to the Reformation, the indictment having been intentionally framed by the law officers of the Crown upon the older statute of Richard II. rather than upon the more recent one of Elizabeth. With this precedent by way of warning, it would be an act of questionable discretion for Cardinal Wiseman to proceed to put into execution the canon law within the realm of England, and to govern eight English counties and the islands adjacent as Ordinary thereof. Lalor contended, in his defence, that he had exercised his office in foro conscientiæ, not in foro judicii; but his plea was overruled by the Chief Justice on the ground that he exercised jurisdiction, as manifested by the nature of his acts, in foro judicii. It is difficult to conceive how a foreign law, such as the canon law of Rome, can be put into execution in the present day with any other legal result than that which attended its exercise in the fourth year of the reign of King James I. (anno 1607.)

The legal inference from this very important judgment seems to be that the statutes of the realm which were enacted with the object of restraining the encroachments of the Papal power upon the sovereignty of the English Crown before the Reformation, were held to be still applicable to restrain any analogous attempts of the same power subsequently to the

* Dr. Richard Smith, the second Vicar-Apostolic in England, on his arrival in London, assumed the title of Ordinary of England and Scotland, which led to a proclamation on the part of the king's government, on 11th December 1628, for his apprehension. This was followed by a second proclamation, on 24th March 1629, with an offer of one hundred pounds reward to any person who should discover his place of concealment. He thereupon fled into France and contrived to exercise his functions in England by his Grand Vicar. Butler's Historical Memoirs of the English Catholics, vol. ii. p. 305. Cf. Appendixp. xlviii.

Reformation. If this should still be held to be sound law, then neither the Toleration Act of George III. nor the Emancipation Act* of George IV. have conceded to the See of Rome any authority, which it was restricted from exercising before the Reformation. The importance of this position of law will be more apparent in the following chapter.

* Cardinal Wiseman, in discussing the provisions of the Act of Emancipation in his appeal, p. 16., makes a singular statement as to an important matter of fact. Having concluded the inference of law to be this, that the titles of the new Bishops are not against any law, so long as they are not the actual titles held by the Anglican Hierarchy, his Eminence proceeds to say, that, "all these conditions having been exactly observed in the late erection of the Catholic Hierarchy, this is perfectly legal, perfectly lawful, and unassailable by our present law." The authority of Dr. Wiseman himself can hardly avail in this matter against the authority of the Press, of the Congregation of the Propaganda, which declares the title of St. David's to be appropriated to one of the new Bishops.

57

CHAP. III.

WE may now proceed to consider, how far the act of the Pope, in erecting episcopal Sees within the realm. of England without the consent of the sovereign of that realm, is a departure from established law, and violates the sovereignty of the Crown of England. And here it may be convenient at the outset to remove an objection which has been raised by Mr. Bowyer, and adopted by Dr. Wiseman, that the Crown of England has barred its right of remonstrance and its claim to redress against the See of Rome, by having itself, in two instances, abandoned the received rules of European law in pari materia, and so far, not coming into court with clean hands, must submit to be nonsuited. Accordingly it is said by Dr. Wiseman, that the Crown of England has erected "a Bishopric of Jerusalem, assigning to it a Diocese, in which the three great Patriarchates of Antioch, Jerusalem, and Alexandria were mashed into one See;" and Mr. Bowyer has adopted the same view in stating that "the Crown of England has created a Bishopric in parts beyond the sea, where her Majesty's writ runneth not, to wit, at Jerusalem." After discussing the details of the appointment of Dr. Alexander, Mr. Bowyer concludes, "that the case of the Anglican Bishopric of Jerusalem is exactly in point, and it establishes, that the Legislature and the Crown of England hold, that there is nothing unlaw

ful, or in any respect wrong, in the act of erecting a Bishopric, and appointing a Bishop, and assigning to him a Diocese in a foreign country, without the consent of the Government of that country."

Now if the facts upon which this reasoning is based, were correctly set forth by Mr. Bowyer, there would be some weight in the argument in the way of what logicians term an argumentum ad verecundiam; but it happens that both Mr. Bowyer and Dr. Wiseman have been misled by incorrect information, or have gone astray in the absence of correct data. Mr. Bowyer says, "the plain honest question is thisDid or did not the Crown constitute and erect a Bishop's See and Bishopric in foreign parts at Jerusalem ?"

The issue being thus concisely raised, the answer to Mr. Bowyer's question is not far to seek. The Crown of England has not constituted or erected a Bishop's See, or Bishopric, at Jerusalem. If Mr. Bowyer had only had recourse to the authorised sources of information, he would not have made so great a mistake as to confound the proceedings under 5 Vict. c. 6. with those usual in the erection of episcopal Sees by the Crown of England. Dr. Alexander was merely consecrated to the office of a Bishop by virtue of a License* from the Crown, granted to the Archbishop of Canterbury pursuant to 5 Vict. c. 6., which provided that "such Bishop or Bishops so consecrated may exercise within such limits as may from time to time be assigned for that purpose in such foreign countries by us, spiritual jurisdiction over the Ministers of British Congregations of the United Church of England and Ireland, and over such other Protestant

* See Appendix, p. lxxxix.

congregations as may be desirous of placing themselves under his or their authority." Dr. Alexander accordingly went to Jerusalem invested with the episcopal office, and empowered by the Crown of England to exercise spiritual authority over British congregations. But there was not any See or local Bishopric in his case any more than in the case of the Roman Catholic Bishops in partibus, to whom, in their superadded character of Vicars Apostolic, Dr. Alexander bore some resemblance. He had been consecrated "Bishop of the United Church of England and Ireland in Jerusalem." This was not the title of a See, but the description of his Office. He was not addressed by the Crown of England as the Bishop of Jerusalem, in like manner as the colonial Bishops are addressed by the titles of their Sees, but he was addressed as the Right Rev. Dr. Alexander. Again, Dr. Alexander was only empowered to exercise spiritual jurisdiction in foro conscientiæ over certain congregations; he had not what is properly termed ecclesiastical jurisdiction in foro externo, such as the Bishop of a See may exercise and although permitted to superintend other Protestant congregations than British, it is well known that the King of Prussia, whose subjects were here contemplated, was a consenting party to this arrangement. But it is said by Mr. Bowyer, that the Bishop was to receive into his Church Jewish and Gentile converts, at least that it is so alleged in "an authorised statement of the proceedings." Who may be responsible for this statement does not appear; but thus much is certain, that the Crown of England is not bound by the statement. On the contrary, the Crown took especial care to communicate to the Ottoman Porte, through its envoy at Constantinople, that Bishop Alexander went to Syria under strict