ARY PRIVI LEGES. Thus Lord Coke states (1), "Every lord of Parliament, and that hath PARLIAMENTvoice in Parliament, and called thereunto by the King's writ, shall not be tried by his peers, but only such as sit there ratione nobilitatis, as dukes, marquises, counts, viscounts, or barons; and not such as are lords of Parliament ratione baroniarum, quas tenent in jure ecclesiæ, as archbishops and bishops; and, in time past, some abbots and priors; but they shall be tried by the country, that is, by freeholders, for that they are not of the degree of nobility." (2) In criminal cases the lords spiritual usually withdraw, and make their In criminal proxies. (3) 8. How VACANCIES IN BISHOPRICS MAY BE CREATED. cases the lords spiritual usually withdraw. How VACAN CIES IN BISHOPRICS Bishoprics may become void by death, deprivation for any very gross MAY BE and notorious crimes, and also by resignation. All resignations must be made to some superior; therefore a bishop must resign to his metropolitan. There seems to be some confusion in the books concerning the deposing or depriving of a bishop. But deposing is one thing, and depriving is another thing very different. CREATED. between depo. sition and Deposition implies the taking away or putting him from the office itself, Distinction or degrading him from the order of bishop. Deprivation only takes from him the exercise thereof in such a particular deprivation. diocese, leaving him still bishop as much as he was before, and only vacates his promotion. (4) (1) 3 Inst. 31. (2) There are, however, instances of trials of bishops per pares, in Parliament; as (15 Edw. 3.) of Archbishop Stratford; and (21 Rich. 2.) of Archbishop Arundel: and though there may have been trials of bishops by jury (as in the case of Adam bishop of Hereford, and John de Insula bishop of Ely), and one, more particularly, of Thomas Merks bishop of Carlisle, who did. directly put himself super patriam, yet there are also plain instances of temporal lords voluntarily waiving their trials by peers, and putting themselves upon the king's mercy, as did William de la Pole duke of Suffolk (28 Hen. 6.); or upon their country, as was done by Thomas Lord Berkley (4 Edw. 3.); and if, notwithstanding the provision of Magna Charta, that every man that is tried at the king's suit, must be tried by his peers, they might do this without prejudice to their peerage, and nght to trial by peers; so might the bishops too: and, supposing that no archbishop or bishop was ever tried per pares, nor any temporal lord ever put himself super patriam, or the king's mercy, yet even Seiden (Baronage, 143.) acknowledges that there is no consequence, from their not being tried by peers, that therefore they are pere; since the common law may limit the privilege of peers in one particular (3) 3 Inst. 31. Gibson's Codex, 125. Against bishops being concerned in cases of blood, the determination of the canon law is as follows:- His, à quibus Domini sacramenta tractanda sunt, judicium sanguinis agitare non licet. Et ideò magnoperè talibus excessibus prohibendum est, ne indiscreta presumptionis moribus agitati, aut quod morte plectendum est, Senteutia propria judicare præsumant, aut truncationes quibuslibet personis per se inferant, aut inferendas præcipiant. Quod si quisquam immemor horum præceptorum, aut in Ecclesiæ suæ familiis, aut in quibuslibet personis tale aliquid fecerit, concessi ordinis honore privetur, et loco: sub perpetuo quoque damnationis teneatur ergastulo reli gatus. Cui tamen communio exeunti ex hac vita non est neganda propter Domini misericordiam, qui non vult peccatoris mortem, sed ut convertatur, et vivat. Caus. 23. q. 8. c. 30. (4) 1 Burn's E, L. 231. How VACAN- OPRICS MAY BE Consecration fers character indelebilis. A bishop who is unprofitable to his diocese ought to be removed. The right of the archbishop and deprive bishops. As to the power of deposing, Dr. Ayliffe (1) says, that, by a canon of the Council of Lateran, bishops cannot be deposed by their metropolitans without the pope's leave or license so to do; even as a bishop cannot, by his power alone, depose any clerk from his orders, though he may, by himself, give a person orders. Dr. Godolphin (2) observes, that the consecration of a bishop confers "character indelebilis; insomuch that although it should so happen that, for some just cause, he should be deposed or removed from the see, or suspended ab officio et beneficio, both from his spiritual jurisdiction as to the exercise and execution thereof, and also from the temporalties and profits of the bishopric, yet he still retains the title of a bishop, for that it is supposed the order itself cannot absolutely be taken from him.” As to deprivation, Dr. Ayliffe (3) says, that, in England, an archbishop may deprive a bishop, if his crime deserves so severe a punishment; and that it is said in the canon law, that a bishop who is unprofitable to his diocese ought to be deprived, and no coadjutor assigned him, nor shall he be restored again thereunto. The right of the archbishop (4) to cite, punish, and deprive bishops, to cite, punish, was settled by the House of Lords and the Court of Queen's Bench, in the case of the Bishop of St. David's (5), where Chief Justice Holt said, "It was always admitted that the archbishop had metropolitical jurisdiction, and the bishops swear canonical obedience to him; and where there is a visitatorial power, there is no reason to question the power of deprivation; for the same superiority, which gives him power to pass ecclesiastical censures upon the bishops, will give him power to deprive, it being only a different degree of punishment for a different degree of offence. This appears upon the statutes 26 Hen. 8. c. 1. and 1 Eliz. c. 1., where, notwithstanding that there is not one word of deprivation, but only to visit, repress, redress, reform, correct, and amend, yet they have been construed to give a power of deprivation. And by virtue of stat. 26 Hen. 8. c. 1. Bonner was deprived. Dr. Burnet, the bishop of Salisbury, in his book of the Reformation, believes that Bonner was deprived because he had accepted letters patent of Henry VIII. to be bishop; but that cannot be a legal reason, for, he being bishop before for his life, acceptance (6) of a patent, durante beneplacito, could not determine it. So the high commissioners, by virtue of the act of 1 Eliz. c. 1., deprived; and yet there is not one word of deprivation in the said act, but only visit, &c., as in the said act of 26 Hen. 8. c. 1. And the reason, that it is an inherent prerogative in the king, is but an additional reason; for it is plain, that, before the statute of Elizabeth, the king could not have granted a commission for redressing and reforming ecclesiastical matters, and therefore the power that they had proceeded from the said act; for the king exercises his ecclesiastical supremacy by his ecclesiastical judges, as he exercises his temporal by his temporal judges." And Mr. Justice Gould said, that " in 2 Hen. 4. 10. a., where the ecclesiastical jurisdictions are enumerated, the account begins with archbishops. And it appears by our books, that bishops may be deprived for dilapida CIES IN BISH- tions. (1) And such deprivation seems to be by the archbishop; for other- How VACANwise to whom should the Court write? For which reason it must be pleaded, by whom it was done, as Bro. Deposition, 5. The Court cannot write to the convocation; and it is strange, if the bishops are deprivable, that the law should place it at such distance, as to refer it to the convocation. And in 1 Rol. Abr. 882., 10 Vin. Abr. 509. (G.) pl. 1., Anselmus, archbishop of Canterbury, is said to have deprived several prelates. And there is no case where a person hath power of visitation, but he hath also power of deprivation. (2) But when there was such a summary way of proceeding before the high commission, it is no wonder if such a tedious proceeding before the archbishop was not used." But Chief Justice Holt said, "that though he was fully satisfied in his opinion that the archbishop had such jurisdiction, yet he would not make that the ground of denying a prohibition in this case. The matter of the suggestion is, that the archbishop is restrained by the canon law from proceeding, &c., without assistance, &c. Now it must be, that the Court take notice that the archbishop, by the common law, hath metropolitical jurisdiction, and for that purpose he was constituted; that there are two in England, who are primates in their respective provinces; and then they have sufficient jurisdiction, and being the judges, though, perhaps, by the canon law, they ought to take other persons to their assistance, yet their proceeding without such assistance cannot be a ground for a prohibition. If, in fact, the archbishop extended his jurisdiction further than he could by the rules of the common law, that might be a ground for a prohibition; but where all the authority that he makes use of is no more than what the common law allows him; but there are some ecclesiastical canons which restrain him from exercising the jurisdiction which he hath by the common law; that is matter proper for the cognisance of the delegates upon the appeal, but no ground to prohibit them from proceeding. And it is without precedent, to grant a prohibition to the ecclesiastical court, because they proceed there contrary to the canons." Although the foregoing case of the Bishop of St. David's would justify the archbishop to deprive a bishop for just cause, and shows that he can deprive a bishop without the co-operation of a synod of the bishops of the province, according to the rules of the primitive times, yet when the Bishop of Clogher was deposed in 1822, it was judged expedient, to obviate any doubt upon the point, that the judicial tribunal should be composed of the archbishop and all the other bishops of the province-a precedent which will probably be followed on all future occasions. (1) Liford's case, 11 Co. 49. (b). 3 Inst. 204. 29 Ed. 3. 16. a. 2 H. 4. 3. b. (2) F. N. B. 93. tit. Prohibition and Inhibition. Members of the judicial tribunal that depos ed the Bishop of Clogher. GENERALLY. Statutes relating to blasphemy and profaneness. Stat. 1 Edw. 6. c. 1. Stat. 1 Eliz. c. 2. any minister speaking in derogation of, or any c. 32. BLASPHEMY AND PROFANENESS. (1) Generally Statutes relating to blasphemy and profaneness- Stat. 1 Edw. 6. c. 1. All blasphemies against God, as denying his being or providence; and all contumelious reproaches of Jesus Christ; all profane scoffing at the Holy Scriptures, or exposing any part thereof to contempt or ridicule; all impostors in religion, as falsely pretending to extraordinary commissions from God, and terrifying or abusing the people with false denunciations of judg ments; and all open lewdness grossly scandalous; inasmuch as they tend to subvert all religion or morality, which are the foundations of government, are punishable by the temporal judges with fine and imprisonment, and also such corporal infamous punishment as to the Court, in discretion, shall seem meet, according to the heinousness of the crime. (2) The statutes relating to blasphemy and profaneness are, stat. 1 Edw. 6. c. 1. (against such as shall irreverently speak against the sacrament of the altar, and of the receiving thereof under both kinds) (3); stat. 1 Eliz. c. 2. (for the uniformity of common prayer) (4); stat. 3 Jac. 1. c. 21. (to restrain the abuses of players) (5); stat. 9 & 10 Gul. 3. c. 32. (for the more effectual suppressing of blasphemy and profaneness) (6): stat. 22 Geo. 2. c. 33. (rendering seamen on board ships of war guilty of profaneness liable to be brought to trial before a courtmartial) (7); stat. 53 Geo. 3. c. 160. (relieving persons who impugn the doctrine of the Holy Trinity from certain penalties) (8); stat. 60 Geo. 3. & 1 Geo. 4. c. 8. (for the more effectual prevention and punishment of blasphemous and seditious libels) (9); stat. 4 Geo. 4. c. 31. (repealing the provisions of stat. 19 Geo. 2. c. 21. requiring the same to be read quarterly in all parish churches, &c.) (10); and stat. 11 Geo. 4. & 1 Gul. 4. c. 73. (partly repealing stat. 60 Geo. 3. & 1 Geo. 4. c. 8.) (11) By stat. 1 Edw. 6. c. 1. (repealed by stat. 1 Mary, sess. 2. c. 2., and revived by stat. 1 Eliz. c. 1.), persons reviling the sacrament of the Lord's Supper by contemptuous words, or otherwise, shall suffer imprisonment. By stat. 1 Eliz. c. 2., if any minister shall speak any thing in derogation of the Book of Common Prayer, he shall, if he be beneficed, for the first offence be imprisoned six months, and forfeit a year's value of his benefice; for the second, be deprived and suffer one year's imprisonment; and for AND PROFANE NESS. the third, in like manner be deprived and suffer imprisonment for life: BLASPHEMY and if he be not beneficed, he shall be imprisoned one year for the first offence, and for life for the second. And if any person whatsoever shall in plays, songs, or other open words, speak anything in derogation, depraving, or despising of the said book, or shall forcibly prevent the reading of it, or cause any other service to be read in its stead, he shall forfeit for the first offence 100 marks; for the second, 400; and for the third, shall forfeit all his goods and chattels, and suffer imprisonment for life. By stat. 3 Jac. 1. c. 21., a person using the holy name of God, or of Christ Jesus, or of the Holy Ghost, or of the Trinity profanely or jestingly, in any stage-play, interlude, or show, is liable to a qui tam penalty of ten pounds. if By stat. 9 & 10 Gul. 3. c. 32. (partly repealed by stat. 53 Geo. 3. c. 160.), any person, educated in or having made profession of the Christian religion, by writing, printing, teaching, or advised speaking, denied the Christian religion to be true, or the Holy Scriptures to be of divine authority, he was for the first offence rendered incapable to hold any office or place of trust; and for the second rendered incapable of bringing any action, or to be guardian, executor, legatee, or purchaser of lands, and was to suffer three years' imprisonment without bail. But if the delinquent publicly renounced his error, in open court, within four months after the first conviction, he was to be discharged. for that once from all disabilities. A person offending under stat. 9 & 10 Gul. 3. c. 32. was held to be also indictable at common law (1), and this doctrine was considered in Rex v. Carlisle (2), where a motion was made in arrest of judgment, after conviction on an information for a blasphemous libel, on the ground that stat. 9 & 10 Gul. 3. c. 32. had put an end to the common law offence: and the Court held that it had not, because the provisions of the statute were cumulative. person by writings or words depraving the Book of Common Prayer. Stat. 3 Jac. 1. c. 21. Using the holy name of God or of the Holy Trinity profanely. Stat. 9 & 10 the Christian religion. In Rex v. Taylor (3), which was the trial of an information against the Reproaching defendant for uttering expressions grossly blasphemous, Chief Justice Hale observed, that "such kind of wicked blasphemous words were not only an offence to God and religion, but a crime against the laws, state, and government, and therefore punishable in the Court of King's Bench. For to say religion is a cheat, is to dissolve all those obligations whereby civil societies. are preserved; and Christianity is part of the laws of England, and therefore to reproach the christian religion, is to speak in subversion of the law." In Rex v. Waddington (4), where a libel stated that Jesus Christ was an impostor, a murderer in principle, and a fanatic, a juryman asked whether a work denying the divinity of our Saviour was a libel, and Chief Justice Abbott answered, that a work speaking of Jesus Christ in the lan (1) Rex v. Woolston, Barnard. 162. Ibid. 2 Str 834. Fitzgib. 64. Rex v. Williams, Rer v. Caton, cit. 1 Russell on Crimes, by Greaves, 231. This statute also related to persons denying, as therein mentioned, the Holy Trinity; but such provisions were repealed by stat. 53 Geo. 3. c. 160.; but such statute did not alter the common law with respect to impugning the doctrine of the Trinity: it only removed the penalties imposed on 3 Keb. 607. |