Transcribed from the 1851 Joseph Masters edition by David Price, email
ccx074@pglaf.org

                   [Picture: Public domain book cover]





                             A SECOND LETTER
                                    TO
                          THE BISHOP OF EXETER.


                                * * * * *

                               BY A LAYMAN

                                * * * * *

                      FOR PRIVATE CIRCULATION ONLY.

                                * * * * *

                                 LONDON:
                        PRINTED FOR THE AUTHOR BY
                    JOSEPH MASTERS, ALDERSGATE STREET.
                                 MDCCCLI.

                                * * * * *




A LETTER.


MY DEAR LORD,

I TRUST I can now satisfy you that we have both been labouring under a
great mistake for some time, and that after all no ecclesiastical rule
can properly be said to have been violated by the judgment of the Privy
Council in the Gorham Case, but that it is quite right that the Crown
should have the jurisdiction in such a case which they have actually
exercised.

The question then is this, What is the real nature of the suit called
Duplex Querela?  For a suit it is no doubt, (though I had at one time
thought otherwise) and one too in the Archbishop’s Court.  You will find
from our older authorities that the Archbishops of Canterbury in former
times used to claim the right of interfering in their comprovincial
dioceses per simplicem querelam, i.e. as I believe, of acting, so to
speak, in all cases as joint ordinary with each Bishop throughout their
province.  This claim of jurisdiction is specially mentioned and
discussed in Gibson’s Codex.  This right, however, was disputed and given
up, and the jurisdiction was ultimately confined to those cases alone in
which, after an application to the Comprovincial Bishop, he had heard the
Clerk and decided wrongly against him.  This right the injured Clerk
pursued by the process called the Duplex Querela, a process there is some
reason to believe peculiar to the province of Canterbury, and arising
from the legatine jurisdiction of that See,—as it is well known that the
Archbishops of Canterbury anciently claimed to be legati nati of the
Pope. {4}  But whether this be so or not, it is clear that either on this
ground or as metropolitans, they have always exercised this jurisdiction
within their province.  I cannot find any instance of the Archbishop of
York doing this, which inclines me to this hypothesis of the legatine
jurisdiction.  If this be the nature of the Duplex Querela it is manifest
that it consists really of two parts wholly separate and distinct from
each other; one, a suit in the Archbishop’s Court for the purpose of
determining whether the Archbishop has in the particular case, this
jurisdiction: and this depends on the question whether the Bishop has
committed an error;—and secondly, a claim by the Clerk that if the
Archbishop has jurisdiction he shall act or proceed to institute the
Clerk as upon a presentation made to himself in his own diocese.

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 then appeals to the Crown to prevent the
Archbishop from improperly infringing on his Diocesan rights, and if the
Crown, upon argument before the Delegates or Privy Council, think the
Bishop right they will by their judgment overrule the Archbishop and
prohibit him thereby from proceeding.  On the contrary, if they think the
Bishop wrong, they will leave the Archbishop to proceed to the second
branch, the consequence of his decision, and will direct him to act at
his discretion in instituting the Clerk, if on examination he finds him
fit.

Or suppose the Archbishop, agreeing with the Bishop, has dismissed the
Clerk’s suit in his Court.  The Clerk then appeals to the Crown, and the
Privy Council hear it.  If they think the Bishop originally wrong in his
refusal, and therefore that the Archbishop ought to have acted on his
jurisdiction, they order him to proceed so to do, and he then proceeds,
as in duty bound, to act as he would have done if the living were in the
Diocese of Canterbury.

The Privy Council do not order the Archbishop to institute as a mere
ministerial act; they have no jurisdiction to do that, but they have a
jurisdiction to compel him to exercise his Archiepiscopal discretion in
that case.

Now the very nature and course of the proceedings shows that this is so.
The judgment is, that “_the suit be remitted to the Archbishop that right
may be done_.”  This cannot mean an order to institute _at all events_.
The presentation itself is not officially before the Privy Council at
all, and consequently they do not judicially know of its existence.  The
meaning of the judgment must therefore be, that if presented (and why not
if fit also?) he be instituted.  And what does the Archbishop in his
court proceed to do upon this?  The first process is to summon the Bishop
to bring in the presentation, which being THEN and not till then, before
the Archbishop, he proceeds to exercise his discretion, as to
institution, regularly.  Now if this be not exercised by examination of
the Clerk, these absurdities would follow.  1st, No provision would be
made for heresy or crime committed _between the examination by the Bishop
and the institution by the Archbishop_, and yet this interval may be one
of many months or years.  It would be obviously absurd to institute upon
an _antecedent_ supposed fitness, instead of a fitness properly
ascertained _at the time of institution_.  The solemn words of
institution, accipe curam meam et tuam, would forbid such a conclusion.
Besides, if the sufficiency of the examination before the Bishop is to be
the sole criterion, in what way is an examination _merely frivolous_,
_one which neither shows affirmatively nor negatives heresy or unfitness
to be dealt with_?  Such an examination would be indeed a perfectly
sufficient warrant for the exercise of the Archbishop’s jurisdiction, but
would be manifestly insufficient for his institution of the Clerk.
Indeed it might even open a door to fraud.  For a Bishop knowing a man
presented to him was a heretic or ignorant person, and being desirous to
favour him, though not willing himself to take the odium of institution,
might reject him on some frivolous or insufficient pretence, and so
deprive the Archbishop of all discretion in the matter, and throw on him
the disgrace of instituting a manifestly insufficient clerk.

Again, another absurdity follows, if the law be not as above suggested.
There is no authority for saying, that where the Archbishop on a
presentation really to himself rejects the clerk, the latter has any
remedy by duplex querela at all.  It seems probable, therefore, that here
the Archbishop’s decision is final; but, if the judgment of the Privy
Council, be a judgment ordering institution, it would follow that though
the judgment of the Archbishop alone was final, his judgment when
confirming that of the Bishop was not so.  But, on the other hand, if the
judgment of the Privy Council really be only that the Archbishop shall
exercise his jurisdiction, the two cases become parts of one uniform and
harmonious system.  It is some confirmation of these views also, that in
the case of a Quare Impedit, when the fitness of a clerk is alone the
question before the court of law, which it sometimes is, it is pretty
clearly laid down that the fitness in issue before the court, is not the
fitness at the time of the refusal by the Bishop, but the fitness at the
time of the certificate of the Archbishop.  It is this which is to decide
the case.  And this only takes place _if the clerk be living_, which
circumstance clearly points to the conclusion that the Archbishop is to
examine him personally and de novo, that he may be enabled to make that
certificate.

I therefore, for all these reasons have come to the conclusion that after
all the only effect of the judgment of the Privy Council was to send Mr.
Gorham before the Archbishop of Canterbury, in order that he might judge,
after examining him at his discretion, whether he, the Archbishop,
thought him a fit person to be instituted to the living of Brampford
Speke, and in that event only to institute him as on a presentation to
himself.  Now, if this be so, what ecclesiastical rule is violated by
this proceeding?  Ought not the Crown, as governing all estates of men,
ecclesiastical or civil, within the realm, to decide on the one hand
whether an Archbishop infringes the Diocesan rights of a Bishop, or on
the other hand whether he refuses to give redress to a Clerk unjustly
oppressed by the Bishop?  Ought not the Crown to prohibit the Archbishop
from proceeding 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 he exercises
this jurisdiction?

Thus, if the Chancellor dismisses a bill, and on appeal the House of
Lords differ from him, they order him to proceed, but they do not direct
him to decide in favour of the plaintiff.  Here the Privy Council order
the Archbishop to proceed; but they do not direct him to institute Mr.
Gorham.

This is my view of the case.  If I am right, however, I may as well add,
that the most improper person to have been present at the argument was
His Grace of Canterbury, either as assessor or judge.  For it was his
duty to take no part till the question of his jurisdiction was first
settled.

Before I conclude this letter, I will add a few words on the Royal
Supremacy, a subject much talked of in these days, and often as it seems
to me by persons who do not well understand its real import.  Properly
understood, there is nothing in it which need give any alarm to the most
sensitive Churchman.

The King is with us the Supreme Head of the Church.  But in what
sense,—and what are the limits of this his Supremacy?  He is Supreme Head
of the State also—and the Oath of Supremacy puts both on the same
footing.

Now to understand this properly, it will be well to divide this Supremacy
both in Church and State into its two main branches—executive and
legislative.  Unless we do this, we shall fall into much error.

But before we discuss this question, let me call your attention to the
important negative words of the Article and Oath of Supremacy, which in
fact were the main reasons for framing it, and constitute its most
important provision.  We thereby deny all Supremacy, whether spiritual,
ecclesiastical, or temporal, to any external power.  In this all true
members of the Church of England agree without any restriction whatever.
I regret, however, to be obliged to add that some of our soi-disant
members seem disposed (as extremes are always found to meet) to attribute
an absolute Supremacy to the Crown—as absolute in fact as that claimed by
the Bishop of Rome over his subjects—and if established, as fatally
leading to the corruption of our beloved Church, as it has already done
to the corruption of the Church of Rome.  If any one person is to
exercise absolute power in the Church of CHRIST, it matters not much
whether it be the King or the Pope.  Indeed, if antiquity is to decide
it, the latter would have the better claim.  But both are contrary, as I
believe, to primitive antiquity.  Let us proceed then to examine in
detail the true executive and legislative Supremacy of the Crown in this
country.

The executive supremacy of the king over the Church gives him full power,
as our Article expresses it, of “restraining with the civil sword all
wrong doers,” but no power of interfering in the ministrations of the
Church.  It is well put thus by the 25th of Henry VIII., c. 21, s. 19:
“Provided always, That this Act, nor any thing or things therein
contained, shall be hereafter interpreted or expounded, that your Grace,
your nobles and subjects, intend by the same” (i.e., by denying the
Pope’s power in England), “to decline or vary from the congregation of
CHRIST’S Church in any things concerning the very Articles of the
Catholic Faith of Christendom, or in any other things declared by Holy
Scripture and the Word of GOD, necessary for your and their salvations,
but only to make an ordinance by policies necessary and convenient to
repress vice, and for good conservation of this realm in peace, unity,
and tranquillity, from ravin and spoil, insuing much the old ancient
customs of this realm in that behalf; not minding to seek for any relief,
succours, or remedies, for any worldly things and human laws, in any
cause of necessity, but within this realm at the hands of your highness,
your heirs and successors, kings of this realm, which have and ought to
have an imperial power and authority in the same, and not obliged in any
worldly causes to any other superior.”  These are plain and true words.
No doubt King Henry and his successors claimed and exercised the complete
executive power and judicial superintendence of the Church: in fact, all
executive power, with one exception, mentioned in the Article on the
supremacy, and which in a lively manner shows the limits.  The ministry
of GOD’S Word and the Sacraments is a part of the executive duties of the
Church.  These the Article expressly excepts, showing that even in
executive matters the king does not interfere where they are purely
spiritual.

He claims to appoint the Bishops; but this is, I conceive, according to
the truth of the law, subject to examination as to fitness in some
specific points and confirmation by the Church in the Archbishop’s Court.
If the Archbishop or the guardian of the spiritualities refused this
confirmation, or refused to consecrate, or do any other ecclesiastical
act, wilfully and unjustly toward the Bishop elect or towards any other
persons entitled to have these ecclesiastical acts performed, the king,
through his chancellor, was by a commission of delegates to examine
judicially into the question of right, and if after deciding the question
against the Archbishop and enjoining him to do the act, that prelate
still refused to obey, the king punished him for his disobedience, but
did not himself proceed to do the act.  He then deputed the power of
doing it to two other spiritual prelates, to be specially named for the
purpose.  This jurisdiction is even now occasionally exercised when upon
the accidental incapacity of the Archbishop a commission is granted by
the Crown to Bishops to consecrate a Bishop elect here, or as it may be
now, in the colonies.  For the act being spiritual, seems to have been
thought ultra vires of the king himself.  So little did the king ever
dream of exercising personally or by lay judges what some ill-informed
people have since ascribed to him, pontifical or spiritual power.

The executive ecclesiastical power, however, he did claim and did
exercise.  But this also he did only in the same way as he proceeds in
civil matters.  He acted not personally, but by deputed judges.  He
determines ecclesiastical matters by ecclesiastical judges, as he does
civil matters by civil judges.  In both it is done by the law, a rule by
which the king as well as the Church is bound.  If it be a case of
heresy, these judges are to ascertain what the law of the Church calls
heresy and how it is to be punished.  If they find the law, they apply it
to the facts.  But they do not make or pretend to alter the law: they
have no power to do this.  If they made as well as administered it, no
man would be safe for a moment.  To live subject to that would be to live
under a pure despotism.

The only ground of complaint here is, if any, that unskilful and
unlearned judges may be appointed.  That is, if well founded, to be cured
by appointing better.  If laymen, from their course of reading and study
or for any other reason, are unfit to be judges, then ecclesiastics
should be selected for this purpose, as in former times they were, there
being many instances in the books of Bishops sitting as delegates on
ecclesiastical appeals.  But the theory of the law is right, as it
stands, as to the executive supremacy of the king.

Next we come to his legislative supremacy, which is not expressly touched
at all by the oath of supremacy or the article on that subject.  But it
is understood no doubt in both.  Here the supremacy is simply of order
and rank, with one exception only (common to both civil and
ecclesiastical supremacy), the power of the initiative as well as the
veto.  No law can be discussed in convocation at all without the
initiative of the Crown first granted.  This prerogative exists, but is
not universal, in civil matters.  In them it is confined to particular
subjects when brought before the parliament.  The difference however is
one of degree and not of principle.  Subject to this exception the king
has the very same and no greater power in convocation than in parliament.
He has no power of making or changing laws in either, but he has the
power in both of preventing by his veto any change from being made.  By
his coronation oath he binds himself expressly to observe this and all
other privileges of the Church faithfully, and it would be a clear breach
of that oath to assent in parliament to a law altering the doctrines or
ritual of the Church, unless such alteration had been previously
submitted to convocation for their assent, or the law itself made
expressly subject to their subsequent approbation.  Both parliament and
convocation must unite as they did when the Act of Uniformity was passed,
to make according to our constitution in Church and State such a law.

It is probable indeed that the discipline of the Church also falls within
the same rule, and it may be well doubted, whether in propriety the Crown
or the Bishops should ever assent to such bills unless subject to the
same assent of Convocation, and in the late somewhat arbitrary powers
given to the Bishops over Curates, it is at least clear that it would
have been but just if such powers had in some way been submitted to the
judgment of the inferior Clergy in their lower House of Convocation,
before they passed into a law.  No doubt Parliament is unlimited in its
power of legislation, _but the true_, _and I trust real_, _security that
in cases like these_, _it shall be obliged to proceed constitutionally_,
_is the Coronation Oath of the King_, _which binds in these cases his
conscience as to the exercise of his parliamentary veto_.

Here then is the real legislative Supremacy of the King over the
Church—as unobjectionable in reality, if exercised faithfully, as any law
can be.

But there is an evil no doubt—and the real evil is this.  The legislative
power of the Church since Bishop Hoadley’s days has fallen into complete
abeyance.  I do not stop to inquire whether there were not then good
reasons for suspending it.  Probably there were.  But it is a necessary
branch of our constitution, and the Crown ought to be advised
occasionally to suffer the Convocation to deliberate on Church matters.
There is no fear of abuse so long as the Crown retains the initiative as
to all the subjects of debate.  But no system of law can well stand which
is not accompanied by a power of amending from time to time those errors
to which all human institutions are liable, and which from changes of
manners and habits become in time more and more apparent.  A qualified
employment of the Church Legislature is essential to the healthy action
of the English Church.  Let me take the Gorham controversy as an
instance.  There was a decision of five Judges and two Archbishops, with
one Judge and the Bishop of London dissenting, which overruled the
opinion of the Bishop of Exeter, the diocesan, and that of the Judge of
the Arches, Sir Herbert Jenner Fust.  Surely that was a case in which the
expressions of the written law were so doubtful, that a declaratory Act
of Convocation to avoid such doubts in future, was, to say the least of
it, very desirable.  Again, with respect to discipline.  Would it not be
reasonable and decent at this moment for the Crown to ask the advice of
the whole body of the Clergy as to the proper limits of Episcopal power
over themselves, and the best mode of enforcing discipline and faithful
obedience to the ritual of the Church?  Would not this be far better, to
say the least of it, than the late somewhat irregular proceeding of the
majority of the Bishops in giving opinions without any jurisdiction to
enforce them, and offering advice which every one is at liberty to follow
or reject at his pleasure?  And why might not her Majesty have been
advised instead of sending a letter respecting Lord Ashley’s monster
petition to the Archbishop of Canterbury, to have referred that petition
in a constitutional manner to Convocation, whose decision would have been
of real value, inasmuch as it would have bound the Clergy by laying down
a proper rule for their obedience?  And how would Parliament be the worse
for a little information on such subjects from those best acquainted with
their details?  The absence of this proper action of the Church renders
indeed the presence of the Bishops in the Upper House, which impedes
their usefulness as residents within their respective dioceses,
imperatively necessary; and I will add, that until this is altered, the
presence of the inferior Clergy in the Lower House ought not to have been
prohibited, as it was within our own recollection.  Perhaps however it
would be better for both if they confined themselves to a healthy action
in Convocation, and if both Houses consisted of laymen alone, and as a
substitute for Ecclesiastical Peers or Members adopted as a standing
order that no laws, relating to the doctrine, ritual, or discipline of
the Church directly, should be passed until after or subject to the
approval of Convocation.  In this way both Bishops and Clergy would give
to Cæsar, by abstaining from political questions altogether, the things
of Cæsar, and to GOD, by retaining in spiritual matters the complete
power of preventing all improper alterations in the Church—the things of
GOD.  On the other hand, the Parliament would not abdicate its supreme
functions of legislation.

The laity, for it is the laity whom the Parliament (the King, Lords, and
Commons) represents, have I apprehend right to prevent any changes in the
established laws of Church in all matters whether of doctrine,
discipline, or ritual—and the sole right of enforcing, _by the civil
power_, all the injunctions of the Church.

Even the right of assenting to the calling Councils of the Church—and of
allowing their decrees was not taken from the lay members of the Church,
and was exercised by the supreme head of the state in their name.  In
this country it is exercised as to executive matters by the King, as to
legislative matters by the King, Lords, and Commons in Parliament.  Long
may it continue to be so exercised.  The confusion of these two separate
powers of Church and State in the Papacy has been, I believe, the main
cause of its unhappy corruptions.  But this is too wide a field to enter
upon, and requires a longer letter, and an abler correspondent.

                               Believe me,

                                                             My dear LORD,
                                                         Faithfully yours,
                                                                 A LAYMAN.

                                * * * * *

                                * * * * *

          PRINTED BY JOSEPH MASTERS, ALDERSGATE STREET, LONDON.




FOOTNOTES.


{4}  This probably explains the saving of the jurisdiction of the Church
of Canterbury in the 25th Henry VIII.