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A Second Letter to the Bishop of Exeter

A Second Letter to the Bishop of Exeter
Title: A Second Letter to the Bishop of Exeter
Release Date: 2018-10-15
Type book: Text
Copyright Status: Public domain in the USA.
Date added: 27 March 2019
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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]

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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 p. 4Bishop, he hadheard the Clerk and decided wrongly against him.  This rightthe injured Clerk pursued by the process called the DuplexQuerela, a process there is some reason to believe peculiar tothe province of Canterbury, and arising from the legatinejurisdiction of that See,—as it is well known that theArchbishops of Canterbury anciently claimed to be legati nati ofthe Pope. [4]  But whether this be so or not, itis clear that either on this ground or as metropolitans, theyhave always exercised this jurisdiction within theirprovince.  I cannot find any instance of the Archbishop ofYork doing this, which inclines me to this hypothesis of thelegatine jurisdiction.  If this be the nature of the DuplexQuerela it is manifest that it consists really of two partswholly separate and distinct from each other; one, a suit in theArchbishop’s Court for the purpose of determining whetherthe Archbishop has in the particular case, this jurisdiction: andthis depends on the question whether the Bishop has committed anerror;—and secondly, a claim by the Clerk that if theArchbishop has jurisdiction he shall act or proceed to institutethe Clerk as upon a presentation made to himself in his owndiocese.

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 p. 6officiallybefore the Privy Council at all, and consequently they do notjudicially know of its existence.  The meaning of thejudgment must therefore be, that if presented (and why not if fitalso?) he be instituted.  And what does the Archbishop inhis court proceed to do upon this?  The first process is tosummon the Bishop to bring in the presentation, which being THEN and not till then, before theArchbishop, he proceeds to exercise his discretion, as toinstitution, regularly.  Now if this be not exercised byexamination of the Clerk, these absurdities would follow. 1st, No provision would be made for heresy or crime committedbetween the examination by the Bishop and the institution bythe Archbishop, and yet this interval may be one of manymonths or years.  It would be obviously absurd to instituteupon an antecedent supposed fitness, instead of a fitnessproperly ascertained at the time of institution.  Thesolemn words of institution, accipe curam meam et tuam, wouldforbid such a conclusion.  Besides, if the sufficiency ofthe examination before the Bishop is to be the sole criterion, inwhat way is an examination merely frivolous, one whichneither shows affirmatively nor negatives heresy or unfitness tobe dealt with?  Such an examination would be indeed aperfectly sufficient warrant for the exercise of theArchbishop’s jurisdiction, but would be manifestlyinsufficient for his institution of the Clerk.  Indeed itmight even open a door to fraud.  For a Bishop knowing a manpresented p. 7tohim was a heretic or ignorant person, and being desirous tofavour him, though not willing himself to take the odium ofinstitution, might reject him on some frivolous or insufficientpretence, and so deprive the Archbishop of all discretion in thematter, and throw on him the disgrace of instituting a manifestlyinsufficient clerk.

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 p. 9Council order the Archbishop toproceed; but they do not direct him to institute Mr. Gorham.

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 p. 10thereby denyall Supremacy, whether spiritual, ecclesiastical, or temporal, toany external power.  In this all true members of the Churchof England agree without any restriction whatever.  Iregret, however, to be obliged to add that some of our soi-disantmembers seem disposed (as extremes are always found to meet) toattribute an absolute Supremacy to the Crown—as absolute infact as that claimed by the Bishop of Rome over hissubjects—and if established, as fatally leading to thecorruption of our beloved Church, as it has already done to thecorruption of the Church of Rome.  If any one person is toexercise absolute power in the Church of Christ, it matters not much whether it bethe King or the Pope.  Indeed, if antiquity is to decide it,the latter would have the better claim.  But both arecontrary, as I believe, to primitive antiquity.  Let usproceed then to examine in detail the true executive andlegislative Supremacy of the Crown in this country.

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 p. 11Pope’s power in England),“to decline or vary from the congregation of Christ’s Church in any thingsconcerning the very Articles of the Catholic Faith

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