James Wayland Joyce.

England's sacred synods : a constitutional history of the convocations of the clergy, from the earliest records of Christianity in Britain to the date of the promulgation of the present Book of common prayer; including a list of all councils, ecclesiastical as well as civil, held in England, in whic online

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Online LibraryJames Wayland JoyceEngland's sacred synods : a constitutional history of the convocations of the clergy, from the earliest records of Christianity in Britain to the date of the promulgation of the present Book of common prayer; including a list of all councils, ecclesiastical as well as civil, held in England, in whic → online text (page 40 of 83)
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and act whenever the circumstances of the Church require it
so to do." Under a similar supposition this learned divine
goes even still further and says, " I ^ do confess the Church
has a right to its sitting, and if the circumstances be such as
to require their frequent sitting, it has a right to their
frequent meeting and sitting ; and if the prince be sensible of
this, and yet will not suffer his clergy to come together, in
that case I do acknowledge that he would abuse the trust
that is lodged in him, and deny the Church a benefit which of
right it ought to enjoy." And once again, as though these
expressions might still seem to subject the Church's assem-
blies to the inclination of the prince's conscience, our author,
though chaplain in ordinary at the time, rises in his language and
makes bold to write thus, " whenever the civil magistrate shall
so far abuse his authority as to render it necessary for the clergy
by some extraordinary methods to provide for the Church's
welfare, that necessity will warrant their taking of them'."
Happily we live in times when the authority of the civil magis-
trate is not in this respect abused, when the laws and customs
of this land are the rules which determine the regulation of
public affairs, and when, in accordance with ancient usage, the
royal writs for the summoning of the convocations invariably
issue acourse with the parliamentary writs from the offices of
the crown.

A. D. 1534.
K. Henry

e Wake's
xVuth. of
Princes, p.
145, and
Eccl. Syn.
p. 82.

f Kennett's
Eccl. Syn.
p. 83.

g Wake's
Auth. of
Piinces, p.

h Wake's
Auth. of
Princes, pp.
267-8, and
see Ken-
nett's Eccl.
Syn. p. 83.

i See Ken-
nett's Eccl.
Syn. p. 84.




A.D. 1534.






J See Att.
Riglits, pp.
99 et seq.
k 25 Hen.
VIII. c. 19,
sec. 1.
1 25 Hen.
VIII. c. 19,
sec. 6.
"n Atteib.

n Atteib.
Rigbts, p.

o 25 Hen.
VIII. c. 19,
sec. 7.

P See Burn's
Pref. Eccl.
Law, p. xiii.

<l Burn's
Pref. Eccl.
Law, p. XV.

2. Enacts that

The second



,i.sion contained in this act

the clergy shall was in J effect that the clero-y should neither ^

not attempt to ,, . ...

enforce any old coIlectivcly noF individually attempt to enforce

canons. s i , i j i •

any old canons ; but to this a proviso was
added ^ by the last clause, that all such canons as were then
in force, and which were not contrary to the laws of the
realm or the royal prerogative, should be used and executed
until reviewed. Thus the old "* canons were vacated, subject
to a review ; but in order that the nation might not be
abandoned to ecclesiastical anarchy during the process, all
such OLD canons as were not contrary to national law or royal
prerogative were continued " by the statute until the review
should be completed. That review, though commenced, was,
as we shall presently see, never brought to a full and final
conclusion. What, then, is the consequence ? By this act all
the ancient canon law of England, however much it may be
tainted with Romish abuse, w^as invested with statutable
authority in every case in which such canon law was not, in the
year 1534, " contrariant °, or repugnant to the laws, statutes,
and customs of this realm ; nor to the damage or hurt of the
king's prerogative royal." And this statutable authority was
again enforced by a subsequent p act, 35 Henry VIII. c. 16.
The first mentioned statute, though once repealed, was revived
by 1 Eliz. c. 1, and therefore "untiH such reformation as
aforesaid shall take effect, the canon law, so far as the same
was received here before the said statutes and is not contra-
riant to the common law nor to the statute law nor to the
prerogative royal, is recognized and enacted to be in force by
authority of parliament."

It is, I hope, no disregard to our legislature to say thus
much, that for any portion of national law to remain in so
anomalous a state as this is exceedingly unsatisfactory ; and
it is, perhaps, pardonable to add that the sooner the intentions
of this act for a reform of ecclesiastical law are carried out by
proper authority (the English provincial synods backed by
civil sanctions), the less perplexing will be the functions of

* That the words " attempt, allege, claim, or put in ure " refer to old canons,
and the words "enact, promulge, e.vecute " to new ones, has been satisfactorily
proved by Atterbury. See " Rights," pp. 99 — 130. For arguments maintaining
a different construction, see " Wake's State," pp. 535—622.




ecclesiastical courts, and the more creditable to this Church and
country will be the position, in which a very necessary branch
of jurisdiction will be placed.

The third provision of the statute before us

3. Enacts that . .. ^^, -, • i • i •, •

the clergy shall (accorduig to the Order in which it is con-
venient to view its enactments) was that the

enact, pro-


mulge, or exe-
cute" any new
canons without
the royal assent provincial Syuods,


and license.

their convocations, i. e. collectively in
should not " enact ^ pro-
mulge, or execute ^ any new canons, without the
royal assent and license *." And here they are tied up in
point ' of legislation as they were by the previous provision in
point of jurisdiction.

Now, it is abundantly clear that for many years («*. e. about
seventy) after ^ the enactment of this statute, it was gene-
rally understood that the convocations were only restrained
by it from " enacting, promulging, or executing " canons
without a royal license. The act was construed (in accor-
dance with, I believe, the universal practice in respect to
penal statutes) within the strict terms of the letter. The
clergy then " proposed, deliberated, and resolved ^ " in convo-
cation, without qualifying themselves for such business as
they had been used to transact (short of enacting canons) by
any precedent license under the broad seal ^, other than was
virtually contained in the original royal writ of summons ;
and this " was ^ then held to be a sufficient license for the
clergy's treating and consenting . . . but not for their conclud-
ing."" For this last word might be capable of a sense too
near akin to " enacting,^' and so might entail the penalties of
the act. And on such a footing matters stood for seventy
years. However, in the^ year 1586 (the 29th of Q. Eliza-
beth) the convocation having^ fallen under the displeasure
of the House of Commons, found themselves obliged to proceed
warily, and " to ^ adapt their practice to the most rigorous
and extensive construction of the statute of submission,'''' and
while then '' treating upon business brought before them, saw
that, to keep within the strict terms of the statute, they must
obtain the " license and assent '''' of the crown before enacting,
promulging, or executing their ordinances. This •= license they
6 The historical reasons above referred to seem to confine these words to new

A.D. 1534.
K. Henry

r 25 Hen.
VIII. c. 19,

sec. 1.
^ Atterb.
Rights, pp.
102 et seq.
106. 114-5.
' Atterb.
Rights, p.

" Atterb.
Rights, p.
393, and
Addend, p.

" Atterb.
Rights, p.

" Atterb.
Rights, pp.
394. 405.

" Atterb.
Rights, p.

y Atterb.
Rights, Ad-
dend, p. 363.
^ Atterb.
Rights, Ad-
dend, p. 654.
» Atterb.
Rights, Ad-
dend, p. 654.
b Atterb.
Rights, Ad-
dend, p. 644.

"^ Atterb.
Rights, Ad-
dend, p. 642.




A.n. 1534.






«< Atterb.
Rights, Ad-
dend, p. 648,
e Atterb.
Rights, Ad-
dend, p 654.
f Atterb.
Rights, Ad-
dend, pp.
e See Pref.
to Canons,
h See Pref.
to Canons,
1603 4.
hh See Pref.
to Canons,
* See 13
Car. II. c. 2.

J Wake's
p. 108.

k Wake's
State, p. 534.
Coke's Rep.
xii. 70 et
seq. apud
Pearce, Law

sought ^ and obtained. But it appears that this precedent of
issuing- a license under the broad seal, to qualify the convoca-
tion for "enacting'" canons, was in the year 1603 "improved
to the ® disadvantage of the clergy, and a license for decreeing
canons ^ turned into a license for treating and debating upon
them." For in that year K. James I. issued^ a hcense under
the great seal to the Convocation of Canterbury to "confer*',
treat, debate, consider, consult, and agi-ee" upon canons. Yet
even here, when the need of a license ^ for treating on canons
was suggested, it is not absolutely clear whether such supposed
necessity was grounded on the provisions of the statute we
are considering, or upon the king's^'' "prerogative royal, and
supreme authority in causes ecclesiastical.'''' For to these
terras it is notorious that a somewhat more extensive notion
of authority was then ' attached than is the case at present.

A resolution of ^^^ however this may be, about seven years
the learned judges aftcrwards, in the eighth year of this king, this

on this provision . . „ i i-

in the reign of Suggestion of the necessity for a royal license, as
araes . precedent to treating and debating upon canons,

was fortified by a resolution of the^ chief justices and judges,
at a committee of the lords, in these terms — that as a convoca-
tion cannot assemble without the assent of the king, so " after''
their assemhly the?/ cannot coxfer to constitute any canons loith-
out license del royT Now whether any expressions in the act
before us warrant such an interpretation is a matter of grave
doubt. Assuming for a moment, and here only for the sake of
argument, that they do not warrant it, then the gentlemen of
that profession to whom these matters specially belong will
say, whether a false exposition of law, even if backed by the
highest authority, is binding on posterity ; and whether prece-
dents, though fortified by the greatest names, can be allowed
to stand in the place of law, in cases where the statute to
which they have respect either fails to bear out the conclu-
sions thence drawn, or is contradictory to them.

But all precc- It is admitted that precedents and judg-
Law\ul"nTb?nd-^ ™ents iu the courts bear about with them some
ing on posterity, exteusivc and mysterious authority ; but still,
with all submission, precedents and judgments may be

' Sec also license issued to convocation in lfi40, printed with the canons of
that year, by Robt. Barker, printer to the king's most excellent majestj', 1640.




cited which could hardly be permitted in any case to

A remarkable For instance, in that very age when the chief
age*"^"now "under j"stices and judgcs resolvcd that the convoca-
consideration. ^Jqj^ could not " Confer ^ to Constitute any canons
without license del roy " a circumstance occurred which is
calculated to show that the judgments of those learned per-
sons must not always be taken upon content. At that time,
Sir Edward Coke™ excepted against an oath which he was
required to take upon his appointment as sheriff of Bucking-
hamshire. Upon his refusal to be sworn, the lord keeper sent to
all the judges for their opinion upon some of the clauses of this
oath ; among other points, they resolved that the statutes "^™
against Lollardism " were " intended against the religion now
professed and established, which before was condemned for
heresy, and is now held for the true religion.'''' Now, without
unreasonable disregard to the memory of those reverend and
learned persons, it must be said that their resolution goes
upon a wrong ground, involves very great mistakes, and leads
to false conclusions. For, without entering deeply into the
subject of the Lollards' heresies, it is certain that their tenets
were " widely different from the doctrine " and discipline ac-
cepted by the Church of England. First "they" maintained that
taking away any man''s life, either in war or courts of justice,
upon any account whatsoever, was expressly contrary to the
New Testament." Secondly " they p held every man was a
priest, and we need no other priest to be a mean for us unto
God." Now the first of these assertions is directly contradic-
tory to the thirty-seventh, and the second to the twenty-third
article of the Church of England ; so that these reverend judges
when deciding in favour of the Lollards' doctrines must either
have been unacquainted with them, or else unskilled in divinity
and ignorant of the principles of that religion which they them-
selves adjudged to be "professed and established," and "held for
the true religion." Nor can it be doubted but that a judicial
resolution so contradictory to facts, so subversive of national
rights, and of all civil and ecclesiastical jurisdiction, must be dis-
charged as a binding precedent from every forum whatsoever.

More modern ^ut that the resolutious of judgcs learned in
instances. ^^^ jg^^y canuot alvvays be received as ti'ue

A.D. 1534.
K. Henry

' Wake's
State, p. 534.
Pearce, Law

"' Coll. Ere.
Hist. iv.


™™ 5 Rich.
II. C.2.
2 Hen. IV.
c. J 5.

n Coll. Ecc.
Hist. iv.
262, citing
Coke's Re-
ports, fol.

o Coll. Ere.
Hist. iv.
263, citing
Cone. ii. p.

pCoII. Ecc.
Hist. iv.
263, citinfr
Fo.x, vol. ii.
p. 593.





A.D. 1534.






q Judgment,
Court of
July 8, 1850.

>■ Judgment,
Court of

Surprising an-
nouncements in
the Court of E.x-
cliequer, a. d.
1850, in reference
to this statute be-
fore us.

statements in matters of fact, and therefore as binding prece-
dents, we have more modern instances, and those, curiously
enough, in regard to this very act before us.

For in the interpretation of this statute now
before us the statements of the learned judges
of our own time must be approached with
extreme caution; and to prove this assertion
some evidence shall be produced.
In the Court of Exchequer, on the 8th of July, 1850, a
judgment in an important* case was delivered by the chief
baron, with the unanimous consent of his learned brethren.
In that judgment these words occur ^ : " we may remark,
that the statute 25 Henry VIII., c. 19, by giving the appeals
in all causes ecclesiastical from the archdeacon to the bishop
or ordinary, and from him to the king and no further (if such
was the effect of the statute) did hit restore the ancient laic of
the land as settled on this 2)oint hy the Constitutions of Clarendon
in the reign of Henry 11.^ Anno Domini 1164."

Now here is a direct assertion ; first, that the ancient law
of the land, previously to the enactment of 25 Henry
VIII., c. 19, provided that there should bean inherent right in
the kingly office to give judgment in the last resort upon all
ecclesiastical causes, even such as related to matters purely
spiritual, and affected the fundamental articles of the Chris-
tian faith. Such an announcement is in a very high degree
surprising, and, indeed, no way credible at first view. But
then it is the judgment of the chief baron of the Exchequer,
unanimously affirmed by his learned brethren. All this not-
withstanding, posterity can hardly be expected to admit this
precedent, and accept it as an exposition of the truth, con-
sidering that the unbroken testimony of history looks the
other way.

And secondly, the, unanimous judgment of the barons of
the Exchequer on this occasion affirmed that this final appeal
to the king was " settled by the Constitutions of Clarendon %
in the reign of K. Henry II,, a.d. IIG^." Eesting upon such
grave authority, this still more surprising announcement may,
perchance, hereafter be quoted as a precedent, and, it may be,
submitted for general acceptance. ]3ut with all due regard to

* In re Gorham, ex parte the Bp. of Exeter.




the unanimous determination of the learned barons, it must be
said that the eighth Constitution of Clarendon, the only one
treating on this subject, lays down a course altogether at
variance with their judgment, and gives the final appeal in
England to the archbishop, in whose province the cause has
commenced ®.

It would have been safer, one would have thought, before
moving in the direction of the Constitutions of Clarendon, to
have struck a light, and so proceeded by means of more regular
discoveries ; for, by rambling in the dark, the Court of Ex-
chequer missed its way to a remarkable degree, and fell
into a complication of error from which no imaginable inge-
nuity can rescue their precedent. Indeed, so far from proving
a safe guide to the learned profession, in threading the mazes
of constitutional law, this precedent will abide, a sad monument
of the catastrophe which befel the Court of Exchequer in that
enterprize. One advantage, however, may be derived from
this mishap ; a signal warning is here recorded against taking
at second hand the announcements ^ even of Mr. Justice Black-
stone on the subjects under our consideration.

Again, in the same year 1850, the chief jus-
tice and the justices ' of the Court of Queen's
Court of Queen's Beuch wcre Called upon to decide a point of
law which turned upon the interpretation of
two * clauses in this act now before us as com-

Still more sur
prising announce
meuts in the

Bench, A.D.I 8.50,
in reference to this

^ If injustice is done, recourse must be had to the king : — " Ut prsecepto ipsius
in curia archiepiscopi controversia terminetur, ita quod non debeat ultra procedi,
absque assensu regis," i.e. not to Rome. — Constitut. Clarendon, No. viii. Matt.
Par. ad an. 1164. Cone. Mag. Brit. i. 435. Coll. Eccl. Hist. ii. 274—6.

' It is a matter for surprise that, during the progress of the case (Gorham v.
Bp. of Exeter), to which this judgment refers, through the courts, it was never
discovered that the original appeal from the Court of Arches to the Judicial Com-
mittee of Privy Council, and against which a prohibition was sought, was not in
accordance with the statutes 24 Hen. VIII. c. 12, 25 Hen. VIII. c. 19, on
which reliance was placed. A cause, in accordance with the statute 24 Hen. VIII.
c. 1 2, sec. 6, ought to be carried directly from a bishop, not to the Arches Court,
but to the archbishop of the province on appeal, and from him, in cases touching
the king (sec. 9), to the upper house of convocation, or, as the coui-ts say, to the
Judicial Committee of Privy Council, 25 Hen. VIII. c. 19, sec. 4. But even after
this case found itself in the Arches Court of Canterbury (though how in accord-
ance with these statutes does not appear) an appeal thence to the Judicial Com-
mittee was clearly bad, as being " per saltum." The appeal from the Arches
Court of Canterbury was (by 24 Hen. VIII. c. 12, sec. T, and see Strype's Mem.

A.D. 1534.
K. Henry

s Blacks.
Com. B. iii.
c. 5 — (j'G.

' 25 Hen.
VIII. c. 19,
sees. 3. G,




A.T). 1534.






" 24 Hen.
VIII. c. 12,

sec. 9.
* Court of
Ai)ril 25,

^ .Tudt»n-ent
delivered by
Lord Chief
j\i)ril 25,
" Ibid.
y See pro-
ceedings in
and York
tions, Feb.
11,1531 N.s.
and May 4,
1531, above,
chap. X.
sec. i.v.
^24 Hen.
VIII. c. 12,
a See Judg-
ment, Court
of Queen's
i\pril 25,

b Statutes at
large, in

Titus, B. 1,
apud Rose,

pared with a clause in a previoii.s " statute. The judgment
delivered on that " occasion was adorned with much matter
appended by way of "illustration and ornament.''"' To pass
over the graver resolutions contained, which by the way are
not now supposed to be universally satisfactory to those gen-
tlemen whose studies particularly lie this way, it is certain
that some of the " illustrations and ornaments," forming an
integral part of that judgment, and on which indeed its con-
clusions were mainly founded, do not bear upon them such a
stamp of truth as will ensure for it future acceptance, even
though it may claim all the authority due to a precedent.

For instance, the court decided that in the spring of 1533
our legislature allowed " an ap'peal to the Pope ^ in all spiri-
tual suits,'''' and acted ''upon the principle^ . . . that the
spiritual jurisdiction tvhich belonged to the Pope as supreme
head of the Western Church should remain unaffected^ But
this is false ^ in history, contradictory to the terms of the sta-
tute ^ quoted, and unjust to the memory of our legislators of
that day ; and so this decision will hardly hold as a precedent
to be scrupulously followed.

The Court of Queen's Bench also pronounced on this oc-
casion, by the mouth of the learned author of the Lives of
the Chancellors, that ''■Sir Thomas More, a rigid ^ Roman
Catholic,'''' was lord chancellor when the statute (24 Hen.
VIII., c. 12) was passed, i.e. during that session of parlia-
ment'' which began Feb. 4 and ended April 7, 1533; more-
over, the decision of the court was partly grounded upon
this assumption. But this statement is wide of matter of
fact, for Sir Thomas ^lore surrendered the seals on the 16th
of May, 1532, and the "pliant" Audley succeeded to the
office of lord keeper on the 20th of the same month, and to
that of lord chancellor on the 6th of January "^ following. It
is therefore incredible that the members of the learned pro-

Cranmer, ji. TW) to the Archbishop of Canterbury in person, and from him there
lay, by section 9 of the same act, a further appeal, in cases touching the king, to
the upper house of convocation, or, as the courts say, to the Judicial Committee
of Privy Council. It is not a sufficient answer to say that the appeal to the arch-
bishop in person has been disused, because reliance was placed throughout on the
tiro statutes above quoted. But non-compliance " ab initio" with their provi-
sions would, it is supposed, if suggested at the time have prevailed ,to oust their
jurisdiction in the particular case.




fession will feel themselves hereafter constrained to admit this
precedent in the Court of Queen's Bench, so contradictory
to the acknowledged facts of history.

But in the interpretation of the statute now specially under
our notice ^ the Court of Queen's Bench advanced still farther,
and decided that in the year 1534 K. Henry VIII. was
^'' impatient to marry Anne Boleyn^r Now as Queen Eliza-
beth, the issue^ of their union, was born September 7, 1533,
there is here contained a most severe and unjust imputation
against the moral characters of that sovereign's father and
mother. They may both of them have had faults to answer
for, but the imputation of such an amount of flagrant profli-
gacy as is here involved cannot, with any regard for truth, be
charged upon those royal persons, who in fact were married s
at the end of 1532 or'' at the opening of the year 1533.
Roman Catholic historians have, as is well known, laboured
sedulously and often to cast aspersions on their matrimonial
alliance ; but it has been reserved for the Court of Queen's
Bench to fix so deep a stain of unchastity upon the royal
pair, and of illegitimacy upon their offspring, thus in a
solemnly recorded judgment casting a foul blot of dishonour
on the British crown in the person of England's virgin queen.
Historical truth was on this occasion, as one may say, pelted
out of court ; and this feat accomplished, facts, dates, and
national records were barbarously mangled, and finally tram-
pled down with excessive zeal into a shapeless mass of inex-
tricable confusion. Some caution seems no more than neces-
sary before this precedent in the Court of Queen's Bench is

Thus we see that interpretations which have been put upon
this act, even by learned judges, must be received at least
with some latitude of reserve, and that the " ornaments and
illustrations " with which they have thought proper to invest
it are subject to the gravest exceptions. Many resolutions
concerning it, which stand armed with the panoply of pre-
cedents, must surrender to that array of facts and dates,
which opposes an impenetrable front. For a true interpreta-
tion of the statute recourse must still be had to its terms, and

Online LibraryJames Wayland JoyceEngland's sacred synods : a constitutional history of the convocations of the clergy, from the earliest records of Christianity in Britain to the date of the promulgation of the present Book of common prayer; including a list of all councils, ecclesiastical as well as civil, held in England, in whic → online text (page 40 of 83)