GENERAL DU "Bishops shall have honest eleemosynaries, shall keep hospitality, and TIES AND AU- hear the causes of the poor. (1) THORITY OF A BISHOP IN HIS SEVERAL CAPACITIES. In what cases the ordinary's jurisdiction is not merely local. Whether the cite a man out of his own The jurisdiction of the ordinary or bishop, as to the examination of the clerk, or as to the admission or institution of him into a benefice, is not local ; but it follows the person of the ordinary or bishop wheresoever he is: and, therefore, if a clerk be presented to the Bishop of Norwich, to a church which is void within the diocese of Norwich, and the bishop is then in London; or if it be to a bishop of Ireland, who is then in England, and in London; the ordinary may examine the clerk, or give him admission or institution in London. (2) The ordinary cannot cite a man out of his diocese. Thus, in Brown's ordinary may case (3), it was heid that at the common law a bishop cannot cite a man out of his diocese; and that the ordinary has not any jurisdiction out of his diocese, but to absolve a person excommunicated. But if one in N. commit adultery in another diocese, during the time of his residence, he may be cited in the diocese where he committed the offence, although he dwell out of the diocese. (4) diocese; also his right ad synodalia. Powers of bishops whilst inhabiting their London houses. It has been said (5) that "bishops, whilst inhabiting their London houses, are considered as residing in their dioceses :" but it is clear that this privilege, if it do exist, is personal and not local, and does not attach if the property pass out of the bishop's hands. Thus, in the office of the judge Judgment of promoted by Barton v. Wells (6), Sir William Scott observed, “This is a Sir William proceeding by Dr. Barton, rector of the parish of St. Andrew, Holborn, Barton v. Wells. against Dr. Wells, for performing divine service, preaching, and adminis Scott in tering the sacraments in Ely Place Chapel, without a licence from the Bishop of London. The fact is admitted, and though the form of this proceeding is criminal, the suit is brought for the purpose of trying the civil right, and the real parties may be said to be the Bishop of London and the Bishop of Ely, or the grantee of the Crown. In one of these persons the jurisdiction resides; Dr. Barton lays it in the Bishop of London, Dr. Wells in the Bishop of Ely, or in the grantee of the Crown, though it cannot be in both; and the counsel for Dr. Wells have argued it almost entirely as for the grantee, and thereby seem rather to admit that the Bishop of Ely must be excluded. I may add, also, that the nature of the present proceeding scarcely raises the question of general jurisdiction, since it is founded only on the charge of officiating in the performance of divine service without a licence. In many chapels it is necessary that the minister should have a licence, or institution, from the bishop, although the bishop may have no general jurisdiction over the place. (7) “Free chapels are of that nature; and in many pure donatives the bishop has authority over the persons officiating, though not over the place. (8) (1) Lyndwood, Const. Prov. Ang. 67. (4) Pedley v. Langley, Brownl. 1. (7) "Free chapels were places of religious inducted by the archdeacon of the place." Tanner, Not. Mon. Pref. p. 28. "Free chapels may continue such, in point of exemption from ordinary visitation, though the head or members receive institution from the ordinary." Gibson's Codex, 211. Registr. f. 307. b. (8) Co'efatt v. Newcomb, 2 Ld. Raym. 1205. TIES AND AU- BISHOP IN HIS "The question then is, whether it is necessary that Dr. Wells should GENERAL DUhave a licence from the Bishop of London to officiate in Ely Chapel ? and not whether the general jurisdiction of the Bishop of London, as ordinary in a larger sense, may extend there? On the part of Dr. Wells, it is not SEVERAL CAPACITIES. shown under what authority he acts; he declines all authority from the Bishop of London, and alleges none from the Bishop of Ely, or from the Judgment of grantee; and he may be said almost, on his own representation, to stand in the character of a mere intruder.... "The ground assumed in this case is, that Ely Chapel was an ancient chapel of the Bishop of Ely, and within the diocese of Ely, as part of the episcopal house, which was conveyed by act of parliament, with all rights, privileges, and immunities to the Crown; that, in this manner, it became part of no diocese whatever, and was afterwards granted by the Crown to the present grantee, who holds, as the Crown held, free from all jurisdiction.... "It appears from general authentic history that the see of Ely was founded in 1109, but that of London subsisted many ages before. The house was purchased by Bishop Kirby in 1290, consisting then of a messuage and several cottages. (1) His successor, Bishop De Luda, purchased more houses, and left them to the see on payment of 1000 marks to his executors. It is not shown at what time the chapel was built; but it must have been either by Bishop Kirby or De Luda, since there is mention in the will of the latter of an endowment for a chaplain, and it does not appear that there was, on that occasion, any other interposition of the royal authority than to legalise the gift. “What, then, was the condition of this place before the purchase by the bishop? It must have stood on the common footing of all ground in and about London, which is not distinguished by any known appropriation, as part of the diocese of London. There is no suggestion to the contrary, since the whole argument is built upon the change, that is supposed to have been made by its becoming part of the diocese of Ely; and it is said that it became thereby exempt from the ordinary jurisdiction of the Bishop of London. But that is to speak improperly, since there was no special exemption from London, only as every other part of Ely, or as any part of one diocese is exempt from another. "I conceive, by the ancient law, that bishops should be empowered to act in their London houses as in their dioceses; and for that purpose their residences in London were considered as part of their dioceses. We collect this from what is stated by Bishop Gibson' (2), and from the statute 39 Hen. 8. c. 31., relating to the bishopric of Chester, where it is provided that he shall be held resident in the diocese of Chester, and have jurisdiction in his house at Weston, within the diocese of Coventry and Litchfield, during his abode there, as other bishops have in the houses belonging to their sees, wheresoever they lie.' It is said, that this is only a private art, and it is so in its enactments, but it gives a general description of the bishop's jurisdiction in such places. It refers to a rule of law which was going into desuetude; and in the stat. 31 Hen. 8., relative to the exchange of houses between the Bishops of Carlisle and Rochester and the Lord (2) Cod. 132. n. (1) Vide Bentham's Church of Ely, 151. 153. ; etiam Godwin, de Præsulibus "Episcop. Elien." M Sir William v. Wells. TIES AND AU THORITY OF A BISHOP IN HIS SEVERAL CAPACITIES. GENERAL DE Russell, there is a clause providing that they should have the same authority in their new houses at Lambeth and Chiswick as they had exercised in their old houses;' and Gibson says, that at the time when he wrote, 'there were none left but Lambeth House and Croydon, belonging to the Archbishop of Canterbury; Winchester Place, now removed from Southwark to Chelsea; and Ely House in Holborn.' (1) The same privilege has not been attached to new houses, and is not annexed to the present Ely House, though a visitatorial jurisdiction is allowed in it by statute. (2.) Judgment of "It is made a question, what was the nature of the authority allowed, whether voluntary or contentious? but I see no reason to limit that privilege in the present case, though it is certain, that by the old canon law (3) it is laid down as a rule, that one bishop could not exercise jurisdiction in another diocese, even with the consent of the other bishop, ‹ nisi cognosceret inter volentes.' The objection from the Statute of Citations (4) is not material, since, in such instances, there would not be a going out of the diocese more than in the case of detached districts, and I see no reason to presume that the bishop might not have held a court of audience or consistory court in such places, though it was seldom done. "Another question is raised, whether the ancient jurisdiction remained concurrent, or was excluded or removed? In the older editions of Ecton, I perceive that Ely Chapel is classed in London, and it is more consonant to general principle that it should be so, than that it should have become absolutely and exclusively a part of Ely. "Such being the ancient law and usage, is it to be inferred, in reason or in fact, that a place so becoming part of the new diocese is thereby irrevocably detached from the ancient diocese? The intention of the rule was to protect the bishop from the penalty of non-residence (5), and to provide for the necessities of his diocese, by enabling him to perform the duties of it when called away by public business. Suppose the first bishop, Kirby, had soon quitted this residence, on both reasons he would have carried the privilege to his new house. In such a case, on what ground could the person who might succeed him, not being Bishop of Ely, claim jurisdiction on any principle of security to himself, or grounds of public convenience? Suppose the same of Bishop De Luda, or his immediate successors. If the privilege would not have remained attached to the house when they left it, then it can only be by the effect of time, as it is contended, that the personal privilege is now become local. But how is this proved? It is only said, that time has done so in other cases, and that in detached parts of counties. The history of that fact, however, is subject to much obscurity and doubt; and even taking it to be true and certain, is accounted for on other principles. When counts, having hereditary counties, had also manors elsewhere, it is supposed that they obtained permission of the Crown, that the detached manors should be parts of their counties. But there is no general principle that is known to have prevailed at any time, that the demesne lands of an earl should, during his residence there, be deemed appendant (1) Gibson's Codex, 132. n. (2) The act 12 Geo. 3. c. 43. provides that the bishop may continue to exercise his appellate jurisdiction, as visitor of certain colleges in Cambridge, and also directs that payment of the reserved rents belonging to his see, may be made in the new episcopal residence, Ely House, Dover Street. (3) X. 1. 30. 7. Vide Gloss. "Terminos." (4) Stat. 23. Hen. 8. c. 9. (5) 1 Burn's E. L. 213. Watson's Clergyman's Law, c. 37. p. 368. to his county; and it is most probable, that it was by special grant that such peculiar exceptions were established. But supposing such grants were obtained, they became under such grants local; and succeeding earls could not, by changing such manors, affect their local character, and cause their new demesnes to be considered in the county where situated, whilst the ancient ones lost that character. "With respect to bishops, the origin of their privilege was very different, as it was principally founded on the ancient rule, that their residence should be within their diocese. The cause and the nature of their privilege was personal; and in the several instances which are mentioned in the acts of parliament, it is not to be doubted that they had all oratories consecrated, and probably by themselves, for divine service; yet there has been no claim of local exemption for these. It is truly said, that if others have relinquished such privileges, it cannot affect the rights of those who wish to retain them; but it is some presumption against such a claim, that no one, having the same ground of pretension, has made the same claim, particularly in a case of privilege, which is seldom given up, even when it is burdensome." GENERAL DU TIES AND AU THORITY OF A SEVERAL CAPACITIES. 7. PARLIAMENTARY PRIVILEGES. A bishop, confirmed, may sit in Parliament (1) as a lord thereof, but not until confirmed, because, the election is not complete without confirmation. (2) The spiritual lords consist, since the union with Ireland, of three archbishops and twenty-seven bishops, of whom one archbishop and three bishops are lords spiritual of Ireland, entitled by rotation to sit and vote on the part of Ireland. (3) PARLIAMENT. LEGES. The number of the spiritual lords. Supposed to hold certain ancient baronies. The lords spiritual are supposed to hold certain ancient baronies under the Crown, for William the Conqueror thought proper to change the spiritual tenure of frank-almoign, or free alms, under which the bishops held their lands during the Saxon government, into the feudal or Norman tenure by barony, which subjected their estates to all civil charges and assessments, from which they were before exempt (4); and, in right of succession to these baronies, which were unalienable from their respective dignities, the bishops were allowed seats in the House of Lords. (5) Archbishops and bishops may be deemed lords of Parliament by Archbishops reason of tenure, but they are not esteemed peers of the realm, which is now considered as a dignity ennobling the blood of the holder, and an indelible character in the person to whom it belongs, unless lost by forfeiture, or taken away by act of the legislature. (6) (1) Bishops upon being translated pay no rew fees upon their being introduced into Parliament. (2) Evans v. Ascough, Latch, 233. cit. Gibson's Codex, 29. (*) Vide stat. 39 & 40 Geo. 3. c. 67. Stephens' Ecclesiastical Statutes, 962. (4) Gilb. Hist. Exch. 55. 2 Black. Com. by Stephen, 358. (5) 3 Hallam's Hist. of Middle Ages, c. 8. 1 Inst. 134. (a). n. (1) Vide etiam 2 Ibid. 585-587. 4 Ibid. 1. Gibson's Codex, 127. (6) 1 Rep. Dig. Peer. 70. Vide 1 Stephens on the Law of Parliamentary Elections, 365. in not. 1 De Lolme on the English Constitution, by Stephens, 109. 112. 127. and bishops not peers of the realm PARLIAMENT- LEGES. But the title of the bishops to a seat in the House of Lords seems at the present day to be rather founded on usage than upon tenure(1); and it is clear that the bishops who were created under stat. 31 Hen. 8. c. 9. do bishops, as lords not hold their lands by baronial tenure. Title of the of Parliament, seems to be founded on usage. Lords temporal and spiritual only one estate. Precedence. Order in which the bishops sit in parliament. The lords Dr. Warburton, in his Alliance between Church and State (2), observes, "The bishops sit in the House of Peers by usage and custom; which I therefore call usage, because they had it not by express charter, for then we should find some. Neither had they it by tenure; for regularly their tenure was in free alms, and not per baroniam; and, therefore, it is clear they were not barons in respect of their possessions; but their possessions were called baronies, because they were the possessions of customary barons." Though these lords spiritual are, in the eye of the law, a distinct estate from the lords temporal, and are so distinguished in most of our acts of Parliament, yet, in practice, they are usually blended together under the one name of the Lords: they intermix in their votes; and the majority of such intermixture binds both estates. From this want of a separate assembly and separate negative of the prelates, it seems (3) that the lords temporal and spiritual are now, in reality, only one estate (4); at least it is unquestionably true in every effectual sense. For if a bill should pass their house, there is no doubt of its validity, though every lord spiritual should vote against it. Thus the Act of Uniformity (5) was passed with the dissent of all the bishops (6); and the style of lords spiritual is omitted throughout the whole. The Queen can likewise hold a parliament without any spiritual lords: thus were held the first two parliaments of Charles 2., whereto no bishops were summoned until after the repeal of stat. 16 Car. 1. c. 27. by stat. 13 Car. 2. c. 2. (7) On the other hand, an act of Parliament would, it is presumed, be good, if the lords temporal present were inferior to the bishops in number, and every one of those temporal lords gave his vote to reject the bill, though Sir Edward Coke seems to doubt (8) whether this would not be an ordinance, rather than an act of Parliament. By stat. 31 Hen. 8. c. 10. s. 3. (9) the bishops are to sit in Parliament on the right side of the parliament chamber, in this order: First, the Archbishop of Canterbury; next to him, on the same form, the Archbishop of York; then the Bishop of London; then the Bishop of Durham; then the Bishop of Winchester; then all the other bishops after their ancienties: but if any of them be a privy councillor, he takes place after the Bishop of Durham. (10) The lords spiritual enjoy the legal privileges (11) that the lords temporal spiritual enjoy do; but it is very questionable whether a bishop could be tried by the peers the legal privileges that temporal lords do, but questionable whether a bishop could be tried by the peers in Parliament. in Parliament. (12) |