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losity on the part of a prelate punctiliously anxious in the forms of his office. Thus they have suffered the legal term of six months to elapse without bringing a writ. But no sooner is this probationary period at an end than their eyes are opened. A startling change takes place in the tone of the Bishop's correspondence: he has found the difficulty in their title insuperable; and his attorney drops the mask, and recommends them, if they think fit, to resort to their legal remedy. The luckless patron vainly remonstrates; his lawyer reminds the Bishop that he had only disclosed the title out of courtesy, and 'under the idea of being in the most honourable hands.' But all is to no purpose. The lapse has accrued. It is true that some great writers on Law* have held a lapse to be a mere trust in law,' to be exercised by the bishop as for the patron, and to his behoof:' an idea of this kind is a gloss unknown to Bishop Philpotts. Having managed to effect a lapse, he proceeds to treat the living as his private property, and immediately institutes some relative or friend. Of course we need not say that in such cases he is only performing a painful duty which he ' owes to the Church,' and that the flaws in the patron's title are forced upon his notice by his legal advisers.' But his own view of the course which he adopts is best explained in his own words, given upon oath, when he was cross-examined by Mr. Cockburn, in the celebrated Latimer case.

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'Mr. Cockburn. Your Lordship instituted proceedings to set ' aside that election [to the living of Chudleigh].

Bishop. No, I did not. What I did was this. I resisted the ' validity of the presentation.

'Mr. C. I believe your Lordship claimed the right to present 'yourself?

Bishop. It did lapse. I made no such claim; it having reverted to the see by lapse.

'Mr. C. You objected to the election ?

Bishop. I did not object to the election. The objections were taken by my lawyers; and I cannot state exactly what they were (!). 'But the upshot of the thing was, that the validity of the present'ation was what I was advised to object to; and I did as they • advised me.

'Mr. C. I suppose you submitted the matter to the consideration ' of your lawyer first? [a very pregnant question this!]

Bishop. Certainly (!)' [an answer remarkable for its consistency with the preceding!]

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* Godolphin says, a lapse is not an interest naturally, but a mere 'trust in law, the object of which trust is to provide the church 'with a rector in default of the patron, yet as for him and to his 'behoof.'

1852.

His Love of Lapses.

79

In this case of Chudleigh the spoil was rescued from the Bishop's grasp, even before he had time to seize it, by the vigorous measures of the patrons. But even where he has usurped a living, and collated to it wrongfully (by the method which we have described above), he has been sometimes compelled to disgorge his prey by that formidable writ of Quare impedit, to which we have before alluded; a writ whose name must sound as detestably to the ears of Bishop Philpotts, as the name of Parliament did to those of Archbishop Laud. To illustrate the preceding statement, we will relate the particulars of two cases which became the subject of litigation: the first, as an example of successful resistance to the Bishop's usurpation; the second, one of that class of cases (unhappily far more numerous) where the patron has been compelled to submit to spoliation from pecuniary inability to sustain an expensive lawsuit.

Within a single month, in the autumn of 1837, the Bishop of Exeter presented by lapse to three different livings, viz. Brushford, Roborough, and Combpyne. We mention this in passing as a sample of the vigour of his administration. The two first of these presentations were not (so far as we know) the subject of litigation, but that of Combpyne was contested, and the cause was decided by Lord C. J. Tindal in Trinity Term, 1839. The particulars of the case are not without interest. On the avoidance of the living (a small rectory in the South of Devon) the patron presented a clerk, anticipating no difficulty, as the right had been exercised by the same party three times in the preceding thirty-five years, and as there was no opposition from any quarter. The Bishop, however, (through his secretary) asked for an inspection of the title deeds; and the legal adviser of the patron, through implicit reliance on the Bishop's honourable intentions, complied as a matter of courtesy with a demand which he might have refused as a matter of law. The consequence was, that the Bishop suggested a very ingenious objection to the patron's title; viz. that he was tenant-in-common with a Roman Catholic; and that, as the right of presentation. by Romanist patrons in Devonshire is vested in the University of Oxford, the said University ought to have joined in the presentation. This objection, however, was not disclosed till the six months had expired; up to that time the Bishop's secretary only required further information to complete the title. very day on which the alleged lapse accrued, the patron's legal adviser received for the first time notice of the Bishop's intention to reject the nomination on the ground just mentioned.. The Bishop declared, that his sole object was to preserve the right of the University of Oxford; but, singularly enough, he

On the

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collated to the living a protégé of his own, without even notifying the disability of the Popish patron' to the University, although by statute (12 Anne, c. 14.) he was bound to do so. Hereupon a writ of Quare impedit was brought by the patron; to which the Bishop (after causing much needless delay) demurred on the point of law, and pleaded that he had no notice 'that W. Knight (the co-patron) was a Roman Catholic till long after the right to present by reason of lapse had devolved ' on him.' The replication to this plea showed that the Bishop's secretary had acknowledged the receipt of such notice before the lapse; and a letter was produced from the Bishop himself directly contradicting his own plea. The case, in fact, was so clear, that Sir F. Kelly, the able advocate of the Bishop, was obliged to admit (in his argument) that the Bishop had notice 'before the lapse accrued.'*

After hearing the argument on the point of law, the Court decided in favour of the patron, whose living had in the meantime been usurped by the Bishop's nominee for two years. The judgment of the law having been pronounced, we might have supposed that the Bishop would be eager to remedy the injustice he had committed, and atone for the heavy expenditure which he had thrown on the injured party, by immediately instituting the rightful incumbent. On the contrary, the delays interposed were so vexatious, that at last the patron was compelled to appeal to the Metropolitan for redress, when he obtained from the right-minded Archbishop Howley immediate institution. Thus the case of Mr. Gorham was not the first where the authority of the Archbishop of Canterbury was called in to perform an act of justice which the law had imposed on the Bishop of Exeter. Nor was Archbishop Sumner the first Archbishop whose metropolitan jurisdiction was invoked to restrain this contumacious suffragan. And this enables us better to understand that bitterness of feeling with which he speaks of the ' vast and irresponsible power of the Primate of all England.' -Irresponsible (said I)? that is a light word-it is a tran'scendent power, riding over every diocese, and controlling the 'judgment of every bishop within his province.' No doubt, it must be disagreeable for a bishop to have his resistance ́over' ridden,' and his judgment controlled,' by this vexatious subjection to a superior who will not allow him to do what he will 'with his own.' For is not every diocese in itself a whole'? † And is not every bishop by divine right the absolute ruler of

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* See the report of the case in the 'Jurist,' August 24. 1839. † Pastoral, p. 108.

his diocese? No wonder then that our prelate 'finds his spiri'tual rights, duties, and responsibilities in Christ's holy Catholic ' and Apostolic Church, impaired and marred by his position in 'the national Church."*

The next case that we shall mention is one of peculiar cruelty and injustice; and it excited at the time of its occurrence, a very general, though fruitless indignation. The living of Stockland, one of the most valuable in the diocese, became vacant. The history of the advowson is curious. In the reign of James the Second, it had been the property of the incumbent, who was involved in Monmouth's rebellion, and condemned to death by Judge Jeffreys. The unfortunate man was, however, allowed to ransom his life by a heavy fine, which he had no means of raising except by the sale of the advowson. The freeholders of his parish therefore combined to purchase the advowson from him, and contributed for that purpose the sum required to save their vicar's life. Thus they became themselves possessed of the advowson as tenants-in-common, and their legal representatives have continued to exercise the right of presentation without dispute to the present time. The late incumbent (a Mr. Cox) had become by purchase the representative of the majority of these original co-tenants, and thus virtually the owner of the advowson, which he bequeathed as the sole provision to his eldest son. Thus the property had once more reverted to the same state in which it had been before the campaign of Jeffreys; and had Jeffreys been bishop, he would no doubt have dealt with it exactly as Bishop Philpotts has thought fit to do. On the avoidance of the living Mr. Cox presented himself to it; but an opposition (so suited to promote the Bishop's designs that it might have been contrived by himself) was made to this presentation by the representatives of a small minority of the co-tenants. So, when Appius Claudius coveted the possession of Virginia, she was brought into his court by the claim of Marcus. The Bishop, however, was more prudent and less hasty than the Decemvir. He did not at once disallow the claim of Virginius. He temporised as usual, requiring evidence of title, and, when that was furnished, demanding further information, till at length the six months expired, before the deluded patron had taken any legal measures against him. The other party (meanwhile) took no steps whatever to maintain their presentation; but they had (without intending it) provided the Bishop with an excuse for alleging his inability to decide between two adverse patrons. Of course the difficulties

* Pastoral, p. 109.

VOL. XCV. NO. CXCIII.

G

of the question were too great for one so entirely inexperienced in legal technicalities: and we must charitably believe that he had never heard of the commission of inquiry* whereby a bishop is to resolve his doubts in such disputed cases. Accord

ingly he could find no resource save that of cutting the Gordian knot, by bestowing the litigated property on his own wife's nephew!

The morality of this proceeding was exactly the same as that of the judge, who was so perplexed by the rival claims of two litigants, that he could only escape from the difficulty by adjudging the sum in dispute to himself. Such conduct in a temporal judge would be followed by retribution so instantaneous and so severe, that our narrative may reasonably appear impossible and inconceivable; but our bishops have been left almost irresponsible in the administration of their more sacred trusts. It appears to have been assumed that a bishop could not be capable of perverting his judicial functions into a means of personal advantage or family aggrandisement and it is fair to say that generally this confidence has been justified. Bishop Philpotts is, so far as we know, the only bishop who ever made his judicial power of institution an instrument to provide for his own relatives out of the family property of others.

But to return to our narrative. Our readers may imagine the consternation of the unfortunate clergyman, whose sole provision was thus taken from him to enrich the Bishop's nephew. Still, it may be said, he had his legal remedy. The courts were open; the bishop and clerk might implead one another. This expensive redress then, Mr. Cox prepared to seek; the writ was brought, the declarations filed, and proceedings commenced. The diocese, scandalised by an act of nepotism so flagrant, hoped that the law would soon restore the rightful owner to the possession of his only property. But such natural expectations were doomed to disappointment. After long delay, the Bishop and his nominee pleaded to the action. The Bishop's pleas filled ninety-two sheets of parchment, his nephew's occupied thirty-nine! In these pleas they required that the title of every one of the representatives of the original co-tenants should be deduced from the year 1688!† The establishment of the pedigrees alone (we need hardly say) would have exhausted a moderate fortune. The lawyers employed by the ejected clergy

*The jus patronatûs: see above, p. 77.

†The iniquity of this will appear still more clearly, when we state that both the rival parties claiming the presentation admitted the titles to be correctly deduced.