Power of convocation as to canons.-The convocation from the first assumed, as was natural, the power of making canons which would bind not only the clergy but all the public, the early notions of ecclesiastical jurisdiction being boundless, and such niceties as the moderns discover never occurring as practical difficulties to any of its members. But as civilisation advances, and a free press develops powers and forces which synods and bishops cannot seriously control, doubts have long surrounded the position of convocation as a source of ecclesiastical legislation, more especially in its relations to Parliament and the Crown. Some have held, that before the time of Henry VIII. the convocation could make canons and enforce them freely without any consent of the Crown. The first clause of Magna Charta declared, that the Church of England shall be free, and shall have all her liberties-which, Coke says, meant, that ecclesiastical persons should be freed from encroachments and usurpation, such as purveyance, tolls and customs, compulsory service of temporal offices, and as soldiers. Others have said that this meant freedom from all papal interference. While it has again been said, that it meant freedom to elect bishops and hold synods, to reform the liturgy, and act without interference from the secular courts. At first great looseness prevailed in distinguishing one jurisdiction from another. But the statutes of Provisors and of Præmunire tended to clear up the subject. It was held in the time of Henry VII., that a suit

the State by their own votes, and would submit to be taxed by the House of Commons.-5 Burnet, Own Time, 37. And a statute of 1665 for the first time taxed both clergy and laity alike. In 1700 the Lower House of Convocation refused to be dissolved by the archbishop, and claimed to sit till they were prorogued by their own prolocutor. They set about censuring books as of dangerous consequence. The Upper House denied the power of the Lower House to censure any book. The disputes lasted five years, and the Convocation was dissolved in 1702.-1 Calamy's Abr. 554-618. In 1717, on the occasion of Bishop Hoadley preaching a sermon which a committee was appointed to inquire into, the convocation was prorogued for six months, and had not been since summoned till a very recent date. -2 Hallam, C. Hist. 395. WARBURTON said "their assumed right to censure books would do no good, and that when convocation gave up the old right of taxing themselves, they gave up the right of meeting and debating." 1 2 Inst. 3. 3 25 Ed. III. stat. 6.

2 Barringt. stat. C.

3

in the Ecclesiastical Court for a temporal cause was a ground of præmunire, as for example, to sue there for a debt or for forgery of a will. And the fact, that the root of ecclesiastical jurisdiction is in the Crown makes no difference in that respect.2 The statute, 25 Henry VIII. c. 19, at last enacted, that no canons should thereafter be promulgated or enforced by convocation unless the king's writ had been first issued to hold the convocation, and also his licence to make and enforce the particular canons, and that until a revision of the existing canons and constitutions these should, if not repugnant to the law, remain in force till the commissioners should revise them. Coke said this statute was little more than an affirmance of the previous law. By this act of submission, which put an end to any kind of legislation by convocation without the king's licence, the existing canon law was to be reviewed by a commission of thirty-two persons, half lay and half clerical.1 The commission of Henry VIII., however, never completed their revision so as to receive the king's assent. And though a like commission was revived by Edward VI. and drew up a reformatio legum, that also never received the royal assent.5 The judges were said in the time of James I. to have met and held, that the king may without Parliament make ordinances and institutions for the government of the clergy, and may deprive them if they do not obey. But this was an extrajudicial opinion, and it was elsewhere laid down two years later, that the king could not change the ecclesiastical law. The convocation in the time of James I., however, again met and revised canons, which in 1603 received the royal assent. These canons of 1603 without doubt bound the clergy, and the Uniformity Act, 14 Charles II. c. 4, did not repeal them. It merely did not affirm them; yet every clergyman is bound by his oath to obey the canons.s And Lord Hardwicke assumed that the canons of 1603 did bind the clergy. And Holt, C. J., expressly held, that a clergyman could be deprived for disobeying a canon which had been made by convocation.10 The ecclesiastical judges have long been inclined

1 3 Inst. 120. c. 19.

19.

2 Ibid.

4 25 Hen. VIII.

3 12 Rep. 72. 5 2 Burnet, 197; Collier, 326. 6 Moor, 755. 7 12 Rep. 9 Middleton v Croft, 2 Atk. 650. 10 St. David's v Lucy, L. Raym. 449; Carth. 485. In 1640 the

8 28 Parl. Hist. 130.

to treat the collection of provincial constitutions collected by Lyndwood as if it had been enacted by Parliament. Those canons are avowedly collected not only from our provincial constitutions and canons, but from the writings of eminent persons without much nicety of definition.1 And Hale said that there was no great harm in admitting the customs of ecclesiastical persons, for they might well be treated as of equal weight with other customs or usages.2

Power of convocation to make new canons.—That the bishop should occasionally call his clergy together to consult about their common interests and duties was natural, and that an archbishop should call his bishops together with some of the clergy was equally natural, and required no authority or precedent to establish the fact, any more than that the members of any other profession should so meet for like objects of their own. But what they could do when thus meeting has probably not been accurately appreciated. The canons which they made might, in the eye of the law, be nothing more than the resolutions and opinions then current, and containing views and practices which were thought to be the best. And as all the clergy were bound, and still are bound, to obey the bishops, at least within certain narrow limits, and none could be instituted into the benefices of the Church without promising such an obedience, and being subject to deprivation and other punishments for disobedience, canons seem one mode of influencing the clergy. Nevertheless, as the Statute of Uniformity fixed the range of canons and all other restrictions on the clergy, no power but Parliament can now effectually alter the situation even of the clergy. And beyond the clergy the canons could have no legal effect, for no legislative power ever belonged at any time to the convocation merely as such. It was neither a court nor a corporation. It is true, the common law absorbed from convocation enacted canons and exasperated the public, imposing on the clergy the et cetera oath so as to bind them to make no alteration in the government of the Church by bishops, deans, archdeacons, &c.-2 Hallam, Const. H., c. 9. In 1694 the convocation made a claim to meet when Parliament met, without any royal licence, and this view gave rise to controversies not yet ended.—Lathbury, Convoc. 343.

1 Kemp Wickes, 3 Phillim. 276.

2 Hale, MSS., Middleton v Crofts, 2 Atk. 669; Per Tindal, C. J., R. v Millis, 10 Cl. & F. 678.

time to time, some of the canons, not only of convocation but of the general councils of foreign churches. These, however, became part of our law, solely by virtue of their being so appropriated, acted upon, and enforced, either by the temporal courts or by the ordinary ecclesiastical courts which were equally part of the law of the land. Jurisdiction, in ancient times, was subdivided, and the temporal courts disposed of the great mass of litigation, while the ecclesiastical courts also had a large share which was once conceded to them, though it has been since greatly reduced. But whether the temporal or the spiritual court adopted and enforced any particular canon, it was this very circumstance, that it was so adopted and acted on, which gave to such a canon all its force. The convocation had no inherent power of its own to make any canon or bye-law which could bind others than the clergy. And even the power to make canons with this limited authority began to be found capable of abuse and to lead to confusion. And the statute of Henry VIII., as we have seen, took away altogether the power of convocation to enact and enforce canons, constitutions, or ordinances, by whatever name they should be called, or even to meet as a convocation without the king's writ authorising them to meet, and the king's licence specially authorising them to make and execute canons. The king's special authority impliedly prescribed the subjects on which canons could alone thenceforth be lawfully made. Ever since then Parliament has intervened and can alone alter the liturgy and laws of the Church. Thus, even so far as the binding force of new canons could touch the clergy, the king's licence was necessary thenceforth. But even with the king's licence it did not follow, that the clergy either in a convocation or under any other name, could alter the ceremonies, or rights and duties of the other clergy. As these were all defined by the Statute of Uniformity so far as Parliament thought fit to define them, the Parliament which fixed them can alone now alter them. Though the convocation used to meet with the same regularity as Parliament and was a convenient mode by which the clergy imposed a tax upon themselves so as to be on the same footing with the laity, this practice was discontinued after 1665 as inconveniently keeping up a distinction

14 Burnet's Own Times, 508.

C C

between the clerical and lay professions which never could be justified. As the clergy are protected by the same laws as the laity, no reason could be rendered for singling out them and their property as objects for a separate process of assessment.1

Convocation as a means of checking heresy.—The other ground on which Convocation has been viewed is the part it fulfils in the constitution as dealing with heresy. Sir B. Shower, or the author of The Letter to a Convocation Man, said that Convocation was needed to give a check to the further proceeding of loose and pernicious opinions and to remove scandals; and that Convocation was an ecclesiastical court as essential to our constitution as any other law, and the king had no right to withhold his summons calling upon it to meet with the same regularity as Parliament. And it has been urged that Convocation is still, or ought to be, notwithstanding the statutes, the supreme ecclesiastical court in matters of doctrine. It has been urged that the convocation at most only conceded to Henry VIII. and Elizabeth so much of the prerogative of the Crown as had been arrogated by the Pope, but that it did not concede the right of the Church to hold general councils for the reformation of the Church and for the determination of matters of faith, and though Convocation agreed to sit only with permission of the Crown and not to enforce its canons without the Crown's consent, this did not imply that the power came from the Crown any more than that Parliament itself derived its motive power from the same source. But whatever may have been deemed to be the powers of Convocation in ancient times, it cannot be doubted that Parliament has now the inherent power to alter any canons of the clergy without consulting

3

1 Edw. I. had summoned the clergy along with the laity to the national assembly in 1296. 2 Wilk. Conc. 240; 2 Spelm. 428. The clergy had taxed themselves separately from the time of Edw. I. till 1666.-3 Stubbs's Const. H. 340. The Crown however has in modern times issued a writ to Convocation to meet and alter the subscription canons and the canon about sponsors; and two canons on these subjects have been substituted for the old. And on the advice of Convocation, Parliament has sanctioned a new lectionary.-2 Phillimore's Eccl. Law, 1936.

2 Joyce, Civil Power in Church. 5 Gladstone's Glean. 194.

3 Pusey, Suprem. 163;