§ 40. C. ASSISTANTS IN THE EXERCISE OF GOVERNING CONSECRA POWERS AND ALSO IN THAT OF POWERS OF TION. Coadjutors. In the earlier middle ages it was the custom in England as on the continent to give a representative to a bishop who had become physically or mentally unfit to discharge his duties. The position of such representatives in the older times varied in different cases. For the most part, they were only appointed for the duration of the diocesan's incapacity, were not in bishop's orders, and represented the incapacitated prelate only in respect of his powers of jurisdiction and the management of the property attached to the bishopric, or in respect of one of these two departments, whilst his other functions were performed by the bishop of a neighbouring diocese or by a suffragan. In England this older usage seems to have maintained its ground even in the later middle ages. The representatives given the bishop in case of sickness were, from the thirteenth century, entitled coadjutors. On the continent it became more usual as time progressed to appoint, in case of episcopal incapacity, coadjutors of episcopal rank, to give them the power of 2 the direction and authority of the bishop of that see, and perform all other functions peculiar to the order of bishops. All the laws as to English ordinations are to be observed. Letters of orders are to be signed by the colonial bishop as commissary of the bishop for whom he officiates, and sealed with the seal of the bishop of the diocese. Colonial bishops commissioned under this act have no jurisdiction in the united kingdom. 16 & 17 Vict. (1853) c 49. Colonial bishops may also be commissioned in the same way and with the same effect by colonial bishops. [According to 19 & 20 Vict. (1856) c 115 s 4 the rules mentioned were to be applicable to the then bishops of London and Durham after their resignation.] 37 & 38 Vict. (1874) c 77 Colonial Clergy Act. By s 8 ordinations by a bishop acting under commission, if he is in communion with the church of England, are effective even if the commissioned bishop has not been bishop in an English colony or appointed by royal letters patent. s 13 exempts East Indian bishops from the provisions of 53 Geo. III c 155 and 3 & 4 Gul. IV c 85 (touching bishops in the East Indies) and from anything in any letters patent issued as mentioned in these acts; they may perform episcopal functions, not extending to the exercise of jurisdiction, in any diocese at the request of the bishop thereof. 1 On the nomination of the abbot of Abingdon Siward, as coadjutor of the archbishop of Canterbury (circ. 1043) cf. Hist. Abingdon (Rer. Brit. Scr. No. 2) I, 451; William of Malmesbury, Gesta Regum (Rer. Brit. Ser. No. 90) I, 239. 2 Gibson, Codex 2nd Ed. p. 137. Cf. Regist. Epist. Peckham (Rer. Brit. Scr. No. 77) I, 47, 94, 203, 205, 253, 273, 275, 301, 302; Northern Registers (Rer. Brit. Ser. No. 61) p. 406.-On the appointment of coadjutors for officers of the church other than bishops see Gibson, l.c. pp. 137, 901, Reg. Ep. Peckham I, 57, II, 654; cf. II, 658. a Phillimore, Eccles. Law 99 ff. representing the diocesan bishop in all respects, and to grant them, at the same time, the right of succeeding to the see in question.3 By an imitation of this latter proceeding the appointment of coadjutors in bishop's orders and with a right to the succession has been introduced by statute to meet the case of permanent mental infirmity of any bishop. If such infirmity be credibly established, 3 Richter, Kirchenrecht § 140. Hinschius, Kirchenrecht II, § 89. 32 & 33 Vict. (1869) c 111 An Act for the relief of Archbishops and Bishops when incapacitated by infirmity. [According to s 16 the act was only temporary; its effect was prolonged by 35 & 36 Vict. (1872) c 40; it was made permanent by 38 Vict. (1875) c 19.-By s 15 an earlier act, 6 & 7 Vict. (1843) c 62 is repealed. According to the latter act, in case of incapacity from mental infirmity, a bishop was appointed to perform the episcopal functions and a spiritual person to assist in the administration of the temporalities, but without right of succession to either of those appointed.] s 1. Short title: The Bishops Resignation Act, 1869. s 2. In case it is represented to the sovereign by the archbishop in respect of a bishop subordinate to him or of himself that such bishop or archbishop is desirous of resigning owing to age, or mental or some permanent physical infirmity, then the sovereign, if satisfied of the incapacity and that the archbishop or bishop has canonically resigned, may by order in council declare the see vacant, and the vacancy may thereupon be filled. The retiring archbishop or bishop receives of the income or £2000, whichever may be greater; the sovereign may by order in council assign him any episcopal residence hitherto occupied by him; the new bishop need not pay fees and charges usually payable on accession to an archbishopric or bishopric (other than necessary expenses of election and consecration) until the death of the retiring archbishop or bishop. s 3. If an archbishop believes that any bishop in his province is incapacitated by permanent mental infirmity from the due performance of his duties, he shall call to his aid two bishops of his province, make inquiry and certify the result of that inquiry under seal to one of the principal secretaries of state. s 4. The king may then grant the chapter licence to elect a bishop coadjutor, the licence being accompanied by letters missive. The election shall then take place in the same way as a bishop's election (cf. append. X). The elected person shall be confirmed and consecrated, as if the bishopric were vacant. s 5. The incapacitated bishop and the coadjutor have the following relative positions: (1) The bishop retains his rank, style and privilege. (2) He retains the temporalities exclusive of patronage and of a yearly sum to be paid the coadjutor. (3) The coadjutor shall not be installed or sue the temporalities out of the sovereign's hands; he has no claim to a seat in the house of lords; he shall be styled bishop coadjutor' of the diocese, may subscribe himself by his usual signature with the addition of bishop, but not by the name of the diocese. (4) He is not required to pay any fees except the necessary expenses of election and consecration. (5) Immediately on his consecration the spiritualities and the patronage pass to him, as if he were the sole bishop. (6) He receives £2000 a year out of the income of the bishop. (8) On the death of the bishop the coadjutor succeeds with the same ceremonies (except consecration) as if the king had sent licence and letters missive. (9) No vacancy is created in the spiritualities when the bishop dies, but such spiritualities remain vested in the coadjutor if succeeding to the deceased bishop. s 7. If the bishop has been found by due process of law to be of unsound mind, the inquiry by the archbishop may be dispensed with. s 10. If a coadjutor dies or retires, the king has the same rights as on receipt of a certificate that a bishop is incapacitated (see s 3). s 11. The act applies to Sodor and Man. But if the bishop retires his pension is fixed at £1000; the salary of a coadjutor is likewise £1000; the bishop of Sodor and Man shall not be translated to any diocese of which a coadjutor bishop has been appointed. the sovereign may send to the chapter leave to elect, accompanied by letters missive. The election and consecration of the coadjutor then takes place as in the case of a diocesan bishop. All the official powers and the patronage of the bishop represented pass to the coadjutor. But if the represented bishop is an archbishop, the archiepiscopal jurisdiction is exercised not through the coadjutor but through the bishop of the province who is senior in rank. The incapacitated bishop always remains in possession of the temporalities, exclusive of the patronage. On his death the coadjutor becomes his successor; the sovereign, however, may, if the deceased bishop was an archbishop or the bishop of London, Durham or Winchester, translate another bishop to the vacant see, in which case the coadjutor becomes the successor of the translated bishop. § 41. D. ADMINISTRATION OF AN ARCHBISHOPRIC OR BISHOPRIC DURING VACANCY.a From the time of William II onward, the sole interruption being during the reign of Stephen,3 the English kings exercised the right of administering the temporalities during vacancy in an archbishopric or bishopric, and receiving for the crown the revenues of s 12. A coadjutor may be appointed in the case of an archbishop being incapacitated. The provisions of the act then apply with the following additions and exceptions: (1) At the head of the commission of inquiry is to be a bishop of the province determined by the sovereign under sign manual on its being certified to him by any two bishops that the archbishop is incapacitated by permanent mental infirmity from the due performance of his duties. (2) A coadjutor for Canterbury receives £4000 a year, for York £3000. (3) That the archiepiscopal jurisdiction capable of being exercised by the archbishop shall be exercised by the bishop of the province who is senior in rank. s 13. If the coadjutor was appointed for Canterbury, York, London, Durham or Winchester, the king may exercise the same right of translation as if no bishop coadjutor had been appointed, so that such right be so exercised as to leave an archbishopric or bishopric vacant for the bishop coadjutor. The coadjutor then succeeds to the vacant see as if he had been translated to it. 1 Cf. § 4, note 19. On the usage in the time of William I compare Ordericus Vitalis (Ed. of Le Prevost) II, 200 Book IV c 6: Nam dum pastor quilibet completo vitae suae termino de mundo migraret, et Ecclesia Dei proprio rectore viduata lugeret, sollicitus princeps prudentes legatos ad orbatam domum mittebat, omnesque res Ecclesiae, ne a profanis tutoribus dissiparentur, describi faciebat; on the usage in the Anglo-Saxon period cf. l.c. III, 313, Book VIII c 8. Cf. § 4, note 22 on Henry I's concession. It is perhaps to be taken merely as a renuntiation of the appropriation of the substance not of the interim fruits. If, however, the words of the charter are to be regarded as a renuntiation of the fruits as well as the substance, the concession was not in practice observed in Henry's time. Stephen's concession in his charter, 1136 (appendix II). Cf. also the report of Henry of Huntingdon (§ 4, note 31). Phillimore, Eccles. Law 77 ff. the estates. This corresponded to the right of usufructuary administration of a fief during a vassal's minority. Sometimes in the earlier days the kings abused their right to the interim revenues by keeping the see empty for years, so as to enjoy the fruits as long as possible. It was in repudiation of this practice that Henry II, in the compact of 1176, promised not to keep the property of a bishopric in hand for more than a year, whilst John in the charter of 1214 had to give an assurance that he would not unduly delay to grant licences for new elections.5 The kings originally entrusted the administration to special custodes, afterwards, from the reign of Henry II onwards, to escheators, officers appointed to deal with reverting fiefs. By 14 Ed. III (1340) st. 4 it was laid down that the chapter or convent was entitled before any one else to take the temporalities of the bishopric in farm during vacancy. Every new bishop had to sue from the king delivery of the temporalities of his see; many reservations were attached thereto, which were used by the kings in the later middle ages to thwart papal encroachments Of later confirmations and closer limitations of this right the following are to be mentioned in particular: : Const. Clarendon c 12 (append. IV). Limitation to one year in the compact of 1176 c 2 (§ 4, note 54). John's charter of 1214 (append. VI), Magna Carta of 1216 c 5 (append. VII, note 5); cf. Magna Carta of 1215 c 46 (append. VII). Cf. also the complaint of selfish administration, contrary to the assurance given by Magna Carta, at the council of Merton, 1258 (Wilkins I, 739, after Ann. Burton). 52 Hen. III (1267) Stat. de Marleberge c 16: De hereditatibus autem quae de domino Rege tenentur in capite sic observandum est; ut dominus Rex liberam inde habeat seysinam sicut prius consuevit; nec heres vel alius in hereditatem se intrudat priusquam illam de manibus Domini Regis recipiat, prout huiusmodi hereditates de manibus ipsius et antecessorum suorum recipi consueverint. Et hoc intelligatur de terris et feodis in ratione servicii militaris vel serjancie seu juris patronatus que in manu Regis esse consueverunt. 3 Ed. I (1275) Stat. Westminster I c 21: Endreit des teres des heyrs dedenz age que sont en la garde lur Seygnur, Purveu est que les gardeins les gardent et sustengnent saunz destruction fere en tote riens; Et que tels maneres de gardes seit fet en tutz pointz, solum ceo que il est, contenu en la Graunt Chartre des fraunchises le Rey Henri piere le Rey que ore est, e issi seit usee desoremes; et par mesme la manere seient gardez les Ercheveschees, Eveschees, Abbeyes, Eglises, et Dignetiez en tens de Vacacions. F. Cf. further Stat. Prerogativa Regis (probably dating from the time of Edward I and before Britton and Fleta, thus 1272-90, perhaps only a private essay, W. Maitland in Engl. Historical Review, 1891, p. 367; printed in Statutes of the Realm I, 226) c 16, Capitula Escaetrie, sub fin. (of unknown date; printed 1.c. I, 238 ff.) and the documents cited in Friedberg, De fin. (cf. § 60, note a) p. 221. 5 Cf. above, note 4. 6 7 Gneist, Engl. Verfassungsgeschichte § 12. cc 4, 5. The escheators who manage the temporalities of prelates during vacancy, shall not waste them. The chancellor and treasurer with others of the council may, on receipt of full value and upon sufficient security given, let the voidances, before all others, to the dean and chapter, prior or subprior, prioress or subprioress. If the latter do not agree to give the full value, the voidances are to be administered by escheators.-21 Hen. VIII (1529) c 13 prohibits the taking of farms by spiritual persons; by s 4 exempted from the operation of the act are the temporalities during vacancy of bishoprics etc. ' and other collegiate, cathedral and conventual churches.' in respect of rights of appointment. Even at the present day the crown exercises the right of usufructuary administration of the temporalities of vacant archbishoprics and bishoprics. The guardian of the spiritualities during vacancy was, in the twelfth century, the chapter, and this was in accordance with the usage 9 which prevailed on the continent. In the course of the thirteenth century disputes arose in many parts of England between the chapters and the archbishops, the latter claiming the interim guardianship of the spiritualities. The archbishops ultimately gained the right, either by prescription or by composition, in respect of most sees; 10 they exercise it in person or by their commissioners. But the old right of the chapters has been maintained in some places; in particular, the dean and chapter are guardians of the spiritualities when an archiepiscopal see is vacant. § 42. 6. ARCHDEACONS.a ARCHDEACONS have been mentioned in England since the beginning of the ninth century. In the period of the Norman conquest their 8 More in Stubbs, Const. Hist. III, 317 ff. c 19 §§ 383 ff. 9 Cf. Richter, Kirchenrecht § 136. 10 Compare, e.g. in regard to Lincoln: No. 36 Ann. Monastici) III, 187, 189. Peckham (Rer. Brit. Scr. No. 77) I, 96; II, 632. Ann. de Dunstapl. (Rer. Brit. Scr. Wilkins I, 756; London: Reg. Ep. Winchester: l.c. I, 98; Worcester: l.c. The first archdeacon mentioned in England is Wulfred, afterwards (805) archbishop of Canterbury. Stubbs, Const. Hist. I, 254, note 4, c 8 § 87. He puts name and title to a resolution of the council of Clovesho, S03 (Haddan and Stubbs, Councils III, 546) and to a deed of gift of Aethel heard, archbishop of Canterbury, dated 805 (Kemble, Cod. dipl. I, 231 f.). The document relating to the alleged council of Beccanceld, 798, where his signature also appears, is not genuine (Wilkins, Concilia I, 162; Haddan and Stubbs, Counc. III, 518).— Florentius Wigorniensis, Chron. (Monumenta Historica Britannica I, 587) mentions an archdeacon Aelmaer who is said to have betrayed Canterbury to the Danes in 1011. In the Anglo-Saxon Chronicle (Rer. Brit. Scr. No. 23) I, 266, 267, from which Florentius draws, the traitor is not designated archdeacon.' From the context this Aelmaer or Aelfmaer seems to be identical with the abbot of the same name of the monastery of St. Augustin at Canterbury, whom the Danes set free after the taking of the town.-The fragmentum de Institutione Archidiaconatus Cantuariensis (printed in Wharton, Anglia Sacra I, 150; written apparently shortly after the death of archbishop Peckham, 1292) contains the statement that, in the diocese of Canterbury, an archdeacon was first appointed under Lanfranc in place of the earlier bishops of St. Martin at Canterbury who until then had occupied an archidiaconal position. (Cf. § 39, note 2.)-As to the probable existence of an archdeacon of the abbot of St. a Gibson, Of Visitations Parochial and General. London, 1717.-Phillimore, Ecclesiastical Law 236 ff.-Report of the 'Committee on the Duties of Archdeacons,' of the lower house of Convocation. Appendix, No. 183 to the Chronicle of the Convocation of Canterbury, 1885. |