326 permitted to neglect at their pleasure the execution of the The writs. It is a moot question, in which of the two Houses clergy s of Parliament the representatives of the chapters and of the place iii beneficed clergy sat, when summoned to Parliament, and parliament. w j ie j ; } ier they had a deliberative vote, or only a consultative voice. According to the " Modus tenendi Parliamentum " the proctors of the clergy sat and voted in the Lower House of Parliament. But the authority of that treatise has been impugned by many writers, because the introduc tory paragraph announces it to be a description of the manner of holding a Parliament in the time of King Edward, the son of Ethelred, and of William the Conqueror and his successors. The treatise itself, however, is not a mere imposture, as Dr Hody has contended in his History of English Councils and Convocations. It is found in several MSS. of the 14th century, and the Parliamentary writs and records of the reign of Edward II. warrant us in re garding it as a treatise framed after the actual constitution of Parliament in the reign of that king. 1 This treatise contains a chapter entitled " De Auxilio Regi," in which it is explicitly stated that the proctors of the clergy sat in the Lower House, and voted as members of the Commons on all questions which required the consent of Parliament.
- Ideo oportet, quod omnia quae affirmari vel iufirmari,
concedi vel negari, vel fieri debent per Parliament um, per communitatem Parliamenti concedi debent, quae est ex tribus gradibus sive generibus Parliamenti, scilicet ex procurator! bus cleri, militibus comitatuum, civibus et burgensibus, qui repraesentant totam communitatem ; et non de magnatibus, quia quilibet eorum est pro sua propria persona ad Parliamentum, et pro nulla alia." This view is borne out by the language of the petition of the Lower House itself in the Convocation of 1547 (1 Edward VI.), that " according to the ancient custom of this realm and the tenor of the king s writs for the summoning of the Parliament, which be now, and ever have been, directed to the bishops of every diocese, the clergy of the Lower House of Convocation may be adjoined and associated with the Lower House of Parliament" (Cardwell s Synodalia, p. 421). The weight of evidence would thus seem to be in favour of the view that the proctors of the clergy, when summoned to Parltamsnt under the " praemunientes" clause, sat and votei in the Lower House of Parliament, which is not altogether irreconcilable with the statement in Lord Coke s Fourth Institute, that the proctors of the clergy never had a voice in Parliament, " because they were no lords of Parliament." The reason alleged in this passage of the Fourth Institute is clearly inadequate as regards the Lower House, inasmuch as the magnates were excluded from it ; but if the compiler of the Fourth Institute had in view the Upper House he is justified in saying that the proctors of the clergy did not vote in that House. Convoca- It has been matter of controversy between divines and tion more lawyers, whether the Convocations of the two provinces are provincial P r P er ^y * be regarded as high courls of the spirituality council. f th e realm of England, or as ecclesiastical councils of their respective metropolitans. The divines prefer to regard them as provincial councils, although perhaps in so doing they unconsciously depreciate them. It may be admitted that there is nothing in the constitution of either Convocation which is inconsistent with its being a provincial council sui generis, as the constituent elements of provincial councils vary indefinitely according to the custom of different national churches, for instance the parochial clergy, whose presence by their representatives is a remark able feature of the Convocation of the two provinces, have been allowed to appear by their representatives in more 1 Sir Thomas Duff us Hardy, who edited this treatise for the Record Commissioners in 1846, places it somewhere between 1294 and 1327. than one provincial council of the ancient Gallican Church ; but the Convocations of the province of Canterbury and of York, as summoned in pursuance of a royal writ, are assuredly something more than ecclesiastical councils of their respective metropolitans. There is the high authority of Lord Coke for regarding the Convocations of the tvo provinces as courts of the spirituality, and the Upper House of Convocation is by statute (24 Henry VIII. ch. 12) con stituted the high court of appeal in matters in which the Crown is a party in any cause before an ecclesiastical court. Perhaps the true solution of the controversy will bu found in distinguishing the Upper House of Convocation from the Lower House, and just as the Upper House of Parliament is the High Court of Parliament which exercised the judicial functions of the Parliament, so the Uppei House of Convocation is the High Court of Convocation the Lower House having the right to make presentment;; to the Upper House in like manner as the Lower House ol Parliament has the right to prefer impeachments before tin Upper House of Parliament, but not to take part hi adjudicating upon them. There is, indeed, an instance on record of a kind of cumulative vote of the Lower House oi Convocation in 1G40, when it added its voice to that oi the Upper House in suspending a member of the Uppei House (the bishop of Gloucester) from his office and benefice ; but this was rather a question touching the privileges of the two Houses in a business which they con sidered to have brought scandal on the proceedings of the Convocation, the bishop of Gloucester having refused to conform himself to a resolution of both Houses in a matter of subscription to certain new canons. This, however, is not a precedent of a safe period. There is, indeed, another point of view from which the Convocation appears to have all the attributes of a high court of the metropolitan, inas much as the metropolitan, when he presides, or his com missary in the absence of the metropolitan, has the coercive power of an ecclesiastical judge in respect of the members of the Convocation : he directs absolutely the course of business ; he may pronounce the members con tumacious and punish their contumacy by suspension from office, or by sequestration of benefice, and at his pleasure may remit the penalties, and upon submission absolve the offender. He may further suspend the sittings of Convoca tion when he sees fit, and may continue them to such times as he thinks proper; and a schedule, or written sentence of continuation and prorogation at the termination of each session, is signed by the archbishop or his commissary, in which he is described as " judicially sitting." A curious argument has been raised in modern times upon the wording of certain ancient schedules in which it is recited that the archbishop has continued and prorogued the Con vocation to acertain day "cumconsensu confratrumsuorum." It has been contended that these recitals are not consistent with the claim of the metropolitan to prorogue the Convoca tion at his pleasure. But this argument is founded on a total misconception of the object of these recitals, which was to savs the legal right of the metropolitan to pronounce the bishops and clergy contumacious, if they should not attend on the day to which the Convocation was continued. Of strict right the members of Convocation were not liable to be pronounced in contempt, unless they had been cited in lawful manner to attend upon the archbishop on a given day; but if they were consenting parties to the continuation of the sittings of the Convocation to a future day, and their consent was recorded in the instrument of continuation, which is read aloud before it is signed by the metropolitan, they would thereby be perempted of all excuse for non- attendance on the plea that they had not been duly cited, Such we conceive to be the true meaning of this clause,
which is rarely found in the older schedules, but occurs