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bishops, without whose consent no resolution can be passed. But that canons of convocation, when confirmed by the crown, obtain only by virtue of the royal prerogative, and that convocation has and ought to have no authority therein, until I read your article, I had not met with a single writer who has ventured to affirm it. You appear, however, to think that, though “book authority" to support your assertion was not at hand at the moment” you wrote, there can be no doubt that it exists. As a month will elapse between your writing that article and your inserting this paper in the next Number, you will have. plenty of time to ascertain what book authority you can command in your behalf. And you will do, not me only, but the whole church, and the cause of truth and right, much service, if you will adduce on your side the utmost that you can; that we may have opportunity to compare the authorities, and ascertain to which the greatest deference is due. My firm belief and hope is that, upon farther investigation, you will find that you have been in error, and are not under the painful obligation (for I am sure to the Editor of the British Magazine it must be painful) of asserting for the crown an absolute and irresponsible authority over the church; the too probable consequences of which it is sickening and appalling to contemplate. Should proof fail you, think me not too bold in saying, that you owe it to the church to withdraw your assertion as openly as you have made it; and for this simple reason, that a doctrine put forth and persisted in by you, though it may be destitute of all other authority whatever, will not fail, in the estimation of many persons, to acquire some from the mere weight of your name alone.
In what you say about “ such a body as convocation," and in the contrast which you draw between it and provincial synods of bishops, to the depravation of the former, you seem to me to have fallen into the very course which I thought it had been your intention to avoid -namely, that of directing attention to how things in your opinion) ought to be, instead of confining yourself to things as they are. It is to * such a body as convocation” now is, that the royal declarations, resolutions of houses of parliament, acts of parliament, and opinions of judges, and decisions of courts of law, concur in ascribing authority (under the king's sanction) to make ecclesiastical law binding (at least) on the clergy. Nor can the present form of the ecclesiastical legislature be changed, except with the authority of that legislature, together with that of the crown, and of the houses of parliament. And I cannot but express my surprise that a form of ecclesiastical synod which has received the successive approbation of all the bishops and metropolitans, the clergy and laity of the church of England, of the crown, and of the civil legislature, for many hundred years, and (lest we in England might be deemed lax in ecclesiastical matters) of popes and cardinals before the Reformation, and during the reign of Queen Mary, should be deemed so very exceptionable by good and excellent men at the present day, that, sooner than have recourse to it, they seem inclined rather to put up with the new form of ecclesiastical legislature which the fertile brain of Lord Melbourne has hatched in the shape of an ecclesiastical commission. Iudeed, if you are right, it follows neces
sarily that even the appointment of that commission is an act of grace and favour, since (according to you) the crown, by its mere prerogative, without convocation, can order all things which it has been usual to submit to that body; and therefore, instead of finding fault with the present ministers, we ought to be down on our knees, and thank them for allowing five of our bishops to subscribe the resolutions of the seven laymen who form the majority of the board.
But if I understand you aright, (page 77,) you assert, that this absolute power in the crown over the church is both admitted and ex ercised. I deny both assertions. I deny that the power of the crown alone to set aside ecclesiastical law, or canons confirmed by the crown, has ever been admitted by any competent authority. I deny that it is exercised. I do not, of course, deny that the crown, with parliament, can tyrannize over the church, without even the form of an ecclesiastical commission; and such power, I believe, has been exercised more than once; but I deny that the king's sole prerogative extends to setting aside an ecclesiastical law passed by the representatives of the clergy, and confirmed by the crown. I do not mean that such a claim has not been advanced—the very proclamation for the state services, as they stand, is a proof of it but I mean that it cannot be enforced; and I suppose it is not the mere advancing, but the enforcing a claim of right, which constitutes an exercise of it. If upon reconsideration you still are of opinion that it can be enforced, please to say in what court. Not, I think, in that of King's Bench, at least not until the decisions of my Lord Coke, and Chief Justice Holt, and Hardwicke, have been reversed. For there it has been ruled, that “ The crown hath not the full legislative power ;' and that canons consented to by the crown become law, and bind the clergy, not by reason of the king's absolute prerogative, as you contend, but because the clergy are represented in the convocation when the canons are made. And I doubt whether, in the teeth of these repeated decisions of the superior courts, the ecclesiastical judge in the Court of Arches would dare, even if he wished it, to attempt to give the force of ecclesiastical law to a royal proclamation in any case, much less in one where that proclamation is in the teeth of ecclesiastical law, duly made and sanctioned.
Now to apply what has been said to the case of the special service for the fifth of November. Supposin hindrance to be afforded by the act of uniformity, (which I suppose for the sake of argument, not admitting it to be so; for indeed I feel very doubtful how the Court of King's Bench would decide, if the case came under its consideration; but supposing it) it is, I conceive, perfectly undeniable, that the rubrics in the commencement of the old special service, enjoining the use of that service, as prepared' in 1662, (passed by convocation, daly convened by the crown, and afterwards assented to by the crown,) are as much and as truly ecclesiastical law within this church and realm as any canon similarly passed and sanctioned since the Reformation. If so, the proclamation of William the Third, commanding the use of different sentences, psalms, collects, gospel, &c. from those enjoined by the law, was an attempt, on his part, to dispense with the laws of this church and realm ; whether knowingly and wittingly on his part,
VOL. XIII.—March, 1838.
I will not venture to decide, (his regard for episcopacy forming a marked feature in his character,) but, in all probability, unknowingly and unwittingly continued by his successors to the present day. The only ground on which, as it seems to me, it could be attempted in the ecclesiastical courts to enforce the new service is, custom. It might perhaps be said, that whatever might be the origin of the new service, its general reception has given the sanction of custom to it. But, in the first place, it does not readily appear how custom can be enforced above and aguinst ecclesiastical law; and secondly, it might reasonably be replied, that the general desuetude into which the service has fallen has rendered the custom obsolete. You refer us to Mr. Palmer's remarks, in the beginning of his second volume of Origines Liturgicæ. To this I will only say, that that learned writer's remarks do not touch the point in dispute between us, which is simply this namely, whether, according to the constitution of this church and nation, a royal proclamation has the force of ecclesiastical law, in the teeth of an ecclesiastical law already duly made and sanctioned, which the Court of King's Bench has ruled to be as binding as an act of parliament? I suppose the proceedings (in ecclesiastical causes) of the crown in England with parliament, of which Mr. Palmer treats, form no precedents for King William's proclamation without parliament; nor the acts of French emperors and Spanish kings any sanction for similar proceedings on the part of the constitutional monarchs of this country.
In respect to the new calendar provided by 24 Geo. II. c. 23, it is certain that that act neither enjoined nor contemplated any alteration of the old calendar, except in the period of time relating to the moveable feasts, and the tables of computation, as therein specified. In all other respects it leaves the old calendar just where it found it; consequently, whatever indirect sanction it affords to any “particular services” must be understood of the “particular services" contemplated by the old calendar; and these you have yourself admitted to be the particular services furnished by the convocation and the crown in 1662. But if you will turn to the statute, and the calendar annexed to it, which you will find in Gibson, 1255—1271, you will find the matter placed beyond all doubt. For the “certain solemn days, for which particular services are appointed,” are not the four which now stand in our Common Prayer Books, but the three, and the three only, for which provision had been made by the convocation and the crown in 1662. The fourth (for the sovereign's accession) is not mentioned in the act, though the service for it, provided by the authority of the crown alone, was and had long been in existence. Now this part of the calendar remained unaltered, either with or without the attention of the houses of parliament being specially directed to it. If without the special attention of the houses, then, under your favour, I will maintain that my obiter dictum" was rightly used, and that this statute has little or no weight in determining the point at issue. If, on the contrary, as you seem to imagine, the matter was carefully considered by the houses (in which case only the statute will be of worth) then we have a deliberate refusal, on the part of the houses of parliament, to give even the indirect sanction which this act might afford, to a service put forth by the crown alone. If, again, you will consider the terms in which the fifth of November is mentioned in the calendar, you will see further reason to acquiesce in my opinion. The occasions for celebrating that day, as specified in the new service of William the Third, are two: 1, For the happy deliverance of King James I. and the three estates of England, from the most traitorous and bloody intended massacre by gunpowder; 2, And also for the happy arrival of his Majesty King William on this day, for the deliverance of our church and nation. But the calendar provided by the act of George II., on which you build so much, omits altogether this second cause, and only specifies “ The fifth day of November, being the day kept in memory of the papists' conspiracy.”—Gibson, 1265. I contend, therefore, that whatever weight is to be ascribed to that statute and calendar is given wholly and exclusively to the services provided by the competent authority of convocation and crown in 1662, and cannot by any possibility be construed into a sanction for the prerogative alterations and additions, which the parliament has never recognised the crown alone as competent to make, unless in the case of any sudden emergency. I am, yours truly,
ALPHA, Feast of the Epiphany, 1838.
P.S. I cannot but observe that, in denying, as you do, that the convocation deserves to be considered as a provincial council, you are using language unknown to the church ; in the records of which, whether Roman or English, the style and title of provincial councils is ascribed to the convocations, chosen and constituted as at present. If you will look to Wilkins, iii. p. 227, 254, 211, (to name no more,) you will find that that which in the title is called “ Convocatio prælaterum et cleri Cant. Provinciæ,” in the text is called “ Concilium Provinciale.” At page 358, on the other hand, you will find that what in the title is called “ Concilium Provinciale Ebor,” in the text is called convocatio ; “Brevi Regium pro convocatione celebrandà.” If you will look to Labbé and Cossart's Councils, you will find that the convocations, as many as they knew about, are regularly entered among the councils.-See Conc. xi. 2077, 2079, 2323, &c. In vol. xiv. p. 1734, we have this account furnished by Cardinal Pole: “
synodum episcoporum, et reliqui hujus regni cleri, qui PROVINCIALIBUS SYNODIS DE JURE, vel de consuetudine interesse consuevit, bonæ memoriæ Othonis et Othoboni, aliorumque sanctæ sedis apostolicæ in hoc regno legatorum prædecessorum nostrorum, exempla secuti, auctoritate apostolicæ nobis hac legatione qua fungimur, concessa, convocatimus, et celebrarimus." He having, as appears by the Literæ Regiæ, (Wilkins, iv. 130) first obtained the permission of the crown. Again, Wilkins, iv. 155, we have “ Convocatio prælatorum et cleri provinciæ, Cantuar. auctoritate brevis regii celebrata per dom. Reginald. Polum, Cardin. Archiepiscopum Cant.” This in the text is called synodus, and sacrum concilium. Again, page 170, what the records call synodus provincialis Ebor, is no other, as appears by the note at the foot of the page,
a memorable convocation.” One more, to shew
that the same obtained after the Reforination in 1562, (Wilkins, iv. 232.) We have, in the title of the record, “ Convocatio prælatorum et cleri provinciæ Cantuar. &c.” In the text this is called sacra synodus, and synodus provincialis. And so throughout. From which I draw this conclusion, that however good in theory the distinctions set forth in the November Number between provincial convocations and provincial councils may be, they have, for many ages, been unknown in practice to this church and nation, which, as at present constituted, recognises no other provincial council, or provincial synod, than the provincial convocations of Canterbury and York; any alteration in the constitution of which, without their consent, can (I conceive) only be accomplished by a revolution. I wish to be understood as not ex. pressing nor intimating any opinion as to the merits, in principle, of the constitution of those assemblies; for we are debating about facts, and not principles. But I will venture to express an opinion, that the bishops only are competent to offer objection to it; and until they do, I am content.
MR. MAITLAND.-COUNCIL OF THOULOUSE. Sır,—The name of the Rev. S. R. Maitland is so completely associated with the idea of deep research and critical acumen, that every production of his pen cannot fail to excite a more than ordinary degree of interest; and, indeed, every lover of truth must acknowledge that Mr. Maitland has done good service to the cause of literature by detecting and exposing errors which had escaped the notice of less acute and careful observers, and might have thus passed down to posterity. The very works in which he has detected some important errors have been rendered more valuable by being cleared from what must ever be deemed a deformity: and assuredly the thanks of every candid inquirer are due to him by whose means important truths have been purified from the admixture of error. Having had occasion to examine somewhat minutely the councils of the Romish church, it was with no small degree of interest that I entered upon the perusal of Mr. Maitland's elaborate and valuable work, “ Facts and Documents," as he had travelled over much of the same ground with myself, and I felt anxious to avail myself of the remarks of so able a critic. Among other councils which it was my lot to examine was that of Tboulouse, and I was somewhat startled to find that, in translating one of the decrees of the said council, I had given a directly opposite meaning to a clause to that adopted by Mr. Maitland. My first impression was, that I was decidedly wrong, and there the matter rested for some time; my attention was, however, again called to the subject, and I have repeatedly considered it and examined it as well as I could, and must confess that the result has been, that my first impression in favour of Mr. Maitland's translation was wrong. I would therefore gladly avail myself of the opinion of more competent judges than myself. In p. 194 of his “ Facts and Documents,” Mr Maitland thus translates the xvth canon of the council of Thoulouse :* .“ We decree also, that
* I adopt Mr. Maitland's mode of spelling.