Obrazy na stronie
PDF
ePub

XVIII.]

SIR JOHN CAMPBELL'S REPLY.

349

show that the recommendations of candidates by the Crown were a congé d'élire. Yet words have a meaning; even in the election of bishops, the congé d'élire is one thing, the letter missive, which contains the recommendation, is another thing. He allows that till 1553 there is no trace of interference on the part of the Crown; but there may have been a change by act of parliament for did not Lord Mansfield say that in certain cases he would suppose an act of parliament? Or there may have been some composition between the Crown and the Chapter; there may in short have been anything that any one chooses to guess, but of which law and history know nothing. A man must-so at least the layman thinks—have been very hard up before he could talk in this way; but the theological appeal is even finer. By no Protestant Chapter of Exeter has this right ever been questioned.' Why was not Edward the Sixth's illegal nominee elected or admitted or done something to? If there was any doubt about it, it arose from his being succeeded by a sovereign not of the Protestant religion.' This and that might have happened before the Reformation'; Sir John Campbell even lets us into some of his own 'beliefs' as to times before the Reformation.' 'But we are now considering,' he proudly adds, 'what has been done in Protestant times, when the Sovereign is Head of the Church.' As Sir John Campbell in 1839 believed the Sovereign to be Head of the Church, he perhaps also believed that the Sovereign could not marry a subject, and was one of the Estates of the Realm.

[ocr errors]

Lastly comes the Judgement, dry, clear, and every word to the point. The Court was not moved by Sir John Campbell's Protestant rhetoric; there is not a word about the Reformation or the Head of the Church in that calm statement of fact and law. The Court will hear nothing of Sir John Campbell's possible act of Parliament, of his possible composition between Crown and Chapter. It is ruled that Coke and Hargrave may err, and that in this case they have erred. The facts are stated, dryly but

accurately; the natural inference is drawn that the Crown has no right in the matter; further it is ruled that, if it had had any right, quare impedit and not mandamus was the way to assert it.

Thus did a body of Englishmen, by fair trial at law, recover an ancient right, after an usurpation on the part of the Crown which had lasted two hundred and fifty years. Now if that body of Englishmen had been something other than an ecclesiastical corporation, if for instance it had been a municipal or even an academical corporation, I venture to think that their successful resistance to a long-standing encroachment on the part of the executive would have been hailed at the time and remembered afterwards as a distinct victory of English freedom and English law. But, as the assertors of freedom and law happened to be a cathedral chapter, the matter aroused but little public attention; it seemed to be a mere uninteresting ecclesiastical squabble, and it is now most likely pretty well forgotten. I might not have thought about it again myself, if my thoughts had not been specially called to it in late studies on the history of the city and church of Exeter. Not the least remarkable part of the story is what followed the judgement. The Minister was wholly beaten in the trial. Before the trial he had had to withdraw point after point; he had been driven to give up the claims brought in by Charles the Second and continued by every sovereign since, and to fall back on the less imperious practice of Elizabeth and Charles the First. And the result of the trial had shown that even for this milder claim there was not a shadow of legal ground. No attempt was made to disturb the judgement in any way, or to try whether an attempt at quare impedit might be more lucky than an attempt at mandamus. It was silently acknowledged that the pretensions of the Crown to dispose of the deanery of Exeter by any process direct or indirect had no foundation in law. But it might be possible to change the law, and to make that rightful

XVIII.] THE JUDGEMENT AND WHAT FOLLOWED.

351

which the Judges had declared to be wrongful. In most cases it would be thought a somewhat strange proceeding thus to make the sentence of a court of law of none effect by a legislative act immediately following it. It would hardly be thought consistent with liberal and progressive policy to take away the rights of any man or body of men the very moment that the law had declared that they were his or their rights. Sir John Campbell, in the last sentence of his reply, had made an appeal to expediency. The right -to interfere illegally with capitular elections-was a right which he believed the Crown for many reigns had usefully exercised for the benefit of the Church.' Such an argument was hardly in its place in a court of law, though it would have been quite in its place in either House of Parliament. Yet when this useful right had just been declared to be an usurpation, it might have been only decent to give the lawful electors a fair trial, to see whether deans freely elected by the Chapter proved much worse than deans elected under a recommendation from the Crown. A generation or so later, if capitular electors had shown themselves very foolish or very corrupt their right might have been taken from them. But no; one free election had been held; but there should never be another. The judgement could not be disturbed; Mr. Lowe could not be turned out of his deanery; but it might be ruled that he should not have a successor chosen after the same fashion. Within two months after the judgement of the Court of Queen's Bench, an Act of Parliament was brought in and passed, by which the Old-foundation deaneries were put on the level of the New, and their future holders were to be directly nominated by letters patent from the Crown.

The case immediately at issue touched only the single deanery of Exeter, and I am not able to say exactly what the course of things might have been if the same question had arisen in some other old-foundation church. But we may be pretty sure that the same general principles would

have equally applied to any other church of the class. All the old-foundation churches have constitutions drawn on essentially the same lines, but with small peculiarities of detail in each. I should expect that in any one of them we should find that the Bishop was patron of the deanery, and that he issued his licence to the Chapter to elect. I can conceive the statutes of different churches differing as to the qualification of the Dean, whether he need be already a member of the Chapter, or whether he need be a residentiary in churches where the residentiary system is older than it is at Exeter. And we must remember that at Bangor and Saint Asaph the Bishop always appointed the Dean, just like the other dignitaries, without any election by the Chapter. I cannot conceive the Crown having anywhere any part or lot in the matter, except, as in the York case, during the vacancy of the bishopric, when the bishop's patronage is of course for the time vested in the Crown. It would be well worth the while of any ecclesiastical antiquary to compare the experiences of Exeter with those of other churches of the same class. There must be some curious analogies with our Exeter story, not only in the case of deaneries, but in the way, whatever it was, by which the Crown came to name the canons residentiary of Saint Paul's, a thing without parallel in any other old-foundation church. But the Exeter case is enough by itself, as illustrating some remarkable points in ecclesiastical history, and, as I venture to think, suggesting some reflexions of a wider kind than anything touching the powers of a single ecclesiastical body. The old saying of our Chronicler, The more they spake of law, the more they did unlaw,' seems singularly applicable to men who, as soon as a right is proved by witness of law and fact, at once proceed to take it away by an abuse of the legislative power.

[ocr errors]

XIX.]

THE GROWTH OF COMMONWEALTHS.

353

XIX.

THE GROWTH OF COMMONWEALTHS.*

THERE is much talk just now in the world about changing monarchies into republics, and about changing republics into monarchies. To judge from the way in which people speak about the current politics of France and Spain, one might think that a change of this kind was the easiest thing in the world. And one might think that it was not only the easiest thing in the world, but that it was also a simple. and definite thing, something which could be done within the four corners of an Act of Parliament, or voted by the briefer Yea or Nay of a real or a sham plebiscitum. The modern history of France and Spain is perhaps beginning to give people a dim notion that there may be many kinds of republics and many kinds of monarchies. And when we constantly see in polite newspapers such a phrase as 'Conservative Republic,' it may be that the general public is beginning to awake to the fact that a republic is not necessarily a state of things in which everybody picks

In

* [The moment when this was written will be seen at once. 1873 the French republic was something new, and was looked on as unlikely to last. And there was also a Spanish republic, which has not lasted. All this is another instance of the great law that no general proposition can be made about forms of government, and that everything turns on time, place, and circumstance. And I hope that there are now more people than there were then who would at once support constitutional kingship-or queenship-on reasonable grounds, and who would at the same time see nothing necessarily wicked in those who may prefer another form of Executive. Certainly the word 'democracy' no longer awakens the horrors that it once did. There is even a Tory democracy.']

A a

« PoprzedniaDalej »