N

ormsin

Mhg5l 1845* N7

SOME OBSERVATIONS

ON THE JURISDICTION

HOUSE OF CONVOCATION.

JOHN P. NORMAN, M.A.,
OP THE INNER TEMPLE,
SPECIAL PLEADER.

OXFORD:
PRINTED AND PUBLISHED BY J. VINCENT*
AND G; BELL, FLEET-STREET, LONDON,
1845.

SOME OBSERVATIONS, &c.

At a meeting of the Hebdomadal Board of Heads of
Houses and Proctors, it was agreed that the following-
proposition should be submitted to Convocation, on the
13th of February instant : —
" Whereas it is notoriously reputed and believed throughout
this University, that a book entitled ' The Ideal of a Christian
Church considered,1 has recently been published in Oxford,
by the Rev. William George Ward, M.A., in which book are
contained the following passages : viz.
" P. 45, (note). 'I know no single movement in the Church
except Arianism in the fourth century, which seems to me
so wholly destitute of all claims on our sympathy and
regard, as the English Reformation.''
" P. 473. ' For my own part, I think it would not be right
to conceal, indeed I am anxious openly to express, my own
most firm and undoubting conviction,— that were we as a
Church, to pursue such a line of conduct as has been here
sketched, in proportion as we do so, we should be taught
from above to discern and appreciate the plain marks of
Divine wisdom and authority in the Roman Church, to
repent in sorrow and bitterness of heart our great sin in
deserting her communion, and to sue humbly at her feet for
pardon and restoration.'

4
" P. 68. ' That the phrase " teaching of the Prayer-book,"
conveys a definite and important meaning, I do not deny ;
considering that it is mainly a selection from the Breviary,
it is not surprising that the Prayer-book should, on the
whole, breathe an uniform, most edifying, deeply ortho
dox, spirit ; a spirit which corresponds to one particular
body of doctrine, and not to its contradictory. Again, that
the phrase " teaching of the Articles" conveys a definite
meaning, I cannot deny ; for (excepting the five first, which
belong to the old theology) they also breathe an uniform
intelligible spirit. But then these respective spirits are not
different merely, but absolutely contradictory ; as well
could a student in the heathen schools have imbibed at
once the Stoic and the Epicurean philosophies, as could a
humble member of our Church at the present time learn his
creed both from Prayer-book and Articles. This I set out
at length in two pamphlets with an appendix, which I
published three years ago ; and it cannot therefore be
necessary to go again over the same ground ; though some
thing must be added, occasionally in notes, and more
methodically in a future chapter. The manner in which
the dry wording of the Articles can be divorced from their
natural spirit, and accepted by an orthodox believer ; how
their prima facie meaning is evaded, and the artifice of
their inventors thrown back in recoil on themselves ; this,
and the arguments which prove the honesty of this, have
now been for some time before the public.'
" P. 100 (note). 'In my pamphlets three years since, I distinctly
charged the Reformers with fully tolerating the absence
from the Articles of any real anti-Roman determination, so
only they were allowed to preserve an apparent one ; a
charge, which I here beg as distinctly to repeat.'
" P. 479. ' Our Twelfth Article is as plain as words can make
it, on the " evangelical" side (observe in particular the word

" necessarily") : of course I think its natural meaning may
be explained away, for I subscribe it myself in a non-
natural sense.'
"P. 565. 'We find, oh most joyful, most wonderful, most
unexpected sight ; we find the whole cycle of Roman doc
trine gradually possessing numbers of English Churchmen."
" P. 567. ' Three years have passed since I said plainly, that
in subscribing the Articles, I renounce no one Roman
doctrine.' " And whereas the said William George Ward, before the
publication of the said book, was admitted to the respective
degrees of B.A. and M.A. of this University, on the faith of
the following declaration ; which declaration was made and
subscribed by him before and in order to his being admitted
to each of the said degrees ; that is to say : — ' I allow the
Book of Articles of Religion, agreed upon by the Archbishops
and Bishops of both provinces, and the whole clergy in the
Convocation holden at London, in the year of our Lord God
one thousand five hundred sixty and two ; and I acknowledge
all and every the Articles therein contained, being in number
nine-and-thirty, besides the ratification, to be agreeable to the
Word of God :'
" And whereas the said passages of the said book appear to
• be inconsistent with the said Articles, and with the said
declaration, and with the good faith of him, the said William
George Ward, in making and subscribing the same :
" In a Convocation to be holden on Thursday, the 13th day
of February next, at one o'clock, the foregoing passages from
the said book will be read, and the following Proposition will
be submitted to the House : —
" That the passages now read from the book entitled ' The
Ideal of a Christian Church considered,' are utterly in
consistent with the Articles of Religion of the Church of
England, and with the Declaration in respect of those

6
Articles made and subscribed by William George Ward
previously and in order to his being admitted to the
degrees of B.A. and M.A. respectively, and with the
good faith of him the said William George Ward in
respect of such Declaration and Subscription.

" Before the question ' Placetrie, &c.' is put, the Vice-
Chancellor will give Mr. Ward an opportunity of answering
to the charge of having published such passages so inconsistent
as aforesaid.
" If this Proposition is affirmed, the following Proposition
will be submitted to the House :
"That the said William George Ward has disentitled him-
" self to the rights and privileges conveyed by the said
" degrees, and is hereby degraded from the said degrees
" of B.A. and M.A. respectively.
" Before the question ' Placetne, &c.' is put, the Vice-
Chancellor will give Mr. Ward an opportunity of stating any
grounds he may have for shewing that he should not be
degraded." It will be observed that the charge against Mr. Ward
is a criminal one. The first resolution is a formal bill of
indictment to be preferred against him ; the second, a
sentence to be pronounced upon him if he shall be found
guilty. There is an advantage in this. Mr. Ward cannot
complain that he will be encumbered in his defence by
having to answer the vague charges of those who might
cavil at the spirit of his book as heretical, and contrary to
the Articles of the Church of England, without specifying

the passages objected to. The charges against him com&
in a definite shape, and if he has an answer to them, he
can make it. At the same time, he cannot be allowed to
travel out of the case, and cite passages to prove that other
parts of his work do not express sentiments hostile to the
Church of England. The attention of Members of Con
vocation will be confined strictly to the passages set out
in the resolution, and they must endeavour, if they are to
act as judges, to ascertain whether the publication of these
passages constitutes an offence against the laws of the
Church or of the University.
But before entering upon that question, it is the duty
of every Member of Convocation who is to sit in judgment
on Mr. Ward, to inquire into the power and authority of
the tribunal of which he is to constitute a part. Should he
be of opinion that this tribunal has no jurisdiction to en
tertain the present proceeding, there is an end of the whole
matter. But should it appear that the House of Convocation has
jurisdiction, an important question will arise, whether its
powers can be exercised with justice and safety.
Sir John Dodson and Mr. Bethell have given their
opinions upon the first point in the following terms : —
" We are of opinion that the House of Convocation has not
the power of depriving Mr. Ward of his degrees, in the man
ner or on the ground proposed.
" A degree is a certain dignity or title of honour which the
University derives its right to confer by grant from the

Crown, and to the rank or status thus conferred the law has
annexed many privileges, both ecclesiastical and civil. The
University can have no power of taking away this dignity,
and the franchises with which it is accompanied, unless such
power be derived from the same source, — namely, royal grant,
or has been created by some Statute, or bye-law, which has
received the sanction of the Crown or been confirmed by Act
of Parliament.
" But, upon an examination of the Statutes of the Uni
versity, we do not find any Statute which confers upon or
recognises in the House of Convocation a jurisdiction or
authority to deprive any one of its members of its University
franchise, except only in the subordinate office of publicly
executing the antecedent degree of a Court of competent
jurisdiction ; and we are therefore of opinion that the pro
posed Act of Degradation will, if it passes, be illegal ; and
inasmuch as by its consequences it would deprive Mr. Ward
of certain legal rights, we think it may be properly made
the subject of application to the Court of Queen's Bench ;
and that such Court would by Mandamus compel the Uni
versity to restore Mr. Ward to his degrees, and to the status
and privileges which he now holds in respect of them.
" We desire to observe that we give no opinion upon the
question, whether Mr. Ward, by the publication of the doc
trines contained in his book, has or has not committed an
offence against Ecclesiastical law, which might be made the
subject of a proper judicial proceeding before a competent
tribunal, but simply that, in our view of the case, the House
of Convocation is not such a tribunal, and that the notion
that it can degrade by virtue of some general or legislative
power appears to us erroneous.
" Should the resolution pass, Mr. Ward may have an
other remedy, — namely, an appeal to the Crown as Visitor
of the University ; and this may be resorted to even if the

9
Court of Queen's Bench should, on an application for a
Mandamus, decline to interfere."
Should the offence charged amount to an offence against
the Ecclesiastical law, it seems that the House of Con
vocation cannot degrade Mr. Ward, except after con
viction,* unless in the exercise of some power inherent
in itself as a Court of criminal jurisdiction.
The power of degrading is recognised as existing in
the Chancellor by the Statute, Tit. xvii. § 1. De officio
potestate et auctoritate Cancellarii. As this Statute is
not published amongst the " Excerpta e corpore Statu-
torum," which every Member of the University receives
at his matriculation, I have inserted that part of it which
refers to this power. " Item contra Statuta hujus Uni-
versitatis delinquentes poena corporali, mulcta pecuniaria,
incarceratione, degradatione, suspensione graduum, dis-
communicatione, proscriptione, bannitione, sive expulsione
ab academia, censuris ecclesiasticis, aut quocunque alio
modo rationabili (prout qualitas delicti exiget, et quatenus
Statutis et privilegiis Universitatis permissum est) re
spective punire. Delicta, contra qua? speciali nullo
Statuto cautum est, vel quibus nulla per Statuta irrogatur
poena, pro arbitrio (sive in judicio sive extra) punire.
The jurisdiction and powers recognised by this Statute
may be exercised by the Vice-Chancellor's Court.t But
it does not follow that because the Vice-Chancellor's
* Rex v. Richardson, 1 Burrow, 539.
+ The King against the Chancellor, Masters, and Scholars of the
University of Cambridge, 6 T. R. 89.

10
Court has jurisdiction there should not be another Court
in the University capable of hearing and determining
similar causes. It is stated * in the argument in the
case last cited, that both the Universities had ab incipio
Ecclesiastical jurisdiction, as appears by Dr. Bentley's case.
They had also the same officers as Ecclesiastical Courts,
the Chancellor presiding. The Vice-Chancellor's Court
had also existed immemorially, and taken cognizance of all
offences against discipline as well as other matters. In
Dr. Bentley's case.t which came on upon the return of a
Mandamus to restore Dr. Bentley, who had been degraded
by a sentence of the House of Convocation, the return
stated that, time out of mind had been a custom for the
Chancellor or Vice-Chancellor to summon a Congregation
consisting of such and such particular members specified
in the return, who have used to examine and determine
all matters relating to the University, and to take away
degrees for reasonable cause.
King Henry the Eighth, by his letters patent, granted
to the Chancellor, his commissary, or his deputy and their
successors, the steward, under-steward, and other judges,
should hear and determine all trespasses and other offences
whatsoever, and all pleas and other causes and matters
whatsoever, (assizes and pleas of freehold only excepted,)
according to their Statutes and customs. These letters
patent were confirmed by an Act of Parliament passed in
the 13th year of Queen Elizabeth, cap. 29.
* 6 T. R. 96. t Burn's Ecclesiastical Law, 413.

11
If, therefore, there be in the University of Oxford an
ancient custom similar to that claimed by the University
of Cambridge in Dr. Bentley's case, for the House of
Convocation, presided over by the Chancellor or his
deputy, to hear and determine causes, and to punish by
deprivation of academical degrees ; the judgment of the
Court in condemning Mr. Ward will be unimpeachable.*
It is not material that this power has not been exercised
of late years, nor is it necessary to give the Court autho
rity that it should be expressly recognised by the Statutes.
If such a Court exists, having such a jurisdiction, its acts
are the acts of the Chancellor, and the Statute which re
cognises his powers recognises the powers of his Court.
A correspondent of the Times suggests that such a Court
as the House of Convocation had been unheard of
since the days of the Athenian Ecclesia. But if he will
refer to the second volume of Burn's Ecclesiastical Law,
page 305, he will find it stated upon the authority of
Lord Hale, Mr. Hawkins, and Dr. Gibson, that Convo
cations of the Clergy and Provincial Synods had formerly
an undoubted right to summon heretics before them, and
might and frequently did here in England proceed to sen
tence them, though it is questioned whether they have the

* No allusion appears to have been made to the existence of any such
custom in the case submitted for the opinion of Counsel. If there be
any record of proceedings in such court remaining in the Archives of the
University, it would be most desirable that it should be made public, or,
at least, accessible to the Members of Convocation, before the meeting on
the 13th instant.

12
power at the present day. I think the very constitution
of the Court affords presumptive evidence in favour of its
authority as an ancient customary court. But supposing
that the House of Convocation possessed the power which
the Vice-Chancellor and Heads of Houses would claim for
it, is it a power which can be exercised consistently with
prudence and justice ?
The charge against Mr. Ward, that of holding and pub
lishing doctrines contrary to the Articles of the Church of
England, (for, I will observe, that unless the charge
amounts to this, it does not include an offence known
to the law) is of a peculiarly invidious nature. For
our own sakes, for the sake of our posterity, we should
fence in the proceedings on such a charge as this with
every possible precaution, in order to secure ourselves
from the possibility of the spirit of party influencing the
minds of judges on a subject on which every one feels
strongly. What will be the result if the proposed sen
tence be passed upon Mr'. Ward at the approaching meet
ing of Convocation ? A man charged with an offence of
this nature will be convicted and sentenced to the severest
penalty in the power of the University to inflict, by a
Court, before which he cannot possibly obtain a fair hear
ing, and in which, his accusers and his advocates, his
enemies and his friends, will sit side by side as his judges.
By such a proceeding, an arena is opened for the combats
of hostile factions ; weapons will be left within their
reach, which they may one day use with tremendous effect

13
against one another. It is not enough to urge that
Mr. Ward's guilt is evident, and that no mischief can re
sult in this particular case. The Members of Convoca
tion are bound to watch over the purity of their Court,
and not to sanction the introduction of usages and prac
tices, which, though innocent at the time of their adoption,
may hereafter serve as precedents for the most dangerous
and monstrous injustice.
Secondly, vast numbers of persons of whom this tribu
nal is to be composed, are men wholly unaccustomed to
the exercise of judicial functions, and wholly incapable of
weighing with the calm, earnest, and dispassionate spirit
which should actuate a judge, every point making in
favour of the accused. On the meeting of Convocation
there will be present men, — and hundreds of them strongly
opposed to the views of Mr. Ward's party, — most strongly
condemning the loose morality, and want of good faith,
which characterizes the passages selected by the Hebdo
madal Board as the foundation of the charge against him,
who will scarcely be prepared to listen with perfect impar
tiality to a subtle argument as to whether or not the pub
lication of these passages amounts to an offence cognizable
by the law.
Lastly, even if it appear that by the ancient customs of
the University, Convocation has jurisdiction to try this
indictment, if it has the power of administering oaths and
compelling the attendance of witnesses, and is provided
with the other legal machinery necessary to carry on the

14
proceedings of a court of justice, it is worth consideration,
whether following the example of the Court of Queen's
Bench in issuing Writs of Mandamus, it ought not to de
cline to exercise its authority on the ground that there are
other tribunals before whom the offence, if any, is pro
perly cognizable.
None of the objections which apply so forcibly to trials
before the House of Convocation, have any application to
proceedings taken before ,the Vice-Chancellor's Court. I
would observe too, that if any offence at all has been com
mitted by Mr. Ward, he may be convicted in the Ecclesi
astical Courts of having maintained doctrines contrary or
repugnant to the Articles of the Church of England, and
may be deprived of his ecclesiastical promotions, by virtue
of Statute IS, Eliz. cap. 12, § 2.
Since the above observations went to press, the following
opinion has been published : —
1. " We are of opinion that the University has the power to
degrade, and that that power is by no means limited or con
fined to cases of prior conviction of an offence by a Court
of competent jurisdiction, nor to those particular cases enu
merated in the Statutes to which degradation is specifically
annexed.
2. " We are of opinion that the Extracts set forth in the No
tice contain sufficient cause to justify the House of Convo
cation, as representing the University, in taking cognizance
of them, and coming to a decision on the subject with a View
to the degradation of Mr. Ward ; but whether, in the result
the charge preferred against him shall appear sufficient to

15
justify the House in degrading him, is a conclusion which
must rest entirely with, and be formed by, the Members of
Convocation upon consideration of the whole matter.
3. " Provided Convocation shall upon consideration come to
the conclusion that Mr. Ward ought to be degraded, we
are aware of no ground for impeaching, or questioning the
validity of the degradation.
4. " If the determination of Convocation should be to de
grade Mr. Ward, and he should apply to the Court of
Queen's Bench for a Writ of Mandamus to restore him, we
are of opinion, that it will be an answer to it, that Her
Majesty is Visitor of the University, and that the subject
lies exclusively within the province of Her Majesty as
Visitor, and that any complaint against the proceedings of
.Convocation must be made to Her Majesty in that capacity,
and cannot be withdrawn from her jurisdiction.
FRED. THESIGER,
CHARLES WETHERELL,
J. ADDAMS,
JOHN COWLING."
I will only further observe, that should the charge not
include any offence against the Ecclesiastical law, but
merely one against the oath and duty of Mr. Ward as a
Member of a Corporation, perhaps the University has the
power of disfranchising and degrading him. But I do
not think this clear. Such a power exists ex necessitate
rei, in those cases alone where no other court can take
cognizance of offences which involve a forfeiture of
corporate rights.* As this power is incident to the
University as a Corporation, and does not depend upon
* 1 Borrow, 536.

16
any Statute, special custom, or prescription, the question
arises whether a motion can take place otherwise than at
a corporate assembly or meeting, which all the corporators
must be summoned to attend. By Statute 13 Eliz. 29,
the University is incorporated by the name of the Chan
cellor, Masters, and Scholars of the University of Oxford.
The House of Convocation is a very different body, as will
appear on reference to Stat. Tit. X. Sect. 1, § 1. It is a
Court and not a Corporation,* and would be incapable,
unless empowered by Statute or special bye-law, of exer
cising rights vested in the Corporation of the University
at large. But their power to act for the University in
amoving members is recognised by Statute, and therefore
whatever power the University, as a Corporation, has in
in this matter, may, I think, be exercised by the House of
Convocation. * Carthew, 171.

THE END.

YALE UNIVERSITY LIBRARY