IMAGE EVALUATION TEST TARGET (MT-3) m /<■' L^', ^ [A :A P 1.0 LI i.25 iaiilM !|i;!2.5 116 S m \a 12.2 2.0 U Hi 1.6 % signifie "A SUfVRE", le symbole V signifie "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartas, planches, tableaux, etc., peuvent 6tre filmds i des taux de r6duction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seui cSich6, il est filmd A partir de Tangle sup6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrsnt la mdthode. 1 2 3 1 2 3 ;.:'4 5 6 ^■x J \ i- /-""^ t a /OVC^' ^^^g.-^i-^-^^^'^V^ EPISCOPAL ELECTIONS : Sncient and J^l^oderru " '$^. A STUDY IN ECCLESIASTICAL *POLITY. v/, .\i. BY. liif ' J^'j S. E. DAWSON, DELEGATE FROM CHRIST CHURCH CATHEDRAL, MONTREAL, TO THE DIOCESAN SYNOD AND A DIOCESAN DELEGATE TO . THE PROVINCIAL SYNOD OP CANADA. i^r- y MONTREAL: = ' DAWSON BROTHERS, PUBLISHERS, 1877. «■: w- ^m I .1 V i if /^ EPISCOPAL ELECTIONS Ji.nciBnl and Modern* A STUDY IN ECCLESIASTICAL POLITY. BY S. E. DAWSON, 'Hf. i DELEGATE PROM CHRIST CHURCH CATHEDRAL, MONTREAL, TO THE DIOCESAN SYNOD AND A DIOCESAN DELEGATE TO THE PROVINCIAL SYNOD OP CANADA. ,S..;!i. MONTREAL: DAWSON BROTHERS, PUBLISHERS, 1877. - ^ i PRINTEI^ AT THE "GAZETTE" TRINTINCt HOUSE *'V' PREFACE. This study upon u subject wliich is now occupying the attention of the assemblies of the Church of England in Canada, is put forth, not as offering any new views, but vathei' for the purpose of collecting, in a convenient form, the opinions of learned writei's upon a much (lis]>ute(l point of Canon law. Care lias been taken to cite in all cases the authorities used, and writers of the churches of England and Rome have exclusively been referred to, because, upon such a point, they would naturally have more weight with Anglicans than non-episcopalian writers, no matter how learned the latter might be. Some arguments have been employed which, being of a more general nature, may a])])eal to the judgment by their own intrinsic force; but none of them are original. They have all been suggested by reading, conversation, or debate. The question is interesting from whatever point it is approached, and public debate could never, in the time usual I}' allotted, go to the bottom of it. The authorities are so volu- minous, the period of history covered is so wide, and the circumstances, under which the principles invoked have been applied, are so various, that weeks instead of hours would not suffice properly to discuss them in a public assembly. In all questions concerning the church, a victory in a party sense is a general defeat. When the ti-ue governing principle is discovered and adopted, then only the work of legislation is solidly done, and the result can properly be called a victory. ■5* W\ i 1* CONTENTS. PAOH I. — Preliminary Considerations 5 II. — Tlie Argnment from Antiquity 9 III.— Tlie Primitive Church 14 IV. — The •ludicium of the Bishops 40 v.— The Law of the Church of England in England 43 VI. — The Law of the Church of England in Canada 46 .1 r f EPISCOPAL ELECTIONS. OENERAL CONSIDERATIONS. "When any civil or ecclosiastical in.-ititutioii has been tried by oxp'>rience and found to work well — when it has been repeatedly iested and has always proved equal to the strain — when the results of its working are evident before our eyes, and when these results, far from exciting dissatis- faction, are continually the subject of congratulation — any proposition to innovate vipon such an institution should challenge our earnest attention. If superadded to this, experience has taught us that every deviation, has resulted in discord and dilhculty, the argument against innovation becomes irresistible, and conservatism has its full justiliea- tion, for then Lord Bacon's i. ixim is i'ully applicable: " it is good not to try experiments in states, except the " necessity be urgent, or the utility evident." These, and many similar considerations apply with full forc^e to the change projiosed in the election of Bishops in the Anglican Church in Canada. As to the precise extent of the wishes of the Bishops, they themselves have not informed us. The desires of the Bishops are probably far outrun by the advocates of change, for it is no> m the Roman Church only that a man may be " more catholic than the Pope." It is not pretended that the system of free diocesan election has placed upon the episcopal bench a class of men inferior to their predecessors, or that the surviving nominated Bishops arQ superior to those chosen by the ft t- u I f tl 6 dioceses. The diocesan synods have done well in years past, and the presumption must ])e that, with increased experience, they will do at h'ast as well in the future. The only elections which were accompanied to any extent by conilict were joint elections in which the House of Bishops took part. If the object be to repeat these scenes and to bring the House of Bishops into incessant colli- sion with the synods, the proposed change would most unquestionably eflect the puri)ose. It seems unreasonable to changf* the rule which has always worked well for that which has always worked ill; or to curtail the rights of the dioceses until they are shown to have made even once a bad election. It was argued in the Provincial Synod that the divine afllatus rested upon the Bishops. Let it be granted. The proposition is not complete until the clause is added, " and upon th*" Bishops alone." Another clergyman, referring to the election in the D'ocese of Quebec, stated that '* everything had turned out well in the providence " of G-od • but what might have occurred — the person *' chosen might have been a person wholly unfit for the " office. " It seems harsh to limit the providence of God to that one synod, or to suppose that the clergy and chosen laity of a diocese, entering upon a solemn duty in the method prescribed by the Church, should be, at any time, bereft of the Divine guidance and assist- ance. The proposition goes far towards a claim lor in- fallibility on behalf of the bishops ; while the whol* body of the Canon law attaches the chief importance to the testimony of the clergy and people, for they, says St. Cyprian, "have most fully known the life and conversation jf e'.ch individual." This would naturally result from a residence in the same diocese. The new canon is misnam'^d by some " a conservative mefRure," and its object they say is to rescue the flec- tions from the prej^onderating weight of lay influence. A to the 1 lys St. m rsatioii m from a - rvative 1 le Qlec- nce. A B;' '- . moment's consideration will show that the present method is conservative to a dci^ree. The voting- in elections is not conducted in the ordinary way. Every clergyman in the diocese has one vote, and all the lay representatives for his parish have but one vote among them. In the election for Montreal, four, and sometimes six, lay votes counted as one, whereas each assistant deacon, in a church with a large clerical stall', had an entire vote. Moreover the lay votes from a parish were often divided equally and so did not count at all. The fact is that the clergy have a lai'ge prepor derating Influence in elections. This is a most etfective check upon the laity, but ii' superadded to this, there ir_ ust be another clerical election in the House of Bishops, the laity may as well give up, first as last, any participation in the matter, for it is not consistent with the self-respect of intelligent men to suffer themselves to be amused with the mere shadow of power and responsi- bility. And here it is well to note, that v/hat is really claimed, under cover of the proposed canon, is a new election in the House of Bishops, over the Diocesan election. An election to be held with closed doors, and where the reasons of rejection wi]l neA'er transpire. Such an elec- tion would be unjust to the candidates, for a clergyman of unsullied reputation might be rejected without reason shown, and that in a house where the members are few in number, and each vote therefore of great weight. If the Bishops wo aid state l)eforehand v/hat qualifications they require, the electors and candidates would have some guide. These requisites are now unknown, and such a canon as this must i)roduco a violent contest whenever it is acted upon, and the victory will be dearly bought, even if it rests with the House of Bishops, for it will entail the future indifference of a large number of active and indejiendent-mindLd laymen. , ■ The system of co-optation which, in course of years, ^ ^ .u--' 8 f* ■would probably result from the projected innovation, has: the great disadvantage of gradually alienating the body adopting it from the other portions of the civil or ecclesi- astical state. By a free system of election alone, can permanent harmony be preserved between the three orders, and the feelings and wishes of the clergy and laity find a voice in the Upper House. It is not denied that a canon of consecration is neces- sary. On the contrary, it would be highly proper that rules should be laid down by which the consecrating Bishops should examine into an election, and see that it has been conducted with the canonical forms, and that the person elected has certain specified qualifications. Every organised body has this right; but to reject a Bishop-elect simply because he could not command a majority in the Upper House, would be no more just and reasonable than it would be in the case of the Senate or the House of Lords. A canon of consecration, based on English precedent {vide p. ^1), might easily be made to command the consent of all. This x)roiiosed change is one of vital importance. It strikes at the foundation of the system which was the pride of the master-builders. The eloquent testimony of Bishop Strachan {vide p. 50) to the primitive character of our diocesan elections should be read carefully by every delegate, for there he will find the simple truth stated in simple language. Even'a layman, with a fractional vote at elections, can understand it, and may well ask how much less '^apable, honest, and intelligent, are the laity of 1877 than those of 1858? It is not immediately, or sud- denly, that any error in principle shows its ill efl'ect, especially in ecclesiastical matters ; but it is in the long- course of years, when other occupants have succeeded to the honours of the episcopal bench, that the flaw in the structure will appear, that principles of encroachment will insidiously be worked out in all their logical »?_*._• V 9 don, has: he body ' ecclesi- •ne, can le three ■gy and sequences, and the laity will find that, as it was in the tenth so will it be in the twentieth century, they will little by little have been ousted of their ancient rights ^nd privileges. s neces- per that ecrating see that Old that Lcations. reject a mand a ore Just e Senate n, based be made nee. It was the mony of I'acter of )y every stated in nal vote isk how laity of or sud- 11 eflect, the long Lcceeded flaw in achment logical >i ' '.I I 4 II. THE ARGUMENT FROM ANTIQUITY. In the very learned and able discussion which took place, concerning the proposed change, at the session of the Provincial Synod in 1874, great stress was laid upon the custom of antiquity, and especially upon the fourth canon of the Nicene Council. It was maintained by many that these authorities supported a right of absolute reto residing in the House of Bishops. To this it may well be objected in limine that, according to the 21st Article of Religion, general councils may err, and have erred, and moreover that, by the 34th Article, we are taught that it is not necessary that traditions and ceremonies should be in all places one and utterly alike ; but that they may at all times be changed according to the diversities of countries, times, and men's manners, so that nothing [be ordained against G-od's Holy TV ord. It is therefore unreasonable to suppose that regulations of discipline made fifteen hundred years ago, in a semi-pagan community, under an absolute military government, for a state of society which since long ages has utterly disap- peared, should be applicable to a society [such as ours, where the whole canon of Scripture is in the hands of the laity as well ^as of the clergy, and upon a continent vrhose existence was then not even suspected. If the matter were of divine faiUi, it vvould fall under another • •: ■■:-::;;.--. :, -4 iijl iH ( f 1 , 10 rule ; but it is one of organisation and outward discipline^ and the distinction should be carefully borne in mind. The most cursory i)erusal of the Nicene canons will show their inapplicability, and history bears witness to the fact that many of them have been for ages totally disregarded by the church. By the 20th canon=^ we are absolutely forbidden to kneel when we offer prayers on the Lord's day, and the standing posture is enjoined. The Presbyterian Church alone obeys this command. Then^ by the loth canon,t bishops, priests, and deacons are for- bidden to move from city to city, but must remain in the place for which they are ordained, Ui)on this. Dean Stanley remarks : " By the close of the century it was " set aside as if it had never existed, and there is proba- " bly no church in Euroj)e in which the convenience or " the ambition of men has not proved too strong for its " adoption. If the translation of bishops has now become *' the exception, yet the translation, the promotion, of " presbyters and deacons from i^lace to place has been so -' common as to escape notice." This canon was re-enac- ted at th -i Greneral Council of Chalcedon,$ and the bishop who receives a clergyman from another diocese, as well as the priest who removes, are excommunicated until the wandering clergyman returns to his own bishop. The transitory nature of many of these canons is seen in the 7th. It is as follows : " Since custom and ancient " tradition have prevailed, that the Bishop of iElia should " bo honoured, let him have the next place of honour, *' saving to the Metropolitan his proper dignity." Now ^lia was a new name for the rebuilt city of Jerusalem,^ * See Stanley — Eastern Church, p. 263, t Eastern Church, p. 2G1. ' t Council of Chalcedon, A.D. 451, Canon 20. See also, to the same effect, 21st Canon of the Council of Antiocb, A.D. 341. Bp. llefele, p. 72. § Stanley — Eastern Church, p. 2G1. . -, Bp. Hcfele — History of Christian Council", p. 408. . .,:, , i 11 2ipline^ incl. ns will tiess to totally we are yers on i. The Then, are for- L in the i, Dean it was proba- ence or >• for its become ion, of been so •e-enac- bishop as well iitil the is seen ancient should honour, ' Now salem,§ 1 the same ,p. 72. the mother city of Christianity, and yet it was made to yield precedence to Ctesarea ; and, after all, scarcely a century had passed before Jerusalem was again a patri- archal city, and Ciesarea a simple bishox)'s see. So much for ancient tradition. It would be excessively tedious to go over all the canons of this council. Space will permit only of allusion to the questions ol' the "lapsi." the "catharoi," the "digamists," and others, relating to the manners and morals of the clergy. It may, however, be observed that by the 5th canon, provincial synods shoiild be held twice a year. Our provincial synods are held only once in three years. It is important to notice that the present attempt to introduce new customs into the Canadian Church stops short of the canons of Nicoca. That council records the first steps which led to the privileges of the great patri- archates, and to the primacy of the see of liome. The 6th canon reads ; " Let ancient customs prevail ; those in *' Egypt, Lybia, and Pentapolis ; that the Bishop of Alex- " andria have power over all these, since this is customary *' for the Bishop of Rome also (since the Bishop of Eome " also has a sir^ilar custom). But this is clearly manifest. " that if any be made a bishop without the consent of the " Metropolitan, the great Synod has determined such an " one ought not to bo bishop." Clearly then, if the pro- posed change is to give our church a Nicene status, the Metropolitan should have a veto. Why not take up the whole ground at once, and erect a protestant popedom ? Then again, Who should be, by Nicene rule, the patriarch of our church ? This is a theoretical point which may be left to more learned canonists, but it is <'lear that, whereas the Church in Britain was founded by Eastern missionaries, and therefore (although it afterwards yielded) may escape the primacy of Rome the Christian Churoh in Canada was founded by Roman missionaries, and by srtict canon law, the Archbishop of Canterbury k ! m m m fr 'rt •■ 12 had no right to ordain bishops in the patriarchate of another prelate. The arguments of Barrow, in his treatise on the Pope's supremacy, though conclusive as to Britain, fail as regards Canada, for the above reason. Such points as these were pressed upon the Oxford tractarians by Cardinal "Wiseman in 1840, and one of them, the Rev. "Wm. Palmer, fairly driven into a corner by the keen logic of the Cardinal, is obliged to take this position : " We^ " fvilly admit that the strictness of the canons may be dis- " pensed with, either in a case of necessity, or for the " convenience of the church, and the advantage of reli- " gion ; but there is one excei:)tion — the church can never " dispense with those canons which are based on the law " of Christ." If this be the case, why are our " ancient customs" troubled by a resuscitation of customs dead and buried for a thousand years ? The i>articular canon which is relied upon by the inno- vating party is the 4th : " The bishop ought indeed " chiefly to be constituted by all (the bishops) of the " province ; or, if that is not possible on account of " pressing necessity, or on account of the length of " journeys, three (bishops) at least shall meet, and pro- " ceed to the imposition of hands, with the consent of " those absent in writing. The confirmation of what is " done belongs by right to the Metropolitan." To this canon it should be noted there is no excommunication attached, as in i:he case of the canon forbidding the removal of cler- gymen. The point concerning the consent given will be noticed in another place. Here we would only quote the comment of the learned Dean of Westminster if " This * Rev. Wm. Palmer — Apostolic Succession and Jurisdiction of the Epis- copacy in the British Churches Vindicated, p. 54. t Dean Stanley — Eastern Church, p. 259. Rev. Wm. Palmer — Apostolical Succession, &c., of the British Epis- copacy Vindicated, p. 2-48, to the same eftect. The Greek word is translated " ordinari " by Dionysius Exiguus, and in the Decretum of Gratian Dist. 64, c. 1. 13 iarchate in his ve as to n. Such ctarians he Rev. en logic " We=^ be dis- for the s of reli- n never the law ancient as dead le inno- indeed of the Dunt of igth of nd pro- isent of what is s canon tached, of cler- vill be Lote the " This the Epis- ish Epis- :ims, and A " canon is still observed throughout the greater part ol *' Christendom It enjoined that at the consecration (or- *' dination, as it was then termed) of a bishop, no less *' than three bishops should be concerned, as representing " the absent bishops of the province, who might be *' detained by pressing business or the length of the " journey." " On the observance of this canon in the *' consecration of Archbishop Parker of Canterbury," he adds, "depends the degree of validity and regularity '* which is attached to the orders of the Church of Eng- ^' land." To this may be added the remark that the same rules, which were observed in the case of Archbishop Parker, are to this day observed in Canada, and upon the canonicity of that one ordination the orders of the whole Anglican Church depend. All these points, however, are questions of " discipline," not matters of " Divine faith," and therefore it does not follow that, because Nica3a gave us a creed, we should adopt all its canons. As for the creed in our prayer books, which passes under the name " Nicene," its proper designation is Constantinopolitan ; for the Council of Constantinople, lifty-six years later, made many changes in the body of the Nicene creed, and added to it all the clauses after the words, " I believe in the " Holy ahost." The clause " and from the iSon,"^ is the unauthorised interpolation of E-ecared, .. semi-bar- barous Grothic king of Spain, who, in the zeal of recent conversion from Arianism, sought to improve upon the deposit of faith. The whole Western Church, Eoman and Anglican, has adopted this interpolation, and it is this which prevents inter-communion between the Angli- can and the orthodox Eastern Church. If, then, the • Cabassuetio Synopsis Concilli'»riiin, vol. 3, p. 95. llev. E. S. Ffoulkes— Churcl's Creed or the Crown's Creed. Do. Is the Western Church under Anathema? Il I I 14 church ill Canada is to be brought to the Nicene standard^ why not '* let ancient customs i^revail," and commence with the creed ? in. THE PRIMITIVE CHURCH. ill iilil «i From the preceding considerations it will no doubt appear that each particular church has a right to make canons and to repeal them, provided only that nothing be enjoined which is contrary to the law of Christ, or for- bidden which is enjoined by that law. It will be admitted also that the New Testament contains the law of Christ ; and it will not be denied, at least by the advocates of the proposed changes, that bishops are the successors of the ap sties. It seems strange then that, in the discussion at last meeting of synod, so little stress was laid upon the election of Matthias, recorded in the 1st chapter of Acts. The passage is so clear, and the translation so exact, that no knowledge of Grreek or of canon law is required to understand it : " Thei/ (the disciples generally, not the apostles) appointed two," and, after prayer, " they gave " forth their lots, and the lot fell upon Matthias, and he " was numbered v/ith the eleven apostles." It is evident from this passage that the apostles did not vote separately from the disciples. This election, it w^ould naturally be supposed, was a model instance, at the very commence- ment, of the organisation of the church ; but, at the Provincial Synod, it was explained away as an excep- tional case. Bishop Wordsworth, in the same strain, commenting on the passage, says :^ " The i^recise mode * Bp. Wordsworth — Greek Testament, Vol. I. 15 ;tanclar(l, »mmence 10 doubt to make )thiiig be ;t, or ior- admitted f Christ ; tes of the rs of the in at last ipon the r of Acts, sact, that quired to , not the 'hey g-ave s, and he s evident eparately urally be mmence- .t, at the m excep- le strain, ise mode " which was here used in the election of Matthias seems " to have been left in uncertainty, that it might not be " used as an example for the future ordinations of the " Christian ministry." That is to say, although the general method and principle are clearly recorded, we are to abandon them because it is not stated whether the lots were cast in an urn, or precisely how the names were written upon them. Cabassuetio also thinks the case exceptional.^^ " Peter," he says, " could himself have " elected the new apostle in place of Judas ; but he i>re- " ferred, because of his prudence and moderation, to " gratify the whole church." Cai on '^ookf explains the passage thus : " Appointed — or presented, nominated. " The nomination appears then to have rested with the " whole body of Christians ; but the selection of the " individual in this case was referred to the Lord, and " the ordination was made unquestionably by the impo- " sition of the apostles' hands." Bingham does not think the case so exceptional. t Instances similar, he says. " I " confess there are not very many ; but some few there " are, which show that that method of electing was not " altogether so singular as is commonly imagined. For " in Si:)ain it was once the common practice, as may be " concluded from a canon of the Council of Barcelona, " anno 599, which orders that ' when a vacant bishopric " ' is to be lilled, two or three shall be elected by the con- " ' sent of the clergy and people, who shall present them * Cabassuetio Synopsis Concilliarum, vol. 1., p. 278. Petrum quidem potuissc per seipsiini novum, loco Judie, apostolum eligerc,. sed maluisse per prudentiam et modcstiam universo; ecclesire gratificari. De Marca, Avho was a Galilean, could Jiot go so far, but thinks James and John helped Peter to regulate the form of the election. t Canon Cook, Commentary on Acts X Bingham's Works, Vol. II., p. 3. Thomassin Ancienne et Nouvelle Discipline dc I'Eglise, Vol. IV., p. 237^ also notices this custom. ir Vi [;■ , ill H M if : f ■ 16 (( ( II < to the Metropolitan and his fellow bishops, and they, having first fasted, shall cast lots, leaving the determi- " ' nation to Christ the Lord ; then he on whom the lot " ' shall fall shall be consummated by the blessing of con- *' ' secration.' " In precisely the same manner the native Christian Church of Malabar proceeded in 1815 in the election of a bishop. =^ An assembly was held of the pres- byters and chief laity, who put three names forward and made the ultimate choice by lot. This poor persecuted people could make out the meaning of the passage though they had been isolated for so long a period. There is in New Testament rules a universal applicability which the canons of councils do not appear to possess. When the Christian Church became a missionary church and sent out apostles to convert the heathen, it is evident that the missionaries must have been designated lor their work.f In fhe same way the Church proceeds now, as for instance in Canada, in the case of the Bishop of Algoma, or in the North "West Territories, w^here there is no organised Christian community. But it is these which are the exceptional cases ; for, as Maupied shows, as soon as there \^as a sufficiently numerous body of Christians, the Christian communities each elected their own bishop. J The question before us is not concerning missionary bishops, but concerning the succession to sees in settled and organised communities of episcopalians ; and in order to shew that the custom which now obtains in Canada is supported by the most weighty authority, it • Howard— Christians of St. Thomas, p. 65. t Bingham's Worlis, Vol. II., p. 27. t Maupied Juris Canonici Compendium. Ab apostolis vero creati, eorumque successores episcopi alios similiter constituerunt. Principio vix pnesentiam ac testimonium pra)stabat, episcopi eligehaut populus assentiebat ; at post modum Christianus jjopulus numero- sior factus panlatim prassentiam ac testimonium extendit ad suffragium. I & and they, 3 de termi- ni the lot ng of con- he native 15 in the the pres- ward and ersecuted [■e though lere is in vhich the lissionary then, it is esignated proceeds le Bishop lere there is these ;d shows, body of )ted their issionary n settled and in stains in lority, it 3 similiter it, episcopi 18 numoro- ium. 17 will be best to give a sort of catena of extracts from authors of well known ability and learning, but before doing this it will be well to refer to those who have been freely quoted upon the other side. Peter de Marca, who was made Archbishop of Paris for his defence of the Gallican liberties, and whos«^ name is of much weight, although his book is upon the Index, is of opinion that in ante-Nicone times election and ordi- nation were usually performed together.=^ The bishop or bishops sought the testiviontjj or suffrage of the clergy and people by questioning, and awaited their consent before ordaining. Their great aim was that, under no circum- stances, a bishop should be obtruded upon an unwilling people, and therefore the desires and the votes of both clergy and people were absolutely necessary in order that the ordination should be peaceably performed. The clergy, $ he thinks, had no power or rights which the people did not equally share, but he thinks that the bis' ips had the chief part. This must be so if election and ordination are at any time considered together ; for in ordination no part what- ever of the ceremony devolves upon any but the bishoi)s, while election is a joint function of clergy and laity. Moreover, as Bingham observes (vide p. 29), it is of no consequen(;e what words are used, there was in the hands of the people and clergy a real and§ effective power by * P. 358. — De Concordia Sacordotii ct Imperii. Sed in personrc deligendre examine vacantis etclesiio clernm et populum interroganti'S, eorum testimonia exiiuiraltant, atqne consunsum praistolaliau- tur, ne invitis olitniderotur Episoopus. Itaqiu; dcsidcria et vota clcii alqiio populi necessaria ((uidem erunt nt in pace fieret ordiuatio. t r. 369. — Testimonium ant siififragium. I Non reperio discrimen aliquod constitntum a veteribus inter clerum civitatis et populum. § DeMarca p. 358. — Solum testimonium etcbnsensum designandi EpLscopi clero etpopulo tribuit, ipsam vero des gnationem sive ele< tionem et judicium Metropolitano cum syiiodo. What in this in reality but saying that the people nominated and the bishops ccnsummated the choice ? 18 II 1 i ;i5iii which the iiamo of tho porsoii they wanted was put for- ward, and it"> as Do Marca coiu'edes, tlio bishops always rhoso, or designated, or ek'cted, that person and ordained him, the dispute is one of words not of things. Doubtless if =^ there was any defect in tho qualiiication the ])i8hops would not accept him. No one ever pretended that Catholic bishops would ordain an Arian, for instance. In this respect it is easy to see that the bishops had the chief part. Do Marraf adds that this opinion is a new one, and that many will distrust it because of its novelty. He then goes on to say that in the Western Church election beg-an to be separated from conlirmation, and this last from ordi- nation ; then the election itself was attributed to the clergy and people, and the decree of election was reserved to the judgment of the Metropolitan and bishops, and that after- wards, on account of the long intervals between the assemblies of synods, it was reserved to the Metropolitan alone. The Nicene Council, he thinks, laid down the powers of the l)ishops, leaving the rights of the laity and clergy to custom. If this be so, the powers which required a special canon could not have been established very lirmly in ante-Nicene times, and this Do Marca acknowledges, for he says, on page 251, that it is certain that bishops before the Nicene Council were elected by clergy and people. The work of Thomassin:): is of great authority in the Roman Church to the present day. It is a work of learning and research, but the author's conclusions upon • p. 3G4 — Observabat ista vetus illud institutum, ut ab Episcopis, a clero et a plebo in unam congrcgatis oligeretnr, qui praficiciidiis crat ecclcsia) •vacanti cum illo tamen discrimine, quod superius adnotavi, ut judicium essct Episcoporum, cleri vero et populi suffraglum. t P. 358. — Non me latot, quia plerisque nova videri possit haec opinio ■et fortasse ob novitatem periclitari. } De Autiqua et Nova Disciplina Ecclesiee. van put Ibr- ops always id ordained DoubtlesK tho l)ishops endod that staiico. In ad the chier w one, and ^ lie then ction began It irom ordi- o the clergy eryed to tho d that after- etween the letropolitan down the \ie laity and vers which established De Marca it is certain elected by ority in the a work of Lsions upon ab Episcopis, a Ills crat ecclcsifK t judicium essct isit haec opinio f 19 historical points are so much inlluenced by certain pre- conceived theories that it becomes necessary to draw from the facts he relates the real inferences, rath'M- than to receive them from the authors own statement. In this matter he lays down two theories, both of wh ch deliberately beg the question at issue. He commences by laying down the maxim that* " the power of calling })ishops to the supreme dignity of " the royal priesthood of Jesus Christ, being the partici- '• pation and the comi>lete imitation of the eternal autho- " rity of Grod tln^ Father over His incarnate Son, cannot " be more justly ei'.trusted than to the bishops, who are " t.ie most lively images of God upon earth." Nov\', if this be estaldished, the whole question falls to the ground, for who can or ought to resist the living representatives of Grod upon earth ^ "VVhy should lay people, or the inferior clergy, be called on, in or out of synod, to take part in the government of the Church :* Some simple method of assessment is surely all that is necessary. Even the most extreme advocates for the apostolic succession in the Church of England do not go so far. In commenting upon the recent unanimous deci- sion of the English Episcopate upon the Society of the Holy Cross and the question of confession, the editor of the Church Times (July 13) says that ' the powers of hell " have done their w^orst" acting, he means to say, through the bishops. A most inelegant expression if applied even to laymen, and removed toto ccelo from the sentiments of the learned and pious Thomassin. So much for the extreme Anglo-Oatholic view of Episcopacy. As for Thomassin, his theory is essential to him when he treats of the primacy and vicarate of Peter, but the vast majority of English churchmen do not go so far as to place the bishops above the canons, xlthough they have a real * Thomassin Ancienne et Nouvelle Discipline de rEglise, vol. iv., p. 195. 1 ,:¥. \l fiji iH>^ ■§•11 IfM 20 reverence for the Episcopate. Some, however, think the bishops infallible, but it is only in so far as they happen to agree with them. The other question-begging assumption of Thomassin is that because ordination in the early times usually fol- lowed .imediately after election,^ the word cheirotonia signified election as well as ordination. If this be so, ordination having never been claimed by any but bishops, the question again falls to the ground. This view is combated by Do Marca, Van Espen, Hefele, Bingham, and all other western canonists. For nothing is easier than to distinguish between election and ordination in the case of the seven deacons in the 6th chapter of Acts. " Look ye out,''' said the apostles, F2:)eak- ing to the " multitude of the disciples,^' " seven men from ^'' amon^ your '■^ And they chose Stephen^' and 'ix others, " ivhom they set I '''ire the apostles, and when they had " prayed they laid their hands on them.'' It is true that in classic Greek, the word cheirotonia meant voting by stretching out the hand in an assembly, but from the commencement of the Church it was Hie word appro- priated to the stretching out the hand in ordination. The Apostolic Canons enjoin that ordinations {cheirotoniai) .ihall be performed by two or three bishops, and Thomas- sin (having doubtless before his mind some precedents in the Eoman Church) f thinks that one l^ishop is suffi- cient. It is absurd to suppose that in such a case a bishop would lirst vote ])y show of hands and then ordain ; so Thomassin thinks that, in ordaining, the bishops elected and thus he really eliminates election altogether, thereby leaving totally unaccounted for a custom, on his ovv^n tes- timony, general in the Church for ei"-ht centuries after the Council of Nicsea. If any doubt could arise upon this * Vol. IV., pp. 196, IL?, 225, 229. t Vol. IV., p. 197—242. 21 , think the ley happen Thomassin usually fol- cheirotonia his be so, ut bishops, an Espen, lists. For ection and n the 6th :les, ppeak- vien from ' ix others, they had •ue that in ,'oting by from the ■vd appro- ion. The eirotoniai) I Thomas- cedents in p is snfii- e a bishop rdain ; so s elected r, theroby i own tes- ries after upon this question, a reference to the 28th Canon of the general Council of Chalcedon would settle il, where election is called psephisma and precedes cheirotonia, or ordination. About psephisma there is no question, for pscphos was the small pebble used in voting by ballot. It is true, says our au^hor,^ that St, Cyprian (LT. Epis., 4) attributes to the people the principal power of electing worthy and rejecting unworthy persons as bishops ; but Cyprian only means that they did it by their testimony (which he elsewhere calls suffrage), for the bishops were not informed in detail of the life and actions of indivi- duals, whereas nothing could escape the eyes of the people of a diocese. The theory in Canada is the very reverse of this. In this w^ay only, continues Tho^Dassin, the people were in some degree masters of the elections. It must be observed that this theory of Thomassin"s applies only to the period preceding Constantine. For the wdiole period after he recognises fully the power of the clergy and people in elections, only he thinks that elections did not depend absolutely upon the people. The bishops had a judicium in the matter. This seems to him to have necessarily resulted from the separation of election and ordination, and the well-settled usage which was brought to light at the accession of Constantine could not possibly be explained otherwise, and so he frankly admits it. lie quotes the Council of Antioch,! A.D. 341, to shew that a bishop could not be translated to another see even if chosen by the people ; and the Council of Chalcedon, which decreed in the case of a disputed election at Ephe- sus that he should bt bishop who shall be elected (psephi- zomenos) by all those who are to be tmder his care. This is evidently the origin of the maxim of St. Leo the Great : Qui prcefuiurus est omnibus ab ovmihus eligaturT Passing on to author's of acknowledged weight in the • Vol. IV., p. 195. t Vol. IV., p. 190. i i iih iwm\ I V» «« r . t, 00 Church of England, wo will quote the opinion of Dean Hook, a very learned ecclesiastical historian. hook's church dictionary, page 114. •' "When cities were first converted to Christianity, the bishops were elected by the clergy and people ; for it was then thought convenient that the laity as well as the clergy should concur in the election, that he who was to have the inspection of them all might come in by common consent. " But as the number of Christians increased, this was found to be inconvenient ; for tumults were raised, and sometimes murders comraitted, at such popular elec- tions. To prevent such disorders, the emperors being then Christians, reserved the election of bishops to themselves ; but the Bishop of Rome, when he had obtained supremacy in the "Western Church, was unwilling that the bishops should have any depend- ence upon princes ; and therefore brought it about that the canons in cathedral churches should have the election of their bishops, which elections were usually confirmed at Home." This is an admirable summary of the whole c|uestion from a historical point. The Bishop of Rome claimed the right of confiimation under the canoiits of the very Council of I^icce,! which are now urged upon us. He claimed it as patriarch. There was in early times no representative system answering to our lay delegation in synod, and the populace were whipped up by the clergy into opposing parties, as in the case of the contested elec- tion of Damasus and "Drsinus at Rome, during which 137 corpses were cue mornhig dragged out of the Basilica of Sicininus (now the Church of Santa Maria Maggiore). That estimable heathen,^^ Ammianus Marcellinus, lays the whole blame upon the clergy, and a diligent perusal of 'the old histories will show the inferior clergy and monks, * Ammianus Marcellinus. Book XXVII , Chap. 3. on oi' Dean jtianity, the pie ; for it as well as lat he who ht come in d, this was raised, and •pular elec- lerors being bishops to en he had lurch, was iiy depend- I: about that have the ere usually le question ne claimed )f the very 3n us. He y times no 3legation in T the clergy itested elec- ; which 137 I Basilica of Maggiore) . lus, lays the ; perusal of and monks, 23 not only as instigators, but, their numbers being great, as the chief participants in these riots. =^ The traiisfer of ^ the ]DOwer of election was as much aimed at this mrbu- " lence of the clergy, who were then the more to blame as they possessed the greater part of the learning and cul- ture then existing. There is no argument applicable to lay exclusion whl^h will not tell to the same extent for : clerical exclusion, for in the case of laymen the stimulus I of ambition is at least absent. In the present time lay- men are accustomed to transact business in representative assemblies with dignity and order. Atf this very Council of Nica3a the Emperor, in his openiii address, ■exhorted the bishops to unity and concord, and, heathen though he was, burned openly (with an oath he had not read them), before the assembly, the heap of accusations and recriminations which the individual bishops had poured in upon him after his arrival at the place of meet- ing. "It is the command of Christ," said he as the parchments smouldered in the brazier, " that he who " desires to be himself forgiven must first forgive his " brother." Strange words these to be thought necessary by an unbaptized layman at the first oecumenical council of Christian bishops. burns' ecclesiastical law, vol. I. " "When cities were first converted to Christianity the " bishops were elected by the clergy and the people, for " it was thought convenient that the laity as well as the " clergy should be considered in the election ; that he who " was to have the inspection of them all should come in ^' by a general consent." This sentence is quoted with approval by Muscott — * Notes to De Marca — Book VI., CI ap. 2. . , t Dean Stanley — Eastern Church, p. 220. Socrates — Ecclesiastical History, p. 19. To the same effect. 24 gives as History of Church Laws in England. Burns his authority AylitFs Parergoii. Dean Hook, finding the statement correct, also took ihis sentence from Burns, wherewith to commence his article on the election of bishops, above cited. »Sir Robert Phillimore=^ also adopts, it from Aylitf. ROGERS' ECCLESIASTICAL LAW. page 101. " Although it is clear that in the first ages of Chris- " tianity all bishops were elected by the laity as well as " the clergy, yet the Kings of this realm appointed bishops " from very early periods ; and as all the bishoprics in " England were of the King's foundation, so the right of " patronage thereof accrued to him." For these statements Rogers cites AylifTs Parergon, Spelman's ^Concillia (p. 387), and Coke upon Littleton,. 134, 344. The same writer, citing as his authority Palgrave's Anglo-Saxon Commonwealth, pp. 173-4, says : " The Anglo-Saxon kings seem to have exercised the " povrer of nomination to bishoprics. When Edward the " Confessor notified the promotion of a bishoj) he simply " declared his will by an act under seal. The authority " of the Bishop of Rome was in nowise recognised." * EccLKsiASTiCAL Law, p. 38. — Sir llobert, at page 24, seems somewhat shaken by the authorit)'^ of Thomassin, and says " that he establishes three " propositions with respect to the election of bishops during the first centu- " ries : — 1st. That the bishops exercised the chief influence in the election of " another bishop. 2. That though the people were always among the elect- «' ors, their voice carried less weight with it than that of the clergy. .3rd. " That the consent of the Prince was an indispensible preliminary to the " consecration of the Bishop by the Metropolitan." Concerning Thomassin, vide p. 18. It is only necessary to remark here that the mention of the Prince, in the third proposition, ctamps the whole pas- sage as referring to the fifth and later centuries, for it is evident that although pagan emperors may occasionally have confirmed i disputed election, no prince, until the Christian religion became the State religion, would or did. meddle in ordinations of bishops. 25 tis gives as finding rom Burns, oloction of also adopts. js of Chris- j as well as ited bishops ishoprics in the right of s Parergon, n Littleton, is authority 173-4, says : xercised the Edward the •p he simply be authority nised." ;eems somewhat jstablishes three ; the first centu- n the election of imong the elect- the clergy. 3rd. 3liminary to the ' to remark here »8 the whole pas- Qt that although ed election, ao n, would or did ELLIE8 DUPIN — ECCLE.SIASTICAL WHITEIIS TIIIItD CENTURY, page 90 I . " After the death of those who had been ordained by " the apostles, the people chose their ministers. '^he " bishops were ordained generally by several of their -" brethren who laid their hands upon them." This passage is found in the treatise on Church Discip- line at the end of the 3rd century. The word ministers includes bishops as well as presbyters, the dilFerence noted is that one bishop in the case of a presbyter was sufficient for ordination. Dupin is a writer of great authority. Cabassuetio, distinguishing between election, postulatioii and ordination, says that election was in the hands of the •clergy and people, ordination in those of the bishops.^ But Dupin, referring to the fourth century, says: "The " bishops were ordinarily chosen by the clergy and people '' of the vacant church. The Metropolitan had to be " present at the ordination, and he could not perform that " ceremony unless he had at least two bishops of the *' Province with him and the others giving their con- *' sent." In commenting upon this canon, Yan Espen observes, that at that time, it was the custom that " the election and " ordination should take place together." The bii^hops joresent w ould then make their inquiry and examir ation and the whole business ^vas completed fortnwith. The consent of the absent bishops could not then refer to the 2)erson of the candidate but co the empowering of the bishops present to act for all ; for the reason of the ca7ion, as Yan Espenf shews, w^as " to prevent secret ordina- tions." • Synopsis Concillioriim, Vol. 11 ., p. 4G8. — Porspicuum est ab ecclcsia? nascmtis primordii-i Episcoportim t-eationem fieri consuevisse accedentis popxdorum sufl'ragiis, ut contigit in i^sius Matthiie ad apostolatum electione. t Opera Omnia, vol. 3, p. 107. ,;:il A i I 26 milner's history of the church, edited by dean milner, vol. I., p. 441. " The apostles, vvho were the iirst teachers, and who planted the hrst churches, ordained successors — as far as appears — without any consultation of their respective flocks over which they were about to preside. But, as it was neither reasonable nor probable that any set of per- sons after them should be regarded as their equals, this method of appointing ecclesiastical rulers did not conti- nue ; and undoubtedly the election of bishops devolved on the people. Their appearance to vote on these occa- sions, their constraining of persons sometimes to accept the office against their will, and the determination of Pope Leo, long after, against forcing a bishop on a people against their consent, demonstrate this. The characters of men to be elected to this office were very strictly examined. Public notice was given that any one might inform against them if they were vicious or immoral. The decision on their moral conduct was left to the people ; that on their doctrine belonged chiefly to the bishops who ordained them." Although the election was with the clergy and people, it is clear that no unorthodox person would be ordained. Election w^as a title to ordination, and, unless canonical objections were raised, ordination proceeded at once. Palmer^ says " when a See became vacant by the death " of its bishop, a successor was elected by the clergy and " the peoi)le, and his claim to ordination thiis commenced." HON. W. E. GLADSTONE. — ITALY AND^HER CHURCH, page 18. " The Bishop himself was elected 1/y the clergy, witli " the concurrence of the people or their consent." CRIPPS' LAWS OP THE CHURCH AND CLERGY, page 74.. " Election was in very early times the usual mode of " elevation to the episcopal chair throughout all Christen- " dom ; and this was promiscuously performed by the laity " as v/ell as the clergy." * Rev. William Palmer — Apostolical Jurisdiction of the Episcopacy of the British Churches Vindicated, p. 18. fit I it kli [ it- 27 p. 441. and who —as far as espective But, as it set of per- uals, this not conti- devolved lese occa- to accept ination of 11 a people characters y strictly one might immoral, eft to the efly to the id people, ordained. canonical L at once. the death ilergy and amenced." .8. jrgy, with, t." al mode of 1 Christen- )y the laity 3copacy of the BARROW — TREATISE ON THE POI'e's SUPREMACY, pagO \G\. " If we consider the manner in ancient times of eiectinor and constituting the Roman Bishop, we may thence discern, not only the improbability, but iniquity oi this pretence ; how was he then chosen V Was it by a general synod of bishops, or by delegates from all parts of Christendom, whereby the common interest in him might appear, and whereby the world might be satisfied that one was elected fit for that high oltice ? No ; he was chosen, as usually then other particular bishops ivere, by the clerg-t/ and people of Rome ; none of the ivorld being^ conscious of the proceeding or hearing any share therein.'''' The force of this quotation for our purpose is in the last sentence. The " iniquity " referred to is the supremacy claimed by the Pope. The former part of the sentence is necessary to the sense. STEPHBn'S commentaries on the LAWS OK ENGLAND. " Election — the usual way in ectrly times was per clerum " et 2>opulum, but becoming tumultuous, the emperors and " other kings took some j^ortions of it in their own hands." DBAN MILMAN — HISTORY OF LATIN CHRISTIANITY, Vo!. I , l)age 522. " Below the sovereign power, the people maintained " the right of the joint election of bishops with the clergy. " This old Christian usage would fall in with the Teu- " tonic habits. As the Teutons raised their king apon " the buckler and proclaimed him with the assent of the " freemen of the tribe, so the acclamation of the people " ratified or anticipated the nomination of the bishop."' ' CANON ROBERTSON — CHURCH HISTORY, Vol. I., pagO 164. " Even to the end of the pe.'iod (second and third cen- '* tury) we meet with nothing like autocratic power in " the bishops. They ivere th imselves elected by the clergy " and people ; they consultec'. with the presbyters in the " more private matters, and with the whole body of the " faithful in such as concerned the community." /,■'./ .=<-«>"; 'f f. iv'-^-4. M; f 28 • I VAN espen'8 wouks, volume v., page 470. •' And ill the lirst place, so far as regards the elegtigji " of bishops, it is beyond question that for eleven centu- " rios it belong-ed to the clergy and people of the widowed " church ; so much so indeed that the holy fathers " thought ihat that rule of discipline descend(>d from " diy'iie and apostolic tradition. And, among others, St. " Cyprian speaks to this etfect in his G8th Epistle, which " is a sy nodical one, wa-itten to the clergy and people of " Spain concerning the idolatrous bishops, Basilides and " 3lartial. The people, he says, following the precepts of " the Lord and fearing God, ought to separate themselves " from an overseer who is a sinner, and should not " partaki? in the sacrifices of a sacrilegious bishop ; seeing "that thei/ {the people) themselves have the chief jmioer of " electing' ivorlhy or rejeclinii; umvorthy bishojts. "Which " very rule, as we have seen, has come down from divine " authority, that the bishop, the people being i^resent (or, '* according to the Beneventan text, by the people vjho are " jrresenl), be chosen under the eyes of all and approved " worthy and lit by i)ublic judgment and testimony. "=^ Yan Espen observes that in one important MS. it is " a plebe presente ;" this would show that the clause was not alw^ays in early times read as an ablative of circumstance. -ill BINGHAM — ANTIQUITIES OF THE CHRISTIAN CHURCH, VOl. II., page 15. " And here, first cf all, it will be proper to observe, that " there was no one universal unalterable rule observed in * V;vn Espcn — Vindiciiu Il('Soliitioui8 Lovamiensiuin — Opera, Volume V., page 470. At([ue imprimis qnod attinet Episeoporum elcctioncm ; indiibitatum est, earn per xi. secula pertinuisse ud Clcrniu ct populum Ecclesiio viduat "^ (Hefele— vol. i., p. 195.) The first of the Apostolic Canons - (the most of which date from an early age) provides only that two or three bishops shall be present at ordinations. (Hefele— vol. i., p. 458.) In commenting on the canon of l.icoea in question, ■ifV • Trollope on Papal Conclaves, t Cartwrigbt on Tapal Conclaves. 36 (?■■ 4- J i Bishop Hefele is A'ery precise, following' the indications of the custom which prevailed in the time of Cyprian in th'r», African and Spanish churches. Quoting- Cyprian, he says (vol. i., p. 333) : — " In almost all provinces the busi- " ness is managed in this manner. The nearest bishops " in the ]irovince meet in the city for which the election " is to be held. The Bishop is then elected plebe presente ; " the people are bound to be present at th election, for " singulorum vitam plenUnme novit. The episcopal dignity " is after that conferred universcc fraternitatis >\t and Grregory the Grreat,$ and Leo the Great of * Barrow — Pope's Supremacy. t Socrates — Ecolesiastical History, p. 251. t Gregory of Tourp, vol. 2, p. 241. .f '■ , aic— History of tlie Christian Church, p. li I. j .;!• nn Unitiaiii.— Note on Canon 8, Distinction Gl. So also St. Kichohu .r' elected pope, and bt. Severiis archb'shop, while laymen. The canons in the '"ecrctuni forbidding thtj election of laymen commence from the si.\th century. X Dist. 01, Can. 1— Tlic -^ame view is taken hy Isi'.ore and Dionysius, who are followed by Gratian, in usirg the word ordinari. DcMarca, p. 252, thinks it refers solely to confirmation. § Dist. 64, Can. 2 and Can. 4, and both Canons of Ust. 6G, are admitted to 1 spurious by all. 3 ~''"'J\'^W?; 38 ^. %^ fi, discordant canons in Gratian, relative to the royal power of confirmation. Sometimes it is affirmed and again denied ; and ap:ain other canons go the length of giving the Kings or Emperors the powei of nomination. Gratian^ himself thinks that properly speaking the election belonged to the clergy and the petition to the people, but Bingham shows this is a question of names only, the thing itself was the same, and a concurrence of both orders was re- quisite. Pope Gregory the Greatf write^ to ascertain if an election at Milan really resulted in the unanimous choice by the clergy and people of one Constantius, and if so, to cause him to be ordained by the neighbouring bishops, «.s' ancient c?(sto'>" demands. Stephen^ writes to the Archbishoj) of Kaven. , '' -^ut a vacancy in the see of Imola ; the clergy and laity . to be called together, and the Archbishop is to ordain him, whom they elect, if no canonical objection can be made to him. In like manner Nicholas I.§ writes to the same see saying that no one is to be consecrated unless elected by the clergy and people. It is clearly laid down|| that no one can be consecrated unless he is^canonically elected, and many qualifications and disqualifications are given as being applicable at various times to candidates for episcopal ordination. ^ Gratian^ says that no one was ordained without exami- nation, and a form of examination which was adopted at a Council of Carthage,^^A.D. 398, is given. The candidate who is elected by the clergy and people is ordained if this examination is sustained, and a decree of the Council of * Note to Dist. G2. t Diat. G3, Can. 10, A.D. 593. i Dist. 63, Can, 12, A :». 88G. § Dist. 63, Can. 13, A.D. 857 II Dist. 62, Can. 3. ^ Note to Can, 4, Dist. 24. ** Can, 2, Dist, 23. * 39 Laodicea^ is quotod, that bishops shall he ordainod after examination, hy^ the judgment of the Metropolitan and neig-boring bishops. In the 34th Canon of th^^ O-Srd Dis- tinction, a capitulaiy of the Emperor Le^vis, A. D. 803, is embodied, to the effect that elections shall be made bv the clergy and people, according' to the canons of each diocese, without the intervention of the Emperor. This intervention of the Emperor, and of great princes it is only which is aimed at in Canon 1 of the 63rd Distinction, in a decree of Pope Hadrian, A.D. 869, at that Council of Constantinople,when the whirl of controversy was commen- ced which resulted in the great schism of East and West. The inference from the whole tenor of Gratian's decre- tum is that the ele-^tion was solely with the clergy and people,! and that if the person elected was canonically qualified he must be ordained.^ In cases of doubt the bishops, or generally the Metropolitan, acted judicially and decided according to the laws then in force. At or- dinations three bishops were to be present, the others as- senting. The assent signified is a canonical assent, pre- cisely as the obedience promised in the offices of ordination of priests and deacons is a canonical obedience : both are regulated by the laws of the church. No where is there any sign of the absence of this assent invalidating the election, nor an instance of its having been withheld ; for if there w^as no legitimate objection the assent must be given. Such a thing as an election over an election, which is really what is now claimed for the House of Bishops, is a. noveUy of very recent date, and originated, probably, in the United States of America. • Can. 4, Dist. 24. t Van Espen remarks, p. 85, that throughout the whole of the Decretum of Gratian, there is no allusion to Cathedral Chapters. t So Van Espen Jus. Eccl. Univers, p. 107,—" Metropolitaus una cum Episcopis coriprovincialib"s examine supra electionia forma ae persona electa facto, ad ordinationcm seu consecrationem procederct, sielcctionem canonicam et personam electam idoneam reperisset." i M ,■ "n,5»y.7«|. 40 IV. THE " JUDICIUM " OF THE BISHOPS. If any one should suppose that at any time in tho^ Christian Church the ordaining bishops had no canonical check upon the electing or nominating body, he will be very seriously in error. The appointment of bishops, as remarked by Mr. Gladstone,=^ " is in great degree analogous " to ordinary lay patronage, with respect to the order of " the priesthood." As Van Espenf shows a principle of law underlies all elections that the person chosen must be " dignus," that is, canonically qualified. Papal dispen- sations or the abuse of regal power sometimes overruled disqualifications, but the law of the Church was recognised in these very irregularities. From time to time these qualifications varied. In another j)lace the law of the English Church, now probably in force here, will be cited, it is proper here to dwell upon the fact that the assent of the Bishops tc an election was always a judicial, never an arbitrary assent. Upon this Binghamij: obser res : " When " the election of a person duly qualified, according to the " forementioned rules, was made, then it was the bishop's " office, or the Metropolitan's if the party elect was himself " a bishop, to ordain him." To the like purport Barrow, § " The clergy of the place did i^ropound a person yielding " their attestation to his fitness for the charge ; which the " people hearing, did give their sulirages, accepting him if •' no weighty cause was objected against him ; or refusing * Church and Stato, vol. 2, p. 40. t Vol. 1. p. 705. t Vol. 2, p. 74. § Treatise on the Pope's Supremary, p. 358. ♦ 41 him if such cause did appear ; then upon such lecom- mendation and acceptance the bishops present did adjoin their approbation and consent." This consent -vvas judicial, and was never ^ icheld unless for cause. Van Espen^ shows that the choice of the people could not be rejected but for a legitimate reason. He then states in detail the method usually adopted. After the election a formal decretum,-f a statement in writing of the result, was sent to the Metropolitan, who, with the assis- tance of the other bishops, examined the form of the election as well as the qualifications of the elect, and if all •was found to have been performed canonically, the ordi- nation proceeded in due course. " It is not the business of the Synod of Bishops to elect ** a bishop for a vacant see," says DeMarca,| "but to examine " whether the election is canonically made, and w^iether *^ no legitimate impediments stand in the way of conse- *' oration." And the same au.thor adds :§ — " The autho- •*' rity of the Metropolitan and of the provincial bishops is * Hcec ostcndunt, Metropolitanum ot Episcopos Comprovinciales non ita fuisse clectione po^uli ot cleri constrlctos, quia cam ex causa leyitima rejicire possent. — Van Espen. Jus. Ecclesiasticum Universum, p. 84. f Hoc decreto ucoepto, Metropolitanus convo-'atis sikt: Provinci;!! Episcopis turn electionis formam, turn qnalitatr> Elocti oxaminabat ; quaj si examine instituto Canonica reperiabantur, Electum cum consensu Episcoporum sua) Provincia? in Episcopum consecrabat. — Jus. Ecclesiasticum Universum, p. 84. X DeMarca Concordia Sacerdotii et Imperii, p. 251 — Ea nou erat prascipua istius Concilii cura ut Episcopum eligeret in sede vacante, sod ut examinaret, an clectio canonica ess(!t, an clectus canonicis impedlmentis probiberetur accedere ad Episcopatum, ob bigamiam videlicet, a'tat's defectum, aut ignor- antiam ; et utrum accusatio aliqua adversus eum iustituta esset, et si nihil liorum obsisteret, ordinatio peragebatur. § DeMarca Concordia Imp. ot Sac, p. 251 — Aucto.itas ilia (Metropolitan! ct Episcoporum Cora|>rovinc3itliura) in ea versatur, nou ut clectio ab illis celebretur, sed, ut er.m approbenv aut repudient, ])ront consentanea fuerit aut •contraria canonibus, — atque deiu electi ordinationem aut consecrationem pera- gant. Certum itaquo e,At Episcopos aute Concilium Nica;num elcctos fuisse, •'Cleri et populi mfra'jio. iil ■A ^. 9. Ill I 42 .r^' 4*'"/"' K k " not concerned in the carrying on of an election, but that " they approve or reject it according as it may be in " accordance ivith, or contrary to, the canons ; and that " afterwards they perform the consecration or ordination " of the elected person. // is, moreover, certain that before r " the Nicene Council bishops ivere elected by the suffrage of ^" the clergy and people.^' Many quotations to the same purport might be made, but these will no doubt be sufficient to show that the bishops never had the power of excluding from their order any one who might be canonically qualified and duly elected, and that, in the examination of elections, they proceeded in the same manner as civil judges in secular elections, not by arbitrary will, but by the laws laid down by the Church. To assert the contrary is to place the bishops above the canons and to introduce into the Engli.sh Church the procedure ''ex informata conscien- tia,^' — an extra-judicial process^ applied sometimes in the Roman Church, since the Council of Trent, either to block the advancement of a clergyman or to inflict censure without reason given or fault alleged. It is foreign to English notions of right, as it is confessedly contrary to the principles of canon law ; for to refuse assent without reason given would be to inflict censure upon the Bishop elect who is i)resented for ordination — an injury the more intolerable because it would be inflicted in the dark. On the other hand, the recognition of the right of the bishoi:>s to reject for legitimate cause only, reconciles the contradictions of opposing canonists, and that which under any other theory is a mass of confusion becomes a concordant and intelligible whole. The change proposed by the innovating canon must lead to contention and strife, for it is, in efTect, an election over and subsequent to the election by the Diocesan Synod, so that a bishop- * Vide Evidence of Cardinal CuUen in the O'Keefe case. I Iff IP 43 elect might be rojected not only because he was disliked, bnt because the l)ishops had adopted some peculiar canon or set of canons to guide their own proceedings in such cases. At the Montreal election the iirst collision between the bishops and Synod was caused by a resolution sent down " that the Metropolitan should be selected from the " Episcopal order." This was an uncanonical rule, and was violently resented. The House of Bishops soon placed itself in the right, but the very making of the resolution shows the danger of a i)crmanent antagonism. ill i V. THE ENGLISH LAW. There are recorded in Bingham nine distinct opinions, each supported by learned authority, concerning the vary- ing methods of electing bishops in primitive times, and, although the opinion he has adopted has the merit of re- conciling and uniting the largest mass of authority, and the method now in use in Canada is, in itself, of the most undoubted antiquity, we gladly pass on to the firmer ground of English law. It is stated by Bishop Gibson,^ that " the bishopries of " England, being all of the king's foundation, he is in " right thereof patron of them all ; and being anciently " donative, they were bestowed per traditionem annidi et •' baculif as our books and law affirm.' For in ancient times in England there seems never to hive been any ob- jection taken to the royal appohitment of bishops any more than to the royal appointment oJ any other great magistrate. Besides, at the first, the bishops were royal chaplains, and their dioceses coincided with the ancient .\ Codex Juris EcclcsiaBtki, vol. 1, p. 121. 44 1 limits of old petty Saxon kini^doms. Thoy exist d before parishes, and hen«'e the saying, that the cathedral is the parish church of the diocese. Grradually iindor the or- ganizing hand of Theodore of Tarsus,^ the English eccle- .''iastical system took shape. The missionari<'s became set- iled clergy, and the chaplain of the nobleman or great land-owner became the parish priest, nominated to his beneRce by the descendants of its founder, in the precise method in which the king nominated to the episcopal sees. We have seen (page 'M) the method in use in Edward the Confessor's time ; the ancient kings of Wales nominated in like manner. To this right of nomination the English kings tenaciously clung, and although it w^as wrested from them for a short time, under Henry I. and Henry II., it was not until the reign of John that the elections finally devolved upon the chapters, but from that time the Papal power (then at its zenith), under various pretexts and by the multiplication of forms, in- sensibly drew the larger number of appointments into the hands of the Popes. This continued until the time of Henry YITL, when the Crown resumed its ancient rights by really nominating under the form of the con^e cVelire w^hich Henry I. had instituted. The nomination was contained in the letter-missive which was thence- forth sent with the permission to elect. During the reign of Charlemagnef ];>opular election in France and G-ermany was a mere form. The Emperor absolutely nominated ; but in the 12th century, after a long struggle with Home, the Chapters obtained the privilege, for the prior custom of popular election was very tuicongenial to the notions of rulers in those des- potic times. But the Kings of Spain,J after the 7th cen- tury, never gave uj) their power of nomination. The * Green's Short History of the English People, p. 05. t Milman's Latin Christianity, vol. 2, p. 495. X Miiman — Latin Chrltitianity, vol. 1, p. 521— Decree of Council of Toledo, "Quod regiaj potestutis sit oligcre cpiscopos." ■S^.;- 45 Kings of Franco won back the right by a concordat* be- tween Francis 1. and Leo X., and in nearly all Roman Catholic countries, to the present day, either by ancient custom or by concordat with the Pope, the nomination of bishops is in the hands ol'the Crown. But if, as we have seen (page 40), a bishopric was considered as a larger benefice,! the unvarying law of benelices applied throughout. Whether the prelate was presented by king, chapter or people, he must be a pro- perly qualified person according to the laws of the Church at that time. So it was formally (Expressed by Lord Chelmsford :$ " If the clerk bo idonea persona the Bishop *' is bound to institute ;" and the same law applies to the case§ of bishops in the Church of England, but in practice the statute o( prcemutiire (which is inapplicable to Canada) checks the full operation of the canon law. This x)oint has been raised four times since the Reformation — first at the confirmation of Bishop Montague, when the objec- tions were not heard owing to a defect of form, although the Yicar-G-eneral acknowledged that had the proper forms been observed he would have heard the applica- tion. In 1848 the Dean and Chapter of Hereford were compelled to elect Dr. Hampden, much against their will, and at the confirmation the Court refused to hear objec- tions. An application was made to the Court of Queen's Bench for a writ of mandamus to compel the Vioar-G-ene- ral to hear the objector. The four judges who heard the application were ecj^ually divided, and the writ did not issue. In the case of Dr. Temple the objectors were heard by the Yicar-General, Sir Travers Twiss, bit their allega- » Uupin — Droit Public Ecclesiastiqno. t Phillimore — Ecdcs'astical Law, vol. 1, p. 26. J Ex parte Jenkins, 2 P. C, 258. § « It is," says Phillmore, " the opinion of all canonists that Catholic « Princes, in countries where Church and State are united, have a right to « nominate the bishop as a private patron, but tlie person must be iJoneus." ■ i; lit 46 tioiis wt'i-e not admittod to proof, for ho decided that thoy had come too late and that he had no power to do aught but conlirni after the issue of the Queen's niandntc.* The proper course, in his opinion, would have been by- petition or humble request to the Queen not to issue her mandate for conlirmation. The matter was not in this instance carried any furthtM-, and the confirmation and consecration were completed. If, however, in these instances the Archbishop and consecrating- bishops had refused to proceed, we would have had a precise parallel to a case which might arise in Canada, for, in the words of Mr. Justice Patterson,-}- '' ii &ny lawful impediment came " to his (the Archbishop's) knowledge, I cannot believe " that the legislature intended to force him, knowingly " and without regard to such impediment, to perform the " solemn act of consecration." VI. THE LAW IN CA.NADA. r If any body of persons, said Lord Romilly,$ band them- selves together and call themselves the Church of England, they are by implied agreement bound to its laws, discipline and ordinances except so far as any statutes may exist, which (though relating to this subject) are confined in their operation to the limits of the United Kingdom of England and Ireland. This judgment is fol- lowed by Chief Justice Draper in his valuable report on the status of the Church of England in Canada ; but n-oino- beyond it, he shows Irom statutes, Colonial and British, as well as from the initial declaration which preceded all ten- * Phillimorc — Ecclesiastical Law, p. 55. t rhillimove — Ecclesiastical Law, p. GO. t lU.'^hop of Natal Ds. Gladiitoue. / I : I 47 tativen towards synodal organisation, that tin- Enuiibh Church in Canada is an integral part of tho Church of Englaiul, in its faith, doctrine, and discipline. It may be said, without hesitation, that the Canon Law of the Cana- dian branch has for its foundation the Canon Law of the Mother Church, so far as it is applicable to this country, and so far as it is not altered by Colonial statutes or by the consensual legislation of the Colonial Synods. From this it will follow that the qualilications for a bishop elect in Canada are now the same as for a bishop in Eng- land. These qualifications are recited in the petition of the Proctor, who, in the name of the Dean and Chapter, in an English election sets forth the regularity of the election and the merits of the person elected. This instrument declares : lst.=^ That the See was vacant ; 2nd. That the Dean and Chapter, having appointed a day, duly summoned all concerned ; tird. That they unanimously chose the person elected ; 4th. That the election w^as published to the assembled clergy and people ; 5th. That the consent of the elect* d person was obtained ; 6th. That the person elected was a prudent and discreet man — qualified by his learning and know- ledge of the Holy Scriptures — exemplary in life and morals — of free condition, lawful age and legitimate birlh — in priests' or bishops' orders — devoted to God — necessary to the aforesaid church — faithful and useful to the king and to his state and kingdom ; 7th. That the election was notified to the king ; 8th. That the king had consented ; 9th. That the king had issued letters patent requiring the archbishop to coniirm. Under the sixth article of this petition, therefore, the present legal per- sonal qualifications for a bishop in Canada will be found, and the choice of every diocesan synod is limited to men possessing them, for there is not here a " statute of pra3- ♦ Bishop Gibson, Codex Juris Ecclesiastici, vol. 1, p. 120. 48 muuire " to enforce an unreasonable choice as in England, and if a maiidamus were applied for to compel the bishops to consecrate, the Courts would most certainly refuse to interfere unless a flagrant injustice could be shown. The form oi confirmation has never been introduced into Canada. It was originally nothing but an enquiry as to who was elected, for in the early ages election was in itself confirmation,* unless the election was disputed. So Aurolian, a pagan emperor, confirmed a disputed elec- tion at Antioch, and the emperors afterwards claimed that right when elections grew turbulent and as bishops began to hold lands. Until the eleventh century the bishops of Home were confirmed by the emperors, f The popes gradually wrested this right from the sovereigns, and ousted the emperors from interference in papal elections. The three stages of election, confirmation and consecra- tion are easily aistinguished in England, l>y eontirma- tiont a bishop elect gains jurisdiction, and is enabled to administer the temporalities and spiritualities of his dio- cefJ3. By consecration he obtains oro. •, and is enabled to perform those spiritual functions peculiar to the epis- copal order. A srointment of officers in contra vontion of the statute than it can legislate upon the elec of Diocesan lay Delegates. TLose statutes are a biandini evi- dence of the oriiinal consensus of the member^ of the Church of England in this country, and it is innovation and not conservatism which takes a single canon of the Council of Nica3a, and with it seeks to modify the funda- mental statute ui)on which all our legicshiion rests. Not only that, but the Canon is taken :'n a sense con- trary'' to the whole course of history. Tne interpretation given by Dean Stanley is the one universally received at all times by the Church in England. AVhen was it ever heard that an election made either by King or Chapter, } I ^ 52 was overruled by the bishops of the province ? As we have stated before, the validity of all acts done in the Anglican Church since the Reformation rests upon the canonicity of Archbishop Parker's consecration. If his appointment is invalid the clergy and bishops of the Church of England are laymen. Now Parker was ordained in spite of the refusal^ of all the bishops of Eng- land to take part in the ceremony. He was ordained by four bishops who had been exiled by Queen Mary, one of whom was a sulFragan, without jurisdiction, and the other three were bishops then without sees, two of whom were afterwards confirmed by the archbishop. They were all bishops, duly consecrated as to orders, and the consecra- tion of Parker was perfectly valid, even by the canon law of Rome at that time, but under the present interpretation of the fourth canon of Nicoca it was irregular. If this in- terpretation is to be held it will be difficult to meet the objections of Roman Catholics who may take us upon our own u'round. In this manner Palmer was driven bv Car- dinal AViseman to fall back on the Apostolic Canons which decree that ordination by two bishops is sufficient. These considerations are put forward not to impugn the validity of Archbishop Parker's consecration, but to show that the change proposed in Canada is a novely which tends to weaken the whole basis of the reasoning by which only Anglican orders can be defended. In every synod report, diocesan or provincial, will be found the statutes we refer to. The second Act refers to Diocesan lay Delegates, and has no bearing on the point at issue. The iirst Act has two clauses only. The first clause refers to diocesan synods, and the second to the Provincial Synod. The powers granted are defined clearly, and each body derives them separately from the same source. It is a parallel case to the British North. i[ I'almor — Episcopacy Vindicat'-d. 15p. Short— History of tho Church of England, p. 195. -.:,-; ■nti^.c^ iSf'. f 18 America Act, under whicli the powers granted to the smaller bodies cannot be invaded by the Dominion Par- liament. Now, among' the powers granted to the diocesan synods in the Hrst clause of the Act, is that oi making regulations " lor the appointment, &c., of any person " bearing office therein of ivhatever order or degree, any •' rights of the Crown to the contrary notwithstanding." This clause^ covers, and was intended to cover, the elec- tion of bishops, and the nominating rights of the Crown were thus transferred to the diocesan synods alone. The second clause, referring to the Provincial Synod, is very vaguely expressed, simply empowering- the making of " general arrangements for good government," whereas the pow^ers enumerated in the iirst clause are specific. Inasmuch as no stream can rise higher than its source, it is beyond the power of the Provincial Synod to re-arrange the distribution of rights laid down in this Act unless with the separate conseiit of each diocese concerned. Concerning this matter the Diocese of Montreal has spoken. By a unanimous vote it adopted a report stating " that it would be inexpedient to make any chai>ge in the " present mode of electing a bishop." If the Provincial tSynod then choose to make any regulation touching the appointment of diocesan bishops, it will be done with the full knowledge thai whenever their regulation is attempted to be put in. force a conflict will arise in which the diocese whose rights are invaded must be victorious. * In support of thi.K, tsee u letter dated November 27, 1866, from Mr. Chancellor Bethimo to the Metropolitan, Bishop Fulford, then in England : — " So far as the Crown is concerned, it may fai iy be doubtf d whevhcr the Crown " has not really alirogated its prerogative by consenting to a law which vests " the appointment of l)ishop.s aolelji toith the diocesan syno h of the Provincs." . The learned Chancellor is arguing against a proposition much more Nicene than the present viz ; that the bi.shops should take their confirmation from the Archbishop of Canterbury.