The Legal History of Bishops and Archbishops
This section provides an overview of Bishops and Archbishops across their history. See below for more information.
In Anglican. the established Church of England the appointment of bishops is vested effectively in the crown, though the old form of election by the cathedral chapter is retained. They must be learned presbyters at least thirty years of age, born in lawful wedlock, and of good life and behaviour. The mode of appointment is regulated by 25 Henry VIII. c. 20, re-enacted in 1 Elizabeth c. 1 (Act of Supremacy 1558). On a vacancy occurring, the dean and chapter notify the king thereof in chancery, and pray leave to make election. A licence under the Great Seal to proceed to the election of a bishop, known as the congé d’eslire, together with a letter missive containing the name of the king’s nominee, is thereupon sent to the dean and chapter, who are bound under the penalties of Praemunire to proceed within twelve days to the election of the person named in it.
In the event of their refusing obedience or neglecting to elect, the bishop may be appointed by letters patent under the Great Seal without the form of election. Upon the election being reported to the crown, a mandate issues from the crown to the archbishop and metropolitan, requesting him and commanding him to confirm the election, and to invest and consecrate the bishop-elect. Thereupon the archbishop issues a commission to his vicar-general to examine formally the process of the election of the bishop, and to supply by his authority all defects in matters of form, and to administer to the bishop-elect the oaths of allegiance, of supremacy and of canonical obedience (see Confirmation of Bishops). In the disestablished and daughter Churches the election is by the synod of the Church, as in Ireland, or by a diocesan convention, as in the United States of America.
Besides the functions exercised in virtue of their order, bishops are also empowered by law to exercise a certain jurisdiction over all consecrated places and over all ordained persons. This jurisdiction they exercise for the most part through their consistorial courts, or through commissioners appointed under the Church Discipline Act of 1840. By the Clergy Discipline Act of 1892 it was decreed that the trial of clerks accused of unfitness to exercise the cure of souls should be before the consistory court with five assessors. Under the Public Worship Regulation Act of 1874, which gave to churchwardens and aggrieved parishioners the right to institute proceedings against the clergy for breaches of the law in the conduct of divine service, a discretionary right was reserved to the bishop to stay proceedings.
The bishops also exercise a certain jurisdiction over marriages, inasmuch as they have by the canons of the Church of England a power of dispensing with the proclamation of banns before marriage. These dispensations are termed marriage licences, and their legal validity is recognised by the Marriage Act of 1823. The bishops had formerly jurisdiction over all questions touching the validity of marriages and the status of married persons, but this jurisdiction has been transferred from the consistorial courts of the bishops to a court of the crown by the Matrimonial Causes Act of 1857. They have in a similar manner been relieved of their jurisdiction in testamentary matters, and in matters of defamation and of brawling in churches; and the only jurisdiction which they continue to exercise over the general laity is with regard to their use of the churches and churchyards. The churchwardens, who are representative officers of the parishes, are also executive officers of the bishops in all matters touching the decency and order of the churches and of the churchyards, and they are responsible to the bishops for the due discharge of their duties; but the abolition of church rates has relieved the churchwardens of the most onerous part of their duties, which was connected with the stewardship of the church funds of their parishes.
The bishops are still authorized by law to dedicate and set apart buildings for the solemnization of divine service, and grounds for the performance of burials, according to the rites and ceremonies of the Church of England; and such buildings 3 and grounds, after they have been duly consecrated according to law, cannot be diverted to any secular purpose except under the authority of an act of parliament.
The bishops of England have also jurisdiction to examine clerks who may be presented to benefices within their respective dioceses, and they are bound in each case by the 95th canon of 1604 to inquire and inform themselves of the sufficiency of each clerk within twenty-eight days, after which time, if they have not rejected him as insufficiently qualified, they are bound to institute him, or to license him, as the case may be, to the benefice, and thereupon to send their mandate to the archdeacon to induct him into the temporalities of the benefice. Where the bishop himself is patron of a benefice within his own diocese he is empowered to collate a clerk to it,—in other words, to confer it on the clerk without the latter being presented to him. Where the clerk himself is patron of the living, the bishop may institute him on his own petition. (See Benefice.)
As spiritual peers, bishops of the Church of England have (subject to the limitations stated below) seats in the House of Lords, though whether as barons or in their spiritual character has been a matter of dispute. The latter, however, would seem to be the case, since a bishop was entitled to his writ of summons after confirmation and before doing homage for his barony. Doubts having been raised whether a bishop of the Church of England, being a lord of parliament, could resign his seat in the Upper House, although several precedents to that effect are on record, a statute of the realm, which was confined to the case of the bishops of London and Durham, was passed in 1856, declaring that on the resignation of their sees being accepted by their respective metropolitans, those bishops should cease to sit as lords of parliament, and their sees should be filled up in the manner provided by law in the case of the avoidance of a bishopric. In 1869 the Bishops’ Resignation Act was passed. It provided that, on any bishop desiring to retire on account of age or incapacity, the sovereign should be empowered to declare the see void by an order in council, the retiring bishop of archbishop to be secured the use of the episcopal residence for life and a pension of one-third of the revenues of the see, or £2000, whichever sum should prove the larger. Other sections defined the proceedings for proving, in case of need, the incapacity of a bishop, provided for the appointment of coadjutors and defined their status (Phillimore i. 82).
In view of the necessity for increasing the episcopate in the 19th century and the objection to the consequent increase of the spiritual peers in the Upper House, it was finally enacted by the Bishoprics Act of 1878 that only the archbishops and the bishops of London, Winchester and Durham should be always entitled to writs summoning them to the House of Lords. The rest of the twenty-five seats are filled up, as a vacancy occurs, according to seniority of consecration. (1)
The title of bishop survived the Reformation in certain of the Lutheran churches of the continent, in Denmark, Norway, Finland, Sweden and Transylvania; it was temporarily restored in Prussia in 1701, for the coronation of King Frederick I., again between 1816 and 1840 by Frederick William III., and in Nassau in 1818. In these latter 4 cases, however, the title bishop is equivalent to that of “superintendent,” the form most generally employed. The Lutheran bishops, as a rule, do not possess or claim unbroken “apostolic succession”; those of Finland and Sweden are, however, an exception. The Lutheran bishops of Transylvania sit, with the Roman and Orthodox bishops, in the Hungarian Upper House. In some cases the secularization of episcopal principalities at the Reformation led to the survival of the title of bishop as a purely secular distinction. Thus the see of Osnabrück (Osnaburgh) was occupied, from the peace of Westphalia to 1802, alternately by a Catholic and a Protestant prince.
From 1762 to 1802 it was held by Frederick, duke of York, the last prince-bishop. Similarly, the bishopric of Schwerin survived as a Protestant prince-bishopric until 1648, when it was finally secularized and annexed to Mecklenburg, and the see of Lübeck was held by Protestant “bishops” from 1530 till its annexation to Oldenburg in 1803. The title prince-bishop, attached in Austria to the sees of Laibach, Seckau, Gurk, Brixen, Trent and Lavant, and in Prussia to that of Breslau, no longer implies any secular jurisdiction, but is merely a title of honour recognized by the state, owing either to the importance of the sees or for reasons purely historical. (2)
Bishop, Trust, Successors
From the book The Clergyman’s Hand-book of Law, about Bishop, Trust, Successors (1): A deed of land to the bishop of a church for a Protestant Episcopal church in fee simple, created a trust and on the death of such bishop the title passed to his successors.513 Where a grantee in a deed absolute on its face, is in fact archbishop of the Roman Catholic Church for his diocese, its canons and decrees regulating the mode of acquiring and holding church property are competent evidence to show that the property is so held in trust for purposes for public worship and other charitable uses. And property so held by a Catholic bishop in trust for the diocese, or in trust for a congregation, school, cemetery, or asylum, for the separate use of each, is not chargeable with any part of the expenses of another one or for improving the church property generally in the diocese. (3)
Notes and References
- Encyclopedia Britannica (11th Edition)
- Charles M. Scanlan, The Clergyman’s Hand-book of Law. The Law of Church and Grave (1909), Benziger Brothers, New York, Cincinnati, Chicago
- Hoy Order
- Legal Traditions
- Ecclesiastical Jurisdiction
- Bishops and Archbishops in the Oxford International Encyclopedia of Legal History (Oxford University Press)
- Phillimore’s Ecclesiastical Law
- Bishops and Archbishops in the Dictionary of Concepts in History, by Harry Ritter
- A Short History of Western Legal Theory, by John Kelly