ARCHDEACON HALE'S PRECEDENTS FROM THE
ECCLESIASTICAL COURTS.

A Series of Precedents and Proceedings in Criminal Causes, extending from the year 1475 to 1640: extracted from Act Books of Ecclesiastical Courts in the Diocese of London, illustrative of the Discipline of the Church of England. To which is prefixed an Introductory Essay. By WILLIAM HALE HALE, Archdeacon of London. London: Rivingtons, 1847. 8vo. pp. lxiii. 280.

THERE are not a few reasons, for which we both gladly receive this book, and recommend it to our readers. At all times it is of importance to be enabled to refer to facts. And more especially, in the present day, when people are expecting considerable changes to take place in our Ecclesiastical arrangements, publications which supply accurate information concerning the condition of the country in the fifteenth and sixteenth centuries, are very acceptable. If ever this land was visited with the fever and plague of the love of change, in religious matters, whether relating to doctrine or to discipline, it was then people who were in authority seemed to be making religion into a kind of kaleidoscope, so that no two persons should see it under the same aspect, nor even the same person, at two different times. Any characteristics therefore of a Church, which survived the struggles of that period, and still clung to the Church of England, as notes and marks of her vitality, must have been deeply seated in her constitution, and have formed an integral portion of her existence. Facts also, as the proverb says, are stubborn things; they are not at the mercy of every visionary theorist, to be set up on the one hand, and knocked down upon the other, but they stand uninfluenced by the opinion of succeeding generations, strong either to support or to condemn, independent, and incapable of variety and change. The doings and the practices of our forefathers are things gone by; whether for good or evil, they are beyond our power; and we may make a twofold use of them: either as marks of warning and example; or, as tests and evidences of the morals, and the faith, of those who did them. A single fact, produced upon sufficient testimony, is better than a host of suppositions without a fact. It may be made certain, almost to demonstration, by a series of well connected arguments that people at any given time, could not have believed, or practised such or such things and then one little fact, to the utter confusion of the whole train, proves quite to demonstration, the exact contrary. And if such is the power of one or two or three insulated facts, how infinitely greater is the accumulated proof of a long series,

bearing upon any question, upon which we may desire to be informed, as in the case of the volume now before us.

We have also, as to this book, the further satisfaction which is furnished, by the reliance which we can place upon the author himself. As a selection, this "Series" must of course be liable to those objections, which necessarily attach themselves to all books of the same character: in which the judgment of the editor must occasionally be at fault, and he cannot but be himself conscious that matter ought to have been omitted which he has taken, or ought to have been prominently put forward, which he has either left in the back ground, or rejected altogether. But the name of Archdeacon Hale authorizes us to conclude at least thus much: namely, that to the best of his judgment, without any reference to party, and party questions, he has selected a sufficient series of cases, to prove the point which he had proposed to himself: and that he has not omitted, (for omission in these matters is the great danger and temptation) any case which would throw light upon the subject, or be of consequence in its bearing, whether pro or con, upon the many subjects which are being agitated amongst us, at the present time.

Among these subjects, we believe that few are encumbered with greater difficulties, than the question of Church Discipline and this, not merely as it may be supposed (by the vulgar) to affect the Clergy only, but the laity no less. Some years ago, it was usual to speak of "the Church," and of men "going into the Church," as if no one was a Christian, unless he were at least in Deacon's Orders, and that Holy Baptism left people heathens as before and really, when we hear persons otherwise perhaps well-informed, talking about Church discipline, we now cannot suppose that they have a just and adequate notion of what "the Church" means, or that her discipline can be acknowledged to extend to, and reach over, and include within its power of punishment, any one who is not in Holy Orders. Church discipline is regarded very much like the Articles of War; only concerning those who are officers: and that as the people are not bound by the one, so neither need they trouble themselves, or be troubled, with the other. Always excepting as lookers on, or meddlers: for in this last capacity, upon the question of Church discipline, we have but little reason to complain of any deficiency of numbers, whatever may be thought of the learning, and wisdom of those who are so anxious to interfere. But we will now turn from pursuing these few observations to Archdeacon Hale's book; of which one chief object is, to prove, that the discipline of the Church not only ought to be, but actually was, exercised, equally over both Clergy and laity, up to the period of the Great Rebellion.

The Archdeacon at the commencement of his preliminary Essay argues, first: (we take our own arrangement :) that the Ecclesiastical Courts" of this kingdom, "have ever possessed the power

of Citation, by virtue of which they caused persons to answer for various moral and religious offences, pertaining 'ad regimen animarum' and which Citation was enforced against contumacious persons by the authority of the Crown." Secondly, that this power "was not acquired by the Bishops, through the growing influence of the court of Rome, or by the silent introduction of the Canon Law, but that having been in Anglo-Saxon times exercised by a mixed tribunal, it was, by an ordinance of the Conqueror, vested in the Bishops alone." (p. xvi.) And thirdly, that "the Reformation is unjustly blamed, as if it had occasioned the overthrow of that authority in matters of faith and conduct over the Lay, as well as Clerical members of our Church, to which in former times every one was amenable: and that for nearly a century subsequent to the Reformation, until the year 1640, the faults and vices both of the laity and Clergy, whether in faith, or morals, or Ecclesiastical observances, were the subject of most vigilant inquiry, and were corrected and punished accordingly to one uniform system." (p. iv.)

Before we proceed further, it may be as well to notice, that the Archdeacon's preliminary Essay is not intended for the perusal of people who know nothing beforehand of the principles and practice of Ecclesiastical Law and History: on the contrary, it pre-supposes a certain amount of knowledge; not very large certainly, but still something; or else his readers will not, so far as we can see, be much benefited by the perusal of it. Whether this has proceeded from a dislike to enter into the rudiments of the subject; or from a desire that his volume should not be of a too commonplace and popular a character, we know not. So it is; and the consequence will be, that many persons will not take the trouble to read his Essay: because they are entirely ignorant of the whole subject. We have noticed this, because our object is not to give an analysis or abridgment of the Essay, but to observe upon some passages and parts of it, also supposing a certain amount of previous knowledge in our readers.

To return then to the three positions laid down by the Archdeacon. With the first we agree for in fact, it is little more than a truism. Courts of Justice, whether Ecclesiastical or Civil, must have, of necessity, a power of citation coequal and concurrent with the limits of their jurisdiction. And by jurisdiction, as applied to the former, we mean what the Canonists understand by the terms potestas and auctoritas. It matters not whether the term jurisdiction, i.e. Ecclesiastical, was ever used by any of the Fathers before S. Gregory the Great, in whose works it undoubtedly occurs, (see e.g. Opera, tom. 2, p. 1266,) for if the Church of CHRIST, by the will of her Blessed LORD, and by His institution, always had magistrates and the power of making laws, and of enforcing them, of punishing the guilty, and of restraining the wrong doer, she must always have had jurisdiction: to dispute further, is to dispute

only about words. But such a jurisdiction would have been idle without the power also of citation, of passing sentence, and of carrying it into execution. For all these are no less necessary, the one than the other. The point really is, how was this last power acquired? Our author says "from the Crown." In one sense, certainly, it was. "My kingdom is not of this world," were His words, Who founded a kingdom: and it was left with the possession of no earthly sword, to rely solely upon the terrors which surrounded it, of spiritual censures. So long as the Church of CHRIST was under persecution, she was not able to use a stronger weapon; but these were all-powerful: never were her edicts and sentences more humbly obeyed, than when her Bishops sat in council in hiding-places, and in the dark catacombs of cities: and the thunders of her excommunications were as tremendous then, as when uttered in after years from the palace of the Vatican. "Whosesoever sins ye remit, they are remitted unto them and whosesoever sins ye retain, they are retained :" this was from the beginning, to be exercised "in interiori foro:" nor was the authority "in exteriori" of less early date. "Tell it to the Church; and if he will not hear the Church, let him be unto thee, as an heathen man and a publican." Here we have the accuser, the accused, the judge, the consideration of the case, sentence, and execution. But when the times of persecution went by, and the State first tolerated, and then aided Christianity, the rulers of the Church were not long in discovering that over the mixed multitude, which from so many various causes now pressed into the fold, she must exercise other influence, and obtain other aid. The citations and the sentences of the Ecclesiastical courts were enforced therefore by the civil power: and as nation after nation of the western world were converted, kings and rulers added the weight of their co-operation, and the sanction of their laws, to the decisions of the Bishops of the Church. Hence, as the Archdeacon says, "the authority of the English Ecclesiastical Courts was of purely English origin, proceeding from the great councils of the nation, which voluntarily and freely admitted the law of religion, as a branch of the national jurisprudence." (p. xvi.)

The first part of the second position of the Archdeacon follows then as a matter of course: "the power of citation was not acquired through the growing influence of the Court of Rome, but having been" for some centuries among the Anglo-Saxons, "exercised by a mixed tribunal, it was, by an ordinance of the Conqueror, vested in the Bishops alone." We have not space to enter into the subject of this last sentence so minutely as it deserves, and we are obliged to leave to the fair consideration of our readers, how far the rapid progress towards a system then making by the Roman Courts and Canonists, influenced the practice of our courts at home; how little or how much inclined the Conqueror would be to admit into his new kingdom the laws and rules of an Ecclesiastical

superior, from whom he acknowledged that he had received authority to make his invasion; how far, lastly, he was influenced by merely political motives, in separating and distinguishing the various causes which had hitherto been decided, whether of a spiritual or of a temporal kind, before one judgment-seat, upon which sat the Saxon Ealdorman and the Bishop of the Diocese.

The third argument of our author is that upon which most of his readers will, we cannot doubt, hesitate in their judgment, namely, whether to the Reformation is to be attributed that loss of authority over the lay members of our Church, which it is as impossible for us to be blind to, as it would be absurd to deny. The Archdeacon fully admits the fact, that in respect of such authority "our Church is more defective than any other religious community." Startling words! and we are thankful for this volume, if it is only that the world may hear from the mouth of one of the dignitaries and high officers of the Church of England this confession, "our Church is more defective in her power over the laity, than any other religious community." The enunciation of so sad a truth, by one whose words will be listened to with an attention due to his position, cannot but be followed by some consideration of it, and perhaps endeavours to rectify the evil: and we repeat, that we are thankful to the Archdeacon for his honesty and openness in laying thus bare our real condition. But, such being our present state, to what is it to be attributed? not to the Reformation, the Archdeacon tells us, and why? because for nearly eighty years afterwards, the civil courts furnish many instances still, of immoralities committed by lay members, punished, as in former years. Surely, independently of the violent shock which it received under King Edward, one hundred years was no long time for a system, such as the old ecclesiastical discipline, to die out; and we cannot but believe that the Archdeacon himself must acknowledge, that the examples of real supervision over the morals of the laity become less real as we proceed towards the conclusion of his volume, and more mixed up with the political differences and opinions of the day.

It is quite certain that towards the latter end of King Edward the Sixth's reign there were many and loud complaints against the decay, or rather overthrow, of ecclesiastical discipline. Let us quote Archdeacon Hale's own words: "It must be acknowledged, that although the Acts of Parliament of the reign of Edward VI. contain abundant evidence of the recognition of the Ecclesiastical jurisdiction, there is reason to believe, that its power so far ceased for a time to be exercised, as to justify the complaints made in the latter part of

Archdeacon Wilberforce, in his excellent work on Church Discipline, brings down cases to a much later period, until late in the last century. We take this opportunity of recommending this book very strongly to our readers. It has the great merit of offering practical suggestions, as well as theoretical arguments: based upon a sound knowledge of the subject.