Memorandum delivered to Cardinal Mazzella
[See Diary, April 19th, 22nd, 28th; May 12th; and Letters of May 6th, 7th, 8th, and 16th.]
Eminentissime et Reverendissime Domine,
ABHINC paucos dies telegramma viro rev. L. Duchesne dedi, quo confrater meus E. G. Wood mihi renuntiarat se mandatum regium pro consecratione Barlovi repperisse.
Hodie ipsius documenti apographum ab eodem E. G. Wood recepi, una cum expositione modi quo huiusmodi instrumenta tempore Henrici VIII expediebantur atque in archivis reponebantur, de qua re diligentissimam apud ipsa archiva inquisitionem instituit. Quae ille docuit in formam sequentem redegi.
Iuxta statutum 25 Hen. VIII cap. 20, de electione et consecratione episcoporum anno 1533 factum, provisum est ut rex de electione certior factus per litteras, patentes sub magno sigillo praedictam electionem archiepiscopo ac metropolitae provinciae significaret; rogando ac mandando ut archiepiscopus, cui talia significarentur; praedictam electionem confirmaret, et praedictam personam ita electam ad munus et dignitatem huiusmodi investiret et consecraret, eique omnes benedictiones daret, omnibusque caeremoniis aliisque rebus uteretur quae in hac parte necessaria forent. [The king's Highness, by his letters patent under his great seal, shall signifie the said election, if it be to the dignity of a bishop, to the archbishop and metropolitane of the Province where the see of the said bishoprick was void, if the see of the said archbishop be full and not void: and if it be void, then to any other archbishop within this realm or in any other the king's dominions; requiring and commanding such archbishop, to whom any such signification shall be made, to confirm the said election, and to invest and consecrate the said person so elected to the office and dignity that he is elected unto, and to give and use to him all such benedictions, ceremonies, and other things requisite for the same.] Quae ut mature intelligantur necesse erit quaedam de modo Litterarum Patentium expediendarum exponere.
Primo igitur litterae brevissime redactae sub Signatura Manuali ipsius regis parabantur, quae ad Custodem Sigilli Privati intra octo dies mittebantur. Ille instrumentum completis clausulis parabat, cuius duo apographa facta sunt, alterum, cui rubrica erat Per breve sub Sigillo Privato in archivis Sigilli Privati conservandum, alterum cui rubrica Sub Sigillo Privato ipsumque sigillum impressum est. Hoc autem Summo Cancellario datum est, cum praefatione de Litteris Patentibus sub Magno Sigillo expediendis. Quo recepto ille instrumentum definitivum parandum curabat, cuius iterum duo apographa facta sunt; alterum in Rotulis Patentibus apud archiva cancellariatus conservandum, alterum quod Magno Sigillo impressum tanquam Litterae Patentes ipsi personae missum est cui rex actu rescribere voluisset.
Ex dictis patet quinque instrumenta exstare possunt, ex quibus certissimo appareat huiusmodi Litteras Patentes expeditas fuisse. Haec sunt: i° Breve sub Signatura Manuali, quod in archivis Sigilli Privati, sub titulo generali Signed Bills conservari solet: 2° Instrumentum Per breve sub Sigillo Privato in eisdem archivis conservatum: 3° Instrumentum Sub Sigiilo Privato a Cancellario receptum et in eius archivis repositum: 4° Litterae Patentes sub Magno Sigillo actu emissae: 5° Apographum earundem litterarum in Rotulis Patentibus conservatum. Ipsae igitur Litterae Patentes in possessionem eius cui directae sunt tradebantur; alia instrumenta omnia in archivis reperiri debent. Tempore autem de quo agitur depositiones in archivis incuriosissime fiebant; nee facile invenietur casus in quo omnia huiusmodi usque hodie asservantur. Quod si vel unum ex his instrumentis inveniatur alia necessario expedita fuisse manifestum est.
Quid ergo de Barlovi promotione habemus? Primum ex istis instrumentis, quod et aliorum fons et origo est, adhuc in archivis invenitur. ["Privy seals Bundle," April, 1536.] Tale est:
Rex reverendissimo in Christo patri Thomae Cantuar. archiepiscopo totius Angliae primati salutem. Sciatis quod electioni nuper factae in ecclesia Cathedrali Meneven. per mortem bonae memoriae dom. Richardi Rawlyns ultimi episcopi ibidem vacante de reverendo in Christo patre dom. Willelmo Barlow sacrae theologiae professore tune episcopo Assaven. et Mon. de Bisham Sarum dioec. commendatorio perpetuo in episcopum loci illius et pastorem regium assensum adhibuimus et favorem, et hoc vobis tenore praesentium significamus ut quod vestrum est in hac parte exequamini. In cuius etc. Teste etc."
Hoc igitur dato instrumento necesse erat ut Gustos Sigilli Privati litteras iuxta morem completas redigendas curaret. In his autem clausulae quae sub Signatura Manuali brevius expressae erant plenis phrasibus expansae sunt. Inter alia sensus verborum "ut quod vestrum est in hac parte exequamini" a scriptoribus iuxta normam scribendi ita exprimitur:--"Rogantes et in fide et dilectione quibus vos tenemini firmiter vobis mandantes quatenus praefatum Willelmum Barlow Episcopum Menevensem electum confirmare et eundem Willelmum in Episcopum Menevensem consecrare ipsum-que prout moris est episcopalibus insigniis investire, ceteraque peragere quae vestro in hac parte in-cumbant officio pastorali iuxta formam statuti in ea parte editi et provisi velitis diligenter cum effectu." Ex instrumento ita elaborate Litterae Patentes intra paucos dies expedirentur necesse erat, ut omnia secundum leges fierent. [This paragraph is altogether inaccurate. For the correction of the mistake, see the two letters to the Tablet, here following.]
Nihil ex his nisi solum Breve sub Signatura Manuali repertum est. Sed ex hoc omnia dependent, et notissimum est ex registro Cranmeri eum Litteras huiusmodi Patentes recepisse, et iuxta earum tenorem Barlovi electionem die 21 Aprilis confirmasse. Quo die ad consecrationem perrexerit ignoramus.
Haec si ad quaestionem aliquam dirimendam utilia fuerint Eminentiae vestrae humillime submittit
Servus in Christo observantissimus
T. A. LACEY.
Romae in via dicta del Tritone 36 13 Maii 1896.
II Letters to the Editor of the "Tablet"
SIR,--I am now in a position to place before your readers the results of some further investigation of the Royal Mandate for Consecration.
It may be well to recall the origin of the question. Father Sydney Smith in a pamphlet, and Canon Moyes in your columns, contended that in the case of Barlow all documents relating to election are extant, all relating to consecration are missing. Among others they showed the Royal Assent to the election as extant, the Royal Mandate for the consecration as missing. They took these to be two separate documents, the former required by old custom anterior to the Act of 1533, the latter required by the terms of that Act.
I replied in my Supplementum that these two are one and the same thing; to speak more strictly, any writ of Royal Assent is also a Mandate for Consecration. I made one considerable mistake in the statement of my case, which I will correct lower down.
I have already shown that it is a mistake to suppose a writ of Assent to have been in use before the Act of 1533. For more than a century promotions had all been made by Provision, and there was no occasion for such a writ. The Act of 1533 (25 H. VIII, cap. 20) is, therefore, our starting point. By this Act the form of capitular election was restored, subject to the Royal License or conge-d'élire. The election was to be reported by the Chapter to the King. The procedure then to be followed is carefully set out in the Act. "The King's Highness, by his Letters Patents under his great seal, shall signify the said election, if it be to the dignity of a Bishop, to the Archbishop and Metropolitan of the Province where the See of the said Bishoprick was void, if the See of the said Archbishop he full and not void: and if it be void, then to any other Archbishop within this Realm, or in any other the King's Dominions; requiring and commanding such Archbishop, to whom any such signification shall be made, to confirm the said election, and to invest and consecrate the said person so elected to the office and dignity that he is elected unto, and to give and use to him all such benedictions, ceremonies, and other things requisite for the same, without any suing, procuring, or obtaining any Bulls, Letters, or other things from the See of Rome for the same in any behalf." The next section provides that the election of an Archbishop is in like manner to be certified to some Archbishop with two other Bishops, or to four Bishops.
In carrying out these provisions, what precedents had the King's advisers to go on?
I. There was a writ in common use for the Royal Assent to the election of certain Abbots and Priors. This writ went to the Bishop of the diocese where the convent was situated, signifying to him the election, "ut quod vestrum est in hac parte exequamini." That is to say he was ordered to invest and institute the elect.
2. In earlier days, when capitular election was still in force but confirmations had been reserved to the Roman Court, the King signified his assent to the Pope, praying him to do his part. Such a letter of the year 1374 is extant, in which the King signifies to the Pope his assent to the election of Neville to York.
3. In the year 1416, during the Great Schism, no Pope was recognized in England. In consequence, the King, with the special consent of Parliament, authorized Chichele, the Archbishop of Canterbury, to confirm the election of Wakering to Norwich. The writs are extant, setting forth the reasons for the unusual course taken and ordering the Archbishop "omnia quae vestro canonico incumbunt officio in hac parte peragatis et exequamini" (Rymer ix., 337-338). Wakering's writ of Restitution recites that this has been done. The writs of Restitution recite the same procedure in the cases of Chandler of Sarum, and Lacey of Exeter, but the patents apparently are not extant (Ibid. 450-539).
These are the precedents. When we examine the writs actually issued during the years immediately following the Act we find an extraordinary variety of practice. Sometimes the above precedents, one and three, were followed pretty closely; the vacation and election are recited, the King's assent is signified, and the Archbishop is simply directed to do his duty, "ut quod vestrum est in hac parte ulterius exequamini cum effectu." Minor variations in the wording are frequent, as was natural in a new writ, not of common use. This I will call the shorter form.
At other times an entirely new form was used, which adopted a good deal of the wording of the Act, the Archbishop being specifically directed to confirm and consecrate. Allowance made for variations, the following is the ordinary style: "Rogantes et mandantes quatenus praefatam electionem ipsumque N. electum confirmare et eundem N. consecrare, ipsumque prout moris est episcopalibus insigniis investire, ceteraque peragere quae vestro in hac parte officio pastorali incumbunt iuxta formam statuti in ea parte editi et provisi velitis diligenter cum effectu." I will call this the longer form.
Two Bishops however, Lee of Lichfield in 1534 and Fox of Hereford in 1535, had writs drawn in a form altogether exceptional. A third common form was afterwards introduced, directing confirmation and consecration in general terms, which appears to have completely ousted the shorter form.
The first and second of these forms--the shorter and the longer--are those which have been distinguished as the Assent to the Election, and the Mandate for Consecration. Both were supposed to be required. But on carefully reading the Act one sees that only one instrument is required, in which the King shall at once signify his assent to the election, and direct the Archbishop to proceed. As a matter of fact, in some cases one Patent was issued, in other cases two; sometimes the shorter form alone, sometimes the longer alone, sometimes both; sometimes, as I have said, a special form.
Here I wish to acknowledge the mistake into which I fell when writing my Supplementum. I assumed that in no case were the two forms of the writ issued. My mistake was due to my misunderstanding part of the information sent to me, and this again was due to the fixed idea, derived from Father Sydney Smith's pamphlet, that the shorter form was a writ of common use, expanded for the purposes of the Act of 1533 into the longer form. I was clearly in error, since in some cases both were issued. But I have not yet been able to determine the true relation between the two, or the reason why, in some cases, both were issued. My contention, however, that they are not rightly distinguished as Assent to Election and Mandate to Consecrate is absolutely established by further investigation.
I have been trying, with the help of Rymer, Gairdner's Catalogue, and Cranmer's Register, to determine precisely what was done in each case during the first few years after the passing of the Act--the period of Barlow's promotion. The task is far from complete, but the facts already ascertained are sufficient to prove my contention.
The manner in which the copies of the writs appear in the Register is of capital importance. In the case of each promotion recorded--there are, as is well known, several omissions--the Register contains an elaborate and detailed account of the Confirmation, in which are incorporated, with other instruments, the Patents which we are considering.
Afterwards the Consecration is recorded in a brief entry of about five lines--often omitted, as notably in the cases of Sampson, Reppis, and Barlow--without any details or documents. The Patents, whether one or two, whatever their form, are thus included in the Acts of the Confirmation, and they are all alike entitled in the margin, Litterae Patentes regiae Majestatis super assensu suo. One sees at once how inaccurate it is to describe any of them as specifically Mandates for Consecration. That term belongs indeed to a later period, when under Edward VI capitular elections were abolished, and the king appointed to a bishopric by Letters Patent, commanding the Archbishop simply to consecrate, the only duty remaining to him.
To the ordering of the Register which I have here described there is only one exception. Shaxton, promoted to Sarum in 1535, received two Patents, but the second was not issued until four days after his confirmation. This writ is therefore not included in the Acts of the Confirmation, but is copied in the Register after them.
So far I have shown only that the Longer Form is not specifically a Mandate for Consecration, as distinguished from the Shorter Form. But my position proves to be stronger than I thought. The combined evidence of the Records and the Register proves that the Shorter Form by itself was a sufficient mandate according to the terms of the Act. As I have said, in some promotions only one Patent was issued. Four of these, occurring within a few weeks, are Barlow to St. Asaph, Barlow to St. Davids, Sampson to Chichester, and Reppis to Norwich. In all these cases the Shorter Form only was used. Here are the references:
Barlow to St. Asaph. Patent dated February 22, 1536. Gairdner, 392 (45): Cranmer's Reg. 180 b.
Barlow to St. Davids. Dated April 20, 1536, G. 775 (27) 5 Reg. 205 a.
Sampson to Chichester. Dated die xi junii, 1536 (an obvious error for ix, since he was confirmed with Reppis on June 10). G. 1256 (19); Reg. 189 b.
Reppis to Norwich. Dated June 9, 1536, G. 1256 (12); Reg. 209 a.
[Inaccurate. See the next Letter.]
In these cases Cranmer proceeded to confirm and consecrate on the authority of this Shorter Form alone. Setting aside Barlow, it is certain that he consecrated Sampson and Reppis on June 11. But he had no power to act at all, either to confirm or to consecrate, except on the authority of a mandate given in accordance with the Act. Therefore the Shorter Form is such a mandate.
The contention, then, which I put forward is supported by further investigation. The distinction between the Assent to the Election and the Mandate to Consecrate is unreal. The Royal mandate to consecrate Barlow was issued in one of the forms then current, and is now extant.
Upon the relation of the two forms to each other, and the reason why sometimes both were issued, I have found no further light. In view, however, of that which I have determined, this question is one of little more than antiquarian interest. If I have time to pursue it further, perhaps you will allow me to give your readers the result.
T. A. LACEY. MADINGLEY, August 31, 1896.
SIR,--Insinuations of bad faith add neither dignity to a controversy nor strength to an argument, and so, while always regretting their appearance, I would rather be their object than their author; nor do I fear the general verdict. [This was written, I must admit, in the true controversial style. I do not know what right I had to assume this tone of superiority. I had been correcting a mistake with elaborate detail, a procedure which almost inevitably engenders suspicion. But the detail was necessary, for a mere acknowledgment of the mistake would have been misleading. Stated simply, and without detail, the case was as follows: Two documents were known, commonly distinguished as the Assent to Election and the Mandate to Consecrate. Moved by the suggestion of Sir Walter Phillimore that the Act of Henry VIII required only one such document (Diary, April 19th), I made a further study of the matter with imperfect information at my disposal, came to the erroneous conclusion that the Assent was merely a preliminary draft of the Mandate, and too hastily communicated this conclusion to Cardinal Mazzella, publishing it also in the Supplementum. It was, of course, challenged. After my return to England I made a further examination of the documents at first hand, discovering that both were in some cases issued as Letters Patent, but that either of them was an effective Mandate for consecration within the meaning of the Act.] There are, however, two suggestions of this kind which I would rather not pass over. The writer of your article has said that my reply involved the suppression of one hypothesis and "the tacit substitution of another." Tacit! I thought I had in the most express terms acknowledged the mistake to which he refers, and called attention to the explanation substituted. Again, after quoting the terms of the longer form of assent, you wonder "how Mr. Lacey could, with these words before him, deny that this writ was a Mandate for Consecration." You might indeed wonder, if I had done anything of the kind, especially as my whole contention is that either the longer or the shorter form is a sufficient mandate for consecration. What I said was that neither of them is specifically a Mandate for Consecration--that is to say, as the context clearly shows, for consecration as distinct from other incidents of the promotion.
Permit me to add that if I were all that you think me, still I should not, in treating this question, be tempted to the faults which you impute to me. This particular question has no interest for me but one purely scientific and historical. The case for Barlow's consecration is that which Lingard stated sixty years ago, and which nothing short of direct negative proof can shake. If I prove my contention up to the hilt I add nothing to the strength of that case. In this detached frame of mind I offer some criticisms on your last article.
I. To show that the shorter form of assent existed before the Act of 1533 you allege precedents from the thirteenth century. I should have expected something of the kind at that early period, though I frankly admit I should not have expected anything so exactly similar; but I did not think it necessary to push my quest so far back. The question is whether this form of writ was continuously in use before and after the Act. What bearing upon this question have precedents the latest of which belongs to the year 1327? You seem to allow that for two hundred years before the Act this writ was not in use. Any argument that might be drawn from continuous use therefore disappears.
2. You argue that the shorter form could not have been a Mandate because it was in use during the Middle Ages. "In pre-reformation times," you say, "no English king would, or could, have commanded the Primate to confirm or consecrate a bishop-elect, and such an attitude on the part of the lay power would have been foreign to the whole spirit of mediaeval economy." It is news indeed to hear that mediaeval kings were so tender of the susceptibilities of bishops. I think I could produce many startling instances to the contrary, but two may suffice. The period of the Middle Ages is rather elastic. Would you refer to the early days? There is in Marculfus an ordinary Indiculus of the Frankish kings directing the Metropolitan to consecrate a bishop: "Qua de re statuta praesentibus ordinamus ut cum adunatorum caterva pontificum, ad quos tamen nostrae serenitatis devotio scripta pervenit, ipsum ut ordo postulat benedicere vestra industria studeat" (Migne. P. L., tom. 87, col. 704. Also in Labbe, tom. viii., col. 1865). Would you look rather to a later period? In the year 1416, Henry V, with the consent of Parliament, directs Chichele to confirm Wakering to Norwich in these terms: "Vobis mandamus quod ad confirmationem praefati clerici nostri virtute electionis sibi ut praemittitur factae absque excusatione seu dilatione aliquali procedatis, ac caetera omnia quae vestro canonico incumbunt officio in hac parte peragatis et exequamini" (Close Rolls, H. 5; m. 23. Rymer, ix., 338). With these quotations before you I am sure you will admit at once that this part, at least, of your argument must go.
3. But, indeed, it is useless to ask whether this writ could have been a mandate, if, as I showed, it was actually taken as a mandate. You, therefore, addressed yourself to my crucial cases. And first as regards Sampson, you argue that since Cranmer certified to the King, in express terms, that he had confirmed and consecrated him, therefore he must have received the longer form of Assent, ordering this in the same express terms. The statement of this argument really seems sufficient for its refutation, but I happen to have in hand a direct refutation. Cranmer confirmed Shaxton also on the authority of the shorter form only, and certified the confirmation to the King on March 18, 1535. The longer form of Assent was issued some days afterwards (Cranmer's Reg. 172 a). The certificate, then, clearly does not imply the issue of the longer writ. Again I am sure you will wish to acknowledge the mistake.
The double confirmation of Barlow himself on the authority of the shorter form must be put aside, you think--and you assume my agreement--because the question is about his consecration. But to argue thus you must assume that a writ might be good as a mandate for confirmation, and not good as a mandate for consecration. You can find nothing in the Act to justify this. On the contrary, the Act speaks of a single writ signifying the King's assent, and commanding the Archbishop "to confirm the said election, and to invest and consecrate the said person." A writ which was good for one was good for the other, unless, perhaps, in case one or the other were expressly and exclusively mentioned. The argument, then, stands thus. Cranmer confirmed Barlow on the authority of the shorter form of Assent. But he could not confirm him save on the authority of a mandate to confirm and consecrate according to the Act. Therefore the shorter form of Assent was such a mandate.
So far, then, from Barlow's own case being nothing to the purpose, I might have proved my contention on the strength of that case only.
There remains the case of Reppis. You reply that in his case the longer form was actually issued, and you give your reference to the Patent Rolls, 28 Henry VIII, p. 2, m. 27. I would not for a moment question your categorical assertion, but I have verified it, delaying this letter till I could do so, and I have a real pleasure in making the same acknowledgment of a mistake in this case which I invite you to make in others.
T. A. LACEY.
MADINGLEY, September 23.