,transcribed from the #ahea ,joseph ,masters edition by ,david ,price1 email ccx#jgdpglaf4org ,picture3 ,public domain book cover ,a ,,second ,,letter ,,to ,,the ,,bishop ,,of ,,exeter4 99 99 99 99 99 ,,by ,a ,,layman 99 99 99 99 99 ,,for ,,private ,,circulation ,,only4 99 99 99 99 99 ,,london3 ,,printed ,,for ,,the ,,author ,,by ,,joseph ,,masters1 ,,aldersgate ,,street4 ,,mdcccli4 99 99 99 99 99 ,a ,,letter4 ,,my ,,dear ,,lord1 ,i ,,trust ,i can now satisfy you that we have both been labouring under a great mistake for some time1 and that after all no ecclesiastical rule can properly be said to have been violated by the judgment of the ,privy ,council in the ,gorham ,case1 but that it is quite right that the ,crown should have the jurisdiction in such a case which they have actually exercised4 ,the question then is this1 ,what is the real nature of the suit called ,duplex ,querela8 ,for a suit it is no doubt1 7though ,i had at one time thought otherwise7 and one too in the ,archbishop's ,court4 ,you will find from our older authorities that the ,archbishops of ,canterbury in former times used to claim the right of interfering in their comprovincial dioceses per simplicem querelam1 i4e4 as ,i believe1 of acting1 so to speak1 in all cases as joint ordinary with each ,bishop throughout their province4 ,this claim of jurisdiction is specially mentioned and discussed in ,gibson's ,codex4 ,this right1 however1 was disputed and given up1 and the jurisdiction was ultimately confined to those cases alone in which1 after an application to the ,comprovincial ,bishop1 he had heard the ,clerk and decided wrongly against him4 ,this right the injured ,clerk pursued by the process called the ,duplex ,querela1 a process there is some reason to believe peculiar to the province of ,canterbury1 and arising from the legatine jurisdiction of that ,see1--as it is well known that the ,archbishops of ,canterbury anciently claimed to be legati nati of the ,pope4 #d ,but whether this be so or not1 it is clear that either on this ground or as metropolitans1 they have always exercised this jurisdiction within their province4 ,i cannot find any instance of the ,archbishop of ,york doing this1 which inclines me to this hypothesis of the legatine jurisdiction4 ,if this be the nature of the ,duplex ,querela it is manifest that it consists really of two parts wholly separate and distinct from each other2 one1 a suit in the ,archbishop's ,court for the purpose of determining whether the ,archbishop has in the particular case1 this jurisdiction3 and this depends on the question whether the ,bishop has committed an error2--and secondly1 a claim by the ,clerk that if the ,archbishop has jurisdiction he shall act or proceed to institute the ,clerk as upon a presentation made to himself in his own diocese4 ,now the suit1 and of course the ,appeal to the ,privy ,council1 is1 properly speaking1 confined to the first branch alone4 ,if the ,archbishop decides against the ,bishop1 the latter then appeals to the ,crown to prevent the ,archbishop from improperly infringing on his ,diocesan rights1 and if the ,crown1 upon argument before the ,delegates or ,privy ,council1 think the ,bishop right they will by their judgment overrule the ,archbishop and prohibit him thereby from proceeding4 ,on the contrary1 if they think the ,bishop wrong1 they will leave the ,archbishop to proceed to the second branch1 the consequence of his decision1 and will direct him to act at his discretion in instituting the ,clerk1 if on examination he finds him fit4 ,or suppose the ,archbishop1 agreeing with the ,bishop1 has dismissed the ,clerk's suit in his ,court4 ,the ,clerk then appeals to the ,crown1 and the ,privy ,council hear it4 ,if they think the ,bishop originally wrong in his refusal1 and therefore that the ,archbishop ought to have acted on his jurisdiction1 they order him to proceed so to do1 and he then proceeds1 as in duty bound1 to act as he would have done if the living were in the ,diocese of ,canterbury4 ,the ,privy ,council do not order the ,archbishop to institute as a mere ministerial act2 they have no jurisdiction to do that1 but they have a jurisdiction to compel him to exercise his ,archiepiscopal discretion in that case4 ,now the very nature and course of the proceedings shows that this is so4 ,the judgment is1 that 8the suit be remitted to the ,archbishop that right may be done40 ,this cannot mean an order to institute at all events4 ,the presentation itself is not officially before the ,privy ,council at all1 and consequently they do not judicially know of its existence4 ,the meaning of the judgment must therefore be1 that if presented 7and why not if fit also87 he be instituted4 ,and what does the ,archbishop in his court proceed to do upon this8 ,the first process is to summon the ,bishop to bring in the presentation1 which being ,,then and not till then1 before the ,archbishop1 he proceeds to exercise his discretion1 as to institution1 regularly4 ,now if this be not exercised by examination of the ,clerk1 these absurdities would follow4 #ast1 ,no provision would be made for heresy or crime committed between the examination by the ,bishop and the institution by the ,archbishop1 and yet this interval may be one of many months or years4 ,it would be obviously absurd to institute upon an antecedent supposed fitness1 instead of a fitness properly ascertained at the time of institution4 ,the solemn words of institution1 accipe curam meam et tuam1 would forbid such a conclusion4 ,besides1 if the sufficiency of the examination before the ,bishop is to be the sole criterion1 in what way is an examination merely frivolous1 one which neither shows affirmatively nor negatives heresy or unfitness to be dealt with8 ,such an examination would be indeed a perfectly sufficient warrant for the exercise of the ,archbishop's jurisdiction1 but would be manifestly insufficient for his institution of the ,clerk4 ,indeed it might even open a door to fraud4 ,for a ,bishop knowing a man presented to him was a heretic or ignorant person1 and being desirous to favour him1 though not willing himself to take the odium of institution1 might reject him on some frivolous or insufficient pretence1 and so deprive the ,archbishop of all discretion in the matter1 and throw on him the disgrace of instituting a manifestly insufficient clerk4 ,again1 another absurdity follows1 if the law be not as above suggested4 ,there is no authority for saying1 that where the ,archbishop on a presentation really to himself rejects the clerk1 the latter has any remedy by duplex querela at all4 ,it seems probable1 therefore1 that here the ,archbishop's decision is final2 but1 if the judgment of the ,privy ,council1 be a judgment ordering institution1 it would follow that though the judgment of the ,archbishop alone was final1 his judgment when confirming that of the ,bishop was not so4 ,but1 on the other hand1 if the judgment of the ,privy ,council really be only that the ,archbishop shall exercise his jurisdiction1 the two cases become parts of one uniform and harmonious system4 ,it is some confirmation of these views also1 that in the case of a ,quare ,impedit1 when the fitness of a clerk is alone the question before the court of law1 which it sometimes is1 it is pretty clearly laid down that the fitness in issue before the court1 is not the fitness at the time of the refusal by the ,bishop1 but the fitness at the time of the certificate of the ,archbishop4 ,it is this which is to decide the case4 ,and this only takes place if the clerk be living1 which circumstance clearly points to the conclusion that the ,archbishop is to examine him personally and de novo1 that he may be enabled to make that certificate4 ,i therefore1 for all these reasons have come to the conclusion that after all the only effect of the judgment of the ,privy ,council was to send ,mr4 ,gorham before the ,archbishop of ,canterbury1 in order that he might judge1 after examining him at his discretion1 whether he1 the ,archbishop1 thought him a fit person to be instituted to the living of ,brampford ,speke1 and in that event only to institute him as on a presentation to himself4 ,now1 if this be so1 what ecclesiastical rule is violated by this proceeding8 ,ought not the ,crown1 as governing all estates of men1 ecclesiastical or civil1 within the realm1 to decide on the one hand whether an ,archbishop infringes the ,diocesan rights of a ,bishop1 or on the other hand whether he refuses to give redress to a ,clerk unjustly oppressed by the ,bishop8 ,ought not the ,crown to prohibit the ,archbishop from proceeding in the one case1 and to order him to act in the other2 in the latter case however1 not directing him what to do when he exercises this jurisdiction8 ,thus1 if the ,chancellor dismisses a bill1 and on appeal the ,house of ,lords differ from him1 they order him to proceed1 but they do not direct him to decide in favour of the plaintiff4 ,here the ,privy ,council order the ,archbishop to proceed2 but they do not direct him to institute ,mr4 ,gorham4 ,this is my view of the case4 ,if ,i am right1 however1 ,i may as well add1 that the most improper person to have been present at the argument was ,his ,grace of ,canterbury1 either as assessor or judge4 ,for it was his duty to take no part till the question of his jurisdiction was first settled4 ,before ,i conclude this letter1 ,i will add a few words on the ,royal ,supremacy1 a subject much talked of in these days1 and often as it seems to me by persons who do not well understand its real import4 ,properly understood1 there is nothing in it which need give any alarm to the most sensitive ,churchman4 ,the ,king is with us the ,supreme ,head of the ,church4 ,but in what sense1--and what are the limits of this his ,supremacy8 ,he is ,supreme ,head of the ,state also--and the ,oath of ,supremacy puts both on the same footing4 ,now to understand this properly1 it will be well to divide this ,supremacy both in ,church and ,state into its two main branches--executive and legislative4 ,unless we do this1 we shall fall into much error4 ,but before we discuss this question1 let me call your attention to the important negative words of the ,article and ,oath of ,supremacy1 which in fact were the main reasons for framing it1 and constitute its most important provision4 ,we thereby deny all ,supremacy1 whether spiritual1 ecclesiastical1 or temporal1 to any external power4 ,in this all true members of the ,church of ,england agree without any restriction whatever4 ,i regret1 however1 to be obliged to add that some of our soi-disant members seem disposed 7as extremes are always found to meet7 to attribute an absolute ,supremacy to the ,crown--as absolute in fact as that claimed by the ,bishop of ,rome over his subjects--and if established1 as fatally leading to the corruption of our beloved ,church1 as it has already done to the corruption of the ,church of ,rome4 ,if any one person is to exercise absolute power in the ,church of ,,christ1 it matters not much whether it be the ,king or the ,pope4 ,indeed1 if antiquity is to decide it1 the latter would have the better claim4 ,but both are contrary1 as ,i believe1 to primitive antiquity4 ,let us proceed then to examine in detail the true executive and legislative ,supremacy of the ,crown in this country4 ,the executive supremacy of the king over the ,church gives him full power1 as our ,article expresses it1 of 8restraining with the civil sword all wrong doers10 but no power of interfering in the ministrations of the ,church4 ,it is well put thus by the #beth of ,henry ,,viii41 c4 #ba1 s4 #ai3 8,provided always1 ,that this ,act1 nor any thing or things therein contained1 shall be hereafter interpreted or expounded1 that your ,grace1 your nobles and subjects1 intend by the same0 7i4e41 by denying the ,pope's power in ,england71 8to decline or vary from the congregation of ,,christ',s ,church in any things concerning the very ,articles of the ,catholic ,faith of ,christendom1 or in any other things declared by ,holy ,scripture and the ,word of ,,god1 necessary for your and their salvations1 but only to make an ordinance by policies necessary and convenient to repress vice1 and for good conservation of this realm in peace1 unity1 and tranquillity1 from ravin and spoil1 insuing much the old ancient customs of this realm in that behalf2 not minding to seek for any relief1 succours1 or remedies1 for any worldly things and human laws1 in any cause of necessity1 but within this realm at the hands of your highness1 your heirs and successors1 kings of this realm1 which have and ought to have an imperial power and authority in the same1 and not obliged in any worldly causes to any other superior40 ,these are plain and true words4 ,no doubt ,king ,henry and his successors claimed and exercised the complete executive power and judicial superintendence of the ,church3 in fact1 all executive power1 with one exception1 mentioned in the ,article on the supremacy1 and which in a lively manner shows the limits4 ,the ministry of ,,god',s ,word and the ,sacraments is a part of the executive duties of the ,church4 ,these the ,article expressly excepts1 showing that even in executive matters the king does not interfere where they are purely spiritual4 ,he claims to appoint the ,bishops2 but this is1 ,i conceive1 according to the truth of the law1 subject to examination as to fitness in some specific points and confirmation by the ,church in the ,archbishop's ,court4 ,if the ,archbishop or the guardian of the spiritualities refused this confirmation1 or refused to consecrate1 or do any other ecclesiastical act1 wilfully and unjustly toward the ,bishop elect or towards any other persons entitled to have these ecclesiastical acts performed1 the king1 through his chancellor1 was by a commission of delegates to examine judicially into the question of right1 and if after deciding the question against the ,archbishop and enjoining him to do the act1 that prelate still refused to obey1 the king punished him for his disobedience1 but did not himself proceed to do the act4 ,he then deputed the power of doing it to two other spiritual prelates1 to be specially named for the purpose4 ,this jurisdiction is even now occasionally exercised when upon the accidental incapacity of the ,archbishop a commission is granted by the ,crown to ,bishops to consecrate a ,bishop elect here1 or as it may be now1 in the colonies4 ,for the act being spiritual1 seems to have been thought ultra vires of the king himself4 ,so little did the king ever dream of exercising personally or by lay judges what some ill-informed people have since ascribed to him1 pontifical or spiritual power4 ,the executive ecclesiastical power1 however1 he did claim and did exercise4 ,but this also he did only in the same way as he proceeds in civil matters4 ,he acted not personally1 but by deputed judges4 ,he determines ecclesiastical matters by ecclesiastical judges1 as he does civil matters by civil judges4 ,in both it is done by the law1 a rule by which the king as well as the ,church is bound4 ,if it be a case of heresy1 these judges are to ascertain what the law of the ,church calls heresy and how it is to be punished4 ,if they find the law1 they apply it to the facts4 ,but they do not make or pretend to alter the law3 they have no power to do this4 ,if they made as well as administered it1 no man would be safe for a moment4 ,to live subject to that would be to live under a pure despotism4 ,the only ground of complaint here is1 if any1 that unskilful and unlearned judges may be appointed4 ,that is1 if well founded1 to be cured by appointing better4 ,if laymen1 from their course of reading and study or for any other reason1 are unfit to be judges1 then ecclesiastics should be selected for this purpose1 as in former times they were1 there being many instances in the books of ,bishops sitting as delegates on ecclesiastical appeals4 ,but the theory of the law is right1 as it stands1 as to the executive supremacy of the king4 ,next we come to his legislative supremacy1 which is not expressly touched at all by the oath of supremacy or the article on that subject4 ,but it is understood no doubt in both4 ,here the supremacy is simply of order and rank1 with one exception only 7common to both civil and ecclesiastical supremacy71 the power of the initiative as well as the veto4 ,no law can be discussed in convocation at all without the initiative of the ,crown first granted4 ,this prerogative exists1 but is not universal1 in civil matters4 ,in them it is confined to particular subjects when brought before the parliament4 ,the difference however is one of degree and not of principle4 ,subject to this exception the king has the very same and no greater power in convocation than in parliament4 ,he has no power of making or changing laws in either1 but he has the power in both of preventing by his veto any change from being made4 ,by his coronation oath he binds himself expressly to observe this and all other privileges of the ,church faithfully1 and it would be a clear breach of that oath to assent in parliament to a law altering the doctrines or ritual of the ,church1 unless such alteration had been previously submitted to convocation for their assent1 or the law itself made expressly subject to their subsequent approbation4 ,both parliament and convocation must unite as they did when the ,act of ,uniformity was passed1 to make according to our constitution in ,church and ,state such a law4 ,it is probable indeed that the discipline of the ,church also falls within the same rule1 and it may be well doubted1 whether in propriety the ,crown or the ,bishops should ever assent to such bills unless subject to the same assent of ,convocation1 and in the late somewhat arbitrary powers given to the ,bishops over ,curates1 it is at least clear that it would have been but just if such powers had in some way been submitted to the judgment of the inferior ,clergy in their lower ,house of ,convocation1 before they passed into a law4 ,no doubt ,parliament is unlimited in its power of legislation1 but the true1 and ,i trust real1 security that in cases like these1 it shall be obliged to proceed constitutionally1 is the ,coronation ,oath of the ,king1 which binds in these cases his conscience as to the exercise of his parliamentary veto4 ,here then is the real legislative ,supremacy of the ,king over the ,church--as unobjectionable in reality1 if exercised faithfully1 as any law can be4 ,but there is an evil no doubt--and the real evil is this4 ,the legislative power of the ,church since ,bishop ,hoadley's days has fallen into complete abeyance4 ,i do not stop to inquire whether there were not then good reasons for suspending it4 ,probably there were4 ,but it is a necessary branch of our constitution1 and the ,crown ought to be advised occasionally to suffer the ,convocation to deliberate on ,church matters4 ,there is no fear of abuse so long as the ,crown retains the initiative as to all the subjects of debate4 ,but no system of law can well stand which is not accompanied by a power of amending from time to time those errors to which all human institutions are liable1 and which from changes of manners and habits become in time more and more apparent4 ,a qualified employment of the ,church ,legislature is essential to the healthy action of the ,english ,church4 ,let me take the ,gorham controversy as an instance4 ,there was a decision of five ,judges and two ,archbishops1 with one ,judge and the ,bishop of ,london dissenting1 which overruled the opinion of the ,bishop of ,exeter1 the diocesan1 and that of the ,judge of the ,arches1 ,sir ,herbert ,jenner ,fust4 ,surely that was a case in which the expressions of the written law were so doubtful1 that a declaratory ,act of ,convocation to avoid such doubts in future1 was1 to say the least of it1 very desirable4 ,again1 with respect to discipline4 ,would it not be reasonable and decent at this moment for the ,crown to ask the advice of the whole body of the ,clergy as to the proper limits of ,episcopal power over themselves1 and the best mode of enforcing discipline and faithful obedience to the ritual of the ,church8 ,would not this be far better1 to say the least of it1 than the late somewhat irregular proceeding of the majority of the ,bishops in giving opinions without any jurisdiction to enforce them1 and offering advice which every one is at liberty to follow or reject at his pleasure8 ,and why might not her ,majesty have been advised instead of sending a letter respecting ,lord ,ashley's monster petition to the ,archbishop of ,canterbury1 to have referred that petition in a constitutional manner to ,convocation1 whose decision would have been of real value1 inasmuch as it would have bound the ,clergy by laying down a proper rule for their obedience8 ,and how would ,parliament be the worse for a little information on such subjects from those best acquainted with their details8 ,the absence of this proper action of the ,church renders indeed the presence of the ,bishops in the ,upper ,house1 which impedes their usefulness as residents within their respective dioceses1 imperatively necessary2 and ,i will add1 that until this is altered1 the presence of the inferior ,clergy in the ,lower ,house ought not to have been prohibited1 as it was within our own recollection4 ,perhaps however it would be better for both if they confined themselves to a healthy action in ,convocation1 and if both ,houses consisted of laymen alone1 and as a substitute for ,ecclesiastical ,peers or ,members adopted as a standing order that no laws1 relating to the doctrine1 ritual1 or discipline of the ,church directly1 should be passed until after or subject to the approval of ,convocation4 ,in this way both ,bishops and ,clergy would give to ,csar1 by abstaining from political questions altogether1 the things of ,csar1 and to ,,god1 by retaining in spiritual matters the complete power of preventing all improper alterations in the ,church--the things of ,,god4 ,on the other hand1 the ,parliament would not abdicate its supreme functions of legislation4 ,the laity1 for it is the laity whom the ,parliament 7the ,king1 ,lords1 and ,commons7 represents1 have ,i apprehend right to prevent any changes in the established laws of ,church in all matters whether of doctrine1 discipline1 or ritual--and the sole right of enforcing1 by the civil power1 all the injunctions of the ,church4 ,even the right of assenting to the calling ,councils of the ,church--and of allowing their decrees was not taken from the lay members of the ,church1 and was exercised by the supreme head of the state in their name4 ,in this country it is exercised as to executive matters by the ,king1 as to legislative matters by the ,king1 ,lords1 and ,commons in ,parliament4 ,long may it continue to be so exercised4 ,the confusion of these two separate powers of ,church and ,state in the ,papacy has been1 ,i believe1 the main cause of its unhappy corruptions4 ,but this is too wide a field to enter upon1 and requires a longer letter1 and an abler correspondent4 ,believe me1 ,my dear ,,lord1 ,faithfully yours1 ,a ,,layman4 99 99 99 99 99 99 99 99 99 99 ,,printed ,,by ,,joseph ,,masters1 ,,aldersgate ,,street1 ,,london4 ,,footnotes4 #d ,this probably explains the saving of the jurisdiction of the ,church of ,canterbury in the #beth ,henry ,,viii4