WHEREAS marriages between persons within the prohibited degrees are voidable only by sentence of the ecclesiastical court pronounced during the lifetime of both the parties thereto, and it is unreasonable that the state and condition of the children of marriages between persons within the prohibited degrees of affinity should remain unsettled during so long a period, and it is fitting that all marriages which may hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity should be ipso facto void, and not merely voidable. Be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that all marriages which shall have been celebrated before the passing of this Act between persons being within the prohibited degrees of affinity shall not hereafter

be annulled for that cause by any sentence of the ecclesiastical court, unless pronounced in a suit which shall be depending at the time of the passing of this Act; Provided that nothing herein before enacted shall affect marriages between persons being within the prohibited degrees of consanguinity.

II. And be it further enacted, That all marriages which shall hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity shall be absolutely null and void to all intents and purposes what

soever.

III. Frovided always, and be it further enacted, That nothing in this Act shall be construed to extend to that part of the United Kingdom called Scotland.

IV. And be it enacted, That this Act may be altered or repealed by any Act or Acts to be passed in this present session of Parliament.

First Protest of the Bishop of Exeter. That the House do now resolve itself into a Committee upon the Church Discipline Bill.-June 4, 1839. Dissentient-1. Because though the ecclesiastical judges derive their power in foro exteriori, even in spiritual matters, from the state, their authority is independent of, and pre-existent to, the sanction of the temporal law, which merely adds temporal consequences to the ecclesiastical censures, the inflic

VOL. XXI. NO. IX.

tion of which is part of the power of the keys, vested in the Church by its Divine Founder, and exercised by it in the earliest ages. It follows, that the state, though it may refuse to add a civil sanction to the exercise of the

spiritual authority, cannot either grant that authority which does not spring from any human source, or take it away from any one, in whom the divine constitution of the Church has vested it. Consequently, this bill prohibiting in every diocese the exercise

4 D

of all spiritual jurisdiction, so far as any spiritual censure on a criminous clergyman is concerned, except that of the Court of Arches, doth exceed the power of human law, inasmuch as it affects to deprive bishops of that essential authority and inherent right which appertain to their sacred office by the Word of God; and which they, at their consecration, have promised and vowed that they, by the help of God, will faithfully and duly exercise by correcting and punishing such as be criminous within their respective dio

ceses.

66

This fundamental objection to the bill, is not removed by the 26th clause, which professes to save any authority over the clergy which bishops may now, according to law, exercise personally and without judicial process;" for judicial process is essential to the due exercise of episcopal authority, which, without it, ceases to be judicial, and must become either arbitrary or utterly ineffective. It is prescribed by the apostle. It was used and practised in the Church for 300 years before Christianity became the religion of any state, or its laws and discipline were enforced by any human government. Its necessity is recognised and asserted by all the soundest and ablest divines of the Reformed Church of England, who have written on the nature of the visible Church, by Bishops Jewell, Bilson, Hall, Bramhall, Stillingfleet, Jeremy Taylor, Beveridge, by Hooker, Field, Hammond, and many other luminaries of that age in which theological learning in England was most diligently and most successfully cultivated, not to mention other authorities of the last and the present centuries.

2. Because, to prohibit judicial process, even in the domestic forum of the bishop, and thereby, as was admitted in debate, to extinguish all episcopal jurisdiction, on the plea that the Church is now protected by the State, is to confound things essentially distinct; it is in effect, however laudably intended, to betray the Church, and to mislead the State. On the one hand, it forbids the exercise of the most sacred rights and duties of those to whom they are committed by the

word of God (being thus an act of direct persecution), and professes to transfer them to another, whom no human law can empower to exercise them in some of the highest particulars enumerated in the bill. Such are excommunication, deposition, and degradation, judgments which cannot be pronounced by any but those to whom the Divine Head of the Church hath committed the keys of his kingdom, and the power to bind and to loose.

On the other hand, while the bill thus seeks to arm a layman, by authority of parliament, with that spiritual sword, which not the highest lay potentate on earth can wield, it hides from the sovereign, and from the great council of the nation, that solemn duty which "He by whom kings reign, and princes decree justice," hath inseparably annexed to christian magistracy, the duty of upholding and enforcing the essential discipline of his Church-a duty which this state, so long as it acknowledges our own apostolic branch of that Church, can only discharge by sustaining and strengthening, in all things necessary, the government by bishops, a duty which the sovereigns of this realm have ever hitherto religiously observed, and which the legislature hath repeatedly recognised in its most solemn acts, especially in that great statute of 24 Henry VIII. c. 12, which most eloquently yet most accurately sets forth the constitution of this imperial realm, "governed by one supreme head, under whom a body politic, compact of all sorts and degrees of people, divided in terms and by name of spiritualty and temporalty, are bound to bear, next to God, a natural and humble obedience." part of the said body politic called the spiritualty, having always been thought, and being also, at this hour, found sufficient and meet of itself, without the intermeddling of any exterior person or persons to administer all such offices and duties as to their rooms spiritual doth appertain." And again, in those more modern statutes, which are, as it were, the landmarks of the constitution, the 1st William and Mary c. 6, passed by Mr. Somers, and the other enlightened patriots of that day, and embodying the contract between the

"That

sovereign and the people in the coronation oath; of which contract the "preserving the rights and privileges of the bishops and clergy" are a prominent part. And the Act of Union with Scotland, reciting and confirming as a fundamental article of the union, the act for securing the Church of England, in which it is especially provided that every king or queen, coming to the royal government of the kingdom of Great Britain, shall take and subscribe an oath that he will maintain to the utmost of his power, not only "the doctrine and worship," but "the discipline and government of the Church of England."

In accordance with this language of the laws have been the solemn declarations of our most illustrious princes, claiming indeed, as is their due by the laws of God and man, to be over all persons, and in all causes, both spiritual and temporal, supreme; yet disclaiming all authority of ministering God's word, of which the power of the keys, and of binding and loosing, is an especial part; in a word, having both the right and the duty to rule all estates and degrees of men committed to their charge by God, and restrain with the civil sword the stubborn and evil-doers.

3. Because the Dean of Arches, holding only a limited commission from his Grace the Archbishop of Canterbury, which commission does not extend to the original jurisdiction in any diocese whatsoever, would not have even the semblance of ecclesiastical authority to exercise the powers proposed to be given to him by this bill. Neither can this fundamental defect be supplied by any new and enlarged commission from the archbishop, who hath not himself a right of original jurisdiction (except in cases of nullities) in any other diocese than his own; such right being contrary to the laws of the primitive Church always hitherto held sacred-contrary to a canon of the Council of Nice, acknowledged by the laws both of the Church and State of England to be the first oecumenical council-contrary to the canonical law of England, as expounded even by Lynwood, the highest authority for interpreting that law, himself official

principal of the Archbishop of Canterbury of his day, who expressly says, "The archbishop cannot depute officials to hear causes in the diocese of any of his suffragans. For, as the archbishop himself cannot constitute an official in the diocese of another bishop, neither can he there exercise anything which concerns judicial powers. Indeed, the assumption by the Archbishop of Canterbury or his officers of original or concurrent jurisdiction in another diocese hath been repeatedly adjudged in the highest courts of England to be an usurpation, founded solely on his ancient claim of being Legatus Natus of the Pope. that the power which the present bill either recognises as already existing in the Court of Arches, or affects to give to it by its provisions, that court is not competent to exercise, unless the supremacy claimed by the Pope do indeed reside within this Church, in the Archbishop of Canterbury.

So

4. Because, by an unprecedented and unprincipled assumption of power, the bill professes to subject the clergy of the province of York, both those of the com-provincial bishops therein, and even those of the archbishop and metropolitan himself of that province, to the jurisdiction of the court of the Archbishop of Canterbury; whereas the province of York, and the jurisdiction of the archbishop and bishops thereof, are as wholly independent of the Archbishop of Canterbury as they are of any prelate in the most remote corner of the christian world.

5. Because the only advocate of the bill, who discussed its provisions, admitting in several important particulars that great principles were violated by it, rested its justification solely on the practical benefits sought thereby; thus, in conformity with that fatal policy which has been the bane of our times, proposing to sacrifice, in a matter of this high religious nature, principle to expediency; although the highest authority in the Church, by just before declaring that the actual result even of the present most defective state of ecclesiastical discipline is such as admits of little improvement through the operation of law in the general tone of clerical manners, had

precluded even the plea of any urgent necessity for making the sacrifice.

6. Because, on the soundest considerations even of expediency itself, the provisions of the bill are open to just objection, inasmuch as they have a direct tendency to destroy, or most grievously to impair, the wholesome authority of bishops, by making them, instead of judges, to become merely the prosecutors of their clergy, before a lay tribunal; or, it may be, to employ them as executioners of the sentences of that tribunal.

7. Because, although it may be true that bishops are not likely to be skilled in legal science, they must be more competent than laymen can be expected to be to decide those questions of ecclesiastical discipline, which, in the exercise of their spiritual jurisdiction, would most commonly come before them. As ecclesiastics they must be most competent to decide whether, and in what degree, the ecclesiastical duties of a clergyman have been violated; more particularly because many things are criminal in a clergyman which in a layman would be merely indecorous, and not always even indecorous; and many things are punishable by the canon law, and the principles of ecclesiastical discipline, to which no principle of temporal law is even applicable. Again, and in a still higher degree, bishops must be more competent than lay judges to decide in cases where the question relates to the soundness of doctrines taught or sanctioned by a clergyman; espeially as the constitution of the Church has provided him with an ecclesiastical council to assist him in his decisions; and, meanwhile, he can experience no difficulty in obtaining the best legal advice, enabling him to dispose of questions of law as satisfactorily as any ordinary court.

Sthly and lastly. Because, if this bill shall pass into a law, that most estimable and venerable body of men, the clergy of England and Wales, will be reduced to a worse condition than any other class of her Majesty's subjects, being made liable to answer to charges affecting their highest religious and civil rights, their feelings and characters as men, their functions as

christian ministers, before a remote judicature, which, because it is remote, can never inspire confidence, but will be found, in practice, at once to prevent the prosecution of real delinquency, and to rob calumniated innocence of that best protection, the known characters of the accused and the accusers, as well as of the witnesses by whom the accusation is sustained or repelled.

Second Protest against the Third Reading of the Church Discipline Bill. —July 25, 1839.

Dissentient-Because to pass a bill on a subject of so much moment, of which by reason of its great, manifest, and manifold imperfections, it is acknowledged by its authors and warmest advocates that it cannot be expected, and ought not in its present state to become an act of the legislature, is derogatory to the honour of this House, and would be a precedent of a most dangerous character, if the glaring unfitness of such a proceeding did not forbid all apprehension that it will ever hereafter be imitated.

H. EXETER.

Protest of Lord Wynford. Dissentient-Because, owing to the long pleadings and the mode of taking evidence in the ecclesiastical courts, the expense and delay of these courts are so great, that many clerks who have misconducted themselves have remained unpunished in consequence of no person being willing to bear these expenses and delays.

Because, from the first establishment of the English church, the duty of deciding on charges made against clerks had belonged to the bishops; that duty cannot be taken from them without greatly diminishing the utility of and the respect in which bishops are held.

Because it is admitted that this bill wants many corrections, and it is unwise at any time to send an important bill from this house to the House of Commons, and particularly so at this late season of the session, when the Commons have not sufficient time to amend it. WYNFORD.

Clauses to be proposed by the Bishop of Exeter.

Clause A.-And be it enacted, that from and after the passing of this act any person intending to institute such suit against any such spiritual person as aforesaid, shall deliver or cause to be delivered a written statement of the offence or offences which he charges against such spiritual person, and of the time and place at which each and every such offence or offences is or are alleged to have been committed, to the bishop of the diocese.

Clause B. And be it enacted, that such bishop shall, within fourteen days after receiving such statement, cause a copy thereof to be delivered to or left at the last known place of residence of the spiritual person charged with such offence or offences; and shall nominate and appoint, by commission under his seal, three spiritual persons beneficed within the said diocese, one of whom shall be the archdeacon or rural dean, to inquire concerning the matters contained in such statement.

Clause C.-And be it enacted, that such commissioners appointed as aforesaid shall cause a notice in writing to be delivered to such spiritual person and to the said party so intending to institute such suit as aforesaid, requiring them to attend, with their respective witnesses and proofs, at such time and place as the bishop shall appoint, before such commissioners, for the purpose of enabling them to inquire in a summary manner whether there is probable and sufficient ground to proceed with the said suit against the said spiritual person accused or charged as aforesaid; and such commissioners are hereby authorised and empowered to examine upon oath (which oath any one of them is hereby empowered to administer) any witnesses which may appear before them touching such alleged offence or of fences.

Clause D.-Clause giving power to compel attendance of witnesses, &c.

Clause E. And be it further enacted, that such commissioners, or the major part of them, shall make return under their respective hands and seals to the bishop of their decision upon the said

inquest, whether they find that there are or are not probable and sufficient grounds to proceed in such suit against the said spiritual person, and that if such commissioners or the major part of them shall make return as aforesaid that there are such probable and sufficient grounds, then the bishop shall, within fourteen days after such inquest shall have been returned to him as aforesaid, cause a notice in writing to be delivered to or left at the last known place of residence of such spiritual person, and to the said party so intending to institute such suit as aforesaid, requiring them to attend, with their respective witnesses and proofs, before the said bishop, or before his official in that behalf by him lawfully appointed, at such time and place as the said bishop or his official may appoint, for the purpose of enabling the said bishop or his said official to inquire into and to decide whether or not the said spiritual person is guilty of the offence or offences charged against him by such party as aforesaid; and the said bishop or his said official is hereby authorised and empowered, with the advice and assistance of his said official or of any assessor or assessors, and especially of such as are directed and specified in the 122d Canon, to hear the statements of the respective parties, and to hear and examine upon oath (which oath the bishop or his said official is hereby empowered to administer) any witnesses that may appear before him on such occasion, touching the said alleged offence or offences, and to adjourn the hearing and examining thereof from time to time as to him the said bishop or his said official shall seem necessary or expedient, and to decide whether or not such spiritual person hath been guilty of the said offence or offences, and to determine and adjudicate upon the said charges, and to pronounce such judgment and sentence as any spiritual court is now by law empowered to pronounce; and all such judgments and sentences shall be good and effectual in law. Provided also, that any judgment and sentence so pronounced by the said bishop or his said official shall be entered and remain of record in the registry of the