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the chartered privileges of a royal university. And, more especially, as, from what I have thus stated concerning the quality and functions of an Advocate in these public Ecclesiastical Courts of Justice, I conceive it will appear, that the rules for his admission are already laid down by the canons of the Church and by canonical writers; and that this chartered Society, in attempting to make the admission into these courts dependent on the discretionary choice of the existing members of that Society, assumes a power not delegated to it, either by its charter, by the canons of the Church, or by the law of parliament; and that an endeavour is thereby made to blend two matters totally separate and distinct the one from the other.

Concerning that charter, by the means of which this College of Civilians is now become a Body Corporate, I shall observe to your Lordships, that in the year 1768, His present Majesty was graciously pleased, in consideration of the devotion professed by the learned Judges and Advocates, exercising Ecclesiastical Jurisdiction in these different courts, to the study of the Civil and Canon Law, to grant (as I have already stated) a Charter under the Great Seal, incorporating this Society under the name and style of "The College of Doctors of Law exercent in the Ecclesiastical and Admiralty Courts."

By a clause in this charter it is ordained and appointed, that "the Society shall consist of a President, who shall be the Dean of the Arches for the time being, and of such Doctors of Law, who shall be Judges in those courts, or admitted to practise therein as Advocates, by the rescript of his Grace the Archbishop of Canterbury."—It is also by another clause ordained, "that they shall have a common seal, &c. &c. Also to sue and be sued, implead and be impleaded, &c. &c.”— Also, "that no one shall be duly qualified to be a candidate for admission as a member or fellow of this Society, who has not regularly taken the degree of Doctor of Laws at one of the universities of Oxford or Cambridge, and been admitted an Advocate of the Court of Arches, &c. &c."-Also, "that the Society shall have a power of making such bye-laws and regulations as shall be judged necessary; provided they are honest and reasonable, and not repugnant to the law of the land.”Also, "that nothing in this charter shall be construed to affect the antient privileges of this Society, nor the rights of his Grace the Archbishop of Canterbury, nor of the Judges in His Majesty's other courts."-By a further and last clause it is provided also, "that if any abuses or differences shall arise in the government or affairs of the Society, by which the constitution, progress, and improvement of the same may be hindered, his Grace the Archbishop of Canterbury, the Right Honourable the Lord Chancellor, the Lord Privy Seal, and the two Secretaries of State for the time being, shall be Visitors of the Society, with full powers and authority to them, or any three or more of them, from time to time, to compose and redress any such abuses or differences." Such are the powers and privileges granted to this Society by their royal charter.-I humbly submit it to the wisdom of your Lordships, that whatever bye-laws they may consider themselves. empowered to make, to limit and restrain the privilege of admission into their chartered Society, still they have no power communicated to them by their Charter of regulating and restraining the admission into His Majesty's public courts of justice, and, by interfering in matters already regulated and established by the Canons of the Church and by the Law of the Land, to exclude any one duly qualified in the form and manner prescribed by those Canons, and by the Law of Parliament.

I have thus shewn, as I trust, to the satisfaction of your Lordships, that the Clergy are not, by any existing law, excluded from exercising those canonical and ecclesiastical offices which the Ghurch of England has appointed for carrying on her spiritual Discipline: and I therefore deem it unnecessary to state the grounds whereon I should, otherwise, have proved any such restraining law to be inapplicable to my case, as was indeed so justly and so liberally acknowledged by the Most Reverend Primate, at the time when a prohibitory Canon was, by his Official Principal and VicarGeneral, declared to exist. It will, however, I am sure, appear to your Lordships as somewhat singular, that this Canon of the Church should have been neither produced nor pointed out by those spiritual Ministers of his Grace. I shall yet venture to observe to your Lordships, as his Grace

will recollect I also did to him, that the resolution passed by the House of Commons, in the caseof Mr. Rushworth, (who had also laid aside the character of a Deacon) was such as to give a very strong sanction to any other person who might thenceforward take the same step.

In the year 1785 the honourable House of Commons declared Mr. Rushworth, who was petitioned against on the ground of his having once taken these orders, to be legally and duly elected. As three several cases were at that time cited to the House from their own Journals, wherein the return of a clergyman to a seat in Parliament had been declared by the House illegal and void, and new writs had in those cases been ordered; and in one of these cases, so great a breach did the House conceive the return of a clergyman to be of the privileges of that House, that the House would have fined the borough, but for its poverty. I conceive, therefore, that, when in the face of former decisions cited to the House that a clergyman, as such, was ineligible, the House decided that Mr. Rushworth was duly elected, it thereby formally and positively decided that Mr. Rushworth was no longer a clergyman. A very powerful sanction was, I conceive, hereby given to the generally prevailing popular opinion, that the office of a Deacon was merely "a step to the ministry," a tyrocinium or noviciate, from which the candidate was at liberty to recede and to return to a lay state, if any motives of conscience or other fair and honourable cause should restrain him from making the next and more important step to the sacred ministry itself.

And, my Lords, as touching the Act of Parliament, since passed, which declares the taking of Deacon's (as well as of Priest's) orders a ground of subsequent ineligibility to a seat in parliament; that Act goes not at all to contradict the principle laid down by the former resolution of the House of Commons in Mr. Rushworth's case; nor says one syllable as to the delibility or indelibility of the clerical character. Besides which, my Lords, whatever that Act (of 1801) may, by those who have not read it, be supposed to contain, either expressed or implied, on this head, it must, as. the Most Reverend Primate was himself pleased to declare, be considered as an ex post facto law in respect of my case.

*

Seeing, my Lords, that a strong principle of analogy must (as I conceive) be allowed to exist between the different offices of spiritual jurisdiction, I shall therefore beg leave to detain your Lordships a few moments, while I say a word or two on the canonical office of Diocesan Chancellor, which office is still, in some instances, held by the clergy; although this, as well as most of the other spiritual and holy offices, ordained by the Church for the "Welfare and Salvation of Souts," is now (I must admit) for the most part engrossed by the laity, who at least take care to receive the profits, whatever becomes of the awful and momentous duties of those sacred and spiritual offices held under the church of England. My reason for detaining your Lordships, while I submit a few words on this subject, is the assertion, respecting this canonical office, made by his Grace's spiritual representative the Judge of the Admiralty, at the same time as he was also pleased to declare my admission to the equally canonical office of an Advocate to be forbidden by the canons of the Church. That "spiritual person" did, my Lord, declare that they (meaning himself and his lay-colleagues) thought it a great grievance that this Ecclesiastical and Sub-episcopal office should ever, in any instance, be held by a clergyman. The same opinion being expressed in the work of another learned member, I conclude that this opinion may be considered as maintained and avowed by the Society. The learned Advocate speaks as follows: "The chief ministers of

* I am aware that, in the debate which took place in the House of Commons on the above-mentioned occasion, much declamation was exerted for shewing the EXPEDIENCY of attaching indelibility to every rank and degree of the clerical character. The drift of these declamatory harangues cannot escape any one who casts an eye to the monopoly carried on in Doctors' Commons, and the means it is necessary to have recourse to for supporting that monopoly. One Honourable Member, amongst other attic and sapient arguments, declared it to be alike impossible to unclergify a Clergyman, as it is" to wash a blackamoor white, or to restore her lost virginity to a deflowered maiden." A comparison intended (no doubt) by the Honourable Member as highly complimentary to the Clergy of the Church of England! The Legislature did not, however, see fit to enact any thing touching these points of recondite and abstruse casuistry, any more than it did concerning the indissolubility of the Deacon's clerical obligation.

state were ordered" (by King Charles I.) "to devise some fitting course for establishing all offices of ecclesiastical jurisdiction upon the Professors of the Civil Law. But the royal intentions in favour of the College were not carried into effect; and the grievance is at this moment unredressed."

Being myself, although not a member of the College, still one of the Professors of Civil Law, in whose favour His Majesty's intentions were so graciously manifested, I am fearful lest in expressing my dissent from the opinion thus maintained by the learned Society, I should incur the imputation of a perverse and captious disposition, and a wish to oppugn the validity of any exclusive privileges, which may be supposed to be vested in us as Doctors and Professors of Civil Law. To rescue myself from such an imputation, as also from any charge of temerity to which I might seem liable, I have recourse to the following testimonies :

"But it was thought a great stretch of the Queen's supremacy to give authority to lay visitors to proceed by ecclesiastical censures; and it was no otherwise excused than by another abuse, that it was no more than what was done by the lay-chancellors in Spiritual Courts."-Warner's Eccl. Hist. vol. II. p. 421.

"That which was chiefly condemned in these commissions, was the Queen's giving the visitors authority to proceed by ecclesiastical censures, which seemed a great stretch of her supremacy; but it was thought that the Queen might do that as well as the lay-chancellors did it in the Ecclesiastical courts; so that one abuse was the excuse for another."-Burnet's Hist. of Reform, vol. II. p. 371. "I leave the learned to enquire whether lay-chancellors in the Church had not their first rise and original from some such occasion as this, whilst Bishops deputed laymen to hear secular causes in their name, still reserving the proper spiritual and ecclesiastical power entirely to themselves.”Bingham, Orig. Eccl. vol. I. p. 117, 8vo.

"By the canon law, neither a layman, nor a parson in wedlock, could exercise this office of a chancellor or vicar-general, or any other ecclesiastical jurisdiction whatever, because (says that law) he is of another condition or profession."-Ayliffe, Pareg. Jur. Can. p. 162.

"It is therefore not impertinent here to insert, what principally those offences are, on the guilty whereof the law doth inflict this excommunication ipso facto; viz. 7. The exercise of ecclesiastical jurisdiction by any married clerk, or by any lay-person, in matters only and properly pertaining to the cognizance of the Church."-Godolphin, Repert. Canon, p. 628.

"Nullus clericus conjugatus bigamus, seu laicus jurisdictionem spiritualem quovismodo et qualemcunque exerceat, nec registrarius existat, nec a prælato minore quam episcopo ad hoc assumatur, aut assumens suspendatur, et se ingerens laicus excommunicetur, cunctaque per eum acta irrita sint et cassa."-Henricus Chichley. Lyndwood, Provinciale, p. 128.

"Note (by Lyndwood) that it appears that by the canons ecclesiasticke, none may exercise ecclesiastical jurisdiction, unless he be within the orders of the Church, because none may pronounce excommunication, but a spirituall person; and there it appears, that as well the register as the judge ought to be spirituall; but now by the stat. 37 Hen. VIII. a Doctor of Law, or Register, although he be a layman, may execute ecclesiastical jurisdiction."-Coke's Reports, vol. XI. p. 112.

"And such may bee laymen, according to the most moderate modern Decretis, though by the old canon law Vicarius Episcopi debet esse Clericus. And it is counted one of the rare insolent actions of the Popes, causas ecclesiasticas laicis delegare."-Calybute Downing. Disc. of the State Eccl. of this Kingdom in relation to the Civile, p. 41.

"Especially now since the lawes have ordered, that if they be not in sacred orders, they must be assisted by a surrogate, who is a minister, and hee is to pronounce sentence as principal judge."Calybut Downing, p. 38.

"If then our ecclesiastical officers were all in orders, as some of them are, then they could not with any reason except against them for laymen."-Id. p. 43.

* See a Catalogue of English Civilians.

"And that these which are now bishops' chancellours are the very self-same persons in office, that anciently exercised ecclesiastical jurisdiction under bishops, and were called ecclesiecdici, it may appear by that which Papias, an old historiographer, cited by Gothofred in his Annotations upon the foresaid law, Omnem, in the Code and title de Episcopis et Clericis, and upon the § Praeterea, writeth of them, who thus saith; That Ecclesiecdici, or Ecdici, were those that were aiders and assisters to the bishops in their jurisdictions, not astrict or bound to one place, but every where throughout the whole diocese, supplying the absence of the bishop, which is the very right description of the bishops' chancellours that now are."-Sir Thos. Ridley's View of the Civile and Eccl. Law, p. 156.

"That they were like to have a more speedy and better dispatch, and more indifferency before a judge of their own learning, than before a judge of another profession; for this is true, and ever hath been, and, I feare, ever will be unto the end, that is said in the Glosse, and is in common law, 'Laici oppido' semper infesti sunt clericis ;'—The clerks suits and quarrels should not be divulged and spread abroad among the lay-people, and that many times to the great discredit of the whole profession. Id. p. 157.

"Et post abrogatam Pontificis Romani authoritatem, pro conservando apud nos juris civilis studio, illud INDULTUM EST, ut legum Doctores possent deinceps jurisdictionem ecclesiasticam exercere licet non essent sacris ordinibus insisgniti et uxores duxissent, quod juris canonici institutis repugnabat." -Duck de Auth. Jur. Civ. p. 156.

"May lawfully execute and exercise all manner of jurisdiction, commonly called ecclesiastical jurisdiction, and all censures and coercions thereto appertaining, or in any wise belonging unto the same, albeit such person or persons be lay, married, or unmarried, so that they be doctors of the civil law, as is aforesaid."-Stat. 37 Hen. VIII. c. 17.

"Provided always, that this statute of non residence shall not in any wise extend, nor be prejudicial to, any chancellor or commissary of any archbishop or bishop."-21 Hen. VIII. c. 13.

Upon these authorities I venture, my Lords, to conclude, that a clergyman may exercise ecclesiastical jurisdiction, and that without giving cause of grievance or complaint to any one of the laity. It is, indeed; true, the canon law requires, that a person, to be competent, shall not only be a clergyman, but that he shall be skilled in the civil law: And on this ground, "Sutton, chancellor of the diocese of Gloucester, was, in the time of King James, deprived of his office by the ecclesiastical commissioners, because he was not (as ordered by the canons) read in the civil and canon law. And a prohibition being prayed for to stay the proceedings of the ecclesiastical commissioners, this was refused."-Ayliffe's Parerg.

"But of later days, when Dr. Jones, chancellor of Landaff, was libelled against for ignorance, prohibition was prayed and also obtained, on the foot of freehold; and when consultation was prayed, as in a case of mere ecclesiastical cognizance, and the prayer was supported by the precedent of Dr. Sutton, we are told, that the court inclined against it."-Gibs. Cod. Jur. Eccl. p. 987. 4 Mod. Rep. p. 31.

So far, therefore, from any cause of grievance or complaint having arisen to the laity, from the exercise of this ecclesiastical and canonical office by the clergy, I conceive, that if there is or has been any-where a source of grievance and a cause of complaint, it lies rather on the side of the Clergy, who might, I am humbly of opinion, in this, as in other instances, complain, in the words of Bacon, that the cyon over-ruleth the stock; and the stock is but passive, and giveth aliment but no motion to the graft :"-or in the language of the poet,

Nec longum tempus, et ingens

Exiit ad cælum ramis felicibus arbos,
Miraturque novos frondeis, et non sua poma."

Such are, my Lords, the grounds whereon I venture to maintain, and whereto I look for proof, that the chartered rights of a Doctor of Law lawfully create to exercise his profession in the church's spiritual courts, is in no wise limited or restrained by the church's laws.

It is, my Lords, in these laws as established by our ancestors, and as confirmed by the statutes of Hen. VIII. and Queen Eliz. that, I humbly conceive, we are to study the polity of our church, and the ordinances made for the regulation of its discipline. "Forma regiminis constituta olim fuit, ad conservationem doctrinæ Christianæ, non ad perturbationem reipublicæ; quæ, sine discrimine ipsius religionis, contingere vix potest."

By no means, with deference I venture to assert, can it be reconciled or rendered consonant with the spirit of British justice, that from these laws, remaining as the law of our church still in force, a principle should be drawn which is contained neither in their letter nor in their spirit, and that the principle (thus wrongly assumed) should be so applied as is now attempted.- -On the contrary, it will, I trust, to the wisdom and justice of your Lordships appear, that my claim as a Doctor and Professor of Civil Law, is a just and a founded claim; that, in right of this degree and qualification, I am, either as a clergyman (and as such both canonically and legally qualified) or as a layman, under the toleration granted by stat. Hen. VIII. to the laity, entitled to admission into these ecclesiastical courts as a "spiritual officer and minister," and into this chartered Society, as a member of the same.

Resting my claim and my cause, with implicit confidence in the high wisdom, and the impartial justice of your Lordships, I conclude this inadequate and imperfect Address in the words of one, as cited from another learned Canonist :

"Id submittens correctioni et determinationi tam Canonum Ecclesiasticorum, quam Statuorum, Jurumque Publicè Forensium et Secularium, et Cujuslibet meliùs sentientis, Protestans, quòd si in præsenti sermone de lapsu calami, aut inadvertentia, vel forte ex ignorantia aliqua jam scripsero, id præter intentionem scribere me contigerit: Si etiam aliqua scripsero, quæ errorem saperent, aut male sonarent, illa ex nunc revoco, et volo haberi pro non scriptis ; Determinationibusque Ecclesiæ Anglicanæ, et dicti Juris Forensis Oraculis semper et in omnibus volo stare. Et hanc Protestationem volo pro repetita haberi in quolibet Dictorum meorum, et etiam condicendorum, ut si reprobentur dicta, Actor non propter hoc reprobetur."

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