may also sit during dissolution if authorized by his Majesty under the sign manual. (¿)

The Judicial Committee of the Privy Council.-Appeal to this court from the ecclesiastical courts, the Channel Islands, and from English courts abroad were left untouched by the Judicature Acts.

Composition.-As originally constituted in 1833 (3 & 4 Will. IV. c. 41), the members of the judicial committee comprised the lord president, the lord chancellor, such of the members of the privy council as hold or have held certain offices, including, in ecclesiastical cases, every archbishop or bishop being a privy councillor. (k) By the Judicial Committee Act, 1871, (7) four paid members were added.

The six lords of appeal in ordinary have now taken the place of the four paid members of the judicial committee, (m) whilst the posts which constitute "high judicial office" are defined by the Appellate Jurisdiction Act, 1887. (n) Former chief justices or judges of the superior courts in various colonies, being members of the Privy Council, are also to be members. of the judicial committee, their number not exceeding seven, under the Judicial Committee Amendment Act, 1895, and the Appellate Jurisdiction Act, 1913; and by the Appellate Jurisdiction Act, 1908, former chief justices or judges of any high court in British India, being members of the Privy Council, may be members of the judicial committee (but not exceeding two in number) if His Majesty so directs (o). Such archbishops and bishops as are privy councillors no longer sit as members of the committee, but may be called in as assessors.

(p)

Under the original Act four members formed a quorum, (q) but this number was reduced to three by the 6 & 7 Vict. c. 38.

(i) App. Jur. Act, 1876, s. 9.

(k) 3 & 4 Will. IV. c. 41, ss. 1, 6, 16, 30.

(1) 34 & 35 Vict. c. 91.

(m) App. Jur. Act, 1876, ss. 6, 14, 24; App. Jur. Act, 1913, s. 1.

(n) S. 5; and see App. Jur. Act, 1876, s. 25; and the Judicial

Committee Act, 1881, s. 1.

(0) 58 & 59 Vict. c. 44; 8 Ed. VII. c. 51, ss. 2 (1) (2), 3.

(p) App. Jur. Act, 1876, ss. 12, 24.

(q) 3 & 4 Will. IV. c. 41, s. 5.

Part V. The Church, the Navy, the Army.

CHAPTER I.

THE CHURCH.

The Established Church of England.

IN legal phraseology the English Church is spoken of as being "by law established," and this means that the Church is built into and forms part of the fabric of the Constitution, mainly by the legislative enactments of the reigns of Henry VIII., Edward VI., and Elizabeth. The changes brought about by these enactments were both doctrinal and constitutional. The doctrine of the Church was fixed by thirty-nine Articles, which declared the authority of every national church to ordain, change, or abolish ceremonies or rites ordained only by man's authority. Constitutionally, the changes brought about by the Reformation were: (1) The abolition of the papal authority, and the restoration of the judicial authority of the Crown over ecclesiastical causes; (2) the subordination of the legislative powers of the clergy to the Crown and Parliament; (3) the sanction given by Parliament to the Thirty-nine Articles and the Book of Common Prayer.

Position of the Church before the Reformation.-Previously to the Reformation the position of the Church was briefly as follows. William the Conqueror had separated the civil and ecclesiastical courts, and the result of this separation (discontinued by Henry I., but restored by Stephen) was the growth of an entirely separate ecclesiastical jurisdiction, to which the clergy were subject free from any secular supervision and extending to matrimonial and testamentary causes which concerned laity as well as clergy. The clergy also claimed

immunity from the jurisdiction of the secular courts, and appeals from the ecclesiastical courts were often carried to Rome, in spite of the rules made by the Conqueror and the Constitutions of Clarendon.

With regard to legislation, the Clergy refused to attend Parliament, and legislated for, and even taxed, themselves in their own Convocations.

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Changes brought about by the Reformation.-(1) The Act of Supremacy (26 Hen. VIII. c. 1) declared the king to be the only supreme head of the English Church on earth." This Act was repealed by Mary, but Elizabeth's Act of Supremacy (a) declared the queen to be sovereign over all persons and causes, to the exclusion of every foreign power, and required all holders of office, lay and clerical, to acknowledge the same by taking the oath prescribed by the Act.

(2) Appeals to Rome.--These were forbidden in 1533 (b) under penalty of incurring a præmunire, and by the Act for the Submission of the Clergy (25 Hen. VIII. c. 19) appeals from the archbishop were to lie to the king in Chancery, and this jurisdiction was exercised by the Court of Delegates. Eventually, in 1832, (c) jurisdiction in ecclesiastical appeals was handed over to the Privy Council, and in 1833 to the judicial committee of the Privy Council on the formation of that body. (d)

Elizabeth's Act of Supremacy (e) went further than this, and vested in the Crown the ecclesiastical jurisdiction by visitation, and this was exercised by the Court of High Commission until the abolition of that body in the reign of Charles I. (f) James II. endeavoured to revive it under the name of the Commissioners for Ecclesiastical Causes, but the Bill of Rights finally declared such a court illegal.

(3) Convocation.-By the Act for the Submission of the Clergy, 1533, (g) Convocation can only be summoned by the king's writ, and canons can only be enacted with the royal licence and assent. By the same Act (h) such canons as were in use, and were not repugnant to the common or statute law,

(a) 1 Eliz. c. 1.

(c) 2 & 3 Will. IV. c. 92.

(e) 1 Eliz. c. 1.

(g) 25 Hen. VIII. c. 19.

(b) 24 Hen. VIII. c. 12.
(d) 3 & 4 Will. IV. c. 41.
(f) 16 Car. I. c. 11.
(h) Ib. s. 7.

or to the royal prerogative, were to remain in use until a commission sat to inquire into and affirm them. This commission never did sit, and therefore the only canons passed before 1533 which have any legal effect are such as are repugnant neither to the common or statute law nor to the royal prerogative.

Before the passing of the statute the clergy taxed themselves by granting subsidies in the provincial synods or Convocations summoned by the archbishop. These subsidies were passed in Convocation, and generally, though not always, confirmed by Parliament. (i) In 1633 four subsidies were granted in this way for the last time, and since that date the clergy have been taxed with the laity by tacit consent; at the same time they have assumed (though without direct statutory authority) the privilege of voting for the return of members of Parliament, and this right, having been assumed by statute (k) to exist, is not likely to be questioned. Convocation is now summoned and dismissed in the following

manner:

An Order in Council is issued to the lord chancellor, directing him to issue the necessary writs to the archbishops. This is accordingly done, and in Canterbury the archbishop issues a mandate to the dean of the province (the Bishop of London), directing him to summon the bishops of the province. The bishops in their turn cite the deans and archdeacons, and procure the election of one proctor for each chapter, and two proctors for the clergy in each diocese.

In York the archbishop cites the bishops, and the latter cite the deans in their dioceses, and procure the election of one proctor for each chapter, and two proctors for each archdeaconry. The ordinary clergy are thus more largely represented in York than in Canterbury. The bishops form the Upper House; the deans, archdeacons, and proctors, with a prolocutor at their head, form the Lower House.

The Crown's licence and consent is necessary before convocation can enact canons.

When a canon is to be enacted the following procedure is

(i) Phill., Eccl. Law, p. 1537.

(k) 10 Anne, c. 23 and 18 Geo. II. c. 18, and see Phill., Eccl. Law, p. 1538.

observed: Letters of business are first sent by the Crown to Convocation, suggesting topics for discussion, for Convocation cannot even confer to constitute a canon without the king's licence. (1)

When a canon is to be enacted the letters of business are accompanied by a licence, in the form of letters patent, to make or alter a canon. The canon must then be confirmed by further letters patent, which grants leave to promulge the canon, and promulgation takes place in the presence of both Houses.

A canon so enacted and promulgated binds the clergy, but it does not bind the laity without the authority of an Act of Parliament. (m) And even with regard to the clergy it cannot be executed after the royal assent, if it is contrary to the common or statute law, or the king's prerogative, or to the custom of the realm. (n) Canons which bind the laity may be enforced by excommunication and refusal to administer the sacrament; and by 53 Geo. III. c. 127, an excommunicated person who refuses to obey the orders of the ecclesiastical court may be sentenced to six months' imprisonment; further, if he dies in contumacy, the clergy may refuse to read the burial service over him.

Though canons cannot be enacted or even discussed, apparently, by Convocation without the king's licence, it may, and frequently does, discuss various matters without any royal mandate. When any such matter has been duly considered, the prolocutor and clergy are sent for to the Upper House, and any agreement they may come to thereon is passed in the form of a synodical Act. (0)

In the year 1717 Convocation was prorogued and did not meet again for the transaction of business, except on one or two occasions, until early in the reign of Victoria. (p) From 1840 onwards Convocations have been summoned regularly and discussions on important topics take place. Much valuable work has also been done in the shape of the

(1) The case of Convocations (8 Jac. I.) xii. Co. Rep., p. 72. (m) Cox's case (1700), 1 P. Wms., p. 32; Middleton v. Croft (1736), 2 Atk. 650.

(n) The case of Convocations (8 Jac. I.) 12 Co. Rep., p. 72. (0) Phill., Eccl. Law, p. 1551.

(p) See Phill., Eccl. Law, p. 1540.