Front Page Titles (by Subject) CANON Mac COLL'S NEW CONVOCATION 1 - The Collected Papers of Frederic William Maitland, vol. 3
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CANON Mac COLL’S NEW CONVOCATION 1 - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 3 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 3.
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CANON MacCOLL’S NEW CONVOCATION1
With “the crisis in the Church” and “the Lambeth decision” this paper will have nothing to do. In the one I take no interest; the other I have not read. But I have been constrained of late to make some acquaintance with the first years of Elizabeth’s reign, and whatever is written about that time by Mr Malcolm MacColl seems to me a serious matter; at all events, when it consists of the suggestion of hitherto unknown or disregarded facts. Mr MacColl has the public ear, and what he says, even by way of hypothesis, will soon be believed by the many, and will pass into the manuals. Therefore, I will venture to make public an appeal to him for the reconsideration of a doctrine that he has promulgated2 , touching the events of the year 1559, and more particularly touching a newly discovered convocation of the clergy.
He will agree with me that the Roman Church has not permanently profited by the consecration that was perpetrated at the sign of the Nag’s Head. He will agree with me that the Anglican Church will not permanently profit by a convocation that is holden at the sign of the Cock and Bull. He will agree with me that the year 1559 is so fruitful of documents of all sorts and kinds, that it is scarcely a time at which guess-work should assemble bishops and clergy in synods, of which no direct evidence has descended to us. We think of Parker’s collections and Cecil’s memoranda, of the Zurich letters, of Feria, Quadra, and Noailles, of the Roman attacks and Anglican apologies. We think how easy it would be to prove, for example, that in 1559 a colloquy between champions of two creeds took place in Westminster Abbey during the Easter recess of Parliament. We think of these things, and we say that at such a time important events are hardly to be multiplied except at the call of contemporary testimony. Let us leave room for the stroke of genius. Every now and again some master of the historic art may be able to demonstrate that a parliament or a synod must have been assembled, although he can show us no text that describes its doings, or none that is not too late, anonymous and of unknown origin. Such exploits are for those who by years of toil have taught themselves to fly. Most of us have to walk on foot.
Now Sir William Harcourt, so I understand, said that “the Crown and Parliament enacted the Prayer Book in the teeth of the bishops and clergy.” I am not concerned to defend the phrase, and it is not that which I should have chosen; but if we are speaking of what happened in the first year of Elizabeth’s reign, then we must either admit that Sir William’s saying does not fly very wide of the mark, or else we must produce some facts that have been neglected. We supposed that no bishop voted in favour of the Act of Uniformity. We supposed that every bishop who was present in the House of Lords voted against it. We supposed that the lower house of convocation, at least in the southern province, uttered its mind in articles which breathe out Roman Catholicism of an uncompromising and militant sort. This being so, we had perhaps no warrant for talking of the clergy’s teeth, but we seemed to have ample warrant for denying that the changes in worship that were effected in 1559 were authorised by any constitutional organ of the English Church. So far as I am aware, those historians and controversialists whose names Mr MacColl would more especially revere have been content to leave the matter thus, and to say (as well they might) that the Church accepted or received a book that it did not enact or propound.
In passing, let us notice Mr MacColl’s treatment of the old evidence, for I must confess that I do not like it:—
“Of the twenty-six sees then existing, ten were vacant through death, leaving sixteen bishops as peers of Parliament. Nine of those voted against the third reading of the Act of Uniformity. One was absent through illness, and seven for no assignable reason. The Bill was thus opposed by just one more than a third of the whole bench1 .”
Now the Canon’s memory seems to me as faulty as the equation 9 - 1 - 7 = 16. One bishop, he says, was absent through illness, and seven for no assignable reason. Is not imprisonment an assignable reason? Winchester and Lincoln were in goal because of the part they played in the Colloquy with the Protestants. St Asaph had received no writ, and had mildly complained that he ought to have been summoned. There is good authority for saying that the Bill was carried by a majority of three1 . So if Goldwell had been summoned, and White and Watson had been liberated, the Bill might have been lost, and, for anything that I know to the contrary, Mr MacColl and I might be believing in transubstantiation at this day. Then Peterborough had given a proxy to York, London, and Lichfield; Durham to York; Bath to York, London, and Exeter; St David’s to York, London, and Peterborough. If these proxies were used, assuredly they were used on the Conservative side. Indeed the solidarity of the English episcopate at this critical moment seems to me as wonderful as it is honourable. That is not the point. What is to the point is, that Mr MacColl’s statement of the case can only be saved from a charge of unscrupulous partizanship by a confession that highly important facts were forgotten.
Then I see an argument that bewilders me. Some of the Marian bishops were, we are told, intruders:—
“Now the first step which Elizabeth took in ecclesiastical legislation was to repeal the repealing Acts of Mary, thus reviving the state of things which existed when Mary came to the throne. The effect of this astute policy was to disqualify the Marian bishops to vote either in Parliament or Convocation, and they were thus disqualified when the Act of Uniformity came before them, and had, in fact, subjected themselves to heavy penalties by voting at all.... More than half were disqualified by canonical and statutory law.... [And so] their votes [against that Act] were—quite legally and canonically—regarded as null and void.”
The author of these sentences must forgive a pedagogue for saying that, had they been written in the hurry of an examination, they would have been regarded as signs of ingenuity—but of indolence also. Coming, as I hope they come, from a comfortable study, I can only wonder at them. As to the disqualification of Marian “intruders,” I will say nothing now, though Mr MacColl calls Erastianism what I should have called the highest of high Catholicism. But to his argument, the short answer is, that Elizabeth did not “repeal the repealing Acts of Mary” until after the Act of Uniformity had passed the House of Lords. That House had not done with the Act of Supremacy when it finished its work on the Act of Uniformity. The two Bills received the Royal assent on the same day. But further, the Act of Supremacy expressly said that the Marian Acts were to be repealed “from the last day of this session of Parliament,” thus carefully excluding the doctrine of retrospective operation. Furthermore, there was a creditable clause declaring that no one was to suffer under the revived statutes of Henry and Edward for anything done before the end of thirty days next after the end of the session. Why, even the Court of Rome was given sixty days wherein to dispose of some pending appeals! That marvelous clause I have long regarded as the most splendid instance of our English reverence for possession. It is colossal.
Where then is the astuteness? Well, perhaps there was astuteness; but it was that of the statesman, not that of the pettifogger. There were hot-headed protestants advising Elizabeth to act much as Mr MacColl thinks that she acted, and to ignore the changes made in Mary’s day. Wisely she at once called a Parliament. Wisely she sent writs to the Marian bishops. Wisely she treated the Roman Catholic religion as a religion by law established. Wisely (to mention the small but crowning instance), she allowed Richard Chetwood and Ann his wife to pursue their appeal to the Bishop of Rome. Wisely she cast her burden on Parliament; and she had her reward. I do not mean that there was no astuteness of a lower kind. Bishop Goldwell, it might be said, deserved no writ, as he was in a state of transition between St Asaph and Oxford. Two more voters and two orators were excluded when Watson and White luckily misconducted themselves, and were laid by the heels. But of any attempt to treat as nullities the votes given by the Marian intruders, there is no sign whatever.
Yes, says Mr MacColl, there is; and now, having shown us his surety of foot, he prepares us for his flight through the void. In letters patent, dated in 1560, Elizabeth spoke of the Act of Uniformity as one of the statutes that were passed in her first year “by the consent of the three estates of our realm.” Therefore, it is urged, the votes of the Marians must have been ignored, and we must look about us for some other clergymen who will serve as warrantors for the Queen’s words about the three estates.
Will the Canon suffer me to strengthen his argument, or does he dread the gifts of the infidels? The Act of Supremacy begins with a prayer to the Queen that she will suppress the “foreign usurped power,” deliver the nation from “bondage,” and repeal the Marian statutes. Who, let us ask, put up this prayer? We shall here find no brief talk of “three estates,” but a far more explicit statement; for the petitioners are “the Lords Spiritual and Temporal, and the Commons in this your present Parliament assembled.” But this is not all. Canon MacColl can easily find a highly official statement made in the year 1559, to the effect that the two famous and thirty-eight other Acts were passed with the assent of all (yes, all) the Lords Spiritual and Temporal1 . Clearly, therefore, not only were the votes of the Marian bishops and the Papistical noblemen ignored, but at least two other spiritual lords (shall we say Barlow and Scory?) must have been present in Parliament.
Or else (for there is an alternative) it was already law that two estates of the realm vote as one House, and that the will of the majority of that House is the will of all the Lords Spiritual and Temporal in Parliament assembled. Since then many and many an Act bears on its face the consent of the Lords Spiritual, and yet no bishop voted for it. Are not their votes and defaults registered in a Black Book kept by the Radicals? But, says Mr MacColl, “the spiritual peers constitute the first of the three estates of the Realm, and whatever lawyers may think now, it is unquestionable that, in the time of Elizabeth and previously, an Act of Parliament would have been considered of doubtful authority, if not altogether invalid, [if it were] passed in a Parliament where the spiritual state was ignored1 .” To this let us answer, first, that the bishops are not “ignored” whenever a Bill is carried against their votes; secondly, that the judges of Henry VIII’s day, holding (rightly or wrongly) that the bishops derived their seats in Parliament from their baronies, declared that a Parliament would be a good Parliament though no bishops had been summoned to it2 ; and, thirdly, that Sir Thomas Smith and Sir Edward Coke knew something about the English law of Elizabeth’s day, and clearly teach us that “the Upper House” gives or withholds its assent as one and only one of the three legislating units: to wit, King, Lords, and Commons. Coke treasured, as precedents, two statutes of Richard II’s reign. The two archbishops, for the whole clergy of their provinces, made their solemn protestations in open Parliament, that they in no wise meant or would assent to any statute or law in restraint of the Pope’s authority; “and yet,” says Coke, “both Bills passed by the King, Lords, and Commons.” “Whatever lawyers may think now,” that is what my Lord Coke thought3 .
I am always unwilling to read lectures on Elizabethan law to Sir Edward Coke, but still he wrote after the great precedent of 1559 had settled the question for ever; and just at this point I am inclined to make a concession to Canon MacColl. In 1559 our rule, that the bishops may all be in the minority and the Act never the worse, was certainly in the making, but I doubt it was already past discussion. The Spanish Ambassador, on the 18th of June, says that “the doctors” (he means the lawyers) are doubting whether the bishops can be deprived, since the Act of Supremacy was passed in contradiction to the whole ecclesiastical estate1 . He adds that the oath has not been tendered to the judges; and I fear, that some of those judges (Browne and Rastell) were little better than papists. It is generally known, and Mr Pike has noted2 , that, just at the critical time, a mysterious silence falls upon the official journal of the House of Lords. I do not wish to be uncharitable to Cecil and Bacon, but cannot help remarking that had Bonner, or any of his fellows, wished to give proof that the Act of Supremacy was carried against the voices of the bishops, there would have been no official document ready to hand. And Bonner, with the expert Plowden to guide him, did wish to prove that the Act was invalid. Mr MacColl speaks as though no contradiction was offered to Elizabeth’s statement about the consent of the three estates. Bonner flatly contradicted it. When indicted, he threatened to argue before a jury that the Act of Supremacy had never received the assent of the Lords Spiritual and Temporal, and of the Commons3 . He was never put upon his trial, but was left untried in gaol. I have seen the original record on the rolls of the Queen’s Bench. Now, I do not say, and do not think, that he had a good case, and he would have had the utmost difficulty in giving a legally acceptable proof of the dissent of the bishops. My humble guess would be that an impartial court (had impartiality been possible) would have decided in favour of our modern doctrine of two estates in one House; and the most that we can say against those who spoke of the Acts of Uniformity and Supremacy as bearing the consent of the Lords Spiritual is, that they gave expression to a constitutional theory which might possibly have been overruled in a court manned by zealous Catholics. Therefore, on this occasion, I do not hear Elizabeth telling a lie. At the very worst, she begs a question—a question that must be begged, if her Anglican settlement is to be maintained.
Mr MacColl noticing the official statement about the three estates, and not noticing the official statements about the Lords Spiritual in Parliament assembled, proceeds to say that “something evidently took place which has escaped the scrutiny of our historians,” and he then argues that this something was a second Convocation. But where, we must ask, did he learn that the clergy in Convocation is one of the three estates of the realm? Where did he learn that every Act to which those three estates have assented was laid before a Convocation? Where, above all, did he learn that the assent of Convocation is the assent of the Lords Spiritual in Parliament assembled? Not by a Convocation, real or fictitious, can Elizabeth’s accuracy be saved, if it needs saving. Not by a Convocation, real or fictitious, can we dispel the doubts reported by Bishop Quadra. And, by the way, I should like to ask some Spanish scholar whether Sir William Harcourt’s “in the teeth of the bishops and clergy” is a very bad translation of this Catholic prelate’s “en contradicion de todo el estado eclesiastico.”
Having persuaded himself that “something evidently took place which has escaped the scrutiny of our historians,” Mr MacColl finds the requisite something in a document “discovered” by Mr Wayland Joyce in the State Paper Office1 , and of that document he prints a portion. I will print the whole. It so happens that when I first saw it at the Record Office I did not know that any part of it had been published, nor had I read Mr MacColl’s book or article. For a moment I enjoyed the little thrill that comes to us when we fancy that we have unearthed a treasure, and then I said “Rubbish!” and turned the page. Was I wrong?
The document begins thus:—
“Ther remained Bishops for sometyme that were Bishops in Queen Maryes tyme.
“Ther were Bishops in the Parlament holden primo Eliz. and in the Convocation holden at the same tyme.
The above is not printed by Mr MacColl. Straightway upon this there follows what he does print.
“The booke of Common prayer, published primo Eliz., was first resolved upon and established in the Church in the tyme of K. Ed. 6. It was re-examined with some small alterations by the Convocation consistynge of the said [sic]1 Bishops and the rest of the Clergy in primo Eliz., which beinge done by the Convocation and Published under the great seal of Englande, ther was an acte of parlament for the same booke which is ordinarily printed in the begininge of the booke; not that a booke was ever subiected to the censure of the parlament, but being aggreed upon and published as afforesaid, a law was made by the parlament for the inflictinge of penalty upon all such as should refuse to use and observe the same; further autority then to [sic] is not in the parlament, neyther hath bin in former tymes yealded to the parlament in thinges of that nature but the judgment and determination thereof hath ever bin in the Church, thereto autorised by the kinge, which is that which is yealded to H. 8 in the statute of 25 his raygne.”
What shall we say of this stuff? Canon MacColl, knowing only the latter half of it, set himself to guess that a second and unpapistical Convocation was summoned to sanction the Prayer Book, the Marian bishops having effaced themselves by opposition. Canon MacColl laboured under the misfortune of knowing something about the votes that these Marians gave in Parliament, and something about a Convocation that upheld the power of the Pope. The writer of our document was not so well informed. Indeed, his mention of “Chenye” (to choose but one blunder) shows that he was recklessly ignorant. Now we must take his story or we must leave it; we cannot pick and choose just what will suit our opinions or our party. His Convocation of the year 1559 is held when Parliament is held. In it sit Bonner, White, Pate, Bayne, Watson, and Turberville; and this is the Convocation that approves the Prayer Book. Whether good Father Coverdale was sitting cheek by jowl with bloody Bonner; whether the Rev. Mr Barlow, who, as late as the 1st of March, was out in Germany with Melanchthon, hurried home in time to meet those Holy Confessors White and Watson ere they went to the Tower; whether Cheyney was made bishop for this occasion only; whether Thirlby was still in the Netherlands; all this is not so plain as it might be, and the history of the northern Province is wrapped in its accustomed darkness. But one thing seems perfectly clear, namely, that this writer knows nothing of two Convocations, the earlier of which was all for papal supremacy, while the later enacted the Prayer Book. In his eyes, the Convocation which gives us the Prayer Book is no such select body of divines as that which Mr MacColl has conjured up for us—an assembly which, to my mind, looks little better than a protestant caucus—but the genuine Convocation of the southern Province, in which, for want of an archbishop, Edmund Barker presides.
Is what stands before us a lie? Its audacity seems to crave a more merciful verdict, and I do not know that its writer intended it for publication. One (and probably the later) of the two copies that exist was said by an endorser to be in the hand-writing of Sir Thomas Wilson, who was Keeper of the State Papers under James I1 . From its presence among the State Papers no inference can be drawn; odds and ends of many sorts and kinds are there. Before we acquit its composer of fraud, we have to remember, first, that the tale of the Nag’s Head was silly and impudent, and yet generally believed by Roman Catholics. Secondly, that Anglicans, who were twitted about their “parliamentary” church by Romanists, and who resented the Puritanic interference of the House of Commons, were under a temptation to disseminate some such story as this; and thirdly, that the risk of immediate detection was not very serious, since few documents were in print. However, as at present advised, I incline to a lenient judgment. Perhaps we may see an idle romance that was meant for the fire. Perhaps an attempt to write history a priori, and an attempt that did not satisfy its maker. Perhaps an inchoate lie that never got beyond a first draft. These are only guesses; but, in all seriousness, I venture to counsel Canon MacColl and other honest controversialists to beware of this paper.
The argument from smoke to fire is a favourite with some minds, and, needless to say, it is sometimes legitimate; but the Roman Catholic champions of the present day have good cause to regret that their predecessors would only surrender bit by bit the story of the Nag’s Head, instead of branding it as a good round lie. Even so, Anglicans will run a needless danger if they argue that the paper at the Record Office, though not exactly truthful, must enshrine some core of truth. After all—or perhaps before all—men do endeavour to write history out of their own heads. Here, for example, is Mr MacColl sending into a world in which Jesuits and Erastians live an argument which supposes that the Marian bishops sat and voted in the House of Lords after the Marian Acts had been repealed. We do not say that “there must be some truth” in this. We say that the Canon’s arm-chair was comfortable, and that the statute book and the journals of parliament stood just beyond his reach. And if we know ourselves we do not scream at him; so to do would be both unkind and imprudent. We are sinners, all of us. The guess-working spirit is so willing; the verifying flesh is often weary.
It will hardly have escaped the scrutiny of Mr MacColl that the “something” that “escaped the scrutiny of our historians” seems also to have escaped the memory of those who must once have known all about it, and were deeply concerned to tell what they knew. Canon MacColl and Sir William Harcourt, modern though they may be, fill the place of controversialists who long ago went to their rest. Profoundly convinced though I am of Sir William’s ability and eminence, I am not sure that he is a more formidable foe than was Dr Nicholas Sanders, especially now that a crisis in the Church is far more likely to end in smoke (“good, strong, thick, stupifying incense smoke”) than in the thrust of a dagger aimed at our Queen. Now Sanders’ bitter pen touched the point that we have been examining. By three votes, he said, and three only, you subverted the faith of your forefathers, and the bishops, to a man, were against you. He could not be left unanswered. Inspired by Parker and Cecil, Bartholomew Clerke took the field. He wrote, what seems to me, an effective pamphlet: but Sanders’ facts were not to be denied. As to the victory by three votes, Clerke says (and with some truth) that immediately after the end of Mary’s reign, this was a marvellously creditable result. As to the bishops (he adds), well, perhaps they did not resist to a man1 , but they were a seditious and abusive, yet timid, crew, and their retreat from the Westminster Colloquy made them contemptible. Now this will not seem to divine or lawyer a very appropriate reply. It was, however, the best that Parker and Cecil could contrive. Why was not Canon MacColl there to crush the malignant papist by proof that the votes of the Marian bishops were “legally and canonically” null, and, by proof, that the spiritual estate of England was its own reformer? But poor Clerke lived too soon. The benighted man thought that the two parties to the Westminster Colloquy were rightly called “Papists” and “Protestants”; and we have changed all that. He lived before the Oxford movement. Indeed, he lived—but let us forget it—when a Cambridge movement was in full flood.
The name of one bishop, and one only, has Canon MacColl risked, as that of a possible occupant of a chair in his astutely selected (I had almost said “jerry-mandered”) Convocation. It is the name of Tunstall. The writer of the paper that lies in Chancery Lane did not risk this name, probably because he knew that a bishop of Durham would not be at home in a synod of the southern Province; and were I in Mr MacColl’s place I would not bring Tunstall away from his statesmanly employment on the Scottish border until after the Act of Uniformity is secured. Nor would I make myself a sponsor for his adhesion to the Elizabethan form of religion. Henricianism he might have accepted. But we have it from one who was on the spot that, after the session was over, the moribund old man journeyed to London in order to persuade the Queen to abandon the heresies that had been adopted, and to pay respect to her father’s will, even if she could not accept the Church in its entirety. And laughter, we are told, was his reward1 . Now Scory we may hand over to Canon MacColl. Barlow he may have, and Coverdale, if he can bring the one from Russia, the other from Geneva, in time for a meeting, the date of which is not yet fixed. Tres faciunt collegium. Straining a point, we might admit a suffragan, or even Bale. Whether an Upper House of Convocation that is thus concocted would supply the Prayer Book with any valuable amount of synodical authority, is a question that I gladly leave to Mr MacColl. Perhaps a wholly new light might fall on “the ornaments rubric” if we could be quite sure that it came from the pen of Miles Coverdale.
As a subsidiary argument, the Canon has argued that it is not like Elizabeth to ignore the clergy and to allow laymen to settle ecclesiastical affairs. I am not prepared to discuss this matter at any length, but still may suggest that he and others should distinguish between the Queen who has obtained her Act of Uniformity and the young woman who could hardly induce a bishop to anoint her. To me it seems that the Elizabeth of those first few months was wholly unable to dictate to the lords and the beneficed clergy, and was bidding high for the support of the protestants. This is the Elizabeth who made Europe ring by leaving her chapel on Christmas day rather than witness the elevation of the host. When the legal settlement had been made, and the protestants were satisfied, then came the time for an appeal to the moderate, neutral, wavering nucleus of the nation, for hints of crypto-Catholicism, and even for flirtations with the unmarrying bishop of Rome. As to the Prayer Book and the Act of Uniformity, if Canon MacColl will look at the latter—I mean no page in a printed volume, but a sheet of parchment lying at Westminster—he will, so I think, see reason to suspect that the House of Lords amended the Bill and, in effect, erased from the litany that rude prayer for deliverance from the detestable enormities of the Pope. Be that as it may, I would respectfully submit to him that evolving history from half a document when you know that the whole is close at hand, and that you and others have a right to see it, is to expose yourself, your cause, your party, to needless jeopardy. The party to which Canon MacColl belongs has been learned.
Fortnightly Review, Dec., 1899.
Ib., Oct., 1899.
Fortnightly Review, Oct., 1899, p. 646.
10th May, 1559: Feria to Philip: Kervyn de Lettenhove, Relations Politiques, 1. 519.
Heading of the Acts of 1559.
Reformation Settlement, p. 349.
Keilwey’s Reports, 184 b.
Second Institute, 587.
Kervyn de Lettenhove, Relations Politiques, I. 540.
In the important Preface to his Constitutional History of the House of Lords.
Strype, Annals, vol. 1. pt. 2, p. 4.
Joyce, The Civil Power in its Relations to the Church, 1869. pp. 135-7.
Mr Joyce and Mr MacColl give same not said.
Public Record Office, State Pap. Eliz. Dom. vol. VII. Nos. 46 and 47. The spelling of 47, which is attributed to Wilson, is nearer to modern usage than is that of 46. Canon MacColl talks of Sir Thomas Weston; but, though the name is ill-written, there can be no doubt that Wilson is meant.
Fidelis Servi Responsio, ed. 1573, sig. L. iiii: “Resistibant itaque fortasse (ut ais) omnes ad unum episcopi.”
Kervyn de Lettenhove, Relations Politiques, I. 595: Quadra to Philip: 13th Aug., 1559. When this letter is read with Tunstall’s, his position seems clear: but “they laughed at him.”