Coke has stated as the provisions of one statute, the subsequent text-writers have adopted as the joint result of both statutes,-a result upon which Lord Coke himself expressed no opinion. There are several passages in the Fourth Institute relevant to this subject. The first is to be found in Cap. 74, p. 323., under the head of "Courts of Convocation." In the margin, the 24 H. 8. c. 12. and 1 Eliz. c. 1. are noted; and, opposite to these statutes, and plainly only referring to them, the text states, "If any cause shall depend in contention in any ecclesiastical court, which may or shall touch the King, the party grieved shall or may appeal to the upper house of convocation." And it is to be observed that this passage, which refers to the 24 H. 8. c. 12., inaccurately states, that, by that statute, if any cause shall depend touching the King, appeal shall be to the upper house of convocation; whereas, that statute applies only to certain classes of causes there enumerated. The 1 Eliz. c. 1. is only referred to, because it repealed a repealing statute passed in the reign of Philip and Mary, and revived the 24 H. 8. c. 12. and 25 II. 8. c. 19., and other statutes. In p. 337 of the Fourth Institute, under the title of "The court of the Arches of the Archbishop of Canterbury," after speaking of the judge of the court, the text states," He hath ordinary jurisdiction in spiritual causes in the first instance, and, by appeal, through the whole province of Canterbury, as it appeareth by the statute of 24 H. 8. c. 12. And from this court of the Arches the appeal is to the King in chancery, by the said act of the 25 H. 8." It is to be ooserved, that, in this passage, which refers, not to cze of the statutes only, but to both, the appeal is stated to be to the King in chancery, in general terms, and not as subject to any restriction to cases that touch the King. 1850. Ex parte The Bishop of EXETER. 1850. Ex parte The Bishop of In page 339, under the head of "The Court of Delegates, and consequently of appeals," there is noted in the margin the statute of 25 H. 8. c. 19.; and the text opposite states that "the court sits upon appeals to the King in chancery in three causes,-first, when sentence is given in any ecclesiastical cause by the archbishop or his official, secondly, when any sentence is given in any ecclesiastical cause in places exempt, - - thirdly, when a sentence is given in the Admiralty court." Thus, the three classes of causes are treated as subject to the same appeal, with no exception; it being quite obvious that the second and third classes have no relation to the court of convocation. In another passage in p. 339., Lord Coke states, "that, as appeals are grounded upon acts of parliament, it will be pertinent to set down the resolution of the judges, and of the learned in ecclesiastical law, which doth sum up in what causes, from what courts, and in what time, appeals are to be made, and other necessary incidents concerning the same, as the Lord Dyer, under his own hand, hath reported." And, after this passage, and under the head of "Appeals," is noted in the margin the statute of 24 H. 8. c. 12. and " that, in causes testamentary, &c., appeals from the archdeacon shall be to the bishop, and from the bishop to the archbishop, and no further," and proceeds, under the word "Item," "from the archdeacon or commissary of the archbishop, to the arches, &c." Opposite to this passage, in the margin, are the words "See infra. This is altered by the statute of 25 H. 8., in the next page." Then follows" Item. where the matter toucheth the King, the appeal is to be made to the higher convocation house of that province, and no further, to be finally there determined." Then again is quoted in the margin the 25 H. 8. c. 19. and, opposite to that quotation, in the text, are the words, "A general prohibition that no appeals shall be pursued out of the realm, to Rome or elsewhere. Item. A general clause, that all manner of appeals, what matter soever they concern, shall be made in such manner, form, and condition within the realm, as it is above ordered by the 24 H. 8. in the three causes aforesaid, viz. from the archbishop's court to the King in his chancery, where a commission shall be awarded for the determination of the said appeal; and from thence no further." And, again, in the margin is a note-"See the page precedent." "Item. That persons exempt shall likewise pursue their appeal in the chancery, ut suprà, and not to the archbishop." The author here has merely been setting down the effect of the statutes, in succession: and, when he speaks of appeals to the convocation, it is under the head of the statute of the 24 H. 8. It was not understood, when the motion was made, that the passages then read referred to particular statutes noted in the margin: and, in fact, there is no passage to be found importing that an appeal to the convocation is given in any case whatever under the 25 H. 8. c. 19. Such are, it is believed, all the passages in the Fourth Institute which have any relation to this subject. The next authority referred to was Bacon's Abridgment (a), "Of appealing from an inferior to a superior court." It is there said, that, "by the 24 H. 8. c. 12., from the archdeacon's court, tne appeal is to the bishop: but, when the cause is commenced before an archdeacon, or any archbishop, or his commissary, the appeal is to the court of Arches." It is then stated, that, "by the 25 H. 8. c. 19., the appeal from the Prerogative court is to the King in chancery, who appoints delegates, by commission, to hear and determine the appeals." "And it seems by the said statute, that an appeal from the (a) Title Ecclesiastical Courts (B). 1850. Ex parte The Bishop of EXETER. Arches is to be to the King in chancery." There is a reference in this last paragraph to the margin, in which there is a note stating, "that, by the 24 H. 8. c. 12., such appeal is to be to the archbishop; and so is the Fourth Institute, 341." The text then proceeds thus:"Also, by the 25 H. 8. c. 19., appeals of the court of peculiars, or places exempt, shall be henceforth into the chancery. If the matter concerns the King, the appeal must be to the higher house of convocation." In the margin is quoted as the authority for this statement, 4 Inst. 339, 340., which, as has been before observed, does not purport to be an authority that appeals under the 25 H. 8. c. 19. touching the King, are to the convocation, but rather the contrary: and in Bacon's Abridgment, in the passage previous to the statement referred to, when speaking expressly of the 25 H. 8. c. 19., it is said, without qualification "The appeal from the Prerogative court is said to be to the King in chancery:" and, under the head of the "Court of Delegates," there is a paragraph setting forth the 4th section of the 25 H. 8. c. 19. in terms, without any qualification whatever in regard to the appeal there given, from the archbishop to the King in chancery. The only passage, therefore, in this book, which gives colour to the argument, is, the short paragraph stating, that, "if the matter concerns the King, the appeal must be to the higher house of convocation;" and which refers, as before mentioned, to the passage in the Fourth Institute. Comyns's Digest (a) has also been cited. It is there said: "In causes ecclesiastical, if the King be concerned, there shall be an appeal to the upper house of convocation. "This passage also refers, as the authority, to 4 Inst. 339, 340., and to the title "Prerogative," (a) Title Convocation, (D.), " The Jurisdiction." (D. 15.). Under this reference, appeals to the convo- Woodeson's Lectures (a) was also referred to. The author, in speaking of the 25 H. 8. c. 19., and of the (a) Vol. I. p. 76. 1850. Ex parte The Bishop of EXETER. |