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 69 of 83)
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ensuing sessions of parliament, "declaring'" that no canon or
constitution ecclesiastical made within the last ten years, or
to be made thereafter, should be of force to impeach or hurt
any person in his life, liberty, lands, or goods, unless it were
first confirmed by an act of the legislature."

Now the very introduction of this bill shews that at that
time these canons were held to have an inherent jurisdiction
which it required a specific statute to disable. The proposed
bill, however, miscarried ; and though several conferences
took place on the subject between the upper and lower
houses of parliament, those assemblies were dissolved before
any conclusions upon this matter were arrived at. As, there-
fore, the imperial legislature failed to interpose any statute
to prevent the execution of these canons, not only framed
according to ancient precedent by the provincial synods of
England, but fortified both in front and rear by royal autho-
rity, and, moreover, supported by the statute " above quoted,
a most anomalous state of events has ensued. The decision
of individual cases arising upon them has fallen from time
to time to the judges of ^Vcstminster Hall ; and those re-
verend and learned persons have thus been placed in very
perplexing positions. At least thus much we may gather
from the irreconcilable judgments on this subject which they
have delivered.




^ . . ^ For example, in the thirtieth year of K.

Opinions of ' ''

learnod judges on Charles 11. the Court of Queen's Bench decided
us su )jet . ^j^^^ these canons " are good ° by the statute 25

Hen. VIIL, sop long as they do not impugn the common law
or the prerogative-royal." Chief-justice Vaughan's judgment
is to the same purpose : " A i lawful canon,""' said he, " is the
law of the kingdom as well as an act of parliament, and what-
ever is the law of the kingdom is as much the law as any thing
else that is so, for what is law doth not ' suscipere magis aut
minus."* " Then, on the other hand, at a later period of our
history Lord Chief-justice Holt observed: ""'Tis'^ very plain
that all the clergy are bound by the canons confirmed by the
king, but they must be confirmed byparliament to bind the laity."'"'
And Chief-justice Lord Hardwicke thus gave the united judg-
ment ® of the Court of Queen"'s Bench at a still later time on
this subject, when he said', " We are all of opinion that proprio
vigore the canons of 1 603 do not bind the laity. I say
proprio vigore, because some of them are only declaratory of
the ancient canon law."" Lastly, Sir William Blackstone
has proceeded to disable the authority of this code, even to
a still greater extent than the two learned persons last men-
tioned, and thus writes of these canons, " Where " they are not
merely declaratory of the ancient canon law, but are intro-
ductory of new regulations, they do not bind the laity, what-
ever regard the clergy may think proper to pay them/"'

But with all deference to the memory of that learned judge,
this language, suggesting an option on the part of tlie clergy to
obey or disobey at their pleasure, falls very far short of the ex-
igency of the case, and is, moreover, altogether contradicted by
present practice. For example, to suggest one point only at this
time. Were any conscientious clergyman now to refuse Chris-
tian burial to some heretic', or scoffer at the holy sacrament,
or notorious profligate, he would very probably find to his cost
that the learned commentator's language, as regards the sixty-
eighth canon at least, hardly rises to the significance of such an
occasion. The clergy's choice is limited in such matters by a re-
straint somewhat more extensive than that assigned above, viz.
the regard which they may think proper to pay to these canons.
It cannot, I suppose, be reasonably doubted that, at the
time of the publication of the canons of 1603-4, the union of

A.D. 1604.
K. James I.

° Gibson's

Codex, p.


P Cory V.

Pepper ("2



n Gibson's

Codex, p.


r Bp. of S.
David's v.
Lucy (Car-
thew. 485),

et Uxor t:
' Pearce,
Law of Con-
vocation, p.
36, and see
Burn's Eccl.
Law, p. 26.

1 Blacks.
Com. i. 83.

V See Gib-
son's Codex,
p. 541.





« Sec War-
ner, Eccl.
Hist. ii. 48.0,
et sui)ra, pp.
3G9— 373.

*^ Burn's
Eccl. Law,
vol. i. pref.

p. XX.

synodical and royal authority, without any intervention of par-
liament, was constitutionally sufficient to " enact, promulge,
and execute " canons nenerally obligatory on the subject. Not
only does the whole tendency of ecclesiastical and civil legi.sla-
tion, subsequent to the discharge of the papal supremacy and
down to the period now under review, lead to such a conclu-
sion, but the fact above mentioned — that a bill was intro-
duced into the House of Commons to disable these very
canons — shews that such was the opinion entertained in that
assembly. The miscarriage of the bill, however, left the
obligation of these canons at that time untouched. But the
subsequent event has been, that the changes in the current of
popular opinions, and the gradual increase of the power of
parliament, as compared with that of the prerogative-royal
and of ecclesiastical jurisdictions, have gradually undermined
the original authority, and obligation of this code.

Indeed, from the judgments and opinions of the judges
above quoted, it readily appears how variable have been deci-
sions, even of those reverend and learned person.?, upon these
public documents during the several stages of our history and
under the gradual changes of public sentiment. We know
that by constant practice and careful attention a very high
degree of success in all professions may generally be secured ;
still one would incline to think that the rare power of extract-
ing from the same data conclusions varying in a fixed ratio
with the variable changes of human opinion, and at the same
time invariably coinciding with the popular sentiments of the
day, must be cultivated with some remarkable assiduity before
perfection in so curious an art can be attained, Moreover,
we are to consider that this ingenuity'^ has not always
been confined to interpretations of the'canons of 1603-4, but
has been extended also at times with surprising success to the
elucidation of the .statute law of England.

r, 1 However, to take the most restricted view of


cciveti notion of the obligation of this code before us, accordinac

tlic obligation of , . . . -i t •

tiie canons and to the opuuous now couiuionly rcccivcd, " It IS
to bo inquired'' how much of those canons is
agreeable to the ancient canon law, and how much is added of
new by the convocation of 1603: for in the former case the
same will be obligatory both upon the clergy and laity, and in




the latter case upon the clergy only,'"' witli perhaps the addi-
tion of those laymen ^ who are officially connected with eccle-
siastical courts, and also of such laymen as undertake the
office of churchwardens. But it must not be forgotten that,
over and above this code, there is another branch of canon law
statutably binding on all, both clergy and laity. To arrive how-
ever at a clear conception of its extent and bearings, some
careful researches and archaeological lore seem no more than
necessary. For the business ^ on this head must be to find out
first what is the old papal canon upon any point, " and ^ then to
find out how far the same was received here in England before
the statute (25 Hen. VIII. c. 19) was enacted, a.d. 1534, and
then ""^ to compare the same with the common law, and witli the
statute law, and with the law concerning the king's prerogative
(which is also part of the common law) ;" and from thence,
after these somewhat laborious investigations, will come out
the law by which Englishmen at this day are bound, and which
the superior courts, in accordance with the statutes ^ of this
realm, would on proper applications be bound to enforce. Such
a state of uncertainty, doubt, and miserable perplexity can
hardly recommend itself to any reasonable man. And it cer-
tainly does seem little creditable to the common sense of this
nation that any delays should be interposed to placing a neces-
sary branch of law in this land on a more satisfactory footing
by means of proper constitutional authorities, that is, by the
conjoint jurisdiction appertaining to the synods of the Church,
the sovereign, and the parliament.

Revised Prayer It was remarked in a former chapter *= that the
SncUoned''sjT Player Book, as revised a. d. 1 559, did not at that
^'''^^'^'y- time receive the formal sanction of our provincial

synods. This defect, however, for it must be so considered,
was now removed upon the enactment of the canons of 1 603-4.
For the due consideration of this point we must take a
step backwards. In the Hampton ^ Court conference, which
our subject did not lead us to consider in detail, many
exceptions had been lately taken against the Prayer Book
then received, i. e. the book of 1559. And although most of the
querulous complaints urged were at the time overruled, yet
for the sake of bringing the work to an unexceptionable
standard and of disabling any reasonable scruples, a few alter

A.D. lf;04.
K. James I.

y See Burn's
Eccl. Law,
pref. p. XX.

^ See 25
Hen. Vlll.
f. 19. 1 & 2
I'll, and
Mar. c. 8.
1 KHz. c. 1.
^ Burn's
E(-cl. Law,
pref. p. XV.
'^^ Burn's
Eccl. Lawr,
pref. p. XV.

!> 25 Hen.
VHL c. 19.

1 Eliz.c. 1.

<= See cliap.
xii. sec. 20.
pp. 541-3
and 553.

•1 See Col
vii. 271—




A.D. 1604.


See of Cant.




e Coli. vii.

ations^ were agreed to by tlie bishops. Those alterations
were of no very great moment. Such, however, as they were
may be seen on perusal of the note \ The book so revised

' The Prayer Book* of 1559 underwent the following changes in 1604 : —

In the calendar these alterations were made. To August 26 this note was ap-
pended : "The 13th of Daniel, touching the historie of Susanna, is to be read
unto theis words, ' and King Astyages,' " &c. For the same day at evening
prayer the 30th chapter of Proverbs was substituted for the 14th of Daniel con-
cerning Bol and the Dragon. These chapters concerning Susanna and Bel and
the Dragon are, it must be borne in mind, now " set apart " from the Book of
the Prophet Daniel in our authorized translation. On the 1st of October instead
of the 5th chapter of Tobit a portion of the 6th of Exodus was appointed for
morning prayer, and for evening prayer the 20th chapter of Joshua was substi-
tuted for the 6th of Tobit. On the 2nd of October the 8th chapter of Tobit was
to be replaced by the 22nd of Joshua ; and on the 17th of November the 46th
chapter of Ecclesiasticus was to be read as far as the words " after this he
told," &c.

As regards the body of the book, the following were the alterations made. In
the rubric, before the absolution, the words "or remission of sins " were added.
After the prayer for the king, one for the queen and the royal family was intro-

In the litany an insertion also to the same effect was made.

Some particular thanksgivings were appended, ^^z. : — " For rain," " For fair
weather," " For plenty," " For peace and victory," and " For deliverance from
the plague."

In the Gospel for the second Sunday after Easter, and in one other like case,
the words " Jesus said " were substituted for " Jesus said to his disciples."
These last three words were an interj>olation : to this the puritans had demurred,
and they were certainly warranted in so doing by the sacred text.

The rubric before private baptism was amended. In place of the words, " First
let them that be present," &c., this form of expression was now used, " First let
the latrjul minister and them that be present," &c. And moreover some expres-
sions in other parts of this service, which seemed f before to admit of lay baptism,
were so turned as expressly to exclude it. This fact, taken in connexion with the
twelfth article of 1576 n.s. J, before considered, seems very clearly to prove that
at this time the judgment of the EngUsh Church was opposed to lay baptism.

Additions were made to the catechism taking in all the questions and answers
touching the sacraments. _

In the title of the order for confirmation this difference was now made. In the
Prayer Book of 1559 the words stood thus: "Confirmation, wherein is contained
a catechism for children" They were now printed as follow: "The order of
confirmation or laying on of hands upon children baptized and able to render an
account of their faith according to the catechism following."

The document which authorized the printing of this book is dated § Feb. 9,

• See Lathbury's Hist, of the Convocation. Wheatly, Introduction, p. 24.
Collier, Ecc. Hi^t. vii. 298-9. Berons' Hist, of Prayer Book, p. 97.
t Gibson's Codex, p. 447, and see pp. 447-8.
X Vid. sup. c. xiii. sec. x. p. 582. § Lathbury, 219.




received full synodical sanctions by the canons of 1603-4, lately
under consideration. This sanction was imparted by the fourth,
sixth, fourteenth, thirty-sixth, and eightieth of those canons.
And as soon as their own synodical authority was established
by both provinces, which is an indisputable ^ fact, the present
alterations in the Prayer Book received the formal approba-
tion of the whole English Church ; and so the entire book, as
printed at this time, became the service book of this nation,
subject, so far as proper ecclesiastical sanctions are concerned,
neither to just cavil nor reasonable exception.

The provincial Synod of Canterbury having dispatched the
important business above alluded to, broke up ^ on the 9th of
July, 1G04, two days after the rising of the parliament.

III. Parliament ^s regards the parliament ^ which met March
of 1604 N.s. 29^ I QQ^ ^5^ acourse with the provincial synod

last under consideration, some acts were passed affecting the

One statute ' was passed for disabling the crown from re-
ceiving conveyances of the estates of spiritual prelates ; an
act, it would seem, no more than necessary, considering the
havoc which had been made of Church property in the late
reign, to say nothing of the sacrilegious plunders previously
committed by K. Henry VIII. and the courtiers of K. Ed-
ward VI. For it has been a query with some " whether J
settling a perpetuity of poverty upon the Church " might not
be "much more prejudicial than fire and faggot; whether
destroying bishoprics is not a much greater hardship than
destroying bishops, because this severity affects succession
and reaches down to future ages ;" and whether, " as the
world goes, it is not more easy to recruit bishops than the
revenues to support them." However, this statute was di-
rected against such abuses, and thus those who had neither
honesty or courage to defend sacred deposits committed to

and the work shortly after issued from the press of Barker. A royal proclamation
for its use was signed * March 5, 1604 n.s. But here it is to be observed that the
date of the introduction of this revised service book into each province and diocese,
in accordance with primitive practice, was left respectively f to the metropoUtans
and their suffragans.

• Cone. ]\Iag. Brit. iv. 378.

t Cone. Mag. Brit. iv. 378.

A.D. 1604.
K. James I.

fVid. sup.
p. 625.

g Coll. vii.

'' Hume,
ch. xlv. p.

' 1 James I.

J Coll. viii.




A.D. 1604.


See of Cant.





1 Jar. I.
c. 4.

»> 1 Mar.
Sess. 2, c. 2.
n 5 & () K(l.
VI. c. 12.
o 1 .lac. I.
c. 2.5.

oo 1 Jac. I.
c. 2.5.

q Cone.
Mag. Brit,
iv. 379.
>• Coll. vii.


« Coll. V
' Coll. V

" Coll. vii.

their stewardship were prevented'' from inipoveri.shing the
Church ; and the king, meanwhile, was debarred from com-
mitting sacrilege and relieved from the importunities of greedy

In this parliament, also, a bill was pa.ssed for the easier
execution ' of the law against recusants. A statute '" of Q.
Mary's was repealed, and thus the statute" of K. Edward YI.
respecting the lawfulness of marriage among the clergy was
now revived". And, moreover °°, 1 Mar. c. 2, repealing 1 Ed.
YI. c. 2, was itself repealed, the latter statute having reference
to the election of bishops.

This parliament sat till the 7th p of July, 1604, one day
after the prorogation "i of the York provincial Synod, and,
as was said, two days "^ before the prorogation of the Synod
of Canterbury.

T.- . About nine months after the death of Arch-

• IV. Accession

of Archbishop bishop John Whitgift, Richard Bancroft, who
as Bishop of London had presided during the
vacancy in the last southern synod, was promoted to the see
of Canterbury* on the 4th of December, 1604. This prelate
was learned * in controversy, an excellent preacher, well versed
in statesmanship, and filled the high office to which he was
called with great credit to himself and advantage to the
Church. Ruling " with vigour, he was active in pressing con-
formity, took care that divine service should be exactly per-
formed in accordance with the rules of the liturgy, that fasts
and festivals should be duly observed, and that the significant
proprieties of clerical vestments should be respected. Thus
he had some success in recovering the Church to that
state in which the reformers had left her, and in which she
existed before the novel principles of puritanism had of late
woven their entanglements around her. Moreover, the thirty-
sixth of the canons now lately passed obliged the clergy to
subscribe the Prayer Book in no loose and reserved sense, so
that there was not much room left in that respect for latitude
of persuasion among them. Bancroft's strictness was inter-
preted by some as over rigorous. But if in the next succes-
sion the ecclesiastical government had been as firmly managed,
it is possible that less disastrous events might have befallen
this Church and nation.




In the Canterbury and York provincial Synods

V. Provincial , . , . -^ ^ _, ^, ^ ''

syno.is of Nov. wliich Were Continued^ to J^eb. 8, 1605 n.s,,
it does not appear that active business was
entered upon. Those, however, which met in the autumn of
that year, viz. on November 6 and November 9 respectively,
will require some careful consideration.

1. Canterbury ^^ the 5th ^ day of November, 1605, that
^-'^°'^- parliament was summoned to meet which so

narrowly escaped being blown up by gunpowder ^^. The Can-
terbury Synod meeting acourse with it assembled^ on the
following dayy. The new archbishop, Bancroft, at the first
meeting of the synod ^ recommended Dr. Overall % dean of
S. Paul's, as prolocutor, in the room of Dr. Ravis, lately
promoted to the see of Gloucester. The synod was thence
adjourned'' to Westminster Abbey, where a meeting*^ was
held the following week, November 1 3.

"Articuiicieri" It was, I presumo, on this last day that an
the'comLoT kw agreement was come to in the synod respecting
j"''g"'^- a representation to be made by the archbishop

to the lords of the privy council " in the ^ name of the whole
clergy.'''' For it is matter of® history that in Michaelmas term
this year^ " certain articles of abuses, which are desired to be
reformed in granting s of prohibitions," were exhibited as
" Articuli cleri" against the judges of the common law courts,
who it seems were now over forward in directing prohibi-
tions against the courts of ecclesiastical jurisdiction. And as
these articles ran in the name of " ^ the whole clergy^'''' it seems
pretty plain that they must have had synodical sanction, and,
if so, that that sanction must have been accorded in this
session *, for it was the J only session held in Michaelmas term
this year after the first assembly of the synod. Moreover we
find in the following year this subject introduced into the
synod with a very satisfactory event ; for the archbishop ac-
quainted ^ the lower house " that the ' king hath consented to
put a restraint on prohibitions ;" and so these articles of the
clergy seem to have met with sufficient success, at least for a
season ^.

But whether they were agreed upon in synod on Nov. 13,
1 605, or on some other occasion, it is certain that Archbishop
Bancroft did exhibit these articles in INliehaelmas terra of tliis

A.D. 1605.
K. James I.

^ Cone.
INIafi. r$rit.
iv. '379.

" Coll. vii.

"w Linffanl,
Hist. Ensr.
pp. 41— G7.
■'^ Cone.
Mag. Brit,
iv. 379. 412.
y Nov. 6.
^ Sess. 1,
Nov. 6.
^ Strype's
Ann. iv.

b Strype's
Ann. iv.

'' W^ake's
State, p.

d Cone.
Mag. Brit.
iv. 417-
e Coke's
Inst. pt. ii.
fol. 601.
f Coll. vii.
g Cone.
Ma^. Brit.
iv. 417.

'' Cone.
Mag. Brit,
iv. 417.
Coll. vii.

i Nov. 1 3.
J Wake's
State, 507.
Cone. Mag.
Brit. iv.

k Sess. 3,
Nov. 21,
' Strype's
Ann. iv.

™ See Caid.
Syn. p. 589,
and autho-
rities there
() noted in
the note.




A.D. 1605.






" Cone.
Majr. Brit,
iv. 417 —
424, and
Coll. iii. 12

9 Ed. ir.
P Gibson's
Codex, p. 7.
q See Art. 4
and Art. 15.
f 160G.
6 Coll. iii.
12—40, and
vii. 314.
t Coke's
Inst. ii. fol.
(iOl et scq.
" See

Answers 7.
9. 13, 14.
IG. 20,21.

^ Coke's
Inst. ii. fol.
Coll. vii.

»■ Coll. vii

" Blacks.
Com. b. iii.
c. 5, r^.
>• Coll. iii.
41. viii.315.
'■ Coke's
Rep. lib.
viii. fol. 117
It sen. apud
Coll. ■•


lyear, and in the name of the wliole clergy. They run" to
twenty-five heads, and are founded upon the famous statute °,
called " Articuli cleri," passed p by parliament at Lincoln in
the year 13 J 5. The complaints of the clerjry against the pro-
ceedings of the judges seem to have had some reasonable
foundation, and were supported by telling i facts. But with-
out entering into them here, it may be remarked that in
Easter tei-ra "■ following all the judges, together with the
barons of the exchequer, delivered * their answers to the lords
of the privy council on the complaints exhibited. The
answers * run to the same number as the articles, viz. twenty-
five, and are penned with a" certain affectation of superiority,
and with no disguised contempt of those to whose complaints
these learned persons appear to have lain under an obligation
to make answer.

Sir E Coke Thesc resolutions contained in the judges'
magnifies tbe re- answcrs and Submitted to the council board,

plies of those o-t^i i rt -i

learned persons feir Jjidward Cokc would havc ' to be " the
y. highest authority in law." The unanimous
opinion of the learned judges is doubtless a very high autho-
rity in cases where they are justly empowered to pronounce ;
but on this occasion to call it the " highest authority in law,"
or indeed to challenge any obligatory authority at all for it, is a
claim which seems no way warranted. The contest here was
about privilege and juri.sdiction between ecclesiastical and tem-
poral courts, two inferior branches of jurisdiction according to
the hypothesis, for that there was a superior court is acknow-
ledged ^ by the judges themselves in their answer. Moreover,
this fact was admitted by their making returns to the complaints
instituted against them. They were charged with overstraining
their authority to the prejudice of others, and so were for the
time removed from the bench to plead at the bar, or rather
their character shrunk down to the stature of a defendant in
the suit. It was not that their judgment here was sought,
but a justification of their practice was required. Now that
"no man should be judge in his own cause*" is a maxim of
law of perpetual existence, one which has ^ had a very sensible
effect on^ our jurisprudence, and one moreover which Sir E.
Coke has himself^ cited when interpretation and not con([uest
* " Iiiiquum est aliquem sute rei esse judicem."




was his aim. And as the constitution of England has never

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 69 of 83)