and tranquillity of the established church that the convocation was finally prorogued in the year 1717. We have gone thus far into the legal history of the convocation, because it is dormant only, not extinct, and might at any time be resuscitated in such manner as it existed formerly by virtue of the queen's writ. Yet it is difficult to conceive for what useful purpose a convocation could now be summoned. They could not escape the taxes assessed upon them by the parliament: if they should choose to vote additional supplies, and the vote should be assented to by the king, yet it would now be obviously illegal, according to the interpretation before given to the Act of Submission, as being contrary to the custom of the realm. In matters of church discipline and doctrine, it is clear that a council of the prelates, to whose authority in such matters their inferior clergy are bound to defer, would be the most fit to determine such questions as might arise. Experience has sufficiently shown that the constitution of a double house is altogether ill adapted for such a purpose; and that in any attempt to settle a controversy, the two houses of convocation, by coming to different conclusions, might probably increase rather than remedy the evil. In the making of fresh canons, their power would be found much more limited, even than when they last met, by the various acts of parliament affecting ecclesiastical matters which have been passed since that time, and especially by the powers given to the ecclesiastical commissioners. In fact, the whole of the power which the convocation once exercised appears now to be transferred elsewhere, and to be capable of being exercised by other parties in a more full and complete manner. Should a convocation now attempt the enacting of canons, such an attempt would be in practice as useless as it would be difficult in point of law; and it is scarcely possible but that it would mischievously interfere with other powers which have been conferred by statute, or grown up by custom, in the interval since the convocation has been discontinued.

CHAPTER IV.

OF THE GOVERNMENT AND DISCIPLINE OF THE

ECCLESIASTICAL BODY.

Restricted pow- IN our last chapter we have spoken of what in times past might have been considered the legislative council of the

ers of the con

vocation.

ecclesiastical body. But however these councils may have taken upon themselves, at times, to condemn particular opinions, it does not appear, as we have already seen, that they legally had, or in fact ever exercised, any power or authority to admonish, suspend, or deprive, or in any manner to punish the individual members of their body.

For all immoral conduct, irregularity in discharge of duty, for preaching or maintaining false doctrines, and for all those various offences, ecclesiastical or other, which we shall notice in the course of this work, every ecclesiastical person may be called to account by his ecclesiastical superior.

The ecclesiastical superior here spoken of is usually Ecclesiastical termed the ordinary; and he, whether archbishop, bishop, courts. or archdeacon, has his peculiar ecclesiastical court of justice, for the hearing and determining of matters and causes of ecclesiastical cognizance within his jurisdiction. But into the history and present state of those courts, it is not thought advisable here to enter; the constitution of these courts will probably soon undergo a considerable change, and the existence of many of them will be abolished: and so far as our present subject is concerned, their authority has been superseded by the act for the better enforcing church discipline, which we shall presently have to men

tion.

men, as such, are

c. 86.

The course of proceedings in these courts in the correc- All proceedings tion of persons ecclesiastical was tedious and unsatisfactory, against clergyand in the year 1840 there was passed an act of parlia- to be according ment for the better enforcing church discipline, by which to the provisions all other modes are superseded, and by which all proceed- of 3 & 4 Vict. ings at the present day, and for the future, are and will be regulated. For by that act it is expressly declared, that no criminal suit or proceeding against a clerk in holy orders of the United Church of England and Ireland, for any offence against the laws ecclesiastical, shall be instituted in any ecclesiastical court, otherwise than is enacted or provided in that act."

instance.

In every case of any clerk in holy orders of the United Commission to Church of England and Ireland, who may be charged with issue in the first any offence against the laws ecclesiastical; or concerning whom there may exist scandal or evil report, as having offended against the said laws, the bishop of the diocese, on the application of any party complaining thereof, or if he so think fit, of his own mere motion, may issue a commission under his hand and seal to five persons, of whom one shall be his vicar-general, or an archdeacon or rural a 4th Inst. 388; Godol. Ab. 83.

e Sect. 23.

b 3 & 4 Vict. c. 86.

All kinds of

offences may be thus inquired into.

What do not contitute offences.

dean within the diocese, for the purpose of making inquiry into the grounds of such charge or report.

d

Offences against the laws ecclesiastical here mentioned would seem to include every offence which could possibly be committed by an ecclesiastic, whether of criminal or immoral conduct, or of maintaining false doctrine, or of irregularity in the discharge of his duty. So that whether the charge be that of felony, or of drunkenness, for example, or other immorality, or of improperly performing the marriage service, refusing to bury or baptize, publishing doctrines in derogation of the book of common prayer or its contents, &c., the mode of proceeding is in every case the same; and this preliminary inquiry is in the first instance. to be made into the truth or falsehood of the charge. Nor would a conviction in a criminal court, as it seems, supersede the necessity of first issuing the commission.

Here, however, it may be observed, that offences against the laws ecclesiastical are such only as may be known and defined; that is, it would not be in the power of any bishop to make any new law or ordinance to be observed by the clergy of his diocese, disobedience to or disregard of which would constitute an ecclesiastical offence. The bishop has the general superintendence of the morals of his clergy; and for any immoral conduct they may be punished by him under the provisions of this act. But the case would be altogether different in respect of matters of ecclesiastical law. In these the office of the bishop is that of a judge; he may enforce the existing law, but he cannot make a new one, much less exact obedience to it. For the clergy, although bound to obey their diocesan, so long as he acts according to law, owe a still higher allegance to the laws of their country, and would be bound to disobey their diccesan, if he should command any thing contrary to the general law. And so in that variety of matters as to which there exists no positive law, the bishop would be equally unable to make one for his diocese or the archbishop for his province which it would be any ecclesiastical offence to disobey. Nor does there now exist any method by which laws could be made binding upon the clergy either in matters civil or ecclesiastical, except by the authority of parliament. And even should the convocation be reassembled, it will be seen from the last chapter how difficult, if not impossible, would be any attempt to exercise such an authority.

d Sect. 3.

e See Middleton v. Crofts, 2 Atk. 650, and the whole judgment there pronounced.

It is here suggested that possibly it might be advantageous to the peace of

the commission.

A notice of the intention to issue the commission under Preliminaries the hand of the bishop, containing an intimation of the before issuing nature of the alleged offence, with the names, addition, and residence of the party applying for the commission, must be sent by the bishop to the accused party fourteen days at least before issuing the commission; and it should be remembered that every particular required in this notice must be strictly and exactly complied with."

The commissioners, when appointed, are to proceed to Proceedings of examine witnesses upon oath, to ascertain whether there the commisbe sufficient prima facie grounds for instituting any further sioners. proceedings against the accused party. Notice of the time and place of their meeting for these purposes must be given under the hand of one of them to the accused party seven days at least before the meeting; and the accused party, or an agent on his behalf, may attend the proceedings of the commissioners, and may cross-examine the witnesses produced in support of the charge, or produce and examine witnesses for their defence; or the commissioners may themselves summon any witnesses whom they may think necessary or proper.h

These preliminary proceedings are to be public, unless Proceedings to on the special application of the accused party, in which be public unless case the commissioners shall direct that the whole or any tion of the acon the applicapart of the proceedings shall be private: upon which sub- cused.

ject it does not appear that they may exercise any discretion, but the application of the accused party for a private hearing must be allowed. And when these proceedings, whether public or private, shall have been closed, one of the commissioners shall openly and publicly declare the opinion of the majority, whether there be sufficient primâ facie ground for instituting further proceedings.i

The commissioners, or any three of them, shall transmit Depositions of to the bishop, under their hands and seals, the depositions the witnesses of the witnesses taken before them, and the opinion of the and the report. majority of the commissioners present at the inquiry, as to whether there be any ground for further proceedings, which report is to be filed in the registry of the diocese; and if the party accused hold any preferment in any other diocese, the bishop to whom the report is made is to transmit a copy thereof and of the depositions to the bishop of such other diocese; and also, upon the application of the church if a power were given to the ecclesiastical commissioners, now including all the bishops, to determine doubtful matters of a certain class; which determination might, if confirmed by the queen in council, thenceforth have the authority of law. The expediency and propriety of leaving such matters to par. liamentary decision appears doubtful.

* Sect. 3.

h Sect. 4.

i Ibid.

D

the party accused, he is to cause a copy of the same to be delivered to him on payment of a reasonable sum, not exceeding two-pence for each folio of ninety words.*

At this stage of the proceedings, or at any other, if both the party accused and the party complaining consent in writing, the bishop may, without any further proceedings, pronounce such sentence as he may think fit: provided it does not exceed the sentence which might have been pronounced in due course of law. And all such sentences are good and effectual, and to be enforced by the same. means, as if pronounced after a regular hearing as hereafter mentioned.'

If the commissioners report that there is ground for further proceedings, and the bishop, or the party complaining, thereupon thinks proper to proceed further against the accused, articles are to be drawn up to be approved and signed by an advocate practising in Doctors' Commons, which, together with a copy of the depositions taken before the commissioners, are to be filed in the registry of the diocese: and the party complaining and the accused, or any one on behalf of such parties, is entitled to inspect these documents without fee; and on demand may have from the registrar copies of the same, on payment of a sum not exceeding two-pence for each folio of ninety words." A copy of the articles so filed in the registry of the diocese is to be forthwith served upon the party accused personally, or by leaving them at the residence house of any preferment holden by him, or, if there be no such house, at his usual or last known place of residence: and such articles cannot be proceeded on until fourteen days have expired after the day on which the copy was so

served."

And here it may be observed, that every notice and requisition given or made in pursuance of this act must be served on the party to whom it relates in the same manner as here directed with respect to the service of the articles."

At any time after the expiration of the fourteen days the bishop may require the party accused to appear before him personally or by his agent, at the option of the accused, to answer the articles within such time as the bishop may think proper; and if the party, when he appears, admits the truth of the articles, the bishop, or his commissary appointed for that purpose, may at once pass sentence on him according to the ecclesiastical law.P