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System of tical system of appeal as thus finally settled corresponds with appeal. the scheme contained in the eighth chapter of the Constitutions of Clarendon, wherein it was provided that appeals in spiritual causes ought to be from the archdeacon to the bishop, from the bishop to the archbishop, and from the archbishop to the king, without whose special license they could proceed no further.1

Matrimonial and testamen

One of the most important elements of jurisdiction immemorially vested in the ecclesiastical courts was the right to tary causes. hear and determine matrimonial and testamentary causes.2 This jurisdiction was taken away from them and vested in other tribunals by statutes 20 & 21 Vict., c. 77, § 3, c. 85, § 2; 21 & 22 Vict., c. 95, whereby the judicial authority of the spiritual courts was reduced to the consideration of such matters only as legitimately arise out of the administration of the affairs of the national church.

The new system of

cal coun

cils.

The same general causes which led to the organization of ecclesiasti- a distinct system of ecclesiastical courts led to the organization of a distinct system of ecclesiastical councils. Such a severance had occasionally occurred before the Conquest, but the custom was looked upon with such disfavor as to evoke in the reign of Ethelred a solemn condemnation in a formal decree of a national assembly. Under the new theories to which the Conquest gave birth, the holding of distinct ecclesiastical councils, so far from exciting condemnation, received open and positive approval. During the primacy of Lanfranc the holding of such councils, which were held at the same time as the regular gemots, became frequent. It was, however, no part of William's policy to allow to these ecclesiastical assemblies the right to legislate without limitation; he did not permit such assemblies "to enact or prohibit anything but what was agreeable to his will and had first been. ordained by him." Under these circumstances, and subject to such limitations, the national councils of the English

1 "De appellationibus si emerserint, ab archidiacono debent procedere ad episcopum, ab episcopo ad archiepiscopum. Et si archiepiscopus defecerit in justitia exhibenda, ad dominum regem perveniendum est postremo, ut præcepto ipsius in curia archiepiscopi controversia terminetur, ita quod non de

bet ulterius procedere absque assensu domini regis."

2 See Bigelow, Hist. of Procedure, pp. 51-53; Placita Ang.-Norm., p. 311.

3 Laws of Æthelred, §§ 36, 37, 38; Thorpe, vol. i. p. 340; Freeman, Norm. Cong., vol. i. p. 248.

councils

convoca

church became distinct bodies from the national parliaments.1 It must not be supposed, however, that it was only in national councils that the clergy met together for the purpose of deliberation and action. In fact the existence of such National councils was of but short duration. Owing to the jealousy short-lived. and strife existing between Canterbury and York, the assembling of general councils of the whole church, after the independence of York had been vindicated by Thurstan, became practically impossible. The government of the church thus Provincial passed to the two provincial convocations of York and Can- tions: Canterbury, which, as constitutional assemblies of the English work. terbury and clergy, have suffered no material change of organization from the reign of Edward I. to the present day. Each convocation is called by the writ of the archbishop directed to each bishop in his province, commanding him to cause the clergy of his diocese to assemble at a certain time and at a certain place in order to select two proctors in the name of the clergy, and one proctor for each cathedral and collegiate chapter, to appear in convocation as representatives.3 The convocation of the province of Canterbury - originally including bishops, abbots, priors, deans of cathedral and collegiate churches, heads of religious houses, archdeacons, and proctors is divided like the parliament into two houses. In the upper house the great ecclesiastical magnates appear in their own right; in the lower, appear the representatives of the chapters and the clergy at large. As Blackstone has well ex- Convocapressed it, "the convocation is the miniature of parliament, miniature wherein the archbishop presides with regal state; the upper ment." house of bishops represents the house of lords; and the lower house, composed of the representatives of the several dioceses at large, and of each particular chapter therein, resembles the house of commons

1 See above, pp. 261, 262.

2 "Only when the authority of a legate superseded for the moment the ordinary authority of both, were any national councils of the church summoned.". Stubbs, Const. Hist., vol. ii. p. 198.

8 The rule which finally determined the basis of representation was embodied in the writ through which was called a convocation which met at the New Temple after Easter, 1283.- Wil

with its knights of the shire kins, Concilia, ii. 93. The rule then adopted was soon after accepted as a canon.- - Ibid., ii. 49. But the writs through which the metropolitans convene the provincial convocations must not be confounded with the king's writs to the bishops individually, commanding through the "pramunientes clause the attendance of the proctors in parliament. See Hody's History of Convocations, p. 12.

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tion "the

of parlia

stone's view.

and burgesses. "1 The practice of representation makes its appearance about the same time in the church councils and in the parliament,2 and the two systems of representation deIts power velop side by side. From the Conquest down to the Reforto legislate. mation, the clergy as a spiritual organization, when assembled in convocation, possessed the power to legislate for the general government of the church, subject to such restrictions, limitations, or warnings as the king or the parliament might from time to time impose. Through the vicissitudes of the Reformation the English church passed with its legislative power Mr. Glad substantially unimpaired. In the words of Mr. Gladstone: "The Reformation statutes did not leave the convocation in the same condition relatively to the crown as the parliament. It was under more control, but its inherent and independent power was thereby more directly recognized. The king was not head of convocation; it was not merely his council. The archbishop was its head, and summoned and prorogued it. It was not power, but leave, that this body had to seek from the crown to make canons. A canon without the royal assent was already a canon, though without the force of law; but a bill which has passed the two houses is without a force of any kind until that assent is given. Again, the royal assent is given to canons in the gross, to bills one by one, which well illustrates the difference between the control in the one case and the actuating and moving power in the other." 3

Election of bishops.

As the administration of the vast powers which were vested in the separate courts and councils of the medieval church was substantially controlled by the bishops themselves, who also possessed no inconsiderable weight in the councils of the king, it is by no means strange that the right of appointment to the episcopal office should have become the subject of earnest contention between the crown, the papacy, and the clergy of the national church. In the early days of Christianity

1 Com., bk. i. p. 279.

2 As early as 1255 proctors of the parochial clergy appear in parliament at Westminster. - Ann. Burton, p. 360. See Hody's Hist. of Convocations, p. 345; Hallam, M. A., vol. iii. p. 126. Bishop Stubbs does not think it clear, however, that the representative principle was at that time regarded as an

integral part of the system of convocation." He considers that the rule for representation in convocation was first definitely fixed by the action of Archbishop Peckham in 1283.- Const. Hist., vol. ii. p. 197.

8 See Gladstone on the Royal Supremacy, p. 31.

the right to elect a bishop was, as a general rule, jointly vested in the clergy and people belonging to the city or diocese over which he was called to rule. By degrees the laity were excluded from any real participation, first in the Greek and finally in the Western church. The right to join in the Origin of chapters. election which was thus withdrawn from the people was not vested in the general body of the diocesan clergy, but in the council of priests and deacons, which originally stood in the closest relation to the bishop, constituting what came to be known as the chapter of the cathedral church.2 By the twelfth century these little senates or councils annexed to the cathedral churches had succeeded in winning for themselves throughout Christendom a monopoly of the right to make episcopal appointments. In the English kingdom during the Election of entire pre-Norman period the bishops were elected by the bishops in English clergy and the laity acting conjointly in the national assembly, the early -it being the joint right of the king and the witan to appoint prelates to vacant sees. During the latter part of this period, however, instances occur of the assertion of the right of capitular election. In the case of Ælfric and Robert in 1050 it is clear that the monks and canons of a cathedral church made an election in canonical form, and then petitioned the king and his witan to confer the bishopric upon. their nominee. Although at the time of the Conquest the tendency was in another direction, it suited the first two Norman kings to cling to the earlier custom. Not until the reign of Henry I. did the right to elect the bishops finally pass from the king and the witan to the chapters of the cathedral churches. The right of election which thus passed to the

1 Marca, De Concordantia, etc., 1. vi. c. 2; Schmidt, t. iv. p. 173; Hallam, M. A., vol. ii. p. 172 and notes. The clergy no doubt took the leading part in the election, but the ratification of the people was necessary to render it valid. See Father Paul on Benefices, c. 7.

As to the origin of chapters, see Rev. Canon Venable's article on "Cathedrals," in Enc. Brit., vol. v. p. 227, 9th ed.

8 Fr. Paul's treatise on Benefices, c. 24; Middle Ages, vol. ii. p. 183 and

note 2.

* Kemble's sixth canon states the

rule to be this: "The king and the wi-
tan had power to appoint prelates to
vacant sees."-Saxons in Eng., vol. ii.
p. 221. As to the actual practice in
particular cases, see Stubbs, Const.
Hist., vol. i. p. 134.

5 As to the history of this case, see
Freeman, Norm. Conq., vol. ii. p. 386
(Appendix I). In this appendix the
whole question of the appointment of
bishops and abbots in the early days is
fully discussed.

"The struggle between Henry I. and Anselm on the question of investiture terminated in a compromise which placed the election in the hands of the

days.

tion after the Con

quest.

tion of in

vestiture.

Their elec- chapters was coupled with a serious limitation in favor of the royal authority. It was required that the choice of the chapter should be preceded by the royal license, and that it should be followed by the presentment of the bishop-elect for the royal approval. The necessity for the royal license preserved in substance to the crown the right of nomination. Under the old system the crown possessed the right to press its nominee upon the witan; under the new, to press its nominee upon the chapter. But the bishop-elect, even after his due appointment by the chapter, and after the giving of the royal assent to his consecration, could not enter into the possession of the temporalities attached to his office without the act of the king as his feudal lord and sovereign. As the process of feudalization advanced, the estates of a bishop or abbot came to be looked upon as a fief or benefice held of the king by The ques- the tenure of military service.1 It therefore became necessary under feudal ideas that the bishop-elect should be invested (from "vestire," to put in possession) by his lord with the feudal estates annexed to his office. Upon the death of a bishop the ring and staff, the symbols of episcopal jurisdiction, were delivered to the king by a deputation from the chapter. When the vacancy was filled, these symbols were returned to the new incumbent as evidence of the fact that he had been fully invested by the king with his temporal possessions. Such was the general rule of investiture which prevailed throughout Christendom down to the famous controversy between the pope and the emperor which was finally Concordat settled by the concordat of Worms (1122), wherein it was agreed, "on the one hand, that the emperor should surrender to the church the right of investiture by ring and staff, grant to the clergy throughout the empire the right to free election, and restore the possessions and feudal sovereignties which had been seized during the wars in his father's time and his own; while on the other hand it was conceded by the pope that all elections of bishops and abbots should take place in the presence of the emperor or his commissioners, and that every bishop-elect in Germany should receive, by the touch of the sceptre, all the temporal rights, principalities, and posses1 See above, p. 271.

of Worms,

1122.

chapters of the cathedrals," etc. -
Stubbs, Const. Hist., vol. iii. p. 295.

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