constitutions of Clarendon in the reign of Henry II., anno Domini 1164," that appeals in causes eccle- Sec. 4.] by Court of Final Appeal. 125 siastical were given to the King, and no farther ; than which nothing can be wider of the truth, as the Constitution itself declares on the face of the record. Investigating in chronological order the foundations of constitutional history, we now strike upon Magna Charta, and there we dis- cover the groundwork of English liberty — the basis of our national rights. And what are the very first words of that time-honoured document ? Magna Charta, in effect repeating the prime enactment of the Mixed Council of Brasted, thus begins : — " Let the Church be free, and hold her rights and liberties invio- late." 4. Civil power And that the Church might not from^pirituai be left to rely solely on that great STeSof national groundwork of her liber- King John to tj eg jt s contents were continually reign of King J Henry viii. confirmed in subsequent genera- tions. For, to speak within the mark, we find confirmations of this charter nationally ratified twice in the reign of King Henry III., twice in the reign of King Edward I., thrice in the reign of King Edward III., eight times in the reign of King Richard II., six times in the reign of King Henry IV., and once in the reign of King Henry V. These outworks, however, do not exhaust the aid ^further given to the Church's cause by the Answers in Parliament to the " Articuli Cleri " made at Lincoln, 9 Ed. II., a.d. 1315, and at Mag. Car. ad. init. 9 Hen. III. c. 1. a.d. 1225. 37 Hen. III. a.d. 1253. 25 Ed. I. c. 1. 28 Ed. I. a.d. 1300. 14 Ed.III.c.l. 25 Ed.III.c.l. 50 Ed.III.c.l. 1 Rich.II.c.l. 2 Rich. II. c.l. 3 Rich.II.c.l. 5 Rich. II. c.l. 6 Rich. II. c. 1. 7 Rich. II. c.l. 8 Rich. II. c. 1. 12 Rich.II.c.l. 1, 2, 4, 7, 9, and 13 Hen. IV. c. 1. 3 Hen. V. c. 1. 126 2 Inst. 599. 9 Ed. II. c. 13. Coll. Eccl. Hist. iii. 45. Eccl. Judg. passim. Sup. pp. 58 — 62. 25 Hen. VIII. 19. Constitutional Principles contravened [Ch. X. Westminster, 14 Ed. III., a.d. 1340. The 13th chapter of the former statute, " Articiili Cleri," described by Lord Coke not merely as an enactment, but as declaratory of the common lawand custom of the realm, runs as follows : — "Also it is desired that spiritual persons whom our lord the King doth present unto benefices in the Church, if the bishop will not admit them (either for lack of learning or for other reasonable cause), may not be under the examination of lay persons, but that they may sue to an ecclesiastical judge, to whom it of right belongs, for the obtaining of such a remedy as may be just." And the answer is — " Of the fitness of a person presented to a benefice, the examina- tion belongs to the spiritual judge. So it hath been heretofore used, and shall be so in future." And now to pass on to the reign of King Henry VIII. , whose ex- ample has been lately invoked, and whose practice has been somewhat ostentatiously paraded in order to justify Royal interference in spiritual ques- tions. It is indeed pretty clear that the true intention of that monarch's proceedings has been considerably overstated in this respect under the sanction of very high modern autho- rity. For it has been shown above, that when ecclesiastical causes were statutably carried on final appeal to the Crown in his reign, the real intention was that they should be referred to three or four bishops, or, if they were weighty matters, to a provincial synod, for ul- timate adjudication. And one is very strongly confirmed in the belief that the general inten- tion of that age was to restrain spiritual de- 5. Distinction between spiri- tual and civil authority re- cognized in the reign of King Henry VIII. Sec. 5.] by Court of Final Appeal. cisions to spiritual authority, not only by the evidence of the public records of our country, but by the personal declarations of that monarch himself. In the forefront of the national records of this period stands the noble preamble of the Statute of Appeals, a.d. 1533, which pretty plainly declares upon its face the legislative intentions of the times. Speaking of this realm of England, it recites as follows : — " The body spiritual whereof having power when any cause of the law divine happened to come in question, or of spiritual learning, then it was declared, interpreted, and showed by that part of the said body politic called the spiritualty, now being usually called the English Church, which always hath been reputed, and also found of that sort that both for knowledge, integrity, and sufficiency of num- ber, it hath been always thought, and is also at this hour sufficient and meet of itself, without the intermeddling of any exterior person or persons, to declare and determine all such doubts, and to adminis- ter all such offices and duties as to their rooms spiritual doth appertain." In the following year, 1534, the statute known as "The Clergy Submission Act" was passed, giving final appeals in causes ecclesias- tical which did not " touch the King" to the Crown in Chancery, and in fact establishing the Court of Delegates. But, as was above de- tailed at length, under the provision of that very statute a commission was appointed to re- vise the ecclesiastical laws, and its recommen- dation in the " Reformatio Legum " was, that when an ecclesiastical cause was referred to the Crown it should be decided by spiritual, not by lay authority. This testimony to our present purpose is here repeated, as it properly comes here as evidence in chronological order : 127 24 Hen. VIII. 12. Ibid, preamb. 25 Hen. VIII. 19. Sup. pp. 58 seq. 128 Ref. Log. Tit. Appel. cap. xi. 26 Hen. VIII. 1. Froude's Hist. Eng. ii. 326. Cone. M. B. iii. 764. Constitutional Principles contravened [Ch. X. " And when the cause shall have heen referred " (to the Crown), " we desire to conclude it by a provincial synod, if it is an important case, or by three or four bishops to be appointed " (by the Crown) " for that purpose." Though, as must be confessed, King Henry VIII. was a most rapacious grasper of rights and privileges no way rightfully be- longing to him, yet when the title of " Su- preme Head " of the Church was statutably conferred on him, in the next session of Par- liament, this over-capacious expression was by no means interpreted, even by himself (and no one can deny that he well knew how to make the best of the servile concessions of his contemptible courtiers and Parliaments), to confer authority on the Crown to give final judgment by lay authority in matters of faith. That title is explained in a much less offen- sive sense by a paper lately discovered by Mr. Froude in the Rolls' House MSS., the words of which run thus. The King does not — " Pretend thereby to take away any power from the successors of the Apostles that was given to them by God." . . . Nor did " the King's Grace, his nobles, or subjects, intend to decline or vary from the congregation of Christ's Church in any thing concerning the Articles of the national faith." And again, when King Henry VIII. was interrogated by the clergy of the province of York what was meant by the title " Supreme Head," he replied : — " As to spiritual things . . . forasmuch as they be no worldly or temporal things, they have no worldly nor temporal head, but only Christ that did institute them, by whose ordinances they be minis- tered here by mortal men, elect, chosen, and ordained as God hath willed for that purpose, who be the clergy." Sec. 5.] by Court of Final Appeal. Nor did His Majesty's "letter of business," dated July 6, 1540, on the subject of Anne of Cleves' divorce, directed to the National Synod convened at St. Paul's, London, April 14, 1540, and afterwards prorogued to Westminster, breathe any different spirit. In the body of that instrument the following passage occurs : — " We, who are wont to abide by your judgment in all other weightier matters concerning this Church of England which affect ecclesiastical government and religion . . . have thought it meet . . . that explanation and communication should be made to you ... so that we may lawfully venture under the authority of our whole Church ... to do and effect that . . . which you may decree to be lawful according to the laws of God." Indeed, notwithstanding all that has been lately asserted on this subject to the contrary, it is very plain to any body who will pay reasonable attention to the records of history, that even in this reign questions of the law Divine were acknowledged to belong to the spiritualty. For though unquestionably Acts of Parliament frequently then dealt with spiritual matters, yet it is quite evident, to those who take the most ordinary trouble to investigate dates, that such matters were first settled in the provincial synods or Convoca- tions, and subsequently ratified by the tem- poral authority or by the civil Legislature. As one instance of the truth of this asser- tion,may be cited " The Ten Articles, a.d. 1536," which when sent down into the north of Eng- land were accompanied by the original draft under the hands of the members of Convoca- 129 Cone. M. B. iii. 846. Ibid. 851. Burnet's Hist. Ref. ad. an. 1540, Records in loc. Eccl. Judg. Introduc. pp. xxxii. et seq. Strype's Mem. Cranin. p. 40. 130 Constitutional Principles contravened [Ch. X. Strvpe's Mem. Craniu. pp. 40, 41. 31 Hen. VIII. 14. Introduc. pp. xxxii et seq. Hume, c. xxxU. Cone. M. B. iii. 845. Ibid. 845, 846. tion, signed by 116 bishops, abbots, priors, archdeacons, and proctors of the clergy. And the greatest care was taken that the people might not suppose that these docu- ments rested on Royal or civil authority, the Duke of Norfolk, as the King's lieutenant, having received orders to take order that the clergy and others " might understand it was a proper act of the Church, and no innovation of the King and a few of his counsellors." Another instance may be found in " Tlie Six Articles, a.d. 1539," which were incorpo- rated into an Act of Parliament. It is no part of my present purpose to set up any defence either for that statute or for its con- tents, it is merely invoked here as an ex- ample, to show that spiritual questions were at this period of our history first submitted to the spiritualty, before they were concluded by the temporal power, and to test the truth of the very remarkable assertions on this point preferred for acceptance in the recent volume, " Ecclesiastical Judgments," Sfc. In the case of this statute, which has been popu- larly denominated the "bloody bill," or " whip with six strings," the spiritual ele- ments were formally submitted to the Can- terbury Convocation by Parliament. Specific questions having been handed by Thomas Cromwell into the hands of the prolocutor, were debated and particularly answered by the synod before the statute was enacted. Sec. 5.] by Court of Final Appeal. And to set all doubt at rest in this mat- ter, the authority of the spiritualty and of the Convocation for the doctrinal contents is twice asserted in the preamble of the statute itself. The real truth is, that the most serious mis- apprehensions have arisen in the minds of some of our modern writers from the fact of giving exclusive attention to Acts of Parlia- ment in investigating the history of this period, while the acts of our synods have been entirely overlooked. The "Statute Book" has, in many instances, alone been studied, to the entire ex- clusion of our ecclesiastical records and the " Concilia Magnce Britannia? " And conse- quently, those who have maintained the truth, in asserting that the general practice of this age was to restrain doctrinal questions to spiri- tual authority, have lately had a tolerably broad imputation charged upon them of favouring a " preconceived theory," for which no support can be found in "the practical tendency of the legislation of the later years of King Henry VIII." It would take far too much space to pursue this subject here into all its details, but at any rate, in some measure to take the edge off the very slenderly supported imputation above mentioned, it shall suffice here to assert with considerable confidence that " The Articles of 1536," — " The Institution of a Christian Man" a.d. 1537, — " Tlie Six Articles," a.d. 1539 — " The New and Expurgated Edition of K 2 " 131 31 Hen. VIII. 14 Preamb. Eccl. Judg- ments, Intro- duc. xxxi, ii. v. Cone. M. iii. 817. Ibid. 830. 1!. Ibid. 815, 816. Ibid. 862. 132 Constitutional Principles contravened [Ch. X. Cone. M.B. iii. 868. Att. Rights, p. 193. Eocl. Judg. Introduc. xsxii. Apol. pp. 115 — 133. and Recapit. Apol. p. 153. Ch. Hist. B. v. p. 18S. the Sarum Use" a.d. 1542, X. S., — " Tlie neces- sary Doctrine and Erudition of any Christian Man," a.d. 1543, and " The English reformed Litany," a.d. 1544, all had prime original synodical sanction. It must also be added, that the above recorded instruments go a long way towards absorbing the list of authorita- tive documents in spiritual matters published during " the later years of King Henry VIII." And so those who have maintained that at this period spiritual decisions were restrained within spiritual authority, are not without considerable warrant for what they have affirmed ; nor can they be fairly taunted with having promulgated a " preconceived theory," in the sense lately charged upon them. Though in another sense it certainly is a "preconceived" one, as having been held very long ago, both by Jewel and Fuller, two worthies not over favourable to ecclesiastical authority. Of these the latter thus writes to our purpose, " Upon serious consideration, it will appear that there was nothing done in the reformation of religion save what was acted by the clergy in their Convocations, or grounded upon some act of theirs precedent to it, with the advice, counsel, and consent of the bishops and most eminent Churchmen, confirmed on the post-fact, and not otherwise, by the civil sanction, according to the usage of the best and happiest times of Christianity." Indeed, to go a step further, it is tolerably Sec. 5.] by Court of Final Appeal. 133 clear that the practice in this reign of submit- ting spiritual questions to the judgment of the spiritualty was not straitly confined to those cases which in this generation we denominate as of pure spiritual cognizance, but was fre- quently extended to those which only touched on ecclesiastical jurisdiction. As examples may be cited, the nullification of Catharine of Arragon's marriage, which was wholly the act of the Convocations ; the divorce of Anne Boleyn, which was sanctioned by the same authority ; and the nullification of Ann of Cleves' marriage, which was entirely decided by the same tribunal. Indeed the latter case affords a most imposing instance of the judicial functions then exercised by the spiritualty. One really must believe with all the fore- going evidence before us, that at the period under consideration, a question of faith or doctrine would not have been submitted to lay adjudication either in the enactment or administration of law. And a very strong suspicion exists in many minds, that a con- tradictory theory lately published under high authority is flatly contradicted by the hard facts of history. in the reign of It would lead us too far out of Kmg Ed. vi. £j ie jfpgct, track, our present in- quiry referring more specially to the execu- tion than to the enactment of ecclesiastical law, to enter into the detail of the national pro- ceedings in King Edward VI. 's reign as they Cone. M. B. iii. 756, 7, 9. Ibid. 803, 804. Ibid. 851—4. Eccl. Judg- ments, Pref. and Introduc. 134 Cone. M. B. iv. 16. Strype's Cranm. pp. 155, 156. 2 & 3 Edw. VI. 21. 5 & 6 Edw. VI. 12. Cone. M. B. iv. 15—35. Coll. Eccl. Hist. v. 342 ; vi. 277. Att. Rights, pp. 199-202. 35th Art. of 1553, N. S. Card. i. 18. Wake's Pres. State, 599. Coll. Ch. Hist. v. 476. Heyl. Hist. Iter". 121. Coll. v. 216. Sparrow's Rationale, App. 149. Strype's Mem. 157. Constitutional Principles contravened [Ch. X. affected the Churcli. But it is at least proper to mention in passing, that during that period spiritual questions were restrained to the spiritualty. And this is none the less neces- sary on account of the unwarrantable asser- tions which have been made of late in this particular. The authority " to administer the Communion in both Kmds" a.d. 1547, — Tlie abrogation of the Celibacy of the Clergy, a.d. 1547, — " The first reformed Prayer Boole " a.d. 1549, — " The second Reformed Prayer Book," a.d. 1552, and " The Articles of 1553," N. S., as indeed appears by their title, all these had direct synodical sanction. And the foregoing exhaust the list of the most im- portant authoritative national instruments affecting spiritual matters promulged during King Edward VI.'s time. It is, moreover, a matter well worthy of attention, but one which has been most strangely overlooked, that the two Com- missions which severally prepared " The Re- formed Communion Office" and " The first Reformed Prayer Booh," in this reign, con- sisted wholly, and without one exception, of Convocation-men. That both were composed solely of members of the Upper and Lower Houses of the Canterbury Synod, is indeed clear beyond doubt from the records of their names and offices. It is further observable that Cranmer, President of the Upper House, and Taylor, Prolocutor of the Lower, sat on Sec. 5.] by Court of Final Appeal. both commissions, which were not, however, identical as regarded all the other members, in the reign of To pass over the next succession, Queen Eiiz. f rom which a t least no evidence can be produced against the position now main- tained, and any evidence produced in favour of it would now probably be somewhat gene- rally disallowed, we come to the time of Queen Elizabeth. After the tyrannical oppressions under which the English Church groaned in the time of Queen Mary, the reintroduction of our Prayer Book, with some few alterations, at the beginning of the reign of Queen Elizabeth, was sanctioned by statute, the debates on the subject taking place in the two Houses of Parliament in April and May, 1559. Now, as sundry alterations made in that book at this time are set out in the Act, it has been supposed by some persons that the changes were effected on this occasion in our Liturgy solely by parliamentary and not by ecclesias- tical authority ; and the fact that the Convo- cation Registers were burnt in the disastrous fire of London in 1666, has rendered any satisfactory investigation of this subject ex- tremely difficult. There is, however, a docu- ment existing in the State Paper Office which I have been so fortunate as to discover, assign- ing a proper synodical sanction to the litur- gical changes then made. That document, if genuine and authentic, tends so directly to 135 1 Eliz. 2. Sec. 3. 136 Constitutional Principles contravened [Ch. X. State Paper Office MSS. No. 46, Vol. 7, Dornest. Eliz. 1559. corroborate the position now maintained, that it shall be transcribed. It first sets out the names of the bishops in the first year of Queen Elizabeth's reign, and then proceeds in the terms following : — ■ "The Book of Common Prayer, published primo Eli/.*, was first resolved and established in the time of King Edward VI. It was re-examined, with some small alterations by the Convocation, consisting of the same bishops and the rest of the clergy, in primo Eliz ffi , which being done by the Convocation, and published under the Great Seal of England, there was an Act of Parliament for the same book, which is ordinarily printed in the beginning of the book. Not that the book was ever subjected to the censure of the Parlia- ment, but being agreed upon and published as aforesaid, a law was made by the Parliament for the inflicting of a penalty upon all such as should refuse to use and observe the same. Further authority thereto is not in the Parliament, neither hath been in former times yielded to the Parliament in things of that nature, but the judgment and determination thereof hath ever been in the Church thereto authorized by the King, which is that which is yielded to Henry VIII. in the statute of 25 his reigne." This State Paper is in the handwriting of Sir Thomas Wilson, the first Keeper of the State Paper Office, established by King James I. in 1608, and the date of the document may therefore thus be approximately assigned. Having first detailed the names of the Bishops who, from banishment, returned to England on the death of Queen Mary and the accession of Queen Elizabeth, and having also referred to the first establishment of the Book of Common Prayer in the time of King Edward VI., this Paper proceeds to affirm " that it was re-examined with some small alterations by the Convocation, consisting Sec. 5.] hy Court of Final Appeal. 137 of the same Bishops and the rest of the Clergy, in primo Elizabethan. " Upon this evi- dence therefore it appears, while it is admitted that the Elizabethan Prayer Book was not submitted to that Convocation which met Jan. 24, 1559, concurrently with Queen Eliza- beth's first Parliament, yet that the Book was authorized by a Synod or Convocation of English Bishops — unjustly and uncanonically deprived in the last succession, but now re- stored to their rightful authority — and of the rest of the Clergy. It is moreover to be ob- served, that this conclusion is strongly sup- ported by the contents of the preamble to the present Act of Uniformity, where the Elizabethan Prayer Book is distinctly said to have been "compiled by the Rev. Bishops and Clergy." In any case, this State Paper, considering the methods of reasoning employed, is avail- able as very considerable evidence that, at the date which may approximately be assigned to it, principles identical with those now contended for were adopted in high quarters. For here we find spiritual decisions re- strained to spiritual authority. And it is further worthy of remark, that at this period the offensive title of " Supreme Head" of the Church, which had been grasped by King Henry VIII., was abandoned. For when the Supremacy Act, repealed in the reign of Queen Mary, was partially revived in the Cone. M.B. iv. 179. Strype's Aim. i. 56. 13 & 14 Car. II. 4. 26 Hen. VIII. 1. 138 1 Eliz. 1. 19. Eliz. Inj. Coll. 83. Cone. M. iv. 188. Spar. B. Constitutional Principles contravened [Ch. X. reign of Queen Elizabeth, though not wholly (as some gentlemen of the learned profession would have us believe), yet, certainly, in some considerable measure of its intention, the much less surprising title of " Supreme Governor" was substituted for that of " Su- preme Head." And even lest that less ob- jectionable term should appear to challenge defining authority for the Crown in matters spiritual, Her Majesty thought fit by her Royal Injunctions to disclaim such power in the words following : — " Certainly Her Majesty neither doth nor ever will challenge any authority than that was challenged and lately used by the noble Kings of famous memory, King Henry VIII. and King Edward VI., which is and was of ancient time due to the Imperial Crown of this realm, that is, under God to have the sovereignty and rule over all manner of persons born within these her realms, dominions, and coun- tries, of what estate, either ecclesiastical or temporal, soever they be, so as no other sovereign power shall or ought to have any superiority over them." And this Royal Injunction was statutably ratified by Eliz. 5, c. 1, sec. 14. So here again we find the civil power restrained to sovereignty over persons, to the exclusion of Roman assumption in this land, and confined to that measure of au- thority due of ancient time (and we have seen above what that was) to the Imperial Crown of this realm. And such measure of autho- rity most unquestionably never extended an- ciently to arbitration in questions of faith. Again, to glance at two most important matters in this reign. The Articles of 1563, Sec. 5.] hy Court of Final Appeal. 139 N.S., and those of 1571, had the fullest and most unquestionable authority of both our provincial synods. And here may be quoted the contents of those Articles themselves ; because, although, for reasons before specified, one would not in- troduce any ecclesiastical authority in proof of the points before us, yet it must be remembered that these Articles were ratified by Crown and Parliament, and so were stamped with the seal of Imperial authority. The 20th of those Articles runs thus : — " The Church hath power to decree rites and ceremonies, and authority in controversies of faith." And the 37th runs thus : — " Where we attribute to the Queen's Majesty the chief govern- ment, by which titles we understand the minds of some slanderous folk to be offended, we give not to our princes the ministering either of God's Word or of the Sacraments, the which thing the Injunctions also lately set forth by Elizabeth our Queen do most plainly testify, but that only prerogative which we see to have been given always to all godly princes in Holy Scripture by God Himself: that is, that they should rule all estates and degrees committed to their charge by God, whether they be ecclesiastical or temporal, and restrain with the civil sword the stubborn and evil-doers." And that Queen Elizabeth had a deep per- sonal consciousness of the impropriety and inconvenience of submitting spiritual ques- tions to lay authority, we may learn from a message sent by Her Majesty to the House of Commons on May 22, 1572, in these terms : — " Her Highness' pleasure is, that from henceforth no bills concern- ing religion shall be preferred or received into this House unless the same should be first considered of and liked by the Clergy." Cone. M. E. iv. 232. Card. Syn. i. 53, Tit. Bennett's Essay, p. 211. Sup. p. 107. 13 Eliz. 12. Art. of Reli- gion xx. Ibid, xxxvii. D'Ewes* Journal, p. 213. 140 Constitutional Principles contravened [Ch. X. D'Ewcs' Journal, p. 460. vii. 162, Lords, Coll. 163. Coll. vii. 163. Nor does Her Majesty's mind appear to have undergone any change on this subject subsequently, in 1593. In fact she some- what rose in her language, for when the customary request for liberty of speech was made by Sir E. Coke, then Speaker of the House of Commons, this answer in the Queen's name was returned by the Lord Keeper Puckering : — " Privilege of speech is granted, but you must know what privilege you have, not to speak every one what he listeth, but your privilege is 'Yea' or 'No.' Wherefore, Mr. Speaker, Her Majesty's pleasure is that if you perceive any idle heads which will meddle with reforming the Church and transforming the Commonwealth, and do exhibit any Bills to such purpose, that you receive them not until they be viewed and considered of those who, it is fitter should consider of such things, and can better judge of them." And when subsequently Queen Elizabeth had been advertised of some approaches in Par- liament towards matters ecclesiastical which were discordant with the tenor of these in- junctions, she sent for the Speaker himself into her presence, and among other items commanded him to deliver in substance the following message to the Commons : — " That the Lord Keeper had acquainted the Lower House that it was the Queen's pleasure they should not meddle with . . . causes ecclesiastical ; that she wondered any could be of so high command- ment," as she speaks, "to attempt a thing so expressly contrary to what she had forbidden, and that she was highly offended with this liberty." And lastly, she charged the Speaker to tell them that it was her " express command that no bill touching . . . reformation in causes ecclesiastical be exhibited." " And upon my allegiance," continued the Speaker to the House, " I am commanded, if any such bill be exhibited, not to read it." in the reign of To pass on in chronological order King James I. ^ ^ nexfc WQ ^ ^ Sec. 5.] by Court of Final Appeal. King James I. in his apology for the oath of allegiance, contributed his testimony to the ancient constitutional principle that the regal power should not interpose in matters of pure spiritual cognizance ; and his testimony is the more valuable as having been delivered in the times of high Royal prerogative. His Majesty's words are as follow : — " I never did, nor will presume to create any article of faith, or to be judge thereof, but to submit my exemplary obedience to them (i. e. the hierarchy), in as great humility as the meanest of the laud." And the principle here enunciated was most strictly adhered to in the enactment and promulgation of the canons of this reign in 1603-4, which had the sanction of our two provincial synods signified in the most exact and comprehensive manner imaginable. This monarch also manifested his extreme unwillingness to allow spiritual authority to be interfered with by civil authority, when he compelled all the judges to account before his council for their misbehaviour in impeding the business of Ecclesiastical Courts by prohibi- tions from the Common Law Courts, a subject treated of above, and to which therefore it is only necessary thus to allude chronologically in the course of the present argument. Before taking leave of King James L, it is worth while to quote a State Paper of his reign, which shows that, at any rate in some high quarter, there was then a great unwilling- ness either to claim or allow those extrava- 141 King James I. Apol. Oath Alleg. Cone. M. B. iv. 380. 428. Sup. pp. 40,41. 142 Constitutional Principles contravened [Ch. X. State Paper Office MSS. Domest. 1604, No. 45. gant assumptions of regal power "which have been of late so sedulously asserted. That paper, after setting out the King's duties in regard to ecclesiastical matters, proceeds — " As for tbe title of Head of the Church, which Stephen Gardiner and other Popish bishops gave first to King Henry VIII., meaning thereby supreme judge of faith and discipline, we utterly disavow it in that sense. And though a good construction might be made of the word when Saul is called (1 Sam. xv.) head of the tribes of Israel; and David (2 Sam. xxii.) head of tbe heathen; and Theo- dosius, by Chrysostome, head of all men, yet, because Supreme Head of the Church is a title in Scripture appropriated to Christ, and doth not belong to princes without many mitigations and cautions, we forbear it, and use a lesse offensive stile, Supreme Governor of his realmes, &c, thereby signifying the King's sovereign power to com- mand for truth, and undeniable right of bearing tbe sword, to execute justice upon all persons within these realms, in all causes, as well ecclesiastical as civil." in the reign of To take another step onward; the KingCbariesi. Rova i declaration prefixed to the " Thirty-nine Articles " in King Charles I.'s reign, and pledging subsequent Sovereigns of this realm by its continued presence, clearly restrains spiritual questions to spiritual arbi- tration. The words are as follow : — Pref. to Thirty- " If any difference arises about the external policy concerning the nine Articles. injunctions, canons, and other constitutions whatsoever thereto (i.e. the Church) belonging, the clergy in their Convocation is to order and settle them." In the reign of King Charles II. The principle that authority in matters of faith should be re- strained to the Spiritualty, was most dis- tinctly and emphatically proclaimed by the methods nationally adopted in the establish- ment of our present Book of Common Prayer in the reign of King Charles II. The prece- Sec. 5.] by Court of Final Appeal. dent of that time should be carefully remem- bered, and one hopes will be closely followed should any future like occasion arise. In 1661, a revision of the English Liturgy being thought desirable, the work was committed to the two Convocations of Canterbury and York. The Archbishop of York, the Bishops of Carlisle, Chester, and Durham, together with six proxies for the Lower House of York attended in London : and the Convo- cation of Canterbury, thus fortified, revised the Prayer Book itself, and the Calendar also by the aid of MSS., and the assistance of persons of mathematical eminence. When the whole work had been concluded, a copy of the Revised Book, engrossed with a precise specification of the volume as containing five hundred and forty-four pages of matter, was subscribed personally under the hands of the Archbishop of Canterbury, eighteen Bishops and eighty-four Presbyters of the Canterbury Synod. And that the Northern Province might waive no substantial right, a separate form of assent and consent was subscribed personally by the Archbishop of York, the Bishops of Durham and Carlisle, and by the six proxies formally deputed for the purpose by the York Synod. When this Book was afterwards offered to the Legislature in order that legal authority might be appended to it, " there was no change made in a tittle by the Parliament, so 143 Cone. M.B. 4, 567. Ibid. 568. Ibid. 569. Kennett's Regist. p. 566. Ibid. 574. Syn. Ang. ii., 93, 95. Cone M.B. iv. 566. Nicholl's Pref. x. xii. Burnet, Hist. Ord. Ch. Eng. p. 75. 144 Constitutional Principles contravened [Ch. X. Syn. Ang. II., 106. that they only enacted by a law what the Convocation had done." And, moreover, the Lord Chancellor in the name of the House of Lords thanked the Archbishops and Bishops of both Provinces, for the great attention they had given to the subject; and, further, his Lordship desired the Archbishop of Canterbury to convey to the Prolocutor and to the Clergy of the Lower House of Convocation, the thanks of the Upper House of Parliament, for the care and industry bestowed on the revision of the Book of Common Prayer. Thus, at the period of our history now under view, principles which seem at the present day to be in some quarters lightly esteemed, were nationally adhered to with considerable tenacity. in the reign of Nor do the changes consequent King i urn U p 0n Revolution of 1688 appear to have shaken the national determi- nation which had previously prevailed, of committing Spiritual questions to Spiritual authority ; but which has of late been chal- lenged in some quarters with surprising per- tinacity. At the beginning of the reign of King William III., when, if ever, one would have expected that the ancient land-marks of our constitutional Government in Church and State, might have been overlooked, the principle of submitting Spiritual questions to Spiritual arbitration was rigidly adhered to. Sec. 5.] by Court of Final Appeal. 145 For in 1689 when a scheme was set on foot for a revision of the Liturgy, in order to com- prehend persons dissenting from the Church, though the Dissenters wished that the mat- ter should be settled in Parliament, yet the House of Commons was of a very different opinion, and determined that the Convocation was the proper place for the consideration of Ecclesiastical affairs. Consequently the House of Lords joined with the House of Commons in an address couched in the following words to the Throne : — " We likewise pray that according to the ancient practice and usage of this Kingdom in time of Parliament, your Majesty will be graciously pleased to issue forth your writ as soon as conveniently may be, for calling a Convocation of the Clergy to be advised with in Ecclesiastical matters." In accordance with the prayer of this ad- dress of both Houses of the Legislature, the Convocation writs were issued; and to prepare the way for Synodical action, a Royal Com- mission was appointed of persons who were to consult together and make suggestions on matters connected with the external worship of the Church. And here it is to be observed that that Commission was composed wholly of Spiritual persons, without any admixture of laymen, a precedent which has not been followed on a like late occasion, exhibiting another instance of our modern disregard of ancient and venerable precedents. And though, in consequence of unacceptable sug- Kennett,Comp. Hist, iii., 589. Lathburv.Uist. Conv. p. 321. Kennett Hist. iii. Comp. , 5'JO. 146 Spelm. Cone, i. 194. Sup. p. 121. 1 Will, and Mary, c. 2. s. 36. Constitutional Principles contravened [Ch. X. gestions made by the Commissioners, this " Comprehension Scheme" came to nothing, having been most properly opposed by the Lower House of the Convocation of Canter- bury, yet the whole history of the proceed- ings contributes unanswerable evidence to the fact that at this time the great principle of submitting Spiritual questions to Spiritual arbitration was maintained inviolate by na- tional determination as expressed through the acts of the Houses of Lords and Commons, and of the Crown itself. In the " Bill of Rights " there is again set forth a virtual repetition of that memorable enactment, " Let the Church be free, and maintain her own judgments," which was at the very root of our constitutional history, established by the mixed Council of Brasted, and successively confirmed, as above shown, generation after generation. For the "Bill of Rights" reprobated the relegation of spiritual causes to a tribunal of civil origin in these unmistakable words : — " The Commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of a like nature, are illegal and pernicious." And lastly, this subject of legal enactments and constitutional en- gagements defining the relations which justly exist between the Church and the State, may be properly summed up by a reference to the Coronation Oath taken by every Sovereign 6. Coronation oath. Sec. 6, 7.] by Court of Final Appeal. 147 who under our present laws has ascended the throne of these realms. " Will you," in- quired the Archbishop on such august occa- sions, " preserve unto the Bishops and clergy of this realm ... all such rights and privi- leges as by law do or shall appertain unto them, or any of them ?" " All this I promise to do," has been the answer; and then, touching the holy Gospels, the Sovereign has added, " The things which I have here before promised, I will perform and keep, so help me God;" and then has kissed the book. And it must further be added, that " all con- stitutional transactions between the Crown and subject are both essentially and formally legal covenants, kings and people alike obey- ing the supremacy of the law;" and also, that " the oath is deposited in the Chancery, to be produced against the Sovereign should the compact be infringed." 7. Distinction But not only may it thus be S'andXii" snown from tlie P ublic records of authority re- this nation, such as Acts of Great cognized by law Courts. Councils, Royal Charters, Declara- tions of Sovereigns, Civil Constitutions, Acts of Parliament, and other constitutional in- struments, that the State has solemnly pledged itself, over and over again, to leave the Church's "judgments free," we may also learn from decisions of the Law Courts that this principle has been admitted as the basis of their judgments. l 2 1 Will, and Mary, c. 6. Blackst. Com. i. 235. Palgrave, Hist, of Norm, and Eng. p. 87. 148 5 Coke's Rep. 2 Boll. Rep. 439. 1 Bulst. 159. March. 92. 2 Lill. 386. Eccl. Judg- ments, p. 315. Constitutional Principles contravened [Ch. X. In Specot's case the Court of King's Bench ruled that — " It dotb not appertain to the King's Court to determine schisms and heresies " (hut if the original cause of the suit he matter whereof the King's Court hath cognizance, i. e. one involving rights of pro- perty), " then a schism or heresy ought to be alleged in certain, to the intent that the King's Court may consult with divines to know whether it be schism or not." The Common Law of England, in the matter of prohibitions, may be relied on as support- ing this principle before us. It is distinctly laid down that — " If the ecclesiastical or spiritual Courts proceed wholly on their own canons, they shall not be prohibited by the Common Law, for they shall he presumed to he the best judges of their own laws." And again — " When the ecclesiastical Court has the sole cognizance of a cause, their proceedings are not examinable at Common Law, though erro- neous, and no prohibition will lie." And again — " If a matter is properly determinable in the spiritual Courts, and they make an erroneous decree, the King's Bench will not grant a prohibition." And so completely does this principle ap- pear to have possessed the mind of one of the most upright of our Judges, that according to a report of Lord Raymond, Chief Justice Holt declared to him, on the occasion of an appeal to the House of Lords in such a case, " that if the Lords had been of opinion that the prohibition ought to have been granted, he never would have granted it." Eight out of the twelve Common Law Judges in Queen Anne's time, together with the At- Sec. 8.] by Court of Final Ajjpeal. torney and Solicitor-General, added the weight of their authority to enforce the principle that Spiritual questions should be decided by- Spiritual authority, when they gave the fol- lowing opinion on a case submitted to them by the Crown : — " We humbly lay before your Majesty, that all our law books that speak of this subject, niention(ing) a jurisdiction iu matter of heresy and condemnation of heretics as proper to be exercised in Convocation And none of them that we find making any doubt thereof." ■„ . , One cannot wonder that such 8. Kccogmzed by text and such like should be the judg- ments of the Courts and Judges when it is remembered that they are sup- ported by the accumulated authority of our most reliable text writers, some of whom shall now be produced as evidence. Bracton, in his most methodical and accu- rate treatise on English law, when speaking of the distinction between civil and eccle- siastical jurisdiction, says : — " Since there are these separate jurisdictions, separate judges, and separate causes, it behoves each one first to consider whether the matter lies within his own jurisdiction, lest he should seem to intrude his sickle into another's crop." And again, in the same sense, he writes : — " It does not belong to the King nor to the secular judge to enjoin penance, nor does it belong to them even to take cognizance of those questions which are connected with spiritual affairs." Sir Edward Coke thus delivers his opinion on this subject : — " Certain it is that this kingdom hath been best governed, and peace and quiet preserved, when both parties, that is, when the justices of the temporal Courts and the ecclesiastical judges have 149 Card. Syn. 2. 761, 762. Lib. v. c. 2, p. 401, Lond. 15G. Burder, Eccl. J ndgments, p. 214. Ibid. p. 222. Heath v. Burder, Eccl. Judgments, p. 222. Antiquity, or to recorded cases of the exer- cise of judicial authority by Ecclesiastical Courts in all ages of the Church. The late learned judge of the Arches, as indeed is the case with every body who has any competent knowledge on such matters, had no doubt himself at all on this subject. Indeed, he expressed his own mind upon it with un- mistakable clearness. He considered it to be the proper function of a Court wielding Ecclesiastical Jurisdiction, and having the words of the accused set out before it, in juxtaposition with the formularies said to be contradicted, to decide whether the latter had been contravened or not. And few people, one would think, will disagree with that learned judge, whatever the Judicial Committee of the Privy Council may have ruled in opposition to his view. Indeed it is very hard to believe that a single person of competent knowledge outside the precincts of Whitehall can come to any other conclusion than his. But this Court has laid down a novel and most surprising principle on this head, viz. — that it is insufficient to set out the words of the accused which are complained of ; but that " a specification of the unsound doctrine or heresy " said to have been maintained must be supplied. Not to dwell now on the surprising novelty of such a requirement, or on this manifest confession that the Court Sec. 4.] Methods of Proceeding unsatisfactory. 159 doubts of its own competency for unaided investigation, or on the evident endeavour to shift its own responsibilities to the shoulders of other people, it is quite clear that such a method invites a ready entrance, and opens a boundless field, for the most mischievous exercise of legal ingenuity and subtle misre- presentations. And a Court which in such matters adopts this method will most as- suredly find itself adjudicating upon any thing rather than the plain issue before it. Instead of trying the "ipsissima verba" of the ac- cused which is the offence charged, it will inevitably, on its own principles, vainly weary itself to distraction in trying the ingenuity of the advocates engaged, and in discovering the failure or success of pleaders in the forensic arts of distorting language and perverting intention. Consequently this method deliberately adopted by the Judicial Committee of the Privy Council, introducing a strange novelty into ecclesiastical proceedings, betraying an ill-concealed suspicion of its own competency by tacitly confessing a want of confidence in itself, and unreasonably seeking extraneous aid by casting on others responsibilities empha- tically its own, cannot fail to engender such elements of mystification, and invite such opportunities for misrepresentation, as must tend infinitely to multiply the very difficulties which it thus vainly struggles to evade. 160 Methods of Proceeding unsatisfactory. [Ch. XI. (II.) Another method of proceeding con- nected with this Court may be cited as a very serious ground of dissatisfaction. Of the " articles of charge" filed in the lower Courts, those only which are retained by the judge there come before this tribunal. Those which are rejected there are elimi- nated from its cognizance on appeal. Now in the case of a trial for heresy or false teaching this is very unsatisfactory. If a matter of this nature is taken piecemeal, the most deplorable miscarriages in justice are likely to ensue. In such a case the different parts of the teaching complained of may be so mutually dependent on each other, the relations of thought and the connexions of argument contained in different passages may be so closely intertwined, that a due consideration of the whole may be essential for arriving at a just judgment ; otherwise the interests of defence, no less than of com- plaint, may be imperilled; and therefore the whole charge, as originally made before the lower tribunal, ought to be submitted in the cases now under consideration to the Final Appeal Court. Doubtless in secular jurisprudence it may facilitate the administra- tion of justice that a cause should be sifted in the lower Courts, and certain points only left for decision by the final tribunal. But this method when applied to the subject-matter of a spiritual trial, falls short of satisfaction. The Sec. 4.] Methods of Proceeding unsatisfactory. 1G1 whole charge, as originally made, and nothing less, should come before the final Court, and this in justice both to the accuser and the accused equally ; for the points eliminated in the Court below may have most important bearings, either for conviction or acquittal, on the only matters left for the consideration of the final tribunal. And further, suppose the judge of the lower Court to reject the right articles and retain the wrong ones, by no means an im- possible contingency, indeed it is not certain that it has not been realized within recent memory, then the whole case, when it is most desirable for public reasons of the highest import that justice should be done, would fail, not upon the merits, but in consequence of this mode of procedure, which is ill-suited to the exigencies of the case. (III.) There is another method of pro- cedure connected with this Court which is a source of very grave dissatisfaction in the opinion of those best qualified to form a judgment in such matters. It is the practice for one member to deliver the judgment of the Court, all the rest being precluded from stating their individual views on the case before it. Now this is not the practice in our other Courts of Justice, where each judge in turn delivers his opinion on the matters under consideration, whether that opinion coincides 162 Methods of Proceeding unsatisfactory. [Ch. XI. Williams r. Bp. of Salisbury, Wilson v. Fendall, Eccl. Judgments, p. 290. with the prevailing judgment or not. The method adopted in this Court is indeed founded on a hazy fiction, that its conclusions are not judgments at all, but merely recom- mendations in the appeal to the Crown, which is supposed to give a final judgment in the case, and that such recommendations are the conclusion of the majority of the members. But whatever airy theories may float about the Chamber in Whitehall, this is in reality and in fact a final statutable Law Court, established by Act of Parliament in recent times, and the effects of its judgments follow as absolutely on its decisions as do those of any other constitutional tribunal whatsoever. Its method of proceeding should therefore, in all reason, as regards the point before us, be assimilated to theirs. And further, considering the subject-matter and the diverse qualifications and characters of the judges frequently here associated, it is emi- nently unsatisfactory that the several members should be precluded from delivering their indi- vidual opinions. It is by no means improba- ble, considering all the circumstances of this tribunal, that the conclusions of the minority whose opinions have been overridden, might, from the authority, character, and qualifica- tions of those holding them, be entitled to the greater weight. Indeed, within very recent times an occasion occurred when such was the case. Sec. 4.] Methods of Proceeding unsatisfactory. 163 It is notorious that in legal estimation the weight and authority of precedents vary very considerably in proportion to the character of their authors ; and in the case before us it is more than commonly desirable, when a precedent is laid down, that it should be dis- tinctly known who is responsible for it, and whether the opinions of theologians or of secular lawyers have prevailed. The whole Church of England, and those who are in Communion with her in other lands, are deeply interested in the final judgments of this Court, and it is beyond measure unsatis- factory that there should be any veil of secrecy whatsoever thrown around those persons on whom the grave responsibility of decision rests. Doubtless complaints against this tribunal such as those three last mentioned, which arise out of its unsatisfactory methods of procedure only, are not of such grave import as those which He against the principles on which the Court is constructed, both because such faults in practice might probably without much difficulty be remedied, and because they do not reach down to those constitutional disorders of the whole system which are hopelessly incurable. Still, however, these methods of procedure contribute to swell that ample measure of dissatisfaction which is very widely spread and very deeply felt. 164 The SoJoccism of a Civil Court [Ch. XI. Vid. inf. cliap. xii. passim. 5 The Soicc there ^ s s tiU another ground cism of a Civil of dissatisfaction with this tribunal, Court affecting _. . . SpirituaUuvis- and that m a practical point of dictions. • i , t n view, perhaps, graver than any 01 those which have been mentioned in this chapter. It is this : that the existence and action of this Court involve a negation of all precedents, ecclesiastical and constitutional, meanwhile entailing contradictions most glaring and complications quite inextricable ; for though it is by the general law a Civil Court, yet at the same time it affects spiritual jurisdiction, and undertakes to decide on theological issues. Now this is a point which deserves to be considered with some care and particularity. It is by some people supposed that the nature and extent of authority which this secular tribunal exercises over spiritual jurisdictions is warranted by the examples of other civilized countries. But this is not so at all : our system is a soloecism. In foreign juris- prudence, as shall be shown at length in the next chapter, the Civil Courts will review ecclesiastical sentences so far as they touch civil rights, and so far only, for those Courts never affect, as in the case of the Judicial Committee of Privy Council, to try spiritual issues ; they never pretend to settle theo- logical disputes. That a distinct understanding of what this Court, unlike secular Courts in all other Sec. 5.] affecting Spiritual Jurisdictions. 1<35 civilized countries, undertakes to do, it is necessary to glance for a moment at the true nature and extent of spiritual authority. It may be said generally to regard, (1) The ad- ministration of rites and Sacraments, (2) the teaching of the Word, (3) the government of Christian society by adjudging censures of the Church, with concomitant penalties, against those who misbehave. While the action of this Court incidentally touches the two first-mentioned heads of spiritual autho- rity, yet manifestly it is most directly- con- cerned with the third and last. And this is directly exercised in a fourfold manner (1) by admonition, (2) by suspension, (3) by deposi- tion, (4) by excommunication, with the con- comitant disabilities and penalties attaching under each sentence. Now, not to weary the reader by multiply- ing arguments, let us take an example which may serve for all under the first division of punishments involving the most lenient of ecclesiastical sentences, that of admonition. We shall thus be able to arrive at a sufficient appreciation of the strange principles which underlie the constitution of this Court, and of the absurd results which must of necessity flow from its action. Suppose a clergyman to have been admonished in respect of his doctrinal teaching by his Diocesan, and suppose this admonition to have been affirmed on appeal by his Metropolitan; the clergy- 1GG The Solcecism of a Civil Court [Ch. XI. man may then appeal from these sentences of admonition to the Judicial Committee of Privy Council. Thus, on a question purely spiritual, involving an issue purely theolo- gical, an appeal would be carried from autho- rities purely spiritual to a tribunal which by the general law is purely secular. And the contingency of an admonition for false teaching administered to a clergyman by a Bishop, ratified by an Archbishop, and then reversed by a body of laymen, may be com- mended to the reader as supplying matter for grave consideration. Indeed, the very pos- sibility of such an event, as before said, involves a soloecism in civilized jurispru- dence, existing in no other country which has emerged from barbarism, except in England. And further : this solcecism here affects no other denomination of men, no other society except the Church. She is the sole victim of this Parliamentary accident, this legislative blunder, by which the Judicial Committee of Privy Council — a Court composed by the general law exclusively of laymen — is legally armed with power to reverse the admonitions in respect of doctrinal teaching addressed by Bishops and Archbishops to clergymen under their jurisdictions. In any such case where that tribunal should avail itself of its legal authority, the incidence of costs would doubtless follow its judgment. But the moral weight which Sec. 5.] affectmg Spiritual Jurisdictions. 107 would reasonably attach to its decision may be duly estimated by any one who will take the trouble to refer to pp. 6, 7 of this volume, and there peruse the names of the members of the Judicial Committee of Privy Council, from whom a Court for the revision of Episcopal and Archiepiscopal sentences must be selected. In casting his eye over the list, the reader may picture to himself either a possible or a probable construction of the Court. But in either case, were the matter not thought too serious for any hilarity, a smile would certainly be provoked by a con- sideration of the subject-matter of its judg- ments as contrasted with the composition of a tribunal — "Cui placet impares Formas atque animos sub juga ahenea Ssevo inittere cum joco." For however wisely and well this Court may be constituted for hearing Admiralty, Colonial, and Indian appeals, the same cannot be said as regards its fitness for wielding the Ecclesiastical Jurisdiction unintentionally committed to it. This subject might be pursued at length through the other grades of Ecclesiastical penalties rising from admonitions upwards. From a contemplation, however, of the lowest step, one may arrive, at least in this case, at a sufficient sense of the unwelcome character of the future ascent. But to whatever part of N Hor. Od. i. 33. 10—12. 168 The Soloecism of a Civil Court, Sfc. the system special attention may be directed, the following considerations can hardly fail to occur to any thoughtful mind. It is ill that the judgment of an ultimate Appeal Court in matters spiritual should in all cases lack the moral weight which should ever attach to final jurisdictions. It is much worse that its definitive sentences should in no case be secure from being wholly and absolutely ignored and repudiated in the conscientious forum. This dilemma, in fine, is forced upon us by the constitution and action of this tribunal. If it is a secular Court, how, in contradiction to all civilized jurisprudence, both foreign and domestic, as hitherto received, can spiri- tual issues rightly be submitted to its judg- ment ? If, on the other hand, it is an Ecclesiastical Court, how can it be defensible that no single Ecclesiastic should by the general law be a member of it? To give a satisfactory answer to these queries, or either of them, would require ingenuity more than common. Introductory. 169 CHAPTER XII. ECCLESIASTICAL APPEALS IN OTHER COUNTRIES. 1. Introductory.— 2. Ecclesiastical Appeals in Greece. — 3. In Russia. — 4. In Belgium. — 5. In France. — 6. In Scotland. — 7. Ecclesias- tical Jurisdiction in the United States of America. i. introduc- ^ E have seen above that the tor y- Court of Final Ecclesiastical Ap- peal, as established by an unhappy accident in this country, not only contravenes great principles, " religious," " ecclesiastical," and " constitutional, " but that many other grounds for dissatisfaction with this tribunal exist. It now becomes matter of interest to inquire whether the Christian Church in other civilized nations is subject to like grievances — this being distinctly borne in mind, that in this country the decisions of the highest spiritual authorities are subject to reversals by a Court quite unsuited by character and qualifications for such functions, not only as being composed by the general law exclu- sively of laymen, but as consisting of persons for whose competence in theological acquire- ments there is no guarantee whatsoever, and who, moreover, may be all dissentients from the faith of the Church of England. N 2 170 Ecclesiastical Appeals in Greece. [Ch. XII. For the purpose of prosecuting such inquiry, one may fairly take the examples of countries essentially varying in their ecclesiastical and constitutional conditions, as for instance, (1) of Greece and Russia, where branches of the primitive and most venerable Eastern Church are established ; (2) of Belgium and France, where the less ancient Roman Com- munion prevails ; (3) of Scotland, where a still more modern system of Ecclesiastical Polity receives the sanction of secular law; and lastly, (4) of the United States of America, where, under the latest developments of Re- publican policy, the recognition of a national faith is discarded, and any special preference of the State is denied to every form of religion whatsoever. And if it shall be shown to be a fact, that under these varying circumstances, and in these civilized countries, which present so many diversities of conditions, no such blot upon national jurisprudence in this respect can be found as offends in England ; then one may fairly hope that if for no other reason, yet out of simple respect to our national cha- racter, all those who deprecate a just charge of legislative barbarism, will each help ac- cording to his means to have that blot erased. „ , . To begin, then, with the kino:- 2. Eeclesias- ° ' & tical Appeals dom of Greece, where a branch of the most ancient Eastern Church is established. For our inquiries may not Sec. 2.] Ecclesiastical Appeals in Greece. 171 only be reasonably directed thither first, on account of the antiquity of its origin, but because that Church, having freed itself from subjection to any foreign supremacy, holds relations to the Greek nation and its civil government in close analogy with those which exist between the Church and the State in England. In Greece the " Holy Synod " is the Final Appeal Court in Ecclesiastical causes. Formerly the Church of Greece was subject to the Patriarchal Throne of Constantinople. But since an independent Greek nation has been established the Church of Greece has also asserted its nationality and its indepen- dence on any foreign jurisdiction. In fact it has been formally acknowledged to be as independent as the Church of Constantinople itself; the " Tomo Sinodale" the Ecclesias- tical Charter of the Church of Greece, in effect declaring its full independence on the one hand, and on the other its inseparable union as to doctrine with the other Churches of the same communion. The hierarchy in Greece is composed of twenty-four prelates — one Metropolitan re- siding at Athens, ten Archbishops, and thirteen Bishops. Independent of each other in all matters relating to the discharge of their Episcopal duties, they are subject to no other appellate authority than that of the " Holy Synod," the judgments and ordinances of Col.Ch. Chrou. No. 224, p. 64. 172 Ecclesiastical Appeals in Greece. [Ch. XII. Off. Rep. Greek Minister of Public Worship. Vid. inf. p. 179. which they are bound to obey. And as each Bishop has to govern his diocese according to the Ecclesiastical ordinances and canons, so he is responsible to the " Holy Synod " for any thing done contrary to those regulations. In the correction of Clerical misdemeanours, he passes, in conjunction with four of the clergy themselves, judgment, and inflicts penal disci- pline on such as commit offences punishable by the Canons. If such Episcopal judgment in- volves suspension from ministerial functions •for seven days only, the sentence is final, and there is no appeal ; but all decisions and judgments of graver consequence are either submitted to the " Holy Synod," or may be carried thither on appeal. That Synod is a permanent body, having the spiritual government of the orthodox Church of Greece. Being the highest Ecclesiastical power in the kingdom, it bears the title of the " Holy Synod of the Church of Greece," and holds its sittings at Athens. It is composed of five members, whose votes are reckoned equal. The Metro- politan of Athens is always President, the four other members are appointed by the Government annually in succession from the prelates of the kingdom according to the dates of their consecrations. Besides these members of the Synod a Government Com- missioner (as we shall hereafter see is also the case in Russia) is always present during Sec. 2.] Ecclesiastical Appeals in Greece. 173 the sittings, having no vote, but affixing his signature to the minutes of all the acts and decisions of the assembly. As the duties of the Synod, following the ancient division of Ecclesiastical Jurisdiction by the Emperor Constantine, are separated into " internal," that is, such are spiritual and belonging to the Church independently of the State, and " external," that is, such as respect the State and the civil rights of the people, so the Synod cannot fulfil all its functions without the knowledge and con- currence of the Government. But in all affairs purely Spiritual the Holy Synod exer- cises final superintendence and control; and to it "as a Supreme Court of Appeal" are carried, if needful, judgments of the Bishops affecting Ecclesiastical persons, and regard- ing misbehaviour of the Clergy under their respective jurisdictions. In the matter of punishments inflicted by the Holy Synod the State retains in its own hands a power, though one perhaps not frequently exerted, of limiting their severity. As a Bishop associated in his consistory with four presbyters can only suspend an offender for seven days without reference to the " Holy Synod," so the Synod itself can only inflict temporary suspension or imprisonment for fifteen days without civil authorization A sen- tence adjudging punishment for a longer period requires the sanction of the State ministers; Mosb. Eccl. H. p. 141. Helms. Off. Rep. Greek Minister of Public Worsbip. 174 Ecclesiastical Appeals in Russia. [Ch. XII. and if it extends beyond two months, as for instance in the case of deprivation, then the approval of the Sovereign is required. But it is distinctly to be understood that this involves no right of appeal on the merits of the case against the Ecclesiastical judgment. It is merely a power reserved by the State of restraining severity of sentence on Con- viction. It is too frequently the habit of the inhabi- tants of rich and powerful countries to regard the institutions of less fortunate nations with somewhat contemptuous feelings ; but this at least may be said with perfect truth, that the ancient home of Lycurgus and Solon has certainly succeeded in devising a system of Ecclesiastical appeal, which by contrast may well raise a blush for the clumsy burlesque on legislation which disfigures the Statute Book of England, and is at once an offence to the Church and a discredit to the State. The Final Court of Ecclesiastical 3. Eeclesias- _ . ticai Appeals Appeal in Russia is the " Holy ill Russia. ^ . o, -, T n Governing feynod. In former times appeals from the Church in Russia lay to the Patriarch of Constantinople, as in the middle ages an appellate jurisdiction over this Church of England was claimed by the See of Borne. However, as both the Church of Russia and the Church of England have respectively asserted their independence on any foreign jurisdiction, it is a matter of Sec. 3.] Ecclesiastical Appeals in Russia. 175 some interest to observe the contrast between the changes effected in the two countries, and to mark the substitution made in each case for the external authority which has been discharged. And here it must be confessed that whether those changes are looked at from an Ecclesiastical or a Civil point of view, neither English divines nor English statesmen have any great reason to be proud of the comparison. From the similarity of the circumstances affecting England and Russia in several par- ticulars connected with our subject, an interest arises which will be a sufficient excuse for treating this matter at some length. The history of the Russian Church in re- spect of discipline divides itself into four periods. 1. (988 — 1240.) A Church in full depen- ms. supplied by l ^1 rvi t ■ n n' i i • i an accredited clence on the Church oi Constantinople. authority. 2. (1240—1589.) A Church gradually ac- quiring independence with consent of the Patriarch of Constantinople. 3. (1589 — 1721.) An independent branch of the Holy Eastern Orthodox Catholic Church, subject to its own Patriarch. 4. (1721 — 1868.) An independent branch of the Church as before, but now consisting of a union of Provinces and Dioceses under Synodical government. And it is observable that the Russian Church, in the principle of this its later form of government, though not 176 Ecclesiastical Appeals in Russia. [Ch. XII. j Cone. Chalc. Can. XXVIII. in the method of applying that principle, is identical with our own. 9S8 — 1240. During this first period the Eussian Church held the position of one of the Greek " Metropolia," and was governed by a Metropolitan, who had authority over all the Russian Bishops — though himself subject, in accordance with the twenty-eighth Canon of the Fourth (Ecumenical Council, to the Constantinopolitan Patriarch — and was both elected and consecrated at Constantinople. 1240 — 15S9. During this second period the Russian Metropolitans increased in impor- tance and independence. In the early part of this time they were mostly elected in Russia, though still they were obliged to receive confirmation from the See of Constantinople. But during the later part of this period, that is after the year 1452, when Turkish oppression rendered intercourse with the Greek Chris- tians difficult, the Russian Metropolitans ceased to visit Constantinople, and were consecrated as well as elected in Russia; so that the Russian Church thenceforward became de facto autocephalic, being only de jure dependent on the Patriarch of Con- stantinople. 1-jSO — 1721. At the beginning of this third period the independent Patriarchate of Russia was formally instituted, and was framed after the pattern of the Alexandrian, and not of the Constantinopolitan model; the Russian Patri- Sec. 3.] Ecclesiastical Appeals in Russia. 177 arch electing not the Metropolitans only, in accordance with the Constantinopolitan rule, but all the local Bishops also, in accordance with that of Alexandria. It is also observable, that in Russia Metropolitans had only a pre- cedence of title and honours, the Bishops being equal to them in point of authority. 1721 — 1868. This fourth period witnessed the establishment of the " Holy Governing Synod," which was instituted with authority equal to that of a Patriarch. Thus, by considering the changes which took place during these four periods, we see that the Russian Church has existed under three forms of government. (1) The Metro- political, under a twofold aspect ; (2) the Patriarchal ; (3) the Synodical. This last form of Ecclesiastical polity it maintains at this hour. And as in this respect it resem- bles our own Church, at least in its principle of government, we may reasonably inquire with peculiar interest into the constitution of its final Court of Appeal. That executive tribunal of last resort, as before said, is the " Holy Governing Synod," the same body which is directly charged with the supreme legislative authority over all Ecclesiastical affairs in Russia. Temporary Councils having been found insufficient for the regulation of the Church, this standing permanent Council, when first established in 1721, was invested with all coercive jurisdic- 178 Ecclesiastical Appeals in Russia. [Ch. XII. received Sept. 1724 MS.suppliedby an accredited authority. tion which had immediately before resided in the Russian Patriarch. Its establishment was cordially acquiesced in by Jeremiah, Patri- arch of Constantinople, and by Athanasius, Patriarch of Antioch. At its first institution it was not constituted exactly on the same model as that which now prevails. It is needless here to specify the particular modifi- cations which have taken place ; it will be enough to describe its constitution as at present existing. As a local permanent Council of the Russian Church, the " Holy Governing Synod" is composed of the highest dig- nitaries ; Prelates of the Episcopal Order representing the regular body of the Clergy, and Presbyters representing the secular Clergy. At this time seven members only constitute the assembly, with power to add to their number ; a power which, as some think, might not unreasonably be exerted. They are as follows : — 1. Isidore, Metropolitan of St. Peters- burg. 2. Arsenius, Metropolitan of Kiev. 3. Philopheus, Archbishop of Tver. 4. Basil, Archbishop of Polotsk. 5. Nectarius, Bishop of Xijni-Xovgorod. 6. Father Bajanoff, Emperor's Almoner and Confessor. 7. Archpriest Rosjdestvensky, Archpriest of Array and Navy. Sec. 3.] Ecclesiastical Appeals in Russia. 179 In accordance with, the examples of the Ancient Councils of the Church, at which, after the connexion between Church and State, in the reign of Constantine, an emis- sary of the emperor was wont to be present as a medium of communication between the Ecclesiastical and Civil authority, the Holy Governing Synod is attended by an " Ober- Procurator," appointed by the Czar. But this officer, at the present time Count Dmitri Tolstoy, as being a layman, has not even a deliberative, much less a decisive voice on any matter in the Synod ; and in token of this incapacity, when the members are in Session he sits at a separate table. And this restraint on his interference with spiritual questions is in exact accordance with the principles enunciated by the early Christian emperors, as has been shown at length above. In fact the Ober-Procurator has no power of himself, nor can he act from the person of the Czar without his written authorization. The Ober-Procurator' s duties are generally to arrange legal documents, and to be the medium between the spiritual and lay authorities by presenting the Synodical decrees to the emperor, by acquainting the Synod with his observations thereon, and by acting the part of Synodal agent in cor- responding with the different departments of the Civil Service. He also superintends the due observance of the law in all matters Viil. snp. pp. 108—114. 180 Ecclesiastical Appeals in Russia. [Cn. XII. relating to the departments of Education and Finance which are attached to the Synod. The duties of the Synod may be comprised under the following heads : — To superintend the propagation and preservation of the orthodox faith ; to examine theological works ; to solve doubtful questions of doc- trine ; to superintend the construction of places for worship and pious devotion ; to choose candidates for vacant Sees, and con- secrate those who have received the Imperial assent ; to decide in final resort on cases relating to marriage and Church discipline ; generally to settle all cases brought up from the lower spiritual Courts ; and, finally, to superintend matters relating to the use and arrangement of Church property, and to keep account of all sums allowed by the imperial treasury for Church purposes. Further : the Synod has authority to draw up new enactments when circumstances require them. But this authority is limited on the one side by the Apostolical Canons, (Ecumenical Councils, and Patristic rules, which it is bound to preserve inviolate, and on the other by the Civil power, from which the Synod receives authorization on each occasion when it makes new regulations. Lastly : the Czar himself gives his formal assent and consent to the acts of the Synod ; and though thus it would seem at first sight that he has the power constitutionally of Sec. 4.] Ecclesiastical Appeals in Belgium. 181 putting his veto on them, yet in reality he has no such power, being now limited by the terms of his own corporal oath which he takes at his coronation. And it is said moreover as a fact, that there is no one instance on record where the Emperor has contravened a decision of the " Holy Govern- ing Synod." Such is the tribunal which decides final Ecclesiastical appeals in Russia. In the words of Peter the Great : " All other subjected Courts and persons receive the commands of the Synod, and refer to it with their petitions, reports, and informations." Its authority is set forth in the " Reglamentum Spirituale," i. e. the Russian Canonical Code, as follows : — " We do command all the orders of the clergy and the laity to hold this as a solemn and powerful Government, and to seek from it all final decisions and sentences in matters spiritual, and to be content with its judgment, and in every thing to obey its enactments." This tribunal is, by its constitution, well adapted for these assigned duties, and by contrast exhibits in no very advantageous light the indefensible Court accidentally esta- blished for the same purpose in our own country. . „ , . In the case of Belgium a few 4. iiCClesias- _ D tied Appeals words will suffice. There is no Court of Final Ecclesiastical Appeal held within the limits of that country. The " Ch. Gov. in Russia." Rivingtons, 1867. 182 Ecclesiastical Appeals in France. [Ch. XII. Laine, Dupiu, Misrne. Bishops are all appointed directly by the Pope, "without reference to the State or CroAvn, and the Clergy are entirely under the control of those Prelates, who, by the way, are said to exercise a somewhat rigorous sway over such as are committed to their superintendence. Consequently, in matters of faith and clerical discipline, the final appeal lies directly to Rome. Xow, without in the least degree committing oneself to an approval of such a method of redress, which is wholly unprimitive, and directly opposed to the most worthy precedents of historical antiquity, yet for our present argument the fact is instructive, as showing that the Hildebrandine theory of spiritual discipline and government as accepted by the Roman Church in Belgium is no way interfered with by State autho- rity. The principles of French legisla- tion on the subject before us care- fully guard the rights, both of the Church and of the State — the rights of the Church as they respect matters of faith, the rights of the State as they respect the just liberties of the subject. Bothare equally secured in France; and as her legislation touching Ecclesiastical appeals bears upon it the im- pression of much wise thought and careful consideration, and, moreover, as it has been fully treated of by lawyers and theologians of the highest reputation, it might very 5. Ecclesias- tical Appeals in France. Sec. 5.] Ecclesiastical Apj)eals in France. 183 easily, and beyond all question very pro- fitably, receive some attention from our statesmen and divines. In France — a broad distinction being drawn between matters of faith and matters of discipline — Ecclesiastical appeals lie directly from the Bishop to the Metropolitan, and from the Metropolitan to the Pope. But the " appel comme d'abus" the " appellatio tanquam ab abusu" is a method by which the civil power in certain cases steps in and asserts its authority. By this means there is a final appeal under specified circumstances in causes Ecclesiastical to a State tribunal. The prin- ciple, however, which regulates the exercise of Civil supremacy in the " appel comme d'abus" is in strict conformity with the maxim that the Imperial power should assist in the due promulgation, and should oversee the just execution, of Ecclesiastical sentences, but should not take part in the examination of the dogmas of faith involved in any Spiritual cause. And this is in close accordance also with the principles of jurisprudence laid down by Van Espen and De Marca, before quoted. The interference of the Civil Court in an " appel comme d'abus " is consequently limited to special cases (1) where, in assigning penalties, the Ecclesiastical Tribunals have exerted an excess of power; (2) where they have violated the laws of the kingdom or the liberties and rights of the subject ; (3) o Sup. pp. 108. 114. Sup. pp. 115, 116. 184 Ecclesiastical Appeals in France. [Ch. XII. where they have committed outrage or violence in the exercise of Ecclesiastical authority. In such cases only, an appeal will lie to the Secular Court. But under this form of proceeding no right of inter- ference has ever been claimed by the civil power in the determination of purely spiritual questions. The freedom of the Gallican Church from any secular interference in this respect was strenuously maintained by the doctors of the Sorbonne upon the principle that as National Churches could decide on questions of faith independently of the Pope, so they could a fortiori decide independently of the prince. And this principle has been fully admitted into the jurisprudence of France, by which the " appel comme oVabus " is dis- tinctly limited to the cases above specified. It should be here added that while the theory of French law admits the " appel comme d'abus," the proceeding, as a fact, is rarely, if ever resorted to. However, the principles on which it is grounded appear well worthy of consideration by our au- thorities in Church and State, and if properly applied here, might prevail to mend the abnormal and indefensible condition of our own legislation. In Scotland the final Court of 6. Ecelesias- . . „. ticai Appeals Ecclesiastical Appeal is the " Ge- in Scotland. , . -, neral Assembly. The Courts of the Establishment in that Sec. 6.] Ecclesiastical Appeals in Scotland. 185 country are four in number, and shall be viewed in an ascending order. (I.) The " Kirk Session," the lowest Court, is held in each parish, and consists of the minister and elders of the parish. TJie minister is "President," or "Moderator," and in his absence no business can be transacted. The number of these "Kirk Sessions " is more than a thousand. (II.) The "Presbytery" is the second Court. From the " Kirk Session " there is an appeal to the "Presbytery," a body consisting of the ministers of a number of neighbouring parishes, and of an equal number of lay elders, one elder being sent from each parochial Kirk Session. The number of parishes united in a " Presbytery " varies according to circumstances, from three in Shetland, to thirty or forty in Edinburgh or Glasgow. The Presbyteries are eighty-four. (III.) The " Synod," or as it is more pro- perly called, the " Provincial Synod," is the third Court. The " Provincial Synod " con- sists of one minister from every parish church, and of one elder from every Kirk Session within the Synodical boundary, together with certain corresponding members or delegates from neighbouring Synods. The extent of these Synodical boundaries varies according to circumstances, some Synods combining only three Presbyteries, others as many as eight. The number of Synods is sixteen. o 2 186 Ecclesiastical Appeals in Scotland. [Ch. XII. (IV.) The "General Assembly" is the fourth and last tribunal, being a Supreme Court of final appeal. It is composed of (1) two or more ministers from every Presbytery, (2) one or more elders, called ruling elders, from every Presbytery, (3) a representative of each of the four Universities, who may be either a minister or an elder, (4) a Commissioner, who must be an elder, from each of the seventy Royal Burghs ; and (5) a Lord Commissioner delegated by the Crown. This is the Court of last resort. There is no appeal from its judgments to any tribunal whatsoever; not to Parliament, nor to the Crown. The effects of its sentences cannot be averted but by an action in the Supreme Civil Court, and this can be maintained in those cases only where civil wrong has been inflicted by the " General Assembly's " going beyond its jurisdiction, or otherwise violating the laws or constitution of the country. In fact the principles which govern the French " appel comme cVabus" prevail also in Scot- land. The power of the Lord Commissioner as representative of the Crown in the " General Assembly" is a moot point. In form, the "General Assembly" and the Crown each asserts supremacy, in fact, the Crown leaves " the Assembly " free to act as it pleases. The last conflict took place in the reign of King William III., when the Crown insisted Sec. 6.] Ecclesiastical Appeals in Scotland. 187 on dissolving " the Assembly," and in fact did dissolve it, not allowing another to sit till it suited His Majesty's convenience. But though "the Assembly" was thus sub- ject to constraint, it obeyed under protest, and it is by no means admitted by those well qualified to judge, that the authority of the Crown was not unjustly and uncon- stitutionally overstrained. As regards the penalties inflicted under the authority of the " General Assembly," sus- pension of a minister for teaching doctrines repugnant to the " Confession of Faith " — the authorized standard — may be, and has been inflicted, but it is a comparatively rare punish- ment. Deposition is more common. However, in either event, whether of suspension or deposition, no relief from the penalty imposed can be obtained, except in a case of manifest excess of jurisdiction or violation of law, and then only by an action in the Civil Court ; for there is no appeal on the merits, as before said, to any authority whatsoever, not even to Parliament, nor to the Crown, from the final sentences of the " General As- sembly of Scotland." Now here again, even within the limits of our own island, we find a course of appeal in spiritual causes existing which, by contrast, exhibits in a strong light the indefensible system to which the Church of England is sub- ject. And, moreover, one gathers that there 188 Ecclesiastical Appeals in Scotland. [Ch. XII. can be at least no constitutional bar against a course being pursued here analogous to that which prevails north of the Tweed and Sark. It is no part of my object to defend a Presbyterian form of Church government, nor the admission of laymen into an assembly convened for deliberation on questions of doc- trine ; indeed, such defence more properly be- longs to those who think that it may be main- tained upon the principles of the Apostolical and Primitive Church. But it must be said, that admitting the " General Assembly of Scot- land " to be the supreme legislative authority in matters of faith for the Scotch Kirk — as its members hold and affirm it to be — then nothing can be more consonant with religious duty, right reason, and the true principles of ecclesiastical and civil jurisprudence, than that that nation should have maintained the "Assembly" as the Court of Final Appeal in Causes Spiritual. Such a determination is worthy of all admiration, not only as asserting great religious principles, but as affirming those fundamental maxims of general law which have regulated final jurisdictions in past generations of men, when the science of legislation, to speak softly, was not less deeply studied, nor less clearly understood, than among us in this nineteenth century. For the maxim, " Gujus est condere ejus est interpretari" enforces a truth which, in these later days, has passed too much out of Sec. 6.] Ecclesiastical Appeals in Scotland. 189 mind, though it may perchance assert itself in most unexpected quarters, and it may be at most inconvenient seasons. But however little regard may now be paid to it in modern legislation ; however men may have habitu- ated their minds to the notion of the suprem- acy of Courts, wholly forgetting that Courts are but the creations of a power above them- selves ; yet the maxim above mentioned has unmistakably set its mark on the jurispru- dence of venerable antiquity. It is conspicu- ously illustrated here in our own country in the fact that all appeals from our Common Law Courts still lie ultimately to the House of Lords, representing the great council of the nation, the source of all law, the " Mag- num Concilium" as it existed previously to the separation of the Supreme Legislative Assembly into two houses. Beyond all question the present practice which prevails, involving a delegacy of the Lords for hearing such cases, does not carry out the principle involved in its integrity. But the fact that common law appeals do arrive at the Upper House of the Legislature in last resort is a sure and abiding testi- mony that the principle now under view aforetime bore sway in this land, and is not as yet, at least in theory, wholly abandoned. Indeed it is manifest that the adoption of any other principle is surrounded with diffi- culties, and attended with dangers, of which 190 Ecclesiastical Appeals in Scotland. [Ch. XII. signal warnings have lately been supplied from the other side of the Atlantic. When the Supreme Court of the United States of Ame- rica lately ventured to suggest doubts as to the constitutional character of some proceed- ings in Congress, a clamour at once arose for impeachment of the Judges. Courts, even though asserted and assumed to be final, are but the creations of a power superior to themselves, and on the very first shock of collision between legislative and executive authority, it requires no prophet to foretell which will bite the dust. And if in secular matters it is a right principle that the authority which makes law should in last resort be the interpreter of it (and it certainly will be so in extreme cases, whether the admission of the principle is palatable or not), how much more needful is the adoption of this principle in matters of spiritual contention ! For in such cases the authoritative documents and formal em- bodiments of law are much more general in their expressions than civil enactments; for- mularies directed to restrain the inner eccen- tricities of the human mind are of necessity less precisely defined, and of wider appli- cation than instruments which are framed to govern the outward conduct of men. From the foregoing considerations, the principle which has been adopted and main- tained of committing final appeals in spiritual Sec. 7.] Eccl. Jurisdiction in United States. 191 causes to no Court at all, by the Scotch Kirk, but to its highest legislative authority, ap- pears unexceptionable. Such a system is not only worthy of imitation from the fact that it accords, at least in principle, with the primitive practice of the Church, as illus- trated by the history of the early Christian Councils ; but further, it commends itself to reason, as being in entire harmony with those fundamental principles of law which underlie the exercise of all executive jurisdictions. In contemplating the case of Scotland, the system of final appeal to which the Church of Eng- land has been subjected presents from every point of view a sad contrast, and in this respect at least the good example of our northern fellow-subjects seems to have been among ourselves wholly disregarded. „ „ , . In the Episcopal Church of the 7. Ecclesias- _ 1 1 ticai Jurisdic- United States of America in com- tion in the . ■ -i n n n -n i ' i United states mumon with the Church oi England of America. ^j iere is no Ecclesiastical Appeal, the first judgment pronounced in a Spiritual Court being definitive. As no Ecclesiastical divisions into provinces have been there established, as judicial powers are not con- ferred on the General Convention, and as no Court of the nature of a central appellate tribunal has been ever there created, final jurisdiction over Priests and Deacons resides in each separate diocese. It is not considered essential that the pro- Digest, Tit. ii. Can. 1. 192 Eccl. Jurisdiction in United States. [Ch. XII. ceedings in the trial of a clergyman should be identical in all dioceses, each regulating its own mode of proceeding. The course, how- ever, pursued in Massachusetts may serve as a specimen. Every diocese has a " Standing Committee," which is an executive body designed to assist the Bishop in the discharge of his secular duties. In Massachusetts this body performs functions analogous to those of a Grand Jury, and in case of a charge against a clergyman holds a preliminary investigation. If in the opinion of the Standing Committee there is "probable cause," it makes a formal presentment to the Bishop, with regular specifications of the offence assigned. The Bishop then nominates nine Presbyters, of whom the accused may strike off four, and the remaining five constitute the Court. The Bishop himself does not attend the Session of the Court, nor take any part in its proceedings. Each side may be represented by counsel, either lay or clerical, and when the hearing is ended, the entire record, including all the evidence, the judgment of the Court, and the sentence it recommends, is transmitted to the Bishop, who may diminish, but cannot in- crease the severity of such sentence, or he may grant a new trial. No diocese in the United States has esta- blished a second Court of Appeal from the first, consequently from no Ecclesiastical judgment on any point of law or of fact, Sec. 7.] Eccl. Jurisdiction in United States. whatever the punishment adjudged, is any Spiritual appeal allowed to a clergyman beyond the Bishop of each diocese and the Court which he organizes in the first in- stance. Discipline, as exercised over Bishops, since no Provinces and consequently no Metro- politan Courts exist, belongs to the General Convention. The provisions, however, for this purpose vary in charges of Heresy, and in charges for other offences. (1) In cases of Heresy the whole House of Bishops, except the accuser and the accused, is the Court, and a Bishop must present the offence. The presentment is addressed to "the Bishops of the Protestant Episcopal Church in the United States." Three-fourths of such Bishops constitute a quorum, and the consent of two-thirds of all the prelates entitled to seats in the House of Bishops is necessary to a conviction. This principle that a Bishop should be judged by Bishops only is in strict conformity with the example of the Primitive Church. For down to the ninth century a Bishop could not be tried in a Court at all, nor by any other authority than by his brother Bishops, in Synod, whatever practice may have been introduced in more recent times. (2) In charges other than those of Heresy against a Bishop, the proceedings are as follow : — A board of clergy and laity chosen 193 Digest, Tit. ii. Can. 9, § 7. Apost. Can. 73. Cone. Con- stant, i. Can. 6. Antioch. Can. 3. Van Esp. Jus Eccl. p. 1, t. 20, c 3, § 4, p. 3, t. 3, c. 6, §3. Digest, Tit. ii. Can. 9, § 4. 194 Eccl. Jurisdiction in United States. [Ch. XII. Digest, Tit. ii. Can. 9, § 5. Ibid. § 6—12. Ibid. Tit. i. Can. 11. by lot, under the direction of the presiding Bishop of the Church, makes a preliminary- investigation ; and if the majority are of opinion that there are sufficient grounds to put the accused Bishop on his trial, they direct the Church Advocate to prepare a pre- sentment. The presiding Bishop then directs the names of all "the Bishops of the Pro- testant Episcopal Church in the United States," with the exception of any who may be directly related to the accused, to be placed in a vessel, and eleven of them to be drawn. From the names drawn the accused and the Church Advocate may alternately strike off one till the number of persons is reduced to seven. These seven persons, or the majority of them, constitute the Court for trial. Their decision, with the record including all the evidence, must be sent to the General Con- vention, and the entire House of Bishops, by a majority of the whole number entitled to seats, may remit or modify the sentence. Thus it is to be observed that in the case of a Bishop, as of a Priest or Deacon, there is no regular appeal from the Court of first instance on questions of theology, law, or fact ; the diocesan Bishop meanwhile having control over the severity of the sentences of the Court which tries a clergyman, the House of Bishops having control over the severity of the sentences of the Court which tries a Bishop. Sec. 7.] Eccl. Jurisdiction in United States. 195 It is also further to be observed, that the tribunals are composed, in all the three cases above detailed, exclusively of Ecclesiastics. No layman is a member of any of them, the first being composed of five Presbyters, the second of the House of Bishops, the third of seven Bishops. Indeed, so jealous is the Ecclesiastical system in the United States of America in this respect, that although it is provided that the Court of Bishops may be attended by "lay advisers" of the "profession of the law," yet questions "theological" are specifically excepted from those which may be subjected for their opinion. And even should there be a doubt whether a question is "theological" or not, it must be decided by a majority of votes of the Court that it is not so, before the opinion of the lay advisers can be invoked. This fact is commended as well worthy of consideration by those who defend the constitution of our Final Court of Appeal in Ecclesiastical Causes. As regards misdemeanours cognizable, and penalties inflicted by the Ecclesiastical tri- bunals above detailed, the Canons of the General Convention have provided that all the Clergy shall be amenable for offences which may be divided into three classes, — 1. Here- tical Teaching, 2. Immorality, 3. Irregularity. The punishments imposed are also of three degrees of severity,— 1. Degradation, 2. Suspension, 3. Admonition. Sup. p. 192. Sup. p. 193. Sup. p. 194. Digest, Tit. ii. Can. 9, § 6 (13). Ibid. Digest, Tit. ii. Can. 2. 196 Eccl. Jurisdiction in United States. [Ch. XII. These Ecclesiastical tribunals have no authority from the law of the land, such civil authorization of course existing only where there is a connexion between Church and State. They cannot therefore obtain aid from the secular power, either for securing the attendance of witnesses on trial, or for directly enforcing sentences when pro- nounced. The only coercion they can use is such as voluntary societies can exercise under the Common Law, viz., 1. Exclusion perpetual, 2. Exclusion temporary, 3. Rebuke; punish- ments described in theological language by the terms above specified, 1. Degradation, 2. Suspension, 3. Admonition. However, though there is no Spiritual Appeal Court in the " Protestant Episcopal Church in the United States," yet it is in- teresting to inquire how the decisions of Ecclesiastical tribunals there are treated in cases when their judgments entail judicial proceedings before the Civil Courts. The public law there looks upon Eccle- siastical Courts as tribunals established only by voluntary societies, and holds their autho- rity to be merely such as the rules and usages of the society which establishes them confers. If a member of any voluntary society has suffered in reputation or property by its acts, in such sort as to entitle him to damages, he can bring his action in a Civil Court for com- pensation. His suit may be for violation of Sec. 7.1 Eed. Jurisdiction in United States. - 1 • 197 contract, for recovery of debt, or for a tort, i. e. loss in property or character. The pro- ceedings may be taken against the whole body or against individual members of the society, but in any case, both plaintiff and defendant are alike held bound by the rules of the society to which they belong, so long as those rules do not contravene public law. All therefore that the Court has to do is to determine whether, according to such rules, the contract is violated, the debt due, or the tort un- justifiable. The principles adopted in Ecclesiastical cases by the Civil Courts are precisely ana- lagous to those which prevail in respect of Clubs and all other voluntary societies. For instance, if a member is dismissed by the de- cision of a tribunal within the society, he may bring his action at law because he loses an interest which has an appreciable value. The questions for the Civil Court are — (1) Had the tribunal jurisdiction over the case by the law of the society ? (2) Did it, in exercising this jurisdiction, proceed according to that law ? (3) Where there was no specific rule touching the case, did it proceed reasonably, fairly, and in good faith ? If these points are decided in favour of the society as defen- dants, the Court will look no further. It will not re-examine the merits of the case itself ; for the plaintiff, in joining the association, agreed to the jurisdiction which has given 198 Eccl. Jurisdiction in United States. [Ch. XII. • judgment. The law of the society, if not contrary to public law, is assumed to be the law for the case, and the only question is this, — Did its tribunal decide in accord- ance therewith ? So, if a Presbyter is degraded, or suspended, or admonished, he may bring his action at law for damages, for thereby he loses his parsonage or his income, or at least suffers in reputation. If the Ecclesiastical tribunal or the officer who sentenced him had not authority by the constitution of the Church, or inflicted a punishment not warranted by the law of the Church (and here unwritten law and esta- blished usages are included with written law), or acted in bad faith, they are liable, and can be compelled by legal process to reinstate the plaintiff if degraded or suspended, or to pay him damages for injured reputation if admo- nished. On the other hand, if the penalty inflicted should appear to have been in all respects warranted by the law of the Church, the secular Court will uphold it, the Court having satisfied itself on the only point into which it will inquire, i. e. whether the proper tribunal proceeded regularly. On the foregoing principles the Civil Courts in the United States sustain by their judg- ments the faith of each religious society as that society holds it, so it be not contrary to public law and decency. Iney do not inquire what is or is not orthodoxy, but Sec. 7.] Eccl. Jurisdiction in United States. 199 what does the society in question hold to be orthodoxy ? Thus a Civil Court would uphold on the same day a Presbyterian tribunal in punishing a minister who en- forced the necessity of Episcopal ordination, and an Episcopal tribunal in punishing a clergyman who denied the value of that ordinance ; a Unitarian society in punishing a teacher who maintained the doctrine of the Trinity, and a Trinitarian society in punishing a preacher who opposed it. Consequently, so long as the authorized tribunals of any religious society in the United States of America proceed fairly ac- cording to their own law, so it be not con- trary to public law, the Civil Courts will sustain their decisions. And it is here worthy of observation, that this principle of equal justice is also adopted in this country with respect to all religious bodies what- soever except one. That solitary exception is remarkable, being none other than the Church of England. p 200 Principles governing Ecclesiastical Appeals. CHAPTER XIII. POSSIBLE REMEDIES FOR THE DISORDERS IN OUR ECCLESIASTICAL APPEAL SYSTEM. 1. General principles governing Ecclesiastical Appeals. — 2. A new and strange principle introduced here by Establishment of the Judicial Committee of Privy Council. — 3. Question of Royal Supremacy not involved in present argument. — 4. Principles hitherto governing Secular Courts here when dealing with Spiritual Questions. — 5. " Caique in sua arte credendum," a principle generally adopted in our Jurisprudence ; in questions of Foreign Law ; in questions of Domestic Law. — 6. This prin- ciple ignored by the Judicial Committee of Privy Council. — 7. Application of this principle to the case before us suggested. — 8. Method of application. — If a "grave cause," a Provincial Synod to be consulted; if not a "grave cause," learned Divines to be consulted. — Mode of their appointment. — 9. Sum- mary of suggestions. i. General I N the last chapter we have vern^n P i e Efc°L Seen m ^ G CaSeS °f Countries Appeals. differing so widely, both in their ecclesiastical and constitutional polity in other respects, as Greece, Russia, Belgium, France, Scotland, and the United States of America, that there is at least in one point a unanimous agreement ; and that is to confine Spiritual issues in last resort to Spiritual Tribunals. For even if under some circumstances modifications of their sentences are there effected by the inter- Principles governing Ecclesiastical Appeals. vention of the Civil power, yet such remedies must be sought on the ground of political wrong or civil injury : no theological ques- tion can be remitted for arbitration to a Secular Court. This is the principle, under whatever different forms it may appear in different countries, which unmistakably per- vades the legislation of civilized Christen- dom. This same principle prevailed in England down to the years 1832-3, and until the unhappy legislative blundering of that time uprooted the very foundations of our own venerable jurisprudence. For until that date, however strangely blind many per- sons seem to be to the fact, however un- willing they may be to be assured of it, or however obstinately and persistently they may contradict it, yet the principle that the Civil Courts could not try theological issues was constantly and most firmly maintained in this country. The general restraint upon them in this respect, as distinctly affirmed — in language quite unmistakable — by our greatest text writers ; and, further, the particular disabilities imposed on the Com- mon Law Courts, in the matter of prohi- bitions against ecclesiastical sentences, as abundantly detailed in authorized national records, all teach the same lesson. Nor was this principle, before the modern intrusion of the Judicial Committee of Privy p 2 201 Coke, 5 Rep. 2 Inst. p. 321. Blackst.Comm. 1. 389. Vid. sup. pp. 148-150. 2 RolL Rep. 439. 1 Bulst. 159. 2 Lill. 386. 202 Sup. pp. 62, 63. Sup. p. 4. Pari. Pap. 322, Sess. 1850. Bccl. Judg. lutroduc. xlvi. Ref. Leg. Tit. App. cxi. A new and strange Principle. [Ch. XIII. Council into Ecclesiastical jurisdiction, really breached by the existence of the Court of Delegates, because that tribunal, according to the intention of its original foundation, was not a Civil Court at all, but a purely Spiritual one, as has been shown above. For whatever mistakes in constituting that tribunal may, through lapse of time or ignorance of the recorded object of its founders, have occurred on three, or at the most, four occasions, yet it is quite clear that it was originally intended that this Court, when summoned to hear Spiritual Appeals, should consist of three or four Bishops, and of them only. And mistakes subsequently made in particular cases cannot be properly said to affect the principle of its original foundation, or of its proper con- stitution. Thus the Parliamentary inves- titure in 1833 of the Judicial Committee of Privy Council, a purely Secular Court, with au- thority in final resort over Spi- ritual questions- — unintentionally and with- out observation — introduced a discordant element into our legal system. An era was then inaugurated in our legislation which has created a strange and anomalous jurisdiction, not only unsupported by one worthy example in this or any other European nation, but absolutely antagonistic to the first principles 2. A new and strange princi- ple introduced here by esta- blishment of the Judicial Committee of Privy Council. Sec. 3.] Question of Royal Supremacy. 203 of Ecclesiastical authority and of civilized jurisprudence, as adopted and maintained in both hemispheres. For if we would arrive at any due ap- preciation of the subject before us, this fact should be distinctly and unmistakably realized ; — that in the present gradation of Ecclesiastical Appeals in England, the Spiri- tual jurisdiction ends with the Archbishops' Courts. And this is a fact which cannot be reasonably disputed, when it is remembered that the Judicial Committee of Privy Council, as established by Act of Parliament alone, is by the general law a purely Secular Tribunal, not one single ecclesiastic being a member of it. The Spiritual jurisdiction consequently ending with the Archbishops' Courts, all ulterior judicial proceedings must be looked on as stamped with a civil character; and consequently they ought to be regulated, which they are not, in ac- cordance with the principles recognized by general consent among civilized nations, as governing the relations between Spiritual and Secular jurisdictions. „ rt „ For it is utterly outside the 3. Question or * / _ Royai Supre- compass of the subject-matter of voived In pre- this argument, and indeed it is sent argument. quite ^ ^ introduce iuto ft any questions connected with Royal Supremacy or Prerogative. This is, doubtless, a very favourite method with some, but it is trifling 204 Question of Royal Supremacy. [Ch. XIII. 3 & 4 Will. IV. 41. with serious matters to adopt it. The esta- blishment of the Judicial Committee of Privy Council, a Court of Laymen, by Parliamentary authority, as a statutable tribunal, and the withdrawal by law of the Sovereign's power to appoint a Court of Delegates, has wholly removed our subject from such a region of inquiry. The argument does not now lie as between the Church and the Crown, but as between the Church and the Imperial Legis- lature. And if any reader should feel disposed to complain that in these pages no attempt whatever is made even to approach any arguments which might be raised on the theory of Royal Supremacy, or on the fact that the Sovereign is by law Supreme Governor of the Church of England, he must be pleased to remember that so far as the jurisdiction of the Court is concerned, the Statute of 1833, which created it, has rendered all such considerations wholly superfluous. For the hazy and mysterious fictions with which this Court, the creation of an Act of Parliament, is pleased to sur- round itself, afford no reasonable ground either for argument or reply. Moreover, in any remarks hereafter to be made on pos- sible improvements in the practice of this Court, it will be presumed that its present authority, from whatever source derived, is to remain as it now exists. And suggestions will be made, not for any alteration in its Sec. 4.] Principles governing Secular Courts. constitution, but for regulating its methods of proceeding, and for supplying the best means of qualifying it for the due exercise of its present legal jurisdiction. 4 Principles Viewing, then, the Judicial hitherto go- °' _ verning Secular Committee of Privy Council as a when dealing Secular Court, empowered by questions"' 11 " 1 statute to control Ecclesiastical sentences, the proper object of inquiry is to discover the best method of applying to its action those principles which, under like cir- cumstances, have until lately prevailed in this land, and still prevail universally elsewhere. Now the principles which have aforetime governed the action of Secular Courts in relation to Spiritual questions are distinctly laid down by Coke, Blackstone, and other authorities. "Without now repeating at any length what has been detailed above, and to which the reader is referred, it may be said generally that nothing can be more distinctly affirmed in the annals of our national juris- prudence than that Secular Courts cannot decide on Spiritual questions, and con- sequently the course which they have to pursue, when such matters incidentally come before them in legal contentions, is precisely defined. They are not themselves to deter- mine "Schisms and Heresies;" but when a plea involving such subject-matter is as- signed, it has been ruled in the words of Coke, that " it must be alleged in certain 205 Vid.Argument, Court Q. B. June 11, 1850. Sup. pp. 148-150. 5th Rep. 206 Comm. 1, p. 389. Specot's case, Coke's 5th Rep. Gorham v. Bp. of Exeter. Practice in this respect. [Ch. XIII. to the intent that the King's Court may consult with Divines to know whether it be Schism or not :" or, to use the words of Blackstone, " the Court, upon consultation and advice of learned Divines, shall decide its sufficiency." Practice in this And this is not a mere matter of respect. theoretical law. The course above laid down has been resorted to in practice. As examples, an ancient and a modern case may be quoted. In the first case, a clerk, named John Holmes, was presented to the Church of Tetcott, in the diocese of Exeter : the Bishop of that day refused to institute him; on which the patron, one Specot, entered an action against the Bishop in the Court of Queen's Bench. In his de- fence, the Bishop pleaded that Holmes was schismaticus inveteratus. That plea was admitted as. sufficient, if true; but, the Court holding itself to be no judge of heresy, judgment was entered that there should be " a writ to the Archbishop," who was to certify whether Holmes was schismaticus inveteratus or not. The second case is one quite of modern date. On the 11th of June, 1850, a writ was issued from the Queen's Bench, and directed to the Archbishop of Canterbury, requiring him to cite certain persons, and after inquiry, to certify to the Court upon a question of false doctrine alleged in a plea which had been there put Sec. 5.] Cuique in sua Arte Credenclum. 207 5. Cuique in sua arte ere- dendum, a priuciple gene- rally adopted in our juris- prudence. in. Tims, when Spiritual questions come before Secular Courts, the principle of pro- ceeding, as commended in our national juris- prudence, is not only distinctly established in theory, but has been illustrated by practice. The principle is simply this, that in questions of doctrine the Secular Courts are to certify to Divines to say whether the opinions in question are false doctrine or no. Not to dwell here on any of those reasons for such a course which may be drawn from higher considerations, and to which the reader's attention was before di- rected, he may fairly be requested now to remember that this same principle of sub- mitting questions to those who may be pre- sumed to be best able to deal with them, pervades the whole body of our national jurisprudence. Cuique in sua arte credenclum is a legal maxim exercising the widest possible in- fluence, and illustrated by the most manifest results upon the course of all our legal pro- ceedings. For there is a general rule of procedure common to all our Courts — that the opinions of experts should be received as evidence as to the facts of their science. And this rule not only embraces questions of physical science, but reaches to those which involve the interpretation of any law Sup. pp. 93—97. Lord Denman, judgment, Court Q. Ik 208 In questions of Foreign Law. [Ch. XIII. Lord Langdale. with wliich a Court is presumed to be un- familiar. in questions of And, further, this principle is not foreign law. restrained to obtaining evidence of unwritten law ; it extends to written law also. And those familiar with it are looked upon as experts, capable not only of stating the terms in which it is expressed, but of setting forth its results and proper effects. From the bare contents of written law, per- sons not familiar with the particular system, might be misled ; and so the witness is called upon to say what conclusions really do result from the written record. This principle is rigorously applied when questions of foreign law arise before English Tribunals. The intention of such law must be proved, like any other results of experience where know- ledge is not imputed to the judge, as facts are proved by sufficient evidence, — i. e. by witnesses qualified through study, experience, practice, and consequent knowledge, to state not merely the words in which the law is expressed, for the production of the instru- ments themselves would avail for that pur- pose, but further to advise as to what is the right interpretation of those instruments, and the real meaning and due effect of them as applied to the case in hand. In fact, the principle and the practice pur- sued is precisely the same in our Courts, whether the question is one of science, as of Sec. 6.] Principle ignored by Jud. Committee. 209 chemistry, or mechanics, or is one of foreign law. The evidence on which they proceed is the information given by persons learned and experienced in the several particulars, in questions of lt is further to be observed that domestic law. tliis maxim, Guique in sua arte cre- dendum, not only governs the proceedings of our Courts as regards questions of physical science and of foreign law, it pervades the whole system of our jurisprudence as regards the different branches of our domestic law. If in a Chancery Suit a disputed question of Common Law should arise, it is the practice for the Court of Chancery either to direct an action to be tried in a Common Law Court to settle the doubt, or to order a special case to be stated and sent to a Common Law Court, with a view of obtaining its opinion on the point raised. The same principle of obtaining assistance from quarters supposed capable of supplying it is adopted by the High Court of Admiralty. When questions are there raised which have to be determined according to the rules of nautical science, elder brethren of the Trinity House, as being skilled in maritime affairs, are called in to assist the judge, and, by their opinion and counsel his decision is governed. 6. This princi- It may perhaps be said, but it the!fndTcki by can only be colourably said, that Priv^councii ^ e P rmc ipl e now under con- sideration is adopted in the con- 210 Application of this Principle [Ch. XIII. Sup. pp. 7, 8. Williams i\ Bp. of Salisbury, Wilson v. Ken- dall, Feb. 8, 1864. stitution and proceedings of the Judicial Committee of Privy Council, for that the Archbishops of Canterbury and York, and the Bishop of London, have from time to time been found sitting at that tribunal. Their presence, however, is a mere delusion. For first, as regards the constitution of the Court, no one of those Prelates has any place there at all by the general law ; and, secondly, as regards the proceedings of the Court, when they do attend, under some special circumstances above detailed, this principle, Cuique in sua arte credendum, seems to be but slenderly regarded. For, in a late case, as before stated, so far from the opinions of our two Metropolitans being at all respected, their formal dissent from the conclusions of the Court stands recorded in the judgment de- livered as expressive of the whole amount of influence conceded to their authority. „ . .. The foregoing; glances at the law 7. Application o o o of this princi- anc j practice of other nations re- ple to the case . ' . . . before us sag- spectmg Spiritual judgments, and at the principles governing our own law and practice here, in every other case whatsoever, save and except that solitary one under consideration — which is indeed a positive affront to those principles — may serve to suggest a simple and effectual remedy for the disorder. That remedy would be this, — that the Court, as being a Secular Court, should, when a Spiritual question is raised Sec. 7.] to the Case before us. 211 before it, refer that question, as every other Secular Court in this country would be bound to do, to Spiritual authority; and that the answer of such Spiritual authority should be received as evidence of what the law of the Church of England is on the subject. Indeed, among the eminent persons composing this tribunal are always found judges of our other Secular Courts ; and it is really very hard to see why this Court should not adopt the same method as that which governs the proceedings of all the others ; or how the very same men, when sitting in Downing Street, can, with any propriety or any satis- faction either to themselves or other people, wholly abandon the fundamental principles of jurisprudence, and the immemorial system of practice which would necessarily guide them if sitting in Westminster Hall. If a judge in Chancery willingly refers to a Com- mon Law Court on a question of Common Law, one cannot easily imagine why the very same person should feel any considerable repugnance to refer to Divines on a question of Divinity. It would be indeed an ill com- pliment to his professional acquirements, to suppose him less qualified to form an opinion on a question of Common Law than on a disputed point in the abstruse science of Theology. Nor as a matter of fact can it be reasonably argued that this Court does not stand in need 212 Application of this Principle. [Ch. XIII. Hans. 3 S. vol. cxi. p. 633. of external assistance. Lord Brougham, who presided over it for seventeen years, declared himself, that " in some cases he required the aid of a Spiritual body in forming his judg- ment. He had felt the want of it . . . severely." It may perhaps be supposed by some, that all educated members of the Church of England have a competent know- ledge of her doctrines, and that this would emphatically be the case with persons so learned as those who constitute this tribunal. It is, however, to be remembered that the science of Theology is one which requires special application and thought; what would appear the mere alphabet of the science to those who are versed in it, is by no means familiar to those whose studies have not lain in this direction ; and, further, that in causes coming before this Court, questions of Spiri- tual learning are continually raised by no means easy of solution, even by those who have devoted their whole lives to the subject. And above all, it is to be borne in mind that the Court is not necessarily composed of members of the Church of England, but that the judges who constitute it may possibly be all dissenters from her doctrine and discipline. The question of course arises — to what authority could the Court satisfactorily refer matters of doctrine and Spiritual learning coming before it, for answers which might be received as evidence in the case ? and while Sec. 8.] Method of Application. entertaining this question, it should be borne in mind that other Secular Courts, as before stated, are directed to make such reference, either by " a writ to the Metropolitan," or by " consultation and advice of learned Divines." 8. Method of In pursuing this inquiry some application, guidance may be obtained from the code designated " Reformatio Legvm" which, though never finally legalized, was con- structed under the powers, and in accordance with the contents of that very same Statute which at the time of the Reformation first gave Appeals from the Archbishops' Courts to the Crown, and so inaugurated that juris- diction over Ecclesiastical Tribunals which was by a legislative blunder transferred to the Judicial Committee of Privy Council, and is now exercised by that Court. In that code it is recited, in the case of any Appeal lodged with the Crown from an Archbishop's Court, that the cause if a " grave" one should be concluded by a " Provincial Synod," or if not a "grave" one, by "three or four Bishops" to be appointed for the purpose. Nothing can be more consistent with Ecclesiastical order and the practice of primitive antiquity, than that in a " grave cause" a Metropolitan's judgment should be thus subordinated to that of his Provincial Synod. As regards the other alternative so much cannot be said. But still, if the cause were not a " grave one," the subjection of an archiepiscopal 213 Sup. p. 205. Coke 2 Inst. 632. Blackst. Com. vol. i. p. 389. Coke 5 Rep. 58. Sup. pp. 60,61. 25 Hen. VIII. 19. Ref. Leg., Tit. De Appel. cxi. 214 Method of Application. [Ch. XIII. judgment to the review of three or four Bishops, might not perhaps be considered to raise any very considerable cause of com- plaint. But however this may be, the principle above mentioned, as laid down at the Re- formation for the decision of Appeals from the Archbishops' Courts when referred to the Crown, does at any rate indicate a course which might be reasonably pursued, and with very satisfactory effect, now that such Ap- peals by subsequent legislation have been transferred from the Crown and submitted to the jurisdiction of a fixed Secular Tribunal. In order, then, to carry out the original in- tentions which underlay the assignment of Final Ecclesiastical Appeals at the Reforma- tion, and the principles of our national juris- prudence which have always prevailed in our Common Law Courts, the Judicial Committee of Privy Council, when Spiritual issues have to be decided, might certify — (1) if it were a "grave cause," "by a writ to the Metropolitan," to the Provincial Synod or Convocation of the Province wherein the cause arose ; or (2) if it were not a " grave cause," to "three or four Bishops," or at least to some body of learned Divines, — in order to be supplied with evidence of the doctrine of the Church of England on the points raised in the case. And thus not only would the principles formally recognized and con- Sec. 8.] Provincial Synod to be Consulted. 215 siderately adopted when Appeals by Statute were first given from the Archbishops' Courts be maintained inviolate, but the practice would be respected and the method imitated which govern the proceedings of all our other Secular Tribunals when the Law Divine comes into question before them. And, still further, some harmony would be established in this respect between our own jurisprudence and that which is universally adopted by other Christian nations, if a "grave I n * ne case °f a " grave cause," cause " a Pro- ^hat j g Qne m which an important vincial synod r to be consulted, question of doctrine is raised on appeal from an Archbishops' Court, it cannot, I think, be doubted by any one at all versed in ecclesiastical history, that it would be in strict accordance with those Apostolical and primi- tive principles on which the English Church is founded, to refer from a Metropolitan Bishop to his Provincial Synod, as being the Spiri- tual authority next in gradation above him- self. And Apostolical principles are here ap- pealed to in contradistinction to Patriarchal principles on the one hand, and Hilde- brandine principles on the other. For though the Church of England has esta- blished no individual Spiritual authority superior to that of a Metropolitan, who is the Primus inter pares among the apo- stolical band of his Provincial Bishops, and the representative of such primacy as S. Q 216 Mosheim Eccl. Hist. App. I. vol. vi. pp. 59, seq. Acts xv. 6 -29. 25 Hen. VIII. c. 19. Ref. Leg. de Appell. c. xi. If a " Grave Cause;' [Ch. XIII. James, the first Bishop of Jerusalem, exercised in that primaeval Bee of the Christian Church, and is the inheritor of such authority as was conceded to that chief Apostle in the first Council of which sacred history gives any detailed account, — the Coun- cil of Jerusalem, the true pattern for future Synods, precisely described and providentially handed down in the pages of Holy Writ itself for imitation in succeeding generations — yet still a Metropolitan's individual authority, in accordance with the unalterable principles of the Church in every age, is of course sub- ordinate to that of his Provincial Synod. In the case, then, of an Appeal here from a Metropolitan's Court, if the cause were a " grave" one, it would seem an unex- ceptionable method that the Tribunal of last resort, being a Secular one, should obtain from the Synod or Convocation of the Province in which the case arose — as being a Spiritual authority superior to the Metropolitan him- self — evidence of the doctrine of the Church of England on the points disputed. Such a course would be in strict accordance with the principles which underlie the foundations of our National Church, one of provincial organization, and also with the real intentions of our reformers when Ecclesiastical Appeals were first referred to the Crown. Nor does the very modern transfer of those Appeals to a fixed Secular Court render such a course a Sec. 8.] Provincial Synod to be Consulted. 217 whit less desirable ; on the contrary, it makes it the more imperative. No one can, of course, be blind to an objection which may here be taken to the course laid down in the " Reformatio Legwn." It is this — that as there are two Provincial Synods in England, the reference on a matter of faith in a " grave cause" might be either to Canterbury or York, according to the locality in which the question at issue first arose, and so that two different bodies might be consulted in final Appeals, and that unity might be thus imperilled. But upon con- sideration this objection does not appear overwhelming. For it may be answered, first, that such resort to Provincial Synods is of the very highest antiquity, and can boast of the most venerable lineage. Secondly, that the Synods of Canterbury and York have time out of mind acted in the most loving con- cord, and that to their harmonious agreement and conjoined authority may be referred our whole Ecclesiastical fabric. The rejection of the Papal supremacy, the Articles, Canons, and the Liturgy of the English Church, these are the great abiding monuments consecrated to the regards of this nation by the undivided concord and united labours of our Provincial Synods or Convocations. And in the case of a "grave" question touching the common faith being submitted to either of those Synods by the Judicial Committee of Privy Council, it Q 2 (Ec. Cone. Constant. Can. 6. Cone. M. B. iii. 769. Ibid. iii. 782. Card. Syn. 1. 53. Cone. M. B. iv. 379. Ibid. iv. 428. Ibid. iv. 566. Syn. Ang. ii. 95, Nicholl's Pref.pp. x. xii. 218 If a " Grave Cause;' [Ch. XIII. Cone. M. B. i. 325. Ibid. i. 363. Wake's App. 240. Cone. M. B. iv. 568. is but reasonable to suppose that joint con- sultation would in some way be taken before a reply was returned. The methods adopted for such joint con- sultation have been in past times various, but have contributed to the happiest results. Sometimes our Provincial Synods have been united into one body; sometimes drafts of instruments have been transmitted from one to the other, and thus have been ratified by both ; sometimes proxies have been sent from one to the other with power to act for the Synod deputing them ; and sometimes joint committees for the settlement of business have been appointed, — a course which in our own time has been attended with very bene- ficial effects, as all those engaged would be willing to testify. Such considerations and such precedents go far to take the edge off the objection above suggested, if they do not prevail entirely to remove it. For such reference from the Judicial Com- mittee of Privy Council as that now under consideration, there is this recommendation, that the machinery is always ready. There is no necessity for constituting any new body ; the two Convocations, in their present con- dition more venerable from their antiquity than any other institution of which this land can boast, being in existence. And surely, for the purpose of obtaining evidence of the faith of the Church of England on any par- Sec. 8.] Provincial Synod to be Consulted. 219 ticular point under discussion, no authority can be reasonably considered more unimpeach- able, or ought to be held more conclusive than theirs. At any rate, the nation has hitherto been willing, and at this hour is content, to accept the National Confession of Faith, — the Articles of Religion, — and the National Manual of Devotion, — the Book of Common Prayer, — as constructed and commended for adoption by their original authority. This fact no man of competent knowledge and of reason- able good faith will, on due consideration, pretend for one moment to deny, though perhaps by far the greater number of educated people have never even contemplated it. As a nation we are by no means prone to investigation of causes, principles, and originals of what lies before us ; we are mostly satisfied with effects and results. And if the conviction of the poet of Imperial virg. Georg. Rome is well founded, that happiness consists in discovering the originals of things, then that certainly is an element of human felicity to which comparatively few among us even aspire. How many men receive with un- wavering fidelity and proclaimed satisfaction the English Articles as an expression of National faith, the English Prayer Book as the guide of public devotion — present pos- sessions to them of undoubted value and of unquestioned authority — and yet never bestow a moment's thought on the original source 220 If a" Grave Cause;' [Ch. XIII. Card. Syn. i. 34. 53. Cone. Mag. Brit. iv. 566— 56S. Syn. Ang. ii. 95. whence these are derived, nor on the original authority which has commended them for acceptance. Yet it is to the authority of our Provincial Synods or Convocations that the original creation of those expressions of the National Faith and of that form of public worship can alone be referred. Nor indeed could it be rightly otherwise in the case of a Church like this, which, in imitation of Apos- tolic precedent and in strict accordance with primitive example, is one emphatically of Pro- vincial organization. And so if the nation has hitherto been willing, and is now content, to concede gene- rally so large an amount of authority to our Provincial Synods or Convocations as to adopt from their hands, and to accept under their original sanction, the formal Confession of the National Faith and the Common Manual of Public Devotion — then really it seems quite incomprehensible why there should be any backwardness to commit particularly to the same authority the duty of advising how a single point - of doctrine raised on a special case should be ruled in a matter exclusively affecting the faith and worship of the Church of England. There is still a further matter for con- sideration which seems to commend the plan of referring to a Provincial Synod in the case of a point of disputed doctrine being brought before the Judicial Committee of Privy Sec. 8.] Provincial Synod to be Consulted. Council. Suppose a new heresy to be in- vented, and this is by no means an impossible supposition, in fact one inclines to the belief that it has been realized even in our own days, both on this and on the other side of the Atlantic. Now the Court has over and over again itself proclaimed that its duty is confined to the interpretation of the formu- laries ; and, admitting this to be true, winch indeed no one probably will be found to dispute — for in Lord Campbell's words, " The Judicial Committee is merely a Court of Con- struction, its duty is to explain the meaning of legal documents " — it is easy to see how a new heresy might raise its head unchecked where no formulary existed on any particular subject-matter committed to the judgment of this tribunal. The voice of a Provincial Synod is, under such circumstances, and in accord- ance with the organization and principles of the English Church, the only voice which could speak with rightful authority. And the value under these circumstances of such a reference as that before mentioned appears indisputable. Further, it is observable that such refer- ence from the Civil Power to a Provincial Synod, as suggested above and defined in the " Reformatio Legum" seems to be contem- plated by the Common Law of England. That Law is thus distinctly laid down by Coke : " If the cause ... be Spiritual the 221 Heath v. Bur- der, Eccl. Judg., pp. 224 seq. and Mormon Apostasy. Hans. 3 S. vol. cxi. p. 643. DeAppell. c.xi. 2 Inst. 632. 222 Provincial Synod to be Consulted. [Ch. XIII. Court shall write to the Metropolitan to certify thereof." In a " grave cause," however, of doctrine the Metropolitan himself alone — especially under the present hypothesis of an appeal from his own Court — cannot be supposed to be supreme. His authority in such case is subordinate to that of his Pro- vincial Synod, whose opinion it would be his duty to take before replying to the inquiries of the Civil Court. And it is further to be borne in mind that these writs from civil authority to the Metropolitans to certify on Spiritual questions are not mere phantoms of Sup. p. 206. abstract theory. Their issue is matter of practice, such writs having been directed to Coke's sth Rep. our Metropolitans on more than one occa- Court q. b. sion, and indeed in one instance at a very June 12, 1850. recent per i 0( i. This support, then, to the contents of the " Reformatio Legurn" and to the propriety of referring the matter, if it be a " grave cause," to a Provincial Synod, is supplied by the Common Law of England. And, indeed, under the circumstances of our Provincial organization in the Church of England, no more satisfactory or unexcep- tionable authority in last resort can be re- ferred to than the Provincial Synod or Con- vocation of the Province in which the dispute arose. For, say what men will, in a matter of fundamental doctrine, no final decision will ever be generally accepted with con- tentment and satisfaction but that of the Seo. 8.] Learned Divines to he Consulted. highest recognized Spiritual authority on questions of faith. Knot a "grave Tliere is > however, to be COn- cause," learned sidered the alternative course Divines to be consulted. suggested in the " Reformatio Legum" that supposing the cause not to be a " grave one," the matter should be referred from the Civil Power to " three or four Bishops." The principle here is the same as in the former case — that a Spiritual question should be referred in final resort to Spiritual authority — but the method of applying the principle is somewhat different. Yet here again this method seems to have been ac- cepted as the basis of a principle of the Com- mon Law. In confirmation of this, reference may be made to the authority of Coke, and also to that of the learned commentator on the Laws of England. We are informed by the first of those writers that " it doth not appertain to the King's Court to determine schisms and heresies," but that in such cases " the King's Court may consult with Divines to know whether it be schism or not." And Blackstone writes : " If the cause be of a Spiritual nature the Court, upon the consultation and advice of learned Divines, shall decide its sufficiency." It be- comes, then, a matter of interest to inquire how such "learned Divines," whether Bishops only, or Bishops conjoined with others, might be selected for the purpose now under view. 223 DeAppell.c. xi. 5 Rep. Ibid. Comm. vol. i. p. 389. 224 DeAppell.c.xi. Vid. sup. pp. 5, 6. If not a " Grave Cause " [Ch. XIII. It must be frankly admitted that in the "Reformatio Legum" it is suggested that the Crown should appoint the " three or four Bishops," for deciding definitely on a cause not " grave." The idea, however, of selecting persons, pro hdc vice, to try any particular case, is one no way conformable to prin- ciples of justice. This method is indeed one of the fatal vices of the present system of constituting the Court of the Judicial Committee of Privy Council ; the Lord President for the time being making a selection of members from the whole body to try each particular case. And, certainly, however firmly one may be convinced that no feeling of partisanship in such high quarters would ever affect the selection of the judges, yet it must be said that this one staring blot on the constitution of the present Court of Final Ecclesiastical Appeal — even if there were no deeper grounds of dis- satisfaction — would of itself be sufficient, even at first sight, to give most grievous offence. The mere possibility that persons of known proclivities and proclaimed bias might be selected, pro hdc vice, to try delicate and much-controverted questions in last resort, is well-nigh intolerable to those who are interested in the event. Such possibility is, indeed, fatal to a calm and contented acquiescence in any system which involves it. To the hardships and abuses which may thus Seo. 8.] Learned Divines to be Consulted. 225 arise, and of which history contributes volumes of evidence, none can be blind. As it would but perpetuate one of the gravest offences attaching to the present constitution of the Court of Final Eccle- siastical Appeal, that even in a cause not " grave," the consultation and advice of learned Divines should be secured by the choice of persons, pro hdc vice, it may not be out of place to suggest a less exceptionable method by which such selection might be made. According to the course of proceeding laid down in the " Reformatio Legum" for the cases now under consideration, the reference from the Civil Power was, as before said, to be to three or four Bishops appointed by the Crown for the purpose. And if such a body of prelates were not specifically selected for any particular case, but nominated as a standing board of reference, one great ob- jection would certainly be removed, and such a system might not be wholly unacceptable. But two points are worthy of consideration on this head. First, whether a more unex- ceptionable method of nomination, though made under the authority of the Sovereign, might not be devised than that of direct appointment by the Crown ; and, secondly, considering that the English Church, in accordance with Apostolic precedent and primitive practice, has always associated Pres- Blackst.Comm. vol i. p. 389. 226 Mode of their Appointment. [Ch. XIII. Wake's State App. 239. Card. Syn. pp. 776, 777. 818, 819. byters with Bisliops as authorities in matters of faith, whether such a board of reference should be constituted exclusively of members of the Episcopal order. Mode of their As to tlie first P° int > {t ma J be appointment. WO rthy of consideration whether, with a view to avoid the objectionable method of appointing arbiters, pro hdc vice, and also with a view to secure an unexceptionable selection of persons, the Crown might not direct, together with the writ for calling every new Convocation, a " Royal Letter of Busi- ness," addressed to each Metropolitan, re- quiring that by each Provincial Synod a certain number of members should be elected to constitute a joint Board of reference, to which the Judicial Committee of Privy Council might apply for evidence of the law of the Church in disputed questions ; such Board to continue in being during the ex- istence of the Convocation then about to be convened. As to the second point, if, for example, two Bishops were elected by the Upper House of Canterbury and four Presbyters by the Lower, one Bishop by the Upper House of York and two Presbyters by the Lower, a Board of nine members would thus be constituted, which, it may reasonably be presumed, would be tho- roughly qualified to advise on the law of the Church, and which, in assisting the judg- ments of the Judicial Committee of Privy Sec. 9.] Summary of Suggestions. 227 Council, would realize the requirements of the Common Law of England— that, when a plea in a cause of a Spiritual nature is as- signed, " the Court," in the words of Black- stone, " upon consultation and advice of learned Divines, shall decide its sufficiency;" or, when a charge of schism or heresy is made, "the King's Court," in the words of Coke, "may consult with Divines to know whether it be schism or not." 9. Summary of The following, then, as is believed suggestions. ^y. somej would be an acceptable solution of the difficulties, and a Constitu- tional remedy for the offences which attach to our present system of Final Ecclesiastical Appeals : — I. That in a "grave cause" the JudicialCom- mittee of Privy Council should " write to the Metropolitan to certify," on the authority of the Synod of the Province in which the question arose, what is the law of the Church on the point raised, such certificate to be received as evidence in the case. II. That in the case of a cause not " grave," " consultation and advice of learned Divines,'.' obtained in some such manner as that above suggested, should be had for the same purpose. Such a course as this would (1) "contravene no great principle, religious, Ecclesiastical, or political ;" (2) it was certainly contemplated in the Ecclesiastical Code drawn up under the Blackst.Comm. vol. i. 389. Coke's 5th Rep. Coke 2 Inst. 632. Coke's 5th Rep. Blackst. Comm. vol. i. 389. Eccl. Judg- ments, Pref. p. vii. Ref. Leg. Tit. De Appell.c. xi. 228 Summary of Suggestions. [Ch. XITI. 25 Hen. VIII. 19. Sup. pp. 221' — 223. 227. 2 & 3 Will. IV. 92. 3 & 4 Will. IV. 41. Sec. 3. Sec. 17. sanction of that very statute which inau- gurated and established post-reformation Appeals in this country; and (3), as above shown, it would be in strict accordance with the Common Law of England. It is by no means clear that such desired amendment in the present system might not, without any application for fresh legislation, be effectually and simply secured by an " Order in Council," issued in strict accord- ance with the terms and under the powers of the two Statutes by which the Privy Council originally, and the Judicial Committee sub- sequently, obtained jurisdiction over Eccle- siastical Appeals. The first of those Statutes enacted that such Appeals should be made to the King in Council, " subject to such rules, orders, and regulations, for the due and more convenient proceeding .... as his Majesty, his heirs, and successors shall from time to time, by Order in Council, direct." The second enacted that " it shall be lawful for the said Committee to refer any matters to be ex- amined and reported on . . . .to such .... person or persons as shall be appointed by his Majesty in Council." Thus, it seems that, under the express terms of the Statutes which inaugurated and established this Tribunal, an amendment in its method of procedure and in the direction above indi- cated might be secured simply by an Order in Council, and without fresh legislation. Sec. 9.] Summary of Suggestions. 229 But whether this course could be consti- tutionally adopted or not, it can hardly be denied with reason that measures of some sort ought to be taken for removing from our present Judicial system a just cause of offence to the National Church, and a mani- fest and most unseemly blot on our National Jurisprudence. 230 Conclusion. CONCLUSION. In conclusion, it is desirable to advert to one or two matters suggested for general con- sideration by the subjects treated of in the foregoing pages. (I.) One serious impediment in the way of obtaining an amendment in our present system of Ecclesiastical Appeals arises from a grave misapprehension. It is by many persons quite erroneously imagined, that such grievances and anomalies as attend the existence and action of the English Court of Einal Appeal in Ecclesiastical Causes are inseparable from the condition of a Church established by law. It is supposed that if the State chooses to adopt any particular form of religion, it will of necessity reserve to itself the power of deciding on disputed points connected with that religion in last resort. And this erro- neous supposition has perhaps been not a little fortified by a suggestion which has been made by an author of repute, that if the greater authority is conceded to the State of deciding generally what shall be the esta- blished religion of the nation, the lesser Conclusion. 231 authority of deciding particularly any single point of belief connected with the form of religion so selected, cannot with any reason be withheld. In fact, the argument shortly amounts to this, that it would be a contra- diction to concede to the State authority to decide on the adoption of a whole system of faith and morals, and at the same time to deny it authority to decide on any separate part of that system in detail. But, upon consideration, such reasoning appears wholly fallacious. When the State selects for the instruction and guidance of its subjects, in matters beyond all others of the highest importance, a system of religion which existed long before the State itself had any being, it must fairly be presumed that the principles of that religion are the attractions which have secured for it this special prefer- ence and regard. And the fundamental prin- ciples of the Christian religion are, that it is a system of Divine, not of earthly origin; that the Church is a kingdom " not of this world," but endowed by her Lord with gifts from above. Consequently, she never can be presumed, from the very elements of her original foundation and continuing existence, to be, I will not say willing to accept, but to be capable of accepting judgments external to herself in Spiritual matters or in regard to Divine Truth. It is thus manifest, when the State adopts the Christian Church as the R 232 Conclusion. established form of religion, that it must, if any lasting alliance is to be maintained, leave the Church, in words which are consecrated over and over again in the records of our own country, " free in her judgments." In truth, to pursue any other course is to assault the fundamental principles of her inmost being ; those very principles which it must fairly be presumed have commended her to the adoption of the State as the best engine for the instruction and improvement of its subjects. Though it thus appears quite impossible, from such considerations, that the Church of Christ can ever willingly consent permanently to be subject to any authority external to herself in the decision of Spiritual questions, yet it is doubtless not only quite possible, but quite necessary in some cases, that authority in matters of religion should reside in the State itself. It must, for instance, be so, where the Church and the State are iden- tical, as in modern Rome. It must again be so in such a case as that of ancient Rome, where polytheism was adopted as the State religion, where the worship of many gods was established, and where the multiplied objects of adoration were but the impersona- tions of the heroic virtues, or, alas ! of the debasing vices of humanity. These were severally nothing more or less than the reflexes of popular opinion, which could only properly Conclusion. 233 be expressed under the control of a depart- ment of the State in such a case justly claiming to direct all the national manifes- tations of public devotion, with their accom- panying rites and ceremonies. But it must be clear to the most super- ficial observer that this cannot be so in the case of any religion whatsoever which is founded in the belief of a revelation or of a mission from above, when that religion is connected with a State which neither claims nor even pretends to any such authority itself. Then such concessions cannot be made to any secular authority, be it what it may, confessedly deriving its existence from human arrangement and human will only. And if this is generally true, most emphatically is it so in the case of the Christian Church, for reasons which have been above detailed at length in these pages. Nor, as a fact, as has been before shown, does the secular power in any Christian country except our own — and, indeed, from this exception we must exclude Scotland — interfere with judgments purely spiritual. To adopt the words of Milton in reference to this subject, — " To know Both Spiritual power and Civil— what each means, What severs each," — This is a grade of knowledge attained by all civilized nations except England. R 2 234 Conclusion. (II.) Another impediment in the way of arriving at a satisfactory arrangement of the matters above treated arises from the con- fusion -which exists in many minds between the separate functions of Synods and Courts. The distinctions, which are really very plain in respect to this subject, are so commonly and so strangely overlooked, that one may hope to be pardoned for stating here a palpable truism, viz. that while it is, on the one hand, the duty of Synods to constitute Ecclesiastical law, and to define articles of Christian faith, it is the duty of Courts, on the other, merely to interpret law already made, to adopt definitions of faith already settled, and then to apply each to particular cases as they may arise. Courts neither enact laws nor define articles of faith ; Synods rightly do both. And one ventures to hope that some circumstances of the present times will plead sufficient apology for a public state- ment of such notorious, simple, and incontro- vertible facts. There is another distinction between Synods and Courts which is very insuffi- ciently apprehended, and the disregard of it has introduced much confusion. Synods sometimes try opinions only, without refer- ence to particular persons ; Courts always try persons. Judgments of/ Synods are some- times directed against the opinions of a person who may reside outside their territorial juris- Conclusion. 235 diction, or who may have long since passed out of the world ; as, for instance, was the case with the tenets of Origen, which were condemned by the Fifth (Ecumenical Council three centuries after their author's death. The judgment of a Court, on the other hand, is necessarily directed against a particular person, and is confined to a particular terri- torial jurisdiction. In the one case the opinion, in the other the person, is submitted to the judgment of the tribunal. In the one case the opinion is charged as the offender; in the other the man. It is needless to follow into detail the distinc- tions hence arising, or the many differences of practice and procedure in synodical and in curial trials necessarily resulting. It may suf- fice here to point out that an opinion can nei- ther retract nor explain itself. It challenges the judgment of a Synod for conviction as an offender or for acquittal as innocent in the very words in which it is expressed. On the other hand, a person may retract or explain. Both courses are open, and either may have its effects on the judgment of a Court. A Court's duty is to discharge a man, however blameworthy his opinion, if it is retracted; a Synod's, to condemn a false opinion, without reference to the man. These simple prin- ciples, confirmed by the experience and prac- tice of past ages, appear very plain when stated, but somehow or other they have 236 Conclusion. strangely faded out of sight in these later times ; and from inattention to them some strange notions have become current, and some very odd propositions have been of late commended to public regards. (III.) If the common misapprehensions above glanced at were corrected, and the principles before stated were generally apprehended by the national mind, an amendment in the pre- sent system of Final Ecclesiastical Appeal would be more easily obtained. At any rate, in the lingering hope that ere long some measures with a view to removing an acknowledged grievance will be taken, the following facts are commended to the consideration of any man who has the slightest regard for the credit of the jurisprudence of his native land : — ■ First. By careless, ill-advised, and blunder- ing legislation, matters have here come to this pass, that within this realm there are by statute law at this moment five Courts of Final Appeal in Ecclesiastical Causes, viz. — (i.) The Upper House of the Convocation of Canterbury. (ii.) The Upper House of the Convocation of York. (hi.) The Judicial Committee of Privy Council. (iv.) The Judicial Committee of Privy Council, with the addition of the Archbishops of Canterbury and York, and the Bishop of London, or one of them. Conclusion. 237 (v.) The Court of Delegates in Ireland. Secondly. According to the particular cir- cumstances of each case, Appeal may be sta- tutably had to one or other of the foregoing tribunals. Thirdly. There is no provision whatsoever against conflicting decisions, or for reconciling such, should they occur. Unless convinced of it by the actual presence of the facts, one could hardly suppose that such a state of things could be allowed to continue through a single session of a civilized nation's legislature. However, if at any time our statesmen should apply themselves to this subject — and really the present anomalous condition of affairs can hardly be allowed to abide perpetual — then one of two principles must be adopted ; for the present system is founded on no principle at all. It must be distinctly determined that the final resort in Ecclesiastical Causes shall be either to a Civil or to an Ecclesiastical Tribunal. If it should be decided that such resort ought to be to a Civil Tribunal, then the French system of the " Appcl comme oVabus " will supply useful materials for study and valu- able examples for imitation. And the opinion of the late Lord Brougham — who had paid greater attention than most English states- men to the matter — delivered on the last public occasion when he addressed himself to this subject, could hardly fail of receiving 238 Conclusion. some respectful consideration. That opinion was, that the final Court should be a lay Court; but that on questions of doctrine it should refer to spiritual persons, " ad infor- mandam conscientiam. ' ' If, on the other hand, it should be decided that the final resort ought to be to an Eccle- siastical Tribunal, then such a Court must be composed of very different materials from those which constitute the body which now adjudicates in Whitehall. And, moreover, the most careful and delicate management will be required for adapting a final Ecclesiastical Court to the requirements of such a Church as this Church of England — one emphatically of Provincial organization, meanwhile com- prising separate Provinces, with Metropolitan Courts independent of each other. The latter plan involves difficulties far harder to sur- mount than the former. But whatever difficulties in either case exist, they are far less considerable than the risk of allowing the present system, or rather want of system, to continue. The nearest dangers are not always most open to com- mon view, those which are most fatal are not always most deeply dreaded, nor are those most closely impending always most care- fully avoided. Men may pass ignorantly in thoughtless security over underlying fires — " Suppositos eiueri doloso." Some fresh shock suddenly communicated Conclusion. 239 by the action of the present tribunal in Whitehall, may cause a convulsion of which none can venture to forecast the disastrous results on the Church of England. (IV.) Of the unpopular character in this day of many of the principles above main- tained, no one is more keenly sensible than the writer of the foregoing pages. No one is more fully alive to the fact that in some quarters they are the objects of silent, super- cilious contempt, in others, of expressed and open scorn. Still, they have been very widely held in ages which were certainly not less conspicuous than the present for intellec- tual power, and by men who, to say the least, were behind none of this generation in vigour, expanse, and precision of thought. If those principles are false, in holding them at least one errs in company of which no man need be ashamed. But if they are true, how- ever distasteful they may be, it never can be out of place to assert them. Indeed, the less they are regarded, the greater is the need^'for commending them to attention. It may be, perhaps it is, lost labour to do so. Still, how- ever inefficiently performed, however ineffec- tual it may prove, it has been a labour of love, to endeavour to maintain the inalienable ri«'ht of this Church of England to define her own doctrines and to guard her own Faith. And the results of that labour are now, in lowliest humility, commended to the favour of the Great 240 Conclusion. Head of the Church, who has assured us that His kingdom " is not of this world," mean- while leaving to us this Divine command : — " iicotiitc rtgo qui sunt tfa-sans (Carsari, rt |«a sunt Dei Dro." APPENDIX. APPENDIX A. In this Appendix are contained all the Acts of Parlia- ment affecting Final Ecclesiastical Appeals. I. The effects of the following Statute on Final Eccle- siastical Appeals are treated of at pp. 13, 14, sup., and in chap. III., sup., pp. 19, seq. 24 Hen. VIII., cap. 12.— a.d. 1532, o.s. For the Restraint of Appeals. Where by divers sundry old authentick histories and chronicles, it is manifestly declared and expressed, that this realm of England, is an empire, and so hath been accepted in the world, governed by one supreme head and King, having the dignity and royal estate ©f the imperial crown of the same ; (2) unto whom a body politick, compact of all sorts and degrees of people, divided in terms, and by names of spiritualty and temporalty, been bounden and owen to bear, next to God, a natural and humble obedience ; (3) he being also institute and furnished, by the goodness and sufferance of Almighty God, with plenary, whole, and entire power, pre-eminence, authority, prerogative and jurisdiction, to render and yield justice, and final determination to all manner of folk, resiants, or subjects within this his realm, in all causes, matters, debates and contentions, happening to occur, insurge, or begin within the limits thereof, without restraint, or provocation to any foreign princes or potentates of A The power, pre-eminence, and authority of the King of England. [2] 24 Hen. VIIL, cap. 12. [App. A. The power, learning-, and wisdom of the body spiritual. The form and manner of government of the estate temporal. No appeals shall be used, but within this realm. the world ; (i) the body spiritual whereof having power, when any cause of the law divine happened to come in question, or of spiritual learning 1 , then it was declared, interpreted, and shewed by that part of the said body politick, called the spiritualty, now being usually called the English Church, which alwaj-s hath been reputed, and also found of that sort, that both for knowledge, integrity and sufficiency of number, it hath been always thought, and is also at this hour, sufficient and meet of it self, without the intermed- dling of any exterior person or persons, to declare and determine all such doubts, and to administer all such offices and duties, as to their rooms, spiritual doth appertain ; (5) for the due administration whereof, and to keep them from corruption and sinister affec- tion, the King's most noble progenitors, and the antecessors of the nobles of this realm, have sufficiently endowed the said Church, both with honour and pos- sessions; (6) and the laws temporal, for trial of property of lands and goods, and for the conservation of the people of this realm in unity and peace, without rapine or spoil, was and yet is administered, adjudged and executed by sundry judges and ministers of the other part of the said body politick, called the tem- poralty; (7) and both their authorities and jurisdictions do conjoin together in the due administration of justice, the one to help the other. II. And whereas the King, his most noble pro- genitors, and the nobility and commons of this said realm, at divers and sundry parliaments, as well in the time of King Edward the First, Edward the Third, Richard the Second, Henry the Fourth, and other noble Kings of this realm, made sundry ordi- nances, laws, statutes, and provisions for the entire and sure conservation of the prerogatives, liberties, and pre-eminences of the said imperial crown of this Apr. A.] 24 Ben. VI1L, cap. 12. [3] realm, and of the jurisdiction spiritual and temporal of the same, to keep it from the annoyance as well of the see of Rome, as from the authority of other foreign potentates, attempting 1 the diminution or violation thereof, as often, and from time to time, as any such annoyance or attempt might be known or espied : (2) and notwithstanding the said good statutes and ordi- nances made in the time of the King's most noble progenitors, in preservation of the authority and pre- rogative of the said imperial crown, as is aforesaid ; yet nevertheless sithen the making of the said good statutes and ordinances divers and sundry incon- veniences and dangers, not provided for plainly by the said former Acts, statutes and ordinances, have arisen and sprung by reason of appeals sued out of this realm to the see of Rome, in causes testamentary, causes of matrimony and divorces, right of tithes, oblations and obventions, not only to the great in- quietation, vexation, trouble, cost and charges of the King's Highness, and many of his subjects and resiants of this his realm, but also to the great delay and let to the true and speedy determination of the said causes, for so much as the parties appealing to the said court of Rome most commonly do the same for the delay of justice. (3) And forasmuch as the great distance of way is so far out of this realm, so that the necessary proofs, nor the true knowledge of the cause, can neither there be so well known, ne the witnesses there so well examined, as within this realm, so that the parties grieved by means of the said appeals be most times without remedy : (4) in consideration whereof, the King's Highness, his nobles and commons, considering the great enormities, daagers, long delays and hurts, that as well to his Highness, as to his said nobles, subjects, commons, and resiants of this his realm, in the said causes testamentary, causes of A 2 The several inconvenien- cies in suing of appeals to Rome. [4] 24 Hen. VIII., cap. 12. [App. A. All causes de- terminable by any spiritual jurisdiction shall be ad- judged within the King's authority. matrimon}' and divorces, tithes, oblations, and obven- tions, do daily ensue, doth therefore by his royal assent, and by the assent of the lords spiritual and temporal, and the commons, in this present Parliament assembled, and by authority of the same, enact, esta- blish and ordain, That all causes testamentary, causes of matrimony and divorces, rights of tithes, oblations and obventions (the knowledge whereof by the good- ness of princes of this realm, and by the laws and customs of the same, appertaineth to the spiritual jurisdiction of this realm) already commenced, moved, depending, being, happening, or hereafter coming in contention, debate or question within this realm, or within any the King's dominions, or marches of the same, or elsewhere, whether they concern the King our sovereign lord, his heirs and successors, or any other subjects or resiants within the same, of what degree soever they be, shall be from henceforth heard, examined, discussed, clearly, finally, and definitively adjudged and determined within the King's jurisdic- tion and authority, and not elsewhere, in such courts spiritual and temporal of the same, as the natures, conditions, and qualities of the cases and matters aforesaid in contention, or hereafter happening in contention, shall require, without having any respect to any custom, use, or sufferance, in hindrance, let, or prejudice of the same, or to any other thing used or suffered to the contraiy thereof by any other manner of person or persons in any manner of wise; any foreign inhibitions, appeals, sentences, summons, citations, suspensions, interdictions, excommunica- tions, restraints, judgments, or any other process or impediments, o£ what natures, names, qualities, or conditions soever they be, from the see of Rome, or any other foreign courts or potentates of the world, or from and out of this realm, or any other the King's App. A.] 24 Hen. VIIL, cap. 12. [5] dominions, or marches of the same, to the see of Rome, or to any other foreign courts or potentates, to the let or impediment thereof in any wise notwith- standing. (5) And that it shall he lawful to the King our sovereign lord, and to his heirs and suc- cessors, and to all other subjects or resiants within this realm, or within any of the King's dominions or marches of the same, notwithstanding that hereafter it should happen any excommengement, excommuni- cations, interdictions, citations, or any other censures, or foreign process out of any outward parts, to be fulminate, promulged, declared, or put in execution within this said realm, or in any other place or places, for any of the causes before rehearsed, in prejudice, derogation, or contempt of this said Act, and the very true meaning and execution thereof, may and shall nevertheless as well pursue, execute, have, and enjoy the effects, profits, benefits, and commodities of all such processes, sentences, judgments and determina- tions done, or hereafter to be done, in any of the said courts spiritual or temporal, as the cases shall require, within the limits, power and authority of this the King's said realm, and dominions and marches of the same, and those only, and none other to take place, and to be firmly observed and obeyed within the same. (6) As also, that all the spiritual prelates, pastors, ministers, and curates within this realm, and the dominions of the same, shall and may use, minister, execute and do, or cause to be used, exe- cuted, ministred and done, all sacraments, sacramentals, divine services, and all other things within the said realm and dominions, unto all the subjects of the same, as Catholick and Christian men owen to do ; any former citations, processes, inhibitions, suspensions, inter- dictions, excommunications, or appeals, for or touching the causes aforesaid, from or to the see of Rome, or The prelates of this realm may execute all sacraments and divine service to the subjects of this realm. [6] 24 Ken. VIIL, cap. 12. [Arr. A. The penalty of them who omit to do their duty. Whosoever procureth from the see of Rome, &c, any appeals, process, sen- tences, &c, incur the for- feiture of praemunire. any other foreign prince or foreign courts, to the let or contrary thereof in any wise notwithstanding. III. And if any of the said spiritual persons, hy the occasion of the said fulminations of any of the same interdictions, censures, inhibitions, excommunications, appeals, suspensions, summons, or other foreign cita- tions for the causes beforesaid, or for any of them, do at any time hereafter refuse to minister, or cause to be ministred, the said sacraments and sacramentals, and other diviue services, in form as is aforesaid, shall for every such time or times that they or any of them do refuse so to do, or cause to be done, have one year's imprisonment, and to make fine and ransom at the King's pleasure. IV. And it is further enacted by the authority aforesaid, That if any person or persons inhabiting or resiant within this realm, or within any of the King's said dominions, or marches of the same, or any other person or persons, of what estate, condition or degree soever he or they be, at any time hereafter, for or in any the causes aforesaid, do attempt, move, purchase, or procure, from or to the see of Rome, or from or to any other foreign court or courts out of this realm, any manner foreign process, inhibitions, appeals, sen- tences, summons, citations, suspensions, interdictions, excommunications, restraints, or judgments, of what nature, kind, or quality soever they may be, or exe- cute any of the same process, or do any act or acts to the let, impediment, hindrance or derogation of any process, sentence, judgment or determination had, made, done, or hereafter to be had, done or made, in any courts of this realm, or the King's said dominions, or marches of the same, for any of the causes afore- said, contrary to the true meaning of this present Act, and the execution of the same, that then every such person or persons so doing, and their fautors, com- App. A.] 24 Hen. VIIL, cap. 12. forterSj abettors, procurers, executors, and counsellors, and every of them, being" convict of the same, for every such default shall incur and run in the same pains, penalties and forfeitures, ordained and provided by the statute of provision and praemunire, made in the sixteenth year of the reign of the right noble prince King' Richard the Second, against such as attempt, procure, or make provision to the see of Rome, or elsewhere, for any thing or things, to the derogation, or contrary to the prerogative or jurisdic- tion of the crown and dignity of this realm. V. And furthermore, in eschewing the said great enormities, inquietations, delays, charges and expences hereafter to be sustained in pursuing of such appeals, and foreign process, for and concerning the causes aforesaid, or any of them, do therefore by authority aforesaid, ordain and enact, That in such cases where heretofore any of the King's subjects or rcsiants have used to pursue, provoke, or procure any appeal to the see of Rome, and in all other cases of appeals, in or for any of the causes aforesaid, they may and shall from henceforth take, have and use their appeals within this realm, and not elsewhere, in manner and form as hereafter ensue th, and not otherwise ; that is to say, first from the Archdeacon, or his official, if the matter or cause be there begun, to the Bishop Diocesan of the said see, if in case any of the parties be grieved. VI. And in like wise if it be commenced before the Bishop Diocesan, or his commissary, from the Bishop Diocesan, or his commissary, within fifteen days next ensuing the judgment or sentence thereof there given, to the Archbishop of the Province of Canterbury, if it be within his province ; and if it be within the Pro- vince of York, then to the Archbishop of York ; and so likewise to all other Archbishops in other the King's dominions, as the case by order of justice shall require; [7] 16 R. II. c. 5. Before whom, and in what courts appeals shall be sued within this realm. 4 Mod. 116, 117. Dyer 209. [8] 24 Hen. VIII, cap. 12. [App. A. Appeals ought to be within 15 days. Suits com- menced be- fore an Arch- bishop shall be determined by him without any further appeal. The preroga- tive of the Archbishop of Canterbury saved. and there to be definitively and finally ordered, decreed, and adjudged, according to justice, without any other appellation or provocation to any other person or persons, court or courts. VII. And if tha matter or contention for any of the causes aforesaid be or shall be commenced, by any of the King's subjects or resiants, before the Arch- deacon of any Archbishop, or his commissary, then the party aggrieved shall or may take his appeal within fifteen days next after judgment or sentence there g-iven, to the Court of the Arches, or audience, of the same Archbishop or Archbishops; (2) and from the said Court of the Arches, or audience, within fifteen days then next ensuing after judgment or sentence there given, to the Archbishop of the same province, there to be defi- nitively and finally determined, without any other or further process or appeal thereupon to be had or sued. VIII. And it is further enacted by the authority aforesaid, that all and every matter, cause and con- tention now depending, or that hereafter shall be commenced by any of the King's subjects or resiants for any of the causes aforesaid, before any of the said Archbishops, that then the same matter or matters, contention or contentions, shall be before the same Archbishop where the said matter, cause or process shall be so commenced, definitively determined, decreed, or adjudged, without any other appeal, pro- vocation, or any other foreign process out of this realm, to be sued to the let or derogation of the said judgment, sentence or decree, otherwise than is by this Act limited and appointed : (£) saving always the prerogative of the Archbishop and Church of Canter- bury, in all the aforesaid causes of appeals, to him and to his successors to be sued within this realm, in such and like wise as they have been accustomed and used to have heretofore. App. A.] 24 Hen. VIIL, cap. 12. [9] IX. And in case any cause, matter or contention, now depending for the causes before rehearsed, or any of them, or that hereafter shall come in contention for any of the same causes, in any of the foresaid courts, which hath, doth, shall or may touch the King", his heirs or successors, Kings of this realm; that in all and every such case or cases the party grieved, as before is said, shall or may appeal from any of the said courts of this realm, where the said matter, now being in contention, or hereafter shall come in con- tention, touching the King, his heirs, or successors (as is aforesaid) shall happen to be ventilate, commenced or begun, to the spiritual prelates and other abbots and priors of the Upper House, assembled and con- vocate by the King's writ in the Convocation being, or next ensuing within the province or provinces where the same matter of contention is or shall be begun ; (2) so that every such appeal be taken by the party grieved within fifteen days next after the judgment or sentence thereupon given or to be given ; (3) and that whatsoever be done, or shall be done and affirmed, determined, decreed and adjudged by the foresaid prelates, abbots and priors of the Upper House of the said Convocation, as is aforesaid, appertaining, con- cerning, or belonging to the King, his heirs, and successors, in any of these foresaid causes of appeals, shall stand and be taken for a final decree, sentence, judgment, definition and determination, and the same matter, so determined, never after to come in question and debate, to be examined in any other court or courts. X. And if it shall happen any person or persons hereafter to pursue or provoke any appeal contrary to the effect of this Act, or refuse to obey, execute and observe all things comprised within the same, con- cerning the said appeals, provocations and other foreign processes to be sued out of this realm, for any Before whom an appeal shall be sued in any cause touch- ing: the King. [10] 25 Hen, VIII., cop. 19. [App. A. 16 R. II. c. 5. 28 Hen. VIII. c. 10. Rep. 1 & 2 Ph. & M. c. 8, and revived by 1 Eliz. c. 1. the causes aforesaid, that then every such person or persons so doing, refusing, or offending contrary to the true meaning of this Act, their procurers, fautors, advocates, counsellors, and abettors, and every of them, shall incur into the pains forfeitures and penalties ordained and provided in the said statute made in the said sixteenth year of King Richard the Second, and with like process to be made against the said offenders, as in the same statute made in the said sixteenth year more plainly appeareth. II. The effects of the following Statute on Final Eccle- siastical Appeals are treated of at pp. 14, 15 sup., and in chap. IV. sup., pp. 56, seq. 25 Hen. VIII., cap. 19.— a.d. 1533, o.s. The Submission of the Clergy, and Restraint of Appeals. Where the King's humble and obedient subjects, the clergy of this realm of England, have not only knowledged according to the truth, that the Convoca- tions of the same clergy, is, always hath been, and ought to be assembled only by the King's writ, but also submitting themselves to the King's Majesty, have promised in Verbo Sacerdotii, that they will never from henceforth presume to attempt, allege, claim or put in ure, or enact, promulge or execute any new canons, constitutions, ordinance provincial, or other, or by whatsoever other name they shall be called, in the Convocation, unless the King's most royal assent and licence may to them be had, to make, promulge and execute the same ; and that his Majesty 1*1" i 1 J_1 j 1 • j * j i i do give his most royal assent and authority m that App. A.] 25 Hen. VIII, cap. 19. [11] behalf : (2) and where divers constitutions, ordinances and canons provincial or synodal, which heretofore have been enacted, and be thought not only to be much prejudicial to the King's prerogative royal, and repugnant to the laws and statutes of this realm, but also overmuch onerous to his Highness and his sub- jects ; the said clergy hath most humbly besought the King's Highness, that the said constitutions and canons may be committed to the examination and judgment of his Highness, and of two and thirty persons of the King's subjects, whereof sixteen to be of the upper and nether house of the parliament of the temporalty, and the other sixteen to be of the clergy of this realm ; and all the said two and thirty persons to be chosen and appointed by the King's Majesty; (3) and that such of the said constitutions and canons, as shall be thought and determined by the said two and thirty persons, or the more part of them, worthy to be abrogated and adnulled, shall be abolite and made of no value accordingly ; (4) and such other of the same constitutions and canons, as by the said two and thirty, or the more part of them, shall be approved to stand with the laws of God, and consonant to the laws of this realm, shall stand in their full strength and power, the King's most royal assent first had and obtained to the same; (5) be it therefore now enacted by authority of this present parliament, according to the said submission and petition of the said clergy, That they ne any of them from henceforth shall presume to attempt, allege, claim or put in ure any constitutions or ordinances provincial or synodal, or any other canons ; nor shall enact, promulge or execute any such canons, con- stitutions or ordinances provincial, by whatsoever name or names they may be called, in their Convoca- tions in time coming (which alway shall be assembled Several canons have been pre- judicial to the King's prero- gative, and to the laws and statutes of this realm. The clergy shall not enact any constitu- tions or or- dinances without the King's assent. [12] 25 Hen. VIII., cap. 19. [App. A. The Convoca- tion shall he assembled by the King's writ. The King may assign 32 persons to examine the canons, and to continue such as they think worthy, and to abridge the residue. EXP 35 Hen. VI II. c. 16. 3 & 4 Ed. VI. c. 11. 3 Inst. 39. Hob. 148. 13 Co. 47. 2 Roll. 481. 2 Lev. 222. by authority of the King's writ) unless the same clergy may have the King's most royal assent and licence to make, promulge and execute such canons, constitutions and ordinances provincial or synodal, (6) upon pain of every one of the said clergy doing contrary to this Act, and being thereof convict, to suffer imprisonment, and make fine at the King's will. II. And forasmuch as such canons, constitutions and ordinances, as heretofore have been made by the clergy of this realm, cannot now at the session of this present Parliament, by reason of shortness of time, be viewed, examined and determined by the King's Highness, and thirty-two persons to be chosen and appointed according to the petition of the said clergy in form above rehearsed : be it therefore enacted by authority aforesaid, That the King's Highness shall have power and authority to nominate and assign, at his pleasure, the said two and thirty persons of his subjects, whereof sixteen to be of the clergy, and sixteen to be of the temporalty of the upper and nether house of the Parliament ; and if any of the said two and thirty persons so chosen shall happen to die before their full determination, then his Highness to nominate other from time to time of the said two houses of the Parliament, to supply the number of the said two and thirty ; (2) and that the same two and thirty, by his Highness so to be named, shall have power and authority to view, search and examine the said canons, constitutions and ordinances provincial and synodal heretofore made, and such of them as .the King's Highness and the said two and thirty, or the more part of them, shall deem and adjudge worthy to be continued, kept and obeyed, shall be from thence- forth kept, obeyed and executed within this realm, so that the King's most royal assent under his great seal be first had to the same ; (3) and the residue of App. A.] 25 Hen. VIIL, cap. 19. [13] the said canons, constitutions and ordinances pro- vincial, which the King's Highness, and the said two and thirty persons, or the more part of them, shall not approve, or deem and judge worthy to be abolite, abrogate and made frustrate, shall from thenceforth be void and of none effect, and never be put in execution within this realm. (4) Provided alway, That no canons, constitutions or ordinances shall be made or put in execution within this realm by authority of the Convocation of the clergy, which shall be contrariant or repugnant to the King's pre- rogative royal, or the customs, laws or statutes of this realm ; any thing contained in this Act to the contrary hereof notwithstanding. III. And be it further enacted by authority afore- said, That from the feast of Easter, which shall be in the year of our Lord God 1534, no 'manner of appeals shall be had, provoked, or made out of this realm, or out of any the King's dominions, to the Bishop of Rome, nor to the see of Rome, in any causes or matters happening to be in contention, and having their commencement and beginning in any of the courts within this realm, or within any the King's dominions, of what nature, condition or quality soever they be of; but that all manner of appeals, of what nature or condition soever they be of, or what cause or matter soever they concern, shall be made and had by the parties grieved, or having cause of appeal, after such manner, form and condition, as is limited for appeals to be had and prosecuted within this realm in causes of matrimony, tythes, oblations and obven- tions, by a statute thereof made and established sithen the beginning of this present Parliament, and accord- ing to the form and effect of the said estatute ; any usage, custom, prescription, or any thing or things to the contrary hereof notwithstanding. No canons shall be exe- cuted which be contrary to the King's prerogative, or to the laws. 3 Inst. 178. There shall be no appeals to Rome, but appeals shall be according to the statute made 24 Hen. VIIL c. 12. [14] 25 Hen. VIIL, cap. 19. [App. A. Appeals from the Arch- bishop's Court into the Chancery. •4 Mod 117. Dyer 209. Praemunire for suing of appeal to Rome, or exe- cuting any process from thence. 16 R. II. c. 5. Appeals from IV. And for lack of justice at or in any the courts of the Archbishops of this realm, or in any the King's dominions, it shall be lawful to the parties grieved to appeal to the King's Majesty in the King"'s Court of Chancery; (2) and that upon every such appeal, a Commission shall be directed under the great seal to such persons as shall be named by the King's High- ness, his heirs or successors, like as in case of appeal from the Admiral's Court, to hear and definitively determine such appeals, and the causes concerning the same. (3) Which Commissioners, so by the King's Highness, his heirs or successors, to be named or ap- pointed, shall have full power and authority to hear and definitively determine every such appeal, with the causes and all circumstances concerning the same; and that such judgment and sentence, as the said Commissioners shall make and decree, in and upon any such appeal, shall be good and effectual, and also definitive ; and no further appeals to be had or made from the said Commissioners for the same. V. And if any person or persons, at any time after the said feast of Easter, provoke or sue any manner of appeals, of what nature or condition soever they be of, to the said Bishop of Rome, or to the see of Rome, or do procure or execute any manner of process from the see of Rome, or by authority thereof, to the derogation or let of the due execution of this Act, or contrary to the same, that then every such person or persons so doing, their aiders, counsellors and abettors, shall incur and run into the dangers, pains and penalties contained and limited in the Act of provision and Praemunire made in the sixteenth year of the King's most noble progenitor, King Richard the Second, against such as sue to the court of Rome against the King's crown and prerogative royal. VI. Provided always, That all manner of provoca- App. A.] 25 Hen. VIIL, cap. 19. [15] tions and appeals hereafter to be had, made or taken from the jurisdictoin of any abbots, priors, or other heads and governors of monasteries, abbeys, priories and other houses and places exempt, in such cases as they were wont or might afore the making- of this Act, by reason of grants or liberties of such places exempt, to have or make immediately any appeal or provocation to the Bishop of Rome, otherwise called Pope, or to the see of Rome, that in all these cases every person and persons, having cause of appeal or provocation, shall and may take and make their appeals and provocations immediately to the King's Majesty of this realm, into the Court of Chancery, in like manner and form as they used afore to do to the see of Rome ; (2) which appeals and provocations so made, shall be definitively determined by authority of the King's commission, in such manner and form as in this Act is abovementioned ; (3) so that no Arch- bishop or Bishop of this realm shall intermit or meddle with any such appeals, otherwise or in any other manner than they might have done afore the making of this Act ; any thing in this Act to the contrary thereof notwithstanding. VII. Provided also, That such canons, constitu- tions, ordinances and synodals provincial being already made, which be not contrariant or repugnant to the laws, statutes and customs of this realm, nor to the damage or hurt of the King's prerogative royal, shall now still be used and executed as they were afore the making of this Act, till such time as they be viewed, searched, or otherwise ordered and determined by the said two and thirty persons, or the more part of them, according to the tenor, form and effect of this present Act. places exempt, which were to the see of Rome, shall now be into the Chancery. What canons, &c, are still in force. 27 Hen. VIII. c. 20. 37 Hen. VIII. c. 17. s. 2. Repealed by 1 & 2 Ph. & M. c. 8, and re- vived by 1 Eliz.c. 1. s. 10. L16] 2 Sf 3 Will. IV., cap. 92. [App. A. 25 Hen. VIII. c. 19. III. The effects of the following Statute on Final Eccle- siastical Appeals are treated of at p. 16 sup., and in chap. V. sup., pp. 70, seq. 2 & 3 Will. IV., cap. 92.— a.d. 1832. An Act for transferring the Powers of the High Court of Delegates, loth in Ecclesiastical and Maritime Causes, to His Majesty in Council. [7th August, 1832.] Whereas by an Act passed in the twenty-fifth year of the reign of King Henry the Eighth, and intituled " The Submission of the Clergy and Restraint of Appeals," it is (amongst other things) provided, that for lack of justice at or in any of the Courts of the Archbishops of this realm, or in any of»the King's dominions, it should be lawful to the parties grieved to appeal to the King's Majesty in the King's Court of Chancery ; and that upon every such appeal a Commission should be directed under the Great Seal to such persons as should be named by the King's Highness, his heirs or successors, like as in case of appeal from the Admirals Court, to hear and defini- tively determine such appeals, and the causes con- cerning the same; which Commissioners so by the King's Highness, his heirs or successors, to be named or appointed, should have full power and authority to hear and definitively determine every such appeal, with the causes and all circumstances concerning the same ; and that such judgment and sentence as the said Commissioners should make and decree in and upon any such appeal should be good and effectual, and also definitive, and that no further appeals should App. A.] 2 £ 3 Will. IV., cap. 92. [17] be had or made from the said Commissioners for the same; and that all manner of provocations and appeals thereafter to be had, made, or taken, frcm the jurisdiction of any abbots, priors, or other heads and governors of monasteries, abbeys, priories, and other houses and places exempt, in such cases as they were wont or might afore the making of the Act now in recital, by reason of grants or liberties of such places exempt, to have or make immediately any appeal or provocation to the Bishop of Rome, otherwise called Pope, or to the See of Rome ; in all those cases every person and persons having cause of appeal or pro- vocation should and might take and make their appeals and provocations immediately to the King's Majesty of this realm, into the Court of Chancery, in the manner and form as they used afore to do to the See of Rome ; which appeals and provocations so made should be definitively determined by authority of the King's Commission in such manner and form as was in the said Act now in recital above mentioned, so that no Archbishop or Bishop of this realm should intermit or meddle with any such appeals otherwise or in any other manner than they might have done afore the making of the Act now in recital ; any thing in the Act now in recital to the contrary thereof not- withstanding : And whereas by an Act passed in the eighth year of the reign of Queen Elizabeth, and intituled " For the Avoiding of tedious Suits in Civil and Marine Causes," it is provided that every such judgment and sentence definitive as should be given and pronounced in any Civil and Marine cause, upon appeal lawfully to be made therein to the Queen's Majesty in Her Highness' Court of Chancery, by such Commissioners or delegates as should be nominated and appointed by Her Majesty, her heirs or successors, by Commission under the Half Seal, as it had been B 8 Eliz. c. 5. [18] 2^3 Will. IV., cap. 92. [1pp. A. 25 Hen. VIII. c. 19, so far as relates to the Power of Ap- peal and to the Appoint- theretofore used in such cases, should be final, and that no further appeal should be made from the said judgment or sentence definitive, or from the said Commissioners or delegates, for or in the same; any law, usage, or custom to the contrary notwith- standing : And whereas the persons who from time to time have been appointed Commissioners by com- mission under the Great Seal or under the Half Seal, by virtue of the authority of either of the herein- before-recited Acts, have been commonly called " The High Court of Delegates : " And w 7 hereas, notwith- standing the hereinbefore-recited Acts, the King's Majesty for the time being hath out of his royal favour occasionally granted, upon petition to him in Council made for that purpose, a Commission under the Great Seal authorizing the Commissioners therein named to review the judgments and decrees of the High Court of Delegates so appointed as aforesaid : And whereas it is expedient that the hereinbefore-recited Act of the eighth year of Queen Elizabeth, and also so much of the hereinbefore-recited Act of the twenty-fifth year of King Henry the Eighth as relates to the appeal to His Majesty in Chancery, should be repealed, and that all the powers which by virtue of either of the said Acts have or might have been enjoyed by the said High Court of Delegates should be in future exercised by his Majesty in Council, and that no such Commission of Review as aforesaid should hereafter be granted ; be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That the hereinbefore-recited Act of the twenty-fifth year of the reign of King Henry the Eighth, so far as relates to any power thereby given to appeal in any case to the King's Majesty in his High App. A.] 2 cj- 3 Will. IV., cap. 92. [19] Court of Chancery, and so far as the same empowers his Majesty to grant a Commission under the Great Seal authorizing the persons therein named to hear and determine such appeals, shall, as from the first day of February one thousand eight hundred and thirty- three, be and the same is hereby repealed. II. And be it also enacted, That the hereinbefore- recited Act of the eighth year of the reign of Queen Elizabeth shall, as from the first day of February one thousand eight hundred and thirty-three, be and the same is hereby repealed. III. And be it further enacted, That from and after the said first day of February one thousand eight hundred and thirty -three it shall be lawful to and for every person who might heretofore, by virtue of either of the said recited Acts, have appealed or made suit to his Majesty in his High Court of Chancery, to appeal or make suit to the King's Majesty, his heirs or successors, in Council, within such time, in such manner, and subject to such rules, orders, and regula- tions for the due and more convenient proceeding, as shall seem meet and necessary, and upon such security, if any, as his Majesty, his heirs and successors, shall from time to time by Order in Council direct ; and that the King's Majesty, his heirs and successors, in Council, shall thereupon have power to proceed to hear and determine every appeal and suit so to be made by virtue of this Act, and to make all such judgments, orders, and decrees in the matter of such appeal or suit as might heretofore have been made by his Majesty's Commissioners appointed by virtue of either of the hereinbefore-recited Acts if this Act had not been passed ; and that every such judgment, order, and decree so to be made by the King's Majesty, his heirs and successors, shall have such and the like force and effect in all respects whatsoever as B 2 ment of Do- legates, re- pealed from 1 Feb. 1838. 8 Eliz. e. 5. repealed from 1 Feb. 1833. From 1 Feb. 1833 Powers of the High Court of Delegates transferred to the King in Council ; and no Commis- sion of Review to be there- after granted. [20] 3^4 Witt, IV., cap. 41. [App. A. Proviso for Appeals now pending, or which may be pending previous to 1 Feb. 1833. the same respectively would have had if made and pronounced by the aforesaid High Court of Delegates ; and that every such judgment, order, and decree shall be final and definitive, and that no Commission shall hereafter be granted or authorized to review any judgment or decree to be made by virtue of this Act. IV. Provided always, and be it enacted, That nothing herein contained shall extend to affect any appeal now pending, or which before the said first day of February one thousand eight hundred and thirty- three may be pending, to his Majesty in Chancery, by virtue of either of the hereinbefore-recited Acts, or to affect the right of his Majesty to grant any such Commission under the Great Seal or under the Half Seal as aforesaid, to hear and adjudicate upon any appeal so now pending, or which may before the said first day of February one thousand eight hundred and thirty-three be pending ; and that every judgment or decree of the said High Court of Delegates, by virtue of either of the said recited Acts, already made or hereafter to be made, in any cause so now pending or which shall be so pending as aforesaid, shall have such and the like force and effect in all respects as if this Act had not been passed. IV. The effects of the following Statute on Final Eccle- siastical Appeals are treated of at pp. 8. 16, 17, sup., and in chap. VI., pp. 75, seq. 3 & 4 Will. IV., cap. 41.— a.d. 1833. An Act for the better Administration of Justice in his Majesty's Privy Council. \\\th August, 1S33.] Whereas by virtue of an Act passed in a session of Parliament of the second and third years of the reign App. A.] 3^4 Will. IV., cap. 41. [21] of his present Majesty, intituled "An Act for trans- ferring- the powers of the High Court of Delegates, both in Ecclesiastical and Maritime causes, to his Majesty in Council," it was enacted, that from and after the first day of February one thousand eight hundred and thirty-three it should be lawful for every person who might theretofore, by virtue either of an Act passed in the twenty-fifth year of the reign of King Henry the Eighth, intituled " The Submission of the Clergy and Restraint of Appeals," or of an Act passed in the eighth year of the reign of Queen Elizabeth, intituled " For the Avoiding of tedious Suits in Civil and Marine Causes," have appealed or made suit to his Majesty in his High Court of Chancery, to appeal or make suit to the King's Majesty, his heirs or successors, in Council, within such time, in such manner, and subject to such rules, orders, and regulations for the due and more con- venient proceeding, as should seem meet and necessary, and upon such security, if any, as his Majesty, his heirs and successors, should from time to time by Order in Council direct : And whereas, by Letters Patent under the Great Seal of Great Britain, certain persons, members of his Majesty's Privy Council, together with others, being judges and barons of his Majesty's Courts of Record at Westminster, have been from time to time appointed to be his Majesty's Commissioners for receiving, hearing, and deter- mining appeals from his Majesty's Courts of Admiralty in causes of Prize : And whereas, from the decisions of various Courts of Judicature in the East Indies, and in the plantations, colonies, and other dominions of his Majesty abroad, an appeal lies to his Majesty in Council : And whereas matters of Appeal or petition to his Majesty in Council have usually been heard before a Committee of the whole of his Majesty's 2 & 3 Will. IV. c. 92. 25 Hen. VIII. c. 19. 8 Eliz. c. 5. [22] 3^4 Will. IF., cap. 41. [App. A. Certain persons to form a Com- mittee, to be styled " The Judicial Com- mittee of the Privy Council." Privy Council, who have made a report to his Majesty in Council, whereupon the final judgment or determi- nation hath been given by his Majesty : And whereas it is expedient to make certain provisions for the more effectual hearing and reporting on appeals to his Majesty in Council and on other matters, and to give such powers and jurisdiction to His Majesty in Council as hereinafter mentioned : Be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, That the President for the time being of his Majesty's Privy Council, the Lord High Chancellor of Great Britain for the time being, and such of the members of his Majesty's Privy Council as shall from time to time hold any of the offices following, that is to say, the office of Lord Keeper or First Lord Commissioner of the Great Seal of Great Britain, Lord Chief Justice or Judge of the Court of King's Bench, Master of the Rolls, Vice-Chancellor of England, Lord Chief Justice or Judge of the Court of Common Pleas, Lord Chief Baron or Baron of the Court of Exchequer, Judge of the Prerogative Court of the Lord Arch- bishop of Canterbury, Judge of the High Court of Admiralty, and Chief Judge of the Court in Bank- ruptcy, and also all persons, members of his Majesty's Privy Council, who shall have been President thereof or held the office of Lord Chancellor of Great Britain, shall have held any of the other offices herein- or before mentioned, shall form a Committee of his Majesty's said Privy Council, and shall be styled "The Judicial Committee of the Privy Council:" Provided nevertheless, that it shall be lawful for his Majesty from time to time, as and when he shall think fit, by his sign manual, to appoint any two App. A.] 3^4 Will. IV., cap. 41. [23] other persons, being- Privy Councillors, to be members of the said Committee. II. And be it further enacted, That from and after the first day of June one thousand eight hundred and thirty-three all appeals or applications in Prize suits and in all other suits or proceedings in the Courts of Admiralty, or Vice-Admiralty Courts, or any other Court in the plantations in America and other his Majesty's dominions or elsewhere abroad, which may now, by virtue of any law, statute, commission, or usage, be made to the High Court of Admiralty in England, or to the Lords Commissioners in Prize cases, shall be made to his Majesty in Council, and not to the said High Court of Admiralty in England or to such Commissioners as aforesaid ; and such ajipeals shall be made in the same manner and form and within such time wherein such appeals might, if this Act had not been passed, have been made to the said High Court of Admiralty or to the Lords Com- missioners in Prize cases respectively; and that all laws or statutes now in force with respect to any such appeals or applications shall apply to any appeals to be made in pursuance of this Act to his Majesty in Council. III. And be it further enacted, That all appeals or complaints in the nature of appeals whatever, which either by virtue of this Act, or of any law, statute, or custom, may be brought before his Majesty or his Majesty in Council from or in respect of the determi- nation, sentence, rule, or order of any Court, judge, or judicial officer, and all such appeals as are now pending and unheard, shall from and after the passing of this Act be referred by his Majesty to the said Judicial Committee of his Privy Council, and that such aj)peals, causes, and matters shall be heard by the said Judicial Committee, and a report or recom- Appeals from Vice-Admi- ralty Courts abroad, &c, to be made to the King in Coun- cil. All Appeals from sentence of any judge, &c, to be re- ferred by bis Majesty to the Committee, to report thereon. [24] 3 £ 4 Will. IV., cap. 41. [App. A. His Majesty may refer any other matters to Committee. No matter to be heard unless in presence of four members of the Com- mittee. In ease the King directs the attendance of any judge, a member of the Committee, the other judges of the Court to which he be- longs to make arrangements with regard to the business of the Court. mendation thereon shall be made to his Majesty in Council for his decision thereon as heretofore, in the same manner and form as has been heretofore the custom with respect to matters referred by his Majesty to the whole of his Privy Council or a Com- mittee thereof (the nature of such report or recom- mendation being- always stated in open Court) . IV. And be it further enacted, That it shall be lawful for his Majesty to refer to the said Judicial Committee for hearing or consideration any such other matters whatsoever as his Majesty shall think fit, and such Committee shall thereupon hear or consider the same, and shall advise his Majesty thereon in manner aforesaid. V. And be it further enacted, That no matter shall be heard, nor shall any order, report, or recom- mendation be made, by the said Judicial Committee, in pursuance of this Act, unless in the presence of at least four members of the said Committee ; and that no report or recommendation shall be made to his Majesty unless a majority of the members of such Judicial Committee present at the hearing shall concur in such report or recommendation : Provided always, that nothing herein contained shall prevent his Majesty, if he shall think fit, from summoning any other of the members of his said Privy Council to attend the meetings of the said Committee. VI. And be it further enacted, That in case his Majesty shall be pleased, by directions under his sign manual, to require the attendance at the said Com- mittee for the purposes of this Act of any member or members of the said Privy Council who shall be a judge or judges of the Court of King's Bench, or of the Court of Common Pleas, or of the Court of Exchequer, such arrangements for dispensing with the attendance of such judge or judges upon his or their App. A.] 3 # 4 Will. 1 V., cap. 41. [25] ordinary duties during the time of such attendance at the Privy Council as aforesaid shall be made by the judges of the Court or Courts to which such judge or judges shall belong respectively in regard to the business of the Court and by the judges of the said three Courts, or by any eight or more of such judges, including the chiefs of the several Courts, in regard to all other duties, as may be necessary and consistent with the public service. VII. And be it enacted, That it shall be lawful for the said Judicial Committee, in any matter which shall be referred to such Committee, to examine witnesses by word of mouth (and either before or after examination by deposition), or to direct that the depositions of any witness shall be taken in writing by the Registrar of the said Privy Council to be appointed by his Majesty as hereinafter mentioned, or by such other person or persons, and in such manner, order, and course, as his Majesty in Council or the said J udicial Committee shall appoint and direct ; and that the said Registrar and such other person or persons so to be appointed shall have the same powers as are now possessed by an Examiner of the High Court of Chancery or of any Court Ecclesiastical. VIII. And be it enacted, That in any matter which shall come before the said Judicial Committee it shall be lawful for the said Committee to direct that such witnesses shall be examined or re-examined, and as to such facts as to the said Committee shall seem fit, notwithstanding any such witness may not have been examined, or no evidence may have been given on any such facts in a previous stage of the matter ; and it shall also be lawful for his Majesty in Council, on the recommendation of the said Committee, upon any appeal, to remit the matter which shall be the subject of such appeal to the Court from the decision of which Evidence may be taken viva voce, or upon written deposi- tions. Committee may order any particular witnesses to be examined, and as to any par- ticular facts, and may remit causes for re- hearing. [26] 3^4 Will. IV., cap. 41. [App. A. Witnesses to be examined on oath, aud to be liable to punishment for perjury. Committee may direct an issue to try any fact ; may, in certain cases, direct depositions to be read at the such appeal shall have been made, and at the same time to direct that such Court shall re-hear such matter, in such form, and either generally or upon certain points only, and upon such re-hearing take such additional evidence, though before rejected, or reject such evidence before admitted, as his Majesty in Council shall direct ; and further, on any such remit- ting or otherwise, it shall be lawful for his Majesty in Council to direct that one or more feigned issue or issues shall be tried in any Court in any of his Majesty's dominions abroad, for any purpose for which such issue or issues shall to his Majesty in Council seem proper. IX. And be it enacted, That every witness who shall be examined in pursuance of this Act shall give his or her evidence upon oath, or if a Quaker or Moravian upon solemn affirmation, which oath and affirmation respectively shall be administered by the said Judicial Committee and Registrar, and by such other person or persons as his Majesty in Council or the said Judicial Committee shall appoint ; and that every such witness who shall wilfully swear or affirm falsely shall be deemed guilty of perjury, and shall be punished accordingly. X. And be it enacted, That it shall be lawful for the said Judicial Committee to direct one or more feigned issue or issues to be tried in any Court of Common Law, and either at Bar, before a Judge of Assize, or at the sittings for the trial of issues in London or Middlesex, and either by a special or common jury, in like manner and for the same purpose as is now done by the High Court of Chancery. XL And be it enacted, That it shall be in the discretion of the said Judicial Committee to direct that, on the trial of any such issue, the depositions App. A.] 3 Sf 4 Will. IV., cap. 41. already taken of any witness who shall have died, or who shall be ineapable to give oral testimony, shall be received in evidence; and further, that such deeds, evidences, and writings shall be produced, and that such facts shall be admitted, as to the said Committee shall seem fit. XII. And be it enacted, That it shall be lawful for the said Judicial Committee to make such and the like orders respecting the admission of persons, whether parties or others, to be examined as witnesses upon the trial of any such issues as aforesaid, as the Lord High Chancellor or the Court of Chancery has been used to make respecting the admission of witnesses upon the trial of issues directed by the Lord Chancellor or the Court of Chancery. XIII. And be it enacted, That it shall be lawful for the said Judicial Committee to direct one or more new trial or new trials of any issue, either generally or upon certain points only ; and that in case any witness examined at a former trial of the same issue shall have died, or have, through bodily or mental disease or infirmity, become incapable to repeat his testimony, it shall be lawful for the said Committee to direct that parol evidence of the testimony of such witness shall be received. XIV. And whereas by an Act passed in the thirteenth year of his late Majesty King George the Third, and intituled " An Act for establishing certain Regulations for the better management of the Affairs of the East India Company, as well in India as in Europe/' and by an Act passed in the first year of the reign of his present Majesty, and intituled " An Act to enable the Courts of Law to order the examination of witnesses upon interrogatories and otherwise," certain powers are given to certain Courts therein mentioned to enforce, and provisions are made for the [27] trial of the issue ; may make such orders as to the admission of evidence as are made by the Court of Chancery; and may direct new trials of Powers, &c, of 13 Geo. III. c. 63, and 1 Will. IV. c. 22, with regard to examination of witnesses applied to the Judicial Com- mittee. [28] 3^4 Will. IV., cap. 41. [App. A. Costs to be in the discretion of the Com- mittee. Decrees to be enrolled. Committee may refer matters to Registrar in same manner as matters are by Court of Chancery re- ferred to a Master. examination of witnesses by commission, upon inter- rogatories and otherwise ; be it therefore further enacted, That all the powers and provisions contained in the two last- mentioned Acts, or either of them, shall extend to and be exercised by the said Judicial Committee in all respects as if such Committee had been therein named as one of his Majesty's Courts of Law at Westminster. XV. And be it enacted, That the costs incurred in the prosecution of any appeal or matter referred to the said Judicial Committee, and of such issues as the same Committee shall under this Act direct, shall be paid by such party or parties, person or persons, and be taxed by the aforesaid Registrar, or such other person or persons, to be appointed by his Majesty in Council or the said Judicial Committee, and in such manner as the said Committee shall direct. XVI. And be it further enacted, That the orders or decrees of his Majesty in Council made, in pur- suance of any recommendation of the said Judicial Committee, in any matter of appeal from the judg- ment or order of any Court or judge, shall be en- rolled, for safe custody, in such manner, and the same may be inspected and copies thereof taken under such regulations as his Majesty in Council shall direct. XVII. And be it further enacted, That it shall be lawful for the said Committee to refer any matters to be examined and reported on to the aforesaid Registrar, or to such other person or persons as shall be appointed by his Majesty in Council or by the said Judicial Committee, in the same manner and for the like purposes as matters are referred by the Court of Chancery to a Master of the said Court ; and that for the purposes of this Act the said Registrar and the said person or persons so to be appointed shall have App. A.] 3^4 Will. IV., cap. 41. the same powers and authorities as are now possessed by a Master in Chancery. XVIII. And be it further enacted, That it shall be lawful for his Majesty, under his sign manual, to appoint any person to be the Registrar of the said Privy Council, as regards the purposes of this Act, and to direct what duties shall be performed by the said Registrar. XIX. And be it further enacted, That it shall be lawful for the President for the time being of the said Privy Council to require the attendance of any witnesses, and the production of any deeds, evidences, or writings, by writ to be issued by such President in such and the same form, or as nearly as may be, as that in which a writ of Subpoena ad testificandum or of Subpoena duces tecum is now issued by his Majesty's Court of King's Bench at Westminster; and that every person disobeying any such writ so to be issued by the said President shall be considered as in contempt of the said Judicial Committee, and shall also be liable to such and the same penalties and consequences as if such writ had issued out of the said Court of King's Bench, and may be sued for such penalties in the said Court. XX. And be it further enacted, That all appeals to his Majesty in Council shall be made within such times respectively within which the same may now be made, where such time shall be fixed by any law or usage, and where no such law or usage shall exist, then within such time as shall be ordered by his Majesty in Council; and that, subject to any right subsisting under any charter or constitution of any colony or plantation, it shall be lawful for his Majesty in Council to alter any usage as to the time of making appeals, and to make any order respecting the time of appealing to his Majesty in Council. [29] The King may appoint Registrar. Attendance of witnesses, and production of papers, &c, may be com- pelled by Sub- poena. Time of ap- pealing. [30] 3^4 Will. IV., cap. 41. [App. A. Decrees for Courts abroad to be carried into etlect as the King in Council shall direct. Act not to abridge powers of Privy Coun- cil. His Majesty may direct the East India Com- pany to bring on Appeals from the Sud- der Dewanny Adavvlut Courts to a hearing. XXI. And be it further enacted, That the order or decree of his Majesty in Council on any appeal from the order, sentence, or decree of any court of justice in the East Indies, or of any colony, plantation, or other his Majesty's dominions abroad, shall be carried into effect in such manner, and subject to such limitations and conditions, as his Majesty in Council shall, on the recommendation of the said Judicial Committee, direct ; and it shall be lawful for his Majesty in Council, on such recommendation, by order, to direct that such court of justice shall carry the same into effect accordingly, and thereupon such court of justice shall have the same powers of carrying into effect and enforcing such order or decree as are possessed by or are hereby given to his Majesty in Council : Provided always, that nothing in this Act contained shall impeach or abridge the powers, juris- diction, or authority of his Majesty's Privy Council as heretofore exercised by such Council, or in anywise alter the constitution or duties of the said Privy Council, except so far as the same are expressly altered by this Act, and for the purposes aforesaid. XXII. And whereas various appeals to his Majesty in Council from the Courts of Sudder Dewanny Adawlut at the several Presidencies of Calcutta, Madras, and Bombay in the East Indies, have been admitted by the said Courts, and the transcripts of the proceedings in appeal have been from time to time transmitted under the Seal of the said Courts, through the United Company of Merchants in England trading to the East Indies, to the office of his Majesty's said Privy Council, but the suitors in the causes so appealed have not taken the necessary measures to bring on the same to a hearing ; be it therefore further enacted by the authority aforesaid, That it shall be lawful for his Majesty in Council to give such direc- App. A.] 3^4 Will. IV., cap. 41. [31] tions to the said United Company and other persons for the purpose of bringing to a hearing- before the said Committee the several cases appealed or here- after to be appealed to his Majesty in Council from the several Courts of Sudder Dewanny Adawlut in the East Indies, and for appointing- agents and counsel for the different parties in such appeals, and to make such orders for security and payment of the costs thereof, as his said Majesty in Council shall think fit ; and thereupon such appeals shall be heard and reported on to his Majesty in Council, and shall be by his Majesty in Council determined in the same manner, and the judgments, orders, and decrees of his Majesty in Council thereon shall be of the same force and effect, as if the same had been brought to a hearing by the direction of the parties appealing in the usual course of proceeding : Provided always, that such last-mentioned powers shall not extend to any appeals from the said Courts of Sudder Dewanny Adawlut other than appeals in which no proceedings have been or shall hereafter be taken in England on either side for a period of two years subsequent to the admission of the appeal by such Court of Sudder Dewanny Adawlut. XXIII. And be it enacted, That in any case where any order shall have been made on any such appeal as last aforesaid, the same shall have full force and effect notwithstanding the death of any of the parties interested therein; but that in all cases where any such appeal may have been withdrawn or discon- tinued, or any compromise made in respect of the matter in dispute, before the hearing thereof, then the determination of his Majesty in Council in respect of such appeal shall have no effect. XXIV. And be it further enacted, That it shall be lawful for his Majesty in Council from time to time Orders made on such Ap- peals to have effect notwith- standing death of parties, &c. His Majesty empowered to make orders for [32] 3^4 Will. IV., cap. 41. [App. A. regulating the mode, &c, of such Appeals. His Majesty empowered to appoint one of the Barons of the Court of Exchequer to sit in Equity in the absence of the Chief Baron. to make any such rules and orders as may be thought fit for the regulating the mode, form, and time of appeal to be made from the decisions of the said Courts of Sudder Dewanny Adawlut, or any other Courts of Judicature in India or elsewhere to the eastward of the Cape of Good Hope (from the decisions of which an appeal lies to his Majesty in Council), and in like manner from time to time to make such other regulations for the preventing delays in the making or hearing such appeals, and as to the expenses attending the said appeals, and as to the amount or value of the property in respect of which any such appeal may be made. XXV. And whereas by an Act of Parliament passed in the fifty-seventh year of the reign of his Majesty King George the Third, intituled "An Act to facilitate the hearing and determining of suits in Equity in his Majesty's Court of Exchequer at West- minster," it was enacted that the Lord Chief Baron of the said Court for the time being should have power to hear and determine all causes, matters, and things which should be at any time depending in the said Court of Exchequer as a court of equity, and that if the said Lord Chief Baron of the Court of Exchequer should by sickness or any other unavoidable cause be prevented from sitting on the Equity side of the said Court for the purposes in the said Act mentioned, then it should and might be lawful for his Majesty and his successors to nominate and appoint from time to time by warrant under the Royal sign manual, revocable at pleasure, any one other of the barons of the degree of the coif of the said Court for the time being, to hear and determine the causes, matters, and things in the said Act mentioned : And wnereas by reason of the great increase of business on the Common Law or Plea side of the said Court of Apr. A.] 3 cf 4 Will. IV., cap. 41. [33] Exchequer, the Lord Chief Baron is prevented from giving- so much time as heretofore to the sittings on the Equity side of the said Court, and the sittings on such Equity side of the said Court being necessarily suspended during the absence of the Lord Chief Baron, great inconvenience is thereby sustained by the suitors and practitioners on the Equity side of the said Court : And whereas the Lord Chief Baron may by this Act become liable to the performance of other additional duties unconnected with the said Court of Exchequer, and it is desirable that the said Court of Exchequer should sit as a Court of Equity without any unnecessary interruption, for the purpose of hearing and determining causes, matters, and things depending in the said Court as a Court of Equity : And whereas doubts have arisen whether or not the above-recited Act extends to cases of the Lord Chief Baron being prevented from sitting by the perform- ance of judicial duties elsewhere ; be it therefore declared and enacted, That it shall and may be lawful for his Majesty and his successors to nominate and appoint from time to time by warrant under the royal sign manual, revocable at pleasure, any one of the Barons of the degree of the coif of the said Court for the time being to hear and determine (on such days as the Lord Chief Baron of the said Court shall sit on the Common Law side of the said Court during the term, or shall preside at the sittings at Nisi Prius in London or Middlesex after the term, or shall attend at the Judicial Committee of his Majesty's Privy Council under the provisions of this Act) all causes, matters, and things which shall at any time be depending in the said Court of Exchequer as a Court of Equity. XXVI. And be it lurcher enacted, 1 hat during the absence of the Chief Judge in Bankruptcy from the C Two judges of the Court of Bankruptcy to [34] act for the Chief Judge of the Court of Review during his attendance at the said Judicial Com- mittee. Powers of Act 57 Geo. III. ex- tended to this Act. Power of enforcing decrees. 2 & 3 Will. IV. c. 93. 3 cj- 4 Will. IV., cap. 41. [Apr. A. Court of Review established by virtue of an Act passed in the first and second year of his present Majesty intituled " xVn Act to establish a Court in Bankruptcy " by reason of his attendance at the said Judicial Committee by virtue of this Act, any two judges of the said Court shall and may form a Court of Review in Bankruptcy, and shall and may make, do, and execute all orders, acts, matters, powers, and things whatsoever which by virtue of the said Act the judges of the said Court or any three of them are authorized to make, do, or execute, and in all respects whatsoever as if three of the said judges were present, except that nothing herein contained shall authorize any two judges of the said Court to hear and deter- mine any matter brought under the review of the said Court by way of Appeal from the determination or decision of any Commissioner or Subdivision Court appointed by virtue of the said Act. XXVII. And be it further enacted, That all the clauses and provisions contained in the said Act of Parliament which relate to the Baron nominated and appointed under that Act shall apply and be extended to the Baron nominated and ajipointed under the authority of this Act. XXVIII. And be it enacted, That the said Judicial Committee shall have and enjoy in all respects such and the same power of punishing contempts and of compelling appearances, and that his Majesty in Council shall have and enjoy in all respects such and the same powers of enforcing judgments, decrees, and orders, as are now exercised by the High Court of Chancery or the Court of King's Bench (and both in personam and in rem), or as are given to any Court Ecclesiastical by an Act of Parliament passed in a session of Parliament of the second and third years of the reign of his present Majesty, intituled " An Act App. A.] 3 Sf 4 Will. IV., cap. 41 [35] for enforcing the process upon Contempts in the Courts Ecclesiastical of England and Ireland;" and that all such powers as are given to Courts Eccle- siastical, if of punishing contempts or of compelling appearances, shall be exercised by the said Judicial Committee, and if of enforcing decrees and orders shall be exercised by his Majesty in Council, in such and the same manner as the powers in and by such Act of Parliament given, and shall be of as much force and effect as if the same had been thereby expressly given to the said Committee or to his Majesty in Council. XXIX. And be it further enacted, That, subject to such orders as his Majesty in Council shall from time to time make, it shall be lawful for the present Registrar of the High Court of Admiralty, if he shall so think fit, either in person or by deputy, to attend the hearing by the said Judicial Committee of all causes and Appeals which, but for this Act or the said last-mentioned Act, would have been heard by any Court or Commission which such Registrar was entitled to attend, in person or by deputy, by virtue of his offices of Registrar of the High Courts of Admiralty, delegates, and Appeals for prizes, and likewise, subject to any order of his Majesty in Council, to transact, perform, and do all acts, matters, and things that shall be found necessary, or have heretofore been done by the said Registrar or his deputies in respect of such causes and Appeals. XXX. And be it enacted, That two members of his Majesty's Privy Council who shall have held the office of judge in the East Indies or any of his Majesty's dominions beyond the seas, and who, being appointed for that purpose by his Majesty, shall attend the- sittings of the J udicial Committee of the Privy Council, shall severally be entitled to receive C 2 Registrar of Court of Ad- miralty may attend the said Judicial Committee. Retired judges at- tending the Judicial Com- mittee to re- ceive an allow- [36] 3 Sf 4 Will. IV., cap. 41. [Apr. A. to act in his stead. Nothing herein shall prevent the King's ac- ceding to treaties ap- pointing cer- tain persons to hear Prize Appeals. over and above any annuity granted to them in respect of having held such office as aforesaid, the sum of four hundred pounds for every year during which they shall so attend as aforesaid, as an in- demnity for the expense which they may thereby incur; and such sum of four hundred pounds shall be chargeable upon and paid out of the Consolidated Fund of the United Kingdom of Great Britain and Ireland. XXXI. Provided always, and be it enacted, That nothing herein contained shall be held to impeach or render void any treaty or engagement already entered into by or on behalf of his Majesty, or be taken to restrain his Majesty from acceding to any treaty, with any foreign prince, potentate, or power, in which treaty it shall be stipulated that any person or persons other than the said Judicial Committee shall hear and finally adjudicate Appeals from his Majesty's Courts of Admiralty in causes of Prize, but that the judgments, decrees, and orders of such other person or persons so appointed by treaty shall be of the same force and effect of which they would re- spectively have been if this Act had not been passed. V. The effects of the following Statute on Final Eccle- siastical Appeals are treated of at pp. 7, 8, sup. 3 & 4 Vict., cap. 86.— a.d. 1840. An Act for better enforcing Church Discipline. [7th August, 1840.] Whereas the manner of proceeding in causes for the correction of clerks requires amendment : Be it enacted by the Queen's most Excellent Majesty, by Arp. A.] 3^4 Vict., cap. 86. and with the advice and consent of the Lords Spiri- tual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That an Act passed in the first year of the reign of King Henry the Seventh, intituled " An Act for Bishops to punish Priests and other religious men for dishonest lives/'' shall be repealed. II. And be it enacted, That, unless it shall other- wise appear from the context, the term " preferment/' when used in this Act, shall be construed to com- prehend every Deanery, Archdeaconry, Prebend, Canonry, office of Minor Canon, Priest Vicar, or Vicar Choral in Holy Orders, and every Precentor- ship, Treasurership, Sub-Deanery, Chancellorship of the church, and other dignity and office in* any cathedral or collegiate church, and every Mastership, Wardenship, and Fellowship in any collegiate church, and all benefices with cure of souls, comprehending therein all parishes, perpetual curacies, donatives, endowed public chapels, parochial chapelries, and chapelries or districts belonging to or reputed to belong, or annexed or reputed to be annexed, to any church or chapel, and every curacy, lectureship, readership, chaplaincy, office, or place which requires the discharge of any spiritual duty, and whether the same be or be not within any exempt or peculiar jurisdiction ; and the word " Bishop/' when used in this Act, shall be construed to comprehend "Arch- bishop ; " and the word " Diocese," when used in this Act, shall be construed to comprehend all places to which the jurisdiction of any Bishop extends under and for the purposes of an Act passed in the second year of the reign of her present Majesty, intituled "An Act to abridge the holding of benefices in plurality, and to make better provision for the residence of the clergy.'" [37] Repeal of 1 Hen. VII. c. 4. Definition of the Terms "Preferment," " Bishop," " Archbishop" and " Diocese." 1 & 2 Vict, c. 106. [38] Bishop may issue a Com- mission of Inquiry. Notice to be previously given. Proceedings of the Com- missioners. 3 £ 4 Vict,, cap. 86. [Ape. A. III. And be it enacted, That in every ease of any clerk in Holy Orders of the United Church of England and Ireland who may be charged with any offence against the laws Ecclesiastical, or coneemino; whom tbere may exist scandal or evil report as having offended against the said laws, it shall be lawful for the Bishop of the diocese within which the offence is alleged or reported to have been committed, on the application of any party complaining thereof, or if he shall think fit of his own mere motion, to issue a Commission under his hand and seal to five persons, of whom one shall be his Vicar General, or an Arch- deacon or Kural Dean within the diocese, for the purpose of making inquiry as to the grounds of such charge or report : Provided always that notice of the intention to issue such Commission under the hand of the Bishop, containing an intimation of the nature of the offence, together with the names, addition, and residence of the party on whose application or motion such Commission shall be about to issue, shall be sent by the Bishop to the party accused fourteen days at least before such Commission shall issue. IV. And be it enacted, That it shall be lawful for the said Commissioners or any three of them to examine upon oath, or upon solemn affirmation in cases where an affirmation or declaration is allowed by- law instead of an oath, which oath or affirmation or declaration respectively shall be administered by them to all witnesses who shall be tendered to them for examination as well by any party alleging the truth of the charge or report as by the party accused, and to all witnesses whom they may deem it necessary to summon for the purpose of fully prosecuting the inquiry, and ascertaining whether there be sufficient prima facie ground for instituting further proceed- ings ; and notice of the time when and place where Arr. A.] 3^4 Vict, cap. 86. [39] every such meeting of the Commissioners shall he holden shall he given in writing under the hand of one of the said Commissioners to the party accused seven days at least before the meeting; and it shall be lawful for the party accused, or his agent, to attend the proceedings of the Commission, and to examine any of the witnesses; and all such preliminary pro- ceedings shall be public, unless, on the special appli- cation of the party accused, the Commissioners shall direct that the same or any part thereof shall be private; and when such preliminary proceedings, whether public or private, shall have been closed, one of the said Commissioners shall, after due considera- tion of the depositions taken before them, openly and publicly declare the opinion of the majority of the Commissioners present at such inquiry, whether there be or be not sufficient prima facie ground for insti- tuting further proceedings. V. And be it enacted, That the said Commissioners or any three of them shall transmit to the Bishop under their hands and seals the depositions of wit- nesses taken before them, and also a report of the opinion of the majority of the Commissioners present at such inquiry whether or not there be sufficient prima facie ground for instituting proceedings against the party accused ; and such report shall be filed in the registry of the diocese ; and that if the party accused shall hold any preferment in any other diocese or dioceses, the Bishop to whom the report shall be made shall transmit a copy thereof, and of the deposi- tions, to the Bishop or Bishops of such other diocese or dioceses, and shall also, upon the application of the party accused, cause to be delivered to such party a copy of the said report and of the depositions, on payment of a reasonable sum for the same, not exceeding twopence tor each iolio oi ninety words. Report of the Commissioners. [40] 3^-4 Vict, cap. 86. [App. A. Bishop may pronounce sentence, by consent, without fur- ther pro- ceedings. Articles and depositions to be filed. Service of copy of the Articles on the party. VI. And be it enacted, That in all eases where proceedings shall have been commenced under this Act against any such clerk, it shall be lawful for the Bishop of any diocese within which such clerk may hold any preferment, with the consent of such clerk and of the party complaining, if any, first obtained in writing, to pronounce, without any further pro- ceedings, such sentence as the said Bishop shall think fit, not exceeding the sentence which might be pro- nounced in due course of law ; and all such sentences shall be good and effectual in law as if pronounced after a hearing according to the provisions of this Act, and may be enforced by the like means. VII. And be it enacted. That if the Commissioners shall report that there is sufficient prima facie ground for instituting proceedings, and if the Bishop of any diocese within which the party accused may hold any preferment, or the party complaining, shall thereupon think fit to proceed against the party accused, articles shall be drawn up, and, when approved and signed by an Advocate practising in Doctors' Commons, shall, together with a copy of the depositions taken by the Commissioners, be filed in the registry of the diocese of such last-mentioned Bishop ; and any such party, or any person on his behalf, shall be entitled to inspect without fee such copies, and to require and have, on demand, from the Registrar (who is hereby required to deliver the same), copies of such depositions, on payment of a reasonable sum for the same, not ex- ceeding twopence for each folio of ninety words. VIII. And be it enacted, That a copy of the Articles so filed shall be forthwith served upon the party accused by personally delivering the same to him, or by leaving the same at the residence house belonging to any preferment holden by him, or if there be no such house, then at his usual or last App. A.] 3^4 Vict, cap. 86. [41] known place of residence ; and it shall not be lawful to proceed upon any such Articles until after the expi- ration of fourteen days after the day on which such copy shall have been so served. IX. And be it enacted, That it shall be lawful for the said last-mentioned Bishop, by writing" under his hand, to require the party to appear, either in person or by his agent duly appointed, as to the said party may seem fit, before him at any place within the diocese, and at any time after the expiration of the said fourteen days, and to make answer to the said Articles within such time as to the Bishop shall seem reasonable ; and if the party shall appear, and by his answer admit the truth of the Articles, the Bishop, or his Commissary specially appointed for that purpose, shall forthwith proceed to pronounce sentence there- upon according to the Ecclesiastical law. X. And be it further enacted, That every notice and requisition to be given or made in pursuance of this Act shall be served on the party to whom the same respectively relate in the same manner as is hereby directed with respect to the service of a copy of the Articles on the party accused. XI. And be it enacted, That if the party accused shall refuse or neglect to appear and make answer to the said Articles, or shall appear and make any answer to the said Articles other than an unqualified admission of the truth thereof, the Bishop shall proceed to hear the cause, with the assistance of three Assessors, to be nominated by the Bishop, one of whom shall be an Advocate who shall have practised not less than five years in the Court of the Arch- bishop of the province, or a Sergeant-at-law, or a Barrister of not less than seven years' standing, and another shall be the Dean of his cathedral church, or of one of his cathedral churches, or one of his Arch- Bishop may require the party to ap- pear before him ; and may pronounce Judgment on admission. How notice and requi- sition to be served. Proceedings on a hearing before the Bishop. [42] 3 Sf 4 Vict,, cap. 86. [Arr. A. Sentence of Bishop to be effectual in law. Bishop may send the cause to the Court of Appeal of the province. Judge of the Court may make Orders for expe- diting such suits. No Appeal from inter- locutory decree. Bishop em- powered to deacons, or his Chancellor ; and upon the hearing of such cause the Bishop shall determine the same, and pronounce sentence thereupon according- to the Ecclesiastical law. XII. And he it enacted, That all sentences which shall he pronounced by any Bishop or his Commissary in pursuance of this Act shall be good and effectual in law, and such sentences may be enforced by the like means as a sentence pronounced by an Ecclesiastical Court of competent jurisdiction. XIII. Provided always, and be it enacted, That it shall be lawful for the Bishop of any diocese within which any such clerk shall hold any preferment, or if he hold no preferment, then for the Bishop of the diocese within which the offence is alleged to have been committed, in any case, if he shall think fit, either in the first instance or after the Commissioners shall have reported that there is sufficient prima facie ground for instituting proceedings, and before the filing of the Articles, but not afterwards, to send the case by letters of request to the Court of Appeal of the province, to be there heard and determined according to the law and practice of such Court : Provided always, that the judge of the said Court may and he is hereby authorized and empowered from time to time to make any Order or Orders of Court for the purpose of expediting such suits or otherwise improving the practice of the said Court, and from time to time to alter and revoke the same : Provided also, that there shall be no appeal from any inter- locutory decree or order not having the force or effect of a definitive sentence, and thereby ending' the suit in the Court of Appeal of the province, save by the permission of the judge of such Court. XIV. And be it enacted, That in every case in which, from the nature of the offence charged, it shall App. A.] 3^4 Viet, cap. 86. [43] appear to any Bishop within whose diocese the party accused may hold any preferment that great scandal is likely to arise from the party accused continuing to perform the services of the Church while such charge is under investigation, or that his ministration will he useless while such charge is pending, it shall be lawful for the Bishop to cause a notice to he served on such party at the same time with the service of a copy of the Articles aforesaid, or at any time pending any proceedings before the Bishop or in any Eccle- siastical Court, inhibiting the said party from per- forming any services of the Church within such diocese from and after the expiration of fourteen days from the service of such notice, and until sentence shall have been given in the said cause : Provided, that it shall 'be lawful for such party, being the Incumbent of a benefice, within fourteen days after the service of the said notice, to nominate to the Bishop any fit person or persons to perform all such services of the Church during the period in which such party shall be so inhibited as aforesaid ; and if the Bishop shall deem the person or persons so nominated fit for the performance of such services he shall grant his licence to him or them accordingly, or in case a fit person shall not be nominated, the Bishop shall make such provision for the service of the Church as to him shall seem necessary; and in all such cases it shall be lawful for the Bishop to assign such stipend, not exceeding the stipend required by law for the curacy of the church belonging to the said party, nor exceeding a moiety of the net annual income of the benefice, as the said Bishop may think fit, and to provide for the payment of such stipend, if necessary, by sequestration of the living : Provided also, that it shall be lawful for the said Bishop at any time to revoke such inhibition and licence respectively. inhibit party accused from performing Services of the Church, &c. 3 . A.] 6 cj- 7 Vict;, rap. 38. merits, orders, and decrees of her Majesty in Council, or of the said Judicial Committee, or their Surrog-ates, in such causes of Appeal : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and tem- poral, and Commons, in this present Parliament assembled, and hy the authority of the same, That in any Appeal, application for prolongation or confir- mation of Letters Patent, or other matter referred or hereafter to be referred by Her Majesty in Council to the Judicial Committee of the Privy Council, it shall be lawful for Her Majesty, by Order in Council or special Direction under her royal sign manual, having regard to the nature of the said Appeal or other matter, and in respect of the same not requiring the presence of more than three members of the said Committee, to order that the same be heard, and when so ordered it shall be lawful that the same shall be accordingly heard by not less than three of the members of the said Judicial Committee, subject to such other rules as are applicable, or under this Act may be applicable, to the hearing and making report on Appeals and other matters by four or more of the members of the said Judicial Committee. II. And be it enacted, That in respect of all in- cidents, emergents, dependents, and things adjoined to, arising out of, or connected with Appeals from any Ecclesiastical Court, or from any Admiralty or Vice-Admiralty Court (save in giving a definitive sentence, or any interlocutory degree having the force and effect of a definitive sentence), the said Judicial Committee and their Surrogates shall have full power, subject to such rules, orders, and regulations, as shall from time to time be made by the said Judicial Com- mittee (with the approval of Her Majesty in Council), to make all such interlocutory Orders and decrees, D Appeals, &c, may lit' heard by not less than three Members of the Judicial Committee of the Privy Council under a special Order of Her Majesty. Powers of the Judicial Com- mittee and their Surro- gates in respect to Appeals from Ecclesiastical and Admiralty Courts. [50] 6 £ 7 Vict., cap. 38. [Apr. A. 2 & 3 Will. IV. c. 92. 3 & 4 Will. IV. c. 41. Who to be Surrogates and Examiners of the Judicial Committee in Ecclesiastical and Admiralty Appeals. Past Proceed- ings of Surro- gates of the Judicial Com- mittee valid, notwithstand- ing certain Informalities. and to administer all such oaths and affirmations, and to do all such things as may he necessary, or the Judges of the Courts helow appealed from or their Surrogates in the cases appealed, or the Judges of the Courts appealed to or their Surrogates, or the Lords Commissioners of Appeals in Prize Causes or their Surrogates, and the Judges delegate or their con- delegates under commissions of Appeal under the Great Seal in Ecclesiastical and Maritime Causes of Appeal, would respectively have had before an Act passed in the third year of the reign of His late Majesty, intituled " An Act for transferring the powers of the High Court of Delegates, both in Ec- clesiastical and Maritime Causes, to His Majesty in Council," and another Act passed in the following Session of Parliament, intituled " An Act for the better administration of Justice in His Majesty's Privy Council/' were passed. III. And be it enacted, that the Surrogates and Examiners of the Arches Court of Canterbury and the High Court of Admiralty of England, and such persons as shall from time to time be appointed Surrogates or Examiners of the said Courts, shall be by virtue of this Act Surrogates and Examiners re- spectively of the Judicial Committee of the Privy Council in all causes of Appeal from Ecclesiastical Courts and from any Admiralty or Vice-Admiralty Court. IV. And be it enacted, That all orders, decrees, and things heretofore done and expedited in such causes of Appeal by the Surrogates appointed by the said Judicial Committee of the Privy Council shall be deemed to be valid and effectual, if otherwise lawfully done and expedited, notwithstanding any informality or want of authority in respect to the same in the orders of His late Majesty in Council of Ait. A.] 6 Sf 7 Vict., cap. 38. [51] the fourth day of February, One thousand eight hundred and thirty-three, of the said Judicial Com- mittee of the fifth day of February, One thousand eight hundred and thirty-three, of the order of His late Majesty in Council of the ninth day of December, One thousand eight hundred and thirty-three, of an order of the said Judicial Committee of the tenth day of December, One thousand eight hundred and thirty- three, and an order of His late Majesty in Council of the twelfth day of August, One thousand eight hun- dred and thirty-five. V. And be it enacted, That subject to such rules and regulations as may from time to time be made by the said Judicial Committee with the approval of Her Majesty in Council, and save and in so much as the practice thereof may be varied by the said Acts of the reign of His late Majesty or by this Act, the said causes of Appeal to Her Majesty in Council shall be commenced within the same times, and conducted in the same form and manner, and by the same persons and officers, as if Appeals in the same causes had been made to the Queen in Chancery, the High- Court of Admiralty of England, or the Lords Com- missioners of Appeals in Prize Causes respectively ; and all things otherwise lawfully done and expedited in the said Causes of Appeal by the Registrar of the High Court of Admiralty of England, his deputy or deputies, in consequence of the passing of the said Acts of the reign of His late Majesty, shall be deemed to be valid to all intents whatsoever. VI. And whereas by the provisions of the herein- before secondly-recited Act it was enacted, that the said Judicial Committee should have and enjoy in all respects such and the same power of punishing con- tempts and of compelling appearances, and that His Majesty in Council should have and enjoy in all D 2 Manner of conducting Appeals before the Judicial Committee. So much of 2&3 Will. IV c. 93 as empowers the Judicial Com- mittee and His Majesty in Council to punish Con- [52] 6 cj- 7 Vict., cap. 38. [App. A. tempts, Sus., repealed. Punishing Contempts, compelling Appearances, enforcing Judgments, &c, in Causes of Appeal. respects such and the same powers of enforcing judgments, decrees, and orders (both in personam and in re///), as are given to any Court Ecclesiastical by an Act of Parliament passed in a Session of Par- liament of the second and third years of the reign of His Majesty King William the Fourth, intituled " An Act for enforcing the process upon contempts in the Courts Ecclesiastical of England and Ireland,'" and that all such powers as are given to Courts Ecclesiastical, if of punishing contempts, or of com- pelling appearances, should be exercised by the said Judicial Committee, and of enforcing decrees and orders should be exercised by His Majesty in Council, in such and the same manner as the powers in and by such Act of Parliament given, and should be of as much force and effect as if the same had been thereby expressly given to the said Committee or to His Majesty in Council ; be it enacted, That so much of the said Act as relates to the powers tkereby given to the said Judicial Committee and to His Majesty in Council, under the last-recited Act, shall be re- •pealed. VII. And be it enacted, That for better punishing' contempts, compelling appearances, and enforcing judgments of Her Majesty in Council, and all orders and decrees of the said Judicial Committee or their Surrogates, in all Causes of Appeal from Ecclesiastical Courts and from Admiralty or Vice-Admiralty Courts, Her Majesty in Council and the said Judicial Com- mittee and their Surrogates shall have the same powers, by attachment and committal of the person to any of Her Majesty's gaols, and subsequent dis- charge of any person so committed, as by any Statute, custom, or usage belong to the Judge of the High Court of Admiralty of England ; and the said Judicial Committee shall have the same immunities Ait. A.] G £ 7 Fie*., cop. 38. and privileges as ai'e conferred on the Judge of the High Court of Admiralty of England under an Act passed in the Fourth year of the reign of Her Majesty, intituled " An Act to improve the practice and extend the Jurisdiction of the High Court of Admiralty of England," as fully as if the same had been thereby expressly given to the said J udicial Committee. VIII. And be it enacted, That in all Causes of Appeal to Her Majesty in Council from Ecclesiastical Courts, and from Admiralty or Vice-Admiralty Courts, in which any person duly monished or cited or required to comply with any lawful order or decree of Her Majesty in Council, or of the said Judicial Committee or their Surrogates, and neglecting or refusing to pay obedience to such lawful order or decree, or committing any contempt of the process under the seal of Her Majesty in Ecclesiastical and Maritime Causes, shall reside out of the dominions of Her Majesty, or shall have Privilege of Peerage, or shall be a Lord of Parliament, or a Member of the House of Commons, it shall be lawful for the said Judicial Committee or their Surrogates to pronounce such person to be contumacious and in contempt, and after he shall have been so pronounced contumacious and in contempt to cause process of Sequestration to issue under the said seal of Her Majesty against the real and personal estate, goods, chattels, and effects, wheresoever lying within the dominions of Her Majesty, of the person against or upon whom such order or decree shall have been made, in order to enforce obedience to the same, and payment of the expenses attending such sequestration, and all pro- ceedings consequent thereon, and to make such further order in respect of or consequent on such sequestra- tion, and in respect to such real and personal estate, goods, chattels, and effects sequestrated thereby, as [53] 3 & 4 Vict, c. 65. Orders, &c. may be en- forced by Sequestration against certain persons pro- nounced con- tumacious and in Contempt. [54] 6 Sf 7 Vict., cap. 38. [App. A. Inhibitions, &o. to be in Her Majesty's name, and of force through- out the British Dominions. Monitions for Payments into the Registry of the Admiralty Court under Orders, &e. All Appeals from Eccle- siastical and Admiralty Courts may be referred to the Judicial Committee by an Order in Council. may be necessary, or for payment of monies arising from the same to the person to whom the same may be due, or into the Registry of the High Court of Admiralty and Appeals for the benefit of those who may be ultimately entitled thereto. IX. And be it enacted, That all inhibitions, cita- tions, monitions, and other instruments incidental to or arising out of such Causes of Appeal shall be issued in the name of Her Majesty, and under Seal of Her Majesty in Ecclesiastical and Maritime Causes, and shall be of full authority in all places throughout the dominions of Her Majesty. X. And be it enacted, That in all Appeals in Ecclesiastical and Maritime Causes to Her Majesty in Council it shall be lawful for Her Majesty in Council, and the said Judicial Committee or their Surrogates, at the petition of any person interested in the same, to decree monitions for the transmission of any sum or sums of money respecting which any order or decree may be made, or any questions may be depending arising out of such causes, and the pro- ceeds of all ships or vessels, goods and cargoes, respecting which any Appeals may be depending, into the Registry of the High Court of Admiralty and Appeals, for the benefit of the person or persons who may be ultimately entitled thereto, or for pay- ment thereof to the person to whom the same may be lawfully due. XI. And be it enacted, That it shall be lawful for Her Majesty, by Order in Council, to direct that all Causes of Appeal from Ecclesiastical Courts, and from the Vice-Admiralty Court of the Cape of Good Hope, and all Vice-Admiralty Courts to the westward thereof, in which the Appeal and Petition of Reference to Her Majesty shall have been lodged in the Registry of the High Court of Admiralty and Appeals within Arr. A.] 6 £ 7 Viet., cap. 38. [55] twelve calendar months from the giving or pro- nouncing of any order, decree, or sentence appealed from, and all Causes of Appeal from Vice-Admiralty Courts to the eastward of the Cape of Good Hope, in which the Appeal and Petition of Reference to Her Majesty shall have been lodged in the Registry of the High Court of Admiralty and Appeals within eighteen calendar months from the giving or pro- nouncing any order, decree, or sentence appealed from, shall be referred to the Judicial Committee of the Privy Council, and the said Judicial Committee and their Surrogates shall have full power forthwith to proceed in the said Appeals, and the usual inhi- bition and citation shall be decreed and issued, and all usual proceedings taken, as if the same had been referred to the said Judicial Committee by a special Order of Her Majesty in Council in each cause respectively. XII. And be it declared and enacted, That as well the costs of defending any decree or sentence appealed from as of prosecuting any Appeal, or in any manner intervening in any Cause of Appeal, and the costs on either side, or of any party, in the Court below, and the costs of opposing any matter which shall be referred to the said Judicial Committee, and the costs of all such issues as shall be tried by direction of the said Judicial Committee respecting any such Appeal or matter, shall be paid by such party or parties, person or persons, as the said Judicial Committee shall order, and that such costs shall be taxed as in and by the said Act for the better administration of justice in the Privy Council is directed respecting the costs of prosecuting any Appeal or matter referred by Her Majesty under the authority of the said Act, save the costs arising out of any Ecclesiastical or Maritime Cause of Appeal, which shall be taxed by Costs may be awarded by the Judicial Committee, and taxed. [56] 6^7 Vict., cap. 38. [Arr. A. Appointment of Registrar ami Assistant Registrar in Ecclesiastical and Maritime Causes. 3 .V -i Vict, c. G6. Custody of Records, &c. of the Court of Delegates and Appeals. Judicial Com- mittee em- powered to make Rules, Ac. respecting practice and mode of pro- ceeding in Appeals, &c. the Registrar hereinafter named, or his assistant Registrar. XIII. And be it enacted, That the Registrar of the High Court of Admiralty of England for the time being may be appointed by Her Majesty to be Registrar of Her Majesty in Ecclesiastical and Maritime Causes, and shall have power to appoint an Assistant Registrar, as provided by an Act passed in the fourth year of the reign of Her Majesty, intituled " An Act to make provision for the Judge, Registrar, and Marshall of the High Court of Admiralty of England," and shall, during his good behaviour, and while he shall be Registrar of the said High Court of Admiralty, hold his office of Registrar of Her Majesty in Ecclesiastical and Maritime Causes, and shall do all such things, and shall have the same powers and privileges in respect to the same, as belong to his predecessors in the office of Registrar of His Majesty in Ecclesiastical and Maritime Causes. XIV. And be it enacted, That all records, muni- ments, books, papers, wills, and other documents remaining in the Registry of the High Court of Admiralty and Appeals, appertaining to the late High Court of Delegates and Appeals for Prizes, shall be and remain in the custody and possession of the said Registrar of Her Majesty in Ecclesiastical and Maritime Causes. XV. And be it enacted, That it shall be lawful for the said Judicial Committee from time to time to make such rules, orders, and regulations respecting the practice and mode of proceeding in all Appeals from Ecclesiastical and Admiralty and Vice-Admi- ralty Courts, and the conduct and duties of the officers and practitioners therein, and to appoint such officer or officers as may be necessary for the execution of processes under the said Seal of Her Majesty, and Air. A.] 6 $ 7 Vict., cap. 38. in respect to all Appeals and other matters referred to them, as to them shall seem fit, and from time to time to repeal or alter such rules, orders, or regula- tions : Provided always, that no such rules, orders, or regulations shall he of any force or effect until the same shall have been approved by Her Majesty in Council. XVI. And whereas, in certain causes which were depending before the late High Court of Delegates, certain decrees or orders were made and interposed, and are not yet fully carried into effect : And whereas, in consequence of the death of the Judges Delegate, or some of them, named in the several Commissions under the Great Seal, such decrees or orders cannot be carried into effect; be it enacted, That all such causes of Appeal and Complaint which were depending before the High Court of Delegates, and in which any decree, order, or thing, for the reason lastly hereinbefore mentioned, is outstanding and not fully ended and determined, shall be transferred to the Judicial Committee of the Privy Council; and the said Judicial Committee shall take up and proceed with the said causes in the same manner as if the same had been originally Causes of Appeal and Complaint depending before the said Judicial Com- mittee. XVII. And be it enacted, That in this Act all words denoting a male person shall be taken to include a female also, and all words denoting one person or thing shall be taken to include also several persons or things, unless a contrary sense shall clearly appear from the context ; and that the words " Arches Court of Canterbury," used in this Act, shall be con- strued to extend to such Court as shall exercise the jurisdiction of the said Court or be substituted for the same ; and that wherever the words " Ecclesiastical [57] Proviso. Judicial Com- mittee of Privy Council to proceed with causes depending before late High Court of Delegates. Definition of Terms. [58] 6^7 Vict, cap. 38. Court" have been used in this Act, the same shall be construed to extend to such Court as shall exercise the jurisdiction or any part of the jurisdiction exercised by any Ecclesiastical Court or be substi- tuted for the same ; and the words " Ecclesiastical and Maritime Cause of Appeal " shall be construed to extend to causes appealed from Ecclesiastical Courts and such Court as shall exercise the jurisdiction or any part of the jurisdiction exercised by any Eccle- siastical Court or be substituted for the same. APPENDIX B. In I ft is Appendix are contained all Ecclesiastical Judgments delivered by the Judicial Committee of the Privy Council since those published tinder the authority of the Lord Bishop of London in 18G5. I. In the following case the Judicial Committee of Privy Council was constituted under the General Law, consequently no Spiritual person sat upon the tribunal. Mem. — The Judgment of the Master of the Rolls (who was himself a member of this Judicial Committee, and was present at the delivery of its judgment) subsequently given in the Rolls Court on Dr. Colenso's case, is printed here in parallel columns, in order that a convenient opportunity may be afforded for the exercise of the reader's ingenuity, should he see fit to make any endeavours towards reconciling the two judg- ments. For an exercise of the like ingenuity opportunities will also, in some instances, be afforded for comparing each of the judgments with itself. The reader, meanwhile, is requested to remember that the object of the first judgment was to disable the Letters Patent of the Crown as giving the Metropolitan of South Africa jurisdiction over Dr. Colenso — of the second to uphold those instruments as giving Dr. Colenso a right to the enjoyment of his pecuniary income. The arguments employed in both are highly interesting, the methods of reasoning employed still more highly instructive. Judgment of the Lords of the Judicial Committee of the Privy Council in the matter of the Pe- tition of Complaint of the Bight Rev. John William Colenso, D.D., Lord Bishop of Natal, deliverd 20th March, 1865. Present : — The Lord Chancellor (Lord Westbury) ; Lord Cranworth ; Lord Kings- down ; the Master of the Rolls (Sir John Romilly) ; Right Hon. Dr. Lushington. The Lord Chancellor, — The Bishop of Natal and the Bishop of Capetown (who are the Judgment of the Master of the Rolls in the case of " Colenso v. Gladstone and others," delivered 6th November, 1866. Lord Romilly, — This is a suit instituted by John William Colenso, claiming' [ 60 ] Judgments of the Judicial Committee [App. B. parties to this proceeding) are ecclesiastical persons who have been created Bishops by the Queen 1 , in the exercise of her authority as Sovereign of this realm and Head of the Esta- blished Church. These Bishops were conse- crated under mandate from the Crown by the Archbishop of Canterbury, in the manner pre- scribed by the law of England. They received and hold their dioceses under grants made by the Crown 3 . Their status, there- fore, both ecclesiastical and tem- poral, must be ascertained and defined by the law of England; and it is plain that their legal existence depends on Acts which have no validity or effect, except on the basis of the supremacy of the Crown. Further, their respective and relative rights and liabilities must be determined by the prin- ciples of English law applied to the construction of the grants to them contained in the Letters Patent; for they are the crea- tures of English law 3 , and depen- dent on that law for their exis- tence, rights, and attributes. h 1 Compare p. 77, col. 2, 1. 7. 2 Compare p. 77, col. 1, 1. 33. 3 Compare p. 77, col. 2, 1. 7. to be Bishop of Natal, against the Trustees of the Colonial Bishoprics Fund, praying that the annual income of the fund appropriated for the endowment of the Bishopric of Natal may be paid to him. The defendants do not deny that the plaintiff is in some sense Bishop of Natal : the defence is, in substance, that no legal Diocese of Natal has been created, that the title of Bishop of Natal conferred on the plaintiff is little more than nominal, that the funds entrusted to the defendants were subscribed for the endowment of a Bishopric in Natal, in which the Bishop was to preside over an Episcopal Church identical with the United Church of England and Ireland, and where the Bishop had legal jurisdiction according to the principles of the English Eccle- siastical Law. They contend that this object has wholly failed, for that by recent decisions of the Privy Council it has been established that the person on whom has been conferred the title of Bishop of Natal can exer- cise none of these functions. Such is a short outline of the defence pleaded by the defen- dants. It will be necessary for me, in order to arrive at a satis- Arr. B.] and Bolls Court in the Colenso Case. [61] We must treat the parties be- fore us as standing on this foun- dation, and on no other. The Letters Patent by which Dr. Gray was appointed Bishop of Capetown and also Metro- politan, passed the Great Seal on the 8th of December, 1853. These Letters Patent recited, among other things, that it had been represented to Her Majesty by the Most Reverend Father in God John Bird, by Divine Pro- vidence Lord Archbishop of Can-, terbury, that the then existing See or Diocese of Capetown was of inconvenient extent, and "that for the due spiritual care and superintendence of the religious interests of the inhabitants there- of, and for the maintenance of the doctrine and discipline of the United Church of England and Ireland within our said Colony of the Cape of Good Hope and its dependencies, and our Island of Saint Helena," it was desirable and expedient that the same should be " divided into three (or more) distinct and separate Sees or Dioceses, to be styled the Bishopric of Capetown, the Bishopric of Grahamstown, and the Bishopric of Natal — the Bishops of the said several Sees of Grahamstown and Natal and factory determination in this case, to consider, in the first place, what the duties and functions of a Bishop of the Church of England are. In the second place, to what extent the Letters Patent of the Crown have failed in enabling the plaintiff to perform these duties and to exercise these func- tions within the Colony of Natal, having regard to the law as de- clared by the decisions of the Privy Council in the case of " Long v. the Bishop of Cape- town," and in the case of the Petition of the Bishop of Natal against the sentence of the Bishop of Capetown, and which was re- ferred by Her Majesty to the Judi- cial Committee of the Privy Coun- cil ; and to arrive at a satisfactory conclusion on the subject, it will be necessary to examine what is the real position of these Churches in the Colonial depen- dencies on the Crown of England. In the third place, it will be necessary to ascertain the objects for which the funds in the hands of the defendants were contri- buted, the nature and extent of the contract entered into by the contributors of these funds with the Crown and with the plaintiff when he was appointed [62] their successors to be subject and subordinate to the See of Cape- town, and to the Bishop thereof and his successors, in the same manner as any Bishop of any See within the Province of Canterbury was under the authority of the Ai'chiepiscopal See of that Pro- vince and the Archbishop of the same;'" andtheLettersPatentcon- tained the following passages : — " And we do further will and ordain that the said Right Reve- rend Father in God, Robert Gray, Bishop of the said See of Cape- town, and his successors the Bishops thereof for the time being, shall be, and be deemed and taken to be, the Metropo- politan Bishop in our Colony of the Cape of Good Hope and its dependencies, and our Island of Saint Helena, subject, never- theless, to the general superin- tendence and revision of the Archbishop of Canterbury for the time being, and subordinate to the Archiepiscopal See of the Province of Canterbury : and wc will and ordain that the said Bishops of Grahamstown and Natal respectively shall be Suf- fragan Bishops to the said Bishop of Capetown and his successors. And we will and grant to the said Bishop of Capetown and his [App. B. Bishop of Natal, and whether, having regard to these matters, or any of them, the defendants are bound to withhold from the plaintiff or to pay to him the funds entrusted to their admi- nistration. The facts which raise these questions are very few, and not in dispute. They are as follows : — In 1841 the Archbishop of Can- terbury issued an invitation to the Clergy and laity to attend a meeting in April of that year, for the purpose of commencing the creation of a fund for the endowment of additional Bishops for the Colonies. On the 27th of April the meeting was held, and four resolutions were passed, the fourth of which was in these terms : — " 4th. That a fund be raised towards providing for the endowment of Bishoprics in such of the foreign possessions of Great Britain as shall be determined upon by the Archbishops and Bishops of the United Church of England and Ireland. That their lordships be requested to undertake the charge and application of the fund, and to name a treasurer or treasurers and such other officers as may be required for conducting the necessary details." On the Tuesday in Whitsun week following the Prelates met, according to the request so ex- Judgments of the Judicial Committee App. B.] and Bolls Court in the Colenso Case. [ 63 ] successors full power and autho- rity as Metropolitan of the Cape of Good Hope, and of the Island of St. Helena, to perform all functions peculiar and appro- priate to the office of Metropo- litan within the limits of the said Sees of Grahamstown and Natal, and to exercise Metro- politan jurisdiction over the Bishops of the said Sees and their successors, and over all Archdeacons, Dignitaries, and all other Chaplains, Ministers, Priests, and Deacons in Holy Orders of the United Church of England and Ireland within the limits of the said Dioceses. And we do by these presents give and grant unto the said Bishop of Capetown and his successors full power and authority to visit once in five years, or oftener, if occasion shall require, as well the said several Bishops and their successors, as all Dignitaries, and other Chaplains, Ministers, Priests, and Deacons in Holy Orders of the United Church of England and Ireland resident in the said Dioceses, for correcting and supplying the defects of the said Bishops and their successors, with all and all manner of visi- torial jurisdiction, power, and coercion. pressed, and undertook to take charge of the fund ; they pointed out the dependencies on the Crown where Bishoprics were the more immediately required; they appointed a Standing Com- mittee, consisting of the four Archbishops and five Bishops, to conduct the matter; and they concluded with stating that in no case ^should they proceed without the concurrence of Her Majesty's Government. Some years after this, on the 18th of May, 1849, the Standing Com- mittee passed a resolution by which it was declared that thenceforward all the Ai-ch- bishops and Bishops of the United Church of England and Ireland should form the Com- mittee, which was thence- forth to be called the Council for Colonial Bishoprics. Trea- surers were appointed for the administration of the fund to be raised for these purposes. The four first defendants on the record are the Treasurers to whom this administration is now confided. The mode in which new Bishoprics were created from time to time, as they were considered to be required, was as follows : — As soon as this Committee or Coun- cil for Colonial Bishoprics came [ 64 ] Judgments of the Judicial Committee [At?. B. "And we do hereby authorize and empower the said Bishop of Capetown and his successors to inhibit during 1 any such visita- tion of the said dioceses the ex- ercise of all or of such part or parts of the ordinary jurisdiction of the said Bishops, or their suc- cessors, as to him the said Bishop of Capetown or his successors shall seem expedient, agd during 1 the time of such visitation to exercise by himself or them- selves, or his or their Commis- saries, such powers, functions, and jurisdictions in and over the said dioceses as the Bishops thereof might have exercised if they had not been inhibited from exer- cising the same. " And we do further ordain and declare, that if any person against whom a judgment or de- cree shall be pronounced by the said Bishops or their successors, or their Commissary or Commis- saries, shall conceive himself to be aggrieved by such sentence, it shall be lawful for such person to appeal to the said Bishop of Cape- town or his successors, provided such appeal be entered within fifteen days after such sentence shall have been pronounced. " And we do give and grant to the said Bishop of Capetown to the conclusion that it would be expedient to found a Bishopric in any particular colony, and had ascertained that they pos- sessed funds sufficient in their opinion for the due maintenance of the Bishop of such intended Diocese, they communicated with Her Majesty's Government on the subject, whose assent being obtained, thereupon the Com- mittee or the Council entered into an agreement with the Crown, through her Ministers, that a certain annual income, then specified, should be appro- priated out of the proceeds of the Colonial Bishoprics Fund for the use of such Bishop. Her Majesty thereupon granted Her Letters Patent, purporting to create the Diocese required, and then appointed some Priest to be ordained and consecrated as the Bishop of such Colonial Diocese. It was in this manner that the Colony of the Cape of Good Hope and its dependencies were, in September, 1847, constituted a Bishop's See and Diocese. Early in March, 1853, the Council for Colonial Bishoprics resolved to obtain the creation App. B.] and Bolls Court in the CoJenso Case. [ 65 ] and his successors full power and authority finally to decree and determine the said appeals. " And we do further will and ordain 4 that in case any proceed- ing- shall be instituted against any of the said Bishops of Grahams- town and Natal ; when placed under the said Metropolitical See of Capetown, such proceedings shall originate and be carried on before the said Bishop of Capetown, whom we hereby authorize and di- rect t o take cognizance of the same. "And if any party shall con- ceive himself aggrieved by any judgment, decree, or sentence pronounced by the said Bishop of Capetown or his successors, either in case of such review or in any cause originally instituted be- fore the said Bishop or his succes- sors, it shall be lawful for the said party to appeal to the said Arch- bishop of Canterbury or his suc- cessors, who shall finally decide and determine the said appeal." The Letters Patent which con- stituted the See of Natal and ap- pointed the appellant to that See were sealed, and bear date on the 23rd of November, 1853, fifteen days before the grant of the Letters Patent to the Bishop of Capetown. The Letters Patent creating 4 Compare p. 105, 1. 25. of four new Bishoprics, one of which was to include the Eastern Province of the Cape Colony, and to be termed the Bishopric of Grahamstown, and another was to include the Province of Natal. Accordingly, for this purpose, on the 22nd of June, 1853, Mr. Hawkins, the Secre- tary of the Council, addressed a letter to the Secretary of State for the Colonies in the following terms : — " 79, Pall Mall, 22nd June, 1853. " My Lord Duke, — I am directed by the Council for Colonial Bishoprics to in- form you that they have appropriated and are prepared to invest a capital sum of 10,000/. for the endowment of the pro- posed Bishopric in the colony of Natal, and I am further to express a hope that measures may be taken without delay for the erection of the See in question. " I have, &c, " Ernest Hawkins. " To his Grace the Duke of Newcastle." In July, 1853, the Society for the Propagation of the Gospel suggested the propriety of in- creasing the endowment of these two Bishoprics, which was done by a resolution of the Council in these terms : — " That it was the opinion of the Society that it was extremely desirable that some assistance should be granted from the general funds of the Society towards in- creasing the income of the Bishops of Grahamstown and Natal during the first years of their Episcopate, and that, there- E [ 66 ] Judgments of the Judicial Committee [App. B. the See of Natal recited the Patent of September, 1847, which created the original Dio- cese of Capetown, and appointed Dr. Gray the Bishop thereof, and that he had since resigned the office of Bishop of Capetown, whereby the said See had be- come, and was then, vacant. The Patent also recited that it was expedient and desirable that the said Diocese should be divided into three or more distinct and separate Dioceses, to be styled the Bishoprics of Capetown, Grahamstown, and Natal, the Bishops of the said several Sees of Grahamstown and Natal to be subject and subordinate to the See of Capetown, and the Bishop thereof and his succes- sors, in the same manner as any Bishop of any See within the Province of Canterbury was under the authority of the Archiepiscopal See of that Pro- vince and the Archbishop of the same; and the Letters Patent proceeded to erect, found, make, ordain, and constitute the dis- trict of Natal to be a distinct and separate Bishop's See and Diocese, to be called the Bishopric of Natal. And after appointing 1 Dr. Colenso to be the Bishop of the said See, and granting 1 that fore, it be referred to the Standing Com- mittee to consider whether the sum of 300/. a year might properly be granted to the new Sees of Grahamstown and Natal for the term of five years." On the 23rd of November, 1853, the Letters Patent creating the See and Diocese of Natal issued under the Great Seal. They were to this effect : — They recited the Letters Patent creating' the See or Diocese of Capetown, the resignation of Dr. Gray, the Bishop whereby the See or Diocese had become va- cant ; they recited the expe- diency of dividing that See or Diocese into three distinct Sees, to be styled Capetown, Gra- hamstown, and Natal ; they then proceeded to constitute the district of Natal into a distinct and separate See and Diocese, and commanded the Archbishop of Canterbury to ordain and con- secrate the plaintiff to be Bishop of the said See and Diocese. The Letters Patent then pro- ceeded in these words : — " And we do hereby signify to the Most Reverend Father in God, John Bird, by Divine Providence Lord Archbishop of Canterbury, Primate of All England, and Metropolitan, the creation and constitution of the said See and Diocese, and our nomi- nation of the said John William Colenso, requiring, and by the faith and love whereby he is bound unto us commanding the said Most Reverent Father in God to Arr. B.] and Bolls Court in the Colenso Case. [ (57 ] the said Bishop of Natal and his successors should be a body cor- porate, the Letters Patent con- tained the following- passage : — " And we do further ordain and declare that the said Bishop of Natal and his successors shall be subject and subordinate to the See of Capetown, and to the Bishop thereof and his succes- sors, in the same manner as any Bishop of any See within the Province of Canterbury, in our Kingdom of England, is under the authority of the Archiepis- eopal See of that Province, and of the Archbishop of the same : and we do hereby further will and ordain that the said John William Colenso, and every Bishop of Natal, shall, within six months after the date of their respective Letters Patent, take an oath of due obedience to the Bishop of Capetown, for the time being, as his Metropolitan, which oath shall and may be admin- istered unto him by the said Archbishop, or by any person by him duly appointed or authorized for that purpose/' The Letters Patent then pro- ceeded to confer on the Bishop of Natal and his successors, Episcopal jurisdiction and autho- rity over all Rectors, Curates, E ordain and consecrate the said John Wil- liam Colenso to be Bishop of the said See and Diocese in manner accustomed, and diligently to do and perform all other things appertaining to his office in this behalf with effect. And we do ordain and declare that the said John William Colenso, so by us nominated and appointed, after having been ordained and consecrated as, aforesaid, may, by virtue of such appoint- ment and consecration, enter into and possess the said Bishop's See as the Bishop thereof without let or impediment from us, our heirs and successors, for the term of his natural life, subject nevertheless to the right of resignation hereinafter more par- ticularly expressed, saving nevertheless unto us, our heirs and successors, the power of altering from time to time, with the consent of the Archbishop of Canterbury for the time if the said See be vacant or otherwise with the consent of the said Archbishop and of the Bishop of the said See for the time being, the limits of the said Diocese or of the jurisdiction of the Bishop thereof." After this they constituted the Bishop of Natal a body cor- porate, and proceeded thus : — " And we do further ordain and declare that the said Bishop of Natal and his suc- cessors shall be subject and subordinate to the See of Capetown, aud to the Bishop thereof and his successors, in the same manner as any Bishop of any See within the Province of Canterbury in our Kingdom of England, is under the authority of the Archiepiscopal See of that Province and of the Archbishop of the same. And we do hereby further will and ordain that the said John William Colenso and every Bishop of Natal shall, within six months after the date of their respective Letters Patent, take an oath of due obedience to the Bishop of Capetown for the time being as his Metropolitan, which oath shall and 2 Judgments of the Judicial Committee [App. B. [68] Ministers, Chaplains, Priests, and Deacons within the Diocese, and directed that, if any party should conceive himself aggrieved by any judgment, decree, or sentence pronounced by the Bishop of Natal or his successors, he should have an appeal to the Bishop of Capetown, who should finally decide and determine the appeal. Under these Letters Patent, the appellant was consecrated on the 30th of November, 1853, and he took an oath of canonical obedience 5 to the Metropolitan Bishop of Capetown, which oath was administered to him by the Archbishop of Canterbury, and was in these words : " I, John William Colenso, Doctor in Divinity, appointed Bishop of the See and Diocese of Natal, do profess and promise all due re- verence and obedience to the Metropolitan Bishop of Cape- town and to his successors, and to the Metropolitan Church of St. George, Capetown." At this time there was not in reality any Metropolitan See of Capetown, or any Bishop thereof in exis- tence. These several Letters Patent were not granted in pursuance of any Orders or Order made by Compare p. 83, col. 1, 1. 13. may be ministered unto him by the said Archbishop, cr by any person by him duly appointed or authorized for that purpose ; and we do further by these presents ex- pressly declare that the said Bishop of Natal, and also his successors, having been respect ively by us, our heirs and successors, named and appointed, and by the said Arch bishop of Canterbury canonieally ordained and consecrated according to the form of the United Church of England and Ireland, may perform all the functions peculiar and appropriate to the office of Bishop within the said Diocese of Natal. And for a declaration of the spiritual causes or mat- ters in which the aforesaid jurisdiction may be more especially exercised, we do by these presents further declare that the aforesaid Bishop of Natal and his succes- sors may exercise and enjoy full power and authority, by himself or themselves, or by the Archdeacon or Archdeacons, or the Vicar-General or other officer or officers hereinafter mentioned, to give institution to benefices, to grant licences to officiate to all Rectors, Curates, Ministers, and Chap- lains of all the churches or chapels, or other places within the said Diocese, wherein divine service shall be celebrated according to the rites and Liturgy of the Church of England, and to visit all Rectors, Curates, Ministers, and Chaplains, and all Priests and Deacons in Holy Orders of the United Church of England and Ireland re- sident within the said Diocese, and also to call before him or them, or before the Arch- deacon or Archdeacons, or the Vicar-Ge- neral or other officer or officers hereinafter mentioned, at such competent days, hours, and places when and so often as to him or them shall seem meet and convenient, the aforesaid Rectors, Curates, Ministers, Chap- lains, Priests, and Deacons, or any of them, and to inquire as well concerning their morals as their behaviour in their said office and stations respectively, sub- ject nevertheless to such rights of review Ait. B.] and Bolls Court in the Colenso Case. [ 69 ] Her Majesty in Council, nor were they made by virtue of any Statute of the Imperial Parlia- ment, nor were they confirmed by any Act of the Legislat ure of the Cape of Good of Hope or of the Legislative Council of Natal. Previously to these Letters Patent being granted the District of Natal had been erected into a distinct and separate Govern- ment ; and, by Letters Patent granted by the Crown in 1847, it was ordained that it should have a Legislative Council which should have power to make such laws and ordinances as might be required for the peace, order, and good government of the dis- trict. With respect to the Cape of Good Hope, by Letters Patent, dated the 23rd of May, 1858, it was declared and ordained by Her Majesty, that there should be within the settlement of the Cape of Good Hope a Parliament which should be holden by the Governor, and should consist of the Governor, a Legislative Council, and a House of As- sembly, and that such Parlia- ment should have authority to make laws for the peace, welfare, and good government of the settlement. In the year 1863, certain and appeal as are hereinafter given and reserved." From the period when this took place the sum of 362/. 10*., being the interest of the 10,000/., reduced to that amount by the payment of two sums out of the Colonial Bishoprics Fund for the use of the Bishop of Natal, and the sum of 300/. additional, in pursuance with the resolution of the 2(j.th of July, 1852, making together the sum of 662/. 10*., have been regularly paid to the plaintiff up to and including the 5th of April, 186L Since that time this sum has been carried to a separate account. In May, 1863, a charge was made against the plaintiff that he had been guilty of false and erroneous teaching and doctrine by the publication of certain books within the Province of Capetown, and the plaintiff was cited to appear and answer the charge before the Bishop of Capetown on the 17th of No- vember, 1863. The plaintiff by his agent, Dr. Bleek, protested against the exercise of any jurisdiction over him by the Bishop of Cape- town, who nevertheless inves- [ 70 ] Judgments of the Judicial Committee [App. B charges of heresy and false doc- trine were preferred against the appellant before the Bishop of Capetown as Metropolitan, and upon these charges the Bishop of Capetown, claiming to exer- cise jurisdiction as Metropolitan, did, on the 16th day of Decem- ber, 1863, sentence, adjudge, and decree the appellant, the Bishop of Natal, to be deposed from his office as such Bishop, and*to be further prohibited from the exer- cise of any divine office within any part of the Metropolitan Province of Capetown. In pro- nouncing this decree, the Bishop of Capetown claimed to exercise jurisdiction as Metropolitan, by virtue of his Letters Patent, and of the office thereby conferred on him, and as having thereby ac- quired legal authority to try and condemn the appellant ; and the appellant protested against such assumption of jurisdiction. This sentence and decree of Dr. Gray, as Metropolitan, has been published and promulgated in the Diocese of Natal, and the Clergy of that Diocese have been thereby prohibited from yielding obedience to the appellant as Bishop of Natal. In this state of things three principal questions arise, and tigated the charges against the plaintiff as his Metropolitan, and pronounced a sentence of depri- vation against him on the 16th of December, 1863. On the 15th of April, 1864, the Bishop of Capetown wrote to the Secretary of the Council of Colonial Bishoprics, communi- cating the sentence he had pro- nounced, and requesting that they would cease to pay the interest of any endowment to the Bishop. The plaintiff presented a peti- tion of complaint and appeal to Her Majesty against the pro- ceedings and sentence of the Bishop of Capetown. Her Majesty referred the matter to the Judicial Committee of the Privy Council, who, after hearing Counsel for the plaintiff and for the Bishop of Capetown, made their report on the 20th of March, 1865, in which they re- ported their opinion to be that the sentence pronounced by the Bishop of Capetown was null and void. On this judgment being given, the plaintiff applied to the defendants, the Trustees, for payment to him of the stipend appropriated to the Bishop of Natal as theretofore. This the defendants have declined to do. App. B.] and Bolls Court in the Colenso Case. [ 71 ] have been argued before us : First, were the Letters Patent of the 8th of December, 1853, by which Dr. Gray was ap- pointed Metropolitan, and a Me- tropolitan See or Province was expressed to be created, valid and good in law ? Secondly, supposing the ecclesiastical rela- tion of Metropolitan and Suf- fragan to have been created, was the grant of coercive authority and jurisdiction expressed by the Letters Patent to be thereby made to the Metropolitan valid and good in law ? Thirdly, can the oath of canonical obedience taken by the appellant to the Bishop of Capetown, and his consent to accept his See as part of the Metropolitan Province of Capetown, confer any jurisdic- tion or authority on the Bishop of Capetown by which this sen- tence of deprivation of the Bishopric of Natal can be sup- ported ? With respect to the first cpues- tion, we apprehend it to be clear, upon principle, that after the establishment of an independent Legislature in the Settlements of the Cape of Good Hope and Natal, there was no power in the Crown by virtue of its Preroga- tive (for these Letters Patent They have also declined to pay the Bishoj) of Capetown his salary, and their reason for so doing is expressed in the 39th paragraph of their Answer, which, as it sets forth the ground of their defence very clearly and distinctly, I think it proper to read : — " We are advised that in accordance with the Judgment of the Judicial Com- mittee of the Privy Council, the said Let- ters Patent of the 23rd day of November, 1853, are to be considered null and void so far as they purport to create any Diocese, or to confer any legal jurisdiction or authority on the plaintiff, and that the plaiutiff has no power to exercise the functions of a Bishop in the Colony of Natal, or at all events has no jurisdiction as a Bishop in that colony, and is not himself subject, as by the said Letters Patent affecting to create the said Bishopric he was intended to be made subject, to the jurisdiction of the Bishop of Capetown as his Metropolitan, or to any other Spiritual or Ecclesiastical jurisdiction whatsoever ; and we submit that if such is the case, then the objects set forth in the declaration referred to in the third para- graph of the said Bill, and for which the funds hereinbefore mentioned were in- vested and subscribed, have not been obtained, which objects were in the first place to secure the pastoral care of a Bishop for the clergy and people of the Diocese of Natal, and in the second place to bring such Bishop under the jurisdiction of a Metropolitan, as in the Church at home, such Metropolitan being himself subject to the authority of the Archbishop of Canterbury, and we declare our belief that none of the contributors to the Colo- nial Bishoprics Fund intended to subscribe towards the support of a Bishop such as [ 72 ] Judgments of the Judicial Committee [App. B. were not granted under the pro- visions of any Statute) to esta- blish a Metropolitan See or Pro- vince 6 , or to create an Ecclesi- astical Corporation whose status, rights, and authority the colony could be required to recognize. After a Colony or Settlement has received legislative institu- tions, the Crown (subject to the special provisions of any Act of Parliament) stands in the same relation to that Colony or Settle- ment as it does to the United Kingdom. It may be true that the Crown, as legal head of the Church, has a right to command the conse- cration of a Bishop, but it has no power to assign 7 him any Diocese, or give him any sphere of action within the United Kingdom. The United Church of England and Ireland is not a part of the Constitution in any Colonial Settlement, nor can its autho- rities or those who bear office in it claim to be recognized by the law of the colony, otherwise than as the members of a voluntary association. The course which legislation has taken on this subject is a strong proof of the correctness of 6 Compare p. 110, I. 7. ' Compare p. 75, col. 2, 1. 12. the Judgment of the said Judicial Com- mittee of Her Majesty's Privy Council lias decided the plaintiff to be — that is to say, a Bishop without any jurisdiction over his clergy ou the one hand, and entirely inde- pendent of all Metropolitan jurisdiction on the other ; and as evidence thereof we especially crave leave to refer to a letter addressed by Miss Burdett Coutts to this defendant, the Archbishop of Canterbury, dated the 12th day of July, 1865, and re- ceived since this our answer was prepared, which letter we are ready to produce to the plaintiff or his solicitors." These are all the facts which I think are necessary to be re- ferred to in order to explain the character of the questions which are raised, and which I have to determine. Before proceeding to consider the propositions which, in my opinion, must be decided in order to arrive at the ultimate con- clusion whether the plaintiff is or is not entitled to the relief he asks, it will be convenient that I should state the questions which, in my opinion, I have not to consider ; and, first of all, I have not to consider whether the plaintiff, by false and erro- neous teaching or doctrine, or in other manner, has misconducted himself as a Bishop. I have nothing to do with the question whether his works have or have Arr. B.] and Bolls Court in the Colenso Case. these conclusions. In the year 1813 it was deemed expedient to establish a Bishopric in the East Indies (then under the Govern- ment of the East India Com- pany), and although the Bishop was appointed and consecrated under the authority of the Crown, yet it was thought necessary to obtain the sanction of the Legis- lature, and that an Act of Parlia- ment should be passed to give the Bishop legal status and au- thority. Accordingly, by Sta- tute, 53rd Geo. III. c. 155, sec. 49, it was enacted that in case it should please His Majesty, by his Royal Letters Patent, to erect, found, and constitute one Bishopric for the whole of the British territories in the East Indies and parts therein men- tioned, a certain salary should be paid to the Bishop by the East India Company, and by the 51st and 52nd sections it was enacted that such Bishop should not have or use any jurisdiction, or exer- ciseany Episcopal functions what- soever but such as should be li- mited to him by Letters Patent, and that it should be lawful for His Majesty by Letters Patent to grant to such Bishop such Ecclesiastical jurisdiction and the exercise of such Episcopal [73] not an heretical tendency. That question might have been raised, and might have had an impor- tant bearing on the cpuestion whether the plaintiff is or is not entitled to be paid the salary in question ; but that question not only is not raised, but it seems to have been on both sides care- carefully excluded from the pleading's. I must, therefore, in dealing with the questions in this case, proceed on the as- sumption, that neither in respect of morals, nor in respect of doc- trine, is there any thing to dis- qualify the plaintiff from acting as Bishop of Natal. In the second place, I have not to con- sider whether the Letters Patent creating the Diocese of Natal, and appointing the plaintiff the Bishop thereof, are or not wholly null and void 1 . That question may be tried before some other tribunal, or in some other cause in which their validity may be challenged, but it cannot be tried in this suit as at present con- stituted. What I have now to consider is the force and effect 2 of these Letters Patent, as between the trustees who obtained the grant, the plaintiff to whom it 1 Compare below, 1. 31. 2 Compare above, 1. 24. [ 74 ] Judgments of the Judicial Committee [Arp. B. functions within the East Indies and parts aforesaid as His Ma- jesty should think necessary for administering holy ceremonies, and for the superintendence and good government of the Minis- ters of the Church Establishment within the East Indies and parts aforesaid. Subsequently, in the year 1833, it was deemed right to found two additional Bishoprics, one at Madras, and the other at Bombay; and again, an Act of Parliament (3 & 4 Will. IV . c. 85) was passed, by the 93rd section of which it was enacted, in like manner, that the Crown should have power to grant such Bishops within their dioceses Ecclesiastical jurisdiction ; and it was also enacted and de- clared that the Bishop of Cal- cutta should be Metropolitan in India, and should have, as such, all such jurisdiction as the Crown should by Letters Patent direct, subject, nevertheless, to the ge- neral superintendence and revi- sion of the Archbishop of Can- terbury; and it was provided that the Bishops of Madras and Bombay should be subject to the Bishop of Calcutta as Metropo- litan, and should take an oath of canonical obedience to him. So again, when in 1824 a was made, and the members of the Church of England in the Colony of Natal, who have ac- cepted or submitted to it : and, in doing so, I have to consider whether, with reference to the law of England on this subject as expounded by the Judicial Committee of the Privy Council, these Letters Patent do not at- tempt to confer powers which the Crown has no legal power or authority to confer. Whether it is true, adopting the words of Dr. Gray, the Bishop of Cape- town, used by him in February, 1851, in one of the documents in evidence in this cause, that what- ever may be their general vali- dity, so far as their practical efficacy is concerned, " they are worth little more than waste paper." This distinction is one of importance, and must be borne constantly in mind in this case — the Letters Patent* of the Crown may be generally valid, and yet be ineffectual to confer any pri- vilege. The Sovereign may grant Letters Patent creating a new Bishopric in those places where it is not forbidden by statute — as, for instance, in one of the dependencies attached to the Crown, but the person ap- 3 Compare p. 77, col. 1, 1. 22. App. B.] and Bolls Court in the Colcnso Case. [75] Bishop was appointed in Ja- maica by Letters Patent con- taining- clauses similar to those which are found in the Letters Patent to the present appellant, it was thought necessary that the legal status and autho- rity of the Bishop should be confirmed and established by an Act of the Colonial Legislature. The consent of the Crown was given to this Colonial Act, which would have been an improper thing, as an injury to the Crown's prerogative, unless the Law advisers of the Government had been satisfied that the Colo- nial Statute was necessary to give full effect to the establish- ment of the Bishopric. The conclusion is further con- firmed by observing the course of Imperial legislation on the same subject, namely the creation of new Bishoprics in England. When four new Bishoprics were constituted by Henrv VIII., it appears to have been thought necessary, even by that absolute Monarch, to have recourse to the authority of Parliament, and the Act that was passed (viz. the 31st Hen. VIII. c. 9, which is not found in the ordinary edition of the Statutes) is of a singular character. After referring to the pointed Bishop may be prevented by law from performing any of the functions proper to be per- formed by a Bishop. I must therefore examine every part of these Letters Patent, in order to ascertain to what, if any, extent they confer powers or rights which cannot legally and validly be exercised or enforced. In other words, the Letters Patent creating 4 the See or Diocese of Natal, and appointing the plain- tiff the Bishop thereof, may validly make him a Bishop, and confer upon him certain powers" which he may legally exercise, and yet, at the same time, may also purport to give him other powers which he cannot legally exercise. If, however, this should turn out to be the fact, the circumstance that such excess of power is at- tempted to be conferred in and by the Letters Patent does not render them wholly invalid, or vitiate that portion of them which confers powers which may be legally exercised. The pur- port and effect of these Letters Patent I have already stated in detail : in order to determine their legal efficacy it is necessary to notice what it is they have 4 Compare p. 72, col. 1, 1. 20. 5 Compare p. 77, col. 1, 1. 33. [ 76 ] Judgments of the Judicial Committee [Arp. B. slothful and ungodly life which had been used among all those which bore the name of religious folk, and reciting that it was thought, therefore, unto the King's Highness most expe- dient and necessary that more Bishoprics, Collegiate and Cathe- dral Churches should be esta- blished, it was enacted, that His Highness should have full power and authority, from time to time, to declare and nominate by his Letters Patent or other writing to be made under his Great Seal, such number of Bishops, such number of cities, Sees for Bishops, Cathe- dral Churches, and Dioceses by metes and bounds, for the exer- cise and ministration of their Episcopal offices and administra- tion as shall appertain, and to endow them with such posses- sions after such manner, form, and condition as to His Most excellent wisdom shall be thought necessary and convenient. This Statute, which was re- pealed by the 1st & 2nd of Philip and Mary, c. 8, sec. 18, does not appear to have been re- vived. It is remarkable as granting power to nominate and appoint new Bishops as well as to create new Sees and Dioceses. So also in recent times the effected, and how far this falls short of what they have at- tempted to effect. They have appointed the plaintiff Bishop of Natal ; they have commanded the Archbishop of Canterbury to consecrate the plaintiff such Bishop ; the Archbishop of Can- terbury has accordingly done so. The first question is, What is the effect of this? It is not dis- puted, and indeed it could not be disputed, that the nomination by the Crown of the plaintiff and his consecration by the Arch- bishop of Canterbury have con- ferred upon him the title and dignity of a Bishop of the Church of England, and also that he is thereby invested with all the powers and authority incidental to the office of Bishop, so far as such powers and authority can be exercised without coercive legal jurisdiction over his clergy. In all the works that I have consulted on this subject the powers and authority of a Bishop are classed under three heads : — 1. Or do; 2. Jarisdictio; 3. Ad- ministratio rei familiaris. The Letters Patent of the Crown profess to give the two first of these powers 6 ; they do not pro- fess to give the third. 6 Compare next sentence. App. B.] and Rolls Court in the Colenso Case. [77] two new Bishoprics of Manchester and Ripon were constituted, and the new Bishops received Eccle- siastical jurisdiction under the authority of an Act of Parlia- ment. It is true that it has heen the practice for many years to insert in Letters Patent creating- Colonial Bishoprics, clauses which purport to confer Ecclesiastical jurisdiction ; but the forms of such Letters Patent were probably taken by the offi- cial persons who prepared them from the original forms used in the Letters Patent appointing the East Indian Bishops, without adverting to the fact that such last-mentioned Letters Patent were granted under the provi- sions of an Act of Parliament. We therefore arrive at the conclusion 8 that although in a Crown colony, properly so called, or in cases where the Letters Patent are made in pursuance of the authority of an Act of Parlia- ment (such for example as the Act of the 6th & 7th Vict. c. 13), a Bishopric may be constituted and Ecclesiastical jurisdiction conferred by the sole authority of the Crown, yet that the 9 Let- 8 Compare p. 74, col. 2, 1. 26. 9 Compare p. GO, col. 1, 1. 13; and p. 75, col. 2, 1. 16; and p. 110, 1. 7. The first, which is the power of Orders, he derives from conse- cration 7 , which, according to the doctrine of the Catholic Church of Christ, of which the Church of England is a branch, is a sacred authority, derived by direct de- scent from the Apostles 8 . By this power so conferred upon him he may transmit the spiritual power he possesses to others ; he can ordain Deacons and Priests ; he can consecrate and dedicate churches ; he can administer Confirmation. This is the first and most important class of powers which a Bishop possesses. These powers are not confined to this or that spot, but are uni- versal. They extend over the whole world. But this, it is alleged, makes him only a titular Bishop, and not a territorial Bishop, for that by this he has no see or diocese attached to his office. In order to consider the force and value of this remark it is desirable to ascertain the origin of the distinction between a titular and a territorial Bishop ; and here I may observe, to avoid misconstruction, that in the Letters Patent and in the Judg- ments delivered in the Privy " Compare previous sentence. 8 Compare p. 60, 1. 3, 30, and p. 99, 1. 24. [ 78 ] Judgments of the Judicial Committee [Arp. B. ters Patent of the Crown will not have any such effect or opera- tion in a colony or settlement which is possessed of an indepen- dent legislature. The subject was considered by the Judicial Committee in the case of " Long v. the Bishop of Capetown" (1 Moore's P. C. Cases, N. S. 411), and we adhere to the principles which are there laid down. The same reasoning is of course decisive of the second question, whether any jurisdiction was conferred by the Letters Patent. Let it be granted or assumed that the Letters Patent are suffi- cient in law to confer on Dr. Gray the Ecclesiastical status of Metropolitan, and to create be- tween him and the Bishops of Natal and Grahamstown the personal relation of Metro- politan and Suffragan as Eccle- siastics, yet it is quite clear that the Crown had no power to confer any jurisdiction or coercive legal authority 1 upon the Metropolitan over the Suf- fragan Bishops, or over any other person. It is a settled constitutional principle or rule of law, that al- though the Crown may by its 1 Compare p. 84, col. 2, I. 4, and 1. 12. Council, the words " See " and " Diocese " seem to be employed as equivalent expressions, al- though probably the word " See " has strictly a more confined meaning than the word " Dio- cese." The primary reason why a Diocese, or, in other words, a limited territorial space, was originally assigned to a Bishop was not, as I apprehend, because his functions or duties were con- fined to that space, but because, as the superintendence of the Bishop was found to be more effectual when exercised princi- pally over a limited extent, a territorial district termed a Dio- cese was assigned to him as the limits within which he should principally exercise his authority. Thus it is that England has been parcelled out into particular special Dioceses, not that each Bishop could not exercise his authority universally, but be- cause it was justly considered to be more beneficial to the cause of religion and morality that his superintendence and labours should be principally confined to a separate district, and that he should not actively interfere with those members of the Church who were not within its limits. The Bishops of the English Arp. B.] and Rolls Court in the Golenso Case. [ 79 ] Prerogative establish Courts to proceed according- to the Com- mon Law, yet that it cannot create any new Court to admin- ister any other law ; and it is laid down by Lord Coke in the !(h Institute, that the erection of a new Court with a new juris- diction cannot be without an Act of Parliament. It cannot be said that any Ec- clesiastical tribunal or jurisdiction is required in any colony or set- tlement where there is no Esta- blished Church 2 , and in the case of a settled colony the Ecclesiastical Law of England cannot, for the same reason, be treated as part of the law which the settlers carried with them from the mother country. So much of the Letters Patent now in question as attempts to confer any coercive legal juris- diction is also in violation of the law as declared and established by that part of the Act of the 16th Car. I. c. 11, which re- mains unrepealed by the 13th Car. II. St. II., c. 12. It may be useful to state this in detail. By the 16th and 17th sections of the 1 Eliz. c. 1, entitled "An Act to restore to the Crown the 1 Compare p. 81, col. 1, 1. 23, and p. 95, 1. 35. Church have equal and universal powers in this respect, but the ordination of Deacons and Priests, the consecration and dedication of churches, and the confirmation of young persons is (unless in exceptional cases) confined to the Bishop of the Diocese within which the exercise of the Epis- copal function is locally required. Thus it is that titular Bishops have become territorial Bishops, not because there was or is really, when unconnected with the State, any distinction between the two, but because it was found conducive to the good of the Catholic Church (using that word as I do throughout in its proper comprehensive classical mean- ing) , that the dut ies of the Bishop be limited practically to such a space as he could usefully super- intend. In addition to the power of Orders above mentioned, the Let- ters Patent purported to confer on the Bishop of Natal and his successors the Episcopal power Jurisdictionis — that is, the power and authority over all Rectors, Curates, Ministers, Chaplains, Priests and Deacons within the Diocese of Natal ; and the Letters [ 80 ] Judgments of the Judicial Committee [App. B. ancient jurisdiction over the Estate Ecclesiastical and Spiri- tual, and abolishing 1 all Foreign Powers repugnant to the same," it was enacted, that all usurped and foreign power and autho- rity, spiritual and temporal, should for ever, be extinguished within the Realm, and, that such jurisdictions, privileges, supe- riorities, and pre-eminences, sin- ritual and ecclesiastical, as by any spiritual or ecclesiastical power or authority, had thei - e- tofore been, or might lawfully be exercised or vised for the visitation of the Ecclesiastical state and persons, and for re- formation, order and correction of the same, and of all manner of errors, heresies, schisms, abuses, otTenees, contempts and enormities, should for ever be united and annexed to the Im- perial Crown of this Realm. And by the 18th section the Queen was empowered by Let- ters Patent to appoint persons to exercise, occupy, use, and execute all manner of Spiritual or Ecclesiastical jurisdiction with- in the realms of England and Ireland, or any other the domi- nions and countries of the Crown. Under this Statute the High Patent direct that if any person should conceive himself aggrieved by any judgment, decree, or sen- tence pronounced by the Bishop of Natal or his successors, he shall have an appeal to the Bishop of Capetown, who should finallj^ decide and determine the appeal. Beyond this, in the Letters Patent constituting the See of Capetown, a like right of appeal is pro- fessed to be given from the decision of the Bishop of Cape- town to the Archbishop of Canterbury, who is finally to decide and determine the appeal. It is on this passage in the Letters Patent that the question has arisen. The Judicial Com- mittee of the Privy Council have determined in the two cases — viz. "Long v. Bishop of Cape- town," and " In the matter of the Bishop of Natal," that " Al- though in a Crown colony pro- perly so called, or in cases where the Letters Patent are made in pursuance of an Act of Parlia- ment, a Bishopric may be con- stituted and Ecclesiastical juris- diction conferred by the sole authority of the Crown, yet that the Letters Patent of the Crown will not 9 have any such effect or operation in a colony or settle- 9 Compare p. 83, col. 2, 1. 46. Ait. B.] and Bolls Court in the Colenso Case. [ 81 ] Commission Court was erected, which was abolished by the 16th Car. Lb, 10. By the Act of the 16th Car. I. c. 11, the 18th section of the 1 Eliz. c. 1, was wholly repealed, and by the 4th section of the same Statute all Spiritual and Ecclesiastical persons or Judges were forbidden under severe pe- nalties to exercise any jurisdic- tion or coercive legal authority, an enactment which closed all the regular Established Eccle- siastical Tribunals; but by the 13th Car. II. c. 12, the ordinary Ecclesiastical jurisdiction and au- thority, as it existed before the year 1639, was with certain savings restored to the Arch- bishops and Bishops; and the Act of the 16th Car. I., except- ing what concerned the High Commission Court or the erec- tion of any such like Court by Commission, was repealed, but with a proviso that nothing- should extend or be construed to revive or give force to the enact- ments contained in the 18th section of the 1 Eliz. c. 1, which should remain and stand repealed. There is, therefore, no power in the Crown to create any new or additional Ecclesiastical tri- bunal or jurisdiction, and the ment which is possessed of an independent Legislature." In 1845 an independent Legis- lature was created in the colony of Capetown, and accordingly the authority professed to be exer- cised by the Bishop of Capetown over Mr Long, and also over the Bishop of Natal, was declared to be of no avail, and the sentences of deprivation were declared to be merely null and void. In 1847 an independent Legislature was created in the colony of Natal, and consequently, by the decision of the Judicial Com- mittee, no coercive jurisdiction, such as that professed to be given by the Letters Patent to the Bishop of Natal, can, it is said, legally be exercised by him. Assuming this to be so, the question I have therefore to consider is, how far this declara- tion of the law affects the status and position of the plaintiff as a Bishop of Natal. I use the word Natal purposely, because it is obvious that it does not in the slightest degree affect his status and position as Bishop of the Church of England generally, not being the Bishop of any ter- ritorial see or diocese — it does not, therefore, in the least degree affect the first class of his powers F [ 82 ] Judgments of the Judicial Committee [Ait. B. clauses which purport to do so, contained in the Letters Patent to the appellant and respondent, are simply void in law. No Me- tropolitan or Bishop in any co- lony having legislative institu- tions can, hy virtue of the Crown's Letters Patent alone (unless granted under an Act of Parliament, or confirmed by a Colonial Statute), exercise any coercive jurisdiction, or hold any Court or Tribunal for that pur- pose. Pastoral or spiritual authority may be incidental to the office of Bishop, but all jurisdiction in the Church, where it can be law- fully conferred, must proceed from the Crown, and be exer- cised as the law directs, and sus- pension or privation of office 3 is matter of coercive legal jurisdic- tion, and not of mere spiritual authority. Third. If, then, the Bishop of Capetown had no jurisdiction by law, did he obtain any by con- tract or submission on the part of the Bishop of Natal ? There is nothing on which such an argument can be at- tempted to be put, unless it be the oath of canonical obe- dience, taken by the Bishop of » Compare p. 107, 1. 20. — namely, that of Orders ; he can as lawfully and as conclusively ordain, confirm, and consecrate, as if the coercive jurisdiction could have been exercised by him. But then I come to inquire what are the other functions conferred upon him hy the Letters Patent which he cannot exercise ? The words of the Letters "Patent on this subject are as follows : — " And we do further, by these presents, expressly declare that the said Bishop of Natal, and also his successors, having been respectively, by us, our heirs and suc- cessors, named and appointed, and by the said Archbishop of Canterbury canonically ordained and consecrated according to the form of the United Church of England and Ireland, may perform all the functions peculiar and appropriate to the office of Bishop within the said Diocese of Natal. And for a declaration of the spiritual causes and matters in which the aforesaid jurisdiction may be more specially exer- cised, we do, by these presents, further declare that the aforesaid Bishop of Natal and his successors may exercise and enjoy full power and authority, by himself or themselves, or by the Archdeacon or Archdeacons, or the Vicar-General or other officer or officers hereinafter men- tioned, to give institution to benefices, to grant licences to officiate to all Rectors, Curates, Ministers, and Chaplains of all the churches or chapels, or other places within the said Diocese wherein divine service shall be celebrated according to the rites and Liturgy of the Church of England, and to visit all Rectors, Curates, Ministers, and Chaplains, and all Priests and Deacons in Holy Orders of the United Church of England and Ireland resident within the said Diocese, and also to call before him or App. B.] and Rolls Court in the Colenso Case. [ 83 ] Natal to Dr. Gray as Metropoli- tan. The argument must be, that both parties being aware that the Bishop of Capetown had no juris- diction or leg*al authority, as Me- tropolitan, the appellant agreed to give it to him by voluntary submission. But even if the parties in- tended to enter into any such agreement (of which, however, we find no trace"), it was not legally competent to the Bishop of Natal to give, or to the Bishop of Capetown to accept or exer- cise, any such jurisdiction. There remains one point to be considered. It was contended before us that if the Bishop of Capetown had no jurisdiction, his judgment was a nullity, and that no appeal could lie from a nullity to Her Majesty in Council. But that is by no means the consecpuence of holding that the respondent had no jurisdiction. The Bishop of Capetown, acting under the authority which the Queen's Letters Patent purported to give, asserts that he has held a Court of justice, and that with certain legal forms he has pro- nounced a judicial sentence, and that by such sentence he has de- * Compare p. 08, col. l, 1. 14. F them, or before the Archdeacon or Arch- deacons, or the Vicar-Geucral or other officer or officers hereinafter mentioned, at such competent days, hours, and places, when and so often as to him or them shall seem meet and convenient, the aforesaid Rectors, Curates, Ministers, Chaplains, Priests and Deacons, or any of t hem, and to inquire as well concerning' their morals as their behaviour in their said offices and stations respectively, subject nevertheless to sue!) rights of review and appeal as are hereinafter given and reserved. And for the better accomplishment of the purposes aforesaid, we do hereby grant and declare that the said Bishop of Natal and his suc- cessors may found and constitute one or more dignities in his cathedral church, and also one or more Archdeaconries within the said Diocese, and may collate fit and prope persons to be dignitaries of the said cathe- dral church, and one or more fit and proper persons to be Archdeacons of the said Archdeaconries respectively. Pro- vided always that such dignitaries and Archdeacons shall exercise such jurisdic- tion only as shall be committed to them by the said Bishop or his successors; and the said Bishop and his successors may also from time to time nominate and appoint fit and proper persons to be re- spectively the officers hereinafter men- tioned, that is to say, to be Vicar-General, Official Principal, Chancellor, or Rural Deans, and Commissaries, either general or special, and may also appoint one or more fit and proper persons to be Registrars and Actuaries. Provided always that the dig- nitaries and Archdeacons aforesaid shall be subject and subordinate to the said Bishop of Natal and his successors, and shall be assisting to him and them in the exercise of his and their Episcopal juris- diction aud functions." I have failed to discover any of the functions or powers ' so 1 Compare p. 80, col. 2, 1. 34. 2 [84] Judgments of the Judicial Committee [Ait. B. posed the Bishop of Natal from his office of Bishop, and de- prived him of his See. He also asserts that the sentence having 1 heen published in the Diocese of Natal, the clergy and inhabi- tants of that Diocese are thereby deprived of all Episcopal super- intendence. Whether these pro- ceedings have the effect which is attributed to them by the Bishop of Capetown, is a question of the greatest importance, and one which we feel bound to decide. "We have already shown that there was no power 5 to confer any jurisdiction on the respon- dent as Metropolitan. The at- tempt to give appellate jurisdic- tion to the Archbishop of Can- terbury is equally invalid. This important question can be decided 6 only by the Sovereign as head of the Established Church and depositary of the ultimate appellate jurisdiction. Before the Reformation, in a dispute of this nature, between two independent prelates, an ap- peal would have lain to the Pope; but all appellate authority of the Pope over members of the Esta- blished Church is by Statute vested in the Crown. 5 Compare 1. 8 of opposite column. 6 Compare p. 79, col. 1, 1. 15. enumerated which the Bishop of Natal is unable to exercise. No judgment of the Privy Council has deprived him of one of them 2 . The law as declared by the Privy Council's Judicial _ Committee leaves all these functions to the Bishop exactly as by the law of the Church of England they belong to that office. He may as Bishop visit; he may as Bishop call before him the ministers within his diocese 2 ; and he may inquire respecting their morals and behaviour, and the doctrines that they preach ; but the power which the Letters Patent seem to intimate an intention of con- ferringupon the Bishop — namelv, the power of enforcing obedience to his orders in the performance of these duties, and the power of removing any obstruction which may be interposed to prevent his performing any of the functions of a Bishop — this power is not given to him personally, or to any officers of his or dependent on him. Is he therefore left powerless, and can any one with impunity resist his authority ? This is not so ; but to enforce obedience to his orders, or to remove obstructions interposed to prevent his performing his 9 Compare p. 78, col. 1, 1. 29. App. B.] and Rolls Court in the Golenso Case. [ 85 ] It is the settled prerogative of the Crown to receive a2)peals in all Colonial causes, and by the 25th Hen. VIII. c. 19 (by which the mode of the appeal to the Crown in Ecclesiastical causes is directed), it is by the 4th section enacted, that " for lack of justice at or in any of the Courts of the Archbishops of this Realm, or in any of the King's dominions, it shall be lawful to the parties grieved to appeal to the King's Majesty in the King's Court of Chancery," an enactment which gave rise to the Commission of Delegates, for which this tribunal is now substituted. Unless a controversy such as that which is presented by this appeal and petition falls to be determined by the ultimate juris- diction of the Crown, it is plain that there would be a denial of justice, and no remedy for great public inconvenience and mis- chief. It is right to add, al- though unnecessary, that by the Act 3rd & 4th Will. IV. c. 41, which constituted this tribunal, Her Majesty has power to refer to the Judicial Committee for hearing or consideration any such other matters whatsoever as Her Majesty shall think fit, functions, he must have re- course to the Civil tribunals which administer the law of the colony, before which tri- bunals the person who resists the acts of the Bishop may con- test the validity or legality of the acts intended to be done by the Bishop or of the orders given him. In other words, the Bishop of Natal can exercise all the duties and functions and perform all the acts which belong to a Bishop within the diocese of Natal, that he could if he were the Bishop of an English diocese, with this ex- ception, that he cannot enforce the execution of these orders without having recourse to the Civil tribunals for that purpose. The Letters Patent, therefore, are inoperative in that respect; they are also inoperative in this further matter, that they purport to give an appeal to the Bishop of Capetown, and they also pur- port to give an appeal from the Bishop of Capetown to the Arch- bishop of Canterbury, to whom no such appeals by law can lie, so as to enable the Bishop of Capetown or the Archbishop of Canterbury to enforce the co- [ 86 ] Judgments of the Judicial Committee [Ait. B. and this Committee is thereupon to hear or consider the same, and to advise Her Majesty thereon ; and that on the 10th of June, 1864, it was ordered by Her Majesty in Council that the pe- tition and supplemental petition of the appellant should be, and the same were, thereby referred to this Committee, to hear the same and report their opinion thereupon to Her Majesty. Their Lordships, therefore, will humbly report to Her Majesty their judgment and opinion that the proceedings taken by the Bishop of Capetown, and the judgment or sentence pronounced by him against the Bishop of Natal, are null and void in law. ercive jurisdiction in these mat- ters which the Bishop of Natal was unable to exercise. It is not that there is no appeal in such matters, but the appeal, such as it is, the extent of which I shall presently point out, lies to the Civil tribunal, and from the Civil tribunal in the colony to the Sovereign herself in Council, who, with the assistance of her Councillors, will determine the question between the parties. The more I have considered this question, which I have done very carefully, the more I have found myself at a loss to understand why, the duties and functions of the Bishop l'emaining in every respect the same, the fact that in order to enforce obedience to his orders and to remove obstructions interposed to impede his action, he must have recourse to the secular arm instead of enforcing it by his own power — that is, by officei"s of his own court— in any degree affects his status or position as a Bishop. He is a titular Bishop all the world over, he is a territorial Bishop within his See or Diocese of Natal, and with the assistance of the secular tribunals he can per- form all the acts and duties which belong to the office of a Bishop according to the doctrine of the Church of England. It is clear that this was all that was included in the word Bishop from the earliest institution of that office down to the time when, the Christian religion having become the religion of the State, co- ercive jurisdiction was conferred on the prelates of the Christian Church. Apr. B.] and Bolls Court in the Colenso Case. [ 87 ] It is, in my opinion, impossible correctly to assert that this necessity of resorting 1 to the Civil tribunal, instead of enforcing obedience by the jurisdiction of the Church itself, can annihilate a see or make it cease to be a legal diocese. On the contrary, I believe that when a careful inquiry is made into what the difference is that lies between them, it will be found that the law, as pro- nounced by the Judicial Committee, is likely to afford greater stability and unity to the Church of England in her colonial dependencies than if the law had been as contended for by the Bishop of Capetown. In the one case, if the Letters Patent effected all that they were originally supposed to effect, the law on the sub- ject would be declared by one prelate of the Church of England with an appeal to another prelate, and possibly finally to the Primate of All England, where the matter would end. In the other case, the law would be declared by a Civil tribunal with an appeal to the Sovereign in Council, where also the matter would end. The law, it is important to observe, is and must be the same in both cases, and ought to be similarly administered, and that law is the law of the doctrines and ordinances of the Church of England. The former are fixed and immutable, the latter are equally fixed until altered by statute. This law, whether it be enforced by the Eccle- siastical or by the Civil tribunal, is the same, and should receive the same construction, and when ambiguous the same interpretation ; but if it be administered by different tribunals, a variation and discordance will arise which would be much to be deplored. In order satisfactorily to explain my meaning in this matter, it is necessary to point out what I consider to be the real position of the Church of England in these colonies. It is declared in the Judgment of the Judicial Committee that the Church of England in the colonies which have an established Legislature and no Church established by law is to be regarded in the light of a voluntary association, " in the same situation with any other religious body, in no better but in no worse position, and the members may adopt, as the members of any other communion may adopt, rules for [88] Judgment of the Bolls Court [Arp. B. enforcing discipline within their body which will be binding on those who expressly or by implication have assented to them." These expressions have created some alarm, which has, as it appears to me, arisen from an imperfect apprehension of what is meant by them. Th»y do not mean, as some persons seem to have supposed, that because the members of such a Church constitute a voluntary association they may adopt any doctrines and ordinances they please, and still belong to the Church of England. All that really is meant by these words is, that where there is no State religion established by the Legislature in any colony, and in such a colony is found a number of persons who are members of the Church of England, and who establish a Church there with the doctrines, rites, and ordinances of the Church of England, it is a part of the Church of England, and the members of it are, by implied agree- ment, bound by all its laws. In other words, the association is bound by the doctrines, rites, rules, and ordinances of the Church of England, except so far as any statutes may exist which (though relating to this subject) are confined in their operation to the limits of the United Kingdom of England and Ireland. Accordingly, upon reference to the Civil tribunal in the event of any resistance to the order of the Bishop in any such colony, the Court would have to inquire, not what were the peculiar opinions of the persons associated together in the colony as members of the Church of England, but what were the doctrines and discipline of the Church of England itself, obedience to which doctrines and discipline the Court would have to enforce. This is the more important to be borne in mind, because it is the want of duly considering this that has given rise not only to much misapprehension on this subject, but also, as I conceive, to still more serious results. The rule by which the Courts are bound is this. If any number of persons, either in England or in any of its dependencies, associate them- selves together, professing to follow a particular religion, not being the religion of the State, the Court must, when applied to, inquire into what the doctrines and discipline of that religion are, and must then enforce obedience to them accordingly. Thus, if they be Pres- byterians, or Independents, or Wesleyans, or Baptists, or the like, Arr. B.] in the Colenso Case. [89] the Court ascertains as a matter of fact, upon proper evidence, what the doctrines, ordinances, and rules are by which the particular sect of religionists is bound, and enforces obedience to them accordingly. It is needless to cite authorities to establish this proposition. The books abound with decisions on the subject, all of the same character, ninny of which have been cited and referred to in the case of" Long v. Bishop of Capetown " and in the present case, and are familiar to every one conversant with this subject. Thus to apply that prin- ciple to the present case in illustration of the observations I am now making-, and explanatory of the passage I have read from the judgment in " Long* i\ Bishop of Capetown," if a class of persons in one of the dependencies of the English Crown having an established Legislature should found a Church, calling themselves members of the Church of England, they would be members of the Church of England, they would be bound by its doctrines, its ordi- nances, its rules, and its discipline, and obedience to them would be enforced by the Civil tribunals of tlie colony over such persons ; but if a c ass of persons should in any colony similarly circumstanced call themselves by any other name, such as, for instance, the Church of South Africa, then the Court would have to incpuire, as a matter of fact upon proper evidence, what the doctrines, ordinances, and discipline of that Church were ; and when these were made plain, obedience to them would be enforced against all the members of that Church. But the fact of calling themselves in communion with the Church of England would not make such a Church a part of that Church of England, nor would it make the members of that Church members of the Church of England. If they adopted its creed and doctrines, but repudiated a part of its rules and ordi- nances, they would be bound by those which they had adopted, and not by those which belonged to the Church of England, but which they had rejected. It would, however, be incumbent upon them fully and plainly to set forth what their rules and ordinances were, and who accepted them, in order that this might prevent doubt when the Courts of Law were called upon to enforce obedience to these rules and ordinances. The whole of what I am now statin"- is made very distinct and clear by the whole of the decision of the [ 90 ] Judgment of the Bolls Court [App. B. J udieial Committee of the Privy Council in the case of " Long 1 v. Bishop of Capetown." In that case the Judicial Committee held that Mr. Long had hound himself to the doctrines and discipline of the Church of England, and if the obedience required of him by the Bishop of Capetown had been obedience to the rides and ordinances required by the Church of England, that obedience would have been enforced by the Judicial Committee. Accordingly they inquired into that subject, and, having done so, held that the obedience required by the Bishop of Capetown was not in accordance with the rules and ordinances of the Church of England, and that Mr. Long was justified in resisting the summons of the Bishop. This was, in fact, the real issue between the Bishop of Capetown and Mr. Long, and the point is put distinctly and, as I apprehend, quite correctly by Mr. Long, who says in his letters of the 29th of November and 3rd of December, 1860, that a declaration by persons that "they are members of the Church of the Diocese of Capetown, in union and in full communion with the United Church of England and Ireland, and belonging to no other body, is, in his opinion, a declara- tion of virtual secession from the Church of England/'' And in another place Mr. Long states that he is a member of the Church of England, and not a member of a Church in union and full com- munion with the Church of England, which are, in his opinion, two separate and distinct things. The distinction is plain and obvious. Any Church established by voluntary association may call itself in union and in full communion with any other Church. A Lutheran Church established in South Africa might call itself in union and full communion with the Church of England, but the truth of the assertion is a distinct matter. But if certain persons constitute themselves a voluntary association in any colony as members of the Church of England, then, as I apprehend, they are strictly brethren and members of that Church, though severed by a great distance from their native country and their parent Church. They are bound by the same doctrines, the same rules, ordinances, and discipline. If any recourse should needs be had to the Civil tri- bunals, the questions at issue must be tried by the same rules of law which would prevail if the question were tried in England ; — with App. B.] in the Colenso Case. [91] this exception only, that the tribunal would probably be different, and that as the statutes which constitute certain Ecclesiastical tribunals in England do not extend to the colonies, the question would have to be determined by the ordinary Civil courts which administer justice in the colonies. It is on this principle which I have endeavoured to enunciate that the Judicial Committee of the Privy Council investigated and determined the case of " Long r. Bishop of Capetown." In the carefully considered Judgment delivered on that occasion, no suggestion is made that the Church established at Capetown, over which Dr. Gray presided as Bishop, is not a part of the Church of England, nor does any doubt seem to have been entertained by the Court on that point. On the contrary, the whole Judgment pro- ceeds on the assumption, and is based on the foundation, that the Church so established is a portion of the Church of England. That Judgment states that the Church of England, in places where there is no Church established by law, is in the same situation with any other religious body, thereby affirming that the Church of England may extend to and have branches in places where it is not esta- blished by law. The Judgment proceeds to state that, where in such places tribunals are constituted by the members of the Church for the purpose of determining whether the members of that Church there residing have violated any of its rules in order to enforce the decisions of any such tribunals, recourse must be had to the Courts established by law, and such Courts will give effect to their decisions when the tribunal which pronounced it has acted "within the scope of its authority, has observed such forms as the rules require, if any forms be prescribed, and if not, has proceeded in a manner consonant with the principles of justice." The Judgment then proceeds thus : — " We think that the acts of Mr. Long must be construed with reference to the position in which he stood as a clergyman of the Church of England, towards a law- fully appointed Bishop of that Church, and to the authority known to belong to that office in England ; and we are of opinion that, by taking the oath of canonical obedience to his Lordship, and accepting from him a licence to officiate, and have the cure of [92] Judgment of the Rolls Court [App. B. souls within the parish of Mowbray, subject to revocation for just cause, and by ac- cepting the appointment to the living of Mowbray under a deed which expressly con- templated as one means of avoidance the removal of the incumbent for any lawful cause, — Mr. Long did voluntarily submit himself to the authority of the Bishop to such an extent as to enable the Bishop to deprive him of his benefice for any lawful cause — that is, for such cause as (having regard to any differences which may arise from the circumstances of the colony) would authorize the deprivation of a clergyman by his Bishop in England. We adopt the language of Mr. Justice Watermeyer, p. 81, that 'for the purpose of the contract between the plaintiff and defendant, we are to take them as having contracted that the laws of the Church of England shall, though only as far as applicable here, govern both.' " Having done this, their Lordships proceed to consider whether, according to tBe law of the Church of England, Mr. Long had so acted as to justify his suspension and subsequent deprivation, and they determine that he had not so acted. The manner in which they characterize the assembly convened by the Bishop is as follows : — " It was a meeting of certain persons, both clergy and laity, either selected by the Bishop, or to be elected by such persons and in such manner as he had prescribed, and it was a meeting convened, not for the purpose of taking counsel and advising together what might be best for the general good of the society, but for the purpose of agreeing upon certain rules, and establishing in fact certain laws, by which all members of the Church of England in the colony, whether they assented to them or not, should be bound. "Accordingly, the Synod, which actually did meet, passed various Acts and constitu- tions purport ing, without the consent either of the Crown or of the Colonial Legislature, to bind persons not in any manner subject to its control, and to establish Courts of Justice for some temporal as well as spiritual matters, and, iu fact, the Synod assumed powers which only the Legislature could possess. There can be no doubt that such acts were illegal." In what sense illegal ? Not certainly illegal if all the members of that Church had previously agreed to be bound by such an assembly, but illegal because not justified by the discipline and ordinances of the Church of England, by which alone Mr. Long had agreed to be bound. This decision, therefore, is far from deciding that the Bishop in these colonies has, by virtue of his appointment by the Letters Patent, no jurisdiction and no tribunal : what it does decide is that the tribunal of the Bishop is a. forum domesiicum, and not a State tribunal. That it is not a Court of the colony of the Cape of Good Hope exercising authority by reason of the Church of England being tbe religion of the State of the colony of the Arp. B.] in the Golenso Case. [93] Cape of Good Hope, but that it is a domestic tribunal of the Bishop, the essence of which is that the jurisdiction is only over those persons who assent to it, and the jurisdiction is what is usually called " consensual " jurisdiction. All the persons profess- ing to be members of the Church of England are, by this decision, held to have assented to the jurisdiction of this forum so far as the Bishop does not overstep his authority — that is, the authority of a Bishop of the Church of England to the full extent that such authority is not derived from that religion being the religion of the State, or from statutes which have operation solely within the United Kingdom. It was because the Bishop had exceeded that authority, and because the Lords of the Privy Council could not find any thing in the evidence to show that Mr. Long had assented to any thing more than this — that they declared the sentence of the Bishop of Capetown to be null and void. It is neither necessary nor desirable that I should attempt to define the limits of the authority which a Bishop of the Church of England could exercise in such his forum domes tieum, or distinguish it from those further and additional powers which can be exercised within the United Kingdom, which are derived from the Church of England being therein the religion of the State, and from those which are also derived from the provisions of statutes which have force only within that kingdom. One distinction, however, is obvious and important. A Bishop in England is the Bishop over all the inhabitants within the diocese ; a Bishop in the colony is Bishop only over all the members of the Church of England resident within the colony. Whenever the question arises, as it did in " Long v. Bishop of Capetown/' — viz. whether the act done by the Bishop lies within such limited scope of his authority, that ques- tion must then be decided ; and accordingly that question was in fact decided in that case. No such question as that is now before me ; all that I have to do on the present occasion is to explain how that judgment, together with the judgment in the matter of the Bishop of Natal, bears on the question before me, which is whether [94] Judgment of the Rolls Court [Apr. B. the province of Natal has been made a Diocese, and whether the plaintiff is Bishop of that Diocese, and as such entitled to the benefit of the endowment made for such a Diocese. On this subject an expression has been made use of in the Judgment given in the latter case before the Privy Council, which is, I think, liable to be misunderstood, and which it is essential to notice. It is there stated (p. 14S) to this effect : — The Lord Chancellor who delivered | the Judgment having observed that, after a colony has received legislative institutions, the Crown stands in the same relation to that colony as it does to the United Kingdom, proceeds thus — " It may be true that the Crown, as legal head of the Church, has a right to command the consecration of a Bishop, but it has no power to assign him any diocese or give him any sphere of action within the United Kingdom." This sentence taken literally, that is, if the words United Kingdom refer to the word diocese, is strictly correct ; but if, as some have supposed, and such I consider to have been the meaning of the Court from the previous passage, it is construed to mean that the Crown can create no see or diocese in any such a colony as that of Natal or Capetown, this, I apprehend, is not the meaning of the passage, and if it were it would be erroneous. To be properly understood, the passage must be taken in conjunction with the whole context. It is not thereby intended to state that the Crown is unable to appoint a person a Bishop and direct him to exercise his functions in a colony dependent on the Crown to the extent specified in the Judgment of " Long v. Bishop of Capetown" within certain defined limits where these functions do not interfere with any other see or diocese lawfully created. Nor is it intended to state that the territory, the limits of which are so defined, would not constitute a see or diocese properly so called ; but it is thereby intended to state that the Crown has no power to constitute a see or diocese analogous to a see or diocese within the limits of the United Kingdom of England and Ireland, investing the Bishop with coercive jurisdiction. For instance, that the Crown could no more have created the see of Natal, and appointed to it a Bishop with all the coercive powers of an English Bishop over all the inhabitants in that colony, than the Crown could have created the Diocese of Ripon Arr. B.] in the Colenso Case. [ 95 ] or the Diocese of Manchester and have appointed Bishops to preside over such dioceses without the authority of an Act of Parliament. That this is the limited meaning of the passage is plain from the whole Judgment. Were it to receive a wider construction it would not be in accordance with the Judgment in "Long v. Bishop of Capetown," which it adopts and professedly follows. The decision "in the matter of the Bishop of Natal " did not decide that the Bishop of Capetown had not, as Bishop of the See or Diocese, any forum or tribunal within which he could lawfully exercise his authority as Bishop of that Diocese, but that it was a forum domesticum, which did not warrant the proceedings he instituted against the Bishop of Natal, and that there was nothing in his acts to give the consensual jurisdiction essential to any such forum, and further that, con- sistently with his duty as Bishop of Natal — that is, as a Bishop of the Church of England — he could not give any such consensual jurisdiction. In fact, it is not the coercive jurisdiction which con- stitutes the see or the diocese. The early Bishops of the Christian Church had a see or diocese as completely before as they had after the Christian Church had become the religion of the State, although the foi'mer could only exercise jurisdiction over the mem- bers of the Church of Christ who submitted to their jurisdiction, while the latter possessed coercive power derived from the Christian religion having become the Church of the State. When this ambiguity is removed, the two Judgments are identical. The importance of them, and more especially of that of " Long v. Bishop of Capetown," which expounds the principle of the law, and particularly the importance of the passages to which I have referred in relation to the status of the plaintiff in the district of Natal, is this : — It shows that the district or colony of Natal is a district presided over by a Bishop of the Church of England which is pro- perly termed a See or Diocese — that the Ministers, Deacons and Priests, officiating within that district, and also all the laymen pro- fessing to be members of the Church of England, constitute not a Church in Natal in union and in full communion with the Church of England, but a part of the Church of England itself 3 , and that all 3 Compare p. 79, col. 1, h 17. [ 96 ] Judgment of the Rolls Court [App. B. the Ministers, Priests and Deacons, there officiating', and all the persons composing the several flocks, are members and brethren of the Church of England in the strict sense of the term. The con- sequence is that they have in all matters Ecclesiastical voluntarily submitted themselves to the control of the Bishop of Natal so long- as it is exercised within the scope of his authority according to the principles prescribed by the Church of England. If, however, any sentence of the Bishop of Natal should be con- tested, recourse must be had to the Courts established by law, which will enforce that sentence if pronounced within the scope of the legal authority of the Bishop, and if he has, in arriving at that sentence, proceeded in a manner consonant with the principles of justice, in so doing the Court established by law will proceed upon the laws of the Church of England, so far as they are applicable in Natal. In this respect the decision in " Long v. Bishop of Cape- town " and " in the matter of the Bishop of Natal " are identical. And so far from arriving at the conclusion which was pressed upon me in argument in various forms, and which may be stated thus — that these decisions have established, or rather pointed out, that no legal identity exists between the Church presided over by the Bishops in colonies with established Legislatures and the United Church of England and Ireland — I have arrived at the exactly opposite conclusion — that is, I have come to the conclusion that but for these decisions such identity, though now existing, would very speedily cease to exist. So long as the law on this subject must in the final resort be administered by Civil tribunals accord- ing to the laws of the Church of England to the extent that such laws are applicable in such colonies, and this with a right of appeal to the Sovereign in Council, it is reasonably certain that the law will be uniformly administered amongst all the dependencies of the Crown which possess an established Legislature, and have not any religion established by law. But if each Church is to consider itself a separate and independent Church, though in union and full com- munion with the Church of England, and if each Church claim to App. B.] in the Cole mo Case. [97] possess full power to make rules and ordinances for its guidance in each separate colony, and to constitute an Ecclesiastical tribunal under the Bishop, and entrust him with full power to enforce such rules and ordinances without any appeal to any tribunal except to the forum domesticum of the Archbishop of Canterbury for the time being-, it requires but little foresight to predict that, in the course of a very short time, humanly considered, the Colonial Churches, though calling themselves in union and in full communion with the Church of England, would in forms and ordinances, and in matters of Church government, differ widely from each other and from their parent Church. Nor is it too much to say that some alteration of doctrine would probably in many cases follow upon the alteration in the discipline and government of the Church. Another consequence may also, I think, be reasonably predicted to arise from such a state of things, by any one who has carefully observed the disposition of the English people in such matters. If he has done so, he cannot fail to have noticed how deep-rooted an attachment to the Church of England exists in the people generally, even amongst those portions which are not sedulous in attendance at places of public worship ; and this consequence is that, as soon as this matter shall have become clearly understood by the English resident in the colony, there would be a rapid and large secession from the Church which was only in union and in full communion with the Church of England, to the Church of England itself, which even in those distant colonies would receive and foster her brethren as part and parcel of her own peculiar flock. The effect, therefore, of these decisions is, as it appears to me, that, though they have established that the Letters Patent cannot create new Ecclesiastical tribunals, or introduce into the colonies any of the Ecclesiastical tribunals which subsist in this country, they have also established that every exercise of Ecclesiastical authority and every act of any member of the Church in such colony professing to be a part of the Church of England must in matters spiritual be governed by the laws of the Church of England, G [98] Judgment of the Rolls Court [Apr. B. and must be tried by the application of those laws. This is strongly illustrated by Dr. Warren's case, which is sometimes mis- understood ; the Court refused to examine into the propriety of the decision of the Conference in that case, for this reason — what they did was to ascertain that by the rides and ordinances of the Weslevan body every minister agreed to be bound by the decision of the Conference, and having ascertained this, the Court inquired no further. In "Long v. Bishop of Capetown/' the Court also in- quired whether, according to the rules and ordinances of the Church of England, Mr. Long had agreed to attend and be bound by the assembly summoned by the Bishop of Capetown, and the Court held that he had not. It is the more important that the real status and condition of the Colonial Churches should be constantly present to the mind, because, as it appears to me, erroneous notions prevail to a great extent on this subject. Some persons seem to imagine that they were founded and endowed in order that the association in each colony should form a separate and independent Church. So far has this been carried that it seems to be supposed that, if the members of such Colonial Church, or a majority of them, should so think fit, they might, if dissatisfied with the person whom the Crown had appointed to be their Bishop, withdraw from his super- intendence and elect a Bishop for themselves. That any number of persons, if they so pleased, might, though holding the doctrines of the Church of England, reject, either wholly or in part, the disci- pline and government of the Church, though they preserved still the creed, faith, and doctrines of the Church of England, is un- questionable. Such an association might elect their own Bishop, they might divide the district in which they reside into sees and elect a Bishop for each ; they might parcel the district out into parishes and appoint a minister to officiate in each parish : all this they might do, and all this would be perfectly legal, and all this would be binding on the members of the association who assented to it; — as it is now in the Episcopal Church in Scotland, which is not, and by the Act of Union is prohibited from being, a part of the Church of England, and in which the Crown is prohibited from appointing or nominating any Bishop. If dissensions arose amongst Ait. B.] m the Colenso Case. [99] the members of such a Church, they must have recourse to the Civil tribunals; but when they did so the question would be tried by their own rules and ordinances, which would have to be proved by evidence in the usual manner. But this association would not be a branch of the Church of England, although it might call itself in union and full communion with it. By the law of the Church of England the Sovereign is the head of 1he Church, and in substance (for the conge d'elire is nothing more than a form) no Bishop can be lawfully nominated or appointed except by the Sovereign, nor, as I apprehend, could any person be legally consecrated a Bishop of such Church unless by the command of the Sovereign. If the members of the Inns of Court were to present one of their preachers to the Archbishop of Canterbury, saying that they had elected him Bishop of the Inns of Court, and prayed that he might he conse- crated, although the most rev. prelate might feel disposed to accede to such prayer, I apprehend that he could not lawfully do so, and that upon application a prohibition would issue from the Court of Queen's Bench to prevent such a consecration. So, in like manner, the members of the Church in Natal might elect a divine and call him Bishop of Natal, or invest him with any other title ; but even if the Archbishop of Canterbury could be induced to consecrate such a person in due form, he would, I apprehend, have no legal authority to exercise any of those functions which belong exclu- sively to a Bishop of the Church of England. What his peculiar status in the Catholic Church of Christ might be I do not profess to state 4 , but I apprehend that he would not be a Bishop of the Church of England, and that, when the validity of his ordinations and con- secrations came to be contested in a court of law, they would not appear to have made the persons ordained Priests or Deacons of the Church of England, nor would the places consecrated by him belong to that Church. To adopt the words of the Judgment in the case of the Bishop of Natal, the course which legislation has taken on this subject is a strong proof of the correctness of these conclusions. 4 Compare p. 77, col. 2, 1. 8. G 2 100 ] Judgment of the Bolls Court [App. B. In 1786, shortly after the American colonies had been severed from this country, it was thought necessary to pass an Act of Parliament to enable the Archbishops of Canterbury and York to consecrate candidates for Episcopacy in countries not under the dominion of the Crown ; but even this permission was not granted without the licence of the Crown for each particular case being first obtained; and the statute also provided that no person so conse- crated should exercise any Episcopal functions within the United Kingdom . In 1819 the Archbishops of Canterbury and York were em- powered by the Legislature to ordain persons specially for Her Majesty's colonies. The statute provided that no person not ordained by any Bishop or Archbishop of England or Ireland should officiate in any church in England or Ireland without the special permission of the Archbishop of the province, or hold any Eccle- siastical preferment or act as Curate therein without the consent of the Archbishop of the province, and also of the Bishop of the diocese ; and the statute also provided that no person ordained by a colonial Bishop who did not at the time possess Episcopal juris- diction over some diocese, district, or place, and also reside therein, should hold any Ecclesiastical preferment within Her Majesty's dominions, or officiate in any place as a minister of the Church of England and Ireland. (59 Geo. III., c. 60.) In 1840 the' Legislature permitted the clergy of the Episcopal Church in Scotland, and in the United States of America, to officiate for one or two specified days, on a permission given in writing by the Bishop of the diocese, in a specified church within the United Kingdom, with consent of the incumbent. In 1852 an Act (15 and 16 Vict., c. 52) was passed which enacted that nothing contained in the two last-mentioned Acts, and also in two Acts (53 Geo. III., c. 155; 3 and 4 Will. IV., c. 85) therein recited, and which are also mentioned in the Judg- ment of the Privy Council, and which referred to bishoprics in India, should extend to any person who upon the request and by the commission of the Bishop of any diocese in England or Ireland should have been ordained a Deacon or Priest within the limits of Arr. B.] in the Colenso Case. [101] such diocese by any Bishop who, by virtue of Her Majesty's Letters Patent, should have exercised the office of Bishop in India or in any of Her Majesty's colonies or foreign possessions ; and it enacted that all admissions to benefices in the United Church of England and Ireland, and all appointments to act as Curates and Chaplains therein of persons so ordained, should be valid in law. (15 and 16 Vict., c. 52.) In the following year (16 and 17 Vict., c. 49) this was extended, and it was enacted that, notwithstanding the provision in the recited Acts to the contrary, " all persons who have been or here- after shall be ordained by any of the said Bishops in or for the diocese of the Bishop of any other of Her Majesty's foreign or colonial possessions, upon his request in writing shall be entitled to all the same rights, privileges, and advantages as if he had been ordained by such Bishop within the limits of a diocese over which he was at the time himself actually exercising jurisdiction and residing there." It is impossible to read these Acts and not to see that the provisions therein contained apply, so far as the colonies are concerned, exclusively to the acts of Bishops who exercise the office of Bishop in such colonies by virtue of Her Majesty's Letters Patent. This is expressed in the statute of 1852 (15 and 16 Vict., c. 52), and in the Act I have last mentioned is repeated by referring to the Bishops mentioned in the previous statute. Throughout all these statutes it is pointed out by irresistible inference that no Bishop of the Church of England can be created without the authority of the Crown ; and also that the authority of Parliament is required to make the ordinations and acts of Bishops in Her Majesty's foreign possessions effectual within the United Kingdom. All these statutes, therefore, appear both directly and indh'ectly to confirm the view I have taken of this part of the case. To sum up the conclusions shortly, in my opinion, the case stands thus : — The members of the Church in South Africa may create an Ecclesiastical tribunal to try Ecclesiastical matters between them- [102] Judgment of the Rolls Court [Apr. B. selves, and may agree that the decisions of such a tribunal shall be final, whatever may be their nature or effect. Upon this being - proved, the Civil tribunal would enforce such decisions against all the persons who bad agreed to be members of such an association, that is, against all the persons who had agreed to be bound by these decisions, and it would do so without inquiring into the propriety of such decisions. But such an association would be distinct from, and form no part of, the Church of England, whether it did or did not call itself in union and full communion with the Church of England. It would strictly and properly be an Episcopal Church, not of but in South Africa, as it is the Episcopal Church in Scotland but not of Scotland. But if the Episcopal Church in South Africa chose to remain part of the United Church of England and Ireland, then no such irresponsible tribunals could exist, and when recourse is had to the Civil tribunal to enforce obedience to these decisions, they must be subject to revision to the extent I have already pointed out as laid down by the Judgment in the case of " Long v. Bishop of Capetown/' In one case it is one Church in all the colonies, each association being part of the parent Church of the United Kingdom of England and Ireland; in the other case they are separate and distinct Episcopal Churches, each existing separate in each colony and distinct from every other Church, bound by their own canons only, and no more by the canons of any other Church than they would be by the canons of the Episcopal Church in Scotland, according to their final settlement by the last Synod held in Edinburgh in 1860 for that purpose, and all of them rejecting, as the Church in Scotland is compelled to do, the Thirty-seventh of the Articles of the English Church, which puts the Sovereign at the head of the Church. I have gone so fully into this subject because the full comprehension of what is the actual position of the Church founded and endowed in these colonies by members of the Church of England is of the highest importance for the purpose both of determining what the x/ij/tts of the plaintiff is, and also of disposing of the remaining point I have to consider, which was strongly urged upon me — viz. how far the objects and intention of the persons who contributed the funds for founding the Bishopric of Natal have been fulfilled. Apr. B.] in the Coli'uso Case. [103] It was argued that to continue the payment of the stipend to the plaintiff, having- regard to his actual legal status, would be in the nature of a breach of trust. Except in the case of one contributor, I have not before me any distinct evidence of what were the objects of the persons generally who advanced the funds, further than this, that they desired to found a Bishopric in the colony of Natal. But this one, who is the principal contributor, is a lady, who, with her constant, boundless charity, has supplied very large funds for the purpose of endowing Colonial Bishoprics, and who has addressed a letter on the subject to the Archbishop of Canterbury, which has been produced in evidence, and has been brought pro- minently forward in the discussion of this question. The letter itself is carefully written, and has, I assume, undergone final revision and approval from the advisers of this lady before it was published. In this letter are the following passages, which contain the substance of the argument addressed to me on this subject : — " I had always supposed that in undertaking to provide funds for the endowment of colonial sees I was co-operating with the Archbishops and Bishops of the United Church of England and Ireland in laying the foundation of efficient Church government for the members of our National Church resident in the respective colonies, and that the Crown, by its Letters Patent, had power to give legal effect to an order of things calculated to secure that the doctrine and discipline of the Church of England, by law established, should be maintained in their completeness amongst the congregations of our own communion in those colonies. Without this security 1 should not have guaranteed the endowment funds, and upon the faith of this having been accomplished by the issuing of Her Majesty's Letters Patent, I fulfilled in each case my guarantee. "The declaration, however, of the state of the law which is to be found in the Report of the Judicial Committee of Her Majesty's Privy Council upon the case of the Bishops of Capetown and Natal, has drawn my attention more particularly to the fact that the conditions upon which I undertook to make provisions for the endowment of a Bishop's see at Capetown have not been fulfilled by Her Majesty's Letters Patent, and I find, with most painful surprise, that the Bishop nominated to the see of Capetown is declared in that report not to have any effective Ecclesiastical jurisdiction, and my anxiety is increased by the advice which I have received from eminent counsel, that the Letters Patent of the Crown purporting to erect the sees of Adelaide and British Columbia and Vancouver's Island with jurisdiction over the clergy in those colonies may prove to be equally ineffectual with the Letters Patent of Capetown." It will be seen, by the observations I have already made, that in [ 10 Ih ] Judgment of the Bolls Court [App. B. my opinion this letter is written in misapprehension of the real effect of the decisions of the Judicial Committee in the two cases referred to. The writer ohserves that she would not have guaranteed the funds unless upon the faith that the Crown, hy its Letters Patent, had power to give legal effect to an order of things calculated to secure that the doctrine and discipline of the Church of England, by law established, should be maintained in their completeness amongst the congregations of our own communion in these colonies. If I am rig-lit in the observations I have made upon the effect of the decisions of the Privy Council, this object will be far better accomplished by securing an uniform administration of the same law throughout all the colonies, instead of founding separate and independent Churches, each framing its own rules of discipline. Afterwards the writer finds, with the most painful surprise, that the Bishop nominated to the See of Capetown is declared not to have an effective Ecclesiastical jurisdiction. This, again, appears to me to spring from a misapprehension. It is not declared by the judg- ment of the Privy Council that the Bishop of Capetown has no effective Ecclesiastical jurisdiction, unless in the word "effective" is included the word " irresponsible/' The Judgment of the Privy Council has declared in the case of Mr. Long that the Bishop of Capetown has an effective Ecclesiastical jurisdiction, provided it be administered in accordance with the doctrine and discipline of the Church of England, and in a manner consonant with the principles of justice. That if it be so administered it will be enforced and carried into execution by the power of the Civil tribunals, but that if it be not so administered it is a nullity : and that whether it be or be not so administered is a cjuestion to be determined by the Civil tribunals of the colony, with an ultimate appeal to the Sovereign in Council. If, indeed, the persons who contributed these funds did so on the faith that the decision of the Bishop in the colony, or of the Archbishop of Canterbury, on an appeal to him in his domestic tribunal should be final ; and, further, that that decision should not be questioned in any court of justice, not even in the Court of Arches, the Ecclesiastical Court of the Archbishop, but which is presided over by a layman, and from whose decisions an appeal lies App. B.] in the Colenso Case. [ 105 ] to the Queen in Council, — then unquestionably this object is not accomplished by the Letters Patent ; but there is not any thing that I can find in the previous correspondence, or in these Letters Patent 5 , which purports to effect this, or which ought to have induced the subscribers to expect that such a result would be obtained. And it is further to be observed, that such a result would have involved a principle which would have been wholly repugnant to the foundation on which the discipline of the Church of England rests, which makes the Sovereign the Supreme Head of the Church in all her dominions, a principle which is expounded and enforced in the Thirty-seventh of the Articles of Religion of the English Church. I cannot, therefore, from this letter, or from any other document before me, come to the conclusion that the object of the persons who contributed to form a fund to endow Bishoprics in the colonies dependent upon England was to elevate the Church over the Throne, or to depose the Sovereign from being the head of the Church of England in the colonies dependent on her. But even if this were the case, and that the object of the persons who contributed the funds for endowing the Bishopric of Natal has failed, this would not dispose of the question. This was a contract entered into by three parties to it — the Crown, the trustees of the fund, on behalf of the contributors, and the plaintiff, and although it is true that this Court will occasionally refuse specifically to enforce a contract where one of the parties who entered into it did so by mistake and while ignorant of the real state of the case, yet, where the contract has not only been entered into, but has also been acted upon, and where it is impossible to restore all the parties to it to the same position which they were in before the contract was made, the Court of Chancery never annuls the contract. Who now can restore the plaintiff to his former position in 1853 ? Assume that the contributors can truly say, " We sub- scribed this fund to make the plaintiff a Bishop, with coercive powers, inherent in his own Episcopal jurisdiction. We find that 6 Compare p. 65, col. 1, passim. [ 106 ] Judgment of the Bolls Court [App. B. the plaintiff, as Bishop, must have recourse to a court of law for that purpose, and therefore we annul the engagement," — could any Court listen to such arguments, or could such a doctrine be admitted to annul the contract ? All persons are bound to know the law. Ignorance of the law, according to the hackneyed but most neces- sary maxim in our j urisprudence, and indeed in every jurisprudence, excuses no one. The contributors, therefore, must be treated as knowing, or as being bound to know, that to enforce the decision of the Bishop he must have recourse to a court of Civil jurisdiction, and that the Court so resorted to would sit in judgment upon and review the correctness of the decision to this extent — that the Court would ascertain whether the Bishop had acted within the scope of his authority, and had proceeded in a manner consonant with the principles of justice, and the plaintiff might justly say to the con- tributors, " You cannot now recede from your engagement, because that is made manifest to you which from the first you must or ought to have been well acquainted with." These last observations would unquestionably not applv to the next person who was appointed Bishop of Natal, if a vacaucv should occur. "With the successor a fresh contract would have to be made, the terms of which, expressed or implied, would bind the parties to it, but that has nothing to do with the plaintiff. I am therefore of opinion that the views and objects of the per- sons who contributed the fund, whatever effect it mav have with respect to any future appointment, cannot be called in aid for the purpose of depriving the plaintiff of his salary as Bishop of Natal. I must also say that the more I consider this part of the case, the more strongly I am impressed with the belief that the real state of the case, and the real effect of the decisions of the Privy Council, have not been present to the minds of the persons who, having subscribed the funds for the endowment of the Bishopric, now object to the application of them for payment of the income of the plaintiff. The practical effect of the decision is simply this, that an appeal to the extent I have stated lies from the decisions of the Bishop in Alt. B.] in the Coien'so Cose. [ 107 ] the colonies to the Courts of Law in those colonies, and from thence to the Privy Council. Is it really helieved hy any Large number of the contributors to these funds, that this is an order of things ill calculated to secure " that the doctrine and discipline of the Church of England by law established should be maintained in their com- pleteness amongst the congregations of our own communion in these colonies ?" Can it be fairly said, that " the Bishop nominated to the See of Capetown is declared to have no effective Ecclesiastical jurisdiction," because his decisions are liable to be revised by a court of law to this extent — that wherever he exceeds the scope of his authority as established by the rules and discipline of the Church of England, and wherever he does not proceed in a manner consonant with the principles of justice, his decisions are void and of null effect ? The Bishop of Capetown, the Bishop of Natal, the Bishops of all colonies similarly circumstanced — i. e. having an established Legislature, but having no Established Church, can, as regards the ministers and congregations of the Church of England, within their diocese, exercise all the powers of a Bishop ; they can ordain, confirm, and consecrate ; they can do more — they can visit, investigate, reprove, suspend, and deprive 6 ; and if, in so doing, they keep within the due scope of their authority as established by the discipline of the Church of England as by law established, and proceed in the exercise of that authority in a manner consonant with the principles of justice, their acts are valid, and will be enforced by the legal tribunals. It is only when their acts fail in these respects, when they exceed their authority as regulated by the law of the Church of England, or when they proceed in a manner not consonant with the principles of justice, that the Bishops cease to be able to enforce their decisions. Surely this is not such an evil as to make subscribers believe that they have applied funds for the purpose of constituting an order of things which in the colonies will fail to secure "maintenance of the doctrine and discipline of the Church of England by law esta- lished." I am also at a loss to understand why the prelate so appointed is less a Bishop because he does not possess coercive 6 Compare ]>. 82, col. 1, 1. 22. [ 108 ] Judgment of the Rolls Court [App. B. jurisdiction incidental to an Episcopal tribunal 7 , to try Ecclesiastical offences within his diocese, of which he is the head, than because he is deprived of, or rather has not had conferred upon him, the administration of the personal property of deceased persons which did formerly belong-, and to some very limited extent still belongs to an English Bishop in England. The three powers belonging to a Bishop, according to all prin- cipal authorities, are — first the power ordinis ; second, jurisdictionis ; third, administrationis rei familiaris. The colonial Bishop possesses the first unfettered, without control or appeal ; the second he pos- sesses in this way — that he must apply to lay tribunals to enforce his decisions, which lay tribunals will review them and consider their correctness according to the law which the Bishop himself is bound to administer to the extent I have above stated ; the third he does not possess at all ; it was not ever proposed to be given to him ; it belongs to a different officer, and to a different tribunal The absence of this authority, or of this power, does not disturb the defendants ; it does not, in their opinion, or indeed in the opinion of any one, affect his status as a Bishop ; but because a fetter is imposed on the second of his powers, by which he is constrained, when the matter is questioned before a court of law, to show that he has exercised his jurisdiction within the scope of his authority as established by the law of the Church of England, and also that he has proceeded in a manner consonant with justice, it is supposed that he is no longer the Bishop of a diocese, and that the object which the subscribers had in view in causing his appointment is entirely frustrated. It is, no doubt, open to all tribunals to err, and it may, and probably does, appear to many persons who have carefully con- sidered, and who take a deep interest in this subject, that the lay tribunal is less likely to understand, and less likely fully to appreciate the bearing and importance of a religious question, though one relating solely to the extent of the Bishop's authority and his mode 7 Compare p. 107, 1. 20. App. B.] in the Colenso Case. [109] of exercising- it, than a tribunal composed of Ecclesiastical per- sonages would do ; and this consideration unquestionably opens a very large question, which is, whether it is a beneficial condition of things that the State should be superior to the Church in matters Ecclesiastical. But the solution of this question does not lie within my province ; it cannot affect my decision on the present occasion : it is sufficient for me to point out that the fundamental principle of the Church of England puts the Sovereign at the head of all causes, Ecclesiastical as well as Civil, and consigns the decision of matters Ecclesiastical, in the last resort, to the Sovereign herself, with the assistance of the members of her Privy Council. In reviewing the whole of this case, it is impossible not to look a little at ulterior consequences, and although it is not safe, when expounding the lacw on any subject, to rely on the results of the decision, still it may not be improper to point out what would be some of the difficulties which would arise if I were to adopt the arguments of the defendants, and dismiss the plaintiff's bill. If no portion of the funds of which the defendants are trustees can be applied towards the payment of the salary of the Bishop of Natal, no portion of these funds can properly be applied towards the payment of the salary of any other Colonial Bishop similarly cir- cumstanced. Are no more Bishops to be appointed in colonies having an established Legislature and having no Established Church ? Are the ministers and congregations of the Church of England in such colonies to be left without the advantages which are found to flow from the superintendence and watchful care of a Bishop ? Another difficulty, and one which would seriously affect the defendant, is this — If the suit of the plaintiff were dismissed, what is to be done with the money dedicated for the endowment of a Bishop of Natal, and the accumulated income since 1864? Is it to go on accumulating? is it to be retained by the trustees for their own benefit because no cestui que trust exists? Can it be returned to the subscribers ? and if not, is it to be applied ey pres ? The mere statement of these propositions shows that it is impos- sible that any one of them should be adopted. In my opinion the truth is shortly this : these funds were subscribed to induce the [ 110 ] Judgment of the Bolls Court [App. B. Crown to appoint a Bishop of Natal. The Crown acceded to that wish of the subscribers, and by Letters Patent appointed the plaintiff Bishop of Natal, and the Archbishop of Canterbury has duly consecrated him Bishop of Natal, in compliance with the directions of the Sovereign, and accordingly the plaintiff is Bishop of Natal in every sense of the word s , and will remain so until he dies, or resigns, or until the Letters Patent appointing- him are revoked, or until he is in some manner lawfully deprived of his See. I cannot, however, conclude the observations I have to make on this case without guarding against a misapprehension which might seem to flow from the words I have last used, as if I were of Opinion that the plaintiff could not by any means be removed from being Bishop of Natal. Such is not my opinion.* I wish it to be distinctly understood that I do not mean to assert that as soon as the plaintiff's nomination by the Crown and his appointment by Letters Patent had been consummated by his consecration by the Archbishop, whatever might be his conduct or opinion, he must for ever remain Bishop of Natal, and enjoy the endowments attached to that office, even though the Letters Patent appointing him had never been revoked. On the contraiy, I entertain no doubt that if he had not performed his part in the contract entered into by him, that if he had failed to comply with " the covenants of his trust," he could not compel payment of his stipend. The contract he has entered into is involved in the words " Bishop of the Church of England as by law established." The duties, the teaching, the superintendence, the pastoral care, the watching of his flock, which appertain to a Bishop, he undertook and was bound to perform ; and if by his own wilful default this has become impossible, I do not mean to lay down that he could main- tain a suit in this Court for the payment of his salary as Bishop of Natal. If, for instance, he had renounced the faith of a Christian, or if he had renounced the doctrines and precepts of the Church of England, I do not mean by any thing I have stated to suggest that s Compare p. 72, col. 1, 1. 4, p. 77, col. 1, 1. 33, and p. 81, col. 1, 1. 36. Ait. B.] in tin 1 Ool&nso Case. [Ill] he could have retained his position as Bishop, or have enforced the payment of his salary; in fact, the contrary has been laid down in several cases which have come before this Court, as, for instance, where an endowment was made for a society of Presbyterians in com- munion with the Church of Scotland, and the ministers and majority of the congregation seceded to the Free Kirk, it has been held that the minority who still clung- to the Church of Scotland was entitled to keep the endowment and to appoint another minister ; and the like has been decided in many other cases. But, as I observed at the outset of these observations, no such case as that which I have suggested has been presented to me, nor having regard to the pleadings in this suit could such a case have been argued before me. Not a word in the pleadings and evidence before me is breathed against either the moral character or the religious opinions enter- tained by the plaintiff. Of course it would be foolish in me were I to pretend ignorance of what has been at the root of the pro- ceedings against the plaintiff in Capetown, and of the refusal of the defendants to pay to the plaintiff the income attached to the bishopric of Natal, but judicially in this case, where I am bound to proceed secundum allegata et probata, I am bound to ignore this matter altogether. Whether if the case had been raised I should have suspended my judgment on it until proceedings had been taken by scire facias in the courts of common law, or until recourse had been had by petition to the Sovereign whom the members of the Church of England in Natal might, as I apprehend, have petitioned on this subject, it is unnecessary for me now to speculate. This I hold certain, that if no other Court could have been found to try the question, I should have been bound to do so ; and, con- sequently, all that it is necessary for me to state on the present occasion is that this question might have been raised, that if raised I must have entertained it, and might have been compelled to decide upon it, but that in the manner in which this case has been presented to me, it is lit that I should repeat once more that I have been compelled to consider it on the assumption that the plaintiff is in every respect perfectly fit and proper to fulfil the office of Bishop and to dispense his pastoral care and protection over the [ 112 ] Judgment of the Bolls Court. [App. B. flock of members of the Church of England residing- within the Diocese of Natal. I must, therefore, pronounce a decree in the terms of the prayer of the plaintiff's bill. It follows that the defendants, the trustees, must pay the plaintiff's costs. I do not blame them for the course they have pursued, considering- the pressure put on them by or on behalf of the persons who contributed the funds, and who would scarcely have been satisfied if the trustees had acted without the decision of a court of law. It was probably impossible for the trustees to have acted otherwise than they have done. This, however, though it may be a very good reason for holding that they ought to be allowed the expenses to which they will have been put out of the fund which they administer, is no reason for denying the plaintiff his costs, who, so far as this suit is concerned, has in my opinion been in the right thi'oughout. He must pay the Attorney-General his costs of this suit, and add them to his own costs, which he must recover against the defendants. There has been no separate answer, or, as I suppose, any extra expense occasioned to either side by the appearance of the Primates, and I say nothing, therefore, with regard to their costs. If there be any such extra costs, I can neither give them any nor require them to pay any. [Note. — It is somewhat surprising, and very alarming, to observe that the learned Judges should have adopted the wholly unwarrantable and indeed illegal term, "Head of the Church,'' as applied to the Sovereign no less than six times in the two preceding judgments, viz. in pp. 60, 72, 84, 99, 105, the places are designated by the words being printed in italics. That title was deliberately eliminated from the Rolls of Parliament, distinctly repudiated by the Legislature in two successive reigns, and from the year 1554 has never belonged to the English Sovereigns. Queen Elizabeth's two reasons for objecting to it are on record : — 1. " That that dignity has been given to Christ alone, and is not suitable for any mortal." 2. " That such titles have been so foully defiled by Antichrist that they cannot be piously employed by any one for the future."] Apr. B.] Parker v. Leach. [113] II. In the following 1 ease the Judicial Committee of the Privy Council was constituted under the general law, consequently no spiritual person sat upon the tribunal. Judgmen t of the Lords of the Judicial Committee of the Privy Council on the Appeal of the Rev. E. Parker v. Leach, from the Chancery Court of York ; delivered 20th November, 1866. Present : Lord Westbury, Sir James W. Colvile, Sir Edward Vaughan Williams. The appellant in this case is the perpetual curate and incumbent of the parish church of Waddington, in the Diocese of Ripon and Province of York; the respondent an aged gentleman resident within the same parish. There is in the chancel of the parish church a pew, claimed as belonging to the Honourable Mrs. Ramsden, in respect of her being the owner of an ancient messuage within the parish. Mrs. Ramsden has given licence and permission to the respondent to occupy that pew, of which she is the proprietor ; the respondent has had the use and enjoyment of it for nearly forty years. In the month of December, 1863, the appellant, without the authority of the churchwardens, appears from the evidence to have gone to a carpenter, an inhabitant of the parish, to have brought him into the chancel, and to have pulled down and entirely destroyed the pew which the respondent had been in the habit of enjoying. This was followed by an action for perturbation of the pew com- menced in the Diocesan Court, and removed by letters of request to the Appellate Court at York. To the libel of the respondent, the appellant pleaded that there was no jurisdiction in the Archbishop, because the church was not, in law, a church at all, never having been re-consecrated since its general repair or rebuilding in the year 1826. Now the appellant has been himself for three years the incumbent of the church ; Divine Service has been celebrated there by him, and // [114] Judgment in the Case of [App. B. by his predecessors; baptisms have been performed there; mar- riages have been solemnized there ; the Holy Communion has been administered in it for nearly forty years. It is a plea, therefore, pregnant with the most formidable consequences, if it be found to have any support in law. Tbe points which have been argued may be thus arranged. It is contended by the appellant, as a general proposition, that if a church be taken down and rebuilt, though it be rebuilt again upon the same foundations, the new edifice requires to be re-consecrated ; and until it be re-consecrated the appellant contends that it can have none of the character of a church ; that such an edifice, in point of law, is to be regarded no more than if it were any common building within the parish. Such is the legal proposition which is first put forward on the part of the appellant. The second proposition is, that the church in question, viz. this parish church of Waddington, had been rebuilt in such a manner as to bring it within the scope of the first proposition which he lays down, viz. that it was wholly rebuilt, and therefore required re- consecration. The third ground that has been maintained by the appellant is a technical one, relating to the form in which the title to the enjoy- ment of this pew was laid by the respondent in his libel. To prove the first proposition, viz. that a church rebuilt upon the old foundations, if it be entirely or substantially rebuilt, requires re-consecration, vei*y little authority has been produced. No decided case has been cited to their Lordships, with the exception, perhaps, of a case noted in Burn's Ecclesiastical Law, in which it is said that the church of South Mailing having been polluted and pulled down, was new built and then used for divine offices without new consecration. Archbishop Abbot interdicted the minister, church- wardens, and parishioners from the entrance of the church until the church and the churchyard thereof should be again consecrated. The particulars of the case are not given. It is a citation from Gibson's Codex, and it can hardly be regarded as any thing like a solemn legal decision on the point. Two things, however, appear App. B.] Parker v. Leach. [115] to have occurred, viz. that the original church was polluted in some manner not described, and probably on that ground was ordered to be pulled down, and then there was a new fabric which was considered by the Archbishop as requiring consecration. The other cases cited to their Lordships contain mere dicta of different Judges, and do not involve the point now in question. The case most relied on is one which occurred in the Diocese of Rochester, the case of Battiscombe v. Eve (7 "Law Times" N. S. 697), in which the Chancellor, Dr. Robertson, cited a treatise of very early date, written anterior to the Reformation, in which the follow- ing exjjressions are used : — " In tribus casibus debet ecclesia dudum consecrata iterum consecrari." After stating two instances which do not bear on the case, he proceeds : — " Tertius est, si ecclesia fnnditus sit disrupta, vel etiam ex toto reparata, sive ex eisdem lapidibus sive ex aliis." That is to say, where the chm*ch has been destroyed from the foundation stone, fund it us disrupta, or where the church has been ex toto reparata — -restored ex toto, completely from the top to the bottom in every part. It is unnecessary in the present case that their Lordships should give any judicial opinion upon this general question, for reasons that will presently appear ; but their Lordships are particularly desirous that it should be understood that they do not mean by any observa- tion to give authority to the position that if a church be rebuilt upon the old lines of foundation, including within it the same originally consecrated ground, and no more, such church does need re-conse- cration. We give no judicial opinion upon that. We desire, however, to have it clearly understood, that we do not by any means intend to recognize or to sanction such a doctrine, as being in our opinion a just view of the law. But that point will not be involved in our present judicial determination. The judicial ground for the determination we arrive at, rests upon the view we have taken of the second question ; the second question being an inquiry whether in this particular case the church was wholly rebuilt, so as to come within the meaning of a church ex toto reparata, assuming for the moment that such a new building might require re-consecration. II 2 [116] Judgment in, the Case of [App. B. Now the history of the proceedings is this : — A faculty was applied for and granted for the repair of the church. The church consisted of a nave, two aisles, the chancel, and tower. It would seem that it had been ascertained that the walls of the body of the church, including- the nave and aisles, required to be completely taken down and renewed. The tower did not stand in need of reparation, but all the walls, running' from the tower north and south to the east, required entire rebuilding. The eastern wall did not stand in need of being rebuilt. Accordingly the faculty directed the repair of the church to be made in con- formity with that necessity. The tower, therefore, remained untouched ; the eastern wall, in which were three windows — a large window and two smaller windows, one on either side — also remained untouched, except so far as it was necessary to pull down a part at either end of the eastern wall for the purpose of tying on to it the new north and south walls that were erected. The whole of the interior of the nave or body of the church appears to have been altered ; and whereas in former times there was an arched doorway communicating between the nave and the tower, that doorway was stopped up ; a new porch or entrance to the body of the church was erected, the north and south walls were erected, and the interior of the nave of the church was re- newed. With reference to the chancel there is some conflicting evidence, but the witnesses agree that the Communion-table, within the chancel, had on either side of it, north and south, two low walls forming as it were an interior chancel. These low walls were not touched, so far as removal was concerned, but they appear to have been added to and carried to a greater height. The Communion- table, being very old, was replaced by a new one. It is said that some of the pews then existing in the chancel were taken down and new ones erected, but upon the whole of the evidence the conclusion is that the pews in the chancel were allowed to remain. There may have been in some instances new wood- work, but substantially the chancel remained, save so far as we have mentioned, unaltered. App. B.] Parker v. Leach. [117] Now it must be observed thut this was done under a faculty granted by the diocesan ; it was done, therefore, by virtue of ecclesiastical authority. It is extremely difficult to understand how that which was done by virtue of ecclesiastical authority could have the effect of rendering 1 the thing- itself, when done, exempt from that authority which was necessary for the doing- of it. We put it, therefore, to the learned counsel whether there was any instance of repairs or rebuilding- done under a faculty which had been held to require re-consecration ? No such case has been produced to us. That case which occurred in the Diocese of Rochester appears to have proceeded wholly upon the ground that there the church had been repaired or rebuilt without a faculty ; and having therefore been called into being not under ecclesiastical authority, the learned Judge thought, rightly or wrongly, that it required re-consecration or re-dedication (the two words legally meaning the same thing), in order to give it the character of an ecclesiastical edifice, so as to be subject to the jurisdiction of the diocesan. It is a decision which, so far as it goes, would seem to carry with it, by implication, the conclusion, that if the reparation, however extensive it might be, had been done under a faculty, it would have j)recluded the allegation that it was a building which remained free from eccle- siastical authority until it was re-consecrated. So far, therefore, as that decision goes, it seems to present an expression of opinion that whatever was done under the faculty, being done under ecclesiastical authority, the building in respect of which it was so done must be considered as remaining subject to ecclesiastical authority. But that is not by any means the whole of the case, for the respondent avers that when the portions of the church which were rebuilt were pulled down, and while the edifice was therefore no longer fit to receive the parishioners for the purposes of public worship, marriages were still performed in the church, and the sacrament of Baptism continued to be administered. Marriages were celebrated in the tower whilst the church was in the act of being rebuilt j marriages were also celebrated within its incipient walls. At no time, therefore, has there been any disuser of the 118 ] Judgment in the Case of [Arp. B. edifice as a church. It has been treated as the parish church, and used, even during- the very act of rebuilding 1 , for those ceremonies which could only be performed within the parish church. That which remained, therefore, the tower and other portions of the building, still retained their ecclesiastical character : and its use as a parish church has never been abandoned. It is impossible to suppose that under such circumstances the building can have become desecrated, and so stripped of its original sacred character as to require that it should be again con- secrated. A question was put several times to the learned counsel, by whom we have been much assisted, and who would have been able to answer the question if there are any counsel able to answer it, whether pulling down the nave would involve a desecration of the tower, so that it also must be re-consecrated. Whether the same doctrine would apply to the eastern wall and the chancel ? "Whether those marriages and baptisms were all illegally performed which were performed when a certain part of the church was on the ground, and while the act of rebuilding was going on ? It was impossible that the answer to those questions could be either that these things were illegally done, or that the tower and the other buildings had lost their original sacred character acquired by virtue of the prior consecration. Another question was put to the learned counsel : whether there was any form given, or whether any instance could be cited of a partial consecration of a church, i. e. of a portion of the church ? Because the rule being, that what has been once consecrated shall not be re-consecrated, the consecration in the present case must be limited entirely to the body of the church, excluding the chancel and the tower. That would be an anomaly of which no example or precedent has been mentioned. Reference was made to a case which occurred before Dr. Lushington in the Court of Arches — the case of the parish church of Hanwell, and words were relied upon as seeming to intimate the opinion of the Judge that in that case the church had lost entirely its sacred character, and would require to be re-consecrated. App. B.] Parker v. Leach. [ 119 ] The note of this case, which is a very short one, must be ac- curately looked at for the purpose of seeing- what was the nature of the application, and the question which the Court was called upon to decide. The application was by a parishioner for a faculty to make a burial-place for himself and his family in the parish church, to the exclusion of others. At the time of the application, the note goes on to say, there was no parish church, the old church having been almost entirely taken down, and a new one in the course of rebuilding. Now an application for a faculty to make a burial-place is one the propriety of which it would be impossible to determine until it was ascertained what was the area of the church, and in what manner the interior of the church would have to be arranged and disposed of. Dr. Lushington's answer to the application was this : " I cannot grant such a faculty. How can I grant a faculty for a church not built ?" And the answer appears to us to have been a very conclusive one to that application. Then words are attributed to the learned Judge which could hardly have been used by him as they are here reported ; but if they were so used, they were obiter dicta, not necessary for the case before him. He is reported to have said, " If the altar has been taken down, there must be ■& re-consecration, as my jurisdiction depends entirely ratione loci." If the learned Judge used those words, it is quite clear he must have borrowed them from the equivalent expressions which are found in John de Burgh and other writers at a period anterior to the Reformation, and intended to apply wholly to Roman Catholic churches. In a Roman Catholic church there is an altar, or place where the priest offers sacrifice ; in a Protestant church there is no altar, in the same sense ; but there is a Communion-table on which bread and wine are placed, that the parishioners may come round it to partake of the Sacrament — the Supper of our Lord. It is impossible to derive from language applicable to a Roman Catholic altar a conclusion of law applicable to a Protestant church, which conclusion cannot be drawn unless you hold the Communion- [120] Judgment in the Case of [App. B. table to be in all respects equivalent to the altar of a Roman Catholic church. The note afterwards goes on to say that the motion was renewed subsequently : and " the church having been rebuilt and consecrated, the faculty was granted." It is impossible to tell (if it be correct that there was a re-consecration of the church) what were the circumstances which induced the supposed necessity for that re- consecration. We cannot accept the language as amounting to a judicial determination that when, in the repair of a church,- a new Communion-table is put in the place of an old one, the church must be re-consecrated. But that brings us back to the inquiry (which is one of fact), has this church been rebuilt in the sense in which the word rebuilding must be taken to be used whenever reference is made to the re- consecration of a church that has been rebuilt ? We repeat that this was not the rebuilding of an entire church, but was the renewal of a portion only ; that it was done under the authority of the diocesan as matter of reparation, and not of re- building, and that there remained untouched an important portion of the original consecrated structure, in which the offices of a parish church still continued, without interruption, to be performed. Upon these grounds, therefore, their Lordships act; and, con- fining their decision to the objection- to jurisdiction, they found it upon the fact that there was no rebuilding of this church, that it is not a new church, but part of an old church, with new buildings introduced into it by way of repair; and, finding this was done by the authority of the diocesan, under a legal faculty for the purpose, they are of opinion that the church never ceased to be a parish church so as to require re-consecration, but remained subject to the authority of the diocesan. They decide, therefore, that the protest against the jurisdiction in the Court below was rightly and properly overruled. The point remains upon the nature of the case, as stated by the respondent in the libel. Their Lordships have no doubt, from the manner in which the title of the respondent is pleaded in the libel, that it will, when it is Ait. B.] Parker v. Leach. [ 121 ] substantiated, give him in law a good right to the enjoyment of this pew. It is a pew in the chancel, which legally may belong to a person in respect of the ownership of a house, or which may belong to a lay rector ; it is very different from a pew in the body of the church, which can only be acquired by virtue of a faculty, or by virtue of immemorial possession, i. e. by prescription, which is founded on the notion of there having originally been a faculty. Their Lordships think, therefore, there would be no weight in the objection made in point of law, even if it were at present capable of being raised by the appellant, from the course which was taken in the Court .below : but we find that no such point was raised in the Court below; no objection on that ground was urged upon the Judge in the Court below ; the only question which was argued there was the question which is raised by the plea of the appellant, viz. the plea alleging want of jurisdiction, which, we think, was properly overruled. We cannot imagine any thing more dangerous or more deplorable than to come to the conclusion which the reverend appellant, who has for three years been the Incumbent of this church, seems not to be reluctant to arrive at, viz. that this fabric has been for the last forty years an unconsecrated place, in which the rites of the Church have not been duly performed, — in which, therefore, all that has been done would, in all probability, be legally good for nothing ; notwithstanding that successive diocesans, notwithstanding that all anterior incumbents, notwithstanding- that the whole of the parishioners have been led to believe, and have believed, that the church needed no re-consecration ; that when it was repaired it could be re-occupied and restored to its original purposes without the necessity of that solemnity. We are happily able to arrive, without difficulty, at the conclusion that there was no need of such a ceremony. We regret that such a question should have been raised by the appellant, and we shall advise Her Majesty to reject his Appeal, and condemn him in costs. I may add one thing to avoid the possibility of its being sup- jiosed that any word has been used in this place in a manner irreverent or contrary to the doctrine of the Church. In speaking [ 122 ] Judgment in the Case of [App. B. yesterday of the usage of dedicating churches to Saints, or to God the Son or God the Holy Ghost, I spoke of the second and third Persons in the Trinity, using, inaccurately, the word " inferior I meant only that they are named second and third in the enumeration of Persons. We all know the doctrine of the Church is that the three Persons of the Trinity are co-equal and co-eternal, and nothing different was intended to be implied by the expression so inaccu- rately used. I meant only to express that, when you speak of the Persons of the Trinity, you say God the Father, God the Son, and God the Holy Ghost, — God the Son and God the Holy Ghost being necessarily named second and third in order, but without implying any inferiority. I mention this because I have been informed the expression was misunderstood, and I am anxious there should be no misunderstanding on such a subject. III. In the following case the Judicial Committee of the Privy Council was abnormally constituted under a particular method of proceeding (vid. sup., pp. 7 — 9) ; consequently a spiritual person sat upon the tribunal. Judgment of the Lords of the Judicial Committee of the Privy Council on the Appeal of the Rev. Thomas Berney v. the Lord Bishop of Norwich, from the Court of Arches ; delivered 28i/i February, 1867. Present : Archbishop of York ; Sir William Erie ; Sir James W. Colvile ; Sir Edward Vaughan Williams ; Lord Justice Cairns ; Sir Richard T. Kindersley. This was a proceeding under the Church Discipline Act against the Rev. Thomas Berney, in which articles were exhibited, charging him with having solicited the chastity of Mrs. Cumming on two occasions, and of Miss Durrant on two occasions, and after a trial in the Court of Arches it was decided that those articles were sub- stantially proved, and he was sentenced accordingly to suspension Apr. B.] Berney v. the Lord Bishoj) of Norwich. [ 123 ] and deprivation for two years. Upon the present Appeal the correctness of that decision is to he tried, and we are to say whether either of those articles is substantially proved by the evidence returned on this record. Before we examine that evidence particularly, it may not be superfluous to observe generally that the charge described by the terms " soliciting the chastity" imputes very aggravated guilt; and the evidence would not be sufficient to prove either of the articles unless it convinced this Court that the appellant had endeavoured to obtain criminal intercourse with both or either of the witnesses by the solicitation for that purpose appearing on the record, and that evidence of indiscreet or improper conduct is irrelevant unless it tends to prove that purpose, either of adultery or seduction. It may also be worth observing that the offence, if committed at all, consisted almost entirely in words supposed to have been spoken by the defendant when no third person was present. These words do not express definite conceptions in a known course of business, such as the words of a merchant to a broker, but they are words of ileeting suggestion, words of which the meaning would be varied by reference to surrounding circumstances known only to the parties, and would be varied materially by a small addition or elision ; words so spoken that they cannot be expected to be exactly recalled ; and it is obvious that there may be injustice in holding the defendant responsible for words not really his own, but which the witnesses believe to be equivalent thereto. These considerations have more weight when the words are recounted by one party only to the conversation, and the other party (the accused) is not allowed to be heard, to explain, or contradict them. (This point was so decided in the case of Burder v. O'Neil, as to the proper construction of the statute in this respect, and the Advocate for the defendant was bound thereby upon this trial. But the point may be worth re-considering if need should hereafter arise.) Adverting now to the undisputed facts of the case. It appears that the appellant and Mr. and Mrs. Cumming, residing near together, were living on very friendly terms of neighbourly inti- macy, and that in April, 1864, Miss Durrant came to visit her [124] Judgment in the Case of [App. B. sister, Mrs. dimming, and stayed for some weeks. During these weeks the interchange of visits between these parties increased in frequency, and the appellant, a single man, was frequently at the rectory, where Mr. and Mrs. Cumming resided, and found himself at times alone in company with each of these ladies, and the parties had several pursuits in common connected with life in the country. This even flow of apparently tranquil enjoyment is alleged to have been disturbed by the four offences imputed to the defendant in the 6th, 7th, 8th, and 9th Articles; the 6th and 7th relating to Mrs. Cumming, and the 8th and 9th relating to Miss Durrant, each being a separate offence, and the proof of each depending on the evidence relevant thereto. We come now to the Articles, and we take first the charges con- tained in the 6th and 7th Articles, depending on the statement by Mrs. Cumming, of matters alleged by her to have occurred on or about the 11th and the 21st of May, 1864. In the first charge the words imputed are, " Come on the sofa with me ; the blinds are down. Mr. Cumming will never know any thing about it, and it will be a liaison between us •" and the acts imputed are that he looked at her and took hold of her hands. On the second occasion the words imputed are, " I want something so very bad ; I've been so excited all the week ; do let me have my own way. A slice out of a cut cake will never be missed. I shall go crazy if you don't let me have my own way. I shall go home and make a fool of myself with Susan." The acts imputed are that he shut the doors of the room, and placed a hand on the knee of the witness. This statement, if it can be entirely relied on, is sufficient to raise the presumption that the appellant did endeavour on each of those days to procure immediate criminal intercourse with Mrs. Cumming, a presumption which ought to prevail upon this Appeal unless we find it to be more than counterbalanced by presumptions placed in the opposite scale. The former character of Mrs. Cumming has not been impeached, and we take it to be clear that her manner in giving her evidence prepossesses in her favour. But although the presumption from this Apr. B.] Berney v. the Lord Bishop of Norwich. 125 ] statement is strong 1 against the appellant, yet daily experience shows that a tribunal trying questions of fact, ill performs its duty if it adopts as true every statement on oath not contradicted by counter testimony ; it being in accordance with that experience that many such statements ought to be disbelieved, and that, without imputing perjury. The witness may be mistaken in her perceptions or in her inferences from her perceptions, or her state- ment may be so invalidated by reason of improbabilities, as to be insufficient for convicting of a crime. The statement which we are now to examine makes the charge of guilt to rest almost entirely on words, with scarcely any con- comitant act. Justice therefore requires that we should be sure that the words alleged in the articles are substantially the words of the appellant. But the presumption to the contrary is very strong. It is very rare for a witness to be able to repeat exact words, even their own. The words in question are incoherent, unless the purpose of adultery is assumed, which is the matter to be tried. No complaint was made to any third person either at the time or for weeks after, so that the appellant might explain while the matter was fresh. When the complaint was made, it was marked with a deceptive generality, specific neither in time nor place, nor in definite conceptions, attaining at last the form appearing in the Articles by gradual steps, as alleged by the Counsel for the appellant. It is certain that the witness's memory cannot be relied on for accm-acy, as the charge in the Articles varies in some degree from the charge in her evidence ; and the charge in her evidence also varies from the memorandum which was prepared by her some time after the fact, for the purpose of preparing for examination ; indeed this memorandum is decisive proof of want of perfect recollection, by reason of its alteration and erasure, and inter- lineations. On these grounds we think that there is reason to doubt the exact correctness of the evidence relating to the defendant's words. But whatever may have been the words that passed, the admitted conduct of the parties raises a strong presumption against the truth of the statement on which this part of the case turns, [ 126 ] Judgment in the Case of [App. B. namely, that the witness understood that the appellant had pro- posed immediate adultery. Considering- the social position of the parties, and the even tenour of agreeable society in which they lived, and the time and place alleged, it seems improbable that the appellant should disturb that even tenour by suddenly, and without preliminary, making to the lady a proposal which must shock any but a known profligate, — that is, immediate adultery in mid-day, in a room comparatively open to interruption ; and it is an additional imjn-obability that this proposal should be made to a lady whose ill health, as alluded to by Counsel, was known to the appellant. It also seems improbable that such a proposal should be passed by the woman without any resentment manifested to any human being, and that on her refusal to consent to an act of heinous guilt, the man should resume his paint-brush and complete, as if in tran- quillity, the forms and colours of the designs for flower-borders which were produced in evidence. The subsequent conduct of the witness raises a still stronger counter presumption against reliance on her statement. If we take the alleged proposal of the 10th of May, after the husband's return the appellant packed up his drawings and went home, but left his paint-bos by mistake ; the witness asked her husband to take it to the appellant, who needed it for a visit he was about to make to his mother, and the husband did so. If she desired to promote the convenience of a neighbour whom she knew, this would be consistent. If she had been insulted and degraded, and an attempt had been made to bring- misery on herself, her husband, and her family, this apparent courtesy would be incon- sistent, and the attempt to explain it by saying she wished to avoid seeing the appellant again, coupled with the other facts, seems to us to be an unreal pretence ; this was the immediate sequel to the pro- posal of the 10th of May. On the 12th the appellant sent a vase, either as a present or a loan. Is it to be supposed that if the witness was actuated by the feelings which she now says prompted the return of the paint-box by her husband, she would not have sent back the vase, App. B.] Berney v. the Lord Bishop of Norioich. [ 127 ] and found some reason for doing so ? But the vase was accepted, and the witness and her sister took pleasure in decorating- it with flowers, as they would a present which was valued for the sake of the giver. Next followed the letter of the 15th of May (from Mrs. Cum- ming to the appellant), which seems almost decisive against relying on her statement. It may be true that Mr. Stewart requested her to write what relates to the harmonium. It may be true that the husband gave the form of conclusion, " Believe me yours sincerely." But there are parts of the letter which, by evidence internal as well as external, are, in our opinion, her own, and express unalloyed favourable feeling, and a desire for the con- tinuance of friendly intercourse and correspondence. For example, she writes, " You could scarcely have had more lovely weather for gardening. I hope the plans were approved of by Mrs. Berney. I shall be anxious to know how you get on. Bessie was quite sorry she could not see the painting when it was finished. Mr. Cumming and Bessie unite with me in very kind regards." The easy flow of allusion to small subjects seems irreconcilable with the notion that she was knowingly addressing a man who only a few days before had offered her the grossest insult a woman could endure ; and the meaning of the passage, " Bessie was sorry she could not see the painting when it was finished," was realized when the appellant proposed to show the drawing to the sister, and the witness purposely left her sister alone for an interview with the appellant in his library, to be followed by a walk together home. The attempt to explain this letter as the result of dictation is not satisfactory to their Lordships. All that follows is consistent with our interjiretation of this letter, if we except the second proposal of instant adultery on or about the 21st of May, on the ground of the animal impulse which troubled the appellant; a proposal in its circumstances of time and place, and by reason of its antecedents and consequences, quite ns improbable as the charge of the 11th of May; nor can we omit to observe that the presence of the appellant at the meeting of the 21st of May, a fact denied by him in his pleading, rests on the [128] Judgment in the Case of [App. B. testimony of Mrs. Cumming. On her own showing this part of her evidence might have been corroborated by her husband, her sister, and the nurse. It has not been so corroborated. Each attempt at adultery is brought into the chain of events by an apparent disruption of links ; no events led up to it, none followed from it ; and this must always be the case where an unreal fact is introduced into a narrative of real events. We do not stop to inquire whether the picnic parties after the g'uilty proposal were one or two ; whether the sacrament was administered by Mr. Berney or Mr. Moss ; whether the dinner at the Hall was consented to by Mrs. Cumming for fear of creating suspicion in her husband's mind, or in the course of neighbourly intimacy. It is undisputed that the form of the intercourse continued in appear- ance to be of the friendly character which would be inconsistent with the charges now brought forward down to the 15th of June. After the 15th of June came that which Counsel have called the " quarrel arising out of the last interview with Miss Durrant/' resulting in the charge which led to the Articles we have now had to consider. We have assumed that the charges contained in the 6th and 7th Articles were grounded entirely on the statement of Mrs. Cumming, and we did so because in our judgment the final letter of the appellant after the loth of June is no corroboration of that state- ment. The facts relating to this letter appear to be, that in the course of the trial, long after the preliminary inquiry and the manifold delays of the pleadings, the Counsel for the respondent saw the appellant's letter, and then in the course of the trial gave notice to produce Mr. Cumming's letter to which the appellant's letter was an answer. This letter was not produced : whether it was lost or destroyed, or in existence, the appellant was supposed to be not admissible to prove. It was not produced, nor wasr secondary evidence admitted. We must take the evidence as it is on the record, and we do not see that any presumption ought to be made against the appellant by reason of its non-production under these circumstances. Apr. B.] Berney v. the Lord Bishop of Norwich. [ 129 ] The letter of the appellant before us is evidence on the 6th and 7th Articles against the appellant so far only as it amounts to an admission that he had solicited the chastity of Mrs. Cumming. It ought not to weigh against the appellant on this charge if it only indicates that he may have trespassed beyond some limits with Miss Durrant, and in our judgment that is the fair meaning of the letter. He writes, among other things, " that some little latitude is allowable when two persons ai'e much thrown together, and are daily meeting in mirth and fun. Nothing ca*n be farther from my wish than to give offence by exceeding its proper limits." He then offers his most sincere apology and his sorrow that any thing should have occurred to mar the harmony which had existed. Upon our construction this letter does not tend to prove the guilt imputed in the 6th and 7th charges. The appellant has a right to the presumption in favour of innocence till guilt be proved. In a criminal case the tribunal trying the accused cannot assume that Mrs. Cumming had complained of an attempt on her chastity, or that Mr. Cumuiing's letter charged the appellant therewith. We have the appellant's letter before us, and the words of that letter are to be taken in the ordinary sense. We assume upon the evidence that the complaint of Mrs. Cumming to her husband was made after the appellant had at- tempted some freedom with her sister. If that was the ground of the complaint in Mr. Cumming's letter, the whole of the appellant's letter would have a reasonable meaning ; whereas if the husband had complained not only of something that had passed between the appellant and Miss Durrant, but also that the appellant had solicited the chastity of his wife, the letter would be irrelevant to such a charge and an aggravation to the injury complained of. We therefore do not consider that the letter admits that the appellant had attempted the chastity of Mrs. Cumming. Upon this review of the evidence in support of the charges by Mrs. Cumming, we have weighed presumptions against counter- presumptions, confining our attention to the evidence relevant to each separate charge, and excluding any prejudice from a repetition of charges not supporting each other according to legal reasoning, [ 130 ] Judgment in the Case of [App. B. and we have come to the conclusion that the guilt imputed in the Articles 6 and 7 is not sufficiently proved. With respect to the charges contained in the 8th and 9th Articles, founded on the statement made by Miss Durrant, the substance of the statement, as far as it relates to the 29th of May, is, that being left by her sister in company with the appellant, for the purpose of seeing some drawings in his library, he then tried to kiss her, and said, " You need not be afraid, I will not get you into any trouble ; do come" up stairs " (meaning to the drawing-room) ; and on her refusal to do so he said, as he was walking home with her, " The drawing-room is unfurnished, and a roll of carpet is a poor substitute for a sofa." And as far as it relates to the 14th of June, the substance of her statement is, that the appellant, being in the drawing-room of the rectory, asked her to come and sit on the sofa, and on her refusal said, "Why not? I will not g'et you into any trouble." Tbat he then took hold of her wrist, and pulled her, adding, " Oh, do V on which she said, " Mr. Berney, if you do that, I shall scream and she then left the room. The charges contained in these Articles rest entirely on the statement by Miss Durrant. The letter of the appellant to Mr. Cumming after the 15th of June does not, in our opinion, admit that he had intended and endeavoured to have criminal intercourse with Miss Durrant, and this opinion is founded partly on the same reasons as induced us to think it did not admit that intention and endeavour with respect to Mrs. Cumming. Then if we confine our attention entirely to the statement made by this witness, and assume for the present purpose that reliance can be placed on the accuracy of her memory, still we do not see sufficient evidence that the defendant intended and endeavoured to obtain criminal inter- course with her, that which passed being capable of a less guilty construction. The parties were on such terms that the appellant might properly make advances to the lady if she chose to accept them ; and if, in doing so, he transgressed the bounds of good manners and decorum, and so gave offence, it does not follow that he had the guilt which the offended parties, going back Ait. 13.] Berney v. the Lord Bishop of Norwich. [ 131 ] over that which had passed without notice at the time, chose to impute. Then- Lordships, therefore, are prepared to recommend to Her Majesty that the sentence of the Court below should be reversed, and that the defendant should be discharged from further pro- ceedings. Their Lordships, in the exercise of their discretion, will further recommend that this reversal of the Judgment of the Court of Arches should be without costs to the appellant, either of the appeal or in the Court below, beiug of opinion that the Bishop in these proceedings was performing an onerous duty of the highest im- portance to the public, imposed upon him by law without recom- pense or protection, and that he acted throughout in perfect accordance with that duty. In thus reversing the decision below, without imposing costs on the respondent, we follow the precedent of Craig v. Farnall (re- ported on an incidental matter, 6 Moore, 446, and on the merits, Notes of Cases, vol. vi., 682), where the event of each proceeding was the same as in the present case, and it appears that the respondent paid his own costs, and not those of the appellant, Mr. Craig. IV. In the following case the Judicial Committee of the Privy Council was abnormally constituted under a particular method of proceeding, vid. sup. pp. 7 — 9), consequently a spiritual person sat upon the tribunal. Judgment of the Lords of the Judicial Committee of the Privy Council on the Appeal of Simpson v. Flamank,from the Court of Arches ; delivered ZMh June, 1867. Present: — Lord President; Archbishop of York; Lord Cairns; Lord Justice Turner ; Sir Edward Vaughan Williams ; Sir Richard Torin Kindersley. Their Lordships, having heard the case of the appellant / 2 [ 132 ] Judgment in the Case of [App. B. elaborately argued, have not thought it necessary to call upon the Counsel for the respondent, and are now prepared to state the reasons for the advice which they propose humbly to tender to Her Majesty in reference to this Appeal. It was, in the first place, contended that the Commission issued on the 20th of June, 1866, by the Lord Bishop of Exeter, did not state on the face of it that the offences mentioned in it had been committed within the two years defined by section 20 of the Act 3 & ■!< Vict., cap. 86, and that therefore the Report of the Com- missioners, and all the subsequent proceedings were invalid. Their Lordships are unable to see any foundation for this argu- ment. The statute, although it prescribes a limit of time within which the proceedings by Commission must be commenced, is silent as to any specific form of, or statements in, the Commission ; and the notice of the Commission, which the Statute recpuires to be given to the person accused, is to state the nature of the offence, with the names, addition, and residence of the party on whose application or motion the Commission is about to issue, and nothing more. The Commission, and the notice in the present case, allege with substantial, if not with technical distinctness, that the offences which are charged are continuing offences ; and the appellant, when he appeared before the Commissioners, objected by his Counsel, not that the offences were not in fact committed within two years, but merely that they were not alleged to have been so committed ; and this objection having been overruled, the appellant admitted the facts mentioned in each of the clwges. The appellant, therefore, has in no way been misled or prejudiced in the course of his defence before the Commission ; and this part of the Appeal against the form of the proceedings is, in their Lordships' opinion, wholly without justification. Their Lordships, however, although they have entered into the merits of this objection of the appellant, desire to express no dissent whatever from the view of the Dean of the Arches, that the proceedings before the Commissioners would not be open to appeal before the Arches Court on the score of irregularity ; and App. B.] Simpson v. Flamank. [133] this part of the Appeal to Her Majesty would, on this ground also, fail. It was argued, in the next place, that the decree or citation from the Arches Court ought to have stated, and did not state, that the offences alleged had heen committed within two years previous to the citation. The case, it was said, if sent by the Bishop, under section 13 of the Act, to be heard before the Court of Appeal of the Province, must be there " heard and determined according to the law and practice of such Court," and the practice of the Court of Arches, it was contended, required that the decree should show on the face of it jurisdiction in this respect. The appellant did not raise this objection in the Court of Arches by appearing under protest. On the contrary, he appeared absolutely to the citation, and prayed Articles, and afterwards opposed, on this ground, the admission of the Articles. Their Lordships will, in favour of the appellant, assume, although they would hesitate to decide, that it was open to him, after appearing and praying Articles, to object to the citation in point of form ; and they will also assume in his favour, although they think it open to doubt, that the statement in the citation of offences as continuing offences did not sufficiently show a jurisdiction under the statute. The statute, however, by section 13, provided that the Judge of the Arches Court should have power to make orders for expediting suits under the Act, or otherwise improving the practice of the Court. It appears that by the Rules or Orders of the Arches Court, made under this statute, and in force at the time of this citation, a form of citation or decree was given, approved of by the Judge; and in this form, obviously intended to shorten what had been previously in use, no provision is made for a specification of the offence, or for a statement of the time when or within which it was committed ; but the letters of request are referred to as remaining in the Registry of the Court, and as being the foundation of, and therefore showing the jurisdiction to issue, the decree. The form of deci-ee citing the ^appellant appears to their Lordships to have been in accordance with the form given by these orders ; and the letters of request which the decree 1 - refers to contain an express [134] Judgment in the Case of [App. B. statement that the offences alleged were committed within two years. The decree appears, therefore, to their Lordships to he in accordance with the practice of the Court ; and they are unable, as to this, as well as in the case of the other objection, to look upon it otherwise than as groundless, and made only for the purpose of delay. Their Lordships will humbly advise Her Majesty to dismiss the Appeal with costs. V. In the following case the Judicial Committee of the Privy Council was constituted under the general law, consequently no spiritual person sat upon the tribunal. Judgment of the Lords of the Judicial Committee of the Privy Council on the Appeal of Rug g v. Kingsmill, from the Court of Arches j delivered March 11, 186S. Present : Master of the Rolls ; Sir James W. Colvile ; Sir Edward Vaughan "Williams ; Sir Richard T. Kindersley ; Judge of the Admiralty Court. This is an appeal from a sentence pronounced by the late Judge of the Arches Court at Canterbury, whereby he affirmed the sentence of the Consistorial Court of Winchester, which decreed a faculty to issue to Mr. Kingsmill, authorizing the appropriation to that gentleman of a vault under the chancel of Sydmonton Church. This church is situate in the parish of Sydmonton, in the county of Southampton. It appears that the whole property, as well as the principal house in the parish, belongs to Mr. Kingsmill, and that, with the ex- ception of the consecrated ground upon which the church is built, he is proprietor of all the land up to the very walls of the church, which has no burial-ground attached to it. In the year 1849 there was a chapel which occupied the site App. B.] Btujg v. Kingsmill. [135] of the joresent building'. Under the chancel of this former chapel the father of Mr. Kingsmill possessed a vault. In 1849 the chapel was pulled down. In 1852 Sydmonton with Ecchinswell, which formerly formed part of the parish of Kingsclere, was formed, under an order in Council bearing' date 19th August, 1852, into a distinct and separate parish for Ecclesiastical purposes. In September, 1852, Mr. Rugg, the appellant, was instituted Incumbent of Ecchinswell with Sydmonton. In 1853 the present church was built by Mr. Kingsmill, at his sole cost and expense. In August, 1864, the church was consecrated. In August, 1865, the faculty now in cpaestion was granted by the Consistory of Winchester. Before a faculty, either to the parishioners in general or to a private inhabitant of the parish, can be decreed, the Ecclesiastical law requires that all persons interested in opposing the grant should have an opportunity of being heard before the Ordinary. The faculty which has been decreed in this case is, as has been stated, for a burial vault underneath the chancel. The objector to the grant of the faculty is the Incumbent, who is either Vicar or Perpetual Curate. The applicant for the faculty is the impropriate Rector, who resides in the parish, and whose father appears to have rebuilt and partially endowed, at his own cost, the church. The Vicar, or Perpetual Curate, although entitled to officiate in and to have free access to the chancel, has no right, strictly speaking, to fees for the erection of monumental tablets, or for the construction of vaults (in the very rare instances in which they should be allowed) in the chancel ; but he has certainly a persona ■\ln a ili, by reason of his general spiritual position as Incumbent, to oppose the grant of such a faculty as the present. The objections of the appellant to the sentences from which he appeals are various. First, he contends that the Ecclesiastical Court had no jurisdiction to grant this faculty. He supports this objection by reference to [136] Judgment in the Case of [App. B. the facts that there is no burial-ground attached to this chapel, — that no funeral has ever taken place there,— that the inhabitants of the district have consequently no general right of burial con- nected with the chapel, and his argument appeared to extend so far as to question the validity of the consecration of the chapel itself by the Bishop. Their Lordships, however, see no reason to doubt that the Bishop had full authority to consecrate this building, and they are of opinion that the objection founded on the absence of any burial- ground, and of any general right of burial on the part of the parishioners, did not render unlawful the act of the Ordinary, though it imposed upon him the duty of exercising with much caution the discretion which the law has vested in him as to granting a faculty of this kind. The appellant further contended that the grant of this faculty was bad upon the ground that the proper forms prescribed by the practice of the Ecclesiastical Court had not been complied with. Their Lordships, however, are of opinion that the case was regularly and properly conducted in the Diocesan Court of Winchester, and that this objection cannot be sustained. The appellant contends that this faculty could not be granted without his consent, but this contention is not supported by authority or practice. The Vicar, or Perpetual Curate, as has been stated, is entitled to be heard against the grant of the faculty, and his objections ought of course to be considered by the Ordinary, but the discretion of the Ordinary is not fettered or taken away by the dissent of the Vicar. There are objections, however, urged by the appellant which are of a more serious character. They may be all ranged under the general head — that the discretion of the Ordinary was unwisely exercised in the grant of this faculty. From the decision of the Ordinary an appeal lies to the Arch- bishop, and ultimately to the Crown, under the advice of the Judicial Committee of the Privy Council. If we think that the grant of this Faculty, though not absolutely illegal, was, as it at present stands, indiscreet and likely to give App. B.] Riigg v. Kingsmill. [137] rise to future troubles and difficulties in the church and district of Sydmonton, which were not duly considered by the Ecclesiastical Courts, we ought to advise Her Majesty accordingly. The appellant has pointed out to their Lordships that the ground upon which the church stands alone is consecrated, that the jurisdic- tion of the Ordinary depends upon the consecration of the ground, and does not extend over any part of the ground which comes up to the very walls of the church. The legal consequences of this circum- stance, upon which the appellant insists, will presently be noticed. Their Lordships, having regard to the peculiar circumstances of this church and parish, are not disposed to dissent from the opinion expressed by the Judge of the Arches Court, that the judicial dis- cretion of the local Ordinary was lawfully exercised in granting permission to Mr. Kingsmill to retain for the use of himself and his family, so long as they shall remain proprietors of Sydmonton Court (for this must of course be a provision contained in the instrument), the vault which has been constructed underneath the chancel. Their Lordships desire that it should be understood that they do not mean to express any approbation of a general practice of granting faculties for interments in chancels or the body of churches. On the contrary, they are of opinion that very excep- tional circumstances can alone justify such an exercise by the Ordinary of the discretion which the law has vested in him. With respect to the particular faculty the consideration of which is now before their Lordships, they have come to the conclusion that it ought not to be issued at the present time, in the manner proposed. Their Lordships are extremely reluctant to interfere with the exercise of the discretion in these matters by the local Ordinary, and they fully recognize the expediency of the rule of practice which discountenances such interference. But their Lordships think that the objection to the immediate issue of this faculty, while the only entrance to the vault is in the private and unconsecrated ground of Mr. Kingsmill, is deserving of great consideration. In the first place it is clear that the Ordinary could not compel the Incumbent by Ecclesiastical censures to perform the Burial Service in the [ 138 ] Judgment in the Case of [App. B. unconsecrated ground in which the only entrance to the vault is to be found. It has not been argued that the Ordinary could so compel the Incumbent : indeed it has been very properly admitted by the Counsel for Mr. Kingsmill, that no authority can be found for such a practice. In the next place, it appears to their Lordships to be inexpedient that the spot upon which a portion at least of the Burial Service is usually performed by the Minister should be exempt from the jurisdiction of the Ordinary. It is true that the Ordinary would have jurisdiction over the vault itself, and that the whole Service might lawfully, their Lord- ships think, in the peculiar circumstances of this case, be performed in the church, and the corpse afterwards taken into the garden, and deposited in the vault ; and their Lordships do not mean to say that the Ordinary might not be enabled to punish any unlawful proceedings which might precede or accompany the act of burial ; but it is also true that the absence of any Ecclesiastical jurisdiction over this spot of ground might afford an apparent impunity to evade the law, and thereby possibly cause a scandal in the parish. If, in the present state of circumstances, the grantee of this faculty or his successors in the mansion to which it is in fact attached, were hereafter, either perhaps on account of their having ceased to be members of the church, or on account of some quarrel with the Incumbent, or for any other motive, to cause a Service different from that which is enjoined in the Prayer Book to be read over the corpse, or if they were to place the body in the vault with- out the previous performance over it of any religious Service, in any case of this kind the present or future Ordinary might be con- siderably embarrassed in the exercise of his proper jurisdiction to remove the scandal, or to punish the authors of it. Their Lordships think that it is the duty of the Ordinary, when granting a privilegium of this kind, to take every precaution in his power against the possibility of a misuse by the grantee or his representative of the special favour which is conceded to him. They see no reason why the grant of this faculty to Mr. Kingsmill App. B.] Ibugg v. Kingsmill. [ 139 ] should not be made conditional upon his consenting 1 to allow a sufficient piece of ground near the aperture to the vault to be first duly consecrated for the sole and special purpose of burials in this vault. The jurisdiction of the Ordinary, ratione loci, would then be unquestionable ; and any impropriety with relation to the perform- ance of the Burial Service would be subject to his correction and control. Their Lordships, therefore, think that this cause should be remitted to the Court of Arches, with directions to issue the faculty in question whenever it has been duly certified to that Court that the consecration of the additional portion of ground has taken place ; and with power, if it should be deemed necessary, to vary the terms of the faculty by a reference to a recital of the fact of such consecration having been effected. Their Lordships think that both parties ought to bear their own costs incurred in this Court and in the Court of Arches. Their Lordships will humbly advise Her Majesty in accordance with the opinion which they have now expressed. VI. In the following case the Judicial Committee of the Privy Council was abnormally constituted under a particular method of proceeding (vid. sup. pp. 7 — 9), consequently a spiritual person sat upon the tribunal. Judgment of the Lords of the Judicial Committee of the Privy Council on the Appeal of Rugg v. the Bishop of Winchester , from the Court of Arches ; delivered on the 23rd December, 1868. Present : Lord Chancellor ; Archbishop of York ; Lord Chelms- ford ; Lord Westbury ; Sir William Erie ; Sir James W. Colville. The appellant in this case is the Incumbent of the benefice of Ecchinswell with Sydmonton, in the county of Southampton, and he appeals from a sentence of the Arches Court, pronounced in a [ 140 ] Judgment in the Case of [App. B. cause instituted under the Clergy Discipline Act, by which sentence the Judge declared that the appellant had offended against the Laws Ecclesiastical by not having regularly performed divine ser- vice in the church or chapel of St. Mary, Sydmonton, as required by the Lord Bishop of the diocese, and monished him to resume and continue to perform, or to provide for the performance of, public divine service, as prescribed in the Book of Common Prayer, in the said church or chapel of St. Mary, Sydmonton, and further condemned him in costs. It appears that Ecchinswell and Sydmonton were two ancient chapelries belonging to the vicarage of Kingsclere, with a church or chapel in each of the chapelries, each chapelry being also a separate parish for all civil purposes; and in the year 1852 a proposal or scheme for the union of the two chapelries into a separate parish and benefice, and for their separation from the vicarage of Kings- clere, was set on foot by the Bishop of Winchester, under the pro- visions of the 1 & 2 Vict., cap. 106, and the 2 & 3 Vict., cap. 43. This scheme was certified by the Archbishop of Canterbury to the Queen in Council, and all necessary consents having been given, it was ultimately approved of by Her Majesty in Council, and became binding under the Acts referred to. By this scheme it was provided that the two chapelries of Ecchinswell and Sydmonton should be separated from the vicarage of Kingsclere, and be united so as to form together a separate parish for Ecclesiastical purposes, and a perpetual curacy and benefice, by the name or style of the perpetual curacy of Ecchinswell with Sydmonton. That the proposed separate parish and benefice should be subject to the same Ecclesiastical jurisdiction as the said vicarage of Kingsclere, and the Incumbent of such separate parish and bene- fice should have exclusive cure of souls within the limits of the same. That two churchwardens should be annually chosen in the customary manner, and at the time when churchwardens are usually appointed, in and for each of the said chapelries ; and every person so chosen should be duly admitted, and should do all things pertaining to the office of churchwarden as to Ecclesiastical matters within the said chapelries. That the freehold of the churches and App. B.] Ritgg v. the Bishop of Winchester. [ 141 ] churchyards of Eechinswell and Sydmonton, so far as the same might be vested in or belong- to the Incumbent for the time being of the said vicarage, and also all the glebe-lands of and belonging to the said vicarage situate in the said cbapelries of Eechinswell and Sydmonton, with the appurtenances; and also (except as thereinafter mentioned) all so much and such part of the tithe rent- charges or other payments or compositions for or in lieu of tithes belonging to the said vicarage as arose and accrued, or were payable within or in respect of the said cbapelries of Eechinswell and Sydmonton, should belong and be attached to the said pro- posed separate benefice of Eechinswell with Sydmonton for ever, and be held, received, and enjoyed by the Incumbent thereof for the time being, accordingly. That the parishioners of Eechinswell and Sydmonton should be liable as theretofore to the expenses of repair- ing and maintaining their respective churches, and the other expenses incidental to the due performance of divine service therein respectively, and should be exempt from all rates, charges, and assessments to be made for or in respect of the church of Kingsclere aforesaid, or for or in respect of any other church or chapel situate elsewhere than within the limits of the said proposed separate parish. That the patronage or right of nomination of or to the said proposed separate benefice of Eechinswell with Sydmonton should be and remain in the Vicar of the said vicarage and parish church of Kingsclere for the time being and his successors for ever. That the parishioners of Eechinswell and Sydmonton should be entitled, as theretofore, to accommodation in their said respective churches, but should not henceforth be entitled to any accommoda- tion in the parish church of Kingsclere. It is enacted by the statutes already mentioned, that a scheme thus approved of, and made an Order in Council, shall come into operation forthwith, and be binding on all persons whatsoever, whether the benefice or benefices thereby affected be or be not vacant. Shortly after the date of the Order in Council, the appellant became the Incumbent of the parish or benefice thus created. The church at Sydmonton was at this time pulled down for the purpose [142] Judgment in the Case of [App. B. of being rebuilt, and it was rebuilt on the lines of the ancient structure in 1853. It appears that from the year in which the new church at Sydmonton was opened for divine worship, until 1863, service was performed in the church by the appellant. Some doubt then arose whether the new building 1 required reconsecration ; and the ap- pellant, taking advantage of this doubt, closed the church, and refused his consent to its being reconsecrated. To such an extent was his perverse conduct carried, that on the day appointed for the consecration, the 17th August, 1865, he caused the door of the church to be locked, carried away the key, and refused to be present at the ceremony. There can be no justification or excuse for such conduct. If the new church required reconsecration (which, as it was built on the site of the old church, may well be doubted), it was the duty of the appellant to have promoted and assisted such reconsecration. The appellant has since contended that the consecration is invalid, as it took place without his consent, and even against his protest. But their Lordships entertain no doubt that even assuming reconsecration to have been necessary, the appellant, having regard to the site of the building, the purpose for which it was erected, and the provisions of the Order in Council, was not in a position to have refused his assent to the consecration. In the consideration of this case, therefore, the church at Sydmonton must be taken to be a lawfully consecrated church. On the 5th May, 1867, the appellant gave public notice in the church at Sydmonton that there would be no more service in that church ; and for the two following Sundays divine service was not performed in it. Complaint having been made to the Bishop of Winchester, he, on the 23rd May, 1867, by a letter from his Secretary to the appellant, desired to know whether the infor- mation he had received was correct, and if so, on what ground he had suspended the service. To this letter the appellant on the 27th May, 1867, replied in these terms: "In answer to your letter addressed to me at the request of the Bishop of Winchester, I have to inform you, that I have discontinued the service at Sydmonton, and have returned to the two full services in the church App. B.] Rugg v. the Bishop of Winchester. [ 143 ] at Eecbinswell as performed by me during the first four years of my charge of this parish. " I think I shall best discharge my duty to my parishioners generally by the return to the two full services (morning and evening) here, and that this will be more strictly in accordance with the requirements of both the Common and Ecclesiastical Law, than having only one service here in order that there may be one in a building which I cannot recognize as ever having been lawfully consecrated, and for the sake merely of one family (not much resident) and their immediate dependents, when the great bulk (more than nine-tenths) of my parishioners live nearer to Ecchins- well church, where they can better and more conveniently attend, than by having to go out of their way a mile or two more distant to Sydmonton House " The following letter, dated the 30th May, 1867, was then written by the Bishop's Secretaries to the appel- lant : — " We have laid your letter of the 27th before the Bishop of Winchester. We are desired to state that the Bishop requires you to resume the service at Sydmonton church on Sunday next, and to continue the performance of such service in future ; and we beg to add that we have forwarded a copy of this letter to the churchwarden, and requested him to inform the Bishop whether his order is complied with." The following is the reply of the appellant to the order of the Bishop: — " Ecchinswell, 31st May, 1867. In reply to your communication of yesterday from the Bishop of Winchester, I beg you to inform his Lordship that, with all due deference to his authority, I see neither the necessity nor the obligation, under existing circumstances, of performing divine service at Sydmonton, and it is not my intention to resume the service there until every impediment be removed, and the church (so called) has been judicially decided to be lawfully consecrated. I have, moreover, to inform you that there is no churchwarden at Sydmonton, and therefore no need to wait for a reply to any copy of a letter or request to such to know whether his Lordship's order has been complied with or not.'" The Bishop, finding that the appellant had determined to con- [ 144 ] Judgment in the Case of [App. B. tinue to keep the church at Sydmonton closed, and to disregard his order that the service in it should he resumed, instituted a suit against the appellant in the Arches Court of Canterbury, under the provisions of the Clergy Discipline Act, 3 & 4 Vict., cap. 86. The Letters of Request stated that the appellant was charged with having offended against the Laws Ecclesiastical by having omitted to perform or to provide for the performance of public divine service as prescribed in the Book of Common Prayer, and administration of the sacraments and other rights and ceremonies, in the Church of St. Mary, Sydmonton, on four successive Sundays, in the months of May and June, 1867, and therefore prayed that a citation might be issued to him to appear to answer to certain articles, &c, to be administered. The appellant appeared under protest, and by an act or petition objected that by virtue of divers provisions contained in 1 & 2 Vict., cap. 106, and more particularly in sections 77 and 109, the Court had no jurisdiction to administer articles to him for the alleged offence of omitting to perform or provide for the performance of public divine service in the alleged church of St. Mary, Syd- monton ; That the building, called the church of St. Mary, Sydmonton, is not a church, as falsely suggested ; That an illegal ceremony of consecration had been performed within the building; That the appellant performed two full services in the parish church of Ecchinswell with Sydmonton on the Sundays mentioned in the Letters of Request, and that by reason of the premises the Court had no jurisdiction to entertain a suit to compel him to answer Articles for not performing divine service in the building. The Dean of the Arches overruled the protest, deciding that the offence charged was an Ecclesiastical offence cognizable under the provisions of the 3rd & 4th Vict., cap. 86, and assigned the appellant to appear absolutely. Articles were accordingly brought in, which charged the appel- lant with having offended against the Common Ecclesiastical Law of the realm, and the statute 13 & 14 Chas. II., cap. 4, sect. 2, App. B.] Rngg v. the Bishop of Winchester. [ 145 ] by omitting to perform divine service in the Church of St. Mary, Sydmonton, at the times mentioned, and copies of the before- mentioned letters between the Bishop's secretaries and the appellant were annexed to and made part of the Articles. The answer to the Articles principally consisted of a denial of any liability on the appellant to perform any divine service in St. Mary's, Sydmonton, on the ground of its being an unconsecrated building, and a justification for the omission charged, by reason of his having performed two full services in the church of Ecchinswell. The Dean of the Arches held that the Bishop had rightly exercised his discretion in commanding the appellant to perform divine service in the church at Sydmonton, and admonished him to obey the directions of his Ordinary. Upon the hearing of the Appeal from this Judgment, the appel- lant in person urged various objections, some of which were of an extremely frivolous character. He insisted upon the illegality of the consecration of the church at Sydmonton, for which objection, as already shown, there is no foundation. He also objected that an ancient footway or entrance to the church had been stopped up by the patron, and a more circuitous road provided, and that it is by sufferance of the patron only that the former approach can be used. It is clear that no defence against the present charge can be rested upon this circumstance. If there has been any improper obstruction of a right of way to the church, the appellant has his appropriate remedy. But the appellant principally rested his defence to the proceedings against him upon the ground that there being two churches or places of public worship in the parish of Ecchinswell with Syd- monton, he had a right to shut the church against the parishioners of Sydmonton, if, in his discretion, he considered it more ex- pedient to confine the public worship in the parish to the church at Ecchinswell. The question is whether by so acting and persevering in keeping the church at Sydmonton closed in disobedience to the order of the Bishop, he has committed an ecclesiastical offence. The duty of the appellant is thus stated in the 1st Article. That K [ 146 ] Judgment in the Case of [App. B. by the Common Ecclesiastical Law of the realm, and by the statute 13 & 14 Car. II., cap. 4, sec. 2, every clerk in Holy Orders of the United Church of England and Ireland is bound on every Sunday (otherwise called Lord's day) in the year to perform or to provide for the performance of public divine service, as prescribed in the Book of Common Prayer, and administration of the Sacra- ments and other rites and ceremonies, according- to the use in the Church of England, in every consecrated church or chapel of the ecclesiastical parish or benefice of which he is the incumbent. It appears to their Lordships that the Act of Uniformity, 13 & 14 Chas. II., does not apply to this case, and that it is not a duty imposed by that Act upon an incumbent who has two churches or places of public worship within his parish to perform divine service in both of them. The words of the Act, " Every church, chapel, or other place of public worship within the realm of England," must be read in each church, &c, in and for which there is a distinct minister. The appellant cannot, therefore, be said to have offended against the Act of Uniformity by confining the performance of morning and evening service to one of the churches in his parish, and not providing for the same services in the other church, there being nothing in the Act requiring him to employ a curate, in order that the services may be duly performed in both churches. But the question is whether the appellant was not bound by the Common Ecclesiastical Law (to use the language of the Articles) " to perform or to provide for the performance of public divine service in every consecrated church or chapel of the parish or benefice of which he is the incumbent." If so, the Article which charges an offence against the Common Ecclesiastical Law, and also against the statute 13 & 14 Car. II., will be good, although the offence is only against the common law, and not against the statute, as the latter allegation may be regarded as mere surplusage. There can be no doubt that the Order in Council which united the chapelries of Ecchinswell and Sydmonton into a separate parish or benefice, intended that there should be two churches (as they App. B.] Rugg v. the Bishop of Winchester. [ 147 ] are called in the order) within the parish, in hoth of which public worship should he performed. This appears plainly from the provisions contained in the order, " that the parishioners of Ecchinswell and Sydmonton should be liable, as theretofore, to the expenses of repairing- and maintaining their respective churches and the other expenses incidental to the due performance of divine service therein respectively," and " that the parishioners of Ecchins- well and Sydmonton shall be entitled as heretofore to accommo- dation in their respective churches." The appellant accepted the benefice with a full knowledge that there were two churches or chapels within the parish in which, by the instrument creating the benefice, the duty of using each as a place of religious worship, and performing some service therein, is laid upon him. If the question with the Bishop had been as to the nature and extent of the services which the appellant was bound to perform in these churches respectively, the ease might have been attended with more difficulty. But the appellant takes upon himself to shut up the church at Sydmonton, and positively to refuse to perform any divine service in it, assigning reasons for this wilful neglect of the duty which he has undertaken, every one of which is insufficient, and claiming the liberty of choosing which of the two churches in his parish he will keep open for divine worship, which, if it were conceded to him, would, of course, equally enable him to close the church at Ecchinswell, and perform the whole of the divine services in the parish in the church at Sydmonton. If, then, the appellant has neglected or refused to perform a spiritual duty which was imposed upon him by his induction into the benefice, has he not committed an offence against the Eccle- siastical Law ? This in itself might render him liable to be pro- ceeded against under the Church Discipline Act. But, beyond his neglect of duty, he has exposed himself to such a proceeding by his contumacious refusal to obey the lawful order of his Bishop. The duty of performing some divine service in the church at Sydmonton having been imposed upon the appellant, and he having shown his intention of violating it by shutting up the church and giving [ 148 ] Judgment m the Case of [App. B. public notice that there would be no more service there, the Bishop, in the exercise of the authority vested in him, made an order upon him to resume the services in that church. If the appellant had entertained a sincere wish to do his duty to the parishioners, he would have consulted the Bishop as to the best mode of meeting their requirements and his own obligation ; but instead of adopting this course, he defied the Bishop's authority under the semblance of deference to it, and denying the necessity and the obligation of performing any divine service at Sydmonton, expressed his intention not to resume the service there " until the church (so called) had been judicially decided to be lawfully consecrated.'" The appellant, therefore, has committed an offence against the Common Ecclesiastical Law, by wilful neglect of duty, and by wilful disobedience to the order of the Bishop directing him to perform that duty. In his act or protest, the appellant objected to the jurisdiction of the Court, upon the ground that the proceedings should have been taken (if at all) under the 1 & 2 Vict., cap. 106, referring to sections 77 and 109 of that Act. It may be doubted whether the Act referred to is applicable to this case. By the 77th section it is provided that whenever the Bishop shall see reason to believe that the Ecclesiastical duties of any benefice are inadequately" per- formed, it shall be lawful for him to issue a Commission, to be constituted in the manner prescribed ; and if the Commissioners report to the Bishop that in their opinion the duties of such benefice are inadequately performed, he may require the spiritual person holding the benefice to appoint a curate. And the 109th section enacts, that in every case in which juris- diction is given to the Bishop of the diocese, or to any Archbishop, under the provisions of this Act, and for the purposes thereof, and the enforcing the due execution of the provisions thereof, all other and concurrent jurisdictions in respect thereof shall wholly cease ; and no other jurisdiction in relation to the provisions of this Act shall be used, exercised, or enforced, save and except such jurisdiction of the Bishop and Archbishop under this Act. It may be open to doubt whether the shutting up one of two App. B.] Rugg v. the Bishop of Winchester. [ 149 ] churches in a parish where divine worship is required to be per- formed in both, comes within the meaning of the words " in- adequate performance of Ecclesiastical duties," and can be dealt with as falling' under the 77th section. But assuming- that it might, if the act done involves an Ecclesiastical offence, does the 109th section of the 1st & 2nd Vict., cap. 106, compel the Bishop to adopt the course pointed out by the statute, not for visiting the offence, but for enforcing the proper performance of the duties which, by reason of the offence, have been inadequately performed ? The words of the 109th section are, that no other jurisdiction in relation to the provisions of the Act shall be used. Therefore, if the Bishop were proceeding to compel the appellant to appoint a curate, he must have pursued the course prescribed by the Act, and have issued a preliminary Commission of Inquiry. But his proceeding being for an offence committed by the appellant against the Common Ecclesiastical Law, the jurisdiction of the Court is not taken away by the 109th section, and the suit is properly instituted under the Church Discipline Act. Their Lordships are of opinion that the appellant, by shutting up the church at Sydmonton, and refusing to perform divine service there, notwithstanding the mandate of the Bishop, has committed an Ecclesiastical offence, and they will, therefore, humbly recom- mend to Her Majesty that the Judgment of the Arches Court should be affirmed, and the Appeal dismissed with costs. VII. In the following case the Judicial Committee of the Privy Council was abnormally constituted under a particular method of proceeding, (vid. sup. pp. 7 — 9), consequently a spiritual person sat upon the tribunal. Judgment of the Lords of the Judicial Committee of the Privy Council on the Appeal of Martin v. Mackonochie, from the Court of Arches, delivered on the 23rd December, 1868. Present at the hearing : Lord Chancellor Cairns ; Archbishop of [150] Judgment m the Case of [App. B. York j Lord Chelmsford ; Lord Westbury ; Sir William Erie ; Sir James W. Col vile. The case of Martin v. Mackonochie, commenced before the Bishop of London, was, under the provisions of the Clergy Discipline Act, sent by the Bishop to the Court of the Archbishop of Canterbury for trial in the first instance ; and having- been fully heard before the J udge of the Arches Court, resulted in a decree made on the 28th of March, 1868. Mr. Mackonochie, the clerk in Holy Orders against whom these proceedings were directed, was charged with four offences against the laws ecclesiastical, viz. — 1. The elevation during or after the Prayer of Consecration in the Order of the Administration of the Holy Communion of the paten and cup ; and the kneeling or prostrating himself before the consecrated elements ; 2. Using lighted candles on the Communion-table during the celebration of the Holy Communion, when such candles were not wanted for the purpose of giving light ; 3. Using' incense in the celebration of the Holy Communion ; 4. Mixing water with the wine used in the administration of the Holy Communion. The learned Judge of the Arches Court by his Decree sustained the 3rd and 4th of these charges, and admonished Mr. Mackonochie to abstain for the future from the use of incense, and from mixing water with the wine as pleaded in the Articles. Against this part of the decree there is no Appeal. The 2nd charge as to lights was not sustained, the learned Judge holding that it was lawful to place two lighted candles on the Communion-table during the time of the Holy Communion. Against this the promoter has appealed. As to the 1st charge, Mr. Mackonochie, while admitting the elevation of the consecrated elements at the times and in the manner alleged, pleaded that he had discontinued the practice before the institution of the suit. The learned Judge therefore admonished Mr. Mackonochie not to recui* to the practice ; but as to the other part of the charge, namely, the kneeling and pro- App. B.] Martin v. Mackonochie. [ 151 ] strating himself before the consecrated elements, the learned Judge held that if Mr. Mackonochie had committed any error in that respect, it was one which should not form the subject of a criminal prosecution, but should be referred to the Bishop, in order that he might exercise his discretion thereon. The promoter appeals from the latter part of the decision of the learned Judge on this charge, and he also complains in his appeal that the defendant was not ordered to pay the costs of the suit. The questions thus raised by the Appeal were very fully and ably argued before this ti'ibunal, and their Lordships have now to state their reasons for the advice which they propose humbly to offer to Her Majesty. They will advert first to the charge of kneeling before the con- secrated elements. It is .necessary to refer to the whole of the charge on this head as contained in the 3rd and 4th Articles, although some of the acts charged are said to have been discontinued before the suit com- menced. These Articles run thus : — " Third. That the said Alexander Heriot Mackonochie has in his said church, and within two years last past (to wit, on Sunday, the 23rd day of December, on Christmas Day last past, and on Sunday, the 30th day of December, all in the year of our Lord 1866), during the prayer of consecration in the Order of the Administration of the Holy Communion, elevated the paten above his head, and permitted and sanctioned such elevation ; and taken into his hands the cup, and elevated it above his head during the prayer of consecration aforesaid, and permitted and sanctioned the cup to be so taken and elevated; and knelt or prostrated himself before the consecrated elements during the prayer of consecration, and permitted and sanctioned such kneeling or prostrating by other clerks in Holy Orders. " Fourth. That such elevation of the paten, and such taking and elevation of the cup, and sueh kneeling and prostrating, are severally unlawful additions to and variations from the form and order prescribed and appointed by the said statutes, and by the said Book of Common Prayer, and Administration of the Sacraments, and other rites and ceremonies of the Church, and are contrary to the said statutes, and to the 14th, 36th, and 38th of the said constitutions and canons, and also to an Act of Parliament passed in a Session of Parliament holden in the thirteenth year of Queen Elizabeth, chapter 12, and to the 25th and 28th of the Articles of Keligion therein referred to." Mr. Mackonochie's answer to these Articles is as follows : — " Third. Whereas in the 3rd Article given in and admitted as amended in this cause, [152] Judgment in the Case of [App. B. it is pleaded that the said Alexander Hcriot Maekouochie has, to wit— on Sunday, the 23rd day of December, on Christmas Day last past, on Sunday, the 30th day of December, all in the year 1866, during the prayer of consecration in the Order of the Administration of the Holy Communion, elevated the paten above his head, and permitted and sanctioned such elevation, and taken into his hands the cup and elevated it above his head during the prayer of consecration aforesaid, and permitted and sanctioned the cup so to be taken and elevated, and knelt or prostrated himself before the consecrated di luents during the prayer of consecration, and permitted and sanctioned such kneeling or prostration by other clerks in Holy Orders. Now the same is in part untruly pleaded, for the party proponent alleges that whilst he admits that the said Alexander Heriot Maekoiiochie did, on the said two Sundays and on Christmas Day, during the prayer of consecration kneel and sanction kneeling by other clerks before the Lord's Table, he denies that his said party did on the said two Sundays, and on the said Christmas Day, kneel or prostrate himself before the consecrated elements, or permit and sanction such kneeling or prostration by other clerks in Holy Orders, as in the 3rd Article pleaded. And he further alleges, that whilst he admits that he did, on the said two Sundays and Christmas Day, in the said 3rd Article mentioned, elevate and sanction the elevation> by other clerks, of the paten and cup above his head, as is in the said 3rd Article pleaded ; yet that such elevation of the paten and cup has been wholly discontinued by the said Alexander Heriot Mackonochie during the Administration of the Holy Communion ever since the said 30th day of December, 1866, and long prior to the institution of this suit. That such practice was discontinued in consequence of legal advice, and in compliance with the expressed wish of the Lord Bishop of the diocese of London, and with a resolution of Convocation, as was well known to the promoter of this suit before he instituted the same." Before turning to the evidence in support of this charge, it will be proper to consider a preliminary objection which was taken to the Articles, and to the letters of request and citation by which they were preceded. It was said that although the Articles alleged that the respondent " knelt or prostrated himself before the consecrated elements during the prayer of consecration," the letters of request and citation were for " bowing, kneeling, or prostrating himself before the consecrated elements during or after the prayer of consecration." It was contended that the citation showed no offence, for it might be taken, as in an indictment, in the sense most favourable to the accused, and as affirming nothing more than that he bowed after the prayer of consecration, which, it was said, would or might be innocent. And the Articles, it was argued, by omitting this alternative, were a departure from the citation. To this it might be sufficient to reply that the objection taken to App. B.] Martin v. Mackonochie. [ 153 ] this citation — a citation, which it is not disputed, does contain other charges cognizable by the Ecclesiastical Court — is an ob- jection of a strictly technical character, and one which would be waived by the appearance of the respondent as he did appear, without protest, and by praying for Articles. But passing from this, it is to be observed that the supposed analogy between the citation and an indictment, on which this objection is founded, entirely fails. The Act of Uniformity, 1 Eliz., cap. 2, contemplates two modes of procedure for enforcing its provisions ; one by in- dictment, under section 4, and the other by process for admonition before the Ordinary, under section 23 ; and it is under the latter and not the former section that the present proceedings are taken. Moreover, in the case of an indictment followed by judgment, the indictment and judgment become the record, and the judgment is read with reference to the indictment; and if the indictment is open to a construction which is innocent, and would not sustain a j udgment, the judgment would be vicious, and must be arrested ; whereas the citation is followed by Articles, which in turn are met by a plea ; and the Court, after hearing evidence, defines by its sentence how much of the charge it considers to be relevant, and to have been proved, and thereby corrects any excess of averment in the citation. The preliminary objection, therefore, on this charge their Lord- ships feel themselves obliged to reper". It is necessary now to examine the evidence adduced in support of the charge ; and in doing this, and in considering the character of the charge itself, their Lordships will confine their attention to the conduct and acts of the respondent as the celebrating or con- secrating minister. The allegations and proof as to " sanctioning and permitting other clerks" are so vague that no weight could be, and in the argument little weight was attempted to be, given to them. * The chief witness in support of the charge is Mr. Beames. He has not been cross-examined, and no evidence has been adduced for the respondent. The statement of Mr. Beames may therefore be taken to be uncontro verted. He speaks of the 23rd and 25th of [ 154 ] Judgment in the Case of [App. B. December, 1866. On both of these occasions the respondent was the celebrant at the Communion Service. The effect of the answers of Mr. Beames may be stated to be that the respondent com- menced to read the prayer of consecration standing; that on reaching the words " the same night that He was betrayed/'' he elevated the paten above his head, returned it to its place on the Communion-table, and then knelt on his knees towards the table, inclining or prostrating his head towards the ground ; that he then rose and resumed the prayer ; that when, in the further course of the prayer, he took the chalice, he elevated it above his head as he had done the paten, replaced it on the Communion-table, and knelt or prostrated himself as before. The elevation of the elements has, as already said, been dis- continued, and as to the kneeling after the consecration of the chalice, it might possibly be suggested that it was a kneeling after finish- ing the prayer of consecration, and with reference to the next part of the service in which the celebrant becomes himself the recipient. Omitting, therefore, for the present, the elevation and the second kneeling, the evidence remains that the respondent, after com- mencing the prayer of consecration standing, paused in the middle of the prayer, knelt down, inclining or prostrating his head to- wards the ground, and then, rising up again, continued the prayer standing. In order to bring the condu6t of the respondent on this head to the test of Ecclesiastical law, it is proper now to turn to the rubric of the Order of the Administration of the Holy Communion. The Lord's Prayer and the collect, with which the service com- mences, are to be said by the priest " standing at the noi'th side of the table." The priest is then to turn to the people and rehearse distinctly all the ten commandments, " the people still kneeling," implying that the priest is still to stand. This is to be followed by one of the collects for the Sovereign, " the priest standing as before," and by the collect for the day. The priest is then to read the Epistle and Gospel, and to say the Creed, during which no change of attitude is indicated. Arp. B.] Martin v. MacJconochie. [ 155 ] After the sermon, when the priest has returned to the Lord's Table, the sentences of the offertory, the prayer for the Church militant, and the exhortations are to be "said" by the priest, without any direction as to change of posture ; and then, at the confession, he, as well as all the people, is directed to kneel. For the absolution and the sentences which follow the priest is directed to stand up, and to turn himself to the people ; for the words " It is very meet," &c, and the " prefaces," he is to turn to the Lord's Table, and he is then to kneel down at the Lord's Table, and, in the name of all the recipients, say the prayer " We do not presume," &c. The rubric before the prayer of consecration then follows, and is in these words : — " When the priest, standing- before the table, hath so ordered the bread and wine that he may with the more readiness and decency break the bread before the people, and take the cup into his hands, he shall say the prayer of consecration, as follows." Their Lordships entertain no doubt on the construction of this rubric, that the priest is intended to continue in one posture during the prayer, and not to change from standing to kneeling, or vice versa ; and it appears to them equally certain that the priest is intended to stand, and" not to kneel. They think that the words " standing before the table" apply to the whole sentence ; and they think this is made more apparent by the consideration that acts are to be done by the priest before the people as the prayer proceeds (such as taking the paten and chalice into his hands, breaking the bread, and laying his hand on the various vessels) which could only be done in the attitude of standing. This being, in their Lordships' opinion, the proper construction of the rubric, it is clear that the respondent, by the posture or change of posture which he has adopted during the prayer, has violated the rubric, and committed an offence within the meaning of the 13 & 14 Car. II., cap. 4, sects. 2, 17, 24, taken in connexion with the 1 Eliz., cap. 2, and punishable by admonition under sect. 23 of the latter statute. It was contended, on behalf of the respondent, that the act com- [ 156 ] Judgment in the Case of [App. B. plained of was one of those minute details which could not be taken to be covered by the provisions of the rubric ; that the rubric could not be considered as exhaustive in its directions, for no order could be shown in it requiring the celebrating minister to kneel while himself receiving the bread and wine; and that there was no charge or evidence against the respondent that in kneeling after the consecration any adoration of the sacrament was intended. Their Lordships are of opinion that it is not open to a minister of the Church, or even to their Lordships in advising Her Majesty as the highest Ecclesiastical Tribunal of Appeal, to draw a dis- tinction, in acts which are a departure from or violation of the rubric, between those which are important and those which appear to be trivial. The object of a Statute of Uniformity is, as its preamble expresses, to produce "an universal agreement in the public worship of Almighty God," an object which would be wholly frustrated if each minister, on his own view of the relative import- ance of the details of the service, were to be at liberty to omit, to add to, or to alter any of those details. The rule upon this subject has been already laid down by the Judicial Committee in TVesterton v. Liddell, and their Lordships are disposed entirely to adhere to it : " In the performance of the services, rites, and ceremonies ordered by the Prayer Book, the directions contained in it must be strictly observed ; no omission and no addition can be permitted." There would, indeed, be no difficulty in showing that the posture of the celebrating minister during all the parts of the Communion Service was, and that for obvious reasons, deemed to be of no small importance in the changes introduced into the Prayer Book at and after the Reformation. The various stages of the service are, as has already been shown, fenced and guarded by directions of the most exact kind, as to standing and kneeling, the former attitude being prescribed even for prayers, during which a direction to kneel might have been expected. And it is not immaterial to observe, that whereas in the First Prayer Book of King Edward VI. there was contained at the end a rubric in these words : — " As touching kneeling, crossing, holding up of hands, knocking upon the breast, and other gestures, they may be used or left, as every * App. B.] Martin v. Mackonochie. 157 ] man's devotion serveth, without blame :" this rubric was, in the Second Prayer Book of Edward VI. and in all the subsequent Prayer Books, omitted. The argument against the completeness of the directions as to posture, derived from a supposed absence of any order that the celebrant shall kneel whilst himself receiving, does not appear to their Lordships to be well founded. In the rubric as to the reception of the sacramental bread and wine, the words " all meekly kneeling " apply, as their Lordships think, to the celebrant, as well as to other clerks, and to the people. And this is made more clear by the rubric termed the Black Rubric, added at the end of the service. It is true, as was contended, that there is no charge against the respondent, that the kneeling complained of was intended as an act of adoration of the sacramental elements. Such a charge, involving as it would an inquiry into sentiments and feelings of which no tribunal can adequately judge, would be difficult of proof; and the rubrical enactments appear to have been wisely confined to prescribing an order of service free ft*om those outward move- ments which had become more or less associated with errors in doctrine which, at the Reformation, were renounced. If this order is departed from, it is, as their Lordships think, unnecessary to inquire into the motive by which the departure has been oc- casioned. Another argument urged on behalf of the respondent should also be noticed. Mr. James contended with great ability that the charge as to kneeling during the prayer of consecration was made in con- nexion with the charge as to the elevation of the sacrament, and that the charge of kneeling was only an aggravation of that of elevation, which had been discontinued. This no doubt is so ; but the kneeling under the circumstances described, being itself, as their Lordships think it is, a violation of the rubric, they do not think that the judgment of the Court should the less be passed upon it because the other part of the charge, namely, that as to the elevation, is no longer resisted. It only remains, on this part of the case, to advert to the very ~ 158 ] Judgment in the Case of [Ait. B. learned and elaborate Judgment of the Dean of Arches. That learned Judge states that the rubric does not give precise direc- tions that the celebrant should kneel at the times when it appears that the respondent does kneel ; that he is far from saying it is not legally competent "to him to adopt this attitude of devotion; and that it cannot be contended that at some time or other he must not kneel during the celebration, although no directions as to his kneel- ing at all are given by the rubric. Their Lordships, however, think, as they read the rubric, that directions as to the celebrant kneeling at a particular time of the celebration, namely when he himself receives the sacrament, are given ; and that at the time when it appears that the respondent kneels, namely during the prayer of consecration, the directions in the rubric are precise that he should stand and not kneel. The learned Judge further observes that if Mr. Mackonochie has committed any error in this respect, it is one which should not form the subject of a criminal prosecution, but belongs to the category of cases which should be referred to the Bishop. This category the learned Judge had previously defined to be — " Things neither ordered nor prohibited expressly or by implica- tion, but the doing or use of which must be governed by the living discretion of some person in authority." And as to cases in this category, the learned Judge considered that, according to the preface to the Prayer Book, " the parties that doubt or diversely take any thing should always resort to the Bishop of the diocese." Their Lordships do not think it necessary to consider minutely the cases to which, or the manner in which, this direction in the preface to the Prayer Book is applicable, inasmuch as in their opinion the charge against the respondent, with which they are now dealing, involves what is expressly ordered and prohibited by the rubric, and is therefore a matter in which the Bishop could have no jurisdiction to modify or dispense with the rubrical pro- visions. On the whole, their Lordships are of opinion that the charge against the respondent of kneeling during the prayer of consecra- App. B.] Martin v. Mackonochie. [159] tion has been sustained, and that he should be admonished, not only not to recur to the elevation of the paten and the cup as pleaded in the 3rd Article, but also to abstain for the future from kneeling or prostrating' himself before the consecrated elements during the prayer of consecration, as in the same Article also pleaded. The other charge involved in this Appeal is that of using lighted candles on the Communion-table during the celebration of the Holy Communion, when such candles are not wanted for the purpose of giving lig'ht. This charge is contained in the 5th and 6th Articles, which are as follows : — " Fifth. That the said Alexander Heriot Mackonochie has in his said church, and within two years last past, to wit, on Sunday, the 23rd day of December, on Christmas Day last past, on Sunday, the 30th day of December, all in the year of our Lord 1866, and on Sunday, the 13th day of January, in the year of our Lord 1867, used lighted candles on the Communion-table during the celebration of the Holy Communion, at times when such lighted candles were not wanted for the purpose of giving light, and permitted and sanctioned such use of lighted candles. " Sixth. That the use of such lighted candles is an unlawful addition to and variation from the form and order prescribed and appointed by the said statutes, and by the said Book of Common Prayer and Administration of the Sacraments, and other rites and ceremonies of the Church, and is contrary to the said statutes and to the 14th, 36th, and 38th of the said constitutions and canons." The responsive plea of Mr. Mackonochie, on this head, is as follows : — " Fifth. Whereas it is pleaded in the fifth Article that the said Alexander Heriot Mackonochie has, in his said church, and within two years last past, to wit, on Sunday, the 23rd day of December, on Christmas Day last past, and on Sunday, the 30th day of December, all in the year of our Lord 1866, and on Sunday, the 13th of January, in the year of our Lord 1867, used lighted candles on the Communion-table during the celebration of the Holy Communion, at times when such lighted candles were not wanted for the purpose of giving light, and permitted and sanctioned such use of lighted candles. Now the same is in part untruly pleaded, for the party proponent alleges that on the said three Sundays and Christmas Day, in the said fifth Article mentioned, the said lighted candles were not placed on the Communion-table, but on a narrow movable ledge of wood resting on the said Table, and that the said candles were so placed and kept lighted, not during the celebration of the Holy Communion only, as falsely suggested in the said fifth Article, but also during the whole of the reading of the Communion Service, including the Epistle and Gospel, and during the singing after the reading of the Nicene Creed, and during the delivery of the sermon. [ 3 60 ] Judgment in the Case of [App. B. " Sixth. "That be denies tbat the use of such lighted candles is an unlawful addition to and variation from the form and order prescribed and appointed by the said statutes, and by the said Book of Common Prayer and Administration of the Sacramentf, and other rites and ceremonies of the Church, and is contrary to the said statutes, and to the 14th, 3Gth, and 38th of the said constitutions and canons as in the said sixtb Article alleged." The facts, therefore, on this part of the case, appear to be that the respondent uses two lighted candles during, with reference to, and as an accompaniment of, the Communion Service, and not for the ordinary purpose of giving light, and that these candles are placed on a ledge of wood which is placed on the Communion- table. The Dean of the Arches seems to have considered that all the practices complained of before him, including this use of lighted candles, were ceremonies. The respondent, in the argument of his counsel at the Bar, appeared to prefer to treat the question as one of ornament, and Mr. James said he considered the lighted candles " part of the symbolical decoration of the altar." If it were necessary to decide which of these views is correct, their Lordships would feel disposed to agree with the Dean of the Arches, that however candles and candlesticks may^r se be looked upon as a part of the furniture or ornaments of the church, taking the word ornaments in the larger sense assigned to it by this Com- mittee in Westerton v. Liddell (Moore, p. 156), yet the lighting of the candles, and the consuming them by burning throughout, and with reference to a service in which they are to act as symhols and illustrations, is itself either a ceremony, or else a ceremonial act forming part of a ceremony, and making the whole ceremony a different one from what it would have been had the lights been omitted. The Council of Trent (22nd Session, 5th chapter), De Missse Ceremoniis et Ritibus, says, " Ceremonias item adhibuit ut mysticas benedictiones, lumina, thymiamata, vestes aliaque multa." Dr. Donne, also, in his Sermons (p. 80, fol. ed. 1640), writing in support of the use of these lights, calls it a ceremony. He says, " It is in this ceremony of lights as it is in other ceremonies. Arr. B.] Martin v. Machonochie. [ 161 ] There is a clear and obvious distinction between the presence in the Church of things inert and unused, and the active use of the same things as a part of the administration of a sacrament or of a ceremony. Incense, water, a banner, a torch, a candle and candle- stick may be parts of the furniture or ornaments of a church ; but the censing of persons and things, or, as was said by the Dean of Arches, the bringing in incense at the beginning or during the celebration, and removing it at the close of the celebration of the Eucharist, the symbolical use of water in baptism, or its ceremonial mixing with the sacramental wine ; the waving or carrying the banner ; the lighting, cremation, and symbolical use of the torch or candle,' — these acts give a life and meaning to what is otherwise inexpressive, and the act must be justified, if at all, as part of a ceremonial law. If the use of lighted candles in the manner complained of be a ceremony or ceremonial act, it might be sufficient to say that it is not — nor is any ceremony in which it forms a part — among those retained in the Prayer Book, and it must therefore be included among those that are abolished ; for the Prayer Book, in the pre- face, divides all ceremonies into these two classes : those which are retained are specified, whereas none are abolished specifically or by name ; but it is assumed that all are abolished which are not expressly retained. Passing, however, from this, the use of lighted candles, if a cere- monial act or part of a ceremony, would be prohibited by Queen Elizabeth's Act of Uniformity, sec. 4, which is now applicable to the present Prayer Book, and which makes it penal to use any other rite, ceremony, order, form, or manner of celebrating the Lord's Supper * * * than is mentioned and set forth in the said Book : and any prior authority for the practice, from usage or otherwise, would be avoided by sec. 27, which enacts that " all laws, statutes, and ordinances, whereby any other service, administration of sacraments, or Common Prayer, is limited, established, or. set forth to be used within this realm, shall from henceforth be utterly void and of none effect." As to the argument that the use complained of is at most only L [162] Judgment in the Case of [App. B. part of a ceremony, their Lordships are of opinion that when a part of a ceremony is changed, the integrity of the ceremony is broken, and it ceases to he the same ceremony. The learned Judge of the Arches Court was of opinion that these lights were ordered hy injunctions having statutable authority, which injunctions had not been directly repealed ; that they were primitive and Catholic in their origin, Evangelical in their proper symbolism, purged from all superstition and novelty by the very terms of the injunction which ordered their retention in the church, aud that, therefore, it was lawful to place them on the Holy Table during the time of the Holy Communion, " for the signification that Christ is the very true light of the world." The authorities cited show beyond all doubt the very ancient and general use in the Church of these symbolical lights ; and the in- junction to which the learned Judge refers, is the third of those issued, a.d. 1547, in the first year of the reign of King Edward VI. By this it was ordered that images should be taken down and destroyed, and that spiritual persons should suffer no torches or candles to be set afore any image or picture, but only two lights upon the high altar, before the Sacrament, which, for the signifi- cation that Christ is the very true light of the world, they should suffer to remain. It would deserve consideration how far under any circumstances this injuuction could now be held operative, having regard to the words " upon the high altar, before the Sacrament," and to the distinction pointed out by this Committee in "Westerton v. Liddell (Moore, 176 — 181), and Parker v. Leach (2 Moore, N. S., 199) between the sacrificial altar and the Communion-table. But with- out dwelling on this, and without stopping at this place to inquire into the nature of the authority under which the injunctions of 1547 were issued, their Lordships are clearly of opinion that the injunction in question, so far as it could be taken to authorize the use of lights as a ceremony or ceremonial act, was abrogated or repealed by the Act 1 Eliz., cap. 2, particularly by section 27 already mentioned, and by the present Prayer Book and Act of Uniformity, and that the use of lighted candles, viewed as a Arp. B.] Martin v. Mackonochie. [163] ceremony or ceremonial act, can derive no warrant from that injunction. Reference was made in the argument for the respondent to a constitution of the Council of Oxford, under Walter, Archbishop of Canterbury, a.d. 1322. That constitution is in these words : — " Tempore quo missarum solennia peraguntur, accendentur duae candelae, vel ad minus una ;" and is apparently a repetition of the earlier constitution of a.d. 1222 (Wilkins' Concilia, vol i., p. 595) : — "Tempore quo missarum solennia peraguntur, accendentur duae candela}, vel ad minus una cum lampade." As to these consti- tutions it is sufficient to say that, in their Lordships' opinion, they must be taken, if of force at the time of passing of any of the Acts of Uniformity, to have been repealed by those Acts. It remains to be considered whether the use of these two lighted candles can be justified as a question of "ornaments'" according to the definition of that term already referred to. It was in this sense that the' argument for the respondent appeared to prefer to regard them ; and the learned Judge of the Arches Court also, although, at the earlier part of his Judgment, he had stated that the matters complained of before him must be considered as "ceremonies," appears ultimately to have applied to the use of the lighted candles the law or rubric as to ornaments. The rubric or note as to ornaments, in the commencement! of the Prayer Book, is in these words : — " And here it is to be noted that such ornaments of the church, and of the Ministers thereof, at all times of their ministration, shall be retained and be in use as were in this Church of England, by the authority of Parliament, in the second year of the reig'n of King Edward the Vlth." The construction of this rubric was very fully considered by this Committee in the case of Westerton v. Liddell already referred to ; and the propositions which their Lordships understand to have been established by the Judgment in that case may thus be stated. 1. The words "authority of Parliament " in the rubric, refer to and mean the Act of Parliament 2 & 3 Ed. VI., cap. 1, giving Parliamentary effect to the First Prayer Book of Edward VI., and [164] Judgment in the Case of [App. B. do not refer to or mean Canons or Royal injunctions, having 1 the authority of Parliament made at an earlier period. — Moore, p. 160. 2. The term " ornaments " in the rubric means those articles, the use of which, in the services and ministrations of the Church, is prescribed by that Prayer Book. — Ibid., p. 156. 3. The term " ornaments " is confined to these articles. — Ibid., p. 156. 4. Though there may be articles not expressly mentioned in the rubric, the use of which woidd not be restrained, they must be articles which are consistent with, and subsidiary to, the services : as an organ for the singing, a credence-table from which to take the sacramental bread and wine, cushions, hassocks, &c. — Ibid., p. 187. In these conclusions, and in this construction of the rubric, their Lordships entirely concur, and they go far, in their Lordships' opinion, to decide this part of the case. The lighted candles are clearly not " ornaments " within the words of the rubric, for they are not prescribed by the authoiity of Parliament therein mentioned, namely, the First Prayer Book ; nor is the injunction of 1547 the authority of Parliament within the meaning of the rubric. They are not subsidiary to the service, for they do not aid or facilitate — much less are they necessary to — the service ; nor can a separate and independent ornament, previously in use, be said to be consistent with a rubric which is silent as to it, and which by necessary implication abolishes what it does not retain. It was strongly pressed by the respondent's counsel that the use of lighted candles up to the time of the issue of the First Prayer Book was clearly legal ; that the lighted candles were in use in the Church in the second year of Edward the Vlth ; and that there was nothing in the Prayer Book of that year making it unlawful to continue them. All this may be conceded, but it is in reality beside the question. The rubric of our Prayer Book might have said, those ornaments shall be retained which were lawful, or which were in use, in the second year of Edward the Vlth, and the argument as to actual use at the time, and as to the weight of the App. B.] Martin v. MacJconochie. ' 165 ] injunction of 1547, might in that case have been material. But the rubric, speaking- in 1G61, more than 100 years subsequently, has, for reasons which it is not tbe province of a judicial tribunal to criticize, defined the class of ornaments to be retained by a reference, not to what was in use de facto, or to what was lawful in 1549, but to what was in the Church by authority of Parlia- ment in that year ; and in the Parliamentary authority which this Committee has held, and which their Lordships hold, to be indicated by these words, the ornaments in question are not found to be in- cluded. Their Lordships have not referred to the usage as to lights during the last 300 years ; but they are of opinion that the very general disuse of lights after the Reformation (whatever exceptional cases to the contrary might be produced), contrasted with their normal and prescribed use previously, affords a very strong con- temporaneous and continuous exposition of the law upon the subject. Their Lordships will, therefore, humbly advise Her Majesty that the charge as to lights also has been sustained, and that the respondent should be admonished for the future to abstain from the use of them, as pleaded in these Articles. All the charges against the respondent having been thus esta- blished, their Lordships see no reason why the usual consequence as to costs should not follow ; and they will advise Her Majesty that the respondent should pay to the appellant the costs in the Court below, and of this Appeal. THE END. LONDON : GILBERT AND RIVINGTON, PRINTERS, ST. JOHN'S SQUARE. BY THE SAME AUTHOR. THE KINGDOM NOT OF THIS WORLD : Some Remarks on Passages touching Church Government in the late Charge of the Bishop of St. David's (1866). A Letter to the Rev. Canon Seymour, M.A. London : Rivingtons. 1867. ENGLAND'S SACRED SYNODS : a Constitutional History of the Convocations of the Clergy, from the earliest records of Christianity in Britain to the date of the promulgation of the present Book of Common Prayer. With a list of all Councils held in England. London : Rivingtons. 1855. THE DUTY OF THE CIVIL POWER to Promote the Faith of the National Church : an Assize Sermon, preached at Shrewsbury, March 23, 1857. London: Rivingtons. Shrewshury: Sandford. Ludlow : Partridge. 1857. THE NATIONAL CHURCH : an Answer to an Essay on " The National Church " in " Essays and Reviews." London : Saunders, Otley, & Co. 1861. ECCLESIA VINDICATA : a Treatise on Appeals in Matters Spiritual. 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