A Second Letter to the Bishop of Exeter
The Project Gutenberg eBook, A Second Letter to the Bishop of Exeter, byEdward Hall AldersonThis eBook is for the use of anyone anywhere in the United States and mostother parts of the world at no cost and with almost no restrictions whatsoever. You may copy it, give it away or re-use it under the terms ofthe Project Gutenberg License included with this eBook or online at www.gutenberg.org. If you are not located in the United States, you'll haveto check the laws of the country where you are located before using this ebook.Title: A Second Letter to the Bishop of ExeterAuthor: Edward Hall AldersonRelease Date: October 15, 2018 [eBook #58106]Language: EnglishCharacter set encoding: ISO-646-US (US-ASCII)***START OF THE PROJECT GUTENBERG EBOOK A SECOND LETTER TO THE BISHOP OFEXETER***
Transcribed from the 1851 Joseph Masters edition by DavidPrice, email [email protected]
A SECOND LETTER
THE BISHOP OF EXETER.
BY A LAYMAN
FOR PRIVATECIRCULATION ONLY.
PRINTED FOR THE AUTHOR BY
JOSEPH MASTERS, ALDERSGATE STREET.
My Dear Lord,
I TRUST I can now satisfy youthat we have both been labouring under a great mistake for sometime, and that after all no ecclesiastical rule can properly besaid to have been violated by the judgment of the Privy Councilin the Gorham Case, but that it is quite right that the Crownshould have the jurisdiction in such a case which they haveactually exercised.
The question then is this, What is the real nature of the suitcalled Duplex Querela? For a suit it is no doubt, (though Ihad at one time thought otherwise) and one too in theArchbishop’s Court. You will find from our olderauthorities that the Archbishops of Canterbury in former timesused to claim the right of interfering in their comprovincialdioceses per simplicem querelam, i.e. as I believe, of acting, soto speak, in all cases as joint ordinary with each Bishopthroughout their province. This claim of jurisdiction isspecially mentioned and discussed in Gibson’s Codex. This right, however, was disputed and given up, and thejurisdiction was ultimately confined to those cases alone inwhich, after an application to the Comprovincial
Now the suit, and of course the Appeal to the Privy Council,is, properly speaking, confined to the first branch alone. If the Archbishop decides against the Bishop, the latter thenappeals to the p.5Crown to prevent the Archbishop from improperlyinfringing on his Diocesan rights, and if the Crown, uponargument before the Delegates or Privy Council, think the Bishopright they will by their judgment overrule the Archbishop andprohibit him thereby from proceeding. On the contrary, ifthey think the Bishop wrong, they will leave the Archbishop toproceed to the second branch, the consequence of his decision,and will direct him to act at his discretion in instituting theClerk, if on examination he finds him fit.
Or suppose the Archbishop, agreeing with the Bishop, hasdismissed the Clerk’s suit in his Court. The Clerkthen appeals to the Crown, and the Privy Council hear it. If they think the Bishop originally wrong in his refusal, andtherefore that the Archbishop ought to have acted on hisjurisdiction, they order him to proceed so to do, and he thenproceeds, as in duty bound, to act as he would have done if theliving were in the Diocese of Canterbury.
The Privy Council do not order the Archbishop to institute asa mere ministerial act; they have no jurisdiction to do that, butthey have a jurisdiction to compel him to exercise hisArchiepiscopal discretion in that case.
Now the very nature and course of the proceedings shows thatthis is so. The judgment is, that “the suit beremitted to the Archbishop that right may bedone.” This cannot mean an order to instituteat all events. The presentation itself is not
Again, another absurdity follows, if the law be not as abovesuggested. There is no authority for saying, that where theArchbishop on a presentation really to himself rejects the clerk,the latter has any remedy by duplex querela at all. Itseems probable, therefore, that here the Archbishop’sdecision is final; but, if the judgment of the Privy Council, bea judgment ordering institution, it would follow that though thejudgment of the Archbishop alone was final, his judgment whenconfirming that of the Bishop was not so. But, on the otherhand, if the judgment of the Privy Council really be only thatthe Archbishop shall exercise his jurisdiction, the two casesbecome parts of one uniform and harmonious system. It issome confirmation of these views also, that in the case of aQuare Impedit, when the fitness of a clerk is alone the questionbefore the court of law, which it sometimes is, it is prettyclearly laid down that the fitness in issue before the court, isnot the fitness at the time of the refusal by the Bishop, but thefitness at the time of the certificate of the Archbishop. It is this p.8which is to decide the case. And this only takesplace if the clerk be living, which circumstance clearlypoints to the conclusion that the Archbishop is to examine himpersonally and de novo, that he may be enabled to make thatcertificate.
I therefore, for all these reasons have come to the conclusionthat after all the only effect of the judgment of the PrivyCouncil was to send Mr. Gorham before the Archbishop ofCanterbury, in order that he might judge, after examining him athis discretion, whether he, the Archbishop, thought him a fitperson to be instituted to the living of Brampford Speke, and inthat event only to institute him as on a presentation tohimself. Now, if this be so, what ecclesiastical rule isviolated by this proceeding? Ought not the Crown, asgoverning all estates of men, ecclesiastical or civil, within therealm, to decide on the one hand whether an Archbishop infringesthe Diocesan rights of a Bishop, or on the other hand whether herefuses to give redress to a Clerk unjustly oppressed by theBishop? Ought not the Crown to prohibit the Archbishop fromproceeding in the one case, and to order him to act in the other;in the latter case however, not directing him what to do when heexercises this jurisdiction?
Thus, if the Chancellor dismisses a bill, and on appeal theHouse of Lords differ from him, they order him to proceed, butthey do not direct him to decide in favour of theplaintiff. Here the Privy
This is my view of the case. If I am right, however, Imay as well add, that the most improper person to have beenpresent at the argument was His Grace of Canterbury, either asassessor or judge. For it was his duty to take no part tillthe question of his jurisdiction was first settled.
Before I conclude this letter, I will add a few words on theRoyal Supremacy, a subject much talked of in these days, andoften as it seems to me by persons who do not well understand itsreal import. Properly understood, there is nothing in itwhich need give any alarm to the most sensitive Churchman.
The King is with us the Supreme Head of the Church. Butin what sense,—and what are the limits of this hisSupremacy? He is Supreme Head of the State also—andthe Oath of Supremacy puts both on the same footing.
Now to understand this properly, it will be well to dividethis Supremacy both in Church and State into its two mainbranches—executive and legislative. Unless we dothis, we shall fall into much error.
But before we discuss this question, let me call yourattention to the important negative words of the Article and Oathof Supremacy, which in fact were the main reasons for framing it,and constitute its most important provision. We
The executive supremacy of the king over the Church gives himfull power, as our Article expresses it, of “restrainingwith the civil sword all wrong doers,” but no power ofinterfering in the ministrations of the Church. It is wellput thus by the 25th of Henry VIII., c. 21, s. 19:“Provided always, That this Act, nor any thing or thingstherein contained, shall be hereafter interpreted or expounded,that your Grace, your nobles and subjects, intend by thesame” (i.e., by denying the