the archbishop, on the 21st January, 1283, invited a new provincial council to meet at London and summoned to it for the first time expressly two proctors to represent the inferior clergy of each diocese. The constitution of the council as contemplated in the summons to the council of London in 1283, and also in the royal summonses for the national council of 1294 and the parliament of 13th November, 1295,89 has been preserved in the main-apart from the later extinction of monastic representatives-in the provincial council of Canterbury down to the present time.

The convocation of the province of York attained to fixed form about the end of the thirteenth century. Membership was governed as in the convocation of Canterbury, with the difference, however, that in York for each archdeaconry two representatives of the parochial clergy were summoned to convocation.40 41

habita Northamptoniae

tum

man

to each of the archbishops had been: suffraganeos vestros et abbates, priores et alios singulos domibus religiosis praefectos, necnon et procuratores decanorum et capitulorum ecclesiarum collegiatarum venire faciatis coram nobis Stubbs, Sel. Ch. 466.-Similar refusals to grant taxes of the property of those not represented had already occurred in 1240 (cf. above, note 30) and 1254 (cf. § 21, note 13). 38 Quoniam in congregatione propter absentiam maximae partis cleri tunc temporis modo debito non vocati, tum propter alia diversa, ad plenum non potuit responderi; de communi omnium tunc praesentium consilio extitit ordinatum, quod clerus totus Cantuariensis provinciae congregetur. Quocirca damus, quatenus episcopos Cantuariensis ecclesiae suffraganens omnes et singulos, necnon abbates, priores ac alios quoscunque domibus religiosis praefectos, exemptos et non exemptos, decanos ecclesiarum cathedralium et collegiatarum, ac archidiaconos universos per Cantuariensem provinciam constitutos citetis, quod compareant coram nobis seu conveniant . Londoniis a die Paschae in tres septimanas Singuli insuper episcopi, sicut in dicta congregatione provisum fuerat, citra diem praedictum clerum suae dioecesis in aliquo loco certo congregari faciant, et eidem quae ex parte regis nobis proposita fuerant diligenter exponi procurent, ita quod ad dictos diem et locum Londoniis de qualibet dioecese duo procuratores nomine cleri, et de singulis capitulis ecclesiarum cathedralium et collegiatarum singuli procuratores sufficienter instructi mittantur, Registrum Epist. Peckham (Rer. Brit. Scr. No. 77) II,

508; cf. also II, 523, 536, 591.

39 Stubbs, Sel. Ch. 480 and above, § 21, note 19. To the intervening parliament, which met on the 15th August, 1295, deputies from the counties and of the inferior clergy were not summoned. Stubbs, Const. Hist. II, 133 c 14 § 180. -In 1297 the archbishop summoned, besides the usual members, the precentors, chancellors and treasurers of the cathedral chapters. Stubbs, Sel. Ch. 488.-In other cases also, for as long as a century after this time, minor irregularities

Occur.

40 The summoning of two representatives from each archdeaconry has a precedent in 1279. Summons of the archbishop of York to an archdeacon, 1279 (Wilkins, Concilia II, 41): quod quilibet archidiaconus pro subsidio domino regi faciendo suos subditos convocabit, vota et liberalitates super hoc attentis et votivis inductionibus scrutaturus; ita quod die Veneris prox. ante festum sanctae Scholasticae virginis, quilibet archidiaconus cum duobus dignae eminentiae viris, et unico ipsius archidiaconatus decano, nobis apud Pontemfract. ubi personaliter erimus, Deo dante, responsum pro communitate totius archidiaconatus faciat ; .--In the northern province deviations

Almost simultaneously began the separation of convocation, which hitherto had been one body, into different deliberative houses. A precedent for such division is found at the legatine council of Winchester, 7th of April, 1141, where the legate consulted separately the bishops, the abbots and the archdeacons.43 The clergy invited to the parliament of 1296 resolved themselves for the purpose of deliberation into four parties: the bishops, the monastic representatives, dignitaries (omnes in dignitatibus constituti, deans, archdeacons and so forth), chosen representatives of the clergy (omnes procuratores communitatis cleri). The same division was observed in the synod at St. Paul's, 14th of January, 1297.45 But even in the ensuing period the general rule was deliberation in common; it was not from the first but by gradual process and for particular subjects of discussion that separation took place; moreover, the deliberative body to which the various kinds of members belonged was only determined by degrees.46 Not until the beginning of the thirteenth

44

from the normal constitution of the synod occur down to the time of the reformation.

41 Cf. § 55 for the present constitution of the provincial councils of Canterbury and York. A list of those summoned in the fifteenth and eighteenth centuries to the convocation of Canterbury, in the fifteenth, sixteenth and seventeenth to the convocation of York, will be found in Wilkins, Conc. I (Dissertatio de veteri et moderna Synodi Anglicanae Constitutione) pp. xi ff., of those in the prov. synod of Canterbury after the dissolution of abbeys, in Joyce, Sacred Synods 450. Rural deans are not mentioned as members of the provincial synods. (Contrary opinion, without proofs, in Kennet, Paroch. Antiq. Ed. 1818, II, 364) The archipresbyteri sometimes mentioned probably signify here the deans of cathedral or collegiate churches. Joyce 290.-On the chapters of the monastic orders cf. Stubbs, Const. Hist. II, 203 f. c 15 § 198.

For what follows compare Joyce, Sacred Synods 294 ff., 307.

43 Narrative of William of Malmesbury, who was present, Hist. Nov. (Rer. Brit. Scr. No. 90) Book III § 492: . . sevocavit in partem legatus episcopos, habuitque cum eis arcanum consilii sui; post mox abbates, postremo archidiaconi convocati;

314.

Bartholomaeus de Cotton, De Rege Edwardo I (Rer. Brit. Scr. No. 16)

5 Barth. de Cotton, l.c. 317. Cf. also answer of the clerus and prelates of Canterbury to four articula a rege petita in the year 1298 (Wilkins, Concilia II, 236): E nous mentenant sour cestes prieres par chescun degre du clerge par eux, sicome costom est, estreytement counseillames

46 For example, at the council of London, 1370, by desire of the archbishop the inferior clergy twice withdrew to deliberate apart: 11 Kal. Febr. Rogavit (the archbishop) dictos Religiosos, quod se insimul traherent ad aliquam partem Ecclesiae et Clerum suae Dioeceseos et Provinciae quod ad aliam partem eiusdem Ecclesiae se traherent, tractarent et deliberarent. 4 Kal. Febr. Iniunxit hoc modo Procuratoribus Cleri et religiosorum exhortando eosdem quod se ad partes transferrent (Wilkins III, 82); 1376, on two days dominus cum confratribus suis, exclusis omnibus aliis personis secrete deliberavit (Gibson, Synodus 79, Ed. 1854 p. 60); 1379: Praecepit (the archbishop) quod procuratores praedicti exirent (Gibson, l.c. 80, Ed. 1854 p. 61); at the council of London, 1399: tractabant ipse dominus et reverendi patres, episcopi antedicti, per se de negotiis omnibus ecclesiae; aliis praelatis et procuratoribus cleri seorsim separatis (Wilkins III, 239); and similar cases.

In 1428 we find, as an exceptional case, the separation of the bishops from the lower prelates: Aliis Praelatis ad tunc ibidem in multitudine copiosa

เ

century did the development alike in the provincial synod of Canterbury and in that of York culminate in the arrangement that, after the joint session at opening, only bishops and abbots should remain behind as an upper house' whilst all the rest who had appeared withdrew to deliberate and resolve apart as a 'lower house' of convocation. But in particular and suitable cases joint discussion took place even at a later time (e.g. in proceedings before the synod sitting as a heresy court), and a survival of this usage has remained down to the present day.17 47

As the councils of the church gradually succeeded in excluding the laity from all participation, there grew up, in connexion with that exclusion and with the severance of the clergy and the laity in other domains, the idea that the church synods were a separate representation of the clergy and could as such claim equal rank with parliament, the representation of the laity. The idea was novel; at an earlier time both the temporal assembly and the spiritual council had been regarded as representative of the whole people (clergy and laity); only, the spiritual council had had its particular field of competence. The development of the new view was much assisted by the introduction of elective representation of the inferior clergy and the temporary admission of this element to parliament. The endeavour to occupy a position on a level with that of parliament also found expression in the synod's resolution of itself into two houses, an upper and a lower, and in similar external imitations. of the national assembly.48

Full equality with parliament the church councils at no time attained. This was prevented by the fact that the prelates remained members of the house of lords. Another impediment may possibly be found in the circumstance that, as against the one parliamentary body, there were as a rule two separate church provincial councils, whilst a national church council could not often be called owing to the jealousy of the archbishops and the disputes which arose therefrom. Nevertheless, from the new view as to the nature of church

existentibus, de mandato Praesidentium se interim retrahentibus (Gibson, Synodus 79, Ed. 1854 p. 60); so on 15th and 17th Nov. 1529 (Wilkins III, 717).—For York cf. council in 1426 (Wilkins III, 487); joint deliberation as heresy court; resolution into two houses when discussing other subjects; mandavit, ut praelati et clerus seorsim se diverterent et... contractarent. According to Joyce, Sacred Synods 304, in York the bishops alone, as 'presidents,' formed the upper house, the whole of the rest of the clergy the lower house.

+7 Cf. § 55, near note 16.

48 Gibson, Synodus 79 (Ed. 1854 p. 60), denies that the separation into upper and lower house is based on an imitation of parliament, for this separation only assumed a fixed form by degrees and had practical considerations to recommend it. Yet, it must be supposed that the parliamentary model had considerable influence.

49 Stubbs, Const. Hist. II, 208 c 15 § 199.-For a list of instances of nonlegatine national councils see Joyce, Handbook of Convocations pp. 112 ff. He mentions five under Lanfranc, also councils in 1100, 1102, 1127, 1129. 1139, 1151, 1166, 1182, 1184, 1186, 1189, 1206, 1241, 1258, 1291, 1294, 1537, 1540 (1563), (1661). But some of these cannot be regarded as ecclesiastical national councils.

councils inferences were drawn which, to a certain extent, have their effect upon law at the present day.

These inferences were that the church councils had the right to grant taxes on the property of the clergy,50 that the latter could not elect or be elected to the house of commons,51 and lastly that the resolutions of church councils, even if confirmed by the king, bound the clergy only, not the laity also.52

The convocations in the period from the thirteenth century to the reformation exercised, owing to the spiritual powers united in them, a very considerable influence on the whole state: they were able by a liberal employment of ecclesiastical methods of coercion to procure obedience to their resolutions-which they did not submit to the king for ratification-even from the laity; in virtue of their right to determine the taxes to be paid from the ecclesiastical property of the clergy to the state,53 they were in a position to exert constant pressure on the government; with the revival of religious controversies they joined issue with the champions of the new doctrines and took part in the prosecution of the innovators, clerical or lay.54

The reformation diminished the powers of the convocations more or less in all the directions indicated.

The first and most material diminution was caused by the act touching the submission of the clergy, 25 Hen. VIII (1533/4) c 19. This statute laid down, in essential agreement with a resolution of the convocation of Canterbury,55 that the royal command was requisite before a convocation could meet, and that constitutions, canons etc. of what sort so ever could be made or executed only with the king's assent and licence.56 It was repealed by 1 & 2 Phil. & Mar. (1554 and 1554/5) c 8 s 3; but revived by 1 Eliz. (1558/9) c 1s 2. It is still in force.

50 Cf. § 4, near notes 72 ff. 52 Cf. § 14, note 16.

51 Cf. § 21, near notes 42 ff.

53 The clergy at that time paid nearly one-third of all the direct taxes of the country. Stubbs, Const. Hist. III, 378 c 19 § 405.

54 Cf. § 19, note 17.

55 See more in § 6, note 10.

56 An Acte for the submission of the Clergie to the Kynges Majestie. The enacting part runs: s 1 be it therfore now enacted by auctoritie of this present parliament accordyng to the seid submyssyon and peticion of the seid Clergie, that they ne any of theym from hensforth shall presume to attempte allege clayme or put in ure any constitucions or ordynances provynciall or Synodalles or any other canons, nor shall enacte promulge or execute any suche canons constitucions or ordynaunce provynciali, by what soo ever name or names they be called in theire convocacions in tyme commyng, which alway shalbe assembled by auctorytie of the Kynges wrythe, onles the same Clergie may have the Kynges most Royal assent and lycence to make promulge and execute suche canons constitucions and ordynaunces provynciall or Synodall

The provision is not quite accurately framed; it varies in some details from the declaration of submission made by the southern convocation, and, compared with that declaration, leaves it in particular doubtful whether the restrictions are also to apply to diocesan synods and whether, besides precedent licence, subsequent assent was also to be required.

In regard to the former of the two doubtful points, previous royal command

The submission act destroyed the independence of convocation as a legislative body. In the two other chief fields of its activity the restrictions imposed were at the outset less considerable :

In the years 1540, 1542 and 1545 we find, for the first time, that grants of taxes by convocation were confirmed by parliament.57

*

was surely not required for the summoning of diocesan synods (the sense necessitates a comma at the place where the is); from the wording of the act it is to be assumed that assent and licence were also not required for any proceedings at a diocesan synod, but only for the further pursuance of resolutions of a diocesan synod (any other canons') in convocation.

As to the second point, the declaration of submission by convocation runs as follows: only your highness by your royall assent shall lycence us to make, promulge, and execute and thereto give your assent and authorite. The preamble of the act gives as the purport of the declaration: unless the Kynges. assente and lycence may to them be had, to make, promulge, and execute and that hys Majestie doo geve hys assente and auctorytie in that behalf. Comparing this with the act as quoted, we must infer that the enacting part of the statute does not require subsequent assent on the part of the king. The view here taken is also maintained in a report of the Committee of Privileges of the lower house of Canterbury in 1873, printed in appendix to Chron. of Conv. Cant. 1873.-Independent hereof are the questions whether the crown can generally in virtue of the supremacy act require canons to be submitted to it for approval, whether it may give precedent licence as a licence conditioned by reservation of a right to subsequent assent, lastly, whether it may in virtue of the original declaration of submission by the southern convocation, wherein subsequent assent is expressly conceded, demand and enforce the obtaining of such assent. Practice in the last centuries with regard to the administration of the law has rested on an opinion given by a committee of judges at the request of the house of lords in Trin. 8 Jac. I (1610). According thereto the sense of the act should be (Coke, Reports XIII, 72) :—

1. That a Convocation cannot assemble at their Convocation without the assent of the King.

2. That after their assembly they cannot confer to constitute any Cannons without license del Roy.

3. When they upon conference conclude any Cannons, yet they cannot execute any of their Cannons without Royall assent. 4. They cannot execute any after Royall assent, but with these four limitations:

1. That they be not against the Prerogative of the King.

2. Nor against the Common Law.

3. Nor against any Statute Law.

4. Nor against any Custome of the Realm.

According to Joyce, Handbook of the Convocation p. 174, a special royal 'assent' to canons after their enactment (see No. 3 in opinion of judges) was first issued in 1598. (On the 25th Jan. 1593, the archbishop laid the deed of ratification before convocation. Cardwell, Synodalia 580.) According to Trevor, Convocations pp. 161 ff. a special licence' (see No. 2 in opinion of judges) was first granted in 1604. (For the southern province Cardwell, Synodalia 584; for the northern province document of 18th Feb. 1606, in Wilkins, Conc. IV, 426.)-On the procedure observed in 1865, 1887-88 and 1892 cf. § 55, note 25.

57 Journal of Lords I, 156 (relates to 1540), 218 (1542), 277 (1545); cf. Phillimore, Eccles. Law 1930".-A precedent from earlier times is furnished by 18 Ed. III (1344) st. 3, which, however, only mentions a grant by the clergy as one of the considerations for certain concessions made by the king to them.-On further attempts of parliament in the fourteenth and fifteenth centuries to influence the clergy in their grants see Stubbs, Const. Hist. III, 349 c 19 § 396, II, 470 c 16 § 263, II, 489 f. c 16 § 265, III, 147, 271 c 18 §§ 344, 370.