The Works of the Rev. Jonathan Swift/Volume 11/From Francis Atterbury to Jonathan Swift - 2
FROM BISHOP ATTERBURY.
MY gout kept me so long a prisoner at Westminster this winter, that I have fixed at Bromley this spring much sooner than ever I yet did, for which reason my meeting with Dr. Younger will be more difficult, than it would be, had I been still at the deanery.
The best (or rather the worst) is, that I believe he can say nothing to you upon the matter about which you write, which will please you. His deanery is of the old foundation, and in all such foundations the deans have no extraordinary power or privilege, and are nothing more than residentiaries, with a peculiar corps belonging to them as deans; the first of the chapter, but such, whose presence is not necessary toward the dispatch of any one capitular act, the senior residentiary supplying their absence, in every case, with full authority. Thus, I say, the case generally is in the old deaneries, unless where the local statutes may have expressly reserved some peculiar power or privilege to the deans of those churches. But none of them, I dare say, have a negative, either by common law, custom, or local statute. Thus much to show you, that a nice search into the peculiar rights of the dean of Sarum will be needless, if not mischievous to you. The three deaneries, which I have had, are all of the new foundation, by Henry VIII, or queen Elizabeth. In the charters of all there is a clause, empowering the dean to make, punish, and unmake all the officers. In the statutes of one of them (Carlisle) the dean's consent, in all the graviores causæ, is made expressly necessary, and in the other two nothing from the foundation of those churches ever passed the seal without the dean's sigillitur first written on the lease, patent, presentation, &c. which is a manifest and uncontested proof of his negative. As to the power of proposing, that I apprehend not to be exclusive to the other members of chapters. It is a point chiefly of decency and convenience; the dean being the principal person, and supposed best to be acquainted with the affairs of the church, and in what order they are fittest to be transacted. But if any one else of the body will propose any thing, and the rest of the chapter will debate it, I see not how the dean can hinder them, unless it be by leaving the chapter; and that itself will be of no moment in churches, where his absence does not break up and dissolve the chapter; as it does, where his consent to any thing there treated of is expressly required before it can pass into an act. Where, indeed, he is allowed such a negative, he is generally allowed to make all proposals; because it would be to no purpose for any one to make a proposition which he can quash by a dissent: but this is not, I say, a matter of right, but prudence.
Upon the whole, the best advice I can give you, is, whatever your powers are by statute or usage, not to insist on them too strictly in either of the cases mentioned by you, unless you are very sure of the favour and countenance of your visitor. The lawyers, you will find, whenever such points come before them for a decision, are very apt to disregard statutes and custom in such cases; and to say that their books make the act of the majority of the corporation the legal act of the body, without considering whether the dean be among the minority or not. And therefore your utmost dexterity and address will be necessary, in order to prevent such a trial of your right at common law; which, it is ten to one (especially as things now stand) will go against you. If the refractory part of your chapter are stout, and men of any sense, or supported underhand, (the last of these is highly probable) you had better make use of expedients to decline the difficulty, than bring it at present to a decision. These are the best lights, and this the best advice, I can give you, after a long experience of the natural consequence of such struggles, and a careful search into the foundation of the powers and privileges claimed and disputed on the one side and the other. I wish I could say any thing more to your satisfaction, but I cannot; and I think, in all such cases, the best instance I can give you of my friendship, is not to deceive you.
There is a statute in the latter end of king Henry the eighth's reign worthy of your perusal. The title of it relates to the leases of hospitals, &c. and the tenour of it, did, in my apprehension, seem always to imply, that, without the dean, master, &c. nothing could be legally done by the corporation. But the lawyers will not allow this to be good doctrine, and say, that statute (notwithstanding a constant phrase of it) determines nothing of this kind, and, at the most, implies it only as to such deaneries, &c. where the dean, master, &c. have the right of a negative, by statute or usage. And few lawyers there are, who will allow even thus much. I cannot explain myself farther on that head; but, when you peruse the statute, you will see what I mean; though, after all, it does not, I believe, include Ireland. However, I look upon it as a declaration of the common law here in England.
I am sorry you have any occasion to write to me on these heads, and much sorrier that I am not able to give you any tolerable account of them. God forgive those, who have furnished me with this knowledge, by involving me designedly into those squabbles. I thank God, I have forgiven them.
I will enter into nothing but the inquiries of your letter, and therefore add not a word more, either in English or Latin, but that I am, with great esteem, good Mr. dean, your very affectionate humble servant,