ECCLESIASTICAL APPEALS. T HE demand made by the members of one
party in the English Church for a Court of Appeal which shall contain no lay element, and in which a noted scoffer shall not have the power of pronouncing on the doctrine that he is thought to be desirous of subverting, and the discipline that might be applied to himself, has led to the production of a curious return on the High Court of Delegates. This body was invested with ecclesiastical jurisdiction in the twenty- fifth year of the reign of Henry VIII., and retained that jurisdiction till its powers were transferred to the Judicial Committee of the Privy Council in 1832. During those three hundred years it seems to have heard 192 appeals, ranging from questions of tithe and preferment to the correction of clergymen for heretical doctrine, and of laymen for absenting themselves from their parish churches. Many of the causes which were brought before the Court are remarkable in their nature. But the constitution and the procedure of the Court itself are worthy of attention. They will show us that the modern claim for a purely ecclesiastical tribunal is opposed to the practice of the Church of England since the time when "appeals or provocations" were made to the " Bishop of Rome, otherwise called Pope, or to the See of Rome." We shall also find that the toleration which marks the Judicial Committee was not absent from its predecessor. The number of appeals from inferior Courts which were allowed, or in which an amicable arrangement was brought about, forms a large proportion of the whole list. Excommunications were set aside, frivolous suits were dismissed, contempt of court was easily purged. We shall have occasion to examine the doctrinal cases more fully. But the composition of the Court will explain many of these features. The Act of Henry VIII. by which appeals to the Bishop of Rome were done away with, provided that all parties aggrieved by lack of justice in any of the Courts of the Archbishops might appeal to the King in Chancery, and that on every such appeal a Commission should be directed under the Great Seal to such persons as should be named by the King's Highness, like as in case of appeal from the Admiral's Court, to hear and determine the matter. The High Court of Delegates, which had for a long time heard appeals from the Courts of Admiralty, was thus vested with the power of deciding in ecclesiastical questions, or rather the Crown took into its own hands the nomination of ecclesiastical judges. During the earlier years which are covered by this return, the Court was often composed of civilians only, and the sen- tences passed savour of the law to which such judges would be naturally partial. A widow, who is accused of adultery, has to make canonical purgation by a declaration on oath attested by six of her neighbours. A layman who has laid violent hands upon his rector and maliciously defamed him incurs the penalty of the greater excommunication. A woman who rashly intrudes herself into a seat in the parish church of Yarmouth between the wives of the Aldermen is corrected and punished. After an infusion of the common-law element, punishment by excommunication, and a resort to the writ de excommunicato capiendo, are not so frequent. Thus we find a man excommunicated and imprisoned by a, lower Court for spreading a report that the vicar of his parish had been drank, but the case fell through on appeal to the Delegates. Much the same occurred with a baronet who was corrected for Immorality, with a schoolmaster who was excommunicated for teaching without a licence, with a man who (in 1702) was ordered to do penance in a white sheet in the parish church of St. Martin-in-the-Fields. The marquis, the common law judges, the bishops, and the doctors of laws who in 1731 were called upon to consider a complaint against Lady Mary Rogers, her daughter, and her servants, for hanging hats and bonnets against the partition between the church and the south aisle did not hesitate to dismiss the case, reversing the decrees of all the Courts below. But in 1782 a Commission, consisting of four Common Law Judges and four Doctors of Laws, and not being influenced by the presence of any Bishop, admonished a parishioner for leaving church during the sermon, instead of "abiding there orderly and soberly," in, obedience to the statute. It was proved that the parishioner left the church without disturbing any one, and his costs were taxed at a shilling only. But he was admonished " to behave himself decently and orderly, and to abide in his parish church during the time to come during all the time of divine service and preaching." There is no evidence as to the- length of the sermon, a matter which might probably weigh with the Judicial Committee if such a suit was now to be instituted.. But it appears that tithes formed the subject of the discourse, and we may conclude that the parishioner and his rector- differed as to the propriety of their payment. Perhaps the- rector was one of those clergymen who, when worsted in argu- ment, postpone the further consideration of the question till they go into the pulpit. An existing Bishop, when he found that he was overmatched, used to edify the House of Lords by praying that his opponents might be forgiven for the blas- phemy they had uttered. We are reminded of this by observing that the appeal to which we refer came from the: diocese of Exeter.
So far we have been considering matters of discipline, an& the offenders brought before the Delegates have been chiefly laymen. For tbem a lay, or at all events a mixed tribunal, might have been claimed. But the clergy were not altogether- differently treated. Even in doctrinal cases we are struck by the predominance of the lay element in the composition of the- Court. As it had to pronounce on appeals from the Courts of the several Archbishops, comprising the Prerogative Court of the province of Canterbury and the Court of Arches, and an its ecclesiastical jurisdiction was much wider than that of the- Judicial Committee, we might have supposed that its sittings• would always be attended by some of the bishops. Yet among all the appeals there are not more than two in which the Com- mission under the Great Seal was addressed to bishops only, and these two were heard in 1627 and 1628. Of the seven appeals which involved questions of doctrine, the first five- were heard by Commissions containing an equal number of bishops and common-law judges ; the two latest by common- law judges and civilians alone, without any bishop. In the first case of all, which was tried in 1666, one Woodward was- deprived " for having uttered various profane and blasphemous- speeches, e.g., that the Lord's Prayer was not commanded to- be used, that the Church of England might as well be called. the Church of Rome, that he had attained such perfection that- he could not ship and that one William Francklin, a rope maker, who had lived with him, was the Christ and Saviour." In one of the later cases, one Jones, a clergyman in the diocese- of Salisbury, appealed from a sentence of six months' suspen- sion for speaking against the Prayer Book. The Delegates: confirmed the sentence so far as the six months were con- cerned, but struck out a more material part of it which con- tinued the suspension till Jones should have satisfied the Bishop of Salisbury in the premises. In the famous Whisten, case and in the other doctrinal appeals no sentence was pro- nounced, and thus the total result of proceedings against heretical clergymen was somewhat nugatory. Indeed the was never noted for activity. It is remarkable that more than one-third of the whole number of appeals was= abandoned, and that in a great many cases the zeal of the inferior Courts was tempered, or their haste corrected, by the lukewarmness and the delays of the Court above. The pro- cedure was calculated to chill the litigants. The view which would recommend itself to a mixed body of common-law judges, bishops, and civilians differed from that taken by a. Dean of Arches or a Vicar-General. We see this in the cases. of the suits for correction of the laity, which were prosecuted vigorously in the Consistory Courts, but were discontinued either by the parties or the judges when they came before the of Appeal. Thus a layman who was ordered to do. penance for cohabiting with a widow (his reason for not, marrying her being that she was entitled to a legacy so long as she remained unmarried), and was excommunicated for not doing penance, was absolved by the Delegates on paying fees and taking " the usual oath de parendo jun.." Nothing less than a white sheet would have appeased the Consistory Court and the Court of Arches.
We have heard of a clergyman who in reading the Corn- mination Service always took upon himself to substitute human probabilities for the pious wishes of the Church. When he came to the passage, " until this godly discipline be restored, which is greatly to be wished," he invariably changed the latter part into, " which is scarcely to be expected." He would no doubt have been confirmed in his view by reading this return. There must have been more heresies than seven since the Restoration. Possibly more baronets than one have been immoral during the same period. Mr. Matthew Arnold complains that any one may keep a private school in England, even if he have been convicted of felony, which can hardly be the case if a schoolmaster teaching without any faculty or licence is liable to excommunication. Be this as it may, we cannot but gather from the return that the reformation of doctrine and discipline was not wholly effected by the Court of Delegates. Would any different result have followed if the procedure had been less tardy, and if the sentences of the Courts below had been ratified as often as they were reversed ? So long as appeals lay to the Bishop of Rome, we can imagine that the Roman standard of government, of which M. About has given us some details, and about which more is to be found in French pamphlets of the year 1859, might be adopted in England. But when once the lawgiver departed from between the Pope's feet there was not much chance of moral and spiritual offences being visited with the terrible penalties of olden times, and though the Act for executing the writ de excommunicato capiendo is still in force, though the Ecclesiastical Courts have still the power of punishing defa- mation and incontinence, we do not expect to see any parishioner of St. Martin-in-the-Fields doing penance in a white sheet, or to hear of hats and bonnets being incriminated in the Court of the Archdeacon of Totnes.
Previous page
